Eckhart v. Reidel (16 Tex. 62, 1856)

Hemphill, Ch. J.

This was a suit for damages for the breach of a bond or contract for the sale of land. The bond purported to be the act of Jonathan York, Administrator of the estate of John York, dec'd, and Caesar Eckhart, attorney in fact for Charles Eckhart, and was signed by Jonathan York, [L. S.] Administrator of John York, and Caesar Eckhart, attorney in fact for Charles Eckhart. Judgment by default was entered against York a,nd he has not appealed. The defendant Caesar Eckart offered documentary evidence to prove that the title of the land was in his principal Charles Eckhart, and also that he was duly constituted attorney in fact of the said Charles Eckhart. The evidence was rejected. Judgment was entered against Caesar Eckhart personally, and" the only point made on Ms appeal is, whether he, or his prin- • cipal, Charles Eckhart, was liable in the agreement.

The question as to the mode in which an attorney in fact should execute his authority, was raised in the case of Byers v. Giddens’ heirs, 12 Tex. 75, and was to some extent discussed, though without the benefit, comparatively, of authorities. The counsel for appellant in this case has presented some brief but striking views, and we shall proceed to consider the subject, though without the aid of argument from the appellee. It is apparent, at a glance, that the law on this subject is a mass of contradiction, if not of absurdity ; the rule in relation to the execution of sealed instruments by an attorney being the opposite of that recognized in the execution of unsealed or commercial contracts.

The distinction in the forms which a contract (when executed by an agent,) must assume, in order to be valid and binding on the principal, is expressed by the Editors of American Leading Gases, (1 vol. 589,) substantially as follows, viz: A contract under seal, by an agent, is not binding on the principal, unless it profess to bind him and be executed in his name and as his deed. A written contract, not under seal, is binding on the principal, in whatever form executed, if the principal's name appear in it, and the intention to bind him be apparent, but not unless Ms name appear in it. A verbal contract is binding on the principal if his name be disclosed, and the person making it contract as his agent and in his behalf.

In relation to sealed instruments, it is said, if a person, authorized by a power to convey under seal the lands of his principal, should convey by deed in his own name, the conveyance will be void ; and it will make no difference, that in the deed the agent describes himself as such; as if he says, “ Know all men by these presents, that I, A. B., as agent of “ C. D., do hereby grant, sell, convey,” &c., or if he signs and seals it A. B. for C. D.; for, in such a case, it is still hia own deed, and not that of the principal. (Story on Agency, Sec. 148.) Had the deed commenced, “ Know all men by these “ presents, that I, C. D., by my agent A. B., do hereby grant,” &c., it would have been, according to the rule, the deed of the principal and not of the agent.

The reason of this distinction, as given by the authorities, is, that an interest, to pass by an instrument, must purport to be conveyed by him in whom it is vested ; a power of attorney is but a naked power, and transfers no interest to the attorney ; and consequently, as no interest is thereby vested in the agent, his own conveyance can pass none to his grantee. • It cannot pass the interest of the principal, for he is not a party thereto, nor the grantor thereof; and it is not the instrument which he has authorized to be executed. (Story on Agency, Sec. 150.) These positions and inferences, though technical and fallacious, bear a semblance of reason, and might for want of a better, be regarded as a sufficient justification, provided they were, throughout the law, uniformly maintained.— But such is not the case. On the contrary, in commercial contracts, or unsealed instruments, the whole doctrine is repudiated ; and the principal is bound, and the act, in whatever manner executed, is held to be his and not that of the agent, provided it appears that the agent was acting in his capacity as such and not in Ms individual character. For instance, if an agent be authorized to draw, in the name of Ms principal, a promissory note,-and he draws it thus, “ I promise to pay J. “ S. or order,” and.signs it “ for C. D., A. B.” this would be the note of C. D., and not that of A. B., although the words be “ I promise,” &c.; and the reason is, that the intention to bind the principal is obvious from the face of the instrument; and this intention will be enforced, however informally it may be expressed. (Story, Sec. 154.) Had the instrument been sealed, though in form, and in terms, and in every other respect, with the exception of the seal, it be identical and the same, yet the construction would have been different, at least in Courts of Law. The intention then to bind the principal ■could not have been perceived. It would be held the act of the agent and binding on Mm alone. The potency of a seal must be most extraordinary, since its presence or absence has the effect of changing the parties to a contract.

But there is another variance in the law relative to the proper mode of executing an authority. The rule in equity is diverse from that prevailing at law, and it is this, that in ®I1 cases where an agent has contracted within the sphere of Ms agency, and the principal is not, by the form of the contract, bound at law, a Court of Equity will enforce it against the principal, upon principles ex aequo eí tono. (Story, Sec. 162.)

To illustrate the effect of the variance between law and ■equity, on this point, I will refer to the case of Welsh v. Parish, Miller & Co., 1 Hill's Law Reports, So. Ca. p. 155. Patrick Usher had appointed Wm. Usher his attorney, and, untier this appointment, the said William sold á vessel belonging to his principal, reciting that, “I, William Usher, Jr., at- “ torney in fact of Patrick Usher, owner of the brig Junietta, “ grant,