#### Hewes v. Doddridge &c.*

August, 1842,

Lewisburg.

(Absent Allen, J.)

Powers of Attorney—Construction of Powers.†—Under a power of attorney, authorizing the attorney to act in every species of business wherein the principal may be concerned or interested in the United States, Held, notwithstanding tire broad terms of the power, the attorney is not authorized to pledge the property of his principal, to secure the individual debt of the attorney.

On the 17th of September 1833, David T. Hewes of Harrison county made a power of attorney, whereby he appointed William Thomas of Prince William county his agent and attorney in fact, for him the said Hewes and on his behalf, and in his name, to do, transact and perform “all and every thing or things, act or acts, which he may deem proper to be done (always consulting his own judgment in the act or acts to be done and performed) in any and every species of business wherein I (the said Hewes) may be in any wise concerned or interested in the United States.” Power was given the attorney to prosecute suits in the name of the principal, to make bargains, contracts or sales in his name, to accommodate, by compromise or otherwise, any question of or concerning property between the principal and persons in the United States, and to do such other and further acts as he might think right and just to do; the principal declaring that he intended to vest his said *agent with unlimited power in the execution or performance of all things or matters wherein he was in any wise interested or concerned in the United States. And the power concluded in these words: “I do hereby declare his every act in that capacity to be legal and valid against myself, my heirs, and every other person or persons whatsoever.”

Soon after the execution of this power of attorney, the following bill of sale was made:

“In consideration of Jasper Y. Doddridge and William L. Jackson becoming liable for David T. Hewes as well as myself, I, as agent and attorney of David Hewes, and for myself, do hereby convey to said Doddridge and Jackson one grey mare lately owned by John Davis, and one grey horse lately owned by Jesse Jarvis, to have and to hold the same as their property. Witness my hand and seal, as agent and attorney aforesaid, and for myself, this 9th October 1833.

William Thomas, agent and atty. for D. Hewes, [Seal.] William Thomas [Seal.]”

An action of detinue being brought by Doddridge and Jackson against Hewes for the horse and mare, the plaintiffs gave in evidence the power of attorney and bill of sale, and proved that since the execution of the latter, and before the institution of this suit, the horse and mare were in possession of the defendant, who claimed the same as his own, and refused to deliver them to the plaintiffs. The defendant then read in evidence a single bill to Waldo P. Goff for 85 dollars, dated the 9th of October 1833, payable three months after date, which was executed by Thomas as principal and the plaintiff Jackson as his surety therein, and offered evidence tending to prove that the bill of sale executed by Thomas to the plaintiffs was intended to indemnify *Jackson as surety to said Goff. And thereupon the said defendant moved *88the court to instruct the jury, that if, from the whole evidence before them, they were satisfied that the said bill of sale was made and intended to indemnify the surety for said Thomas in the bond to Goff, and that the debt due to Goff was the individual debt of said Thomas, then the plaintiffs could not recover, Thomas not being authorized by the power of attorney to pledge the horses to secure the payment of his individual debt. The court declined giving this instruction, and instructed the jury that the power of attorney invested Thomas with full power and authority to make sale or dispose of the property of Hewes, so long as the said power of attorney was unrevoked and in force; that under that authority it was competent to the attorney to execute the said bill of sale, and to vest thereby a legal estate in the said horse and mare in the plaintiffs; and that the legal rights of the plaintiffs to the said property are not affected by reason of the transfer by the attorney in fact being in consideration of one of the plaintiffs becoming surety for .a private debt of the said attorney in fact. To these opinions of the court the defendant excepted.

Verdict and judgment being rendered for the plaintiffs, a supersedeas was awarded the defendant.

The cause was submitted without argument, by William A. Harrison for the plaintiff in error, and George H. Gee for the defendants in error.

*

For monographic note on Master and Servant, see end of case.

†

Powers of Attorney — Notice to Third Person.— Where one deals with an agent under written power he must take notice of his powers, as an act not authorized is not binding on the principal. Dyer v. Duffy, 89 W. Va. 152. 19 S. E. Rep. 541, citing *Hewes v. Doddridge, 1 Rob.*143. The *principal*case is also cited in Stainback v. Read, 11 Gratt. 281. See monographic *note*on “Master and Servant” at end of case.

STANARD, J.

It is necessary to the validity of a title claimed under the act of an agent or attorney, that the act be within the scope of the agency or power. Where one deals with an attorney having his authority in writing, he is informed of the objects and limitations of the power, and good faith forbids his co-operation in any act which on its face applies the power to purposes *in no wise connected with the interests of the principal, and perverts it to objects hostile to those interests: and the law justly denies validity to such acts. In particular agencies, this operates the annulment of the act, though the agent may have had the possession and ostensible ownership of the subject of the contract, and the party dealing with him may not have known that he was not the actual owner. Thus a factor has the possession of the property of his principal, with full power'to sell for cash or on credit, and on a credit sale, to transfer or collect the debts. All such acts may be for the benefit of his principal; and the subsequent misuse of the funds that may thus come to his hands in no wise invalidates the sale, transfer or collection. But he cannot pledge the goods, or the note taken on the sale of them, for his own debt, so as to give the pledgee a title paramount to that of his principal. Comyn on Contr. S38, 9. And this, though the pledgee did not know that the party with whom he dealt was not in reality what he ostensibly was, the owner of the goods. Martini v. Coles, 1 Mau. & Selw. 140. The power of the factor is assimilated to that of an attorney, for the purpose of imposing this limitation on his general and large authority, Kinder v. Shaw, 2 Mass. Rep. 398, and the party dealing with him is subject to the consequence of this limitation, though he knows not that in the particular transaction his title is that of a factor. When the act is done avowedly under a written authority, the party is with more reason bound to shew that it is done in conformity with the objects, and within the expressed or fairly inferred limits, of such authority. Broad as are the terms of the letter of attorney in question, the power given has relation to the business and concerns of the principal, and an act which is not only alien but ostensibly hostile to those interests is not within its scope. Such is the act in question ; and if the facts be as the plaintiff in error offered evidence *to prove them, there is a misstatement of the consideration in the bill of sale, which evinces a consciousness in the parties of a want of authority for the real transaction, and an improper attempt to disguise it, by giving it the semblance of an act concerning the business of the principal. I think, therefore, that the court below erred in its opinion, and that the judgment ought to be reversed with costs, the verdict set aside, and a new trial of the issue had, on which the court, if desired, should give the instruction that the plaintiff in error asked for orí the former trial, and withhold that which was given on that trial.

The other judges concurring, judgment entered accordingly.