Brantley v. Southern Life Insurance , 53 Ala. 554 ( 1875 )

BRICKELL. C. J.

The statute requires an objection to the admissibility of an entire deposition in evidence to be made before, and not after, entering on the tidal. R. C. § 2728. The objection to the deposition of May was of this character, and came too late when made on the trial. If the objection had been more specific, and directed attention to the insufficiency or defectiveness of the answers, independent of the statute, the deposition should not have been suppressed on the trial. Spence v. Mitchell, 9 Ala. 744: Wall v. Williams, 11 Ala. 826.

All contracts must be read in the light of surrounding circumstances. The occasion which gave rise to them, the relative position of the parties, and their obvious design as to the objects to be accomplished, must be looked at, in order to arrive at their true meaning, and to enable the court to carry out the intention of the parties. Pollard v. Maddox, 28 Ala. 325. The letter of attorney, introduced as evidence of Berry’s authority to make the note on which the suit is founded, in the name of appellant, is very broad and general in its terms. Standing without explanation of the nature and character of the usual and general business of appellant, and of the circumstances under which the letter was executed, it would be impossible to limit the authority of the agent, or to give it any definite application. There is scarcely a conceivable transaction, lying within the scope of lawful delegation of authority, into which the agent could not enter, and bind the principal. The operative words of the grant of authority are, “to sign my name in the general transaction of my business, giving and granting unto my said attorney full power and authority to do and perform all and every act or thing whatever, requisite and necessary to be done in the general transaction of my business,” &c. Powers of attorney are, ordinarily, subjected to a strict construction; or, rather, the authority given is not extended beyond the meaning of the terms in which it is expressed. A distinction is carefully observed, between such powers, and other powers created by deed or will, for the accomplishment of particular purposes. The purpose to be accomplished is more regarded in the latter, than in the former class of powers, and a more liberal interpretation of the words creating the powers is allowed. Story on Agency, § 67 (n. 2). In a power of attorney, words, however general, must be construed and limited in subordination to the subject matter. Thus, a general power to draw or indorse promissory notes will not authorize the drawing or indorsing of promissory notes for the mere accommodation of third persons. The authority-must be confined and limited to the drawing and indorsing of promissory notes, in matters of business in which the principal has a direct and immediate interest. Wallace v. Br. Bank Mobile, 1 Ala. 571. A physician, being about to remove from the State, left his books and accounts for professional services with a friend for settlement, giving him general authority to transact all his business in this State. The agent had not authority to assign the accounts, for the indemnity of a surety of the principal. Wood v. McCain, 7 Ala. 800. In Scarborough v. Reynolds, 12 Ala. 252, a general authority to transact business was limited to the management and control of a plantation, and declared not to authorize the adjustment of other concerns of the principal.

The circuit court properly received evidence that the principal, at the execution of the power, had no other occupation or pursuit than that of a farmer, cultivating and renting his lands, and that it was executed in view of a contemplated temporary absence from the State. This evidence was proper, to enable the court to determine the scope of the agency, and to ascertain whether the act in question was within the power conferred. The general expressions of the power must be restrained to the principal business of the party; for it is this which is presumed to have been, and doubtless was, within his contemplation, and which he was willing to submit to the agent. A merchant, about going abroad temporarily, delegated to an agent full and entire authority to sell any of his personal property, or to buy any property for him, or on his account, or to make any contracts, and also to do any acts whatsoever, which he could, if personally present; this general language would be construed to apply only to buying or selling connected with his ordinary business as a merchant. Story on Agency, § 21. So, this power must be restrained and limited to the ordinary, general business of the principal in the cultivation and renting of his lands, and the duties and transactions it involved. It cannot fairly and properly be extended to other concerns of the principal, which cannot be presumed to have been within his contemplation, and may have required an agent of another character and qualifications to transact.

When the power was executed, the principal was surety of West and Burns, agents of appellees, on a penal bond, with condition for their faithful performance of the agency. If a breach of the bond had then occurred, and any liability rested on the principal, he was not informed of it; and of course, an adjustment of such breach, and a change of the character and form of his liability, with an extension of the time of payment to his principals, was not within his contemplation. These matters were distinct and separate from his general and ordinary business, to which his attention was directed, and in reference to which he was delegating authority. The power did not authorize the agent to adjust them, and to make the note on which the suit is founded. The circuit court erred in charging otherwise. Whether the facts disclose a recognition, and acquiescence in the act of the agent, imparting to it validity, is not a question presented for our consideration.

The jugdment is reversed, and the cause remanded.