Lippman v. First National Bank , 120 Ala. 123 ( 1897 )

HARALSON, J.

A waiver of exemptions of personal property “may be made by a separate instrument in writing, subscribed by the party making the same, or it may be included in any bond, bill of exchange, promissory note, or other written contract executed by him.” Code of 1896, § 2105. This provision requires that the instrument shall be signed by the party making it. The intention to waive should be clearly expressed.—Knox v. Wilson, 77 Ala. 309; Terrell v. Hurst, 76 Ala. 588. If it be conceded that one may, by power of attorney, authorize another to make and sign a note for him, waiving his right of exemption as to personal property,. the intention to waive the exemption should be as explicit or clearly expressed in the power for this purpose, as it is required to be, when signed by the waivor himself. The power in this case was, “I, R. Lippman, do hereby constitute and appoint Marcus Lippman, with' full power of substitution, attorney and agent for me and in my name, place and stead, to manage and transact all business appertaining to the business done under thé firm name of R. Lippman, in Anniston, Alabama.” Here the power to waive the exemption is not only not expressed, but is only inferable as arising out of the necessity for making such a waiver in borrowing money as it. might be deemed necessary by the agent, to successfully carry on the business. A waiver of exemption in a note signed by one partner in the name of the partnership, even if deemed by him to be necessary to carry on successfully the partnership business, is good only against the partner signing the note.—Terrell v. Hurst, supra; Reed Lumber Co. v. Lewis, 94 Ala. 626.

We are of the opinion, that the waiver of exemptions against Mrs. Lippman contained in the note signed in her name by her said agent, was unauthorized under said power of attorney. This was the only issue in the case. That the note was otherwise a binding obligation on her is not denied. It results that the only error in the judgment rendered below, lies in the declaration of a waiver of exemptions which is declared in it. The error will be corrected here, and the judgment modified by striking out the declaration of exemption in question ; and, as thus corrected, the judgment of the city court is affirmed.—Reed Lumber Co. v. Lewis, 94 Ala. 626.

Affirmed.