Cedar Rapids & St. Paul Railroad v. Stewart , 25 Iowa 115 ( 1868 )

Beck, J.

i. Principal contract: power. I. The first point made by the appellant is, that the contract with the railroad company was not made by all the agents named in the obligation signed by defendant, and he is not, therefore, bound by their act. An authority conferred upon two or more persons to do an act as agents of another can be performed by them only jointly when no intent appears that it may be otherwise executed. But if it be shown by the instrument conferring the power that it is the intention for a part of the agents to execute it, such execution is sufficient. Story’s Agency, § 42; Donohue v. Granby, 2 Pick. 345; Kupfer v. Augusta, 12 Mass. 185.

We are of opinion that the instrument, in this case conferring the authority, gives the power of its execution to a majority of the persons named therein as agents. In express words, it provides that the terms of the contract they are authorized to make may be fixed and agreed upon by a majority. This in truth is the gist — the substance of their power; the execution of the contract is but a formal matter, requiring no exercise of discretion or qualities of ability or integrity which men always consider in appointing others to act for them./

It is quite unreasonable to suppose that the defendant and others executing the instrument did intend, that, in the vital part of the business which they intrusted to their agents, where judgment, discretion and integrity would avail much for their interest, they were content to be bound by a majority of their agents, but in a mere formal matter, the carrying out of the will of a majority, they intended all to unite.

a. • — ■ delivery: railroad.' II. It is urged that no assignment of the contract of the defendant and others is shown by the petition, None was necessary. By the express terms J v x of the instrument, the agents were authorized to transfer it by delivery, and it was thus to become the property of the party receiving it.

3. __ di8power?ary III. It is contended that the contract made with the railroad company is not such a contract as the defendant and his associates authorized their agents to make; that it binds them to furnish depot grounds and right of way free of charge as a condition precedent to the covenants of plaintiff, and therein the agents exceeded their- authority, thus avoiding the contract.

We are not prepared to say, under the large authority conferred on the agents by the defendant and his associates, expressed in the following words, viz., “ to make and enter into a contract with said - railroad company, in their discretion and upon such terms as they or a majority of them may deem- most for our interest,” etc., that the agents- could not rightfully bind their principals in covenants to furnish depot grounds, right of way, etc., the performance of which should be conditions precedent to the contract of plaintiff;. certainly all other covenants and terms of the contract with plaintiff are clearly within the broad and general words conferring authority upon the 'agents.

4. stamps: road sub-'1’ scnptions. IY. It is lastly insisted that the instrument sued on was not properly stamped, inasmuch as the act of stampiag was done by the agents of the defendant and his associates. By the terms of the instrument it became the property of the plaintiff upon delivery, and until that act, it was not in fact a completed obligation. The agents were intrusted with the duty of its delivery. The obligors therein will be presumed to have intended that, when delivered, it should be a binding and valid instrument.

To give it that character, it was necessary that it should be stamped. It will be presumed, therefore, that the power to affix and cancel the stamps was conferred upon the agents of the defendant and his associates, in order that the instrument should be perfect and valid.

We find no error in the ruling of the court below, and the judgment will, therefore, be

' Affirmed.