Commonwealth v. Hawkins , 1885 Ky. LEXIS 63 ( 1885 )

■JUDGE HOLT

delivered the opinion oe the court.

The sheriff of Franklin county on December 11, 1880, executed his bond for the collection of the State revenue for 1881, with John W. Jackson, R. D. Armstrong, and others as his sureties. At the June term, 1881, of the Franklin County Court the two sureties, above-named made a motion, upon due notice, requiring the sheriff to give a new bond, and to indemnify them in their said suretyship. An order was entered requiring• the sheriff “to execute a new bond, conditioned for the collection of the State revenue of said county for the year 1881, and for indemnity to said R. D. Armstrong and John W. Jackson for any loss, cost or damage legally incurred by them by reason of their suretyship in the bond executed by said E. O. Hawkins, as sheriff aforesaid.”

The order further recites, that “said E. O. Hawkins,, together with Hiram Berry (and others, naming them), his sureties, entered into and acknowledged a covenant to the Commonwealth of Kentucky, conditioned for the collection by said Hawkins, as sheriff of Franklin county, of the State revenue of said county for the year 1881, and for indemnity to R. D. Armstrong and J. W. Jackson for any loss, cost or damage legally incurred by them by reason of their suretyship in the bond executed by said Hawkins as sheriff of said county with them and others as sureties, dated December 11, 1880.”

The bond approved by the order stipulates, “that the said E. 0. Hawkins, as sheriff, shall well and truly collect, account for, and pay over to persons entitled to receive the same according to law, the revenue and public dues of the county of Franklin for the year 1881, and that he shall, when called upon by the Auditor, settle his accounts and pay over the amount, if any, of public money in Ms hands belonging to the Commonwealth; and that the said E. O. Hawkins shall' in all things well and truly demean himself and perform the duties of collector of the State revenue of said county; and we further covenant to indemnify J. W. Jackson and R. I). Armstrong against any loss or damage legally incurred by them by reason of their suretyship in the bond executed by E. 0. Hawkins as sheriff of Franklin county, with them and others as sureties, dated December 11, 1880.”

It was signed as to the appellee Berry, “Hiram Berry by Ira Julian, attorney in fact,” by virtue of a power of attorney, which reads thus:

“I, Hiram Berry, of Franklin county, Kentucky, do hereby authorize and empower Ira Julian to sign and deliver for me and in my name as surety for E. O. Hawkins on three bonds—

“1st. A bond for the collection and payment of the State revenue of Franklin county for the year 1881, and also to indemnify any liability of said Hawkins on his bond executed the 11th December, 1880, against any loss or damage by reason of the suretyship thereon.

“2d. A bond for the faithful discharge of the duties of said Hawkins, as sheriff on the aforesaid bond, and also to .indemnify any of his sureties on his official bond executed December 11, 1880, against any loss or damage by reason of their suretyship thereon.

“3d. A bond for the collection of the county levy for Franklin county, and payment of all sums collected by said Hawkins as sheriff, to the proper authorities, and to indemnify any surety on his previous bond, executed the 11th December, 1880, against any loss or damage by reason of the said suretyship. ■

“This June 1, 1881.

“HIRAM BERRY.”

To this motion by the State,' upon the bond exe■cuted June 6, 1881, for a deficit of $5,051.87 of the State revenue, the appellee Berry presented a plea •of non est factum, based upon the ground that the power of attorney from him did not authorize the execution of the bond, or, in other words, that the bond contained a covenant of indemnity to the sureties, Jackson and Armstrong, which was not authorized by the power of attorney; and that, therefore, he was in no way liable upon the bond.

The sole question is the sufficiency of the power -of attorney. The learned special judge who tried the •cause below held, upon demurrer, that the answer was sufficient, and dismissed the motion as to Berry; and our regard for his opinion has caused us to hesitate as to the conclusion which we have reached. But to our minds it is the only one consistent with both reason and law, and it must, therefore, be adopted.

The language in the first clause of the power of •attorney, and which relates to the execution of the State revenue bond, is.: “And also to indemnify any ■liability of said Hawkins on his bond.”

This, if interpreted literally, means nothing. Neither Hawkins, owing to his being the principal, nor "“any liability” could be indemnified.

The intention of the parties and not the letter must control in the construction of the instrument. The purpose and design of it must be considered, .and it must be supposed that the parties intended to make it effectual for some purpose. If the object • can be ascertained from the instrument, then it must not be so construed as to make it ineffectual, because that would frustate the intention of the maker. It was well said in the case of Vanada’s Heirs v. Hopkins’ Adm’r, &c., 1 J. J. Marshall, 287:

“But all powers conferred must be construed with :a view to the design and object of them, and the means most usual and proper for carrying their design and object into effect, having respect to the language which the maker of the power employs to -convey his meaning and intent.”

It is true that the language of a power of attorney can not be enlarged by construction so as to make it mean what the maker did not intend; but when the power in question is read in the light of the above rule, and all three of its clauses are considered, we think there is no doubt but what the maker intended by it to authorize the execution of not only a hew bond, but one containing a clause of indemnity to any of the sureties in the old one. It at least has this appearance, and a principal is re.sponsible for the appearance of the agent’s powers. If he has clothed him with apparent power, he is, .and it is right that he should be, bound by his act. It was not necessary, perhaps, to decide this question, because another, to our mind, is decisive of the case, even if we were in error in the above conclusion.

The' first section of chapter 104, General Statutes, provides, that a motion may be made by a surety upon an officer’s bond for a new bond, and to obtain indemnity as to the existing one or either; and., the sixth section of the same chapter provides:

“If a new bond is given, it shall operate as a dis-^charge of all the sureties making the motion from all liability for the acts of the principal thereafter' done; and if the object be so specified, the bond, shall contain a stipulation or covenant to indemnify the said sureties' against any loss, cost or damage legally incurred by reason of said suretyship.”

The question in this case is between the State and the appellee Berry; and not between him and the sureties upon the former bond. It is a motion upon the. new bond for the unpaid revenue; and the power1 of attorney in express words authorized the execution of a new bond; and even if it had not authorized (as we think it did) the covenant of indemnity to the sureties in the old bond, yet should the covenant of the new bond to the State therefore be inoperative?

We think not. It is true that Julian was a special agent for a particular purpose; and it is well settled, that one dealing with such an agent is required to-know his power; and if it is exceeded, or the act varies substantially from his authority, then his action, is ultra vires and not binding upon his principal.

The cases which lay down this doctrine in general terms are quite numerous; but we apprehend that it is not meant by this, that if the agent is authorized by the same instrument to do two separate things, affecting different persons, and in the one case he exceeds -Ms. authority, but does not in the other, that therefore his action is void in toto as to his principal, even if his action as to both is evidenced by the same instrument.

The reason a principal is not bound by the act of a 'particular agent, where he has exceeded his power, Is that he should not be held liable without Ms consent. If A authorizes B to buy a piece of land at fifty dollars per acre, and he gives sixty for it; or if he authorizes him to buy a particular tract of land •and he purchases another, or if he has authorized him to give a note payable in a year, and he makes it payable in sixty days ; then in these cases A would not be liable; but if he authorizes him to buy one "hundred acres of land of C, and a like quantity of D, 'a purchase of the latter of a greater quantity would surely not release A from a purchase of C of the ■quantity which A had authorized.

Lord Coke said: “Where a man doeth that which he is authorized to do and more, there it is good for 'that which is warranted, and void for the rest.” (Co. Lit., 258a.)

Story says: “Where there is a complete execution ■ of the authority, and something ex abundanti is added which is improper, there the execution is good, and the excess only void.” (Story on Agency, 201.)

As early as the case of Alexander v. Alexander, 2 Yesey, 640, decided in 1755, it was held that where .a power was exceeded, but the excess was clearly •distinguishable from that which fell within it, the ^execution of the latter was binding on the principal.

The same doctrine is to be found in the cases of Hammond v. Michigan State Bank, Walker’s Ch. Rep., 214; Drumright v. Philpot, 16 Ga., 424, and Vanada’s Heirs v. Hopkins’ Adm’r, &c., supra. In the case now presented there are two separate covenants in the bond — one to the State and one to the old sureties — and there is no trouble in separating-what the attorney had the unquestioned right to do under the power from what as is claimed he had no-right to do.

We conclude that the correct rule is, that if the line- ■ can be drawn between the good execution of the power and the excess, and they are not so interwoven as to be-inseparable, then the former is binding upon the -principal.

Even if the attorney in this instance had no power to execute the bond as to the covenant of indemnity, yet the line between it and the covenant to the State-is so marked and so easily drawn that the appellee Berry is responsible upon the latter.

Judgment reversed, with directions to sustain the demurrer to the answer, and for further proceedings, consistent with this opinion