Baker v. Freeman , 35 Me. 485 ( 1853 )

Appleton, J.

— This is an action of covenant broken, in which the plaintiff seeks to recover whatever may be due him as party to an assignment under seal, made to the defendants by one Rowse, of whom he was a creditor. To entitle him to recover, he must show that he became legally a party thereto. He did not sign the indenture himself, but his name was affixed by Joseph Adams, who purported to act as his attorney. As the contract declared on was a sealed instrument, and as the plaintiff’s rights depend on his having become a party to the same, it is obvious that unless Mr. Adams had authority under seal, to bind his principal, his signature would be ineffectual for that purpose. The only testimony on this subject is from Mr. Adams, who says he had authority from Mr. Baker to execute the assignment, and thinks it was either verbal or written, and that it was not under seal, because he could find no power tinder seal, and has no recollection of having had such a power from him. By his testimony it is left uncertain • whether the authority was verbal or written, while the idea that it was under seal is distinctly negatived. As the attorney was not authorized to bind his principal, the latter is to be regarded as a stranger to the assignment and not entitled to any benefits arising under it. Plaintiff nonsuit.

Shepley, C. J., and Tenney, Wells and Howard, J. J., concurred.