Reid v. Bank of New York National Banking Ass'n , 47 How. Pr. 358 ( 1874 )

Larremore, J.

The answer sets up a power of attorney authorizing Austrup {inter alia) to do and perform all necessary acts in and about the management of the business of Welsh'as an importer of wines and liquors, with full power and authority in the premises.

This is followed by the averment that Welsh left Austrup in full and complete charge and control of his isaid business, with directions to continue and carry on the same iii the absence of Welsh.

If this fact be established by proof, it clearly shows an intention to confer something more than a mere naked power upon the attorney. The latter was thus charged with a responsibility which, from the very nature of the case, coupled the power confided to him with an interest in the control and management of said business. He could make and thus be compelled to meet business engagements and liabilities. For this purpose the absolute control and disposition of the moneys of his principal at all times during his absence was a necessity.„ The whole transaction shows upon its face an intention to modify the rigor of the rule of law here sought to be applied.

The moneys accruing from said business, after the death of Welsh, and before Austrup had notice thereof, were in the nature of trust funds in his hands, and were properly applied by him to the purposes indicated in the power of his appointment.

There is no imputation of fraud or mismanagement on his part, and he (and those dealing with him) should be protected for acts done in good faith and without knowledge of the revocation of the authority under which he acted.

For these reasons the demurrer (being general to the whole-answer) should be overruled.