Hanford v. McNair , 9 Wend. 54 ( 1832 )

By the Court,

Sutherland, J.

It is an insuperable objection to the plaintiff’s recovery in this action, that no competent authority from the defendant to Bush is shown to execute the covenant on which this suit is founded. An agent cannot bind his principal by deed, unless he has authority by deed so to do. The only exception to the rule that the authority to execute a deed must be by deed, is where the agent or attorney affixes the seal of the principal in his presence and by his direction. Co. Lilt. 52, a. 7 T. R. 209. 5 Mass. R. 40. Comyn’s Dig. tit. Attor. C. 1, C. 5. 4 T. R. 313. 2 Caines’ Cas. in Err. 1. 9 Johns. R. 285. Liverm. on Agency, 35, 2 Kenfs Comm. 478. 7 Cowen, 453. The authority of Bush was to contract with the plaintiff for the timber in question. It does not appear ever to have been in writing. It conferred no power upon him to bind his principal by a contract under seal. The subsequent acts of the defendant under this contract, recognizing and carrying into effect, may be sufficient to make it binding upon him as a parol contract, but cannot make it his deed. If a deed executed by an agent under an express original parol authority would not be binding on the principal, , it must necessarily follow that no subsequent parol acknowledgment or acts in pais can produce such effect. This was expressly held by Gibbs, Ch. J. in Sterglity v. Eggington, 1 Holt, 141. 3 Com. L. R. 54, S. C. That debt was upon an award made pursuant to a submission under seal, executed by one partner for himself and his co-partner. The plaintiff offered to prove that the partner who did not execute the deed, gave authority to the other to execute it for him, and that he had subsequently acknowledged the agreement. The chief justice said the authority to execute must be by deed. If one partner, who does not execute, acknowledge that he gave an authority to execute for him, it must be presumed to have been a legal authority; and that must be under seal, and produced. One man cannot authorize another to execute a deed for him,, except by deed. No subsequent ac-. Imowledgment will do. T do not perceive how the circumstance that a counterpart of the agreement, executed in the same manner as the original, was delivered by Rush to McNair and received by him without objection, avoids the diffi-" culty. It is but evidence of a subsequent acknowledgment or ratification of the deed. The principle of the case of Lewis v. Payne, 8 Cowen, 71, does not apply. There both parts of the lease were originally well executed, and it was held that the subsequent fraudulent alteration of the one by one of the parties did not effect or destroy the other. They were both originals.

Whether the plaintiff can treat this as the parol contract of the defendant, and recover upon it in an action of assumpsit, I give no definitive opinion. The case of Banorgee v. Hovey and others, 5 Mass. R. 14, would seem to hold that he could not. That case, however, is in some respects essentially different from this.

Although the verdict of the jury appears to me to be against the weight of evidence on some of the points on which they must have passed, if that were the only difficulty in the case, I should not feel authorized to disturb the verdict. On the first ground, however, the verdict must be set aside, and a new trial granted.