Ish v. Crane , 13 Ohio St. (N.S.) 574 ( 1862 )

Gholson, J.,

dissenting. — Ordinarily I am content with a silent dissent; but believing that, in the present instance, there is a departure from the correct rule of decision, and a sacrifice of an old and established principle of the common law, to save from its operation a hard case, I feel it my duty to protest.

The general rule of the common law is admitted — that on the death of the principal ti\e power of the agent ceases. But it is claimed that there is an exception, if the agent act before the death of the principal be known, and that this exception applies to such a case as the present.

Where there is a general rule or principle of law, the existence of which is admitted, it is incumbent on him who alleges-an exception, to show precedent or authority for it, and if he cannot,he has no right to engraft his exception. Until he shows authority for the exception, he has no right to ask for authorities against it; and if it be a case where, had the exception existed, there would have been numerous instances-of its application, the absence of authority is conclusive. Such I understand to be the correct rule of decision; and this rule, in my judgment, has been violated.

The question has been treated as if the learned judges and commentators who have stated the rule as subject to no such exception, were bound to show authority, not only for the rule, but for the nonexistence of the exception. Thus, when Kent says — after stating the rule of the civil law, “ that the acts of an agent done Iona fide after the death of the principal, and before notice of his death, are valid and binding on his representatives,” — “ that this equitable principle does not prevail in the English law; and the death of the principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest” — the authorities he cites are regarded as unsatisfactory, because, though-fully sustaining the affirmative proposition, they do not, in-•terms, negative, the engrafting into the common law of the exception of the civil law'; a thing which, when speaking judicially, he said, had never been done. (7 Gr. 0. R. 285.)

The fallacy in the reasoning upon which the former decision in this case proceeded, and I do not understand that any different ground is now taken, was in not distinguishing the power, of an agent to do the act in his own name, from the manner of doing it in the name of his principal. In this case the act to be done was the making a contract for the sale of real estate. There may be two inquiries perfectly distinct: 1. Could the agent do such an act in his own name, and bind the principal ? 2. In what mode might the authority be executed so as to bind the principal ? Now, as to the first, it is clear that an agent appointed for such a purpose must do the act in the name of - his principal, or for and on behalf of his principal, and can not do the act in his own name, and without reference to the authority under which he is acting. As to the second, it is equally clear that the stringent rule, as to the mode of executing a power by a sealed instrument, does not apply; but the mode, though it must appear to be in the name of the principal, may be shown to be so, in case of written instruments, by a fair interpretation, and, in some cases, parol evidence in aid of the writing may be received, to show that the act was really done, and intended to be done, in the name of the principal. Now, the confounding the rules of law on these points has led to the erroneous conclusion, that as to the revocation of authority by death, a distinction exists between acts of an agent by deed and acts done in pais, whereas the distinction in view of the writer from whom it was taken, was between acts which may be done in the name of the agent and acts which must be done in the name of the principal; and there is not a word in his book which ■can give color to the idea that such an act as the one under consideration can be done in the name of the agent.

A reference to the syllabus in the case, will show that the decision proceeded on this fallacy. After stating the facts in the case, it is held : “ 1. That the death of the principal, as a general rule, is a revocation of the agency, by operation of. law. 2. That tbe transaction being matter in pais and not by deed, or necessary to be done in the na.me of the principal, and being in good faith on the part of B. & C., and within' the apparent authority of B., as so expressed by A., without knowledge of his death, the heirs and representatives of A. are estopped to deny such apparent authority of B., and the-contract is obligatory upon them.” 8 Ohio St. Rep. 520.

That the decision stands on the ground thus shown in the syllabus, is manifested still more clearly in the opinion. Thus it is said, the authorities go no further than “ to hold absolutely void the acts of the agent, after the death of his principal, and without notice, which must necessarily he done in the name of the principal.” Judge Story, it is said, is muoh more guarded and less positive as to the doctrine of the common law differing from the civil law than Chancellor Kent. Certain passages are quoted from his work on Agency —sections 495, 147, 148 and 150 — and they are spoken of in reference to this question of the revocation of the authority of an agent by death, as having made a distinction, “between acts of an agent by deed and necessarily to be done in the name of the principal, and acts done in pais, not necessarily to be done in his name.” Illustrations of the supposed distinction are given, and in conclusion it is said, referring to a case decided in Missouri, Dick v. Page & Bacon, 17 Misso. 234, “ that the rule that the act of an agent done after the death of the principal, without notice, is void, only applies to those acts which must-be done in the name of the principal, and not to those acts which the agent may do in his own name. But the case under consideration is not one-in which the acts of the agent could only be executed in the name of the principal. The agent, La Ferry, was not an agent to convey the title to the land, but only to negotiate a bargain with some one in relation to the .conveyance.” 8 Ohio St. Rep. 545.

In the case of Dick v. Page & Bacon, as well as in the former decision in this case, Story on Agency is relied on as the authority showing the distinction between acts which may be done in the name of the agent and acts which must be done in the name of the principal. A reference to that work will show whether it can be properly described as “ the distinction thus made between acts of an agent by deed, and necessarily to be done in the name of the agent, and acts in pais, and not necessarily to be done in his name.” 8 Ohio St. Rep. 535. The 18th chapter of that work treats of “ DISSOLÜTION OR DETERMINATION OE AGENCY,” and is perhaps the fullest and clearest statement of the rules of law on the subject anywhere to be found. In section 488, it is said: “ A revocation may be by operation of law, by death, either of the principal or of the agent. This is an ancient and well settled doctrine of the common law. It will make no difference, that the power is declared in express terms to be irrevocable ; for if it be not coupled with an interest, although irrevocable by the party, it is revoked by his death. The doctrine seems to be a natural deduction or presumption of the actual intention of the parties. But it has this additional reason to support it, that, as the act must, if done at all, be done in the name of the principal, it is impossible that it can be properly done, since a dead man can do no act; and we have already seen that every authority, executed for another, presupposes that the party could, at the time, by nis personal execution of it, have made the act valid.” And in section 489 he continues : “ The only admitted exception in our law, if indeed that properly constitutes an exception, is the case where the power or authority is coupled with an interest in the thing, actually vested in the agent.”

In subsequent sections reference is made to the rules of the civil law, and then follows, in section 495, the remarks which are supposed to show the distinction under consideration; and .it is important in order to understand what is meant by acts which must be done in the name of the principal, to read what follows in immediate connection : “ Regularly, indeed, where the act to be done must be done in the name of the principal, and not in that of the agent, the authority is extinguished by the death of the principal, because it has then become incapable of being so executed. And it should seem 'that this would be equally true in the Roman law, and in the jurisprudence of continental Europe, under the like circumstances. The difference, on this subject, between our law and the latter, seems to rest, not so much upon a difference of principle, as upon the difference in the modes of executing the authority. Under the Roman law, the agent ordinarily executed his authority in his own name, and thereby bound his principal,' indirectly, by his contract, ex mandato, and himself personally. An execution of the authority in the name of his principal was not generally allowed or required. In the jurisprudence of modern continental Europe, the rule of the Roman law would seem still to exist, so far, that the agent may bind the principal by the act done in his, the agent’s, own name, ex mandato, although he is also at liberty to do the act in the name of his principal, in which latter case he may escape from any personal responsibility. This is certainly the doctrine in Scotland. Where the act, nothwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid. But where the act is required to be done in the name of the principal, the same objection would seem to lie to it in the foreign law as does lie in our law. Now, our law recognizes this very distinction in its fullest force. In the case of an authority coupled with a vested interest in the thing, we have already seen that it is not extinguished by death of the principal, for the very reason that it can still be executed in the name of the agent, he having the vested legal and equitable title in the thing, which he can transfer or change by his own act, as owner. And it seems reasonable to believe, that the same doctrine would be fully recognized in our law, in all other cases of authority, where the act to be done may lawfully be done in the sole name of the agent. Thus, for example, a factor, as special owner of the goods may, and indeed usually does, sell them in his own name. So, a supercargo usually buys and sells in his own name. So, the master of a ship, in the usual course of ex ercising his authority, contracts in his own name, as dominus navis. Thus, he purchases supplies, gives bottomry bonds, makes charter-parties, and sells the ship, in cases of necessity, in his own name; and these acts are constantly treated, when within the scope of his ordinary duties and employment, as binding upon his owner.”

No other example is given, and it is said of all of them: “ These cases seem, in truth, to be disposed of by the single consideration, that they either are, in fact, cases of powers coupled with an interest or are governed by the like analogy.” In the next section it is said, the same doctrine is supposed to extend to insurance brokers; and then in section 498, it is said: “ Whether, therefore, our law be so strict and rigid in its character, as to the implied revocation, resulting from the death of the principal, in cases where the agency can be, nay, ordinarily is and should be, executed in the name of the agent, and not of the principal (as has been often supposed), is a point, which may, perhaps, be entitled to farther consideration and examination than it has been thought hitherto to require.”

It is difficult to understand, how it could be supposed, that the learned author contemplated, as coming within the description he has given, all acts in pais done by an agent, and par--tieularly such a case as the making a contract for the sale of real estate. In this part of his book, which treats of the dissolution, or determination, of agency, not one word is said as to the difference between acts which an agent does by deed, and acts done in pais or in any other manner than by a written instrument, under seal. What he does say on that subject is under a different head — The duties akd OBLIGATION OR AGENTS, IN EXEOUTING AUTHORITY (chap. 7) — which assumes that authority exists, and treats of the manner of its execution. It is under this head, that sections 147, 148, 150 and 152, cited in the former decision of this case, are found.

The idea, that this difference between the acts done by an agent controls in deciding upon the effect of a revocation by death, if entertained by Judge Story, would make inconsistent much of what he has written. Why say, it is doubted whether our law deserves reproach for not being like the civil law, at least to the full extent, usually imputed, if all acts, done in pais, or in any other manner than by a written instrument under seal, are governed by rules similar to those of the civil law? Eew cases would be left for what has been regarded as the rule of the common law, for though the authority may be conferred by deed, in most of the cases in which this is done, the acts of the agent under the authority may be in pais, or by writing not under seal. The very limited number of cases, in which a sealed instrument is required, such as the conveyance of real estate, would be left for the operation of the general rule. Why does he say, it is a point worthy of inquiry, whether “in cases, where the agency can be, nay, ordinarily is, and should be executed in the name of the agent, and of the principal,” “our law be so strict and rigid in its character, as to the implied revocation resulting from the death of the principal ?” Or why give as the only examples of such cases, the acts of factors, supercargoes and masters of ships, and say of them, that they either are, in fact, cases of powers, coupled with an interest, or governed by the like analogy, if all acts of agents, other than those by an instrument under seal, were intended to be described. Surely it can not be that Judge Story sanctions any such distinction, and the inference drawn from what he says in section 152, is no.t correct. This is shown by what follows in the same section, but was not quoted in the former decision in this case, and very clearly by subsequent sections under the same head.

Indeed, in view of the conclusive authority of. these sections, I do not understand .it to be claimed, that the agent in this case could do the act in his own name without any reference to the authority under which he was acting. But if I understand the opinion just delivered, it is conceded that it must appear that the act was done for, or on behalf of the principal, and the distinction relied on is, that it need not be done in the name of the principal. Now, when the common law authorities say, that a valid act can not be done in the name of a dead man, it would be drawing an exceedingly fine distinction to claim, that a valid act may be done for, or on behalf of, a dead man. The reason which precludes the propriety of the one, certainly extends to the other. The idea, that the reason of the rule under consideration, as expressed in all the authorities, and so clearly stated in the quotation before made from Story, that a valid act can not be done in the name of a dead man, is limited to cases of the execution of sealed instruments, and allows acts to be done for, or on behalf of, a dead man, is, so far as my research has extended, and as I think, beyond any doubt, for the first time advanced in the decisions of this case, and is unsustained by any authority.

The case of Dick v. Page & Bacon, 17 Misso. 234, in the decision of which the distinction really intended by Judge Story was applied, shows that it was not supposed to have the very extensive operation which is claimed in this case. The court there, after referring to the distinction, and citing the work on Agency, as authority, say : “ In the case under consideration, the notes left with Page & Bacon were in the possession of Nicholson. He could impart an equitable interest in them without using the name of Doughty. Page & Bacon, to maintain their defense, insist on no act of the agent in the name of the principal. Nicholson may be regarded as a factor of Doughty, with authority to pass the notes by delivery, so as to warrant Rage & Bacon in receiving the money due on them.” (17 Misso. 237.) That the distinction has no such operation is shown by the full passage from Russell on Factors and Brokers, a part of which is quoted in the former decision in this case. The whole passage is: “Again, the death of the principal will operate as a revocation of the authority of the factor or broker to do any act merely as the agent of the former, because, as has been well said, a valid act can not be done in the name of a dead man. But where the factor or broker has authority to do an act in his own name, there it would seem that the death of the principal will not ipso facto determine such authority ; and a. fortiori will this be the case, if the authority conferred on the principal be coupled with an interest; because, in this latter instance, the factor or broker would seem to act in his own behalf, so far, that is, as his interest extends, and not merely as the agent of his principal.” This author cites Story as his authority for the distinction, and certainly does not understand him as referring to a distinction between acts by deed and acts in pais. It is scarcely necessary to say, that in none of the cases which have been decided on this subject of the revocation of an agency by death, though the point involved would have been at once and readily resolved by the application of such a distinction had it been taken by counsel or mentioned by the court. If negative evidence can show that an alleged proposition is not law, such evidence appears to be conclusive in this instance.

Even in the case of Cassiday v. McKenzie, 4 Watts & Serg. 282, which is said by the learned commentators on American Leading Cases, 1 vol. 587, to be in opposition to all the authorities, no distinction between acts in deed and acts in pais, as bearing on the subject under consideration, is mentioned. The decision is placed on other grounds, and the principle of that decision does not embrace the present case. That was the case of a transaction fully consummated in ignorance of the death of the principal. The court say: “ There is no act to be done. This money has been paid by the debtor, and received by the agent, in good faith; and why should it not be good, when the authority is revoked by death, as it confessedly is, when expressly revoked by the principal in his lifetime ? Here the precise point is, whether a payment to an agent, when the parties are ignorant of his death, is a good payment.” Now, the case of an executory contract presents a different question, and it is exceedingly questionable whether, in wise policy, even legislative authority should create an exception on account of ignorance of the death of the principal in cases of executory contracts.

Certain English cases are cited as being “ in favor of the limitation or exception to the rule insisted on.” I have carefully examined those cases, and they make a very different impression on my mind. The cases of Knowles v. Luce, Moor, 112, and The King v. Bedford Level, 6 East. 356, do show that there is an exception where the agent, as said in the passage cited from Chitty on Commerce and Manufactures, is a legal agent, such as the steward of manor, acting under “ color of authority which strangers could not examine,” or, in other words, as an officer de facto. And this clearly appears from the remarks of Lord Ellenborough in The King v. Bedford Level, 6 East. 368, which were in reference to the acts of an officer, a deputy register, and he says, in conclusion of the doctrine of Manwood, C. B., in Knowles v. Luce: “-This doctrine of Manwood’s seems no more than what was the law in the case of all judicial offices, when the interest of the officers determined on the demise of the crown; for, though in consideration of law, the commissions of the judges, etc., immediately determined on such demise, yet their intermediate acts, between the demise of the crown and notice of it, were good.” Now, the very introduction of such reasoning shows that the “limitation or exception insisted on” in this case, was unknown to Lord Ellenborough. And it may be said, in conclusion, that if there are English cases which favor such a limitation or exception, they have escaped the attention of such learned commentators as Kent and Story, and of the counsel and judges who have argued and decided the recent cases in England, which very clearly recognize no such limitation or exception.

Pecs, J., also dissented.