Himes v. Herr , 1896 Pa. Super. LEXIS 115 ( 1896 )

Opinion by

Orlady, J.,

(after reciting the facts as above) :

From the inception of the loan until April 1, 1892, the interest was annually paid by Herr to Kennedy. The court below, in the opinion filed, imposed the whole burden of inquiry upon the borrower. “ Kennedy did not tell him whose money it was and he did not know until he saw the bond. After he saw the bond he knew the money came from Mrs. Himes. He does not say he ever made inquiry where Mrs. Himes resided or whether he should pay the money to her. He never asked Kennedy or inquired whether he had authority to receive the money and enter satisfaction on the record or not. He paid the money and took his chance. His negligence was his undoing.”

This was too severe a test of his duty and liability. Conversely it could be said Mrs. Himes knew when the loan was made in 1886 that Herr was to be her debtor and sent the money to Kennedy for delivery to Herr; knew the judgment yas entered because she had a certificate ; approved of the payment of interest annually to Kennedy and accepted it from him; knew or should have known of the revival of the judgment by Kennedy; and when informed of the satisfaction of the judgment by Kennedy in December, 1893, and his receipt of this money, recognized the indebtedness as being that of her grandnephew, who for seven years had looked after this and other loans for her, and not Aaron Herr, whom she had never seen, by making a claim for this, with other money, and accepting in satisfaction of this very claim, a deed (dated January 2, 1894, with a consideration mentioned at $2,603.25 “made up of a mortgage of $2,000 against Hofmaster and the judgment of Aaron Herr for $500 and other items) ” from him, with a full understanding of her act, when represented by competent counsel, to satisfy these claims, she accepted his interest in a farm in Salisbury township, and a transfer of his interest in the fee in the Lechler estate.

The authorities cited by appellee do not apply to this case. It is different in its facts from any presented. During the whole course of the business, Sarah Himes authorized such a course of business to be established and continued, as to’warrant a man of ordinary caution in believing that Kennedy was her trusted representative, in the care of this investment; and when his default was discovered, at once ratified his act of receiving the money for her, by accepting from him a deed in satisfaction of the claim.

The extent of an agent’s powers depends upon the authority under which he acts. Tins may be shown by his written instructions or his course of dealing. It is true the public are not always bound by the private instructions of the agent; and may hold the principal responsible, though the particular acts are in excess of his private instructions. It applies to cases where the agent has been held out to the world as such by the principal, allowed to exercise enlarged powers from time to time, and his acts therein have been ratified by his principal: American Life Ins. Co. v. Shultz, 82 Pa. 46; Schrack v. McKnight, 84 Pa. 29; Hubbard v. Tenbrook, 28 W. N. C. 351.

The records of the county show that from 1879 to 1892 G. C. Kennedy, acting for Sarah Himes, entered, satisfied, released, transferred, revived and otherwise cared for eight judgments and mortgages aggregating $16,600, some by virtue of a special power of attorney, and others as attorney at law. None of these was repudiated and her ratification of his act is to be presumed from the absence of dissent, which is equivalent to precedent authority.

Under the special facts in this case, the court erred in making the rule absolute, and the decree is reversed, costs to be paid by the appellee.