Bank of South Carolina v. Herbert , 15 S.C.L. 89 ( 1827 )

Cuma, per

Johnson, J.

The power of attorney to Green did not authorise him to draw and indorse an original note in the names of the parties, but to draw and indorse renewals of.a note which had been discounted at the bank. They are not bound by the acts of their attorney further than as he acted within the power granted. It was, therefore, incumbent on the plaintiff to have shown that the note sued on was a renewal of some original note drawn by them. The plaintiffs might have been misled by the opinion of the court, that this evidence was not necessary, and for that reason the court will order a new trial, instead of granting the motion for a non-suit, when the facts may be proved, if they exist.

The other ground presents the question whether the power granted to Green by the defendant to renew notes payable “ at sixty or ninety days’’ included the power to endorse a note at eighty eight days?

In the construction of powers as well as all other instruments the object and intention of the pai'ties to be collected from the terms used, taken in connexion with the subject to which they relate, must always prevail; and if we look to the only object which the parties to this power could have had in view in imposing this limitation on the powers of their agent, it is scarcely possible to misconceive their intention.

The limitation to sixty days, as the shortest period, could have had for its object nothing else than to protect the drawer from a sudden and unexpected demand at the caprice of his attorney. And so the limitation of ninety days could have been intended only to guard the indorsers against the consequences of an extended credit and the possible insolvency of the drawer. Any day between these periods affords a sufficient security against all the dangers intended to be guarded against, and is therefore within the intention and meaning of the parties, and the authority to Green authorised his drawing the note in question. The motion cannot therefore prevail on this ground, but a new trial is ordered on the first.

New trial granted.