Curtis v. Ingham , 2 Vt. 287 ( 1829 )

Hutchinson, J.

after stating the case, delivered the opinion of the Court. — It appears by the case that the defendant succeeded on trial,by showing a settlement with Farnham, and a discharge ífróm him. Now, it is objected that Farnham had no authority to bind the plaintiff by his settlement and discharge. The defendant showed this by proving, that the plaintiff said, while absent from his family, and in the state of JVew York, that he had given his wife a power of attorney to settle his matters with the defendant, and Use the avails; and that she said she had sold to Farnham the judgment upon which this suit is brought. The defendant objected to this testimony without the production of the power of attorney, or notice to produce it. This objection was correctly overruled. The defendant need not prove a written power of attorney, nor does he undertake it. His object was to prove that the wife of the plaintiff had a right to settle this demand and receive the pay. The plaintiff’s saying that he had communicated such authority, is sufficient to answer the defendant’s purpose. If the defendant had merely offered proof, that a power of attorney was seen by a witness, and what its Contents were, to the jury, he must produce the writing or give notice to produce it, so as to entitle himself to his secondary evidence. But here he offers no secondary evidence. He offers proof of the plaintiff’s concessions to the facts i and, if the witness adds his saying that he had given a written power of attorney, it would lay the defendant under no obligation to give notice to produce it. It might be otherwise, if any other than a written powerwould be void. But an oral appointment, when proved, is as effectual in a case like the present, as one in writing. Moreover, the testimony in this case does not sufficiently show that there was any writing. The plaintiff said he had given his wife the power of attorney; saying nothing whether in writing or not. It is true, the expression “ power of attorney” is most aptly used when a written power is intended. But the plaintiff might not so have intended it} and there might be no written power: and it would be wrong to deprive the defendant of his legal and proper testimony, merely upon a vague conjecture that there was a writing ; and even that resulting from the sayings of the plaintiff.

The other point is no less clear. The sayings of the wife, while executing this agency, even an agency accompanied with an interest, were good evidence against the plaintiff, who had thus created her his agent. The plaintiff had left the state, and left the whole controul of this business, if not of every other, with his wife, to settle and controul the avails. Her sayings come fully within the rules in 2 StarJcie, 61 — 2, and 712, as evidence against her husband. After she said what was testified she did say, about Farnham's ownership and care of this demand, every person had a right to treat with him, and make payments to him ; and doing so, they must be protected. Her sayings must not be considered merely as an acknowledgement of previously existing facts, but, also, as declaratory of the actual situation of JParnham, and the confidence that might be placed in him by the defendant.

Sheaf, for plaintiff, Wm. Mattoclcs, for defendant.

A further objection is raised, that the note given by the defendant and his surety,was no payment, until it should be itself paid. The note of the debtor is not, of course, payment of an antecedent debt. It is only so when the parties stipulate that it shall be so. But the note of the debtor with a surety, as in tbe present case, is prima facie a payment; and must, at least, suspend the original cause of action, like a case decided in JYeiv-Yor7c, until the note should prove of no avail through some mistake. It is as much a payment as a negotiable note or a contract of a higher nature. It is to be presumed that the defendant had, by a pledge or otherwise, secured his bail. Moreover, the discharge shows that it was agreed to be in full. And the naming, in the discharge^ sum, a few dollars less than the judgment in suit, would not vary the case. The principle has never been adopted in this state, that a less sum being named in a discharge prevents its operating as such. The note was a good consideration for the discharge, as mentioned by the court in their instructions to the jury. The exceptions are overruled, and the judgment of the county court is affirmed.

Judgment affirmed.