Wilkins v. Commercial Bank

Mr. Chief Justice Sharkey

stated the case, and delivered the opinion of the court.

It is not pretended in the argument that the notice was left with Ernest in consequence of his authority under the power of attorney, but under a general implied authority to act as Col. Wilkins’s agent. The authority of Ernest had, by the very terms of the power, expired by Col. Wilkins’s return to the state, and the plaintiffs below had, on this ground, refused to pay a check drawn by him. Of course they were aware of the extent of his power; and, with a knowledge that it had expired, they could not now, with any propriety, claim to have acted under it. Col. Wilkins had returned to the state before the note sued on was protested, and thus the written authority had expired before the service of the notice. The case must then turn on the implied authority of Ernest, ast he agent of Wilkins.

There is a vagueness in the evidence in this case which renders it difficult to determine it by adjudged cases. We are not informed by the record whether Col. Wilkins lived in town or country, or whether he had a place of business in the city. The whole question, too, comes up after a jury has passed upon it without any charge as to the law. It must be admitted that notices left with an agent appointed for that purpose, will operate to charge the principal; and agents may also legally act under an implied power. The question of sufficiency of notice is said to be a mixed question of law and of fact; the facts being found, it is with the law to pronounce on the sufficiency of the notice. It seems that Ernest was in the habit of receiving all communications addressed to Col. Wilkins, who was in the habit of calling at his office or sending for them. Ernest even occasionally took the liberty of opening letters; and he says that his authority to receive them never had been questioned. He says, too, that he had frequently received notices of this description for Col. Wilkins, amongst other letters. It seems, then, that there was an acquiescence in his conduct; and he moreover states that he was in the constant habit of delivering whatever letters he received for Wilkins. So far as a tacit agency could exist, it was certainly and fully shown in this case. The witness, it is true, says, he had no express authority for this purpose; but a general implied authority may be as extensive and binding on the principal as if it had been written. Presumed or implied authority is not confined to an agency of any particular description, nor to any particular subject; but it is a general principle of the law, applicable in all such business as is commonly transacted through an agent. It arises from previous employment in similar cases, and from the subsequent assent or acquiescence of the principal, and slight circumstances may often be regarded as evidence of such assent. Paley on Agency, 143. These agencies, like a power conferred in writing, are to be construed and limited by the nature of the business in which the agent has been employed. Thus it seems that Ernest’s agency for the receipt of letters and notices had never been questioned, and for this purpose his agency is to be implied, if it existed at all. This seems to have been the subject of his agency, and, having been trusted for this purpose, his acts are to be regarded as binding, for it may be presumed in such cases that the proper information has been imparted to the principal. Story on Agency, §140.

The sufficiency of the notice in this case is peculiarly a question of law and of fact. A notice left with an agent appointed for that purpose, or one who has an implied authority, is sufficient; but whether Ernest was such an agent, Avas a question of fact for the jury. This question of agency must have been considered by the jury, otherwise there Avas no foundation for their verdict. The evidence is strong to establish the fact. Ernest had received a general power of attorney in Avriting. He had been in the habit of receiving all communications addressed to Col. Wilkins, and handing them over, notices of protest as well as letters and papers. Col. Wilkins had never disputed his authority, but always acquiesced in his acts. He even on some occasions opened notices, and was constantly in the habit of delivering such as were left at his office addressed to Col. Wilkins. There is, therefore, every probability that this notice was delivered. It was proper for the jury to judge of the weight of this testimony, and, although we may entertain doubts as to it§ sufficiency, we cannot, for this reason merely, interfere with the verdict.

The case of the Bank of the United States v. Corcoran, 2 Pet. 131, is in some respects like the present. The analogy, however, fails in this: Corcoran had, some time before the protest, taken charge of the post office, which afterwards became his known place of business, and after that time the implied agency of his son had ceased. The .son was not afterwards in the habit of receiving communications addressed to his father, but all such were left at the post office. Ernest continued to receive and forward all communications, and we are not informed whether Col. Wilkins resided in, or had a place of business in the city; and as we consider ourselves concluded on the question of agency, by the verdict of the jury, found on evidence conducing strongly to establish that fact, the judgment must be affirmed.