Wilcox v. Routh

delivered the following opinion.

In this case I concur in opinion with the chief justice.

The power of attorney of Routh to Ferriday is very broad. It is true, it is to be construed with reference to the subject-matter. It does not make Ferriday an universal agent. But in regard to the subject of the power — the making — negotiation— payment — renewal of notes — doing bank business — and performing all which lawfully pertained to these matters, Routh puts Ferriday in his place. I think this power authorized the giving of notice of dishonor of notes indorsed by Ferri-day to Ferriday, and made such notice equivalent to notice to Routh in person; or if a state of case exist in which notice was unnecessary, knowledge of such state of facts on the part of Ferriday, was equivalent to such knowledge on the part of Routh.

The note in question was made by Ferriday in his own right, and was indorsed by him in the name of Routh. His power to do this is not questioned. He must have known that the note was not paid on the day of its maturity, and this knowledge must bind his principal. If a bill be drawn by one member of a firm, and accepted by the firm, notice of the non-payment of the bill need not be given to the drawer. Rhett v. Poe, 2 How. *485S. C. Rep. 457. Each member of the firm is the agent of all, and knowledge by one of the acceptors, partners, of the dishonor of the bill, affects all the partners, drawers or acceptors. This is for the reason, that each partner is the agent of all, in matters embraced by the partnership ; and the same doctrine is applicable to principal and agent.

delivered this opinion.

The plaintiff brought an action against Ferriday, as maker, and Routh as indorser, of a promissory note. As to Routh, an agreed case is made, on which the court below rendered judgment in his favor. The question is whether the notice of protest is sufficient to charge Routh as indorser. This depends upon the construction of a power of attorney from .Routh to Ferriday. The note was made by Ferriday, payable to Routh, and indorsed in his name by Ferriday, his attorney.

By this letter, Routh appointed Ferriday his agent and attorney, “ general and special,” and proceeded in the following language, to wit: “ giving and by these presents granting'unto my said attorney full power and authority, for me and in my name, or in the name and for the use and benefit of him my said attorney, or for the use and benefit of, or in the name or names of any other person or persons whatsoever, to make, indorse, draw, accept, and negotiate all promissory notes, bills of exchange, drafts, and other securities of any and every kind whatsoever. To issue letters of credit, to transact all banking business, to make all manner of renewals and indorsements of my *481name on all promissory notes, bills of exchange, drafts or other securities of any kind whatsoever, consequent or in any wise dependent upon such renewals, whether the same be payable to me, or to my said attorney, or to any other person or persons, or corporation, or company whatsoever. And generally to do all lawful acts and things whatsoever, concerning, or in any wise appertaining to the premises, as myself might or could do, if I was personally present and acting therein.” It contains a power of substitution, and concludes by declaring that it “is to be taken and understood in its fullest and most comprehensive sense and construction.”

This authority is certainly comprehensive in reference to the subject-matter embraced by it. And if it does not include power to receive notice of protest, it is the only power which it does not confer. Agencies are either general or special. A general agent, in the most comprehensive sense of the term, has unlimited power in the discharge of all kinds of business ; but a person put in the place of another to transact all business of a particular kind, is also a general agent. Paley on Agency, 163. An authority of this kind enables the agent to bind the principal by all acts within the general scope of his employment. 2 Kent, 620. A general agency allows more latitude in the discharge of the duty than a special one. The principal is bound by the acts of his agent, if he clothe him with powers calculated to induce innocent third persons to believe the agent had due authority to act in the given case. Ibid. 621, note c. In this instance, the power was so general as to induce the public to believe that it was without limit on the subject of notes, bills, and other securities. The principal held out his agent as having full authority in all matters “ concerning or in any wise appertaining ” to the making, indorsing, negotiating, renewing and discharging all notes, bills, and other instruments. The holder of a note, indorsed by Routh through his agent, who was about to have it protested, would very naturally conclude that Ferriday was the proper person to receive notice, because, by the power of attorney, he was substituted in the place of Routh in all matters concerning or appertaining to his note. Notice is a *482matter which concerns or appertains to a protested note, and as such falls within the letter of the authority.

Ferriday was authorized to make, indorse for himself or for others, negotiate, renew, and transact all banking business. He indorsed this note for his own benefit, he being the maker, and negotiated it. It was payable in bank, and constituted therefore banking business. Over such business he had express authority, and here again is a clause which would authorize a notice to him. Under the circumstances, it would seem that notice to Ferriday was better than notice to Routh. Ferriday had made the note, had indorsed it, and was empowered to attend to its payment, even if that should fall on the indorser. No one can very well contemplate an extensive negotiation of commercial paper, without also contemplating the consequences to some extent, one of which is that some of it should be protested. This may be said to be an incident; at least it is a probable result. The power to negotiate, would therefore place the negotiator, as the individual to be looked to in such a contingency.

In short, this power seems to have been given in terms so broad, as to cover every possible description of transaction in any way connected with making, indorsing, renewing, negotiating and discharging all mamier of notes, bills, drafts, and other securities. Routh seems to have been disposed to confer, authority without limit; to transfer his individuality to Ferri-day, if the expression may be allowed, and the public were authorized to regard the authority as reserving nothing.

It appears that the notice was left at Ferriday’s counting room, addressed to Routh. It seems that notices of protest, addressed to Routh, were frequently left there, and a clerk in the house knew them by their exterior. It is scarcely probable that Ferriday was less astute, and it is a fair presumption that he must have been informed of the contents of this notice. He was Routh’s agent in commercial matters, and must have known that a notice left by a notary, related to that description of business. He was bound to inform his principal, and it is quite as fair to presume that he did so, as to presume that a *483notice transmitted through the post-office has reached its destination. There surely can be no doubt, that if the notice had been addressed to Ferriday it would have been sufficient, under the peculiar circumstances.

In the case of Wilkins v. The Commercial Bank, 6 Howard, 217, notice left with an agent, acting under an implied authority, was held sufficient. The agency was presumed, because notices and other communications had been usually left with the agent, without objection. The facts are very much the same in this case. A witness states that letters and papers were frequently left at Ferriday’s counting house for Routh, which he received when he came or sent for them. A clerk in the Commercial Bank had left notices there for Routh, who never made any objection that such letters, papers and notices were left there. He transacted his business there.

It is laid down in Bailey on Bills, 274, that the authority to indorse notes, does not carry with it the power to receive notices of protest. That cannot be questioned. Such a power is special; it confines the agent to the single act. But this power does not so limit the power of the agent. It is a general authority, by which the agent is clothed with full power in making, indorsing, negotiating, renewing, and in doing whatever else might pertain to notes, bills and other securities. The authority, therefore, does not apply to this case. The conclusion is, that the notice was sufficient to charge Routh.

But I should be very willing to place my own judgment on a different ground. I do not believe, under the circumstances of this case, that any other notice was necessary than such as is justly chargeable to Routh, from Ferriday’s knowledge of nonpayment. No particular form of notice is requisite. A verbal notice is as good as a written one. Notice of protest is knowledge of protest; and the knowledge of the agent of any fact connected with the subject of the agency, is notice to the principal. It is a familiar principle, having a very general application, that the principal is chargeable with constructive notice of a fact which is known to his agent. “If,” says Paley, “an agent come to the knowledge of a fact while he is concerned for *484the principal, this operates as constructive notice to the principal himself. For upon general principles of policy it must be taken for granted, that the principal knows whatever the agent knows.” Paley on Agency, 199. Ferriday was the maker of this note ; he must, therefore, have known of its non-payment. On the principle stated, Routh was affected by that knowledge, as it was a note indorsed under the authority. The object of notice is that the indorser may protect himself. The power and duty to protect his principal, were matters fully covered by Ferriday’s authority. A constructive notice to an indorser is sufficient. Notice sent by mail is nothing more. Story on Agency, 358 - 360, sec. 307 - 8; 4 Barn. & Ald. 200.

The consequence is, that the judgment must be reversed, and judgment rendered on the agreed case for the plaintiff.

delivered the following dissenting opinion.

The facts in this case were agreed to be as follows: — The note sued upon was made by Ferriday, and indorsed by Ferri-day as the attorney in fact of Routh. The notice of nonpayment, addressed to Routh, was left at Ferriday’s counting house, in Natchez. Routh resided indifferently in the city of Natchez and near Grand Gulf, and used the post offices at both places. He sometimes called at Ferriday’s counting house for letters and papers, but more generally frequented another store in the same city. The power of attorney, by virtue of which Ferriday indorsed the name of Routh to the note sued upon, appointed Ferriday Routh’s agent and attorney in fact, general and special, granting to the attorney full power and authority for him and in his name, and in the name of his attorney for his own use and benefit, or for the use and benefit of any other persons, to make, indorse, draw, accept and negotiate all promissory notes, bills of exchange, drafts and other securities of any and every kind whatsoever, to issue letters of credit, to transact all banking business, to make all manner of renewals and indorsements of his name on all promissory notes, bills of exchange, drafts or other securities of any kind whatsoever, consequent or in any wise dependent upon such renewals, whether the same be payable to him, or to his said attorney, or to any other person or persons, or corporation or company whatsoever. And generally to do all lawful acts and things whatsoever, concerning or in anywise appertaining to the premises, as he might or could do, if he were personally present and acting therein.

The first inquiry is whether this power of attorney conferred upon Ferriday the authority to receive notices of the protest *486of notes indorsed by him as Routh’s attorney, thereby to bind Routh. I think that no such authority was conferred by the power. The acts to be performed are enumerated, which always draws the distinction between a general and special agency. 2 Kent, 620. Although the term “ general ” as well as “ special ” is employed in describing the agent in the power of attorney under examination, yet the particular purposes for which he was constituted agent being therein enumerated, the agency can only be considered as special, although it is general in reference to the particular purposes for which it is made. Anderson v. Coverly, 21 Wend. 279.

There is no language in the power expressly granting an authority to the agent to receive notices of protest upon notes made in pursuance of it. Can such an authority be legally presumed from its enumerated powers. When an act precedes or follows another as a necessary and inevitable consequence or precedent, and when from their very nature they are inseparable, the grant of one will necessarily supply the grant of the other; but while they are distinct and separate acts, although entering into the same transaction, the grant of one does not supply the grant of the other.

An attorney, by an indorsement for his principal, binds him conditionally, but by receiving for him a notice of protest of the same note he binds him absolutely. To hold that the power to indorse for a principal contained the power to receive for him a notice of protest, would be to hold, that the less power contained within it the greater. An authority to indorse a note would certainly not convey an authority to make a note, and yet such would be the effect by implying the power to receive notices from the power to indorse notes. And so as to the power to make renewals of notes. It was the duty of the agent to have taken steps to obtain a renewal, and he should, therefore, at least have tendered a fresh bill or notice. It is upon these principles that it has been held that the authority to indorse notes does not carry with it the authority to receive notices of protest. Bailey on Bills, 274; Louisiana Bank v. Ellery, 3 Cond. La. R. 249.

*487Receiving notices of protest can hardly be considered as a part of one’s banking business, for it would seem to be a more legitimate banking business to pay a note than to suffer a protest. It is not the business of a bank to give notices of protest. 7 How. 648.

The broad language of the power of attorney cannot be construed to confer the authority to receive notices of protest. General words in such instruments are not to be construed at large, but as giving general powers for carrying into effect the special purposes for which they are given. Story on Agency, 62.

In this case, the question is not one of power under a general implied authority, but of an authority under a power of attorney. It is in the active sense to do and perform certain things. The reception of notice of protest is something to be suffered and not to be done.

The notice of protest was left at Ferriday’s counting-house, addressed to Routh. A clerk in the counting-house testified that what he thought were notices of protest for said Routh were left there. This possibly might have been, and still Ferriday himself might not have been so well acquainted with the notices as to have known them from their exterior, and, surely, although the nature of them, as notices of protest, might have been known as well to Ferriday as the clerk, it does not follow that from the exterior they knew that this was a notice of protest of the note in question. Besides, the evidence shows that Ferri-day’s counting-house was not the place where legal notice should have been given to Routh.

But admitting that Routh’s power to Ferriday was wide enough to authorize him to receive such notice. Did he receive the notice as agent 1 He was the maker of the note and the note was not paid at maturity. The rule is that notice to an agent is constructive notice to the principal, but it is only so when it arises from, or is at the time connected with, the subject-matter of his agency, and it must come to the agent while he is concerned for the principal. Story on Agency, 131, sec. 140. The reason given for the rule is that public policy *488presumes that the agent has communicated the facts to the principal. The non-payment of the note by Ferriday, the maker, was no part of his agency for Routh, and yet this was all the notice he had received of the protest. Indeed, it does not follow that because a note is not paid, that it is protested, or that notice is given at all. Ferriday knew that the note was not paid, but he obtained that knowledge in the course of his own business and not as Routh's agent. He was concerned for himself when that knowledge came to him and not for Routh, for he made the note in his own name and not as attorney. It is not denied that notice to a known general agent is equivalent to notice to the principal, but it is insisted that to render such a notice binding on the principal, the agent must have a special power for the purpose, or be a general agent, which brings us back to the consideration of the power of attorney.

For the above reasons, I feel disinclined to concur in the views of the majority of the court in this case.