Bank of North America v. Embury

By the Court,

The defendants allege that the judge erred in admitting paroi evidence of authority to Brown to make the notes in question. There can be no doubt that paroi authority for such a purpose would be sufficient. The cases cited by the defendants’ counsel, of Nixon and Bartlett v. Palmer, (4 Seld. 398,) and Dows v. Perrin et al., (16 N. Y. Rep. 330,) were cases of paroi authority, and no objection was made on that ground. It is not in fact urged by the defendants’ counsel that a verbal authority would not be valid, but he alleges that the notes on their face indicate that Brown was acting under a written power of attorney, and it should have been produced. ■ There is nothing on the notes which warrants such a conclusion. They are executed in the usual form by Brown as attorney, and in no way is it stated or indicated that such.an authority is in writing. The evidence shows both written and verbal authority to the attorney; and the proof of a search for the written power and inability to find it, warranted the introduction of paroi proof of its contents.

The case of the North River Bank v. Aymar, (3 Mill, 262,) relied on by the counsel, holds no contrary doctrine. In that case it appeared that the plaintiffs had the written power in their possession, and the case held that signing the note as attorney necessarily gave notice to the party taking it of the existence of authority, either written or verbal, and that the party taking it was chargeable with the duty of *326ascertaining the extent of the agent’s power before he could charge the principal, on paper so signed. It is not unfrequently the case that authority to sign notes or do other acts of agency is implied from the acts of the parties, without proof of any express authority, either verbal of written; and such acts have been held to bind the principal. That the signature as attorney required the plaintiffs to examine as to his authority is conceded, and the paroi evidence was sufficient to prove such authority, and was properly admitted.

A letter written by two of-the defendants to Brown, the attorney, was admitted in evidence under objection that the same was not written by the firm. It was signed by Em-bury, the defendant, and evidently related to the affairs of the firm. It was a piece of testimony admissible for the. purpose of showing that Embury had acceded to the agency of Brown at the date of the letter, and acknowleged previous services by him as attorney.

The power of attorney given by Annan & Hassard to Brown, which was excluded on the trial, was not proven at all, was not shown to relate to these transactions, and as the contents of it are not stated, even if it had been proven to have been executed bv the grantors, it would be out of our power to say whether it should or should not have been admitted. In the absence of any knowledge of the contents we must presume the ruling of the judge upon the trial was correct.

The finding of the judge that Brown had verbal authority to sign the notes, was upon a question of fact, for which there was evidence calling for such a finding, and with it we cannot interfere. It is not against the weight ■ of evidence, and if not clearly so, the finding must be sustained.

It is not material to inquire whether one partner can delegate authority to an attorney to act for the firm, without the assent of the other partners. For many purposes it seems to be a necessary act, and the partnership would necessarily suffer in many cases if such a power could not *327be executed. In the present case, when the resident partner was about leaving for California, it became a matter of absolute necessity that some person should be placed in charge of the business here, and it would seem to be necessarily within the power of such partner thus to protect the firm from serious injury. I do not however consider it material, for this case, to decide this point, for the evidence fully warrants the finding that Embury, afterwards, with knowledge of the acts of the attorney, acquiesced in the agency; and that more especially in matters where the proceeds of the transaction were applied to the use of the firm.

Clerke, Sutherland and Ingraham, Justices.]

The judgment appealed from should be affirmed, with costs,