1. If one person constitutes another his "general and special
agent to do and transact all manner of business," this does not
necessarily authorize the agent to sell stocks or other property of
the principal.
2. If the agent sells public stocks under such vague and
indefinite authority, it is at least necessary for the purchaser,
when his title comes in controversy, to show that he bought in good
faith and paid a fair consideration.
Leslie Combs brought his bill in the circuit court against John
L. Hodge, administrator of Andrew Hodge, deceased, William L.
Hodge, and James Love, complaining that Love, having in his hands
certain bonds of the Republic of Texas which belonged to the
plaintiff, sold and transferred them for his own benefit, and
without authority or consent of the plaintiff, and that he, the
plaintiff, had since learned that they were in possession of and
claimed by the other defendants. The bill prays that the defendants
be restrained from receiving any money on the bonds, and that the
bonds be surrendered to the plaintiff as the true owner, and for
further relief.
The answer denies all the main facts set forth in the bill,
asserts that Love had authority to make the transfer, and that the
plaintiff has no title or just claim to the bonds.
When the cause was first heard the circuit court dismissed the
bill, but that decree was reversed by the Supreme Court on appeal
and the record remanded for a further hearing.
62 U. S. 21 How.
397. Afterwards a decree was made below that the bonds be
surrendered to the plaintiff. From this decree the present appeal
was taken by the defendants. At the last hearing, the evidence was
the same as on the first except the paper embodied in the opinion
of MR. JUSTICE GRIER, which was not produced until after the cause
had been remanded.
Page 66 U. S. 193
MR. JUSTICE GRIER.
This case was before this Court at December term, 1858, and may
be found reported in
62 U. S. 21 How.
397. It was then remanded to the circuit court with directions to
allow the parties to amend their pleadings and take further
testimony.
The important question of the case was whether Love had any
authority to transfer the Texas bonds of Combs, and whether Hodge,
who claimed them, had given value for them.
This Court, in remanding the case, there said:
"It appears that the plaintiff did not direct the sale or
transfer of the stock in question, and that they were not disposed
of on his account, and if there had been a power of attorney
containing an authority to sell, the circumstances would have
imposed upon the defendant the necessity of showing there was no
collusion with Love."
The defendants were thus required to establish two facts in
order to support his defense: first, a sufficient power of
attorney
Page 66 U. S. 194
to Love to convey the stock, and secondly payment of a
bona
fide consideration by Hodge.
Of the latter of these he has given no evidence at all, and of
the former, a paper which, as a power of attorney, may be construed
to confer almost any or no power. It is brief and comprehensive,
and is as follows:
"I, Leslie Combs, do hereby constitute and appoint James Love,
of Texas, my general and special agent to do and transact all
manner of business in which I may be interested there, hereby
ratifying and confirming the acts of my agent as fully as if done
by myself."
"Witness my hand and seal the 13th day of February, 1840."
"LESLIE COMBS [SEAL]"
It is clear from the correspondence between the parties to it
that Combs, by this agency to "transact all manner of business,"
never supposed that he had authorized his agent to sell his
property, and apply the proceeds to his own use. Nor did the agent
so construe it till it became necessary to find an excuse for his
abuse of his trust.
On the first trial of this case, the respondent did not produce
this very vague and carelessly drawn instrument as his authority
for selling the stock, but relied on a blank endorsement of the
payee upon the bonds. No prudent man would accept a title to
property executed by an attorney in fact under a power in such very
general and equivocal terms; a man may have "a general and special
agency to transact all manner of business" without necessarily
including therein a power to sell. If it had appeared that this
paper had been presented to the Treasurer of Texas as a power of
attorney to Love to transfer the stock on the books, and if a
transfer had been made on the faith of its sufficiency to Hodge,
who had paid a valuable and full consideration, he would have
presented a case which might have called for a liberal construction
of this vague and indefinite instrument. But as none of these facts
appear, we are not called upon to speculate on the possible
constructions
Page 66 U. S. 195
this paper might be constrained to yield under other
circumstances. It is sufficient to say that by the previous
decision of this Court, the defendant was permitted to amend his
pleadings in order to prove two facts, both of which were necessary
to constitute a good defense. The testimony to support one of them,
to say the best of it, is doubtful, and the other is wholly without
proof.
Decree of the circuit court affirmed.
