Lawrie v. Miller , 2 S.W.2d 561 ( 1928 )

The guiding principle in the construction of the powers conferred in a power of attorney is to be derived from the consideration of the result which the attorney in fact is appointed to accomplish. As seemingly contended by appellees, and so determined by the court, the result which the attorney in fact was appointed to accomplish was restricted to "sign checks, notes, and settle my personal accounts of whatsoever nature." This view was arrived at by construing the following words: "Buy and sell land in and for my name, create loans again any personal or real estate that I may have in my name, — By and sell cattle in and for my name," as used as explanatory phrases, intending thereby to designate and make clear the preceding subject of "legal business." In other words, as written, such general words are not a break of continuity in the preceding sentence, indicating a different subject, but contribute to the clearness of the preceding sentence. If that construction of the instrument were the only permissive one, then it might be plausibly contended that the whole purpose of the principal was to make the attorney in fact her agent as payer, and not borrower. But it is thought that the intention reasonably appearing was to confer authority upon the attorney in fact in each of the following distinct subjects, namely:

(1) "To transact any and all my legal business (sign checks, notes, and settle my personal accounts of whatsoever nature"); (2) "(to) buy and (to) sell land in and for my name, (to) create loans again any personal or real estate that I may have in my name;" (3) "(to) buy and (to) sell cattle in and for my name."

Such parts are entirely independent of each other in construction, having relation to distinct subjects. Such construction comports with and is in entire harmony with the whole purpose and intention of the instrument, namely:

"Hereby giving and granting to said attorney my full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present."

In this view, the attorney in fact was granted "my full power and authority" to "buy land in and for my name" and (in order to accomplish such result) "to do and perform any and all acts and things whatsoever requisite and necessary to be done in and about the premises." There is no express or implied limitation upon the power authorized, as specially binding the attorney in fact to buy land only for cash furnished to him by the principal. The large power given was to do "any and all acts and things" which were "requisite and necessary" in order "to buy land in and for my name." Such general authority given authorizes, if necessary to accomplish the purpose, the giving of notes and the placing of incumbrances on the land, in payment and for the purpose of securing the payment of the purchase price thereof. Of course, this authority only lies under such operative power for the unpaid purchase money, and would not authorize general promiscuous incumbrances. Therefore, as it did not appear from the allegations in the petition or the trial amendment thereof that the deed of trust was not given for the unpaid purchase money of the land incumbered, it was error to sustain the special demurrer. The appellant had the right to complain, and appeal from the demurrer to the amendment, as reaching to the foundation of the suit.

Assume, though, that the deed of trust declared upon was upon previously owned land of the principal, still the authority to make the incumbrance upon the land is not conclusively lacking in further provisions of the instrument. Operative power was given, namely, "create loans again any personal or real estate that I may have in my named." Standing alone, the phrase "create loans" would plainly mean to bring into existence or make loans, and not to borrow, in behalf of the principal. However, such words, tied to the further words, "again any personal or real estate that I may have in my name," would convey a different meaning. There may or may not have been an omission of words in the phrase, but it cannot be presumed in this record that there was an omission, since all the words, taken together, are sufficient to express in a connected manner the intention and purpose of the principal. The entire phrase is colloquial, and sufficiently expresses the meaning, to borrow money and give the property as security therefor.

It is obvious, as against the demurrer, that the word "again" should be regarded and read as intended to be used for the word "against"; otherwise, the phrase as worded would be confused, meaningless speech. We are of the opinion, though, and here say, in order to avoid any misunderstanding of the present ruling, that if, in the trial of the case on its merits, it develops, as suggested in the argument and pleaded in the answer, that words were wrongfully or were improperly erased after execution of the original instrument between the words "create loans" and "again," a greatly different construction might arise of this portion of the operative power of the attorney in fact. We are merely at present determining the meaning of the face of the instrument in the light of a demurrer, and in no wise as respects the attending circumstances of the execution, which are not shown by the record before us.

It is the conceded rule, in general, that all powers conferred upon an agent by a formal instrument are to receive a strict interpretation, and the authority is never extended by intendment or construction beyond that which is given in terms, or is necessary for carrying the authority into effect, and that authority must be strictly pursued. Frost v. Cattle Co.,81 Tex. 505, 17 S.W. 52, 26 Am. St. Rep. 831; Gould v. Metcalf, 75 Tex. 455,12 S.W. 830. And a party dealing with an agent is chargeable with notice of the contents of the power under which he acts, and must interpret it at his own peril. Green v. Hugo, 81 Tex. 452, 17 S.W. 79,26 Am. St. Rep. 824.

The judgment is reversed, and the cause is remanded for trial.