Skaggs v. Murchison & Coleman

Delany, J. Com. App. Many questions are raised by the assignments of error and discussed in the brief of counsel for appellant. First among these is that of jurisdiction; for if the court below had no jurisdiction over the person of the defendant, the whole case is at an end. This will depend upon the question whether the mortgage for $2,000, given by the defendant in December, 1881, was still subsisting and binding upon him. If so, the court could take jurisdiction and foreclose it, as the land lay in Henderson county. But if the mortgage was paid off and discharged before the tiling of this suit, then the court should have sustained the defendant’s plea to the jurisdiction, or at least should have dismissed the suit, when the evidence was all in. The evidence shows that in December, 1881, the defendant rented the farm to one King, and the written contract of tenancy is copied into the record. By its terms King was to take possession of the place, to repair the houses, fences, etc.; to ditch and drain certain portions of the land; to employ laborers; to procure farming [352] implements and supplies, and make, a crop of corn and cotton in the year 1882. The expenses were to be paid at the end of the year out of the crop, and of the remainder, after paying the expenses, King was to have one-half. He was also to own one-ha-lf of the farming implements that were purchased. But as the defendant had not the ready money, he gave to the plaintiffs the mortgage for $2,000 upon the land and the future crop, in order to procure the necessary advances. He also told the plaintiffs that King would be on the place and would draw the supplies as they were needed. He further gave King a power of attorney to mortgage the work stock in the place for the sum of $250. But before the end of May, 1882, King had executed and delivered to the plaintiffs a mortgage on the coming crop for $1,500, and one upon the work stock for $500, and had agreed with them that the sums advanced by them after that date should be paid before any part of the crop should be applied to the mortgage given by the defendant in December, 1881. How, the question is, whether King had authority to give these mortgages and to make that agreement. The court below came to the conclusion that “ Skaggs held King out to the plaintiffs as his general agent, for all purposes connected with the Jones farm, and although the defendant Skaggs perhaps never intended to give the said King authority to contract debts over $2,000, yet his leaving King here, and after execution of the first mortgage, giving him a power of attorney to mortgage the stock, would present King to the world asan agent with full authority to contract debts for said farm. It seems to be a correct rule that defendant should suffer the consequences of his negligence, rather than one who had been led to believe King defendant’s agent,- and advanced money for the benefit of defendant’s property. But the court is of opinion that there is another view of this case that would make defendant liable for the acts of King, though King had no authority to contract debts beyond the $2,000 mortgage and the mortgage of the stock. The proof shows that it took the amount of the two mortgages to repair the farm and to make the crop, and when the gathering of the crop commenced, defendant’s agent, King, had no méans with which to gather the crop. How, what is the defendant’s condition? He has a large crop. What is his agent to do? Ho money. His principal, Skaggs, said he is unable to forward him money. Must all the labor be lost?” The court was of opinion that, without express authority, the law would imply that Skaggs would be liable for any debts necessarily contracted to gather and save from destruction the property and crop [353] made. And the court holds that the defendant would be bound for any debts contracted over the amount of the mortgage to market the crop made. The court proceeds to declare that the proceeds of the crop were properly applied to the later expenditures, thus leaving the $2,000 mortgage unpaid, thus deciding that this suit was well brought. Our opinion is that the presiding judge misapprehended the evidence, and we by no means agree with him in his conclusions of law. He seems to have supposed that the power of attorney to mortgage the stock was given some time after the mortgage for $2,000. This is a mistake. The power was given on the 7th day of November, 1881, before King had taken possession of the farm. It was evidently given for a temporary purpose, viz., to enable King, who was about to take possession of the farm, to supply pressing wants until Skaggs could make some permanent arrangement for supplies. This permanent arrangement he made by the $2,000 mortgage which was executed on the 17th of December, 1881, and was to mature on the 1st of January, 1883. We agree with the court below that Skaggs did not suspect that he was giving to King any power beyond the scope of these paper’s; and we have been unable to find, in the record, anything from which the plaintiffs could infer such a power. It is so well settled as to be elementary, that powers of attorney and similar instruments are to be strictly construed, and that, under no circumstances, will the principal be bound beyond the plain import of the instrument. Reese v. Medlock, 27 Tex., 120. Nor does the evidence show that the goods and money advanced by the plaintiffs were used for the benefit of the defendant and his property. On the contrary, it seems clear that a large part was appropriated by King to his private purposes, in utter disregard of the rights of Skaggs; and that the plaintiffs were aware of the fact. Nor can we concur in the last conclusion of the court, that, even in the absence of authority on the part of King, equity would hold the defendant bound to repay the moneys which are shown to have been expended. The record does not show such an emergency as would justify the plaintiffs in interfering to save the property of Skaggs. It does not show that Skaggs, in the fall of 1882, was without money or resources to take care of his property. But it does show that he was ignorant of the large outlays that were being made; that he was thoroughly able to protect his property from destruction; and it is extremely probable that, if he had known what was being done by King and the plaintiffs, he would have interfered and have saved his property in his own way. Our opinion is [354] that the payments should have been applied to the discharge of the debt secured by the mortgage. And, so believing, we express no opinion upon the other questions which are raised in the case. We simply decide that, as the mortgage had been paid off and discharged, the court below had no jurisdiction to try the cause. Our opinion is that the judgment should be reversed and the cause dismissed. Beversed and dismissed. [Opinion adopted February 20, 1885.]