Mitchell v. Balderas

Opinion.— The questions raised by the assignments of error are as to the sufficiency of the power of attorney to authorize Joyce to sell land, and whether there was any ratification by Mitchell of the sale, and the admissibility of Joyce’s testimony to extend the power. That the power of attorney to Joyce was not a general one, we think is very apparent. Its purpose is stated to be, “ in order that he may, during m37 absence, attend to any and all matters and things wherein I maj7 have any interest,” etc. Now, by the term “ attend to,” it would seem that to look after, to care for, to superintend, control and preserve, was intended. This is the obvious meaning of the words used, and all that follows must be taken as indicating the necessary and appropriate means to accomplish that end. Judge Story says: “Subject to reasonable qualifications [20] and restrictions, the doctrine is unquestionably true, that an express written authority cannot be enlarged by parol evidence, or an authority be implied where exists an express one. The authority, too, as to the nature and extent, is construed according to the force of the terms used and the objects to be accomplished. An implied agency is never construed to extend beyond the obvious purposes for which it is apparently created. The intention of the parties, deduced from the nature and circumstances of the particular case, constitutes the true ground of every exposition of the extent of the authority, and when an intention cannot be clearly discerned the agency ceases to be recognized or implied.” Story on Agency, ch„ VI. These rules are recognized and enforced in several cases in our own court. In Beese v. Medlock, 27 Tex., 123, Moore, J.. says: “It is a well established principle that ■when an agency is created and conferred by a written instrument, the nature and extent of the authority given by it must be ascertained from the instrument itself, and cannot be enlarged bt' parol evidence of the usage of other agents in like cases,” etc. And in that case it was held that authority to sell, transfer and convey lands, and generally to do and perform all acts and deeds for me, and in my name, concerning any and all property, etc., did not authorize the agent to barter or exchange land for other property. So in Harrington v. Moore, 21 Tex., 544, it was held that an authority to collect notes, etc., does not authorize an agent to trade the notes for land. And in Cordova v. Knowles, 37 Tex., 19, a power of attorney to sell “ claims and effects,” it was held, could not be construed to authorize the sale of land. In Berry v. Harnage, 39 Tex., 651, where the power of attorney was general for the collection of debts, and to make, seal and execute deeds of conveyances, etc., it was held it did not confer authority to sell lands. In Alabama, in Dearing v. Lightfoot, 17 Ala., 33, where the subject is fully discussed and numerous cases cited, it was held that a general power of attorney to his [21] agent, u to act for him. in all cases whatever, and to do all which he himself might do,” the agent being at the time in charge of the plantation of his principal, did not confer upon him authority to sell slaves. Applying these principles to the construction of Mitchell’s power to Joyce, we think it evident that it conferred no power upon him to sell land. It is given that Joyce may attend to everything in which Mitchell may be interested, to collect money, to pay debts, to bring and defend suits, to settle accounts, to draw drafts, to sign and deliver papers not detrimental to his interests. It is abundant in words and specifications, but it does not say to sell lands; and to our minds nothing can be clearer than that if. Mitchell had intended to confer that authority he would have said so. We conclude that the power of attorney does not support the deed to Balderas; that the testimony of Joyce was not admissible to extend the authority of it, and as there is no proof of any ratification of the sale, that the court erred in giving judgment for defendant, and the judgment must, therefore, be reversed and the cause remanded.