Grayson v. Bannon

The opinion of the Court was delivered by Sergeant, J. The material question in this case is, whether Moore was admissible as a witness for the plaintiff, to prove the existence of a written power of attorney executed by the plaintiff, authorising him to make a compromise in relation to the land in dispute; that in pursuance of the power he entered into a contract under seal with John Bannon, in the presence and with the consent of Jeremiah Bannon, the person to whom a treasurer’s deed had been made. The defendant objected to this testimony, on the ground that the attorney in fact is incompetent to prove the existence of a written power to himself, and the court below rejected the testimony. It is understood also, that the facts of the loss of the power of attorney, and of diligent search for it, were embraced in the offer of the evidence, though not specifically stated in the record. It must be confessed that, in our own reports, there is an extraordinary conflict among the early authorities on this point, which seem to have left it in an unsettled state. In Miller v. Hayman, 1 Yeates 23, it is said by the court, that nothing is more frequent than persons buying lands, ships, and other property, through the medium of their friends. They, in many instances, do not wish to appear openly as bidders at public outcry. It would materially affect all such transactions, if the power or authority to purchase could not be proved by the agent or factor bidding. But the rule now laid down is not iutended as a general one. In this case J. Hubly, Esq., was sworn as a witness for the plaintiff, who, as sheriff', sued the defendant for the price of a house and four lots of ground purchased by him at public sale. And the case of Cunningham v. Galt, which was supposed to have decided the contrary, appeared on examination to have turned on another point; namely, that the witness was interested to prove he was appointed agent to [527] receive moneys due to him by the Presbyterian congregation of Pequea, The case of Stewart v. Richardson, 2 Yeates 89, is to the same effect with that of Miller v. Hayman. In Meredith v. Macoss, 1 Yeates 200, the suit was by a lessee from the owner against the defendant, who claimed, under a previous agreement, to lease to him for several years, made by the sister of the owner. The defendant offered the sister to prove her authority to rent the land, but she was rejected. The court say that her power must be proved by other testimony. If there was a written power of attorney, it ought to be produced to be judged of. If it did not exist, but is burnt, lost, or mislaid, she may be examined to that point; but the contents must be proved by other witnesses, or a copy. Here it is admitted that the agent is a witness to prove the existence and loss of the power, but is declared to be inadmissible to prove its contents. The next case is that of Plumstead v. Rudebaugh, 1 Yeates 503, which throws some doubt over the nature of the decision just mentioned; for the declarations of the agent being offered to show his agency, the court rejected them, saying this very point was fully argued and determined in bank in the same manner in Meredith v. Macoss. In Nicholson v. Mifflin, 2 Dall. 246, and 2 Yeates 38, Bonsall, a scrivener, was offered to prove that the defendant had given a written authority to him to dispose of the premises, which had been mislaid. The court held, that the agent was not a competent witness to prove his own authority for the sale of lands in this way. The contents of the writing must be proved by other witnesses. Livingston v. Swanwick, 2 Dall. 200, was a suit to recover the difference in a stock contract, and the plaintiff, having shown a contract signed by J. Anderson, offered Anderson as a witness to prove he had received a verbal authority from the defendant to make the contract. The defendant objected that Anderson was not a competent witness to prove his own authority. Per Curiam. —The witness is competent to prove every part of the transaction. He is not interested in the event of the suit, nor can the verdict in this case be given in evidence on the trial of the action for his commissions. He was a known established broker, and, unless he were admitted to give evidence of his instructions, (which were oral in this case, and are equally so in similar cases,) it would be impracticable to ascertain the facts. In later times, the subject again occurred in M’Gunnagle v. Thornton, 10 Serg. & Rawle 152, and there Mr. Justice Duncan, delivering the opinion of the court, says; “ J. Darragh, the agent, was a competent witness to prove his own authority to let for one year, notwithstanding some loose dicta to the contrary at nisi prius. It is the constant practice to admit agents to be witnesses for their principals, and every person is an agent, within the meaning of the rule, who makes a contract for another.” 1 Phill. Ev. 99; 2 Dall. [528] 200. Nor can it make any difference- that it was a contract for land. It is not here a sale of land, but a lease, which is good, though by parol, by the very letter of the statute of frauds. But our statute does not make the agreement void: it restricts its operation as to the acquisition of an interest in the land. No title in fee-simple can be derived under it, and that was the principle of the decision in Nicholson v. Mifflin, 2 Dall. 246. But an action will lie to recover damages for the non-performance, and parol evidence will be admitted of such agreement; 4 Dall. 152; and that although the agreement was only with an attorney, who had but a parol authority. In the case of Wood v. Galbraith, and Turnbull v. Vance, Gen. Armstrong was admitted a witness to prove by parol his general agency for the late proprietaries. And in M’Dowell v. Simpson, 3 Walls 129, Mr Brackenridge was held competent, in an ejectment, to prove that he had, as an agent of the plaintiff, given a lease to the defendant. Mr. Justice Kennedy says: “ The general rule seems to be in favour of the competency of the agent, unless in cases where the principal is sued on account of the negligence of the agent. There be is interested; because the judgment against the defendant would be evidence in a suit by defendant against the witness. Having no interest in the event of the suit, why should he not be competent to establish, by his own testimony, his authority as agent?” The weight of authority, therefore, especially in modern times, is in favour of the competency of the agent as a witness for his principal, in a suit brought by the principal against a third person; and I can perceive no reason for making a distinction between his competency to prove the existence and loss of a written power, and to prove its contents. Where the written instrument had been attested by witnesses, it would be necessary to call one of them, or if dead, or out of the jurisdiction of the court, to prove the handwriting. But where the instrument was no.t attested, it may be proved by any one acquainted with the handwriting, or the fact of execution: and if the witness offered is not interested in the event of the cause, nor disqualified by an infamous sentence, there is no principle upon which he can be rejected. A mere interest in the question, arising from the prejudice of the agent in favour of the authority under which he had acted, or from his commissions, goes to his credibility only, and not to his competency; and though evidence of the contents by a copy, or by the remembrance of others, would be more satisfactory to a court and jury, yet that is not a reason for rejecting the evidence in that case, more than in the numerous cases that daily occur, where testimony goes to the jury, to be estimated for what it is worth. Nor can I see any reason for drawing a distinction between such testimony, when offered to prove an authority respecting land and other cases. It is not to establish a verbal power to make a contract binding real estate. Here the power asserted is a written [529] power, sufficient within our act against frauds to bind real estate, which power has been lost; and if the existence, and loss, and contents are satisfactorily made out, it is as much the case of a contract under a written power, as if the writing itself were produced. It frequently happens that the loss of deeds and other written instruments respecting land, is supplied by such evidence, and must be so to effectuate justice, considering the various casualties to which human affairs are liable. No decided case, or opinion of elementary writers in English law, has been cited, to support the position that an agent, not interested in the event of the cause, is forbidden from proving his own authority, or the existence, loss, and contents of a written power to himself. In our sister states, the courts seem to have considered the law to be in favour of such evidence. In the proprietors of Kennebec v. Call, 1 Mass. 483, it is said by the court, that an agent who has an appointment in writing must produce it, and cannot testify as to its contents, unless it be lost or destroyed. In Kirkpatrick v. Lisna, 3 Bibb, 244, an agent, whose authority was created by letter, was held a competent witness to prove its contents. In Connelly’s Heirs v. Childs, 2 Marsh. Ken. Rep. 242, the witness had executed a deed for himself, and as attorney in fact for other heirs, and was called to prove the execution of the power of attorney under which he acted. It was held that, considered in the light of a mere agent, the witness was unquestionably competent, as well to prove the authority under which he acted, as to prove any other fact in the cause. The decision on this point renders it unnecessary to say more on. the other errors, than that as the case stood before the court below, these were rightly decided. The deposition of Craighead was pro* perly rejected. Judgment reversed, and a venire facias de novo awarded.