Gaines v. McKinley

COLLIER, C. J. — The question necessary to be considered is, did the power of attorney from the defendant to Cockburn, confer an authority to warrant the soundness of the slaves to the purchaser? In Skinner v. Gunn, (9 Porter’s Rep. 305,) this court say “an authority to do an act, must include power to do every thing usual and necessary to its accomplishment. Thus, an agent employed to get a bill discounted, may endorse it in the name of [448] his employer, and bind him by such endorsement. So, an agent employed to sell a horse, may warrant him to be sound, that being usually done in such cases. But in either of the cases here put, the power of the agent might have been restrained, by a prohibition to do the particular act.” So Mr. Justice Story says, that an agent entrusted to sell a horse, is clothed by implication, with power (unless expressly forbidden) to make a warranty on the sale. (Story’s Agency, 59, 97, 122.) No objection is made to the correctness of the rule as here stated; but it is argued for the defendant, that this case comes within the exception, and that the grant of power to sell the slaves with an express authority “to make good titles to the purchaser or purchasers, warranting them to be slaves for life,” impliedly inhibited the agent from making a warranty of soundness, upon the maxim expressio unius exclusio est alterius. Upon a sale of personal chattels, the seller impliedly stipulates with the purchaser, that the article sold is his own, and that he will indemnify him for the loss, if the title is in another person: (Ricks v. Dillahunty, 8 Porter’s Rep. 134.) The direction then, in the power of attorney, as to warranting the negroes to be slaves for life, conferred no additional authority upon the agent, as the silent operation of law would by the mere act of sale, have obliged the defendant to make good a defect in the title. And as the legal effect of the power is a mere authority to sell not enlarged by the terms noticed, it'is clear that the maxim relied on, will not lend its influence. To make it applicablé, and thus exclude the warranty of soundness, as an unwarrantable tension of the power granted, it should appear that the manner in which the sale was to be consummated, so far as it related to the warranty, was expressly pointed out, or that the power to warrant, went beyond what the law would imply from the sale itself. This view being decisive of the case upon its merits, we decline considering the other questions raised upon the bill of exceptions. The judgment is reversed, and the case remanded.