Marquam v. Ray

Mr. Justice Eakin delivered the opinion of the court. There is but one question presented on the appeal, namely: Are the powers of attorney sufficient to authorize the deed by Sturgeon as attorney in fact for the Riley's to the plaintiff? If not, the judgment must be affirmed. There are two serious objections to the exercise by Sturgeon at this time of the power conferred: (1) The power granted seems to have been fully exercised by him in 1900; and (2), where the time within which the power is to be exercised is not fixed in the instrument, it must be exercised within a reasonable time. Mr. Chief Justice Strahan in the case of Coulter v. Portland Trust Co., 20 Or. 479 (26 Pac. 565, 27 Pac. 266), quoting from Gouldy v. Metcalf, 75 Tex. 455 (12 S. W. 830, 16 Am. St. Rep. 912), says: “ ‘The language used in the grant of general power is certainly very comprehensive, but the established rule of construction limits the authority derived by the general grant of power to the acts authorized by the terms employed in granting the special powers. When an authority is conferred upon an agent by a formal instrument, as by a power of attorney, there are two rules of construction to be-carefully attended to: (1) The meaning of the general words in the instrument will be restricted by the context, and construed accordingly. (2) The authority will be construed strictly, so as to exclude the exercise of any power which is not warranted either by the actual terms used, or as a [44] necessary means of executing the authority with’ effect’: Elwell’s Evans, Ag. 204; Reese v. Medlock, 27 Tex. 120 (84 Am. Dec. 611).” 1. The terms of this power must be construed in the light of the context as well as of the words creating the power. Omitting the qualifying words, the clause reads that the attorney is appointed “for me and in my name * * and for my use and benefit to sell and convey * * or (if unable to sell). * * to mortgage said .property * * for the purpose of raising money thereon.” This clearly means he is to sell or mortgage the lot in order to raise money for Georgia Eiley. When he has raised the móney, he has exhausted the power and his authority to sell is terminated. So far as appears here, the whole purpose of the power has been accomplished in the raising of the money on the mortgage. It is said in Clark & Skyles, Agency, p. 514: “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 the authority must be strictly construed. This rule has b.een well stated, as follows: ‘A formal instrument delegating power is ordinarily subjected to strict interpretation, and the authority is not extended beyond that which is given in terms, or which is necessary to carry into effect that which is expressly given.’ * * The guiding principle in the construction of powers is to be derived from a consideration of. the result, which the agent or depositary of power is appointed to accomplish. When a court is called upon to construe a written authority, its first duty is to ascertain what intention or purpose the principal had in view when he gave the authority to the agent; and, when that has been ascertained, the power is to be construed so as to effect that purpose, if possible, instead of defeating it.” [45] General words do not confer general power, but are limited to the purpose for which the authority is given, and are restricted to what is necessary for the proper performance of the particular act authorized. Also, this is a question for the court. It is said by the same authority (page 516): “When authority has been conferred upon an agent by a formal written instrument, it becomes a question of law for the court to decide what powers have thus been given to the agent: * * and since the construction of writings belongs to the court, and not to the jury, the fact and scope of the agency are in such cases questions of law, and are properly decided by the judge”: See, also, Bowstead, Agency, p. 68. 2. The power of attorney does not limit the time within which the act may be done. Therefore, it must be done within a reasonable time, where the act is but a single act or an alternative one. It is said in Clark & Skyles, Agency, p. 542: “If nothing is said in the power as to the time of sale, then the agent may, in good faith, exercise his discretion in selling at such time as he honestly believes will best subserve the interests of his principal. He cannot exercise such discretion, however, to sell at a very remote date from the time of his employment. * * ” In this case 10 years after the date of the creation of the agency is certainly too remote for its exercise when the power indicates that its purpose is to raise money speedily, and the attorney in fact had no authority to execute the deed offered in evidence in the name of his principals; and, as in ejectment cases the plaintiff must recover on the strength óf his own title, verdict was properly directed for the defendant. 3. Plaintiff, as an afterthought, suggests in this court for the first time that the form of verdict, being for defendant only, does not conform to Section 329, L. O. L., and that it was reversible error: but this is not [46] assigned as error, nor is it reversible on appeal by the plaintiff. Subdivision 2 of Section 329, L. O. L., taken in connection with Section 337, L. O. L., relates to the effect of the verdict and judgment thereon. Plaintiff is not prejudiced thereby. The judgment in this case cannot have the conclusive effect provided by these sections, but it is not an error from which plaintiff can appeal: See Hoover v. King, 43 Or. 281 (72 Pac. 880, 99 Am. St. Rep. 754, 65 L. R. A. 790); Sommer v. Compton, 52 Or. 173 (96 Pac. 124, 1065). Tbe judgment is affirmed. Affirmed.