Durbrow v. Eppens

The opinion of the court was delivered by Depue, Chief Justice. This suit was brought by the plaintiffs against the executors of Frederick P. Eppens, deceased. The declaration sets out the "deed or power of attorney” in full. To this declaration the defendants demurred. The cause specified, which practically embraces all the specifications except the last, is that the death of the deceased put an end to the agency of the plaintiffs, and was .an instantaneous and unqualified revocation of the authority of the plaintiffs. It must be borne in mind that all the policies adjusted which gave rise to the losses embraced in the — 16 — declaration were issued during the lifetime of the deceased. The power to issue policies had been exercised in the lifetime of the deceased. It is an established rule of the common law that the death of the principal puts an end to the agency when the authority is not coupled with an interest, and no act of agency subsequent thereto is binding on the estate of the principal. But where the power is coupled with an interest in the subject-matter of the agency, the agent may execute the authority, as his rights survive the death of the principal. 1 Am. & Eng. Encycl. L. 1222; Story Ag., §§ 488, 489. The leading case on this subject is Hunt v. Rousmanier, 8 Wheat. 174. It was there held that to constitute a power coupled with an interest there must be an interest in the thing itself, and not merely in the execution, of the power. Where the power of attorney forms part of a contract, and is security for money or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, and, if not so, is deemed irrevocable in law. ■ In the course of his opinion in that case Chief Justice Marshall said: “A power to A to sell for the benefit of B engrafted on an estate combed to A may be exercised at any time, and is not affected by the death of the. person who created it. His power is coupled with an interest in the thing, which enables him to execute it in his own name, and is therefore not dependent on the life of the person who created it.” In Gaussen v. Morton, 10 B. & C. 731, A, being indebted to B and his partners, in order to discharge the debt, executed to B a power of attorney, authorizing him to sell certain lands belonging to him. It was held that this, being an authority coupled with an interest, could not be revoked. In Walsh v. Whitcomb, 2 Esp. N. P. 565, Lord Kenyon said: “There is a difference in cases of powers of attorney. In general they are revocable from their nature; but there are these exceptions: where a power of attorney is part of a security for money, there it is not revocable; where a power of attorney is made to levy a fine as a part of a security, it was held not to be revocable. The principle is applicable to — 17 — every ease where a power of attorney is necessary to effectuate any security; such is not revocable." Where an authority or power is coupled with an interest, or where it is given for a valuable consideration, or where it is part of a security, there, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, in contemplation of law irrevocable, whether it is expressed to be so upon the face of the instrument conferring the authority or not. Thus, for example, if a power of attorney to levy a fine is executed as a part of a security to a creditor, the power, is irrevocable. So, if a power of attorney to sell a ship is taken as a security upon a loan of money, it is irrevocable. So, if the principal assigns all his effects for the benefit of his creditors, and gives the assignee a power of attorney to collect and receive all debts and outstanding claims, the power is irrevocable. So, if a power of attorney to sell lands is given to a creditor to pay his debts out of the proceeds of the sale, the power is irrevocable. So a remittance to an agent of money or goods, to be delivered to a creditor in discharge of his debt, is irrevocable after the creditor has assented thereto and signified his assent to the agent. Story Ag., § 477. In another part of his work on agency Mr. Justice Story adverts to the distinction between an authority which admits of severance, so as to be revoked as to the part which is unexecuted and good as to the part already executed, and says: “If the authority be not thus severable, and damage will thereby happen to the agent on account of the execution of the authority pro tanto,' there the principal will hot be allowed to revoke the unexecuted part, or, at least, not without fully indemnifying the agent. As to the rights of the other contracting party in this last case, they are not affected by the revocation; but he will retain them all, as well as all the remedies consequent upon' any violation of them, in the same manner as if no revocation had taken place. Id., § 466. Under the organization adopted by those who became mem-' bers of the company, as between themselves and the persons to whom policies were issued, the obligations of members were severah There was no joint stock, and the members — 18 — were liable on the policies issued as individuals; but, on an examination of the method on which the organization was effected, the parties had a joint interest. That interest consisted in maintaining the business of the company, which could not be prosecuted unless each member complied with the terms on which the association was founded. To accomplish that end the parties to the association united in selecting one person, or persons, as the agent of each, each member executing a deed or power of attorney to such agent. Each member was required to deposit a certain sum of money, and the deed, of each member contained a covenant that if at any time the amount standing to the credit of such member should be less than the amount of the deposit he was required to malee, it should be his duty immediately to make good such deficiency. The- deed further authorized and empowered the plaintiffs to adjust and pay losses which should be incurred. The policies issued by the association were joint in one .sense, and several in another, each member being responsible to the insured only for the amount he contracted for—the money necessaiy to meet the demands of the insured being provided from the money deposited by the members severally or required to be paid in by each for that purpose. The fund -so provided, whether from the deposits or from the moneys paid in, was a trust created for the benefit of the insured. In that respect the agency of the plaintiffs subsisted for the in■demnity of the insured, and the power conferred on the plaintiffs, as agents, to adjust and pay the amount of such insurance was a power delegated to them for the benefit of ■those who held policies issued by the plaintiffs, as the agents of the deceased and of the other members of the association. The form of the contract embraced in the policies issued by these associations was such as to give to each person insured an action against each one of the' members to recover of him the amount ascertained to be his quota of the loss insured against; but that factor in this method of insurance does not supersede the other indemnity that those having policies possessed, viz., the deposit and the contract to make and keep that deposit good to answer all obligations incurred. — 19 — A Lloyds insurance originally was an insurance based upon a fund made up of deposits by each one of the members, from which, when a loss was adjusted, the agent took the means of payment. In this country, in adopting the Lloyds system of insurance, money representing the entire insurance was not deposited,. In lieu of such a deposit the members each contributed a certain sum to make up a fund, and each contracted with agents, who were the representatives of the association, to pay in from time to time so much as should be needed to •pay losses. Under the Lloyds system of insurance, after the loss was adjusted or ascertained by action against the agents, the insured received from the fund so provided the amount of loss. The fund deposited was, in the strictest sense, a trust fund for the benefit of persons holding policies. Under the Lloyds system, as adopted in this country, the trust in favor of the insured consists of the amount deposited by ■each member and the covenant on the part of each member to pay in money enough to answer the amount due from him -upon such loss. The contract expressly provided that the .money deposited and that paid in should be held in trust to pay losses. The deed made by the deceased was twofold in its nature: •a contract and a power of attorney—a contract that created an interest in those who became insured on the responsibility • of individual members of the association, and a power of attorney, which included all such acts as were essential to ■the consummation of that contract. The power to adjust and pay comprised the adjustment and payment of the entire 'loss, for which all the members of the association were individually liable. Such a power must be exercised, necessarily, for all the members of the association. In making the adjustment and payment, the agents could not omit the share of 'loss which fell upon any one individual member. In this respect the insured, as well as the other members of the association, had an interest in the subject-matter of the agency and the powers conferred on the agents. The deed contained .an express covenant that the deceased would carry out, exe•cute and perform everything to which the plaintiffs should, — 20 — by virtue thereof, bind, him, and would pay in any deficiency arising from the payment of losses over and above the amount of his deposit. It is manifest that the power conferred upon the plaintiffs in the transaction of the business, so far as concerned the payment of losses to the insured, was a power coupled with an interest in the subject-matter of the agency, and hence was not revoked as to the policies of insurance issued by the plaintiffs before the death of the deceased. The remaining" specifications of causes of demurrer are: (1) That the declaration does not contain an allegation that letters of administration were issued under the will of the deceased. As a matter of pleading, such an allegation is unnecessary. A suit may be brought against executors de son tort. (2) That there is no averment in the declaration that the plaintiffs had presented any claim to the executors in compliance with Hie statute. Such an averment is unnecessary. The rule to limit creditors, if any rule was obtained, and the failure of a creditor to present his claim accordingly, are matters of defence. The demurrer should be overruled.