City of New York v. Du Bois

ACHESON, Circuit Judge. It is not necessary to decide whether •or not the collateral papers of July 24, 1885, and June 10, 1886, ex895 ecu ted by Tbomas JB. Farrington, have any binding force as against the plaintiffs. In the view I take of the case, they may be and are excluded from consideration. Putting them aside altogether, with what authority was Thomas 15. Farrington clothed? The utmost extent of his agency is to be found in the power of attorney of June 24, 1885. He had no other authority than is there defined. How, dearly, he was thereby constituted a special agent, empowered to do specific acts only. There was then pending in the United States circuit court for the Southern district of Hew York a suit in equity, brought by John Du Bois against the plaintiffs in the present action, for the infringement of letters patent and the recovery of damages therefor. The power of attorney concerned that case, and empowered Farrington “to carry on and conduct to final consummation or ,to compromise the above-stated case, and all claim, demand, or damages therein claimed or mentioned, in such manner or on such terms” as to him might “seem expedient,” with power to receipt: for money accruing from the same, and to give a release and discharge therefor. Far-rington was thus authorized to do one of two things, namely, either to cariy on and conduct the patent suit in the circuit court to a finality, or to compromise it;. In the attempted execution of his authority he did neither. Instead of carrying on the case in the circuit court, which was learned in the patent law, Farrington undertook, in connection with, the defendants, in the action, to withdraw the litigation from that jurisdiction, and to create a special tribunal to determine the rights of the parties. Ho such course of action was within the-terms of the power of attorney, or the scope of the agency thereby created. Nor can the reference be sustained as a “compromise.” In empowering Farrington to compromise the case Du Bois relied on the personal knowledge, ability, and integrity of his chosen agent. The-agency was a personal trust and confidence. To compromise implied the exercise by Farrington of Ms own judgment as to agreed terms of settlement. Upon the plainest principles of the law of agency, the authority conferred on Farrington to compromise could not be delegated by him to others. Yet nothing less than this was attempted here. The decision of the three referees was to be substituted for the judgment of the agent, who had been selected because of his supposed personal fitness. Moreover, the stipulation pursuant to the Hew York act was, in its terms, very unusual. It was wonderfully one-sided. It secured to Du Bois nothing; not even fair play. A report favorable to him would have availed him naught unless approved by the mayor of each of the two cities, — Ms antagonists. Yet he was clothed with no such veto power in case of a report adverse to him. It is not to be believed that a mode of procedure so extraordinary and unnecessary was contemplated by Du Bois. By no fair reading of the power of attorney can its scope be extended so as to cover the transaction-upon which the plaintiffs’ claim rests. For these reasons, and other reasons appearing in the answers to the defendant’s points, the finding of the court must be in favor of the defendant. And now, to wit,. December 23,1897, the court finds in favor of the defendant.