Johnston v. Wright

The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.

The decision of this cause depends upon the construction to be given to the power of attorney from Cook to Jones; for if the language of the power can be extended to embrace the eontract sued on, then the release executed by Jones as Cook’s attorney, would be a complete bar to the recovery in this action. The language of the power authorizes the attorney “ to settle and adjust all partnership debts, accounts and demands, and all other accounts and demands now subsisting, or which may hereafter subsist between me and any person or persons whatsoever;” and for this among other purposes, the power is given to execute releases. The debt sued on is not a partnership debt, but is a covenant to which the grantor of the power is a joint covenantee with two others, and the question is whether the words “ between me and any person or persons whatsoever,” can be made to include a debt not owing to the principal alone, but to him jointly with others. The rule laid down by the authorities for the construction of these instruments, requires them to be confined to the simple meaning of the terms expressed, and not to be extended by implication in any case except where the implication is absolutely necessary to carry out the expressly granted power. Judge Story, in his work on agency, § 68, says : “ Indeed, formal instruments of this sort are ordinarily subjected to a strict interpretation, and the authority is never extended beyond that which is given in terrhs, or which is necessary and proper for carrying the authority so given into full effect.” A case analagous to this is that of Simons v. Johnson, 3 Barn. and Adol., 175. These mutual releases were given by the parties for all claims which each had against the other. But it was held not to extend to a claim which the plaintiff had against the defendant and another jointly.

In Atwood v. Mannings, 7 Barn. and Cress., 279, the power was to endorse bills “ for the principal, in his name, and to his use,” and also to accept bills drawn by his agents or correspondents.” In the suit upon a bill drawn by one of the partners of the principal, for the benefit of the partnership, and accepted by the agent, it was held that the power extended only to the individual business of the principal, and not to his partnership affairs. So in the case of Reading Railroad Company v. Johnson, 7 Watts & Sergeant, 317, where a release was relied on to render a witness competent, the Court say: “ The release is quite formally drawn, but then all the actions, etc., appear to be such only as [376]