Travers v. Crane

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

The plaintiff filed this hill to enjoin proceedings at law on the part of the defendants, to recover certain real estate in San Francisco. The foundation of the plaintiff’s (appellant’s) claim to equitable relief is, that he made an executory contract in July, 1853, with one Eaton, who was then the attorney in fact for Gray, by the terms of which, he was to pay some one hundred dollars in cash, and a further sum in a few months; a memorandum of the agreement was made at the time. The one hundred dollars was paid, and the defendant, shortly afterward, let into possession, which he has since retained. Afterward, on the sixteenth day of July, 1853, he paid to Eaton the balance of the purchase money, and obtained from him a deed in the name of Gray. At the time of the first contract, Gray was in the Atlantic States; Eaton and plaintiff were in San Francisco. Gray died the day before the last payment, and the execution of the deed. The death of Gray was, of course, unknown to the plaintiff or Eaton at this last date, and the payment was made in good faith.

The main question is as to the effect of this payment to the attorney after the death of the principal. We state the proposition in this simple form, because the facts of this case do not authorize the qualifications which are made in the appellant’s argument.

Undoubtedly it is a hard rule, to hold that the death of a principal, who has, by authentic act, given to another a power to represent him in a particular transaction, should have the effect of defrauding an innocent third person of his money, when usual, and even extraordinary prudence could not avail to protect him. And the civil law, in this respect, seems more reasonable than ours; for that system, while it recognized the general rule, that a mere power expired by the death of the principal or agent, annexed this qualification, that the acts of the agent, done Iona fide, in ignorance of the death of his principal, were held valid and binding upon the heirs of the latter. (Story on Agency, p. 636.) This principle seems to have been adopted into the commercial jurisprudence of the modern nations of continental Europe; and Mr. Story adds, that similar principles will be found adopted into [17]that of Scotland. And so just is the principle, that two of the States of the Union have adopted it by Legislative Act. (2 Kent 647, note a.) The case of Cassiday v. McKenzie (4 Watts & S. 284)is the only case to which we have been referred, where it has been decided—if such be the decision—that the payment of money to the agent after the death of the principal is good. But however strong the reasoning of that case may tend in this direction, it is proper to remark that it was not necessary there so to hold. The facts of that case were, that one McKenzie drew an order on Cassiday, to pay the bearer, Robert Bayoon, a sum of money. This sum was paid after the death of the drawer. But the witness, Bayoon, testified, that the money was, by agreement, coming to him. The order itself purported to be an equitable assignment of the debt, and not a mere agency to receive money for another; and certainly, in connection with this proof of ownership by the witness, authorized him to receive the debt. The opinion, therefore, of the learned Judge may be regarded more as an extrajudicial indication of his views on the general subject, than as the adjudication of the Court upon the point in question. But according all proper weight to this opinion, as the judgment of a Court of great respectability, it stands alone among common law authorities, and is opposed by an array too formidable to permit us to follow it. It is true, that Mr. Justice Story (on Agency, sec. 495) uses this language, which is cited by the learned counsel for the appellant: “ Reasonable as these doctrines (of the civil law) seem, and convenient as they must be admitted to be for the practical purposes of trade and commerce, it has been thought that they do not prevail at common law, as recognized either in England or America. But it may be doubted whether our law deserves such a reproach, at least to the full extent in which it is usually imputed to it.” But the next sentence explains what this learned jurist meant to say in this cautious extract: “ Regularly, indeed, where the act to be done must be done in the name of the principal, and not in that of the agent; the authority is extinguished by the death of the principal, because it has then become incapable of being so executed; ” and he proceeds to say, “ Where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed a revocation under all circumstances, and that a subsequent execution of it may be valid; but where the act is required to be done in the name of the principal, the same objection would seem to