Golinsky v. Allison

Harrison, J. The plaintiffs brought this action to-foreclose a mortgage upon certain property—mining claims and other real estate—situate in the county of Shasta. The mortgage, and also the promissory note for which it was given as security, were executed to the plaintiffs by the. defendant Barron for himself, and as the attorney-in-fact of his codefendants, Allison and Sackett. The power of attorney from Allison and Sackett to Barron, under which these instruments were executed, gave him authority “ to superintend all our property in Shasta county and state of California, known as the ‘ Snyder Mine/ and all other mines acquired by us by purchase or otherwise; and also all water rights and mill property, and to preserve, manage, sell, and dispose of any and all of the said mines, mills, or other property in such manner as he shall deem meet and proper and for our best interest;- and also to locate mill-sites, townsites, mining claims, and water rights, and take all the necessary legal steps or proceedings to accomplish the same, and manage, work, sell, and dispose of any and all of them to our best advantage.” The court held that the authority given by this power of attorney was sufficient to authorize the execution of the note and mortgage, and rendered judgment in favor of the plaintiffs. The defendants have appealed.

A power of attorney, like any other instrument, is to be construed according to the natural import of its language; and the authority which the principal has conferred upon his agent is not to be extended by im~ [460]plication beyond the natural and ordinary significance of the terms in which that authority has been given. The attorney has only such authority as the principal has chosen to confer upon him, and one dealing with him must ascertain at his own risk whether his acts will bind the principal. By the above letter of attorney given by Allison and Sackett to Barron, he had authority to “ superintend ” the property of his principals, and to “preserve, manage, sell, and dispose of” the same, and also to locate millsites, mining claims, and water rights, and “to manage, work, sell, and dispose of them.” A power to sell and convey real estate does not authorize the attorney to mortgage it. (Jeffrey v. Hursh, 49 Mich. 31; Wood v. Goodridge, 6 Cush. 117; 52 Am. Dec. 771; Brown v. Rouse, 93 Cal. 237.) For an exhaustive discussion of the subject see Campbell v. Foster Home Assn., 163 Pa. St. 609; 43 Am. St. Rep. 818. “The power is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgagor.” (Jeffrey v. Hursh, supra.) In Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235, it was held that an attorney, who was authorized to “superintend ” the real and personal estate of his principal had no authority to make a sale of the property. There is clearly no power conferred by the above instrument to execute a promissory note in the name of the principals, or to mortgage their property to secure its payment. The authority to “preserve and manage” the property, or to “manage and work ” it, "cannot by any reasonable construction be held to include an authority to mortgage it, and is inconsistent with the idea of imposing a personal charge upon the principals, except for such expenses as may be incurred in its preservation and management.