Sayer v. McNulty

SAWYER, J. We think the bill of sale introduced in evidence by defendants inadmissible. It does not purport to be the act of plaintiff or to have been executed by his authority. There is no allusion whatever to plaintiff in the document. Giving to the 'agreement organizing the company the most favorable construction for the defendants-, the most that can be said of it is, that it authorizes the foreman of the company, as plaintiff’s attorney in fact, to sell his interest in the claims of the company for nonpayment of assessments, and convey a title. The bill of sale does not purport to sell plaintiff’s interest. It does not appear whose interest was sold. It might have been any other one-half of one-sixteenth interest in the whole company. Donahue does not sign it, or appear in the body of the instrument to act, as foreman of the company or as agent for plaintiff or any other party. He does not purport to execute in pursuance of a power. There is something more than a latent ambiguity to be explained, within the well-established rule of evidence upon that subject. All that appears in the instrument is that a fraction of the claim of the Richardson Company was sold by G. P. Donahue, to John Dooly, for nonpayment of assessments. Everything else is to be supplied by proof aliunde. The instrument in question, so far as anything to the contrary appears on its face, might just as well have been made to do duty -as evidence, on a sale of a similar fraction of any other of the thirteen members of the company.

The case is not one where the owner -of property places it in the hands of an agent for the purpose of sale upon general or special instructions. In such a ease less formality might be required. But in this instance there is a naked power to sell in case of default to enforce the payment of assessments. As to the owner the sale takes place in invitum. The precise mode to be pursued is not pointed out in the articles of agreement containing the power, but in such case it would doubtless be necessary that the sale should be at public auction, upon a reasonable notice in order that the property might not be sacrificed. The document under consideration does not show the mode of the sale, or make any reference to the authority under which it was made, or to the -owner of the interest sold.

[133]There is much confusion in the authorities as to what instruments, not under sea], executed'by agents shall bo considered as contracts binding upon the principal. But we think it will be found-that it must appear upon the face of the contract itself that the agent intended to bind some other party and not himself. But the cases in which great latitude of construction has been given in this respect are those where the principal has intrusted the agent with authority to act for his interest and benefit, and where his will is supposed to be consulted and carried out, and not cases of the exercise of -a power to make sales for the purpose of enforcing a remedy which seme other party has against the principal.