Agency. Executor and Administrator. Power of Attorney. Where a power of attorney gives to two persons named a bare authority to receive money from a fund to be distributed, they not being partners in business and having no interest in the fund, neither of them alone has authority to receive the money without the consent of the other.
A power of attorney from the next of kin in a foreign country of one who died in this Commonwealth authorizing the payment of their shares of the estate of the deceased to two persons named as attorneys, one being a resident in this Commonwealth and the other a United States consul in the foreign country, does not give authority to the attorney in this Commonwealth to receive payments without the consent of his co-attorney; and if the administrator of the estate of the deceased pays the amounts of the shares of the principals to the attorney in this country without the knowledge or consent of his co-attorney in the foreign country, and the attorney to whom the payments are made absconds with the money, such payments will be disallowed in the accounts of the administrator and he will be held liable to the principals to make good their loss. If the attorney to whom the money was paid appeared in behalf of the principals to consent to the appointment of the administrator this does not increase his authority to receive the money.
HAMMOND, J.
The crucial question is: Was the payment to Smythe the agent a payment to his principals? Smythe's only authority to receive the money was under the power of attorney. Under that power he was a joint agent with Walker. They were private agents as distinguished from public agents. They were not partners in business, nor did they have any interest in the fund to which their principals were entitled. They were mere agents having only a bare authority, and both constituted one agent and neither was a complete agent by himself. In the language of Coke they "had but a mere and bare authority and they both [did] in law make but one attorney." Co. Lit. 49 b. The powers of the agency were conferred upon neither acting alone and without the consent of the other, but only upon both acting together. The logical result of such a situation is that the act of both, or at least the consent of both to the act of one, is essential to the valid exercise of any power of the agency; and such is the law. Co. Lit., ubi supra. Towne v. Jaquith, 6 Mass. 46. Copeland v. Mercantile Ins. Co. 6 Pick. 198. 2 Kent Com. 633, and cases cited. Story, Agency, (9th ed.) § 42, and cases therein cited. See also for collection of some of the authorities, 1 Am. Eng. Encyc. of Law, (2d ed.) 1057.
The payments were made to Smythe alone. He appropriated the money to his own use and absconded. The justice found that the blank power as originally drawn by Smythe and sent to Walker, the United States consul at Queenstown, contained only the name of the former as the proposed agent, but that, before it was executed, Walker's name was inserted "because of doubts entertained by Walker and his secretary Piatt, as to the financial responsibility of Smythe." He further found that Walker had no knowledge that the payments were being made to Smythe; that he, Walker, "supposed . . . that Smythe would attend to such legal matters as required to be attended to here, but that any money that might be collected or realized would be sent to him for distribution amongst the heirs"; also that Walker never consented that Smythe should receive the money without authority from him, and never gave him any such authority and never gave to the administrator any authority to pay or to transfer to Smythe the property. The principals never have ratified personally the payment to Smythe. They never have ratified it by the act of their agents under the power, because only one of the joint agents has consented to it. The lack of the consent of the other is fatal to the validity of the act as an exercise of agency under the power.
It is urged by the accountant that under the circumstances of this case the fair interpretation of the power is that Smythe who resided here, where the money was, was to do all things here necessary and proper to collect and receive it, and that he was to send it to Walker in Ireland, where the principals resided, for the simple purpose of distribution. But we cannot so interpret the power. It was perfectly easy for the accountant to keep the money until he received the consent of both agents, or of the principals, as to what he should do with it. All the circumstances indicate that the principals never intended that Smythe alone should receive the money without at least the consent of Walker, so that the latter might be held accountable as though both had received it. They looked to Walker for safety, and not alone or chiefly to Smythe. There is nothing in the circumstances of this case to control the general principle.
Nor does the case come within certain commercial exceptions where the general rule has yielded for the benefit of trade, or to meet the supposed necessities in contracts made by one of several joint owners of ships, and in cases of sales made by one of two factors of goods consigned to them for sale. See Hawley v. Keeler, 53 N.Y. 114. The case is also clearly distinguishable from cases like Heard v. Lodge, 20 Pick. 53, upon which the accountant relies. Nor is the fact that Smythe appeared as attorney for the principals to consent to the appointment of the accountant as administrator of importance.
Exceptions overruled.