H. A. BOORD, PLAINTIFF IN ERROR,
v.
JOSEPH STRAUSS, JOSEPH FERST AND AARON FERST, PARTNERS DOING BUSINESS AS M. FERST'S SONS & CO., DEFENDANTS IN ERROR
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Boord sued Strauss and the Fersts on a promissory note, but the Florida Supreme Court reversed the directed verdict for the plaintiffs, holding that the agent Welsby lacked authority to execute the note because the power of attorney did not expressly authorize execution of negotiable instruments and such authority cannot be implied from the agent's other delegated powers.
An agent lacks authority to execute a negotiable instrument unless such authority is expressly granted or is a necessary incident of the character bestowed upon the agent. The authority to collect debts, manage lands, and conduct legal proceedings does not imply authority to execute negotiable instruments, particularly not to secure another person's debt.
“The power of attorney gave Welsby no authority to execute a negotiable instrument, binding his principal for the payment of another person's debt.”
Establishes the core holding that the agent lacked authority to execute the note at issue
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Join FLexlaw to unlock all legal intelligenceWelsby was an agent acting under a written power of attorney that authorized him to collect debts, manage the principal's lands, and conduct legal pro…
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•Cautiíii, J.:
The court below erred in directing a verdict for plaintiffs, and in refusing the motion for a new trial, as there was no view of the evidence upon which plaintiffs were entitled to recover. The power of attorney gave Welsby no authority to execute a negotiable instrument, binding his principal for the payment of another person’s debt. There was no express authority given by the power of attorney to execute negotiable instruments; and even if there was, it would be confined to the making of such paper in the legitimate business of the principal or for his benefit, and the agent could not bind his principal by making a note for the benefit of a third person. Mechem on Agency, sec.
392. The authority of Welsby was entirely in writing, and this writing was exhibited to plaintiffs’ agent before the note was executed, hence he was •chargeable with notice of the extent of Welsby’s agency. American Lead Pencil Co. vs. Wolfe, 30 Fla. 360, 11 South. Rep.
488. No implied authority to execute the note to secure Curry’s debt can be deduced from any of the matters delegated to Welsby as agent by the power of attorney, viz: to ask, demand, sue for, collect, receive and give acquittances for debts, including mortgages and rents due the principal, (Daniel on Negotiable Instruments, secs. 292-3; Mechem on Agency, sec. 391); general control and supervision over all the principal’s lands, including the right to prevent trespasses thereon, and to collect and compound damages for trespasses or waste committed thereon, and to sell and convey the lands (Mechem on Agency, sec 398); to institute, prosecute, appeal or defend, discontinue or nonsuit, all legal and equitable proceedings for or against the principal in respect of any goods, chattels, debts, demands or things whatsoever and to employ counsel to assist the agent in these matters. Daniel on Negotiable Instruments, sec. 293; Mechem on Agency, sec.
391. The authority to execute negotiable instruments will be held to be conferred only in those cases where it is expressly given, or where it is a necessary incident of the character bestowed upon the agent. Mechem on Agency, sec. 390; Daniel on Negotiable Instruments, sec. 292.
The judgment is reversed and a new trial granted.
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Citator
Cited By
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Bogue Elec. Mfg. Co. v. Coconut Grove Bank, 269 F.2d 1 (5th Cir. 1959)…gency § 107a (2), p. 1273. There is no such presumption of power where the agent does not have possession of the goods which he is authorized to sell. Pasco County Peach Ass’n v. J. F. Solley & Co., 4 Cir., 1945, 146 F. 2d 880. Cf. Boord v. Strauss, 39 Fla. 381, 22 So. 713; Tiffany on Agency 73, § 24. It follows that there would be no implied power of the agent authorized to sell by which he could lawfully indorse checks payable to his principal. 2 C.J.S. Agency § 112a (2), pp. 1301-1302. The case was bro…
Authorities Cited
- The Am. Lead Pencil Co. v. F. A. Wolfe & Co., 30 Fla. 360 (Fla. 1892)