(December Term, 1847.)
1. A power of attorney, though under seal, may be revoked by parol.
2. A plaintiff in an action of assumpsit cannot be nonsuited, though the verdict of the jury is for less than $60, if he files an affidavit in the words of the act of Assembly, Rev. St., ch. 31, sec. 42. "that the sum for which his suit is brought" (being over $60) "is really due, but for want of proof he cannot make recovery."
3. What number of witnesses shall be taxed for a party who recovers is a matter of discretion in the Court below, and cannot be reviewed in the Supreme Court.
APPEAL from the Superior Court of Law of RANDOLPH, at Fall Term, 1847, Bailey, J., presiding.
J. H. Haughton for plaintiff.
Iredell for defendant.
This was an action of assumpsit brought in the Superior Court of Randolph.
The following was the case: The plaintiff was employed by the defendant and others, as an agent to go to Alabama and settle the estate of their brother and receive from the (75) executor his share thereof, and bring it to this State. The appointment of the plaintiff was by deed. He made one trip, and after returning home he made a second, when he was shown by the executor a letter from the defendant revoking the power, before given, so far as he was concerned. The action was brought to recover the defendant's aliquot portion of the expenses of both trips, and also the commissions of 10 per cent on the distributive share of the defendant. It was admitted by the defendant that he was bound for one-sixth part of the expenses of the first trip, but insisted he was bound for no part of the second as upon the return of the plaintiff he had revoked the power of attorney by parol. There was contradictory evidence of the parol revocation. On the part of the plaintiff it was contended that the power under which he acted, being an instrument under seal, it could not be revoked but by an instrument of equal dignity, and that, therefore, whether the revocation was attempted by parol after the termination of the first trip, or by the letter upon his return to Alabama, it was equally inoperative, and he was entitled to recover the defendant's share of the expenses of both trips.
His Honor charged the jury that if they believed there was a parol revocation of the power of attorney before the plaintiff started upon the second trip to Alabama, they should allow damages to the amount of one-sixth of the expenses of the first trip; and if they should find that there was no revocation before the plaintiff left on the second trip, but that the power was revoked by letter after he reached Alabama, in that case they should allow damages for the expenses of the first trip, and also for his expenses in going to Alabama the second time, but not his expenses home.
The jury returned a verdict for $43.16, being the defendant's share of the expenses of the first trip and his share of his expenses out, the second. The defendant then moved to nonsuit the plaintiff, whereupon the plaintiff filed an affidavit, under the act of Assembly, Rev. St., ch. 31, sec. 42, setting (76) forth that the sum of $152, for which his suit was instituted, was justly due him from the defendant, but that he had failed to recover said sum for the want of proof of the amount really due. The Court refused the motion. A motion was then made by the defendant to tax the plaintiff with such of his witnesses (there being in all twenty-three) as were not necessary to prove his account, and such as were examined as to the commissions. The motion was refused, upon the ground that they all were examined and testified to some material fact.
The plaintiff then moved for a new trial for misdirection of the judge in charging the jury that the power of attorney could be revoked by parol or by letter. This motion was also overruled, and both parties appealed.
It is not denied by the plaintiff that, in this case it was within the power of the defendant to put an end to his agency by revoking his authority. Indeed, this is a doctrine so consonant with justice and common sense that it requires no reasoning to prove it. But he contends that it is a maxim of the common law that every instrument must be revoked by one of equal dignity. It is true an instrument under seal cannot be released or discharged by an instrument not under seal or by parol, but we do not consider the rule as applicable to the revocation of powers of attorney, especially to such an one as we are now considering. The authority of an agent is conferred at the mere will of his principal, and is to be executed for his benefit; the principal, therefore, has the right to put an end to the agency whenever he pleases, and the agent has no right to insist upon acting when the confidence at first reposed in him is withdrawn. In this case it was not necessary to enable the (77) plaintiff to execute his agency that his power should be under seal; one by parol, or by writing of any kind, would have been sufficient; it certainly cannot require more form to revoke the power than to create it. Mr. Story, in his treatise on agency, page 606, lays it down that the revocation of a power may be by a direct and formal declaration publicly made known, or by an informal writing, or by parol, or it may be implied from circumstances, and he nowhere intimates, nor do any of the authorities we have looked into, that when the power is created by deed it must be revoked by deed. And, as was before remarked, the nature of the connection between the principal and the agent seems to be at war with such a principle. It is stated by Mr. Story, in the same page, that an agency may be revoked by implication, and all the text-writers lay down the same doctrine. Thus, if another agent is appointed to execute powers previously entrusted to some other person, it is a revocation, in general, of the power of the latter. For this proposition Mr. Story cites Copeland v. Insurance Co., 6 Pick., 198. In that case it was decided that a power given to one Pedrick to sell the interest of his principal in a vessel was revoked by a subsequent letter of instruction to him and the master to sell. As, then, an agent may be appointed by parol, and as the appointment of a subsequent agent supersedes and revokes by the powers previously granted to another, it follows that the power of the latter, though created by deed, may be revoked by the principal by parol. But the case in Pickering goes further. The case does not state, in so many words, that the power granted to Pedrick was under seal, but the facts set forth in the case show that was the fact, and, if so, is a direct authority in this case. This is the only point raised in the plaintiff's bill of exceptions as to the judge's charge.
We presume the motion intended to be made by the defendant, with respect to the costs, was that he should (78) not be taxed in the will with more than two of the plaintiff's witnesses, to prove each fact necessary to sustain his case. The act of 1836, Rev. Stat., ch. 31, sec. 76, after providing that the person in whose favor judgment shall be given shall recover his costs, further goes on to say, "provided that the party cast shall not be obliged to pay for more than two witnesses to prove any single fact." The practice upon this section of the law has uniformly been not to throw upon the successful party the payment of any of his witnesses, because he has testified to a fact already proved by two others, provided he also proves some other material fact. His Honor has certified that such was the case here. The defendant's motion was therefore properly overruled for this reason. Besides, this Court cannot undertake to review decisions upon such questions.
The defendant's motion to nonsuit the plaintiff was properly overruled. The Legislature has limited the jurisdiction of the Superior Courts, in matters of contract, to all sums over $60, when due by open account, etc., and to $100 when due by bond, note, or liquidated account, (Rev. Stat., ch. 31, sec. 40), and by the 42d section it provides that if any suit shall be commenced in any Superior Court for a greater sum than is due, with an intent to evade the law, and by the verdict of a jury it shall be ascertained that a less sum is due to him than the Superior Court has jurisdiction of, it shall be the duty of the Court to nonsuit the plaintiff unless he files an affidavit that the sum for which his suit is brought is really due, but for want of proof, etc., he cannot make recovery; in which case he shall have judgment for the sum ascertained by the verdict. In this case the affidavit of the plaintiff, in the words of the act, was made and filed.
PER CURIAM. Judgment affirmed on each appeal, and each appellant must pay the costs of his appeal.
Cited: Martin v. Holly, 104 N.C. 39.