Rapley v. Price, Newlin & Co., 11 Ark. 713 (1851)

Jan. 1851 · Arkansas Supreme Court

11 Ark. 713

Rapley et al. vs. Price, Newlin & Co.

Where an attorney has a claim for collection, and the debtor, to save costs of suit, executes to him a power to confess judgment thereon, such power is upon a valid consideration, and coupled with an interest, and therefore not revocable, as held in Wassell vs. Reardon, ante.

Writ of Error to Pulaski Circuit Court.

F. W. & P. Teapnall, for the plaintiff.

It is a general principle of law that all powers not coupled with an interest may be revoked at any time. (Story on Agency, sec. 463, p. 598 ; sec. 465, p. 599.) And the revocation may be express, or it may be implied from circumstances, (ib. 605, sec. 474) or by acts of the principal inconsistent with its continuance, (ib. 607, sec. 475) as in this case, by the prosecution of the former writ of error, and the employment of an attorney to resist the confession of judgment, and the presentation to the court, before the confession, oí a written revocation.

Where a power is coupled with an interest it is irrevocable ; but the interest must be such as vests the right or title in the agent so that he may convey in his own name; and where no such right is vested the authority may be revoked. (Hunt vs. Roustnanier, 8 Wheat. R. 174. 5 Cond. Rep. (S.C. U.S.) 405. 2 Kent’s Com. 504, 505. Story on Agency, 176, sec. 150. lb. 198, sec. 164.) In this case the power is a naked authority, not coupled with any interest in Cummins, nor founded upon any consideration, nor is it a security for a pre-existing debt.

Cummins, contra.

A power of attorney to con/ess a judgment was irrevocable at common law. (Cades vs. Woodward, 1 Salk. 87. Walsh vs. Whitcomb, 2 Esp. 565. Willes 4SI7. 2 Sir. 882. Id. 1081.) So, where it is coupled with an interest, or given as a security. (Raymond vs. Squire, 11 J. R. 46. Bergen and others vs. — Caine’s C. 15. Watson and wife ad. vs. King, 4 Camp .272. Wheeler vs. Siocomb, 16 Pick. 52,) or in the nature of a Icin (Hammond vs. Allen, 2 Sumner 387); or forms part of the contract and is a security for money or for the performance of any act which is deemed valuable. Hunt vs. Rousmamer, ad. 8 Wheat. 174. Hodgson vs. Anderson, 3 B. & G. 842. Caussen vs. Morton et al. 10 B. & C. 731. 1 Bac. Ah. 300.

If there is a consideration for the execution of the power, or the object to be attained is a benefit, to the agent or any other person, it is irrevocable during the lifetime of the party. Hunt vs. Rousemanier, ad. 8 Wheat. 170. S.C. 1 Pet. 1, and 2 Wash. R. 244. See also Story on Agency, p. 607, sec. 476, p. 608, sec. 477.

Nor will a party be permitted to deny his own act which was expressly designed to influence the conduct of another and did so influence it, and which in good conscience and honest dealing he ought riot to be permitted to gainsay. Welland Ganal Go. vs. Hathaway, 8 Wend. 480.

Mr. Justice Waliudb.

delivered the opinion of the Court.

The facts of record in this case are substantially the same as those in the case of Wassell vs. Reardon, decided at the present term, with this exception, that in this case the defendant appeared at the trial and, simultaneously with the application for leave to confess judgment, tendered his formal letter of revocation of the power of attorney by virtue of which the judgment was confessed. The question therefore is, was the power rev ok able ?

In the case of Wassell vs. Reardon, above referred to, it was held that a power of attorney given for the purpose, consideration and inducements, such as this was, is a power coupled with an interest and is not revocable at the mere pleasure of the principal, leaving to be determined when a proper case is presented, what action the court below should take to stay the execution of the power when it is made to appear that the subject matter of the power is extinguished by payment or otherwise.

That decision is in point and is decisive of the question presented in this case. Let the judgment of the circuit court be affirmed.

The plaintiffs filed a petition for reconsideration; which was overruled.