Pickard v. Brewer, 22 N.C. 428, 2 Dev. & Bat. Eq. 428 (1839)

Dec. 1839 · Supreme Court of North Carolina

22 N.C. 428, 2 Dev. & Bat. Eq. 428

ALEXANDER PICKARD et al. vs. THOMAS BREWER.

In a bill by a principal to have certain conveyances of land and slaves made by one purporting to act as his attorney, declared void, surrendered and cancelled for want of authority in the attorney to act for him, it is unimportant to the defence, whether the plaintiif made to the agenta formal letter or not, provided it sufficiently appear that he otherwise gave him authority to contract in his name for the conveyance of the land and slaves; though such a letter of attorney would be requisite to impart validi ty to the deeds, as legal instruments.

Any written, or even parol authority, to an agent to malre sale of slaves will be sufficient; because it is an act which may be done without deed, and, therefore, the authority to do it, may be without deed.

The fact of an authority having been conferred, and a formal letter of attorney made by a principal to his agent, for the purpose of submitting certain matters of controversy in relation to land and slaves to arbitration, and making conveyances pursuant to the award, held to be established upon the evidence furnished by the principal’s letters and declarations, and by other testimony contrary to the positive allegations of his bill, and notwithstanding the inability of the defendant to produce the letter of attorney.

The defendant residing in Orange county in this State, was entitled under the will of his lather to certain lands and slaves during his life, and at his death, they were to go in remainder to other persons; of whom the plaintiff, Mrs. Cates was one. The bill charged that the defendant, Brewer, had purchased the interests of the remaindermen, except Mrs. Cates; and that she and her husband, living in Tennessee, sold and conveyed all her part of the land and slaves to the other plaintiif, Alexander Pickard, who resided in Louisiana. The bill was filed in September, 1835; and charged that in 1828, after the sale and conveyance to the plaintiff, Pickard, the defendant sold, in absolute property, all the said negroes to slave traders, who carried them out of the Slate; whereby the rights of the remainderman would be defeated, and he disabled from getting the slaves upon the death of the tenant for life. The bill then charged, that the plaintiff Pickard, came into North Carolina, just before filing the bill, and applied to Brewer for payment of a reasonable price for his interest in the estates, or for security for the forthcoming of the negroes at the death of Brewer; and was then informed, that Brewer set up title to the land and slaves, under an award of certain arbitrators, to whom the controversy had been' submitted by the said Brew.er and the plaintiff, Alexander Pickard, through and by his attorney, Elijah Pickard, of Orange county, as alleged by the defendant; and that the award had been followed by deeds of conveyance, in execution thereof made in the name of the plaintiff, Alexander, by the said Elijah, as his attorney; so as to make Brewer, according to those deeds, the sole owner of the land and ne-groes.

Upon the existence of an authority, conferred by Alexander Pickard on Elijah Pickard, and on the extent of such authority, the whole controversy turned. As to which the bill charged, that the plaintiff never gave any authority to Elijah, to transfer or dispose of his interest in the property; or appointed him an agent in relation to the business. It was admitted, that the plaintiff once contemplated appointing him thereafter his attorney, regularly, by letter of attorney; and that on the 28th of July, 1832, he addressed a letter to Elijah, informing him that he would do so, as soon as he could have the power prepared, after Elijah should, in a reply, communicate his Christian name, if any other besides Elijah. It was also admitted, that the plaintiff, soon after-wards, caused to be forwarded to Elijah, the conveyances from Cates and wife, to the plaintiff. The bill then denied, that the plaintiff received from Elijah any reply to his letters; and stated, that having been in this uncertainty, until •the Spring of the year 1834, the plaintiff then wrote to a gentleman of the bar, of Orange county, (whom he named) and requested his attention to his interest; and that, in a reply, dated in July following, he learned, to his astonishment, that there had been an arbitration, by which the plaintiff’s claim was supposed to be adjusted. The bill then averred, that the plaintiff never did execute a letter of attorney to Elijah, in the premises; and that he did not intend, in and by his letter to Elijah, to appoint him his agent, to transfer, dispose of, or control his interest in the land and slaves, or submit his rights therein to arbitration; and that he, at no time, intended to confer any powers on Elijah, except-by the power of attorney, which he ha'd contemplated sending to him, as before mentioned: The bill denied that the plaintiff had received any money under the award, or in any way sanctioned it, or acknowledged the agency of Elijah Pickard.— The prayer was for a discovery of the names and values of the slaves, and in whose possession, and where they were: that the conveyances obtained from Elijah Pickard, might be declared void, surrendered and cancelled;, and that the defendant might be required to secure the delivery, at his death, of the proper share of the slaves and their increase, to the plaintiff.

The answer, after admitting the interest of the plaintiff, and the names and sales of the slaves, stated that Elijah Pickard, professing to be the agent of the plaintiff, proposed to sell to the defendant, the plaintiff’s interest in the land and slaves; and that not being able to agree on the price, it was, after the defendant was satisfied of Elijah’s authority, agreed between them, to refer the whole subject to the arbitrament of three persons: that as evidence of his agency, Elijah Pickard shewed to the defendant a power of attorney from the plaintiff to Elijah, to act for him in selling the land and slaves, or otherwise settling the controversy; and also shewed a letter from Alexander to him, of similar import, which created a full belief in the defendant, that Elijah Pickard was really the authorised agent of the plaintiff. The answer further stated, that the articles of submission were drawn by a gentleman of the bar, whom the plaintiff himself, by letter, as well as Elijah, as agent, had engaged to attend to the interests of the plaintiff; and that when the arbitrators met, (which was on the 17th of August, 1833J they inquired whether the said Elijah had authority to act for the plaintiff, and were informed, both by the said Elijah, and the counsel, that he had a full power of attorney, which wtys in the possession of one of them; and that thereupon the arbitrators heard the evidence, the parties and their counsel, and made their written award, that the defendant should pay the plaintiff the sum of $647, at certain days therein mentioned, and that upon such payments being made, proper conveyances should be made to Brewer “ to close all claims between them:” that the defendant accordingly paid the. sums as quired by the award, and that thereupon the said Elijah, the name of the plaintiff, executed the deeds to the defendant; to whom also, he promised to deliver the power of attorney, though he never did so. The answer admitted that the defendant was unable to produce the letter of attorney; but it insisted, that he ought nevertheless to have the benefit thereof, as it once existed; and that the letters from the plaintiff to the said Elijah, did, by themselves, contain a sufficient authority to contract for the sale of the land, and to sell the slaves, although it were insufficient to enable the agent tó execute deeds, and therefore, that the plaintiff could not have any relief in this suit.

To the answer the plaintiff replied, and the parties proceeded (o their proofs. The plaintiff took no proof of any material point. On the part of the defendant the articles of submission and the award, dated August 17th, 1833, were exhibited and proved; and they appeared to be to the effect stated in the answer; and also the receipts, on the award, of Elijah Pickard, for the sums.of money to be paid by the defendant under it.

The defendant did not exhibit a letter of attorney from the plaintiff to Elijah Pickard. But, to establish its existence, he proved and read in evidence three letters from the former to the latter, written from Louisiana. The first was that mentioned in the bill and answer, bearing date July 28th, 1832; in which the parts material to this question were as follows:

“ I have long intended writing to you, but have been waiting until I should get my papers.prepared, to appoint you my legal agent to transact that business with Mr. Brewer. I received a letter from Mr. R., saying, that if I would appoint you, you would attend to the same. Shortly after this information, I gave my papers to the parish Judge, who was to make out the power of attorney, send to the Governor and get his seal — all which seemed to be necessary — -and return them immediately. He has as yet neglected them. But, as I have just received a letter from D. Turner,” (another remainder-man,) “ who informs me that he has filed a bill, pray- that the property may be given up, or that we may have secur^y f°r same, at Brewer’s death, I have thought proper to write you immediately. The original transfer is in. ^6111168860! where I shall direct it on to you, as you will need it. I shall, as soon as possible, forward you the papers with unlimited power to act, so that you can sell or negotiate as you may think proper; as I am at such a distance, and an imperfect judge of the case, so that I shall leave it entirely with you. Write me immediately on receipt of this, giving me all the information you can. After seeing Mr. Turner, you will know what is the probable expense. Mr. Brewer, when he last wrote me, informed me that, if I would appoint an agent, and they could not agree, he was willing to leave it to referees; and as I am not disposed to incur cost unnecessarily, and this seems to be a fair way in the general of settling business, I informed him I should accede to his proposition; but of all these matters I leave you to judge, requesting you to settle it in the safest, cheapest and quickest way. would again say, write immediately, as I think you have a letter in your name that I do nQt recollect.”

The second letter was dated March 6th, 1834; and in it the plaintiff thus expressed himself on this subject:

£| I have waited long and in vain for a letter from you on the subject of my business with Mr. Brewer. I still feel very anxious to have that matter arranged, so that, if Brewer should drop off, I should be secured in the right of my property, or rather in the possession of the same. I have long since requested my friends in Tennessee to forward to you my title papers, which I hope they have done; and if they have, I would be glad you would consult a respectable attorney on the legality of the same, and also with regard to the power of attorney I must give, in order to enable you to prosecute immediately. If I mistake not, I informed you long since, in a letter that Mr. Brewer wrote to me, if I would appoint an agent, he would settle the matter with him; or, if they could not agree, leave it to disinterested men, and abide their verdict. I would be glad, on the receipt of this, you would proceed without delay; and give me all necessary information, and you shall immediately be empowered to proceed against him.”

The third bore date the 20th of November, 1834, and was as follows: °

“ Your favour of the 1st of October came duly to hand. I am sorry to add that I am somewhat dissatisfied with .the settlement of my business with Mr. Brewer. I am willing he. should have ample justice done him, but am unwilling that he should receive two thirds of my part of the estate. I was willing, and am still willing, to give him up the land, if he would give me up the negroes; all of which I have no doubt he can produce, except the oldest boy.

“ In this matter, I wish to be understood. If your compromise has been legal, I have nothing more to say on the subject. You state you have no doubt all my money would be ready when called for; and that $400 was due last fall? and the balance this.

“ On the receipt of this, I would be glad you would inform yourself ot these facts, as well as see Mr. N., (the. counsel,) whom I shall address by this mail; and then inform me of the result. Had my business been satisfactorily settled, I should have visited Orange again.”

The defendant also examined as witnesses Elijah Pickard; the counsel who was employed to conduct the business, and one of the arbitrators.

Mr. Pickard stated that, besides the letters already set forth, he received from the plaintiff at least two others on the subject of this controversy. Being asked whether he ever received the papers mentioned in the letters produced, and whether he was, by such papers constituted the plaintiff’s attorney in said matter? He replied that he did receive papers, which he believed to be those spoken of; and that, upon receiving them from the plaintiff, he referred them to the counsel spoken of, to know if they were competent to make him the legal attorney of Alexander Pickard; and was by him informed that they did. Being asked whether he delivered those papers to the defendant, or knew where the other letters were? he replied that he did not deliver them to the defendant, and that he did not know where they were, except that he was informed by his family, that when the plaintiff came into Orange, he had access to all the papers of the witness, during his absence from home; and that shortly afterwards the plaintiff himself informed the witness that he got all the letters he had written him on said controversy, and had left them with a person in the neighborhood. The witness stated further, that on the arbitration, his authority was enquir-ed for; and that the counsel replied that he was properly au-thorised to act; and the witness so believed himself to be.

The arbitrator stated that he could not distinctly recollect that the arbitrators asked respecting the authority of Elijah Pickard to represent the plaintiff; but he thought they did.

The professional gentleman stated that in 1833 he received a letter from the plaintiff, desiring him to act as his counsel in managing the claim against Brewer; and the plaintiff therein referred him to Elijah Pickard, whom, he said, he had appointed his agent, with full authority to settle the business, either by suit, arbitration or otherwise.- He was about filing a bill in Equity, when Elijah, the agent, informed him that he and the-defendant had agreed to submit the matters to three arbitrators; that the witness thereupon drew the submission and attended on behalf of the plaintiff before the arbitrators; who, after a full and fair investigation, made the award. He immediately wrote to the plaintiff the result. The witness afterwards received from the plaintiff another letter on the subject, in which he took no notice of the witness’s letter to him, although there was time for it to have arrived before the plaintiff last wrote; and in consequence thereof, the witness again communicated to the plaintiff what had been done. •

He further stated, that at the time of the arbitration, he was satisfied that Elijah Pickard had a regular and sufficient power of attorney from Alexander Pickard, to settle the business by arbitration; and that he was unable to account to himself how he could have suffered the business to be transacted, unless he had seen and examined it. Yet, he stated that he could not, at the time of his examination, recollect that he ever saw such a paper; nor that an enquiry was made of him for it by the arbitrators. He further stated, that about the time the bill in this case was filed, the plaintiff applied to the witness to rip up the settlement. The witness informed him that he must get somebody else to do it; for that the settlement was made by the plaintiff’s authority and direction, and the trial was fair and impartial, and the witness had been instrumental in making the settlement, and could have no hand in undoing it; and that to those remarks the plaintiff replied, “ that it was true he had authorised the settlement; and that he would have been perfectly satisfied with it, if the arbitrators had allowed a reasonable price for the negroes."

The witness finally stated, that he had made a thorough search amongst his papers for the letters between him and the plaintiff, and had been unable to find them.

W. A. Graham for the plaintiff.

Badger and Waddell for the defendant.

Ruffin, Chief Justice,

after stating the pleadings and proofs as above, proceeded as follows: For the purposes of the present suit, it is unimportant whether the plaintiff made to his agent, Elijah Pickard, a formal letter of attorney or not, provided it sufficiently appear that he otherwise gave him authority to contract in his name for the conveyance of the plaintiff’s interests in the land and slaves, or to submit the controversy to arbitration. To the deeds made to the defendant, a letter of attorney would be requisite to impart validity as legal instruments; and if the plaintiff were proceeding at law, there might be more difficulty in substantiating the defence. But the equity of the bill is fully answered by any written or even parol authority to make sale of the slaves; because that is an act which may be done without deed; and, therefore, the authority to do it may be conferred without deed.

The plaintiff’s letters, which remain and have been proved in the cause, create in themselves the competent power to do every thing but execute conveyances. It is a quibble on the terms found in parts of the letter of July, 1832, to say, as the bill does, that the plaintiff did not thereby confer any authority, but only expressed an intention to do so in futuro. The meaning on the other hand, is plain enough, that he thereby appointed Elijah Pickard his agent, as far as it could j3e done by letter; but that he had intended, and did then in-tend, to make that appointment in a manner the most formal, as soon as he could have the instrument prepared, whereby nSent w°uld have power to do every thing which his principal might; that is to say, fully complete, as well as enter into, an agreement. The very object of writing at that time, requires- this construction of the letter. Why did the plaintiff write “ immediately”? To let the other know that his purpose was to appoint him his attorney? Certainly not; for he says that a friend had informed him that the other would attend to the business as his agent; and moreover, he had his title papers sent to him forthwith. Then, the plaintiff wrote at that time, that he might have an agent upon the spot ready to act immediately for the preservation of his rights — to whom, for the purpose of meeting formal objections from the other side, he would remit an indisputable commission, delegating “ unlimited power” in express terms. But, the agent was not to await the arrival of that instrument, before doing any thing; for, besides similar expressions elsewhere, the letter, after mentioning the plaintiff’s acceding to Brewer’s proposition for a reference, adds, “but of all these matters I leave you to judge, requesting you to settle it in the safest, cheapest, and quickest way." ' These words import a preserit, and not a future purpose to constitute the a.gent; and that too, with the view'of a cheap and expeditious ■adjustment, instead of the more dilatory and expensive remedy by litigation.

But the Court is satisfied, from the evidence, that the power of attorney, on the want of which the bill so much insists, was in fact executed and sent by the plaintiff. • Why should it not have been? It is pretended that the plaintiff was not certain of the agent’s name. . But that cannot account for his waiting two years without further enquiry, and when he .seems to have been so anxious about his rights, and so fear-? ful of the loss of the slaves. In the next of the letters filed, there is no intimation that he had been prevented by that cause, from sending the power; nor that he had not received a reply to his first letter, accepting the proffered agency. It purports indeed to be written by one who was ignorant of what had been done in the businsss; and might have been designedly thus written, after the plaintiff had received advices from his ag.ent and counsel, which they gave him. But, the strong and conclusive circumstances are, that the agent swears that, besides those letters, he received two others at least, and under cover of them, papers, among which purported to be a power of attorney, which, when by him submitted to the respectable counsel employed by him, he was advised was a regular and sufficient power; and the counsel also swears that, although he cannot now remember examining or seeing such a paper, he was, at the time of transacting the business, satisfied that the agent had such authority; and he is sure that, if there had not been such an authority, he could not have suffered it to go on. Now, when to that testimony are added the facts, that the plaintiff had access to the agent’s papers in his absence, and by his own admission, took away some of the letters which he wrote, and still retains them; and that the letters thus suppressed, are those which, according to the course of the correspondence, would have enclosed the letter of attorney and particularly mentioned it, we are furnished with grounds of the strongest presumption against the plaintiff. That presumption is greatly fortified by other parts of the correspondence and the declarations of the plaintiff. In his first letter to his counsel, he stated that “ he had appointed Elijah Pickard his agent, with full authority to settle the business by suit, arbitration, or otherwise.” In the letter of the 20th November, 1834, in which he first admits the receipt of advice of the settlement, he firmly expresses his dissatisfaction therewith, and his wish to get rid of it; but he does not intimate a want of authority in those who acted for him, as aground fordoing so. On the contrary, he admits himself to be bound by the award, provided the arbitrators were sworn, and otherwise proceeded in the way which he supposed to be legal. Again: just before he commenced this litigation, the plaintiff explicitly admitted to the same counsel that he, the plaintiff, had authorised the settlement; and stated his objection to be to the 'sum allowed, and not to the want of authority. It may be safely assumed, "we think, that this admission never would have been retracted, but for the opportunity the plaintiff probably afterwards had, and used, for preventing the agency of Elijah Pickard being established by the production of the instrument which confen’e<^ iL At all events, the circumstances are of a character which compel the Court to conclude, that the plaintiff, by his deed and letter of attorney, in 1832, appointed Elijah Pickard his agent, with authority to do the several acts alleged in the pleadings to have been done by him, in the name of the plaintiff. The bill must, therefore, be dismissed with costs.

Per Curiam. Bill dismissed.