
    David W. Oliver v. Sterling & Ahrens.
    Where a foreign, creditor of a debtor who was on the eve of bankruptcy gave to his agent written authority to “ see ” the debtor “ in regard to ” the debt, with “ full authority to act for” the creditor “in the matter ”— Held, that the agent was authorized to receive from the debtor personal property in satisfaction of the debt.
    The Court does not err by refusing to give in charge to the jury a true proposition of law, which is foreign to the case, or which is stated in such form as might mislead the jury as to the evidence.
    Error to the superior court of Cincinnati.
    The original action, brought by Sterling & Ahrens against the sheriff of Hamilton county, was for the replevin of a lot of groceries, of the value of some $14,000, which had been levied upon as the property of Charles L. Moore & Co., of Cincinnati, at the suit of David W. Oliver. Subsequently Oliver was made defendant in place of the sheriff. Judgment was rendered for Sterling & Ahrens, and Oliver now seeks to reverse the same on the grounds that the court misdirected the jury, and that the verdict was contrary to the evidence.
    On the trial the title of Charles L. Moore & Co. to the property in question was admitted, and the evidence shows, that a few hours before the levy of Oliver’s execution, the property was sold by Moore & Co. to Ambrose A. White, acting as the agent of Sterling & Ahrens, of Baltimore, in part payment, and satisfaction of a debt due from Moore & Co. to Sterling & Ahrens; and the only real question made in the case was, whether this purchase was within the scope .of White’s authority as agent, there having been no ratification of the act of purchase until after the levy of the execution.
    The evidence relied on to prove White’s authority to make the purchase was White’s deposition, which stands unimpeached, and a letter therein referred to, which was also in evidence. That part of the deposition which it is necessary to notice is as follows :
    
      Ques. 8 (in chief). “ In this whole transaction, and in receiving the goods in bill marked Exhibit A, for whom were you acting and how ? ”
    
      Ans. “ I was acting for Sterling '& Ahrens, and had no personal interest in the matter. I was acting as the agent of Sterling & Ahrens, and was duly authorized by them to act .as such.”
    
      Ques. 1 (on cross-examination). “ Did you go to Cincinnati expressly to arrange the matter of the indebtedness of Moore & Co. to Sterling & Ahrens ? ”
    
      Ans. “Yes, I did. I went expressly to arrange this matter.”
    
      Ques. 2 (by same). “ Did you go in consequence of any information received by yourself or Sterling & Ahrens from Cincinnati ? ”
    
      Ans. “ Sterling & Ahrens received a letter from Moore & Co., on the day I started, inclosing five thousand dollars, and stating that they would remit the balance in a short time, and also stating that they were perfectly solvent and able to pay.”
    
      
      Ques. 3 (by same). “ Why did you go ? ”
    
      Ans. “ To get security and give them longer time to pay, •and to investigate the ease and see whether they were solvent or not.”
    
      Ques. 7 (by same). “ State the substance of what transpired at your first interview with Moore.
    
      Ans. “I showed him my authority from Sterling & Ahrens to act; the account, he accepted it; said the account •was just and true; that he was able to pay it, and would pay it; he told me what goods he had, what bills receivable he had; said that he would give them to me in payment of the .account, and I told him I would take them.”
    The letter referred to is as follows:
    “ Baltimore, January 18, 1867.
    Messrs. Charles L. Moore & Co., Cincinnati:
    “ Gentlemen : This will be handed you by our friend, A. A. White, Esq., who will see you in regard to bill of coffee due us, and has full authority to act for us in the matter.
    “ Respectfully, your obedient servants,
    “Sterling & Ahrens.”
    At the close of the evidence the counsel for Oliver asked •the court to instruct the jury: “ That authority to A. A. White from the plaintiffs to investigate the claim they held against Charles L. Moore,’ ‘ to arrange- the matter,’ to give time upon it,’ ‘ to collect it,’ and to obtain security for it,’ -did not include authority to buy the goods in controversy, and receive them in payment upon the claim of the plaintiffs.”
    This instruction the court refused, and, instead thereof, instructed the jury, among other things, as follows :
    “ The agent says himself he came to secure the debt, and what is the meaning of that word ? To make it safe. He would have a right to take a mortgage; and if he would have a right to take a mortgage which would transfer in a qualified form the title, he had a right to take the absolute <thing itself.”
    
      
      “ He says himself that he came to secure the debt, and that he was authorized to do that. If he came out to secure' the debt, no doubt he would be entitled to take a chattel mortgage or a real mortgage. If he had a right to take a chattel mortgage, he had a right to take the specific thing. If he had a right to secure the debt, he might have waivec that and taken the specific thing.”
    “ And the question arises: If he had not done this, would ho not have been responsible to his principals for neglect % The question comes up, and you cannot escape it. Suppose the agent had not taken this course; that he had delayed the matter another day; that there had been an offer made that he rejected, and in the mean time there had been a levy made, and that afterwards he should be sued for neglecting his duty, would it be a sufficient answer to say: I was not fully authorized.’ You must look to the purpose for which this agent came here, the object he was required to effect,, and then, under this power and the implied authority which follows, ask yourselves whether there was any transcending of power on his part; whether, if the agent had not done this very thing, he would not have been responsible ? The court does not hesitate to say he would have been.”
    To which refusal, and charge, as well as to the overruling of a motion for a new trial, predicated upon the alleged ground that the verdict was contrary to the evidence and law of the case, the counsel for Oliver excepted.
    
      W. Y. Gholson and Stallo & Kittredge for plaintiff in-error :
    If it is admitted, as it must be, that the question of the authority of the agent was a question of fact which it was the-province of the jury to pass upon, it must also be admitted) that the court left very little room to the jury for the exercise of their function. In truth, it can scarcely be denied that, in the last portion of the charge which we quote, the court altogether usurped the functions of the jury, and upon this' ground we ask that the judgment below should be reversed.
    We further submit, as a proposition of law, that authority to collect a debt, or to secure it, does not authorize an agent to take goods, or anything but money, in payment of it. A case upon this point, entirely similar in its facts, will be found-in Taylor v. Robinson, 14 Cal. R. 396.
    See also the following cases, where analogous questions are presented: Mills v. Carnly, 1 Bosw. 160; Rossiter v. Rossiter, 8 Wend. 494; Wood v. McCain, 7 Ala. 800; McAlpine v. Cassiday, 17 Tex. 449; Corning v. Strong, 1 Cart. Ind. 329; Kirk v. Hiatt, 2 Cart. Ind. 322; Union Bank v. Mott, 39 Barb. 180: Beals v. Allen, 18 Johns. 363; Brisbane v. Adams, 3 Comst. 129; Chilton v. Willford, 2 Wis. 1; Murray v. East India Company, 5 Barn. & Aid. 204; Catterall v. Hindle, 1 Law Rep. Series Com. Pleas, 188; Williams v. Evans, 1 Law Rep. Series Queen’s Bench, 352.
    The letter of introduction, which White speaks of as his authority, informs Moore that White came to Cincinnati “ to see about the bill of coffee, and had full authority to act in the matter.” Full authority to act in what matter ? In the purchase of real estate or personal property in Cincinnati? Not at all, but authority to act in the matter of that bill of coffee. Not that he could do everything that his principals could do about that bill if they were present. They could release it, if they chose, without exacting payment of it. They could have traded it, if they chose, to third parties for property or claims against other merchants. Certainly full authority to act in the matter of the bill of coffee does not, as matter of law, constitute White an agent to purchase real estate or merchandise for the bill of coffee, and impose upon his principals the duties and liabilities attaching to the ownership of it. Eull authority to act in the matter of the bill of coffee is full-authority to do any act in the collection or securing of the bill, which a general agent for that purpose could do, and nothing, more than that. And we think the authorities we cite show' that a general agency to collect or seawre a debt does not authorize the taking of goods in payment of it. See Weston v. Alley, 49 Maine, 94. Suppose the position of the parties tp be reversed, and that Sterling & Ahrens finding Moore & Co. to have been entirely solvent, and the purchase an inju dicious one, could they not, upon the evidence given of White’s authority, have disavowed that purchase as against Moore & Co. ?
    But the letter in question was not, and was not intended to be, an instrument conferring the authority which he had upon White. It was a mere letter of introduction, addressed to Moore & Co., and nothing more than an item of evidence proper to be submitted to the jury in determining the extent of the agent’s authority. The question of the authority of the agent was not at all submitted to the jury upon this evidence. But the jury were told that the authority of the agent to take security was broad enough to enable him to make the purchase. That is the error we complain of.
    
      Lincoln, ¿Smith, Wa/rnock do Stephens for defendants in error:
    We maintain that the' letter was full evidence to Moore & Go. that White had full and ample power to make the purchase on account of the indebtedness; that it was so understood by Moore and White, and could not fairly be understood in any other way; that it made White a general agent for Sterling & Ahrens in reference to the bill of coffee due them referred to therein, and is full confirmation of White’s statement of his authority.
    1. A person may be a general agent, though he does not ¡act upon or in reference to all the business of a party. If he have full powers, upon any particular subject or matter, he is a general agent in relation to that particular subject. Anderson v. Cornley, 21 Wend. 279; Story on Agency, sec. 18; Layet v. Gano, 17 Ohio, 473.
    This letter was sufficient evidence that White was constituted a general agent of Sterling & Ahrens in x-eference to this bill of coffee due; or, what amounts to the same thing, -axx agexit with general powers in reference thereto. That was its very purpose. It coxxferred on White full power to act in relation to that bill so due. It gave him, in relation- to that •matter, whatever power they could give — ail their power. After these goods were taken in payment by White and had been delivered to Sterling & Ahrens, they could not have repudiated the transaction. The letter would have been conclusive against them. Trickett v. Tomlinson, 13 Com. Bench, N. S. 666.
    2. White and Moore both understood this letter as giving White full power; and the particular thing which White did is known to every western lawyer to be a usual thing by parties who were thus sent on such missions, and by eastern creditors. We are certainly not to shut our eyes as to well-known modes of doing business of long existence.
    But we do not rely upon the nature of the transaction, and-the situation of the parties alone, as found in White’s deposition. After giving a particular account of the transaction, he says: “ In this matter I acted as the agent of Sterling & Ahrens, and was fully authorized to do so.”
    He is not anywhere cross-examined as to the extent of his-authority, or asked how he was authorized. He says he was, and so does the letter, in the most unqualified terms. That clearly is enough until something appears to the contrary; and there is nothing.
    3. But it is said the court erred in its charge, and especially in charging that if White could receive a mortgage he could-receive the thing mortgaged.
    It is entirely immaterial whether this be true or not, if the letter and deposition show full power. This is a mere abstract question; a part of the reasoning of the court against a • false position, and cannot affect the case, if the letter gave-full power to receive the goods in payment of this indebtedness. The court, under the circumstances, was right. The general drift of the charge is, that the letter and deposition - of White show power to do what was done.
    
      i. It is said that it was a question for the jury.
    But the construction of that letter was not a question for the jury. It was in wilting, and so was all the evidence upon-the subject.
    But, if this was true, the plaintiff in this case could not take advantage of it. They assumed to the court at the trial-that it was a question for the court, and asked the court tc. Charge that the evidence did not give such authority. Having thus assumed that it was the duty of the court to charge upon this point, they cannot complain that the court did do •so, if the charge was, in fact, correct.
    5. There was no error in refusing to charge as requested by plaintiff in error.
    
      Stallo & Kittredge, in reply, argued the following propositions:
    1. Authority to an agent “ to collect ” a debt, “ to obtain security for it,” “ to arrange it,” “ to give time upon it,” and “ to investigate it,” does not authorize the agent to buy goods in part payment of it.
    2. The acts of an agent without authority cannot defeat the rights of third parties acquired between the act of the agent and the ratification by the principal; — as the rights acquired by an execution levied on the property of a debtor after a sale by or to an unauthorized agent, before a ratification of the agent’s acts.
    3. The court below, by its charge in this case, withdrew the only question of fact involved, from the jury. The plaintiff in error was entitled to a trial by jury, and cannot by such means be deprived of it.
   Welch, J.

It seems to us that the letter from Sterling & Ahrens to Moore & Co., handed to the latter by White, sufficiently authorized him to make the purchase in question. It gives to White “ full authority ” to act for Sterling & Ahrens “ in regard ” to their claim. Words of authority, by rnn absent creditor to a present agent, in regard to any particular matter, could hardly be made broader. They seem to authorize any and all honá-fide acts of the agent which had relation to the debt, and which the principal himself could lawfully perform. Had it been the actual intention to include the power to cancel the debt in whole or in part, by compromise, by payment, or by satisfaction otherwise, at the discretion of the agent, it is difficult to see what other more .appropriate general language could have been used. The letter specifies no particular act or acts which the agent is .authorized to do in regard to the debt. If, for this i’eason, it must be held as giving no authority to take property in payment of the debt, for the same reason it must be held as giving no authority to accept payment of it in money, to cause it to be secured, or to do any other specific act in relation to it. Full ” authority to act “ in regard ” to the debt seems to us to authorize either, any, and all of these, or the like acts of the agent. The plain reading of the letter is, that the matter ” in regard to which the agent was authorized to act was the debt, the bill of coffee,” and not, as counsel assume, the securing of the debt. The letter equally omits to give specific authority to secure the debt, as it does to give specific authority to compromise, compound, or receive satisfaction of it in property.

If we are right in our construction of this letter there was no case here for a new trial, and the court did not err in overruling the motion therefor, irrespective of the testimony of White. That testimony, however, as we read it, only confirms the fact of authority appearing upon the face of the letter. White swears that he was, in fact, authorized to make the purchase.

It remains to inquire whether the court erred in its charge to the jury, or in its refusal to charge as requested, to the prejudice of the plaintiff in error. We think it did not. The proposition laid down by the court, that the power to take a mortgage includes the power to purchase, was a mere abstraction, and it is immaterial to inquire as tó its soundness. There was no evidence in the case tending to show specific or exclusive power to take a mortgage, or to take any other form of security. All the evidence tending to show any power in the agent to cause the debt to be secured, did so by tending to show a broader and more general power, which, among other things, might include the authority to take security. Whether, therefore, the single power to take security, had that alone been granted, would have authorized the purchase made by White, was wholly immaterial in the case.

The objection to the remark of the court, that White would, in the opinion of the court, have been liable to Sterling & Ahrens, had he not made the arrangement offered him,, and which he did make, we conceive also to be not well founded. We do not understand the court in this remark as-taking the case from the jury. In connection with what precedes it, the remark ought evidently to be understood in a hypothetical sense, that is, as a proposition of law arising in case the jury should find the existence of the letter, and. should credit the testimony of "White. In that sense the-proposition of the court was in our judgment sound and unobjectionable.

We think also that the court did not err in refusing the instruction asked, namely, that airthority to White to “ investigate ” the claim, to “ arrange ” it, to “ give time ” upon it,, to “ collect ” it, and to “ obtain security ” for it, “ did not include authority to take “ the goods in controversy ” in payment of the claim. A charge in that form might have misled the jury to believe that the court took it for granted there was no other authority proven in White, beyond that legally and technically imported by these words. The court was not asked to charge the general proposition, that authority to secure ” a debt, to arrange it, etc., does not authorize such a purchase ; nor was it asked to charge,‘hypothetically, that if -the jury should find that White had only such authority in the premises as was legally imported bj^ these-terms, they should find that the purchase of the goods was-unauthorized. It is asked, in effect at least, to charge that the .authority to White to arrange, secure, etc., did not authorize the purchase in question. What was, in fact, the extent of White’s authority was a question for the jury, and was to-be determined, not merely upon his cross-examination, where-alone these words, “ secure,” “arrange,” etc., are found, but as well upon his testimony in chief, where he asserts his full power in the premises, and also upon the letter of Sterling & Ahrens. It was for the jury to say whether White, in his-cross-examination, meant to be understood that his only purpose or arithority was to “ arrange ” the claim, “ secure it,” etc. It was also competent for the jury to interpret these-words of White’ found in his cross-examination, in the light of what he had said in chief, and of the letter, and to say whether he used them in their primary legal sense, and if' possible to assign a meaning to them which would make him consistent with himself, and harmonize the whole testimony. I know of no rule of law making it the duty of a. jury to take an isolated portion of a witness’s testimony, and assign to it the strict technical meaning of its particular words. The jury had a right, in view of all that White said'on the subject of his authority, to hold that he used the word. secure,” not in its primary legal sense, but in the sense of saving the debt, in which, I suppose, he actually did use the word.

We fail to see any error in the record to the prejudice of" the plaintiff in error.

The judgment will, therefore, be affirmed.

Scott, O.J., and White, Eat, and MoIlvaine, JJ'., concurred.  