
    ALBERT D. FILLEY, Plaintiff and Respondent, v. WINTHROP S. GILMAN, and Others, Defendants and Appellants.
    One Charles W. Johnson as the attorney of plaintiff and others, re-received from one John B. Caldwell a draft of one thousand four hundred and fifty-eight dollars and twenty-nine cents, made by the firm of Nolan & Weary, upon "the defendants at sight, payable to the order of plaintiff.
    Johnson indorsed the name of plaintiff upon the draft and sold the same to the firm of Warren, Hussey & Co., through their agent, Joseph A. Thatcher, receiving the value thereof in money from Thatcher, and delivering him the draft. At the time of the negotiation and sale of the draft by Johnson he exhibited to Thatcher Ms power of attorney, that he claimed contained authority to indorse and sell the draft, and Thatcher examined it. This power of attorney authorized Mm to receive from Caldwell certain moneys, and effects in his (Caldwell’s) hands, and under the same he had received this draft, payable to the order of plaintiff, but it con-Í tained no authority .to sell or to indorse the draft, or in any manner to change or exchange or dispose of the effects he received from Caldwell under the power.
    
      Meld, that the draft became and was the property of the plaintiff from the time the same was delivered to Johnson, and the power of the latter in reference to it was confined to the simple act of delivering or transmitting the same to the plaintiff.
    The indorsement being without authority, it passed no title, property or interest, in the same to Warren, Hussey & Co., and defendants were liable to pay the sum to the plaintiff.
    Written instruments creating a power must be strictly construed, and the authority therein given not extended beyond that clearly given in terms or beyond what is absolutely necesssary for the exercise of the power (Story on Agency, § 68).
    Before McCunn, Curtis, and Sedgwick, JJ.
    
      Decided March 30, 1872.
    Appeal from a judgment entered upon the report of a referee.
    The facts in the case appear in the opinion of the court.
    
      F. E. Mather, for respondent.
    
      John L. Cadwalader, for appellants.
   By the Court. — McCunn, J.

This action is brought by plaintiff, as payee, against defendants, as drawees and acceptors, to recover the amount of a draft for one. thousand four hundred and. fifty-eight dollars and twenty-nine cents. In July, 1867, George H. Filley,K brother of plaintiff, died in Montana, leaving property there ; also leaving in Connecticut, respondent and others, his brothers and sister. In October, 1867, the plaintiff with such others made an open letter of attorney to P. D. Barnhart, authorizing "him for them to have, demand and receive from any person or persons then holding, or who might thereafter hold any of the estate, money, property or effects, belonging to them or to.either of them, as heirs or heir at law of the late George H. Filley. This power authorized substitution. In May, 1868, Barnhart made a letter of substitution to Charles W. Johnson, in which he describes and “fully sets forth the business to be done” by Johnson. In September, 1868, plaintiff and others made another written instrument for the sole and exclusive protection of John B. Caldwell, administrator of the estate of George H. Filley. That instrument declared that if said Caldwell would pay to said Johnson, as the heirs’ attorney, the moneys and effects which have come to his hands as administrator belonging to the heirs of the estate of said George H. Filley, that they would release and discharge said Caldwell from all liability to them as heirs of said estate; and they authorized said Johnson as their attorney to demand and receive from said Caldwell, as such administrator, the moneys and effects of deceased. To this extent, and to this extent only, did they ratify the substitution of Johnson. On January 8, 1869, Johnson received for plaintiff the draft in dispute. On January 20, 1869, Johnson indorsed and sold said draft to Warren, Hussey & Co., through Joseph A. Thatcher, their agent." This Johnson had no right to do ; and Thatcher had no right to purchase it, because he, Thatcher, knew that Johnson was but a substitute under the letter of power, and that said letter of power limits the business to be done and performed by the attorney. March 31, 1869, defendants were informed that plaintiff claimed to be the rightful owner of said draft, and demand was made on the defendants that the draft or the amount thereof be paid. They refused, and this action is brought.

The only question in the case is, Had Johnson authority from Filley the plaintiff, to indorse the draft ?— and the evidence of any such authority in respect to said draft must be found, if anywhere, in the letter of power to Barnhart. Written instruments authorizing a power must be strictly construed, and this authority not extended beyond that given in terms or beyond what is absolutely necessary for carrying the authority given in terms into effect (Story on Agency, § 68). How the authority in this case is shown by Exhibit Ho. 1.

It was to act for him concerning a particular object, namely, “to have, demand andreceive from any person or persons now holding or who may hereafter hold any of the estate, moneys, property or effects, belonging to plaintiff as heir at law of the late George I~L Filley.” Such was the power given to Barnhart, and the instrument' substituting Johnson does not or could not express or imply any greater or different authority (Story on Agency, 120).

Johnson acquired no authority from Barnhart; he acquired it through Barnhart. Hence' Johnson’s authority could not exceed the authority of him who conferred it. Barnhart’s authority was special, namely, as the attorney for the principals, in their names to demand and receive their parts and shares of the estate of the deceased Greorge H. Filley; and clearly Johnson had no authority not given to Barnhart. In no case can general language be construed as authority to indorse a draft or make a note or draw checks (Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 144).

Thatcher saw the power in this case, and as between one dealing with an attorney as such and the principal, the former is chargeable with knowledge of the legal effect of the authority ; because he is presumed to have been on his guard and to have seen the power. This is is almost elementary learning (Horth River Bank v. Aymar, 3 Hill, 262, 276 ; Homer v. Tysen, Id. 279 ; Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 140, 144). Sale of Texasu bonds (Hodge v. Combs, 1 Black, 192, U. S. Court). Making a promissory note (Rossiter v. Rossiter, 8 Wend. 494). Accepting a bill of exchange (Hogg v. Smith, 1 Taunt. 347; Hay v. Goldsmith, Id. 349, 350 ; Murray v. East India Co., 5 B. & Ald. 204, 210, 211; Holtzinger v. Corn Exchange Bank, 1 Sweeney's S. C. 64). The Holtzinger case was argued in the court of appeals February 7, 1871, which court has affirmed the judgment of this court.

When defendants received said draft (February 2, 1869), and transferred the amount thereof from the credit of the drawees to the credit of Warren, Hussey & Co., the defendants accepted this draft and became liable to plaintiff.

Judgment affirmed, with costs.

Sedgwick, J. (concurring).

The proof shows that Howlan & Weary, for value, drew their bill of exchange on the defendants to the order of the plaintiff, and delivered it to the attorney of the plaintiff. Thereupon the plaintiff became the owner of the bill and entitled to its possession.

The attorney without authority indorsed the bill with the name of the plaintiff. The attorney then delivered it to third parties, and in time it was presented to the defendant for acceptance and payment. It may be true that the defendants had made no engagement or contract which bound them to the plaintiff to accept or pay it. Although not so bound, they were not authorized to use the plaintiff’s property for their own purposes. They paid the bill—it not being indorsed by the plaintiff, and used it, it must be concluded from the facts of the case, as a voucher to the drawers, that money had been paid by the defendants on their account. This was a conversion of the plaintiff’s property. This property was a bill, which was, before acceptance, an engagement by the drawers with the plaintiff, that the drawees would accept and pay the bill, and that, if they did not, he would pay it. The engagement was presumed and was proved to be of the value of the face of the bill.

That the defendants acted with entire honesty, there is no doubt, but they were bound, if they paid, to pay to no one but to the plaintiff or his order, and were bound not to take into their possession the plaintiff’s property in derogation of his title to it.

I therefore concur in the decision of the presiding judge.  