
    Paul Layet and another vs. Daniel Gano.
    A power of attorney conferring authority to act in a particular transaction authorizes the agent to execute a note in the name of the principal if necessary for the performance of the agency.
    The agentmay execute a note jointly with others who have a common interest in the same subject matter, to pay the necessary expenses for the accomplishment of a common end.
    This is an action of Assumpsit reserved in Hamilton County.
    The declaration counts upon the following note •
    New Orleans, July 10th, 1839.
    $750.
    Sixty days after date we promise to pay Wigginton & Botts, or order, seven hundred and fifty dollars, for value received.
    Piatt & Athearn,
    John B. Craet,
    By his Attorney in fact,
    P. A. Athearn.
    James Blackman,
    Daniel Gano,
    Thomas H. Allen,
    By their Attorney in fact,
    James Blackman.
    The note is indorsed by Wigginton & Botts in blank.
    
      The plea is the general issue, with an affidavit of its truth, and notice of want and failure of consideration, and that note was past due when it came into the possession of the plaintiffs.
    The note was executed by Blackman, the Agent, in pursuance of the following power of attorney :
    “ Know all men by these presents, that we, Daniel Gano and Thomas H. Allen, of the city of Cincinnati, Hamilton county, Ohio, who are grantees in a certain mortgage, dated 7th December, 1838, granted by Lewis F. Blackman to said Daniel 'Gano, James Blackman and Thomas H. Allen on the equal and Undivided half of the Steamboat Renown, including tackle , and furniture, then navigating the Ohio and Mississippi rivers, now lying at New Orleans, Louisiana, which mortgage is recorded in Record Book No. 69, page 118, No. 4 Records of ■Hamilton county, Ohio, given to secure said Gano, J. Black-man and Allen against their liability as sureties for said Lewis Blackman on two several promissory notes of hand, each for $3,000, with interest, payable to Piatt & Athearn and J. B. Craft, or their order, on which notes there has been paid one thousand dollars, &c., as particularized in said mortgage, said notes being yet unpaid.
    Now therefore, we said Gano and Allen, reposing special confidence in said James Blackman, do for divers good causes us hereby moving constitute and appoint him, said James Black-man, of city of Cincinnati, Ohio, our and each of our true and lawful attorney in fact, to represent and act for us in all and every act, matter, plaint, suit or proceeding, either at law or otherwise, that has been or may be instituted, or become necessary to institute, do.or perform, touching said mortgage or may be rendered expedient and proper to be done to secure the lien and operation of said mortgage, or for such settlement of all matters growing out or touching the said mortgage, or to save the liability of said mortgagees on said security of said notes, and generally to do, act and perform for us fully every act that we could do therein, were we personally present, and attending thereto, and if needs be to appoint one or more attorneys under him, fully to carry the same into full and effectual execution. Here-ratifying and confirming whatsoever our said attorney may legally do in the premises.
    Daniel Gano,
    Thomas H. Allen.”
    There is a statement on file, made by.T. Walker, which was admitted in evidence, proving that Gano admitted the execution of the power of attorney, and of the note by the Agent, and that the note was given for professional services by Wigginton and Botts, as Attorneys, but claiming either that they had rendered no services, or that the sum was extortionate.
    The case was reserved for the decision in Bank of these questions:
    1. Whether under the power of attorney, Blackman had power to bind his principals in a note.
    2. Whether he . could execute a note jointly with others, which should bind his principals.
    
      Gholson Sf Miner, for Plaintiffs.
    This is an action of assumpsit by the indorsers against the makers of a promissory note. • The only defendant now setting up a defence is .Daniel Gano, and that defence is rested on the want of authority on the part of the agent who signed the note.
    The authority is contained in a .power of attorney authorizing the attorney to attend to the interest of the defendant in a certain Steamboat, giving full power to do any act necessary and proper to secure such interest, or to. make any settlement or adjustment in relation thereto. It appears from the séveral powers of attorney, under which the note was executed, and from the testimony, that all the parties to the note were interested in the same matter, and that the note was given for the professional services of counsel employed to attend to the business. The authority to employ 'counsel — to unite with the other parties interested in the employment of the same counsel— cannot be disputed. The only question is, as to the to give as evidence of the obligation for the payment of compensation to the counsel employed, a promissory note.
    The distinction between a general and special agent, has been often made, and it, is well setted, that the authority of the latter must be strictly purs ued. But it is equally clear, that “ the authority of the agent being-limited to a particular business does not make it special; it may be as general in regard to that, as if the range of it was unlimited.” Anderson v. Coonley, 21 Wend. 279-280.
    The distinction between an authority to act generally as agent, and a general authority to act in relation to a particular business, would seem to be, that, in the latter case, the party claiming the validity of any act done, would be bound to show that such act was done in the course or conduct of such business, or was connected therewith.
    The first inquiry, in this view of the case, is, whether the authority given under the power of attorney was, as to the particular business involved, general. Of this, on any fair construction of the terms of the instrument, there would seem to be no reasonable doubt. By the express terms of the power the agent stands in the place of his principal and may do whatever the latter could, in the usual and ordinary modesi of transacting the business ; Sandford v. Handy, 23 Wend. 260; Hunter v. Jameson, 6 Iredell L. 254.
    - In this case the business required- the aid of counsel, it might and probably did require the settlement and adjustment of other claims on the mortgaged property; to secure the payment of either it is usual, and often necessary, to give a bill or note. So as to the giving a. joint note by several ■ persons interested," they employ the same counsel, become jointly liable for the payment of his compensation, and jointly unite in a note as evidence of that liability. Nothing is more usual and generally beneficial to the parties.
    
      The remaining inquiry is, whether this note was executed by the agent in respect of a matter connected with his agency. This question depends on the evidence in the case, and it would seem clear from the powers of attorney and other testimony, that the note was given in consideration of the professional services of counsel rendered' in respect of the property in which all the parties' appear to have been interested.
    If there should be any doubt as to the authority of the agent on a construction of the power of attorney, the testimony shows a recognition of the validity of the note on the part of the defendant Gano, and is sufficient proof of an authority or ratification. When applied to for payment, he admitted the execution of the power of attorney and the execution of the note, and placed his refusal to pay on other grounds. This has been held in analogous cases a sufficient admission of liability. Campbell v. Webster, 2 Man. Gr. & Scott, 52 E. C. L. 258 ; Howard v. Baillie, 2 H. Bl. 618, 624, n. (a)
    An express promise is not wanted — that is found in the note; all that is required is proof of an authority to the agent who signed the name of the defendant to the note. Declarations are made by the defendant from which such an authority will be inferred, because, in all human probability, they would not have been made, had not such an authority existed. He who, to an application for payment of a note signed in his name by an agent, answers that the note was given, but for too large an amount, or for a consideration which has failed, and therefore he cannot pay, must be considered as admitting the authority to make the note ; for if there had been no authority, he would have said so, and have put his refusal on that ground.
    
      Morris, Rairden, and McMicken, for Defendant.
    The first question we present to the Court is, whether this letter of attorney authorizes the execution of the note by James Blackman for Daniel Gano, the defendant now before the Court.
    We contend that the power granted by this letter of attorney, is only to collect or secure a sum of money, or claim, which the signers had upon the steamboat Renown, and , • . „ . authority to collect, receive or secure money due, or to due to a party, cannot be construed into power to give a promissory note, or create a liability for such party.
    To authorize an agent to bind his principal, by a promissory note or other instrument of writing, specific authority for that purpose must be given, and without such specific authority, a promissory note given by an attorney in fact, or an agent, cannot be held binding upon the principal; and a power of attorney to secure, demand, &c., all sums, will not, whatever the general terms used may be, authorize a promissory note, (Story on Agency, 64, 5, 6, 68 and 73, and the authority must be construed strictly,) — and can only be applied to the object of creating the agency, or where the intention of the principal is found, by the language used, as to secure a debt, to receive money due, &c. It cannot be construed into a power to purchase goods, or give a promissory note; 7 B. and C. 268, 283, 284; 5 Bing. 442; 5 Vesey, Jr. 211; 7 Wend. 442; 8 Wend. 494 —• and no incidental power can give authority to the agent, under this power of attorney, to give this note; it is not one of the incidents coupled with his trust. Story on Agency, 87, 88, 90, 91, 92; the authorities referred to in the text would seem to settle the entire .question, and a judgment must be entered for the defendant.
    But should we not be correct in this view of the case, there yet remains the qustion whether, under this power of attorney, the agent could create a joint liability for Gano, and others with him. If the authority here given will be sufficient to give Blackman a right to execute a note for Gano, we contend that there can be no authority to create a joint liability of Gano, with Piatt and Athearn, and John B. Craft. This note appears to have been executed for a matter entirely different from that contemplated by the power of attorney offered in evidence.
    The note upon which this suit is brought, is the joint note, as would appear from its face, of Piatt and' Athearn, John B. Craft, by his attorney, James Blackman, Daniel Gano, by his attorney, and Thomas H. Allen, by his attorney. James Black-acting attorney, to secure a debt to Gano and Allen only— no power to create a liability. But whatever may be said as to authority to create a liability for himself, there certainly is no power granted to create a joint liability for himself and Piatt, Athearn, and. John B. Craft. Th'ere is no evidence that the whole of the debt for which this note is given, was not the entire debt of Piatt and Athearn, 'or of John B. Craft, or either one of them; and without any evidence, what can be said of the power granted — that authority to collect or secure money due may be construed to a power to create a debt, and give a promissory note for a sum due from third persons, with whom the principal has no connection, and having no interest in common with the principal. This power of attorney has been used to sign a joint promissory note, to which Piatt and Athearn, and John B. Craft are the first parties, how can we know for whose debt this note is given; and if this wide construction must prevail, how are we to distinguish between the debt of Piatt and A thearn, or that of any other party to the note, or of an entire stranger, to any matter in connection with this or any other transaction of business. We therefore say the power must be construed strictly, and refer to the same authorities above quoted.
    But say Gano is to be held liable on this note, what would be his liability upon any other note given under the same power, by Blackman ? Certainly Gano would be bound by any note, for any purpose, for which Blackman should see proper to give Cairo’s signature, whether it be the debt of himself, or a joint debt with others, or a debt of third persons. This certainly cannot be the law.
    But we hold again, that by power of attorney nothing can be binding upon the, maker but that which comes within the purview of the power itself, and that cannot be held within the meaning of a letter of attorney merely to collect a debt, which enlarges the present liability of the party. What, then, is the present case ? Gano gives authority to secure a claim for which he is security, and may become liable •; in this the attorney fails, and instead, undertakes to create a new liability for no — and this, too, for debts of others, and if even we admit a part of this debt is Gano’s, what evidence is there as to what amount? Nothing upon which the-Court can fix an item.
    Taking the whole case, then, we are .unable to see how Gano can be made liable on this note.
   Read, J.

Counsel have much to say about powers of attorney, and insist that the one in question does not authorize the execution of a note, although it might the payment of money, • and base their argument upon the distinctions which exist among the several sorts of powers.

Powers of attorney fall under four heads,.

1st. General powers unlimited, embracing the whole business of the principal.

2d. General powers limited to a branch of business of the principal.

3d. A general power to pérform a single transaction, not specifying the mode.

4th. A special power limited to the performance of a single act.

All powers are special when both the end and means are specified.

Where the power is general to perform, a resort to ordinary and usual methods or means comes within the scope of the power.

Where the power is special, limited to the performance of a single act, as to pay a sum of money or receive it, there is no power but to do the particular thing, for the act in such a case is not an end to be accomplished by a resort to means. But a power to accomplish a general end includes the means, unless specified. ,

The power under consideration is limited to a particular transaction, but general as to the means of performance.

It was to collect the amount secured upon the steamboat by mortgage. If the mortgager refused to pay, the attorney was authorized to bring suit. This involved the necessity of counsel, and the agent was authorized to employ them, and bind his principal for compensation for their services. It is said the agent should have paid them the money, this he might not have had ; he was not bound to advance it for his principal, and the execution of a note, binding the principal for such payment is not beyond his authority. In this instance-the express words of the power authorizes him to sue, or settle, or secure the amount and to employ attorneys. This confers upon him the full power to bind his principal for payment by executing a note, binding upon the principal, or by any other ordinary form of indebtedness.

The remaining question is, could the attorney bind Gano with the other parties named ?

It appears'that Gano, Allen and James Blackman were mortgagees upon half the steamboat mentioned, to secure them as sureties of Lewis F. Blackman for two several promissory notes for $3,000, payable to Piatt, Athearn and J. B. Croft.

Thus it appears that all the parties to the note were payees and sureties, with a mortgage to protect the sureties upon half the steamboat in question, seeking the same fund to satisfy the original liability, and were all bound together. Hence they might all become well bound jointly to pay the expenses of procuring payment out of the mortgaged property ; and would all have an interest in removing any liens or incumbrances which might stand in the way. Others thus having an interest in the subject matter, the attorney for Gano might.unite with them to pay the expenses of a common object. So far as the question of apportionment is concerned, it is between the parties themselves, and a question which we are not called upon to determine. Without any other proof, it would be equal between the joint makers. But the payees are-entitled to the full amount.

We are satisfied that the facts and the law authorize a judg" ment for the full amount of the note, with interest, for the plain-1 tiffs. Judgment for Plaintiffs.  