
    
      Jacob R. Valk v. C. L. Gaillard, adm’r.
    
    Where a promissory note is endorsed by an agent or attorney in the name of his principal, under an authority to endorse notes, that is not a sufficient authority for him to receive notice of the dishonor of the note; for an authority to endorse does not include an authority to receive notice of dishonor. Vide Story on Prom. Notes, sec. 309.
    
      Before Frost, J. at Anderson, Fall Term, 1848.
    This was an action of assumpsit, brought by Jacob R. Talk, the. plaintiff, as first endorsee and subsequent endorser, against C. L. Gaillard, administrator with the will annexed ox Samuel Warren, deceased, the first endorser of a note originally discounted at the Bank of the State of South Carolina, drawn by C. J. Steedman in favor oí Samuel Warren, or order, payable 30 days after date, dated 31st December, 1827, for $3000: endorsed Samuel Warren, per att’y., Charles J. Steedman, Jacob R. Talk and Charles J. Steedman; the amount of which note and interest was paid by the plaintiff to the Bank. The declaration contained the usual counts upon the note,-for money paid, laid out and expended, &c.
    The facts of the case will sufficiently appear from the special verdict found by the jury, which is as follows;
    
      “ We find in this case, that C. L. Gaillard is the administrator cum test, annexo of Samuel Warren, deceased: that the note sued on was the renewal of a note ■ originally discounted in the Bank of the State of South Carolina, between same parties; being a note drawn by Ch. J. Steedman in favor of Samuel Warren, or order, payable thirty days after date, at the Bank of the State of South Carolina, bearing date 31st December, 1827, for three thousand dollars, endorsed Samuel Warren, per. att’y. Charles J. Steedman,’ ‘Jacob R,. Valk’ and ‘Charles J. Steedman’: that this note was protested for non-payment by R. W. Cogdell, Not. Pub., 2d February, 1828; payment being demanded of ‘Ch. J. Steedman as drawer and as attorney of Samuel Warren, endorser,’ and by notice at house of J. TL. Valk, endorser, as appears from certificate of Notary. That suit was brought by the bank against this plaintiff as endorser on this note, and judgment obtained February, 1830, for amount of note; no defence being made. That suit was brought by the bank against Sam’l. Warren on same note, Term 183 The gen. issue and Statute of Limitations being pleaded, verdict was rendered for defendant, June, 1835. The case above having been called for trial and gone into the previous term, the presiding Judge held the notice insufficient to charge the defendant, and having declared his purpose to nonsuit plaintiff, the case, by consent, was permitted to stand over for further investigation. ■ That in consequence of the judgment against the plaintiff, after an unsuccessful attempt in chancery to.enjoin its collection, the plaintiff paid in its satisfaction, on the eleventh day of March, 1842, the sum of five thousand nine hundred and forty dollars, being the amount of the note and interest. This defendant has pleaded gen. issue, Statute of Limitations and plea of plene administravit prceter: that the writ issued 6th February, 1846. If, on this statement of facts, the Court should be of opinion that the plaintiff is entitled to a verdict, then we find for the plaintiff five thousand nine hundred and forty dollars, with interest on three thousand dollars from 11th March, 1842, subject to the plea of ple-ne administravit prceter; otherwise we find for the defendant.”
    Upon this finding of the jury, his Honor, the presiding judge, ordered the postea to the defendant.
    The plaintiff appealed.
    1. Because the money having been paid by the plaintiff as second endorser, and the defendant’s testator being the first endorser, the plaintiff was entitled to recover upon the note, and as for so much money paid, laid out and expended for the use of defendant’s testator.
    2. Because the plaintiff having paid the money on the eleventh day of March, 1842, and this suit having been com-» menced on the sixth day of February, 1846, the Statute of Limitations could not protect the defendant.
    3. Because the notice to the attorney of Samuel Warren, defendant’s testator, was sufficient to charge him in this action by the plaintiff as second endorser.
    4. Because, upon the special verdict of the jury, the plaintiff was entitled to the postea, and the order of the presiding Judge was against the law and the facts found.
    
      Young, for the motion.
    
      Whitner, contra.
   Curia, per Frost, J.

It is not found by the special verdict,- but it has been admitted in the argument of the case, that when Steedman endorsed the name of Stamuel Warren, he acted under a formal power of attorney, which was deposited with the bank, whereby Warren constituted Steedman his attorney, “ for him and in his name to make, sign, draw and endorse all promissory notes and drafts which may be offered for discount at the Bank of the State of South Carolina, and all renetvals thereof; and to draw all monies, at any time standing to his credit on the books of the said Bank ; with power also an attorney or attorneys under him, for that purpose, to make and substitute ; and to do all lawful acts for effecting the premises; and ratifying and confirming all that his said attorney or his substitute shall do therein, by virtue of this power.”

The only question that will be considered is, whether under this power Steedman was authorized to receive for Warren, notice of the non-payment of the note.

The power conferred a special agency with respect to notes and drafts, to be discounted in the Bank, that Steedman should make and endorse them. In Atwood v. Munnings, Bay ley, J. says powers of attorney are instruments to strictly construed. Formal instruments of this sort (powers of attorney) are ordinarily subjected to a strict interpretation, and the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given, into full effect.” Language, however general its form, when used in connexion with a particular subject matter, will be presumed to be used in subordination to that matter; and therefore it is to be construed and limited accordingly ; and it will make no difference that this general language is found- in very formal instruments, as a letter of attorney.”

An agency to endorse is a very different thing from an agency to receive notice. By endorsement a conditional liability is contracted ; and by the acceptance of notice the liability is made absolute. Convenience may require the appointment of an attorney to endorse, which may not require an attorney to receive notice. No person employs an agent to do that which he can, as conveniently, do himself. In the construction of a doubtful power, it should be presumed that it is not the intention of the grantor to confer an agency in ' particulars for which it is not necessary. It is not necessary nor incident to a power to endorse that the agent should be authorized to receive notice of the dishonor of the bill or nonpayment of the note. It is important to the endorser that the holder should perform to him, personally, the condition which fixes his liability. It is his right to enforce a strict fulfilment of the terms of his contract. He is interested that the timely caution to protect himself which is secured to him from the holder, should not be prevented or delayed by the possible neglect of another. He alone can take the measures necessary for his indemnity when the first party makes default. An agent to receive notice is inefficient for any of these purposes, which make the receiving of it so important to the endorser, and the giving of it so imperative on the holder ; unless, indeed, with the power to receive notice, is also implied a power to do whatever the principal might himself do, if notice were given to him. Such an agent has no power to protect his principal, and can only be instrumental to his liability. When an agency is conferred to endorse notes, the presumption must be altogether against the intention to include in that agency, authority to receive notice. If an obligation be executed, by an attorney, by which the obligor binds himself that if a certain person does not, on demand, on a day stated, pay a certain sum of money to the obligee, and in case of non-payment, if the obligee give to the obligor notice thereof, within one month after such such default, that the obligor will pay to the obligee the said sum of money, it is clear that the notice to charge the obligor cannot be given to the attorney. The liability created by an endorsement is nearly coincident with the condition of the supposed obligation. The powers of attorney by which these respective liabilities may bve created, cannot be distinguished. If the powers are granted in equivalent terms, the construction of both must be the same. The usage and custom of Banks cannot vary the decision. The meaning and effect of a deed, and of every written contract, is a question of law. Parol evidence nor extraneous circumstances cannot be admitted to vary or explain the literal import. While the same words express the same thing, if the attorney cannot receive notice for the obligor, neither can he for the endorser.

In Story on Promissory Notes, the law is stated t,o be, that when a promissory note is endorsed by an agent or attorney, in the name of his principal, under an authority to endorse notes, that is not a sufficient authority for him to receive notice of the dishonor of a note ; for an authority to endorse does not include an authority to receive notice of dishonor. Bay-ley on bills, 274, is an authority to the same effect. In Louisiana it was held that if an attorney in fact has no special power to receive notice, notice of a protest cannot properly be given to him. To the same effect is Montillet v. Duncan, in which the’rule applied was, that strict proof is required of the authority of a third person to receive notice in behalf of an' endorser. And in Wilcox v. Routh, while the power of attorney in that case was by a majority of the court held sufficient, Sharkie, C. J. who delivered the'opinion of the Court, referring to the citation from Bayley on Bills, admits that the authority to endorse notes does not carry with it a power to receive notice. He adds, that cannot be questioned. Such a power is special and confines the agent to the single act.

Against these authorities is to be found only the intimation of an opinion to the contrary by Lord Tenterden in Frith v. Thrush. He says, “it struck me at the trial that as Major was the agent for the purpose of endorsing the bill, he was also agent for the purpose of receiving notice of the dishonor. I still incline to be of that opinion.” The case was decided on other evidence of notice.

The motion is refused.

The whole Court concurred.

Motion refused.  