
    Julián et al., Plaintiffs and Appellants, v. McCormick et al., Defendants and Appellees.
    Appeal from the District Court of Guayama in an Action of Debt.
    No. 1575.
    Decided April 27, 1917.
    Power of Attorney — Death of Principal — Extinguishment of Power. — In this case, A, as attorney in fact of B, collected a sum of money due from C to B three months after the death of B. Three years later, but before the cause of action had prescribed, the heirs of B sued C to recover the debt. 0 alleged that he had paid the same in good faith and that he did not know of the death of B at the time. Held: That A was not authorized to collect the debt because the power of attorney was extinguished upon the death of B and that it was immaterial that the debtor was ignorant of the death of the principal.
    Id. — Personal Contract. — Death of Contracting Party — Extinguishment of Power — Ignorance.—A power of attorney is a personal contract and, pursuant to section 1634 of the Civil Code, is extinguished by the death of any of the contracting parties, the only exception of ignorance of this rule being that prescribed in section 1640 of the same code for the benefit of the attorney in fact and third persons who may have contracted with him in good ' faith.
    The facts are stated in the opinion.
    
      Mr. Manuel A. Martines Dávila for the appellants.
    
      Mr. Rafael Cintron for the appellees.
   Mr. Justice Wole

delivered the opinion of the court.

Lucas Julián was the attorney-in-fact of his mother, Gre-goria Rodriguez, in her lifetime. After her death he entered into negotiations with Juan Carlos McCormick for the payment of $2,000, owing by said' McCormick to said Gregoria Rodríguez and her children. McCormick paid the sum to the said Julián, who gave said McCormick a receipt in full therefor. The evidence shows that this payment was made about three months after the death of Gregoria Rodríguez and tends to show that McCormick did not know of her death. After three years, but before prescription had run against the claim, Cornelio Julián, in the name of himself and four minoi children, all heirs of Gregoria Rodriguez, brought suit to recover the sum of $1,633.33 and interest, excluding the share of Lucas Julián. "The latter was made a party defendant and the testimony tended to show that he had spent the whole sum in routs and high living.

We feel bound to agree with the appellant that the power of attorney in this case was revoked by the death of the granter. The ignorance of the debtor could make no difference. Section 1634 of the Civil Code provides that—

“Agency is terminated—
1st. By revocation.
2nd. By withdrawal of the agent.
3rd. By death, interdiction, bankruptcy, or insolvency, of the principal or of the agent,”

and Manresa says, volume 11, p. 575, of his Comentaries on the Civil Code (second edition), that—

“It has been frequently laid down by the Supreme Court, prior and subsequent to the promulgation of the Code, that the contract of. agency is of a personal nature and is extinguished from the moment that any of the contracting parties dies.” Judgment of the Supreme Court of November 9, 1875.

The only exception of ignorance is made in section 1640, as follows:

“What has been done by the agent, when he was not aware of the death of the principal, or of any of the causes which terminate the agentíy, shall be valid and of effect with regard to third persons who may have contracted with the agent in good faith.”

In this regard Manresa says, volume 11, p. 576 (second edition) :

“We have no doubt that the rule established by section 1738 is an exception to the general principles according to which the error under the law invalidates the consent, but it is justified, as well as many •others, by the principles of equity to prevent that the summum jus becomes the summa injuria. The efficacy of the power is a real legal fiction established by the law for the benefit of the agent and third persons in good faith and terminates once the agent and third persons are aware of the termination of the agency. If bad faith should be on the part of the agent and not by third persons, the former would be held responsible for the deceit and the latter would have a right to bring the proper action against him. ’ ’

It is a hardship for the appellee to he left to bring suit against Lucas Julián who deceived him, but it would also be a hardship on a principal or his heirs for an irresponsible agent to act when his agency has been revoked, either by death or -otherwise. The law gives the wronged, person an action against the person who wronged’ him. While the right of action may be illusory here the principle of law cannot be changed to favor special cases. The fact that Cornelio Julián waited three years may have been and probably was unconscionable and may have been to prevent a criminal action against his brother Lucas, but his decision to postpone the action was within his legal rights and there is no prescription alleged. Nor does it matter that the true owners of a part of the debt of $2,000 were the children, the complainants here. The mother made the power of attorney in her own name and in their names. She was the responsible person and authorized to do it, but her death extinguished her rúght to represent them and the .power, that emanated from her was extinguished or revoked.

We regret the situation of the appellee, but the heirs in this case, presumably innocent, are'protected by the law. The judgment must be reversed and one rendered for appellants, but without costs or counsel fees.

Reversed and substituted.

Chief Justice Hernández and - Justices del Toro, A1 drey and Hutchison concurred.  