not include the execution of a nonnegotiable note for the payment of a debt with a clause for attorney's fees on nonpayment.43 Power to an agent to act in a partition matter for his principal authorizes the execution of a note, if necessary for the transaction of the business.11 But, where an agent was put in charge of a tract of land with authority to advance money for the taxes, the principal is not liable on a note given by the agent in the principal's name for such taxes.* 45 So, an agent authorized to make advances on consignments and draw on his principal for the amount cannot draw against consignments made by himself. An agent may, however, draw in his own name upon his principal in execution of an authority "as my agent to make drafts on me."

947

Implication from Other Express Powers.

§ 358. It has been held, furthermore, that authority to accept a bill of exchange cannot be implied from an authority to pay it.48 Nor will authority to collect rents include the power to indorse a check payable to the principal received in payment for them, or to give a note for the employment of counsel in making such collection.50 Nor will power to collect a bill of exchange include power to sell it.51 So, an attorney at law receiving an overdue note

43 First Nat. Bank of Trenton v. Gay, 63 Mo. 33.

44 Layet v. Gano, 17 Ohio, 466.

45 Webber v. College, 23 Pick. (Mass.) 302.

46 Schimmelpennich v. Bayard, 1 Pet. 264.

46 Merchants' Bank of Canada v. Griswold, 72 N. Y. 472.

48 Gould v. Lead Co., 9 Cush. (Mass.) 338.

49 Robinson v. Bank, 86 N. Y. 407.

50 Layet v. Gano, 17 Ohio, 466.

51 Goodfellow v. Landis, 36 Mo. 168; Smith v. Johnson, 71 Mo. 382; Thompson v. Elliott, 73 Ill. 221; Padfield v. Green, 85 Ill. 529. So, too, in the case of a power to one joint payee to collect for the other. Ryhiner v. Feickert, 92 Ill. 305. And an agent to hold and collect a note for the payee has no authority to pledge or dispose of it after it becomes due. Templeton v. Poole, 59 Cal. 286. So, power to sell goods and take a note for the principal will not imply power to receive payment of the note after its delivery to the principal. Draper v. Rice, 56 Iowa, 114, 7 N. W. 524, 8 N. W. 797. So, an agent authorized to collect a note is not thereby authorized to give construction to a doubtful word in it so as to bind his principal. Vechten v. Smith, 59 Iowa, 173, 13 N. W. 94.

Van

But au

for collection is not thereby authorized to dispose of it.52 thority to transfer is an authority to indorse, where that is necessary.63

56

54

An authority given to an agent to sell a note will not include authority to bind the principal by a guaranty of it. Power to purchase goods and pay for them will not authorize the agent to give a bill or note in payment,55 or to accept a bill for the same purpose. So, authority to sell "for cash" will not authorize an agent to take a note in payment, and the principal may disavow the note and sue for the value of the goods.57 So, power to sell goods does not imply power to indorse a note received for them.58 So. power to receive money from a third person by drawing upon him does not authorize the agent to draw a bill payable to his own order on such third person.59

Construction of Express Powers.

§ 359. An authority "to do all acts in my name concerning certain operations" referred to, and to sign any "company articles,” will not render the principal liable on a note given by the agent."" So, where authority is given to an agent to make a note for a particular purpose, he has no authority to do so for any other purpose. Thus, if authorized to buy grain, and draw bills on his principal in payment, he cannot buy tobacco and bind his principal by bills drawn for that."2 Or, if authorized to draw a note for dis

61

62 Goodfellow v. Landis, 36 Mo. 168.

53 Mars v. Mars, 27 S. C. 132, 3 S. E. 60.

84 Graul v. Strutzel, 53 Iowa, 712, 6 N. W. 119.

56 Mills v. Carnly, 1 Bosw. (N. Y.) 159; Brown v. Parker, 7 Allen (Mass.) 337.

56 Gould v. Lead Co., 9 Cush. (Mass.) 338.

57 State of Wisconsin v. Torinus, 24 Minn. 332.

58 Bank of Hamburg v. Johnson, 3 Rich. (S. C.) 42. And power to receive a check is not power to collect it. Pickle v. Muse, 88 Tenn. 380, 12 S. W. 919. 59 Hogarth v. Wherley, L. R. 10 C. P. 530. So, authority in a corporation officer to sign warehouse receipts is not an authority to issue such receipts in his own favor. Hanover Nat. Bank of City of New York v. American Dock & Trust Co., 148 N. Y. 612, 43 N. E. 72.

60 Washburn v. Alden, 5 Cal. 463.

61 Nixon v. Palmer, 8 N. Y. 398.

62 Hopkins v. Blane, 1 Call (Va.) 361.

count to obtain a loan, he has no power to give a note for groceries purchased by himself so as to bind his principal.63

64

In like manner, if authorized to make a note payable at a particular bank and to it, he cannot give a note payable in any other way. Or, if authorized to give a note payable in six months, he cannot give a note payable sooner." 65 So, if authorized to draw a bill of exchange at four months, he cannot make it payable sooner, so as to bind his principal by antedating it." But it has been held that authority to renew a note in 60 or 90 days will cover the indorsement of a note payable in 88 days. And, if the authority designates the amount, a note for a larger sum will not bind the principal.68

67

§ 360. The acceptor of a bill by his acceptance admits the authority of the drawer as such, where the bill is drawn by an agent; but this does not include an admission of his authority to indorse, though the indorsement was on the bill at the time the acceptance was given.69 Where power is given to an agent to obtain discounts for his principal without restriction, power to indorse will be implied, but not power to pledge a bill as security for the individual debt of the agent.71

72

Under the same rule of strict construction it has been held that power to give a bond does not include a note,' or vice versa.73 So, power to give "any note or other instrument of writing" will not.

(Ky.) 82.

63 Hortons v. Townes, 6 Leigh (Va.) 47. 64 Morrison's Ex'r v. Taylor, 6 T. B. Mon. 65 Batty v. Carswell, 2 Johns. (N. Y.) 48. But see Adams v. Flanagan, 36 Vt. 412, where a 30-day note was considered an immaterial departure from a verbal authority for a 20-day note.

66 Tate v. Evans, 7 Mo. 419.

67 Bank of State of South Carolina v. Herbert, 4 McCord (S. C.) 89.

266.

Prescott v. Flinn, 9 Bing. 19.
Although on a previous trial of the

68 King v. Sparks, 77 Ga. 285, 1 S. E. 69 Robinson v. Yarrow, 7 Taunt. 455; 70 Fenn v. Harrison, 4 Term R. 177. same case, where indorsing appeared to have been expressly prohibited by the principal, he was not held liable. Id., 3 Term R. 757.

71 Foster v. Pearson, 1 Cromp., M. & R. 849, 5 Tyrw. 255. Notwithstanding any usage to the contrary. Id. As to this, however, see infra.

72 School Directors v. Sippy, 54 Ill. 287. But authority to make a mortgage

will include a note secured by it. Taylor v. Hudgins, 42 Tex. 244. 78 Mayor, etc., of Little Rock v. State Bank, 8 Ark. 227.

74

authorize a bill single. Power to purchase land and pay by draft on the principal will not authorize a note by the agent as his attorney.75 Power to give a check will not include a bill of exchange, or a postdated check," nor will such postdated check be covered by a power "to make, sign, indorse, and accept all checks, notes, drafts, and bills of exchange." 78 Authority to draw a "company note" will, however, cover a bill of exchange. But power to accept for the principal bills of exchange drawn by his agent or correspondent, it has been held, does not include acceptances on partnership account.80 Power to sign as surety will not authorize a note as principal maker.

81

79

Accommodation and Pledge-Not Included in General Powers.

§ 361. It is also to be observed that the general power to give a bill or note does not include accommodation paper; 82 although, if such accommodation paper were given by the agent with the principal's consent, and to take up other similar paper upon which he was liable, he would be bound.83

74 Alder v. Buckley, 1 Swan (Tenn.) 69.

75 Sage v. Sherman, Lalor, Supp. (N. Y.) 147.

76 Bank of Deer Lodge v. Hope Min. Co., 3 Mont. 146.

77 Forster v. Mackreth, L. R. 2 Exch. 163.

78 Nash v. Mitchell, 71 N. Y. 199, 3 Abb. N. C. 171.

79 Tripp v. Paper Co., 13 Pick. (Mass.) 291.

See, too, Bank

so Attwood v. Munnings, 7 Barn. & C. 278, 1 Man. & R. 78. of Bengal v. Macleod, 7 Moore, P. C. 35. So, an authority to draw drafts on a joint bank account will not authorize the acceptance of a bill drawn on both, although done in winding up their joint business. Odell v. Cormack, 19 Q. B. Div. 223.

81 Farmington Sav. Bank v. Buzzell, 61 N. H. 612.

82 Stainer v. Tysen, 3 Hill (N. Y.) 279; Sage v. Sherman, Lalor, Supp. (N. Y.) 147; Farmers' Bank v. Empire Stone-Dressing Co., 5 Bosw. (N. Y.) 275; Wallace v. Bank, 1 Ala. 565; German Nat. Bank v. Studley, 1 Mo. App. 260. So, for the debt of a third person, Boord v. Strauss (Fla.) 22 South. 713; or of the agent himself, Dowden v. Cryder, 55 N. J. Law, 329, 26 Atl. 941; or a check as corporation agent for his individual debt, Huil v. Allen, 87 Hun, 516, 34 N. Y. Supp. 577. But see, as to effect of representations by agent.

83 German Nat. Bank v. Studley, 1 Mo. App. 260.

Authority to "sell, indorse, and assign" a note will not include a transfer of it as collateral for the individual note of the agent which he has had discounted. 84 Nor, as we have seen, can an agent, authorized to discount his principal's paper, pledge it for his own. debt, or even for his principal; se although an exception seems to bave been made to this rule by the usage of London in favor of a broker pledging such paper, with other like paper of his principal, in order to effect the object desired by his principal.87

85

89

It has also been held that power to make and discount notes does not include the power to give renewals.88 Nor can an agent alter a note by changing the order of the indorsements upon it.89 And the fact of their being accommodation indorsements implies no power of alteration.90 So, it seems that a general power to draw bills of exchange is limited to the case where the principal has funds or credit in the drawee's hands to be drawn upon." This is true, at least, where the principal specifies, in the authority given, that such bills are to be drawn when he has an account to draw against.92

91

North River Bank v. Aymar, 3 Hill (N. Y.) 262; Kingsley v. Bank, 3 Yerg. (Tenn.) 107.

84 Bank of Bengal v. Macleod, 7 Moore, P. C. 35; Bank of Bengal v. F.gan, Id. 61.

85 Haynes v. Foster, 2 Cromp. & M. 237. Or for that of another. Ft. Dearborn Nat. Bank of Chicago v. Seymour (Minn.) 73 N. W. 724. And the burden of proving authority is on the pledgee. Norfolk Nat. Bank v. Nenow, 50 Neb. 429, 69 N. W. 936; Security Bank of Minnesota v. Kingsland, 5 N. D. 263, 65 N. W. 697.

86 Shaw v. Nail Co., 144 N. Y. 220, 39 N. E. 73, affirming 78 Hun, 7, 29 N. Y. Supp. 254. Or to give the guaranty of a corporate principal for a third person; the burden of proving such authority being on the holder. Dobson v. More, 164 Ill. 110, 45 N. E. 243.

87 Byles, Bills, 36; Foster v. Pearson, 1 Cromp., M. & R. 849, 5 Tyrw. 255. 88 Ward v. Bank, 7 T. B. Mon. (Ky.) 93.

89 Bark of South Carolina v. McWillie, 4 McCord (S. C.) 438.

Etna Nat. Bank v. Winchester, 43 Conn. 391.

91 Craighead v. Peterson, 10 Hun (N. Y.) 596; Crescent City Bank v. Hernandez, 25 La. Ann. 43; Stainback v. Read, 11 Grat. (Va.) 281.

92 Craighead v. Peterson, supra.

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