068-NLR-NLR-V-06-MUTTIAH-CHETTY-v.KARUPAIYA-KANKANI.pdf
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MUTTIAH CHETTY v. KARUPAIYA KANKANI.D. C„ Kandy, U,376.
1903.
March 30.
Principal and agent—Authority of one of two agents appointed by power ofattorney to carry on the business of the principal—Validity of promissorynote signed by one agent.
Where an authority is given to two or more persons to do an act, theact is valid to bind the principal only when all of them concur in doingit, for the authority is construed strictly, and the power is construed tobe joint and not several.
It makes no difference to the rule that the words in the power namedA B and C D, “my true and lawful attorney and attorneys." Thereforea promissory note endorsed by only A B, under such a power, does notbind the principal.
A
CTION on a promissory note made by one Arumugam infavour of Karupaiya Kankani, the defendant, who endorsed
the same to the plaintiff.
On the back of the note appeared the following endorsement: —“ Per pro V. E. K. R. Karupaiya Kankani; Suppiah. ”
It appeared that Karupaiya Kankani, being about to leave theIsland, signed a power of attorney in the following terms:—“ I dohereby constitute and appoint V. E. K. R. Vellasamy and V. E. K. R.Suppiah my true and lawful attorney and attorneys in Ceylonduring my absence therefrom, to act for me and on my behalf forall and each and every or any of the following purposes:
to purchase for me any estates or lands which my said
attorneys shall think fit and proper ; to invest the moneys
which belong to me upon such security as my said attorneys shall
consider good and sufficient ; to sign, make, and endorse and
accept bills of exchange and promissory notes, and perform allthings whatsoever which my attorneys may think necessaryconcerning my business, lands, houses, debts, or affairs as fullyand effectually as I myself could do, it being my intent that allmatters respecting the same shall be under the full managementof my said attorneys.
As Suppiah was the only attorney of -the defendant whoendorsed over the note to the plaintiff, the issue agreed to at thetrial was, whether the two persons 1 appointed as attorneys wereempowered to act jointly or severally.
The District Judge (Mr. J. H. de Saram) held as foUows: —
“ The appointment is of Vellasamy and Suppiah, ‘ my true andlawful attorney and attorneys; ’ that is to say, each is appointedattorney separately and can act separately. The words relied on
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for the defendant, ‘ my said attorneys shall think fit and proper r
‘ my said attorneys shall consider good and sufficient ’
‘ my said attorneys shall or may think necessary or proper to be
done ’will not control the effect of the operative part, which
is the appointment. These words do not appear in the clauserelating to promissory notes. The distinction in the wording:supports the contention for the plaintiffs. I am of opinion that theappointment of the attorneys is joint and several. I give theplaintiff judgment as prayed. ”
Defendant appealed.
Bawa, for appellant.
30th March, 1903. Layabd, C.J.—
The plaintiff sued as holder of a promissory note made by oneK. Arumukan in favour of the defendant. It was endorsed byone Suppiah purporting to act as attorney of the defendant, anddelivered by him to the plaintiff. The defendant, on the 3rdApril, 1900, by an instrument bearing that date, appointed two-attorneys, one of whom was Suppiah, and gave them authorityamongst other things to endorse promissory notes. The endorse-ment of the promissory note sued on by Suppiah is admitted.The contention for defendant is, that the endorsement did not bindthe defendant, because Suppiah’s co-attorney did not also signthe endorsement. The District Judge has decided that under theinstrument dated the 3rd April Suppiah and his attorney wereappointed jointly and severally the attorneys of the defendant,and that consequently Suppiah’s endorsement bound the defend-ant. The defendant appeals, and contends that the constructionput upon the power of attorney by the District Judge is erroneous,and that he is wrong in holding that Suppiah and his co-attorneyVellasamy were each empowered under it to act separately, andhis counsel argues that .they could only act jointly. As a generalrule, where an authority is given to two or more persons to do anact, the act is valid to bind the principal only where all of themconcur in doing it, for the authority is construed strictly, and thepower is understood to be joint and not several. Browne ®-Andrew (18 L. J. Q. B. 153) shows that, where an authority isgiven to more than one person, there must be express words beforeany smaller number than the whole number of the agents orattorneys appointed can act.
If, however, a power is given to three or four, persons jointly andseverally to act as they or any of them shall jointly and severallythink proper, it has been construed that the power is given to all
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or any of them to act as all, or any of them shall think proper.Guthrie v. Armstrong (5 B. and Aid, 688).
The District Judge in his judgment very properly holds that inconstruing the power of attorney the effect of the operative.parts shall be given its full construction. When two persons areappointed to act jointly and severally the operative Words in theordinary form of power of attorney in general use runs as fol-lows:—“I, the said A, do hereby appoint B and C and each ofthem jointly and severally my true and lawful attorney andattorneys, ” Ac. The important words “ each. of them ” and" jointly and severally ” are wanting in the instrument underconsideration.
Still, it may be that the words used were intended to confer jointand several authority to Suppiah and Vellasamy to act for and onbehalf of the defendant, so I will examine carefully the actualwords used in the instrument under consideration. The words are“ do hereby appoint Y. E. K. R. Vellasamy and V. E. K. R. Suppiahof Ramboda my true and lawful attorney and attorneys. ” TheJudge says that this means each is appointed and can act separately.I do not agree with him, for it appears to me that if the words“ and attorneys ” had been left out, the general rule would apply,and both attorneys would have to concur, there being no expresswords that either of them could act alone as the defendant’sattorney. The same rule of construction would apply if the words" attorney and ” had been left out. I fail to see that when the twowords “ attorney ” and “ attorneys ” are used conjunctively, anydifferent construction can be placed on them than if they occurredseparately. Reading the whole of the instrument, it is noticeablethat the expression “ attorneys ” occurs five times in such Contextsas “as my attorneys shall think fit,’’ and in no case do the wordsrun " as my attorney or either of them shall think fit.” Further,the general power to manage, control, and direct the defendant’sbusiness is specially restricted^ to the attorneys jointly, for noexpress words occur enabling one of them to manage, control, anddirect that business, and the general authority ratifying acts doneunder the power, before notice of the death of the defendant hasreached the attorneys, is limited to acts done by the attorneys, andis not extended to an act done by one of them. Whether I look atthe operative words of the instrument alone or the whole of theinstrument, I come to the same conclusion, viz., that it contains noexpress words enabling one of the attorneys to act alone.
Since I wrote the above my attention has been drawn byMr. Advocate H. .J. G. Pereira (who appears for the respondent inanother case on to-day’s list, in which this Court has to decide as
1903.
Manh 30. *'I/ATABD, CJ.
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1003. to the construction of a power of attorney similar to the one inMarch 30. this case) to the authority of Lindsay v. The Oriental Bank Corpo-Layabd.C.J. ration (1 Lorenz, 108), in which the Collective Court held that,when two persons were appointed “ attorneys and attorney ” toprosecute an action to a final determination, a petition of appealwhich was Bigned by one only of them could not be received,as the use of the words “ attorneys and attorney ” restricted theattorneys to acting jointly, and did not authorize them to actseparately. I am much indebted to Mr. Pereira for pointing outthis previous decision of the Collective Court. Had it decidedotherwise, I should have been bound to follow it. As, however,it concurs with the views above expressed by me, I have nohesitation in setting aside the judgment of the District Judge. Theappellant is entitled to his costs in both Courts.
Moncreiff, J.—
If the matter upon which this appeal hinges had been open fordiscussion I should have been disposed to entertain some doubtsas to the correctness of the argument of the appellant. As, how-ever, the matter has been dealt with by the Collective Court, wehave no course but to assent to the order of the Chief Justice.
Wendt, J.—
I am of the same opinion. The rule laid down in Story onAgency, section 42, is that “ where an authority is given to two ormore persons to do an act, the act is valid to bind the principalonly .when all of them concur in doing it, for the authority isconstrued strictly and the power is understood to be joint and notseveral; ” and the case of Lindsay v. The Oriental Bank Corpora*tion. which has been cited today, establishes that it makes nodifference, to the rule that the words in the power named A B andC D “my true and lawful attorney and attorneys, ” which is theform used in this case.
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