068-NLR-NLR-V-18-SINNATAMBY-v.-JOHNPULLE-et-al.pdf
( 245 )
Present: Laseelles C.J. and Ennis J.
SINNATAMBT n. JOHNPULLE et al170—D. C. Colombo, 37,098.
Power ofattorney—Agentauthorized toeignprincipal's name—Agent
signing his napis.
Thefirstdefendant,by his powerofattorney, authorized C,
" in the event of any sale, mortgage, lease, exchange, or purchasefor me and in my name, and as my act and deed, to sign, execute,&©., all deeds and other writings necessary -for giving dffect andvaliditytothe samerespectively, . ortoany contract, agreement,
or promise for effecting the same.**
Held,thata deed executed by C inhisown name, and not by
the first defendant by his attorney (C) did not bind the firstdefendant.
A
PPEAL from a judgment of the District Judge of Colombo(H. A. Loos, Esq.). The facts are set out in the judgment.
The'deed in question ran as follows:—
I, John Saviel Cassie Chetty, the attorney of Emanuel Erancis JusyJohnpulle, duly appointed by Power of Attorney No. ■ .—■■■ .
(Signed) Jobs Ravte/j Cassie Cram.
Bawa, K.C., for the plaintiff, appellant.—The attorney has usedsuch words in the agreement as show that he is acting solely as theagent of the first defendant.
The attorney, it is submitted, has executed the agreement in thename of his principal, for there is no difference between “ E. F. J.by his attorney J; S. C.” and ” J. S. C. for E. F. J." Wilke v. Bathe.1
Under the English Conveyancing Act of 1881 (44 and 45 Viet., c. 41,section 46) an attorney can execute a deed in his own name, andthat would bind his principal. This would apply, as our law ofagency is English law.
The words of the power are “ to act for me and in my name orotherwise.” The attorney here has acted " otherwise,” as he isauthorized to do.
/
The power to execute a deed need not necessarily be in , writing,and the attorney's power to act could have been proved by parolevidence. Meera Saibo v. Paulo Silva,* Grey A Co. v. Arabia *
Grenier, K.C. (with him Betnam), for defendant, respondent.—Theattorney, to make his principal liable, should execute the deed andsign it ir the name of the principal. Fontin v? Small,4 Berhly v.Hardy,* Story on Agency 68
1 2 Bast. 142.2 4 N. L. B. 281,2 Bam. 48-85, 108.
1 Strange 705.s 5 B. 2 C. 355.
1914.
( 246 )
i
1914.
i
Sinnatane. Johnp
An agent making a deed in his own name, the conveyance is void.It will make no difference that in the deed the agent describedhimself as such. If he says “ Know all men by these presents thatT, A. 13., as agent of G. D.t do hereby grant and convey,” or if hesigns it “ A. B. for C. D.,'* in such a case it is still his own deed, andnot the deed of his principal. Story on Agency, 175 and 176.
All such deeds are absolutely void, and not good even by estoppelagainst the attorney. Siory on Agency, 179, note.
The words “ or otherwise ’* cannot have the extended meaningcontended for, for where there is a power to do a particular act,followed by general words, the general words are not to extendbeyond what is necessary for doing the particular act. Perry v.Hole,1
Powers of attorney should be strictly construed. Attwood v.Manning,- Jacobs v. Morris,* TJduma Lebbe v, Uduma Lebbe.4
Weinman (with him Tisseverasinghe), for second defendant,respondent.—Section 46 of the Conveyancing Act does^not applyto the case, as there i6 no authority of the donor of the power tothe donee to execute the agreement in his own name us required bythat section.
The appellant having gone to' trial on the written power ofattorney cannot be permitted to fall back on a parol power.
Cur. adv. vvlt.
June 19, 1914. Lascejxes C.J.—
The plaintiff sues the first defendant on an agreement by whichthe first defendant is alleged to have undertaken, in considerationof a loan of Be. 600 from the plaintiff, to lease certain property tothe plaintiff, either at the expiration of the subsisting leases ofthe premises or when those leases had been determined by orderof Court. The plaintiff alleges that the first defendant, insteadof carrying out the agreement, has leased them to the seconddefehdant. The action is for the penalty of Its. 3,000 reserved bythe agreement, for the return of the Bs. 500 alleged to have beenadvanced, or for cancellation of the lease in favour of the defendantand for a lease to the plaintiff, and repayment of the Bs. 500.
The first defendant's answer pleads that the plaintiff obtained theagreement sued on by fraud in collusion with one Cassie Chetty.The suggestion is that Cassie Chetty, in collusion with the plaintiff,obtained the first defendant’s signature to a power of attorney,representing the power of attorney to be a document of a differentnature', and that the agreement sued on was /fraudulently executedby Cassie Chetty on the first defendant s behalf.v
i 29 L. J. Ck. 677.3 7 B. (C C. 278,
*(1902) 1 Ch. 816.
(1912) 16 N. L. B. 29.
( 247 )
The following ten issues were agreed to by the parties, namely: —(1) Was the power of attorney (marked B) granted under thecircumstances set out in paragraphs (51 (a) and 5 (f>.) infirst defendant’s answer?
r J) Was tiie indenture sued upon exeouted in the circumstancesset out in paragraphs 5 (c) and 5 (d) of the first defendant’sanswer ?
Is the agreement sued upon illegal on .the ground that it is
champertuous ?
Is plaintiff entitled to claim specific performance ?
> ; Was there a breach of the conditions, of the indentureNo. 1,944 ?
. j) If so, what damages has plaintiff sustained thereby ?
Was the sum of Bs. 500 paid to the first defendant or on his
account! V
If not, is the failure on the part of the plaintiff to pay to the
first defendant the sum of Bs. 500 as agreed upon in theindenture sued upon fatal to plaintiff's claim V
Was .the second defendant guilty of fraud in accepting the lease
in Ills favour ?
Is the plaintiff entitled to get the lease in favour of the second
defendant set aside ?
Subsequently, on March 11, 1914, the following three furtherissues were added, namely : —
s ll ) Did the power of attorney authorise the attorney to bind thefirst defendant to enter into the deed No. 1,944 subjectingtiie first defendant to the penalty of Bs. 3,000 ?
Is the agreement No. 1,944 a valid agreement and binding
on the first defendant ? Was it validly executed by thefirst defendant by his attorney ?
Does the plaint disclose a cause of action against the second
defendant ?
Later, a further issue, No. 14,.was added in the following terms: —
Even if the issues Nos. 11 and 12 are answered in favour of
the defendants, are .the defendants estopped from denyingthe validity of the said agreement No. 1,944 ?
On April 7, 1914, the case went for trial, apparently with thei-.. .nsent- of the parties, on issues 11, 12 and 14, these issues beingtreated as preliminary issues. No evidence was called. Counseladdressed the Court on these issues, and also on issue 13, with regardto the second defendant’s liability.
On issue Bo. 11 the Judge held that the power of attorney “ B ”txi-cuted by the first defendant in favour of Casaie Chetty did notauthorize the latter .to enter into the deed No.' 1,944 subjecting thefirst defendant to the penalty of Bs. 3,000.
There can, I think, be no doubt of the correctness of this decision.There is nothing in the power of attorney which could reasonablybe construed as giving the power. The District Judge further
1914.
LaB0KU.£4
C.J.
HitmataMhi)v. Jolmpulle.
( 248 )
1914. found ftiat tile deed No. 1,944, being executed by Cassie Chetty intbis own name, and not by the first defendant by his attorney, did
OJ. not bind tile first defendant. Here, again, 1 think the District
StoMby Jud*« “
v. Johnpuue The opinion has been expressed in .text boohs of authority thatsection 46. of the Conveyancing and Law of Property Act, 1881,applies only where the donor of the power expressly gives the doneeauthority to act in his name {vide Boustead on Agency 304 andHatebury's Laws of England, vol. section 443).
This interpretation of the section is a matter of opinion, and isperhaps not wholly free from doubt, but I am unable to say thatthe learned District Judge is wrong in following these authorities.
But in .the present case there is no room for doubt as to the formin which the donee of the power was authorized to sign deeds.The power of attorney authorizes Cassie Chetty “ in the event ofany sale, mortgage, lease, exchange, or purchase for me and in myname, and as. my act and deed, to sign, execute. &cM all deeds andother writings necessary for giving eifect and validity to the samerespectively, or to any contract, agreement, or promise for effectingthe same: v* The form of execution is dearly specified.
Mr. Bawa contended that by the general words in the first clauseof the instrument the attorney was authorized to sign in his ownname. The words are ** on my behalf and in my name or otherwisefor all and each and every or any of the following purposes. ” Thewords “ or otherwise ” in this collocation dearly cannot over-ridethe specid provision subsequently made for the execution of deedsby the attorney in the principal's name.
Then it is argued that by the law of Ceylon a formal power ofattorney is not necessary, and that Cassie Chetty’s power to act forthe first defendant could have been proved by parol evidence; andin this connection we were referred to Meera Saibo v. Paulo Silva1and Grey & Go. v. Arabin*
But at this stage of the .trid it is not open for the plaintiff toplead that Cassie Chetty was verbally authorized by the firstdefendant to sign the deed.
The case went to trial on the footing that such authority asCassie Chetty had to sign the agreement was to be found in thepower of attorney; and the first issue was fixed on this footing.
With regard to the 14th issue, the case is in some confusion. Thisissue, it is to be noted, arose only if issues Nos. 11 and 12 wereanswered in favour of the defendants.
I cannot but think that it was owing to some mistake or slip that.this issue was included among the preliminary issues on which thecase went to trial. The issue was one which could not he decidedwithout evidence. The learned District Judge is of opinion thatthe plaintiff must fail on this issue, which does not set out the
»4 N. L. It. *31.
^ Ham.103.
( 249 )
particulars of the estoppel relied on, and the plaintiff had pleadedno estoppel. There may have been good reason for refuting toaccept tiie issue in its present form; but when once the issue hasbeen fixed, apparently with the consent of the parties, I think thatit must be tried.
1914^
IiASOE&LES
OJ.
Sinnatambuv. JohnpiUle
I would set aside the judgment of the Court below, and remit thecase for trial of the 14th issue. In the circumstances, and in viewof .tile plaintiff's failure to object to the trial of issue No. 14 with theother preliminary issues, I would allow no costs of the appeal; allother costs to be in the discretion of the District Judge.
Set aside.
Ennis J.—I agree.