Carriger's Administrator v. Whittington's Administrator

Napton, Judge,

delivered the opinion of the court.

It does not appear in this case whether at the time of the sale of the pre-emption by Whittington to De Witt the death of the principal, Carriger, was known to the parties or not. It is inferable that at the time of the payment of the purchase money to the agent, in 1850, Carriger’s death was known to both parties. It is probable that when the contract was made in 1847, Carriger’s death, which took place in the previous summer on his way to California, was not known to either.

Although by the common law an agency terminated by the death of the principal, and all subsequent acts of the agent cease to bind his heirs or executors, yet judicial tribunals, especially those having equitable jurisdiction, have, for the convenience of trade and commerce and in accordance with the principles of natural justice-, very much modified this doctrine. When the death of the principal is unknown to both' parties at the time the contract is made, so that there is no binding contract on him or his representatives, the agent is not personally responsible. (Smout v. Ilbery, 10 Mees. & Wels. 1; Story on Agency, § 265; Blader v. Free, 9 Barn. & Cress. 167.) In Cassiday v. McKenzie, 4 Watts & Serg. 282 , the Supreme Court of Pennsylvania declared in good sense and sound reason there was no difference between a revocation of an agency by the act of the principal and a revocation by his death, which was the act of God, and that in either case, where the parties dealing were acting in good faith and ignorant of the revocation, the principal or his representatives ought to be bound. In neither case did the court suppose the agent would be; and they repudiate the opinion of Lord Ellenborough, in Watson v. King, 4 Camp. 5 Esp. 117, and of Lord Loughborough, in Tate v. Hilbert, 2 Ves. jr., —, where a power of attorney, though coupled with an interest, was held to be instantly revoked by the death of the grantor.

To determine the case now under consideration it is not important to inquire whether the heirs of Carriger have any *314 claim upon the purchaser De "Witt, or not, for the land or pre-emption right, or whether the collection of the purchase money from Whittington by Carriger’s administrator would have any bearing, either in law or equity, upon the determination of that question. It is manifest that the purchaser is, under the circumstances, without recourse upon the agent Whittington, and this is all which it is material to decide in allowing this recovery on the part of Carriger’s administrator. It is clear from the testimony that when the money was paid over by De Witt to Whittington, "both the agent and the purchaser were aware of Carriger’s death, and this circumstance would relieve the agent from personal x-esponsibility as much as if both parties had been ignorant of the principal’s death. (Story on Agency, § 265.) In addition to this, the purchaser De Witt was a witness at the trial, and interposed no objections to the recovery. On the contrary, he was a witness for Carriger’s representative. Should it turn out that Carriger’s heirs have title to the land, he could not look to Whittington, as he not only had notice of the death of Carriger at the time of the payment to Whittington, but is also fully notified of this proceeding to compel the agent to pay over to the principal. As the purchaser is the only person who could be injured by this proceeding, and he does not olfer to interplead, it may be assumed that he is satisfied with his title to the land, or would as soon rely upon the responsibility of Carriger’s representatives as upon that of Whittington’s.

There is nothing in the objection to the want of a demand in this case. The administrator would have no authority to pay money on demand. A claim against him must first be allowed by the probate court, and a demand would have been useless.

Nor is there any thing in the objection raised on the statute of limitations. That statute did not commence running until the grant of letters of administration.

The other judges concurring, judgment affirmed.