This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
5 Insurance Co. v. Davis, 95 U. S. 425, 24 L. ed. 453
The authority of an agent appointed before the war to care for the property of his principal who has become an alien enemy, is ordinarily not revoked by the outbreak of the war as a matter of law.7 If the interests of a principal who has become an alien enemy are subserved by regarding his appointment of an attorney in fact to represent him in a proceeding to obtain an accounting of an estate in which such alien enemy is a beneficiary, and to determine and to compel a distribution of such estate, such power of attorney will be presumed to continue.8 It has been said that the interests of an alien enemy principal will be injured by treating a power of attorney to collect a legacy and to give a refunding bond as continuing in spite of the outbreak of the war, at least if such legacy, when collected, is to be paid over to the custodian of alien property;9 and accordingly it will be presumed that such power of attorney is revoked by the outbreak of the war.10 The fact that the alien enemy who has been served by publication does not elect to take advantage of his statutory privilege of being represented by counsel, is not sufficient to show an election on his part to treat, as still in effect, a power of attorney given before the outbreak of the war, to collect legacies and to give refunding bonds.11
Whether the outbreak of the war revokes the power of an attorney-at-law to represent the interests of his client who has become an alien enemy, is a question upon which there is a conflict of authority. In some jurisdictions it is held that such authority is revoked by the outbreak of the war;12 while on similar facts the opposite result has been reached, and it has been held that such authority is not revoked.13
6 Rodgers v. Bass, 46 Tex. 505.
7 United States v. Lee, 106 U. S. 106, 27 L. ed. 171; Hale v. Wall, 63 Va. (22 Gratt.) 424.
Contra, Howell v. Gordon, 40 Ga. 302 (obiter, as real question was as to power of such agent to confess judgment in an attachment proceeding).
8 Keppelmann v. Keppelmann, 80 N. J. Eq. 300, 105 Atl. 140.
9 Keppelmann v. Keppelmann, 89 N, J. Kq. 390, 105 Atl. 140.
10 Keppelmann v. Keppelmann, 89 N. J. Eq. 300, 105 Atl. HO.
11 Keppelmann v. Keppelmann, 89 N. J. Kq. 390, 105 Atl. 140.
12 Blackwell v. Willard, 65 N. Car. 555, 6 Am. Rep 740.
If a creditor is a citizen of a state which adheres to the Union during the Civil War, and he resides therein, his agent, who, together with the debtor, resides in a state which adheres to the Confederacy, has no authority to accept payment of such debt in anything except lawful money of the United States;14 and the fact that such agent has, without authority, accepted payment in Confederate money or in notes of state banks which were secured by Confederate bonds, does not operate as a payment of such debt.15
While as a rule the interests of the state demand that the authority of the agent to enter into new obligations on behalf of his principal should cease when the principal becomes an alien enemy, by reason of the outbreak of war, since such new obligations constitute trading with the enemy,16 it has been held that the continuing authority of the agent to protect the property of the principal, includes the power to include obligations to the principal for legal services in protecting such property.17
In some cases the interests of third parties are considered as well as the interests of the state on the one hand, and the principal and agent on the other; and if the revocation of agency by the outbreak of the war would work an injustice to such third persons, the agency has been held to continue, notwithstanding the outbreak of the war, if the continuance of the agency is not prejudicial to the interests of the state in whose court it is sought to enforce the transaction.18 Even if the interests of the principal might be subserved by treating the agency as revoked, such effect will not be given to the outbreak of the war if the interests of third persons who have dealt with the principal through the agent would be prejudiced much more seriously by such revocation.19 If an agent authorized before the outbreak of the war to bid in land on behalf of his principal at an execution sale, the outbreak of the war does not end his authority to receive money paid in for the redemption of such realty.20 War does not terminate the power of a resident agent to receive notice of the dishonor of a negotiable instrument.21
13 McVeigh v. United States, 78 U. S. (11 Wall) 259, 20 L ed. SO; Cocks v. Izard, Fed. Cas. 2034; Riddell v. Fuhrman, - Mass. - , 123 N. E. 237.
14 Fretz v. Stover, 89 U. S. (22 Wall) 198. 22 L. ed 769
15 Fretz v Stover, 89 U. S. (22 Wall.) 198, 22 L. ed. 769.
Contra, Rodgers v. Bass, 46 Tex. 505.
16 See Sec. 2726.
17 Buford v. Speed, 74 Ky. 338.
18 arling v. Lewis, 58 Tenn. (11 Heisk ) 125.
19 Darling v. Lewis, 58 Tenn. (11 Ileibk.) 125.