Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 428
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428 GRUBBS v. LEON & H. BLUM. [Tyler Term,
Opinion of the court.
error in that particular. The statute contemplates that the record
shall disclose the power or authority of the attorney, and not the
power vested in some one else to designate an attorney to act for the
party.
It is claimed that the instrument, which in part forms the basis of
this suit, is invalid I ec muse it is against public policy. That assertion
is not sustained by the record. True, it is one of the most remarkable
and far reaching instruments that we have ever been called
upon to examine, still there is nothing in it violative of any policy
appertaining to the public. And there is nothing in the record outside
of the character of the instrument itself, which in the remotest
degree would indicate a want of capacity to contract. And while
it seems to have been the spirit and intent of the instrument to
place it within the power of the defendants in error to destroy the
business and financially ruin plaintiff in error at will, and with perfect
immunity against being required to respond therefor in damages,
yet the law does not inhibit him from thus placing himself
within the power of others, if he deems it proper to do so.
However, where a party who has exacted and secured such an
advantage, seeks through the aid of the courts to secure its fruits,
he will be held to-a strict compliance with the terms of the instrument.
Such a contract does not commend itself to the favorable
consideration of the courts, and the party will not be aided in its
enforcement by favorable intendment or presumption. For no enlightened
court will ever encourage by favorable intendment or presumption
forfeiture or confiscation of private property.
In our opinion it was essential to the validity of the judgment
that Dibble should, at the time it was confessed, have been acting
under a written designation, which, in conjunction with the instrument
sued on, would have authorized him to waive the process and
confess the judgment. No such written designation was on file at
the time the judgment was rendered, and that which was subsequently
filed and made part of the record by order of the court
does not cure the defect. From anything appearing to the contrary,
that writing may have been and perhaps was made and signed
long after the rendition of the judgment.
There is nothing in the character of the instrument, or in the
manner in which it was sought to be made available, which would
entitle the proceeding to any favorable intendment or presumption
in its support.
Our conclusion is that the judgment ought to be reversed and the
cause remanded. REVERSED AND REMANDED.
[Opinion adopted November 18, 1884.1
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/450/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .