Flanagan v. Brown

Searls, C. This is an appeal from a judgment in favor of defendant, and from an order denying a new trial.

We are of opinion the judgment and order should be affirmed, for the reasons given by the learned judge who decided the case in the court below on the rendition of 'judgment, and which are as follows:—

“This is an action on a promissory note for twenty-seven thousand dollars, executed by defendant September 4, 1876, payable four months after date, and bearing [256]interest at ten per cent per annum from maturity. The original holder of the note was the National Bank of the State of Missouri.

“At a sale of the assets of said bank, J. F. Conroy became the purchaser of the note in suit, paying therefor the sum of thirty-two dollars. Subsequently Conroy and the present plaintiff entered into an agreement reciting that, whereas Flanagan was the owner of thirty bonds of the St. Louis County Railroad, and Theodore W. Gaty (whose name was used for Conroy’s) was the owner of the note in suit for twenty-seven thousand dollars, it was agreed that Gaty should place his note in the hands of Flanagan, so as to enable him to manage, transfer, or dispose of said bonds and said note. The agreement concludes in these words: ‘All proceeds, money, or property realized from the transaction, after payment of expenses, shall be equally divided between the parties, but in no event shall said note be sold or disposed of for a sum of money or other property whereby a net sum shall be realized by said Gaty of less than $250.’

“The action was commenced by Flanagan alone. Pending the action, the defendant, after some negotiation, obtained from Conroy a release, which by supplemental answer is set up as a bar to this action.

“The question to be determined is, Does this release from Conroy bar plaintiff’s right of recovery? Defendant claims that Flanagan was a mere agent, whose authority was revocable at the pleasure of Conroy, his principal, and that Flanagan had no such right in the matter as would defeat Conroy’s control of the property and his release of any claim thereon. Plaintiff claims that he is the owner of the legal title, and also of a one-half interest in the proceeds of the note.

“ If plaintiff is the legal owner of the note, the ownership is not evidenced by the agreement hereinbefore referred to. No language of transfer or assignment is found therein. It does not appear therefrom that Con