Horigan Realty Co. v. First Nat. Bank
| Decision Date | 06 December 1926 |
| Docket Number | No. 15773.,15773. |
| Citation | 289 S.W. 352 |
| Parties | HORIGAN REALTY CO. v. FIRST NAT. BANK OF ST. JOSEPH. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Suit by the Horigan Realty Company against the First National Bank of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed.
Culver, Phillip & Voorhees, of St. Joseph, for appellant.
Randolph & Randolph, of St. Joseph, for respondent.
This is a suit to recover the sum of $2,808.12. alleged to be a trust fund belonging to plaintiff, and which is in the hands of defendant. There was a finding and judgment for plaintiff in the sum of $2,637.-64. A motion for a new trial was unsuccessful, and defendant appeals.
This is the second appeal of this suit. In the first trial plaintiff was given a judgment for the identical amount above mentioned, and an appeal was taken to this court. On review, the judgment was reversed, and the cause remanded. A brief statement of the facts would seem to be necessary at this stage, and for a detailed statement reference is hereby made to our former opinion. Horigan Realty Co. v. First National Band: (Mo. App.), 273 S. W. 772.
It appears, from an agreed statement of facts upon which the cause was tried in both instances, that John J. Flynn, in March, 1920, and prior thereto, was secretary and treasurer of plaintiff corporation, which was founded for the purpose of handling the real estate of Alice Horigan. In March, 1920, a piece of real estate belonging to plaintiff was sold for a consideration of $6,000, of which $1,000 was paid in cash and $5,000 in negotiable Liberty bonds, payable to bearer. The proceeds of the sale were received by Flynn as secretary and treasurer. On March 30, 1920, Frazer L. Ford, president of defendant bank, at the request of Flynn, sold the said bonds and placed the proceeds in the sum of $4,552.-30 to the credit of Flynn's personal account with defendant bank where Flynn had checking account. The bonds were purchased by Ford & Porter, a brokerage firm of which the senior member was Frazer L. Ford. No disclosure was made at the time of the sale of the bonds as to their true ownership, and that they were not, in fact, the property of J. J. Flynn.
John J. Flynn died intestate on April 6, 1921, on which date there was to his credit on the books of defendant bank the sum of $2,808.12. This amount stood to Flynn's credit on the books of the bank until April 23, 1921, when the same was credited on a certain note, being one of six notes, each for the sum of $10,000, and all of the same tenor and effect except as to dates and maturities. The note involved in this controversy, dated January 13, 1921, is for $10,000, payable 90 days after date to defendant herein, with interest at 8 per cent. per annum after maturity. The note was signed, "Horigan Supply Company, by John J. Flynn," and was indorsed on the back as follows: "Horigan Supply Company, by John J. Flynn, President, John J. Flynn."
The agreed statement of facts shows that the Horigan Supply Company was a separate corporation in no way connected with the Horigan Realty Company, plaintiff herein, and was a wholesale dealer in plumber supplies at St. Joseph, Mo. It appears that the said notes were rediscounted with the Federal Reserve Bank at Kansas City, Mo., and the note of January 13, 1921, was returned to defendant bank on April 13, 1921, and the other notes were similarly returned two days later.; thus again becoming the property of defendant on the dates they were so returned. The books of the Horigan Realty Company did not show that Flynn had sold the bonds or any of them, but that they were still on hand.
On April 15, 1921, Frank J. Flynn, son of John J., was granted letters of administration on the estate of his father. The inventory showed the total value of the estate as finally collected was $21,534.56. Among the assets was included the item of $2,808.12 cash on deposit in defendant bank. Notes similar to those above described, payable to various persons and corporations on which John J. Flynn had placed his name in the same manner as the note above described, were probated against his estate and also allowed against the bankrupt estate of the supply company to the amount of approximately $260,000.
The Horigan Supply Company was declared a bankrupt on August 19, 1921, and its assets amounted to about 25 per cent. of its liabilities which included the notes which were probated against the estate of Flynn. The Flynn estate had not been fully administered at the time of filing this suit, but settlement was thereafter made and creditors upon the general claims received .05109 per cent. of their respective claims. Defendant herein proved its claim on the notes mentioned against the Flynn estate and the bankrupt supply company.
After the death of John J. Flynn, one T. P. Holland became the president of the Horigan Realty Company. About April 15, 1921, Holland told Frazer L. Ford that he was unable to locate the Liberty bonds in the amount of $5,000 shown in the summary of the Horigan Realty Company's affairs which Holland had shown to Ford during the week following the death of Flynn. Upon investigation, it was learned (as shown by a letter from Ford & Porter, by G. E. Porter, dated April 25, 1921) that the said bonds had been purchased by Mr. Ford from Flynn on March 30, 1920, and a check issued therefor payable to John J. Flynn in the sum of $4,552.30. Thereafter the plaintiff herein brought suit against the administrator of the estate of John J. Flynn and defendant herein, asking that the amount realized from the sale of said bonds be declared a prior claim. It was shown in that case that the amount sued for had not been recovered by the administrator; and the court in its decree found the money had not been traced into the hands of the administrator but that certain items in the sum of $577.33 had been paid out for the preservation of the estate, and this amount the court decreed was entitled to priority On final settlement, there was paid to plaintiff the said sum of $577.33, allowed as a preferred claim, and also, on final settlement and distribution, the further sum of $212.55, On May 17, 1921, Holland made demand on Frazer L. Ford for the balance of $2,808.12, and Ford told him there was nothing to the credit of the account.
The agreed statement of facts further states that John J. Flynn had no authority from plaintiff to use or sell said bonds or other property of plaintiff for his own use. Over the objections of defendant, the original petition in this cause was introduced in evidence, also the original summons and the sheriff's return thereon. The objection to the introduction of the original petition is as follows:
"Mr. Phillip: We want to object to it on the ground that the paper offered in evidence by the plaintiff, admitted in evidence, referred to as the agreed statement of facts, shows upon its face that it contains a stipulation between the parties that the judgment in this case is to be entered upon the facts therein stated, and we object to the introduction of any additional evidence to supplement, change, alter, vary, or in any way affect the stipulation of the parties of the...
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