The weekly Minnesotian. [volume] (Saint Paul, Minn. Territory) 1852-1858, 1853-02-05

District Court Firs. Judicial District, Washing.
ton County.
l4th Dec. 1852.
John dst 3: Page yxotion for a ne,e ,,ia,
William 8: Mahoney. o" a case made.
Wilkinson for Dcft
A,nes for Plaintiff.
This was an issue tried OH the sth day of %.
tober. 1852, before the Hon. David Cooper at
the Washington County District Court. Aver
dict was rendered by the Jury for SS15 25.-
The action was for the recovery of $780, as the
balance due for goods, wares and merchandise.
sold and delivered by the Plaintiff to Defend,
ant and interest thereon from the 22d August.
lS47
The cause was on the issue formed by the
supplemental answer, setting up settlement
OF the action upon certain conditions embodied
in certain special contract of settlement, and
setting forth other and different conditions, an
nexed to the agreement, and denying the per-
formance Of the conditions thus set forth.
The following is copy Of the contract intro
duced in evidence on the part of the Plaintiff,
viz:
John B. Page } District Court;
William O. Mahonov f1vst WssS;u Judicial District
Action for the recovery Of money
Received of William o. Mahoney, defendant
In the above entitled case, the following draft,
copied as follows, to wit
SALTWATER, Sept. 10, 1852
Messrs. B. II. CAMPBELL. 4 Co.:
GENrs Please pay, at sight, One Hundred
Dollars to William o. Mahoney, or order. value
received, and place the same to our account,
and much oblige
Yours &c,
SAWYER & HEATON.
The same being endorsed civilian O. Maho-
ney !"
Also, received promissory note Of which the
following is copy:
"1lOl2
On the 18th day of November next, for
value received. promise to pay to the order of
+. K. Bartlett, One Hundred and Ten Dollars
and Twelve Cents.
WILLIAM o. MAHONEY.
SALTWATER, Sept. 10, 1852"
Also, received draft of which the following
is copy:
Please pay to the order of John B. Page, Two
Hundted and Thirty-nine Dollars and Eighty
eight Cents, f6r value received, and charge the
same to our account,
KENT & MAHoNEY.
SALTWATER, Sept. II, 1852"
The above draft to be received by the said
John B. Page in account with the said Daniel
Mears.
And now if the above note of Sl10 II shaNbe
paid ,rhen the same shall become due, the ,chole
of the above is received an full discharge and
acquittance of all demands and claims of the
said Page against the said Mahoney existing at
the time of the commencement of the said suit,
and the said suit is to be released, discharged
and satisfied in f11 tho of oil
costs by said defendant.
FIX BARTLETT.
Attorney for John 3. Page,
and holding said claims
Among other things, the plaintiffs reply as
serts that the Attorney had no authority to re-
celve the draft of Mears, accepted as described
in the above agreement that after some con-
versation, the Attorney agreed to sign the re-
ceipt or agreement, and to consider the drafts
and note received as a full settlement of the
suit, provided the plaintiff ,cOuld accept and
receipe the draft so drawn and accepted by
.Nears, and defendant would pay all the costs
in the suit and would pay the notes and pro-
vided the plaintiff refused to accept the .Mears
draft, the receipt and agreement was to be
null"
That the Attorney signed the receipt and
agreement upon these conditions, and that such
receipt or agreement.
That plaintiff declined and refused to accept
the Mears draft, and it was offered and rendered
back to defendants attorney, together with Ma
honey's note and SlO0 cash, which defendants
attorney refused to accept.
And the concluding allegation in the reply is
in substance, that the acceptance of the Mears
draft by the plaintiff, and the payment of all
costs in the suit and the Mahoney note by the
defendant waro each and eypry Of tharn condi.
tions precedent, before any effects or power
should have been had or given by the receipt
or agreement and that neither nor any of said
conditions have been performed
What is the legal effect of the agreement for
the settlement of the suit, or receipt so called
in and of itself?
The instrument purports to have been exc
cuted by F: K. Bartlett, "att0rney for John B.
Page, and holding the claim" Non constat
he was the attorney in fact as we'll as at law,
for he does not sign or subscribe it as attorney
at law. but as attorney" only. The addition,
also, of 'and holding the claim" affixed to his
signature, appears to indicate he was the own
er, or part owner, of the claim settled. This
view is also much strengthened by the fact that
the note of Mahoney, named in the settlement
was made payable to the order of F. X. Bart
lett.
If the attorney at law was likewise attorney
Ill IL III Hde CNCu ny pdA
he might execute such writing. An attorney
in fact is only an agent, and the authority of
such an agent is usually granted by paroi.-
(Story on Agency, PIP. rs, 55) And such
agents may make, execute and deliver written
instruments, not under seal which will bind
their principals Story's Agency, S55, 56.)
But if Bartlett was the equitable owner, or
part owner, he was attorney in fact coupled
with an interest, and this gives him unquesticn-
able authority to make, execute and deliver the
! instrument in writing in question.
Suppose, however, be was only attorney at
law, and this seems to lie contravened by strong
presumptions the taking a note payable to his
own order has been referred to the verfcatiOn
of the supplementary reply, and the addition to
his name of 'holding the claims;' but suppose
he was only the attorney at law of the plaintiff,
the plaintiff is bound by the contract. Although
an attorney at law has no right to make COM
promise as between himself and client, yet a
court will be disinclined to disturb one which
| was not so unreasonable in itself as to be ex-
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