Opinion
No. 7169.
November 25, 1953.
APPEAL FROM THE CIRCUIT COURT, DIVISION NO. TWO, GREENE COUNTY, WARREN L. WHITE, J.
Smith Williams, Springfield, for appellant.
Walker Daniel, Springfield, for respondent.
This action was instituted in the Circuit Court of Greene County, Missouri, to recover attorney fees and expenses in the sum of $1,603.56. The cause was tried in Division II, before the court, and judgment rendered for plaintiff in the sum of $531.38. Defendant appealed.
The petition alleges that defendant, a resident of Springfield, Missouri, was the owner of a large tract of land in Ozark County, Missouri, consisting of 10, 120 acres; that the United States Government filed a petition in condemnation in the U.S. District Court at Springfield to condemn 191.25 acres of defendant's land for construction of Bull Shoals Lake Reservoir. The petition pleads that on or about July 15, 1949, defendant, by oral contract, employed plaintiff, as his attorney, to represent defendant's interest in the condemnation suit. That by the terms of the agreement plaintiff was to prepare and file defendant's answer and employ local counsel, of his choice, to assist plaintiff in the preparation of said cause for trial; that plaintiff was to be compensated for his services by receiving forty per cent of the amount recovered in excess of $1,050, the offer of the government, plus actual expenses not in excess of $50.
The petition alleges that on August 5, 1949, this oral agreement was confirmed in writing, signed by plaintiff and defendant and J. Lewis Wyatt, lawyer in Springfield, Missouri, employed by plaintiff as local counsel. This written contract was filed and made a part of the petition.
The petition pleads that after the first agreement and confirmation thereof, plaintiff and defendant entered into an additional or supplemental agreement whereby defendant agreed to pay plaintiff $500 in addition to the compensation provided in the original agreement conditioned that plaintiff and his co-counsel, Wyatt, secure a reservation to the defendant of 11.84 acres of land and have it excluded from the 191.25 acres sought to be condemned. The petition then pleads that plaintiff complied with the terms of the agreement and alleges the work performed by both plaintiff and his co-counsel, Wyatt, in carrying out the terms of the original contract of employment and of the supplemental or modifying agreement entered into after the original agreement.
The petition also states that plaintiff, at the request of defendant, employed a stenographer and hired an automobile to attend a meeting at Gainesville, Missouri, to report proceedings before the commissioners in the condemnation suit at a cost of $35.
The petition then states that on or about the first of November, 1950, without notice or consent of plaintiff, defendant made settlement with the government in the condemnation proceedings by which the defendant was paid $1,000 for 166.25 acres of the 191.25 acres, sought to be condemned and the deletion from said condemnation suit of 25 acres which included 11.84 acres contained in the oral agreement by which plaintiff was to be paid $500 for securing the deletion thereof. The petition states that the 13.16 acres deleted from the 191.25 acres was of the reasonable value of $2,63.00 and prayed for a judgment for $1,052.80 or forty per cent of the reasonable value of said deleted property on quantum meruit.
The petition asks damages for breach of contract on the second oral agreement in the sum of $500 and for $35 expenses paid to the stenographer at the request of defendant and net expenses unpaid of $25.76, making a total prayer for judgment in the sum of $1,603.56.
The defendant's answer admits the terms of the written contract of employment; denies the subsequent oral agreement and, in the alternative, pleads a lack of consideration for the subsequent oral agreement.
The evidence touching the issues involved is as follows: Defendant is a lawyer residing in Springfield, Missouri. He owned 10,120 acres of land in Ozark County, Missouri, near the Arkansas border. The United States Government filed a condemnation action in the United States District Court at Springfield, Missouri, to condemn 191.25 acres of this body of land for the purposes of building Bull Shoals Dam. Defendant testified that he was served with summons in this action July 8, 1949. He testified that the government deposited in the registry of the court $1,050 before taking possession of the lands so sought to be condemned.
Plaintiff testified that he was a resident of Cotter, Arkansas, where he practised his profession as a lawyer. He testified that in July, 1949, defendant came to his office to employ him to represent him in the condemnation proceedings pending in the Federal Court in Missouri. He stated that defendant employed him at that time and that he had informed defendant that he would not take the case without co-counsel in Missouri. He testified that as a result of this conference, plaintiff came to Springfield and made an agreement with Mr. Wyatt, an attorney, to assist plaintiff in the case; that after the visit to Springfield, he returned home and prepared a written contract confirming the oral agreement between himself and defendant on the 5th day of August and sent two copies to defendant and two copies to Mr. Wyatt, which agreements were signed by both the defendant, Mr. Wyatt, and himself. The plaintiff testified that this written agreement was really a confirmation of the oral agreement made with defendant. This agreement was offered in evidence as plaintiff's exhibit "A" and reads as follows:
"In accordance with our suggestions, one to the other, during our conversation, at your office, in Springfield, to avoid the drafting of a long-winded contract of employment, between us, with reference to condemnation proceedings, filed against you, and 191.25 acres of land, belonging to you, in Ozark County, Missouri, I write you, as per agreement, confirming oral agreement, heretofore entered into between us, as follows:
"(a) I am to file answer for, and represent your interests, in the United States District Court, Western District, Southern Division, at Springfield, Missouri, in the condemnation proceedings, referred to above, your land being known as Tract No. 1706 in said proceeding, Civil Action No. 897, and now set for hearing on October 3rd, 1949.
"(b) The compensation to be paid to me, by you, will be 40% of compensation, paid to you by this proceeding, over and above $1,050.00, deposited by the petitioner, in the registry of the court, as your estimated just compensation for the lands taken, plus traveling expenses, lodging and meals, paid for by me, not in excess of $50.00, or which amount the sum of $18.62 has been heretofore paid to me by you. (A limit as to expenses, aforesaid was not mentioned by us in our conversation. However, desiring to be fair to you, I thought best to set this limit, and, which will probably enure to your benefit; and, this will certainly be the case, if the cause is not tried on the day set, and we have to wait until a later date, for trial).
"(c) That I shall employ counsel, Mr. Lewis L. Wyatt, Attorney at Law, Springfield, Missouri, to assist me, at my own expense, and to be paid for my part of recovery, 40% of all amounts paid to you in excess of $1,050.00, aforesaid.
"(d) That I have arranged with Mr. Lewis J. Wyatt, to associate himself with me in this case and for a fee of 1/3 of my 40% to be paid by me, leaving to me a net of 2/3 thereof. I am to render all necessary services at this end of the line, and Mr. Wyatt and I (or me) are both to appear in court and take part in the hearing.
"Upon the above statement of oral agreement, being ratified by you and Mr. Wyatt, the same will constitute our agreement in the matter."
Plaintiff testified that he employed J. Lewis Wyatt to assist him in the case and that Wyatt did most of the work. He testified that he interviewed witnesses who knew the land and land values, real estate men, timber buyers and people who operated float trips on the river; that he wrote the original answer in the case and filed it; that he prepared supplemental reports for the commissioners; that he kept in touch with defendant by writing letters, two or three a week, and by telephone calls; that he kept in contact with Mr. Wyatt, his local counsel, concerning the lawsuit.
Plaintiff testified that after entering into the first oral agreement, which was confirmed by the written contract, he and defendant entered into an oral agreement supplemental to or modifying the original agreement. He gave this answer: "A. Well you might call it a modification or independent different agreement."
Plaintiff testified that at the time of this supplemental oral agreement, he was staying at Hotel Dixon in Kansas City and defendant was at the Muehlbach; that defendant told plaintiff he wanted to get deleted ten acres of land from the condemnation proceedings which was high and which the water would not come within a hundred feet of and he agreed with plaintiff that if plaintiff would secure the deletion of this land, either by agreement or by suit, he would pay him $500; that later, defendant found out that this ten acres was surrounded on three sides by the lake and on the other side by government owned land so he added 1.84 acres more land to enable him to use the ten acres, making a total of 11.84 acres.
Plaintiff testified that in carrying out this second oral agreement, he came to Springfield, had a conference with Mr. Wyatt, and Mr. Wyatt really handled the work in carrying out the agreement; that he depended upon Mr. Wyatt to look after it and he did. He gave this testimony:
"Q. What did you do to secure the settlement of Mr. Mitchell's lawsuit with the Federal Government? A. Mr. Wyatt handled all that."
He testified that the first he knew of the settlement was when he received a letter from Mr. Mitchell in November, 1950. He stated he did not discuss the settlement with the government attorneys in Missouri but did with those in Arkansas; that he discussed with the Arkansas Government attorneys the chances of getting this land deleted. He gave this testimony:
"Q. What else did you do by way of negotiating settlement of Mr. Mitchell's lawsuit? A. Mr. Mitchell went around us and handled it himself. * * *"
Now the evidence shows that Mr. Wyatt did get all the amended pleadings filed and the case ready for trial; that he viewed the land and the witnesses in connection therewith and he was insisting upon trial and that while so insisting, he was informed by the representatives of the government that they were awaiting additional information from the government office in Little Rock and thought they would be able to make a settlement of the whole matter.
Plaintiff testified that he expected to get the lands, in the oral agreement mentioned, deleted at the trial of the case; that the cause had been set for one date and continued because Mr. Mitchell was sick. He stated the matter was being handled by Mr. Wyatt and that he got information every week about negotiations which were carried on with the government attorney. He admitted he received a letter from defendant, December 31, 1949, advising him that defendant was withdrawing his offer to pay the $500 for having the 11.84 acres of land deleted; that he notified defendant that that withdrawal was too late because of the work that had been done on this matter.
We think there was ample testimony in the record to support the court's findings as to the expenses incurred by plaintiff in the suit.
Defendant testified that he went to the office of plaintiff to employ plaintiff to represent him as attorney in the condemnation proceedings brought by the government against him to acquire 191.25 acres of land. He states he thought the date of the visit was July 17, 1949. He stated he did not think they reached an agreement as to plaintiff's employment but he said, "We agreed on it generally". He testified, however, that plaintiff was to come to Springfield in a few days in order to talk the matter over again; that he showed him the blue print, at the time, the location of the land and the land that he wanted deleted. He stated that he and plaintiff, later, talked over the matter in Springfield, August 3, 1949. He gave this testimony:
"A. Yes. We talked it over, about like we had in Arkansas: I talked to him again about having the land deleted."
He stated Mr. Wyatt was not present and that he had never met Mr. Wyatt. He stated that Mr. Wyatt's name was not ever mentioned; that he did not know Mr. Wyatt was to be employed as co-counsel until he got a copy of a proposed contract August 5, 1949, which is marked exhibit "A" in this case. He admitted that he signed that contract. He testified as to the supplemental or modifying agreement:
"Q. Now, how many conferences did you have with Mr. Denton after that written contract of employment was entered into, during the year of 1949? A. I think I saw him twice in Kansas City.
"Q. What was the purpose of your conference in Kansas City? A. Well, I talked to him generally about the case. And, prior to that time, he had called me and suggested that he thought that his fee should be increased by either forty percent of the land that was deleted, or that he be permitted to buy the land at two thousand dollars. He told me that over the telephone. I said, `Why, we have a contract covering all the details of this case.' Later on, I got to considering the matter, and I realized that Denton's interests and mine were conflicting, that the more land I got the less land the Government would pay for. And it struck me that he was trying to breach his contract and raise the price of his fee in the midst of the litigation. At that time, we had been getting our evidence together, at least I thought we had, and Mr. Denton was very rosy about what his witnesses were going to testify to. * * *
"Q. Did you ever tell Mr. Denton that you would give him five hundred dollars if he would delete the 11.84 acres of land from the condemnation suit? A. I told him, that if he could get the land done himself, I would give him five hundred dollars. And I did that because I got uneasy about him — he was up in Kansas City, a few blocks from the district attorney, and I just had a hunch that a man who * * *."
The defendant testified that he went to see Judge Reeves in Kansas City about the case and Judge Reeves promised him a jury trial. He gave this testimony:
"Q. Now, Mr. Mitchell, you settled your lawsuit, the condemnation suit, with the United States Government, didn't you? A. I did.
"Q. What did you receive by way of settlement? A. One thousand dollars, and 25 acres of land."
He stated he got the check on the 19th day of October, 1950, in the settlement.
The testimony shows that after the case was ready for trial and all the preparations had been made for such trial and while Mr. Wyatt was insisting on the trial, the defendant made the settlement without the knowledge of plaintiff; that he did tell Mr. Wyatt about the matter and Mr. Wyatt advised him that it was a good settlement. The 25 acres of land deleted in the settlement made by defendant included the 11.84 acres of land involved in the contract for which plaintiff was to be paid $500 for getting it deleted.
Defendant testified he paid Mr. Wyatt $50 for expenses and $75 fee for work done in going to Gainesville.
Mr. Wyatt testified that the $125 paid was not for a fee in the case.
In the conversation defendant testified that he told Mr. Wyatt he had done a lot of work in this case, etc.
In this opinion we will refer to the appellant as defendant and to respondent as plaintiff, being the positions they occupied in the lower court.
This cause was tried before the court and it becomes the duty of the appellate court to review both the law and the facts as in equitable suits and the judgment will not be set aside unless clearly erroneous and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310 RSMo 1949, V.A.M.S.; Brixey v. Luna, Mo.App., 254 S.W.2d 23; Fisher v. Peterson, Mo.App., 240 S.W.2d 176; Avellone v. John Weisert Tobacco Co., Mo.App., 213 S.W.2d 222.
Defendant's first assignment of error complains that the trial court erred in rendering judgment in favor of plaintiff upon the alleged oral contract entered after a written contract covering the same subject matter had been executed, and in finding that the alleged oral contract was supported by consideration, for the reason that the oral contract was nudum pactum.
To support this contention he cites Lingenfelder, v. Wainwright Brewery Co., 103 Mo. 578, 15 S.W. 844.
This is a case where an architect was engaged to erect a brewery and declined to proceed with the undertaking upon discovery that the contract for the refrigerating plant had been awarded to a business rival of the refrigerating company of which he was president and would not proceed until the president of the brewery company agreed to pay him a commission of five per cent. The court held there was no consideration for agreement because the architect was already bound to do the work.
There can be no doubt that the law is that where one promises additional or different compensation if the other will do what he is already obligated to do, the promise is without consideration and is unenforceable. That is the holding in all of the cases cited by defendant to sustain this contention. But these authorities are not in point in the case at bar.
By the terms of the original contract, in the case at bar, plaintiff agreed to represent defendant's interest in the condemnation proceedings whereby the government was taking 191.25 acres of defendant's land. The consideration plaintiff was to receive was forty per cent of the damages recovered in excess of $1,050, which had been paid into the registry of the court before said lands were taken, and expenses not to exceed $50. Before this contract had been fully performed plaintiff and defendant entered into an oral contract which, by its terms, changed or modified the original agreement. Under the terms of the oral contract defendant agreed to pay plaintiff $500 as attorney fee if plaintiff got deleted from the lands sought to be taken by the government, 11.84 acres, either by settlement or by the trial of the case.
The law is well settled that where a contract has not been fully performed by plaintiff at the time of the new agreement, that the substitution of a new contract for the old contract, while still unperformed, is sufficient consideration for the new contract. State ex rel. Presnell v. Cox, Mo.Sup., 250 S.W. 374; 17 C.J.S., Contracts, § 376, page 861; Avellone v. John Weisert Tobacco Co., supra, 213 S.W.2d loc. cit. 230.
The testimony in this case shows that while the first contract entered into was pending and before it had been performed, defendant called plaintiff, by long distance telephone, and told him he wanted to make a new contract; that they met in Kansas City and defendant said that because he had gotten suspicious of plaintiff, who was up in Kansas City where the government attorneys were, and because he realized that the interest of the parties were conflicting under the first contract, he entered into this new contract and, certainly, there was a valid and sufficient consideration to support the new contract and its modification of the old contract. There is nothing in the written contract which would warrant the trial court in finding that there was a duty imposed upon plaintiff to get the lands, described in the supplemental contract, deleted. Certainly, that all lands deleted from the original contract would lessen the damages the government would pay for the balance of the land and reduce the commission which plaintiff could recover under the original contract.
The new oral contract entered into between the parties amounted to a substitution for the original contract as to the lands to be deleted and we hold that where such substitution was made for an existing contract, still unperformed, the substitution of the new contract, itself, is sufficient consideration.
There can be no question that plaintiff, when he entered into the new contract, in question, abandoned his right under the old contract to recover damages for the lands to be deleted in the new contract and, therefore, surrendered a legal right under the old contract which constituted a new consideration for the oral contract. We think there is no merit in the defendant's contention under this assignment of error.
Defendant's second assignment of error complains that the trial court erred in overruling defendant's motion to dismiss the petition and motion for a directed verdict for the reason that plaintiff was a joint obligee and cannot maintain the action without joining the other joint obligee.
Defendant cites Section 507.030 RSMo 1949, V.A.M.S., and a number of Missouri authorities supporting this contention of the law.
An examination of the written contract and a consideration of the evidence in the case discloses that Wyatt was the agent of plaintiff. Defendant had nothing to do with the employment of Wyatt. He had never met Mr. Wyatt and knew nothing about him until he saw his name on this written contract. Wyatt was employed by plaintiff. His compensation for his services was fixed by plaintiff and the defendant, in no wise, was responsible for Wyatt's fee. Defendant made the contract of employment with plaintiff and with plaintiff alone and Wyatt was not a joint obligee. The authorities cited by defendant properly state the law under the facts in those cases but have no bearing upon the facts in this case.
The third assignment of error complains that no services were rendered under the alleged oral contract.
With this contention we cannot agree. The testimony shows that plaintiff came to Springfield, informed Mr. Wyatt, who was working for him and assisting him in the case, as to the new contract and that Mr. Wyatt prepared the case for trial, prepared all of the amended pleadings and that, in all respects, plaintiff had carried out his contract with defendant under the terms of the oral contract and that because of this work, defendant was enabled to make a settlement with the government, getting not only the lands in question deleted, but an additional 13 acres. There is no merit under the evidence in this case for this contention.
Judgment affirmed.
VANDEVENTER, P. J., concurs.
BLAIR, J., concurs.