31 Mo. App. 150 | Mo. Ct. App. | 1888
Lead Opinion
delivered the opinion of the court.
This action is brought on a contract against the personal representatives of Samuel T. Grlover and John R. Shepley, who were partners in the practice of the law under the firm name of Grlover & Shepley. The case was tried in the circuit court without a jury, resulting in a judgment for the plaintiff, from which the defendants prosecute this appeal.
The evidence adduced at the trial does not, so far as we<can see, present any controversy, or even discrepancy, as to a single fact. Upon the facts, the judgment which was rendered declares merely the conclusion of the law. This judgment must stand, unless we are obliged to reverse it because of a supposed technical error of procedure, which, so far as we can see, has not
The case, as made by the pleadings and the evidence, stated in a small compass, was this : The plaintiff had a contract with Mt. Pleasant township, in Bates county in this state, to defend certain actions which had been brought against Bates county, in the circuit court of the United States, upon certain railway aid bonds which had been issued by Mt. Pleasant township. Under the contract, he was to get, in case of successfully defending the action, a contingent fee of ten per centum upon the bonds, and in case of not successfully defending them he was to get nothing. This contingent fee, in the event of his success, would amount to some seven thousand dollars. He afterwards procured the township to pay this contingent fee to him upon his giving a bond, with security, to refund it to the township in the event of being finally unsuccessful in the defence of the suits. To assist him in defending the suits, he made a contract with Glover & Shepley, by which they were to aid him with their legal services in such defence, for a fee of two thousand dollars, contingent, in like manner as his fee, upon the event of finally succeeding in defending the suits. This fee of two thousand dollars he was to advance to them, and, in the event of the defence of the suits being unsuccessful, they were to refund it to him. He advanced it to them, in the form of his promissory note, secured by a deed of trust, which note he after-wards paid. He was not successful in the defence of the suits, and, therefore, in the year 1886, he repaid to the township, in its debentures, the seven thousand dollars, which it had advanced to him. He now brings this action to enforce the undertaking in the contract had between himself and Glover & Shepley, by which they agreed to refund to him the two thousand dollars, advanced to them in case the defence of the suits was not successful. This undertaking was expressed in a separate writing signed by Glover & Shepley, in the following words :
“ Whereas O. C. Bassett, of Bates county, Missouri,*154 has this day given ns his note, for the sum of two thousand dollars, with approved security, payable March 1, 1879, which was in payment of our fee in the cases prosecuted, or hereafter to be prosecuted, against Bates county, Missouri, upon the Mt. Pleasant township railroad bonds; and whereas said fee in said case was contingent and dependent upon the success of said county in said suits, and said fee has been paid to said Bassett, upon his executing a bond to said county, conditioned that if said actions should be decided adversely to said county, then the said fee should be refunded. Now, therefore, we hereby agree to assist said Bassett in the defence of any actions which may be brought on said Mt. Pleasant township bonds, and in case said Bassett shall be compelled to refund to said Bates county, any part of said fee, we agree to pay him back so much of said fee so refunded as the amount of the note received bears proportion to seven thousand dollars.
“ (Signed) Glover & Shepley.
“St. Louis, June-16, 1878.”
This statement of facts is established by an undoubted and uncontroverted chain of evidence, and it shows that the plaintiff is entitled to recover.
The question raised by the defendants on this appeal arises in this way : In the above contract between the plaintiff and Glover & Shepley, which is the subject-matter of the suit, there is a misrecital of the bond given by the plaintiff to Mt. Pleasant township, in that it is recited as a bond given by him to Bates county. It is easy to understand how the misrecital arose. Actions upon township bonds were, under the law existing at that time, prosecuted against the county of which the township formed a part, and these actions were so prosecuted. In his petition, the plaintiff sets out this mistake and alleges that the contract between him and Glover & Shepley, wherein it referred to Bates county, was intended to refer to Mt. Pleasant township, that is, to the bond which he had given to Mt. Pleasant township to refund, in the event of not being successful in
When the cause was called for trial, the defendants objected to the introduction of any evidence on behalf of the plaintiff, for the reasons that in the petition two causes of action, one legal and the other equitable, were improperly united in one count; and because the plaintiff was not entitled to equitable relief upon the facts stated in the petition, nor was the plaintiff entitled to relief at law until the contract' set out in the petition was corrected. According to the recitals of the bill of exceptions “the plaintiff then stated that this action was to be treated only as an action at law and was to be so tried ; whereupon the court overruled the defendants’ objections, and permitted testimony to be introduced by the plaintiff, to which ruling of the court the defendants then and there excepted'at the time.” Thereupon the plaintiff went forward with his evidence, in the course of which he proved by the testimony of witnesses that his contract with Mt. Pleasant township was the only existing contract to .which the contract sued on could have referred. He proved that there was no other such contract made or such bond taken than those had with him and his then associate, Henry, and Mt. Pleasant township, and that no such contract or transaction as that described in the contract sued on had ever been had or made with Bates county. This evidence was-admitted over the objections of the defendants, and the admission of it presents the ODly question which arises-on this appeal.
There is, perhaps, no rule of law which is more flexible or subject to a greater number of exceptions than the rule which, in actions at law, excludes parol evidence offered to vary or explain written contracts. In one case, where we had great difficulty in dealing with this question, it was said: “It may be a fair general
We are forbidden by the statute (Rev. Stat., sec. 3775) to reverse the judgment of any court unless we shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.
Outside of these considerations, it may be doubted whether the misdescription in this contract was of a matter so substantial as to require it to be reformed in a suit in equity before recovering upon it. It was merely a misdescription of another and inducing or collateral contract had between one of the parties to this contract and another party. This is merely a case where there has been a misdescription in a contract of the identity of another existing thing. If A sells to B a thousand bushels of corn, by a contract in writing, A cannot, of course, prove, in an action on the contract, that instead of com the parties meant oats, and that he tendered a thousand bushels of oats in a fulfilment of the contract.
Not only in the location of the land described in deeds of conveyance, but in all other cases, identity is peculiarly a question of fact for a jury. Begg v. Begg, 56 Wis. 534, 537; McDuffie v. Clark, 39 Hun [N. Y.] 166; State v. Babb, 76 Mo. 504; Miller v. McCullough, 104 Pa. St. 629; Miller v. Marks, 20 Mo. App. 369; Scott v. Sheakly, 3 Watts [Pa.] 50; Prentiss v. Blake, 34 Vt. 460; Tutt v. Price, 7 Mo. App. 194; Tilford v. Ramsey, 37 Mo. 563, 567.
As shown by some of the foregoing decisions, cases where there is in the deed or other written instrument a partial misdescription of the thing intended to be identified, are appropriate cases for the application of this rule, which submits the question of identity to the decision of the jury in an action at law. The case before us seems to be a case within this principle. The contract sued on recites that the plaintiff has given to Glover & Shepley a promissory note with approved security for the sum of two thousand dollars, ip. payment of their fee in the cases prosecuted or thereafter to be prosecuted against Bates county, Missouri, upon the Mt. Pleasant township railroad bonds. It also recites that the fee was contingent upon the success of the county in said suits. So far its recitals are correct. The suits
the judgment is affirmed.
Concurrence Opinion
delivered a concurring opinion.
I concur in the result of the opinion, but do not concur in the views therein expressed touching the
The Supreme Court has repeatedly decided that, where it is manifest that if the judgment were reversed the result upon a new trial would be the same as upon the first trial, the judgment will not be reversed, even though the case has been tried upon an improper theory. Conley v. Doyle, 50 Mo. 234, 235. Or even though the court proceeded erroneously and irregularly. Mississippi Bridge Co. v. Ring, 58 Mo. 491, 495. The' reports are full of cases where judgments were affirmed on appeal as being manifestly for the right party, notwithstanding intervening errors. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 51 Mo. 55; Mo. Glass Co. v. Sewing Machine Co., 88 Mo. 57; Ghio v. Beard, 11 Mo. App. 21; Brown v. Railroad, 20 Mo. App. 427; Fell v. Coal Co., 23 Mo. App. 216.
I am free to concede that the exercise of this power-should be used with great caution by appellate courts,, but this is a case which eminently calls for its exercise'. There is not even an intimation found in the entire record that the plaintiff was not entitled to a reformation of the contract in equity, provided he had proceeded to obtain such reformation, or that he was' not entitled to a judgment at law upon the contract thus reformed, or that the damages are excessive. The testimony contained in the record conclusively points to the fact that the plaintiff was entitled to the identical ultimate relief which he obtained, and that the court would have been justified, under the provisions of section 3567, to cause an amendment of the pleadings, if necessary.
Under these circumstances, I do not feel warranted to reverse the judgment, even conceding that the mode-of procedure by which the result was reached was irregular or erroneous.