Chamberlain v. Smith, 110 Mo. App. 657

110 Mo. App. 657 | Mo. Ct. App. | 1905

ELLISON, J.

— Plaintiff is an architect and brought the present action against defendant on an account for professional services for drawing preliminary studies, plans, drawings, etc., for a dwelling house and a barn. The result in the trial court was in defendant’s favor.

The evidence in behalf of plaintiff tended to prove that defendant engaged him to make “ preliminary studies ’ ’ for a house and a barn, and that he did so; that after defendant examined said preliminary work, he employed plaintiff to make general drawings, specifications and details for, and to superintend the construction of the buildings; that defendant agreed to pay therefor one per cent of the cost of the buildings for the preliminary work, “and an additional one-half per cent for the general drawings, and an additional one per cent for the specifications, and an additional one per cent for detail drawings, and an additional one and one-half per cent for superintending the construction of such buildings. The cost of the building was estimated to be, for the house $30,000, and for the barn, $6,000. That plaintiff was to be paid as the separate services above stated were rendered. That plaintiff entered upon said employment and made the general drawings and the specifications; and that defendant thereby became indebted to him in the snm of $870; that thereafter defendant paid plaintiff $115 on snch work, but refused to pay the balance of $755.

The evidence in behalf of defendant was for all practical purposes, in substance, a total contradiction of the contract as claimed by plaintiff. It further tended to prove that plaintiff rendered him an account for his services for $360, changed to $115 as follows:

“Mr. W. H. X. Smith,

“To S. E. Chamberlain, Dr.,

“Architect.

‘ ‘ This bill is now due.

“1902,

“Aug. 4th (1st) Bill rend.

for Archts. Services rendered (in pencil) $115.00 for House & Barn, (erased with pencil). .$360.00 Paid in full, S. E. Chamberlain.

“(N. B. — The figures “115.00” were written with indelible pencil, and the figures $360.00 were eraced with like pencil, but had been written with ink like body of bill.)

“(The words ‘Paid in full. S. E. Chamberlain’ and also the “115.00” were written with indelible pencil and the figures “$360.00” were erased with same pencil.) ”

That he thereupon went to see plaintiff and told him the amount ($360) was much more than he should be charged; that he would not pay it; that it was ‘ ‘ outrageous.” That he told him he had not ordered him to go ahead on the detail drawings and specifications, etc.; that in their dispute defendant offered him $100, which he refused; that he then offered him $110, which was likewise refused; that he then proposed that to avoid any trouble and to “settle and have the whole thing done,” he would give him $115, which plaintiff accepted and receipted the bill in full and said they would have no trouble.

There is no doubt of the law relied upon by plaintiff, that when there is a definite and undisputed sum due another his naked agreement to accept a less sum in discharge of the whole will not be binding, for lack of consideration. See opinion of Judge Gill in Winter v. Railroad, 73 Mo. App. 173, adopted by the Supreme Court in 160 Mo. 159. But if there is an honest difference between the parties as to a liability, or as to the amount due, and the parties agree that the debtor may pay a less sum as in full of the creditor’s claim, the debtor may do so and thereby discharge himself. [St. Joseph School Board v. Hull, 72 Mo. App. 403.] Where there is a dispute, in good faith, as to the amount due on a claim, the parties may make a binding agreement for a sum less than that claimed.

The trial court modified the principal instruction asked by plaintiff wherein his hypothesis of a right to recover on the case as made by the testimony in his behalf was set forth by adding thereto a proviso, that if there was an honest difference of opinion as to the amount due and that the payment of $115 was in compromise and full settlement of plaintiff’s claim, the finding would be for the defendant. There is no doubt of the propriety of the action of the court in making the modification. The declarations of law made by the court were in all respects correct. The only question between the parties was one of fact. And since there was evidence tending to support the verdict we must affirm the judgment. What we have said, in effect, disposes of the point made in plaintiff’s brief as to the action of the court on the instructions given and refused. We have examined the different points of objection made but can find nothing which would in any way authorize us to interfere with the judgment.

Affirmed.

All concur.