Simmons v. Globe Printing Co.

• Decision Date: 04 February 1919
• Docket Number: No. 15379.,15379.
• Citation: 209 S.W. 130,201 Mo. App. 133
• Parties: SIMMONS v. GLOBE PRINTING CO.
• Court: Missouri Court of Appeals

209 S.W. 130

201 Mo. App. 133

SIMMONS v. GLOBE PRINTING CO.

No. 15379.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Alice Simmons, administratrix of the estate of H. J. Simmons, deceased, against the Globe Printing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John T. Barker, of Kansas City, and Charles & Rutherford, of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

ALLEN, J.

This is an action by the administratrix of the estate of H. J. Simmons, deceased, upon an alleged contract between said Simmons and the defendant corporation, whereby, it is alleged, the defendant promised and agreed to pay Simmons the sum of $5,000 in settlement of an action for libel which had been instituted by him against the defendant, and which was then pending. The trial below, before the court without a jury, a jury having been waived, resulted in a judgment for the defendant, from which plaintiff prosecutes the appeal before us. The facts involved, which appear to be undisputed are as follows:

In March, 1911, the defendant, through the columns of the Globe Democrat, a daily newspaper published by defendant in the city of St. Louis, published an article with reference to members of the General Assembly of Missouri, of which body H. J. Simmons was then a member from Shelby county. Simmons regarded the publication as libelous to him, and accordingly instituted an action for libel against the defendant in the circuit court of Shelby county. The petition in the libel suit was signed by several counsel. Thereafter the cause went on change of venue to Knox county, and while it was there pending negotiations were had between the parties looking to a settlement of the controversy. It appears that, prior to the time of the alleged contract of settlement here sued upon, the defendant, through its counsel, had offered to pay Simmons $5,000 in settlement of the matter, but that he demanded $7,500.

The evidence shows that on June 8, 1913, defendant's counsel, in the city of St. Louis, received a telegram from Simmons, who then resided at Kirksville, Mo., "asking for an appointment"; and that in reply defendant's counsel telegraphed Simmons that he could see him "most any time." And pursuant to a subsequent telegram from Simmons, he and defendant's counsel met at the latter's office in the city of St. Louis, on June 10, 1913. Defendant's counsel testified, without objection, as to what occurred on that occasion. His testimony, as it appears in the record, so far as it need be set forth, is as follows:

"Mr. Simmons said: `Well, I have about concluded to take that $5,000 to settle my case, and I would like to get the money to-day.' I told him that it would be impossible to do that; that he had a number of attorneys in the case; and that he would have to have a release or waiver from all the attorneys before I could pay him the money, as I wouldn't have any question after it was over about any fees that lawyers might have in connection with the settlement. He assured me there would be no trouble about that, but I told him I didn't want to take a chance, but I would prefer to have the whole matter closed up at once. He seemed disappointed when I told him that. I said: `I will prepare a form of instrument which I want you and they to sign. You can take it back with you and get these lawyers to sign it.' * * * I dictated the document to the stenographer in his presence, and while she was writing it nut he seemed anxious to get away, and I had to persuade him to remain until it was written out by the stenographer; but he did remain and took away the document with him. He did not sign it in my office. When I gave him the document, I said to him: `It will not be necessary for you to come back here. I think I can suggest a way of handling it conveniently. After you have gotten everybody to sign it, if you will attach it to a draft for $5,000 and send it to me here at some bank, with authority to the bank to deliver to me the release when I pay the draft, in that way you can get the money without any inconvenience or difficulty.'"

The release prepared by defendant's counsel and given to Simmons is in form a full release and acquittance by Simmons, in consideration of $5,000 paid to him by defendant, with an agreement on his part to settle with his attorneys; and following the place for his signature appears a paragraph to be signed by his counsel, consenting to the settlement and authorizing the payment of the money to him.

The evidence discloses that Simmons left St. Louis that afternoon or evening, and returned to Kirksville. On the following day he committed suicide. The release which had been prepared by defendant's counsel was found upon his person. He had, in the meantime, signed the instrument; but it had not been signed by any of his counsel.

Subsequently certain correspondence passed between counsel which we need not here set out. We may say, however, that, after the death of Simmons, counsel who had represented him in the libel suit expressly waived all claim to any attorneys' lien upon the fund to which it is claimed the administratrix is entitled. And in this connection we may further state, whether material or otherwise, that the evidence shows that the estate of H. J. Simmons was solvent; that it "easily closed out $8,000 or $10,000." The record shows that the libel suit was dismissed by the circuit court of Knox county, on December 17, 1914, "for want of prosecution."

The present action, instituted May 16, 1914, is upon the oral agreement of settlement alleged to have been made between Simmons and defendant's counsel, in the latter's office; by virtue of which, it is said, plaintiff administratrix is entitled to recover the sum of $5,000.

It is the contention of learned counsel for plaintiff, appellant here, that the facts shown in evidence establish a valid and binding oral contract, made in the office of defendant's counsel, between plaintiff's intestate, Simmons, and the defendant, the latter acting by counsel, in compromise and settlement of the action for libel, whereby defendant became obligated to pay to Simmons the sum of $5,000; that the contract is not one required to be in writing, and is supported by ample consideration, to wit, the mutual promises and agreements of the parties; and that the claim of Simmons for unliquidated damages in the libel suit became merged In this subsequent agreement.

Respondent, on the other hand, does not contend that a contract such as is sought to be enforced need be in writing, but insists that "the arrangement entered into between the deceased, Simmons, and the defendant, was, at most, an accord without satisfaction," which is "not enforceable at law and leaves the original cause of action in statu quo." And a further contention of respondent is that the evidence does not show a completed contract; that the $5,000 was not to be paid by defendant until the release mentioned had been signed by Simmons and his counsel and delivered to defendant, which was not done.

No question is raised as to the authority of defendant's counsel to bind his client by an oral agreement made between counsel and Simmons upon the occasion mentioned. The question for our determination is: Did the transaction or arrangement in the office of defendant's counsel constitute a binding contract between the parties, whereby defendant's alleged promise to pay plaintiff $5,000 became substituted for its contingent and unliquidated liability in the action for libel, and into which contract plaintiff's original cause of action became merged and...