Bassett v. Glover

• Decision Date: 22 May 1888
• Citation: 31 Mo.App. 150
• Parties: CHARLES C. BASSETT, Respondent, v. JOHN M. GLOVER, Administrator, et al., Appellants.
• Court: Missouri Court of Appeals

31 Mo.App. 150

CHARLES C. BASSETT, Respondent, v. JOHN M. GLOVER, Administrator, et al., Appellants.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Affirmed.

KLEIN & FISSE, for the appellants: The case was tried upon the theory, expressly announced by plaintiff's counsel, that no relief was asked or to be granted except relief at law. In such a case, the court has no authority to render a judgment upon any other contract than the one set out in the petition as the foundation of the action. Leake on Contracts [Ed 1878] 314, 318; 2 Parsons on Contracts [7 Ed.] *495, 497; Rayburn v. Dever, 8 Mo. 104; Leitsendorfer v Delphy, 15 Mo. 160; McClurg v. Phillips, 49 Mo. 315, 317; Leake on Contracts [Ed. 1878] 318, 321; Parsons on Contracts [7 Ed.] *496. The case does not fall within the rule that where there is an error or mistake on the face of the instrument so obvious as to leave no doubt of the intention of the parties, the mistake will be disregarded without sending the party into equity to have the instrument reformed. That rule is applied only in cases " " " " where the mistake in the expression of a written contract is obvious on the face of the instrument, so as to leave no doubt of the intention of the parties without the aid of extrinsic evidence to explain it." Leake on Contracts [Ed. 1878] 327; 2 Parsons on Contracts [7 Ed.] *496, and note; Gaines v. Allen, 58 Mo. 537, 543; Wald's Pollock on Contracts, s. p. 452; Michel v. Tinsley, 69 Mo. 442, 448. The character of the case at bar is disclosed by the petition, from which it plainly appears that extrinsic evidence was necessary to discover that a mistake existed in the contract sued on. In such a case, we submit that the contract must stand as it is written until reformed in equity. 2 Parsons on Contracts [7 Ed.] *496, 497. While it is true that the distinction between legal and equitable forms of action has been abolished by the code, yet the distinction and salient characteristics of the two systems, law and equity, still remain as well pronounced as before; and in all cases where equitable relief is necessary, a court trying a case at law cannot afford such relief. Holden v. Vaughan, 64 Mo. 588; Pomeroy's Rem. and Rem. Rights [2 Ed.] sec. 69; Bliss on Code Plead. [2 Ed.] sec. 116 and note, and sec. 170 and note. When the plaintiff announced that the case was to be tried strictly as an action at law, and not in equity, the evidence offered by the plaintiff should have been excluded, under the fundamental principle that parol testimony is inadmissible to contradict, add to, subtract from, or vary the terms of a written instrument. Bunce v. Beck, 43 Mo. 266, 279; Murdock v. Ganahl, 47 Mo. 135, 136; Burress v. Blair, 61 Mo. 133, 140; Koehring v. Muemminghoff, 61 Mo. 403, 407; County v. Wood, 84 Mo. 489, 515; Fruin v. Railroad, 89 Mo. 397, 404

R. O. BOGGESS, for the respondent: The language employed in the agreement was meant and intended to express the considerations and obligations of the contract, and also to describe the subject-matter of the contract. It is necessary in all such cases where a dispute arises as to the subject of such contract, where the descriptive language is not adequate and sufficient, or is in any sense indefinite and uncertain, to ascertain by and from their concomitant facts and circumstances, what was the subject-matter of the contract. In order to do so the court will, as a rule (and there is scarcely an exception to the rule), if possible, place itself at the same standpoint of the parties to the contract at the time and place when and where it was made, and will then construe the contract with reference to the objects and purposes of the parties thereto; and if, in looking at the contract which the parties did in point of fact make and sign, the court shall find that they have omitted some necessary words of description, and added some false words of description, it will uniformly supply the omitted words, and reject the surplus words, so as to get at and accomplish the actual ends and purposes of the contracting parties. Edwards v. Smith, 63 Mo. 119; Fontaine v. Savings Inst., 57 Mo. 552; Holocher v. Holocher, 62 Mo. 267; Miller v. McCoy, 50 Mo. 214; McConnell v. Brayner, 63 Mo. 461; King v. Fink, 52 Mo. 209; Amonett v. Montague, 63 Mo. 201; Filibert v. Berch, 4 Mo.App. 470; Langlois v. Crawford, 59 Mo. 456; Schreiber v. Osten, 50 Mo. 513; Aull v. Lee, 61 Mo. 160; Elliott v. Secor, 60 Mo. 163; McPike v. Allman, 53 Mo. 551.

OPINION

THOMPSON J.

This action is brought on a contract against the personal representatives of Samuel T. Glover and John R. Shepley, who were partners in the practice of the law under the firm name of Glover & 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 in any degree affected the conclusion of the court upon the merits, or prejudiced the defendants.

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 afterwards 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 C. C. Bassett, of Bates county, Missouri, has this day given us 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 6, 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 the defence of the suits, the fee which the township had advanced to him. The answers of the defendants, so far as they touch the merits of the controversy, were general denials.

When the cause was called for trial, the defendants objected to the introduction of any evidence on behalf of the plaintiff,...