Alexander v. Handley

• Decision Date: 03 December 1938
• Docket Number: No. 12483.,12483.
• Citation: 123 S.W.2d 379
• Parties: ALEXANDER et al. v. HANDLEY.
• Court: Texas Court of Appeals

Page 379

123 S.W.2d 379

ALEXANDER et al. v. HANDLEY.

No. 12483.

Court of Civil Appeals of Texas. Dallas.

December 3, 1938.

Rehearing Denied January 7, 1939.

Appeal from District Court, Dallas County; Towne Young, Judge.

Action by W. B. Handley against Mrs. Blanche M. Alexander and another on a compromise agreement. From a judgment for plaintiff, notwithstanding a verdict in favor of the defendants, the defendants appeal.

Affirmed.

J. Hardy Neel and Ervin Neel, both of Dallas, for appellants.

John Davis and Bailey & Shaeffer, all of Dallas, for appellee.

LOONEY, Justice.

W. B. Handley (appellee), an attorney, sued Mrs. Blanche M. Alexander and son, Winfield Morten (appellants), on a compromise agreement. The controversy arose substantially as follows: on the death of E. W. Morten, in 1929 (father and grandfather, respectively, of appellants), leaving a will which being objectionable to appellants, appellee was employed to contest same, and thereafter, for several years (until August 1933), represented appellants in matters pertaining to the Morten Estate. In August, 1933, appellee was discharged by appellants (the reason not appearing) and in lieu J. Hardy Neel, Esq., their present counsel, was employed.

There arose a disagreement between appellants and appellee as to the amount of his compensation for services rendered; appellee claiming a larger amount than appellants were willing to concede, and a larger amount than the sum subsequently agreed upon. This dispute continued until July 26, 1935, on which date the written agreement sued upon was executed. Prior to its execution, L. O. Handley (brother of appellee), who was connected with the real estate department of the Morten Investment Company and a business associate of Winfield Morten, as intermediary, interceded to bring about an agreement between appellants and appellee and, it seems, succeeded. So, on July 26, 1935, Winfield Morten and his attorney, Mr. Neel, went to the office of appellee for the purpose of reducing to writing the agreement, and after some discussion, appellee, in the presence and hearing of the other parties, dictated the agreement to a stenographer; the first draft, proving unsatisfactory for some reason, was discarded and the instrument finally executed was then dictated, and after being written was approved by Mr. Morten and his attorney, Mr. Neel, and was executed by the parties, after a few words were deleted from the second paragraph, which we do not deem of sufficient significance to merit further mention.

The instrument executed by the parties is in form, words and figures as follows:

                        "Dallas, Texas, July 26th, 1935
                "Mr. Winfield Morten
                "Dallas, Texas
                "Mrs. Blanche M. Alexander
                "Dallas, Texas
                

"Dear Sir and Madam:-

"In Re: Estate E. W. Morten, Deceased.

"To compromise and settle the matter of the amount owing me for services rendered you in connection with this estate, this will confirm the agreement this day made through L. O. Handley, whereby it is understood that in full and final settlement for such services I shall be paid the sum of $10,000.00, payable $5000.00 on or before November 1st, 1935 and $5000.00 on or before November 15th, 1935. Upon payment of such sums, both of you shall stand fully released and discharged from all claims and demands of every character which I now hold or may be entitled to against either of you.

"It is understood, however, that if such amounts are not paid as above specified, then I shall stand discharged of my agreement to accept $10,000.00 in compromise and settlement of my claim for services rendered, and in any suit which I may institute within three months after November 15th, 1935 for the full amount I contend is due me for my services, neither of you will interpose as a defense therein any statute or law of limitation of this State. This provision shall not be construed as an admission on your part of any amount, and is placed herein for the purpose of tolling the statutes of limitation in the event the $10,000.00 is not paid as above specified.

                    "Very truly yours,
                           "(Signed) W. B. Handley.
                  "July 26th, 1935.
                

"We hereby agree and bind ourselves to perform and carry out the above stipulation and agreement in accordance with the provisions thereof.

                "(Signed)   Winfield Morten.
                "(Signed)   Mrs. Blanche M. Alexander."
                

Neither the November 1st nor the November 15th installment being paid, appellee made repeated demands upon Winfield Morten for payment, which were not complied with, for the reason, as stated by Morten, they didn't have the ready money and that appellee would have to wait awhile longer. This status continued until two or three days before the institution of the suit, which was on January 27, 1936.

The nature of the defense urged by appellants is revealed by the following excerpts from their briefs; they say, "The defendants contend that the instrument sued on was not a direct obligation and contract to pay the Ten Thousand ($10,000.00) dollars, but was an offer to compromise and settle an unliquidated account and a conditional contract together with a waiver of a right to plead the statute of limitations. The defendants' contention was that the plaintiff's suit should be on quantum meruit". At another place, they say: "The purpose of the letter above referred to (the instrument sued upon) was to compromise, if possible, an unliquidated account and if this could not be effected then to stop the running of the statute of limitation. The letter first provides for compromise and settlement, and then provides that if such amounts are not paid, that Mr. Handley shall stand discharged of his agreement to accept Ten Thousand ($10,000.00) Dollars in compromise and settlement of his claim, and continues to provide for a remedy in such event. The money was not paid, the condition did not happen and the proposal was ended. The appellee was left to his remedy of a suit on a quantum meruit basis for such fee due him". Again they say that, "The purpose of the letter and the construction and interpretation that the parties placed on the provisions thereof at the time was that the defendants would have the opportunity, if they so elected, to pay the Ten Thousand ($10,000.00) Dollars in compromise and settlement of the claim, and secondly, that (if) this was not done, that the proposal was ended and that the plaintiff would sue on a quantum meruit basis and the defendants waived their right to plead the statute of limitation"; and, in their conclusion, they say: "We submit, therefore, that the contract, when properly construed, gives the appellants the right to either pay the money or waive their right to plead the statute of limitation * * *." At the conclusion of the evidence, the case was submitted to a jury on only...