Ball v. Reyburn
| Decision Date | 19 April 1909 |
| Parties | LIZZIE S. BALL et al., Respondents, v. ADAM K. REYBURN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Ray Circuit Court.--Hon. Francis H. Trimble, Judge.
AFFRMED.
Judgment affirmed.
J. L Farris, Jr., & Roberts and Black & Jenkins for appellant.
(1) Courts will not enforce a contract if it appears to be unconscionable or unjust, even though signed by the party sought to be charged with full knowledge. Bond et al. v Sanford, 114 S.W. 570; Blain v. Knapp & Co., 140 Mo. 241; Walker v. Automobile Co., 124 Mo.App 628. (2) The paper writing, "Exhibit A," at most is a mere admission and, being such it is open to correction, impeachment and qualification. (3) The instrument itself is convincing proof that A. K. Reyburn did not know of the contents on the first page; and that the same was fradulently so placed, or that Mr. Reyburn, by reason of his age, could not understand that he was agreeing to pay $ 500 to James E. Ball (now deceased) for services to be rendered in the Ray Circuit Court, only and in addition thereto, for a reasonable compensation to Mr. Ball for preparing brief, transcript and bill of exceptions. (4) Even if this written instrument is to be treated as a contract, the defendant had the right when the same shall be given in evidence to prove the want or failure of consideration. This was attempted to be done and was done beyond all cavil. R. S. 1899, sec. 645. (5) If the written instrument admitted in evidence as "Exhibit A" is to be treated as a composition or settlement of the past matters between James E. Ball (now deceased) and appellant, then it was competent as a defense to plead that the composition or settlement was fraudulently or wrongfully procured from appellant. On this point the evidence is overwhelming that such was the condition. R. S. 1899, sec. 654.
Lavelock & Kirkpatrick for respondents.
(1) It was competent for Mr. Ball and defendant to make the contract involved in this suit; they were free to agree, and they did so contract, thus fixing the rights and liabilities of each, and they were firmly bound thereby. The courts have uniformly so held. Besides, the presence of the defendant's signature to the contract warrants the presumption that he not only understood it, but that he assented and agreed to it. Schubach v. McDonald, 179 Mo. 189; Bank v. Farris, 77 Mo.App. 196; Evans v. Evans, 196 Mo. 23; Kirkpatrick v. Pease, 202 Mo. 494; Real Estate Co. v. Spellbrink, 111 S.W. 494; Campbell v. Van Houten, 44 Mo.App. 238; Dawson v. Wombles, 123 Mo.App. 345; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 112 and note. (2) The contract was not unconscionable. Neither on the face of the contract, nor under the evidence introduced, could it be adjudged unconscionable. 8 Century Dictionary, p. 6590; 2 Bouv's Dict., p. 621; 4 Bouv's Inst., n. 3848; 29 Am. and Eng. Ency. of Law (2 Ed.), p. 94; Chesterfield v. Janssen, 2 Ves. Sr. 154. (3) While appellate courts frequently review the evidence in equity cases, yet, it is equally true they defer to findings of trial courts where the evidence is given orally, and, particularly, if the testimony is somewhat conflicting. Bank v. Murray, 88 Mo. 196; Mathias v. O'Neill, 94 Mo. 529; Benne v. Schnecko, 100 Mo. 259; Rawlins v. Rawlins, 102 Mo. 567; Wilson v. Craig, 175 Mo. 403; Jordan v. Davis, 172 Mo. 608; Friedman v. Kelley, 126 Mo.App. 287.
Plaintiffs are the executors of the will of James Ball and brought this action for fees alleged to have been earned by Ball as a practicing lawyer in Ray county. They recovered judgment in the trial court.
The petition was in two counts but the second one was abandoned and the case left to stand on the first, which states the items of indebtedness and that these had been stated and agreed upon in writing signed by the parties. The contract recites that defendant was indebted to Ball for certain service theretofore rendered in a case with a coal mining company, in the sum of $ 200, of which he had paid $ 50. That he owed him $ 30 for indebtedness, not stated on what account. It further recites that defendant had employed Ball in a certain injunction case brought to restrain the city of Richmond from changing and lowering the grade of a street in such city upon which defendant's property abutted, for which services he was to pay $ 500. There appears a credit of $ 40 on the contract, which leaves a balance appearing to be due of $ 640, the amount for which judgment is asked and rendered.
We are asked to review the evidence in the record as though the case had been converted by defendant's answer into one in equity, and since in our opinion, considered as a case either at law or in equity the judgment should be affirmed, we have examined it from the latter standpoint. The evidence shows beyond doubt that the written agreement was executed by defendant. It is conceded that the signature is his, but it is shown that the agreement was written by typewriter on two pages of paper, defendant signing at the close, on the last page, and it is claimed that the first page has been attached to it by ordinary "fasteners" after signing. The evidence does not sustain the claim.
The principal contention between the...
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