Chandler v. Hale

• Decision Date: 09 February 1925
• Citation: 268 S.W. 691,219 Mo.App. 133
• Parties: JAMES E. CHANDLER, Respondent, v. S. H. HALE, Appellant. *
• Court: Kansas Court of Appeals

268 S.W. 691

219 Mo.App. 133

JAMES E. CHANDLER, Respondent, v. S. H. HALE, Appellant. *

Court of Appeals of Missouri, Kansas City

February 9, 1925

Appeal from the Circuit Court of Jackson County.--Hon. W. P. Hall Judge.

AFFIRMED.

Judgment affirmed.

Guthrie & Conrad for respondent.

James M. Johnson and Donald W. Johnson for appellant.

OPINION

TRIMBLE, P. J.

This is a suit on a contract. Originally, the petition was in two counts, but the second count was dismissed at the close of the evidence, and no further notice need be taken of it.

Defendant's answer was coupled with a cross-petition for reformation setting up that the parties signed the contract sued on "mutually believing" that it expressed the agreement which in fact was intended to be and was made, but that by mistake of the scrivener called in to write the agreement, the contract as written did not correctly express said agreement. The contents of the answer will be stated hereinafter when the applicability of such contents will be more easily understood.

The record discloses that a jury was waived and the case was heard by the court, after which a decree was entered dismissing defendant's cross-petition, finding for plaintiff on his petition and rendering judgment for the amount asked. The defendant appealed.

The contract in issue grew out of the following situation and facts:

On March 3, 1920, the Commerce Trust Company held a note, amounting with interest, on that day, to $ 99,268.46, signed by plaintiff, by defendant and by John H. Atwood. This note had been given to obtain funds with which to purchase stock in an oil company of which defendant was president and Atwood was chief counsel. As between themselves, owing to the amount of stock each purchased, defendant owed one-half of said note, plaintiff owed one-fourth and Atwood owed one-fourth.

At the date above mentioned, defendant's financial condition was thought to be somewhat in doubt, and the Commerce Trust Company was wanting the note paid. From some source, not clearly disclosed by the record, a very large sum of money belonging to defendant came to the Commerce Trust Company, being deposited therein to defendant's credit. The bank refused to allow defendant to check on this deposit, insisting on holding it to apply on said note.

Defendant had a deal on hand at that time which would require the use by him, of $ 40,000 in cash. He was desirous of making this deal, but could not obtain said amount from his deposit because of the bank's refusal to allow him to check thereon, unless the note above mentioned were paid. He, therefore, wanted to get said note out of the way so he could use the above sum out of his funds on deposit in the closing of the aforesaid deal.

Defendant, therefore, on the above-mentioned date, called plaintiff to his office for the purpose of making some arrangement whereby the note could be gotten out of the way. Defendant could pay his half of the note, to-wit, $ 49,634.23 and plaintiff was able and willing to pay his one-fourth, to-wit, $ 24,817.11, but Atwood was unable to pay one-fourth. A proposition was then made by defendant to plaintiff and agreed to by the latter, which, if satisfactory to Walter S. McLucas, President of the Commerce Trust Company, would result in getting the above-mentioned note out of the way and allow defendant to check on his deposit and put his contemplated deal through. After plaintiff and defendant had reached an agreement subject to McLucas's approval, the latter arrived, and the method by which the note was to be disposed of was stated to him, and he consented to it. This was that defendant would pay his one-half of the note in cash, plaintiff would pay his one-fourth thereof in cash and would also pay one-half of Atwood's one-fourth, and the other half of Atwood's part would be covered by defendant giving his note therefor to the Commerce Trust Company with plaintiff as endorser thereon. This method of disposing of the note hereinbefore mentioned being satisfactory to Mr. McLucas, defendant called from an adjoining room Mr. Stottle, a young man who was a licensed attorney employed as secretary and stenographer of various companies of which defendant was president and who did defendant's work when requested. The terms of the agreement between plaintiff and defendant were then stated to Stottle for the purpose of having him formulate them into a typewritten contract. As the terms were stated to Stottle he made pencil notes for his use in drawing said contract. In thus stating the matter to Stottle, the defendant "did most of the talking," though plaintiff at times joined therein.

Stottle retired to his room and in about forty minutes returned with a contract written in duplicate on the typewriter which he read aloud to the three men present, McLucas, plaintiff and defendant; and the contract as prepared by Stottle was assented to by plaintiff and defendant as stating the terms of the agreement, at least no objections were made to it, and McLucas complimented the young man upon the very clear way in which he had stated the terms of the contract in so short a time, and the expression of his compliment was concurred in by plaintiff.

Thereupon plaintiff and defendant executed the contract, each retaining his counterpart, and then the defendant paid to the Commerce Trust Company his one-half of the debt, or $ 49,634.23, plaintiff paid his one-fourth, or $ 24,817.11 and also paid one-half of Atwood's fourth, to-wit, $ 12,408.56; and defendant executed to the bank his note for $ 12,408.56, the other half of Atwood's part, and plaintiff endorsed the same. Thus, as defendant says, they all thought they "had arrived at a very happy conclusion."

The contract as written and signed is, in words and figures, as follows:

"Contract."

"This agreement, made and entered into this 3rd day of March, 1920, by and between S. H. Hale and James E. Chandler, witnesseth:

"Whereas, the Commerce Trust Company holds promissory note signed by J. H. Atwood, S. H. Hale, and James E. Chandler, in the principal sum of $ 98,237.08, on which there is accrued interest due for January, 1920, of $ 507.47 and for February, 1920, of $ 474.80, and for the first three days of March, 1920, of $ 49.12, making a total amount now due of $ 99,268.46; and,

"Whereas, said S. H. Hale owes one-half thereof, and said James E. Chandler owes one-fourth thereof, and J. H. Atwood owed one-fourth thereof; and,

"Whereas, the Commerce Trust Company requires payment of the said note, and said Atwood is not ready to pay his part of the same, and said Hale and Chandler are desirous of paying off the said note.

"That S. H. Hale is this day paying his one-half of said note and interest, to-wit, the sum of $ 49,634.23.

"That James E. Chandler is this day paying his one-fourth of said note and interest, to-wit, the sum of $ 24,817.12.

"That said Hale and Chandler are each paying one-half of the one-fourth of said note which should be paid by said Atwood, to-wit, said Chandler is paying the additional sum of $ 12,408.56, and said Hale is paying the additional sum of $ 12,408.56.

"It is understood that said Hale is obtaining said last-named sum of $ 12,408.56 by giving his note therefor to the Commerce Trust Company, due six months from the date hereof, bearing interest at six per cent per annum, and that said Chandler is indorsing said note, upon the understanding and agreement that said Hale shall at once, or as soon as he reasonably can, make demand upon Alfred Diescher, J. C. McDowell, and H. L. Doherty, for the payment of claims which said Hale has against Diescher, McDowell, and Doherty, amounting to $ 150,000, $ 150,000, and $ 100,000, respectively, and that if settlement of such claims is not made within ninety days from the date of such demands, said Hale will bring suit against said Diescher, McDowell, and Doherty, and if said Hale shall recover from such claims any sum over and above the expenses of such suits, he agrees to pay to said Chandler one-half of such amount, up to the amount of $ 12,408.56; it being understood that said Atwood is entitled to a portion of said Hale's claims against said Diescher, McDowell, and Doherty, and that this means is adopted of reimbursing said Hale and Chandler for the payment of said Atwood's one-fourth of the note to Commerce Trust Company. If said Hale shall not recover from said Diescher, McDowell, or Doherty, as herein set forth, he shall be under no obligation to reimburse said Chandler for the $ 12,408.56 paid by Chandler on Atwood's obligation.

"It is further understood and agreed that if said Atwood shall pay any part of his said one-fourth of said $ 98,237.08 note, at any time hereafter, the sum so paid shall be divided equally between said Hale and said Chandler.

"It is expressly understood and agreed that nothing herein contained shall be construed as waiving the right of said Chandler and Hale, or either of them from obtaining contribution from Atwood for the amount paid by them for him, at any time.

"In witness whereof, said S. H. Hale and James E. Chandler have hereunto set their hands this 3rd day of March, 1920.

"(Signed) S. H. HALE,

"(Signed) J. E. CHANDLER."

It will be observed that the contract, after setting forth the circumstances and the claims defendant had against certain parties, for which he would bring suit if settlement were not made, recites that "if said Hale shall recover from such claims any sum over and above the expenses of such suits, he agrees to pay said Chandler one-half of such amount, up to the amount of $ 12,408.56;" etc.

The controversy between the parties is over the source from whence Chandler was to receive from defendant anything under the contract. Plaintiff ...