Cosgrove v. Burton
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 667,104 Mo.App. 698 |
| Parties | JOHN COSGROVE, Respondent, v. BENJAMIN M. BURTON et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Howard Circuit Court.--Hon. John A. Hockaday, Judge.
Cause affirmed.
O. S Barton, Wm. S. Shirk and J. F. Rutherford for appellants.
(1) The gist of the cause of action alleged is an express contract. Plaintiff can not enlarge his cause of of action by resort to general words in the petition, but will be confined to the specific allegations. Huston v. Tyler, 140 Mo. 263. (2) Plaintiff having elected to sue upon an express contract must recover on that contract or not at all in this suit. "This is true even though the evidence develops a cause of action on quantum meruit." Cole v. Armour, 154 Mo. 351; McCormick v. Transit Co., 154 Mo. 202; Clements v. Yeats, 69 Mo. 623; Fuerth v Anderson, 87 Mo. 354; Construction Co. v. Iron Works, 169 Mo. 154; Raming v. Railroad, 157 Mo 506; Whipple v. Peter Cooper Ass'n. 55 Mo.App 554. (3) Plaintiff pleads a modification of his original contract. The petition states that, after the suits were determined, plaintiff reduced his fee to the sum of $ 1,000, and defendants agreed to settle same. The proofs showed that defendants made no agreement to such modification. The testimony of the plaintiff wholly fails to show a modification of the contract. To modify a contract, the consent of all the parties is required. Jacobs v. Maloney, 64 Mo.App. 270; Lee v. Porter, 18 Mo.App. 377; Sutter v. Raeder, 149 Mo. 297. Plaintiff, therefore, was not entitled to go to the jury upon the theory that he had reduced his fee to $ 1,000 and defendants had consented. (4) The court erred in refusing to give an instruction in the nature of a demurrer to plaintiff's evidence, as asked by defendants. There was a total failure of the proof of the contract as alleged. See authorities, supra. (5) The court erred in admitting the testimony of other lawyers as to the reasonableness of the fee charged. The action was on express contract. This evidence was, therefore, inadmissible, and was prejudicial to defendants. See authorities, supra. (6) But suppose we are wrong in our contention that this a suit based upon a specific contract, and suppose that the trial court did right in submitting the case to the jury on the theory that it was a quantum meruit case, then we contend that upon that theory the court erred in giving instructions numbered 1, 2, 3 and 4, in behalf of half of plaintiff. In these instructions the court tells the jury that they may find for the plaintiff in a sum not to exceed one thousand dollars. Henderson v. Mace, 64 Mo.App. 397; Mansur v. Botts, 80 Mo. 651; Plummer v. Troost, 81 Mo. 425. (7) Plaintiff's fifth instruction is wrong, and the giving same constitutes error. It tells the jury that they are not bound by the testimony of the expert witnesses. In the next sentence, however, it tells the jury that in considering such testimony the professional standing and experience of such witnesses must be taken into consideration in arrivin at a verdict. Cosgrove v. Leonard, 134 Mo. 419; Hull v. St. Louis, 138 Mo.App. 618; Kingsbury v. Joseph, 94 Mo.App. 298; Hoyberg v. Henske, 153 Mo. 63. Said instruction is also wrong, because it calls the jury's attention to the professional standing and experience of the expert witnesses and tells them that they must consider such standing and experience in making up their verdict. Hackman v. Maguire, 20 Mo.App. 286; Railway v. Stock Yards, 120 Mo. 541; Molch v. Railway, 82 Mo.App. 50; Thummel v. Dukes, 82 Mo.App. 53.
S. C. Major and J. W. Cosgrove for respondent.
(1) The principal point urged by appellant for a reversal of the judgment of the trial court, is that plaintiff declared upon a special contract and recovered upon a "quantum meruit." This contention can not be upheld under the pleadings and the proof in this case. Davis v. Brown, 67 Mo. 313; Smith v. Culligan, 74 Mo. 387. (2) The petition should be construed libarally with a view to substantial justice between the parties. The substantial rights of the adverse party were not affected. Revised Statutes 1899, sections 629 and 659. (3) The judgment of the trial court should be sustained. No error was committed against appellants materially affecting the merits of the action. Walker v. Guthrie, 102 Mo.App. 420; Rogers v. Hopper, 94 Mo.App. 437; Christopher v. Kelly, 91 Mo.App. 101; Summers v. Insurance Co., 90 Mo.App. 702; (4) Although appellants made oral objection to the introduction of testimony of reasonable value of respondent's services, on the ground that the petition declared upon contract, they clearly abandoned that theory of the case and waived that contention by asking the court to instruct the jury on the theory of a "quantum meruit." Appellants must try their case on the same theory in this court as in the trial court. Hill v. Drug Co., 140 Mo. 433; Pope v. Ramsey, 78 Mo.App. 157; Stewart v. Outhwait, 141 Mo. 562. (5) The mere fact that the petition recited the history of the services rendered by respondent, did not make the action one upon contract especially so when the petition states that respondent's "services reasonably worth," etc. Warder v. Seitz, 157 Mo. 140; Henderson v. Mace, 64 Mo.App. 393; Mansur v. Botts, 88 Mo. 651; Williams v. Railway, 112 Mo. 491; Moore v. Mfg. Co., 113 Mo. 107; Redman v. Adams, 165 Mo. 60; (6) It is well-settled law in this State that juries should take into consideration the standing and reputation of expert witnesses. Rose v. Spies, 44 Mo. 20; City of Kansas v. Butterfield, 89 Mo. 646; St. Louis v. Ranken, 95 Mo. 189; Head v. Hargrove, 105 U.S. 45; Cosgrove v. Leonard, 134 Mo. 419.
Benjamin E. Nance of Howard county died on or about the 22nd of May, 1902, leaving two children, Laura Burton and Martha E. Jordan. By his last will he left the greater part of his estate to Laura and Benjamin N. Burton; but prior to making his will he had conveyed to the said Burton 600 acres of land. Afer the probate of her father's will, Martha E. Jordan brought suit to set it aside and also brought suit to annul the said deed of conveyance. The plaintiff, a counsellor and attorney at law, was employed by the defendants to represent their interests in said suits. Benjamin Burton was the executor under the will of said Nance and the defendant Patrick H. Burton is the husband of said Laura. It was also a part of plaintiff's employment to recover from one Dr. R. S. Holman two thousand dollars which it is claimed he had fraudulently obtained from the said Nance in his lifetime.
The petition alleges that the contract of employment between plaintiff and defendant was as follows:
It was shown that plaintiff acted as counsellor and attorney for defendants in said matters; that his services were reasonably worth one thousand dollars; and that the value of the estate involved was from $ 35,000 to $ 40,000; and that Dr. Holman returned to the executor the said $ 2,000. In the suit to set aside the will the defendants obtained a judgment establishing it; but it was proved that it was in the nature of a compromise the consideration for which was the sum of $ 5,000 paid by defendants to the said Martha E. Jordan. The suit to annul the said deed was dismissed at the cost of defendants.
The jury returned a verdict for plaintiff for $ 1,000.
It is the contention of defendants that as plaintiff's cause of action was on a contract he was not entitled to recover on quantum meruit; and that under his contract he was entitled to recover only $ 500 as the defendants did not prevail in said two suits. As to the latter contention, if the contract is to receive a strict construction, plaintiff would have been entitled to recover an amount equal to ten per cent on the value of the property in litigation, which would amount to at least $ 3,500. But defendants say that as a matter of fact, although the judgments are formally in their favor, it was the result of compromise for which they paid in the one case $ 5,000, and in the other the costs of the suit. But defendants have left out of...
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