Graves v. Merchants & Mechanics Mut. Fire Ins. Co.
| Citation | 139 S.W.2d 1039,235 Mo.App. 543 |
| Parties | FREEMAN GRAVES, RESPONDENT, v. MERCHANTS AND MECHANICS MUTUAL FIRE INSURANCE COMPANY, A CORPORATION, APPELLANT |
| Decision Date | 07 May 1940 |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.
Judgment affirmed.
C. P Damron and A. M. Spradling for respondent.
(1) Mills v. Met. St. Ry. Co., 221 S.W. 1, 5; Reynolds v. Clark Co., 162 Mo. 680; Kersey v Garton, 77 Mo. 645-647; McCullough v. Baker et al., 47 Mo. 401-2-3; Perles & Stone v. Childs Co. (Mo.), 84 S.W.2d 1052, 1056; C. H. Robinson Co. v Frizzell (Mo. App.), 132 S.W.2d 1049, 1052. (2) If the act of the employer prevented performance, it will be assumed that the services would have been rendered as agreed upon. Reynolds v. Clark Co., 162 Mo. 680-84; Kersey v. Garton, 77 Mo. 645-6; Perles & Sons v. Childs Co., 84 S.W.2d 1052-56. (3) In all such cases plaintiff's recovery is for reasonable value, but not exceeding the contract price. The contract is to be used as an instrument of proof, and in the absence of other evidence, it alone affords sufficient evidence prima facie of the reasonable value. American Surety Co. v. Fruin-Bambrick Const. Co., 182 Mo.App. 667-73; C. H. Robinson Co. v. Frizzell (Mo. App.), 132 S.W.2d 1049, 1052. (4) Generally a count on contract and one on quantum meruit may be joined. Sec. 765, R. S. Mo. 1929; Sims v. Spellman (Mo. App.), 232 S.W. 1071; Williams v. Ry. Co., 112 Mo. 463; Moore v. Gaus & Son Mfg. Co., 113 Mo. 98-107; C. H. Robinson Co. v. Frizzell, 132 S.W.2d 1049-1052. (5) Regardless of the rule, appellant in this case is in no position to complain of the court's alleged error in overruling its motion to elect, because appellant has not saved the point for review. Pennawfsky v. Coerver, 205 Mo. 135; Thompson v. Carr, 143 Mo.App. 581; Graves v. Dakessian et al. (Mo.), 132 S.W.2d 972-73. (6) Furthermore, the alleged action of the court resulted in no prejudice to appellant, because the evidence offered was the same to support both counts, and a case should not be reversed unless error appears materially affecting the merits of the case. Sec. 1062, R. S. Mo. 1929. (7) Sheldon v. Stevens, 79 Mo. 371; State ex rel. v. Cox, 250 S.W. 374; Chambers v. Board of Education, 60 Mo. 370-79; C. J. S., sec. 373a, p. 858; C. J. S., sec. 376a, p. 862; Welch v. Mischke, 154 Mo.App. 728; Cannon-Weiner Co. v. Boswell, 117 Mo.App. 473-76; Lipcomb & Russ v. Cole, 81 Mo.App. 53, 58; Carroll v. Hassell, 161 Mo.App. 424, 430-31; Edgar v. Crupper, 110 Mo.App. 280; S. J. Travis & Co. v. Means, 242 S.W. 164; Barnett v. Swearingen, 77 Mo.App. 64-76.
Jack O. Knehans and Oscar A. Knehans for appellant.
(1) Ehrlich v. Aetna Life Ins. Co., 88 Mo. 249; McCormick v. U. S. F. & G., 114 Mo.App. 460; Glover v. Henderson, 120 Mo. 367; Warder v. Seitz, 157 Mo. 140; Wamsganz v. Candy Co. (Mo. App.), 216 S.W. 1025; Gabrielson v. Hague Box Co., 55 Wash. 342, 104 P. 635; See also, 20 Corpus Juris, footnote on page 5. (2) State ex rel. Yeoman v. Hoshaw, 98 Mo. 358; Boyd v. Paul, 125 Mo. 9; Insurance Co. v. Owen Bldg. Co., 195 Mo.App. 371; Berryman v. Ins. Co., 199 Mo.App. 503; Banks v. Gabbert, 274 S.W. 861; Banks v. Limpp, 288 S.W. 957, 221 Mo.App. 951; Van Sant v. Commission Co., 295 S.W. 506, 221 Mo.App. 1096. (3) State ex rel. Yeoman v. Hoshaw, 98 Mo. 358, 360; Porterfield v. Surety Co., 228 S.W. 868; Gentner v. Johnson (Mo. App.), 270 S.W. 442; Bunce, Ad'mr. v. Beck, Ex'r., 43 Mo. 266. (4) Parties who make a contract have the power to modify it by a subsequent agreement, but there must be sufficient consideration for the modification to give it contractual force. The new agreement must be supported by some new consideration. Wilt v. Hammond, 179 Mo.App. 406; Lingenfelder v. Brewing Co., 103 Mo. 578, 592; McFarland v. Heim, 127 Mo. 327, 333; Patterson v. Insurance Co., 164 Mo.App. 157, 163; Merrill v. Central Trust Co., 46 Mo.App. 236, 244; Zerr v. Klug, 121 Mo.App. 286, 292; Warren v. Mayer Mfg. Co., 161 Mo. 112. (5) Promises to do or perform an act that is already obligatory on the parties, or either of them under the old contract is not sufficient to support a new contract. Dobbins v. Mortgage Co., 124 S.W.2d 1116. (6) Cole County v. Trust Co., 257 S.W. 774, 302 Mo. 222; Rail Co. v. Paragould & M. R. Co., 127 S.W. 623, 148 Mo.App. 173; Brewing Co. v. Oil Co., 226 S.W. 656, 205 Mo.App. 616. (7) Lowry v. Mining Company, 65 Mo.App. 266. (8) Barnett v. Sweringen, 77 Mo.App. 64, 71, 72; Stout v. Tribune Co., 52 Mo. 347; Plummer v. Trost, 81 Mo. 425; Lowry v. Mining Co., supra. (9) A contract of employment not mentioning the length of the time of employment was one of hire at will, which could be abandoned at any time by either party. Ogden v. Brewing Co., 248 S.W. 644.
This suit was brought by respondent, as plaintiff below, to recover from appellant, as defendant, for services alleged to have been rendered by plaintiff to defendant. A trial before the court and a jury resulted in a verdict and judgment for $ 500 in favor of plaintiff. After an unavailing motion for a new trial, defendant appealed.
Plaintiff's amended petition was in two counts. The first count alleged that, on September 25, 1932, defendant carried fire insurance on the property of one William R. Rea & Sons in Bollinger County, Missouri, in the sum of $ 3,000; that on said date, while said insurance was in effect, said property was destroyed by fire; that defendant desired to ascertain the origin of said fire, and to that end on October 19, 1932, entered into a written contract with plaintiff to investigate said fire; that by said contract it was agreed that plaintiff should have ninety days from date thereof in which to perform same, and if, as a result of his work, it was found that the fire was of incendiary origin and defendant was relieved of paying said Rea & Sons said insurance, defendant would pay plaintiff $ 500 for his services, otherwise plaintiff should be paid nothing for his services.
The first count further alleged that plaintiff immediately entered upon the duties of his said employment, but, before the expiration of the contract, it was mutually agreed between plaintiff and defendant that, in consideration of plaintiff continuing his investigation, plaintiff should have such additional time to complete his duties under the contract as to him seemed reasonably necessary; that plaintiff thereafter continued to discharge his duties under the contract, and while so doing and prior to the expiration thereof, without fault on the plaintiff's part, defendant notified plaintiff that it intended to settle its losses under said policy for a nominal sum, and that plaintiff's services were no longer needed; that defendant did settle its losses for a nominal sum and thereby prevented plaintiff from duly completing his contract, to plaintiff's damage in the sum of $ 500, for which amount plaintiff prayed judgment.
The second count was in quantum meruit. It contained the same general allegations as in the first count with respect to the making of the contract, the purpose thereof, performance of duties by plaintiff thereunder, the mutual extension of the time thereof for performance, and the prevention by defendant of plaintiff's full performance, and concluded with the allegation that the reasonable value of plaintiff's work and services which he performed for defendant and which were utilized by defendant was $ 500, for which amount plaintiff prayed judgment.
Defendant's answer to the first count of plaintiff's amended petition admitted that defendant entered into the written contract with plaintiff as alleged in plaintiff's amended petition, but denied that plaintiff immediately entered upon the duties of his employment; denied that plaintiff performed said duties, or any of them; denied that, before the expiration of the contract, it was agreed that plaintiff should have additional time to complete his duties thereunder; denied that plaintiff was discharged by defendant without just cause; and denied that defendant prevented plaintiff from completing the performance of his duties under said contract. Defendant alleged in its answer to the first count of plaintiff's amended petition that it was not determined within ninety days of said contract that said fire was of incendiary origin; that it was never so determined; that defendant was not relieved of paying the insurance mentioned therein, but was compelled to pay a large sum of money to the insured on account of said fire losses; that, under the terms of said written contract, defendant owes plaintiff nothing.
Defendant's answer to the second count contained denials and allegations similar to those in the answer to the first count, and further alleged that plaintiff operated under the written contract, which is set out in full by defendant in its answer to the second count. The answer concludes with allegations that defendant did not utilize or use any of plaintiff's services or work; that plaintiff's services were of no assistance and of no value to defendant in avoiding payment of said insurance or in effecting any compromise in the payment thereof.
Plaintiff's replies to the answers to both counts were general denials.
At the close of plaintiff's evidence, the court, at the request of defendant, gave the jury a peremptory instruction to find a verdict for defendant on the first count. At the close of all the evidence, the cause was submitted to the jury on the second count based upon the reasonable value of plaintiff's services, resulting, as heretofore stated, in a verdict for plaintiff in the sum of $ 500.
Plaintiff testified that after he was employed by defendant he...
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