Hudson v. Rodgers

• Decision Date: 11 December 1906
• Citation: 98 S.W. 778,121 Mo. App. 168
• Parties: HUDSON et al. v. RODGERS.
• Court: Missouri Court of Appeals

98 S.W. 778

121 Mo. App. 168

HUDSON et al. v. RODGERS.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

1. CONTRACTS — EXECUTION — ORAL AGREEMENT.

Where the testimony of the parties showed the making of an oral contract, the intention to subsequently reduce such contract to writing did not hinder it from taking effect at the time it was made, unless it was intended that the execution of a written instrument should be a condition precedent to the taking effect of the contract.

2. SAME — EVIDENCE — ADMISSIBILITY.

Where parties made a complete oral agreement, intending to reduce it to writing subsequently, a letter suggesting the terms of the contract, but not shown to have been accepted, was admissible as evidence of the terms of the agreement.

3. SAME — ACTIONS — INSTRUCTIONS.

In an action to recover fees alleged to be due plaintiffs as architects, the court instructed that, though plaintiffs agreed to make plans for a structure to cost not more than $75,000, but defendant made use of the plans actually prepared, which required greater expenditure, in erecting a building at a sum in excess of $75,000 plaintiffs were entitled to recover the value of the plans. The basis for the instruction was statements in letters from defendant to plaintiffs that he was trying to induce capitalists to invest with him in a building to cost $100,000. Held, that such use of the plans was not conclusive evidence of a waiver of the contract, and the instruction was erroneous as selecting one unconclusive fact and predicating a waiver on it, tending to give it undue importance.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Harry F. Hudson and others against Albert R. Rodgers. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Jacob Oppenheimer, for appellant. W. B. Homer, for respondents.

GOODE, J.

Action to recover fees alleged to be due plaintiffs as architects for the preparation of plans and specifications for a structure to be erected on the Pike, a street in the Louisiana Purchase Exposition grounds in St. Louis. Rodgers, the defendant, is the owner of a horse trained to do acts exhibiting unusual intelligence. At the time the contract in controversy was made he intended to exhibit the horse at Louisiana Purchase Exposition or World's Fair, held in St. Louis in 1904, and wished to erect a building for the purpose. Defendant's notion of the kind of building which would be appropriate was a colossal horse, more than 100 feet high and of other dimensions on the same scale, to be constructed mainly of steel and wood. This structure was to have an audience room or theater inside the body of the horse, where the exhibition would be given, moving stairways, elevators, various other conveniences, and a highly ornamented entrance and exterior. Defendant contemplated an outlay of from $10,000 to $120,000. Having met one of the plaintiffs at the Charleston Exposition, he consulted said plaintiff on arriving in St. Louis, and was referred by him to another member of the firm, Mr. Weatherwax, with whom the negotiation for the employment of plaintiffs occurred. Defendant unfolded his notion of the building to Mr. Weatherwax, and, according to the testimony of the latter, was told such a structure probably could be erected for $75,000, though plaintiffs would not guaranty that it could be. This amount was discussed, because, after defendant had talked with other concessionaries who were intending to exhibit on the Pike, he changed his intention regarding the amount to be invested in the building. Weatherwax and Rodgers came to an agreement by which the plaintiffs were to prepare plans and specifications for the proposed structure and superintend the erection of it for a fee of $2,000. Their agreement was oral, but it was understood Weatherwax should prepare a written instrument containing the stipulated terms and send the instrument to Rodgers in New York, whither he was going, to be signed. The negotiation was finished July 26, 1903, and Rodgers immediately departed for New York. The correspondence between the parties shows plaintiffs set about preparing the plans and specifications at once and continued to work on them until they were completed. This happened in due time — that is, by September 1st — when, according to the agreement, the plans were to be ready for submission to contractors, who might wish to bid for the erection of the structure. It was the intention of Rodgers to be in St. Louis by that date and attend to the letting of bids; but he had an exhibition in progress in Boston which required his attention and prevented him from coming to St. Louis until November. For this reason bids for the work were not received until about the middle of November, when all the bids submitted were for a price in excess of $75,000. There was evidence to show that between the 1st of September and November the price of labor and material for use in the erection of buildings on the World's Fair grounds advanced considerably on account of strikes by labor unions and other causes, and that if the contract for the erection of defendant's house had been let September 1st, as was intended, it could have been built at a cost of no more than $75,000. When defendant found he could not come to St. Louis in September, he had the plans and specifications sent to him, and wrote several times that he was trying to arrange with eastern capitalists to build a structure to cost not less than $100,000. Weatherwax neglected to have a writing prepared setting forth the agreement, and on August 10th Rodgers wrote plaintiffs a letter, in which he stated that he engaged them as architects to prepare the plans and specifications for the contemplated building. The letter went into details about the different parts of the colossal horse for which the plans were to be drawn, stating the form of entrance, the living rooms and theater desired, that there should be a roof garden on top, and various other particulars, and saying the entire cost, including furnishings, should not exceed $75,000. The letter stated plaintiffs' fee was to be $2,000, payable in four installments of $500 each, the first to fall due on the passing of the contract "by Mr. Gregg and his committee on plans and signing of the contract." The second installment was payable when finished plans, drawings, and color sketches were ready, and the other two installments in 30 and 60 days thereafter. No reply was made to this letter, nor was it alluded to in the subsequent correspondence between the parties. Defendant finally abandoned building the structure for which the plans were prepared, and, having refused to pay plaintiffs for their work, this action was brought to recover quantum meruit the value of their services. A verdict for $1,400 was returned in plaintiffs' favor, and,...