Hudson v. Rodgers
| Decision Date | 11 December 1906 |
| Parties | HUDSON et al., Respondents, v. RODGERS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
REVERSED AND REMANDED.
Judgment reversed and the cause remanded.
Jacob Oppenheimer for appellant.
(1) (a) Whether a contract purporting to be based upon correspondence was or was not actually consummated is a question for the court and not for the jury. Wire Mfg. Co. v Broderick, 12 Mo.App. 378; Botkin v. McEntire, 81 Mo. 557; Whedon v. Ames, 28 Mo.App. 243; James v. Bottle Co., 69 Mo.App. 207. (b) Where a contractual right once comes into existence, mere letters or notices from one of the parties cannot change or affect the status of the parties under the contract. Welsh v Guaranty Fund Life Society, 81 Mo.App. 37. There must be a new and independent arrangement actually assented to. Moomaw v. Emerson, 80 Mo.App. 318; Sutter v. Roeder, 149 Mo. 297. (2) An instruction is error which assumes the existence of controverted facts. Wright v. Fonda & Higgins, 44 Mo.App. 634; Shoe Co. v. Hilig, 70 Mo.App. 301; Harvey v. Slater, 71 Mo.App. 68. (3) There can be no recovery upon an implied contract, unless under circumstances where a promise may be, in fact, implied. Bank v. Aull, 80 Mo. 199; Mansur v. Murphy, 49 Mo.App. 266; Medlin v. Brooks, 9 Mo. 109; 15 Am. and Eng. Ency. of Law, pp. 1078, 1079; Zottman v. San Francisco, 81 Am. Dec. 96; Lawson on Contracts (2 Ed.), sec. 43, and cases cited. And where there is an express contract the law will not raise an implied promise. Clark v. Kane, 37 Mo.App. 258; Houck v. Bridwell, 28 Mo.App. 644; Scuts v. Taylor, 20 Mo.App. 166; 15 Am. and Eng. Ency. of Law, pp. 1078, 1079; Bank v. Packing Co., 4 Mo.App. 215. In any event, whether or not there may be implied a contract in fact to pay the reasonable value for the alleged use of plans and specifications is, upon a proper showing, a question for the jury. Lillard v. Wilson, 178 Mo. 145; Whaley v. Peake, 49 Mo. 80; Hart v. Hart's Adm'r, 41 Mo. 441. Here the attempted use of the plans and specifications after breach of contract not only could not raise an implied promise to pay therefor, but could not even constitute a waiver on the part of appellant to sue for the breach. The waiver must be voluntarily and on a consideration. Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 64; Cox v. Long, 69 N.C. 7; 22 Am. and Eng. Ency. of Law, pp. 1095, 1097.
W. B. Homer for respondents.
The court should have instructed the jury that appellant had failed to prove the written contract alleged in the answer. There was no error in the court giving for appellant instruction numbered 4. Williams v. Porter, 51 Mo. 443; Griffith v. Gilliam, 31 Mo.App. 33; Fulkerson v. Lynn, 64 Mo.App. 653; Fairbanks v. Baskett, 98 Mo.App. 53; Steam Laundry Co. v. Ins. Co., 151 Mo. 90.
--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 the Louisiana Purchase Exposition or World's Fair, held in St. Louis in 1904, and wished to erect a building for the purpose. Defendants' notion of the kind of building which would be appropriate, was a colossal horse more than a hundred 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 theatre 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 one hundred to one hundred and twenty thousand dollars. 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 guarantee that it could be. This amount was discussed, because, after defendant had talked with other concessionaires 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 two thousand dollars. 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 first 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 one hundred thousand dollars. 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 theatre 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 two thousand dollars, payable in four installments of five hundred dollars 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 thirty and sixty 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 plaintiff's favor and judgment having been entered accordingly, this appeal was taken.
The errors assigned relate to rulings on the instructions presented by the parties, which are too numerous to be quoted at length, but will be referred to, as far as seems necessary, in reviewing the legal propositions involved. The main defense is that no contract was made prior to the letter of August 10th, and that as said letter recited certain terms and was received by plaintiffs and left unanswered, it was in effect, assented to by them as the contract between the parties and, therefore, plaintiffs could not recover except by proving the plans and specifications prepared by them were in accordance with its terms. In instructing the jury the court below did not assume that a contract either had or had not been made orally on July 26th, or that the letter of August 10th, constituted the true contract between the parties. In instructions given for both parties said letter was treated as not conclusive concerning the terms of the contract if the jury found from the subsequent correspondence, that both parties did not regard it as binding or its terms "were not strictly adhered to by both parties." Though plaintiffs requested instructions of that tenor, they did so only after the court had given instructions for defendant and had rejected the theory of plaintiffs' counsel that as the letter was not signed by plaintiffs, or its terms formally accepted, it did not express the agreement of the parties but that the contract on which the case turned was entered into orally on July 26th. The testimony shows without conflict or inconsistency, that Weatherwax and Rodgers definitely agreed on the date...
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