Kline Cloak & Suit Co. v. Morris
| Decision Date | 07 April 1922 |
| Citation | 240 S.W. 96,293 Mo. 478 |
| Parties | KLINE CLOAK & SUIT COMPANY v. A. F. MORRIS and SOUTHWESTERN SURETY INSURANCE COMPANY, now known as SOUTHERN SURETY COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court: -- Hon. Daniel E. Bird, Judge.
Affirmed.
Guthrie Conrad & Durham, J. Harold Olson and Hale Houts for appellants.
(1) The court erred in referring the case and in overruling the motions to set aside the reference. (a) The petition did not present a case for reference under the statute. R. S. 1909 sec. 1996; Browning v. Ry. Co., 224 S.W. 748; Ice Co. v. Tamm, 138 Mo. 385; Reed v Young, 248 Mo. 606; Invest. Co. v. Jones, 187 S.W. 71; Thornton v. Life Assn., 7 Mo.App. 544. (b) Issue was joined by the defendants on the petition, defendants disputing the entire claim, pleading accord and satisfaction. The case was therefore not made one for reference by reason of the counterclaim of one of the defendants pleaded in addition to the defense of accord and satisfaction. 23 R. C. L. 291; Steck v. C. F. & I Co., 142 N.Y. 236; Snell v. Paper Mills, 86 N. E. (N. Y.) 460; Sec. 28, Art. 2, Sec. 8, Art. 13, Mo. Constitution; R. S. 1909, sec. 1996; R. S. 1855, sec. 13; Johnson v. Pump Co., 274 Mo. 436; Empire Trans. Co. v. Boggiano, 52 Mo. 294; Grayson v. Weddle, 80 Mo. 42; Buckner v. Land Co., 190 S.W. 420. (2) Regardless of whether either the petition or the counterclaim stated a long account the court erred in referring the case until a jury passed upon the issue of accord and satisfaction pleaded by defendants, and erred in overruling motion of defendants for trial of this issue by a jury. 23 R. C. L. 290; Kansas City v. Smith, 238 Mo. 336; Malone v. Church, 172 N.Y. 278; Hill v. Reynolds, 189 N.Y. 558; Post v. Van Sielen, 117 N.Y.S. 554; Star v. Selleck, 122 N.Y.S. 1054; E. Clemens Horst Co. v. Stocker, 119 N.Y.S. 372; Bank of Tarbow v. Fidelity & Dep. Co., 35 S. E. (N. C.) 588; Atlantic v. Morrison, 82 N.C. 141. (3) The evidence established an accord and satisfaction as between plaintiff and defendant Morris. Judgment should have been in favor of defendants on plaintiff's petition. (a) Accord and satisfaction was shown to have been agreed upon for valuable consideration and acted upon by the parties. Pollman Coal Co. v. St. Louis, 145 Mo. 651; Oil Well Supply Co. v. Wolfe, 127 Mo. 616; Bahrenburg v. Fruit Co., 128 Mo.App. 536. (b) Morris being released, the surety company was of course released. Hempstead v. Hempstead, 27 Mo. 187; State to use v. Coste, 36 Mo. 438; Stolze v. Fidelity & Guaranty Co., 153 Mo.App. 29. (4) Even should it be held that there was no accord and satisfaction, appellants should be credited with the value of the ornamental iron and lumber not taken into consideration by Morris in making his bid and which the respondent agreed to pay Morris in addition to the contract price. The evidence clearly established the mistake and it being called to the attention of respondent before the work was commenced and when the parties, at least when respondent, could be put in status quo, Morris was entitled to a rescission if not to reformation. This right, coupled with respondent's necessity to have the work done promptly, furnished ample consideration for respondent's modification of the contract and promise to allow Morris the value of items overlooked by him in addition to the contract price. Norton v. Bohart, 105 Mo. 615; Miller v. Brick Co., 139 Mo.App. 25; Goodin Mer. Co. v. Organ, 186 S.W. 589; Moffat v. Rochester, 178 U.S. 373. (5) By the undisputed evidence and findings of the referee which stand unchallenged, Morris's contract with respondent was altered in a manner not in said contract authorized, to-wit, extras and alterations were agreed upon and performed without the written order of the architect countersigned by respondent. This constituted a breach by respondent of the contract secured by the bond and the changing of the obligation of the surety, and the surety company was thereby released from the bond. Burns v. Wolfs, 116 Mo. 179; Evans v. Graden, 125 Mo. 79; Lumber Co. v. Gates, 89 Mo.App. 201; Eldridge v. Fuher, 59 Mo.App. 44; Killoren v. Meehan, 55 Mo.App. 427; Burns Estate v. Fidelity & Dep. Co., 96 Mo.App. 471; Chapman v. Eneberg, 95 Mo.App. 132; Neuwirth v. Moydell, 188 Mo.App. 467; Reissaus v. Whites, 128 Mo.App. 147. (6) The court erred in sustaining referee's finding and allowance as to attorneys' fees and giving judgment therefor. (a) The sum of $ 2500 on the evidence was a wholly unreasonable allowance for attorneys' fees. There was no differentiation or division of services and therefore there was no evidence as to the nature or value of services sued for. Plaintiff was of course bound by allegations of its petition and could not recover in excess of the amount claimed. Hall v. Coal & Coke Co., 260 Mo. 323; Pinney v. Berry, 61 Mo. 366; Slaughter v. Railroad, 116 Mo. 275. (b) Under plaintiff's petition it was entitled to recover attorneys' fees only in connection with the payment of the sum of $ 8,000 paid by it over and above that with which it claimed the contractor was entitled to be credited. (7) The court erred in overruling defendant's exceptions to the report of the referee disallowing appellant Morris's counterclaim. Under the evidence appellant Morris was entitled to recover part or all of the amount asked for in his counterclaim.
J. Sydney Salkey and J. C. Rosenberger for respondent.
(1) The court properly referred the issues to a referee. (a) By the failure of defendants to file a term bill of exceptions, the order of reference is not open to review. Smith v Baer, 166 Mo. 401; State ex rel. v. Ice Co., 246 Mo. 198; Dean v. Railroad, 229 Mo. 439. (b) The motion to vacate the reference, filed after most of the evidence had been heard by the referee, after plaintiff had rested its case before the referee, and after defendants had introduced proofs, and the motion for a jury trial after the referee had filed his report, came too late, were properly overruled, and moreover were not preserved by any term bill of exceptions. State ex rel. v. Ice Co., 246 Mo. 198; Smith v. Baer, 166 Mo. 401; Young v. Powell, 87 Mo. 130. (c) Nor is the necessity of filing a term bill of exceptions done away with by the Act of 1911, which permits the bill of exceptions taken during the trial to be filed on or before the date on which appellant must serve his abstract of the record. Laws 1911, p. 139. That act expressly relates only to "such exceptions" as are mentioned in Sec. 2028, R. S. 1909, namely exceptions taken "in the progress of any trial." The Act of 1911 has no relation to exceptions taken to rulings made prior to the trial; these must still be saved by a term bill in order to be preserved. State ex rel. v. Gill, 220 S.W. 980; Kean v. Schnedler, 92 Mo. 524; Barber Asphalt Co. v. Ulman, 137 Mo. 564; Paige v. Shoe Co., 103 Mo.App. 662. (d) Appellants contend that, conceding that the case involved the examination of a long account, there were other issues in the case, such as an alleged "accord and satisfaction," to which they, as it is claimed, were entitled to a trial by jury and which should have been first tried and determined adversely to them before the case was sent to the referee to state the accounts, and in support of this contention they cite certain New York cases. The same contention has been made and held to be without merit by this court. Smith v. Baer, 166 Mo. 402. (e) The petition alone does not determine whether a cause is referable as involving a long account; the question of referability is determined by the issues raised by all of the pleadings, those of the defendant as well as those of the plaintiff. Johnston v. Pump Co., 274 Mo. 414; McCormick v. St. Louis, 166 Mo. 315; St. Louis to use v. Parker-Washington Co., 271 Mo. 229; Smith v. Haley, 41 Mo.App. 611; Briscoe v. Kinealy, 8 Mo.App. 76, 78; Kenneth Inv. Co. v. Black, 96 Mo.App. 125. (2) The findings of the referee that there had been no accord and satisfaction should not be disturbed. (3) It is insisted that Morris was released from his contract for that in making his bid he made a mistake by omitting to figure on lumber and iron, and that after he had torn down the old buildings on the Walnut Street side, he informed plaintiff's manager, Clark, of his alleged mistake and asked to be let out of his contract, and that Clark told him to go ahead with the work and that plaintiff would pay for his iron and lumber, amounting to about $ 8,000. The mere fact, if it be a fact, that Morris made a mistake in his bid, would not relieve him of his contract, even if the evidence had not shown that the mistake was due solely to his own carelessness, for which plaintiff in no wise was responsible. Such mistake would be purely unilateral or one-sided, and conferred no rights on Morris, legal or equitable. Mistake by one party to a contract, not induced or contributed to by the acts of the other party, furnishes no ground for the rescission or cancellation of a contract, even in equity, and hence would furnish no consideration for a promise by the other party to relieve him from such mistake. 9 Cyc. 394-395; 6 R. C. L. 623; Vallentyne v. Land Co., 95 Minn. 195; Spellman v. Delano, 187 Mo.App. 119; Penn v. Brashear, 65 Mo.App. 24; Matthews v. City of Kansas, 80 Mo. 23; Miller v. Ry. Co., 162 Mo. 424; Meek v. Hurst, 223 Mo. 696; Payne v. O'Shea, 84 Mo. 129. (4) The contention of the Surety Company that it was discharged as surety by reason of the doing of extra work and the making of alerations without previous written orders signed by the architect, is wthout merit. (a) The Surety Company expressly agreed by its bond that it should not be released, and that its liability should not be affected or impaired,...
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