Koslosky v. Bloch
| Decision Date | 14 June 1915 |
| Parties | LOUIS KOSLOSKY, et al., Respondents, v. LEON BLOCH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
H. H McCluer and Chas. A. Loomis for appellant.
Ben R Estill for respondents.
--Defendant Bloch held a deed of trust given to a trustee to secure a debt of $ 625 due to Bloch from plaintiffs. Bloch was proceeding to foreclose the deed of trust and plaintiffs sued out an injunction, forbidding a foreclosure and asking a cancellation on the ground that the debt had been satisfied. The trial court found there was due Bloch a balance of $ 53 which plaintiffs thereupon tendered to him and on his refusal to accept, paid it into court. A decree was then entered for plaintiff and the costs assessed against defendant. Bloch then appealed.
It appears that plaintiffs desired to build some apartment houses on ground owned by them in Kansas City and which was encumbered with a mortgage for $ 6500. They were unfortunate with the building, in that while they paid contractors, the latter did not pay for labor and material and the consequence was that various liens were filed against the building and plaintiffs bid fair to lose it and their money, too. In this situation they secured the service of Bloch to do for them the best he could towards relieving them of their difficulties by way of defending, settling and compromising lien claims and obtaining additional loans with which to complete the building. Their contract with Bloch was in writing, expressing fully and clearly his obligation to perform that service for which they were to pay him $ 625. He immediately proceeded with the business. He made an arrangement whereby the mortgage then on the property was cancelled and a new one placed for $ 8000 and a second for $ 5000. Plaintiffs had paid Bloch $ 125 in cash and now gave him a note for $ 500 with a third deed of trust (the one now in controversy) to secure it.
Bloch then compromised or settled all the claims against the building except one, known as the Wilson Lumber Company claim for $ 862. That company refused to compromise and that sum was left with the agents who had furnished plaintiffs the money and taken the first and second mortgages, so that their principal would be safe in case the Wilson Company maintained its lien. It was then concluded to contest the lien, and it was defeated in court. This defense of the Wilson Company claim was made the excuse or basis for another contract which Bloch signed shortly, perhaps a month, after the first one, in which they agreed to pay Bloch one-half of the Wilson Company claim if he defeated the case in toto, or one-half of whatever he reduced it. The contract further authorized Bloch "to appoint such other attorney, or attorneys, as may be necessary, or as he may deem proper."
This case turns on the legal force of the last contract; for it was shown that various payments were made to Bloch which he testified he applied to the payment of what he claims was due him under the last contract, whereas plaintiff insists they owed nothing on that contract and that the payments were made on what was owing him on the first contract. The ground of plaintiff's contention that the last contract had no legal force is, that it was wholly without consideration, for the reason that it was an agreement to pay him again for what he was already obliged to do by the first contract. On the other hand, Bloch claims it is valid as being a substitution for the first contract, and that in substituted contracts, the substitution itself is a consideration; and that is the law. [Carman v. Harrah, 182 Mo.App. 365, 376, 170 S.W. 388; Smith v. Crane, 169 Mo.App. 695, 154 S.W. 857; Pottery Co. v. Folckner, 131 Mo.App. 105; Pressed Brick Co. v. Barr, 76 Mo.App. 380; Cannon Co. v. Boswell, 117 Mo.App. 473, 93 S.W. 355.]
But, it only requires a glance at the two contracts to see that the agreement in the second--the defense of the Wilson lumber company claim--was precisely what he agreed to do in the first. In the first, it is recited that etc.
The second contract was by no means a substitution for the first. It was merely an attempt to fix an additional charge for performing one of the...
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