Mansur v. Botts

• Decision Date: 31 October 1883
• Citation: 80 Mo. 651
• Parties: MANSUR v. BOTTS, Appellant.
• Court: Missouri Supreme Court

80 Mo. 651

MANSUR

v.BOTTS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Linn Circuit Court.--HON. C. BOARDMAN, Special Judge.

REVERSED.

L. T. Collier for appellant.

As the plaintiff (respondent here) sues upon an account and seeks to recover as upon a quantum meruit, for his legal services rendered in the suits mentioned in his petition, the court erred in permitting respondent to introduce evidence tending to show a special contract fixing his compensation for said services in the two suits against the sheriffs of Linn county, for the following reasons:

1. Because the special contract disclosed by the testimony constitutes a different cause of action from that alleged in the petition, and requires other and different proof to sustain the same. 2. Because said testimony in relation to a special contract, was in contradiction of the allegations of the petition, and set up a new and distinct cause of action. 3. Because said testimony as to a special contract tended to mislead the jury as to the real issues in the cause, and to exert an improper influence upon them in making up their verdict. In support of the proposition here laid down, appellant cites the following authorities: Stollings v. Sappington, 8 Mo. 119, and authorities therein cited; Chambers v. King, 8 Mo. 319; Butcher v. Death, 15 Mo. 275; Link v. Vaughan, 17 Mo. 586; Duncan v. Fisher, 18 Mo. 403; Beck v. Ferrara, 19 Mo. 30; Pullis v. Sims, 34 Mo. 249; Bank v. Armstrong, 62 Mo. 65; Boone v. Stover, 66 Mo. 436; Lampkin v. Collier, 69 Mo. 173; Carson v. Cummings,69 Mo. 332; Faulkner v. Faulkner, 73 Mo. 335. The court erred in giving instructions numbered three and four, asked by respondent, and in refusing to give number seven for appellant.

A. W. Mullins for respondent.

The lower court did not err in admitting the evidence of the plaintiff with respect to a special contract between him and defendant, for the compensation plaintiff was to receive for his services in the two sheriff cases, nor in refusing defendant's demurrer to the evidence, at the close of plaintiff's testimony. Stout v. St. Louis Tribune Co., 52 Mo. 342; Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai, etc., 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Dutro v. Walter, 31 Mo. 516; Wood on Master and Servant, pp. 352, 353, 355; Dermott v. Jones, 2 Wall. 1; Chesapeake & Ohio, etc., v. Knapp, 9 Pet. 541; 2 Smith L. C., top pp. 23, 38, 39, 44; Felton v. Dickinson, 10 Mass. 287; Knight v. Co., 2 Cush. 271; Kelley v. Phelps, 57 Wis. 425. Plaintiff was entitled to recover for his services upon a quantum meruit, notwithstanding the cases resulted unfavorably to Botts. Wood on Master and Servant, pp. 352, 353; Rose v. Speise, 44 Mo. 20. The court committed no error in refusing appellant's instruction number seven, as there was no evidence to base it on. The amount found by plaintiff fell below the sum to which he would have been entitled, had the special contract been taken as a basis with respect to the sheriff cases. Upon the whole record, the judgment is right and should be affirmed.

PHILIPS, C.

This is an action in assumpsit by plaintiff, Mansur, to recover for services as an attorney at law rendered by him to defendant, in three suits in the Linn circuit court. The action is in form as for a quantum meruit, accompanied with an itemized account.

The answer, after denying the allegations of the petition, except as thereinafter admitted, avers that the suits for which plaintiff sues for services, were brought at the instance of plaintiff, and that he agreed to attend to the same, as an attorney, on condition that, if he did not succeed in realizing the money sought to be recovered in some one of them, he would not charge the plaintiff anything for his services. That the plaintiff failed to recover judgment in either of the said cases. It is then further alleged that the failure therein was occasioned by the default, negligence and unskillfulness of plaintiff as such attorney. By way of counter-claim, the defendant asked judgment against plaintiff on a note executed by plaintiff to defendant, dated August 14th, 1875, for $104.90, with ten per cent interest thereon from date, to be compounded if not paid annually. The reply was a general denial of all the allegations of the answer.

On the trial of the cause before a jury, the plaintiff, against the objection of the defendant, was permitted to testify to a special contract in respect of his services in two of said actions. As to one of said suits the plaintiff's testimony tended to show that he attended to it at the request of defendant, without any stipulation as to the amount of his fee. Plaintiff gave evidence as to the reasonable value of his services in all of the cases.

The defendant, at the close of plaintiff's case, asked the court to instruct the jury as follows: “It appearing from the testimony of the plaintiff that there was a special contract between plaintiff and defendant, as to compensation for plaintiff's services in the two suits brought against Brott and Chesround, and this suit being brought on account, or quantum meruit, the plaintiff cannot recover in this action as to said two suits.” The court refused to so instruct the jury, and the defendant excepted. The defendant's evidence tended to support the issues tendered in the answer. The note executed to him by defendant, set up as a counter-claim, was read in evidence, and corresponded with the plea. The jury found for the plaintiff in the sum of $50, in addition to the amount of the note due from plaintiff to defendant, for which judgment was accordingly rendered. Defendant has brought the case here on appeal.

I. The principal question discussed by counsel in their briefs is, as to whether the court erred in permitting proof by plaintiff of the special contract. Defendant contends that it was a clear departure from the issues tendered in the pleadings; that the action being on an account, as for a quantum meruit, it, in effect, said there was no special contract as to any part of the services rendered. It is a rule of the common law long established, that indebitatus assumpsit will he to recover the stipulated price due on a special contract, where the contract has been fully executed, and it is not necessary in such case to declare upon the special contract. Bank of Columbia v. Patterson, 7 Cranch 333. In Chesapeake & O. C. Co. v. Knapp, 9 Pet. 565, Mr. Justice McLean very succinctly stated the rule thus: “There can be no doubt that where the special contract remains open the plaintiff's remedy is on the contract, and he must set it forth specially in his declaration. But if the contract has been put an end to, the action for money had and received lies to recover any payment that has been made under it. * * But if the contract remain open, the plaintiff's demand for damages arises out of it, and then he must state the special contract, and the breach of it. It is a well settled principle, where a special contract has been performed, that a plaintiff may recover on the general counts.” So in Dermott v. Jones, 2 Wall. 9, Mr. Justice Swayne says: “While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the payment of the price, he may sue on the contract, or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.” This may be considered as the generally accepted doctrine. Felton v. Dickinson, 10 Mass. 292; Knight v. New Eng. W. Co., 2 Cush. 271. Nor can it be maintained, as suggested, that there is anything in the provisions of our code of practice which renders the rule inapplicable in this State. For in Stout v. St. Louis Tribune Co., 52 Mo. 347, this court declared the common law rule in all its force, as above stated. This point is, therefore, ruled against the appellant.

II. But, the plaintiff having...