Shockey v. Westcott
| Citation | 53 S.E.2d 17,189 Va. 381 |
| Court | Virginia Supreme Court |
| Decision Date | 25 April 1949 |
| Parties | SHOCKEY. v. WESTCOTT |
Error to Circuit Court, Fairfax County; Paul E. Brown, Judge.
Action of covenant by Harry A. Shockey against Milton R. Westcott for breach of a contract for payment of an attorney's fee. To review the judgment, plaintiff brings error, and defendant brings cross-error.
Judgment affirmed.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
Robert A. Hutchison, of Manassas, and Charles Pickett, of Fairfax, for plaintiff in error.
John Barton Phillips, of Alexandria, for defendant in error.
The defendant in error, Milton R. Westcott, was defendant below and will be hereinafter so called. In 1940 he was the owner of an 80% interest in the Westcott Nursery Company. A receivership suit was then pending in the circuit court of Fairfax County involving certain claims against the company, and a receiver had been appointed to take possession of and operatethe business. The plaintiff, Harry A. Shockey, was a practicing attorney at law and the defendant engaged him to represent his interest in the receivership suit. A written contract of employment was entered into on May 3, 1940. A part of the compensation of the plaintiff consisted of a retainer fee of $5000, evidenced by a note payable upon the termination of the receivership and secured by a lien upon certain property of the defendant. The contract also contained the following provisions: "After the settlement of the said suit and the claim of the party of the first part is established, the party of the first part agrees to pay to the party of the second part a fee commensurate with the services rendered and the results accomplished, taking into consideration the value of said nursery, * * *."
After the discharge of the receiver, there was added to the contract the following written addendum dated August 2, 1941: "It is mutually agreed between Harry A. Shockey and Milton R. Westcott, the parties to the above contract for fee dated May 3, 1940, that this agreement shall become a part thereof, and that the total fee shall be Fifteen Thousand Dollars together with the furnishing and planting of nursery stock to be selected by Harry A. Shockey on the following premises: 6255 Lee Highway, 411 Lee Boulevard, 914 North Taylor Street, 1601 North McKinley Road, 2606 North 11th Street, and 6414 17th Street, North."
The principal question involves the interpretation of the words contained in the addendum: " * * * together with the furnishing and planting of nursery stock to be selected by Harry A. Shockey." In the year 1946, about five years after the signing of the addendum, the plaintiff selected a considerable quantity of shrubbery for two of the properties specified, which defendant furnished and planted, the value being about $250.
In the spring of 1947, the plaintiff telephoned to the defendant and asked him to recommend a landscape architect, but according to defendant's testimony, he did not indicate that he intended to employ an architect for the purpose of guiding the defendant in furnishing and planting nurs ery stock for the lawn and grounds at plaintiff's home. The plaintiff testified, however, that he did indicate that purpose. He employed the architect recommended by the defendant and had him prepare an elaborate blueprint or plan for landscaping the property. After the blueprint was completed, he supplied the defendant with a copy of it and requested that he proceed to do the work and furnish the nursery stock therein called for. The architect's plan went far beyond the furnishing and planting of nursery stock. It also required the removal of 61 trees and plants, which were then growing on the plaintiff's property. There were to be relocated and replanted with a ball of earth around the roots of each of them. In addition, the plan called for the furnishing and planting of 2401 new trees and shrubs of various sizes.
The defendant rejected the plaintiff's request that he provide the material and work called for by the plan. He testified: Defendant also testified: "We don't do jobs like that and never have done jobs like that."
The plaintiff then instituted this action of covenant to recover $25,000 damages for the defendant's alleged breach of the contract.
The trial of the case resulted in a verdict for the plaintiff for $5000. The plaintiff moved the court "to set aside the verdict as inadequate and enter judgment for the sum of $24,800, being the minimum amount the evidence shows plaintiff is entitled to recover."
On the other hand, the defendant moved "that the verdict be set aside as contrary to the law and evidence on the ground that there isn't any evidence that would support that verdict of $5000."
No evidence was introduced by either party respecting the actual services rendered by the plaintiff, or their value.
The court overruled both motions and entered judgment on the verdict in favor of the plaintiff.
The plaintiff specifies nine assignments of error, but they all involve and are predicated upon the action of the trial court in permitting the introduction of parol evidence to explain the defendant's understanding of the meaning of the phrase contained in the addendum to the contract, "together with the furnishing and planting of nursery stock to be selected by Harry A. Shockey." It is the contention of the plaintiff that this language is clear, complete, and unambiguous; that in plain and unmistakable terms it means "that the plaintiff was to 'select' and the defendant was to 'furnish and plant' the nursery stock so selected at the designated places." The trial court took the view, however, that the plaintiff in his own testimony had undertaken to explain the meaning of the addendum to the contract and what occurred at and before the time it was signed, and the defendant had the right to give his version of the matter. Plaintiff contends that this testimony was elicited from him by defendant's counsel on cross-examination, and therefore did not open up the door for additional evidence of a similar nature. But he testified on direct examination by his own counsel that, when he wrote the addendum, he left a blank space to be filled in to designate the amount of the fee, and that the defendant himself had inserted the words "fifteen thousand dollars." Upon cross-examination the plaintiff was asked the question: "Then why was the $15,000 written in by him" the defendant? It will be observed from his testimony, which we will set out at some length, that the plaintiff did not confine himself to matters which were responsive to the question propounded to him. Instead, he went far afield and explained that "the great discussion was at that time that he had no money, which he didn't have, and he said, 'I do have nursery stock, ' and he said, 'I can plant nursery stock around your properties, ' and he said, 'I haven't much money at this time.'
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