Simmons v. Globe Printing Company

• Citation: 209 S.W. 130,201 Mo.App. 133
• Parties: ALICE SIMMONS, Administratrix of the Estate of H. J. SIMMONS, Deceased, Appellant, v. GLOBE PRINTING COMPANY, Respondent
• Decision Date: 04 February 1919
• Court: Court of Appeal of Missouri (US)

209 S.W. 130

201 Mo.App. 133

ALICE SIMMONS, Administratrix of the Estate of H. J. SIMMONS, Deceased, Appellant, v. GLOBE PRINTING COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

February 4, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.

AFFIRMED.

Judgment affirmed.

John T Barker and Charles & Rutherford for appellant.

(1) The courts favor a compromise and settlement of disputed claims. Mateer v. Railway, 105 Mo. 354; Kronenberger v Bing, 56 Mo. 212; Buffington v. South Mo. Lbr Co., 25 Mo.App. 492; Haydon v. Railroad, 117 Mo.App. 76; Dalpine v. Lune, 145 Mo.App. 549. (2) It is not necessary, in order to establish an accord and satisfaction, that there should be any formal acceptance of an offer of compromise. It is sufficient if the party to whom the offer is made evidences in any way his intention to accept the offer. Such intention may be shown either by word or letter, or it may be implied from his acts. 8 Cyc, 514; Cunningham v. Patrick, 136 Mo. 621, 632; Howell v. Bush, 54 Miss. 437; Jones v. Parker, 51 Wis. 218; Walters v. Walters, 73 Ind. 425; Sledge v. Oberchain, 58 Miss. 670; Parker v. Kingman, 11 Iowa 219; Curtis v. Brown, 63 Mo.App. 438-9. An accord may become executed, not only by the present payment of a sum of money, but also by the making of an obligation which the one party agrees to assume and the other party agrees to accept in lieu of the former demand. (3) There is no requirement of law that a contract of settlement should be in writing. 8 Cyc, 513; Marshall & Michel v. Larkin, 82 Mo.App. 635, 640. (4) The evidence clearly established mutuality of agreement between the parties, that is, a meeting and concurrence of mind. (5) The agreement to pay a sum of money in settlement of a claim which was unliquidated was sufficient consideration to support the contract of compromise as established by the evidence. 8 Cyc, 505; Reilly v. Chouquette, 18 Mo. 220; Pollman Coal Co. v. St. Louis, 145 Mo. 651; Wood v. Telephone Co., 223 Mo. 537; See, also, Livingston v. Dugan, 20 Mo. 102; Rinehart v. Bell, 82 Mo. 534; Faust v. Brown, 30 Mo. 414; Draper v. Owsley, 15 Mo. 637. (6) The agreement of compromise established by the evidence operated as a merger of the claim of plaintiff's intestate for damages on account of the libel. 8 Cyc, 516; Worden v. Houston, 92 Mo.App. 372; Marshall & Michel v. Larkin, 82 Mo.App. 635; Mary v. Allen, 39 Iowa 235; Hall v. Smith, 15 Iowa 584; Woodward v. Myles, 24 N.H. 289; Christie v. Craige, 20 Pa. State 430; Morehouse v. Second National Bank of Oswego, 98 N.Y. 509; Wirth v. Lacy, 125 N.Y.S. 448; Whipple v. Baker, 85 Ark. 439; Hull v. Swarthout, 29 Mich. 249. (7) Mr. Hocker was the general agent of defendant. Therefore, there is no question as to his authority to make this offer. Cross v. Santa Fe, 14 Mo. 32; See, also, 120 Wis. 336.

Jones, Hocker, Sullivan & Angert for repondent.

(1) The arrangement entered into between the deceased, Simmons, and the defendant was, at most, an accord without satisfaction. Black's Law Dictionary (2 Ed.), 16. (2) An accord without satisfaction is not enforcible at law and leaves the original cause of action in statu quo. 1 Corpus Juris, 553; Bank v. Leech, 94 F. 311; Kinney v. Brotherhood, etc., 106 N.W. 46; Goff v. Mulholland, 28 Mo. 399; Giboney v. Ins. Co., 48 Mo.App. 191; Barton Bros. v. Hunter, 59 Mo.App. 618; Vining v. Ins. Co., 89 Mo.App. 311; Gerhart Realty Co. v. Assurance Co., 94 Mo.App. 359; Slover v. Rock, 96 Mo.App. 335; Carter v. Railroad, 136 Mo.App. 719. (3) The arrangement described in the testimony was not a completed contract. The $ 5,000 mentioned was not to be paid until a release had been executed and delivered to the defendant by the plaintiff and also a waiver of attorney's liens executed and delivered by plaintiff's attorneys. Neither of these essential acts was ever performed. (4) The plaintiff Simmons, not being bound by the accord, the defendant, the other party is not bound, for lack of mutuality. 13 Corpus Juris, 331; Hudson v. Browning, 264 Mo. 65.

ALLEN, J. Reynolds, P. J., and Becker, J., concur.

OPINION

ALLEN, J.--

This is an action by the administratrix of the estate of H. J. Simmons, deceased, upon an alleged contract between said Simmons and the defendant corporation, whereby, it is alleged, the defendant promised and agreed to pay Simmons the sum of $ 5000 in settlement of an action for libel which had been instituted by him against the defendant, and which was then pending. The trial below, before the court without a jury, a jury having been waived, resulted in a judgment for the defendant, from which plaintiff prosecutes the appeal before us. The facts involved, which appear to be undisputed, are as follows:

In March, 1911, the defendant, through the columns of the Globe-Democrat, a daily newspaper published by defendant in the city of St. Louis, published an article with reference to members of the General Assembly of Missouri, of which body H. J. Simmons was then a member from Shelby County. Simmons regarded the publication as libelous to him, and accordingly instituted an action for libel against the defendant in the circuit court of Shelby County. The petition in the libel suit was signed by several counsel. Thereafter the cause went on change of venue to Knox County, and while it was there pending negotiations were had between the parties looking to a settlement of the controversy. It appears that prior to the time of the alleged contract of settlement here sued upon, the defendant, through its counsel, had offered to pay Simmons $ 5000 in settlement of the matter, but that he demanded $ 7500.

The evidence shows that on June 8, 1913 defendant's counsel, in the city of St. Louis, received a telegram from Simmons, who then resided at Kirksville, Missouri, "asking for an appointment;" and that in reply defendant's counsel telegraphed Simmons that he could see him "most any time." And pursuant to a subsequent telegram from Simmons, he and defendant's counsel met at the latter's office in the city of St. Louis, on June 10, 1913. Defendant's counsel testified, without objection, as to what occurred on that occasion. His testimony, as it appears in the record, so far as it need be set forth, is as follows:

"Mr. Simmons said: 'Well, I have about concluded to take five thousand dollars to settle my case, and I would like to get the money to-day.' I told him that it would be impossible to do that; that he had a number of attorneys in the case, and that he would have to have a release or waiver from all the attorneys before I could pay him the money, as I wouldn't have any question after it was over about my fees that lawyers might have in connection with the settlement. He assured me there would be no trouble about that, but I told him I didn't want to take a chance, but I would prefer to have the whole matter closed up at once. He seemed disappointed when I told him that. I said, 'I will prepare a form of instrument which I want you and they to sign. You can take it back with you and get these lawyers to sign it.' . . . I dictated the document to the stenographer in his presence and while she was writing it out he seemed anxious to get away and I had to persuade him to remain until it was written out by the stenographer, but he did remain and took away the document with him. He did not sign it in my office. When I gave him the document I said to him, 'It will not be necessary for you to come back here. I think I can suggest a way of handling it conveniently. After you have gotten everybody to sign it, if you will attach it to a draft for five thousand dollars and send it to me here at some bank, with authority to the bank to deliver to me the release when I pay the draft, in that way you can get the money without any inconvenience or difficulty.'"

The release prepared by defendant's counsel and given to Simmons is in form a full release and acquittance by Simmons, in consideration of $ 5000 paid to him by defendant, with an agreement on his part to settle with his attorneys; and following the place for his signature appears a paragraph to be signed by his counsel, consenting to the settlement and authorizing the payment of the money to him.

The evidence discloses that Simmons left St. Louis that afternoon on evening, and returned to Kirksville. On the following day he committed suicide. The release which had been prepared by defendant's counsel was found upon his person. He had, in the meantime, signed the instrument, but it had not been signed by any of his counsel.

Subsequently certain correspondence passed between counsel which we need not here set out. We may say, however, that after the death of Simmons, counsel who had represented him in the libel suit expressly waived all claim to any attorneys' lien upon the fund to which it is claimed the administratrix is entitled. And in this connection we may further state, whether material or otherwise, that the evidence shows that the estate of H. J. Simmons was solvent; that it "easily closed out eight or ten thousand dollars." The record shows that the libel suit was dismissed by the circuit court of Knox County, on December 17, 1914, "for want of prosecution."

The present action, instituted May 16, 1914, is upon the oral agreement of settlement alleged to have been made between Simmons and defendant's counsel, in the latter's office; by virtue of which, it is said, plaintiff administratrix is entitled to recover the sum of $ 5000.

It is the contention of learned counsel for plaintiff, appellant here, that the facts shown in evidence established a valid and binding oral contract, made in the office of defendant's counsel, between plaintiff's intestate Simmons, and the defendant, the latter...