Welch v. Sherwin

• Decision Date: 08 February 1962
• Docket Number: No. 16312.,16312.
• Citation: 112 US App. DC 124,300 F.2d 716
• Parties: Vincent B. WELCH, Appellant, v. Robert W. SHERWIN et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 124, 300 F.2d 716 (1962)

Vincent B. WELCH, Appellant, v. Robert W. SHERWIN et al., Appellees.

No. 16312.

United States Court of Appeals District of Columbia Circuit.

Argued October 10, 1961.

Decided February 8, 1962.

Mr. John A. Kendrick, Washington, D. C., with whom Mr. E. Tillman Stirling, Washington, D. C., was on the brief, for appellant.

Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Friedlander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief, for appellees.

Before EDGERTON, BAZELON and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

This is a suit for an attorney's fee of $12,718.41 based upon a written contract under which defendants, members of the Creditors' Committee of an insolvent corporation, "assumed responsibility for payment of plaintiff's fees * * * regardless of any arrangement the Creditors' Committee may have or may obtain for reimbursement." After trial, without jury, the District Court found that a discussion between the parties which preceded execution of the contract led the defendants to understand "that in signing the agreement they would be technically liable for attorney's fees and costs, but that * * * if the debtor corporation assumed such liability * * * the individual creditors would not be held responsible." Finding that the corporation had assumed but had not paid the debt, the court denied recovery under the contract.¹ Plaintiff appeals.

We think the District Court erred. There is no allegation or finding of fraud, mistake or overreaching.² And the contemporaneous oral "understanding" upon which the trial court relied contradicts the plain language of the contract.

"Where parties enter into a written contract, their rights must be controlled thereby, and, in the absence of fraud or mistake, all evidence of any contemporaneous oral agreement on the same subject matter, contradicting, varying, modifying, or adding to the terms of the written agreement is inadmissible. Shankland v. Mayor, etc., 5 Pet. 390, 30 U.S. 390, 8 L.Ed. 166, affirming Shankland v. Corporation of Washington, Fed.Cas.No. 12,703, 3 Cranch C.C. 328; Selden v. Myers, 20 How. 506, 61 U.S. 506, 15 L.Ed. 976; Willard v. Tayloe, 8 Wall. 557, 75 U. S. 557, 19 L.Ed. 501. The written contract merges all previous negotiations and is presumed, in law, to express the final understanding of the parties. Brawley v. United States, 96 U.S. 168, 24 L.Ed. 622; Van Ness v. Mayor, etc., of City of Washington, 4 Pet. 232, 29 U.S. 232, 7 L. Ed. 842, affirming Van Ness v. United States, Fed.Cas.No. 16,868, 2 Cranch C.C. 376, 2 D.C. 376; Kinney v. Mc- Nabb, 44 App.D.C. 340" Boomhower, Inc. v. Louis L. Lavine, 151 F.Supp. 563, 567 (D.D.C.1957).

It follows that the instant contract must be enforced as written.

The question remaining is whether the defendants are jointly liable for the entire fee or severally liable for only a "pro rata" share.³ We are constrained to hold that they are jointly liable for the entire fee.

The contract provides that "the members of the Committee as such assumed responsibility for payment," and contains no words of severance. The general rule is "that the obligation created by the promise of several persons is joint unless the contrary is made evident." 2 Williston, Contracts § 323 (1936). Cf. Restatement, Contracts § 112 (1932). Moreover, the contract identifies the promisors as "the members of the Committee" and discloses an undivided promise to pay the entire fee. This negates the view that each member made a separate promise to pay a pro rata share. See 4 Corbin, Contracts § 925 (1951). Compare Huff v. Doerr, 206 Mo.App. 563, 228 S.W. 849 (1921), with O'Connor v. Hooper, 102 Cal. 528, 36 P. 939 (1894). Cf. Olson v. Forster, 42 Cal.App.2d 493, 109 P.2d 388 (1941). Compare Adriatic Fire Ins. Co. v. Treadwell, 108 U.S. 361, 2 S.Ct. 772, 27 L.Ed. 754 (1883). Finally, the common object of the members of the Creditors' Committee — to secure appellant's legal services — suggests that their liability is joint. 4 Corbin, Contracts § 926 (1951).

Whether the members of the Creditors' Committee are entitled to contribution inter se or from other creditors, or both, is not before us.

Reversed and remanded.

1 The court below awarded plaintiff $505.83, presumably as third party beneficiary of...