Wilson v. Duncan

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Wilson v. Duncan, 269 S.W. 239 (Tex. App. 1924)
• Decision Date: 31 December 1924
• Docket Number: (No. 128.)
• Parties: WILSON v. DUNCAN et al.

269 S.W. 239

WILSON v. DUNCAN et al.

(No. 128.)

Court of Civil Appeals of Texas. Waco.

December 31, 1924.

Rehearing Denied February 5, 1925.

Error from Dallas County Court at Law; T. A. Work, Judge.

Action by John G. Wilson against Worth Duncan and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Wm. F. Robertson, of Dallas, for plaintiff in error.

Church & Bane, of Dallas, for defendants in error.

GALLAGHER, C. J.

The parties will be designated as in the trial court. Plaintiff, John G. Wilson, brought this suit against defendant Worth Duncan and Starkey Duncan to recover the sum of $614.07, which he alleged was the unpaid balance of an attorney's fee of $1,202.60 due him under a contract made between him and defendant Worth Duncan.

The material allegations of plaintiff's petition were that the defendant Worth Duncan owned five certain promissory notes, each secured by separate deeds of trust on separate parcels of land in Jones county; that said notes had all been declared due under a provision for accelerated maturity therein contained; that each of said notes provided for the payment of 10 per cent. additional as attorney's fees, if placed in the hands of an attorney for collection; that said defendant placed said notes in his hands for collection and promised to pay him the 10 per cent. stipulated therein as compensation for his services in collecting said notes; that he performed all necessary services in connection with the collection of said notes, including services not contemplated at the time of employment but necessary to such final collection; that 10 per cent. of the principal and interest of said notes amounted in the aggregate to said sum of $1,202.60; that defendant Worth Duncan had paid him to be applied thereon the sum of $558.53, leaving a balance due him of $614.07, the amount sued for herein. He further alleged that the collection of said notes was finally effected by a sale of the property subject to said liens by defendant Starkey Duncan as substitute trustee; that said Worth Duncan purchased said property at said trustee's sale; that his bid was in excess of the principal, interest, and attorney's fees on said several notes; that it was the duty of said trustee before delivering deeds to said property so purchased by defendant Worth Duncan to collect from him and pay to plaintiff the 10 per cent. attorney's fees stipulated in said notes; that he failed to do so, and was therefore personally liable for the balance of his attorney's fees sued for herein.

Defendant Worth Duncan answered by general denial, by special plea that he did place the notes described in plaintiff's petition in his hands for collection; that plaintiff agreed to perform all services necessary in connection with such collection and to divide the attorney's fees stipulated in said notes with said defendant, and to accept one-half of said amount, or 5 per cent. of the principal and interest of said notes, as full compensation for his services in the premises; that it was plaintiff's duty to calculate the amount due on said notes, to be used as a guide in bidding on said property when offered for sale by the trustee; that plaintiff made a mistake in said calculation, which resulted in his bidding for said property at such sale some $3,000 more than the amount of his debt, to his material damage; that he paid the said $588.53 credited by plaintiff on the claim sued for, in full of plaintiff's demand thereon, and that the same constituted an accord and satisfaction and a bar to further recovery by plaintiff.

Plaintiff pleaded in reply thereto that it was true, as alleged by defendant, that defendant had placed said notes in his hands for collection, but that defendant had expressly agreed to pay him 10 per cent. of the amount thereof for his services in the premises; that he refused to accept and did not accept the said amount so paid by defendant and admitted in his petition to have been paid to him in full of his demands for said services.

The pleadings of the parties in this case cover 39 pages of the transcript. We think the brief summary above given is sufficiently explicit for the purposes of this opinion, except as to the issue of accord and satisfaction. The statement of the pleadings on that issue will be elaborated in connection with our discussion of the same.

The case was submitted to a jury on special issues. These issues consisted of four questions propounded to the jury, which questions with the answers of the jury thereto were as follows:

"Question No. 1. Did the defendant Worth Duncan agree to pay the plaintiff John G. Wilson 10 per cent. of the principal and interest due on the notes in question, for the said Wilson's services in collecting the principal, interest, and attorney's fees provided in said notes? Answer: No.

"Question No. 2. Before the defendant paid plaintiff the $588 check, was there a controversy in good faith between the defendant and the plaintiff as to the amount due for plaintiff's services? Answer: Yes.

"Question No. 3. Was the $588 check in question given by defendant Duncan to plaintiff Wilson in complete settlement and satisfaction of plaintiff's claim and demand against the defendant? Answer: Yes.

"Question No. 4. Did the plaintiff, Wilson, receive and accept said $588 check in full and complete settlement and satisfaction of his said claim against defendant Duncan? Answer: Disagreed."

The court rendered judgment in favor of defendants on said verdict. Plaintiff presents the case for review by writ of error.

Plaintiff contends, among other things, that an answer to said question No. 4 was necessary to authorize a judgment for defendants on said verdict, and that the court erred in rendering judgment thereon, instead of declaring a mistrial of the case. Defendants contend that plaintiff was precluded from a recovery by the answer of the jury to question No. 1, and that on account of such answer all other questions became immaterial, and that the court could not have properly rendered any other judgment except a judgment for defendants, even if the jury had answered question No. 4 in the negative.

Both plaintiff and defendant testified on the trial of the case. Both testified that defendant placed the notes in plaintiff's hands for collection; that plaintiff undertook to collect the same; that he performed all the professional services necessary in connection therewith, and that said notes were collected by defendant's purchasing the mortgaged property at trustee's sale upon a bid therefor in excess of his debt. Plaintiff testified that defendant agreed to pay him 10 per cent. of the principal and interest of said notes for his services. Defendant testified that he told plaintiff he would pay him 5 per cent. of such principal and interest for such services, and that plaintiff accepted employment on such terms and rendered all the services sued for under such contract. Defendants base their contention that the finding of the jury in response to question No. 1 precludes any recovery by plaintiff on the proposition that plaintiff, having alleged a specific contract for compensation for his services at the rate of 10 per cent., must prove such contract as alleged, and, having failed according to the finding of the jury to do so, could in no event recover anything in this case, regardless of the issue of accord and satisfaction. The rule that the plaintiff must prove his case substantially as alleged is axiomatic. The Supreme Court in applying this rule to proof of contracts has said that:

"If any part of the contract proved should vary materially from that which is stated in the pleadings, the variance will be fatal, for a contract is an entire thing and indivisible."

Mason v. Kleberg, 4 Tex. 85, 86, 87. Had the defendant in this case relied alone on his general denial and plea of accord and satisfaction, the rule just recited would have been applicable. Defendant, however, did not so rely. He pleaded affirmatively that he placed the notes in the plaintiff's hands for collection on a specific contract to pay him 5 per cent. thereof for his services. This plea was not necessary to put plaintiff on proof of the contract alleged by him, nor to authorize defendant to introduce evidence to rebut such proof. The general denial was sufficient for such purpose.

The rule is well established in this state that in passing upon a demurrer to plaintiff's petition, or in determining the issues to be submitted to the jury, or in determining the sufficiency of the pleadings to support the judgment, the omission of necessary allegations from such petition may be supplied by allegations in the defendant's answer, and that the pleadings of both parties may be looked to and construed together in such cases. Lyon v. Logan, 68 Tex 521, 525, 5 S. W. 72, 2 Am. St. Rep. 511; Day Co. v. State, 68 Tex. 526, 538, 4 S. W. 865; Pope v. K. C. M. & O. Ry. Co., 109 Tex. 311, 322, 207 S. W. 514; Loan Assn. v. Biering, 86 Tex. 476, 484, 485, 25 S. W. 622, 26 S. W. 39; Thomas v. Bonnie Bros., 66 Tex. 635, 637, 2 S. W. 724; Wright v. McCampbell, 75 Tex. 644, 648, 13 S. W. 293; Grimes v. Hagood, 19 Tex. 246, 249; Hill v. George, 5 Tex. 87, 89. Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.) 254 S. W. 935, 936, 937; Zan v. Clark, 53 Tex. Civ. App. 525, 117 S. W. 892 (writ refused, 118 S. W. xv); Hennessy v. Clough (Tex. Civ. App.) 40 S. W. 157, 158; Texas & N. O. R. Co. v. Miller, 60 Tex. Civ. App. 627, 128 S. W. 1165, 1171.

Had the plaintiff pleaded that defendant was denying that he had promised to pay him for his services 10 per cent. of said notes, and was claiming that he had only promised to pay plaintiff 5 per cent. thereof for such services, and had prayed in the alternative that, if the court found that he was mistaken in his allegation that defendant had agreed to pay him said 10 per cent and found that defendant agreed to pay him 5 per cent....