Winegardner v. Burns
| Decision Date | 01 September 1978 |
| Citation | 361 So.2d 1054 |
| Parties | Roy E. WINEGARDNER and Catherine B. Hickman v. The William J. BURNS, International Detective Agency, Inc., a New York Corporation. SC 2794. |
| Court | Alabama Supreme Court |
Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellants.
James B. Schrimsher of Morring & Schrimsher, Huntsville, for appellee.
Winegardner and Hickman, appellants, sued The William J. Burns International Detective Agency, Inc., (Agency) for breach of contract seeking recovery for damages suffered as the mortgagees in possession of the Townhouse Motel in Huntsville. After a trial without a jury the circuit court entered judgment for the Agency. The issue is whether the court erred in its refusal to allow the appellants to introduce evidence of a subsequent oral modification of the written contract between the parties. We hold it did and reverse.
In August, 1969, the Townhouse Motel closed and the appellants entered into a written contract dated August 6, 1969, with the Agency in which the Agency agreed to provide security for the premises. The contract provides that it is operative on a month-to-month basis. A portion of the contract is as follows:
"Burns Patrol Service agrees to furnish Night Patrol Service to the Subscriber at 2806 So. Parkway, Huntsville, Alabama, by bonded, Commissioned Patrolmen intermittently between the Hours of 7:30 P.M. and 5:30 A.M., seven nights per week. These patrolmen will check your premises for Forcible Entry, Unauthorized Persons, Unlocked Doors, Broken Windows, Fire And such other irregularities as may come to their attention, and written reports thereof made to the Subscriber. Check all doors four times a night. Check the swimming pool.
Protection signs will be furnished for outside use.
This contract shall be operative on MONTH TO MONTH basis, but shall continue IN FULL FORCE until either party may, by WRITTEN NOTICE to the other, signify the desire to terminate it 30 days thereafter. " (Emphasis added.)
In October, 1969 the appellants activated the heating unit. The heating system pumped hot water through pipes located throughout the motel. In January, 1970 the heating system failed. The water pipes burst during freezing weather causing extensive water damage.
The written contract was supplemented or modified by an alleged oral agreement reached in October, 1969, which provided that the Agency would check on a regular basis the boiler pressure, boiler temperature and pump to assure that the heating system was functioning properly. Appellants sought to prove the oral agreement by offering evidence of a conversation between Eddie T. Kidwell, an engineer and agent of appellants, and Jimmy Lee Hancock, supervisor of the Agency. The trial court refused to allow this evidence and held that the Agency was under no contractual duty to check the motel heating system.
The Agency argues that Hancock had no authority to contract and consequently could not bind the Agency. W. W. Casey, who was Hancock's immediate supervisor with the Agency, testified that he had authority to contract but Hancock did not. We quote from portion of the record of Casey's testimony:
"Q Actually was Mr. Hancock an assistant manager?
A No, sir.
Q Assistant to you?
A No, sir. He was whatever.
Q Operations supervisor?
A Yes, sir.
Q Well, what did the duties of that office consist?
A He was in charge of everything in the Huntsville area under my supervision.
Q Did he hire?
A Yes, sir.
Q Did he fire?
A With my approval.
Q Did he assign men to a job?
A Yes, sir.
Q Did he relieve them from a job if necessary?
A Yes, sir.
Q Is there anything that you were authorized to do that he wasn't authorized to?
A Yes, sir.
Q What was that?
A Sign contracts.
Q Now, did you sign the contract that started the service at the Town House Motel?
A No, sir.
Q Did anybody sign it?
A Well, I imagine I did. It was typed in the office there.
Q You wouldn't have typed, '7:30 P.M. until 5:30 A.M.' would you?
A No. It was typed wrong. If it come across my desk I would have changed it.
Q Did it come across your desk?
A Must not have or I would have signed it.
Q In other words, it didn't come across your desk?
A If they had sent it back to me without a signature I would have signed it. I didn't know it wasn't signed.
Q Now, do you remember this question I asked you in your deposition, page 9, line 18, 'Did you sign the contract, or do you recall?' To which you answered, 'To my knowledge I can't remember ever signing it, to tell you the truth about it.'
A That's right, I don't.
Q Then the question was, You answered, Do you remember saying that?
A I probably said it. I don't remember.
Q In your best judgment right now?
A I probably said it, sure.
Q Well, right now, though, in your best judgment, did Mr. Hancock supervise the preparation?
A The way Hancock did business, sent it out without having me sign it.
Q That's what you mean, Hancock did it?
A That's his way of doing business, that's the reason he was relieved."
It appears from the record that if Casey didn't approve the contract then it must have been approved by Hancock. The record is clear that Hancock was the only person with whom appellants dealt. The contract was not signed by anyone from the Agency. The Agency admits the contract was binding, consequently it appears Hancock was the only person who could have bound the Agency. If in fact Hancock did not have actual authority to contract for the Agency, then clearly under these circumstances he had apparent authority.
The Agency contends there was no consideration for the oral agreement and the trial court should be affirmed. Appellants claim only mutual assent is required to support the modification.
A written contract may, in the absence of statutory provisions requiring a writing, be modified by a subsequent oral agreement. Commercial Credit Co. v. Perkins, 236 Ala. 616, 184 So. 178 (1938); Moore v. Williamson, 213 Ala. 274, 104 So. 645 (1925).
Whether the modification of a contract must be supported by a new consideration other than mutual assent has been, in times past, the object of exhaustive judicial opinions in Shriner v. Craft, 166 Ala. 146, 51 So. 884 (1910), and Moore v. Williamson, supra...
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