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Dancy v. William J. Howard Inc.

December 28, 1961

MARSHALL F. DANCY, PLAINTIFF-APPELLEE,
v.
WILLIAM J. HOWARD, INC., A CORPORATION, DEFENDANT-APPELLANT



Author: Hastings

Before HASTINGS, Chief Judge, and KILEY and SWYGERT, Circuit Judges.

HASTINGS, Chief Judge.

Marshall F. Dancy (plaintiff-appellee) brought this diversity action against William J. Howard, Inc. (defendant-appellant) to recover the amount due under an agreement for the services of plaintiff. The cause was tried to the court without the intervention of a jury. Judgment for plaintiff was entered in the amount of $20,000 with interest, and this appeal followed.

On October 3, 1951, defendant executed a preliminary agreement with the City of Dunbar, West Virginia and its Bridge Commission contemplating the construction of a bridge over the Kanawha River. The agreement provided that defendant would do preliminary engineering work, make traffic reports, and arrange for financing the project and all costs incident thereto through the sale of bonds. On November 5, 1951, plaintiff accepted an assignment from defendant of that part of the preliminary agreement relating to the arranging of financing.

After signing the final bridge construction contract with the City and Bridge Commission on December 29, 1951, defendant entered into an agreement with Marshall Dancy & Associates. This agreement was in the form of a letter to Marshall Dancy & Associates from defendant and was a re-write of a letter that had previously been sent to defendant from Marshall Dancy & Associates. It was dated January 18, 1952. The pertinent paragraph of this agreement provides:

"Marshall Dancy & Associates have agreed to provide financing for construction of said bridge, and to continue to provide said service in connection therewith until such time as the project has been completed. Thereupon for the aforesaid financing and additional services, William J. Howard, Inc., has agreed to pay Marshall Dancy & Associates, through Marshall Dancy [plaintiff], the sum of $100,000 to be paid in monthly installments starting at the time William J. Howard, Inc., receives his first partial payment under its contract and in amounts in direct proportions to the ratio of the construction contract monthly payments to the total construction contract. * * *"

No question is raised as to the foregoing agreement, and the full amount of $100,000 therein mentioned was paid to plaintiff by defendant between July 1, 1952 and January 1, 1954.

The supplemental agreement sued upon by plaintiff was accepted by defendant on the same day as the above agreement. The pertinent parts of this contract provide:

"This supplemental contract on the Dunbar Bridge is in addition to that signed the 18th day of January, 1952, in the sum of $100,000 and it is to be considered in payment for services outside the purely functional aspect of the other contract, as well as to make up for a lack of personal earning power in the above stated principal contract.

"This contract shall not become payable until William J. Howard, Incorporated, has received final payment for construction of the said Dunbar Bridge.

"The amount herein agreed to between the principals shall be $20,000 (Twenty thousand dollars).

"If there is no contract nor any financing, there will be due no fees or expenses from William J. Howard, Incorporated, to Marshall F. Dancy." (Emphasis added.)

The date and amount to be paid plaintiff were inserted therein by William J. Howard as president of defendant. Spaces for these items had been left blank by plaintiff when the supplemental contract was sent to defendant. No part of the agreed payment of $20,000 to plaintiff has been paid by defendant.

The trial court admitted, over defendant's objection, parol testimony as to what was meant by "services outside the purely functional aspects of the other contract," as this ...


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