ROBERT SHAW, Plaintiff-Appellant/Cross-Appellee, vs. LOREN BUSER d/b/a BUSER INSURANCE AGENCY, Defendant-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-115 / 08-1060
Filed April 22, 2009
ROBERT SHAW,
Plaintiff-Appellant/Cross-Appellee,
vs.
LOREN BUSER d/b/a
BUSER INSURANCE AGENCY,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Plaintiff appeals and defendant cross-appeals from a district court
judgment in an action arising from a failed business transaction. AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.
Mark W. Fransdal of Redfern, Mason, Larsen & Moore, P.L.C., Cedar
Falls, for appellant.
David L. Riley of McCoy, Riley, Shea & Bevel, P.L.C., Waterloo, for
appellee.
Heard by Vaitheswaran, P.J., and Doyle and Mansfield, JJ.
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DOYLE, J.
Robert Shaw appeals and Loren Buser, d/b/a Buser Insurance Agency,
cross-appeals from a district court judgment in an action arising from a failed
business transaction. We affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings.
Loren Buser has owned and operated Buser Insurance Agency for fortytwo years. He sold his first life insurance policy in November 1966, eventually
developing a successful business with several hundred clients. Robert Shaw, a
former financial advisor with American Express, began working with Buser in late
December 1998 after learning that Buser was planning to retire in a few years.
Shaw maintained his own clientele and occasionally assisted Buser with some of
his clients.
As the years went by, Shaw began helping Buser with his clients on a
more frequent basis. Buser owned a cabin on a lake in South Dakota and spent
much of his time there.
In February 2002, Shaw approached Buser about
purchasing the agency upon Buser‟s retirement.
Although Buser initially told
Shaw he did not want to sell his agency to him, the parties continued negotiating
and on July 9, 2002, signed the written agreement that is the subject of this
dispute.
Their agreement provided in relevant part:
WHEREAS, Loren E. Buser is sole owner, operator and
proprietor of the Buser Insurance Agency; and
WHEREAS, Buser wishes and desires to provide for
business continuation; and
WHEREAS, Robert Shaw has been an associate with the
Buser Insurance Agency for the past several years; and
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WHEREAS, Robert Shaw wishes to acquire the Buser
Insurance Agency over the course of time; and
WHEREAS, the parties have agreed to a division of income
in exchange for percentage ownership . . . .
....
It is agreed that the business of the Buser Insurance Agency
shall be divided into separate divisions and shall be serviced by
Shaw and Buser and compensated as follows:
1.
Renewal Business/Existing Business
Year
Shaw / Buser
1) Remainder of 2002
35%/65%
2) 2003
35%/65%
3) 2004
40%/60%
4) 2005
45%/55%
5) 2006
50%/50%
6) 2007
50%/50%
7) January 1, 2008
Shaw will own the agency
....
4.
Renewal Ownership. All renewal commissions, the
rights related thereto and their ownership shall remain the sole
property of Buser during the term of this Agreement and until such
time as all terms and conditions, payments and obligations related
hereto have been met and satisfied in full.
....
6.
Existing Renewals. On January 1, 2008, all existing
renewals will be assigned to Shaw. Shaw will pay to Buser 2-1/2
times the renewal value for Buser‟s shares for calendar year 2007
which shall be made in equal quarterly installments over the
subsequent 2-1/2 years.
The agreement defined “Renewal Business/Existing Business” as “all
renewals and commissions generated from current or existing business involving
individual health, life, long-term care, disability and medical along with all group
insurance including life, health, accident, disability and 401 (k) and other
retirement plans.” At trial Shaw further described renewals as “the amount of
money that comes in on business in a year‟s time on . . . health insurance and
. . . life insurance business.”
After entering into the agreement set forth above, Shaw began to provide
services for most of the agency‟s clients while Buser spent the majority of his
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time at his cabin in South Dakota. When he was in Iowa, Buser would focus on
his “favorite” and higher-paying clients. Twice each month, Shaw would prepare
a bill for the agency for his share of the renewals according to the schedule set
forth in paragraph one of their agreement. Buser‟s secretary would then write
Shaw a check based on the bill he provided to her.
The parties‟ relationship continued amicably in that manner until
September 2007 when Buser‟s attorney, Patrick Galles, sent Shaw the following
letter:
In anticipation of the upcoming transition, I have reviewed
the sale agreement between you and Loren. It appears that
effective January 1, 2008 you will be purchasing Loren‟s renewals
at the rate of 2 1/2 times the annual renewal value from 2007. The
annual renewal commissions for 2006 were in the neighborhood of
$88,550.44. For planning purposes the amount due in January will
be somewhere in excess of $220,000.00. From talking with Loren
the 2007 renewals should be slightly higher than the 2006.
Whatever 2 1/2 times the 2007 renewal figure is Loren is willing to
carry on a 5-year note at 6% interest with monthly payments
amortized over 5 years.
Shaw, who had already signed a lease for his own office space from which to
operate the agency, faxed Galles a response the following day stating, “Pat, the
agreement is for me to purchase Loren‟s renewals. At this point in time I own
50% and he owns 50%. The figures should be roughly 2 1/2 times $44,000 or
$110,000.”
It thereafter became clear in a series of letters exchanged between the
parties that Shaw believed “Buser‟s shares” amounted to fifty percent of the
agency‟s renewals. He consequently thought that on January 1, 2008, he would
be purchasing those fifty percent of renewals at two and one-half times their
2007 value. Buser, on the other hand, believed he had retained ownership of all
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the renewals, so that Shaw‟s purchase price for the agency would be two and
one-half times the total annual renewals for 2007.
In early October 2007, while Buser was in South Dakota, Shaw changed
the mailing address for Buser Insurance Agency to the address for his new office.
Shaw then removed a computer, refrigerator, and all of the files for Buser‟s
clients, past and present, from Buser‟s office the night before he returned to
Iowa.
Because the lease for his new office space did not commence until
November 1, Shaw moved all of those items to his home.
When Buser walked into his office after coming back from South Dakota,
he “could see, first of all, the computer was gone. Walked back to the file room,
saw the refrigerator was gone. Opened the file drawers. All the fi[l]es were
gone.” He later discovered Shaw had changed some of the computer passwords
Buser needed to access his clients‟ files. Upon discovering the missing items
and files, a “very upset” Buser called his attorney. He also called the police and
told them Shaw had stolen his computer, refrigerator, and client files. The police
declined to pursue the matter after speaking to Shaw.
Shaw then filed a petition for declaratory judgment, requesting the court
declare his right to purchase Buser Insurance Agency for “two and one-half times
the 50% share of renewals (commissions) assigned and paid to Buser for the
year 2007, pursuant to paragraphs 1 and 6 of the Agreement.”
After being
served with notice of the suit, Buser went to see Van Miller, one of his agency‟s
largest clients, in order to inform him of his dispute with Shaw. Buser “may have”
told Miller that Shaw “had stolen files from the office and the police were
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involved.” Miller ultimately decided to switch his company‟s business to another
agency, but he kept his personal business with Buser.
Upon learning of Buser‟s conversation with Miller, Shaw amended his
petition for declaratory judgment to assert claims for slander and intentional
interference with prospective business advantage. He also added a breach of
contract claim based on Buser‟s failure to pay Shaw his share of renewals after
he left the agency. Buser filed an answer and counterclaim, seeking damages
for Shaw‟s breach of contract, removal of client files, breach of fiduciary duties,
and mail fraud.
Towards the end of December 2007, Shaw gave Buser a check for what
he calculated his first installment to be under the parties‟ agreement. Buser did
not accept the check and later sold the agency to a different buyer.
Shaw
eventually returned all of Buser‟s client files to him in January 2008. He then
amended his petition for a second time to assert claims for specific performance
and breach of contract based on Buser‟s failure to sell the agency to him.
About two weeks before trial, Shaw sought to amend his petition for a third
time to add another breach of contract claim for Buser‟s failure to pay him past
commissions for two of the agency‟s clients, Community Motors and Miller. The
district court granted Shaw‟s third motion to amend over Buser‟s objection and
proceeded to hear the parties‟ evidence in support of their claims.
Following the trial, the district court entered a ruling, which stated, “The
crux of this lawsuit is the meaning and effect of the document signed by the
parties on July 9, 2002.” The court determined that agreement was “clearly
ambiguous” because “[t]wo separate meanings as to the final payment amount
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are supported by the language contained therein.” The court further determined
“the ambiguities in the contract are such that there was not mutual assent as to
the terms of the agreement which would be necessary to create a contract.”
Although the court found there was no enforceable written contract between the
parties, it determined Shaw was entitled to $6206.83 in damages based on the
parties‟ “unwritten agreement” that Shaw would receive ten percent of the
commission Buser earned on a life insurance policy he sold to Miller. The court
denied all of the parties‟ other claims.
Shaw appeals. He claims the district court erred in determining there was
no express contract between the parties. Based upon that written agreement, he
argues he is entitled to $116,000 in actual damages plus $25,000 in liquidated
damages for Buser‟s failure to sell him the agency; $5736.96 for unpaid renewals
from October 15, 2007, through December 31, 2007; and $22,593.88 for his
share of past commissions received by Buser from Community Motors.
He
further claims the court erred in dismissing his slander claim.
Buser cross-appeals.
Like Shaw, he also claims the court erred in
determining there was no express contract between the parties.
He asserts
Shaw breached that contract in failing to purchase the agency, entitling him to
$25,000 in liquidated damages plus attorney fees. He additionally claims the
court erred in allowing Shaw to amend his petition for a third time and awarding
him $6206.83 in damages.
II. Scope and Standards of Review.
As this matter was filed and tried as an action at law, our review is for the
correction of errors at law. Iowa R. App. P. 6.4; Schaer v. Webster County, 644
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N.W.2d 327, 332 (Iowa 2002) (stating the interpretation of a contract is reviewed
for the correction of errors at law). Findings of fact in a law action are binding on
appeal if they are supported by substantial evidence. Iowa R. App. 6.14(6)(a).
III. Discussion.
A. Breach of Contract.
We begin our discussion with the oft-stated proposition that “there can be
no contract without a meeting of the minds of the parties.” Lamson v. HortonHolden Hotel Co., 193 Iowa 355, 361, 185 N.W. 472, 474 (1921); see also
Schaer, 644 N.W.2d at 338 (“For a contract to be valid, the parties must express
mutual assent to the terms of the contract.”). However, although
[i]t is often said broadly that if the parties do not understand the
same thing there is no contract . . . it is clear that so broad a
statement cannot be justified. It is even conceivable that a contract
may be formed which is in accordance with the intention of neither
party. If a written contract is entered into, the meaning and effect of
the contract depends on the interpretation given the written
language by the court. The court will give that language its natural
and appropriate meaning . . . .
Iowa-Des Moines Nat’l Bank v. Insurance Co. of N. Am., 459 F.2d 650, 655 (8th
Cir. 1972) (quoting 1 Williston on Contracts § 95, at 349-50 (3rd ed. 1957)). Both
parties seek enforcement of their written agreement. They each claim the district
court erred in concluding that agreement lacked mutual assent. We agree.
Paragraph six of the parties‟ agreement provides in relevant part that on
“January 1, 2008, all existing renewals will be assigned to Shaw. Shaw will pay
to Buser 2 1/2 times the renewal value for Buser’s shares for calendar year 2007
. . . .” (Emphasis added.) Shaw understood the phrase “Buser‟s shares” to
mean that he was buying fifty percent of the agency‟s renewals at two and one-
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half times their 2007 value. His understanding was based on his belief that he
had already obtained fifty percent ownership of the renewals under the schedule
set forth in paragraph one as compensation for services he provided to the
agency in the years leading up to his purchase of the agency. Buser, on the
other hand, understood the phrase “Buser‟s shares” to mean he was selling
Shaw all of the agency‟s renewals at two and one-half times their 2007 value.
His understanding was based on his belief that he had retained ownership of all
of the renewals pursuant to paragraph four of the agreement and that the table in
paragraph one “was a compensation schedule, not an ownership schedule.”
Where, as here, the dispute centers on the meaning of certain contract
terms, we engage in the process of contract interpretation. Walsh v. Nelson, 622
N.W.2d 499, 503 (Iowa 2001). The primary goal of contract interpretation is to
determine the parties‟ intentions at the time they executed the contract.
Id.
Interpretation involves a two-step process: (1) the court must determine what
meanings are reasonably possible from the words chosen and (2) the court must
choose among possible meanings. Id.
The first step involves determining whether a term is ambiguous. “A term
is ambiguous if, „after all pertinent rules of interpretation have been considered,‟
„a genuine uncertainty exists concerning which of two reasonable interpretations
is proper.‟” Id. (quoting Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa
1999)). We find substantial evidence supports the district court‟s determination
that the parties‟ written agreement “is clearly ambiguous” as “[t]wo separate
meanings as to the final payment amount are support[ed] by the language
contained therein.”
The preamble of the agreement states “the parties have
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agreed to a division of income in exchange for percentage ownership.” Thus,
according to Shaw, the percentages in paragraph one of the agreement “are the
percentages which would apply to both the division of revenues and the division
of ownership of the renewals between Shaw and Buser” until January 1, 2008,
when “Shaw will own the agency.”
However, as Buser points out, the
introductory sentence to the table in paragraph one states, “It is agreed that the
business of the Buser Insurance Agency shall be divided into separate divisions
and shall be serviced by Shaw and Buser and compensated as follows.”
(Emphasis added.) Buser therefore believed that paragraph merely set forth the
manner in which Shaw was to be compensated for his work for Buser‟s clients.
Shaw finds additional support for his position in paragraphs seven and
eight of the agreement. Paragraph seven states, “In the event of Buser‟s death
on or before January 1, 2008, Shaw will immediately be assigned all renewals
and Shaw will pay Buser‟s estate an amount equal to the balance due pursuant
to the schedule set forth above.” Paragraph eight provides that “[i]n the event of
a breach of terms of this Agreement by Shaw, all split clients assigned to Shaw
and subsequent split renewals shall be reassigned to Buser.” Shaw asserts that
if he “were not obtaining a percentage interest during the course of the
Agreement, then these provisions [assigning renewals] . . . would be
meaningless.”
Buser conversely relies on paragraph four of the agreement in asserting
Shaw did not obtain any ownership interest in the agency during the course of
their agreement. That provision provides:
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All renewal commissions, the rights related thereto and their
ownership shall remain the sole property of Buser during the term
of this Agreement and until such time as all terms and conditions,
payment and obligations related hereto have been met and
satisfied by Shaw in full.
Shaw acknowledges this provision is in direct conflict with the meaning he
attaches to the phrase “Buser‟s shares” in paragraph six.
The circumstances surrounding the formation of the agreement further
support a finding of ambiguity. Shaw communicated his desire to purchase the
agency through a “sweat equity” arrangement to his attorney, who then
suggested language to effectuate that intent. An early draft of the agreement
contains a notation written by Buser‟s attorney below the table in paragraph one
stating, “Shaw pays 2 1/2 x 50% renewals value as of 1/1/2008.” That language,
however, does not appear in the final agreement signed by the parties. Buser
testified he never saw any notes proposing that he sell his agency for two and
one-half fifty percent of his annual renewals, and that had such a proposition
been suggested to him, he “would have walked away.”
Given the conflicting language contained in the agreement and the parties‟
differing expectations, we conclude the district court correctly determined the
provision regarding the purchase price for the agency was reasonably
susceptible to two different meanings. However, determining what meanings are
reasonably possible from the words chosen is only the first step in ascertaining
the parties‟ intentions at the time they executed the contract. See Walsh, 622
N.W.2d at 503.
“Inasmuch as the parties may have attached different meanings and may
have had different intentions at the time of formation of the contract, the court
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must determine which party‟s meaning and intention should prevail.” 5 Margaret
N. Kniffin, Corbin on Contracts § 24.5, at 15 (Joseph M. Perillo ed., rev. ed.
1998); see also Walsh, 622 N.W.2d at 503 (stating once an ambiguity is
identified, the court must then choose among possible meanings). In certain
limited circumstances, the court may discover that the parties‟ failure to agree
has resulted in no contract having been formed. See Corbin on Contracts § 24.5,
at 15; Restatement (Second) of Contracts § 20(1)(a), at 58 (1981) (“There is no
manifestation of mutual assent to an exchange if the parties attach materially
different meanings to their manifestations and . . . neither party knows or has
reason to know the meaning attached by the other.”). We do not believe such a
situation exists in this case.
Material differences of misunderstanding are a standard cause of contract
disputes. Restatement (Second) of Contracts § 20 cmt. b, at 59. “Almost never
are all the connotations of a bargain exactly identical for both parties.” Id.; see
also Corbin on Contracts § 1.9, at 25 (“Agreement consists of mutual
expressions; it does not consist of harmonious intentions or states of mind.”). It
is therefore
important to distinguish between the common problem of
interpretation of key terms of a contract and the much less common
question whether a material difference of understanding has
prevented the manifestation of mutual assent necessary to create a
contract at all.
Restatement (Second) of Contracts § 20 rptrs. ns., at 61. The district court did
not make that essential distinction here.
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This is not the Peerless case where each party had a different ship in
mind and the court had no way to break the tie by determining which party‟s
position was more reasonable.1 To hold here, where there is a written contract
freely entered into, without fraud, misrepresentation, or
unconscionable advantage, reduced to writing by the parties
themselves or by their chosen counsel, framed in intelligible form,
in familiar nontechnical words of common usage, and for years
allowed to stand unchallenged as the evidence of their agreement,
may be adjudicated null and void upon the plea that the minds of
the parties never met in accord upon the construction to be placed
upon one item thereof would be to destroy the sacredness of all
contracts.
Lamson, 193 Iowa at 361, 185 N.W. at 474. It is enough that there is a core of
common meaning, as there is in the agreement present in this case, sufficient to
determine the parties‟ performances with reasonable certainty or to give a
reasonably certain basis for an appropriate legal remedy. Restatement (Second)
of Contracts § 20 cmt. b, at 59. In light of the foregoing, we conclude the district
court erred in finding there was no contract due to lack of mutual assent rather
than resolving the ambiguity present in the parties‟ agreement.
We therefore reverse the decision of the district court dismissing both
parties‟ breach of express contract claims based on the failed sale of the agency,
and remand to allow the district court, as trier of fact, to interpret the contract
1
The “most famous statement” demonstrating lack of mutual assent arose in the case of
Raffles v. Wichelhaus, 2 Hurl. 906, 159 Eng. Rep. 375 (1864). See Hill-Shafer P’ship v.
Chilson Family Trust, 799 P.2d 810, 814 (Ariz. 1990).
In Raffles, the parties agreed on a sale of goods which was to be
delivered from Bombay by the ship “Peerless.” In fact, two ships named
“Peerless” were sailing from Bombay at different times, and each party
had a different ship in mind. The arrival time of the merchandise was of
the essence to the contract. Because the understandings of the parties
were different as to a material term, no binding contract was formed.
Hill-Shafer P’ship, 799 N.W.2d at 814-15.
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anew and choose which meaning should prevail based on the record already
made.
See Walsh, 622 N.W.2d at 504 (remanding to allow district court to
interpret ambiguous contract); Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618
(Iowa 1999) (“[W]hen the meaning of an agreement depends on extrinsic
evidence, a question of interpretation is left to the trier of fact . . . .”).
Because we conclude the court erred in finding there was no express
contract in this case, we must also reverse its denial of Shaw‟s additional breach
of contract claims based on that express contract. Shaw sought damages in the
amount of $5736.96 for Buser‟s failure to pay him renewals from October 15,
2007, through December 31, 2007, and $22,593.88 for his share of past
commissions received by Buser from Community Motors.
The court‟s
determination that Shaw was not entitled to those damages cannot stand
because it was based on the court‟s erroneous conclusion that the parties‟
written agreement was unenforceable.
In the same vein, we reverse the court‟s determination that Shaw was
entitled to $6206.83 in damages pursuant to the parties‟ “unwritten agreement”
that Shaw would receive ten percent of the commission Buser earned on a life
insurance policy he sold to Miller. See Scott v. Grinnell Mut. Reins. Co., 653
N.W.2d 556, 562 (Iowa 2002) (“[T]he law will not imply a contract where there is
an express contract.”).
The court should revisit the aforementioned items of
damages on remand. In so concluding, we deny Buser‟s final claim that the court
erred in allowing Shaw to amend his petition to add the breach of contract claims
regarding the Community Motors and Miller accounts.
15
In general, “allowance of amendments should be the rule and denial the
exception.” Chao v. City of Waterloo, 346 N.W.2d 822, 825 (Iowa 1984); see
also Iowa R. Civ. P. 1.402(4) (“Leave to amend . . . shall be freely given when
justice so requires.”). Leave to amend is generally granted when there is no
substantial change in the defense or issues of the case. Ellwood v. Mid States
Commodities, Inc., 404 N.W.2d 174, 179 (Iowa 1987). We afford considerable
discretion to the trial court in ruling on such motions and will reverse the court
only when a clear abuse of discretion has been shown. Davis v. Ottumwa Young
Men’s Christian Ass’n, 438 N.W.2d 10, 14 (Iowa 1989). We do not believe the
court abused its discretion in allowing Shaw‟s third amendment in this case as
the additional breach of contract claims added by that amendment did not
substantially change the issues before the court.
B. Slander.
The final issue presented for our consideration is whether the district court
erred in finding Shaw failed to establish his slander claim against Buser. We
conclude it did not.
Shaw alleged Buser “committed slander per se when he accused [him] of
theft to the Cedar Falls Police Department and to Van Miller.”
See Lara v.
Thomas, 512 N.W.2d 777, 785 (Iowa 1994) (stating an attack on the integrity and
moral character of a person is slanderous per se, as are slanderous imputations
affecting a person in his profession). However, at trial Shaw limited his slander
claim to Buser‟s conversation with Miller during which Buser “may have” told
Miller that Shaw “had stolen files from the office and the police were involved.”
Our analysis will therefore focus on that conversation. Buser asserts that his
16
statements to Miller were not slanderous because they were substantially true.
We agree.
In Hovey v. Iowa State Daily Publication Board, Inc., 372 N.W.2d 253, 256
(Iowa 1985), our supreme court adopted the rule that “if an allegedly defamatory
statement is substantially true, it provides an absolute defense to an action for
defamation.” “Thus, it is no longer necessary for a libel [or slander] defendant to
establish the literal truth of the publication in every detail as long as the „sting‟ or
„gist‟ of the defamatory charge is substantially true.” Behr v. Meredith Corp., 414
N.W.2d 339, 342 (Iowa 1987). Our supreme court has further stated that in
determining whether a statement is actionable, the court must look to the totality
of the circumstances. Jones v. Palmer Commc’n, Inc., 440 N.W.2d 884, 891
(Iowa 1989) disavowed on other grounds by Schlegel v. Ottumwa Courier, 585
N.W.2d 217, 224 (Iowa 1998).
The evidence presented at trial established that when Shaw left Buser‟s
office he took, among other items, a computer and refrigerator with him. He also
took all of Buser‟s client files, past and present. Buser reported those items as
missing to the police. He then informed Miller that Shaw had either “taken” or
“stolen” Buser‟s client files and the police were involved. These statements were
substantially true.
When Shaw surreptitiously removed the files from Buser‟s office while
Buser was in South Dakota, he knew Buser contested Shaw‟s partial ownership
of the agency. Buser was adamant that the agency‟s client files belonged to him,
testifying he was “very, very riled up and upset about my files. Forty years of
work gone.” Shaw later returned all of Buser‟s files to him after it became clear
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Buser was not going to sell the agency to him. In light of the foregoing, we find
substantial evidence supports the district court‟s finding that “[d]espite the
irresponsible behavior shown by both parties,” Shaw did not prove Buser
committed slander per se in his statements to Miller. See Brown v. First Nat’l
Bank, 193 N.W.2d 547, 553 (Iowa 1972) (stating it is for the finder of fact to
determine whether the defendant‟s words had a defamatory meaning in the case
before it).
IV. Conclusion.
We conclude the district court did not err in finding Shaw failed to establish
his slander claim against Buser and affirm that portion of the court‟s decision.
However, the court did err in finding the parties‟ written agreement failed for lack
of mutual assent. We therefore reverse the court‟s dismissal of both parties‟
breach of contract claims based on the failed sale of the agency and remand to
allow the court to interpret the contract anew. Because we conclude the court
erred in finding there was no express contract in this case, we must also reverse
its denial of Shaw‟s additional breach of contract claims under that express
contract and its award of $6206.83 in damages to Shaw pursuant to an
“unwritten agreement” between the parties. The case is remanded for further
proceedings consistent with this opinion. Costs are taxed one-half to each party.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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