Barber v. Greensfelder

• Decision Date: 03 January 1911
• Citation: 133 S.W. 108,152 Mo.App. 397
• Parties: ALEXANDER BARBER, Appellant, v. BERNARD GREENSFELDER, Administrator Pendente Lite of HENRY BERGER, Deceased, Respondent
• Court: Missouri Court of Appeals

133 S.W. 108

152 Mo.App. 397

ALEXANDER BARBER, Appellant, v. BERNARD GREENSFELDER, Administrator Pendente Lite of HENRY BERGER, Deceased, Respondent

Court of Appeals of Missouri, Springfield

January 3, 1911

Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.

AFFIRMED.

Judgment affirmed.

Terry & Gueltig and J. P. Vastine for appellant.

(1) The contract has all the elements of a valid contract and is not immoral, nor against public policy, nor against any law or established interest of society. Peltz v. Long, 40 Mo. 532; State v. Preferred & M. Co., 184 Mo. 160; Angelica v. Angelica, 121 Mo.App. 226; O'Day v. Meadows, 194 Mo. 617. (2) Contract to be performed at the death of a given person is not invalid on that account. Note payable at the maker's death is valid. Page on Contract, sec. 397; Maze v. Baird, 89 Mo.App. 348; Skinner v. Skinner, 77 Mo. 148; Bufe v Bufe, 88 Mo.App. 627; Vogel v. Vogel's Adm., 22 Mo. 161; 1 Bouvier Law Dictionary (12 Ed.) 436; Garesche v. Lewis, 15 Mo.App. 565, 93 Mo. 197; Lawson on Contracts, 521; Hawkins v. Ball's Adm., 68 Am. Dec. 755; Krell v. Codman, 154 Mass. 454; Parker v. Coburn, 10 Allen Reports 82. (3) Deceased prevented performance of contract and action lies. Peck & Co. v. Railroad, 96 Mo.App. 212; Claudius v. West End Co., 109 Mo.App. 346; Halpen v. Manny, 57 Mo.App. 59; Fitzgerald v. Hayward, 50 Mo. 516; Turney v. Baker, 103 Mo.App. 390.

Henry H. Furth and Shepard R. Evans for respondent.

(1) The test whether an instrument is a contract or a testamentary disposition of property is not the time of performance, but the time by which, by the terms of the instrument, a property right attaches under it. Rood on Wills, sec. 73, p. 43; Page on Wills, sec. 54, p. 55; In re Diez, 50 N.Y. 88; Carey v. Denis, 13 Md. 1; Nichols v. Emery, 109 Cal. 329; McKinnon v. McKinnon, 46 F. 713; Wheeler v. Durant, 3 Rich. Eq. 455; Reed v. Hazelton, 37 Kan. 325; Cover v. Stein's Executors, 67 Md. 452; Jaggers v. Estes, 2 Strobh. Eq. 346. (2) If a posthumous disposition was intended it is a will. Rood on Wills, sec. 60, p. 35.

OPINION

GRAY, J.

This cause is here on appeal from a judgment of the circuit court of the city of St. Louis, in favor of the defendant. The basis of the suit is the following contract: "Rockwood, Ill., September 25, 1895. Whereas, the undersigned, am expecting my life shall not be spared for any great length of time in the future, and whereas I desire my body shall be cremated after my death, and wish to arrange for such cremation now, so that my wish in that regard shall be fully carried out; now, therefore, I do hereby agree that there shall be paid to A. Barber, out of my estate, the sum of five hundred dollars, on consideration that said Barber shall take my remains after my death to the city of St. Louis, Mo., and have same properly cremated in such crematory as he shall select in said city. All expenses of transportation of my remains and the cremation thereof to be paid by the said Barber out of said five hundred dollars. Henry Berger. I accept the above obligation and agree to carry the same out as directed and agreed in the above stipulation. Alexander Barber. Witness, J. C. Barber, M. D., Joe Barber, Jr."

At the time the alleged contract was executed, Henry Berger and this plaintiff resided at Rockwood, Ill. Henry Berger died in the city of St. Louis on the 11th day of August, 1908. Some time prior to his death, he left Rockwood, Ill., and went to St. Louis, and died in a hospital on the date above mentioned. The plaintiff learned of his death and went to St. Louis for the purpose of obtaining possession of the remains, and having the same cremated. When he arrived in St. Louis on the morning of the 12th, he found that parties there had acted on the old adage, "It is the early bird that catches the worm," and the public administrator was in full charge of the estate of the deceased, and an undertaker of that city was making preparations to reduce the body to ashes without the aid or consent of this plaintiff. The plaintiff called on the undertaker and showed him his contract, and notified him that he was ready and willing to take charge of the body and relieve the undertaker of the unpleasant task. He was notified by the latter that it would not be necessary for him to do so, and that he intended to keep for his own use and benefit all the profits derived from the transaction.

The plaintiff filed his claim against the estate of Henry Berger which after setting out the above contract, alleges that the deceased, by removing from Illinois to St. Louis, and by permitting the undertaker in St. Louis to take charge of his remains, breached his contract, and plaintiff was damaged thereby in the sum of five hundred dollars, for which he asked judgment. The cause was tried before a jury in the circuit court on appeal, on the 10th day of November, 1909, and at the close of the plaintiff's testimony, the jury, under...