Carrollton Monument Co. v. Geary

• Decision Date: 01 May 1922
• Docket Number: No. 14133.,14133.
• Citation: 240 S.W. 506,210 Mo. App. 45
• Parties: CARROLLTON MONUMENT CO. v. GEARY et al.
• Court: Missouri Court of Appeals

240 S.W. 506

210 Mo. App. 45

CARROLLTON MONUMENT CO. v. GEARY et al.

No. 14133.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Carrollton County; Ralph Hughes, Judge.

Action by the Carrollton Monument Company against Sophia Geary and another. Judgment for plaintiff, and defendants appeal. Affirmed.

S. J. &. G. C. Jones, of Carrollton, for appellants.

Atwood & Atwood, of Carrollton, for respondent.

TRIMBLE, P. J.

The controversy herein is over the question whether defendants should be required to pay for a monument which they verbally contracted with plaintiff should be prepared and properly set up in the cemetery on a lot designated by defendants. The agreed price for this was $325.

One of the defendants' contentions was that the monument did not conform to the character and style of the monument called for in the contract. But, as this question was submitted to the jury and by it decided adversely to defendants, it drops out of the case; and the only question now remaining is whether defendants are liable at all because of the statute of frauds, assuming that the defense of the statute was properly put in the case by the defendants.

The evidence is that the defendants called at plaintiff's shop (plaintiff being in the monument business), and looked through the "show room," where monuments were on exhibition, but found nothing to suit their choice. Thereupon defendants were taken out into the rear where blocks or slabs of granite in the "rough," just as they came out of the quarry, were kept. Defendants said they preferred and wanted something in a rough design, and finally came across a piece of granite which, upon being measured, proved to be of a size suitable for the monument they desired to obtain, and they selected it, and directed plaintiff to go ahead and finish up the monument according to defendants' ideas, cutting the monument so that the "die" would be as thick as the rough quarry block would permit. They also furnished a copy of the lettering to be placed thereon. The block of granite was thereupon brought into the shop, and the plaintiff proceeded to cut and prepare same, and inscribe thereon the inscription desired. While this was being done in the course of the following week, the defendants once or twice came to the shop, and observed the progress of the work, but made no objection thereto, and finally, when it was almost ready to be put up on the cemetery lot, the defendant Fred Geary came in and inspected it, and, after making some suggestions (which were afterward complied with), told plaintiff to go ahead and put it up.

Plaintiff thereupon erected the monument on the lot in the cemetery, and afterward defendants went once or twice to the cemetery with an officer of the plaintiff, and looked at the monument thus erected, but the defendants did not like it, and refused to pay for it.

As heretofore stated, the question is whether the statute of frauds applies to this contract. The decision of the question depends upon the interpretation of that branch of our statute of frauds now known as section 2170, R. S. 1919, and the application thereof to the facts herein. Said section reads as follows:

"No contract for the sale of goods, wares, and merchandise for the price of thirty dollars or upwards, shall be allowed to be good, unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized."

Whether a certain contract is within or without the particular section of the statute of frauds here considered is frequently a perplexing problem, and often made very much more so by the many apparently irreconcilable decisions rendered on the subject by the courts of different jurisdictions. Although there are three different views concerning the applicability of the statute which have been formulated into something in the nature of general rules and conveniently called the English, the New York, and the Massachusetts rules, yet frequently courts, while professing adherence to some particular one of these rules, do not do so entirely and unreservedly in their decisions, but apparently include some test of their own arising out of the particular facts involved. Doubtless it is because of the innumerable varying shades of different contracts arising out of the infinite variety of human circumstance that the courts have not been able to lay down more definite and satisfactory, or all-inclusive and binding, tests out of which can be formulated a general rule which will satisfactorily and universally apply. We do not hope, and therefore shall not attempt, to formulate a rule which will be any more definite or clearly announced than has been done heretofore, especially in view of the earnest and learned efforts bestowed on the subject by so many of the ablest judges, with such divergent results not entirely satisfactory to each other. This divergence of opinion, however, may be, and perhaps is, due to the fact that prior to the decision in Lee v. Griffin, 1 B. & S. 272, 30 L. J. Q. B. 252, 23 Eng. Rul. Cases, 191, 193, the law in England was in an...