Kludt v. Connett

• Decision Date: 02 March 1943
• Docket Number: 38281,38282,38283,38284
• Citation: 168 S.W.2d 1068,350 Mo. 793
• Parties: Jonathan Kludt (Plaintiff) Respondent, v. William C. Connett, IV, Administrator ad litem of the Estate of Frank S. Barks, Deceased; St. Louis Union Trust Company, a Corporation, and Foster Holmes, as Trustees under the last Will and Testament of Frank S. Barks, Deceased; and Father Flanagan's Boys Home, Boys Town, Nebraska, Incorporated (Defendants) Appellants, Foster Holmes, as Executor of the Estate of Frank S. Barks, Deceased; Ann Stroh, Arthur H. Barks, Wilbur J. Barks, Hila Curtice Howard McGinness, and the unknown beneficiaries under a certain trust created by Item 3 of the last Will and Testament of Frank S. Barks, Deceased, and the unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary grantees of Frank S. Barks, Deceased (Defendants not appealing). C. Homer Redd (Plaintiff) Respondent, v. William C. Connett, IV, Administrator ad litem of Estate of Frank S. Barks, Deceased; St. Louis Union Trust Company, a Corporation, and Foster Holmes, as Trustees under the last Will and Testament of Frank S. Barks, Deceased; and Father Flanagan's Boys Home, Boys Town, Nebraska, Incorporated (Defendants) Appellants, Foster Holmes and Jonathan Kludt, as Executors under the last Will and Testament of Frank S. Barks, Deceased; Ann Stroh, Arthur H. Barks, Wilbur J. Barks, Hila Curtice Howard McGinness, and the unknown beneficiaries under a certain trust created by Item 3 of the last Will and Testament of Frank S. Barks, Deceased, and the unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary grantees of Frank S. Barks, Deceased (Defendants not appealing)
• Court: Missouri Supreme Court

168 S.W.2d 1068

350 Mo. 793

Jonathan Kludt (Plaintiff) Respondent, v. William C. Connett, IV, Administrator ad litem of the Estate of Frank S. Barks, Deceased; St. Louis Union Trust Company, a Corporation, and Foster Holmes, as Trustees under the last Will and Testament of Frank S. Barks, Deceased; and Father Flanagan's Boys Home, Boys Town, Nebraska, Incorporated (Defendants) Appellants, Foster Holmes, as Executor of the Estate of Frank S. Barks, Deceased; Ann Stroh, Arthur H. Barks, Wilbur J. Barks, Hila Curtice Howard McGinness, and the unknown beneficiaries under a certain trust created by Item 3 of the last Will and Testament of Frank S. Barks, Deceased, and the unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary grantees of Frank S. Barks, Deceased (Defendants not appealing). C. Homer Redd (Plaintiff) Respondent, v. William C. Connett, IV, Administrator ad litem of Estate of Frank S. Barks, Deceased; St. Louis Union Trust Company, a Corporation, and Foster Holmes, as Trustees under the last Will and Testament of Frank S. Barks, Deceased; and Father Flanagan's Boys Home, Boys Town, Nebraska, Incorporated (Defendants) Appellants, Foster Holmes and Jonathan Kludt, as Executors under the last Will and Testament of Frank S. Barks, Deceased; Ann Stroh, Arthur H. Barks, Wilbur J. Barks, Hila Curtice Howard McGinness, and the unknown beneficiaries under a certain trust created by Item 3 of the last Will and Testament of Frank S. Barks, Deceased, and the unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary grantees of Frank S. Barks, Deceased (Defendants not appealing)

Nos. 38281, 38282, 38283, 38284

Supreme Court of Missouri

March 2, 1943

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Affirmed.

Monsky Grodinsky, Marer & Cohen and Bryan, Williams, Cave & McPheeters for Father Flanagan's Boys Home, Boys Town Nebraska, Incorporated; Bryan, Williams, Cave & McPheeters for St. Louis Union Trust Company and Foster Holmes, as trustees under will of Frank S. Barks, appellants.

(1) The contract sued on clearly comes within the Statute of Frauds and the memorandum claimed by plaintiff to evidence the contract is insufficient. (a) The memorandum is insufficient because it was signed and executed on December 6, 1940 thirteen days prior to the date of the alleged contract. Rosenfield v. U.S. Trust Co., 195 N.E. 323; Wiessner v. Ayer, 176 Mass. 425, 57 N.E. 672; Williams v. Bacon, 2 Gray, 387; Munday v. Asprey, 13 Ch. D. 855; White v. Watkins, 23 Mo. 423. (b) The memorandum is also insufficient because it was never delivered and at the time of Mr. Barks' death was in his sole and exclusive possession. Sursa v. Cash, 171 Mo.App. 396; Poplin v. Brown, 205 S.W. 411; Hain v. Burton, 118 Mo.App. 577; Logan v. Waddle, 315 Mo. 980; Browne on the Statute of Frauds (5 Ed.), sec. 354, p. 481; Brown v. Brown, 33 N.J.Eq. 650; In re Brill's Estate, 197 N.W. 802; 27 C. J. 300, note 83. (c) The memorandum is insufficient because it fails to state the time or place of performance. Smith v. Shell, 82 Mo. 215; Williston on Contracts, sec. 571, p. 1645; Arky v. Commission Co., 185 Mo.App. 241; Soper v. Strean Inv. Co., 253 S.W. 796. (2) The plaintiff is not entitled to the equitable remedy of specific performance for the reasons stated below. (a) There was no mutuality of obligation under the alleged contract. Glass v. Rowe, 103 Mo. 513; Houtz v. Hellman, 228 Mo. 655; McCall v. Atchley, 256 Mo. 39; Falder v. Dreckshage, 227 S.W. 929; Nokol Company v. Becker, 318 Mo. 292; Jones v. Jones, 333 Mo. 478. (b) Equity will not grant specific performance when, as here, such relief would be inequitable. Frederich v. Union Electric L. & P. Co., 82 S.W.2d 79. (c) The alleged contract was a matter of law nothing but an unexecuted gift. 28 C. J. 624; Van Deusen v. Rowly, 8 N.Y. 359; Gray v. Barton, 58 N.Y. 69; Ten Eick v. Whitbeck, 135 N.Y. 40; In re Lynch's Estate, 69 A. 299; Peck v. Vandenberg, 30 Cal. 11; Solomon v. Wilson, 41 Cal. 595. (3) No sufficient tender was ever made.

Fordyce, White, Mayne, Williams & Hartman, Walter R. Mayne and G. Carroll Stribling for respondents.

(1) A note or memorandum, in writing, executed before the contract is made, if otherwise sufficient, satisfies the Statutes of Frauds, particularly where, as here, the prior written memorandum is adopted by the parties as a memorandum of their agreement at the time the oral contract is entered into. R S. 1939, sec. 3355; 2 Restatement of the Law, "Contracts," sec. 214; Black & Snyder v. Crowther & Andrino, 74 Mo.App. 480; Carter v. Western Tie & Timber Co., 184 Mo.App. 523; Anderson v. Hall, 202 S.W. 539; Gates City Natl. Bank v. Elliott, 181 S.W. 25; 2 Williston on Contract (Revised Ed.), secs. 579, 590; 2 Page on Contracts, sec. 685, p. 1028; Benjamin on Sales (7 Ed.), secs. 201-204, p. 183; Browne, Statute of Frauds (5 Ed.), sec. 345 (a), p. 468; Shippey v. Derrison, 5 Esp. 190, 170 Eng. Rep. (Full Reprint), p. 72; Banks v. Williams, 12 S. R. N. S.W. 382; Reuss v. Picksley, LR 1 Ex. 342, Ex. Cheq. 1865 -- Eng.; Smith v. Hunt, 50 Ind.App. 592, 98 N.E. 841. (2) The fact that the memorandum was never delivered to plaintiff Kludt does not affect its sufficiency under the Statute of Frauds, because: (a) The Statute of Frauds does not require that the note or memorandum executed by the party to be charged be delivered to the other party to the contract. R. S. 1939, sec. 3355; Moore v. Mountcastle, 61 Mo. 424; Anderson v. Hall, 202 S.W. 539; 1 Restatement of the Law, "Contracts," secs. 207-208; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343; Williston on Contracts (Revised Ed.), sec. 578. (b) Delivery to the other party is of no importance from the standpoint of the fundamental purpose the statute was intended to serve, which was the prevention of frauds and perjuries. 25 R. C. L., sec. 313, p. 676; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343. (c) A note or memorandum which is merely written evidence is to be distinguished from a deed or other instrument which becomes effective as a present conveyance only upon delivery. Lowther v. Potter, 197 F. 196; Williston on Contract (Revised Ed.), sec. 578. (d) In any event, the memorandum was delivered by Barks to his own agent, Mrs. Ann Stroh, and this is sufficient to satisfy the statute. Moore v. Mountcastle, supra; Cunningham v. Williams, 43 Mo.App. 629; Crawford v. Dahlenberg, 283 S.W. 65; Beall v. Miller, 207 Mo.App. 32; Authorities discussed in Annotation, 112 A. L. R. 490. (e) The execution of the memorandum in the presence of Holmes and Dr. Birdsall and the witnessing of it by them was a publication of the memorandum sufficient to satisfy the Statute of Frauds. Cash v. Clark, 61 Mo.App. 636; Williston on Contracts (Revised Edition), sec. 579, p. 1662; Moore v. Mountcastle, supra; Cunningham v. Williams, supra; Beall v. Miller, supra. (3) The memorandum was not required to set forth the time and place of delivery because these matters were not specifically agreed upon by the parties. (a) In the absence of any express agreement covering these points, the law implies that the contract is to be performed within a reasonable time and at the usual place, and the memorandum satisfies the Statute of Frauds even though such matters are not expressly set forth therein. Smith v. Shell, 82 Mo. 215; Darnell v. Lafferty, 113 Mo.App. 282; Soper v. J. G. Strean Inv. Co., 253 S.W. 796; Leesley Bros. v. A. Rebori Fruit Co., 162 Mo.App. 195; Jungkuntz v. Carter, 254 S.W. 359. (4) Since the memorandum was signed by Barks, the party to be charged, the agreement is enforceable in equity by action for specific performance. (a) Cases involving contracts executed by the party to be charged, but which are not enforceable by the other party by reason of the provisions of the Statute of Frauds, constitute an exception to the general rules requiring mutuality of remedy and obligation which are applied by courts of equity in other situations. Ivory v. Murphy, 36 Mo. 534; Mastin v. Grimes, 88 Mo. 478; Smith v. Wilson, 160 Mo. 657; Appel-Hemmelman R. E. Co. v. Spellbrink, 211 Mo. 671; Williston on Contracts (Revised Ed.), sec. 1437; Pomeroy on Equitable Remedies (4 Ed.), sec. 770. (5) The contract was fair and equitable and should be specifically enforced by a court of equity. (a) Mere inadequacy of consideration is no defense to an action for specific performance where there is no evidence of fraud, undue influence, or overreaching on the part of the plaintiff. Pomeroy's Equity Jur. (5th Ed.), sec. 926; Bean v. Valle, 2 Mo. 126; Harrison v. Towne, 17 Mo. 237; Pomeroy on Equitable Remedies (4 Ed.), sec. 790; Williston on Contracts (Revised Ed.), sec. 1428. (b) When the benefits inherent in the contract, from the standpoint of Barks, are considered, the consideration is not inadequate nor is the agreement unfair. (c) There being a sufficient memorandum in writing, this is no case of a purely oral contract which a court of equity must enforce, if at all, against the very terms of the Statute of Frauds. Hence, cases involving purely oral contracts and setting up the requirements which must exist in order to justify a court of equity's enforcement of a contract in contravention of the terms of the Statute of Frauds are not in point. Selle v. Selle, 84 S.W.2d 877, 337 Mo. 1234; Sportsman v. Halstead, 147 S.W.2d 447; Bick v. Miller, 142 S.W.2d 1021, 347 Mo. 286; Niehaus v. Madden, 155 S.W.2d 141. (6) The contention that the agreement was a gift and not a contract of sale is contrary to the trial chancellor's finding and to all the evidence in the case. The finding of the trial court on this point, being supported by the evidence, should be followed by this court on appeal, even in an...