L. Metz v. H. Warrick

• Decision Date: 06 March 1925
• Citation: 269 S.W. 626,217 Mo.App. 504
• Parties: L. METZ, Doing Business as METZ LUMBER COMPANY, Appellant, v. H. WARRICK, GEORGE H. SEIFERT, L. C. FIELDS, and J. T. SIGLER, Respondents.
• Court: Missouri Court of Appeals

269 S.W. 626

217 Mo.App. 504

L. METZ, Doing Business as METZ LUMBER COMPANY, Appellant, v. H. WARRICK, GEORGE H. SEIFERT, L. C. FIELDS, and J. T. SIGLER, Respondents.

Court of Appeals of Missouri, Springfield

March 6, 1925

Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.

AFFIRMED.

Judgment affirmed.

Sam F Phillips, of Poplar Bluff, for appellant.

(1) The following Missouri cases hold that a performance by one party of an oral contract which the law requires to be in writing takes the contract out of the Statute of Frauds; to say it in other words, if an oral contract is entered into in a case where a written contract is required by law and if one of the parties to such oral contract performs it in full on his part and the other party accepts performance of the contract, on his part, this performance on the part of one party and acceptance by the other, takes the contract out of the Statute of Frauds and makes the contract as enforceable as though it had been entered into with all of the formalities required by Statute. See 27 Corpus Juris, page 350, footnote 56 citing: McGinnis v. McGinnis, 274 Mo. 285, 202 S.W. 1087; Hubbard v. Kansas City Stained Glass Wks Co., 188 Mo. 18; Maupin v. Chicago, etc., R. Co., 171 Mo. 187; Bless v. Jenkins, 129 Mo. 647; Sharkey v. McDermott, 91 Mo. 647; Winters v. Cherry, 78 Mo. 244; Self v. Cordell, 45 Mo. 345; Suggett v. Cason, 26 Mo. 221; Farrer v. Patton, 20 Mo. 81; Ordelheide v. Traube, 183 Mo.App. 363; Starks v. Garver Lbr. Mfg. Co., 182 Mo.App. 241; Hedden v. Schneblin, 126 Mo.App. 478; Cape Girardeau, etc. R. Co. v. Wingerter, 124 Mo.App. 426; Hasenbeck v. Hasenbeck, 111 Mo.App. 38; Mitchell v. Branham, 104 Mo.App. 480; Donovan v. P. Schoenhofen Brewing Co., 102 Mo.App. 427; Chenoweth v. Pacific Express Co., 93 Mo.App. 185; Donovan v. Schoenhofen Brewing Co., 92 Mo.App. 341; Clark v. Cordry, 69 Mo.App. 6; Smock v. Smock, 37 Mo.App. 56; Hoyle v. Bush, 14 Mo.App. 408. Where an oral promise relating to the transfer of real property has been performed, the contract of which it is a part is no longer within the Statute of Frauds by reason of such performance and accordingly an action will lie for breach thereof. 27 Corpus Juris, 351, citing, Woodson v. Hubbard, 45 Mo.App. 359; Parker v. Niggerman, 6 Mo.App. 546. There is also a Statute of Frauds which provides that all contracts that are not to be performed within a year must be in writing. This section of the Statute is somewhat analogous to the one under consideration in this case. Anyhow, the principle is the same and the decisions applicable to one of the sections would be applicable to the other. It has been held that although the contract is an oral one, and although it is not to be performed within one year, still, if it is performed within one year by one of the parties thereto, that takes the contract out of the Statutes of Fraud, and the party who performed the contract within a year has a cause of action against the other party for breach. Bird v. Bilby, 202 Mo.App. 212, 220, 215 S.W. 909. (2) Even though the contract is unenforceable between the parties, this fact does not invalidate the bond, unless the contract is void on account of providing for an act mala in se, malum prohibitum on the contract was entered into as a result of fraud practiced upon one of the parties to it. Mitchell v. Zurn, 221 S.W. 955, and cases cited. Sureties on bonds to a corporate obligee are liable, although the transaction may be ultra vires as to the corporation. 32 Cyc., 26, footnote 1, citing, Am. Bonding Co. v. Aottumwa, 137 F. 572, 70 C. C. A. 270. Sureties for an agent appointed to negotiate bonds for a city are liable for money borrowed by him on the bond which he did not pay over, although the council of the city transcended power issuing the bond. Indianapolis v. Skeen, 17 Ind. 628, cited at 32 Cyc. 26. Sureties for an agent appointed by a railroad company to sell coal are liable for money collected by him, although the company did not have power to deal in coal. Northwestern Railroad Co. v. Whinrey, 2 C. L. R. 1207, 10 Exch. 77, 23 L. J. Exch. 261, 2 Weekly Rep. 521, cited at 32 Cyc. 26, footnote 1. Sureties for a bank cashier are liable, although he is not a director, as required by Statute. Lionberger v. Krieger, 88 Mo. 160, affirming 13 Mo.App. 313. This provision contains (as to selection of cashier) no prohibitory or negative words and announces no penalty or other consequences, if it is not complied with; it is therefore simply directory and not mandatory. Bank of Brighton v. Smith, 5 Allen, 413-417; State ex rel. Atty. Gen. v. Mead, 71 Mo. 266-269; West v. Ross, 53 Mo. 350, 354; City of Cape Girardeau v. Riley, 52 Mo. 424; City of St. Louis v. Foster, 52 Mo. 513; Jump v. McClurg, 35 Mo. 153, 196; Hicks v. Chouteau's Admr., 12 Mo. 341. The defendants are estopped by the recitals of the bond from claiming exemption from the obligation by reason of the alleged fact that the contract between Warwick and the School Board was not entered into with the formalities required by law. Carada v. Carondelet, 8 Mo. 644, 649; Western Boatmens Benevolent Association v. Cribben, 48 Mo. 37-43; Hundley v. Filbert, 73 Mo. 34; Commonwealth v. Peal, 14 Lee Monroe, 29; Williamson v. Wols, 37 Ala. 298; Sprowl v. Lawrence, 33 Ala. 674-688; Green v. Wardwell, 17 Ill. 278; Jones v. Scanland, 6 Humph. 195; United States v. Maurice, 2 Brock. 97-113; Crawford v. Howard, 9 Del. 314; Stephens v. Crawford, 1 Kelley 474, S. C., 3 Kelley 499; Iredell v. Barbee, 9 Iredell 250; Aulanier v. Governor, 1 Tex. 653; Mayor of Homer v. Merritt, 27 La. Annual 567. The sureties upon the bond of a de facto officer, as well as the officer himself, are estopped to deny the validity of his appointment when sued for money received by him in his official capacity. Taylor v. State, 51 Miss. 79; State v. Cooper, 3 Miss. 615; Boone County v. Jones, 54 Iowa 699; State v. Rhoades, 6 Nev. 352; Montieth v. Commonwealth, 15 Gratt. 172; People v. Jenkins, 17 Cal. 500; Town of Lyndon v. Miller, 36 Vt. 329; State v. Bales, 36 Vt. 387; Shroyer v. Richmond, 16 Ohio State 455; Marshall v. Hamilton, 41 Miss. 229; Jones v. Scanland, 6 Humph. 195. Though the bond were not good as a statutory bond, yet if it contravenes no rule of law or public policy, it is good as a common-law bond. Henoch v. Chaney, 61 Mo. 131; Graves v. McHugh, 58 Mo. 499; Barnes v. Webster, 16 Mo. 258-265; Bank of Brighton v. Smith, 5 Allen 413; Grocers Bank v. Kingman, 16 Gray, 474; United States v. Bradley, 10 Peters, 343.

John A. Gloriod, of Poplar Bluff, for respondents.

(1) Respondents decline to adopt appellant's theory of their defense to the effect that the only defense interposed was that the contract was not in writing, and that it did not comply with the provisions of sec. 2164, R. S. 1919. The case having been tried before the court and no declarations of law asked or given, if upon any theory the action of the court can be sustained, this case should be affirmed. (2) There was no written contract entered into between the school board and the defendant, Warwick, as required by sec. 2164, R. S. 1919. The only written instrument was the bid submitted by Mr. Warwick, which is set out on page 24 of appellant's abstract. This bid does not appear to have been accepted in writing by the school board. This being true, the contract was void ab initio, cannot be ratified and there can be no recovery for material and supplies furnished thereunder. Sec. 2164, R. S. 1919; Compressed Air Company v. Fulton, 166 Mo.App. 30; Lives v. Rolla, 184 Mo.App. 296; Brown Coal Company v. City of New Madrid, 208 S.W. 109. (3) Appellant secured judgment against the defendant Warwick which was not appealed from by said defendant and there is nothing in the entire record indicating that the judgment could not be satisfied in full against him and for this reason alone the judgment in favor of the respondents should be affirmed. Austin v. Randell, 207 Mo.App. 77. (4) The bond given in this case is not a statutory bond as contemplated by sec. 1040, R. S. 1919. Neither is it the character of common-law bond which permits a third person not a party to it, to sustain an action thereon, for the reason that it does not appear from the terms of said bond that appellant is of the class intended to be covered thereby. It is true that the petition alleges that the bond was given for the benefit of appellant and other materialmen, but this is simply a conclusion and not a statement of constitutive facts. Builders Material & Supply Co. v. Construction Co., 204 Mo.App. 77; Lumber Co. v. Banks, 136 Mo.App. 44; Section 1040, R. S. 1919; Manufacturing Co. v. Clark, 208 Mo. 89. (5) The general rule is that sureties are favorites of the law and a contract of suretyship must be strictly construed so as to impose on the sureties only those burdens clearly within the terms of their contract and must not be extended by implication or presumption. 32 Cyc. 73; Beers v. Wolf, 116 Mo. 179. (6) Appellant's brief cites many cases, most of which relate to the Statute of Frauds and to cases arising in other States where the statutes governing contractor's bonds are dissimilar to our own. This particular question has been before the courts of this State many times and it has invariably been held that either the contract or bond or both of them must provide for the payment of material furnished a contractor on a public building in order to give such materialman a cause of action against the sureties on the contractor's bond. Lumber Co. v. Banks, 36 Mo.App. 44; Fellows v. Kreutz, 189 Mo.App. 547; Fogarty v. Davis, 264 S.W. 879; Builders Material & Supply Co. v. Construction Co., 204 Mo.App. 77.

COX, P. J. Bradley, J., concurs; Bailey, J., not sitting.

OPINION

COX,...