Lancaster v. Elliott

• Decision Date: 22 November 1887
• Parties: GONA LANCASTER, Appellant, v. HENRY ELLIOTT ET AL., Respondents.
• Court: Missouri Court of Appeals

28 Mo.App. 86

GONA LANCASTER, Appellant, v. HENRY ELLIOTT ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 22, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

W. C MARSHALL, for the appellant: A written contract, to be binding, must be delivered, and takes effect only from delivery. Bunsen v. Huntington, 21 Mich 415. This is true, whether the instrument be under seal or not, and whether it be a deed, a promissory note, or any other written contract. 4 Kent Com. (9 Ed.) *454; Smith Cont. [2 Eng. Ed.] 6; 1 Chitt. Cont. [11 Am. Ed.] 4; Hawkes v Pike, 105 Mass. 560; Watkins v. Nash, Law Rep. 20 Eq. 261; McPherson v. Meek, 30 Mo. 347; Williams v. Williams, 67 Mo. 665; Carter v. McClintock, 29 Mo. 464. To constitute delivery, the writing must, in some way, pass beyond the control of the maker. Johnson v. Farley, 45 N.H. 505; Renard v. Walker, 39 Ill. 413; Cook v. Brown, 34 N.H. 460; Canfield v. Ives, 18 Pick. 253; Rutledge v. Montgomery, 30 Ga. 899. Moreover, there must be an acceptance of the delivery, express or implied. Johnson v. Farley, 45 N.H. 505; Curtis v. Gorman, 19 Ill. 141; Carey v. Dennis, 13 Md. 1; State v. Oden, 2 Har. & J. 108. To constitute an acceptance the acceptor must do some overt act. Conklin v. Cabanne, 9 Mo.App. 579. " An offer and acceptance constitute a bargain. The acceptance, however, must be unconditional." Stotesburg v. Massengale, 13 Mo.App. 226. " " " " An acceptance qualified with a condition does not bind the other party to the correspondence." Falls Wire Co. v. Broderick, 12 Mo.App. 378; Breicheisen v. Coffey, 15 Mo.App. 84.

E. P. JOHNSON, for the respondents: The acceptance was evidenced by an endorsement thereof on the offer and a deposit of the money to be paid thereunder. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. And that notice of the acceptance was not received by the offerer is immaterial. Insurance Co. v. Grant, 4 Ex. D. 216; Howard v. Daly, 61 N.Y. 365.

OPINION

LEWIS P. J.

This action was brought upon the following bond: " Know all men by these presents that we, Ida M. Lancaster, as principal, and Henry Elliott and Henry Elliott, Jr., as sureties, are held and firmly bound unto Gona Lancaster, in the sum of one thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, and administrators jointly and severally by these presents. Sealed with our seals and dated this 16th day of July, 1884. The condition of the above obligation is such, that whereas, on the 17th day of July, 1884, a decree was rendered in cause number 64,570, in the circuit court, city of St. Louis; now if said Ida M. Lancaster shall hereafter well and truly preserve and perform, upon her part, said decree in all respects, then this obligation to be void, otherwise of full force and virtue; and the damages to said Gona, by reason of any breach thereof, are agreed to be liquidated and adjusted at the amount of this bond."

That part of the decree which bears upon the present controversy is as follows: " And by consent of said parties it is further ordered and adjudged by the court that the plaintiff recover of the defendant the sum of nine hundred and fifty dollars, as and for alimony in gross; that said defendant pay to Messrs. Jones and Delano the sum of one hundred and fifty dollars as and for attorneys' fee, and to Luke Hite the sum of twenty-five dollars as and for attorney's fee. And, by consent of said parties, it is further ordered and adjudged by the court that the defendant pay for the maintenance of Gladys Lancaster, the minor child of said parties, on the first Saturday of each month hereafter, to the said plaintiff, at the East St. Louis Bank, in East St. Louis, Ill., the sum of thirty dollars a month, the first payment being made this day; and that should said thirty dollars a month, or any part thereof, be diverted from the maintenance of said child, at any time hereafter, the said allowance shall cease. It is further ordered by the court that the plaintiff shall have the custody of said child, but that said child shall not be carried to or kept in East St. Louis, Illinois, before the first of October, 1884, and that the defendant shall have the right and privilege to visit and see the said child on Tuesday, Thursday, and Saturday of each week, for the space of two hours on each of said days, during the afternoon, at the house of the plaintiff."

The breach of the bond is stated in the petition to consist of this: " That since, to-wit, the first day of May, 1885, she, the said Ida M. Lancaster, has not only wholly refused to allow the plaintiff to visit and see their said child, Gladys, for two hours on Tuesday, Thursday, and Saturday of each week, during the afternoon at the house of the plaintiff, but has absolutely refused to allow the plaintiff to see his said child at any time or place, although often requested so to do."

The answer admits the execution of the bond, and denies all other facts stated in the petition, and sets up the following affirmative defences: (1) That the bond was executed without consideration. (2) That the plaintiff forfeited whatever rights he had under the terms of the bond by failure to pay the alimony in gross, and monthly alimony decreed. (3) That a new agreement was entered into between the plaintiff and the defendant, Ida Lancaster, September 30, 1885, in reference to the time and manner in which the plaintiff might visit his child, Gladys, by which new agreement the provisions of the bond were superseded and cancelled.

The cause was tried before a jury who, at the close of the plaintiff's evidence, were instructed by the court that, under the evidence, the plaintiff was not entitled to recover.

The plaintiff gave evidence tending to show breaches of the bond, the execution of which was admitted, and which imports a consideration. Rev. Stat., sect. 663. Upon such evidence he was entitled to go to the jury, unless it affirmatively appears, by testimony offered on his behalf, that the agreement contained in the bond was superseded by some valid new agreement, as claimed in the answer.

Upon that subject the evidence pertinent to the question before us is as follows: The plaintiff was not permitted to see the child at the places and intervals mentioned in the decree, and thereupon, in March, 1885, ceased paying the monthly allowances provided for the support of the child by the decree. In October, 1885, he received the following written communication from the defendant, Ida:

" East St. Louis, October 13, 1885.

To Gona Lancaster:

I propose that any rights you may have under the decree of the circuit court of the city of St. Louis, state of Missouri, granting me a divorce, be relinquished in the following particulars, viz.: (1) That the bond of one thousand dollars, given by me for the observance of said decree, be withdrawn from the files of the court and cancelled. (2) That I shall not be required to write to you unless the child, Gladys, is in bad health. (3) That you shall see the child, Gladys, two hours each day in the afternoon on three days of each week, Tuesdays, Thursdays, and Saturdays--enter the front door and go into the reception-room in whatever house the said Ida M. Lancaster may live or reside. (4) That you at once pay all back monthly allowances provided by the said decree, and that the said monthly allowances still be continued. This stipulation to be put on file as part of the decree in the said cause; and in consideration thereof I revoke my right to proceed against you for disregarding the terms of said decree.

IDA M. LANCASTER."

Upon receipt of this offer the plaintiff wrote below the signature of the defendant, Ida, " accepted, Gona Lancaster," and deposited in the East St. Louis bank a check for two hundred and ten dollars, for the back alimony, and then went to the house where the defendant Ida resided, for the purpose (it would seem) of delivering the paper to her. The paper was never delivered because the plaintiff was refused entrance to the house.

The trial court, by non-suiting the plaintiff, necessarily decided that the proposal of October 13, 1885, became a valid contract between the plaintiff and the defendant Ida, owing to the plaintiff's action as above detailed, and that such is the legal effect of the plaintiff's conduct, as hereinabove mentioned, and hereinafter more fully detailed in his own testimony. The court, furthermore, necessarily decided that the contract thus entered into superseded the provisions of the bond sued upon, and rendered them unenforceable. The correctness of that ruling is, substantially, the only question presented for our consideration by this appeal.

As to what was done by the plaintiff upon the receipt of the proposal, bearing date October 13, 1885, the testimony is not quite clear, there being a conflict, as regards some of the details, between the testimony of the plaintiff and that of the cashier of the bank, one of his witnesses. The plaintiff himself states the facts as follows:

" The agreement [referring to the proposal of August 13] called for me to pay all back alimony up to that date, and I went to East St. Louis to the bank and deposited a check for two hundred and ten dollars back alimony, and signed the agreement which she had sent; took a receipt at the bank for the money, and went to her mother's house; her mother came to the door; the first thing she said, ‘ you shall not see the baby; ’ I said, ‘ I have got some papers for Mrs. Lancaster; ’ and with that she shut the door in my face, and I did not get to see anything."

" Q. Is that the last time you tried to see the child? A. Yes, sir."

On cross-examination, the plaintiff made the following...