Lesan Advertising Co. v. Castleman

• Decision Date: 04 June 1912
• Citation: 165 Mo. App. 575,148 S.W. 433
• Parties: LESAN ADVERTISING CO. v. CASTLEMAN.
• Court: Missouri Court of Appeals

148 S.W. 433

165 Mo. App. 575

LESAN ADVERTISING CO. v. CASTLEMAN.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. APPEARANCE (§ 24)—WAIVER OF OBJECTIONS.

Where, after a motion to quash the summons and dismiss the suit was overruled and an exception saved, defendant appeared and answered, and went to trial on the merits, the objection to the jurisdiction of the court over defendant's person was waived.

2. JUDGMENT (§ 256)—APPEAL AND ERROR (§ 672)—CONFORMITY TO FINDINGS—ERROR APPARENT ON RECORD.

Where the court makes a special finding of facts, a judgment not supported by the findings is erroneous and will be reversed as for error apparent on the record.

3. FRAUDS, STATUTE OF (§ 82)—SALE OF GOODS—NATURE OF CONTRACT.

The subject-matter of an agreement by a party to make a number of drawings of an article to be used in connection with advertisements of such article is a chattel, and the agreement is void, unless the requirements of the statute of frauds relative to the sale of goods and chattels (Rev. St. 1909, § 2784) is complied with.

4. JUDGMENT (§ 256)—CONFORMITY TO SPECIAL FINDINGS.

Where the court found specially an agreement for the sale of goods within the statute of frauds, but did not find that any memorandum in writing was made, that anything was given in earnest, or in part payment, or that the buyer received and accepted a part of the goods, a judgment for the seller was unsupported by the finding, since, where the special finding is silent, it will be regarded as a finding against the party holding the burden of proof.

5. FRAUDS, STATUTE OF (§ 161)—SALE OF GOODS—DELIVERY AND ACCEPTANCE.

A finding that plaintiff, who had agreed to make and deliver to defendant a completed article, exhibited it to defendant, who made no objection, but asked plaintiff to retain it, because defendant was not ready to proceed further at that time, shows at most an offer to deliver, and does not show a sufficient receipt and acceptance by defendant under the statute of frauds.

6. TIME (§ 11)—DAYS—FRACTION OF DAY.

Where the trial court's record entry shows that its finding of fact was filed on the day judgment was rendered, it cannot be disregarded on the ground that it was filed after delivery of the judgment.

7. JUDGMENT (§ 256)—CONFORMITY TO FINDINGS OF FACT—REQUEST—NECESSITY.

Although Rev. St. 1909, § 1972, only requires the trial court to make special findings

of fact when requested to do so, where the court without request made a finding of fact not constituting a mere memorandum of opinion, which was designated by the court in its record entry and was treated by the parties in their original briefs on appeal as a finding, it had all the force of any finding, and the judgment must be supported thereby.

Reynolds, P. J., dissenting.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by the Lesan Advertising Company against Ben T. Castleman, doing business as the Jewel Vibrator Company. From a judgment for plaintiff, defendant appeals. Transferred to Supreme Court.

This action was brought before a justice of the peace of the city of St. Louis, to recover $84.50 for five "wash drawings" made to order for the defendant. Upon appeal to the circuit court the defendant moved to quash the summons and dismiss the suit on the ground that the justice had acquired no jurisdiction of the person. This motion was overruled and the defendant duly excepted. Thereupon the defendant filed an answer pleading the statute of frauds. A trial was had, at which the plaintiff and defendant appeared and the cause was submitted to the court sitting as a jury, and the plaintiff had judgment for the amount sued for, with interest.

The court stated in writing the conclusions of fact found separately from the conclusions of law, as follows: "In June or July, 1906, defendant called upon plaintiff company and requested it to make certain drawings of a vibrator which the defendant proposed to manufacture through a company which he was then planning to form under the name of the Jewel Vibrator Company. He furnished it the vibrator, with the request that certain drawings should be made of the same for the purpose of using reproductions thereof in the advertising matter to be afterwards prepared. No arrangement was made as to the price to be paid for said drawings. The drawings, five in number, were prepared by the plaintiff and were exhibited to the defendant, and he made no objection to the same, but requested plaintiff to retain them, which plaintiff did; the defendant stating that he was not ready to proceed further with the advertising in which the drawings would be used. The reasonable cost of making said drawings, or the value of the work in the making of same, was $84.50."

Thereupon the defendant filed a motion in arrest of judgment and for judgment non obstante veredicto, which the court overruled, and defendant excepted. Thereupon the defendant duly prosecuted his appeal to this court, assigning as error the overruling of the motion last mentioned.

Ben T. Castleman, of St. Louis, pro se. Robert W. Hall, of St. Louis, for respondent.

CAULFIELD, J. (after stating the facts as above).

The defendant urges his motion in arrest, etc., should have been sustained on two grounds: First, that the record discloses a lack of jurisdiction of the person; second, that the findings of fact did not warrant a recovery, disclosing, as they did, a transaction within the statute of frauds without compliance therewith. We will pass upon these contentions in their order.

I. The defendant waived his objection to the lack of jurisdiction of the person by appearing and answering and going to trial on the merits of the cause after his motion to quash the summons and dismiss the suit had been overruled and exception saved. Kronski v. Mo. Pac. Ry. Co., 77 Mo. 362, 368; Thomasson v. Mercantile Town Mut. Ins. Co., 217 Mo. 485, 495, 116 S. W. 1092.

II. We are of the opinion, however, that defendant's motion in arrest, etc., should have been sustained. Where there is a special finding of facts, it is error to enter a judgment not supported by it, and such a judgment should be reversed by an appellate court as for error apparent on the record. Nichols v. Carter, 49 Mo. App. 401; Stotts City Bank v. Miller Lbr. Co., 102 Mo. App. 75, 82, 74 S. W. 472.

The subject-matter of the contract in this case was a chattel, a completed article, to be made and delivered, and the title thereto was not to vest in the purchaser, this defendant, until the thing was completed and delivered. The transaction was then clearly within the statute of frauds. Section 2784, R. S. 1909. See Burrell v. Highleyman, 33 Mo. App. 183; Pratt v. Miller, 109 Mo. 78, 18 S. W. 965, 32 Am. St. Rep. 656; Schmidt v. Rozier, 121 Mo. App. 306, 98 S. W. 791.

The defendant pleaded the statute, and thereby invoked it as a defense, and made it incumbent upon plaintiff to prove a compliance with some one of its conditions in order to a recovery. And in order to support the judgment a finding of the facts constituting such compliance must be affirmatively included in the special finding, there being one, "as on each material issue on which it appears to be silent it may be regarded as a finding against the party holding the affirmative or burden of proof." Stotts City Bank v. Miller Lumber Co., 102 Mo. App. 75, 82, 74 S. W. 472. Now the special finding which the court made in this case does not include any finding or even a suggestion that there was a note or memorandum in writing made of the bargain, or that the buyer gave anything in earnest to bind the bargain, or in part payment, as contemplated by the statute; nor is there any finding of facts sufficient to constitute an acceptance and actual receipt by the buyer of part of the goods sold within the meaning of the statute.

The court found merely that the drawings were "exhibited to the defendant and he made no objection to the same, but requested plaintiff to retain them, which plaintiff did; the defendant stating that he was not ready to proceed further with the advertising in which the drawings would be used." It is apparent from this that the plaintiff never parted with the possession, dominion, or control of the drawings. At the most it offered to make delivery, but at the request of defendant refrained from doing so; the latter not being ready for the drawings at that time. This was entirely insufficient to constitute an acceptance and actual receipt of the drawings within the meaning of the statute. See Kirby v. Johnson, 22 Mo. 354; Harvey v. St. Louis Butchers', etc., Ass'n, 39 Mo. 211; Sotham v. Weber, 116 Mo. App. 104, 92 S. W. 181.

III. The foregoing is sufficiently responsive to the arguments which were presented by counsel in their briefs on the original hearing in this court, but on motion for a rehearing other matters are suggested which we deem proper to notice. First, it is suggested that the finding of facts was filed after delivery of the judgment. There is nothing in the record to sustain that assumption. The abstract of the record entries in that respect is as follows: "June 20, 1910. Trial by court, judgment for plaintiff, against defendant and United States Fidelity & Guaranty Company, surety, for $90.82 and costs. Court's finding filed." It is apparent from this that the court made and filed its written finding on the same day it rendered judgment, and this was sufficient. Stotts City Bank v. Miller Lumber Co., 102 Mo. App. 75, 74 S. W. 472.

Second, plaintiff contends that the record does not disclose that any request was made by either party for a separate written finding of facts, and therefore the finding has no validity. The statute dealing with such findings is as follows: "Section 1972. Trial of Question of Fact by Court—Duty as to Findings.—Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the...