Lesan Advertising Company v. Castleman
| Decision Date | 04 June 1912 |
| Citation | 148 S.W. 433,165 Mo.App. 575 |
| Parties | LESAN ADVERTISING COMPANY, Respondent, v. BEN T. CASTLEMAN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
REVERSED AND REMANDED. CERTIFIED TO SUPREME COURT.
STATEMENT.--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:
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.
REVERSED AND REMANDED. CERTIFIED TO SUPREME COURT.
Ben T Castleman for appellant.
Robt. W. Hall for respondent.
CAULFIELD J. Nortoni, J., concurs. Reynolds, P. J., concurs in that part of this opinion which holds that by appearance and answer and going to trial the defendant waived his objections to jurisdiction over his person, but dissents in a separate opinion from that part which holds that there was a finding of fact, under the statute; also from the result, his opinion being that the judgment of the circuit court should be affirmed.
CAULFIELD, J. (after stating the facts).
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. 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. Assn., 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:
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 parties thereto request it with the view of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case the court shall state in writing the conclusions of facts found separately from the conclusions of law."
Several cases decided by the courts of this state are cited as sustaining the defendant's contention, but after careful consideration of them we are convinced that none of them have that effect. They appear to decide nothing more than that the trial court must make the finding, if requested, and need not do so unless requested; that in order to be valid, the finding must be in writing, must not follow the rendition of judgment and must appear to be a finding of facts and not a mere opinion of the trial court. [Griffith v. K. C. Material & Const. Co., 46 Mo.App 539; Brinson-Judd Grain Co. v. Becker, 76 Mo.App. 375; Hamilton v. Armstrong, 120 Mo. 597, 613, 25 S.W. 545; Mead v. Spalding, 94 Mo. 43, 6 S.W. 384; Little v. Hooker Steam Pump Co., 122 Mo.App. 620, 100 S.W. 561.] These rulings cannot aid us in the determination of this case because the question here does not concern the duty of the trial court to make the finding, but relates to the effect of such finding after having been made. The finding we are concerned with is in writing, was filed contemporaneously with the rendition of the judgment, is set forth in the abstract as part of the record, and there was a record entry showing that it was filed. It is not a mere memorandum of opinion but purports to be and is clearly intended as the trial court's separate finding of facts. The parties so understood it, for they treated it as a finding of facts in their original briefs; the clerk of the trial court so understood it, for he designated it as such in the record entry. We may also add that cases holding or intimating that the findings must be excepted to and the evidence preserved by bill of exceptions in order that the findings may be attacked as not having evidence to support them or as not embracing all the issues of fact, are not applicable, because in this case the finding is not...
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