Rudd v. Rudd

• Decision Date: 04 February 1928
• Docket Number: No. 25366.,25366.
• Citation: 2 S.W.2d 585
• Parties: MARY E. RUDD, Appellant, v. CHARLES RUDD.
• Court: Missouri Supreme Court

2 S.W.2d 585

MARY E. RUDD, Appellant, v. CHARLES RUDD.

No. 25366.

Supreme Court of Missouri, Court en Banc.

February 4, 1928.

Appeal from Knox Circuit Court. — Hon. James A. Cooley, Judge.

REVERSED AND REMANDED.

Stewart & Stewart for appellant.

(1) The court committed reversible error in permitting defendant to introduce in evidence over the objection of plaintiff the contract between plaintiff and defendant. (a) This contract is null and void because it is indefinite. Defendant was awarded under this contract the management of this farm for an indefinite time. It amounts to an employment of defendant to manage this farm under the control of plaintiff. And it is the law that "an agreement for an indefinite period may be terminated at will by either party." Latshaw v. Stoddard, 194 S.W. 727; Davis v. Life Ins. Co., 172 S.W. 67; Brookfield v. Drury College, 139 Mo. App. 365. The fact that plaintiff retained the right of control, shows that the contract was for an indefinite period. Newall v. Printing Co., 20 L.R.A. (N.S.) 899. (b) The contract is invalid under the Statutes of Fraud because the description of the land is vague and uncertain. Fox v. Courtney, 111 Mo. 147. (c) This contract is unilateral and not binding on defendant. The agreement on the part of defendant to support his family is a duty imposed by the law and consequently is an insufficient consideration to support a contract. 6 Am. & Eng. Ency. Law (2 Ed.) 750-751; Grant v. Green, 41 Iowa, 88; Wentdover v. Baker, 121 Mo. 273. (d) The only averment in the contract to be considered by the court is as to the improvement. The language employed in that averment makes the control unilateral under all the decisions of this State. The defendant agrees to use the income to the support of the family and improvement of the real estate. He was not required to do any amount of improvements and no action could be maintained on that promise, for a failure to perform either at present or in the future. The law looks to the mutuality of the obligations, to see if it is enforceable and valid. 6 Am. & Eng. Ency. Law (2 Ed.) 730; Roberts v. Tie & Lumber Co., 264 S.W. 448; Cold Blast Co. v. Kansas Co., 114 Fed. 77. Whatever improvements have been made in the past, will not authorize an action, where there is no mutuality if defendant did not bind himself to perform in future. Morrow v. Southern Exp. Co., 101 Ga. 810; Transit Co. v. Chilton, 94 Ill. App. 6; Ico Co. v. Transit Co., 110 Ga. 142. Part performance cannot be urged as aiding a contract that is admittedly void and unenforceable. Turnpike Co. v. Roy, 13 Ohio St. 94; Gray v. Hinton, 7 Fed. 81. (2) Defendant's Exhibit 2 was incompetent as not tending to prove any issue in the cause and was prejudicial to the plaintiff. There is nothing in the record to show that any reference to this exhibit was made by any one prior to its offer. The exhibit dealt with alimony and suit money together with rent. The court had no jurisdiction in an ejectment suit to settle alimony and suit money and it was only offered in evidence to show that the amount defendant had been compelled to pay plaintiff, to enlist sympathy to the prejudice of plaintiff. (3) Defendant's Exhibit 3 was a final judgment on a mandate from the Court of Appeals, in a divorce suit wherein Mary E. Rudd was the plaintiff and Charles Rudd was the defendant. The judgment reversed the lower court and directed that plaintiff's petition be dismissed and defendant recover his costs. This judgment did not tend to prove any issue in this cause. And the only reason for its offer in evidence must have been to impress the jury that the defendant was the innocent and injured party, and that argument could only appeal to a jury in an ejectment suit. It was viciously prejudicial to plaintiff in the submission of her case.

James C. Dorian and Elmer O. Jones for respondent.

(1) The contract seems to take on more the nature of landlord and tenant, master and servant, and on its face shows that the parties had in mind an event that was bound to take place, that is, the death of one or both of the parties which would terminate the contract. It never was the law in this State that a person could enter into such contract as this one and then terminate the same at will, without regard to the rights of the other party. If Rudd did not "use good judgment and good management," that would be another question, but even then it could not be terminated on the mere whim of the plaintiff, but that would be a question for the court to determine at a judicial hearing. Fuller v. Millsap, 109 Mo. App. 61; Cummings v. Lumber Co., 130 Mo. App. 557; McKell v. Railway Co., 175 Fed. 321. (2) Regardless of whether the respondent was on the place under a contract, terminable at will, and regardless of every other question that may be raised in connection therewith, was the appellant entitled to the immediate possession of the place at the date of filing this suit in ejectment? Respondent was there by the consent of appellant. He at least was a tenant of some kind or nature, either a tenant at will or a tenant from year to year. And when a man begins to operate a farm under a contract, express or implied, that means from year to year, the owner has the right, under the law, to demand possession, without notice. The rights of the parties must be determined by the facts as existed between them on the date of the filing of the suit. Turner v. Dixson, 150 Mo. 422. (3) The contract would not in any manner be governed by the Statute of Fraud, but be that as it may, the statute being an affirmative defense, it devolved upon the appellant in some way to call it to the attention of the court and to opposing counsel that she relied upon the statute. Schmitt v. Rozier, 121 Mo. App. 306. (4) A contract may be unilateral and lack mutuality at the time it was made by express terms, and yet that may be remedied by the subsequent acts of the parties, or by the execution of the agreement, and then said subsequent acts of performance date back to the making of the agreement and makes it valid from that date. Laclede Const. Co. v. Iron Works, 169 Mo. 137; Roberts v. Anderson, 254 S.W. 723; Underwood Typewriting Co. v. Century Realty Co., 94 S.W. 787; Martin v. Ray County Coal Co., 232 S.W. 153.

WALKER, C.J.

This is a suit in ejectment to recover the possession of one hundred acres of land in Scotland County. The parties are wife and husband. Upon a change of venue a trial was had to a jury in Knox County, resulting in a verdict for the defendant. From the judgment rendered thereon the plaintiff has appealed.

The parties were married in February, 1891. After their marriage the wife, under her father's will, became invested, in 1904, with a life estate, remainder in her bodily heirs, in the one hundred acres of land in controversy. After repeated differences the parties separated in 1904. The wife brought suit for a divorce which was granted in the Circuit Court of Scotland County, in which the court refused to make any finding in regard to the separate property rights of the plaintiff. This decree (contrary to the finding of the trial court) was reversed by the St. Louis Court of Appeals (238 S.W. 537), on the ground that the facts did not authorize the same and because the trial court exceeded its jurisdiction in the appointment of the husband as a receiver for the wife's property. Subsequently the parties became reconciled towards each other, renewed their marital relations and continued to live on the wife's land. Upon the renewal of the amicable relations between the parties they entered into the following agreement:

"This contract made and entered into this the 6th day of December, 1904, by and between Mary E. Rudd of the one part and Charles Rudd of the other part, both of Scotland County, Missouri:

"Witnesseth: Whereas certain difficulties have existed heretofore between the said parties who are husband and wife and this difference having been fully settled between them, and the said Mary E. Rudd being the owner of 100 acres of land and a house and three lots in Gorin in her own right and being desirous that it should be properly managed and handled for the benefit of the family, she contracts and agrees with the said Rudd that he may take charge of the land and the rents and profits arising therefrom and handle and manage the same for the best advantage of their family, and shall be free from the control of any one except himself, and agrees that they shall work together to the best advantage of themselves and their children, and the said Rudd agrees upon his part to look to her interests and the interests of the family and to use the rents and profits and the income to the improvement of the real estate and the support of the family and for their best interests.

"This agency to continue as long as said Rudd shall use good judgment and good management.

"Witness our hands this 6th day of December, 1904.

                                                 "MARY E. RUDD
                                                 "CHAS. RUDD."
                

From the date of this instrument the parties lived together with their three children on the land in question, until October, 1918, when they again separated. After an ineffectual effort at a reconciliation on the part of the wife, a few days after the last separation this suit was brought with the result stated. Since October 15, 1918, the parties have lived apart. The husband has continued in the possession and use of the land, receiving the income therefrom, except $25 per month, which he has paid to or caused to be placed to the credit of the wife. The hearing was burdened with much irrelevant testimony. The trial was conducted and determined upon the defendant's theory that under the agreement the plaintiff was not entitled to the use and occupation of the land unless she lived with the defendant as his wife.

I. Dismissing from consideration much of the matter introduced as evidence at the...