Sexton v. Sexton
| Decision Date | 27 July 1922 |
| Citation | 243 S.W. 315,295 Mo. 134 |
| Parties | NELLE SEXTON, Administratrix of Estate of W. F. SEXTON, Appellant, v. SHIRLEY SEXTON |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Affirmed.
John T McKay and L. R. Jones for appellant.
(1) The trial court erred in finding that there was an acceptance of the proposal of R. E. Sexton as mailed to his son Shirley L Sexton, because said finding was without any evidence whatever to support it, and was in direct conflict to defendant's own testimony. (2) The court erred in finding the defendant entitled to the fruits of even the prospective contract embodied in such proposal, because by defendant's own testimony it was shown that he had failed to perform all the obligations devolving upon him to be performed by the terms of said proposal. (3) An acceptance is always a condition precedent to the existence of a contract. Ratcliffe v. Benefit Association, 184 Mo.App. 345; Chapin v. Cherry, 243 Mo. 401; 13 C. J. 272-274; Bishop on Contracts (2 Ed.) p. 36. (a) The proposal from R E. Sexton to Shirley L. Sexton was of such nature as to make the communication of an acceptance by Shirley to R. E. Sexton absolutely essential. 13 C. J. 284; Leesley Bros. v. Fruit Company, 162 Mo.App. 195. (b) Before one can take the fruits of even a prospective contract, the one standing upon the contract must show performance of the conditions devolving upon him to be performed. 13 C. J. 627.
Cox & Rutledge and Ely, Pankey & Ely for respondent.
(1) Appellant seeks to term and treat the written instrument set up in defendant's answer, and offered in evidence, as a "proposal." It is not in the words of a "proposal." It is not written in the language of a "proposal." It is not a letter, and was not accompanied with a letter, and in R. E. Sexton's preparation to leave town he simply deposited it in the mail for Shirley Sexton. (2) As the appellant did not request a special finding of facts, and the court made none, the assumption of appellant that the court found and construed the instrument to be a "proposal," is a mere assumption and without foundation, as to what the court's finding thereon was. Appellant cannot now complain, as he did not ask a special finding. R. S. 1909, secs. 1972 and 2081; Steel v. Johnson, 96 Mo.App. 148; Advertising Co. v. Castleman, 165 Mo.App. 575. (3) According to the testimony R. E. Sexton owed store debts to the amount of $ 2,500. Shirley Sexton took charge of the store and the money before his father's death. He paid one account before the death of the said R. E. Sexton. Elery Zimmerman testified, that R. E. Sexton said to him, that Shirley Sexton and, since his father's death, Shirley L. Sexton, has paid all the debts of the said R. E. Sexton, his father. In the face of all of these facts can it be said that the instrument was a "proposal," and that the defendant was not entitled to the property? (4) There was a complete sale and transfer of the stock of goods from R. E. Sexton to Shirley L. Sexton for a good consideration without reservation or conditions. (5) The appellant did not ask any declarations of law and none were given by the court, and the presumption is that the finding and judgment was based on the theory which authorized it. Bank v. Barbee, 198 Mo. 465. (6) Defendant's answer was in writing under oath, but the plaintiff did not file any answer, or denial thereof, a jury was waived, and the court sat as a trier of the facts and his finding therein is conclusive. Baumhoff v. Ry. Co., 171 Mo. 125; Brannock v. Jaynes, 197 Mo.App. 166; Phillips v. Barnes, 105 Mo.App. 428. When the answer covered all the facts and was not denied, this furnishes a full explanation of the general verdict, and a safe test of its accuracy. Mobley v. Ry. Co., 89 N.W. 105. (7) The court had the instrument before him, and all the witnesses, and, as said in Snyder v. Stemmons, 151 Mo.App. l. c. 162, "the case, though one at law, was by the consent of the parties tried by the court without a jury and the findings of fact are as conclusive on appeal as would be the verdict of a jury," and the finding and judgment of the court was for the right party. Snyder v. Stemmons, 151 Mo.App. 162; Butts v. Grunby & West, 135 Mo.App. 31; Chandler v. Hedrick, 187 Mo.App. 660; Brannock v. Jaynes, 197 Mo.App. 166-169; Lesley Bros. v. Fruit Co., 162 Mo.App. 208. (8) The instrument is a valid and binding instrument. It was not a "proposal," but even a proposal to do or not to do a certain thing for a consideration in writing signed and assented to by some positive act of the non-signing party constitutes a valid instrument. Any overt act of acceptance is sufficient. A contract, or bill of sale, evidencing a former contract, or agreement, signed by one of the parties only, when acted upon by the other party is binding. Amer. Pub. & Eng. Co. v. Walker, 87 Mo.App. 503; Smith v. Williams, 123 Mo.App. 485; Brown v. Smith, 113 Mo.App. 59; Allen v. Chouteau, 102 Mo. 309.
This is a proceeding under Sections 62, 63, 64 and 65, Revised Statutes 1919, and was begun in the Probate Court of Dunklin County by W. F. Sexton, a son of R. E. Sexton, deceased, to compel Shirley L. Sexton, a brother of complainant, to deliver to R. E. Sexton's administratrix certain property alleged to belong to the estate in her charge. Interrogatories were propounded. An answer to the affidavit and citation was filed, and answers to the interrogatories were made. The matter was heard in the probate court and a finding made and judgment rendered for respondent. An appeal was duly taken by W. F. Sexton to the circuit court. Thereafter, W. F. Sexton died and his administratrix was substituted. The matter came on for hearing, a jury was waived, the evidence was heard and judgment rendered for respondent. An appeal was taken to the Springfield Court of Appeals, which transferred the cause here because the property claimed was alleged to be of a value greater than $ 7500, exclusive of interest and costs.
The property in question consists of a stock of general merchandise; $ 1036, on deposit in the Bank of Malden, and "notes, mortgages, deed of trust and other evidences of debt of the value of $ 1,000." The affidavit also sets up that Mrs. Patty Sexton, widow, was the duly appointed and qualified administratrix of R. E. Sexton, and that deceased left four children -- W. F. Sexton, Hazel Sexton Cook, Shirley L. Sexton and Pansy Sexton Bailey; that the administratrix had filed her inventory and appraisement of the personalty of the estate, but had "wholly failed and refused to inventory as assets of the estate of R. E. Sexton, deceased, any of the above decribed personal property;" that immediately upon the death of R. E. Sexton, on November 23, 1917, Shirley L. Sexton took into his possession and control all of the personalty in question and has ever since wrongfully retained and kept it; that "since the death of said R. E. Sexton, deceased, the said Shirley L. Sexton has operated the store in his own name, has converted the proceeds derived from the sale of the goods, wares and merchandise to his own use, has converted the $ 1036 in cash in the Bank of Malden, Missouri, to his own use; and has collected some of the notes and accounts due and owing to said R. E. Sexton, deceased, at the time of his death, and converted the same to his own use;" that the property described belongs to R. E. Sexton's estate and should be inventoried as assets thereof, together with income and profits therefrom, "allowing all reasonable compensation to the said Shirley L. Sexton for the management and control of said store." The prayer is for a citation which shall command Shirley L. Sexton to turn the property in question over to the administratrix and produce his accounts showing income and profits and the like, and requiring him to answer annexed interrogatories, and a further prayer that all the property described be ordered into the hands of the administratrix for distribution among the heirs in accordance with law. This was sworn to. A citation issued.
In due time defendant filed an "answer to petition and citation" in which he denied that R. E. Sexton at the time of his death was seized or possessed of any of the personalty described in the affidavit, and averred that R. E. Sexton had, prior to his death, "sold, assigned and transferred" all the property in question to him, the respondent. This was accompanied by answers to the interrogatories submitted. The answer is sworn to and gives the details of respondent's claim, and sets out a writing, signed by R. E. Sexton, upon which respondent's claim is in large part founded. It also contains denials of the charge that respondent had wrongfully taken and wrongfully withholds the property. The interrogatories carefully avoided any question calling for information concerning the transaction under which respondent claims.
On the trial in the circuit court it was admitted that the cause had been duly revived in the name of the administratrix of W. F Sexton. The interrogatories and answers thereto were offered, and several witnesses were called. There was evidence that respondent had worked in his father's store about eight years, and that for about a year before the father died he had conducted the business. He received a salary, the amount of which is not stated. About November 1, 1917, R. E. Sexton approached Henry Anderson with a proposition to sell him his stock of goods. He said he desired to go into the cotton-buying business. After some negotiations...
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