Steinbaum v. Wallace
| Citation | 176 S.W.2d 683,237 Mo.App. 841 |
| Parties | Morris Steinbaum, Respondent, v. S. Mayner Wallace, Administrator c. t. a., d. b. n. of the Estate of C. A. Lovejoy, Deceased, Appellant |
| Decision Date | 04 January 1944 |
| Court | Court of Appeal of Missouri (US) |
Appellant's Motion for Rehearing Overruled January 21 1944. Petition for Writ of Certiorari Denied by Supreme Court March 6, 1944.
Appeal from the Circuit Court of the City of St. Louis; Hon. William K. Koerner, Judge.
Affirmed.
Everett Paul Griffin for appellant.
(1) Respondent neither pleaded nor proved that, at the time of the institution of his action in replevin, the property sought to be recovered was within the City of St. Louis; and in the absence of such pleading and proof, the court below had no jurisdiction over the subject matter. R. S. Mo. 1939, sec. 1811 (and sec. 872); Hauser v. Burge (Mo. App.), 121 S.W.2d 314, 316; National Bond & Inv. Co. v. Mound City Finance Co. (Mo. App.), 161 S.W.2d 664, 668; 7 Mo. R. S. Anno., p. 1078; 54 C. J., pp. 503-4, sec. 174; Universal Credit Co. v. Antonsen, 374 Ill. 194, 29 N.E.2d 96. (2) Respondent should, under the facts, have asserted his alleged rights by a suit in equity to cancel the contract rather than to attempt to prosecute an action in replevin. The action in replevin was not maintainable because respondent did not act promptly or decisively in disaffirmance of the contract and did not restore or offer to restore the thing he had received under that contract. Kingman-Moore Implement Co. v. Ellis, 125 Mo.App. 692, 701; 17 C. J. S., "Contracts," sec. 439, pp. 921, 923; Jones v. Norman (Mo. App.), 24 S.W.2d 191, 194; Weaver v. Lake (Mo. App.), 4 S.W.2d 834. (3) Respondents' proposal, accepted by appellant, constituted a valid contract between the parties; and there was nothing in the facts that permitted respondent's repudiation of the contract. Martin v. Ray County Coal Co., 288 Mo. 241, 255; Aden v. Dalton, 341 Mo.App. 454, 107 S.W.2d 1070, 1074; Spitcaufsky v. State Highway Commission, 349 Mo. 117, 159 S.W.2d 647, 656; Little Rock Surgical Co. v. Bowers (Mo. App.), 42 S.W.2d 367, 369; Springfield v. Morgan (Mo. App.), 168 S.W.2d 971, 975; Great Eastern Oil Co. v. DeMert & Dougherty (Mo.), 166 S.W.2d 490, 493; National Surety Co. v. Equitable Surety Co. (Mo. App.), 242 S.W. 109; Daggett v. Kansas City Steel Co., 334 Mo. 207, 65 S.W.2d 1036; Hunt v. Jeffries (Mo. App.), 156 S.W.2d 23.
Joseph Boxerman and Wm. H. Allen for respondent.
(I) The contention that the circuit court was without jurisdiction is wholly without merit. (1) This suit was instituted in the circuit court, a court of general jurisdiction proceeding according to the course of common law. In the absence of anything appearing in the record to the contrary, it will be presumed that the court rightfully exercised jurisdiction in the case. Gates v. Tusten, 89 Mo. 13; Schad v. Sharp, 95 Mo. 573, 575, 576; State v. Baty, 166 Mo. 566; State v. Baker, 246 Mo. 357, 372, 152 S.W. 46; Davidson v. Schmidt, 256 Mo. 18, 19, 164 S.W. 577; Kemper v. Gluck, 327 Mo. 733, 742; Ussery v. Haynes, 344 Mo. 530, 541; Hadley v. Bernero, 103 Mo.App. 549, 556, 557; Gill v. Sovereign Camp Woodmen of the World, 209 Mo.App. 63, 71; Hall v. Thurman (Mo. App.), 86 S.W.2d 1069, 1070. (2) And without the aid of any presumption, the admissions of defendant's counsel that, at the time of the institution of the suit, the cashier's check was in the possession of the defendant administrator, whose offices were in the Boatmen's Bank Building in the City of St. Louis and who was administering upon the estate in the probate court of said city, together with the admission that defendant, upon the institution of the suit, gave a forthcoming bond and endorsed the check and deposited it with the surety as security, sufficed to show that the property replevied was in defendant's possession in said city at the time of the institution of the suit. Hadley v. Bernero, 103 Mo.App. 549, 558. (3) And having given the forthcoming bond, and having by virtue thereof retained the property, defendant is estopped from claiming that the property was not found in his possession in the City of St. Louis by the sheriff of said city. Hundley v. Filbert, 73 Mo. 34; Exchange Finance Co. v. Brown, 222 Mo.App. 1113, 1115; Carpenter v. Stearns, 82 Mo.App. 132; Benesch v. Waggner, 12 Colo. 534, 21 P. 709; Martin v. Gilbert, 119 N.Y. 298, 23 N.E. 813; Warren v. Olsen (N. D.), 180 N.W. 529; Red River Valley Trust Co. v. Boswell, 173 Okla. 96, 44 P.2d 956. And while the check was in custodia legis, appellant, by endorsing it and delivering it over to the bonding company as collateral security, converted it to his own use. Ely v. Sutton, 177 Mo.App. 546; Mohr v. Langan, 162 Mo. 474. (4) The petition and affidavit conform precisely to the statute applicable to replevin in courts of record. Sec. 1788, R. S. Mo. 1939. It is unnecessary to plead jurisdictional facts where the suit is instituted in a court of general jurisdiction. St. Charles Savings Bank v. Thompson & Gray Quarry Co. (Mo.), 210 S.W. 868; Rubber Tire Supply Co. v. American Utilities Co. (Mo. App.), 279 S.W. 751. (II) The evidence conclusively showed that plaintiff was entitled to judgment for the return of the cashier's check, or at his election to recover the value thereof, together with the damages assessed. (1) The so-called executory contract is not a contract, but a mere nullity. The leasehold, being for a term longer than three years, could only be sold for the payment of debts or legacies and then only as real estate is sold by an administrator under an order of the probate court made upon compliance with all of the provisions of Sections 141, 142, 143 and 144, Rev. Stat. Mo. 1939. An administrator is without authority to sell or contract for the sale of such a leasehold until all of the antecedent statutory requirements been complied with and the probate court has made an order of sale upon the hearing of testimony as required by Sec. 144, R. S. 1939. Orchard v. Wright-Dalton-Bell-Anchor Store Co. et al., 225 Mo. 414. (2) The defendant administrator not having proceeded in the statutory manner provided for the sale of property of the estate of a decedent, the purported executory contract of sale was void ab initio and could not have been validated by any subsequent order of the probate court attempting to approve it. Orchard v. Wright-Dalton-Bell-Anchor Store Co. et al., 225 Mo. 414; 3 Woerner on American Law of Administration, pp. 1654, 1655, sec. 477; Sherr v. Page (Pa.), 162 A. 317. (3) And, since the so-called contract was not binding on the administrator or the estate, there was no mutuality of obligation, and hence no valid contract. If one party is not bound neither is the other. Jesse v. Rolaff (Mo. App.), 74 S.W.2d 890, 893; Reynolds v. South Side National Co. (Mo. App.), 64 S.W.2d 297; Great Eastern Oil Co. v. Demert & Dougherty (Mo. Sup.), 166 S.W.2d 490, 493. (4) Nor is there any merit in the contention that plaintiff's remedy, if any, was to sue in equity for rescission. Since no binding contract came into existence, there was nothing to rescind. Plaintiff got nothing for the check he deposited with defendant. He is entitled to regain the possession of the check or its value at his option, with damages for the detention thereof. Sherr v. Page (Pa.), 162 A. 317. (III) This appeal is frivolous and vexatious. No debatable question is involved. There was no reasonable ground for the appeal, nor could appellant have believed, in good faith, that he had any meritorious ground for appeal. The judgment should be affirmed with ten per cent added thereto as damages for vexatious appeal. Sec. 1230, R. S. Mo. 1939; Bonzon v. Metropolitan Life Ins. Co. (Mo. App.), 143 S.W.2d 336, 340; Johnson v. American Surety Co., 292 Mo. 521, 238 S.W. 500, 502; Barr & Wiseman v. Quincy, Omaha & Kansas City R. Co., 181 Mo.App. 88, 92, 93; Wallace v. Prudential Ins. Co., 174 Mo.App. 110, 122, 123; Wittenberg v. Fisher, 183 Mo.App. 347; Mooneyham v. Cella, 91 Mo.App. 260; Fiedler v. Bambrick Bros. Const. Co., 178 S.W. 763, 766; Enright v. Hale Petroleum Co., 250 S.W. 908; Boillot v. Income Guaranty Co., 124 S.W.2d 608, 612; Prudential Ins. Co. v. German Mutual Fire Ins. Co. (Mo. App.), 169 S.W.2d 500, 503, 504.
This action in replevin was brought by respondent, as plaintiff, to recover possession of a cashier's check in the sum of $ 4000 issued by the Mutual Bank & Trust Company, payable to S. Mayner Wallace, administrator c.t.a., d.b.n. of the estate of C. A. Lovejoy, deceased, hereinafter referred to as defendant. A trial before the court, a jury having been waived, resulted in a finding that plaintiff was the owner and entitled to possession of the property described in the petition and that defendant has possession thereof and wrongfully detains same from plaintiff. The court assessed the value at $ 4000 and awarded damages of $ 86.00 for the detention of the property. The court also rendered judgment in favor of plaintiff and against defendant and the United States Fidelity and Guaranty Company, the surety on the forthcoming bond, for the $ 86.00, and that defendant return the property to plaintiff, or at the election of plaintiff that plaintiff have and recover of defendant and his said surety the further sum of $ 4000, and for costs. The defendant duly appealed.
Claude A. Lovejoy, deceased, was a nonresident of Missouri. An asset of his estate was an unexpired term of a fifteen year lease of the Majestic Hotel located at the northeast corner of Eleventh and Pine Streets in the City of St. Louis, Missouri. The lease was executed by the Buddon Realty Company as lessor to C. A. Lovejoy. It was dated February 18, 1939, and...
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