Lesan Advertising Co. v. Castleman , 165 Mo. App. 575 ( 1912 )

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. [Sec. 2784, R. S. 1909. See Burrell v. Highleyman, 33 Mo. App. 183; Pratt v. Miller, 109 Mo. 78, 18 S. W. 965; 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 réceipt 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: “June 20, 1910. Trial by court, judgment for plaintiff against defendant and United States Fidelity and 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 parties thereto request it with the view of excepting to the decision pf 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 aré cited as sustaining the defendant’s contention, but after careful consideration of them we are conyinced 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 ns 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 originál 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 eases 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 attacked, but, on the contrary, is affirmed as correct and insisted upon as being eon-' elusive by the defendant, who is the áppellant here, ‘ Neither are those decisions in point which hold that on appeal in equity cases the appellant must bring" up all the evidence in order to have the appellate court review the trial court’s conclusions of law on the findings of fact. Such decisions proceed on the theory that in equity the whole case must be reviewed on appeal, the facts as well as the law, and the statute has not changed this practice. This is not an equity case, hut a law case. It seems to us that a case more nearly,- if not entirely, decisive of the question here involved is the case of Shipp v. Snyder, 121 Mo. 155, 25 S. W. 900, where on writ of error our Supreme Court reversed and remanded a judgment because it was contrary to the law, in view of the special finding of facts, although such special finding does not appear to have been requested by either party. In the course of its decision our Supreme Court said: “The court in this case, sitting as a jury, was under no obligations to make a special finding of the facts, but, as was his privilege, he did so. The facts as found by him are responsive to the issues upon which a judgment could have been rendered, and his functions as a jury then ceased (Spalding v. Mayhall, 27 Mo. 377; Cochran v. Moss, 10 Mo. 416). And it became his duty, as a court, to render judgment on the finding, or if dissatisfied with it for any valid reason to set it aside.” That decision and language seem to accord with decisions in other states, where the courts have held, under a statute like ours, that the trial court may make a special finding of its own motion, with the same effect as if it had been done at the request of one of the parties. [Jennings v. Jennings, 56 Iowa, 288, 290; Farwell Co. v. Lykins, 59 Kan. 96, 99; Harner v. Batdorf, 35 Ohio St. 113, 117.] In the last cited case the Supreme Court of Ohio said: “It is true that section 280 of the civil code does not require the court, where it tries a question of fact, to state its finding especially unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the case. Its language is, that it shall not be necessary for the court to state its finding, except generally, unless such request is made. The object of this provision is to give a party a right to require a special finding, by requesting it with the view of excepting to the judgment. But where the court, without such request, finds and states the facts separately from its conclusions of law, an exception to the judgment rendered upon such finding is as available to the excepting party as if the finding were made at his instance or request. ’ ’ It has also been held that even if the request was necessary it need not have been entered of record, and in the absence of a showing to the contrary, will be presumed to have been made. [Corner & Co. v. Gaston, 10 Iowa, 512, 513 ; McCue v. The County of Wapello, 56 Iowa, 698.] In the light of these authorities we hold that the findings of fact filed in this case may be dealt with as such, without it appearing of record that it was made in compliance with a request therefor.

The judgment is reversed and the cause remanded. 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. Deeming that the decision rendered by the court is contrary to the previous decision of the Kansas City Court of Appeals in Nichols v. Carter, 49 Mo. App. 401, and State ex rel. Bush v. Lusk, 93 Mo. App. 680, 67 S. W. 711, and to those of the Supreme Court in Blount v. Spratt, 113 Mo. 48, 20 S. W. 967; Hamilton v. Armstrong, 120 Mo. 597, 25 S. W. 545; Cochran v. Thomas, 131 Mo. 258, 33 S. W. 6; and Patterson v. Patterson, 200 Mo. 335, 98 S. W. 613, Judge Reynolds asks that the cause be certified and transferred to the Supreme Court and it is so ordered.