Opinion
No. 28133.
April 17, 1951.
APPEAL FROM THE CIRCUIT COURT, CAPE GIRARDEAU COUNTY, R. B. OLIVER III, J.
J. Grant Frye, Cape Girardeau, for appellant.
Strom Spradling and A. M. Spradling, Jr., Cape Girardeau, for respondent.
This is an appeal from an order of the circuit court dismissing a petition for failure to state a claim upon which relief can be granted.
The facts alleged in the first twelve paragraphs of the petition were set forth fully in haec verba in the opinion of this court in Schoen v. Wagner, Mo.App., 231 S.W.2d 269. We refer to that opinion, deeming it is unnecessary to restate the facts here.
On that appeal we held that the probate court was without jurisdiction to enforce the agreement therein set forth, and asserted that any right which Frieda A. Schoen, guardian and curatrix, might have under the agreement would be in the circuit court. The petition now here for review, filed in the circuit court, is framed in two counts, the first of which, following the twelve paragraphs aforesaid, alleges that the executors refused to be bound by the agreement and submitted their final settlement in the estate; that Ella Lange repudiated the agreement, refused to pay the executors the amounts called for therein, refused to account to the guardian and curatrix for the amounts which she consented and agreed should be paid to the ward; received such moneys from the executors and received and kept the insurance money; that Ella Lange received $1,759.89 for said ward and failed and refused to account therefor and "is now indebted to him in such sum," concluding with a prayer therefor.
Count II realleges the same facts and is based on the theory of money had and received.
We have concluded that the petition states a claim upon which relief can be granted, both under Count I on the theory that the contract between Ella M. Lange and Mrs. Flora Schoen Krueger, dated August 27, 1948, is enforceable as a third party beneficiary contract, and under Count II, for money had and received.
The contract contains all of the necessary elements. The parties had a right to enter into this contract to redistribute the estate according to their own desires, and contrary to the disposition made by the testator. Schoen v. Wagner, supra. The claimant is not an incidental beneficiary, but is a done beneficiary, and the agreement on its face shows that the sole object of the parties in entering into the contract was to benefit Theodore A. Schoen. There is no question of designation. He is specifically named. The contract as alleged is valid; it is for a sufficient consideration, namely, the mutual promises of the contracting parties, and in addition, it is alleged that it was entered into in order to avoid the filing of a suit by appellant to contest the will of E. R. Schoen, deceased, and the taking of other legal proceedings then contemplated. There is no question of uncertainty or statute of frauds, for the written instrument is set forth in full. The promises of respondent are unconditional. It was accepted as we shall see, infra. There is nothing in the petition to show that there was any modification, termination or rescission, and the breach of the promise is definitely alleged.
We are unable to agree with the contention of respondent that this contract is only a preliminary agreement, not fully executed. If in making this contention respondent claims that the contract is not enforceable because W. H. Wagner, mentioned therein did not sign it, it must be ruled that Wagner's consent and acquiescence was not a contingency upon the basis of which the contract was to become effective, either by the provisions of the contract or by necessary construction. His refusal to sign or recognize the agreement does not detract from the binding obligation of those who signed it or relieve either of them from their obligations thereunder, any more than the failure or refusal of a trustee named in a deed of trust to serve in such capacity would nullify the obligations of the contracting parties. It is obvious that the designation of W. H. Wagner to receive and distribute the proceeds of the insurance policy and the residue of the estate is simply the use of a conduit to facilitate and carry out the obvious intention of the parties, which is to equalize the participation of the contracting parties and the beneficiary of the contract in the property left on this earth by E. R. Schoen, deceased.
Respondent contends that under the terms of the contract it was necessary for the ward to give up the $25 bequeathed to him in his father's will; that he was thereby required to perform, to do something, to take some affirmative action, namely, to pay that sum to the contracting parties, or to make tender thereof, and that the petition contains no averment of such performance. After providing that Wagner shall distribute the sum in equal parts to the three there follows a provision "that the $25.00 payment mentioned in paragraph five of said will shall not be paid to the said Theodore A. Schoen or to his guardian." This imposes no duty upon Theodore, as claimed by respondent. If it imposes a duty on anyone it is a duty imposed on Wagner, or whosoever might be in charge of the making of final distribution to the parties, to disregard the $25 bequest in the will, but it requires no act, payment, tender, or affirmative waiver on the part of the ward. It merely is a further means of effecting the expressed intention of the parties to arrive at true equality in the division of the property left by E. R. Schoen, like Gaul, into three parts.
Respondent asserts, however, that appellant had no authority to bind her ward to the agreement without first securing the approval of the probate court, a fact which is not averred in the petition. Respondent having promised to assign and transfer property for the benefit of the ward, is in no position to challenge the authority of the guardian of the ward to accept the benefit. It was not necessary for the petition to allege that the guardian and curatrix had applied to and procured from the probate court an order approving her acceptance thereof. The propriety or legality of the conduct by the guardian of the ward's affairs is a matter of no concern to this respondent. She cannot impair the rights of Theodore or escape her liability by raising the question of the legal ability or capacity of the third party beneficiary or of his guardian to receive for him the benefits she has promised him. If the facts alleged in the petition are true, and we must accept them as true on this review, there is an element of estoppel involved. "* * * if, in making a contract, the parties agree on or assume the existence of a particular fact as the basis of their negotiations, they are estopped to deny the fact so long as the contract stands, * * *." 31 C.J.S., Estoppel, § 55b, p. 232; Bentrup v. Johnson, 223 Mo.App. 299, 14 S.W.2d 537.
In this case it is apparent that the parties entered into the contract in full recognition of the right of Theodore Schoen to receive these proceeds. The contract having been accepted, respondent cannot now be heard in her contention that the guardian could not bind her ward to the agreement. McFarland v. McFarland, 278 Mo. 1, 211 S.W. 23.
Finally, respondent claims that even if the agreement is a third party beneficiary contract, it can be rescinded, varied or abrogated as the parties see fit without the assent of the beneficiary at any time before the contract is accepted. It is to be observed that in paragraph 10 appellant alleges that the ward through her, acquiesced in, approved, and adopted the agreement by refraining to contest the will and defend against the Minnie Nothdruft note, which is sufficient "acceptance". In addition, the very filing of this lawsuit constituted an acceptance. Furthermore, there is nothing to show that there was any rescission or abrogation of the contract prior to August 24, 1949, on which day this petition was filed in the circuit court, or that the contract was "varied" as contended by respondent. On the contrary, according to the petition, the contract was breached and repudiated by respondent.
For these reasons, the judgment of the circuit court dismissing the petition should be reversed and the cause remanded to the circuit court for further proceedings according to law, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court dismissing the petition is, accordingly, reversed and the cause remanded to the circuit court for further proceedings.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.