*1 HIGGINS, CC., testate, concur. having A. Reed died Bertha WELBORN J. surviving spouse Reed had a Having against election to take the will. PER, CURIAM. against en- elected to take the will she was HOUSER, C., opinion by foregoing V.A.M.S., titled, by 474.160, RSMo § adopted opinion as the the court. exempt support, property, year’s one one estate, subject payment third of the (J. claims de- having A. Reed left lineal HOLMAN, J., P. HENLEY scendants), homestead, all as allowed SEILER, JJ., KIMBERLIN, Special court, unless, by ap-
the circuit as contended Judgе, concur. pellant, agreement to rescind was nudum pactum. Appellant contends ex-
ecutory, consideration, without and there-
fore unenforceable. antenuptial
If the contract agree wholly executory
been the mutual parties suffi have been
ment of would aside, consideration. cient to set it without MEDICAL WEST CORPORA- BUILDING Lohr, Mo.App., Thumm v. TION, Plaintiff-Appellant, Although the 1. 609. authorities cited c. executory, the original contract was not COMPANY, E. L. ZOERNIG parties having married and the .husband Defendant-Respondent. provided a for a having home for wife No. 51952. period months, bi the contract was still lateral, party having undis each certain Supreme Missouri, Court of сharged unperformed ad and certain duties No. 1. Division vantages thereunder. In such circum 10, 1967. April parties agreement stances the mutual Rehearing operate is sufficient an abandonment Motion for or for Transfer May 8, En Banc Denied Court and cancellation Corbin on contract. 5A, 1236,p. “If the Contracts, Vol. 540: § Opinion Modified and Remanded Cause existing agreement subject that is the May 8, 1967. contract, still a each rescission is bilateral parties rights has one or more under given up, the contract to as one as well
or more duties under it from which to be
discharged. In such a case a mutual assent operative
to a rescission is at to dis once
charge parties.” both
Appellant’s point fourth is that the court allowing
erred in Reed Mrs. reimbursement bill,
of the funeral for the that “the reason
antenuptial contract that she had showed any
waived claim to the of the de- estate point, depends upon This
ceased.” antenuptial
the continued existence of the
contract an agreement in full force and
effect, with the contract. falls is affirmed. *2 Montrey Caruthers, Symington,
Guilfoil, M. Caruthers, H. Gerald Petzall, Rexford & Louis, for Crotzer, Jr., Smith, E. St. Darold appellant. Du- Maier, Judge, Charles R. C.
William Kilker, Sheppard, bail, Arnot L. Judge & Louis, for Sheppard, Gentry, Bryant & St. respondent.
WELBORN, Commissioner. Build- an action Medical West This is owner, damages for Corporation, ing breach of lease App., Com-
pany, tenant. A jury returned a verdict disagreed policy new and declined plaintiff $17,220 favor of dam- to circulate the notice of it tenants. ages, $3,616.20 plus Upon interest. motiоn 25, 1958, meeting, On March called defendant, the trial court set aside Rudman, was held. attendance *3 the and entered for de- tenants, about fifteen who were also stock- fendant. Plaintiff appealed. has West, Rudman, holders of Medical Mr. and Corporation Building Selig Oxenhandler, was a West real broker
Medical estate building located in of an office participated negotiations the owner who had in the County. Zoernig & leading Com- purchase. St. Louis stock to Rudman’s Oxen- handler, stockholder, in the Medi- pany although a suite of offices a leased not had years, five Building vice-president cal for a term of been Medical West elected 28, 1962, February at 1957to attorney from March West. An for Medical West Security per attorney The an rental of month. for some of the tenants were $400 Corporation, present. in which Discount also Loan & financial inter- Zoernig Company the had a Rudman, According to the tenants Zoernig was est of which Richard J. protests voiced numerous about officer, ten-year con- the executive had a management premises, the including in- manage the tract with the owner to build- adequate cleaning, lack of to com- attention ing. plaints charges. Ac- varying rental Rudman, cording parking the issue was February, Rudman and In O. S. way merely by explanation discussed acquired the Zoernig Ann Rudman the the corporation’s stockholders of finan- Corpo- majority stock of the Medical West problems. cial Oxenhandler stated that transaction, part the ration. As a of the complaints various of the tenants were agreed cause Medical West Rudmans aired, parking only that but was discussed employ Zoernig building Richard man- J. complaining insofar as the tenants were ager. agreement to the Zoer- referred that employees of occupying tenants were nig provided: Company lease and then space. an of parking excessive amount time the term the any during “If at Testifying as a for defend- witness present lease the renewal thereof as ant, attorney representing the stock- aforesaid, employment of Richard J. the parking holders that stated issue was Building Manager is terminated Zoernig meeting. matter discussed at the corporation, then the lessee shall him, explained According to Rudman remaining right to term have the cancel the corporation’s position and financial provided pеnalty lease without no- said necessity charging parking. A given tice within of such cancellation is they spokesman replied the tenants days ninety following the effective (90) parking free under their entitled to employment.” date termination of such it, upon re- leases intended to insist Zoernig and Richard en- West gardless “supposed bad condition management agreement for a into tered corporation.” The wit- finances term, February one-year beginning at the ness settlеd nothing stated that of renewal. meeting. March, the new owners decided day, next Rudman and Oxenhandler policy regarding parking alter fa- him of the met with and told provided for tenants and pa- cilities their been complaints against him which eventually customers. This action tients or Rud- According to meeting. voiced at the produced litigation reported Bryan man, upset, v.. resentful Building Corporation, Medical West Mo. ef- for his appreciation tenants’ lack of forts said hе did not wish to have by Zoernig’s turned over to Oxenhandler anything secretary. more to do Rudman with them. quoted Zoernig saying can] “[You 27, 1958, pre- On March Oxenhandler management.” Oxenhandler testified signature type- sented to for his ten- disgusted with West, written letter addressed to Medical ants’ attitude and care whether or “didn’t “I, stating: Zoernig, wish to J. thing continued to take care of my responsibility relieved as build- anything or do or have do with most ing manager of the Building Medical West * * * he that those
them because fеlt effective as of March 1958.” Zoernig complained the he did most were those sign refused to the document. the most for.” stated Oxenhandler also concluded, meeting that before the March asked Oxenhandler Charles *4 keys secretary his to turn instructed attorney Zoernig Com- Judge, an for the to over Oxenhandler that afternoon. pany original and one of the stockholders “Why of Medical West: doesn’t Richard meeting was Zoernig’s version of up Zoernig give management him, Aсcording to different. somewhat you give building?” Judge replied: “If begun to take previously had Oxenhandler time, patience, he him a little a little have building management of the a hand in the may will- come to that conclusion nothing done after Oxen- Zoernig had step down the basis ing to on management began to take handler over Zoernig moving building.” out Ox- Rud- Zoernig testified when duties. enhandler, Judge, replied: “I according to office, to his man and Oxenhandler came something can be workеd believe like that made very first statement that was “the out.” they my they came into office when around, they surprised that I was still Oxenhandler, April vice- as On I either been shot thought would West, Rich- president of advised made The next chased out. statement receipt the rec- Zoernig of the ard L. parking pertaining parking, putting to keys. he stated: the letter ords park- represented had free charges when I your part on construed “This action very ing much dis- to all the tenants. I was voluntary relin- company your this to be remark was at that time. The next turbed your building man- quishing of duties of thought that by Mr. Rudman that he made your Manage- ager and therefore terminates had manager perhaps my usefulness April ment 1958.” Contract as of ** * reit- just I disappeared. Then 15, 1958, Richard April behalf On saying I had ever since erated what been to Zoernig, Judge a letter Oxen- addressed sold, had that a mistake building been he handler in which stated: by putting parking charg- being made represented the tenаnts it to es when I April letter to Richard “Your Zoernig parking free included it would all be me for been over to 1958 has turned why I and I didn’t should their rent know act of assumption Your his attention. the new something be blamed records, other delivering you keys and to Zoernig denied wanted do.” owners relinquishment of constituted a his items quit manager. stated he wanted to wholly un- Building Manager is duties as solely be- immediately things after He did Rudman stated that warranted. these Director meeting you Oxen- with he asked as Vice President cause management Corporation him to do so. requested handler to take over the keys Management Con- building. got It Oxenhandler is our that his and he secretary that afternoon tract full and effect is still force willing perform his April 1 rent notices. and later sent out the stands continue Subsequently, management files were thereunder. duties the re- cancel Corporation hereby exercise its “If it is the desire penalty. Manage- maining term of said lease without negotiate a termination of this shortly to the date this glad I discuss You will be advised ment Contract will be you.” of removal.” with matter Schiller, 24, 1958, April Gideon On 30, 1958, Company July & Lake, Ackerman, firm of Schiller & law premises. On entered a lease for other into West, acting on behalf Medical wrote 31, 1958, Judge, on behalf of Judge as follows: Company, ref- & wrote Rudman: “With you erence to our letter to of June acknowledge your will “This letter exercising right to cancel the remain- April 1958 to Z. Oxenhandler con- S. Med- term of Suite 203 of ing of our lease matter. I cerning please Building, be advised ical West have discussed this matter with Oxen- on or before we will vacate said suite handler and I can conclude from the September 1958.” relinquished facts at hand that Building Manager his duties as of his own letter, Following the transmittal of ample although accord in fact there were telephone conversation Judge had a grounds discharging him. attorney. Schiller, Medical West’s Gideon really Zoernig Company Schiller asked if you matter сare to discuss the “Should *5 “Yes, replied: is Judge wanted to move. your con- please give me a call at with me Schiller any objection to this?” there venience.” know, going to be “I but I’m stated: don’t 1958, attorney Judge, for On as end with Mr. Rudman over the week June Zoernig Company, & addressed a letter promptly.” you let if there is I will know Mr. Rudman as President of Medical West Corporation. a letter Building August Judge In this letter received Ackerman, stated: August 5 from Schiller dated Ackerman, Lake, signed by Paxton & H. agreement “Under the terms of en- July stated, Judge’s which in reference to February 3, by tered into on and be- 31st letter: Zoernig, tween Richard Emil L. J. Judge, R. parties and Charles first and O. Building Corporation has “Medical West Rudman, par- S. Rudman and Ann second your client no control over desires of ties, pertaining controlling to the sale of suite; however, client our to vacate their of Building Corpo- stock Medical West expect up to their obli- shall them to live ration, provided emplоy- it was that if the gations, payment of rent particularly for ment building of Richard as J. lease, under the terms of their inasmuch manager Building of Medical West that E. L. position of our client is terminated, the lessee Suite 203 shall Inc., Lessee, Co., legal has no & remaining have the to cancel the for cancellation of their lease. basis penalty upon term of its lease without no- ninety days tice given (90) within follow- client part “That silence on the of our ing the date effective of termination. or ac- not be construed as an admission your quiescence respects in the instant Building Corpora- “Since Medical West matter, prior correspondence in position taken the tion has that the em- ployment merely writing we are this letter on behalf of Richard build- Zoernig as J. Corporation Building terminated, of Medical ing manager please is be noti- West Co., Inc., agreement client not in fied that E. L. advise is & lessee position expressed by you your in Building of Suite 203 of with the Medical West un- correspondence February 1, der to them.” lease dated does Company did vacate the the setting Medi- aside of the be- verdict cal West suite. Medical was unable West comes no moment. We therefore con- quarters to lease during estoppel remainder question sider the first. term the Zoernig lease and there- Estoppel after brought this suit to be rental due factual matter during amounting particular the balance detеrmined on the of the term facts $17,220 Kelly, Corp. Finance Mo. with interest in case. Service the amount v. $3,616.20. 147; App., S.W. Cannon Cir., Indemnity Company, Travelers 8th its Defendant’s answer stated 314 F.2d cases cited numerous employment had been termi- Zoernig’s by parties appeal fac on this involved plaintiff defendant nated and that tual circumstances different from those given it the right exercised of cancellation helpful They primarily setting here. are in alleged also such event. The answer out general principles estoppel, July notice vacation of apply we here. must plaintiff, premises given had been that, from 1958 until after definition comprehensive “The most June 1958, plaintiff advise the de- had failed to pais is equitable estoppel estoppel or opposition fendant of to cancellation its party pirnciple which a it is plaintiff therefore the lease and know the truth who or knows should validly estopped deny that the lease was at absolutely precluded, law both cancelled. the con- asserting denying, or equity, of, which, his trary fact any material services issue of negative, conduct, or affirmative words building manager was submitted to negli- through culpable intentionally or jury. called Plaintiff’s instruction another, who gence, he has induced jury favor if the believed that its the true facts excusably ignorant of *6 position. Zoernig voluntarily terminated his right rely upon words who such had a to a Defendant’s instruction called for conduct, upon them and act to believe jury plain- in if the that its behalf believed be reasonably to thereby, consequence aas Zoernig’s employment. tiff terminated position in such anticipated, his changing jury these instructions the returned ver- a if such way injury a that he would suffer plaintiff. dict in favor of the allowed. contrary assertion was denial or however, equitable- analysis, an final the the Thereafter the court considered issue upon circum- estoppel rests the facts and estoppel separate equitable and of a issue it particular the case which of in stances the of concluded that because of failure the of urged, considered in the framework plaintiff respond 1958 the the to to June elements, equi- grounds of requisites, and plaintiff notice of was es- cancellation any at- estoppel, consequently, table and topped the act of deny validity to the of temptеd usually no- to definition amounts cancellation. The trial court also set aside estoppel an more than declaration of the that there grounds the verdict on 28. under those and facts circumstances.” question the of was no submissible issue on Waiver, pp. Estoppel Am.Jur.2d, and § Zoernig’s leaving his the voluntariness of rel. ex ex 627-628. See State inf. Shartel the position, concluding the leav- court Co., City of Sikeston v. Missouri Utilities actively obviously by ing consent 331 607. Mo. 53 89 A.L.R. S.W.2d by Mr. and Mr. participated in Rudman voluntary quit- Oxenhandler and was not case, the In this conduct relied appeal This ting. followed. upon the the to establish defense was trial Appellant plaintiff respond if the court of concedes failure to the to June estoppel, the of 4th properly upheld defense until after de- notice cancellation
293 previously position. iterate its stated under a new obligated fendant had itself possession Medical West was in of no replacе premises lease of to those leased knowledge known the may give not to lessee. Both plaintiff. from That silence parties were aware of what had occurred estoppel recognized. rise to an is well previously expressed both their City State rel. had ex McKittrick ex inf. divergent upon Co., the to be 339 views conclusion California Missouri Utilities deduced from Mo. A.L.R. the lessee occurrences. [9], upon chose However, to act properly its conclusion silence may Medical West had upon only relied terminated the services party when the to be es- topped Zoernig. That in up conclusion was no duty speak is under a and not to encouraged West, manner ‘standing by’ remain Medical “For a to be silent. had, fact, which po- taken estoppel, come the known predicate equitable sition voluntarily it had remaining sur- necessary person that the position. rendered his duty Having silent chosen to spеak. be under a In other upon act words, speak conclusion favorable its he must common when position, the impose lessee honesty any could not dealing and fair that he do demand duty upon the lessor City an announcement so.” State inf. ex rel. ex McKittrick act Co., upon intention to its California v. Missouri Utilities conclusion. supra, 96 [10], S.W.2d Furthermore, there is no evidence aware, upon obviously
As defendant reliance case of action lessee gave which right reoly situation it the failure to West’s June ultimately cancel plaintiff’s its lease was the termina- 4th defendant did letter. The tion of give premises build- services as notice of vacation ing did, space manager. Although points defendant enter a lease into However, (cid:127)out correspondence plaintiff’s that the from elsewhere. insofar attorney, plaintiff’s officer expounding shows, taken record here that action was position voluntarily quit position upоn had reliance the defendant’s lease, the management job and not had been dis- that it to terminate charged, any addressed to Richard Zoer- had taken without nig and Judge plaintiff. Charles encouragement de- fendant-lessee, defendant made no effort to show knowledge lack actual brief, here, in its defendant
n conflictingpositions parties acknowledges absence direct evidence an *7 management In contract. view Richard of upon plaintiff’s failure to reliance Zoernig’s position as an executive officer respond 4th communication. June defendant, plaintiff’s its knowledge of defendant, According absence of previously expressed position hardly could exclu testimony (1) such is “due have been denied defendant. Without testimony by sion over Richard question, Judge, Mr. the cancel- who wrote plaintiff’s Zoer- objection that E. L. notice, plaintiff’s lation was aware of the nig, managing officer of defendant who position. April The 24th letter was ad- lease, negotiated competent new was its fact, Judge. dressed to In testified he * * * testify and (2) the feeble con preparation at the time the cancel- prevented dition of E. L. notice, plaintiff’s lation he was aware testifying.” him from The shows record respect management that that his testified contract. father, Zoernig, new negotiated that, as
lease. Richard testified agree defendant, cannot We thesе cir stockholder and officer of placed space why cumstances the 4th letter knew the lease for the new June However, any obligation under not West to re- executed until when 294
plaintiff’s justify setting mitted would not aside objected counsel witness’s stating delay, the reason for the defend- verdict. ant’s question counsel withdrew his theory The unsubmitted Zoer- nothing appears, by way proof of offer nig’s quitting voluntary was not but was or otherwise, might as to what the witness plaintiff’s the result action. See Buss testify testified. Richard did Commission, Mfg. mann v.Co. Industrial very his father was and that he feeble Mo.App., 456, 460 335 S.W.2d [6-11]. approve
would appear- not of his father’s Defendant offered an instruction on this However, ance as a witness. that fact theory, rejected by but it the trial dispense would necessity not with the- However, granted court. trial court proof of an essential element of the de- no relief on the of its refusal of the basis upon. fense relied upon The burden was only question instruction before and the prove defendant to the essential ele- supported us whether or not the evidence ments estoppel. Emery of the defense of the verdict on the theories submitted. v. Company, Mo.Sup., Brown Shoe S.W.2d [4]; Ma- Midwestern The is reversed and the cause chinery Parsons, Company Mo.App., v. remanded with to the trial court directions 228 [6-10]. upon respondent’s to consider and act mo- delay in the mere fact of opinion, In our tion for new triаl. lease does not es- entering into the new delay of reliance. tablish the element CC, HIGGINS, concur. HOUSER many fac- might occasioned have been tors, to the silence wholly unrelated PER CURIAM: plaintiff. some evidence on Absent WELBORN, opinion by foregoing that the mere subject, cannot conclude we C., adopted opinion Court. that the action delay fact of established upon in reliance ultimately taken was Wurdack, Hogue
plaintiff’s v. silence. HENLEY, J., HOLMAN, J., and P. [12-14], Mo.App., 298 S.W.2d cоncur. SEILER, J., concurs result. opinion, In the defendant’s its defense evidence did establish Therefore,
estoppel. must determine we REHEARING ON FOR OR MOTION properly set not the trial court whether or A ALTERNATIVE FOR IN THE verdict, necessarily based jury’s aside the EN THE COURT TRANSFER TO Richard Zoer- upon finding BANC management nig voluntarily terminated his matter, evi reviewing the contract. PER CURIAM. light in the most viewed dence must be rehearing, Respondent, by its motion Rhyne Thomp the verdict. favorable to *8 not have di- urges that court should [1]; this 553, 556 son, Mo.Sup., 284 S.W.2d judgment in entry favor rеcted the Error, [1], Appeal and 934 Mo.Digest, Re- jury’s verdict. appellant on the viewed, the no can be doubt 989. So there for points its motion spondent out support the there was evidence trial court sustained judgment the which Rudman testimony of verdict. for coupled an alternative motion with finding the justify and Oxenhandler would requirement of Despite the a new trial. the That evidence jury which the made. V.A.M.R., trial court 72.02, Civil Rule contrary verdict supported a might have motion the alternаtive ruling on made no a verdict supported might or that it have trial. a new theory sub defendant on favorable to
295 Respondent although the suggests rehearing. motion for In the interest of ruling justice, modify the motion in trial court made no on we will this case trial, clearly original direction and trial for new considered reverse the against weight judgment the evi- verdict was court’s and remand the cause trial a new trial dence and that we should order directions to the court to cоn- reject suggestion. upon respondent’s basis. We sider and act motion for such respondent Having in found favor of new trial. issue, estoppel
on the the trial court was required expunge jury
obviously judgment enter favor-
verdict order to speculate respondent.
able will not We might done
on what the trial court trial, as new
he considered motion for required
he was to do. STATE of Missouri at relation of Respondent alternatively suggests FOSTER, Appellant, Glen we should remand with directions to trial court to consider the motion for new v.
trial. action was taken when a similar This PRICE, Brooks, Paul and Oscar Herbert ex situation confronted this court State Judges Johnson, County Court Reynolds Davis, County, Missouri, County Hickory rel. and M. to Use of and L. Hackworth, County Clerk of Court 897-898 S.W.2d [6-10]. Reynolds County, Mo., Respondents. action Davis was taken with No. 52061. reluctance, some noting court its dis Supreme Missouri, Court of approval practice treating piece Division 2.No. meal with alternative motions. Davis was 8,May decided 510.290, under RSMo § did not contain requirement of Civil
Rule 72.02: “If the trial court sustains judgment
motion for with a accordance
directed joined with a motion for
new alternative, trial in the trial court
shall make and enter ruling of record a
on the alternative motion for new trial if ruling effective on the motion judgment is reversed.” This added
provision obviously intended to avoid presented
the situation in Davis. See
Federal 50(c). Litigants Rule who elect to advantage
take privilege of com
bining a motion for with an al
ternative motion for a new trial have an act,
obligation to see that the trial court 72.02,
in accordance with Rule at the risk being held to have waived their motion
for new trial. Vera Cruz See v. Chesa
peake Railroad, Cir., F.2d Ohio 7th [5],
Appellant objection has offered no respondent’s suggestion advanced