106 Kan. 118 | Kan. | 1920
The opinion of the court was delivered by
Mary A. Rawlings died November 1, 1917. She left a will undertaking to give to her husband, Williard H. Rawlings, a life interest in their homestead in Cherryvale, and providing for the division of the rest of her property, which included a quarter section of farm land, among her three children by a prior marriage — a son and two daughters— who were her only other heirs. It is not shown that the husband ever elected to take or not to take under the will, and it has never been probated. On November 9, 1917, the husband and the two daughters of the deceased signed a letter
1. The plaintiffs contend that the execution of the contract for the division of the property must be regarded as admitted because the denial thereof was not properly verified, under the rule stated in Kimble v. Bunny, 61 Kan. 665, 60 Pac. 746, and Smith v. Bowersock, 95 Kan. 96, 147 Pac. 1118. There the verifier merely swore that the facts stated in the general denial were true, and this was held insufficient. Here an affidavit of the defendant’s attorney was attached to the answer, stating that he believfed its allegations to be true. If the pleading had contained only a general denial, this verification might perhaps have been insufficient, under the cases cited, to put in issue the signing of the letter by Ritchie as an effective execution of the contract it contained. But it also included a specific averment that the document had not been signed by all of the parties during the life of Williard Rawlings, and this statement, being sworn to, operated as an effective specific denial. Moreover, in the two cases referred to, the effect of holding the verification invalid was to affirm the judgment of
The plaintiffs assert that the form, of the specific denial referred to is that of the “negative pregnant.” It is true that the denial that the letter had been signed by all the parties during the life of Williard Rawlings is (in the idiom of the common-law pleader) pregnant with an admission that some of them had signed it before his death, and that all of them had finally signed it. But that is precisely what the defendants assert — that all but Ritchie signed the letter while Williard Rawlings was still alive, and that Ritchie added his signature, but not until after the death of Williard Rawlings.
2. The letter sent to Ritchie was a proposal, and required an acceptance before it could become a contract. The proposal was for an agreement in the nature of a voluntary partition. It contemplated a division of real and personal property among those entitled thereto, in a different proportion from that to which they were entitled as a matter of legal right. Until a contract of that character became binding upon all the parties, it would bind none of them. (92 Am. Dec. 127; 30 Cyc. 165.) Save in certain exceptional classes of cases to which that now under consideration does not belong, the acceptance of a proposal in order to have any effect must be communicated to the proposer, “or put in the proper way to be communicated” (Mactier v. Frith, 6 Wendell, 103) to him by an act, such as a deposit in the mails, which puts it for practical purposes beyond the control of the acceptor. (13 C. J. 284, 300; 6 R. C. L. 606, 607.) And if either party dies before such actual or constructive communication, the offer lapses and no contract results. (13 C. J. 298.)
When the letter here involved was produced in court it bore the signature of Ritchie, but no evidence was given as to when it was placed there. He himself did not testify. So far as the evidence shows, he may have signed the letter after he learned of the death of Williard Rawlings, which was after he arrived
Evidence was given that he had told one witness that “he got a letter from the folks about his mother’s estate and he came back to settle it up”; that “he never said anything to witness about any agreement.” Another witness, the husband of one of the plaintiffs, testified that Ritchie told him that “he had come back to settle the matter up”; that “he could talk back and forth and get through quicker than by writing, send deeds back and forth.” If Ritchie had made up his mind on the receipt of the letter to acquiesce in its terms, and make it immediately effective as a contract, that result could have been accomplished with no delay whatever by his signing it and giving notice that he had done so, by remailing it or otherwise. If he was satisfied to accept the proposed settlement of the property rights of the parties concerned, he could not by returning to Kansas shorten the period within which it could be made binding upon them. His personal presence here could save time in reaching a binding contract for the division of the property only in case some of the terms remained to be discussed and agreed upon — and that would seem to be the only contingency in which there would be occasion to “talk back and forth.” If necessary to support the judgment, the trial court may be deemed to have made a finding to this effect, for the evidence and the permissible inferences therefrom would have justified it: Ritchie refrained from accepting the proposed adjustment because he hoped to be able to persuade Williard Rawlings to abide by the provisions of his wife’s will, and accept a life estate in the homestead in full of his claims; he came to Kansas to attempt to accomplish this result by personal solicitation; finding on his arrival that the death of Williard Rawlings had made this impossible, and preferring the division indicated in the letter to that which the law would make, he attached his signature to the letter and assumed the
3. The record seems to disclose a contention that the conduct of Williard Rawlings after the letter had been written precluded him and his privies from denying its binding force. Evidence was given that on November 7 he sold off a quantity of personal property, consisting of live stock, grain, and farm machinery — not “household effects or anything of that kind.” But it did not appear that anything was sold that belonged to his wife’s estate. He was shown to have told the tenant of the farm that his wife’s children “were trying to come to some sort of agreement for him to have the home place and the children to have the farm”; that “they had come to an agreement, but that there was one heir out west and they had sent the papers out for him to sign.” This talk was before the date of the letter to Ritchie, and appears to have been in accordance with the facts; it does not necessarily imply that a contract had been effected — it seems to point rather to the contrary. No special findings were made, and, in the absence of conclusive evidence to the contrary, the facts must be regarded as settled in favor of the defendants. We discover nothing in the proved facts to disable them from claiming a half interest in the property left by their son’s wife.
The judgment is affirmed.