source: Caselaw Access Project

author: SMALL, C. PER CURIAM:

license: Public Domain

text:
    FREDERICK MEFFERT STRIPE, A Minor, by JAMES A. SHANNON, His Guardian, v. ANNA MEFFERT, MARTIN E. LAWSON and SILVIA C. BARRICK, Appellants.
    Division One,
    April 9, 1921.
    1. TRIAL: Special Verdict: Incomplete Determination: Motion for New Trial. Where there is a special verdict, leaving some of the issues to he determined, a motion for a new trial filed within four days after their determination, is timely filed.
    2. APPEAL: Trial de Novo in Supreme Court. Where a case was treated in the trial court as an equity case with the acquiescence and consent of the ■ plaintiff, he cannot object to its being so treated on appeal, and therefore this court will not be limited to consideration of questions of law, but may try the case de novo on the facts.
    3. ILLEGAL MARRIAGE: Divorce: Adultery: Legitimacy of Children. Section 342, Revised Statutes 1909, provides that “the issue of all marriages decreed null in law or dissolved by divorce shall be legitimate.” In order that a child may be legitimate within the meaning of this statute, there must have been not only a marriage between the parents, but such a marriage as would be decreed null in law or dissolved by divorce in a proceeding in equity between them. In an action to annul a marriage in equity, for any reason, or for divorce, if both parties knowingly lived in adultery, there would be no marriage to annul and neither would be an innocent or injured party; neither would come into court with clean hands, and no relief could be granted to either. Unless the marriage is entered into by one or both of the parents honestly, innocently and in good faith it is not such a marriage as is contemplated by this section.
    4. LEGITIMATION OF CHILDREN. Secion 341, Revised Statutes 1909, provides that “if a man, having by a woman a child or children, shall afterward intermarry with her and shall recognize such child or children to be his, they shall thereby be legitimated.” This applies to cases where the relationship between the parties at the time the child was conceived was illegal and criminal as to both parents. In such case a subsequent legal marriage and recognition is necessary to legitimacy.
    5. —.-: Adultery: Guilty Knowledge of Parties. Where the evidence showed that both the parents were knowingly guilty of adultery, the child cannot be held ligitimate under Section 342 at all, and not under Section 341 unless there has been a subsequent marriage between the parents accompanied by recognition by the father.
    6. -■ — : -: Non-Access: Presumption. In cases where the question is whether the paramour or husband of the mother is the father of the child/ the non-access of the husband is required to be shown by clear and convincing proof; otherwise, the presumption is that the husband, and not the paramour, is the father.
    Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
    Reversed.

      Lathrop, Morrow, Fox é Moore and George W. Day for appellants.
    (1) The case was tried in the court below as one in equity; all parties are bound by that theory. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckmeir, 134 Mo. 380. (2) The motion for ne-w trial was filed in time. The cases which, hold that the time for filing a motion for new trial should be reckoned from the date if the return of the verdict and not from the date of the judgment are cases in which the return of the verdict marked the close of the trial. (3) The judgment here can be sustained only upon a finding that there is in the record sufficient evidence showing there was a marriage between Dr. Joseph P. Meffert and Anna Marie Stripe, which the law deems null. R. S. 1909, sec. 342. (4) Unless at least one of the parties to an alleged common-law marriage enters it in good faith, believing the other party to it competent to contract’marriage, the issue of the cohabitation of the parties is not legitimate. Green v. Green, 126 Mo. 17; Nelson v. Jones, 245 Mo. .579. (5) Both Dr. Meffert and Mrs. Stripe knew that Mrs Stripe was the lawful wife of another, when they assumed the relation testified to by her. Good faith.was, therefore, lacking in both of them; the relation was meretricious and not that of a marriage deemed null in law. (6) Every child born in wedlock is presumed to be legitimate. Proof to the contrary must show impossibility of access or of procreation by the husband. Johnson v. Johnson, 30 Mo. 72; Drake v. Hosp. Assn., 266 Mo. 1.
    Gamble, Kennard & Trusty and Marley & Reed for respondent.
    (1) This case came on in due course for trial, as a jury case, and although appellants insisted that it was an equity case not triable by a jury, and objected to a jury trial, the respondent was equally insistent that it was a jury case and insisted upon a trial to a jury. The court took the view of the respondent and tried the case as a jury case; and all action of the court after the return of the verdict by the jury was influenced and induced by the appellants and not by the respondent. Respondent desires to raise the point that as to him there is nothing but the record proper before this court for its consideration. Neither the petition nor any of the answers claim as to respondent, any equitable rights nor invokes the exercise of the powers of a chancellor. That in fact the petition and answers clearly show that the action was an action at law triable to a jury. Kline v. Greeschner, 219 S. W. 652-; Hays v. McLaughlin, 217 S: W. 263; Newbrough v. Moore, 202 S. W. 549; Hunter v. Moore, 202 S. W. 545; Koehler v. Howland, 275 Mo. 581, 205 S. W. 219; Tracey v. Copp'age, 213 S. W. 38; Dowd v. Bond, 199 S. W. 954; Bacon v. Theiss, 208 S. W. 254; Thompson v. Stillwell, 253 Mo. 89; Lee v. Conran, 213 Mo. 404; Wimpey v. Lawrence, 208 S. W. 58; Tolar v. Edwards, 249 Mo. 158; Minor v. Burton, 228 Mo. 563; Miller v. Lloyd, 204 S. W. 2:58; Brooks v. Gaffin, 192 Mo. 228; Hauser v. Murray, 256 Mo. 84; Minicum v. Solar, 183 S. W. 1037; Brook v. Boberts, 195 S W. 1021; Coulson v. Le Plant, 196 S. W. 1144; Brandt v. Brents, 177 S. W. 377; McLarty v. Griggs, 222 S. W. 391; Brooks v. Eoberts, 220 S. W. 11; St. Louis Union Trust Co. v. Hill, 223 S. W. 435; Mooneyham v. Wynatt, 222 S. W. 451. (2) Sec. 342, E. S. 1909, should be liberally construed in favor of the child. The strict requirement being only as to its paternity. Watt v. Owens, 62 Wis. 512'; Blythe v. Byers, 19 L. E. A. 40; In re Shipp, 168 Cal. 641; Brown v. Legion-of Honor, 78 N. W. 73; Morin v. Holiday, 30 Ind. App. 201. Children are unconscious of the marriage and the criminality thereof does not affect them, nor is it to be considered when passing upon their claim to legitimacy. Dyer v. Brannock, 66 Mo. 404; Brewer v. Bloucher, 14 Pet. 178; Stones v. Keeling, 5 Call. (Va.) 143; Heckert v. Hile, 90 Va. 391; Leonard v. Bras-well, 99 Ky. 528; Wright v. Lore, 12 Ohio St. 619; Harris v. Harris, 85 Ky. 49; Hartwell v.' Jackson, 7 Tex. 579. The statute should be construed to carry out its humane purpose. Turnmier v. Mayes, 121 Tenn. 45; In re Jessupp, 81 Cal. 408; Christopher v. Munger,-61 Fla. 513; Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 80; Buchanan v. Harvey, 35 Mo. 276; Nelson v. Jones, 245 Mo. 597; Evatt v. Miller,' 114 Ark. 84; Mund v. Rebanme, 51 Colo; 134; Leonard v. Brasswell, 99 Ky. 533; Hutchins v. Kimmell, 31 Mich. -132; Morris v. Williams, 39 Ohio St. 557; Watts v. Owens, 62 Wis. 512. (3) The verdict marked the end of the trial, as it settled all the issues of fact and left the court no alternative except to enter judgment for plaintiff or grant a new trial; and defendant’s failure to file such motion within four days after verdict means that the appeal brings nothing here for review except the record proper, and as to that no error is assigned. R. S. 1909, secs. 1988, 1989, 1990; Green v. Whaley, 271 Mo. 636; DeSoto v. Ins. Co., 102 Mo. App. 1; Hall v. Mullanphy, 16 Mo. App. 454; Cockrell v. McIntyre, 161 Mo. 59; Wadding-ton v. Lane, 220 Mo. 387; Young v. Downey, 150 Mo. 317; City of St. Louis v. Boyce, 129 Mo. App. 443; Brubaker v. Brubaker, 74 Kan. 220, 86 Pac. 455; Spalding v. Maykill, 27 Mo. 377; Shipp v. Snyder, 121 Mo.. 155.
   SMALL, C.

Suit to quiet title to real estate in Jackson and Clay Counties. Petition is in the conventional form, claiming that plaintiff owns the entire fee title in the property sued for. No equitable title alleged, nor equitable relief prayed for on face of petition.

The answer of defendant Anna Meffert was a general denial. The answer of defendant Lawson, besides a general denial, averred that neither plaintiff nor defendant Sylvia C. Barrick had any interest, but that said Lawson, as executor of the last will of Joseph P. Meffert, deceased, under said will, holds the entire fee-simple title for his co-defendant, Anna Meffert. Defendant Sylvia C. Barrick’s answer was to the same purport as the answer of defendant Lawson.

After the jury was sworn it appeared from the opening statement of plaintiff’s counsel that both parties claimed under said Joseph F. Meffert, as a common source of title. That plaintiff claimed he was the son of said Meffert, and was born of his marriage with Mrs. Marie Stripe, while said Mrs. Stripe was the wife of William H. Stripe, hut was, nevertheless, his legitimate child under Section 342, Revised Statutes 1909.

Defendants thereupon objected to trying the case before a jury, because they “don’t try equitable matters.” The court overruled defendants’ objection, but submitted to the jury the following special questions, which the jury answered in the affirmative, as follows:

“Question No. 1. Was there a marriage on or about September 3, 1914, between Joseph F. Meffert and Anna Marie Stripe?
“We, the jury, answer the. foregoing question, Yes.
“A. L. Williams, foreman.
“Question No. 2. Is Frederick Meffert Stripe the issue of said marriage?
“Yes.
“A. L. Williams, foreman.”

Upon the coming in of the verdict, the court made the following entry on the record:

“And now it appearing to the court that there are further issues in this cause, the said jury is discharged from any further consideration of the cause, and this cause is continued until tomorrow morning at 9:30 a. m. ”

It appears from the evidence- before the jury, that plaintiff was born October 6,1915. That his mother was about 33 years old in the early spring of 1913, when she first met Dr. Joseph F. Meffert, who was and for many years had been a practicing physician in Kansas City, and before coming to Kansas City, in Liberty, Missouri. She was then living with her husband, W. H. Stripe, a carpenter and contractor, who was doing work for Dr. Meffert, who was a man of some means and the owner of a number of houses in Kansas - City. At the time, the Strip.es had two little daughters aged respectively about four and eight years. They lived at 27th and Indiana Avenue. Dr. Meffert resided at 1622 Prospect Avenue. He was divorced from his wife in 1890, when they lived at Liberty. His former wife and their daughter and only child, Anna Meffert, lived at Liberty. The Stripes were married in New Jersey, January 1, 1903. Mrs. Stripe had been left some property when her father died. She was then sixteen years old. She never attended the public schools, but was educated at private schools, and was also a graduate of--College, one of the highest class colleges for young women in the country. Her husband, Stripe, was interested with his brothers, one of whom was her guardian, in a manufacturing establishment, and invested'and lost her inheritance in the business. They then moved west and had been in Kansas City for several years before she met Doctor Meffert. They became enamoured of each other at their first meeting in the early spring of 1913. Thereafter, he made love to her, and until she went to live with the doctor on September 3, 1914, they often met clandestinely and without her husband’s' knowledge. This happened two or three times a week. She was in love with Dr. Meffert as much as he was with her. She did not tell her husband of these meetings with the doctor, because “I knew what a disposition he had.” She also knew it was wrong, because she was married to Stripe. Over defendants’ objection that sho was incompetent to testify to her agreement with said Meffert, because he was dead and the plaintiff claimed through and under said agreement, she testified, as follows:

On September 3, 1914 she went to live at the Meffert house. “ He wanted me to be his Avife and that Ave live together as man and wife. I told him that was impossible, that I ay as already married., We simply agreed to live together as husband and wife. Q. What was the agreement? A. We simply agreed to live together. Q. I want to know what the agreement was? A. I agreed to live Avith him as his wife. He agreed to be my husband and I agreed to be his wife.” (Struck out as a conclusion). He said, 11 Avill be your husband.’ He asked me to come and live with him as his wife, and I told him I thought that Avould be impossible — that I was already married. He said as long as Mr. Stripe refused to give me a divorce, and I would live with him as his wife, Mr. Stripe could not prevent it in any way, and xve would live together as man and Avife any Avay. I didn’t see how I could live there as his xcife, Avhen I Avas not divorced. He said he Avould be true to me and love me and take care of me, all of my life. I told him the same thing. We made a voav between us, that before God Ave would be true to each other. He then put a ring on my finger, and took off the wedding ring Mr. Stripe had given'me. I was a Protestant, lie Avas a Catholic,. and I promised him, if any child Avas born of the marriage, 1 would bring it up a Catholic. He said he wanted an heir. When that promise Avas made, Ave commenced living together from that time on, September 3rd, and the baby was born October 6th the next year. I baptized it a Roman Catholic. During that time, I lived at no other place except 1622 Prospect Avenue, Dr. Meffert’s home. ’ He lived xvith me at that house all of the time. He Avas just as a husband could be, loving and kind; until his people came, there Avas no friction. lie discharged the housekeeper, and that caused a great deal of trouble. I had her come back — there Avas so much scandal — I begged the doctor to take her back, and he did. I thought she would protect us. The baby was born at 1622 Prospect. The doctor was Arery kind to the child. He slept with it, until a few weeks before he died. He would not let anybody fix its milk but himself. The Avhole house' was turned topsy-turvy to take care of that child. Before the baby came, and I was carrying the child, the doctor opened an account for me at the Parisian, that I might get things charged to myself. He introduced me there as his wife. They found out the doctor had a great deal of money and some one else had things charged there one time and he had a great deal of trouble and decided to close the account. I do not know of his buying clothing for other women while I was living with him. He ordered a maternity dress for me and they ordex*ed it specially from Nexv York. He bought the baby a baby-buggy; his mother paid something toxvards the buggy, she wanted to. From September 3rd, until the baby was born, I did not entertain or receive attention from any other man than Ur. Meffert. He told everybody about his beautiful baby. I was not there when the doctor died. T was at 36th and Agnes, me and the baby. At 1622 Prospect, he had his housekeeper and his mother. I left them on account of the friction- and. the scandal was so terrible that the doctor and I planned to go to California. Myself, the housekeeper, his mother and his brother’s wife lived there. He instructed the banks to pay my checks. I signed, ‘Mrs. J. F. Meffert. ’ He introduced me at the German American Bank as his wife. I was known at Nance’s restaurant as his wife. We went everywhere together. At the Royal Theatre he told the usher to take his wife down and weigh her. The doctor showed me a will he had drawn after the baby was born. He said Mr. Lawson said, ‘ it was a' fine and dandy will.’ I have not seen or heard of it since. I took Mr. Lawson’s word, for it, there was no other will. My house was broken into while I was at the funex^al and every paper taken out. Ur. Meffert said that he had provided in his will for his xxxother and me and the boy. We were left oxxt and didxx’t get anything. He said he fixed a piece of property for xxxe at 15th and Pr*ospect for life, axxd at my death it would go to the baby. I have two little girls by my former husband — no boy. The boy is the picture of the doctor.” (Struck out by the court). “After the baby was born, he tried to sell a piece of property at any price so he could get his wife and the baby oxxt of the country oxx account of scaxxdal axxd to protect the baby as well as he could from, the ‘ threatening xxxobs.’ The baby was six xnoxxths old, when he died. He told nuxneroxxs persons the baby was his boy. I had xxo sexual ’ relations with Stripe after Septeixxber 3rd, until the baby was born. I wexxt to Stripe’s house in March whexx the ehildrexx had diphtheria. He caxxxe to 1622 Prospect Avenue several tixxxes to give the babies (children) outixxgs. He would meet them outside axxd take thexxx hoxxxe. Uoctor would xxsually stand at the door. He didxx’t like it. Whexx my little girl was sick, lie objected to my going there alone, and took me out himself and treated the little gii;l. That was the only time I vent to Stripe’s house.” She did not tell Stripe about her voav Avith the doctor. Tried to conceal it as long as she could. Did not Avant the world to knoAV. Asked him to give her a divorce, but he refused. Wanted to get a divorce from Stripe, so she could legally marry Dr. Meffert. She lcneAV she had to have a divorce, before she could legally marry him. After' September 3, 1914, Dr. Meffert called her Mrs. Meffert to all strangers and while there was no scandal. But when people knew her as Stripe, she had to shield “ it as best I could. The •scandal was about me living Avith the doctor, as his wife, and Mr. Stripe felt so bad.” Stripe would not speak to her any more after she commenced living with the doctor; he Avas in such a frame of mind, she would not speak to him. After she commenced living Avith the doctor, Stripe fitted up one of the doctor’s houses on 27th Street, near Indiana, and moved into it and kept his office there. That Avas about.a block from-where they had lived. The two little girls stayed a great pail of the time Avith her at Doctor Meffert’s, and part of the time with Stripe or his sister. Dr. Meffert gave her numerous checks payable to “Marie Stripe, because so many people knew me as Mrs. Stripe — ■ the scandal Avas so great I wanted to shield myself and the baby as much as I could.” When the little girls Avere at Stripe’s house, they would call her, when their daddy was gone, “and I would go out to see them.” There Avere lots of checks made out to “Mrs. Meffert.” The doctor told the bank at Liberty to take her signature, “ M. Meffert.” She only signed one that way, because there was so much talk and scandal. She had none of the doctor’s checks. She supposed the defendants had thejn. The checks were all made to “ Mrs. Stripe,” or “'Marie Stripe,” to shield her from the public. She frequently collected rents for the doctor for all of the property near where Stripe “ bached ” on 27th and Indiana. During the period covered by the checks, shoAvn in evidence, from December, 1914, to March, 1916, “people usually knew her as e Mrs. Stripe,’ ” Mr. Stripe continued at his work for the doctor after September 3, 1914, the same as before, and the doctor was owing him money for such work when he died. In March, 1916, the doctor moved her and the child away from his home, 1622 Prospect, to 36th and Agnes, because the scandal had become so great. The doctor said his lawyer, Lawson, told him they would be arrested. She expected to have a public ceremony after she was divorced from Stripe. “We thought we were man and wife, but the public did not look at it that way, and we had to please the public and society. The doctor was trying to get a dispensation so we could be married by a priest.” She said she filed a divorce suit against Stripe, but if Stripe contested it and said she was getting it to marry another man, she did not suppose she could get the divorce. This suit was filed on May 13, 1915. Besides alleging that “ she had always faithfully demeaned herself ” as Stripe’s wife, the petition in her divorce suit further alleged .“that he had offered her such indignities as to render her condition intolerable,” and also, that “ plaintiff is now again pregnant with child of which she expects to be delivered about the month of September. That since defendant became aware of such pregnancy, he has been more abusive than ever.” The petition appeared to be duly sworn to and subscribed by her. She admitted signing it, but says she never read it, did not know what was in it, that it was prepared by the lawyer from information given him by the -doctor. When she first went to the doctor’s house, Mrs. Dress! aer, his housekeeper, and the doctor’s niece, Miss Baker, -were there. “Mrs. Dresslaer said, we weren’t married; we said, we were. She kept saying this. She was such a sour old woman. I was not used to anything like that. Miss Baker told the doctor, if I was going to live there as his wife, she would leave. He told her to go, and she left., They both brought in gossip. The doctor had a lot of money, and they were afraid they would lose it. They said I ought to get a divorce and then marry the doctor. This scandal happened all the time. The doctor had a great many patients, and they would bring in news and say things. The doctor told some of them it was none of their business. Some of them had the impertinence to tell him he shouldn’t have me there— just gossiping women. At one time the doctor offered Mr. Stripe twenty-thousand dollars, if lie would give me up, and he refused. The two men could really never meet without going to pieces. Mr. Stripe would not agree, because he didn’t want me to marry the doctor.” Witness’s divorce case was never tried, but after the dqetor died, Stripe got a divorce from her on the ground of adultery with Dr. Meffert. She said the doctor told her that “ under the laAVs of Missouri, he kneAV I could live with him as his wife and nobody could bother us.” That “if I lived Avith him as his wife, if I never got a divorce, our children would be legitimate. I trusted him and believed everything he told me.” He told her, he made a will providing for her and the baby and that his attorney, Mr. Lawson, had it. Meffert died about six months after the child Aims born, Avhile its mother lived at 36th and Agnes. The doctor visited her there during the day time, but still kept up his establishment at 1622 Prospect Avenue.

The folloAVing Avitnesses also testified for plaintiff, as folloAArs:

Charles Meffert, the brother of the doctor, and his Avife, testified that the doctor introduced plaintiff’s mother to them, as “ their sister-in-law.” But, on cross-examination, Charles testified repeatedly that the doctor told him that her husband, Stripe, Avas living, and she Avas going to get a divorce, and then they would be married. He was just keeping her there until that time. Charles was recalled to the stand next day by plaintiff, and said he had thought it all over again, and that he had made a mistake, that what the doctor said Avas, “ She is my Avife, and after the divorce, Ave are going to be publicly married.” Both Charles and. his Avife testified that the doctor said the child Avas his. He resembled the doctor. Charles also testified that defendant Sylvia C. Barrick was the daughter of the doctor by a Avoman who claimed to be his Avife by “ a secret marriage or something,” but the only marriage of the doctor that he kneAV anything about was to defendant Ann Meffert’s mother.

M. S. Murray, testified: That Mrs. Fellows introduced plaintiff’s mother to him, as he recollected, as “ Mrs. Meffert.” Dr. Meffert was in the room at the time.

Another witness said that she lived near Mrs. Stripe, when the latter lived at 36th and Agnes — one day she saw the doctor there, and he played with the child like it was his own son.

Margaret O’Rourke, a patient of the doctor’s testified : that shortly after the plaintiff was born, she remembered that the doctor talked about the child as his boy, all the time, and said it looked like him. “ The child looks just exactly like him.”

L. E. Hunter testified: That the doctor referred to plaintiff’s mother as his wife on one occasion, when they were in witness’s restaurant, and that she was in a delicate condition. He “ kidded the doctor about it.”

Defendants’ evidence:

John S. Major testified: That he was president of the First National Bank of liberty, where Dr. Meffert kept his account. ■ He was never told to pay any checks signed by “A. M. Meffert”'or “ Joseph F. Meffert by A. M. Meffert,” or that that party Avas Meffert’s wife. After the doctor’s death, his checks, from the time of his last balance were turned over to his administrator. The cashier of the bank also testified to the same effect.

Martin E. Lawson, testified: That he was attorney for Dr. Meffert at Liberty, from 1893 until his death. The doctor Avas over at Liberty once a week. First knew him in 1890, when his wife obtained a divorce from him; drew up his Avill, which was read in evidence; never heard him mention Mrs. Stripe. In the month of September, 1914, prepared another will for him. At that time, he came to my office, and told me -he wanted to change his will. I got out the original will, and told him I thought it well to read that over before making any changes; he noted down the changes he wanted made and left them with me to write up the new Avill. I prepared it or had it prepared according to his directions. When he came in again, he read it over, and suggested a few changes. I told him I would have it recopied. He did not come in for a week. He then read it over, and said it was all right, but he was on a deal to dispose of the 15th Street property, and if he did he might want to make a few minor changes. I said to him, he had been quite sick, “It might be well not to delay matters too long.” He said, “The old will will stand, if I don’t make this one?” I said “it would,” and he replied “all right,” and went out and never executed the new will. The new, unexecuted will, dated the “-1 day of September 1915,” was introduced in evidence, and showed no provision for nor mention of plaintiff or his mother. Witness was the executor of Dr. Meffert’s will dated, 1904, which was duly probated and by which the prop^erty in question was devised to him as trustee for defendant Anna Meffert, the doctor’s daughter. Witness, as such executor, with the witnesses, as required by law, took charge of the property and the papers of Dr. Meffert. He received the canceled checks from the First National Bank of Liberty and none were payable to Mrs. J. F. Meffert or to Mrs. Meffert, and none signed by Mrs. Joseph F. Meffert or A. M. Meffert or Marie Meffert or the doctor’s name by any one of that description. There was only one check in the German American Bank, and that was payable to Mrs. Stripe. That balanced the account and was dated March 16, 1915. Mrs. Dresslaer, the doctor’s house keeper, presented a claim against the estate for 18 years services, which, with the consent of the doctor’s daughter, he allowed. Charles Meffert presented a claim on a note, which witness was resisting on the ground that it had been changed from $29.50 to $2950. The other one for $500 has been changed so as to take it out of the Statute of Limitations. At the time witness consented to allow Mrs. Dresslaer’s claim, he had no notice of any other person claiming an interest in the estate, except the deceased’s daughter, Anna, and she consented. Witness identified a letter he wrote to Dr. William F. Meffert of Emporia, Kansas, saying he would like to have a tails: with Charley Meffert or his wife, to find ont what they knew about the Stripe case, and he might be .able to make a proper arrangement, so far as their case was concerned, if he knew what facts they knew about the Stripe case. At that time, Dr. William Meffert and witness were trying to compromise the Charley Meffert case, and this letter was written in response to a conversation they had at Liberty in regard to compromising the case.

George W. Day .testified: That he filed the petition for divorce for Mrs. Stripe against her husband, and got all the facts stated in the petition from Mrs. Stripe. She came to his office four or five times before the petition was filed. Got no information from Dr. Meffert, nor any one except Mrs. Stripe. She urged haste. She wanted the custody of the children in peace. When the case came up several times, she was too ill to appear, and it was continued. After her child was born, some one called witness to go out to Dr. Meffert’s house to see her. He went, and she said to drop the case, which was done. The information as to her pregnancy, at the time the petition was filed, as therein alleged, was given to him by Mrs. Stripe. Witness had examined abstracts and attended to other matters as attorney for Dr. Meffert for six or seven years before his death. When she consulted witness about her divorce in May, 1915, witness was given her address as 3408 East 27th Street (27th and Indiana), according to the memorandum which he made at that time. After the divorce petition was filed Mr. Ellis told .the witness that he represented Stripe, and that Stripe said that Mrs. Stripe and the doctor had been guilty of adultery; that the doctor had alienated her affections, and that he (Stripe) intended to sue the doctor on account thereof.

T. O. Sparks testified: That he was a notary public and swore Mrs. Stripe to her petition for divorce; that she read it over, and said, that she understood and it was all right. Then she swore to it and signed the affidavit in his presence.

L. A. Grladdish, credit man at Harzf eld’s, testified: That Mrs. Stripe had no account there in her name, hut on December 4, 1914, she signed an application in her name, Marie B. Stripe, for a credit account -in the name of Dr. Meffert. She said, she and the doctor were going to get married. This account ran in the doctor’s name for about a year, and then he revoked it by a letter. The witness put in evidence, both the application signed by Marie B. Stripe and the letter signed by Dr. Meffert.

Celia Dresslaer, the doctor’s housekeeper, for many years before his death, said, that about the first of September, 1914, Mrs. Stripe came to the Doctor’s house, 1622 Prospect Avenue, to board. The doctor said, Mrs. Stripe wanted to bring her children and come there to board for a short time until Mr. Stripe got the building .fixed up at 27th and Indiana; there were rooms upstairs that they wanted to occupy. Witness objected, because the work would be too hard for her. But Mrs. Stripe came the next day. She said, “I won’t be here long and will help with the work. ’ ’ She had one of her little girls with her. She stayed, but did not help much. Witness told the doctor, she could not stand it, and that she would go back to Liberty. She went in November, 1914, but, at the request of the doctor, came back and collected a couple of months’ rent for him. Mr. Stripe was there and took his meals several times before witness left. Mrs. Stripe went out nearly every evening and said she was going to 27th and Indiana to see Mr. Stripe. It would be eleven or twelve o’clock sometimes before she got back. That was the situation until witness left in November. She came back and collected the rents for December and January, when the Doctor said, Mrs. Stripe said, she would collect the rents, and witness did not collect any more. Witness returned in March, 1915. The doctor told her Mrs. Stripe had gone, but she came back that same day, and said she. had been gone six weeks. In April, the doctor’s mother and invalid brother came. Mrs. Stripe was back and forth, but never stayed at night until May when she returned to stay. Witness could then see what condition Mrs. Stripe was in. Mrs. Stripe said, that she was threatened with a miscarriage, and Mr. ■ Stripe thought it would be cheaper for her to come there and stay, and have the doctor treat her, than have him go to see her. So she came there for treatment. Mr. Stripe came afterwards several times before the child was born and took meals there. He was there the. evening before the child was born. After the child was born, Mr. Stripe called her up over the ’phone and witness answered.' She told Mrs. Stripe that Mr. Stripe said, — that he asked if the mother and father were doing well, and she told him the mother was, and he ought to know whether the father was. But he said, he did not know about the father. When witness told Mrs. Stripe that, she said, that he was a liar and just wanted to “start something” on Dr. Meffert. The child was' born on October 6, 1915. The doctor died March 29, 1916. Mrs Stripe had gone away to 36th and Agnes a month before the doctor’s death. The doctor was very fond of children and of this Stripe child. Never heard the doctor speak of its parentage. Mrs. Stripe and the doctor never occupied the same room or the same bed to the knowledge of the witness. They had separate bed-rooms. On one occasion in October, 1914, when Mr. Stripe came over, Mrs. Stripe met him out in front and he greeted her with a kiss. Then they both came in and ate dinner. Mr. Stripe ate dinner at the house six weeks or two months before the baby came. Pie spent the whole afternoon that day with Mrs. Stripe in her room. He was working for the doctor then. The doctor dined with us. The child was christened by a Catholic priest. The doctor and his mother were both Catholics. Mrs, Stripe said, she was a Protestant. Dr. Meffert held the baby in his arms during the entire ceremony. They named the child, Frederick Meffert Stripe, before he was baptized. Never heard any discussion between Dr. Meffert and Mrs. Stripe with reference to the name of the child. Before Mrs. Stripe left 1622 Prospect and went to 36th and Agnes, there was such a disagreeable situation, that finally she and the child went over there. The doctor went over to see the child, when it was sick. He never stayed there at night. He was sick at home for about ten days before he died. When witness found the doctor had not left her anything for her wages, she felt she had a claim against the estate. ' She put in a claim, to which Miss Anna Meffert consented. The doctor’s mother died the 15th of December before the trial.

Bessie Baker testified: She lived at her uncle, Dr. Meffert’s, for two years before November, 1914. A couple of weeks before she left, Mrs. Stripe came there, to board until her husband fixed up a place at 27th and Indiana. That is what Mrs. Stripe said. Mrs. Stripe would leave every evening after supper and say she. was going to 27th Street to see Mr. Stripe. Mrs Stripe slept with the witness the first two or three nights she was there. After that she and her little daughter, Constance, slept together in the north bed-room. The witness worked for the Board of Education at the Public Library. Mrs. Stripe’s being there had nothing to do with her leaving there. While she was there, they called plaintiff’s mother, Mrs. Stripe, including the doctor. Never heard her called by any other name.

Mrs. Kate Abbot testified: She was a nurse and nursed Mrs. Stripe’s baby at 1622 Prospect. Dr. Meffert introduced her to witness as Mrs. Stripe. No one there called her anything else. Mrs. Stripe paid her for her services when she left. The doctor seemed to think a lot of the baby.

Defendant Anna Meffert testified: She and her mother lived at Liberty. She was in the millinery business at Liberty, which her father, Dr. Joseph P. Meffert, started for her in the spring of 1905. She was at her father’s house several times when Mrs. Stripe was there. Mrs. Dresslaer called her, “Mrs. Stripe,” Her father said she was collecting rent for him. That was in the summer before her (Mrs. Stripe’s) child was born. Witness and her father were always on good terms. He often called on her at her store in Liberty.

In rebuttal, plaintiff’s mother denied saying that Mr. Stripe was a liar, when he said he did not know anything about who the plaintiff’s father was. The other testimony in rebuttal was substantially as testified to before or unimportant.

At the close of the testimony, the court gave and refused certain instructions for plaintiff and defendants.' Among those instructions refused for defendants, was a demurrer to the evidence.

The jury then returned a verdict answering the specific questions heretofore set out, and the cause was continued several times for the hearing of further testimony. On January 31,1919, in lieu of further testimony, the parties agreed to submit a stipulation in said cause, and said cause was submitted on stipulation and taken under advisement.

On February 5,1919, judgment was entered in which the court adopted the special verdict of the jury, and found that plaintiff was the legitimate child of Dr. Meffert, and not being mentioned in his will, said Meffert is deemed to have died intestate, as to the plaintiff. ’ Tin court further found, that Sylvia C. Barrick had trans ferred her interest to defendants, Lawson, executor, and Anna Meffert with respect to which plaintiff and defendants entered into a stipulation, which is approved by the court, and provides, that if plaintiff is finally adjudged to inherit an interest in said property, his interest shall be charged with his proportionate share of $5,000, which said defendants paid said Sylvia C. Barrick for her interest in said estate. Said instrument further provided, that said cause be and the same is here and now finally submitted to the court for decree. Judgment was, therefore, entered for plaintiff, declaring, that he was entitled to an undivided one-half interest in the real estate described in the petition, subject to said stipulation, and the defendants to the remainder, subject to the will of said Meffert.

"Within four days after the rendition of said judgment and at the same term of court, defendants filed their motion for new trial, which being overruled, they appealed to this court.

I. The first point made by respondent is, that the motion for new trial was not filed within four days from the filing of the verdict. The statute requires the motion to he filed within four days “after ,the trial” of the case. [Sec. 2025, R. S. 1909.] Usually ^he trial, if the suit is at law, is ended with the coming in of the verdict, because that determines all of the issues necessary to found the judgment upon. But in this case, plaintiff claimed the entire fee in the land. Defendant Lawson, as executor] also claimed the entire fee, as trustee for defendant Anna Meffert. The only issue submitted to the jury was whether plaintiff was Dr. Meffert’s son, horn of a marriage with Mrs. Stripe. No judgment for plaintiff could he based upon that finding alone. The title of defendants, as claimed under the doctor’s will, remained yet to he determined. Notwithstanding plaintiff might have been his son — and even his legitimate son — the will might have vested the entire estate in the daughter or others. Indeed, the daughter might have had an interest also by reason of her purchase from her co-defendant Sylvia C. Barrick, recited in the decree, because there is evidence, that said Sylvia was the doctor’s daughter by a “secret marriage or something” with still another woman. So that, whether the defendants or plaintiff had any interest in the land, and what interest, had to be, and was determined, after the special verdict in this case was rendered. It was so determined by the court without the further intervention of a jury, hut not until the day the judgment was rendered. Hence, the trial continued until that date, and the motion for new trial, being filed within four days thereafter, was filed within the time required by the statute. This is true, whether the suit was in law or in equity.

II. The respondent earnestly contends, that the proceeding is one strictly at law, and, therefore, we cannot review the evidence and try the case de novo, bnt are bound by the finding of the jury and court below, as to the facts, and can only consider errors of law. It is true, that plaintiff vigorously contended below, that the suit was at law, that he was entitled to a jury trial and refused to waive a jury, so far as the issue of his legitimacy was concerned. But evidently, the court was of opinion, that it was a chancery case, or that the issue of plaintiff’s legitimacy was an equitable issue; because it did not enter any judgment on said verdict, but adopted it as part of its findings of facts, and then rendered judgment thereon, as in equity cases. The verdict was treated as merely advisory, as in equity cases. The subsequent matters in issue, as well as the settlement with Sylvia C. Bar rick, the approval and enforcement of which involved the exercise of the equity powers of the court, were disposed of by the court without a jury with respondent’s acquiescence and consent. Under such circumstances, the case may well be ruled as having been tried below as a chancery case, with respondent’s consent, and, hence, will be so tried de novo, in this court. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckemeir, 134 Mo. 380.

III. JPlaintiff bases his whole right to recover upon Section 342, Revised Statutes 1909, which is as follows: “The issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate.”

The plaintiff claims, that he is the issue of a marriage “decreed” null in law, under this statute; that the word “decreed” is a clerical error for the word “deemed,” which was in the law as originally passed by the Legislature, but was inadvertently changed to ‘ ‘ decreed ’ ’ in printing the Revision of 1865, and had been inadvertently retained in all the successive revisions of the statutes since that time. Learned counsel are in error. An examination of the original enrolled bill of the General Statutes of 1865, being Section 11 of Chapter 135, of such enrolled bill, in the office of the Secretary of State, shows, that the word “decreed,” not “deemed,” is plainly written therein. The issue raised under said section is of equitable cognizance, as has been authoritatively, and we think, correctly settled in this State in the case of Green v. Green, 126 Mo. 17, opinion by Macearlane, J. In that case, this court said, pp. 22, 23, 24:

“The policy of our law is to make legitimate children of all marriages contracted honestly and in good faith by one of the parties. The children of such marriages when entered into in good faith by one, or both of the parties, should not in right be stigmatized as. bastards, and disinherited-on account of the fraud of one, or the honest misapprehension of both of the parents. To carry out this policy remedial statutes have been passed modifying the harsh common-law rule on the subject. Thus our statute on the subject of divorce which gives one party a right to dissolve the marriage in case the other had a husband or wife living at the time it was contracted, expressly provides that no such divorce shall affect the legitimacy of the- children [Section 4500.] This provision has been retained on our statute books since the revision of 1845 and possibly longer. Again, under our statute law of descents and distribution it was declared as early as 1825 that, ‘the issue of all marriages deemed null in law or dissolved by divorce shall nevertheless be legitimate.’ [Revised Statutes 1825, page 328, sec. 8.]
“The Act of 1825 was continued in force through the revisions of 1835 and 1845 without change. In the revision of 1865 the word ‘deemed’ used in the original act was changed to ‘decreed.’ So that the section reads: ‘The issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate. ’ This change has been continued through the revisions of 1879 and 1889. [R. S. 1889, sec. 4475.]
‘ ‘ Plaintiff now contends that under the act, as it now stands, the defendants are illegitimate and incapable of inheriting from their father, William Green, though his marriage to their mother was in entire good faith on her part. This contention is pnt npon the ground that there had never been a formal decree annulling the marriage. We do not think the Legislature ever contemplated so radical a change in the law. If the change had only appeared in one revision we would not hesitate to hold that it was made through inadvertence. [Jones v. Driskill, 94 Mo. 200; Hyatt v. Wolfe, 22 Mo. App. 191; Turner v. Babb, 6 Mo. 347.] “But, assuming that the word decreed’ was used intentionally, we think it should not be given the meaning attributed to it by plaintiff. Assuming, as we do, that the word ‘decreed’ was intentionally used, we think the Legislature did not intend that its meaning should be materially different from the wo I’d ‘deemed’ used in the original act. We think the act should be given a sensible and practical 'interpretation, and if upon the trial of a cause in which the legitimacy of children is involved, the evidence shows such a state of facts as would justify a court of equity in declaring the marriage null and void, the children of such marriage would be legitimate by virtue of the statute. The Legislature may have contemplated that a decree to the effect that the marriage was void, should be entered when the fact is so found, and that may be the better practice, but we do not think it essential in order to give effect to the statute.”

We hold the true interpretation of the statute is as above suggested by Maceaklane, J., that the children to be legitimate thereunder must be the issue of parents between whom there was, not only a marriage, but such á marriage as would be decreed null in law, or dissolved by divorce in a proceeding in equity between the parties to such marriage. In an action to annul a marriage in equity, for any reason, or for divorce, if both parties knowingly lived in adultery, there would be no marriage to annul, and neither would be an innocent or injured party, and neither would come into court with clean hands, and no relief would be granted to either.

Accordingly, we hold, in harmony with the case of Green v. Green, supra, and basic equitable principles, that unless such marriage is entered into by one or both of the parents honestly, innocently and in good faith, it is not such a marriage as is contemplated by said Section 342. This conclusion is also supported by this court in the case of Nelson v. Jones, 245 Mo. l. c 597, where the court said:- “In the Green Case some stress is laid on the good faith of at least one of the parties contracting the second marriage. It may well be that in order to constitute a marriage at all, there should be an element of good faith, a bona-fide intention to marry, as over against an intention to indulge a mere prank or mere casual sexual commerce.”

We have also examined all the eases heretofore decided by this court construing this statute cited by counsel and in each case there was good faith on the part of one or both of the parents contracting the marriage. [Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, Admr., 30 Mo. 80; Buchanan v. Harvey, 135 Mo. 276; Dyer v. Brannock, 66 Mo. 396; Bishop v. Brittian Inv. Co., 229 Mo. 699.]

Especially can there be- no so-called common-law marriage, unless bottomed upon good faith — a bona-fide intention to create and enter into a legal marriage. [Perkins v. Silverman, 223 S. W. 895 (this court).]

The language of the court in the case of Stones v. Keeling, 5 Call. (Va.) 143, relied upon by respondent, as holding that under such a statute, as ours originally was, the marriage may be even criminal, as to both parents, was not necessary to the decision of the case and may be regarded as a mere dictum. In that case, the court said, page. 146; “We cannot in this case say, that it was criminal. Circumstances may exist, such as a belief of the death of the first husband or a seven years’ absence by him, which may render the second marriage even innocent.”

Greenhow v, James, Exr., 80 Va. 641, rules that their statute does not contemplate an absolutely void and criminal marriage as to both parties. ' But neither said cases, nor cases from other states, cited by learned counsel for respondent, apply to our statute, since its amendment in 1865 by inserting the wdrd “decreed” in lieu of the word “deemed” in the original act.

We are all the more persuaded, that there must be a bona-fide marriage by at least one of the parents under said Section 342 of our statutes, by reason of the provisions of the immediately preceding Section (341, R. S. 1909) which is as follows: “If a man, having by a woman a child or children, shall afterwards intermarry with her, and shall recognize such child or children to be his, they shall thereby be legitimated.” This section covers the case of an adulterine bastard, o.r a child born of a married woman and a man not her husband, with whom she has committed adultery. In such case, the question of good faith in the relations of the parents at the time the child was conceived or born is not regarded. Though .their sins be as scarlet — yet, if they afterwards contract a legal marriage and recognize their children, such children shall stand legitimate before all the world. [Busby v. Self, 223 S. W. 729 (this court).] These two sections must be read and construed together, they supplement and complement each other. When so read, one (Sec. 342) covers the case, where there was a marriage between the parents, but it would be decreed null in law. There can be no marriage without a bona-fide intention to marry in compliance with the law of the State where the marriage is contracted, because marriage is a legal relation, and if the intention of 'the parties to it is to form a relation contrary to or in defiance of the law, they can have no intention to enter into a marriage at all. It frequently happens that parties in good iaith intend to marry in compliance with the law — to form a legal relation — but it turns out that some fact exists, not within their knowledge at the time, which renders such marriage null and void in law, such as one or both of them having another spouse from whom they erroneously supposed they were freed by death or divorce, or they were related within the prohibited degrees of consanguinity, or other impediments of which they were ignorant, existed which rendered their marriage void. In all snch cases, there would he a marriage which would he decreed null in law, to which said Section 342 would be applicable, and the issue of such a marriage would be legitimate thereunder. But Section 341 applies to cases where the relationship between the parties at the time the child was conceived, was illegal and criminal, as to both parents, and in such case, that section requires a subsequent legal marriage of the parents to make the children legitimate. Both sections were not intended to cover the same ground.

We hold, that said Section 341 governs, when there is no marriage, or, what is the same thing, where the alleged marriage was prohibited by law and absolutely void and criminal, as to both parents, and said Section 342 governs, when there was a bona-fide marriage, at least, so far as one of the parties was concerned, but yet would be decreed null in law.

IV. This case is governed by said Section 341, and not by said Section 342, because the alleged marriage (if there was any such marriage, at all, which we need not pass on) between I)r. Meffert and Mrs. Stripe, was absolutely null and void and criminal, as to both parties — because both parties knew Mrs. Stripe was the wife of W. H. Stripe at the time their alleged marriage took place and during its continuance. It was doubly criminal' on her part, because she was guilty both of adultery and bigamy. He was guilty of adultery and, perhaps, also of bigamy, because there was evidence that Sylvia C. Barrick was his daughter by a secret marriage with her mother which might have been valid and from whom he was never divorced. Every one is presumed to know the law. The acts of Dr. Meffert and Mrs. Stripe would still be as criminal, even though they had been ignorant of the law. But, in this case, we find that both of them, as a matter of fact, did know the law, and that their relations were a wilful and defiant crime against both the law of God and man, as they knew and believed it to be. For plaintiff to recover under said Section 341, he would have to show, not only that he was the child of Dr. Meffert and Mrs. Stripe, but that after he was born, and their adulterous cohabita-' tion was terminated, they consummated a legal marriage and recognized him as their child. This was never done.

V. It follows, also, from the undisputed fact that both Dr. Meffert and Mrs. Stripe knew she was the wife of W. H. Stripe, when their alleged marriage occurred and during its entire existence, even if this were a case strictly at law, the judgment would have to be reversed, because in that event the demurrer to the evidence before the jury, which passed on the special questions submitted to them, should hase been given. There was no evidence to sustain the finding of the jury, that there was a marriage between Dr. Meffert and Mrs. Stripe, within the meaning of either of said Sections 342 or 341 of our statutes.

VI. Whether the plaintiff is, in fact, the son of Dr. Meffert, or Mrs. Stripe’s husband, is not necessary for us to decide. The non-access of the husband is required to be shown in such cases by clear and convincing evidence; otherwise, the presumption is that the wife’s husband, and not her paramour, is the father of her child. Nothing we have said is intended to convey the impression, that the plaintiff is not legally entitled to the name he bears. We do not pass on that point.

The judgment of the lower court is, therefore, reversed, and the cause remanded to the court below, with directions to set aside its decree heretofore rendered, and enter judgment, that the plaintiff has no right, title nor interest in the property sued for, but that the same is vested in the defendant, Lawson, executor, in trust for the defendant, Anna Meffert, under the terms of the will of said Joseph F. Meffert, deceased.

Brown and Ragland, CC., concur.

PER CURIAM:

The foregoing opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur.


author: WOODSON, P. J. GRAVES, J.

text:
    FANNY J. BEARDSLEY v. JOHN P. BASS, Administrator of Estate of HERBERT C. BEARDSLEY, and ESTELLA B. BASS, Appellants.
    Division One,
    April 9, 1921.
    HUSBAND AND WIFE: Contract Looking to Divorce Void: NonSeverable Clauses. A married couple entered into a contract whereby the husband agreed to pay the wife $200 per month during the rest of her life unless she should decide that she wished to remarry, in which case he was to secure a divorce on the grounds of desertion, the monthly payment to start as soon as the wife should leave him and to cease when he should be notified of her desire to remarry. Other clauses provided that he should keep alive a certain $12,000 policy of life insurance for her benefit, to be discontinued, however, upon her remarriage; that if he died first she should inherit all his property, provided she had not remarried in the meantime; that she should at any time sign any deed or other instrument necessary to enable him to conduct his real estate or other business; that she should in no way interfere with or obstruct him in the conduct of his business; that in case of her remarriage she should transfer to him all her rights in his property and in any property that they might have conjointly; that she would sign no legal paper of any kind without his permission, and would incur no debt to be paid by him; and that the furniture in the fiat then occupied by them should be sold and the proceeds divided equally between them. Held, first, that this contract in its entirety was void, because it was intended to promote and facilitate a divorce; and, second, that the other provisions could not be validated by eliminating the divorce clause, since the contract was not severable.
    Appeal from Buchanan Circuit Court. — Hon. Lawrence A. Vories, Judge.
    Reversed.

      W. B. Norris and W. M. Morton for appellants.
    Contracts facilitating actions for divorce are void and illegal and any promise founded on such an agreement is not enforceable. Blank v. Nohl, 112 Mo. 169; Hudson v. Hudson, 176 Mo. App. 69; McDonald v. McDonald, 175'Mo. App. 513; Banner v. Banner, 184 Mo. App. 396; Hamilton v. Hamilton, 89 111. 349; Sayles v. Sayles, 21 N. H. 312; Davis v. Hinman, 73 Neb. 850, 103 N. W. 668; Barngrover v. Pettigrew, 128 Iowa, 533, 104 N. W. 904; Muckenberg v. Haller, 29 Ind. 139; Seelly’s Appeal, 56 Conn. 202, 14 Atl. 2:91; Smutzer v. Stinson, 9 Colo. App. 326, 48 Pac. 314; Beard v. Beard, 65 Cal. 354, 4 Pac. 229.

      Eastin & McNcely for respondent.
    The contract is legal. 9 Cyc. 521; 21 Cyc. 1592; Uarbut v. Bolling, 81 Mo. 214; Rough v. Rough, 195 S. W. 501. It contains no illegal provision. The words complained of are: ‘ ‘Unless the said party of the second part should decide that she wishes to remarry, in which case it is fully agreed that the said party of the first part shall secure a divorce on the ground of desertion.” The situation of the parties, as it is made to appear by the whole contract, must be considered in arriving at a correct interpretation of this language. The agreement is one for permanent separation. The husband agrees to pay the wife $200 per month while she is living apart from him and “during the rest of her life.” By a succeeding paragraph he agrees “to continue the payments (on life insurance) which is and shall be payable to the party of the second part at the decease of the said party of. the first part.” The parties therefore contemplate that they shall remain husband and wife, even though separated, until the relation shall be dissolved by the death' of one of them. If the wife should decide that she wanted to re-marry, that would be an abandonment or desertion, and would give the husband the right to a divorce, and he also claimed the right (and it was so written in the contract) to a cessation of the payments he had agreed to make. Even if the divorce provision is illegal it i§ separate from the other parts of the eon-tract and they are enforcible. Wharton, Contracts, sec. 338; McCnllongh v. Smith, 243 Fed. 832; Rosenblatt v. Townsley, 73 Mo. 536.
   WOODSON, P. J.

This is a bill in equity brought by the plaintiff against the defendants in the Circuit Court of Buchanan County to specifically enforce a contract made and entered into between husband and wife as set forth in the petition, which reads as follows:

“Plaintiff for cause of action against the defendants states that she is the widow of Herbert C. Beardsley deceased; that defendant John P. Bass is the administrator of the estate of Herbert C. Beardsley, deceased, duly appointed and qualified by thé Probate Court of Buchanan County, and that defendant, Estella B. Bass, is the wife of said John P. Bass, administrator aforesaid, and only surviving sister of Herbert C. Beardsley, deceased; that said Herbert C. Beardsley left surviving him no child or children and no descendant of a deceased child and no brother or sister other than the said Estella B. Bass.
Plaintiff further states that on the 2'0th day of November, 1916, she entered into a contract with said Herbert C. Beardsley, by the terms of which the said Herbert C. Beardsley for a valuable consideration agreed either to convey or assign or devise to plaintiff, all the property, real or personal, which he might own at the date of his death; that said contract is in words and figures as follows:
“ ‘This agreement, made and entered into this 20th day of November, 1916, by Herbert C. Beardsley, party of the first part, and Fannie C. Beardsley, party of the second part, both parties being of Buchanan County, State of Missouri, as follows:
Said party of the first part agrees to pay to the said party of the second part, while the said party of the second part is living apart from the said party of the first part, the sum of $200 per month or $46.16 per week during the rest of her life, unless the said party of the second part should decide that she wishes to re-marry, in which, case it is fully agreed that the said party of the first part shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from the date he is notified that the said party of the second part wishes to marry again. These payments are to start as soon as said party of the second part leaves the said party of the first part.
“ ‘It is further agreed that the said party of the first part shall continue the payments on the $12,000 policy of life insurance in the New York Life Insurance Company, which is and shall be payable to the said party of the second part at the decease of the said party of the first part as per term of said policy. Said insurance to be discontinued at the re-marriage of the said party of the second part.
“ ‘It is further agreed that if the party of the first part should die before the party of the second part, that she, the party of the second part, is to inherit all realty and such other property that is in the name of the said party of the first part at the time of his demise, provided, that she has not remarried by that time.
“ ‘It is further agreed by the party of the second part that she will at any time sign promptly any deeds- or other instruments of writing necessary for said party of first part to properly trade, transfer or otherwise conduct his real estate or any other business that he may be engaged in.
.“ ‘It is further agreed that the said party of the second part will in no way interfere with or obstruct the said party of the first part in the conduct of any business that he is in or may engage in, or in any employment that he may seek or hold.
“ ‘It is further agreed that in case of the re-marriage by the said party of the second part, that she will, previous to said marriage, transfer by proper deed, all rights, title and interest that she may have at that time in any or all property of said party, of the first part to him and all rights, title or interest that she may have in any property, real or personal, held conjointly by both parties to this agreement.
“ ‘It is further agreed by the said party of the second part that she will sign no legal papers of any kind, notes or other articles of indebtedness, without the permission and consent of said party of the first part. That she- will incur no bills or other indebtedness that will have to be paid by the said party of the first part.
“ ‘It is further agreed that the furniture, etc., now-contained in the fiat at 216 V-j North Eighth Street, St. Joseph, Mo., now occupied by the two parties to this contract, shall be sold and the proceeds divided equally between the two parties agreeing herewith, excepting (a) such articles that have been given as presents to the said party of the second part, which are and shall be her individual property, (b) such books as the said party of the first part may want, also one writing desk.
“ ‘We, the said parties of the first and second pari have herewith attached our signatures to the above articles of agreement, in duplicate, one copy to be kept by each party, the day and date above mentioned at St. Joseph, Buchanan County, Missouri.’ ”

To this bill the defendants filed a demurrer, which the court overruled and the defendants declining to plead further, rendered a decree for the plaintiff as prayed for.

From that judgment the defendants duly appealed to this court.

T. Several errors are assigned, but from the view we take of the case it will be necessary to consider but one of them, and that is that the contract shows upon its fact that it was a contract of separation made by and between husband and wife, and for a decree of divorce to be rendered in a case to be brought by him against her upon the grounds of desertion. The contract in that regard reads: that the husband was to pay the wife $200 per month unless she should decide that she wanted to remarry, in which case it was agreed that “he shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from date that he is notified that the said party of the second part wishes to marry again. ’ ’

This contract clearly contravenes Section 2371, Revised Statutes 1909, which provides that ‘ ‘ the petition [for divorce] shall state the facts of the case, and be 'accompanied by an affidavit that the facts stated herein are true, and that the complaint is not made out of levity or by collusion, fear or restraint between the parties for the mere purpose of being’ separated from each other, but,” etc.

Counsel for respondent, with more plausibility than sound argument, contends that this clause can be eliminated from said contract and not change the meaning thereof, and the remainder would still constitute a valid and binding contract, and therefore enforcable in a court of equity.

After careful consideration of that argument we are unable to lend our concurrence thereto, and do not believe that the contract would ever have been entered into, had that clause been omitted at the time of its execution.

For the reasons stated we are of the opinion that the contract was void, and non-enforceable and for that reason the judgment of the circuit court is reversed and a decree is here rendered for the defendants. Graves, J., concurs in separate opinion,

in which James T. Blair and Elder, JJ., concur.

GRAVES, J.

(concurring). — I concur in the result reached by my learned brother in this case but do not agree that the statute he cites is relevant to the issues involved. This statute only pertains to pleadings in a divorce suit. It has no reference to contracts which are void as against public policy. It is true that the same public policy which voids collusive contracts as to divorces prompted this statutory provision as to pleadings in a divorce suit. But this statute does not make contracts void.

The real question is whether or not the contract pleaded is void because violative of public policy. The learned counsel for respondent contend (1) that the contract is not void as being against public policy, and (2) that if a portion of the contract is void for such reason, such portion is severable from the remaining portions, and the remaining portions can be specifically enforced. Appellants contend contra on. both propositions.

In Blank v. Nohl, 112 Mo. l. c. 169, it is said: “The authorities are numerous to the effect that any agreement that the defendant in a divorce suit will not make a defense, or having for its object the dissolution of a marriage contract, or designed to promote and facilitate a divorce is void, because opposed to the policy of the law; and any promise founded on such an agreement is also void, and should not be enforced.”

The italics, supra, are ours. This is the public policy of Missouri succinctly stated, and we do not understand that respondent’s counsel seriously controvert this view. They' contend that the contract set out in the petition does no violence to this rule of law. They urge that if the wife decided to marry again that such decision would amount to desertion, and the contract only provides for a right which the husband would have under the law, i. e. sue for divorce because he had been deserted. The particular clause reads: “Unless the said party of the second part should decide that she wishes to re-marry, in which case it is fully agreed that the said party of the first part shall secure a divorce on the grounds of desertion and said payments to be made by him shall cease from the date that he is notified that the said party of the second part wishes to marry again.”

The italics, supra, are ours. Note the use of the word “shall” as used, supra. There is nothing left (if the contract is to be lived up to) but for the husband to sue the wife for divorce whenever she notifies him that she desires to marry again. But this is not all.-' No fair interpretation of this contract can exclude the idea that the parties were likewise agreeing that there should be no defense made to the suit which the contract compellecl the husband to bring. This idea is not expressed in definite terras but the whole tenor of the instrument so shows.

This clause, in my judgment, voids the whole contract. I do not believe that it is severable from the remaining clauses. It constitutes a vital portion of the agreement. It gives tinge and color to the whole instrument. It was ‘ ‘ designed to promote and facilitate a divorce. ” To the wife it says, all you have to do is say you want to marry again and your husband must sue you for divorce. Inter alia, it further indicates to her “but if he does, you must not defend.” I feel that this contract cannot be upheld, and that the judgment in .the circuit court is wrong and should be reversed and judgment entered here dismissing plaintiff’s bill.

James T. Blair and Elder, JJ., concur in these views.


author: JAMES T. BLAIR, J.

text:
    JOSEPH SCHLITZ BREWING COMPANY v. MISSOURI POULTRY AND GAME COMPANY et al., Appellants.
    Division One,
    April 9, 1921.
    1. CORPORATION: Ultra Vires: Enforcement of Executed Contract. It is tlie settled .rule of law in Missouri that the defense of ultra vires is not admissible to prevent the enforcement of the contract of a corporation, where the contract has been fully executed on one side, unless it is a contract expressly prohibited by law; and this principle extends to executed contracts for the purchase by a corporation of goods in which the corporation has no authority to deal; and it permits recovery of the price of such goods, purchased and delivered.
    2. -: Estoppel. The provision of Section 9749, Revised Statutes 1919, and Section 7, Article 12, of the Constitution of Missouri, that no corporation shall engage in business other than that expressly authorized in its charter, or the law under which it may have been or may hereafter be organized, does not prevent the application of - the doctrine of estoppel.
    S. STATUTE OF FRAUDS: Oral Contract of Sale: When Valid. In an action to recover the balance due on an oral, contract for goods sold and actually delivered, amounting to $9472.50, the fact that the contract was not by its terms to be performed within one year is no defense.
    4. EXECUTED CONTRACT: Mutuality. Where a contract for the delivery of beer, while it prescribed the terms of payment by the purchaser and set forth many other details, did not obligate the brewer to make deliveries but he did in fact, for a series of years, make such deliveries, in large quantities. Held, that, in an action by the brewer to recover a balance for the beer delivered, want of mutuality was not admissible as a defense; the shipments and ac-' ceptance supplied the consideration to support the contract,
    5. SALE OF GOODS: Bond: Case Adjudged. In the year 1905, a corporation organized for the purpose of dealing in dressed poultry, game and country produce, executed a bond with sureties which recited that it had agreed to purchase beer from a brewing company for a period of ten years, and to sell this company’s beer to the exclusion of all other malt beverages, and that the brewing company consented to sell and ship beer to the Poultry & Game Company, from time to time, as needed in its business, at prices agreed upon; that the Brewing Company reserved the right to change any or all of the prices from time to time, without notice to the purchaser or its sureties; and that it also reserved the right to terminate the agreement to sell beer at any time without notice. The bond further recited that the Brewing Company had agreed to extend to the purchaser a standing credit of $10,000. The Brewing Company did not sign this bond or the contract recited in it, but did for a period of six years furnish beer in large amounts, as ordered. Held, first, that the contract, not being expressly prohibited by law, and not being malum in se, or contrary to public policy at the time it was made, was enforceable against the Poultry & Game Company and its sureties, although not signed by the Brewing Company; second,, the fact that the contract was not to be wholly performed within one year was no defense; and third, the contract was not void for want of mutuality, the Poultry & Game Company having accepted the beer.
    Appeal from St. Louis City Circuit Court. — Hon. ' Rhodes E. Cave, Judge.
    Affirmed.

      Charles B. Stark and Jourdcm, Rassieur & Pierce, for appellants.
    (1) Plaintiff cannot recover on the bond and contract, in an action on contract, because the contract was ultra vires of the Poultry & Game Company as defined in its articles of incorporation, and the constitutional provision and statute governing the powers of corporations. Sec. 7, Art. 12, Mo. Constitution; Sec. 2990, R. S. 1909; Ue La Yergne Co. v. German Sav. Instn., 175 IT. S. 40; Buckeye Marble & Freestone Co. v. Harvey, 92 Tenn. 115, 18 L. R. A. 252:; Anglo-American Land, Mtg. & Agency Co. v. Lombard, 132 Fed. 721; F. & H. Club v. Kessler, 252 Mo. 424; Bowman Dairy Co. v. Mooney, 41 Mo. App. 665; Orpheum Co. v. Brokerage Co., 197 Mo. App. 661. (2) The contract sued on is void for want of consideration, and want of mutuality. Hudson v. Browning, 264 Mo. 58. (3) If the contract sought to be enforced is void, as to the Poultry & Game Company, then there can be no judgment against the sureties. . There can be no such thing as a judgment against the sureties where there can be no recovery against the principal. Kansas City v. O’Connor, 82 Mo. App. 655; Tandy v. Commission Co., 113 Mo. App. 413; Building Assn. v. Obert, 169 Mo. 507; Railroad v. Smith, 27 Mo. App. 371; Brandt on Sur. & Guar. (3 Ed.), sec. 19, p. 163.

      Abbott & Edwards for respondent.
    (1) Full performance takes a contract out of the requirements of the Statute of Frauds, and therefore the contract or transactions between the Poultry & Game Company and plaintiff are not affected by the statute because plaintiff performed all of the conditions imposed upon it. Bless v. Jenkins, 129 Mo. 657; Marks v. Davis, 72 Mo. App. 562; Smith v. Davis, 90 Mo. App. 538; Sloan v. Paramore, 181 Mo. App. 611; Ordelheide v. Traube, 183 Mo. App. 363; Denny v. Brown, 193 S. W. (Mo.) 552. (2) There is no want of consideration or mutuality in the contract or transactions between the Poultry & Game Co. and plaintiff out of which the indebtedness secured by the bond arose. R. S. 1909, see. 2774; Cold Blast Trans. Co. v. K. C. Bolt & Nut Co., 114 Fed. 77, 57 L. R, A. 696; Wulze v. Shaefer, 37 Mo. App. 551; 9 Cyc. 329, 333; Heffernan v. Neumond, 201 S. W. 645; Warren v. Coal Co., 207 S. W. 883; Brown Paper Box Go. v. Merc. Co., 190 Mo. App. 584; Steams on Suretyship (2 Ed.) secs. 28, 57, pp. 34-67; 12 R. C. L. sec. 29, p. 1077; 20 Cyc. pp. 1415, 1416, par. b.; Bleelcer v. Hyde, 3 .McLean, 279. (3) Where, one of the parties to a contract is corporation, the defense of ultra vires cannot be maintained against liability on such contract where it has been performed by one party, the contract not being illegal or immoral or expressly prohibited by charter. The paity who has performed may sue on the contract the party who received and retained the benefits of his performance thereunder. 5 Thompson, Priv. Corp. sec. 6016, p. 4666; 1 Clark 6 Marshall, Priv. Corp. p. 598; St. Louis Drug Co. v. Robinson, 81 Mo. 18; Bank v. Trust Co., 187 Mo. 528; Weyrick v. Grand Lodge, 47 Mo. App. 391; Welch v. Heim Brwg. Co., 47 Mo. App. 608; City of Goodland v. Bank, 74 Mo. App. 365; Ohenoweth v. Pac. Express, 93 Mo. App. 185; Smith v. Richardson, 77 Mo. App. 422; York v. Farmers’ Bank, 105 Mo. App. 127; Bush Const. Co. v. Bambrick-Bates Const. Co., 176 Mo. App. 608; St. Louis v. Ry. Co., 248 Mo. 10.
   JAMES T. BLAIR, J.

Plaintiff is a Wisconsin corporation which formerly brewed and sold beer. Defendant Missouri Poultry & Game Company is a Missouri corporation. In August, 1905, F. W. Brockman'went to Milwaukee and orally agreed with plaintiff to purchase beer from it; that he would form a corporation for that purpose; that he would go into the business and finance it, furnish a bond signed by himself and August Gehner, and in due time notify plaintiff when to commence shipping its product. On August 26, 1905, the bond was signed. August 29,1905, Brockman wrote plaintiff ordering beer, and saying: “You can bill this to me if you prefer until the bond is accomplished or make any other arrangement to please yourself, but the new company will take hold of the business at once.” On August 31, 1905, Brockman wrote:

“The bond is already signed by Mr. August Gehner, a capitalist of this city and President of the German-American Bank, and myself as surety for the Missouri Poultry & Game Company, and will be forwarded to you as soon as we obtain the charter from the State, which we have applied for, and the only reason that I am not sending it along is because I do not wish to have it returned .here or charged, in case the Secretary of State should have some reason or other to make any request for alteration of any of the articles or possibly in the name. At any rate, I stand guod for the two cars of beer ordered and for all which will be forwarded by you, and you can take this as your surety. ’ ’

The bond was sent to plaintiff on September 2,1905. It reads as follows:

“Know All Men by These Present, That we, Missouri Poultry and Game, Company, a corporation, organized under the laws of the State of Missouri, of St. Louis, as principal, and F. W. Brockman and August Gehner, of St. Louis, Missouri, as sureties, are held and firmly bound unto the Jos. Schlitz Brewing Company, a corporation of Milwaukee, Wisconsin, in the sum of twenty thousand dollars, good and lawful money of the United States, to be paid to the said Jos. Schlitz Brewing Company, its successors or assigns, to which payment well and truly to be made, we do bind ourselves, jointly and severally, our heirs, executors and administrators, firmly by these presents.
“Sealed with our seals and dated this 26th day of August, 1905.
“Whereas, the above bounden principal has agreed to purchase for and during the next ten years from the date hereof, beer brewed by the Jos. Schlitz Brewing Company (a corporation engaged in the manufacture of beer at Milwaukee, Wisconsin), to the exclusion of all other malt beverages, in consideration whereof, said Jos. Schlitz Brewing Company has consented to sell and ship, upon the order of said principal, from time to time as needed in his business, its various brands of beer in conformity to the by-laws, rules and regulations established in that behalf and printed on the back hereof, and at the following prices, to-wit: As per special agreement, and to extend to said principal on such purchases a running credit not exceeding $10,000, as long as all purchases in excess of said credit are promptly paid, and the above bounden purchaser, complies with all of his obligations in the premises, the above named obligee having reserved the right to change any or all of the prices aforesaid, from time to time, without notice, to the principal or the sureties; also the right of terminating the aforesaid agreement to sell beer to said principal, without notice, at any time prior to the termination of said period of ten years, and whereupon all amounts then owing from said principal to said obligee shall become due and payable forthwith; and further, reserving the privilege of extending to said principal a running credit in excess of said sum of $10,000 dollars and of extending at any time or times to said principal, credit in excess of said sum, all without releasing or discharging thereby the above named sureties from the obligations of this bond:
“Now, Therefore, the condition of this obligation is such that if the above bounden principal, his heirs, executors or administrators shall faithfully comply with said agreement and shall well and truly pay or cause to be paid to the above named Jos. Schlitz Brewing Company, its successors or assigns all sums of money which may or shall be owing to said Jos. Schlitz Brewing Co., at the time or times when the same shall become payable, according to the agreement aforesaid, and the regulations endorsed on the back hereof, without fraud or delay, then this obligation to be void, otherwise to be and remain in full force and virtue; it being expressly understood that the above named sureties shall, under all circumstances, be liable to the obligee for so much of the indebtedness of the principal as is not in excess of the amount of this obligation, but no more, and that the discharge of this obligation shall not release the principal from the payment of any indebtedness due from him to the obligee in excess of such amount.”

The by-laws, rules, etc., referred to in the bond stated the authority of agents, provided that no order or agreement for the purchase of beer would be binding until received and accepted by plaintiff at Milwaukee; prescribed credits for returned containers and certain terms of sale, other than prices. The “special agreement” referred to in the bond fixed the prices to be charged and paid for beer. These prices were proved orally. Beginning with the order referred to, the Poultry & Game Company, of which Brockman became the president, ordered from plaintiff large quantities of beer which it received and sold. The business was continued on a large scale for nearly six years and was terminated by plaintiff by a notice of which no complaint is made. At the time of the termination of the arrangement there was due plaintiff, according to the agreed price, the amount for which it recovered judgment, $9472.50.

Several grounds are relied upon for reversal.

I. The total amount of*beer sold to the Poultry & Game Company was very large. The gross amount billed during one month which, it seems, is illustrative of the business done, was over $14,000. The net price was over $6300. The balance sued for probably represents the net due for the last few weeks before the notice of termination was given by plaintiff. It is not contended the sale of beer was illegal at that time, nor that it ran counter to the then public policy. It is argued the contract to purchase was ultra vires of the Poultry & Game Company. The charter of that company, as incorporated in 1893, disclosed it was then incorporated to deal in dressed poultry, game and country produce. The representation as to the formation of a corporation in 1905 seems to have been untrue. The charter does not expressly invalidate transactions outside the charter powers, [St. Louis Drug Co. v. Robinson, 81 Mo. l. c. 26.] Tlie contract lias been fully executed by plaintiff. The Poultry & Game Company bas received and had full benefit of the shipments of beer represented by the sued for balance.

1. With respect to estoppel to plead ultra vires to a contract fully executed on one side defendants rely upon the Federal rule, in the main. This court an<^ the courts of appeals of this State long since adopted the rule in force in most of the states which we said in Millinery Co. v. Trust Co., 251 Mo. l. c. 579, had been tersely stated by Rombauer, P. J., in Winscott v. Inv. Co., 63 Mo. App. l. c. 369, to be that: “the defense of ultra vires is not admissible where the contract has been fully executed on one side, unless it is a contract expressly prohibited by law.” Other decisions of like import are: First National Bank v. Guardian Trust Co., 187 Mo. l. c. 522 et seq. and cases cited; Cass Co. v. Ins. Co., 188 Mo. l. c. 13 et seq., and cases cited; St. Louis v. Railroad, 248 Mo. l. c. 27; Kellogg-Mackay Co. v. Havre Hotel Co., 199 Fed. l. c. 733, 734, and cases cited; Fletcher’s Cyclopedia, Corporations, sec. 1543, p. 2609, et seq.; L. R. A. 1917A, p. 749 et seq.; 14A Corpus Juris, p. 319, sec. 2169, et seq. The principle extends to executed contracts for the purchase of goods in which the corporation has no charter authority to deal. [Erb v. Yoerg, 64 Minn. l. c. 465; Re Assignment of Pendleton Hardware Co., 24 Ore. l. c. 332; Whitehead v. Am. L. & B. Co., 70 N. J. Eq. 585; Iowa Drug Co. v. Souers, 139 Iowa, l. c. 79, 80; Albin Company v. Commonwealth, 123 Ky. l. c. 305, 306; Osmer v. Brokerage Co., 155 Mo. App. 211; Vermont Co. v. DeSota Co., 145 Iowa, l. c. 494, 495; Watts Mercantile Co. v. Buchanan, 92 Miss. l. c. 543, 544; Wrightsville H. Co. v. McElroy, 254 Pa. l. c. 429; Lemmon v. Rubber Co., 260 Pa. l. c. 32, 33.]

The Missouri cases cited as supporting a contrary view involved questions concerning the enforcement of executory ultra vires agreements and are thereby distinguished from the instant ease. [See, Fishing & Hunting Club v. Kessler, 252 Mo. l. c. 437; Bowman Dairy Co. v. Mooney, 41 Mo. App. l. c. 676.] In Anglo-American Land, M. & A. Co. v. Lombard, 132 Fed. l. c. 741 et seq., the United States Circuit Court of Appeals was considering an executory feature of the contract before it when it discussed the rule in this State. The court said: “Of course, the present question is whether thfe Missouri Company’s acquisition of stock of the Kansas Company and the incurrence of the stockholders’ liability which is inseparable from ownership of the stock — a liability which has not been discharged and remains an executory obligation — was void in toto or only voidable; in other words, whether the act of a corporation which is not within the scope of its corporate powers, and is therefore prohibited (citations) can have or be given the effect of placing upon the corporation an enforceable executory obligation.” (l. c. 742). It is clear this was understood in the case of Millinery Co. v. Trust Co., supra, and that the case was not given approval as authority for the broad doctrine it is here contended it announced. In fact, in the Millinery Co. case, the exact contrary was expressly stated to be the rule in this State.

2. It is argued the provisions of Section 9749, Revised Statutes 1919, and Section 7 of Article XII of the Constitution of the State to the effect that “no corpora-^011 s^a^ engage in business other than that expressly authorized in its charter, or the law under which it may have been or may hereafter be organized,” preclude a holding that defendants are estopped to set up that the contract in this case was ultra vires of the Poultry & Game Company. The provisions quoted were in existence at the time the cited decisions of this court were made and the doctrine of estoppel , has been applied when the constitutional provision mentioned was before the court. [Summet v. Realty & Brokerage Co., 208 Mo. l. c. 512, 513.] In fact, the violation of some restriction upon the exertion of power by a corporation is the essence of ultra vires action. It would be strange if this court and the Courts of Appeals would so often apply the doctrine of estoppel in the face of the provisions quoted if their effect is to render that doctrine inapplicable in this State. Such is not the case. The question is one often decided. Those provisions but incorporate1 the applicable common law, which is that corporations are restricted to the powers given by their charters. The exception to the general rule of estoppel made in case a charter or provision of law “expressly” prohibits the making of a contract by a corporation cannot be grounded upon the common law or provisions declaratory of it, as are those quoted. The question under these same Missouri provisions was discussed by the United States Circuit Court of Appeals for this circuit in St. Avit v. Kettle River Co., 216 Fed. l. c. 875, 876, and a conclusion adverse to appellants’ present claim was reached.

In National Bank v. Matthews, 98 U. S. l. c. 627, the record under review was that of this court in Matthews v. Skinker, 62 Mo. 329. In one paragraph of its opinion the Supreme Court of the United States assumed the correctness of the holding of this court that a deed of trust acquired by a national bank by the purchase of the note it secured was thereby brought within Section 5137, U. S. R. S. 1899 (13 Stat. 90), which prohibited a national bank from holding “the possession of any real estate under mortgage, ’ ’ but nevertheless held the debtor could not be heard to say the security was unenforceable because ultra vires of the bank. The court cited many authorities and quoted with approval from Sedgwick on Statutory and Constitutional Construction, 73: “Where it is a simple question of authority to contract, arising either on a question of irregularity of organization or of power conferred by the charter, a party who has had the benefit of the agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains.” The court pointed out that the statute did not declare the security void; that if it had been intended it should be' so, Congress easily could have said so; that other statutes specifically prescribed forfeitures when it was desired they should result; that the whole statute was to be examined in determining whether a contract in contravention of it was intended to be rendered void. The judgment of this court in that case was reversed.

In Michigan a statute provided that the articles of association should state “the purpose or purposes for which the corporation is formed, and it shall be unlawful for said corporation to divert its operations or appropriate its funds to any other purpose, except as herein-before provided.” It was held (Butterworth & Lowe v. Milling Co., 115 Mich. l. c. 3) that a transgression of this prohibition might subject the offending corporation to action by the State ‘ ‘ or other appropriate proceeding; ’ ’ but did not prevent the application of the doctrine of estoppel to contracts ultra vires of the corporation.

In Texas a statute provided: “No corporation created under the provisions of this title shall employ its stock, means, or other property, directly or indirectly, for any other purpose than to accomplish the legitimate purpose of its creation.” A corporation organized to manufacture and vend cotton and woolen goods loaned money to one Bond and took his note. When sued, Bond pleaded ultra vires. After approving the general rule that the execution by one party to an ultra vires contract estops the other to plead ultra vires as a defense, the court (Bond v. Mfg. Co., 82 Tex. l. c. 313) dealt with the question of the effect of the quoted statute as follows: “It is true that a distinction is made between the act of a corporation which is merely without authority and one which is illegal. In the one case, it is a question of authority; in the other, of legality. A corporate act becomes illegal when committed in .violation of an express statute on a specific subject, or when it is malum in se or malum■ prohibitum, or when it is against public policy. [Beach on Priv. Corp. sec. 438; Taylor on Priv. Corp. secs. 293, 295.] If, therefore, the transaction here engaged in by appellee was not merely beyond its powers bnt was also illegal, in the sense stated, the contention of appellants should prevail. It will be noted that Article 589 . . . is a general statute. It is merely declaratory of the common law by which corporations are strictly confined in their powers to the limits and fixed purposes for which they were created. The language of the statute at most emphasizes the doctrine of the common law. To such ‘general prohibitions against the doing by corporations of acts beyond the scope of the corporate powers, courts appear to give little effect.’ [Taylor on Corps. sec. 295; Curtis v. Leavitt, 15 N. Y. 54; Halstead v. Mayor, 3 N. Y. 430-433.] And in many cases (and these in our opinion the most authoritative) when the statute has a specific but at the same time an implied application, the doctrine of estoppel against the beneficiary of an executed contract is not changed.” The court cites National Bank v. Matthews as typical of this last-mentioned class. A like holding was made with respect to a similar statute in Harris v. Gas Co., 76 Kan. l. c. 762. The court quoted and approved 1 Clark & Marshall on Priv. Corp. sec. 225b, to the effect that: “A provision in a general corporation law that no corporation created thereunder shall employ its assets for any other purpose than to accomplish the legitimate objects of its creation is merely declaratory of the common-law rule . . . and does not amount to such express statutory prohibition of ultra vires loans and other transactions as to render them illegal instead of ultra vires merely.”. In 2 Morawetz on Corporations, sec. 658, it is stated that provisions in charters of corporations and in general laws “prohibiting corporations from exercising any powers except those conferred by their charters” are “merely declaratory of the general com - mon-law prohibition against any exercise of corporate powers which has not been authorized by the Legislature; and there is no reason for supposing that the Legislature intends to give it any greater force or effect than- the common-law rule.” He points out that statutes of the kind are generally so construed or “ignored” by the courts. In Erb v. Yoerg, 64 Minn. l. c. 465, it was held that one who bad sold and delivered goods to a corporation on an ultra vires contract could not replevin them since the corporation was estopped to plead ultra vires though, a statute made an offense of any “diversion of corporate property to other objects than those specified in the articles.” While the quoted constitutional provision would prevent any general legislative authorization contrary to its terms, yet its restrictive effect upon corporations is no greater than its language, imports when given its ordinary meaning. [Black on Interpretation of Laws (2 Ed.), sec. 11, p. 25; Sedgwick on Constr. Stat. & Const. Law (3 Ed.) p. 19.]

It is argued the decision in Orpheum Theatre Co. v. Brokerage Co., 197 Mo. App. 661, is in conflict with these views. That it contains language apparently justifying such a suggestion cannot be denied. Yet that case involved the enforceability of a voluntary subscription by a brokerage corporation to a theatre corporation to aid in building a home for the latter. The court stated the brokerage company had £ £no interest in the matter which could be subserved” by the erection of the theatre building. In other words, as held by the Kentucky Court of Appeals in a like case, the brokerage company received no benefit peculiar to it, and therefore had not received anything, from the contract which could render applicable the doctrine of estoppel. In so far as the remainder of the opinion in the case cited is concerned it is, if not obiter, out of accord with the settled rule in this State. It results that this point is ruled’against appellants.

II. The Statute of Frauds has no application. The action is for a balance due for goods actually sold and delivered. Whether or not the contract under which the parties proceeded was obnoxious to that stat-u^e ^7 reas011 that it was not to be performed within a year, the beer for the price of which plaintiff now has judgment was actually received. Plaintiff had fully performed, and the statute is no defense. [Bless v. Jenkins, 129 Mo. l. c. 657; Coleman v. Forrester, 178 Mo. App. l. c. 63; Montgomery v. Gann & Mathers, 51 Mo. App. 187; Winters v. Cherry, 78 Mo. 344; Mitchell v. Branham, 104 Mo. App. l. c. 484; Bird v. Bilby, 202 Mo. App. 212; McGinnis v. McGinnis, 274 Mo. l. c. 297.] The action is for the price of goods delivered and received under the oral contract, and the Statute of Frauds is not an answer. [Kratz v. Stocke, 42 Mo. l. c. 358; Smith v. Davis, 90 Mo. App. l. c. 538; Tucker v. Dolan, 109 Mo. App. l. c. 453; 25 R. C. L. p. 707, sec. 351.] The distinction made between part performance and full performance by one of the parties is pointed out in Bird v. Bilby and Tucker v. Dolan, supra. The effect of the bond in this case is to guarantee payment of a balance which might become due on a running credit under a contract to' furnish beer to the Poultry & Game Company. The furnishing of the credit is the consideration of the bond, and that it is so appears sufficiently in the bond.

III. It is argued the contract is void for want of mutuality. Hudson v. Browning, 264 Mo. 58, is cited. In the contract in that case Hudson, defendant, agreec to receive 200,000 railroad ties. The contract did not obligate plaintiff to furnish any number of ties. It was held there was no mutuality and plaintiff could not recover damages for loss of profits. That is not this case. Here, though appellant’s view be taken as correct with respect to the contract when first' entered into, the subsequent shipments and acceptances made applicable the principle that the act of one party on the faith of the unilateral promise of the other supplies the consideration. [Typewriter Co. v. Realty Co., 220 Mo. l. c. 525, et seq.]

For the reasons given the judgment is affirmed.

All concur, except Elder, J., not sitting.