Blanton v. Forrest City Manufacturing Co.

HART, J., (after stating the facts). It is deemed appropriate to state at the outset that Annie Mabel Blanton became 18 years old on the 25th day of August, 1917, and John Cecil Blanton arrived at the age of 21 years on the 30th day of September, 1917. The present suit was commenced on the 24th day of September, 1917. It may be, also, appropriately stated here that this is not a case of mutual subscription for a given object where the promise of others is a good consideration for the promise of each. The contract which we have copied in our statement of facts is the basis of this suit. It is well settled that there must be mutuality in any contract to make it enforceable. It is the contention of counsel for the plaintiffs that the instrument in question was in effect a subscription of the lands and constituted a mere offer which must have been accepted or some expense or legal obligation incurred thereunder in order that a legally enforceable contract might be effected. In this contention we think counsel are correct. The rule is well stated in Wayne, etc., Collegiate Institute v. Smith, 36 Barb. (N. Y.) 576, there the court said: ‘‘Gratuitous promises or propositions to pay money upon condition, or upon the happening of some event, or the doing of some act, or incurring some expense, loss or legal obligation, become binding as legal and valid contracts upon acceptance and performance of the stipulated condition * * *. Upon this principle all difficulty in regard to this class of subscriptions seems to be obviated, and a recovery upon them can be had without resorting to the questionable expedient of patching up a contract by extrinsic parol evidence, from which to help out the subscription paper by the implication of a promise. The object of the subscription is expressed in the paper itself. The terms upon which the defendant agrees to pay are therein specified. When these terms are complied with, or engagements and liabilities incurred on the face thereof, a complete contract is made, and the liability of the defendant has become absolute. ’ ’ The rule was recognized and applied by this court in the case of Rogers v. Galloway Female College, 64 Ark. 627. See also Elliott on Contracts, volume 1, section 228. Many other cases upholding the rule are reviewed in a case note to 17 A. & E. Ann. Cas. at pp. 1076-1078. There was no consideration for the contract and until the other party incurred some expense, loss, or legal obligation, it did not constitute a binding contract, but was only an offer. An offer without acceptance is not a contract. The record shows that Jas. P. Blanton died before the terms of the contract were accepted by the town of Forrest City and before that town or the manufacturing companies seeking to benefit by the contract incurred any expense, loss or legal obligations under it. This brings us to the question of whether or not his death amounted to a revocation of the subscription. It is well settled that the acceptance of a subscription is ineffectual unless made during the lifetime of the subscriber. Grand Lodge, etc. v. Farnham, 70 Cal. 158, 11 Pac. 592; Pratt v. Baptist Soc:, 93 Ill. 475, 34 Am. Rep. 187; Twenty-Third St. Baptist Church v. Cornell, 117 N. Y. 601, 23 N. E. 177, 6 L. R. A. 807; In re Helfenstein, 77 Pa. St. 328, 18 Am. Rep. 449; Elliott on Contracts, vol. 1, sec. 35, and 39 Cyc. 1189. In Pratt v. Baptist Soc., supra, the court said: “Being but an offer, and susceptible of revocation at any time before being acted upon, it must follow that the death of the promisor, before the offer is acted upon, is- a revocation of the offer. This is clearly so upon principle. The subscription or note is held to be a mere offer, until acted upon, because until then there is no mutuality. The continuance of an offer is in the nature of its constant repetition, which necessarily requires someone capable of making a repetition. Obviously this can no more be done by a dead man than a contract can, in the first instance, be made by a dead man.” So in the present case the executrix could not create a new liability where none existed before. She has no authority to bind her husband’s estate by a contract which had come to an end by his death and thereby convert an invalid promise of her testator into an enforceable liability of his estate. The contract was a one-sided one and being only an offer or promise, as has been often said, the offer or promise died when the one making it died. Counsel for defendant seek to uphold the decree upon the validity of the probate order wherein the executrix of the estate of Jas. P. Blanton, deceased, was ordered to make a deed to the Merchants & Planters Compress Company. It is claimed that the order was made pursuant to section 213 of Kirby’s Digest conferring upon probate courts the power to decree the specific performance of contracts of deceased persons for the sale of real estate in certain instances upon the petition of their executors or administrators. It is contended that the complaint in the present case is a collateral attack upon that order and is therefore unavailing to the plaintiffs. In determining the validity of a judgment upon collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter, and those quasi-jurisdictional facts, without allegation of which the court cannot properly proceed and without proof of which a decree should not be made. The absence of the former renders the judgment void upon collateral attack. Whitford v. Whitford, 100 Ark. 63. In Oliver v. Routh, 123 Ark. 189, the court said that the authority to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court by Sections 209-214 of Kirby’s Digest. Therefore it was held that the facts essential to the exercise of the special jurisdiction by the probate court must appear upon the record. The court further held that the probate court is without jurisdiction to render a judgment of specific performance of an executory contract made by the decedent to convey the homestead. The court said that the sections of the digest just referred to contemplate that there should be a valid executory contract to convey land made by the decedent before the probate court can order it to be specifically performed. The court again had occasion to consider this question in Arkansas Valley Trust Co. v. Young, 128 Ark. 42. In that case the court held that section 213 of Kirby’s Digest gives an administrator, with the approval of the probate court, authority to convey land belonging to a decedent to a third.party in pursuance of an oral agreement between decedent and the third party where the administrator is satisfied that payment has been made according to the contract. The court again recognized that the authority given under the statute was a special power to be exercised in a special manner and not according to the course of 'common law. In the present case the petition filed in the probate court sets out the written instrument under which the defendant’s claim and which‘we have copied in our statement of facts. This instrument is also recited in the judgment of the probate court as the basis of its action in authorizing and directing the executrix to make the deed and recites that it is done pursuant to the contract in question. The judgment of the probate court, also, shows that there was no acceptance, either express or implied, by Forrest City or by the Forrest City Manufacturing Company or the Merchants & Planters Compress Company prior to the death of Jas. P. Blanton. As we have already seen the contract lacked mutuality and was therefore unenforceable. The lack of jurisdictional facts appears in the probate judgment, and it is therefore void. What we have said applies with equal force to the 20 acres claimed by the Forrest City Manufacturing Company, and the same conclusion is reached as to it. It follows that the decree must be reversed and the cause remanded for further proceedings according to the principles of law and equity and not inconsistent with this opinion.