text:
    Barton F. SCHOENEMAN, Individually and d/b/a Mid West Contracting Company, Appellant, v. A. Y. McDonald manufacturing COMPANY, Appellee.
    No. 6.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 20, 1964.
    Rehearing Denied March 19,1964.
    Joe W. Matthews, Matthews & Weaver, Dallas, for appellant.
    Richard H. Hodges, Scurry, Scurry & Hodges, Dallas, for appellee.
   SELLERS, Justice.

This is an appeal from the entry of a summary judgment in the trial court in favor of the cross-defendant, A. Y. McDonald Manufacturing Company, against cross-plaintiff in the trial court, Barton F. Schoeneman, individually and doing business under the name of Mid West Contracting Company.

The cross-plaintiff in the trial court will be referred to as Mid West and the cross-defendant as McDonald.

The suit is one to recover from McDonald for the breach of contract to furnish double wrap pipe according to the contract and not single wrap as was furnished by McDonald. We quote a portion of cross-plaintiff’s pleadings:

“Now comes Barton F. Schoeneman, d/b/a Mid West Contracting Company, who resides in Dallas County, Texas, hereinafter called Mid West, who complains of A. Y. McDonald Manufacturing Company, a corporation, hereinafter called McDonald, and for cross-action or counterclaim respectfully shows to the Court:
“1. A few months prior to April 4, 1956, C. H. Leavell and Company and Dan R. Ponder, Inc., hereinafter called Leavell and Ponder, as prime contractor entered into an agreement with the United States of America for the construction of 944 units of family housing at Abilene Air Force Base, Abilene, Texas; that on or about said date of April 4, 1956, Mid West, as a subcontractor under Leavell and Ponder, prime contractor (and as authorized or permitted by the said prime contract) entered into an agreement with Leavell and Ponder whereby Mid West agreed to furnish the materials and labor necessary for installation of the exterior gas system required by the prime contract for the construction of said family housing units; that performance of Mid West’s subcontract primarily consisted of furnishing of materials and labor for installation of gas pipe of various sizes and the necessary fittings, valves and other appurtenances; that prior to the time Mid West was awarded the sub-contract for installation of the exterior gas system, McDonald submitted to Mid West a written quotation to furnish the steel pipe for use in installation of said gas system and McDonald had full notice and knowledge that the pipe it proposed to furnish was to be used only for installation of the exterior gas system required by said family housing units; that after Mid West was awarded the contract by Leavell and Ponder for installation of the said gas system, the furnishing of the necessary, fittings, valves, etc., was discussed with W. S. Hamilton, the duly authorized agent and representative of McDonald, at all times acting within the scope of his authority, and Mid West pointed out to said Hamilton that the materials described in the previous quotation did not meet the specifications applicable to the exterior gas system and it was necessary for Mid West to secure pipe which did meet the specifications applicable to the exterior gas system in order for Mid West to comply with the subcontract made with Leavell and Ponder and thereupon said Hamilton was furnished with and read a copy of the specifications applicable to the materials required for installation of the gas system and Mid West and its employees discussed such specifications and the various details of same with the said Hamilton and thereupon Hamilton on behalf of McDonald entered into an oral agreement to supply the pipe for installation of the exterior gas system and agreed that the same would be in conformity with the specifications, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof; that McDonald and its representative, Hamilton, had full notice and knowledge at all times that said pipe to be furnished for installation of the exterior gas system was to be used for the transmission of natural gas under pressure and that such substance was highly inflammable and explosive; that subsequently McDonald did supply Mid West with the quantities and sizes of pipe necessary for installation of the gas system and Mid West used the same in the installation of such gas system without knowledge or notice of any defect therein or that the pipe actually furnished by McDonald did not meet the wrapping provisions or the specifications; that at all times Mid West relied upon the previous agreement of McDonald through its agent and representative, W. S. Hamilton, that the pipe and coating thereof would be or was in conformity with the specifications; that later and along in November of 1957 the Abilene Air Force Base authorities discovered that the pipe furnished Mid West by-McDonald and installed by Mid West was not in conformity with the specifications in that such pipe had been given •only a single wrapping of coal-tar •enamel and asbestos felt whereas a ■double wrapping of these materials was required by the specifications; that with reasonable promptness Mid West notified McDonald that the pipe it had furnished for installation was not in ■conformity with the specifications.
“2. Subsequently, the Abilene Air Force Base authorities acting under the terms and provisions of the specifications, the prime contract with Leavell and Ponder and the other applicable ■contract documents, called upon prime ■contractor to remove all of the pipe installed and completely reinstall the entire gas system with pipe wrapped in accordance with the specifications and ■demanded that such be done and thereupon Leavell and Ponder made the same ■demand upon Mid West. Mid West ■duly notified McDonald of said demand ■about which McDonald did nothing and because of that failure on the part •of McDonald, Mid West and Leavell ■and Ponder worked out an arrangement with the Air Force Base authorities which was in fact a reasonable compromise whereby only service lines were to be removed and replaced with pipe wrapped in accordance with the specifications and that the gas mains were to be provided with a cathodic system for protection from corrosion arising from Electrolysis; that by vir-ture of that arrangement Mid West furnished the material, labor and other services reasonably necessary to rehabilitate the gas system while it was the obligation of McDonald to supply such material, labor and services; that following notification of Mid West by Abilene Air Force Base authorities through the prime contractor, Leavell and Ponder, that the pipe furnished by McDonald and installed by Mid West was not wrapped in accordance with the specifications, it was reasonably necessary for the protection of the inhabitants of the housing project that extended investigation and repairs be made and on account thereof Mid West incurred and paid the reasonable and necessary expenses; that in making said investigation and repairs and replacing the service lines and providing the mains with cathodic protection, Mid West reasonably and necessarily expended the sum total of $68,717.64 for labor, materials and other services as shown by statement thereof hereto attached identified as Exhibit ‘B’ and made a part hereof.
« * * *
“4. That under the oral argument made by Hamilton on behalf of McDonald, Hamilton, acting in the scope of his authority as agent and representative of McDonald, the said McDonald expressly and impliedly warranted that the pipe furnished would be in conformity with the wrapping requirements of the specifications and guaranteed such pipe against defects in the wrapping thereof for a period of one year from completion of the installation. That the defect in the wrapping as hereinbefore alleged did appear within said one year period and McDonald was duly notified thereof by Mid West; that at and before the time McDonald, through its agent and representative, Hamilton, orally agreed to furnish the pipe to Mid West, McDonald was on full notice and had full knowledge of the use intended to be made of the pipe and expressly and impliedly warranted that the pipe furnished would be reasonably suitable for the purpose; that the defect in the wrapping of said pipe was concealed or latent and not discoverable upon reasonable inspection, which was made by Mid West and persons employed by the Air Force for that purpose; that such pipe as it was furnished was not reasonably suitable for the intended purpose, but was wholly unsuitable; that on account of the breach of said warranties, express and implied, and the defective condition of the wrapping of the pipe supplied, Mid West has sustained special damages in the several amounts hereinbefore alleged.”
Sworn to by attorney for plaintiff.

In Exhibit “A,” we find the following:

“The pipe covering shall consist of a coal-tar priming coat, a coat of coal-tar enamel, a wrapper of asbestos felt, a second coat of coal-tar enamel, a second wrapper of asbestos felt, and a wrapper of kraft paper or a coat of water-resistant white-wash, applied in the order named and conforming to the requirements of American Water Works Association Standard Specification AWWA 20451 in all respects as to the materials, methods of application, tests, and handling, except that interior lining will not be required.”

McDonald answered with a number of special exceptions to Mid West’s petition, some of which were sustained by the trial court, but Mid West did not amend its petition.

McDonald also plead waiver of defects in the failure to double wrap the pipe and set up estoppel against the cross-plaintiff because the pipe was actually used.

A number of depositions were taken by the parties, and they are a part of this record.

The cross-defendant, McDonald, filed his motion for summary judgment. Paragraphs one, two, and three of said motion are as follows:

“The Cross-Plaintiff, Barton F. Schoeneman, Individually and d/b/a Mid West Contracting Company, seeks to recover upon his claim as pleaded in his Second Amended Cross Action.
“That Cross-Defendant, A. Y. McDonald Manufacturing Company, has answered herein.
“The pleadings, depositions and admissions on file show there is no genuine issue as to any material fact and that this Cross-Defendant, the moving party, is entitled to have judgment rendered in its behalf as a matter of law.”

The trial court sustained this motion and entered judgment for the cross-defendant, McDonald; and from this judgment, the cross-plaintiff has duly prosecuted this appeal.

Appellant’s first two assignments of error are as follows :

“THE TRIAL COURT ERRED IN GRANTING A SUMMARY JUDGMENT IN FAVOR OF APPELLEE IN THIS CASE AS THE PLEADINGS AND EVIDENCE REFLECT THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACTS BETWEEN THE PARTIES PRECLUDING A JUDGMENT IN FAVOR OF APPELLEE AS A MATTER OF LAW.
“THE TRIAL COURT ERRED IN GRANTING A SUMMARY JUDGMENT IN FAVOR OF APPELLEE WHEN THE PLEADINGS AND DEPOSITIONS ON FILE REFLECT (A) A CONTRACT BETWEEN APPELLANT AND AP-PELLEE, (B) A BREACH OF SAID CONTRACT BY APPELLEE, AND (C) DAMAGES SUSTAINED BY APPELLANT AS RESULT OF SAID BREACH.”

In the case of Gulbenkain et al. v. Penn, 151 Tex. 412, 252 S.W.2d 929, our Supreme Court has laid down the following rules to guide in passing on summary judgments:

“The underlying purpose of Rule of Civil Procedure authorizing summary judgment is elimination of patently un-meritorious claims or untenable defenses, and the rule is not intended to deprive litigants of their right to full hearing on merits of any real issue of fact. Rules of Civil Procedure, rule 166-A.
“The Rule of Civil Procedure authorizing summary judgment puts the burden of proving that there is no genuine issue of any material fact upon the movant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Rules of Civil Procedure, rule 166-A.”

Another rule laid down by the Supreme Court is as follows:

“When affidavits, or other summary judgment evidence, disclose facts which render position of moving party untenable, summary judgment should be denied regardless of defects which may exist in pleadings of opposite party. Rules of Civil Procedure, rule 166-A.” Womack et al. v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233.

When these rules are applied to the pleadings of appellant in this case and depositions on file, we think it must be held that there is an issue of fact as to whether McDonald agreed to deliver double wrap pipe for the job, his failure to do so, and the resulting loss to the appellant. When we look to the deposition of Marshall E. Parker, a Consulting Corrosion Engineer, with respect to the value of single wrap and double wrap pipe, he had this to say:

“ ‘Q. (By Mr. Hodges) As to the question of double wrap being more effective than single wrap, that it would last, that double wrap would last a little longer.
“ ‘In that installation out there at Abilene, that situation that you investigated, what would your comparison be, say, thirty years one wrap, forty years two wraps, or can you, with any certainty, say?
“ ‘A. You cannot define the length of a coating in terms of a certain degree of performance.
“ T would say this, suppose — let us assume that this — if you will — that this system had never been inspected and no cathodic protection system was ever installed on it.
“‘Q. Yes, sir.
“ ‘A. * * * then with the damage that was done, they would have had a catastrophic number of leaks within, say, four or five years to the point where the difference between single and double wrap on other lines would not have amounted to anything (Emphasis ours.)
“ ‘But had there been no damage on any of the lines, then — and this is a very rough estimate, but these, the comparison, the comparison of the (p. 116) two figures, I believe, is reliable — they would have, again, with single wrap and no damage, except, that is, incidental small amount of lay damage, but not this chronic damage they had here on these things, they would have begun to have leaks in the single wrap within, say, five years, and their leaks would have become serious enough to cause them some concern in ten. (Emphasis ours.)
“‘Q. Yes.
“ ‘A. * * * but with double wrap they’d begun to have leaks in eight or nine years * * * serious concern in fifteen or twenty.’ ”

Since we sustain appellant’s contention that a fact issue exists, requiring a reversal of this judgment and a remanding of the case to the trial court, we can see no worthwhile need for discussion of appellee’s contentions which seek to uphold the summary judgment upon an entirely different theory.

The judgment of the trial court is reversed and cause remanded.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    UNIVERSITY CITY, (Plaintiff) Respondent, v. Jim Joe REDWINE, (Defendant) Appellant.
    No. 31258.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.

      Leonard L. Bornschein, and Charles M. Shaw, Clayton, for appellant.
    John J. Morris, City Counsellor, and John F. Mulligan, Asst. City Counsellor, University City, for respondent.
   ANDERSON, Judge.

This is an appeal from a judgment of Division No. 3 of the Circuit Court of St. Louis County entered upon verdicts of a jury finding defendant guilty of violations of the provisions of an ordinance of University City. The prosecution originated in the Municipal Court of University City upon the filing therein of five separate in-formations charging defendant with separate offenses under said ordinance. These infractions of the law were all alleged to have occurred during fights between two groups of young men on August 10, 1961, in Heman Park in University City. Defendant was convicted in the city court on all five charges, and in due time appealed to the circuit court. The cases came on for trial in the circuit court on February 22nd, 1962, and on said date the trial court, over defendant’s obj ection, entered an order consolidating for trial all the above mentioned cases. Said causes are designated in the record as No. 243,470, a charge of peace disturbance; No. 243,493, a charge of engaging in an affray; No. 243,494, a charge of common assault; No. 243,495, a charge of peace disturbance; and No. 243,496, a charge of engaging in an affray. The trial resulted in verdicts finding defendant guilty in causes Nos. 243,493, 243,494 and 243,496, and acquittals in causes Nos. 243,470 and 243,495. The court, thereafter, in accordance with said verdicts sentenced defendant “to serve a term of thirty (30) days in the city jail of University City, Missouri, in cause No. 243,493, a term of ninety (90) days in the city jail of University City, Missouri, in cause No. 243,494, and a term of thirty (30) days in the city jail of University City, Missouri, in cause No. 243,494.

Respondent has moved to dismiss the appeal for the reason that appellant’s brief does not comply with the provisions of Rule 83.05, V.A.M.R. The brief does not contain any of the facts developed at the trial. There are twelve assignments of error under “points and authorities” and numerous abstract statements of law over which there is, and could be, no dispute. For the most part the assignments of errors are not supported by authorities, and practically all of those cited are not in point. The “Argument” is substantially a restatement of the propositions advanced under “points and authorities”. The instructions attacked are not set forth in full in the argument portion of the brief. The brief clearly does not comply with the rules, and were it not for the fact that defendant’s liberty is involved, we would dismiss the appeal. For that reason the motion to dismiss the appeal will be overruled. Since there is no statement in appellant’s brief of facts which is necessary to be considered by the court in passing upon the assignments of error, we will state briefly the facts as they appear from the record. They are as follows:

On August 10, 1961, at about 10 P.M. a group of teen-aged boys were in Heman Park in University City, a public park in said city. Those present were Myron Harvey Kinberg, Larry Gould, Brad Poncher, Bernard Steinberg, and Robert Magidson. These boys had known each other since childhood and, just prior to going into the park, were on their way to their respective homes. Bernard Steinberg and Myron Kinberg were on a wrestling team and while they were proceeding home, Kinberg told Steinberg he thought he could beat him at wrestling. All of the boys then went into the park and Kinberg and Stein-berg started wrestling while the other boys watched. While thus engaged, another group of boys drove up in a car and began taunting the first group, calling them “Christ-killing Jews” and informing them that the part of the park they were in was for Gentiles only. Among the latter group was the defendant, who was their ringleader. Fights then ensued between the two groups, which was started by defendant and the group with him. After inflicting considerable injuries to the boys they were fighting, the second group left the park. There was ample evidence introduced to sustain the conviction of the charges under which defendant was tried. In fact defendant does not contend otherwise.

The first point urged is that the court erred in ordering defendant to trial when no transcript of the proceedings had in the lower court was on file in the circuit court. In support of this contention defendant cites Section 512.250 RSMo 1959, V.A.M.S. Said section relates to appeals from magistrate courts in civil cases and, of course, is not applicable for the reason that the appeal in this case was from a Municipal Court and is governed by Supreme Court Rule 37.80, V.A.M.R. Said rule provides for the filing of a duly certified transcript in the office of the circuit court within the time provided by law, together with all the original papers filed in the case. It also provides that the failure of the clerk to file such a transcript and papers within the time prescribed shall not affect the appeal. At the start of the trial, defendant’s counsel announced ready for trial; then after the order of consolidation, and after the jury panel was sworn, he moved to dismiss the case for the reason that the file before the court showed no transcript as provided by law. Later in supporting his motion he said that the applicable rule provided that the city “shall file a transcript of all the proceedings”.

We construe said objection and his statement in connection therewith as amounting to an admission that a transcript was filed, but that the file then before the court did not show it was filed according to law, and that it did not contain all of the proceedings below. The objection did not specify in what respect the transcript was deficient; whether it was not filed in time; whether some of the documents called for in the rule were omitted; or what part of the proceedings were omitted. It is unlikely that the cases would have been set for trial absent a transcript filed in the circuit court, or that each case would be given a circuit court number. Respondent’s counsel, at the time, stated that all the other papers were in the file. This statement was unchallenged. Defendant’s counsel did not show that his client was prejudiced in any way by reason of the matter complained of, either when called upon to do so by the trial court, or in this court. The court overruled defendant’s motion, pointing to the provisions of Rule 37.84, which provides that a case after an appeal from a judgment has been entered upon the docket of the circuit court, the case shall be tried and determined de novo in such court as though the case had originated there. The appeals were lodged in the circuit court since, as we have heretofore stated, the transcript here contains copies of the informations filed. There is no showing in the record before us of any prejudice to defendant for the failure of the clerk of the Municipal Court to file a transcript of the proceedings in the office of the Circuit Clerk within the time prescribed by law, or on account of any deficiency in said transcript. The point raised must be decided against appellant.

Defendant also complains that the trial court erred in ordering the consolidation for trial the five separate charges. In support of this contention it is urged that there is no provision in the rules of “Practice and Procedure in Municipal Courts” authorizing it. Defendant is in error in this respect. Rule 37.58 of said rules provide, * * * Where one defendant is charged on several counts in the same information or complaint, * * * or by separate in-formations or complaints of several offenses, arising out of the same general state of facts and circumstances, such counts or informations and complaints may be tried separately or jointly in the discretion of the court.”

It clearly appears from the record that the separate offenses charged arose out of the same general state of facts and circumstances. The cases were so nearly related in plan, purpose and time as to make it practically impossible to separate the proof thereof. It was, therefore, proper for the trial court, whose jurisdiction of the case was derivative, to consolidate for trial the separate informations providing, of course, the defendant was not confounded in his defense or otherwise prejudiced. In our judgment there was no prejudice to defendant. If the cases had been separately tried the evidence pertaining to each charge would have been admissible as to the others. Defendant has failed to point out in what respect he could have been prejudiced, nor can we think of any. In fact the procedure adopted was in the interest of both plaintiff and defendant, for it avoided unnecessary delay and expense that would have resulted in five trials instead of one. The court did not abuse its discretion in consolidating for trial the five cases.

In reaching the above decision we have not overlooked the rule established in this state, and relied on by defendant, that one cannot be convicted in the same trial for two different and distinct felonies. State v. Collins, 297 Mo. 257, 248 S.W. 599. But we have been unable to find where this rule has been applied to misdemeanors, or to a prosecution under a city ordinance, which is not a proceeding to punish for the the commission of a crime, notwithstanding the fact that on appeal to the circuit court the procedure thereafter is in accordance with the rules of criminal procedure. City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. In that case the court held that since the action was for violation of a city ordinance, it was civil in nature and for that reason the city was entitled to appeal from an adverse judgment of the circuit court as in the case of any other party. State v. Kellmann, 343 Mo. 762, 123 S.W.2d 70, was a prosecution for misdemeanors when nine charges were united in one count. The supreme court held the information bad for duplicity and affirmed the judgment quashing the information. But the court also held that the prosecution could, if it so desired, join the nine charges in one information in separate counts, and secure convictions on each count that was sustained by the proof. This, of course, could not be done if the rule in State v. Collins, supra, applied. In State v. Lief, 248 Mo. 722, l.c. 726, 154 S.W. 1133, it was held that where several misdemeanors are charged in separate counts it is within the discretion of the trial court whether the state shall be put to an election. See also State v. Kibby, 7 Mo. 317, and State v. Pigg, 85 Mo.App. 399.

It is also our view that separate informa-tions charging offenses of the character of those involved and arising out of the same general state of facts and circumstances, may, in the discretion of the court, be tried together, notwithstanding there is no statute authorizing consolidation. This appears to be the common law rule on the subject. See 23 C.J.S. Criminal Law § 931a, pp. 677-680. The court did not err in consolidating' these causes for trial.

Defendant’s next complaint is that the court erred in refusing to dismiss one of the informations charging defendant with the offense of engaging in an affray. This pertains to causes Nos. 243,493 and 243,496. Defendant relies upon Supreme Court Rule 37.29 in support of his contention. Said rule provides as follows:

“If there he at any time pending against the same defendant two informations or two complaints for the same offense, the information or complaint first filed shall he deemed to be suspended by the second information or complaint”.

There is no merit to the point urged. An examination of the two informations show that they do not charge the same offense. The information in cause No. 243,493, charges defendant with engaging in an affray centered around Robert Magid-son. The information in cause No. 243,496 charges an affray in connection with Myron Kinberg. There was sufficient evidence to support these charges. In other words, the evidence shows there were two disturbances led by defendant, one in which Robert Magidson was the principal target and the other in which Myron Kinberg was the principal target. They were closely related in point of time, but two separate offenses.

Appellant’s next complaint is that the informations filed in causes Nos. 243,493 and 243,496 do not charge an offense because they do not describe the acts complained of in the language of the ordinance. There is no merit to this contention. A prosecution for violation of a city ordinance is in the nature of a civil action. City of Clayton v. Nemours, supra; City of St. Louis v. Fitch, 353 Mo. 706, 183 S.W.2d 828; City of Cape Girardeau v. Smith, Mo.App., 61 S.W.2d 231. The same strictness in stating the offense is not required as in a criminal prosecution. City of Poplar Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11. Each information specifically advised defendant of the time and place, and the particulars in which he had violated the ordinance. It advised of the nature of the charge against him and the number of the ordinance upon which the prosecution was based. It is difficult to believe that defendant was misled as to the purpose of the prosecution, or that he has been prejudiced in any way by reason of any omission of fact that might also have been alleged. An information charging a violation of an ordinance is adequate if it gives notice of the offense and is sufficiently definite to be pleaded in bar of a subsequent prosecution. City of Poplar Bluff v. Meadows, supra. We believe the information complained of met that test.

A complaint in a prosecution for the violation of a city ordinance is ordinarily sufficient where it describes the act complained of in the language of the ordinance. City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.W. 1045. But we are unable to find any authority that it must follow the language of the ordinance. We rule the point raised against defendant.

Defendant’s next contention is that the court erred in giving the jury Instructions Nos. 3, 4, 7, 8, 9 and 10. Three of these instructions were verdict-directing instructions and three were instructions advising the jury as to the punishment the jury might assess in the event the jury found defendant guilty. Defendant’s first complaint is that the instructions did not require findings of defendant’s guilt beyond a reasonable doubt. In support of this assignment defendant has cited two cases which are not in point. There is no merit to the contention, for the reason that the court did by Instruction No. 12 require such a finding. By said instruction the court charged the jury as follows: “The Court instructs the jury that the burden is on the City of University City to prove the defendant guilty beyond a reasonable doubt, and unless it has done so, you should acquit defendant * * The instruction then defines the term “reasonable doubt.” It will thus be seen that the complaint made is frivolous. The next complaint is likewise frivolous. Said complaint is that the instructions did not inform the jury that unless they should find the facts to be (as therein hypothesized) they should acquit the defendant. It will be seen from the quoted part of Instruction No. 12 that the jury was properly instructed as to their duty to acquit, unless the jury found defendant guilty beyond a reasonable doubt.

There are other complaints directed against the instructions which we will not consider because they were not made the basis of a specific objection either at the trial or in the motion for rehearing.

Respondent’s motion to dismiss appeal overruled.

Judgment on said verdicts is affirmed.

RUDDY, P. J., and WOLFE, J., concur.


author: WOLFE, Acting Presiding Judge.

text:
    STATE of Missouri ex rel. UNIVERSITY PARK BUILDING CORPORATION, a Missouri Corporation, Relator-Appellant, v. Charles T. HENRY and A. A. Jensen, Individuals, Respondents.
    No. 31511.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.
    Rehearing Denied April 15, 1964.

      John J. Shanahan and Crowe, Schneider, Shanahan & Lebowitz, St. Louis, Levin & Weinhaus, St. Louis, for appellant.
    John J. Morris, City Counselor, City of University City, University City, for respondents.
   WOLFE, Acting Presiding Judge.

This is an action in mandamus. It was brought to compel the City Manager and the City Building Commissioner of University City to revoke a building permit that had been issued. There was a hearing and a judgment denying the writ, and the unsuccessful relator has appealed.

The relator’s petition in substance alleges that the relator owned a building on Delmar Avenue in the City of University City, and that respondent, A. A. Jensen, the Building Commissioner, issued a building permit to a corporation known as “M. D. Building, Inc.” for the construction of a building immediately adjacent to the one owned by the relator-appellant. It is alleged that the plans and specifications submitted to Jensen for the issuance of the writ do not comply with the ordinances of the City, as those ordinances relate to provisions for off-street parking. It alleges that relator’s property will suffer damage by a serious parking problem caused by the alleged failure to have sufficient off-street parking in the vicinity of the building being constructed, and it concludes with a prayer that a writ of mandamus issue to compel respondents to revoke the building permit.

After the filing of the petition the respondents were “ordered to show cause why the alternative writ should not be granted as prayed.” (Emphasis ours.) An alternative writ in mandamus is in itself an order to show cause. It commands the respondent to do the act required or to show cause why he should not do it. State ex rel. Tate v. Sevier, 334 Mo. 771, 68 S.W.2d 50, 1. c. 52. The function of the alternative writ is to give the respondent the benefit of a return and an opportunity to be heard before judgment is pronounced. 55 C.J.S. Mandamus § 312, p. 550.

No return was filed in this case, but it appears that the order to show cause was treated as an alternative writ to which a return had been made. The parties appeared and evidence was fully presented putting in issue the allegations of the petition. We shall therefore consider the matter as having been properly before the trial court.

The evidence brought out the following facts:

The relator, University Park Building Corporation, of which a physician named Robert S. Weinhaus was the President, owned a building at 7165 Delmar Boulevard in University City. It was an office building for doctors of medicine and dentistry. Next to the relator’s building there was an old building that housed a pharmacy, several retail stores, a beauty shop, and an insurance agency. No off-street parking was provided for any of the occupants or patrons of the building.

Dr. Weinhaus testified that he had heard for many months that the old building was to be wrecked and a new medical building erected on the site. He heard that Dr. Simon L. Baumgarten, one of the tenants of his building, was interested in the new project. He talked to Dr. Baumgarten and attempted to sell him the building which the relator owned. Dr. Weinhaus in his testimony referred to the building owned by the corporate relator as “my” building. He said that he offered his building to Baumgarten for what he had paid for it. He said that he made the offer because he thought that a parking problem would be created, and it would reduce the value of his building. Dr. Baumgarten apparently was not interested in buying the building, and his corporation, the M. D. Building, Inc., proceeded to erect the new building.

On November 2, 1962, a representative of the M. D. Building, Inc. notified Dr. Wein-haus that the old building adjoining his would be wrecked and requested him to take such precautions as were necessary to protect his property'. On November 9, Dr. Weinhaus received a letter from the Wid-mer Engineering Company, which was to construct the new building. This letter advised him that in about fifteen days construction would start on the new building. The letter requested him to take necessary steps to protect his retaining wall. When Dr. Weinhaus received this letter he wrote to the builder and asked for a copy of the plans for the new building. He was told by phone that he could see a copy of the plans on file in the Building Commissioner’s office.

On November 16, attorneys for Dr. Weinhaus wrote a letter to the M. D. Building, Inc., informing them that its plans did not conform with the building code as it related to parking. It stated that the M. D. Building, Inc. permit was subject to revocation and threatened “injunctive proceedings.” By November 28 the old building had been wrecked and the new one was started. This suit was filed on December 1.

Relator offered in evidence the ordinances upon which it relied. One section of the building code stated that one parking space should be provided for each three hundred feet of floor area and an additional parking space for floor area equal to 60 square feet in excess of 300 square feet or any multiple thereof. An ordinance of the zoning code provided the manner of determining the floor area of a building when off-street parking was required. The building code also provided that the parking space should be at least eight and one-half feet by twenty feet, with a vertical clearance of seven feet, exclusive of access drives or aisles, ramps, columns, or office and work areas. Plans were required to be submitted, showing parking facilities in compliance with the code, when an application for a building permit was filed. .

The plans that had been filed were introduced in evidence. One sheet of the plan had been supplemented by another, which showed the parking area. The original plan showed only the inside parking area, and the supplemental plan showed an outside parking area, part of which was on the property of the M. D. Building, Inc., and part consisted of a seven and a half foot strip from an unused alley adjoining the property. The property and the alley were in a private subdivision, and the alley was to be used by permission of the trustees of the subdivision. The trustees had also approved the building plans.

The relator called an architect, who at their request had examined the plans, and he said that the floor space reserved for parking would only accommodate 21 or 22 automobiles.

The evidence indicated that there should be provision for 25 parking spaces in order to comply with the ordinances then in force. The Building Commissioner maintained that 26 cars could be parked in the building and others on the outside lot, so as to provide a total of 28 to 30 parking spaces. In arriving at the figure for the inside parking, he said that some cars might be in the access aisles and moved about to provide ingress and egress to the parking area that they blocked. He arrived at the figure for the inside parking by dividing the area planned for that purpose by the number of square feet required. This was the manner in which he had examined all such plans submitted. There had been some changes in the plan after the permit had been issued, and the architects who testified stated that this was usual and occurs in about fifty percent of the plans of buildings erected.

The court denied the writ, holding that considerable weight should be given to the construction placed upon the code by the Building Commissioner. It denied relator’s contention that the parking space must be 170 square feet and at the same time 8i/á by 20 feet. It held this to be unduly restrictive and not within the legislative intent of the City Council, and that the dimensions of &1/2 by 20 feet were “directive and parenthetical rather than absolute and mandatory.” It held that 25 parking spaces had been provided within the building. No consideration was given to the off-site parking facilities available by the permissive use of part of the unused alley. Perhaps the court ignored this because it considered the on-site parking adequate. It may have considered the off-site parking excluded by a section of the ordinance which provides in part:

“No such off-site parking facilities shall be authorized and no zoning certificate shall be issued where the plans call for parking facilities other than on the same zoning lot, until and unless the Plan Commission has reviewed the plans and heard the applicant and made findings that the common ownership or possession of the zoning lot and the site of the parking facilities are reasonably certain to continue and that the off-site parking facilities will be maintained at all times during the life of the proposed use or building.”

The off-site parking could have been considered if the builders had “possession” of the strip in the alley. It is maintained that the builders only had permissive use, and there is no evidence except that they had permission to use a portion of the alley. The word “possession” has been discussed in 72 C.J.S., p. 233, as follows:

“It has been said that in common speech and in legal terminology no term is more ambiguous than the word ‘possession,’ whether considered in its relation to real property or personal property, and this is especially true when it occurs in statutory provisions.”

It may be that the permissive use, if the nature of the permission had been fully developed, would be sufficient “possession” to comply with the statute. We do not need to pass upon this, however, as we take the view that the relator has failed to make a case in other respects.

It has been held that a writ of mandamus issues only in a case of necessity to prevent injustice or great injury. If there is any doubt of its necessity or propriety, it will not be issued. State ex rel. Kansas City Bridge Co. v. Missouri Workmen’s Compensation Commission et al., Mo.Sup., 92 S.W.2d 624; State ex rel. Silverman v. Kirkwood, Mo.App., 230 S.W.2d 513; State of Missouri ex rel. Sho-Me Power Corporation v. Hawkins, Mo.App., 337 S.W.2d 441. One seeking the writ must allege and prove that he has a clear, unequivocal, specific right to the thing claimed. He must show himself possessed of a clear and legal right to the remedy. State ex rel. Phillip et al. v. Public School Retirement System of the City of St. Louis et al., 364 Mo. 395, 262 S.W.2d 569. The burden of proof rests upon the relator. Adair Drainage Dist. v. Quincy, O. & K. C. R. Co., 280 Mo. 244, 217 S.W. 70; State ex rel. Phillip v. Public School Retirement System, supra; State ex rel. Robert C. Reis v. Nangle, Mo.App., 349 S.W.2d 508.

Viewing the evidence in the light of the foregoing rules, it is apparent that it is deficient in several respects. According to the evidence, changes are frequently-made in plans after the building permit has been issued. Changes in the plans occur about fifty percent of the time. The very nature of checking the many details of construction to see that they conform to a comprehensive building and zoning code requires this. If, therefore, the building in question was not in proper conformity with the existing ordinances, there was no fixed duty upon the Commissioner to revoke the building permit, for he could request changes in the plan if they did not in fact meet the requirements of the ordinances. This was a discretion properly invested in him, and mandamus will not lie to compel an act when its performance is discretionary, for the relator under such circumstances cannot show that he is entitled by a clear legal right to the remedy he seeks. Mandamus does not establish a right, but enforces one that is established. State ex rel. and to Use of Crites v. Short, 351 Mo. 1013, 174 S.W.2d 821.

It should also be noted that the relator predicates its request for mandamus on the ground that it will suffer special damages by reason of the permit not being revoked, in that the value of its building will be diminished. In this respect the evidence was quite unconvincing, for it appears that parking is now provided where none was provided before. If the plaintiff’s view of the evidence were accepted, it would mean, at the most, that at times somewhere in the vicinity there might be three cars parked. How this could possibly depreciate the value of the building was not elaborated upon.

Neither was there any proof of demand upon the Building Commissioner to revoke the permit. Mandamus can enforce an existing duty. It can never be brought to enforce an anticipated omission of duty. There must, therefore, appear a refusal to act before the writ will go. State ex rel. Star Publishing Company v. Associated Press, 159 Mo. 410, 60 S.W. 91, 51 L.R.A. 151; State ex rel. Onion v. Supreme Temple Pythian Sisters et al., 227 Mo.App. 557, 54 S.W.2d 468; State ex rel. Bluford v. Canada, 348 Mo. 298, 153 S.W.2d 12. There are many exceptions to the rule requiring demand, but we do not think that the relief sought here brings it within any of those exceptions.

The writ does not issue where the right asserted is doubtful. State ex rel. Phillip v. Public School Retirement System, supra, 364 Mo. 395, 262 S.W.2d 569. The respondents’ evidence falls short of even proving a doubtful right, in view of the facts stated above. We therefore find that the trial court reached the right results in denying a peremptory writ of mandamus.

The judgment is affirmed.

ANDERSON, J., and FRANK D. CON-NETT, Jr., Special Judge, concur.

RUDDY, J., not participating.


author: WOLFE, Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. Dr. Edward Rutledge GISH, (Defendant) Appellant.
    No. 31495.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.
    Rehearing Denied April 13, 1964.

      John M. Cave, Fulton, for appellant.
    Donald E. Dalton, St. Charles, Robert Hoelscher, Pros. Attys., Warrenton, for respondent.
   WOLFE, Judge.

The defendant-appellant was charged, under Section 304.010, subsection 2(3), RSMo 1959, V.A.M.S., with driving a motor vehicle faster than 65 miles per hour over an undivided federal highway in the County of St. Charles, Missouri, between one-half hour after sunset and midnight on September 18, 1960. The case went to Warren County on a change of venue and was tried in the Circuit Court of Warren County to a jury. There was a verdict of guilty, and punishment was assessed at a fine of $100. After a motion for a new trial was overruled, defendant was granted allocution and judgment and sentence were pronounced. The defendant appeals.

The State’s evidence consisted of the testimony of the arresting officer, Missouri State Highway Patrolman Donald J. Medley. He testified that he was patrolling Highway 40-61 in St. Charles County. This is an undivided two-lane federal highway, one lane for eastbound and one lane for westbound traffic. His car was a 1960 Dodge with a calibrated-speedometer which had been checked for accuracy both before and after the occurrence here in question. By both checks it was 'accurate to the mile through speeds of 45 to 80 miles per hour.

Between eleven and twelve o’clock at night he was driving the patrol car west-wardly on Highway 40-61 in St. Charles County, when his .attention was attracted , to the defendant’s car. It was traveling ahead of him behind . a tractor-trailer, and it turned out of the westbound lane into the eastbound lane to pass the tractor-trailer ahead. The patrolman turned out in pursuit of the defendant’s car, and maintaining a fixed distance behind it he began clocking its speed. For about a mile he checked the speed of the defendant’s car, and it was traveling at 80 miles per hour. He then speeded up the patrol car, turned on a red light, and signaled the driver to go over to the shoulder of the road. He stopped behind the defendant’s car. He said that the stop was made about one-half mile east of where Highway N intersects Highway 40-61. Here he made the arrest and took the defendant to the Sheriff’s office in St. Charles.

The defendant testified on direct examination that at no time did he travel in excess of 65 miles per hour over the stretch of highway in question. He stated that the last vehicle he passed before being stopped by the officer was a cattle truck and not a tractor-trailer. He was asked on cross-examination how fast he traveled as he passed the vehicle, and -he said at least 70 miles per hour.

The first point raised by the appellant is that the court should have directed a verdict for the defendant, as the State’s evidence was not sufficient to prove the defendant guilty beyond a reasonable doubt. He contends that because of the speed and the distances testified to by the arresting officer, defendant’s car could not have been stopped by the officer at the point where the officer said it was. Counsel for the defendant cross-examined the arresting officer as to the location of various landmarks in the area of the pursuit and arrest. He elicited from the officer estimates of the distances between the landmarks. He seeks, by applying such distances to the speeds the car was traveling, to show that the arrest must have taken place one-half mile beyond the place where the officer stated that the defendant’s car was stopped by him. It is, of course, of no material significance where the arrest was made if the defendant did, in fact, exceed the speed limit. Any discrepancies as to the place where the arrest was made might possibly go to the credibility of the testimony of the officer, but whether or not he was to be believed was for the jury to determine.

The second point raised is that the court erred in permitting the State to question the defendant about his speed at a time and place different from the evidence offered by the State, “thereby permitting defendant to be cross-examined beyond the scope of his direct examination, and allowing defendant to be convicted solely on his own testimony.”

Section 546.260, RSMo 1959, V.A. M.S. provides that a defendant who testifies in his own behalf “shall be liable to cross-examination, as to any matter referred to in his examination in chief * The defendant here had testified on direct examination that he at no time exceeded a speed of 65 miles per hour after entering an area known as Dardenne Flats. On cross-examination he was asked how fast he was traveling at the time he passed the truck. He stated that he was going at least 70 miles per hour. It was the view that the officer had of the defendant passing the truck on a hill that caused him to take up the pursuit of the defendant, and it was related to the matter upon trial. The prosecution is not confined to a mere categorical review of the evidence given by defendant on direct examination. He may be examined in detail as to matters generally referred to in his examination in chief. State v. Scown, Mo.Sup., 312 S.W.2d 782; State v. Hartwell, Mo.Sup., 293 S.W.2d 313; State v. Kaufman, Mo.Sup., 254 S.W.2d 640. We find no merit in this point.

The third point raised is that the court erred in giving Instruction No. 5, which is as follows:

“The State of Missouri by information, charges the defendant, Edward Rutledge Gish, with the offense of speeding. Defendant pleads not guilty and it is upon the question of this defendant’s guilt or innocence that you are now to pass.
“If you find and believe from the facts and circumstances in evidence in this case, beyond a reasonable doubt, that the defendant Edward Rutledge Gish, on or about September 18, 1960, in the County of St. Charles, State of Missouri, did then and there wilfully and unlawfully drive and operate a motor vehicle, to-wit: a 1957 Oldsmobile Sedan, over and upon U. S. Highway #40-61, an undivided Federal Highway, faster than 65 miles per hour during the hours for which lighted lamps are required by law, that is at any time from a half hour after sunset to a half hour before sunrise, you will find the defendant guilty of speeding as charged.
“Unless you so find the facts, you will find the defendant not guilty of speeding.”

The instruction is in proper form, and the only error claimed is that there was not any evidence to support it. This we have covered in what we have heretofore said in relation to the first point raised. It follows that this point is also without merit.

The last point raised is that the court erred in failing to grant a new trial on newly discovered evidence. This neither merits nor demands our attention. The rule as to granting a new trial upon such ground is set out in State v. Jones, Mo.Sup., 221 S.W.2d 137, 1. c. 138, wherein the court said:

“This court has on different occasions approved the rules laid down in Berry v. State, 10 Ga. 511, in respect to new trials on the ground of newly discovered evidence, to wit, ‘that the evidence has come to the knowledge of the applicant since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not cumulative; fifth, the affidavit of the witness himself should be produced or his absence accounted for; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.’ ”

The motion in question was heard with great patience by the trial judge and properly overruled, for it lacked every one of the elements required for granting a new trial upon the ground stated. State v. Gish, Mo.App., 371 S.W.2d 654; State v. Page, Mo.App., 192 S.W.2d 577; State v. Gibbs, Mo.Sup., 186 S.W. 986.

There are no prejudicial errors in this record, and the judgment is affirmed.

RUDDY, P. J., and FRANK W. HAYES, Special Judge, concur.

ANDERSON, J., not participating.


author: BRADY, Commissioner.

text:
    Adolph BEXTERMUELLER and Luella Bextermueller, Plaintiffs-Respondents, v. Lambert BUSKEN and Lucy Busken, Defendants-Appellants.
    No. 31489.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.

      Niedner, Niedner & Moerschel, Paul F. Niedner, St. Charles, for appellant.
    Dalton & Dalton, Donald E. Dalton, St. Charles, for respondent.
   BRADY, Commissioner.

In this action the plaintiffs-respondents sought to recover $7,000.00 paid by them to the defendants-appellants as earnest money on an unconsummated contract of sale for the purchase of a farm. The parties will be referred to by their designation in the trial court. Plaintiffs received a jury verdict, and defendants have perfected their appeal from the judgment entered in accordance with that verdict.

The plaintiffs’ theory of recovery was based upon their contention that defendants had violated the provisions of the contract of sale with respect to a transfer of title “ * * * perfect of record and in fact * * The exact provisions of the contract with respect to this issue of title were: “The title to said property is to be perfect of record and in fact, and is to be conveyed by Warranty Deed free from liens and encumbrances, excepting such as may be noted above, * * Later in the contract the following provisions are stated: “If title be found imperfect and seller cannot perfect same in a reasonable time, the above mentioned deposit is to be refunded, together with additional amount to cover cost of examination of title, thereby releasing the purchaser therefrom. The sale under this contract is to be closed on or before January 24, 1957 and if not closed by that date, owing to the failure or neglect of the purchaser to comply with the terms herein, said deposit is to be forfeited to the seller, but for this cause the buyer shall not be released from the fulfillment of their part of this contract, if so determined by the seller. * * * ” No issue was made at the trial as to the meaning of the clause denying the buyer release from the contract “ * * * for this cause * *

The encumbrances which are noted in the foregoing provisions of the contract as permitted are set out in that portion of the contract dealing with the price of the farm and how it was to be paid. The total price was $32,500.00.which was payable as follows: “ * * * Purchaser will assume First Deed of Trust in the amount of: Twelve Thousand Seven Hundred Fifty and 00/100 Dollars with Interest 51/2% for a period of seventeen years, Sevene (sic) Hundred Fifty dollars to be paid on the principal each year. Interest and principal due on December 1st of each year. Seller will take back Second Deed of Trust of 2,750.00 with interest at the rate of 5% for a 5 year period. 300.00 to be paid each year beginning December 1st, 1958. Prepayment privilege at any date.”

The plaintiffs alleged that the defendants had violated the provisions of the contract with respect to a transfer of title because on the date of closing there were the following liens and encumbrances against the property, none of which were noted in the contract: First, a deed of trust to a Mr. and Mrs. Wesling under date of January 16, 1953, given by the defendants to secure payment of a note for $14,000.00 and payable in monthly installments of $92.40; and second, a deed of trust dated December 15, 1954, given by the defendants to a trustee for a Mr. Kummer to secure payment of a note for $2,000.00 due one year from date. The plaintiffs further alleged that defendants knew of “* * * said imperfections in title * * * ” and informed the plaintiffs of them on January 24, 1957, but neglected and refused to perfect the title “ * * * although a reasonable time, to-wit, more than thirty days, after said closing date on January 24, 1957, was allowed to lapse; * * * ” that on the 23rd of February, 1957, “ * * * Plaintiffs elected to rescind said contract and so advised Defendants, * * * ” and demanded repayment of their earnest money; and that plaintiffs had performed all the conditions on their part under the contract.

The defendants’ theory of the case was that the plaintiffs never informed them prior to the date of closing or on that date of any defects in title. Prior to the date of closing the plaintiffs had informed them that they were not going to consummate the sale because the plaintiffs no longer liked the farm but said nothing of any alleged defects in title. On the date of sale the only defects complained of, according to the defendants, were defects in the contract of sale. The defendants’ position - was that they were prepared to deliver title in accordance with provisions of the contract, because they had arranged for the deeds of trust then on the property to be released simultaneously with the closing of the sale and to be released of record immediately prior to the recording of the warranty deed from the defendants to the plaintiffs. By failing to inform them of the existence of any alleged defects in the title and what these defects were, the defendants contended the plaintiffs had failed to give them the reasonable time called for in the contract to correct these defects. The defendants’ answer also raises the defense of laches, but in view of the disposition of this appeal made herein, this matter need not be further referred to in this opinion.

The defendants state eight allegations of prejudicial error. Two of these allegations contain three and one contains four subpoints. Certain of them were not raised by defendants in their motion for new trial and will not now be considered by this court and for that reason will not herein be stated. Those allegations of prejudicial error properly preserved for our consideration deal with the trial court’s action in giving Instruction No. 1; in excluding certain evidence; in overruling defendants’ motion for new trial without notice to them and without giving them an opportunity to be heard; in refusing to grant a mistrial; and in the court’s conduct during trial. We think the defendants’ position as to the allegation of error dealing with the trial court's conduct of the trial is well taken and will accordingly limit our statement of the factual situation to that contention. The plaintiffs deny any error with respect to the conduct of this trial but place their main reliance upon the contention that even if such error was committed, it could not be prejudicial, because the error could not materially affect the merits. We will first pass upon that contention since, if it is correct, any error that may have been committed could not be prejudicial so as to require reversal. § 512.160(2), RSMo 1959, V.A.M.S. While space prevents setting them all out, a recital of only some of the events that occurred during the trial of this case will serve both as a factual basis for the allegation of error herein ruled and also illustrate why this court cannot sustain plaintiffs’ contention that any error committed could not materially affect the merits.

During his opening statement defendants’ counsel attempted to tell the jury that his evidence would show that the plaintiffs never informed the defendants that there was anything wrong with the title and, in fact, had informed the defendants that plaintiffs were not going through with the sale for other reasons. He was prevented by the court from so doing. Counsel next attempted to go into this matter when he examined Mr. Busken, who had been called by the plaintiffs as an adverse witness. Again he was prevented from doing so, and the following occurred in the presence of the jury: “BY MR. DALTON: Just a minute. I object to that, Your Honor, as calling for a statement about this contract which is in violation of the Parole Evidence Rule, and this question calls for answers which concern matters involved in this contract. It’s in violation of the Parole Evidence Rule.” The court then engaged in questioning defendants’ counsel in the hearing of the jury. During that questioning he asked counsel the following two questions: “BY THE COURT: Would not all negotiations be concluded and incorporated in the contract itself unless the contract was ambiguous?” Defendants’ counsel answered that in his opinion the Parole Evidence Rule would not apply and stated the basis for his opinion. The court then asked, again in the hearing of the jury, “BY THE COURT: But are not all negotiations terminated by the drafting of a contract to which the parties subscribe their mames ?” Defendants’ counsel answered that his position was that he could show such negotiations provided they do not contradict the contract. The court then stated, “ * * * I don’t so understand the Rule. The objection will be sustained and the answer will be stricken. The answer in the positive will be stricken.”

Counsel then asked the defendant Busken if he had informed the plaintiffs of the existence of these two deeds of trust. An objection was made and sustained, and the following offer of proof made by defendants’ counsel: “ * * * Well, I offer to prove by this witness that if he be permitted to answer the question that he would testify that he had informed Mr. Bextermueller, prior to the time of execution of this contract, that there were two deeds of trust on the property, one the Wesling Deed of Trust and the other the Kummer Deed of Trust.” Later, while Mr. Busken was still on the stand as plaintiffs’ witness, his counsel attempted to question him as to his arrangements to pay off the Kummer note and deed of trust on the day of closing and being prevented from so doing made the following offer of proof: “ * * * I would offer to prove by this witness if he were permitted to answer that this witness would state that he had instructed Mr. Kummer to be present and available at the closing of this real estate transaction on the 24th day of January, 1957, together with his deed of trust and note.”

During the cross-examination of plaintiff Bextermueller by defendants’ counsel, counsel inadvertently transposed the figures $2,750.00 with $2,000.00. There was no objection, as it was an obvious inadvertence, but the court said, “ * * * Now wait a minute, wait a minute, wait a minute. $2750.00 is not less than $2000.00. BY MR. NIEDNER: Excuse me. BY THE COURT: Now, let’s get along. BY MR. NIEDNER: Q $2000.00 is less than $2750.00. BY THE COURT: There is no connection between the two. Now let’s go on to a more pertinent matter.” (Emphasis supplied.) At another point during that cross-examination, again without any objection being made, the trial court interrupted defendants’ counsel, while he was attempting to develop his theory of defense and directed him to “* * * stay within the facts of the case and not some side issue to create an erroneous impression.” (Emphasis supplied.)

Defendants’ counsel called Mr. Wilson, the real estate agent in this transaction, as a witness and among other things was asked whether he had informed the plaintiffs that the second deed of trust was to be released prior to transfer of title to plaintiffs and where this was to be done. There was no objection, but the court stated: “* * * Now wait a minute; that hasn’t a thing to do with the deal itself. Now, lefs limit it to the transaction and not some matter of fiction. * * * ” (Emphasis supplied.) Defendants’ counsel attempted to go into the matter in another way, and again without any objection being made, the court stated: “ * * * Wait, wait, wait now, that doesn’t have a thing to do with the transaction itself, Mr. Niedner; now, let’s limit it to the transaction itself and not the recording; that’s after the deal is closed. That’s what I’m trying to say. Let’s not confuse this Jury with some collateral matter. * * *" (Emphasis supplied.) During Wilson’s testimony defendants’ counsel attempted to make an offer of proof, and the court dealt with it in this fashion: “ * * * The objection will be sustained. BY MR. NIEDNER: May I make a prof-fert, Your Honor? BY THE COURT: No, I don’t see any need to. You might say — you make your offer and I’m going to make a comment, I’ll tell you that. BY MR. NIEDNER: Well, I’ll accept the ruling of the Court then. BY THE COURT: All right.” (Emphasis supplied.) Wilson did testify that the abstract was ready for the plaintiffs and shown to them about the middle of January. It was on this occasion that he informed the plaintiffs how the Kummer Deed of Trust would be released at the date of closing. The plaintiffs then made no complaint. He also testified that he had all the statements and deeds necessary to close the sale in conformance with the contract prepared and ready for plaintiffs on the date of closing.

While Mr. Kummer, holder of the note and second deed of trust, was on the stand, the defendants’ counsel attempted to prove by his testimony that he was ready and willing to accept payment and release the second deed of trust. The following occurred: “Q Were you willing to accept payment of that note? A Yes, sir. BY MR. DALTON: I object to that, Your Honor, again as calling for a conclusion. BY THE COURT: Well, it’s immaterial. It wasn’t paid on that date. It’s immaterial. The obj ection is sustained. * * * ” (Emphasis supplied.) An offer of proof was then made and denied. That offer was as follows: “BY MR. NIEDNER: I would offer to prove by this witness, if he were permitted to answer the questions to which objections have been made and the objections have been sustained, that this witness was prepared and was ready to go to War-renton or to Wentzville or to Wentzville and then to Warrenton to deliver the deed of trust and note, the $2,000.00 second deed of trust which he held, and that it was prearranged for him to do that immediately upon call from the real estate agency; and that by prearrangement that had been taken care of and that he was in a position, prepared, willing and able to produce that deed of trust and note at the time immediately prior to the closing of that real estate transaction between the Buskens and the Bextermuellers. BY THE COURT: All right. The offer will be denied because it is the opinion of the Court that it does not constitute a proper defense to this cause, to the Plaintiffs’ cause of action.”

The witness Denny was called by the defendants in another effort to prove the plaintiffs had never informed the defendants they objected to the existence of the second deed of trust as a defect in the title. The following occurred: * * * Did he ever state, to your knowledge, any reason for his refusal to go through with this transaction relating to the title?” There was an objection which was sustained, and defendants’ counsel attempted to cover the matter by another question. Again an objection was sustained, and defendants’ counsel stated: “ * * * I’d like to make an offer of proof. BY THE COURT: That isn’t necessary, Mr. Niedner, I ruled on the question. Now, there is a proper way of proving what you want to prove and you have not done it in that manner. An offer of proof is not proper at this time, Sir" (Emphasis supplied.) The court was then asked, “BY MR. NIEDNER: If the Court please, am I denied the opportunity to make an offer of proof at this time ? ” and answered, “BY THE COURT : For the questions raised, yes, sir.”

The defendants’ witness Wesling, holder of the first deed of trust, was called and asked whether he had agreed to changing the payment schedule on that deed of trust to conform to the contract. There was no objection but the court excused the jury and delivered a stern lecture to the defendants’ counsel which included the following remarks concerning counsel’s attempts to introduce evidence supporting his theory of the case: “ * * * Now, I feel like counsel for defendants is doing it intentionally to make the Jury feel sorry for him because I rule against him and I told you so yesterday in your constant offers of proof. Now, I would like to declare a mistrial at this time and I think I’d be doing an injustice to the plaintiffs to do so. Now, now, now, I don’t know your age, Mr. Nied-ner, and it doesn’t make any difference. Apparently you’ve had several years of experience in the practice of law and if you don’t know the difference between right and wrong then you ought to have someone else in here because I think you have acted improperly throughout this trial, I think unethically you have acted. Now, I’ve been practicing law -for almost thirty-five years, and I’ve been on the Bench a number of years and I know the difference between the' right way to proceed and the wrong way to proceed and ethics require that you be honest and that you be honorable. Now, when you go into these subterfuges as to custom and all these things, and if I’m wrong why didn’t you or don’t you come up with some law this morning to show that I’m wrong.” The court continued at some length in this same vein, and at the conclusion of the remarks of the court defendants’ counsel replied, “ * * * If Your Honor please, I would like to say that — I would like to persist in attempting to persuade the Court to my view of this thing; that is my position as I advocate, and I would like to ask the Court to consider the wording of the contract in which it says that if the title is imperfect and cannot be perfected within a reasonable time — I believe, Your Honor, that would suggest to any dealer in this transaction to, the dealer to the purchasers attorney, Your Honor, that if he had a complaint concerning the title that he, in fairness, he owed a duty, Your Honor, to inform us what it was he complained about. And, I believe that any purchaser under these curcumstances ought to say this is what we don’t like, you correct this. And it is my purpose and effort to show this Jury and Your Honor that the parties did not, as a matter of fact, they attempted to conceal their reason, if they had one. And I would like to point out to the Court that how very simple, how very simple it would have been had Mr. Dalton informed anybody what his complaint was, how easily it could have been straightened up. They had, as the Court has repeatedly said, $7,000.00 to go do it with. Your Honor, does it appear logical under those circumstances that they would have forfeited this whole deal and projected themselves into this mass of litigation when they had the simplest opportunity to do it? Doesn’t it indicate to Your Honor that they didn’t, counsel, Mr. Dalton, deliberately attempted not to tell them? I think I have a right to show that, Your Honor. BY THE COURT: Mr. Niedner, if there had been a hidden defect, if there had been a dubious defect. But here, you all — everyone of your witnesses knew all about that $2,000.00 deed of trust — BY MR. NIEDNER: But, Your Honor, I have attempted to show by-three different witnesses that the holder of that deed of trust was ready, able, willing, poised and knew of the transaction whereby he was supposed to go to Warrenton and accept payment on this deed of trust and release it of record in the presence of the buyer at that time. BY THE COURT: All right. Now, you’ve got a contract that said this deal will be closed on the 24th day of January. Your parties set the time at 10:00 o’clock a. m. Now, your contract says, ‘The title to said property is to be perfect of record and in fact, * * *.’ Now, now, now, you can’t just go and draw on your imagination. ‘Title is to be perfect of record and in fact’, now, that means that deed of trust, it isn’t set out in here as the other one was, that deed of trust should have been satisfied of record and in fact and these — And you talk about money; what was the $7,000.00? Why didn’t — if your man didn’t have the money why didn’t he take $2,000.00 out of that $5,000.00 and pay that note and satisfy it of record, comply with his contract? BY MR. NIEDNER: Because he didn’t have any knowledge nor did anybody know that that’s what this whole complaint was about. BY THE COURT: Well, that’s just silly, Mr. Niedner, that’s just silly and we’re spinning our wheels. Now, if you think you’ve got reversible error why don’t you let us enter judgment for this plaintiff and get on to some more important business. I, I think this is one of the silliest lawsuits — BY MR. NIEDNER: Well, that’s for the Court to enter judgment for the plaintiffs. I can’t do that.” Later in that same discussion the following statements were made by defendants’ counsel and the court: “BY THE COURT: I’m telling you you haven’t made a lawful defense and I don’t, I don’t think you can come up with one. And I think you’re wasting your time and my time and everybody elses time in this lawsuit. BY MR. NIEDNER: Well, I knew nothing to do but persist in showing what evidence I had, Your Honor. BY THE COURT: Well, let me caution you now, Mr; Niedner. I don’t think you and I have ever met till yesterday but down our way your conduct would be considered most unethical, you would be subject to disciplinary action. .BY MR. NIEDNER: Well, Your Honor, I would like at this time to move the Court orally for a mistrial because I think the comments of this Court in the presence-of the Jury and in the absence of the Jury have so completely reflected the predisposition of the Court to the merits of this, case and have prejudiced my case before the eyes of the — BY THE COURT: If there is any prejudice done the appellate Court is going to have to say so. I’m not going to say so.” The defendants’ counsel then made the following offer of proof as to Wesling’s testimony: “* * * I would like to offer to prove by this witness, if he were permitted to answer the questions, that he would testify that he was present at the closing for the purpose of accepting; the mortgage of the Busken Farm under the exact terms as they were stated in the contract; that is, $750.00 per year in principal and instead of the monthly payment which he had theretofore been receiving from Mr. Busken, all in accordance with the request of the Bextermuellers.”

While Mrs. Busken was on the stand, the following occurred: “Q Had you ever after that time until December of 1959, at. the time that you were sued in connection with this matter, had you ever been informed by letter or by. any kind of paper or conversation that the Kummer Deed of Trust— There was no obj ection, but the court again interrupted and refused permission to go-into the matter.

Mr. Busken was called as a witness in his own case, and his counsel attempted again to go into the question of whether he had ever been informed by the plaintiffs, of what imperfections they found in the-title. There was no objection, but the-following statements were made after the-jury had been excused: “BY THE COURT: Now, Mr. Niedner, I’ve had just about all of the brain washing I’m goin” to have. I’m fining you $25.00 for contempt of court at this very moment for repeatedly asking for conclusions of witnesses; repeatedly and repeatedly. Do you understand me? Now, when we resume I want you to conduct yourself as an honorable, intelligent lawyer. Do you hear me? Now, this is the last warning I’m giving you. Do you understand me, Sir? BY MR. NIEDNER: Yes, Your Honor. BY THE COURT: Do you have any questions to ask me, Sir? BY MR. NIEDNER: Yes. I would ask, like at this time to move for a mistrial in this cause — BY THE COURT: I’m not going to penalize these plaintiffs because of your continued misconduct and unethical actions. Now, do you have anything else to say? BY MR. NIEDNER: Well, if I might — BY THE COURT: (Addressing a spectator.) And if you don’t like what I’m saying you come up and we’ll let you pay a fine as well, sir. BY MR. NIEDNER: * * * Well, I, I do, I would like to move the Court for a mistrial because I believe the Court has acquired a prejudice against the case of my ■clients and has indicated that to the Jury repeatedly in his comments. BY THE 'COURT: That is a mis-statement of the truth and I don’t care what your conclusions are. Now, if you want to make a record get the record in there and let’s get this over with. BY MR. NIEDNER: Well, I can’t ■do anything more than except to the ruling ■of the Court denying me the opportunity to state the reasons for my motion for a mistrial. BY THE COURT: All right. BY MR. NIEDNER: Now, I would suppose the Court would grant me time at the conclusion of this case to perfect the various papers that are necessary to appeal the contempt citation ? BY THE COURT: Yes, sir, we will do that too. BY MR. NIEDNER: I don’t have the where-with-all to proceed with the appellate procedure on that right now. BY THE COURT: We can appreciate that. We can understand that, Sir, yes, Sir. BY MR. NIED-NER : I don’t know what procedures should be taken but I would like to ask leave to— BY THE COURT: You’d better get ready to apply for a writ of habeas corpus. * * * ” It should again be pointed out that these excerpts are but some of the occurrences of this nature that took place during this trial.

It is to be noted that the contract here involved did not specify a time available to the defendants to correct any defects in title. Accordingly, the time available is a reasonable time under all the circumstances. St. Clair v. Hellweg, 173 Mo.App. 660, 159 S.W. 17. In that case at 1. c. [8], the court held: “We must hold that the court erred in refusing to allow the defendant to show as a defense that, had he been permitted, he could have remedied the defects complained of within a reasonable time after they were pointed out. * * * The burden will be on defendant to show that he did in fact have such perfect title, and that he could have shown the same in the abstract, had the opportunity been given him to do so. If he can make this proof, he has a complete defense to this action. If he did not have such title, or could not have shown it in the abstract within a reasonable time, then the plaintiff should prevail.”

The case of Massey v. Butts, 204 Mo.App. 55, 221 S.W. 153, is very similar to that in the case at bar in the respect that the contract in each case provides for the return of the deposit if title is found imperfect and could not be perfected within a reasonable time and in that the seller was to retain the deposit if the purchaser failed to close the sale due to no fault of the seller. In the Massey case upon the day of closing the purchaser objected to the title, refused to proceed further and demanded return of his money. This court held that the contract clearly contemplated that the purchaser should make or cause to be made an examination of the title, and if he found it imperfect, he was to allow a reasonable time for the seller to correct the defects and that absent the allowance of this reasonable opportunity to perfect the title, the buyer could not thereafter demand return of his deposit. It has also been held that where a purchaser in effect repudiates a contract "by objections to the title, where those objections are not made in good faith, he is prevented from recovery of the earnest money paid by him. In re First National Bank of Adrian (Dalton v. Cauthon), 207 Mo.App. 115, 230 S.W. 358. It is likewise held that the purchasers cannot demand return of payments made where a vendor was endeavoring to comply with the contract in all respects and had done nothing to the purchaser’s injury. Shupe v. A. J. King Realty Co., Mo.App., 29 S.W.2d 230.

The plaintiffs contended the title was imperfect in that the contract called for the payment of the Wesling deed of trust which was to be assumed by the plaintiffs in the amount of $12,750.00, at the rate of $750.00 each year on the principal whereas the abstract showed the note and deed of trust held by Wesling with the defendants was in the amount of $14,000.00 and was to be paid at a rate of $92.00 a year. It will be recalled that Wesling was asked whether he agreed to change his note and deed of trust to conform to the contract. No objection was made, but the court intervened and severely reprimanded the defendants’ counsel. Nevertheless, counsel did succeed in dictating into the record an offer of proof on this issue whereby Wesling would have testified that such was the case and that he had been requested to do so by the plaintiffs. Certainly, this is a defense to the plaintiffs’ contention the Wesling deed of trust constituted a defect in title and also went to prove defendants’ contention plaintiffs had never informed them they regarded the Wesling deed of trust as a defect in title within a reasonable time so as to allow them to correct it.

The plaintiffs also contended the Kummer deed of trust constituted a defect in title requiring return of their deposit. Offers of proof were made that both the defendant Buskcn and Kummer would have testified that the plaintiffs in fact knew of the existence of this second deed of trust; that it had never been stated as a defect on the title by the plaintiffs and that Kummer was prepared to release it simultaneously with the closing of the sale. Certainly, this evidence went to whether plaintiffs’ objections to the title were made in good faith and whether they could have been corrected, if defendants had been notified of them, within a reasonable time.

Upon reading this transcript the inescapable conclusion is that the defendants had several defenses to the plaintiffs’ cause of action and were prevented from presenting any of them by the trial court’s actions as set out herein. Accordingly, the plaintiffs’ contention that whatever error may be found cannot be prejudicial as it could not affect the merits is without merit. St. Clair v. Hellweg, supra; Massey v. Butts, supra; First National Bank of Adrian (Dalton v. Cauthon), supra; Shupe v. A. J. King Realty Co., supra.

Those interested in the rules and standards governing the proper conduct, actions and demeanor of a trial judge can read with profit Harms v. Simkin, Mo.App., 322 S.W.2d 930; Fleetwood v. Milwaukee Mechanics Ins. Co., Mo.App., 220 S.W.2d 614; and 88 C.J.S. Trial § 51, p. 137. The material from 88 C.J.S., supra, has been quoted with approval by the Supreme Court of this state in Duncan v. Pinkston, Mo., 340 S.W.2d 753. In the Pinkston case the court also set out the provisions of the Canons of Judicial Ethics adopted by the Judicial Conference of this state wherein it is said of a trial judge he should be patient and impartial; careful to avoid even a suspicion of unfairness by utterance, tone of voice or general attitude. The fact that this occurrence involved the same trial judge to whom the admonitions so plainly stated in Pinkston were directed leads us to doubt the wisdom of again repeating them.

We have carefully read the transcript of the proceedings at this trial, and we are unable to find even one instance where the defendants’ counsel was guilty of any discourtesy toward the trial court. Neither can we find any instance where he cast a slur or aspersion toward opposing counsel or the court, nor where he did anything but persevere in presenting his theory of the case as effectively as he could under the circumstances. The fact that the trial court vehemently disagreed with the defendants’ theory of the case certainly cannot be held to authorize the court to harass counsel by warning him that he * * * would be subject to disciplinary action * * *” for unethical conduct or by fining him for contempt or by threatening him with imprisonment by stating he had better get ready to present a writ of habeas corpus. We are aware that the Canons of Judicial Ethics recognize that a trial judge may properly intervene in order to prevent a waste of time, restrain improper conduct of counsel and to generally aid in the ascertainment of truth. As previously stated, this case does not involve any misconduct of counsel. Certainly, it cannot be held that to prevent the effective presentation of a legitimate defense is proper in order to prevent a waste of time, and it is obvious that the ascertainment of truth can seldom be forwarded where one side of a dispute can be only partly presented and even that part is subjected to disparagement by the trial court. While the trial court interjected himself into this trial on occasion where no objection was voiced as often, if not more often, than where his intervention was requested by the voicing of an objection, the frequency of these occurrences is not the test in determining their prejudicial effect. Even if we were to assume the trial court had a proper purpose in so acting, the manner by which he attempted to accomplish that purpose destroyed any hope of achieving a legitimate result.

It is obvious that from the beginning of the trial this judge indicated again and again to the jury that in his opinion defendants’ theory was without legal basis and a mere attempt at subterfuge. This attitude was made apparent to the jury by the questions the trial court directed to counsel in the hearing of the jury upon ruling plaintiffs’ objections to defendants’ opening statement. The very wording of those questions was to indicate clearly to the jury that defendants’ contentions were without merit regardless of what the evidence might show. Such matters should be covered out of the hearing of the jury. The trial judge did so when he directed the defendants’ counsel to go on to a “ * * * more pertinent * * * ” matter; when he directed that counsel to avoid “ * * * some side issue, to create an erroneous impression * * * ” when he directed him to limit his questioning-to the transaction “ * * * and not some-matter of fiction * * * ”; when he referred to Kummer’s testimony that he was-ready to satisfy his deed of trust as. * * * immaterial. It wasn’t paid om that date * * * ”; and when he directed' that defendants’ counsel “ * * * not-, confuse this jury with some collateral! matter * *

The exclusion of evidence cannot-be considered as an allegation of prejudicial! error by an appellate court in this state where the party offering the evidence fails, to make an offer of proof. Mo.Digest, Appeal and Error, The defendants’' counsel had to make an offer of proof in-order to perfect his record and to save that.: matter for presentation upon appeal. It. follows that if a trial court can arbitrarily-deny to counsel the right to dictate into the-record their offer of proof, he can prevent. any consideration upon appeal as to the correctness of his own ruling as to the ■ exclusion of certain evidence. It is obvious-this cannot be the law. Yet upon two occasions the trial court refused to allow defendants’ counsel to perfect his record" by making an offer of proof upon issues-material to his case.

This judgment should be reversed and. the cause remanded to the trial court with' directions to enter its order sustaining the • defendants’ motion for new trial. The ■ Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C.,. is adopted as the opinion of this..c.ourt. The: judgment is reversed and the cause remanded to the trial court with directions to enter its order sustaining the defendants’ motion for new trial.

WOLFE, Acting P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.

RUDDY, P. J., not participating.