author:
PRITCHARD, Commissioner.
      EAGER, Judge

text:
    Kelsey NORMAN and Ruth Norman, Respondents, v. Maynard L. DURHAM and Mary Jo Durham, and the Carthage Loan and Investment Company, a Missouri Corporation, Appellants, The First National Bank of Kansas City, Missouri, Intervenor.
    No. 49545.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 13, 1964.

      Charles D. Tudor, and Emerson Foulke, Joplin, for respondents.
    Herbert Van Fleet, Joplin, for (defendants) appellants; Seiler, Blanchard & Van Fleet, Joplin, of counsel.
   PRITCHARD, Commissioner.

This is an action for declaratory judgment as to the rights of the parties to a joint adventure agreement, dated December 2, 1954, for the development of residential subdivisions in the southeast part of Joplin, Missouri, in which the plaintiffs sought also a direction to the trustee to whom the parties had conveyed their “pooled” real properties to reimburse them for certain developmental expenses, and ultimately for the partition of 143 lots remaining unsold in the hands of the trustee as between the parties plaintiffs and defendants. The defendants, by answer, sought a declaration of forfeiture of all of plaintiffs’ interest in said remaining lots by reason of claimed defaults in plaintiffs’ performance of the agreement as per a forfeiture provision thereof. We thus have jurisdiction of this appeal by reason of title to real estate being involved. This case comes to the writer by assignment after reargument was had upon motion for rehearing being granted. As noted below, judgment in the trial court was substantially in accordance with plaintiffs’ prayer, and defendants appeal.

The now pertinent portions of said agreement which was between L. S. Durham,, Maynard L. Durham and Mary Jo Durham, his wife, and George E. Phelps, Trustee under the will of John E. O’Keefe, deceased,, first parties, and Kelsey Norman and Ruth Norman, his wife, second parties, are to the following effect: It is first recited that the parties are owners of certain lands and that “it is deemed desirable by the parties to combine efforts to encourage development of the area by location of school, shopping center and residences on the lands owned by the parties.” By paragraph 1, first parties agreed to donate approximately 32 acres of land without charge to the School District of Joplin, in consideration of which second parties agreed to convey to first parties or to the Carthage Loan and Investment Company (trustee) certain lots in Southmorland Acres, an addition to Joplin, or in lieu thereof 20 acres of land. Second parties agreed at their expense (a) promptly to plat first parties’ land in compliance with city ordinances and to meet FHA and Veterans’ Administration requirements as far as practicable; (b) within a reasonable time to open up and gravel either Grand Avenue or Missouri Avenue from 26th Street to 20th Street; to open up 26th Street from Grand to Wisconsin Avenue, to open up Indiana Avenue to at least 28th Street; (c) as to any street which may he opened, gravel and rock piles were to be leveled and mine shafts filled to the rear line of lots adjacent to such streets; * * and (g) to open up additional blocks as soon as those already opened were substantially disposed of or as market conditions required. By paragraph 4, second parties agreed in the event that under existing ordinances or under applicable regulations of FHA or other lending agencies it was necessary to install sidewalk or curb or gutter or utilities or other improvements before the sale of lots, they would advance the sums necessary therefor but not exceeding one block at a time. Paragraph 5 provided that second parties would advance the sums necessary to satisfy special assessments for sewer, street, gutter or other improvements but only as to lots which had not been sold. In paragraph 6 it was provided that the proceeds of the sale of lots after deducting revenue stamps and the trustee’s fee should be distributed by paying first parties $200.00 per acre for streets, alleys and dedicated areas (except the high school dedication) to be allocated to lots and the balance to be first applied to reimburse second parties for expenditures in improving property, and then a division was to be made one-half to first parties and one-half to second parties.

The provision for forfeiture of plaintiffs’ rights under the agreement as relied upon by defendants first provides for notice of the violation of the agreement and for termination of the agreement if the violation is not rectified within 30 days. Then as it applies to the claimed default of plaintiffs (second parties), “the trustee shall immediately convey the property the subject of this agreement or portions thereof remaining unsold to first party, their successors and assigns, and first party their successors and assigns shall be without further obligations to second party under the provisions of this agreement.”

Mr. L. S. Durham died prior to the execution of said agreement and his interest in the property passed by survivorship to Maynard L. Durham; Mr. George E. Phelps died in 1958, and the First National Bank of Kansas City was appointed successor trustee under the will of John E. O’Keefe, deceased; and Mr. Kelsey Norman died on November 12, 1961, while this case was under advisement in the trial court, and his spouse, Mrs. Ruth Norman, became the sole plaintiff herein.

The essential findings and interlocutory decree (designated to be an appealable order by the trial court under Supreme Court Rule 82.06, V.A.M.R.) below were that the trustee, Carthage Loan and Investment Company, upon its request be relieved of all responsibilities or liabilities under said agreement, except to hold bare legal title to unsold lots of the parties in Durham Acres, and that from $35,722.00 held by it as trustee, it deduct $1,197.18 for all its compensation, including attorneys’ fees, which was allowed by the court, and which included $97.18 premium for a liability insurance policy on the property of the parties, and that the balance, $34,524.82, be paid to the Clerk of the Court to be by him held pending final disposition of the main cause of action [it being found that defendants were entitled to be reimbursed for 12.82 acres of land at $200.00 per acre pursuant to the agreement, which land had been sold to one White, or $2,564.00, it being found also that other land conveyed into the pool by defendants, the Durhams, should be likewise compensated; that Ruth Norman, as surviving joint tenant to Kelsey Norman, deceased, was entitled to $10,254.80 reimbursement for developmental expenses paid, and that she also receive one-half, or $10,853.01, and that the defendants Durham and inter-venor First National Bank of Kansas City (successor trustee as above stated) were to receive the other one-half, or $10,853.01, of the remaining cash from the trustee]. The court also ordered that partition in kind be had of the remaining unsold lots in Durham Acres: Lots 1 to 50; Lots 75 to 114; and Lots 139 to 191, all inclusive, and appointed three commissioners to set off the same, one-half in value, to each party, and allowed a lien upon the lots set off to Ruth Norman of $200.00 per acre in favor of the defendants.

In our review of this court-tried case we consider both the law and evidence, in nature de novo, but we give due deference to the trial court's findings and opportunity to observe and judge the credibility of the witnesses testifying. Supreme Court Rule 73.01(d), V.A.M.R.; Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290 [1]; Saville v. Bradshaw, Mo., 359 S.W.2d 676, 678 [2].

The evidence shows that immediately after the agreement was executed, second parties by Mr. Norman proceeded to have the entire area cleared of brush and trees, and that he at least delineated the streets (Grand Avenue, Missouri Avenue, Iowa Avenue, and the east-west 24th and 26th streets). This work was completed early in 1958. Mr. Norman claimed that Indiana Avenue on the east was at all times “passable,” with one area toward the north which was impassable in wet weather, as was 26th Street on the south side of the tract. After defendants Durhams conveyed 32 acres to the Joplin High School, the buildings thereon were built, and the school paid for grading Indiana'to the south end of its school grounds which is 24th Street. From 24th Street on to the south to 26th Street, Indiana Avenue was graded, graveled and paved by the city of Joplin, to which action Mr. Norman registered protest. Mr. Phelps, as trustee, sold to the Durhams 50 acres of land in the south portion of Durham Acres for $5,200.00, and used that money to purchase from the Durhams a one-fourth interest in the total contract. .

Mr. Norman and his wife conveyed to the trustee approximately 20 acres of land (12 lots) in Southmorland Acres, previously owned by him and which abuts Indiana Avenue on the east, north of 26th Street. In 1958, this land was sold to one Ruestman, completely unimproved other than platting, for $44,000.00, which was paid to the trustee upon its conveyance. Apparently a residue of these funds was in the trustee’s hands at the time this action was brought on February 24, 1959. Also, shortly after the agreement was executed, the Durhams conveyed their land (including that conveyed to them by George Phelps, trustee), now known as Durham Acres, to the trustee, and this tract was duly platted and the plat was accepted by the City of Joplin on October 17, 1955. On April 12, 1955, Mr. Norman and his wife made a contract with one W. A. White for the sale of lands within Durham Acres, then not platted, by distances, metes and bounds descriptions, and with no improvements thereon, which contract obligated White at his expense to bring to the grade established by the City of Joplin Missouri Avenue, East 25th Street, and to install curbs and gutters on the north side of 26th Street, the north and south lines of East 24th and 25th streets, if necessary, and the east and west lines of Missouri Avenue from 24th to 26th streets, and to install, ready for use, all sewer lines and connections required to serve all lots and necessary utilities within the land conveyed. The contract with White further provided that no conveyance would be made by the trustee until all of the specified costs were paid. White did receive deeds to this property from the trustee, a total of 48 lots in Durham Acres, and the parties divided the $24,000.00 purchase price equally without its passing through the hands of the trustee. Curiously, as the photographs taken as late as January, 1961, indicate, Mr. White had made none of the improvements specified in his contract.

On March 19, 1957, the City of Joplin was notified by letter from the State Bureau of Public Health Engineering that the Turkey Creek Sewage Treatment Plant in North Joplin was overloaded and a serious public health hazard to the community and downstream property owners; that the Shoal Creek Sewage Treatment Plant in West Joplin was nearing design capacity; that in view of the critical overload of the Turkey Creek Plant extensions of the public sewer system tributary to the plant could not be approved by the Division of Health until adequate sewage treatment facilities have been assured; and it was recommended that the City proceed at an early date with financing of the essential sewage treatment plant expansions and extensions of needed sewers to serve the entire city.

On May 14, 1957, a second election was held by which the voters in Joplin approved the issuance of bonds for expansion of the sewage treatment plants and the sewer system. Immediately thereafter permits were issued by the City for residents to attach to public sewers, and final approval was had by the Division of Health. During all of this time Mr. Norman had informed Mr. Durham that it was not possible to develop Durham Acres because sewers could not be installed, and this position was continued up lo the time the parties came to a parting ■of the ways (on February 2, 1959) and Mr. Norman stated to Mr. Durham and Mr. Peterson of the First National Bank 'that he was not obligated to install sewers, and that he did not intend and never intended to do so. Mr. Durham on February 16, 1959, issued a notice to Mr. Norman of the defaults in performance claimed by Mr. Durham to have been had, and on March 19, 1959, made demand upon the trustee to convey the remaining lots in Durham Acres to the Durhams in accordance with the forfeiture provision of the agreement. This suit was then instituted by Mr. Norman seeking a declaration of the rights of the parties to the agreement, reimbursement for his expenditures thereunder, and partition of the remaining unsold lots in Durham Acres. Essentially, we deem that this suit is one merely for termination of the joint adventure of the parties, with an accounting and a division of the property thereof, but with the added features of a requested construction of the agreement and defendants’ defense and prayer of forfeiture of plaintiffs’ rights under that provision of the agreement.

Mr. Norman’s contention at the trial was that the agreement did not obligate him to put streets in to grade (but merely to open them up so they were passable), to install curb and guttering, sewers and other improvements. At the trial, the parties were in disagreement as to what was meant by the term “open up” streets in Durham Acres. The contract does not specify who should install sewers, but only that Mr. Norman would advance necessary sums for the special assessments therefor. However this may be, Mr. Norman has himself supplied the deficiencies and resolved the ambiguities in the written agreement by his letters of October 11 and 25, 1955, to the Federal Housing Administration, in which he informed it that he had obligated himself to install sanitary sewers in the addition, to cut streets through and bring them to grade, to cover the traveled surface with four inches of gravel and to construct curbs and guttering along the streets in accordance with city ordinances. This construction of the agreement was again affirmed by Mr. Norman in his letter to Mr. Durham of October 3, 1958, almost three years later, in which he alluded to the White contract and stated to the effect that White’s obligations to cut through and bring to grade certain streets in the southern part of Durham Acres relieved Mr. Norman and his wife from doing those things. The construction by Mr. Norman as to his obligations under the agreement coincided with those of Mr. Durham and Mr. George Phelps. Ryley-Wilson Grocer Co. v. Seymour Canning Co., 129 Mo.App. 325, 108 S.W. 628, 630 [3], These admissions of Mr. Norman were against his interest and are binding upon him. Lene v. M. F. A. Mutual Insurance Co., Mo.App., 301 S.W.2d 874, 876 [2]; Lawton-Byrne-Bruner Ins. Agency Co. v. Stiers Bros. Const. Co., Mo.App., 186 S.W.2d 480, 486 [8-10]. See also Hoppock v. Gaines, Mo.App., 284 S.W. 191, 194 [7], where the court said, “It is a familiar rule of construction that, if the terms of a contract appear to be ambiguous and the parties seeking to enforce it or to recover for its breach have put a construction upon it that is inconsistent with his position in the trial and not inconsistent with a reasonable construction of its terms, he should be bound by his own construction of it.” We therefore rule that Mr. Norman did have the obligations to cut the streets to grade, install sewers, and curb and guttering (at least after the impediment was removed to the performance of all of these matters by the bond issue and subsequent permits for sewer extensions after May 14, 1957). We rule further that there was a partial failure of performance by Mr. Norman of his contractual obligations, but the more serious question and principal issue here is whether defendants are entitled to enforce the forfeiture provision of the agreement by reason of plaintiffs’ defaults.

It is well settled that forfeitures are not favored by either law or equity. Bogad v. Wachter, 365 Mo. 426, 283 S.W.2d 609, 613 [2, 3]; Cox v. Fisher, Mo., 322 S.W.2d 910, 914 [2-4]; Plymouth Securities Co. v. Johnson, Mo., 335 S.W.2d 142, 152 [7-9]. In the instant case plaintiffs, Mr. and Mrs. Norman, conveyed approximately 20 acres of land (the Ruestman tract) into the pool. This land was sold, and the residue of the sale price was in the hands of the trustee at the time suit was instituted. In addition, Mr. Norman did perform valuable services to the enterprise in procuring the location of the High School in the area so that all the properties of the parties would be enhanced in value. He procured the sale of some 48 lots within Durham Acres to White, to the benefit of all concerned, without any expenditures for improvements, for $24,000.00, which funds were divided. By these acts, despite the recalcitrancy of Mr. Norman with respect to the installation of sewers, he and Mrs. Norman acquired a vested interest in the remaining unsold lots in Durham Acres. “A forfeiture imposes a loss. The forfeiture of an estate in property means its loss without compensation. It is the taking away of some preexisting valid right. One of the reasons forfeitures are not favored is that they destroy estates. Generally, a valid estate is destroyed by forfeiture for the violation of a condition either by the omission or commission of some act.” Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d 780, 785 [17, 18]. Forfeitures cannot and should not be declared when the rights of the parties have become vested. Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S.W.2d 869, 871 [5-7]. The forfeiture provision here is not based upon a condition, but upon a promise or covenant to perform. Ordinarily, upon breach of such a covenant an action for damages therefor will lie, and if the damages should be difficult, incapable or impossible of ascertainment it is competent for the parties to stipulate for liquidated damages. Even if the provision that the trustee should convey remaining unsold lots to defendants upon plaintiffs’ violation of the agreement be treated as a provision for liquidated damages, it is not enforceable as a contract unless the property forfeited is a reasonable forecast of just compensation for the harm caused by the breach, and such harm is incapable or very difficult of accurate estimation. Williston on Contracts, 3rd Edition, §§ 769, 770; 1 Rest. Contracts, § 339; Corbin on Contracts, §§ 1057, 1059.

In Plymouth Securities Company v. Johnson, Mo., 335 S.W.2d 142, 152 [7-9], it was said, “Also if the amount or value of the property stipulated as liquidated damages for breach of contract is greatly disproportionate to the ensuing loss, the court will construe it to bé a penalty and restrict the damages recovered to those actually suffered.” See also Abrams v. St. Louis County Library Dist. Board, 364 Mo. 25, 258 S.W.2d 672, 675 [1]; Buchanan v. Louisiana Purchase Exposition Co., 245 Mo. 337, 149 S.W. 26, 29 [4], In this case the only competent evidence of the value of the remaining lots in their then condition was an appraisal made by Messrs. McAllis-ter, Richardson and Swanson, realtors, on September 19, 1958. This value was then set at $48,700.00 for the 143 remaining lots, unimproved. There is no evidence that plaintiffs’ one-half of this value, or $24,-350.00, sought by defendants to be forfeited by a conveyance to them bears any reasonable relation to the harm or damage (of which there is also no evidence) suffered by them because of Mr. Norman’s defaults in performance. For this, and the above reasons, we decline to declare the provision in the agreement for forfeiture enforceable.

Defendants’ next point is that the trial court erred in holding that they should receive $200.00 per acre only out of the land (Durham Acres) conveyed by them to the trustee, and not out of the land (Southmorland Acres) conveyed by the plaintiffs. As noted, the agreement provided that the proceeds of the sale of lots “should be distributed by paying first parties $200.00 per acre for streets, alleys and dedicated areas (except the high school dedication) to be allocated to lots, * * It is true that this provision does not exempt plaintiffs’ land specifically, nor does it refer to any land. However, the trial court properly construed this provision in his finding, “It would seem to the Court to be a rather strained construction to say that defendants were to first receive $200.00 per acre for land included in the pool by plaintiffs, while it would be only a natural construction to have a provision apply to land transferred to the pool by defendants. This would undoubtedly be for the purpose of assuring to defendants the value of the land to offset the 32 acres given to the school district. The contract "was finally consummated and executed on December 2, 1954. Plaintiffs’ Exhibit No. 42 is a letter dated October 15, 1954 from Mr. Norman to Mr. Phelps. In that letter Mr. Norman stated: ‘In my letter of August 30th I mentioned the fact that I thought you all should get $200.00 per acre for your land out of the first money received from lot sales.’ This apparently was the basis for the provision in the contract on this particular matter and the Court finds that the proper interpretation of the contract would be to allow defendants $200.00 per acre for land which they put into the pool and not for the land conveyed by plaintiffs.” The letter was admissible to explain this ambiguous provision of the agreement. We discern no error in the trial court’s finding, and this point is ruled against defendants.

Plaintiffs’ expenditures for improvements made upon Durham Acres by Mr. Norman were supported by the evidence. However, the interest allowed upon a sewer tax assessment in the amount of $81.46, for which Mr. Norman would be responsible for his delay in payment of this assessment as per his agreement, should be excluded. Exhibit 54 is a check for $228.00 for abstracts to the Ruestman tract, but Mr. Norman conceded at the trial that he was to stand all this charge except $100.00. We compute plaintiffs’ expenditures as follows:

To Freer Construction Company, clearing land and cutting through streets $ 5,142.00
To William Stewart Engineering Co., platting and surveying and photographs 3,668.00
To Koelker Engineering Co., blueprints 8.00
To Lee’s Letter Shop, abstract copies 100.00
To J. C. Bodine, air compressor and drill rental 38.95
To City of Joplin, filing plat 15.00
To Bard & Bard, sewer tax assessment 1,186.93
To O. D. Irwin, labor and material, blasting 122.46
$10,281.34

Apparently the court omitted the $100.00 abstract bill, the $8.00 blueprint bill, and the court included the $81.46 interest on the sewer tax bill, thus creating the difference in our computation from that of the court below. Because plaintiffs’ expenditures are an issue on this de novo appeal, we conclude that the correct sum thereof is $10,281.34 instead of $10,254.80 as computed by the trial court

Defendants contend that the court erred in finding that plaintiffs had an undivided one-half interest in the unsold land held by the trustee because there is nothing in the contract so providing or susceptible of such construction. We rule otherwise subject only to defendants being reimbursed at the rate of $200.00 per acre for the land they put into the pool, and the reimbursement for plaintiffs’ expenditures. After these charges upon the proceeds of the sale, the remainder was to be divided equally. Not only does the agreement so provide, but the parties so treated it. This point is ruled against defendants.

Defendants contend that plaintiffs are not entitled to partition because the agreement did not vest any “estate for life or a conditional or contingent or other estate of uncertain vesting or duration with remainder over or reversion, or an estate to commence in the future,” and that the person bringing the action “must hold an estate or interest therein carrying the right of immediate use and enjoyment of such lands.” Having conveyed the legal title to their properties to the trustee, these parties have an equitable title to the remaining unsold lots in Durham Acres, their respective interests being subject to the aforesaid charges. Under Section 528.030, RSMo 1959, V.A.M.S., partition of these equitable interests may be had. Martin v. Martin, 250 Mo. 539, 157 S.W. 575, 577 [1, 2]; Reed v. Robertson, 45 Mo. 580, 583. Phelps v. Domville, Mo., 303 S.W.2d 601, cited by defendants, is not in point on this issue because that case involved merely the right of a holder of a dower interest to bring partition which was held unauthorized under the statute. Plaintiffs asked that the interests of the parties be ascertained in the land described in the petition, and that it be partitioned in kind and if not susceptible to such partition, that it be ordered sold and the proceeds divided. Defendants and the intervenor, First National Bank of Kansas City as trustee under the will of John E. O’Keefe, pleaded the interest of that estate. These interests were found as stated by the court, and properly so, under all of the pleadings and the evidence. The trustee of .the subject land, holding bare legal title, may convey to the parties whatever lands the appointed commissioners set off to them. If it should be found that the lands are incapable of being partitioned in kind, the trustee may divest itself, under order of the court, of its bare legal title revesting the parties therewith, in order that sale may be had of the lands at public vendue.

The judgment of the trial court is modified in these respects: The clerk of the court shall pay to defendants $2,564.00 for 12.82 acres of land sold to White and to plaintiff, Mrs. Ruth Norman, $10,281.34, from the funds in his hands ($34,524.82), and the remaining amount, $21,679.48, shall be divided, one-half to plaintiff, Mrs. Ruth Norman, and one-half to defendants, Maynard L. and Mary Jo Durham, and to inter-venor, The First National Bank of Kansas City as trustee under the will of John E. O’Keefe, deceased. Otherwise the judgment is affirmed and this case is ordered remanded for entry of the above modification and for further proceedings.

BARRETT, C., not sitting.

STOCKARD, G, concurs.

STORCKMAN and LEEDY, JJ., concur.

EAGER, J., dissents in separate opinion filed.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

EAGER, Judge

(dissenting).

This litigation has had a long and tedious history and I regret the necessity of a dissent. An opinion was filed here on September 9, 1963, but thereafter a rehearing was granted. I concurred in that order, although I wrote the original opinion.

The parties seemingly agree that this is basically a law action, although counsel for plaintiffs insist that it is “sui generis”; that insistence is true, so far as it goes, but a declaratory judgment action must still sound either in law, or equity, or both.

The principal opinion, in dealing with the abhorrence of forfeitures, relies largely upon equity cases. Bogad v. Wachter, 365 Mo. 426, 283 S.W.2d 609; Plymouth Securities Company v. Johnson, Mo., 335 S.W.2d 142; Cox v. Fisher, Mo., 322 S.W.2d 910. The statement has often been made that “equity abhors a forfeiture.” On the law side the more or less equivalent question usually arises in suits for damages for breach of contract where the recovery of liquidated damages or of a penalty is sought. There it has been held that the courts will not enforce a provision for the recovery of a penalty or of punitive damages, but that they will enforce provisions for liquidated damages if the amount fixed is proportionate to the amount of damage reasonably to be contemplated. Wilt v. Waterfield, Mo., 273 S.W.2d 290; Restatement of Contracts, § 339, and comment; Buchanan v. Louisiana Purchase Exposition Co., 245 Mo. 337, 149 S.W. 26, 29; Abrams v. St. Louis Co. Library Dist. Bd., 364 Mo. 25, 258 S.W.2d 672, 675. But all such authorities recognize that if the contract provisions for damages are not enforceable, then the party against whom the default has been committed is entitled to such damages as he has actually suffered. Thus, in Wilt, supra, the Court said: “ Where the sum named in a contract to be paid in a breach is held to be a penalty and not liquidated damages, the amount of recovery is only the actual damages sustained.’ 25 C.J.S., Damages, § 116b, p. 704.”

The writer of the principal opinion has found that Mr. Norman was in default in several respects in his performance under this contract. As the writer of the original opinion, I so found, and in somewhat more detail. At this point I add the following factual comments from my construction of the record, all of which bear upon the question of damages. The defendants had contributed 58 acres to this “pool” of land, in addition to the 32 acres which they gave to the School District as a part of the consideration for this contract; Mr. Norman contributed 19.14 acres; the contract was dated December 2, 1954, and the lots which are now in question have been permitted to lie idle ever since, while surrounding areas have been substantially developed; on February 2, 1959, Mr. Norman specifically refused to do anything more under the contract. It is obvious that this Court cannot intelligently determine whether defendants have been damaged by Norman’s breach and, if so, by how much. We have been informed by plaintiffs’ counsel, strictly outside the record, of various subsequent developments and changes in the status of the property.

It adds nothing to say that Norman acquired a “vested” interest. If he did, he acquired it subject to the terms of the contract, so we are right back where we started, with the necessity of applying the applicable rules to the contract itself.

I am not fully convinced that the provision for the reconveyance of the unsold lots to defendants was wholly out of proportion to the damages to be anticipated, as the Court has now found. This should have been considered in the light of all the circumstances, including the very substantial benefits given ttp by the defendants and those acquired by Norman. However, in order to work toward some end to this tedious and perhaps unnecessary litigation, I shall concur in the holding that it constituted a penalty. But that holding does not end the difficulty. The principal opinion totally ignores the fact that defendants are entitled to a hearing and finding on the question of damages. The trial court found that there was no breach, and therefore no damages would follow. It ordered a partition and a division of the money on hand. This Court independently finds a breach (of which I have no question), ignores the question of damage suffered from the breach, and orders a partition and distribution as did the trial court upon a directly opposite finding.

I would reverse the judgment and remand the case for a full hearing on the question of damages, the ultimate judgment to conform to the principles and findings otherwise announced in the opinion.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    William D. CURE and Ernest F. Linhardt, d/b/a Cure-Linhardt Construction Company, Appellants, v. CITY OF JEFFERSON, Respondent, Schwarz & Van Hoefen, Architects, Arthur F. Schwarz and Hari Van Hoefen, Defendants.
    No. 50305.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Tweedie Fisher, Jefferson City, for appellants.
    Thomas P. Rose, Bond & Dominique, P. Pierre Dominique, John O. Bond, Jefferson. City, for respondent.
   WELBORN, Commissioner.

This is an action by the general contractors under a contract with the City of Jefferson for the contruction of a municipally owned parking facility. The petition sought recovery from the City of $62,-898.94 for the removal of rock in the excavation for the project. The architects for the facility were originally named party defendants. The trial court sustained a motion for summary judgment made by each defendant. The contractors have appealed from the judgment in favor of the City. No appeal was taken from the judgment in favor of the architects. We have jurisdiction of the appeal because of the amount in controversy.

The petition alleged that the plaintiffs, a partnership, entered into a contract, in June, 1961, with the defendant City for the construction of a parking garage for a base contract amount of $301,730.64, plus a unit price for general rock excavation and hand excavated pier rock in excess of 300 cubic feet at $2.00 per cubic foot; that the plaintiffs excavated 31,449.47 cubic feet of rock and, on October 17, 1961, submitted to the City their statement for payment in the amount of $62,989.94, which the City refused to pay. A copy of the contract between the plaintiffs and the City was incorporated by reference in the plaintiffs’ petition.

The defendant City by its answer admitted the execution of the contract, but denied generally the allegations of plaintiffs’ petition. The City also denied liability on the grounds of failure of plaintiffs to comply with provisions of the contract relating to the procedure to be followed before making a claim for extra compensation over and above the base bid and general contract sum.

After the deposition of plaintiff Cure had been taken, the City filed its motion for summary judgment, based upon the provisions of the contract as set out in the plaintiffs’ petition and statements of Cure on his deposition. The motion relied specifically upon the following provisions of the contract documents: (1) Article 3 of the basic agreement (AIA Standard Form of Agreement Between Contractor and Owner for Construction of Buildings), which read as follows:

“ARTICLE 3. THE CONTRACT SUM. The Owner shall pay the Contractor for the performance of the Contract, subject to additions and deductions provided therein, in current funds as follows: Three Hundred One Thousand Seven Hundred Thirty and 64/100 Dollars ($301,730.64), which amount has been determined as set forth in summary of costs determining the General Contract sum and attached hereto as Exhibit A; said summary being in turn determined from the bid of the General Contractor, alternates and fee for management and administration of Mechanical and Electrical Contracts, based on bid dated May 18, 1961 (attached hereto), and the following bids of Sub-Contractors, alternates, and other requirements (also attached hereto), as follows:
“Natkin & Co. — Combined bid on Bleating, Ventilating & Snow Melting and Plumbing & Drainage
“Stokes Electric Co., Inc. — Electric Work.”

(2) Section 5 of the Specifications relating to excavation, backfilling and filling (incorporated by reference as a part of the contract), which provided as follows:

“6. ITEMS OF WORK
“a) Remove existing earth, existing footings and all other items required to be removed.
“b) Do all necessary rough grading . for floors, walks, drives, etc.
“c) Include removal of 300 cubic feet of rock as a part of the base bid for excavation, backfilling and filling.
“2. (e) Material to be excavated is assumed to be earth and materials that can be removed by power shovel. If rock (as defined below) is encountered, the contract amount shall be adjusted in accordance with unit prices. ROCK shall be interpreted to mean stone, boulders, or concrete that cannot be removed by a power shovel ¡J4 cu. yd. capacity, without the use of explosives or drills. No blasting shall be done without written consent of the Owner.”

(3) The following provision of the bid form submitted by plaintiffs, likewise incorporated by reference as part of the contract:

“UNIT PRICES
“1. Excavation. Backfilling, Filling & Grading — Section 5
“a) Unit price for excavation of:
“1. Common by machine $ 1.00 per cu. yd.
“2. Common by hand $10.00 per cu. yd.
“b) Unit Price for excavation of:
“1. Rock excavation of more than 300 cu. ft.
$2.00 per cu. ft.
“2. Rock excavation of less than 300 cu. ft.
$3.00 per cu. ft.”

(4) Articles IS and 16 of the General Conditions of the Contract (AIA Standard Form), which read as follows:

“ARTICLE 15. CHANGES IN WORK. The owner, without invalidating the contract, may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.
“In giving instructions, the architect shall have authority to malee minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building, but otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance of a written order from the owner signed or countersigned by the architect, or a written order from the architect stating that the owner has authorized the extra work or change, no claim for an addition to the contract sum shall be valid unless so ordered.
“The value of any such extra work or change shall be determined in one or more of the following ways:
“a) By estimate and acceptance in a lump sum.
“b) By unit prices named in the contract or subsequently agreed upon.
“c) By cost and percentage or by cost and a fixed fee.
“If none of the above methods is agreed upon, the contractor provided he receives an order as above, shall proceed with the work. In such case and also under case (c), he shall keep and present in such form as the architect may direct, a correct account of the cost, together with vouchers. In any case, the architect shall certify to the amount, including reasonable allow-anee for overhead and profit, due to the contractor. Pending final determination of value, payments on account of changes shall be made on the architect's certificate.
“Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions.
"ARTICLE 16. CLAIMS FOR EXTRA COST. If the Contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the architect written notice thereof within a reasonable time after the receipt of such instructions, and in any event before proceeding to execute the work, except in emergency endangering life or property, and the procedure shall then be as provided for changes in the work. No such claim shall be valid unless so made.”

(5) Paragraphs 10 and 11 of the Special Conditions of the Contract, which .provide as follows:

“10. CHANGES IN THE WORK. Article IS of the ‘General Conditions’ is hereby modified. The third paragraph shall read: ‘The value of any such extra work or change shall be determined in one or the other of the following ways:
“ ‘a) By estimate and acceptance in lump sum.
“ ‘b) By unit prices named in the contract or subsequently agreed upon.
“ ‘c) By cost and percentage or by cost and a fixed fee.
‘Reasonable time’ in the fifth paragraph is hereby defined as five days.
“11. CLAIMS FOR EXTRA COST. Article 16 of the ‘General Conditions’ is hereby amended as follows: ‘A reasonable time is hereby defined as five days.’ ”

The motion further relied upon the statements of plaintiff Cure in his deposition that, at the time the rock was encountered in the excavation work, he determined that in excess of 300 cubic feet of rock would be required to be removed and that he intended to charge for the rock so removed, but that he made no request for a change-order; that the City was not informed that the alleged rock had been removed until sometime after it had been excavated; that the first written notice to the defendant City was in the form of a partial billing in the amount of $30,000; that Cure was aware of the provisions of the specifications with respect to change-orders and additions to the contract sum.

Based upon the deposition of Cure, the motion alleged that the plaintiffs failed to comply with the conditions of the contract necessary for the compensation for the removal of the alleged rock in the following respects: “(a) Plaintiffs failed to notify the defendant City within five days after acquiring knowledge of the alleged rock which was in variance with the conditions indicated by the drawings and specifications as provided by Articles 15 and 16 of the general conditions of the contract, (b) Plaintiffs failed to notify the defendant City in writing before removing said alleged rock as provided by Article 16 of the general conditions of the contract, (c) Plaintiffs failed to obtain written authority from the defendant City to remove said alleged rock as provided by Article 15 of the general conditions of the contract, (d) Plaintiffs failed to notify the defendant City that they intended to claim an additional amount, over and above the contract price for the removal of said- rock as provided by Article 16 of the general conditions of the contract”

The City moved for summary judgment on the grounds that plaintiffs’ failure to comply with the foregoing provisions of the contract precluded recovery by plaintiffs on their claim. The trial court sustained the City’s motion and entered judgment against the plaintiffs. After their motion for new trial had been overruled, plaintiffs appealed to this court.

On this appeal, the plaintiffs’ contention is stated in their “POINTS RELIED ON” as follows:

“Appellants were obligated under the contract to do all necessary work of excavation, irrespective of whether the material excavated was earth or rock, or whether the rock was more or less than 300 cubic feet. The specifications, constituting part of the contract, required the contractor to submit his bid in an amount sufficient to cover all excavation costs on the arbitrary assumption that no rock would be encountered, but nevertheless to include in the base bid the cost of 300 cubic feet of rock excavation and expressly provided that if rock was encountered, the contract amount to be paid by defendant shall be adjusted on the basis of applicable unit prices, either upward or downward, dependent upon whether the actual quantities of rock excavation was more or less than the 300 cubic feet included in the base bid. Appellants submitted their bid in accordance with the specifications whereby the cost of excavating only 300 cubic feet of rock was included, but with the express contractual agreement they would be paid for all rock excavation in excess of 300 cubic feet at the unit prices applicable to such excess by an appropriate automatic adjustment of the contract price. Inasmuch as the total material excavated pursuant to the terms of the contract included a quantity of rock substantially in excess of 300 cubic feet, appellants are entitled as of right, under the plain language of the contract to be compensated therefor by an adjustment of the contract amount made in strict accordance with the contract to include the agreed price for the rock excavation in excess of 300 cubic feet.”

They further contend that removal of rock in excess of 300 cubic feet was not extra work and that their claim for compensation was not an item of extra cost within the meaning of Articles 15 and 16 of the General Conditions of the Contract and, therefore, plaintiffs were not required to notify the City in accordance with the terms of those articles or to obtain the approval of the City before undertaking the removal of rock in excess of 300 cubic feet.

The defendants assert that the plaintiffs’ failure, admitted by Cure on his deposition, to comply with the requirements of Articles 15 and 16 of the General Conditions of the Contract precluded their recovery and that, therefore, summary judgment was properly entered.

Summary judgment is authorized where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Civil Rule 74.04(c), V.A.M.R. “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Id. 74.04(h), V.A. M.R.

In this case the motion for summary judgment is based upon the pleadings which incorporated the contract documents by reference and the admissions of plaintiff Cure on his deposition. Plaintiffs filed no affidavits in opposition to the motion. While it may have been well in this case for plaintiffs to have filed an affidavit setting forth what factual issues they contended exist in the case, their failure to do so does not require that judgment be entered against them. Rule 74.04 does not “require the grant of summary judgment in a case where such judgment is not proper even though the facts be taken as in the moving party’s affidavit. The court may deny the motion if for any reason summary judgment may he inappropriate, even though the opposite party has not submitted an affidavit.” Report of Federal Advisory Committee on Rules of Civil Procedure, as quoted in Committee Note, Missouri Civil Rule 74.04, 2 V.A.M.R., page 281. In any event, the trial court was required to determine that the defendant’s motion and supporting material showed unassailably as a matter of law that the defendant was entitled to judgment. Any doubt of such regard is resolved against the defendant. Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130.

The fact issue that may be assumed to have been resolved by Cure’s deposition was that the plaintiffs did not give the written notice or receive the written authorization which the defendant by its answer alleged was required as a condition to the plaintiffs’ recovery for the removal of the rock. However, conceding that such facts have been established, they would entitle defendant to judgment as a matter of law only if the defendant’s interpretation of the contract is also, as a matter of law, unassailable.

A motion for summary judgment, premised upon an interpretation considering only the words of the contract, may be a proper procedure in the case of a contract, the meaning of which is so apparent that it may be gleaned from the four corners of the instrument itself. Bethlehem Steel Company v. Turner Construction Company, 2 N.Y.2d 456, 141 N.E.2d 590, 63 A.L.R.2d 1331. However, the proper discharge of the judicial function in a case in which the parties to an agreement disagree as to its meaning and effect ordinarily requires something further than a mere examination and consideration of words employed in the written contract. This is implicit in the standard of interpretation found in the Restatement of the Law of Contracts (Section 230, page 310) as follows:

“The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would he attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean.”

(We are here dealing with an integration as defined by the Restatement. Id. Section 228, page 307.)

The Restatement further sets out the following rules to aid the application of the standards stated in Section 230 (Section 235, page 319) :

“(c) A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.
“(d) All circumstances accompanying the transaction may be taken into consideration, subject in case of integrations to the qualifications stated in Section 230.
“(e) If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation.”

Comment on Clause (d) of the foregoing includes the following (Id. Section 235, page 324):

“The court in interpreting words or other acts of the parties puts itself in the position which they occupied at the time the contract was made. In applying the appropriate standard of interpretation even to an agreement that on its face is free from ambiguity it is permissible to consider the situation of the parties and the accompanying circumstances at the time it was entered into — not for the purpose of modifying or enlarging or curtailing its terms, but to aid in determining the meaning to be given to the agreement.”
Professor Corbin states:
“Therefore, it is invariably necessary, before a court can give any meaning to the words of a contract and can select one meaning rather than other possible ones as the basis for the determination of rights and other legal effects, that extrinsic evidence shall be heard to make the court aware of the ‘surrounding circumstances,’ including the persons, objects, and events to which the words can be applied and which caused the words to be used.” 3 Corbin on Contracts, Section 536, page 28.

Whether or not such approach is “invariably necessary,” we do consider that in this case the court, before undertaking the interpretation of the contract, should have had the benefit of relevant evidence of the surrounding circumstances, of any applicable customs and usages of the building construction industry, of the parties’ own interpretation of the contract and any other evidence which might properly shed light upon the proper interpretation of the contract.

Admittedly, as we referred to above, plaintiffs filed no affidavit in opposition to the motion for summary judgment which indicated that they had relevant admissible evidence in such regard. However, the contract documents themselves, taken with Cure’s deposition, show that there was a question of interpretation of the contract which had to be resolved before the validity of the City’s defense in this regard could be determined. The contract documents did, as the City points out, specify a lump sum amount as the contract sum. However, this provision of the contract made the amount specified “subject to additions and deductions provided (in the contract).” The court was required to determine whether or not this language meant, as the City contends, only additions and deductions made pursuant to Articles 15 and 16 of the General Conditions or whether or not, as the plaintiffs contend, the provision of the excavation specifications that “the contract amount shall be adjusted in accordance with unit prices in the event that rock is encountered” was sufficient to authorize an addition to the contract price within the meaning of Article 3 of the contract. The specifications did call for the assumption that the material to be excavated was earth, not rock. However, the specifications further required the bidder to assume that 300 cubic feet of rock would have to be removed in the excavation and an additional 700 cubic feet of rock for the drilled piers. We have no way of knowing whether or not the test boring analyses, which were also set forth in the specifications, showed that the assumptions above referred to were based upon information which the sample drillings revealed or whether they were, as plaintiffs contend, merely an arbitrary assumption, employed in construction contracts such as this, with the parties fully aware that a much larger volume of rock would be encountered and would have to be removed. In his deposition Cure testified that he was reasonably certain, based upon the test borings, that more than 300 cubic feet of rock would have to be removed.

The General Conditions did require that the contractor give notice of conditions encountered below the ground which were at variance with the conditions indicated by the drawings and specifications. However, without some light on the information imparted by the test borings, it would be impossible to determine whether or not the conditions actually encountered were at variance with what might have been indicated by that portion of the specifications. If the test borings had indicated conditions at variance with the assumptions found elsewhere in the specifications, the question of which provision of the specifications prevailed must also have been resolved.

Similar questions are presented in the determination of whether the work in question was “extra work” within the meaning of Articles 15 and 16. “Extra work” in construction contracts has been defined as “work of a character arising outside and entirely independent of the contract — something not required in its performance, not contemplated by the parties, and not controlled by the contract.” Frank T. Hickey, Inc. v. Los Angeles Jewish Community Council, 128 Cal.App.2d 676, 276 P.2d 52, 58. See also Blair v. United States, D.C., 66 F.Supp. 405, 408; 17A C.J.S. Contracts § 371(6), page 410.

Without expressing any opinion on the proper interpretation of the contract as applied to the claim here involved, we are of the opinion that the motion for summary judgment in this case did not show that defendant was, as a matter of law, entitled to judgment. That question should be resolved only upon an interpretation of the contract in the light of the surrounding circumstances, applicable customs an'd usages, the parties’ own interpretation of the contract and other evidence bearing on the question of its meaning.

Therefore, the judgment of the trial court is reversed and the cause remanded for further proceedings.

HOUSER and HIGGINS, CC, concur.

PER CURIAM:

The foregoing opinion by WELBORN, C, is adopted as the opinion of the Court.

All of the judges concur.


author: STOCKARD, Commissioner.

text:
    Harold F. MARSHALL and Eva Marshall, Appellants, v. CITY OF GLADSTONE, Missouri, and Everett H. Smith, Paul Degenhardt, Joseph Simms, Roy L. Van Riper and Elmer Rosenbaugh, Members of the Counsel of the City of Gladstone, Missouri, Respondents.
    No. 50341.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.

      Virgil Conkling, Milton S. Broome, Conkling & Broome, Kansas City, for appellants.
    Thomas F. Eagleton, Atty. Gen., J. Gordon Siddens, Asst. Atty. Gen., Jefferson City, William W. Shinn, Mari W. Privette, Kansas City, for respondents, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   STOCKARD, Commissioner.

This is an appeal by plaintiffs from the judgment of the trial court dismissing their petition for failure to state a claim upon which relief can be granted. If this court has jurisdiction of this appeal it is only because the petition properly and sufficiently alleges facts which present an issue involving the construction of the Constitution of the United States or this state within the meaning of Section 3, of Article V, Constitution of Missouri, V.A.M.S.

Plaintiffs allege that in 1959 they were assured by the “elected and appointed” officials of the City of Gladstone that certain premises could be used for the operation thereon of a beauty shop even though the premises were located in an area zoned R-l for dwelling houses where the operation of a beauty shop was not authorized. Relying on said representations, plaintiffs purchased the property and expended money to convert it for use as a beauty shop. They have since operated a beauty shop thereon and have obtained the required annual occupational license issued by the city. In 1963 plaintiffs sought to sell the premises to another to be used as a beauty shop, and the officials of the city notified plaintiffs that the buyer “would not be licensed to operate a beauty shop on the premises unless plaintiffs undertook to rezone said premises from its present R-l or residential classification to a C-l or light commercial classification.” Plaintiffs sought to have the premises rezoned but the city council refused to do so. Plaintiffs then allege that due to the “increasingly commercial characteristics” of the premises and of the adjacent area the sale of the premises as “solely residential property” would result in the loss of “a portion of plaintiffs’ original purchase price in addition to plaintiffs’ subsequent investments to utilize such as a beauty shop.” Plaintiffs also allege that in 1959 and at present “a number of citizens of the City of Gladstone were and are operating beauty shops on residentially zoned properties by virtue of occupational licenses issued for such premises.” We note that plaintiffs do not allege that an appeal was taken from the denial by the city of their application to have the property rezoned. And they do not allege that the city has taken or threatened any -action to prevent the continued use by plaintiffs of the premises for the operation of a beauty shop.

The only allegations which purport to present a constitutional question are as follows: “That by reason of the premises and the nondeleterious effect of such use of said premises on the health, safety, morals and general welfare of the community and the other stated purposes of Ordinance 280 [the zoning ordinance], the application of said ordinance relative to such use of said premises as affected by defendants’ material representations, communicated to, believed by and acted upon by plaintiffs as aforesaid and plaintiffs’ actual change of position in reliance thereon to their real and actual damage constitutes the infliction of an unnecessary hardship on plaintiffs so unreasonable as to constitute arbitrary and capricious interference with the basic rights of private property; denial of equal protection of the laws; and confiscation of private property for public use without compensation; all in violation of the respective provisions of the Constitutions of the United States and of the State of Missouri, to wit: the 14th Amendment to the former, and Article I, Section 10 of the latter.” Plaintiffs pray for a declaration that they “may lawfully use and sell and convey said premises for continued use as a beauty shop, and that the City of Gladstone be enj oined from prohibiting “the continuing use of said premises as a beauty shop” by plaintiffs and their successors in title.

In their brief to this court plaintiffs make two contentions which they assert present a constitutional question. Those are the only ones we need consider because those not presented in a point in the brief are considered abandoned. State v. Brookshire, Mo., 325 S.W.2d 497; Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885. The two contentions are (1) that the “application of the provisions of Ordinance 280 to the use of appellants’ property as a beauty shop does not bear a substantial relation to the public health, safety, morals- or general welfare and accordingly constitutes deprival of property without due process of law in contravention of the Fourteenth Amendment of the Constitution of the United States and Article I, Section 10, of the Constitution of Missouri,” and (2) the application of the zoning ordinance to the use of only appellants’ property “while permitting and fostering all and several known identical violations constitutes a denial of equal protection of the law in contravention of the Fourteenth Amendment of the Constitution of the United States.”

“A litigant may not invoke the jurisdiction of this court by simply inserting in a pleading in the form of legal conclusions some assertions that a violation of the Constitution has occurred.” Goodson v. City of Ferguson, Mo., 339 S.W.2d 841, 845. He must allege facts which present an issue involving the construction of the Constitution of the United States or of this state within the meaning of Section 3, Article V, Constitution of Missouri. There is, in fact no allegation in the petition that plaintiffs were denied due process of law, even in the form of a legal conclusion, and a constitutional question pertaining to due process may not be injected into case for the first time in the points relied on in the brief of appellant. In any event, the point in the brief is insufficient to present an issue calling for the construction of the due process clause in either the Constitution of the United States or the Constitution of Missouri. What plaintiffs really contend is that the city erroneously refused to change the zoning of their property to permit its unlimited use for the operation of a beauty shop. It is not necessary to construe any constitutional provison to determine that issue, if it is subject to determination in this proceeding. It has repeatedly been held that from the fact an act or a judgment is erroneous it does not necessarily follow that there has been a denial of due process of law. State ex rel. Missouri-Kansas-Texas Railroad Company v. Public Service Commission, Mo., 378 S.W.2d 459, 463. We necessarily conclude that there are no allegations of fact in the petition which present an issue calling for the construction of the due process clause of either the Constitution of the United States or the constitution of this state, and that in any event the point in the brief does not present such an issue. See Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397; State ex rel. Doniphan Telephone Co. v. Public Service Commission, Mo., 369 S.W.2d 572; McClard v. Morrison, Mo., 273 S.W.2d 225.

We also conclude that there are no facts alleged in the petition presenting an issue of equal protection of law. The allegation there is nothing more than a conclusion and is not to be considered. State ex rel. Houser v. St. Louis Union Trust Co., Mo., 248 S.W.2d 592, 595; State ex rel. and to use of Smith v. Sevier, Mo., 92 S.W.2d 102; Goodson v. City of Ferguson, supra, 339 S.W.2d at p. 845. In the point in their brief plaintiffs assert that the acts of the city in permitting violations of the zoning ordinance by others while enforcing the ordinance as to them constitutes a denial of equal protection of law. It is questionable that plaintiffs may complain of this on the basis that they are being denied equal protection of law, but this is an issue we need not, and therefore do not, decide. Appellants’ complaint is not that they are being prohibited from operating their beauty shop while others are permitted to do so. Their complaint is that their prospective buyer will not be permitted to operate a beauty shop at the premises. They do not allege facts which show that the buyers of other properties being operated in violation of the zoning ordinance are permitted to continue the operation, and therefore plaintiffs do not allege any facts which if true would show that they are being subjected to a treatment different from that applied to other violators of the zoning ordinance.

We conclude that there are no allegations of fact in the petition which, if true, present any issue involving the construction of the Constitution of the United States or this state within the meaning of Section 3, of Article V of the Constitution of Missouri, and for that reason this court does not have jurisdiction of this appeal.

This case is transferred to the Kansas City Court of Appeals.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Alice N. JENKINS and Drucilla B. Henderson, Appellants, v. Randall W. MEYER, Executor of the Estate of Amanda Berndt, Deceased, the Kemper State Bank of Boonville, Missouri, and the Evangelical Church of Boonville, Missouri, Respondents.
    No. 50218.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Orr, Sapp & Woods, Edwin C. Orr, Guy V. Head, Columbia, for appellants.
    L. O. Schaumburg, Boonville, for respondent, Evangelical Church of Boonville.
    John J. Stegner, Boonville, for respondent, Randall W. Meyer, as such Executor.
   HOUSER, Commissioner.

Suit in equity by Alice N. Jenkins and Drucilla B. Henderson against Randall W. Meyer, Executor of the Estate of Amanda Berndt, Deceased, et ah, to trace funds and impress a trust upon the proceeds of five certificates issued by a building and loan association and two banks. In two of the certificates Amanda or Drucilla were named as payees and in three of them Amanda or Alice were so named. Each plaintiff, claiming separately and independently of the other, sought to establish that she was a joint tenant with the right of survivorship as to the certificates in which she was named, entitled as such to the entire proceeds as the surviving joint tenant upon the death of the cotenant, Amanda Berndt. After an extended trial the chancellor found against plaintiffs on their theory of recovery and plaintiffs have appealed from the judgment rendered against them. We have jurisdiction because the total amount of the certificates in question, including interest to the date of judgment, exceeds the sum of $15,000. Berry v. Crouse, Mo.App., 370 S.W.2d 724, and case cited.

Amanda Berndt, spinster and seamstress, lived in a large house in Boonville, took in transient roomers, and by hard work, thrift and frugality accumulated nearly thirty-four thousand dollars. Randall W. Meyer was her business adviser. For many years Drucilla B. Henderson and her daughter, Alice N. Jenkins, for brevity’s safe referred to as Drucilla and Alice, were friends and neighbors of Amanda. Dru-cilla and Alice operated a nursing home in Boonville. In July, 1959 Amanda, then nearly 85, years of age, in failing health, sold her home and on August 7, 1959 moved into the nursing home, paying Drucilla and Alice $5,000 to care for and keep her for the rest of her life. In January, 1961 Amanda was adjudged a person of unsound mind and Mr. Meyer was appointed her guardian. Among her assets were numerous building and loan certificates and bank certificates of deposit payable to Amanda and various other persons. Acting under the order of the probate court the guardian had these certificates canceled and reissued in the name of his ward, Amanda Berndt, in form payable to her alone. Amanda died November 24, 1961 at the age of 87 years, leaving no known surviving relatives. Mr. Meyer was appointed executor of her estate.

Drucilla and Alice brought this suit against the executor, each seeking recovery on the following instruments in which one or the other of them had been named as a payee prior to the order of the probate court:

Exhibit No. Date Issued by 7-14 — 1959 The Boonville Building and Loan Association Amount Payable to 5,000 Amanda Berndt or Dru-cilla B. Henderson or survivor
7-15-1959 The Boonville Build- 1,000 ing and Loan Association Amanda Berndt-or-Alice J enkins-or-survivor
8 9-12-1960 National Bank of Boonville 5,000 Amanda Berndt or Mrs. Alice N. Jenkins
11 11- 9-1960 Kemper State Bank 3,900 Amanda Berndt or Alice Jenkins, or either one of them, as joint tenants with right of survivor-ship and not as tenants in common
[ AX XX- X-XXXX ] Kemper State Bank 3,900 Amanda Berndt or Dru-cilla B. Henderson, or either one of them, as joint tenants with right of survivorship and not as tenants in common

The Evangelical Church, sole legatee and distributee under the last will and testament of Amanda, was made a party defendant, along with the executor and the financial institutions involved.

Plaintiffs called defendant Mr. Meyer to the stand, and put him on as their witness. He testified to the following facts: He attended to Amanda’s business during the latter years of her life — from the early 1950’s — investing her money at her direction, as her business agent. From July 15, 1959 he acted under a power of attorney executed by Amanda. At the beginning, when Mr. Meyer first started looking after Amanda’s affairs, she instructed him that her money was to be invested “in her name and with provisions for payment at her death. But during her lifetime, she was to have absolute control and ownership over it and receive the income from it.” She wanted to control her certificates as long as she lived. She did in fact receive the income and interest from all of the various investments made by Mr. Meyer for her, during her lifetime, no matter who else was named in the certificates as payee. All of the money invested by Mr. Meyer for Amanda was Amanda’s own individual property; none of the funds invested in the certificates naming Drucilla or Alice were contributed by them. Amanda told Mr. Meyer that she wanted to give Drucilla and Alice some money; that she wanted Drucilla to have $5,000 at her death and wanted Alice to have $1,000 at her death. Acting upon Amanda’s instructions, Mr. Meyer, secretary-treasurer of the association, caused the two building and loan investment certificates, Exhibits 3 and 4, to be issued. Later Amanda instructed Mr. Meyer to cause to be issued the two $3,-900 bank certificates of deposit naming Drucilla in one and Alice in the other, Exhibits 11 and 12. Amanda also told Mr. Meyer that she wanted him to have $6,000 at her death and pursuant to her directions he had the association issue investment certificates totaling $6,000 payable to Amanda or Randall W. Meyer, Sr., or the survivor. With reference to all of Amanda’s transactions with the building and loan association Mr. Meyer was instructed and given to understand that so long as she lived she was to have complete control over the deposits made in the building and loan association, and that she would expect to receive all the income therefrom. She did in fact receive all of the income from the building and loan investment certificates. The National Bank of Boonville certificate of deposit, Exhibit 8, was issued payable “to Amanda Berndt or Mrs. Alice N. Jenkins.” Amanda had directed Mr. Meyer to have it made out in form payable “to Amanda Berndt or Mrs. Alice N. Jenkins, or survivorIt was her intention to have the words “or survivor” added. Mr. Meyer so instructed the bank, and considered that it was so issued, but in fact and apparently by inadvertence of the bank clerk the words “or survivor” were not put in the certificate.

Once or twice Amanda asked Mr. Meyer for a statement as to what money she had and where and how it was invested. Pursuant to this request he made a typewritten statement, Exhibit 13, showing the contents of her safety deposit box, including a savings account passbook balance, the amount of cash therein, and listing all of her certificates of deposit and investment certificates, with the name of the financial institution, the amount, and the persons tcs whom they were payable. This writing, delivered to Amanda, was introduced in evidence at the trial by appellants. It listed, among others, the National Bank of Boon-ville certificate for $5,000, and stated that it was payable “to Amanda Berndt or Alice Jenkins or Survivor.” It showed a bank balance of $7,770 in her savings account and it was this cash that was used to purchase the two $3,900 certificates of deposit, Amanda having told Mr. Meyer that she would like to close out that account and put it in time deposits “so that she would get the interest off of it.” Appellants, who-did not testify because of the Dead Man’s-Statute, urge that appellants must be taken to have known that they were named in these various certificates; that Exhibit 13-must have been given to them by Amanda, because appellants produced Exhibit 13 at the trial and it was not found by the executor among Amanda’s effects. We do-not consider that these facts justify the suggested inference, and we find no substantial evidence that appellants had any knowledge, prior to Amanda’s death, of the-existence of the certificates in question or that they were named as copayees.

There is no showing that a confidential relationship existed between Amanda and appellants. Although Amanda lived in appellants’ rest home from August, 1959 and’ was physically incapacitated there is-nothing to show that appellants assisted, advised or interfered with or were consulted in connection with any of Amanda’s business affairs, or that Amanda reposed trust and confidence in appellants’ business-judgment and integrity, or that appellants attempted to or did influence Amanda with reference to the issuance or the payees to he named in any of the certificates, or that appellants during Amanda’s lifetime had in their possession any of the certificates, or attempted to exercise any control over the certificates or the funds represented thereby. It is conceded that neither of appellants received any income, interest •or dividends from any of these certificates. No separate written contracts were entered into between Amanda and the banks or building and loan association, or with appellants.

The question is whether any or all of these certificates created joint tenancies, with right of survivorship, entitling Dru-■cilla or Alice to claim the entire proceeds on the death of Amanda.

“An estate in joint tenancy is one held by two or more persons jointly, with •equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship * * *” 14 Am.Jur. Cotenancy, § 6; Longacre v. Knowles, Mo.Sup., 333 S.W.2d 67 (2), The essential elements of a joint tenancy are: (1) the cotenants must have •one and the same interest (unity of interest) ; (2) the interests must accrue by one and the same conveyance (unity of title); (3) the interests must commence at one and the same time (unity of time); and (4) the property must be held by one and the same undivided possession (unity of possession). 14 Am.Jur. Cotenancy, § 7; Longacre v. Knowles, Mo.Sup., 333 S.W.2d 67; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214. “They hold per my et per tout or, in plain language, ‘by the half and by the whole.’ ” Feltz v. Pavlik, supra, 257 S.W.2d, 1. c. 218.

The relationship created between the persons named in a joint deposit certificate depends primarily upon the intention of the depositor. 10 Am.Jur.2d Banks, § 369 ; 48 C.J.S. Joint Tenancy § 3 d; Longacre v. Knowles, supra.

Sections 362.470 and 369.150, V.A.M.S., relate to joint deposits in banks and savings and loan associations. Section 362.470, applicable to banks, provides in effect that when a deposit is made in the name of the depositor and another person and in form to be paid to either, or the survivor of them, such deposit and any additions thereto made by either of such persons, shall become the property of such persons as joint tenants and may be paid to either during the lifetime of both, or to the survivor after the death of one of them. Section 369.150 in effect provides that an account in a savings and loan association, issued in the name of two or more persons and in form to be paid to any one or more of them, or the survivor or survivors of them, and any additions thereto made by any of them, shall become the property of such persons as joint tenants; shall be held for their exclusive use, and may be paid to any person named therein, or the survivor or survivors of them.

Sections 362.470 and 369.150 uniformly have been construed to give rise to a presumption that a deposit made within their purview becomes the property of the depositors as joint tenants, and, in the absence of competent evidence to the contrary, to actually fix the ownership of the fund in the persons named as joint tenants, with the attendant right of survivorship. In re Patterson’s Estate, Mo.Sup., 348 S.W.2d 6, and six Missouri cases cited, 1. c. 8. Being only a presumption it is subject to rebuttal and may be overcome by competent evidence that it was not the intention of the depositor to create a joint tenancy. Gordon v. Erickson, 356 Mo. 272, 201 S.W.2d 404; Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957; In re Geel’s Estate, Mo.App., 143 S.W.2d 327; Ball v. Mercantile Trust Co., 220 Mo.App. 1165, 297 S.W. 415. Where the pertinent statute is not complied with, that is to say, where the form of the certificate does not come within the purview of the statute, there is no presumption of joint tenancy and the survivor has the burden of proving that the deposit was made with the intention of creating a joint tenancy. Newcombe v. Farmer, Mo.App., 360 S.W.2d 272, and cases cited, 1. c. 276; Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600, 603; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079 [3].

A joint account or deposit with right of survivorship is generally held to constitute a gift on the part of the joint depositor who contributed the money to the other depositor, — a present donation of a partial interest in the form of a right to withdraw and the right of survivorship. In re Patterson’s Estate, supra, 348 S.W.2d, 1. c. 10, and authorities cited.

We will first consider whether Exhibit 8, the certificate in which the payees were named in the alternative — the certificate issued by the National Bank of Boon-ville, payable “to Amanda Berndt or Mrs. Alice N. Jenkins” — created a joint tenancy with right of survivorship. This certificate was not in form “to be paid to either, or the survivor of them” and therefore did not comply with § 362.470, V.A.M.S., a fact conceded by appellants in oral argument. Therefore the statutory presumption that a joint tenancy was created does not arise. See Murphy v. Wolfe, supra, 45 S.W.2d, 1. c. 1081, in which the depositor used the words “payable to herself or G. N. Wolfe,” and Princeton State Bank v. Wayman, supra, 271 S.W.2d, 1. c. 603, in which the words “Coleman Wayman or Anna Wayman” were used.

No statutory presumption having arisen, the question of the ownership of the deposit must be resolved by resorting to proof of Amanda’s intention in making the certificates in the form adopted. Murphy v. Wolfe, supra.

The conclusion that a joint tenancy was created does not arise from a consideration of the evidence of surrounding circumstances. One of the essential elements of a joint tenancy, unity of interest, is lacking. The rights of the payees in a bank certificate of deposit payable in the alternative to two payees the language of which does not invest “either, or the survivor of them” with the right to the proceeds, are not governed by the statute, but by common law principles. Such an instrument, payable to A or B, “does not indicate an intent to create a unity of interest, but on the contrary it indicates an intent that the interest of one is to be to the exclusion of the other, and there is not an equal right in both to share in the enjoyment of the property. [Citation.] As stated in Hemphill v. Jackson, Mo.App., 306 S.W.2d 610, 615, ‘The word “or” is disjunctive in its very nature, and is incompatible with tenancy in common [or joint tenancy] because it infers one or the other, but not both.’ ” Longacre v. Knowles, supra, and authorities cited 333 S.W.2d, 1. c. c. 70.

Appellants stress the fact that Amanda intended to create the right of survivorship. It is true that the leading and distinctive characteristic of an estate in joint tenancy, the right of survivorship, In re Gerling’s Estate, Mo.Sup., 303 S.W.2d 915, is present in this case. The evidence shows that Amanda intended that this instrument be issued in form payable to Amanda or Alice or the survivor; that the bank was instructed by Amanda’s agent to issue it in this form, and equity should consider as done that which ought to have been done. We further believe from the evidence that Amanda had donative intent; that she intended to make a gift to Alice. But this is not the alpha and omega of the matter. The decisive factor, fatal to appellants’ contentions, is that the evidence conclusively shows that there was no completed gift; that the gift was not to take effect in praesenti, but only at the death of Amanda. Amanda intended to retain the beneficial interest in the funds represented by the certificates of deposit during her lifetime and intended that Alice take only upon Amanda’s death. A gift to take effect not during the donor’s lifetime but at the donor’s death is testamentary in character, Wahl v. Wahl, 357 Mo. 89, 206 S.W.2d 334; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, creates no present interest, and cannot form the basis of a joint tenancy. There must be an intention on the part of the depositor to give the other named person a joint interest during his life. There was no intent on Amanda’s part to give a present interest. That it was Amanda’s intention that the gift take effect at her death is established by Amanda’s declarations to Mr. Meyer that during her lifetime she was to have absolute ownership and control over the investments he made for her; that he was to invest her money “with provisions for payment at her death”; that she was to receive the income from it during her lifetime; and the lack of evidence that Alice had any knowledge of the existence of the certificate, or that Amanda intended to surrender or share control and ownership of the funds represented by the certificate with Alice during Amanda’s lifetime. Appellants cite cases for the proposition that the reservation by the donor to himself during his lifetime of the earnings thereof will not invalidate a gift. In the cited cases the evidence clearly showed the making of a completed gift — the vesting of an immediate title in the donee; an element missing here. The issuance of Exhibit 8 under these facts did not create a joint tenancy with right of survivorship, or entitle Alice to the proceeds of this certificate on the theory of a gift.

Next, we consider Exhibits 3 and 4, issued by the building and loan association, one of them payable to Amanda or Drucilla or survivor, the other payable to Amanda or Alice or survivor. Appellants contend that certificates issued in this form comply with § 369.150, V.A.M.S.; that this creates a joint tenancy; that § 369.150 does not merely raise a rebuttable presumption but specifies the estate created, is binding upon the parties, and that evidence of intention is neither necessary nor proper; that the rights of the persons named in the certificate are fixed by the statute, “and that’s it.” We disagree. A building and loan certificate which complies with § 369.150 gives rise to a presumption of joint tenancy but, as in the case of joint bank deposits under § 362.470, the presumption is rebuttable by evidence of a contrary intention, which may be gathered from the surrounding circumstances. In re Patterson’s Estate, Mo.Sup., 348 S.W.2d 6; Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957. In addition to the general considerations stated above in connection with the National Bank of Boonville certificate, which pertain with equal force to the building and loan certificates, further evidence of Amanda’s intention not to create a joint tenancy by way of an unconditional gift is to be found in her specific instructions with reference to the building and loan association that as long as she lived she was to have “complete control” over the deposits made therein and that she would expect to receive all of the income therefrom. In creating a joint account, which as we have seen is a present donation of a partial interest in the form of a right to withdraw and the right of survivorship, In re Patterson’s Estate, supra, 348 S.W.2d, 1. c. 10, the donor does not surrender all control, in view of the joint nature of the rights of the parties; but there must be a surrender of a measure of control; there must be a sharing of control, perhaps best expressed as a joint control of the account vested equally in the donor and donee. Goldston v. Randolph, 293 Mass. 253, 199 N.E. 896. There is nothing in this case to show that appellants had any right whatever to exercise or share in the exercise of any control over the investment certificates during Amanda’s lifetime. Amanda did not relinquish sole control. She made no provision to share control. Her instructions reveal the contrary intent, namely, to reserve ownership and control, as well as the beneficial interest, in herself as long as she lived. Retention of full control by the donor creating the investment account is incompatible with the concept of joint control. Nearly sixty years ago this Court said that “the retention by the deceased of the actual possession of the certificate of deposit, with the expressed intention of reserving to himself the right to collect and retain the interest accruing thereon, negatives the claim of an unconditional gift.” Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629, 635, 1 L.R.A., N.S., 790. These circumstances, added to the fact that the donees were not to receive this property until Amanda died, prevent the creation of a joint tenancy in the building and loan certificates.

The gifts sought to be made in the National Bank of Boonville certificate of deposit and the building and loan certificates are void as an effort to make a testamentary disposition without complying with § 474.320, V.A.M.S. prescribing the formalities which must be observed in the execution of wills. Appellants therefore cannot recover on the theory of joint tenancy. Nor can they prevail on the theory of contract, 10 Am.Jur.2d Banks, § 386, or trust, Masterson v. Plummer, Mo.App., 343 S.W.2d 352; 10 Am.Jur.2d Banks, § 384, because they did not proceed on these theories and for lack of evidence to support them.

Finally, what are appellants’ rights under Exhibits 11 and 12, the two certificates of deposit issued by Kemper State Bank? One was payable to Amanda or Drucilla; the other was payable to Amanda or Alice; both contained this additional language: “or either of them, as joint tenants with right of survivorship and not as tenants in common.” The circuit court ruled that as to these certificates appellants are aided by the presumption of joint tenancy, under § 362.470, V.A.M.S., and that they evidence an intent to presently create a joint tenancy. Appellants were denied full recovery as survivors, however, the circuit court holding that the joint tenancy was severed and terminated by Amanda’s adjudication as an incompetent and the subsequent actions of the probate court. The court allowed one half recovery on the theory that the severance of the joint tenancies created tenancies in common, as a result of which each of the appellants became the owner of an undivided one-half interest in the certificate in which she was named. Respondents took the position in the circuit court that no joint tenancy was created and that appellants were entitled to nothing, “not a thin dime,” but they did not appeal from the judgment awarding appellants half the proceeds of these certificates. Respondents now say that “on the record and under the authorities * * * appellants were not entitled to any recovery, but, since respondents did not appeal, the judgment of the trial court (giving appellants half a loaf) must be affirmed.” (Our parentheses.) On this appeal appellants contend that the court erred in not granting full recovery as survivors. Appellants contend that the holding of the court below finding a joint tenancy was “obviously correct” and that the statutory presumption “was not rebutted by other evidence.” Appellants then undertake to establish the proposition that the appointment of a guardian and the subsequent actions of the probate court did not effect a severance or termination of the joint tenancy. Respondents join issue thereon but we do not reach the latter question. We agree with the circuit court that these two certificates in form comply with the joint deposit statute, § 362.470, V.A.M.S.; that appellants are aided by the statutory presumption, and that standing alone they evidence an intent to presently create a joint tenancy. We do not agree with appellants or the circuit court, however, that the presumption was not rebutted. We consider that the presumption was overcome by other evidence. The circumstances indicating the intention of Amanda in the investment of her funds in these two certificates are no different from, but are the same as, the circumstances bearing on her intention with reference to the other three certificates, a fact admitted by counsel for appellants in oral argument. Except for the form of the certificates issued by Kem-per State Bank there is nothing in the evidence to sustain appellants’ burden of proving joint tenancy as to them; nothing to show any present intention to make a gift, or to relinquish sole ownership, control and beneficial interest in these funds, or to transfer to Drucilla or Alice an equal right with Amanda during her lifetime to share in the enjoyment of these funds. The evidence indicates the contrary: that these certificates, just like the others, were intended to be held by Amanda as her own, with the exclusive right to their ownership and control retained in herself during her lifetime, and that it was not intended that they become the property of the oxher payees until Amanda died. On this evidence we would be obliged to rule as an original proposition that no joint tenancy was created, and that appellants are entitled to nothing. That is not our prerogative, however, because respondents admit that not having appealed they have no right to complain of the judgment awarding appellants half the proceeds of these certificates and concede that we must affirm the judgment.

Accordingly, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl J. KUKOVICH, Appellant.
    No. 50214.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Timothy G. Noble, Special Asst. Atty. Gen., Saint Louis, Attorneys for respondent.
    Taken as submitted by appellant.
   HIGGINS, Commissioner.

Earl J. Kukovich was found guilty by a jury of manslaughter. Section 559.070, RSMo 1959, V.A.M.S. After finding that the defendant had previously been convicted and sentenced for the felony of assault with malice aforethought in accordance with Section 556.280, RSMo 1959, V.A. M.S., and as alleged in the substituted information, punishment was fixed by the trial judge at imprisonment in the penitentiary for a term of ten years. Section 559.140, RSMo 1959, V.A.M.S. Sentence and judgment followed and defendant has appealed.

The state has filed a brief but the appellant has not. In this situation the Supreme Court will review assignments of error properly preserved in the motion for new trial. State v. Parks, Mo., 331 S.W.2d 547, 549 [1].

Appellant contends by bis assignment of error numbered 8 that the trial court erred in overruling defendant’s motion for acquittal at the conclusion of the state’s case and at the conclusion of all the evidence in the case, some of which was offered by defendant. For this reason, we detail some of the events of the case.

The state called Bill Eugene Holt, an employee of the Missouri Department of Corrections, who was an eyewitness to the incident in question. He testified that on June 12, 1962, he was lining up inmates from B and C Halls to go to breakfast in the main dining room; that he knew Charles LeRoy Wilson (the deceased) and identified a photograph of him; that in the morning of June 12, 1962, he saw the defendant at the entrance to B and C Halls with his arm around the neck of Wilson, and that they were scuffling as they came down the steps; that defendant threw Wilson and Wilson got loose at the foot of the steps, at which time defendant reached in his pocket and pulled out what appeared to be a knife; that defendant “advanced forward” and stabbed Wilson in the chest and Wilson then collapsed; that Wilson appeared to be trying to ward off defendant’s attack.

Holt further testified that he took Wilson to the hospital and that he noticed blood on Wilson’s clothing on the left side of his chest; that he went back and searched the downstairs lobby and the cells in B Hall; that he found Exhibit 2, identified as a knife, underneath a radiator in B Hall lobby approximately ten feet from where the stabbing took place; that these events occurred in the penitentiary in Cole County.

Hugh W. Maxey, M.D., physician and surgeon at the Missouri State Penitentiary, testified that on June 12, 1962, he examined Wilson at about 6:30 in the morning and that Wilson died at about 7:30 that morning; that a knife wound was found in the sixth interspace near the anterior-axillary line and also a wound through the left ventricle of the heart; that the cause of death was the wound in the left chest going into the heart, and that the knife, Exhibit 2, was sufficiently long and strong to make the type of penetration found.

Appellant’s complaint that the trial court erred in overruling defendant’s motion for acquittal at the close of the state’s evidence was waived when he adduced evidence in his behalf. State v. Davis, Mo., 367 S.W.2d 517, 518 [1].

In testing the sufficiency of the evidence, the court considers the evidence and all of its reasonable inferences from a standpoint favorable to the state and disregards the evidence and inferences to the contrary. State v. Davis, supra, 367 S.W.2d 519 [2, 3], It is apparent from the foregoing recital of events that a jury in this case reasonably could have found defendant guilty of manslaughter. Section 559.070, RSMo 1959, V.A.M.S. Assignment 8 is therefore ruled against appellant.

Assignment of error numbered 1 is that the court erred in admitting incompetent, irrelevant and immaterial evidence offered by the' state over the objections of the defendant. Such an assignment, because of its lack of detail and particularity, is insufficient to preserve anything for appellate review under Supreme Court Rule 27.20, V.A.M.R. State v. Davis, Mo., supra, 367 S.W.2d 521 [12], 522.

Assignments numbered 2, 3, and 4 are likewise insufficient under said Rule 27.20, V.A.M.R. Those assignments, with authority for holding them to be insufficient, are as follows: “2. That the verdict is against the evidence and the weight thereof,” State v. Ivory, Mo., 327 S.W.2d 870, 871 [1]; “3. That the verdict of the jury was the result of bias and prejudice,” State v. McMillian, Mo., 338 S.W.2d 838, 845 [9]; and “4. That the Court erred in admitting in evidence over the objection of the Defendant, State’s Exhibits 1 and 2,” State v. Russell, Mo., 324 S.W.2d 727, 733 [14].

Assignment of error numbered S is “That the Court erred in refusing to give the Jury the same instructions given a Jury in a previous trial of the within cause, though requested by the Defendant.” The record reveals neither the request nor said instructions, and nowhere is it pointed out where such instructions would cure any supposed deficiencies. We hold therefore that this assignment is insufficient to preserve anything for review under Supreme Court Rule 27.20. State v. Pope, Mo., 364 S.W.2d 564, 567 [2, 3].

Assignment of error numbered 6 is “That the Court erred in refusing to give the Jury an instruction on self defense though such was requested by the Defendant.” Nowhere does the assignment suggest or direct our attention to any evidence requiring the court to instruct on this point, nor do we find such evidence. In State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, defendant alleged error for a refusal to instruct on self-defense. In holding that such assignment presented nothing for review, the court stated 293 S.W.2d at page 343 [15-17] : “Error is assigned on the court’s action in not instructing * * * (4) on self-defense. These assignments present nothing for review since they fail to comply with Supreme Court Rule 27.20. An assignment which merely states that the court erred in giving a particular instruction, or in refusing to give a particular instruction, or in refusing to instruct on a particular matter such as murder in the second degree have been held insufficient in not stating ‘in detail and with particularity’ the specific grounds or causes of complaint in the motion for a new trial.” Accordingly, we rule the same contention in the same way against appellant here.

Assignment of error numbered 7 is “That the Court erred in refusing to give the Jury an instruction pertaining to the violent and turbulent reputation and character of the decedent, though such was requested by the Defendant.” Again, the record reveals no request for such an instruction and this assignment also fails for failure to comply with Supreme Court Rule 27.20, V.A.M.R., for the reason that it fails to point out with any detail what supposed error would be thereby cured. State v. Pope, supra.

Under Supreme Court Rule 27.20(c), V.A.M.R., we have read and examined the entire transcript and have found no plain error affecting substantial rights.

We have also examined those matters in the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. The information is in proper form and is sufficient. The record shows that defendant was arraigned and pleaded not guilty. The verdict of the jury is in proper form and is responsive to the issues, and the punishment fixed by the trial judge is within the limits prescribed by law. Defendant had the benefit of counsel throughout his trial.

The record does not clearly show allocution, but the judgment and sentence are not thereby invalid as the defendant was heard on motion for new trial. State v. Scott, Mo., 333 S.W.2d 41, 46; Supreme Court Rule 27.10, V.A.M.R.

The judgment is affirmed.

HOUSER and WELBORN, CG, concur.

PER CURIAM.

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

All concur.