author: McDONALD, Chief Justice.

text:
    M. E. ANDERSON, Appellant, v. L. F. CLIFTON, Appellee.
    No. 4065.
    Court of Civil Appeals of Texas. Waco.
    Nov. 21, 1962.
    Rehearing Denied Dec. 13, 1962.
    Kelley, Looney, McLean & Littleton, Ed-inburg, Carl M. Higdon, Jr., Elsa, for appellant.
    Rankin, Kern, Martinez, & de la Garza,, McAllen, for appellee.
   McDONALD, Chief Justice.

Plaintiff Clifton sued defendant Anderson for damages for breach of an oral contract of employment.

Plaintiff alleged that he and defendant entered into an oral contract to grow nursery stock, whereby defendant purchased land and seedlings and was to pay for the labor; and plaintiff was to oversee the work; and when the trees were sold, defendant would be reimbursed the amounts he put up for expenses and labor; and then plaintiff and defendant would divide the balance. Pursuant to such agreement some 60,000 orange seedlings were purchased in 1956. Plaintiff alleged that in July or August of 1957 defendant breached his contract by refusing (through his agent) to pay the labor costs during the final stage of the cultivation of the trees. As a result, plaintiff ceased work at the nursery, the trees were not marketed, and in December 1957 most of the trees were killed by a freeze.

Trial was to a jury which found:

1) Defendant failed to provide labor consisting of either men or funds, requested by plaintiff.
2) Joe Davidson refused to provide labor, consisting of either men or funds, requested by plaintiff.
3) Joe Davidson had authority from defendant to refuse to provide labor, consisting of either men or funds, requested by plaintiff.
4) Defendant’s wife did not refuse to provide labor, consisting of either men or funds, requested by plaintiff.
7) Had not the labor been refused, the trees in the nursery, planted and cared for by plaintiff, would have been ready to be transplanted into groves prior to December 12, 1957.
8) 40,000 trees would have been ready for transplanting prior to 12 December 1957.
9) There existed a market for such trees prior to 12 December 1957.
10) 11) 12) Related to the amount of damages.
13) Labor or money were not available to plaintiff subsequent to the time he quit operating the nursery.
14) The instructions given by defendant to Joe Davidson in the presence of plaintiff were not limited to his making labor and irrigation available to the nursery upon plaintiff’s request.

The trial court entered judgment for plaintiff upon the verdict for $19,350.

Defendant appeals, contending:

1) The Trial Court erred in submitting Issue 1 as it was without support in the evidence.
2) There was no evidence to support the submission or finding of Issue 3.
3) The Trial Court erred in entering judgment for breach of contract because such is not supported by the jury findings and evidence.
4) The Trial Court erred in entering judgment for plaintiff, because plaintiff failed to notify defendant of Davidson’s refusal to furnish labor and funds.
5) The Trial Court erred in permitting plaintiff to file trial amendment enlarging the period in which the breach of contract was alleged to have occurred.

Defendant’s 1st contention is that the Trial Court erred in submitting Issue 1, asserting it is without support in the evidence. The record is without dispute that defendant did not personally refuse to provide labor and funds as requested by plaintiff. However, this issue is not necessary to support the judgment rendered for plaintiff. Therefore the submission of such issue is not reversible error. 41B Tex.Jur. p. 506.

Defendant’s 2nd contention is that there is no evidence to support Issue 3, which found that defendant’s employee Joe Davidson had authority from defendant to refuse to provide labor or funds, requested by plaintiff, for the operation of the nursery; and defendant’s 3rd contention is that the breach of contract is not supported by the jury findings and the evidence.

The record reflects that defendant appointed Davidson his agent to look after and take care of the labor problem during defendant’s absence from the state, and that defendant directed plaintiff to go to Davidson to get labor or anything needed at the nursery. Defendant told Davidson in the presence of plaintiff to take care of the labor bills while he was gone from the state. A few months later, plaintiff took the weekly labor bill to Davidson for payment and Davidson refused to pay same saying “Hell, Mr. Anderson don’t need any more trees, we done dropped that deal out there and he is buying a big block of land up the river and we are going into a big cattle deal up there. I am not paying any of the bills, you have to go to his wife to get the money for the week’s work.”

Plaintiff went to defendant’s wife for the week’s payroll, who paid same, but told him she would not pay any more. Plaintiff thereafter abandoned work at the nursery and in December it froze.

As noted, Davidson had general authority to deal with the labor problems, and included in such was authority to refuse to pay for labor. Moreover, although defendant testified in the case, he made no attempt to restrict Davidson’s general authority as an agent. We think the record ample to sustain the jury’s finding, and that such findings are ample to sustain defendant’s breach of contract.

Defendant’s 4th contention is that the facts constitute plaintiff’s and defendant’s arrangement one of joint venture, and that plaintiff had the duty to advise defendant of the breach of the contract by his agent, Davidson, before seeking to hold defendant liable for such breach.

The agreement was that defendant agreed to furnish the money, and plaintiff agreed to oversee the work, on a nursery project. When the nursery stock was sold, defendant was to receive back all moneys he had advanced, and any surplus was to be divided between plaintiff and defendant. There was no agreement for plaintiff to share in any losses.

Under such agreement plaintiff was to present bills for labor and expense to Joe Davidson, who was defendant’s agent to deal with labor while defendant was out of the state, and Davidson was to pay same. Davidson refused to pay same and, as noted, it is our view he acted within the scope of his authority. Under such factual situation we do not think it was incumbent upon plaintiff to communicate with defendant, in a distant state, and advise him of Davidson’s breach of the contract.

Defendant’s last contention is that the Trial Court erred in permitting plaintiff to file a trial amendment enlarging the time of the breach. Plaintiff had alleged the breach occurred in July. The record reflected that 2 checks were actually paid by defendant for labor during the first 2 weeks in August. Plaintiff then amended and alleged the breach complained of took place in August, which the Trial Court permitted. The Trial Court did not abuse its discretion. Rule 66, Texas Rules of Civil Procedure.

Defendant’s points and contentions are overruled and the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Kenneth BOND, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, Respondent.
    No. 49030.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.

      Marvin G. Marshall and Sherman Landau,. St. Louis, for appellant.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for respondent.
   HOUSER, Commissioner.

Action in two counts for false imprisonment and malicious prosecution. Plaintiff prayed for $25,000 actual and $25,000 punitive damages in each count. This is the fourth of a series of suits of this nature reaching appellate courts, filed by various boys against Wabash Railroad, Claude I. Gabbert and John E. Murphy. See Barnard v. Wabash R. Co., 8 Cir., 208 F.2d 489; Frank v. Wabash R. Co., Mo.Sup., 295 S.W.2d 16; Manson v. Wabash R. Co., Mo.Sup., 338 S.W.2d 54. Following the suggestion of the deaths of the individual defendants the case proceeded to trial against the corporate defendant, resulting in a directed verdict for the railroad on the count for malicious prosecution and a jury verdict for the railroad on the count for false imprisonment. Plaintiff appealed from the ensuing judgment for defendant.

On May 30, 1951, after swimming at Forest Park Highlands in St. Louis and after watching a game at the baseball diamond, plaintiff and three other boys started walking home across Forest Park. Their route took them across the private right of way of the railroad, which maintained a double set of tracks through a 15-20 foot cut which runs across the northeast portion of the park. A footbridge was erected over the tracks for pedestrian traffic. Plaintiff was familiar with the park and knew the footbridge was meant for people to walk on. Instead of traveling over the footbridge provided for the purpose of crossing over the railroad right of way, or traveling over Kingshighway, which runs above the railroad right of way, plaintiff and the three boys walked onto the railroad right of way, down the embankment to the railroad tracks, and across the tracks. John Murphy and Claude Gabbert, special agents for the railroad, licensed as private watchmen, were standing on a footbridge in Forest Park some 385 feet distant from the point where the boys crossed the right of way. The boys were in full view of the special agents. The boys crossed the railroad property and got halfway up the embankment on the other side of the tracks when they observed a train approaching. As the train got to a point opposite where the boys were standing, plaintiff and the other boys all commenced throwing rocks at the train, and continued to do so until the train had passed. The boys then walked from the right of way into the park area. Murphy and Gabbert proceeded after the boys and arrested them at a point 400 feet or more from the railroad right of way. Murphy did not say anything to the boys about trespassing at the time he arrested them. He asked them why they had thrown stones, and all four admitted having thrown the stones. The special agents took the boys to a police station and informed the officer at the desk, Desk Corporal O’Day, what had occurred; that they were juveniles and that they were charged with'trespassing. O’Day told Murphy to make a report to the juvenile officer and turn the children over to their parents, with instructions to return the next day. Plaintiff was detained 40 or 45 minutes while waiting for his parents. .When the boys returned the next day the juvenile officer talked to them and to their parents and explained the dangers of playing on and around railroad property and of throwing rocks at the trains.

Plaintiff and his companions testified that they crossed the tracks and right of way of the defendant, but denied that either plaintiff or any of them threw rocks at the train. They claimed to have simply waved at the passing train, and denied having admitted that they threw rocks at the train.

At the time in question there was in force and effect Section 79, Chap. 46, Revised Code of the City of St. Louis (1948), which makes it unlawful for any person without lawful authority, or without the express or implied consent of the owner, to enter any improved real estate, lot or parcel of ground in the city. Persons violating the ordinance are deemed guilty of a misdemeanor.

Plaintiff’s appeal raises ten points, which we have grouped into six separate headings.

Comments by the court. Defendant placed Mr. Curran, a juvenile officer on the stand. On cross-examination plaintiff’s counsel asked a hypothetical question as to the effect on plaintiff’s mental well being of having to reveal the arrest in question in answering questions in applications for employment and in entering the navy. The question assumed that plaintiff did not in fact throw any rocks at the train. In sustaining defendant’s objection to the question the court commented, “It assumes he didn’t do it, and the testimony here is that he admitted he did do it.” (As indicated, plaintiff and his witnesses had testified negatively, while defendant’s witnesses had testified positively, as to the rock throwing.) The court’s comment inferentially ignored plaintiff’s testimony and was improper, as the court immediately recognized when, upon objection by plaintiff’s counsel the court sustained the objection, and upon request by plaintiff’s counsel that the remarks be stricken and the jury instructed to disregard, the court said “Ladies and Gentlemen of the jury, Mr. Marshall made an objection to the remarks I made, and just don’t take them into consideration when you bring in your verdict.” Plaintiff asked for no other or further relief. We cannot say that the effect of the improper remark was not dissipated by the prompt corrective action taken by the court.

In his brief on appeal plaintiff further objects to the court’s comment that Mr. Curran was “one of the good” juvenile officers attached to the juvenile court, but that question was not preserved for appellate review in plaintiff’s motion for new trial. Sup.Ct. Rule 83.13(a), V.A.M.R.

Admission of evidence. Defendant’s watchman Murphy made a written report to defendant, Exhibit J, stating: “These boys were observed by Lt. Gabbert and myself to throw rocks at Wabash train No. 9 proceeding west.” Plaintiff objects that J was hearsay, self-serving and incompetent; that Murphy was possessed of a motive to misrepresent. The fact that these boys threw rocks at Wabash Train No. 9 was testified to by Murphy and Gabbert. J introduced no new fact into the case; did not relate to any facts which were not established by other competent testimony; was cumulative merely, and therefore not prejudicial, Kelly v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 315 S.W.2d 699, 703 [3]; Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 116-117; Oglesby v. St. Louis Public Service Co., Mo.App., 338 S.W.2d 357, 364, even if improperly admitted, a question not necessary to be decided.

Other employees made written hearsay reports of other incidents which occurred over a period of more than a year preceding the time in question, involving the throwing of rocks, stones, bricks, etc. at train windows, one of which injured a passenger named Salvador Zepeda; and the shooting of BB guns against car windows, breaking them. The objection is that the reports were not firsthand but were hearsay upon hearsay, and as such inadmissible. The reports were introduced not as evidence of the truth of the facts asserted therein, but to show the reason why defendant’s employees were “on their guard,” as the trial court expressed it, and as evidence of the “good faith” in which defendant was acting in arresting this plaintiff. The hearsay rule has no application where the extrajudicial utterance or writing is offered “ ‘not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted * ” Wigmore on Evidence, § 1766, quoted in Mash v. Missouri Pac. R. Co., Mo.Sup., 341 S.W.2d 822, 827. And as stated by the federal court of appeals in Barnard v. Wabash Railroad Co., supra, 208 F.2d, l. c. 496, this evidence was not prejudicial because “evidence tending to show defendant’s motive and purpose in doing the acts alleged is admissible in mitigation of damages.” Plaintiff had prayed for punitive damages, and evidence of frequent reports of depredations of a similar character occurring along this section of tracks was material to show that Murphy and the other watchman acted reasonably and without malice in making the arrest in question.

The admission of the trespass ordinance is contested on four grounds. First, plaintiff says that under the juvenile laws this 12-year-old boy was not subject to a charge of committing a crime. The ordinance was admitted in this civil action, not for the purpose of determining whether plaintiff was guilty of a “crime,” but whether there was probable cause for his arrest. Barnard v. Wabash R. Co., supra, 208 F.2d, l. c. 495. Second, plaintiff maintains that the ordinance was invalid because not in harmony with the state law on the subject. The ordinance has not been declared invalid, so far as we are informed, and had not been so declared at the time of the arrest. In such case we need not rule on the validity of the ordinance because the watchman had the right to rely upon its validity until such time as it might be declared invalid. Manson v. Wabash R. Co., supra, 338 S.W.2d, l. c. 59. Third and fourth, plaintiff claims that defendant did not plead that it arrested plaintiff for trespassing, and that the trespass was not asserted as a ground for the arrest at the time plaintiff was arrested. Paragraphs 11-17, both inclusive, of the answer relate to trespassers on the railroad right of way endangering the safety of passengers and interfering with trains; charge plaintiff with being a trespasser; charge plaintiff with having thrown stones, sticks and missiles at a Wabash train at that place, thus interfering with the safe operation of the train, the safety of passengers and employees, and endangering himself; relate to the duty of the railroad to protect passengers and employees from exposure to danger from “acts of trespass in throwing stones, sticks or other missiles against trains * * *, and from the necessity of bringing its said train to emergency stops in order to avoid striking said trespassers,” and the duty “to keep trespassers off of said right-of-way and to remove them therefrom.” The trespass ordinance is pleaded. The answer alleges the authority of the watchmen to guard, watch and protect the right of way to assure free and safe passage of Wabash trains, passengers and employees against all dangers arising, or which might arise from trespassing upon said right of way and interfering with free passage of trains, and that at said time and place plaintiff and others were discovered by one of the watchmen in the act of throwing stones, sticks and rocks at a passing Wabash train. The intent of the answer to allege the violation of the trespass ordinance as one of the reasons for plaintiff’s arrest and as one of the defenses in'the lawsuit is manifest. Indulging every reasonable intendment in favor of .the pleading, and giving it the liberal construction to which it is entitled, Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, and cases cited 603, 604 [2], [3], we infer that the answer sufficiently alleged that plaintiff’s trespass was a cause of his arrest. It was not necessary for the special agents, to advise plaintiff of the offense for which he was being arrested, since he was apprehended upon fresh pursuit, immediately after the commission of the act. Smith v. Drew, 175 Wash. 11, 26 P.2d 1040.

Exclusion of evidence. The report of the injury to the passenger Salvador Zepeda indicated that the injury to his eyes resulted from . someone throwing a rock .through the coach window. Plaintiff complains of the rejection of a hospital record .which showed that, the injury occurred when a piece of coal fell from a passing train, striking and shattering the glass. Plaintiff contends that defendant’s report was introduced to convince the jury that on many occasions in the past stones had been thrown at trains by boys, “and to there'by convey added weight to defendant’s evidence that plaintiff had thrown stones * * at the time in issue”; that the hospital record was , admissible as rebuttal evidence. Plaintiff is mistaken as to the purpose of offering the Zepeda and other reports which, as we have seen, were offered and received not to evidence the matter asserted .therein but. to account for the state of mind .of Murphy and his fellow watchman. Whether in fact the window was broken by a rock thrown by a boy or a piece of coal falling from a passing train was not the issue. Plaintiff’s offered evidence in rebuttal on that question was not relevant or material.

Complaint is made that the court excluded evidence offered by plaintiff wherein watchman Murphy impeached himself by confessing that he had falsified under oath (by stating that he held a master’s and doctor of Laws degree when in fact he did not) when he applied for a license as a private watchman. The record does not show that this evidence was excluded. On the contrary, the record shows that the testimony of Murphy admitting that he did not hold these degrees when he signed a sworn application stating that he did, was read to the jury and that plaintiff had the full benefit of this impeachment.

After defendant rested plaintiff offered that portion of the transcript in the previous trial of Frank v. Wabash R. Co., supra, in which watchman Murphy testified that he talked to the group of boys arrested in that case, and told them “about the engineer having a heart attack,” thinking it would impress them, and make them more careful in their conduct around the railroad in the future. When asked if he thought children ought to be instructed by lying to them he answered, “If it is effective, I think it might work.” Plaintiff offered this in order to impeach the testimony of watchman Murphy which had been read to the jury from the transcript in the case of Valentine v. Wabash R. Co., a case tried in a federal district court. The extent to which the trial court should go in the admission of specific collateral matters tending to disparage and discredit the testimony of a witness is a matter within the sound discretion of the trial court. Willis v. Wabash R. Co., Mo.Sup., 284 S.W.2d 503, 512; Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58, 60. The court did not abuse its discretion in excluding this particular matter. The Valentine transcript, read to the jury, contained 27 pages of examination by plaintiff’s counsel, in the course of which Murphy was subj ected to searching examination with reference to many matters tending to discredit him, including the inconsistency between his testimony in chief and by deposition concerning the badge he exhibited to the boys at the time of arrest; the fact that he had a badge inscribed “Wabash Railroad” with the word “Chief” underneath, although the railroad had never furnished him with a badge; whether he told some boys arrested on another occasion that Ze-peda had lost the sight of one eye and was to lose the sight of the other; whether he stated to their parents that there were international complications and an exchange of diplomatic notes between the United States and Mexico arising out of the Zepeda case (Zepeda was a Mexican national) and that Zepeda had a claim for $50,000 pending against Wabash, after Zepeda’s claim had been settled for $50; the fact that he and his deputy arrested 150 or so children during that four months’ time; the contents of his application for a commission as a licensed watchman, including whether he had ever been arrested, traffic violations, the extent of his education, and the fact that Murphy had indicated that he held a master of arts degree and a degree of doctor of laws, whereas in fact he did not hold these degrees; whether he flunked out of Washington University, etc. While it would have been entirely proper for the trial court to have permitted the reading of the one additional item offered in impeachment, we find no abuse of discretion in excluding it, in view of the fact that the court permitted the reading of the Valentine transcript in which Murphy’s accuracy, veracity, credit and character were put to an extensive test.

Refusal to discharge the jury. On cross-examination Ronald Valentine, one of plaintiff’s companions, testified that he had a lawsuit against Wabash, which was tried in federal court about eight years ago, arising out of the same incident which was the basis of plaintiff’s action. Then counsel for defendant asked this question: “Will you tell me what the results of that suit was?” Plaintiff’s objection was sustained on the ground that it was irrelevant and immaterial. Plaintiff then asked that a mistrial be declared. Out of the hearing of the jury defendant made an offer of proof that there was a jury verdict in favor of the railroad, and that plaintiff recovered nothing in his suit, to show bias on the part of the witness, on the theory that &e fact that the witness got nothing would make him “more biased.” The court refused the offer of proof on the ground that it would not be binding on this jury; and that it was not shown that the identical testimony was introduced before the other jury. Plaintiff now contends that the mere propounding of the question informed the jury that the verdict in Ronald’s suit was favorable to the railroad company, notwithstanding the question was not answered, and that plaintiff was prejudiced thereby. The question is not the effect on the verdict if Valentine had been permitted to answer that the jury brought in a verdict against him and in favor of the railroad. The court did not per- ■ mit Valentine to answer the question. The ' question for decision is the limited question ■ whether the mere asking of the question constituted reversible error. Conceivably a question might be so framed and weighted on a subject so sensitive and influential that the question itself would inevitably convey improper information to a jury and thereby render a trial unfair, but this is not such a question. No particular inference was forced or suggested by the inquiry. If the jury engaged in surmise as to what answer counsel was seeking to elicit it might as well have speculated that Valentine won his suit as that he lost it. If the jury guessed that he won, it still would have been uniformed whether he won substantial damages or nominal damages only. The question as asked gave no hint of plaintiff’s success or failure, or the extent of his success or failure. The question as asked gave the jury no basis for speculation as to whether the plaintiff voluntarily dismissed at the close of the evidence; whether the court dismissed the case before submission to the jury, or whether there was a hung jury. The form of the question was not leading and suggestive. There were too many possibilities and unknowns for the mere propounding of the question to require a reversal of this judgment. The trial judge, who had the best opportunity to appraise the effect of the asking of this question, did not regard it as prejudicial, either' at the time the point was raised at the trial, or when the point came before him for reconsideration on motion for new trial. On this review we find no merit in the point.

The giving of instructions. Instruction No. 11 instructed upon the contents of the trespass ordinance; required a finding that defendant had the right to the exclusive control of the right of way; that it' was- improved real estate; that plaintiff entered the right of way without authority, or express or implied consent; that plaintiff was guilty of violating the ordinance; that Murphy and Gahbert had the same authority to arrest as a member of the city police force; that plaintiff entered the right of way in the presence of the watchmen, or that they had reasonable cause to believe that plaintiff had so entered. Upon finding these facts the jury was instructed that the watchmen had authority to take plaintiff into custody and detain him and that there was no false arrest. Plaintiff says No. 11 was prejudicially erroneous for the following reasons: First, that trespass was not pleaded as a ground for the arrest. We have determined to the contrary, for the reasons previously given. Second, that there was no evidence that violation of the ordinance was a ground for the arrest. Sufficient evidence of this fact is the testimony of the desk corporal, O’Day, that when the special agent (Murphy) brought the boys into the station he was told that “they were juveniles and they were charged with trespassing.” Third and fourth, that there was no evidence, and no requirement of a finding, that this 12-year-old boy had “criminal capacity.” In order to justify an arrest for a violation of a city ordinance it is not necessary that the offender be proved or found to have had criminal capacity, or to have been of age. A child may be arrested if he violates a city ordinance in the presence of ah officer, notwithstanding he may not be amenable to the procedures applicable to adults. Infancy provides no immunity from arrest. 4 Am.Jur.Arrest § 93, p. 64. Fifth, that the instruction erroneously instructed the jury that the watchmen had the same authority as a police officer, and therefore conflicted with Instruction No. 3, which instructed that the authority of a private watchman was restricted to an area in and around the property of the railroad and its right of way. Plaintiff contends that plaintiff was not "in and around the private property of the Wabash Railroad” when at a point more than 400 feet off the right of way. A Wabash private watchman is “authorized to make an arrest, in the locations and during the time specified in his license, under the same circumstances as would a member of the police force of the City of St. Louis.” Frank v. Wabash R. Co., supra, 295 S.W.2d, l. c. 21. Murphy had authority “in and around the property of the Wabash Railroad Company.” Whether an arrest some 400 feet off the right of way was an arrest “around the property” of the railroad was a jury question. By Instruction No. 3 the jury was permitted to determine whether an arrest more than 400 feet from the right of way constituted an arrest “in and around the defendant’s property or right-of-way” and, if not, the jury was instructed to return a verdict for plaintiff. We cannot say as a matter of law that the jury could not so find. We note in passing that the secretary of the hoard of police commissioners testified without objection that the board construed the power and duties of watchmen under this license to include the railroad right of way, additional lands, and to extend “half, even a mile.” There was no conflict between Instructions Nos. 11 and 3, as charged.

Instruction No. 13 told the jury that the watchmen’s power of arrest was not confined solely to the property of the railroad; that it authorized them on seeing the commission of an act on Wabash property entitling them to arrest, to pursue the person and arrest him even though the arrest may take place off of Wabash property. Plaintiff says No. 13 was prejudicially erroneous because it improperly extends the area of authority beyond that granted by the license and beyond the area heretofore determined in the Frank opinion, supra. The statement in tire Frank case was written under the evidence in that case, which showed that the arrest was made when the boys climbed the embankment forming the slanting side of the excavation for the tracks. Here the arrest was made 400 or more feet away from the right of way. Instruction No. 3, authorizing arrest “off the property” under the specified conditions, is not inconsistent with the power to arrest “around the property” of Wabash, under the language of the license, its construction by the issuing authority, and the facts in this case.

Refusal of instruction. The court refused to give Instruction No. IS, requested by plaintiff. Plaintiff says the refusal of No. .15 constituted reversible error because it .properly declared the law respecting “the .burden of going forward with the evi•dence.” .Given Instruction No.-9 follows: “You are instructed that the law places the .burden of proof on the plaintiff. This means that the plaintiff must prove by the .greater weight of the evidence that defendant falsely arrested and imprisoned him and .that he was damaged; and unless you find that the greater weight of the credible evidence is in his-favor, he has not sustained his burden of proof, and your verdict shall be in fayor of defendant.” Refused Instruction No. IS cast the burden, upon defendant to show a legal justification of the arrest if plaintiff was arrested without a warrant. Instruction No. 9 and refused Instruction No. IS are the same in substance as Instruction No. S and refused instructions R and W in Frank v. Wabash R. Co., 295 S.W.2d, l. c. 22. For the same reasons given in that case we hold that Instruction No. 9 properly declared the burden of proof in this case, and that the refusal of Instruction No. 15 was proper.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: .SPERRY, Commissioner.

text:
    Marybeth SIMRALL, Plaintiff, v. James S. SIMRALL, Jr., Defendant.
    No. 23603.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1962.

      Sheffrey, Ryder & Skeer, Herbert M. Krigel, Kansas City, for appellant.
    Tucker, Chamo, Willens & Jouras, George H. Chamo, Jr., Kansas City, for respondent.
   .SPERRY, Commissioner.

Appeal from an order and judgment of the circuit court denying defendant’s motion ,to set aside the judgment, dated February 10, 1960, obtained by plaintiff against him, in the amount of $6494.07, and the execution, attachment and sale thereon.

The record discloses that the parties were formerly husband and wife; that, on December 27, 1956, they entered into a written agreement whereby defendant agreed to pay to plaintiff the sum of $200 (exclusive of child support) on the tenth day of . each month thereafter so long as she should remain ..unmarried. On December 17, 1957, •plaintiff sued defendant on the above contract, pleading it and alleging that defendant was thereby obligated to pay to her $200 per month, commencing on January 10, 1956; that he failed and refused to pay her anything; that the sum of $2400 was due thereon, including installment due December 10, 1957; “that additional installments on said contract will become due in the future”; that defendant was entitled to certain credits for utilities paid by him, to-talling $324.05. The prayer was as follows : “wherefore, plaintiff prays judgment against defendant in the sum of $2075.95 with interest thereon, together with such sums as may become due prior to the judgment of the court herein, and for her costs”.

Defendant, on January 19, 1959, filed his answer to the above petition admitting the .execution of the contract as pleaded, and alleging that defendant had violated its terms in certain particulars. On February 28, 1959, the cause was, on application of defendant, transferred to the Jackson Circuit Court. On February 19,1960, the cause was called for trial by the court. Defendant did not appear in person or by counsel. The court heard the testimony, which was to the effect that there was then due, under the contract, $200 per month from and including January 10, 1957, through February 10, 1960, less credits totalling $905.93 for utilities paid by defendant. Having previously permitted plaintiff to amend her prayer as to the amount of judgment requested, so as to conform to the proof, the court found and announced that defendant had been duly and regularly notified of the date of the hearing and entered judgment against him in the sum of $6494.07. The record contains a pleading filed by defendant in another case wherein he admitted haying received notice from plaintiff’s counsel of the setting of the case and that the judgment sought would include all installments due at time of trial. Thereafter, certain of defendant’s property was sold under judgment and execution.

Defendant contends that the amendment by interlineation at the hearing for a default judgment constitutes a new and additional claim for relief of which he had no notice; that no valid judgment could be rendered on the amended petition because of the effect of Rule 55.28, V.A.M.R., which is as follows:

“Amendments Affecting Parties in Default. Where amended or new pleadings assert new or additional claims for relief against a party in default for failure to appear, which are required to be served in the manner provided for service of summons, the defaulting party is required to appear and defend within the same time as is required after the original service of process of like character”.

Defendant cites Miltenberger v. Center West Enterprises, Inc., Mo.App., 251 S.W.2d (4) 385, 388, quoting therefrom as follows:

“Interpreted literally, the phrase ‘new or additional claims for relief’ as used in this provision of the new code would cause said statute to be construed to mean that no pleadings subsequent to the original petition need be served on parties in default for failure to appear unless said pleading contained a prayer for an additional amount of money or some other new or additional relief.”

However, the court said, on the same page, that every amended pleading contains some new or additional allegation else there would be no occasion for filing it; and held that “claim for relief” is synonymous with “cause for action”.

The amended petition here considered stated the identical cause of action pleaded in the original petition where the full contract was pleaded and where the prayer was for judgment for the amount due thereon at the time of filing, and for such additional installments or amounts as might be or become due when the court should try and determine the cause. By the amendment, no additional sum of money was prayed for than was originally asked. The amendment amounted only to providing a method of computation of the amount claimed, fully in accordance with the original pleading, just as it might have been done in a case involving interest on a promissory note.

Furthermore, defendant had “appeared” by answering and by taking a change of venue. He was not in default within the meaning of Rule 55.28, supra, 6 C.J.S. Appearances § 1, page 4, par. 1; nor was the amendment made without notice to him. He had full knowledge, by his own admission, that the trial would be had on February 10, 1960, and that the judgment sought at that time would be for an amount including all monthly payments falling due prior to the date of trial.

The judgment of the trial court is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner.

text:
    Robert I. SMITH, Respondent-Appellant, v. HOME BUILDING CONTRACTORS, INC., and Michigan Mutual Liability Co., Respondents, and Milrey Development Company, and Iowa National Mutual Insurance Co., Appellants.
    Nos. 23588 and 23589.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 3, 1962.

      David R. Clevenger, William D. Lay, Platte City, for Robert Smith.
    Price Shoemaker, Elmer E. Reital, St. Joseph, for Milrey Dev. Co. & Iowa National Mutual Ins. Co.
    Donald G. Stubbs, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondents.
   SPERRY, Commissioner.

This appeal is from a judgment of the circuit court affirming in part, and reversing in part, an award of > the Industrial Commission.

The record shows that Robert I. Smith, claimant, received accidental injuries on December 4, 1958, while working as a laborer on a prefabricated house being erected by Milrey Development Company, (Iowa National Mutual Insurance Company, insurer), hereafter referred to as Mil-rey, on property owned by it. The house was one sold to Milrey by Home Building Contractors, (Michigan Mutual Liability Insurance Company, insurer), hereafter referred to as Contractors. The injury arose out of and in the course of claimant’s employment, and no question is presented regarding the amount of the award.

The referee found that claimant was the employee of Contractors when the injury was incurred; that Contractors had paid compensation to claimant in the sum of $1258.94, and had paid medical aid in the sum of $1457.45; that Contractors now contend that it was not claimant’s employer but had paid the above sums by mistake; that no claim as against Milrey was timely filed and that any claim as to it is barred by the statute of limitations. He awarded claimant the total sum of $4875.00, less $1258.94, or a balance of $3616.06, against Contractors.

Upon review, a majority of the commission found that claimant, when injured, was the “loaned employee” of Milrey and was not, at that time, employed by Contractors; that there was consent by claimant to work for Milrey, pursuant to an implied contract so to do, and that Milrey had the power to control the details of the work to be performed, how the work should be done, and whether it should stop or continue. The commission also found that no timely claim was filed against Milrey and denied compensation as against it, and also denied compensation as against Contractors.

Upon appeal the court, in a memorandum opinion commendably clear and logical, affirmed the award in respect to the finding that claimant was the special employee of Milrey when he was injured; held that the facts found by the commission do not support an award denying compensation to claimant against Milrey; affirmed the award in respect to the commission’s finding and holding that claimant was not the employee of Contractors; and remanded the award to the commission for further proceedings, including determination of compensation of claimant against Milrey.

Claimant testified to the effect that he was, at the time of the hearing, employed by Contractors as a laborer and had been so employed for a period of eight years; that, when injured, he was working on the first floor of a house that was being erected; that another employee called to him from the basement; that he opened the door at the top of the stairway; that the top step flew out from under him; that he fell, suffering serious injuries; that Jack Reeder was there and “had Joe Miller” take him to D.r. Knox; that, at that time, he was working in Milrey Subdivision of Platte Ridge; that Milrey paid him for that day’s work; that Jack Reeder was superintendent for Milrey; that plaintiff had worked at the same place on the day before he was injured and was paid therefor by Milrey; that Contractors were in the business of selling prefabricated houses; that claimant would, from time to time, help erect houses in the Milrey development project; that, wherever he had worked, he was under the immediate supervision of Contractors’ foreman, who directed his work; that the foreman told him to work at Milrey’s on this occasion and that he did not care where he worked; that he went wherever he was told to go; that he knew when he worked at Platte Ridge he would be paid by Milrey; that, when he was hurt, he did not fill out an accident report but that the foreman filled it out and sent it in; that he paid no attention to who paid him; that he filed no claim until January 26, 1960. (This was more than one year after the date of the accident but within one year of the date of the last payment for compensation by Contractors; and medical aid was furnished by Contractors until less than one year before filing of the claim against Milrey.)

Mr. Thompson, an employee’ and foreman of Contractors, stated that on December 4, 1958, he was working in Platte Ridge, for Milrey, directly under the supervision of Reeder, superintendent for Mil-rey; that Reeder was present when the accident occurred; that he was paid by a Milrey check, from which standard deductions were made; that he and Reeder, jointly, filled out an injury report on claimant a few days afterward; that the lot upon which the house was being erected was owned by Milrey; that Reeder put the report in the mail; that he would have quit and left the job at any time if Reeder had told him to do so; that claimant worked under witness’ direction both for Contractors and for Milrey. He identified claimant’s exhibit “C”, “Report of Injury”, and stated that it bore the signature of E. B. Smith, Treasurer of Contractors.

E. B. Smith stated that he is Treasurer of Contractors. He identified two exhibits as the front and back of the earnings record of claimant, and stated that they were a part of the business records of Contractors and in his custody. These exhibits showed earnings of claimant up to and including December 2, 19S8, which was the last day claimant worked for Contractors. Witness stated that Contractors sold houses to Mil-rey; that Milrey would pay Contractors’ crew for labor in erecting them; that Reeder was Milreys foreman; that claimant was Milrey’s employee on the day he was injured; that witness made a mistake when he reported claimant as being an employee of Contractors; that he did not know that Contractors’ insurer paid compensation to claimant until February, 1960; that claimant could have been, and was occasionally, loaned to Milrey.

From the above evidence the commission could have found, as it did, that claimant, when injured, was a “loaned employee” to Milrey, (Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628, 633-634; Pulliam v. Home Building Contractors et al., Mo.App., 363 S.W.2d 48); and that claimant was not, at the time he was injured, an employee of Contractors, but was an employee of Milrey.

Claimant filed no claim for compensation until January 26, 1960, more than a year after December 4, 1958, when the accident occurred. Section 287.430, RSMo 1959, provides in part as follows:

“Limitations as to action — exception. No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * ”

Compliance with the statute in this respect is jurisdictional. Murphy v. Burlington Overall Co., 225 Mo.App. 866, 34 S.W.2d 1035, 1038; Thomas v. Baker-Lockwood Mfg. Co., 236 Mo.App. 1248, 163 S.W.2d 117, 119.

Milrey contends that the claim for compensation is barred as to it by the above statute, and the commission so held. However, claimant contends, and the court held, that the statute was tolled because of regular compensation payments made by Contractors’ insurer from and after the injury was received until a time within one year of the date of the filing of this claim. The award, as to Milrey, is based on the theory that the statute bars any claim as to it.

No Missouri decision dealing with the precise question here presented has been cited. The learned trial court stated that it' appears that our courts have not answered the question.

We are commanded by Section 287.800, RSMo 1959, to liberally construe all provisions of this chapter, with a view to the public welfare; and it has been held that where there is any doubt as to the right to compensation, the doubt should be resolved in favor of the employee, Lupton v. Glenn’s Oyster House, Mo.App., 266 S.W.2d 53, 57. The law is designed to protect employees who may be injured while performing labor in the furtherance of society’s benefit and economic progress. The theory is that industry should bear the entire cost of its operations, including that of injuries to human beings. It is in the public interest that workmen injured, as this claimant was, be made whole, or as nearly so as may be, at the expense of the industry where his injuries occurred; otherwise, he and his family will suffer and may become a liability and burden to the public.

In Whittington v. Gamble Construction Co., Mo.App., 86 S.W.2d 331, the employer voluntarily made compensation payments to the widow of deceased employee until her death, more than six months after the death of the employee. After the widow’s death the employee’s daughter filed claim for benefits. The claim was contested on the grounds that it was barred by the statute of limitations because not filed within six months after death of the employee, the time allowed by statute at that time. However, it was filed within six months from the date of the last payment made to the widow. The court said:

“Now in this instance the payments made to the widow were voluntary payments, in that they were made pursuant to a temporary agreement between the parties and without the rendition of an award by the commission on contested issues, and therefore were of the very character of payments contemplated by section 3337, supra, as extending the time within which a claim for compensation may be filed. * * ”

The court held that a different ¡ruling would run counter to the mandate expressed in Section 287.800, supra.

The facts in that case are not on “all fours” with those of the case at bar, but there is much similarity between the cases. The decision is pertinent, but not controlling, in a consideration of the law governing this case.

In State Compensation Insurance Fund v. Industrial Accident Commission, Cal., 158 P.2d 195, 198, the court held that the statute of limitations runs from the last payment of any compensation and not from the last payment by the party sought to be joined in the proceedings. In so holding, the court distinguished its previous rulings which were, by the commission, thought to bar a claim against a special employer against whom no claim had been filed within the statutory period.

The court said (158 P.2d 198) that the claim was not bar-red; that, while the claim was not filed within six months of the injury, it was filed within six months after the last payment of compensation by another, the general employer. The court further said that the statute enjoins a liberal construction; that it is broad in terms and provides a period running from the last payment of any compensation (not from the last payment by the party sought to be charged); that to strictly enforce the general limitations rule in compensation cases would be against the policy of the compensation act and contrary to its spirit and intent; and that it would penalize the employer inclined to make payment and favor the employer inclined to avoid the performance of his obligation. This doctrine was reaffirmed in State Compensation Insurance Fund v. Industrial Accident Commission, Cal.App., 166 P.2d 310, 312-313, and in Subsequent Injuries Fund v. Industrial Accident Commission, 155 Cal.App.2d 288, 318 P.2d 34, 35-36. The statute referred to in the opinions (Labor Code 5405(a) 1937) is almost identical, in its essentials, to the provisions of our Section 287.430, supra.

In Cook v. Buffalo General Hospital, 308 N.Y. 480, 127 N.E.2d 66, 67, a nurse was loaned by one hospital to another and, while working for the latter, contracted pulmonary tuberculosis. She filed no claim for compensation within the statutory time allowed, but her general employer furnished medical care. The applicable statute provided that “No case in which an advance payment is made to an employee * * - * shall be barred by the failure of the employee to file a claim”. Thereafter, the nurse filed her claim and the court held that the statute is broad enough to make effective for the purpose an “advance payment” by either a general or special employer, or by both; and that an award against the special employer alone is not improper.

Our Section 287.430, supra, provides broadly that an action for compensation may be instituted “within one year from the date of the last (compensation) payment”. It does not specify that such a claim may be filed only against an employer who had made payments within one year. To sustain Milrey’s position in this case we would be required to read that limitation into the section. Under similar statutes, the courts of New York and California refused, in effect, to so amend the statute, and gave it the broad interpretation that we are commanded to give it under our Section 287.800, supra. In this case claimant was, and had been for a long time, regularly employed by Contractors. He was loaned, with his consent, to Milrey. Milrey’s superintendent, Reeder, collaborated with Contractors’ foreman in filling out and forwarding the ■ notice of accident to Contractors. Claim- . apt did not know who paid his compensation (it was paid by an insurance company) ,and did not know who was legally liable to pay it. He was entitled to be paid for his injury. To hold otherwise, because of a ..technical error made by Milrey’s own superintendent, would be for us to deprive him of his rights against the employer for whom he was working at the time he was •injured. In the circumstances, here shown, this would be neither logical nor equitable. It would be, in effect, straining at a gnat. We hold that the claim, as to Milrey, was timely filed.

In this case, the commission made an award in favor of Contractors. Whether claimant is entitled to an award against it, as may be indicated by the California and New York cases heretofore cited, is not important in this case. He was in the employ of Milrey when he was injured, and an award against a special employer alone is not improper. Cook v. Buffalo General Hospital, supra, 127 N.E.2d 66-67.

Claimant contends that, if his claim as to Milrey is barred by the statute, then Contractors should be held to be estopped to deny that it was his employer at the time he was injured. In Harding v. Industrial Commission, 83 Utah 376, 28 P.2d 182, 185, 91 A.L.R. 1523, it was held that estop-pel may be ruled in a compensation case under certain conditions. In Industrial Indemnity Co. v. Industrial Accident Com’n., 115 Cal.App.2d 684, 252 P.2d 649, 652-653, it was said that the doctrine of equitable estoppel in pais is applicable in a proper case to prevent a fraudulent or inequitable resort to the statute of limitations; and that one cannot justly or equitably lull his adversary into a false sense of security, thereby causing him to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his conduct as a defense to the action when brought. However, in this case, we have held that the claim is not barred by the statute. There is no occasion to discuss the matter further.

The judgment of the trial court is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: MAUGHMER, Commissioner.

text:
    RUDY-FICK, INC., Plaintiff-Appellant, v. B. N. SNIDER, Defendant-Respondent.
    No. 23635.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      John I. Moran, Kuraner, Freeman, Ku-raner, Oberlander & Lamkin, Kansas City, for appellant.
    Virgil Conkling, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is an appeal from the circuit court, dismissing an appeal taken to that court from a judgment rendered by a magistrate. The sole question presented is whether or not the affidavit and notice of appeal is sufficient to confer jurisdiction.

The action, instituted in the magistrate court, by plaintiff Rudy-Fick, Inc., sought recovery of $640.79, alleged to be a reasonable charge for “materials, work and labor” furnished in repairing defendant’s truck. Defendant, B. N. Snider, counterclaimed in two counts based upon fraudulent misrepresentations allegedly made by plaintiff’s employees to defendant as to the size of the engine in said truck, which defendant had purchased from plaintiff corporation.

On December 22, 1961, the magistrate entered “judgment for defendant on plaintiff’s petition and judgment for plaintiff on defendant’s counterclaim”. On the last day of the appeal period plaintiff filed its affidavit and notice of appeal in part as follows : “TAKE NOTICE, that an appeal has been taken from the judgment of Joseph L. Duffy, Judge of the Magistrate Court of Clay County, Missouri, West District, rendered on the 22nd day of December, 1961, against the said plaintiff on plaintiff’s petition only”. (Italics added.)

Thereafter defendant filed his motion to dismiss, asserting that plaintiff’s appeal “from designated portions” of the judgment was a partial appeal, was unauthorized under the statutes and insufficient to confer jurisdiction upon the circuit court. This motion was sustained and the appeal dismissed.

The right of appeal is purely statutory. In magistrate court where a set-off or counterclaim is pleaded, only one net judgment shall be entered. Section 517.270, V.A.M.S. provides:

“If the amount of the set-off or counterclaim duly established be equal to the plaintiff’s debt, judgment shall be entered for the defendant, with costs; or, if it be less than the plaintiff’s debt, the plaintiff shall have judgment for the residue only, with costs; and if it be for more than the plaintiff’s debt, the defendant shall have judgment for the excess, with costs, and execution shall be awarded therefor.”

Only the cause tried by the magistrate may be tried upon the appeal. Section 512.-280, V.A.M.S. states:

“The same cause of action, and no other, that was tried before the magistrate, shall be tried before the appellate court upon the appeal; provided, that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be added in the appellate court.”

In Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746, 747, under the former justice court practice (Sec. 2738, R.S.Mo., 1939) almost identical with Section 517.270, supra, the suit was for recovery of furniture and defendant filed a counterclaim. The judgment was for plaintiff, both as to the petition and on defendant’s counterclaim. Defendant’s appeal affidavit and notice was “from the judgment as to the counterclaim”. The court said:

“Here the affidavit was defective and insufficient, in that it purported to show that the appeal was being taken only from ‘the judgment as to the counterclaim.’ Even though a counterclaim is, for certain purposes at least, to be regarded as an independent action, still the justice, in a case where a counterclaim is filed, can render but a single judgment for the net amount due the prevailing party, covering both the plaintiff’s cause of action and the defendant’s counterclaim. Section 2221, R.S.1929 (Mo.St.Ann. § 2221, p. 2401); State ex rel. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83. It follows, therefore, that when an appeal is taken it must be from the one and only judgment which the justice is authorized by law to render, and an affidavit which purports to show that the appeal is being taken from less than the entire judgment is consequently defective, irregular, and insufficient for the reason that no such partial appeal is possible. State ex rel. v. Pearcy, supra.

Gloria Lee Realty Co. v. Madigan et al., Mo.App., 243 S.W.2d 118, 121, 122, also involved a petition by plaintiff and several defendant counterclaims. Plaintiff and its codefendants appealed, not from the whole final judgment, but from three specific parts of it. The circuit court sustained the motion to dismiss the appeal. The appellate court affirmed and said:

“The notice of appeal in the case at bar was defective and insufficient to confer jurisdiction on the circuit court. The right of appeal in such cases is purely statutory, and is governed by Section 130, Laws of Missouri 1947, page 245 R.S.Mo.1949, § 512.060. Said section provides for appeals by aggrieved parties from the judgment in the cause. * * * Furthermore, the judgment in the cause from which an appeal will lie must be a single final judgment which disposes of all the issues raised by the plaintiff’s petition, and any counterclaim or set-offs filed by defendants and litigated at the trial. R.S.Mo.1949, sec. 517.270. There can be no valid separate judgment on a counterclaim or cross-claim. Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83; and any appeal taken must be from the one and only judgment which the magistrate is authorized by law to render. * * * It follows, therefore, that a notice of appeal wherein an attempt is made to appeal from a jury’s verdict or from less than the entire judgment is insufficient to confer jurisdiction on the circuit court. Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746. Nor can the notice in the case at bar be reasonably-construed as an attempt in good faith to appeal from a final judgment and, therefore, sufficient under the principles announced in Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657.”

Appellant relies on the case of Anthony v. Morrow and Kurrich, Mo.App., 306 S.W.2d 581, 583. That action was based upon negligence arising from an automobile collision. The action was commenced in the circuit court. Plaintiff, a guest in defendant Kurrich’s car, sued Kurrich and Morrow, operator of the second vehicle. Kur-rich filed a cross-claim against Morrow and Morrow cross-claimed against Kurrich. The verdict and judgment was for plaintiff against both defendants in the sum of $6500, and in favor of both Kurrich and Morrow on their cross-claims against each other. Only the defendant Kurrich appealed from the judgment “in favor of plaintiff and against defendants”. The court held that plaintiff’s judgment for $6500 was effectively appealed and disposed of the contention that the appeal was not from the whole final judgment, but instead from only a part of the judgment, by saying:

“In reaching the above decision, and in taking jurisdiction of the appeal from that portion of the judgment in plaintiff’s favor, we have not overlooked the general rule that a party may not appeal from a part of a judgment. Gloria Lee Realty Co. v. Madigan, Mo.App., 243 S.W.2d 118; Biederman Furniture Co. v. Isbell, Mo. App., 102 S.W.2d 746. An apparent exception to this rule is recognized whereby an appeal will lie from a part of a judgment where that part is the result of the trial of issues distinct, entire, and severable from the other issues tried. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428. Such is the situation in the case at bar. Plaintiff’s claim and appellant’s cross claim are separate and distinct causes of action, and appellant should be allowed to appeal from either the entire judgment or that part thereof which disposes of his cross claim.”

It is, of course, true that if for example there has been an automobile accident and plaintiff, driver of one car, sues defendant, driver of the other car, in the circuit court for damages and defendant counterclaims for damages, resulting in a judgment for plaintiff on the petition and for plaintiff on defendant’s counterclaim, defendant may, if he chooses, appeal only the judgment on plaintiff’s petition and thereby allow the judgment for plaintiff on the counterclaim to become final. However, an appeal from a magistrate court involving counterclaims where only one judgment is authorized must on appeal be tried de novo, must be the same lawsuit and no other, that was tried below and the appeal must be from this one final and complete judgment and not from only a part of it; otherwise, the appeal is unauthorized and does not confer jurisdiction upon the circuit court.

The notice of appeal here recited it was from that part of the judgment “against the said plaintiff on plaintiff’s petition only”. This notice of appeal did not even purport to be from the whole judgment. It clearly deleted from the appeal that part of the judgment regarding the counterclaim which was tried below. It did not, therefore, under the statutes and decisions herein referred to, confer jurisdiction on the circuit court.

The order and judgment sustaining defendant’s motion to dismiss plaintiff’s appeal is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: DEW, Special Commissioner.

text:
    Phineas ROSENBERG, Plaintiff-Appellant, v. GAS SERVICE COMPANY, a Missouri Corporation, Defendant-Respondent.
    No. 23640.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Joe E. Burris, Kansas City, for appellant.
    Douglas Stripp, Clayton R. Smalley, Kansas City, for respondent, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   DEW, Special Commissioner.

The plaintiff (appellant) sued defendant (respondent) to recover rent in the sum of $2600 alleged to be due and unpaid. The defendant denied the claim and filed a counterclaim for $400 alleged to have been paid as rent to plaintiff through inadvertence and mistake. At the close of plaintiff’s evidence the court, on defendant’s motion, directed a verdict for defendant on plaintiff’s petition. The court thereupon further ordered that such judgment on the petition be deemed final for purposes of appeal. In its statement to counsel, to the jury and for the record, the court then, upon its own motion, announced that it declared a mistrial of the counterclaim and would require a separate trial thereof, and discharged the jury. No objections were made by either party to the order of the separate trial of the counterclaim. Upon the denial of the motion of the plaintiff for a new trial on his petition, he prosecuted this appeal.

The first petition, filed October 14, 1957, was in the conventional form for an action to recover rent under a written lease. It pleaded a lease in writing beginning May 1, 1951, expiring at the end of five years thereafter, namely, April 30, 1956, in which lease the plaintiff reserved a rental rate of $50 per month and, among other provisions, the lease stated: “The lessee is granted an option of an additional five-year term upon the same terms and conditions hereof at a rental to be fixed at the time said option is exercised, said option to be exercised on or before December 15, 1955”. (Italics supplied). The petition alleged that defendant had refused to pay the agreed rental for the months of January to October, 1956, inclusive, and prayed judgment for $500 therefor.

On May 31, 1961, the plaintiff filed a supplemental petition to recover additional installments of rent, and asked judgment for the rent for the last fifty-two months of the alleged renewal period, a total sum of $2600 with interest on each installment due.

The defendant’s answer admitted the lease referred to in plaintiff’s petition; challenged the sufficiency of the petition to state a cause of action; admitted refusal to pay the rental installments claimed to be due; declared that the lease had terminated on April 30, 1956; and averred that the petition is based on an alleged lease for an additional term for which there was no agreement in writing signed by the defendant or by any person authorized to sign it, and which is therefore void under the Statute of Frauds, Section 432.010 RSMo 1959, V.A.M.S. The answer attributed plaintiff’s damages, if any, to his failure to rerent or to sell the premises in question.

In its counterclaim defendant stated that the lease terminated on April 30, 1956; denied having ever exercised the option for renewal; alleged that through inadvertence and mistake it sent to plaintiff eight checks, later cashed by him, for $50 each before defendant discovered that the lease had expired, whereby plaintiff had been unjustly enriched and should restore to defendant such remittances in the total sum of $400, for which defendant prayed judgment, with interest and .costs.

Plaintiff’s reply to the counterclaim denied its sufficiency to state a cause of action; admitted the lease as pleaded; admitted the receipt of the rental checks from defendant since the date of the expiration of the lease; denied that such payments had been made through inadvertence and mistake; averred that the checks were received in good faith as in payment of rent due under the renewal and alleged that defendant is estopped under the circumstances from asserting that the lease was not extended for a period of five years.

The parties have agreed in their briefs that the statement of facts as related in plaintiff’s brief (with one exception noted later) is substantially correct, which statement, with deletion of page references to the transcript and exhibit numbers, is as follows:

“Plaintiff was the only witness to testify in the case. Through him came all the evidence offered at the trial in support of his case, except for such facts as were admitted by the Answer.
“By Paragraph 2 of its Amended Answer defendant admits the making of the lease attached to and made a part of plaintiff’s petition as Exhibit ‘A’. The lease is also in evidence as plaintiff’s Exhibit 1. The initial period of the'lease was for five (5) years, beginning May 1, 1951, and ending April 30, 1956. That lease contains this clause —‘Lessee is granted an option of an additional five (5) year term upon same terms and conditions hereof at a rental to be fixed at the time said option is exercised, said option to be exercised on or before December 15, 1955’.
“Rent upon the lease was paid by defendant’s checks. To each check sent plaintiff during the initial five (5) year term there was attached a voucher which recited in pertinent part (1) defendant’s name (2) what the check was for i. e. rental of Parking Lot (3) location by legal description of the rental property — which was the property described in the lease plaintiff’s Exhibit 1 (4) the period for which the check was to pay rent.
“Sometime before December, 1955, plaintiff talked by telephone with Fred Olney. Fred Olney is the superintendent of defendant’s garage at its plant on Gillis Street and is the man with whom plaintiff talked about the lease back in 1951. In the 1955 telephone conversation with Fred Olney, Mr. Olney said ‘This is Fred Olney. I talked with you about the lease at the beginning and the time is about to run out and I am the superintendent at the Gillis Plant’. Mr. Olney identified himself to plaintiff as the same person that had talked to plaintiff when the lease was originally made. ‘He stated that the lease was getting close to the end of the Five (5) year period and they wanted to talk about the option and wanted to talk about it according to the terms of the lease’. Olney said: ‘The lease says that the rent was to be agreed upon. What do you say to that?’ After some discussion as to the amount of rent plaintiff said to Olney: ‘If you have done all that, let’s let the rent stand as it is’. Olney then said: ‘All right. We will go ahead and exercise the option then’ and plaintiff said: ‘All right’. That day or the next plaintiff got another telephone call from someone who said he was in the General Superintendent’s office and he said that Mr. Olney had reported to them that he had agreed on the option and at the same rental and asked plaintiff if he wanted a letter. Plaintiff said to him: ‘I don’t need a letter. The lease don’t call for it. The Gas Company’s word is good enough for me. Just send your check and you’ve got that done’. Plaintiff otherwise identified Fred Olney as the representative of defendant with whom he initially negotiated the lease and the party to whom he talked about it. Following April 30, 1956, the expiration date of the initial lease term, plaintiff received from defendant each month beginning with May, 1956, through January, 1957, a check in the amount of Fifty ($50.00) Dollars to which was attached vouchers reciting that the check was for rent upon the property described in the lease for each respective month. Payment on the January, 1957, check was stopped at defendant’s bank.
“Plaintiff during the period when the checks were being sent to him by defendant did not have any arrangement with defendant whereby its checks would be sent to him except for rent upon the property described in the vouchers and in the lease. These checks were accepted by plaintiff and deposited to his bank account.
“After notice that the check in payment of January, 1957, rent had been stopped plaintiff called the defendant’s office and talked with a Mr. Post who referred him to the legal department. Thereafter plaintiff received from defendant through the mail two letters from its attorney dated January 31, 1957, stating among other things that defendant had vacated plaintiff’s property on April 30, 1956, by removing all its equipment therefrom and posting ‘No Trespassing’ signs and that no one at the company is known to have renewed said leasehold arrangement for an additional term and otherwise disclaiming any renewal of the lease. At that time Mr. Olney was either incompetent or dead, because counsel for defendant stated at the trial as a ground of objection to a portion of plaintiff’s testimony — ‘Mr. Ol-ney is incompetent as a witness and under the so-called dead-man’s statute, it is my understanding of the law that the incompetency of the agent or the death of the agent of a party disqualifies the other party’. Prior to receipt of these letters plaintiff had no notice from defendant that it claimed to have vacated his property. Following receipt of these letters plaintiff went to see the property which he had not done between April 30, 1956, and January 31, 1957. Upon this visit he found the property had a wire fence around it with two entrances. Hung on a chain across one entrance was a sign saying ‘Private Property, No Trespassing, Gas Service Company’ or words to that effect. There was nothing at that time of any kind on the property except the fence and the signs. Plaintiff received no rent after December 1956. After receipt of the January 31, 1957, letters plaintiff talked to one real estate agent about seeing if he couldn’t get a tenant for the property.
“At the close of plaintiff’s 'mse defendant' made Motion for T"“ccted Verdict asserting four grounds therefor. This motion was granted upon grounds 1 and 4.
“Ground 1 -was: ‘because under the evidence the Statute of F-auds bars plaintiff’s recovery in this case; ’
“Ground 4 was: ‘because under Section 441.120 the landlord’s right to collect rent must be established by contract in writing’.
“Judgment was entered ■ against plaintiff upon the motion from which judgment plaintiff brings this appeal asserting error as hereafter set out”.

The defendant adds to the above statement the fact that during the trial the plaintiff admitted that there never was any writing exchanged between the parties concerning the exercise of the option to renew referred to in the lease. According to the transcript the plaintiff so testified.

The sole point of error assigned by the plaintiff in this appeal is that the court erred in directing a verdict for the defendant on plaintiff’s petition at the close of plaintiff’s evidence, since, under the law and the evidence, plaintiff made a sub-missible case for the jitry.

Under that heading plaintiff first contends that neither the written lease nor the law requires the option to be exercised in writing; that the method and manner of exercising the option is not a condition of the lease required by the Statute of Frauds to be in writing, but the option may be exercised orally or by conduct of the parties by holding over or by acceptance of rent; that the Statute of Frauds has no application to the case.

It is asserted by the plaintiff that the option clause sets forth the terms of rental, if exercised; does not direct how the option may be exercised, orally or by writing; that the option was factually exercised as provided by the lease and in a manner agreeable to the parties; that payment of the rent was continued and accepted into the renewal period, and defendant remained in possession of and in control of the premises during that time. Plaintiff insists that the defendant is es-topped under such circumstances to deny that the option was exercised.

The parts of the Statute of Frauds pleaded by defendant or referred to by the court in its rulings, and discussed by the parties in their briefs are:

“Sec. 432.010. No action shall be brought * * * to charge any person upon any contract made for the sale of any lands * * * or any lease thereof for a longer time than one year, * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him lawfully authorized * * * ”.
“Sec. 432.050. All leases * * * of lands * * * by parol, * * *, and not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the force- and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force”.

It is urged by the plaintiff that the lease-itself is sufficient evidence in writing of' the right to renew and of the exercise of the option to meet the requirements of the Statute of Frauds, it being in and- of' itself a written memorandum thereof; that the option clause omits only the exact dollars and cents to be agreed upon when the option is exercised. Plaintiff maintains, that under such terms the law would imply that the rental rate for the renewal period would be “the fair rental market value”" of the tenancy of the property at the time the option was exercised; that the oral agreement fixing the rental rate for an extension under the option was not an-essential part of the contract, but serves only to relieve the contract of “a superficial uncertainty” and as an assistance in a court action to determine the fair rental market value of the renewal.

Lastly, the plaintiff takes issue with the-court in also applying to plaintiff’s case Section 441.120(1). That part of that section referred to reads as follows:

“In all cases where a tenant holds over after the termination of the time for which the premises were let or leased, under a written contract between the lessor or his agent and the tenant or his agent, in any suit for pos- ■ session by the party entitled to pos--session of said premises against such-tenant, after the termination of the-time for which said premises were let or leased under written contract, oral evidence shall not be admissible that: -said lease or letting was renewed or extended, or that a new contract was entered into or substituted for the written contract, hut the tenant’s right to -continued possession or the landlord’s right to collect rent on said premises •after the termination thereof shall be -established by contract in writing; provided, however, this section shall not -prevent a recovery of damages by •either party for breach of the written contract”. (Italics supplied).

Plaintiff points out that since the -plaintiff’s case is not “for possession” of the premises involved, but only one to re-cover rental, and since the lease does pro-wide for an extension, making the holding over a privilege granted under the renewal clause of the written lease, the section last •quoted is not applicable. With the first reason assigned for this contention we agree. The expressed application of the •section is limited to “actions for posses•sion” of real property, and no other application is designated. The present action for rent only is not subject to Section 441.120(1).

Defendant contends that the court prop-erly directed a verdict in its favor on plaintiff’s petition because plaintiff’s own testimony showed his recovery to be barred by the above Sections 432.010 and 432.050 •of the Statute of Frauds. Its argument is that the amount of rent to be charged for a renewal period of the lease was an ■essential part of the option clause, which the Statute of Frauds required to be in writing; that the omission of the amount -of the rent to be paid in event of renewal could not be supplied by any implication that “a reasonable rate” was intended.

To avoid confusion by considering option ■clauses involved in other cases, cited to support the theories advanced in this case, but differing in language and effect from the one before us, it is necessary to keep in mind the exact language used in the particular lease in the present case. As we •construe the language used in the option clause at hand, the parties agreed that, if exercised on or before December 15, 1955, the defendant would have the option to continue as tenant under the same terms and conditions of the lease for five additional years, provided that defendant pay to plaintiff for and during such extended period a rate of rental to be mutually fixed and determined by the parties at the time of the exercise of the option.

It would seem a reasonable construction that the reservation by the lessor of a right to negotiate the rental rate for his property in event of an additional five-year extension of the lease would be as much of a component part of the contract as the reference to “the same terms and conditions”. It would also appear natural and logical that neither party desired nor intended to make an agreement in 1951 that would bind them to the rental rate for the original lease period and for five years thereafter. But the fact alone that the defendant did, after the termination of the original lease, remain in possession of the premises for eight months and paid plaintiff therefor at the same rate as previously under the lease, would not exclude the option clause from the Statute of Frauds, nor prove the exercise of that option for a five-year extension.

Concerning the effect of Sections 432.010 and 432.050 of the Statute of Frauds, relied on by the defendant, upon the option clause in this case, cases cited by plaintiff are not in point wherein the option clauses involved expressly provided for a renewal upon the same terms and conditions without exception, or contained no express provisions as to terms and conditions of renewal, or stipulated a determination of the renewal rate otherwise than by the parties and by which the parties agreed to be bound.

Plaintiff cites Insurance and Law Building Co. v. National Bank of Missouri, 71 Mo. 58. In that case a three-year lease required double rent in event of a holding over, but gave lessee an unqualified option to renew for ten years. Lessee did not request renewal at the expiration of the lease, but remained in the premises for six years, paying the same rate of rental. It then gave notice of termination of the tenancy. The court ruled that the contract contained all of the terms of renewal, that lessee had fully performed all such conditions to date and was estopped to deny its execution of the renewal option. The Statute of Frauds was not considered in the case.

In Blanchon v. Kellerstrass Distilling Corporation, 200 Mo.App. 610, 208 S.W. 484, a lease for one year contained an option for an extension for an additional year upon a sixty-day written notice by the lessee. No provision was made for any change of terms if the option were exercised. The lessee held over and continued to pay the rent but failed to give the written notice mentioned. This court ruled that the mere requirement of notice was for the benefit of the lessor and could be, and was, under the conditions shown, waived by him.

In Snowden v. Dawdy, Mo.App., 343 S.W.2d 197, the option clause made no mention of any change in terms or conditions in event of exercise, and thus the written lease constituted the entire agreement between the parties.

In Arnot et al. v. Alexander, 44 Mo. 25, also cited by plaintiff, the amount of rent to be charged and paid in event of the exercise of an option to renew, was “as much as any other responsible party will agree to pay.” It was held in that case that the contract provided for third parties to determine the rent to be charged upon renewal, to which determination both parties agreed to be bound. The Statute of Frauds was not considered in the case.

The principles involved in the case at bar are succinctly stated as follows:

“A lease which, in connection with the privilege of an additional term, provides for the adjustment of the rent for such term, is deemed to require a further agreement which, being a component part of the lease, must be in writing.” 37 C.J.S. Frauds, Statute of § 114, p. 606.
“Although a promise may be sufficiently definite when it contains an option given to the promisor or promisee, yet if an essential element is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Since either party by the very terms of the promise may refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such promise. On this ground clauses in leases containing renewal covenants leaving the renewal rental for the future agreement of the parties are in general held unenforceable for indefiniteness and uncertainty”. 1 Williston on Contracts 149-151, 3rd Ed. 1957.
“A provision for extension'or renewal of a lease must specify the terms and conditions of the renewal or extension with such definiteness and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid”. 51 C.J.S. Landlord and Tenant § 56, pp. 596-597.

To satisfy the Statute of Frauds, all the elements of the agreement must be contained in the written contract. Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300, 303; Grismore on Contracts, Sec. 269, page 474; Ver Steeg v. M. Longo Trust Co., 158 Mo.App. 126, 138 S.W. 901; Johnson v. Reading, 36 Mo.App. 306. Those elements are “First, the parties; Second, the subject matter; Third, the consideration”. Wheeler v. Blanton, Mo.App., 253 S.W.2d 497, 499.

One of the precedents relied on by the trial court and by the defendant is State ex rel. Johnson v. Blair, 351 Mo. 1072, 174 S.W.2d 851. In that case the option clause in a five-year lease provided for the lessee’s right to lease the described property at the expiration of the lease, for another term “provided that first parties, their heirs or assigns, and second party can agree on rental terms; and if said parties do not agree, the second party agrees to vacate said described property at the expiration of this lease * * * A notice was given by the lessor several months prior to the expiration of the lease, authorizing a renewal at $125 per month, and requesting vacation of the property at the expiration of the lease if the suggested rental rate be unsatisfactory. No immediate reply was forthcoming from the lessee, but later he made a counterproposition which was not accepted by the lessor. About a month before expiration of the lease the lessor sold the property, subject to the lease. Shortly thereafter the buyer gave lessee written notice to vacate on the date the lease expired. Thereafter, three days before expiration of the lease, the lessee gave written notice of acceptance of the option at the rate of $125 per month. The new owner refused to accept the rent and brought action in ejectment. The supreme court, affirming the judgment of the circuit court in favor of the plaintiff, had this to say relative to the application of the Statute of Frauds to the case, 174 S.W.2d at page 854: “It is apparent that the original lease did not constitute a contract for renewal, nor grant an option to renew for a further term. No terms for renewal were agreed upon. All terms were subject to future negotiation. No method was provided for the determination of terms. The provision for renewal, if the parties could ‘agree on rental terms/ was void under the statute of frauds”.

Crane v. Berman, Mo.App., 297 S.W. 423, cited with approval by the supreme court in State ex rel. Johnson v. Blair, supra, and cited by the court and by the defendant in the instant case, was an action for unlawful detainer. A five-year lease contained the following option: “It is further agreed that at the expiration of this lease said second party shall have the right and option to rent said building for a further term of five years upon such terms as may be agreed upon between the parties hereto at or before the expiration of this lease”. The lessee held over for three years, paying the same rent as he did under the original lease. The lessor, considering the tenancy then on a month to month basis, gave the lessee notice to quit the premises. The lessee, considering he had exercised the renewal option, refused to vacate. Lessee relied on an oral conversation which he claimed to have had with the lessor regarding a five-year renewal, wherein he said the lessor told him to “[l]et it go ahead as it is on the same rental of $175 per month” to which the lessee replied “All right”. The court ruled that the lease did not contain all of the terms on which the extended occupancy was to continue under the option; that oral testimony was not admissible to supply any part of it, and therefore the option provisions were void under the Statute of Frauds. The court said at page 424: “If this provision had had inserted in it the words, ‘upon the same terms as in this lease provided/ instead of the words, ‘upon such terms as may be agreed upon between the parties hereto at or before the expiration of this lease/ we should hold it sufficient”.

An omission of the consideration or price of a contract is fatal under the Statute of Frauds. Such element is a Constituent part of a lease. Glasgow Milling Co. v. Burgher, 122 Mo.App. 14, 97 S.W. 950; Hain v. Burton, 118 Mo.App. 577, 94 S.W. 589; Ringer v. Holtzclaw, 112 Mo. 519, 20 S.W. 800.

But plaintiff further contends that defendant’s continued occupancy of the premises for several months after the expiration of the lease, his monthly remittances for rent during that period and plaintiff’s acceptance and retention of such payments, constituted an exercise of the option by the conduct of the parties, referable only to the terms of the written lease, bound both parties to the extended term and that the provisions of the Statute of Frauds do not apply. In the consideration of the Statute of Frauds such a plea is referred to as “part performance”. The law zealously limits and defines the theory of part performance when it involves the Statute of Frauds. Otherwise, the laudable purposes and functions of those statutes might fail of accomplishment.

In the much cited case of Emmel v. Hayes, 102 Mo. 186, 14 S.W. 209, 11 L.R.A. 323, the supreme court said respecting the principle of part performance in connection with the application of the Statute of Frauds, page 210: “The uniform statement of the text-writers, and reported rulings of adjudged cases, is that mere continuation of possession does not • constitute part performance. There must be a radical change in the attitude of the contracting parties towards each other; a change consisting of acts done; a notorious change, which itself indicates that some contract has been made between the parties; and then parol evidence is admissible to show the details of the agreement. * * * ‘It is abundantly settled that if one who is already in possession of land as tenant verbally contract with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of part performance, within the meaning of the rule, so as to justify a decree for a lease according to the contract. In such a case the continued holding is naturally and properly referable to the old tenancy, and does not necessarily imply any new agreement between the parties. * * * For a like reason the mere possession of the premises by a tenant continued after the expiration of his term is not a sufficient part performance of a verbal contract to renew the lease * * * because such possession may be as reasonably and naturally explained by his holding over as'by an agreement to renew or to convey. In other words, it does not unequivocally point to the existence of a contract between the parties, but is-preferable to another cause. The rule is-general in its application, and fundamental in principle, that acts which are referable-to something else than the verbal agreement, and which may be ordinarily otherwise accounted for, do not constitute a sufficient part performance of it. * * * ’ ”

The above case of Emmel v. Hayes, has been cited and approved by many later cases in Missouri, including Willey v. Talkington, Mo., 312 S.W.2d 77. In the early case of Spalding v. Conzelman, 30 Mo. 177, the supreme court recognized the same principles. In that case there were both a continued holding by the tenant and payment of additional rent. The court said, page 182: “The mere taking or holding possession is unimportant * * *. So also the-mere payment of additional rent, where an agreement for a new lease is set up, is a. circumstance of little importance, inasmuch as it may be referred to a holding from year to year after the expiration of the old lease,, or to other inducements to its payment”.

In the instant case the question,, therefore, is whether the defendant’s continued possession and remittance of several monthly checks for rent accepted and retained by the defendant, would be as reasonably referable to a month to a month tenancy arising out of a mere holding over and payment of rent for same, as to the renewal option provided in the lease. The-plaintiff insists that such conduct of the parties is proper and sufficient proof of 'a renewal of the lease for another five years at the original rental rate and that the Statute of Frauds does not apply. The defendant firmly maintains that such conduct of the parties constitutes nothing more than a. holding over by the defendant for a few months on a month to month basis, and that such proof is insufficient to establish an exercise of the option under the provisions of the Statute of Frauds.

The weight of authority confirms the view that plaintiff’s evidence was insufficient under the Statute of Frauds and that the judgment of the trial court was correct and should be affirmed. The Special Commissioner so recommends.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the Court. The judgment is affirmed.

All concur.


author: JACK P. PRITCHARD, Special Judge.

text:
    CITY OF META, Missouri, a Municipal Corporation, (Plaintiff) Respondent, v. Leo HAGENHOFF, Clarence Sherril, Joseph Meyer, Mary Meyer, Leo Massman and Ida Massman, (Defendants) Appellants.
    No. 31065.
    St. Louis Court of Appeals. Missouri.
    Dec. 18, 1962.
    Henry BalkenBush, John P. Peters, Linn, for appellants.
    Robert L. Hawkins, Jr., and Graham & Hawkins, Jefferson City, for respondent.
   JACK P. PRITCHARD, Special Judge.

This is a suit for declaratory judgment that a proposed annexation of lands to respondent City of Meta, Missouri, be declared to be reasonable and necessary under the provisions of the Sawyer Act, Section 71.015 RSMo 1959, V.A.M.S. Judgment and decree in the trial court was for respondent City, from which appellants duly appeal.

Respondent has filed a Motion to Dismiss Appeal which was by this court ordered taken with the whole case upon oral arguments had on November 5, 1962. The basis of the Motion is appellants’ alleged failure to comply with Supreme Court Rule 83.05, V.A.M.R., in that it is said that (1) in their brief appellants have made a statement consisting of pleadings, proceedings, issue and a summary of the evidence, without a single reference to the transcript pages; and (2) a review of each witness’ testimony with reference to the transcript pages only where the witness’ direct and cross examination begins therein.

Reference to the minutes of this court reveals that on May 15, 1962, appellants’ original brief was ordered stricken from the files on this court’s own motion for appellants’ failure to comply with said Supreme Court Rule 83.05. Thereafter, on September 27, 1962, the instant brief for appellants was filed.

There is merit in respondent’s Motion to Dismiss Appeal. A casual inspection of appellants’ brief shows that the “Statement” starting on page two and ending at the middle of page six thereof has not a single reference to any page of the transcript, which consists of 288 pages in all, some 250 pages thereof being devoted to testimony of witnesses, trial court rulings and argument of counsel.

Surely, it could not be expected that this court should be compelled to search the transcript to substantiate appellants’ “Statement” and to find the relevant facts upon which an opinion herein could be based. Nor should counsel for respondent have the burden to determine from appellants’ brief the facts upon which appellants rely for their prayed relief, and to have to meet those facts in its own (respondent’s) brief. See Walker v. Thompson, Mo., 338 S.W.2d 114; Markowitz v. University City, Mo.App., 335 S.W.2d 455; and Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532.

The further objection is that concerning the review of each witness’ testimony in appellants’ brief immediately following the above mentioned “Statement”, there is no reference to the transcript as to where such testimony is set forth, other than where the direct and cross examination of each witness begins. This is further a noncompliance with Supreme Court Rule 83.05. For instance, the witness Rowan’s direct examination begins on page 27 of the transcript and goes on for some 36 pages. The brief wholly fails to allude to any testimony in the intervening transcript pages, and this is the same all the way through what is denominated in the brief as “Plaintiff’s Evidence” and “Defendants’ Evidence.” Nor does the argument contained in the brief of appellants supply the deficiency here since in the whole thereof there are but three page references to this voluminous record.

The provisions of Supreme Court Rule 83.05(c) and (d) here involved are clear, and the Bar should have no difficulty in following them in preparing briefs which would be fair to the opposing party, and which would aid our appellate courts in reaching a correct decision on the merits of the case. Such is the purpose of the rule. Walker v. Thompson, supra. But if the Bar has difficulty in following the rule as written, attention is called to the many excellent articles which give more detailed directions to the Bar concerning the preparation of appellate briefs. See Law Review Commentaries cited under Supreme Court Rule 83.05, Vol. 3, V.A.M.R., notable among which were written by Conkling, J., 10 J. of Mo.Bar 161 (Oct. 1954), and Stone, J., 15 J. of Mo.Bar 80 (Feb. 1959).

Appellants, though warned by their original brief being stricken herein, and having been given an opportunity to comply with said rule, have failed to file a sufficient brief. It is therefore ordered that respondent’s Motion to Dismiss Appeal be sustained, and the same is hereby dismissed.

RUDDY, Acting P. J., and J. MORGAN DONELSON, Special Judge, concur.

ANDERSON, P. J., and WOLFE, J., not participating.