text:
    STATE ex rel. State of Missouri, STATE HIGHWAY COMMISSION of Missouri, Plaintiff, v. Paul A. MAHON et al., Respondents, Oliver Doerflinger, d/b/a Oliver Oil Co., Appellant.
    No. 23416.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Ike Skelton, Lexington, for appellant.
    Harvey Burrus, Independence, for respondents.
   MAUGHMER, Commissioner.

This appeal was originally lodged in the Supreme Court. That court by its opinion (State ex rel. State Highway Commission v. Mahon, Mo., 343 S.W.2d 165) ruled it did not have jurisdiction and transferred the cause here. We believe the summar-ization of facts contained in that opinion to be complete and sufficient for our purposes. It is therefore adopted and incorporated herein.

In this case plaintiff condemned a tract of land containing 2.435 acres located on U. S. Highway 40 near Odessa, Missouri. Respondents Paul H. and Dolin Mahon were the owners of the land. Appellant, Oliver Doerflinger, d/b/a Oliver Oil Company, was in possession of the premises as lessee under a five-year written lease which was to expire on March 15, 1963. A filling station, building and a restaurant building were located on the premises. Appellant operated the filling station and had sublet the restaurant building to defendants Jesse H. and Edna Stenbell upon a month-to-month tenancy at a rental of $50 per month. Appellant was required to vacate the premises 42 months before the expiration of the lease.

The commissioners awarded damages for the appropriation of the property in the sum of $13,920. Separate exceptions were filed by appellant and respondents. There had been no trial of these exceptions at the time this appeal was taken. Plaintiff paid the amount of the award to the circuit clerk who issued a check in that amount payable to all defendants who were alleged to have an interest in this land. The parties were unable to agree upon a division of the money and respondents thereafter filed a motion in which they alleged that they were entitled to the entire award and prayed that the court so adjudicate. The court heard evidence offered by respondents and appellant (the Stenbells apparently making no claim to any part of the award), made a finding that appellant’s lease “had no value at the time of the taking or appropriation of said land by plaintiff,” and adjudged that the whole amount of the award be paid by the clerk to respondents. Appellant’s motion for judgment or 'in the alternative for a new trial was overruled and he has appealed to this court.

The lease provided that appellant should pay respondents a rental computed on the ■basis of “one (1) cent per gallon on each gallon -of gasoline dispensed on the premises and one-half (½) cent per gallon on each gallon of diesel fuel and kerosene dispensed on the premises, said rent being due and payable on the 10th day of each month hereafter.” The testimony indicated that the rent, so computed, averaged approximately $150 per month. Appellant testified that before he commenced business on the premises he spent $685 in repairing and painting the buildings; that he erected .signs and installed eight pumps and six 'storage tanks; that the cost of removing the signs, tanks and pumps was about $750; that he had expected to amortize all of those expenses over the 60-month period of the lease but was required to vacate after 18 months. He also testified that during the period he operated under the lease his average net profit was $451.44 per month; that during the remaining period of the lease his profit, computed according to his 18-months’ experience, would have been $18,860. An expert in mathematics testified that at an assumed interest rate of 4% the present cash value of appellant’s anticipated future profit during the 42-month period would be $16,900.

The State Highway Commission is authorized to condemn lands for highway purposes by the provisions of Chapter 523. (See also Secs. 227.120(13) and 226.270) V.A.M.S. The report of the commissioners appointed to assess the damages is subject to timely exceptions filed by either party. Secs. 523.050, 523.060. Section 523.050 provides that after written exceptions are filed “the court shall make such order therein as right and justice may require and may order a new appraisement, upon good cause shown.” However, the law is well established that when a party files such exceptions and asks for a jury to assess the damages, he is entitled to a jury trial as a matter of right (Sec. 523.060) and a formal order of court setting aside the commissioners’ report is not required. State ex rel. Highway Commission of Missouri v. Curtis, 365 Mo. 447, 283 S.W.2d 458, 464, 465.

It seems clear in this state that where there are different interests or estates in the condemned property, the proper course is to ascertain the entire compensation as though the property belonged to one person and then apportion this sum among the different parties according to their respective rights. The value of property cannot be enhanced by any distribution of the title or estate among different persons or by contract arrangements between the owner and a lessee. This question was reviewed by the Supreme Court en banc in State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 82, 69 A.L.R. 1256, and again in City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600. The reasoning and the result of those two cases on this point was recently summarized by the same court in State ex rel. State Highway Commission of Missouri v. Conrad, Mo., 310 S.W. 2d 871, 877, as follows: “ * * * the approved method is to assess in one sum the damages of all interests in a particular lot or tract, ‘leaving the owners of the fee, lessees, trustees, mortgagees, and sublessees to apply to the circuit court for apportionment of the damages between them accord* ing to their various interests.’ Such has been the routine procedure in many of our circuit courts for years.” In condemnation actions of this nature the judgment is in rem and not in personam. City of St. Louis v. Koch, 169 Mo. 587, 70 S.W. 143, 144; State ex rel. Scott v. Trimble, 308, Mo. 123, 272 S.W. 66.

In the usual civil suit the losing litigant does not pay nor is he required to pay until a final judgment has been entered against him. However, our legislative bodies decided that our State Highway Commission (among others granted the right of eminent domain) should not be required to await the final outcome of extended litigation before commencing construction of a needed highway and so enacted Section 523.040, which provided a method by which such delay might be eliminated. This section, after requiring that commissioners be appointed and directing that their report be filed with the clerk, continues: “ * * * and thereupon such company shall pay to the said clerk the amount thus assessed for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid; * * * “The fac.t that the owners of the constitutive interests may not agree as to the apportionment among themselves of the sum awarded is merely an incident growing out of such combined ownership for which the con-demnor is in no way responsible.” State ex rel. McCaskill v. Hall, supra, [325 Mo. 165, 28 S.W.2d 82] and State v. Conrad, supra. The Supreme Court (State ex rel. State Highway Commission v. Deutschman et al., 346 Mo. 755, 142 S.W.2d 1025, 1028) adopted the following quotation from School District of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 249 S.W. 51, 53, as descriptive of the status of the matter when exceptions to the commissioners’ report had been filed and were pending: “ * * * the report of the commissioners became functus officio and the cause then stood as though no commissioners had ever been appointed”.

When this appeal is considered we are quickly confronted with this question: Is the order (or judgment) entered a final judgment within purview of the statutes authorizing an appeal only from a final judgment or has this appeal been launched prematurely ? The Supreme Court in its transfer opinion, which considered only the question of jurisdiction, was cognizant of this question and commented : “It would appear that the apportionment between the owner and lessee could, in many cases, be more accurately accomplished at the time of or after the final determination of the amount of damages upon the trial of the exceptions. However, since a con-demnee is usually entitled to receive payment of the amount of the commissioners’ award before trial of the exceptions, it would appear that the instant parties may have been within their rights in seeking an adjudication concerning the amount, if any, of said award each was entitled to receive. For the purposes of this opinion we will so assume.” While this issue has not been raised by either respondents or appellant, it is for our consideration whether raised or not. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262(1).

When there is no controversy as to ownership, the landowner may withdraw the amount of the commissioners’ award when it has been deposited in the registry of the court, even though exceptions are pending. Likewise, when a final judgment is made finally fixing the amount of damages for the appropriation, if there is a dispute over distribution, the trial court may, when requested to do so, determine the proportionate share of each claimant and include such finding as a part of the final judgment. State ex rel. McCaskill v. Hall, supra; St. Louis Housing Authority v. Evans, Mo.Sup., 285 S.W.2d 550; City of St. Louis v. Moehlenhoff, Mo.App., 322 S.W.2d 155; State ex rel. State Highway Commission of Missouri v. Conrad, supra; City of St. Louis v. Senter Commission Co. et al., 233 Mo.App. 804, 108 S.W.2d 1070. We have been cited to no authority nor do we find any case where it was ruled that the amount of the commissioners’ award deposited with the clerk was subject to division between contesting claimants while exceptions to the award were pending and consequently no final judgment had been entered fixing the total amount of damages. In Edmund Realty Co. v. Walmer Bldg. Co., 8 Cir., 123 F.2d 54, 55, cited by appellant on the question of proper admeasurement of a leasehold interest, there was first a judgment rendered fixing the value of the whole property and the parties acquiesced. The court describing the situation, said: “After the award had been settled and paid into the registry of the court, the owner of the fee and the lessee each presented an intervening petition asserting its respective claims.”

The right of appeal is purely statutory. Section 512.020, V.A.M.S., insofar as i.t is material to the issues here, authorizes appeal “from any final judgment in the case.” See also Sections 511.020, 511.130. The general rule is that a final appealable judgment must dispose of all the parties and all the issues of the claim. Anderson v. Metcalf, Mo.Sup., 300 S.W.2d 377, 378.

We quote the following from Bays v. Lueth, Mo.Sup., 323 S.W.2d 236, 237: “ ‘The general rule is that a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for future determination. Bennett v. Wood, Mo.Sup., 239 S.W.2d 325, 327(3); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489(2); Deeds v. Foster, * * * (Mo.Sup., 235 S.W.2d 262). In the Deeds case it was said (235 S.W.2d 265) : “The rule stated applies except for separate final judgments expressly ordered under Supreme Court Rule 3.29 (42 V.A.M.S.).” (Italics ours.) The purpose of the general rule is to prevent the piecemeal presentation of cases on appeal, or in detached portions. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597.’”

In State ex rel. State Highway Commission v. Smith et al., Mo.Sup., 303 S.W.2d 120, 122, 123, the State Highway Commission had instituted condemnation proceedings involving a right-of-way easement across a tract of land, on which was located a building housing machinery and equipment used as a factory. Commissioners were duly appointed and filed their report. Defendants and the Highway Commission both filed timely exceptions to the report of the commissioners, each demanding a jury trial, and the exceptions were still pending. Defendants filed a motion, asking that the machinery and equipment on the premises condemned, be ruled to be part of the condemned property. The court heard evidence on the question, took the matter under advisement and later entered an order overruling the motion, from which order the defendants appealed. The court said: “The report of the commissioners appointed to assess the damages is subject to timely exceptions filed by either party (Secs. 523.040, 523.050, 523.060); and we find no authority for an appealable judgment as long as the controversy between the condemner and landowner is pending on exceptions to the commissioners’ report.” (Italics added.) Later on, the court said this: “An order on a part of a claim or on issues not disposing of the whole of a claim is not a final judgment. We consider the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim, to be the judicial unit for an appeal. Claims are not for review upon appeal piecemeal or in detached portions. (Citing cases)”. It was held in that case that the appeal was premature and it was dismissed.

Suppose we should assume jurisdiction, take and decide this appeal on the merits of the controversy presented. Suppose further that thereafter the case is tried de novo, new and additional evidence is presented as to the value of the leasehold and the jury returns a verdict fixing the amount of damages at $20,000. We think the trial court should then when all of the evidence is in and when the amount of damages has been finally fixed, determine the value, if any, of the leasehold and incorporate such finding in the final judgment. Clearly too, under such assumed contingency, either litigant could appeal and if the judgment were in excess of $15,000, this court would not even have jurisdiction of the appeal. Moreover, all interim adverse rulings by the trial court on motions or in the form of orders entered before final judgment, remain open for appellate review until after entry of the final judgment. The complaining party is not required to, and actually may not, appeal until all issues have been resolved and the whole result has been incorporated into a final judgment.

The writer of this opinion dislikes very much to deny a decision on the merits of any appeal. However, it seems quite clear that the order (or judgment) appealed from is not a judgment disposing of all the issues and leaving nothing for future determination. If accepted, we would be hearing an appeal piecemeal or in a detached portion. The entry made does not even purport to settle all issues in this lawsuit. A jury trial de novo remains impending. Further proceedings in the trial court may and likely will lead to a further appeal as to which this court might not even have ⅜ risdiction.

Defendant’s appeal is premature and is dismissed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: BROADDUS, Judge.

license: Public Domain

text:
    Ruth MITCHELL, Appellant, v. Russell MITCHELL, Respondent.
    No. 23346.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.
    C. M. Hulen, C. M. Hulen, Jr., Moberly, for appellant.
    Roy W. Brown, Haskell Imes, Blackford, Imes, Compton & Brown, Kansas City, for respondent.
   BROADDUS, Judge.

This is an appeal by the plaintiff from the order of the Circuit Court modifying a decree of divorce as respects the custody of a minor child. -

The action for divorce originally filed in the Circuit Court of Randolph County was sent to Macon County by change of venue. A daughter had been born to the parties on April 19, 1948. A decree of divorce was entered in plaintiff’s favor on April 2, 1958, awarding general custody. of the child to plaintiff “with rights of reasonable .visitation to defendant, at the home of the parents of plaintiff, at reasonable times and at times convenient to plaintiff.” The decree also awarded plaintiff the sum of $50 per month for the support of said minor child. The divorce suit was bitterly contested and reached this court being reported in 319 S.W.2d at page 906.

On May 20, I960, the defendant filed his motion to modify the divorce decree, and on September 16, 1960, a hearing was had on said motion. At the conclusion of that hearing the court entered an order modifying the divorce decree in the following particulars:

“That the defendant shall have the physical custody of his minor child, Beverly Jean, on September 24, 1960 from 2:00 p. m. until the following Sunday at 7:00 p. m. and each second Saturday thereafter of each month beginning at 2:00 p. m. and ending at 7:00 p. m. the following Sunday, .and on Christmas Day of each year from 2:30 p. m. to 8:00 p. m. for the purpose of a visitation at the home of his parents, Mr. and Mrs. Robert Mitchell.

“It is further ordered that the defendant will pick up the minor child, Beverly Jean, at the time specified at the Merchants Hotel at Moberly, Missouri, each visitation day and return her to the Merchants Hotel at the end of each visitation period.

“It is further ordered beginning June 15, 1962 on condition that defendant has fully complied with all orders of this court concerning child support and costs and post a bond in the sum of Five Hundred Dollars ($500.00) so long as defendant is a nonresident of the State of Missouri, he shall be permitted to have the physical custody of the minor child for a two week period-between June 15th and August 31st, 1962 for a vacation trip only, said time to be agreed upon by the parties; otherwise by the court upon application of either party,

“It is further ordered that after June 15, 1962 defendant shall have the physical custody of said minor child on the second Friday of each month from 6:00 p. m. to the following Sunday at 7:00 p. m. on condition that the defendant post a bond in the sum of Five Hundred Dollars ($500.00) so long as he is a non-resident of the State of Missouri.

“It is further ordered that defendant be permitted to talk to the minor child by .telephone at all reasonable times.

“It is further ordered that the plaintiff will furnish proper clothing for the minor child at each visitation period and the defendant shall return same in reasonably good condition.”

At the time of the trial of the divorce suit plaintiff worked in Moberly but resided with her parents at Higbee in Randolph County. After the termination of the divorce suit in January, 1959, plaintiff rented a six-room house in Higbee where she has since been residing with the child.

Prior to the commencement of the divorce action, the parents of defendant had taken care of the child for approximately nine years, during the daytime while plaintiff worked, and would occasionally care for the child during the nighttime. They also took care of the little girl during the times she had the measles and scarlet fever. During all that period of time the relationship between the child and the parents of defendant was “very close” and “kindly.” From the date of the divorce in April, 1958, to January, 1959, defendant’s parents had the child in their custody; thereafter, down to date the child has been in the custody of plaintiff.

At the time of the hearing on defendant’s motion, defendant was in arrears in the payment of child support, alimony and court costs. He remarried on November 21, 1959, and now resides in Kansas City, Kansas.' His present home consists of a large four-room apartment in a nice part of Kansas City, containing one bedroom and one front room with a divan which makes into a bed; the home is a house for two families, one family living downstairs and defendant and his wife living upstairs. There are no children born of this second marriage. Defendant has worked for Navajo Freight Lines as a trailer-tractor driver for approximately two years as of October 28, 1959, at a salary of $2.65 per hour for forty hours, plus any overtime pay which he may receive. His net take-home pay is approximately $350 per month. His wife’s average net.income is about $180 per month.

Since the custody of the child was changed to plaintiff in January, 1959, defendant attempted to visit with the child in plaintiff's home, and was told that he “wasn’t welcome, to stay away.” Defendant called on the telephone to arrange visits with the child and when defendant would arrive from Kansas City, he was told by plaintiff that she had changed her mind, and that he couldn’t see the child. Plaintiff would sometimes bring the child to Moberly, and would refuse at times. While plaintiff and the child were visiting with defendant and his present wife, plaintiff would shun defendant’s present wife, and would refuse to speak to her. Defendant has never been alone with the child, and the child has not been allowed to visit with defendant’s parents in the home of defendant’s parents. Defendant was never allowed to visit the child in plaintiff’s home. On one occasion, the child’s birthday, defendant visited with the child at the home of plaintiff’s aunt, Louise Lyons, at which time the defendant suggested that he and plaintiff and the child go to Reeds Corner for a birthday dinner. The suggestion was refused by plaintiff. During February, 1959, defendant called plaintiff every weekend and requested to see the child, and was allowed to see the child twice for about thirty minutes each, and was denied twice.

Defendant also stated that he could not say definitely how many times he had requested to see the child between March and December of 1959, but that he did not let a month go by without making a request. Sometimes his requests were complied with and at other times ignored; that during the period from January 1, 1960, to September 16, 1960, he saw the child four or five times.

Plaintiff testified that she has never refused to allow defendant to visit with the child when it was convenient to plaintiff to do so; when to allow defendant to visit would interfere with plans already made, plaintiff would refuse to allow defendant to visit with the child. However, plaintiff would sometimes break plans to allow defendant such visits. Plaintiff also testified that she has refused to let defendant visit with the child in the home of his parents, and has refused to leave the child alone with defendant, and to let the child out of her sight with the defendant; that she has never refused to let the child talk with defendant on the telephone; that she knows of no specific act or happening to cause her to fear for the child’s safety, although defendant had upset the child at times; that she would fear for the child’s safety if it were to visit in defendant’s home alone, and she (plaintiff) would be a “nervous wreck.”

Plaintiff contends that the evidence does not show any new facts upon which a change in the custody of the child can be made. She relies upon the rule announced in many cases that the moving party must show that there has been a change of facts or circumstances arising since the rendition of the original decree in order to obtain a modification.

It must be kept in mind that the order appealed from does not change the general custody of the child. The original decree was only modified with respect to visitation privileges. This court announced in the case of Phipps v. Phipps, 168 Mo.App. 697, 154 S.W. 825, that where the order merely relates to visitation privileges only slight changes in the conditions arising since the original decree was entered will justify the order. At the time the divorce was granted plaintiff was residing at the home of her parents. In view of that fact it was only natural that the trial court would grant defendant the “right of reasonable visitation in the home of the parents of plaintiff.” However, that situation no longer exists. Plaintiff has rented another house in Higbee where she lives with the child. When defendant attempted to visit the child in plaintiff’s home he was told that he “wasn’t welcome — to stay away.” He has only been able to visit with his daughter on sidewalks, or in restaurants or drugstores. In our opinion the evidence discloses such a change of circumstances since the original decree was entered as would justify the court’s order. This view finds support in the cases of Reed v. Hunze, 233 Mo.App. 845, 109 S.W.2d 908 and Perr v. Perr, Mo.App., 205 S.W.2d 909.

The rule is well settled that the finding of the trial judge on motion to modify should not be lightly disturbed, and should, in fact, be deferred to, unless it is .apparently in conflict with a clear preponderance of the evidence and discloses a manifest abuse of judicial discretion. Salkey v. Salkey, Mo.App., 80 S.W.2d 735, 740. We have read with interest the court’s oral finding made at the close of the evidence. It shows a clear conception of the evidence, a desire to further the best interest of the child, and to deal fairly and kindly with her parents.

The order modifying the decree should be affirmed. It is so ordered.

All concur.


author: RUARK, Judge.

text:
    LeRoy KEATON, Plaintiff-Respondent, v. Walter GOOD, Defendant-Appellant.
    No. 7979.
    Springfield Court of Appeals. Missouri.
    Oct. 12, 1961.

      Ralph M. Crow, Eugene E. Northern, Breuer, Northern & Crow, Rolla, for defendant-appellant.
    T. A. Shockley, Waynesville, Claude T. Wood, Richland, Harold S. Hutchison, Vienna, for plaintiff-respondent.
   RUARK, Judge.

This is an appeal from a plaintiff’s judgment on verdict arising out of a collision between a mare which plaintiff was riding and a pickup truck being driven by the defendant. Plaintiff being the verdict holder, we attempt to sort out and relate the facts which we believe to be most favorable to his verdict.

The event occurred at a night horse show sponsored by a civic-service organization at Crocker, Missouri. The arena or track consisted of a woven-wire fenced-in area, roughly in the shape of a horseshoe, with the toe or calk to the east and the heel or open end on the west. The entry gate for the contestants lay on the extreme south end of the west side or heel of the horseshoe and the exit gate was at the extreme north end of the heel. Both these gates were 12-14 feet wide, divided in the middle so they could be swung back to permit entry and exit of the horses. The finish line was some 10-15 feet inside the north gate. Spectators’ cars were parked around the horseshoe arena, although, necessarily,' a space was left for the gates. The line of cars parked on the north side of the horseshoe extended on west from the heel of the horseshoe for a distance we are unable to determine..

Concerning’ourselves with only the parking on the west end, a row of cars' was parked at the fence between, the gates.. Another row of cars was parked some distance to the west, thus leaving a space between the two rows which is variously referred to •as an open area for participants in the events, a lane, a path, a road, an alleyway, -a runway. This lane “curved” and. the width “varied how far the cars were pulled •down there.” Different witnesses put the width as low as 20-30 feet and as high as •66 feet. Besides being used by .the contestants, this lane had been used by some -of the spectators in driving to their parking space on the south of the arena. Somewhere at the north end of the line of cars ■on the west side of the lane or somewhere in the line extending westward from the north side of the arena, there had been left •a gap or open space which spectators used in driving in. But where that space was (“over here,” “in there”), or whether it still remained open at the time of plaintiff’s injury, we are unable to say. The picture ■exhibit shows the arena to have been lighted with flood lamps, but we have no informa-■tion as to whether or not this area outside was lighted.

Plaintiff had entered his mare in the last -event of the evening. Although the mare, a high-spirited animal with a sweet and gentle disposition, is the chief actress and tragic heroine in this drama which fills a transcript of 360 pages, the evidence leaves her nameless. The event in which Nameless ran was a timed event in which each contestant ran singly and against time. The “pattern” of the race was that the horses ■entered the south gate from a running start, circled the horseshoe arena and (presumably) on the outside of three barrels strategically placed, near the fence, crossed the finish line at top speed, then went on out through the north exit gate. On this home stretch of the race the horse would be run-' ning mostly westward but at a slant or angle to the south. “The fence and track before it reaches the exit gate veers to the southwest.” Once put the exit opening and past the swung-back half of the gate and the end car of the row of cars parked against the west fence, the contestant curved farther to the south in the lane or area outside. There was considerable evidence on behalf of plaintiff that the contestant “has got to. make a turn” after he comes out the gate. At frequent intervals during all the evening the loudspeaker had been blasting the admonition to “keep the gates clear,” or “keep the area open,” “keep that alley or * * * that exit clear.” Plaintiff had heard these warnings throughout the evening and said, “It was supposedly to have been guarded, but I never seen it.” He “understood” guards were there, although the management had not told him there, were; and in fact the evidence shows that guards were stationed on either side of the exit gate for the purpose of keeping them clear for the contestants.

Defendant was a spectator. When he arrived at the show he drove his pickup truck down this areaway we have been talking about and parked on the south side of the horsehoe. About the time the last race was to begin and the participants assembled outside the south gate, defendant decided to leave. He gathered his family and started to go out by the same course he had entered. Nameless was the first runner in this last race of the evening. She started some distance back west from the south gate, and another horse started running beside her “a couple of jumps.” About the time Nameless reached the starting line inside the gate and the horse which had started with her was being pulled up and to the side outside the gate, the defendant came around from the south and drove so close in front of the starter horse that it was compelled to rear up over it. (Plaintiff says he did not then see the truck.) While Nameless was circling the track (she ran the course in approximately 10 seconds), the defendant in his truck worked his way through the men and horses in the areaway around the south gate and “up to” the north or exit gate. During this period the loudspeaker was broadcasting warnings to keep the area clear, and several people shouted warnings to defendant to “get that pickup out of the way.” Nevertheless, defendant continued. (As stated, this all happened within the space of a few seconds.) One of the guards at the south gate ran out and threw his hands up to stop the defendant. Nameless, running hard, close to the north fence, came out of the exit gate on a “veer” or slant to the left, “turned in the natural pattern, the way they were running that night,” and struck the right front fender of the truck “at about a 45-degree angle” with her right shoulder. After the horse left the exit gate the crash was almost instantaneous. “Just [snaps fingers] you could judge in a second of time. Just like that [snapping fingers].” From this collision resulted the injuries to mare and man. Plaintiff says that the truck was still moving when the collision occurred. Others said it had just stopped. Others weren’t sure whether or not it was completely stopped.

One of the hotly disputed issues was the •exact location of the truck at the time Nameless came running out of the gate. It was some few feec west of the line of cars parked along the west fence. Some witnesses say it was about the center of the open lane, “right in the main runway.” One of plaintiff’s witnesses said the collision occurred about 20 feet west of the gate. The pickup was “just entering the horse lane,” “very little south” of the south end of the gate. Two of plaintiff's witnesses said the pickup “pulled in front of the horse” and there was not room for plaintiff to get around. As one of them put it, “If you get to the lane and there is something on each side of you and they park that truck there and there isn’t any way for your horse to get up there, how are you going to get up there ?” After the collision it was necessary to move the truck before the race could be continued because it was “in the way of” the other contestants. There was evidence that Nameless was trained for racing, not as a roping horse, and, although she was easily controlled, she could not be safely stopped! from running at top speed within the approximately 35 feet which she had traveled from the finish line inside the gate to the truck.

As to the exact location of the truck in reference to the normal line of travel of the mare coming out the gate, the surrounding circumstances in reference to the course, direction, and width of the area immediately outside the gate, and the parking of cars, we have had some difficulty because plaintiff’s diagram exhibit, to which a number of witnesses referred, is not before us. Moreover, over and over the testimony in reference to this diagram (and, as a matter of fact, also to defendant’s diagram) is replete with Such baffling remarks as (the witnesses evidently indicating) “right in here,” “at about this point,” “back here,” “from here to here,” “there were also cars out in here,” et cetera. Furthermore, our confusion, and probably the witnesses’ also, is compounded by questions of counsel such as, “How close was the horse to the pickup truck when the collision occurred?”

Defendant’s evidence was that the truck was farther south of the gate and that Nameless made quite a wide circle before colliding with the truck; that plaintiff was-whipping Nameless as she came out the gate. Plaintiff’s evidence was not only that plaintiff was not whipping her but that he had no whip. Defendant said he did not hear anyone shout at him. He heard the loudspeaker after he passed the south gate, did not stop when he heard it, but continued “until I got down there to the gate.” Plaintiff’s evidence was that after the collision defendant said, “Move the pickup, take the boy to the hospital, wherever he has to go, and I will take care of everything.” Defendant denied making this statement. His wife also said he did not make such statement. She was not present all of the time but she was certain he didn’t say it for the cogent reason that “I have been married to him for fourteen years.”

Most of appellant’s claims of error are in respect to plaintiff’s instruction 1, which is as follows:

“The Court instructs the jury that if you believe and find from the evidence that on or about the 22nd day of August, 1958, the plaintiff had entered a mare in the horse show at Crocker, Pulaski County, Missouri, and if you further find and believe from the evidence that the plaintiff entered his mare at the south gate of the track at said horse show and proceeded around said track to the north gate and if you further find and believe from the evidence that at the time the mare which the plaintiff was riding reached the north gate and was leaving the track mentioned in evidence, said mare was going at full speed, and if you further find that the plaintiff was at all of such times exercising ordinary care for his own safety and for the safety of his horse, and if you further find and believe from the evidence that at the time the said mare being ridden by plaintiff reached the north gate, mentioned in evidence, the defendant carelessly and negligently drove and operated his pickup truck up to said north gate and directly in front of plaintiff’s mare and so near the said mare that it was impossible for plaintiff to stop his mare or swerve to avoid a collision with said pickup truck, and if the jury further finds that at the time the defendant so drove his pickup up to said north gate and directly in front of plaintiff’s mare, if they so find, that the defendant knew, or should have known by the exercise of ordinary care, that a collision between his vehicle and the plaintiff’s mare might occur, and if you further find and believe from the evidence that the defendant carelessly and negligently permitted his truck to come into violent collision with the mare which plaintiff was riding and that as a direct and proximate result thereof a collision occurred between the defendant’s said truck and the mare which the plaintiff was riding and if you further find and believe from the evidence that as a result of said collision, if you so find, the plaintiff was thrown from his said mare and if you further find and believe from the evidence that as a result of said collision, if you find there was a collision, the plaintiff sustained injuries and the plaintiff’s horse was injured and damaged, then you should find the issues for the plaintiff and against the defendant on the plaintiff’s verdict and your verdict should be for the plaintiff and against the defendant on the plaintiff’s petition, provided that you do not find that the plaintiff was guilty of contributory negligence as set forth in Instructions Nos. 6 & 7.”

The first complaint against the instruction is that it did not hypothesize the facts to support a finding of negligence and then direct the jury to determine that such facts constituted negligence. Headrick v. Kansas City Southern Ry. Co., Mo., 305 S.W.2d 478; McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; see also Kitchen v. Pratt, Mo.App., 324 S.W.2d 144, 148; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 146. But in each of those cases the facts so hypothesized were such that the conduct, either affirmative or negative, of the defendant might or might not have constituted negligence, and thus negligence itself became a jury question. In the Head-rick case it was a question of whether the method used was proper; in McCollum v. Winnwood Amusement Co., whether the construction of a slide was such as to constitute negligence; in Evans v. Colombo, whether being on the wrong side of the road following a skid was negligence. In Kitchen v. Pratt the defendant was on the wrong side of the road after a blowout. In such cases, since the hypothesization of the evidence did not include facts which necessarily excluded all but one theory as to the cause of the injury, the defendant was not guilty of negligence as a matter of law.

But where the facts properly hypothesized, if found to be true, call for only one conclusion, to-wit, that of negligence, and that conclusion is one with which all reasonable men could not disagree, then negligence results as a matter of law and it is not necessary to submit the question of negligence to the jury. Butler v. City of University City, Mo.App., 167 S.W.2d 442 (14); Connole v. East St. Louis & S. R. Co., 340 Mo. 690, 102 S.W.2d 581, 590; Cole v. Long, 207 Mo.App. 528, 227 S.W. 903, 905-906; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045, 1052; McCollum v. Winnwood Amusement Co., supra, 59 S.W. 2d 693, 697. As a matter of fact, such submission has been said to be improper. Bagby v. Culberson, Mo.App., 273 S.W. 209(2).

Now we return to the hypothesization which carried the plaintiff’s theory.

(a) The mare was entered in a horse show race, starting at the south gate, went around the track, and was leaving the north gate at full speed.

(b) The defendant carelessly and negligently drove his truck up to the north gate and directly in front of the mare and so near that it was impossible for plaintiff to stop or swerve her and so avoid a collision.

(c) At the time defendant drove in front of the mare he knew or should have known by the exercise of ordinary care that a collision might occur, and the defendant carelessly and negligently permitted his truck to come into violent collision with'the mare, and that as a direct result thereof a collision occurred, et cetera.

We believe that the hypothesization submitted a state of facts which, if found to be true, reasonable men would have to agree was negligence. To deliberately drive in the path of a racing horse under those circumstances, knowing a collision may occur,, is negligence as a matter of law. Appellant cites no authority to the contrary and makes no contention that plaintiff did not make a submissible case on primary negligence. It is true that there was disagreement in regard to certain facts, the principal bone of contention being the location of the truck at the time of collision. But there is no disagreement or divergence in either evidence or theory as to how the truck came to be in such location, wherever it was. By all the evidence the defendant voluntarily drove it there; hence there was no divergence, issue, or contention as to that fact comparable to the skid or blowout cases, or the proper method used or the proper construction of an article. We overrule this contention.

The next contention is that the instruction is broader than the pleadings because it requires a finding that the defendant knew or should have known by the exercise of ordinary care that a collision between his vehicle and the plaintiff’s mare might occur, and thus submits an issue not pleaded.

It would appear to us that, if in fact chargeable knowledge was not pleaded, defendant’s attack should have been on the petition, not on .the instruction, and that the requirement of a finding of chargeable negligence in addition to the other facts submitted only added a further burden and hence was not reversible error.

A statement or finding that the defendant negligently caused or permitted an unsafe condition is equivalent to a statement or finding that the defendant ■knew or should have known the condition to exist.

An instruction need not follow the language of the pleadings. It is sufficient if it falls within the fair implication or “within the purview” of the petition (Barnes v. Elliott, Mo.App., 251 S.W. 488, 490), its “legal intendment,”. (Sanders v. Armour & Co. of Delaware, Mo.App., 292 S.W. 443, 445), or what it “inferentially” charges (Finn v. United Rys. Co. of St. Louis, Mo.App., 267 S.W. 416, 420), and, of course, is justified by the evidence.

We think the petition furnished a basis for including the submission of actual or imputed knowledge. It charged that the defendant carelessly and negligently drove up to the gate and in front of the mare and, by driving his truck into the runway of horses, carelessly and negligently permitted his truck to collide with the mare, although he had been warned to keep all vehicles away from the gate and out of the way of the horses being raced; and that owing to his carelessness in driving his truck into the path of the mare the collision occurred.

The cases relied upon by the appellant are those in which the instruction permitted recovery for an act or thing different from that pleaded as a basis for recovery in the petition.

We can find no room for the contention that the instruction was broader than the pleadings.

It is next contended that the instruction was not based on facts in evidence because there is no evidence (a) that defendant drove the truck “up to” the north gate, (b) that defendant drove his truck directly in front of the mare, or (c) that he drove so near the mare that it was impossible for the plaintiff to swerve his mare and thus avoid a collision.

The words “up to” (a colloquial expression, State v. Flutcher, 166 Mo. 582, 66 S.W. 429) have a relative meaning depending upon the sense in which they are used and understood. There was no contention that defendant drove his truck so that it touched or entered the gate. All the evidence is that he drove it up the areaway and to somewhere in the immediate vicinity of the gate. The defendant himself testified that “I kept driving until I got down there to the [north] gate.” We see little difference in the expressions “up to the gate” and “down there to the gate.” Certainly the defendant didn’t mean by the words “down to” to say more than he was somewhere in the vicinity of the gate. The gander should be entitled to use the same language as the goose. “Up to” could be interpreted as close, but not quite, or approximately even with the south end of the gate. We think that in view of the evidence and the obvious contentions of the parties the jury could not have been misled.

As to the contention that there was no evidence that the defendant drove in front of the mare, there was direct testimony that the defendant did so.

As to whether there was evidence that it was impossible to swerve the mare, plaintiff testified the truck was still moving. Nameless, trained to race, but not as a roping horse, crossed the finish line at top-speed. She couldn’t have been stopped within the distance necessary to avoid collision. The collision happened almost instantaneously. “The pickup * * * was pulled up here so the horse didn’t have room to get around.” “Sure he would have to get out past these cars, but the pickup was pulled up there setting right there. How could he get away?” We think this and other evidence justified the inference that the plaintiff did not have time, space, or opportunity to swerve his mare so as to avoid the collision. We think the evidence and the favorable inferences to be drawn therefrom justified the inclusion of such words in the submission.

The next contention is that the instruction is erroneous because it did not require the jury to find as an essential factual issue that the plaintiff exercised ordinary care after he left the north gate.

Plaintiff’s instruction in regard to that was that if the jury found * * * “that plaintiff entered his mare at the south gate * * * and proceeded around said track to the north gate * * * that at the time the mare * * * reached the north gate and was leaving the track * * * said mare was going full speed and * * * plaintiff was at all such times exercising ordinary care for his own safety and for the safety of his horse” (then follow the collision, injury, and direction of verdict) * * * "provided that you do not find that the plaintiff was guilty of contributory negligence, as set forth in Instruction Nos. 6 & 7.”

Defendant’s instruction 6 submitted contributory negligence in that after crossing the finish line and passing out the north gate the plaintiff permitted his mare to continue at a fast speed before bringing her under control, or to a stop, or permitted the mare to turn to the left of the area reserved for participants in the race and to enter an area south of such, where plaintiff knew or should have known that persons and vehicles were likely to be, and that plaintiff knew or should have known that by permitting the mare to enter such south area at a fast speed before bringing her under control, he and his mare were likely to be injured. If plaintiff was so contribu-torily negligent, then defendant was entitled to a verdict even though defendant was negligent under other instructions.

Defendant’s instruction 7 submitted the proposition that if plaintiff saw the truck in time to avoid the collision by stopping or turning his horse aside and failed to use ordinary care in stopping or turning aside, then the verdict should be for defendant even though the defendant was also negligent.

Defendant argues that plaintiff’s instruction leaves a hiatus in the negation in that the jury could have found that after the plaintiff left the exit gate the plaintiff was negligent, and yet, under the instruction, he could recover.

We do not have to decide whether the statement in plaintiff’s instruction (that plaintiff was at all such times) might possibly be interpreted to cover the exercise of reasonable care only up to and including the time the mare passed out of the gate, thus leaving in limbo that period after the mare passed out the gate, because the defendant’s two contributory negligence instructions dealt with what happened outside the gate and contained defendant’s theories of contributory negligence. Plaintiff’s instruction expressly limited the direction of a verdict by a condition that the jury not find plaintiff guilty of contributory negligence as set forth in such instructions. We think this reference was sufficient. Hence we find no merit in this assignment.

Appellant’s final contention is that the court should have sustained defendant’s motions for directed verdict because “all the evidence showed” that plaintiff was guilty of contributory negligence as a matter of law in that:

Plaintiff rode his mare, at top speed, still whipping her, out of the north exit gate into an area where he knew there were other people, horses, and vehicles; and, although he knew that all evening the loudspeaker had been warning to keep the gates clear prior to and at the time of the race, he did not make any investigation as to whether the gates and areas were guarded.

The plaintiff verdict-holder is entitled to the benefit of all favorable evidence in the case and inferences which can reasonably be drawn therefrom, unless such favorable evidence or inferences are contradicted by plaintiff’s own testimony or are opposed to plaintiff’s theory of the case.

We cannot here pass upon the weight of the evidence. Contributory negligence is a question of fact for the jury unless the evidence is so strongly against the plaintiff as to leave no room for reasonable minds to differ on the issues submitted to the jury.

Plaintiff, a participant in the sport of racing, assumed the ordinary risks inherent in the activity in which he was engaged, but he did not assume those risks which were associated with the negligence of others. Page v. Unterreiner, Mo.App., 106 S.W.2d 528; Schamel v. St. Louis Arena Corporation, Mo.App., 324 S.W.2d 375; McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866.

The sponsors of the affair owed the plaintiff the duty to exercise care commensurate with the circumstances to see that no injury was occasioned to him. Edling v. Kansas City Baseball & Exhibition Co., 181 Mo.App. 327, 168 S.W. 908, 910; Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488. And plaintiff was not required to make a critical inspection of the arrangements in advance but had the right to rely upon the assumption that due care had been taken for his safety, until the danger became so glaring and obvious that no reasonably prudent person would have subjected himself to it. 65 C.J.S. Negligence § 118c, p. 715; Humbyrd v. Spurlock, Mo.App., 345 S.W.2d 499, 503, and cases cited in footnote 7.

It is unquestionably true that Nameless was running at top speed when she crossed the finish line, but as to the plaintiff’s still whipping her when she went out the gate there is decided conflict. Plaintiff’s evidence is not only that he did not whip the mare, but that he carried no whip.

As to whether there were guards at the gate, the evidence shows there were such. Had plaintiff made an investigation in order to determine such fact it would not have changed what happened.

As to there having been people, horses, and vehicles in the “area,” vehicles were parked on each side of this area or lane and north of the exit gate. Other than that there is no evidence of any As to there having been people, horses, and vehicles in the “area,” vehicles were parked on each side of this area or lane and north of the exit gate. Other than that there is no evidence of any

It is urged that the continuous warning by loudspeaker to “keep the, gates clear” was a warning to plaintiff that the gates were probably blocked. We think the continued admonition of those in charge to the spectators to “keep the gates clear” could have been accepted by him as some assurance that those in charge were alert in the discharge of their duty to keep the exit free. At any rate, had plaintiff made any investigation prior to the race he would not have found defendant’s truck there.

Nor can we say plaintiff was guilty of •contributory negligence as a matter of law in not seeing the pickup truck approaching the north gate. He was occupied with riding Nameless at top speed and keeping her outside the barrels. For only a few seconds while on the home stretch was he facing the west. He was inside a floodlighted area, and between him and the “lane where the truck approached was a row of cars. Had he seen the truck going north on the lane it is at least a jury •question as to whether he would have reason to expect, until it was too late, that it would continue into the space where the ■collision occurred.

We cannot say that the plaintiff was guilty of contributory negligence as a matter of law.

The judgment is affirmed.

STONE, P. J., and McDOWELL, J., -concur.

      . In all the mass and welter of the evidence we have not been able to discover where these barrels were placed.

      . The reason for having another horse start is to urge the contestant horse to start at a fast speed.

      . In Smith v. Wabash R. Co., Mo., 338 S.W.2d 16(2), an instruction which hypothesized the facts and then required a finding that appellant “was thereby negligent” was approved.

      . Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433(1, 2, 9); Hooper v. Conrad, 364 Mo. 176, 260 S.W. 2d 496, 500.

      . See Rueter v. Terminal R. Ass’n of St. Louis, Mo.App., 261 S.W. 713, 717; Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 1026, 61 A.L.R. 1269.

      . See Stupp v. Fred J. Swaine Mfg. Co., Mo., 229 S.W.26 681, 685; State ex rel. Central Coál & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722.

      . As to whether the failure to negative contributory negligence is an omission of “an essential element” of plaintiff’s claim, see Shepard v. Harris, Mo., 329 S.W.2d 1(6).

      . If so, the addition of the little word “such” could be a damaging excess of wordage.

      . Scott v. Missouri Insurance Co., Mo.App., 246 S.W.2d 349, 354(4); Sollars v. Atchison, Topeka & Santa Fe R. Co., 239 Mo.App. 410, 187 S.W.2d 513, 518 (3); Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14, 19; Keene v. City of Springfield, Mo.App., 152 S.W.2d 220, 223; Bashkow v. McBride, Mo.App., 177 S.W.2d 637, 639; Muehlhausen v. St. Louis R. Co., 91 Mo. 332, 2 S.W. 315, 321; see Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 23; see State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527, 531.

      . McViear v. W. R. Arthur & Co., Mo., 312 S.W.2d 805, 65 A.L.R.2d 785; Pieper v. Lewis, Mo.App., 321 S.W.2d 4; Willis v. Wabash R. Co., Mo., 284 S.W.2d 503. Banning, Mo., 329 S.W.2d 647, 652; Pender v. Foeste, Mo., 329 S.W.2d 656, 659.

      . And there is no exact test or formula by which such condition exists. Each case must be determined upon its own facts. Coats v. Sandhofer, Mo.App., 248 S.W.2d 455(7); Philippi v. New York, Chicago & St. L. R. Co., Mo.App., 136 S.W.2d 339, 341.

      . Adkins v. Sutherland Lumber Co., Mo. App., 307 S.W.2d 17, 18; Daniels v.


author: CROSS, Judge.

text:
    KAISER ALUMINUM & CHEMICAL SALES, INC., a California corporation, Respondent, v. LINGLE REFRIGERATION COMPANY, Inc., a Missouri corporation, Appellant.
    No. 23349.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Robert F. Middleton, Russell, Brown & Middleton, Nevada, for appellant.
    Don Kennedy, Nevada, for respondent.
   CROSS, Judge.

At defendant corporation’s request, plaintiff corporation manufactured three dies for forming aluminum extrusions and extruded a quantity of aluminum pieces for defendant’s use in manufacturing refrigerator doors. The extrusions were delivered to and accepted by defendant — the dies were retained by plaintiff. Plaintiff sues to recover from defendant an alleged unpaid balance of $410 on the price of the order. Defendant appeals from a judgment entered on a jury verdict for $410 and interest in favor of plaintiff.

The petition pleads alternative grounds for recovery, i. e., either on (1) an express contract, or (2) an implied contract arising from defendant’s order for the dies and extrusions and plaintiff’s compliance therewith. The sum of $410 (and interest) is claimed by plaintiff in either event.

There is little factual dispute except as to whether plaintiff or defendant should have possession of the dies. Defendant’s refusal to pay the demanded price balance is based on its claim to ownership of and right to possess the dies, which plaintiff denies.

The transaction was initiated at defendant’s business office and grew out of negotiations between Mr. John T. Pertile, an engineer representing plaintiff corporation, and Mr. C. M. Lingle, defendant’s president. Mr. Pertile proposed to furnish the dies and extrusions. After discussion and the preparation of sketched plans for forming special dies, Mr. Lingle placed a purchase order, on behalf of defendant, for the three dies and for a quantity of aluminum extrusions, to be formed by each die. The order was typed on defendant’s “Purchase Order” form at the direction of Mr. Lingle, by his secretary, was dictated by Mr. Pertile, was signed by Mr. Lingle and duly forwarded to plaintiff’s office.

It was plaintiff’s evidence that an acknowledgment was mailed by plaintiff to defendant “probably within 48 hours”, as an acceptance of defendant’s order. The acknowledgment itemized the three lots of extrusions substantially as contained in defendant’s order and designated each of the three die items as a “Die Service Charge”. The document contained the statement, printed upon its face: “This will acknowledge your order as noted above and is an exact copy of our entry thereof. Acceptance of your order and this Acknowledgment are subject to approval of our General Sales Office at Chicago, Illinois, and if not approved you will be notified within ten (10) days from date. In the event of any errors in the above, please notify us immediately. If such notice is not received within ten (10) days and this Acknowledgment is not disapproved by our General Sales Office, it will be conclusively understood that the above is correct and this Acknowledgment, together with the conditions printed on the reverse side hereof, shall constitute the entire agreement between us. Fulfillment of your order will be undertaken and deliveries will be made only upon the terms and conditions of the agreement evidenced by this Acknowledgment”.

The conditions referred to were printed on the reverse side of the form. Condition designated “G” is as follows:

“Equipment:
“1. Any equipment (including jigs, dies and tools but excluding patterns) which Seller constructs or acquires for use exclusively in the production of goods for Buyer shall be and remain Seller’s property and in Seller’s possession and control, and any charges therefor shall be for the use of such equipment. All such eqttipment will be used exclusively for the manufacture of products for Buyer”.

Defendant made no response to the acknowledgment. Plaintiff manufactured the dies and the aluminum extrusions, delivered the latter to defendant and rendered invoices totaling $1,037.51, representing a charge of $410 for the “die service” items and $627.51 for the delivered extrusions. Defendant paid for the extrusions by its check in the sum of $627.51, but refused to pay the sum of $410 for the die service.

Defendant’s first two assignments are directed against the sufficiency of the petition to state a cause of action, and charge the trial court with error in refusing to dismiss the case at the close of plaintiff’s evidence for the alleged reasons that plaintiff (1) had failed to plead and prove the necessary factual elements of “a quantum meruit of action” and (2) had failed to plead and prove an express contract. These contentions have come too late. The complaints against the petition made for the first time in the motion for a new trial, and after the verdict, are unavailing, unless the pleading has completely failed to state a cause of action. Burns et al. v. Vesto Co., Inc., Mo.App., 295 S.W.2d 576; Parker v. Green, Mo.App., 340 S.W.2d 435. Nevertheless, we have examined the petition in the light of the complaints and find that they are groundless. The petition pleads the necessary factual elements of an express contract by averments of an agreement between plaintiff and defendant for the manufacture of the dies and extrusions, plaintiff’s performance, and defendant’s failure to pay the consideration due plaintiff. The petition pleads an action in quantum meruit by alleging the manufacture of the dies and extrusions by plaintiff at defendant’s request, the reasonable value of those items, and defendant’s refusal to pay a balance of account. With reference to the trial court’s refusal to dismiss the case at the close of plaintiff’s evidence — any error resulting from that action was waived by defendant when it subsequently introduced evidence on the merits of the case. Wilson v. White, Mo.App., 272 S.W.2d 1; Adams v. Kansas City, Mo.App., 266 S.W.2d 771; Ellis v. Kansas City Public Service Co., Mo.App., 203 S.W.2d 475.

Defendant contends that plaintiff’s petition improperly pleaded two inconsistent theories of recovery — quantum meruit and express contract, and that the trial court should have required plaintiff to elect one of those theories for submission to the jury instead of permitting the case to be submitted on both issues. In our opinion these contentions are contrary to applicable rules of procedure and controlling Missouri decisions which have determined the precise questions involved.

Civil Rule 55.12 (Sec. 509.110 V.A.M.S.) V.A.M.R. permits a party to set forth two or more statements of a claim (or defense), alternatively or hypothetically, either in one count (or defense), or in separate counts (or defenses). The effect of this provision is to enable parties, as far as practicable, to submit all their controversies in a single action and avoid a multiplicity of suits. Thus, it is possible for a plaintiff to state his case in a double aspect when he does not know upon what precise theory his evidence may entitle him to recover. Such a party, believing he has two forms of action to remedy a single wrong, may plead both when they are not inconsistent in the sense that the choice of one necessarily waives the other, and recover as he may be entitled under the evidence. See 1 Am.Jur., Actions, Sec. 77, Sec. 83; Davis v. Chicago & E. I. R. Co., 338 Mo. 1248, 94 S.W.2d 370; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570; Mahan v. Baile et al., 358 Mo. 625, 216 S.W.2d 92; Carsel v. Mitchell, Mo.App., 261 S.W.2d 249.

In The Globe Light & Heat Co. v. Doud, 47 Mo.App. 439, this court said:

“It will be seen that plaintiff framed its petition on two counts — one on the special contract, and the other on quantum meruit. When the evidence was all in, defendants moved the court to require plaintiff to elect upon which count it would proceed and take the verdict of the jury. The court overruled this motion, and this action by the court is now assigned as error. The trial judge in this matter was entirely correct. It is well settled in this state that the petition may allege the same cause of action in two counts so as to meet any possible state of the proof. Brickman [Brinkman] v. Hunter, 73 Mo. [172] 178, and cases cited. And in no class of cases is this rule followed so frequently, and so properly, as in the character of cases we here deal with. The wisdom of the rule is here manifest. A may contract with B to furnish certain materials, or do certain work, according to certain defined stipulations. A dispute arises, and A is compelled to sue. He claims a performance of the contract, but B denies. Under the law A is entitled, either to recover on the contract the stipulated price, or if he has contributed certain material to the advantage of B’s property, but has not to the letter complied with the contract, even then A is entitled to recover the value of such materials and work to the extent of the benefit conferred on B, limited of course by the contract price. It is entirely proper to present the case in this double form, and permit in one suit a settlement of the entire controversy.”

The Globe case was cited, with approval, in Lee-Schermen Realty Co. v. Rueffel, Mo.App., 176 S.W.2d 655, 657, where the court said:

“ * * * it is * * * the settled law that a count based on an expressed contract may be joined with a count based on quantum meruit. A few of the cases so holding are as follows: Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Graves v. Merchants & Mechanics Mut. Fire Ins. Co., 235 Mo.App. 543, 139 S.W.2d 1039; Dayton Folding Box Co. v. Danciger, 161 Mo.App. 640, 143 S.W. 855; Cunningham v. Elvins, Mo. App., 194 S.W. 515; Phillips v. Geiser Mfg. Co., 129 Mo.App. 396, 107 S.W. 471; Squire v. Ferd Heim Brewing Co., 90 Mo.App. 462. And furthermore it has been held, that plaintiff cannot be compelled to elect on which count he will go to the jury. Phillips v. Geiser Mfg. Co., supra; Globe Light & Heat Co. v. Doud, 47 Mo.App. 439”. (Emphasis supplied.)

We necessarily conclude that the two theories of recovery in plaintiff’s petition were not inconsistent or mutually self-destructive, that plaintiff was under no duty to elect between them, and that the case was properly submitted in the alternative on the hypotheses of express contract and quantum meruit, both of which were adequately supported by the evidence for submission to the jury.

Defendant claims that the trial court erred by admitting in evidence plaintiff’s exhibits numbered two and three “in violation of the original document rule and the best evidence rule”. The two exhibits were introduced and received in evidence for the purpose of proving the contents of plaintiff’s acknowledgment of defendant’s order.

The acknowledgment is a document contained on one sheet of paper — a printed form, with printing on both sides. In addition to the printing it also contained typewriting on the face side. It was placed there by the operation of a typing machine, which simultaneously, and with the same stroke, produced three additional copies (of the typing only) on sales order forms for inter-office use. Exhibit No. 2 is identified as one of the simultaneously typed copies and as containing the identical typed matter which appears on the face of the acknowledgment. Exhibit No. 3 is a printed form, in blank, and without typing. From the evidence the jury could find that it is “an exact copy”, printing and all, of the form used to prepare the acknowledgment that was mailed to the Lingle Refrigeration Company. Thus, the acknowledgment, in its complete form, including both printing and typing has been satisfactorily shown by the combined effect of the two exhibits. Defendant argues that they are not admissible “without an accounting of what happened to the original”. The disposition of the “original” presents no mystery. The evidence warrants belief that plaintiff mailed it to defendant. Defendant’s own evidence establishes that the original acknowledgment was in defendant’s possession. It is shown by the testimony of defendant’s office employee that the paper was reposing in defendant’s office files when this suit was filed. The unavailability of the primary evidence having been satisfactorily explained, the exhibits are properly admissible under the best evidence rule. Defendant further inveighs against the admissibility of the exhibits on the ground that “they had not been pleaded as a part of any agreement and were thus irrelevant”. Whether pleaded or not, ■ the exhibits are admissible as material and relevant evidence, tending to establish that there was an agreement between the parties, as averred in plaintiff's petition.

Defendant contends that plaintiff’s verdict-directing instruction No. 2 is erroneous. The only specific objection to the instruction is contained in the motion for new trial as follows: “It (the instruction) did not require a finding of special circumstances giving use (rise?) to a duty on the party (sic) of the defendant to answer plaintiff’s counteroffer at the risk of acceptance by silence”. We consider the objection as a complaint by defendant that the instruction should have hypothesized certain additional facts and circumstances.

We believe that the instruction correctly states the law and provided the jury a sufficient understanding of the issues for their determination. If the defendant deemed the instruction to be incomplete or insufficiently hypothesized, or felt that any further hypothesization was necessary, it had the right to offer a clarifying or amplifying instruction. Failing to do so, defendant will not be heard to complain. See: Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496; Steele v. Goosen, Mo.Sup., 329 S.W.2d 703; Massey v. Berlo Vending Co., Mo.Sup., 329 S.W.2d 772; Sandler v. Schmidt, Mo.Sup., 263 S.W.2d 35.

Defendant’s final assignment is that the trial court should have granted a new trial because plaintiff’s counsel improperly and prejudicially made statements in his final argument to the jury, unsupported by the evidence, to the effect that the cost of manufacturing the dies was greater than the charge demanded for them from defendant. We have not been favored with a complete transcript of counsel’s argument. The record contains only frag-mentarily noted excerpts from the argument of plaintiff’s counsel. No portion of the argument made by defendant’s counsel is before us. However, it is apparent from the record that defendant’s objections to plaintiff’s argument were sustained by the court in each instance. Defendant made no request that plaintiff’s counsel be rebuked or that the jury be discharged. The trial court did all that he was requested to do, by sustaining the objections and directing plaintiff’s counsel to confine the argument to the' facts in the case. We rule against the ássignment.

The judgment is affirmed.

All concur.

      . Ct. Robertson v. Tapley, 48 Mo.App. 239.


text:
    AUSTIN & BASS BUILDERS, INC., Plaintiff-Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Defendants-Appellants.
    No. 23341.
    Kansas City Court of Appeals. Missouri.
    June 5, 1961.

      Lucian Lane, W. M. Thurman, Kansas City, for appellants.
    Terry & Welton, Jack C. Terry, Gaylord Wilkins, Kansas City, for respondent.
   BROADDUS, Judge.

This is an action for damages for breach of an alleged real estate contract. Plaintiff had a verdict and judgment for $6,000. Defendants have appealed.

Count I of the petition alleged that defendants as sellers entered into a written contract to sell certain real estate to plaintiff; that plaintiff performed all its obligations and covenants provided in the written contract, including making payment of $1,000; that defendants failed and refused to perform the written contract in that they could not give good title and were obligated to repay the $1,000. Plaintiff prayed that defendants be directed to repay the $1,000. This Count was dismissed by plaintiff at the trial.

Count II alleged that on April 8, 1959, defendants were in possession and claimed to be the owners of a tract of land in Jackson County, Missouri, and offered to sell it to plaintiff for $58,587.21 and an agreement in writing was entered into between plaintiff and defendants; that plaintiff performed all of its obligations under said contract but that defendants breached the contract by refusing to deliver a warranty deed conveying the property free of incumbrances as provided in the contract. The petition then alleged that plaintiff had spent time and money in furtherance of the object of the contract, that it was forced to buy other land at an increased price and its reputation and standing as a builder and its credit were damaged and plaintiff lost time in its business and prayed damages in the sum of $50,000.

Count III was similar to Count II but added the allegation that defendants intentionally, maliciously and fraudulently borrowed money and put a mortgage of $40,000 on the land so that they could not give clear title and prayed for actual damages of $50,000 and punitive damages of $50,000. The Court refused to submit any issue of punitive damages.

The contract purports to have been entered into on April 8, 1959 between “Lawrence E. Lewis and Ethel I. Lewis (Husband and Wife) the seller, and Austin and Bass Builders, Inc., the buyer.” It recites that “the seller” has sold and agrees to convey the following described real estate situated in Jackson County, Missouri: “All of Lots 9 thru 28 and 30 thru 34 Woodridge Subdivision, Independence, Missouri”, for the price of $31 per front foot, to be paid by the buyer as follows: $1,000 at-the signing of the contract, the receipt of which “is acknowledged by the seller and which is deposited with Lawrence E. Lewis and Ethel I. Lewis (Husband and Wife).” The balance to be paid in the following manner: “$4,000 cash on delivery of deed as herein provided and starting of improvements. Balance shall be paid at the rate of $31 per front foot at the closing of loan on constructed houses less $200 per lot which is the consideration paid in the down payment.” The seller agreed to deliver to the buyer a warranty deed, “properly executed and conveying said property free and clear from all liens and incumbrances whatsoever.”

The contract was signed only by Lawrence E.. Lewis and Kenneth Bass as an individual. The plaintiff corporation was not in existence on the date of the contract. It is conceded that defendant Ethel I. Lewis did not sign the contract. It is also admitted that on January 12, 1960, Mrs. Lewis obtained a cashier’s check for $1,000 payable to Austin & Bass, which was a repayment of the $1,000 paid by Kenneth Bass to Mr. Lewis on April 8, 1959, and that Austin & Bass Builders, Inc., endorsed, deposited and retained this $1,000.

Kenneth Bass testified that he was president of Austin & Bass Builders, Inc.; that he and Mr. Austin were thinking about organizing a corporation in the latter part of 1958 or early in 1959; that in March, 1959, they heard that Mr. Lewis had some land for sale and contacted him four or five times in March in Mr. Lewis’ office; that Mrs. Lewis was present ninety percent of the time, but did not discuss the terms of the agreement. She was just listening. That during March they decided to incorporate and so advised Mr. and Mrs. Lewis. The certificate of incorporation was dated April 14, 1959, and the certificate of authority to commence business was dated April 29, 1959. Mr. Bass also testified that after signing the contract they got material ready for F.H.A.; that at Mr. Lewis’ request, they asked the Queen City Engineering Company to make certain plans for street layout, sewer layout, etc.; that they got the Queen City Engineering Company to make plat plans for which they paid $155; that they employed an architect to draw house plans and paid him $154; that they had numerous meetings with Mr. Lewis with regard to the subdivision being approved by F.H.A.; that they submitted F.H.A. applications and specifications tothe City Bond and Mortgage Company for approval; that they contacted numerous contractors; that they paid $450 to the City Bond and Mortgage Company for ten F.H.A. commitments.

In the latter part of July Mr. Lewis called Mr. Bass. In response to that call Mr. Bass went to the Lewis home. Mr. Lewis had a letter from the F.H.A. stating that certain additional requirements be met before the subdivision would be approved. Mr. Lewis then stated that he might have to put a mortgage on the property and, if so, could not give clear title to any part of it. Mr. Bass had.plaintiff’s attorney write a letter to Mr. Lewis and they had a further meeting talking about the contract, but could never get anywhere. He testified that at this meeting Mr. Lewis said he had put a mortgage on the property and the only way he could sell it would be to have cash for the whole thing, and Mrs. Lewis stated' that they could not go through with the contract without all the money. Mr. Bass testified that he spent approximately two months’ time from the middle of March to August 3 working on these matters which he valued at $10 per hour; that they found twelve lots at 42nd and River in Independence for which they paid $2,750 per lot compared to $2,140 at which the Lewis lots were priced.

Mr. Lawrence Austin, Secretary-treasurer of Austin & Bass Builders, Inc., testified that he attended two or three meetings where Mr. Bass and Mr. and Mrs. Lewis were present, but he was more or less an observer because he wasn’t familiar with real estate; that he attended several conferences Mr. Bass had with the F.H.A. and City Bond and Mortgage officials and-interviewed subcontractors. He said he spent two or three weeks’ time on the project and that his time was worth $10 per hour; that about the last week of July plaintiff received a check from the Lewises for $1,000 but it was not signed; that when this check was returned to Mr. Lewis the latter said, “My wife forgot to sign it.”

We will set forth other portions of the evidence as we take up the assignments of error made by defendants.

Defendants’ first contention is that the trial court erred in not holding that, as a matter of law, the alleged con-tract “was void for uncertainty and want of mutuality in that the payment of the* purchase price was contingent on ‘starting: of improvements’ and ‘closing of loan on constructed houses,’ and, since there was no obligation on plaintiff to start improvements or to build houses, the time of payment could not be ascertained and there was no obligation to pay.” The evidence stands undisputed that defendants accepted the $1,000 as a down payment under the contract. The evidence also shows that defendants went over the plat plans submitted by plaintiff and approved the same. Together with plaintiff they made F.H.A. applications. They appeared before the Planning and Zoning Commission with plaintiff. And during the time those things were being done there was neither hint nor suggestion from defendants that they did not fully understand the terms and conditions of the contract. Our Supreme Court has held that mutuality of obligation is not necessary if there is consideration other than a promise. Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7; Schmidt v. Morival Farms, Mo.Sup., 240 S.W.2d 952, 957. And even though the contract was in its inception unilateral, part performance rendered it bilateral. Nelson v. Massman Const. Co., 231 Mo.App. 1, 91 S.W.2d 623, 627 (citing cases). We agree with the trial court’s holding that the contract was not void for want of mutuality. And, since defendants claim that the contract is void for uncertainty is based upon the premise of lack of mutuality, we rule the contention against defendants.

Defendants next contend that the court erred in refusing to hold, as a matter of law, that no action could be maintained on the alleged contract for the reason that plaintiff’s action is based entirely upon an alleged real estate contract which shows upon its face that the real estate involved was owned by defendants as an estate by the entirety, and that “no contract enforceable under the Statute of Frauds resulted unless signed by both.”

This is not a suit for specific performance, but an action for damages. An agreement to convey, though invalid to affect the title to real estate in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. The general rule of law is that the agency of the husband for the wife may be shown by direct evidence or by such facts and circumstances as will authorize a reasonable and logical inference that he was empowered to act for her or that she ratified his unauthorized acts. 41 C.J.S. Husband & Wife § 70, p. 548. On its face the alleged contract purports to be the joint contract of “Lawrence E. Lewis and Ethel I. Lewis (husband and wife).” Mrs. Lewis testified that she and Mr. Lewis had been in the contracting business for 15 years; that the bank account at the Linwood Bank was “our construction account, requiring two signatures, his and mine;” that she was an active partner in the business known as the Lewis Construction Co.; that the original deposit check was paid to “us” and deposited in “our” account; that when Mr. Lewis gave her the check for $1,000 he told her that Mr. Bass was buying the lots at 39th and Noland; that Mr. Lewis told her of the contract with “Austin & Bass shortly after it was written”; that she had no objection to selling ■the property; that she deposited the check from Austin & Bass and purchased the cashier’s check for refund in the “regular course of business” of the Lewis Construction Company. Mr. Lewis admitted that Mrs. Lewis was present at a meeting between Austin & Bass and himself on April 20, 1959, and that she got out the plat plans from the file. Mr. Bass testified that he kept Mr. and Mrs. Lewis fully informed as to what plaintiff was doing and at no time did they ever tell him that they did not intend to carry out the agreement; that at a meeting in August of 1959, he asked Mr. and Mrs. Lewis to sell the property as per the agreement and they stated to him that they had mortgaged the property and that at this time they could only sell for cash; that Mrs. Lewis stated at two meetings after July 30, 1959, that “she didn’t see how they could go through with the deal without more money.” All of which tends to show that she had previously given her assent to the contract. In order to show a course of conduct by defendants plaintiff offered in evidence sixteen real estate contracts between defendants and other persons. In all of those contracts the names “Lawrence E. Lewis and Ethel I. Lewis” appear as sellers. In twelve of those contracts only the signature of Lawrence E. Lewis appears. Yet the evidence disclosed that “the majority of these contracts later culminated in a transfer of property to the buyers named in the contracts”; that “Mrs. Lewis, of course, signed the deeds.” We are of the view that there was substantial evidence of an agency and thus the question was one to be submitted to the jury.

Defendants’ third contention is that the court erred in failing to hold that there was no contract between plaintiff Austin & Bass Builders, Inc., and defendants for the reason that there was no such corporation in existence at the date of the alleged contract. It is conceded that the corporation, Austin & Bass Builders, Inc., had not yet completed its corporate organization at the time the contract was signed. However, the testimony was that the corporation immediately after securing its charter held a meeting of its directors at which time the contract, signed by Bass with defendants, was accepted, approved and ratified as a corporate act. It has been universally held that when a corporation adopts and ratifies the contract of its promoter or organizer, such contract becomes the contract of the corporation, and this is especially so when there is part performance by the corporation under the contract, Schmidt v. Morvial Farms, supra. The contention lacks merit.

Defendants next contend that the court erred in refusing to hold that the acceptance by plaintiff of the cashier’s check for $1,000 constituted a rescission or abandonment by plaintiff of the alleged contract. The suit was filed on September 10, 1959. The cashier’s check was dated January 10, 1960. A rescission of a contract involves restoring the status quo of the parties. Ungerer & Co. v. Louis Maull Cheese & Fish Co., 155 Mo.App. 95; 134 S.W. 56. And to constitute an abandonment of rights under a contract, an actual intention to abandon must exist. 17 C.J.S. Contracts § 412, p. 899. The evidence is clear that when plaintiff accepted the check it had no intention of abandoning or surrendering its rights growing out of defendants’ breach of the contract. Defendants waited until plaintiff had secured F.H.A. approval, made plat plans, secured commitments, secured zoning permits — in fact everything necessary to commence building- — thus securing many benefits which increased the value of their property, then attempted to rescind the contract by paying back the down payment and completely ignoring the damages suffered by plaintiff because of defendants’ failure to perform. Defendants made no attempt to restore plaintiff to status quo. This contention also lacks merit.

Under Point V defendants contend that the court erred in failing to hold under all the evidence that plaintiff failed to show performance on its part of the required terms of the alleged contract and failed to show that there was any breach thereof by defendants. We have heretofore stated thé facts surrounding this transaction and it would serve no useful purpose to repeat them here. In our opinion there was substantial evidence tending to support the jury’s finding of performance by plaintiff and a breach by defendants of the contract. Thus we rule the point against defendants.

Under Point VI defendants claim that the trial court committed error in admitting certain evidence. Under subhead (a) of this assignment complaint is made specifically of evidence of negotiations and dealings between Mr. Austin and Mr. Bass and defendants before and following the date of the contract. It must be kept in mind that the position of defendants at all times during the trial was (a) that there was no contract, and (b) that if there was a contract defendant Ethel I. Lewis was not a party to it. It was obvkras that Mrs. Lewis did not sign the contract, so it became necessary for plaintiff to prove that she actually participated in it and became a party to it. This plaintiff had a right to do. Baker v. Thompson, 214 Mo. 500, 114 S.W. 497. Under subhead (b) defendants complain of “private conversations and dealings between Mr. Austin and Mr. Bass concerning decision to form a corporation.” The fact is that all of the testimony in regard to conversations and acts of Austin and Bass were preliminary questions leading up to the introduction of plaintiff’s Exhibits 6 and 7, which were the certificate of incorporation and authority to do business. In subheads (c) and (d) complaint is made of the admission of plaintiff’s Exhibit 14, being sixteen contracts of sale which Lawrence E. Lewis had signed in other transactions involving real estate transfers and in twelve of which the signature of Ethel I. Lewis does not appear. The contention ignores the fact that Mrs. Lewis testified that the firm of “Lawrence E. Lewis, Contractor”, was a partnership, and that she and Mr. Lewis were in the business together; that Mr. Lewis signed contracts for the sale of real estate which she later confirmed and signed the warranty deed relating thereto. The contracts attached to the Exhibit tended to show that in the general course of the business of Lawrence E. Lewis and Ethel I. Lewis, d/b/a Lawrence E. Lewis, Contractor, Mr. Lewis acted as agent for his wife. They also tended to throw light upon the question of whether he also acted as her agent in the instant transaction. Under subhead (e) defendants complain of the admission of the record of testimony given by Mr. Lewis before the Jackson County Court and the Planning Commission, wherein Mr. Lewis twice stated, under oath, that he had sold the property in question to plaintiff. It was proper to receive these admissions. They tended to refute the testimony of Mr. Lewis given at the trial which was to the effect that he signed the contract merely as an accommodation to Mr. Bass.

Under Point VII defendants assert that plaintiff having received the return of the $1,000 down payment elected to treat the contract as “void and by such election of remedies was precluded from further maintaining this further action for breach of contract.” As we have pointed out in discussing defendants’ fourth contention, the $1,000 down payment was not returned until four months after this action was instituted, and that under the evidence we would not be justified in holding as a matter of law that plaintiff had abandoned the contract. All three Counts of the petition were based upon a breach of the contract. The doctrine of election of remedies applies only when one remedy is inconsistent with another. Brown v. Essig, Mo. App., 1 S.W.2d 855. This is not true here. Also asserted under this point is the claim that the court erred “in admitting testimony of plaintiff’s activities and dealings with third persons and expenditures after date of contract as evidence of special damages, since these matters were not a necessary part of performance of the contract by plaintiff.” The evidence clearly shows that both plaintiff and defendants, the plaintiff through its President, Mr. Bass, and defendants by the action of Mr. Lewis, with the acquiescence of Mrs. Lewis, were aware of what plaintiff was doing in- order to proceed with the building of houses upon the land which defendants had sold it. The defendants were not only aware of what plaintiff was doing, but cooperated with it and even requested plaintiff to do particular acts for them such as appearing before the Zoning Commission, and having plaintiff, through its officer, Mr. Bass, follow up on the-F.FI.A. requirements imposed upon the defendants in regard to readying the land for building purposes. Yet, despite all of the evidence which clearly showed plaintiff’s reliance upon defendants’ acts prior to the breach of the contract by defendants, they now say that none of the items of damage claimed by plaintiff, and specifically pleaded by it, could have been contemplated by the parties or were necessary consequences of the alleged breach of contract. The point lacks merit.

In assignment VIII defendants claim that Instruction No. 1 was prejudi-cially erroneous. They divide this point into six separate subdivisions under which they assert that the instruction submitted questions of law, failed to hypothesize and require findings of fact as to performance and breach, and omitted important elements of the case. We do not find the instruction subject to these criticisms. They also say the instruction seeks to hold Ethel I. Lewis a party to the contract merely because she knew about it. The fact is the instruction sets out all facts necessary to show that Mrs. Lewis not only knew of the contract, but that she participated in the same by accepting and depositing the down payment in a joint, account; issued one check for refund and purchased the cashier’s check for the final refund. Defendants further assert that the instruction “simply ignores the requirements of the Statute of Frauds.” The fact is the instruction clearly hypothesizes the necessary requirements to take the case out of the Statute of Frauds and leaves such facts to the determination of the jury.

Finally, it is contended that Instruction No. 3, which dealt with the measure of damages, is erroneous. Defendants cite the case of Duncan v. Townsend, Mo. App., 325 S.W.2d 67. In that case the special damages sought were not specially pleaded. This court there held that had the special damages been pleaded, the plaintiff would have been entitled to an instruction similar to Instruction No. 3. In the instant case plaintiff alleged as special damages each and every item instructed upon.

Finding no error in the transcript prejudicial to defendants the judgment is affirmed. All concur.