text:
    Jessie SHROYER, Respondent, v. J. Wesley SHROYER and Wayne Shroyer, Appellants.
    No. 52943.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Brown & Pyatt, by, Robert F. Pyatt, Trenton, for plaintiff-respondent.
    Pickett, Andereck & Hauck, by, Marvin L. Sharp, Eugene E. Andereck, Trenton, for defendants-appellants.
   HOUSER, Commissioner.

Bill in equity to cancel a warranty deed on the ground of nondelivery and for an accounting of royalties received from the operation of a stone quarry on the land, an 80-acre farm in Mercer County. Plaintiff is Jessie Shroyer, mother of the defendants J. Wesley and Wayne Shroyer. The trial chancellor cancelled the deed and ordered the grantees to pay $1,392.82 in royalties. Defendants appealed.

The common source of title is Jennie Peters, a widow, who acquired the farm by deed in 1935. Jennie’s brother, Virgil Shroyer, helped her run the farm for many years, until his death in July, 1960. At the time of Virgil’s death Jennie’s family consisted of her brother George Shroyer and his wife Beulah; Virgil’s widow (Jessie Shroyer, plaintiff herein), and Jessie’s five daughters and two sons (Wayne and Wesley, defendants herein). On October 15, 1960 Jennie made and executed a will, properly witnessed, leaving the 80-acre farm to Virgil’s widow, Jessie Shroyer, reciting that Virgil had kept up the farm for 30 years and that Jessie, his wife, “has been more than a sister to me in that time and all without compensation of any kind.” (At that time Jessie owned or had an interest in farms totalling 663 acres, and a house in Mercer, subject to a mortgage of between $10,000 and $11,000, facts of which Jennie whs aware.)

Jennie Peters was a strong-willed woman with a mind of her own. “You just didn’t tell her what to do.” She was generous with her relatives and from time to time made gifts to or paid bills for them. She gave one of her nieces $500 when the niece’s husband died. She gave Wesley Shroyer $240 to pay for new dentures. She was “in the habit of making up deeds” and would dispose of her property, change her mind and make another disposition of her property, then change her mind again. In the six years before her death she made three different dispositions of her property. Jennie preferred secrecy about her property affairs and wanted to keep peace in the family. After executing the will dated October 15, 1960 Jennie turned it over to her niece Betty Daily with the request that Betty put it in her bank box and “not ever say anything about it.” Jennie said she thought it would “keep down trouble in the family” if nobody knew about it. The will remained in Betty’s safety deposit box in Peoples Bank of Mercer until Jennie died. After giving Betty possession of the will Jennie did not thereafter discuss the will with Betty, or request of Betty that she return the will or destroy it. After Virgil’s death Wayne and Wesley would come out to Jennie’s farm about once a week. They would chop ice and perform other chores, such as throwing hay down for the cattle, cleaning out the barn, repairing fences, etc.

Robert and Rachel Jones were close neighbors with whom Jennie had almost daily discussions about her business. For a period of 3 or 4 months prior to December 1, 1964 Jennie discussed with the Jones-es the deeding of the 80-acre farm to Wayne and Wesley Shroyer. She stated that she wanted to deed the property to them; that “she wanted Wayne and Wesley to have the farm and that was her intentions.” Jennie told the Joneses during this period that Betty Daily (sister of Wesley and Wayne) had asked Jennie to deed the farm to her since she (Betty) was the one who was taking care of her mother Jessie, but that Jennie had refused to do so. Robert Jones suggested that Jennie get a lawyer to prepare the deed but she wanted him to prepare it, so finally he “gave up” and he and his wife prepared the deed. Jennie made it known to Jones that the purpose of preparing the deed was “to pass title before she died so it wouldn’t be probated as a part of her estate.” Jones explained that Jennie was “a saving sort of person” and that she did not want too much property to “go through Probate Court.” When asked whether she had any other papers “out” Jennie answered that all of her papers had been brought back to her and “everything was destroyed”— that there was no will or “anything else of that- matter”; that her wills “had been destroyed” and “there is no other.” In their discussions Jennie stated that she wanted to make sure that the farm stayed with one or the other of the boys; that if either wanted to sell, the other should have first chance to buy. The deed was drawn to make such a provision. She did not want it known that she was deeding the farm to the boys. She wanted “to keep it quiet,” and said “I just don’t want trouble, Bob, in the family.” She felt that the others in the family would be disturbed if they knew that she intended Wesley and Wayne to have the farm. The deed to Wesley and Wayne bears date December 1, 1964. It was notarized on December 8, 1964. Wayne Shroyer told the notary public that Jennie wanted her to come out to notarize some papers. The notary refused to drive out to the farm because of bad weather conditions. Wayne then offered to drive her out and bring her back, to which she consented. When the notary first saw the paper to be notarized it was lying on a table in the kitchen. Jennie asked the notary if she would notarize her signature “on that.” The notary surmised that it was a warranty deed. Jennie folded it so that the notary could not see whose names were on the deed. Jennie did not identify the grantee. The notary considered that Jennie knew what she was doing but that for some reason Jennie wanted to keep the name of the grantee to herself. Only Jennie and the notary were in the room when the paper was notarized. Wayne was in another part of the house. The deed was not handed to Wayne in the notary’s presence. It was lying on the table when the notary left.

Afterward Jennie told the Joneses that she had signed the deed; that she had conveyed the farm to Wayne and Wesley and that they were the owners; that “it belonged to the boys”; that she had consulted with them about selling the farm; that she did not want them to ever sell' the farm and told them that “if it were she, she would not sell.” In the weeks and months that followed and up until the time of her death Jennie “conveyed the attitude” to the Joneses “that the boys were the owners of the farm.”

George Shroyer testified that about six months before Jennie’s death he had a conversation with her at her home in which she told him that she had deeded the farm to Wayne and Wesley, and that “she told Wayne to take that deed and read it and he took it * * * ”; that she “actually gave” the deed to Wayne and “told him it was his, but she wanted to keep it in her possession until she died”; that “she was going to keep the deed until she died” — “she was going to keep it in a safe place.” When asked whether she told him why she didn’t want Wayne to take the deed and put it of record he testified, “She wanted to keep it in the safety — to save any more trouble.” Jennie did not say whether she might want to change the deed again. With reference to the will he testified that Jennie told him she had given Betty a will to keep; that the will was put in a bank box and kept for some time and that the will was outstanding, hut “it was to be destroyed.” She did not tell George that she had asked for the return of the will or had taken any steps on her own to see that the will was destroyed. Neither Wesley nor Wayne ever said anything to George Shroyer to indicate that they were making claim -to the land.

Mrs. Shroyer testified that Jennie told her that she had made the deed to Wesley and Wayne; that it was her intention that Wesley and Wayne have the farm; that she (Jennie) considered that the boys were owners of the farm, and that she did not want them to sell it; that Jennie told her that the previous will to Jessie Shroyer had been destroyed. Mrs. Shroyer also testified that Jennie said that Betty “was supposed to see that it was destroyed”; and that Jennie told her and George at the hospital that she was not going to live and that she wondered what the others would say when the deed was presented.

The lessee who quarried rock on the farm heard that Jennie had deeded all of her property to Wayne Shroyer. Concerned about his lease, he went to Jennie in July, 1966 and asked whether the land had been deeded to Wayne. She said “yes” but assured him that the deed was made after the lease and that she had “included the lease” in the deed. Jennie continued to live on the 80-acre farm and to collect royalties from the rock quarry until her death. She kept and retained the money for herself.

On July 5, 1966 Jennie wrote an unwit-nessed and therefore ineffective “will” in her own handwriting, stating that she wanted to make known her wishes as to the disposal of her home and belongings. She recited that she had been alone, without financial help; that Virgil had always seen to it that she was comfortable; that since his passing his family had been wonderful to her; that his boys Wesley and Wayne “have been so helpful & still think of me first. To them I have deeded my home of 80 acres. Not much for all they have done for me But it is my life’s work having lived here alone for 30 years. They shall have a good deed to farm subject to a lease contract with Stark & Cole Inc. for the production of road rock & lime for which I get .060 per ton for all material sold This contract along with deed being part and parcel of farm shall go with the deed to Wesley & Wayne My royalty of .06^ per ton shall be used until all my obligations are taken care of same consisting of a nice funeral Noel Moss put my brother away beautifully I should like the same * * * My heartfelt wish is that my estate being small as it is shall not need court action of any kind I have asked Bob Jones and Rachel to just take over when I pass on he said he would but without pay But I would prefer pay — and generous as they have been so helpful to me in those last years.” Following her signature there were a number of specific bequests. She made this further statement:

“To Robert and Rachel Jones as Administrators
“My royalty payments check shall be deposited in the Peoples bank for my use until all accounts are settled when the deed to farm and lease contract including royalty payments (same being part and parcel of farm) shall be turned over to owners of farm Wesley and Wayne Shroyer. At my passing Robert Jones shall have full charge such as paying claims and distribution of funds he shall sign all papers and none shall be honored without the Peoples Bank O K”

After this statement she named those to whom should be given her father’s picture; her bed; steer calf; reclining chair; range, big mirror, red rug, etc.

Jennie died in a hospital October 3, 1966. Two or three weeks before her death, just before going to the hospital for her final illness, Jennie obtained her “papers” from a bank box. At Jennie’s instance the Joneses bought a metal strongbox for Jennie. Jennie put her papers in it and handed the box to Robert Jones, asking him to keep it while she was in the hospital. Jones refused to take the key to the strongbox, preferring not to have access to the box. Jennie did not give Jones instructions as to what to do with the metal box other than to keep it — she did not instruct him to deliver it to anyone else. Specifically, she did not tell the Joneses to give the deed to defendants in case she died. Jones would have redelivered the box to Jennie at her request. The box stayed in the possession of the Joneses at their house until Jennie’s death and was not opened by them. After Jennie’s death the Joneses took the locked box to the probate office at Princeton.

On the night of Jennie’s death Wesley Shroyer stated that he did not know anything about the Jennie Peters estate; that he did not know anything about a deed. Asked later if he knew anything about Jennie’s business Wesley stated that he didn’t know anything about it.

After Jennie’s death Betty Daily took Jennie’s will dated October IS, 1960 out of her bank box and turned it over to Wesley Shroyer. Wesley said nothing to Betty about a deed, made no claim that the land had been deeded to his brother and him, and promised that he would take the will to the probate court the next morning. When the family assembled at the probate court the probate judge said there was no valid will. Betty got up and said there was a valid will and that it was in Wesley’s possession. Wesley “reluctantly” produced the will and handed it to the probate judge. At that time neither Wes-lay nor Wayne Shroyer made any mention of a deed conveying the property to them. At a second meeting Wesley and Wayne, who were designated as “administrators” in the will of October 15, 1960, qualified as co-executors. A search was made at Jennie’s home for the keys to the box. Mrs. Jones found the keys in a vase on Jennie’s dresser. Wayne and Wesley opened the metal strongbox at the time of the making of the inventory, took out the deed of December 1, 1964 and had it filed for record on October 15, 1966. Later they went to Jessie and told her that there was a deed in the box made out to them, “so, therefore, the farm was theirs.” The box and contents, including “General Warranty Deed,” were listed in the estate inventory and appraisement.

Wayne and Wesley Shroyer did not testify concerning delivery of the deed because of the Dead Man’s Statute. Wayne, however, was permitted to testify that he made an effort to keep the “fact” that he was the owner of the farm a secret from his sisters from the time the deed was executed until the time of Jennie’s death.

On this appeal from a decree in equity it is our duty to review the evidence, determine its weight and sufficiency, and make our own findings, giving due deference to the findings and judgment of the trial chancellor. Cleary v. Cleary, Mo.Sup., 273 S.W.2d 340, 346; Klatt v. Wolff, Mo.Sup., 173 S.W.2d 933.

The only question is whether there was a delivery of the deed. The controlling element in determining this question, a mixed question of law and fact, is the intention of the parties, particularly the intention of the grantor. O’Mohundro v. Mattingly, Mo.Sup., 353 S.W.2d 786 [2]; Klatt v. Wolff, supra; Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883 [13]. The vital inquiry with respect to the grantor is whether she intended a complete transfer; whether she parted with dominion over the instrument with the intention of relinquishing all dominion and control over the conveyance and of making it presently effective and operative as a conveyance of the title to the land. Wheeler v. Rines, Mo.Sup., 375 S.W.2d 48, 50; Lape v. Oberman, Mo.Sup., 284 S.W.2d 538, 540; Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647; Galloway v. Galloway, supra, 169 S.W.2d, l.c. 888 [11]; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86. It is not necessary, in order to constitute a delivery of a deed, that the instrument actually he handed over to the grantee, or to another person for the grantee. There may he a delivery notwithstanding the deed remains in the custody of the grantor. Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 A.L.R.2d 1431, and authorities cited l.c. 37. A valid delivery once having taken place is not rendered ineffectual by the act of the grantee in giving the deed into the custody of the grantor for safekeeping. O’Mohundro v. Mattingly, supra, 353 S.W.2d, l.c. 792; Galloway v. Galloway, supra, 169 S.W.2d, l.c. 888 [15]; Hale v. Weinstein, Mo. Sup., 102 S.W.2d 650. It is all a question of the intention of the parties, which may be manifested by words or acts or both. Cleary v. Cleary, supra, 273 S.W.2d, l.c. 346.

The burden of proof of nondelivery of a deed is upon the party who seeks to invalidate the conveyance on the ground of nondelivery. Wilkie v. Elmore, Mo.Sup., 395 S.W.2d 168; O’Mohundro v. Mattingly, supra, 353 S.W.2d, l.c. 792 [1]; Sando v. Phillips, Mo.Sup., 319 S.W.2d 648; Klatt v. Wolff, supra; Galloway v. Galloway, supra, 169 S.W.2d, l.c. 888 [16,17]; Zumwalt v. Forbis, 349 Mo. 752, 163 S.W.2d 574, 575; 26A C.J.S. Deeds § 183. In this case plaintiff, Jessie Shroyer, has the burden of proof of nondelivery.

Appellants-grantees claim the benefit of a presumption of delivery arising out of the fact that the deed was acknowledged, under § 490.410, RSMo 1959, V.A. M.S. and cases holding that under the statute the certificate of acknowledgment takes the place of proof that the deed was signed and delivered, and is prima facie evidence that the deed was duly executed, i. e., that it was signed and delivered. Baker v. Baker, supra, 251 S.W.2d, l.c. 37 [8], There is no such presumption in this case. “If there were nothing shown but the deed, duly acknowledged, and the fact that it was recorded and in possession of the defendant, the rule would settle the case in defendant’s favor; but the plaintiff showed at the outset that the deed was not in possession of the defendants at the death of the grantor, but in possession of the grantor and placed among his other papers.” Harrison v. Edmonston, Mo.Sup., 248 S.W. 586, 588. This deed was not recorded at the time of the grantor’s death. The circumstances that the instrument was not recorded and was in the grantor’s possession at the time of her death, unless explained, are deemed “conclusive that the parties did not intend a complete transfer.” Phillips v. Phillips, 50 Mo. 603, 606. In this connection see Sando v. Phillips, supra, 319 S.W.2d, l.c. 652 [7].

Appellants further claim a presumption of delivery from their showing that the deed was in the possession of the grantees. Such a presumption arises where there is an unequivocal showing that grantee was given possession of the deed. Baker v. Baker, supra, 251 S.W.2d, l.c. 37 [9]. The showing is equivocal in this case, for here the evidence indicates that grantor handed it to one of the two grantees momentarily, for the purpose of reading it, and that at grantor’s direction it was immediately taken back into grantor’s possession, to be kept by her until her death. A presumption of delivery does not arise under these circumstances.

On the contrary, there is a presumption in this case in favor of respondent, not appellants. There is a presumption of nondelivery, in view of the conceded fact that the deed was in grantor’s possession at the time of her death and that the deed was not then recorded. “By the introduction of testimony substantially tending to show that the deed was in the grantor’s possession, in his safety deposit box, at the time of his death, the plaintiffs made a prima facie case; for, if unrecorded and in the grantor’s possession, the nondelivery of the deed is presumed. 26 C.J.S. Deeds § 184; 16 Am. Jur. Deeds, § 386; Phillips v. Phillips et al., 50 Mo. 603.” Galloway v. Galloway, supra, 169 S.W.2d, l. c. 888 [19].

This showing placed upon grantees, defendants Wesley and Wayne Shroyer, the burden of going forward with the evidence to rebut plaintiff’s prima facie case. Idem. To sustain this burden defendants introduced George and Beulah Shroyer’s testimony.

In reviewing the evidence in this case we are conscious of the fact that the determination of delivery vel non depends to a large extent upon the credibility of George and Beulah Shroyer and the interpretation of their testimony. In weighing their testimony as well as all of the rest of the testimony in the case, and in making our own independent findings, we are aided and assisted by the findings and judgment of the chancellor, who heard and observed the demeanor of the witnesses and was in by far the best position to judge of their credibility and reliability. So armed and informed, and with due deference to the chancellor’s findings, it is our conclusion that grantees-defendants Wesley and Wayne Shroyer have not met and sustained the burden of rebutting plaintiff’s prima facie case of nondelivery.

We find that Jennie, under the false impression that her will of October 15, 1960 had been destroyed, made a warranty deed on December 1, 1964 and executed it one week later, by which she intended and undertook to convey her 80-acre home-place to her nephews Wesley and Wayne Shroyer, but that she did not deliver, or intend to deliver, the deed to Wayne with the intention of relinquishing all dominion and control over the conveyance or of transferring title to Wesley and Wayne in praesenti; that in December, 1964 she wanted her nephews to eventually become the owners of the farm; that her attempts to effect such a transfer of title by the deed in question were ineffective for lack of delivery; that the deed never became operative and was properly cancelled and set aside by the chancellor and defendants properly called to account for the royalties received from the operation of the rock quarry. We are impelled to these findings by all of the evidence considered in its totality, being especially persuaded by the following facts: The deed did not reserve a life estate to Jennie. Such a reservation would have raised a strong presumption that she intended that title should immediately vest in the grantees. Baker v. Baker, supra, 251 S.W.2d, l.c. 37. Grantor retained possession of the deed until the date of her death. Grantees had no access to and no permission from grantor to take possession of the deed. It was found in her strongbox, which she had placed in the temporary custody of her trusted friends and neighbors, Robert and Rachel Jones. Grantor retained the keys and had the right to call for the return of the strongbox and its contents, including the deed in question, at &ny time. Grantor did not place the deed in the possession of her banker, the notary, the Joneses, her brother George (in whom she confided in business matters), or anyone else, with directions to deliver the deed' to the grantees. Grantor had a penchant for changing her mind about the disposition of her property, and frequently did so. Nondelivery would make it possible for her to destroy the deed and otherwise dispose of the farm if she later decided to do so. The secrecy employed in the transaction is consistent with nondelivery and retention of control over the deed. Nondelivery would make it less likely that the transaction would come to the attention of the other members of the family than delivery. When the deed was found, after grantor’s death, it had not been recorded. Grantor’s retention of the unrecorded deed, in a place under her control, was consistent with her previous history of change in the disposition of her property. The significance grantor’s manual handing of the deed to Wayne (if this actually happened) might otherwise have had is overcome by the fact that the deed was never recorded. The failure to record is consistent with the conclusion that grantor did not intend to pass to the grantees any present title, and no title at all until her death.

George Shroyer’s testimony that Jennie told him that she handed the deed to Wayne is not conclusive that delivery was intended. What Jennie is supposed to have said at the time is not necessarily indicative of that intent but is subject to the interpretation that she was merely exhibiting the deed to Wayne to inform him of the fact that she intended the boys to have the farm at her death and to permit him to read the instrument, but that she was reserving control over the deed. It is a reasonable inference that if she handed the deed to Wayne it was “ * * * merely for temporary convenience at the time, and [her] continued possession of the instrument afterwards indicated an intention to retain control of it.” Harrison v. Edmonston, Mo.Sup., 248 S.W. 586, 588 [2].

That she intended to retain control over the farm is confirmed by her subsequent exercise of acts of ownership over the farm, continuing to live there and operate it, and receiving and keeping the royalty payments for her own use and benefit. The fact that defendants were not placed in possession of the farm is yet another indication that Jennie did not intend to pass title presently.

George Shroyer’s testimony relative to Jennie’s exhibition of the deed to Wayne, and the theory of delivery, is detracted from by the testimony suggesting that neither Wesley nor Wayne, prior to Jennie’s death, seemed to know anything about Jennie’s estate or of the existence of a deed, and that after Jennie’s death, when the family gathered at the probate office for the reading of the will, Wesley and Wayne did not speak up, or claim the property by virtue of a deed, or suggest the existence of a deed from Jennie to them.

In addition to the foregoing reasons, the conclusion that the deed was not delivered at the time it was executed and acknowledged is buttressed by the writing of July S, 1966 (some 19 months after the deed was executed) in which Jennie by a purported will in her own handwriting plainly demonstrated that she did not consider that the deed had been delivered so as to pass title in December, 1964. Although she recited that she had deeded her home of 80 acres to the boys, and gave her reasons, the wording used strongly indicates her intention that they were to take in the future. The boys “shall have a good deed to the farm.” The rock contract “shall go with the deed to Wesley and Wayne.” The royalties were to be used, to pay her funeral expenses and other obligations (still retaining control over the proceeds of the quarry) and after all accounts are settled the deed and lease “shall be turned over to the owners of the farm Wesley and Wayne Shroyer.” (Our emphasis.) This is not the language of a grantor who considered that she had previously transferred and relinquished all right, title and interest in a farm, by making and delivering a deed to the grantees. This “voice from the grave,” so to speak, weighs heavily in our determination that Jennie did not deliver the deed, and that as late as approximately three months prior to her death Jennie did not consider that she had already delivered the deed and given up the property to her intended beneficiaries, but rather considered it yet necessary to make a will providing for the postmortem delivery of the deed.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . (more accurately, the burden of persuasion)

      . Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883, 888 [19]. “A deed in the possession of the grantor is presumed never to have been delivered; especially where it was in his possession and under his control at the time of his death.” 23 Am. Jur.2d Deeds § 116. And see 26A C.J.S. Deeds § 184.

      . Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647, 649.

      . Reasor v. Marshall, 359 Mo. 130, 221 S.W.2d 111, 117; Mendenhall v. Pearce, 323 Mo. 964, 20 S.W.2d 670; Van Huff v. Wagner, 315 Mo. 917, 287 S.W. 1038; Meredith v. Meredith, 287 Mo. 250, 229 S.W. 179; Peters v. Berkemeier, 184 Mo. 393, 83 S.W. 747.

      . Tyler v. Hall, Mo.Sup., 106 Mo. 313, 322, 17 S.W. 319.

      . Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647, 649.

      . Wheeler v. Rines, Mo.Sup., 375 S.W.2d 48, 51 [4]; Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647, 649.

      . “A manual delivery of a deed is not conclusive proof of a delivery, since the transfer of the dominion and control over the deed must be unhampered with the reservation of any right of revocation or recall and must be with the intent to presently pass title [citing cases].” Klatt v. Wolf, Mo.Sup., 173 S.W.2d 933, 936 [5].

      . Reasor v. Marshall, 359 Mo. 130, 221 S.W.2d 111, 117 [13]; Wilcox v. Coons, 359 Mo. 52, 220 S.W.2d 15, 22 [8]; Forster v. Clark, 351 Mo. 59, 171 S.W.2d 647, 649.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Margie McGARRAH, Plaintiff-Appellant, v. Gale Gene STOCKTON, Defendant, State Farm Mutual Automobile Insurance Company, Garnishee-Respondent.
    No. 8751.
    Springfield Court of Appeals. Missouri.
    Feb. 8, 1968.

      Edward V. Sweeney, Monett, Emory Melton, Cassville, for plaintiff-appellant.
    Karl W. Blanchard, Blanchard & Van Fleet, Joplin, for garnishee-respondent.
   TITUS, Judge.

A collision of automobiles on February 16, 1963, begot plaintiff an unsatisfied $100,000 default judgment against defendant in the Circuit Court of Barry County. To aid execution, plaintiff summoned State Farm Mutual Automobile Insurance Company as garnishee. The garnishment action was court tried and the facts were stipulated. Garnishee disclaimed liability because, as it asserts, the policy issued defendant was effectively cancelled for nonpayment of premium on February 9, 1963, or seven days before the accident occurred. The trial court agreed with garnishee and plaintiff appealed. The limit of garnishee’s liability to defendant under the policy was “$10,000 for all damages arising out of bodily injury sustained by one person in any one accident.” This also is the limit of garnishee’s possible liability to plaintiff in garnishment, it constitutes the amount now in dispute and reposes appellate jurisdiction in this court. V.A.M.S. Const. art. V, §§ 3 and 13; V.A.M.S. § 477.040; Meyers v. Smith, Mo., 375 S.W.2d 9, 15(5); Nye v. James, Mo.App., 373 S.W.2d 655, 657(1).

The policy’s “Declarations” provided “The policy period shall be as shown under ‘Policy Period’ and for such succeeding periods of six months each thereafter as the required renewal premium is paid by the insured on or before the expiration of the current policy period. The ‘Policy Period’ shall begin and end at 12:01 A.M. standard time. * * * The premium shown is for the policy period and coverages indicated on page 1.” The stated premium was $52.10 and the “Policy Period” was for six months from November 23, 1962, to May 23, 1963.

After defendant had been continuously insured under the policy for sixty days, garnishee agreed “to continue such coverage in force until the expiration of the current policy period [but that] these agreements shall be void and of no effect: (a) if the premium for the policy is not paid when due.” Garnishee could “cancel this policy in accordance with the terms hereof by written notice, addressed to the named insured * * * stating when, not less than ten days thereafter, cancellation shall be effective * * * the effective date and hour of cancellation stated [in the notice] shall become the end of the policy period * * * If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected or as soon as practicable thereafter, but the payment or tender of unearned premiums is not a condition of cancellation.”

When defendant executed the application for the policy he paid garnishee’s agent the sum of $23.05. Both the application and the “Balance Due Statement” attached to-the issued policy stipulated the $26.05 balance of the premium was due to be paid', by January 23, 1963. Defendant did not pay or tender the balance due on January 23, 1963, or at any other time, and garnishee mailed him a “Cancellation Notice” on January 28, 1963, which advised that as “the full amount required to keep this policy in force” had not been received when due “this policy is cancelled, effective 12:01 A.M. Standard Time on * * * February 9, 1963.” Defendant received the notice and does not complain of its form or timeliness in so far as the ten day policy requirement is concerned. Garnishee advised defendant on February 20, 1963, it was sending him, through its agent, a check for the unearned premium. The $4.06 check was mailed by the agent to the defendant but he refused to accept it.

Erudite counsel’s ingenuity to concoct unique arguments supporting plaintiff’s contention the policy was effective on the casualty date, was not, unfortunately, applied in any effort to comply with V.A. M.R. 83.05(a) (3) and (e). The lone “point” upon which plaintiff relies in her brief is “The Circuit Court erred in finding that the garnishee respondent had the right to cancel the policy of insurance prior to the date of loss and erred in holding that by making such cancellation garnishee respondent is therefore not liable to plaintiff.” The “point” does not undertake to relate, as required by the rule, “wherein and why” the trial court allegedly erred in finding garnishee could cancel the policy or to advise “why it is contended the Court was wrong” in adjudging garnishee not liable to plaintiff. Appellate courts have so often and so long forborne administering the coupe de grace to appeals for similar procedural faux pas, many appellants may now believe they have acquired, through immemorial disobedience without harm, a- prescriptive right to breach the rule. Like restraint on our part in this cause should not be interpreted as condonation of the infraction but as a desire towards disposition of the case on its merits. V.A.M.R. S3.24.

Remembering the policy was cancelled under the provisions which permitted this to be done by garnishee “if the premium for the policy is not paid when due,” and admitting defendant “purchased the policy for a policy period from November 23, 1962, to May 23, 1963,” at the stated premium of $52.10, plaintiff acknowledges inability to find any authority favorable to and “squarely in point” with the theories she advances. By resorting to the “argument” portion of her brief, we find plaintiff initially contending the $26.05 paid by defendant when he signed the policy application amounted to a separate purchase of insurance coverage “for the three months period from November 23, 1962, to February 23, 1963,” .and the “balance due” defendant was to pay on January 23, 1963, represented a separate premium required to procure coverage for an additional and distinct three month period from February 23, 1963, to May 23, 1963. Having for her purposes thus bisected both the stated premium of $52.10 and the “Policy Period” designated in the insurance contract, plaintiff next insists garnishee could not effectively cancel the policy for the nonpayment of premium “when due” prior to the expiration of the first three months of the policy period because the premium for that term had been paid. Plaintiff cedes that defendant’s failure to pay the “balance due” on January 23, 1963, voided garnishee’s agreement to keep the policy in effect for the six month period of the policy, but only permitted garnishee, upon proper notice, to effect cancellation on some date subsequent to the expiration of the initial three months of the policy period. Predicated upon her assumptions the $52.10 premium and the six month policy period designated in the contract could be divided into two equal parts and that a separate premium for the first separate half of the “Policy Period” had been paid, plaintiff additionally asserts (and this claim is not altogether clear to us) the policy is ambiguous because it does not specify when cancellation was to become effective if the balance due on January 23, 1963, was not paid.

A shortcoming in plaintiff’s argument lies in the fact we are confronted with a written contract which stipulates one “Policy Period” for a designated single premium stated in one sum. The amount of the premium, the risk assumed by the insurer, and the duration of the assumption of that risk are correlated, inseparable from each other, and their union constitutes the essence of the agreement. It is essential the period of the risk or the terminus a quo and ad quem be agreed upon so the duration of the risk can be fixed or determined. The “Policy Period” and the amount of the premium may be ascertained only by reference to the insurance contract. 1 Couch on Insurance 2d, Section 2:5 and 2:8, pp. 107-108 and 110; 44 C.J.S. Insurance § 332, p. 1270. The agreement between defendant and garnishee used “Policy Period” in its singular grammatical sense “denoting only one” period and provided each succeeding policy period, if any, would be for a like term “of six months each.” The word “period” with reference to time, refers “to a continuous period.” Barrows v. Riss & Co., 238 Mo.App. 334, 179 S.W.2d 473, 475; 70 C.J.S., pp. 452-453. Thus the “Policy Period” contracted for was one undividable continuous period of six months duration extending from November 23, 1962, to May-23, 1963.. The premium was likewise agreed to be one stated sum in the amount of $52.-10. Although it was understood “the premium” could be paid in two installments, it nevertheless was required “the balance” necessary to pay the premium was due January 23, 1963. The consideration given for insurance for a specific term is not divisible although the premium is payable in installments. By employing the term “balance” it was clear the $26.05 due to be paid sixty days after the inception of the risk was in satisfaction of the single premium stated and not consideration for a separate three month term which would not commence until thirty days hence. The word “balance” is “never used to signify the whole of a thing * * * nor is it ever used to signify any precise quantity or definite proportion of a thing, and is as equally applicable to a small as to a large quantity or proportion.” 8 C.J.S. p. 584. Contract provisions establishing the premium and the “Policy Period” could not be altered or divided by the unilateral desires or actions of the defendant without the assent of garnishee and we are unaware of any authority, under the guise of a distorted quantum valebat or quantum meruit action, which would vest an insured, a beneficiary or a judgment creditor with any interest in a portion of a stipulated policy period proportionate to the partial payment of a single premium an insured might have made. “The obligation to pay the premium when due is ordinarily an indivisible obligation to pay the entire premium, so that a forfeiture is not prevented by part payment thereof. This means that a part payment will not keep the policy in force for even such a proportionate part of the new period as the sum bears to the whole premium due.” 6 Couch on Insurance 2d, Sec. 32:111, p. 331. “Partial payment, even when accepted as a partial payment, will not keep the policy alive even for such fractional part of the year as the part payment bears to the whole payment.” Clifton v. Mutual Life Insurance Co. of New York, 168 N.C. 499, 84 S.E. 817, 818(1). Theories and arguments similar to those here presented by plaintiff were long ago rejected in Willcuts v. The Northwestern Mutual Life Insurance Company, 81 Ind. 300. Also see, 6 Appleman, Insurance Law & Practice, Sec. 8016, pp. 293-297.

Plaintiff refers us to MFA Mutual Insurance Co. v. Southwest Baptist Col., Inc., Mo., 381 S.W.2d 797, 801(2), which states that “Under the existing law a cancellation [of an insurance policy] by one party without the other’s assent could not be accomplished except upon strict compliance with the conditions provided in the policy for cancellation.” If we comprehend plaintiff’s argument aright, she does not contend garnishee did not strictly follow the formalities for cancellation as prescribed in the policy. Rather plaintiff asseverates the sum defendant did pay was a payment pro tanto or a payment for so much of the policy period as $26.05 would buy on a pro rata basis and defendant had no authority to cancel for nonpayment of premium during that term. We have already expressed our opinion to be contra to this theory and rule there was a nonpayment of the premium when defendant failed to pay the balance thereon on January 23, 1963.

Under the terms of the insurance contract in question, return of the unearned premium was not a condition precedent to cancellation but was a consequence of cancellation. Ireland v. Manufacturers and Merchants Indemnity Co., Mo.App., 298 S.W.2d 529, 533-534(5); Summers v. Travelers Insurance Co., 8 Cir., 109 F.2d 845, 847, 127 A.L.R. 1336(7). With monotonous regularity decided cases repeat the rule that ambiguous language in an insurance policy is to be construed liberally in favor of the insured and strictly against the insurer. But we detect no ambiguity in the cancellation provisions of the policy and like or similar provisions were held not to be ambiguous in Ford Motor Credit Co. v. Commonwealth Co. Mut. Ins. Co. (Tex.Civ.App.) 420 S.W.2d 732, 734, and Medford v. Pacific Nat. Fire Ins. Co., 189 Or. 617, 219 P.2d 142, 148, 16 A.L.R.2d 1181, rehearing denied 222 P.2d 407. The cancellation provision is in the usual form. 7 Williston on Contracts, 3rd Ed. Sec. 920, p. 608. The policy clearly gave garnishee the right to cancel the policy if the premium was not paid when due by giving written notice “when, not less than ten days thereafter, cancellation” would be effective. This was done, and as the policy further provided the time and date stated in the notice would determine “the end of the policy period,” ascertainment of when the cancellation would become effective is not difficult to come by. Without ambiguity there is no occasion for construction but only occasion to grant effect to the plain meaning and terms of the policy. Wichman v. Aetna Casualty and Surety Company, Mo.App., 412 S.W.2d 528, 532-533(3); Barrett Plaza, Inc. v. Northwestern Mutual Ins. Co., Mo.App., 411 S.W.2d 265, 267(2); Kisling v. MFA Mutual Insurance Company, Mo.App., 399 S.W.2d 245, 248(2). The premium was not paid when due, proper and timely notice was given as required by the contract, and the trial court was correct in finding the policy had been effectively can-celled before the collision occurred. Accordingly, the judgment appealed from is affirmed.

HOGAN, P. J., and STONE, J., concur.


author: HOWARD, Presiding Judge.

text:
    Ex parte Nicholas Charles DeGRACE.
    No. 24910.
    Kansas City Court of Appeals. Missouri.
    Feb. 12, 1968.

      D. L. Manford, Bellemere & Bellemere, Kansas City, for relator.
    Howard L. McFadden, L. Michael Lorch, Asst. Attys. Gen., Norman H. Anderson, Atty. Gen., Jefferson City, for respondent.
   HOWARD, Presiding Judge.

ORIGINAL PROCEEDING IN HABEAS CORPUS

This is an original proceeding in habeas corpus instituted on the petition of Elizabeth DeGrace, the natural mother of Nicholas Charles DeGrace, a minor under the age of seventeen years, seeking his release from the Missouri State Training School for Boys, Boonville, Missouri. Nicholas was committed to the training school on December 27, 1966, by the Juvenile Division of the Circuit Court of Clay County, Missouri.

In response to the mother’s petition our writ duly issued and return was made, justifying custody on the basis of such commitment. Evidence was heard by this Court, briefs were filed by the respective parties and oral argument heard. Petitioner seeks the release of her son on the basis that his constitutional rights, both state and federal, were violated in the proceedings before the juvenile court leading up to his commitment. Petitioner relies almost entirely on the decision of the Supreme Court of the United States, May 15, 1967, in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

It is claimed that the juvenile court proceedings were unconstitutional in three respects: (1) Failure to give adequate and timely notice, (2) failure to advise the juvenile and his parents of their right to counsel, and (3) failure to advise of the privilege against self-incrimination.

At the habeas corpus hearing before this court a complete transcript of the juvenile proceedings was introduced in evidence. The proceedings in the juvenile court began on March 25, 1966, when the juvenile officer of Clay County, Missouri, filed a petition in juvenile court alleging that Nicholas Charles DeGrace is in need of the care and treatment of the court because he is alleged to have violated a state law or municipal ordinance, to-wit:

“That on or about March 19, 1966, in Clay County, Missouri, he and four other juveniles (3 boys and 1 girl) did drink alcoholic beverages and spend the entire night in a motel cabin; that on or about March 11, 1966, he drank alcoholic beverages; that he has been drinking alcoholic beverages for approximately a year; that he has been truant from school on several occasions, is out of the control of his parents and in need of the care and treatment of the Court.”

Summons and copies of this petition were served on the parents on March 29, 1966. The hearing in juvenile court was set for April 15, 1966, but was continued to April 21, 1966 because of the illness of the juvenile. Nicholas was born September 23, 1952, so that he was 13 years of age at the time of this hearing and his 14th birthday would be September 23, 1966.

At the commencement of this hearing, the judge advised the juvenile and his parents that they were “entitled to be represented by a lawyer if you so desire.” The judge further told them: “Well, this is entirely your decision. It is up to you.” When the judge asked “Do you wish to have an attorney represent you, Mr. and Mrs. De-Grace, and Nicholas?” the mother replied “No, your Honor, I think we can carry on without counsel” and the father said “I don’t see what I am going to need a lawyer for.” They then indicated that they were ready to proceed with the hearing.

Nicholas first came to the attention of the juvenile officers on September 28, 1965 (just after his 13th birthday) when he “was picked up for harrassing” a named individual at a trailer court. On December 12, 1965, he was referred to the juvenile office by his school for truancy; and again for truancy on March 2, 1966.

The next contact that Nicholas had with the juvenile court was the result of the petition filed on March 25, 1966 as heretofore quoted. At the hearing held on April 21, 1966, it developed that Nicholas along with four other juveniles (3 boys and 1 girl) bought some liquor from a man in Liberty. They gave him the money and he went to the liquor store and bought the liquor for the juveniles. They got beer, malt liquor, cherry vodka and other items. They drank these and ended up spending the night in a cabin of the motel owned by Nicholas’ parents. Considerable damage was done to the cabin. Holes were punched in the ceiling, windows were broken, a bed torn up, etc. This cabin had been rented to a truck driver who could not be found and did not testify. It appears that Nicholas passed out about the time or soon after the group arrived at the cabin and that he did not cause any of the destruction.

When Nicholas did not return home, the mother and an older son instituted a search for him. The father was working that night. They apparently contacted the Liberty police, the Kansas City, Missouri, police and others in their search for Nicholas.

The evidence does not disclose exactly when or how Nicholas returned home. When the damage to the cabin was discovered, it was reported to the Liberty Police Department and in the investigation of the damage Nicholas’ shirt was found. The police and Mrs. DeGrace began to put 2 and 2 together and connected the juveniles with the damaged cabin which led to the discovery of what had happened that night.

It appears that this was the second time within a few days that Nicholas and other juveniles had secured liquor through this same adult. He was prosecuted in the magistrate court and sentenced to ten days in jail. He was in jail at the time of the hearing and did not testify. It also appeared that Nicholas had drunk beer and liquor a few other times. The evidence further disclosed that Nicholas’ school work was very, very poor. At the conclusion of the hearing, the court found that on March 19, 1966, Nicholas, together with other juveniles did “drink alcoholic beverages and spent the entire night in a motel cabin owned and operated by his parents; that on March 11, 1966, he drank alcoholic beverages and has been drinking alcoholic beverages for about six months; that he has been truant from school and is out of the control of his parents”. The court further found:

“That said child is in need of the care and treatment and is in need of training school education and discipline under the charge of the State Board of Training Schools because his behavior, environment and associations are injurious to his welfare and the welfare of others.
“That said child be granted probation; and that he is in need of the care and treatment of the court.”

It is to be noted that the finding of the juvenile court as set out above would have justified and supported a commitment to the State Board of Training Schools. However, the court did not commit Nicholas at this time but placed him on probation and returned him to the home of his parents. The order of the court reads as follows:

“WHEREFORE, it is considered, ordered, adjudged and decreed by the court that said child be made a ward of this court until he reaches the age of eighteen years; placed in the care and custody of the juvenile officer and to be returned to the home of his parents under probation; all subject to the further order of the court.”

Nicholas next appeared before the juvenile court on September 8, 1966. At this time he and his parents were represented by an attorney. A few days before this hearing Nicholas, with two other juveniles, had taken the car of the oldest juvenile’s mother without her permission and run off to Oklahoma City where they were picked up by the police and returned to Clay County. Nicholas, although still not quite 14, had done a considerable amount of the driving on that trip. It appears that the boys planned the trip on Friday and left late Friday night. That Friday was the regular day Nicholas was supposed to report to the juvenile officer in connection with his probation. His mother called and reported that he was ill and unable to appear but he went to the picture show in Liberty that evening and left town after the show. At the hearing, the parents and their attorney advised the court that they had hopes of getting Nicholas into Boys Town, Nebraska. The court’s order directed the juvenile officer to investigate the possibility of securing admission to Boys Town and Nicholas was remanded to his parents and continued on probation.

Apparently, the attempt to place Nicholas in Boys Town, Nebraska was unsuccessful because on the 23rd day of September, 1966, the court ordered Nicholas continued on probation and placed in the home of his paternal aunt and her husband, Anita and Ross Capps. That order reads as follows:

“WHEREFORE, it is ordered and adjudged by the court that said Nicholas Charles DeGrace, be continued on probation and placed in the home of the paternal aunt and uncle, Anita Capps and Ross Capps, 10414 East 39th Street Terrace, Kansas City, Missouri. It shall be a condition of his probation, among conditions, that said Nicholas Charles De-Grace not come to Clay County, Missouri unless accompanied by said aunt and uncle; all subject to the further order of the court.”

Thereafter, on December 22, 1966, the juvenile officer advised the court that Nicholas could not be located and a pickup order was issued. A hearing on alleged violation of probation was held on December 27, 1966. At this hearing it appeared that Nicholas had not remained with his aunt and uncle as required by the condition of his probation. He had returned to Clay County in violation of such probation order and although he was just over 14 years of age, he had been driving a car which was involved in a wreck in Clay County, Missouri on Friday, December 17, 1966. At the time of the accident Nicholas and another young juvenile ran from the scene and were not present when the officer who investigated the accident arrived. Nicholas gave two conflicting statements concerning this wreck to the juvenile officer. First, he stated that he was not the driver, and later he stated he was the driver at the time of the wreck. At the hearing, he testified that he was not the driver of the automobile at the time of the wreck. Each of the three other boys that were in the car testified that Nicholas was che driver of the car at the time of the wreck. The evidence showed that Nicholas had been in Clay County and not accompanied by his aunt and uncle on numerous occasions; at times he came to Clay County with his older married sister.

At the habeas corpus hearing before this court, his mother testified that she brought Nicholas home from his aunt’s house and drove him to school in Independence every day and to church on Sunday. She admitted that she did not advise the juvenile court of this situation. At the conclusion of this hearing, the court made the following factual findings and ordered Nicholas committed to the State Training School for Boys, Boonville, Missouri. The finding and order read:

“That said child has violated the conditions of his probation by operating a motor vehicle and having an accident in Clay County, Missouri; by violating the court order in coming into Clay County, Missouri; not in the company of his uncle and aunt, Mr. and Mrs. Ross Capps, and by associating with boys of bad reputation; and that his probation be revoked.
“That said child is in need of care and treatment and is in need of training school education and discipline under the charge of the State Board of Training Schools because liis behavior, environment and associations are injurious to his welfare and to the welfare of others.
“WHEREFORE, it is by the court considered, ordered, adjudged and decreed that said child be and is hereby declared in need of training school education and discipline and is accordingly committed to the custody of the State Board of Training Schools to be by them dealt with in all respect as required by law for an indeterminate period but no longer than the period until such child shall have attained the age of twenty-one. The sheriff of this County is required to take temporary custody of said child and to deliver him to the custody of the superintendent of the Training School for Boys, Boonville, Missouri, for and in behalf of said Board.”

Thereafter, Notice of Appeal was filed appealing this order to the Kansas City Court of Appeals. Our records show that an application for release of Nicholas on bond was filed and denied by this court. This appeal was not perfected.

In this habeas corpus proceeding the argument in support of the claimed violation of constitutional rights goes to the factual situation surrounding the first hearing held April 17, 1966. Petitioner contends that the proceedings had in connection with that hearing were constitutionally defective and that, therefore, the commitment is void. At the time of the hearing of April 17, 1966, the court made findings which would have supported a commitment to the Training School for Boys but the court did not order such commitment. Rather, as heretofore stated, Nicholas was made a ward of the court until he reached 18. The court placed him on probation and remanded him to the custody of his parents. After the hearing of September 23, 1966, Nicholas was continued on probation and placed in the custody of his aunt and uncle. The evidence at this time showed a violation of his probation. It was not until the hearing of December 27, 1966 where the evidence again showed serious violation of probation and violations of law which would support commitment, independent of the parole violation, that the court committed Nicholas to the State Training School for Boys. Consequently, we cannot consider the issues raised in the light of the hearing of April 17 alone; rather we must consider petitioner’s claim in the light of all of the proceedings heretofore outlined which must all be taken together to constitute the whole.

Since petitioner relies almost exclusively on the decision of the United States Supreme Court in the Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, a short statement of that case is in order. Gerald Francis Gault was a resident of Gila County, Arizona. On June 8, 1964, he and a friend were taken into custody by the sheriff as a result of a verbal complaint by a neighbor woman that she had received telephone calls “in which the caller or callers made lewd or indecent remarks.” The juvenile officer filed a petition with the court on the following day. It was not served on the Gaults; it was neither given nor shown to Gerald or his parents. The petition was entirely formal. It made no reference to any factual basis for the judicial action which it initiated. On this same day, the first of two hearings was held. No one was sworn at this hearing, no transcript or recording was made, no memorandum or record of the substance of the proceedings was prepared. Gerald was kept in a detention home from the time he was picked up on June 8th until he was released on either June 11th or 12th. There was no explanation in the record as to why he was kept in the detention home or why he was released. On the day Gerald was released, his mother received a note on plain paper signed by the last name of the juvenile officer advising that the judge had “set Monday June 15, 1964 at 11:00 A.M. as the date and time for further Hearings on Gerald’s delinquency”. No record was made of this second hearing at the conclusion of which the judge entered an order which recited that “after a full hearing and due deliberation the Court finds that said minor is a delinquent child, and that said minor is of the age of 15 years.” Gerald was committed as a juvenlie delinquent to the State Industrial School “for the period of his minority”. Habeas corpus was applied for by Gerald’s parents and in the absence of a transcript of the proceedings in juvenile court, oral testimony was taken at the hearing on habeas corpus as to what proceedings were had and what evidence was heard in the hearing in juvenile court. This evidence was conflicting but the juvenile judge testified that his action in committing Gerald rested largely upon the fact that Gerald had admitted making some of the lewd remarks although not the more serious ones. This admission by Gerald was controverted by the testimony of other witnesses. At the juvenile hearing, neither Gerald nor his parents were advised of their right to counsel although his mother did testify that “she knew that she could have appeared with counsel at the juvenile hearing.”

On appeal to the Supreme Court, the Gaults contended that the commitment of Gerald violated the provisions of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the specific rights given by the Fourth and Fifth Amendments. The court concluded that the Due Process Clause did apply to juvenile proceedings and that the requirements of the Bill of Rights were carried forward and became requirements as to state juvenile procedures by the Fourteenth Amendment. The court said: “* * * neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” The court further stated: “Under our Constitution, the condition of being a boy does not justify a kangaroo court.”

As to the matter of notice in the Gault case, there was no notice. The juvenile was arrested and detained before any petition was filed in court. The petition as filed did not contain any factual statement of the charge against the boy. Such petition was never served on or shown to the juvenile or his parents. The parents found out through their own investigation that Gerald was held at the detention home, and when the mother went to the home she was orally advised by the deputy probation officer who was the superintendent of the home that there would be a hearing at 3 o’clock on the following afternoon. As to the requirement of notice sufficient to satisfy due process, the Supreme Court said, 87 S.Ct. l. c. 1446:

“ * * * Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity. ’ * * * Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. * * * ”

In the case at bar, it appears that the notice specifically alleged the factual basis for the charge of Nicholas’ delinquency; that it was filed on March 25, 1966 and served on the parents on March 29, 1966. The court order issued pursuant to this petition set the hearing initially for April 15, 1966 and, because of Nicholas’ illness, the hearing was continued until April 21, 1966. Thus, it appears that 23 days elapsed between service of the notice and the date the hearing was held. We conclude that this amply complied with the requirements of due process as found in both state and federal constitutions, both as to timeliness of the notice and its contents.

Petitioner next contends that the proceedings were in violation of the state and federal constitutions because neither the juvenile nor his parents were advised of their right to counsel. At the habeas corpus hearing before this court, the mother testified that she asked the juvenile officer if she should hire a lawyer and that the juvenile officer advised her that a lawyer would not do any good. It is argued that this incident rendered the action of the juvenile judge at the hearing on the matter of representation by attorney a mere formality and robbed such proceedings of any substances. With this we cannot agree. It will be remembered that at the very outset of the hearing, the juvenile judge advised Nicholas and his parents that they were entitled to be represented by a lawyer if they so desired and that representation or no representation was entirely their decision. The court specifically inquired if they desired to be represented by counsel and the mother and father both separately stated that they did not desire counsel. Thus, it cannot be said that their constitutional rights were denied. Regardless of the statement of the juvenile officer, the decision as to whether or not they should retain an attorney was one to be made by the parties and not by the juvenile officer. The court clearly advised them in the premises and they made their own decision as to the efficacy of counsel under the circumstances. They knew their rights and they knowingly waived them.

The record shows that at the second hearing of September 8, 1966, Nicholas and his parents were represented by counsel of their own choosing. At the third and last hearing on December 27, 1966, Nicholas and his parents were represented by a different lawyer of their own choice. After the appeal was filed an application for release on bond was presented to this court by still a third attorney representing Nicholas and his parents. This habeas corpus proceeding has been initiated by a fourth attorney and at the hearing before this court, the- mother testified that she had consulted still other attorneys.

Lastly, petitioner complains that the juvenile officer took statements from Nicholas without advising him of his right to counsel or of his privilege against self-incrimination and that Nicholas was asked and answered questions in court without being advised of his privilege against self-incrimination. Petitioner contends that the action of the court was not based on other evidence but was based solely on the testimony of the minor.

These juvenile proceedings were conducted in chambers in an informal manner. The mother testified at the habeas corpus hearing that when the juvenile officer asked Nicholas to come into her office she told him to go in and tell the truth. At the hearing before the juvenile court, she stated that she was proud of Nicholas because he had told the truth. No suggestion was made at the hearing that Nicholas should not testify and both parents made factual statements at the hearing concerning the actions of Nicholas.

While the testimony of Nicholas filled out the details as to the procuring of the alcoholic beverages, the drinking of the same and staying all night in the cabin, the essential facts were established by the testimony of others. In the second hearing, Nicholas again testified as to some of the details of the running-away trip to Oklahoma City, but there was other evidence. In both of these hearings, the statements of both the court and the parents show that there was in fact no contest that Nicholas had done what he was charged with and the only issue to be considered was what should be done with Nicholas in light of such facts. In the third and final hearing, Nicholas denied having been the driver of the car at the time of the wreck but he did admit being in Clay County not in the company of his aunt and uncle in violation of the probation order and associating with certain individuals, also in violation of such order. The testimony of the mother before this court shows a continued pattern of violation of the probation order and its requirement that Nicholas come to Clay County only in the company of his aunt and uncle and that such violation was with her knowledge and assistance. The facts of Nicholas’ presence in Clay County and operation of the automobile at the time of the wreck were clearly established by the testimony of independent witnesses with personal knowledge thereof.

As to self-incrimination, the Supreme Court in its opinion in Application of Gault, supra, emphasized that “The Juvenile Court Judge testified at the habeas corpus hearing that he had proceeded on the basis of Gerald’s admission at the two hearings.” The court pointed out that “Neither Gerald nor his parents was advised that he did not have to testify or make a statement, or that an incriminating statement might result in his commitment as a ‘delinquent’ ”. As to the applicability of the constitutional privilege against self-incrimination, the court said: “We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults.” The court reiterated that the judgment of the juvenile court was based on Gerald’s admissions and concluded that “Apart from the ‘admission,’ there was nothing upon which a judgment or finding might be based. There was no sworn testimony” at the Gault hearings. The court concluded that the juvenile proceedings were constitutionally invalid because of the failure to advise Gerald of his privilege against self-incrimination and because the judgment of the court was based only upon such improperly received evidence.

In the case at bar, the action of the juvenile court in placing Nicholas on probation on two different occasions and finally in committing him to the Training School is amply supported by evidence independent of the admissions and testimony of Nicholas. It is this commitment to the Training School which is sought to be set aside by this habeas corpus proceeding.

On the basis of the foregoing, we con-conclude that the proceedings in the juvenile court of Clay County, Missouri which resulted in the commitment of Nicholas Charles DeGrace to the State Training School at Boonville, Missouri, were not constitutionally defective as claimed by petitioner and that our writ heretofore issued should be and the same is hereby quashed.

CROSS, J., concurs.

MORGAN, J., not participating because not a member of the Court when the case was submitted.


author: TOWNSEND, Commissioner.

text:
    James BRYANT, Plaintiff-Appellant, v. BRYANT CONSTRUCTION COMPANY, Inc., Arvin T. Mueller and Iona E. Mueller, Defendants-Respondents.
    No. 32715.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 20, 1968.
    Leyhe, Jacobsmeyer & Meyer, R. W. Jacobsmeyer, William H. Leyhe, III, Clayton, for plaintiff-appellant.

      Ray B. Marglous, Clayton, for defendants-respondents.
   TOWNSEND, Commissioner.

Action by sub-contractor to impose a mechanic’s lien upon real estate owned by the defendants Mueller. From a judgment in favor of the Muellers in a jury-waived case, plaintiff appeals.

In his proceeding plaintiff brought this action against Bryant Construction Company, joined the Muellers as defendants, prayed that his account against the construction company be adjudged a mechanic’s lien against the premises of the Muellers and that special execution issue against the Mueller premises if sufficient assets of the construction company cannot be found to satisfy the judgment against it. Bryant Construction Company defaulted and judgment was rendered against it for $952.21 plus interest at the same time that judgment was entered in favor of the Muellers.

Following Rule 73.01(d), V.A.M.R., this Court “review[s] the case upon both the law and the evidence as in suits of an equitable nature.”

In the Spring of 1959 Mr. and Mrs. Mueller decided to build an addition to their home. Mrs. Mueller testified in substance as follows: The subject of a two-room addition to their house and the remodeling of the kitchen was discussed and agreed upon by husband and wife, blueprints were prepared and Mrs. Mueller approved them. The type of cabinets and the kind of stove to be installed in the addition were discussed with Mr. Mueller. The stove was of a type which she wanted. The placement of the cabinets and their colors were approved by her at the time the plans for the addition were drawn up.

Mrs. Mueller along with her husband executed the note and the deed of trust necessary for the procurement of a loan to finance the contemplated addition. In answer to an interrogatory asking whether or not the defendants Mueller entered into a contract with Bryant Construction Company for improvement of the property in question the Muellers answered Yes. However at the trial Mr. Mueller was permitted to state, over objection, that Mrs. Mueller did not sign the contract with the Bryant Construction Company.

According to the testimony of the plaintiff, James Leo Bryant, he entered into a contract with the Bryant Construction Company to furnish and install the cabinets for the intended addition. There was no precise description of the cabinets to be furnished, the choice presumably being left to the Muellers; this was apparently a matter of no concern to plaintiff since he was to furnish and install the cabinets on a cost plus basis. Plaintiff states that he called the Morgan-Wightman Company and procured them to visit the home of the Muel-lers and there measure the areas intended to receive the cabinets, — “ * * * and they come out and measured for the cabinets and talked to them about what all they wanted in there * *

“Q. What did you instruct Morgan-Wightman to do, sir?
A. To go out and get the measurements on the job and to get together with the Muellers and see what type of cabinet was going in.
Q. And you don’t know if they did or not?
A. Well, I got a sketch back. I don’t know if we have it yet or not, but I’m sure we got a sketch back. They drawed a sketch just exactly of what it was supposed to be, as to the type of material and the type of cabinets that was supposed to go in there.”

Defendant Arvin Mueller testified that no one other than one Simpson, an employee of Bryant Construction Company, came to his home to take the necessary measurements for the cabinet spaces and that after this had been done he (Mueller) went to the establishment of Morgan-Wightman with Simpson and L. J. Bryant where they picked out the cabinets to be installed.

The only physical evidence of plaintiff’s asserted contract with Bryant Construction Company is found in this attenuated form, introduced as plaintiff’s exhibit 1:

“To Bryant Const. Co.
10557 Oak
Overland 14, Mo.
We agree to furnish and install cabinets for kitchen on job known as Mueller job located in St. Johns Mo.
June 20, 1959
[s] James L. Bryant
Acceptance of Agreement
[s] Bryant Const. Co
Leonard J. Bryant.”

Plaintiff did no work on the premises in question owing to the fact that he became fully engaged thereafter in his work on another job and had no time to make the Mueller installation. Nevertheless the cabinets were delivered to the intended place of installation and the actual work of installation was thereafter at his request performed by employees of the Bryant Construction Company. Plaintiff states that under his contract with the Bryant Construction Company he was to be paid the cost to him of the cabinets actually supplied, plus ten percent for installation, ten percent for overhead and ten percent for his profit.

The plaintiff placed in evidence the various billings from Morgan-Wightman, each of which showed under the head of Routing Requested, or “Job REF”, the address of the Muellers’ home, 3612 Eminence, with the added notation, “Arvin T. Mueller, Owner”. Each such billing was made to'“J. B. Bryant”, at plaintiff’s home address. Plaintiff states that he purchased all such items from Morgan-Wightman.

Bryant Construction Company was (or is) a corporation in which plaintiff’s brother, Leonard Joseph Bryant, was the leading light. Plaintiff testified that he and his brother had never been partners, that at the time of making the contract with Bryant Construction Company they had no other type of business or financial relationship, that they had never worked together as a “unit”, that the last time he had worked with his brother was when he (plaintiff) was fifteen or sixteen years old, a period antedating the time of the trial by about twenty years, and that the contract for the cabinets was the only occasion upon which he had ever had a contract with his brother. When asked whether there had ever been any occasions when supplies had been charged to him but used by his brother or the latter’s corporation, the witness answered “None”, and then: Q. “Have you ever authorized any supplies or equipment to be charged to you, which, in fact, were used by your brother?” A. “No”, and Q. “Now, you did know this, sir, that at Morgan-Wightman, your brother was unable to obtain credit; you knew that, didn’t you?” A. “No”. This line of questioning culminated in these questions and answers : Q. “Now, I am asking you specifically, if he [Leonard Joseph Bryant] ever asked you if he could bill through you, so that he could get these cabinets from Morgan-Wightman?” A. “No”. Q. “And it is your testimony that that [use of plaintiff’s name in order to buy material] did not happen, and that it did not happen with Morgan-Wightman, is that correct?” A. “No, it never happened with them.”

In answer to interrogatories the defendants Mueller stated that the whole of a described list of items was furnished to them by Bryant Construction Company and that all were used and entered into the construction of the improvements to their real estate. The items so listed were the same as those alleged in plaintiff’s petition to have been furnished to the home of the Muellers.

In the present action plaintiff sues for the principal sum of $1052.21, the total amount of the billings from Morgan-Wight-man and the same as the amount of the filed mechanics lien dated November 23, 1959. Plaintiff testified that he had been paid $100 by the Bryant Construction Company but could not recall the date- — -in any event he took the payment “right to” Morgan-Wightman. Otherwise there is no evidence of the payment of any sum by or to any of the persons named in this opinion.

Arvin Mueller testified also that he was present when plaintiff testified at the trial in the Magistrate Court. These questions and answers followed:

“Q. Did you have occasion during the course of his examination, either direct or cross, in the Magistrate Court, to hear his testimony? A. Yes.
Q. And did you hear any statements, or remember any statements -made by Plaintiff Bryant concerning his relationship with the Bryant Construction Company, namely, his brother Bryant, and Plaintiff Bryant, and Morgan-Wightman Lumber Company? A. Yes.
Q. What, if anything, was said concerning that relationship?
A. That L. J. Bryant used James L. Bryant to get credit at Morgan-Wight-man.
Q. Did he say for what purpose ?
A. Yes, to get the cabinets for my home.
Q. Did he say for what reason he did this?
A. Yes, because he was denied credit at Morgan-Wightman.
Q. You mean, you are referring now to the brother Bryant?

A. Right, L. J.”

The issue is whether, in the wording of the Mechanics’ Lien statute, plaintiff James Leo Bryant was a person who “furnish [ed] any material * * * for any building, erection or improvements upon land * * under or by virtue of any contract with the owner or proprietor thereof, or his * * contractor.” Section 429.010, RSMo 1959, V.A.M.S.

The initial question here is: Was there a contract between plaintiff and Bryant Construction Company, the contractor for defendants Mueller? While the agreement alleged by plaintiff called for him both to furnish the cabinets and to install them, he was, according to his testimony, released from the obligation to install by a recission of part of that contract. If his assertion of contract is accepted that release would still leave existent his contractual duty to furnish the cabinets.

There is no evidence that anyone other than the plaintiff actually furnished the materials constituting the cabinets. The exhibits both of the defendants and of the plaintiff show that the cabinets were delivered to the premises of defendants and that the cost of the same was charged by Morgan-Wightman to plaintiff. There is no suggestion in the evidence that any person other than plaintiff became personally liable for the materials delivered. There is no evidence that plaintiff was a mere guarantor, that his obligation to Morgan-Wightman was merely collateral to that of some other obligor who was as to Morgan-Wightman the principal debtor; there was no such other principal debtor in the whole picture. We entertain no doubt that as between himself and Morgan-Wightman the plaintiff was the unconditional debtor for the materials actually delivered and hence that the cabinet materials were furnished by plaintiff.

Were those materials furnished by plaintiff under a contract with Bryant Construction Company? We give due regard to the opportunity which the trial court had to judge the credibility of witnesses. We appreciate that the trial judge may be singularly unimpressed by testimony characterized by grammatical errors, rough diction and lack of memory. However, initial doubt as to the credibility of a witness must be weighed along with other relevant evidence, produced outside the area of the witness’ testimony. We regard these facts as established by the evidence: Plaintiff procured Morgan-Wightman to sell the cabinet materials to him; those materials were invoiced to plaintiff, were intended by plaintiff to be used in improving the Mueller property, and were delivered to the Mueller property; plaintiff became the debtor for the materials so sold and delivered and he was the only debtor personally obligated to Morgan-Wightman for the purchase price .of the same. The query naturally arises: What caused plaintiff so to conduct himself? We cannot indulge in any assumption that plaintiff intended to confer a gratuity upon the Muellers. Proceeding to other facets of the evidence, we know that plaintiff had no contractual relationship to the Muellers — he had never known them. We are informed by both parties that Bryant Construction Company was under contractual duty to the Muellers to make the whole of the contemplated improvements. The materials procured by plaintiff were knowingly built into the addition by Bryant Construction Company. Despite the fraternal relationship of plaintiff and the head of the Bryant Construction Company, human experience teaches that we cannot assume from that fact an intention on the part of plaintiff to make a donation to Bryant Construction Company. The only reasonable inference from all these established facts is that plaintiff had an agreement with Bryant Construction Company for furnishing the materials in question. The statutory, requirement of furnishing material for a building under a contract with the owner or his contractor is satisfied.

Defendants Mueller maintain that the only possible function of the plaintiff in the transaction in question was that of a lender of credit and in the endeavor to show the relevance of that contention they cite Putnam v. Heathman, Mo.App., 367 S.W.2d 823. We think the attempted analogy fails. In the latter case the claimant entered in his lien statement an item designated as “advance labor” totalling $1900. At the trial it was shown that that sum had been advanced by the claimant for the purpose of enabling the recipient to pay the balance due under a contract for deed and was so used, the recipient taking title by warranty deed. In the subsequent mechanics lien proceeding the Court of Appeals held that the entry of $1900 was a non-lienable item and that its inclusion in the filed lien statement vitiated the whole of the statement, which included items that would otherwise be lienable. In the Putnam case that which was advanced was money; in the instant case that which was advanced was cabinet materials. The pertinent statute gives no lien for money loaned; it does give a lien for materials furnished. For the additional reasons that more fully appear in the immediately following paragraphs, we think that defendants’ attempt to assimilate the lending of credit to the lending of money must fail.

Defendant Arvin Mueller testified that he heard plaintiff testify at the trial in the Magistrate Court, approximately six years before; that testimony, admitted as an admission against plaintiff’s interest, has been previously recited. Assuming, without deciding, that Bryant Construction Company was in poor credit with Morgan-Wightman and had in fact been denied credit there, we fail to see how such facts are controlling under the circumstances of this case. The use of the generalized term, “lender of credit”, signifies nothing in and of itself. One may be a lender of credit in a variety of ways and until the manner in which credit has been loaned to another is shown with precision the proponent of the generality has established nothing. One may lend his credit by becoming the guarantor of the obligation of another; by contrast every sub-contractor lends his credit in some degree to his contractor — he procures labor and materials on his own credit and advances them to the contractor. That brings us to the specifics of the present situation. Defendants’ argument seems to imply that there was an obligation of Bryant Construction Company for which plaintiff becomes responsible. Plaintiff utilized his credit with Morgan-Wightman and became indebted to the latter. In so doing his indebtedness was primary; it was not secondary to an obligation of Bryant Construction Company to Morgan-Wight-man for there is no evidence of any such construction company obligation.

Assuming still the poor credit standing of Bryant Construction Company with Morgan-Wightman, we see nothing to be condemned in the format of the transaction adopted by the construction company. It matters not whether the sub-contractor was a brother of the head of the construction company or was a person bearing no family relationship to the latter. Moreover, it matters not whether the plaintiff utilized his credit standing to buy materials from a firm where the construction company was in poor credit or whether he bought on credit from any other wholesale firm able to supply the materials. If the whole transaction be viewed as a method or device for financing a contractor (no money being advanced) we detect nothing reprehensible therein so long as the sub-contractor furnishes the materials under a contract with his contractor.

At the conclusion of plaintiff’s evidence, defence counsel moved to dismiss as to Mrs. Mueller on the ground that there was “no evidence at all presented by the Plaintiff that she in any way signed the contract, or that she is a party to the contract, or that it had anything to do with her at all.” The court denied the motion “but I will take this matter with the case”. In the motion for new trial plaintiff assigned as error the “finding that defendant Arvin T. Mueller did not act as agent for defendant Iona E. Mueller when he signed the contract with defendant Bryant Construction Co., Inc., for the improvement of the Mueller home.” Plaintiff pursues that subject in his brief; on appeal defendants ignore the issue.

Plaintiff pleaded that at all pertinent times “defendants Arvin T. Mueller and Iona E. Mueller, his wife, were and still are the owners in fee simple” of the described premises. There is no other averment in the pleadings — nor is there any evidence— as to the nature of the Muellers’ tenancy. In the answer, Iona E. Mueller “states as a defense that she did not enter into a contract with the Bryant Construction Company, Inc., nor with James Bryant”. For present purposes, we assume that the Muell-ers held title as tenants by the entireties.

It may be taken as uncontroverted that where title to real estate is held under a tenancy by the entireties neither husband nor wife has the power to create a mechanics lien by his or her own individual act. E. C. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636, 640. Here the written contract with Bryant Construction Company for the addition to the Muellers’ home was signed by Mr. Mueller alone. Plaintiff contends that the other evidence in the record shows that Mr. Mueller in dealing with the contractor for the improvements acted as the agent of his wife and that the conclusion of the arrangements therefor constituted the concurrent acts of both husband and wife. If any such agency existed it was an implied agency, for there is no evidence that there was any expressed appointment of Mr. Mueller to act for his wife. In all probability the evidence would be insufficient for a finding that Mr. Mueller’s agency extended so far as to give him power to bind his wife to a personal liability for the contract price of the improvements. Plaintiff’s contention does not go that far, but plaintiff insists that the decided cases recognize the possibility of a limited agency of the husband to act for his wife, operating only insofar as the power to impose a lien upon their real estate is in question. A recognition of the distinction between these two types of agency is found in Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144, 152:

“The purpose of the mechanic’s lien act is not to create a personal indebtedness not otherwise existing, but only to provide a lien under the conditions enumerated in the act; and where, as in the case at bar, an owner contracts through an agent, the agent may either be one whose agency is sufficient in its scope to enable him to bind the owner personally for the value of the labor and material furnished, or he may be a person with such limited authority as to be unable to bind his principal personally for the work, but who, at the same time, by the exercise of the limited authority conferred upon him, will transmit to the person furnishing the labor and material the right to a lien upon the owner’s premises.”

There is obviously no rule of thumb by which to determine whether a wife has conferred upon her husband an implied authority to bind her interest to a mechanics lien by contracting for improvements to their real estate. Plainly some participation by the wife in the arrangements for the improvements or some connection with the contractor’s performance is necessary before any implication of the husband’s authority so to act for her can be deduced. Such implication cannot be derived from simple quiescense. R. D. Kurtz, Inc. v. Field et al, 223 Mo.App. 270, 14 S.W.2d 9, 11; nor can it be found from anything so lacking in positivity as mere wifely interest in the husband’s activities. Marshall v. Hall, Mo.App., 200 S.W. 770, 775.

Testimony of Mrs. Mueller as to her participation in the decision to improve their property was previously set out. Thus, she and her husband agreed to have the addition built, they discussed various details of the improvements to be made, plans were presented to them which Mrs. Mueller inspected and approved, at the time the plans were drawn up she picked the colors for the cabinets, there was no disagreement between her and her husband as to the type of work that was to be done. The most significant of Mrs. Mueller’s acts in relation to the question of implied agency was her execution of the note and mortgage for the purpose of financing the proposed improvements. Of such conduct the Springfield Court of Appeals said in E. C. Robinson Lumber Co. v. Lowrey, 276 S.W.2d 636, 640: “ * * * the stipulated fact that Mrs. Lowrey executed such deed of trust tends to indicate her knowledge of and participation in the building project and is evidence of such character as has been considered significant and important in other cases.” First discussing the lack of implied agency in the husband where the wife takes only a “wifely interest” in a proposed improvement, the Kansas City Court of Appeals stated: “The rule is different if the wife gives a deed of trust on her property to raise means to be used by the husband in making the improvement.” Bovard v. Owen, Mo.App., 30 S.W.2d 154, 156. And in Boeckeler Lumber Co. v. Wahlbrink, 199 Mo.App. 334, 177 S.W. 741, this Court found sufficient evidence of the husband’s implied authority in the wife’s execution of such a deed of trust, although there was no participation by the wife in setting the details of the construction project.

We think that the evidence shows such an intimate personal relationship of Mrs. Mueller to the decision to procure the improvements to the property as to justify the conclusion that when Mr. Mueller entered into the construction contract with Bryant Construction Company he did so not only in his own interest but in the interest of Mrs. Mueller with her consent and authority. Accordingly it is held that Mr. Mueller had the implied authority to subject her interest to the imposition of a mechanics lien through the instrumentality of such construction contract. The contract of plaintiff with Bryant Construction Company was a contract with her contractor within the meaning of the Mechanics Lien statute. It is found that plaintiff has a statutory mechanic’s lien upon the described real estate of the defendants Mueller, as of April 27, 1966, in the amount of $1390.20 and costs.

The judgment against Bryant Construction Company stands. The judgment in favor of the defendants Mueller is reversed and the cause is remanded to the Circuit Court of St. Louis County with directions, if property of Bryant Construction Company sufficient to satisfy the judgment against it in the amount of One Thousand Three Hundred Ninety and 20/100 Dollars, as of April 27, 1966, and costs, cannot be found, to cause special execution to issue against the following described real estate situated in St. Louis County, namely, Lot 4 of Northridge Subdivision according to the plat thereof recorded in Plat Book 35, page 72, of the St. Louis County Records, known and numbered as 3612 Eminence, in an amount sufficient to satisfy the judgment against Bryant Construction Company.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment in favor of the defendants Mueller is reversed and the cause is remanded to the Circuit Court of St. Louis County with directions, if property of Bryant Construction Company sufficient to satisfy the judgment against it in the amount of One Thousand Three Hundred Ninety and 20/100 Dollars, as of April 27, 1966, and costs, cannot be found, to cause special execution to issue against the following described real estate situated in St. Louis County, namely, Lot 4 of North-ridge Subdivision according to the plat thereof recorded in Plat Book 35, page 72, of the St. Louis County Records, known and numbered as 3612 Eminence, in an amount sufficient to satisfy the judgment against Bryant Construction Company

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

      . Insofar as the identity of Morgan-Wight-man’s book debtor has been questioned by defendants, that matter has been fully resolved by defendants’ own exhibits A and C. In their exhibit A, the attorney for Morgan-Wightman addressed plaintiff, James L. Bryant, threatening the filing of a mechanic’s lien against the premises of the Muellers “tvherein the -property sold to you now is”. This letter was addressed to plaintiff at the same address as that shown on the various billings for the cabinet materials. In defendants’ exhibit O the same attorney addressed the present attorney for defendants, enclosing “copies of our invoices with reference to the matter of James L. Bryant on the property located at 3612 Eminence Drive, St. Ann.”

      . The trial court made no findings of fact and entered no conclusions of law.

      . In the E. O. Robinson Lumber Company case the note and deed of trust were tendered to the materialman in settlement of his account.

      . Affirmed, 276 Mo. 662, 208 S.W. 840.