author: STONE, Judge.

text:
    STATE of Missouri ex rel. KOPPER KETTLE RESTAURANTS, INC., Relator-Appellant, v. CITY OF ST. ROBERT, Missouri, a municipal corporation et al., Respondents.
    No. 8687.
    Springfield Court of Appeals. Missouri.
    Jan. 17, 1968.

      Claude T. Wood, Richland, Scott R. Tray-lor, Springfield, for relator-appellant.
    J. W. Grossenheider, Lebanon, for respondents.

      . State ex rel. Brooks v. Crain, Mo. (banc), 263 S.W.2d 368, 369(1); State ex rel. Eggers v. Brown, 345 Mo. (banc) 430, 437, 134 S.W.2d 28, 31; State ex rel. Dilliner v. Cummins, 338 Mo. (banc) 609, 92 S.W.2d 605, 607(1); State ex rel. Consolidated School Dist. No. 1, Mississippi and New Madrid Counties v. Jones, 320 Mo. (banc) 353, 8 S.W.2d 66, 67(2); State ex rel. Hathaway v. State Board of Health, 103 Mo. 22, 26, 15 S.W. 322; State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396, 397(1); State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011, 1016(8); State ex rel. Wagner v. Fields, 218 Mo.App. 155, 263 S.W. 853, 856(1); State ex rel. Thomas Cusack Co. v. Shinnick, 208 Mo.App. 284, 232 S.W. 1053, 1054(1); State ex rel. Journal Printing Co. v. Dreyer, 183 Mo.App. 463, 479, 167 S.W. 1123, 1127; State ex rel. Huebler v. Board of Police Com’rs., 108 Mo.App. 98, 82 S.W. 960, 961(1).

   STONE, Judge.

In this proceeding instituted in the Circuit Court of Pulaski County, relator Kop-per Kettle Restaurants, Inc., sought a writ of mandamus to compel respondents, City of St. Robert, Missouri, its mayor, members of the board of aldermen, and city clerk, to issue a city license to relator, “upon payment of the proper fee,” for sale of liquor by the drink. Relator’s petition was filed on July 7, 1966; and, on the same date, an alternative writ issued. In due time, respondents filed their motion to quash the alternative writ and on the same date their return thereto. On November 28, 1966, the court entered an order sustaining respondents’ motion, quashing the alternative writ, and dismissing relator’s petition therefor. Following an unsuccessful “motion for new hearing or in the alternative to set aside judgment,” relator appeals.

The principal points in relator’s brief are (1) that “the petition for a writ of mandamus and, the alternative writ of mandamus contain facts sufficient to warrant mandamus, and by reason thereof the trial court erred in sustaining the motion to quash . . . ” and (2) that “Ordinance No. 61 of the City of St. Robert makes it mandatory for the Board of Aldermen to issue a license for the sale of liquor by the drink when all prerequisites have been complied with; and since the petition for the writ of mandamus alleged compliance with all prerequisites, the trial court erred in sustaining the motion to quash.” (All emphasis herein is ours.) In respondents' answering brief, the initial point is that “the trial court did not err in sustaining respondents’ motion to quash . . . because the writ does not allege in issuable form the facts necessary to show relator is entitled to the relief it seeks and the writ fails to state facts which if true would authorize its issuance and to which respondents can properly plead.” Hence the first issue, to which we now attend, is whether the propriety of the trial court’s sustention of respondents’ motion to quash the alternative writ should be determined upon the aver-ments of that writ, standing alone and unaided, or upon the averments in both the writ and the petition therefor.

As counsel for respondents points out, the alternative writ is the first or basic pleading, occupying a position corresponding to that of the petition in an ordinary civil action, with the return taking the place of and standing as the answer. Indeed, it has always been true in this jurisdiction [State ex rel. Hamilton v. Everett, 52 Mo. 89, 91], and still is [Rule 94.01; § 529.010], that it is the alternative writ, and not the petition for the writ, to which respondents are required to make their return. All of this logically points to the conclusion that the alternative writ should, in its recitals, be self-sufficient and able to stand alone when attacked by motion to quash. And some of the earlier cases held that the alternative writ itself must state “in an issuable form” [State ex rel. Hambleton v. Bolche, 89 Mo. 188, 191, 1 S.W. 234, 235] facts which show relator’s right to the relief sought. In other cases, it was said that the alternative writ “should set forth all the matters stated in the petition” [State ex rel. Hathaway v. State Board of Health, 103 Mo. 22, 26, 15 S.W. 322] or “should [contain], by way of recital, the allegations of the petition” [Bell v. County Court of Pike County, 61 Mo.App. 173, 176(2)]; but, in each instance, the court nevertheless considered the allegations of the petition for the writ.

In ruling a motion to quash, which in effect is under our present practice a motion to dismiss for failure to state a claim upon which relief can be granted [State ex rel. Lovell v. Tinsley, 241 Mo.App. 690, 694, 236 S.W.2d 24, 26(1)] and was under our former practice “a demurrer to the petition and writ” [State ex rel. St. Louis-San Francisco Ry. Co. v. Darby, 333 Mo. 1145, 64 S.W.2d 911(1)], our courts have, in most, if not all, of the later cases, looked to the petition for the alternative writ as well as the writ itself. Quite understandably, that has been done where respondent waives issuance of the alternative writ and the petition thus stands as and for the writ, and also where “the petition has been treated as the alternative writ.” State ex rel. Priest v. Gunn, Mo. (banc), 326 S.W.2d 314, 328. But the same practice has been followed in a broad variety of factual circumstances, where the motion to quash has charged that the petition for the writ did not state facts sufficient to constitute a cause of action against respondent.

In the instant case, one of the principal grounds of respondents’ motion to quash was “that the petition for the writ filed herein upon which the writ was imprudently issued states only conclusions of law and fails to state facts sufficient to authorize the issuance of a writ of mandamus.” With the pleadings in this state, we eschew the unnecessary and unrewarding task of undertaking to rationalize or reconcile, if indeed that be possible, the divers holdings on the question under discussion. Suffice it to say that the cases cited marginally in note 7 afford ample authority for our consideration of “all facts well pleaded” [State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396, 397(2)] in both the petition for the alternative writ and the writ itself. State ex rel. and to Use of Markwell v. Colt, Mo.App., 199 S.W.2d 412, 414(1). Recognizing that, as respondents emphasize, their motion to quash did not admit mere conclusions of law stated in the petition or the writ [St. Louis-San Francisco Ry. Co., supra, 333 Mo. at 1148, 64 S.W.2d at 911(1); State ex rel. Lamkin v. Hackmann, 275 Mo. (banc) 47, 204 S.W. 513, 514(1)], we also bear in mind that relator was required to plead only ultimate facts and not evidence. State ex rel. Consolidated School Dist. No. 1, Mississippi and New Madrid Counties v. Jones, 320 Mo. (banc) 353, 358, 8 S.W.2d 66, 67; Sibert v. Litchfield & M. Ry. Co., Mo., 159 S.W.2d 612, 614(1); City of Lebanon v. Holman, Mo.App., 402 S.W.2d 832, 835(5).

Before leaving the question under discussion, we add the cautionary comment that the prudent practitioner undoubtedly would be well advised in mandamus proceedings to take care that the averments essential to relator’s, cause of action are included in the alternative writ which, from a practical standpoint, often may be appropriately accomplished by referring in the writ to the petition therefor, attaching a copy of the petition to the writ, and making the petition a part thereof. Rules 41.02 and 55.14; § 509.130; Crouch v. Tourtelot, Mo. (banc), 350 S.W.2d 799, 801(1).

From relator’s petition, the alternative writ, and Ordinance No. 61 of respondent City of St. Robert, which was attached to and made a part of respondents’ motion to quash and has been treated by all parties as properly for consideration on this appeal, we gather the following. In Section 1 of Ordinance No. 61, enacted on December 18, 1962, the board of aldermen of respondent city declared it “necessary in order to maintain the peace, welfare and good government of the city, to limit the number of licenses for the sale of liquor by the drink” and ordained (a) in Section 2 that no by-the-drink license “shall be granted in excess of ten such licenses except each increase in population to the extent of 250 persons over the 1960 population, as determined by the U.S. Government census, shall automatically permit one additional license to be issued as hereinafter provided” and (b) in Section 3 that any applicant for a by-the-drink license "shall show to the satisfaction of the city board [1] that said person has the place of operation and [2] that said place of operation is ready to be opened for business and [3] the applicant must be the owner of real estate located in the City of St. Robert.”

Relator, which “has leased restaurant and cocktail lounge facilities” in the Ramada Inn at St. Robert, averred that “the population of the city has increased by more than two hundred fifty (250) since the last federal decennial census and by reason thereof, under the terms of the ordinance, at least eleven (11) licenses for sale of liquor by the drink may be issued and outstanding at one time”; that, having met “all lawful conditions precedent to the issuance” of a by-the-drink license, relator had demanded issuance of such license to it at a meeting of the board of aldermen of respondent city on May 16, 1966; that, however, respondents had refused to issue such license on the ground “that ten (10) licenses for the sale of liquor by the drink in St. Robert” were then outstanding; and that, in the stated circumstances, issuance of such license to respondent was “not a discretionary matter” but “merely a ministerial action.”

In its second principal point, relator asserts that “Ordinance No. 61 makes it mandatory for the Board of Aldermen to issue a license for the sale of liquor by the drink when all prerequisites have been complied with; and since the petition . . . alleged compliance with all prerequisites, the trial court erred in sustaining the motion to quash.” Countering, respondents argue that the ordinance “shows on its face that the act sought to be compelled is a discretionary act and not a ministerial duty so madamus will not lie”; that, since the ordinance provides that by-the-drink licenses “shall be issued to persons ... no corporation or firm would be entitled to receive a license thereunder”; and that “neither the petition for the writ nor the writ alleges [relator] has been injuriously affected by the alleged refusal to issue a license so • mandamus will not lie.” As will become apparent in the ensuing discussion, we neither approve relator’s quoted assertion in its entirety nor accept respondents’ countering arguments.

Since Rule 55.18 [§ 509.170] provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred,” the allegation in relator’s petition that “all lawful conditions precedent to the issuance of said liquor license, as is required by the city ordinance of St. Robert, have been met by it” was proper and adequate. Although, as respondents point out, neither the alternative writ nor the petition therefor specifically affirmed in those terms that relator “has been injuriously affected by the alleged refusal to issue a license,” the petition did asseverate that relator “has leased restaurant and cocktail lounge facilities” in the Ramada Inn at St. Robert and “that it is imperative and indispensable to the business and economy of the relator that the said liquor license be issued.” In State ex rel. Johnson v. Sevier, 339 Mo. (banc) 483, 487-488, 98 S.W.2d 677, 679(6), the only case cited by instant respondents in this connection, the requirement was stated as being that “ '[i]n cases where private rights are sought to be enforced it must be made to appear by the petition or alternative writ that the petitioner has been injuriously affected by respondent’s default or breach of duty, or that he will be injuriously affected if that duty is not performed.’ ” In our judgment, that was sufficiently “made to appear by the petition” here.

We turn to respondents’ contention that the alternative writ was properly quashed anyway because Ordinance No. 61 provided for issuance of by-the-drink licenses to “persons” and, therefore, “no corporation or firm would be entitled to receive a license” thereunder. “Person” is not defined in the ordinance, but the Liquor Control Act contains the all-inclusive definition that “ ‘person’ as used in this chapter shall mean and include any individual, association, joint stock company, syndicate, copart-nership, corporation, receiver, trustee,'cón-""servator, or other officer appointecf by any state or federal court.” Section 311.030. The argument of respondents’ counsel is that, since the term “person” was not defined in Ordinance No. 61, “the intent of the board . . . must therefore have been to limit the applicants for licenses . . . to individuals . . ..” But such power as respondent city has with respect to regulation and control of the sale of intoxicating liquor [see § 311.220(2)] is derived from, and is subject to, the Liquor Control Act [State ex rel. Hewlett v. Womach, 355 Mo. 486, 491, 196 S.W.2d 809, 812(3)]; and, to be valid, any municipal ordinance must be in harmony with the statutory law upon the same subject. In the absence of evidence from which the contrary reasonably may be found or inferred, it is presumed that municipal authorities acted legally and were influenced by proper motives. Silvester v. Mayor and Council of Borough of Princeton, 104 N.J.L. 18, 139 A. 517, 518; 17 McQuillin, Municipal Corporations (3rd Ed.), § 51.69, p. 610; 55 C.J.S. Mandamus § 325a, p. 558. So, we should not and do not ascribe to respondents (even though their counsel is willing so to do) a deliberate intent that the word “person” as used in Ordinance No. 61 should be construed in a manner patently inharmonious with the definition of that term in the Liquor Control Act. The order under review cannot be sustained on any such theory.

In arguing that Ordinance No. 61 “shows on its face that the act sought to be compelled is a discretionary act . so mandamus will not lie,” respondents point to the provision in Section 3 that an applicant “shall show to the satisfaction of the city board [1] that said person has the place of operation and [2] that said place of operation is ready to be opened for business and [3] the applicant must be the owner of •real estate located in the City of St. Robert.” However, nothing in the writ or the petition suggested that respondents’ alleged refusal to issue a license to relator was predicated on relator’s failure to “show to the satisfaction of the board” any of the above-quoted requirements in Section 3 of the ordinance. On the contrary, relator averred that “all lawful conditions precedent to the issuance of said liquor license, as is required by the city ordinance of St. Robert, have been met by it” and that respondents have refused to issue a by-the-drink license to relator “on the alleged grounds (sic) that ten (10) licenses for the sale of liquor by the drink in St. Robert have been issued and are now outstanding.” As we have noted, respondents’ motion to quash, in effect a motion to dismiss for failure to state a claim upon which relief could be granted [Lovell, supra, 241 Mo.App. at 694, 236 S.W.2d at 26(1)], admitted all facts well pleaded in the alternative writ and the petition therefor [St. Louis-San Francisco Ry. Co., supra, 333 Mo. at 1147-1148, 64 S.W.2d at 911(1); Foster, supra, 246 S.W.2d at 397(2)], and our present inquiry is simply as to the sufficiency of the writ and the petition to withstand respondents’ attack by motion to quash.

With the requirements in Section 3 of Ordinance No. 61 thus put aside, there yet remains the limitation imposed in Section 2, i. e., that no by-the-drink license “shall be granted in excess of ten such licenses except each increase in population to the extent of 250 persons over the 1960 population, as determined by the U.S. Government census, shall automatically permit one additional license to be issued as hereinafter provided.” The Liquor Control Act does not preclusively regulate but, on the contrary, specifically authorizes municipalities to enact regulatory ordinances [§ 311.220(2)] which are in harmony with the statutory law and are not unreasonable. There is not, and could not well be, any contention that the board of aldermen of St. Robert, a city of the fourth class with a population of 860 in 1960, as shown by the United States census of which we take judicial knowledge [Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 246(4); Missouri Public Service Co. v. Barton County Elec. Coop., Mo.App., 353 S.W.2d 818, 819(1)], acted unreasonably in limiting the number of by-the-drink licenses to ten; and, being in no wise inharmonious with the Liquor Control Act, that undoubtedly was a valid regulatory measure. State ex rel. Hewlett v. Womach, 355 Mo. (banc) 486, 196 S.W.2d 809. But relator averred in its petition that the population of St. Robert had increased “by more than” 250 persons, and the verity of that allegation was admitted by respondents’ motion to quash.

So in determining the sufficiency of the alternative writ and the petition therefor, we must honor the pleaded declarations that relator had met “all lawful conditions precedent to the issuance of said liquor license, as is required by the city ordinance of St. Robert,” that the population of St. Robert had increased by “more than” 250 persons since the 1960 census, but that respondents had refused to issue a license on the ground “that ten (10) licenses for the sale of liquor by the drink in St. Robert have been issued and are now outstanding.” Since Section 2 of Ordinance No. 61 provides that the increase in population alleged in relator’s petition "shall automatically permit one additional license to be issued,” refusal of a license to relator could not be justified on the sole and unelaborated ground that ten by-the-drink licenses were outstanding. Hence, we are impelled to the conclusion that the writ and the petition therefor did state a cause of action and that, therefore, the order sustaining respondents’ motion to quash and dismissing relator’s petition was improvidently entered and must be set aside.

The scope and import of our holding should not be misconstrued. When, upon remand, an order overruling the motion to quash is entered, respondents’ position will be reflected by their return, in which they deny “each and every” allegation in relator’s petition excepting only those as to the corporate status of respondent city and the official positions held by the individual respondents and affirmatively aver,. inter alia, (a) that “no evidence of a population increase in the City of St. Robert . . . was or has ever been presented to the board of aldermen ... or any official of said city,” (b) that “a number of applications” for a by-the-drink license had been filed “ahead of relator’s application” and are awaiting determination, (c) that, when its application was filed on or about May 11, 1966, relator owned no real estate in St. Robert, as was required by Section 3 of Ordinance No. 61, although “in a ruse to evade said objection” relator thereafter “purportedly acquired a deed to a strip of land approximately 10 feet in width,” and (d) that, when its petition was filed herein, relator had no application on file with the city clerk, its original application having been theretofore withdrawn. It then will be incumbent upon relator to place the case at issue [Rule 94.02; § 529.020; State ex rel. Duggan v. Kirkwood, 356 Mo. (banc) 842, 845, 204 S.W.2d 307, 309; State ex rel. Stueve v. Reynolds, 266 Mo. 12, 178 S.W. 468]; and, if relevant and material issues of fact are joined, they will be for trial and determination by the court, with the burden resting upon relator to establish the truth of its contentions by the quantum of evidence demanded by the law in a case of this nature. See State ex rel. Christian v. Lawry, Mo.App., 405 S.W.2d 729, 731(6, 7), and cases there cited.

In the interest of further minimizing the possibility of error upon remand, it may not be amiss for us to add these comments relative to the rights and duties of the respective parties. The provision in Section 2 of Ordinance No. 61 that “each increase in population to the extent of 250 persons over the 1960 population . . shall automatically permit one additional license to be issued as hereinafter provided” means that each such increase in population “shall automatically” allow or authorize the issuance of an additional license but is not fairly susceptible of relator’s interpretation that each such increase “shall automatically” require the issuance of such license. “The words ‘require’ and ‘permit’ express different ideas; in the ordinary use of the English language the one does not include the other.” In re Boyd, 2 Cir., 213 F. 774, 775-776, appeal dismissed 241 U.S. 689, 36 S.Ct. 549, 60 L.Ed. 1237. See definitions of “permit” and “require” in Webster’s Third New International Dictionary, pp. 1683, 1929.

Of course, neither a county [State ex rel. Floyd v. Philpot, 364 Mo. 735, 266 S.W.2d 704] nor a city [State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 409-410, 207 S.W.2d 49, 54(10)] is empowered to review or nullify the action of the state supervisor of liquor control in granting a state license under the Liquor Control Law. Chapter 311. But, as we have noted, cities are specifically authorized to enapt regulatory ordinances [§ 311.220(2)] which are in harmony with the statutory law and are not unreasonable [see cases cited marginally in note 9]-, and numerous cases exemplify the truth that municipal authorities are not stripped of all discretion in passing upon applications for city liquor licenses.

On the other hand, in some circumstances issuance of such licenses properly may be compelled by mandamus, as is illustrated by cases cited in instant relator’s brief, namely, Collins, supra, 240 Mo.App. at 410, 207 S.W.2d at 54, where “[t]he pleadings and the evidence” showed that relator was “in every way qualified” to operate a tavern, “the only question involved was one of law,” and the municipal authorities were “in error as to the law”; Floyd, supra, 364 Mo. at 744-745, 266 S.W.2d at 710-711, where the county court had no express or implied authority other than to determine the license fee within statutory limits and upon “the admitted facts” had no discretion to refuse the license; and State ex rel. Wirt v. Cass County Court, 137 Mo.App. 698, 119 S.W. 1010, where it was “conceded by the pleadings that the relator [was] a proper party to receive a license, and that every requirement [had]- been met” and the county court should issue the license unless prevented from doing so by a certain local option election [137 Mo.App. at 704, 119 S.W. at 1011], and it was held that said election was invalid and thus “the only reason for refusal” was insufficient as a matter of law. 137 Mo.App. at 711, 119 S.W. at 1014. And municipal authorities would be well-advised to bear in mind that, although the writ of mandamus may not be used to control the exercise of discretion in good faith [State ex rel. Kugler v. Tillatson, Mo. (banc), 312 S.W.2d 753, 757(9)], it will lie where a supposed discretion has been exercised arbitrarily, capriciously or in bad faith, in those circumstances it being regarded that the field of discretion was abandoned. State ex rel. Shartel v. Humphreys, 338 Mo. 1091, 93 S.W.2d 924, 926(2); Mangieracina v. Haney, Mo.App., 141 S.W.2d 89, 92(7); State ex rel. Wagener v. Cook, Mo.App., 187 S.W. 1122, 1123.

The order of the circuit court entered on November 28, 1966, sustaining respondents’ motion to quash the alternative writ, quashing that writ, and dismissing relator’s petition is set aside and for naught held, and the cause is remanded (a) with directions to enter an order setting aside the aforesaid order of November 28, 1966, and overruling respondents’ motion to quash, and (b) for further proceedings thereafter not inconsistent with this opinion.

HOGAN, P. J., and TITUS, J., concur.

      . Brown, supra, 345 Mo. at 437, 134 S.W. at 31; State Board of Health, supra, 103 Mo. at 26, 15 S.W. at 322; Knight, supra, 26 S.W.2d at 1016(8) ; Fields, supra, 263 S.W. at 856(1); Board of Police Com’rs., supra, 82 S.W. at 961(1).

      . Cummins, supra, 92 S.W.2d at 607 (1) Jones, supra, 8 S.W.2d at 67 (2); Fields, supra, 263 S.W. at 856(1).

      . All statutory references are to BSMo 1959, V.A.M.S. and all references to rules are to the Buies of Civil Procedure, Y.A. M.B.

      . State ex rel. Hambleton v. Bolche, 89 Mo. 188, 1 S.W. 234, 235(1); State ex rel. Glenn v. Smith, 129 Mo.App. 49, 58, 107 S.W. 1051, 1054; Shinnick, supra, 232 S.W. at 1054(1). See Knight, supra, 26 S.W.2d at 1018(19); Board of Police Com’rs., supra, 82 S.W. at 961(1).

      . State ex rel. Rumbold v. Gordon, 238 Mo. 168, 174, 142 S.W. 315, 316; State ex rel. School Dist. of Memphis v. Gordon, 223 Mo. 1, 10, 122 S.W. 1008, 1009 (1); State ex rel. Coffman v. Crain, Mo.App., 308 S.W.2d 451, 453(2); State ex rel. Black v. Renner, Mo.App., 138 S.W.2d 756, 757(1) ; State ex rel. Miller v. Smith, Mo.App., 120 S.W.2d 184(1); State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011, 1013(1).

      . State ex rel. St. Louis-San Francisco Ry. Co. v. Darby, 333 Mo. 1145, 64 S.W.2d 911(1); State ex rel. May Department Stores Co. v. Haid, 327 Mo. (banc) 567, 38 S.W.2d 44, 46(1); State ex rel. Davis v. Newton, Mo.App., 172 S.W.2d 872(1); State ex rel. La Rue v. Hitchcock, 171 Mo.App. 109, 114, 153 S.W. 546, 548(1).

      . § 71.010; State ex rel. Hewlett v. Womach, 356 Mo. 486, 491, 196 S.W.2d 809, 812(1); John Bardenheier Wine & Liquor Co. v. City of St. Louis, 345 Mo. 637, 135 S.W.2d 345(2); State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 207 S.W.2d 49, 53 (8); Fischbach Brewing Co. v. City of St. Louis, 231 Mo.App. 793, 95 S.W.2d 335 (2); State ex rel. Smith v. Berryman, 142 Mo.App. 373, 127 S.W. 129, 133(7, 8).

      . Nickols v. North Kansas City, 358 Mo. 402, 214 S.W.2d 710(1, 4, 7); City of Maryville v. Wood, 358 Mo. 584, 216 S.W.2d 75; Passler v. Johnson, Mo., 304 S.W.2d 903, 907(1, 2). See City of Springfield v. Stevens, 358 Mo. (banc) 699, 216 S.W.2d 450, 454(7), 459(24); Vest v. Kansas City, 355 Mo. 1, 194 S.W.2d 38, 39 (2-4); State ex rel. Kemerling v. Peterson, 240 Mo.App. 700, 214 S.W.2d 739, 741(1-4); City of Flat River v. Mackley, Mo.App., 212 S.W.2d 462, 466, 467(4), 468(8).

      . Mangieracina v. Haney, Mo.App., 141 S.W.2d 89, 91-92(5, 6); State ex rel. Bismark Grill v. Keirnan, 238 Mo.App. 507, 181 S.W.2d 798, 802(1), 803(4); State ex rel. Missouri Baptist Hospital v. Nangle, Mo.App., 230 S.W.2d 128, 131 (7); State ex rel. Bruno v. Johnson, Mo.App., 270 S.W.2d 99, 103.

      . State ex rel. Kugler v. Tillatson, Mo. (banc), 312 S.W.2d 753, 758(9); State ex rel. Shartel v. Humphreys, 338 Mo. 1091, 93 S.W.2d 924, 926(2) ; State ex rel. Reis v. Nangle, Mo.App., 349 S.W.2d 508, 512 (4); Mangieracina, supra, 141 S.W.2d at 92(7); State ex rel. Hultz v. Bowman, Mo.App., 294 S.W. 107, 109 (3); State ex rel. Hendricks v. Newton, Mo.App., 206 S.W. 392, 393; State ex rel. Wagener v. Cook, Mo.App., 187 S.W. 1122, 1123(2) ; Journal Printing Co., supra, 183 Mo.App. at 481, 167 S.W. at 1127-1128.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    BARSH TRUCK LINE, INC., a Corporation, Plaintiff-Appellant, v. JERRY LIPPS, INC., a Corporation, Defendant-Respondent.
    No. 32765.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Oliver, Oliver & Jones, A. J. Seier, Cape Girardeau, for plaintiff-appellant.
    Limbaugh, Limbaugh & Russell, Cape Girardeau, for defendant-respondent.
   WOLFE, Judge.

This is an action whereby plaintiff sought to recover indemnity from four defendants. The trial court sustained a motion to dismiss the plaintiff’s petition and plaintiff has appealed.

It is conceded at this point that the only defendant against which the plaintiff seeks to state a case is Jerry Lipps, Inc. The plaintiff, Barsh Truck Line, alleged that it leased a tractor-trailer from Jerry Lipps, Inc. for the purpose of transporting canned citrus products from Lake Wales, Florida, to Paragould, Arkansas. The petition alleged that the truck was operated by Louis Lavigne, an employee of Jerry Lipps, Inc., and that the cargo was lost in a single vehicle accident caused by the negligence of the driver. Barsh Truck Line, plaintiff-lessee, was compelled to pay Donald Duck Juices Company, the shipper, the sum of $3,874.87 for the loss and damage to the cargo. By this action the plaintiff Barsh Truck Line seeks indemnity from Jerry Lipps, Inc. by reason of the terms of the lease entered into. The lease was attached to and made a part of the petition.

A motion to dismiss the petition was filed setting forth as its grounds that the petition and the lease show upon their face that the defendant is not liable. The ■ court sustained the motion to dismiss and as stated, it is from the dismissal the plaintiff prosecutes this appeal.

The facts pleaded and admitted are that the lease attached to the petition was executed by the Barsh Truck Line, plaintiff, as lessee and Jerry Lipps, Inc., defendant, as lessor. It provided that Jerry Lipps, Inc. would lease to Barsh Truck Line, Inc. a tractor-trailer for the purpose of transporting canned citrus products from Lake Wales, Florida, on May S, 1964, for delivery at Paragould, Arkansas, not later than May 14, 1964. It contained the following relevant provisions:

“Lessor hereby agrees to maintain his equipment in a good and efficient manner and observe all safety rules and other requirements of the Interstate Commerce Commission and all other regulatory bodies having jurisdiction.
“Lessor hereby agrees that he will personally be responsible for any damage to his equipment, regardless of cost, and further agrees to carry any fire, theft or collision insurance as he deems necessary on his own equipment and to hold harmless the Lessee for any damage to his equipment regardless of cost or nature.
“It is understood by the parties that the Lessee shall exercise absolute control and responsibility of the vehicles subject hereto, and shall exercise due care in the use of said vehicles and shall at the expiration of the term of this lease, yield said vehicles to the Lessor without further notice. This lease will terminate when Lessor has completed delivery of load covered by this lease. It is understood that all Barsh Truck Line identification will be removed at that time.
“If for any reason whatsoever, Lessor is unable to complete delivery of his load, and so advises Lessee, this lease shall terminate at that point and the terms of this lease as regards payment, shall become null and void. Responsibility for cargo to the Lessee shall remain with the Lessor until accepted by the Lessee.
“Lessor will be held responsible to Lessee for all fines, traffic and safety equipment violations. Lessor further agrees that he will personally be responsible for any shortage, loss or damage (of property being transported) due to negligence on the part of Lessor.”

The lease was signed by Louis Lavigne as agent for Jerry Lipps, Inc. Lavigne drove the tractor-trailer and Jerry Lipps, Inc. was his general employer.

The appellant states as its sole contention on appeal as follows:

“The Court Erred in Dismissing Plaintiff’s Amended Petition Because It Cannot Be Said That the Equipment Trip Lease (Exhibit A) Itself Shows Conclusively That the Driver of the Equipment at the Time of Loss Was the Agent, Servant and Employee of Plaintiff Thereby Barring Plaintiff From Recovery.”

The point raised properly singles out the issue that is determinative of this matter, that is, who was the employer of Lavigne at the time the cargo was destroyed by his negligence. Departing somewhat from this determinative issue it is argued by the appellant that it has a right to indemnification. This right would exist against an agent under contract to the plaintiff where the plaintiff suffered a loss occasioned by its own agent’s negligence. State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481; Brown v. Park Transportation Company, Mo.App., 382 S.W.2d 467. We are of the opinion that the operator of the vehicle in question was the employee of the plaintiff-lessee and not the employee of the lessor. But no claim for indemnification is made against the driver. The claim is against his general employer. After the citation of many supporting authorities this court stated in Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628, l.c. 633:

“From the foregoing cases we find the law to be that the relation of employer and employee exists as between a special employer to whom an employee is loaned and said employee whenever the following facts concur: (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.”

There can be no doubt about provision (a) of the above paragraph being fulfilled for the driver signed the lease for the lessor. As for (b) he entered into the work, and as to (c) the lease provided that the lessee shall exercise “absolute control and responsibility of the vehicle.” The right of control is the determining factor when the other factors are met and the right of control was clearly in the lessee under the terms of the lease. Gardner v. Simmons, Mo., 370 S.W.2d 359. The quotation set out above from the case of Ellegood v. Brashear Freight Lines was cited with approval by the Missouri Supreme Court in Wright v. Habco, Inc., 419 S.W.2d 34, l.c. 36.

The appellant also relies on that portion of the lease which states that the respondent-lessor, Jerry Lipps, Inc. is responsible for any shortage, loss or damage of property being transported due to negligence on the part of the lessor. Since the lease had delegated all responsibility to the lessee except for the maintenance of the equipment the negligence of the lessor could only occur in hiatters for which it held itself responsible such as the maintenance of the equipment. The negligence of the lessee’s employee as Lavigne was could not be imputed to the lessor who was not at that time his master. We do not find this provision relating to lessor’s negligence inconsistent with the absolute control given to the lessee.

For the reasons stated above we conclude that the point raised is without merit and we affirm the judgment of the trial court.

ANDERSON and RUDDY, JJ., concur.


author: DOERNER, Commissioner.

text:
    Adolph G. SCHUMACHER, Executor of the Estate of Anna Bock, Deceased, Plaintiff-Appellant, v. The SHEAHAN INVESTMENT COMPANY, a Corporation, and Andrew E. Sheahan, William C. Barnett, Defendants-Respondents. William C. BARNETT, Third Party Plaintiff-Respondent, v. TITLE INSURANCE CORPORATION OF ST. LOUIS, a Corporation, Third Party Defendant-Respondent.
    No. 32915.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Adolph G. Schumacher, Clayton, for plaintiff-appellant.
    Kerth, Thies & Schreiber, Clayton, for defendants-respondents.
    William C. Barnett, St. Louis, Alvin L. Mayer, Clayton, for third party plaintiff-respondent.
    Ziercher, Tzinberg, Human & Michen-felder, George J. Bude, Clayton, for third party defendant-respondent.
   DOERNER, Commissioner.

This appeal was taken to the Supreme Court, which held that it was without jurisdiction and transferred the cause to this court. Bock v. Sheahan Investment Co. et al., Mo., 412 S.W.2d 393. After such transfer the death of plaintiff Anna Bock was suggested and the Executor of her estate substituted as appellant. However, in the interests of clarity we will refer to the parties as they stood in the trial court.

The amended petition filed by plaintiff, upon which the case was tried, contained three counts. In Count I plaintiff sought an accounting from defendants Sheahan Investment Company, Sheahan, and Barnett of the proceeds of a $20,000 loan made to her by defendant Sheahan Investment and the cancellation of the deed of trust given as security for such loan. In Count II plaintiff alleged that at the time the loan secured by the deed of trust was made the same defendants were aware that she would be financially unable to pay it when it came due and that a foreclosure would result in the future, for which alleged wrong she sought actual damages of $10,000 and punitive damages of $25,000 from them. And in Count III plaintiff pleaded that defendant Barnett had induced her to give him her will, and that he had failed and refused to return it on demand. The prayer was for a judgment ordering him to do so forthwith. The transcript does not show that any order for a separate trial was requested or made. All that appears is that a trial on Counts I and III was held in the equity division of the St. Louis County Circuit Court and a judgment and decree rendered on those counts which was adverse to the plaintiff. No designation was made by the court that the judgment should be deemed a final judgment for purposes of appeal within the meaning of § 512.020, RSMo 1959, V.A.M.S.

We are confronted with an unusual situation, which the Supreme Court noted but did not reach because its first concern was with its lack of jurisdiction. Despite the fact that she took the appeal plaintiff urges that the trial court erred in attempting to enter a final judgment on Counts I and III because Count II remains undispos-ed of. Of course, if the judgment on Counts I and III is not a final judgment for purposes of appeal within the meaning of § 512.020 then plaintiff’s appeal is premature and should be dismissed. Meyer Jewelry Co. v. General Insurance Co. of America, Mo., 422 S.W.2d 617, November 13, 1967; Bays v. Lueth, Mo., 323 S.W.2d 236; Ramatowski v. Ramatowski, Mo.App., 414 S.W.2d 827. On the other hand, defendant Barnett has filed a motion to dismiss the appeal on the ground that plaintiff’s brief fails in numerous respects to comply with the requirements of Civil Rule 83.05, V.A.M.R. We consider first the finality of the judgment, a question which we would be required to determine as a matter affecting our jurisdiction even if not raised by the parties. Dotson v. E. W. Bacharach, Inc., Mo., 325 S.W.2d 737; Deeds v. Foster, Mo., 235 S.W.2d 262.

Civil Rule 82.06, V.A.M.R., provides in part:

“ * * * When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims áre determined. ⅜ * * ”

As we construe that portion of the rule, when a separate trial is had in a non-jury case the decision of whether the resulting judgment is or is not final for purposes of appeal turns on the nature of the tried and untried claims. If those tried arose out of the same transactions, occurrences or subject matter as those not tried the judgment is not an appealable, final judgment unless specifically so designated by the court. But if the claims- tried are unrelated to those not tried the judgment is deemed a final one for the purpose of appeal unless otherwise designated. Meyer Jewelry Co. v. General Insurance Co. of America, supra; Ramatowski v. Ramatowski, supra.

In the instant case plaintiff’s claims against defendants Sheahan Investment, Sheahan, and Barnett were separated into two counts, the first in equity and the second at law. In Count I she sought an accounting of the proceeds of the loan arranged for by defendant Barnett and made by defendants Sheahan Investment and Sheahan, and the cancellation of the deed of trust given by her as security for the loan. In Count II she sought actual and punitive damages for an alleged wrong by reason of the making of the loan and deed of trust. Thus the parties were the same in both counts, and the claims made against them arose out of “the same transactions, occurrences or subject matter,” the loan made to plaintiff and the security therefor executed by her. The judgment on Counts I and III not having been designated final for purpose of appeal and there having been no disposition of Count II we are constrained to hold that the judgment attempted to be appealed from is not final. Meyer Jewelry Co. v. General Insurance Co. of America, supra; Bays v. Lueth, supra; Ramatowski v. Ramatowski, supra.

The appeal, being premature, is therefore dismissed. *

PER CURIAM:

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

Accordingly, appeal dismissed.

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


text:
    MOHAWK REAL ESTATE SALES, INC., a Corporation, Plaintiff-Respondent, v. Samuel E. CRECELIUS and Emille E. Crecellus, Defendants-Appellants.
    No. 32832.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.

      Leyhe, Jacobsmeyer & Meyer, R. W. Ja-cobsmeyer, Clayton, for defendants-appellants.
    J. L. London, Carroll C. Gilpin, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

In this action for damages for breach of a written contract the court, sitting without a jury, rendered a judgment in favor of plaintiff and against defendants for $14,952.00, including interest, and defendants appealed.

As its name indicates, plaintiff Mohawk Real Estate Sales, Inc., is a corporation engaged in the sale of real property. Maroon Brothers, Inc., is a building and development corporation. The evidence indicates the existence of some relationship between the two, but the precise nature of that relationship — whether one owned the stock of the other, or whether they merely had common stockholders — was not disclosed. All that was shown was that at the time the events occurred which gave rise to this suit Frank J. Maroon was vice-president of Mohawk Real Estate and president of Maroon Brothers. Defendants, who are husband and wife, were the owners of a tract of land of approximately 20 acres, located on Buckley Road in St. Louis County. On February 2, 1957 defendants entered into a sales contract whereby they agreed to sell, and Maroon Brothers to buy, all of their property except a parcel fronting 200 feet on Buckley Road with a depth of 230 feet. The contract provided that the sales price was to be $4200 per acre and that the tract was to be surveyed at the purchaser’s expense to determine the exact amount of acreage.

Plaintiff’s evidence was that subsequent to the execution of the sales contract on February 2, 1957, Frank J. Maroon (on behalf of which company was not stated) negotiated with the defendants concerning a part, amounting to 0.678 of an acre, of the 200 by 230 feet parcel which defendants had excepted from the sales contract. The import of such evidence was that both parties decided that it would be to their mutual interest if plaintiff developed the 0.678 parcel at the same time that plaintiff developed the approximately 20 acres it had contracted to purchase; and that a contract of the nature of that subsequently executed was agreed upon. Defendant’s evidence was that no such negotiations or discussions occurred and that the first they heard of the subsequently executed agreement concerning the 0.678 acre was when they met for the closing of the sale of the 20 acres.

The sales contract provided that the sale of the 20 acres was to be closed on May 2, 1957, provided that certain contingencies not here material were satisfied. It is undisputed that a meeting was held on that day at the office of the Jolly Real Estate Company, as provided in the sales contract. There were present Frank J. Maroon; his father, Charles Maroon, who was then president of Mohawk Real Estate and who died prior to the trial; both defendants; and Roland Jolly, defendants’ real estate agent. There is no dispute about the fact that the sales contract was closed and that defendants conveyed their approximately 20 acres, except the 200 by 230 feet parcel, to Mohawk Real Estate, although their sales contract was with Maroon Brothers. There is, however, a sharp dispute in the evidence regarding the circumstances surrounding the execution of the so-called option agreement which is involved in the present suit. Defendants testified, as stated, that they had had no negotiation or discussion concerning an option agreement prior to the meeting on May 2, 1957; that plaintiff refused to close the sale of the 20 acre tract unless defendants executed the option agreement; that they repeatedly refused to execute the option agreement, and after 3 or 4 hours of argument finally signed only because Mrs. Crecelius was ill and crying and they wanted to get away; that Mr. Crecelius had eye trouble and neither read nor understood the option agreement; and that it was not fully read to them.

Frank J. Maroon and Roland Jolly testified, oil the other hand, that there was no argument about the option agreement or refusal on the part of defendants to sign it; that the instrument in its entirety was read to defendants; that they readily signed the agreement and acknowledged before Jolly, who was a notary, that they had executed it as their free act and deed; and that the closing of the sales contract and the execution of the option agreement all occurred in a much shorter period of time than that stated by defendants.

The document titled “Option Agreement,” which plaintiff’s evidence showed was drawn by its lawyer, is too lengthy to set forth in full, and only those portions will be quoted which we deem material. The defendants are named therein as parties of the first part, and Mohawk Real Estate Sales, Inc., as party of the second part. In the first paragraph of the preamble it is recited that the defendants are the owners of the entire 20 acre tract, which is described by metes and bounds. Despite the fact that the sales contract was between Maroon Brothers and defendants, in the second paragraph of the preamble it is stated, “Party of the second part (Mohawk Real Estate), has contracted for the purchase, from parties of the first part, for most of the aforesaid described tract, * * The recitation continues that two portions had been excepted from such contract of sale, “* * * one of said portions said parties of the First Part desire to retain, and out of the other portion, an option is hereby given to said party of the second part to purchase upon the following terms and conditions, the following described tract of 0.678 acres, * * There then follows the description by metes and bounds of the 0.678 acre. The body of the instrument is divided into numbered paragraphs. In paragraph 1 it is stated that the defendant thereby grants an option to plaintiff “* * * as to the above described parcel * * * ” and that plaintiff accepts said option. Paragraphs 2, 3, 4 and 5 read as follows:

“2. Parties of the first part reserve the right within three years from the date hereof, to decide to retain the aforesaid 0.678 acre tract, then only for the purpose of conveying all or portions thereof to their children or grandchildren, with the intention that said children or grandchildren shall occupy the same for their individual uses, and if they so decide to retain the same, then they shall pay party of the second part the following sums, if exercised, to wit:
One year after date, the sum of $10,-000.00
Two years after date, the sum of $10,400.00
Three years after date, the sum of $10,800.00
“3. In the event said parties of the first part decide not to exercise their right to retain said 0.678 acre tract, then party of the second part agrees to purchase same on the following basis, and on the dates herein set out, to wit:
One year after date, the sum of $2,-900.00
Two years after date, the sum of $3,-000.00
Three years after date, the sum of $3,100.00
“4. Party of the second part, is hereby given the right and privilege, upon and after acquiring the whole tract as set out hereto-fore, to engineer and improve said 0.678 acre tract to conform with the contour of the whole tract and it is to be given easements over said 0.678 acre tract for the purpose of installing sewer lines as well as for other utility purposes.
“5. In the event said parties of the first part, during the period of three years from date hereof, fail to exercise their right to retain said 0.678 tract, then they shall sell the same to the party of the second part upon the terms as set out herein before.”

It is clear from all of the evidence that shortly before the expiration of the three year period mentioned in the option agreement defendants requested plaintiff to grant an extension of that agreement, that defendants consented to do so, and that the parties executed what is titled, “Extension and Amendment to ‘Option Agreement’.” By that document the parties agreed to extend the option agreement for a period of one year, the same terms and conditions to apply, except that defendants were to pay plaintiff $11,200 if defendants exercised their right to retain the 0.678 acre tract, and if defendants did not do so then plaintiff was to pay defendants $3200 for such tract. Before the expiration of the one-year period defendants consulted counsel regarding the option agreement, and on April 28, 1961, their lawyer,’ Mr. R. W. Ja-cobsmeyer, wrote both Maroon Brothers and Mohawk Real Estate a letter in which he stated that defendants desired to retain the 0.678 acre tract mentioned in the document dated May 2, 1957; that due to the ambiguities and uncertainties contained in the option agreement and the extension agreement he requested, “* * * an immediate meeting so as to determine how this matter may be further negotiated and settled”; and concluded the letter with the following paragraph:

“By so notifying you of the desired retention of the ground mentioned in the aforementioned agreement, this letter in no way purports to admit to any matters contained in the agreements that may or may not be binding on my clients.”

While plaintiff’s evidence does not indicate precisely when such developments occurred, it shows in a general way that after the execution of the option agreement on May 2, 1957, the acreage it bought under the sales contract of February 2, 1957, as well as the 0.678 acre parcel, was developed by either Maroon Brothers or Mohawk Real Estate by the laying out and construction of streets (one of which bordered on the 0.678 acre parcel), and the installation of sewers, gas mains, and perhaps electric service. Such evidence of plaintiff’s also showed that the 0.678 acre tract increased in market value about $10,000 or $11,000 more than the value of the undeveloped land, and that it cost about $40 a front foot to develop the ground. Defendants introduced no countervailing evidence as to the increase in value of the 0.678 acre by reason of the improvements.

It was alleged in plaintiff’s petition, and specifically admitted in defendants’ answer, that on July 11, 1961 defendant by a general warranty deed conveyed the 0.678 acre parcel to Melvin H. Crecelius, Jr. and Virginia D. Crecelius, which deed was recorded on July 18, 1961. Defendants having failed and refused to pay, plaintiff thereafter instituted this action.

Defendants’ primary point is that the option agreement is invalid because it was not supported by a consideration. They argue that while they promised to pay plaintiff $10,000 or more if they elected to retain the 0.678 acre, “* * * Plaintiff promised nothing to Defendants in return for this promise nor did they incur any legal liability which could be construed as a consideration flowing to Defendants.” In furtherance of that argument they lay great stress upon the title of the instrument “Option Agreement,” and maintain that it is. essential to the validity of an option that it be supported by a consideration, which consideration must be a thing apart from the consideration for the sale of the land. Ragan v. Schreffler, Mo., 306 S.W.2d 494, 499. We concur. For an option is in effect no more than a continuing offer on the part of the optionor to sell within a stipulated time, and not binding upon or enforceable against the optionee unless and until he elects to exercise his option. Ragan v. Schreffler, supra; Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717.

However, the nature and validity of the instrument before us must be determined from all of its provisions, not from its title. And whether the portion in which defendants granted and plaintiff accepted an option is or is not void is immaterial. This for the reason that plaintiff’s action is not based upon a claim that it exercised its option to purchase the 0.678 acre tract and that defendants failed and refused to sell a.nd convey the same. Plaintiff’s claim is founded upon a breach of paragraph 2 wherein defendants promised and agreed to pay plaintiff a stated sum if defendants elected within the three year period to retain the 0.678 acre parcel. Our inquiry, then, is narrowed to the question of whether plaintiff gave any consideration in return for defendants’ promise to pay.

In view of defendants’ assertion that the agreement is invalid for want of consideration, and at the risk of appearing pedantic, it may not be amiss to quote the definition of the term given in Restatement, Contracts, Vol. 1, § 75, p. 80:

“(1) Consideration for a promise is
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification or destruction of a legal relation, or
(d) a return promise,
bargained for and given in exchange for the promise.
(2) Consideration may be given to the promisor or to some other person. It may be given by the promisee or by some other person.”

In the light of that definition we cannot agree with defendants that they received nothing from plaintiff in return for their promise to pay plaintiff. Defendants overlook or ignore the binding effect of paragraph 3 of the agreement. In that paragraph plaintiff bound itself to buy the parcel in question for a stated amount in the event defendant decided within the three year period not to retain it. Defendants also overlook or disregard the force and effect of paragraph 5 which provides that if defendants fail during the three year period to exercise their right of retention then defendants were obligated to sell the parcel to the plaintiff upon the terms set forth. Thus the consideration which plaintiff gave and defendants received for their promise to pay or sell was plaintiff’s specific and binding promise to buy the tract. As is made clear by the decisions of our appellate courts and by the Restatement on Contracts, the recognized general rule is that a promise by one party to a contract is sufficient consideration for a promise by the other party. Burger v. City of Springfield, Mo., 323 S.W.2d 777; Ragan v. Schreffler, Mo., 306 S.W.2d 494; Braudis v. Helfrich, Mo., 265 S.W.2d 371; Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Restatement, Contracts, Vol. 1, Section 75, p. 80; Section 77, p. 86.

Defendants also assert that the court erred in admitting into evidence the option agreement and the extension agreement, “* * * because they are vague, ambiguous and invalid instruments * * At the time such exhibits were offered and received in evidence no objection to their admission was made on the grounds that they were vague and ambiguous. Defendants, therefore, are in no position to raise such a point on appeal. Hoffman v. St. Louis Public Service Co., Mo., 255 S.W.2d 736; Ensign v. Home for the Jewish Aged, Mo.App., 274 S.W.2d. 502. Had such an objection been made it should have been overruled, for while the agreements are not models of draftsmanship, defendants promise to pay or sell and plaintiff’s promise to buy are set forth with sufficient clarity and definiteness in paragraphs 2, 3 and 5. At the time the extension agreement was offered, some time after the admission of the option agreement, defendants did raise an objection to the reception of both exhibits on the grounds that they lacked consideration. What we have already said on the subject of consideration disposes of that objection.

Defendants’ final point is that the option agreement and the extension agreement are invalid because they were obtained from defendants by fraud and duress. Such issues were injected into the case by defendants’ amendment of their answer at the start of the trial. Since both are affirmative defenses, Civil Rule 55.10, V.A.M.R., the burden of proving them rested on defendants. Mochar Sales Co. v. Meyer, Mo., 373 S.W.2d 911; Gennari v. Prudential Ins. Co. of America, Mo., 335 S.W.2d 55. In their argument defendants refer only to their own evidence regarding the circumstances under which they executed the option agreement and completely ignore all of plaintiff’s countervailing evidence. Assuming, without deciding, that defendants’ evidence was sufficient to sustain their burden of proof the fact remains that in all material respects it is in direct conflict with the testimony of Maroon, and with the corroborating testimony of Jolly. Civil Rule 73.01(d) provides that in reviewing a case tried upon the facts without a jury the appellate court shall not set aside the judgment unless it is clearly erroneous, and that “* * due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * *” Our Supreme Court has said that where, as here, the evidence is conflicting and close, and particularly where the decision depends upon conflicting oral testimony and the credibility of the witnesses, an appellate court should generally defer to the findings of the trial court unless satisfied that the findings should have been otherwise. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 850; In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148. Under this record we cannot say that the judgment was clearly erroneous. In re Petersen’s Estate, supra.

The judgment is therefore affirmed.

PER CURIAM:

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

Accordingly, judgment affirmed.

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


author: TOWNSEND, Commissioner.

text:
    Thomas J. O’MARA and Evelyn O’Mara, Plaintiffs-Appellants, v. Winefred GINGRICH and Mrs. Winefred Gingrich, Defendants-Respondents.
    No. 32813.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Gerritzen & Gerritzen, St. Louis, for appellants.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, Robert E. Keaney, St. Louis, for respondents.
   TOWNSEND, Commissioner.

Petition in two counts alleging tortious destruction of plants, shrubbery and trees by defendants through the instrumentality of a tree trimming company. Damages in the amount of $14,000 were prayed. The record shows that personal service was had upon the defendants.

On November 2, 1966, default and inquiry was granted plaintiffs against defendants and copy thereof was mailed to defendants’ insurance company.

Notice that plaintiffs would take up for hearing the default and inquiry on December 6, 1966 was filed on November 30, 1966 and copy thereof was mailed to the defendants and to their insurance company on November 29, 1966.

The case was called for hearing on December 6, 1966. Defendants did not appear and plaintiffs presented their evidence. Judgment was entered for plaintiffs on the two counts for $5000 on the same date. On December 7, 1966, defendants filed their motion to “Set Aside or Vacate Default Judgment”, alleging that they had meritorious defences both as to the merits of plaintiffs’ asserted cause and as to damages. Hearing on the motion was had on December 9 and the matter was submitted. The trial court set aside the default judgment on December 13; defendants were given ten days within which to file responsive pleadings.

Plaintiffs filed Motion to Reinstate Judgment on December 19, 1966, asserting that failure to reinstate would be an abuse of discretion and asking that the court state that its decision on this motion be a final appealable order. The Motion to Reinstate was overruled December 20 and notice of appeal was filed on December 23, 1966.

Rule 75.01, V.A.M.R., provides:

“The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.”

Plaintiffs base their charge of an abuse of discretion upon the ground that defendant totally failed to show good reason or excuse for their default and likewise failed to plead facts which would show a meritorious defence to plaintiffs’ complaint.

Defendants rest their position entirely upon the proposition that the trial court’s order of December 13, 1966, vacating the default judgment is not an appealable order.

It cannot he controverted that an order vacating a default judgment within thirty days after rendition does not amount to a final judgment. After the default judgment has been set aside the posture of the case is simply this: No determination of the merits of the case has been made, no rights or duties of either party have been decided and after appropriate responsive pleading has been filed the case will be ready for trial. As was pointed out by this court in Diekmann v. Associates Discount Corp., 410 S.W.2d 695, 697, there is no element of finality where the trial court sets aside the default judgment within thirty days after the judgment — or in pre-code days did so during the term in which default judgment was rendered. The net result has been a long line of cases holding that, that finality lacking, an order vacating a default judgment is not appealable. Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Holder v. Chidister, Mo., 193 S.W. 568; Carter v. Levy, Mo.App., 217 S.W. 549; Owens v. Owens, Mo.App., 280 S.W.2d 867; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467; Harper v. Harper, Mo.App., 379 S.W.2d 889; Steffan v. Steffan, Mo.App., 390 S.W.2d 587. As was so graphically put in Diekmann v. Associates Discount Corp., supra, “During this incubation period a default judgment is ‘within the breast of the court’; and because it has not become final, setting it aside is a discretionary act from which no appeal lies.” Long ago, the Supreme Court said, with respect to an order vacating a default judgment, “The motion then was to set aside the judgment, and not for a new trial, and the court was not required to give a reason for its action.” Crossland v. Admire, supra, at 24 S.W. 154, 155.

In view of the argument of counsel, we note the distinction between the case under consideration and the following situations:

1. Where defendant’s motion to vacate the default judgment is overruled within the thirty day period. ■

2. Where the defendant’s motion to vacate is sustained after the thirty day period.

In situation No. 1, the defendant has “reached the last ditch” (Carter v. Levy, supra) and the order overruling his motion to vacate is an appealable order. Edwards v. Rovin, Mo.App., 322 S.W.2d 139. And see Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675. In the second situation, where the default judgment has become final, the order sustaining defendant’s motion to vacate is an appealable order; here the plaintiff has had a final judgment taken from him and he is obviously an aggrieved party. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Diekmann v. Associates Discount Corp., supra.

While not denying the great weight of the decided cases, plaintiffs-appellants ask that we consider as an appealable order the sustaining of the motion to vacate and direct to us a policy argument that it is against public policy to further crowd the dockets and cause justice to wait until after a jury has rendered a verdict determining the issues. In view of the statute, the rules and the precedents, we think that such an entreaty should be addressed elsewhere.

The order of the trial court sustaining the motion to vacate the default judgment was not an appealable order. The appeal is dismissed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the appeal is dismissed.

ANDERSON, P. J., WOLFE, J., and MICHAEL F. GODFREY, Special Judge, concur.


author: CLEMENS, Commissioner.

text:
    Ewald L. WINTERIMANN, Plaintiff-Respondent, v. ST. LOUIS UNION TRUST COMPANY et al., Defendants, Associated Dry Goods Corporation, Stix, Baer & Fuller Division, Defendant-Appellant.
    No. 32853.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.

      H. Lawrence Miller and Joseph A. Kirk-wood, St. Louis, for appellant.
    R. H. McRoberts, Jr., Bryan, Cave, McPheeters & McRoberts, St. Louis, for respondent.
   CLEMENS, Commissioner.

This appeal concerns priority between two judgment creditors who garnished an executor. The issue: Was the plaintiff’s garnishment premature in view of the statute that an executor is not “liable to be summoned” as a garnishee prior to an order of distribution, and in view of the facts that plaintiff delivered his request for garnishment to the sheriff before the probate court had ordered the executor to distribute but the sheriff served his writ of garnishment on the executor after the order of distribution ? The trial court upheld plaintiff’s garnishment. The other creditor, whose garnishment followed the plaintiff’s, appeals from the order upholding plaintiff’s earlier garnishment.

The issue was tried on stipulated facts. An abridged statement will be enough to frame the issue raised here. Plaintiff-respondent Ewald L. Wintermann had an $82,424 judgment against defendant Louise M. Howe. The interpleading defendant-appellant, Associated Dry Goods Corporation, Stix, Baer & Fuller Division (Stix), had two judgments against Mrs. Howe totaling $9,444. At the times here concerned, the estate of Mrs. Howe’s husband was in process of administration. On April 9, 1964, the probate court ordered the executors to distribute to Mrs. Howe.

On March 13, 1964 (27 days before the order of distribution), plaintiff got a writ of execution on his judgment. On the same day plaintiff executed and delivered to the sheriff a request for garnishment. The sheriff took no action then but on April 14, 1964 (5 days after the order of distribution), the sheriff, at plaintiff’s direction, summoned the executors as garnishees.

Thereafter, in an attempt to collect on its $9,444 judgments against Mrs. Howe, Stix also garnished the executors. On August 13, 1964 (some four months after the order of distribution), Stix had a writ of garnishment served on the executors to collect its first judgment. On November 2, 1965, Stix had another writ of garnishment served on the executors to collect its second judgment.

During the course of these garnishments the executors paid $54,654 of Mrs. Howe’s funds into court. Plaintiff claims it all under his $82,424 judgment, contending his garnishment is prior in time to Stix’s garnishment. Stix claims plaintiff’s garnishment was invalid and that Stix is therefore entitled to $9,444 of the fund. This $9,444 is the amount in dispute.

Stix contended below that plaintiff’s earlier garnishment was premature and therefore invalid. This contention of prematurity was based on the fact that plaintiff’s request for garnishment was delivered to the sheriff before the probate court ordered the executors to distribute, and that by § 525.030, V.A.M.S., an executor is not “liable to be summoned as garnishee” prior to an order of distribution. Stix contended that the executors were “liable to be summoned” from the moment plaintiff delivered his request for garnishment to the sheriff, and that this liability to be summoned existed before the probate court ordered the executors to distribute.

As said, the trial court denied Stix’s contention, upheld plaintiff’s garnishment, and ordered the entire fund paid to him. Stix appeals from that order.

It is conceded that the plaintiff, twenty-seven days before the order of distribution, took preparatory steps to garnish the executors. He got a writ of execution and “executed his Request for Garnishment directed to [the executors] and delivered said Request for Garnishment to the Sheriff of the City of St. Louis.” It is also conceded that five days after the order of distribution plaintiff “requested the Sheriff of the City of St. Louis to summon [the executors] as Garnishees” and that the • sheriff then did so. Nonetheless, Stix says the issue is to be determined by definition of the word “liable” in § 525.030, V.A.M.S., which says an executor shall not “be liable to be summoned” as a garnishee prior to an order of distribution.

Stix’s argument runs like this: An event is “liable” to happen if it is within the range of possibility; that therefore the executors became “contingently subject to be summoned” when plaintiff first delivered his request for summons to the sheriff; that this voided plaintiff’s garnishment. Quoting Stix’s brief, this is the gist of its argument: “Consider the intention of the legislature. It would seem from the choice of words employed in the statute (the title of which is ‘Who not liable to be summoned as Garnishee’), that the legislative body intended to protect an executor, not only from the service of process, but more than that, they intended to protect him from the threat of such service, until such time as his obligation to pay became final and absolute.” (Our emphasis.) We believe that this literal interpretation — based on one meaning of the word “liable” — is out of harmony with the legislative intent of § 525.030, V.A. M.S. Instead, we accept plaintiff’s interpretation that the phrase “liable to be summoned” means subject to summons and that the statute is intended to protect executors from being effectively summoned, not to protect them from the mere threat, possibility or probability of being summoned.

“Liable” is a word of flexible meaning. Stix quotes Black’s Law Dictionary defining the word “liable” as meaning “exposed or subject to a given contingency.” But that same authority (Fourth Edition at p. 1060) also defines the word “liable” as meaning “bound or obliged in law or equity.” Black illustrates those definitions: “liable for such tax” means “subject to a tax”; “liable to action” means “liable to judgment”; “liable to penalty” means “subject to penalty.” We think the weight of all this favors the plaintiff’s contention that the phrase “liable to be summoned” simply means “summoned” and that the statute protects an executor from being effectively summoned, not from the mere threat of being summoned.

Assuming, arguendo, that the phrase “liable to be summoned” is ambiguous, we must construe it to ascertain and give effect to the legislative intent. Foremost Dairies, Inc. v. Thomason, Mo. (banc), 384 S.W.2d 651 [5]. In this we consider the object sought to be accomplished: the manifest purpose of the act. State v. Tustin, Mo.App., 322 S.W.2d 179 [3]; Hinds v. Kircher, Mo., 379 S.W.2d 607 [5]. We do not learn that intent by the definition of isolated words or phrases but by considering the words within the whole context of the statute itself and other statutes that apply to the subject matter. Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7 [4]; State v. Bern, Mo.App., 322 S.W.2d 175 [1-5].

Chapter 525, V.A.M.S., governs garnishments in aid of execution. Since the first three sections are in pari materia we consider them together. Section 525.010 says all persons who are debtors of the defendant shall be subject to garnishment. Section 525.020 says the sheriff shall summon garnishees when he is so directed by a plaintiff. Section 525.030 says that certain public officers, and executors prior to being ordered to distribute, shall not be liable to be summoned as garnishees. Consider §§ 525.010 and 525.030 together: the former makes all debtors subject to garnishment, the latter exempts certain of them. All debtors except those exempted can be garnished.

It is historically apparent that § 525.030, V.A.M.S., is meant merely to exclude certain persons from the obligation to respond in garnishment. By the Territorial Laws of 1818, § 2 at p. 600, all debtors were subject to be summoned as garnishees. This provision was carried over into R.S. Mo. 1825, § 2 at p. 145. Eleven years later, by the Laws of Missouri of 1836, § 2 at p. 44, the legislature declared that no sheriff or certain other public officers “shall be summoned as garnishees.” By another enactment, nineteen years later (R.S.Mo. 1855, § 27 at p. 246), the legislature broadened the exemptions from garnishment and declared further that certain executors shall not “be liable to be summoned.”

We bear in mind that a garnishee’s obligations arise not at the time the plaintiff requests the writ but at the time the summons is served. Considering §§ 525.010 and 525.030, V.A.M.S., together —and giving weight to their legislative history — it is our opinion that by § 525.030 the legislative intent was simply to exempt certain executors (those who had not been ordered to distribute) from the obligation of responding in garnishment. The present executors were not exempt, because they were served with summons after they had been ordered to distribute. We find no basis for Stix’s contention that § 525.-030 was intended to protect the executor from the possible threat of summons that arose when plaintiff requested the sheriff to issue a writ of garnishment.

In its brief Stix says — for the first time — the trial court erred in upholding plaintiff’s garnishment, because summons was served before expiration of the 30-day period in which the probate court’s order of distribution was subject to appeal. This point was not raised in Stix’s after-trial motion, so it is not preserved for review. Civil Rule 79.03, V.A.M.R.

The trial court correctly denied Stix’s attack on plaintiff’s garnishment. The judgment will be affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


author: TITUS, Judge.

text:
    E. A. STROUT REALTY AGENCY, INC., Plaintiff-Respondent, v. Virginia R. McKELVY, Defendant-Appellant.
    No. 8712.
    Springfield Court of Appeals. Missouri.
    Jan. 12, 1968.

      Ted M. Henson, Jr., Poplar Bluff, for defendant-appellant.
    Hyde, Purcell & Wilhoit, Poplar Bluff, for plaintiff-respondent.
   TITUS, Judge.

Without jury assistance, the Circuit Court of Butler County adjudged the defendant, Virginia R. McKelvy, indebted to plaintiff for a real estate commission in the sum of $2,800. Plaintiff, a corporate real estate broker, was represented in all concerned transactions by its salesman, Carter Fogle. In this appeal defendant contends the judgment of the trial court was erroneous because “(a) there is no evidence that plaintiff’s salesman was the inducing or procuring cause of the real estate sale in question and (b) there is evidence that the negotiations between plaintiff’s salesman and the purchaser of the real estate in question had broken off before the sale was made between defendant and the said purchaser.”

Defendant had executed and plaintiff accepted a written “Open Non-Exclusive Listing Agreement with E. A. Strout Realty-Agency, Inc.,” which, in part, provided: “I * * * employ you to procure a purchaser, ready, willing and able to buy [my 88 acre farm in Butler County, Missouri] at the listed price and terms [Price — $29,-500; Down Payment — $5,000; Terms of Balance — $100 monthly; Interest — 6%], or at a price and terms acceptable to me, and to accept a deposit thereon * * * If you procure a purchaser as defined above, I agree to pay you a commission of 10% of the selling price * * * I reserve the right to sell the property to a buyer procured by myself or through another agent and in such case no commission or other charge shall be due you, provided such sale or transfer is not made directly or indirectly to or through your prospect.” This agreement was in force at all times involved.

Ralph Hargrove, the purchaser, first acquired information of defendant’s property October 2, 1964, when he went to plaintiff’s Poplar Bluff office to discuss his interest in buying a small farm. Defendant was in Florida and plaintiff’s salesman Fogle had the key. Hargrove “had to move” from his residence “and was going to move and was changing up,” and Fogle took him to defendant’s farm and they inspected the house. Fogle and Hargrove next discussed defendant’s farm on October 10, 1964. The third time Fogle and Har-grove conferred about the farm was on October 14, 1964, when they again went to the property and “walked over it.” During this period Fogle had shown other farms to Hargrove and quoted the price on defendant’s farm as being $29,500 with $5,000 down. Hargrove inquired “if she [defendant] would take a thousand dollars down. I suggested that [he] make the offer on a paper and give me some earnest money and we would contact Mrs. McKelvy,” but this was not done.

“On approximately October 15th, 1964,” or “just two or three days” before the actual sale of the property, Hargrove was contacted by defendant’s brother, Marvin Williams. Hargrove and Williams had been acquainted for “thirty-five or forty years, I guess,” and Williams was aware of the fact Hargrove “had to move.” Williams testified “On my own, absolutely * * * I was just trying to help [my sister] sell her place and [Hargrove’s name just] came in mind, so I went to see him * * * and we talked about it.” Williams did not show the farm to Hargrove nor accompany Hargrove when he talked with the defendant. “The terms that were worked out were directly between Mr. Hargrove and Mrs. McKelvy.” Williams did, however, go with defendant and Hargrove on October 29, 1964, when they “closed the deal” for $28,500 at an attorney’s office.

A few days after October 14, 1964, according to Fogle, defendant arrived from Florida and went to plaintiff’s office “for her key.” Fogle said he then told defendant “we had a prospect and * * * was trying to get him to make us some offer.” Fogle insisted he informed defendant “specifically that Mr. Ralph Hargrove was the prospect for her property.” Defendant’s version is somewhat different, i. e., “about three or four days [before October 29,1964] I went [to Fogle’s office] to find out before I sold the place * * * if he had any luck in selling the place, and he said no not yet * * * but he said there was somebody who would like to buy the place. He said he might buy the place, but he didn’t know.” Defendant denied Fogle had revealed to her the identity of his prospect and asserted “I never heard of Mr. Ralph Hargrove [until] * * * on a Sunday morning [presumably referring to October 25, 1964] and he introduced himself to me and said, I want to see your house.”

Hargrove testified he neither knew defendant nor her farm “before Mr. Fogle showed it to” him, and although defendant advised him she had “a contract with Strout Realty Company concerning this property” he did not tell either defendant or her brother “that Mr. Fogle had showed [him] this farm.” The buyer stated he had not made up his mind to buy defendant’s farm on any terms during “any transactions” he had with Fogle and had never made a definite offer to Fogle to buy the property. Hargrove further recounted that “after the last time [he] saw Mr. Fogle about this farm * * * me and another man, we rented six hundred acres.” When this case was tried on April 5, 1967, Hargrove had paid the defendant $12,000 cash on the purchase price.

“After the deal was closed” between defendant and Hargrove “and we had come back home,” Fogle went to the farm and encountered Hargrove. Defendant appeared shortly thereafter and Fogle said she told him “I have sold my place to that man there * * * Mr. Hargrove * * * She said she could sell the property to anyone that she wanted to * * * She said that she was going to Florida that night * * * and there wasn’t a thing I could do about it.” Mrs. McKelvy admitted the encounter but denied Fogle’s recitation of the conversation by declaring “I didn’t tell him nothing.” Hargrove moved into the house purchased from defendant on October 29, 1964.

Plaintiff’s right to a commission is to be governed by the agreement between the parties. Rayfield v. Radford, Mo.App., 404 S.W.2d 423, 425(1); Nichols v. Pendley, Mo.App., 331 S.W.2d 673, 676, and cases there cited in note 5. Under the contract here plaintiff was entitled to a commission when it procured “a purchaser, ready, willing and able to buy” defendant’s farm at the listed price and terms or at another price and terms acceptable to defendant. Defendant does not contend Hargrove was not ready, willing and able to buy her property. That she actually sold him the farm would prevent her from effectively denying such to be a fact. Le Compte v. Sanders, Mo.Apo., 229 S.W.2d 298, 302(4) and cases cited; Glassman v. Fainberg, Mo.App., 35 S.W.2d 950, 952(4) ; 12 Am.Jur.2d Brokers § 183 at p. 924. The reservation in the agreement which permitted defendant to sell the farm herself without liability for a commission was conditioned that any sale she might effect could not be “made directly or indirectly to or through” a prospect of the plaintiff. Hargrove was undoubtedly Fo-gle’s and hence plaintiff’s prospect. Nevertheless, the parties have not stressed this phase of the contract and we will not undertake to belabor the point. Therefore, our concern under defendant’s points upon appeal, supra, is to determine if plaintiff “procured” Hargrove as the buyer and, if so, whether defendant is relieved of liability because the negotiations between Hargrove and Fogle were “broken off” before defendant consummated the sale.

Unquestionably Fogle’s undertakings on behalf of plaintiff provided Har-grove with his first knowledge of defendant’s farm and served as the sole initial stimulant to rouse Hargrove’s interest as a possible purchaser. As stated in 12 C.J.S. Brokers § 93a, pp. 216-217: “After a broker has found a customer and commenced negotiations, neither the principal nor the customer can break them off, take the matter into their own hands, and defeat the broker’s right to a commission by concluding the transaction without his aid; the principal cannot take advantage of the broker’s work and escape payment of a commission by closing the deal himself.” But a broker is not necessarily entitled to a commission on every sale made personally by the owner and in which he has an interest, for “It is the general rule that a real estate broker is entitled to recover his commission * * * if he shows himself to have been the procuring cause of the sale although the owner himself had finally consummated the sale.” Barnum v. Hutchens Metal Products, Mo., 255 S.W.2d 807, 808 (1) ; Rogers v. McCune, Mo.App., 283 S.W.2d 872, 877(5, 6); United Farm Agency v. Howald, Mo.App., 263 S.W.2d 889, 892 (2) and cases cited; Armco Steel Corp. v. Realty Investment Co., 8 CCA, 273 F.2d 483, 489(8). For Fogle’s services to constitute the procuring cause it was necessary that his initial efforts in calling Hargrove’s attention to defendant’s' farm set in motion a series of events which, without break in continuity, and without interruption in negotiations, eventually culminated in the sale. Real Estate Enterprises v. Collins, Mo.App., 256 S.W.2d 286, 289(3).

Hargrove’s only actual contact with defendant’s farm was exclusively through Fo-gle until about October 25, 1964, when he went alone to defendant’s property and told her “I want to see your house.” Until that time it was only through Fogle’s efforts that Hargrove had inspected the house, walked over the property and received accurate information as to its “listed price and terms.” The mere fact that during this period Hargrove did not accept the quoted price and terms or make an offer of his own, is not evidence of a hiatus either in Fogle’s efforts or Hargrove’s interest. The appearance of Williams, as described by both himself and Hargrove, provided nothing more than a meaningless interlude by an interloper. Defendant, if her testimony and that of Williams is to be accepted, was unaware of her brother’s intermeddling. Williams had no authority to sell the property or to discuss price and terms and, in fact, did not undertake to do so. As far as the record is concerned, the meeting of Har-grove and Williams relative to the farm was not reported to defendant and amounted to nothing more than they just “talked about it.” The evidence was that Hargrove “had to move” and his principal interest was in acquiring a small farm and a residence. This need was not satisfied when Hargrove “and another man” rented six hundred acres because Hargrove immediately moved into defendant’s house after the purchase was completed. This circumstance is evidence of Hargrove’s continuing requirement for a residence and uninterrupted interest in defendant’s property.

If a broker is not bound to obtain a binding contract to earn a commission, he may be said to have procured a buyer if he be the means of bringing the parties together or into communication with one another. This does not mean the customer procured by the broker must be literally introduced face to face with the seller. Notice to the owner the broker has found a customer and discloses his name, entitles the broker to a commission if sale of the property by the owner is effected through such disclosure. Tyler v. Parr, 52 Mo. 249, 251, cited approvingly in Cornet & Zeibig, Inc. v. 430 Withers Realty Co., Mo. (banc), 415 S.W.2d 751, at 756; 12 C.J.S. Brokers § 91c, pp. 211-212. Fogle said he told defendant the customer he had was Hargrove. Defendant only disputes that Fogle told her the name of his prospect but was uncertain if Hargrove advised her “he had already looked at your place” by stating “I don’t remember anything about that, because [Hargrove] walked in and he wanted to look at the place right quick * * * I don’t remember that part of it.” But whether Fogle did or did not tell defendant his customer was Hargrove is merely a circumstance to be considered in ascertaining if Fogle’s efforts were the procuring cause of the sale. If they were and influenced Har-grove to go to defendant and make the purchase, then plaintiff is entitled to its commission. United Farm Agency v. Cook, Mo.App., 283 S.W.2d 6, 12(3), and cases cited under headnote 2; Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 914 (4). Hargrove was the only prospective purchaser to contact defendant. She testified that “three or four days” before the actual sale was made to Hargrove, she went to Fogle’s office to see if he had sold the farm “before I sold the place.” From this it may be inferred defendant had already made a deal with Hargrove and she admits Fogle told her he then had a prospect who “might buy the place.” If defendant’s recollection is accurate, it is odd she did not tell Fogle of her sale and the name of her intended purchaser, and singularly strange the normal curiosity innate in all her species failed to prompt defendant to inquire of Fogle the identity of his prospect. In any event, defendant exercised little or no care to acquire the true status of the situation. “Ordinarily, a broker who has been the effective cause of a transaction is entitled to the agreed commission although the principal does not know that the broker has played a part in the negotiations * * * Having promised the broker a commission, the principal ordinarily should know that the appearance of a customer may have been caused by the broker, and to avoid liability for payment he should make inquiries of the broker.” Restatement of Agency, § 448, Comment f, p. 1055; Restatement (Second) of Agency, § 448, Comment f, p. 359.

If a broker with whom the owner lists his property for sale procures a purchaser, the owner cannot relieve himself of his obligation to pay a real estate commission by the simple expediency of selling to the purchaser at a price slightly reduced from that quoted to the broker. Le Compte v. Sanders, supra, 229 S.W.2d at 302(3), and cases cited. In the instant case the price quoted to Fogle was $29,500. The sale price was $28,500 or a reduction of but 3.4%. The terms defendant quoted to Fogle provided for a $5,000 down payment, with the balance payable at the rate of $100 per month bearing 6% interest. On the quoted terms, computing 6% interest on the unpaid balance after a $100 monthly payment on the principal, we calculate Hargrove would have paid defendant a total of $11,457.50 in the thirty months which transpired between the dates of sale and trial. Har-grove testified he had paid the defendant $12,000 in cash up to the time of trial. While we are not advised of the terms figured in the actual sale, there appears little difference between the price and terms upon which the property was listed with plaintiff and the price and terms actually agreed to. This too is a matter to be considered in pondering whether there had been any faltering or abatement in Hargrove’s interest in the property from his initial introduction thereto by Fogle until actual acquisition of the farm was made.

Defendant reminds us of two general rules often applied and acknowledged in cases of this character, to-wit: “If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed” (Taylor v. Vestal, Mo., 304 S.W.2d 820, 823-824), and, “although ‘the broker may be the means of first bringing the parties together and of opening negotiations with them, yet if the negotiations are unproductive and the parties in good faith withdraw therefrom and abandon the proposed purchase and sale, a subsequent renewal of negotiations followed by a sale at a lower price does not entitle the broker to commissions, as he cannot be said to be the procuring cause of the sale.’ ” Cornet & Zeibig, Inc. v. 430 Withers Realty Co., supra, 415 S.W.2d at 756. It is apparent these rules are inapplicable in this case. Hargrove did not prove to be an unwilling purchaser for he actually bought the farm on defendant’s terms in less than a month from the time he was first made aware of the property through Fogle’s efforts. In this situation it cannot be said Fogle’s services were unproductive or to no purpose and there certainly is no evidence of any intent on the part of plaintiff to abandon its employment. Hargrove and defendant never withdrew from a proposed purchase, but, to the contrary, actually consummated the purchase and sale as originally incited by Fogle.

“And the issue as to whether a broker has been the procuring cause of sale is ordinarily one of fact to be determined by the trier of the facts.” Holman v. Fincher, Mo.App., 403 S.W.2d 245, 250(4), and cases there cited in note 7; 12 Am.Jur. 2d Brokers § 190, pp. 931-933. In this court-tried suit, we are bound to “review the case upon both the law and the evidence,” to afford due regard “to the opportunity of the trial court to judge of the credibility of the witnesses,” and not to set the judgment aside unless it be “clearly erroneous.” V.A.M.R. 73.01(d). The agreement did not obligate plaintiff by its sole effort to consummate the sale. Defendant never heard of Hargrove until after Fogle had showed him the farm twice and discussed it with him on three occasions. In about two weeks thereafter Hargrove purchased it. We cannot say the apparent finding by the trial court plaintiff (through Fogle) procured Hargrove as the purchaser of defendant’s farm and that their negotiations had never broken off (even though Har-grove finally dealt directly with the owner) is clearly erroneous. Consequently, we are obliged to affirm the judgment of the trial court and its affirmance is hereby ordered.

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

      . Suit was instituted to recover a $2,-800 commission on the mistaken belief the actual sale and purchase price was $28,000 instead of $28,500 as testified to by Mr. Hargrove.