author: L. F. COTTEY, Special Judge.

text:
    Mary GRUBBS, Respondent, v. Josephine MYERS, Appellant.
    No. 24325.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1966.
    Application to Transfer Denied Nov. 14, 1966.

      Charles R. Nuzum, Kansas City, for appellant.
    George Schwegler, Jr., Wayne F. Caskey, Jr., Kansas City, for respondent, Smith, Schwegler & Swartzman, Kansas City, of counsel.
   L. F. COTTEY, Special Judge.

Plaintiff’s former husband, as an incident to their divorce in 1954, entered into a property settlement contract by which he agreed to pay $25,000 to plaintiff, and a fee of $5,000 to defendant who was plaintiff»' attorney in the case. Both obligations were to be retired in installments over a period of years, and, in due course, both were discharged in that manner. Immediately after the divorce, apprehending that the delay in collecting her fee might work some hardship on defendant, plaintiff advanced her the full $5,000 upon the understanding that defendant would refund it as and when she received the installments due her from plaintiff’s husband. Notwithstanding defendant’s eventual collection of the fee in full from plaintiff’s husband, however, she has repaid plaintiff only $1,650 of the amount advanced. This action is brought to recover the balance.

Defendant insists that the transaction in question was not an advancement in any sense of the word, but was in reality the payment of a separate fee due her from plaintiff for services independently rendered in negotiating the property settlement, and that no part of it was to be refunded. That issue was submitted to the jury and resolved against defendant.

On her appeal defendant assigns error in the trial court’s refusal to give this instruction: “Your verdict must be for defendant if you believe that plaintiff received all money due her as set out in the property settlement agreement”. Plaintiff admitted receiving all money due her under the property settlement agreement. There was never any issue as to that. The dispute was whether the money received by defendant from plaintiff was an advancement which defendant was obligated to repay, or whether it was a fee she was entitled to retain. The tendered instruction was better calculated to conceal that issue than to resolve it. Nor can it be approved as the converse of any instruction given by plaintiff. It stated an affirmative proposition which neither impaired the claim nor imported a defense, but was irrelevant as to both. It was properly refused.

Defendant’s other assignments, with our comments, follow:

(a) “The verdict was against the weight of the evidence and is not supported by the evidence”. It has for a long time been held that such an assignment presents nothing for appellate review in a jury case. Connor v. Temm, Mo.App., 270 S.W.2d 541, 547.

(b) “The $5,000 fee owed by plaintiff to defendant” for negotiating the property settlement, and “the fee of $5,000 in the divorce action” were both “fair and reasonable and plaintiff had no right therein”. It is generally understood that abstract statements of that kind “even though denominated assignments of error, present nothing for review”. Crocker v. Tripp, Mo.App., 344 S.W.2d 149, 150. And more especially so since no issue of reasonableness was raised in this case and no mention of it was made in the motion for new trial.

(c) “The court erred in giving plaintiff’s Instruction No. 2”. The instruction is nowhere “set forth in full” or in “questioned portion” as required by Rule 83.05(a), V.A.M.R. The complaint is unil-lumined by citation of authority. The subjoined argument is not as clear as could have been wished, but the drift of it, as best we can make out, is that the instruction, which was plaintiff’s verdict-directing instruction, should have hypothesized the facts on which the defense was predicated. This is a new concept. At any rate, the question is in such a state, either of novelty or obscurity, that we would not want to enter at any length upon a discussion of it in the absence of a more orthodox presentation.

No material error having been called to our attention, and none having been discovered by our independent examination of the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BRADY, Commissioner. PER CURIAM.

license: Public Domain

text:
    Agnes ECKER, Plaintiff-Appellant, v. BIG BEND BANK, a corporation, Defendant-Respondent.
    No. 32360.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 13, 1966.
    Application to Transfer Denied Nov. 14, 1966.

      Lusser & Lusser, Rene J. Lusser, St. Louis, for plaintiff-appellant.
    Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for defendant-respondent
   BRADY, Commissioner.

This case comes to the writer upon recent reassignment. Appellant seeks by this action to recover damages of $15,000 which allegedly resulted from a fall she sustained while on respondent’s premises. This appeal follows the trial court’s action sustaining respondent’s motion for summary judgment and entering final judgment in favor of respondent. The only issue before this court is whether the facts established by the pleadings, the plaintiff’s deposition and those stated in the affidavit filed in connection with the motion for summary judgment were sufficient, as a matter of law, to relieve the defendant of liability and entitle it to the judgment rendered. If, under that evidence, which was the only evidence before the court, and as a matter of law, the plaintiff is not entitled to recover, then the defendant is entitled to a summary judgment. Brown v. Prudential Insurance Co. of America, Mo.App., 375 S.W.2d 623, l. c. 629.

The physical topography of the area where this fall occurred is of importance. The defendant maintains a parking lot to the rear of its building. This lot lies immediately to the south of a parking lot maintained in connection with an office building in which the plaintiff’s physician had offices. The level of the defendant’s parking lot is 6 feet above the grade of the other lot. To provide pedestrian access to its premises from the lower parking lot, the defendant constructed a stairway, the top step of which was concrete and which also formed the top of the retaining wall separating the two parking lots. It is approximately 14 inches from this step down to the surface of defendant’s lot. Curved raised asphalt mounds are located on defendant’s lot and serve as wheel blocks for automobiles parked thereon. These are approximately 5" high. A line of these wheel blocks was placed about 1U/2 inches south of the retaining wall so that a gutter was formed between them and the retaining wall.

Plaintiff had parked her automobile on the lower lot and climbed the stairs as she intended to transact her business with defendant before returning to the office building where she had an appointment with her physician. She had never used the stairway before. Upon reaching' the top step she discovered that an automobile was parked on defendant’s lot directly in front of the stairway. Plaintiff determined not to step down to the surface of defendant’s lot by proceeding straight ahead as the front bumper of this automobile was very close to the edge of the retaining wall and thus to the top step where she was then standing. Instead she decided to reach the surface of defendant’s lot by turning somewhat obliquely to her right, stepping on the top of the wheel block to the right of the stairway, and then to the surface. What happened is shown by her testimony: “I stepped on the mound and the next thing I was on the ground.” After her fall she was lying on defendant’s lot to the south of the wheel block and between the automobile parked directly in front of the stairway and another parked to plaintiff’s right.

The judicial reports of this State make abundantly clear our approval of the principle formulated in Restatement, Second, Torts, § 343, p. 215, imposing liability, under certain conditions, upon an invitor for bodily harm to invitee caused by a natural or artificial condition on the former’s premises. See Mo.Digest, Negligence, ©^52. The Restatement reads as follows: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realise the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. * * * ” (Emphasis supplied.) It is equally well settled that the basis for imposing liability is the invitor’s superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. It follows that where the danger is or should be as well known to the invitee as to the invitor, the latter has no duty to warn of such danger and incurs no liability for injury to the invitee resulting from the danger. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, l. c. 957. Since the plaintiff’s own evidence establishes beyond doubt that she saw the wheel block on which she stepped, as well as the general condition of the parking lots and stairs, plaintiff seeks to avoid the application of the above stated principles by having this court interpret § 343(b) of the Restatement so that the fact the condition was obvious to the plaintiff and seen by her would not be sufficient to relieve defendant from liability. Plaintiff argues that it must also be shown that she had a “realization of the risk” or an “appreciation of the danger” involved if she stepped on the asphalt block. Since the affidavits, pleadings and depositions do not contain any such allegation, plaintiff urges that the defendant has failed to show that it is entitled to judgment as a matter of law as required by Civil Rule 74.04, V.A.M.R., (c), (h), and therefore is not entitled to a summary judgment.

In Schmoll v. National Shirt Shops of Missouri, 354 Mo. 1164, 193 S.W.2d 605, the same contention advanced in the instant case by the plaintiff was ruled. In that case the dangerous condition was alleged to be large brass lettering placed in the floor of the store. The floor was wet. At 1. c. 607 the contention was made that although the plaintiff in that case looked and saw the condition, she had no knowledge or appreciation of the danger involved. The court held that the invitor should not be obligated to anticipate that invitees would fail to appreciate dangers generally known to be inherent in conditions that were obvious and that under the circumstances existing in the Schmoll case a person of ordinary prudence would have appreciated the slippery condition of the wet brass lettering which was open and which the plaintiff saw. This is the situation involved in the instant case. There is no hidden or secret peril here involved. Whatever danger existed was obvious to the plaintiff who had as much knowledge as the defendant. If the plaintiff had been warned about the conditions she characterizes as dangerous, she would not have obtained any more information than came to her when she saw them. It is commonly known that a curved raised surface such as the asphalt wheel block here involved can cause a person to fall; that it is not as safe to step upon as a flat surface. An invitee will not be permitted to recover when the dangerous condition is obvious and known or when, in the exercise of ordinary care, it should have been known by the invitee Wilburn v. Southwestern Bell Telephone Company, Mo.App., 382 S.W.2d 49, l. c. 53.

From what has been stated above it is apparent that there was no genuine issue as to any material fact involved in this case and that the defendant was entitled to judgment as a matter of law. It follows the trial court did not err in rendering a summary judgment as provided by Civil Rule 74.04, V.A.M.R.

The judgment should be affirmed.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

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


author: HOWARD, Judge.

text:
    Roy G. MILLER, Respondent, v. RANSON AND COMPANY, Inc., Appellant.
    No. 24389.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1966.
    Application to Transfer Denied Nov. 14, 1966.

      C. Thomas Carr, Sheridan, Sanders, Peters, Carr & Sharp, Kansas City, for appellant.
    Rodger J. Walsh, Kansas City, Rafter, Biersmith & Walsh, Kansas City, of counsel, for respondent.
   HOWARD, Judge.

This is a suit by the plaintiff below to recover commissions he claims to be due him under his employment contract with the defendant below. Trial to a jury resulted in verdict and judgment for plaintiff in the amount of $8,800.00 and a verdict and judgment for defendant, on its counterclaim, in the amount of $959.90. The defendant has duly appealed to this court from plaintiff’s judgment. Plaintiff did not appeal.

The defendant Ranson and Company, Inc. is an investment banking corporation specializing in municipal bonds. It is this specialized aspect of the business that is involved in the case at bar. It appears that in the business of underwriting municipal bonds, as conducted by defendant and the other companies which participated with defendant in the underwriting, that the investment bankers, through their agents and employees known as “buyers”, initiate the idea that a town or city might purchase or construct a natural gas distribution system, or other similar municipal utility. They then try to interest the city officials in such a project, and if they are successful, the investment bankers take the lead in securing the feasibility studies and other necessary preliminaries, at their own expense, and, in effect, lead the cities by the hand up to the point of the issuance of the bonds, which are underwritten or “bought” by the investment bankers. The investment bankers, such as defendant, then sell the bonds which they have underwritten or bought and make their profits out of the difference between the price they pay the city for the bonds and the price at which they are able to sell such bonds to the investors. When the banker, or more specifically his buyer, has created an interest in the city, an underwriting agreement is signed by the banker and the city officials. This contract is normally binding for three years and provides that the underwriter (the banker) will secure an engineering study to determine the feasibility of the proposed project. If the engineering study reveals that there is a likelihood of being able to secure a gas supply and that there would probably be a sufficient volume of customers to produce enough revenue to make the venture economically sound, then an election is held to authorize the city to issue the revenue bonds. If the bond issue carries, then a commitment to underwrite or purchase the bonds, in the form of a contract, is signed by the city and the underwriter; then application is made to the Federal Power Commission for an allocation of 'a gas supply from sources in interstate commerce and if such allocation is secured, then the actual contract to buy the bonds is signed, the bonds are issued and purchased by the underwriter. If at any step in this process the city determines, for any reason, not to go forward with the project, it can back out without obligation and the expenses of the engineering survey and other preliminaries are borne by the underwriter. The evidence indicates that about ninety per cent of the projects which are initially investigated by the underwriters fall through at some step before the actual issuance of the bonds.

These companies employ men known as “buyers” to interest the cities in the project and to carry the project through until it culminates in the bond issue. They also employ men known as “sellers” who sell the bonds primarily to institutional investors rather than the general public. The buyers are also interested in the sale of the bonds they buy and will do whatever they can to assist in the sale of such bonds. The buyers primarily travel around to the cities to drum up interest in such projects, whereas the sellers primarily stay in the office and attempt to make sales over the telephone, although they do travel to make personal contacts with the investors.

This case involves five bond issues for natural gas distribution systems in the cities of Madison, Perry, Paris, Monroe City and Grant City, all in the State of Missouri.

Late in May of 1960 the plaintiff Roy Miller contacted Jack Ranson, who was vice president of the defendant, and whose father was president of the defendant company, and asked for a job. He had previous experience in buying municipal bonds in the type of business heretofore described. This resulted in a meeting between Jack Ranson and the plaintiff wherein plaintiff was hired by defendant, primarily as a salesman, although in view of his past experience as a buyer, he was given a small territory of seventeen counties in northwest Missouri and some counties in northeast Kansas, in which he was authorized to buy. The terms of his compensation are disputed. He was to receive a salary of $400.00 a month. Plaintiff says this was a salary pure and simple and had no effect upon the payment of commissions. Jack Ranson, who was the only witness for the defendant, and with whom plaintiff had all his contacts with defendant, testified that plaintiff was to be compensated by commission only, but that he was given “a guarantee” or “guaranteed salary” of $400.00 a month. In addition to this $400.00, both parties agree that plaintiff received $100.00 a month as a drawing account. In addition to the $400.00 salary and $100.00 drawing account per month, plaintiff was to receive commissions on all bonds that he sold according to a specified schedule, which varied according to the maturity and other details of the bonds sold. This commission was paid or credited to plaintiff at the time of the sale and delivery of the bonds sold. Plaintiff was also to receive a commission of 10% of the net profit of defendant on any bonds which plaintiff bought. Both plaintiff and defendant agree as to the amount of the commission on sales and the commission on bonds bought, although there is some minor dispute as to the exact meaning of “10% of the net profit”. Defendant claims that all of the commissions, both buying and selling commissions, were to be applied first to pay back the $100.00 drawing account and then to pay back the $400.00 guaranteed salary, and only if plaintiff earned commissions over and above this $500.00 per month ($400.00 salary plus $100.00 drawing account) was plaintiff to be paid any commissions. Plaintiff admits that his commissions were to be applied to the drawing account, but denies that commissions were to be applied against the salary account. He testified that all buyers receive a salary plus their buyers’ commission and that the $400.00 was a salary, and was not to be offset against his commissions.

Defendant’s counterclaim was for the balance due on the $100.00 drawing account plus $175.00 advanced to plaintiff for traveling expense not paid back. Plaintiff admitted he owed the amount of the counterclaim. Verdict of such agreed amount was directed by the court and it is not in issue here.

Jack Ranson also testified that it was specifically agreed between him and plaintiff, at the time of plaintiff’s employment, that no buying commission would be paid to plaintiff after he left defendant’s employ, on any bond issue bought by plaintiff which was not finally concluded before plaintiff left defendant’s employ. He stated this was an unusual agreement. Plaintiff denies any such agreement and specifically testified that there was no discussion whatever of what would happen if and when he left the company.

In the fall of 1960, exact date uncertain, but within a few months after plaintiff started to work for defendant, there was a luncheon meeting attended by plaintiff, Jack Ranson for defendant, and John Will-hauck, vice president of Luce-Thompson and Company, investment bankers operating in the municipal bond field, at the Phillips Hotel in Kansas City, Missouri. It seems that defendant and Luce-Thompson had cooperated in underwriting municipal bonds in the past; plaintiff had previously been employed by Luce-Thompson and was a personal and business friend of John Will-hauck. At this meeting plaintiff and Will-hauck proposed to Jack Ranson that plaintiff be permitted to buy municipal bonds throughout the State of Missouri, and that he and Willhauck travel together to initiate these projects and to “buy” the bonds. Jack Ranson agreed to this and plaintiff and Willhauck did travel together. They contacted the city officials of the above five named Missouri cities, among many others, and were both present and one or both signed the underwriting agreements with each of these five cities on behalf of both defendant and Luce-Thompson as to Madison, Perry and Paris, and on behalf of these two investment bankers plus a third investment banker in the instances of Monroe City and Grant City.

Where two or more investment bankers underwrite one bond issue, one company takes the lead and acts as the “underwriters’ underwriter” or “manager” and does the detailed work in following the project to conclusion. In each of these instances, John Willhauck for Luce-Thompson and Company acted as the underwriters’ underwriter or manager and did 90 to 95% of the work on each of these five projects. His company was given a manager’s fee plus an additional percentage of the profits to compensate for this work.

There was testimony that the initial contract with the city, called the “underwriting agreement”, although it contained many contingencies on which the project could be discontinued by the city without obligation, is a firm contract which extends for three years, with the possibility of a further extension, and obligates the city to retain the bankers as underwriters of the bond issue, if the project is continued. The form of the contract is dictated by the limited nature of the authority of the city officials to bind the cities in such matters. All of these contracts were signed in the month of March, 1961. Thereafter, plaintiff cooperated with Willhauck and consulted with him in the necessary work as the projects went along and specifically in securing the withdrawal of the first engineer, who concluded that the projects were not feasible, and in securing a substitute engineer on the basis of whose reports the projects were brought to a conclusion.

Plaintiff left defendant’s employ on January 31, 1962. Thus he was in the employ of defendant 20 months. At the time plaintiff quit none of these five bond issues had been completely sold and the underwriting completed, and therefore plaintiff made no claim for this commission. He testified that after he left the company, defendant’s auditor, on either two or three occasions, wrote him letters stating that he owed the company $959.90, as the balance due on his drawing account plus unreim-bursed travel expenses and that shortly after the first such letter Jack Ranson wrote him a letter in which he stated, “Roy, you owe us so and so and I told Dad that you had more than this coming in commissions”. Plaintiff stated that he destroyed the letter but that there should be a copy in defendant’s files. No such copy was produced. All three of the witnesses, Willhauck, plaintiff and Jack Ranson testified that the contracts with these five cities were “buying” contracts or “buys” and both plaintiff and defendant agreed that plaintiff was to receive a commission of 10% on buys. It appears from settlement sheets in evidence that defendant’s share of the profit of the joint underwriting account on these five bonds totaled $88,635.35.

Defendant contends that it was agreed between Jack Ranson and plaintiff that plaintiff would not receive buying commissions after he left defendant’s employ but such buying commissions would stay with the company after he left. Plaintiff denied any such agreement. Defendant also contends that any and all commissions, whether on buying or selling, were to be applied against the drawing account, and the $400.00 a month guarantee or guaranteed salary, and that in the twenty months of plaintiff’s employment he received a total of over $10,-000.00 from the company; that even. if plaintiff was entitled to his 10% commission on the $88,000.00 profit made by defendant on these five bond issues, his total commissions (both buying and selling) amounted to less than he had been paid and plaintiff would have nothing coming. As heretofore stated, plaintiff admitted the setoff arrangement on the $100.00 a month drawing account but denied that his commissions were to be applied against the $400.00 a month salary.

Defendant in its brief contends that the trial court erred in failing to direct a verdict for defendant and in giving instructions 2 and 3. None of the points in appellant’s brief conform to the requirements of Civil Rule 83.05, V.A.M.R. because they do not specify “why it is contended that the court was wrong”. Under point one of the brief defendant cites two cases for the proposition that “the burden of proof rests on the party having the affirmative of the issue and this is applicable to actions on contracts” and that “a pleader seeking affirmative relief * * * must produce evidence to support his claim”. Other than that, no authorities are cited in the brief. We will, however, do our best to consider such contentions as we can discover in the brief. Defendant first contends that a verdict should have been directed for defendant because plaintiff failed to plead a claim for relief and because he failed to prove a claim for relief. We will assume that this raises a question as to the sufficiency of the petition to state a cause of action and the sufficiency of the evidence to support the verdict of the jury. From a reading of the argument contained in the brief, it seems to be defendant’s contention that the petition is insufficient because it does not specifically plead the conclusion that plaintiff was entitled to his buyer’s commission after he had left defendant’s employment. We do not need to determine the sufficiency of the petition because this was the issue upon which both parties tried the case; they both adduced evidence on this issue and submitted it to the jury by the instructions. The parties stipulated to the admission of the settlement sheets showing the profit of defendant on each of the five bond issues, which were concluded after plaintiff left defendant’s employment. Most of the testimony of plaintiff and Jack Ranson for defendant went to this issue. Thus, even if we were to assume that the petition was insufficient, it would appear that the parties have, without objection, tried and submitted this issue and after judgment we will treat the petition as if it had been amended to conform to the proof and the theory upon which the case was tried. The evidence on this issue came in without objection and defendant can not now complain. See Harris v. Goggins, Mo., 374 S.W.2d 6; Evett v. Corbin, Mo., 305 S.W.2d 469. We therefore conclude that the trial court did not err in refusing to direct a verdict because of defects in the petition.

As to the sufficiency of the evidence to support the judgment, we must, on this appeal, view such evidence in the light most favorable to the plaintiff together with all reasonable inferences in his favor which may be drawn therefrom, and we must disregard defendant’s evidence except as it may help plaintiff. The evidence was conflicting and under such circumstances it was the function of the jury to resolve such conflict by deciding which witness to believe. This the jury has done and we will not disturb their verdict if it is supported by substantial evidence. We have heretofore set forth the evidence in some detail. From this the jury would be justified in finding that plaintiff was employed on the basis of a salary of $400.00 a month plus a drawing account of $100.00 a month; that plaintiff was to receive certain commissions on sales that he made and a commission of 10% of defendant’s net profits on bonds that he bought; that such commissions were to be set off only against the $100.00 drawing account and not against the $400.00 a month salary, and that plaintiff earned the buying commission when he initiated the projects and “bought” the bonds by the signing of the underwriting agreements. The jury could further find that there was no agreement to leave the buying commission with the company when plaintiff quit, but that he became entitled to such buying commission at the time of the signing of the underwriting agreement and that the payment was only deferred until the transaction was completed and the net profit could be ascertained. The jury could further find that having earned the commission, he did not lose it when he left the company; that defendant made a profit in excess of $88,000.00 on the five bond issues in question and that plaintiff was entitled to his buying commission of 10% of this amount. This would support the verdict for plaintiff in the sum of $8,800.00.

Defendant next complains that the trial court erred in giving instruction No. 2 because it “is too general and speculative and did not advise or guide the jury in the method or subject of its decision”. The instruction is modeled on MAI although no instruction applicable to this contract case is contained in MAI. It required the jury to find an employment contract between the parties, which plaintiff performed and which defendant failed to perform, which failure resulted in plaintiff not receiving commissions due him. Defendant complains that this instruction did not require the jury to find that plaintiff was entitled to his buying commissions after plaintiff left the employment of defendant. Defendant contends that the instruction allows the jury to speculate and permits the jury to rely upon their individual knowledge in reaching their verdict.

We do not hold this instruction out as a model to be followed in the future, but, even if we assume that, standing alone, it is defective, we must consider it together with the other instructions in the case. The court gave, at defendant’s request, instruction No. 4, which read, “Your verdict must be for defendant on plaintiff’s claim * * * if you believe that by the terms of plaintiff’s employment agreement with defendant plaintiff was not to be paid any commissions on buying transactions which were concluded after plaintiff left the employ of defendant”. The court also gave instruction No. 5 for defendant which read, “Your verdict must be for defendant on plaintiff’s claim * * * if you believe: First, that by the terms of plaintiff’s employment agreement with defendant, plaintiff was to be credited with commissions on buying transactions which were concluded after plaintiff left the employ of defendant, and, Second, that also by the terms of said agreement with defendant, such commissions would be applied against plaintiff’s drawing account and guaranteed salary paid to him, and Third, that all of plaintiff’s selling and buying commission credits did not exceed the total amount of plaintiff’s drawing account and guaranteed salary paid to him”.

It is basic that these instructions must all be read together, and that if when read together, they completely instruct the jury, are not confusing and do not permit the jury to arrive at its verdict through speculation or conjecture, then such instructions are proper even though one of such instructions, standing alone, may be defective. This is plainly set out in Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921, l.c. 926, where the court stated: “It was said by this court in Jenkins v. Missouri State Life Ins. Co., 334 Mo. 941, 947, 69 S.W.2d 666, 669: ‘However, all instructions must be read and construed together, and where, taken together, they do contain a complete exposition of the law and cover every phase of the case, a verdict obtained thereon will be sustained, although some of the instructions taken separately may be incomplete and open to criticism.’ ” See also Higgins v. Terminal Railroad Association of St. Louis, 362 Mo. 264, 241 S.W.2d 380; Perry v. Stockhoff Supply Co., Mo., 356 S.W.2d 92 and Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239.

In the present case defendant’s instructions No. 4 and 5 direct a verdict for defendant if the jury found either one of defendant’s contentions to be true. Thus even if plaintiff’s instruction No. 2 was defective, as claimed, such defect was remedied by No. 4 and 5, and when all the instructions were read together, the jury was completely instructed on all the issues in the case, was not left to its own devices or permitted to resort to speculation or conjecture in arriving at its verdict, and was in no manner confused. We therefore conclude that the trial court did not err in giving instruction No. 2.

Lastly, defendant contends that the trial court erred in giving instruction No. 3 (the, damage instruction) because “said instruction is too general and speculative in advising the jury it must award the plaintiff such sum it believes will fairly and justly compensate plaintiff”. The instruction reads as follows: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any commissions which you believe due him from defendant”.

While this instruction is not taken from MAI because no applicable instruction is found therein, it will be noted that it is a very close paraphrase of MAI Instruction No. 4.01. Defendant contends that the instruction should have been more specific, because the amount of commissions claimed was capable of a mathematically certain computation. It appears to be defendant’s contention that because a specific amount or limit was not contained in the instruction that such instruction allowed the jury a roving authority to arrive at its verdict through speculation. We can not agree. We believe that under Civil Rule 70.01 the instruction is proper. In any event, it does not constitute a misdirection. The only fault claimed is that it is too general. In such circumstances, the defendant can not complain of the instruction given, but if he believed a more specific instruction was desirable, it was his duty to submit such an instruction. In the absence of such a submission by defendant, there is no error. See Hay v. Ham, Mo.App., 364 S.W.2d 118 and Samuels v. Illinois Fire Ins. Co., Mo.App., 3S4 S.W.2d 352. In this case defendant did not submit a more specific damage instruction, and, therefore, can not complain of the instruction given, which is correct, although it is general.

Finding no error in the trial of this cause, the judgment below is affirmed.

BLAIR, J., concurs.

CROSS, P. J., not participating.


author: SPERRY, Commissioner. PER CURIAM:

text:
    James A. FERM, Plaintiff-Respondent, v. MILLER PONTIAC COMPANY, a corporation, Defendant-Appellant.
    No. 24431.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1966.
    Application to Transfer Denied Nov. 14, 1966.
    Donald L. Mason, Mason, Gant & Moran, Kansas City, for appellant.

      Thomas J. Allen, Kansas City, for respondent.
   SPERRY, Commissioner.

This is a suit for damages, based on fraud and deceit, failure to deliver title, in the sale of an automobile to plaintiff by defendant. Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $2050.27 for actual damages, and for punitive damages in the sum of $3000.00. Defendant appealed.

Plaintiff’s petition is denominated: “Petition for Damages for Fraud, Failure to Deliver Title”. He pleaded, in part, as follows:

“3. That defendant, its agents, servants or employees, wilfully, fraudulently, falsely and maliciously represented to plaintiff either expressly or by implication that defendant was the owner of said automobile and had good title thereto, when in truth and in fact defendant did not own said automobile or have a title thereto”.

He further pleaded that plaintiff, relying upon such representations, paid to defendant $695.00 by trade and in cash, and executed his note to Associated Discount Corporation in the sum of $2653.00, upon which note plaintiff paid a total sum of $1355.27, making a total sum paid on the agreed purchase price of $2050.27. He prayed judgment for that sum, and for punitive damages in the sum of $5000.00.

At the conclusion of plaintiff’s evidence defendant moved for directed verdict, which was denied. It refused to offer any evidence. We will accept as true all of plaintiff’s evidence and draw from it every reasonable inference which tends to support his right to recover. Meyer v. Brown, 312 S.W.2d 158, 160 (Mo.App.).

Defendant filed answer wherein the sale of the automobile to plaintiff for the sum of $2695.00, the down payment by him of $695.00, and his execution of a note and chattel mortgage in the sum of $2653.50 were admitted. Defendant states the facts in evidence as follows: In the period between June 12, 1962 and June 19, 1962, plaintiff visited the used car lot of defendant and viewed a used 1960 Pontiac Bonneville Convertible, which he was desirous of purchasing. On June 19, 1962, plaintiff returned, the second time, to the defendant’s place of business and agreed with defendant’s salesman as to the particulars concerning the transaction. Plaintiff and defendant’s salesman agreed as to the purchase price of the automobile, and the trade-in value of a 1951 Cadillac and a 1953 Ford, which plaintiff turned over to defendant and which constituted a portion of the down payment on the car which plaintiff was purchasing. It was also agreed by plaintiff and defendant’s salesman, on June 19, 1962, that the balance of the down payment, in the amount of $200.00, would be paid $100.-00 on June 23, 1962, and $100.00 on June 30, 1962. It was further agreed by them that defendant would deliver title to the purchased motor vehicle as soon as plaintiff paid the balance of the down payment in cash. On June 19, 1962, plaintiff turned over possession of the two trade-in automobiles to defendant, took possession of the used car which he was purchasing, and received a copy of the purchase order.

On June 23, 1962, and again on June 30, 1962, plaintiff remitted to defendant $100.00 cash payments which, together, constituted the balance of the down payment, and said cash payments were receipted. On making the last portion of the down payment, on June 30, 1962, plaintiff requested the title and was advised that it would be processed and forwarded to him.

On July 9, 1962, plaintiff received a registered mail envelope from defendant, which envelope contained an Application for Title to the purchased automobile and a copy of the invoice, but not the assigned title. About a month later, plaintiff returned to defendant’s car lot and talked with Earl Miller (who was an agent of defendant) and advised him that he had not received the assigned title to the purchased automobile, but only the application for title. In addition, plaintiff contacted defendant, both personally and by telephone, and complained about not having received title and requesting that the title be furnished to him. On some of these occasions he was told by Earl Miller and the secretaries in the office that the title had been mailed to him. Plaintiff never received the title.

Plaintiff kept the purchased automobile and continued to drive it for about six months. He then parked it and did not thereafter drive it. Plaintiff continued to make the monthly payments on the car to the finance company, who had purchased the note and mortgage from defendant, until and including May, 1963, when he notified both defendant and the finance company that he would make no further payments until he received title. In August, 1963, plaintiff still had possession of the involved automobile when it was replevined by the finance company by reason of plaintiff’s refusal to make further monthly payments.

Plaintiff’s evidence also disclosed that a representation was made to him by defendant through its salesman, on the lot, that defendant owned the 1960 Pontiac, and that plaintiff, relying on that representation, later purchased the car; that, later, Miller stated that defendant had no title, and that it would have to be processed through the finance company; that the person signing the certificate of vendor was C. J. Mecum, the secretary who handled the matter for Miller, and who, later, was unavailable for her testimony concerning the matter; that she had disappeared; that Miller sold the note to Associated Discount Corporation the same day as the sale.

Plaintiff’s main instruction (MAI 23.05) required the jury to find:

“First, Defendant represented to plaintiff that defendant had good and mer-chantible title to the automobile in question, intending that plaintiff rely upon such representation in purchasing the motor vehicle, and
“Second, the representation was false, and
“Third, Defendant knew or should have known said representation was false, and
“Fourth, the representation was material to the purchase by plaintiff, of the motor vehicle, and
“Fifth, plaintiff relied upon the representation in making the purchase, and
"Sixth, As a direct result of such representation, the plaintiff was damaged”.

This instruction is not criticized by defendant, at whose request its converse was given by the court. Meyer v. Brown, supra.

The jury found the facts required to be found under the instruction. Plaintiff testified to the effect that defendant’s salesman, Sturges, represented to him that defendant had title to the automobile which he showed and priced to him, and which plaintiff agreed to purchase. Plaintiff went to the regular place of business of a dealer in automobiles where he told defendant’s salesman that he wanted to buy a used car. He was shown the car that he bought. He inspected it twice before signing a contract to buy, wherein the terms of the purchase were stated. He was told that, when the down payment was finally made and notes for the balance of payment executed, he would be given title to the car. Both parties had in mind the Missouri Statutory certificate of title. He was thereby led to believe that defendant owned the car and had title to it. It was tantamount to a direct statement to that effect. Defendant’s salesman knew that defendant had no title and failed to so inform plaintiff. Feeney v. Cook, 242 S.W.2d 524, 529 (Mo.). It is unlawful in Missouri to sell a Missouri registered car for which one has no Missouri title; and such title must, by law, be assigned and delivered to the purchaser at the time the sale is made. Sec. 301.210 RSMo 1959. Later, when the contract was completed, plaintiff was told that the title would have to be processed and would be mailed to him. He was finally told that defendant had no title but that it must be processed through the finance company. Finally, he received through the mail in lieu of a title, an application for title, together with a statement of the terms of the sales contract. This paper was worthless to plaintiff, he being unable to get insurance or a license to operate the car. He, therefore, garaged the car. In the meantime, he kept asking for a title and received none. Eventually, after having paid a total of $2050.27, he ceased making payments and told defendant that he would make no more until he received title. The finance company, to whom defendant had sold the note and mortgage, replevined the car. Thereby, plaintiff lost every penny that he had invested in it. This cause of action accrued when plaintiff completed his down payment on an automobile for which defendant knew it had no title. He could have sued at that time and would have been entitled to recover for the amount paid down, plus punitive damages. Defendant and its agents well knew that defendant had no title to the car, from the very first day that it offered to sell it to plaintiff. Its conduct amounted to fraudulent and intentional concealment ■of a known and material fact which, if it had been made known to plaintiff would have prevented his being victimized.-

Defendant urges here, as it did below in a motion to require election of remedies, that plaintiff is seeking a return of money paid but has failed to tender back the automobile as a condition precedent to his right of rescission. Plaintiff does not seek rescission. He sued in fraud and deceit. He sought punitive damages in addition to actual damages. This case is in no -wise similar, on its facts, to that of Riss & Co. Inc., v. Wallace, 239 Mo.App. 979, 195 S.W.2d 881, cited and relied on by defendant. There, the parties made a written contract for one to sell and the other to buy certain trucks, the final sale actually to take place in the future, at which time the certificates of title were to be delivered to the buyer. Here, the evidence is that plaintiff agreed to buy and defendant agreed to deliver certificate of title at the time the final down payment was made. While plaintiff prayed for actual damages in the amount he paid on the purchase price of the car, (although he may have been entitled to more), he pleaded, proved and submitted a cause of action based on fraudulent misrepresentation.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.


author: CLEMENS, Commissioner. PER CURIAM.

text:
    TOM HOULIHAN MEN’S WEAR, a Corporation, Plaintiff-Respondent, v. John WILKERSON, Defendant, American National Insurance Company, a Corporation, Garnishee Defendant-Appellant.
    No. 32266.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Hocker, Goodwin & MacGreevy and Edward K. Fehlig, St. Louis, for appellant.
    Arthur Litz, St. Louis, for respondent.
   CLEMENS, Commissioner.

This is a garnishment action against the defendant’s employer in aid of execution. The decisive issue is whether the employer is liable as garnishee when it had already paid its employee more money, than he had earned. The trial court gave plaintiff a judgment against the employer-garnishee, and it appeals. The case was tried without a jury on these stipulated facts:

The plaintiff had gotten a $150 consent judgment on its account against defendant John Wilkerson, who worked as an insurance salesman for the garnishee on a commission basis. For some time the garnishee had been advancing Wilkerson $100 a week as a drawing account against future earned commissions. At the time plaintiff summoned the garnishee, Wilkerson was overdrawn by more than $4,500, and the garnishee immediately stopped paying him. By its answer the garnishee had stated that “all commissions and other compensation of any sort is presently being credited” to the overdraw. (This stipulation is unexplained. It implies that the defendant would later become entitled to commissions on money the garnishee received from time to time, but that these commissions would be retained by the garnishee and applied to reduce the defendant’s overdraw account.) Shortly after the garnishment proceeding began, the defendant was adjudged bankrupt.

Since the case was tried without a jury and was submitted on stipulated facts, our duty on appeal is to consider the case on the law and the stipulated facts, and to reach the result the trial court should have reached. Civil Rule 73.01(d), V.A.M.R.; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678[1]; Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628[1].

The garnishee now claims error in the adverse judgment. First, it reasons that since it was not indebted to Wilkerson, it was not liable to the plaintiff in garnishment.

Garnishment in aid of execution is an incidental remedy whereby a plaintiff seeks to collect a judgment by reaching the defendant’s property in the hands of a third party. Nacy v. Le Page, 341 Mo. 1039, 111 S.W.2d 25[5], 114 A.L.R. 259; 38 C.J.S. Garnishment § 1; §§ 525.010 and 525.040, V.A.M.S.

In applying this remedy, courts have established a general rule that the liability of a garnishee is measured by its liability to the defendant. Thus, if the garnishee owes the defendant nothing, then (if there is no fraud or collusion) the garnishee is not liable to the defendant’s creditor. See Stevenson v. McFarland, 162 Mo. 159, 62 S.W. 695; Spengler v. Kaufman, 46 Mo.App. 644; and cases collected in 14 Mo.Digest, Garnishment, @==13 and 105. The rule applies to an employer who is not indebted to its employee. Weiner v. Shredded Steel Products, Inc., Mo.App., 334 S.W.2d 390[5]; Cusick v. Cusick, Mo.App., 201 S.W.2d 437[1]; and Sheridan v. Short, Mo.App, 237 S.W.2d 230(1).

The plaintiff concedes this rule but contends that this case fits established exceptions. Plaintiff cites two cases to fix liability on the garnishee: In Bambrick v. Bambrick Bros. Const. Co, 152 Mo.App. 69, 132 S.W. 322 and 140 S.W. 1193, the court upheld the sufficiency of plaintiff’s pleading where she alleged that after garnishment was served, the employer-garnishee began paying the defendant-employee’s salary in advance for the purpose of defrauding the plaintiff. In Ralston Purina Co. v. King, Mo.App, 101 S.W.2d 734, the defendant-debtor was president of the garnishee-corporation. He owed the garnishee money on a large account, but despite this debt he had continued to draw his salary regularly. After the garnishment was served, the defendant stopped drawing his salary but continued to draw its equivalent in salable merchandise. Those two cases stand in marked contrast to the case before us. Here, it is stipulated that upon service of the garnishment, the garnishee immediately discontinued payments to the defendant. And here, fraud or collusion is neither pleaded nor proved, nor implied in the briefs.

This case does not fit the cited exceptions, and the general rule applies. Since the garnishee owed the defendant nothing, it is not liable to the plaintiff. The judgment should have been in favor of the garnishee.

Further, the garnishee argues that the trial court erred by failing to sustain its objection that jurisdiction over plaintiff’s assets had passed to the bankruptcy court. The result we have reached relieves us from ruling the point.

The judgment against the garnishee must be reversed.

PER CURIAM.

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

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


text:
    Mr. and Mrs. Robert SCHOTT, d/b/a Builders and Industrial Supply Company, a Corporation, Plaintiffs-Respondents, v. Ken BRUCE, Defendant-Appellant.
    No. 32280.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.

      Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for defendant-appellant.
    Steiner & Fenlon, Clayton, for plaintiffs-respondents.
   BRADY, Commissioner.

This case comes to the writer upon reassignment. It began as a suit upon an account arising out of a transaction between these parties involving some garage doors, kitchen cabinets, and range hoods plaintiffs allege they sold and delivered to the defendant. A jury being waived, trial was had with a judgment for the plaintiffs. The defendant has perfected his timely appeal. The transaction out of which this controversy arose occurred prior to the effective date of the adoption of the Uniform Commercial Code in this State, (see RSMo 1959, 400.1-101 to 400.10-102, V.A.M.S.) and was tried without regard to the possible application of the provisions of that code.

We review non-jury cases as we do suits in equity, giving due regard to the trial court’s opportunity to judge credibility of the witnesses and allowing the judgment to stand unless it is clearly erroneous, but we make independent findings of fact and reach our own conclusions upon the weight of the evidence. We are to enter or direct the entry of such judgment as justice requires. Jones v. Des Moines and Mississippi .River Levee District No. 1, Mo.App., 369 S.W.2d 865.

The defendant, a builder, was constructing houses in a subdivision near High Ridge, Missouri. He purchased six garage doors, seven sets of cabinets, and some range hoods from the plaintiffs. With respect to the cabinets and range hoods, the contract consisted of a diagram of the kitchen to be constructed in the houses with notations of the dimensions of the range hoods and the dimensions and stock number references to the cabinets stated thereon. Also noted thereon were the words “total installed” which appeared directly opposite the total price quoted. The plaintiffs’ evidence was that the cabinets and range hood for the house on Lot 16 were delivered to that house and placed therein. Their evidence also was that the cabinets were not installed at defendant’s request as he wanted time to allow a wall to be moved. The defendant’s evidence was that these cabinets were never delivered except for one piece which was placed with the cabinets for another house, and that there was no request nor reason for delay in installation. There is no explanation in the evidence as to the house for which the other range hood was intended or as to the cause of its disappearance. There is no dispute, however, as to two range hoods being missing or as to the accuracy of the item of $56.10 representing two range hoods as stated in plaintiffs’ account.

With respect to the garage doors, the order stated “w/installations”. These doors were unvarnished and unpainted, and they were to be hung by the plaintiffs’ subcontractor, after which they were to be painted and finished by the defendant. The plaintiffs’ evidence was that their deliveryman unloaded the doors and placed them inside a building out of the weather. The defendant’s evidence was that these doors were unloaded out in the open spread over an area of approximately forty square feet. After they were delivered, the defendant made no effort to protect the garage doors from the weather. The plaintiffs’ evidence also was that the defendant requested that installation be delayed until some cement was poured and because three of the six houses involved weren’t quite ready for the installation although the other three were. Defendant’s evidence was that he demanded several times that plaintiffs hang the doors and was assured that they would be hung in a few days. He denied the three houses were not ready although his carpenter foreman admitted the three were not ready on the day the doors were delivered, but stated they were ready soon after that, and that the plaintiffs thereafter repeatedly refused to install these doors. Between the date of delivery and the time the doors were hung the cardboard cartons containing the doors fell apart because of the rain and snow and the doors swelled, became discolored, cracked, rough, and unusable. They had to be re-sanded and refinished before they could be painted. Plaintiffs’ subcontractor billed the plaintiffs for five door installations, and the evidence of their salesman was that these five were actually installed by the subcontractor. A credit on plaintiffs’ statement of account was given the defendant for the installation of one door. Defendant’s evidence was that the installation subcontractor installed only four doors and that he had to install two of the doors. Plaintiffs also furnished three low headroom kits and there was a dispute in the testimony as to whether or not these kits were actually necessary to install the doors and whether they were actually used. Defendant’s carpenter foreman testified the kits were not used and were never delivered. Four of the doors were paid for but two of them were not paid for as they were in such bad condition that even after defendant re-sanded and refinished them he had to give a purchaser of one of the houses on which such a door was installed a credit of $110.00. He arrived at this sum by adding the cost of the door, $75.00, to the cost of painting, $20.00, and to the cost of taking it down so that the painting could be done, $15.00. His evidence also was that it cost $37.50 to hang the garage door for which he was given no credit by plaintiffs.

The plaintiffs’ petition alleged that the total amount due from the defendant was $622.99. From the evidence it appears that this amount is computed as follows: $492.51 for kitchen cabinets; $56.10 for two range hoods; $156.00 for two garage doors for which the defendant refused to pay on the grounds that they had been allowed to lie out in the weather; and $24.48 for three “overhead door kits”. Against this total $25.00 was allowed as a credit due to non-installation of cabinets on Lot 16; a $15.00 credit arises from an item that was never explained in the evidence; and a $66.10 credit arises from other services about which there is no dispute. In addition to his answer, the defendant filed a counterclaim alleging that plaintiffs had wrongfully delayed their work of installation of the garage doors and to promptly “perform other work” to the defendant’s damage in the amount of $750.00; and that, due to plaintiffs’ non-performance, defendant had to secure and pay additional help to perform work which the plaintiffs were required under the contract to do.

We will first deal with the plaintiffs’ cause of action. The plaintiffs tried', this case and have submitted it to this, court upon the theory that the issue is. whether title had passed to the defendant.. As stated in their brief, their position was and is that “Respondent fully performed when the merchandise was delivered to Appellant.” In view of the nature of the plaintiffs’ action; i. e., an action upon an account whereby they seek payment for items they allege they sold the defendant, the issue of title would not seem determinative. (That would certainly be true had this case been governed by the Uniform Commercial Code. Section 400.2-709 RSMo 1959, V.A.M.S. refers to actions for the price of goods and as Note 1 of the Uniform Commercial Code Comment states, the passing of title is immaterial to a price action.) The determinative issue is not one of sale but a question of contractual compliance; that is, whether the plaintiffs had substantially performed the obligations of their contract and thus be entitled to payment. However, as shown by the quotation from American Jurisprudence appearing later herein, the question of what is here involved may only be an exercise in semantics, the decisive issue being the same regardless of its nomenclature.

As stated in 46 Am.Jur., Sales, § 412, p. 584: “There is a material distinction between an executed and an executory contract of sale in respect of the passing of title to the property from the seller to the buyer. In the case of an executed contract of sale, the title passes, ordinarily, at the time of the transaction, in the absence of any provision to the contrary. In the case of an executory contract of sale, the title does not pass, ordinarily, until the consummation of the transaction by performance of the terms and conditions of the contract to sell. Stated affirmatively, the title passes to the buyer when the contract becomes executed, in the absence of any intention to the contrary. ” (Emphasis supplied.)

The emphasized portion of the above quotation illustrates the fundamental flaw in plaintiffs’ position throughout this controversy. Plaintiffs have always admitted that they were obligated for installation of the items here involved and yet have ignored the fact that this admission makes clear that we are here dealing with an executory contract. The plaintiffs still had an act to perform under the contract. That being so, the title did not pass to the defendant upon delivery of these items to the subdivision as plaintiffs contend, but would pass when the contract became executed; i .e., when the items were installed so that the only act remaining to be performed under the contract was payment according to the terms thereof. It is likewise obvious that until that point was reached the defendant had no duty to pay for these items. It follows then that whether we approach the issue from the standpoint of passage of title or from that of contractual compliance, the result is the same. Title did not pass and neither did the obligation of the defendant to pay arise because the plaintiffs have not fully performed their obligations under the contract.

Perhaps realizing the weakness of their position, the plaintiffs devote a large portion of their brief to the contention that certain acts of the defendant excused the nonperformance of their duty to install. The plaintiffs’ argument proceeds in this fashion. With respect to the cabinets and range hoods, they contend we must accept their testimony that a wall of the house on Lot 16 was to be moved delaying installation and, with respect to the garage doors, that installation had to be delayed to allow the defendant to pour concrete. Since the garage doors, cabinets, and range hoods were, as plaintiffs put it, “under the exclusive and complete control” of defendant, they argue that the fact the items were not to be found when, even under plaintiffs’ evidence and theory time came for installation, excuses their failure to install and thus they are to be considered as having fully performed. As stated earlier, we make our own independent findings of fact, but even if we were to agree with plaintiffs’ statement, we could not accept such a theory. It is based on the same false premise which is basic to plaintiffs’ entire position in this case; i. e., that plaintiffs’ responsibilities as to these items ceased upon delivery of them to the subdivision. As we have stated earlier, even under plaintiffs’ own theory of “title” these items still belonged to the plaintiffs. Absent special conditions of the agreement, or evidence of some other nature showing the defendant had or assumed the duty of caring for these articles after their delivery to the subdivision (neither of which is claimed by the plaintiffs to be present in this case), the plaintiffs cannot set up as an excuse for their own non-performance the failure of the defendant to care for items belonging not to him but to the plaintiffs. This is especially true in the instant case where such a theory of excused non-performance would in fact be at war with the plaintiffs’ basic theory that they had fully performed upon delivery and that these items belonged to the defendant after that occurrence.

With respect to the three headroom kits, the testimony offered by the plaintiffs was that they were told by their subcontractor that they were needed. The defendant’s testimony was that the headroom kits were not needed and not ordered by him. While we are to defer to the findings of the trial court when the credibility of witnesses is involved, we need not so defer in this instance. This is not a matter of direct contradiction between the testimony given by different witnesses but goes instead to whether there was in fact substantial testimony to support this item in plaintiffs’ stated account. It should first be noted that the defendant’s testimony was direct and made upon firsthand knowledge whereas the plaintiffs’ testimony, while no objection was made, was based solely upon what someone had told the plaintiffs. Even if we were to disregard this obvious difference between the quality of the plaintiffs’ and of the defendant’s evidence, the defendant still cannot be held financially responsible for the cost of these kits. Defendant’s agreement with plaintiffs was for garage doors at a stated price which included installation. Such additional materials as these kits were never within the contemplation of the parties at the time the agreement between them was made. This is made clear by the fact that the agreement is silent as to such matters and by the testimony of the plaintiff, Robert Schott, that he specifically called the defendant about the necessity for headroom kits and was told that they would not be necessary. There is no evidence the defendant ever, in any way, agreed to or even knew of the order for these kits. In addition, it should be noted that the defendant’s evidence was that the kits were never used and never even delivered, and that there is no testimony from the plaintiffs to the contrary. Under these facts the defendant cannot be held financially responsible for the cost of these kits which he never ordered, the use of which he never authorized, and which, in fact, were ordered by the plaintiffs’ subcontractor.

With respect to the garage doors, an item totaling $156.00 in the plaintiffs’ account, the evidence is that these doors were actually used. If that were not the case, the defendant would not be obligated for their cost until the plaintiffs complied with the terms of the contract and installed them. Having used the doors the defendant is obligated for their cost less whatever expenses he incurred in undertaking plaintiffs’ obligation to install the doors. There were six doors ordered and the plaintiffs’ evidence was that their subcontractor installed five of them. The defendant’s evidence was that only four of the doors were installed and that he had to install two of them. The testimony of the parties is diametrically opposed and thus presents a situation where we should defer to the finding of the trial judge who had a superior opportunity to judge the credibility of the witnesses. Accordingly, we will accept, as did the trial court, the plaintiffs’ version of this disputed issue and, since the plaintiffs’ evidence also was that the defendant was granted credit for the sixth door which their subcontractor did not install, award the plaintiffs judgment for the $156.00 item representing these garage doors as set out in their statement of account.

We pass now to the defendant’s counterclaim which alleged two items of damage to the defendant. The first of these is that allegedly resulting from the plaintiffs’ wrongful delay in installation. We will cast aside the fact that our credulity, as was that of the trial court, is somewhat strained by the defendant’s evidence that he granted a credit of $110.00 due to the appearance of one of these garage doors which cost $78.00 or $75.00 new, and which he testified had been re-sanded, refinished and re-painted. The issue is whether or not the plaintiffs were guilty of wrongful delay in installation and upon that issue the testimony of the parties is diametrically opposed. Again it is a situation calling for the application of the rule of deference. The trial court accepted the plaintiffs’ version with regard to any delay that was caused in the installation of these doors and we will not disturb that finding.

The second element of the defendant’s counterclaim was his allegation that he was forced to expend additional monies for help to perform work which the plaintiffs were obligated under the contract to perform. We are again back to the garage doors and what we have said earlier herein when considering the item in the account represented by the garage doors from the standpoint of the plaintiffs’ cause of action is equally applicable to this allegation of the counterclaim and compels disposition of it adversely to the defendant.

The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the plaintiffs and against the defendant on the defendant’s counterclaim and in favor of the plaintiffs and against the defendant on plaintiffs’ petition in the amount of $156.-00.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. Accordingly, judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the plaintiffs and against the defendant on the defendant’s counterclaim and in favor of the plaintiffs and against the defendant on plaintiffs’ petition in the amount of $156.00.

ANDERSON, Acting P. J., RUDDY, J., and LACKLAND H. BLOOM, Special Judge, concur.


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Russell G. DETERT and Frances C. Detert and Katharine Detert Fitch and James E. Fitch, Plaintiffs-Respondents, v. Fred J. LEFMAN and Lorene M. Lefman, Defendants-Appellants.
    No. 24504.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1966.
    Application to Transfer Denied Nov. 14, 1966.

      W. R. Schelp, Ike Skelton, Jr., Lexington, for appellants, Skelton & Bradley, Lexington, of counsel.
    H. Townsend Hader, Lexington, for respondents, D. W. Sherman, Jr., Lexington, of counsel.
   MAUGHMER, Commissioner.

Plaintiffs sought a mandatory and permanent injunction, (1) requiring defendants to remove an obstruction from a driveway; (2) forbidding any future obstruction thereon; and (3) a judicial determination declaring the roadway to be a common driveway. Plaintiffs prevailed in all respects and defendants have appealed.

Plaintiffs, Russell G. Detert and Frances C. Detert, husband and wife, and James E. Fitch and Katharine Detert Fitch, husband and wife, are the owners of Lot 5, Block Q in Chamblin’s Addition to the City of Higginsville, Lafayette County, Missouri. The defendants Fred J. and Lorene M. Lef-man, husband and wife, own Lot 4, which adjoins Lot 5 on the north. The driveway in question runs east and west, is 7 feet wide, approximately 80 feet long, and lies partly on both lots, but mostly on defendants’ lot. A residence has been built on each property.

Mr. Arthur H. Fieth, who is now a bookkeeper and office manager for a drug store in Lincoln, Nebraska, testified. He lived in what is now the Lefman house from January, 1926 until May 30, 1939. The adjoining Detert property was then occupied by the August F. Detert family. Mr. and Mrs. August F. Detert were the parents of the present Detert plaintiffs. He said he bought this property “from the Grau Estate”. However, the deed was to his father, with whom the witness had a contract to purchase. This witness testified that in 1930 or 1931, a driveway was built between his home and the Detert home; “that it was put there in order to get in and out of the place, and Mr. Detert built a garage — was planning on building a garage, so he could get in and out of that garage,, and I was also planning on building a garage adjacent to his, which I never did * * * He said the driveway consisted of two strips or two ribbons of concrete and. was built as planned, “partially on the De-tert property and one strip on my property”, “I paid for the part on my property and he paid for the other”. The strip on the Fieth — now Lefman property — was wider than the other strip because it was to be used partly as a sidewalk. The witness said Mr. Detert then built a garage and used the driveway. Although Mr. Fieth did not build a garage, he did use the driveway and parked his car “beyond the end of the driveway”. Both used the driveway all the time Fieth lived there, that is, until May 30, 1939.

Mr. Harry Dean Wright, tenant in the Lefman house from about 1943 until 1952, used the driveway and parked his automobile at the back end of it. He said Mr. and Mrs. Detert also used the driveway during this whole period.

Emma Mae Davenport, a secretary, has occupied as tenant, an upstairs apartment in the Detert house since 1952. She owned an automobile and used the garage from 1952 until 1958, when she disposed of her car. She said that a carport had been built on the back part of the Lefman house and the tenant in that house, a Mr. Wagner, used the driveway to get to the carport. Mrs. Davenport said that about April 8, 1964 “stakes were put in the driveway” which restrained use of it.

Daisy G. Newman, secretary to the Board of Education, Higginsville, has occupied the Detert downstairs apartment since 1958. She owns an automobile and parked it in the garage at the end of the driveway until April, 1964, when she found stakes driven into the ground across the driveway, which prevented her use of and denied her access to the garage. One of the plaintiffs, Katharine Detert Fitch, as a child, lived in the Detert home from 1919 until her marriage in 1933. She knew that the tenants in both properties had used the driveway for many years and recalled it was built about 1931.

The defendant, Fred J. Lefman, called by plaintiffs, admitted blocking the driveway with “three stakes” which he put in on April 8 and which he removed on April 24, 1964. On cross-examination he said all of the driveway except about 7 inches was on his ' property and that whatever use the Detert tenants made of it was by his permission and not as a matter of right. He was permitted to recite conversations which he said he had with August F. Detert (who was deceased at the time of the trial) and with the plaintiff James E. Fitch in 1953. He said August F. Detert sought and he gave permission for the Detert tenants to use the driveway. He said James E. Fitch asked and demanded an “easement”, which he refused to give him.

James E. Fitch, plaintiff, described a conversation he had with Fred J. Lefman in front of a drug store in Higginsville. He said his tenant, Mrs. Davenport, was not using the Detert garage at the time and he gave Lefman permission to use it, but specifically retained the right to resume the use for his tenants when they needed it. He recalled a second conversation in 1963, in which he said he told Lefman: “We had an easement because of common usage over many years”. Lefman’s tenants at that time were using the garage and Fitch wanted it for his tenants. He said Mr. Lefman asked “for two weeks to think it over”. When the two weeks ended, Lefman refused to vacate.

The defendants offered and there was received in evidence the Lafayette County Circuit Court records in Case No. 8660, styled “Russell G. and Katharine Detert Fitch, plaintiffs, vs. Fred J. and Lorene M. Lefman, defendants”, including the pleadings and the judgment entry therein. Defendants offered nothing further except as their defense was developed by the cross-examination of the defendant Fred J. Lef-man, who was called by plaintiffs. Examination of Cause No. 8660, as it appears in the transcript of the case before us shows that the petition was filed May 28, 1963 and the case was tried on October 31, 1963. The petition alleged the existence and construction of the roadway and garage involved in our suit, that defendants had used plaintiffs’ garage and owed rental therefor in the sum of $115, and plaintiffs had received notice from defendants that they could not use the driveway after June 1, 1963, and praying for an injunction “restraining defendants from interfering with the use of the driveway”. There was a general judgment for defendants, which included a recitation that defendants offered no evidence. There was a general finding for defendants and the prayer for injunction was denied. It is noted that in the memorandum opinion entered in connection with the judgment of the case before us the court commented as follows relative to the first case:

“The evidence in the first case disclosed that although there had been some dissatisfaction and conversations in regard to the use of the driveway and garage, actually there was no obstruction of the use of the driveway and the plaintiffs and their tenants had free and unlimited access and use of the driveway and garage up to the time of trial.”

On September 18, 1964, judgment and decree herein as follows was entered:

“JUDGMENT AND DECREE
“Now on this day this cause, having been previously heard and taken under advisement, is again taken up. The Court finds that the allegations in the plaintiffs’ petition are true and it is ordered, adjudged and decreed that a driveway seven (7) feet wide and running westerly eighty (80) feet from Shelby Street in the City of Higginsville, Lafayette County, Missouri and located between the houses owned by plaintiffs and defendants is declared to be a common driveway for the mutual use and benefit of the plaintiffs, the defendants, and their successors in title; and it appearing that the plaintiffs are entitled to the relief prayed for in their petition;
“It is therefore ordered and adjudged that the defendants and each of them, their agents and employees, and all persons claiming under them or acting under the direction or authority of them, or either of them, be and they are hereby perpetually enjoined and restrained from obstructing or interfering with the use of said driveway by plaintiffs or their successors in title”.

On the same day the court filed its memorandum opinion, which we set out in full:

“This is a suit to enjoin defendants from obstructing a driveway located between two houses owned by the parties.
“In about 1931 the predecessors in title of these two houses mutually agreed to build a driveway between the houses for the purpose of getting their automobiles to the back part of their respective lots and homes. Two concrete slabs were laid. Each party paid one-half of the cost of this permanent construction. The driveway was seven feet in width and was located mostly on the property now owned by defendants. A small part of the driveway was located on plaintiffs’ property. At about the same time the driveway was constructed or shortly thereafter the plaintiffs’ predecessor in title built a double garage on his lot just past the end of the concrete slabs of the driveway. This driveway was used continuously by owners and tenants until April 8, 1964, except for two short periods when the driveway was closed because of repairs to house and street. On April 8, 1964, defendants placed stakes in the driveway so that the plaintiffs and their tenants could not drive their automobiles on the driveway and into the garage.
“On May 28, 1963, a suit was filed in this Court, No. 8660, involving this same driveway. That case was heard on October 31, 1963, and judgment was rendered for the defendants.
“The evidence in the first case disclosed that although there had been some dissatisfaction and conversations in regard to the use of the driveway and garage, actually there was no obstruction of the use of the driveway and the plaintiffs and their tenants had free and unlimited access and use of the driveway and garage up to the time of trial. The cause of action on which the present case, No. 8849, is based, did not arise until April 8, 1964, about six months after the date of the first trial. Although it is true that res judicata applies not only to those issues of ultimate fact which were actually litigated but also to those which might have been litigated, it is plain in this case that one of the ultimate facts in this case, to-wit: whether or not defendants obstructed the driveway on April 8, 1964, was not, and could not have been litigated on October 31, 1963. Under those circumstances this Court rules that the plaintiffs in this case are not estopped by reason of res judicata.
“The facts in this case as outlined above are quite similar to those in Jacobs v. Brewster [354 Mo. 729], 190 SW2 894 and Judge v. Durham [Mo.App.], 281 SW 2 16. In accordance with the law as declared in those cases, this Court rules that the use of the land by plaintiffs was not by mere license subject to being revoked at will by defendants, but rather was a mutual, open, known and uninterrupted use of the way for more than ten years and resulted in reciprocal easements by prescription.”

Defendants on appeal make three assignments of error: They say the petition fails to state a cause of action because “the allegations of adverse user are not pled”. The case was tried on the issue of permissive or adverse use and the defense of res judicata. This point is without merit and is denied.

Appellants say the use made by plaintiffs was by virtue of a license and was a permissive, but not an adverse use and hence judgment should have been for ■defendants. We agree with defendants’ assertions that plaintiffs must sustain the burden of proof as to their prescriptive right, Seested et al. v. Applegate et al., Mo.App., 26 S.W.2d 796, and the mere permissive use cannot ripen into an easement. Anthony et al. v. Kennard Bldg. Co., 188 Mo. 704, 87 S.W. 921. We review the evidence and reach our own conclusions in this equity case, giving due deference, however, to the trial judge, who saw, heard and observed the witnesses, Sanderson et ux. v. Less et ux., Mo.Sup., 296 S.W.2d 81, 83.

The general rule on the main issues before us is stated in 28 C.J.S. Easements § 18, page 673:

“ * * * the weight of authority is to the effect that, where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land to that purpose, and the way or alley is used for the prescriptive period by the respective owners or their successors in title, neither can obstruct or close the part which is on his own land; and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to a separate and exclusive use by either party”.

This general rule was cited and approved by this court in Judge v. Durham et al., 281 S.W.2d 16, 21, a case involving a driveway jointly constructed and used for more than 10 years. The easement was upheld and the facts are analogous to those in the case before us.

In its memorandum opinion the trial court referred to the holding by the Supreme Court in Jacobs et ux. v. Brewster et al., 354 Mo. 729, 190 S.W.2d 894, 895. The subject matter, facts and judgment in that case are strikingly similar to those in the case before us. We quote from the opinion:

“The trial court found that in 1924 the plaintiffs and Ernest W. Lamy, the then owner of Mrs. Brewster’s lot, constructed a joint driveway and a joint garage on their adjoining lots, each paying one-half the cost and each contributing an approximately equal amount of space. The court found that from and after 1924 Mr. Lamy and Mrs. Brewster’s other predecessors in title had used the driveway for more than the ten year period prescribed by the statutes of limitation, all the while claiming the right to do so — to the plaintiffs’ knowledge — and, therefore the defendant had acquired and established an easement by prescription in that part of the plaintiffs’ strip of land occupied by the driveway.
* * * * * *
“There is another way of viewing the acts and conduct of the original adjoining owners which is indicative of their intention, initially. Each neighbor furnished an approximately equal amount of space. They built a concrete driveway and a stucco garage and each paid one-half of the expense. Both owners began using the driveway and the garage. Nothing more than the bare’facts of what they did appearing, there was an executed contract and such subsequent use of the improvements as the acts and conduct of the parties undoubtedly contemplated. And that use was certainly not permissive only but as of right. * * * ‘While the mere permissive use of a way over the land of another will not ripen into an easement, yet one who joins his adjacent landowner in the construction of a paved private way over and along the medial line has given such adjacent owner more than a mere license. Each owner, by use of the driveway, is continuously asserting an adverse right in the portion of the way on the other’s lot.’ Annotation, 98 A.L.R. loe. cit. 1100. The parties, by their conduct and mutual use of the way, indicate that they intend to create reciprocal easements”.

The judgment enjoined interference with the use of the driveway and it was affirmed on appeal.

We concur fully with the conclusion of the trial court that the evidence here shows use for more than ten years under claim of right, not under license, and resulted in establishing an easement by prescription. This being so, the judgment should be affirmed unless defendants’ plea of res judicata is meritorious and decisive.

Case No. 1, upon which defendants’ defense of res judicata is bottomed, prayed only for recovery of rent and injunctive relief. It was predicated upon a letter from an attorney purporting to advise that at a future date — June 1, 1963 — defendants would close the driveway to plaintiffs. In its memorandum opinion in speaking of Case No. 1, (the same trial judge heard both cases) the court said this:

“The evidence in the first case disclosed that although there had been some dissatisfaction and conversations in regard to the use of the driveway and garage, actually there was no obstruction of the use of the driveway and the plaintiffs and their tenants had free and unlimited access and use of the driveway and garage up to the time of trial”.

Cause No. 2 alleged actual closing of the driveway, asked that the barrier be ordered removed, future barrier erection be prohibited and declaration of an easement by prescription. We observe here that title to the real estate itself on which the driveway rests, was not involved in either suit although often in similar cases it is involved, and where it is, is held to make the difference between jurisdiction of this court and jurisdiction of the Supreme Court as involving title to real estate. Cramer v. Jenkins, Mo.Sup., 399 S.W.2d 15, and the mandate transferring this case to us from the Supreme Court, where the appeal originally was lodged.

This court in Whiteley v. Whiteley et al., 325 S.W.2d 502, 505, stated generally the requirements necessary to make properly applicable the doctrine of res judicata:

“In Case v. Sipes, 280 Mo. 110, 120, 217 S.W. 306, 309, the supreme court cited and quoted the following language from Southern Pacific R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 27, 42 L.Ed. 355;
‘The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and,. even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.’
“It is stated in State ex rel. Buchanan County v. Patton, 271 Mo. 554, 197 S.W. 353, 354, that the test of res judicata is whether there is an identity of issue; that a ‘former judgment is conclusive in a second suit between the same parties where the same legal right as that involved in the former suit comes again in issue, although the second suit is upon a different cause of action.’ (citing cases)”.

Appellants cite five cases which they say factually are authority for applying res judicata to the case before us. We shall refer briefly to those cases. Whiteley v. Whiteley, supra, was a second garnishment proceeding against an insurance company by a wife on her maintenance judgment against her husband. She had previously lost an identical garnishment, this one being different only in her allegation of fraud. The doctrine was applied.

Case et al. v. Sipes et al., 280 Mo. 110, 217 S.W. 306 is a suit in ejectment. The courts (trial and appellate) held merely that a decision in a prior ejectment suit involving the same parties and the same land, was res judicata as to the later suit. In State ex rel. Buchanan County v. Patton et al., 271 Mo. 554, 197 S.W. 353, the county first sued the circuit clerk for fees which he claimed he was entitled to retain. The clerk had the judgment and it became final. The county brought suit again, joining the surety on the clerk’s official bond. The first action was ruled to bar the second under the res judicata doctrine. Boggiano et al. v. Thielecke, Mo.App., 326 S.W.2d 386, involves attorney fees. Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, holds that a judgment for a piano tuner, who had lost part of his hand, for total disability indemnities under accident policy was res judicata of piano tuner’s disability in all actions for indemnities subsequently accruing under policy by reason of such disability. We are not in disagreement with any of these five cases. None of the five involves an injunction. We do not regard these cases as ruling our case.

The issuance of an injunction is a matter of discretion. Our statute, Section 526.010, V.A.M.S. says : “Injunction may be granted * * * We find the following statements in 43 C.J.S. Injunctions:

“Injunctive relief is not a matter of right, but its grant or refusal usually rests in the sound discretion of the court, ***”.§ 14, p. 420.
“While an injunction will be granted if irreparable injury is threatened and impending to the rights of complainant, injunction will not issue to allay the mere fears and apprehensions of individuals”. § 21, p. 435.
“A court of equity will not afford an injunction to prevent in the future that which in good faith has been discontinued in the absence of any evidence that the acts are likely to be repeated in the future”. § 22, p. 445.

The first suit for injunction brought by plaintiffs involved the same roadway and substantially the same parties. Plaintiffs in their petition filed on May 28, 1963, alleged that defendants’ attorney had informed them by letter that their driveway would be closed on June 1, 1963, by defendants in order to do some building thereon. The case was not tried until October 31, 1963. The driveway had never actually been closed. June 1, the day when plaintiffs were afraid it was to be closed, had passed; five more months had passed and apparently there had been not only no interference with use of the driveway, but no further threats of interference. Neither plaintiffs nor defendants asked for a decree quieting title, nor a judgment declaring or denying the existence of an easement by prescription. The trial court in the face of all these circumstances, denied the injunction. Since there had been no actual interference and no impending threat, the trial court exercised its discretion and refused to enjoin.

In Lademan et al. v. Lamb Const. Co. et al., Mo.App., 297 S.W. 187, it was held that an injunction restraining operation of a rock quarry in a residential area should not be granted where operation of the quarry had ceased and there was no impending threat to resume. Under the circumstances the denial of an injunction to restrain operation of the rock quarry surely would not in the future be construed as res judicata so as to prevent issuance of a later injunction restraining operation of the quarry, should its operation be resumed. That is about what did happen in the case before us. The first suit merely held that plaintiffs were not then entitled to an injunction. There was not a ruling that plaintiffs had no easement by prescription or that defendants had a right to block and close the driveway. Those issues were neither raised, considered nor adjudicated. We shall not hold that either party was required to present those issues in that proceeding. Therefore the judgment in the first action is not res judicata as to the present action. To rule that it was, would be holding that issues were there litigated, which were not litigated. The defendants present no additional assignments of error.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.