author: HOUSER, Commissioner.

text:
    Leonore BURCH, Respondent, v. MOORE’S SUPER MARKET, INC., Appellant.
    No. 51353.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Motion for Rehearing or to Modify or to Transfer to Court En Banc Denied Jan. 10, 1966.
    Roberts & Roberts, Farmington, by Raymond R. Roberts, Thomas A. Mathews, Farmington, for plaintiff-respondent.
    E. L. McClintock, Jr., Flat River, Leritz & Leritz, J. L. Leritz, J. D. Leritz, St. Louis, for defendant-appellant.
   HOUSER, Commissioner.

Action for $25,000 damages for personal injuries alleged to have been sustained when plaintiff fell on ice on the parking lot of a supermarket. A trial jury returned a verdict for the defendant store company. The trial judge set aside the verdict for error in giving Instruction No. 5 and for the reason that the verdict “is against the weight of the evidence.”

On this appeal defendant seeks to reverse the order granting a new trial, contending that plaintiff failed to make a submissible case; that its motion for a directed verdict at the close of the case should have been sustained, and therefore the granting of a new trial following the verdict for defendant was arbitrary and an abuse of discretion under the rule announced in Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 827. Defendant says plaintiff failed in three respects: (1) failure to prove actual or constructive notice to defendant of the presence of the patch of ice on the parking lot where plaintiff fell; (2) failure to prove a set of facts from which a duty arises to remove the danger or warn a business invitee, since the patch of ice where plaintiff fell was “open and obvious and could have been seen as readily by respondent as by appellant”; (3) that plaintiff was guilty of contributory negligence as a matter of law for failure to look where she was walking as she walked from the store to her automobile.

Defendant’s store faces north toward the street. The store entrance is at the northeast corner. North of the store building, between it and the street, there is a smooth blacktop asphalt parking area. On Thursday or Friday, December 7 or 8, 1961 a heavy snowstorm covered the parking lot and surrounding area with snow. On Saturday, December 9 defendant caused the snow to be pushed off the parking lot by means of a blade attached to a tractor. This will leave a certain amount of snow in the low spots but, according to defendant’s manager, traffic on that will “slosh it out.” It was normal procedure for the management of the store in inclement weather to inspect the parking lot and defendant’s manager testified that “if it needs attention, why, we see that it gets it.” It was defendant’s custom in case of ice and snow near the door of the store in the area where plaintiff’s car was parked to apply salt but defendant’s manager could not answer “yes or no” when asked whether he inspected the lot or put out salt or chat or anything on the driveway on December 12 or on any particular day. Plaintiff’s fall occurred on Tuesday, December 12 at 1 or 1:30 p. m. On December 11, two days after the lot had been “bladed,” witness Sutton drove past defendant’s store in the morning and in the afternoon and observed ice spots, some large and some small, located on the north side of the store building in the parking area between the street and the building. These patches were 1 to 2 feet in size. Some of them were 10 feet from the store entrance. Witness Sutton saw these spots again on December 12. At 8:30 or 9 a. m. on the day plaintiff fell witness Laird looked across the street from a drive-in where he was having coffee and observed some patches of ice on the parking lot north of the store building, between the building and the street. He testified that “a large area was covered where the accumulation had gathered between the highway and the parking area,” and that it “had sloshed up in rows” in “quite an area,” probably one fourth of the area in front of the building but mostly on the part farthest away from the building and nearest the street. He said there was a strip of it 10 or 12 feet wide running east and west, located possibly 10 or 15 feet north of the building. It was ice and it was plainly visible. On that same morning defendant’s manager parked his car behind the store building and walked along the east side of the building to the entrance at the northeast corner. He did not know whether he saw ice then.

Plaintiff, a 59-year-old woman, accompanied by a friend named Mrs. Dittmer, drove onto defendant’s premises to do some shopping and parked her automobile on defendant’s parking lot 8 or 10 feet from the entrance at the northeast corner of the store, facing the store. There was only one other automobile parked on the lot at that time. She was familiar with the lot, having been “in and out of there” numerous times, and knew that ordinarily the parking lot was smooth asphalt. The weather was cold. It was freezing at the time. Although it warmed up during the day the temperature did not get above freezing. The two women alighted from the automobile and walked to the store, entered and both of them bought groceries. Plaintiff testified that as she walked from the store entrance to the automobile she did not look where she was going; that she knew it had snowed and that there was snow and ice “in the neighborhood” but that as she stepped onto the parking lot she made no observation as to where she was stepping. After making her purchases plaintiff and Mrs. Dittmer walked from the store to the automobile, plaintiff carrying a large paper sack of groceries “up in her arms,” out in front of her. The groceries weighed 8 or 9 pounds. She walked to the left rear door of the 4-door vehicle and fell as she was reaching with her right hand for the door handle. After she fell she noticed an area of slick ice on the parking lot, 18 to 24 inches east of her automobile, variously estimated at between 12 and 20 inches in diameter. There was no snow and there were no marks on the ice spot in question. Plaintiff first observed this spot or patch of ice after she had fallen. Neither plaintiff nor Mrs. Dittmer had observed any ice or snow on the parking lot as they drove onto the lot, or as they walked to the store entrance, or as they returned from the store to the automobile. As plaintiff got out of the automobile and as she walked to the store she did not look where she was stepping. As she walked from the store entrance to the automobile she did not look where she was going. At no time, going from or returning to the automobile, did she look at the parking lot to observe its condition. Asked whether she could have seen the patch of ice if she had looked to the ground plaintiff answered, “Yes, if— I imagine if I’d of been walkin’ along lookin’ down I would of seen it.” She conceded that there was no obstruction to prevent her from seeing it; that it was clear daylight at the time.

Ten or fifteen minutes after the accident Laird returned to the scene. Much of the ice had been “beaten off” by automobiles but some of the spots of ice he had observed that morning were still there, and there was some snow piled up at the “ends” of the parking lot. The ice next to the roadway “had been pretty well beaten off.”

On the question of notice, was a submissible case made to show that the defendant had knowledge, actual or constructive, of the dangerous condition in time by the exercise of ordinary care to have remedied the condition before the occurrence of the injury? Defendant asserts that plaintiff failed to sustain the burden of proof resting upon her to establish “by substantial legal evidence when and under what circumstances the ice located where [she] fell occurred”; that there was no reliable testimony as to the temperature between Saturday, when the snow was bladed off the lot, and Tuesday, when plaintiff’s fall occurred; nothing to show whether the temperature in the meantime would have permitted the snow to melt and then to form ice; nothing to show that the temperature was below freezing during that period; nothing upon which the jury could base a finding as to when the spot of ice was formed and whether it had been present long enough to give defendant constructive notice. Defendant suggests that the ice could have formed as a result of spilling liquid on the lot, or from a radiator leak, or the drippings from the undercarriage of a parked car and that plaintiff’s evidence leaves the matter in the realm of guess and speculation.

Defendant further contends that the testimony of the witnesses Sutton and Laird is “entirely at odds,” “wholly inconsistent and at war,” with plaintiff’s testimony; that their versions of the facts are wholly at war with each other, and that their testimony is of no aid to plaintiff in proving her case. Plaintiff, however, did not testify that the snow and ice seen by Sutton and Laird was not there, but only that she did not observe it. We find no irreconcilable inconsistency.

In our judgment a submissible case of constructive notice was made. From the evidence we have recounted the jury could have found that defendant recognized the dangerous condition of the parking lot with spots of snow and ice on it, having in mind the admitted custom of defendant to salt icy spots; that defendant through its manager and vice-president knew that the process of pushing the snow off the parking lot would occasionally leave spots of snow in various low places, and that while the manager considered that this is ordinarily “sloshed out” by traffic, he did not know whether it would be “sloshed out” in freezing weather; knew or in the exercise of ordinary care could have known that it was freezing, not moderating, weather; that several clearly visible ice spots of from 1 to 2 feet in size existed at 8:30 or 9 a. m. on the day plaintiff fell, four or five hours prior to the event; that these dangerous spots were there on the previous day, but that defendant made no inspection of the conditions on the parking lot on the day in question prior to plaintiff’s injury, did not cause the icy spots to be salted, and took no other precautions to protect its business invitees from danger. From these facts it could reasonably be inferred that the icy spot on which plaintiff fell had existed on the parking lot for a sufficient length of time for defendant, in the exercise of ordinary care, to have known of its presence and to have salted it or otherwise removed it or warned plaintiff of the dangerous condition.

Appellant cites a number of cases in support of its position on the matter of notice, but their facts are so materially different from the instant facts that they do not constitute authority for their position. For instance, in State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99, the evidence left to speculation the question of the length of time the vegetable matter was upon the floor or how it got there. In Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648, there was no evidence as to how the box of sweet potatoes materialized on the floor or that it was there more than 10 or 15 minutes. In Richardson v. Safeway Stores, Inc., Mo.App., 379 S.W.2d 827, a customer stepped on a bone on the store floor and fell, but there was no evidence of the length of time it had been there or how it got there.

In the case now here for review we rule that it was a question of fact, not of law, whether this defendant should have anticipated, discovered and remedied the dangerous condition.

Defendant’s other contentions are that the dangerous- condition was open and obvious to plaintiff and that she was guilty of contributory negligence as a matter of law. Defendant proposes that there was no legal duty on defendant to warn plaintiff of the dangerous condition and that plaintiff cannot recover in any event because of her own negligence, under her admissions that she could plainly see the patch of ice; that there was nothing to hide its slippery appearance; that she did not see it before she fell; that she did not look at the parking lot to observe its condition but that if she had looked to the surface of the parking lot she would have seen the patch of ice.

On the questions of open and obvious condition and contributory negligence the court should not under these facts declare as a matter of law that the presence of the patch of ice was obvious or as well-known to plaintiff as to defendant or that plaintiff was guilty of contributory negligence. Viewing the evidence in the light most favorable to plaintiff and giving her the benefit of the favorable inferences to which she is entitled these are questions of fact for the jury.

Plaintiff testified that when she drove onto the lot at 1 or 1:30 p. m. she did not see any ice. While there was evidence that there was considerable ice and snow on the lot that morning at 8:30 or 9 a. m. there was evidence that later in the day, 10 or 15 minutes after plaintiff fell, most of it had been beaten off by automobile traffic. The jury could have found from the evidence that at the time plaintiff drove onto the lot at 1 or 1:30 p. m. there was little or no ice to see or, if the jury believed that some ice and snow were still there, could have found that the two women, intent on their shopping mission, simply failed to observe whatever accumulations of ice and snow remained. (Plaintiff testified “We were just talkin’ and I just drove in.”) Also, in view of the testimony that most of the accumulations were nearest the street (away from the building) the jury may have excused her failure to see the accumulations “sloshed up in rows” on that part of the lot nearest the street by reason of the fact that she parked her automobile nosed into the building and not near the street. The comparatively small size of the patch of ice on which she fell and its location adjacent to the left rear door of her automobile was such that a jury could rationalize that plaintiff was justified in not having seen it as she parked and went into the store. As far as plaintiff understood as she entered the store the situation was that the pavement was clear. Not having been conscious of the existence of ice as she came onto the parking lot and as she walked the 8 or 10 feet from her parked car to the entrance to the store — and having negotiated that short distance safely on arrival — she had no reason to anticipate the presence of ice on that route as she returned to her automobile. She had shopped at this store on prior occasions and was fully acquainted with the fact that the usual condition of the surface of the parking lot was smooth asphalt paving. From the foregoing the jury could have found that plaintiff was not negligent in not constantly watching her footsteps. As plaintiff left the store she was carrying a large, heavy paper sack of groceries, which she was supporting in her arms. The jury could reasonably have excused her admitted failure to “look down” and notice the small patch of ice because of the burden that she was carrying, the large shopping sack, which could have interfered with her ability to see the surface of the parking lot. It was while she was shifting this burden to her left arm in an attempt to open the automobile door with her right hand that she fell. Under all the circumstances we are of the opinion that whether the icy condition was so open and obvious as to excuse defendant from any duty in the matter was a jury question. Willis v. Rivermines I.G.A. Supermarket, Mo.App., 350 S.W.2d 437[3],

That plaintiff was guilty of contributory negligence as a matter of law should not be declared in a situation such as this unless the danger involved was “so obvious and glaring” that a reasonably prudent person would not use the facility. Evans v. Sears, Roebuck & Co., Mo.App., 104 S.W.2d 1035. Under the facts as analyzed in the preceding paragraph we cannot say as a matter of law that the dangerous condition resulting from the patch of ice in question was so obvious and glaring that a reasonably prudent person would not have used the parking lot in the manner in which plaintiff used it. Evans v. Sears, Roebuck & Co., supra; Daggs v. Patsos, Mo.App., 260 S.W.2d 794. There was no abuse of discretion in setting aside the jury verdict and granting a new trial for failure of plaintiff to make a submissi-ble case.

Appellant has not undertaken to defend Instruction No. 5, which the court found faulty, or to challenge the other reason the court gave for its action, namely, that the verdict is against the weight of the evidence, and it is not our function to volunteer for duty in this connection.

Respondent’s motion to dismiss the appeal for violation of the rules, considered, is overruled; the judgment is affirmed, and the cause is remanded for a new trial.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    In re ESTATE of Eugene A. FUSZ, Deceased, Louis J. Fusz, William C. Connett IV, and St. Louis Union Trust Company, Appellants.
    No. 51348.
    Supreme Court of Missouri, Division No. 1.
    Jan. 10, 1966.
    William C. Connett IV, Thomas C. Walsh, St. Louis, for appellants, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
    Frank E. Morris, amicus curiae, pro se, St. Louis, William E. Buckley, St. Louis, of counsel.
   HIGGINS, Commissioner.

Appellants, executors of the estate of Eugene A. Fusz, deceased, petitioned the Probate Court of St. Louis County, Missouri, for an order of partial distribution which would authorize and direct them to distribute certain estate income received by them during their administration to trustees of trust estates created by decedent’s will. The probate court denied the petition for the reason that the life beneficiaries under the will, rather than the trustees, were entitled to such income. The executors appealed to the Circuit Court of St. Louis County; that court denied the appeal, and the executors have now appealed to this court.

Appellants state that jurisdiction is in this court because they have in fact distributed $22,794.36 of estate income to the trustees of decedent’s trust estates; that the annual settlement in which they sought credit for that amount was not approved by the probate court; that denial of their petition for partial distribution in that amount will result in judgment against them for $22,794.36, and that such is thus the amount in controversy.

Our jurisdiction is in question here for a more fundamental reason than the amount in controversy. The right to appeal and whether an appellant is a party aggrieved within the meaning of Sections 472.-160 and 512.020, V.A.M.S., are jurisdictional questions which may be raised at any time and by the court itself, Love v. White, 348 Mo. 640, 154 S.W.2d 759, 760[1]; and “The great weight of authority is to the effect that an executor or administrator as such is not aggrieved or prejudiced by a decree determining the rights of the beneficiaries, and hence may not appeal. The rule appears to be based on the acquiescence of the beneficiaries.” State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356, 358[3]. See also In re Whitsett’s Estate, 237 Mo.App. 1295, 172 S.W.2d 965, 966[1,2],

It is significant that this appeal is taken only by the executors who sought authority to make partial distribution. The trustees who were denied partial distribution and the life beneficiaries who were found entitled to the income in issue are not parties in any way to these proceedings; and, under the authorities, it does not appear that the executors are aggrieved parties for appeal purposes. As matters stand, appellants’ grief arose when the settlement in which they took credit for a distribution was not approved, rather than from the denial of their petition for partial distribution. Accordingly, this appeal is dismissed.

HOUSER and WELBORN, CG, concur.

PER CURIAM.

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

All concur.


text:
    Calvin G. SCHOENE and Charles M. Turlington, a Partnership d/b/a S-T Enterprises, Respondents, v. George HICKAM, Sheriff of Jasper County, Missouri, and Otto A. Owen and Elizabeth L. Owen, Appellants.
    No. 51189.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Rehearing Denied Jan. 10, 1966.

      Robert E. Seiler, Joplin, for respondents; Seiler, Blanchard & Van Fleet, Joplin, of counsel.
    John R. Martin, Joplin, for appellants; Richart, Titus & Martin, Joplin, of counsel.
   HOUSER, Commissioner.

Otto A. Owen commenced foreclosure proceedings on a motel property at Joplin, Missouri under a deed of trust executed by plaintiffs to secure their promissory note for $14,500. The note and trust deed were given for services rendered by Owen as a real estate broker in negotiating an exchange of plaintiffs’ 1,200 acres of land located in Colorado for the motel property in Missouri. Plaintiffs brought suit against Owen and his wife, the payees of the note, and the local sheriff who was named trustee in the deed, to enjoin foreclosure and (1) to declare the deed of trust and note void and unenforceable as arising out of an illegal transaction or in the alternative (2) to declare that plaintiffs are not in default on the note and deed of trust. The circuit court found the note and deed of trust invalid and unenforceable and enjoined the foreclosure. Defendants appealed. Title to real estate is directly involved and this court has jurisdiction, since the ultimate issue is whether the instruments were void ab initio. Kramer v. Johnson, 361 Mo. 1085, 238 S.W.2d 416 [1]; Cannon v. Blake, 353 Mo. 294, 182 S.W.2d 303.

We find these to be the pertinent facts: Owen, a resident of Phoenix Arizona, advertised and held himself out to the public and represented himself to plaintiffs Scho-ene and Turlington as a real estate broker. In the course of his real estate transactions he had performed many of the acts recognized by § 32-2101 of the Arizona Revised Statutes Annotated as those of a real estate broker. He did business generally as a sole trader, occupying his real estate office by himself. He had been in the real estate business since 1960. He had arranged the exchange of properties in California, Colorado and Missouri, in fact all across the United States from New York to the Pacific Ocean. Owen was a licensed real estate salesman but was not a licensed real estate broker in Arizona at the times in question. As a licensed real estate salesman in the transaction in question Owen was not employed or compensated by any licensed real estate broker. He did not hold a nonresident real estate broker’s or salesman’s license in Colorado or Missouri. In March, 1963 Owen was employed by plaintiffs in Arizona as a real estate broker to sell or exchange plaintiffs’ 1,200 acre tract of land in Colorado. There was no mention of Owen acting as agent or in any capacity other than for himself. It was intended that the contract be performed and it was in fact performed in Arizona. Acting under his contract of employment Owen advertised the 1,200 acres in newspapers in the Phoenix, Arizona area, but not in Colorado or Missouri. He at no time left the State of Arizona to show the properties in Colorado or Missouri. He did nothing personally within the borders of those states to promote the deal in any way. He did give plaintiffs the information required by them to locate and examine the motel property in Joplin. Through Owen’s efforts a contract was eventually entered into between plaintiffs and William Stonecipher and wife for the exchange of the 1,200 acres of Colorado land for the motel property in Joplin, Missouri. The transaction was consummated in the office of plaintiffs’ attorney in Scottsdale, Arizona. In order to collect compensation for his services as a real estate broker in negotiating the trade Owen prepared a separate written commission agreement. The parties to this agreement were Owen and plaintiffs. It was prepared in Arizona and was signed for the partnership of Schoene and Turlington by Calvin G. Schoene in Arizona. It provided for the giving by plaintiffs of a promissory note for $14,500 to Owen and his wife to be secured by a deed of trust on the motel in Missouri. A note and deed of trust were prepared by Owen pursuant to the agreement. They were signed by plaintiffs in Maricopa County, Arizona. The note called for installment payments. The first payment was not made but several subsequent payments were made by plaintiffs and accepted by Owen. There is a dispute whether the first payment was waived but we are not concerned with this, for we do not reach the question whether plaintiffs were in default when Owen instituted foreclosure proceedings.

Plaintiffs’ theory below as to the illegality of the transaction, as reflected by the pleadings, evidence and memorandum opinion of the trial judge sustaining plaintiffs’ position, was that defendant Owen illegally engaged in the business of a real estate broker by negotiating an exchange agreement and entering into a commission agreement in the State of Colorado involving an illegal commission on the exchange of land in Missouri, without being licensed either in Colorado or in Missouri to engage in real estate transactions, contrary to § 339.020, V.A.M.S. and Colo.R.S. § 117-1-1.

Appellants’ brief makes two points: “The judgment is contrary to the law under the evidence in this case” and “The judgment is against the weight of the evidence.” Neither point preserves anything for appellate review. Both points violate the rules of appellate practice because of their generality. Instead of sustaining respondents’ motion to dismiss the appeal for violation of the rules, however, we are making an exception, in the exercise of our discretionary powers. It unmistakably appears from the argument portion of appellants’ brief that appellants’ principal point is that the court erred in ruling the note invalid and the trust deed unenforceable as an illegal transaction on the basis that Owen violated the licensing laws of Colorado and Missouri, in that Owen did not make any contract to act as a real estate broker in either of those two states and did not in fact act as a real estate broker in Colorado or Missouri, and erred in not ruling that Owen was licensed as a real estate broker in Arizona, where the contract of employment was entered into; that it was intended that the employment contract be, and it actually was, performed in Arizona and that the commission was legally earned under a valid Arizona employment contract. In support of this position appellants contend that the validity of the employment contract is governed by the law of the place where it was made (Arizona) and not by the law of the place where the real estate is located (Colorado and Missouri); that Owen did not engage in the real estate business in either of those two states, but stayed at all times within the State of Arizona, where he was licensed; that as a licensed real estate broker Owen procured a purchaser ready, able and willing to purchase on terms agreeable to plaintiffs ; that he earned his commission under the Arizona law and was given a valid note and deed of trust therefor; that recovery on these instruments cannot be refused on the ground that he failed to comply with the licensing requirements of Colorado and Missouri, which should not be applied be cause Owen did not act as a broker in those states; that the note and deed of trust should be enforced by the courts and processes of Missouri, and that to do so will not violate the public policy of Missouri.

In their brief respondents make the point that the note and trust deed are invalid but they expand their reasons and grounds beyond those urged upon the trial cotirt. In the Supreme Court, while not abandoning their contention that the Colorado and Missouri licensing laws are applicable to Owen and that he violated them, respondents have added a new and different reason for affirmance, namely, that throughout his dealings with plaintiffs Owen acted as a real estate broker but that he was not licensed as a broker in Arizona, and that under Arizona statutes it was unlawful for him to transact this business as a broker without first obtaining an Arizona broker’s license; that it was unlawful for Owen (holding only a real estate salesman’s license) to accept employment and compensation from anyone other than a licensed broker, and therefore Owen could not legally enter into an employment contract or a commission agreement with plaintiffs or take a note and deed of trust from them as a commission.

In oral argument appellants vigorously objected that whether Owen was licensed in Arizona as a broker was not an issue in the trial below and that it is too late to raise this question for the first time on appeal, citing Welch v. McNeely, Mo.App., 269 S.W.2d 871 [2]; Haire v. Stagner, Mo.App., 356 S.W. 305; Stoll v. First Nat. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 98 [1, 2], and other cases, for the proposition that an appellate court will review a case only upon the same theory upon which it was submitted in the trial court and that a party may not shift his position on appeal. Appellants are not entitled to the benefit of this rule. There has been no change in respondent’s ultimate contention that the note is invalid and that the trust deed is unenforceable. The only change is a change in the reasons for the illegality, but the facts which provide the basis upon which the new reason is asserted are undisputed. Owen himself testified on cross-examination that he was licensed only as a salesman and did not hold a broker’s license 'at the times in question; that he personally entered into the employment contract direetly with plaintiffs; that he prepared and forwarded the written commission agreement between Owen and plaintiffs, and that he prepared and attended to the execution of the note and trust deed which names Owen (not some licensed broker who employed Owen as a salesman) and Owen’s wife as the direct payees and beneficiaries. The documents plainly indicate that Owen was acting as a principal, as a broker, and not as an employee or salesman for and on behalf of another who was licensed as a broker. These admitted and undisputed facts preclude a recovery by Owen, as we shall presently develop, and upon a new trial would necessitate reentry of the same judgment. Where the new issue involves undisputed facts the appellate court may proceed to determine the matter without the necessity of a remand. State of Mo. v. Keiter, Mo.Sup., 394 S.W.2d 399 (decided April 12, 1965); Frieze v. West American Ins. Co., 8 Cir., 190 F.2d 381 [5]. Appellants claim that if the issue had been raised they could have shown that the transaction was entirely legal; that Owen was a real estate salesman associated with a licensed real estate broker, as hinted at by the words “D. B. W. Guy Blackstone Realty” in the upper left hand corner of Owen’s letterheads, and that they could have established that in these dealings Owen was acting for a licensed broker in full compliance with Arizona law. The difficulty with this contention is that the documentation is damning : the correspondence, the written commission agreement, the note and deed of trust, show conclusively that Owen was acting as a principal, for himself, and not as a salesman for another. As indicated in Kirchner v. Farmers’ Mut. Fire Ins. Co., Mo.App., 267 S.W.2d 390 [9-12], “an appellant should not be permitted to object to the affirmance of a judgment on any theory if as a matter of law the ‘new’ theory sustains the judgment appealed from.” As in that case so in this, appellants could not profit by a new trial and we will not encourage litigation by remanding for a new trial where the litigant could not benefit. This is in accord with the provision of Civil Rule 83.13(c), V.A.M.R., that “Unless justice requires otherwise, the court shall dispose finally of the case on appeal and no new trial shall he ordered as to issues in which no error appears.”

Considering the “new” point raised by respondents on this appeal it is our duty to affirm the judgment. Generally matters hearing upon the execution and validity of a contract are determined by the law of the place where the contract is made. Nelson v. Browning, Mo.Sup., 391 S.W.2d 873 [10]; James v. Hiller, 85 Ariz. 40, 330 P.2d 999 [1]; Tanenbaum v. Sylvan Builders, Inc., 29 N.J. 63, 148 A.2d 176 [7]; 16 Am.Jur.2d Conflict of Laws § 39; 11 Am. Jur. Conflict of Laws § 167. As we have found, and as appellants concede and contend in their brief, the contract employing Owen was made in Arizona. That Owen was not licensed in Arizona as a broker, hut was licensed only as a salesman, is clear. Under Arizona law it is unlawful for any person to engage in the business of a real estate broker without obtaining a broker’s license. A penalty is imposed for so acting without a license. It is a criminal offense. A licensed real estate salesman can accept employment and compensation only from licensed brokers and inferentially cannot accept employment and compensation directly from owners and sellers of real estate. Under such statutory provisions a real estate salesman, in order to practice his calling, must be associated either directly or indirectly with a real estate broker duly licensed as such, Gilbert v. Edwards, Mo.App., 276 S.W.2d 611 [10], “and must carry on his negotiations for the buying, selling, and leasing of real estate through his employer, the broker, who alone has the right to receive the commission from the clients or patrons, and, in the event it is not paid, to enter suit upon the contracts providing for the same. The salesman has neither the right nor capacity to enter into such contracts in his own behalf, * * *.” Garvey v. Lagattuta, 15 La.App. 414, 132 So. 267, 269; Weber v. Tonini, 151 Cal.App.2d 168, 311 P.2d 132.

A review of Chapter 20, Title 32, Arizona R.S.A. indicates clearly that the legislature intended it as a police regulation for the benefit and protection of the public and not merely as a revenue measure. In the majority of cases arising under police regulations of this nature the contracts of unlicensed brokers for services rendered have been held void and incapable of enforcement. Anno.—Unlicensed Broker, Compensation, 169 A.L.R. 767, II b., p. 769. Such rulings are reinforced where there are provisions such as § 32-2152, that in order to commence an action for compensation by a broker the complaint shall allege that plaintiff was a qualified licensed broker at the time the claim arose, and § 32-2155, making it unlawful and a criminal offense for any person to pay or compensate a broker for the performance of the specified acts, as a broker, who is not licensed at the time the service is rendered. “It goes almost without saying that under such an act a broker is without right to recover compensation for his services performed while he was unlicensed.” 169 A.L.R. at p. 775.

Williston states the general rule that “Where a statute requires a broker to obtain a license before sales of the kind in question can be negotiated by him, there is no doubt that if such a sale is made by one acting as a broker without the required license, he can recover no compensation for his services.” 6 Williston on Contracts, Rev.Ed., § 1765. And see 53 C.J.S. Licenses § 59, p. 711; 33 Am.Jur. Licenses § 70, p. 386; 17 C.J.S. Contracts § 202. Such a contract is void and unenforceable. Dow v. United States, 10 Cir., 154 F.2d 707, 710; Weber v. Tonini, 151 Cal.App.2d 168, 311 P.2d 132 [3]; Byrne v. Peoples’ Bond & Mortgage Co., U.S.D.C.Pa., 99 F.Supp. 195; Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078; Horwitz v. Food Town, Inc., U.S.D.C.La., 241 F.Supp. 1; Levy v. Birnschein, 206 Wis. 486, 240 N.W. 140, 141; Moore v. Burdine, La.App., 174 So. 279; Copellman v. Rabinowitz, 208 Misc. 274, 143 N.Y.S.2d 496. The reason is that valid and enforceable contracts may not arise out of transactions prohibited by the statutory law. Gilbert v. Edwards, Mo.App., 276 S.W.2d 611 [14]. “The illegality inhering at the inception of such contracts taints them throughout and effectually bars enforcement.” Garvin v. Gordon, 36 N.M. 304, 14 P.2d 264, 266 [3]. As stated in Mueller v. Burchfield, 359 Mo. 876, 224 S.W.2d 87, l. c. 88, 13 A.L.R.2d 153: “The reason for denying relief to a person suing on a contract where a license is required and none is obtained is that the law will not aid such person in enforcing a contract which he had no right to make.” The court quoted from McDearmott v. Sedgwick, 140 Mo. 172, 39 S.W. 776, in which it was said, 1. c. 778: “The principle is well settled that ‘no court will lend its aid to a man who founds his cause of action upon an * * * illegal act.’ This is a principle founded upon public policy, ‘not for the sake of the defendant, but for the law’s sake, and that only.’ ”

That Arizona follows the general rule is borne out by Hunt v. Douglas Lumber Co., 41 Ariz. 276, 17 P.2d 815, wherein the Supreme Court of that state said, 1. c. 819: “It is the general rule of law that where a statute expressly forbids a person from entering into a certain kind of contract until he performs some precedent act, and imposes a penalty upon such person for attempting to enter into the forbidden contract, the contract itself is absolutely void ab initio and the party penalized has no rights thereunder, and the other party to the contract, who was not required to perform any precedent act and who is not penalized by the statute, is not in pari delicto and may repudiate the agreement and stand on his rights as if no contract had ever been made.”

We conclude that the employment contract between plaintiffs and Owen was void ab initio and that it and the note and deed of trust flowing from it are unenforceable under the Arizona law; that plaintiffs are not in pari delicto and may-use the Missouri courts to enjoin the threatened foreclosure.

Appellants claim, however, that if the case is to be decided under Arizona law Owen nevertheless should prevail because it is undisputed that Owen was licensed as a real estate salesman in that state; that as such he is entitled to maintain his action directly in the courts by reason of the first sentence of § 32-2152, which provides: “An action for the collection of compensation earned may be maintained in the courts of the state by any broker or salesman.” The section goes on to provide that “To commence the action the complaint shall allege that the plaintiff was a qualified licensed broker or salesman at the time the claim arose. Prior to hearing the action the court shall require the plaintiff to prove the alleged qualifications.” Appellants misapprehend the force and effect of the first sentence of this section. Insofar as it extends to salesmen the right to maintain an action to recover compensation earned it applies only to actions against brokers. It enables salesmen to sue their employers if compensation earned by them in their capacity as a salesman is not paid. It does not entitle real estate salesmen to bring suit directly against customers for commissions claimed to have been earned by them in the capacity of a broker. To rule otherwise would render § 32-2155 nugatory.

What we have decided makes it unnecessary to explore the question whether plaintiffs were in default on the note and deed of trust when foreclosure proceedings were instituted.

Respondents’ motion to dismiss the appeal is overruled and the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . § 32-2101 defines a real estate ’broker as a person other than a salesman who for another for compensation lists for sale, sells, buys, exchanges or offers, attempts or agrees to negotiate a sale, exchange, purchase, or rental of any interest in real estate; who advertises or holds himself out as engaged in the business of selling, exchanging, or buying of real estate; who assists in or directs tbe procuring of prospects or the negotiation or closing of any transaction which results in the sale, exchange, etc. of real estate. The same section defines a real estate salesman as “a person engaged by or on behalf of a licensed real estate broker to perform any act or transaction included in the definition of real estate broker.”

      . Colo.R.S.1963, §§ 117-1-1, 117-1-2, 117-1-5(6), 117-1-6, 117-1-8, 117-1-11, 117-1-17, 117-1-19.

      . §§ 339.010, 339.020, 339.090, 339.100, 339.160, 339.170, V.A.M.S.

      . § 32-2122 provides: “It shall be unlawful for any person to engage in the business of a real estate broker or salesman without first obtaining a license as prescribed in this chapter and otherwise complying with the provisions of this chapter.” Then follow provisions for applications for license, recommendations as to good moral character, past experience, etc., the qualifications of licensees, requirement of a bond, and other restrictions as to location of place of business, authority to do business only at the location set forth in the licenses, and a provision that a salesman’s license “shall remain in possession of the employer until cancelled or until the licensee leaves his employ, when it shall be returned to the [real estate] commissioner by the broker for cancellation.” A broker’s license fee is $25; a salesman’s license fee is $10. Provisions are made for suspension or revocation of licenses on specified grounds.

      . § 32-2154 provides that a person who acts as a broker or salesman or advertises in a manner which indicates that he is a broker, without being licensed, shall be punished by a fine or jail sentence or both.

      .§ 32-2155 provides:
      “A. A broker shall employ and pay only legally licensed salesmen, and salesmen shall accept employment and compensation as such only from legally licensed brokers.
      “B. It is unlawful for a person, firm or corporation, whether obliger, escrow holder or otherwise, to pay or deliver to anyone compensation for performing any of the acts specified by this chapter, as a broker, who is not licensed at the time the service is rendered. An identification card or certificate of license issued by the state real estate department showing that the person, firm or corporation holds a license for the year in which the payment is made or earned shall be sufficient proof to relieve the obliger, escrow holder or other person from the penalty provided in this section.
      “C. A person violating this section is guilty of a misdemeanor and shall be punished by a fine of one hundred and fifty dollars for each offense.”

      . In giving force and effect to the Arizona law — that is, by ruling the note and trust deed void and unenforceable in Missouri— we are not violating the public policy of the forum. Chapter 339, V.A.M.S. is a police regulation which differentiates between real estate brokers and salesmen in the same manner that the distinction is drawn by Arizona; which makes it unlawful to act as a real estate broker without a license, denies unlicensed persons the use of Missouri courts to recover compensation for services rendered in exchanging real estate without alleging and proving that the person was a licensed broker and authorizes suspension of a license of a real estate salesman if the licensee accepts a commission from any person except the broker with whom he is associated, for the performance of the acts of a broker.


text:
    Bill WATKINS, Minnie Watkins, Wanda Jean Watkins Roberts, and Wylie Edward Watkins, Appellants, v. Lizzie WATKINS, Oline Watkins Breedlove, Maggie M. Watkins Allen, Jodie Watkins, Hilary Watkins, and Vardamon Watkins, Respondents.
    No. 51241.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 10, 1966.

      Ford, Ford & Crow, Wendell W. Crow, James F. Ford, Kennett, for appellants.
    Ward & Reeves, Caruthersville, for respondents.
   HIGGINS, Commissioner.

Bill Watkins and Preston Watkins, plaintiffs, sued Lizzie Watkins, Oline Watkins Breedlove, Maggie M. Watkins Allen, Jodie Watkins, Hilary Watkins, and Vardamon Watkins, defendants, to set aside two deeds to real estate from Joe D. Watkins, intestate deceased father of all parties, to defendant Lizzie Watkins. Defendants denied the allegations of plaintiffs’ petition and, in the alternative, counterclaimed for specific performance of an oral promise of the deceased to convey the lands described in the deeds to defendant Lizzie Watkins. The trial court found for plaintiffs on their petition and decreed that the deeds be set aside on account of incompetency of the grantor at the time of execution of the deeds; on defendants’ counterclaim, the court found all the equities in favor of defendant Lizzie Watkins and decreed specific performance of the contract between her and her father vesting title in her to the lands which had been the subject of and were described in the canceled deeds. Plaintiff Preston Watkins died after the trial and his wife, Minnie, and his children, Wanda Jean Watkins Roberts and Wylie Edward Watkins, were substituted in his stead, and they and plaintiff Bill Watkins have appealed from that part of the judgment and decree which awards specific performance to defendant Lizzie Watkins.

Joe D. Watkins died intestate August 17, 1963, at the age of ninety years. His wife predeceased him in 1919 and he was survived by eight children, the two plaintiffs and the six defendants. Lizzie Watkins was then fifteen years old and her sisters were married and away from the family’s Tennessee home. Upon the death of the mother, Lizzie quit school to keep house and help her father raise her brothers. In 1922 the family moved to Pemiscot County, Missouri, and engaged in farming on rented land. The land in question was purchased by Joe D. Watkins in four parcels on four occasions: In 1934, 93 acres of land in Pemiscot County were purchased; in 1941, 44.4 acres were added; and in 1942, 12.1 acres were purchased, making a total of 149.5 acres in Pemiscot County. He also purchased 160 acres in Ripley County in 1950.

Defendants’ (and Lizzie’s) counterclaim alleged that upon the death of the mother and at the request of her father, “she quit school and devoted her full time to the care of the household of her father and her brothers, and thereafter when her father acquired title to certain real estate in Missouri it was understood and agreed between Defendant, Lizzie Watkins, and her father, Joe D. W-atkins, that in consideration of the services rendered by Lizzie Watkins to her father and her brothers and in consideration of her continuing to render said services the said Joe D. Watkins would either convey or will to defendant, Lizzie Watkins, the real estate which he had acquired in Missouri * * * (description omitted). * * * that * * * relying and acting on the promise of her father, Joe D. Watkins, to either convey or will all of the above described real estate to her, she continued to perform her part of the agreement aforesaid by remaining continuously in the household of Joe D. Watkins until his death and during all of said time she administered to all his wants, nursed him in illness, assisted him in accumulating said real estate, and performed all of her duties commonly performed in a household, and treated her father with kindness and affection, and her father undertook to perform his part of said agreement by conveying all of said real estate to her by deeds, rather than by will, which said deeds plaintiffs are now seeking to annul and avoid, and in the event the Court should hold that plaintiffs are entitled to have said deeds declared null and void, * * * that in order to fulfill the contract and agreement between Joe D. Watkins and Lizzie Watkins, and by reason of the facts aforesaid, the Court should order and decree the title to all said real estate to be vested in defendant, Lizzie Watkins.” Plaintiffs pleaded the Statute of Frauds as a bar to enforcing the oral agreement.

The general warranty deeds by which Joe D. Watkins attempted to convey the lands promised to Lizzie (and which were set aside by the court) were executed at the Pemiscot County Memorial Hospital on July 18, 1963. Mr. Watkins was under the care of Dr. A. G. Shirey of Hayti, Missouri, who admitted him to the hospital June 23, 1963. He was then in a critical and comatose condition and he remained hospitalized until his death. Dr. Shirey assisted in the execution of the deeds by taking decedent’s hand and moving it through the motions necessary to making an X mark and the notary took the acknowledgment upon the doctor’s assurance. Mr. Watkins could sign his own name prior to his last illness. Defendant Vardamon Watkins recorded the deeds and delivered them to Lizzie.

In respect to the contract with her father, Lizzie Watkins testified:

“Q. Your name is Miss Lizzie Watkins? A. Yes, sir. Q. And you have never been married, is that right? A. No, sir. Q. Miss Watkins, where do you live? A. I live out on the other side of Hayti on Route ‡ ‡
“Q. With whom did you live until your father died ? Did you live with your father, with him? A. Yes, sir; yes, sir; yes, sir. Q. Now I believe your mother is dead. Do you recall when your mother died? A. Yes, sir. Q. When was that? A. Nineteen nineteen. Q. And how old were you at that time? A. Fifteen. Q. And up until that time had you been going to school when school was in session? A. Very little. Q, Then after your mother’s death did you go to school any at all? A. No, sir. Q. What did you do after your mother died? A. I taken care of the children. Q. And how many children were there at home? A. Five. Q. Did you have some older sisters? A. Yes, sir, but they was married. Q. Now, do you recall about when your father moved to Missouri ? A. Nineteen twenty-two.' Q. And what did he do after he came up here? A. Farmed. * * *
“Q. Now, do you recall the first land that your father owned or bought, the first land that he bought up here? A. Yes, sir. Q. Do you know how many acres he bought the first time? A. Ninety-three. Q. And you remember about what year that was? A. I believe it was in ’34, I believe. Q. At the time or before he bought this land did he have a conversation with you about what was going to be done to this land? A. Yes, sir, he did. Q. All right. Tell the Court what he told you and what you agreed to, if anything. * * * A. He asked me was I going to stay with him until he got the land paid for. I says, ‘Yes, sir, I will.’ He says, ‘Well, if you will, at my death the land will fall to you.’ That is what he told me. Q. Now, Miss Lizzie, did he make that statement to you later when he bought other land? A. Yes, sir, the same statement. Q. Did he talk over the purchases of these different tracts with you? A. Yes, sir. * * *
“Q. Now, do you recall the incident of buying some land over in Ripley County? A. Yes, sir. Q. That is over around Doniphan? A. Yes, sir. Q. Did he talk to you about that? A. Yes, sir. Q. What did he say to you? A. He told me he was going up there and buy some land, says, ‘If you’ll stay with me at my death the land will fall to you.’ Q. Now, was there ever any conversation between you and your father in which he had denied making this promise to you ? A. No, sir.
“Q. Now, did you stay with your father? A. Yes, sir; yes, sir. Q. Tell the Court just what you did. A. Well, I done all the housework, took care of the children, and worked in the field. That is what I done. Q. Did you have anything in the way of calves or cattle that you claimed to own? A. Yes, sir. Q. And over what period of years was that? A. Well, that was in ’51, I believe; I believe in ’51. Q. What did you do with the cattle or calves that you had ? A. I sold them and paid the last payment on the land at Doniphan. Q. And how much did you get and how much did you pay? A. Six hundred and something was the payment on the land. Q. Did you have any income at all except what you labored for? A. No, sir. Q. When you worked on the farm there for your father did you receive compensation from your father? A. No, sir. Q. Did he ever pay you any cash money of any kind? A. No, sir. Q. Did he ever give you any property of any kind? A. No, sir. Q. Did you ever have any spending money? A. No, sir. Q. Did you ever have an occasion to use any spending money? A. No, sir. Q. Did you ever come to Caruthers-ville? A. No, sir. Q. Did you ever go to Hayti? A. Very few times. Q. Who bought the groceries for the family? A. Brother. Q. Could you tell us offhand how many times you have been in Caruth-ersville prior to your father’s death, before he died? * * * A. I don’t think I was in Caruthersville over three times. * * *
“Q. Miss Lizzie, who bought your clothes? A. My sister back there. Q. Do you have any nice clothes or anything? A. Sir? Q. Do you have any nice clothes? A. No, sir, none only what she has brought me; her and her daughter back there is what brought my clothes. Q. You mean the daughter of your sister? A. Yes, sir. * * *
“Q. I believe you testified that you worked in the field? A. Yes, sir, I did. Q. And what did you get for doing that? A. Not anything. * * *
“Q. Lizzie, did you talk to your father while he was in the hospital? A. Yes, sir. Q. And did he make any statements to you on or about July 18th? A. Yes, sir. Q. With reference to the land? A. Yes, sir. Q. What did he say to you ? * * A. He told me to have those deeds made and bring them to him so he could sign them. Q. You have reference to the — had he had an operation? A. Yes, sir. Q. Now, where was he when that statement was made? A. At home. * * * Q. Now, Miss Lizzie, did he make the statements to you about getting the deeds fixed at any time later ? A. Yes, sir. Q. And when was that, the next time? A. Well, it was, oh, about a week before he had them made, I imagine. Q. About a week before you got them made, you say? A. Yes, sir; yes, sir. Q. And what did he say at that time ? A. Well, he said, T want you to have the deeds fixed.’ Q. Where were the deeds, that is, not these but the ones where your father bought the property? Where were they; who had them? A. I did. Q. Where ? A. At home. Q. And after these deeds here were recorded did you have them, too ? A. Yes, sir. * * *
“Q. Did you expect throughout the years after your father had purchased the first tract of land — did you expect that your father would carry out his promise to you to deed it to you? A. Yes, sir; yes, sir.”

Lizzie’s testimony was corroborated by the testimony of Vardamon Watkins as to her having done all the housework for her father and any of the children living at home following the death of the mother. He testified also that prior to his father’s hospitalization for his last illness, his father had told him “he wanted me to fix it so she could have that land, not one time, but time on time over. * * * He said, ‘You go fix it for her; bring it so I can sign it.’ ” Such discussions and instructions took place at the Cape Girardeau Hospital in May and later at the hospital in Hayti around July 17. In respect to the promise to convey to Lizzie, he testified:

“Q. * * * did your father make any statements to you about this land ? A. Yes, he told me. Q. When was the first time ? * * * A. It was the first time he ever bought that land. * * * He told me he wanted her to have it, said it was hers. Q. All right. When he bought the second piece of land or within that range or period of time, did he make any statement to you about the land? A. The same statement he made the first time. * * * Q. * * * do you know of any money that your father ever gave to your sister Lizzie ? A. No, sir, I never knowed of him giving her one dollar. Q. Do you know of Lizzie having raised some calves and sold them and used the money? A. Yes, sir. Q. For what purpose? A. She made the last payipent on that land up in Ripley County. Q.. Do you know how much that was ? A. Six hundred and something dollars. Q. Do you know of any other things that Lizzie had earned and turned over to the benefit of her father? A. Anything that she had, it went right on this land just like it was his.”

Hilary Watkins also corroborated Lizzie. In respect to what his father said, he testified: “He said he wanted her to have the land; that is all I know. That is all I recall, and that is all. I don’t know anything else. I just know that he said he wanted her to have it. Q. Did you hear him make any statements after the year that he bought the land? A. Yes, sir, all along he said he wanted her to have it, every time. Q. Do you recall the event when he bought another 44 and Yio tract of land ? A. Yes, sir. Q. Did you hear him make any statements about that time ? A. Yes, sir, he stated the same thing; he wanted her to have the land. That is what he said.”

Jodie Watkins also testified to hearing his father make statements that he wanted Lizzie to have the land and said it was because Lizzie took care of the home and household duties for her father. He testified also that Mr. Watkins had given financial help to all the boys and had built houses for them to live in on the land in question but that he had never given Lizzie anything.

Oline Watkins Breedlove testified to a conversation with her father in the year he died: “ * * * he told me that he wanted Lizzie — before he got sick he told me he wanted Lizzie to have the land, and he said that he didn’t — that she stayed there with him and worked awful hard and helped him pay for the land and he wanted her to have it * * *. Q. Did you ever on any other occasions hear your father make any statements? A. He has told me that all the time. Q. What do you mean ‘all the time’ ? A. All the time that he wanted Lizzie to have it because she had raised the children, took care of the children, and that was all the help he ever had.”

The testimony of Bill and Preston Watkins and their wives disputed the nature of the financial help given them by their father in respect to the houses they occupied, in that they placed the amounts contributed by their father at lower sums. They admitted that Lizzie had done all the work attributed to her; however, their theory of the father’s intended disposition of the property, from the testimony of Bill Watkins, was that “(h)e wanted each and every one of his children to have a part and have a home.”

This action in equity is to be reviewed de novo on the record and we must make our own findings of fact, draw our own conclusions of law, and enter or direct the entry of the judgment thus indicated, giving due deference to the trial judge on matters of conflicting evidence. Cleary v. Cleary, Mo., 273 S.W.2d 340, 346 [10-12],

Appellants contend that respondents failed to make a case for specific performance because no enforceable contract was pleaded or proved; there was no certainty or definiteness as to offer, acceptance, essential elements and subject matter of an enforceable contract; there was no consideration; intestate’s alleged statements were ancient and casual and could only support testamentary disposition; that any services performed by Lizzie Watkins were not unequivocally and solely referable to the contract sought to be enforced; that the services were presumptively gratuitous; that Lizzie stayed with her father because she wanted to rather than in reliance upon an oral contract; that the evidence was not so clear, cogent, and convincing as to remove reasonable doubt.

When an oral contract made with a deceased has been performed by the party still living and it would be a fraud on that party to enforce the statute of frauds, equity will interfere to decree specific performance of the contract; but the party seeking specific performance will be held to clear and convincing proof and the agreement must be explicit and supported by adequate consideration. Easley v. Easley, Mo., 333 S.W.2d 80, 83 [1]. The circumstances under which a court of equhy will enforce an oral contract with a deceased person are: “(1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed made before the acts of performance relied upon were had.” Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028 [1], 1029. See also Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722, 730-731; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134; Roberts v. Clevenger, Mo., 225 S.W.2d 728; Willey v. Talkington, Mo., 312 S.W.2d 77, 79 [2]; Steere v. Palmer, 359 Mo. 664, 223 S.W.2d 391, 393 [2,3]; Burt v. McKibbin, Mo., 188 S.W. 187, 191 [2]; McFall v. Hampe, Mo.App., 267 S.W. 54, 57-58 [3].

The trial court found the facts on the issue of specific performance to be as testified by Lizzie Watkins and those who corroborated her testimony. We have drawn the same conclusion and proceed to determine whether that evidence meets the test set out above to support a decree of specific performance.

Appellants contend that the alleged conversations upon which contractual obligation is sought to be founded are too indefinite, uncertain, and vague to constitute an offer capable of acceptance. John Deere Co. of St. Louis v. Short, Mo., 378 S.W.2d 496, 503 [8,9]; Burger v. City of Springfield, Mo., 323 S.W.2d 777, 783 [2-5]; Bengimina v. Allen, Mo.App., 375 S.W.2d 199, 203 [3,4]; 17 C.J.S. Contracts § 36(2), pp. 647-651. The contract here was that if Lizzie would continue to devote her full time to the care of the household of her father and brothers, the father, Joe D. Watkins, would convey or will the land being then acquired to her. Lizzie testified that at the time of the purchase of 93 acres in 1934: “He asked me was I going to stay with him until he got the land paid for. I says, ‘Yes, sir, I will.’ He says, ‘Well, if you will, at my death the land will fall to you.’ ” According to her, the father made the same offer and promise at the time he purchased the other lands, and all such testimony was removed from the realm of being loose, casual, remote, or ancient because it was all corroborated by other witnesses. This, taken with the other circumstances of the case, is certainly explicit, clear, and definite, both as to pleading, proof, and meaning, and it is not necessary to definiteness that the contract be detailed. Smith v. Lore, 325 Mo. 282, 29 S.W.2d 91, 95 [1,2].

Appellants say that Lizzie’s acceptance of her father’s proposal was not sufficient because she wanted to remain at home as opposed to being induced to do so by her father’s proposal. Lizzie testified that she wanted to stay with her father; however, she stated also that she expected her father to fulfill his promise to deed the land to her. In making this contention appellants rely on Collins v. Harrell, 219 Mo. 279, 118 S.W. 432, but the situation there is readily distinguished. The offer there was if she (the beneficiary) stayed with him (the benefactor) he would give her a farm. The beneficiary alleged full performance and sought specific performance which the trial court denied. The circumstances of the beneficiary were such that she would have had nothing if the benefactor had not taken her in where she “was not called upon to make any sacrifice whatever, but simply to continue to receive the same protection and support and care that he had already generously given to her, * * 118 S.W. l. c. 441. That was entirely different from Lizzie’s situation where, at age 30 or 31, she gave up her right to leave her father and agreed to stay with him and do all his household chores including caring for any of his children in the home. From that point on through the acquisition of other properties she sacrificed that right and herself to the welfare of her father, going without any niceties or luxuries in order to help her father pay for the lands which he promised to her and which she expected him to convey to her.

Akin to the foregoing contention is appellants’ contention that as to consideration, “there was no detriment, loss or change of position to the alleged promisee in her continuing to remain at home and carry on as she had done previously.” In support of this position appellants again cite cases, Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200, Brevator v. Creech, 186 Mo. 558, 85 S.W. 527, Sitton v. Shipp, 65 Mo. 297, Schertz v. Blocher, Mo.App., 288 S.W.2d 385, Wallace v. Shanks, Mo., 221 S.W.2d 873, and Feiden v. Gibson, Mo., 218 S.W.2d 105, which are readily distinguished because they involve situations of testamentary disposition or where the promisee retained or obtained a position of betterment or even luxury without future effort or sacrifice to constitute a consideration by performance on the part of the promisee. In contrast, it is admitted that Lizzie expended all the effort and her earnings as she said she did. Even though she wanted to stay with her father, she gave the consideration asked of her and she expected her father to fulfill the contract and thus compensate her for performing her part of the bargain. By not exercising her right to leave the home and abandon her contract, her performance is referable to the contract with her father and none other, and any presumption of gratuitous services is rebutted by this and the evidence of her earnings being used to pay for the farm.

Appellants say that the contract is unfair and unconscionable because its enforcement deprives them of an inheritance, and this is akin to their contention that the equities favor them. Appellants made no claim for specific performance of any agreements from which they may have hoped to benefit, and matters of expenditures made by appellants on the subject property and promises alleged to have been made to them were heard, considered, and obviously rej ected by the trial court in finding the equities in favor of the respondents generally and in favor of Lizzie particularly. In view of the services and work performed and the sacrifices made by Lizzie, it is clear that the equities favor Lizzie and the contract by which her equities are established is thus not unfair or unconscionable.

Appellants charge reasonable doubt as to the occurrence of the conversations attributed to decedent by which Lizzie would make her case, and point to testimony from appellants to the effect that they were promised homes on, and a part of, the land, and to the action of the court in voiding the deeds contrary to respondents’ testimony. These are matters of conflict in the testimony in which we defer to the superior opportunity of the trial judge to note the credible testimony and act thereon, and there is nothing in the record to indicate any doubt as to cause us not to defer to his finding.

Appellants contend also that there was no contract “made before the acts of performance relied upon were had,” and that the evidence will support only a finding of mere intention to reward. In rejecting this contention, we refer to the portion of the contract previously set out from which it clearly appears that the contract was made for the purpose of securing services from Lizzie and of compensating her for those services to be performed by her in the future, even though similar services had been performed prior to entering into the contract, and the evidence supports the contract alleged by defendants.

Without going into further detail, it thus appears that the evidence in this case complies with rules and conditions set forth in Walker v. Bohannan, supra, and such evidence clearly shows that the contract as alleged by respondents was entered into by respondent, Lizzie Watkins, and her deceased father, Joe D. Watkins. It appears also that the contract was fully performed by Lizzie, and that equity should decree the performance which the deceased failed to render or which he was prevented by incompetency from performing. Such decision is supported by similar circumstances in Roberts v. Clevenger, supra; Easley v. Easley, supra; Jennings v. Achuff, Mo., 272 S.W.2d 263; Smith v. Lore, supra; and Glauert v. Huning, Mo., 266 S.W.2d 653.

Appellants contend also that the court erred in admitting testimony from the respondents because they were disqualified by Section 491.010, RSMo.1959, V.A.M.S. (Dead Man’s Statute). The record shows that plaintiffs served interrogatories on, and obtained answers to them from, defendants after commencing this action to void deeds. This, of course, constituted a waiver of the incompetency of defendants as witnesses, Lehr v. Moll, Mo., 247 S.W.2d 686, 690 [6], Edwards v. Durham, Mo., 346 S.W.2d 90, 99 [4, 5], Ess v. Griffith, 139 Mo. 322, 40 S.W. 930, and it is of no consequence that the interrogatories were filed and answered before defendants’ amended pleading was filed by which they sought specific performance, because the pleadings in a case are open until the cause is finally submitted for determination.

Finally, appellants claim that the court unduly limited them in the cross-examination of a witness who had been a re-mainderman in a conveyance made under circumstances similar to those surrounding the deeds in this case, and that absent the limitation they would have been able to develop reflections on the credibility of that witness and of the respondents as witnesses. The objection to the testimony sought was that it was wholly immaterial to, and had nothing to do with, the lawsuit in trial. The objection was sustained and the answer stricken. The offer of proof was that the witness would testify to being a remainder-man in a deed executed when the grantor, his father, was paralyzed and under treatment by a doctor. The offer does not mention a bearing on the credibility of any witness, the testimony sought was immaterial and not relevant to the issue, and the ruling denying the offer was thus a proper exercise of the trial court’s discretion.

Accordingly, the judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    Annabelle Carlisle CANTRELL, Plaintiff-Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY OF DALLAS, TEXAS, Max W. Lilley and Southwest Enterprises, Inc., Defendants, Charles A. Parrish and Helen E. Parrish, Defendants-Respondents.
    No. 51374.
    Supreme Court of Missouri, Division No. 2.
    Jan. 10, 1966.
    E. Mitchell Hough, David W. Bernhardt, Bussell, Hough & Greene, Springfield, for appellant.
    Emerson Foulke, Joplin, for respondents.
   BARRETT, Commissioner.

The plaintiff-appellant, Annabelle Car-lisle Cantrell, was the owner of the Elms Motel at 7th Street and Range Line in Joplin. On the 28th day of April 1961, she entered into a “Contract For The Sale Of Realty” by which she sold the motel property to Charles A. and Helen E. Parrish. In brief the terms of the sale were that the Parrishes were to pay $600 upon the signing of the contract, $11,198.84 indebtedness of the seller to four banks, her personal debts and taxes of $1133.47, all of which together with the sum to be paid on delivery of the deed was to total $85,000, and thereafter the purchasers were to pay the seller $1000 a month for 25 years. On June 28, 1961, the buyers and the seller entered into an “Amendment” to the original contract of sale which, after numerous recitals, provided that “it is the intent and purpose of Seller to release said property from all liens or encumbrances, if any, which she may hold or have thereon by reason of her former ownership,” and then there was the further recital that the Parrishes had conveyed the property to Southwest Enterprises, Inc., which was to “become a party to the original instrument.” By another part of the amended agreement the seller agreed to and accepted from the purchasers an unsecured note in the sum of $300,000 payable in monthly installments of $1000 for a period of 25 years. Thereafter, as it appears from the pleadings, Southwest Enterprises by deed of trust transferred the property to Max W. Lilley, trustee, to secure a principal indebtedness of $440,000 to the Republic National Life Insurance Company.

In these briefly narrated circumstances the appellant-seller Cantrell, on December 19, 1963, instituted this action in one count, in thirteen separately numbered paragraphs, against Republic National Life Insurance Company of Dallas, Texas, Max W. Lilley, trustee, Southwest Enterprises, Inc., and Charles A. and Helen E. Parrish. The petition set out the above noted facts but alleged that all the parties had knowledge of the terms of the original sales contract and of the fact that all the “purchase money” had not been paid and “with full knowledge that the plaintiff was looking to the land for security for such unpaid purchase money.” She alleged that out of these circumstances she had a “special vendor’s lien arising from the conveyance of this land” which the parties defendant all refused to recognize. She then alleged the existence of a controversy between the parties with respect to their rights and liabilities under the various contracts and conveyances and again asserted the substance of her several contentions as well as further pleading for the first time fraud and the invalidity of one or more of the documents involved in the transaction. In conclusion the prayer of her petition was for a declaration of rights and particularly for a finding that she had “a special vendor’s lien on the premises” to secure $290,-725. She asked for a money judgment against the Parrishes for the balance due under the original contract and finally that “the Court declare that said lien be first in priority to all other claims of the defendants herein; and that the same attach to and constitute an equitable charge upon and against said land” and that the land be sold to satisfy her claim.

In response to this petition the respondent-Parrishes filed an answer in which they admitted certain paragraphs of the petition, as to others they professed a lack of sufficient knowledge and finally in paragraph nine they pleaded in defense of the claim for a judgment of $290,725 that on January 18, 1963, “the plaintiff executed and delivered to these defendants her release for a valuable consideration by the terms of which she did release and discharge” the defendant-Parrishes.

Defendants Republic National Life Insurance Company, Max W. Lilley and Southwest Enterprises filed a motion for costs, a motion to strike certain paragraphs of the petition and a motion to dismiss plaintiff’s petition “upon the ground that said petition fails to state a claim upon which relief can be granted.”

In October 1964 the Parrishes, alone upon the pleadings and attached contracts and documents, moved for summary judgment under Civil Rule 74.04, V.A.M.R.

Following this motion there is next in sequence in the transcript a minute from either the clerk’s records or the court’s minutes which “ordered and adjudged” that the motion to dismiss by Republic National Life, Lilley and Southwest Enterprises is “sustained,” and that these parties “be discharged and go hence hereof without day.” In this entry it is further ordered that the dismissal of plaintiff’s petition as to these particular defendants "shall be final and with prejudice to plaintiff unless plaintiff shall file an amended petition on or before 30 days from this date.”

On the basis of all these noted motions there was on January 20, 1965, an over-all “Judgment Entry.” It is not necessary to set that document out in full, in substance it recites that the Parrishes’ motion for a summary judgment “shall be and is hereby sustained” and that they were “entitled to have judgment rendered herein in their favor as a matter of law.” The court found the release valid and denied plaintiff’s claim for a money judgment against the Parrishes. The court also found that plaintiff Cantrell “has no lien of any kind” against the motel property.

At this stage in the proceedings the plaintiff Cantrell filed a motion for a new trial directed almost entirely to the rendition of the summary judgment. That motion was overruled but in the order disposing of it “the plaintiff is granted until on or before 10 days from February 19, 1965 to file amended petition as to defendants Republic National Life Insurance Company and Southwest Enterprises

Then on February 17, 1965, there was another “Judgment Entry” (probably an amended entry). This order again sustains the Parrishes’ motion for summary judgment and declares the rights of the parties upon the pleadings and accompanying documents and concludes by denying plaintiff’s “special vendor’s lien first in priority as to the claims” of the Parrishes.

On February 25, 1965, the plaintiff filed her notice of appeal “from the judgment entered in this action for defendants Charles A. Parrish and Helen E. Parrish against plaintiff on the 17th day of February 1965.”

The pleading is not captioned but the next matter in the transcript, which incidentally has been approved by counsel for plaintiff and for the Parrishes, is a “First Amended Petition” filed on February 26, 1965. As stated, there is no caption, but according to the allegations in the petition the parties, including Charles and Helen Parrish, are identical to the parties in the original petition, the same facts and relationships are set forth, the same documents are all attached as exhibits and in substance the allegations and prayer are the same except that this time there is a more direct charge of fraud and that consequently some of the documents were either void or constituted conditions precedent to the release of her “special vendor’s lien.” But in the end she again prays for a declaratory judgment, particularly for “a special vendor’s lien,” for a money judgment against the Parrishes and finally that her claim of a lien “first in priority” be enforced.

To this new and amended petition the Parrishes on March 5, 1965, filed a motion to dismiss, one of the grounds being that by reason of her notice of appeal on February 24, 1965, “this court lost jurisdiction over these defendants,” the theory being that her notice of appeal vested jurisdiction in this court. And while the pleadings are not captioned, on March 8, 1965, there was filed a motion for costs and a motion to dismiss plaintiff’s petition because it “fails to state a claim upon which relief can be granted.” It is assumed that these latter pleadings or motions were filed by Republic National Life Insurance Company, Lilley and Southwest Enterprises. The latter parties, while listed on the cover of the transcript as defendant-respondents, are not in fact parties to this appeal, have made no formal appearance in this court and the appellant asks no relief as to them.

In this background and upon this record the respondent-Parrishes have filed a motion to dismiss the appeal from the reason that “the judgment appealed from is not a final judgment, and is therefore not ap-pealable because it fails to dispose of all the issues in the cause and does not adjudicate the rights of all the parties.” In short, it is urged that upon this record, under the applicable statute and rules (RSMo 1959, § 512.020, V.A.M.S.; Civil Rules 82.04-82.-06), the judgment which the plaintiff has designated in her notice is not a final ap-pealable judgment and that therefore the appeal should be dismissed.

Since, as it now appears, the precise problem presented by this record has not heretofore been considered, the background circumstances have been set forth in laborious detail. The appellant, while recognizing the general rule which requires the dismissal of premature appeals, appeals in which all the parties or all the issues have not been finally adjudicated (Scheid v. Pinkham, Mo., 395 S.W.2d 166; Beuttenmuller v. Vess Bottling Co., Mo., 395 S.W.2d 204; McDaniel v. Lovelace, Mo.App., 392 S.W.2d 422), contends that there are “recognized exceptions” and that this case falls within the exceptions. In support of her position she cites the single authority, Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, a suit by a divorcee against her former husband. The action was in five separate counts and asked (1) for a half-interest in land on the theory of a resulting trust, (2) for partition, (3) damages for breach of promise of marriage, (4) actual and punitive damages for assault and battery, and (5) to set aside a conveyance of the land by the husband to an aunt and uncle. The court tried and entered judgment on counts 1, 2 and 5, the plaintiff filed a motion for a new trial and appealed from the judgment finally entered on these counts. Counts 3 and 4 were not adjudicated and there was no express order of trial of separate issues, nevertheless, the court did not dismiss the appeal, saying, in part, “considering the record as a whole, it is apparent that only one judgment was intended to dispose of these three counts and that such judgment was intended as a judgment separate and apart from any relief that might thereafter be given on the two remaining counts.” And so, all matters considered, the judgment appealed from was “construed as an order for a separate judgment within the meaning” of Rule 82.06 and therefore was final and appealable. And, ordinarily, nothing more appearing, an order dismissing a petition for failure to state a cause of action is a final appealable order “unless the trial court shall otherwise specify.” Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, 911.

The appellant points to the amended judgment of February 17, 1965, and says that the court in fact adjudged that plaintiff’s amended contract constituted a valid waiver "of any and all claims of plaintiff to a lien or encumbrance upon the real estate described in the petition for the unpaid purchase price thereof.” The court specifically denied plaintiff’s claim to a money judgment against the Parrishes. All in all, therefore, she says that although other parties with other issues are yet in the case “there is as a practical matter nothing to be determined” as between her and the Par-rishes. And in this connection it is said that if the court had intended the judgment as interlocutory it could and should have done so unequivocally.

In the first place the problem here is not alone a failure to dispose of all parties, and as far as the immediate parties are concerned at least some of the issues are separable if not entirely independent and perhaps final. But in addition to the problem of parties, the question here is one of disposing of all issues — even interrelated issues. And the January record entry dismissing the action recites that the order “shall be final and with prejudice to plaintiff unless plaintiff shall file an amended petition on or before 30 days from this date.” On the same day the amended judgment was made a matter of record, February 17,1965, the agreed to transcript recites that plaintiff’s motion for a new trial on the motion for summary judgment was refiled and overruled and that she was given 10 days in which "to file amended petition as to defendants Republic National Life Insurance Company and Southwest Enterprises.”

Whether pursuant to the underscored sections of the various orders or not, the plaintiff-appellant has filed an amended petition and the facts alleged and the relief sought, while perhaps in more detail, make essentially the same allegations as were set forth in her original petition. As indicated in narrating the record, the caption of the amended petition is omitted, but obviously and whether included in the order permitting the filing of an amended petition or not the Parrishes are parties to the newly stated action and virtually the same relief is again sought. The Parrishes have responded with a motion to dismiss in which they advance three reasons and that motion, and for that the case, is pending and undisposed of as to these immediate parties to this appeal as well as to the newly alleged issues. In short, lest further attempt at demonstration indicate an opinion upon some phase of the merits of either the appeal or the pending action, interrelated issues as well as parties have not been finally disposed of and as respondents suggest “If appellant is unable to prevail in her pending action against the two corporate defendants, she can then appeal as to these respondents.” And, it may be interpolated, since this is a court-tried equity suit the entire cause will be reviewable anew upon its merits in this court. Civil Rule 73.01 (d); RSMo 1959, § 512.310, V.A.M.S. While there are no precisely similar records the following cases support the conclusion that the appeal in this case is premature and should therefore be dismissed. Bailey v. Williams, Mo., 326 S.W.2d 115, 120; Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Young v. Raupp, Mo.App., 301 S.W.2d 873.

For the indicated reasons the appeal is dismissed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.