author: STONE, Judge.

text:
    In re ADOPTION OF P. J. K. J. D. L. and N. J. L., Petitioners-Respondents, B. J. K., Father-Appellant.
    No. 8065.
    Springfield Court of Appeals. Missouri.
    Aug. 7, 1962.
    Motions for Rehearing or to Transfer Overruled Aug. 22, 1962.

      Douglas & Douglas, Neosho, for father-appellant.
    Ruyle & Henry, Neosho, for petitioners-respondents.
   STONE, Judge.

This is an appeal by an objecting father from a decree of adoption of his child by her stepfather. The child sought to be adopted is “a dainty, finely formed little girl with sparkling brown eyes, blond hair and fair complexion,” who was born in L- County, Texas, on February 4, 1958, of the marriage between B. J. K. (hereinafter called the father) and N. J. K. (hereinafter called the mother), which had been solemnized in Missouri on July 21, 1956, two weeks before the mother had attained her eighteenth birthday. This marriage, of which the child was the only issue, ran aground in stormy matrimonial seas and was dissolved on September 24, 1959, in the District Court of L- County, Texas, by decree granting a divorce to the mother “on the grounds of cruel treatment” and awarding care and custody of the child to the mother but with no provision for the child’s support. After the divorce, the mother and the child lived with the mother’s parents in Southern Missouri until the latter part of 1959, when they settled in Springfield and the mother found employment to support herself and the child. In March 1960 the mother met J. D. L. (hereinafter called the stepfather) and, after a three-month courtship, they were married on June 18, 1960. Both were then twenty-one years of age. It was the first marriage for the stepfather, a high school graduate steadily employed for four years (at the time of marriage) as a body and fender man at an automotive repair shop.

On March 22, 1961, the stepfather instituted this adoption proceeding by the filing of his petition in which the mother joined for the stated purpose of giving her express consent to the adoption prayed Cf. In re Adoption of Siler, 240 Mo.App. 1097, 1098, 225 S.W.2d 379. As obviating the necessity of submitting the father’s written consent to adoption, it was alleged that, for a period of more than one year immediately prior to the filing of the petition, he had willfully neglected to provide the child with proper care and maintenance. Section 453.040(4). (All statutory references are to RSMo 1959, V.A.M.S.) Immediately upon institution of the proceeding, the court appointed a member of the bar as guardian ad litem of the child [Section 453.020], and in due time the guardian filed his answer. On April 3, 1961, a juvenile court officer filed a detailed report or study [Section 453.070], which was, as the trial judge aptly summarized it, “very favorable” to the petitioning stepfather and mother. On May 18, 1961, the father filed his answer in which he objected to the adoption of the child, stated that petitioners had not had the child “in their legal custody” for a period of nine months [Section 453.-080], alleged that the mother had “refused support from this defendant (the father) for the minor child and will not accept such support,” complained that he had been refused the right' to visit or see the child, denied that he had “willfully neglected to provide for her care and maintenance,” and averred boldly and unequivocally that f,he (the father) has always contributed, to the support of the child.” (All emphasis herein is ours.) ■

..With all interested parties represented by counsel, a contested hearing was held on July 20, 1961, at the conclusion of which the matter was taken under advisement to permit the filing of briefs. And, on August 25, 1961, the trial.court entered.a decree of adoption supported by a written memorandum' and finding of facts in which he emphasized (and appropriately so in view of the sharply-conflicting evidence) that he had had “the opportunity to see the parties face tc¡ face and hear the testimony and attempt to ¡judge the,, sincerity of the parties” and expressed himself as believing “very strongly that the conduct of this father constitutes such willful failure to support ano maintain that it comes within the statute [Section 453.040(4)] which eliminates the, necessity ¡for written consent.”

Before treating of the mérjts, we first dispose of the “point” ip the father’s brief that the trial court was without ju1 risdiction because the chilcj was a ward of the District Court of IA — -County, Texas, where the divorce was granted. The father’s counsel toss in this “point” egregiously unsupported by authority and conspicuously undeveloped by argument. In language unmistakably clear, Rule 83.05(a) plainly requires that the points relied on shall be submitted “with citation of authorities thereunder” and that the brief shall include “an argument which shall substantially follow” the points. (All references to rules are to the Rules of Civil Procedure, V.A.M.R.) It is neither our function nor our duty to brief appellant’s points [Morris v. Willis, Mo., 338 S.W.2d 777, 780; Ambrose v. M.F.A. Co-Operative Ass’n., Mo., 266 S.W.2d 647, 651; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483], and the “point” under discussion neither merits nor receives any consideration as such. But concerned, as we always are, lest our courts inadvertently transgress their jurisdictional limits, we have put aside the unsupported “opinion” of the father’s counsel on this question; and, upon independent investigation, we have determined that, since the mother, to whom custody of the child was granted by the Texas decree, consented to the adoption and since both she and the child were bona fide residents of Greene County, Missouri, when the ádoption proceeding was instituted, the Juvenile Division of the Circuit Court of Greene County undoubtedly had jurisdiction of such proceeding.

It may not be inappropriate to observe also at this point that the complaint of petitioners’ (respondents’) counsel concerning the statement of facts in the father’s (appellant’s) brief is fully justified. Rule 83.05(a) (2) requires “a fair and concise statement of the facts without argument.” “The statement is primarily to afford an immediate, accurate, complete and unbiased understanding of the facts of the case, and one which does not fairly present the facts is pernicious to the extent it conveys in the first instance a false, distorted, or imperfect impression of the facts.” Wipfler v. Basler, Mo., 250 S.W.2d 982, 984(3); Markowitz v. University City, Mo.App., 335 S.W.2d 455, 456. “(A) statement which omits the essential facts on which an appellant’s adversary relies cannot be deemed a substantial compliance” with Rule 83.05(a) (2). Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, 283(3); Kleinhammer v. Kleinhammer, Mo.App., 225 S.W.2d 377, 378. Instant appellant’s statement, which presents only facts favorable to the father and designed to support his contention, is within the category labeled as “pernicious” and does not approach even colorable compliance with the cited rule. But instant respondents have supplied an adequate statement [Rule 83.05(d)]; and, mindful, that this proceeding involves the sacred relationship of parent and child, we have disregarded appellant’s statement and have determined the appeal on its merits. Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 100(3).

We address ourselves to the only factual issue, i. e., whether the father’s conduct, for more than one year prior to the decree of adoption, was such that it fairly may be said to have constituted willful neglect to provide proper care and maintenance for the child and thus to have obviated the necessity for the father’s consent to adoption. Section 453.040. Although (as we have noted) the father’s answer alleged that “he has always contributed to the support of the child,” there was not a scintilla of evidence to that effect. On the contrary, it was established by abundant evidence that, during the period of two years from July 21, 1959 (when the father admittedly terminated his support of the mother and the child in Texas) to July 20, 1961 (the date of trial), his sole payment either to the child or for her support was the sum of $1.75 given to the child while he was visiting her sometime during 1960. Certainly the father did not provide proper care and maintenance for the child during' that entire period of two years, but on this appeal his counsel contend that the finding of the trial court that the father had “will-fully neglected” so to provide “was against the weight of the evidence.” As counsel1 point out, our courts have declared repeatedly that, in controversies involving termination of the parent-child relationship, adoption statutes must be construed strictly in favor of parental rights; and; in keeping with that policy of strict statutory construction, it is settled that the willful neglect contemplated by Section 453.040‘(4) is neglect that is intentional, deliberate, and with- ■ out just cause or excuse. In re Perkins, 234 Mo.App. 716, 726-727, 117 S.W.2d 686, 692(6); In re Watson’s Adoption, 238 Mo.App. 1104, 1114-1115(7), 195 S.W.2d 331, 337; In re Slaughter, Mo.App., 290 S.W.2d 408, 412. Thus, the determinative inquiry becomes whether the father’s admitted failure to support his child was intentional, deliberate, and without just cause or excuse.

The father offered various explanations or excus&s for his failure to support. Chief among them was the mother’s alleged refusal to accept child support from him. The validity vel non of this excuse rested, in large part, upon the credibility of the par-, ties and upon the weight and value accorded to their oral testimony. On the one hand, the father repeatedly fell back on this excuse while, on the other hand, the mother categorically denied it — “I (the mother) have never refused any money that he has offered; there has never been any offer to refuseThe only documentary evidence tending to support the father’s contention was the mother’s statement that “I don’t want support from B- (the father) & won’t accept it if he offers it,” which appears on the thirteenth page of a twenty-one page handwritten letter from the mother to the father’s sister dated December 28, 1959, in which the mother laid bare her soul and in a veritable torrent of words excoriated the father for his mistreatment of the mother and the child, reaffirmed the mother’s fierce determination to protect and care for the child, and averred her ability to do so in the future as she had in the past during the period of several months from the separation of the father and the mother to the date of the letter. Upon trial, the mother quickly conceded that the quoted statement from her letter reflected “my feeling at that time — -I was scared to death,” but she insisted that had not been her feeling prior or subsequent to that time. True, the mother and the stepfather said that neither had demanded from the father any contribution for child support, but that fact as well as the mother’s letter should be viewed against the backdrop of circumstances surrounding the Texas divorce.

The mother’s testimony, accepted by the trial court, was that she had asked for child support when she had instituted her action for divorce, but that she had abandoned that request to avoid any contest about custody of the child. In her language, “when it came up in court that he (the father) would not fight for her (the child) . . . if we wouldn’t ask for support, I laid it all aside and said, ‘all right.’ ” The father’s denial of any such conversation or discussion is not persuasive, particularly in view of the terms of a written agreement (hereinafter referred to as the agreement) executed by the father and by the mother under date of September 11, 1959, thirteen days prior to entry of decree in the divorce suit. After reciting the permanent separation of the parties and their “desire to make a division of property and settlement of our property rights,” the agreement (1) provided that the mother was to have “radio, electric iron, sewing machine, all of the dishes, all of the linens, vacuum cleaner, refrigerator given (the mother) by her mother, the Bible, electric clock, all of the cooking utensils ... all her personal belongings and those of this child” and that “all other personal property” was “recognized and confirmed as the sole and unconditional property” of the father, (2) obligated the mother, immediately after the divorce, to convey to the father her interest in all jointly-owned real estate, (3) required the father, immediately after the divorce, to pay "his attorney and the court costs” and $1,000 to the mother, (4) in a separate numbered paragraph recited that “it is further agreed and understood that the (father) will not be obligated in any way for the payment of child support or the fee of (the mother’s) attorney ” and (5) finally stated that, “at the option of either party,” the agreement might be incorporated in the decree.

The decree recited “that plaintiff (the mother) and defendant (the father) have accumulated, during their marriage, various items of household furnishings and appliances and a 2 — acre home -place, an automobile, pick-up truck and livestock” and “that plaintiff and defendant herein have arrived at a property settlement agreement that is acceptable to both plaintiff and defendant and that the same was fairly arrived at and is an equitable division of property and should be approved by the court”; but, although custody of the child was awarded to the mother, the matter of child support was not mentioned in the decree. Under the law of Texas, the father’s domicile, by which his obligation for child support is determinable [Berkley v. Berkley, Mo., 246 S.W.2d 804, 34 A.L.R.2d 1456; Yarborough v. Yarborough, 290 U.S. 202, 211, 54 S.Ct. 181, 185(8), 78 L.Ed. 269, 276(6); Restatement, Conflict of Laws, § 459, p. 548], the decree did not relieve the father of his primary and continuing duty to support the child. And neither did the agreement, for, insofar as it purported so to do, it was clearly of no effect as offending against the principle that a contract by a father having for its object the evasion of, or relief from, his moral and legal responsibility to protect and care for his child is against public policy — a principle recognized in most jurisdictions and followed both in Missouri [Jones v. Jones, 325 Mo. 1037, 1045, 30 S.W.2d 49, 53(1)] and in Texas. Snell v. Ham, Tex.Civ.App., 151 S.W. 1077, 1080(8). See also Thurman v. Fatherree, Tex.Civ.App., 325 S.W.2d 183, 186(8), error dismissed. A child born in wedlock is brought into this world with an inborn, innate right to support by its father, which he cannot shift, shed, shun or shirk by simply denying such obligation in a contract with another. Kershner v. Kershner, 202 Mo.App. 238, 242, 216 S.W. 547, 548; Messmer v. Messmer, Mo.App., 222 S.W.2d 521, 524; Kelly v. Kelly, 329 Mo. 992, 1005, 47 S.W.2d 762, 768, 81 A.L.R. 875.

With the father’s counsel no doubt cognizant of this, the purported agreement was not pleaded in the answer, but both the father and his counsel made frequent reference to the agreement during trial. E. g., counsel asked the stepfather whether he had “read the property settlement and the agreement which these parties entered into in Texas,” inquired whether the mother had agreed therein “not to accept support” from the father, and pressed for an answer to the question, “well, didn’t she sign up to that down there, to your knowledge?” And, when the father’s counsel took over the mother on cross-examination, he immediately produced and identified a signed copy of the agreement, read therefrom the above-quoted statement that “the (father) will not be obligated in any way for the payment of child support,” and established by the mother that the agreement so stated and that she had signed it.

The father’s reliance upon the agreement was no less open and significant. E. g., even after the father had been led skillfully on direct examination (a) to agree that he had made no contribution because the mother “never asked for anything” but that he “would have sent it if she had asked for anything” and (b) to profess that he was “willing, in the future, to support the child,” the father again sought refuge in the agreement on cross-examination. Conceding that he had known that the mother “couldn’t support herself and this child without anything” and “that somebody has been having to provide for the support for this child,” he first said that “she (the mother) has refused the support” and then added “no, it wasn’t in the court order, and it wasn’t in our agreement.” And, when the mother’s counsel probed his shoddy, selfish refusal to permit the mother to take the baby bed when she returned to Missouri with the child, the father’s excuse was that “the baby bed was owned by us before the baby ever came into the world” — “it wasn’t listed” —“I was supposed to have all property and furniture which . . wasn’t listed on that court order for her.” The “property and furniture” for the mother were “listed” only in the agreement, which in turn was mentioned in the decree.

At one point in his testimony, the father offered as an excuse for his failure to support the child after July 21, 1959 (when the 'father admittedly terminated support) that ’T didn’t even know where she (the mother) was — -we tried to call up here and they wouldn’t tell us where she was”; but he shortly conceded that “I figured she was at home” (where indeed she was) and that, after he knew of a certainty where she was, he still contributed nothing.

In his brief, the father lists four things he allegedly “did to show good faith,” towit, (1) that he had carried hospitalization insurance on the child since her birth (this was his uncontradicted but unconfirmed statement to be taken with his concurrent admission that he did not know whether she had been in a hospital), (2) that he had “established a savings account for the child” in a Texas bank as indicated by an account book showing deposits in the aggregate amount of $83.65 (“she has to be there personally to draw the money”), (3) that he had “been to see the child five times” (and so he had, although there was much conflict in the evidence pertaining to those visits and, as the trial court observed, a question whether they were motivated “by paternal affection or desire to embarrass the mother and to cause her trouble”), and (4) that he “never forgot the child on Christmas.” But, regardless of the labored explanations, lame excuses, and listed items of “good faith,” the inescapable truth is that neither resourceful counsel nor the court has been able to wring out of the record any evidence that the father contributed to the child’s support or made any provision for her proper care and maintenance during the period of two years from July 21, 1959, to July 20, 1961. That the father was, at all times, financially able to support the child is not, and could not well be, denied. For the evidence clearly showed that he had been employed steadily by a major manufacturer since long prior to the child’s birth, and that his “take-home pay” for a regular 40-hour week (and he often worked overtime) was $79 to $81 per week. We record parenthetically that the father, who is “considerably” older than the mother, also has remarried, his present wife having been “approximately nineteen” at the time o.f hearing.

The father’s counsel relies primarily on In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686. But the facts in the instant proceeding and in Perkins, supra, are poles apart, and that case is not persuasive or controlling here. As in other areas, no two adoption proceedings are presented in the same factual mold; and whether a father’s neglect to provide for his child is willful, i. e., intentional, deliberate, and without just cause or excuse, must depend in each instance upon the peculiar facts and circumstances of the particular case at hand. Bearing in mind our appellate duty to review the case upon both the law and the evidence as in suits of an equitable nature but with appropriate regard (a) for the opportunity of the trial court to judge of the credibility of the witnesses and (b) for the injunction that the judgment nisi may not be set aside unless it was clearly erroneous, we are impelled to agree with the trial court’s finding that the instant father’s neglect to support was willful, and thus that his consent to adoption was not required. Section 453.040.

However, the father also complains that, in any event, the trial court erred because (so it is alleged) there was no showing that petitioners (i. e., the stepfather and the mother) had had “the lawful and actual custody” of the child for at least nine months prior to entry of the decree of adoption on August 25, 1961. Section 453.080. The custody of the child had been awarded to the mother by the Texas decree on September 24, 1959, the child had been in the mother’s custody continuously thereafter, and the mother (already a natural parent) did not seek to become an adoptive parent but simply joined in the petition in this proceeding for the purpose of consenting to the child’s adoption by the stepfather, so there could be and is no issue pertaining to the mother’s custody. Thus, the point under consideration is narrowed to the sufficiency of the stepfather’s custody.

The undisputed evidence was that the stepfather married the mother on June 18, 1960, and that, during the ensuing period of more than fourteen months to entry of the decree of adoption on August 25, 1961, the mother and the child lived in the same home with the stepfather; but the father’s position seems to be that the custody in which the stepfather shared during the aforesaid period was not “lawful and actual” as to him because there had been no prior order of court transferring custody of the child to the stepfather. However, in State ex rel. Dorsey v. Kelly, Mo. (banc), 327 S.W.2d 160, the Supreme Court pointed out that “section 453.080 does not require that an order of transfer of custody to petitioners for adoption be made as a prerequisite to lawful adoption” but only that “ ‘the court, after due hearing, is satisfied . . . that the person sought to be adopted, if a minor, has been in the lawful and actual custody of the . . . petitioners for a period of at least nine months’ ”, and again that “the custodial question presented to the court in decreeing adoption of a minor under . . . section 453.080 is not whether there has been an order of a court of competent jurisdiction awarding custody of the child to petitioners during the minimum nine months’ period, but rather is it whether custody of the child has been lawful and actual in the petitioners during that period.” [327 S.W.2d loc. cit. 165] In Dorsey, supra, the court cited with approval In re Adoption of Siler, 240 Mo.App. 1097, 225 S.W.2d 379, in which it was held specifically that, where a petitioning stepfather had married the natural mother of a child and thereafter had shared custody of the child in the same home with the mother continuously for more than nine months, the stepfather’s custody was “lawful and actual” during that period and the court had jurisdiction to entertain the stepfather’s petition for adoption and to proceed to a decree, although there had been no prior order of court transferring custody to the stepfather. From the foregoing, we think it plain that there is no merit in the instant father’s complaint.

Finally, the father assigns error for the alleged failure of the guardian ad litem to measure up, in the performance of his duties, to the high standard required of him. Hemphill v. Hemphill, Mo., 316 S.W.2d 582, 587; Hemphill v. Quigg, Mo., 355 S.W.2d 57, 61. Thirty-four days after his appointment, the guardian ad litem filed his answer in which, “upon his knowledge, information, belief and investigation of petitioners herein,” he recommended the granting of the petition for adoption but prayed the court to require strict proof. There is no showing that the guardian ad litem did not conduct an investigation, as he reported that he had done; and, in the circumstances of this case where the court upon trial reached the same conclusion, the guardian ad litem is not discredited simply because he coupled with his request for strict proof a recommendation that the adoption be granted. This is not a case where “(i)t is obvious” that the guardian ad litem “did not fairly and adequately represent his ward” [Hemphill v. Hemphill, supra, 316 S.W.2d loc. cit. 587]; and, in the absence of any showing to the contrary, we must presume attention, not inattention, to duty on the part of the guardian ad litem. Spotts v. Spotts, 331 Mo. 917, 932, 55 S.W.2d 977, 983(14), 87 A.L.R. 660; Meyers v. Smith, Mo.App., 349 S.W.2d 412, 414(3, 4). With the record demonstrating that the hearing was an adversary contest in which able counsel were diligent and zealous in eliciting and developing pertinent factual information bearing upon the child’s welfare [cf. In re Mayernik, Mo., 292 S.W.2d 562, 571], we are not impressed by the father’s after-trial complaint about the guardian ad litem. This assignment of error is denied.

Even as in other actions involving the custody and support of minors, the welfare of the child is the primary and paramount consideration in an adoption proceeding, the wishes of the natural parents, of the petitioners, and of the child itself being secondary and subservient thereto. In re G. K. D., Mo.App., 332 S.W.2d 62, 67; Adoption of McKinzie, Mo.App., 275 S.W.2d 365, 372(8); In re Wines’ Adoption, 241 Mo.App. 628, 239 S.W.2d 101, 104(2); In re Snow’s Adoption, 226 Mo.App. 340, 41 S.W.2d 627, 628(2); Thompson v. Arnold, 208 Mo.App. 102, 230 S.W. 322, 324(4). On the whole record, we are convinced beyond doubt that the welfare of the innocent child, with whose future we are concerned, was served by the decree of adoption, and that, in reaching that result, the court did not deal with the father’s rights improperly or unreasonably. Cf. In re Mayernik, supra, 292 S.W.2d loc. cit. 573. Accordingly, the decree is affirmed.

McDOWELL, J., concurs.

RUARK, P. J., not sitting.

      . Hansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 565(1); Metrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W. ; 2d 1015, 1019(7); Moore v. Bone,. Mo. App., 355 S.W.2d 398, 405(9); Atkinson v. Coca-Cola Bottling Co., Mo.App., 275 S.W.2d 41, 46(5); Wattson v. James B, Welsh Realty & Loan Co., Mo.App., 266 S.W.2d 35, 37(2).

      . Section 453.010; In re Mayernik, Mo., 292 S.W.2d 562, 570-571(10); In re Alls’ Adoption, Tex.Civ.App., 278 S.W.2d 524, 526(3) ; In re Burton’s Adoption, 147 Cal.App.2d 125, 305 P.2d 185, 191 (14-16); Modacsi v. Taylor, Ala.App., ,7 104 So.2d 664(3); In re Chinn’s Adoption, 238 Iowa 4, 25 N.W.2d 735, 737-738(4, 5);. 2 Am.Jur,2d Adoption, § 48, loc cit. 899;

      . In re Mayernik, supra, 292 S.W.2d loc. cit. 568-569(3); In re G. K. D., Mo.App., 332 S.W.2d 62, 66(3); In re Slaughter, Mo.App., 290 S.W.2d 408, 411(3), 412; Adoption of McKinzie, Mo.App., 275 S.W.2d 365, 369(5); Hyman v. Stanley, Mo.App., 257 S.W.2d 388, 390; In re Adams, Mo.App., 248 S.W.2d 63, 66(7); Application of Graham, 239 Mo.App. 1036, 1045, 1048, 199 S.W.2d 68, 73(1), 75 (12); In re Watson’s Adoption, 238 Mo.App. 1104, 1113, 195 S.W.2d 331, 836 (1); In re Perkins, 234 Mo.App. 716, 726, 117 S.W.2d 686, 691(3).

      . Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564; Lane v. Mangum, Tex.Civ.App., 203 S.W.2d 945, 946(2); Martinez v. State, 165 Tex.Cr.R. 596, 307 S.W.2d 259, 261(4). See also Vernon’s Ann.Civ.St. art. 4639a, as amended Acts of 1961, p. 663; Dilger v. Dilger, Tex.Civ.App., 271 S.W.2d 169; annotation 69 A.L.R.2d 203, 210-211, and the Texas cases there collected. The law of Missouri is in accord: Kelly v. Kelly, 329 Mo. 992, 998, 47 S.W.2d 762, 764(2), 81 A.L.R. 875; Allen v. Allen, 364 Mo. 955, 958, 270 S.W.2d 33, 35(2); Lodahl v. Papenberg, Mo., 277 S.W.2d 548, 550 (1), 551(5) ; Broemmer v. Broemmer, Mo.App., 219 S.W.2d 300, 303(3).

      . 17 C.J.S. Contracts § 260 p. 643; 39 Am.Jur., Parent and Child, § 48, loc. cit. 674; Id., § 42, loc. cit. 653; annotation 42 L.R.A.(N.S.) 1014; annotation 27 L.R.A. 56; Zirk v. Nohr, 127 N.J.L. 217, 21 A.2d 766(1); Nelson v. Nelson, 340 Ill.App. 463, 92 N.E.2d 534, 536 (6); Pappas v. Pappas, 247 Iowa 638, 75 N.W.2d 264, 266, 57 A.L.R.2d 1134, 1137.

      . For cases in which willful neglect was shown, see In re Wines’ Adoption, 241 Mo.App. 628, 239 S.W.2d 101, 103; In re Snow’s Adoption, 226 Mo.App. 340, 41 S.W.2d 627; Slaughter and IIj’man, supra, note 3. For cases in which willful neglect was not shown, see Hartwig v. Hartwig, Mo.App., 333 S.W.2d 101; Thompson v. Arnold, 208 Mo.App. 102, 230 S.W. 322; Watson and Perkins, supra, note 3.

      . Rule 73.01; Section 510.310(4); In re G. K. D., supra, 332 S.W.2d loc. cit. 75(7); In re Slaughter, supra, 290 S.W.2d loc. cit. 410(1); In re Snow’s Adoption, supra, 41 S.W.2d loc. cit. 628.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harvey F. EUGE, Defendant-Appellant.
    No. 31058.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    Motion for Rehearing or Transfer Denied Sept. 11, 1962.

      Harvey F. Euge pro se.
    Norman H. Anderson, Pros. Atty., Daniel O’Brien, Asst. Pros. Atty., Clayton, for respondent.
   BRADY, Commissioner.

Defendant was found guilty of issuing an insufficient funds check (§ 561.-460, RSMo 1959, V.A.M.S.) and his punishment was fixed by the jury at a fine of $1,000.00 and costs. His appeal was submitted during our March docket. We have not been favored with briefs by the defendant nor by the State, and therefore the record and the assignments of defendant’s motion for new trial properly preserving the trial court’s alleged errors are for our review. Rules 27.20, 28.02, 28.08, V.A.M.R.

Defendant conducted his own defense at the trial, filed his own after trial motions, and typed the transcript himself. His after trial motions, which we will consider collectively as a motion for new trial, present thirty-five assignments of alleged error, the vast majority of which are too general to comply with Rule 27.20, V.A. M.R. They are vague, indefinite, rambling, and repetitious, and preserve nothing for our review. However, we have ascertained that defendant attempts to raise certain constitutional questions and attacks the information. He also alleges as reversible error the overruling of his plea in abatement, the trial court’s .action in going to trial over his objections and in denying him time to apply for a writ of prohibition, the denial of his request for a mistrial, the giving of those instructions given by the court and the refusal to give certain instructions he offered. In addition, the defendant questions the sufficiency of the state’s evidence to support the verdict.

The defendant was convicted of a misdemeanor, but if a question involving construction of the Constitution is properly presented, jurisdiction would be in the Supreme Court of this state. Article V, § 3, Constitution of Missouri, V.A. M.S. Defendant alleges the trial court erred “ * * * in refusing to submit any :df defendant’s instructions to the jury, and in doing so denied to him the equal protection of the laws as provided by * * * ” the Constitutions of Missouri and of the United States, and of the amendments thereto. There are also two references to « * * * the presumption of innocence * * These allegations are insufficient to divest this court of jurisdiction. State v. Brookshire, Mo., 325 S.W.2d 497 (transf, to Mo.App., 329 S.W.2d 252); State v. Euge, Mo.App., 349 S.W.2d 502 at [1-3], pp. 503-504.

The attacks which the defendant makes upon the information are without merit. It plainly charges that on July 16, 1960, in St. Louis County, the defendant, with intent to cheat and defraud, obtained $250.00 from the Lemay Bank and Trust Company, by issuing his check drawn upon the Chippewa Trust Company, knowing that there were no funds in the latter to pay the check upon its presentation. The information follows the wording of the statute and alleges all the facts necessary to bring the defendant within the provisions thereof. State v. Kaufman, Mo.App., 308 S.W.2d 333.

The “plea in abatement” which the defendant urges the trial court should have sustained was originally filed in another trial, arising out of this same occurrence, which resulted in a hung jury. This matter also brings into consideration the defendant’s contentions of error with regard to the trial court’s action in proceeding with the trial on September 26th, 1960, over his objection. The transcript which the defendant prepared, and which the State, by the Prosecuting Attorney for St. Louis County, approved, contains two recitations of what happened on the day of, and just prior to, trial. The record proper states, and defendant admits it so states, that on the 20th of September, 1960, the defendant was appearing on another cause before the trial court and was informed that the cause would be tried September 26th. The record proper also sets out that on that day, “Defendant appears in person and as attorney pro se also announces ready for trial. Examination of jurors on voir dire begun, progressed and concluded, at the hour of 3:10 P. M. 18 qualified and competent jurors are found. State and defendant granted till tomorrow morning at 9 :30 A. M. to make their respective challenges.” However, defendant has also included in the transcript what he contends to be “ * * * the true record as it happened and in direct conflict to the record as made.” In that portion of the transcript, he contends he orally objected to trial on the 26th because the case had been previously continued until October 17th; that he filed the amended plea in abatement which he had filed in the case that resulted in a hung jury; and that he was “ * * * coerced into trial of the cause without a hearing on his plea of abatement as filed.” Our concern that the defendant not be penalized because he has no counsel cannot be extended to accepting a version of what happened that is not only admittedly not included in the official record of the proceedings but actually contradicts that record. Defendant does not allege that his defense was in any way hampered by this action of the trial court except that he wanted to file certain pleas, such as in abatement, which the record discloses he in fact did file on the 27th of September in his motion to discharge the jury and declare a mistrial for lack of jurisdiction in the trial court. A perusal of this motion discloses that it is based on the contention that the cause was improperly heard on that day, a matter above disposed of adversely to defendant, and upon the contentions that: (1) until the plea in abatement had been ruled, the court could not continue; and, (2) that if the plea in abatement was overruled, defendant could appeal that ruling and thus prevent the trial from proceeding. These contentions are without merit. The record discloses that the trial court did in fact overrule this “Plea In Abatement.” Moreover, although in his motion for new trial and in the notice of appeal he has filed, the defendant seeks to appeal this specific action of the trial court, he cannot do so. We specifically ruled this same point adversely to the defendant in State v. Euge, Mo.App., 349 S.W.2d 502 at [5], page 504. Neither is there any provision in the Criminal Code to prevent the trial court from proceeding when, to be doubly sure it was proceeding properly, it overruled such a motion. In State v. Euge, Mo.App., 349 S.W.2d 502, the defendant had failed to assign as error in his motion for new trial the overruling of his “Plea In Abatement.” Evidently learning from experience, defendant included such an assignment of error in the motion for new trial in the instant case. We pass therefore to a consideration of the merits of such an assignment of error.

The “Amended Plea In Abatement” alleges that “ * * * a few days prior * ⅜ * ” to the date on which the check incident occurred, a magistrate action was filed by Atomic Fireworks, Inc. of Missouri, hereinafter referred to as Atomic, against the defendant upon a debt that company alleged defendant owed it; that this action was by attachment and a “ * * * writ of garnishment * * * ” was issued therein and served upon the Lemay Bank and Trust Company; that defendant was not aware of this proceeding; that the affidavit upon which the magistrate issued the attachment was defective on its face and not in accordance with “Section 521.060 of the R.S. of Missouri, 1949 * * that defendant was not personally served nor was any other service had upon him in the action instituted by Atomic; that “ * * there was defective service upon the said Lemay Bank and Trust Company, as garnishee ; * * * ” that the petition in the action filed by Atomic failed to state a cause of action against the defendant in that it failed to allege “ * * * the place of and the date, and time, and the manner in which the said debt was due * * * ” and further failed to state where plaintiff therein or this defendant resided, “ * * * or the circumstances by which the said debt was contracted or any fact giving said court legal and valid jurisdiction thereof.” The “Amended Plea In Abatement” then alleged that the magistrate court in the Atomic case had no jurisdiction to proceed in that case and therefore the Lemay Bank and Trust Company “ * * * was under no legal duty or obligation to respect the said attachment and garnishment or fear any consequences therefrom * * In short, the defendant sought to try the validity of the attachment issued in the Atomic suit in this action, and contends it was preju-dicially erroneous not to do so.

The amended plea in abatement filed in the action which resulted in a hung jury was verified by defendant’s affidavit. See § 545.830, RSMo 1959, V.A.M.S. The function of a plea in abatement is to bring to the court’s attention matters outside the record which render the indictment or information invalid, State v. Hughes, Mo.App., 223 S.W.2d 106 at [4-7], page 109. For example, in State v. Bright, Mo.App., 263 S.W. 559, the defendant set up in such a plea the fact that she was compelled to appear and testify before the grand jury which later indicted her without having been advised that she was being investigated or the nature of the inquiry. The evidence thus procured was considered and relied upon in securing the indictment against her. The distinction between a matter of that nature, which directly attacks the validity of the indictment, and the matters contained in this “Plea In Abatement” is obvious. In the instant case, the best that can be said of the matters pleaded in the “Plea In Abatement” was that it constituted a defense to Atomic’s action. The allegations therein in no way rendered invalid or void this information. The trial court properly overruled what defendant designated a plea in abatement.

There is no merit in defendant’s contention that he should be granted a new trial because the trial court refused to allow him a continuance to apply to this court for a writ of prohibition. It would be ridiculous to give him a new trial so that he could present to us in an application for such a writ the very contentions as to lack of jurisdiction he stated in his “Motion To Discharge Jury And Declare A Mistrial For The Lack Of Jurisdiction Of This Court To Proceed In This Cause”, which he alleges the trial court erroneously overruled. These matters have now been presented to us by his allegations in his motion for new trial, and all are herein ruled adversely to defendant.

We now come to a consideration of those allegations of error contained in the defendant’s after trial motions that require a •consideration of the evidence. Mr. Wind, president of Lemay Bank, testified that Euge had had an account at the bank in the past; that the bank was served with a garnishment with respect to that account and a writ of attachment on Friday, July 11, 1958; that at that time the balance in the defendant’s account was $375.42; that he talked with the defendant on Monday, July 14th, showed him the papers served on the bank and explained to him that for this reason the bank would not honor any items drawn against the account. On cross-examination he testified the balance in the account as of trial (September 27, 1960) was $500.00; that the bank was advised hy its counsel to honor the writ of attachment, although he did not know what investigation of the validity of the attachment was made, if any; and that the bank has a charge-back system whereby any bad check would be charged against the customer’s account. The defendant repeatedly cross-examined the witness on whether or not he knew that “ * * * the garnishee’s duty is to definitely check into such an attachment ?” and other matters pertaining to the validity of the attachment. In view of our ruling herein upon the at-tempt to plead the invalidity of the attachment as a plea in abatement, it will not be necessary to include that testimony.

Mrs. Murray testified that she was the drive-in window teller at Lemay Bank on the occasion when the defendant presented the check drawn on the Chippewa Trust Company, and that he took $171.13 of the .$250 thereof in cash, and deposited $78.87. At the opening of his cross-examination of this witness, the defendant admitted that he issued the check referred to. Mrs. Murray’s further testimony was that defendant told her he had over the amount of the check on deposit; that in reliance thereon she cashed the check; and that defendant in no way prevented her from calling the Chippewa Bank but that she did not do so.

Mr. Wind then resumed his testimony and stated that the check was returned to the Lemay Bank from the Chippewa Bank marked “No account”; that the tellers may not have been “specifically” informed of the attachment but the account was “flagged”; that this means that a warning was put on the account.

Sam Antonacci testified that his duties at the Chippewa Bank were to supervise the posting of all checks and deposits, take care of checks returned for various reasons, and handle the general bookkeeping of that bank; that the defendant opened an account at the Chippewa Bank in May of 1952; that on September 16, 1957 this account had a deficit of 62‡, and the account was closed as of that date; that sometime later they .received a deposit of $4.00 in cash which the officers of his bank instructed him to return to the defendant by “treasurer’s check” with the information that they did not want defendant’s account; that this was done by a letter accompanying the check, and the witness identified the check for $4.00 cashed by defendant, and a copy of the letter sent to him. On cross-examination this witness testified that the general banking procedure as to charge-offs was that such are not done when the funds in the account are attached, or where the charge-off would result in an overdraft.

Robert G. Burridge testified that in 1958 he was an Assistant Prosecuting Attorney for St. Louis County and that he represented the state at the defendant’s preliminary hearing; that the defendant then testified that he cashed this check at Lemay Bank, received $171 and some odd cents in cash, and deposited the remainder, and that he then knew he had no funds in the Chippewa Trust Company. Cross-examination was taken up with defendant presenting his contention that since he had a deposit in the Lemay Bank sufficient to cover this check, he could not be defrauding that bank which would charge the check against his own money which it held, asking the witness whether or not in his opinion as a lawyer this contention was correct, and with the witness’s explanation that it was not, for the reason that defendant had obtained money that the bank was not entitled to pay out because of the attachment and might have to replace and pay to Atomic. The matter is not presented for our ruling, but the entire line of questioning was improper, over the repeated valid objections interposed by counsel. Defendant did not ask questions but made abstract statements, and attempted to argue legal conclusions with the witness. The same matters were repeated over and over again.

The State having rested, and the defendant’s “Motion For Acquittal” having been overruled, the defendant presented the clerk of the magistrate court of Jefferson County as his first witness. By this witness and over the objections of the State, the defendant had read into the record the minute entries in Atomic’s action against the defendant in which the attachment heretofore referred to was issued. It is not necessary to go into these more fully than to state that by the date of trial the circuit court of that county had issued a preliminary writ of prohibition directed to the magistrate court of that county, and there the matter rests.

Jacob Pfeiffer, deputy constable, testified that he did not know the defendant personally and if he had served any papers in Atomic’s case on defendant, did not remember it.

Fred J. Hoffmeister, attorney for Lemay Bank, was called as a witness and testified that he examined the attachment served on that bank and gave the bank his opinion as to it, but refused, on the grounds of privilege, to relate what advice he gave the bank with regard to the attachment. However, he later gave as his opinion that there were no irregularities appearing on the face of the paper served on the bank.

The defendant then took the stand. Fie testified that when he was informed by the Lemay Bank of the attachment, “ * * * I looked at it and I told them that there was no service on me at the time and that it was of no force and value, which I knew because of previous study * * He further testified that he cashed this, check * * * with the intention that it was the same as and no different than a. Lemay Bank check that would be directly charged back against my account and I did that to gain the rightful possession of my money and my property that the Lemay Bank was withholding from me without any due process.” On cross-examination he verified Wind’s testimony that he was. told of and even shown the attachment f that he knew he had no account at the-Chippewa Trust; and that it was his. thought that since he had an account in the Lemay Bank he could cash a check at that bank drawn on any bank because “ * * it would have the same force and effect, it would be charged off as that check, as their check.” The defendant was then asked if he had ever before been convicted of issuing bad checks and testified that he had been convicted “On the other half of this-account, which is on appeal in this court. Q. Have you ever been convicted before?' A. There was one in the City on an insufficient fund check, which is also on appeal in the St. Louis Court of Appeals.”' The transcript at this point contains this notation, “(appears the court reporter omitted something here; to be added in a supplemental transcript if anything.)” No-objection is shown in the transcript as prepared and filed by the defendant nor was-any supplemental transcript filed. Accordingly, the allegation of error that the trial court failed to direct a mistrial because of the action of the state in introducing such matters into the trial need not be ruled upon.

This concluded the evidence, and upon overruling the “Defendant’s Motion For Acquittal”, the trial court instructed the jury. We find no error in the instructions given by the court. Instruction No. 1 required the jury to find “ * * * beyond a reasonable doubt * * * ” that the defendant “ * * * unlawfully and knowingly * ⅜ * ” in order to obtain monies in the value of $250.00, with intent to defraud, uttered this check, and further required them to find that at the time of utterance defendant knew he had “ * * * no sufficient funds in or credit with said Chippewa Trust Company * * * ” and upon so finding authorized a verdict of guilty and punishment as stated in the ' statute, and “ * * * unless you find all the facts to be you will acquit the defendant.” There is no doubt that this instruction required the finding of all the required elements of the offense. Neither can there be any doubt but the submissions were amply supported by the evidence, and that allegation of error is ruled adversely to appellant.

Instruction No. 2 was the usual and -repeatedly approved “presumption of innocence” instruction, State v. Velanti, Mo., 331 S.W.2d 542. Instruction No. 3 was a cautionary “credibility of the witnesses” instruction, correctly stating the ■law thereto'. Instruction No. 4 informed ■ the jury that “ * * * argument of counsel is for the purpose of aiding you to reach a proper verdict by refreshing in your minds the evidence * * * ” but cautioning the jury that it was their duty to be governed by the law as given them by the. court in the instructions, and “ * * * to be governed in your deliberations by the evidence as you understand it * * Instruction No. 5 required that all jurors agree to the verdict, and that the foreman sign it. It was not erroneous .to give these instructions. We might here point out that this transcript fails to disclose any objection by the defendant to the giving of these instructions, State v. Rush, Mo., 286 S.W.2d 767; State v. Lawson, Mo., 290 S.W.2d 84; but we have nevertheless reviewed them.

The trial court refused to give Instruction A, which stated that the State must prove beyond a reasonable doubt that a five-day notice that his account was insufficient was given to the defendant prior to his arrest, and directed acquittal, absent such a finding. In State v. Kaufman, supra, this court held that proof of the giving of this notice provided for by § 561.470, RSMo 1959, V.A.M.S., is not an essential element of an offense under § 561.460, supra, but that failure to give the notice would prevent the State from availing itself of the presumption of intent created by § 561.470, supra. Under the evidence in this case, there was no need to rely upon the presumption. In any event, even payment within the five days (an event that did not here occur) would only have abrogated the presumption. It would not have constituted a defense to the charge requiring, as this instruction stated, acquittal. State v. Kaufman, supra.

Instructions B, C, F, and G, presented the “charge off” theory defendant attempted to present throughout these proceedings, and also the theory that the attachment was invalid. Each of these instructions directed acquittal on those theories, “ * * * notwithstanding the fact that defendant knew that he did not have any funds or credit with the Chippewa Bank and Trust Company * * *” and also notwithstanding the fact of the attachment on his funds in the Lemay Bank. We think it clear from what has been said herein that such an instruction would have amounted to an adoption by the court of defendant’s defenses as a matter of law, and these instructions were correctly refused. Instructions D, E, and H were cautionary instructions that perhaps could have been given, although they were not as clearly stated as those covering the same matters given by the court, but it is not reversible error to refuse such instructions when the matters they present were covered by other instructions correctly stating essentially the same matter. We find no error in the trial court’s actions with regard to the giving and refusal of these instructions.

We find no reversible error in this record. The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

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

RUDDY, J., not participating.


author: ANDERSON, Presiding Judge.

text:
    Donald W. SANDAU (Plaintiff) Respondent, v. Constance McLAUGHLIN (Defendant) Appellant.
    No. 30887.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.
    Rehearing Denied Sept. 11, 1962.

      Fred J. L. Schuler, St. Louis, for appellant.
    William G. O’Donnell and Edward C. Schneider, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is a suit instituted by Donald W. Sandau, plaintiff, to recover the value of certain materials furnished by him, and work and labor performed, in the construction of a residence for defendant. The claim stated in the petition was for commission alleged to be due in the amount of $1,857.16 together with the sum of $333.75 for materials furnished, or a total of $2,-190.91. All of said items were alleged to be of the reasonable value of $2,190.91. Plaintiff also sought to establish a mechanic’s lien in said amount upon said building. By a counterclaim defendant sought to recover damages in the sum of $7,925.20, which she alleged resulted from plaintiff’s breach of duty under his contract. The cause was referred to a referee. The referee, after a hearing, recommended that plaintiff’s claim be denied except for the one item of $333.75, the cost of rock paid for by plaintiff, and that defendant recover nothing on her counterclaim.

Recovery was denied, except for the item of $333.75, on the theory that there had been an accord and satisfaction between the parties which was valid and binding. Thereafter, the trial court confirmed the Referee’s report and entered judgment in accordance with his recommendations. From this judgment defendant has appealed.

The facts in this case as developed by the evidence are that defendant employed plaintiff as general contractor to construct for her a residence in St. Louis County. It was agreed between the parties that plaintiff’s fee would be 10% of the cost of the labor and materials that went into the work. Defendant opened an account at the Lindell Trust Company and from time to time deposited funds therein for the payment of bills incurred in the erection of the house. Plaintiff was authorized to draw checks against this account to pay bills incurred in the erection of the house.

Construction was started in July, 1952. The work progressed, but as it did defendant became increasingly dissatisfied with plaintiff’s management and supervision, particularly with the absenteeism of plaintiff, the slowness of the carpenters, excessive costs and plaintiff’s failure to render an account from time to time. Finally, on December 18, 1952, plaintiff was summoned to the office of defendant’s attorney, Frank Lee, for the purpose of rendering an account of his stewardship. Plaintiff appeared at Mr. Lee’s office with a hastily prepared account and was told by Mr. Lee that this was inadequate, and that he should return to his office, on December 20, 1952, with all records. Plaintiff appeared at Mr. Lee’s office on this date, at which time there was a conference between plaintiff, Mr. Lee, and defendant. At this conference defendant and Mr. Lee accused plaintiff, among other things, of paying carpenters when they were not on the job, overpaying certain bills, charging a commission on his own labor as a bricklayer, slow progress of the work, and breach of trust for having issued checks on the account in the Lindell Trust Company for the payment of personal bills ranging from life insurance premiums to bills for alfalfa seed. These are the matters which were embraced in defendant’s counterclaim. Plaintiff conceded the issuance of checks for his personal account, but insisted that this was in part payment of his 10% commission. The referee found that up to the time of this meeting the amount of money plaintiff had drawn, either by way of checks to himself or in payment of personal bills, totalled $2,365.24, and that said sum did not exceed 10% of the amount expended for labor and material up to that time.

At this meeting the parties reached the following agreement:

a. Plaintiff agreed to write a check to the order of defendant for the sum of $861.47, the balance then in the checking account at the Lindell Trust Company. This he did forthwith.

b. Defendant would henceforth pay all bills after they were approved by plaintiff.

c. Plaintiff would continue on the job in the same capacity, until the building was completed and would forego any additional compensation or commission or any claim against defendant. Defendant’s attorney testified that the above was in consideration of defendant’s agreement to refrain from “doing anything about his (plaintiff’s) deficiencies.”

After the conference of December 20, 1952, plaintiff reported back to work on defendant’s construction job and continued on the job until January 23, 1953. During this period he acted as supervisor, approved bills, delivered them to defendant, who-paid them out of her own account. Plaintiff’s services were terminated January 23, 1953. He testified he quit because of the-misunderstandings with defendant; that there was no further point in antagonizing each other; that the job was near-completion and that he needed employment. Defendant testified that plaintiff told her he was “calling a work stoppage”; that she went to the site of the construction- and found plaintiff trying to persuade subcontractor Grundorf to take his men off the job. Defendant then told plaintiff he-was a trespasser, and he left the premises. From this point on, defendant dealt with the subcontractors herself, supervised the-job to completion, and paid the bills as they were presented.

Appellant’s first point is that the court erred in awarding judgment for plaintiff in the sum of $333.75, the amount plaintiff paid to the Overland Coal & Contracting Company for paving rock claimed to have been applied to the driveway on-appellant’s premises. The specific point urged, for the first time on this appeal, is that as to said item, the suit was premature for the reason that payment by plaintiff of this account was not made until after suit was brought. The record bears out appellant’s contention that the Overland bill was not paid at the time this suit was instituted, but was paid subsequent thereto and long before trial, after Overland Coal & Contracting Company had secured a judgment for said amount. However, it does appear that plaintiff, as contractor, had, prior to suit, become obligated to pay said account; hence, in our opinion, his suit against the owner of the premises was not premature.

The point is without merit for a further reason. An examination of the transcript reveals that the point was never called to the attention of the referee or the trial court. When the evidence in support of the claim was offered and received, there was no objection made that the suit was premature as to this item. Defendant offered evidence, which if believed, would cast doubt on the validity of the claim, thus treating the matter as properly triable. The point was not urged in defendant’s exceptions to the Referee’s report, or in defendant’s motion for new trial. It appears for the first time in appellant’s brief on this appeal. Under such circumstances defendant should be regarded as having waived the point. The question of the premature institution of the suit may not be raised for the first time in the appellate court. William R. Bush Construction Co. v. Withnell, et al., 190 Mo.App. 33, 175 S.W. 260. We make the same ruling with respect to appellant’s point, namely, that plaintiff cannot recover because he failed to notify defendant of the suit filed against him. Furthermore, there was no contention made by plaintiff that defendant was bound by the judgment against plaintiff in the suit brought by Overland Coal & Contracting Company. The validity of the claim was an open question litigated at the trial of the instant suit without regard to the result reached in that case.

It is also urged that the court erred in approving the report of the referee that an accord and satisfaction was reached at the meeting between plaintiff, defendant, and her lawyer on December 20, 1952, for the reason that since plaintiff left the job before its completion there was no satisfaction.

From an examination of the record we are convinced there is no merit in the point made. Under the law it is not always necessary that an accord be executed. A new promise may itself be accepted in substitution of an existing claim, and 'when so accepted in satisfaction it extinguishes the claim or demand previously existing, and constitutes a good accord and satisfaction whether carried out or not. Priest v. Oehler, et al., 328 Mo. 590, 41 S.W.2d 783. If the new promise is not performed the remedy of the one relying upon it is for the breach of the new promise, and not upon the original demand. 1 C.J.S. Accord & Satisfaction, § 22, p. 489.

Whether a new promise is accepted by a claimant as a satisfaction is a question of intention on the part of the creditor. From an examination of the evidence adduced we are led to believe that on December 20, 1952, the parties intended to settle the differences between them and entered into a new agreement for the completion of the work. Defendant’s intent to accept the new promise as a satisfaction is clearly shown by the fact that she resisted plaintiff’s claim on the theory that by reason of the agreement of December 20, 1952 plaintiff could not recover. The point is ruled against appellant.

Appellant’s next point is “an accord induced by fraud is not binding on the innocent party, where the wrongdoer withholds information vital and basic to the accord known to him, but not within the knowledge of the other party.” The foregoing is but an abstract statement of the law, and is therefore not a sufficient assignment of error. It preserves nothing for review.

It is next urged that the court erred in denying recovery for damages for over-payments made to carpenters and a carpenter foreman in violation of the Defense Production Act of 1950, 50 U.S.C.A. Appendix, § 2061 et seq. The record shows that the payments in excess of the wages fixed under this Act were made, not by plaintiff, but by the subcontractors, who employed the men. Hence there was no violation of the Act by plaintiff. The point is ruled against appellant.

Appellant’s final point is that an agreement and its performance cannot constitute an accord and satisfaction of a claim or demand, the existence of which was unknown to the creditor when he made the agreement. This assignment of error is but an abstract statement, and too general to present anything for review.

Finding no reversible error in the record, the judgment is affirmed.

WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.

RUDDY, J., not participating.


text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY, a corporation, Plaintiff, v. Gertrude MILDENBERGER, C. M. Walters, Jr., Successor Trustee, Gloria Lee Realty Company, a corporation, and Hugh Marlow, Defendants, Gertrude Mildenberger and Hugh Marlow, Defendants-Appellants, C. M. Walters, Jr., Successor Trustee, and Gloria Lee Realty Company, a corporation, Defendants-Respondents.
    No. 31020.
    St. Louis Court of Appeals. Missouri.
    July 17, 1962.
    Motion for Rehearing or Transfer Denied Sept. 11, 1962.

      Wilson, Cunningham, McClellan & Gunn, St. Louis, for plaintiff.
    Arthur Kreisman, St. Louis, for appellants.
    Harry Gershenson, St. Louis, for respondents.
   BRADY, Commissioner.

The question presented by this appeal deals with the ownership of a fund of $3,-389.43, which is the amount of a fire loss on a building insured by the Northwestern National Insurance Company, hereinafter referred to as Northwestern. This fund was paid into the court in an interpleader action by Northwestern.

The pleadings and proof present the following set of facts. Mrs. Mildenberger was the owner of a building at 4957 Terry Avenue in St. Louis, Missouri, and had purchased from Northwestern policies of fire insurance upon that building. There was a note and mortgage securing an in■debtedness on the building, and the Gloria Lee Company was the mortgagee and owner and holder of the note and deed of trust. On January 20, 1960, while these policies were in full force and effect, the building was damaged by fire. At this time the total amount due on the note was in excess of $10,000.00. Mrs. Mildenberger made claim for the loss and employed the defendant-appellant Marlow to assist in “ * * * determining the amount of said loss and adjusting and collecting the proceeds of said insurance policies * * * ” and gave to Marlow “ * * * some character of right, title or interest * * * ” in the proceeds of the insurance which, by his answer, Mar-low alleged was 10% of the amount recovered by Mildenberger plus certain “emergency service” charges. Marlow claims a total of $547.00 by his interplea. The loss was adjusted at $3,389.43, but when this was finally agreed upon does not appear. Following the adjustment of the loss but before payment by Northwestern, the Gloria Lee Company, foreclosed, Mrs. Mildenberger being in default, and the foreclosure sale was held on May 6, 1960. The Gloria Lee Company bid in the property at the foreclosure sale for $10,927.77, the exact amount due to it on the note and deed of trust plus the costs of the sale. The trustee ■executed his deed to the Gloria Lee Company, and it made claim upon Northwestern for the proceeds of the adjusted fire loss. Since each party claimed the entire fund, Northwestern paid the fund into the court and by interpleader prayed the court to which party it was to go, and for $500.00 for its attorneys’ fees.

The note and deed of trust on this property were introduced into evidence and show that the original amount of indebtedness was $13,000.00 on date of July 3, 1951. The pertinent provisions of the deed of trust are set forth later herein. The uniform standard mortgage clause was attached to the deed of trust, and in its pertinent part reads:

“Loss or damage, if any under this policy shall be payable to mortgagee or trustee, as interest may appear, and this insurance as to the interest of the mortgagee or trustee only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceeding or notice of sale relating to the property, nor by any change in the title or ownership of the property.”

The trustee’s advertisement of sale is also set out in full in the transcript. It is in the usual form, mentioning only the real estate as the subject of the sale and saying nothing about the insurance or the proceeds therefrom.

Walters was the only witness at the trial. Over the objection of the appellants he testified that before crying the sale he announced the terms and conditions thereof “ * * * and among other things announced that the improvements on the real estate being offered for sale had been partially destroyed by fire and that the property was being offered for sale in its then condition unrestored but that the fire loss to the premises had been adjusted at $3,-389.43 and that said amount being the proceeds of the fire insurance on said premises would by the terms of sale pass to the purchaser as part of said real estate.” Walters further testified that the mortgagee purchased this property at the foreclosure sale, bidding $10,927.77, which was the exact amount due it under the note and deed of trust plus the costs of the sale; that he executed his deed to the buyer; that prior to the sale he had “ * * * probably ten or fifteen telephone calls about the property * * * ” and told the callers that the purchaser at the sale would also receive the insurance money; and that Gloria Lee Company has since resold the property for $7,000.00 and has sustained a loss of about $4,000.00. The appellants preserved their objection to the entire testimony dealing with the resale of the property, the announcements of the trustee at the sale, and the telephone conversations.

The trial court directed that the clerk pay the entire fund “ * * * less the costs of this proceeding” to the trustee Walters and to the Gloria Lee Company. It is the contention of the appellants that the trial court erred in so doing because Walters and the Gloria Lee Company claim the fund under an indebtedness which had been fully satisfied by the sale of the mortgaged premises. In short, they refer to the provisions of the standard mortgage clause, reading “Loss or damage, if any under this policy shall be payable to mortgagee or trustee, as interest may appear * * * ” and urge that the interest of the mortgagee and trustee could not appear because it was extinguished when the indebtedness was fully satisfied by sale of the mortgaged premises. The appellants further contend that whatever Walters did or said at the foreclosure sale, it could not affect the rights of these parties. Neither, they urge, should any significance be given to the testimony by Walters concerning a loss suffered by the Gloria Lee Company on resale of this building. They contend that any such loss can not be urged by the Gloria Lee Company any more than Mrs. Mildenberger could contend that she was entitled to a share of the profit, had the Gloria Lee Company made one on the resale. The respondents contend that under the provisions of the deed of trust and the standard union mortgage clause the Gloria Lee Company is the proper party to ultimately collect the proceeds of the insurance. They also urge that the trial court, under its general equity powers, had a right to prevent the unjust enrichment of Mrs. Mil-denberger, who no longer owned this property, and to prevent the unjust detriment to the holder of the deed of trust and the purchaser of the property at the foreclosure sale which would result from awarding her this fund.

The instant case was presented by brief and in argument by all the parties concerned as a case of first impression in this state. However, the principles of law involved in the determination of the issue here involved have received the attention of text writers and the appellate courts of certain of our sister jurisdictions. See Cooley’s Briefs On Insurance, 2d Ed., Vol. 7, page 6298, where that writer cites Griswold v. American Central Insurance Company, 1 Mo.App. 97, an 1876 decision of this court, affirmed by the Supreme Court in 1879 in Griswold v. American Central Insurance Company, 70 Mo. 654. A careful analysis of that case will indicate that it was not decided upon the issue here involved. See also Couch Cyclopedia of Insurance Law, Vol. 5, § 1215-B, page 4436; Appleman on Insurance Law and Practice, Vol. 4, § 2268; Power Building & Loan Association v. Ajax Fire Insurance Company, 110 N.J.L. 256, 164 A. 410; Reynolds v. London & Lancashire Fire Insurance Co., 128 Cal. 16, 60 P. 467, 79 Am.St.Rep. 17; and State ex rel. Squire, Superintendent of Banks v. Royal Insurance Co. et al., 58 Ohio App. 199, 16 N.E.2d 342.

In Prudential Insurance Co. v. German Mutual Fire Insurance Ass’n, 228 Mo.App. 139, 60 S.W.2d 1008 at l. c. 1009, the effect of a union mortgage clause and how it differs from an “open mortgage clause” is stated. See also Prudential Insurance Co. v. German Mutual Fire Insurance Association of Lohman, 231 Mo.App. 699, 105 S.W.2d 1001 at l. c. 1005. It is the accepted rule in this state, as it is in most, that the standard union mortgage clause constitutes a separate and distinct contract between the mortgagee and the insurance company up to the amount of the debt secured. The consideration for issuance of the fire policy to the owner of the property is also the consideration for the company’s promise to pay the mortgagee under the mortgage clause, Prudential Ins. Co. v. German Mutual Fire Insurance Association, supra; Swihart v. Missouri Farmers Mutual Tornado, Cyclone & Windstorm Insurance Co., 234 Mo.App. 998, 138 S.W.2d 9 at l. c. 12, 13; Wisman v. Hazel Dell Farmers Mutual Fire and Lightning Ins. Co., 230 Mo.App. 489, 94 S.W.2d 908; Gordon v. Northwestern National Ins. Co., 228 Mo.App. 1008, 77 S.W.2d 512. Following this analysis to its logical conclusion, since this separate contract of insurance could not logically be affected by the acts of another, the mortgagor, not actually a party to the contract of insurance between the mortgagee and the company, the mortgagee’s later acquisition of title would merely constitute an increase in his interest and could not adversely affect the mortgagee’s right to the proceeds of the insurance, provided the loss was less than the amount due on the note and deed of trust. So it was held in a case involving an attempt by an insurance company to avoid payment to a mortgagee who had become an owner through purchase at foreclosure sale for the full amount of the indebtedness, Prudential Insurance Co. v. German Mutual Fire Insurance Ass’n, supra. However, in that case the foreclosure sale took place, and the mortgagee became the owner, before the fire occurred. The issue actually presented and decided in that case was whether the insurance was still in force or whether the provisions in the policy providing that notice be given the company of a change in ownership was violated under the factual situation there present, thus voiding the policy.

Realizing that strict adherence to this contractual theory ignored the real basis for the insurance, in Swihart v. Missouri Farmers Mutual Tornado, Cyclone and Windstorm Ins. Co., 234 Mo.App. 998, 138 S.W.2d 9, this theory was placed in its proper perspective when, at l. c. [3-6] page 13, the opinion states:

“The above case holds that the ‘union’ clause operates as an independent contract of insurance, which cannot be defeated by a breach on the part of the mortgagor of the conditions of the policy, or solely by his act. Observe that, while it is an independent contract, it is such only for a limited purpose, so that the act of the mortgagor alone and of itself cannot defeat the right of the mortgagee. Nevertheless, it is not an entirely disconnected contract. A recovery by the mortgagee, of necessity, inures to the benefit of the mortgagor. The recovery is to pay, in whole or in part, the debt of the mortgagor, and in substance is as much for his benefit as if he recovered the loss and applied it otherwise than on the mortgage indebtedness. As between the parties the mortgagee is entitled to have the loss paid applied on the indebtedness owed to him by the mortgagor. In the absence of fraud or collusion, a recovery by either bars the other, and protects the insurance company. Where the suit is brought by the mortgagor, the insurance company, for its own protection, is entitled by timely application to have the mortgagee brought in as a party.”

When the fire occurred, the Gloria Lee Company, mortgagee, was a creditor of Mrs. Mildenberger in the approximate amount of $10,000.00. For this debt it had the security of its deed of trust on the insured property and enforceable by foreclosure, a lien upon the insurance proceeds to the extent of the debt, and a right to pursue its debtor, Mrs. Mildenberger, on her personal liability. Collection in full by any of these methods would terminate the right to pursue the remaining remedies. The Gloria Lee Company elected to pursue the remedy of foreclosure and sale as provided by its deed of trust. See Chapter 443, RSMo 1959, V.A.M.S., and in particular § 443.410 of that chapter. Had the sale brought less, after expenses provided for in the deed of trust, than the amount due on the note and expenses, then the Gloria Lee Company could have proceeded against Mrs. Mildenberger personally for the deficiency. Or, had it the insurance money then in its hands, it would have been entitled to apply so much thereof as was necessary to completely pay the note and pay the surplus, if any were left, to Mrs. Mildenberger, Hartford Fire Insurance Company v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066 at l. c. [4, 5] page 1071. On the other hand, if the net proceeds of the sale had brought more than that indebtedness, such surplus would have belonged to the mortgagor. This has long been the rule in Missouri, Warner v. Veitch, 2 Mo.App. 459. The surplus would have been impressed with a trust in favor of the mortgagor, Dalton v. Peters, 8 Cir., 119 F.2d 494. Recognizing the law was as stated, the deed of trust specifically provides that the balance after all payments on encumbrances and expenses is to be paid to the mortgagor.

The respondent contends that the trustee had the right to collect the insurance. Assuming for the purpose of illustration only that such is the case, since foreclosure had already taken place, the mortgagee could no longer exercise its option to apply these proceeds to the restoration of its security to the condition in which it was before the fire and would have had to be applied to the indebtedness. See Hartford Fire Insurance Co. v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d [7, 8] page 1072. These funds would have had to be added to the amount realized from the foreclosure sale and then the total of these two funds would have had to be paid out by the trustee in the manner stated in the deed of trust and set forth herein. Had the total of the net proceeds of the sale plus the insurance money exceeded the indebtedness and the cost of the foreclosure, the surplus would have inured to the mortgagor. Had it been less than the amount of the indebtedness, the mortgagor would have been liable for the deficiency. So the fact is that even under the respondent’s assumption the result is the same. In no event was the Gloria Lee Company to collect more than the balance due on the note regardless of the source or sources from which such a collection might be made. It can not seriously be contended that the mortgagee could have kept the insurance proceeds and also have recovered in full the payment of the debt owed to it. Since early in our reported cases, the proceeds of the insurance to be paid to the mortgagee has been limited to the amount of the indebtedness, McDowell v. Morath, 64 Mo.App. 290.

This is merely a realistic recognition of the true purpose of the insurance which the deed of trust provides the mortgagor must purchase. That purpose is essentially the same as the purpose of the security covered by the deed of trust, and is to see that the money loaned is repaid. The very provisions of the deed of trust illustrate that this is so. The very first paragraph of the deed of trust following the note reads in its pertinent parts:

“TO SECURE the payment of which said note the party of the First Part has executed this Deed of Trust, and has also agreed with said Third Party, endorsees and assigns, * * * [to pay all taxes and assessments] * * * and also to keep the improvements upon said premises constantly and satisfactorily insured until said note is fully paid * * * [against certain losses such as fire, etc. to carry such other insurance as the note holder may require] * * * and the policies therefor to keep constantly assigned unto the said party of the Second Part and deposited with the party of the Third Part, for further securing the payment of said note, and the proceeds thereof apply toward the payment of said note. The holder of note is hereby given privilege and authority to make proof of loss and adjust and collect insurance. The trustee may assign policies to purchaser at foreclosure, and owner shall not be entitled to unearned premiums * * (Emphases supplied.)

The provision giving the note holder the privilege to adjust and collect the insurance must be read in context with the rest of the paragraph. When that is done, it is apparent that whatever privileges the holder of the note is given are for the purpose of securing the payment of the note. These privileges were never intended to extend beyond their ultimate purpose of protecting the security for the payment of the note. Once the note is paid, they have no further function. If the debt is not paid, the security covered by the deed of trust is to be available to pay it; and to see that the security, the property covered by the deed of trust, will be available to do so, the mortgagee is required to purchase insurance and the mortgagee given certain privileges as to that insurance. But it is the debt, the creditor-debtor relationship, that gives birth to the right to compel the mortgagor to purchase insurance and to collect the proceeds and serves as the supporting pillar for the whole structure so far as the mortgagee is concerned. Once that relationship is terminated, the reason for any claim on the part of the mortgagee on the insurance proceeds likewise evaporates. Surely it cannot be denied that purchase at the foreclosure for the full amount of the balance due on the note constituted payment and extinguished the debt. It would not logically matter whether that payment was made by a stranger or by Mrs. Mildenberger from other funds or in the method here involved, purchase by the mortgagee for the full amount of the balance due on the indebtedness. So long as the payment was made in the full amount of the indebtedness, it extinguished the debtor-creditor relationship and thus terminated the claim upon the proceeds of the insurance money which had inured to the benefit of the mortgagee upon the occurrence of the fire. A liability may be fixed by the occurrence of conditions which provide for its existence, such as the liability of the insurance company in the instant case to pay to the mortgagee became fixed upon the happening of the fire, but after it becomes thus fixed, it may terminate as to the party in whose favor it existed, here the mortgagee. In the instant case what caused that termination was the payment of the debt by purchase at the foreclosure sale for the full amount of the balance due on the note, and ended the creditor-debtor relationship of the mortgagee and mortgagor. See Aetna Insurance Company v. Baldwin County Building & Loan Ass’n, 231 Ala. 102, 163 So. 604.

In Hartford Fire Insurance Company v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066 at l. c. [7, 8] page 1072, this court held that the phrase, “as its interest may appear” in a standard union mortgage clause refers to the amount of the debt owed to the mortgagee and secured by the deed of trust and “ * * * does not refer to appellant’s (mortgagee’s) interest in the property.” Logically, and with adherence to the purpose of the provisions of the deed of trust requiring insurance which is to preserve the security covered by the deed of trust, this can be the only interest of the mortgagee. It cared only for the security as it affords a source of possible repayment of the money it loaned, and to that extent only. The interest of the mortgagee, the Gloria Lee Company, was in payment of the debt owed it by the mortgagor, Mrs. Mildenberger. It follows from the definition of that phrase in the Bleedorn case that this interest must not only appear, i. e. exist, at the date of the loss, but must also appear, exist, when the actual payment by the insurance company is to be made and must not have, between the fire and the date of payment, been extinguished by payment of the debt. In the instant case that interest was extinguished by the purchase by the mortgagee at the foreclosure sale and the resulting payment in full of the debt.

Section 507.060 R.S.Mo. 1959, V.A.M.S., our interpleader statute, has been held to be broader in scope than the former equitable remedy, but not to destroy or change the nature of interpleader as recognized in equity. Heinrich v. South Side National Bank in St. Louis, Missouri, 363 Mo. 220, 250 S.W.2d 345, at l. c. [5] page 348. The section is merely a procedural statute, Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17. Under the authority of the Heinrich case, upon the appearance by pleading and proof that the inter-pleader is properly filed — and here that matter was not even contested — a decree should have been entered dismissing Northwestern upon deposit of the fund into court. Failure to do so precludes any judgment entered at the interpleader stage from being final. However, in the instant case the appeal is not from any judgment entered at the interpleader stage of the case, as in fact none was then entered, but is from the final judgment and determination upon the merits between the claimants of this fund. It is to be noted that Northwestern was never discharged, nor was any action taken with regard to its plea for an allowance for its attorneys’ fees. Northwestern alleged that it was necessary to counsel and advise with its attorneys, to engage their services in the preparation and filing of the inter-pleader suit it presented, and prayed that $500.00 as reasonable attorneys’ fees be ordered paid out of the fund. Mrs. Milden-berger and Marlow admitted Northwestern’s allegations with respect to the necessity to employ attorneys, but placed the amount of the fee in issue. The Gloria Lee Company denied both the necessity on the part of Northwestern to employ attorneys and the amount of the fee. The matter was therefore at issue.

It is well settled that in a case where interpleader properly lies, the stakeholder is entitled to reasonable attorneys’ fees as part of his costs. See Concordia Fire Insurance Company v. Alexander, Mo.App., 50 S.W.2d 687; Grooms v. Mullett, 133 Mo.App. 477, 113 S.W. 683; Badeau v. National Life & Accident Insurance Co., Mo.App., 305 S.W.2d 876; Missouri Digest, Interpleader, 35. But in this case there was no evidence given upon the issue at all, and therefore we have no basis upon which to conclude that any certain amount we might allow would be reasonable. Certainly this is true where under the pleadings in this case some of the contestants objected to the allowance of the amount prayed by Northwestern. Accordingly, this is a matter which will have to be determined by the trial court after giving all the parties concerned a chance to be heard upon the issue.

Somewhat the same situation prevails with respect to Marlow’s claim for $547.00 of the fund. The parties did not specifically answer each other’s interplea, but filed their separate answers to Northwestern’s petition. In her answer Mrs. Mildenberger admitted employing Marlow, and admitted that he was to be paid out of the proceeds of the insurance. She did not admit his claim for $547.00, nor mention any specific amount. Neither was there any evidence upon this issue. It follows that the right, if any, Marlow has to receive $547.00, or any specific amount from this fund is a matter which must be determined by the trial court upon a hearing.

The judgment should be reversed and the cause remanded to the trial court with instructions to, upon hearing, determine the amount of the attorneys’ fees to be allowed to Northwestern and to enter its judgment allowing such fees to Northwestern. The trial court is also to determine the merits of Marlow’s claim and to award such portion, if any, of the fund to him as upon a hearing on the issue the court finds Mar-low entitled to. The balance of the fund paid into the registry of the court is to be awarded to Mrs. Mildenberger. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore reversed and the cause remanded to the trial court with instructions to, upon hearing, determine the amount of the attorneys’ fees to be allowed to Northwestern and to enter its judgment allowing such fees to Northwestern; and to determine the merits of Marlow’s claim and to award such portion, if any, of the fund to him as upon a hearing on the issue the court finds Marlow entitled to; and to award the balance of the fund paid into the registry of the court to Mrs. Mildenberger.

ANDERSON, P. J., and MARSHALL CRAIG and WILLIAM M. KIMBERLIN, Special Judges, concur.

WOLFE and RUDDY, JJ., not participating.