author: FANNING, Justice.

text:
    Bill KORNELL, Appellant, v. J. E. MONTGOMERY, Appellee.
    No. 7858.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1967.

      Pat C. Beadle, Clarksville, for appellant.
    Ewing Adams, Adams & Sheppard, Long-view, for appellee.
   FANNING, Justice.

A venue case. Plaintiff-appellee brought suit in the District Court of Gregg County, Texas, against defendant-appellant, to. recover liquidated damages for breach of a written contract of purchase and sale of real estate. Defendant-appellant filed ag[ plea of privilege to be sued in Red River County, Texas, the county of his residence. Plaintiff-appellee duly controverted the plea, relying upon Subsection 5 of Art. 1995, Tex.Rev.Civ.Stat.Ann., to maintain venue in Gregg County, Texas. The trial court, after hearing the evidence adduced, overruled the plea and defendant-appellant has appealed.

Appellant, as purchaser, and appellee, as seller, entered into a written contract for the purchase and sale of real estate located in Upshur County, Texas. Certain pertinent portions of the contract are quoted below as follows:

“1.
“The purchase price is One Hundred Twelve Thousand Five Hundred and No/100 Dollars ($112,500.00), payable as follows: The total purchase price shall be payable in cash at the time of the closing of this contract of sale and purchase.
At the time of the execution of this contract purchaser is depositing his check, in the amount of $15,000.00, drawn upon the Red River National Bank in Clarks-ville, Texas, payable to the Sellers, which check shall be held by the Escrow Agent herein designated until the time of the closing of this transaction, at which time it shall be cashed and applied to the purchase price; and the purchaser will, at said time of closing, pay the balance of the purchase price in cash.
* * * * * *
“5.
“Seller agrees, on or before June 1, 1966, to deliver such good and sufficient General Warranty Deed properly conveying said property to the purchaser, or his nominee, together with the title insurance policy; and purchaser agrees that, on or before June 1, 1966, when said deed is presented to pay the balance of the purchase price; but it is understood by the parties hereto that purchaser will be under no obligation to pay the balance of the purchase price before June 1, 1966.
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
“7.
“Should the purchaser fail to consummate this contract as specified for any reason, except title defects, or the failure of the seller to deliver the Deed of Conveyance and title insurance policy as hereinabove provided, seller shall have the right to said cash deposit represented by the above mentioned check as agreed liquidated damages for the breach of this contract.
“8.
“It is hereby agreed by the parties hereto that the East Texas Bank and Trust Company of Longview, Texas, shall be the Escrow Agent for both parties to this agreement, and that this transaction shall he closed at the office of said Escrow Agent at Longview, Texas, by June 1, 1966. * * *” (Emphasis added).

We have examined plaintiff-appellee’s pleadings and find that they are sufficient to aver a cause of action for breach of the contract in question by the defendant-appellant, and such pleadings adequately plead a cause of action for the recovery of the $15,000.00 liquidated damages specified in the contract.

Subsection 5 of Art. 1995 provides:

“Contract in writing.—If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” (Emphasis added)

In order to maintain venue under subsection 5 of Art. 1995, the plaintiff must prove: (1) an obligation in writing; (2) the execution by the defendant; and (3) that it is performable in the county of the suit. Hess v. Young, Tex.Civ.App., 160 S.W.2d 574, no writ (1942). Proof of the existence of the cause of action is not required. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942).

We think the record clearly shows that the above three requirements were shown in this case. (1) There was an obligation in writing, which was the contract introduced in evidence; (2) the evidence is undisputed that it was executed by the defendant; (3) and, as hereinafter held, we think the contract as it is considered from its four corners provides for performance in Gregg County, Texas, within the meaning of Subsection 5 of Art. 1995.

The written contract as shown by other provisions quoted, specifically provides that the transaction shall be closed at the office of East Texas Bank & Trust Company of Longview, Texas, escrow agent at Longview, Texas, by June 1, 1966. The office of said named bank "is a particular place” within Longview, Texas. The oral testimony of appellee Montgomery definitely places the location of said bank in Gregg County, Texas. Furthermore, this court will take judicial notice that Long-view, Texas, is the county seat of Gregg County, Texas. In this connection see Gulf Coast Aluminum Supply, Inc. v. Duke, Tex.Civ.App., 389 S.W.2d 480, no writ (1965) wherein it was stated in part as follows:

“The facts are undisputed that 1608 Timpson, Longview, Texas, is the house and home of appellee and this court will take judicial notice that Longview is the county seat of Gregg County, Texas. North Texas Tank Company v. Pittman, Tex.Civ.App., 290 S.W.2d 724; Houston Heating & Air Conditioning, Inc. v. Semands, Tex.Civ.App., 318 S.W.2d 777.”

In Heid Bros. Inc. v. Smiley, Tex.Civ. App., 144 S.W.2d 952 no writ (1940), it was stated in part as follows:

“Appellant contends ‘that the clause “payable upon delivery of bills of lading to the First National Bank of Paris, Texas,” designates the time at which the defendant is to pay and the agent of plaintiff to collect the pay, but does not designate the place of payment.’ We are unable to agree with that contention. As we interpret the contract, its plain and unambiguous terms bind the defendant to pay for the hay ‘in Paris, Texas,’ upon delivery of the bills of lading to the First National Bank of Paris. Paris is the county seat of Lamar County, by reason of which courts may take judicial knowledge of the fact that it is located in Lamar County. (citing authorities) Therefore venue was by the terms of the contract fixed in Lamar County under Article 1995, Sec. 5. * * * ”

In Shelton v. Poyner, Tex.Civ.App., 326 S.W.2d 583, wr. dism’d (1959), a purchaser sued the vendors for damages for breach of a written contract to convey land; the trial court overruled the vendors’ plea of privilege, and sustained venue in the county of suit under Subsection 5 of Art. 1995, and the Court of Civil Appeals affirmed. We quote in part from said case as follows:

“In reading the written contract in the case at bar, we find :
1. Appellee was required to deposit $10,000 in the Pecos County State Bank at Fort Stockton, Pecos County, Texas, pending appellants’ furnishing abstract of title and examination of same.
2. Upon acceptance of title by appel-lee, appellants were to deliver warranty deed in Pecos County, Texas.
3. At the time of closing said transaction, appellee was to deliver an additional sum of $10,000 to the bank in Pecos County, Texas, for appellants.
4. The notes on the unpaid balance of the purchase price were to be paid in Sanderson, Terrell County, Texas.
5. Subdivision of paragraph 5 of the contract states: ‘This contract shall be specifically enforceable by specific performance and venue thereof shall be located in Pecos County, Texas.’
We believe that, with the above, the contract was to be consummated in Pecos County, and that partial payment ($10,000) in escrow had been made in Pecos County, and, also, that further payment of $10,000 was to be made in Pecos County upon performance by appellants. The payments to be made in Terrell County would become operative only after consummation of the contract of sale.
Appellants insist that the damages sued for are special damages and are not such as contemplated by Article 1995, V.A.C.S. With this we cannot agree. Upon breach of contract, the suit can be either for specific performance or for damages arising from said breach. 43-A Tex.Jur., Vendor & Purchaser, § 683, page 697; Broun v. Shannon, Tex.Civ. App., 290 S.W. 802, and 11 S.W.2d 540.
Because of the requirements of the contract — that is, delivery of the warranty deed and the payment of $20,000 at the time of such delivery, both in Pecos County, Texas — we believe that subdivision 5, article 1995, V.A.C.S., has been complied with.
Believing this, we overrule appellants’ points of error and affirm the judgment of the trial court.”

Appellant contends among other things that the $15,000 check was payable in Red River County, Texas (payment of which had been stopped by appellant), and that by reason thereof the suit was on the check and therefore maintainable only in Red River County. We do not agree — plaintiff’s suit was not on the check, but was for liquidated damages for breach of the written contract, which we think from its four corners must be construed as being performable in Gregg County, Texas.

Appellant also contends that the bank was not the escrow agent as it did not sign a written appendage attached to the contract accepting in writing the escrow agency. While the appendage was not signed for the bank by any of its officers, the evidence is undisputed that the bank did in fact act as escrow agent and did all the necessary acts of the escrow agent.

Finding that the trial court entered a correct judgment under the record in this cause, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Jeff D. GABLE, Appellant, v. Ralph SPAIN, Appellee.
    No. 7852.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1967.
    Rehearing Denied Dec. 12, 1967.
    Jack N. Price, Longview, for appellant.
    Larry Starr, Neal Hawthorn, Kenley, Boyland & Hawthorn, Longview, for ap-pellee.
   DAVIS, Justice.

A suit for personal injuries alleged by plaintiff-appellant, Jeff D. Gable, against defendant-appellee, Ralph Spain, as the result of an accident which occurred while appellant was in the process of mowing a lawn for appellee with a lawn mower that was furnished to appellant by the appellee. Trial was to a jury. The jury found that appellee was guilty of negligence and fixed the amount of damages at $6,336.00. Medical expenses were stipulated at $87.50. The jury found the appellant guilty of contributory negligence. The trial court entered a take-nothing judgment. Appellant has perfected his appeal and brings forward seven points of error.

By his points one, two and three, appellant says the trial court erred in rendering judgment upon the verdict because there is no evidence; the evidence is insufficient; and, is against the overwhelming weight and degree of the credible testimony as to be manifestly unjust and unfair to the jury’s answers to special issues 5, 5A and 5B, and will not support the same.

Special issues 5, 5A and 5B, and the jury’s answers thereto read as follows:

“SPECIAL ISSUE NO. 5:
“Do you find from a preponderance of the evidence that before getting down on the ground in front of the lawnmower the Plaintiff, Jeff D. Gable, failed to check the gear lever on the mower to make sure that it was in the proper position to put the mower completely out of gear?
If you have answered Special Issue No. 5 ‘Yes’, and only in that event, then answer Special Issue No. 5-A.
“SPECIAL ISSUE NO. 5-A:
“Do you find from a preponderance of the evidence that such failure, if you have so found, was negligence as that term is defined herein?
Answer ‘Yes’ or ‘No’.
ANSWER yes.
If you have answered Special Issue No. 5-A ‘Yes’, and only in that event, then answer Special Issue No. 5-B.
“SPECIAL ISSUE NO. 5-B:
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injury to the Plaintiff?
Answer ‘Yes’ or ‘No’
ANSWER: Yes”

The evidence shows that appellant had been given instructions on how to use the mower. It was a mower that you could shift in and out of gear. He had already used the mower about 20 minutes before stopping the mower to move some rock off the lawn to protect the mower. He had shifted it out of gear and by force mowed in some close places. When he stopped the mower to move the rock, he did not notice whether or not he had the mower completely out of gear. When he got down in front of the mower, he noticed that it was in gear and coming straight at him. He testified that when the lever was down he took it for granted that it was out of gear. The evidence shows that it would have been very easy to stop the motor on the mower, and it was easy to crank. He further testified that he only glanced his vision at the lever and did not put his hands on it.

This constitutes some evidence, the evidence is sufficient to support the jury’s answers and is not against the overwhelming weight and degree of credible testimony to make it manifestly unjust and unfair.

Appellee testified that the lawn mower was in good shape and he did not know of any defects in it. The jury found that he didn’t know, nor in the exercise of ordinary care could have discovered the condition, if any, of the lawn mower, whereby the lever could become engaged when the motor was running and the mower standing still. There is no evidence establishing any defects, and no jury finding that any defects existed. Western Textile Products Co. v. Sidran, Tex. (1953), 153 Tex. 21, 262 S.W.2d 942, and authorities cited therein. The points are overruled.

By point seven, appellant says the trial court erred in granting judgment for appellee because of jury misconduct. There was only a fact issue raised in the hearing on the motion for new trial. The fact issue was decided against appellant. We are bound thereby. Rule 327 Texas Rules of Civil Procedure, and the authorities cited thereunder. The point is overruled.

We have carefully examined appellant’s points 4, 5, and 6, and find each of them to be without any merit and they are overruled.

The judgment of the trial court is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    John BURNS et al., Appellants, v. CITY OF CARROLLTON, Texas et al., Appellees.
    No. 16989.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1967.
    Sandy M. Sandoloski, Weinberg & San-doloski, Dallas, for appellant.
    R. L. Dillard, Jr., and Gerald C. Galbraith, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Appeal from order denying temporary injunction. John Burns and Mrs. Willie B. Cook, on behalf of themselves and sixty-four other citizens of Dallas County, brought this suit against the City of Car-rollton, Texas and the mayor and city councilmen, seeking a temporary restraining order, temporary injunction, and permanent injunction, restraining Carrollton and its officials from passing an annexation ordinance or attempting to exercise jurisdiction over certain territory sought to be annexed by such ordinance. Plaintiffs reside in an unincorporated area directly north of and adjacent to the present corporate limits of the Town of Coppell, Texas. Plaintiffs base their right to injunctive relief upon the allegation that they had previously presented to the County Judge of Dallas County a petition signed by the plaintiffs, and the sixty-four other residents of the unincorporated territory, praying for an election to determine if such territory should be incorporated as the Town of Jamestown, Texas. Plaintiffs alleged that by virtue of such action the City of Carrollton had no legal right to attempt to exercise jurisdiction over the territory sought to be incorporated and should be enjoined from passing the attempted annexation ordinance which covered a portion of the territory in controversy. The City of Carrollton, and other individual defendants, answered alleging, inter alia, that plaintiffs’ attempt to initiate incorporation proceedings was without effect for the reason that plaintiffs had failed to obtain written consent from all existing municipalities having extraterritorial jurisdiction over the property sought to be incorporated as required by Art. 970a, Vernon’s Ann.Civ.St. of Texas.

Upon the hearing for the temporary injunction before the court, without a jury, the parties entered into a written stipulation of facts, the essential and material portions thereof being as follows: that on or about April 21, 1966 plaintiffs delivered to the County Judge of Dallas County an instrument purporting to be a petition for incorporation for an unincorporated area located within Dallas County. The area sought to be incorporated, and which was described in detail by metes and bounds, is situated within the extraterritorial jurisdiction, as that term is defined in Art. 970a, V.A.C.S., of the Cities of Dallas, Carrollton, and the Town of Coppell. At the time of delivery to the County Judge of the petition for incorporation, consent to incorporate the Town of Jamestown (as that town was to be designated) had not been obtained from any of the municipalities having extraterritorial jurisdiction of the areas sought to be incorporated and, at the time of the hearing for temporary injunction (and also at the time of the order denying the temporary injunction) the Town of Coppell had not issued its consent. The consent referred to by the parties is that consent required by Art. 970a, V.A.C.S. On January 3, 1967, two proposed annexation ordinances of the City of Carrollton were introduced for consideration of the Council and a resolution was passed at that meeting that such ordinances be published as required by law and considered at a subsequent time for passage.

The trial court entered an order denying the temporary injunction and on the same date the City of Carrollton enacted annexation ordinances covering the property sought to be annexed.

The trial court filed conclusions of law supporting defendants’ contentions.

OPINION

Appellants present three points of error supporting their contention that the judgment of the trial court should be reversed and that the temporary injunction should have been issued. By these three points, briefed together, appellants contend that the trial court erred (1) in holding that they had not pled a cause of action; (2) that they had not proved a cause of action; and (3) in holding as a matter of law that the consent of all cities having extraterritorial jurisdiction of an area sought to be incorporated as a town or city is a necessarry prerequisite to the filing of a petition for incorporation with the county judge of the county wherein the land sought to be incorporated is situated.

It is well settled that on appeal from an order granting or denying a temporary injunction the narrow question is whether the trial court abused its discretion in entering the order appealed from. The order will be reversed only when a clear abuse of discretion is demonstrated by the record. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); 31 Tex.Jur.2d, § 224, pp. 345-347. It is equally well settled that if the facts are undisputed, as here, and only questions of law are presented, it does constitute an abuse of the trial court’s discretion to fail properly to apply the law to the facts. Dallas General Drivers, etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); John L. Bramlet & Co. v. Hunt, 371 S.W. 2d 787 (Tex.Civ.App., Dallas 1963); 31 Tex.Jur.2d, § 224, p. 349. Applying these well established rules of law to the record in this case, we are of’ the opinion that the court properly applied the applicable law to the undisputed facts. We find no merit in appellants’ three points of error and overrule same and affirm the judgment.

In 1963 the Legislature enacted Art. 970a, of the Revised Civil Statutes of Texas, entitled “Municipal Annexation Act.” By the terms of this statute it was expressly declared to be the policy of the State pf Texas that the unincorporated area, not a part of any other city, which is contiguous to the corporate limits of any municipality to the extent described in the státute, shall comprise and be known as the extraterritorial jurisdiction of such city or cities.

Section 8A of Article 970a provides:

“No city may be incorporated within the area of the extraterritorial jurisdiction of any city without the written consent of the governing body of such city.”

Then follows the procedure to be followed in the event of denial of consent of such governing body. The statute then' continues:

“Written consent or authorization for the incorporation of a proposed city, insofar as the provisions of this Subsection are concerned, shall mean only authorization to initiate incorporation proceedings for such proposed city as otherwise provided by law.”
Section 8C of Article 970a provides:
“If authorization to initiate incorporation proceedings for a proposed city is obtained under the provisions of Subsection A of this Section, such incorporation must be initiated within six (6) months of the date of such authorization and such incorporation must be finally completed within eighteen (18) months of the date of such authorization. Failure either to initiate such incorporation proceedings or- to finally complete the incorporation of such proposed city within such allotted periods of time shall terminate such authorization. * *

We agree with appellees that the failure of the appellants to obtain written consent or authorization from all cities and towns having extraterritorial jurisdiction as defined in Art. 970a, V.A.C.S., prior to exhibiting a petition for incorporation to the County Judge, renders the effect of such petition a nullity and creating no legal relationship or status which would offer an obstacle to the subsequent annexation of the same territory by the City of Carrollton. The terms and provisions of the statute are clear and unequivocal. The statute refers to “written consent or authorization” and “authorization to initiate incorporation proceedings” in several places. The written consent of the governing body having extraterritorial jurisdiction is made mandatory by the Legislature. The right of the Legislature to provide conditions under which cities may incorporate is not questioned. When the statute designates certain conditions to be fulfilled as a condition precedent same must be substantially complied with. 39 Tex.Jur.2d, § 8, p. 370 and § 12, p. 373.

Since appellants admittedly failed to either allege or prove that they had complied with the mandatory provisions of Sec. 8A, Art. 970a, V.A.C.S., prior to filing their petition for incorporation with the County Judge of Dallas County such petition was of no force and effect. Vernon v. State ex rel. City of San Antonio, 406 S.W.2d 236 (Tex.Civ.App., Corpus Christi 1966); Red Bird Village v. State ex rel. City of Duncanville, 385 S.W.2d 548 (Tex.Civ.App., Dallas 1964, writ ref’d).

The judgment of the trial court is affirmed.

      . On June 27, 1966 the City of Dallas waived and relinquished its extraterritorial rights to the area in question. On May 3, 1966 the City of Carrollton also waived its rights but thereafter, on October 6, 1966, withdrew such waiver.


author: PRITCHARD, Commissioner.

text:
    George F. BOYD, Plaintiff-Appellant, v. A. E. MARGOLIN and James Gary Knaus, Co-Executors of the Estate of Ezra D. Knaus, Deceased, Defendants-Appellants, A. E. Margolin and James Gary Knaus, Co-Executors of the Estate of Ezra D. Knaus, Deceased, Defendants-Respondents.
    No. 52505.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.

      Albert Thomson, Kansas City, for plaintiff-appellant, George F. Boyd.
    Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
    Charles W. Medley, Robert A. Goodman, Margolin & Kirwan, Kansas City, for defendant-appellant.
   PRITCHARD, Commissioner.

Plaintiff recovered judgment for $10,000 for a broker’s fee in the sale of the Knaus Truck Lines, Inc. He contends that he was entitled to a directed verdict of $36,000 upon his contract made by Ezra D. Knaus (deceased since the time of trial), being 5% commission upon the sale of the Knaus Company to Consolidated Freightways, Inc., for 60,000 of its shares, said to be of a value of $720,000, the allegations for which were embodied in Count I of the petition. Defendants counter plaintiff’s contentions and say that he has failed to prove that he in entitled to $36,000 on the alleged express contract as a matter of law, and further by cross-appeal that he is not entitled to the $10,000 verdict and judgment on the theory of an implied contract (Count II of the petition) .

Plaintiff, Boyd, now of Carthage, Missouri, has been in the trucking business since the early 1930’s. He started with one truck, built the company up for 20-odd years, then sold it to Knaus Truck Lines, Inc. in 1955. He then worked for a time for Knaus as a consultant and advisor concerning matters involved with its acquisition of Boyd Truck Lines. Before his sale to Knaus, he sold the England Brothers Truck Line to A. E. Gallagher. Presently, Boyd is president and general manager of Tri-State Motor Transit Company. By reason of his long experience, Boyd was familiar with truck lines throughout the United States.

Boyd’s version of the facts are that in May of 1957 he had a conversation with Mr. Knaus who told him he might be interested in selling his truck line. Mr. Knaus owned the biggest part of the capital stock of Knaus Truck Lines, Inc., and of the Transport Equipment Company. Boyd told Mr. Knaus he thought he could find him a buyer, and Mr. Knaus gave him a letter of authorization (which he personally typed) to represent him in an effort to sell his truck line, Plaintiff’s Exhibit No. 1 (A):

“George F Boyd.
“This is your authority, to off all the stock in Knaus Truck lines for Sale, to your prospect, or prospects, For the Net Sum of $1,000,000.00 one Million Dollars. I agree to pay %5 Commission to you if you are able to effect a sale to a party suitable to me, I require a minimi», of 30% down, and terms to be negotiated for the balance,
“I agree to make this offer for one week only, as I have other committments, that I cannot hold up longer than that length of time, That would effef the price, I agreed to sell for at this time, which I have discussed with you on the phone,
Knaus Truck Lines Inc.
/s/ Ezra Knaus. pres.”

Afterwards, Boyd told Mr. Knaus that he was going to Menlo Park, California, to see Consolidated Freightway s and that he should have financial information to take with him to show the present financial condition of the company; also a copy of his operating authorities and routes, “just general information that a prospective purchaser would be interested in seeing.” Mr. Knaus also supplied Boyd with Plaintiff’s Exhibit 3, dated June 19,1957, a letter reciting that enclosures were made of (1) a certified audit of Knaus Truck Lines, Inc. (as of 12/31/56); (2) a certified audit of Transport Equipment Co. (as of 12/31/56); (3) a list of equipment (over-the-road and city); (4) note schedules of both companies; and (5) blueprint of the Kansas City property showing terminal and parking areas. Boyd then called Mr. Kassebaum, vice president of Consolidated, and made an appointment with him. He purchased an airplane ticket, and conferred with Mr. Kassebaum who requested further information to be supplied on one of Consolidated’s forms, which Mr. Kassebaum gave to Boyd on June 24 or 25, 1957. Boyd conferred with Mr. Knaus as to Consolidated’s requested information. Mr. Knaus told Boyd that he would make the information available to him through Mr. Troupe, his accountant, which was done. Then Mr. Knaus gave Boyd a copy of Plaintiff’s Exhibit 1, upon which Mr. Knaus wrote at the bottom: “this agreement is extended 1 week from today till July-5th. and is understood to Include transport Equip Co — on sale June-27 E. K. (signed) Ezra Knaus.” This was in response to Boyd’s objection that he could not sell a truck line in a week, to which Mr. Knaus replied that he wanted to be assured that Boyd had an interested party before he made any extensions in the agreement. Boyd then placed a call to Mr. Kassebaum and introduced him to Mr. Knaus over the telephone, they talked, and Mr. Knaus said he was convinced that Consolidated was interested, that they would go ahead and give the additional information. Mr. Knaus caused to be prepared, gave to Boyd who passed it on to Consolidated, Plaintiff’s Exhibit 6, which is a detailed account of the assets of Knaus Truck Lines and Transport Equipment Company. Listed are the book values (total $452,000) and the actual values (total $1,182,110).

After June of 1957, Boyd made several telephone calls, and in September, 1957, Mr. Kassebaum and Mr. Knaus met at the latter’s office with Boyd present. Mr. Knaus showed Mr. Kassebaum the property and talked to him. Mr. Knaus said that he preferred to sell to an investor and that he was not right sure that he was going to make a deal with Consolidated. Boyd made efforts to secure an investor who might be interested in buying the line, but was unsuccessful. Boyd testified he also contacted an operator-trucker, Mr. Harvey Jones, in Spring-dale, Arkansas, about a sale of the truck line. Mr. Kassebaum returned in October, 1957, and Boyd had dinner with him and his lawyer. Mr. Knaus later met with Mr. Kassebaum, but requested that Boyd not be present, saying that he would handle the negotiations himself from that time on. Mr. Knaus never at any time said he was not interested in Consolidated as a purchaser, and in December, 1957, he sold to Consolidated. Although he requested it, no commission or compensation was paid to Boyd for what he had done. The Interstate Commerce Commission approved the purchase by Consolidated of the Knaus Truck Line in October, 1961.

Edward B. Watkowski, Jr., testified that the over-the-counter bid and asked prices of Consolidated’s shares of stock on January 3, 1958, were 12¾ and 13⅝ according to the quotations of Blyth & Company, Inc., a general brokerage firm.

Lester Earl Kassebaum, Portland, Oregon, was employed by Consolidated. He testified by deposition that sometime between 1956 and 1960 he learned that the Knaus Truck Line might be for sale when he was approached by Boyd. He told Boyd that Consolidated would not pay a finder’s fee on the purchase. He would not go into anything but a “stock deal.” He did not talk to Mr. Knaus prior to Boyd’s contact. He made two trips to Kansas City in connection with the Knaus Truck Line purchase, and he made a final agreement for 60,000 shares of Consolidated stock in exchange for the Knaus Truck Line. Boyd did not tell him that his authority in finding a buyer was limited to one who was not in the trucking industry at the time. On his first visit to Kansas City he did not have a joint meeting with Boyd and Mr. Knaus. Mr. Knaus first rejected a Consolidated stock offer, but later he agreed to accept 60,000 shares, and the agreement to sell was made about December 15, 1957.

As admissions against interest, portions of Mr. Knaus’ deposition were read: He first talked with Boyd about the sale of Knaus Truck Lines-in April or May, 1957. In his best judgment, the value of Consolidated’s stock in December, 1957, was right around twelve dollars. Boyd first mentioned to him the company of Consolidated Freightways probably in July, 1957, but never mentioned selling direct to Consolidated. Mr. Knaus first talked to Consolidated about a stock exchange in September, 1957. In December, 1957, if Boyd had found an individual (a nonoperator — an “operator” being defined in the instructions as meaning a truck line registered with the Interstate Commerce Commission), he had authority to go ahead and sell the truck line at the price Mr. Knaus had given him. He finally negotiated with Consolidated for 60,-000 shares of stock in the last week of December, 1957. Further admissions elicited at trial from Mr. Knaus are: He prepared, typed and signed Plaintiff’s Exhibits 1 and 2; there was no other written agreement regarding a commission between him and Boyd except those documents; Boyd brought him a contract for a sale to an operator on or about July 18, 1957; that in December, 1957, he made a deal with Consolidated whereby the Knaus Truck Lines stock was exchanged for Consolidated Stock worth $720,000; Plaintiff’s Exhibits 1 and 2 did not contain either the word “operator” or “non-operator”; in September, 1957, he met with Kassebaum, and that he previously testified by deposition that Consolidated wanted information “to see if they would be interested in making any kind of a stock exchange with us”; he again met with Consolidated representatives in October, 1957, and it offered 65,000 shares of its stock for Knaus Truck Lines on October 4: until Mr. Knaus actually sold the line so far as he knew Boyd probably was still working on the sale; in August, 1957, Knaus Truck Lines’ current liabilities exceeded its current assets; and he did not know any Consolidated personnel until he commenced the dealings which resulted in the exchange of stock.

The evidence of Mr. Knaus was that Mr. Harvey Jones of Springdale, Arkansas, was never contacted by Boyd for a sale of Knaus Truck Lines to him. He did not know it was for sale until it had actually been sold. Mr. Margolin, counsel for Mr. Knaus, testified he represented him in his efforts to sell the truck line, the first meeting being in July, 1957, wherein Boyd disclosed his prospect as being a Robert W. Lacey. Boyd did' not mention Consolidated at that first meeting or any time thereafter. Margolin asked Boyd if it was entirely clear to him that Mr. Knaus was not interested in making a deal with an “operator,” because he would not go through the delays of applying to the I.C.C. for permission. At a second meeting Boyd submitted Defendants’ Exhibit 5, a written proposal which he said was from Lacey, which was rejected because it did not provide for a cash transaction and did not contain a representation or warranty that Lacey was a “nonoperator.” Margolin drew up a contract, Defendants’ Exhibit 6, containing those provisions, and which named Robert W. Lacey as buyer. That contract was not executed by Lacey, and Margolin did not recall any communication from Boyd after he drafted the contract. About October 4, 1957, Margolin met with Mr. Knaus, Kassebaum and attorney Shafer, wherein the Consolidated people expressed a desire to acquire a freight line and gave information about the desirability of a stock exchange. No offer was then made. Margolin’s next contact with Consolidated representatives was December 16, 1957, when he called Mr. Shafer. He and Mr. Knaus went to Portland, Oregon, about December 28, 1957, and the deal was closed before the first of the year. The sale was subject to Consolidated procuring a temporary authority from I.C.C., and pending an application for permanent authority from that agency, and that Consolidated would bear interim expenses of operation and indemnify Knaus Truck Lines for any losses in the event permanent authority was denied. Initially, permanent authority was denied by I.C.C., but was finally granted in January, 1961. After that the reorganization agreement (for exchange of stock) was consummated by Consolidated and Mr. Knaus.

Mr. Knaus testified that in April or May, 1957, Boyd contacted him about selling the truck line. Mr. Knaus told him he would sell provided he could sell to a non-operator for one million dollars. Boyd proffered a contract, Defendants’ Exhibit 2, which was rejected by Mr. Knaus, providing that Boyd would sell for one million dollars, at a 5% commission, to a nonoperating purchaser, within 90 days. Later, about June 19 or 20, Boyd came back to see Mr. Knaus and said he had a prospect he thought would buy immediately and he wanted some kind of authorization for the sale. He said his prospect was Robert Lacey. He came back in a week and asked for an extension of time, which Mr. Knaus gave him as per Plaintiff’s Exhibit 2. Boyd was not able to complete the deal. About July 5, Boyd presented Defendants’ Exhibit 5, which was rejected upon advice of Margolin, and Defendants’ Exhibit 6 was given Boyd eight or nine days later. Boyd later informed Mr. Knaus that Lacey was not able to raise the money and the deal fell through. Somewhere along the line Boyd did mention that Lacey was going to try to sell the truck line to Consolidated, but Boyd had no authority to offer Knaus Truck Lines to Consolidated for sale. In a form of contract or any other way, Mr. Knaus did not authorize Boyd to do anything further in connection with a sale of the truck line to anyone after Boyd advised him that Lacey could not raise the money. He would have given him (or anybody) a commission if he would have sold the line for a million dollars to an individual so he would not have to go through an I.C. C. hearing. “We couldn’t pay the commission and the cost of the hearings also.” Mr. Knaus granted no extension of Boyd’s contract. Boyd did not introduce Kassebaum to Mr. Knaus, who met him in September, 1957, and told him then he was not interested in a stock exchange. On October 4, 1957, Kassebaum and Shafer came to Kansas City and met at the Continental Hotel with Mr. Knaus and Margolin. Boyd was not present. Mr. Knaus arranged to secure equipment appraisals for Consolidated. No definite offer was then made. Consolidated representatives talked in figures of fifty-five, sixty-five and seventy thousand shares. Further information was given Consolidated by Mr. Knaus’ auditor who billed Consolidated direct for his services. Knaus Truck Lines began losing money rapidly in the last six months of 1957, about 400 pieces of equipment would have to be licensed at a cost of two hundred to three hundred thousand dollars for the ensuing year, so Mr. Knaus made a trip to Portland, Oregon, and made a contract to exchange all of the shares of Knaus Truck Lines, Inc. and the Transport Equipment Company for 60,000 shares of Consolidated’s stock. Mr. Knaus testified further that he never did ask Boyd to contact any truck line in reference to selling his line. “Mr. Boyd plainly understood that I would only sell at that time when I talked to him to an individual, so we didn’t have to go through the I.C.C. hearings.” When asked in January or February, 1958, by Boyd to pay a commission, Mr. Knaus told him he didn’t think he was entitled to it; that he did not sell to an individual, “and we could have sold to a truck line ourselves if we wanted to go through the I.C.C. hearings, but we could not pay a commission and go to all that expense. That is why it is very risky selling to another truck line. If it was turned down, we would have been broke.”

There are several reasons why Boyd was not entitled to a directed verdict upon his claim on the written contract, Count I of his petition. The first is the question of fact whether Boyd actually produced Consolidated as a purchaser. His testimony was that he did so, but the conflict with that position is the testimony of Margolin and Mr. Knaus that Boyd represented to them that his prospective purchaser was a Mr. Lacey. He never did mention Consolidated to them as a prospect. Secondly, there was a question for the jury as to whether Boyd was authorized to secure an “operator” purchaser under the provision in the initial writing between Knaus and him that a purchaser be procured who was suitable to Mr. Knaus. Boyd contends that the words “suitable to me” as used in Plaintiff’s Exhibits 1 and 2 are not ambiguous and are therefore not open to construction by the parties. These words are meaningless unless explained. Mr. Knaus’ testimony that the words “suitable to me” meant an operator not authorized as a truck line under the I.C.C. was not improper. Taken in connection with other testimony that a sale to an “operator” would entail delay and expense of I.C.C. hearings, the defense that Boyd was authorized only to make a sale to a nonoperator is not invalid as a matter of law. Under the evidence, the issue raised by that defense was also for the jury.

Boyd’s written contract further authorized him to sell for one million dollars and within one week after the contract (Plaintiff’s Exhibit 2) was extended (to July 5th). Boyd did not produce a purchaser at any time for one million dollars. The jury could find that he did not produce a purchaser of any kind within the time limited — by July 5, 1957, and that the time of performance was not extended by the acts of Mr. Knaus through December, 1957, as submitted by plaintiff in Instruction No. 2. There does exist a general rule that a broker is entitled to his sale commission where he is the procuring cause of the sale, even though the seller accepts a lesser price from that the broker was authorized to accept. Taussig, Day & Co. v. Poleman, 360 Mo. 470, 228 S.W.2d 722; Martin v. Mercantile Trust Company, Mo., 293 S.W.2d 319, 326; McIntyre v. Emmenegger, Mo.App., 355 S. W.2d 351, 353. But the right to recover a commission depends upon the broker’s contract. Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453, 458. Note that the instant contract, prepared and signed by Mr. Knaus, gave to Boyd the authority to sell the line for one million dollars by July 5, 1957, and contained the phrase, “I agree to make this offer for one week only, as I have other commitiments, that I cannot hold up longer than that length of time, That would effei the price, * * This contract, and the evidence in connection therewith, i.e., a sale authorized only to a nonop-erator, so as to avoid I.C.C. hearings, is a conditional or contingent one as the jury could determine under the evidence and instructions given. The cases and authority relied upon by Boyd, 12 Am.Jur.2d Brokers, § 183, p. 924; 12 C.J.S. Brokers § 85, p. 187; Isaac T. Cook Co. v. Craddock-Terry Co., Mo.App., 109 S.W.2d 731, are not controlling where the contract may be found to be conditional or contingent. “But, if the broker’s contract makes the right to commission conditional on a sale at a fixed price or within a definite time, he is not entitled to a commission for sale made at a less price or after such time.” Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453, 458 [6, 7], and cases cited. See also Proctor v. Gentry, Mo.App., 214 S.W.2d 746, 747; Rogers v. McCune, Mo.App., 283 S.W.2d 872, 876; White v. Barton, Mo.App., 269 S.W.2d 673, 676; Real Estate Enterprises v. Collins, Mo.App., 256 S.W.2d 286; Taylor v. Vestal, Mo., 304 S.W.2d 820, 823. Boyd had the burden of proof to show that his alleged performance was within his contract. That proof was oral. “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself.” Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 [1-3]; Tonkins v. Monarch Building Materials Corporation, Mo., 347 S.W.2d 152, 157 [5-7].

Boyd says that Mr. Knaus has not sufficiently denied his allegations of the petition in his answer. By paragraph 1 of the answer, “Defendant denies each and every allegation contained in Paragraphs 2, 3, 4, 5, 6 and 7 of Count I not specifically admitted herein.” Suffice it to say that the answer complied with Civil Rule 55.09, V.A.M.R., in that there are general denials of averments except those “specifically” admitted, which is the same as the rule wording of “designated” averments or paragraphs. The answer puts in issue: whether Boyd procured a sale to a nonoperating purchaser within the time limited who would purchase for one million dollars; and whether Boyd procured Consolidated as a purchaser at all. These were the basic issues for the jury.

For the cross-appeal, attacking the $10,000 judgment upon Count II, Mr. Knaus’ representatives say first that Boyd is entitled to nothing because the evidence and pleadings conclusively established that any services rendered were under the terms of an express written contract and therefore there could be no implied contract between the parties for payment of services. It is argued that a party cannot have both an express contract and an implied contract arising out of the same circumstances. Cited is 12 Am.Jur. Contracts, § 7, p. 505, “There cannot be an express and an implied contract for the same thing existing at the same time. It is only when parties do not expressly agree that the law interposes and raises a promise. No agreement can be implied where there is an express one existing.” Further quotation from that same authority is, “The rule that a promise by implication does not exist where the party had made an express promise is not arbitrary and inflexible.” The first-quoted and relied-on authority ignores the long line of Missouri cases well settling the proposition that a plaintiff may treat the express agreement abrogated or rescinded and recover the reasonable value of the services rendered on quantum meruit, and may introduce the contract into evidence upon the question of damages, being limited in recovery to an amount not exceeding the contract price. Illustrative of these cases are Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 338 [7], 8 A.L.R.2d 710; Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7, 11, and cases there cited. Later cases announcing the same rule are: Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824, 829 [4,5]; State ex rel. Intern. Terrazzo & Mosaic Flooring Co. v. Aetna Casualty and Surety Company, Mo.App., 350 S.W.2d 418, 423. And of course under the present-day practice of pleading, regardless of sufficiency or consistency a party may set forth claims to relief alternatively (as was done here in Counts I and II). Civil Rules 55.06 and 55.12, V.A.M.R.

The answer filed here does not raise any issue that Boyd be required to elect upon which counts of his petition he was going to submit his case. The matter of an election of the remedy is required to be pleaded affirmatively as a defense. Mottley v. Dugan, Mo.App., 191 S.W.2d 979, 983 [14]; State ex rel. Kansas City v. Harris, 357 Mo. 1166, 212 S.W.2d 733, 735 [6]. At least, an appropriate motion to require Boyd to elect at the close of the evidence should have been made so that the matter of what should have been submitted to the jury would have been called to the attention of the court. 25 Am.Jur.2d Election of Remedies, § 34, p. 676. Mr. Knaus’ motion for directed verdict did not raise the issue. In other states, there is divided authority as to whether a plaintiff may be required to elect between actions on an express contract and on a quantum meruit. 28 C.J.S. Election of Remedies § 6, p. 1072, and pocket part. In Missouri, however, it seems that these theories of recovery are inconsistent and a party may be required to elect as to which he will submit to the jury. “A party cannot count upon a contract and recover upon a quantum meruit.” Missouri Pac. Ry. Co. v. Kansas City & I. Air Line Co., 189 Mo. 538, 88 S.W. 3, 5; Robson v. United Pacific Insurance Company, Mo., 391 S.W.2d 855, 860 [1-3]; O’Neal v. Mavrakos Candy Co., Mo.App., 255 S.W.2d 138, 140 [1] (aff’d 364 Mo. 467, 263 S.W.2d 430) ; Heard v. Stahl, Mo.App., 271 S.W.2d 68, 70 [2]. These cases, however, limiting recovery to the pleaded theory to the exclusion of any other theory, are applicable on their facts to the situation of where a plaintiff has “chosen his route.” Young v. Hall, Mo.App., 280 S.W.2d 679, 681. Krupnick and Associates, Inc. v. Hellmich, Mo., 378 S.W.2d 562, relied upon by cross-appellants, has language that “the express contract which existed between the parties and which was shown by the plaintiff’s evidence would preclude recovery on that basis just as the express contract precluded the finding of a contract implied in fact and relied upon by plaintiff in its original petition. Such express contract would also preclude the existence of the contract implied by law or quasi contract, necessary to form the basis for recovery in quantum meruit. (Citing cases).” 378 S.W.2d 569. That case did not have any issue of election as between the theories urged. It was held merely that plaintiff having proceeded on his existing contract (not treated as abrogated or rescinded) could not have a recovery on a quantum meruit, and a remand for a hearing on that theory was denied upon the motion for rehearing. The case, however, is further illustrative of the inconsistencies between the instant two theories.

The difficulty with appellant’s cross-appeal position here is that Mr. Knaus in no way urged in the trial court that Boyd elect between his pleaded theories. He sat by and allowed him to submit both theories to the jury by Instructions Nos. 2, 3 and 5 (the latter upon reasonable compensation upon the implied contract of Count II). The cross-appealing appellants raise no question here as to the sufficiency of Boyd’s evidence to support his submission to the jury of his alternative theory of recovery on quantum meruit. Not having called the attention of the trial court to any imperfection of submission of theories to the jury, these appellants must be deemed to have waived the same. 25 Am.Jur.2d Election of Remedies, §§ 33, 34 and 35, pp. 675 et seq.; “The doctrine of election, whether applied to the selection of optional courses of procedure or the choice of individuals to be sued, is intended for the benefit of the parties charged, and the defense may be waived by them.” 28 C.J.S. Election of Remedies § 29, p. 1103. See also 71 C.J.S. Pleading § 563, p. 1131. In this state, as to waiver by failing to move for an election between two or more improperly joined causes of action, see Hartz v. Page, 224 Mo.App. 83, 20 S.W.2d 701, 704, and cases cited (although now under said Civil Rules, two claims to relief may be joined in one count). As to inconsistent defenses, see Feiden v. Gibson, Mo., 218 S.W.2d 105, 107 [6,7], “Furthermore, we find no motion to strike or to elect in the record before us. A motion to strike or to elect is the proper remedy for inconsistent defenses, and in the absence of such motion, the obj ection is deemed waived.”

The last point is that Boyd’s claim to relief on his alleged implied contract under Count II is barred by the five-year statute of limitations, § 516.120(1), RSMo 1959, V.A.M.S. According to Boyd, his performance of services to Mr. Knaus in connection with selling the truck line ended in October, 1957. Mr. Knaus’ contract with Consolidated was conditional or contingent upon Interstate Commerce Commission approval of the sale. That approval was had (after an initial denial) in October, 1961. Suit was filed June 30, 1964, within five years of the approval of sale. Mr. Knaus’ contract with Consolidated was conditioned upon such I.C.C. approval, and if it were not had the sale was off and the truck line was to be returned to Mr. Knaus. Although the performance by Boyd was more than five years before he filed suit, the statute of limitations has no application under the facts of this case; he was not entitled to a commission until Mr. Knaus received his sale proceeds. See Edwards v. Bethany Hospital, Mo.App., 148 S.W.2d 97, 99 [3], where it was held that the cause of action for attorney’s fees did not accrue until there was a “recovery” by the defendant. See also 54 C.J.S. Limitations of Actions § 133, p. 50, “Where a contract of employment provides that compensation is to be paid on the happening of a certain event or the fulfillment of a certain condition, a cause of action for compensation accrues and the statute of limitations begins to run on the happening of such event or the fulfillment of such condition, but not until that time.” See also 54 C.J.S. Limitations of Actions § 134, p. 53; and Lewis v. Thompson, 231 Mo.App. 321, 96 S.W.2d 938, where it was held that the statute of limitations did not begin to run until the future event of the taking of a necessary inventory happened.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Judge.

text:
    MEADOWBROOK COUNTRY CLUB, a pro forma decree corporation, Respondent, v. Beatrice DAVIS, Executrix of the Estate of Sam Davis, Deceased, Appellant.
    No. 52826.
    Supreme Court of Missouri, In Banc.
    Dec. 11, 1967.

      Cupples, Cooper & Haller, by Irving L. Cooper, Clayton, for respondent, Meadow-brook Country Club.
    John Grossman, St. Louis, for defendant (appellant).
   EAGER, Judge.

This case was transferred here by our order from the St. Louis Court of Appeals. After consideration, we have arrived at the same result as that Court did and, generally, through the same conclusions. Since the matter involved was one of general interest, we felt that this review was appropriate. We have adopted some of the language of the Court of Appeals without quotations.

The case involves the application and validity of Rule 3K of the Circuit Court of St. Louis County which is as follows: “Any party desiring a trial by jury of an appeal from the Magistrate Court or Municipal Court shall file a written request for a jury trial and deposit the sum of $15.00 with the Circuit Clerk within thirty days after the filing of the transcript on appeal. Failure to do so shall he a waiver of a trial by jury and the case shall be assigned to the jury waived docket.”

The suit was filed in Magistrate Court by the Country Club against Sam Davis, a former member, for dues, personal charges and an assessment. At that time Davis had resigned as a member. It will not be necessary to relate the facts of the main controversy except to say that Davis claimed he had been misled concerning the levying of an assessment. Plaintiff had judgment in the Magistrate Court on Sept. 28, 1962, for $784.90, plus interest, and Davis appealed to the Circuit Court in due time. The following chronology of the events in the Circuit Court is material:

Oct. 11. 1962 — Transcript of Magistrate filed
Dec. 5, 1962 — Minute entry as follows: “PURSUANT TO COURT RULE 3K, jury trial waived. Cause assigned to Assignment Division.”
Mar. 26, 1963 — Order as follows: “Deft-Appellant and Pltff-Appellee, having failed to request a trial by jury within 30 days after the filing of the transcript on appeal, (Rule 3K, Rules of Court), the jury trial is waived in the above cause; the above cause is hereby assigned to Division No. 1 for trial.”
Apr. 11, 1963 — Defendant deposited $50 with Circuit Clerk
Apr. 12, 1963 — Defendant filed memorandum as follows: “Defendant requests jury trial; cause removed from Docket of April 29th and placed on jury trial docket.”
“Denied G.E.S — Judge. 4-12-63”

At the beginning of the Circuit Court trial on May 27, 1963, defendant orally requested a jury trial, the Court stated that this had already been denied under Rule 3K, and that it again denied the request. At that time counsel for defendant made the following statement: “MR. GROSSMAN: The defendant is excepting to the rule of the Court if the order is made under the authority of Rule 3K and I would suggest that the rule deprives the cannon [sic] right of the defendant for jury trial and that the defendant is deprived of this right without due process of law. Your Honor has ruled on that?” To this the Court replied “Yes, sir.” (The Court of Appeals and the parties have considered that the word “cannon” was intended for “constitutional,” and we so treat it.)

The Court proceeded to hear evidence on the merits, took the cause under submission, and on July 10, 1963, entered judgment for plaintiff in the sum of $784.90, with interest from May 16, 1962; at the same time it filed its findings of fact and conclusions of law and overruled a motion of plaintiff to dismiss defendant’s appeal.

After filing and presenting an unsuccessful motion for a new trial, defendant took an appeal to this Court on the theory that a constitutional question was involved, and the case was submitted here. By our opinion reported at 384 S.W.2d 611, we ruled that no constitutional question had been properly and timely raised and preserved, and we, therefore, transferred the case to the St. Louis Court of Appeals. While it was pending there the defendant died and his Executrix was substituted as defendant.

Our prior opinion is the law of this case insofar as the existence of any question of constitutional construction is concerned. We, therefore, shall not consider any such question as presented in the briefs; however, we must recognize-the existence of the constitutional right to-a jury trial within the limits of our law and we consider that phase of the matter here as an application of the Constitution-Our Constitution of 1945, Art. I, Sec. 22(a) V.A.M.S. provides, in part, “That the right of trial by jury as heretofore enjoyed shall remain inviolate; * * Various qualifications follow which are not material here; there is no reference to any question of waiver. Aside from her contentions of supposed constitutional violation, the defendant now claims: that Rule 3K contravenes the “Missouri Statutes,” and Rule 69.01 of this Court; that the waiver of a jury trial requires affirmative action by the litigant; and that the Circuit Court had no power to enact rules to the contrary. The plaintiff responds that the Circuit Court is given the authority to enact reasonable rules, and that Rule 3K is merely procedural, prescribing the mode in which a party may obtain a jury trial. We hold that defendant’s points, with the exception of those involving constitutional constructions, were sufficiently raised in his motion for a new trial. We shall occasionally refer to the original defendant, Mr. Davis, as the “defendant.”

At this point we note two pertinent sections of the statutes. Section 478.450, RS Mo 1959, V.A.M.S. gives to the Judges of the Circuit Court of St. Louis County authority to enact such local court rules “as may be agreeable to the usage and principles of law.” Section 510.190 provides in part: “1. The right of trial by jury as declared by the constitution or as given by a statute shall be preserved to the parties inviolate. In particular, any issue as to whether a release, composition, or discharge of plaintiff’s original claim was fraudulently or otherwise wrongfully procured shall be tried by jury unless waived.

“2. Parties shall be deemed to have waived trial by jury (1) By failing to appear at the trial; (2) By filing with the clerk written consent in person or by attorney; (3) By oral consent in court, entered on the minutes; (4) By entering into trial before the court without objection.”

There can be no reasonable doubt that defendant was entitled to the right of trial by jury as guaranteed to him by the Constitution, unless he waived that right. Our first State Constitution provided, “That the right of trial by jury shall remain inviolate.” Art. XIII, § 8, Const. Mo. 1820. Early in our judicial history that provision was construed as guaranteeing a jury trial in those cases and in the manner in which the right to trial by jury existed under the common law. Bank of Missouri v. Anderson, 1 Mo. 244; Vaughn v. Scade, 30 Mo. 600; Berry v. St. Louis & San Francisco Ry. Co., 223 Mo. 358, 122 S.W. 1043; Barnard & Lease Mfg. Co. v. Monett Milling Co., 79 Mo.App. 153. That right has been guaranteed in each of our succeeding Constitutions, with the addition, in that of 1875 of the phrase, “as heretofore enjoyed.” Art. II, § 28, Const.1875, and see Art. I, Sec. 22(a), Const.1945. The only relief sought in the instant case was the recovery of a money judgment so that it was an action at law and, therefore, fell within the scope of the constitutional guarantee of the right of trial by jury. Federal Land Bank of St. Louis v. McColgan, 332 Mo. 860, 59 S.W.2d 1052; Minor v. Burton, 228 Mo. 558, 128 S.W. 964; Briggs v. St. Louis & San Francisco Ry. Co., 111 Mo. 168, 20 S.W. 32; Ragan v. McCoy, 29 Mo. 356.

While the right to a jury trial in a civil action at law is guaranteed, it is a personal right which may be waived. Merrill v. City of St. Louis, 83 Mo. 244; O’Day v. Conn, 131 Mo. 321, 32 S.W. 1109; Hoover v. Abell, Mo.App., 231 S.W.2d 217; Briggs v. St. Louis San Francisco Ry. Co., 111 Mo. 168, 20 S.W. 32; Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 298 Mo. 461, 250 S.W. 913; 50 C.J.S. Juries § 90, p. 798. The legislature of Missouri has, in the absence of constitutional limitations, recognized that a jury may be waived in civil cases, at least since 1825. Revised Statutes of 1825, p. 630, § 35; that act required a demand for a jury, if desired. In Revised Statutes of Missouri 1855, Ch. 128, Art. X, Sec. 12, the requirement was for a jury in actions for the recovery of money or specific property “unless a jury trial be waived.” In Revised Statutes of Missouri 1865, Ch. 169, Sec. 14, the first specific waiver provisions appeared, as follows: “Parties to an issue of fact shall be deemed to have waived a trial by jury in the following cases : First, by failing to appear at the trial ; second, by written consent, in person or by attorney, filed with the clerk; third, by oral consent in court, entered on the minutes.” Those provisions have been continued to this date with the subsequent addition of (4), i. e., “by entering into trial before the court without objection.” We thus see that the legislature has for a century specifically fixed the manner in which a jury may be waived in a civil case. By way of analogy, see State v. McClinton, Banc, Mo., 418 S.W.2d 55, where, in a misdemeanor case, the Court recognized the legislative control over the mode of waiver in the absence of constitutional restrictions; and the Court held invalid a part of Rule 26.01 of this Court insofar as applicable to misdemeanors, because it was contrary to Sections 546.050 and 543.200. The Court said: “The statutory provisions and not the rule are controlling.” In Rule 69.01(b) this Court adopted the statutory modes of waiver in civil cases, after reaffirming the right to jury trial as declared by the Constitution or statute. In view of the limitations of Art. V, Sec. 5 of our Constitution, prohibiting the enactment of rules changing the law relating to juries, it is at least doubtful that the Court could have done more. But, being strictly in accord with the statute, the rule is entirely valid and effective.

We conclude that the methods of waiver prescribed by § 510.190 and Rule 69.01(b) are exclusive, at least insofar as the facts in this case are concerned. The trial courts are authorized by our Rule 50.01 to enact rules governing their judicial business if such are “not contrary to the rules of the Supreme Court, to the Constitution or to statutory law in force.” Whether Rule 3K be considered as a procedural rule (as plaintiff contends) or not, it definitely constitutes an enlargement of the modes of jury waiver prescribed by statute and by our rule, and thus contravenes both. The plain meaning and intent of our statutes, which have thus for more than a century prescribed specific modes of jury waiver, is that those methods shall not be changed or enlarged except by the legislature; the amendment by the addition of method number (4) indicates the continued retention of control by the legislature. If we should hold otherwise, we would render the statute rather meaningless.

In addition to what we deem the logic of the matter, this construction is supported by the case of Briggs v. St. Louis & San Francisco Ry. Co., 111 Mo. 168, 20 S.W. 32, where a judgment was reversed because the court refused the request of the defendant for the jury trial of an issue involving the recovery of money. There the Court said in part, at 20 S.W., loc. cit. 33: “While the law is valid and constitutional, the court should not have tried the issue without a jury, unless it was waived. Under the statute (section 2133) a jury may only be waived in one of three modes: First, by failing to appear at the trial; second, by written consent in person or -by attorney, filed with the clerk; third, by oral consent in court, entered on the minutes. No waiver in any of these methods is shown to have been made.” See also Scott v. Young, 113 Mo.App. 46, 87 S.W. 544. And see, generally, 50 C.J.S. Juries § 90, p. 798, to the effect that, in the absence of constitutional limitations, the legislature has the power to determine the modes of waiver of a jury trial, and that a court has no power to make rules to the contrary.

Mr. Davis certainly did not waive a jury in any of the modes prescribed by statute; on the contrary, he demanded a jury, and the only reason for the refusal was his failure to make the timely written demand and deposit required by Rule 3K. We do not find it necessary here to consider the requirement of a deposit separately from the other requirements of the Rule. The requirements, in toto, are in contravention of the statute and of our Rule 69.01 (b); they impose terms more onerous than does the statute; Rule 3K is invalid. See, by way of analogy, Wade v. Wade, Mo.App., 395 S.W.2d 515. If the Circuit Court of St. Louis County requires relief in such manner as in 3K provided, it must seek it from the legislature.

Plaintiff has relied strongly upon the case of City of St. Louis v. International Harvester Co., Mo., 350 S.W.2d 782. That was a condemnation suit, prosecuted under the provisions of the St. Louis Charter; the charter provided that in that class of actions, a party desiring a jury must file a written demand for a jury “before the assignment of the commissioners,” or the right to a jury would be waived. The appellant did not request a jury until a trial was about to be held on exceptions to the report of the commissioners. The request was denied, and this Court upheld the ruling upon the theory that reasonable regulations might be made concerning the right to, and waiver of, a jury trial. We must consider that case in the light of its circumstances and background. The provision of the St. Louis Charter fixing the method of jury waiver was the equivalent of a special statute applicable to condemnation cases in the City of St. Louis. Giers Impr. Corp. v. Investment Service, Inc., Mo., 235 S.W.2d 355; Kansas City v. Ashley, et al., Mo., 406 S.W.2d 584; General Installation Co. v. University City, Mo., 379 S.W.2d 601. The charter provision there was consistent with the Constitution, which has since 1945 and previously (Art. I, Sec. 26, Const.1945, and Art. II, Sec. 21, Const. 1875) provided that the determination of the value of property taken in condemnation may be ascertained by a jury or a board of commissioners in such manner “as may be provided by law.” Moreover, condemnation cases are not considered as among those in which the Constitution guarantees the right to a trial by jury “as heretofore enjoyed.” This distinction between condemnation cases and cases at law, generally, was recognized in City of St. Louis v. Gruss, Mo., 263 S.W.2d 387, cited in the International Harvester case, supra, with particular reference to the mode of condemnation by charter cities. See, also, City of St. Louis v. Franklin Bank, 340 Mo. 383, 100 S.W.2d 924, 30 C.J.S. Eminent Domain § 281, pp. 32-33. The City of St. Louis has been permitted to adopt a charter mode of condemnation differing even from that of the general condemnation statutes. The International Harvester case is not persuasive here; nor are cases cited from other states which have different statutes or different constitutional provisions.

The cases arising under Federal Rule of Civil Procedure No. 38 are not applicable to the present situation. The Rule requires a demand for a jury within a specified time, but, under the United States Code, Title 28, § 2072, the rules so adopted are given the effect of federal statutes, after having been submitted to the Congress. Thus, we may say that Congress has, through those rules, fixed the requirement of a jury demand in civil cases. The Missouri legislature has not done so.

As applied to this defendant there can be no reasonable doubt that Rule 3K contravenes and is contrary to § 510.190, supra, and to Civil Rule 69.01, adopted pursuant thereto, both of which affirm his constitutional right to a jury trial and provide the exclusive manner in which he might be deemed to have waived that right. Rule 3K not only required the defendant, within a limited time, to make a deposit for the expenses of a jury in a case brought against him, but it conditioned his right to trial by a jury upon terms more onerous than those fixed by law and deprived him of that right in a manner contrary to the modes of waiver so specified.

The judgment is reversed and the cause is remanded for a new trial.

All concur.

      . To which all statutory references will refer.


author: WELBORN, Commissioner.

text:
    Mary Ellen CARNELL and Clarence E. Carnell, Respondents, v. DAIRYMAN’S SUPPLY COMPANY and Vester Lois Moreland, Appellants.
    No. 52647.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.

      James M. Reeves, Ward & Reeves, Car-uthersville, for respondents.
    Dwight Crader, Sikeston, for appellants.
   WELBORN, Commissioner.

This is an action for damages arising out of an automobile-truck collision. The action was brought by Mary Ellen Carnell and Clarence E. Carnell, husband and wife, occupants of the automobile, against Dairyman’s Supply Company, owner, and Vester Lois Moreland, driver, of the truck. The petition was in five counts. Count I sought damages of $7500 on behalf of Clarence Carnell for personal injuries. Count II sought damages of $8,000 on behalf of Mary Ellen for personal injuries. By Count III Clarence sought damages of $2,000 for injuries to his wife. Count IV sought $1500 on behalf of Mary Ellen on account of injuries to her husband. Count V sought $1,000 for damages to the auto jointly owned by plaintiffs. The jury’s verdict was as follows:

Count I — For plaintiff Clarence Car-nell for $75.00;
Count II — For plaintiff Mary Ellen Carnell for $100.00;
Count III — For defendants;
Count IV — For defendants, and
Count V — For plaintiffs for $160.61.

The trial court sustained plaintiffs’ motion for a new trial as to all counts “for the reason that the verdict of the Jury is against the weight of the evidence and is inadequate on all five counts.” The defendants have appealed from the order granting a new trial.

The appellants concede the obviously discretionary character of the grounds for award of a new trial. Underwood v. Brockmeyer, Mo.Sup., 318 S.W.2d 192, 193-194 [1-4], [5]; Wessels v. Smith, Mo.Sup., 362 S.W.2d 577, 579 [4]; Ray v. Bartolotta, Mo.Sup., 408 S.W.2d 838, 840 [4]. Our review is limited to the question of whether the action of the trial court was an abuse of discretion. If there was substantial probative evidence, viewed in the light most favorable to the trial court’s action, to support the order, there was no abuse of discretion. Sapp v. Key, Mo.Sup., 287 S.W.2d 775, 779 [2-5]; Underwood v. Brockmeyer, supra.

Viewing the evidence in such light, it shows that both plaintiffs sustained “whiplash” type injuries when their automobile was struck in the rear by the Dairyman’s Supply truck driven by Moreland. The accident occurred as both vehicles were driving east on Route U in Pemiscot County on August 31, 1965. The truck overtook the auto driven by plaintiff Clarence Carnell and the front of the truck struck the rear of Carnell’s Ford. The truck jackknifed and turned over in the ditch. Moreland was not injured and he apologized at the scene to the Carnells for striking their vehicle.

Both plaintiffs testified that the blow to their auto was strong enough to cause their heads to snap backwards. Neither sustained external injuries. They drove to Ca-ruthersville, their residence, and attempted to see their family physician, but were unable to do so. They went to Dr. Carl Bird, a chiropractor. Doctor Bird found that Mrs. Carnell had suffered “a cervical strain, as the result of a whiplash injury, moderate in nature.” Although his diagnosis was based to a large extent upon subjective complaints, Doctor Bird testified that he found quite a bit of muscular spasm in the neck region and that X-rays showed a lessening of the cervical curve caused by “musculature contraction” resulting from some degree of injury there. Doctor Bird also found a moderate cervical strain upon his examination of Clarence Carnell. He noted muscle spasm, limitation of head movement, an area of discoloration in the right shoulder and sensitivity to palpation of the right scapular musculature. Doctor Bird treated both plaintiffs on September 1, 18, 20, 22, 27, 28 and October 4, 1965. Mrs. Carnell received diathermy in the form of heat, intermittent traction to the cervical spine and soft tissue manipulation. Mr. Carnell’s treatment consisted of galvanism and soft tissue manipulation. Doctor Bird’s charges were $60 for his services to Clarence and $90 for services to Mrs. Carnell.

Appellants’ brief fairly summarizes the plaintiffs’ description of the injuries sustained by them as follows:

“Mary Ellen Carnell testified that she was a school teacher, that her neck was injured, that she had headaches immediately after the collision, that her back was hurting, that following the accident she consulted Dr. Carl B. Bird of Caruthersville, Missouri, that she had no skinned places, that x-rays were made, that she was treated by Dr. Bird for about two months, that she has not recovered from her injuries, that she has headaches and her neck hurts, that since the accident she has been having eye trouble and had to start wearing glasses, that she has difficulty in sleeping at night, that she can’t do housework like be-for the accident, * *
“Clarence E. Carnell, a school teacher, testified that he was injured on the right side of the neck and underneath the right shoulder blade, that he now has difficulties raising up his right arm, that following the accident he consulted Dr. Carl Bird, that Dr. Bird massaged his neck and shoulder, that x-rays were made the next morning, that he received about eight more treatments, that his medical expense was approximately sixty dollars and his wife about ninety, that since the accident he has been unable to throw baseballs with his son, that since the accident he has had to hang up the clothes, take them out of the washing, and help with the dishes and vacuuming, that he was unable to take a short trip to Nashville and go to five weeks of college because it hurt him to drive an automobile, that he has pain in the use of his arm now under the right shoulder blade and in the right side of his neck, * *

Dr. A. F. Brookreson, M. D., who examined plaintiffs on August 26, 1966, approximately a week before the trial, found tenderness and a moderate rigidity in Mrs. Carnell’s cervical spine, and rigidity in Mr. Carnell’s cervical spine, with limitation of rotation of the head. Doctor Brookreson testified that the symptoms which he found could have resulted from an occurrence such as the automobile collision in which the plaintiffs were involved.

Although appellants in their brief have devoted several pages to the testimony of the defendants’ medical witnesses, we are, of course, not permitted to weigh such testimony, unfavorable to plaintiffs, against the evidence above recited, favorable to plaintiffs.

There clearly was evidence from which the trial court could reasonably have found that the $75.00 verdict for Clarence and the $100 verdict for his wife were grossly inadequate. Appellants seek to minimize the injuries as “trivial,” evidenced largely by subjective complaints. However, plaintiffs’ evidence would clearly authorize a finding otherwise. Appellants emphasize that plaintiffs, both of whom were school teachers, lost no time from their jobs and, therefore, no wages as a result of their injuries. In part, this was explained by the fact that their period of treatment, to some extent, coincided with the “cotton picking vacation” of the school at which they taught. In any event, the absence of loss of wages would not render the ruling of the trial court unreasonable and an abuse of discretion. See Mahowald v. Garrison, Mo.App., 397 S.W.2d 713, 715-716 [1]. We conclude that the trial court’s order as to Counts I and II was not an abuse of discretion.

By Count III, Qarence sought to recover for loss of services, society, companionship and consortium of his wife and for medicai expenses paid by Clarence for his wife’s injury. The evidence was that Clarence paid $90 for his wife’s medical expenses and that his wife’s ability to perform her household services had been impaired. In such circumstances, the trial court properly could conclude that the verdict of the jury favorable to defendants on this count was against the weight of the evidence, particularly in view of the finding against defendants on the issue of liability generally.

Count IV, by which Mrs. Carnell sought recovery for loss of support and maintenance by her husband, and loss of society, companionship and consortium of her husband, is in a somewhat different situation. Although appellants refer to the dissenting opinions in Novak v. Kansas City Transit, Inc., Mo.Sup., 365 S.W.2d 539, and Shepherd v. Consumers Cooperative Association, Mo.Sup., 384 S.W.2d 635, we decline the implied invitation to reconsider the question of the right of a wife to maintain an action for loss of the husband’s society, etc. However, as with the husband’s right of action for loss of consortium (see 27 Am.Jur., Husband and Wife, § 503, p. 102), the loss of the husband’s consortium is essential to the wife’s cause of action. See Nichols v. Blake, Mo.Sup., 418 S.W.2d 188, 190-191 [5,6]. We find no evidence in the record before us of any interference with or impairment of the relations between Mrs. Carnell and her husband. Nor is there evidence from which such interference might reasonably be inferred. See Manley v. Horton, Mo.Sup., 414 S.W.2d 254, 261 [15,16]. Proof of such interference was essential to Mrs.' Carnell’s cause of action. In absence of such proof, no submissible case was made on her claim under Count IV, and the trial court’s sustaining the motion for new trial on the grounds that the verdict on that count was against the weight of the evidence was an abuse of discretion and may not be sustained. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 827-828 [1,2], [3]; Williams v. Cass, Mo.App., 372 S.W.2d 156, 158 [1-6].

As for Count V, damage to plaintiffs’ automobile, the jury’s verdict was in the amount of an estimate plaintiffs obtained of the cost of repairing the damage to their automobile. However, plaintiff Qarence Carnell testified that he had worked as an automobile salesman and that he knew that the trade-in value of the car before the collision was $2800, its cash value $2500, and that after the collision it had a fair market value of $1500. When asked by appellants’ counsel to explain the difference between his estimate of the value of the car and the estimated cost of its repair, Mr. Carnell stated:

“If you have ever worked around a car dealership or have a hobby of fooling around automobiles like I have, it is very apparent that there are two types of cars that people do not want, and one of them is a taxicab, and the other one is a car that has been damaged in a wreck. They just won’t buy them over the used car market, off of a used car lot, if they are that type of a car.”

Rules here applicable are stated in Langdon v. Koch, Mo.App., 393 S.W.2d 66, 69 [5], 70 [6-9], as follows:

“ * * * It is the general rule in Missouri that where an automobile or other property having a readily ascertainable market value suffers substantial injury, the proper measure of damage is the difference in the reasonable market value of the article immediately before and immediately after the injury. Hood v. M. F. A. Mutual Insurance Co., Mo.App., 379 S.W.2d 806, and cases cited at Footnote 7, p. 812; Barnes v. Elliott, Mo.App., 251 S.W. 488(4); see also West’s Missouri Digest, Damages,
‡ ‡ * jJc >f: *

“It is the rule in Missouri and a great many other states that an owner may testify as to the reasonable value of an article of personalty which has been damaged or destroyed without further qualification. State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 72; Keeton v. Sloan’s Moving and Storage Co., Mo.App., 282 S.W.2d 194(10); West’s Missouri Digest, Evidence, The weight and value of such testimony is for the trier of the fact. 3 Wigmore, Evidence (3rd ed.) § 716, p. 48; 20 Am.Jur. Evidence, § 892, p. 751; State ex rel. Terry v. Ace Storage & Moving Co., Mo.App., 135 S.W.2d 363(9). * * *”

Under these rules, Mr. Carnell’s testimony would have constituted substantial evidence of greater damage. We cannot, therefore, say that the trial court’s ruling on this count was arbitrary.

The order for new trial is affirmed as to Counts I, II, III and V. The order for new trial as to Count IV is’ reversed, with directions to reinstate the verdict on such count and enter judgment thereon in favor of defendants.

HOUSER, G, not sitting.

HIGGINS, G, concurs.

PER CURIAM:

The foregoing opinion by WELBORN, G, is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Floyd E. BECKER, Appellant, v. ST. FRANCOIS COUNTY, Missouri, and M. J. Mount, Roy E. Presnell, and Denny M. Smith, Judges of the County Court, Respondents.
    No. 52938.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.

      Roberts & Roberts, by: Raymond S. Roberts, Farmington, for appellant.
    Jack Moore, Pos. Atty., St. Francois County, Farmington, by David L. Colson, Asst. Pros. Atty., Farmington, for respondents.
   HOUSER, Commissioner.

Action for declaratory judgment. Floyd E. Becker impleaded St. Francois County and the judges of the St. Francois County Court for a judicial declaration that certain fees and payments received by him, disallowed following an audit of his books as County Clerk, should be allowed plaintiff and that he not be required to reimburse the county therefor. After a trial of the issues the court rendered judgment declaring plaintiff indebted to the county in the sum of $2,880.93. From that judgment plaintiff appealed to the St. Louis Court of Appeals, which court transferred the case to this court on the ground that St. Francois County is a party to the record. Becker v. St. Francois County, Mo.App., 413 S.W.2d 587. We have jurisdiction, for the reason and under the authorities cited in the opinion of the court of appeals.

Three types of fees are involved: (1) for keeping records in connection with the activity of distributing surplus agricultural commodities to needy persons, undertaken by the county under the provisions of § 205.-960; (2) for extending the tax on the assessment book; (3) for preparing the county financial statement.

I. Fees paid under surplus commodities program.

The county court made an order in which it “allotted $100.00 per month to [augment] the County Clerk’s salary * * * ” for clerical services under this program. Under this arrangement plaintiff received $1,-200. Paragraph 1 of § 205.960 authorizes counties to establish such a program. Paragraph 3 thereof directs the division of welfare of the state department of health and welfare to reimburse to the extent of fifty per cent the sum expended by a county, among other things, for “maintenance of proper records” in connection therewith, provided the expenditure has been approved by the department of welfare.

When the county embarked upon this program it became a county function and the duty devolved upon the county clerk to keep the records and perform the necessary clerical services in connection therewith. These new and additional clerical duties, required to be performed in connection with a county function, were germane to the official duties of the office of county clerk. §§ 51.120, 51.150.

Appellant argues that the enactment of § 205.960 required him as a county official to perform work beyond the statutory duties of a county clerk, and that, there being no statute prohibiting a county clerk from being paid for extra services, a contract therefor is lawful, and that the order of the county court “was a lawful contract.”

In the first place, the order of the county court was not a lawful contract. Section 432.070 provides any contract made by a county shall be in writing and shall be subscribed by the parties thereto. Although the county court spread its order upon the record appellant is not shown to have filed any acceptance of the order. As to him the “contract,” if it be a contract, was oral. Cook v. St. Francois County, 349 Mo. 484, 162 S.W.2d 252, 254 [2].

In the second place, the mere fact that additional duties were imposed upon appellant did not entitle him to additional compensation. “At every session of the legislature laws are enacted which affect the duties of many state and county officers. The mere fact that such legislation may result in an increase in the work and responsibility of an officer does not entitle him to claim additional compensation.” Mooney v. County of St. Louis, Mo.Sup., 286 S.W.2d 763, 766 [5].

More importantly, the right of a public officer to be compensated by salary or fees for the performance of duties imposed on him by law is purely a creature of statute, Felker v. Carpenter, Mo.Sup., 340 S.W.2d 696, 701 [4]; State ex rel. Forsee v. Cowan, 284 S.W.2d 478, 481 and “[t]he general rule is that the rendition of services by a public officer is deemed to be gratuitous, unless a compensation therefor is provided by statute.” Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857, 860 [5]; State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 403. Before a county clerk or other public official may retain fees or other payments received by virtue of his office he must point out the statute authorizing such payments. State v. Ludwig, Mo.Sup., 322 S.W.2d 841, 849 [11]; Nodaway County v. Kidder, supra, 129 S.W.2d, 1. c. 860 [8], and cases cited.

Appellant, of course, cannot point to any statute authorizing the payment of compensation for the services rendered. Neither Chapter 205 nor any section in any other chapter makes provision for extra compensation to county clerks for the performance of the new and additional duties under Chapter 205. Appellant’s entire claim is based upon his “contract” with the county court.

Finally, the order of the county court was void as against public policy. Even if extra services are required to be performed, if they are germane to the official duties of the office, the employment of an officer at extra pay is against public policy, and he is not entitled to compensation for performing the services. State ex rel. Forsee v. Cowan, supra; Polk Township, Sullivan County v. Spencer, 364 Mo. 97, 259 S.W.2d 804, 805 [2]. In this connection we approve the following from Anno., 159 A.L.R., pp. 606, 607 and 608:

“As a general rule the salary attached to a public office constitutes the full compensation for all the services required to be performed by a public officer, so that he may not assert a right to additional compensation although by statute or ordinance the duties of his office, as it was constituted at the time of his appointment, have been increased, or he has performed additional services which are merely incidental to the duties of his office.
⅜ * * * * *
“(1) If the extra services which the officer undertakes to perform at an agreed extra compensation are a part of or germane to the official duties of his office or are merely incidental to those duties, the existence of an express contract for additional compensation does not prevent the operation of the rule referred to supra, I, that he is not entitled to extra compensation for extra services rendered by him. In such case the contract for additional compensation is invalid as against public policy.”

The court did not err in finding appellant indebted to the county in the sum of $1,200 on account of fees paid under the surplus commodities program.

II. Fees paid for extending the tax.

After assuming the office of county clerk January 1, 1955 Floyd Becker always charged 3‡ per name for extending the tax on the assessment book. This was the practice of his predecessor in office. In two previous audits this method was approved and fee bills based on 3‡ per name were approved. The County Clerk of St. Charles County based his fees on the same method and the state auditor approved his bill in every audit conducted in St. Charles County.

In the present audit the supervisor counted the extensions made, not the names. An extension is a combination of all of the separate parcels of property in a section or block owned by one person; the valuation of several parcels in a section or block, owned by the same person, would be consolidated into one entry. As a result he determined that there had been an overcharge of $325.21 for the years 1962 and 1963.

Section 51.400, subd. 1. provides: “The following fees and compensation shall be allowed to and collected by the clerk of the county court, in addition to other fees now provided by law, for services rendered: (1) For extending the tax on the assessment book, three cents for each name, to be paid by the state and county in proportion to the number of tax columns used by each.”

Appellant contends that in clear and unambiguous language the legislature has provided for compensation at the rate of 3‡ per name; that the statute needs no construction, but should be applied according to what it says, “three cents for each name.” Respondents join with .appellant in urging that the language is clear and unambiguous, and that the statute should be construed according to its plain meaning; but the clear meaning they attribute to the language is that the clerk gets 3‡ for each extension he makes. Respondents argue that the purpose of the statute is to provide payment for the act of extending the tax on the assessment book; that an extension is made by applying the tax rate to the assessment and making the proper notation in the proper column across the page for the total tax; that the statute provides compensation at the rate of 3‡ per name for each name so extended; and that in instances where the clerk does not extend the tax across the page of the tax assessment record he does not earn the 3‡ fee.

A doubt arises on the question whether § 51.400, subd. 1. provides compensation for each name counted or for each extension made. There is ambiguity in the language. We must construe the section. Statutes providing compensation for an officer are strictly construed against the officer. State ex rel. Smith v. Atterbury, supra, 270 S.W.2d, 1. c. 403 [2]; Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285. Appellant urges that since there has been no change in the wording of the section from 1939 to the present, and since the commonly used method of counting the names and not the extentions, as shown by the past practices of the state auditor’s office, must have been known to the legislature when it reenacted the same language time after time, it must be presumed that the legislature knew of, and adopted such construction, and thereby approved of this method. We recognize these rules of construction and while not binding on the courts they are, of course, factors to be given serious consideration. Another important canon of construction, however, and one which we think is of even greater importance in the situation here encountered, is that in determining the meaning and intent of the legislature the words used must be considered in pari materia, and cognate sections studied. State ex rel. Wright v. Carter, Mo.Sup., 319 S.W.2d 596, 600 [7].

In the statutes governing the actions of assessors and prescribing their fees for making the real estate and tangible personal books we find a cognate situation. Section 53.110, which prescribes fees for the services of county assessors in counties of the second class at 300 per list and 60 per entry for making the books, contains this limitation: “ * * * all the real and tangible personal property assessed to one person to be counted as one name. ” Section 53.130, which provides for the compensation of county assessors in counties of the third and fourth class, after prescribing a fee of 80 per entry for making the real estate and tangible personal property assessment books, contains the same limitation : “ * * * all the real estate and tangible personal property assessed to one person or to husband and wife to be counted as one name, * * Section 137.215 provides that in making up the assessor’s books (the land list) the assessor “shall consolidate all lands owned by one person in a section, and all town lots owned by one person in a square or block, into one tract, lot or call, when it is practicable; * * * ” and for unnecessarily dividing the same up into more tracts than one a penalty is provided, namely, the deduction from the account of the assessor of 100 for each tract or lot not so consolidated. Section 137.225, subd. 2., applicable to certain counties as specified in § 137.230, contains a similar provision. Section 137.235 then provides for the computation and extension of the taxes in the assessor’s book, by the county clerk. These sections, read together with other cognate sections, convince us that the legislature is committed to the principle of consolidation, whereby in the case of properties lying in sections all holdings of a property owner in any one section shall be grouped together under one name, and in the case of town lots all holdings of a property owner in any one square or block shall be consolidated into one tract, lot or call, insofar as may be practicable, and that under § 51.400, subd. 1. (1), the county clerk is to be paid for extending the tax on the assessment book three cents for the one name in each section into which all of that property owner’s holdings shall have been consolidated, and three cents for the one name in each square or block into which all of that property owner’s holdings shall have been consolidated. In other words, when the legislature in § 51.-400, subd. 1. (1) prescribes a fee of 30 for each “name” it is intended that each name for which a 30 fee is charged represent and stand for all of the various parcels, tracts and lots of land owned by one entity in each section and in each square or block, consolidated into one. It does not mean that there shall be a payment on the basis of the number of names in the sense that there shall be a payment of 30 for extending the tax on every piece of property, where there are a number of separate holdings by one landowner in one particular section, square or block. See State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 405 [7], holding that “there can be no payment [to assessors] on the basis of the number of names.”

To make this construction of the statute perfectly clear, take this example: John Doe owns Lots 1, 2 and 3 in Block 1 of Jones Addition to a certain city; Lots 10 and 12 in Block 2 of Smith Addition to the city; the SWJ4 SW54 of Section 6, Township 20, and the NEJ4 and the SWJ4 of Section 10, Township 20, all in the same county. In extending the tax on these eight separate properties belonging to John Doe the clerk would he entitled to 3‡ for the extention in Block 1, Jones Addition; 3<¡: in Block 2, Smith Addition; 3‡ in Section 6 and 3‡ in Section 10, or a total of 12‡ for extending the taxes of John Doe in that county.

The court did not err in finding for the county on the item of fees paid for extending the tax on the assessment book.

III. Fees paid for preparing the financial statement.

In charging fees for preparing the 1962 and 1963 financial statement Floyd Becker estimated the number of words and figures for which he charged, on the basis of every word, figure, comma, period, semicolon, etc. He explained that he could not possibly count every word, figure and symbol contained in the statement, and therefore he adopted a sampling method, taking a sample out of the beginning, middle a'nd end and estimating on that basis arrived at a total per column inch. This was the same method adopted by previous clerks and previous audits had approved this procedure. The auditor, who counted only words, figures and dollar marks (not punctuation marks, decimal marks or other symbols) counted each word, figure and dollar mark in the statement, and on that basis found and established an overcharge of $777.43 for the two years in question.

The governing statute, § 50.810, subd. 2., provides that for the preparation of the copy for the financial statement the court may allow not less than 10‡ nor in excess of 30⅞5 “for every hundred words and figures.”

Mr. Becker’s method of computing his fees for this service was improper in two respects: (1) in estimating by sample instead of counting every word and. figure, and (2) in counting punctuation marks. The statute plainly restricts the count to words and figures. Commas, periods, semicolons and other punctuation marks are not figures. They are marks. Figures are written or printed characters representing a number; numerals; digits; letters or mathematical symbols. Webster’s New International Dictionary, 2nd ed., Unabridged.

The court properly upheld the auditor on the item of fees paid for preparing the financial statement.

No error appearing, 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.

      . All section citations refer to RSMo 1959, V.A.M.S.

      . With this exception: he made no charge for names not certified to the state tax commission (charitable institutions, forest lands and the property of the state and its political subdivisions, which had no valuation).