author: WELBORN, Commissioner. PER CURIAM.

text:
    MEDICAL WEST BUILDING CORPORATION, Plaintiff-Appellant, v. E. L. ZOERNIG & COMPANY, Defendant-Respondent.
    No. 51952.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 8, 1967.
    Opinion Modified and Cause Remanded May 8, 1967.

      Guilfoil, Caruthers, Symington, Montrey & Petzall, Rexford H. Caruthers, Gerald M. Smith, Darold E. Crotzer, Jr., St. Louis, for appellant.
    William C. Maier, Charles R. Judge, Du-bail, Judge & Kilker, Arnot L. Sheppard, Gentry, Bryant & Sheppard, St. Louis, for respondent.
   WELBORN, Commissioner.

This is an action by Medical West Building Corporation, owner, for damages for breach of lease by E. L. Zoernig & Company, tenant. A jury returned a verdict in favor of the plaintiff for $17,220 damages, plus $3,616.20 interest. Upon motion of the defendant, the trial court set aside the verdict and entered judgment for defendant. Plaintiff has appealed.

Medical West Building Corporation was the owner of an office building located in St. Louis County. E. L. Zoernig & Company leased a suite of offices in the Medical West Building for a term of five years, from March 1, 1957 to February 28, 1962, at a rental of $400 per month. The Security Loan & Discount Corporation, in which the Zoernig Company had a financial interest and of which Richard J. Zoernig was the executive officer, had a ten-year contract with the owner to manage the building.

In February, 1958, O. S. Rudman and Ann Rudman acquired from Zoernig the majority stock of the Medical West Corporation. As a part of the transaction, the Rudmans agreed to cause Medical West to employ Richard J. Zoernig as building manager. The agreement referred to the Zoer-nig Company lease and then provided:

“If at any time during the term of the present lease or the renewal thereof as aforesaid, the employment of Richard J. Zoernig as Building Manager is terminated by the corporation, then the lessee shall have the right to cancel the remaining term of said lease without penalty provided notice of such cancellation is given within ninety (90) days following the effective date of termination of such employment.”

Medical West and Richard Zoernig entered into a management agreement for a one-year term, beginning February 15, 1958, with right of renewal.

In March, 1958, the new owners decided to alter the policy regarding parking facilities provided for tenants and their patients or customers. This action eventually produced the litigation reported in Bryan v.. Medical West Building Corporation, Mo. App., 345 S.W.2d 389. Richard Zoernig disagreed with the new policy and declined to circulate the notice of it to the tenants.

On March 25, 1958, a meeting, called by Rudman, was held. In attendance were about fifteen tenants, who were also stockholders of Medical West, Mr. Rudman, and Selig Oxenhandler, a real estate broker who had participated in the negotiations leading to Rudman’s stock purchase. Oxen-handler, although not a stockholder, had been elected vice-president of Medical West. An attorney for Medical West and an attorney for some of the tenants were also present.

According to Rudman, the tenants voiced numerous protests about Zoernig’s management of the premises, including inadequate cleaning, lack of attention to complaints and varying rental charges. According to Rudman, the parking issue was discussed merely by way of explanation to the stockholders of the corporation’s financial problems. Oxenhandler stated that various complaints of the tenants were aired, but that parking was discussed only insofar as the tenants were complaining that employees of tenants were occupying an excessive amount of parking space.

Testifying as a witness for the defendant, the attorney representing the stockholders stated that the parking issue was the only matter discussed at the meeting. According to him, Rudman explained the corporation’s financial position and the necessity of charging for parking. A spokesman for the tenants replied that they were entitled to free parking under their leases and intended to insist upon it, regardless of the “supposed bad condition of the finances of the corporation.” The witness stated that nothing was settled at the meeting.

The next day, Rudman and Oxenhandler met with Zoernig and told him of the complaints against him which had been voiced at the meeting. According to Rud-man, Zoernig was upset, resentful of the tenants’ lack of appreciation for his efforts and said that he did not wish to have anything more to do with them. Rudman quoted Zoernig as saying “[You can] have the management.” Oxenhandler testified that Zoernig was disgusted with the tenants’ attitude and “didn’t care whether or not he continued to take care of the thing or do or have anything to do with most of them because * * * he felt that those that complained the most were those he did the most for.” Oxenhandler also stated that before the meeting concluded, Zoernig instructed his secretary to turn the keys over to Oxenhandler that afternoon.

Zoernig’s version of the meeting was somewhat different. According to him, Oxenhandler had previously begun to take a hand in the management of the building and Zoernig had done nothing after Oxen-handler began to take over the management duties. Zoernig testified that, when Rud-man and Oxenhandler came to his office, “the very first statement that was made when they came into my office was they were surprised that I was still around, they thought I would either have been shot or chased out. The next statement was made pertaining to parking, putting in parking charges when I had represented free parking to all the tenants. I was very much disturbed at that time. The next remark was made by Mr. Rudman that he thought that perhaps my usefulness as manager had disappeared. * * * Then I just reiterated what I had been saying ever since the building had been sold, that a mistake was being made by putting in parking charges when I had represented it to the tenants it would all be free parking included in their rent and I didn’t know why I should be blamed for something that the new owners wanted to do.” Zoernig denied that he stated he wanted to quit as manager.

Rudman stated that immediately after the meeting with Zoernig he asked Oxen-handler to take over the management of the building. Oxenhandler got the keys from Zoernig’s secretary that afternoon and later sent out the April 1 rent notices. Subsequently, the management files were turned over to Oxenhandler by Zoernig’s secretary.

On March 27, 1958, Oxenhandler presented to Zoernig for his signature a typewritten letter addressed to Medical West, stating: “I, Richard J. Zoernig, wish to be relieved of my responsibility as building manager of the Medical West Building effective as of March 31, 1958.” Zoernig refused to sign the document.

On March 29, Oxenhandler asked Charles Judge, an attorney for the Zoernig Company and one of the original stockholders of Medical West: “Why doesn’t Richard Zoernig give up the management of the building?” Judge replied: “If you give him a little time, have a little patience, he may come to that conclusion and be willing to step down on the basis of E. L. Zoernig moving out of the building.” Ox-enhandler, according to Judge, replied: “I believe something like that can be worked out.”

On April 11, 1958, Oxenhandler, as vice-president of Medical West, advised Richard L. Zoernig of the receipt of the records and keys. In the letter he stated: “This action on your part is construed by this company to be your voluntary relinquishing of your duties of building manager and therefore terminates your Management Contract as of April 1, 1958.”

On April 15, 1958, on behalf of Richard Zoernig, Judge addressed a letter to Oxen-handler in which he stated:

“Your letter to Richard Zoernig of April 11, 1958 has been turned over to me for attention. Your assumption that his act of delivering to you records, keys and other items constituted a relinquishment of his duties as Building Manager is wholly unwarranted. He did these things solely because you as Vice President and Director of the Corporation requested him to do so. It is our position that his Management Contract is still in full force and effect and he stands willing to continue to perform his duties thereunder.

“If it is the desire of the Corporation to negotiate a termination of this Management Contract I will be glad to discuss this matter with you.”

On April 24, 1958, Gideon Schiller, of the law firm of Ackerman, Schiller & Lake, and acting on behalf of Medical West, wrote Judge as follows:

“This will acknowledge your letter of April 15, 1958 to S. Z. Oxenhandler concerning the Richard Zoernig matter. I have discussed this matter with Oxen-handler and I can only conclude from the facts at hand that Zoernig relinquished his duties as Building Manager of his own accord although in fact there were ample grounds for discharging him.

“Should you care to discuss the matter with me please give me a call at your convenience.”

On June 4, 1958, Judge, as attorney for Zoernig & Company, addressed a letter to Mr. Rudman as President of Medical West Building Corporation. In this letter he stated:

“Under the terms of the agreement entered into on February 3, 1958 by and between Richard J. Zoernig, Emil L. Zoernig and Charles R. Judge, first parties and O. S. Rudman and Ann Rudman, second parties, pertaining to the sale of controlling stock of Medical West Building Corporation, it was provided that if the employment of Richard J. Zoernig as building manager of Medical West Building were terminated, the lessee of Suite 203 shall have the right to cancel the remaining term of its lease without penalty upon notice given within ninety (90) days following the effective date of termination.

“Since Medical West Building Corporation has taken the position that the employment of Richard J. Zoernig as building manager is terminated, please be notified that E. L. Zoernig & Co., Inc., lessee of Suite 203 of Medical West Building under lease dated February 1, 1957, does hereby exercise its right to cancel the remaining term of said lease without penalty. You will be advised shortly as to the date of removal.”

On July 30, 1958, Zoernig & Company entered into a lease for other premises. On July 31, 1958, Judge, on behalf of Zoernig & Company, wrote Rudman: “With reference to our letter to you of June 4, 1958 exercising our right to cancel the remaining term of our lease of Suite 203 of Medical West Building, please be advised that we will vacate said suite on or before September 1, 1958.”

Following the transmittal of this letter, Judge had a telephone conversation with Gideon Schiller, Medical West’s attorney. Schiller asked if Zoernig & Company really wanted to move. Judge replied: “Yes, is there any objection to this?” Schiller stated: “I don’t know, but I’m going to be with Mr. Rudman over the week end and if there is I will let you know promptly.”

On August 6, Judge received a letter dated August 5 from Ackerman, Schiller & Lake, signed by Paxton H. Ackerman, which stated, in reference to Judge’s July 31st letter:

“Medical West Building Corporation has no control over the desires of your client to vacate their suite; however, our client shall expect them to live up to their obligations, particularly for payment of rent under the terms of their lease, inasmuch as it is the position of our client that E. L. Zoernig & Co., Inc., as Lessee, has no legal basis for cancellation of their lease.

“That silence on the part of our client not be construed as an admission or acquiescence in the respects of your instant and prior correspondence in this matter, we are merely writing this letter on behalf of Medical West Building Corporation to advise that our client is not in agreement with the position expressed by you in your correspondence to them.”

Zoernig & Company did vacate the Medical West suite. Medical West was unable to lease the quarters during the remainder of the term of the Zoernig lease and thereafter brought this suit for the rental due during the balance of the term amounting to $17,220 with interest in the amount of $3,616.20.

Defendant’s answer stated its position that Zoernig’s employment had been terminated by the plaintiff and that defendant exercised the right of cancellation given it in such event. The answer also alleged that, on July 31, notice of vacation of the premises had been given to the plaintiff, that, from June 4, 1958 until after July 30, 1958, plaintiff had failed to advise the defendant of its opposition to cancellation of the lease and plaintiff was therefore estopped to deny that the lease was validly cancelled.

The issue of Richard Zoernig’s services as building manager was submitted to a jury. Plaintiff’s instruction called for a verdict in its favor if the jury believed that Zoernig voluntarily terminated his position. Defendant’s instruction called for a verdict in its behalf if the jury believed that plaintiff terminated Zoernig’s employment. On these instructions the jury returned a verdict in favor of the plaintiff.

Thereafter the court considered the issue of estoppel as a separate equitable issue and concluded that because of the failure of the plaintiff to respond to the June 4, 1958 notice of cancellation plaintiff was es-topped to deny the validity of the act of cancellation. The trial court also set aside the jury’s verdict on the grounds that there was no submissible issue on the question of the voluntariness of Zoernig’s leaving his position, the court concluding that the leaving was obviously by consent and actively participated in by Mr. Rudman and Mr. Oxenhandler and was not a voluntary quitting. This appeal followed.

Appellant concedes that, if the trial court properly upheld the defense of estoppel, the setting aside of the jury’s verdict becomes of no moment. We therefore consider the estoppel question first.

Estoppel is a factual matter to be determined on the facts of the particular case. Finance Service Corp. v. Kelly, Mo.App., 235 S.W. 146, 147; Cannon v. Travelers Indemnity Company, 8th Cir., 314 F.2d 657. The numerous cases cited by the parties on this appeal involved factual circumstances different from those here. They are primarily helpful in setting out the general principles of estoppel, which we must apply here.

“The most comprehensive definition of equitable estoppel or estoppel in pais is that it is the pirnciple by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion was allowed. In the final analysis, however, an equitable-estoppel rests upon the facts and circumstances of the particular case in which it is urged, considered in the framework of the elements, requisites, and grounds of equitable estoppel, and consequently, any attempted definition usually amounts to no-more than a declaration of an estoppel under those facts and circumstances.” 28. Am.Jur.2d, Estoppel and Waiver, § 27, pp. 627-628. See State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607.

In this case, the conduct relied upon to establish the defense was the failure of plaintiff to respond to the June 4th notice of cancellation until after defendant had obligated itself under a new lease of premises to replace those leased from plaintiff. That silence may give rise to an estoppel is well recognized. State ex inf. McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 615 [9], 106 A.L.R. 1169. However, silence may properly be relied upon only when the party to be es-topped is under a duty to speak up and not remain silent. “For a ‘standing by’ to become the predicate of equitable estoppel, it is necessary that the person remaining silent be under a duty to speak. In other words, he must speak only when common honesty and fair dealing demand that he do so.” State ex inf. McKittrick ex rel. City of California v. Missouri Utilities Co., supra, 96 S.W.2d 615 [10],

As the defendant was obviously aware, the situation which gave it the right to cancel its lease was the plaintiff’s termination of Richard Zoernig’s services as building manager. Although defendant points •out that the correspondence from plaintiff’s officer and attorney, expounding plaintiff’s position that Zoernig had voluntarily quit the management job and had not been discharged, was addressed to Richard Zoer-nig and Charles Judge and not to the defendant-lessee, defendant made no effort to show lack of actual knowledge of the ■conflicting positions of the parties to the management contract. In view of Richard Zoernig’s position as an executive officer of defendant, its knowledge of plaintiff’s previously expressed position could hardly have been denied by defendant. Without question, Mr. Judge, who wrote the cancellation notice, was aware of the plaintiff’s position. The April 24th letter was addressed to Judge. In fact, he testified that, at the time of preparation of the cancellation notice, he was aware of plaintiff’s position with respect to the management contract.

We cannot agree that in these circumstances the June 4th letter placed Medical West under any obligation to reiterate its previously stated position. Medical West was in possession of no knowledge not known to the lessee. Both parties were aware of what had occurred and both had previously expressed their divergent views upon the conclusion to be deduced from the occurrences. The lessee chose to act upon its conclusion that Medical West had terminated the services of Zoernig. That conclusion was in no manner encouraged by Medical West, which had, in fact, taken the known position that Zoernig had voluntarily surrendered his position. Having chosen to act upon the conclusion favorable to its position, the lessee could not impose any duty upon the lessor by an announcement of intention to act upon its conclusion.

Furthermore, there is no evidence in this case of action by the lessee in reliance upon Medical West’s failure to reoly to the June 4th letter. The defendant did ultimately give notice of vacation of the premises and did, on July 30, enter into a lease for space elsewhere. However, insofar as the record here shows, that action was taken in reliance upon the defendant’s position that it had the right to terminate the lease, a position which it had taken without any encouragement from plaintiff.

The defendant here, in its brief, acknowledges an absence of direct evidence of reliance by it upon plaintiff’s failure to respond to the June 4th communication. According to defendant, the absence of such testimony is “due (1) to the exclusion of testimony by Richard Zoernig over plaintiff’s objection that only E. L. Zoer-nig, as managing officer of defendant who negotiated its new lease, was competent to testify * * * and (2) to the feeble condition of E. L. Zoernig which prevented him from testifying.” The record shows that Richard Zoernig testified that his father, E. L. Zoernig, negotiated the new lease. Richard Zoernig testified that, as a stockholder and officer of defendant, he knew why the lease for the new space was not executed until July 30. However, when plaintiff’s counsel objected to the witness’s stating the reason for the delay, defendant’s counsel withdrew his question and nothing appears, by way of offer of proof or otherwise, as to what the witness might have testified. Richard Zoernig did testify that his father was very feeble and that he would not approve of his father’s appearance as a witness. However, that fact would not dispense with the- necessity of proof of an essential element of the defense relied upon. The burden was upon the defendant to prove the essential elements of the defense of estoppel. Emery v. Brown Shoe Company, Mo.Sup., 287 S.W.2d 761, 767 [4]; Midwestern Machinery Company v. Parsons, Mo.App., 385 S.W.2d 224, 228 [6-10].

In our opinion, the mere fact of delay in entering into the new lease does not establish the element of reliance. The delay might have been occasioned by many factors, wholly unrelated to the silence of plaintiff. Absent some evidence on the subject, we cannot conclude that the mere fact of delay established that the action ultimately taken was in reliance upon plaintiff’s silence. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498 [12-14],

In our opinion, the defendant’s evidence did not establish its defense of estoppel. Therefore, we must determine whether or not the trial court properly set aside the jury’s verdict, necessarily based upon the jury’s finding that Richard Zoer-nig voluntarily terminated his management contract. In reviewing the matter, the evidence must be viewed in the light most favorable to the verdict. Rhyne v. Thompson, Mo.Sup., 284 S.W.2d 553, 556 [1]; Mo.Digest, Appeal and Error, 934 [1], 989. So viewed, there can be no doubt that there was evidence to support the jury’s verdict. The testimony of Rudman and Oxenhandler would justify the finding which the jury made. That the evidence might have supported a contrary verdict or that it might have supported a verdict favorable to defendant on a theory not submitted would not justify setting aside the verdict.

The unsubmitted theory was that Zoer-nig’s quitting was not voluntary but was the result of plaintiff’s action. See Bussmann Mfg. Co. v. Industrial Commission, Mo.App., 335 S.W.2d 456, 460 [6-11]. Defendant offered an instruction on this theory, but it was rejected by the trial court. However, the trial court granted no relief on the basis of its refusal of the instruction and the only question before us is whether or not the evidence supported the verdict on the theories submitted.

The judgment is reversed and the cause remanded with directions to the trial court to consider and act upon respondent’s motion for a new trial.

HOUSER and HIGGINS, CC, concur.

PER CURIAM:

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

HOLMAN, P. J., and HENLEY, J., concur.

SEILER, J., concurs in result.

ON MOTION FOR REHEARING OR IN THE ALTERNATIVE FOR A TRANSFER TO THE COURT EN BANC

PER CURIAM.

Respondent, by its motion for rehearing, urges that this court should not have directed the entry of judgment in favor of the appellant on the jury’s verdict. Respondent points out that its motion for judgment which the trial court sustained was coupled with an alternative motion for a new trial. Despite the requirement of Civil Rule 72.02, V.A.M.R., the trial court made no ruling on the alternative motion for a new trial.

Respondent suggests that, although the trial court made no ruling on the motion for new trial, it clearly considered that the verdict was against the weight of the evidence and that we should order a new trial on such basis. We reject this suggestion. Having found in favor of the respondent on the estoppel issue, the trial court was obviously required to expunge the jury verdict in order to enter judgment favorable to respondent. We will not speculate on what the trial court might have done had he considered the motion for new trial, as he was required to do.

Respondent alternatively suggests that we should remand with directions to the trial court to consider the motion for new trial. This action was taken when a similar situation confronted this court in State ex rel. and to Use of Hickory County v. Davis, 302 S.W.2d 892, 897-898 [6-10].

The action in Davis was taken with some reluctance, the court noting its disapproval of the practice of treating piecemeal with alternative motions. Davis was decided under § 510.290, RSMo 1949, which did not contain the requirement of Civil Rule 72.02: “If the trial court sustains a motion for judgment in accordance with a directed verdict joined with a motion for new trial in the alternative, the trial court shall make and enter of record a ruling on the alternative motion for new trial to be effective if the ruling on the motion for judgment is reversed.” This added provision was obviously intended to avoid the situation presented in Davis. See Federal Rule 50(c). Litigants who elect to take advantage of the privilege of combining a motion for judgment with an alternative motion for a new trial have an obligation to see that the trial court act, in accordance with Rule 72.02, at the risk of being held to have waived their motion for new trial. See Vera Cruz v. Chesapeake & Ohio Railroad, 7th Cir., 312 F.2d 330, 332 [5],

Appellant has offered no objection to the suggestion advanced by respondent’s motion for rehearing. In the interest of justice, we will in this case modify our original direction and reverse the trial court’s judgment and remand the cause with directions to the trial court to consider and act upon respondent’s motion for a new trial.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri at the relation of Glen FOSTER, Appellant, v. Paul PRICE, Herbert Brooks, and Oscar Johnson, Judges of the County Court of Reynolds County, Missouri, and L. M. Hackworth, Clerk of the County Court of Reynolds County, Mo., Respondents.
    No. 52061.
    Supreme Court of Missouri, Division No. 2.
    May 8, 1967.

      Robert B. Baker, Ellington, Dorman L. Steelman, Salem, for relator-appellant.
    William H. Bruce, Jr., Centerville, for respondents.
   PRITCHARD, Commissioner.

The dispositive issue is whether the Supreme Court has appellate jurisdiction of this case.

Primarily, this is a suit challenging the validity of a stock law election in Reynolds County, Missouri. Relator, by way of a petition for a writ of certiorari filed in the Circuit Court, sought to there review the stock law petition on which respondent county judges acted to order the stock law election to be held on grounds “(1) Failure to allege that all of Reynolds County is included in the stock law petition”; and “(2) That it is not signed by more than one hundred householders in said county and that it was otherwise insufficient and void.”

The trial court granted the petition for a writ of certiorari, and the entire records of the stock law election proceedings were brought up to the Circuit Court. Relator there requested permission to “introduce a very short bit of evidence to explain parts of this record.” The trial court ruled that no further evidence would be received, other than the record which was brought up pursuant to the writ of cer-tiorari, because counsel refused to disclose the nature of the evidence he wished to offer, or give a good reason to order the introduction of evidence.

Relator assigned as error in his amended motion for new trial that the refusal to allow him to adduce evidence in support of his contention that the petition was not signed by one hundred or more householders of the county thereby denied him a hearing on the issues involved and “deprived Relator of his rights and property without due process of law, contrary to Article I Section 10 of the Constitution for the State of Missouri and the Sth and 14th Amendments to the United States Constitution.” A similar jurisdictional statement is made in relator’s brief in this court. The allegation of error and the jurisdictional statement complaining of the court’s ruling excluding offered evidence do not involve a construction of the due process clauses of the Missouri or federal constitutions within the provisions of Mo. Const. 1945, A.rt. V, § 3, V.A.M.S. “The Missouri court had jurisdiction of defendant and if error occurred in the admission of evidence the instant charge does not establish that the ruling constituted a denial of constitutional rights rather than a mere error in ruling. ‘Due process of law does not assure a litigant * * * against a judicial error in respect to the admission or exclusion of evidence.’ O’Brien v. O’Brien, 294 Ky. 793, 172 S.W.2d 595, 609 [26, 27], and Federal cases there cited.” State ex rel. Houser v. St. Louis Union Trust Co., Mo., 248 S.W.2d 592, 596. See also City of Webster Groves v. Quick, Mo., 319 S.W.2d 543, 544, and 16A C.J.S. Constitutional Law § 589, p. 649, § 621, p. 818.

The case is transferred to the Springfield Court of Appeals.

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.


text:
    MIRAN INVESTMENT COMPANY, a Corporation, Respondent, v. MEDICAL WEST BUILDING CORPORATION, a Corporation, Appellant.
    No. 52141.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Motion to Transfer to Court En Banc or for Rehearing Denied May 8, 1967.

      William R. Kirby, St. Louis, for respondent.
    Rexford H. Caruthers, Guilfoil, Caruth-ers, Symington, Montrey & Petzall, St. Louis, for appellant.
   PRITCHARD, Commissioner.

The principal issue is whether plaintiff fully performed services to defendant during construction of a medical office building, and until its completion, including “such things as the acquisition of land, securing of financing, construction of a building on an approximate cost basis, securing of leases, supervision, and other services,” so as to be entitled to recover therefor under a written contract dated August 31, 1955.

Plaintiff recovered judgment against defendant for said services $48,180, and interest from the date of filing suit, September 29, 1960, totaling $67,853.50. A jury being waived, trial was to the court.

Defendant was incorporated in 1954 for the purpose of erecting a medical office building at 950 Francis Place in Clayton, Missouri. Its incorporators were Richard J. Zoernig (defendant’s president) Maryan Sheppard and Charles R. Judge (defendant’s counsel, who served as secretary). Edward A. Pollack was plaintiff’s president and Harold Pollack was its secretary-treasurer. The Pollacks also did business as Edward A. Pollack & Son Real Estate Company, for which plaintiff was the holding company.

Harold E. Pollack testified that in the Spring of 1955, Mr. Zoernig, Jr., came to his office and told him of a deal whereby he had contacts with doctors, with some leases already on hand, and that he would need financing to get the building. Zoernig requested a second deed of trust on the building, which Pollacks declined. They suggested to him to get a large first deed of trust to take care of the matter, to which Zoernig agreed. With the assistance of John Merle (connected with Merle-Jung, Inc., builder of the medical building), Pollack contacted several insurance companies and on July 8, 1955, a conditional commitment for a loan was received from Great West Life Assurance Company for $930,-000, and a firm permanent loan commitment was obtained September 29, 1955. Prior to that, a conditional construction loan commitment was obtained August 8, 1955 from the First National Bank in St. Louis.

The written agreement was drawn by defendant’s counsel, Charles R. Judge, on August 31, 1955, on which date it was executed by the parties: Medical West Building Corporation, first party; John Merle, Jr., R. W. Jung, Jr., Richard Zoernig and Miran Investment Company, second parties; and E. L. Zoernig doing business as Elco Realty Company, third party. It recites :

“Whereas, Second Parties have each rendered valuable services to First Party and will continue to so render services during the construction of a building by First Party, which said services include such things as the acquisition of land, securing of financing, construction of a building on an approximate cost basis, securing of leases, supervision, and other services, which the parties have agreed are reasonably worth, in the aggregate, the sum of One Hundred Seventy-five Thousand ($175,000.00) Dollars; and
“Whereas, First Party is desirous of providing for payment thereof to Second Parties and Second Parties are willing to accept payment in the manner agreed upon herein.” It is then agreed:
“1. First Party agrees to pay and Second Parties agree to accept in full payment of all services rendered to First Party and to be rendered until the completion of a building to be erected by First Party on Francis Place in Clayton, Missouri, the sum of One Hundred Seventy-five Thousand ($175,000.00) Dollars, without interest, payable in the manner hereinafter provided.
“2. All payments made hereunder shall be made to Third Party whom Second Parties hereby irrevocably designate and appoint as their agent for the purpose of receiving such payments, with full authority to do all things in connection therewith and hereby ratifying and confirming all acts so taken.
“3. Payments to be made by First Party shall be determined as follows:
“As soon after the close of the fiscal year of First Party as its annual audit has been completed, First and Second Parties, or their authorized representatives, will meet, and based upon the certified audit, will determine how much, if any, surplus cash First Party has available for distribution in accordance with this agreement. The parties agree that the term ‘surplus cash’ means cash over and above the cash needed for working capital and for such reserves as may be required under mortgage loan agreements, particularly with respect to prepaid or advance rental deposits. First Party agrees that, immediately upon the said determination of surplus cash, to pay the amount so determined to Third Party to apply upon the indebtedness herein.
“4. Second Parties, or any of them, may elect to purchase stock of First Party at the par value thereof and to pay for same by crediting First Party with the amount of the purchase price, thereby reducing the obligation provided for herein by such amount; provided, said election shall be made prior to the completion of the building to be erected by First Party, and provided, further that the amount of stock to be so subscribed and purchased shall not exceed Twenty-five Thousand ($25,000.00) Dollars in the aggregate.
“5. Second Parties agree to continue to devote their best efforts to the successful completion of said building.”

On the same date as the written agreement, a second agreement was made dividing the $175,000 fee $65,000 to Merle and Jung, $55,000 to Richard J. Zoernig and $55,000 to plaintiff, with priority of payment to Merle and Jung. In February, 1956, defendant issued 682 shares of $10 par value stock to plaintiff, which credited $6,820 to defendant (leaving $48,180, the amount of principal claimed by plaintiff for its services, for which judgment was given below). 682 shares were also issued to Richard Zoernig and Judge, and 341 shares each were issued to E. L. Zoernig, John Merle and R. W. Jung. Over defendant’s objection on the ground that it would violate the parol evidence rule, because the agreement of August 31, 1955 contemplated further services, and the purpose of the answer was to show the agreements fully performed, Pollack was permitted to testify that the $55,000 commission for plaintiff was based upon 3% of the permanent loan and a similar amount for the temporary loan. The issuance of defendant’s stock was done pursuant to a third agreement also of August 31, 1955, whereby the second parties and the third party to the first, basic agreement agreed to subscribe to 51% of defendant’s stock, to be paid for out of credits for services rendered and to be rendered by the parties thereto.

The completion date of construction of the medical building was specified to be May 1, 1956 (the building then was barely out of the ground). Zoernig had difficulty with leasing, and Merle-Jung, Inc. was confronted with strikes, material shortages, and cost problems with regard to who was to pay for partitions (walls) in the leases during construction. Plaintiff, on August 20, 1956, accomplished a necessary extension of the construction loan to December 5, 1956, and on August 21, 1956 was successful in having the commitment for permanent financing extended to June 1, 1957. Shortly before December 5, 1956, the First National Bank advised that it would not extend the construction loan unless the controlling stockholders would personally guarantee interest and pledge the controlling stock. At that time $729,000 had been drawn against the total commitment. The interest rate was 5½% per annum, and there was on hand, after payment of interest to December 5, 1956, $1,099.60 for that purpose, held by the Lawyers Title Company of Missouri, disbursing agent of construction money. It was agreed by witnesses for both parties that at that time defendant was broke. The unfinished building, its only asset, was threatened with foreclosure. There was no money on hand to complete the building; taxes for 1956 were unpaid; there was due Giraldin Brothers a loan commission; to Lawyers Title Company fees for disbursal and title service, and to Merle-Jung, Inc., money for extras in preparing doctors’ suites for occupancy.

The First National Bank had prepared a form of guaranty and pledge agreement of defendant’s stock, in accordance with its announced intention not to extend the construction loan without such guaranty and pledge. This form was brought to the Pollacks by John Merle on December 6, 1956, but the Pollacks made a decision not to join the agreement, but did agree to surrender plaintiff’s stock in defendant (by letter dated December 6, 1956, “This is to inform you that effective this date the undersigned relinquishes all their stock in the Medical West Corp. and will turn in the stock certificate to your office tomorrow morning.”), which stock was delivered to Judge the next morning. The stock was reissued and delivered to the bank with the guaranty and pledge agreement which was executed by Merle, Jung, Richard Zoernig, E. L. Zoernig and Judge on December 7, 1956. These guarantors were called upon to advance money for interest, totaling about $5,500, in January, February and March, 1957.

When Edward A. Pollack turned over plaintiff’s stock to Merle for delivery to Judge, he testified that he told them “that is as far as we’ll go and that’s all.” On Friday, December 7, 1956, Judge wrote to the Pollacks that “Under these circumstances, since you have decided not to participate in the guaranty, your stock-holdings and claims against the corporation stand surrendered to the participating stockholders.” On December 10, 1956, Harold Pollack called Merle and denied that they had surrendered their fee by surrendering plaintiff’s stock, and a letter of December 12, 1956 to Judge set forth the same denial. Contra to Pollack’s testimony, Merle testified that the Pollacks had (verbally) forfeited their fees. Judge testified that Edward Pollack told him in their telephone conversation that “I feel awfully bad about this when I think of all the hard work and time we put into this and now its all wasted. We can’t realize anything out of it and all that hard work is gone; it’s wasted,” and “they wouldn’t be able to recoup or recover anything for it.”

After December 6, 1956, the Pollacks took no further part in defendant’s affairs. Defendant never called upon plaintiff to procure additional financing or advise it as to leases. The other original participants continued to render services to defendant; in February and March, 1957, a few tenants moved into the building; through E. L. Zoernig & Co., defendant sold a $50,000 debenture issue, the proceeds of which were used to pay 1956 taxes, Giraldin Brothers its approximate $14,000 loan commission, Lawyers Title Company for title services, and Merle-Jung, Inc. for extras on the building. The building was completed in June, 1957, and the permanent financing was taken down at that time. Subsequently, in February, 1958, defendant’s controlling stockholders sold their stock to O. S. and Ann Rudman by separate contracts. Merle and Jung assigned their claim against defendant to Rudmans. The Zoernigs’ contract called for the Rudmans to cause defendant to pay Richard Zoernig his contract fee balance of $47,580 in six annual equal installments, and to advance money necessary therefor. After litigation that claim was settled for $20,000. Charles R. Judge filed suit for his attorney’s fee. O. S. Rudman testified that defendant operated at a loss and had no surplus.

At the trial, plaintiff’s contention was that its sole obligation was to obtain financing, which was satisfied upon getting loan commitments before the contract was made, on August 31, 1955, and that its services thereafter were gratuitous. Defendant’s contention was that the agreement sued upon required continuing services until the successful completion of its building; that plaintiff had not performed its obligation or tendered performance; and that abandonment and rescission occurred on December 6, 1956 (to which plaintiff disagreed).

The trial court’s findings included: (1) That there was no abandonment or rescission by plaintiff of the agreements of August 31, 1955; (2) that defendant failed to show a clear enforceable agreement supported by a consideration to constitute an abandonment or rescission of the original contracts; (3) that plaintiff did not violate the contract by failing to continue to render services; and (4) that “It is a reasonable inference from the evidence that the building was in fact completed as contracted for with Medical West Corporation by this group.”

Without doubt, the express written contract (upon which plaintiff sued) required it to continue to render services during the construction of the building (Paragraph 1 of the basic agreement, supra) and “to continue to devote their best efforts to the successful completion of said building.” (Paragraph 5 of the basic agreement, supra.) The record shows that plaintiff (through the Pollacks) did help in arranging the iftitial $930,000 construction loan (and the extension to December 6, 1956) and the permanent loan, and it is not disputed that the “Pollacks did participate actively in the affairs of defendant until December 6, 1956j that on that date they surrendered plaintiff’s stock and refused to participate in the guaranty and pledge agreement that First National Bank required as a condition to extend the then matured construction loan of defendant.” After December 6, 1956, the Pollacks (on behalf of Miran Investment Company) did not participate any further in defendant’s ■affairs. They were not asked. The leasing of the offices was handled by the Zoer-nigs, with some conferences with the Pollacks in regard to how much to charge doctors for installing partition walls.

It is true that proof of performance or tender of performance is necessary to the recovery upon an express contract, as here. Hellrung v. Hoechst, Mo., 384 S.W.2d 561, 564 [5]; Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643 [7]; Kreitz v. Egelhoff, 231 Mo. 694, 132 S.W. 1124, 1127. The issue is, however, just what performance plaintiff was to accomplish under the written contract. It seems that defendant’s position is that there was a breach of the contract by plaintiff in that it failed to join in the written guaranty of interest to the bank, which would prevent recovery under defendant’s above-cited cases. There is nothing in the August 31, 1955 agreement for services which would require plaintiff to assume a personal obligation in the securing of financing for defendant. Harold E. Pollack testified that in the function of securing financing it is not usual that personal obligation be furnished. The fact that the others in the venture were willing (as stockholders) personally to guarantee the interest payments to the bank (in addition to assigning their stock) is not binding upon plaintiff — it was not obligated to do so. By requesting such guaranty, the others imposed a condition upon plaintiff’s obligation to furnish services in securing financing which was not present in the original agreement. Such a condition cannot be implied, as defendant seems to suggest in its brief statement, “While it may be true, as the trial court pointed out, that the contract imposed no direct obligation on plaintiff or the Pollacks to ‘undertake any personal financial burden,’ it did impose on the second parties as a group, or on plaintiff specifically, the obligation to secure financing and Harold Pollack testified that the stockholders constituted the only source of financing.” Under the circumstances here appearing, there was no breach of performance by plaintiff of any part of the August 31, 1955 agreement. The record shows that plaintiff did substantially perform its services in securing financing, and extensions of loan commitments up to at least December 6, 1956. It then turned over its stock which had been issued to it as a credit upon services rendered. Defendant’s contention of failure of performance is denied.

It was for the trial court to resolve the conflicting testimony of the Pollacks and Merle as to whether there occurred a verbal rescission and abandonment of the contract on December 6, 1956. Deference is to be accorded his finding that the Pollacks, acting for plaintiff, did not surrender its claim against defendant as well as the stock surrender. There is merit in plaintiff’s contention that the contended surrender of the claim is without consideration. Thumm v. Lohr, Mo.App., 306 S.W.2d 604, 609 [8 — 13], and cases cited, holding that “the surrender of a valuable right under a contract is ineffectual unless supported by a valuable consideration.” Plaintiff here possessed a valuable right to be compensated under the contract for services rendered and to be rendered until the medical building was “successfully completed.” That contract was not wholly executory, so that a mutual agreement of the parties would be sufficient to set it aside without consideration. Thumm v. Lohr, supra. There is no consideration for such surrender of claim to be found in plaintiff being relieved of the obligation to perform (services in securing financing) under the contract as contended by defendant. As stated, on December 6, 1956, a condition of assuming personal obligation was imposed upon plaintiff, which was not present in the initial agreement. Nor do the subsequent events and acts of the Pollacks establish an abandonment under this record. “[Abandonment must be made to appear affirmatively by the party asserting it, and that proof of abandonment must be made by clear, unequivocal and decisive evidence.” Sanitary Systems, Inc. v. American Surety Co. of New York (CCA8), 331 F.2d 438, 440. “It is a fact made up of an intention to abandon, and the external act by which the intention is carried into effect.” Pocoke v. Peterson, 256 Mo. 501, 165 S.W. 1017, 1021. See also Schwart2 v. Shelby Construction Co., Mo., 338 S.W.2d 781, 788. Defendant, through its agents, repudiated the contract, which terminated the duty of plaintiff further to perform. Landau v. St. Louis Public Service Company, 364 Mo. 1134, 273 S.W.2d 255, 48 A.L.R.2d 1200.

Defendant says that plaintiff may not recover because it failed to tender performance (in securing financing) on December 6, 1956 (when it was critically needed). It agrees “that tender of performance after December 6, 1956, would have served no useful purpose, not for the reason assigned by the court [that defendant took the unequivocal position that the Pollacks and Miran Investment Company had forfeited all rights arising out of the contracts], but because the time for performance or tender was on December 6, 1956, not after that date.” (Bracketed phrase added.) The difficulty with that contention is that plaintiff was not given the opportunity to perform anything in accordance with the original writing with respect to securing financing. Plaintiff did not have to tender a performance of something it had not bound itself to do, i. e., personally to guarantee the payment of interest, on December 6, 1956. Nothing was presented to the Pollacks but the form of guaranty prepared by the bank; no other demand for financing was made; the original agreement was prepared to be signed by the Pollacks individually, not plaintiff. The Pollacks did suggest depositing of cash, but other stockholders could not raise their share. On December 7, 1956, Charles R. Judge wrote to the Pollacks that by surrendering plaintiff’s stock (necessary to satisfy the bank’s subsequent demand after it finally rejected the offer to deposit cash) they also surrendered their right to the fee. By telephone, Harold E. Pollack denied to Merle that they had surrendered their fee. The same denial was contained in a letter to Judge, dated December 12, 1956. Thereafter, the Pollacks did not know what was going on. They were asked to do nothing, nor were they informed of the subsequent need for advances (supplied by the guarantors and a debenture issue through E. L. Zoernig & Co.) to complete the building and pay debts. “A tender is waived where the tenderee makes any declaration which amounts to a repudiation of the contract, or takes any position which would render a tender, so long as the position taken by him is maintained, a vain and ideal (idle) ceremony, * * 17A C.J.S. Contracts § 481, p. 680. See also: 17 Am.Jur.2d Contracts, § 358, p. 797, et seq.; Cable v. Wilkins, Mo.App., 352 S.W. 2d 50, 53; Stein v. Bruce, Mo.App., 366 S.W.2d 732, 734 [1, 2].

Defendant says that even if an obligation (to pay defendant’s fee) had arisen, no money would have become due and payable because the basic agreement provided for payment only out of “surplus cash,” and the evidence shows that defendant at no time has been possessed of such surplus cash. Plaintiff’s position is that the provision for surplus cash payments at best related to the method of payment of what was due the parties of the second part; that by paying Merle-Jung, Inc., and settling with Zoemig (for $20,000) made the “surplus cash” provision inoperative, and defendant waived it as a requirement of method of payment (note that Paragraph 1 of the agreement provides that the fee be “payable in the manner hereinafter provided”) ; that the recitals are that first party is desirous of providing for payment to second parties who are willing to accept payment in the manner agreed upon herein; there is no provision that the fee be paid only out of surplus cash; credit would be given on the fee if the option to purchase defendant’s stock were exercised. The provision is not a condition precedent, unfavored in the law, which would work a forfeiture. 17 Am.Jur.2d Contracts, § 321, pp. 751, 752, and § 339, pp. 776, 777. And see C. J. Hogan, Inc. v. Atlantic Corporation, Mass., 332 Mass. 322, 124 N.E.2d 905, 909, “ * * * It is generally held that an existing obligation does not lose its absolute character and become a conditional one just because a subsequent agreement of the parties postpones payment until the happening of some specified contingency wholly, or even partly,-within the obligor's *control1 .(Italics added.) Defendant’s cited caselof Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233, being one holding that a note provision that it was payable out of a trust fund of allocated income excluded negotiability, is not applicable. The trial court did not err in awarding a money judgment.

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: STOCKARD, Commissioner.

text:
    Fred M. ADLER, Appellant, v. LACLEDE GAS COMPANY, a Corporation, Respondent.
    No. 51854.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 8, 1967.

      Schwartz, Schwartz & Gilden, St. Louis, for appellant.
    Charles F. Hamilton, St. Louis, for defendant-respondent, Doris J. Banta, St. Louis, on the brief.
   STOCKARD, Commissioner.

At the close of all the evidence the trial court entered judgment for the defendant on a directed verdict in plaintiff’s suit for damages for personal injuries in the amount of $35,000. Plaintiff has appealed.

Plaintiff was injured on Wednesday evening, September 11, 1963, by a fall into an excavation in the form of ditch along the east side of McKelvey Road in St. Louis County, which had been dug by defendant in which to lay a gas main. The excavation was in the public right of way, but about eight or nine feet from the macadam paving of the street. Plaintiff intended to go to the Arlington Methodist Church, located on McKelvey Road, to obtain a flower “insert” or vase to deliver to a florist. He approached the area in his automobile and stopped on the west side of McKelvey Road. At the time the headlights of his automobile were turned on, and he saw a four-foot mound of dirt on the east side of the road blocking the driveway into the church. Plaintiff said he saw no lanterns, signals or warning flashes of any kind, but defendant’s foreman testified that there were two lanterns at the driveway, and that there were lanterns and flags spaced alternately along the mound of dirt. Plaintiff then drove southward, made a complete turn, and drove back northward on the east side of McKelvey Road and stopped again at the driveway to examine the situation. By this time, according to plaintiff, it was dark, but he could see “the dirt was still four feet high and that it still blocked the driveway.” Plaintiff then drove northward about 100 to 150 feet along the excavation, and pulled his automobile to the right as far as possible and stopped. He left the headlights of his automobile turned on. While sitting in his automobile plaintiff could see the pile of dirt which he said was only one foot high at that place, and to the east of the dirt he could see the pipe resting on what he called a “cradle.” Plaintiff got out of the automobile and walked around the rear of it, and from there he had no difficulty in seeing the pile of dirt, and he could see the pipe. Although no one told him there was an excavation and he did not see it, plaintiff realized that there was one, but he “thought the ditch was on the east side of the pipe; that the pipe made a barrier to keep you from going into the ditch.” Plaintiff intended to cross the dirt pile, follow the pipeline to the driveway, then cross the pipe and the ditch and go to the church. He stepped upon the dirt, and when he did so he had no difficulty in seeing the pile of dirt and the pipe. He did not, to his knowledge, look to see where his next step would' go, but “took another step and stepped right into the hole.” He did not slip or stumble on the pile of dirt.

The construction foreman of defendant testified that the excavation was fourteen inches in width and two and one-half to three feet in depth. The pile of dirt was to the west and parallel to the ditch with about six inches between the edge of the ditch and the east side of the pile of dirt. The gas pipe was resting on blocks of wood eight inches in height, and was about six inches east of the east side of the ditch. On September 11, 1963, defendant’s crew had run into some rock, and at the close of the day the ditch was left open for a total of about 400 feet; 300 feet to the north of the church driveway, and 100 feet to the south of the driveway. The ditch had been “backfilled” north of that part which had been left open, and beyond the 100 feet south of the driveway the ditch presumably had not been dug.

The negligence charged against defendant in plaintiff’s petition was that it “permitted an excavation adjacent to the street to remain in a state whereby it did not have sufficient lighting, or any lighting, to indicate that said excavation was there,” that defendant had no “visible signs to indicate that said excavation was present,” and defendant “did not make said excavation safe nor did it warn people walking near said excavation of the dangerous condition therein.”

Plaintiff contends that the evidence established a submissible case of negligence, and that the trial court erred in directing a verdict for defendant. In determining this issue we shall consider the evidence which is favorable to plaintiff as true and give him the benefit of every inference of fact which can reasonably be drawn therefrom. McVicar v. W. R. Arthur & Company, Inc., Mo., 312 S.W.2d 805, 65 A.L.R.2d 785. But, in doing this, we can neither supply evidence nor ignore evidence binding on plaintiff, nor can we use the above principle as a basis for unreasonable, speculative or forced inferences. Atcheson v. Braniff International Airways, Mo., 327 S.W.2d 112, 117; Hunter v. Karchmer Mo.App., 285 S.W.2d 918.

Defendant asserts that plaintiff did not make a submissible case of negligence against it because by his testimony he admitted that he saw the pile of dirt and the pipe, and that he knew there was an excavation, and after citing Howard v. Johnoff Restaurant Company, Mo., 312 S.W.2d 55, and Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, defendant argues that it had no duty to warn plaintiff when the warning would impart no more information to plaintiff than that already possessed by him. The most that a warning, by lights or signs, could have told plaintiff that he did not already know was that the excavation was between the pile of dirt and the pipe rather than to the east of the pipe where he said he thought it was. We shall assume for the purpose of this opinion that a submissible case of negligence on the part of defendant was authorized by the evidence. Even so, we reach the conclusion that the trial court correctly directed a verdict for defendant on the basis that he was contributorily negligent as a matter of law.

Whether the dangerous condition be considered to consist of the excavation alone or of the combination of the pile of dirt, the excavation, and the pipe, plaintiff had actual knowledge of the existence and presence of the condition. His only lack of knowledge pertained to the exact location of the excavation in relation to the pile of dirt and the pipe, and that resulted from what might by some be considered to be an unreasonable assumption on his part that the pipe was between the pile of dirt and the excavation. The pile of dirt which was located to the west of the excavation and the pipe which was located to its east actually amounted to a barrier on each side of the excavation. Plaintiff was not in a hurry and no other person or thing distracted his attention. See Butler v. City of University City, Mo.App., 167 S.W. 2d 442. He was not being pressed by others behind him. See Brandt v. Thompson, Mo., 252 S.W.2d 339. By going only a short distance north or south plaintiff could have crossed from the paved area of the street to the area beyond the public way without crossing the excavation. He stopped his automobile adjacent and parallel to the pile of dirt, and left the headlights of his automobile turned on. Then instead of going to the front of the automobile and crossing with the benefit of the light from his automobile, he went to the back of his automobile. But even so, he testified that in those conditions he could see the pile of dirt and the pipe. Knowing that an excavation was present, and that the dirt upon which he stepped came from it, by his own admission, plaintiff took another step without looking, and as a result he stepped into the excavation. The rule applicable to the situation in this case, as stated in Welch v. McGowan, 262 Mo. 709, 172 S.W. 18, 20, is that “when one traveling along a public street sees, or otherwise receives actual notice, that such street is out of repair or torn up, he must look for obstructions and other dangers and avoid them if he can do so by exercising ordinary care.” Stated another way we find the rule set out in Waldmann v. Skrainka Constr. Co., 289 Mo. 622, 233 S.W. 242, as follows: “It is the settled law in this state that, while a traveler on a public street or sidewalk may ordinarily presume that the way is clear and In good condition, still, if the traveler knows that the sidewalk or street being used by him is torn up or obstructed by public work being done therein, he cannot go forward, relying on the presumption that the way is clear, but must exercise his faculties to see and discover the dangers that he may encounter from such obstructing public work, and if he fails to do so, and is injured thereby, he cannot recover, on the ground that he himself is guilty of contributory negligence,, although the public authorities or the contractor doing the work may also have been guilty of negligence.” See also O’Neill v. City of St. Louis, 292 Mo. 656, 239 S.W. 94; Clark v. Missouri Natural Gas Co., Mo., 251 S.W.2d 27; Lamberton v. Fish, Mo., 148 S.W.2d 544; Eisele v. Kansas City, Mo.App., 237 S.W. 873. For related cases involving obstructions on or near a sidewalk, but in which applicable general principles are announced, see Sloan v. American Press, 327 Mo. 470, 37 S.W.2d 884, and Drury v. City of St. Louis, Mo., 367 S.W.2d 494. This is not the situation where plaintiff momentarily forgot about a known dangerous condition, 74 A.L.R.2d 950, annotating Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 74 A.L.R.2d 938, or where the condition was not so obviously dangerous that in the exercise of reasonable care persons regularly crossed it. Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541. In this case plaintiff had actual knowledge that an excavation was present at the precise place he was attempting to cross, and with this knowledge and with no pressure or necessity to proceed forward at that particular place he proceeded over the barrier consisting of the pile of dirt and stepped into the excavation without looking to determine where he was stepping. Al-thought it was sufficiently dark to require the use of the lights on his automobile when driving, he could see the pile of dirt and also the pipe without the aid of artificial light. It necessarily follows that by looking where he was stepping he could have seen the excavation. We necessarily conclude that plaintiff was contributorily negligent as a matter of law.

The cases cited and relied on by plaintiff are all distinguishable. In Bean v. City of Moberly, 350 Mo. 975, 169 S.W.2d 393, there were no barricades, lights or piles of dirt, and although plaintiff knew of repair work in the area, he did not know or have reason to know that the excavation extended to the driveway where he attempted to enter an automobile and fell in the ditch. It was held that under the facts and circumstances of that case “it cannot be said that [plaintiff] had such actual knowledge as the rule preventing recovery contemplates, * * In Grimes v. Standard Oil Co., Mo.App., 370 S.W.2d 627; Sanders v. Carl Berry Oil Company, Mo., 359 S.W.2d 769; Fields v. Kansas City, Mo.App., 377 S.W.2d 528; and Burch v. Moore’s Super Market, Inc., Mo., 397 S.W.2d 590, the plaintiff did not have knowledge of the presence of the dangerous condition. In Brooks v. City of Ste. Genevieve, Mo.App., 164 S.W.2d 164, contributory negligence as a matter of law was not an issue. In that case whether plaintiff was contributor ily negligent was submitted to the jury, and the verdict for defendant was affirmed. In Butler v. City of University City, Mo. App., 167 S.W.2d 442, the defective condition was not so obvious or dangerous that plaintiff was charged with the appreciation of the unreasonable risk involved. Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576, is not factually similar. There the plaintiff was injured when she attempted to cross a ditch on a board which broke with her weight.

Under the facts and circumstances we have outlined, we are constrained to conclude that the trial court correctly directed a verdict for defendant.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., dissent.

PER CURIAM:

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

All of the Judges concur.


text:
    Clyde B. COFFMAN, Sr., Respondent, v. Zona COFFMAN, Alva Gilliam and Judith Gilliam, his wife, Alva Lynn Gilliam, a minor, Gary Gilliam, a minor, and Stephen Gilliam, a minor, and all members of the class composed of the heirs at law of Alva Gilliam, and Alva Gilliam as guardian ad litem for his minor children, Alva Lynn Gilliam, Gary Gilliam and Stephen Gilliam, and all of the unborn children of Alva Gilliam, Appellants.
    No. 51837.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 8, 1967.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
    Schwartz, Schwartz & Gilden, St. Louis, for appellants.
   PRITCHARD, Commissioner.

Plaintiff was successful in his suit to have deeds to a lot in Potosí, Missouri, set aside and for declarations that he is the owner thereof and for an equitable lien for alleged good faith improvements on other lots in Potosí.

Count I of plaintiff’s first amended petition, upon which he elected to submit his case to the court, was filed during the course of the hearing below and after it was learned that title to Lots 3 and 4, Block 3, of Nicholson Third Subdivision, Potosí, Missouri, was held by deed dated November 21, 1960, by Zona Coffman and Alva Gilliam (her son) as life tenants only with a remainder to the heirs of said Alva Gilliam. Alva’s children were brought into the suit and a class representative was appointed to represent unborn heirs, and the trial proceeded. By this count plaintiff claimed that he fully performed an oral contract by which he agreed with his then wife, Zona, that title to certain real estate individually owned by him (Lot 80 of the Old Town of Potosi) would be placed in their joint names. Real estate which plaintiff believed to be owned by Zona (said Lots 3 and 4) would also be placed in their joint names. The two would then contribute equally the funds to build a new home on Lots 3 and 4, and for furniture therefor. It is alleged that Zona did not perform the agreement at all, except to cause to be conveyed to herself and plaintiff Lots 3 and 4 which she had, unknown to him, previously caused to be conveyed to herself and her son as life tenants, with remainder to her son’s heirs, which facts were alleged to have been falsely and fraudulently represented to plaintiff. The answers were general denials.

The relief granted to plaintiff was that his title to Lot 80 was restored to him free of Zona’s interest; the title to all pur-’ chased furniture was decreed to be in him; and an equitable lien was declared for plaintiff upon Lots 3 and 4 (for his improvements, materials and labor furnished by him in the construction of the new home) for $14,500, subject to a note and deed of trust for $2,116.20 to the Ozarks Federal Savings and Loan Association and the value of the remainder interest, found by the court to be $600, in the heirs of Alva Gilliam, to be held by the guardian ad litem until all such heirs are ascertained, then divided among them. By amendment of the judgment, the property was ordered sold by the sheriff at public sale.

Plaintiff and Zona had stormy lives together as husband and wife. They were first married in 1947, then divorced in 1952 at which time Zona conveyed Lot 80, which had an older house on it, to plaintiff. Both had been previously married, Zona to Gilliam of which marriage her son, Alva, was born. Zona then married and divorced men by the name of Farrell and Roberts, and in 1959 she and plaintiff remarried. They thereafter had six or seven separations, and Zona filed three divorce suits against plaintiff which were dismissed, then a fourth one which was pending at the time of this trial.

According to plaintiff, in August or September, 1962, after one of their separations, he and Zona had a conversation relative to changing their properties to joint title. Zona had previously acquired title to Lots 3 and 4, Block 3, Nicholson Subdivision. (Her deed, November 21, 1960, Defendant’s Exhibit 4, was from John J. Boyer and June Boyer, his wife, and granted the property to “Zona Coffman and Alva Gilliam, as life tenants only with a remainder to the heirs of said Alva Gilliam.”) Although plaintiff thought that Zona, while they were separated, withdrew $600 of his funds to pay for the lots, the contemporaneous transactions show that Zona borrowed $700, with her $3,000 time certificate of deposit as collateral, and issued her own check, $700, marked “For Lots,” to the Boyers. Zona admitted she took the $600, but testified that she used it to live on during one of the separations.

On September 8, 1962, plaintiff and Zo-na by deed revested title to his Lot 80 in themselves as husband and wife. On October 12, 1962, a deed for Lots 3 and 4 was executed by plaintiff and Zona, Alva Gilliam and his wife Judith, to Zona Coff-man and Clyde B. Coffman, and was recorded December 31, 1962. Plaintiff testified that this latter deed was made when about half of the outside frame of the house was completed, which was a few days before it was recorded, December 31, 1962.

Plaintiff and Zona lived for several months in her house trailer, situated either on Lots 3 and 4 or nearby on some other lots she owned. Prior to the start of construction of the house, and while they were separated, plaintiff testified that a conversation took place (the fact of which was denied by Zona) with respect to Lot 80, “She asked me to put her name on it. Kept on and I told her I would. I said, 'If you think we’ll get along.’ And she said, ‘Well, I know we will.’ Said, ‘That’s the reason we haven’t got along,’ said, ‘you wouldn’t put nothin in my name, you wouldn’t trust me.’ Said, ‘Trust me like that, put it in my name and we’ll get along.’ Said, ‘We’ll have to, we’ll get along.’ ” Later, in October, 1962, about two months after they went back together, plaintiff started the house using his money after Zo-na told him she had her money on interest and didn’t want to lose it. Each was to put the other’s name on the titles to their property, and each was to pay half of the cost of construction of the house. Plaintiff expended about $9,500 for materials and bought all of the furniture, new and used, for the new house. He borrowed a portion of the money, both for materials and furniture, and paid it all back except the $2,116.20 still unpaid to Ozarks Federal Savings and Loan Association. Zona, as she admitted, put “not one red penny” of her separate funds into the house, and denied that she agreed so to do. Plaintiff’s testimony, although varied in wording, was that if he would build the house on her two lots she would put his name on it with her, that they were to go “partners,” each to pay half on the costs. “She wanted me to build a house and said, she said I will put your name on the deed. She said my son’s name is on there and I’ll have it made over in mine and your name.” At the time the deed was made, Zona said she didn’t know that Judy’s name (Alva’s wife) was on it, “I don’t know why she wants to stick her name on there, ‘Alva,’ that’s her son, ‘was the only one supposed to be on there.’ Said she didn’t know that Judy’s name was even on there.” Plaintiff did not know about Alva’s “heirs” being on the deed until the matter came up in this suit, and Ozarks Federal Savings and Loan Association did not say anything about it when they had the abstract of title made up. Strangely, Zona also testified that her first knowledge that Alva’s heirs were on her deed was when the trial was stopped earlier (for that reason). She did not know when she made the deed of her lots to plaintiff and herself that the title to that property was in such shape that her grandchildren would get it on the death of herself and her son Alva. She thought she was making good and perfect title in herself and plaintiff — she thought it was right to have plaintiff’s name on the deed after he started the house.

In a conversation with her niece, Neva Hibbert, had during the construction of the house, Zona told her with respect to her intentions as to what she would do with the new house, “Well, she said that after he built it she’d kick him out, she did say that. And then she says, ‘No, I wouldn’t do that.’ ”

, While he was building the house, plaintiff tried to get Zona to put up some of her money and she said she wouldn’t do it. “She didn’t want no interest in it. She wasn’t puttin’ a dollar of her money in it. She said, ‘You started it, you go ahead and finish it.’ ” At one place, plaintiff testified that after the outside walls were on the house they agreed that they would both work to finish it on the inside; that there was no certain amount to be paid by either party; and that they were supposed to go together and pay for it. Zona did, according to her testimony and that of her witnesses, Jones and Gibson, perform work in cleaning up after carpenters, shoveling plaster, polishing and cleaning tile, setting out shrubbery, flowers and trees and in mowing the lawn, all after she returned from her work at the Brown Shoe Company.

In this appeal, Zona understandably but erroneously attacks the judgment on the ground that the evidence does not establish as grounds for relief either the theories of resulting or constructive trusts in Zona for the benefit of plaintiff. Plaintiff referred to those theories in his first amended petition, and the trial court’s judgment entry does not precisely set out the theory upon which relief was afforded plaintiff. Zona is correct that these theories cannot apply. The facts giving rise to a right to relief arose after the deed (to Lot 80) was executed — i. e., Zona failed to perform her part of the agreement subsequently to when it was made. “A resulting trust ‘must result or arise from facts which occur “at the time of or anterior to” the execution of the conveyance by which the title passes and “cannot be created by subsequent occurrences.” ’ ” Welborn v. Rigdon, Mo., 231 S.W.2d 127, 133 [9-11], and cases cited; Hovey v. Hovey, Mo., 379 S.W.2d 621, 624 [1-3]; Jacobs v. Jacobs, et al., Mo., 272 S.W.2d 185, 189 [11,12], (“[T]he trust must arise from the facts, existing at the time title to the land was acquired; and cannot be created subsequently by the expenditure of the claimant’s money in improving the property.”) ; Davis v. Roberts, et al., 365 Mo. 1195, 295 S.W.2d 152, 156 [10,11]. As to the theory of constructive trust, there must be evidence of fraud, which is never presumed, and which cannot be proved by mere inference. Thomason v. Beery, 361 Mo. 424, 235 S.W.2d 308, 312 [4]; and see Basman v. Frank, Mo., 250 S.W.2d 989, 994 [7-9], where it was held that fraud may be established by circumstantial evidence. Here, there is no evidence from which it might be legitimately inferred that at the time of executing the deed to Lot 80 Zona had a dishonest purpose of later not performing her part of the agreement. There was not a misrepresentation of a present or pre-existing fact, a promise to do a certain thing, with a present intention not to do it. See Yerington v. Riss, Mo., 374 S.W.2d 52, 58 [5], for a discussion, cases and authority on this aspect of fraud. Plaintiff’s statement in his brief that “In our opinion, the Court seems to base this holding on the ground of rescission of the contract on the basis of fraud” is of no aid here.

Under the broad powers of a court of equity, and under the prayer for general relief by plaintiff, Prasse v. Prasse, Mo., 77 S.W.2d 1001, 1006 [7], these facts show combined theories by which we affirm the relief granted plaintiff. The first is that he entered the contract in good faith and performed completely his part thereof, and parted with his consideration in reliance upon Zona’s promises to perform. He became a good faith improver of what he thought was his property in fee simple with Zona. (All he had was a joint life estate with her, after which the property, Lots 3 and 4, was to eventually, upon Alva’s death, go to her grandchildren.) The trial court, having seen and heard plaintiff and Zona, has determined that his version of the transactions is true (and we defer to that determination), that there was an agreement as testified to by plaintiff (but denied by Zona). In reliance upon Zona’s promise to advance half the funds and to create an estate by the entirety in fee between him and Zona of her property, plaintiff revested title to his Lot 80 with her; he used his funds and labor in erecting the new home on the lots owned by Zona; and albeit later than the initial agreement, he purchased all of the furniture upon her promise to pay half of that. Since the interests of Zona’s minor grandchildren, and any grandchildren who were unborn, were involved in the title to Lots 3 and 4, plaintiff had no adequate remedy at law. He was therefore entitled to seek an equitable lien for the value of his improvements on the minor’s remainder interest based upon the fact that Zona and her grandchildren were unjustly enriched, pursuant to the contract for such improvements between Zona and plaintiff.

Of course, in this state a wife is competent to contract with her husband. Rice, Stix & Co. v. Sally, 176 Mo. 107, 75 S.W. 398, 404; Hall v. Greenwell, 231 Mo. App. 1093, 85 S.W.2d 150, 155 [3], and cases cited. Although, as Zona points out, a rebuttable presumption arises that a husband intends a gift to his wife where he pays the purchase price of property which is conveyed to them as tenants by the entirety, Hovey v. Hovey, supra, loc. cit. 379 S.W. 2d 625 [4, 5], the evidence is clearly convincing that plaintiff conveyed his property, Lot 80, on the condition that Zona would perform her promise to share in the construction cost of the new house and the furniture, and would cause good title to her Lots 3 and 4 to be conveyed to the both of them in fee simple as tenants by the entirety. Thus, the conveyance was made upon a condition which was not performed. The general rule of the presumption as to the improvements being for the wife’s benefit, 41 C.J.S. Husband and Wife § 299, p. 784, is again rebutted by the evidence of the contract. In that same section it is said, “Where the husband may contract with his wife, improvements made by him may, by agreement between them, create a charge or lien in his favor * * and “The husband should be reimbursed where the improvements were made because of a mistake in a deed naming him as well as his wife as grantee, or in the honest belief that he was improving his own land.” Here, plaintiff had no knowledge that Zona (with her son) had only a life estate in the property, and Zona stated she also had no knowledge thereof. A mutual mistake as to the state of that title existed, warranting the avoidance of the agreement and restoration of the parties to their status quo in equity. 30 C.J.S. Equity § 47, p. 863 et seq.

In the situation here presented, the minor children of Alva (themselves and as representatives of a class unborn) not being parties to the contract between Zona and plaintiff could not properly be sued by him at law to recover damages for Zona’s breach of contract (in which was also involved the mutual mistake of fact as to title to Lots 3 and 4). Plaintiff had no remedy at law against such minors and unborn children. The principle of Radford v. Radford, Mo., 388 S.W.2d 33, where the sole ground for relief was failure of consideration of an agreement by a son to support his father, the grantor (who was put to his remedy at law, an action for damages for breach of contract), does not apply. The execution of the deed here to Lot 80 was in addition to and a part and parcel of the consideration furnished by plaintiff in the construction of the house, the title of the lots thereof being mutually mistaken to be good by the parties. Plaintiff was a good faith improver of those lots, and he is entitled to his equitable lien even as against the minor defendants. See 42 C.J.S. Improvements §§ 8, 12b, pp. 444, 450. See also, for the proposition that as between a husband and a wife, the husband is entitled (under a prayer for general relief, as here) to an equitable lien of one half of funds drawn from a joint bank account between them and placed upon the separate property of his wife as improvements thereon, Prasse v. Prasse, Mo., 77 S.W.2d 1001, 1006 [7].

Plaintiff, having shown himself entitled to equitable relief in the avoidance of his agreement, by reason of being a good faith improver, mistake as to title, and failure on the part of Zona, his wife, to perform her part of the agreement, is not barred by the principle announced in Curd v. Brown, 148 Mo. 82, 49 S.W. 990, and Holman v. Holman, Mo., 183 S.W. 623, that a husband cannot recover compensation for improvements made during the coverture upon the wife’s land. This case also does not rest alone upon a failure to pay money, and Hahn v. Hahn, Mo., 297 S.W.2d 559, denying equitable relief upon that ground, is inapplicable. It is true that “The doctrine of ‘equitable lien’ applies only in cases where the law fails to give relief and justice would suffer without the equitable remedy, but the doctrine has prescribed boundaries and generally there must be an express agreement, or conduct or dealings of the parties from which an intention may be implied, that some specific property shall be appropriated as security for a debt or obligation before equity will consider that a lien should be declared on the property.” Wilkinson v. Tarwater, Mo., 393 S.W.2d 538, 542 [1, 2], and cases cited. But that principle is not exclusionary of our situation where plaintiff is a good faith improver of property which he, with his wife, mistakenly believes is owned by him and his wife as tenants by the entirety. Prasse v. Prasse, supra, 53 C.J.S. Liens § 4, p. 845. Nor does the general rule here apply that a life tenant cannot charge the corpus of an estate with improvements, Schowe v. Kallmeyer, 323 Mo. 899, 20 S.W.2d 26. Plaintiff believed himself (under the mutual mistake of fact) to be a fee simple owner with Zona, not merely a life tenant.

Plaintiff here is not seeking to bind the minor defendants to his contract, but only to prevent their unjust enrichment as to the value of his improvements. § 475.135, RSMo 1959, V.A.M.S., does not prevent the jurisdiction over them to adjudicate their remainder rights as incidental to the contractual rights and equitable relief as between plaintiff and Zona.

With respect to the furniture, the evidence shows that plaintiff has it in his possession and that he furnished all of the money for its purchase. As a part of this equity suit, the trial court did not err in decreeing title to the furniture to be in plaintiff.

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.

FINCH, Acting P. J., and DONNELLY and STORCKMAN, JJ., concur.

EAGER, P. J., not sitting.


author: HENLEY, Judge. SEILER, Judge

text:
    STATE of Missouri, Respondent, v. Robert Jerome McLARTY, Appellant.
    No. 52180.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Stanley P. Clay, Special Ass’t. Atty. Gen., Joplin, for respondent.

      Philip A. Maxeiner, Michael N. New-mark, and Lawrence Alan Waldman, St. Louis, for appellant.
   HENLEY, Judge.

Defendant and one Kenny Wade Roberts were charged by information with tampering with a motor vehicle, a felony. Section 560.175, RSMo 1959, V.A.M.S. McLarty was tried separately from his co-defendant ; a jury found him guilty and assessed his punishment at imprisonment for one year. He was sentenced in accordance with the verdict to serve his imprisonment in the Workhouse of the City of St. Louis and given credit on the sentence for five months and ten days spent in jail prior to trial. He appeals from the judgment. He was represented by able counsel at the trial and in this court. The case comes to the author on reassignment.

Counsel for defendant brief two points: (1) that the state failed to make a submis-sible case; and, (2) that the court erred in the admission of evidence secured as a result of an unlawful arrest.

The motor vehicle involved, property of Abe Jones, was a 1962 model blue Chevrolet equipped with a portable type air conditioner hung under and attached to the dash by two metal hangers; two rubber hose ran from the air conditioner through the floorboard. Jones testified that en route home from his employment on October 4, 1965, he stopped at a gasoline service station at about 6:00 P.M., to use the toilet; that as he left the toilet he saw a strange woman drive his automobile out of the service station driveway, without his permission; that he and others called to the driver to stop, to no avail; that he called the police and reported the theft; that the automobile bore license plate number SN3-735. He further testified that he next saw his automobile after it was recovered by the police; that the left side of the air conditioner had been loosened and dropped down from the dash, the hose cut and pulled through the floor.

Patrolman Paul Sellers, a member of the St. Louis Metropolitan Police Department, testified that on the night of October 6, 1965, he and Patrolman Gary Barna were cruising their assigned area in a police car; that at about 11:05 P.M., they observed a blue 1962 Chevrolet, with its domelight on and two men in it, parked alone on an unlighted parking lot behind an apartment building at 1208 Hamilton in the City of St. Louis; that they got out of their cruiser and walked up to the Chevrolet, Sellers going to the driver’s side and Barna to the right side; that they found defendant on the passenger side, bent over, holding a flashlight directed on the air conditioner and Roberts on the driver’s side stretched over to his right “ * * * doing something with a screw on the air conditioner * * that the left side of the air conditioner was disconnected from the dash, resting on the floorboard with the hose cut loose.

Patrolman Barna’s testimony was essentially the same as that of Sellers. He further testified that he knocked on the car window and Roberts opened the left door; that he asked Roberts what he was doing and he replied that he was repairing the air conditioner, that it “ * * * had slipped down off the brace and he was trying to put it back * * *that he walked to the rear of the Chevrolet, got its license number and asked Sellers to use the cruiser’s police radio to check that number for possible theft. At this point no arrest had been made.

Patrolman Sellers further testified that he checked license number SN3-735 by radio; then he and Barna walked back to the Chevrolet and immediately arrested defendant and Roberts for tampering with a stolen automobile. He further testified that when they got back to the Chevrolet to make the arrest “ * * * they [defendant and Roberts] were both trying too [sic] get the air conditioner outside the automobile * * *that defendant “ * * * had his head down beneath the dashboard, close to the air conditioner, which was in the middle of the dashboard.”

Photographs of the inside of the Chevrolet taken at Police Headquarters in the presence of Patrolman Barna were admitted in evidence over objection of defendant. Both officers testified that these photographs show the interior of the automobile and the position of the air conditioner exactly as they saw it from outside immediately before and at the time of the arrest.

Defendant did not testify. His only witness was Roberts, who admitted that he had entered a plea of guilty to the charge of tampering with Jones’ automobile, and had been convicted of three prior felonies. Roberts testified that on the night of October 6, he borrowed the automobile from Gwendolyn, * * * a young lady that I was very familiar with * * * a young lady that lived — well, she lived next door to me; the two of us had been pretty close for some time * * that he was “ * * * not positive of her last name * * that he thought she was now in the penitentiary; that he lived in a four-family flat at 4229 Delmar and his mother also lived there; that defendant worked for his mother and “ * * * at times he stayed there also, you know, when he was working * * *,” tut defendant’s “ * * permanent address at the time * * * ” was on Clara; that he and defendant walked from the flat to a nearby corner tavern and on their return his girl friend was there; that he “ * * * borrowed the car to make a run myself * * * ” to an apartment building at 1208 Hamilton and, at defendant’s request, to take him “ * * * out to his house * * *that when he. got in the automobile he noticed the air conditioner “ * * * was kind of loppy; in other words, hanging somewhat * * * on an angle * * * hit a little bump * * * it would shake and rattle * * *;” that he drove to 1208 Hamilton, stopped and got out for about ten or fifteen minptes; that defendant remained in the car, waiting for him; that the police “ * * ⅜ arrived almost immediately * * * after his return to the automobile;” that whgn the police first arrived defendant “ * * * was steadying * * * ” the air conditioner, “ * * * leveling it up for me to tighten * * * one of the bolts * *

Defendant’s point that the state failed to make a submissible case is confined solely to a contention that the state failed to prove one essential of the crime charged, that is, criminal intent to tamper with Jones’ automobile without permission of the owner. He does not contend the state failed to prove (1) that he tampered with the automobile, or, (2) that such tampering was without the permission of the owner; his contention is: no proof of criminal intent to tamper without permission. His contention is based on this argument: “There was no evidence that defendant knew Roberts was either not the owner or that Roberts did not have the permission of the owner. There was no evidence that defendant knew who the owner was, or that defendant knew he was in the automobile without the permission of the owner. In short, there was no evidence on which a jury could even infer that defendant, knowingly, did not have the permission of the owner.”

The state contends that it was not essential that it prove defendant’s criminal intent. During oral argument in this court, in response to an inquiry from the Bench as to whether it was the state’s position that there was sufficient evidence to show criminal intent should the court hold criminal intent a necessary ingredient of the offense, counsel for the state asserted: “ * * * I don’t think it is necessary, and offhand, I would say that we didn’t prove criminal intent. We didn’t have to, we didn’t try to, it wasn’t necessary.” We do not agree with the state’s contention or the “offhand” reply of its counsel.

“It has been held that, as a general rule, a statute defining a crime is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms required, and that before a statute will be construed so as to eliminate guilty knowledge or intent as an element of an offense, the legislative intent to do so must be clearly apparent.” 22 C.J.S. Criminal Law § 30, p. 104. Also see: State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 946 [13], 103 A.L.R. 1301. “It has been held, however, that * * * criminal intent is not an element of the offense where the commission * * * of an act is made a crime without any express reference to intent, and that guilty knowledge * * * is not a necessary element of a crime unless made so by the statute defining the crime * * 22 C.J.S. Criminal Law § 30, p. 104, but, “Whether or not criminal intent or knowledge is an element of a statutory crime depends on the intent of the legislature, and is a matter of statutory construction, * * * ” and “The omission in the statute defining the crime of the word ‘knowingly’ is not conclusive on whether or not guilty knowledge is an essential element of the crime.” 22 C.J.S. Criminal Law § 30, pp. 103, 104.

While the question of whether criminal intent is an essential element of the crime of tampering with a motor vehicle has not been directly ruled by this court, since the amendment in 1917 (Laws 1917, p. 411) of Section 8514, RSMo 1909 (now Section 560.175) adding the words “tampering with,” the court has assumed, and said by way of dictum, that criminal intent is an essential element of the offenses proscribed by subsection 1 of Section 560.175. State v. Wahlers, Mo., 56 S.W.2d 26, 27 [3]; State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626, 630, 42 A.L.R.2d 617; State v. Edmonson, Mo., 371 S.W.2d 273, 275 [2]. We now so hold. In Wahlers (56 S.W.2d 1.c. 27), after determining that the evidence was sufficient to sustain conviction, the court said: “Whether or not defendant sufficiently explained his possession of the car so as to exonerate him from criminal intent was a question for the jury.” (Emphasis added.) In Ri-dinger (266 S.W.2d l.c. 630), while discussing the history and legislative purpose and intent of Section 560.175, the court said: “The legislature has clearly indicated that it is the public policy of this State to prohibit and make statutory offenses all such acts of others done with unlawful intent which tends to interfere with the rights of the owners of motor vehicles * * *.” (Emphasis added.) In Edmonson (371 S.W.2d l.c. 275), the court said: “The evidence was sufficient to support the required finding of willfulness. ‘Willfully’ as used in the verdict-directing instruction means intentionally and not accidentally.” (Emphasis added.)

We note in passing that while the burden of proof of intent is, of course, on the state, Roberts, defendant’s guilty companion and only witness, did not exonerate him, or attempt to do so, although he had full opportunity. He did not testify that defendant “knew” or “thought” Gwendolyn was the owner of the automobile. Even if it be assumed the defendant “believed” Gwendolyn was the owner, Roberts’ testimony would not be contrary to a criminal intent to unlawfully tamper with her automobile by removing its air conditioner.

Defendant relies heavily on State v. Castaldi, Mo., 386 S.W.2d 392, in support of his contention that the evidence was insufficient to support his conviction. In Castaldi there was no evidence of an act or deed or circumstance that the defendant tampered with the automobile or otherwise participated in the crime; the evidence showed merely his presence at the scene; no more. Castaldi is not applicable. In the instant case the evidence is that defendant tampered with the stolen automobile, that he participated in the crime. Here, we have the defendant accompanying a man, a Defendant relies heavily on State v. Castaldi, Mo., 386 S.W.2d 392, in support of his contention that the evidence was insufficient to support his conviction. In Castaldi there was no evidence of an act or deed or circumstance that the defendant tampered with the automobile or otherwise participated in the crime; the evidence showed merely his presence at the scene; no more. Castaldi is not applicable. In the instant case the evidence is that defendant tampered with the stolen automobile, that he participated in the crime. Here, we have the defendant accompanying a man, a

The photographs in evidence depict, and the testimony of the officers relates, what they saw inside the automobile with their own eyes while standing outside immediately before and at the time of the arrest. When the arrest was made the officers had information that this was a stolen automobile, and defendant and his companion were in the act of removing its air conditioner under very suspicious circumstances. The officers had reasonable cause to believe defendant was in the act of committing a felony; the arrest was lawful. The court did not err in admitting in evidence their testimony or the photographs. State v. Byrth, Mo., 395 S.W.2d 133, 136 [6]; State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692 [5].

Examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

HOLMAN, P. J., concurs.

SEILER, J., concurs in result in concurring opinion filed.

SEILER, Judge

(concurring).

As the majority opinion states, in prior car tampering cases the precise question whether criminal intent is required has not been before the Court. The statute provides, “No person shall drive, operate, use or tamper with a motor vehicle or trailer without the permission of the owner thereof.” It is thus made wrong by legislation to do so. It does not seem to me there is any requirement the acts prohibited must be done with specific criminal intent, or that the defendant know he does not have the owner’s permission, State v. Edmonson (Mo.Sup.) 371 S.W.2d 273, 275; Eiswirth Const. & Equipment Co. v. Glenn Falls Ins. Co„ 241 Mo.App. 713, 240 S.W.2d 973, 979; State v. Edmonson (Mo.Sup.) 309 S.W.2d 616, 618; Zuber v. Clarkson Construction Co. (Mo.Sup.) 315 S.W.2d 727; State v. Ryan (Mo.App.) 289 S.W. 13 (in the last cited case all the state showed was that the policeman apprehended defendant in the act of getting out of the prosecuting witness' automobile). It seems to me the statute is a valid exercise of the police power in the regulation of motor vehicles, of the type not depending on any guilty or criminal intent, but consisting only of the intentional as opposed to the involuntary or accidental doing of the forbidden acts, 22 C.J.S. Criminal Law § 30, p. 105; 21 Am.Jur.2d Criminal Law, Sec. 89, p. 169, and Sec. 90, p. 170; Haggerty v. St. Louis Ice Mfg. & Storage Co., 143 Mo. 238, 44 S.W. 1114, 40 L.R.A. 151; State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626, 630; Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; 11 A.L.R. 1434.

As I believe was conceded by the state in oral argument, it is doubtful that the state proved criminal intent here. However, since I do not believe it was necessary to prove criminal intent and since the evidence shows defendant was participating in tampering with the vehicle without the permission of the owner, it appears to me he is guilty of violation of the statute, and I therefore concur in the result reached in the majority opinion.