author: ANDERSON, Presiding Judge.

text:
    Glennon A. GRIESENAUER and Bettye Mort Griesenauer, Plaintiffs-Respondents, v. BELLEAU LAKE DEVELOPMENT CO., a Missouri Corporation, Defendant-Appellant.
    No. 32774.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.

      Michael J. Ebeling, St. Louis, for defendant-appellant.
    George E. Sullivan, O’Fallon, for plaintiffs-respondents.
   ANDERSON, Presiding Judge.

This is a court tried case which we construe as being presented and determined as an action for money had and received. There was a finding and judgment for plaintiffs for $4,350.00. Defendant has appealed, contending that there is no reasonable basis for the trial court’s decision.

Since this is a case tried without a jury we shall review same upon both the law and the evidence as suits of an equitable nature. Civil Rule 73.01(d), V.A.M.R. In doing so we determine the credibility, weight and value of the oral testimony and other evidence in the case. ' However, on sharply conflicting oral testimony our determination of the facts involves a certain degree of deference to the findings of the trial court who heard and observed the witnesses, Pope v. Cox, Mo., 417 S.W.2d 929, 933, and we do not set aside the judgment unless it is clearly erroneous. Civil Rule 73.01(d), V.A.M.R.

In 1963, discussions were had between plaintiff, Glennon A. Griesenauer and George Zinselmeier, representing defendant, concerning the sale to plaintiffs of a lot belonging to defendant and the construction of a dwelling house on said lot by defendant. Mr. Zinselmeier then prepared a proposed agreement on a regular real estate sales contract form. This instrument was introduced in evidence as plaintiffs’ Exhibit I, the material portions of which are as follows:

“St. Charles County; Mo., 11-17-63
“Received from Glennon A. Griesenauer and Bettye Mort Griesenauer (His Wife), hereinafter called purchaser, the sum of Forty Three Hundred Fifty & 00/100 Dollars ($4350.00) as earnest deposit and as part of the cash consideration for the purchase of the following described property situated in the County of St. Charles, Missouri, known and described as: Lot #251 Dardenne Lake Estates, Plat #1 In St. Charles County, Missouri, together with (if any) the improvements thereon and * * *: As Per Signed Plans and Specifications which property is this day agreed to be sold to purchaser subject to approval of seller by noon of November 25, 1963, and not otherwise (and if not so approved earnest deposit shall be returned to purchaser) for the total sale price of Twenty Seven Thousand One Hundred Twenty Five & 00/100 Dollars ($27,125.-00) on the following terms: Plus Closing Cost Earnest deposit made as per this receipt. $ 4350.00
******
Cash to be paid on closing date of sale as hereinafter fixed (subject to adjustments as herein provided) .... $22,775.00
* * * ⅝ ⅜ ⅜

Final Sale Price To Be Determined At Time Plans and Specifications Are Approved Purchaser and Seller. G.Z. 12/15/63 (s)

******
The sale under this contract shall be closed * * * at the office of Community Federal, 8944 St. Charles Road * * * on Completion of home on Lot 251 or on such prior date as the parties hereto may agree. All adjustments referred to on the reverse side hereof to be made as of When loan is closed. Title to pass when sale is closed. Time is of the essence of this contract. Possession of property to be delivered to purchaser at time of transfer of title, or on

The instrument in question bears the signature of Glennon A. Griesenauer and by George A. Zinselmeier, for Belleau Lake Development Company. On the reverse side of said instrument there appears the following notation: “Received $4250.00 Down Payment on 12/15/63. $100.00 To Be Paid After Jan. 1, 1964. Received 5/4/64. George Zinselmeier.” (s)

Defendant seeks a reversal of the judgment on the theory that plaintiffs are not entitled to restitution. In support of this contention, it is urged that a binding contract was entered into between the parties; that defendant was at all times ready, able, and willing to perform its part of the contract but that plaintiffs repudiated the contract by demanding a conveyance of the lot, or a return of the earnest money deposit, thereby forfeiting same.

Plaintiffs contend there was no binding contract for the reason that the parties never reached an agreement as to plans and specifications for the house contemplated in their negotiations and in the instrument executed by them, and for that reason the parties agreed to abandon the project which imposed a duty upon defendant to return the earnest money deposit.

Mr. Griesenauer testified that at the time the instrument in question was prepared he had no firm agreement with Mr. Zinselmeier as to what type of house would be built; that he and Mr. Zinselmeier had differences over what would go into the house and its price; that he had plans and specifications prepared by West Wabash Construction Company which were received by him on December 15, 1963; that he did not sign the document on November 17, 1963, but did on December 15, 1963, when there was incorporated therein the provision that the sales price would be determined at the time the plans and specifications were approved; that the reason he signed was because Mr. Zinselmeier said he would have to have a signed contract to give to the Community Federal in order to get a clear title to the lot. An agreement was reached with respect to the sales price in the sum of $27,125.00, but according to plaintiffs’ testimony, he and Mr. Zinselmeier could not agree on the plans and specifications. He detailed certain items in the plans that Mr. Zinselmeier wanted changed which he said would cheapen the house, to which he would not agree.

The sum mentioned in plaintiffs’ Exhibit I, represented the price of the lot, $4,000.00 plus $350 for a membership in the Dar-denne Country Club. As evidence of his membership in the Country Club, Mr. Griesenauer received what he described as a debenture bond. The evidence shows that Mr. Grisenauer paid to defendant the total sum of $4,350.00. He also testified the contract depended upon his selling the house he was then living in, which he was never able to do.

Plaintiff, Glennon A. Griesenauer, gave the following testimony:

“Q. (By Mr. Sullivan) Now, Mr. Griesenauer, was there a time when you and Mr. Zinselmeier agreed that you could not get together on the plans ? A. Yes, there was. Q. And when was that? A. A little over a year ago, I would say, about June of 1965 — near June — along in there. Q. Now, Mr. Griesenauer, * * * did Mr. Zinsel-meier tell you what he would do so far as this money that you had paid him — A. (interrupting) Yes. Q. (continuing)— at that time? A. Yes, sir. Q. And what did he say? A. He said that he would sell the lot and give me my money back because he didn’t want to give me title to it then because the lot was worth about $6,000.00, now. Q. * * * did you agree to this? A. I did, yes. Q. And did Mr. Zinselmeier sell the lot or did he give you any of this $4,350.00? A. Not a bit. Q. Have you made demand on him for this, Mr. Griesenauer? A. I have. Q. And, of your own knowledge, has your attorney made demand on him? A. Yes, sir. Q. Did Mr. Zinselmeier ever give you a reason why he would not return this money ? A. Yes; he told me that he didn’t have it.”

Mrs. Griesenauer testified that she was not present when her husband and Mr. Zin-selmeier disagreed over the plans. Mr. Willman, who was an ex-partner of Mr. Zinselmeier, testified for plaintiffs, but his testimony throws no light on the issues before us.

Mr. Zinselmeier testified that he and Mr. Griesenauer signed plaintiffs’ Exhibit I on November 17, 1963; that Mr. Griesenauer had the plans at that time, for otherwise he could not have had the instrument written and dated on that date and at the specified price; that the price set forth in the instrument was based upon the plans and specifications submitted; that the handwriting which appears on the document was placed there at a later date, December 15, 1963; that on that date there were minor changes which Mr. and Mrs. Griesenauer desired; that they wanted “to kick this around a little bit” until they could determine exactly what they wanted, and took the plans with them; that there were no further discussions after that regarding changes in the plan; and that he was presently willing to go through with his part of the contract.

Mr. Zinselmeier further testified that he did not sell this lot because it belonged to the Griesenauers; that at a later date, when the Griesenauers determined they could not sell their house and did not want to go through with the contract, he told them if he could make a deal with people who were previously interested he would return the money paid under the contract; that he had not been able to make that deal.

On cross-examination, he stated that the lot would sell for $7,500.00; that $4,000.00 was the figure used in the contract for fixing the price of the house and lot; that Mr. Griesenauer asked if he could get a deed to the lot, but he told Mr. Griesenauer he would not get a deed to the lot until the house was built; that defendant had a development loan under which this lot was covered by a mortgage and that under normal procedure there would have to be a partial release on this lot in order to convey title; that it was his contention that defendant had a contract which it was ready, willing and able to perform; that Mr. Griesenauer took the plans and said that when they decided what they were going to do, they would bring back the plans and discuss the final price.

From the foregoing evidence we find there was no binding contract between the parties for the sale of the premises because there was no meeting of the minds as to the plans and specifications.

By the express terms of the instrument this essential element was left to future determination. According to the testimony of Mr. Griesenauer this determination was never made. He further testified that after he presented the proposed plans to Mr. Zin-selmeier the latter wanted material changes therein that would cheapen the house to which he would not agree. This was apparently after the parties had tentatively agreed on the sale price based upon the plans and specifications submitted. It is true that Mr. Zinselmeier testified that it was the Griesenauers who delayed the final determination, and that he was ready, able and willing to go through with his part of the proposed contract. However, we believe, as the trial court evidently did, that plaintiffs’ evidence on this phase of the case was the more credible. This Court has held that if an essential term of a contract is reserved for future determination by the parties, there can be no binding agreement until such determination is made. Bogert Construction Company v. Lakebrink, Mo. App., 404 S.W.2d 779. Plaintiffs’ Exhibit I merely amounted to an offer of a contract which defendant has not accepted.

It therefore appears that there is a failure of consideration for the sum paid in contemplation of the purchase of the house and lot, for which an action for money had and received will lie. 58 C.J.S. Money Received § 5, p. 915. Propst v. Sheppard, Mo.App., 174 S.W.2d 359; Koontz v. Whitaker, Mo.App., 111 S.W.2d 197; Kerrigan v. Kelly, 17 Mo. 275; Keane v. Beard, 11 Mo.App. 10. It further appears from the instrument signed that defendant agreed that if the seller should not approve the sale under the proposed terms the “earnest money shall be returned to purchaser.”

A person who seeks restitution in an action such as this has the duty to account to the other for what he has received from the transaction. Restatement of the Law, Restitution, Sec. 159. In this case plaintiff received a membership in the Dar-denne Country Club for which he paid the sum of $350.00 which membership he has retained. Plaintiffs are not entitled to recover the amount paid for this membership. However, plaintiffs are entitled to recover the sum of $4,000.00, the down payment on the contemplated sale of the house and lot.

The judgment is reversed and the cause remanded with direction to enter judgment for plaintiffs in the sum of $4,000.00 with interest thereon from March 9, 1966, the date suit was filed.

WOLFE, J., and JOHN C. CASEY, Special Judge, concur.

      . This part of the instrument is handwritten. All other parts are printed and typewritten, except for the signatures and a notation of receipt of $4,350.00 appearing on the back of said instrument.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Jack L. BOWERS, d/b/a Jack L. Bowers Asphalt Paving Company, Plaintiff-Respondent, v. Gus SPINAIO et al., Defendants, Gus Spinaio, Defendant-Appellant, John H. Bingham et al., Defendants-Respondents.
    No. 32524.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.

      Harold M. Weber, J. A. Gochenour, St. Louis, for defendant-appellant.
    Vincent J. Cavanaugh, Florissant, for plaintif f-respondent.
    Paul Taub, Overland, for defendants-respondents.
   BRADY, Commissioner.

This appeal is from a judgment entered in an action in equity. Plaintiff sought the imposition of a mechanic’s lien and also prayed for a money judgment. There was a cross-petition filed by the defendants Bingham against the defendant Spinaio who filed a cross-claim against them and a counterclaim against plaintiff. The trial court granted plaintiff a money judgment against Spinaio, denied his request for a mechanic’s lien, awarded judgment to the Binghams on their cross-claim against Spinaio, and denied Spinaio relief as requested by his counterclaim. Spinaio has appealed from that decision. We will hereafter refer to the parties by their names or by their designation in the trial court.

The facts contained in our opinion should be stated with reference to the issues therein decided. In most appeals this is relatively easy; in the instant case it is difficult. This for the reason, as the defendants Bingham urge, most of Spinaio’s brief presents issues not properly before us. That brief contains six allegations of prejudicial error. Of these, three specifically refer to actions of the trial court which are not alleged as erroneous in the motion for new trial. Alleged errors first presented in an appellant’s brief preserve nothing for review when they are not preserved in the motion for new trial. This rule applies to suits in equity. Adams v. Richardson, Mo., 337 S.W.2d 911, 1. c. 915 [1]. It follows these three allegations of error present nothing for our review.

Another of the allegations of error found in Spinaio’s brief reads as follows: “The entire findings and judgments of the Trial Court were against the weight of the evidence, contrary to the facts and evidence and contrary to the admissions of the adverse parties in their testimony. The entire transcript should be reviewed by this Court and judgment entered according to the findings of this Court.” (Emphasis supplied.) We cannot read the emphasized portion of this assignment of error as presenting the contention the evidence was insufficient to support the judgment. The emphasized portions of that assignment make clear the allegations of error found therein are specifically stated to be based upon other grounds. It is true that at least some of such allegations of error are found in the motion for new trial. Therein it is alleged: “1. That the portion of the Judgment in favor of plaintiff and against this defendant is against the weight of the evidence.” That same language is repeated as to that portion of the judgment in favor of defendants Bingham and against Spinaio. The motion for new trial also contains the allegation the judgment in favor of defendants Bingham and in favor of plaintiff is “contrary to the other evidence”. It does not contain any allegation the judgment in favor of plaintiff or the defendants Bingham was “contrary to the admissions of the adverse parties in their testimony” as found in the assignment of error contained in Spinaio’s brief, and that attack upon this judgment is therefore not preserved for review. Adams v. Richardson, supra. Insofar as the allegations the judgment is “against the weight of the evidence” and “contrary to the facts and evidence” are concerned, they preserve nothing for our review as they fail to comply with Civil Rule 83.05(a) (3) and 83.05(e), V.A.M.R., requiring the points relied on in a brief to briefly and concisely state the actions of the trial court claimed to be erroneous and why such contention is made. See In re Hyman’s Adoption, Mo.App., 297 S.W.2d 1; Civil Rule 83.05, Note 167 et seq., V.A.M.R.; Jeans v. Jeans, Mo.App., 348 S.W.2d 145; Walker v. Thompson, Mo., 338 S.W.2d 114. The emphasized portion of this assignment of error therefore presents nothing for our review.

Does the last sentence in this allegation present anything for our review? The motion for new trial does contain assignments of error which, although lacking in clarity, when given a liberal reading can be construed to allege the evidence is insufficient to support this judgment. Of course, even if the motion for new trial had been deficient in that respect, such a contention may be presented for the first time in the brief. Civil Rule 79.03, V.A.M.R. What we are here concerned with is determining how this sentence should be construed. In this connection it must be noted that while the contention the evidence is insufficient to support the judgment can be raised for the first time upon appeal, it is too well settled to require citation of authority that such contention must be presented in appellant’s brief in order to preserve it for review. The question is whether this sentence is an attempt to preserve in the brief the contention found in the motion for new trial the evidence is insufficient to support this judgment or merely an attempt to concisely state the well-known rules of appellate review applicable to equity or jury-waived cases; i. e., that we are to review the whole record and determine the weight and value of the evidence, reaching our own conclusions as to the facts after giving due deference to the findings of the chancellor in matters resting upon the credibility of witnesses. We believe it to be the latter and under that view this sentence of this assignment of error preserves nothing for our ruling. We are supported in this view by the fact that nowhere in the entire argument on this or any other point in Spinaio’s brief are the words “the evidence was insufficient to support the judgment” used. Neither is there language tantamount to that clause to be found anywhere in the brief. However, we are of the opinion the same result would obtain were we to construe this sentence as an attempt to preserve in the brief the allegation of the motion for new trial to the effect the evidence is insufficient to support the judgment. In Schlanger v. Simon, Mo., 339 S.W.2d 825, 1. c. 828, there is a recitation of the rules of appellate review in equity cases. We have earlier herein summarized those rules to the effect that we are to review the whole record, etc. Immediately following that recitation the court in Schlanger stated: “But the appellate court performs the above functions only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge. * * * An appellate court should not become an advocate of one of the parties, and therefore it is not the duty of an appellate court to search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.” In Yates v. White River Valley Electric Co-Operative, Mo.App., 414 S.W.2d 808 [4], a jury-waived case, the same view of an appellant’s duty with regard to compliance with Civil Rule 83.05(a) (3) and (e), supra, as that taken in Schlanger v. Simon, supra, and the instant case, is expressed. We do not construe Glassburner v. Burtrum, Mo., 418 S.W.2d 119, as being in point on this issue. That decision deals only with the propriety of raising the issue of insufficiency of the evidence to support the judgment where no motion for new trial has been filed. It does not rule the question involved in the instant appeal; i. e., how or in what manner such an allegation must be stated in the brief. Moreover, in Glass-burner, supra, the opinion states the allegations in the brief were effectively worded to raise the issue. We are here concerned with a brief wherein the opposite is true. It follows that even if we were to consider this sentence as raising the contention the evidence was insufficient to support the judgment nothing is preserved for our review for the reason Spinaio has failed to point out the specific respects in which he contends the evidence is insufficient.

There are two allegations of prejudicial error found in Spinaio’s brief which are contained in the motion for new trial, preserved in the brief, and are before us for review. Paragraph 7 of the motion for new trial reads as follows: “That the findings in favor of defendant, Bingham, in the amount of Four Thousand Seven Hundred and Twelve Dollars and 11/100 ($4,712.11) and Two Hundred Twenty Six and 40/100 Dollars ($226.40) is beyond the scope of the pleadings in that defendants, Bingham, neither alleged such sum due them nor proved such sum due them.” Almost identical language appears at Points IV and V of the brief. However, even as to these matters Spinaio attempts in his brief to advance reasons why the trial court erred in giving judgment for the larger amount other than those stated in the motion for new trial. As previously stated, these additional arguments must be disregarded. Adams v. Richardson, supra. It follows the issues presented in this appeal for our ruling are: (1) was there any proof upon which to base the judgment in favor of defendants Bingham in the amount of $4,712.11 and $226.40; (2) whether judgments for such sums are (to quote from Spinaio’s motion for new trial and brief) “beyond the scope of the pleadings.”

It will be helpful if we review in a very general way how this case arose. The pleadings are of some pertinence. Plaintiff filed his mechanic’s lien petition against Spinaio, the defendants Bingham, and other defendants who held security interest in the Bingham property on the theory Spinaio was the general contractor for the Binghams and at his request and under contract Bowers had done certain asphalt and paving work on the Bingham land. Plaintiff alleged he had demanded the price agreed upon, received part payment, and still had a certain sum due him for which he prayed a money judgment against Spinaio and the imposition of a mechanic’s lien against the property. (As stated earlier herein the mechanic’s lien was denied and there is no appeal from that decision.) In their answer the Binghams admitted ownership of the property and denied the other allegations of the petition for lack of knowledge. For their cross-claim they alleged agreements with Spinaio whereby he was to construct for them on their property a building containing five stores for $47,-200.00; that Spinaio built the building but failed to pay the subcontractors with the result that mechanic’s lien actions were filed clouding their title; that on Spinaio’s request they had mistakenly paid an amount not pertinent to this appeal for extra work although it was not due; and that Spinaio had received and kept for himself tenants’ rent and rent deposits which exceeded the amount they owed Spinaio by $1,254.25. In those parts pertinent to this appeal the prayer of the petition was for “ * * * such amounts as this Court may determine to be due against the aforesaid structure by way of Mechanics’ Liens, * * * (other sums not pertinent to this appeal) * * * for the aforesaid sum of twelve hundred and fifty-four dollars and twenty-five cents ($1254.25) with interest thereon from the respective dates of receipt thereof hy Defendant Spinaio, and for the costs of this Action, and for such other and further relief as to the Court may seem just and proper in the premises.” The pleadings are devoid of any reference to the sum of $226.40.

A detailed résumé of all of the evidence as to these matters is unnecessary. It is sufficient to note the defendants Bingham served interrogatories on Spinaio and that among these were the following questions and answers which were read into evidence without objection. “ ‘Question 21: When the notification, alleged in paragraph 4 of Spinaio’s cross-claim was allegedly given, had Spinaio accounted to defendants Bingham for rents he had collected up to that time? Answer 21: Yes. Question 22: If the answer to the preceding question is in the affirmative, state in what manner Spinaio accounted to defendants Bingham; state when he accounted to defendants Bingham; state the amounts of money he had collected up to this time; state the amounts of money he had turned over, if any, to defendants Bingham. Answer 22: By check each month. The total amount collected by Mr. Spinaio being $12,483.60 and the total amount paid to Mr. Bingham being $7,771.49.’ ” There was no evidence the difference between these two sums was paid to the Binghams and such was not Spinaio’s contention. His position was and ■still is that the difference of $4,712.11 was all or substantially all exhausted by crediting that sum to his account for work which he characterized as “extras”. The trial court found against him on this issue and, while it is not specifically in dispute in this appeal, it should be stated there is ample evidence upon which the trial court could base its finding Spinaio was not authorized to charge for “extras”.

The witness Hoene testified he disbursed the money with which these buildings were to be constructed and included in such disbursements was the sum of $226.40 for builder’s risk insurance. There is no evidence as to a refund of this amount to be found in the transcript outside of the evidence given by Hoene as to disbursement of this sum. The only other references to these figures found in the transcript are in the trial court’s judgment and in Spinaio’s motion for new trial. Neither do the exhibits show such sum as refunded. Defendants Bingham’s Exhibit “M” consists of the December statement of account given to them by Spinaio containing certain charges and credits. Among these are “Credit by cancellation of liability policy — $229.70” and “Credit by cancellation of plate glass policy — $224.94.” There is no other reference to the sum of $226.40 that can be found in this record. Spinaio’s brief is devoid of any reference to this sum except in the statement contained in his POINTS AND AUTHORITIES, and the following sentence in the brief: “The portion of the judgment for Builder’s Risk Insurance premium refund of $226.40 was incorporated in the extras totalling $1,750.-00, and is a duplication of that judgment. It also should be set aside.”

We will first deal with the contention the trial court erred in including the sum of $4,712.11 within the judgment awarded the defendants Bingham on the grounds that such sum was beyond the scope of the pleadings and is unsupported by the evidence. Insofar as the judgment for this amount being beyond the scope of the pleadings is concerned, it is true that in the cross-claim the defendants Bingham only requested judgment in the amount of $1,-254.25 for rents and deposits collected by Spinaio and not paid to them. The only argument found in Spinaio’s brief relating to the award of this sum is contained in three short paragraphs. The only reference made therein to the contention that the inclusion of this sum was beyond the pleadings is the statement that such an award results in the defendants Bingham being given “ * * * almost $3,500.00 more than they requested in their cross-petition.” Civil Rule 55.54, V.A.M.R., states: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” (Emphasis supplied.) As stated earlier herein the defendants Bing-ham introduced into evidence without objection from Spinaio certain interrogatories and answers thereto which showed Spinaio had collected rents which he had not paid to the Binghams in the amount of $4,712.-11. There was no evidence to the contrary. It is crystal clear from the transcript this was an issue in the Binghams’ cross-claim and was tried as such. Moreover, Spinaio overlooks the fact this case was an equitable proceeding. In such cases the pleadings do not strictly bind the court and this is especially true where there is a general prayer for relief as there was in the instant case. Cannon v. Bingman, Mo.App., 383 S.W.2d 169. The contention that the trial court erred in including the sum of $4,712.11 in the judgment for the defendants Bingham on the ground that such an amount was beyond the scope of the pleadings is without merit.

Was there evidence to support such an award? The interrogatories and answers that were introduced into evidence clearly constitute sufficient evidence upon which the trial court could base the award of such a sum to the defendants Bingham. Again it should be pointed out that Spinaio never contended at the trial, in any after-trial motion, nor in his brief before this court this sum had not been retained by Spinaio from the rents he collected and had never been paid to the defendants Bingham. His contentions in that regard were that the award of such sum was beyond the scope of the pleadings, a matter we have ruled against him earlier herein, and that he was entitled to retain this amount to pay for certain “extras”. As we stated earlier in this opinion, the question of “extras” and whether they were to be paid for by the Binghams in addition to the contract price is not properly preserved for appeal and is not before us, and, as we also stated earlier, that issue was ruled against Spinaio by the trial court and there was ample grounds upon which the trial court could base such a ruling. It follows that Spinaio’s contention the award of $4,712.11 is unsupported by the evidence is without merit.

We pass now to Spinaio’s contentions with regard to the inclusion in the judgment awarded the defendants Bingham of the sum of $226.40. The pleadings are devoid of any specific allegation as to this sum being due the defendants Bingham. The evidence as to this sum differs greatly from that found in the transcript with regard to the other amount here in dispute. The only evidence offered with respect to the sum of $226.40 is that such a sum was disbursed. In other words, a premium in that amount for builder’s risk insurance was paid. There is no evidence there was any refund in that amount paid to Spinaio and due these defendants. The only evidence that could infer any refund of insurance policies is the notation on Bing-ham’s Exhibit “M” showing credits for cancellation of a liability and of a plate glass policy but the amounts involved were not the same as that awarded to these defendants. Since both the pleadings and the evidence are silent as to this sum except for the fact that it was disbursed, it follows that the trial court did err in including that amount in the judgment.

The judgment awarded the defendants Bingham on their cross-claim against the defendant Spinaio is modified by the deletion therefrom of the amount of $226.40, and the trial court is directed to enter a new judgment on the cross-claim in accordance with this modification. As modified the judgment shall bear interest from the date of the trial court’s original entry of judgment in this cause. The costs on this appeal are assessed one-half against the defendants Bingham, as Spinaio did prevail in part as to his appeal against those defendants, and one-half against Spinaio whose appeal against the plaintiff is dismissed for failure to comply with Civil Rules 79.03, 83.05(a) (3) and 83.05(e), V.A. M.R.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment awarded the defendants Bingham on their cross-claim against the defendant Spinaio is modified by the deletion therefrom of the amount of $226.40, and the trial court is directed to enter a new judgment on the cross-claim in accordance with this modification. As modified the judgment shall bear interest from the date of the trial court’s original entry of judgment in this cause. Costs of this appeal are assessed one-half against the defendants Bingham and one-half against Spinaio.

ANDERSON, P. J., RUDDY, J., and JOHN C. CASEY, Special Judge, concur.


text:
    D. W. KNEPPER, Plaintiff-Respondent, v. Jim BOLLINGER and Fennel Brown, Defendants, Fennel Brown, Defendant-Appellant.
    No. 32527.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.

      Smith & Colson, David L. Colson, Farm-ington, for defendant-appellant.
    Roberts & Roberts, Farmington, for plaintif f-respondent.
   BRADY, Commissioner.

This appeal comes to the writer upon reassignment. It involves an action for damages resulting from fraud and deceit arising out of the sale of a 1964 Corvette Sports Coupe automobile. Plaintiff dismissed his cause of action against defendant Bollinger and we will hereafter refer to defendant Brown as “defendant”. Plaintiff recovered judgment against defendant in the amount of $609.57. He appeals alleging there was insufficient evidence to warrant the giving of plaintiff’s verdict directing instruction. In determining that issue we are required to view the evidence in the light most favorable to plaintiff at whose request the instruction was given and who received the jury’s verdict. Lyons v. Taylor, Mo.App., 333 S.W.2d 346 [4].

In those parts pertinent to this appeal plaintiff’s verdict directing instruction required the jury to find Bollinger, intending plaintiff to rely upon such representation, represented “the automobile was mechanically sound and that the factory warranty was good and would replace whatever was required to be replaced, * * * ”; that these representations were false; Bollinger did not know whether they were true or false; the representation was material to the purchase by plaintiff; and that plaintiff relied upon the representation in making his purchase. See MAI 23.05.

The automobile here involved, a Chevrolet Corvette Sting Ray with a fuel inj ection engine, carried a factory warranty of two years or 24,000 miles. Defendant’s son purchased the automobile new from a Chevrolet dealer in Washington, Mo. The transcript goes at length into what work was done on it and who did the work while defendant’s son owned the automobile. However, in view of the submission made in the verdict directing instruction this material need not be included in this opinion. When defendant’s son went into the service his father decided to sell the automobile and took it to one Bollinger, an automobile salesman in St. Francois County, Missouri, for that purpose. It was stipulated that Bol-linger was defendant’s agent and the case was tried upon the theory defendant was responsible for Bollinger’s representation to plaintiff. At that time the automobile was approximately one year old and had been driven 14,000 and some odd miles. Bol-linger had it in his possession for about six weeks before he sold it to the plaintiff and drove it during that time experiencing no trouble with it.

Plaintiff purchased this automobile and gave it to his son to drive while he was attending college in Columbia, Missouri. When plaintiff purchased it Bollinger testified he turned the factory warranty over to plaintiff and told him “the car was in good working condition” and “had nothing but genuine Chevrolet parts on it.” The plaintiff’s evidence as to what representation Bollinger made to him was as follows: “Q Mr. Knepper, did Mr. Bollinger say anything to you at the time you purchased the car other than there was a factory warranty on the car ? A Nothing specific that I can repeat other than it’s a fine, clean automobile. He said that the young man that owned it, his father had never allowed him to race it. Q He told you that the automobile warranty on the car had twenty-four thousand miles or twenty-four months, is that correct ? A Yes. Right.” This is the only evidence as to what representations were made.

While plaintiff’s son was driving the automobile the transmission quit operating and this had to be repaired. He had the work done at Perry Chevrolet, an authorized dealer in Columbia, Missouri. This work was covered by the warranty as was some other work not pertinent to this appeal. On the occasion of the trouble with the transmission plaintiff had written to the Company inquiring how he should proceed to get work done under the warranty. Their answer was that “ * * * the car was to be checked by an authorized Chevrolet Dealer and if he felt that it was within warranty in all probability they would okay it. But they could not give any particular decision on any particular situation until they had been notified by the authorized dealer that work was to be done and that the owner felt that it should be under warranty. * * * Q Was there anything stated as to who would make the approval ? A An authorized Chevrolet Dealer was, who was authorized by General Motors to make an approval of the work to be done.”

About this same time plaintiff’s son noticed water in the engine oil and he again returned the automobile to Perry Chevrolet to determine the trouble. The witness Smith, service manager for Perry Chevrolet, testified that on this occasion the automobile was “Leaking water coolant,” and had a very noisy engine. Smith described what was done as follows: “A First, I took a cylindar leak test and found head gaskets leaking. In the removal of the heads, I found at that time some universal type headers that had been replaced or installed on the engine that were non-factory items. The engine cylindar heads had been off before, because they were non-Chevrolet head gaskets. One head gasket was leaking and the other one was swollen, so I replaced the head gaskets and took the car for a road test. And, when we got back, the car set approximately fifteen minutes and we noticed a drippage on the floor, so we raised it back up on the lift, at that time, to trace the engine noise, and saw the cylindar block cracked between No. 3 and 5 cylindar, on the left-hand side, right below where the cylindar head bolts on. * * * ” It further appeared from his testimony that not only the universal headers but also a non-standard distributor had been put upon the engine which was not of Chevrolet manufacture and a different type of spark plug wire had been installed. His opinion was that the purpose of these changes was to allow for higher revolutions per minute by the engine. The result was that he installed a new engine, the total bill coming to $609.57, and from that time on there was no trouble with the automobile. It appeared from the earlier testimony of defendant's son that the engine head had at one time been removed to allow some work to be done and then replaced. It further appeared that the entire engine had at one time been removed prior to the sale to plaintiff. It was Smith’s opinion that the cracked engine block had been caused by an application of the wrong torque to the head bolts when the engine head had been put back on causing a distortion of the head resulting in undue stress on that particular part of the block with the resultant crack.

It was a part of his job responsibility to determine whether or not the warranty was applicable to various repairs done on automobiles brought into Perry Chevrolet. His decision was that the Chevrolet warranty would not apply to the $609.57 for the reason that the engine had been “highly over-revved” and abused. In reaching this decision he testified the most important thing was the “valve indentations in the top of the pistons” which indicated “highly over-revved r. p. m. valve flotation.” He specifically stated he did not disqualify this work from coming under the warranty because of the non-Chevrolet parts nor because the motor had been removed from the automobile. He did testify there was no way you could tell when the engine had been over-revved or abused so as to cause the valve indentation and accordingly did not know whether it was done by plaintiff’s son or someone else.

Smith’s further testimony was that his decisions as to whether or not the work was to be covered by the warranty can be reversed by Chevrolet or General Motors and they have in fact done so in the past. He did not know whether plaintiff or plaintiff’s son had ever contacted the Company with reference to this work and to his knowledge the Company was never notified that the job was denied under the warranty. Due to that fact and because the Company had on occasion (his estimate was about 5% of the time) reversed his decision as to the warranty coverage, Smith’s testimony was that he could not say whether Chevrolet would or would not have done this work under the warranty had they been notified.

The issue raised by defendant’s allegation of prejudicial error does not require us to burden this opinion with a recitation of the well known elements of a case of fraud and deceit. Essentially it is one of proof. We digress momentarily to note this case was complicated by the fact the parties spent a great deal of time at the trial on the issue of whether or not this automobile had parts on it that were not genuine Chevrolet parts. However, in view of plaintiff’s submission that issue is not before us as we are confined to determining whether or not there was proof to justify the submission of plaintiff’s verdict directing instruction based upon representations to plaintiff the automobile was “mechanically sound and that the factory warranty was good and would replace whatever was required to be replaced, * *

We have determined there is evidence to support the giving of only one of the theories submitted in plaintiff’s verdict directing instruction. With reference to the representation the automobile was “mechanically sound” Bollinget did testify that he told plaintiff “the car was in good working condition”. We deem those statements to be essentially the same. Smith, service manager for Perry Chevrolet and plaintiffs witness, testified that in his opinion the cracked engine block had been caused by applying the wrong torque to the head blocks when the engine head had been put back on. There was evidence that while defendant owned it the engine head had been removed and reinstalled. From this the jury could find that the cracked engine block had resulted from activities which took place prior to plaintiff’s purchase and thus there was evidence that the automobile in fact was not “mechanically sound”.

Passing now to the evidence bearing upon the truth or falsity of the representation “ * * * the factory warranty was good and would replace whatever was required to be replaced, * * * ”, there is no doubt that the factory warranty was turned over to the plaintiff at the time he purchased this automobile. Neither is there any doubt but that due to the age of the automobile and the number of miles upon it the warranty was still in force. Plaintiff’s own evidence showed clearly that some work had been done on this automobile under the warranty. The question is as to the extent of that warranty; i. e., whether an engine for which replacement was required due to abuse would be covered. The warranty is not in evidence but it is obvious from the transcript the parties tried this case upon the theory abuse would justify a denial of warranty coverage and we must review the case in that light.

It is elemental that plaintiff had the burden of proving the representation was false. To bear that burden in the instant case he had to prove the abuse took place prior to the plaintiff’s purchase of the automobile. What was the evidence as to the abuse of this engine? The plaintiff’s own witness testified that there was no way one could tell when the engine had been abused so as to cause the valve indentation he found. His testimony was that he could not tell whether it was done by plaintiff’s son or someone else. The evidence in plaintiff’s behalf in the instant case falls far short of sustaining his burden of proof. It follows that we are confronted with a situation where the plaintiff has submitted the case upon the theory there were two representations falsely made to him but his proof only supports the submission upon one of those representations; i. e., the automobile was mechanically sound.

Prior to the adoption of MAI failure of proof of one of two conjunctively-joined submissions did not render the submission erroneous provided there was proof of the other. It was so held in fraud and deceit cases. See Pinger v. Guaranty Inv. Co., Mo.App., 307 S.W.2d 53 [7]. The situation is vastly, different since the adoption of MAI. MAI 1.02 states: “The practice of submitting dual or multiple theories of recovery or defense in the conjunctive is prohibited.” Accordingly, plaintiff’s submission in the instant case can no longer be excused upon the ground that one of the conjunctively joined submissions is in fact supported by the evidence. It follows the defendant’s allegation of prejudicial error must be sustained. However, since the plaintiff did make a submissible case as to the other representation this case should not be reversed and is remanded for new trial upon all issues.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The case is remanded for new trial upon all issues.

ANDERSON, P. ]., and’ RUDDY and WOLFE, JJ., concur.


author: TOWNSEND, Commissioner.

text:
    Delphia D. WITHERS, Claimant-Respondent, v. MIDWEST FOOTWEAR, INC., Employer, and American Insurance Company, Insurer, Appellants.
    No. 32709.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Evans & Dixon, Edward W. Warner, Emil J. Kohl, St. Louis, for appellants.

      Luke, Cunliff, Wilson, Herr & Chavaux, William J. McCluggage, St. Louis, for claimant-respondent.
   TOWNSEND, Commissioner.

Workmen’s Compensation proceeding in which the Referee and the Industrial Commission rejected employee’s claim for compensation. Upon appeal to the Circuit Court of Franklin County, the final award of the Commission was reversed and the cause remanded to the Commission for further proceedings. The employer and its insurer appeal.

The employee’s original claim recites the circumstances of his injury in the following terms: “Employee was in an awkward position bending over and attempting to set down a box of heels and reaching over other boxes, when he fell forward on his knees and his back and legs were injured.” The employer’s report of injury, made to the Division of Workmen’s Compensation, states: “Strained Back while lifting run of insoles. Lifted box from shoulder height and turned too sharpley (sic) and quick, twisting it.” The referee found that “ * * * the employee has failed to sustain the burden of proof that * * * he sustained an accidental injury * * Alleging that the referee’s award was erroneous, the employee charged that, “The record clearly shows abnormal strain and accidental injury arising out of the employment.”

At the hearing before the referee, the claimant employee testified to the following effect concerning the occasion of his injury: He and another employee were engaged in unloading boxes of heels from a truck. Such boxes were usually stored on shelves but on the day in question the incoming stock was so voluminous that the shelves were soon filled and it was necessary to begin stacking the boxes on the floor. One row of boxes was stacked on the floor along -the edge of the aisle; that row finally became full of the boxes and another row was started parallel with but behind the first row. Holding a stack of six or seven such boxes under the ends— estimated to weigh altogether 35 to 40 pounds — claimant carried the stack to a point where he intended to deposit them behind the first row of boxes. So burdened and with his arms extended somewhat below shoulder level claimant reached over the row of boxes already there and endeavored to set the stack on the floor behind that first row when “ * * * my back popped, and I fell. * * * I was just a little ways from the floor with the boxes when my back popped — and I dropped the boxes, spilling the heels.” He estimated his distance from the floor at less than one foot. At the moment when the pop was heard claimant felt a very sharp pain in his back; he was immediately drawn to one side and fell forward over the heels.

Claimant’s witness Jordan testified that on the day in question he was working with claimant in unloading heels from the truck. He stated that “ * * * we had a very narrow passage there and so when I came back and started out, I had to come back where Dan was, and I waited, just a minute, so he could clear the passage so I could walk through — and while I was standing there he had picked up a large box of these heels and when he done that he kind of stumbled and fell almost to his knees or to his knees * * * he turned pale, you might say, and when he grabbed himself begin to complain you know, with his back, holding his back where he had sustained his injury.” Asked whether he had heard any unusual noise or sound at this time, the witness didn’t recall any. He gave the following testimony on cross-examination:

“Q. When you say stumble, what do you mean?
“A. What do I mean — what I mean, naturally he didn’t hold his balance.
“Q. You saw him fall forward?
“A. Well, he fell forward — or whatever position that he might have fallen.
“Q. When you say you saw him stumble — you don’t mean you saw him walking forward and he slipped on something — that his foot caught on something and he fell forward?
“A. No, I didn’t — he must have done that because * * *.
⅜ ⅜ ⅜ ⅝ * ⅜
“Q. The only thing that you really saw was Mr. Withers bending forward and sort of fall to the floor, is that correct?
“A. Yes.
“Q. And you have no way of knowing of your own knowledge whether he felt a pain before or after he fell, do you?
“A. Well, as far as him feeling pain before, I have no way of knowing that.”

Claimant’s other witness, Matlock, saw claimant pick up a box of heels and turn around with it, but at the time of injury the latter was behind the witness and so out of his vision. Witness heard a noise, “ * * * something like somebody thumping a watermellon (sic) or something like that — maybe a little sharper. Then I heard a racket; boxes falling, something being disturbed and I turned around and he was on the floor.”

Claimant’s description of the physical work regularly engaged in included lifting rolls of material used in the manufacture of shoes, principally leather, running anywhere from 100 pounds upward to an occasional 2S0 pounds. Upon cross-examination he stated that his job regularly involved considerable stooping, bending, stretching and twisting — stretching, bending and stooping in different positions. “Q. Reaching over your head in different positions ? A. Right. Q. Bending down ? A. Right. Q. Twisting around ? A. It was.”

The employer and the insurer offered no evidence relating to the events of the day of the injury. The only testimony on their behalf was that of the medical examiner who testified as to the nature and extent of claimant’s injury.

The referee found that the claimant had failed to sustain the burden of proof of an accidental injury; upon review the Commission found that the award of the referee was correct in all respects and supported by competent and substantial evidence.

The original claim for compensation leaves it unclear whether claimant was asserting that his injury resulted from an unusual and abnormal strain or whether it flowed from some other type of unexpected or unforeseen event happening suddenly and violently. His application for review of the referee’s award does not clarify the matter for he alleges therein that the award was erroneous because “The record clearly shows abnormal strain and accidental injury arising out of the employment” and then proceeds to recite the substance of Jordan’s testimony that he saw claimant stumble and fall. We consider the case from both standpoints but first we note the scope of the Circuit Court’s review of a commission award.

The statutory command is that, “ * * * The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: * * * (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.” § 287.490, RSMo 1959, V.A.M.S. As the Commission has here made no findings of fact other than the ultimate fact of “no accident” the enumerated grounds leave only one basis upon which a court could possibly have the authority to reverse, remand or modify an award, namely, that there was not sufficient competent evidence to warrant the award. Implicitly the award could not be reversed if there was sufficient competent evidence to warrant it. Can there be such sufficient evidence if no evidence in support thereof is offered? The award here being a negative one, the inquiry naturally arises: What may be the competent evidence sufficient to justify that award when the party in whose favor the award operates has submitted no evidence upon the issue at all? Can that evidence — sufficient to justify the award — be furnished by the opposite party who simply fails to present appropriate evidence to warrant an affirmative award ? Can the statute be satisfied by resort to the usual legalistic rules relating to burden of proof ? If so, then the reviewing court has no power to reverse, remand or modify a negative award, if that burden is not sustained But the question recurs: Is the statutory requirement of insufficient competent evidence tested by thé weakness of the case against the award or by the strength of the case made in support of it?

The statute gives us in the stated requirement numbered (4), a clear guide in that situation where the Commission enters an award in favor of a claimant. It gives an equally clear guide where the defendant-employer has introduced evidence tending to negate accident and the award is in favor of the employer. Cf. Hinderliter v. Wilson Bros., Mo.App., 412 S.W.2d 558. But here the award is in favor of an employer who has offered no evidence on the issue of accident. What then can be sufficient competent evidence to warrant the negative award ?

In this dilemma it is to be noted that the fundamental statutory charge is that the reviewing court “ * * * shall review only questions of law * * We assume that the circuit court on the appeal followed that mandate of the statute and consequently we assume that upon the basis of a review of the whole record that court found an error of law committed by the Commission. That would mean necessarily that the circuit court found that reasonable men could not reach the conclusion reached by the Commission, that the conclusion was against the overwhelming weight of the evidence and hence that such conclusion was not the product of reasoned consideration of the evidence but rather of inadvertence, inattention or prejudice.

Examining first the question of whether the claimant’s injury resulted from a slip of the feet or legs or from a fall, which threw him off balance, we believe that reasonable men could find from the evidence that there was no such slip or fall which caused his injury. The claimant’s own testimony shows no slip; it shows no fall occurring prior to the time when his injury was manifested by the pain in his back. The testimony of claimant’s witness Matlock is of no value on this point because, although he saw claimant pick up a box and turn with it, at the critical moment the claimant was behind the witness and out of his vision; he heard a noise behind him, which might have been the popping noise testified to by claimant, and when he turned he saw claimant on the floor. Matlock did not witness the intervening events and of course did not testify as to any slip or fall. Claimant’s witness Jordan did testify that claimant “ * * * 0f stumbled and fell almost to his knees * * * ”; on cross-examination he explained his use of “stumbled” by saying that “he didn’t hold his balance.”' He stated that he did not see claimant slip or catch his foot on something prior to the fall — that all that he really saw was claimant “ * * * bending forward and sort of fall to the floor”. From all the testimony entered on behalf of claimant a reasonable person in the position of the Commission could well find that claimant’s injury did not result from a slip or fall or similar event occurring prior to the onset of pain in his back.

Turning now to a consideration of the possibility that claimant’s injury might have resulted from an abnormal strain, an event which is comprehended within the statutory definition of “accident” (Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401), we see that claimant’s original statement of claim alleges that he was in an awkward position. The awkwardness of that position was shown by the fact that claimant was carrying a stack of boxes in his extended arms at something below shoulder level. He was endeavoring to place the stack of boxes on the floor behind a row of boxes in his immediate front and consequently was in a bent position as he reached over that front row. There can be no quarrel with the contention that the position was an awkward one. But awkward position alone does not show abnormal strain. The claimant would have us find that the circumstances of his injury paralleled those found in Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292. Any theory of abnormal strain involves a consideration of the degree of physical exertion. And the very use of the term “abnormal” (usually joined with the tautological “unusual”) necessitates a reference to the comparative. In the Merri-man case the claimant exerted all his strength in the effort to move the coil of rope and hence his strain was clearly an unusual one. Likewise in Miller v. Lever Bros. Co., Mo.App., 400 S.W.2d 625, the employee was “ * * * using all the strength I had * * * ”; in Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, the employee’s injury followed the application by him of “ * * * an extra surge of power * * In the present case there is no descriptive evidence of the degree of exertion which was exercised by claimant in carrying and setting down the stack of boxes; much less was there any attempt on his part to relate that degree of exertion to that which was routinely put forth in his daily work. In fact, upon cross-examination, claimant’s testimony shows that he was regularly engaged in the unloading of trucks and lifting rolls of leather, that the handling of the rolls was a daily job and that such rolls weighed from 100 pounds upward, occasionally weighing as much as 250 pounds. In addition, his testimony shows that on his job he was routinely engaged in much stooping, bending, stretching and twisting in a variety of positions. In summary it may be said that claimant’s testimony shows that he suffered an injury while in an awkward bent position, carrying and placing a relatively light burden while engaged in an operation where his physical maneuverings were like those in which he was routinely involved from day to day.

From all this we believe that reasonable persons in the position of the Commission could reasonably come to the conclusion that claimant’s injury did not flow from an abnormal strain. Accordingly there was no error of law on the part of the Commission. Finding no error of law committed by the Commission on either aspect of the case, we find no ground for the circuit , cqurt’s reversal of the commission award.

Judgment is reversed and the cause remanded to the Circuit Court of Franklin County with directions to enter a new judgment affirming the final award of the Industrial Commission.

PER CURIAM:

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

Accordingly, judgment reversed and cause remanded with directions to enter a new judgment affirming the final award of the Industrial Commission.

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

      . Grounds 1 and 2, set out in this section, are not here relevant.

      . See Brandt v. E. O. Dorsch Elec. Co., Mo.App., 400 S.W.2d 452, 456.


author: CLEMENS, Commissioner.

text:
    Martin ABOUSSIE, Plaintiff-Appellant, v. Jerry P. McBROOM, Defendant-Respondent.
    No. 32394.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.

      James J. Sauter and Deeba, DeStefano, Sauter & Herd, St. Louis, for plaintiff-appellant.
    F. X. Cleary, Donald L. James, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-respondent.
   CLEMENS, Commissioner.

This lawsuit is for damages from an in-tersectional collision between the parties’ automobiles. The defendant got a verdict and judgment, and plaintiff appeals. The amount in dispute is $8,000.

Two issues are before us. The more complex one arose from plaintiff’s attempt to impeach a defense witness by showing he had made allegations of defendant’s negligence in his own lawsuit over the same collision. The plaintiff also contends the court erred during closing argument by letting defense counsel misstate the testimony of a police officer about the point of impact.

Since both issues touch only lightly on liability, and not at all on damages, a brief factual statement will do. The plaintiff was headed west, the defendant east, on Delor Street. They collided at the intersection of 37th Street, damaging the left-front corners of each car. Plaintiff had stopped on Delor, ready to make a left-hand turn into 37th Street. According to plaintiff, he was stopped with his left directional light blinking when the defendant’s car, moving at 60 m. p. h., veered partly across the center line and collided with plaintiff’s stopped car. According to defendant, he was driving 30 m. p. h. on his own right-hand side of Delor when the plaintiff suddenly turned left into his path. A police officer testified for defendant that debris from the colliding cars fell on the south (defendant’s) side of the intersection.

Two of plaintiff’s points concern David Roerig, a passenger in defendant’s car, who testified favorably for the defendant. Witness Roerig had an action for damages pending against both plaintiff and defendant. Plaintiff contends the court erred in refusing to allow him to impeach Roerig by reading into evidence two allegations of negligence Roerig had made against his host-driver, defendant McBroom. This, on the theory that Roerig’s pleaded allegations were inconsistent with his trial testimony.

On cross-examination by plaintiff, Roerig had testified that the defendant drove on the right-hand side of Delor at all times, his speed was never over 30 m. p. h., and his car was under control. Roerig then acknowledged he had told his own attorney the facts about the collision before filing suit but had not read the petition. Plaintiff again asked Roerig whether McBroom had kept his car in control, and when Roerig answered yes plaintiff’s counsel then asked, “Well, then that isn’t true if you said that in your lawsuit, is it ? ” The court sustained defendant’s objection to the attempted impeachment by prior inconsistent statement, telling plaintiff he would “have to lay a foundation.” But the only other question put to Roerig about his lawsuit was “You’re making some claim that Jerry McBroom was wrong in some way, aren’t you ?” Roerig answered no.

On the next day of trial, after defendant had rested his case, plaintiff offered to read into evidence two allegations of negligence from Roerig’s petition. One charged that McBroom did not have his car under such control as to be able to stop at the first appearance of danger; the other, that by stopping or slackening his speed McBroom could have avoided the collision. The trial court denied plaintiff’s proffer because “the witness was not asked about these allegations.”

Defendant denies plaintiff’s right to introduce Roerig’s pleaded allegations, contending they were merely conclusions, not factual statements, and hence inadmissible to contradict his oral testimony. (See Bright v. Wheelock, 323 Mo. 840, 20 S.W.2d 684 [2].) We need not decide this. Plaintiff’s point can best be decided by determining — as the trial court did — whether plaintiff laid the necessary foundation to impeach Roerig by the pleadings in his own lawsuit.

A non-party witness may be impeached by showing he had previously made a factual statement inconsistent with a material statement in his trial testimony. But it is first necessary to ask the witness whether he made the statement, quoting it and pointing out the precise circumstances under which it was supposedly made. This, to give the witness a chance to refresh his recollection of the previous statement and to admit, deny or explain it. As early as 1851 our Supreme Court ruled that the need to lay a foundation before impeaching a witness by a previous inconsistent statement was “too familiar to need repetition.” Clementine v. State, 14 Mo. 112, 1. c. 115. Of course, if the witness admits making the prior inconsistent statement, he stands impeached and the matter is closed. But if the witness denies or equivocates about having made the statement, the cross-examiner may then introduce evidence showing that the witness did in fact make the previous inconsistent statement. Since 1894 these detailed principles have become deeply ingrained in our law. See Spohn v. Missouri Pacific Ry. Co., 122 Mo. 1, 26 S.W. 663, and cases collected in 29A Mo.Digest, Witnesses, § 388.

Here, the plaintiff did not lay the required foundation. He did not confront witness Roerig with the allegations in his petition and give him a chance to admit, deny or explain them. So the trial court properly denied any inquiry about Roerig’s allegations until a proper foundation had been laid. When plaintiff later offered Roerig’s pleaded allegations in evidence, the trial court properly excluded them because “the witness was not asked about them.” Both rulings followed the principles cited above.

Plaintiff raises a related point about the testimony of another defense witness, the lawyer who had filed Roerig’s suit against both plaintiff and defendant. Plaintiff had previously impeached Roerig on cross-examination by showing he had sued the defendant, in whose favor Roerig was testifying. Further, plaintiff had cast Roerig in an unfavorable light by the unanswered questions about inconsistent allegations in Roerig’s petition. To diminish the effect of all this and to rehabilitate Roerig, defendant sought to shift the prime responsibility away from Roerig personally and onto Roerig’s lawyer. Defendant produced the lawyer as a witness and asked him to state the basis on which he had filed suit for Roerig against both drivers. Over plaintiff’s objection (“that has nothing to do with this lawsuit”), the lawyer explained he felt it was his duty to his client, Roerig, “to file suit against both parties and let the jury decide who caused this accident.” We have decided it was not error to admit this testimony.

When a witness has been impeached the party producing him is entitled to produce evidence to explain, counteract or justify the impeaching testimony. In Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617 [7-9], we said: “ * * * and where the one party, on cross-examination of a witness, opens up a line of inquiry which is designed to discredit the witness in the eyes of the jury, the courts go very far, as the reported cases show, in permitting the other party, on redirect examination, to bring out those aspects of the matter which are favorable to the witness, even though, without the foundation afforded by the cross-examination, the evidence thus brought out would be wholly unjustifiable. [Citing cases.]” That principle would allow Roerig, on redirect examination, to say why he had sued both drivers. Here, the explanation of the impeaching lawsuit came not from the witness himself but from the attorney who had filed it. There is no logical reason the explanation must come only from the impeached witness on redirect examination if another witness also can explain it. This is regularly done where a rehabilitating witness relates the prior consistent statement of another witness who has been impeached by a prior inconsistent statement. See, for example, State v. Crocker, Mo., 275 S.W.2d 293 [6, 7], and Kelly v. American Cent. Ins. Co., 192 Mo.App. 20, 178 S.W. 282 [3], We mention this only to show that rehabilitating evidence may, as here, come from either the impeached witness or another witness.

Here, Roerig’s lawyer could probably explain the reason for Roerig’s suit better than Roerig himself. A similar issue was before the Supreme Court in the case of State v. Spaugh, 200 Mo. 571, 98 S.W. 55 [8], where the defendant showed on cross-examination of State’s witness Brown that Brown had been jailed on the day of the crime and released when he gave the prosecuting attorney a statement incriminating the defendant. The prosecuting attorney countered by taking the stand and testifying he had not jailed Brown for the crime and had not made any threats or promises to induce Brown to testify for the State. In holding this admissible, the court said: “The defendant having assailed the testimony of Brown and sought to create the impression that his evidence was improperly obtained, we can see no valid reason why the prosecuting attorney should not have been permitted to rebut such a charge, * * *.” See, also, Wilkerson v. Missouri Pacific Ry. Co., Mo.App., 69 S.W.2d 299 [11, 12], and 98 C.J.S. Witnesses §§ 571, 621.

Plaintiff’s other point is that during closing argument the trial court erred in allowing defense counsel to misstate the testimony of the police officer who had described the location of the fallen debris. Plaintiff says defense counsel argued incorrectly that the officer had given his opinion about the point of collision. When testifying, the officer described the location of the debris but was not permitted to give his opinion about the point of collision. Then, in closing argument, defense counsel said, “But the Officer said he saw debris where the cars collided * * Plaintiff objected and the court ruled, “Overruled, it’s permissible argument.” Defense counsel continued, paraphrasing the officer’s description of the location of the debris and adding his own inference, “that’s where the collision occurred.”

The trial court’s ruling indicates its belief that the phrase “where the cars collided” was an inference, drawn by counsel from the police officer’s description of the location of the debris. Considering the range allowed counsel in discussing facts and drawing inferences in closing arguments, and the discretion allowed trial courts in controlling those arguments, we rule this point against the plaintiff.

Finding no prejudicial error, the judgment is affirmed.

PER CURIAM:

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

ANDERSON, P. J., WOLFE, J., and JOHN C. CASEY, Special Judge, concur.


author: MAUGHMER, Commissioner.

text:
    FAUST & FORDEN, INC., Respondent, v. Marvin GREENBAUM, Appellant.
    No. 24688.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Rehearing Denied Dec. 4, 1967.
    Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellant.
    James B. Lowe, Kuraner, Oberlander, Lamkin & Dingman, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Faust & Forden, Inc., successor to Hermitage, Inc., is a retail dealer in home furnishings and interior decorations. During 1961, the defendant, Marvin Greenbaum, and Mrs. Greenbaum, planned to and did construct an eleven room residence on Mission Drive, Mission, Kansas, at a cost in excess of $100,000. Mr. Green-baum and Mr. Jack Faust of plaintiff corporation were acquainted with each other and the Greenbaums asked Mr. Faust to come to their home and discuss furnishings and decorations for the proposed new house. At the ensuing meeting the parties entered into an oral contract under which plaintiff was to “furnish items” for the new home at “cost plus 10 percent, plus freight”. In the instant suit plaintiff alleged it had fully performed, but that defendant had failed and refused to pay a part of the balance due under the contract, which unpaid amount plaintiff in its petition computed to be $9,159. Defendant by his answer admitted the contract, asserted payment had been made in full, said plaintiff was attempting to charge more than “cost plus 10 percent” and counterclaimed for both compensatory and punitive damages. A jury was waived and the court, after hearing the evidence in some detail, found for and entered judgment in favor of plaintiff in the sum of $6,363.99.

The defendant has appealed and presents two assignments of error. He says (1) “On a cost plus contract where funds are advanced to the contractor”, [a] the con-tractee must be charged only for actual costs, [b] the funds advanced may only be used for purposes of performing the contract and [c] the contractor must “take advantage of all possible discounts and savings”. (2) [a] the court erred in admitting “business records” of plaintiff and [b] even if such records were properly admitted, the same “were insufficient because they did not show respondent’s actual costs”.

This is a court tried case. Rule 73.01 [d], V.A.M.R. provides:

“The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”.

To the same effect see Section 510.310, V.A.M.S. and Browder v. Milla, Mo.App., 296 S.W.2d 502, 505.

Mr. and Mrs. Greenbaum finally determined to build a house of French architectural style and decided to consult Mr. Raymond Carter, an architect in Oklahoma City, about it. Mr. Faust accompanied them to Oklahoma City for that purpose and they paid his expenses. Only a few of the desired furnishings were to be found in plaintiff’s stock or in Kansas City. The Greenbaums were doubtful about being able to obtain some of the items which they sought even in New York City. In any event, they requested that Mr. Faust go to Paris and after personal inspection, possibly purchase some of the articles in that city. Mr. Faust made the Paris trip and made some purchases there. Before his departure Mr. Greenbaum gave him $5,000 in cash. This advance was in part to cover expenses and in part to pay cash for any articles bought in Paris, where neither plaintiff nor defendant had established credit with the merchandising houses. The parties also traveled to New York City on a buying trip and again Mr. Greenbaum paid the expenses.

The defendant and his attorney found canceled checks showing payment to plaintiff by defendant of more than $30,000. However, plaintiff’s statement of the account in its petition purported to give defendant credit, not only for the payments by check, but also for those made in cash, plus credit for some returned items. This showed total credits in excess of $50,000. Before or during the early stages of the trial, the parties stipulated that defendant was entitled to a credit for payments made in the sum of $51,722.24.

As stated in appellant’s brief “the chief evidentiary basis of respondent’s case was some 257 exhibits (Exhs. Nos. 1-257) which were offered and received in evidence”. Mr. Faust, testifying for plaintiff, described these exhibits as “control sheets”, said he was the custodian or keeper of the records, that they were kept in the regular course of business, were made at or about the time of the transactions which they purport to represent, and were prepared by him. He testified further that when any customer buys or orders an item a “control sheet” is made “with the customer’s name, the number of the item, what it is (table or chair) and the selling price”. He said further that Exhibits 1 to 257, inclusive, were such control sheets and covered all the items and charges made under the contract with defendant. These control sheets were compiled from invoices received from suppliers. Exhibit A is a compilation which purports to summarize the contents of Exhibits 1 to 257, was prepared by Mr. Faust and his attorney from the control sheets and was for trial use. As the trial progressed, this first Exhibit A was referred to by counsel as “Old Exhibit A”. Errors were found and corrected in a new Exhibit A, and the last summary as corrected was called “Corrected New Exhibit A”. These “control sheets” were apparently the first bookkeeping charge made on any item purchased by plaintiff for defendant. This was the procedure not only as to defendant’s purchases, but those made by any other customers. If the article was not in stock or ordered from a catalog, the control sheet was made up when the wholesaler’s invoice was received. We believe and hold that it was not error to receive Exhibits 1 through 257 in evidence. These exhibits constituted not only the best, but apparently the only written evidence regarding the charges made. Section 490.680, V.A.M.S. states:

“Records competent evidence, when,
“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission”.

The trial court apparently believed and we believe that these records met the test and are within the rule as stated by the court in Kennedy v. Boken Associates, Inc., Mo.App., 381 S.W.2d 39, 43, one of the cases relied upon by defendant. There the court said:

“In order to render an instrument admissible in evidence under that act there must be testimony from one or more qualified witnesses of its identity, mode of preparation, and that it was made in the regular course of business, at or near time of the act, condition, or event in evidence, and that the sources of information, method and time of preparation were such as to justify its admission”.

The trial court and counsel painstakingly went over each of these 257 exhibits and the invoices from which they were made. It is not, we think, surprising that some errors were made in the summary prepared for trial use by plaintiff and its counsel. These errors were of different kinds and we shall specifically refer to some of them.

1. Defendant was charged $66 for a pair of andirons, but the control sheet showed $59.20. Mr. Faust testified that Mrs. Greenbaum did not like the first pair taken from plaintiff’s stock so a second pair was ordered from a supplier named Drew, and the $66 charge was correct.

2. An item bought in Paris for 850 new francs. The exchange rate at the time was five francs to the dollar. The correct charge would therefore be $170 instead of $197, which was charged. This error was admitted and the difference of $27 was stricken.

3. Two rugs bought from Stark Brothers for $4,745.16 as shown by Exhibits 95 and 111, but Exhibit A shows payment to Stark Brothers of only $3,558.87. Mr. Faust stated that they still owed the supplier for the difference.

4. Freight charge $22.79 was entered twice on Exhibit A, the compilation made by plaintiff’s attorney. The mistake was conceded and one charge of $22.79 was dropped.

5. Cost of a chest bought from Dunbar, $528. Defendant was charged $590.30 for this particular chest. Plaintiff’s explanation of the difference was that the cost of the chest was $528, his 10 percent commission was $52.80 and there was a delivery charge of $9.50, making a total of $590.30. There was not a separate invoice for each article listed as a separate exhibit for the simple reason that sometimes two or more items were shown on the same invoice.

In his brief defendant says: “Respondent rarely took the cash discounts offered on almost every invoice for prompt payment”. Defendant says plaintiff should have used the cash advancements which defendant made and should have secured such discounts. Plaintiff’s version respecting the Paris purchases for which defendant advanced $5,000, was that he paid cash at the time of the purchases and the invoices reflected the discount, and the net was all that was charged to defendant. Plaintiff testified further that any other advancements were in those instances where the supplier would not extend credit and that defendant at no time had a credit balance with plaintiff.

There is one other listed charge which should receive specific comment. Originally there was a charge against defendant for over $1300 covering Kansas sales tax. Plaintiff, at the time, was a Kansas corporation, but defendant resided in Missouri —hence the Kansas sales tax did not accrue. This item has not been paid by plaintiff and it was deleted from the account against defendant.

There are other costs that sometimes do not show on the original invoices. For example, scotchguarding for the protection of fabrics, postage and import duties. Defendant also complains that plaintiff’s expenses on the Paris and New York City trips were not itemized and receipts were not presented. However, there is no real contention that such charges were unreasonable or were not incurred. The trial court specifically found that they were reasonable. There is no showing in those few instances where plaintiff received the discount for prompt or cash payments that defendant did not also receive it.

We do not believe it is necessary for us to go over each of these 257 separate charges. The trial court spent more than two days doing just that and in this task it had the help of counsel for both parties in ferreting out any errors. The trial court, too, saw and heard the witnesses and we shall accept the conclusions of that court as to the validity of the oral explanations.

Really, it is not defendant’s position that plaintiff took discounts for prompt payment and then charged defendant the invoice price, plus 10 percent, but rather that under the law plaintiff was required to take all possible discounts for quick payment and pass the savings on to defendant. We reject this theory. We do not believe plaintiff was required to do so, especially since there is no substantial evidence that defendant had advanced funds for that purpose or even had a credit balance.

Now the trial court in its finding, said:

“The discount terms normally allowed by manufacturers to retail dealers rightfully belongs to plaintiff. The relationship between plaintiff and defendant was that of a retail business establishment, or interior decorator, and customer. No principal agent relationship existed”.

In its petition plaintiff alleged charges of $60,455.88 and total payments of $51,296.88, leaving an unpaid balance of $9,159. At the trial it was stipulated that the payments amounted to $51,722.24 or an increase of $425.36. This would reduce the balance to $8,733.64. By deletion of the $1380.54 charge for Kansas sales tax it was further reduced to $7,353.10. The judgment was for $6,363.99, showing that the court disallowed the further sum of $989.11, this being for errors and mistakes which were revealed in the item by item examination of the 257 exhibits which made up or comprised the whole account.

Appellant in his brief says that sometimes respondent “did take the cash discount” and cites us to “Tr. 88, 130 and 148.” We have examined those transcript references and as to the first two it clearly shows that defendant was given the benefit of the discount. As to the third item it is not clear that a discount was taken although Mr. Faust admitted that his check to the supplier indicated that it had been taken. Aside from these three items defendant points out no other instance where he claims that plaintiff took discounts for prompt payment but did not pass the saving on to defendant. It is true, as defendant says, that plaintiff takes the position that any discounts for prompt payment belonged to it and it was not required to pass them on to defendant. Plaintiff even produced an ■expert witness from the decorating trade who so testified and the trial court specifically stated its accord with such view. However, after a careful examination of the record, we have concluded that plaintiff took very few discounts for prompt payment and those were in instances where cash or payment in advance was made — for example cash payments made in Paris and purchases where plaintiff did not have approved credits. In those instances the original invoices reflected the discounts and defendant received the benefit.

In our opinion under the evidence here no discounts were received by plaintiff that were not passed on to defendant. Defendant was charged only for plaintiff’s actual costs, plus 10 percent, and it is unnecessary to decide which one would be entitled to the discount, if any such had been taken by plaintiff and had not been passed on to defendant.

It is our opinion that each of appellant’s two asignments of error is without merit. He contends first that Exhibits 1 to 257, inclusive, were not admissible as business records. Those exhibits were the first, best and only complete bookkeeping records covering the transactions. There was testimony by Mr. Faust as to their identity, mode of preparation and contemporaneous making. The trial court found the exhibits were admissible. We agree and rule this point against appellant. The other assignment is that plaintiff can only charge defendant his actual cost and can only predicate his commission on such actual cost. We believe that plaintiff did just that. We reject defendant’s position that plaintiff was required to take advantage of all discounts for prompt payment and pass this saving along to defendant. This second assignment is overruled. We know of no way in which this account could be substantiated with bookkeeping records except by admitting plaintiff’s control sheets which were made up from the invoices submitted by the suppliers. We believe that the controversy between plaintiff and defendant covering this account was gone into very fully. Counsel for defendant went oyer each exhibit in open court and pointed out any claimed errors. The trial court heard the oral explanations of plaintiff and we defer to its judgment as to the credibility of this oral testimony. We do not believe that a new trial or a second accounting would likely lead to any fairer result than did this first one. Our attention has been invited to opinions from other jurisdictions to the effect that in every contract there is an implied covenant of good faith and fair dealing. We agree, but subscribing to that rule does not require reversal of this judgment. Appellant has pointed out no reversible error and we find none.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.