author: CROSS, Judge.

text:
    STATE of Missouri, ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. COMMONWEALTH DRIVE-IN THEATRES, INC., et al. (Exceptions of Jesse Lester Roberts and Edna M. Roberts), Defendants-Appellants.
    No. 24646.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application for Transfer Denied Feb. 12, 1968.
    Charles W. Hess and Charles White Hess, Linde, Thomson, VanDyke, Fair-child & Langworthy, Kansas City, for appellants.

      Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Tom J. Helms, Kansas City, for respondent.
   CROSS, Judge.

By this action in condemnation the State Highway Commission appropriated 4.11 acres of land from a tract containing approximately 19 acres, owned by defendants Jesse Lester Roberts and Edna M. Roberts, as right of way for relocation of U.S. Highway 71. The commissioners appointed by the circuit court awarded defendant landowners $2,000.00 as their compensation. Both plaintiff and defendants filed exceptions to the award. A jury trial resulted in a verdict and judgment in favor of defendants in the amount of $3,375.00. Thereafter defendants filed a motion to set aside the judgment and to render judgment in their favor in an increased amortnt, notwithstanding the verdict; and, in the alternative, for a new trial. As supporting grounds defendants alleged that under undisputed evidence they were entitled to a verdict and judgment in an amount not less than $5,955.-00. The motion was denied and this appeal by defendants followed.

Defendants brief contains two appeal points commonly devoted to a contention that the verdict and judgment in the amount of $3,375.00 are not responsive to the evidence. It is defendants’ position that they were entitled to a verdict and judgment based on two separate items or factors of damage, to-wit: (1) the value of the 4.11 acres (the difference in market value of the entire tract before and after the appropriation), and (2) a sum representing the cost of “removing” certain growing walnut trees pursuant to an alleged “agreement” between the parties conferring upon defendants the right to retain title to and remove the trees from the appropriated lands. Defendants argue that undisputed evidence has established that they are entitled to (1) a minimum of $1,955.00 for their land taken, and (2) the additional sum of $4,000.00 as and for the cost of removing the trees. Therefore, say defendants, they are minimally entitled to an award of damages in the sum of $5,955.00, for which this court should give them judgment or direct the trial court to do so; or, in the alternative, that they should be granted a new trial.

Plaintiff’s petition is in conventional form and contains the following quoted provision, which primarily gave rise to the present controversy:

“(Par.) 40. Relator has no need or use for any fence, crop, building, structure or other things which can be removed from the land being condemned; and, if any such objects are of any value to the respective defendants, said defendants may retain title thereto and remove them if, (1) they shall have filed their written election so to do prior to the commissioners’ appraisal of the property, and (2) the removal is completed not later than 20 days after such future date or event as shall be specified in a written notice from Relator’s District Engineer and served on any occupant of, or defendant claiming an interest in the particular tract of land, after payment into court of any commissioners’ award.”

No written election to retain title to and remove the trees was ever filed by defendants, nor did they respond otherwise to paragraph 40 above quoted. The trees were not removed by defendants, but were bulldozed from the land by plaintiff after taking possession of it.

Defendant Jesse L. Roberts testified that since 1942 he and his wife had owned the tract of land in question and that he had operated a nursery upon it. The land condemned consists of 4.11 acres which was separated from the main portion of the tract by the Frisco railroad tracks. Prior to the taking there were ten to twelve large walnut trees and a number of walnut seedlings located on the 4.11 acre tract, estimated altogether as approximately one hundred trees. In the course of direct examination, Mr. Roberts was asked to state, in his opinion as a nursery man, “What would be the value of the trees on the triangle taken as of April of 1961?” Plaintiff’s counsel objected to any expression on the part of Mr. Roberts, or any other witness, as to the value of the walnut trees, on the ground that paragraph 40 of the plaintiff’s petition gave defendants the right to remove the walnut trees. The trial court sustained the objection and further ruled that evidence would be permitted to show “what it would cost to move the trees.” Whereupon defendants’ counsel stated: “I will withdraw that last question,” and proceeded to inquire of the witness what it would have cost him “to have moved those trees off that triangle (the 4.11 acres) before the highway department came in there?”. Answering the question, Mr. Roberts stated “approximately $4000.00.” However, he admitted that he had not removed the trees, with the explanation that he had not had time to do so. Mr. Roberts expressed the opinion that the entire tract was worth approximately $225,000.00 before the taking and that “the value of the tract after the state highway took away one side of your railroad and the 4.11 acres and the walnut trees” was $200,000.00, making a difference in the before and after value of “approximately $25,000.00.” The remainder of Mr. Roberts’ testimony principally related to the question whether the condemned property should be valued as for commercial and industrial use or as agricultural lands. David Childs and R. D. Groves were produced by defendants as witnesses qualified to testify on real estate values. Mr. Childs testified that the difference in the value of defendants’ land before and after appropriation was $10,275.00 plus any crop of walnut trees “not counting any damage for having to remove any walnut trees.” Mr. Groves testified that the before and after value differential was $10,900.00 not taking into account “any damage for having to remove the walnut trees or any damages in regard to the walnut trees.”

Plaintiff produced two witnesses qualified to express opinions on land value. Clark T. Reid testified that defendants’ entitlement to compensation for the 4.11 acres actually taken was $2,055.00. He gave no “valuation to the cost to remove the walnut trees” and placed no value upon them, stating that he “did not figure that there was any substantial value in those walnut trees as an extra value.” Plaintiff’s witness Tom Vanderpool expressed the $1,955.00 figure (heretofore mentioned) as representing the difference in the before and after value of the 4.11 acres.

In support of their claim of entitlement to an award of compensation for the cost of removing the trees in question, defendants argue that an agreement to that effect arose from paragraph 40 of plaintiff’s petition. There is no foundation of law or fact to support this theory. It is manifest from the language of paragraph 40 that it constitutes merely a tentative offer extending defendants an opportunity to enter into a binding agreement with plaintiff which would have given them the right to remove the trees. Both the offer and the right to remove the property in question were conditioned upon the fulfillment of two separate obligations imposed by the terms of plaintiff’s pleading. First, it was necessary that defendants file an election in writing, in prescribed terms, in order to “retain title thereto (the trees) and remove them.” Second, defendants were required to have completed removal of the trees within the prescribed time. Since defendants are in default of both conditions it is idle to assert that any agreement was consummated between the parties. The suggestion that defendants are entitled to be paid the cost of removing trees which in fact were never removed, and thus be reimbursed for expenses never incurred, is not consistent with reality or reason. State ex rel. State Highway Commission of Mo. v. Haid, 332 Mo. 606, 59 S.W.2d 1057, cited by defendants, is not authority for the proposition.

Defendants also say “said agreement” was evidenced by the trial court’s action in receiving evidence to show an estimated cost of removing the trees, which amounted to a determination that “an agreement controlled the element of damages — based on the cost of removal of the walnut trees.” We can not accept this premise. Whatever reason may have induced the court to admit the testimony of Mr. Roberts that it would cost $4,000.00 to remove the trees, such action could not in any manner or degree affect the rights of the parties or amount to a determination that a contract existed between them when the facts are conclusive otherwise. For that matter, it is apparent that the trial court’s view that the cost of removing the trees should be included in the measure of damages was temporary only, and that later in the trial the court abandoned that view and recognized the proper measure to be applied under the facts in this case. This is evidenced by the court’s submission of the damage issue to the jury by Instruction No. 4, patterned from MAI 9.02, which told the jury they must award defendant “the difference between the fair market value of defendant’s whole property immediately before the taking on April 7, 1961, and the value of defendants’ remaining property, immediately after such taking.”

It also appears that defendants abandoned the cost of removal theory even before the conclusion of Mr. Roberts’ testimony on direct examination. After defendants’ counsel had withdrawn the question as to “the value of the trees on the triangle,” he asked the following questions of Mr. Roberts and elicited the following answers:

“Q. Do you have an opinion of what your entire tract was worth on April 7, 1961 before the taking?
A. Approximately two hundred and twenty-five thousand.
Q. And what, in your opinion, was the value of the tract after the state highway took away one side of your railroad and the 4.11 acres and the walnut trees?
A. Two hundred thousand.
Q. (By Mr. Hess) Then you feel the difference from the two, the before and after value, was approximately twenty-five thousand dollars?
A. Yes, sir, I do.” (Emphasis supplied.)

It is significant that the foregoing testimony does not relate to the cost of removal of the trees but instead to their value in place. It was elicited by defendants’ counsel in conformity with the correct and approved measure of damages to be applied, and reflects understanding and acquiescence on the part of the defendants that the case would be submitted on the basis of the difference between the fair market value of the property as a whole, including the walnut trees, immediately before and immediately after the appropriation. At that point of the trial defendants had placed before the jury evidence on two inconsistent theories of recovery for damages resulting from loss of the trees: (1) the cost of removing them and (2) their value in place as augmenting the value of the entire property. It is not arguable that defendants were entitled to a recovery on the basis of both theories. Of necessity they were put to the election of one or the other in submitting their case. Obviously they were satisfied to go to the jury on the before and after theory and not the cost of removal postulate, inasmuch as they clearly acquiesced in the giving of Instruction No. 4, which hypothesized the before and after theory as the measure of their damages. Insofar as the record discloses, they made no objection to it, offered no special or qualifying instruction and made no objection to any other instruction given by the court. In closing arguments defendants’ counsel made no reference to the subject of tree removal or to Mr. Roberts’ estimate that tree removal cost would approximate $4,000.00. Defendants offered no complaint of any of the instructions in their motion for new trial and none has been raised in this appeal.

There is no merit in defendants’ assignments of error. The recovery in this case must be and is limited to the measure of damages as it was defined and submitted to the jury by Instruction No. 4. The verdict and judgment are responsive thereto and we specifically find that they are supported by the evidence. In reaching this conclusion we have duly considered all authority brought to our attention by defendants, but we find nothing therein to contradict the views we have expressed.

In arguing the two points presented in their brief defendants obliquely suggest: “If this Court were to conclude that there was not an agreement between the parties affecting the element of damage on the cost of removal of the walnut trees, then the trial court erred in excluding the testimony as to the value of the trees offered by landowner, and a new trial would be necessary.” This suggestion of error is not properly before us. It has not been preserved for review for the following reasons: (1) Any cause for complaint of the trial court’s action in excluding the testimony proffered was extinguished by withdrawal of the question which sought to elicit the testimony. (2) No allegation of error in respect thereto was presented to the trial court in defendants’ motion for a new trial as required by Civil Rule 79.03 in order to preserve the question for appellate review. (3) Defendants’ brief contains no point wherein they complain that error was committed by the trial court in excluding the testimony in question showing “what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder;” Civil Rule 83.05.

The judgment is affirmed.

All concur.

      . See State ex rel. State Highway Commission v. Kendrick, Mo.Sup., 383 S.W. 2d 740 where the Supreme Court held that the difference in the fair market value of the whole tract immediately before and immediately after the appropriation of a portion thereof is a proper rule for ascertaining the damages where a part of a tract of land is condemned. Citing Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858; Mo. Digest, Eminent Domain, 136, 138. The Kendrick opinion states that the same result may be reached in another way, i. e., “by awarding the landowner the market value of the land actually taken, plus the consequential damage, if any, to the remainder of the land of which that taken formed a part, caused by the taking, City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839, and cases cited, l.c. 846(11), less the special benefits, if any, accruing in consequence of the making of the improvement. State ex rel. State Highway Commission [of Mo.] v. Craighead, Mo.App., 65 S.W.2d 145, 148.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert J. MORAN, Plaintiff-Respondent, v. Marion C. HARTENBACH and Claude Wheeler, Defendants-Appellants.
    No. 32705.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Rehearing Denied Dec. 26, 1967.

      Richard M. Stout, Heneghan & Roberts, Robert G. Burridge, St. Louis, for defendants-appellants.
    Ziercher, Tzinberg, Human & Michenfel-der, Robert C. Jones, George J. Bude, Clayton, for plaintiff-respondent.
   PER CURIAM.

By this action plaintiff sought to recover $50,000 for personal injuries and damages alleged to have been sustained from a fall in a building owned by defendant Harten-bach and occupied by defendant Wheeler. Trial to a jury resulted in a verdict and judgment for $2000 against both defendants, from which they appeal.

The building in question was known and numbered as 1163 South Kingshighway Boulevard in the City of St. Louis, and was located on the west side of that street, facing east. Defendant Wheeler had occupied it since 1960 under a written lease from Hartenbach (not introduced in evidence) and operated a muffler shop therein. The building was a one-story structure constructed of concrete blocks, had a flat roof about 15 feet high, and was divided into two areas by a firewall of concrete blocks extending from the north to the south wall. Wheeler used the front or east area as his showroom and the back or west area as his shop.

Two offices were located in the shop area, termed by the witnesses as the “main” office and the “protruding” office, the tops of which were about 6 feet below the roof of the building. It is difficult to determine from the transcript the precise location of these offices because early in his testimony plaintiff drew a floor plan of the interior of the building on a blackboard, not filed here as an exhibit, and thereafter points or objects were described as being located “here” and “there” on the diagram. As best we can deduce from the transcript and plaintiff’s photographs the two connected offices were situated towards the south end of the shop area, adjacent to the dividing firewall. It also appears that a skylight approximately 5 or 6 feet wide and 40 or 50 feet long, extending in a north-south direction, was set in that part of the roof over the shop area.

Late in June or early in July, 1962, Wheeler requested Hartenbach to make various repairs to the building, including the skylight, the windows of which leaked when it rained. At Hartenbach’s request plaintiff, a general contractor, accompanied Hartenbach to the building early in July, 1962, for the purpose of ascertaining the work to be done and the cost thereof. Subsequently plaintiff submitted a figure to Hartenbach and was told to go ahead with the repairs. Thereafter plaintiff remembered that during his inspection trip with Hartenbach he had seen some window sash stored on a catwalk beneath the skylight and telephoned Hartenbach about it. Hartenbach told plaintiff that if the sash could be used and money thereby saved he would appreciate it. Hartenbach also informed plaintiff that if plaintiff wanted to contact or speak to anyone at the building he could speak to “the manager,” Mr. Wheeler.

Plaintiff went to the building on July 20, 1962, introduced himself to Wheeler, and told Wheeler that Hartenbach had asked him to make the repairs and that he wanted to check the window sash on the catwalk. Wheeler advised plaintiff to go up on top of the offices, from which point he could climb onto a beam and then to the catwalk. When plaintiff replied that he didn’t know how to get up there Wheeler offered to show him and led plaintiff up some steps situated alongside the “right” side of the main office. From the head of the steps they walked across the top of the main office to a point where the top of the protruding office joined the top of the main office. This juncture of the two roofs was surmounted by a wooden barrier, about 2 feet high, which began several feet west of the firewall and ran westwardly. When they reached that point they stopped and plaintiff asked Wheeler how he could get from there to the catwalk beneath the skylight. Wheeler answered, according to plaintiff, “ ‘You walk out and swing up on top of the beam and get up on the catwalk’.”

The “beam” to which Wheeler referred was in reality two 1½ or 2 inch iron bars, separated by a few inches, which ran from the north to the south walls of the building in the shop area. The central part of the bars were about 18 or 24 inches above the top of the protruding office and approximately 4 feet below the roof of the building, but at unstated distances from the north and south walls the bars angled upward. Adjacent to such angles steel columns rested on the bars and supported a wooden beam beneath the roof of the building. Each of the bars had a turn buckle which could be tightened, and the function of the bars, as plaintiff explained it, was to “ * * keep pressure on the building.”

The top of the main office, across which plaintiff and Wheeler first walked after ascending the stairs, was covered with a wooden floor. As to the top of the protruding office, a wooden walkway extended northwardly from the juncture of the two roofs, the east edge of the walkway being against the firewall and the west edge directly beneath the iron bars. The ceiling of the protruding office consisted of a dry-wall, fiber board material like celotex, which was nailed to the bottom of the joists, so that from the west edge of the walkway the joists over the protruding office were exposed and visible to one on top of the offices.

When plaintiff stopped and propounded his question to Wheeler he was standing at the northern edge of the top of the main office, at a point just west of the iron bars. He was then facing north, towards the top of the protruding office. Asked by his counsel, “Then what did you do?” he answered, “I took one step and went through.” It is obvious from his own testimony and his exhibits that he stepped between the exposed joists, onto the fiber board ceiling over the protruding office, which broke, causing him to fall through the ceiling and to the floor of that office.

Plaintiff alleged in his petition that Wheeler was the agent of Hartenbach for the purpose of showing plaintiff the portion of the building needing repairs and by Instruction No. 2 submitted his case against Hartenbach on that theory. As to Wheeler, by Instruction No. 5 plaintiff submitted his case on the theory that he was on the premises as Wheeler’s invitee. The only specification of negligence mentioned in both instructions is the failure to warn plaintiff that, “The roof over the protruding office on the said premises was so constructed that the fiber board ceiling underneath the floor joists was not protected by wooden flooring * * *.” We observe in passing that neither instruction is a model but need not discuss their deficiencies since no claim of prejudicial error is made by either defendant. Both defendants assert that the trial court erred in overruling their respective motions for a directed verdict at the close of all the evidence, first, because there was no actionable negligence shown in that the condition on which plaintiff relied, the lack of a wooden flooring on the joists over the protruding office, was so open and obvious that there was no duty to warn plaintiff of such condition; and second, because plaintiff’s own evidence showed that he was guilty of contributory negligence as a matter of law. Hartenbach contends, in addition, that the evidence did not show that Wheeler was his agent, and Wheeler, for his part, maintains that plaintiff was only a licensee to whom he was under no duty to give a warning. Because of the conclusions we have reached as to the points common to both defendants it is unnecessary to rule the latter contentions, and for the purposes of this opinion we shall assume that Wheeler was Harten-bach’s agent and that plaintiff occupied the status of business visitor or invitee as to both defendants.

The owner or occupant of land is not an insurer of the safety of even a business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303. The true basis of the owner’s or occupant’s liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 74 A.L.R.2d 938; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468; Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302. Thus the alternative duty to keep the premises in a reasonably safe condition for an invitee or to warn him of the dangerous condition, 2 Restatement of the Law of Torts, § 343, p. 938, applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the inviter but not known to the invitee, and would not be observed by the latter in the exercise of ordinary care. Harbourn v. Katz Drug Co., supra; Dixon v. General Grocery Co., Mo., 293 S.W.2d 415; Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533. And where the condition relied on is so open and obvious that it is or should be as apparent to the invitee as it is to the owner or occupant there is no duty on the latter to warn the invitee of the condition, and he is not liable for injuries resulting from such an open and obvious condition. Sellens v. Christman, Mo., 418 S.W.2d 6; Douglas v. Douglas, Mo., 255 S.W.2d 756; Murray v. Ralph D’Oench Co., 347 Mo. 365, 147 S.W.2d 623; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723.

Plaintiff’s own testimony as well as his exhibits make it crystal clear that the condition of which he claims he should have been warned, the lack of flooring over the roof of the protruding office at the place where he stepped, was so open and obvious that it was or should have been readily apparent to him. The point where he stopped before he took his crucial step was only inches away from where he fell. From the former point the naked roof joists of the protruding office were plainly visible. The fact that the ceiling material was fastened to the bottom of such joists was likewise apparent. Plaintiff was an experienced general contractor and testified that in the course of his work he had installed accoustical tile ceilings over celotex. What is more important, he also testified on cross-examination that the fiber board ceiling nailed to the bottom of the joists was of a type readily recognizable as such if one looked at it, and that he was aware that such ceiling material would not support the weight of a man. Plaintiff testified the only light was from the skylight but no claim was made by him that the light therefrom was so insufficient that he was unable to see the nature of the construction of the ceiling or where he was stepping. To the contrary, plaintiff testified that the accident occurred about 10:00 or 10:30 A.M. on an average summer (July) day; that the point where he fell was only 6 feet below, and only 10 or 12 feet in a direct line from the edge, of the very large skylight set in the roof of the building; that in proceeding from the head of the stairway and across the flooring over the main office, an area more distant from the skylight than where he fell, he had to pick his way over mufflers and tailpipes which were stored thereon; and that the light in that area was sufficient for him to plainly see and avoid stepping on such objects. Further, while plaintiff alluded in his testimony to dust on top of the offices and to mufflers and tailpipes scattered around the general area, he did not assert that there were any such obstructions in the immediate area where he fell or that they prevented him from seeing the nature of the ceiling of the protruding office and the place where he stepped. Lastly, no contention was made by plaintiff that his attention was diverted and that while so distracted he took the fatal step. In fact, he related that when he stopped at the edge of the juncture of the two roofs he was facing north, towards the roof over the protruding office, and on cross-examination he testified:

“Q. Were you looking where you were stepping? A. Yes, sir. Q. Or were you looking up to where you were going? A. No, I was looking where I was stepping.” In short, the facts presented by plaintiff’s own evidence are that the absence of flooring over the place where he stepped was open and obvious and was or should have been readily apparent to him. Under comparable circumstances it has been uniformly held that there is no duty to warn because the invitee has or should have had the information which would be conveyed by a warning. Sellens v. Christman, Mo., 418 S.W.2d 6; Rush v. Townsend & Wall Co., Mo., 343 S.W.2d 44; Howard v. Johnoff Restaurant Co., Mo., 312 S.W. 2d 55; Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W. 2d 318, 142 A.L.R. 858; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W. 2d 723.

We are also inclined to the view that under plaintiff’s own evidence he was guilty of contributory negligence as a matter of law in failing to see the condition of which he complains and in stepping between the joists and upon the ceiling material when he knew or should have known that it would not bear the weight of a man. See Smith v. Alaskan Fur Co., Mo., 325 S.W.2d 740. But as was so aptly said of a female invitee in Ugenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723, 728, “ * * * whether she was careful or not, or whether her conduct was contributory-negligence or not, makes no real difference, because there is no evidence to show that defendant was guilty of any negligence, and, even if plaintiff was careful, defendant is only liable if it was negligent. * * * ”

It follows that the judgment against the defendants should be and is reversed.

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


text:
    Wilbur G. TROYER, Claimant-Respondent, v. ARMOUR AND COMPANY, Employer-Appellant.
    No. 8677.
    Springfield Court of Appeals. Missouri.
    Nov. 29, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 28, 1967.
    Milton B. Kirby, Kirby, Millsap & Lewis, Springfield, for employer-appellant.
    Kenneth H. Reid, Stewart, Reid & Turner, Springfield, for claimant-respondent.
   PER CURIAM.

This is a Workmen’s Compensation case. Wilbur G. Troyer, to whom we shall refer as the claimant, sustained an injury arising out of and in the course of his employment on April 10, 1961. The Industrial Commission found that he had sustained permanent and total disability, and entered an award accordingly. Both the employer and the claimant appealed to the Circuit Court of Webster County, the claimant on the ground that the attorney’s fee allowed was inadequate. The circuit court modified the allowance for attorney’s fee but otherwise affirmed the award. The employer does not now question the allowance of attorney’s fees, but has appealed from the finding that the claimant is permanently and totally disabled.

The claimant'was 45 years old at the time this appeal was argued. He has “about [a] ninth grade” education and has always done heavy physical labor. He started working for the employer in 1947 and “ * * * worked for them steady except for a small period of time when they were on strike” up to the time of the accident. His medical records indicate that he had intermittent back trouble and joint pain for several years prior to his injury.

On April 10, 1961, the claimant was wheeling several heavy boxes of meat into the Farmers Exchange at Conway, Missouri. One of the boxes on top of the two-wheel cart slipped, the claimant “ * * * grabbed it with my other hand and * * * put myself in a heavy strain,” injuring his back. Claimant was referred to a physician who treated him in a hospital for a short time. He returned to work and worked approximately five weeks, off and on, in June, July and August of 1961. His back did not improve, and in September 1961 it was determined that he had a herniated disc at the L-5 S-l level. Surgery was recommended.

On September 26, 1961, Mr. Troyer was operated by Dr. William H. Snead, an orthopedic surgeon. Dr. Snead removed a part of the herniated disc and attempted to fuse the lumbosacral joint with a bone graft. Mr. Troyer was hospitalized until November 8, 1961, when he was discharged wearing a plaster cast. After some initial improvement, the claimant’s back pain returned and he was readmitted to the hospital on April 9, 1962, for further treatment. This treatment did not relieve the claimant’s pain, and he was again discharged from the hospital on April 14, 1962. Dr. Snead continued to see the claimant at intervals but, as the doctor put it, there was “not much change in his condition.”

Further X-rays were made on January 7, 1963. These revealed that a firm fusion of the lumbosacral joint had not been obtained, and Dr. Snead recommended further surgery. The employer declined to provide additional surgery on the ground that it would only increase the claimant’s disability, and consequently the first of four hearings was had on this claim on August 15, 1963. The Division of Workmen’s Compensation ordered the employer to furnish additional medical benefits.

On August 30, 1963, Dr. Snead operated a second time. The doctor found that there was “motion in the interspace,” i. e., in the joint, and that there was a “hairline defect” in the fusion. More new bone was put in the fusion site, and a metal dowel, known as a Knowles plug, was used to detain what remained of the spinous processes and to prevent motion during claimant’s recovery period. Mr. Troyer remained in the hospital until November 22, 1963, and was again discharged. However, X-rays taken February 7, 1964, revealed that the second attempt at fusion of the joint had not been successful.

A second hearing was had on July 31, 1964. Dr. Snead appeared at this hearing, gave the claimant’s medical history much as we have related it, and went on to say that while there was some possibility that Mr. Troyer would improve over a period of of time, “I [don’t] feel I [have] anything to offer him either medically or surgically.” Dr. Snead felt that part of the claimant’s disability was psychosomatic, that his pain was a “combination,” and that claimant had “about 35 per cent permanent partial disability.” The claimant also testified at this hearing, stating that the pain in his back and legs was such that “I imagine during the day time I am in bed at least three-fourths of the time. * * * ” When he attempted to sit, Mr. Troyer had “just such a tremendous pain I can’t set there.” Claimant had pain in his legs, he said, but “my main trouble * * * is my back.” “When I move it hurts my back.” Following his last visit with Dr. Snead, claimant had gone “on his own” to another doctor, Dr. Frank D. Sund-strom, for an examination. Claimant stated positively that he wanted further surgery done, if it was indicated.

Dr. Sundstrom’s deposition was introduced in evidence at this time. He had examined the claimant once, on April 16, 1964. Dr. Sundstrom testified at some length about the nature of his examination, and described a number of painful and disabling conditions which he found to exist. He believed that if the fourth lumbar joint were fused, then the “major portion of [claimant’s] symptoms would also be eliminated.” He also believed the claimant to be totally disabled and thought that condition would continue unless further successful surgery was performed. The doctor recommended further surgery.

The Division of Workmen’s Compensation found, as a result of this hearing, that the claimant was still in need of medical care. Subsequently, in September and October 1964, Mr. Troyer was examined by Dr. Howard J. McAlhany, a neurosurgeon, and Dr. Daniel L. Yancey, an orthopedic surgeon. Dr. McAlhany’s evidence revealed that he had examined the claimant a number of times, once in connection with an application for disability insurance benefits under the Social Security Act. The doctor testified that in his opinion there was still some mobility in the lumbosacral joint, that Mr. Troyer had some psychological problem or problems, that further surgery was not indicated, and that claimant had 25 per cent permanent disability of the body as a whole. Dr. McAlhany did add, however, that in May 1964 he had reported to the Social Security Administration that claimant “[had] been rendered a low back cripple because of his multiple operations and seems much more uncomfortable now than * * * in June of 1961.” Dr. Yancey also made an examination in October 1964, and he concluded that “at the present time, this man appears to be both physiologically and psychologically a cripple. * * * I believe his low back should be re-explored with the idea of refusing his spine and removing the metallic fixation. Following such a procedure a rather prolonged period of rehabilitation, both from a physiological and psychological viewpoint, will be necessary.”

The employer again refused further medical benefits on the ground that additional surgery would increase claimant’s disability, and a third hearing was held on February 3, 1965. The medical evidence we have just recited was received. Mr. Troyer appeared and said that he wanted further surgery, “because of the pains and all I am going through.” Claimant said of his physical condition, “It has been worse. I don’t know quite often lately I’m in terrible pain all over, just down my legs and up my back bone.” Because of his pain, claimant said, “usually I spend most of the time in bed.” Claimant was unable to work, “because it hurt to (sic) bad whenever I’m up.” The Division of Workmen’s Compensation ordered the employer to furnish additional medical benefits.

On March 25, 1965, Mr. Troyer again entered the hospital and was operated for a third time. This time, an attempt was made to fuse the fourth and fifth lumbar vertebrae and the sacrum. Claimant remained in the hospital until June 29, 1965, and was thereafter seen periodically by Dr. Yancey, who performed the third operation, up to December 8, 1965. However, X-rays taken on December 8, 1965, revealed that there was still demonstrable motion in the lumbo-sacral joint, and that the third attempt at fusion had not been successful. On December 8, 1965, according to Dr. Yancey, Mr. Troyer still had considerable pain in his back and in his knees following activity, but was “fairly comfortable lying in bed, as long as he didn’t exert himself he didn’t have very much discomfort.” Testifying by deposition on January 28, 1966, Dr. Yancey stated that he believed there had been some improvement in claimant’s condition as a result of the third operation, and there was a possibility claimant’s back would become stronger, but the doctor estimated claimant’s permanent disability at “between 40 to 50 per cent * * * including all factors.” Dr. Yancey believed the claimant had developed a definite anxiety neurosis, and that it contributed substantially to his disability.

A fourth and final hearing was held on this claim on February 3, 1966. At this time, the Division of Workmen’s Compensation received the medical evidence we have just recited, and further heard testimony from Dr. Charles J. Ash, another orthopedic surgeon. It is sufficient for the moment to say that Dr. Ash had examined the claimant on three occasions, once after the second operation, and twice after the third. Dr. Ash was of the opinion that Mr. Troyer was totally disabled as a result of his injury, both before and after the final operation, and he did not believe the claimant would improve. The claimant also testified. He stated that he now had to use an aluminum walker to move about the house and two canes when he went outside. He could not stand, sit or stoop without extreme pain, and was unable to lift anything heavier than a book or papers. Claimant estimated that because of his disability he spent 80 to 90 per cent of his time in bed.

As indicated, the appellant’s position in this court is that the evidence does not substantially support a finding that the claimant is totally and permanently disabled. In this connection, counsel for both parties have extensively briefed and discussed the general rules applicable to the appellate review of Workmen’s Compensation cases, each claiming that one or another aspect of those rules aids his case. For the purposes of this opinion, it is unnecessary to discuss those rules again, for the scope of our review is prescribed by the Constitution of 1945. We decide only whether the Commission could reasonably have made its finding and reached its result upon consideration of all the evidence before it, and whether its decision is contrary to the overwhelming weight of the evidence. Article V, Section 22, Constitution of 1945, V.A.M.S.; Monical v. Armour and Company, Mo., 307 S.W.2d 389.

As our statement of the background facts suggests and the briefs of the parties show, it is the sufficiency of the medical evidence which is questioned. The employer has expanded its brief somewhat on oral argument and has advanced some more or less abstract arguments which we feel have considerable merit. Regardless of their merit, however, these supplementary arguments are not determinative, and we will limit our discussion to those points which are dis-positive of the appeal. Logsdon v. Duncan, Mo., 293 S.W.2d 944.

The Commission had much medical evidence before it, but primarily and on this appeal we are concerned with the testimony of three doctors, Dr. Snead, Dr. Yancey and Dr. Ash, all admittedly qualified orthopedic surgeons. Dr. Snead treated the claimant in connection with this accident from September 8, 1961, to March 20, 1964. The doctor’s final medical report, based on an examination made February 14, 1966, and received in evidence by stipulation, recited that “he [Mr. Troyer] has considerable low back pain which is a residual of injury and surgical attempts at treatment. He also has a definite anxiety neurosis which contributes to his disability. In my opinion he has 50% permanent disability of the body as a whole.” Dr. Yancey, in his deposition given January 28, 1966, was asked if he had rated claimant’s disability. His answer was “Yes, I felt that he had between 40 to 50 per cent permanent disability, including all factors.” Dr. Ash appeared at the final hearing and testified as follows:

“Q. Did you form any conclusion as to whether Mr. Troyer was disabled as of the date of your initial examination in May of 1964 ?
A. I felt that he was disabled at that time.
* * * * * *
Q. Doctor, as a result of your three examinations of Mr. Troyer on the dates which you have mentioned did you form any opinion as to whether Mr. Troyer’s condition had improved from the time of your first [examination] to the time of your last or whether it had changed in any way?
A. It is my opinion his condition had worsened somewhat.
* >K * * * *
Q. Did you form any conclusion as to whether Mr. Troyer was still disabled at the time of your last examination on January 25, 1966?
A. I felt he was still totally disabled, yes, sir. [Emphasis added.]
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Q. Doctor, do you have an opinion as to whether Mr. Troyer’s present condition is affected in any way by any anxiety reaction?
A. I believe he has a definite anxiety reaction or neurotic component as to his present condition, yes, sir.
Q. Is this unusual for you to find in your field after a medical history as I have related to you in the hypothetical question ?
A. I would anticipate it.
Q. Do you have an opinion as to whether his physical condition would be expected to improve?
A. I do not believe his physical condition will improve.”
‡ ⅝ ‡ ⅜ ⅝ ⅝

Needless to say, the last quoted medical testimony, considered with the other facts and circumstances presented, justify the Commission’s finding that the claimant is totally and permanently disabled; the further question is whether the medical evidence favorable to the award is so insubstantial that the award is contrary to the overwhelming weight of the evidence. In this respect and in particular, the employer’s argument is that Dr. Ash’s testimony cannot be given the same weight as that of the doctors who treated the claimant because he did not have the same opportunity to observe and evaluate the claimant’s behavior. Of course, for some purposes a distinction is made between an “examining physician” and a “treating physician,” Anno., 175 A.L.R. 274, 279-281, but in this case, so far as estimates of disability are concerned, the distinction is of no consequence. The cause of claimant’s injury was firmly established by other evidence, Dr. Ash was testifying on the basis of personal observation and clinical and X-ray examination, and he could competently express an opinion about the terminal condition of the injury based on his own knowledge and observation. Hay v. Ham, Mo.App., 364 S.W.2d 118. Considering the whole record, we cannot confidently say the award is contrary to the overwhelming weight of the evidence. The most that can be said is that conflicting scientific opinions were expressed, all based on adequate data and observation. The Commission had a choice. Vollmar v. Board of Jewish Education, Mo., 287 S.W.2d 868; Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773. No question is raised here concerning the allowance of attorney’s fees, but we think the trial court properly modified the award by increasing the allowance.

For the reasons indicated, the award, as modified by the circuit court, is affirmed.

All concur.


author: TOWNSEND, Commissioner.

text:
    RYAN EQUIPMENT COMPANY, a Missouri corporation, Plaintiff-Respondent, v. Walter FICKEN, Defendant-Appellant.
    No. 32699.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Rehearing Denied Dec. 26, 1967.
    Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for defendant-appellant.
    Muehlenkamp, Brazil & Murray, Dell-wood, for plaintiff-respondent.
   TOWNSEND, Commissioner.

In this court-tried case plaintiff brought its action against defendant on an open account and defendant counter-claimed for breach of contract. Plaintiff asked for judgment on the account in the principal sum of $4817.53. Judgment for that amount plus interest was rendered in plaintiff’s favor.

This Court’s consideration of an appeal in such a court-tried case is governed by Section 510.310, RSMo 1949, V.A.M.S. (Supreme Court Rule 73.01(d), V.A.M.R.: * * * 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. * * * ’>

The open account covers in general charges for equipment, parts, repairs and services with the usual credits for payments made and other allowances. There is no substantial evidence challenging the accuracy of the account other than for interest items on allegedly past due balances. Consequently controversy focuses almost entirely upon the counter-claim. The trial court made no findings of fact and entered no conclusions of law.

In support of his counter-claim defendant testified that one Walters entered into a contract with Leonard and Company to excavate and grade a certain tract of land at Fenton, Missouri, with compensation therefor at fifteen cents per yard of dirt moved and that Walters orally sub-contracted the job to defendant Ficken. Under the sub-contract defendant agreed to do the work at his own expense and Walters agreed to pay him at the rate of $14.00 per hour for each of the “160 Motor Scrapers” used by defendant. Defendant commenced his work on November 18, 1959. On November 25, 1959, Mr. Hartman, vice-president of plaintiff, advised defendant that plaintiff desired to collect from Leonard and Company the payments that would become due to Walters under his contract with Leonard and Company and that plaintiff “would see that I [defendant] got paid. Would it make any difference to me if I got paid from them [plaintiff] * * *. I told him that I would agree to let them collect it if they would pay me.” “Q. And did Hartman agree to do this?” A. “Yes.” In implementation of the latter understanding one of plaintiff’s employees brought to defendant a document reading:

“I fully agree to the above method of payment, realizing that my payment for work will have to come from the above proceeds, and that I hereby agree I will not file any lien on ground worked due to non-payment to me or demand any payment from Fay Leonard & Company, Inc.”,

which defendant signed.

The latter instrument is the second page of an exhibit which plaintiff introduced upon the taking of depositions; the first page is a letter addressed to Leonard and Company, signed by Walters, stating: “I hereby authorize and request you in connection with all payments due me on this contract to prepare checks payable as follows: ‘David Walters D/B/A David Walters Excavating and Ryan Equipment Company’. I hereby also authorize and request you to mail all checks direct to the Ryan Equipment Company, 3350 Morganford Road, St. Louis 16, Missouri. * * * Please sign at the bottom accepting my requests as listed above and return accepted copy direct to the Ryan Equipment Company.” At the trial the whole of the two-page exhibit was admitted as a defendant’s exhibit. Defendant testified that when he signed the second page he did not see the first page. The second page bears the signed notation: “Accepted: Fay Leonard & Company, Inc. 11-28-59.”

Resuming the review of defendant’s testimony: Defendant stated that he knew that in signing the document last mentioned he was waiving any right to a mechanics’ lien. “Q. And upon what was the consideration for you waiving that? A. The reason I did I knew I was doing a lot of business with Ryan, I was buying parts from him, and I trusted that we’d get along good as anyone. Q. And was that one of the things that you discussed with Hartman? A. Yes. Q. Is this waiver? A. Yes. Q. Would you, Mr. Ficken, have signed this agreement that you signed if you had not had Mr. Hartman’s promise that you would be paid? A. No, I wouldn’t of signed it if they wouldn’t of agreed to pay me.”

Plaintiff has nowhere raised any question of Hartman’s agency.

Under date of December 19, 1959, defendant rendered to plaintiff an itemized statement showing an indebtedness of Walters to defendant on the Fenton job of $2683; the statement showed the number of hours worked by defendant’s machines to and including December 16 at-the rate of $14 per hour, plus a charge of $30 for gravel furnished by defendant. The statement was delivered by defendant in person to Mr. Hartman at the Ryan office— “He wanted to know in December. * * * He asked me for it. * * * He wanted to know how we stood and I made it up to the 16th.”

Defendant then testified to further events in the month of December:

“Q. * * * What occurred after you delivered this bill there?
A. Well, a little later, right at the end of the month, he asked me to bring my account up to date.
Q. Who did?
A. Mr. Hartman.
Q. And how did he go about asking—
A. Well, he asked me if I would give him a check for $3500.
Q. Did he explain what that check was for?
A. He said that it would bring my account to date.
Q. Was there any understanding between you and Hartman as to what would happen to that check?
A. Yes. I didn’t want to give him the check. I said I’m working there and we’re going to have that much worked out in a short time. And he said well, I need the check now to balance the account out for the first of the year. He said I will, I’ll hold that check. I won’t cash it. I just need it here to balance out the account. I won’t cash it. I’ll hold it. So I said as long as he wasn’t going to cash it it was all right. I’ll give him the check, and I mailed him the check.
Q. Now, who suggested the amount of the check?
A. He did.
Q. Up until that time in December did you know how much they had received from the Baudendistel — Fay Leonard—
A. No, I didn’t think they received anything.”

The check so issued was dated December 29, 1959, but was not presented for payment until after August 22, 1962, by which time defendant had stopped payment on same.

Defendant completed his work on the job in May 1960. He received no pay for work done until June 4, 1960. On the latter date the plaintiff issued its check for $2683 payable to “David Walters d/b/a David Walters Exc. Co. and Walter Ficken and Ryan Equipment Co.” As to his relationship to that check defendant testified: “ * * * I barely saw the check. They asked me to endorse it and they’d apply it to my account. Q. Where did this occur? A. In Ryan’s office. Q. Who was present? A. Mr. Hartman. I don’t know. I guess it was other office help. Q. Was Walters present at the time? A. No. Q. And all you did was endorse the check? A. I just endorsed it. I never handled it at all. Q. Was there any stub on the check? A. I didn’t think there was. I didn’t — I never saw it. Q. At that time on June the 4th did you know how much Ryan had received in payment on this job? A. No. Q. Did anyone tell you that they’d received anything? A. No. Nobody told me how much they got paid or anything.”

Defendant placed in evidence photostats of Leonard and Company checks made payable to Walters and Ryan Equipment Company in the stated amounts on the specified dates:

December 5, 1959 - $1785.00
January 9, 1960 - 2295.00
February 15, 1960 - 1020.00
April 22, 1960 - 1275.00
June 4, 1960 - 4461.75.

Defendant also entered in evidence the following letter handwritten on the stationery of the plaintiff:

“6/4/60
Fay Leonard & Company Inc. 6978 Chippewa Street St. Louis, Mo
Attn: Mr. R. A. Baudendistel President
Dear Sir:
This is to notify you that upon your final payment of $4461.75 on the following job completed by David Walters D/B/A David Walters Excavating, the Sieveking Oil Co and Walter Ficken will be paid in full and you are hereby released from any liens on this job.
‘Grade tract of land in St. Louis County, Missouri on the south side of Gravois Road at Missouri State Highway #141, North’
All papers have been returned to David Walters and he is paid in full for the above job.
Yours very truly
Ryan Equipment Company by H. M. Hartman Vice President”

This letter was produced by Leonard and Company in response to a subpoena and Mr. Baudendistel testified that it had been under his control since the date of the letter and was contained within the files of his company relating to the Fenton job. Upon cross-examination by plaintiff’s counsel he stated that he was not familiar with Mr. Hartman’s signature but added “I talked to Hartman a few times before that and I would refuse to pay it unless Hartman sent me that, cause Hartman would be the only one, I think, at your company that I would talk — I never talked to Mr. Ryan or anybody.”

At some unstated time defendant delivered to plaintiff a statement of David Walters’ account, which showed in itemized form the number of hours worked by defendant’s machines from November 18, 1959 through May 15, 1960 (plus other items). This statement showed a balance of $7419.-25 owing to defendant. Subsequently another statement was delivered in person to Mr. Hartman showing a credit of $2683, leaving a balance due defendant of $4736.25. The latter statement was obviously rendered subsequent to June 4, 1960, for the credit entered thereon for $2683 was for “Credit given by Ryan” to defendant on that date. The balance shown due defendant after deducting that payment was $4736.25. The latter statement was introduced as a plaintiff’s exhibit.

Later, after plaintiff had begun adding interest to statements, of defendant’s open account, defendant rendered a further undated statement of the items last specified but with interest charges added for the period from January 1, 1961 through December 31, 1962. This statement was directed to “Ryan Equipment Company for Dave Walters on Baudendistel Job at Fen-ton, Missouri.” With the interest charges added the balance shown due defendant was $5304.57. This statement was mailed by defendant to plaintiff.

Plaintiff’s only witness was its president, Mr. Thomas H. Ryan. Verifying invoices rendered to defendant, he testified that the balance owed by defendant on May 18, 1962, was $4471.74, plus an interest charge of $345.79 entered on that date. However, the debit balance of $4471.74 included an interest charge of $283.93 entered in plaintiff’s books on January 12, 1961. We proceed to state the substance of Mr. Ryan’s testimony: In the fall of 1959 Walters was in default on a debt to plaintiff for approximately $2500 for equipment purchased and services and repairs furnished. In addition Walters was in default on a mortgage debt to CIT for equipment purchased from plaintiff ; as to this indebtedness CIT had no recourse against plaintiff. Both plaintiff and CIT were threatening to repossess Walters’ equipment. In this setting plaintiff agreed not to repossess equipment on the basis of the debt owed it only if Walters would have all proceeds from the Leonard and Company contract assigned to it “to pay his account”. Under the assignment plaintiff was paid $10,836.75 by Leonard and Company. Plaintiff in turn paid $3624 to CIT and $2033.44 to Sieveking Oil Company. On June 4, 1960, plaintiff paid $2683 to defendant and, according to Mr. Ryan, retained $2495.87 for itself; upon cross-examination Mr. Ryan was asked:

“Q. * * * Now then, in June of 1960, when you paid the amount of twenty-six hundred and eighty-three to Ficken what were you paying that for?
A. To the best of my knowledge that was the full amount that we had over and above our own collection that was to be applied to Mr. Ficken’s account and the check was so marked.
Q. Then I understand your testimony to be that the reason that you paid Ficken in June of 1964 [?1960] the amount of $2683.00 was a coincidence that that just happened to be the amount that remained ?
A. I couldn’t say how it was a coincidence or what, no.”

Mr. Ryan’s testimony discloses that he had little familiarity with the details of the transaction in which Walters assigned to plaintiff his rights to payment for the Fen-ton job and in which defendant Ficken consented to the assignment and waived any right to a lien. He was asked by the Court if there was an agreement between plaintiff, Walters and defendant to have Leonard pay plaintiff and “from that” plaintiff would pay CIT, certain oil companies and yourself and he answered “That is right.” The document which constituted the assignment to plaintiff makes no mention of CIT or of any oil company. Moreover, as inquiry relating to the transaction developed, Mr. Ryan contradicted his last recited testimony. He was asked:

“Q. But was there any agreement between you and Ficken or you and Walters that you would pay CIT ?
A. I have never discussed this matter with Mr. Ficken. It was discussed with Mr. Walters.”

Mr. Ryan stated that as of January 1, 1960, he had not seen Ficken’s initial bill for $2683 and added: “I had nothing to do with this set up.” When asked when he had first seen that bill he answered: “I could not answer that because I personally did not get into this situation until way after that job was over.”

When queried about the authority under which plaintiff paid Sieveking Oil Company on behalf of Walters, Mr. Ryan at first found that authority in the assignment document which makes no mention of payments for fuel or oil. After a recess and a search of correspondence he found a letter from Leonard and Company dated January 7, 1960 enclosing a check for $2295 and stating that it was being forwarded with the understanding that plaintiff would make a satisfactory arrangement to pay Sieveking Oil Company. At a later point, adverting to the document of assignment, he referred to it as “this agreement, which I did not enter into”.

In endeavoring to explain the background, Mr. Ryan testified: “I made an understanding with CIT, which is common practice — and I was under no obligation now, I mean legally — that if he would assign his amounts to us we would pay CIT so that their equity would be building up in this equipment and we would pay ourselves. And we also agreed verbally, I assume, until we got that letter, that he would pay the oil company.” Further testimony by this witness:

“Q. And in this agreement to the assignment in [by] Walter Ficken you noticed that he was stating that he is to be paid from the proceeds of the job.
A. From the proceeds, that is right.
******
Q. And this was the agreement prepared by your office for Ficken to sign, isn’t that correct?
A. That’s what it seems to say. But our understanding was, and the only reason we were involved in this, was to collect money for CIT and collect money for Ryan Equipment Company that he owed us.”

At the most the Ryan testimony shows that he had no knowledge of the circumstances surrounding the giving of Ficken’s consent to the assignment and Ficken’s waiver of lien. His whole understanding of and interest in the taking of the assignment was directed to the liquidation of Walter’s indebtedness to CIT and to Ryan Equipment Company and he was uninformed as to the manner in which that purpose was being implemented.

In June 1961, Mr. Ryan wrote to Mr. Ficken, calling attention to an alleged debit balance of $4483.45. Apparently some difference of opinion had developed between them regarding the performance of machines purchased from plaintiff by defendant, because Mr. Ryan notes that of the amount allegedly owing only $1995.06 was attributable to purchases for the machines in question. On July 6 Mr. Ryan made further inquiry of the defendant regarding his plans with reference to the account. Between the latter date and September 26 some adjustment of the complaints which defendant was making about the machines was attempted, for on the latter date Mr. Ryan wrote to defendant: “I have today authorized our shop to do the work as outlined in their (“our man and the Allis-Chalmers man”) report and which they assure me will correct the difficulties that you are having * * *. The work that we are doing will of course be done on a no charge basis.” On December 7, plaintiff again wrote to defendant, enclosing invoices for work done on two machines for $323.49 and $594.15 respectively and stating: “This is a very considerable amount of free work to put your machines into shape. * * * We have carried out our part of this bargain and now we ask that you carry out your part of the agreement by either paying your account in full or a substantial portion of it with proper arrangements made to pay the balance.”

In December, 1961, Mr. Ryan suffered a heart attack and was “off work” for “four or five months”. In January 1962, Mr. Hartman, writing on behalf of plaintiff, requested payment from defendant and stated that if payment were not received by January 29, plaintiff would “have no other alternative than to turn this account over to our Attornies for their legal action * * A letter to defendant dated March 26, 1962 from Mr. Hartman among plaintiff’s exhibits reads: “After our discussion of March 14, 1962, re your account, you were going to check your records and advise us of a figure you would offer to clear up your account. We would appreciate you contacting Tom or myself re your offer so that this matter can be cleared up.”

Queried about the period covered by the letters, Mr. Ryan testified that during that time defendant never stated to him that plaintiff owed defendant anything. Pertinent to this phase of the controversy is the further testimony of defendant:

“Q. Then what occurred after this $2683.00 was received? What’s the next thing that happened?
A. Well, from then on I’d get calls from ’em and statements and they wanted me to pay some more on the bill. And I would tell them that I had more cornin’ than what the bill of mine was due.
Q. Did you give a copy of a total bill to them as is shown on Defendant’s Exhibit 5 showing the total bill and the total breakdown?
A. Yes. But I give, I give one before this. This one later had interest in it.
■Q. And that bill showed — the first one you gave them showed a balance of seventy-four nineteen twenty-five, the total amount?
A. That’s right.
Q. Now then, you say you delivered subsequently another bill with interest added ?
A. Yes. Then I gave ’em the one showing this twenty-six hundred dollars credit. And then later I received a bill with interest added to my parts bill and I added interest in my bill and sent ’em another one.”

When defendant took to plaintiff his total bill (the one without interest added) he delivered it to Mr. Hartman with whom he had most of his dealings — “He always made appointments for me to come in and see him and I’d go in and we’d talk it over.” At a conference in 1961 or “might of even been in ’62”, with Mr. Ryan present, “we discussed our problem and what I owed him, what he owed me, * * By defendant’s calculations there was a difference of about $500 in defendant’s favor at that time. “Q. And did you make a demand at that time for that amount ? A. Yes. He asked me what I would settle for and I said, well, $500, and he [Ryan] got up and walked out. * * * Said he didn’t want to be bothered with it. Wasn’t feeling good. And he got up and went home. Q. And he left you and Hartman there? A. Me and Hartman stayed there and talked for 30 minutes, or so, after that.” It was at this meeting with Mr. Ryan and Mr. Hartman that defendant learned how much money plaintiff had collected on the Fenton job. Further direct examination of defendant:

“Q. Mr. Ficken, at any time did you ever agree to pay Ryan Equipment without them paying you for your bill for this?
A. No. I always told them that I would pay them whenever they would pay me.”

Merlin P. Ray, a salesman of plaintiff during 1959 and 1960, testified that it was regular procedure of plaintiff to prepare a list of delinquent accounts of which each salesman was furnished a copy and thereupon the relative salesman would attempt to collect from any customer on the delinquent list whom he regularly serviced. Finding the name of Mr. Ficken upon such a delinquent list, the witness was informed by the supervisors, including Mr. Hartman, that that account was being handled through the office and that he was instructed not to call upon Mr. Ficken for collection purposes although he continued to call upon him for sales. The Ficken name did not appear upon the delinquent list after Hartman had so informed Ray.

Mr. Hartman resigned his position with plaintiff in January 1963. He was not called as a witness. Walters has long since departed for parts unknown.

We reproduce verbatim that portion of the transcript concluding the trial:

“By Mr. Nixon [for defendant]: I would like to have five minutes on each side to cover it.
“By the Court: Well, that’s a waste of time. The Court’s already made up its mind.
“By Mr. Nixon: All right.
“By the Court: I don’t mean to cut you short either.
“The Court finds in favor of the Plaintiff and against the Defendant on the Petition in the amount prayed for.
“As I calculate three years, six months, twenty-four days interest comes to $932.-00 interest.

“Finds against Defendant for the Plaintiff on the counterclaim.”

The usual entry of judgment followed.

No opinion was filed by the judge. As a consequence we are not informed of the base upon which he founded his holding against the defendant on the counter-claim. Two possibilities immediately suggest themselves :

1. The Court rejected as incredible the whole of defendant’s testimony relating to the alleged promise that plaintiff would see that defendant was paid for his work on the Fenton job.

2. The Statute of Frauds. Plaintiff did not plead the Statute specifically in its answer to the counter-claim. Neither was objection made to defendant’s testimony relating to the details of the formation of the agreement with Hartman and to the circumstances of defendant’s signing of the consent and waiver of lien. Plaintiff raises the question of the Statute of Frauds for the first time in its brief.

Considering these possibilities in order: If the Court based its holding upon defendant’s lack of credibility, its conclusion cannot be accepted. The Court had the defendant before it and, arguendo, it may be assumed for present purposes that he was not an impressive witness. However there is too much in the record otherwise tending to confirm defendant’s story about the agreement entered into with Hartman acting on behalf of plaintiff to justify a cavalier dismissal of his complaint.

It is to be noted first that the whole initiative in the matter of Walters’ assignment and defendant’s consent and waiver of lien was taken by the plaintiff. There is nothing to suggest that defendant initiated any negotiations looking to the making of any such arrangement. The entire set-up orig nated with the plaintiff and according to Mr. Ryan’s testimony it was developed to serve its own purposes, namely, to procure payment of Walters’ indebtedness to itself and to its financing confrere, CIT.

Next, Mr. Hartman’s letter of June 4, 1960, furnishes cogent evidence that there existed some such agreement as that stated by defendant. In that letter to Fay Leonard and Company, plaintiff promised that upon the latter’s final payment for the Fenton job “Walter Ficken will be paid in full”. Leonard and Company had known since November 28, 1959 that Ficken looked to the proceeds of the Walters’ contract for his pay and that he had waived his right to procure a mechanics’ lien on the Leonard property. The final payment had been the subject of talks between Hartman and Mr. Baudendistel, president of Leonard and Company, and in his caution and prudence the latter had advised that he would refuse to make the payment unless such a letter were furnished by Hartman. Hence the promise was not a mere “off-the-cuff” agreement to take care of Ficken. It was a deliberately made commitment designed to induce action by a third party. The letter can be properly interpreted as an acknowledgment of an obligation to pay “Walter Ficken * * * in full.” The promise was in no way limited to the amount of Leonard’s final payment. The reasonable inference is that the obligation so acknowledged was the one to perform plaintiff’s promise to Ficken to pay him for his work.

In June 1960 plaintiff paid Ficken $2683. This was accomplished by means of a check in which Walters was also named as a payee. It could scarcely be contended that this payment was a gratuity to Ficken. The check was for the precise amount of the statement against Walters which Ficken had delivered to plaintiff in December 1959 at the request of Hartman. If there were no contract between plaintiff and defendant such as defendant asserts, why did plaintiff make such a payment to defendant? Plaintiff has not even contended that there was an agreement with Ficken — or with Walters — that Ficken was to be paid an amount equal to what was left over after the Walters indebtedness to plaintiff and to CIT had been paid. Much less has plaintiff contended that there was any agreement that Ficken was to be paid something left over after Walters’ debt for fuel and oil had been paid. If the document of consent and waiver of lien of November 25, 1959 was not given by defendant to plaintiff in exchange for some commitment by plaintiff, then plaintiff would have owed no duty to defendant. Hence any balance in its hands was assets of Walters; in the absence of the asserted contract plaintiff’s payment to defendant would have been a gratuitous gesture — a voluntary payment of a debt owed by a third person without any obligation of the payor to make such payment. If there were no contractual obligation of plaintiff to pay the defendant, why wasn’t payment of the $2683 made to Walters? It must be concluded that the $2683 payment was made in part performance of the contract asserted by defendant.

Ficken’s consent and waiver are established facts. Of the greatest significance is the fact that plaintiff has attempted no explanation of defendant’s conduct in executing the document embodying that consent and waiver. We are then presented with the anomalous situation of a person experienced in the business of excavating, grading and construction and knowledgeable in the area of mechanics’ lien surrendering an important legal position and agreeing to a manipulation of his ob-ligor’s assets without any showing of his motivation therefor except such as appears in his own story of the circumstances. If defendant’s explanation is to be ignored then all that is left is the presence of a freely conferred gratuity, leaving the donor without legal remedy except perhaps for the personal liability of his obligor who has alienated his principal asset. One cannot ascribe such a donative intent to the defendant.

On the initial question of whether or not a contract was formed in the terms alleged by defendant, the deposit of the $3500 check by defendant with plaintiff has little if any evidentiary value. Testimony seems to well establish that the deposit of the check was made solely for the purpose of evidencing that some substantial balance of account was then owed to plaintiff. The amount was arbitrarily fixed by plaintiff and there is no evidence that such amount then approximated the real balance. The check was delivered at a time when defendant had furnished only one month’s performance of his contract with Walters and had been paid nothing. In any event it was furnished solely upon Hartman’s representation that he then needed it to balance his books and that it would not be cashed.

We attach no significance to the fact that defendant Ficken endeavored to use the services of a collecting agency in trying to locate Walters and to collect from him. Lacking payment by plaintiff, after lengthy delays, it would seem to be quite the natural thing to try to collect from any other person who might also be liable for the compensation owing to defendant. Defendant has not contended that a novation was effected by virtue of the contract made by plaintiff with Ficken.

We find that defendant has sustained the burden of proving the contract with plaintiff alleged in his counter-claim and that the condition upon plaintiff’s duty to perform its promise therein has been satis-filed by defendant’s full performance of his contract with Walters.

Statute of Frauds

When Hartman advised, defendant that plaintiff desired to collect from Leonard and Company the payments that would become due Walters, he asked if it would make any difference to defendant that he got paid by plaintiff. Defendant expressed his assent “to let them collect it if they would pay me”, to which Hartman agreed. Thereafter the document of consent and waiver of lien was presented to defendant, signed by defendant and returned to plaintiff. There is thus presented a simple situation of offer and acceptance, where upon acceptance, a typical unilateral contract eventuates. Plaintiff proposed to defendant to pay defendant — and of course “pay” here means the payment of what would become due defendant under his contract with Walters — if defendant would consent to Walters’ assignment and would waive his lien. Defendant accepted plaintiff’s proposal by execution and delivery of the document prepared by plaintiff. Thus we find the elements of a unilateral contract — a promise on one side (the offer) and offeree’s acceptance by the performance of the acts specified in the offer. At this point a contract comes into existence — a contract involving only one promise (made by the offeror) for which the promisee has furnished full consideration by doing the acts requested. Nothing more was necessary to the formation of contract. Defendant’s performance under his contract with Walters was of course a condition upon plaintiff’s duty to perform its promise.

Assuming that plaintiff has raised the question of the Statute of Frauds by appropriate procedure (but see George Gifford Company v. Willman, 187 Mo.App. 29, 173 S.W. 53; Heath v. Beck, Mo.App., 231 S.W. 657), it will find little protective cover in the provisions of the Statute.

For well over two hundred years judicial legislation with respect to the application of the Statute has been one of the accepted facts of legal life. In spite of the seemingly clear words — “to charge any person upon any special promise to answer for the debt, default or miscarriage of another person” —the reports are rife with holdings that particular promises to perform obligations initially incumbent upon another do not fall within the operation of the Statute. By 1800 the judicially declared exceptions to the application of the Statute had become so numerous that the great American commentator, Chancellor Kent, treated such exceptions at length and sought to classify them. The leading treatise writers of our own times (Williston on Contracts, 3rd ed., §§ 448-486; Corbin on Contracts, §§ 346-395) bear witness to the great proliferation of cases dealing with the non-application of the Statute and to the numerous and variant bases upon which non-application is made to rest.

Elaborating upon the base upon which courts generally have founded those holdings which declare the Statute not applicable, Corbin informs us that “The ‘leading object’ rule in its various forms has been subjected to more or less criticism. The best answer to this criticism is to be found in the vast number of cases in which it has been applied.” What is the “leading object” rule? The Supreme Court of the United States has furnished one form of that rule by saying: “ * * * whenever the main purpose or object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the Statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.” Emerson v. Slater, 22 How. 28, 16 L.Ed. 360.

In 1878, pursuing the theme of the “leading object”, this court in Walther v. Merrell, 6 Mo.App. 370, viewed approvingly the following rule adopted by Massachusetts courts although there was no occasion to apply it in the Walther case:

“That where the main object of the promise is a benefit accruing directly to the promisor, and which he did not before enjoy, and the promise to pay the debt of another is a mere incident, then the accidental or incidental fact that the promise includes the answering for the debt of another will not bring it within the statute; but where the main object is to obtain the release of the person or property of the debtor, or other forbearance or other benefit to him, then it is within the statute, though a new consideration moves directly to the prom-isor.”

In the plethora of cases which has considered the applicability or non-applicability of the Statute, one finds the constantly reiterated differentiation between “original promise” and “collateral promise”. Exact definition of those terms is generally lacking and the use of one or the other announces a result rather than a reason for decision. When the promise is held to be a collateral one that means that the Statute applies; if an original promise, the prom-isor’s contractual commitment falls without the operation of the Statute, It may not be too lacking in precision to say that if the primary concern of the promisor is to aid the third party debtor his promise will be denominated “collateral”; if the prom-isor enters upon his engagement primarily to secure some benefit to himself his promise is “original”. In Moore v. McIlaney, 191 Mo.App. 686, 178 S.W. 258, 261, this Court gave substance to the concepts of “original” and “collateral”:

“Where the agreement is essentially an original undertaking on the part of the promisor to pay a debt which he makes his own, as distinguished from a collateral promise to answer for the debt of another, the contract is not invalidated by the statute. * * * And, though there is some conflict and confusion in the cases treating of the precise question, there is ample authority in support of the doctrine that a direct and unqualified promise to pay the debt of another, though the primary debt still subsists [our emphasis], is to be regarded as original in character and unaffected by the statute, when the promise is founded upon a new and independent consideration moving to the promisor and beneficial to him, and which is the motive therefor. * * * where the promise is in terms an absolute promise to pay the debt, and the new consideration is one of benefit to the promisor, which is the motive for the making thereof, it seems that the case may properly be held to be taken out of the operation of the statute. In such event the undertaking is independent in character, and founded upon the special benefits accruing thereby to the promisor. This is the doctrine of Nelson v. Boynton, 3 Metc. (Mass.) 396, loc. cit. 402, 37 Am.Dec. 148, where the rule derived from the earlier cases was stated by Chief Justice Shaw. It was adopted by this court in the early case of Walther v. Merrell, 6 Mo.App. 370, in an opinion by Bakewell, J.”

The application of the principles stated in Moore v. McHaney, supra, may upon occasion encounter considerable difficulty in the weighing of evidence as to the promisor’s motive and purpose. There is no such difficulty in the present case. Plaintiff’s own evidence makes it perfectly clear that, in making the arrangement with defendant Ficken, its prime purpose was to procure payment of Walters’ indebtedness to itself and to its associated creditor CIT. If it had any concern for the welfare of Walters that concern was secondary. Its promise to Ficken was made for the purpose of procuring further security for debts owed to itself and to CIT and for the purpose of facilitating the liquidation of such debts.

We do not find apposite plaintiff’s cited cases, Frostwood Drugs, Inc. v. Fisher & Frichtel Construction Company, Mo., 352 S.W.2d 694 and Kliethermes Motor Co. v. Cole Motor Service, Inc., Mo.App., 119 S.W.2d 84. Obviously the Court of Appeals in the latter case did not have before it the issue which we have last discussed.

We find that plaintiff’s promise to Ficken did not fall within the operation of the Statute of Frauds.

Finding that defendant has established the contract as alleged in his counter-claim, we proceed to a computation of the respective accounts. Upon an inspection of the statements rendered by defendant (Defendant’s Exhibit 5; Plaintiff’s Exhibit F), it will be found that included therein are certain items which, under the evidence before us, cannot be attributed definitely to the earth moving and grading job at Fen-ton which defendant contracted to perform. Those items are:

Pick up and return Sheepfoot
Roller $30.00
Pick up Roadpipe with float 10.00
Pick up and return Scoop to Valley Park 25.00
Use float to move Dave’s Tractor 10.00
Gravel 174.25

for a total of $249.25. When this amount is deducted from the total charges which can be definitely ascribed to the Fenton job, a balance of $7170.00 is shown. Deducting from the latter figure the $2683 which was paid to defendant, a balance of $4487.00 remains unpaid.

There is no evidence in the record relating to the time when payments from plaintiff to defendant were to be made under the contract asserted in the counterclaim. Neither is there any evidence as to the times when Leonard and Company were to make payments to Walters under their underlying contract. However there is testimony that the engineers for Leonard and Company made periodic surveys of the work done on the job, that is, they took what are referred to as “cross-sections” for the purpose of ascertaining what yardage had been moved since the last previous survey. Defendant testified that he “expected” to get paid when cross-sections were taken and the yardage established; then “we expected to make a draw”. Accordingly, the precise times when plaintiff should have paid defendant are left indefinite. In such a situation the obligor’s duty of immediate performance arises at reasonable times. See Restatement of Contracts, § 32, Comment c, illustrations 4 and 5. Under the circumstances found in this case, we deem the balance of defendant’s account for work performed to be due not later than the time when final payment was made by Leonard and Company to plaintiff and Walters. Defendant had completed his work twenty days before the date of that final payment.

INTEREST CHARGES

Plaintiff’s permanent records (Exhibit A) show a balance of $4199.52 owing by defendant on December 20, 1960. To this record plaintiff added an interest charge of $283.93 on January 12, 1961. A further interest charge of $345.79 was entered in the record as of May 15, 1962. If the interest charges be ignored it is plain that the balance owed by defendant was $4199.52 minus a minor payment of $11.71 on account, or a net of $4187.81. We are of opinion that the interest charge of $345.79 must be wholly eliminated and that the charge of $283.93 must be reduced.

Plaintiff’s exhibit shows that the interest charge of $345.79 was for the period January 1, 1961 to May 15, 1962, inclusive. We have found that the full amount of defendant’s compensation should have been paid not later than June 4, 1960. If he had been so paid the amount thereof would have exceeded the amount owed to plaintiff on the open account, there would have been a set-off of the whole of plaintiff’s account and accordingly no interest could have accrued for any subsequent period.

Plaintiff’s interest charge of $283.93 was for the year 1960. Plaintiff’s permanent record (Exhibit A) shows that according to its own computation the balances owed by defendant at the end of each month were as follows:

End of January 1960.$5376.61
February 1960. 5555.20
March 1960. 5828.65
April 1960. 5828.65
May I960.'..6110.33.

As defendant’s full compensation should have been paid by June 4, 1960, we compute interest on the above amounts at the rate of six per cent per annum for the months above specified plus four days and find that such interest amounts to $147.56. This method of computation is that which is most favorable to plaintiff. Perhaps defendant should have been paid some portion of his total compensation at some time or times prior to June 4, 1960, but in view of the absence of a contract term specifying the times of payment we must content ourselves by finding that the whole of such compensation should have been paid not later than June 4, 1960. When the above-named interest is added to the debit balance of $4187.81, we find that the defendant owed an overall total of $4335.37, an amount more than offset by the balance of $4487 owed by plaintiff to defendant as of June 4, 1960.

We find that on July 6, 1966, the date of the circuit court judgment, the sum of $151.63 owing to defendant had been past due since June 4, 1960. Interest thereon at the rate of six per cent per annum totals $54.59. We find that defendant should have had judgment against plaintiff for $206.22 on July 6, 1966.

The judgment is reversed and the cause is remanded to the Circuit Court of Jefferson County with directions to enter judgment for defendant against plaintiff for $206.22 as of July 6, 1966.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment is reversed and the cause is remanded to the Circuit Court of Jefferson County with directions to enter judgment for defendant against plaintiff for $206.22 as of July 6, 1966.

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

       Defendant testified that he paid all his own bills for oil and fuel used at the Fenton job.

      . Except for the injection of the lien waiver in the signed document it might be said that a bilateral contract was formed when Hartman and defendant had their conversation and that defendant fully performed his engagement therein when he signed and delivered the document. In any event nothing further was necessary to contract formation. If the arrangement were bilateral, defendant fully performed and thereafter the only outstanding obligation would be perform-anee by plaintiff of the terms of Ms promise.

      . We dea' here only with that part of the Statute relating to a promise to answer for the debt, default or miscarriage of another.

      . Restatement of the Law of Contracts, § 184, so provides by stating: “Where the consideration for a promise that all or part of a preexisting duty of a third person to the promisee shall be satisfied is in fact or apparently desired by the promisor mainly for his own pecuniary or business advantage, rather than in order to benefit the third person, the promise is not within Class II of § 178 [“Contracts with an obligee to answer for him for the debt, default or miscarriage of his obligor”], unless the consideration is merely a premium for the prom-isor’s insurance that the duty shall be discharged.” For a recognized and significant example of original promise, see Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92, 95 (decided on other grounds).

      . Since defendant’s entire performance was given under a contract calling for a definite rate of $14 per hour, we fail to see the relevance of plaintiff’s contention that defendant did not show the reasonable value of the work performed. However there was testimony that defendant’s normal charge for a machine of the type used would be $15 to $16 per hour. A part of plaintiff’s Exhibit A shows that when defendant rented the machines from plaintiff prior to his purchase of same the rental charge was $15 per hour. No question has been raised as to the accuracy of defendant’s statement of the number of hours which his machines actually worked.

      . In the interim there were no charges made to the accourt which were not shortly paid.