author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Thelma Fern GRANT, Appellant.
    No. 49735.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      R. B. Kirwan, Kansas City, for appellant.
    Thomas F. Eagleton, At-ty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

On January 21, 1962, Homer Oral Taylor, a tavern operator, was fatally shot with a shotgun held in the hands of defendant, Thelma Fern Grant,, in an apartment ad'jacent to or adjoining the tavern operated by Taylor, in Jackson County, Missouri, in which Taylor and defendant, not married to each other, then and had lived together more than two years. Defendant was charged by an information filed in the Circuit Court of Jackson County with murder in the first degree. When the case came on for trial, at which defendant and her counsel (who also represents her on this appeal) were present, counsel for the State, in open court, reduced the charge against defendant to murder in the second degree. Upon trial, at which defendant testified the shotgun was accidentally discharged, the jury returned a verdict finding her guilty of murder in the second degree and assessing her punishment at ten years imprisonment in the State Penitentiary. Her motion for new trial thereafter timely filed was overruled, due allocution was granted and the trial court adjudged her guilty and sentenced her to imprisonment in the Women’s Reformatory at Tipton for a term of ten years in accordance with the verdict. Certain of the errors urged on appeal neces-sítate a detailed statement of the evidence.

The evidence adduced in behalf of the State supports a finding of these facts: At 7:12 p. m. on the day of the shooting, defendant called the Grandview Police Department and talked with the Police Dispatcher. After identifying herself, she said, “I killed Homer, I mean it this time.” He asked her where she was. She repeated the foregoing statement. He again asked for her address and she said, “You know where I am, come on down.” He asked if she was in the apartment or in the tavern and she said she was in the apartment. He knew where it was and sent Police Officer Couch to answer the call, who went to the apartment occupied by Homer and defendant, knocked at the locked kitchen door and called to defendant, who admitted him into the kitchen. She wore a robe over a nightgown. Asked “what was the matter”, defendant said she had “finally killed Homer.” Asked where Homer’s body was, she led Officer Couch through the living room, where she pointed to a shotgun lying on a divan. They then went through a narrow hall into the bedroom, where he saw Homer’s body, covered with a blanket up to the base of his skull, lying upon a bed. He pulled the blanket covering Homer’s body down below his shoulder. Homer was lying on his left side, his head resting upon his left arm, which was extended outward and flexed upward, resting on a pillow. The discharge from the shotgun had entered the right side of the base of his neck above the collarbone. There had been a heavy flow of blood from the wound across the neck and chest to the bed.

Examination of the shotgun showed it to be unloaded. It was a .16 gauge gun, so designed that when a shell was placed in the barrel the gun was automatically cocked and could be uncocked only by pulling the trigger or by use of a safety device forward of the trigger housing. Lying upon the floor nine feet from the point where the shotgun blast had entered Homer’s neck, Officer Couch found a spent shotgun shell.

Defendant told Officer Couch at that time that she and Homer had an argument earlier in the evening during which Homer had pointed the gun at her; that thereafter she came around from the hallway into the bedroom and pointed the gun around the corner; that Homer said to her, “Are you going to kill me before I kill you ?”; that she discharged the shotgun while standing about nine feet from where Homer’s head lay on the pillow of the bed; and that she knew Homer always kept the shotgun loaded. About 20 minutes after Couch arrived at the scene, other officers arrived in answer to a radio call made by him from his police car after he had placed handcuffs on defendant.

Grandview Police Officer Sullivan was one of those who came to the scene in answer to Couch’s call. He saw and talked with defendant as he and she sat at the kitchen table, during which time Couch was attending to the removal of Homer’s body. Defendant told Sullivan she got the shotgun from behind the TV set in the southeast corner of the living room; that she stood in the hall between the living room and bedroom and pointed the gun at Homer. Homer looked up, saw the gun pointed at him and said, “Oh, my God, no”; and that she then shot him as she stood about nine feet from him. Sullivan did not notice that she had been drinking. She did not say to him that the gun was accidentally discharged. She made no written statement to him; he only took a few notes.

James Browning, a detective attached to the Jackson County Police Patrol, went to the Grandview police station at about ten o’clock that night, to which defendant had been taken. He took her to the headquarters of the Sheriff’s Patrol. On the next morning, she made a statement to him which was transcribed on a typewriter by a girl stenographer in that office as Browning asked defendant questions and she answered them. Defendant read the thus transcribed statement and signed it. That statement, the voluntariness of which is not challenged, was admitted in evidence. It states, in material substance, that defendant was born on. December 31, 1926, and then proceeds:

“About noon Hómer and I started drinking, this was January 21, 1962, and some man come over from the club and brought a fifth of whiskey. We went over to the club and started drinking some more. Homer and this man were gambling in the back room. I was sitting out in the front room and Homer got mad because some man spoke to me. There were several people in the club, this club is the Elks club next door to Homer’s tavern. Homer grabbed me by the arm and we went home and he started hitting me and cussing me, I was drunk too and I went in and laid on the bed and I thought Homer would let me alone, first he came in and grabbed me out of bed and said no one else was going to have me. I never thought any more about it and he came in with that shotgun and he pointed the gun at me and I didn’t think it was loaded so I told Homer to leave me alone. Homer gets that way when he is drinking and I got up off the bed and swished past him into the kitchen to fix him a sandwich and I thought he would go in and be quiet while I fixed it as he usually does and then he started screaming and calling me names and kept it up, I grabbed the gun off the divan and I was just going to do like he did and I swung the gun around the corner and it went off, I dropped the gun and looked around and picked up the empty shell or started to and I was so scared I went to the phone and called the police. I was afraid to look at Homer because I hadn’t known the gun was loaded and it shocked me so. I went to the front door and stayed there until the police arrived.
“Q. Is this all you can remember? A. Yes.
* * * *
“Q. You two fought before? A. Y es, we always fought.
* * * *
“Q. Are you pretty good with a shotgun? A. Yes, at trap shooting and I didn’t aim the gun at Homer, I just swung the gun .around and it went off. I guess I automatically had my finger on the trigger, when I picked the gun up. In none of our arguments had we ever talked or used a gun to threaten each other.”

On that day, Officer Browning also took the coverings from the bed upon which Homer’s body was found and a number of loaded shotgun shells found in the apartment and tavern, all of which were of the same brand, gauge and shot size as the spent shell found on the apartment floor. The blanket taken from that bed showed the hole and dark spots made on it by the shotgun blast. The hole, dark spots and blood were at the top part of it, where it covered the right base of his neck as he lay with his head on the pillow when he was shot. Browning made seven test shots by the use of the shotgun shells taken from the premises and fired from the shotgun with which Homer had been shot. These test shots were fired into cloth from recorded distances, ranging from a distance of nine feet to two inches from the gun muzzle to the point where the shot entered the cloth. The shot pattern found on the blanket and the test patterns made on the cloth were produced in court. A duly qualified expert attached to the Kansas City, Missouri, Police Department, Supervisor of Crime Detection Laboratory, testified, after examination of the blanket and the test shot patterns, that in his opinion the shotgun blast which killed Homer was fired when the muzzle of the shotgun was two inches from Homer’s neck.

The evidence adduced in behalf of defendant consisted only of her testimony. Her version of the facts was: Shortly after noon on the day of the shooting, a male friend of Homer, whose name she could not remember, came to the apartment. She, Homer and Homer’s friend each had two drinks. She and they then went to a nearby club. Homer and his friend gambled in the back room while she sat in the front room and had two more drinks. A man, whom she knew but whose name she could not recall, there spoke to her. Homer came from the back room, took her by the arm and they went home. Homer there started pushing her around a little; neither he nor she was really mad. Homer kept “lipping off”, telling her that the man was flirting with her. She undressed, intending to watch television. Homer came into the room with this gun. She was lying on the bed. He said, “If I can’t have you, nobody else will”, but said it “like he was cutting up”, “not exactly” mad. She got up from the bed to go to the kitchen to fix him some food. As she went into the living room, she pushed the gun over and told him to “lay down” and he did. Usually when he “lipped off” she would throw water in his face, but when she saw the gun, as she went toward the kitchen, she picked it up, pointed it toward the bed — did not know how far away from Homer she was — and it went off. She looked down at the gun, threw it down and the shell fell out. She still couldn’t believe it went off, started to pick the shell up from the floor, was afraid to touch it, and called the police. She did not know what caused the gun to go off, but did know that she had hit her elbow on something, her arm has been sore ever since. Homer did not say, “Oh, my God, don’t kill me"; neither did she say to the policeman, “I shot Homer like I said I was going to.” She did not think she made any statement to Officer Couch that she intentionally shot Homer. She did not intend to kill him. “That is the silliest thing I have ever done in my life.” She guessed she must have had her finger on the trigger and did not believe the gun was loaded, did not have the gun to her shoulder; and she was not drunk.

We now turn to what counsel for defendant designates as “Appellant’s State- - ment, Abstract of the Record, Brief and Argument.” It consists of a “Statement”, which summarizes the proceedings in this case from the filing of the information to and including the filing of an approved transcript; a “Resume of Testimony”, consisting of slightly more than one page; all of the eleven instructions under which the case was submitted to the jury; a verbatim copy of the motion for new trial; and then sets forth under the heading “Suggestions”, consisting of approximately four pages, what we will treat as defendant’s “Brief”. There, in argumentative form, is what amounts to an assertion that the trial court prejudicially erred in giving Instructions Nos. 2 and 4, which submitted a finding of defendant’s guilt of manslaughter in the killing of Homer under such circumstances as not to constitute excusable or justifiable homicide. Interwoven with that assertion of error, we also find the reasoning upon which the error asserted is predicated. Consequently, we will consider the errors thus “assigned”. (We note, however, that these “Suggestions” make no mention of or reference to any of the subject matter of the other assignments of error alleged in the motion for new trial. They, therefore, are deemed waived or abandoned under the provisions of S.Ct. Cr.Rule 28.02, V.A.M.R., except, of course, that as required by said rule, we will, if it becomes necessary, review the portions of the record in said rule specified as requiring no assignment of error as a prerequisite to their review.)

Instruction No. 2, to the extent here material, reads:

“ ‘Manslaughter’ is the killing of a human being not herein declared to be murder or excusable or justifiable homicide, and the Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that * * * the defendant * * * wilfully and feloniously did make an assault upon one Homer Oral Taylor with a dangerous and deadly weapon, to-wit: a 16 gauge shotgun loaded with metal pellets and shot and killed the said Homer Oral Taylor, without malice and without premeditation, as these terms are herein before explained and under such circumstances that' it i¿ not excusable or justifiable homicide, then you will find the defendant guilty of Manslaughter and so find in your verdict.
“And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Manslaughter.
* * * *
“ ‘Justifiable Homicide’ is the killing of another in the lawful defense of one’s ' person.
“ ‘Excusable Homicide’ is the accidental killing of another.”
Instruction No. 3 reads:
“The Court instructs the jury that .homicide shall be deemed excusable when committed by accident or misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution arid without unlawful intent.
“The term ‘accident’ means an event that takes place without one’s foresight or expectation, an undesigned, sudden and unexpected event; an undesigned and unforeseen occurrence of an af-flictive or unfortunate character; a mishap resulting in injury to a person or damage to a thing; a casualty.”

In the “Suggestions” filed in behalf of defendant, our attention is first directed to the fact that Instruction No. 2 authorizes acquittal of defendant of manslaughter only if the killing was (1) justifiable (not here contended) or (2) excusable, that is, accidental. Our attention is next directed to (but no complaint is made of) the fact that instruction No. 2 did not in words hypothe-' •size any finding of defendant’s guilt of homicide by an act of culpable negligence, which, as seen in footriote, also constitutes homicide when supported by competent evidence. It seems clear, however, that the definition of “excusable homicide”, as set forth in Instruction No. 3, sufficiently embodied accidental killing of another such as would constitute excusable homicide, when it therein declared that “homicide shall be deemed excusable when committed by accident or misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution and without unlawful intent.”'

The “Suggestions” next direct our attention to a portion of the written statement made by defendant, as follows: “I grabbed the gun off the divan and I was just going to do like he did and I swung the gun around the' corner and it went off.” The contention is then made, as we understand it, that when the State introduced in evidence defendant’s written statement, which contained the portion stating in effect that defendant did not intentionally fire the gun, the State thereby “disproved” any wilful or intentional killing of Homer by defendant; that the State was bound by that evidence; and that, perforce thereof, the State could not be permitted to ignore its own theory, which, it is contended, Instruction No. 2 did by submitting a finding that defendant “wil-fullv and feloniously did make an assault upon [Homer] with a dangerous and deadly weapon”, etc.; and that the sole ground upon which defendant’s guilt of manslaughter could be lawfully predicated was an act of culpable negligence. (Although defendant does not make the point, it would also follow that if the State is bound by the foregoing portion of defendant’s written statement, then the verdict and judgment finding her guilty of murder in the second degree could not stand.)

The contention that the State became bound by the above quoted portion of the written statement made by defendant when it introduced the entire statement in evidence is without merit. The statement was introduced because of the admissions made therein as to when, where and how and under what circumstances Homer was killed. When the statement was so introduced, defendant was, of course, entitled to have any admission therein made considered in context with the remainder of her statement, so that the jury could consider each and every portion thereof in the light of the whole; and it was the province of the jury to believe or disbelieve the whole or any part of it. But, inasmuch as the State adduced other evidence (by way of extrajudicial oral admissions made by defendant to the police officers on the night of the shooting) sufficient to submit the issue of defendant’s guilt of either murder in the second degree or manslaughter, as the jury might find the facts to warrant, the State was not bound by the portions thereof favorable to defendant. Kiburz v. Loc-Wood Boat & Motors, Inc., Mo., 356 S.W.2d 882, 887 [6].

Defendant’s final “assignment” is that Instruction No. 4 was prejudicially erroneous. That instruction (the allegedly erroneous portions of which we italicize) was:

“The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that Homer Oral Taylor, came to his death by accident, and that there is a reasonable doubt that he came to his death by accident, it is the duty of the jury to give the defendant the benefit of such doubt and find her not guilty.
“The burden of proof is not upon the defendant to prove that Homer Oral Taylor came to his death by accident, but the burden of proof is upon the State to show by credible evidence beyond a reasonable doubt, that said shooting was intentionally done by the defendant, and that Homer Oral Taylor did not come to his death by accident.”

Numerous readings of the first paragraph of that instruction leave no doubt that it placed upon the jury the duty of reaching an impossible finding of fact as a prerequisite to the acquittal of defendant on grounds that she accidentally shot him to death. Under the evidence in this case, it is hardly conceivable that the jury would have entertained any reasonable doubt of defendant's guilt of either murder in the second degree or manslaughter, as it should find the evidence to warrant, until defendant had testified that the shotgun was accidentally discharged as she turned :to point it toward Homer to frighten him. If the jury ..read the first paragraph of Instruction 4, as was its sworn duty, the first clause thereof required it to find beyond a reasonable doubt that she had truthfully testified in that respect. When, however, the jury read the conjunctive “and” in connection with the second clause, “that there is a reasonable doubt that [Homer] came to his death by accident”, it was confronted with an impossibility, viz.: finding beyond a reasonable doubt that the shooting was accidental and at the same time finding that there was a reasonable doubt that it was accidental. It was, therefore, only when the jury believed these self-destructive findings that it was further directed in the first paragraph of the instruction to acquit defendant. Did the second (and correctly worded) paragraph serve to erase the error of the first? Or, rather did it, when read in conjunction with the first paragraph, the more tend to confound the jury? The two paragraphs cannot be reconciled.

No person other than defendant knows whether she intentionally or unintentionally shot Homer. It is possible that, after hearing her testimony in that regard and considering it in the light of all of the other facts and circumstances shown in evidence, the jury may have entertained a reasonable doubt that she intentionally shot Homer. It is here noted that the court also gave the jury the many times approved instruction, in substance, that unless the jury believed beyond a reasonable doubt the facts hypothesized in the instructions submitting the issue of defendant’s guilt of murder in the second degree or manslaughter, it should acquit defendant. But, when the court saw fit to give the jury a special instruction as to the proof required to authorize acquittal of defendant, on grounds she accidentally shot Homer, that instruction should have advised the jury unequivocally that, if it did have such a doubt, it should acquit defendant. The jury was not so advised. We cannot with conviction say that the instruction, read in its entirety, was not prejudicial.

The judgment is reversed and the cause remanded.

All concur.

      . ' Manslaughter is defined, § 559.070 RSMo 1959, V.A.M.S., as “Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, * *
      It should be here noted that the accidental killing of another does not constitute excusable homicide within the meaning of § 559.050 (defining excusable homicide) if perpetrated in the commission of an unlawful or culpably negligent act. State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 93 [19-22]; State v. Hinojosa, Mo., 242 S.W.2d 1, 10 [21].


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    FOUR-THREE-O-SIX DUNCAN CORPORATION, Respondent, v. SECURITY TRUST COMPANY, Appellant.
    No. 50047.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      Armstrong, Teasdale, Roos, Kramer & Vaughan, Bourne Bean, Walter M. Clark, Donald U. Beimdiek, St. Louis, attorneys for defendant-appellant.
    Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, attorneys for respondent.
   COIL, Commissioner.

Respondent, plaintiff below, filed a suit to restrain appellant Security Trust Company (hereinafter sometimes called Bank) from selling and to regain possession of certain securities which it had pledged as collateral for the performance by respondent of the 'provisions of a certain guaranty agreement. Bank has appealed' from the trial chancellor’s judgment ordering it to surrender to respondent the described securities. As will appear from the facts hereinafter stated, jurisdiction is in this court because the amount in dispute exceeds $15,000.

In our de novo review of this equity suit, we weigh the evidence and arrive at our own conclusions as to its weight, deferring to the trial chancellor’s findings of fact where proper.

F. W. Strecker, Jr., owned and controlled respondent corporation and was the chief executive officer of F. W. Strecker Transfer Company, Strecker Motor Service, Inc., and Strecker Handling Company, hereinafter sometimes called the Strecker companies. Those companies were tenants in a building located at 4306 Duncan in St. Louis which was owned by respondent Four-Three-O-Six Duncan Corporation (hereinafter sometimes called Duncan Corporation). In 1959 Mr. Strecker and the Strecker companies were indebted to the Bank in the approximate amount of $500,-000. Duncan Corporation was organized in May 1959 for the purpose of taking title to 4306 Duncan Avenue and the Bank loaned Duncan Corporation the money with which to purchase that real estate and took a first deed of trust on the property to secure a note evidencing that indebtedness. In February 1960 Mr. Strecker obtained a loan elsewhere and out of the proceeds thereof paid the Bank the amount of its prior loan. At that time Mr. Strecker and the Strecker companies were still indebted to Bank. On February 18, F. W. Strecker, Jr., F. W. Strecker Transfer Company, Strecker Motor Service, Inc., Strecker Handling Company, and Four-Three-O-Six Duncan Corporation (respondent), as parties of the first part, and the Bank (then the Security-Mutual Bank & Trust Company), as party of the second part, executed an instrument called a “Stand-By Agreement” under the terms and provisions of which it was recited that the first parties were indebted to second party either as principal debtors-or as guarantors; that the indebtedness was-

.overdue; that first parties desired to modify the terms as to the overdue indebtedness and, consequently, first parties agreed that Mr. Strecker would pledge his entire stock interest in Duncan Corporation with second party (under the same terms as certain other stock was held under a prior agreement, the details of which are unimportant here) ; that beginning February 22, 1960, they would pay to second party $1,000 each week to be applied on the. principal indebtedness of first parties, and second party agreed that it would not call any of the present indebtedness of any of the first parties because of its delinquency so long as the 'weekly payments were made. It was further 'agreed that in the event of default in the weekly, payments, second party had the option tojerminate the stand-by agree,ment and, in any. event, second party, in its .sole discretion, could cancel that agreement with or without cause on 90-days’ notice to first parties of its, intentipn to so do. - ■.

On‘February 19, I960, Duncan Corporation; by’F.-W. Strecker, Jr., as its president, executed -a continuing guaranty agreement by which it guaranteed to Bank the prompt payment, as they'might mature, of any and all loans made or which might-be made to, or of any and all indebtedness then due or which might thereafter be due from F. W. Strecker, Jr., F. W. Strecker Transfer Company, Strecker Motor Service, Inc., and Strecker Handling Company. As collateral security for the performance of the obligations of that agreement and to secure the payment of any' other liabilities, present or future, direct or indirect, of the Duncan Corporation to Bank, Duncan Corporation pledged collateral consisting of three promissory notes in the total face amount of $115,000-and a note for $350,000 secured by a second deed of trust on the Duncan Avenue real estate. Paragraph 6 of the continuing guaranty agreement provided as fol-lows:

“6. Upon the maturity of any note the payment of. which is hereby guaranteed or upon the maturity of any indebtedness of the undersigned, the Bank may, without no.tice or demand, forthwith apply any balances of any deposits of the undersigned with said Bank toward the payment of such note and of any or all of the liabilities of the undersigned to said Bank, and may likewise forthwith realize upon any property of the undersigned in its posses (s) ion and receive the proceeds therefrom, and may also, without demand, advertisement or notice, sell at public or private sale, or at any exchange or broker’s board, at such prices as it may deem, best, and either for cash or on credit, or for future delivery, any part or all securities or property of any kind held by it as collateral security or on which it may have a lien for the indebtedness of the undersigned as hereinabove provided, and with the right in said Bank at any such sale, public or private, _ to purchase the whole or any part of such securities of property so sold, free irom any right or equity of redemption in the undersigned, any such right or equity of redemption being hereby expressly waived by the undersigned.”

In November or December 1960, Mr. ■ Strecker informed, officers of the Bank that he desired to increase the amount-of the present loan on the Duncan Avenue realty (not made or held by Bank) and inquired whether, in the event a new deed of trust and note were executed, such new deed of trust would have superiority over Bank’s second deed of trust. Apparently Bank agreed to cooperate with the understanding that some portion of the cash received by Duncan Corporation as a result of the new loan would be paid Bank to be applied against existing indebtedness of the Strecker companies. Mr. Strecker proceeded under the arrangement and was able to obtain an additional $50,000 or $55,000 on a new first deed of trust and Bank, in accordance with its agreement, took a new second deed of trust securing a new $350,000 note, both dated January 10, 1961.

On that same day, January 10, 1961, a .new guaranty agreement (in the same form and containing the same provisions' as the prior one) was executed by Duncan Corporation, by F. W. Strecker, Jr., as president, in which the same three notes which had been pledged by the February 1960 guaranty agreement were again pledged as collateral and the new $350,000 note and second deed of trust securing it replaced the February 1960 $350,000 note and deed of trust as collateral. On the same day, January 10, 1961, the parties to the February 18, 1960, stand-by agreement executed what they called “Supplement To Stand-By Agreement Dated February 18, 1960,” in which new agreement it was recited that the prior stand-by agreement was attached and made a part of the new agreement; that certain financing had been obtained by one of the parties of the first part (Four-Three-O-Six Duncan Corporation) based upon the expressed “willingness” of Bank to accept a new note and deed of trust to replace the former note and deed of trust which had been lodged with Bank as security for the performance of Duncan Corporation’s prior guaranty agreement; that from the proceeds of the new loan parties of the first part were to pay Bank $20,000 on the Strecker companies’ indebtedness; and that the parties desired to modify the prior stand-by agreement in certain respects. It was therefore agreed that Bank would release the note and deed of trust dated February 19, 1960, held as collateral under the 1960 guaranty agreement and would accept in its stead a new note and second deed of trust dated January 10, 1961; and first parties agreed to forthwith cause to be paid to Bank $20,000 of the proceeds of the new financing to be applied on the first parties’ indebtedness; and the stand-by agreement of February 18, 1960, was modified by providing that Bank could cancel that agreement by giving 10 instead of the formerly required 90-days’ notice of its intention to so do.

Paragraph 4 of said supplement to the stand-by agreement was:

“4. Except as so modified and except for the substitution of the new Note and Second Deed of Trust as collateral security under the Guaranty Agreement of Four-Three-O-Six Duncan Corporation, all of the terms and conditions of said Stand-By Agreement relating to the overdue indebtedness of Parties of the First Part to Party of the Second Part shall remain unchanged and in full force and effect, and said Stand-By Agreement is ratified and affirmed in all respects.”

By the first part of 1962, Mr. Strecker and the Strecker companies were in default in the required $1,000 weekly payments and, by April 1962 they owed the Bank in excess of $300,000. On April 25 the Bank mailed the following letter addressed to F. W. Strecker, Jr., F. W. Strecker Transfer Co., Strecker Motor Service, Inc., and Strecker Handling Company:

“Pursuant to the terms of Stand-By-Agreement, dated February 18, 1960, and a Supplement thereto, dated January 10, 1961, executed by F. W. Strecker, Jr., F. W. Strecker Transfer Co., Strecker Motor Service, Inc., Strecker Handling Co., Four-Three-O-Six Duncan Corporation and the Security Mutual Bank & Trust Company, you are hereby given notice of the undersigned’s intention to cancel and terminate said agreements.
“You are further notified that Security Trust Company makes formal demand on you for the payment of any and all indebtedness and obligations, plus interest, owing by you to Security Trust Company, which debts have long been delinquent and overdue and the repayments of which have been in default.”

Appellant’s evidence was that it also mailed to respondent Duncan Corporation the following letter:

“Pursuant to the terms of Stand-By Agreement, dated February 13, 1960, and a Supplement thereto, dated January 10, 1961, executed by F. W. Strecker, Jr., F. W. Strecker Transfer Co., Strecker Motor Service, Inc., Strecker Handling Co., Four-Three-O-Six Duncan Corporation, and the Security-Mutual Bank & Trust Company, you are hereby given notice of the undersigned’s intention to cancel and terminate said agreements.
“You are further notified that Security-Trust Company makes formal demand on you for the payment of the obligations and indebtedness, including interest, which have been guaranteed by you and which have been long delinquent and overdue and the repayments of which have been in default. If payment is not received by Security Trust Company within ten (10) days from the receipt of this letter, foreclosure will be made under your Guarantee Agreement, dated January 10, 1961. We are enclosing a copy of a Notice of Sale of Pledged Securities, which is self-explanatory and which will be duly published.”

Respondent’s evidence was to the effect that the above-quoted letter was never received by it. While it may be of no decisive importance, nevertheless we are of the opinion that the evidence compels the conclusion, and we so find, that F. W. Strecker, Jr., president of respondent corporation, read the above-quoted letter on April 24 when he was called into Bank’s offices to be notified in advance that the letters (one addressed to Strecker and the Strecker companies, the other to the Duncan Corporation) were to be mailed the next day.

The basic premise for the trial chancellor’s judgment ordering Bank to surrender to respondent the collateral heretofore described which had been pledged by Duncan Corporation under its 1961 guaranty agreement, was the first of three declarations of law, which was:

“1. All of the preceding agreements, written and oral, between plaintiff and defendant were merged into the agreement between plaintiff and defendant and others dated January 10, 1961 (Plaintiff’s Exhibit 3).”

In the second declaration the trial chancellor stated that by “its letter of April 25, 1962 (Plaintiff’s Exhibit 1), defendant can-celled and terminated all of such merged agreements.”

Appellant contends the trial court erred in holding that there was a merger of all agreements, including the 1961 guaranty agreement, by reason of or into the supplemental stand-by agreement of January 10, 1961, while respondent, of course, contends that the trial court properly so declared the law and, consequently, corfectly entered the judgment heretofore noted.

It is our view that for the reasons hereinafter stated the evidence does not support the judgment entered by the trial chancellor.

It is entirely clear to us, upon an examination of the documents in evidence and the testimony relating to the circumstances under which those documents were executed, that the stand-by agreement of February 18, 1960, as supplemented on January 10, 1961, and the second guaranty agreement executed by respondent Duncan Corporation on January 10, 1961, were separate and distinct documents intended to accomplish and executed for the purpose of accomplishing different objectives; that the guaranty agreement was not unified with or merged into the stand-by agreement and consequently a cancellation and termination of the stand-by agreement did not cancel or terminate the guaranty agreement. Our review convinces us that the documents, standing alone, require that conclusion and that the testimony in the case supports only that conclusion. Indeed, were it not for the fact that the trial chancellor reached a contrary result and that respondent’s able counsel vigorously insists on the correctness of the judgment entered, we should believe the foregoing statement of facts alone was sufficient to conclusively demonstrate that Bank was entitled to cancel and terminate the stand-by agreement as modified and to proceed under the terms and provisions of the January 1961 guaranty agreement. We shall, nevertheless, examine in detail respondent’s position and the specified reasons therefor as they appear in its brief.

Respondent states: “The facts in the instant record show positively that it was the intention of the parties on January 10, 1961, to enter into a single new agreement between the bank on the one hand, and the 'Parties of the First Part,’ including respondent, on the other, merging all the previous obligations of the parties respecting the maturity of the existing indebtedness of the bank’s principals, and the guaranty and collateralization thereof. This intention appears from several sources.”

To demonstrate that “intention” respondent suggests four sources.

First, that the testimony of Bank’s officers who handled the transactions with Mr. Strecker, the Strecker companies, and Duncan Corporation, demonstrates “the documents signed January 10, 1961, were drawn to effectuate one single oral agreement.” The only documents to which respondent, appellant, Mr. Strecker, and the Strecker companies were parties and which were signed on January 10, 1961, were two, a supplement to the February 18, 1960, standby agreement modifying and incorporating the 1960 agreement, and a new guaranty agreement signed by Duncan Corporation replacing the one signed in 1960. The officers’ testimony to which respondent points was to the effect that the new $350,000 note and the deed of trust securing it, the supplement to the stand-by agreement, and the new guaranty agreement all bore the date of January 10, 1961; that there had been a verbal agreement (prior to the execution of those documents) between the Bank and Mr. Strecker that Duncan Corporation was to pay Bank $20,000 to be applied on the Strecker indebtedness; that the documents had been drawn in advance; that the Bank’s officers probably had told Strecker that he would have to sign some new papers and that the Bank would prepare them; and that the arrangements agreed upon were that a new deed of trust and new note would be executed by Duncan Corporation and deposited with Bank, that a new guaranty agreement would be executed by the Duncan Corporation and that a supplement to the stand-by agreement would be executed. The oral arrangements concerning which the Bank officers testified all became parts of one or the other of the two written agreements signed by the parties on January 10, 1961.

It seems clear to us that the only reasonable conclusion from the foregoing testimony is that in order to accomplish the thing Mr. Strecker suggested and wanted to do, the prior stand-by agreement had to be supplemented and executed by the parties who were signatory to the prior stand-by agreement, and a new guaranty agreement had to be executed by respondent in order to satisfy the Bank. We see nothing in that testimony which indicates or even suggests that the parties intended that the stand-by agreement as supplemented included the new guaranty agreement so that a termination of the stand-by agreement as supplemented included a cancellation and termination of the guaranty agreement.

Secondly, respondent argues that the supplement to the stand-by agreement treated “the guaranty agreement as consideration for and a part of the stand-by agreement,” and, in support thereof, respondent calls attention to the fact that Duncan Corporation was a party to both the 1960 stand-by agreement and the 1961 supplement thereto and that both those agreements were specifically terminated by the Bank’s letter to Mr. Strecker and the Strecker companies dated April 25, 1962. Respondent next points out that the supplement to the stand-by agreement contained a “whereas clause” noting that financing had been obtained by one of the first parties (obviously Duncan Corporation) conditioned upon Bank’s willingness to accept a new note and second deed of trust to replace the one then pledged under the prior (1960) guaranty agreement and that paragraph 4 of the supplement to the stand-by agreement was:

“4. Except as so modified [the modification referred to is the change from the 90-day to 10-day notice of intent to cancel] and except for the substitution of the new Note and Second Deed of Trust as collateral security under the Guaranty Agreement of Four-Tliree-O-Six Duncan Corporation, all of the terms and conditions of said Stand-By Agreement relating to the overdue indebtedness of Parties of the First Part to Party of the Second Part shall remain unchanged and in full force and effect, and said Stand-By Agreement is ratified and affirmed in all respects.” (Bracketed insert ours.)

Respondent then asks the question, “If the guaranty agreement and .the collateral deposit thereunder are not a part of the agreement.[referring to.the stand-by agreement as supplemented], why did the con-, tracting parties agree that excepi for changes in the former, the latter would remain unchanged?” If we understand correctly, respondent’s point is that the supplement to the stand-by agreement, by referring to the fact that a new note and a new deed of trust were to be substituted for the old as collateral security under the Duncan Corporation’s new guaranty agreement, demonstrated that the parties intended that the new guaranty agreement was to be an integral part of the stand-by agreement as supplemented. We see no merit in that contention. It is true that the 1960 stand-by agreement did not refer to the 1960 guaranty agreement and, consequently, the fact that a new deed of trust and note were being substituted as security under the new guaranty agreement was not a “change” in “the terms and conditions” of the 1960 stand-by agreement; but we do not understand how, and respondent does not suggest how, the inclusion of that reference in the supplement to the stand-by agreement could have accomplished a merger of the separate guaranty agreement into the stand-by agreement nor how such a reference could have evidenced or suggested that the parties intended that the new and separate 1961 guaranty agreement was to be unified with or merged in the stand-by agreement as supplemented.

Respondent next suggests that because the evidence did not show that the 1960 guaranty agreement was cancelled, Bank’s purported letter notice to the Duncan Corporation of foreclosure under the 1961 guar-' arity agreement showed that Bank mus't-have treated the 1960 guaranty agreement' as merged into the 1961 guaranty agreement. There can be no question but that the 1961 guaranty agreement superseded the 1960 guaranty agreement and made such prior agreement ineffective; but that fact has no probative force or relevance to support the conclusion that the separate 1961 guaranty agreement was merged. into the 1961 stand-by agreement.

Respondent’s final argument in support of its contention that the parties intended to merge all agreements into the stand-by agreement is that the letter of cancellation sent to Mr. Strecker and the Strecker companies "itself belies the intent claimed for it,” i. e., that it cancelled only the stand-by agreement and the supplement thereto. Respondent says that Bank could have foreclosed on the collateral (pledged under the' 1961 guaranty agreement) under the provisions of the stand-by agreement but that Bank, nevertheless, chose to exercise its right under the stand-by agreement to “cancel and terminate said agreements”only (said agreements referred to the 1960 standby agreement and the 1961 supplement' thereto). But the stand-by agreement as supplemented provided that upon default in the weekly payments the stand-by “agreement shall be null and void.” There were no specific provisions in the stand-by agreement for foreclosure of the collateral which had been pledged under the guaranty agreement. The provisions for foreclosure of the collateral were, of course, in the guaranty agreement (paragraph 6 heretofore quoted). Thus, it seems apparent that the Bank would'proceed under the terms of the guaranty agreement to foreclose on collateral deposited under that agreement, and the fact that its letter to Mr. Strecker and the Strecker companies cancelled and terminated only the stand-by agreement and the supplement thereto has no significance on the question of “merger.” On the contrary, such action indicated clearly that the Bank was not treating the guaranty agreement as a part of the stand-by agreement.

As we see it, and as respondent contends, ■the stand-by agreement as supplemented, the 1961 guaranty agreement, the new note and deed of trust, the $20,000 payment to the bank, were all parts of one transaction. But we see no basis, sound or otherwise, for the contention that thereby there was only one contract and consequently the guaranty agreement was merged in or unified with the stand-by agreement and therefore notice to cancel the stand-by agreement at the same time cancelled the guaranty agreement.

The rule relied upon by respondent, that separate instruments executed at the same time and relating to the same subject may be considered together and may be construed as one contract (if it has any ap-plicatipn where a “merger” is claimed), is a rule employed only for' the purpose of giving effect to the intention of the' parties; and that rule is not applied arbitrarily and without regard to the realities of the situation, 17A C.J.S. Contracts § 298, pp. 132, 133; Miles v. Martin, Tex., 321 S.W.2d 62, 65 [2] ; Huyler’s v. Ritz-Carlton Restaurant & Hotel Co. of Atlantic City (Del. Dist. Ct), 1 F.2d 491, 492 [1, 2]; e. g., when to so do would be contrary to the intention of the parties and would, in fact, “avoid an essential part of the contract,” 12 Am.Jur., Contracts, § 246, pp. 783, 784; Gerdes v. Omaha Home for Boys, 166 Neb. 574, 89 N.W.2d 849, 856 [10]. Consequently, even though several instruments relating to the same subject and executed at the same time should be construed together in order to ascertain the intention of the parties, it does not necessarily follow that those instruments constitute one contract, Malmstedt v. Stillwell, 110 Cal.App. 393, 294 P. 41, 42 [1], or that one contract thereby was merged in or unified with another, 17A C.J.S. Contracts § 298, pp. 132, 133. Thus, as a minimum prerequisite to any correct hold ing that one contract has been merged in or unified with another by reason of the fact that several documents relating to the same subject were executed on the same date, there must be some reasonable basis for finding that the parties so intended. Porterfield v. American Surety Co. of New York, 201 Mo.App. 8, 210 S.W. 119, 124.

There is no evidence in this case to indicate that the parties intended that the separate 1961 guaranty agreement executed by Duncan Corporation was extinguished and absorbed into the stand-by agreement as supplemented. The very fact that a separate guaranty agreement was executed belies any such intention. That must be true because a guaranty contract is by its very nature a separate, independent agreement “which imposes different responsibilities than those imposed in the contract to which it is collateral.” Kelly-Springfield Tire Co. v. Hamilton, 230 Mo.App. 430, 91 S.W.2d 193, 195 [1] ; Ireland v. Shukert, 238 Mo. App. 78, 177 S.W.2d 10, 14 [5, 6]; Squires v. Hoffman, Mo.App., 278 S.W. 803, 804. [3, 4]. '“A contract of'guaranty, being a col lateral engagement for the pérfórmancé'of an undertaking of.'another,' Imports'the existence of two different' obligations, 'one being that of the principal debtor and the other that of the guarantor.” ' 24 Am.Jur., Guaranty, § 4, p. 875.

We hold, therefore, that Bank’s letter of April 25, 1962, to Mr. Strecker and the Strecker companies did not cancel and terminate any agreements in question other than the February 10, 1960, stand-by agreement and the January 10, 1961, supplement thereto; that, consequently, said above-mentioned letter did not cancel or terminate the Duncan Corporation’s January 10, 1961, guaranty agreement.

It follows that the judgment is reversed and the case is remanded with directions to enter judgment for defendant-appellant.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fred SYKES, Jr., Appellant.
    No. 49704.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.

      Jack L. Koehr, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Burton H. Shostak, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   STORCKMAN, Presiding Judge.

The defendant has appealed from a conviction of murder in the first degree. The sentence assessed by the jury was life imprisonment. No brief has been filed by the defendant and the case is before us on the transcript of the record and the state’s brief.

In this situation our review extends to the assignments of error properly preserved in the motion for new trial and to the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947 [1]. The defendant’s first contention is that the trial court erred in overruling defendant’s motions for judgment of acquittal offered at the close of the state’s case and again at the close of the entire case. When the defendant as here offers evidence and testifies in his own behalf, the defendant’s right to claim error in the overruling of his motion for acquittal at the close of the state’s case is waived, and the submissibility of the case must be considered upon the entire evidence. State v. Davis, Mo., 365 S.W.2d 577, 579 [3].

Around noontime on January 3, 1962, Walter Chappel, a 76-year-old colored man came out of a drug store on the southeast corner of Jefferson and Franklin in the City of St. Louis, crossed Franklin at the intersection and walked northwardly on the east side of Jefferson. The old Jefferson Bank building was on the northeast corner and behind it a parking lot. When Mr. Chappel was in the vicinity of the rear of the building and the parking lot, he was accosted from behind by the defendant. A scuffle ensued during which Mr. Chappel fell to the sidewalk after being struck by the defendant. The defendant then raised Mr. Chappel from the sidewalk to his feet and again struck him. When knocked down the second time, Mr. Chappel’s head struck an iron post by the parking lot. The defendant stooped down, put his hand in Mr. Chappel’s right trouser pocket and removed some money. The defendant then went north on Jefferson and turned into Cole Avenue leaving the injured Mr. Chap-pel on the sidewalk.

The incident was witnessed by Willie Paul Bell, Filmore Cozart and James Morton, all of whom testified for the state and identified the defendant as Mr. Chappel’s assailant. After the defendant left the scene, another man came along and also took money from Mr. Chappel’s pocket but did not hit or strike the injured man. The witness Morton who was making a delivery to the rear of the old Jefferson Bank building remonstrated with the defendant and told him to give back the old man’s money. The defendant, however, reached in his pocket in a threatening manner as if to get a knife whereupon witness Morton went into a nearby building and called the police. The witness Bell had known the defendant personally for about two and one-half years and furnished his name to the police officers. Mr. Chappel was taken to a city hospital where he remained in a semiconscious and irrational condition until January 11, 1962, when he died.

Dr. Glennon Schafer, chief resident surgeon of the city hospital, was in charge of Mr. Chappel and testified that the cause of his.death was a cerebral hemorrhage, which was a bleeding within the substance of the brain. A spinal tap taken on the day Mr. Chappel was admitted to the hospital indicated that there was bleeding in his central nervous system. The doctor testified that Mr. Chappel’s blood vessels were weakened by disease and that a blow on his head was likely to produce the cerebral hemorrhage which caused his death. Dr. John J. Thomas,, pathologist for the. coroner of the City of St. Louis, made a post-mortem examination and determined that Mr. Chap-pel’s death was caused by a cerebral hemorrhage. He further testified that any blow to the head might cause the blood vessels to rupture where the person struck was suffering from sclerosis of the brain, and that excitement as well as sudden elevation or diminution of the blood pressure could produce a cerebral hemorrhage and consequent death.

The defendant’s father testified that he was ill with the flu on January 3, 1962, and that he gave his Social Security check to the defendant that morning with instructions'to go downtown and pay rent, utility and other bills; that his son left “close to twelve o’clock” and returned about 3 p. m. with the exact change. Receipted bills were introduced in evidence. The defendant testified that he walked downtown, that he went by the northeast corner of Jefferson and Franklin, saw an old man on the sidewalk and tried to lift and rest him against the fence around the parking lot. He denied, however, that he struck the old man or took any of his money.

In determining the sufficiency of the evidence to sustain the conviction, the appellate court must consider as true the evidence favorable to the state and favorable inferences that can reasonably be drawn therefrom, and evidence to' the contrary must be rejected. State v. Davis, Mo., 365 S.W.2d 577, 578 [2] ; State v. Reagan, Mo.; 328 S.W.2d 26, 29 [5].

The evidence was clearly sufficient to prove that Mr. Chappel was assaulted and mortally wounded by the defendant while the defendant was in the act of robbing Mr. Chappel and that the victim died as the result of the wounds inflicted by the defendant. The trial court did not err in refusing to sustain the defendant’s motion for judgment of acquittal. State v. Morris, Mo., 307 S.W.2d 667, 673 [6]; State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843, 848 [10]; State v. Hyland, 144 Mo. 302, 46 S.W. 195, 198; State v. Trent, Mo., 278 S.W. 676, 678 [1].

Akin to the questions just disposed of is the fifth specification of the motion for new trial which charges that the verdict was against the substantial evidence in that there was no direct evidence to show that the defendant inflicted a mortal wound on Mr. Chappel which caused his death, and the mere possibility that a blow delivered by the defendant could have caused the death was not sufficient. The evidence clearly shows that just prior to his encounter with the defendant Mr. Chappel was conscious and walking north on the east side of Jefferson. After he had been knocked to the sidewalk the second time by the defendant, Mr. Chappel became semiconscious and irrational and so remained until his death eight days later. Initial examination at the hospital revealed head injuries and a spinal tap disclosed bleeding in the central nervous system indicative of the cerebral hemorrhage which caused his death. The medical testimony was that his injury and death could have been caused by a blow to the head. There was substantial evidence from which the jury could reasonably find that Mr. Chappel’s injury and death resulted from blows delivered by the defendant. State v. Morris, Mo., 307 S.W.2d 667, 673 [6]; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 54 [4]; State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 712 [5]. The assignment of error is denied.

The third specification of error is that the verdict was the result of passion and prejudice in that the circuit attorney in his opening statement asserted that the victim had just received and cashed his pension check, but failed to offer evidence to substantiate the statement. The transcript shows that the statement made was that “an old man by name of Walter Chappel in his early seventies or early eighties, living on Old Age -Pension, cashed his pension check about the 1st of the month, * * At the beginning of the statement, the circuit attorney had said: “The opportunity is given to us at the beginning of our side of the case to outline for you what we think the State’s evidence will show in the case. This is not an argument; it’s not for the purpose of giving an argument, but it’s for ■the purpose of giving you an over-all picture of what the case is all about.” The evidence did show that Mr. Chappel was 76 years of age, afflicted with arteriosclerosis, and that he had money on his person, but there was no evidence that he was an old-age pensioner who had cashed his pension -check about the first of the month.

Absent a showing that a statement of expected proof was not made in good faith, the other party cannot ordinarily complain of a failure to prove the matter stated. State v. Stillman, Mo., 310 S.W.2d 886, 888 [4]; State v. Flinn, Mo., 96 S.W. 2d 506, 509 [2]. Furthermore, the defendant made no obj ection at the time or during the two-day trial but for the first time in his motion for new trial. Where the trial court is given no opportunity to instruct the jury or correct an alleged error, the after-trial assignment is not looked upon with favor. State v. Brookshire, Mo., 353 S.W.2d 681, 688 [17]; State v. Leonard, Mo., 182 S.W.2d 548, 550 [2, 3]; State v. King, Mo., 334 S.W.2d 34, 37 [1]. It is inconceivable that the failure to prove that Mr. Chappel was an old-age pensioner who had just cashed his check prejudiced the.defendant in the slightest degree. The contention is denied.

The next assignment of error is that the trial court erred in overruling the defendant’s objection when the circuit attorney in identifying the defendant asked the witness Morton, “Is this the man right here that you saw fighting 'on Jefferson Avenue (indicating) ? ”, and the witness answered, “That’s right.” The defendant’s objection after the question had been answered was “I object to that, Your Honor. That’s leading the witness.” The witness inj ected the statement that he had not seen the defendant for three or four months, and the court made no ruling. An objection made after the witness has answered is untimely and, in the absence of a motion to strike the answer, the ruling of the cou.t or its failure to rule, is'not preserved for review. State v. Velanti, Mo., 331 S.W.2d 542, 546 [7]. Furthermore, after the jury had retired to deliberate, one of the jurors on behalf of all members requested that the entire testimony of the witness Morton be read to them. This was done with the express approval of both parties. The question was leading, but it is manifest from the testimony of this witness and all the other evidence in the case that the defendant was not prejudiced by this slight departure from the usual method of direct examination.

The defendant’s final assignment is that “the verdict of the jury was against the weight of the evidence”. It is the function of the jury, not the court, to weigh the evidence and the assignment preserves nothing for appellate review. State v. Davis, Mo., 365 S.W.2d 577, 582 [13]; State v. Howard, Mo., 360 S.W.2d 718, 721 [2]; S.Ct. Rule 27.20(a).

The record reveals that the defendant was effectively represented and received a fair trial. We have considered all of the specifications of error preserved in defendant’s motion for new trial and find them to be without merit. The defendant was present and represented by counsel throughout the trial, including his allocution and sentencing. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


author: STORCKMAN, Presiding Judge. PER CURIAM.

text:
    John H. WOLF and Edith Wolf, Appellants, v. Donald J. MIRAVALLE, Respondent.
    No. 49682.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 11, 1963.

      Schurr & Inman, Clayton, for plaintiffs-appellants.
    Robert V. Niedner, Paul F. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.
   STORCKMAN, Presiding Judge.

This is an equity action to determine title to a strip of land lying between properties owned by the parties in Portage des Sioux, St. Charles County, Missouri. The parties acquired title to their respective properties from the same grantor, and the essential issue is the location of the northern boundary of plaintiffs’ land. The court found the issues for the defendant, and the plaintiffs appealed from the judgment denying the plaintiffs’ prayer for injunctive relief and decreeing reformation of plaintiffs’ deed in accordance with the prayer of defendant’s cross bill.

The Town of Portage des Sioux is located on the Mississippi River, the bank of which at the place in question runs generally east and west. The plaintiffs’ land is situated in Block 82 of a subdivision named Northern Addition to the Town of Portage des Sioux, which Addition was platted and recorded in June 1854 and consists of generally rectangular subdivisions designated as blocks which are in a single row extending east and west. A strip of land running along the northern boundary of all blocks of Northern Addition including Block 82 is designated on the plat: “perpetual Reservation of a street of 60 feet wide.”

In 1931, as shown by plaintiffs’ Exhibit 4, another subdivision named Playground Addition was platted and recorded to the north of Northern Addition. Playground Addition is separated from Northern Addition by the strip of land 60 feet wide reserved for a street. The lots or blocks in Playground Addition are of the same width as those in Northern Addition. Lot 4 of Playground Addition is immediately north of Block 82 of Northern Addition but separated by the “street of 60 feet wide.” Lot 3 of Playground Addition is immediately west of Lot 4. Sometime during the 1930’s a dam was built in the Mississippi River at Alton, Illinois, which created an impoundment of water known as Alton Lake, which flooded practically all of Playground Addition and a portion of Northern Addition.

LeRoy Barnard was the owner of land in the vicinity including Lots 3 and 4 in Playground Addition and Block 82 in Northern Addition, on and over which land he at one time conducted a boat harbor Joiown as the Palisades Yacht Club. Under date of December 18, 1956, Mr. Barnard leased the Palisades Yacht Club to the defendant Donald J. Miravalle and the lease included a tract of land in Block 82 “bounded on the West by the West line of Block 82, fronting 180 feet on PERPETUAL 60 foot street which forms the North line of block 82, and having a depth Southwardly of 300 feet.” On December 2, 1960, Mr. Barnard conveyed to the plaintiffs by warranty deed the eastern 76 feet 8 inches of Block 82, the northern boundary of which was described as “a 60 foot street known as Perpetual Street.” Thereafter, on February 10, 1961, the Barnards conveyed to the defendant Donald J. Miravalle a tract of land in Block 82 of Northern Addition bounded on the west by the west line of Block 82 and “fronting 180 feet on PERPETUAL 60 foot street which forms the North line of Block 82” together with Lots 3 and 4 of Playground Addition.

A roadway about 20 feet wide runs across the north end of Block 82 in an east and west direction and has been in existence at least 20 to 30 years. A survey of Block 82 made by Charles W. Ruff, the county surveyor, at the request of the plaintiffs, was introduced in evidence as plaintiffs’ Exhibit 3. This shows the 60-foot-perpetual reservation for street purposes to be at least partially under water and that its south edge is about 10 feet north of the north side of the 20-foot roadway. The northeast corner of Block 82 is also under water. It is the 10-foot-strip of land north of the roadway that is in dispute.

The plaintiff John H. Wolf testified that on July 4, 1961, he and some friends were using a small boat dock on the northeast corner of Block 82 which was within the boundaries of the land he claimed was conveyed by his deed. The defendant disputed Mr. Wolfs right to use the dock and threatened to erect a fence and to pile dirt north of the private road so as to cut off the plaintiffs’ access- to the river. Thereafter, the defendant did erect a fence and dredged dirt which he piled on the 60-foot-street reservation for the express purpose of making a private parking area for the boats of his club members and to prevent the plaintiffs from having access to the river. The defendant did not testify.

Under date of October 3, 1961, the defendant obtained from the Barnards a quitclaim deed to land described as follows: “All land which may lie between Perpetual Street as the same is now situated and located upon the ground in Portage des Sioux, Missouri and the Mississippi River extending between parallel lines between the lot lines of Block 82 of North Addition to Portage des Sioux, Missouri. Also all our right, title and interest in and to any part of Perpetual Street as the same is now located as well as the same is platted whether they be the same or not, and in between said two parallel lines and extended.”

The plaintiffs filed this suit on November 14, 1961, seeking to enjoin the defendant from maintaining the fence and piles of dirt on plaintiffs’ property and in Perpetual Street and to require the defendant to remove those obstructions and to restore plaintiffs’ property and Perpetual Street to their former condition.

The defendant’s cross bill alleged that there has been for many years past a publicly known, used and recognized street known as Perpetual Street in the Town of Portage des Sioux; that the defendant and the plaintiffs both hold title by conveyances from LeRoy Barnard and Desmond Barnard, husband and wife, and it was the intent of the Barnards to convey to defendant all the land owned by the Barnards lying north of the established Perpetual Street; “that at the time of the conveyance the parties thereto were not aware that Perpetual Street as located was any different than Perpetual Street as platted, if in fact the same is true”; that it was the intention of the parties to the conveyance to the plaintiffs to include only such land as was situated south of Perpetual Street “as located”. The cross bill further alleges if the conveyance to the plaintiffs describes any land north of Perpetual Street as now located then in equity the said deed should be reformed “because said words do then conflict with the ostensible intent of the parties.” The prayer of the cross bill is “for an order of this Court reforming the said deed from Bernard to Plaintiffs and for the decree of this Court quieting title in Defendant to all that area lying North of Perpetual Street as the same is now located.”

The grantor LeRoy Barnard testified on behalf of the defendant and to the extent necessary his testimony as well as other evidence will be referred to later. The trial court found that the northern boundary of Block 82 as surveyed in July 1963 by the county surveyor generally coincides with the southern boundary of the 60-foot-perpetual reservation and with the south bank of the Mississippi River; that the 60-foot platted way was virtually submerged in the Mississippi River and has never been used as a roadway, public or private; that the 20-foot roadway has been generally known as Perpetual Street to old residents and has been maintained by the Town of Portage des Sioux; that the description of plaintiffs’ northern boundary is ambiguous and must be construed considering the intention of the parties as shown by the instrument itself and the accompanying circumstances; that to the north there was only one visible street which was the established 20-foot street, and that Mr. Wolf and Mr. Barnard would be more likely to mean the existing street they both saw on the ground than a dedicated but invisible one lying under the water, and that the deed should be reformed. The decree covered a wide scope but for present purposes it is sufficient to say that it provided that the description in plaintiffs’ deed dated December 2, 1960, be reformed “by substituting for the words, in said description, ‘on the North by a 60 foot street, known as Perpetual Street’, the words ‘on the North by the public street across the Northern end of said Block No. 82, as it exists and is used as a street of the Town of Portage des Sioux.’ ”

In general, the plaintiffs’ contentions on appeal are that the description in their deed was not ambiguous and that the evidence was insufficient to prove a mutual mistake.. The first phase of these contentions is that the deed was tied in with the recorded plat and each is consistent with the other. The complete description of the land conveyed to the plaintiffs by the warranty deed of December 2, 1960, is as follows:

“A part of Block No. 82 of the Northern addition to the town of Portage des Sioux, as the same is marked and designated on the plat and subdivision of addition duly recorded in the Recorder’s Office of St. Charles County, Missouri in Book D. No. 2 page 20. The said part of the said Block No. 82 herein conveyed being the Eastern 76 feet 8 inches of said Block No. 82 bounded on the East by Clark Street, on the North by a 60 foot street known as Perpetual Street, on the South by Front Street and on the West by the remainder of said block part of which has been leased to Miravelli.”

When a recorded map or plat of a subdivision is referred to in a deed conveying a portion of the tract, the map or plat becomes as much a portion of the deed as if it were fully incorporated therein. Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343, 345 [3]; Hammond v. Barnsdall Re fining Co., 338 Mo. 488, 92 S.W.2d 149 [1]; Gloyd v. Franck, 248 Mo. 468, 154 S.W. 744, 746 [2]; Shelton v. Maupin, 16 Mo. 124, 127-128. A copy of the recorded plat and subdivision of Northern Addition referred to in plaintiffs’ deed was introduced in evidence as plaintiffs’ Exhibit 2. The dimensions of Block 82 are: 256 feet 8 inches from east to west, 700 feet along the western boundary, and 665 feet along the eastern boundary which causes the northern boundary to slope slightly from west to east. There are open spaces running north and south between each block as well as east and west at the north and south boundaries of each block which obviously represent streets although none of them are named. As stated in City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202, 206 [4]: “In construing such a muniment of title as this plat, courts will give effect to the plain meaning and intent they exhibit by their outlines, as well as by their words.” Moreover, the street running along the northern boundary of the blocks in Northern Addition, including Block 82, bears this inscription, “perpetual Reservation of a street of 60 feet wide.” There is no designation of any other street or roadway at or near the northern boundary of Block 82. There can be no doubt that the northern boundary of Block 82 is the 60-feet-wide reservation for street purposes.

The deed and the plat are in harmony, and they are not ambiguous on their faces when considered separately or together. The deed purports to convey the entire eastern 76 feet 8 inches of Block 82 according to the plat and subdivision of record and not merely a part of it. A 60-foot street called for in the deed is shown on the plat as the northern boundary of Block 82 and is denominated a perpetual reservation. No other 60-foot street appears on the plat. Nor does the word perpetual appear in any other connection. It is significant also that the remainder of the block is designated as the zvestern boundary of the part conveyed. The deed does not indicate that any part of the remainder of the block is north of the “60 foot street known as Perpetual Street.”

Where an uncertainty in the description of the land conveyed does not appear upon the face of the deed but evidence discloses that the description applies equally to two or more parcels, a latent ambiguity is said to exist and extrinsic or parol evidence is admissible to show which tract or parcel of land was intended. Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1063-1064; County of Johnson v. Wood, 84 Mo. 489, 515; Jennings v. Brizeadine, 44 Mo. 332, 334-335; Hardy v. Matthews, 38 Mo. 121; 32 C.J.S. Evidence § 961 b(3), p. 917; 20 Am.Jur., Evidence § 1157, p. 1010. This rule applies to written instruments generally and requires first that an inquiry be made to determine if a latent ambiguity exists. Prestigiacamo v. American Equitable Assurance Co., 240 Mo.App. 839, 221 S.W.2d 217, 221 [5].

The rules for the determination of the ultimate question in this case are well stated in County of Johnson v. Wood, 84 Mo. 489, 515, as follows: “In cases of latent ambiguity in ordinary contracts such evidence is admitted to apply the words of the instrument to the person or thing intended. A latent ambiguity in respect to the property to be affected occurs in a dispositive writing when the language employed in the whole instrument does not serve to identify the thing to be transferred, but extrinsic evidence discloses the existence of two or more objects to which the whole description contained in the writing is equally applicable. But, where the legal construction of an instrument gives it a certain and definite meaning and effect, by which the property to be transferred is clearly ascertained and identified, its descriptive terms cannot be equally applicable to other property, and the instrument cannot be said to be ambiguous. Where the words are plain and free from ambiguity, oral evidence of the intention of the parties has been universally excluded. Declarations of intention constitute a part of the colloquium or previous conversation of the parties and can be entitled to no greater weight than stipulations previously agreed upon, but not inserted in the writing, and, therefore, presumed to have been abandoned.”

In evaluating the evidence, we have this further guide from Jennings v. Brizeadine, 44 Mo. 332, 334—335: “Where words apply equally to different things or subject-matters, evidence is admissible to show which of them was the thing or subject-matter intended. If, in a deed conveying premises, the description is certain, parol evidence of the intent, the act, and declarations of the parties, going to establish a different location or another designation, is inadmissible, as contradicting or varying the deed. * * Where the expression of the intent is doubtful and ambiguous, the most material and certain among the evidences of intent are to be selected and accredited. That which is most material and most certain in a description shall control that which is less material and less certain.”

The existence of a latent ambiguity regarding the location of the northern boundary of plaintiffs’ land depends on whether the term “a 60 foot street known as Perpetual Street” as contained in the deed is equally applicable to an existing roadway 20 feet wide across the northern portion of Block 82 and the “perpetual Reservation of a street of 60 feet wide” as shown on the recorded plat. At the place in question, the 20-foot roadway and the 60-foot-platted street are about 10 feet apart as shown by the only survey in evidence. A utility pole and some portion of a fence was on the north side of the 20-foot roadway and a trailer was parked on the 10-foot strip. Maintenance work had been done on the roadway by the Town of Portage. The town clerk testified that sometimes during the summer the Town Board would be petitioned by one of the harbor owners to put the roadway in repair, and on different occasions the road had been oiled and minor repairs made. There was evidence that the 20-foot roadway had been used for a period of about 30 years. Witnesses for the defendant testified that the roadway was known as Perpetual Street. On the other hand, there was evidence that the roadway had not been designated or known as Perpetual Street. There was testimony that Perpetual Street was a 60-foot-wide street but no testimony that the existing roadway was 60 feet wide. Mr. LeRoy Barnard himself testified that he had a plat with him at the time he sold the land to the plaintiffs which showed the width of Perpetual Street to be 60 feet wide. This in substance is the evidence on which the defendant must rely to prove that a latent ambiguity exists justifying the introduction of further evidence bearing on the northern boundary of the property conveyed.

The defendant’s principal contention on appeal is that the plaintiffs’ deed was ambiguous because it referred to a boundary “known as” Perpetual Street which was not designated of record, and that the court did not err in receiving evidence to determine what the parties intended by the description in the plaintiffs’ deed and in particular the intention of the grantor because the determination of his intention is'the principal element to be considered in construing a deed. Evidence in this category was received. The grantor LeRoy Barnard, over objection by the plaintiffs, was permitted to testify that in addition to inspecting the plat he went to the location with Mr. Wolf and informed “him orally what it was that [he was] selling him”, that he showed Mr. Wolf the roadway by which he reached the lot, advised him that he called the roadway “Perpetual”, that the area he was selling Mr. Wolf was south of the roadway and that no river frontage was included with the land and further stated that Mr. Wolf did not take issue with him about acquiring any property on the north side of the roadway. The deed was prepared by the grantor’s attorney. In arguing an objection to the cross-examination of Mr. Wolf, defendant’s counsel stated defendant’s theory to be that “the discussions and conversations leading up to this deed and its meaning, as evidenced by the parties in their own conversations between them,” was admissible in evidence. The plaintiffs’ objection was overruled and the defendant’s counsel was permitted to bring out on the cross-examination of Mr. Wolf that he and Mr. Barnard walked to the 20-foot roadway and Mr. Barnard told him that it was Perpetual Street but that he, Mr. Wolf, raised questions about the street being 60 feet wide as shown on the maps, and that he “disputed” with Mr. Barnard that the roadway shown him was where the block ended. Mr. Wolf further denied that Mr. Barnard told him that no river frontage was included.

There are no existing streets at the east ■ or south boundaries of Block 82 although streets are referred to by name in the deed and are shown on the plat without being named. The south end of Block 82 ends in a slough and those portions of the boundaries in that vicinity are covered by water. ■ The water in the 60-foot-street reservation and at the northeast corner of Block 82 is from 16 to 24 inches deep and at times contains driftwood and other debris. There was evidence that the streets under water' were used by boat operators as a means of access to Alton Lake. Mr. Wolf was a boating enthusiast and had been going to the area for several years. He intends to build a home on the land purchased.

In the absence of ambiguity in the description of the property conveyed, the intention of the parties must be determined by wdiat the deed actually says and not by what the grantor might have said if he had decided to explain his intentions further. Bay v. Stout Sign Company, Mo., 301 S.W.2d 786, 788 [1] ; Boxley v. Easter, Mo., 319 S.W.2d 628, 632 [4]. Prior negotiations, stipulations and conversations are presumed to be merged into the written conveyance and they cannot be relied on to vary or con tradict unequivocal statements in the muniments of title. In Northrip v. Burge, 255 Mo. 641, 164 S.W. 584, 591 [10], the court, in speaking of a grantor in a deed, stated: “Clearly it was not competent by his subsequent declarations to alter the terms of his previously executed and delivered and recorded deed, or to show that it did not include all that he intended to convey, in the absence of any fraud or imposition upon him in the matter of the execution of the deed, of which there is no evidence whatever in the present record.” The facts in Harding v. Wright, 119 Mo. 1, 24 S.W. 211, are quite similar to those in the present case. Both parties claimed under deeds from the same grantor and the descriptions in the two deeds overlapped. The- grantor was permitted to testify that he conveyed only a certain amount of land to the plaintiff, and when he discovered that he had more he conveyed the remainder to the defendant. The supreme court held that the admission of parol testimony was erroneous in that the grantor thereby contradicted his deed and varied the description of the lands conveyed to the first grantee. In Bell v. Jamison, 102 Mo. 71, 14 S.W. 714, the controversy involved the proper location of the boundary line between the plaintiff and the defendant. The plaintiff was claiming land about 60 feet north of a fence established by the defendant which the defendant claimed was the proper line. The court stated, 14 S.W. loc. cit. 715: “Nor did the court err in refusing to require the plaintiff to testify on his cross-examination whether he bought the land by the acre. By his deed from McGee the land was conveyed to him by metes and bounds and these bounds were the measure of his claim, they could not be varied or changed by parol, and his answer could have thrown no light upon the issue in regard to an agreement as to the boundary line between others to which he was not a party in fact.” See also 32 C.J.S. Evidence § 916, p. 838.

There is no proof in the record that the 60-foot-platted street adjoining Block 82 on the north has lost its identity and status as a public street even though submerged and presently used by water traffic only. The recording of the plat vested the Town of Portage des Sioux with a fee in trust and gave the Town complete discretion and control as to the time and manner of improving the street. Section 445.070, RSMo 1959, V.A.M.S.; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790, 792 [1]; Ginter v. City of Webster Groves, Mo., 349 S.W.2d 895, 899 [3]. The failure or neglect of municipal officers to assert the public right dur ing the period of the statute of limitations will not constitute an abandonment or transfer to a private claimant of any part of city property held in trust for public use. Winschel v. County of St. Louis, Mo., 352 S.W. 2d 652, 653 [1]; City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202, 206 [5].

There is no evidence properly in the case which proves that the grantors did not intend, the 60-foot-platted street to be the northern boundary of the property conveyed. The deed itself and the recorded plat are consistent with that purpose. The use of the word “perpetual” on the platted street suggests the origin of the name by which the street was known. The evidence tends to prove that Mr. Barnard was uncertain as to the precise location of the 60-foot street, but all the competent evidence supports an intention to convey up to the platted 60-foot street which is the only street of that dimension disclosed by the evidence. Prior and subsequent written declarations binding on the grantors and the defendant support this view. In the lease of December 18, 1956, and the warranty deed of February 10, 1961, (both from the Barnards to the defendant), the part of Block 82 leased and conveyed was described as “fronting 180 feet on PERPETUAL 60 foot street which forms the North line of block 82”. The two documents executed before the controversy developed between the plaintiffs and defendant express in only a slightly different way what was said in plaintiffs’ deed. They establish that there was 60-foot-wide street known to Mr. Barnard and the defendant as Perpetual Street and that is the one to which plaintiffs’ deed refers. Whether the 20-foot roadway was also known as Perpetual Street is of no consequence. The evidence fails to establish that the term “60 foot street known as Perpetual Street” applies equally to the 20-foot roadway. Hence there is no ambiguity in the deed, latent or otherwise. From the deed and the recorded plat, it is clear that the intention was to convey to plaintiffs the entire eastern 76 feet 8 inches of Block 82 and the reference to streets may be disregarded. Boxley v. Easter, Mo., 319 S.W.2d 628, 633 [7] ; 26 C.J.S. Deeds, §§ 30 h and 90 c. The status of the 20-foot roadway is not an issue in this case and is not determined.

Little needs to be said on the issue of reformation. The cross bill asked for reformation and the decree granted it, apparently on the theory of conforming the deed to the intention of the parties. The respondent’s brief concedes that it does not appear from the findings of fact, conclusions of law and decree that the trial court found that there was a mutual mistake. The respondent in his brief further states that the cases cited by the trial court in support of his action in reforming the deed involve mutual mistake, and the brief further states that “this is not the kind of mutual mistake that requires or permits a court of equity to reform a deed, and that the effect of what was done in this case was that the deed was construed to mean what the parties were shown by the evidence to have intended”. The evidence was wholly insufficient to constitute a mutual mistake of the sort required to justify the reformation of the warranty deed. Robinson v. Korns, 250 Mo. 663, 157 S.W. 790, 793-794 [2, 3] ; Walters v. Tucker, Mo., 308 S.W.2d 673, 678 [6].

Since the documentary and other competent evidence does not reveal any ambiguity in the plaintiffs’ warranty deed and no ground of fraud or mutual mistake was shown, the reformation of the deed was unwarranted. Fisher v. McClard, Mo., 262 S.W.2d 37, 38 [1]. The court erred in granting the affirmative relief requested by the cross bill.

The evidence was sufficient to warrant a finding that the boundary line established by plaintiffs’ surveyor was correct. Krick v. Thompson, 349 Mo. 488, 162 S.W.2d 240, 243 [2]. Neither the defendant nor the grantor had had a survey made. The defendant’s primary contention was that he owned the land in dispute. Since the acts of the defendant in erecting a fence and piling dirt on plaintiffs’ land and his obstructing the street were willful, deliberate -and continuous, the plaintiffs are entitled to the injunctive relief sought. Winslow v. Sauerwein, Mo.App., 285 S.W.2d 21, 25 [9, 10]; St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d 119, 123 [4] ; Bell v. Walkley, Mo.App., 27 S.W.2d 456, 458 [5]; Town of Montevallo v. Village School District, 268 Mo. 217, 186 S.W. 1078, 1079 [1].

Accordingly the judgment and decree is reversed and the cause remanded with directions to deny the affirmative relief requested by the defendant and to dismiss his cross bill; and further to find the issues in favor of the plaintiffs, to grant the injunction as prayed and to otherwise proceed in accordance with the findings and law as stated in this opinion.

All of the Judges concur.

On Motion for Rehearing

PER CURIAM.

In his motion for rehearing the defendant asserts that title to real estate is not involved and that this court does not have jurisdiction of the appeal. In his appellate brief the defendant suggested that this court was without jurisdiction because title to real estate “would not seem to be involved.” The suggestion was given attention and the opinion recites factors which demonstrate that this court has jurisdiction although the conclusion was not drawn. Regardless of the plaintiffs’ petition, the defendant’s cross bill and the relief granted thereunder confers exclusive jurisdiction on this court.

The first sentence of the opinion states that this is an equity action “to determine title” to land. The prayer of the cross bill was for an order “reforming the deed” and for a decree “quieting title” in the defendant. The trial court found and decreed that the parcel of land in dispute “is owned by the defendants-” and reformed the warranty deed accordingly. Unquestionably, title to real estate is directly involved and this court has exclusive appellate jurisdiction. Numerous cases so hold; among the more recent ones are Kauflin v. Turek, Mo., 277 S.W.2d 540, 542 [1], Dillard v. Dillard, Mo., 266 S.W.2d 570, 572 and Tayler v. Tayler, Mo., 243 S.W.2d 310, 312 [1]. See also notes 232 and 233 to Art. 5, § 3, of the Missouri Constitution, 2 V.A.M.S., pp. 117-118. Where the trial court finds the fact of title and purports to adjudicate and determine title, the action involves title to real estate regardless of the form of action and jurisdiction of the appeal is vested in the Supreme Court. Albi v. Reed, Mo., 281 S.W.2d 882, 884 [4].

The other matters specified in the motion for rehearing or, in the alternative, to transfer to the court en hanc have been considered and adequately covered by the opinion. It would serve no useful purpose to restate or augment those discussions. Accordingly the motion for rehearing or, in the alternative,- to transfer to the court en banc is overruled.