author: McDowell, judge.

text:
    James CANNON et ux., Plaintiffs-Appellants, v. O. J. BINGMAN et ux., Defendants-Respondents.
    No. 7989.
    Springfield Court of Appeals. Missouri.
    Feb. 28, 1962.

      Robert J. Quigley, Harry H. Kay, Eldon, for appellants.
    Theo. G. Scott, Buffalo, Gordon R. Boyer, Lamar, for respondents.
   McDowell, judge.

This is an action in equity for rescission of a real estate contract involving the “Red Diamond Resort” on the Lake of the Ozarks, in Camden County, Missouri, for the recovery of partial payments made on the stipulated purchase price and to have the judgment declared a special lien on the real estate which was the subject matter of the contract. The action is by the purchasers, James Cannon and Jewel Cannon, his wife, and against the vendors, O. J. Bing-man and Winnie B. Bingman, his wife. The trial court found for defendants and against plaintiffs and dismissed plaintiffs’' first amended petition, and for plaintiffs on defendants’ counterclaim which was by the court dismissed. Plaintiffs have perfected their appeal.

The cause was originally filed May 18, 1959, and, on May 12, 1960, appellants filed their first amended petition on which the issues were made and the cause tried.

In this petition plaintiffs alleged that they had been induced to enter into a written, contract with defendants for the purchase of the resort involved through fraudulent representations as to where the true boundary lines of the real estate involved were, by defendants’ agent. They seek to have the contract rescinded and for judgment for the amount of money paid under the terms of the contract and that such judgment be declared a special lien against the real estate now standing in the names of defendants.

Defendants’ answer to plaintiffs’ first amended petition admitted that they had listed the real estate involved for sale with Frank H. Meissner, a real estate broker, but denied all other allegations. They admit the purchase of the real property sold at foreclosure sale and that they now have title to the same.

They plead laches and waiver on the part of appellants in failing to elect to rescind the contract when they discovered that fraud had been practiced upon them.

Briefly stated the evidence is: That respondents, owners of the Red Diamond' Resort, listed said resort with the Ozark Realty Company for sale. Frank H. Meiss-ner, representative of said company, showed the resort to appellants, prospective purchasers, on May 17, 1958. It consisted of 5 cabins, a house, 9 boats, 4 motors, a dock and equipment shed.

In negotiating the sale of this property to appellants Meissner took them out on the property and pointed out the boundary lines thereof. Bingman was on the property at the time but took no part in the negotiation.

Appellants’ evidence is that Meissner represented to them that the north boundary line of the property was a fence which runs in a northeasterly direction.

Appellants’ exhibit I is a photograph showing a portion of the resort as seen from the northeast corner and the fence, pointed out to appellants, as the north boundary line. Just south of the fence and alongside thereof is a gravel road. At the northeast corner of the property the fence makes a jog or circles around a small tract of land 25 or 30 feet wide north of the gravel road. Appellants testified that Meissner pointed out to them that this tract was used as a parking lot and was a part of, and went with, the Red Diamond Resort. The evidence is that this gravel road was 8 or 10 feet wide and that the ground north of it was higher than the road and below was lower; that this road continues on to the northeast and into the property owned by Yorks and used by them as an outlet.

Appellants’ exhibit II is a photograph showing the other end of the resort from that shown in exhibit I. Meissner told appellants that the boat house and walkway, shown in this exhibit, went with the resort. The testimony is that the present gravel road, shown in the photographs in exhibits offered by appellants, is the only gravel road on the property. James Cannon testified:

“Q. You noticed this road when you were there on May 17th? A. Why, certainly. It was represented to be ours.”

Appellants’ evidence is that at the time of the negotiation of the sales contract they had no actual knowledge as to where the boundary lines of the property were but relied strictly upon Meissner’s representations. Cannon testified that as they walked down the gravel road toward the lake, Meissner pointed out the parking lot just north of the road, told them the trees along the north side of this road could be cut down in order to enlarge the parking facilities.

The purchase contract in issue was entered into in the office of Ozark Realty Company May 20, 1958. Immediately after its signing, and before any papers were executed conveying the property to appellants, Meissner promised appellants to have a survey made showing the boundary lines to the property. The sales contract, in substance, provided that respondents convey to appellants the Red Diamond Resort, including fixtures, equipment, deep freeze and power mower, shown by attached inventory. It provided for the exceptance of 100 foot lot on which was located a poultry house. The purchase price was $32,500.00, payable $500.00 on signing of the contract, $8500.00 on delivery of deed and that respondents carry the balance of $23,500.00 represented by a note signed by appellants secured by deed of trust or mortgage on the property, payable in instalments of $900.00 on principal plus interest every six months. Sellers were to furnish abstract of title within ten days from date of contract and buyers were given ten days to examine same. Appellants paid to Meissner $500.00 on the signing of the contract. Meissner’s agreement to have a survey of the property made was made just after the signing of the contract and prior to the execution of the deed and deed of trust and prior to the payment of the $8500.00. June 26, 1958, appellants returned to the Ozark Realty Company to complete the sale. At that time Meissner had in his possession a warranty deed to the resort purporting to convey it to appellants and the deed of trust and note for the'balance of the purchase price, which appellants signed. Appellants paid to Meissner at that time $8500.00, as provided by the contract, were informed by him that the survey had not been made. They examined the deed but refused to accept it until the survey was made. July 1, 1958, appellants took possession of the property. Respondents, without the permission or consent of appellants placed the warranty deed on record together with the deed of trust which appellants received some time later through the mail.

The warranty deed described the real estate in issue by metes and bounds and the last courses read:

“ * * * thence South along said. Quarter (⅛) section line Twenty and Eight Tenths (20.8) feet to a point in the center line of a present Thirty (30) foot road; thence South Forty-five (45) degrees, Fifty-nine (59') minutes East along the center line of said road One Hundred Forty-one and One Tenth (141.1) feet to a point; thence South Eighty (80) degrees Thirty-two (32‘) minutes East continuing along the center line of said road Four Hundred Forty-five and One Tenth (445.1) feet to a point; thence South Nine (9) degrees Twenty-nine (29') minutes West, a distance of Thirty-four (34) feet more or less, to the Six Hundred Sixty-two (662) foot contour elevation of the Lake of the Ozarks, * * *

Prior to receiving the deed, appellants learned on July 6th, that Yorks claimed a part of the property which Meissner had represented as belonging to the Red Diamond Resort but never talked to Bingman about the matter until October 28th. On December 26th appellants made the semiannual payment on the principal with interest, by letter, and, at that time, made no statement about the title to the property.

James Cannon testified that he first approached Bingman about where the lines to the property were on October 15, 1958, and asked him if he had knowledge of the fact that Yorks were claiming a part of this property when the contract of sale was made and respondent answered “Yes” but he didn’t know what he could do about the matter; that “If it is wrong, * * * I guess I will just have to go back on the other people I bought it from”. Witness testified that he, again, approached Bingman about the matter around Thanksgiving, 1958. He gave this answer: “I asked him, I said, ‘Well, you know this has got to be settled’, and said ‘Yes, I do, but’ he said ‘if you want to know anything’ he says ‘go to the Ozark Realty’, he said, ‘they are the ones that sold it to you’, he says, T can’t tell you a thing’ ”. He testified he discussed the matter with the Ozark Realty Company a number of times but “they didn’t give us much recognition when we did discuss it”; that in December a payment was due, which appellants paid.

The evidence shows that after the discussions with respondents and with Meiss-ner as to the property conveyed them by the deed, they sought the advice of a lawyer. On May 18,1959, appellants filed their original petition.

Mrs. Cannon, appellant, testified that Meissner pointed out a point about two feet north of the tool house as being where the north line came'to but that the line he pointed out included the parking area before reaching that point. On July 12, 1958, appellants executed a deed to respondents for the lot that was reserved. They testified they did not know the “whys or wherefores of the transaction”.

R. W. Vincent testified in behalf of appellants that he was a registered land surveyor and had been practicing his profession for 38 years; that he made a survey of the Red Diamond Resort a year or so ago; that at the time of the survey he had the deed, executed by respondents to appellants (plaintiffs’ exhibit 6). He made a paper map of this survey (plaintiffs’ exhibit 8). He gave this evidence: “A. Yorks started a survey over there of this line and the man who helped me, one of my deputies, went out there and made the survey. Instead of a 'line being at this 34 feet north 9 degrees, 28 minutes east from the point on 662 contour it actually ran down into the lake, and I went out there the next morning then on my own, as it turned out, and we rechecked this line which he had run according to the legal description and came out right where he said, but instead of it being up on the bank 34 feet above the 662 contour it was 55 feet to the right of that, which put it down even below the 660 contour just a little bit in the lake, which left me where I didn’t know what else to do.”

The witness testified that if the description in the deed, executed by respondents to appellants, was followed, the northern boundary of the property at the east end would run down into the lake and there would be no shore line on the Red Diamond Resort. He testified that he observed the roadway which runs along the south side of the fence up into the York property and was asked:

“Q. And where would this line be with respect to that roadway? A. It would be considerably below the road and this 34 feet above the 662, as I recall, would be in the upper edge of the road.
“Q. Now, if the actual bearings got out of the deed were followed as the northerly boundary of this Red Diamond would it include the tool house there? A. No.”

His evidence was that the bearings as shown in the deed would exclude the gravel road and a considerable portion of the land south of the road and about 100 feet of the shore line would be lost to the resort.

On cross examination the witness testified that the angles in'the description of the deed are not in keeping with the road and shore line. He stated they didn’t fit. He testified that he found two statements in the deed which were contradictory to each other and could not tell which was supposed to control.

A. W. Heavener, formerly a county surveyor of Camden County, testified that while the Red Diamond property was owned by a Mr. Bass he made a survey of it; that at the time of this survey there wasn’t anything there such as roads but the owner showed him where he was going to put a road; that neither the (then) roadway nor the bearings that he ran were along the present roadway bed, along the northerly part of the resort, but the bearings of the roadway he surveyed ran below the present road; that the owner was supposed to construct the road on the bearings shown in the deed and the road there now is not on that line, but the tool house would be near the end of the last course of the bearings. The line Heavener ran in 1945 or 1946 was supposed to be the center of the road but the present road is not on that line.

Frank H. Meissner qualified as an expert witness as to values of resorts on the Lake of the Ozarks. He testified that the Red Diamond Resort was worth $15,000.00 in 1958 if the north line was not the fence but ran south of the fence some 50 feet, as shown in the testimony of the surveyors. He stated if the line, as run by the surveyors, was the proper line it would be impossible to operate the property as a resort; that he got his information as to where the boundary lines approximately were from respondents; that they represented the line to be near the center of the road on the north side of the little house down there, the motor house. He gave this answer: “That is, right up in that area. There was no definite line established but is was along that fence line there, probably three or four feet, in that area.”

On cross examination witness admitted he pointed out the north boundary line as about the center of the road and at a point about two feet north of the little motor house.

The evidence is that after default by appellants in the second payment on the note, given for balance of purchase price, respondents foreclosed the deed of trust, bought in the real estate and now have title thereto.

Respondents’ evidence was that the gravel road south of the fence has been where it is now since 1936 and that the traveled portion thereof is some 8 or 10 feet wide.

Respondents’ evidence was that appellants operated the resort from July 1, 1958, to June 1, 1960. The Cannons admit there was a survey made by the Bingmans to determine the boundary of the lot reserved and that they executed a warranty deed to the Bingmans for this property.

The evidence shows that after the foreclosure and sale of the property appellants delivered to the respondents all the property, including the personal property, purchased from them.

The judgment of the court entered January 27, 1961, was a finding in favor of respondents and against appellants on their first amended petition dismissing the petition and for appellants and against respondents on the counterclaim.

In the trial of the case the court made this statement:

“You are just saying that since the defendants fraudulently misrepresented the lines and didn’t sell you the property that you thought you were getting you are entitled to have the deed set aside, the contract set aside, and your note set aside and for the money that you paid?”

To this statement appellants’ attorneys stated “That’s right”. Then the court stated: “Well, I think you are entitled to have this proof put in there. Of course, the thing the Court will have to decide when the case is over is where the true line is, ⅜ * * »

We are first met with respondents’ motion to dismiss appellants’ appeal because they utterly failed to make a fair and concise statement of facts.

Supreme Court Rule 83.05, V.A.M.R., in part, reads:

“(a) * * * The brief for appellant shall contain: * * * (2) A fair and concise statement of the facts without argument. * * *
“(c) Statement of Facts. The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. Irrelevant facts and testimony and mere formal matters should not be included in the statement.
If desired, such statement may be followed by a statement of testimony of each witness relevant to the points presented.
“(d) * * * The respondent in his brief may adopt the statement of facts of the appellant, or, if not satisfied therewith, he shall in a concise statement correct any errors therein. In other respects the brief of the respondent (to the extent necessary) shall follow the order of that required of the appellant.”

Under this contention respondents state they have made an additional statement of facts in their brief on the merits which is “slanted toward the evidence elicited from Appellants’ witnesses and which were an aid to Respondents’ defense, our theory being that a condensation of the two Statements of Facts would give a total and fair statement of facts.”

Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 100 [1, 3] stated this law; “ * * * A statement which omits the essential facts on which an appellant’s adversary relies does not comply with our rules. Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, 283 [3], * * * Plaintiff, proceeding under Rule 1.08(c), has supplied a statement giving us plaintiff’s view of the case and we are not required to search out for ourselves what is to be determined. In these circumstances, following precedent, plaintiff’s motion to dismiss should be and is overruled. See v. Wabash R. Co., [362 Mo. 489] 242 S.W.2d 15, 16 [1, 2]; Brown v. Citizens’ State Bank, 345 Mo. 480, 134 S.W.2d 116, 118 [1-3]; Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303, 304 [1, 2]; Nowlin v. Kansas City Pub. Serv. Co., Mo.App., 58 S.W.2d 324, 326 [6].” Tarantola v. Johnny Hemphill, Inc., Mo.App., 324 S.W.2d 379. The court, in the last cited case, page 380 [2] stated: “ * * * On this score the appellant’s brief appears to be somewhat deficient, but not enough for us to say that the appeal should be dismissed because of it.”

Following the rulings of the Supreme Court on the question presented here by respondents we hold that even though appellants’ brief may be somewhat deficient as to the statement of facts, yet the breach of the rule is not sufficient to require a dismissal of the appeal. We further find that if there was any failure to make a fair and concise statement of facts that error was corrected by respondents’ statement which, they admit, when considered with appellants’ statement constitutes a fair and concise statement of the facts.

Respondents contend that appellants failed to make timely delivery of their copy of the brief as required by Supreme Court Rule 1.09 (now 83.06). However, in their brief they state that if this court fails to sustain their motion to dismiss for lack of a fair and concise statement of facts, they do not desire to stand on the technicality of the second point so we will not consider this contention.

This being a case in equity for the rescission of a real estate contract it is the duty of the court to review the case de novo and, in doing so, this court will weigh competent evidence and reach its own conclusions as to the facts, giving due regard to the more favorable position of the trial court to judge credibility of witnesses. Euge v. Blase, Mo.Sup., 339 S.W.2d 807, 810 [1, 2]; Fisher v. Miceli, Mo.Sup., 291 S.W.2d 845, 848; Blanke v. Miller, 364 Mo. 797, 268 S.W.2d 809, 812 [1, 2]; Nixon v. Franklin, Mo.Sup., 289 S.W.2d 82, 88 [5],

In Johnson v. Duensing, Mo.Sup., 332 S.W.2d 950, 953 [1-3] the court, en banc, stated: “* * * While this is an appeal in an equity case and such appeal brings up the entire record for review and for hearing -de novo, yet the Court will ordinarily consider only the issues actually presented on appeal.”

In the instant case appellants charged fraud as the basis for the relief sought. The burden was upon them to prove their case by clear, cogent and convincing evidence. Euge v. Blase, supra, 339 S.W.2d page 810 [1, 2],

Under alleged error numbered II, it is contended that respondents were liable for the representations made to the appellants by their agent, Frank Meissner, as to the boundary line of the property since he was engaged in the performance of his agency, to-wit, effect of sale of respondents’ property.

Appellants cite Blanke v. Miller, 364 Mo. 797, 268 S.W.2d 809, to support this alleged contention. The facts in this case are similar to the facts in the instant case. The action was to rescind a real estate transaction, the sale and purchase of four lots, to cancel notes and deed of trust executed in part payment of the purchase price and recover partial payment actually made on the stipulated price. The trial court found that the brokers were agents of the vendors; that they had misrepresented the location of lots and that plaintiffs purchased the lots in reliance upon the misrepresentations. The trial court, in finding the owners liable, stated on page 813 [3-8] :

“ * * * In the circumstances, as they must be found, there can be no question as to the real estate company’s liability, Fleming v. Anderson, Mo., 232 S.W. 718, and the vendor-owners’ liability rests upon the most fundamental principle of agency that the vendor is liable for the misconduct of his duly appointed agent in effecting a sale, although the misconduct was without the vendor’s knowledge or consent. 55 Am.Jur., Sec. 85, p. 559; Wolfersberger v. Miller, 327 Mo. 1150, 1160, 39 S.W.2d 758, 764; Judd v. Walker, supra. [215 Mo. 312, 114 S.W. 979] * * ⅜ »

Wallo v. Rosenberg, Mo.App., 331 S.W.2d 8, cited, was an action to rescind a real estate purchase and for the recovery of $7,000.00 paid vendors on the purchase price for alleged misrepresentations of the premises, occupancy, expenses and rentals by the vendors’ agent-manager. There was involved in this lawsuit, among other things, the issue as to whether the sellers’ manager was authorized to make the representations to the buyers concerning the premises. On page 13 [3-6] of the opinion the court stated:

“ * * * It is well settled that there is no particular mode by which an agency must be established. It is necessary only that the credible facts, taken as a yhole, fairly disclose that one party is acting for or representing another by the latter’s authority. The relationship of agency is often to be implied from the words and conduct of the parties to the transaction, and it is not necessary that there be a formal appointment and acceptance thereof. * * * And, if there is agency, then the principal is bound if true representations as to the same matter are within the authority or apparent authority of the agent. See, Hawkins v. Laughlin, Mo.App., 236 S.W.2d 375; Restatement of the Law, Agency 2d, Art. 162, p. 384; Mitchum v. Dunlap, 98 Mo. 418, 11 S.W. 989; 2 C.J.S. Agency § 23, p. 1045.”

In the instant case respondents, in their answer, admit that Frank H. Meissner was their agent with whom they had listed their property for sale. Meissner testified that he did point out the north boundary line of the property to appellants when showing the same for sale. Respondent, Bingman, did not deny appellants’ testimony that he told appellants that at the time of the sale he knew the boundary line was in dispute. From all the facts and surrounding circumstances, we find there is clear and convincing proof on the part of appellants that respondents, acting through their agent, Meissner, represented to them that the north boundary line of this property was the fence; that appellants had no knowledge of their own as to where the boundary lines were and they solely relied upon respondents’ agent’s representations and were, by such representations, induced to enter into the contract for the purchase of said property. We think, under the Missouri authorities above cited, that if the representations of the .agent in negotiating this sale were false, respondents are liable for such misrepresentations whether they were made with or without their' knowledge or consent.

Under alleged error numbered III, it is contended that the representations made by the agent of respondents were false and made as an inducement to get appellants to purchase the resort property and were fraudulent.

This alleged error is actually an abstract statement of law. From the record and the judgment of the trial court, this court is actually unable to determine that the trial court found that respondents’ agent did not make misrepresentations as to the north boundary of the property, as claimed by appellants, and we are not in a position to say that the trial court did not find that the fraudulent representations did not induce appellants to enter into the contract. We have set out in the evidence a statement of the trial court which is found on page 164 of the transcript, in which he stated: “Of course, the thing the Court will have to decide when the case is over is where the true line is.” This would indicate that the trial court was trying the case on the theory that the burden was upon appellants to establish the true line constituting the north boundary of the property. We are of the opinion that the trial court was in error if he used this theory as a basis for his judgment.

To support this alleged error appellants cite Bank of Brumley v. Ballenger, Mo.App., 128 S.W.2d 647. The court stated on page 652 [1, 2] of the opinion:

“ * * * Thérefore, in order for defendants to recover in this action the burden rests upon them to establish by-proof that there was a false representation as to a material fact, known to be false by the plaintiff, or made recklessly without knowledge of its truth or falsity; that in the exercise of ordinary prudence defendants relied upon such false representation; and that they were thereby influenced to act to their damage. * * * ”

In Nixon v. Franklin, Mo.Sup., 289 S.W.2d 82, 88 (cited), the court stated: “The rule as to what will constitute fraud where representations as to title are involved is stated in Herman v. Hall, 140 Mo. 270, 41 S.W. 733, 734, as follows: ‘Of course, no one questions that a mere expression of an opinion that one’s title is good will not amount to a fraud even if it should turn out worthless, but it is equally well settled that a statement of a material fact for the purpose of inducing another to act upon it implies that the person who makes it knows it to exist and speaks from his own knowledge. If the fact does not exist, and the party states it as of his knowledge that it does, and induces another to act upon his statement to his injury, the law will impute to him a fraudulent purpose.”

In Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, 304 [10-12] (cited), the law is stated: “ * * * If ‘he states material facts as of his own knowledge, and not as a mere matter of opinion or general assertion, about a matter of which he has no knowledge whatever, this distinct willful statement in ignorance of the truth, is the same as the statement of a known falsehood, and will constitute a scienter!” * * * It is also true, in order to render a person liable in an action of deceit, the person allegedly deceived must trust to the false representation and act ‘on the strength of it’.”

We think these authorities properly declare the law as to the alleged misrepresentations in the instant case. Appellants testify that they were wholly unacquainted with the boundary lines of the property in issue; that they accompanied respondents’ agent, Meissner, who showed them the Red Diamond Resort, for the purpose of selling the same to them; that he pointed out the north boundary line of the property as a fence. They testified they relied upon the agent’s statement as to such boundary line and were induced to enter into a contract for the purchase of the property. Meissner’s testimony corroborates appellants’ testimony as to these representations. We think appellants’ testimony is clear, cogent and convincing that the north boundary line of the property was not the fence. The description in the deed executed by respondents (offered in evidence) to appellants pursuant to the contract to purchase does not contain the property as pointed out by Meissner to them. Two surveyors, one who had originally surveyed the dividing line between the Red Diamond Resort and the resort owned by Yorks on the north, took the deed and went on the land and ran the lines, as described in the deed, and their testimony shows that the north boundary line, as described in the deed, is not the fence as pointed out by Meissner, neither is it in the center of the present road but is far south of the present road; that the line as shown by the deed would deprive appellants of some 100 feet of shore line to the property purchased and make it unfit for use as a resort. The evidence is further that respondents knew there was a contention as to the boundary line between the Red Diamond Resort and the York property at the time the representations were made by their agent to appellants. We think the evidence is clear, cogent and convincing that the real estate agent’s representations as to the boundary line were not mere opinions but were statements of fact, were made to induce the sale of the property to appellants and that appellants acted upon such misrepresentations of fact to their injury.

The respondents offered evidence that for some thirty years the present roadway had been where it now is but the evidence of the surveyors was that the calls mentioned in the deed showing the boundary line to be in the center of the road were not meant to be in the present road but in a thirty foot road which was never established.

Appellants, in their brief, state that the only issue as to misrepresentations was whether or not respondents’ agent misrepresented the northern boundary line of the property and that the evidence is undisputed that he did.

We agree with this contention that the evidence is clear, cogent and convincing that respondents’ agent did misrepresent a material fact as to the northerly boundary of this property. From the agent’s testimony, under the facts as shown, the property was not worth more than $15,000.00 if the boundary line was where the surveyors testified it was. Under this testimony there can be no doubt but that it was a misrepresentation as to material facts.

We agree with respondents’ first contention that equity cases are tried in this court de novo. In our opinion we have stated the rule governing our duty in such cases, citing the authorities relied upon by respondents.

Under point II respondents state that since fraud was charged appellants had the burden to prove their case by convincing evidence and failure to prove any one essential element of fraud is fatal. Citing Euge v. Blase, Mo.Sup., 339 S.W.2d 807; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48; and Meyer v. Brown, Mo.App., 312 S.W.2d 158.

The law as declared in these authorities is found in Meyer v. Brown, supra, page 160 [2], which quotes from 37 C.J.S. Fraud § 3, page 215, as follows:

“ ‘Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8)His right to rely thereon. (9) And his consequent and proximate injury.’ ”

This rule of law has been cited with approval in many Missouri cases. Under the facts in the instant case we have stated that the evidence is clear and convincing that Meissner, agent of respondents, pointed out to appellants that the northern boundary of the property of respondents was the fence. We think this representation was practically admitted by respondents’ agent. Respondents did not testify. They did not deny appellants’ evidence that at the time the property was being shown for sale to appellants and at the time of the contract of sale they knew there was a dispute as to where the north boundary line between respondents’ property and that owned by the Yorks actually was. We hold that under the first requirement of fraud, to-wit, a representation, appellants’ evidence clearly shows there was such a representation whether willfully or recklessly made makes no difference. The falsity of the representation as to the north boundary of the property is shown by clear, cogent and convincing testimony on the part of appellants. Two engineers who surveyed the property testified that the north boundary line, as described in the deed, was not the fence, as represented by respondents’ agent, but was a point far south of the fence which deprived appellants of some 100 feet of shore line and made it useless as a resort.

Undoubtedly, the evidence is clear and convincing that the misrepresentation was material because it seriously affected the value of the property. Respondents’ agent, Meissner, testified that the property line, as shown by surveys, reduced the value of the property to $15,000.00.

We agree with appellants that respondents’ agent’s testimony shows he was ignorant of where the actual lines were. He testified that he pointed out generally where the north line was and then said “There was no definite line established, but it was along that fence line there, probably three or four feet, in that area”. We think this evidence on the part of respondents’ agent shows he was stating something to be a fact which he did not know to be a fact.

Again, we agree with appellants that the representation of respondents’ agent as to the boundary lines of the property undoubtedly shows he made the same with the intent that appellants would act thereon. He was trying to sell the property in order to earn a commission and there could be no other purpose in his pointing out the lines of the property to appellants other than the purpose of inducing them to buy it.

As to appellants’ ignorance of the falsity of the representations the testimony is clear, cogent and convincing that they had no knowledge whatsoever as to the boundary lipes of the property and relied strictly on respondents’ agent’s representations.

We have stated that the testimony was clear, cogent and convincing that appellants did rely upon respondents’ agent’s representation as to the north boundary line of the property.

The last of the requirements, to-wit, the right to rely on such representations and the subsequent and proximate injury is clearly shown by the evidence. There was a fence which would lead any reasonable person to believe it was the north boundary line of the property. It even made a circle at the east end thereof, enclosing a small tract of land 25 or 30 feet wide, which, at the time, was being used as a parking space. There was nothing present at the time of the showing of the property that would cause appellants to even suspicion that the fence was not the line, as pointed out by the real estate agent. So, under appellants’ evidence, we think the requirements of actionable fraud were met.

Respondents contend that appellants failed to tender the property and profits back and have failed to come into the equity court with clean hands. They cite Butler County, Mo. v. Campbell, 353 Mo. 413, 182 S.W.2d 589, and Reliable Life Ins. Co. v. Bell, Mo.App., 246 S.W.2d 371.

Butler County, Mo. v. Campbell, supra, was an equity action to set aside a deed on the ground of fraud. On page 592 of the opinion in 182 S.W.2d this law was stated:

“[5-8] * * * The allegations of the petition are also sufficient in respect to tender. ‘ * * * when the purpose of the action or cross-bill is cancellation it is not a condition precedent to the party’s right to maintain the action that he tender into court the consideration, he has received if he offers, in his petition, to make restitution or put the other party in statu quo. The condition precedent is upon the granting of the relief demanded and the court has the power to adjust the equities of the case and impose such terms as may be proper.’ Githens v. Butler County, 350 Mo. 295, 165 S.W.2d 650, 653; Green v. Security Mutual Life Ins. Co., 159 Mo.App. 277, 294, 140 S.W. 325. The facts stated in the petition are sufficient to constitute a cause of action in equity for equitable relief on the ground of constructive fraud.”

We note that at the end of the prayer of the petition these words were used “and plaintiff prayed for all other proper and-equitable orders”.

In the Bell case, supra, 246 S.W.2d page 376 [6], the court stated:

“Under the foregoing rule, plaintiff in this case was not required to deposit the premiums as a condition precedent to maintaining the suit. Plaintiff’s only obligation was to offer to do equity; to offer to restore defendant as far as possible to the position she occupied before the policies were taken out.”

In Veney v. Furth, 171 Mo.App. 678, 154 S.W. 793, pp. 802, 803 [5], [6], the court stated:

“Counsel for appellants claim that the petition is defective and fails to state a cause of action. We do not agree to this. Its facts may be defectively stated but it states a cause of action and a good one, of which a court of equity will take cognizance. All of the testimony was before the trial court and is before us. Not a suggestion was made during the progress of the trial that any of the testimony offered was out of line with the aver-ments of the petition in the case. Not a suggestion was made that the testimony offered in the case was not responsive to the issues tendered and, as said over and over again by our courts, following the direction of our statutes, these objections come too late when made in an appellate court. * * *
“ * * * If we correctly comprehend the position of counsel, it is that a tender before suit, or in the petition, an offer to pay whatever was due, should have been made. Neither is necessary. In the first place, respondents never admitted that they owed anything. In the second place, even on the theory of appellants, that something was due, the amount was entirely a matter of conjecture, certainly of dispute. In the third place, and conclusively against this claim, this is a suit in equity. In the petition, after praying for specific relief, plaintiffs pray for ‘such other and further relief as may seem just and proper in the premises. Plaintiffs further aver and state that they will comply with all orders, judgments and decrees of the court and will pay such amounts, if any, as the court may order, adjudge and decree to be due the defendants or either of them.’ This meets all the requirements of the case — that is — it is an offer to do equity. Neither a tender or plea of prior tender was necessary.” (Citing much authority.)

In the instant case plaintiffs testify that they have returned to respondents all the property received by them from respondents under the terms of the contract to purchase. While the evidence does show appellants entered into possession of the property July 1, 1958, and received $60.00 for reservations paid in advance, they testified that in the year 1958 they made no profits. The issue as to whether any profit was made in 1959 and up until June 1, 1960, when possession of the property was delivered back to respondents, was not before the trial court. Appellants never, at any time, admitted there was any such profit and respondents never even attempted to show such profit, neither did they show what would be a reasonable rental of such property during' the time.

The petition does pray for loss sustained as to profits and then states “that the Court make such further orders and judgments as shall be meet and proper in the premises.”

Since there was no showing in the trial that there were any profits retained or made by appellants in the operation of this resort and that all the property purchased was returned to respondents, we think the allegations in the petition were sufficient and we find against respondents under this alleged claim.

Respondents’ last contention .is that appellants, by their unreasonable delay in asserting claim against respondents and in bringing their suit, were guilty of laches and are not entitled to recover. To support this contention they rely upon Crawford v. Metropolitan Life Ins. Co., Mo.App., 167 S.W.2d 915.

In this opinion on page 922 [6] the -court stated: “Laches, which is purely a creation of equity, is quite different from the statute of limitations. And in this case, if the facts warranted, defendant’s ■ real complaint would have been laches, where the length of time of the delay has little to do with the matter. * * * The length of time may be much less or much more than the arbitrary time fixed by the statute of limitations; the crucial question where laches is charged being whether the opposite party has been placed in a disadvantageous position by reason of the delay. State ex rel. Edwards v. Donovan, 226 Mo.App. 392, 41 S.W.2d 842; St. Louis Union Trust Co. v. Busch, 346 Mo. 1237, 145 S.W.2d 426. In this case fortunately for both parties there is not a suggestion that a single witness has died or has removed from the locality, and not a record which defendant needed in the case has been lost or destroyed. The advantage of the delay, for all that appears from the evidence, has been in defendant’s favor in that it has retained money belonging to plaintiff for a much longer time than would have been permitted absent the delay.”

In the instant case, so far as the record is concerned, respondents have not been put to any disadvantage. They did have ample opportunity, which they did not exercise, to have had this property surveyed and the line determined, which is in dispute. They do not contend they are at a disadvantage because of the loss of any evidence. They do not dispute they have had the use of appellants’ money during the entire time and the court found against them on their crossbill as to alleged damages. We hold, under the authorities cited by respondents, against them on this contention.

We have pointed out that it is the judgment of. this court that the trial court was in error in the theory upon which he stated he must try the case, to-wit, that it was necessary for appellants to establish that the true line was the fence. We think the only burden that rested upon appellants was to establish there was a material misrepresentation as to the north boundary of the property in dispute. The record is so incomplete as to any earnings of this property during the time it was in possession of appellants or as to the reasonable value of rentals lost by respondents, if any, that we deem it necessary that for equity to be done this case be re-tried and we express the hope that the record in the retrial will be such that the court may have a fair understanding of the case. We think the trial court should be given the opportunity to determine whether or not respondents should have a deduction for the use of the property.

The cause is reversed and remanded for re-trial in accordance with the opinion herein expressed.

RUARK, P. J., and STONE, J., concur.


source: Caselaw Access Project

author: RUARK, Presiding Judge.'

license: Public Domain

text:
    H. E. NORMAN and E. E. Ross, Plaintiffs-Respondents, v. Rufus W. McLELLAND, Defendant-Appellant.
    No. 7978.
    Springfield Court of Appeals. Missouri.
    March 8, 1962.

      Hogan & Hogan, Robert E. Hogan, West Plains, William C. Jenkins, Mammoth Spring, Ark., for defendant-appellant.

      Green & Green, H. D. Green, West. Plains, for plaintiffs-respondents.
   RUARK, Presiding Judge.'

This is a suit for damages based upon the failure of defendant to comply with the terms of an option for the sale of land.From an adverse jury verdict awarding damages to plaintiffs in the sum of $4,000, the defendant has appealed.

The option agreement involved, given for “one dollar and other valuable considerations,” was dated November 24, 1959, described the land, gave plaintiffs the option for six months “from date hereof” at $15 per acre, “and first party agrees, to furnish deed conveying above land with Abstract of title covering the above land', and title to be marketable. If not ask (sic) to furnish title within said period then this option is null and void.” The agreement was signed and acknowledged (incidentally, before separate notaries) by the parties.

The petition charged that defendant Mc-Lelland was the owner of 1000 acres of land in Oregon County; that for valuable consideration he gave the plaintiffs Norman and Ross the written option as above stated; that within the period of said option they deposited the full purchase price ($15,-000) in the Bank of Alton and notified defendant both orally and in writing of the exercise of such option, but that defendant breached such agreement by failing to give deed or furnish an abstract showing marketable title; and by reason thereof they were damaged in the sum of $4,000.

Defendant’s answer admits that he signed the “purported option agreement” but states that it was not the true agreement, inasmuch as, on November 20, 1959, (this was before the written instrument was executed) he told plaintiffs he would give them a 60-day option; that when the instrument was presented to him he sighed it without reading it, and his signing it was the result of a wicked and 'fraudulent scheme; further, that after he discovered the mistake he talked with the plaintiffs about it, and they, verbally agreed to consider the option null and void.

According to the evidence, including defendant’s testimony, plaintiffs approached the defendant for the option and there was some discussion about their attempting to find a buyer. They (plaintiffs) were “pretty sure” they could'find a buyer. Mr. Norman said he thought he had a buyer from Louisiana, and, “Well, I offered it for Sale.” Defendant could read and write, had on his glasses, took the paper in his hand, looked at it, and had ample opportunity to read it but says he did not do so. No trick or artifice was practiced. Afterward defendant acknowledged the instrument and kept a copy.

Defendant contended and so testified that afterward he discovered the option was for six months instead of 60 days as he had intended; that he,went to the plaintiffs separately and they verbally agreed to consider the option as null and void. This is denied by both plaintiffs, and if this amounted to a cancellation of the agreement (the court permitted defendant to submit it), we must take the jury’s verdict as foreclosing it.

After the option was signed, the plaintiffs cast their net, incurred expense (in an amount not shown), made calls, got in touch with possible buyers in various places, including Louisiana, showed the land to men from Blytheville, Arkansas, and Memphis, and finally induced two men from Texas to come and be shown over the land. This apparently was on or near to May 14, 1960. The Texans indicated interest in the land and stayed over Sunday and until Monday afternoon. Plaintiffs told the prospective purchasers that they expected to make some money on the deal, and the prospective purchasers agreed that was all right with them. Sunday night plaintiffs went to see McLelland and told him they thought they were going to get the place sold and that the purchasers had asked until Wednesday night to give a definite answer. Defendant testified, “Oh, I believe Mr. Ross spoke, of $5,000, going to send $5,000 to bind their trade.” At that time defendant told plaintiffs, “Well, I have sold off two hundred acres of it,” but “it hasn’t went through yet.” He said he would go see the man to whom he sold it and he thought he could get it back. Thereafter plaintiffs completed an agreement (apparently partly in oral conversation, by correspondence, and by phone call) to sell the land to “the Texas men” for $19,000. On Wednesday the plaintiffs got a call from the prospective purchasers stating they were ready to do business. On the next day plaintiffs went to defendant, told him the purchasers were ready to do business, and asked him if he had made his arrangements to get the land (the 200 acres) back. At that time he said that “he didn’t aim to” and “flatly refused” to go ahead with the option. This defendant admits. On May 21, 1960, plaintiffs mailed to defendant a registered special delivery letter, stating that arrangements had been made at the Alton bank to pay for the land in compliance with the option after title was examined. The following day the defendant refused to accept delivery of the letter from the postmaster. We will credit him with being facetious in the reason he offered, i. e., “Well, I wasn’t supposed to get a registered letter from anybody. It might have had a bomb in it, just might have had a missile in it.” There is some evidence that along about this time defendant went out of town to one place but told people he was going to another place. He first testified he had no recollection of it, but in another instance:

“Q. Why did you tell Mr. Crews you were hiding out? Why did you tell Mr. Crews that if you thought the option had run out?
“A. Just a joke, I guess:

Asked if he had asked one Doug Geering ■“to get in touch with these men in Texas and stall them off until after the option time,” h.is answer was, ‘T might have "done that.”

Plaintiffs produced the deposition of the “Texas men,” who testified that they owned some property jointly and intended to purchase this land jointly; that they looked at the land and agreed (with plaintiffs) to pay $19,000 in cash and were in position to do so; that title was to be examined and if title was marketable they were to pay the purchase price upon delivery of deed; that the deal fell through because, plaintiffs notified them the owner refused to go through with it. “We kept the matter open for a while to give them [time] to work it out. Finally Mr. Ross told us that the deal would have to be called off because the owner of the land would not go through with the deal.”

“Q. If the deal had gone through were you ready, able, and willing to comply with the terms of the contract and pay $19,000 cash for the one thousand acres of land?
“A. Yes, sir, subject to good title we were willing and able to close the deal and ready to pay cash if they had delivered us the deed.”

There was no evidence from either party as to the market value of the land other than as above stated.

Suit was filed on June 11, 1960.

The first assignment is that there was no evidence to support a verdict assessing plaintiffs’ damage at $4,000, because there was no evidence to show that plaintiffs had ever concluded an enforceable contract for the sale of the land, for the reason the prospective purchasers’ obligation to perform was conditioned upon the acceptance of title by a particular attorney.

To support this contention the appellant cites cases dealing with contracts wherein the determination of title, and hence enforceability of the agreement, is left to the sole judgment of one certain person. In so doing appellant skips over the first part of his -premise, i. e., that plaintiffs could not recover damages unless they actually had a binding and enforceable contract with their buyers. He cites no cases in support of such premise and we do not find the law to be such when applied to the facts of this case.

No question has been raised in regard to pleadings or reception of evidence, and no contention has been made as to whether special damages were involved. Without wandering too far down the trail in respect to the recovery and measure of damages, we refer again to the fact that, by the testimony of both parties, the option was given and accepted with the understanding that the plaintiffs were to attempt to find buyers, and that this was the end result within the contemplation of the parties. The uncontradicted evidence is that plaintiffs did find buyers ready, willing, and able to pay in cash the full purchase price, subject only to delivery of marketable title, and the evidence is sufficient to justify a finding that defendant was not in good faith as regards performance. This transaction failed of consummation, not because the plaintiffs did not (if in fact they did not) have an ironclad contract with the prospective purchasers, but because, according to defendant’s own testimony, (a) he voluntarily put it out of his power to convey title and (b) he flatly refused to proceed further with the deal. Under these circumstances we think that the plaintiffs were entitled to recover for what some cases and texts refer to as “the loss or value of their bargain” or “the value of their contract.”

The agreement in question, although it took the form of an option contract, was, in the contemplation of the parties, a broker’s contract, and such option contracts which are in substance brokers’ contracts are at least related to brokers’ contracts by the courts. See Mitchell v. Philippi, 359 Mo. 754, 223 S.W.2d 441. Actual tender of the purchase price or other action necessary to “wrap up” the transaction on the part of plaintiffs or their assignees was not necessary where, because of defendant’s refusal, it became plain and obvious that such action would become a useless gesture. Cooper v. Mayer, Mo., 312 S.W.2d 127, 130; Frank A. Gilbert Realty Co. v. Timmerman, Mo., 183 S.W.2d 131, 133. Hence it would appear to us that where the evidence shows that the option holder had in good faith a purchaser or purchasers ready, willing, and able to pay an agreed sum, and the transaction failed because of the refusal of the owner to comply therewith, and not through any unwillingness or inability of the option-holding purchasers or the would-be purchasers from the option holders to proceed, the loss to the option holders by breach of the contract, the loss of the bargain, has been established.

Nevertheless, for the purpose of this opinion we will accept appellant’s premise, assume that it was necessary that there be a binding contract of resale, and examine the contention that the resale was conditioned upon the acceptance of title by a particular attorney.

It is true that the parties may by their contract make the performance conditional upon the determination of some fact or question by a third party, and if such appears to be the actual intent of the parties as evidenced by the contract, it is of course binding. School District of Kirksville v. Mississippi Valley Trust Co., Mo. App., 116 S.W.2d 146, 149; Ives v. Crawford County Farmers’ Bank, 140 Mo.App. 293, 124 S.W. 23; Thompson v. Dickerson, 68 Mo.App. 535, 539. The leading case on this appears to be the Kirksville case, supra, where the determination of the validity, of a bond issue (a specialized practice not too familiar to the ordinary practicing attorney) was left to a certain attorney who found questions raising such doubt as to destroy marketability. These questions were later resolved by the courts ‘in favor of validity. Nevertheless, the court held that, since the parties agreed to accept this attorney’s judgment, the condition was a part of the contract.

But unless it clearly appears from the contract that the examining party is to have the power to exercise arbitrary judgment, the person so acting cannot exercise such judgment in a way which is arbitrary, capricious or in bad faith. In other words, he couldn’t declare a title, plainly marketable, to be unmarketable, and thus relieve either of the parties from the duty to consummate. Cummins v. Dixon, Mo., 265 S.W.2d 386, 393(5); P. R. T. Inv. Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315, 318; Knisely v. Leathe, Mo., 178 S.W. 453, 458 (5).

In ordinary circumstances, and in the absence of contrary agreement, there is an implied obligation on the part of the vendor to furnish a marketable title (Wiemann v. Steffen, 186 Mo.App. 584, 172 S.W. 472; Hirlinger v. Hirlinger, Mo.App., 267 S.W.2d 46, 49, 44 A.L.R.2d 1207; McPherson v. Kissee, 239 Mo. 664, 144 S.W. 410), not such a title as will necessarily comply with unwarranted requirements of the buyer’s attorneys. As we interpret the evidence, all the would-be purchasers wanted in this case was a good and marketaable title. One of them said, “I told him we would buy the 1000 acres and pay $19,-000 and pay cash for it subject to examination and approval of title.” The other testified, “Mr. Ross was to bring the abstract of title to Breckenridge where we would have our attorney examine it. If the title was good and marketable we were to pay the money at the time a deed of conveyance was delivered to us for the land. The whole thing hinged on it being a good title.” We fail to find anything in this transaction which delegated to á third person the arbitrary power of life and death over the contract regardless of whether the title was actually good or bad. True, the buyers were going to take the abstract to their own attorney for examination. This is the usual and common practice. The buyer takes the abstract to his attorney “to be passed on.” If he does not at some time in the proceedings state that title is to be “subject to my attorney’s approval,” it would be unusual. The usual practice then is for the attorney to point out any defects, and, if such are correctible within a reasonable time (in absence of special provisions as to time)', the seller is allowed such time to correct them and deliver the deed. Bunyard v. Farman, 176 Mo.App. 89, 161 S.W. 640; Lumaghi v. Abt, 126 Mo.App. 221, 103 S.W. 104, 107. We believe that the conversations here related are not different from those commonly used in transactions of this kind, and we believe that such conversations did not amount to a limitation of the offer or agreement, as the case may be, so that the conclusion of the transaction was subject to the arbitrary rejection by the purchasers’ attorney. And even though this were true, there is nothing to indicate that the good title which defendant contracted to convey would have been so rejected. On the.contrary, .since the defendant contracted to deliver good title, we think it fair to assume that in all probability, had he done so, such title would have been accepted and the transaction completed.

The remaining contentions deal with plaintiffs’ sole (given) instruction, which hypothesized the fact that defendant granted plaintiffs an option to purchase the tract within six months' at $15,000; that the consideration for such agreement was that plaintiffs were to attempt to find parties who would purchase during the option period; that plaintiffs spent time and money in an endeavor to find buyers; that plaintiffs exercised their option of purchase within the six months’ period and were ready, willing, and able to carry out its terms by the payment of the sum of $15,000 upon defendant’s furnishing a deed conveying the land, with an abstract of title; that plaintiffs notified defendant of exercise of such option, and that defendant failed and refused to comply with its terms and failed to furnish deed of conveyance or abstract; that as a direct result of such, plaintiffs have been damaged; and (on such finding) the instruction authorized a verdict for plaintiffs and allowance of such sum as the jury might find plaintiffs had been damaged as a direct result of the breach of the option agreement.

The first complaint is that the instruction failed to hypothesize and require a finding, as an essential element of plaintiffs’ case, that the defendant was given a reasonable time to comply with the plaintiffs’ demand. This could have been an essential element had that been any issue in this case (see cases supra), but here all the évidence shows that the allowance of a reasonable time was not involved. The defendant did not permit the transaction to get that far. According to plaintiffs’ evidence, “he said he flatly refused” to go ahead with the option. “Just sue me.” According to the defendant, “I said, ‘This six month option has already been declared null and void and you can’t claim deeds from me,’ and I said, T won’t sign a deed.’ ” It was after this that plaintiffs’ registered letter containing written' demand was refused. The question of reasonable time to comply was not an issue in the case. It should not be necessary to hypothesize a conceded fact. Welch v. McNeely, Mo., 269 S.W.2d 871, 877; Meade v. Kansas City Public Service Co., Mo., 250 S.W.2d 513, 515.

The final assignment is that the instruction did not give the jury any instruction as to the measure of damages and that it amounted to a roving commission.

True it is that the measure of damages is for the court to declare, not for the jury to guess at. Instructions in tort actions are often given with directions to the jury to award such damages “as you find from the evidence will reasonably compensate him for such injuries and disability,” et cetera. And such general submission of damages is not precluded in contract cases. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643, 652. The defendant did not request any instruction on the measure of damages.

The general rule is that if a submission contains no misdirection and is good as far as it goes, but is general in its terms, then if the opposite party desires further clarification or limitation in the instruction, it is his duty to offer a qualifying instruction.

But, assuming that the instruction was erroneous, it would appear that under the evidence in this case and the condition of this record, the amount of damages found, $4,000, was the only amount which could have been found. There was no evidence from which any other amount could have been arrived at. Hence, in any event, the instruction resulted in no prejudice.

The judgment is affirmed.

McDOWELL and STONE, JJ., concur.

      . Krepp v. St. Louis & San Francisco Ry. Co., 99 Mo.App. 94, 103, 72 S.W. 479; Kirkpatrick v. Downing, 58 Mo. 32; Hartzell v. Crumb, 90 Mo. 629, 638, 3 S.W. 59, 61; Young v. Raupp, Mo.App., 305 S.W.2d 731; Wilt v. Water-field, Mo., 273 S.W.2d 290; 55 Am.Jur., Vendor and Purchaser, § 555, p. 948; § 566, p. 959; 48 A.L.R. 12, anno.; 68 A.L.R. 137, anno.; 92 C.J.S. Vendor and Purchaser § 593, p. 647; 25 C.J.S. Damages § 43, p. 519, et seq.

      . Green v. Ditsch, 143 Mo. 1, 44 S.W. 799, 802; Jamison v. Van Auken, Mo., 210 S.W. 404, 414; Wiemann v. Steffen, 186 Mo.App. 584, 172 S.W. 472, 474; Kling v. A. H. Greef Realty Co., 166 Mo.App. 190, 148 S.W. 203, 205.

      . Doll v. Purple Shoppe, 230 Mo.App. 256, 90 S.W.2d 181, 186; Rhodes v. Holladay-Klotz Land & Lumber Co., 105 Mo.App. 279, 79 S.W. 1145, 1155.

      . Martin v. Kansas City, Mo., 340 S.W.2d 645, 650; Rush v. Hollingsworth, Mo.App., 89 S.W.2d 535, 536; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, 1082, cert. den. Atchison & Eastern Bridge Co. v. Clark, 290 U.S. 701, 54 S.Ct. 229, 78 L.Ed. 693; Luikart v. Miller, Mo., 48 S.W.2d 867, 870.

      . Crivello v. Kline, Mo.App., 290 S.W. 86; Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Davis v. Kansas City Public Service Co., Mo.App., 223 S.W.2d 1, 7, and cases there cited, aff. 233 S.W.2d 669; Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., Mo.App., 210 S.W.2d 700, 705; Ross v. Wilson, 236 Mo.App. 1178, 163 S.W.2d 342, 348; Luikart v. Miller, Mo., 48 S.W.2d 867; Martin v. Kansas City, Mo., 340 S.W.2d 645, 650.

      . Doll v. Purple Shoppe, 230 Mo.App. 256, 90 S.W.2d 181, 186; Gaty v. Sack, 19 Mo.App. 470, 477; Wm. S. Merrill Chemical Co. v. Nickells, 66 Mo.App. 678, 687; Shinn v. United Railways Co. of St. Louis, 248 Mo. 173, 154 S.W. 103, 106; Heil v. St. Louis, Iron Mountain & Southern Ry. Co., 16 Mo.App. 363, 369.


author: DOERNER, Commissioner.

text:
    REDDI-WIP, INC., a Corporation, and Development Research, Inc., a Corporation, Plaintiffs-Respondents, v. LEMAY VALVE COMPANY, Inc., a Corporation, Lemay Machine Company, a Corporation, and Fred Suellentrop, Sr., Defendants-Appellants, and Fred Suellentrop, Jr., Nuera Plastics, Inc., Western Rubber Company, and Pres-Pak Valve Corporation, Additional Defendants-Appellants.
    Nos. 30562, 30563, 30637.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied and Opinion Modified April 2, 1962.

      Lusser, Morris & Burns, Rene J. Lusser, St. Louis, George J. Mager, Clayton, for defendants-appellants.
    Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, Jerome A. Gross, St. Louis, for respondents.
   DOERNER, Commissioner.

Plaintiffs brought this action in equity seeking an injunction to restrain the defendants from making, using or selling certain dispensing valves, for an accounting, and for other relief. On April 30, 1958, the-court entered an interlocutory decree by which the defendants were enjoined, an accounting was ordered, and a Special Master appointed to take the same. On November 12, 1959, plaintiffs waived the accounting, and the interlocutory decree became a final judgment from which the defendants appealed. While the interlocutory decree was still in effect plaintiffs, on September 25, 1959, filed a motion alleging that the defendants and the additional defendants had violated it by manufacturing and selling such valves, and asking that they be cited for contempt. A hearing was held on November 12, 1959, and on February 24, 1960, the court entered its order finding the defendants and the additional defendants guilty of contempt, and assessing fines against them in varying amounts. After unavailing after-trial motions, the defendants and additional defendants duly appealed. By agreement of all parties the appeals were consolidated for briefing and argument.

The valves which are the subject of this litigation are those frequently found in pressurized containers of fluffed products, such as whipped cream and shaving cream, the contents being dispensed when the tube or stem is tilted sideways. The idea for such a valve originated with Aaron S. Lapin as early as 1942. In 1947, Lapin, assisted first by an engineer named Tomasek, and subsequently by defendant Fred Suel-lentrop, Sr., the president and owner of defendant Lemay Machine Co., began the development of what will be referred to as the Tomasek valve, the first of which was satisfactorily assembled about February 1948. The component parts of the Tomasek valve consisted of a container top or mounting cap; a tubular, tiltable stem, having a valve head at the lower end; a rubber grommet or seal;' and a metal spring designed to restore the stem to an upright position when-the sideways pressure applied to tilt it was; removed. An application for a patent was applied for in Tomasek’s name on September 27, 1948, all interest in the invention was assigned to plaintiff Reddi-Wip, Inc., a corporation formed by Lapin and his asso-ciatés, and that company became and is the owner of the patent on the Tomasek valve, No. 2,615,597, which was issued on October 28, 1952.

Following the successful development of the Tomasek valve, Lemay Machine, and subsequently a new corporation formed by Suellentrop for the purpose, St. Louis Valve Company, Inc., received orders for such valves from Reddi-Wip, purchased the component parts from suppliers, assembled the valves, and sold them to Reddi-Wip. This relationship continued until Reddi-Wip decided to set up its own assembly plant, and to employ St. Louis Valve to supervise and manage the same, subject to its direction and control. To that end a written contract was entered into between the parties on July 11, 1949, the pertinent terms of which will be later discussed.

Prior to the execution of that contract Lapin had been working on the development of a springless valve in which the rubber grommet was designed to serve both as a seal and as the spring to restore the stem to an upright position. An application for this valve, hereafter called the Lapin valve, was filed by Lapin on May 2, 1949, assigned to Reddi-Wip, and ultimately resulted in the issuance to it on March 15, 1955, of Patent No. 2,704,172. During the same period in which Lapin was developing the Lapin valve, Suellentrop, unknown to Lapin, was also developing a springless valve, which will be referred to as the Suellentrop valve, for which he applied for a patent on June 30, 1949. In the course of the negotiations for the employment contract of July 11, 1949, Lapin learned from Suellentrop that the latter had applied for a patent on his valve, and there was incorporated in that agreement a provision requiring Stiellen-trop to assign his invention to Reddi-Wip. Suellentrop did so, by an assignment dated July 27, 1949. Sullentrop’s application was not pressed, and no patent was ever issued thereon.

In accordance with the contract of July 11, 1949, St. Louis Valve supervised and managed the assembling of Tomasek valves for Reddi-Wip and its licensee, plaintiff Development Research, Inc., until June 28, 1951. On that date the parties executed a written agreement modifying the contract, by which Reddi-Wip dispensed with the supervisory and management services of St. Louis Valve, but agreed to pay the latter the original minimum compensation of $2,-000 per month until July 11, 1954, the expiration date of the original contract. The evidence is clear that after June 28, 1951, none of the defendants herein, or St. Louis Valve, acted in a supervisory or managerial capacity for plaintiffs. In fact, the only relationship shown was that until December 1956, Lemay Machine on occasions made repairs to machinery and equipment used by Development Research in the assembling of Tomasek valves, and sold the latter various supplies.

On July 2, 1956, Suellentrop filed an application for a patent on a springless type valve. On December 12, 1956, he filed another application on the same type, both of which applications were pending at the time the trial was held. Sullentrop then formed the defendant corporation Lemay Valve Company, Inc., of which he owns all of the shares, and in May 1957 began in a small way to manufacture and sell the so-called Lemay valve, which was covered by his application of December 12, 1956. Plaintiffs instituted this action on June 28, 1957. Between May 1957 and the date of trial, February 27, 1958, Lemay Valve Co. assembled approximately a half million of the Lemay valve. Jack W. Soffer, president of Development Research, testified that his company continued to assemble and sell an improved spring-type or Tomasek valve until the trial, at the rate of several million a month, that it was not yet in commercialized production of the springless or Lapin valve, and that up to the week preceding the trial the entire production of the Lapin valve only amounted to about 200,000 valves.

Plaintiffs’ petition was in two counts, on both of which the court found in favor of plaintiffs. The essential allegations of the cause of action pleaded in Count I was that a confidential relationship had existed between the plaintiffs and defendants, in the course of which defendants had acquired knowledge of plaintiffs’ trade secrets relating to its dispensing valves; and that in violation of the obligations imposed on them by virtue of such confidential relationship, defendants were unfairly competing with plaintiffs by utilizing plaintiffs’ trade secrets in the manufacture and sale of defendants’ valves. In the prayer plaintiffs asked that defendants be enjoined * * * from making, using or selling the particular valves now being manufactured, used and sold, or any other valve embodying any of the details of construction or any of the trade secrets utilized in Plaintiffs’ valves,” for an accounting of profits and award of damages, and other relief. Defendants denied generally the material allegations in Count I of plaintiffs’ petition.

The court found that a confidential relationship had existed between plaintiffs and defendant Suellentrop, and declared the law to be that: “ * * * By the confidential relationship existing between plaintiffs and defendant Suellentrop and Lemay' Valve Company, Inc., during 1948 and 1949, defendants are precluded from utilizing, for their own benefit and in competition with the plaintiffs, any of the information disclosed to them pursuant to said confidential relationship, particularly the principles underlying the valve structure of the valve disclosed to and manufactured by Lemay Machine Co. for Reddi-Wip in 1948 and 1949, and including the springless modification thereto developed in the spring of 1949.” (While of no great consequence, it is apparent that in speaking of the;confidential relationship which existed between plaintiffs and defendant Lemay Valve Co. during 1948 and 1949 the court undoubtedly intended to refer to either the Lemay Machine Company or the St. Louis Valve Company rather than to the Lemay Valve Company, for the evidence is undisputed that the latter company was not incorporated until February 20, 1957). By the interlocutory decree the defendants were enjoined permanently from directly or indirectly manufacturing, selling or using a valve for pressure containers “Embodying, in whole or in part, the same or substantially the same, device or combination of devices, or any of them, as those disclosed * * * ” in the Tórnasele valve, the Lapin valve, and the Suellentrop valve, an accounting was ordered, and a Special Master appointed to take the same.

The basis of the cause of action pleaded in Count I is the rule that one who uses another’s trade secret, without a privilege to do so, is liable to the other if his use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him. Restatement, Torts, Sec. 757; Call-mann on Unfair Competition and Trade Marks, Vol. 2, Sec. 51; Ellis on Trade Secrets, Sec. 1. This general rule has long been recognized and followed in Missouri. Luckett v. Orange Julep Co., 271 Mo. 289, 196 S.W. 740; Godefroy Mfg. Co. v. Lady Lennox Co., Mo.App., 134 S.W.2d 140; Germo Mfg. Co. v. Combs, 287 Mo. 273, 229 S.W. 1072, 209 Mo.App. 651, 240 S.W. 872. In one of the cases cited by plaintiffs, Smith v. Dravo Corp., 7 Cir., 203 F.2d 369, 373, it is said that the essential elements of such a cause of action are: (1) the existence of a trade secret, (2) communicated to the defendant, (3) while he was in a position of trust and confidence, and (4) use by the defendant to the injury of the plaintiff. The term “trade secret” is defined in the Restatement, Torts, Sec. 757, Comment b, as “* * * any formula, pattern, device or compilation of information, which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. * * * ” While the courts sometime refer to the rights of “property” which a discoverer has in his trade secrets, Godefroy Mfg. Co. v. Lady Lennox Co., supra (a term which Mr. Justice Holmes called “ * * * an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. * * * ” E. I. DuPont de Nemours Powder Co. v. Masland, 244 U.S. 100, 102, 37 S.Ct. 575, 61 L.Ed. 1016) the rationale for the imposition of liability is the users “ * ⅜ * employment of improper means to procure the trade secret, rather than the mere copying or use. * * * ” Restatement, Torts, Sec. 757, Comment a.

Inasmuch as the first essential element of such'a cause of action is the existence of a trade secret, the courts have generally held that a disclosure of the trade secret, by legitimate discovery by a competitor or voluntarily by the original discoverer, will defeat liability. For an instance in which liability was denied because of legitimate discovery on the part of a competitor see Godefroy Mfg. Co. v. Lady Lennox Co., supra. The discoverer may voluntarily disclose his trade secrets by offering his product for sale, for as said in the Restatement, Torts, Sec. 757, Comment b: “ * * * Matters which are completely disclosed by the goods which one markets cannot be his secret. * * * ” And while an application to patent a discovery is not of itself a general disclosure, and hence a release of the obligation of a confidential disclosee, Sandlin v. Johnson, 8 Cir., 141 F.2d 660, 661, it was said in that case that “ * * * If a discovery is one which constitutes invention and for which a patent is issued, the right of further secrecy is, of course, lost, for a legal disclosure and public dedication have then been made, with a right of limited and temporary monopoly granted as the reward. See Grant v. Raymond, 31 U.S. 218, 242, 6 Pet. 218, 8 L.Ed. 376; Shaw v. Cooper, 32 U.S. 292, 320, 7 Pet. 292, 8 L.Ed. 689; Gayler v. Wilder, 51 U.S. 477, 10 How. 477, 497, 13 L.Ed. 504.”

In the instant case, while the court in its declaration of law referred to the confidential relationship which existed between plaintiffs and defendant Suellentrop and his company “during 1948 and 1949,” we are inclined to the view that such relationship continued during the time the defendants were actively engaged in a supervisory and managerial capacity under the contract of July 11,1949, and perhaps to the termination of that contract on July 11, 1954. However, in any event it appears from plaintiffs’ own evidence that the patent which had been applied for on the Tomasek valve was granted on October 28, 1952, and on the Lapin valve on March 15, 1955. The evidence further showed, and the court also found, that Sullentrop did not begin the development of the Lemay valve until 1956, and that Lemay Valve Co. did not start to manufacture and sell the Lemay valve until May 1957. Not only had all confidential relationship between plaintiffs and defendants long since ceased by the latter date, but whatever trade secrets may have been revealed to the defendants during the time that relationship existed had long since been fully disclosed by plaintiffs by the issuance to them of the patents on the Tomasek and Lapin valves.

Plaintiffs cite a line of cases holding that one who has learned the discoverer’s trade secrets while acting in a confidential capacity will be denied the right to avail himself of such information even though the discoverer has revealed such secrets to the world. See Smith v. Dravo Corp., 7 Cir., 203 F.2d 369; Franke v. Wiltschek, 2 Cir., 209 F.2d 493; A. O. Smith Corp. v. Petroleum Iron Works Co. of Ohio, 6 Cir., 74 F.2d 934. In some of such cases, as in Smith v. Dravo, supra, there was present an element of improper means or bad faith by the defendant, a factor totally lacking in the instant case. In general, the doctrine upon which that line of cases rests was declared by Judge Learned Hand as one for which “ * * * we can find no support in principle. * * * ” Conmar Products Corp. v. Universal Slide Fastener Co., 2 Cir., 172 F.2d 150, 156. We are of the opinion that the rule applied in Smith v. Dravo, supra, is not applicable to a case where, as here, defendants’ knowledge of plaintiffs’ trade secrets was acquired during a normal, albeit confidential relationship, which has long since ceased, and the use of the alleged trade secrets occurred a substantial length of time after their voluntary disclosure by the issuance of patents to plaintiffs. See Ellis Trade Secrets, Sec. 161; Sandlin v. Johnson, 8 Cir., 141 F.2d 660; Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632; Pennington Engineering Co. v. Houde Engineering Corp., 2 Cir., 136 F.2d 210. For the reasons stated, plaintiffs were therefore not entitled to relief under Count I of their petition.

The essential allegations in Count II of plaintiffs’ petition are that Reddi-Wip developed a “springless valve” for dispensing fluffed or whipped products; that “On or about July 27, 1949, for good and valuable consideration, Defendants Fred Suellentrop, Sr. and Lemay Machine Co. transferred and assigned to Reddi-Wip, Inc. all their interests in and to the said springless valve and in and to any improvements thereon, pursuant to a contract dated July 11, 1949, by which defendants agreed not to manufacture, assemble or sell said springless valve”; and that the defendants were manufacturing, using and selling valves “ * * * embodying the features * * * ” of said springless valve, in violation of said assignment and said contract. The prayer was for the same relief as that asked in Count I. Defendants’ answers consisted, in effect, of general denials.

Although they did not raise the point below, defendants now claim on appeal that the court was without jurisdiction because plaintiffs’ cause of action in Count II constituted a complaint of patent infringement, the jurisdiction over which is exclusively vested in the United States District Court. Having raised that vital issue, which if correct would be decisive of our jurisdiction, defendants content themselves with a reference to the applicable Federal statute 28 U.S.C.A. § 1338, but do not cite a single authority in support of their proposition. The cases dealing with the subject are numerous, many of them are difficult to reconcile, and in some situations the question may not admit of an easy answer. See Walker on Patents, Deller’s Ed., Vol. 3, Sec. 411-414. The test laid down in one of the leading and oft-cited cases on the problem, Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 18 S.Ct. 62, 42 L.Ed. 458, is that to constitute an action arising under the patent laws of the United States the plaintiff in his petition must set up some right, title or interest under the patent laws, or at least make it appear that some right or privilege will be defeated by one construction, or sustained by the opposite construction, of those laws. Plaintiffs’ petition does not meet this test. They do not allege therein, directly or indirectly, that defendants are infringing their patents. In fact, there is not the slightest reference in Count II of their petition (or, for that matter, in Count I) to the patents held by plaintiff Reddi-Wip on the Tomasek and Lapin •valves. Had plaintiffs alleged in substance in Count II that defendants were infringing their patents by making and selling the Lemay valve there would be merit to defendants’ contention that the court did not have jurisdiction, even though the construction of Suellentrop’s assignment and the •contract of July 11, 1949, might also have keen involved. Littlefield v. Perry, 21 Wall. 205, 22 L.Ed. 577. But for the purposes of their action under Count II plaintiffs chose to treat the Tomasek and Lapin valves as -unpatented products. The basis of their •claim is breach of contract, not patent infringement, and the court had jurisdiction.

As to that part of their cause of action under Count II based on Suellentrop’s .assignment of the Suellentrop valve, plaintiffs’ theory is that although the assignment contained no express clause prohibiting Suellentrop from making and selling Suel-lentrop valves, there was implicit in it an implied agreement on his part not to do so. The rule contended for may be the law, although the only case cited by plaintiffs, Temco Mfg. Co. v. National Electric Ticket Register Co., 223 Mo.App. 420, 18 S.W.2d 142, does not support their contention. Assuming, however, that the rule is as stated by plaintiffs, the implied agreement would be one in restraint of trade, to be strictly construed, and Suellentrop would thereby be prohibited from making only the same valve disclosed in his application. The evidence showed that while the Lemay valve consists of the same component parts as the Suellentrop valve there are marked structural and functional differences between them. Structurally, neither the stem nor the grommet of one is interchangeable with the other. The valve head on the stem of the Suellentrop valve is flat, as is the grommet, and the seal is thus formed by two flat surfaces being pressed together. In the Lemay valve the valve head is tapered or conical in shape, as is the grommet, so that the valve head is pressed into the grommet in the same way that a tapered peg is pressed into a hole. In the Suellentrop valve the flow communication spaces to the parts in the stem are molded into the grommet. In the Lemay valve, the flow communication spaces are molded partly into the grommet and partly into the stem. The most marked difference between the two valves, however, is functional, or in the manner in which the sealing result is obtained. In the .Suellentrop valve the gas pressure within the container is depended upon to force the valve head against the rubber grommet to achieve the seal. In the Lemay valve the sealing action is not dependent upon the gas pressure, but is achieved by compressing the rubber grommet in the process of assembling the valve, which pre-stressing holds the valve head tightly against the grommet. Thus structurally and functionally the Lemay valve differs from the Suellentrop valve.

Plaintiffs pleaded in Count II that by the assignment Suellentrop had assigned not only his interest in the Suellentrop valve, but also his interest “* * * in and to any improvements thereon * The assignment did not contain such a provision, and all that Suellentrop assigned was the invention “* * * as the same is disclosed in said application * * The law is clear that an assignment of a specified invention does not by implication include a promise to transfer future inventions covering improvements thereon, nor any competing invention. Williston on Contracts, Rev.Ed., Sec. 1643A, pp. 4614, 4615. Ellis on Patent Assignments, Sec. 126; Monsanto Chemical Works v. Jaeger, D.C., W.D.Penn., 31 F.2d 188, affirmed and opinion adopted, 3 Cir., 42 F.2d 1018; Lamson v. Martin, 159 Mass. 557, 35 N.E. 78; General Time Corp. v. Padua Alarm Systems, 2 Cir., 199 F.2d 351; Eastman Kodak Co. v. MacLeester, 3 Cir., 75 F.2d 825. It follows that by making and selling the Lemay valves the defendants did not breach an implied contract prohibiting them from manufacturing and selling the Suellentrop valve, and that the assignment furnished no basis of relief under Count II.

Plaintiffs’ second string to their bow under Count II is that by making and selling the Lemay valve defendants Suel-lentrop and Lemay Machine breached clause (b) of paragraph 13 of their contract of July 11, 1949, which reads:

“13. In consideration of this agreement, Second Parties agree jointly, individually and severally, as follows:
“(a) That they recognize the validity of the patents or pending patents of the Reddi-Wip valve, and such other valves as from time to time shall be furnished to the Valve Company by Reddi-Wip, Inc., for assembly.
“(b) That they will not manufacture, sell or assemble directly, or indirectly, Reddi-Wip valves for any competitor of Reddi-Wip, Inc., nor any other valve for use in pressure container food packages during the life of this agreement.”

It was plaintiffs’ position below that the Suellentrop valve was substantially the same as both the Lapin valve and an improvement thereof called the Development Research valve. What we have said regarding the structural and functional differences between the Lemay valve and the Suellentrop valve is therefore equally applicable to the Lapin and Development Research valves. But in any event we cannot accept the construction of clause (b) placed on it by plaintiffs and adopted by the court. Plaintiffs contend that the final, relative phrase of clause (b), “during the life of this agreement,” modifies only the immediate antecedent clause, and that by the first antecedent clause there was no limitation of time within which defendants were prohibited from manufacturing Reddi-Wip valves. Defendants argue, conversely, that the relative clause modified both antecedent clauses, and that the prohibition was to extend only during the life of the contract, which was five years.

In support of their contention plaintiffs refer to the “last antecedent” rule, discussed in Isaac T. Cook Co. v. Bank of St. Louis, Mo.App., 297 S.W.2d 607, 610, but as was there pointed out, that .rule is merely an aid to construction and will not be adhered to where a remote antecedent is clearly intended. In order to ascertain the intention of the parties as of the time they executed the contract consideration must be given not only to the language and grammatical construction of the provision in dispute, but also to the subject matter of the contract and the circumstances which surround its execution. Ruysser v. Smith, Mo., 293 S.W.2d 930; Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131. Primarily, the agreement was a contract of employment, by which Reddi-Wip employed St. Louis Valve “* * * to supervise the assembly of Reddi-Wip valves at Reddi-Wip Assembly Plant #1 * * * ” under “* * * the direction and control of Reddi-Wip, Inc. * * *” In fact, basically it was a contract for the employment of Suellentrop, for the contract required that Suellentrop act as the general supervisor of St. Louis Valve and gave Reddi-Wip the option to terminate the contract if he ceased to serve in that capacity. At the time the contract was executed no patents had been granted Reddi-Wip on its valves, and though application therefor had been made, there was no assurance when, if ever, they would be issued. Any competitor, including Suellentrop and St. Louis Valve, was therefore free to manufacture or sell Reddi-Wip valves, subject only to a suit for infringement if (but only if) such patents were ultimately issued. Walker on Patents, Deller’s Ed., Vol. 3, Sec. 450, p. 1682; Gayler v. Wilder, 51 U.S. 477, 10 How. 477, 13 L.Ed. 504. If the purpose of clause (b) had been to prevent the defendants from forever making Reddi-Wip valves there would have been no reason to have added the words “for any competitor of Reddi-Wip, Inc.” We think the intention of the parties was not to forever prohibit the defendants from competing with Reddi-Wip, but to restrain them from making dispensing valves, Reddi-Wip or any other kind, for competitors of Reddi-Wip during the term of the contract.

Furthermore, in the light of plaintiffs’ petition, to construe clause (b) as contended for by plaintiffs would render that provision unenforceable, and probably illegal. As pointed out, this is not an action for infringement, but one to enjoin the breach of a contract restricting the manufacture of an unpatented article. As such it is a bargain in restraint of trade, Restatement, Contracts, Sec. 513, for it is a restriction on defendants’ right to compete with Reddi-Wip, including their .right to copy and sell valves similar to its, so long as defendants do not palm off their valves as those of plaintiffs. Restatement, Torts, Sec. 757, Comment (a). If the agreement not to compete is not qualified as to time, as plaintiffs contend, then it is unreasonable and unenforceable. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S.W. 355, affirming 83 Mo.App. 6; Prentice v. Rowe, Mo.App., 324 S.W.2d 457; Renwood Food Products v. Schaefer, 240 Mo. App. 939, 223 S.W.2d 144. It would likewise appear to conflict with our statute on agreements in restraint of trade, Section 416.040, RSMo 1949, V.A.M.S. See Temperato v. Horstman, Mo., 321 S.W.2d 657.

The final question on appeal is whether the court erred in adjudging the defendants and the additional defendants guilty of contempt. During the course of the hearing, presided over by a judge other than the one who had heard the case on its merits, defendants sought to introduce in evidence letters patent No. 2,852,168 which had been issued to Suellentrop on the Lemay valve on September 16, 1958, after the rendition of the interlocutory decree. The court sustained plaintiffs’ objections to their admission, and found the defendants and additional defendants guilty of contempt. We have reached the conclusion that the court erred in refusing to admit defendants’ letters patent in evidence, and in holding that the defendants and additional defendants violated the decree. As pointed out by plaintiffs on another point in their brief, the decree in the instant case is similar to that involved in Temco Mfg. Co. v. National Electric Ticket Register Co., 223 Mo.App. 420, 18 S.W.2d 142, and, we may add, the essential facts' are likewise similar. Regarding the effect of a patent it was there said (18 S.W.2d 142, l. c. 145):

“* * * The grant of a patent to accomplish certain specified results indicates that the patent office considered the means of accomplishing such results to be different from the means of accomplishing the same results as specified in a former patent, and raises the presumption that they are in fact substantially different. * * *”

Inasmuch as the defendants’ evidence in the hearing on contempt showed that letters patent had been issued on the Lemay valve, the issue was then squarely presented whether the Lemay valve infringed on the Lapin valve or the Tomasek valve. Not only does that issue belong in another forum, as we have pointed out, but as stated in the Temco case, 18 S.W.2d 145 : "* * * The question of infringement is not to be determined on motion to punish for contempt. * * *”

For the reasons stated, the judgment and decree, as well as the order adjudging defendants and additional defendants guilty of contempt, should he reversed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment and decree and order adjudging defendants and additional defendants guilty of contempt is reversed.

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