author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Louis THOMPSON, Appellant.
    No. 52006.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 8, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, McCormick V. Wilson, Special Ass’t. Atty. Gen., Jefferson City, for respondent.
    Hildebrandt & Smith, Wayne C. Smith, Jr., and David W. Bernhardt, Springfield, for appellant.
   FINCH, Judge.

Defendant, charged with attempted robbery in the first degree, was convicted by a jury and sentenced to imprisonment for seven years. He appeals from that judgment.

An information charging attempted robbery was filed March 30, 1961, under §§ 560.120 and 556.150. Thereafter, on August 28, 1961, an amended information was filed and defendant was tried on October 30 and 31, 1961. He was found guilty and sentenced to imprisonment for twenty years. No appeal was taken, but on December 19, 1963, defendant filed a motion to vacate the judgment and sentence pursuant to Supreme Court Rule 27.26, V.A.M.R. Said motion was overruled by the trial court but on appeal this court held that the amended information charged a different and distinct offense (assault with malice with a dangerous and deadly weapon with intent to rob under § 559.180) from that charged in the original information. This court vacated the original judgment and sentence and remanded the case for further proceedings on the original information or otherwise as the State might elect, but directing that the defendant could be tried only on a charge of attempted robbery. State v. Thompson, Mo., 392 S.W. 2d 617.

The decision of this court on the prior appeal was rendered on July 23,1965. After remand, defendant, on September 13, 1965, filed a motion to dismiss the charge and to discharge the defendant on statutory and constitutional grounds for failure to receive a speedy trial. The trial court overruled the motion to dismiss. Thereafter, defendant was tried and the jury fixed his punishment at imprisonment for seven years. The trial court ordered that defendant be given credit for 150 days on account of donation of blood while he was in prison and for 197 days spent in jail prior to sentence, or a total credit of 347 days.

The questions presented by defendant on appeal are (1) there was no evidence to support a conviction of the crime of attempted robbery, first degree, and defendant was entitled to a judgment of acquittal at the conclusion of all the evidence; (2) the court erred in overruling defendant’s motion to dismiss because he had been denied a speedy trial, and (3) the court committed error in failing to credit defendant with time spent by defendant in jail or in prison.

The evidence on behalf of the State would support the following recital of facts: On the evening of March 23, 1961, Murrel-dean May Archer went to a Safeway Store at State and Campbell in Springfield, Missouri, to purchase groceries. She took the groceries to her home and then drove back to the Dutch Maid Laundromat which was adjacent to the Safeway Store. She had her laundry and her purse when she went into the laundromat. She placed her purse on a chair at the end of the table on which she was working. She washed her clothes and then put some in the dryer and started to starch her husband’s shirts.

As Mrs. Archer was starching the shirts and had put a shirt in the wringer for that purpose, the defendant came in the back door. There had been two other persons in the laundromat when Mrs. Archer first went in but meanwhile they had left. Defendant went by Mrs. Archer toward the front of the building and then came back, grabbed her by the shoulder and spun her around, saying “This is a robbery.” He had a knife in his hand at the time. Mrs. Archer screamed and defendant then stabbed her with the knife. She started fighting with him and trying to get away from him. She testified that the act of defendant in grabbing her and spinning her around, her scream, the stabbing and her struggles “were almost instantaneous.” Mrs. Archer said she could not say if defendant made any move for her purse while they were fighting.

Mrs. Archer finally succeeded in breaking loose and ran out the front door of the laundromat, screaming as she went. She did not look back to see the defendant or how long he remained in the laundromat. She ran out into the street, screaming, “Please stop. Somebody help.” A Mr. Tarbutton, who was driving by, stopped. Mrs. Archer told him that she had been stabbed and she wanted him to go back into the laundromat to get her purse. When he declined, Mrs. Archer went in and got it, and then Mr. Tarbutton drove her to the police station. It was ascertained that nothing had been taken from the purse.

Defendant testified. He conceded that he was in the laundromat that night and had stabbed Mrs. Archer, but denied that he intended to rob her or that he went to her purse where it was laying on the chair, although he stated he had seen it there before the difficulty with Mrs. Archer.

Was there evidence to support the conviction of the crime of attempted robbery in the first degree? Defendant says not, for the reason that there was no evidence that he reached for the purse, or touched it, or attempted to take anything out of it. Consequently, there was no evidence of an attempted larceny, an essential element of a robbery. He argues further that Mrs. Archer apparently knew that he had made no attempt to take her purse or its contents because she went back into the laundromat to get her purse and did not even check its contents when she came out. This conduct, he says, is wholly inconsistent with any attempt on the defendant’s part to take the purse or its contents.

If we were to adopt defendant’s reasoning we would establish the rule that proof of an actual physical move to take possession of property of the intended victim would be necessary to support a conviction of attempted robbery. Necessarily, we would say that even though the would-be robber stated, “Stick ’em up” or “This is a robbery” or “Give me your money,” and accompanied his statement by force or putting the victim in fear, still he would not be guilty of attempted robbery if there was no evidence of a physical move to take possession of property. If defendant was frightened away or was apprehended before making any move to reduce the money or property to actual possession, he could not be guilty of attempted robbery, if we follow defendant’s argument to ' its logical conclusion. We do not agree. The jury could find from what occurred that defendant did intend to take property from the person or in the presence of Mrs. Archer. He spoke words at the time expressly stating that purpose. He grabbed her and exhibited a knife and used it when she screamed and resisted. The jury could find that when defendant observed he had stabbed her and she ran out into the street, bleeding and screaming for help, he concluded that he had better absent himself quickly, and that the robbery was not consummated for that reason. We do no violence to logic when we attribute to defendant’s actions and words exactly the meaning and character with which defendant himself described them at the moment they were performed. We attach no special significance to the fact that Mrs. Archer subsequently wanted to return and get her purse and did not check its contents when it was retrieved. She was wounded and excited, even terrified, and it is not reasonable to expect that when she wanted to and did not retrieve her purse, she had coldly analyzed that “my purse is still there and I know the contents are not disturbed because defendant made no move to actually take the purse.”

In the cases of State v. Scott, 332 Mo. 255, 58 S.W.2d 275, 90 A.L.R. 860, and State v. Newman, Mo., 289 S.W. 831 both cited by defendant, this court upheld convictions of attempted robbery. In Scott, four men came into a room at the rear of a restaurant where a dice game was in progress. They had handkerchiefs over their faces and their hat brims were pulled down, and one said, “Stick ’em up.” One of the players by the name of Robinson reached down and took $16 or $17 in silver from the table and put it in his pocket. One of the four would-be robbers shot Robinson in the chest and he fell, after which the robbers fled without any move to actually take possession of money or property. In Newman, three men entered a drugstore. When the druggist went to wait on one of them, the man extended a revolver across the counter and told the druggist to “Stick ’em up.” The druggist stepped back, drew a gun and he and the man exchanged fire, after which he and a companion ran from the store. The druggist then assisted another clerk in the store who was struggling with a third would-be robber. He was subdued and held until the police came. There was no evidence of any effort on the part of the three men actually to take possession of money or property in the drugstore.

In neither of these cases did the court enter into a discussion of the nature of the charge or the presence or absence of evidence that the men made efforts physically to take possession of money or property, but in both cases the court sustained convictions of attempted robbery in the first degree. Defendant seeks to distinguish both cases. With reference to Scott, the only difference which defendant seems to point out is that the $16 or $17 were in plain sight on the crap table but there was no evidence that the robbers tried to take possession of the cash. Defendant recognizes that in Scott there was in fact an attempted taking or larceny. We fail to see where there is any real basis for distinction between the evidence in that case and the evidence against this defendant.

Defendant also recognizes that the State made a case of attempted robbery in Newman. In discussing it, defendant emphasizes the fact that the place where the attempted robbery occurred was a place of business and that there could have been no purpose other than robbery. The record before us in this case discloses no other purpose either. We fail to perceive any real distinction. In all these cases (Scott, Newman and this case) the defendant displayed a weapon, stated positively that it was a holdup or robbery or that the victim should “Stick ’em up.” Thereafter trouble arose, a shooting or stabbing occurred, and the would-be robber or robbers ran without any further move to actually touch or reach for property or reduce property or money to physical possession.

Defendant relies also on State v. Vandament, Mo., 299 S.W.2d 532, in which this court overturned a conviction for attempted robbery in the first degree. An examination of the opinion clearly discloses that the taking was from cabinets in the tavern, not in the presence of or from the person of anyone. The assault occurred in connection with escaping after the taking of the money. One defendant testified as to a conspiracy to rob the place, but the court held that this later statement and the assault which occurred in connection with escaping after taking the money did not relate back and convert a prior larceny into robbery. The case is not analogous.

Defendant also cites the cases of State v. Brown, Mo., 245 S.W.2d 866, and State v. Hagerman, Mo., 244 S.W.2d 49. These cases however, involve charges of assault with a dangerous or deadly weapon with intent to rob. Both convictions were affirmed. Neither case is any authority for the proposition that there was not sufficient evidence in this case to support a conviction of the defendant herein for attempted robbery in the first degree.

Our second question is whether defendant’s motion to dismiss and to discharge on the basis of deprivation of statutory and constitutional rights to a speedy trial should have been sustained. Defendant relies on §§ 545.890, 545.900 and 545.920 of the statutes, Art. I, § 18(a) of the Constitution of Missouri of 1945, and the Sixth Amendment to the Constitution of the United States.

Defendant’s position is that although the original information was filed March 30, 1961, there was no effort to get the case to trial on that information until August 30, 1965. During that time, says defendant, three terms passed each year (more than the number specified in §§ 545.890, 545.900 and 545.920) and hence defendant did not receive a speedy trial on that charge and he is entitled to discharge under the above-mentioned statutory provisions as well as under the state and federal constitutional provisions which guarantee speedy trials.

The original information was filed March 30, 1961. Thereafter, at defendant’s request, the case was remanded to the magistrate court for a preliminary, hearing, which was held May 4, 1961. Defendant was bound over to the circuit court, and thereafter the amended information was filed August 28, 1961. He was tried and convicted on the amended information on October 30 and 31, 1961, and sentenced to imprisonment for twenty years. His motion for a new trial was overruled on November 17, 1961. No appeal was taken, and defendant was imprisoned pursuant to the judgment and sentence. Nothing further occurred until December 19, 1963, when defendant filed in the Circuit Court of Greene County his motion to vacate under Supreme Court Rule 27.26, V.A.M.R. The motion was heard and overruled in the trial court and defendant appealed to the Supreme Court. On July 23, 1965, this court filed an opinion vacating the judgment and sentence, and our mandate was filed in the Circuit Court of Greene County on August 10, 1965. The trial court then released previously appointed counsel and appointed present counsel for defendant. After various motions and orders, including the order overruling defendant’s motion to dismiss and to discharge for failure to receive a speedy trial, defendant was tried on November 29 and 30, 1965. This is an appeal from that conviction.

We consider that what this court said in State v. Hadley, Mo., 249 S.W.2d 857, 862, is pertinent: “ * * * there has been no delay by the state in the sense that the state has ever been slow or reluctant to prosecute. On the contrary, the delay is wholly due to the belated discovery of a fatal error in the record of the first proceeding, which, it is true, sufficed to entitle defendant to relief from the sentence and judgment which had been pronounced upon him, but only to the point of remanding him back into custody to await further proceedings according to law. In other words, the ultimate situation is no different than if he had appealed from the first judgment upon the same ground that he later advanced in habeas corpus, and had secured a reversal of the judgment. The offense of which he is now convicted is the identical offense with which he was charged in 1930; and at every moment of the period during which he was imprisoned under the first judgment, the courts were open to him for the redress which he obtained as soon as he invoked his remedy. There has been no denial of defendant’s constitutional right to a speedy trial.”

There is a difference between Hadley and this case, as defendant points out. In Had-ley the offense of which defendant was convicted at the later trial was the identical offense with which he had been charged and convicted back in 1930. In this case the second conviction is for attempted robbery in the first-degree, as charged in the original information, where as the first conviction was for assault with malice with a dangerous and deadly weapon with intent to rob under the amended information. However, we do not consider that this distinction dictates any different result. This still was a single case. There were not separate charges in different cases pending against defendant at the same time. As Judge Eager stated in the prior Thompson appeal, 392 S.W.2d 617, 622, the original information was simply suspended during the proceedings on the amended information.

Fundamentally, there is no real difference in the situation here than that which existed in Hadley. In each an error was committed in connection with the first conviction, but it was corrected by the Supreme Court on the first occasion when the question was presented to it by defendant. That merely entitles defendant to a new trial. The delay involved does not entitle defendant herein to be discharged without a retrial for the same occurrence in the same case on the original information (on which the Supreme Court said he should have been tried in the first instance). The fact that the original conviction was not appealed and that the original judgment was not attacked until the 27.26 proceeding was instituted was not due to inaction on the part of the State. This delay is attributable to defendant. The State could not proceed to try defendant on the original information while he was under sentence on the amended information in the same case. Meanwhile, the original information remained suspended, not having been quashed. State v. Thompson, supra, 392 S.W.2d 1. c. 622. The fact that the prosecuting attorney made a mistake in amending the information to charge defendant with a violation of a different section of the statutes but arising out of the same occurrence should not entitle defendant to discharge for failure to receive a speedy trial, any more than he should be so entitled if the State commits some error in an earlier trial such as offering evidence not properly admissible or tendering an incorrect instruction.

The reason for the statutes and the constitutional provisions relied on by defendant is to prevent the State from allowing a charge to remain dormant without giving defendant an opportunity to defend himself and to have his case tried. What happened here is not the type of occurrence toward which these safeguards are directed. See State v. Hicks, 353 Mo. 950, 185 S.W.2d 650, 651. The State did not fail in this case to accord defendant a prompt trial.

Defendant cites three cases in support of the proposition that failure to receive a speedy trial entitled him to have the case dismissed and to be discharged. None, in our judgment, is a basis for granting relief. In State v. Wear, 145 Mo. 162, 46 S.W. 1099, the defendant had been indicted for murder and subsequently had been released and discharged under a section of the statute (the predecessor of present § 545.900) by reason of the fact that three terms had expired without a trial when the delay was not excused under the terms of the statute. Subsequently, defendant was indicted again and convicted, but the Supreme Court held that the prior release and discharge could be pleaded in bar to prosecution under the second indictment. We do not have before us the question of the effect of a prior discharge under one of these sections of the statutes.

In State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189, there were indictments against the defendant in St. Charles County, St. Louis County and the City of St. Louis. He was tried and convicted in the City of St. Louis but not sentenced. Thereafter, he was tried, convicted and sentenced in St. Charles County and served that sentence. Upon release, he was sentenced in St. Louis on the first conviction and served his time. Upon the discharge from the latter imprisonment, St. Lotiis County sought to proceed with the indictment remaining in that county. At that time, one could not be placed on trial' while he was under sentence in another case until after he had served the sentence. The Supreme Court held that after he had completed service of the sentence in the St. Charles County case, he could have been tried in St. Louis County before he was sentenced on the conviction in the City of St. Louis. When he was not, the statute requiring speedy trial ran and the defendant was entitled to be discharged, on motion, for failure of the State to prosecute promptly. Here, again, it is obvious that the factual situation in Wurdeman is not analogous to that in the case now before us.

On the basis of the cited constitutional provisions guaranteeing speedy trials, defendant cites and relies on the case of Petition of Provoo, D.C., 17 F.R.D. 183. It involved the prosecution of a soldier for treason while he was a prisoner of war after being taken prisoner at the fall of Corregidor. He was indicted in the Southern District of New York in 1949 and tried and convicted in 1952-1953. On appeal that conviction was reversed. The court held that he had been “found” in Maryland, not in New York, and hence there was not venue in New York. When he was indicted in the District Court in Maryland in 1954, the court found that the government had made a deliberate choice to proceed in New York for a supposed advantage discussed in the opinion, and that such deliberate choice of venue caused oppressive delay and damage to the defendant. It would serve no useful purpose to discuss that case at length. In our judgment, the situations are not at all analogous and the Provoo case is not authority for the proposition that the motion of the defendant herein to dismiss and to discharge should have been sustained.

Defendant’s final contention is that the court erred in failing to credit him with the full time he had been in jail or prison preceding the trial.

Defendant’s first proposition in connection with this contention is that the court either abused or failed to exercise its discretion, contrary to § 546.615. Paragraph (1) of that section makes it mandatory that the defendant receive credit for time in prison or jail subsequent to the date of his sentence and prior to delivery to the state department of corrections, but that paragraph is not involved in this contention. Defendant relies on paragraph (2), which is as follows:

“546.615. When a person has been convicted of a criminal offense in this state
“(2) The time spent by him in prison or jail prior to his conviction and the date on which sentence is pronounced may, in the discretion of the judge pronouncing sentence, be calculated as a part of the term of the sentence imposed upon him.”

It will be observed that the credit under this paragraph is discretionary rather than mandatory. When defendant was sentenced pursuant to the jury verdict, the trial judge, as previously indicated, allowed a credit of 347 days. This was done under the discretionary power granted in the above-quoted paragraph of the statute. At that time counsel for defendant also requested the trial court to allow as additional credit the rest of the time defendant was imprisoned following the conviction in 1961, but the trial court declined to give this additional time, electing to leave the net sentence at just slightly in excess of six years. We cannot say that the trial court abused or failed to exercise its discretion, and we decline to do so.

The only case cited by defendant in this connection is State v. Grant, Mo., 380 S.W.2d 799. It involved reversal and remand for the purpose of granting allocution and merely stated that the trial court in pronouncing formal judgment should give defendant credit for such jail or prison time as would be just and proper under § 546.-615. It did not direct the giving of credit or seek to control the discretion of the trial judge, and it is not authority for the action which defendant would have us take herein.

Defendant also complains that the sentence from which this appeal was taken constitutes cruel and unusual punishment, in violation of Art. I, § 21 of the Constitution of Missouri of 1945 and the Eighth Amendment to the Constitution of the United States. No cases are cited in support of this contention.

As a general rule, these constitutional provisions have reference to the statute fixing the limits of punishment for an offense, not to what is done within those limits by the court or jury in a particular case. See 15 Am.Jur., Criminal Law, § 526, p. 174. Defendant complains that the aggregate of time spent in the penitentiary under the first sentence and the seven-year term imposed at the second trial exceeds the maximum ten-year sentence allowable under the statute, but the net sentence fixed by the trial court, which was just a few days in excess of six years plus time spent in the penitentiary before the prior judgment was vacated, does not exceed ten years, and hence there is no need for us to reach this question for decision. We hold that the sentence from which this appeal is taken did not constitute cruel and unusual punishment.

We have examined other matters of record pursuant to Criminal Rule 28.02, V.A. M.R., and find no error.

The judgment is affirmed.

All of the Judges concur.

      . All statutory citations are to RSMo 1959, V.A.M.S., unless otherwise indicated.

      . Both the original and amended informa-tions are set out in that opinion and are not repeated here.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Ernestine KAHN, Plaintiff-Appellant-Respondent, v. William J. PRAHL, d/b/a J. A. Prahl Contracting and Building Co., Defendant-Appellant-Respondent, v. FAIRELL, INC. (Formerly Wabash Drilling Company), Third-Party Defendant-Appellant-Respondent.
    No. 52139.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court Bn Bane Denied May 8, 1967.

      Walter S. Berkman, St. Louis, and Roberts P. Elam, Clayton, for appellant, Ernestine Kahn.
    Barnard, Timm & McDaniel, St. Louis, for appellant-respondent, William J. Prahl, d/b/a J. A. Prahl Contracting & Building Co.
    Heege & Heege, Clayton, for third party defendant-appellant-respondent.
   HIGGINS, Commissioner.

Ernestine Kahn, as plaintiff, sued her general contractor, defendant William J. Prahl, doing business as J. A. Prahl Contracting and Building Co., for $50,000 damages for breach of contract; Prahl, as third-party plaintiff, sued his subcontractor, third-party defendant Fairell, Inc. (formerly Wabash Drilling Company), for the amount of any judgment which might be entered against him on plaintiff’s petition. A jury found the issues for plaintiff and assessed her damages at $50,000, and the court declared a mistrial. On November 22, 1965, plaintiff moved to set aside the declaration of mistrial and for reinstatement of the verdict and, on December 17, 1965, the court sustained that motion, set aside its declaration of mistrial, reinstated the jury verdict, and entered judgment for plaintiff against Prahl for $50,000 and for Prahl against Fairell in the same amount. Motions for new trial of Prahl and Fairell were sustained and all parties have appealed.

Plaintiff alleged that on September 12, 1957, she, as owner, and Prahl, as contractor, entered into a general contract for construction of an 18-family apartment building in accordance with plans, drawings, and specifications prepared by architect Cay Weiiiel; that she agreed to pay and did fully pay the contract price; that the specifications required that all holes for construction of concrete piles or piers be “drilled to refusal,” and that the bases of said ¿liles or piers be “belled” or widened; that such holes were not “drilled to refusal,” and the piles or piers were not “belled,” and that í’rahl thereby breached the contract; that as a result of the breach, the piles or piers Were unable to support their designed building weight, were caused to sink unevenly below the levels to which their holes were drilled resulting in cracking and sagging of walls, tiling, floors, and ceilings in varibus parts of the building, to plaintiff’s damage in the amount of $50,000.

Prahl, in answer, admitted the contract and specifications, denied the alleged breaches, and alleged that all drilling was done in accordance with plans and specifications.

Prahl, as third-party plaintiff, alleged that on September 23, 1957, he, as general contractor, and Wabash, as subcontractor, entered into a subcontract for Wabash to furnish labor and equipment for machine drilling of the pier holes, including belling according to the plans and specifications in the general contract; that if the pier holes were not drilled to “refusal” and the piers were not “belled” as required by the plans and specifications, thus rendering Prahl liable to plaintiff, then Wabash, as third-party defendant, was liable to Prahl as third-party plaintiff for the amount of Prahl’s liability to plaintiff.

Fairell, in answer to Prahl’s third-party petition, admitted that, while known as Wabash Drilling Company, it entered into the subcontract with Prahl, alleged full compliance with the contract, and denied liability to plaintiff or to Prahl.

Ernestine Kahn, aided by her son, Charles Kahn, employed Cay Weinel, an architect, to prepare all plans and specifications for an 18-family apartment building to be located on her property at 800 South Hanley Road, Clayton, Missouri. The building was a 3-story and basement, “]” shaped, reinforced concrete, fireproof building, located on the east side of Hanley Road, with the wings or arms of the “]” projecting to the west. A basement garage extended to the west beyond the westernmost wings and was covered with earth for a lawn.

The construction contract, executed September 12, 1957, by Mrs. Kahn as owner and Prahl as contractor, required the contractor to “furnish all of the materials and perform all of the work shown on the Drawings and described in the Specifications * * *' and addenda #1 and addenda #2 prepared by Cay Weinel, Architect, * * * and * * * do everything required by this Agreement, the General Conditions of the Contract, the Specifications and the Drawings” for $400,447.50, not including some 17 items such as air conditioning, plumbing, wiring, fixtures, oak flooring, terrazzo, appliances, etc. The specifications provided : “All drilling for piles shall be included by the Contractor,” and “Piles are to be constructed and reinforced in accordance with Engineering Drawings.” Addenda #1 provided: “The average depth of the drilled piles from the top elevation given on the drawings to the bottom shall be 15'-0",” and “A Unit price per foot shall be given for any additional average depth or credit for lesser depth.” The first floor framing plan in respect to piles provided: “20. Piles to be drilled to refusal.”

The foundation plan was prepared by the architect and by Louis Krasner, a structural engineer. It called for 170 piers or piles to be drilled and provided: “Unless Noted Otherwise All Piles Under Walls to be 18" 0 with 6 — #5 (vert.) 0 #2 ties at 18" c.c. Piles to be belled where shown. Unless indicated otherwise — bells to be 30" 0. (52 thus) under walls.” The foundation plan also denoted typical 18" piles with no bell by small circles, and typical 18" piles with 30" bells by similar small circle surrounded by a larger concentric circle. Some of the piles were shown to be of 24" diameter with 42" bell. The bell at the bottom of the pier or pile is a flaring or broadening of the base to provide additional support. The details section of the foundation plan shows typical exterior wall and garage column sections, with the former carrying the legend: “See fdn. (foundation) plan for piles to be belled & size of bells.”

By the subcontract between Prahl and Wabash, Wabash agreed to furnish Prahl with “labor and equipment for machine-drilling foundation piers for Ernestine Kahn Apartment located at 800 South Han-ley Road according to plans or directions by Cay Weinel, Architect * * * price ($2380) to include machine-drilling and machine-belling for foundation piers according to plans and specifications and Addendum No. 1.” Unit prices were also stated for 18" and 24" piers.

Prior to letting the general contract to Prahl, plaintiff employed Wabash to perform test drilling and the results were given to Mr. Prahl and to the architect.

The building was completed and ready for occupancy about November 1, 1958. About two and a half months before that, Mr. Prahl observed that one of the piers in the garage underneath the lawn had sunk; it ultimately sank approximately seven inches and the garage ceiling sagged the same amount. At that time, Charles Kahn “began to notice cracks in nearly every apartment throughout the entire building, cracks in the hall, terrazzo stairways, in the garage, sinking of piers * * * »

The E. F. David House Moving Company, specializing in moving, shoring and underpinning buildings, was consulted by plaintiff in July or August 1963. Inspection was made by Lloyd M. Davids, a registered engineer. He noted cracks in the brickwork and inner partitions, distortion in the garage ceiling, plaster cracks, and foundation cracks. He found the building “to be settling as a result of a condition of the subsurface material below the footings,” and concluded “there was insufficient resistance of the subsoil materials below the footing elevation.” That company recommended and installed 13 concrete piers “to sustain the walls within certain isolated areas.” The underpinning work was done by hand excavation alongside the sunken piers “until we encountered subsurface material which in our opinion was sufficient to receive spread concrete footings.” Then “we proceeded and built a form, poured concrete into the form, and the end result was the compressive load of the column was refused by this pier that was installed in direct compression.” David’s hand excavations varied between 5 and 14 feet below the bottoms of the piers drilled by Wabash; ten of such hand excavations were 11 feet or more below the drilled piers; all rested on different material than did the drilled piers. This work cost $8,482.56.

The principal conflict in the evidence went to the meaning of “drilled to refusal” in connection with whether the drilled piers were “drilled to refusal,” and whether such piers were “belled,” all as required by the plans and specifications; and, since plaintiff had a verdict, she is entitled to have the evidence viewed in the light most favorable to her. Christie v. Gas Service Co., Mo., 347 S.W.2d 135, 137 [1].

Eugene Brucker, an engineer, specializing in soil mechanics and foundations, in-* spected the building’s underpinning in 1963 while the E. F. David Company was working there. None of the piers he observed were belled and they “were not drilled to. what we would consider refusal material.” One such pier, located in the northwest corner of the building, rested on a “yellow, silty clay” and was not “belled” as required by the plans and specifications. “One pier in particular was pointed rather than having a flat bottom as normally a pier would be.” Mr. Brucker stated that the term “ ‘refusal,’ when in reference to the support of a building would be the material which is strong enough to support it. Frequently this would be limestone or material which is solid from there on down. Basically, an unyielding material as far as supporting capacity is concerned.” He thought that this building in Clayton, Missouri, should have been piered to Cherokee shale, “a firm, hard, reddish material,” all the way around. Where he observed David working he saw no strata of limestone at 13 to 15 feet; he did see some gravel which they went through. In respect to a driller’s operation, he stated on cross-examination that “refusal” meant “to a material at which he can no longer penetrate, below which we would assume, or know from one way or another, that this material is solid and unyielding and sufficient to support the intended load of a structure. * * * If I would designate piers to refusal, I would not expect this man to drive this machine to get hung up on a branch or a log, and say, ‘I can’t go any further.’ I would anticipate that he would take this hole, by one means or another, to a point at which this material was satisfactory for bearing an intended structure.” He would prefer specification of an elevation to which piers should be drilled, and he did not disagree with the engineering definition of “refusal” in Webster’s Dictionary, “A stoppage of a bolt or pile, etc., because of resistance greater than the driving force.” In answer to whether the plans called for a belled pier at one particular location where an unbelled pier was observed, “my interpretation of the plans, as I would read them, would indicate that the bell was required on that particular location.”

When the David Company did its work, Mr. David found bells at the bottom of some of the piles he examined, and it was his opinion that materials he found at the bottom of those piers constituted refusal. When his company dug alongside existing piers he could see what was supporting their bottoms, and, as to whether it constituted refusal, he answered, “if limestone can be considered refusal, they were on refusal.” In one instance David dug by hand to 25 feet in depth for refusal; the machine-drilled pier was dug to but 13 feet. All of his holes were dug to refusal.

Another consulting engineer, Henry M. Reitz, inspected the premises for Mrs. Kahn during the work performed by the David company. He observed one of David’s underpinning holes and, in answer to whether the pre-existing pier had been drilled to refusal, testified: “By shape and somewhat by color, the pre-existing pier was visible in the east side of the excavation * * *. The elevation * * * was well above the bottom of the excavation that David was making for the new pier immediately adjacent to it. * * * the nature of the materials that had been dug out * * * could be noted. In any of those stockpiles I could not see any signs of course (sic) gravel, rock, or anything else. * * * The base of the pier that David was digging, (was) quite dry, quite firm material that had a characteristic terra cotta type color that is generally found in this part of the St. Louis area; and is something that is assumed to be a most suitable foundation material for this type building. * * * the material at the base of the drilled pier was a light color; it was not dry, it was not as firm; it would not have as much strength as the material that the David work had reached.” By his interpretation of the plans and specifications the Wabash pier had not been “drilled to refusal” which he defined as meaning “drilled to a hard, resistant strata which would support the loads that will be applied to it.” The pier was not belled. He also examined the Wabash test drill report which showed that the first hole went to 25 feet without finding refusal; the second hole went to 25 feet “past some limestone and boulders and still no refusal,” and the third hole found .shale refusal at 22 feet. In his opinion the reason the building settled “was an excessive amount of differential movement between interior and exterior walls, and along exterior walls, which would be a non-uniform degree of support under the structural portion of the building. * * My opinion is that the great majority, if not all of the cracks that were visible when I looked at the building in 1963, were the result of insufficient support from the foundation, which, since the foundation was made up predominantly of drilled piers, would mean that movement had to be in the drilled piers. The drilled piers were concrete within their depth and, therefore, the movement would be beneath the base of the drilled piers * * * due to the material upon which the building was built, rather than the materials that went into the building * * This witness recognized that the plans did not specify a meaning for “refusal,” and stated that the term had a definite meaning in the trade; that the responsibility of a machine operator would be met if his drill refused to penetrate further, but when previous information on the area is available, the operator’s actions in stopping his drill alone would not meet the obligation of the plan.

Defendant Prahl and third-party defendant Fairell put on their version of “drill to refusal” in dispute of plaintiff’s case. Generally, their theory was that the term meant to drill until the bit of the mounted rig refused to penetrate further, ceased to bring up drilled material, or ceased to rotate. Their witnesses recognized that refusal to penetrate further could be caused by a rock the size of a baseball, a 4" cube of rock, small rocks, a log, a small rock upon which a drill came to rest, etc. They also testified that a drill bit and rig will “chatter” and rise up when it “reaches refusal.”

The contractor, William J. Prahl, testified that he knew the contract called for him to drill piers to refusal and that the 15-foot figure did not mean the depth he was to drill. He said “drill to refusal” in his business meant when the bit on the rig stops, comes up empty, and he so construed the plans. He said the piers on his job were dug to refusal. He saw quite a few piers belled when belling was done.

Prahl’s superintendent, Oliver Haas, stated his understanding of “drill to refusal” to be met whenever the drill would not penetrate further with all pressure on the drill, and when it did not bring up any more dirt. He stated that Louis Krasner gave him permission to pour the main pier under the garage when he reported to him that his drill was not going down as deep as he thought it should. Mr. Haas stated that all piers were drilled to refusal and that all piers were belled where required.

Herbert R. Sprinkle, a driller and foreman for Wabash on both test and pier drilling on the Kahn job, Herbert Howard Ellyson, James Leo Mudd, and Walter Louis Schatz, Wabash drillers on the Kahn piers, all testified to the effect that Wabash drilled the Kahn piles to “refusal” according to defendants’ theory of “refusal.” None could remember whether they belled any piers.

Fairfield Elliott, former owner of Wabash, now known as Fairell, Inc., also interpreted “drill to refusal” to mean to where a drill will no longer penetrate. He said that in plans calling for drilling to refusal the owner takes the risk.

Fairell, Inc., presented Neal J. Campbell, a graduate engineer specializing in building work, who stated the purpose of test holes to be that of guiding the engineer in determining soil pressure he would use and type of foundation he would specify. His definition of refusal for a drilled pier was that of the trade when the full weight of the machine is put on the drill and it stops. In his opinion the piles on the Kahn job were drilled to refusal.

The evidence on damages came from Charles Kahn who had been in the real estate mortgage business since 1936, appraising and evaluating properties. He also had built commercial buildings. The actual cost of the completed building, exclusive of land valued alone at $50,000, was $705,000. He stated that as of the date of completion the land and building would have had a fair market value of $700,000 if it had been completed according to plans and specifications ; that such had a fair market value of but $650,000 as the building was actually completed; that the faulty underpinning of this job depreciated the value of the building by $50,000; and that the faulty underpinning left a 7-inch drop in the basement garage ceiling, a permanent sagging and slanting condition.

Defendant Prahl’s case came from himself and his employees, above mentioned, and, upon conclusion, he stated that he “rests on the claim that has been filed against him; and refiles and adopts the testimony (of plaintiff) in support of his third party claim.”

Fairell’s case was the testimony of Mr. Campbell and certain exhibits.

Instruction No. 3 directed the jury to find for plaintiff if it believed:

“First, the plans and specifications provide for pier holes to be drilled to refusal and for specified piers to be belled, and

“Second, that by drilling to refusal is meant drilling to a sufficient weight bearing material to support the apartment building, and

“Third, that any of the holes were- not drilled to refusal, or any of the piers specified to be belled were not so belled, and the apartment building was damaged thereby.”

Instruction No. 4 directed the jury to find for defendant Prahl if it believed:

“First, that the plans and specifications call for drilling to refusal and that by drilling to refusal is meant that the drill reaches a point where it no longer will penetrate the bottom of the drill hole and that the drill indicates it has reached a point of refusal.

“Second, that defendant through its subcontractors did drill to refusal.

“Third, that the plans and specifications call for the belling of certain piers.

“Fourth, that defendant through its subcontractors did bell the said piers mentioned in evidence according to the plans and specifications.”

As between third-party plaintiff and third-party defendant, Instruction No. 6 directed that “If you find in favor of plaintiff against defendant your verdict must be for defendant William J. Prahl as third party plaintiff against third party defendant Wabash Drilling Company (Known as Fairell, Inc.) for the same amount if you believe Wabash Drilling Company failed to drill to refusal or belled (sic) as set forth in the plans and specifications.”

Instruction No. 7 directed a verdict for third-party defendant, Fairell, Inc., if the jury found for defendant, and Instruction No. 8 directed a verdict for third-party defendant Fairell, Inc., if the jury found that Fairell (Wabash) did drill to refusal and did bell piers which called for belling in the plans and specifications.

Instruction No. 5 authorized damages to plaintiff in the event of a finding for plaintiff “in such an amount as will compensate plaintiff for the difference, if any, as of November, 1958, between the fair market value of the apartment building as constructed and the fair market value of said building had it been constructed in accordance with thé plans and specifications therefor.”

The jury returned a unanimous verdict in the form of Instruction No. 10 giving form of verdict and Instruction No. 5, as follows: “We, the jury, find the issues in favor of the plaintiff Ernestine Kahn and award plaintiff Ernestine Kahn damages in such an amount as will compensate plaintiff for the difference, if any, as of November, 1958 between the fair market value of the apartment building as constructed and the fair market value of said building had it been constructed in accordance with the plans and specifications therefor.”

Apparently the jury was returned to the jury room inasmuch as the transcript shows, “And thereafter, the jury returned a second verdict, as follows: ■*'’*’* 'We, the jury, find the issues in favor of the plaintiff Ernestine Kahn and assess plaintiff Ernestine Kahn’s damages at $50,000.-00.’ ” This verdict was in the form prescribed by Instruction 10 and was also unanimous.

Defendant Prahl moved for mistrial and discharge of the jury, sustained by the court per memorandum: “Jury having twice returned into Court Verdict Forms contrary to the Instruction of the Court and the Forms of Verdict set out in Instruction No. 10, Motion * * * for discharge of jury and declaration of mistrial sustained. Cause reassigned to Assignment Division for further proceedings.”

Plaintiff subsequently moved to set aside the declaration of mistrial, to reinstate the verdict and enter judgment thereon, and to direct a verdict for third-party plaintiff against third-party defendant and enter judgment thereon.

The court sustained this motion by the following Order and Judgment:

“Plaintiff’s motion to set aside declaration of mistrial, reinstate jury verdict and enter judgment thereon, and direct verdict in favor of 3rd party plaintiff against 3rd party defendant and enter judgment thereon, heretofore argued and submitted, is hereby SUSTAINED.

“It is ORDERED that the declaration of mistrial and the reassignment of this cause entered on November 6, 1965, be and the same are hereby SET ASIDE.

“It is ORDERED that the verdict of the jury returned on November 6, 1965, in the following form be and the same is hereby RECEIVED and FILED:

“ ‘We, the jury, find the issues in favor of the Plaintiff Ernestine Kahn and assess plaintiff Ernestine Kahn’s damages at $50,000.00.
“ ‘(Signed) Allen W. Perkins Jury Foreman.’

“WHEREFORE, it is ADJUDGED by the Court that plaintiff Ernestine Kahn HAVE and RECOVER from defendant William J. Prahl, d/b/a J. A. Prahl Contracting and Building Company, the sum of $50,000.00

“WHEREFORE, because the issues between plaintiff and defendant Prahl and 3rd party plaintiff and 3rd party defendant Fairell, Inc., are identical, and since the verdict of the jury on plaintiff’s cause of action is controlling and necessarily requires a like determination of the issues between 3rd party plaintiff and 3rd party defendant, it is further ADJUDGED by the Court that 3rd party plaintiff William J. Prahl, d/b/a J. A. Prahl Contracting and Building Company, HAVE and RECOVER from 3rd party defendant Fairell, Inc., (Formerly Wabash Drilling Co.) the sum of $50,000.00. It is further ADJUDGED by the Court that the cost of these proceedings be and the same are ASSESSED against 3rd party defendant, Fairell, Inc.

“It is ORDERED that the foregoing judgments be entered, nunc pro tunc, as of November 6, 1965.

“Dated this 17th day of December, 1965.”'

Thereafter the court sustained motions for new trial of both defendant Prahl and third-party defendant Fairell, Inc., and awarded them new trials on certain specific grounds contained in their motions.

One ground specified for awarding a new trial to defendant Prahl on plaintiff’s case was: “5. The evidence shows that defendant contracted with third party defendant to perform the drilling and installation of piers according to the plans and specifications and third party defendant contracted to perform said work for plaintiff and defendant and third party defendant is directly responsible to plaintiff and third party plaintiff for any damages resulting from failure to perform its contract.”

Perhaps it may be said that Wabash did, in effect, contract to perform the drilling and belling operations for plaintiff’s building; nevertheless, the evidence does not show any contract between Wabash and plaintiff, Wabash was not a party to the general contract between plaintiff and Prahl, and plaintiff was not a party to the subcontract between Prahl and Wabash. Under such circumstances, third-party defendant Fairell (formerly Wabash) was not “directly responsible to plaintiff,” for any breach by Prahl of his general contract with plaintiff or for any breach of its own subcontract with Prahl, because one not a party to a contract is not bound thereby and is not liable for breach of a contract to which he is not a party. Mueninghaus v. James, 324 Mo. 767, 24 S.W.2d 1017, 1020 [4] ; Zweifel v. Lee-Schermen Realty Co., Mo.App., 173 S.W.2d 690, 700 [4, 5]; 17A C.J.S. Contracts p. 998, § 520. This being the case, plaintiff, even though she “accepted” the third-party defendant for purposes of trying all the issues before one jury in one lawsuit, could not and did not state any cause of action against Wabash for breach of either of the contracts as would be necessary for her to do in order to recover directly against Wabash and for Wabash to be directly responsible to her. State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 130 [4, 5]; State ex rel. Merino v. Rose, Mo., 240 S.W.2d 705, 707 [1]; Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 803 [6].

The second ground for awarding a new trial to Prahl on plaintiff’s claim was that the verdict, which was ordered reinstated and upon which the judgments were entered on December 17, 1965, did not follow the instructions. One of the grounds for awarding a new trial to third-party defendant was “that the act and judgment of the Court and the order so made was one of substance or judicial error and was not one of clerical form or of a clerical nature.” Another was “that the jury did not find any verdict against * * * Fairell, Inc., and it was error for this Court to usurp the function of the jury and enter a verdict against this Third Party Defendant.” Fairell also contends that the court should have sent the jury back to continue its deliberations until it reached a proper verdict, this being yet another of the grounds for awarding Fairell a new trial.

Concededly, the second verdict ultimately accepted by the court did not make the finding directed for defendant Prahl as third-party plaintiff against third-party defendant Wabash in the event the issues were first found for plaintiff against Prahl; and courts, of course, cannot change a verdict in a matter of substance nor can they do so in effect by substituting their verdict for that of the jury and entering a judgment not supported by the verdict. Thorne v. Thorne, Mo., 350 S.W.2d 754, 757 [5]; McIlvain v. Kavorinos, Mo., 219 S.W.2d 349, 351 [6, 7]; Lummi Bay Packing Co. v. Kryder, Mo.App., 263 S.W. 543; Johnson v. Hunter, Mo.App., 398 S.W.2d 449, 452 [3,4]; Newton v. St. Louis & S. F. R. Co., Mo.App., 153 S.W. 495, 497 [3].

However, in this case the verdict was complete and sufficient to support the judgments, and entering the judgments did not constitute a substitution of court verdict for jury verdict or a change of substance in the verdict. “ * * * courts * * * construe a verdict liberally in an effort to ascertain the jury’s intent. * * * And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed,” Thorne v. Thorne, supra, 350 S.W.2d 1. c. 757 [3]; and if the jury’s intention “is ascertainable, and the verdict includes findings on the issues required, it is a proper verdict and judgment should be entered thereon. Under such circumstances it would be error for the trial court to refuse to accept the verdict.” Haley v. Byers Transportation Co., Mo., 394 S.W.2d 412, 415 [4], The issue between plaintiff and defendant Prahl was whether Prahl breached his contract with plaintiff by failure to cause piers to be “drilled to refusal” and “belled” as required by the plans and specifications; between Prahl and third-party defendant Wabash the issue was whether Wabash breached its contract with Prahl by failure to drill and bell piers as required by the plans and specifications. Instructions 3 and 4, which are not questioned, submitted whether “drilling to refusal” meant drilling to a sufficient weight-bearing material to support the building (plaintiff’s theory), or meant that the drill reaches a point when it no longer will pentrate the bottom of the drill hole and indicates it has reached a point of refusal (Prahl’s and Wabash’s definition); whether any of the holes were not “drilled to refusal” and any of the piers specified to be “belled” were not belled; and whether the building was damaged if any holes were not drilled to refusal or any such piers were not belled. The jury’s verdict was in the exact form suggested by Instruction No. 10 and found these issues for plaintiff and awarded her $50,000 damages, necessarily against Prahl because he was the only party against whom she had or submitted a cause of action. By Instruction No. 6 the issue between Prahl and Wabash was, as stated by the trial court, “identical” to the issue between plaintiff and Prahl. In other words, under the pleadings, evidence, and instructions in this case, Wabash was liable to Prahl if Prahl was found liable to plaintiff. All the work alleged to be the subject of breach was performed by Wabash, and the breach in respect to such work ascribed by plaintiff to Prahl was, in turn, charged by Prahl to Wabash; and, contracted as the work was, Prahl alone was liable to plaintiff for such breach and Wabash was, in turn, liable for the same breach and in in the same resultant amount of damages to Prahl. Thus, the jury’s verdict “made the necessary factual determinations,” Haley v. Byers, supra, 394 S.W.2d 1. c. 417[9], in respect to Prahl’s breach of the general contract with plaintiff and with respect to Wabash’s breach of its subcontract with Prahl as well. “ * * * the net effect of these findings,” Haley v. Byers, supra, 1. c. 417[9], was that the judgments in favor of plaintiff and against Prahl and in favor of Prahl and against Wabash for $50,000 were properly entered by the trial court as a matter of law upon reconsideration of the verdict and should not thereafter have been set aside. Even though the jury did not make the finding for Prahl against Wabash, peremptorily directed of it by Instruction No. 6, nevertheless it did make all the findings necessary to a complete verdict upon which to enter the judgments; and even though the court could have directed the jury to retire and correct or complete its verdict, Haley v. Byers, supra, 1. c. 415 [2], error, if any, in failure so to do was cured by the trial court when it did receive such verdict and entered proper judgments when the plaintiff, by motion, brought the matter to the court’s attention. In so doing, the court did not usurp any function of the jury because there was no further function, other than a ministerial one, for the jury to perform.

The facts in Haley v. Byers, supra, lend further support to the foregoing demonstration. Haley sued Byers and its driver, Deem, for personal injuries after having settled with a joint tort-feasor, Southwest Freight Lines, for $80,000; Deem filed a counterclaim. A measure-of-damages instruction told the jury that if it found for plaintiff, it should deduct the $80,000 from the award and, in its last sentence, the instruction also directed the jury that if it found plaintiff’s damages at less than $80,-000, then the verdict should be for defendants. The jury first returned a verdict in favor of plaintiff against both defendants, assessing damages at “zero dollars,” and further finding for plaintiff on Deem’s counterclaim. The court ordered the jury to reconsider' and a second verdict was returned for plaintiff against both defendants assessing $20,000 damages, and further finding for plaintiff on the counterclaim. Judgment was entered on the second verdict but, on appeal, the defendants successfully asserted that the first verdict was complete and valid for defendants and should have been received and filed and judgment entered accordingly. In addition to those matters previously quoted, the supreme court said: “It is true that the jury did not do as instructed in the last sentence and, having found that the amount already paid either equalled or exceeded the amount of plaintiffs damages, did not convert that to a verdict for the defendants. That is not sufficient to make the verdict bad.” 394 S.W.2d 1. c. 417[9].

State ex rel. Witte Hardware Co. v. McElhinney, Mo.App., 100 S.W.2d 36, presented a similar situation in that the jury not only failed, but refused, to find in favor of plaintiff on a promissory note as. peremptorily directed. The court declared a mistrial and plaintiff thereafter moved for entry of judgment in its favor in accordance with the court’s peremptory instruction. The motion was denied but, on plaintiff’s application,' a writ of mandamus issued to compel entry of the judgment. The court’s reasoning is applicable here: “When the judge sustains (a) request for a peremptory instruction * * *, he does hot weigh the evidence, but instead rules solely as a matter of law that no other verdict is legitimately permissible under the evidence except the verdict he directs. * *

“But while the judge acts within his accepted province in directing a verdict, the jury in such an instance departs from its usual function, since in returning a verdict in response to such a direction the jury does not exercise any measure of discretion, but acts only formally, perfunctorily, and ministerially as the instrument by which the court prepares the orderly record which will support the only judgment that can lawfully be rendered in the case.” 100 S.W.2d 1. c. 38 [3-6],

Here, Instruction No. 6 peremptorily directed the jury to return a verdict for third-party plaintiff Prahl against third-party defendant Wabash if the jury first resolved the same issues as between them for plaintiff and against defendant Prahl; and, when the jury made the finding for plaintiff against Prahl, it, of necessity, made the finding prerequisite to the ministerial duty of a subsequent finding for Prahl against Wabash directed by Instruction No. 6. Under such circumstances the court had the duty to enter the judgment necessary to the protection of the valuable right found for plaintiff by the jury and to disposition and conclusion of the whole case. State v. McElhinney, supra, 100 S.W.2d 1. c. 39[10, 11]. Stated yet another way, “ * * * a peremptory direction to a jury to make a certain finding, which the jury fails or refuges to do, is, under more modern rulings, in effect, the same as if the finding had been made as directed,” Newdiger v. Kansas City, 342 Mo. 252, 114 S.W.2d 1047, 1051; and if the jury fails or refuses to follow the court’s instructions and return a verdict as directed by the court, the court may discharge the jury and cause judgment to be entered as directed without the formality of the directed verdict. Insurance, Inc. v. Sanders, Mo.App., 378 S.W.2d 249, 254. See also Burrel Collins Brokerage Co. v. Hines, 206 Mo.App., 669, 230 S.W. 371, 373[3]; Gier v. Clark, Mo., 300 S.W.2d 519, 521 [5].

Fairell contends: “It was error for the Court to set aside its order of November 6, 1965, on December 17, 1965, because when the order of December 17, 1965, was made the thirty days from the entry of the original or attempted judgment had elapsed.” This corresponds to one of the grounds upon which the court awarded Fairell a new trial, i. e., “that the Court * * * lost jurisdiction of the cause and the power to make said order after declaring a mistrial and after the jury was discharged and after sending the cause back to the Assignment Division * * *.”

The period during which the trial court has control over its judgments is limited to thirty days after entry of judgment, Civil Rule 75.01, V.A.M.R., Romig v. Romig, Mo.App., 360 S.W.2d 737, 738 [1]. Fairell’s difficulty in respect to the application of this rule is that the court simply declared a mistrial on November 6, and there was no final judgment or determination then entered to start such 30-day limitation period to run, “because, upon a mistrial * * *, a retrial would automatically follow except and unless the trial court entered judgment for one of the parties. That retrial, however, is not a new trial in the sense that the former trial had proceeded to a final judgment which the trial court had set aside.” Gier v. Clark, supra, 300 S.W.2d 1. c. 521 [5]. See also State v. McElhinney, supra. By Civil Rule 74.01, V.A.M.R., “judgment is the final determination of the rights of the parties in .the action,” and “to he ‘final’ * * * and therefore appealable must of course dispose of all issues.” Glick v. Glick, Mo., 372 S.W.2d 912, 915[2], See also Goldstein v. Floridian Homes, Inc., Mo.App., 331 S.W.2d 124, 126 [2, 3]; Scheid v. Pinkham, Mo., 395 S.W.2d 166, 168 [2],

This is similar to the pre-1945 Code of Civil Procedure situation in Leavenworth Terminal Railway & Bridge Co. v. Atchison, 137 Mo. 218, 37 S.W. 913, 915[4], where “The court, at its August term, upon first hearing defendant’s motion, made an order setting aside the report of the commissioners, and for an assessment of damages by a jury. At the next term this order was set aside, the report was reinstated, and defendant’s motion was then ■overruled, and the report approved and confirmed. Defendant insists that the order first made was in the nature of a final judgment, and could only be set aside at the term at which it was made. We do not agree that the action of the court in setting aside the report of the commissioners was a judgment. It was no final determination of the rights of the parties. It was a mere order or direction of the court, which remained under its control, subject to be recalled or set aside at any time before the proceedings were finally disposed ■of.”

Consequently, under these authorities, the trial court made no final determination and entered no final judgment determinative of its jurisdiction until the entry of judgment on December 17, 1965, from which it subsequently awarded the new trials resulting in these appeals.

Fairell, Inc., also contends that the court erred in not giving it a directed verdict on the third-party claim because:

“(a) Fairell, Inc., had completed the contract satisfactorily according to the admissions and testimony of Prahl.

“(b) Third party plaintiff could not adopt the testimony offered by plaintiff, Kahn, because it was in conflict and at war with third party plaintiff’s own testimony.”

In respect to (b), no objection was made at trial to admission of evidence by way of the recital that Prahl “refiles and adopts” the testimony of plaintiff’s case against Prahl in support of Prahl’s third-party claim against Wabash; the point is simply a charge of error in the admission of evidence; and, in addition to lack of an objection, there was no such assignment of error in Fairell’s motion for new trial. It is, therefore, not for review. Dudeck v. Ellis, Mo., 399 S.W.2d 80, 97[18]; 2A Mo.Dig., Appeal and Error, ©A301. This also is true of Fairell’s claims of error in giving Instruction No. 10 on form of verdicts inasmuch as no such assignment was presented in the motion for new trial.

In respect to (a) above and as previously stated, the sole issue as to compliance by Wabash with its contract with Prahl was whether pier holes for plaintiff’s apartment building were drilled to refusal and whether piers were belled where specified. Failure, if any, of the holes to be drilled to refusal or of piers to be belled would emanate from Wabash because it was the only party to do any such work. Obviously, the jury found that holes had not been drilled to refusal or that piers had not been belled as specified, and the review of the evidence shows that there was ample evidence other than, as well as contrary to, the testimony of Prahl and his employees upon which the jury could decide that fact question. The simple truth is that the jury did not believe Prahl’s evidence and defense of himself (and Wabash) that the holes were drilled to refusal or that the piers were belled as specified and accepted as such and, as previously demonstrated, a finding adverse to Prahl on that issue necessarily required that failure to be directed against Wabash in favor of Prahl.

Finally, Fairell charged that the instruction on the measure of damages “was erroneous in that there was other damage to .the building not attributable to any conduct on the part of Fairell, Inc., and * * * because the entire project was $705,000.00 and the cost of repairs were (sic) approximately $8,000.00, and this cost of repairs was insignificant to the total costs of the building and the instruction did not provide for any deduction for damages not attributable to the conduct of the third party defendant.”

Fairell cites Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487, 492 [9]: “The measure of damages in cases of this character is stated plainly in Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 686, 253 S.W.2d 158, 164[12]: ‘The general rule is that the measure of damages to real estate is the difference in the value of the land before and after the injury by trespass or negligence. However, where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered.’ ”

Cited also is Hotchner v. Liebowits, Mo. App., 341 S.W.2d 319, 332[25]: “ * * * In Walter v. Huggins, 164 Mo.App. 69, 148 S.W. 148, 150, * * * the court reviewed the cases from this and other jurisdictions and quotes with approval from White v. McLaren, an early Massachusetts case found in 151 Mass. 553, 24 N.E. 911, as follows :

“ ‘In determining such damages, different elements are proper for consideration in different cases, according to the nature of the defect. Sometimes the measure of damages is the necessary cost of making the work according to the specifications. * * * The question ordinarily is: How much less is the building fairly worth than it would have been if the contract had been performed ?’

“The court at * * * 148 S.W. 148, at page 151, summed up its review of the cases by stating an old but still vital legal maxim: ‘The cases * * * show that, in the choice of rules for the measurement of damages in building cases, the old saying that circumstances alter cases has peculiar force.’ * * * One of the most important of the circumstances referred to is the character of the damage when considered in the light of the total amount involved. If the damage alleged can be characterized as insignificant when viewed in the light of the total proj ect, * * * then it would be obviously faulty to require the testimony to be confined to the difference in value as the building was completed and as it should have been completed under the contract.”

The rules of these cases do not support the charge of error in respect to Instruction No. 5 because they, in fact, support the court’s action in this case.

Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 164[ 12], proceeded: “‘But it frequently happens that an injury or trespass to real property may be in a certain sense irreparable. The condition of things before the trespass was committed or the injury done cannot be restored at all, or can be restored only at * * * great and disproportionate expense. In either of these cases another measure of damages is properly adopted by the courts, namely, the difference in market value of the property before and after the act complained of.’ ” Likewise, Hotchner v. Liebowits, supra, 341 S.W.2d 1. c. 332[25], proceeded: “On the other hand, consider the case of damage which constitutes a substantial portion of the project cost. In that instance the cost of repair might not adequately compensate for the overall loss for in such projects the actual value, if completed as it should have been, might well be more than the sum of its individual parts. In the instant case the damage, both as alleged and proved, was extensive in character and bore a substantial relationship to the compensation called for under the contract and (builder’s) contention that the damage was insignificant is without merit. * * * Instruction No. 7 correctly stated the measure of damages.” Instruction No. 7 which “correctly stated the law” is identical in theory and substance to Instruction No. 5 in this case, and the evidence here is sufficient to make a case of substantial, irreparable damage, the situation in which the instruction is appropriate.

As argued by Fairell, Mr. David did testify that part of his company’s work, installation of supplemental steel shoring, was to remedy a defect inborn in the building by poor design. He was then describing the scope of all the work he did and was testifying with respect to an attempt to eliminate further plaster cracks in interior walls, a condition separate from the piering problem. His testimony also covered his opinion that plaster cracks in exterior work, in the brickwork, and in the poured foundation, were due to unsatisfactory conditions below the footings. He described the work done to counteract the situation and to “stop the building from settling further,” and separated it from the condition in the interior walls. Previous review of the evidence contained the testimony of witnesses Brucker and Reitz which also brought the damages sought by Kahn into the realm of compensation for substantial irreparable injury, i. e., a permanent sagging and slanting condition manifested by a 7-inch drop in the basement garage ceiling, incapable of restoration to former or specified condition.

In respect to the charge that the instruction failed to direct a deduction for damages not attributable to the Wabash operation, the answer is that it did not authorize any damages other than those attributable to failure to construct the building in accordance with plans and specifications; by its terms, consideration of any damage from faulty design was precluded. The instruction is not defective for any of the reasons urged.

Accordingly, the order and judgment awarding new trials to defendant William J. Prahl, d/b/a J. A. Prahl Contracting and Building Co., on plaintiff’s petition and to third-party defendant Fairell, Inc., on Prahl’s third-party plaintiff’s petition is reversed; the cause is remanded with directions to re-enter the judgments for plaintiff Ernestine Kahn against defendant Prahl for $50,000 and for third-party plaintiff Prahl against third-party defendant Fairell, Inc., for $50,000, as of November 6, 1965.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

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

All concur.


author: HOUSER, Commissioner.

text:
    In re ESTATE of J. A. REED, Deceased. Addie Mae COPELAND, Appellant, v. Bertha May REED, Respondent.
    No. 51881.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Robert B. Baker, Ellington, for admin-istratrix-appellant.
    William H. Bruce, Jr., Centerville, for claimant-respondent.
   HOUSER, Commissioner.

This appeal involves the rights of the widow Bertha Reed in the estate of her deceased husband, J. A. Reed. The estate consisted of real estate and personal property. His administratrix has appealed from a judgment of the circuit court sustaining her various claims.

J. A. Reed and Bertha May Womack were married on September 12, 1961. The day before their marriage they executed a written document called an “Antenuptial Contract,” which was prepared by a lawyer to whom Mr. Reed went to have him “fix up some papers.” The contract recited that the parties contemplated marriage; that each was possessed of real and personal property in his own right; that each had adult married children by former marriages; that they desired that their marriage not change their property rights or the rights of their children and heirs “from what they [were] before the marriage.” It was agreed that Mr. Reed would provide his wife with a home during the continuance of the marriage; that the survivor of them would make no claim to any part of the estate of the other as surviving spouse; that the parties waived and relinquished their rights to elect to take against any will, exempt property, homestead allowance, one year’s support and “their rights to all other claims of every kind and character against the estate of the other.” In lieu of these rights it was agreed that the survivor be paid $50 per month for life out of the estate of the other. The intention was expressed that the estate of each descend to or vest in his or her heirs at law, legatees, or devisees, according to will or the law of the state in force “as though no marriage had taken place between them,” and the contract gave each the right to will or deed his or her property as each saw fit,

Abopt two months after the marriage Mr. Reed and his wife “got the papers out.” Upon reading the contract “it was unsatisfactory.” According to Mr. Reed’s statements to relatives and a neighbor, the paper was supposed to have been a will, but he read it and “it turned up to be a contract.” He said that it did not give his wife “enough”; that it allowed her nothing but $50 a month, and that this “is not anything.” In the presence of his wife, daughter and son-in-law he said “I am going to destroy this.” Then he said to his wife, “Hold the stove door open.” Mrs. Reed opened the door of the stove and Mr. Reed threw the contract into the stove. It was burned up. The next day after he burned his copy of the contract Mr. Reed went to his lawyer’s office, told his lawyer that he “wanted all the papers he had on them. He said he wanted them all.” The lawyer said that he could not find the papers; that he would find them later and “bring them up.” Shortly thereafter the lawyer came to Mr. Reed’s house. Mr. Reed told him that he burned his copy of “that thing and [that he] didn’t want it in court” and that he wanted the lawyer’s copy so that he could destroy it. The lawyer told him that he did not have them; that he had misplaced them and could not find them. The lawyer never did produce the office copy of the contract during Mr. Reed’s lifetime. There is no evidence that Mrs. Reed had an additional copy of the contract.

On February 21, 1962 Mr. Reed went to another lawyer and had a will, prepared and signed, by the terms of which, among other things, he left one third of his estate to his wife. He died on February 14, 1964. Mrs. Reed paid the funeral bill of $1,122.45 out of her own funds. The executor named in Mr. Reed’s will refused to qualify. Mrs. Reed waived her right as surviving spouse to administer on the estate, and she renounced the will. A daughter of the deceased was appointed administratrix of the estate. The inventory showed real estate appraised at $13,200, and personal property appraised at $353.65.

Mrs. Reed filed claims against the estate for the funeral bill, and for allowances of a year’s maintenance, homestead and exempt property. The lawyer produced a copy of the antenuptial contract and ad-ministratrix filed a motion in the probate court to deny statutory allowances to the widow on the basis of the contract. The probate court found that the contract was in force and effect, sustained the motion to deny the statutory allowances, and directed administratrix to pay the widow $50 a month under the contract. The probate court also allowed the claim of the widow for the funeral bill.

The administratrix appealed to the circuit court from the order allowing the funeral bill, and the widow appealed to the circuit court from the orders denying her statutory allowances.

The circuit court conducted a hearing, found that the consideration for the an-tenuptial contract was not fair and that after the marriage it was rescinded; that decedent left lineal descendants; that the widow timely filed her election to take against the will, and that the widow was entitled to statutory allowances as follows: exempt property, $281.33; one year’s support, $1,-800; homestead amounting to 50% of the estate exclusive of the allowances for exempt property and one year’s support, which amount should be offset against the distributive share of the widow under § 474.-290, RSMo 1959, V.A.M.S.; that the widow was entitled to reimbursement for the funeral bill in the sum of $1,130, and that she was entitled to one third of the estate, subject to the payment of claims, and that she take nothing by the will.

On this appeal administratrix makes four points. We sustain the first point, that the court erred in finding that the consideration for the antenuptial contract was “unfair.” There is no evidence upon which to base this finding.

The second and third points are that the court erred in finding that the contract was rescinded, because the evidence is insufficient to support such a finding in that (1) no mutuality of consent to rescind is shown; that the evidence shows no intention on the part of both parties to rescind or acts of either inconsistent with the continued existence of the contract, and (2) the contract had been partly performed and there was no new consideration to support an oral ex-ecutory agreement to rescind.

A written contract may be rescinded or abandoned by parol. An express agreement to rescind need not be shown. An agreement to rescind may be inferred from the acts and declarations of the parties. Chouteau v. Jupiter Iron-Works, 94 Mo. 388, 7 S.W. 467; Henges Co. v. May, Mo.App., 223 S.W.2d 110, 112, and authorities cited. “It has been held that where one party claims to rescind a contract, the rescission is by mutual consent where the other party agrees to the rescission or does not object thereto and permits it to be rescinded. ‘So, a contract will be treated as abandoned where the acts of one party inconsistent with its existence are acquiesced in by the other.’ Alropa Corp. v. Smith, 240 Mo.App. 376, 199 S.W.2d 866, loe. cit. 871.” Deu Friend v. McDermott, Mo.App., 251 S.W. 2d 339, 341, 342; 17A C.J.S. Contracts § 389, p. 467, fn. 62. Strictly speaking this is a case of mutual abandonment or cancellation by agreement, not rescission in the technical sense, but the end result is the same: discharge of fhe reciprocal contractual duties arising under a formal contract.

Mutual abandonment and cancellation “must be clearly expressed, and acts and conduct of the parties to be sufficient must be positive, unequivocal, and inconsistent with the existence of the contract.” 17A C.J.S. Contracts § 389, p. 467, fns. 63, 64. That contractual duties arising out of formal contracts are discharged by the destruction or cancellation of the document is attested by Restatement of the Law of Contracts § 432, where, in the comment on page 814, it is said: “A formal contract is to such an extent regarded as bound up in the document containing the contract that it will not survive the document’s destruction * * * if that is accompanied by a manifestation of intention of the person entitled to performance of the duties arising from the contract to discharge them.”

Mutual consent to destroy the written contract by burning, and unequivocal acts of both parties demonstrating the intention to obliterate and destroy it, and cooperating to bring about its destruction, are clearly shown by the evidence in this case. It is difficult to conceive of a more positive and unequivocal act inconsistent with the continued existence of a written contract than that of casting it into a stove to be consumed by fire. Mrs. Reed, with full knowledge of the intention of Mr. Reed to destroy the contract, did not object but permitted, and in fact actively participated and cooperated in, the act of destruction. This effectively did away with, obliterated and blotted out the antenuptial contract and all of the consequences mentioned in the writing. The court did not err in finding that the contract was “rescinded.” After the burning it was as if the contract had never existed.

J. A. Reed having died testate, Bertha Reed as the surviving spouse had a right of election to take against the will. Having elected to take against the will she was entitled, by § 474.160, RSMo 1959, V.A.M.S., to exempt property, one year’s support, one third of the estate, subject to the payment of claims (J. A. Reed having left lineal descendants), and homestead, all as allowed by the circuit court, unless, as contended by appellant, the agreement to rescind was nudum pactum. Appellant contends that it is ex-ecutory, without consideration, and therefore unenforceable.

If the antenuptial contract had been wholly executory the mutual agreement of the parties would have been sufficient to set it aside, without consideration. Thumm v. Lohr, Mo.App., 306 S.W.2d 604, and authorities cited 1. c. 609. Although the original contract was not executory, the parties having married and the .husband having provided a home for the wife for a period of months, the contract was still bilateral, each party having certain undischarged duties and certain unperformed advantages thereunder. In such circumstances the mutual agreement of the parties is sufficient to operate as an abandonment and cancellation of the contract. Corbin on Contracts, Vol. 5A, § 1236, p. 540: “If the existing agreement that is the subject of rescission is still a bilateral contract, each of the parties has one or more rights under the contract to be given up, as well as one or more duties under it from which to be discharged. In such a case a mutual assent to a rescission is at once operative to discharge both parties.”

Appellant’s fourth point is that the court erred in allowing Mrs. Reed reimbursement of the funeral bill, for the reason that “the antenuptial contract showed that she had waived any claim to the estate of the deceased.” This point, which depends upon the continued existence of the antenuptial contract as an agreement in full force and effect, falls with the contract.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER, CURIAM.

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

HOLMAN, P. J., HENLEY and SEILER, JJ., and KIMBERLIN, Special Judge, concur.