author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Teddy Ray SIMS, Appellant.
    No. 51146.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Bane Denied July 12, 1965.
    Norman H. Anderson, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    No appearance for appellant.
   HYDE, Presiding Judge.

Appeal from order overruling motion under Rule 27.26, V.A.M.R., to vacate judgment and sentence of ten years for second degree burglary and five years for stealing. Secs. 560.070, 560.095, 560.110, 560.156, 560.161. (Statutory references are to RSMo and V.A.M.S.) The court found “that it is not necessary for defendant to be present, as all issues submitted for disposition on motion are refuted by the records of this court;” and that is our view of this record.

The motion alleged that the circuit court did not have jurisdiction for the following reasons: (1) “that at the time of his arrest there were no warrants for either his arrest or for the search of his home”; (2) that the officers “did search and seize property belonging to one of the petitioner’s guests at his home”; (3) that perjury charges were filed against this guest, who testified all of the property taken by the officers was his, the charge being dismissed 16 months later; (4) “that two of the State witnesses did perjure themselves on the stand by saying they both had taken the same evidence from petitioner’s home on two different days”; and (5) that after petitioner was sentenced, a motion for new trial was given to the sheriff to be given the circuit clerk to be filed but was not filed.

Defendant’s theory “that the State lost jurisdiction of said case when my home was illegally entered and property taken from one of petitioner’s guests without a search warrant” is unsound. While this might make any seized property inadmissible in evidence, it had nothing to do with the court’s jurisdiction. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, cited by defendant, did not hold there was a loss of jurisdiction because of admission of evidence obtained by an unreasonable search and seizure but instead there was a reversal and remand for further proceedings. Furthermore, the record herein shows that, after the filing of a complaint by the prosecuting attorney, a warrant was issued for defendant’s arrest, several weeks after the date of burglary charged, and this gave the court jurisdiction to proceed. The contention that illegally seized evidence was received in evidence is not one that will support a collateral attack. State v. Worley, Mo.Sup., 383 S.W.2d 529, 533; State v. Howe, Mo.Sup., 364 S.W.2d 546, 547. Likewise, the claim concerning property belonging to defendant’s guest and the perjury charges against him could afford no basis for anything more than a claim of trial errors required to be raised on appeal. We note that defendant’s motion does allege: “Motion to suppress the evidence that had been taken from petitioner’s home illegally was filed” and “was denied * * * on grounds that th'e evidence was taken legally.” Defendant’s motion stated no facts to show otherwise but only his conclusions. However, the court files and records showed no such motion.

The allegation concerning perjury by two state’s witnesses only seems to indicate a difference in recolllection of a date and in any event it is not alleged that the prosecuting attorney knowingly used perjured testimony. See State v. Eaton, Mo.Sup., 280 S.W.2d 63; State v. Statler, Mo.Sup., 383 S.W.2d 534, 537, and cases cited. Defendant’s claim concerning an attempt to file a motion for new trial after he was sentenced is without merit. The minutes of the court show the following proceedings after the verdict was returned in which the jury was unable to agree on punishment: “Verdict of the jury accepted by the Court. Defendant’s Attorney informs the Court that no motion for a new trial will be filed and requests sentencing at this time. Allocution granted. It is hereby ordered that the defendant be confined under the supervision of the Department of Correction of the State of Missouri for a period of 10 years on the charge of 2nd degree burglary, and a term of 5 years on the crime of stealing. Said sentences to run concurrently.” Rule 27.20, as did Sec. 547.030, requires a motion for new trial to be filed before judgment. See also State v. Lauridsen, Mo. App., 318 S.W.2d 511, 512, and cases cited 513. Any such motion filed at the time defendant alleges he attempted to do would have been a nullity. Defendant’s motion makes no claim that these court minutes are incorrect.

The order of the court is affirmed.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Nathan TAYLOR, Jr., Appellant.
    No. 50999.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Bane Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    August W. Jaudes, St. Louis, for defendant-appellant.
   HOUSER, Commissioner.

Nathan Taylor, Jr., convicted of unlawfully selling a narcotic drug in violation of Section 195.020 RSMo 1959, V.A.M.S., was sentenced to 8 years’ imprisonment in the penitentiary. On appeal the judgment was reversed and the cause remanded for a new trial. State v. Taylor, Mo.Sup., 375 S.W.2d 58. Tried anew, a jury found defendant guilty and assessed his punishment at 12 years in the custody of the Department of Corrections. The trial court reduced the punishment to 10 years. Defendant appealed from the judgment of conviction.

The evidence at the second trial was so nearly identical to that given at the first trial that we need not restate it. See State v. Taylor, Mo.Sup., supra, 375 S.W.2d, l. c. 60, 61, 64,

When the case came on for trial on remand defendant’s counsel orally requested that the jury be waived and the case tried before the court. The request was denied.

The first point is that the court erred in denying defendant the right to a trial by the court on his request to waive trial by jury. Section 22(a) of Art. I, Constitution of Missouri, 1945, V.A.M.S., provides “That the right of trial by jury as heretofore enjoyed shall remain inviolate; * * * and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose findings shall have the force and effect of a verdict of a jury.” Criminal Rule 26.01, V.A.M.R., provides that all issues of fact in any criminal case shall be tried by a jury unless trial by jury be waived as provided in the rule (which contains the same provision for waiver as that provided in the constitution). The declared public policy of the state requires that a waiver by an accused of the right to trial by jury, to be effective, be agreed to by the court. It is considered that the rights of society, as well as the rights and privileges of the accused, are involved. Under the constitution and the rule both accused and court must assent and agree that the issues of fact in a criminal case be determined by the court and not in the traditional form of trial by jury. The accused has no absolute right, either by constitution, statute, or court rule, to elect that he shall be tried by the court without a jury. The refusal of an accused’s insistence upon trial by the court, where the trial judge objects to waiver of a jury, has been upheld many times in other jurisdictions. Singer v. United States, decided by the Supreme Court of the United States March 1, 1965, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, and cases cited; Anno.: Accused — Right to Trial Without Jury, 51 A.L.R.2d 1346, § 3, pp. 1352, 1353. We adopt the rule and reannounce the principles of Singer v. United States for this state.

Defendant objects that the power of the court to withhold assent is discretionary, and argues that the court should have exercised its discretion in favor of granting defendant a trial without a jury. While reluctant to directly accuse the court of an abuse of discretion defendant in effect does so by suggesting that defendant is a colored person; that the narcotics agent is white; that when this case was tried there was a considerable feeling in the City of St. Louis relative to civil rights matters; that feeling was running high against colored people and that the newspapers were full of articles pertaining to narcotics and dope rings. Defendant concludes from these unsupported statements that the jury gave the testimony of the white narcotics agent much more weight than a jury would have accorded that testimony at other times, and implies that if he had been granted “the impartial and analytical scrutiny of a circuit judge” in the trial of his case these extraneous considerations would have been disregarded. Assuming but not deciding that a trial judge may be convicted of an abuse of discretion under conceivable circumstances in refusing to assent to an accused’s waiver of the right to trial by jury, no abuse of discretion is present on this review. There is nothing in this record to indicate that the conditions referred to actually existed. We are not at liberty to take judicial notice of the suggested facts. Nor is there anything in this record to indicate or intimate that the jury was actually influenced or that its verdict was infected by any such considerations. All the record shows is that defendant waived a jury trial and that the court’s assent thereto was withheld. The refusal of the court to sanction defendant’s attempted waiver of a jury trial constituted a proper exercise of authority, and we perceive no way in which the rights of the defendant were thereby prejudiced.

The second point is that the court erred in giving Instruction No. 4 on aiding and abetting, by which the jury was instructed that all persons are equally guilty who act together with a common intent in the commission of a crime; that a crime committed by two or more persons acting jointly is the act of all and of each one so acting; that mere presence of an innocent, nonparticipating spectator does not render a person liable as a principal, but that if a person be present and by words or actions abets, assists, advises or encourages the crime, with the intent to encourage and abet the crime committed, then that person is equally guilty with the person or persons who actually commit the physical act. Instruction No. 4 is not attacked as improper in form or substance, but on the ground that there was no evidence to show that defendant had any previous dealings with Darlene Moore (the one who produced the narcotic) or with Burl (who made a telephone call in the process of arranging for the delivery of the narcotic). The gist of defendant’s argument is that defendant was not a principal ; that defendant’s principal was not Darlene Moore or Burl; that defendant did not aid and abet either of them; that defendant’s principal was the narcotics agent, and that in aiding and abetting the narcotics agent, defendant was aiding in the purchase, not the sale, of narcotics; that defendant could not be charged with aiding and abetting a crime because the narcotics agent was not charged with a crime. This is substantially the same argument made by defendant and decided against him in points 2 and 3 on the former appeal, State v. Taylor, supra, 375 S.W.2d, l. c. 63, [11], in which this court held that defendant was clearly implicated as a principal on the theory of joint action with Darlene Moore in the commission of the crime; that as the “prime mover” in the finding of the narcotics and the consummation of the sale defendant in law was as much a seller as the seller herself. The state’s evidence on the second trial, as supplemented and corroborated by the testimony of the defendant himself, in all essentials and in most of the details was substantially the same as that related in the opinion of this court on the former appeal, State v. Taylor, supra, 375 S.W.2d, l. c. 64, and our former decision that there was ample evidence to sustain the submission of the case on the theory that defendant aided, abetted, assisted and encouraged Darlene Moore in the joint commission of the crime, is decisive of the question now raised. Instruction No. 4 was appropriately given, under the evidence.

The third point is that the verdict is against the weight of the evidence. The appellate court does not weigh the evidence. It determines only whether there is sufficient substantial evidence to support the verdict. State v. Archer, Mo.Sup., 328 S.W.2d 661, 666 [8]. A verdict so supported will not he disturbed on appeal. State v. Campbell, Mo.Sup., 292 S.W.2d 297, 299 [5]. We have determined that there was sufficient substantial evidence to support the verdict finding defendant guilty.

Defendant objects that there was no evidence that defendant used narcotics or engaged in the business of selling, and no evidence that defendant “sought out” the federal agent for the purpose of buying or selling narcotics. If true, the omission is immaterial. These are not essential elements of the crime and were not required to be proved to make a submissible case.

Defendant points to the evidence of entrapment, claiming that there was substantial evidence that defendant would not have exhibited a criminal intent to deal with the agent in any manner but for the agent’s urging, deceit, coercion and offer of money. It is not contended that there was entrapment as a matter of law. The defense of entrapment was a question for the jury, as this court decided on the former appeal. The defense was submitted to the jury on the second trial, but the jury rejected it. There is no error apparent in connection with the subject of entrapment.

The fourth and final point is that the court erred in giving Instruction No. 2, directing a verdict of guilty upon a finding that defendant sold a certain narcotic drug to the agent, because of an alleged lack of evidence that defendant either procured narcotics for the agent or received compensation for delivering same. Defendant urges that the instruction fails to require a finding that the $10 paid by the agent to defendant was part of the purchase price of the narcotic; that the instruction required a finding that the sale price was $50, whereas the evidence shows that Darlene was paid only $40 and there was no evidence to support the finding of a sale for the price of $50. We have demonstrated that there was sufficient evidence to support a finding that defendant was a principal in the procuring and sale of the narcotics. There is sufficient evidence to support a finding that the agent paid $50 for the narcotics. There was testimony that Darlene Moore and defendant both told the agent that the sale price was $50; that $40 was to go to Darlene Moore and $10 to defendant, the $10 to be applied to the actual purchase price. Defendant also objects that there is no evidence that defendant owned the marijuana. This would not be fatal, but if considered important the agent testified that Darlene Moore told him that the narcotics involved in this case “belonged” to Nathan Taylor.

Defendant persists in asserting, again under this point, that he is guiltless because he was an agent for the purchaser, not agent for the supplier. Defendant cites State v. Wingfield, 115 Mo. 428, 22 S.W. 363, holding that a defendant who acts as agent for the person who orders beer supplied in violation of a local option law is not guilty of selling; that he is guilty of selling only if he acts as agent of the dealer. The difficulty with this argument is that defendant was not charged as agent of the narcotics agent, or as agent of Darlene; was not proved to have been an agent of either, and was not intended to be so charged or convicted. He was charged as a principal; the proof showed that he was guilty as a principal, and he stands convicted as a principal.

An examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

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.

All of the Judges concur.


author: FINCH, Judge.

text:
    Emil ANDERSON, (Plaintiff) Appellant, v. John STEURER, Jr., (Defendant) Respondent.
    No. 50584.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 12, 1965.

      Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.
    Robertson, Baker & De Voto, Leo C. De Voto, Jr., St. Louis, for respondent.
   FINCH, Judge.

This is an appeal from a summary judgment entered by the trial court in favor of defendant. We have jurisdiction because the prayer of the petition sought $120,-000.00.

The plaintiff, Emil Anderson, a lather employed by the George Stroup Lathing Company, was injured when a scaffold collapsed. The scaffold and its boards were furnished by the defendant, John Steurer, Jr., a plastering contractor. In his fourth amended petition plaintiff sought damages for his personal injuries, alleging that defendant was guilty of several specific acts of negligence, particularly in connection with the furnishing of the plank that broke and precipitated plaintiff’s fall. Defendant pleaded contributory negligence, but also alleged that plaintiff was the employee of a subcontractor doing work on or about the premises where the principal contractor was doing work and was a statutory employee of this defendant. After certain requests for admissions by both parties and submission of interrogatories and the taking of various depositions, including depositions of defendant Steurer, George Stroup of the lathing company, and a representative of the general contractor on the job, defendant filed his motion for summary judgment under Civil Rule 74.04, V.A.M.R. In substance, the motion contended that there was no dispute as to any material fact, that plaintiff was a statutory employee of defendant, and that plaintiff’s exclusive remedy, in so far as defendant was concerned, was under the Workmen’s Compensation Act, in view of § 287.120 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated). Under that section an employer subject to the act is liable for compensation but is “released from all other liability therefor whatsoever, whether to the employee or any other person.”

Certain facts are not in dispute. The George Moeller Construction Company, hereinafter referred to as Moeller, had a general contract to construct a church for the Mount Tabor Evangelical and Reformed Church. Moeller entered into a written subcontract with John Steurer, Jr., hereinafter referred to as Steurer, for the lathing and plastering work on the church. Both Moeller and Steurer operated under the Workmen’s Compensation Act and Steurer furnished certificates of compensation insurance to Moeller. Another contractor, George Stroup Lathing Company, hereinafter referred to as Stroup, actually performed the lathing work on the job for Steurer. Steurer then did the plastering. The premises where the work was performed did not belong to Moeller, Steurer or Stroup. Stroup also operated under the Workmen’s Compensation Act and carried compensation insurance. Compensation ($8,659.29 plus medical expenses of $2,098.-19 up to November 14, 1963) was paid by that carrier to plaintiff, who then brought his suit against Steurer as a third party whose alleged negligence resulted in plaintiff’s injuries.

The case is briefed in this court by defendant on the theory that the proof was unassailable that Moeller was the general contractor, that Steurer was a subcontractor under Moeller to do the lathing and plastering, that Steurer in turn subcontracted the lathing to Stroup, and that plaintiff was an employee of Stroup. If this were true, then we would have presented squarely for decision the question of whether an intermediate subcontractor in such a direct chain of relationship would have the same exempt status as statutory employer from third party negligence actions as the general contractor occupies under the doctrine of the case of Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. However, plaintiff strenuously asserts that there was a genuine issue as to the relationship between Steurer and Stroup. He contends that there was a basic issue of fact as to whether plaintiff’s employer, Stroup, was a subcontractor of defendant Steurer, or whether there was a joint adventure of these two contractors. This calls, first, for a careful analysis of the evidence before the trial court on that issue.

The evidence as to the actual relationship between Steurer and Stroup was as follows : Plaintiff’s fourth amended petition alleged that Stroup was a subcontractor doing lathing work and that Steurer was a subcontractor doing plastering work, and that both were hired by Moeller, the general contractor. This latter contention is denied by Steurer, and there was nothing in any of the depositions or admissions to indicate that Moeller hired or directly contracted with Stroup. Steurer, in his deposition, testified that customarily in their work the plastering contractor contracts for both lathing and plastering. He said that Stroup had been doing all of the lathing for him on his commercial jobs for several years. He would call on Stroup for a price for the lathing on a particular job, and Steurer then would bid the job with his bid covering both lathing and plastering. If Steurer’s bid was low, he would get the job. Stroup then would go ahead and do the lathing. Payment from the general contractor would come to Steurer in one check and he then would pay Stroup. Steurer testified that this was a subcontracting operation, and he had no right to control Stroup or his men. Stroup, in his deposition, testified that he had an oral contract with Steurer to perform the lathing work on the Mount Tabor job, the agreement being made about one year before March 1, 1960. That would have been prior to the contract of June 2, 1959, between Moeller and Steurer. Stroup further testified that Steurer usually would call him before bidding a job, and Stroup would take the job off the plans and specifications and prepare an estimate. Steurer then would compile his estimate and put the estimates together and send in a bid. With reference to payment, Stroup said that the practice was for him to work a month, prepare an estimate and then send it to Steurer. He was to be paid in thirty days. Any time Steurer has been paid, Stroup has been paid. As a rule, he said, when Steurer isn’t paid by the general contractor, Stroup is not paid, although he had known of times when he pressured Steurer and the latter paid him before payment by the general contractor to Steurer. Stroup said that on this Mount Tabor job he would not have expected pay from Steurer if there had been no payment by Moeller to Steurer. Stroup testified further that if there were any complaints about his work or corrections to be made, Steurer would contact him and he then would handle his men.

Steurer contends that this evidence shows by unassailable proof that Stroup was a lathing subcontractor under Steurer. On the other hand, plaintiff contends that this is not true and that there is a genuine issue of fact as to whether there might be a joint adventure between Steurer and Stroup rather than a situation in which Stroup was a subcontractor of Steurer.

The rule is well estabished that we must view the record on motion for summary judgment in the light most favorable to the party against whom the judgment is rendered. Cooper v. Finke, Mo., 376 S.W.2d 225, 228 [2]. A summary judgment is a drastic remedy and great care should be exercised in its utilization. Cooper v. Finke, supra, 229 [3].

Is there unassailable proof of a subcontractor relationship ? Stroup testified that he had an oral contract with Steurer for the lathing. Steurer said that he had a subcontract with Stroup. Neither, however, undertook to testify as to any details- of the arrangement. They testified to some extent as to customary general practice, but did not undertake to testify as to what this specific agreement was with reference to the amount Stroup was to be paid, how and when it was to be paid, whether Steurer required Stroup to carry compensation insurance, whether there was any sharing of profits or losses, or what the agreement was as to whether payment by Steurer to Stroup was contingent on receipt of payment by Steurer from the general contractor. Stroup testified that he, on request, submitted an estimate figure to Steurer and had a contract for the work even before Steurer received the job. He was not asked, nor did he explain what happened if Steurer was not the successful bidder. Steurer referred to receiving a bid from Stroup. He did not undertake to testify as to whether this was simply a bid subject to acceptance if and when Steurer received the contract.

As indicated above, plaintiff urges that there was sufficient evidence in the record from which it could be found that Stroup was a joint adventurer with Steurer. He cites some cases as supporting this position, the nearest of which on the facts is Ohio Valley Builders Supply Co. v. Wetzel Construction Co., 108 W.Va. 354, 151 S.E. 1. He then contends that a summary judgment should not have been entered, and that the question of fact as to whether Stroup was a subcontractor or a joint adventurer should have been triable by jury.

Upon this state of the record, we are unable to say that there was unassailable proof as a matter of law that Stroup was a subcontractor of Steurer. The facts as developed indicate a subcontract, but there is the possibility, as plaintiff contends, that a development of all the facts might be sufficient to show the existence of a joint adventure between the two parties. Plaintiff’s brief also mentions the possibility that Stroup was a subcontractor to the general contractor, but there is no evidence whatsoever to support this contention. Under these circumstances, we normally would reverse and remand this case for trial. However, as hereinafter set out, we have concluded that plaintiff is not entitled to maintain this common law action against defendant as a negligent third person, regardless of whether Stroup was a subcontractor of Steurer or whether a joint adventure existed between them. Under those circumstances, it would serve no useful purpose to reverse and remand this case for trial.

If we accept the contention of plaintiff that Stroup and Steurer were engaged in a joint adventure, it seems clear that plaintiff could not maintain a third party action against Steurer. A joint adventure has been stated to be in the nature of a partnership, governed by the same rules, but differing in that it usually is limited to a single transaction. Gales v. Weldon, Mo., 282 S.W.2d 522; Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W.2d 109. In Missouri we usually follow the aggregate or common law theory rather than the entity theory as to partnerships. McKinney v. Truck Insurance Exchange, Mo.App., 324 S.W.2d 773, 776. This means that an employee of a partnership is also an employee of each individual partner. Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109 [4]. Assuming that Steurer and Stroup were joint adventurers, the application of the above doctrine regarding partnerships to the instant case would mean that plaintiff was an employee of Stroup and an employee of Steurer. Under those circumstances, plaintiff could not maintain an action for damages against his employer, Steurer, as a negligent third party. Liability would be under the Workmen’s Compensation Act exclusively. § 287.120. We do not find where this question has been passed on specifically in Missouri, but it has been so ruled in other states which follow the aggregate rather than the entity theory of partnerships. Parker v. Zanghi, 45 N.J.Super. 167, 131 A.2d 802, 806; Williams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d 557; Klein v. Pepe (Sup.) 99 N.Y.S.2d 794.

If the arrangement between Steurer and Stroup was not that of a joint adventure, then it was a subcontract arrangement between them, as claimed by Steurer and not disputed by Stroup. Steurer then would be an intermediate subcontractor between Moeller, the general contractor, and Stroup, the lathing subcontractor, and we would have presented the question of whether such an intermediate subcontractor is subject to suit by the employee of his subcontractor as a negligent third party, or whether he (Steurer) under the statute is exempt from such suit as a statutory employer.

The law has been well settled in Missouri since .the case of Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, that under the Missouri Workmen’s Compensation Law, the employee of a subcontractor may not sue the general contractor as a negligent third party for negligence resulting in an “on-the-job” accident and injury to the employee. The general contractor in that situation is a statutory employer of the injured employee under § 287.040. Plaintiff asserts that Bunner v. Patti, supra, is out of harmony with the majority view (a question we do not review herein, as we are concerned with making a correct interpretation of our statute, not with counting noses to see what others have done in construing variously worded statutes). Plaintiff further maintains that doubt is cast on Bunner by the case of Andrews v. Robinson Steel Construction Co., Mo., 355 S.W.2d 890. This latter case was one involving the Illinois Compensation Law, which provided that the general contractor should be liable for compensation to employees of subcontractors unless the subcontractor was insured. It did not involve a construction of the Missouri statute or a statute similar to the Missouri statute, and we do not consider that it affects the Bunner de-cisión. As a matter of fact, in the still later case of Thompson v. Kroeger, Mo., 380 S.W.2d 339, this court reviewed the Bunner case and specifically reaffirmed it.

Basically, the case at bar differs from the Bunner case only in that there is an intermediate subcontractor (Steurer) between the general contractor and the subcontractor employer of the injured plaintiff. Plaintiff states that it long has been the law in Missouri that an employee of one subcontractor may sue another subcontractor on the same job for negligence and that the defense permitted the general contractor under Bunner v. Patti, supra, is not available to the subcontractor. Cases cited are August Viermann Bricklaying Co. v. St Louis Contracting Co., 335 Mo. 534, 73 S.W.2d 734, and State ex rel. W. J. Menefee Construction Co. v. Curtis, Mo.App., 321 S.W.2d 713. In the Viermann case the general contractor on the job was Dunham Construction Company. It made a subcontract with Viermann for the bricklaying work and a separate direct subcontract with St. Louis Contracting Company for stonework on the job. There was no contractual relationship between Viermann and St. Louis Contracting. An employee of Viermann was hurt and paid compensation. Then Viermann, based upon its subrogation rights, sued St. Louis Contracting as a third party for negligence. Understandably, the question of statutory employer was not raised. There was no conceivable basis for holding St. Louis Contracting to be liable to an employee of Viermann for compensation. In the Mene-fee case, the other case referred to above, the principal contractor was Koss Construction Company. It subcontracted certain work to Menefee. An employee of Koss was injured on the job. He then sued Menefee as a third party for negligence. This was held to be permissible, the court recognizing that Menefee was not a statutory employer of Chew, the injured employee of Koss. Menefee could have no liability for workmen’s compensation to him. Thus both of these cases clearly are distinguishable and are not authority for the proposition that plaintiff has a right to sue Steurer.

The precise question with which we are confronted herein is this: In those instances where an owner is having improvements erected, demolished, altered or repaired by an independent contractor, do the provisions of § 287.040(3) and (4) make intermediate subcontractors which are between the general contractor and the subcontractor at the bottom of the chain occupy a status of statutory employer of the employees of their subcontractors? This question has not been decided in Missouri, and we address ourselves thereto.

§ 287.040(4) provides in part as follows: “In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. * * The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney’s fees and expenses of the suit. * * * No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.”

In the Bunner case, 343 Mo. 274, 121 S.W. 2d 153, l. c. 155, this court dealt with the term “immediate” as used in the above quoted section. In the first sentence quoted it was held to refer to the contractor or subcontractor “directly connected with the job or division thereof involved in the accident.” The opinion states this necessarily refers to the remote employer rather than the direct employer of an injured employee because it states he shall be liable as an employer to employees of his subcontractors. This language contemplates a direct employer (subcontractor) nearer the employee. In the other instances the word “immediate” as used in said subparagraph was held to refer to the direct employer of the injured employee. It is clear that the statute makes the immediate (direct) employer of the injured employee primarily liable for compensation, and makes the intermediate subcontractor or subcontractors and finally the principal contractor secondarily liable “in their order.” In other words, this liability is on an ascending scale. Applied to the instant case, the primary liability to plaintiff was that of Stroup. If Stroup had not carried insurance, the next one responsible for compensation would have been Steurer, and finally Moeller. Clearly, therefore, a burden in the form of secondary responsibility for compensation is imposed by the statute on Steurer, the intermediate subcontractor, just as this court found the general contractor to have such an obligation in the Bunner case.

The next question is whether he also is granted under the statute the same immunity as employer from suits based on negligence which is accorded to the general contractor under the statute as interpreted in Bunner. Plaintiff contends that subparagraph (3) of § 287.040 makes only the general contractor a statutory employer of the employees of his subcontractors and that intermediate subcontractors are not accorded such status. We cannot agree. Sub-paragraph (3) reads in part as follows: “ * * * but such an independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.” Plaintiff would equate the term “independent contractor” to principal or general contractor, but it is significant that the section says that the “independent contractor” is deemed the employer of employees of subcontractors “when employed on or about the premises where the principal contractor is doing work.” (Emphasis supplied.) This indicates that the “independent contractor” and the “principal contractor” are not necessarily one and the same. The "principal contractor” doing the work for the owner is an independent contractor, but an independent contractor need not be the “principal contractor.” Each subcontractor in the chain actually would be an independent contractor. If we construe the term “independent contractor” as meaning each subcontractor in the chain, rather than principal contractor, as plaintiff would do, each such subcontractor then would be the statutory employer of the employees of any subcontractors under him. This would mean that the legislature gave the same immunity and treatment to all those on whom it imposed secondary liability for compensation. Such construction further recognizes that the legislature intended a difference when in subparagraph (3) it referred to “independent contractors” working on premises where the “principal contractor” was doing work. We must confess that the language of subparagraph (3) could have been more clearly stated, just as it would have been better in subparagraph (4) not to have used the term “immediate” with two necessarily different meanings. However, when the two subparagraphs (3) and (4) are read and construed together, and an attempt is made to give meaning and effect to all words therein, we think the /proper interpretation is the one we have made. To hold otherwise necessarily means that the legislature intended to and did impose secondary liability for compensation on an ascending scale from the immediate employer of an injured employee up through other subcontractors in the direct line and finally to the general contractor, but that the corresponding immunity as employer was accorded only to the immediate employer at the bottom of the chain and to the general contractor at the top. Intermediate subcontractors, although responsible for compensation ahead of the general contractor, would be subject to suit for damages for negligence as stranger third parties, plus having a secondary compensation liability converted to primary liability where the injured employee was insured by his immediate employer. Furthermore, we would be holding that the legislature had imposed liability for compensation on ones who were not employers, contractual or statutory, with reference to the injured employee, whereas the whole theory of workmen’s compensation is liability for injury, regardless of fault, arising out of the employment relationship. We cannot so construe the statute. We hold that Steurer was a statutory employer of plaintiff.

Finally, says plaintiff, even if the statute makes an intermediate subcontractor a statutory employer, the defendant Steurer could not be excused in this case for the reason that Stroup carried compensation insurance, and consequently, under the last sentence of subparagraph (4) of § 287.040, Steurer had no liability for compensation to this plaintiff. The sentence in the statute relied on by plaintiff reads as follows: “No such employer shall be liable as in this section provided, if the employee was insured by his immediate or intermediate employer.” Identically this same contention was raised in the Bunner case. There, as here, the immediate employer of the injured employee actually carried compensation insurance. In disposing of that contention, the court pointed out that although the sentence in question provided that a remote employer would not be liable if the injured employee was insured by his immediate or any intermediate employer, it did not say that he no longer would be deemed an employer, nor did it state that he would be considered as outside the protection of the act in that event. As the court in Bunner says, 121 S.W.2d l. c. 156, “There is no disclosure of any legislative intent to outcast a remote employer because he avails himself of a condition contained in the subsection, by requiring his subcontractors to carry liability insurance.” Judge Ellison went on to point out further that a contrary result would penalize a contractor who complied with the intent and spirit of the act by requiring his subcontractor to provide workmen’s compensation insurance. If the contractor did not require his subcontractor to carry compensation insurance, the contractor, under the act, would be liable for compensation to an injured employee of the subcontractor, but this would be the limit of his liability. As a statutory employer he would not be subject to an action for alleged negligence. § 287.120. Furthermore, his obligation for compensation would be a secondary liability and he could seek reimbursement therefor from his subcontractor. On the other hand, if the contractor required his subcontractors to carry insurance, the acceptance of plaintiff’s contention that this eliminates any immunity as a statutory employer would subject him to the following: (1) He would absorb the compensation insurance premium which the subcontractor obviously would include in his price to the contractor; (2) the injured employee would recover compensation from the subcontractor’s insurance carrier, which could then exact reimbursement from the remote contractor, thereby converting what was a secondary obligation for compensation on the remote employer to a primary obligation, and (3) the injured employee would have the right to recover common law damages for negligence from the remote employer. Such a construction, as pointed out in more detail in the Bunner case, does not accord with the object and purpose of the law, or with reason, and it is a construction which we reject. We reaffirm the views expressed in the Bunner case.

The judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Ed NIBARGER, Appellant.
    No. 50910.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Rehearing Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Wilbur L. Pollard, Sp. Asst. Atty. Gen., North Kansas City, for respondent.
    Robert C. Frith, Chillicothe, for defendant-appellant.
   HOLMAN, Judge.

Defendant, Ed Nibarger, was charged with the murder (first degree) of Milo Har-kins. He was found guilty of manslaughter and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of five years. See §§ 559.010, 559.070, and 559.140 (all statutory references are to RSMo 1959, V.A.M.S.). Defendant has appealed from the ensuing judgment and here contends that the court erred (1) in giving an instruction on manslaughter because there was no evidence to support it, and (2) in excluding certain evidence offered by him.

Defendant admitted that he killed Har-kins. His defense was justifiable homicide in that the killing was alleged to have been in the lawful defense of his person.

The defendant lived in the town of Wheeling, Livingston County, Missouri. His 79th birthday occurred on November 25, 1963. He lived with his second wife and had several adult children that had been born to his first marriage and also several that were horn of the second marriage, the youngest being Carolyn, aged 16. A number of relatives gathered at defendant’s home on November 25 to celebrate his birthday. During the afternoon his daughters, Hazel Overton and Louise Myers, arrived as did his stepdaughter, Nellie Boxx, and Milo Harkins and Harkins’ two small sons. Nellie testified that she had been Harkins’ housekeeper for two years and had cared for his children. There was other evidence indicating that there may have been a more intimate relationship existing between them. Late in the afternoon defendant’s son, Everett Nibarger and wife, Howard Durnell and wife, and Pauline Poindexter and husband arrived at the Ni-barger home.

According to the State’s evidence, after dinner, the men sat around the kitchen table and played cards. Some of them were also drinking beer and whiskey. At about 10 p. m., Carolyn came home. Shortly thereafter a number of the guests left. Defendant went outside to bid farewell to tnose who were leaving. When he returned to the kitchen his wife, Carolyn, Nellie Boxx, and Milo Harkins were sitting at the kitchen table. Defendant started cursing his wife, saying that she was a “no-good bitch and he wouldn’t do anything for her.” Harkins told him a number of times that he should not talk like that. Defendant then went into his bedroom which adjoined the kitchen and was heard “pushing things around,” and was then seen putting a shell into his shotgun. Harkins walked over to the bedroom door and said, “I wouldn’t do that if I were you.” The gun was then discharged and the witnesses saw Harkins grab his side. He was able to reach the kitchen table and sat down in a chair where he was found to be dead when the officers arrived a short time later. The fatal charge entered Har-kins’ abdomen a few inches above the navel. Deceased was 28 years old at the time, 6' 3" tall, and weighed about 180 pounds.

Carolyn Nibarger and Nellie Boxx both testified for the State. In an effort to impeach these witnesses an attempt was made on cross-examination to show that defendant had told deceased and Nellie Boxx to stay away from his home. Nellie denied that defendant had made such a statement. An effort was also made to show that defendant had frequently told Carolyn that he objected to her going out with married men, staying out late, or staying overnight with Nellie and deceased. Carolyn denied that any such statements had been made to her.

Defendant testified that when he returned to the kitchen deceased said, “I am going to knock your ears down,” and that he replied, “You ain’t done it yet”; that he then went into his bedroom and deceased “crowded me in there, said he was going to hit me”; that he was back against the north wall and deceased was near the door moving toward him and he then shot him. When asked why he did it, defendant replied, “Just because I didn’t want to be killed. * * * I figured if he got hold of me it would be all day for me.”

Defendant further testified that on the previous July 4, deceased and Nellie were in his home and he told them to get out; that deceased then hit him and he was unconscious for two hours; that when he regained consciousness no one was at home. Defendant was also permitted to testify, without objection, that he had told deceased and Nellie to stay off the place; that he had told Carolyn a number of times that he objected to her running around with married men, staying out late at night, and objected to her running around with Nellie because “she was no good,” and that he didn’t want Carolyn visiting Nellie and Harkins.

Defendant’s daughter, Alice Wilson, and his son, Everett Nibarger, each testified in his behalf. Their testimony will be referred to hereinafter in connection with certain contentions of error concerning the exclusion of evidence.

As stated, defendant’s first point is that there was no evidence to warrant the giving of an instruction on manslaughter and that the court therefore committed prejudicial error in giving such an instruction. We need not determine whether there was evidence which would have supported a manslaughter submission because, even if we assume there was not, the defendant may not complain of that alleged error.

Section 556.220 provides, in part, that “any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” Because of the quoted provision, and also on the theory that any error in that regard would be favorable to the defendant, we have repeatedly held that when a submissible case is made as to murder, the defendant is not entitled to complain that there was no evidence to support a given manslaughter instruction of which offense defendant was convicted. State v. Wallach, Mo.Sup., 389 S.W.2d 7; State v. Chamineak, Mo.Sup., 343 S.W.2d 153 [3]; State v. Garrett, Mo.Sup., 282 S.W.2d 441 [3]; State v. Parker, 321 Mo. 553, 12 S.W.2d 428 [10]. We accordingly rule this point adversely to defendant.

Defendant’s remaining contention is that the court erred in refusing to permit testimony on the part of defendant, Everett Nibarger, and Alice Wilson to the effect that defendant stated to Nellie and Harkins that he objected to their presence in his home and also made statements to Carolyn objecting to her conduct in the respects heretofore stated. There is certainly no merit to this contention insofar as it relates to the defendant’s testimony. As we have heretofore indicated, he testified as fully as he desired regarding the matters herein mentioned. There was also no error in connection with the testimony of Alice Wilson. Because of technical deficiencies the court sustained some objections which temporarily excluded the evidence, but before her testimony was completed this witness testified that she had heard defendant tell Nellie and deceased that he would rather they would not come to his home; that he had also told Carolyn that he obj ected to her staying overnight with Nellie and objected to her conduct in other respects.

Everett Nibarger testified that defendant, in the presence of Carolyn, told Nellie and deceased “to go home and stay away from there, that he did not want them dragging Carolyn around, she was too young for that kind of company.” However, the following proffered testimony was excluded: “Q. Did you ever hear your father talk to Carolyn about her conduct? A. I heard him try to. Mr. Chapman: Objection, not admissible, the deceased not being present. The Court: The objection sustained. Mr. Frith: The defendant offers to and will prove by this witness that on numerous occasions in the home at Wheeling he has heard Ed Nibarger tell Carolyn Nibarger that he didn’t want her to quit school, that he didn’t want her to be running around with and staying all night with Mrs. Boxx and Milo Harkins, that he did not want her to be running around with married men and that Carolyn Nibarger at those times would walk out of the room.” If we assume that Carolyn resented the objections her father made to her conduct, it would seem that the proffered testimony would have been admissible as tending to prove an adverse feeling against defendant on the part of Carolyn, who was an eyewitness to the shooting and testified for the State. Assuming that the court erred in excluding that testimony we are convinced that the error was not prejudicial. This for the reason that defendant and Alice Wilson both testified that defendant had made statements of that nature to Carolyn. “The improper rejection of evidence is not prejudicial error when the same or substantially the same evidence is otherwise admitted.” State v. Wells, Mo.Sup., 305 S.W.2d 457, 459. Moreover, Carolyn testified that she had not spoken to her father since the date of the homicide. That fact was almost conclusive evidence that she did not have the normal feelings of interest and affection that a daughter ordinarily would have for her father. We rule that no reversible error occurred in the exclusion of evidence offered by defendant.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    Marvin A. TOMLINSON, Robert J. Schaaf, and Edward McEntee, Beneficiaries of the Firemen’s Pension Fund of Kansas City, Missouri, Appellants, v. KANSAS CITY, Missouri, a Municipal Corporation, and Firemen’s Pension Fund of Kansas City, Missouri, Respondents.
    No. 51086.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Opinion Modified on Court’s Own Motion July 12, 1965.
    Motion for Rehearing or for Transfer to Court En Bane Denied July 12, 1965.
    Slaughter & Brewster, Roger C. Slaughter, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, George DeBitetto, Asst. City Counselor, John J. Cosgrove, Assoc. City Counselor, Kansas City, for respondents.
   WELBORN, Commissioner.

This case, McEntee, et al., v. Halloran, et al., Mo., 391 S.W.2d 266, and State ex rel. Mining, et al., v. Davis, et al., Mo., 391 S.W.2d 896, decided this date, involve the same general circumstances pertaining to the operation of the Firemen’s Pension Fund of Kansas City.

Pursuant to Section 1 — (56) and Section 33 of the Charter of Kansas City, the City Council in 1953 established a Firemen’s Pension System for employees of the Fire Department of Kansas City. Apparently the system so established was designed to supersede the system previously in operation under Sections 86.640 to 86.713, RSMo 1949, V.A.M.S. The ordinance relating to the system now appears in Chapter 19 of the Revised Ordinances of Kansas City.

The general administration of the system is in the hands of a Board of Trustees consisting of the following city officials, ex officio: Director of the Fire Department, Director of Finance, Director of Personnel and the City Treasurer. In addition three members of the Board of Trustees were elected by the members of the pension system.

Section 19.210 as originally enacted provided :

“(1) Two years after the establishment of the pension system, and at least once in each five-year period thereafter, the board of trustees shall cause an actuarial investigation to be made into the mortality, service and compensation experience of the members and beneficiaries of the pension system and shall make a valuation of the assets and liabilities of the funds and securities of the system, and, taking into account the results of such investigation and valuation, the board of trustees shall thereupon:
“(a) Establish for the pension system such mortality, service and other tables as shall be deemed necessary; and,
“(b) Certify the rate of contributions payable out of the treasury of the city.
“(2) On the basis of such tables, the board of trustees shall make an annual valuation of the assets and liabilities of the funds of the system.”

Section 19.290 as originally enacted provided :

“The city shall contribute to the pension fund quarter-annually, or at such lessor (sic) intervals as may be agreed upon by the city and the board of trustees. Such contributions shall be in addition to and separate from the appropriations made by the city for the operation of the fire department. For each fiscal year of the operation of the pension system, the city’s contribution to the pension fund shall be a sum equal to but not to exceed ten per cent of that portion of the compensation paid to members of the pension system during such fiscal year from which a deduction of five per cent has been made; provided, however, that if the actuarial study required by Section 19.210 shall show that a smaller or larger amount is required to meet the minimum contributions needed to make the pension system actuarially sound as certified by the actuaries, that is, to meet the full current service contributions plus one year’s interest on the unfunded service liability, the board of trustees shall promptly so advise the city, and the city may reduce or shall increase its contributions to the pension system to conform to such report, so as to keep the pension fund actuarily (sic) sound.”

Sometime prior to May 1, 1955, the actuarial study contemplated by Sections 19.210 and 19.290, supra, was made. The study revealed that, to keep the pension plan ac-tuarially sound, the City’s contribution should be increased from 10% of that portion of the compensation paid to members of the plan to 14½% of such compensation. In accordance with Section 19.210, the Board of Trustees notified the City that, as of the fiscal year beginning May 1, 1955, the City should, under the ordinance, increase the City’s contribution to the fund by 4½%. The City Council declined to increase the contribution to 14½%, but continued the same at the 10% rate through the fiscal year ending April 30, 1959. In 1959, the City did appropriate an additional $67.-212.83 to the Fund. However, the difference between the amount which the City would have contributed at the rate of 14½% and that actually contributed at the 10% rate, plus the additional appropriation above mentioned, was in excess of $400,000 for the period in question.

By this action, filed May 6, 1964, three members of the Kansas City Fire Department, acting on their own behalf as beneficiaries of the Firemen’s Pension Fund of Kansas City and on behalf of all others similarly situated, brought suit against the City of Kansas City, seeking judgment for $418,754.98, the amount they alleged the City owed the Fund, with interest at the rate of 3% per annum from May 6, 1959, and “reasonable attorneys fees.” The Firemen’s Pension Fund of Kansas City, Missouri, was named a party defendant. The plaintiffs alleged that the Fund should have been a party plaintiff, but, having declined to bring the action, it was named a party defendant. An answer was filed by the City of Kansas City and, on the City’s motion for judgment on the pleadings, the trial court entered judgment dismissing the plaintiffs’ petition. This appeal followed.

The petition in this case alleged generally the basic facts above set out relating to the establishment and operation of the Kansas City Firemen’s Pension Fund and the City’s refusal to increase the rate of its contribution from 10% to 14½% for the period beginning with the fiscal year May 1, 1955 and ending April 30,1959.

The plaintiffs who sued as beneficiaries of the Fund were also the elected minority trustees. They set out their efforts to obtain action by the Board of Trustees and the refusal of the Board to act. In their petition the plaintiffs alleged that the ex officio trustees had refused to discharge their duties at the advice and direction of the officials of the defendant Kansas City.

By its answer, the City contended that neither of the sections of the ordinance relied upon, Sections 19.210 and 19.290, “were binding upon the Council of Kansas City; that the Council was not required to contribute to the Firemen’s Pension Fund a sum of money recommended by the actuary * * * or any other amount; that any attempt to bind themselves to make contributions to the Firemen’s Pension Fund, as recommended by said actuary, would be an unlawful delegation of legislative power, wholly unenforcible at law.” The City also alleged that the Firemen’s Pension plan was a gratuity within the discretion of the Council to abolish in whole or in part and that the ordinance imposed no legal obligation upon the Council and it was not legally bound by any provision of the ordinance. The City denied that there was any amount due the Firemen’s Pension Fund because Kansas City was not obligated to contribute anything to the Fund and such contributions as it might make were solely within its legislative discretion.

The City by its answer also alleged the enactment of 1961 amendments to the Pension Fund Ordinance which purported to eliminate the mandatory language of the provisions relied upon by the plaintiffs. The answer further alleged that the Council had, “in its discretion,” contributed $1,744,119 to the Fund for the fiscal years 1959-1960 through 1963-1964 and had budgeted approximately $480,000 for that purpose for the fiscal year 1964-1965. The City alleged that the reserve of the Fund had increased from $243,672 on June 30, 1955 to in excess of $4,000,000 as of March 31, 1964, “after all pensions had been paid, thereby rendering said fund financially sound to pay all pensions as they accrue.”

Appellants contend that the ordinance which established the Firemen’s Pension Fund created a contractual relationship between the City and the beneficiaries of the Fund. “The city having created this contractual relationship is obligated to carry out the terms of the ordinance, which in effect, was a contract between the city and the firemen with respect to pension benefits, and the city cannot escape its obligation by abolishing the pension system, or by altering it to the disadvantage of the firemen who were parties to the contract and whose pension rights had become vested, without waiver on the part of the firemen beneficiaries.” Appellants further contend that the pensions do not constitute a gratuity but are deferred compensation designed to induce the firemen to remain with the City. In determining appellants’ contentions, we consider only such facts as were well pleaded in appellants’ petition below, the case having been ruled there on respondents’ motion for judgment on the pleadings.

Many cases have considered the nature of a public employee’s interest in the benefits provided by a retirement or pension system. As noted in State ex rel. Breshears v. Missouri State Employees’ Retirement System, Mo.Sup., 362 S.W.2d 571, 575: “There is much confusion in the adjudicated cases as to the nature of the interests created by pension and retirement plans. One need only examine the extended, state by state, annotation appearing at 52 A.L.R.2d 437, to appreciate this.” The author of that annotation entitled “Vested right of pensioner to pension” states (52 A.L.R.2d 441) : “Development of the law on the question under annotation has been long and tortuous, reflecting the increasing pressure placed upon the judiciary by the evolution of the now generally accepted theory that pensions are a part of the compensation of an employee to which, under ordinary circumstances, he is as much entitled as he is to the wages paid him for the work he has actually performed.” See also State ex rel. Phillip v. Public School Retirement System, 364 Mo. 395, 262 S.W.2d 569, 576-578(6, 7).

By far the greater number of cases which have been decided by appellate courts throughout the country involve the extent of the authority of a body which creates a retirement system subsequently to change the system in a manner which adversely affects the members. See 52 A.L.R.2d Annotation, supra. Such was State ex rel. Phillip v. Public School Retirement System, supra, and to a degree State ex rel. Bresh-ears v. Missouri State Employees’ Retirement System, supra.

In both Phillip and Breshears, supra, the court en banc recognized that under certain circumstances and for certain purposes the interest of a member of a public retirement system may attain a contractual or vested status. However, both of those cases involve the question of the effect of subsequent legislation upon the interest of members in a system established by legislation which specifically provided that subsequent legislation should not impair or diminish the interest originally established. In both cases the court expressly took notice of such provision. 262 S.W.2d l. c. 578; 362 S.W.2d l. c. 575.

There is no allegation in the plaintiffs’ petition that the ordinance establishing the Kansas City Firemen’s Pension System contained a similar provision. The statement in defendants’ brief that no such provision was to be found in the ordinance is not challenged. We note that, in the related State ex rel. Mining v. Davis, Mo., 391 S.W.2d 896, decided herewith, the appellants’ brief acknowledges that there is no provision prohibiting amendments altering existing rights.

Under such circumstances we are of the opinion that the Kansas City ordinance did not impose upon the City a contractual obligation such as would give rise to an action for a money judgment against the City for failure to contribute in accordance with the terms of the ordinance. Constitutional (Sec. 26(a) of Article VI, Constitution of Missouri, 1945, V.A.M.S.) and charter (Kansas City Charter, Article IV, Secs. 81-95) provisions for the management of the City’s fiscal affairs require that abrogation of council control over the municipal budget should not be presumed absent a clearer intention to such effect than is here apparent. Actuarial soundness is a creditable objective for a pension system, but overall municipal financial stability is a consideration which cannot be ignored. Admittedly the language of the particular provision of the ordinance in question is mandatory in its terms, but there is no allegation from which it can be determined that the over-all scheme of the pension system supports the conclusion that the City’s obligation was such as would authorize the judgment sought in this action. See State ex rel. Phillip v. Public School Retirement System, 262 S.W.2d l. c. 574.

The right or interest of the beneficiaries to maintain this action is not enlarged by reason of the fact that the question here presented is not one of the effect on their rights of subsequent municipal legislation, but is the effect of inaction on the part of the city council. In neither event do plaintiffs have such a vested interest in the manner of the City’s financing the system as will support the action. State ex rel. Police Retirement System v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 72(6).

In Atchison, et al. v. Retirement Board, Mo.Sup., 343 S.W.2d 25, 34, this court recognized that after a member of a retirement system had contributed to the fund through the years, attained the retirement age, met the service requirements and applied for and was granted a pension, his rights became “finally vested.”

In this case there is no contention that the beneficiaries of the system are not receiving the pensions which the ordinance grants. The claim is based solely on the fact that the City’s contribution was not made at the rate determined by the actuary to be necessary to maintain the actuarial soundness of the system.

Thiesen v. Dearborn City Council, 320 Mich. 446, 31 N.W.2d 806, involved an action for mandamus by members of a municipal retirement system to compel the city to contribute to the fund the amount certified by the retirement board, determined in accordance with an actuarial study. In that case, the court stated (320 Mich. l. c. 454, 31 N.W.2d l. c. 809):

“The trial court, however, held that there was a contract between the employees and the city, under which the employees are bound to contribute 5 per cent of their earnings and the city is bound to contribute the amount determined by the board of trustees. We are not in accord with this conclusion. The city has in no sense defaulted on payments of any amounts due to any employees. There has been no breach of any contract, nor does the council and mayor think there will be if the appropriation is not made for the year. Were the city to repeal the ordinance and endeavor to keep the amounts paid in by employees, the question of breach of contract might arise. We do not anticipate such a condition, and therefore, need not discuss it. The rights of municipal employees in pension funds is fully discussed in Brown v. City of Highland Park, et al., 320 Mich. 108, 30 N.W.2d 798.”

Plaintiffs in their brief have cited no case in which it has been held that the City’s obligation to contribute to a pension system is contractual in nature. The cases of Hickey v. Pension Board of City of Pittsburgh, 378 Pa. 300, 106 A.2d 233, 52 A.L.R. 2d 430, and Maybury v. Coyne (Kentucky), 312 S.W.2d 455, dealt with the right of a retired employee to accept further employment by a different governmental agency following retirement. In both cases the court held that, where no such limitation had been attached originally, the member’s right to accept further employment upon retirement could not be restricted. Police Pension and Relief Board of City and County of Denver v. Bills, 148 Colo. 383, 366 P.2d 581, dealt with an amendment to a city retirement system which would have been disadvantageous to the system members. State ex rel. O’Donald v. City of Jacksonville Beach (Fla.App.), 142 So.2d 349, likewise involved an amendment which altered the rights of beneficiaries.

The trial court properly concluded that the action could not be maintained and properly dismissed the petition.

The judgment is affirmed.

HOUSER and HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    Vern ROBSON, an Individual, doing business as Sac City Construction Company, and Sac City State Bank, Assignee, Respondents, v. UNITED PACIFIC INSURANCE COMPANY, an Insurance Corporation, Appellant.
    No. 50837.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Bane Denied July 12, 1965.

      Wm, F. Milligan, Glenn E. McCann, Kansas City, Thomas L. McCullough, Sac City, for respondents.
    Lucian Lane, Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for appellant.
   EAGER, Presiding Judge.

This is a suit by a subcontractor and his assignee upon a performance and payment bond furnished to cover labor and materials on a government project. The defense is that the subcontractor did not properly perform his contract and is not entitled to the balance allegedly due. Plaintiff-assignee recovered judgment, in a trial without a jury, for $15,754.23 and, after the overruling of several after-trial motions, this appeal followed.

The United States Army awarded a general contract to J. W. Bateson Company of Dallas, Texas, for the construction of 1,329 housing units for military personnel at Ft. Leonard Wood, Missouri. Bateson let a subcontract to Tetyak Construction Company, a Missouri corporation, for the construction of approximately 21 miles of streets, drives and carports. That contract, dated September 22, 1958, required Tetyak to furnish all material and perform all work described in accordance with the conditions, plans and specifications prepared by the Corps of Engineers. The work included the laying of a “base course aggregate” of crushed rock according to the specifications to which we shall refer later. It also required the laying of the actual asphalt, but our controversy does not reach that stage. Tetyak acquired, by purchase or lease, land on the Roubidoux River (apparently dry) some 7-8 miles from the job as a source of river gravel. The evidence shows, without contradiction, that his superintendent Richard E. Peterson and probably Tetyak himself, were warned in advance by local people that this type of rock when crushed might not “key in” or settle down to a tight mixture as required for the base of the streets, without the use of some “additive”; in other words, it might not be compact enough. Peterson then investigated the possibility of obtaining dolomite rock dust as such an additive. Tetyak also purchased or leased a “mixer” at substantial cost, which he located near the construction site, several miles from the river. All this occurred before Robson, the plaintiff, entered the picture.

Tetyak had no rock crushing equipment and plaintiff Robson was recommended to him; Robson’s headquarters were in Iowa. Robson, Tetyak and Peterson met several times on the site to discuss the situation. On or about February 24, 1959, plaintiff Robson and Tetyak Construction Company, Inc., executed the contract now in issue. It recited that Tetyak had rock for crushing but did hot have crushing facilities to meet the standards required by the specifications, and that plaintiff had agreed to crush the rock delivered to him at his plant to be established; it was further provided therein that: “The contractor agrees to crush all rock supplied to him at his plant site at Fort Leonard Wood, Missouri, by the owner, in such quantities and sizes as is necessary to meet the specifications for base material and asphalt aggregate material hereunto attached. The contractor shall reject any rock supplied to it by the owner which cannot be processed by the contractor to satisfactorily meet the specification requirements. Crushed rock base material and asphalt aggregate material shall be delivered by the contractor at his plant site. Owner agrees to take material from plant.” The price agreed upon for crushing the base material was 41 cents per ton; there were certain more or less formal provisions regarding progress payments, final payment, insurance, bonds ana time of performance. The contract concluded with the following provision : “The Owner may order changes in the work, the Contract sum being adjusted accordingly. All such orders and adjustments shall be in writing. Claims by the Contractor for extra cost must be made in writing before executing the work involved. The Owner shall furnish the name or names of his agents or representatives authorized to order, direct, approve and sign for changes or extra work to be performed by the Contractor.” It was shown that Peterson, Tet-yak’s superintendent, prepared this contract, apparently by using portions of other contracts and by improvising the parts specifically applicable here. It is not contended that Robson had any part in íes actual preparation. The contract recitea that the specifications were attached, but in tact they were not; Robson testified that he had gone over them with Tetyak and Peterson. He further testified that Tetyak and Peterson had then stated that they knew that the material to be used would not “match” the specifications exactly, and that he, Robson, knew from what they told him that something would have to be added to the rock which he crushed. We will ordinarily refer to Robson as the plaintiff, for convenience.

In late February or March, 1959, plaintiff moved in his crusher and set it up at the river bank. Peterson was in full charge of the operations of Tetyak except for those occasions, perhaps once in two weeks, when Tetyak was present himself. Peterson stated that he was in charge probably 80% of the time. The Tetyak employees scooped the gravel out of the riverbed and delivered it to the intake of the crusher; they also took it in the crushed form in trucks immediately from the crusher belt and hauled it to such locations as they chose. At the trial there were strenuous objections to evidence of the various conversations and dealings between Peterson and plaintiff and to the directions given by Peterson; this, upon the theory that plaintiff had pleaded only the written contract, was bound by it, and that he was thus seeking to vary it by parol, and to recover upon a different and partly oral agreement. The trial court heard the testimony and, in the view we take, it is necessary to recite its substance. From the beginning of the crushing in March, 1959, the laboratory of the Corps of Engineers made “sieve tests” and other tests of the crushed rock to see if it met the gradation and plasticity requirements of the specifications. It will be unnecessary to describe these tests in detail. The principal requirement of the specifications, so far as we are concerned, was that the crushed rock going into the streets should consist of a mixture of specified percentages of varying sizes, with some leeway allowed in each grade; the permissible sizes (actually in six gradations) were from slightly over one inch to a very finely crushed material, perhaps dust-like. Some of the samples were taken from the crusher, some from a stockpile which Tetyak established about a mile from the project, some from piles where the crushed rock had been dumped, and some from the base actually laid for streets; some of these test samples were taken by Peterson, some by the engineers. Twenty-five of thirty-two samples were reported as deficient in gradation (or otherwise), most frequently because too much of the material was passing through the one-half inch screen although, as Peterson testified, the rock too often ran in “the middle area” with not enough fine and not enough coarse. Peterson discussed the situation with the engineers almost daily and with Robson or his son almost continuously ; he directed Robson as to the settings of his crusher and from time to time had him crush specific sizes which were taken away to mix in with rock already crushed. No complaint was made at any time to plaintiff by Tetyak or Peterson about the manner of his crushing operation or its results. During all this time it is indicated that Tetyak was operating his mixer at the job site attempting thereby to obtain the specified gradations. At one time Peterson had plaintiff dig up, screen, and furnish some fine loam soil to be used at the mixer as an additive, in an attempt to get the mixture to compact or “key in”; Peterson testified that Tetyak would not or could not (financially) bring in the dolomite rock dust which was the additive element really needed ; also, that they were handicapped by the very wet spring and, to some extent, by deficiencies in the original sub-base laid by someone else. Peterson made the significant statements that: “Well, we told them what sizes to crush — we crushed the rock as close to the specifications * * * as was possible with the type of rock.” Peterson and Tet-yak had thus assumed a mixing operation of the crusher run, coarse rock and loam soil, in which they eventually failed. Peterson described plaintiff’s crusher as a normal one, the type commonly used; he testified on cross-examination: that “we” were looking for someone who knew how to crush rock so that it would meet the specifications (by an affirmative answer to a leading question), but added that they wanted someone who would “crush the rock so we could complete the Bateson job”; that the approval of the riverbed gravel by the engineers merely meant that they would accept it as rock, i. e., that it was hard enough, if it could be processed to specifications, but that this rock would not initially crush into the required gradations with Robson’s crusher or any crusher; that “we” did not think in advance that the rock would come off the crusher to meet the specifications, and that he felt that the crushing was properly done. Plaintiff testified: that from what Tetyak and Peterson told him in the first place he doubted that the rock could be crushed to specifications without mixing in an additive; that he had examined the specifications before signing the contract but that he had no copy, and that he crushed the rock just as he was directed to do it from time to time. Peterson was not an officer of the Tetyak Corporation. Tetyak defaulted on the job in early June, 1959, after paying plaintiff only $7,000. The paving job was then completed by a new subcontractor, O’Donnell Brothers Construction Company. Plaintiff pulled out his crusher shortly after Tetyak’s default.

Mr. Frank S. Gilmore, a consulting engineer of wide experience in road building and like fields, testified for defendant; generally, his testimony was: that he visited this job site on behalf of defendant United Pacific for two or three days beginning about June 15, 1959; that he saw the riverbed gravel, and the various piles of crushed rock; that plaintiff’s crusher was still there; that the crushed rock he saw laid on the streets was predominantly coarse and not tightly compacted; that one pile he saw was too fine; that the tests employed by the Corps of Engineers were nationally recognized and standard tests; that he later acted as a consultant for O’Donnell Brothers and was asked for an opinion as to whether the material was “useable”; that O’Donnell did use the same gravel, but he moved in processing equipment “which includes crushers, two or three crushers sometimes, screens for separating the various sizes and then for recombining after * * the material has been crushed and separated * * * ”; that this equipment produced a satisfactory end product; that much of the material which O’Donnell used from the riverbed was “finer” because the coarser material had already been “skimmed off.” He further testified: that 1J4 inch gravel was not acceptable in the specifications; that it is more difficult to crush river gravel to specifications than ordinary rock; that some of the stock pile material left by Tet-yak and some of the aggregate laid as a base in streets was removed and reprocessed at substantial expense, and was thus used for asphalt aggregate; that none of the rock crushed by plaintiff was eventually used on the streets except through such reprocessing; that contractors frequently do maintain a mixing machine at the job site to blend the crushed rock; that O’Donnell took a fine material out of the riverbed consisting of sand and silt and perhaps a little clay, and blended this in as an additive; that O’Donnell had and used a separate piece of equipment known as a “Pug Mill” for the final blending of the materials, whereas Tetyak had apparently been attempting to do that job with a cement mixer.

Tetyak Construction Company was named as a defendant, but it was never served and it dropped out of the case. There is no real controversy over the amount of rock crushed nor indeed over the amount of the judgment rendered, defendant insisting that nothing is due. It is conceded that Robson assigned all of his interest to the Sac City State Bank, which is now the real plaintiff but, as already indicated, Robson will frequently be referred to as the plaintiff, as a matter of convenience.

The trial court found in part: that plaintiff had performed all the conditions required of him by the contract; that he had crushed to the specifications supplied by Tetyak and according to its directions; that Tetyak took the material and accepted it as satisfactory in so far as plaintiff was concerned; that Tetyak expected to “blend” the rock and attempted to do so, and that all concerned knew that “additives” would be necessary; that plaintiff was not required by its contract to “blend” the rock; that Tetyak waived any requirements which there may have been that the rock be crushed according to the engineers’ specifications or any specifications except Tet-yak’s. Its conclusions of law were, in part: that United Pacific could not assert any defense which Tetyak could not have asserted; that any ambiguities should be construed against Tetyak and its surety since they prepared the contract through Peterson; that plaintiff had performed all of the conditions of his contract and was entitled to judgment, as aforesaid.

We shall refer to the United Pacific Insurance Company as the defendant. It insists here: that plaintiff pleaded the written contract and his performance thereof as the sole basis of his action, that he is bound by its terms, and that he must recover strictly upon it if at all; that the court committed error in admitting testimony to alter and vary the terms of the contract and in permitting a recovery upon a supposed new oral agreement; that plaintiff totally failed to perform his written contract, since his product did not meet the engineers’ specifications, and that the surety is entitled to make this defense; and, lastly, that since this bond was given for construction on United States property where no lien may be asserted, plaintiff may not recover because the bond stands in lieu of a lien and no part of plaintiff’s product entered finally into the construction. The plaintiff, aside from assertions of certain recognized procedural rules, argues: that the courts will accept as performance of a contract that which the parties themselves have agreed upon and have accepted as such; that any and all ambiguities must be resolved against the defendant, and that in such instances the interpretation placed upon a contract by the conduct of the parties is of great weight; that the surety may not assert any defense which the principal could not have asserted, and that it is estopped if the principal would be es-topped; that the federal law does not require, as a condition to recovery, that the materials shall have actually gone into the construction.

We shall not consume time or space in the discussion of well-recognized principles presented, such as the mode of appellate consideration in a jury waived case. Civil Rule 73.01(d), V.A.M.R.; Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 850; Norman v. Durham, Mo., 380 S.W.2d 296. It is true that ordinarily a plaintiff may not declare upon an express written contract and recover upon some other agreement. Papen v. Friedmeyer, Mo.App., 255 S.W.2d 841, 845; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137, 69 S.W. 384. But, in passing, we note that it is difficult to find or state a rule of contract law which does not at times have its variations or exceptions. We do not consider it decisive here that a copy of the engineers’ specifications was not literally attached to plaintiff’s copy of the contract; he had seen them and knew of them. There is also no doubt that the surety is entitled to raise all those defenses which the principal would have, such as nonperformance, but\^ that it is limited to such defenses. J. R. Watkins Co. v. Lankford, 363 Mo. 1046, 256 S.W.2d 788; Union State Bank v. American Surety Co., 324 Mo. 438, 23 S.W.2d 1038, 1044; State ex rel. and to Use of Gieringer v. Kilgore, Mo.App., 238 S.W.2d 874; Modern Brokerage Corp. v. Massachusetts Bonding & Ins. Co. (DC NY), 54 F.Supp. 939. And, of course, we recognize the rule, subject to its many extensions and exceptions, that parol evidence may not be used to alter the terms of a written agreement. Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820.

The real issues here are: (1) Was the contract entirely clear or was it ambiguous ? (2) If the contract was ambiguous, does y'the evidence show that the plaintiff’s performance was complete and sufficient? (3) Did Tetyak accept plaintiff’s acts as a full performance of the contract on his part and, if so, is such acceptance binding on United Pacific?

The contract was not expertly prepared. Encompassed in the issues just stated is the question, — was it the duty of plaintiff or of Tetyak to produce the final mixture or blend which would meet the engineers’ specifications? The contract recited that Tetyak had contracted to lay the rock according to “the plans and specifications,” but the specific agreement of plaintiff was to crush all rock supplied to him “in such quantities and sizes as is necessary to meet the specifications * * * hereto attached”; following that was the provision that plaintiff “shall reject all rock which cannot be processed by the contractor (plaintiff) to satisfactorily meet the specification requirements.” As we construe the instrument, the agreement to crush the rock “in such quantities and sizes” as necessary to meet the specifications was not an agreement that the product as it came from the crusher would then and there meet all such requirements; that wording definitely suggests the interpretation that plaintiff would crush the various sizes as directed by Tetyak who, by taking the rock immediately from the crusher, assumed the duty of properly mixing it, using additives if necessary, and getting the final approval. The next sentence, .expressed by indirection, requires plaintiff to reject “any rock” (and it was all of the same type) which could not be processed by him to meet the specifications. If that sentence, so worded, was an actual requirement applicable to the crushing itself and the end product (quaere) it certainly imposes, or seeks to impose, a stricter obligation than does the preceding sentence; in other words, it would thereby infer an obligation on plaintiff that he process the rock to specifications. These two requirements are inconsistent and they render plaintiff’s obligations under the contract, and the contract itself, ambiguous; another way of expressing this is that the contract is reasonably susceptible of different constructions. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262. We so hold. That being true, certain rules become applicable as ancillary rules of construction. The interpretation which the parties themselves have placed upon the contract by their conduct will be given great weight.' Landau v. Laughren, Mo., 357 S.W.2d 74. When other means of construction fail, a written contract is generally construed more strictly against the party who drew it. Engel v. Cord Moving & Storage Co., Mo. App., 313 S.W.2d 173. When a contract is ambiguous, parol evidence is admissible (Friedman Textile Co. v. Northland Shopping Center, Inc., Mo.App., 321 S.W.2d 9, 14-15, and cases next cited) to show the surrounding circumstances and the relationship of the parties as indicating their real intent and the meaning of the contract, and also to show the practical construction placed upon the contract by the parties. Paisley v. Lucas, supra, and cases there cited; Veatch v. Black, 363 Mo. 190, 250 S.W.2d 501, 507, and numerous cases cited; P R T Inv. Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315, 318; Hart v. T. L. Wright Lumber Co., 355 Mo. 397, 196 S.W.2d 272, 277. Such a contract will then be given a construction which will make it fair and reasonable between the parties. Paisley, Veatch. The real intention of the parties is the universal rule of construction. Cook v. Tide Water Associated Oil Co., Mo.App., 281 S.W.2d 415.

We hold that the oral testimony as to the actual operations was admissible and that it was properly considered by the trial court. We must, of course, make our own findings and conclusions, giving deference to the trial court, primarily on matters of credibility. On the latter phase it is obvious that he believed the testimony of Mr. Peterson and we see no reason why we should not do so. Considering the testimony as a whole, it appears that both of the parties to the contract intended that plaintiff should simply bring in his crusher 'J(with no blending or mixing machinery), set it up, and receive and crush the rock on the settings and to the sizes directed by Tetyak; that the latter would take the crushed rock direct from the crusher and attempt by his own operations to meet the gradation (and other) requirements of the f specifications. In fact it clearly appears that plaintiff’s crusher, without a “Pug Mill” or some similar device, was simply not equipped to produce the completed ^ product and that Tetyak, from his early investigations, knew that fact. He had a “mixer” on the job before piaintiff was ever consulted or employed. Plaintiff merely had and operated an ordinary rock crusher, as Tetyak and Peterson knew, which would not do the complete job on this difficult type of rock. Any other construction would simply mean that plaintiff had been led into a trap, from which he had no means of escape. We find and conclude that, on the evidence as a whole and according to tñe real intent of the parties, plaintiff performed his part of the contract.

Moreover, the conclusions just stated are substantially compelled by the actual construction placed upon the contract by the parties themselves, both prior to and during the entire period of operations. Some question has been raised as to Peterson’s authority to “change” the contract. It is true that he was not an officer of Tetyak and he was never designated as one to make any changes, but in our view he was not changing the contract, as we have construed it. He was merely carrying out a course of conduct instituted by Tetyak himself in the first instance, and continued with the full acquiescence of Tetyak on his various trips to the project; we may certainly infer that Tetyak knew of everything that was being done. Peterson specifically tried over a period of time to get Tetyak to buy and bring in dolomite rock dust to meet the difficulties. Also, except for the occasions of Tetyak’s visits, Peterson was the one person in sole charge. He directed the crushing of the sizes and he (and Tetyak) accepted the crushed gravel as a performance of the contract according to the original intent of the parties. He was certainly authorized to do that, since he and Tetyak and plaintiff had frequently consulted on that matter. It was not necessary that there should be a new consideration for a new contract, for there was no new contract. We hold that plaintiff was entitled to recover on the written contract as pleaded and as we have interpreted it. The fact that the price of 41 cents per ton for crushing was continued is, to some extent, corroboratory of the fact that the parties were not attempting to change the original contract, but merely to perform it as agreed, and to make and accept the performance.

There is a recognized rule to the effect that, where the parties to a contract have agreed upon the acts which will be accepted as full performance of a contract, the courts will generally follow that agreement. The rule is applicable here, whether as an independent rule of construction, or as corroboratory of the construction which we have heretofore placed upon the contract. See: Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511, 514—515; Newport v. Hedges, Mo.App., 358 S.W.2d 441; In re Wolozin’s Est. (Surr.Ct.N.Y.), 194 Misc. 212, 86 N.Y.S.2d 73, aff. Sup.Ct., 276 App.Div., 825, 93 N.Y.S.2d 717; Aaron v. Aaron (Tex.Civ.App.), 173 S.W.2d 310. In Woolfolk, supra, the court said, 296 S.W.2d loc. cit. 514—515: “There is good reason and authority for holding that whatever the parties see fit to accept as performance of the contractual obligations will be so regarded by the courts. 17 C.J.S. Contracts § 494, pp. 999, 1000; 13 C.J., Contracts, § 767, pp. 673, 674; 12 Am.Jur., Contracts, § 355 Note 13, p. 921; Murray v. Farthing, 6 Mo. 251; Wells v. Hocking Valley Coal Co., 137 Iowa 526, 114 N.W. 1076; Aaron v. Aaron, Tex.Civ.App., 173 S.W.2d 310. It is true that there was not an acceptance by plaintiff in express terms, but the facts and circumstances point inevitably to an acceptance, which by sound authority may be implied from conduct. 12 Am.Jur., Contracts, § 356, p. 922.” Plaintiff here pleaded the contract and its performance on his part; defendant-surety denied that there was performance. Thus, the question of performance or no performance was in issue under the pleadings, and the principle just stated is applicable, particularly in construing an ambiguous contract. The application of this principle is not inconsistent with, nor is it an abandonment of, the original theory of an action on the contract. Tetyak would certainly not have any defense of nonperformance under these circumstances and, since the surety merely “stands in the shoes of the principal contractor,” Modern Brokerage Co. v. Massachusetts Bonding & Ins. Co., (DC NY), 54 F.Supp. 939, it follows that United Pacific likewise has no such defense.

One final point remains, which may be covered briefly. Defendant asserts that, since such a bond on a government project stands in lieu of lien rights for labor and material, there can be no recovery unless the material actually went into the construction. Certainly, we shall accept no such proposition unless the bond or the federal law so provides, and specifically. This bond for payment, with Tetyak as subcontractor and principal and United Pacific as surety, ran to Bateson, the general contractor. Among its provisions was the following: “ * * * if the Subcontractor shall pay all persons who have contracts directly with the Subcontractor for labor or materials, failing which such persons shall have a direct right of action against the Subcontractor and Surety under this obligation, subject to General Contractor’s priority, then this obligation shall be null and void; otherwise, it shall remain in full force and effect; * * No one contends that this bond is not available by its terms to plaintiff who had a contract with Tetyak. The bond contains no provision whatever requiring that any such unpaid labor or materials shall have actually entered into the construction as finally completed and accepted. Indeed, it only required that the claimant have a contract “directly with the Subcontractor for labor or materials * which plaintiff most assuredly did. Defendant’s theory seems to be that since there can be no mechanic’s lien on a government job, the requirements of a mechanic’s lien claim are somehow automatically affixed to this bond. We have considered the cases cited by it, namely, Chouteau Trust Co. v. Massachusetts Bonding & Ins. Co. (CA 8), 1 F.2d 136, and Wiss v. Royal Indemnity Co., 219 Mo.App. 568, 282 S.W. 164, and also those cited by plaintiff, Glassell-Taylor Co. v. Magnolia Petroleum Co., 5 Cir., 153 F.2d 527, Autrey et al. v. Williams & Dunlap, D.C., 185 F.Supp. 802, National State Bank v. Terminal Construction Co., D.C., 217 F.Supp 341. While some statements are made indicating that at least one purpose in requiring bonds on public works is to protect those who would have no lien rights against a governmental unit, we find nothing to indicate that a laborer, materialman or contracting party suing on such a bond must perforce prove that his labor or materials actually entered into the construction unless the statute under which the bond is given or the bond itself fairly so provides. In other words, the labor or material need not, of necessity, be such as would be lienable, unless the statute or the bond fairly so requires. Hilton v. Universal Construction Co., 202 Mo.App. 672, 216 S.W. 1034, 1036-1037.

The present bond was furnished under the so-called Capehart Act, Title 42 U.S. C.A. § 1594, governing contracts for military housing. That Act does not provide the form of bond, but merely that it be “satisfactory to the Secretary of Defense * * Forms have apparently been adopted. If-the Miller Act provisions dealing with bonds on contracts for public buildings or public works, generally, are deemed to be incorporated into the Cape-hart Act, the two statutes are harmonious, and the requirement there merely is that the bond shall protect all persons who supply “labor and material in the prosecution of the work * * Title 40, U.S.C.A., § 270a et seq. Autrey et al. v. Williams & Dunlap, supra; National State Bank of Newark v. Terminal Construction Co. et al., supra. And, in the last case cited the court said, at 217 F.Supp. loc. cit. 360-361: “The liberal construction given to the Heard Act is also to be given in cases arising under .the Miller Act. * * * ‘The courts have refrained from attempting an all-inclusive definition of [labor and] material furnished in the prosecution of the work/ United States for Use and Benefit of J. P. Byrne & Co., v. Fire Association of Philadelphia, 260 F.2d 541, 543-544 (2d Cir., 1958). The test developed by the courts is. that the labor and materials must be furnished in the prosecution of the work. The Miller Act ‘does not require that the labor or material furnished be actually used or incorpoi ated into the contract work.’ Fourt v. United States for Use and Benefit of Westinghouse Electric Supply Co., 235 F.2d 433, 435 (10th Cir., 1956).” That case is. also authority to the effect that a suit such as this may be filed by the claimant in his own name, and that the state courts and the federal district courts have concurrent jurisdiction. See also Autrey, supra. And see, generally, D & L Construction Co. v. Triangle Elec. Supply Co. (CA 8), 332 F.2d 1009; Fourt et al. v. United Ctates (CA 10), 235 F.2d 433. In Fourt it was alsoi expressly held that, under the Miller Act, the labor or material furnished need not be shown to have been actually used or incorporated into the construction. We conclude that neither the applicable statutes nor the bond itself makes any such requirement and the point is denied.

The judgment as entered runs in favor of the assignee Bank and against United Pacific Insurance Company in the amount of $15,754.23. It is hereby affirmed.

All of the Judges concur.