author: J. MORGAN DONELSON, Special Judge.

text:
    Frank Arthur JAROS, Plaintiff-Respondent, v. Rita Margaret JAROS, Defendant-Appellant.
    No. 32014.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Sherwood R. Volkman, St. Louis, for defendant-appellant.
    Vernon Riehl, St. Louis, for plaintiff-respondent.
   J. MORGAN DONELSON, Special Judge.

Frank Arthur Jaros filed his petition for divorce, and in response to plaintiff's petition defendant countered with a crossbill for divorce. Upon trial the court rendered a decree which granted a divorce to the plaintiff husband and dismissed the crossbill for divorce of defendant wife. The custody of the minor children was awarded to the plaintiff, with the right to visit said children at all reasonable times awarded to defendant. Defendant thereafter perfected this appeal.

Defendant complains that the decree of divorce was for the wrong party and that the custody of the minor children should have been granted to her. We shall review the evidence, reach our own conclusion, with due deference accorded to the findings of the trial judge. Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379; Fields v. Fields, Mo.App., 343 S.W.2d 168.

The parties were married March 29, 1958, in Hernando, Mississippi, and they separated on October 22, 1963. They became the parents of three children; Frank Arthur Jaros, Jr., now aged seven years; Roy Edward Jaros, aged four years; and Tam-kera Sue Jaros, aged twenty-one months.

Plaintiff testified that he treated defendant and the children with love and kindness; that he provided defendant and the children with a home, clothing, food, and treated them the best he could. He is gainfully employed, and earned about $5,000 in 1963. Plaintiff complains that defendant left him and the children over her relationship with one Walter Wurtz, an ex-convict; that they quarreled over this other man; that they also quarreled when defendant stayed away from the home until midnight to 2:00 a. m., over the care given the children, and when defendant received unexplained telephone calls; and that defendant would refuse to fix his breakfast. He further says he had to fix his own clothing and help maintain the children and himself.

When plaintiff learned of Wurtz, he told defendant he wanted to see Wurtz. Defendant telephoned Wurtz and a meeting was arranged on October 18, 1963, in the home of plaintiff and defendant. Wurtz and defendant sat together, and defendant would have nothing to do with plaintiff. Defendant and Wurtz were hostile to plaintiff. According to plaintiff nothing was accomplished, and there was no way of reasoning with defendant and Wurtz, because they had their minds set on what they wanted and that was that. Defendant told plaintiff that the love she had for him was long gone. Plaintiff then arranged a conference with Father Kopp and defendant in their home to try to effect a reconciliation, but defendant later left the home and her family while plaintiff was at work.

After the separation, plaintiff learned that defendant was at the home of Mrs. Merle Brown, a sister of Walter Wurtz. When plaintiff went to the Brown home to see defendant, and the door was opened by Mrs. Brown, he saw defendant inside the house. Defendant stepped back from the door, and plaintiff was not admitted to the house.

During the marriage plaintiff claimed that defendant did not take very good care of the children and they lacked supervision from the defendant; that plaintiff would return home from work and defendant would not know where one of the children was. On quite a few occasions the defendant would leave the children with a neighbor or her mother for two or three hours at a time; that on said occasions and return defendant would indicate she had been shopping, but she never brought home anything to show this was true. He also said she visited a tavern and drive-in theatre without plaintiff.

After the separation, plaintiff took the children to a mutual friend at Elsimore, Missouri, who cared for the children until about December 22, 1963. The children were then returned by plaintiff to the six-room home of plaintiff’s forty-eight year old mother. Plaintiff and children live on the third floor of said home. Two other adults and three children live in this home, which has heat and one bathroom. Two witnesses testified for plaintiff that his reputation for truth, honesty, and morality was very good. In fact, one said he had worked for her, and that he was one of the finest young men she had known; that he was honest, he was trustworthy, and she would trust him with every dime she owned.

Defendant testified as to the marriage and separation. She stated she separated from plaintiff because he beat her and had blackened both eyes. She further complained that plaintiff had on many occasions struck, beat, and choked her during their marriage, beginning as early as two weeks after their marriage. She claimed' plaintiff on these occasions falsely accused her of running around with other men, and that he did not trust her. Defendant stated she did not get plaintiff’s breakfast for him because plaintiff said he couldn’t eat breakfast. She denied any wrongful relationship with Walter Wurtz, but admitted she had known- him for a long time. She also knew he was an ex-convict, and that he was twenty-eight years old. Defendant was twenty-two years old. She further admitted that she telephoned Wurtz for the conference above referred to, and that Wurtz came to the home in response to her call; that she knew Wurtz’s sister, Mrs. Brown; that she had been at the Brown home at the time referred to by plaintiff and had stayed overnight at the home. Defendant denied being in a tavern with Wurtz, but defendant’s witness later testified that she and defendant had been in a tavern when Wurtz was also there.

Defendant stated that she had given the children good care; that she had laundered for them, and kept house for plaintiff and the children (but admitted she was not the best housekeeper); that they had three meals a day, but not always on time. At the time the decree was rendered, defendant ■was living with her mother, and if she obtained custody of the children she indicated she would live elsewhere. She was not employed and had no property. After the separation, defendant agreed that the children could be cared for in Elsimore, Missouri. Plaintiff drove defendant to see the children while in Elsimore, Missouri. Defendant admitted that plaintiff during this period did his best to get her to come back and live with him. She refused.

One witness, Mrs. Margaret Reed, testified for defendant. She testified that defendant had a very fine reputation for morality and chastity, and that when she saw the children they were always nice, clean, and well-behaved. She knew Walter Wurtz since school days. Mrs. Reed admitted Wurtz had been in a tavern when defendant and she were there together. She knew defendant’s mother and her home, and she described it as a nice house, but crowded. The house is occupied by defendant, her mother, father, grandmother, brother, sister-in-law, and their four children. The witness said the house was not large enough to hold that many people.

The evidence received by the court and above outlined is within the pleadings of both parties on their respective charges of general indignities, or was received without objection and issues joined. O’Leary v. O’Leary, Mo.App., 385 S.W.2d 346.

It has been held many times that each case in which a divorce is sought on the ground of general indignities must necessarily rest upon its own factual situation. Richardson v. Richardson, Mo.App., 270 S.W.2d 68. The trial court saw the witnesses, heard the testimony, and can best judge the credibility of the witnesses and the weight to be afforded to the evidence. The evidence is conflicting. The trial court resolved the conflict by finding that defendant’s conduct was subversive to the family relationship and thus rendered plaintiff’s condition intolerable. It further found plaintiff was the innocent and injured party. The decree for divorce was rendered for the right party.

The problem of custody of the children is never easy, and it is especially so in this case when many facts which should be before the court are absent. It is no longer an unusual circumstance when grandparents assist in the care of children when the family relationship is disturbed or broken. Sartin v. Sartin, Mo.App., 349 S.W.2d 705. Plaintiff will also have the assistance of the children’s forty-eight year old grandmother. He has initiated care for his children during the separation, with the approval of defendant. Evidence supports the conclusion that plaintiff loves, cares for, and will support the children. His character and reputation is of the highest quality.

We are aware of the oft-quoted principle that the custody of children of tender years, especially girls, should ordinarily be awarded to their mother. Thomas v. Thomas, Mo.App., 288 S.W.2d 689. If, however, the welfare and best interests of the children can best be served by awarding custody to the father, the trial court should do so, even though the mother is a fit and proper person. C- v. B-, Mo.App., 358 S.W.2d 454; Tootle v. Tootle, Mo.App., 329 S.W.2d 218; Ballew v. Ballew, Mo.App., 288 S.W.2d 24.

Defendant’s past acts of leaving the children with others for extended periods and with plaintiff on their separation; her questionable association with a known ex-convict; and her crowded home situation for the care of the children, no doubt were among the deciding factors in the placing of the custody of the children with the plaintiff rather than defendant, even though the children are of tender years. The evidence is ample to support the findings of the trial court that the welfare and best interests of the children are with their father. We will not lightly regard nor easily disturb the findings of the trial court on this issue. Shields v. Shields, Mo.App., 387 S.W.2d 242.

The decree is affirmed.

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


source: Caselaw Access Project

author: ROY W. McGHEE, Special Judge.

license: Public Domain

text:
    Lilly M. MOLUMBY, May Belle Boyne, Lorenz S. Sartori, Individually and as Members of a Class, Plaintiffs-Appellants, v. SHAPLEIGH HARDWARE COMPANY, a Corporation, and Mercantile Trust Company, a Corporation, Defendants-Respondents.
    No. 31765.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Rehearing Denied Oct. 20, 1965.

      William O. Cramer, Walter H. Poll-mann, St. Louis, for plaintiffs-appellants.
    Shepley, Kroeger, Fisse & Shepley, George S. Hecker, Thompson, Mitchell, Douglas & Neill, William G. Guerri, St. Louis, for defendants-respondents.
   ROY W. McGHEE, Special Judge.

This is a class action, brought by three named plaintiffs on behalf of themselves and as representatives of a class comprising all former regular, full time, salaried employees of Shapleigh Hardware Company, against Shapleigh Hardware Company, a corporation and Mercantile Trust Company, a corporation, defendants, asking the Court to construe a pension plan and trust instrument, define and adjust the rights and status of plaintiffs and for a money judgment.

The trial court sustained defendant Shapleigh’s motion to dismiss plaintiffs’ first amended petition for failure to state facts upon which relief could be granted, as to both defendants, and with prejudice, and plaintiffs have appealed to this court. We shall refer to the parties as plaintiffs and defendants.

Plaintiffs allege that on or about December 1, 1955, the defendant Shapleigh duly adopted a pension plan known as Shapleigh Hardware Company Salaried Pension Plan and at about the same time, to implement the plan, entered into a trust agreement with Boatmen’s National Bank of St. Louis and that thereafter the trustee was changed to defendant herein, Mercantile Trust Company. That Shapleigh made contributions to the trust fund for several years after its adoption but that it has failed for a period of three years and more to contribute the full current cost of the plan and that by reason thereof the plan and trust entered into inactive terms. Further, the Plan as amended, in addition to providing for normal and postponed retirement, made provisions for early retirement of a member without the consent of the company. That the defendant Shapleigh was under a duty to advise plaintiffs of the existence and identity of the Pension Committee and the terms and conditions of the Plan and Trust Agreement, which it did not do and that such information was willfully and fraudulently concealed from plaintiffs and the class they represent by the defendant Shap-leigh and its agents with an intent to deny to plaintiffs and the class they represent the rights of retirement provided by the Plan and Trust; that by reason of the fact plaintiffs and the class they represent did not know of the plan they could not request early retirement, and by inference that they would have done so had they known of the conditions of the Plan with reference to early retirement.

Plaintiffs further plead that their rights to benefits were vested rights after plaintiffs had met the age and service requirements as provided by the Plan; that these rights may be exercised at any time by an employee after he qualifies; that the Plan does not require notice to the defendant Shapleigh or to the Pension Committee by an otherwise qualified employee of his intent to retire; that after plaintiffs had met the requirements of the Plan for any retirement benefits described in the plan, they cannot be deprived thereof by after-wards being discharged; that after plaintiffs were discharged demand for benefits was made and refused by defendants.

In the alternative, plaintiffs pleaded defendant Shapleigh Hardware Company, a corporation, had dismissed all its employees once members of the Plan, sold its inventory and was no longer engaged in the same type of business as formerly; that it has no Pension Committee; that no persons other than plaintiffs and the class they represent will be entitled to benefits under the Plan and Trust; that the management of the corporation has changed since the adoption of the Plan and Trust and that the Plan and Trust are terminated under the terms of the Plan and generally therefore, plaintiffs are entitled to benefits to be derived by liquidation of the trust fund.

Plaintiffs’ petition also sets forth that no money or benefits of any kind have ever been paid to any person or persons under the terms of the Plan and Trust; that on information and belief no pension committee was ever appointed. Both the Plan and Trust Agreement were by reference made a part of plaintiffs’ first amended petition. Plaintiffs prayed the Court to enter its declaratory judgment, defining and adjusting the rights of the parties under the two instruments and for judgment against defendant, Mercantile Trust Co., Trustee for any amounts found to be due plaintiffs and for general relief.

Section 19 of the Plan provided: “Neither the establishment of the Plan or Trust, nor any modification thereof, nor the payment of any benefits, shall be construed as giving any member or other person, any legal or equitable rights against the Company, the Trust, or the Committee, except as herein expressly granted to him.”

Section 32 of the Plan provided: “A summary of this Plan shall be delivered. forthwith upon Treasury Department approval of this Plan to each present salaried employee of the Company who is not precluded by age from being or becoming a member in the Plan, * * *. A copy of the Trust Agreement and of the Plan shall be kept available by the Company for inspection at reasonable times by any salaried employee of the Company.”

Section 26 of the Plan, among other things, provided: “ * * * Within thirty (30) days after the permanent discontinuance of contributions to the Plan, the Committee shall give notice thereof to the Trustee and to all Members in the Plan.”

Section 20 of the Plan provided: “Neither the establishment of the Plan or the Trust, nor any modification thereof, shall be construed as conferring any rights upon any member to be retained in the service of the Company, but, on the contrary, all members shall remain subject to suspension or dismissal, or discharge to the same extent as heretofore.”

Section 12 of the Plan, in effect provided that vested rights upon termination of membership in the plan were to accrue only to those who had served under the Plan for 10 years or more and for 20 years or more. It is conceded that none of plaintiffs can qualify under this section.

We note that the Plan was to be handled in all of its many details by a Pension Committee to be appointed and to serve at the pleasure of the Board of Directors of defendant Shapleigh and that plaintiffs allege upon their information and belief that the Pension Committee was not duly appointed. The failure of defendant Shapleigh to appoint this committee; the fact that no notice whatsoever of the Plan and Trust Agreement were ever given to plaintiffs and that there is no allegation by plaintiffs that the Plan was ever approved by the Treasury Department; that the funding of the Plan was discontinued by defendant Shapleigh and that no payments of any sort were ever made to anyone under the plan is a strong indication that the defendant Shapleigh, for some reason known only to the company, decided to abandon the Plan prior to making it operative and available to its salaried employees.

We here set forth paragraph 4 of the Plan for the purpose of showing that without the services of the committee it would have been next to impossible for the Plan to be operative: “Pension Committee The Board of Directors of the Company shall appoint, to serve at its pleasure a pension committee (hereinafter called the 'Committee’) to consist of four individuals, who shall administer the Plan consistently with the provisions hereof and uniformly with respect to persons similarly situated. Such Committee shall have power and authority to construe the Plan and, without amending the Plan or Trust, to establish rules and regulations which shall be binding on all persons. Among other things, the Committee shall determine under the provisions hereof, all facts relative to the eligibility, membership, or benefits of any employee or member, the time and method of distributing such benefits and the names of the persons to receive them; provided, however, that no member of the Committee shall act as such on any matter concerning his own eligibility, membership, or benefits. In the course of the administration of the Plan and Trust, the Committee may rely upon any information furnished by the Company as being accurate and based on uniform practices, and may rely upon any information furnished by an employee, member, or beneficiary, or upon any information otherwise acquired by the Committee which at the time it believes to be authoritative. The acts of the Committee shall be expressed * * *. No committeeman shall be liable, in the absence of fraud on his part, for any act or omission in the performance of his duties hereunder, and neither the Company nor the Trustee shall be liable for any act or omission in pursuance of the directions of the Committee.”

By Section 22 of the Plan it was provided that “ * * * the Company shall be under no obligation to continue such deposits or to maintain the Plan or Trust for any length of time.” Section 23 provided: “Any person having any claim under the Plan will look solely to the Trust Fund for the satisfaction thereof. Neither the Company nor any of its officers, employees, or any member of its Board of Directors guarantees in any manner the payment of the benefits under the Plan.” Further, the right was reserved to amend -the plan, to suspend, or permanently discontinue the Plan at the pleasure of the defendant Shap-leigh Hardware Co.

The provisions as to early retirement as amended in 1957 were that an employee who is a member of the Plan may retire, or may be retired by the Company at the end of any calendar month subsequent to the attainment by such member of the age of fifty-five years and prior to his normal retirement date, the date of such retirement being referred to as the “early retirement date.”

Plaintiffs named were discharged as follows: Lilly M. Molumby on Feb. 12, 1960; Mary Belle Boyne on Jan. 9, 1959, and Lorenz S. Sartori on May 13, 1962. It stands admitted by the pleadings that plaintiffs did not receive any notice of the Plan and Trust Agreement nor of the names and identity of the members of the Pension Committee. At no point does plaintiffs’ petition even by way of inference allege that Treasury Department approval of the Plan was ever given.

Plaintiffs’ first contention is that even though the Plan and Trust are noncontributory and no consideration flowed to defendant Shapleigh from plaintiffs it was nevertheless the duty of defendant Shap-leigh to inform plaintiffs of the rights of retirement given them by the Plan because the Plan and Trust together constituted an executed trust and such a trust needs no consideration to be valid, and further, the fact that plaintiffs did not know of the Plan and Trust did not affect its validity; that plaintiffs qualified for early retirement under the Plan and when defendant company deliberately and willfully concealed information of the Plan and Trust from plaintiffs and discharged them, plaintiffs were thereby defrauded.

By way of an alternate theory, plaintiffs contend because of defendant Shapleigh having sold its assets and discontinued its business that defendant company is in fact defunct and that the Plan is therefore “de facto” terminated and plaintiffs have an enforceable interest in the pension funds.

Defendant Shapleigh contends that the Plan was but a proposed voluntary, noncontributory Plan and Trust and that in the absence of any communication of its benefits to and consideration from plaintiffs, plaintiffs had no enforceable rights thereunder.

The motion to dismiss admits, for the purposes of the motion, all facts well pleaded and such inferences as are fairly deducible therefrom. 71 C.J.S. Pleading § 451, p. 906. Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572; Hall v. Smith, Mo., 355 S.W.2d 52. Conclusions of law and the construction and interpretation placed on documents pleaded in the petition are not admitted by the motion to dismiss. Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708. Goodrich v. Rhodes, Mo.App., 261 S.W.2d 391.

Was there a duty on the part of defendant Shapleigh to notify plaintiffs of the existence of the Plan prior to their discharge? In 42 A.L.R.2d p. 471, it was said: “It has sometimes been contended, with little success, that acts of the employer in implementing its voluntary pension plan amounted to the establishment of a trust for the payment of pensions, so that eligible employees became trust beneficiaries entitled to equitable enforcement of the trust even in the absence of any contract obligation.” And at page 464: “Under various noncontributory private pension plans by the terms of which employers have announced their intentions to pay benefits to employees under certain conditions, but have attempted, by various forms of expression, to provide that the employees should acquire no enforceable rights under the plan, it has been held that such limitations were successful and that the pension provided for was a mere gratuity withdrawable at the employers’ will.”

The courts have held in reviewing voluntary private pension plans which are noncontributory that they are not enforceable contracts, but mere gratuities in which the employee does not have vested rights until he begins to receive benefits thereunder. In re Missouri Pac. R. Co., D.C., 49 F.Supp. 405; Dolan v. Heller Bros. Co., 30 N.J. Super. 440, 104 A.2d 860; Menke v. Thompson, 8 Cir., 140 F.2d 786.

For such plans to become enforceable contracts the courts have required notification to and knowledge of the benefits on the part of the employee and consideration or continuance of employment in reliance upon the plan. This appears to be the view in Missouri. Wellington v. Con P. Curran Printing Co., 216 Mo.App. 358, 268 S.W. 396; Feinberg v. Pfeiffer Co., Mo.App., 322 S.W.2d 163. Since it stands admitted that plaintiffs did not know of the plan, they could not have relied thereon.

The rights of the parties should be determined from the Plan and Trust. Magee v. San Francisco Bar Pilots Benev. & Protection Ass’n., 88 Cal.App.2d 278, 198 P.2d 933. Plaintiffs concede in their brief that they have no rights under the Plan except according to its terms. Turning to the Plan and Trust and after a full and careful consideration of both instruments we are unable to agree with plaintiffs that defendant Shapleigh owed any duty to plaintiffs to give them notice of the Plan and Trust. It is quite true that the Plan was adopted by Shapleigh and for a time, payments were made to the trustee; that an effective date for commencement of benefits to be earned was named in the Plan. But it is also true that payments by the company to the trustee were discontinued; that no notice was ever given to the employees of Shapleigh that the Plan was in effect; no summaries were prepared and made available to salaried employees of Shapleigh and no approval was ever shown to have been given by the Treasury Department of the Plan and, most important, no pension committee was ever appointed. How can it be said in the light of these facts that the Plan and Trust Agreement constituted an executed trust? It would perhaps be more accurate to say that defendant Shapleigh doubtless intended to create a pension fund; advise all its salaried employees of their rights therein; appoint a pension committee to administer the Plan and put the Plan into operation upon Treasury Department approval. For reasons unknown all things necessary to be done to put the plan into operation were not done by defendant Shapleigh, particularly the appointment of the pension committee to operate the Plan, and therefore the Plan was never put into effect as was intended back in 1955. We do not know what factors caused the defendant Shap-leigh to change its intentions about the proposed Plan. We do know that the Plan reserved the right in defendant Shapleigh to amend, suspend or terminate the Plan for any reason or no reason at all, and at any time.

The provisions as to notice to plaintiffs contained in Sec. 32 of the Plan do not aid plaintiffs for the notice was to be delivered to plaintiffs “forthwith upon Treasury Department approval of this Plan * * * ” and plaintiffs do not plead such approval was ever given. Section 26, providing “that within 30 days after permanent discontinuance of contributions to the Plan, the committee shall give notice thereof to the trustee and to all members of the plan,” is of no help to plaintiffs as no committee had ever been set up to administer the Plan. We do not re-write the Plan for the parties. We merely construe it as it is written. This notice was required under certain conditions to be given by the pension committee, not by the defendant Shapleigh. Monterosso et al. v. St. Louis Globe-Democrat Publishing Co., Mo., 368 S.W.2d 481. Further, even if it could be assumed that defendant Shapleigh should have given notices to plaintiffs under this section, plaintiffs still have difficulty for they do not allege in their petition just when the period of “permanent discontinuance of contributions” arose, nor can we determine the date from the pleadings or any reasonable inference therefrom. It may well have been that all three named plaintiffs were discharged prior to the running of the 30-day period following the “permanent discontinuance of contributions.”

We have no quarrel with the theory that “once an employee who has accepted employment under such plan, has complied with all the conditions entitling him to participate in such plan, his rights become vested and the employer cannot divest the employee of his rights thereunder.” However, in the instant case, plaintiffs ignore the fact that they have not complied with all conditions entitling them to participate in the Plan. We point out that they did not accept employment under the Plan for they admit they never knew of it. They did not retire early. They did not serve 10 or more years under the plan. They did not plead that the pension committee determined plaintiffs to be eligible to benefits, or that the committee acted arbitrarily or fraudulently in disallowing benefits to plaintiffs.

Let us now examine plaintiffs’ alternate theory to the effect that the Plan and Trust are “de facto” terminated and plaintiffs therefore are entitled to share in the liquidation of the trust fund. Section 28, Termination of Trust, provided: “In the event that the Company shall, either before the commencement of the inactive term or during its continuance, give written notice of termination of the Trust and Plan to the Trustee and the Committee, or in the event that Shapleigh Hardware Company shall lose its legal identity by reason of dissolution, merger, consolidation or otherwise and no successor to Shapleigh Hardware Company shall assume its liabilities hereunder, the Trust and Plan shall be deemed to be terminated. In the event of such termination, the Trust Fund shall be liquidated * * *.”

Plaintiffs do not plead that Shapleigh ever gave such a written notice of the termination of the Plan nor is there an allegation in the petition to the effect that defendant Shapleigh has lost its legal identity by reason of dissolution, merger, consolidation or otherwise. To the contrary plaintiffs plead that defendant Shap-leigh Hardware Company is a corporation organized and existing by virtue of the laws of the State of Missouri. Plaintiffs’ contention to the effect that defendant Shapleigh has discharged all its employees, sold its inventory and is not now engaged in the same type of business as formerly, that the management has changed, is of interest, but does not show that the corporation has lost its legal identity. This same argument was advanced in Ackerman v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 469, without success. Plaintiffs simply have not pleaded facts which bring them within the provisions of Section 28 of the Plan.

We hold that the Plan and Trust Agreement as between named plaintiffs and defendant Shapleigh was an uncommunicated executory proposal; that named plaintiffs had no knowledge thereof whatsoever prior to their discharge; that the Plan was noncontributory as far as the employees were concerned, terminable at the will of defendant Shapleigh for any reason or no reason at all; that named plaintiffs have no vested rights in the Plan and Trust Agreement since they admittedly were under the Plan less than 10 years; that named plaintiffs did not continue in the employment of defendant Shapleigh relying upon the Plan and Trust agreement; that no consideration moved from named plaintiffs to defendant Shapleigh; that defendant Shap-leigh was under no duty to advise named plaintiffs of the Plan until such time as the Plan was fully implemented and ready to be put into effect by the defendant company, including the appointment of a Pension Committee as provided for in the Plan.

As to defendants’ contention named plaintiffs have failed to state a claim as representatives of a class, we note that the petition stated that named plaintiffs sought to represent a class of persons who were very numerous; that it was impracticable to bring them all before the court; that the relief sought is common to all parties plaintiff; that named plaintiffs fairly and adequately represent the whole class, as each was a salaried employee; each had membership in the Plan and each was discharged by defendant Shapleigh. Since we are here testing only the sufficiency of the petition we are not concerned with proof of these allegations as was the court in Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596. The allegation that named plaintiffs fairly represent the whole class, etc., is but a conclusion of the pleader. In view of Supreme Court Rule 52.09(a), V.A.M.R., it would possibly have been better to set forth the method and manner of how named plaintiffs were chosen. However, assuming, without deciding, that named plaintiffs have pleaded sufficient facts authorizing them to bring this as a class action, still the petition must be dismissed, since we hold that the named plaintiffs themselves have failed to state a claim upon which relief can be granted them. If they have no rights to be litigated themselves then they may not bring the action as representatives of a class. Supreme Court Rules 52.08 and 52.09. Hribernik v. Reorganized School District R-3, supra.

The judgment of the trial court insofar as it purports to dismiss with prejudice named plaintiffs’ petition for failure to state a claim upon which relief could be granted is affirmed.

However, since named plaintiffs’ petition recites that plaintiffs “bring this action on their own behalf and as representatives of a class who may wish to join with them * * * ” and there is no allegation as required by Supreme Court Rule 52.09(a) showing that plaintiffs have been fairly chosen, it may be inferred that there are perhaps plaintiffs of the class who do not even know of the pendency of this action. It is our duty to protect absent parties in actions of this sort. For these reasons the judgment of the trial court insofar as it purports to dismiss with prejudice the petition of plaintiffs other than named plaintiffs is reversed with directions to dismiss the same without prejudice as to all plaintiffs other than named plaintiffs.

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


text:
    John E. MILLS, Plaintiff-Appellant, v. F. E. BERRY, Merritt Nichols and George Lane, Judges of County Court of Ralls County, Missouri, Defendants-Respondents.
    No. 31967.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      John E. Mills, New London, for plaintiff-appellant.
    Ely & Hibbard, Hannibal, for defendants-respondents.
   ROY W. McGHEE, Special Judge.

For the purposes of this opinion we treat this action as one brought by plaintiff-appellant as the duly elected and acting prosecuting attorney of Ralls County, Missouri against defendant-respondent, Ralls County, Missouri, for re-imbursement for certain expenses of the office of prosecuting attorney which plaintiff claimed to have paid for out of his own funds. The suit resulted when the County Court of Ralls County refused to re-imburse plaintiff.

We shall refer to the parties as plaintiff and defendant.

Plaintiff claims in his petition that he expended for telephone, telegraph, mileage, secretarial hire and F.I.C.A. taxes for the years 1960 through 1963, a total of $2,244.41 which amounts were properly chargeable against Ralls County and demanded payment from the County for re-imbursement in the amount budgeted for the period in question, amounting to $1,980.41, which defendant county refused to pay.

Defendant’s first amended answer admitted that there was due and owing to plaintiff by way of re-imbursement for expenses incurred by plaintiff in his official capacity as prosecuting attorney, a total of $1,307.28, which amount, together with $10.-00 court cost deposit made by plaintiff, was tendered into court.

Plaintiff thereafter notified the circuit judge and the circuit clerk, in writing, that a jury would not be required in the trial of the case. The circuit judge disqualified himself and subsequently, Hon. James D. Clemens, Special Judge, assumed jurisdiction of the case. On the day the case was set for trial, plaintiff appeared in person and as counsel for himself. Defendant appeared by counsel. After considerable discussion, the Court pointed out to plaintiff that no jury had been called in response to the written statement of plaintiff that he did not desire to submit the matter to a jury and further, “ * * * the purpose of the trial today is to give you an opportunity to prosecute your action if you care to do so.” To which plaintiff replied: “So far as I am concerned, I will dismiss the action.” The Court answered: “All right.”

After still more discussion between the Court and plaintiff in which plaintiff seemed to want to discuss generally his difficulties with the County Court of Ralls County, the trial judge stated to plaintiff: “Well, as I understand it, Mr. Mills, so far as the present cause No. 235 is concerned, you do not at this time desire to present evidence in support of your petition. Am I correct in that?” The plaintiff replied: “Yes, sir.” After still further discussion, the Court stated: “Of course, if the action is dismissed there would be no judgment against the County, and upon dismissal of the action, I think it would be appropriate for this Court to order the tendered funds returned to the defendant. Mr. Mills, do you have any objection to that, or any further suggestions as to how these funds should be handled that have been tendered?” Plaintiff replied: “I have no suggestion whatsoever, your Honor. I am going to leave the matter up to the Court to determine, and the Court may do whatever he sees fit to do.”

Plaintiff had not been sworn as a witness and no other witnesses were ever sworn and no evidence of any kind was offered by plaintiff. The trial judge stated: “Well, it is the decision of the Court that inasmuch as the plaintiff has no evidence to present in support of his petition, and has stated that he desires to dismiss the action, it will be the Court’s order that the petition be dismissed for want of prosecution, and that the funds heretofore tendered by the defendants be, by the Clerk, returned to the defendants in the case.” Judgment was entered on April 29, 1964, dismissing plaintiff’s cause of action for want of prosecution and taxing the costs against the plaintiff.

On May 7, 1964, plaintiff filed a motion entitled “Motion for New Trial,” as follows^ Plaintiff, John E. Mills, moves this court make and enter its order setting aside the judgment heretofore entered in this cause upon the 29th day of April, 1964, and granting to Plaintiff a new trial upon the grounds that: (1) the trial judge entered no findings of facts in said matter upon which he based his judgment. (2) Defendant, in his pleadings, admitted liability for accounts claimed to be due by plaintiff but the trial judge ruled these accounts should not be paid even though admitted to be due by the defendants. (3) The trial judge erred in refusing to permit public funds budgeted and allotted for said purposes to be used in the necessary operation of the office of Prosecuting Attorney.

Defendant filed its motion to strike plaintiff’s motion for a new trial, stating that there had been no trial and that plaintiff’s cause had been dismissed for failure to prosecute. Subsequently, the trial court overruled the motion to strike plaintiff’s motion for a new trial, and overruled the motion for a new trial and amended its judgment entry of dismissal of April 29, 1964, by adding thereto the words, “without prejudice.” Plaintiff timely filed his notice of appeal to this court.

Plaintiff’s brief is not particularly helpful, but apparently he contends here that the trial court erred in entering its judgment dismissing plaintiff’s cause of action without prejudice for failure to prosecute and in overruling plaintiff’s motion for a new trial.

Plaintiff had the right to have his cause of action tried to a jury, but he waived this right when he filed his written statement with the clerk of the court recommending that “no jury be called on the date this matter is set.” Sup.Ct. Rule 69.01(b), V.A.M.R. Upon the jury being waived the case was triable before the court and when the parties plaintiff and defendant appeared pursuant to a setting of the cause and the Court indicated that he was ready to hear the case, it became the duty of plaintiff either to ask for a continuance or to present his evidence, but instead plaintiff stated: “So far as I am concerned, I will dismiss the action.” This plaintiff had the right to do. Section 510.130 RSMo 1959, V.A.M.S.; Sup.Ct. Rule 67.01.

Courts have power in the exercise of sound judicial discretion to dismiss a case for failure to prosecute with diligence. Section 510.140 RSMo 1959, V.A. M.S. Arky v. St. Louis County Producers’ Market Co., Mo.App., 312 S.W.2d 156. Euge v. Lemay Bank & Trust Co., Mo., 386 S.W.2d 398 and cases there cited. The Court said:

“The general rule is that courts have inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused.”

Therefore, in the instant case when the trial court inquired in effect, is it your intention not to present any evidence at this time, and the plaintiff stated, “Yes sir,” the Court quite properly indicated that it was his intention to dismiss plaintiff’s cause of action for failure to prosecute. There was no abuse of discretion on the part of the trial court.

Plaintiff’s second point that the Court erred in not setting aside the judgment of dismissal and granting a new trial is wholly without merit. First there had been no trial or submission of any issue to the Court because plaintiff had refused to go forward with any evidence, though urged and given every opportunity to do so. Second, no proper or sufficient reason was offered in the so-called motion for new trial to warrant the Court in setting aside its order of dismissal. An order overruling a motion for a new trial is not an appealable order. State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740. City of Joplin v. Joplin Waterworks Co., Mo., 386 S.W.2d 369.

We are not unmindful of the fact that defendant admitted certain sums were due and owing to plaintiff and since plaintiff’s cause of action was dismissed without prejudice he may still prosecute his cause of action if he cares to do so.

We hold that plaintiff may not complain if he offers to dismiss his cause of action; refuses to go forward with evidence and is advised by the trial court unless he does offer evidence his cause will be dismissed and then upon his refusal to offer evidence, or ask for a continuance, the trial court dismisses his cause of action without prejudice.

For the reasons given the judgment of the circuit court dismissing plaintiff’s cause of action for failure to prosecute, and without prejudice, should he affirmed.

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


author: R. KENNETH ELLIOTT, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Appellant, v. G. A. BROCKFELD et al., Exceptions of Harold S. Stinson, Sr., Dorothy Bopp Stinson, David W. Stinson, Trustee, and Harold S. Stinson, Jr., (Defendants) Respondents.
    No. 31638.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied Oct. 13, 1965.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for (plaintiff) appellant.
    Wehrle & Wehrle, Walter Wehrle, Clayton, A. H. Juergensmeyer, Warrenton, for (defendants) respondents.
   R. KENNETH ELLIOTT, Special Judge.

In this condemnation action defendants recovered a verdict and judgment in the sum of $13,750 for the taking of a part of defendants’ tract of land located on the south side of Route 40 in Warren County, having a frontage of approximately 640 feet in two segments, a parcel fronting in the approximate middle having been previously sold, and consisting of approximately 12.3 acres, on the western portion of which was located a motel. In the proceeding the plaintiff Highway Commission acquired a triangular tract of land in the northeast portion of the property and a long strip along the county road at the east side of defendants’ property. No additional right-of-way was taken from the portion of defendants’ property in front of the motel building. Plaintiff appealed, and the only point on appeal is the claimed error in giving Instruction No. 3 at the request of the defendants and in refusing plaintiff’s requested Instruction No. 6.

Instruction No. 3, offered by defendants and given by the Court, is as follows:

“The Court instructs the jury that in determining just compensation to be paid to the defendants for the appropriation of their property by the plaintiff, as described in the evidence you may take into consideration the damages, if any, resulting to the remainder of defendants’ whole tract of land by reason of the taking of defendants’ right of access to U. S. Highway 40, existing on June 21, 1962 and by the construction of the limited access highway as described in the evidence.”

Instruction No. 6, offered by plaintiffs and refused by the Court, is as follows:

“The Court iftstructs the jury that in determining the amount of damages to which the Defendants are entitled for the taking of a part of their property by this proceeding, you may take into consideration the fact that Defendants will have no right of access between their property and the highway or its right-of-way along a portion of the front of their remaining property as described in evidence and the affect (sic) that has upon the value of Defendants* remaining property; however, you are instructed that you shall not award to Defendants, any damages nor allow to them any sum of money because of the fact that Defendants will not have access between their property and the thruways of said highway, if you find that there is a right of access between Defendants’ property and an outer roadway of the highway after the construction of the highway.”

These two instructions in effect took opposite positions as to whether or not the jury would consider damages to defendants’ property occasioned by defendants’ claim that plaintiff was taking defendants’ right of access to U. S. Highway 40, which existed on June 21, 1962, by the construction of an outer roadway which would be interposed between the eastbound lane and the motel, but on the present right-of-way, thereby requiring traffic to and from the motel to travel some three miles in either direction in order to enter on the east or west lanes of the new interstate highway, 1-70, proposed to be built on the present U. S. 40 after improvement of its dual lanes.

This is a companion case to State ex rel. State Highway Commission of Missouri v. Brockfeld et al. (Exceptions to the Award to George F. Mohr, Genevieve B. Mohr, John G. Speed, Trustee, Alberta A. Denny, Sinclair Refining Company, a corporation, Noah C. Hase, Irene Hase, People’s Bank of Hawk Point, a corporation, William Sands and Fern Sands), which was decided first in an opinion of this court at 378 S.W.2d 254, and later transferred to the Supreme Court. The Supreme Court, en banc, in case No. 50883, 388 S.W.2d 862, reversed this court’s decision. The motel in the instant case was located adjacent to the gasoline service station in the Mohr case, supra.

Since the case of State ex rel. State Highway Commission of Missouri v. Brockfeld et al. (Exceptions to the Award of George F. Mohr et al.), supra, is determinative of this case, it will not be necessary to further lengthen this opinion. See also State ex rel. State Highway Commission of Missouri v. Meier et al. (Exceptions of Annie Pitti), Supreme Court, en banc, No. 50290, 388 S.W.2d 855.

Attention is directed to the references in both of the cited cases to 30.02 Missouri Approved Jury Instructions.

The judgment is reversed and the cause remanded.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: DOERNER, Commissioner.

text:
    Buford LONG, Plaintiff-Respondent, v. Ernest WEILER and Patricia Weiler, Defendants-Appellants.
    No. 31899.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    Rehearing Denied Oct. 20, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendants-appellants.
    Francis Toohey, Jr., Perryville, for plaintiff-respondent.
   DOERNER, Commissioner.

This suit on a note, recently reassigned to the writer, originated in the Magistrate Court of St. Genevieve County, where plaintiff prevailed. Defendants appealed, plaintiff was granted a change of venue to the Circuit Court of St. Francois County, and the cause was tried by that court without a jury. Judgment was entered for plaintiff in the sum of $1325.66, which included principal, interest, and an attorney’s fee, and defendants brought this appeal.

The note was for the face amount of $1,000, and was executed on May 16, 1959 by the defendants as makers, to the plaintiff as payee. It bore interest at the rate of six per cent per annum, and as no time for payment was expressed therein, it was in effect a demand note. Section 401.007, RSMo 1959, V.A.M.S. Notations of credit on the back indicated that payments of $8.75 for interest and $41.25 on the principal were made on September 25, 1959, and interest of $22 on August 12, 1960. From the stipulations of the parties and the evidence adduced it is undisputed that the note came into existence and was given in this manner: Southern Missouri Dari-Castle, Inc., a corporation, (of what state does not appear) was the owner of certain real estate in the City of St. Genevieve on which was located a building for the operation of what was termed a “Dari-Castle business.” By a written lease dated May 16, 1959, Southern Missouri leased the premises to defendants. The only part of the lease pertinent to this litigation was a clause which provided that the “ * * * Lessee shall at the time of the signing of this lease pay the sum of One Thousand dollars ($1000.00) DOLLARS in advance against rental to be due for the tenth year of the term of this lease,” the tenth being the final year of the term. According to plaintiff, who was president of Southern Missouri, the defendants paid the company $7500 for certain equipment at the time the lease was entered into, but they did not have the $1,000 to pay the advance against the rental for the tenth year. Plaintiff in his individual capacity thereupon loaned defendants the money to make the payment and took their note now in suit.

Plaintiffs petition was in conventional form. By their answer defendants admitted their execution of the note but as an affirmative defense pleaded accord and satisfaction, in that defendants sold the restaurant to one Marvin Otte, that plaintiff was aware of and participated in the consummation of the sale, and that “in connection with said sale it was agreeed by and between plaintiff and defendants that plaintiff would look to the said Marvin Otte for the collection of said Note. * * * ” In this appeal defendants continue to assert their plea of accord and satisfaction, and, for good measure, have raised the non-pleaded affirmative defense of failure of consideration.

We find from the evidence that some time shortly before August 12, 1960, defendants, who desired to sell their business, found buyers therefor in the persons of Mr. and Mrs. Marvin Otte. The price agreed upon was $9069 for the “equipment, lease and supplies,” according to the bill of sale, which sum the Ottes paid the defendants on August 10, 1960. Defendant Weiler showed the Ottes the franchise he held from Dari-Castles, Inc., of Joliet, Illinois, the parent company, but he did not show the Ottes the lease from the Southern Missouri company, nor did he inform them of the advance rental clause or the note to plaintiff. Since the defendants’ lease contained a prohibition against any subleasing, assigning or other disposition without the written consent of Southern Missouri it was necessary for the defendants, in order to complete the transaction, to obtain the cooperation and approval of Southern Missouri. Weiler communicated with plaintiff Jones, and arrangements were made for a conference.

The conference was held on August 12, 1960, in St. Genevieve. Present were Weiler, Mr. and Mrs. Otte, plaintiff, and Francis Toohey, Jr., of Perryville, Missouri, whom plaintiff testified was “ * * * my attorney.” Aware of the purpose of the conference plaintiff had brought with him a new lease from Southern Missouri to the Ottes, which except for the names and the term (for the balance of defendants’ term) was in all respects the same as the defendants’ lease from Southern Missouri. During the course of the conference the Ottes learned for the first time of the existence of defendants’ note and of the clause regarding the advance of $1,000 for rental for the final year. There are three versions of what was ultimately agreed upon. Weiler’s version was that the Ottes agreed “ * * * to pay the 10th year lease, * * ” by which we presume he meant the advance of $1,000 towards the rent for the final year; that Toohey did not have a note form with him but said he would send one up the next day; and that plaintiff agreed that if he paid the interest due to date of $22 and Toohey’s travel expenses of $50, plaintiff would cancel defendants’ note and lease. Plaintiff, after stating that there was quite a bit of conversation about the termination o.' defendants’ note and lease, that Otte was so upset at learning of the advance in rental that the situation became confusing, and that he couldn’t recall too much of what was said about defendants’ note, testified on direct examination that, “If a new note was drawn I agreed to accept it from the new people if they agreed to go ahead and sign it.” On cross-examination he stated;

“Q You don’t recall telling Mr. Wiler (sic) that if paid the interest up to date he was released on the note ?
“A Only if we received payment on the note.
“Q If he’d pay the interest up to date then he was to be released on the note, do you recall that being—
“A If we received the full amount of the face of the note.
“Q Not just the interest?
“A No. In other words, before I would release the note I’d have to have full payment on it in some way or another.”

Otte, called as a witness by plaintiff, testified that Weiler had never told him about the $1,000 note before the conference, that he was surprised to learn of it because Weiler had previously assured him that all bills were paid, and agreed with plaintiff that when he learned of the note “ * * * there was quite a mix up * * * ” for a while. Otte’s version of the result reached was that he said, “ * * * I’d have to look into it further or think about it before I’d ever sign a note, take over somebody else’s note further or think about it.” Asked whether he had tentatively agreed to give plaintiff a note, he answered, “I don’t think I gave a definite answer on it.” He recalled that Weiler paid the interest up to date of $22 on defendants’ note.

Defendants introduced in evidence their check to Toohey for $72, as well as his receipt for $50 for “Closing transfer,” both dated August 12, 1960. The note, as stated, bears on the back the notation that interest of $22 was paid on August 12, 1960. They also introduced a copy of a letter Toohey wrote Mr. and Mrs. Otte on August 13, the day after the conference, the material part of which reads:

“Relative to the note I have contracted (sic) the people in the Ozark Business Management Company and find that they are willing to except (sic) the $50.00 per month providing a payment of $50.00 be forthcoming shortly and that you pay promptly with your rent each month the $50.00 as heretofore agreed. We would appreciate it very much if within the next three or four months if at all possible that you could pay a little extra from time to time on this to reduce the balance. Therefore, I am enclosing a new note for $1,000.00 which you should execute and return to me. * * ”

Otte admitted that he had received the original of the letter, and testified that he had never signed a note for plaintiff. Asked on cross-examination whether the letter reflected his recollection of the agreements at that time, he answered, “To my knowledge,” except that, “I don’t recall agreeing to pay $50.00 a month.”

Defendants have termed their first defense that of accord and satisfaction. As the phrase suggests, an accord and satisfaction consists of two elements: that of the “accord,” or agreement, whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, something other than or different from that which the second party is, or considers himself to be, entitled to; and the second element is the “satisfaction,” that is, the execution or performance of the accord or agreement. Bohle v. Sternfels, Mo., 261 S.W.2d 936; Crouch v. Quigley, 258 Mo. 651, 167 S.W. 978; Western Military Academy v. Viviano, 235 Mo.App. 301, 133 S.W.2d 1098; 1 C.J.S. Accord and Satisfaction § 1, pp. 462, 463. In order to establish a valid defense of accord and satisfaction it is necessary that the evidence meet both requirements. For the general rule is that an accord without the satisfaction is not binding or enforceable, does not operate as a discharge of the original obligation, and is revocable by either party. Bohle v. Sternfels, supra; Crouch v. Quigley, supra; Western Military Academy v. Viviano, supra; 1 C.J.S. Accord and Satisfaction § 38, p. 543. However, where the new agreement or promise, rather than its performance, is accepted in satisfaction of the original obligations, such acceptance results in a novation, by which the original obligation is discharged. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783; 1 C.J.S. Accord and Satisfaction § 1 b(5), p. 465. In Missouri the term “novation” has been frequently applied to such a tri-party agreement as defendants claim was made here, that is, a contract whereby a creditor consents to release his debtor in consideration of the assumption of the debt by a third party. Di Franco v. Steinbaum, Mo.App., 177 S.W.2d 697; Morriss v. Finkelstein, Mo.App., 145 S.W.2d 439.

There appears to have been some uncertainty on the part of defendants regarding their claim as to the accord entered into with plaintiff at the conference on August 12. In their answer they alleged that the agreement was that “ * * * plaintiff would look to the said Marvin Otte for the collection (payment?) of said Note, * * * ” which implies that defendants’ note was not to be cancelled and returned to them but to remain in plaintiff’s hands on the understanding that plaintiff was to release them from liability thereon and to look only to Otte for payment. In their brief, however, defendants do not refer to that theory and instead contend that the accord was that, “ * * * it was agreed that Otte should sign a new note and that Defendants were to be released upon their note upon payment by them of the interest due to date in the sum of $22.00 * * * ” It is undisputed that the Ottes never executed and delivered a note to plaintiff. For that reason defendants are in no position to claim that there was a satisfaction by performance. What they now contend, in effect, was that plaintiff unconditionally accepted the Otte’s promise to make a note, as distinguished from their actual execution of one, as the satisfaction of the accord, and in consideration thereof contemporaneously agreed to release defendants from liability on their note to him.

The burden of proving their affirmative defense, whether called an accord and satisfaction or a novation, was on the defendants. Zacher v. Peters, Mo.App., 179 S.W.2d 908; Hutcheson & Co. v. Providence-Washington Ins. Co. of Providence, R. I., Mo.App., 341 S.W.2d 142. Whether Otte unequivocally promised to execute a new note to plaintiff, and whether plaintiff unconditionally accepted the promise in satisfaction of defendants’ obligation were questions of fact for the determination of the trial court. Bohle v. Sternfels, supra; Manufacturers Bank & Trust Co. v. Buder, Mo.App., 191 S.W.2d 290. As to these issues there was a direct conflict in the evidence. Defendant Weiler’s version of the agreement made supported the contention now advanced. Plaintiffs version, in effect, was that he agreed to release defendants only if he received payment in full on their note “ * * * in some way or another,” including the actual execution and delivery of a note to him by the Ottes. Otte’s testimony was that he said he would have to think about the matter and that he never definitely promised to do so. The determination of the issues depended solely upon the credibility of the witnesses. It is apparent from the judgment that the trial court resolved the issues in favor of the plaintiff. It had the opportunity of observing the witnesses and of judging their credibility, and absent any compelling reason to the contrary, the rule of deference should apply. Section 510.310, RSMo 1959, V.A.M.S.; Houghton v. West, Mo., 305 S.W.2d 407; City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174. Defendants argue that Toohey’s letter of August 13 supports their contention that the Ottes agreed to execute a note to plaintiff. We agree, but it does not substantiate defendants’ claim that plaintiff agreed to accept their promise to do so, rather than their actual performance, in satisfaction of defendants’ obligation.

Defendants’ second point, that there was a failure cf consideration, is premised on the assumption that the note was given in payment of part of the rent for the tenth year of the lease from Southern Missouri Dari-Castles, Inc. And the argument advanced is that since the lease was cancelled the consideration for the note therefore failed. The fallacy in defendants’ contention is in the premise. The fact is that defendants’ note was not given to Southern Missouri in payment of part of the rent for the tenth year of the lease; rather, the note was made payable to plaintiff in his individual capacity and the consideration was the $1,000 which he personally loaned to defendants. While defendants may have used the funds they borrowed to pay the advance rental, the two transactions were separate and distinct, and the cancellation of the lease did not relieve defendants of their obligation to repay plaintiff.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

RUDDY-, P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: ANDERSON, Judge.

text:
    HAUGHTON ELEVATOR COMPANY, a Division of Toledo Scale Corp., a Corporation, Plaintiff-Respondent, v. C. RALLO CONTRACTING COMPANY, Inc., a Corporation, and Martin-Steven Realty Company, a Corporation, Defendants, and C. Rallo Contracting Company, Inc., a Corporation, Defendant-Appellant.
    No. 31923.
    St. Louis Court of Appeals Missouri.
    Sept. 21, 1965.

      Karol Korngold, St. Louis, for defendant Martin-Steven Realty Co.
    Guilfoil, Caruthers, Symington, Montrey & Daniel, H. Jackson Daniel, Bernard A. Ruthmeyer, St. Louis, for defendant-appellant.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, Donald U. Beimdiek, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an action by Haughton Elevator Company against C. Rallo Contracting Company, Inc., and Martin-Steven Realty Company. The claim against Rallo was for $4,019.00, the balance alleged to be due under a contract with Rallo for the installation of a hydraulic elevator in a building belonging to Martin-Steven Realty Company. As against Martin-Steven Realty Company, plaintiff sought to establish a mechanic’s lien on the real estate on which the building was being erected. Rallo filed a counterclaim to recover damages alleged to have been suffered by said defendant by reason of negligent delay in the performance by plaintiff of its work under said contract; said damages being penalties, provided for in the general contract, for delay by Rallo in completing the building, which penalties were paid by Rallo. The case was tried to the court, and resulted in a finding in favor of plaintiff against Rallo in the sum of $3,500; in favor of plaintiff on Rallo’s counterclaim and in favor of defendant Martin-Steven Realty on plaintiff’s action to establish a mechanic’s lien on its property. Defendant, C. Rallo Contracting Company has appealed.

The amount sought to be recovered was the cost above the contract price of the installation specified in the contract between plaintiff and Rallo, and claimed to be due under said contract for the reason that in drilling a hole under the building, which hole was necessary to the operation of the hydraulic elevator, rock was encountered which made the drilling more difficult and time consuming, causing plaintiff to expend additional sums for labor and material, and necessitated the employment by plaintiff of another firm to complete the operation. The hole in question was 19}4 inches-in diameter and approximately 44 feet in depth. It is referred to in the evidence as a “jack hole.” According to plaintiff’s evidence rock was encountered at the depth of 17 feet, and was present during the remainder of the operation. Plaintiff’s claim was for the entire cost of drilling from the depth of 17 feet to completion. The claim is based on a provision of the architect’s specifications for the building, considered a part of the contract between plaintiff and Rallo, which provides that as to said jack hole, the contract price is based on the encountering of soil free from certain conditions including rock, and that if such obstruction or unusual conditions be encountered the contract price would be increased by the amount of actual cost of labor and material, plus 10% and 10%.

Defendant Rallo Contracting Company entered into a contract with Sylmar Investment Company to construct an apartment building at 4530 West Pine Boulevard. In December, 1960, defendant Martin-Steven Realty Company became the owner of the aforesaid property.

Rallo took bids from other contractors for the installation of the elevator to be installed in said building. Haughton Elevator Company submitted a bid for this work in a letter dated September 24, 1959. This bid recited:

“We are pleased to quote the sum of SIXTEEN THOUSAND FOUR HUNDRED FORTY NINE DOLLARS ($16,449.00) to furnish and install one .(1) Haughton Oil Hydraulic Passenger Elevator at the above subject location. (4530 West Pine) We have included an allowance for drilling the well hole in ordinary soil.
“Our equipment is in strict accordance with the plans and specifications as prepared by Mr. Edward Gordon, Architect.
“This proposal is subject to the terms and conditions of our regular contract forms. A detailed proposal will be furnished upon request.”

On January 26, 1960, a contract was entered into between the parties, the material portions of which are as follows:

“For the consideration hereinafter named, the said Sub-contractor covenants and agrees with said Contractor, as follows:
“FIRST. The Sub-contractor agrees to furnish * * * and install elevator according to revised plans and specifications and Addenda 1 and 2, for:
4530 Apartment Building
4530- West Pine Boulevard
St. Louis, Missouri
* * * according to the plans and specifications * * * of Edward Francis Gordon, Architect, and to the full satisfaction of said Architect.
% % ífí í|í
“FIFTH. No extra work or changes under this contract will be recognized or paid for, unless agreed to in writing before the work is done or the changes made.
“IN CONSIDERATION WHEREOF, the said Contractor agrees that he will pay to the said Sub-contractor, in payments, the sum of SIXTEEN THOUSAND FOUR HUNDRED FORTY-NINE AND 00/100 ($16,449.-00) Dollars for said materials and work, said amount to be paid as follows: Eighty-five per cent (85%) of all labor and material which has been placed in position by said Sub-contractor, to be paid on or about the Fifteenth of the following month, except the final payment, which the said Contractor shall pay to the said Sub-contractor within Thirty days after the Sub-contractor shall have completed his work to the full satisfaction of the said Architect or Owner.”

The plans and specifications of the architect, referred to in the above mentioned contract contained the following:

“1. GENERAL REQUIREMENTS
(a) The provisions of the General Conditions apply to each Section of the specifications and the provisions of the General Conditions shall be fully complied with by all contractors and sub-contractors.
^ % ifc ‡
“3. DEFINITIONS
Whenever used in any of the Contract Documents, the following meaning shall he given the terms as herein defined:
(c) Contractor: Wherever, and whenever term ‘Contractor’ is used in these specifications, it shall be understood to designate party or parties who will be awarded a contract to furnish work under these specifications, and any subcontractor engaged by him to perform portions of work under contract.
ifc :{« >|< ‡ ifc
“9. EXTRAS
Any contractor contemplating any work which may involve an extra charge to the owner, shall first obtain permission in writing from the owner or his representative authorizing the extra and stating the amount of same before any work is started or material supplied.”

Under the heading “Elevator,” the specifications provide:

“1. GENERAL
This specification is intended to cover the complete installation of 1 Electric Oil-hydraulic (electrically operated hydraulic elevator, using oil as the fluid medium) passenger Elevator, as manufactured by Rotary Lift Company, Memphis Tennessee, Haughton Elevator Company, Toledo, Ohio, or equal as approved by the Architect and/or Owner. The general contractor is to list in his bid the make of elevator proposed and the allowance set up for same. All work including the accessory items listed herein shall be performed in a first-class and workmanlike manner, and is to include all materials and work as shown on the drawings or described hereinafter.
“18. IACKHOLE
The contract price is based on the Seller encountering soil free from rock, boulders, building construction members, sand, water, quicksand, underground caves or any other obstructions or unusual conditions when installing the jack. Should such obstructions or unusual conditions be encountered, the contract price shall be increased by the amount of actual cost of labor and material, plus 10% and 10%.”

Plaintiff’s agent, Marvin W. Selsor, testified that he looked at the specifications in the office of Mr. Gordon, the architect, and that plaintiff’s bid was based on the specifications. Mr. Ernest F. Stabler, district manager for plaintiff also read said specifications and the contract between plaintiff and Rallo, prior to starting the job.

According to plaintiff’s evidence the drilling equipment was moved onto the job on August 3, I960, and the actual drilling started on August 5th. A 19% inch auger drill was used at the beginning. This type of drill rotates and digs itself into the ground. The material that is dug out is withdrawn from the hole by pulling the drill from the hole and removing it from the spirals on the drill.

James T. Quinn, an employee of Haugh-ton was in charge of the work. His helper was Sam J. Castello. Quinn testified that when they first started drilling no unusual conditions were encountered but on August 10th and at 17 feet, they ran into gumbo with rock mixed in it. Prior thereto they ran into water difficulties.

After encountering rock, Quinn continued to drill with the 19j4 inch auger, but did not make much progress. He then changed to a 6 inch auger to drill a lead hole. The hole at the time was around 30 feet deep. After drilling with the 6 inch auger they ran into difficulties with it. The auger broke, and part of it was lost in the hole. This happened on August 26th. After this occurred they spent four or five days trying to retrieve the broken part but were unsuccessful. When the auger broke they were within four feet of completing the hole. Quinn further testified that at 30 feet they ran into something more solid than gravel and when the auger broke they were drilling in solid rock. The testimony of Quinn was corroborated by the helper, Mr. Castello.

Marvin W. Selsor, sales engineer for Haughton testified that Mr. Gordon, the architect, called him on the phone and asked him why there was a delay in the drilling; that he told Gordon that he did not know there was a delay, but would find out and advise him as to the cause; that he went to the job and found the drillers were having trouble because of rock conditions, and the breaking of a drill bit; that he observed rock at the job site, which looked like flint rock; that he also noticed a heavy sort of gumbo type mud.

Ernest F. Stabler, district manager for Haughton, testified that in drilling the jack hole they encountered boulders at about 17 feet, and he observed rock in the debris which was piled up around the hole.

On this appeal Rallo does not contend that plaintiff did not encounter rock in drilling the jack hole. At the trial, however, Charles Rallo testified he was never shown any rock, nor did he see any rock being brought up the hole. He also testified he was never told that the drilling had been delayed by reason of rock. He further testified that four test holes were dug before the construction was started, one at each corner of the proposed building. They were dug from ground level. The jack hole was started in a pit in the basement. The basement was 10 feet below ground level. One hole was dug to a depth of 45 feet. At 30 feet there was a light deposit of1 large gravel. Another of the holes was dug to a depth of 30 feet. No rock was encountered, but small gravel was encountered at 15 feet. The third hole was dug to a depth of 35 feet, and the fourth to a depth of 40 feet. No rock was encountered in digging either hole. Edward Gordon, the architect, testified that he saw a lot of mud and dirt at the jack hole and something that appeared to be gravel, but he never saw any rock there. He also stated that none of Haughton’s men ever told him they encountered rock in drilling the jack hole. In our judgment the weight of the evidence supports plaintiff’s position on the above mentioned issue.

After plaintiff abandoned the attempt to retrieve the bit from the hole plaintiff employed Haverstick Well & Equipment Company to complete the drilling of the jack hole. The method employed by the latter was percussion drilling which pounded down the lost bit and pulverized the rock in the jack hole. Haverstick came on the job around September 1 and completed the drilling. Thereafter plaintiff billed Rallo for the cost of drilling the hole from 17 feet to its completion. This amount included the cost of its own labor, the amount paid by it to Haverstick, the cost of gasoline for drilling through rock, plus 10 per cent and ten per cent as provided in Division 25, Section 18 of the contract specifications. This was the amount sued for. It was conceded by counsel for defendant Rallo in his opening statement that if plaintiff was entitled to additional compensation the amount alleged was correct. The judgment rendered was less than the amount sued for.

Appellant’s first point on this appeal is that plaintiff is not entitled to recover because it failed to give notice to appellant of its intention to drill through rock at “extra” charge before undertaking the work, or secure an agreement in writing from defendant before undertaking the work.

In support of the above mentioned contention defendant relies on the fifth paragraph of the subcontract which we have heretofore set out, which provides that no extra work or changes under the contract will be paid for unless agreed to in writing before the work is done or changes made.

Appellant contends that by plaintiff’s own admission, it never gave written notice to it, or obtained written permission for performing the extra work of drilling through rock. Further, it is argued that in a letter to C. Rallo Contracting Company dated October 5, 1960, plaintiff indicated it considered charges for drilling through rock as for extra work, thus placing a construction on the contract which is binding on plaintiff. This letter was addressed to the attention of Charles Rallo, and was as follows:

“Dear Sir:
“Under the terms of our contract with you and complying with the specifications on the above job we wish to advise the following:
“1. An extra charge based on the expense involved, etc. will be charged for drilling of the well-hole for the elevator in the above building, through other than normal soil.
“2. Abnormal soil conditions; namely blue, very gummy, wet, mud and hard flint rock were encountered at 17 feet on the 10th day of August.
“3. An extra charge will be submitted to cover the above.
“4. Invoice will be submitted from our Toledo office.
“5. Your Job Supt., Mr. Leo Toom-ey, was notified of the above conditions.
“If you have any questions concerning the above please contact us.”

The above letter was signed by M. W. Selsor, Sales Engineer. The reference to the specifications in said letter relate to Division 25, Section 18, which we have heretofore set out which provides for an increased charge over the contract price if rock or other unusual conditions are met in installing the jack.

A like argument is based on a letter dated December 2, 1960, sent by plaintiff to appellant. This letter reads as follows:

“Under the terms of our contract and in compliance with the specifications as prepared by Edward Gordon, Architect we here-by submit the amount extra for drilling well hole through rock, above project.
“This charge in the amount of $4,-313.94 will be added to the original contract price and submitted to you with out next request for payment.
“Specifications state any items extra for drilling through rock will be paid by the owner. We are therefore submitting a copy of this letter to the Sylmar Investment Company.”

It is further argued that the above theory is bolstered by the fact that plaintiff’s witnesses, who were employees of Haugh-ton, throughout their testimony, referred to “extra” charges as a result of encountering rock during the process of drilling, and that the color of the time tickets used after August 10 indicated the charges were “extra” over the contract price. Mr. Stabler, the district manager for Haughton, testified that pink time tickets which were used after August 10, are used when there is a development on the job that calls for payment above the contract price.

The foregoing arguments advanced by appellant are not convincing. The fact that plaintiff and its witnesses referred to the additional charge for drilling through rock as an extra charge does not make the work performed “extra” work. The contract does provide that extra work must be agreed to in writing before the work is done but we do not deem that the drilling through rock was extra work. Extra work, as used in connection with building contracts, means work of a nature not contemplated by the parties and not controlled by the contract. 17A C.J.S. Contracts, § 371(6), p. 411; Casgrain v. Milwaukee County, 81 Wis. 113, 51 N.W. 88. “Extra” work is work entirely independent of the contract, something not required in its performance. Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; Michaud v. McGregor, 61 Minn. 198, 63 N.W. 479; Ashley v. Henahan, 56 Ohio St. 559, 47 N.E. 573. Additional work is something necessarily required in the performance of the contract, and without it the work could not be carried out. By the contract Haughton had an obligation to complete the jack hole to the required depth to receive the jack unit. It was work required by the contract regardless of whether rock was or was not encountered. The work under the subcontract was by its terms to be completed according to the plans and specifications of the architect. Those plans and specifications contemplated the possibility that the jack hole might be drilled through rock, and by Division 25, Section 18, it is provided that if- rock is encountered the contract price would be increased by the actual cost of labor and material in doing said work plus 10% and 10%. While the application of this provision may appear harsh, such was the contract entered into by the parties and we see no valid reason why it should not be enforced. The subcontract provided that plaintiff agreed to install the elevator according to the plans and specifications. We cannot construe this to mean only those provisions of the plan and specifications favorable to defendant. All said provision must be deemed to have been incorporated into the subcontract by reference. According to its terms the cost for drilling through rock is an amount due in addition to the contract price for the installation of the elevator. The trial court did not err in holding that drilling through rock was covered by the contract, and required no agreement in writing under Section 5 of the sub-contract, or written permission from the owner for the extra charge before the work was started under Division 3, Section 9 of the plans and specifications. The extra charge was a matter of contract which specified the method for ascertaining same.

Defendant’s next point is that the trial court erred in rendering judgment in favor of plaintiff in the sum of $3500 because said judgment was against the weight of the evidence, which showed said charge to be unreasonable and excessive.

The amount billed by Haughton for the cost of completion of the hole below the depth of 17 feet totaled $3,725.00, which according to plaintiff’s evidence, was less than the sum due figured according to Section 18 of Division 5 of the specifications. This included the charge of $1,914.00 paid by plaintiff to Haverstick. The charge made by plaintiff for its work included sums actually expended by it for labor and material.

The complaint made is without merit. The contract provided that under the conditions encountered the contract price would be increased by the actual cost of labor and material, plus 10% and 10%. The law is well settled that where a contract contains an express stipulation as to the amount of compensation to be paid for its performance, such stipulation is conclusive on the parties and determines the amount of recovery. 17A C.J.S. Contracts § 362, p. 366; Isaac T. Cook Company v. Bank of St. Louis, Mo.App., 297 S.W.2d 607. And the fact that defendant produced evidence that the hole could have been drilled for less than the cost to plaintiff, should not be considered. It is the general rule that in an action in an express contract where the amount of compensation is fixed, evidence of the reasonable value of the services rendered under the contract is inadmissible. Garvin-Melton Co. v. E. W. Fowler Co. (Tex.Civ.App.) 292 S.W. 976; McManus v. Kucharo et al., 219 Iowa 865, 259 N.W. 926; Kentucky Virginia Stone Co. Inc. v. Casteel, 291 Ky. 645, 165 S.W.2d 348; Cross v. Ramdullah, (C.C.A.9th) 274 F. 762. The rule is stated in 17A C.J.S. Contracts § 601, p. 1174, as follows:

* * * Thus, where priee to be paid for work performed is ascertained by a method of measurement specified by the contract, it is not open to one party to the contract to introduce evidence as to another method of measurement for the purpose of showing that a different price should be paid.”

Defendant did not dispute the fact that plaintiffs cost for drilling through rock was the amount for which it sued. On the contrary defendant’s counsel in his opening statement conceded the amount to be correct. There was no plea of fraud or evidence thereof introduced by defendant. Therefore, in view of all the facts and circumstances appearing in the record and the law applicable, we are unable to say that the charge made by plaintiff was unreasonable and that the judgment was therefore against the weight of the evidence, as defendant contends.

Defendant contends that plaintiff is es-topped from making its claim against defendant for the reason that plaintiff’s failure to notify defendant of the contemplated work makes it impossible for defendant to secure reimbursement from the owner, the only person who benefitted by said work. This contention is based on the theory that drilling through rock was “extra work,” which we have heretofore held was not the case.

Civil Rule 55.10, V.A.M.R., provides that estoppel is an affirmative defense which must be-pleaded. An examination of defendant’s answer reveals no such defense pleaded. The case was not tried on the theory that plaintiff was estopped, and no facts were proved that would constitute an estoppel. The issue cannot now be considered, since not presented below.

The final assignment of error specified in the points relied on is that the trial court erred in ruling that time was not of the essence in the subcontract, for the reason that the completion date, for the construction of the building specified in the plans and specifications were incorporated into the subcontract by reference. This is tantamount to a charge that recovery could not be had on the contract because of noncompliance with a condition precedent namely completion of the work by October 1, 1960, the date specified in the plans and specifications for the erection of the building.

In its argument defendant has abandoned this point by stating that, “ * * * Defendant’s position was not, and is not, that time was of the essence of the contract and, therefore, the contract must fail because not performed on time, but rather that the time requirements constituted an independent agreement on account of which compensation and damages are recoverable * * From this premise it is argued that the court erred in not finding for defendant on its counterclaim for damages for unreasonable delay in the installation of the elevator and negligence in the performance of said work which caused delay in the completion of the building resulting in the infliction of penalties against defendant, for which judgment was prayed in the sum of $12,000. The foregoing contention is not based on any assignment of error contained in “Points Relied On.” We will, therefore, not consider said contention since assignments of error made for the first time in the “Argument” portion of the brief come too late.

Finding no error in the record the judgment is affirmed.

RUDDY, P. J., and FRANK D. CON-NETT, Jr., Special Judge, concur.