text:
    Harry R. EVANS, Donald T. Alcott, Thomas W. Bond, Marsh Mallette, Sidney G. Jones, Roger L. McClanahan, and Victor C. McKee, (Plaintiffs) Appellants, v. The INDUSTRIAL COMMISSION of Missouri: Division of Employment Security, a Public Quasi Corporation of the State of Missouri: and Pittsburgh Plate Glass Company, a Corporation of the State of Pennsylvania, (Defendants) Respondents.
    No. 31045.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 20, 1962.
    Leo J. Rozier, Perryville, for appellants.
    Harry L. C. Weier, Dearing, Richeson & Weier, Hillsboro, for Pittsburgh Plate Glass Co.
    Lloyd G. Poole, Jefferson City, for Industrial Commission of Missouri.
   WOLFE, Judge.

This action to review the findings of the Industrial Commission of Missouri was brought by Evans and six other employees of the Pittsburgh Plate Glass Company. Each had filed a claim for unemployment compensation, and all claims had been brought by appeal to the Industrial Commission. The Commission denied all of the claims, and this action was brought to review the Commission’s decision. The Circuit Court affirmed the Commission, and the claimants now appeal to this court.

The facts in these claims are closely related to the case of Huck v. Industrial Commission of Missouri, 361 S.W.2d 332, handed down concurrently with this opinion. Huck and all of the claimants here were striking employees of the Pittsburgh Plate Glass Company. All of the claimants were members of a union known as Local No. 63 of the Glass, Ceramic and Silica Sand Workers, AFI^CIO-CLC. The union was recognized by the employer as the bargaining representative for the production workers of the factory. The claimants were production workers. They all went on strike on October 6, 1958, and there was a complete stoppage of work.

Conceding that they are not entitled to unemployment compensation by reason of the work stoppage which' arose out of ,the labor dispute (Section 288.040, RSMo 1949, V.A.M.S.), they all claim that they come under the exception contained in that section which, after stating- that no employee shall be eligible for unemployment benefits because of a work stoppage, proceeds as follows:

“ * * * in the event he secures other employment from which he is separated during the existence of' the labor dispute, he must have obtained , bona fide employment as a .permanent,, employee for the major part of each of . two weeks in such subsequent employment to terminate his ineligibility.”

All of the claimants here did obtain work for the major part of two weeks while the strike was in progress, and all seven claim that this subsequent work was terminated due to layoffs or weather conditions. All assert that it was bona fide employment as -a permanent employee subsequent to the strike and during its continuance.

The Union and the Pittsburgh Plate Glass Company had agreed to carry on an insurance program for each of the union members desiring to do so. Half of the ^premium of the insurance was paid by the company.and half by the employee. Most of the claimants here signed a card requesting that their insurance bq continued and that their portion of the cost thereof be deducted from future wages. Those who did not sign such a card paid their portion of the cost of continuing the union and company insurance. None of them quit or gave up any' seniority rights with the Pittsburgh Plate Glass Company i

The .' Commission made the following finding:

“The commission finds that there was . a stoppage of work, as defined by law, at the employer’s plant; that such stoppage began on October 6, 1958 and con- . tinued thereafter and was still in existence at the time of the hearing on January 30, 1959; that such stoppage' of work was caused by a labor dispute between the employer and the union to which the claimants belonged; that the claimants belonged to a grade or class of workers of which, immediately preceding the commencement of the stoppage, there were members employed on the premises at which the stoppage occurred, some of whom were participating in the dispute; that the unemployment of each of the claimants which began on October 6, 1958 was due to a stoppage of work which existed because' of á labor dispute in the factory, establishment or other premises in which the claimants were last employed; and that, therefore, each of the claimants are ineligible for waiting week credit or benefits for weeks claimed beginning October 6, 1958. Under the law, the .claimants’ ineligibility may be terminated in the event other employment is secured from which a separation occurs during the existence of the labor dispute, if such other work is bona fide employment as a permanent employee for at least the major part of each of two weeks. Between October 6, 1958 and January 30, 1959 each of the claimants worked for other employers for varying periods of time.
“In a case of this sort for.a claimant to terminate his ineligibility for benefits, it is necessary that it be shown that the unemployment was ‘bona fide’ and. was ‘as a permanent employee’, along with a showing that the work covered at least the major part of each of two. weeks.
“The burden of establishing a'claimant’s right to benefits under the law, rests on the claimant and the burden never shifts. Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77. The evidence before the Commission shows that each of the claimants was a member of Local No. 63, the striking union;- that each of the claimants did not know if they would return to work for the employer if the strike was settled; and that each of the claimants had seniority with the employer of between ten and 29 years. Each of the claimants continued their participation in the insurance program maintained in their behalf by the employer and the union, and had signed check-off cards authorizing the employer to deduct from future wages premium payments made by it. There was no evidence that the claimants had discontinued their membership in Local No. 63 during the period of the strike nor was there any evidence that there had been a severance of the employee-employer relationship between the claimants and the struck employer at any time prior to the time of the hearing.
“The Commission believes that employment to be considered as ‘bona fide employment as a permanent employee’ would, among other factors, require that an individual accepting such employment have no reservations as to the length of time he would remain or continue in such employment. In the instant case the existence of such a reservation on the part of each of the claimants is shown by the fact that between October 6, 1958 and January 30, 1959, none of the claimants formally resigned from the employ of the employer; and none gave notice to the employer that they intended to surrender any rights of seniority or accumulated benefits, including their continued participation in the insurance program with the employer. All of the claimants were regular employees of the employer on strike. Each of the claimants continued to be an active participant in the strike as each maintained their membership in Local No. 63 between October 6, 1958 and January 30, 1959. Furthermore, the Commission believes that employment of a short duration admits of an inference that it was not entered into in good faith with the intent that it be as a permanent employee. The Commission finds that none of the claimants obtained bona fide employment as a permanent employee between October 6, 1958 and January 30, 1959. It is the opinion of the Commission that the work performed by the claimants for other employers between Oc- • tober 6, 1958 and January 30, 1959 was in the nature of interim, stop-gap, casual or temporary work. The Commission further finds that the claimants herein are ineligible for waiting week credit or benefits for weeks for which benefits were claimed between October 6, 1958 and January 30, 1959, because their total or partial unemployment was due to a stoppage of work which existed because of a labor dispute in the factory, establishment or other premises, in which they were last employed. Because of the foregoing finding it is unnecessary for the Commission to make a finding as to the claimants’ availability for work during the weeks for which claims were filed.
“DECISION:
“The decision of the Appeals Tribunal is reversed. Claimants are ineligible for waiting week credit or benefits for weeks claimed between October 6, 1958 and January 30, 1959.”

As we stated in the case of Huck v. Industrial Commission, supra, the law relating to unemployment subsequent to the strike and while the strike is in progress, in order to qualify a claimant for unemployment compensation when such subsequent work is terminated, must meet the requirements set down in 81 C.J.S. Social Security and Public Welfare § 196 page 290, which is as follows: “In order effectively to terminate his disqualification his subsequent employment must be bona fide, not a device to circumvent the statute, and must completely sever relations between him and his former employer.”

We fully discussed in the Huck case the limitations upon court review of administrative decisions; the burden of proof in unemployment compensation cases; and other related matters which need not be repeated here. It is sufficient to state that the court cannot substitute its judgment for that of the Commission. There was sufficient evidence to support the findings made and the decision reached.

The judgment of the Circuit Court affirming the award of the Commission is therefore affirmed.

ANDERSON, P. J., and GEORGE P. ADAMS, Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Conrad C. POOLE and Rose A. Poole, Plaintiffs-Appellants, v. Robert F. ROLOFF and Marion C. Roloff, Defendants-Respondents.
    No. 31036.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.

      Don L. Schlapprizzi, James W. Jeans, Gray & Jeans, St. Louis, for appellants.
    Hale W. Brown, Kirkwood, for respondents.
   BRADY, Commissioner.

The appellants, hereinafter referred to by their trial designation of plaintiffs, brought this action against the respondents, hereinafter referred to as defendants, for damages resulting from defendants’ cutting and removing timber from land in plaintiffs’ possession, but to which the title was in defendants. The jury returned a verdict for plaintiffs in the amount of $1,800.00 and final judgment was entered thereon. Defendants filed a motion for new trial, as did the plaintiffs, the latter limiting their motion to the issue of damages. Defendants also filed a motion “* * * To Have Verdict And Judgment Set Aside And For Entry of Judgment Notwithstanding the Verdict of the Jury.” See Civil Rule 81.01 V.A. M.R. The trial court overruled both motions for new trial and sustained the defendants’ motion to have the verdict and judgment set aside and for entry of judgment in defendants’ favor on certain specified grounds. However, the trial court did not enter judgment for defendants. Plaintiffs appeal, as stated in their brief, from the order sustaining this motion to set aside the verdict and judgment and for entry of judgment notwithstanding the verdict of the jury, and from the order “ * * * overruling their Motion for a New Trial on the issue of damages.”

While the issue is not raised by defendants, it is this court’s duty, sua spon-te, to determine its jurisdiction. Although there was no judgment entered for defendants, the record does show that defendants’ motion which included a prayer for entry of judgment was sustained. The failure to perform the ministerial duty of formally entering the judgment for defendants does not affect its validity, State v. Haney, Mo., 277 S.W.2d 632, 55 A.L.R.2d 717. Of course, there being no judgment entered, the plaintiffs were thereby led into filing their appeal as they did, and in these circumstances the plaintiffs have clearly made a good faith attempt to properly appeal.

Because of the somewhat unusual circumstances of this case arising after the trial, a proper delineation of the issues here presented requires a disposition of the plaintiffs’ first allegation of error prior to a consideration of the cause of its merits. This rather novel situation results from the fact that in sustaining the defendants’ motion to have the verdict and judgment for plaintiffs set aside and judgment entered in defendants’ favor, the trial court’s action was taken without any notice to plaintiffs and neither were plaintiffs given any opportunity to be heard upon the matter. Such action by the trial court is assigned as error by the plaintiffs.

It should be noted that the trial court’s action in this case goes far beyond that held erroneous in Albert J. Hoppe, Inc. v. St. Louis Public Service Company, Mo., 235 S.W.2d 347. In the Hoppe case, the trial court attempted to award a new trial without notice and hearing. In the instant case the trial court, without notice and hearing, actually took away, a judgment, entered upon a jury verdict, and denied a new trial. The injury to the plaintiffs was accordingly much more severe than that suffered in Hoppe, supra. In any event, the application of the rule of Hoppe, supra, to the instant case becomes even more apparent when it is. borne in mind that Civil Rule 81.01, V.A. M.R., abolishes the motion for judgment notwithstanding the verdict and provides for the incorporation of the grounds for such motion in the Motion for New Trial. Furthermore, in compliance with Civil Rule 55.42, V.A.M.R., the circuit court of St. Louis County had promulgated Rule 13(d) of that court which provided that unless otherwise designated by the judge of the division in which trial was held, motions and other proceedings incident to the trial thereof shall be heard in the trial division on Fridays, at 9:30 A.M. The defendants do not deny the application of the Hoppe case to this factual situation, but urge that since the trial court should have sustained defendants’ motion for a directed verdict the error is harmless. This court feels that contention to have merit, and we will first determine whether or not the trial court should have overruled defendants’ motion for a directed verdict.

The transcript discloses that the defendants filed such a motion at the conclusion of their evidence and at the close of all the evidence. While the defendants in their contention set out above do not state which motion they are referring to, the transcript discloses that they presented evidence after their motion for a directed verdict offered at the close of plaintiffs’ case was overruled. Accordingly, defendants are relegated to their motion for a directed verdict offered at the close of all the evidence, Woods v. Dalton, Mo.App., 331 S.W.2d 132. We will search the whole record to determine if the defendant was entitled to a directed verdict; that is, whether or not plaintiff made a submissible case. In determining whether a submissible case was made, and since the plaintiffs prevailed below, it requires no citation to establish ⅛⅛ duty to view the evidence in the light .most favorable to plaintiffs.

The plaintiffs entered into a contract with the defendants on December 12, 1955, for .the purchase of the farm referred to in the evidence. This contract made the following provisions as to payment of the purchase price of $21,500.00: down payment of $1-500.00, receipt of which was acknowledged in the contract; $100.00 per month beginning February 2, 1956 and ending with the payment of January 2, 1957; $200.00 per month beginning on February 2, 1957 and continuing through January 2, 1961; balance of purchase price and interest to be paid on January 2, 1961, at which time plaintiffs were to receive defendants’ warranty deed. The plaintiffs agreed to pay interest on the purchase price from January 1, 1956 at 6%, and the monthly payments were to be applied “* * * on taxes, interest, insurance and principal.” The other pertinent parts of this contract are as follows:

“It is understood between the parties hereto that if parties of the second part should default in any of said herein-above mentioned payments, then parties of the first part shall notify second parties of such default by registered mail, and if delinquent payments are not paid within thirty (30) days after such notice, then this agreement shall be void and parties of the first part may retain all payments theretofore made by second parties in full satisfaction for and in liquidation of all damages by them sustained, and parties of the first part shall have the right to reenter said premises and take full possession thereof.
“Parties of the first part agree to keep the buildings on said premises insured against loss by fire, lightning and tornado, and in case same are damaged by fire, lightning or tornado, parties of the second part shall have the option to use the amount received by insured for payment on sale price or toward the ’re-building of the damaged . property.
“Parties of the second part agree to cultivate the land in a husband-like manner, to prevent erosion thereon, and to take proper care of the buildings on said premises; and parties of the second part agree not to cut or remove any timber without the written permission of parties of the first part.”

The contract also provided that the plaintiffs were to have “ * * * possession of said premises when this agreement has been signed * * * ” and the defendants were to receive the net proceeds of all crops grown on said premises when sold and were to credit the cash value thereof to plaintiffs against the principal debt.

The decisive question in this case is determined by facts that occurred beginning in July, 1958, and therefore the evidence prior to that time will be referred to only briefly. The plaintiffs’ evidence was that they made all the payments called for by the contract for the year 1955; made eleven payments in 1956; , eleven in 1957, and had made six payments up to July, 1958. However, Mr. Poole admitted he was $1,900.00 behind in his payments on July 1, 1958. On that day he received a registered .letter from the defendants which read as follows:

“Dear Mr. and Mrs. Poole:
“Your monthly installment payments as provided in our purchase contract dated December 12, 1955, are delinquent in the amount of $1,900.00 as of July 1, 1958. I am notifying you hereby that unless all delinquent pay- . ments are brought up to date within the next thirty days from above date our agreement will be null and void.
“Yours very truly,”

Plaintiff further testified that after receiving that letter he went to see Mr. Roloff personally, and was told by Roloff that if he could make up the back payments within two years from the date of that conversation and would continue the $200.00 monthly payments “ * * * then we would go ahead as was * * * ”; that in reliance on that conversation plaintiffs purchased some cattle costing $1,200.00, and “ * * * attempted to purchase some equipment”; that he remained in possession of the farm and resumed payments; that he paid $1,-900.00 after July 1, 1958, identifying the cancelled checks therefor; and that he received from the defendants a statement, his Exhibit 15, dated December 31, 1958, showing credits for payments during 1958 after July 1st, and also showing credits to Poole of $5.43 and $151.40 from the wheat crop credited 7/10/58. On that same exhibit the plaintiffs were debited on 11/10/58 in the amount of $205.13 for taxes, and $1,154.29 for full twelve months interest. The insurance premium was also debited to him as of 4/6/58, although the exhibit does not show nor does the testimony reveal whether this was for the full year. Mr. Poole further testified that he sent the defendant another $200.00 check dated May 15, 1959, which defendant returned.

The checks previously referred to show that on April 13, 1959, defendants deposited plaintiff’s check for $200.00 dated April 3; and on May 8, 1959, deposited plaintiff’s check for $200.00 dated April 30. The plaintiffs’ evidence shows that they paid between $8,000.00 and $9,000.00 under the purchase agreement, and of this amount, plaintiff testified that $2,100.00 was paid after he received the notice of July 8, 1958. However, the checks show that $1,900.00 was accepted by defendants after that date, and the checks representing that amount were deposited by defendants. Presumably, the other $200.00 was represented by the check of May 15, 1959, which defendant returned. That check is not in evidence. It was not disputed that one Buxton and his employees, under contract with defendants, entered the land and began cutting and removing timber, with the trespass first occurring on April 8, 1959. Four hundred dollars was accepted by the defendants as payments by the plaintiffs after this date.

The defendants’ evidence which is of 'aid to plaintiffs was that two letters were sent to plaintiffs in July of 1958, notifying the latter that the contract was cancelled; that on July 29, 1958, defendant Roloff did have a conversation with Mr. Poole who was then $1,900.00 delinquent; in the course of which Roloff informed Poole that “* * * I told him I would give him six months in which he might have an opportunity to completely catch up with the payments ; that was only after he told me that he thought he could do it. He was discussing re-financing with some agency of the government, some sort of re-financing plan, * * Roloff’s further testimony was that Poole was further behind than ever at the end of that six months, and the defendants sent a third notice to plaintiffs under date of January 30, 1959, reading as follows, with emphasis supplied:

“Dear Mr. and Mrs. Poole:
“Your monthly installment payments as set forth in your purchase contract dated December 12, 1955, are delinquent.
“I am notifying you hereby that unless all delinquent installments are paid as called for in said purchase contract within the next thirty days, our agreement will be null and void and I will expect you to vacate the premises on or before March 1st, 1959.
“Yours very truly,”

The defendant further testified that he went to see the plaintiff in February of 1959 and told him to vacate and then entered into a contract with an adjoining owner, Mr. West, for cultivation of the tillable acreage, and on April 9, 1959 entered into the contract with Buxton for cutting and removing the timber.

On May 10, 1959, the defendant Roloff sent a letter to plaintiff, Plaintiffs’ Exhibit 17, reading as follows:

“Dear Mr. and Mrs. Poole:
“Attached hereto is a statement of credits and debits for 1958 relating to the Wright City farm and a summary of all payments made by you to date on your Dec. 12, 19SS agreement which shows $2,100.00 in delinquent payments.
“Although your payments more regular during recent months, the overall picture of payment is not good. During the three and one-half years of your occupancy, the farm buildings have depreciated to such an extent that the Farmers Mutual Insurance Company has cancelled its insurance.
“In view of this situation, I am forced to take steps necessary to protect my interests.
“Yours very truly,”

On May 15, 1959, the Roloffs sent a letter to the Pooles, reading as follows, with emphasis supplied:

“Dear Mr. and Mrs. Poole:
“I am returning herewith your May 20th, 1959 pre-dated check.
“According to the terms of our December 12, 1955 Agreement, your monthly cash payments are in default $2,100.00 as of May 2, 1959.
“The farm buildings have depreciated during your occupancy due to lack of proper care, as provided for in the December 12, 1955 Agreement, to such an extent that the Insurance Company has cancelled some of its insurance pending necessary repairs.
“Therefore, we are notifying you hereby that unless all delinquent payments are paid within thirty days from ■above date, as called for in the purchase Agreement dated December 12, 1955 for property described as:
“The West half of the Southwest •quarter and the Southwest quarter •of the Northwest quarter of Section 3, and The West half of the Northwest quarter and the Northeast quarter of the Northwest quarter of Section 10, All in Township 47, North, Range 1 West, Warren County, Mo., -containing 240 acres, more or less, and unless necessary maintenance repairs are made as called for in the Agreement, said Agreement shall be null and void in strict accordance with terms provided in the last paragraph on page two of said Agreement, and you will be expected to vacate the premises forthwith.
“Yours very truly,”

The gist of an action for trespass is disturbance of possession, Barnhart v. Ripka, Mo.App., 297 S.W.2d 787 and cases cited at [1-3] page 789. The plaintiffs here were purchasers under a contract for the purchase of this farm and were put in possession under this contract. Since they did not dispute defendants’ record title, the plaintiffs had the burden of proving that they were rightfully in possession as against the defendants at the time the trespass occurred, Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142; Barnhart v. Ripka, supra. A defendant in such an action may dispute a plaintiff’s pos-sessory right by showing title and the pos-sessory right in himself, Hoelmer v. Heiskell, Mo., 221 S.W.2d at [2-4] p. 144 and cases there cited. To contest plaintiffs’ evidence on this issue, the defendants contended the plaintiffs did not have possession at the time of the alleged trespass because of the notices sent to plaintiffs in July of 1958 after default in the installment payments. However, the evidence clearly shows that the defendants allowed the plaintiffs to remain in possession, and according to plaintiffs’ evidence, accepted $1,900.00 in contract payments after the notices of July, 1958 were sent, and moreover, orally agreed to extend the time of payment. The alleged trespass began— and this was undisputed — on April 8, 1959. Nevertheless, as late as May 15, 1959, by registered letter, the defendant Roloff clearly recognized the continuation of the purchase contract, for in that letter as set out above he stated that “ * * * unless all delinquent payments are paid within thirty day * * *” from May 15, 1959, and “ * * * unless necessary maintenance repairs are made as called for in the Agreement * * * ” the agreement shall be. null and void. We think it is clear from this letter and the defendants’ other communications and actions that the defendants treated the contract as still in force and the plaintiffs as being in possession of the farm over thirty days after the date of the alleged trespass. They even accepted $400.00 in payments after the date of the trespass. The plaintiffs’ evidence clearly bears out their contention of a waiver by the defendants as to the terms of the contract for purchase, Robberson v. Clark, 173 Mo.App. 301, 158 S.W. 854 at [1] Page 855; Bogad v. Wachter, 365 Mo. 426, 283 S.W.2d 609 at [4,5] page 614; Rogers v. Gruber, 351 Mo. 1033, 174 S.W.2d 830 at [2] page 831. Moreover, it can-hot be denied that the defendants are liable for the trespass, Curlee v. Donaldson, Mo.App., 233 S.W.2d 746; Cooper v. Massachusetts Bonding & Insurance Company, 239 Mo.App. 67, 186 S.W.2d 549 at [4] page 551, even though it was actually done by Buxton and his employees. The result reached herein is clearly indicated by the early case of Brown v. Hartzell (1885) 87 Mo. 564. In that case, plaintiff purchased a piece of land from a third party but never had actual possession although he took title to it. The defendant had purchased the same land from this same third party the year before, and had received permission to go into possession. While in possession, defendant cut and removed timber but his contract for the title to the land was never consummated. It was held that since the defendant was in possession under a contract of purchase the plaintiff could not maintain the trespass action against him even though plaintiff had title to the land. The converse, as presented in this case, is equally true. It follows that the plaintiffs made a submissible case of trespass on real estate and the trial court correctly ruled in denying defendants’ motion at the close of the evidence for directed verdict

The remaining issue is whether the plaintiffs are entitled to a new trial on the issue of damages. The plaintiffs’ assignments of error in this regard amount h> a contention that the verdict was inadequate. The measure of damage instruction required the jury to assess as damages the reasonable market value of the trees as they stood before they were cut and carried away, Sligo Furnace Company v. Hobart-Lee Tie Company, 153 Mo.App. 442, 134 S.W. 585. What happened was that the plaintiffs’ evidence as to the value of these trees as they stood varied from the maximum of $10,177.50 to the minimum testified to of $3,565.00. This was based upon 1,185 trees cut. The transcript does disclose that the trial court did admit evidence as to the fair monthly rental of the farm after the trespass was committed and evidence as to whether the plaintiffs held over on the farm and had to be evicted. The purpose of that evidence was undoubtedly to mitigate damages but the defendants did introduce other evidence going to the measure of damages submitted. This evidence was that the value of the trees as they stood was $1,800.00 which is the exact amount the jury found for the plaintiffs. It is obvious that as to the issue of damages the jury believed the defendants’ experts rather than the plaintiffs’. This they were entitled to do, and our interference would be unwarranted. The trial court did not err in denying plaintiffs’ motion for new trial on the issue of damages only for there was evidence to support the amount found under the measure of damages submitted.

Accordingly, the plaintiffs having made a submissible case, the trial court’s error in sustaining defendants’ motion to vacate the jury verdict and judgment for plaintiffs entered thereon and to enter judgment for defendants, an action taken without giving any notice to plaintiffs or giving plaintiffs an opportunity to be heard, is prejudicial, and the judgment should be reversed and this cause remanded to the trial court with directions to reinstate the verdict of the jury and to enter judgment’ thereon. The Commissioner so recommends.

PER CURIAM.

The foregoing’ opinion of BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court with directions to reinstate the verdict of the jury and to enter judgment thereon.

ANDERSON, P. J., WOLFE, J., and GEORGE P. ADAMS, Special Judge, concur.

RUDDY, J., not participating.


author: McDOWELL, Judge.

text:
    Francis M. DYSART, Claimant-Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Appellant.
    No. 8144.
    Springfield Court of Appeals. Missouri.
    Oct. 3, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 29, 1962.

      Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for appellant.
    Meredith B. Turner, Stewart, Reid & Turner, Springfield, for respondent.
   McDOWELL, Judge.

This appeal is from a judgment of the Circuit Court of Greene County, Missouri, reversing the decision and order of the State Department of Public Health and Welfare removing claimant from the old age assistance rolls August 14, 1961. The Director made the following statement of the case:

“Claimant was removed from the Old Age Assistance rolls on August 14, 1961, on the basis that he had made a transfer of property without receiving fair and valuable consideration. From this decision he duly perfected this appeal, and a hearing was held before a Referee on October 4, 1961. Claimant appeared in person, and he was represented by his Attorney, Mr. Jerry B. Buxton.
“Based upon the entire record and evidence in this case, the Director of the Department of Public Health and Welfare makes the following:

Findings of Fact.

“Claimant owns the property in which he lives, located at 921 Chicago Avenue, Springfield, Greene County, Missouri. Claimant has owned the above-located property for several years and in January 1961, owed approximately $800.00 on it. During January 1961, claimant increased the loan on his property by borrowing an additional.$1,000.00. The payments on the old loan had been $15.00 per month. On the increased loan they are $35.00 per month. This additional sum of money was secured by Mr. Dysart at the request of his former daughter-in-law so that she could purchase a home for her and her children. Both claimant and Martha Dysart, the former daughter-in-law, signed the note for the new loan. Martha Dysart has paid the additional $20.00 payment at all times, and' since claimant’s case was closed has paid' the entire payment on the loan. Claimant turned over to Martha Dysart the entire $1,000.00 without receiving any consideration. It is found that claimant in January 1961, transferred the sum of $1,000.00 to' his former daughter-in-law, Martha Dy-sart, without receiving fair and valuable consideration of approximately equal value at the time and is, therefore, ineligible for Old Age Assistance benefits at this time.
"DECISION: Section 208.010, Vernon’s-Annotated Missouri Statutes, provides, in: part, that public assistance benefits shall' not be paid to any claimant who has made,, or whose spouse with whom he is living has made, an assignment, conveyance or transfer of real or personal property or any interest therein of any value within five (5) years preceding the date of the investigation without receiving a fair and valuable consideration. It further provides that fair and valuable consideration means money or real or personal property received at the time of the transfer equal to the market value of the property transferred, and shall not include support, services, or other advancements made by a relative to a claimant. Any claimant who has made, or whose spouse with whom he is living has made, such assignment, conveyance or transfer shall be ineligible to receive benefits for the number of months within five years from date of transfer as the market value of the property as determined by the Division of Welfare is divisible by the average monthly grant paid in the state at the time of the investigation to an individual under the program for which benefits are claimed. .
“After a careful review of the evidence submitted, it is found that claimant transferred the sum of $1,000.00 in January, 1961, without receiving fair and valuable consideration of approximately equal value at the time, and, therefore, he is ineligible to receive Old Age Assistance benefits at this time.”

From this decision and order Francis M. Dysart, claimant, appealed.

On February 16, 1962, the appeal from the old age assistance claim was heard by the trial court, the transcript examined, cause argued, reversed and remanded. The trial court found that the decision and order of the Director of the State Department of Public Health and Welfare of November IS, 1961, declaring claimant ineligible to receive old age assistance was arbitrary and unreasonable; that there was no substantial evidence on the record to sustain the director’s determination and that such determination was not based on fact or law, for the reason that the transaction which gave rise to the denial of old age assistance was not a transfer of real or personal property, without receiving fair and valuable consideration for said property, within the meaning of § 208.010 RSMo 1959, as amended, and that “this cause is hereby remanded to the State Department of Public Health and Welfare for redeter-mination of this issue in conformity with the judgment of this court.”

On May 11, 1962, the cause was appealed to this court.

The record testimony shows that Martha Dysart, daughter-in-law of Francis M. Dy-sart, was the widow of claimant’s son. Claimant testified;

“Q. Is there a loan against your property there on Chicago Avenue? A. Yes, sir. I don’t know just what it amounted to. About $800.00 at that time, didn’t it?
“Q. You say, at that time. I believe you told me in January of this year that you increased the loan? A. Yes.
“Q. Would you tell us, please, for what purpose you increased the loan? A. Well, my daughter-in-law needed the money, and come to me and asked me would I let the place stand good for it, and I went to JWye-att, and he said ‘Yes, I’ll be glad to loan it.’ (Mr. Wyeatt is with the United Savings and Loan Association.)
“Q. Was there a note and mortgage signed, a new mortgage signed, when this loan was made? A. Yes, sir.
“Q. Did you sign the mortgage? A. Yes, sir, I signed the mortgage.
“Q. And did you also sign the note? A. Yes.
“Q. Did someone other than yourself sign the note ? A. My daughter-in-law did.
“Q. Is your son, who was formerly married to Martha Dysart, deceased at this time? A. Yes, he has been for eight years.
“Q. Do you know of your own knowledge whether Martha Dysart has children of this marriage? A. She has got two of my son’s. * * * She has got three others.”

The evidence is undisputed that it was the agreement between Martha Dysart and her father-in-law, claimant, that she needed $1,000.00 to purchase a home; that she did not have sufficient security to borrow the money and went to claimant and asked him to sign a note with her and increase the loan on his home to $2,000.00 so as to pay off the existing mortgage indebtedness of $895.00 to the loan company and allow Martha Dysart $1,000.00. Both parties signed the note and the loan was secured by a new mortgage for $2,000.00. We think the evidence is undisputed that Martha Dy-sart was to pay $20.00 monthly on the $1,-000.00 she received and claimant was to pay $15.00 monthly, the same as he was paying on his old indebtedness. In other words, the parties jointly borrowed $2,000.00 on their joint note and claimant secured the loan on his home.

The evidence further shows that claimant and his daughter-in-law each paid their in-stalments until claimant was removed from the old age assistance rolls and could no longer pay and that since that time Martha Dysart has paid the entire $35.00, being the instalment on the $1,000.00 which was her part of the loan and $15.00 that was Dy-sart’s part.

We do not agree with the contention and finding of the State Department of Public Health and Welfare that claimant ever turned over $1,000.00 of his money to Martha Dysart. The money she received was the part of the loan which was agreed upon before it was made. She pays the instal-ments on that money and is indebted on the note signed by her for the same. There is no substantial evidence to support the contention of the State Department of Public Health and Welfare that claimant was to receive all the money from the loan but the evidence is undisputed that he was to receive sufficient money to pay off the existing indebtedness against his home at that time. Undoubtedly, there can be no dispute that claimant was merely loaning his security to his deceased son’s wife to enable her to buy a home.

Appellant makes two assignments of error. First, that the Circuit Court erred in remanding the proceedings to the Director of the Department of Public Health and Welfare for redetermination on the basis that the decision of the Director was arbitrary and unreasonable.

Secondly, that the court erred in holding that respondent did not make an assignment or transfer of property or an interest therein when he executed a mortgage or deed of trust against his property without him receiving the money that was borrowed.

In our decision it first becomes necessary to determine whether or not claimant’s execution of a deed of trust against his property to secure a loan made to him and his daughter-in-law for $2,000.00 whérein she received $1,000.00 and the balance of the loan was used to pay off claimant’s indebtedness renders claimant ineligible for old age assistance under Section 208.010 RSMo 1959 V.A.M.S. as amended.

Section 208.010 [2] reads: “Benefits shall not be payable to any claimant who:

“(1) (a) Has made, or whose spouse with whom he is living has made, an assignment, conveyance or transfer of real or personal property or any interest therein of any value within five years preceding the date of the investigation without receiving fair and valuable consideration for said property. The date of recording or filing of any instrument affecting property that is assigned, conveyed or transferred by written instrument shall be considered as the date such assignment, conveyance or transfer occurred. Fair and valuable consideration’ as used herein means money or real or personal property received at the time of the transaction approximately equal to the market value of the property assigned, conveyed or transferred, * * *

On appeal from the action of Director of State Department of Public Health and Welfare denying old age assistance, reviewing court must consider only evidence most favorable to findings and order and whether reviewing court, might have, upon consideration of evidence de novo reached other conclusions is not determinative. That the circuit court might have, or that the appellate court, upon consideration of the record de novo, could reach the opposite conclusion from that reached by the director is neither of consequence upon, nor determinative of this appeal. Brattin v. State Social Security Commission, Mo.App., 194 S.W.2d 536; Morton v. State Social Security Commission, Mo.App., 205 S.W.2d 272; Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 [4]; Ellis v. State Department of Public Health & Welfare, 365 Mo. 614, 285 S.W.2d 634.

In the Collins case, supra, 270 S.W.2d at page 820 [5, 6] the Supreme Court stated:

“In considering whether there is any substantial evidence of record to support the ■Director’s findings and order, an appellate court as a matter of law passes only upon the matters of substance. Questions concerning credibility of witnesses or the weight of the evidence are not before us upon'this appeal. ‘Substantial evidence’ is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issue's in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced. State v. Miller, Mo.Sup., 202 S.W.2d 887, 889; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 752; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51, 52.”
“* * * But if the Director’s findings are contrary to the determinative undisputed facts, and are therefore arbitrary and unreasonable we must so find, and reverse the judgment.” Collins v. Division of Welfare, supra, 270 S.W.2d at page 819 [2]. (See authorities cited).

The order and decision of the Director is based upon grounds that claimant transferred to his daughter-in-law $1,000.00 without receiving fair and valuable consideration of approximate equal value at the time. Nowhere does the Director of State Department of Public Health and Welfare base its decision upon the giving of the deed of trust to secure the loan in question.

In Nichols v. State Social Security Commission of Missouri, 349 Mo. 1148, 164 S.W.2d 278, 279 [2, 3] the law is declared that in proceeding for old age assistance, “Whenever the facts present a situation calling for the application of a specific provision of the law, it would be better and we think in accord with the legislative intent for the Commission, a statutory body, to so word the award as to remove all doubt of the ground or grounds upon which it is entered that it may be intelligently reviewed by the courts”.

We find from the evidence under appellant’s first assignment of error that there was not substantial evidence to support the order and decision of the State Department of Public Health and Welfare that claimant transferred $1,000.00 to his daughter-in-law without receiving fair and valuable consideration of approximate equal value at the time.

Under this alleged error, appellant, in its argument on pages 24 and 25 of its brief, stated: “The facts surrounding this transaction are fairly simple and not disputed. Respondent lives in property he owns located at 921 Chicago Avenue, Springfield, Missouri. In January, 1961, there was a mortgage or deed of trust against this property amounting to Eight Hundred Ninety-Five Dollars with monthly payments of Fifteen Dollars per month being made by respondent. Respondent testified his daughter-in-law Martha Dysart needed some money to purchase a house. He went to the United Savings and Loan Association to see about a loan and they agreed to make the loan. A new promissory note for Two Thousand Dollars was signed by him and his daughter-in-law and a new mortgage or deed of trust was executed to the United Savings and Loan Association. Respondent did not receive any of the money that was borrowed on the new loan. His daughter-in-law received One Thousand Dollars. The payments on the loan were increased to Thirty-Five Dollars per month. There was an understanding of some kind between respondent and his daughter-in-law that she would pay Twenty Dollars each month and he would pay Fifteen Dollars each month on the loan. She has been making the payments of Thirty-Five Dollars per month since May, 1961, when Respondent’s old age assistance payment was terminated.”

This argument concedes that claimant did not receive the $1,000.00 in question, and, therefore, the judgment of the State Department of Public Health and Welfare is not sustained by the facts or substantial evidence and the trial court was justified in finding that the order and decision was arbitrary and unreasonable.

Under appellant’s second alleged error it contends that the trial court erred in holding that claimant did not make an assignment or transfer of property or an interest therein when he executed a mortgage or deed of trust against his property without him receiving the money that was borrowed.

We hold there is no basis for this alleged error for the reason that the order and decision of the State Department of Public Health and Welfare was not based upon the transfer of property by the execution of the mortgage or deed of trust to- secure the $2,000.00 loan. Under the law cited the decision and order should be so worded as to remove all doubt of the grounds upon which it is entered that it may be intelligently reviewed by the court.

In reviewing an old age assistance award courts determine only whether a fair hearing has been granted applicant and whether the decision of the Director was arbitrary and unreasonable. Davis v. State Department of Public Health & Welfare, Mo.App., 274 S.W.2d 615.

There is no dispute as to whether the hearing was fair. The only issue involved is whether the decision of the Director was arbitrary and unreasonable.

While we have found that there is no merit in applicant’s second contention that claimant made himself ineligible for old age assistance by giving a mortgage to secure $2,000.00 to the United Savings and Loan Association because the Director did not •make this conveyance a basis for its decision, yet, we think under the law there is no merit to this contention under the facts and the law as declared by the courts of Missouri.

In Kline v. McElroy, Mo.App., 296 S.W.2d 664, 665[1,2], Judge Cave, speaking for the Kansas City Court of Appeals, stated: “The judgment does not involve the title to real estate, as a mortgage is a mere lien on real estate.”

In Park National Bank of Kansas City v. Travelers Indemnity Co., D.C., 90 F.Supp. 275, 277[1] the court stated: “A mortgage, according to the law of practically all of the states, and particularly by the laws of Missouri, ‘is regarded as nothing more than a mere lien, encumbrance, or security for a debt, and passes no title or estate to the mortgagee, and gives him no right or claim to the possession of the property * * * . The mortgage is not necessarily a grant or sale of the property, and the mortgagor is the real owner, and holder of the legal title, of the mortgaged property unless otherwise specifically provided.’ 59 C.J.S. Mortgages, § 1, pp. 24, 25 and 26.

“As was said by the St. Louis Court of Appeals in Klika v. Albert Wenzlick Real Estate Co., 150 S.W.2d 18, loc. cit. 24: ‘ * * * a mortgage or deed of trust in the nature of a mortgage, given on land to secure the payment of a debt, is now regarded in this State as being in its last analysis a lien and nothing more. Dickerson v. Bridges, 147 Mo. 235, 244, 48 S.W. 825; Missouri Real Estate & Loan Co. v. Gibson, 282 Mo. 75, 220 S.W. 675, 676.’ ”

In Tower Grove Bank & Trust Co. v. Weinstein, 8 Cir., 119 F.2d 120, 122 [1], the law is stated: “In Missouri the nature and effect of a mortgage is well settled by the decisions of its courts. In the case of Missouri Real Estate & Loan Co. v. Gibson, 282 Mo. 75, 220 S.W. 675, 676, the Supreme Court said: ‘Notwithstanding a few attributes that still inhere in it as a result of its common-law origin, a mortgage, or deed of trust in the nature of a mortgage, given on land to secure the payment of a debt, is now regarded in this state as being, in its last analysis, a lien and nothing more. * * * So viewed, it is neither an estate in land, nor a right to any beneficial interest therein. It is neither jus in re nor jus ad rem. It is merely the right to have the debt, if not otherwise paid, satisfied out of the land.’ ”

Under Liens, 53 C.J.S. p. 828, § 1, the law is stated:

“Mortgage. The term ‘lien’ is somewhat analogous to the term ‘mortgage,’ and in everyday use includes mortgage; and, when they are used in the same connection, in a statute or instrument, they serve to explain each other’s meaning. A lien in the nature of a mortgage is a mortgage itself.”
On page 829, § 1(b), it is stated: “* * * It is said that a lien is not an interest in a thing; and does not constitute a right of action for the property, but rather constitutes a charge or security on the property, whether it is legal or equitable.”

Under Liens, 33 Am.Jur. p. 419, § 2, the law is stated:

“In its most general significance, a lien is a charge upon property for the payment or discharge of a debt or duty. It is a qualified right, a proprietary interest, which, in a given case, may be exercised over the property of another. It is a right which the law gives to have a debt satisfied out of a particular thing. However, it confers no general right of property or title upon the holder; on the contrary, it necessarily supposes the title to be in some other person.” See Mortgages, 19 R.C.L. p. 311, § 88.

In Bankers Home Bldg. & Loan Ass’n v. Wyatt, 139 Tex. 173, 162 S.W.2d 694, 696 [5, 6] the law is stated: A lienholder does not have “title to the land. For some purposes and within the meaning of certain statutes, a lien is not classified as an interest in land. And although the word ‘right’ is broad enough to embrace whatever may be lawfully claimed, it has been held in another state that a judgment lien is not a proprietary right in land, but is merely a right given the judgment lien creditor to levy on land of the judgment debtor for the purpose of satisfying the judgment to the exclusion of any right which may have accrued to others since the attachment of the lien.”

Under the law we find from the authorities herein cited that the mortgage given by claimant as security for a joint loan from the United Savings and Loan Association conveyed no estate in the land but created and evidenced a lien thereon to secure the debt. Tower Grove Bank & Trust Co. v. Weinstein et al., 119 F.2d 120, 122. In 53 C.J.S. Liens § 1, p. 829 it is stated that “A lien is not an interest in a thing; and does not constitute a right of action for the property, but rather constitutes a charge or security on the property, whether it is legal or equitable.” And in Bankers Home Bldg. & Loan Ass’n v. Wyatt, supra, the court stated: “A lienholder does not have title to the land. For some purposes and within the meaning of certain statutes, a lien is not classified as an interest in land.” Therefore, we hold that the trial court was justified in finding that the transfer by claimant in giving a mortgage to secure the $2,000.00 note is not a violation of the statute relied upon by appellant. We have already stated that we think there is no substantial evidence that there was a transfer of $1,000.00 by claimant to his daughter-in-law. This fact was admitted, as we have quoted herein from the argument of appellant’s counsel, so we find against appellant on its second alleged error.

Judgment affirmed.

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


text:
    In the Matter of Terry Rae SHEPLER and Kevin Lee Shepler, Minors. Edward R. SHEPLER, Petitioner, v. Otis Terrill SAYRES and Lorena Sayres, his wife, Respondents.
    No. 31373.
    St. Louis Court of Appeals. Missouri.
    Oct. 31, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 20, 1962.
    J. Andy Zenge, Jr., and Richard R. Howe, Canton, for petitioner.
    Brown & Normile, Edina, for respondents.
   BRADY, Commissioner.

This is a proceeding in habeas corpus instituted in this court by Edward R. Shep-ler, hereinafter referred to as the petitioner, natural father of Terry Rae Shep-ler, age 11, and Kevin Lee Shepler, age 7, to obtain their custody from Otis and Lorena Sayres, hereinafter referred to as the respondents, the children’s maternal grandparents with whom the children have been living since the death of their mother.

The deceased mother of these children was divorced from the petitioner in 1955 and by the decree was awarded custody of the children and $100.00 per month for their support. On July 24,1960, the mother, Melba Shepler, drowned. The facts concerning the first attempt by the petitioner to get custody of these children since that' unfortunate occurrence, and the attempts hy the maternal grandparents directed to the same end are related in Shepler v. Shepler, Mo.App., 348 S.W.2d 607. The next step taken by the petitioner was to file his application for a writ of habeas corpus in the circuit court of Knox County. Upon the return being filed, a hearing was held with the result that the petitioner’s application was denied. The petitioner then filed his application for a writ of habeas corpus before this court, alleging: (1) his parenthood and the death of the children’s mother; (2) that the respondents “ * * * have held the children over the protest of petitioner since the death of their mother as aforesaid * * * ” and are now doing so; (3) that this restraint by the respondents is illegal, the petitioner as natural father being “* * * the only person having legal right to the care, custody and control of said minor children”; and (4) that the petitioner had made no previous application to this court or to the Supreme Court for the relief sought herein.

The return admitted the petitioner was the father of the children, the death of their daughter, the children’s mother, and that the children have lived with them since the mother’s death, but denied the other allegations as to restraint or the illegality of the children so residing, and that no other application had been made to this court or to the Supreme Court. The respondents also alleged that they were awarded custody of these children as a result of the judgment of the circuit court of Knox County denying the petitioner a writ of ha-beas corpus. The return then alleges that:

“ * * * since the date of the divorce mentioned above, the petitioner failed and refused to pay to the deceased Melba E. Shepler the child support awarded to her by the court, and still refuses to assist in the support of these children to any material extent, the sole extent of his support being in infrequent gifts of toys and clothing; * * * that the petitioner has abandoned said children and has not seen them for a period of about one year and prior to that time had not even seen them for several years; that the children in question are happy, content and in a good state of health and a move to a strange environment to live with people who are strangers to them would have an adverse affect (sic) on the mental health and physical well-being of these infant children; * * * that the petitioner has demonstrated his contempt for the Honorable Courts of the State of Missouri, and the orders and judgments of said Courts, by failing and refusing to obey the orders of said Courts in that he completely failed and refused to pay the child support awarded by the Circuit Court of Scotland County, Missouri to the mother of the minor children and has failed and refused to pay the costs taxed against him by order of the Circuit Court of Knox County, Missouri in the Habeas Corpus hearing held August 22, 1961; that to grant the relief prayed for by the petitioner would adversely affect the life, education and welfare of these children.”

The return then alleges, “That for all of the reasons aforesaid, Edward L. Shepler is not a fit person to have the custody of said minors and it would be to the best interest of said minors that the custody be awarded to * * *« respondents.

When the instant application was submitted to this court, the parties stipulated that the testimony taken in the Knox County application for habeas corpus would be the evidence, and no further testimony would be offered. This court permitted that procedure subject to our ruling that if the transcript failed to disclose sufficient facts upon which we could arrive at a conclusion as to the father’s fitness we would then order a further hearing.

There were many other allegations in the return which under our decision herein become pertinent only if this court should find the petitioner unfit. Since we do not so find the petitioner, the allegations in the re-, turn dealing with the commendable actions of the Sayres in taking care of these children since the mother’s death, those going to the financial condition of the Sayres and their good character, those dealing with the children’s present well being and scholastic achievements, and those allegations of the return dealing with the present happy environmental adjustment made by the children and the evidence supporting such allegations will not he stated.

Another preliminary matter that should be disposed of prior to a consideration of the evidence is the contention of the Sayres that we are not to reverse the findings and ruling of the circuit court of Knox County unless we find them “ * * * in conflict with a clear preponderance of the evidence so as to disclose a manifest abuse of judicial discretion” as he states it. This is not the law. The prior determination by the Circuit Court of Knox County of the same issues here presented to this court does not so affect the right of the petitioner, whose application was refused in the circuit court, to bring to us his application for the writ, Ex parte Archer, Mo.App., 253 S.W. 1095 at [2] page 1096; Ex parte Lofts, Mo.App., 222 S.W.2d 101. The matter is not one of appeal, In re Waller, Mo.App., 234 S.W. 866, and we are not hound by the limitation of review urged by counsel for respondent.

The facts are rather sketchily developed with respect to chronological order, but a careful reading of the transcript indicates that with respect to petitioner’s financial condition, petitioner first worked in Des Moines, Iowa, in 1952, at a chemical company, then became a machinist and then a tavern .operator. It does not appear whether these latter employments were prior or subsequent to his divorce from the deceased mother of these children in 1955. In any event, very shortly after his divorce, petitioner married one Ruth Williams who owned and operated two taverns in Des Moines. According to petitioner, they had a good deal of marital difficulty and were divorced in 1956. In connection with his marriage to Ruth Williams, the Sayres attempted to show that the petitioner had been arrested on a charge of attempted murder and robbery and that his then wife, one Ruth Williams, was the complaining witness. Upon objection that the charge was later dismissed, the trial court refused to allow the Sayres to develop the matter, and an offer of proof as to the arrest was then made and refused. The petitioner first went into the aluminum siding business in 1956 when the tavern failed and began as a “ * * * helper, or trainee, for an aluminum siding company, learning the business * * * ”, that he worked at that job, traveling through North Dakota and South Dakota and Minnesota and Michigan, and when the weather got colder through Indiana, Kentucky, West Virginia and the Carolinas; that he would work three weeks, with a week off, and got paid by the square of siding he applied; that he pursued this work for about two years and then went to work for Farm and Home Builders — where is not stated, but the inference is in Kirks-ville, Missouri — on a commission basis, making “ * * * Just enough to get by on, and own a car to do the job, and that’s about it”; that he is now a partner in the Southwestern Improvement Company in Phoenix, Arizona, and is engaged in selling and installing “ * * * aluminum siding, and we have patios, etc. * * * ”; that in this business he is in charge of construction, his partners who sell and workers in the sales and construction end of the business; that he lives on what he makes out of the construction end of the business as an applicator of this siding and his partners live out of their sales commissions, leaving whatever profit to build up the business; that he had been making around $1,000.00 a month for about six months prior to this hearing on August 22, 1961; and that he also owns some first mortgages on real estate which were given to the company to pay for the services and materials of the company. It is not necessary to go into all the testimony regarding petitioner’s income. It will suffice to state that the respondent contended that the discrepancies in his statements as to his income and the income indicated by his net after deductions and exemptions “ * * * clearly goes to the weight that must be given to this man’s testimony, and also goes to his ability to support his children.” The petitioner stated that he did not remember specific amounts deducted for business expenses or for charities or churches, since he turned all those matters, with his receipts, cancelled checks and similar evidence over to “ * ⅜ * the man makes it out for me * * *» Copies of his income tax returns for 1959,1960 and 1961 were filed as exhibits. They show an adjusted gross income in 1959 of $2,794.89 on a total income of $10,090.75, the difference, of course, being business expenses. For 1960, the adjusted gross was $4,839.96, and the total income was $13,523.22. Also on file was a copy of the 1961 return, showing a total income of $12,040.53, on which the adjusted gross was $5,950.19, and also additional net income of $4,007.81 for a total of $9,958.00. After deductions and exemptions, petitioner had a taxable income of $7,762.20 for that year. The petitioner further testified that he pays $100.00 a month rent on his apartment, $150.00 a month on his automobile, and estimated that he would have to set aside about $75.00 a month for federal income taxes; that the present monthly amount spent on recreation is $20.00 or $25.00; that he has no life insurance; that his car insurance is included in his payments; that he doesn’t know what he gives monthly to churches and charities; that he gives his wife $25.00 or $30.00 a week for groceries; that he pays $50.00 a month on his furniture which will be paid for in two more months; that his wife has a car given to her by her father, and they use this car for personal matters and his car for his business. The petitioner stated that he would take care of his children and “ * * * could work nights if I had to. I hope I can”; that whatever it takes to support them he would get and that “ * * * I will either sell the car and use one car or I will do something else. Now, I also get ten per cent net of the business at the end of ’61. I’ll tell you what that is after the end of this year. It could be five or six thousand dollars. I don’t know, but I’ll file on that this coming year. But that’s ten per cent of the net profit of the business that I have never gotten yet, but it should be this time.”

With respect to other issues the petitioner’s testimony was that his present apartment in Phoenix consisted of two bedrooms, kitchen, bath and living room which he thought of sufficient size should the children be placed with him. He had moved to this apartment because it had a swimming pool and a big playground and lawn and was air-conditioned and he could get a three bedroom one for only slightly more, about five dollars a month more, and even less than he was now paying if it was merely air-cooled instead of air-conditioned. He also testified that the school was only two or three blocks from the apartment and he intends to see that the children go to school and finish high school; that the apartment is also just two or three blocks from the church his wife regularly attends, although he is not a member of any church having attended only four or five times in the year before his testimony, and that he would see to the children’s regular Sunday School attendance. He gave his age as 36, and the age of his wife, a native of Iowa, as 26 years old. His wife had never been married before and was not working.

When questioned about his failure to pay the support money ordered by the divorce court, his testimony was that he paid the $100.00 support decreed by the divorce court for four or five months until “ * * * I had a business failure and so forth up there, and I didn’t have it to pay” but he had helped some through “ * * * gifts and Christmas and so forth * * * ” and that his sisters and mother had helped the children continually. His further testimony on this issue was that he started making this amount per month in November of 1959 and when asked if he had enough left out of it to pay the child support called for in the divorce decree stated, “Well I suppose I could have * * * I didn’t. That’s right. But they were taken care of, though.” When asked why he hadn’t paid this support award in the past, petitioner’s testimony was:

“ * * * When you can’t, you can’t. I made one mistake and I’m trying to get straightened out and I am getting straightened out, and I can take care of them, and I’m young and I can take care of them and get them through school, and I don’t know as they can where they are now. Neither one of their boys went to high school, they quit in the 8th grade, and I went through high school, and my kids are going through high school if I can have anything to do about it. * * * ”

Questioned about not coming to see the children, petitioner stated that while he lived nearby he came to see the children as often as he could until the deceased mother asked him to stay away; that this was “ * * * Sometimes every month, sometimes six months, maybe once a week * *”; that the children were then in Kirksville or at his sister’s, although it is not stated with whom they were in Kirksville, or where his sister lived; that prior to July 24, 1960 he last saw the children on July 4, 1959, that while he was working for Farm and Home Builders in Kirksville in the summer of 1959, he saw them “ * * * every night for a week or so * * * ”. Other testimony on this issue comes from Mrs. Sayres, who testified in a deposition held after the hearing before this court and filed in this proceeding by agreement of the parties and with our leave that she was familiar with the petitioner’s handwriting; that to her knowledge the children have never received letters from the petitioner since their mother’s death; and that they had received some cards written to them in care of the Sayres. Exhibits 2 and 3 were birthday cards, signed “Daddy and Millie”, Exhibit 4 was a Valentine for the boy, and Exhibit 5 was a Valentine for the girl which were signed in the same way. Exhibits 6 and 7 were Easter cards for each of the children signed “With love, Daddy and Millie.” There was also a short note on the back of these cards which told of an Easter package on the way, of “western clothes” having been sent to each for their birthday and of the receipt of a picture from the children. In addition to these cards, Mrs. Sayres testified that there were Christmas cards also; that the signatures on the Exhibits 2 through 5 were not in the petitioner’s handwriting and neither was the note on Exhibits 6 and 7, but that on the last two cards there was some printing, “I love you, Daddy” and she could not say whose it was. None of the Exhibits 2 through 7 was dated. The witness further testified that the children received money from the petitioner on Easter, $2.50 the last Easter, and $1.50 before that; that except for this money the petitioner had not contributed any money since July, 1960, but did send clothing: “Q. On how many occasions? A. Oh, on birthdays and Christmas” ; that this clothing consisted of “ * * jeans and T’ shirts and skirts and blouse; and each one of them, a riding outfit * * *”; that she did not know of any telephone calls to the children from the petitioner; and that since July, 1960, the children had visited the petitioner’s sister in her home where the gifts of clothing previously mentioned were delivered. On cross-examination, Mrs. Sayres testified she had never written to the petitioner about the children and the only thing she had done was to have the children send the petitioner their school pictures in 1961.

The other testimony offered by the petitioner was that of his wife and as offered by the respondents was that of neighbors and friends of the Sayres, their daughter-in-law, and the children’s school teacher. All of this testimony goes to matters other than the issue of the petitioner’s fitness.

It is true that as the rule of law applicable to proceedings of this nature is sometimes stated, the wording thereof might reasonably lead to the conclusion that the parental right is supreme in and of itself. Examples of such wording are to he found in cases which recite the rule in the following or similar fashion: It is the duty of the court to award the person of the infant to the custody of the parent, unless it is made manifest to the court that the parent, for some reason, is unfit or incompetent to have custody or unless the welfare of the child itself, for some special or extraordinary reason, demands this disposition be made. In the Matter of S and L, Mo.App., 306 S.W.2d 638; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467; In the Matter of Scarritt, (1882) 76 Mo. 565 at loc. cit. 582; In re Richardet, Mo.App., 280 S.W.2d 466; Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949 at loc. cit. [13] page 959. It is likewise true that other statements of the rule just as reasonably lead to the conclusion that all that must be done is for the court, as the respondents’ counsel states it, to “ * * * place on a scale the welfare of these young children and if the scale tips in favor of awarding custody to the maternal grandparents * * * ” then the writ must be denied. An example is the language of the court in Testerman v. Frederich, Mo.App., 323 S.W.2d 522 at [2] page 525:

“We recognize the rule of law that a natural parent has the primary right to the custody of his children. But we also recognize that in determining the issue of custody, the one consideration that preponderates all others is the welfare of the children. * * *
“It is our conclusion that the welfare of the children will be best served by denying the petition * *

However, a careful reading of Testerman, supra, will disclose that in fact the court actually found, although the wording was couched in terms of the welfare of the children, that the father was unfit.

A correct statement of the rule to be applied in these cases is one that recognizes the presumption which courts find arises from the relation of parenthood. Thus, in Ex parte Archer, Mo.App., 253 S.W. 1095, a habeas corpus proceeding brought by a father to obtain the custody of his eleven-month-old son alleged to be unlawfully restrained by the maternal grandmother, the court at [3-5], page 1096, of 253 S.W., stated:

“We next come to the proposition of the welfare of the child. The law seems to be well settled that the primal consideration of courts in cases of this character is the welfare of the child. It is also equally well settled that the presumption is that the best welfare of the child is to be with its parents. See Orey v. Moller, 142 Mo.App. 579, 121 S.W. 1102; In re Boutelle, 124 Mo.App. 450, 101 S.W. 1096. To overcome this presumption, those seeking to deprive the parent of the child must make a strong showing that the parent is an unfit person to have the child, and in the absence of such showing the presumption should and does prevail.”

In the case of In the Matter of Cole, Mo.App., 274 S.W.2d 601, a habeas corpus proceeding brought by a mother to obtain custody of her children, allegedly restrained by their stepmother, the divorced father to whom custody had been awarded having died, this court at syllabus [1-4] page 608, of 274 S.W.2d held that:

“ * * * By his death the natural right of petitioner as mother and surviving parent was revived and she became entitled to the custody of her children as against respondent, whose actual custody was without legal sanction, if and providing petitioner is a fit and suitable person. State ex rel. Walker v. Crouse, 240 Mo.App. 389, 205 S.W.2d 749. Parents as the natural guardians of their minor children are presumed to be fit and qualified to assume the custody of their children and the natural right of the parent should never be denied unless it is made manifest to the court that he or she for some strong and cogent reason is unfit or incompetent to take charge of the children, or unless the welfare of the children themselves, for some special or extraordinary reason, demands a different disposition at the hands of the court. Cox v. Carapella, Mo.App., 246 S.W.2d 513. * * * Having raised the question of the fitness of petitioner to act as custodian as an affirmative defense, respondent had the burden of proof on the issue of fitness. Cox v. Carapella, supra; Williams v. Williams, 240 Mo.App. 336, 205 S.W.2d 949.”

The standard by which we are to determine the fitness of the petitioner to have his children has previously been considered by this court. In Cox v. Carapella, Mo.App., 246 S.W.2d 513 at loc. cit. [3] page 516, this court pointed out that the policy of this state in that regard has been declared in several statutes where the effort is to divest the parent of custody of the child, and held that the same standard serves as the measure of fitness where a parent seeks by habeas corpus to obtain his or her child from strangers holding the child without sanction of judicial decree. Section 210.120, RSMo 1959, V.A.M.S. covers the situation where the effort is to suspend the rights of the parent or parents, and commit children to the guardianship of the Department of Public Health and Welfare of this state. Then the test is whether the child is “ * * dependent upon the public for support, or in a state of habitual vagrancy or mendicity or is ill-treated, and his or her life, health or morals are endangered by continued cruel treatment, neglect, immorality or gross misconduct * * *.” Section 211.441 (2) RSMo 1959, V.A.M.S. provides the state may proceed to terminate parental rights under the juvenile code when it appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition there has been abandonment; or that the parents have “ * * * willfully, substantially and continuously or repeatedly neglected the child and refused to give the child necessary care and protection * * * ” or that the parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care where legal custody is lodged with others; or where the parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or repeated lewd and lascivious behavior found by the court to be seriously detrimental to the health, morals, or well-being of the child; or where the parents have been found to be incompetent under Chapter 475, RSMo 1959, V.A.M.S. Our statutes state that the consent of a parent to the adoption of his or her child by another is not required where, for a period of at least one year prior to the filing of the petition for adoption, the parent “ * * * either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.” § 453.-040, (4), RSMo 1959, V.A.M.S.

It follows that the ultimate question in the instant case is whether the respondents have borne the burden of proof that petitioner is unfit under one or more of the following considerations as taken from these statutes in that petitioner has (1) willfully abandoned these children or has willfully, substantially and continuously or repeatedly neglected them, or being financially able, has willfully neglected to provide these children with the necessary subsistence, education or other care necessary for their health, morals, or welfare, or has neglected to pay for such subsistence, education or other care while their legal custody was with their mother; and (2) whethe the petitioner is unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or by reason of repeated lewd and lascivious behavior that we find would be seriously detrimental to the health, morals or well-being of these children; and (3) whether the children, if placed in his custody, might become dependent upon the public for support, or in a state of habitual vagrancy or mendicity, or that the children would be ill-treated or their li- s, health or morals would be endangered by cruel treatment, neglect, immorality or gross misconduct, Cox v. Carapella, Mo.App., 246 S.W.2d, supra, at page 517.

Applying the evidence in this case to these tests to determine the petitioner’s fitness leads inexorably to the conclusion that the respondents have failed to carry their burden. As to most of the inquiries, such as debauchery, habitual use of intoxicating liquor or narcotic drugs, lewd and lascivious behavior as found in subpara-graph (2) above, and as to cruel treatment, immorality or gross misconduct as found in (3) above, there is complete failure of evidence. As to the ability of this petitioner to prevent the children from becoming dependent upon the public for support and not in a state of habitual vagrancy or mendicity and the chance of their ill treatment or neglect by the petitioner if placed in his custody, as stated in (3) above, the evidence clearly and greatly preponderates in petitioner’s favor. His income is sufficient to care for the children and his testimony indicates he intends to give these children proper schooling, religious instruction and that they will be cared for while he is at work. The evidence also shows that the petitioner never abandoned these children or that he willfully neglected to provide for them in the past. It is true he did not pay all of the support money awarded the deceased mother by the divorce decree, but it is equally apparent from this transcript that he was not in a position to do so until November, 1959. It should be remembered that eight months after that date the children’s mother drowned and he has been in almost continuous litigation since that time seeking the custody of these children so he could support them. We cannot and do not condone petitioner’s failure during this eight-month period to pay this support money but under the factual situation here presented we do not find this eight-month failure to be such as would authorize us to characterize petitioner as a person unfit to have custody of his children.

Accordingly, the respondents háving failed to bear their burden of proving the petitioner unfit, he is entitled to the custody of his children forthwith. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The petitioner is hereby granted the custody of his children forthwith.

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


author: McDowell, judge.

text:
    IVEY OIL, INC., Plaintiff-Appellant, v. Dee MYERS and Wilma Myers d/b/a Myers Derby Station, Defendants-Respondents.
    No. 8123.
    Springfield Court of Appeals. Missouri.
    Oct. 10, 1962.

      Fred Foster, Jr., Camdenton, J. W. Grossenheider, Lebanon, for appellant.
    Hugh Phillips, Camdenton, for respondent.
   McDowell, judge.

This appeal is from a judgment of the trial court of Camden County, Missouri, entered January 10, 1962, dissolving the attachment and awarding $100.00 to respondents on their counterclaim for electric current paid by them for the benefit of George Ivey d/b/a Ivey Oil, Inc.

The action was brought by appellant, a gasoline and oil distributor, against respondents, former service station lessees. The petition included an action on account for balance due on materials and merchandise purchased by respondents from George Ivey; on a note for opening inventory; re-plevin on chattel mortgage on motor vehicle given to secure the note and for two months rental on service station. Respondents set forth various items in their counterclaim for monies alleged to be due them by the appellant.

Appellant filed an affidavit in attachment January 26, 1961, the date of filing of the suit, and service was had thereon in Camden County. On January 10, 1962, the court rendered judgment in favor of appellant on the petition for a total sum of $5,001.26 and for respondents on their counterclaims in the sum of $2,150.46, leaving a net judgment due appellant of $2,-850.80, and dissolved the attachment. Respondents filed no notice of appeal. Appellant appealed only from that portion of the judgment finding the issues on the attachment in favor of respondents and in finding the issues on paragraph numbered 6 of respondents’ counterclaim to count I awarding them $100.00 thereon.

Appellant presented evidence on two grounds alleged to support its attachment: That the respondents had fraudulently concealed, removed or disposed of their property and effects so as to hinder or delay their creditors and that the debtors had failed to pay the price or value of any article or thing delivered, which, by contract, they were bound to pay upon delivery.

With respect to the first ground of attachment, the evidence shows that the business dealings between appellant and respondents covered a period of two years. During this period, on more than one occasion, respondents made payments, by checks, on open account owed Ivey and the checks were returned for want of sufficient funds. The evidence is that Myers and his wife maintained a personal account 'and an account in the name of Myers Derby Station in the First National Bank of Camdenton. In the early part of October, 1960, defendant, Dee Myers, gave Ivey a check in the sum of $553.25, drawn on the Myers Derby Station account to apply as payment on their delinquent account. October 13, 1960, respondents were given credit on their account on the books of appellant for this amount. October 28th the check was returned marked “insufficient funds”. Ivey, later, consulted respondent, Dee Myers, in regard to the non-payment of this check and Myers gave him another check dated December 5, 1960, drawn on the same account, in the same bank, to replace the first check that had been returned. Respondents, on November 1, 1960, withdrew all the money deposited in the Myers Derby Station account in the First National Bank and deposited $450.00 of this amount in a new personal account of Wilma Myers in the Camden County Bank of Camdenton and the balance of the money so withdrawn from said account in Dee Myers’ name. The account in the Camden County Bank was an active one; 23 checks had been issued to local people in a three months’ period and there never had been any instructions to the Camden County Bank to conceal the account. The two banks were about a block apart in the city of Camdenton.

After the second check was returned for insufficient funds George Ivey, in behalf of appellant, went to Myers Derby Station to see Dee Myers about the situation and found the station bare and the merchandise removed.

With respect to the latter ground George Ivey testified that he had contracted with respondents to deliver to them gasoline and fuel oil and that the fuel oil was to be paid for when delivered but was not paid for when so delivered.

The court found, and the evidence supports such findings, that the goods and merchandise sold to respondents were sold on open account and that the parties did not act under a contract that the goods and merchandise were to be paid for when delivered.

With respect to the judgment of the court allowing $100.00 to pay a part of the electrical bill for current used by respondents’ underground tanks by said Ivey, the facts show that Dee Myers contacted Ivey about the increased cost of the electrical bill caused by Ivey’s use of said pumps; that Ivey agreed to pay a part of such bills and Myers asked him if half of the amount of the bills would be reasonable and Ivey said he thought so. The testimony is that one-half of the bills was $251.45.

In the Memorandum judgment of the trial court he stated:

“On the issue concerning the attachment issued in this case the plaintiff offered evidence on two statutory grounds only, to-wit: That defendants had fraudulently concealed, removed or disposed of their property and effects so as to hinder and delay the plaintiff as a creditor, and that the defendants failed to pay the price or value of materials delivered which by contract they were bound to pay upon delivery. As to the first ground, the plaintiff proved that defendant Dee Myers withdrew the bank account of the Myers Derby Station from the First National Bank of Cam-denton, Missouri and deposited the amount of the withdrawal in the account of his wife and co-defendant in the Camden County Bank of Camdenton, Missouri. In my opinion there was no evidence of an intention to conceal the transaction and there was no evidence from which the Court might infer a fraudulent intent on the part of the defendants.
“Regarding the second ground for attachment, it is my opinion that since credit was extended to defendants and a running credit account was kept for a long period of time whereby the defendants were not required to pay according to any definite schedule the plaintiff’s proof is not sufficient to sustain this ground for attachment. Wherefore, the attachment is dissolved. * ⅜ ⅜»

It is the duty of this court in passing upon cases tried by the court to review the facts upon appeal as in suits of an equitable nature. It is our responsibility to make our own determination of facts' and where our examination of the evidence impels a conclusion that the lower court’s findings are clearly wrong we will not hesitate to make findings contrary to them. Cleary v. Cleary, Mo., 273 S.W.2d 340, Section 510.310 RSMo 1959, V.A.M.S. This section, in part, reads:

“ * * * ' The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

The first alleged error assigned by appellant is that the trial court erred in finding the issues on the attachment for the respondents and in dissolving the attachment because, under the admission of respondent, Dee Myers, he had fraudulently concealed and/or removed his property and effects so as to hinder and delay the appellant herein; and under the undisputed evidence of the appellant the respondents have failed to pay for the value of the fuel oil delivered to them when they had contracted to do so.

Appellant relies on Section 521.010[8], [13] RSMo 1959, V.A.M.S., and Mahner v. Linck, 70 Mo.App. 380 to support its contention under this alleged error.

Paragraph [8] of this section reads: “Where the defendant has fraudulently concealed, removed or disposed of his property or effects, so as to hinder or delay his creditors;”
Paragraph [13] reads: “Where the debtor has failed to pay the price or value of any article or thing delivered, which by contract, he was bound to pay upon the delivery

Mahner v. Linck, supra, involved a suit on a promissory note supported by attachment sued out against Linck. The eighth ground of attachment was that Linck had fraudulently concealed, removed and disposed of his property and effects so as to hinder and delay his creditors. The defendant filed a plea in abatement to the attachment and trial was had before a jury. The evidence substantially disclosed that on July 24, 1895, Mrs. Mahner called on Linck at his place of business and demanded payment of her note. Linck put her off until the next day by a promise to pay her. On the morning of the next day, without seeing her, defendant departed for the State of Iowa with friends for purposes of recreation. Linck had for several years deposited his funds with the Northwestern Savings Bank and, on July 24th, had an account of $445.00. On that day he withdrew the deposit and deposited $400.00 of it in the Jefferson Bank where he had not before made any deposits. He testified that he had contemplated making the change for some time previously but did not state the reason. The day before he departed for Iowa he wrote his wife a letter. In it he stated that he was leaving and she could see how she would get along with his business affairs; that she had better have claims of other creditors put off as long as possible; that it would be better for her and he stated: “I do not know how soon I can return as you can not keep your mouth shut as by your talking you have brought me to this, but for your own good you have to do the best you can, so good-bye to you and the children, kiss them for me.” He also stated he was gone now and she could do all the talking she wanted to. This letter was offered in evidence. The court stated that the transfer of the deposits from the Northwestern to the Jefferson Bank may have been for the purpose of concealing it from his creditors, at least it was a circumstance tending to prove a concealment of his property and this in connection with his other conduct warranted the court in giving an instruction to the jury to the effect that defendant had fraudulently concealed, removed or disposed of his property or effects so as to hinder or delay his creditors.

the instant case the facts are so different from the facts in the Mahner case that the authority does not justify ap-apcontention. It is elementary law that each case must be decided upon its particular facts. We think the trial court was justified in finding that there was no fraudulent conduct on the part of respond-respondin moving their bank account and, certainly, there was no evidence sufficient to sustain the first ground of attachment be-berespondents moved from the leased property.

There was evidence that George Ivey and respondents had long been friends and were well acquainted; that their business relations covered a period of two years; that Ivey had been selling gasoline and oil to operate the leased station during the entire business of the parties on open account and had never required payment when the goods were delivered. During this business relation respondents had given other checks as payment on account which were returned for insufficient funds. The evidence is that in the early part of October, respondent Dee Meyers gave a check to George Ivey, drawn on the Myers Derby Station account in the First National Bank for $553.25. Ivey’s records reveal that on October 13th he gave credit for the amount of this check on their account. On October 28th, the bank returned this check marked “insufficient funds”. The evidence is that nothing was done about the return of this check until December 5th, 1960, when George Ivey went to respondents’ place of business to see about the dishonored check and Myers gave to him another check on the same account, in the same bank for the same amount. At the time of the giving of this check the bank account in the name of Myers Derby Station had been moved to the Camden County Bank. This removal took place November 1st and the money was deposited principally in Mrs. Myers' personal account and the balance in Dee Myers’ account. The evidence is that there was insufficient funds in the Myers Derby Station account to pay the $553.25 check at the time the account was removed and at the time the first check was given; that on November 18, 1960, respondents purchased merchandise in the value of $5.00 from Ivey, November 17, 1960, merchandise of $1840.23 was sold by Ivey to respondents, December 5, 1960, $1,076.64 of merchandise was sold to respondents and on December 26, 1960, $219.34. The evidence also shows that respondents continued to make payments which were accepted and applied on their open account.

We find the great weight of the evidence in this case supports the finding of the trial court that appellant failed to prove that Dee Myers withdrew the bank account of the Myers Derby Station from the First National Bank and deposited same in the Camden County Bank with the intention to conceal the transaction. Fraud must be proved, it can never be presumed. Ellis v. Farmer, Mo., 287 S.W.2d 840, 851 [10]. The facts warranted the court in finding there was no fraudulent intent on the part of respondents.

Regarding the second ground of attachment appellant wholly failed to prove that the parties dealt with each other under a written contract which required the merchandise to be paid for upon delivery. The judgment of the trial court on the second ground of attachment is sustained.

The only serious question presented on this appeal is the action of the trial court in modifying its judgment allowing respondents $100.00 on their counterclaim for the payment of George Ivey’s part of the electrical hill incurred for the use of current for the benefit of Ivey. We think the testimony does show that there was an agreement between the parties that Ivey would pay one-half of the bills and there was testimony that from the date of this agreement these bills amounted to $251.45. We find there was ample evidence to support the finding of the trial court of an express agreement on the part of Ivey to pay one-half of the electrical bills. However, if there was any error on the part of the court it was against respondents and such error would not be reversible error.

Judgment of the trial court affirmed.

RUARIC, P. J., and STONE, J., concur.