author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

text:
    Mary Austin ROSE and Hugh Rose, Plaintiffs-Appellants, v. William B. MOORE and Barbara Boyce Moore, His Wife, and James Handy Moore and Dorothy Matthews Moore, His Wife, Defendants-Respondents.
    No. 50252.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      Blanton & Blanton, Sikeston, for plaintiffs-appellants.
    Ward & Reeves, Caruthersville, for defendants-respondents.
   HENRY J. WESTHUES, Special Commissioner.

On March 13, 1962, Mary Austin Rose and her husband, Hugh Rose, filed a petition seeking a partition of land located in Scott County, Missouri. The defendants named were William B. Moore and his wife, Barbara Boyce Moore, and James Handy Moore, and his wife, Dorothy Matthews Moore. The defendants filed an answer and counterclaim wherein it was alleged that previous to the filing of the partition suit the parties had entered into a written agreement to partition the land; that in reliance upon the agreement, the parties, plaintiffs and defendants, had taken possession of the land apportioned to them and had made improvements thereon. Defendants asked for specific enforcement of the agreement. In a second count of the counterclaim, defendants asked for a judgment for a portion of the expenses incurred in carrying out the partition agreement.

In a reply, plaintiffs set forth various reasons the agreement was not binding. The principal reason relied on was that the agreement had not been finally completed.

The trial court entered a judgment for the defendants and decreed specific performance. The court, on the second count, entered judgment against plaintiffs for $300.00. Motion for rehearing was overruled and plaintiffs appealed.

In their brief, respondents questioned the jurisdiction of this court on the theory that the sole question in dispute is the right to partition. We cannot agree. Respondents asked for specific performance and the court granted that request. The court decreed title to J4 of the land to be vested in Mrs. Mary Austin Rose and J4 iu James Handy Moore and William B. Moore. It is apparent that title to real estate is involved. Thus, jurisdiction is in this court.

The land in question, known as the “Sikeston Ridge” or the “Steve Hunter” farm contains, according to the decree of the trial court, “893.14 acres, more or less.” It is located about two miles north of Sikeston in Scott County, Missouri. We shall refer to it as the “Hunter Farm.” It was agreed that, upon the death of a great uncle in 1961, the plaintiff Mary Austin Rose and the defendants William B. Moore and James Handy Moore came into possession of the Hunter Farm as owners in fee. It was agreed that plaintiff Mary Austin Rose was the owner of a % undivided interest and the defendants, the Moore brothers, a 14 interest.

We shall refer to plaintiff as Mrs. Rose and to defendants as the Moore brothers.

Soon after Mrs. Rose and the Moore brothers became the owners of the Hunter Farm, they began negotiations in an effort to settle the estate between them. These negotiations resulted in a contract whereby it was agreed in substance that the land should be divided in two parts; that the larger part should be worth approximately three times the value of the smaller part. Mrs. Rose was to appoint a representative and the Moore brothers were to appoint a representative. These two were to agree on a third man who was to act in case the two could not agree. The division of the land as made by the “arbitrators” was to be binding on all parties. The agreement (Exhibit 1) further provided that:

“It is understood and agreed that neither party is seeking an advantage and that the parties hereto are seeking a fair, friendly and equitable division of the property which will best preserve the joint value.
■ “The parties hereto- agree to allow the arbitrators and the umpire free action in their deliberations, and to take no part in such deliberation unless requested to do so by mutual agreement of the two arbitrators.”

The agreement was signed by the parties on August 21,1961. Pursuant to that agreement, Mrs. Rose appointed James M. Wallace and the Moore brothers appointed Manuel Drumm, a lawyer. These two men, referred to in the agreement as “arbitrators,” selected Harvey Drake to act as “umpire” in case he was needed. He was not asked to perform any duty. Wallace had had much experience in land values. He was acquainted with the Hunter farm and had had many dealings with plaintiff and her father, Harry G. Austin, who prepared the agreement (Exhibit 1). Drumm, a lawyer, had represented the Moore brothers. He testified that he was “relatively inexperienced in the appraisal of farm lands.”

The evidence shows that the two arbitrators made a determined effort to do justice to all parties. They spent some time in valuating the various tracts of land. It was agreed by them that the Moores should have their share in the northern part of the tract and that Mrs. Rose, the southern y4 of the tract. Wallace testified as to the value of the land and the improvements thereon. He stated that the southern }4 was worth about $450 per acre, the north 1/4 about $400 per acre, and the middle portion about $425 per acre. He estimated the improvements on the southern y portion to be about $34,700 and on the north 14 about $3,000. So, it was agreed to give the Moore brothers in excess of the 14 of the acreage to make up for the difference in value. The arbitrators worked on the basis that the entire tract contained 862 acres of farm land. The documents used in connection with their calculations were an aerial photograph of the land, referred to in the evidence as Exhibit 6; a survey of the land, Exhibit A, made in January 1939, by Lyman Harrison and approved by R. L. Harrison,surveyor of Scott County, Missouri; and, of course, Exhibit 1, the contract or agreement signed by Mrs. Rose and the Moore brothers. Wallace and Drumm reduced to-writing their agreement as to the division-of the land. It is important to note its provisions so we set it out in Ml, as follows:

“MEMORANDUM
“September 12, 1961
“1. It is agreed that the Sikeston Ridge Farm may be divided into two parcels of which one parcel is to represent a one-fourth interest, which is the interest of J. Handy Moore and William Moore and the other parcel involved is to represent three-fourths interest and is the property of Mary Austin Rose.
“2. It is agreed that the property composing interest of J. Handy Moore and William Moore shall be as follows:
“(a) Said land shall lie generally at the-North end of said farm.
“(b) Beginning at the most Northwesterly corner of said farm and running thence South along the property line of said farm to a point where the West property line intersects with a fence, which will be identified as being the fence which runs along or through a grove of Black Locust trees; thence in a generally Easterly direction along said fence along the side or through said line of Black Locust treei to the Railroad right-of-way; thence South along the Easternly most line of said Railroad right-of-way for an unidentified distance, which said distance will be identified by the provisions of Paragraph 3; from the aforesaid point on said Railroad right-of-way line-Easterly along a line parallel to North property line to the West right-of-way line of Highway 61; thence Northerly along said Westerly right-of-way line of Highway 61 to a point immediately opposite the first land of this farm which lies East of said Highway 61 in the Northeast corner of said property; thence East along a country road as far as said Hunter property extends; thence Northerly to the extreme Northeast corner of said property; thence in a generally Westerly direction to the point of beginning along the Northern most boundary of said property.
“3. The boundary line between the East right of way line of the Railroad and the West right of way line of Highway 61 shall be straight and parallel to the North boundary line of said property, the exact location of said line is to be determined by Lyman Harrison so that said property line shall encompass and constitute a tract of land containing 248 acres. Reference is specifically made to an aerial photo bearing title Exhibit A and the signatures of Manuel Drumm and Jim Wallace on which in heavy red pencil are outlined the aforementioned described land, which is not intended as an exact legal description but as an attempt to describe on the aerial photo the division of the property hereinbefore set forth.
“4. It is agreed that all crop allotments from the Federal Government will be divided on same ratio as division of total ■acreage. By this it is meant that the 248 acres to go to Moore and Moore shall receive crop allotments in same ratio as the 248 acres is to the total acres of farm land.
“5. It is agreed that J. Handy Moore and William Moore will be entitled to the use of .all existing drainage ditches now connected with and touching said property.
“s/ Jim Wallace
“s/ Manuel Drumm”

Mr. Wallace testified that Exhibit 2, the Memorandum hereinabove set out, contain■ed the full agreement as to the division of the land. It may be noted that Exhibit 2, the award made by the parties’ representatives, was dated September 12, 1961; further, that the southern boundary of the land allotted to the Moore brothers between the Frisco Railroad right of way on the west and Highway 61 on the east had not been established; further, that the southern boundary line, according to Section 3 of Exhibit 2, should be established so that the northern portion of the farm, allotted to the Moore brothers, should contain 248 acres. It was provided that a survey establishing the south boundary was to be made by Lyman Harrison. Mrs. Rose and the Moore brothers were evidently satisfied with the division of the land and, as contemplated by Exhibit 2, Mrs. Rose entered into a “Farm Operating Contract” (on October 21, 1961) covering land referred to in the rental contract as “approximately 640 acres of the south part of Hunter Farm.” The crop acreage was determined to be 614 acres. The land was farmed in 1962 under the terms of that contract. It was in evidence that the Moore brothers took possession of the northern portion of the farm immediately after Exhibit 2, the agreement as to the division of the land, was signed whereby the northern portion was allocated to them.

Lyman Harrison, who had prepared a survey in 1939 as shown by a blueprint, Exhibit A, was selected by Wallace and Drumm to establish the south boundary line of the land awarded to the Moore brothers. He received instructions from Wallace and Drumm which are noted in the following evidence:

“Q Will you tell the Court what those instructions were and by whom made?
“A Mr. Drumm told me that I was supposed to cut off so many acres off of the north end of the farm, all farm land, cultivatable land, totaling so many acres, I don’t know the total on that offhand.
“Q What instructions, if any, did you receive from Jim Wallace?
“A Jim came up and asked me if I had been contacted by Mr. Drumm and if I was going to go to work and I told him I had, and I got practically the same instructions from him.
“Q The same instructions. Then did you go out on this land and start surveying?
“A I did.”

Lyman Harrison began a survey. One day while working on the project, Harrison was approached by one of the Moore brothers who was passing along the road and had noticed Harrison surveying. Mr. Moore went to Harrison and asked about the survey. What occurred is immaterial except that the result was that Harrison refused to do any more work on the survey and destroyed his notes. This occurred in late October or early November. It is noteworthy that it occurred after Mrs. Rose and the Moore brothers had taken possession of the land as roughly allotted to them. The only thing that had not been completed was the establishment of the southern boundary line of the Moore tract of land. Some effort was made to have Harrison complete his survey without success. Wallace thereupon notified the parties that he was resigning as an arbitrator and thereafter performed no act in connection with the partition.

After Harrison had refused to complete the survey, Drumm employed Alex C. Waters to make a survey and establish a boundary line at the south of the tract allotted to the Moore brothers. The survey, marked Exhibit 5, made in November, 1961, was introduced in evidence. It shows, and it was admitted, that the land allotted to the Moore brothers is traversed north to south by the Frisco Railroad tracks and U. S. Highway 61. There is also an east-west county road along the north boundary of the tract. Waters testified that in making the survey he used Exhibit A, the survey and blueprint made by Harrison in 1939, the aerial map, Exhibit 6, the contract, Exhibit 1, and Exhibit 2 which showed the apportionment of the land by Drumm and Wallace. Waters testified that he received oral instructions about making the survey from Drumm and the Moore brothers. He did not consult with Mrs. Rose. This survey made by Waters shows, and Waters so testified, that it encompasses 248 acres of crop land. He stated that in arriving at 248 acres he excluded all land occupied by the Frisco Railroad, the county road, U. S. Highway 61, as well as a small patch of brush land containing about 2 acres.

As noted above, the partition suit was filed on March 13, 1962. On March 22, 1962, Lyman Harrison made the following notation on Exhibit 5, the Waters survey: “This is to certify that I have checked the land represented by this plat, in the field and all computations and find there is 248.67 acres Crop land.” Mr. Harrison testified that the Moore brothers came to him and informed him that they could get the partition of the land settled “if I could verify the acreage of Mr. Waters.”

Harry G. Austin, father of plaintiff Mrs. Rose, was the only witness called by her. He testified that he was the author of the contract, Exhibit 1, providing for a division of the land. He stated that he had had much experience in arbitration agreements in the insurance business. This evidently accounts for the fact that Exhibit 1 was entitled “Arbitration Agreement for Partition of Sikeston Ridge Farm.” He testified that in 1961 he urged Harrison to complete the survey and that he voiced no objection to the division of the farm as made by Wallace and Drumm before January 1, 1962. Austin testified that the valuation placed on the buildings by Wallace was excessive. In his opinion, the buildings on the south were not worth in excess of $15,000 for farm purposes, tie also voiced objection to the survey made by Waters. He claimed that the Waters survey would give the Moore brothers 10 to 15 acres more than contemplated by the award of 248 acres made by Wallace and Drumm. In other words, he claimed that the Moore brothers would be allotted about 260 acres or more.

Mrs. Rose was called as a witness for the defendants. She stated that she was not satisfied with the division as made and evidenced by Exhibit 2. However, she stated that she made no objection to it during 1961 to either Wallace or the Moore brothers. Note her evidence:

“Q Did you tell the Moore brothers that it wasn’t fair?
“A No.
“Q At that point were you willing to go along with it?
“A Yes, we would have gone along with it, if the agreement had been concluded.
“Q Now, you say if the agreement had been concluded, now, what part of the agreement, Mrs. Rose, was not concluded ?
“A The survey was not completed by the surveyor the two arbitrators had selected.”

Mrs. Rose admitted having received a detailed account of the division as made by Wallace and Drumm (designated as Exhibit 4). This dated September 21, 1961, reads as follows:

After receiving the above detailed account, Mrs. Rose on October 21, 1961, entered into a farm operating contract covering land allotted to her. In this contract, it is stated that the tract contained approximately 640 acres; further, that the total acreage in the Hunter Farm was 893.14 acres. The contract also specified the number of acres that were to be planted in various crops. Such acres totaled 614 including 21 acres being occupied by buildings and lots. This 614 acres and the 248 acres allotted to the Moore brothers add up to 862 acres which is the figure used in Exhibit 4 as a basis for a division of the land.

In the survey made by Waters showing 248 acres, the ground occupied by buildings was not excluded. It is obvious that Wallace and Drumm apportioned the land to plaintiff and the Moore brothers on the basis of crop land. Exhibit 4, which Mrs. Rose received prior to the time she entered into a rental contract, plainly so shows.

Lyman Harrison who was first engaged to establish the southern boundary line certified that the Waters survey was correct.

In the circumstances as above outlined, a court of equity was justified in decreeing specific performance. Gonzalez v. Gonzalez, 174 Cal. 588, 163 P. 993. The fact that the parties with ¿nil knowledge of the facts entered into posnession of the land and made improvements in accordance with the division made by the arbitrators es-topped the parties from pleading certain defenses against specific performance. 68 C.J.S. Partition § 12, page 17. See also 81 C.J.S. Specific Performance § 61, pp. 554 — 556. On page 556, under “Partition agreement,” the following appears: “The taking of possession, by a party to an oral contract for the partition of land, of the tract or portion thereof allotted to him has been held to authorize the specific performance of the contract, on the ground that the relinquishment of the balance of the property is a sufficient consideration, * * Among cases there cited is Cave v. Wells, 319 Mo. 930, 5 S.W.2d 636.

We shall consider briefly the contentions made by Mrs. Rose claiming that the apportionment of the land between her and the Moore brothers should not be enforced. It is said that the arbitrators did not take an oath as required by Sec. 435.030, V.A.M.S. If an oath was required, the requirement was waived when the parties with knowledge of all the facts took possession of the land allotted to them. See cases cited’ under Note 6 of the above section.

Mrs. Rose says that the contract,. Exhibit 1, and the allocation made by the arbitrators’ Exhibit 2 are not binding because the surveyor who was selected to-make a complete survey refused to do so. We do not agree. The parties agreed that, the contract, Exhibit 1, should be binding on. all parties. The arbitrators, by Exhibit 2,. made a complete division of the land. It. was only necessary to establish the south, boundary which could be made certain by any surveyor by following the directions-contained in Exhibit 2. Exhibit 4, furnished to Mrs. Rose, outlined in detail just what, portion of the land was allotted to the parties. We rule that the division as made was-binding on Mrs. Rose as well as on the-Moore brothers. Such contracts have been upheld by the courts. Johnston v. Johnston, 37 Ga.App. 788, 141 S.E. 924; Gonzalez v. Gonzalez, 174 Cal. 588, 163 P. 993, 1. c. 998-(10).

Mrs. Rose says that the resignation of Wallace as arbitrator had the effect of revoking the arbitration agreement; further, that the filing of the partition suit had that effect. Had these events occurred prior to the time that the arbitrators completed their work, such contentions might have had some merit. However, in this case, the arbitrators had fully completed making a division of the land. Nothing more was necessary to be done except for a surveyor to establish, the dividing line which could be, and was, done in accordance with the directions contained in Exhibit 2. Mrs. Rose and the Moores so treated the partition as completed by taking possession of their respective portions. The resignation of Wallace after the division had been made did not affect the partition agreed upon by Wallace and Drumm. 68 C.J.S. Partition, § 12, pages 17, 18.

In the brief prepared for Mrs. Rose, it is said that the decree of the court as written leaves the title to that portion of the north part of the tract underlying the roadway and the Frisco Railroad tracks undistributed; that the title thereto was not-disposed of by the decree. As we read the description of the land awarded to the Moore brothers by the decree, it clearly included all of the Hunter Farm lying north of the township line and it is this land that is crossed by the railroad tracks and U. S. Highway 61. The tract north of this township line, as described in the decree, contains over 190 acres and included therein is the land underlying the roadways and the railroad tracks. That portion of the land south of the township line is bounded on the east by U. S. Highway 61 and on the west by the Frisco tracks. It is not traversed by either the roadway or the railroad tracks.

The concluding statement in the decree of the description of land allotted to the Moore brothers, “containing in all 248.00 acres more or less,” is not accurate since it is evident that the total acreage allotted to them by the decree is more than 248 acres. Likewise, the acreage allotted to Mrs. Rose by the decree is more than 614 acres. It is stated in the decree that the total acreage of the Hunter Farm is 893.14 acres which clearly indicates that all of the land was included in the decree.

We have considered and reviewed the evidence fully and find that the decree of the trial court decreeing specific performance was proper and in accordance with justice and the law.

In view of the fact that the judgment on the first count is for respondents, it follows that the cost of the survey which was paid for by the Moore brothers should be shared by Mrs. Rose.

The judgment and decree of the trial court on both counts are hereby affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: COIL, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Raymond Earl McCOLLUM, Appellant.
    No. 50144.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Julian L. O’Malley, Asst. Atty. Gen., Jefferson City, for respondent.
   COIL, Commissioner.

A jury convicted Raymond McCollum of second degree burglary and of stealing property of a value of at least $50, and the trial judge found defendant had been priorly convicted of two felonies as charged in the amended information, and sentenced him to the state penitentiary for consecutive sentences of five years for burglary and five years for stealing. See Sections 560.045, 560.156, 560.160, 560.095, 560.110, and 556.-280, RSMo 1959 and V.A.M.S. McCollum appealed but has filed no brief. We shall examine the twenty-three assignments of error in his motion for new trial.

The first is that the amended information failed to charge the commission of a crime for the alleged reason that it did not aver what goods, wares, merchandise, and other valuable things had been stolen, the owner of the property which was alleged to have been taken, or the person who was alleged to have stolen that property. There is no merit in the contention because the amended information specifically charges that a television and a sewing machine were stolen from the residence of and were the property of one Jack Toliver and that defendant stole that property.

Assignments 2 and 11 charge, in effect, that the state failed to make a sub-missible case of second degree burglary and of stealing property of a value of at least $50. In determining that question, we consider the evidence from a standpoint favorable to the state and disregard evidence and inferences to the contrary. State v. Watson, Mo., 350 S.W.2d 763, 766[1]. So considered, the evidence tended to show that on November 4, 1962, Jack Toliver and his family resided in a house in Independence, Missouri; that he and his family departed in the evening of November 3 to visit in Marshall, Missouri, and left the house doors locked and its windows closed; that Toliver was notified the next morning that his house had been broken into and he returned to his home early that afternoon and, upon examination, found that there were several items of personal property missing, including a television worth $200 and a sewing machine worth $100; that later that same day at Sugar Creek Police Headquarters Toliver identified the television, sewing machine, and other property as those items which had been taken from his home; that Toliver had given permission to no one to enter his home or to take any articles therefrom. The evidence showed further that a police officer early in the morning of November 4 observed an Oldsmobile exceeding the speed limit and pursued it through several turns and until it stopped in front of a house. Harold Crump was driving the automobile and defendant and Everett Oringderff were passengers. After arresting Crump for careless and reckless driving and permitting defendant and Oringderff to depart, the officer went to the Oldsmobile to obtain some information from its city license sticker and observed various articles of property in the back seat, including a television which later was identified as the one taken from the Toliver residence. The officer listed the articles found in the automobile and those were 'later identified by Mr. Toliver as the •property which had been taken from his home. The evidence was further that defendant made a written confession in which he admitted that early in the morning of November 4 he, .Crump, and Oringderff went to the Toliver home; that he removed the screen from the back window, opened the window, and helped Crump through it; that Crump opened the back door and Or-ingderff entered the house while defendant remained outside as lookout; that Crump and Oringderff brought many articles out of the house, including a television which, with defendant’s assistance, was placed in the Oldsmobile along with the other articles ; that the three proceeded in the Oldsmobile to Oringderff’s mother’s house and, after stopping there, Crump was arrested; that defendant and Oringderff left and went to the basement of the home of Or-ingderff’s sister where they stayed until that afternoon; and that defendant thought they (Crump, Oringderff, and defendant) were going to sell the articles that had been stolen.

It is clear that the state made a sub-missible case of burglary in the second degree and stealing. There was abundant evidence that defendant broke into and entered a dwelling house where there was no human being present at the time, with an intent to steal, Section 560.045, supra, and that defendant exercised dominion over property belonging to Mr. Toliver inconsistent with Mr. Toliver’s rights by taking the same. Section 560.156, supra.

Defendant introduced the complaint and information in the case of State v. Crump, each of which charged that the same property as that involved in this case was stolen on October 4, 1962. Defendant contends that such evidence made the state’s testimony in this case so conflicting as to be of no probative value. The state adduced evidence from which the jury reasonably could have found that the October date in the Crump complaint and information was a typographical error and that the property had been taken on November 4, 1962, as charged in the present information. In any event, the discrepancy between the Crump records and the records and testimony in the present case went to the weight of the evidence in this case and had no decisive effect upon the question whether there was a submissible case.

New trial assignments 3 through 10 charge the erroneous admission of evidence.

Assignment 3 avers that the trial court erred in permitting a police officer to read from his written report which had not been offered or received in evidence. The record shows that the police officer answered that he had received a call at a certain time on November 4 from a dispatcher and had proceeded to the Toliver residence, whereupon defendant objected that the officer was reading from his report. The trial court by questions established that the paper the witness had was his report and that he was refreshing his memory from that report. The court overruled the objection and, out of the hearing of the jury, defendant’s counsel asked that the record show that the witness was reading from the report and not using it to refresh his recollection. The court stated that such was not the fact and the questioning proceeded without further objection. Thus it appears that the trial judge determined as a fact that the report in question was used to refresh the witness’s recollection, and the new trial averment to the contrary does not prove itself.

Assignment 4 charges the trial court with error in admitting state’s exhibit 1, a photograph of the rear of the Toliver residence, for the stated reason that it did not purport to constitute a picture of the rear of that residence as it appeared after the alleged burglary and stealing and thus was not a fair representation of the scene. The next-door neighbor testified that the picture represented the condition of the rear of the Toliver residence as it existed at approximately 7:45 in the morning of November 4 in so far as the picture showed the back window open and the window screen on the ground beneath the window and showed the back screen door open but that, contrary to the picture, the back door was also open so one could look in and see the stove. Such testimony was sufficient identification of the exhibit. The photograph tended to aid the jury in understanding the testimony with respect to the condition of the rear of the Toliver residence on the same day and shortly after the alleged burglary and stealing had occurred. See State v. Brown, Mo., 312 S.W. 2d 818, 822 [3-7].

New trial assignment 5 avers that the trial court erred in admitting state’s exhibit 7 which purported to be a list of the items of property stolen from the Toliver residence on the ground that the information appearing on the exhibit amounted to hearsay in that it was a record of what Mr. Toliver or other persons had stated out of the presence and hearing of the defendant; that no proper foundation had been laid to show that the exhibit was admissible as a business record; and that there was no evidence to show that the person who prepared the list had personal knowledge of the information he recorded. The police officer who arrested Crump for speeding, under the circumstances noted in the above statement of facts, testified that page 2 of Exhibit 7 (as originally offered) was a list of the articles “that we removed from the car.” After objection by defendant, the state withdrew the first page of the report and only the second page was remarked as state’s Exhibit 7. The court admitted the exhibit in evidence. The arresting officer testified that he had found the articles listed on Exhibit 7 in the back seat and trunk of the car driven by Crump, and it was clear that those articles were in the automobile at the time the three persons, including defendant, were occupants of it. Mr. Toliver had theretofore testified that the articles found in the car driven by Crump, including the television and sewing machine, belonged to him and were returned to him by the police. The inference was reasonable that a list of the missing articles which Toliver had theretofore given to the police was a list of the same items or at least a portion of the same items "which were listed on state's Exhibit 7. The trial court did not err in admitting state’s Exhibit 7. See State v. McBride, Mo., 366 S.W.2d 374, 378 [7].

New trial assignments 6 and 7 will be considered together. Assignment 6 charges error in admitting a document written in longhand which purported to be a confession of defendant, and assignment 7 assigns error in admitting state’s Exhibit 9 which was a typed copy of state’s Exhibit 8, for the reasons that the state failed to show that the statement was voluntarily made after defendant had been advised of his constitutional rights and, in the case of Exhibit 9, for the additional reason that it was “a carbon copy of an original document and not the best evidence.”

The record shows that when a police officer testified that defendant had made a statement to him which had been reduced to writing, defendant, out of the hearing of the jury, stated that the alleged confession was not voluntary and upon request the court held a hearing out of the presence of the jury on that issue. The state adduced evidence that the initials on the first and second pages of both the written and typed statements were placed there by defendant and that the signature on the third page of each was defendant’s; that prior to obtaining the statement the officer had advised defendant that he did not need to answer any questions and that anything he did say “would be used against him”; that defendant had been arrested by the Kansas City police on November 13, held there overnight, picked up by the Independence police at the Kansas City jail the next day, and that thereafter the witness and another officer questioned defendant that afternoon for perhaps two hours; that defendant did not request an attorney and the officer did not mention anything about an attorney; that he, the officer, told defendant “we had enough evidence on Mr. Crump involving Mr. McCollum” and they had “a good case against him in court,” but they made no promises to defendant. The Independence police kept defendant overnight and the two officers interrogated him again the next morning and about noon the longhand statement was written by the witness in the language of the defendant. The witness denied that the officer who was with him made any statement to the effect that if defendant did not sign, he was going to “lean on him.”

Defendant’s testimony was that the officers indicated if he didn’t make a statement they would “lean on him” and that one of the officers had the reputation for having so done on other occasions; that the officers didn’t tell him that he could make or not make a statement, or that it could be used against him in court, or that he had a right to an attorney. The court questioned defendant and established that he was 28, had a sixth grade education, worked as a machine operator, had been convicted of burglary three times prior to the present charge, had been confined in Algoa the first time and in the penitentiary as a result of the other two convictions; that neither officer physically touched him. Upon the completion of the hearing, the court overruled defendant’s motion that the statements be excluded on the ground that the state had not proved they were voluntary; whereupon the officer’s examination was resumed in the presence of the jury and his testimony concerning the taking of the statement was substantially the same as that given by him at the hearing out of the presence of the jury.

It appears that the evidence adduced on the voluntariness of the confession was sufficient to permit the jury to find that the longhand confession and typed copy thereof (they were identical except for some formal parts in the typed copy which did not change the substance) were voluntary. Indeed, defendant’s own testimony was scarcely sufficient to raise any real issue as to voluntariness, and his testimony was not repeated before the jury. That is to say, the defendant did not take the stand other than at the hearing conducted outside the presence of the jury. Furthermore, the fact that defendant was not informed that he had a right to counsel did not make the confession involuntary. State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523, 526 [11, 12], It is further apparent that both the longhand and the typed copies of the confession were originals and that each was read by and duly signed by the defendant.

Assignment 8 charges the trial court erred in permitting a police officer to testify as to a statement made by Oring-derff following the arrest of Crump, allegedly out of the presence and hearing of defendant, to the effect that “they (meaning Oringderff, Crump, and defendant) had been working” on the ground that such statement was hearsay. The record, contrary to defendant’s contention, shows that the statement was made in the presence of the defendant.

New trial assignment 9 is that the trial court erred in overruling defendant’s motion to instruct the jury to disregard certain evidence and in refusing to declare a mistrial because of the admission thereof. The evidence set out in the motion for new trial is this question and answer contained in the direct examination of a police officer: “Q What did you do after you spoke to Crump? A Based on what he told me I went around to see Oringderff’s mother * * * ‘to see if the television set belonged to that lady as the man had stated to me.’ ” The reasons assigned for the erroneous ruling are that the answer was not responsive and was hearsay in that it was allegedly made by Crump out of the presence and hearing of defendant. The record does not support the assignment as made. The transcript shows that the police officer who arrested Crump testified as above set forth. Upon objection that the answer was not responsive and a motion that it be stricken and the jury instructed to disregard it, a colloquy occurred out of the hearing of the jury during which the court indicated that until the state had evidence that Crump, Oringderff, and defendant were acting together he would not permit questions as to conversations between the arresting officer and Crump. Defendant’s counsel asked “the court to rule on our motion to discharge the jury” (no such motion had been made) and the court overruled “the motion to discharge the jury,” whereupon the questioning of the arresting officer proceeded. While it is true that the court never did instruct the jury to disregard the answer given, it is also true that as a result of the colloquy the court indicated that it was ruling favorably as to defendant’s contention that the conversations at that point between the arresting officer and Crump were not admissible, and no conversation had been related. The only relief asked at the end of the colloquy was that the court sustain a motion to discharge which had not been made and, even if it had, it is clear that the answer made by the officer was not improper and, in any event, the trial court did not abuse its discretion in refusing to discharge the jury.

Assignment 10 charges the court with error in admitting this answer to the following question: “Q Did McCollum tell you anything about it? A * * * the next morning * * * he admitted the burglary * * and in denying defendant’s motion to discharge the jury for the stated reasons that such answer was not responsive, was a conclusion, and so prejudicial that it could not be cured by an instruction to the jury to disregard it. The transcript shows that when the police officer, who obtained defendant’s confession, was being questioned with respect to the statement made to him by defendant, he said that he told the defendant that he (the defendant) didn’t need to say anything; that he (the officer) couldn’t compel him to do so but that he was going to question him with respect to a certain charge that “he was in for * * Whereupon, the question and answer set forth above was asked and made. The c'ourt sustained defendant’s objection that the answer was not responsive and instructed the jury to disregard it. The motion was then made that the answet be stricken and, out of the hearing of the jury, the further motion that the jury be discharged because the statement was highly prejudicial. Whereupon, in the hearing of the jury, the court overruled the motion to discharge and again instructed the jury “to disregard the last statement of the witness.” We hold that the trial court did not abuse its discretion in refusing to declare a mistrial. See State v. Allen, Mo., 343 S.W.2d 63, 66. In any event, defendant could not have been prejudiced because the conclusion or fact stated in the above answer was established, not only by the later testimony of the same witness, but by the written confession of the defendant.

New trial assignments 12 through IS pertain to instructions given at the request of the state and assignments 16 through 19 relate to instructions offered by defendant and refused.

Assignment 12 is that the court erred in giving instruction 2 because there was no evidence that defendant entered the Toliver residence and because the instruction failed to hypothesize facts from which the jury could have found that the acts of Crump and Oringderff in entering the Toliver residence were the acts of the defendant. There is no merit in the contention. Defendant’s confession, in evidence, related that he removed the screen from the kitchen window and helped Crump through the window; that Oringderff entered through the back door which was opened by Crump, and that he, defendant, stayed outside as lookout; that he helped load the television in the back seat of the Oldsmobile; that all three left in that automobile and defendant thought they were going to sell the articles which were taken from the Toliver residence. While instruction 2 does not in itself make the acts of Crump and Oringderff the acts of defendant, instruction 6 told the jury that when a crime is committed by two or more persons jointly, whatever either does in the furtherance of the unlawful act is the act of each. (See discussion under assignment 15, infra.)

Assignments 13 and 14 are that the court erred in giving instructions 3 and 4 on behalf of the state for the reasons, among others, that the amended information charged defendant with stealing a television and a sewing machine, the property of Jack Toliver, and instruction 3 and 4 each permitted the jury to find defendant guilty of stealing by finding that he stole any property belonging to Jack Toliver. This contention as to those instructions is well taken and under our recent case of State v. McBride, supra, 366 S.W.2d 379 [8], constitutes reversible error as to defendant’s conviction for the crime of stealing. Instruction 3, after hypothesizing that defendant broke into and entered the residence of Jack Toliver, continued as follows : “ * * * the defendant feloniously and intentionally did steal property of any value the property of the said Jack Toliver, without the consent of the said Jack Toliver with intent to permanently deprive the said Jack Toliver of said property, with felonious intent to convert the same to his own use without any honest claim to said property, if such be your finding, then you will find the defendant guilty of Stealing and so find in your verdict.”

Instruction 4 directed the jury that if it found McCollum not guilty of burglary in the second degree it could not find him guilty of stealing as defined in instruction 3; but that if the .jury believed beyond a reasonable doubt that “on the 4th day of November, 1962, the defendant herein, RAYMOND EARL McCOLLUM, did then and there unlawfully, feloniously and intentionally steal property of Over the Value of $50.00, the property of Jack Toli-ver, located at 222 North Ash, Independence, Jackson County, Missouri, with the intent to permanently deprive the owner of said property, and with felonious intent to convert the same to his own use without any honest claim to said property and without the consent of the said Jack Toliver, if such be your finding, then you will find the defendant guilty of Stealing Over $50.-00, and so find in your verdict”

Instructions 2, which submitted burglary-only, and 3 and 4 were the only verdict-directing instructions and no other instruction required a finding that McCollum stole the television and the sewing machine as charged in the information. The amended information charged that McCollum on November 4, 1962, stole “One (1) television set of the value of Two Hundred and no/100 ($200.00) Dollars, and One (1) Sewing machine of the value of One Hundred Fifty and no/100 ($150.00) Dollars; of the goods and property of Jack Toliver in said building then and there being found, * * The evidence, heretofore stated, was that many items of personalty in addition to the television and sewing machine were taken from the Toliver residence.

The question here is identical with that considered in the McBride case, supra. We quote from that case:

“We are confronted, however, with defendant’s further contention that the court erred in failing to instruct the jury that it was required to find that defendant stole any of the property described in the information before it could convict him of stealing. The contention must be sustained. The transcript shows that the court, by instruction No. 2, submitted the issue of burglary in the second degree with the intent to steal ‘personal property of any kind and of some value, however small’ kept in said shop. By instruction No. 3, the jury was directed that if it found defendant guilty of burglary as defined and explained in instruction No. 2 and ‘that after breaking into and entering said building the defendant, either acting alone or jointly with another or others, took and carried away from and out of said building, goods, wares, merchandise and personal property * *; and * * * took said goods, wares, merchandise and personal property, with the felonious intent at the time to steal same, then you will find the defendant guilty of stealing in connection with said burglary in the second degree, and so say in your verdict; * * *.’ The mere reading of the instruction shows that it authorized a verdict finding defendant guilty of the felony of stealing committed in connection with the burglary if the jury found that he (either acting alone or with another) stole any of the personal property kept in said shop, irrespective of whether the jury found defendant had stolen any of the four items alleged in the information to have been stolen. In other words, to illustrate, the instruction authorized conviction of defendant if it found that he stole any of the clothing (of which there was highly substantial evidence), despite the fact that the information did not charge him with stealing clothing, or despite the fact that the jury may not have found beyond a reasonable doubt that he stole any of the items described in the information. In so instructing the jury, the trial court committed error prejudicial to defendant. State v. McGraw, 74 Mo. 573, 574; State v. Shapiro, 216 Mo. 359, 115 S.W. 1022, 1026; State v. Jones, Mo., 227 S.W.2d 713, 717 [8], Consequently, the judgment convicting defendant of stealing in connection with commission of the burglary must be reversed and the charge of stealing remanded.” State v. McBride, supra, 366 S.W.2d 379 [8].

Assignment 15 is that the court erred in giving instruction 6 which, as heretofore noted, told the jury that persons are equally guilty who act together with a common intent in the commission of a crime and that whatever either does in furtherance of the unlawful act is the act of each. The objection is that the instruction is abstract in form and does not hypothesize facts authorizing a finding of the jury that the acts of a third person were the acts of defendant. Our statement of the evidence demonstrates that there was substantial evidence to support the propositions that Crump, Oringderff, and defendant acted jointly with a common intent to commit and committed second degree burglary and stole Toliver’s property of the value of at least $50 and thus instruction 6 correctly told the jury that under such circumstances the act and deed of either was the act and deed of each. While it would have been preferable for instructions 2, 3, and 4 to have referred to joint action by some expression such as defendant acting jointly with others with a common intent, etc., nevertheless, instructions 2, 3, and 4, read with instruction 6, sufficiently covered the matter of the joint commission of the crimes charged, and thus it was not essential, upon this record, that instruction 2, 3, or 4 hypothesize a specific finding that defendant acted with others jointly with a common intent. State v. Washington, Mo., 364 S.W.2d 572, 575 [6-9], And see State v. Price, Mo., 362 S.W.2d 608, 611 [4],

New trial assignment 16 avers that the trial court erred in refusing to give instruction 12 which told the jury that the opening statement of a prosecutor was not to be considered as evidence. The pertinent reasons stated in the assignment are that the subject matter was appropriate and necessary for the information of the jury, was not covered by any other instruction and therefore, upon request, defendant was entitled to the instruction. The proffered instruction was cautionary in nature, but, even so, it was in proper form and perhaps should have been given under the law as stated in State v. Chaney, Mo., 349 S.W.2d 238. In this case, however, the prosecutor’s opening statement is not contained in the record and there is no attempt to indicate or demonstrate in the motion for new trial the manner in which it is claimed defendant was prejudiced by the refusal of the instruction. Under those circumstances we hold that the failure of the trial court to have given the instruction was not reversible error.

Assignment 17 charges that the trial court erred in refusing to give instruction 13 which dealt with the fact that defendant was presumed to be innocent of the crime charged. The only pertinent reason stated is that the matter was not fully covered in other instructions given and that given instruction 5 failed to define “reasonable doubt” whereas proffered instruction 13 did define that term. The record shows that given instruction 5 was a proper instruction covering the subject of the presumption of the defendant’s innocence and properly defined “reasonable doubt.”

Assignment 18 charges the trial court erred in refusing instruction 14 which was on the subject of reasonable doubt. As we have said above, given instruction 5 sufficiently covered the subject of reasonable doubt and thus the trial court did not err in refusing an additional instruction. State v. Messley, Mo., 366 S.W.2d 390, 395 [14],

Assignment 19 avers that the trial court erred in refusing instruction 15 which dealt with the subject whether the defendant’s statement was voluntarily made. Defendant avers that the matter is part of the law of the case, that it was appropriate in this case, necessary, and not covered by another instruction. The court gave instruction 7 which told the jury that if it found that defendant did make a voluntary statement as to the offense charged after it was alleged to have been committed, the jury must consider such statement, if any, in the light of the circumstances under which it was made, if it believed it was made and, further, that if the jury believed any such statement was not voluntary, then the statement should be disregarded entirely. Upon this record, instruction 7 was sufficient. The portion of proffered instruction 15 pertaining to whether the statement was procured “by coercion, threats or through fear, and that but for such coercion, threats or fear, such defendant would not have made such statements, then you are instructed to disregard such statement as evidence in the case,” was not supported by any evidence before the jury. There were no facts in evidence supporting such a submission, even assuming arguendo that defendant’s testimony before the court out of the hearing of the jury amounted to some evidence of coercion, threats, or placing in fear. That is because such evidence was not repeated from the witness stand in the presence of the jury and, consequently, there was no evidence to support the hypotheses of proffered instruction IS.

Assignment 20 asserts that the evidence was “so weak, contradictory and conflicting as to raise a necessary inference that the verdict is the result of bias, passion and prejudice.” Our statement of facts heretofore demonstrates that the evidence was neither weak, contradictory, nor conflicting.

Assignment 23 avers that the sentence as assessed by the court is excessive. We need not consider this assignment because the case must be reversed and remanded as to the conviction for stealing. We observe in passing, however, that the sentence was within the limits prescribed by law for a habitual criminal convicted of second degree burglary and stealing. See §§ 560.-095, 560.110, 556.280, supra.

Assignments 21 and 22, alleging that the verdict is against and contrary to the evidence and to the weight of the evidence, and to the law and the evidence, and contrary to the instructions of the court, and not responsive to the issues or to the evidence, are too general to have preserved any matter for appellate review, in that none is sufficient under the requirement of C.R. 27.20, V.A.M.R., that a motion for new trial must set forth in detail and with particularity specific grounds or causes therefor.

We have examined those record matters which we are required to review and find no prejudicial error in connection with them.

The judgment of conviction of the defendant for the crime of burglary in the second degree is affirmed. The judgment of conviction of the defendant for stealing in connection with the commission of the aforesaid burglary is reversed and the charge of stealing, as set forth in the amended information or in any amendment thereof, is remanded for further proceedings in accordance with the views herein expressed.

• HOUSER and WELBORN, CC., concur

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner. PER CURIAM.

text:
    Paul STUESSE, Respondent, v. Florentine STUESSE, Executrix of the Estate of Henry Stuesse, deceased, Donald Stuesse, Florentine Stuesse, Irene Weigel, Enrica (Ernica) Stuesse, August Stuesse and Charles E. Hansen, Administrator ad litem of the Estate of Henry Stuesse, deceased, Appellants.
    No. 50168.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      Leo A. Politte, Washington, Charles P. Moll, Union, for appellants.
    John H. Mittendorf, Union, for respondent.
   BARRETT, Commissioner.

This is a suit to construe the will of Henry Stuesse. The plaintiff is Henry Stuesse’s son Paul and the defendants are his executrix, .his other son August, his grandson Donald (son of August) and his daughters Florentine, Irene and Ernica (now Sister Mary). The daughters are specific legatees and by item 9 of the will two of the daughters, the appellants Irene and Florentine, are residuary beneficiaries. August’s son Donald and the plaintiff Paul, after the death of their mother, are beneficiaries of specific devises. Paul’s suit alleged that there were uncertainties, ambiguities and conflicting provisions and therefore he sought judicial construction of his father’s will. The court found for the plaintiff and accordingly entered a decree so construing the will as to award him, rather than the residuary beneficiary appellant-sisters, 47 acres of land which in fact are the subject matter of this litigation.

It is necessary to an understanding of the issues to set forth the substance of Henry Stuesse’s will (italicizing for emphasis and future reference certain words and phrases). In item 3 he bequeathed to his daughter Ernica (now Sister Mary) $500 “in full of her share of my estate.” In item 4 he bequeathed to his daughter Florentine $2,000 “in full of her share of my estate.” And in item 5 he bequeathed to his third dattghter Irene $2,000 “in full of her share of my estate.” Item 6 gave his wife a life estate in “my home farm in Sections Eight (8), Nine (P), Sixteen (16) and Seventeen (17),” township 42, range 2 west in Franklin County. Item 9 is the residuary clause and there the testator devised and bequeathed “(a) 11 the rest, residue and remainder of my estate, real, personal and mixed” to his daughters Irene and Florentine, and in item 10 his wife and Florentine were designated as executrices. These items of the will are significant and the appellant daughters rely on item 9, the residuary clause, but items 7 and 8, particularly item 7, providing for the sons and grandson are the crux of the litigation. In item 7 the testator devised and bequeathed to his respondent son Paul “that portion of my home farm in Sections Eight (8), Nine (P), Sixteen (16) and Seventeen (17) * * * which lies to the North and West of a dividing line as surveyed by Edwin F. Kap- pclmann, Deputy County Surveyor, on the 15th day of November, 1949, and recorded * * * upon condition that he pay into my estate, within one year of my death” $1,000, the sum advanced for “schooling” at Central College. In item 8 the testator gave and bequeathed to his grandson Donald, son of August, "the remaining part of my home farm in said Sections Eight (8), Nina (9), Sixteen (16) and Seventeen (17) * * * which lies South and East of a dividing line as surveyed by Edwin F. Kap-pclmanri’ upon condition that he pay $2,000 into my estate "representing the difference in value of my real estate.”

Mr. Stuesse’s “home farm,” through which the Bourbeuse River winds, consisted of 565 acres. Paul left Central College in 1938 and for the next two years the two sons, August and Paul, and their father, who was then actively engaged in farming, operated the farm on a partnership basis. Paul was married in 1940, Mr. Stuesse was then 76, and for some time thereafter the two sons operated the farm in partnership. The fact giving rise to this litigation is that in the 565 acre farm there are two parcels of land, one seven-acre tract in the northwest. corner of the NE4 NE4 and a forty-acre tract in the SE4 SE4, section 18, neither of which is described, fits or -falls within the descriptions in the specific devises of real property, and particularly of item 7 of Mr. Stuesse’s will. While "Section Nine (P)” is mentioned whenever and wherever there is an attempt to specifically describe the land by legal description, the fact is that Mr. Stuesse did not own any land in "Section 9.” And while the 47 acres are in section 18, the will does not specifically mention either the 47 acres or section 18 and therefore, of course, the appellant daughters claim these two parcels of land under the residuary clause. On the other hand, the respondent son Paul contends that it was his father’s intention to give the land to his son, or a son and a grandson, that the erroneous description created an ambiguity and that by construction the erroneous “section 9” should be stricken from the will and the correct but omitted “section 18” inserted, thereby explaining the ambiguity and; devising the 47 acres to him. The appellants contend, however, that the terms of the will are unambiguous and that therefore the court erred in receiving “extrinsic evidence” which showed an intention not expressed in the will and resulted in a construction and disposition of the 47 acres contrary to the terms of the will.

It is not necessary to a disposition of this appeal to enter upon a full discussion of the general rules relating to the construction of wills, the nature of ambiguities and the admissibility of extrinsic evidence. Cockrell v. First Nat. Bank of Kansas City, 357 Mo. 894, 211 S.W.2d 475. It is sufficient to say that “(t)he primary purpose in construing a will is to determine the very disposition which the testator wanted to make, to determine if possible his actual intent rather than an intent presumed by law.” 4 Page, Wills, Sec. 30.1, p. 2; Annotations 6 L.R.A.,N.S., 942; L.R.A.1915E, p. 1008. And, in this connection, “(i)n interpreting any instrument purporting to deal with property, some extrinsic evidence is necessary in order to make the words, which are but signs, fit the external things to which the signs are appropriate” 6 L.R.A.,N.S., 1. c. 956. It is not necessary to explore all the possibilities and attempt a delimitation of the rules, if the description in a will is unambiguous “extrinsic evidence is not admissible to show an intention on the part of the testator to devise other property or to include property not covered by the description.” On the other hand, “(w)here the description of the real property devised is inaccurate, or there is a latent ambiguity with respect thereto, extrinsic evidence is competent to resolve the ambiguity and identify the property designated.” Annotation 94 A.L.R. 26, 128, 131 (the relevant Missouri cases are collected in this and the other annotations cited). As others have pointed out, “the question of correcting a draftsman’s mistake is largely one of semantics, because although the generally accepted view is that a will cannot be reformed, the same result is accomplished under the name of 'construction/ and when a court construes a will as passing property not mentioned * * * or substitutes for misdescribed property * * * other property not described * * * it is in effect ‘reforming’ the will.” Annotation 90 A.L.R. 2d 924, 928. It is not necessary here to nicely discriminate, some of the extrinsic evidence admitted was wholly improper (probably admitted on abandoned count 2 for specific performance) and will of course not be considered upon this appeal. V.A.M.S. § 510.310; Sup.Ct. Rule 73.01, V.A.M.R. Nevertheless, it has become almost a general rule that in the “mis-description of a devise the mistake was rendered inoperative by construction.” 90 A.L.R.2d 1. c. 952. This brief summary of a leading Missouri case, McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, will suffice for the purposes of this opinion: “Extrinsic evidence is admissible to show that the testator did not own the land described as in the section named in the will, but did own land in another section, which he intended to describe and devise, where, after rejecting the false part of the description, i. e., the section number, sufficient remains to identify the property, in the light of the extrinsic circumstances.” 94 A.L.R. 1. c. 138; 4 Page, Wills, Secs. 33.15-33.18, pp. 314-318.

In addition to the mistake in the will as to the section number, when the recorded plat of Mr. Kappelmann’s survey of November 15, 1949, was produced the “dividing line” mentioned in the will was all in section 17 and neither the 7 acres nor the 4Ó acres in section 18 were shown on or included in the survey. But the 7 acres are north of the Bourbeuse River, they do adjoin the 180 acres correctly described and devised to Paul and in a manner of speaking they are west of the dividing line. However, the 40 acres are across the river, they are not “North and West” of the dividing line mentioned in item 7 and they do not adjoin the 180 acres devised to Paul. Nevertheless, after correcting the section number (McMahan v. Hubbard, supra), it may be that “we can reject this particular description and rely upon the general description” (Board of Trustees of Methodist Episcopal Church v. May, 201 Mo. 360, 368, 99 S.W. 1093, 1094; Boxley v. Easter, Mo., 319 S.W.2d 628) and thus include in item 7 the 47 acres. Briant v. Garrison, 150 Mo. 655, 52 S.W. 361. Lending further support to this construction is the fact that in item 6 and in the specific devises of items 7 and 8 the testator repeatedly employed the phrase “my home farm” thereby indicating an intention to specifically dispose of the entire tract of 565 acres rather than to permit the disconnected parcels of 7 acres and 40 acres to pass under the residuary clause to two of the daughters. Harwell v. Magill, 348 Mo. 365, 370, 153 S.W.2d 362. In the three items expressly providing for the three daughters there are no devises, all the gifts are bequests of money “in full share of my estate.” Despite the inclusion of “all the rest, residue and remainder of my estate, real, personal and mixed,” the residuary clause was obviously designed as a catchall for typical residuary purposes. 4 Page, Wills, Secs. 33.46-33.50, pp. 369-376. In item 7 the testator devised “that portion of my home farm” north and west of the dividing line to Paul and then in item 8 he devised to his grandson “the remaining part of my home farm” in the specified sections “south and east” of the dividing line. In view of this devise it is arguable that if “the remaining part” of the farm passes to the grandson under item 8 of the will, no part of it remains to pass to the defendants under the residuary clause. The grandson Donald and his father August were parties defendant to this action, but only Florentine Stuesse as executrix and Florentine and her sister Irene Weigel have appealed and in opposition to Paul and the court’s decree claim the 47 acres. In this manner it is believed that the terminology in all the provisions of the will is harmonized and that as gathered from the relevant extrinsic circumstances and the will as a whole the ultimate intention of the testator is thereby effectuated. McMahan v. Hubbard, supra; Riggs v. Myers, 20 Mo. 239; Creasy v. Alverson, 43 Mo. 13; Thomson v. Thomson, 115 Mo. 56, 21 S.W. 1085, 1128; Mudd v. Cunningham, Mo., 181 S.W. 386; Wiechert v. Wiechert, 317 Mo. 118, 294 S.W. 721. For these reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Samuel E. HOLT and Frances-Jean P. Holt, (Plaintiffs) Appellants, v. QUEEN CITY LOAN & INVESTMENT, INC., (Defendant) Respondent.
    No. 50132.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Samuel E. and Frances-Jean P. Holt, pro se.
    Sam F. Hamra, Jr., James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for respondent.
   HOLMAN, Judge.

In this equitable action plaintiffs sought a decree whereby they would recover certain notes transferred by them, and also a judgment for damages in the sum of $20,000. The controversy grew out of a transaction wherein plaintiffs. agreed to purchase certain improved real estate located in Springfield, Missouri, from Dr. Kenneth Berg. They now contend that Berg made false and fraudulent representations in regard to certain phases of the transaction for which defendant is legally responsible. Defendant, Queen City Loan & Investment, Inc., filed a counterclaim seeking a judgment for payments collected by plaintiffs upon a note alleged to have been owned by it, and for other relief. The trial court found for defendant on plaintiffs’ petition and also on its counterclaim. Plaintiffs have appealed from the ensuing judgment.

Plaintiffs have filed á pro se brief in this court. Defendant has filed a motion to dismiss the appeal based upon the failure of plaintiffs’ brief to comply with Civil Rule 83.05, V.A.M.R. While said brief is deficient in some respects we have decided that we will not impose the drastic penalty sought and the motion is accordingly overruled.

Plaintiffs were the owners of the Sheridan Hills Motel in Tulsa, Oklahoma. Early in June 1960 they sold that motel and as a part of that transaction received certain notes upon which was due a total of approximately $100,000. At about that time plaintiffs were contacted by two real estate agents who represented Dr. Berg of Springfield, Missouri. As a culmination of negotiations with Berg plaintiffs entered into a contract whereby it was agreed that Berg would construct two 12-unit apartment buildings in the outskirts of Springfield, Missouri, and, upon their completion he would convey them to plaintiffs, subject to a $75,000 mortgage which would be placed on each apartment building. Plaintiffs were also to receive the equity in a certain residence located in Springfield. In consideration for these properties plaintiffs agreed to place in escrow with the Citizens Bank of Springfield, the following: (1) $2,000 in cash; (2) a note in the sum of $52,000 signed by Rachel Clifton and Paul C. Vaught, payable to plaintiffs and secured by a fourth mortgage on the aforementioned motel; (3) a note in the sum of $8,500 signed by Rachel Clifton and Paul Vaught, payable to plaintiffs, which was also secured by the fourth mortgage mentioned in (2) above; and (4) a note signed by Eddie Clifton, payable to Rachel Clifton and assigned to plaintiffs, on which there was a balance due of approximately $31,500. This note was secured by certain shares of stock and by policies of life insurance. As part of the same transaction a deed, executed by Dr. Berg and his wife conveying to plaintiffs the lots upon which the apartment buildings were to be constructed, was deposited in escrow with the Citizens Bank. Under the escrow agreement', the money and notes deposited by plaintiffs ■ were to be delivered to Dr. Berg, and the’ aforementioned deed was to be delivered to' plaintiffs upon the culmination of the real estate sales contract which had been entered into by said parties.

Dr. Berg began the construction of the two apartment buildings in June of 1960. For the purposes of this opinion these structures will be referred to as the “east apartment” and the “west apartment.” There were two other apartment buildings being constructed by Dr. Berg which were located between the two buildings plaintiffs had agreed to purchase. The residence property plaintiffs were to receive was conveyed to them and they were residing there at the time of trial. It was conveyed subject to a deed of trust upon which was due-approximately $12,000. In the fall of 1960-plaintiff (we hereinafter refer to Samuel' E. Holt as plaintiff) indicated to Berg that he was dissatisfied with the interior finish--ing of the east apartment and as a result: of that complaint it was agreed that plaintiff would supervise the interior finishing; of that building. Plaintiff was involved in that work for at least 30 days. Dr. Berg was successful in obtaining a $75,000 loan on each of the apartment buildings from Phoenix Mutual Life Insurance Company, the loan on the east apartment being disbursed on September 26, 1960, and the one on the west apartment being disbursed on October 26, 1960.

Early on the morning of October 31, 1960, Dr. Berg called plaintiff and requested that he meet him at the Colonial Hotel for a conference in regard to the apartment projects. In that conference Dr. Berg told plaintiff that the east apartment had been completed and the west apartment was substantially completed and asked him if he would supervise the finishing of that-building. Plaintiff agreed to do so and' Berg gave him a check for $5,000 to guarantee payment of the expenses of .completing work on that apartment. Dr. Berg at that time asked plaintiff to authorize the "delivery of the securities held in escrow by the Citizens Bank, it being then agreed that they would make a joint inspection of the apartment buildings immediately after the securities were transferred. In compliance with Dr. Berg’s request plaintiff went with him to the Citizens Bank and they obtained the release of the items in escrow, and plaintiff went home and brought his wife to the office of defendant where they signed all the papers necessary to transfer ownership of the securities to Dr. Berg. After taking his wife home plaintiff returned to the office of defendant to meet Dr. Berg and make the inspection of the apartment buildings, but was told that Dr. Berg was busy and that .they would have to make the inspection later. Accompanied by William Gabler, the general manager of defendant, plaintiff and Dr. Berg inspected the apartment buildings on November 4. Plaintiff testified that upon inspection of the west apartment he found many matters of a minor nature that were unsatisfactory and, with the help of Mr. Gabler, he discovered a major defect, viz., a large crack in the foundation; that upon discovering the condition of the west apartment he stated that he would not accept the building and demanded the return of the notes he had assigned on October 31; that Dr. Berg then told him he had assigned them to the defendant immediately after they had been assigned to him and that he therefore could not return them.

After an extended period of negotiation it was agreed between Dr. Berg and plaintiffs that plaintiffs would accept the east apartment building, and that in lieu of the west apartment Dr. Berg would transfer to plaintiffs certain shares of stock which were to have an agreed value of $46,000 and a note for $4,000. Plaintiffs, as a result of this agreement, did receive 13,000 shares of stock in Commonwealth Loan & Investment Company. Apparently, those were represented to have a value of $2 per share, although there was evidence to indicate that they were later found to be worth less than that amount. Other shares of stock which Dr. Berg had agreed to deliver to plaintiffs were apparently not delivered; however, there is some evidence that he tendered 14,000 shares of stock in the defendant company but that those shares were not accepted because of a dispute or misunderstanding as to whether plaintiffs should receive voting or nonvoting stock. Plaintiff also testified that after he began the operation of the east apartment building it was discovered that the septic tank was inadequate and that he was required to spend $2,000 to correct the defect in that regard.

Plaintiffs’ petition was in three counts. Count I sought a recovery against defendant upon the theory that Dr. Berg was the agent of defendant in regard to the matters relating to the sale of the aforementioned apartment buildings. The theory of Count ■ II was that defendant had knowledge of the defect in Dr. Berg’s title to the notes and hence was not a holder in due course. In Count III it was alleged that Dr. Berg and defendant were engaged in a joint adventure in regard to the transaction in question. The relief sought in each count was the same, i. e. (1) that the endorsement and assignments of the promissory notes to Dr. Berg and to the defendant be cancelled and declared invalid; (2) that plaintiffs be declared to be the owners of said notes; (3) that plaintiffs recover all payments made to defendant on said promissory notes; and (4) that plaintiffs recover damages from the defendant in the sum of $20,-000. In their pleadings and testimony plaintiffs offered to comply with any requirements made by the court in order that equity be accomplished.

Defendant filed a counterclaim in three counts. The first count was dismissed before trial. In the second count defendant sought to recover from plaintiffs $8,000 which it alleged they had collected on a note theretofore assigned to defendant. In count three defendant sought a declaratory judgment to the effect that it was the sole owner of the notes that Dr. Berg had as■signed to it and that plaintiffs had no right, title, or claim thereto.

The evidence upon which plaintiffs relied in an effort to prove agency and joint adventure between Dr. Berg and the defendant, as well as notice of the fraud involved, will now be stated. Dr. Berg was referred to in the evidence as being a major stockholder of the defendant corporation. Plaintiff testified that from June until September 1960 he often met Dr. Berg at defendant’s office; that during that period he would call Dr. Berg at defendant’s office and if he was not there would leave word for him to return the call; that during that time Dr. Berg had no other office except the use he was making of defendant’s office; that in September 1960 Dr. Berg opened his own office at a location next door to the office of defendant. On cross-examination, however, plaintiff stated that no one at the office of defendant ever told him that Dr. Berg was an officer, director, or employee of the defendant.

Mrs. Betty Chase, an employee in the office of defendant, testified that William Gabler was general manager of the defendant company from June 1960 until April 1961; that the records of the defendant show that defendant purchased the notes (which were in escrow at that time) from Dr. Berg on July 19, 1960; that at that time loans which defendant had made to Dr. Berg in the amount of $15,000, $9,-495, and $8,300 were cancelled; that a certificate was issued to Dr. Berg for 12,519 shares of “B” stock in defendant corporation at a value of $3 per share, or a total value of $37,557; that the value of the stock and the amount of loans cancelled totalled $70,352, which amount defendant’s records showed was the consideration paid for the assets received from Dr. Berg, and which amounted to a discount of 26.3% ■upon the face value of said assets; that Dr. Berg’s notes were not marked paid by defendant until October 31, 1960.

Donald Heizelman testified that he was •.foreman for Dr. Berg on the apartment buildings project from May 1960 until October 20, 1960; that William Gabler would come out once or twice a week and look at the apartments, often accompanied by Dr. Berg; that if Dr. Berg was not available Gabler would sometimes make minor decisions concerning the project, although all important final decisions were made by Dr. Berg; that about the middle of September Dr. Berg and Gabler told him of the crack in the foundation of the west apartment and Gabler said that if plaintiff saw the crack he would “back out” of the deal ; that he did not tell plaintiff about this crack. He stated that the arrangement he had with Dr. Berg was that he would pay the hills for labor and material out of his personal bank account and Dr. Berg would give him a check from time to time to cover the amounts he had paid out; that on several occasions Dr. Berg left signed checks with Mr. Gabler and Gabler would fill out the check for an amount sufficient to cover the “bills which I needed to pay, and deliver the same to me.” On cross-examination this witness stated that Dr. Berg never represented to him that he was an agent, employee, or director of the defendant corporation.

William Gabler was called as a witness for the defendant and stated that Dr. Berg came to the office of defendant in July 1960 and talked with him and with Mr. Gatlin (another officer of defendant company) about selling the notes in escrow to the defendant; that he went to the Citizens Bank with Dr. Berg and examined the documents in question; that an arrangement was then worked out whereby, if Dr. Berg fulfilled his agreement with plaintiffs and obtained the documents that were in escrow, defendant would purchase same; that the consideration was to be the cancellation of certain loans Dr. Berg had with the defendant and an additional amount of stock in the defendant company. He stated that the first time he saw the crack in the west apartment building was during the early part of November; that after plaintiffs refused to accept the west apartment it was purchased from Dr. Berg by Commonwealth Loan & Investment, Inc., which company he also represented; that the crack was repaired at a cost of $2,700; that he never filled out any checks for Dr. Berg but that it was entirely possible that Dr. Berg had left one or more checks at the office for foreman Heizelman to pick up.

Defendant also presented Frank Brewster and Robert Killian, both of whom were directors of the defendant, and each of these witnesses testified that Dr. Berg was not an officer, director, or employee of the defendant during the period here involved. Dr. Berg was not a defendant in this action and did not testify. Apparently, he left Springfield before the trial of this case.

In regard to the issues raised in the second count of defendant’s counterclaim plaintiff testified that he continued to receive the payment of $500 per month on the Eddie Clifton note after October 31, 1960, until November 1951, and also received an additional payment of $1,071.25 in April 1961, but that he paid $750 of the amount collected to Dr. Berg.

The findings and decree of the trial court included the following:

“The first issue to be decided by the court ■is whether or not this defendant is a holder in due course of the notes in question. If the defendant is such a holder, all of the many other issues raised in this case have no bearing on the final judgment.
“The court finds that on the date these securities were endorsed over to this corporate defendant, the defendant became a holder in due course for value. * * *
’“There is no evidence • that the officers and agents of the defendant corporation would have any reason to believe or suspect that the plaintiff, who was in actual charge of the completion of the apartment houses, was being, -or could be, defrauded as to their condition. It is true that the defendant company did not give face value for these securities, but securities of this nature (a fourth mortgage) are commonly discounted quite heavily. * * *
“It seems obvious that the transaction of July 19, 1960, between the defendant corporation and Dr. Berg was a conditional sale of the securities in question. * * * On October 31, 1960, the conditional contract was completed by the physical delivery and endorsement of the securities to the defendant, and Dr. Berg received the stock in defendant corporation.
“On Count II of defendant’s counterclaim, the court finds that the plaintiffs, have received all the payments on the Eddie Clifton note, even though defendant has. been the legal owner of the note since October 31, 1960. However, the plaintiff testified, without contradiction, that the parties hereto agreed that he should keep the-payments through December 1960, that the January 1961 payment went half to him and’ defendant, that the defendant and Dr. Berg-received the February 1961 payment, and’ that thereafter plaintiffs received eight-monthly payments of $500.00 each, and one-additional payment of $1,071.25, a total of $5,071.25. * * *
“It is ordered, adjudged and decreed that the defendant have judgment on Counts. I, II, and III of plaintiffs’ petition; that the defendant have a judgment on Count II of defendant’s counterclaim against plaintiffs in the amount of $5,071.25; and that defendants have judgment on Count III of defendant’s counterclaim declaring defendant to be the sole owner of the securities described therein.”

We will first consider whether defendant was a holder in due course of the notes in question. The $52,500 note was dated June 10, 1960, and the first principal installment would not become due until 84-months after its date. The Eddie Clifton note was dated January 31, 1958, and was payable in monthly installments which had’ been paid as they fell due. The $8,500 note was dated June 10, 1960, and was payable “on or before 90 days after date.”’ It was. paid while being held in escrow. Defendant did not receive this note but received the amount collected thereon in accordance with the conditional purchase arrangement entered into with Dr. Berg on July 19, 1960. For the purposes of this case we will consider that this note was assigned to defendant before maturity.

The rules of law applicable in our determination of the question presented are well established. It has been settled since the early case of Hamilton v. Marks, 63 Mo. 167, that “both upon principle and authority, and from the experience of jurists and commercial men, and the interests of the affairs of business life, it is safe to say that the liberal doctrine which promotes the free circulation of negotiable instruments, is the best, and that the good faith of the transaction should be the decisive test of the holder’s rights.” 63 Mo. 178. In accord with the principle stated in Hamilton, ■“[I]t was firmly settled long ago, beyond room for- argument now, that the purchaser of a negotiable promissory note procured by fraud may not be charged with notice of an infirmity or defect by showing that he was negligent in taking the instrument or that he acquired it with knowledge of facts and circumstances that would arouse the suspicion of an ordinarily prudent person, and that nothing short of actual knowledge or bad faith will defeat the title of such purchaser. Of course, actual knowledge may be inferred from the facts and circumstances surrounding acquisition of the note but not ‘from things that would merely put a prudent man on inquiry.’ Commerce Trust Co. v. McGirk State Bank, 222 Mo.App. 8, 300 S.W. 526, 527(4).” Local Finance Co. v. Charlton, Mo.App., 289 S.W.2d 157, 160. See also Jennings v. Todd, 118 Mo. 296, 24 S.W. 148, Dull v. Johnson, Mo.App., 106 S.W.2d 504, and Downs v. Horton, Mo.App., 209 S.W. 595, approved on transfer, 287 Mo. 414, 230 S.W. 103. The applicable statutory provisions are in accord with the long-established case law of this state. See §§ 401.052, 401.056, and 401.057 (all statutory references are to RSMo 1959, V.A.M.S.).

We agree with the conclusion of the trial court that defendant, on October 31, 1960, became a holder in due course of the notes in question. There certainly was no proof of actual knowledge on its part of any fraudulent representations Dr. Berg may have made to plaintiffs. The only testimony concerning a fact which might have aroused its suspicion was that of Mr. Hei-zelman to the effect that Mr. Gabler knew of the crack in the west apartment in September 1960. That was denied by Gabler who stated that he first learned of the crack in early November. However, even if we accept the Heizelman testimony, such would not be sufficient to warrant an inference of bad faith on the part of defendant. It is undisputed that defendants knew that these notes were in escrow and were not to be delivered to Dr. Berg until he complied with his contract. In that situation it would have been reasonable for defendant to assume that plaintiffs would not authorize the release of the notes 'and thereafter assign them to Dr. Berg unless they had inspected the buildings and had required Dr. Berg to make arrangements for the repair of any apparent defects, such as the foundation crack of which plaintiffs thereafter complained.

As indicated, we hold that defendant was a holder for value in due course of the aforementioned notes, and it therefore follows that it holds them “free from any defect of title of prior parties, and free from defenses available to prior parties * * § 401.057.

The evidence in this record offered for the purpose of showing that Dr. Berg was acting as agent for defendant in constructing these apartment buildings is not convincing. “[Tjhere is no presumption of agency and the burden of establishing it is always on the party by whom it is alleged to exist.” Martin v. Mercantile Trust Co., Mo.Sup., 293 S.W.2d 319, 325. There was no evidence of an express agreement of agency. Officers and directors of defendáht testified that Dr. Berg was not an agent of defendant. There is no evidence that Dr. Berg ever represented that he was acting as defendant’s agent. It is true that Dr. Berg was one of defendant’s stockholders and used its offices in transacting some of his business. Also, defendant loaned money to Dr. Berg and therefore took some interest in the progress of the apartment construction project here involved. However, those circumstances are not sufficient to convince us that Dr. Berg was acting as defendant’s agent and we accordingly rule that contention adversely to plaintiffs.

We will next consider the contention that the relationship between Dr. Berg and defendant was a joint adventure. “A ‘joint adventure’ is founded entirely on contract, either express or implied. It can exist only by the voluntary agreement of the parties to it. * * * It is in the nature of a partnership, generally governed by the same rules of law, the principal difference being that a joint adventure is usually limited to a single transaction. As a general rule, in order to constitute a joint adventure, there must be a community of interest in the accomplishment of a common purpose, a mutual right of control, a right to share in the profits and a duty to share in such losses as may be sustained.” Gales v. Weldon, Mo.Sup., 282 S.W.2d 522, 527. The evidence has been heretofore stated in some detail and will not be here repeated. It is sufficient to state that it fails to prove the various elements essential to a finding that a joint adventure existed in. this case.

Plaintiffs have briefed the contention that the. transaction whereby defendant purchased the notes in question from Dr. Berg was illegal because a part of the consideration was the cancellation of certain loans which defendant had made to Dr. Berg in violation of § 351.165. That section provides that “ * * * no loan of money shall be made by the corporation to any shareholder therein; and if such loan shall be made to a shareholder, the officers making it, or who shall assent thereto, shall be jointly and severally liable to the corporation for the repayment of such loan and interest.” Statutes of that nature are generally held to be directory only and loans made in contravention thereof are not void. Graham v. Young, 35 Del. 484, 167 A. 906. The penalty is that prescribed in the statute. Ward v. National Ice Cream Co., Mo.Sup., 246 S.W. 554. Dr. Berg voluntarily paid those loans by selling the instant notes to defendant. We hold that the sale of said notes was not void or illegal because a part of the consideration was the payment or cancellation of loans that had been made to Dr. Berg in violation of § 351.165.

Plaintiffs also contend that defendant had no right to purchase the instant notes because no “Certificate to Commence Business” was issued to it during the year 1960. This is not an issue raised by the pleadings and no proof appears in the transcript supporting said contention. In that situation we must rule this point against plaintiffs.

The third point in plaintiffs’ brief reads as follows: “The court erred in not permitting plaintiffs to implead Kenneth Paul and Jeanne M. Berg as third-party defendants.” There is no citation of authority to support that contention and it is not developed in any manner in the argument. The point is therefore deemed abandoned. Civil Rule 83.05, V.A.M.R.; Lansford v. Southwest Lime Co., Mo.Sup., 266 S.W.2d 564.

Plaintiffs’ next contention is that “the court erred in becoming impatient, pushing and hurrying counsel, and ordering that attorneys stipulate as to exhibits, wrongfully stating that the court had repeatedly requested that counsel stipulate, and stating on more than one occasion that there was no evidence of fraud or knowledge thereof presented when indeed there had been, causing [the] attorney for plaintiffs to become confused, uncertain and rattled and thereby resulting in the failure of the introduction of evidence, issues and objections for and in behalf of the plaintiffs.” We have carefully read the transcript and have considered it in the light of the quoted contention and conclude that the point is without merit. During most of the trial the court demonstrated unusual patience in permitting the attorneys on each side the privilege of presenting their evidence to the extent and in the manner desired by counsel. Near the end of the presentation of plaintiffs’ evidence the court stated to counsel that four other cases were set for that week and it was therefore necessary that the case on trial proceed with dispatch. A short time later the court expressed dissatisfaction with the fact that much of the evidence did not have anything to do with the question of defendant’s knowledge or lack of knowledge “of any fraud in the transaction.” Thereafter, the court also called attention to the fact that counsel had stated to the court that they did not need a pretrial conference because they could stipulate to certain facts, and stated that the court was now unable to get counsel to stipulate as to records that were not in dispute. As a result of the ensuing colloquy, it was agreed that plaintiffs’ counsel could thereafter furnish photostatic copies of certain of defendant’s office records which plaintiffs desired be considered in evidence.

The trial court is possessed with considerable discretion in matters concerning the conduct of the trial. “It is a long established rule that the determination of matters pertaining to the actual conduct of the trial of a cause is left by the law largely to the discretion of the trial judge. In the very nature of the matter this must necessarily be the rule, and appellate courts are not authorized to interfere with the exercise of such discretion on the part of a trial judge unless it clearly appears that he has abused his discretion.” Koeppel v. Koeppel, Mo.App., 208 S.W.2d 929, 936. We are convinced that the trial court did not abuse its discretion in regard to the matters herein complained of. As indicated, we rule this point against plaintiffs.

Another point briefed by plaintiffs is that “the court erred in not finding that the defendant was unjustly enriched in its finding that ‘securities of this nature (a fourth mortgage!) are commonly discounted quite heavily.’ ” In connection with that contention we observe that unjust enrichment was not one of plaintiffs’ pleaded grounds for recovery. Also, the fact that defendant purchased these notes at a discount would not preclude a finding that it was a holder in due course, for value, of said notes. Therefore, the finding (or judicial notice) of the trial court that “securities of this nature (a fourth mortgage) are commonly discounted quite heavily” was not essential to the court’s conclusion that the defendant was a holder of the notes in due course. We will therefore not extend this already long opinion by determining whether the trial court was warranted in finding, or taking judicial notice of the fact, that securities of the nature here involved are commonly discounted quite heavily.

The next point briefed by plaintiffs is that “the court erred in finding that ‘the plaintiff husband had every opportunity to acquaint himself with the physical condition of the apartment houses on every day for months prior to the date of the transfer of the securities.’ ” This finding was not essential to the court’s conclusion that defendant was a holder of the notes in due course. However, the uncontradicted evidence clearly shows that plaintiff had every reasonable opportunity to acquaint himself with the condition of those buildings. He was living in Springfield and visited the project frequently. For about a month prior to October 31, 1960, he worked on the east apartment which was located a short distance from the west apartment. He may have failed to acquaint himself with the condition of both structures, but he undoubtedly had the opportunity to do so. We rule this point against plaintiffs.

Plaintiffs have made other points in their brief concerning allegedly erroneous findings (which were not essential to the judgment) and complain of the failure of the trial court to give proper consideration to certain evidence offered by them. We overrule those contentions without further specific discussion. It is sufficient to state that the trial court found the essential facts to support the judgment in favor of defendants. We not only defer to the trial court in that regard, but have independently arrived at the same conclusion.

In their motion for new trial plaintiffs sought a new trial because of newly discovered evidence. Several weeks after the motion was filed they filed five affidavits in support of that assignment. It appeared from those affidavits that the persons who signed them would have testified that Mr. Gabler knew of the foundation crack before October 31, 1960, and that he sometimes gave orders to the workmen on the project.

Civil Rule 78.03 provides that affidavits supporting a motion for new trial “shall be served with the motion.” The rule was not complied with in this instance and therefore the affidavits should be disregarded. Tuttle v. Tomasino, Mo.Sup., 336 S.W.2d 683 [1],

However, even if the affidavits are considered, they do not afford a basis for holding that the trial court abused its discretion in denying a new trial on the ground assigned. “It is well settled that a party who seeks a new trial on such ground should (to obtain such relief) be required to show: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different result if the new trial were granted; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be produced, or its absence accounted for; and (6) that the object of the testimony is not merely to impeach the character or credit of a witness.” Young v. St. Louis Public Service Co., Mo.Sup., 326 S.W.2d 107, 111. In this case there was no showing of any reasonable excuse as to why this testimony could not have been obtained, with diligence, prior to trial. Also, the testimony would have been merely cumulative in that the same facts appear in the testimony of Mr. Heizelman. Another function of the proposed testimony would have been merely to impeach the credit to be given to the testimony of Mr. Gabler. We are also of the opinion that such testimony would probably not produce a different result if a new trial were granted. For the reasons stated, we rule that the trial court did not err in refusing to grant a new trial because of newly discovered evidence.

The judgment is affirmed.

All concur.