author: ELGIN T. FULLER, Special Judge.

text:
    Kenneth WOLF (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant) Appellant.
    No. 30907.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.

      Don R. Williams, St. Louis, for appellant.
    Sullivan & Joyce, by James L. Sullivan, St. Louis, for respondent.
   ELGIN T. FULLER, Special Judge.

The defendant appeals from a verdict and judgment in favor of the plaintiff for $2,500. Kenneth Wolf brought his cause of action against the St. Louis Public Service Company for personal injuries, loss of wages, medical expenses and doctor bills allegedly sustained in and arising from an accident which occurred Saturday evening, March 20, 1954, when defendant’s streetcar collided with the rear end of plaintiff’s automobile. Plaintiff was operating his automobile southwardly on Grand Avenue in the City of St. Louis, and was stopped by reason of traffic at or near the intersection of Grand Avenue with Crittenden Street. Traffic ahead of plaintiff was also stopped in obedience to the traffic light at Arsenal Street which was one block south of Crittenden. Plaintiff’s vehicle was located five or six feet behind the car in front. That car was waiting to make a left turn into Crittenden. The plaintiff saw the streetcar approaching from the rear about ten or twelve feet behind plaintiff’s automobile. He put his foot on the brake to brake himself and to prevent his car being thrown forward into the car ahead. The streetcar struck and damaged the rear bumper guard but did not damage the bumper itself. The trunk lid was hit about where the latch is on the center of the trunk door. Plaintiff’s automobile was thrown forward, but did not strike the automobile in front of plaintiff’s automobile because that car had moved forward in making its left turn. Plaintiff was not thrown against any part of his car, but he testified that the impact “jarred me sort of and snapped my neck — just like a whip — forward and back.’’ After getting out of his automobile plaintiff walked to the intersection of Grand and Arsenal and talked with a policeman. He then went back to the streetcar, boarded the streetcar and talked to the streetcar operator. He then drove his car to St. Anthony’s Hospital to visit his brother where plaintiff planned to go when he left his home that evening. While at the hospital he sought no medical attention for himself. After the visit with his brother plaintiff went home, and after arriving home he began to get a severe headache and a pain in his neck. He called his family doctor, Dr. Dihl, a chiropractor, who came to plaintiff’s home Saturday night. Plaintiff went to Dr. Dihl’s office the following Monday, March 22.

Sometime between Saturday evening and Monday plaintiff called the Public Service Company and reported the accident and at that time someone from defendant company gave plaintiff the names of three or four garages and asked if plaintiff wanted to take his car to one of those garages to have his automobile repaired. One, the General Body and Motor Service, was near plaintiff’s place of employment, so he took his car there Monday, March 22. The next day, Tuesday, March 23, he went for his car which had been repaired. The man in charge of the garage asked the plaintiff to sign a release and endorse a check in the amount of $39.07 which the garageman had. Plaintiff told the garageman that he didn’t want to sign the release because he still had to see the doctor. Plaintiff testified that the garageman then called the Public Service Company and talked to a gentleman there and then handed the telephone to the plaintiff ; that the man identified himself as being with the Public Service Company. Plaintiff then testified, “He told me to go ahead and sign and clear their records and release my car; and the doctor bills would be taken up at a later date.” That was all of the conversation. Plaintiff then signed the release and endorsed the check for $39.07 and got his car. The repair bill amounted to $31.07. The balance of eight dollars was given to the plaintiff for the two occasions plaintiff had seen the doctor. This was March 23, 1954. Three years and two months later (May 27, 1957) plaintiff filed suit for injuries and damages allegedly received in this accident. The trial proceeded on plaintiff’s second amended petition which was filed September 8, 1959.

The defendant’s answer pleads the written release as a bar to plaintiff’s action.. On May 18, I960, plaintiff filed his reply admitting that plaintiff signed the release and endorsed the check, but to avoid the effect of the release, plaintiff alleged that such release did not constitute a release of anything other than property damage, and alleged that the conduct of the defendant and its agent constituted “undue duress” and fraud, or, as stated by plaintiff, “constituted a material misrepresentation upon which plaintiff relied, and which thereby voided any alleged agreement, contract or release.”

The duress, misrepresentation and fraud' relied upon will be discussed in the further-course of this opinion. The trial court denied defendant’s motion for a directed verdict, and by instructions which hypothesized the facts as developed by the evidence, submitted the question of the validity of the-release to the jury. Following the verdict in favor of the plaintiff, defendant filed its. motion for judgment in accordance with its-motion for a directed verdict, grounded in part upon the plea that the execution of the release barred plaintiff from maintaining-the cause of action. This motion was likewise overruled and an appeal was timely-perfected.

The principal question is the legal effect of the release signed by the plaintiff, which by its terms fully released the defendant “of and from all claims or demands of every kind or nature whatsoever on account of' injuries to person or damage to property arising from accident which occurred on or about March 20, 1954, at or near Grand and Crittenden. The undersigned further declares that he./she has executed this release of his/her own free will and had not relied upon any representations on behalf of St. Louis Public Service Company concerning-the nature or extent of his/her injuries, and/or damage.”

If the release was not procured by duress, misrepresentation or fraud, then it was binding upon the plaintiff, and was a bar to plaintiff’s cause of action.

The plaintiff’s reply raised the question of duress, misrepresentation and fraud with these allegations and these alone:

“ * * * but plaintiff denies that said signing of said document and endorsing of said draft constitutes a release of anything other than the property damage claim * * * and that in fact plaintiff did not agree to accept payment thereunder as settlement in full of the claims described in plaintiff’s petition * * * that upon request for his automobile he was informed by said garage attendant or owner that it would be necessary for him to sign the document previously referred to by defendant as Exhibit ‘A’ in their Amended Answer and further necessary that he endorse the draft previously referred to as Exhibit <B> * * * that said action on the part of defendant or its agent or both constituted undue duress on the plaintiff, thereby voiding any alleged agreement, contract or release * * *.”

And after pleading the fact of the telephone conversation with a gentleman at the Public Service Company, plaintiff then alleged:

“ * * * whereupon he did so converse and was told by defendant’s agent that he should sign the release so that the garageman could close his records and release the car and that the doctor bills would be taken up at a later date. Plaintiff further states that during said conversation he told defendant’s agent that he had not completed his treatment and had no knowledge of when it would be completed.
“Further that said action on the part of said garage on behalf of defendant and upon defendant’s agent at defendant’s office constituted a material misrepresentation upon which plaintiff relied, and which thereby voids any alleged agreement, contract or release.”

The only evidence on this vital question of duress, misrepresentation and fraud is as follows:

“Q. What did he (the garageman) ask you to do?
“A. He asked me to endorse the check and sign the release.
“Q. What did you say?
* ⅜ * * * *
“A. I told the man I didn’t want to sign the release because I still had to see the doctor.
⅝ ⅜ >;< * * ⅜
“Q. What happened then?
“A. He called the Public Service Company and talked to the gentleman there and turned the phone over to me, and I was instructed to go ahead and sign.
* * * * * *
“Q. What did he tell you? * * *
“A. He told me to go ahead and sign and clear their records and release my car; and the doctor bills would be taken up at a later date. * * *
“Q. Was there any further conversation with the representative from the Public Service Company with respect to the signing of the release?
“A. No.
* ⅜ * * ⅜ *
“Q. Prior to the conversation with the representative * * * from the Public Service Company was there additional conversation with the representative of the garage or the man from the garage who had * * * this release and check in his possession? Did he tell you anything in addition to what you have already testified to? •K ⅜ ⅜
“A. No, it was just so he could clear his records and release my car. * * *
“Q. What happened after you got off the phone?
“A. I signed the release and check. * * ⅝
“Q. You were able to get your automobile after that?
“A. Yes. * * *
“Q. On the first conversation you had with the Public Service Company was there any mention that you would be required to sign the release and the check ?
“A. No.”

We are clearly of the opinion that the evidence falls far short of presenting a case of duress, misrepresentation or fraud. The execution of the release was admitted and plaintiff had the burden of proving the release invalid. Dixon v. Business Men’s Assurance Co. of America, 365 Mo. 580, 285 S.W.2d 619; Conley v. Fuhrman, Mo. Sup., 355 S.W.2d 861, 864. The plaintiff was a high school graduate and, at the time of trial, had been employed 13½ years as an installer and switchman for the Southwestern Bell Telephone Company. Plaintiff talked only by telephone to the representative of the Public Service Company and plaintiff, upon being asked what plaintiff was told, testified, “He told me to go ahead and sign and clear their records and release my car; and the doctor bills would be taken up at a later date.” Plaintiff knew that he was signing a release. There was no evidence that a .confidential relationship existed between the plaintiff and the representative or agent of the Public Service Company with whom plaintiff talked by telephone. After that conversation the plaintiff signed the release, endorsed the check, received his money and drove his car away. The next the defendant ever heard from plaintiff was when the defendant was served with process in this case. There was no evidence offered that the defendant Public Service Company ever refused to “take up the doctor bills at a later date.” There was no evidence that the plaintiff ever requested the defendant to consider or pay additional doctor bills. The garage records were cleared and plaintiff’s car was released. Therefore, the only justification for the claim of misrepresentation and fraud must be found in the clause, “and the doctor bills would be taken up at a later date.”

Section 509.070 RSMo 1949, V.A. M.S., provides that a plaintiff may state his original claim against the defendant and also in either the original or amended petition or reply, a claim for having a release or discharge of the original claim set aside as fraudulently or otherwise wrongfully procured. Prior to this Section, originally Section 654 R.S.Mo.1899, a release of a claim or cause of action had to be set aside in an equitable action before proceeding with the suit on such claim. Section 509.079 did not change the substantive law governing the rescission or avoidance of contracts of settlement upon the ground of duress or fraud. It was not the purpose of the Legislature, by the enactment of that section, to change the substantive law or the degree of proof and the rules governing the rescission of contracts of settlements. The purpose of such statute was to avoid a multiplicity of suits, by authorizing the duress or fraud issue to be tried by the jury at the same time and in the same case involving the original cause of action. No court in an equity proceeding, being presented with the evidence offered in this case, would set aside the release.

Under the so-called modern equitable rule a contract obtained by so oppressing a person by threats as to deprive him of the free exercise of his will may be avoided on the ground of duress whether or not the oppression causing incompetence to contract amounts to what was formerly deemed duress at law or merely to the wrongful compulsion remediable in equity. The question in each case is whether or not the victim was so acted on by threats of the person claiming the benefit of the contract as to be bereft of the quality of mind essential to the making of a contract, and whether or not the contract was thereby obtained. 17 C.J.S. Contracts §§ 173, 174, 175.

In Wood y. Kansas City Home Telephone Co., 223 Mo. 537, 123 S.W. 6, 1. c. 12, the following language, taken from 9 Cyc., page 450, was approved:

“Duress then, according to this class of cases, includes that condition of mind produced by the wrongful conduct of another, rendering a person incompetent to contract with the exercise of his free will power, whether formerly relievable at law on the ground of duress or in equity on the ground of wrongful compulsion.”

Duress might be such as to render a settlement void at law. The actual application of force to compel the act of signing a release would constitute an instance. But there is no evidence of duress in this case.

Upon the same evidence plaintiff contends that the release was obtained by misrepresentation and fraud. The defendant claims that the plaintiff made no case for the jury because (1) the statement made by the representative of defendant company, “and the doctor bills would be taken up at a later date,” referred to something to be done in the future and could not support an action based on fraud; (2) the plaintiff failed to plead and prove that he tendered back or offered to tender back to the defendant the consideration received for the release; and (3) the court erred in admitting parol evidence to vary the terms of the unambiguous release.

It has been the rule in Missouri that representations, though false, which relate to something to be done in the future, cannot be made the basis of a charge of fraud. Sparks v. Rudy Fick, Inc., Mo.App., 309 S.W.2d 687. The rule is that the alleged fraudulent representations must relate to a present or preexisting fact, and that fraud cannot ordinarily be predicated on unfulfilled promises or statements as to future events. Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275.

In the case of Riss & Company v. Wallace, 239 Mo.App. 979, 195 S.W.2d 881, the defendant was claiming the right to recover on his counterclaim for fraud and deceit on the ground that plaintiff had promised to deliver the certificates of title to certain vehicles and that plaintiff had failed to do so. There was evidence in support of that and to the further effect that plaintiff, at the time such promises were made, had no intention to thereafter deliver the certificates. The opinion then states: “Actions based on fraudulent representations must be predicated on misrepresentations as to material existing facts. It is not sufficient that the promisor, when making the promise, had no intention of fulfilling it, if the promise was as to an act to be performed in the future.” (195 S.W.2d 1. c. 886.)

In Reed v. Cooke, supra, our Supreme Court held that fraudulent representations must relate to present or preexisting facts to be actionable, and fraud cannot ordinarily be predicated on unfulfilled promises or statements as to future events. And that fraud cannot be predicated on mere promise, though accompanied by a present intention not to perform it. After recognizing that there are exceptions to the rule just stated, the opinion 55 S.W.2d at page 278 states: “It will be observed that in this case the material statements ascribed to defendants, upon which plaintiff says he relied, and which are alleged to have induced him to buy the stock, relate to something to be done and performed by defendants in the future, and are wholly promissory.” Continuing the opinion states:

“One limitation of the general rule, adopted in many jurisdictions, and which has been denominated by text-writers as the majority rule, is ‘that fraud may be predicated on a promise accompanied by a present intention not to perform it and made for the purpose of deceiving the promisee and inducing him to act where otherwise he would not have done so and by virtue of which the promisor has procured either real or personal property from the person to whom the promise is made.’ (Citing 12 R.C.L. p. 361.) It is quite clear that plaintiff has attempted to bring himself within this rule * * *. But the rule in this state is ‘that fraud cannot be predicated upon a mere promise even though accompanied by a present intention not to perform it on the ground that even under such circumstances the promise is not a misrepresentation of an existing fact.’ * * * ‘ * * * A promise though made without intention to fulfill, is not a misrepresentation of an existing fact. Wade v. Ringo, 122 Mo. 322, 25 S.W. 901; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316.’ The rule as thus announced seems to have been adhered to by our courts.” (55 S.W.2d 1. c. 278.)

This court in Missouri Loan & Investment Co. v. Federal Trust Company, 175 Mo.App. 646, 651-652, 158 S.W. 111, 113, said, “ * * * a representation, to amount to fraud, must assert a fact or facts as existing and cannot relate to the future. If it does, it is not fraud, whatever may be the intention of the party or the effect of his statement.”

Our Supreme Court in Grand Lodge of the United Brothers of Friendship v. Massachusetts Bonding and Insurance Co., 324 Mo. 938, 25 S.W.2d 783, 788, stated: “Another well-settled rule is that false representations, in order to constitute actionable fraud, must relate to past or existing facts. Representations, although false, which relate to something to be done in the future, cannot be made the basis of a charge of fraud.”

There are exceptions to the above rule. In the case of Thieman v. Thieman, Mo., 218 S.W.2d 580, 1. c. 585, the Supreme Court, in discussing this rule, stated: “The difficulty of the rule lies in its application and the determination of just what are statements of fact rather than expressions of opinion.” In that case the defendant husband had proposed to his wife that if she would sell her equity in her city property he would sell his equity in his farm and with the joint proceeds they would purchase other city property and take title in their joint names. His wife, relying on defendant’s good faith, sold her property and deposited the proceeds in their joint names. The defendant prevailed on his wife to purchase the city property and her money was used as a down payment and title taken by the entirety. Defendant then refused to sell his farm or to contribute anything to the purchase of the new property. The husband claimed that his promise to sell his farm was merely a promise to do something in the future and was not an actionable fraudulent representation. The court cited Collins v. Lindsay, Mo.Sup., 25 S.W.2d 84, and the language in that opinion on page 90, is as follows: “In this situation it was represented to her that her father intended to default in his payments for the purpose of bringing about foreclosure and sale, and moreover that her interest was in no event worth more than the price offered, $500. This, we think, was more than a mere expression of opinion or statement of something that would occur in the future. The statement that her father intended to default in his payments and bring about a sale meant, and was understood by plaintiff to mean, that he then had that intention; that such was then his state of mind, his present design and purpose.”

A state of mind, an existing purpose, may be misrepresented and thus constitute a misrepresentation of fact Where representations do not relate so much to a future event as to existing facts, conditions or arrangements on which an expectation of that event may be founded they are not to be regarded as merely promissory. Metropolitan Paving Co. v. Brown-Crummer Investment Co., 309 Mo. 638, 274 S.W. 815, 823.

In Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 1. c. 574, the Supreme Court, quoting from Teare v. Sussman, 120 Colo. 488, 210 P.2d 446, 447, said: “Where a present intention, even though as to future conduct, is predicated upon or evidenced by false statements as to existing facts, such statements, if relied on, constitute actionable fraud.”

Another exception to the rule that representations, although false, which relate to something happening in the future cannot be made tire basis for a charge of fraud, is found in Stallings v. Bone, Mo.App., 327 S.W.2d 513.

Assuming, but without deciding, that the statement, “the doctor bills would be taken up at a later date” is such a statement as to come within an exception to the rule discussed above, still this would not aid plaintiff in this case, for plaintiff failed to prove or to offer any proof that such statement was made with a preconceived intention not to perform it. There is no misrepresentation or fraud inherent in the statement that the doctor bills would be taken up at a later date. Only would such statement be a misrepresentation or fraudulent if it were made by one who, at the time of utterance, had no intention to do the thing stated. There was no evidence that the defendant Public Service Company ever refused to “take up the doctor bills at a later date.”

This is not a suit for breach of contract or agreement to pay doctor bills. Plaintiff chose to bring his suit for personal injuries, loss of wages, medical expenses and doctor bills and to ignore the release which he had executed. The release could be avoided had duress or fraud been proven by the plaintiff. No such issue was made for the jury.

For another reason plaintiff failed to make a case for the jury. He did not plead or prove that he had returned or tendered back or offered to return the consideration he had received for the release. It is a well established principle in Missouri law that there are two categories of fraud and that the legal results of the fraud in some ways differ, depending upon the category to which it belongs. The two classes are (1) fraud in the inducement and (2) fraud in the procurement. Fraud in the procurement is sometimes called fraud in the factum. Both kinds of fraud consist in a misrepresentation intentionally or recklessly made by the fraud-feasor which has been relied upon by the victim and which has caused the victim to do an act which he would not otherwise have done. This representation may consist in telling the victim that the act which he is doing is of a different nature than what it really is. Or the misrepresentation may consist in telling the victim that certain collateral facts exist which make him want to do the act which he has done. In the latter instance the victim is under no misapprehension about what he is doing. He fully intends to act just as he did act. In the case of collateral fraud or fraud in the inducement there is a contract. But the defrauded one is given a power to set aside the contract or release. The contract is therefore voidable and not void. In cases of fraud in the factum the fraud-feasor intends one thing and the victim intends another thing. There is no contract and the transaction is void. This distinction was clearly stated by Judge Ragland in Rau v. Robertson, Mo.Sup., 260 S.W. 751. The cases hold that no tender of the consideration received is required where the misrepresentation constituting the fraud is as to the nature of the jural act to be performed. But that it is necessary for the defrauded party to return or offer to return or tender back the consideration received where the fraud relates to collateral matters or where there is fraud in the treaty. Our Supreme Court had this matter of returning the consideration in a release case in State ex rel. Order of United Commercial Travelers of America v. Shain et al., 339 Mo. 903, 98 S.W.2d 597. Judge Westhues, at page 602, stated:

“In the case of McCoy v. James T. McMahon Const. Co., [Mo.Sup.] 216 S.W. 770, loc. cit. 771, 772(1-5) (6), this court had this question before it. The rule was so well stated in that case that a quotation therefrom will be sufficient. Division one of this court said:
“ ‘Counsel contend this discloses the release was signed “under threats and coercion,” and “is absolutely void, and gives the defendant no rights whatever before suit brought or afterward.”
“ ‘(a) * * * Ordinarily duress renders a contract voidable, not void, and the same duty arises to put the other party in statu quo before avoiding the contract as exists in cases of fraud in the treaty. Wood v. [Kansas City Home] Telephone Co., 223 Mo. [537], loc. cit. 563, 564, 123 S.W. 6; Bushnell v. Loomis, 234 Mo. [371], loc. cit. 381, 382, 137 S.W. 257, 36 L.R.A.(N.S.) 1029. * * *
“‘(b) Upon the same evidence appellant contends the release was fraudulently procured, and therefore no tender was necessary. Before the rule requiring tender before suit becomes applicable there must be a release. If the instrument or agreement relied upon never existed in fact or is void at law, no tender can be required. Fraud in the factum renders the contract void, and no tender is necessary. Fraud in the treaty renders it merely voidable, and, absent some other ground dispensing with the rule, tender is prerequisite to an action on the original cause. Malkmus v. [St. Louis Portland] Cement Co., 150 Mo.App. [446], loc. cit. 453, 454, 131 S.W. 148; Putnam v. Boyer, 173 Mo.App. loc. cit. [394], 398, 158 S.W. 861 et seq.; Althoff v. [St. Louis] Transit Co., 204 Mo. [166], loc. cit. 170, 102 S.W. 642; Och v. [Missouri K. & T.] Ry. [Co.], 130 Mo. [27], loc. cit. 46 et seq., loc. cit. 69, 31 S.W. 962, 36 L.R.A. 442 et seq.; Wessel v. William Waltke & Co., 196 Mo.App. [582], loc. cit. 592, 190 S.W. 628 et seq.; Reid v. [St. Louis & S. F.] R. R. [Mo.Sup.] 187 S.W. [15], loc. cit.
17. The testimony appellant relies upon has no tendency to prove the release was signed in ignorance of its contents, fraudulently induced by respondent.’ ”

The opinion then held that the opinion of the Kansas City Court of Appeals, in holding that the plaintiff was not required to tender back the consideration obtained for the release, was in conflict with the controlling decisions of the Supreme Court, and the Kansas City Court of Appeals’ opinion was quashed.

In Watson v. Bugg, 365 Mo. 191, 280 S.W.2d 67, 69, 53 A.L.R.2d 743, the court said:

“As to the rescission of contracts of settlement or release on the ground of fraud, and the essentiality of a tender — in this State there is a distinction between fraud in the factum or the execution and fraud in the treaty or the inducement as to the requirement of restoration or tender of restoration of the consideration for a release. Fraud in the factum renders the contract void, and no tender is necessary. Fraud in the treaty (as was alleged in the amended petition in this case) renders it merely voidable, and absent some other ground dispensing with the rule, tender is a prerequisite or condition precedent to the avoidance of the release and to the maintenance of an action on the original claim or cause of action. (Citing cases.) The instant action upon an un-liquidated claim for damages was not within an exception to the rule of es-sentiality of a tender.”

This court, in Thomas v. American Automobile Underwriters’ Agency, Mo.App., 5 S.W.2d 660, 1. c. 661, said:

“It is the general rule, applicable to all contracts, with the possible exception of insurance contracts, that a party seeking the avoidance of his contract ab initio, either at law or in equity, must tender the return of what he has received under it, even though the avoidance is sought on the ground of fraud. The rule is not founded on any solicitude for the fraud-feasor, but on the iniquity of allowing a party to repudiate his contract while holding onto the benefits received under it.”

In discussing this question in 1869, Judge Bliss of our Supreme Court clearly stated the rule in Jarret v. Morton, 44 Mo. 275, 277:

“But the plaintiff finds the note less than he expected, and complains that he was deceived. And what does he do? Does he at once, upon discovery of the deception, look up the defendant, and repudiate the settlement? Not at all. But he holds on to the price of the settlement, collects the note, pockets its proceeds, and still treats the claim as never having been adjusted. This the law will never permit. If the plaintiff would repudiate the settlement, he must put the other party in the same condition he was before it was made. He cannot appropriate its benefit and deny its obligation. There never was but one doctrine upon this subject; and the books are full of decisions that if a party would rescind a contract for fraud or other cause, he must, so far as in his power, put the other party in the condition he would have been in had the contract not been made. Before commencing proceedings on his original claim, the plaintiff should have tendered back the note he received of defendant — should have repudiated the settlement — and then he would have been at liberty to impeach it, if set up against his claim.”

The defendant claims error on the part of the trial court in admitting parol evidence to vary the terms of the unambiguous release. It is not necessary for us to decide that question. However, since plaintiff in his reply had pleaded duress, misrepresentation and fraud to avoid the release, the trial court cannot be charged with error in admitting parol evidence concerning the release, for mistake, fraud and surprise furnish exceptions to the parol evidence rule, and in such cases parol evidence is admissible. Parol evidence may, in a proper mode and in proper limits, be admitted to vary written instruments, upon the grounds of mistake or fraud. Employers’ Indemnity Corporation v. Garrett, 327 Mo. 874, 38 S.W.2d 1049.

No case of duress, misrepresentation or fraud having been made, the defendant’s motion for a directed verdict should have been sustained. The judgment is reversed and the cause remanded with directions to the trial court to enter a judgment for the defendant St. Louis Public Service Company.

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


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James McKISSIC, Appellant.
    No. 49067.
    Supreme Court of Missouri. Division No. 2.
    June 11, 1962.

      Richard F. Koch, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James P. Jouras, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

James McKissic has been found guilty of robbery in the first degree. There was a charge and finding by the court of a prior felony conviction and, therefore, the appellant was sentenced to seven years’ imprisonment.

These were the circumstances of the robbery : About 7:30 a. m., on December 24, 1960, Fred Grenzer opened his employer’s liquor store, the Martin Liquor Store at 5307 Easton Avenue. In about fifteen minutes McKissic entered the store, as he often did, and purchased a bottle of wine. Almost immediately Robert Williams entered the store “with automatic revolver and told me to move on,” threatening to put Grenzer in the icebox. Williams pointed the gun at Grenzer from beneath McKissic’s arm and while in this position Trosper Reese entered the store and took $32 from the cash register. At the direction of Williams, Grenzer, together with McKissic, entered the washroom and Williams, Reese and another man outside the door, Moore, left. According to Grenzer the unusual thing about McKissic was that he was quite talkative when he entered the store, during the holdup the robbers did not say anything to McKissic, and when he wanted out of the washroom McKissic said, “ ‘Don’t go out, you are liable to get hurt.’ ” The washroom was very small and McKissic stood in front of Grenzer and would not get out of the door, “I even pushed him out of the way and went out,” and almost immediately the police arrived. McKissic remained and as Grenzer described Williams and Reese, “was disputing some part of the description I gave.” The next time Grenzer saw Mc-Kissic was on January 15, 1961, at the Page Boulevard police station. Grenzer “simply told him I wanted to know the truth, and that’s what he told me.” Mc-Kissic started off by saying that “he didn’t want to put the finger on anybody,” and then he said that the night before, at Williams’ house, “they had framed up this robbery.” McKissic was to enter the store and buy the wine and Williams was to follow and stage the holdup. The following morning McKissic, Williams, Moore and Reese rode in Williams’ automobile to a vacant lot across the street from the liquor store and the robbery was committed. After leaving the liquor store McKissic went to the Williams’ residence at 5569 Cabanne and Sally Williams gave him $8 “as his share.”

In these circumstances, in a substitute information (V.A.M.S., Sec. 545.300), Mc-Kissic was charged with robbery in the first degree. V.A.M.S., Sec. 560.120. After alleging the prior conviction, the information alleges that on December 24, 1960, McKissic “with force and arms, by means of a dangerous and deadly weapon, to-wit; a pistol, in and upon one Fred J. Grenzer feloniously did make an assault; and the said Fred J. Grenzer in fear of an immediate injury to his person, then and there feloniously did put; and by force and violence to his person thirty-two dollars * * feloniously and violently did rob, steal, take and carry away ⅜ * This information directly charges McKissic with robbery in the first degree. State v. Moore, Mo., 347 S.W.2d 195. The state has misconceived the point made for appellant by his court-appointed counsel, after the prosecutor’s opening statement counsel objected that the information charged “this defendant as a principal,” that he was not charged “in conjunction with other persons,” and that the proof, as stated by the prosecutor, would not support the information. Aside from the fact that “No assignment of error respecting the sufficiency of the information” is necessary (Sup.Ct. Rule 28.-02, V.A.M.R.), in his motion for a new trial the appellant makes the point that this information does not fairly apprise him of the nature of the accusation in that it charges that he acted personally and did not allege conspiracy or that he acted with others. It was said that failure to charge him as an accessory rather than as a principal and trying him on that theory did not properly apprise him of the nature of the charge and that in that connection the court erred in not limiting the testimony of Grenzer and the police officers “to the words and actions of the defendant alone” and permitted them to relate the actions and statements of others involved in the offense.

While a statute plainly provides that if two or more persons commit an offense they shall be jointly charged, failure to join them does not invalidate the indictment or information: “When two or more persons are charged with having committed an offense jointly, all concerned shall be included in one indictment or information, but the failure to so join them shall not invalidate the pleadings.” V.A.M.S., Sec. 545.140. The rule reads, “All persons charged with the joint commission of an offense may be included in one indictment or information.” Sup.Ct. Rule 24.05. But in connection with the rule and the statute there is another statute that has been in force since 1825, “Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.” V.A.M.S., Sec. 556.170; State v. Jones, 339 Mo. 893, 98 S.W.2d 586. Here, according to Mc-Kissic’s statement as testified to by Grenzer, the jury could reasonably find a conspiracy (State v. Mangiaracina, Mo., 350 S.W.2d 796), the appellant was present and in the circumstances he was an accessory before the fact, if not a principal, and he could have been jointly charged with the others (State v. Roderman, 297 Mo. 143, 248 S.W. 964) or as an aider or abettor (State v. Herman, Mo., 280 S.W.2d 44), and it was permissible to charge him alone with having committed the offense and the fact did not unfairly infringe his right “to demand the nature and cause of the accusation,” Const.Mo.1945, Art. 1, Sec. 18(a), V.A.M.S. State v. Moore, Mo., 347 S.W.2d 195; 42 C.J.S. Indictments and Informations §§ 157— 158, pp. 1104-1106.

The conspiracy continued to the division of the proceeds of the robbery (State v. Costello, Mo., 252 S.W. 727, 729), and the briefly noted circumstances support the jury’s finding of the appellant’s guilt as charged. State v. Tripp, Mo., 303 S.W. 2d 627. Furthermore, in these circumstances it was not necessary to show that McKissic personally committed all the acts constituting the elements of the offense, the acts of his coconspirators were admissible against him, and in connection with the principal charge the court did not err in giving the jury the conventional, abstract instruction on acting in concert with others with a common intent. State v. Johnson, Mo., 347 S.W.2d 220; State v. Mangiaracina, supra.

The appellant did not give a written statement or confession and it does not appear until after the opening statement by the prosecutor whether the defendant and his counsel were aware of the fact that after his arrest “this defendant gave details of his implication in the robbery.” If appellant’s counsel had prior knowledge, or even after he became aware of the fact of either a written confession or an oral admission, the usual procedure was not followed, there was no request for the court to determine preliminarily whether any confession the appellant may have made was voluntary or involuntary. State v. Di Stefano, Mo., 152 S.W 2d 20; State v. Green, Mo., 236 S.W. 2d 298, 300. When Grenzer started to repeat what McKissic had said to him at the police station there was a request “to have hearing as to that prior to the time the testimony goes in.” But counsel’s statement was that McKissic was not a “very clear thinker,” that he was usually under the influence of alcohol and wine, that he was picked up at night and in custody and counsel thought “the circumstances of the case at the time he made these confessions should be revealed.” When it was stated' that there were no written confessions, the quoted objection was overruled. Grenzer then gave the indicated testimony and there were no further objections or requests-directed to the involuntariness of any admission or confession McKissic may have made. In cross-examining Grenzer it was-developed that there were no “promptings-from me” as to what he should say, — “I wanted to know the truth, and that’s what he told me.” He said that McKissic was-not “hazy” or drunk, that Officer Moriarity was present but did not question him at that time and made no suggestions.

When Officers Moriarity and O’Brien-testified there were no objections or requests with respect to their direct examinations. When asked what he (McKissic) said, Moriarity testified: “At first he denied being implicated in the robbery, and then-after questioning, telling him we had information that he was implicated in it, he admitted it, and we took him to the City Jail, where we confronted him with Andrew Moore (the lookout), Robert Williams (with the gun) and Trosper Reese (who took the $32). He identified all three subjects as being his accomplices in the robbery of Martin’s Liquor Store. And at that time Andrew Moore identified him as being his accomplice in the robbery of Martin’s Liquor Store.” These officers were cross-examined as to McKissic’s arrest; he was arrested on the night of January 14 by officers other than Moriarity and O’Brien, but he was not examined by the officers until the next morning at 10:45. There were no threats, they talked to him about 20 minutes, told him what they had and took him to the city jail “for purposes of identification.” Grenzer’s conversation with McKissic was before they took him to the jail. When McKissic testified he told about entering the store and buying the wine, he related the events of the robbery in which he said he was merely an innocent b}'stander. He said that he did not “confess this crime” to anyone and did not get $8 of the proceeds of the robbery. He did not claim that he was mistreated or even that he was unfairly interrogated by the police, he simply denied that he had anything to do with the robbery and denied admitting to any one that he had.

If a confession is involuntary as a matter of law the fact may be declared by this court. State v. Bradford, Mo., 262 S.W.2d 584, 586; State v. Ramsey, 355 Mo. 720, 727, 197 S.W.2d 949, 954. The mere fact, however, that the appellant was in custody and was questioned by Grenzer and police officers does not render his statements involuntary (State v. Pillow, Mo., 169 S.W.2d 414, 417), and these two facts are the only possible circumstances upon this record. There is no evidence that he was drunk, or that he was mistreated or overreached in any manaer, even the appellant did not claim any kind of mistreatment or imposition. Thus in the circumstances of this record there is no basis or foundation for the claim that his admissions or confessions were involuntary and that therefore their admission in evidence infringed his rights “in contravention to the Fourteenth Amendment to the Constitution of the United States.” State v. Ramsey, supra; State v. Statler, Mo., 331 S.W.2d 526.

There are four assignments of error directed to the conduct of the prosecuting attorney: (1) that prior to and during the trial it was apparent, by reason of their contacts in prior years, that the state’s attorney was motivated by personal animosity and vindictiveness, (2) that the court erred in overruling defendant’s objections to the prosecuting attorney’s recalling the defendant after the case had been closed for further cross-examination, (3) that the court erred in refusing to restrict the scope of the cross-examination to matters testified to by the defendant on his direct examination, and (4) that the court erred in refusing to declare a mistrial when the state’s attorney made reference to the defendant’s financial condition and need for money.

As to the first assignment, there is no necessity here for a homily on the duty and conduct of a state’s attorney, in general his obligations in prosecuting criminal offenses are set forth in 23A C.J.S. Criminal Law § 1081, p. 78. Aside from the lack of detailed specification and application in the first assignment (Sup.Ct. Rule 27.20), the record does not plainly support the general assertion of personal animosity or of vindictiveness on the part of the assistant prosecuting attorney. There may have been an excess of zeal in some respects, but the mere fact of their prior encounters and contacts, particularly in the prosecutor’s official capacity, does not establish personal animosity or an infringement of the prosecutor’s obligations. 24 C.J.S. Criminal Law §§ 1441-1442, pp. 55-68. So also as to his recalling the defendant for further cross-examination after the close of the case, the assignment is lacking in specificity, alleging only that information similar to that previously brought out was further developed and had an “unduly serious impact upon the minds of the jurors,” especially since the incident was just prior to the closing arguments. Since it is not rebuttal evidence and violates the usual order of trial (V.A.M.S., Sec. 546.070(3)), it may be inadvisable for the state to recall a defendant for the sole purpose of further cross-examination after the case has been closed, but, since he was a witness (V.A. M.S., Sec. 546.260) that too is a matter within the discretion of the trial court. 15 L.R.A. 669, 674; 2 Ann.Cas. 248 ; 58 Am.Jur. (Witnesses), Sec. 561, p. 313; 23 C.J.S. Criminal Law § 1056b, note 42(2), p. 1237; State v. Kennade, 121 Mo. 405, 26 S.W. 347. In connection with the court’s discretion the problem arises upon the nature and character of the questions asked rather than upon the mere fact of being recalled. There was one improper and uncalled for statement by the prosecutor (“He said he didn’t know him (Robert Williams) and now he said he did. I impeached him.”), but there is no assignment in the motion relating to the character of the examination.

As to the scope of a defendant’s cross-examination, these are the relevant statutes: “(E)xcept where a defendant in a criminal case is testifying in his own behalf,” a party to any cause, civil or criminal, is entitled to cross-examine any witness (V.A.M.S., Sec. 491.070), the limitation is that a defendant testifying on his own behalf “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” V.A.M.S., Sec. 546.260. It is not necessary to a disposition of this appeal to collect and analyze the cases or to consider the history and rationale of the statutes (State v. Pierson, 331 Mo. 636, 56 S.W.2d 120; State v. Scown, Mo., 312 S.W.2d 782, 786-787), it is sufficient to say that when a defendant exercises his right to testify and enters a “sweeping denial” to the charge, the state is not confined to a mere categorical review or reiteration of the matters covered on direct examination but may cross-examine as to “all matters within the purview of the direct examination.” State v. Scown, supra; State v. Brown, Mo., 312 S.W.2d 818. The appellant asserts that here the state’s attorney “flagrantly went outside of those areas” covered by the direct examination “for the purpose of prejudicing the defendant’s case in the eyes of the jury.” To illustrate, it is said that the cross-examiner “delved into” his past and present employment record, his friendships and personal relations, sources of funds and income and arrests for which there were no convictions.

In his direct examination the appellant testified to his presence in the liquor store for the purpose of purchasing the wine. In substance he described the robbery as Grenzer described it, and he told about talking to the police. But, as indicated, he said that he did not confess to anyone that he was a participant in the robbery. He testified to his prior burglary conviction in 1957 in which he was sentenced to two and one-half years’ imprisonment but was placed on probation. Then he said that he fulfilled his probation “in good form.” In the first place, he was subject to being impeached by proof of prior convictions as any other witness. V. A.M.S., Sec. 546.260. In this connection, it is not, as a general rule, permissible for the state to inquire about or show mere arrests, charges or indictments. State v. Rumfelt, Mo., 258 S.W.2d 619; State v. Wigger, 196 Mo. 90, 98-100, 93 S.W. 390, 392. The only question along this line was “Weren’t you arrested for parole violation in 1958?” This, obviously, related to his direct examination and his claim that he had observed his parole in “good form.” There was an objection to this question but, the court, evidently, said, “Confine it to the convictions,” and the subject was not pursued. In addition to the burglary, he was asked and admitted that he had been convicted of malicious destruction of property (V.A.M.S., Sec. 560.395) and nonsupport of his children (V.A.M.S., Sec. 559.350), for which he had received jail sentences of thirty days and six months. But in Missouri, unlike some other jurisdictions (Lawrence v. United States, 8 Cir., 18 F. 2d 407), convictions of misdemeanors, as well as of felonies, may be shown as affecting credibility. State v. Bagby, 338 Mo. 951, 962-963, 93 S.W.2d 241, 247; State v. Blitz, 171 Mo. 530, 71 S.W. 1027.

It is not necessary to the preservation of a defendant’s rights under the statute that he object to every question asked on cross-examination (State v. Nicholson, 337 Mo. 998, 87 S.W.2d 425), but the inquiries must be clearly outside the scope of the direct examination and they must constitute more than mere “technical violation” (State v. Mastin, 277 Mo. 495, 211 S.W. 15), and they must relate to some material matter manifestly prejudicial to substantial rights. State v. Pierson, supra; State v. Barrie, Mo., 199 S. W. 136. McKissic was asked where and how he had recently been employed and how much money he had earned. He said that he had done some decorating for which he had received $8 a day for three days’ work. But this question related to his direct examination and his ability to purchase wine almost daily. He was asked whether one of the robbers had a gun, particularly which one, but that too related to his direct examination and his description of the robbery. He said that he was personally acquainted with Reese, knew Moore by sight, but he could not say which of the robbers was Williams. There was one question (“Are you married? A. I am divorced.”) that does not seem particularly relevant, he had not testified to any matter that would call for his impeachment on that score. Compare: State v. Myers, 221 Mo. 598, 612, 121 S.W. 131, 134; State v. Ferguson, Mo., 183 S.W. 336; State v. Krauss, Mo., 177 S.W.2d 699. While the question may have been a “technical violation” of the statute, it was not so manifestly inflammatory as to compel the granting of a new trial. State v. Cooley, Mo., 221 S.W.2d 480, 486.

The appellant was not represented by counsel upon this appeal and for that reason questions not required to be presented in a motion for a new trial have also been examined and the transcript shows compliance with all matters necessary to be considered by the court upon the record before it. Sup.Ct.Rule 28.02. Accordingly, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner.

text:
    Garland Eugene ADAMS and Mary Elizabeth Adams, Respondents, v. Rue Finley MASON and Minnie J. Mason, Appellants.
    No. 49167.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.

      Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, for appellants.
    Blackford, Imes, Compton & Brown, J. William Blackford, Kansas City, for respondents.
   COIL, Commissioner.

This is the second appeal of this case. The first, Adams v. Adams, Mo., 294 S.W. 2d 18, was dismissed as premature for the reason that the judgment appealed from was interlocutory and not final in that it provided for an accounting which had not been accomplished. The case was returned and a referee heard evidence on certain issues as had been directed by the trial court’s modified interlocutory decree and filed his report. Defendants’ objections and exceptions thereto were overruled, and a final judgment was entered from which defendants Finley Mason and Minnie, his wife, have appealed.

As noted by this court on the first appeal (294 S.W.2d 19), the action instituted below was one by which, among other things, plaintiffs sought to establish an interest in described farm land (hereinafter sometimes called the farm) and to obtain an accounting of a 16-year partnership farm operation. The trial court had adjudged: that plaintiffs were the equitable owners of one half the farm (187.375 acres) subject to certain charges; that plaintiffs could acquire additional (adjoining) land from appellants at a specified price; that plaintiffs were entitled to an accounting of the partnership and to a determination of the amount of any encumbrances against the land. The case was sent to a referee for an accounting of the partnership operation and for a determination of the questions pertaining to the encumbrances which had been against the farm. The referee’s report found that the land in question was free of encumbrance and that there was due plaintiffs from defendants the sum of $20,633.91 as a result of the partnership operation. The trial court thereafter “accepted and adopted” the referee’s report and adjudged that defendants were entitled to a further credit in the sum of $4,327.28 ($2,710.28 charges against the 187 acres and $1,617.00, the cost of the additional land) and entered a final judgment that plaintiffs were the fee simple owners of the described 187.375 acres and of an additional 27.5 acres, and entered a money judgment in favor of plaintiffs and against appellants in the sum of $16,304.63.

Hedge Bland Adams and William Adams, brothers, became the owners of the family farm (about 375 acres) pursuant to the provisions of their father’s will. They jointly operated the farm under arrangements not here involved. Both Hedge and William were married, but at some time prior to November 1933 Hedge’s wife was in a hospital as a person of unsound mind. In May 1932 William and his wife, Hedge, and Mattie, the mother of William and Hedge, gave a deed of trust to a bank to secure a $16,000 note. By warranty deeds in October and November 1933 Mattie, the mother, conveyed all her interest in the farm to her sons Hedge and William. At the November 1933 term of the Clay County Circuit Court, William and his wife filed a partition suit against Hedge and his wife, joining the trustee and the bank. A guardian ad litem was appointed for Hedge’s wife. Hedge filed an entry of appearance and consent to trial, and the court, after hearing the evidence, ordered partition, a sale of the land, and distribution of the proceeds. William, the partition plaintiff, bid in the farm for $32,000. The sheriff’s report indicated distribution of the proceeds (after payment of the costs and of the $16,-939.55 indebtedness to the bank) in equal shares to William and Hedge, $7,300.54 each.

There was no satisfactory evidence explaining the circumstances of the partition proceedings. There was the fact that Hedge’s wife was of unsound mind and there was the isolated and unamplified statement in the testimony of Hedge that the $7,300 shown as his distributive share was not received by him. In any event, on February 10, 1934, the sheriff conveyed the farm to William. On February 23, 1934, William and his wife executed two deeds of trust on the farm, a first to the same bank which had held the above-mentioned $16,-000 deed of trust, to secure an $11,200 note, and, on the same day, a second to an individual securing a $5,618 note. On April 1, 1934, William and his wife gave a first deed of trust on the farm to the Federal Land Bank of St. Louis to secure a loan of $15,-000 and a second to the Land Bank Commissioner to secure a loan of $4,000. Those deeds were acknowledged on April 10, 1934. On April 30, 1934, the deeds of trust which shortly before had been given the bank and an individual were released of record and the notes cancelled. On July 25, 1938, William and his wife, by their warranty deed acknowledged July 29, 1938, conveyed the farm to their son-in-law and their daughter, Finley Mason and his wife Minnie, the present appellants (who, along with William, Minnie’s father, were the defendants below) . On the same day, July 29, 1938, Finley and Minnie, as first parties, entered into a “contract” with Hedge Bland Adams, his son Garland Adams, and Garland’s wife Mary, as second parties. On that same day. July 29, 1938, Finley Mason, William Adams, Hedge Adams, and Garland Adams entered into a partnership agreement for the operation of the farm.

We have noted that Finley Mason and his wife and William Adams were the defendants below; the other parties to the “contract,” Hedge Bland Adams, Garland, his son, and Garland’s wife Mary, were the plaintiffs below. The “contract” recited that the Masons were the owners of the farm which had been conveyed to them by William and his wife, subject to “existing incumbrances of record”; that the Masons had theretofore advanced $3,420.56 to William and Hedge, used by them to pay principal and interest on the “incumbrances” against the farm and for taxes, living expenses, and other purposes; that second parties had requested the Masons, and the Masons were willing, to convey one half the farm to Garland and his wife, and the Masons agreed to convey to Garland and his wife one half (187.375 acres) of the Adams farm at any time during the lifetime of either Garland or his father, Hedge, when either Garland or his wife Mary paid to the Masons the sum of $1,710.28 (one half the above-mentioned advance of $3,420.56) plus five per cent interest from date and paid all sums that might thereafter be expended by the Masons for the benefit of Hedge and Garland and Mary, plus five per cent interest on any such expenditures. It was agreed that one half of any sums expended by the Masons for the purpose of paying principal or interest on the encumbrances against the farm or for taxes or repairs and replacements should be considered expenditures for the benefit of Garland and his wife. It was further provided that if and when the payments above mentioned were made, the deed from the Masons to Garland and Mary would be subject to existing encumbrances of record and to a vendor’s lien to secure a $1,000 promissory note, to be executed by Garland and his wife to the Masons, payable in ten years with interest at five per cent. The Masons agreed not to additionally mortgage the land except for the purpose of paying existing encumbrances. It was agreed further that if Garland and his wife or either of them became entitled to the conveyance of one half the farm under the terms of the agreement above set forth, the Masons would sell to them an additional 27.5 acres (adjoining the farm) at a price of $58.80 per acre. The agreement was to terminate at the death of the survivor of Hedge and Garland.

The partnership agreement among Finley Mason, his father-in-law William Adams, Garland Adams, and his father Hedge Adams (executed at the same time as the above-mentioned agreement and on the same day the deed was acknowledged by which Finley and Minnie Mason acquired the record title to the farm) provided for the operation of the Adams farm by the parties as partners; that each, except Finley Mason, would devote his full time to working the farm, which would include the raising of crops and the handling of livestock. The agreement specifically declared that Finley was the owner of the land and that the partners owned some mules and other livestock, an equity in a tractor, and some other farm implements. The partners were to receive the net earnings, or bear the losses, annually in the following proportions : one third to Finley Mason, one third jointly to William and Hedge Adams, and one third to Garland Adams. Necessary expenses incurred in the operation, including the amount of the taxes assessed against the land, were to be deducted from gross earnings to determine net earnings and there was to be an accounting as of January 1 each year or within a reasonable time thereafter. It was provided that the partnership bank account was to be carried as Adams-Mason, that William Adams was to sign the checks, and that the partnership would continue until a partner gave written notice to the others of his desire to terminate the partnership on the date stated in the notice.

Mrs. Garland Adams received a written notice from Finley Mason on April 19, 1954, advising her that he was cancelling all written or oral agreements or contracts which she might consider to be in effect.

Garland and his wife and Hedge, plaintiffs below, each testified that they had never received an accounting. It appears to be undisputed that Mason was to keep partnership books and records. Mrs. Garland Adams testified that the agreement heretofore described as the “contract” was signed by her when Mason brought it to her home and described it as a “mortgage on farm” so they could get some money and asked them to sign it. Garland Adams, who had lived on the Adams farm for 54 years at trial time (his father had lived there continuously for 80 years at trial time), testified that he had worked the farm since he was 15 or 16 years old and that he and Finley and William and Hedge had executed the “contract” at the lawyer’s office where it was explained to him.

As a result of the record evidence heretofore reviewed and the brief testimony mentioned, the trial court, by its modified interlocutory decree, found that the record title to the 187 acres was in the name of Finley and Minnie Mason at the time the “contract” was signed; that the “contract” was in fact a mortgage on the 187 acres which Garland and his wife had given to the Masons to represent a debt owing to the Masons by the Adamses; and that on July 29, 1938, “said mortgage” consisted of the two land bank deeds of trust in the total amount of $19,000; that under the terms of those deeds of trust the Masons were required to pay the taxes and keep the buildings insured; that the two deeds of trust were paid on May 6, 1942; that the Masons made certain payments of principal and interest on the two deeds of trust, the exact amounts of which were to be determined by the referee. The trial court also found that a farm partnership had existed since July 29, 1938; that no accounting had been rendered to the plaintiffs by defendants; that the papers and books had been kept by defendants in their possession and under their control; and that a demand for an accounting had been made by plaintiffs. The trial court directed a referee to hear the issues relating to an accounting of the farm operation and relating to the matters pertaining to the land bank deeds of trust.

The referee conducted hearings in March and July, 1957. After brief testimony by Garland and his wife, the defendants, apparently conceding that Finley Mason had assumed the duty to keep partnership books and records and was obligated under the court’s interlocutory decree to furnish the other partners with an accounting of the farm operations from July 1938 through 1954, produced as a witness a certified public accountant, Mr. Fleet, who had handled Finley Mason’s accounting for the past several years. He testified that Mason operated the Mason Motor Company and the Mason Tractor Company at Platte City and engaged in various farming operations; that the witness had handled Mr. Mason’s tax returns since 1935 except for three years, and was generally familiar with Mason’s operations; that during the year just prior to his appearance on the stand he had been asked to prepare an accounting of the operation of the Adams-Mason farm. For that purpose he was furnished by Mr. Mason with a great volume of data, consisting of Mason’s cancelled checks, bank statements, invoices, paid bills, some statements, and cancelled checks drawn on an old account of William Adams, and that he, the witness, had some old records which he had kept which had some connection with the matters in question; that from the data furnished he prepared a statement of the income and expenses of the farm operation, including part of 1938 through 1954. (The voluminous data were not in evidence and, of course, are not here for our examination.) The statement which he prepared constituted defendants’ Exhibit A, which consisted of five separate schedules. As a result of cross-examination by plaintiffs and inquiries by the referee, a subsequent statement, identified as defendants’ Exhibit B, was prepared; that exhibit purported to reflect certain matters in more detail and to correct certain errors which the witness conceded existed in Exhibit A. For present purposes, however, the two exhibits, in combination, ■ constituted defendant Mason’s proffered accounting, not only of the farm operations under the 1938 partnership agreement but as to the matters connected with the land bank deeds of trust.

We shall first treat with the issues which have to do with the ownership of the 187 acres (one half the farm) described in the “contract.” The record evidence, although unexplained in many details and incomplete and, in part, unsatisfactory, nevertheless makes it abundantly clear that whatever may have been the arrangement or exact agreement between the brothers, Hedge and William, it was their intention that the beneficial title to one half the farm remain in Hedge. Thus, it seems equally clear that Finley Mason and his wife held the legal title to the farm on the date of the “contract,” subject to and in full recognition of Hedge’s one-half interest which Hedge, by the “contract,” effectively transferred to his son Garland and Garland’s wife. The “contract” provision that Finley Mason had paid a certain amount of money on the principal and interest of encumbrances of record on the farm “for the benefit of the said William W. Adams and Hedge Bland Adams,” was an unmistakable recognition of the fact that after the partition sale, although legal title to the farm was in William, Hedge continued to own one half. It is significant also in that respect that none of the money, so far as the “contract” disclosed, which was to be paid by Garland Adams to Finley Mason as a condition to a conveyance of Hedge’s one half to Garland was a payment for one half the farm; on the contrary, the money Garland was to pay (at least in large part) constituted one half the sums which Mason had advanced as payments on encumbrances against the farm for the benefit of William and Fledge. As we see it, therefore, the record evidence establishes without serious doubt that as between the brothers, William and Hedge, despite William’s purchase of the land at the partition sale, beneficial title to one half the farm remained in Hedge and when William conveyed the legal title to the farm to his son-in-law and daughter, the simultaneously executed “contract” recognized that Hedge owned half the farm; and it was the intention of the parties through the “contract” to convey Hedge’s title to one half to his son and his son’s wife, who, in turn, agreed that their designated one half would secure an indebtedness to the Masons in the sum of $2,710 with five per cent interest, payable at any time during the lifetime of the survivor of Hedge and Garland, and would secure the payment of one half of any future expenditures on the farm by Mason and would secure the payment of one half the existing encumbrances (the land bank deeds of trust). See Cooper v. Newell, 263 Mo. 190, 197, 172 S.W. 326, 328 [1],

As we have noted, the Federal Land Bank and the Land Bank Commissioner’s deeds of trust were executed in April 1934. The first deed of trust provided for regular payments of principal and interest over a period of 35 years beginning on December 1, 1934, and the second deed of trust provided for regular payments of principal and interest over a period of ten years beginning on the first day of December 1937. Both deeds provided for the payment of taxes and insurance by the mortgagor. Both the secured notes were paid and the deeds of trust satisfied on May 6, 1942. There is no satisfactory evidence in the record as to what the total amount due on the land bank deeds of trust was on the date of the execution of the “contract,” nor as to whether payments “as due” had been made during the period from July 29, 1938, the date of the “contract,” to May 6, 1942, the date of the payment of the land bank notes, nor as to the amounts of the payments or by whom such payments were made; and there is no substantial evidence as to whether the money for any payments which may have been made came from the proceeds of the partnership operation of the farm.

Mrs. Garland Adams testified before the referee that the payments under the two Sand bank deeds of trust were to be made from the proceeds of the farm, but she did not know whether such was done. The accountant, as part of Exhibits A and B, indicated on a December 31, 1954 balance sheet for Finley Mason, that the original cost of the farm was $21,275.37, and on another schedule indicated Federal Land Bank loans in the sum of $22,098.06. The referee, in analyzing the accountant’s testimony and Exhibits A and B, pointed out that there was no evidence to indicate that the existing encumbrances, that is, the land bank deeds of trust, amounted to $21,-275.37 on the date the “contract” was executed. The referee also correctly pointed out in his report that during the hearing he had called defendants’ attention to the lack of evidence as to the matters pertinent to the land bank loans, such as when and in what manner the principal and interest were paid. The record shows that counsel for defendants indicated to the referee that during the interval between the first and second hearings, an investigation would be made of the records at the Federal Land Bank in St. Louis so that accurate detailed information could be supplied to answer the many questions relating to the details as to the payment of those loans. No such evidence was ever adduced and, as a result, there was a total failure of proof as to the manner of payment of the land bank deeds of trust. The referee’s report assumed that payments were made thereon when due and thereby arrived at an amount which he considered as the amount of the existing encumbrances at the date of the “contract.” The referee also found that the encumbrances should have been paid from the profits of the farm operation and he therefore deducted the total assumed amount from the net profit figure at which he had arrived. In view of the fact that we are forced to remand this case because of other matters, we shall not assume that information will not be available on a rehearing to permit accurate conclusions on this aspect of the case. In that connection, we observe that it appears that plaintiffs should be charged with one half the total amount of principal and interest which Finley Mason and his wife personally paid (i. e., paid by money derived from a source other than funds accruing from the partnership operation) to discharge the land bank indebtedness during the period from July 29, 1938, to and inclusive of May 6, 1942. If satisfactory proof is not adduced by defendants Mason that payments from personal funds were made and the amounts thereof, then the inference is justified that the land bank encumbrances were paid by money derived from the gross receipts of the farm operation and that those payments were or should have been charged as a partnership expense.

In connection with the matter of the payments to be made by Garland Adams provided for in the contract, we should observe that (assuming the validity of the July 1938 agreement in the light of a further agreement dated in December 1944, a matter we shall hereinafter discuss) the trial court correctly adjudged that Garland Adams and his wife are the owners of the additional 27.5 acres described in the “contract,” upon paying or being debited therefor at the price of $58.80 per acre.

The “contract” provided that five per cent interest was to accrue on the $2,-710.28 (one half of $3,420.56 plus the $1,000 note) to be paid by Garland Adams and his wife to the Masons. The referee was of the opinion that he had nothing to do with that item and so reported. The trial court, after adopting the report of the referee found that the Masons were entitled to an allowance of $2,710.28 by reason of the items heretofore noted but made no reference to the matter of interest as provided in the “contract.” Both Garland Adams and his wife Mary testified that beginning in 1944 they had tried to ascertain from Finley Mason the amount of their indebtedness and to make arrangements to pay it; that Mason had failed to satisfactorily answer their inquiries or to cooperate or to permit them to proceed to make arrange-merits by loan or otherwise to discharge whatever their obligation was. It is true that the witnesses spoke specifically of mortgage indebtedness but their testimony justifies the inference that they were attempting to ascertain the amount of their total indebtedness, including mortgage indebtedness, in order that there might be a division. In the absence of other evidence, including an explanation of the “1944 contract” to which we shall again refer, which would affect the question, we are of the opinion that equitably the Masons are entitled not only to be credited with the principal sum of $2,710.28 but also with five per cent interest on that sum for a period of six years, 1938 through 1944.

We now consider the partnership accounting. While the plaintiffs, Garland and Mary Adams, testified that they kept no records during the period 1938 to 1954, and while, as we have noted, it was clear from all the evidence that Finley Mason either had the duty to or assumed the duty to handle the business end of the partnership and thus to keep proper records thereof, it is also abundantly clear from all the testimony, including the plaintiffs’ and that of defendants’ sole witness, the certified public accountant, that there were in fact no partnership books or records kept which reflected the transactions of the partnership operation of the farm. Mason (although the record discloses he was present at least at one of the hearings before the referee) did not testify. He not only failed to explain why there were no partnership books or records from which an accurate partnership accounting could be made, but he failed to identify or testify as to the validity of the data which were used by the accountant in an attempt to piece together an accounting; nor did Mason furnish evidence that the checks, invoices, bills, etc., which he furnished his accountant were properly chargeable as expenses to the Adams-Mason farm rather than to other of his farm ventures. There was evidence that Mason operated at least three other farms as well as an automobile business and a farm implement business, and that most of the checks used by the accountant to substantiate payments of claimed expenses of the partnership in question were Mason’s checks drawn on his personal bank account. As a result, it is at once apparent that the purported accounting submitted by defendants as the work product of Mason’s accountant, who testified as to the manner in which the conclusional figures were produced, could have amounted to nothing more than the unsubstantiated conclusions of the witness based upon certain instruments furnished him by Mason with instructions from Mason, based in part upon Mason’s opinions conveyed to the accountant, and in part upon the “understanding” of the witness as to the partnership arrangements based on his experience through the years.

The referee correctly concluded that the purported accounting made by Mason, which showed plaintiffs indebted to him in the sum of $67,866.66, was so tainted with hearsay as to be of little value. The accountant frankly admitted that it was impossible to render a “good accounting” from the available information; that if, for example, he had been instructed erroneously that the charges for gas and oil used on the farm were not to be partnership expenses but were to be borne by the Adamses alone (and he had been so instructed erroneously), the resulting error would be carried through the entire accounting. In other respects, the accountant, in explaining how he arrived at various figures and conclusions, indicated that there was no demonstrably substantial basis for his figures although it may be that he had done the best he could under the circumstances and under his instructions from Mason.

Counsel for plaintiffs agreed with the referee’s statement during the hearing that it would be impossible for anyone to state an account based on the evidence which had been adduced. Plaintiffs, through their counsel, insisted that they would offer proof of the reasonable rental value of the land and that, based thereon, the referee would be able to make a just and equitable determination of the status of the partnership account. Plaintiffs did introduce some evidence of the farm’s crop yield for the year 1956 and the cost thereof, the amount received for the rent of certain pasture, and the rental value of a house on the farm. But plaintiffs did not pursue their theory to the extent that it was possible for the referee or that it is possible for this court to use their “reasonable rental value” theory as a basis for the statement of an account .among the partners.

The referee fully and carefully analyzed the testimony and particularly the testimony of the defendants’ accountant, as well as the accounting suggested by Exhibits A and B. We have examined the referee’s analysis of the accounting submitted and we agree with his conclusion that defendant Mason failed to properly account. The referee concluded, however, that he could arrive at an equitable result by accepting Mason’s figure representing the total gross receipts from the farm operation as shown on Exhibit B, irrespective of the accuracy of the remainder of the accounting. He did so and then allowed defendants one half the total expenses shown on the profit and loss statement of Exhibit B and, after deducting the amount of an unlisted expense item and of an item found due on machinery, arrived at a balance due plaintiffs of some $20,000. We agree, contrary to appellants’ contention here, that the referee correctly could accept the amount Mason claimed as the farm’s total gross receipts without adopting the rest of the accounting, and we should be willing to so do if by the use of that figure as a starting point we could proceed to arrive at a substantiated conclusion as to the status of the partnership accounts. But we are unable to dis•cover any theory which justifies the conclusion that the farm expenses were in fact about one half the amount of the expenses stated in Mason’s exhibit, nor can we find ■anything indicating that such would be a reasonable estimate of those expenses. We have searched the record in vain for substantiation for some theory which would justify estimating the expenses at one half the amount shown or at some other figure, ■or for a theory on which we may arrive at a figure which represents even an educated “guess” as to the status of the partnership accounts among the parties.

We recognize the fact that the relationship among these partners was a fiduciary one, Schroer v. Schroer, Mo., 248 S.W.2d 617, 619 [1-3], and that Mason’s failure to have kept proper books and records constituted a breach of that relation. We bear in mind that Mason had the duty and burden to render an accurate accounting of the partnership and in so doing he needed to establish not only the accuracy of the records he adduced but he needed also to establish the accuracy of the various accounts, including, of course, the instruments upon which those accounts were based. Bass v. Daetwyler, Mo.App., 305 S.W.2d 339, 345 [15] ; Simich v. Culjak, 27 Wash.2d 403, 178 P.2d 336, 339 [1]; Stephens v. Stephens, 298 Ky. 638, 183 S.W.2d 822, 825 [8]. We are aware also that under the circumstance here, i. e., that Mason failed to discharge his duty in the above-mentioned respects, all doubts and ambiguities connected with his purported partnership accounting should be resolved against him. Glazer v. Kurman, 384 Pa. 283, 120 A.2d 892, 894 [1] ; Moore v. Malis, 292 Ky. 106, 166 S.W.2d 52, 53 [1-4], The difficulty is, that recognizing and applying the foregoing principles and resolving all doubts and ambiguities against Mason does not enable us to arrive at a result. One insurmountable obstacle is that plaintiffs have failed to show, and defendants’ evidence does not show, that a proper accounting among the parties would result in a balance due plaintiffs. For example, plaintiffs’ evidence indicated that at least Garland Adams had received income from Mason most years if not every year from 1939 through 1954. Income tax returns prepared for Garland by the same accountant who testified for defendants indicated that over a period of seven years, from 1948 through 1954, Garland Adams received from Mason, one way or another, an average annual gross income of about $2,800. Furthermore, despite the inaccuracies inherent in and the invalidity of much of the evidence on which Mason’s proffered accounting was based, it appears most likely that many listed expense items were properly chargeable against this farm operation, particularly the large items covering the purchase of cattle and feed; provided, of course, that those items may be directly traced to the farm in question rather than to one of the other farms operated by Mason. We mention the foregoing only to suggest that while plaintiffs have demonstrated the inaccuracy of Mason’s accounting, they have not shown that anything is, or if it is, how much (estimated or otherwise), is due them.

We make it clear, however, that we do not mean that Mason should be able to prevent plaintiffs’ recovering what may be due them simply by failing to have kept books and records, by failing to have accurately accounted, and by remaining silent on matters of which he must have knowledge. And thus we do not mean that plaintiffs had any duty to adduce evidence from which a detailed accurate statement of the partnership operation could be made. It was impossible for them to have done so, due to Mason’s failure to have kept proper records. Plaintiffs needed only to come forward with some evidence which would circumvent the necessity for a detailed accounting but which, nevertheless, would furnish a reasonable basis for an equitable adjustment of the partnership operation. Plaintiffs made no real attempt by expert testimony or otherwise to show what the average net income of that farm should have been during the period involved. It may be that it will be impossible to ever arrive at the status of the accounts among the parties. We are unwilling, however, to make that assumption at this juncture of the case.

We now consider an unexplained document in evidence as defendants’ Exhibit 1, which, if explained, could be decisive on rehearing of some of the matters which have been discussed heretofore. On the profit and loss statement of Exhibit B there appeared a 1944 expense item in the amount of $9,777.37 designated as “purchases.” Asked for an explanation, the accountant said he had obtained that figure from some papers furnished by Mr. Mason and, in substantiation, produced a partnership agreement dated in December 1944 signed by the Masons, William Adams and his wife, Garland Adams and his wife, and Hedge Adams. On pages 2 and 3 it was stated that a certain inventory totaling $9,-777.37, including grain, livestock, and hay, was owned by Mason and that the profit from the use of that inventory was to be disbursed in accordance with another portion of the agreement. While the exhibit was produced solely to explain the $9,777 item, it must be apparent that it purported to be an agreement among the parties for the operation of the same farm which was the subject of the July 1938 agreement. The 1944 agreement provided in detail the method by which the farm was to be financed and operated and contained, among other things, the provision that the Masons agreed to sell to Garland and Hedge Adams at any time during the term of that (December 1944) agreement the same 187.375 acres and the same additional 27.5 acres, all at the price of $87.50 per acre plus the cost of improvements, upkeep, or repairs to said acreage paid for by the Masons prior to any such sale. There was the further provision that the offer to sell at $87.50 per acre would be void at the expiration of the agreement and that the agreement terminated and superseded “all prior agreements either written or oral between said parties,” and provided for termination at any time at the will of any party by written notice. We have heretofore indicated that plaintiff Mary Adams testified that she received a written notice from Mason on October 19, 1954, purporting to terminate all agreements which she (Mary Adams) “might consider in effect.”

Despite the fact that the referee indicated to counsel for the parties the decisive importance he attached to that agreement, which had been brought into the picture so casually and only in substantiation of one figure in an accounting which itself was based upon the prior July 1938 partnership agreement, and despite the obvious questions that at once arose because of and concerning the 1944 agreement, none of the parties showed any inclination below to explain or embrace or explore that document or its effect. The referee concluded that he had erred in admitting the 1944 agreement on the ground that it tended to contradict the trial court’s interlocutory decree based upon the partnership agreement of July 29, 1938, and, consequently, he ignored the agreement except as it explained the accountant’s testimony as to the $9700 item. Strangely enough, even here appellants in their brief, while contending that the trial court erred in adopting the referee’s exclusion of the 1944 agreement for the stated reason that it was evidence of the status of the partnership in December 1944, content themselves with the conclusion that the court “in accepting and approving the report of the Referee in excluding this material exhibit committed prejudicial and reversible error.” They do not, in their brief, take the position that the 1944 partnership “contract” wiped out the necessity for an accounting from 1938 to 1944 or superseded the “contract” with respect to the conveyance of one half the farm. As a matter of fact, defendants admitted the validity of the July 1938 “contract” and that it was in effect in their still current joint answer filed in this case on July 11, 1955. In that answer they averred that plaintiffs’ only interest in the farm was evidenced by an “option to purchase” the 187 acres in question “created by contract dated July 29, 1938.” Furthermore, defendants proceeded before the trial court and the referee by accounting for the period from 1938 through 1954 apparently under the terms of the 1938 “contract,” and in this court take the position that they are entitled to a judgment against the plaintiffs for the sum of $67,000 shown by the accounting based on the period beginning in 1938 and without reference or respect to the terms and provisions of the 1944 contract. Nor is there any present attempt, nor was there any attempt below, to show whether there was any consideration and, if so, what the consideration was, for the cancellation or super-session of the provision in the July 1938 contract providing that Garland Adams and his wife were entitled to receive Hedge’s one half of the farm upon payment of nominal sums at any time during the lifetime of either Garland or his father, Hedge.

Were it not for the fact that we must in any event remand this case, we might well ignore the December 1944 agreement on the grounds that the parties litigant have largely ignored it and that it is questionable whether appellants would be in a position to insist that the 1944 agreement should prevent the final disposition of this case on this appeal. Inasmuch, however, as we are remanding the case, and inasmuch as it is difficult to understand how there may be a just and equitable result without a determination of the validity of and the effect, if any, of the December 1944 agreement, we shall assume that the agreement will be dealt with on remand.

Plaintiff Hedge Adams died in July 1958. After the referee’s report had been filed, the trial court sustained Garland Adams’ motion to substitute himself as his father’s “only son and heir.” Appellants contend the trial court was without jurisdiction to make such substitution because, they say, no attempt was made to revive the action in behalf of Hedge Adams in accordance with the provisions of Section 507.100 RSMo 1959 and V.A.M.S., and that the statutory period for substitution has expired. Civil Rule 52.12 V.A.M.R. (adapted in part from Section 507.100 RSMo 1949, as amended, Laws 1957, p. 293) provides in subparagraph (a) that if “a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties.” In subparagraph (c) the rule provides further that if “the death occurs prior to final judgment and before appeal and substitution or motion therefor is not made within nine months after the first published notice of letters testamentary or of administration, the action shall be dismissed as to the deceased party; * *

It appears that the substitution of Garland Adams as the sole heir of his father was proper in so far as concerns the enforcement of Hedge’s interest in the real estate by virtue of the “contract,” but in so far as enforcing Hedge Adams’ claim to any balance due him by reason of the farm accounting, his executor or administrator would be the “proper party” to be substituted. The record does not show when, if at all, the first notice of letters testamentary or of administration on the estate of Hedge Adams, deceased, was published. (We are advised by respondents, by an outside-the-record statement in their brief, that letters of administration were granted in Hedge Adams’ estate on March 16, 1962.) We may not determine on the record before us whether the time for substitution of the administrator or executor, if any, has expired.

The judgment is reversed and the case remanded with directions to proceed consistently with the views herein expressed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.