author: RUARK, Presiding Judge.

text:
    In the interest of J-, a minor, under the age of seventeen years.
    No. 8052.
    Springfield Court of Appeals. Missouri.
    May 8, 1962.

      Amos Wight, Ewing, Ewing, Ewing, Carter & Wright, Nevada, for appellant.
    Gordon R. Boyer, Lamar, for respondent.
   RUARK, Presiding Judge.

As an all too frequent by-product of a child marriage, this case reaches us as an appeal from the judgment and order of the juvenile court in respect to the custody of a little girl, not quite three and a half years old at time of the hearing.

The facts historically are: J and B were married June 1, 1957. At that time J (herein referred to as the father) was approximately nineteen years of age. B was fourteen. The child was born February 26, 1958. The marriage, as might be expected, was not a success. There is no need to go further with that. Sometime later, J brought his wife and the child to B’s maternal grandfather, in the night, unloaded them, and stated, “Grandpa, I can’t take care of her and keep my payments up on my car,” and left. The grandfather was (at trial time) 77 years old and was unable to care for the child permanently. The result was that she was taken to her (the child’s) maternal grandmother (mother of B), who has since that time had the actual rearing of the child except for occasional overnight or short visits with the grandparents where she was first left.

When the child was 18 months old, B brought suit for divorce against the father. The petition alleged previous separations and marital difficulties, including the use of intoxicating liquor. On October 21, 1959, B was granted an uncontested decree of divorce from the father, with care and custody of the child and $10 per week support money for the child.

The mother was home, with her mother and her child, only off and on. She has, in the meantime, been remarried, had another child (who is with an uncle), and been divorced again. This mother, age 18 at time of trial on July 24, 1961, has demonstrated her present inability and unfitness to have the child. We will not go further with her conduct except to say that this proceeding was instigated when the grandmother (her mother and the one who has had the actual care and rearing of the child) made complaint to the juvenile officers because B had climbed into the cab with a truck driver and headed for Texas.

We return to the father. He did not comply with the order of support. After he was hailed into court on this account, his support payments were reduced to $7 per week. He paid approximately seven installments. In a letter addressed to his ex-wife’s attorney in respect to his failure to meet his obligations as a father he seems to indicate some doubt as to parentage. He refers to the little girl as “that kid,” and he states that “I’m not going to pay for something that I don’t own.” His contact with the child has been slight. On one occasion he came to the home of the maternal grandmother but got into some kind of a disturbance, was arrested, and paid a fine for disturbance of the peace. At another time he, and his new wife, called at the maternal grandmother’s home and left her $20 for the child at Christmas. This seems to have been about his only contact with the child or indication of interest in her up until the time these proceedings were filed. Then he came into the circuit court with a motion to modify the divorce decree, asking custody “and that all unpaid child support payments to plaintiff * * * be cancelled and forgiven.”

Now let us look at the other side of the father’s picture. He is now 23 years old. He has been employed in an industry in an adjoining state for “going on” five years. He makes take-home pay of $75 or $80 per week. At time of trial he had been remarried for about 18 months. He has a child (a boy of eight months) by this second marriage. He and his wife live in a two-bedroom home with new furniture. He says he does not now drink and is in good health. He does not attend church regularly. There is no intimation that it is not a well-ordered, happy home, and his present wife has expressed a desire to take the child and treat her as her own.

In respect to the grandmother with whom the child has spent most of her life: She was married first for seven years, again for ten years, and was divorced both times. For four years she has been married to her third husband, a widower, and her husband’s youngest daughter, age 14, lives with them. (Two others of his daughters are married and gone from the home.) She and the husband own (together) a good, modern brick house. The husband is steadily employed and has a very substantial income from such employment. The marriage seems to be a successful and happy one. The husband (that is, the step-grandfather) says he thinks as much of the child as of his own children. The grandmother is active in church work and the neighbors say she is a good housekeeper, looks after the children well, and that she and the child here involved seem like mother and daughter.

The case was tried before the juvenile court much like a custody case in divorce court. At the conclusion of the evidence the court made oral findings that both thé parents love the child; that the grandmother has had the child for more than two years and at other intervals since the child was born; that the home of the grandmother and step-grandfather is a nice home; that such grandparents have affection for the child and she is treated in the same way as the step-grandfather’s own children; that the father of the child has not attempted to support the child within his ability; that her best interest would be served by placing her with the grandmother, with certain visitation rights in the father and the paternal grandparents; that beginning in 1962 the father should have custody from June 15 until August 15 of each year.

The child was made a ward of the court and jurisdiction was retained until the child becomes 21 years of age. The child was remanded to custody of the grandmother, subject to the visitation rights aforementioned. The father has appealed.

Since both parties agree that the juvenile division of the circuit court had jurisdiction, we will not pursue that question. (See Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 327; State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 617, 621.)

The appellant premises his attack upon the proposition that since it is conceded that, in the present circumstances, the natural mother is unfit or unable to care for the child, it follows that the father and natural parent is to be preferred over the grandmother, and that the evidence does not show the father to be unfit for such custody-under the present circumstances.

It has been held, over and over again, sometimes in poetic language, that, as respects the right to custody, the natural parent has legal preference over all other persons (grandmothers included), for it is presumed, in absence of proof to the contrary, that the welfare of the child will be best promoted by the naturál parent’s custody. Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Mothershead v. Mothershead, 236 Mo.App. 737, 161 S.W.2d 669; In the matter of the minor children of F. B. v. Caruthers, Mo.App., 323 S.W.2d 397, 401; State v. Greer, Mo.App., 311 S.W.2d 49; State v. Couch, Mo.App., 294 S.W.2d 636. But this is always subject to the qualifications (a) that the parent be a fit (and able) person to have such custody (In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 472; Swan v. Swan, Mo.App., 262 S.W.2d 312, 315; Tomlinson v. French Institute of Notre Dame De Sion, 232 Mo.App. 597, 109 S.W.2d 73(4); Mothershead v. Mothershead, supra, 236 Mo.App. 737, 161 S.W.2d 669, 675) and (b) transcending all else, the welfare of the child is entitled to first consideration. To this all other considerations must yield. Testerman v. Frederich, Mo.App., 323 S.W. 2d 522; State v. Pogue, Mo.App., 282 S.W. 2d 582, 588; Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379; Harwell v. Harwell, Mo.App., 355 S.W.2d 137; and all cases supra. As to the fitness of the father, the present appearance is that he is qualified in the sense that he is able and willing to take the child into his home. But the home he has established is not of long duration. Duration of the period in which he appears to have attained maturity and a sense of responsibility toward his child is not long. Time alone can answer the question as to whether the condition has become fixed. The courts are not inclined to experiment with such a sacred thing as the welfare of a child. Irvin v. Irvin, Mo.App., 357 S.W. 2d 254; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367; Stricklin v. Richters, Mo.App., 256 S.W.2d 53, 57. The juvenile court, however, has more flexible powers than the courts which deal with fixed rights and permanent status. Sections 211.011 and 211.041, V.A.M.S.; In the Interest of Ronald C-, Mo.App., 314 S.W.2d 756, 760. And when confronted with hard choices they must necessarily make orders which, affect custody only temporarily. Hyman v. Stanley, Mo.App., 257 S.W.2d 388. The order placing custody for the present in the grandmother is subject to change. Quite obviously the judge was attempting to work out a method whereby the child could be left in a home with those whom she loves and who love her, and still give the father a chance to establish a relationship between himself and his present wife and child and this daughter, which relationship, if the course of events so justified, could eventually lead to a more permanent arrangement.

We think the court was doing the best it could to attain this end and that it did not abuse its discretion and was not in error in ordering custody in the grandmother with visitation periods in the father. The thing we are doubtful about is whether the first visitation periods with the father are too long or too exclusive. The order, probably inadvertently, did not provide for any visitation of the child during the two months’ period by the grandmother, the step-grandfather, the great-grandparents, or the natural mother. This could be a critical period for her. The child is now approximately four years old. To abruptly jerk her away from the only home she has ever really known, and away from the persons to whom she has been accustomed as mother and father, persons whom she loves and who love her, and take her out of the state and into a strange household composed of a father whom she can but barely know, with a stepmother whom, as far as the evidence is concerned, she has barely met (however kindly and conscientious the stepmother may be), and with an infant child, away from all familiar surroundings, for a period of two months at the beginning, with no contact with those whom she has known, seems to us to be an abrupt beginning which could result in bewilderment and emotional trauma.

Accordingly the judgment is modified to permit reasonable visitation of the child by the persons above named during the father’s two months’ period of custody. If the father really has the welfare of his child at heart he will welcome such visitation.

As so modified, the judgment is affirmed, and the costs are taxed against the appellant.

McDOWELL and STONE, JJ., concur.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Mildred RAUTH, Plaintiff-Respondent, v. O. C. DENNISON, Defendant-Appellant.
    No. 8001.
    Springfield Court of Appeals. Missouri.
    May 8, 1962.

      Ronald J. Fuller, Rolla, for defendant-appellant.
    Breuer, Northern & Crow, Rolla, for plaintiff-respondent.
   STONE, Judge.

In this jury-waived court-tried action at law, defendant tenant appeals from the judgment of $975 entered against him for rental of the ground floor of a brick building in Rolla, Missouri, for three months from and after January 20, 1960.

Plaintiff owned a one-story brick building with full basement. The ground floor was divided into two storerooms by a center partition. In one storeroom, plaintiff and one Hardebeck had operated a hardware and sporting goods store for about seven years. During April or May 1959, plaintiff rented the other storeroom to defendant who immediately opened a furniture and appliance store there. The basement was occupied by a pool room. With defendant insisting that he needed more room, plaintiff and Hardebeck closed out their store at public auction on August 29, 1959, defendant and his sons knocked out the center partition on August 31, and plaintiff rented the entire first floor to defendant for $325 per month “plus two-thirds of the heating bill and . . . the air conditioning.” When defendant took the entire first floor, plaintiff “asked him for a lease . . . and he said that he would be willing to sign a lease, that . . . he wanted the building for five years, ten years, or he said, ‘I’ll be here hereafter.’ ” Defendant’s son, who managed the store and had participated in the conversations with plaintiff, confirmed the fact that his father had agreed to give plaintiff “a long term lease” — “we expected to give her a lease as well as she expected to have one; that’s only business.” But, when a written lease was presented to defendant, he refused to sign it. After offering the innocuous explanation that “we asked to rewrite a few phrases,” the, son conceded that one of the points of disagreement was that, while defendant wanted “a long term lease,” he “wanted the right to terminate any time (he) got ready to terminate.” Having already vacated the building herself, permitted removal of the partition, and turned over the entire first floor to defendant, plaintiff apparently consoled herself with defendant’s oral assurance that “his word was as good as a bond.” In any event, there was no written lease.

The parties agree that the cash rental of $325 per month for the entire first floor began on September 20, 1959; that the cash rentals for the monthly rent periods commencing on September 20, October 20, November 20 and December 20, 1959, were paid in full; and that no portion of the rental for the month commencing January 20, 1960, or for any subsequent monthly rent period was tendered or paid. There was much testimony, in many respects conflicting, concerning conversations between the parties prior to January 20, 1960. One of those conversations was shortly after defendant had been in the hospital in November 1959. Defendant’s version of that conversation was that he told plaintiff “that we had a party that was interested in the store, and asked her (plaintiff) . . . if I could bring him over and talk to her about renting it and all, and she said she’d be glad to” — “I told her at that time that we either had to do one of the two, sell it or vacate it, and she said, ‘Do the best you can, we’ll work with you.’ ” Plaintiff’s summation of that conversation was that “he (defendant) thought he had a buyer and would I work with the buyer . . . in regard to the rent . . . and I told him that I would,” but plaintiff insisted that defendant said nothing about vacating her building. Defendant stated, but plaintiff denied, that on two or three occasions prior to December 20, 1959, he (defendant) “told her that I was going to have to leave, that I would give her a 30-day notice; I was gonna tell her now that on the 20th I’ll bring you a check and that’ll be the last month.” And, defendant also asserted, but Hardebeck denied, that on December 20, 1959, he (defendant) delivered the rent check for the ensuing month to Hardebeck (in plaintiff’s absence) at another place of business jointly operated by her and Harde-beck and “told him to give it to (plaintiff) and tell her that we’ll be out by the 20th and' I’ll turn in her keys the 20th of next month.”

According to plaintiff, knowledge of defendant’s intention to vacate her building first came to her about January 10, 1960, when an unidentified third party told her that defendant had moved his stock and inquired of her whether the building was for rent. This motivated a telephone call to defendant, in the course of which plaintiff said “I hear you’re moving” and defendant confirmed that fact. When she looked in the building that evening, plaintiff saw that “practically everything was out but refrigerators and appliances.” Nothing further is shown to have occurred until the afternoon of January 20, 1960, when defendant came to the place of business operated by plaintiff and Hardebeck and laid the keys to the rented building on a desk. This was defendant’s terse account of the conversation that afternoon: “I said, ‘I’m sorry, Mrs. Rauth, that everything turned out as bad as it has.’ She said, ‘Well, I am too, Mr. Dennison,’ said, ‘It could be worse maybe.’ Let it go at that. There wasn’t too much said.” Plaintiff’s report of the same conversation was: “Well, he (defendant) apologized and he was very sorry, and I asked him whether he thought it was quite fair to me to just walk out of the building, and . . . Mr. Hardebeck said, ‘What if you’d a-had a lease?’ ‘Well,’ he said, ‘that’d be a different thing.’ And he (Hardebeck) said, ‘What about your word being as good as your bond — as a bond?’ And with that Mr. Dennison grew angry and just went out the door. He said nothing more.”

Either that same day or within a day or so thereafter, plaintiff entered the vacated building to check doors, windows, heat and water. On the following day, towit, on January 21, 1960, plaintiff’s attorneys wrote defendant at length, (a) notifying him that he then owed the cash rent of $325 “which was due and payable on January 20th,” $71.05 as “the fuel bill up to January 1, 1960,” $25.52 as “the fuel bill from January 1 to January 20, 1960,” and $25 as the estimated fuel bill for the month commencing January 20, (b) stating that “the law requires one who is occupying property on a month to month basis to give a written notice of his intention to terminate the month to month tenancy,” (c) pointing out that plaintiff had “vacated the premises and made them available to you at a tremendous expense to herself,” (d) demanding payment of the listed items, and (e) warning of suit if payment was not forthcoming. In response to that letter, defendant mailed a check for the items of $71.05 and $25.52, his portion of the heating bills to January 20, 1960. There was no other payment by defendant and no further contact or communication between the parties or their representatives prior to suit.

A “for rent” sign was painted on, or placed in, the front window of the vacated building sometime after January 20 — defendant said within eight to ten days thereafter, witness Hardebeck thought “at least thirty days or more after the building-was vacated,” while plaintiff repeatedly answered “I do not know” when urged to express her judgment on this subject. Upon permission granted by plaintiff but with no profit or payment to her, “charitable organizations” conducted several rummage sales in the vacated building before it was rerented by plaintiff on May 24, 1960. Defendant thought that the first rummage sale was held “only a few days” after January 20, while plaintiff stood on “I wouldn’t know” when pressed for information in this area. Plaintiff replaced the ■center partition in the vacated building, ■dividing the ground floor into two storerooms. This was, so she said, “somewhere around” April 24, 1960, while defendant “imagined” it was “somewhere around” thirty days after he had moved.

Admitting that his tenancy was from month to month and that he gave no notice in writing of his intention to terminate that tenancy [Laws of 1951, p. 747; V.A.M.S. § 441.060], defendant denies liability for payment of any additional rental because, so he asserts, there was “a surrender by operation of law” on January 20, 1960. In essence, defendant’s contention is that, when he laid the keys on a desk in plaintiff’s office on the afternoon of January 20, 1960, she had “a duty, as landlord, to speak up if she did not mutually agree to the surrender,” that -she then “failed by word and deed to convey such notice to defendant as would prevent an acceptance of a surrender by operation of law,” and that she accepted “surrender of the premises by defendant on January 20.” Defendant apparently treats subsequent events, i. e., the placing of the “for rent” sign on or in the front window, the holding of rummage sales in the vacated building by charitable organizations, and the replacement of the center partition, as confirming plaintiff’s alleged acceptance of the surrender on January 20.

\Running through all of the reported cases in this field of law is the principle that a surrender of premises by the tenant and an acceptance thereof by the landlord must be consummated by mutual consent and agreement of the parties^ If the surrender be accomplished by implied agreement, “it is said to be done by operation of law, and the intention of the parties is to be implied from the acts and conduct of the respective parties, as disclosed by the attending facts and circumstances. ^A surrender by operation of law occurs where the parties, without express surrender, do' some act or acts from which it is necessarily implied that they have both agreed to’ consider the surrender as made — acts which are necessarily inconsistent with the continued relation of landlord and tenanT) . . Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 1132, 23 S.W.2d 64, 74; Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 722-723. Many of the cases emphasize that the landlord’s intention to release the tenant from further payment of rent is essential to a surrender by operation of law,' although it is recognized that “‘(w)hile it has frequently been said that whether a lease has been terminated by operation of law is a question of intention of the parties, it is, nevertheless, held that this mutual agreement may be implied, upon the principle of estoppel, from the acts of the parties, independently of, and even contrary to, their actual intent.’ ” Von Schleinitz v. North Hotel Co., supra, 323 Mo. loc. cit. 1132, 23 S.W.2d loc. cit. 74; Zoglin v. Layland, supra, 328 S.W.2d loc. cit. 723.

Although the acts and conduct of the parties may be such as to make the basic question of intention one of law [D. A. Schulte, Inc. v. Haas, 224 Mo.App. 365, 287 S.W. 816, 818(5); Huling v. Roll, 43 Mo.App. 234, 239, 243], it usually remains a question of fact to be determined as such. Agers v. Courtois, Mo.App., 266 S.W.2d 5, 7 (3); Shattlock Realty Co. v. Mays, 228 Mo.App. 1108, 1115, 63 S.W.2d 429, 432; D. A. Schulte, Inc. v. Haas, supra, 287 S.W. loc. cit. 818(4). So, our Missouri cases have said that neither the delivery of the keys to the landlord [Livermore & Cooley v. Eddy’s Adm’r., 33 Mo. 547; Prentiss v. Warne, 10 Mo. 601; Buck v. Lewis, 46 Mo.App. 227], nor his efforts to rerent the abandoned premises (Fischman v. Kiphart, Mo.App., 297 S.W.2d 784, 786(3, 4); Sessinghaus v. Knocke, 127 Mo.App. 300, 105 S.W. 283; Buck v. Lewis, supra], nor his repairing or renovating thereof [Livermore & Cooley v. Eddy’s Adm’r., supra; Sessinghaus v. Knocke, supra], nor his temporary storage of some articles therein [Sander v. Holstein Commission Co., 118 Mo.App. 29, 121 Mo.App. 293, 99 S.W. 12], nor some delay in demanding of the tenant payment of the next month’s rent [Fischman v. Kiphart, supra, 297 S.W.2d loc. cit. 786(4)] compels a finding that the tenant’s attempted surrender of the premises was accepted by the landlord. For that matter, in most of the cases cited by instant defendant [e. g., Agers v. Courtois, supra, 266 S.W.2d loc. cit. 7-8(3, 4); Wahl v. Hinchey, Mo.App., 72 S.W.2d 497, 499; Churchill v. Lammers, 60 Mo.App. 244; Buck v. Lewis, supra], intention was determined as a question of fact in the trial court and, upon appeal, was treated and reviewed as such.

Defendant stresses the statement that “the authorities are somewhat in conflict respecting what particular acts or conduct on the part of the landlord are sufficient to raise the implication that the landlord has acquiesced and consented to a surrender of the leased premises by the tenant” but that “(i)t appears to be the weight of juristic authority . . . that, in order to prevent an acceptance of a surrender by operation of law, the landlord must, either by word or by act, convey to the tenant notice that the landlord resumes possession of the premises for the benefit of the tenant, and not for the benefit of the landlord.” Von Schleinitz v. North Hotel Co., supra, 323 Mo. loc. cit. 1133, 23 S.W.2d loc. cit. 75; Zoglin v. Layland, supra, 328 S.W.2d loc. cit. 723. However, in both Von Schleinitz and Zoglin, supra, the landlord took possession of demised premises in which an income-producing (although perhaps not then lucrative) business was being conducted and thereafter continued to operate that business and to retain the cash receipts therefrom, without any notice to the dispossessed tenant that the landlord was acting as agent for the tenant or would look to the tenant for any rental loss or deficiency.

Without rehashing the facts already reported in more tedious detail than proper disposition of the case requires, it will suffice to remind ourselves at this point that, when defendant came to plaintiff’s office on January 20, he admittedly opened his very brief conversation with an apology —in his language, “I’m sorry, Mrs. Rauth, that everything turned out as bad as it has”; and that, if plaintiff and witness Hardebeck are to be believed, plaintiff’s response was not (as we are convinced), either in language or in import, reasonably to be construed as consent to defendant’s abandonment of the rented building — for plaintiff said, “I asked him whether he thought it was quite fair to me to just walk out of the building,” of as Hardebeck testified, “it wasn’t just exactly the right-thing to do to move out.” True, plaintiff did not then-, make specific demand upon defendant for payment of further rental, mayhap because defendant (so it is reported) beat an abrupt exit when Hardebeck followed with the conscience-pricking, anger-provoking query,' “What about your word being as good as your bond?” But, such doubt as defendant' may llave hopefully invited and secretly nurtured concerning plaintiff’s purpose and intention ⅛ hold him’ for further rental was dispelled within twenty-four to forty-eight hours by the letter from plaintiff’s counsel which, as defendant admitted, he received on January 21 or 22.

Viewed in the light most favorable to him, we doubt whether defendant made a submissible case on his affirmative' defense that there was a surrender of the vacated building by operation of 'law on January 20, 1960; but, even if he did, certainly the evidence did no more than raise an issue for determination by the trier of. the facts. ' See again Agers, Shattlock, Schulte/ Sessinghaus and Sander, supra. With no specific findings of fact requested or made; ’this issue was ruled against defendant by the general finding and judgment for • plaintiff. Rule 73.01(b), V.A.M.R.; V.A.M.S. § 510.310(2); Sando v. Phillips, Mo., 319 S.W.2d 648, 652(9); Shirley v.’ Norfleet, Mo.; 315 S.W.2d 715, 721; Hymer v. Dude. Hinton Pontiac, Inc., Mo.App., 332 S.W.2d 467, 469(1). Although, in a, court-tried action, it is our duty to “review the case upon both the law and the evidence as in suits of an equitable nature,” we are directed to accord due' deference to the opportunity of the trial court to judge of the credibility of the witnesses and we are-enjoined from setting aside the judgment unless it is clearly erroneous. Rule 73.01(d), V.A.M.R.; V.A.M.S. § -510.310(4) ; Beckemeier v. Baessler, Mo, 270 S.W.2d 782, 783(1); Macy v. Day, Mo.App., 346 S.W.2d 555, 558. Mindful of these fundamental principles' of appellate review, we should, not, on the • record before us, strain for a contrary and (as we think) unjustified conclusion on the issue under consideration;' and we hold, as did the court nisi, that there was no surrender of the vacated building by operation of law on January 20, 1960.

If (as defendant asserts but plaintiff denies) defendant gave verbal notice prior to December 20, 1959, of intention to terminate his tenancy- at the end of the monthly rent period commencing on that date, such notice was “worthless in legal effect” [Berner v. Gebhardt, 87 Mo.App. 409, 413]; and, of course, whatever defendant may have said in his telephone conversation with plaintiff about January 10, 1960, was just as ‘ineffectual in law. To have terminated his tenancy at the close of the monthly rent period commencing on January 20, 1960, it would have been necessary for-defendant to have given written notice as required by statute [Laws of 1951, p. 747; V.A.M.S. § 441.060] prior-to January 20. Corby v. Brill Book & Stationery Co., 76 Mo.App. 506, 508(1); Berner v. Gebhardt, supra, 87 Mo.App. loc. cit. 413-414(3); Fisher v. Payton, Mo.App., 219 S.W.2d 293, 296(9, 11); annotation 86 A.L.R. 1346. But, admittedly the monthly rent period' commencing on December 20, 1959, expired and the succeeding monthly rent period commencing on January 20, 1960, began without any written notice from defendant. Having suffered the new monthly rent period to begin without the required statutory notice to plaintiff, defendant could not have terminated his month to month tenancy until the end of the next rent period, i. e., until the end of the month commencing on February 20, 1960; and, to do that, it would have been necessary for him to have given appropriate written notice to plaintiff prior to February 20, 1960. Gunn v. Sinclair, 52 Mo. 327, 330; Corby v. Brill Book & Stationery Co., supra, 76 Mo.App. loc. cit. 508; Fisher v. Payton, supra, 219 S.W.2d loc. cit. 296.

, ^Without a surrender of the premises by the.tenant. and an .acceptance thereof by the landlord consummated by mutual consent and agreement of the parties, either express or implied, a month to month tenancy may he terminated in no other way than by giving the written notice contemplated and required by statute. Smith v. Smith Bros., 62 Mo.App. 596, 601(3); Berner v. Gebhardt, supra, 87 Mo.App. loc. cit. 414; Longacre v. Longacre, 132 Mo.App. 192, 196, 111 S.W. 855, 856. Statements are found to the effect that a month to month tenant who, without the landlord’s consent, vacates premises without having given the required written notice to the landlord remains liable for payment of rent for the succeeding month. Buck v. Lewis, supra, 46 Mo.App. loc. cit. 230-231; Sessinghaus v. Knoche, 137 Mo.App. 323, 327, 118 S.W. 104, 106; Wahl v. Hinchey, supra, 72 S.W. 2d loc. cit. 498. But, when these statements are read in context and considered in the light of the facts of the particular cases in which they appear, it becomes abundantly clear that they were not intended to limit, and do not limit, recovery under all circumstances to a single month. In Buck and Sessinghaus, supra, plaintiff in each case sought only one month’s rent. In Sessing-haus, supra, the court firmly stated that plaintiff landlord’s instruction 5, which directed the jury “that the only way defendant (tenant) could terminate the (month to month) tenancy and end his liability for rent was to give the plaintiff or her agent written notice of his intention to terminate . . .,” “certainly declared the law.” [137 Mo.App. loc. cit. 325-326, 118 S.W. loc. cit. 106] And in Wahl, supra, where the jury had found that there was a surrender by operation of law by virtue of “a fully consummated agreement to vacate the premises” [72 S.W.2d loc. cit. 499], the appellate court approvingly quoted Smith, supra, to the effect that, “ ‘where there is a tenancy from month to month, the only way that the tenant can terminate it is by giving the written notice required by the statute.’ ” [72 S.W.2d loc. cit. 498] In Smith, tupra, the suit was “to recover the rent for the four months next after the defendants (tenants) quit” [62 Mo.App. loc. cit 600], and in Sessinghaus v. Knoche, supra, the suit was “to recover the rent for the month of March, 1906,” the third month after defendant had abandoned the rented premises about December 20, 1905. [127 Mo.App. loc. cit. 302, 105 S.W. 283]

Plaintiff’s replacement of the center partition in the vacated building which occurred (so she said) about April 24, 1960, reasonably may be regarded (and apparently her counsel so regard it) as an act evidencing her acceptance of defendant’s surrender of the building. True it is, as defendant emphasizes, that at some time prior to April 24 a “for rent” sign was placed on or in the front window [cf. Fischman v. Kiphart, supra, 297 S.W.2d loc. cit. 786 (3, 4); Sessinghaus v. Knoche, supra] and that, on some date or dates prior to April 24 which, from the record, can neither be fixed nor fairly approximated with reasonable confidence or assurance, some charitable organizations conducted a rummage sale or sales in the building. But, as plaintiff said, when charitable organizations seek permission so to use an empty building in a neighborly Ozark community, “there’s no way of turning them down”; and, after defendant had abandoned the building with no purpose or desire to occupy it further, it would be grossly unjust to construe use of the building for a rummage sale or sales by charitable organizations as conclusively demonstrating plaintiff’s intention to release defendant from payment of rent (an inescapable concomitant of a landlord’s acceptance of a tenant’s surrender of rented premises), when palpably plaintiff’s intention was to the contrary as theretofore had been evidenced by her counsel’s letter to defendant. Cf. Sander v. Holstein Commission Co., supra, 121 Mo.App. loc. cit. 299, 99 S.W. loc. cit. 13-14.

Again, if (as we need not determine) defendant made a prima facie case permitting a finding of surrender by operation of law after January 20 but prior to April 19 (the end date of the three-month period for which rent was sought), certain-

ly the evidence did no more than make this a question of fact necessarily depending in large measure upon the weight and credibility to be accorded to the oral testimony, of which the trial court obviously was in a superior position to judge. With the burden of establishing any surrender by operation of law resting upon defendant [Churchill v. Lammers, supra, 60 Mo.App. loe. cit. 249], we cannot say that the judgment nisi was clearly erroneous. Rule 73.01(d), V.A.M.R.; V.A.M.S. § 510.310 (4).

Accordingly, it should be and is affirmed.

RUARK, P. J., and McDOWELL, J., concur.

      . Crow v. Kaupp, Mo., 50 S.W.2d 995, 998 (4); Livermore & Cooley v. Eddy’s Adm’r., 33 Mo. 547, 551; Agers v. Courtois, Mo.App., 266 S.W.2d 5, 7 (1); Babcock v. Rieger, Mo.App., 76 S.W.2d 731, 735; Shattlock Realty Co. v. Mays, 228 Mo.App. 1108, 1115, 63 S.W.2d 429, 432; D. A. Schulte, Inc. v. Haas, 224 Mo.App. 365, 368, 287 S.W. 816, 817-818(1); Sessinghaus v. Knocke, 127 Mo.App. 300, 105 S.W. 283; Sander v. Holstein Commission Co., 118 Mo.App. 29, 121 Mo.App. 293, 298, 99 S.W. 12, 13; Robertson v. Winslow, 99 Mo.App. 546, 74 S.W. 442, 443; Churchill v. Lammers, 60 Mo.App. 244, 248—249(1); Huling v. Roll, 43 Mo.App. 234, 238-239(1); Hotz v. Federal Reserve Bank of Kansas City, Mo., 8 Cir., 108 F.2d 216, 219 (4, 5).

      . Agers v. Courtois, supra, 266 S.W.2d loc. cit. 7 (2); Shattlock Realty Co. v. Mays, supra, 63 S.W.2d loc. cit. 432; D. A. Schulte, Inc. v. Haas, supra, 287 S.W. loc. cit 818(4); Leggett v. Louisiana Purchase Exposition Co., 157 Mo. App. 108, 119, 137 S.W. 893, 896(5); Sessinghaus v. Knocke, supra; Sander v. Holstein Commission Co., supra, 121 Mo.App. loc. cit. 298, 99 S.W. loc. cit. 13.


author: DOERNER, Commissioner. PER CURIAM.

text:
    Ronald E. THOMAS, Plaintiff-Respondent, v. Earline THOMAS, Now Known as Earline Boyer, by Paul Boyer, Her Next Friend, Defendant-Appellant.
    No. 30936.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    Husch, Eppenberger, Donohue, Elson & Jones, Ramon J. Morganstern, St. Louis, H. Jackson Daniel, St. Louis, for defendant-appellant.
    Walter Rollman, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an appeal from an order modifying that part of a decree of divorce relating to the custody of a minor child.

In the interests of clarity the parties will be referred to as they appeared in the original divorce action. Plaintiff, Ronald E. Thomas, then 16 years of age, was married on August 8, 1956, to the defendant, Earline, then 14 years of age. A female child named Sherry was born to them on June 18, 1957. The couple separated on or about September 15, 1958, and on December 30 of that year plaintiff instituted an action for divorce against defendant, alleging general indignities. The minority of defendant was suggested, and a guardian ad litem appointed for her. Defendant filed an answer denying the charges made, and a cross-bill. The record of the divorce action, contained in the transcript of the present proceedings, shows that the defendant did not appear at the trial. In the hearing on the motion to modify plaintiff admitted, on cross-examination, that three or four days before the trial he put defendant on a bus and sent her out of town, knowing that the divorce action would soon be heard. The same record also shows, however, that defendant’s guardian ad litem appeared on her behalf at the trial of the suit for divorce. By its decree, dated June 1, 1959, the court awarded plaintiff a divorce and the custody of Sherry, and dismissed defendant’s cross-bill for failure to prosecute. There was no provision granting to defendant the right of visitation.

On May 10, 1960, defendant, through her present guardian ad litem, her second husband, filed this motion to modify. She alleged therein her remarriage and her belief that it would be for the best interest of Sherry that she be given custody, and prayed that the decree be modified accordingly. After a hearing the court denied the motion but ordered that defendant should have the right to visit with the minor child at the home of plaintiff at all reasonable times, until the further order of the court, and awarded defendant an allowance of $50 for additional attorneys fees, and her costs.

Presumably disappointed with the partial victory thus won, defendant appealed. She contends that the evidence clearly established a change of circumstances on her part, which showed that the best interests and welfare of the child would be served by transferring custody to her; and that the denial of her motion constituted an abuse of discretion. Defendant’s evidence was that since the original decree she had married Paul Boyer, and that they were then living in a three room and bath flat at 1810 South Thirteenth Street in St. Louis. Paul had been a foreman for Wagner Electric Company for 9 or 10 months, earning $114 per week, but about two months prior to the hearing had been laid off. He was temporarily working for a shoe firm at a salary of $50 per week, but expected to be recalled by Wagner in about two months. Defendant supplemented their income by furnishing room and board for two small boys, for which she received $10 per week, but testified that she would discontinue such employment if the custody of Sherry was awarded to her. At the time of the hearing she was pregnant, and in his brief her counsel states that she subsequently gave birth to a daughter.

Plaintiff’s evidence showed that since the decree he has likewise remarried, to one Carolyn, and that they had had a daughter who was 5 months old at the time of the hearing. Plaintiff and his family lived in a two-story duplex at 1417 Peacock Lane, Brentwood, Missouri, having five rooms and bath. He was employed as the night service manager of a service station, at a salary of about $85 a week, plus a commission. Carolyn testified that because of their huge indebtedness to the hospital, upon which a negligible amount had been paid, she had obtained employment with an equipment company. She had engaged a middle-aged woman, whom she described as very competent, to look after her own daughter and Sherry during the day.

The evidence showed that between the time plaintiff had filed his petition for divorce and the time the trial was held, and while Sherry, then 20 months old, was in the custody of defendant, the child ingested a product called Drano, containing lye. She was admitted to the City Hospital as an emergency case on February 12, 1959, where she remained for slightly less than two years. During that period, according to plaintiff, she underwent approximately 14 operations necessitated by the scarring and stricture formation in the upper third of her esophagus resulting from the burns which occurred. Gastrostomies had also been performed so that she could be fed by a tube to her stomach while the esophagus was dilated from below. In March, 1960, she was discharged from the hospital, but had to he re-admitted on May 30 of that year because of increasing difficulty in swallowing. Prior to the hearing of the motion to modify, by stipulation of the parties, Sherry was examined by Dr. J. Eugene Lewis, Jr., a physician appointed by the court. In his report, after reciting her history, Dr. Lewis stated that the child’s esophagus could be kept open only by continuous dilation. He also expressed the opinion, which he said was shared by the attending physician, that a reconstructive operation was his “treatment of choice.” In this operation, he stated, the right colon would be used to by-pass the stricture in the esophagus and would allow the child to swallow without difficulty.

Plaintiff’s evidence showed that Sherry had been released from the hospital four days prior to the hearing on the motion. Plaintiff testified that the child had to be returned to the hospital once a week for dilation of the throat by the use of an instrument called a Bugie, and that the hospital staff was planning to train him and Carolyn to that they could use the Bugie at home. He stated that unless the dilation was continued it might be fatal to the child’s life. Carolyn testified that the tube to Sherry’s stomach had been removed the day before the hearing, leaving a hole in the abdomen through which stomach acid was being discharged. She said that while the hole remained open there was a grave danger of infection, and that to promote its closing alum paste had to be applied. She related further that there was an open wound in the child’s neck, where an operation had been performed, which required the application of warm cloths four times a day to promote healing. Defendant offered no evidence that she had had any training in nursing. Paul, her husband, testified that he had been taught first aid and artificial respiration while he was in the Army Transportation Corps. Plaintiff testified, as stated, that he and Carolyn were to be trained by the hospital in the use of the Bugie. Carolyn, who had had two years of college, testified that she had been trained by the doctors and nurses at the City Hospital to care for Sherry. She further stated that she had received training in nursing while in the student nursing association in high school, had also been taught first aid by her father, and that her sister was a trained nurse.

In her brief defendant argues that since the rendition of the original decree, when she was 17 years old, she has “aged, matured, and remarried,” to quote her, and that she now has a home in which to care for Sherry. For the purposes of this case it may be conceded that her evidence of her remarriage and the establishment of a home was proof of a change of condition. See Noble v. Noble, Mo.App., 341 S.W.2d 307; Gianformaggio v. Gianformaggio, Mo.App., 341 S.W.2d 293. But mere proof of a change of condition since the rendition of the original decree, standing alone, is not sufficient. Inasmuch as the welfare of the child is the guiding star in matters of this nature, there must be not only proof of a change of condition, but it must be shown to be such a change that the welfare and best interests of the child will be beneficially affected by a modification of the decree. McCoy v. Briegel, Mo.App., 305 S.W.2d 29; Lewis v. Lewis, Mo.App., 301 S.W.2d 861; Schumm v. Schumm, Mo. App., 223 S.W.2d 122.

The rule that “what is best for the child” is the supreme consideration in determining custody is particularly applicable in this case. The very life of this unfortunate child depends upon receiving proper nursing care and attention, including the continuous dilation of her esophagus by the use of a Bugie. Plaintiff’s evidence showed that Carolyn, plaintiff’s wife, had had special training in nursing, that she had been taught by the doctors and nurses at the City Hospital to care for Sherry, and that plaintiff and Carolyn were to he trained to use the Bugie, so that they could give the child the vital treatment. Conversely, there was no evidence offered on behalf of defendant that she or her husband had ever received any training in nursing, except for the first aid course he had been given while in the Army, nor was there any evidence indicating that they were to be taught to use the Bugie. Defendant stresses that she would not be employed, while plaintiff and his wife both work, and this is indeed a factor in her favor. However, because of their varying hours of employment, either plaintiff or Carolyn would be at home and available during the child’s normal waking hours, except for a relatively short interval.

While it is our duty to review the whole record in matters of this nature, and arrive at our own conclusions, it has been repeatedly recognized that in performing this duty we must bear in mind that the findings of the trial court should not be lightly disturbed. In fact, such findings will ordinarily be deferred to, unless, from a consideration of all the facts and circumstances, it appears that said findings are in conflict with a clear preponderance of the evidence so as to disclose a manifest abuse of judicial discretion. Noble v. Noble, supra; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364. In the light of the evidence in this case we are of the opinion that no manifest abuse of discretion is disclosed, and that the trial court reached the correct decision.

Accordingly, the Commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is affirmed.

ANDERSON, P. J., WOLFE, J., and ELGIN T. FULLER, Special Judge, concurs.


author: HUNTER, Presiding Judge.

text:
    Carter N. COFFIN and V. C. Akers, Plaintiffs-Respondents, v. The CITY OF LEE’S SUMMIT, Missouri, Irene Lavery, Union Construction Company, Miller J. Fields and Jack Janes, Jr., Defendants-Appellants.
    Nos. 23409 and 23410.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      Charles C. Shafer, Jr., Kansas City, for appellants.
    Donald C. Earnshaw, Lee’s Summit, George V. Aylward, Kansas City, for respondents.
   HUNTER, Presiding Judge.

Appellants, the City of Lee’s Summit, a fourth class city; Irene Lavery, its City Clerk; Union Construction Company; Miller Fields and Jack Janes, Jr., appeal from a judgment of the Circuit Court of Jackson County holding that Ordinance No. 646 of the City of Lee’s Summit is invalid because Fields and Janes, Aldermen, had “either a direct, personal, financial or pecuniary interest” in its passage.

Respondents, Carter N. Coffin and V. C. Akers, are the owners of property comprising 8.55% of the total area within a designated protest area, and Akers’ portion adjoins the property of Union Construction Company. See, Section 89.060 RSMo 1959, V.A.M.S.

Union Construction Company, (hereinafter called “Union”), a Missouri Corporation, engages in the quarry, rock-crushing, asphalt and general lime-stone business. It is the owner of a tract of land of approximately 140 acres located within the city limits of Lee’s Summit.

On March 16, 1960, Union filed an application with the Board of Aldermen to rezone its property as provided in Zoning Ordinance No. 608, so as to place it within a zoning classification that would permit it to engage in the business mentioned above.

Zoning Ordinance No. 608 is the comprehensive ordinance zoning all of appellant City. It provides in part that all area within the city limits of Lee’s Summit not otherwise designated was zoned “residential”. It also provides for the amendment of the ordinance, including changes in zone boundaries. Union was in an undesignated, hence residential, area but was claiming a right to carry on its business as a nonconforming use.

Pursuant to the procedure required in Ordinance No. 608 the City Zoning Commission published a Notice of Public Hearing for May 4, 1960. The Chamber of Commerce and Real Estate Board recommended the rezoning requested by Union and many home owners opposed it. As a result of this public hearing the City Zoning Commission found the requested rezoning would result in the most appropriate use of the land involved. Subject to numerous conditions it recommended Union’s land be placed in a zone permitting its described business by amending Zoning Ordinance No. 608 by changing “District C-Highway, Business and Industrial” to include mining and quarry operation and by adding in the area designated “District C” the legal description of Union’s land. Also, it recommended certain changes in paragraph 9 of Ordinance No. 608. As drafted, Ordinance No. 646 added a new district “C-Q-Quarries, Mines and Related Industries”, and established performance standards and safeguards applicable to the new district.

Thereafter, the Board of Aldermen published Notice of a Public Hearing on October 10, 1960, on the matter. After this hearing the Board of Aldermen went into legislative session with all six members and the Mayor present. Ordinance No. 646 was introduced, read three times, and passed by a vote of 5 to 1. Two of the favorable votes were cast by Aldermen Fields and Janes. The Mayor, who had veto powers, signed the ordinance.

Thereafter, respondents filed this petition for Declaratory Judgment and for Temporary Injunction, alleging that Aldermen Fields and Janes had a direct personal interest involved in the ordinance and that the ordinance was invalid because of the improper votes they cast in favor of its passage.

At the circuit court hearing it was developed that Alderman Fields owns one-third of the stock of the Lee’s Summit Ready Mixed Concrete Company, and is the president of that company, and that Union •owns the remaining two-thirds of its stock. Fields has no connection with Union and ■does not own any stock in Union. He does not receive any pay, compensation, commission or other remuneration from Union. Nor does the Ready Mixed Concrete Company own any portion of Union. The concrete company is operating from the location of Union. Fields, probably on behalf ■of the concrete company, after several months of negotiation on November 21, 1960, leased some land from Union.

It was also developed at the trial that Alderman Janes, among his numerous employments, was an employee of Herb Loef-■fler, a contract hauler. Among Loeffler’s ■numerous customers were Lee’s Summit Ready Mixed Concrete Company and Union. Janes was employed as a truck driver by Loeffler and hauled materials to and from many of Loeffler’s customers, including Union but not the Ready Mixed Concrete Company. Janes stated the passage •of the ordinance did not in any way give him any personal benefit, compensation, remuneration, or enhance him financially.

The trial court found that “Alderman Fields and Alderman Janes had either a direct, personal, financial, or pecuniary interest in the passage of Ordinance No. 646; that * * * although having received the favorable vote of five of the six Aldermen * * * (it) is invalid under the law and against public policy.”

All the parties agree that the accepted rule of law is a personal or financial interest does disqualify a member of a municipal council from participating in an official action of a judicial, quasi-judicial or contractual nature. See, Annotation, Public Officers-Personal Interest, 133 A.L.R. 1258, 62 C.J.S. Municipal Corporations § 402, page 761.

It is the position of appellants that the enactment of Ordinance No. 646 was the exercise of a purely legislative function by the City Aldermen, and that the motives or interest of the governing body of a municipal corporation in adopting an ordinance, legislative in nature, cannot be the subject of judicial inquiry. They also contend Aldermen Fields and Janes had no interest in Ordinance No. 646 and were entitled to cast valid votes for its adoption.

In the absence of any decision in this state on the subject appellants cite outstate and secondary authorities including, City of Miami Beach v. Schauer, Fla.App., 104 So. 2d 129. In that case suit was brought to have an ordinance amending the comprehensive zoning ordinance declared invalid because one of the favorable votes was cast by a councilman who frankly and publicly admitted he owned some of the oceanside property to be affected and that this property would be increased by more than $500,-000.00 in value as a result of its change in zoning from private residence to hotel district. The amendment was accomplished by the required affirmative votes of five of the seven members of the City Council. Plaintiffs alleged the action of the City Council in amending the zoning ordinance was quasi-judicial and that because the financially interested councilman’s vote was necessary for its passage the ordinance was invalid. In considering and ruling on these contentions the Florida District Court of Appeals declared:

“It is well settled that the motives of the governing body of a municipal corporation, in adopting an ordinance legislative in character, will not be the subject of judicial inquiry. It is also established that the actions of judicial tribunals or of bodies acting quasi-judicially are subject to judicial scrutiny and review.
* * * * * *
“On the question, vital to the decision of this case, of whether the passage of this ordinance amending the comprehensive zoning ordinance was legislative or quasi-judicial action of the city, we hold that the city council was not acting in a quasi-judicial capacity, but in the exercise of its legislative powers.
* * * * * *
“We have been shown no convincing authority holding that an ordinance amending such a comprehensive zoning ordinance would be quasi-judicial action. That question was raised in the case of Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321. In that case the court had before it for consideration a similar ordinance enacted to change the zoning classification of a particular area, and, as here, it was contended that the interest of one of the city officials whose vote was involved in the amendment disqualified him for interest. In order to avoid the rule that the motives of those involved in legislative action will not be inquired into, the argument was advanced that although the comprehensive zoning ordinance represented legislative action by the city, an ordinance passed for the purpose of changing or amending the original zoning ordinance would be considered quasi-judicial action. In rejecting that contention the Virginia court said (49 S.E.2d at page 325):
“ ‘It would be flagrantly inconsistent to hold that the adoption of a comprehensive zoning law is legislative in character and that the amendment to such a law was a quasi-judicial act. If the original act is wholly legislative, an •amendment to it partakes of the same character.’
“In support of the contention that the action in this instance was quasi-judicial, appellees call our attention to the fact that the city council’s action involved the receiving of testimony, the weighing of evidence and consideration of various facts and circumstances, as is done by judicial bodies. In enacting laws legislators necessarily must be advised on such matters. Their diligence in becoming so informed prior to making such enactments does not change the character of their action from legislative to quasi-judicial. What has just been said, of legislative bodies, should not be construed as holding that the action of legislative committees or sub-committees, or zoning boards, which are required to hold hearings and make reports in the form of findings and conclusions or recommendations, do not operate quasi-judicially.
“Therefore, when legislative rather than quasi-judicial action is involved, the authorities appear uniform in holding that, in the absence of a showing of fraud, the motives of a city council will not be subject to judicial scrutiny.
* * * * * *
“The rule was stated by the Supreme Court of the United States in Angle v. Chicago, St. P., M. & O. R. Co., 151 U.S. 1, 14 S.Ct. 240, 247, 38 L.Ed. 55, 64, as follows:
“ ‘The rule upon which this decision rests has been followed in many cases, and has become a settled rule of our jurisprudence. The rule, briefly stated, is that whenever an act of the legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expediency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act. This principle rests upon the independence of the legislature as one of the co-ordinate departments of the government. It would not be seemly for either of the three departments to be instituting an inquiry as to whether another acted wisely, intelligently, or corruptly. * * * ’
* * * * * *
“It should be noted that we are not concerned here with a contractual agreement with a municipality in which a councilman has a personal interest. This case involves a legislative enactment. (Citations omitted.)
“Under existing law the personal interest of councilman Halperin, and the fact that he stood to receive substantial gain from the action of the city council in which he took part, did not operate to disqualify him or destroy the effectiveness of his vote. As pointed out above, the court was not authorized to inquire into his motives as a legislator and to disqualify him for his interest. Such a disqualification of a member of the city council would have to be provided for by legislation.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“We refrain from comment on the moral aspects involved, because the holding of this court must be based on law and not on moral considerations.”

The Schauer case was reviewed by the Supreme Court of Florida in Schauer v. City of Miami Beach, Fla., 112 So.2d 838, 71 A.L.R.2d 562, and by a four to two vote was affirmed. Referring to the intermediate appellate court’s decision the Supreme Court said, loe. cit. 839:

“Then the court announced the opinion that the passage of the original zoning ordinance as well as the amending ordinance were the exercise of a legislative function. We agree with the conclusion notwithstanding the decision in Aldom v. Borough of Roseland, 42 N.J.Super. 495, 127 A.2d 190, upon which the chancellor relied, but which, in the view of the district court and, now of this court, is isolated authority for the proposition that such action by a city council is quasi-judicial.
“It is obvious to us that the enactment of the original zoning ordinance was a legislative function and we cannot reason that the amendment of it was of different character.
“In its opinion the district court referred to abundant respectable authority for the position that once the legislative nature of the action is established the barrier against judicial incursion is erected.
******
“Regardless of our concepts of political morals, we are bound by the historical organic prescription that we recognize the line that separates the exercise of legislative power from judicial power. Only chaos would result from the assumption of power by the judiciary to measure the validity of legislation by the motivating factors that induced a Legislator to support the measure.”

The dissenting opinion refers to numerous New Jersey decisions stating that amendments to comprehensive zoning ordinances to take care of hardship cases, or to meet changes in the character of the neighborhood, should be treated as “quasi-legislative-judicial municipal activity” and thus subject to court scrutiny of the motives and personal interest of those who vote for it. The dissenting opinion concludes, “To give judicial approval to conduct so obviously opposed to the traditional standards of morals and ethics required of our public officials is to admit a failure in our judicial system; and I, for one am unwilling to concede that an ordinance enacted under such circumstances is beyond the reach of the judicial process.”

The Schauer decision was discussed in 57 Mich.Law Rev. 423, its author noting, “Courts and secondary authorities subscribe to the general rule that when a municipal council exercises legislative power delegated to it by the state, the courts will not consider the motives or self-interest of the members in passing upon the validity of the action. A government body acts in a legislative capacity when it prescribes a general course of conduct applicable to persons or property within its jurisdiction. Action in a quasi-judicial capacity occurs when the body grants or denies a privilege based upon a finding of fact that circumstances exist which require the application of a general rule.” Referring to the case of Aldom v. Borough of Roseland, 42 N.J. Super. 495, 127 A.2d 190, the author criti-cised its holding that a zoning amendment can be treated other than legislative, saying “ * * * the nature of the legislative function should not be altered because evidence is received upon which a decision to legislate is predicated. The reasoning of the Aldom case seems to confuse an amend-atory zoning ordinance with the granting of a variance.”

In Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321, 323, the Supreme Court of Virginia in holding that courts may not invalidate an amendment to a zoning ordinance because of the personal or financial interest of members of the City Council voting on it said, “ * * * where a member of the legislative branch of the government offends in these particulars in performance of a purely legislative duty, he is answerable to the electors from whom he derived his official position and not to the courts which have no power to inquire into the motives which prompted his action on a purely legislative matter.” * * * “An ordinance that regulates or restricts the use of property regulates or restricts conduct with respect to that property and is purely legislative.” * * * “It would be flagrantly inconsistent to hold that the adoption of a comprehensive zoning law is legislative in character and that the amendment to such a law was a quasi-judicial act. If the original act is wholly legislative, an amendment to it partakes of the same character.” * * * “ * * * the common council was acting in a legislative capacity, and the courts generally hold they cannot inquire into the motives of members of a municipal council for the purpose of determining the validity of ordinances, which are not contractual, but wholly legislative-in character.”

Turning to other authorities that have considered the question, we are constrained’, to conclude that generally these authorities, support the view that an amendment to a. comprehensive zoning law is a purely legislative function. Typical is 8 McQuillin,. Municipal Corporations, (3rd Ed.) Sec. 25.-54, page 119, which states: “It is fundamental that the enactment of a zoning ordinance constitutes the exercise of a legislative and governmental function. It is an. exercise of legislative power residing in the state and delegated to a municipal corporation. Likewise, the amendment of a zoning ordinance is a governmental function.”

The most recent discussion of the subject-is contained in the Annotation, “Zoning— Inquiry Into Motive”, 71 A.L.R.2d 568. After noting that the authorities are not in. full agreement, it is there said, “Most fol-' low the general rule, applicable to municipal ordinances, that if a statute appears on its face to be constitutional and valid, the court cannot inquire into the motives of the legislature. Consequently, they refuse to con--•sider, in determining the validity of a zoning ordinance, the motives of the members •of the municipal zoning authority which approved or adopted the ordinance.” The annotator suggests a more even division of the authorities where there is a direct financial interest on the part of the legislator.

The question before us involves the proper relationship between the judiciary and the legislative departments of the government. See, 71 A.L.R.2d 569. On the one hand it is claimed that public policy dictates courts should strike down even purely legislative acts when those casting votes necessary to the passage of the ordinance or act have a financial or personal interest in the passage thereof. See, Piggott v. Borough of Hopewell, 22 N.J.Super. 106, 91 A.2d 667. On the other hand it is just as strongly claimed that public policy forbids one branch of government, judicial, from invalidating the legislative acts of a •co-ordinate branch of government by inquiring into the motives, personal or financial interest of its members voting thereon. See, Gardner v. City of Bluffton, 173 Ind. 454, 89 N.E. 853, 90 N.E. 898; Story v. City of Macon, 205 Ga. 590, 54 S.E.2d 396; Robertson v. City of Salem, D.C., 191 F. Supp. 604, 610; 37 Am.Jur., Municipal Corporations, Sec. 69, page 682. Those few adopting the former view experience some ■difficulty in drawing the line as to what is a sufficient interest on the part of a legislator to disqualify his vote if judicial scrutiny is undertaken.

In many jurisdictions the courts very properly have been spared this problem by the legislative body itself determining whether the personal or financial interest of a legislator in the outcome of the legislation shall disqualify him from voting in purely legislative matters and by statute or ordinance establishing the standards the courts are to apply.

On the facts before us we have concluded that while the related circumstances raise a suspicion, the evidence falls short of demonstrating that either of the two' Aider-men had a direct financial interest in the passage of the ordinance. We do not undertake to say how much personal interest, other than financial, they may have had.

The courts of this state have not yet held that there is an overriding public policy which requires them to scrutinize purely legislative action and to set aside resultant ordinances or statutes because of financial or personal interest of members of the legislative body participating in their enactment. On the facts presented in evidence concerning the interests of these two Aldermen, which at least to some extent are indirect and remote, we decline to adopt or apply such alleged public policy. These facts before us do not present a situation where this court can say that it is clearly in the public interest for the court to examine the personal interest, financial interest or motives of the members of the legislative body of the City in exercising its legislative function in enacting the amendment to the Comprehensive Zoning Ordinance of the City. See, Annotation, 133 A.L.R. 1261; La Rue v. Township of East Brunswick, 68 N.J.Super. 435, 172 A.2d 691.

Appellants have made numerous other contentions of error. They need not he examined in view of the result we have reached.

The judgment, including the restraining order it contains, is reversed.

All concur.

      . For New Jersey cases, see, McNamara v. Borough of Saddle River, 60 N.J.Super. 367, 158 A.2d 722; Aldom v. Borough of Roseland, 42 N.J.Super. 495, 127 A. 2d 190; S & L Associates, Inc. v. Washington. Twp., 61 N.J.Super. 312, 160 A.2d 635. Also, Low v. Town of Madison, 135 Conn. 1, 60 A.2d 774.

        . Por other support of this view, see R. I. Home Builders v. Budlong Rose Co., 77 R.I. 147, 74 A.2d 237.

      . Ordinarily there is a statute or ordinance involved which prohibits voting by a person who has a personal or financial interest in the outcome of the vote.

      . Pennsylvania in its constitution has made it the public policy of that state that a public official may not use his official power to further his own interests. See, Genkinger v. City of New Castle, 368 Pa. 547, 84 A.2d 303, 305(7). New Jersey, see, N.J.S.A. 40:55-1.4; Van Itallie v. Borough of Franklin Lakes, 28 N J. 258, 146 A.2d 111, 115; Hochberg v. Borough of Freehold, 40 N.J.Super. 276, 123 A.2d 46(4); Zell v. Borough of Roseland, 42 N.J.Super. 75, 125 A.2d 890. Connecticut: Mills v. Town Plan and Zoning Commission, 144 Conn. 403, 134 A.2d 250. Florida: Fossey v. Dade County, Fla.App., 123 So.2d 755-57.


text:
    Myron O. BURTON, Plaintiff-Respondent, v. Henry R. AUFFENBERG, Francis H. Auffenberg, James A. Auffenberg, Robert J. Auffenberg, and Joseph C. Schultz, d/b/a Nash Missouri, Defendants-Appellants.
    No. 30981.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.

      Hinkel & Carey, Harold D. Carey, Clifford L. Goetz, St. Louis, for defendants-appellants.
    Frank Mashak, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

By this action, growing out of the sale of a new automobile, plaintiff sought to recover actual damages of $1,817.94, together with interest on said sum and punitive damages of $10,000. The verdict and judgment below was for plaintiff for actual damages of $1,200, interest of $360, and punitive damages of $750, or a total of $2,310. Defendant prosecutes this appeal.

Plaintiff’s evidence tended to show that in 1955, and for at least part of 1956, the defendants, doing business under the registered fictitious name of Nash Missouri, operated an agency in St. Louis for the sale of Nash and Metropolitan automobiles. In the early part of March 1956, plaintiff inspected a car in defendants’ showroom, which the defendants represented to him as being a new 1956 Nash Metropolitan automobile. Plaintiff was not familiar with the year models of that make of car. Relying on the representations of defendants, plaintiff purchased the automobile for the time price of $1,817.94, paying $300 in cash and executing a note and chattel mortgage for the difference. The note and mortgage was shortly thereafter acquired by the Mutual Bank and Trust Company, of St. Louis.

Plaintiff took delivery of the car on March 15, 1956. Five days later he received from defendants, through the mail, an application for a Missouri certificate of title, made out on the form furnished by the State Motor Vehicle Registration Office of the Department of Revenue. The application was accompanied by a letter from defendants telling plaintiff to take “ * * * these papers to the License Bureau in order to get title in your name.” In this application, marked plaintiff’s Exhibit 10, the automobile was described as a 1956 Nash, Serial No. E9616, Engine No. 1G989466, having four cylinders and 10.63 horsepower. On the reverse side of the application was a form for the dealer or vendor to show the source of ownership, which the defendants completed and acknowledged before a notary public. Plaintiff took this application to the Motor Vehicle Registration Office in St. Louis, but was unable to obtain a certificate of title or a license for the car. Defendants’ objection as to the reason given plaintiff by the Motor Vehicle Registration Office was sustained.

Whether before or after he received the first application form is not clear from the evidence, but about March 25, 1956, plaintiff received from the Mutual Bank' a duplicate original copy of what is titled as a bill of sale for the car, but which in fact is a memorandum of the sale. He noted that in addition to his own signature it bore another purporting to be that of his wife, Ruth Burton, from whom he was separated at the time, and who had not signed the instrument. Plaintiff conferred with Charles Luetkemeyer of the Mutual Bank, and also with John M. Garlich, General Manager of the defendants’ business. He told Garlich that he wanted nothing to do with the deal, and Garlich told him he would have to contact the bank, because his note and papers were there. Later plaintiff was given a second bill of sale, dated May 15, 1956, signed by plaintiff and Garlich. Still later, on June 6, 1956, the original note and chattel mortgage was cancelled by the Mutual Bank and returned to plaintiff, and in lieu thereof plaintiff executed a new note and mortgage for the balance then remaining due. When they were returned to him plaintiff found that the original note and chattel mortgage, like the first bill of sale, bore the purported signature of Ruth Burton. Mrs. Burton, who was reunited with plaintiff in 1957, appeared as a witness and testified that she had not signed either the first bill of sale or the first note and chattel mortgage.

Plaintiff testified that between March and August, 1956, he contacted defendants at least once a month regarding his inability to obtain a certificate of title and license for the automobile, and each time was assured that the matter would be straightened out. About August 27, 1956, or a few days later, plaintiff finally received from defendants, through the mail, a second application form, prepared by them, identified as plaintiff’s Exhibit 18. In this application the car was described as a 1956 Nash, Serial No. E9616, Engine No. 16989466 having 6 cylinders and 23.44 horsepower. Plaintiff took this application to the Motor Registration Office and was again unable to obtain a certificate of title or a license. An objection to the reason given him was likewise sustained. Again he returned to the defendants, about September 1, informed them he had been unable to obtain a title or license “ * * * on account of the application being wrong” as to " * * * the horsepower and the number of the cylinders on the car * Plaintiff testified that he pointed out to defendants that on the first application the number of cylinders was stated to be 4 and the horsepower 10.63, while on the second application defendants had inserted in the form that the car had 6 cylinders and horsepower of 23.44. Defendants again promised him, plaintiff said, that they would take care of the matter.

Thereafter, around November 1, 1956, plaintiff received from defendants a third completed application, which was marked plaintiff’s Exhibit 19. Therein the automobile was described as a “1956 Nash-Metro,” Serial No. E9616, Engine No. 1698466, having 4 cylinders and 13.22 horsepower. Plaintiff presented this application to the Motor Vehicle Registration Office and was again refused a certificate of title and a license. Thereupon he went to the defendants, threw down the keys to the car, offered to return the car, which was outside on the street, and told them that he didn’t want anything to do> with the deal. Plaintiff testified that defendants threw the keys back and said that plaintiff would have to see the bank, and that plaintiff was responsible on the mortgage. A short period later, plaintiff, having neither a title or license, put the car in storage, where it has remained.

Plaintiff’s evidence further tended to show that the automobile which defendants had represented to him as being a 1956 Nash Metropolitan was in fact a 1954 Metropolitan. And Carl Rundquist, Administrative Assistant to the Director of the Motor Vehicle Office in St. Louis, and Anita M. Garson, in charge of the trouble file desk in that office, who handled problems arising from applications for titles, testified that if the applications and bill of sale had been presented to them to obtain a certificate of title and license for plaintiff’s automobile they would not have accepted them because of the erroneous descriptions of the car as set forth in the applications.

Defendants’ own evidence tended to show that the make of automobile known as the Metropolitan was a different car than that named the Nash, and that the former was manufactured, or at least assembled, in. England, while the latter was built in this country. Defendants’ evidence further was to the effect that the distributor for the Metropolitan in St. Louis zone was American Motor Sales Corporation; that acting on orders from its home office in Detroit, on December 8, 1955, the St. Louis Office of American Motors notified all of its dealers, including defendants, that on and after December 15, 1955, all Metropolitans sold should be registered with the State License Bureaus as 1956 models; and that the automobile which defendants sold to plaintiff was bought by defendants from American Motors on February 24, 1956. Defendants offered no evidence to explain the variations in the make, number of cylinders, and the horsepower, which appeared on the three applications they prepared for and furnished to plaintiff; nor did they offer any evidence to contradict the testimony of Mrs. Burton as to the falsity of the signature purporting to be hers which appears on the original bill of sale and on the first note and chattel mortgage.

A difference of opinion appears to exist as to the nature of plaintiff’s cause of action. Defendants regard it as one by a defrauded purchaser, who, upon discovering the falsity of the representation, attempts to repudiate the sale, tenders the return of the property, and sues to recover the purchase price paid, as in Schroeder v. Zykan, Mo.App., 255 S.W.2d 105. Plaintiff describes his action as one for fraud and deceit, but as we understand his brief, his claim is that the alleged fraud perpetrated by defendants consisted of obtaining plaintiff’s money and failing or refusing “ * * ⅜ to make an affidavit as to the pertinent information to enable plaintiff to obtain a title and license ^ the automobile he bought. * * * ” McClellan v. Sam Schwartz Pontiac, Inc., Mo., 338 S.W.2d 49 is cited in support of plaintiff’s position.

A dispute of this nature must be determined by the facts pleaded in plaintiff’s petition, and the relief sought. Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684; Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827. An examination of plaintiff’s petition discloses that except for the allegation as to constructive knowledge, plaintiff pleaded every element essential to state a claim based on a false representation. Powers v. Shore, Mo., 248 S.W.2d 1; Nash v. Normandy State Bank, Mo., 201 S.W.2d 299; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48. There is no allegation that defendants defrauded plaintiff by obtaining his money and wrongfully failing to execute and deliver a proper bill of sale to him, as in McClellan v. Sam Schwartz Pontiac, Inc., supra. We agree with defendants that the claim pleaded in plaintiff’s petition was based on the defendants’ alleged misrepresentation as to the year model of the car.

However, because of the points raised by defendants on appeal, it is immaterial whether the fraud was that of misrepresentation or that of wrongfully failing to give plaintiff a proper bill of sale. Defendants’ initial complaint is that Instruction No. 1, plaintiff’s combination verdict-directing and damage instruction, was prejudicially erroneous. The instruction is lengthy, covering three typewritten pages of the transcript, and no useful purpose would be served by quoting it in full. It seems to have been predicated on both the misrepresentation of defendants as to the year model and the defendants’ representation that they would furnish plaintiff with proper application papers and their failure to do so. It is sufficient for the point raised to say that after referring to plaintiff’s inability to obtain a title and license with the applications furnished by defendants the instruction continues:

“ * * * and if you further find that plaintiff thereafter on several occasions brought said matter to the attention of the agents and servants in charge of and at defendants place of business, as aforesaid, if so; and that he requested them to cancel the sale and papers he was .required to sign by them, if so, and they refused to do so or refund his money, if so; and if you further find that sometime in November 1956, plaintiff was still unable to obtain a Missouri certificate of title or license plates to the automobile he bought from defendants by reason of their failure to provide him with the correct applications for title and license, if so; and that he did then attempt to return the said automobile at their place of business and cancel the whole deal, if so, but that defendants, by and through their agents and servants refused to do so, if you so find; * * *.w

Defendants assért, among other grounds of criticism, that the instruction was deficient in that it did not require the jury to find: (1) that the plaintiff had repudiated the transaction in a timely manner; and (2), that when plaintiff offered to return the automobile it was in as good a condition as when he received it. The rule is that where the contract is executory because something remains to be done, Martin v. John Clay & Co., Mo.App., 167 S.W.2d 407, a buyer who discovers that he has been defrauded has an election of remedies. He may repudiate the contract, return or offer to return the property, and sue for the amount he has paid, plus interest on his money and any resulting incidental losses and expenses. Or he may affirm the contract, retain the property, and sue for the difference between what he paid and its actual value. Schroeder v. Zykan, Mo.App., 255 S.W.2d 105; Aeolian Co. of Missouri v. Boyd, Mo.App., 65 S.W.2d 111; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48. If the buyer elects to pursue the first of those remedies he must show: (1) that he repudiated the contract and tendered the property to the seller within a reasonable time after he discovered, or in the exercise of ordinary care should have discovered, the ground for repudiation of the contract, Hymer v. Dude Hinton Pontiac, Inc., Mo.App., 332 S.W.2d 467; Jones v. Norman, Mo.App., 228 S.W. 895; and (2), that at the time he tendered the return of the property it was in substantially as good a condition as when he received it, Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827; Smith v. G. F. C. Corp., Mo.App., 255 S.W.2d 69; Winscott v. Frazier, Mo.App., 236 S.W.2d 382; Hymer v. Dude Hinton Pontiac, Inc., supra.

The question of what is a reasonable time for repudiation is a question of fact for the jury when fair-minded men reasonably may differ about it. Aeolian Co. of Missouri v. Boyd, supra; Kesinger v. Burtrum, Mo.App., 295 S.W.2d 605; and it is only when the delay is so long that there could be no divergence of opinion about its consequences that the court is warranted in declaring the delay unreasonable as a matter of law. Aeolian Co. of Missouri v. Boyd, supra; Hymer v. Dude Hinton Pontiac, Inc., supra. In that connection, it may be noted that the buyer’s delay in repudiation may be defended or explained where it is shown that the seller’s action or assurances induced the delay. Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651; Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S,W.2d 830; Aeolian Co. of Missouri v. Boyd, supra; Laumeier v. Dolph, 145 Mo.App. 78, 130 S.W. 360.

Assuming plaintiff’s theory of his cause of action to be as stated, he accepted delivery of the automobile on March 15, and according to his own testimony he did not attempt to repudiate the contract, offer to return the car, and demand the return of his money until sometime in November. Ordinarily a delay of over seven months might well be considered unreasonable as a matter of law, Aeolian Co. of Missouri v. Boyd, supra, but plaintiff also testified that the defendant repeatedly assured him during that period that the matter of his inability to obtain a certificate of title and license with the applications furnished him would be straightened out. Such evidence may preclude plaintiff’s delay from being found to have been unreasonable as a matter of law, but the issue of whether plaintiff acted within a reasonable time remained a question of fact for the jury, and in failing to submit that issue plaintiff’s Instruction No. 1 was prejudicially erroneous. ■ Under the authorities cited the instruction was likewise erroneous in failing to require the jury to find that the automobile was in as substantially as good a condition when tendered to the defendants as when plaintiff received it. In fact, had that issue been hypothesized its submission would have been erroneous for there was not a shred of evidence as to the condition of the automobile at the time of the tender.

Inasmuch as the case must be remanded for retrial and the questions may again arise, it is in order to touch briefly upon other points raised by defendants. We cannot accept defendants’ contention that plaintiff’s evidence did not authorize a submission of plaintiff’s claim for punitive damages. Parker v. Green, Mo.App., 340 S.W.2d 435. But we concur in their opinion that plaintiff should not have been permitted to cross-examine defendant Francis H. Auffenberg in general as to his other financial interests, since plaintiff sought to recover punitive damages against all five defendants. Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43. While it may have been proper to cross-examine defendant Auffenberg as to the business relationship between him and the witnesses who appeared in behalf of defendants, the cross-examination ranged far beyond that point.

For the reasons stated, the Commissioner recommends that the judgment be reversed and that the cause be remanded for a new trial.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is .reversed and the cause remanded for a new trial.

ANDERSON, P. J.,' WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.


author: ANDERSON, Presiding Judge.

text:
    James M. NELSON, (Plaintiff) Appellant, v. Frances Reyburn NELSON, (Defendant) Respondent.
    No. 30942.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.

      Walter Wehrle, Thomas W. Wehrle, and Wehrle and Wehrle, Clayton, for appellant.
    Claude McElwee, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an appeal by plaintiff, James M. Nelson, from an order of the circuit court entered February 10, 1961, on the motion of defendant, Frances Reyburn Nelson, to modify a decree of divorce theretofore granted defendant on November 5, 1952, increasing the allowance to defendant for the support and maintenance of Valle Rey-burn Nelson, the minor child of the parties, whose custody was awarded to defendant by the divorce decree, from $230.00 a month to $450.00. The Court also allowed defendant the sum of $600.00 as and for an attorney’s fee.

At the time of the divorce the child was two years old, and at the time of the trial below his age was ten years. When the divorce was granted, respondent and the child lived with defendant’s mother and father. They continued to reside with respondent’s parents until 1955, when respondent’s father died, and from that date lived with respondent’s mother until the year 1957. At the time of the trial respondent lived with the child in her own home in Clayton, Missouri.

Respondent testified that the amount allowed for support was not in accord with the way she was reared, and that she had to “stretch” the money received and use some of her own to provide for the child. She has purchased secondhand clothing for the child at a “resell it” shop in Clayton, and bought his shoes and underwear from Montgomery Ward. She stated she bought his clothing in sizes too large for him so that they could be worn for a long time. She bought his shirts too big and would take tucks in the sleeves and let them out as he grew older. Although Valle is pigeon-toed, she was unable to have corrective shoes for him. He has crooked teeth, but braces for them are too expensive for her to buy.

Respondent further testified that she has sent Valle to the Rossman School, which is located on Delmar Boulevard near Clara Avenue. This school is a private school and is supposed to have a high standard of education. The tuition is $300.00 or $400.00 a semester plus extra expenses as lunches, transportation and books. Respondent has been a member of a car-driving pool formed with other mothers in order to save transportation expense. She has been driving twice a week. She has been driving a 1951 model Chevrolet.

It has been respondent’s desire that Valle learn to ride horseback, and in order that he might do so, respondent has been teaching a class of beginners in horseback riding at the St. Louis Country Club. In this way she has been able to secure lessons for Valle at a cheaper rate. He takes horseback riding lessons once every two weeks. Respondent is able to pay for these lessons, but in doing so has denied to herself other things. Valle belongs to the Cub Scouts, and respondent is a Den Mother. She bought his Scout uniform, new, at Famous-Bar department store because there was no place where she could purchase it secondhand. Valle is very athletic and desires athletic equipment, which respondent is unable to buy because she cannot afford it. However, she did buy him a sailboat, a baseball glove and a used tennis racket.

Respondent further testified that money has been very important in rearing Valle; that she had to “stretch” her money in order to do the best for him, and has become rather adept at it. She buys articles of food at the A. & P. store in quantities that are on sale, but does not purchase steaks or expensive meats. She stated that the money spent for the boy’s support has had an effect on her own activities and her ability to provide things for herself. She painted her own house, and furnished it with secondhand furniture. She was unable to have her automobile washed. She was not able to go to a hair dresser except on rare occasions.

Respondent desires to have Valle attend Country Day School, where most of the boys from Rossman School go. The expenses at Country Day, for each term for the fifth to the seventh grade, are $950.00 a term, plus $485.00 a year for extra expenses. After the seventh grade these expenses are increased. Respondent testified she would be unable to pay tuition for Valle at Country Day School and other expenses, on the allowance of $230.00 a month she had been receiving under the original decree.

Appellant has a one-fourth interest as cestui que trust in a trust estate created under the will of James M. Nelson, Jr. In 1952 one-fourth of the value of this estate was approximately $176,000.00, and in 1959 one-fourth value amounted to approximately $286,000.00. In 1952 appellant’s share of the income from this trust was approximately $6,500.00 and in 1959 approximately $9,400.00.

Appellant was also the beneficiary of another trust estate created by James M. Nelson. His interest is one-fourth. In 1952 one-fourth of the value of the corpus of this estate was approximately $74,000.00 and in 1959 approximately $180,000.00. In 1952 appellant’s share of the income from this trust estate was approximately $2,700.-00 and in 1959 approximately $3,800.00.

Appellant is also an income beneficiary of a trust created by Lewis C. Nelson. The income from this trust in 1959 was $3,760.-00, and in 1960, $3,860.00. The last incomé paid appellant from this estate was on March 18, 1960. To the date of the hearing there was an accumulation of income amounting to $2,115.45.

Appellant is also a beneficiary of another trust created by James M. Nelson, Jr. He has a one-fourth beneficial interest in this estate. In 1959 appellant’s share of the income from this trust was $2,061.67.

Appellant was also the beneficiary of a revocable trust created by himself, and which was revoked in 1954. At the time the trust was revoked the assets thereof were delivered to appellant. These assets were, according to a statement in respondent’s brief, of the value of $413,048.62. He also had a checking account in the Harris Trust and Savings Bank of Chicago, Illinois. Between April 10, 1959 and July 14, 1960, appellant deposited many thousands of dollars in this account. His balance in the account on July 14, 1960 was $891.66.

Appellant is 41 years old. He has remarried since his divorce from respondent. No child has been born of this last marriage. He lives with his present wife near God-frey, Illinois, on a tree farm consisting of about 46 acres. The house in which appellant and his wife live cost him $61,296.-80. Respondent’s counsel tried to elicit from appellant the amount of income received from this farm but was unsuccessful. Appellant finally did say that he received a respectable income for the previous year. At the trial plaintiff’s counsel, in open court, stated that the depositions taken by respondent show that appellant has sufficient income to meet any order the court might enter in the cause. On this appeal there is no contention that appellant’s income is insufficient to pay the amount of the allowance entered by the trial court.

Appellant testified that he believed it would not be a good thing for his son to attend a private school, especially Country Day; that it puts a person at a disadvantage to attend such schools, because of the sheltered life which the child leads in such a school. He also stated that it tends to snobbery. Appellant further testified that he attended two private schools in the St. Louis area, namely, Country Day School and John Burroughs. He also attended Phillips Academy in New England, Ash-ville School for boys at Ashville, North Carolina, and Yale University, where he obtained a degree. He further testified that he definitely felt underprivileged because his parents sent him to private schools.

Appellant contends that the trial court erred in increasing the allowance for support and maintenance from $230.00 per month to $450.00 per month, for the reason that there is no probative evidence as to the needs of the child. It is further urged that the increase made was excessive.

In appellant’s brief it is conceded that there has been a change of conditions since the amount of support was fixed at $230.00 per month; that at the time of the original allowance Valle was but two years of age; that at the present time his needs are greater and that the cost of living has increased since the date of the original order. It is also conceded that appellant has adequate property and income to fully support and educate his son. But it is urged that the judgment should be reversed because there was no evidence of monthly household expense, on the amount allocated as the child’s share of those expenses; that there was no evidence as to other personal expenses, such as dental, medical, clothes, transportation costs, spending money or other necessary expenses.

It is clear from the evidence in this case that Valle is entitled to an allowance for his support in excess of the bare necessities of life. The evidence shows that his father is a man of means, and under the circumstances shown, Valle is entitled to be maintained according to the station in life occupied by a person of his father’s financial standing. It is not unreasonable for such a child to be sent to private schools, attend summer camps, and to enjoy certain privileges not usually had by boys whose fathers are not as able to provide such advantages. But before a court can exercise its discretion in awarding an amount to meet the child’s necessities and the other expenditures to which the child is entitled there should be sufficient evidence adduced as to the cost of those items. In the case at bar the evidence is too meager for any court to intelligently arrive at the proper amount that should be allowed respondent for the support of Valle, without resort to speculation and conjecture. This, a court should never do. While it is impossible to give testimony of the exact amount required in such cases, we believe that evidence could have been produced in this case which would have given the court some guide to intelligently arrive at a sum which would approximate the amount necessary to meet the needs of the child. While there was some evidence adduced as to the cost of certain items necessary for the proper maintenance of the child of the parties, most of the testimony given by respondent consisted of conclusions which furnished no guide to the court in arriving at the proper amount to be awarded.

In view of what we have said it is apparent that this court is in no position to pass upon the issue of excessiveness which is appellant’s second point. It does appear, however, that the evidence could be more fully developed. For that reason the judgment of the trial court is reversed and the cause remanded.

WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.

' RUDDY, J., not participating.