text:
    Lionel C. MOISE and Anna Mae Moise, his Wife, Plaintiffs-Respondents, v. Paul J. ROBINSON and Hazel J. Robinson, his wife, et al., Defendants-Appellants.
    No. 36284.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 30, 1975.

      Robert C. Dodson, Pannell, Dodson & Robinson, Festus, for defendants-appellants.
    Samuel Richeson and Nicholas G. Gasa-way, Richeson, Roberts, Wegmann, Gasa-way, Stewart & Schneider, Hillsboro, for plaintiffs-respondents.
   SIMEONE, Presiding Judge.

This is an appeal by defendants-appellants, Paul J. Robinson and his wife, Hazel, from a judgment entered by the circuit court of Jefferson County quieting title to certain land in the plaintiffs-respondents, Lionel C. and Anna Mae Moise, his wife, adjudging that the defendants-appellants have no interest in said premises. For reasons hereinafter stated, we affirm the judgment.

Plaintiffs, Mr. and Mrs. Moise, on June 22, 1972, filed their petition against certain persons including the defendants Robin-sons, seeking to quiet title to a certain parcel of land in Jefferson County consisting of five acres “more or less.” The Robinsons counterclaimed also seeking to quiet title. Trial was held in January, 1974.

The sole issue presented by this trial and appeal is who has, as between the Moisés and the Robinsons, a superior “title” to the disputed five-acre tract in Jefferson County. Both parties are innocent; both have sincere claims; the Robinsons have been paying taxes on the disputed “property” since 1954 under a collector’s deed dated February 28, 1962, until the date of suit, 1972; the Moisés purchased the property in good faith from the Halahans when they saw a “for sale” sign on the property in 1966. They claim under a deed from the Halahans which describes the property in detail and which conforms to the description of the property in an original deed dated June 27,1930 from Arthur J. and Lily M. Brewster to Iowa Lee Roberts.

One or the other of these innocent parties must suffer, and we are faced with the unpleasant and difficult task of determining who has a “better” title between them. The task is not an easy one for we are bound by the facts which can only be described as a gallimaufry.

The issue between the parties arises because the collector of Jefferson County over the years issued five separate collector’s deeds to certain property which both parties claim. In order to understand some of the complicated facts, so that we may resolve the issue according to law, it is necessary to set them forth in some detail.

On June 27, 1930, Arthur J. and Lily M. Brewster, by general warranty deed, conveyed to “Iowa Lee Roberts” and “her” heirs and assigns a tract of land in Jefferson County described in the deed as follows:

“Beginning at a point on the North Line of Lot Two (2) of the Southwest Quarter of Section Eighteen (18) in Township Forty (40) North in Range Three (3) East, 825 feet west of the North East corner of said Lot 2; Thence South and parallel with the East line of said lot to the north line of a 30 foot Public Roadway; thence westwardly along the North line of said Road to a point 990 feet West of the East line of said lot; thence North to the North line of said lot; thence East with said North line, 165 feet to the place of beginning, and containing 5 acres more or less.”

Over the years, between 1946 and 1964, five collector’s deeds were executed conveying to various persons Part of lot 2 in the southwest quarter, section 18, Township 40, Range 3. These deeds are as follows:

1. On November 4, 1946, the collector of Jefferson County conveyed by collector’s deed “5 acres-Pt. lot 2 SW Vt, Sec. 18, Twp. 40, R. 3” to John Esther of Kimmswick, Missouri. This deed recited that whereas the taxes on the above property for the years 1939-1945 were “returned delinquent in the name of Irwin Roberts” the property was sold to John Esther.

2. The second collector’s deed was made on December 8, 1947. This deed recited that whereas Harry E. Roche produced a certificate of purchase for the sale of property returned delinquent in the name of Irwin Roberts, for taxes due 1940 through 1944, the property described as “Part of Lot 3 [?] of the Southwest quarter of Section 18, Township 40, Range 3, containing 5 acres" was conveyed to Harry E. Roche.

3. The third collector’s deed, made October 23, 1956, conveyed to R. J. Liebe “Pt Lot Two (2), SW Vi Section Eighteen (18) Township Forty (40), Range Three (3) Containing 55 acres [?]” for taxes delinquent in the name of Harry E. Roche (not Roberts) for the years 1949 through 1953.

4. The fourth such deed was to the appellants Mr. and Mrs. Paul J. Robinson. This collector’s deed conveyed on February 28, 1962, “Pt. Lot 2 SW ⅝, Section 18, Township 40, Range 3” to the Robinsons because of delinquent taxes for 1954 through 1958 on land in the name of Harry E. Roche. It is to be noted that no acreage is shown on the deed. This is the deed upon which the Robinsons claim their title to the disputed property.

5. The fifth deed, from which the Moisés eventually obtained their title, was a collector’s deed conveying “5 Acres — Pt Lot 2, SW in Survey # 3053, Section 18, Twp. 40, R 3, School District R — 2, Road District # 55” to August D. Mastis and Norma M. Mastis. This deed was executed because of nonpayment of taxes on said property in the name of Irvin [not Irwin] Roberts for the years 1956 through 1960. The property was purchased at public sale by Walter C. Lewedag. This deed was made on February 29, 1964.

In 1966, the plaintiff, Mr. Moise, saw a “for sale” sign on a tree in front of the property now claimed by the Moisés. The sign read: “5 acres $600, John Holahan, 2918 Lemp Ave., St. Louis, Mo.” Mr. Moise took the sign down and “contacted the man and bought it.” Mr. and Mrs. Moise received a general warranty deed from “John A. Holahan, a/k/a John A. Halahan and Helen I. Holahan, a/k/a John A. Halahan [sic].” This deed was dated July 27, 1966 and conveyed to Mr. and Mrs. Moise “Part of Lot Two (2) of the Southwest quarter of section 18, Township 40 North, Range 3 East, described as follows:” [then followed the exact description of the land as conveyed in the Brewster deed to “Iowa Lee Roberts”].

The Halahans had, on July 9, 1964, received a quit claim deed from August and Norma Mastis. They, of course, had received the fifth collector’s deed in February, 1964. The deed from Mastis to Hala-han conveyed “5 acres Part lot 2 SW ¼ in section 18, township 40 Range 3, School district R-2, Road district 55 — beginning” [then followed the exact description as conveyed in the Brewster deed to Iowa Lee Roberts]. The Halahans in turn conveyed the same description of the property to the Moisés on July 27, 1966, except the beginning words “5 acres” were not used.

Mr. Moise met Mr. Halahan in St. Louis. “[W]e went out there and looked [the property] over, and then we came over to the abstract company. That’s where we closed the deal. . . . ”

The land purchased by the Moisés is adjacent to land they purchased in 1952. There is no dispute that the Moisés own the land purchased in 1952. The land which is the subject of this controversy is “very hilly and rocky, but it was a good recreation place for us [Moisés] at the time we bought it.” There were no improvements on the land obtained from the Halahans, but the Moisés “took care of it and put up different things and used lumber off of it. . . . ” They cut trees, firewood and “things like that” and also had the land surveyed. Mr. Moise testified that, although he met the Robinsons in St. Louis, he never saw them on the disputed property. From 1967 through 1973, Mr. and Mrs. Moise have paid, to the county collector, real estate taxes on property described on the tax receipts as “PT LOT 2 SW ⅛, Sch. Dist. R-2, Rd. Dist. 55, Sec. 18, Twp. 40, Rng. 3, A. 5.”

Prior to the institution of this action to quiet title by the Moisés, they obtained a quit claim deed dated May 3, 1972, from John and Pauline Esther, the grantees of the first collector’s deed. On May 5, 1972, they also acquired a quit claim deed from R. J. Liebe, the grantee of the third collector’s deed in 1956. These quit claim deeds described the land exactly as that described in the Halahan’s deed to the Moisés and the Mastis’ deed to the Halahans. Each of the deeds recited that “[i]t is the intent of grantor[s] to convey all that right . acquired in that certain Collectors deed. . ” However, the Moisés did not obtain any quit claim deed from Harry E. Roche.

At trial, Mr. Moise testified that he had a “title run” on the property. The “certificate of title” relating to the land described in the Mastis to Halahan and Halahan to Moise deeds shows that as of May 7, 1973, the title still was vested in “Iowa Lee Roberts” [not Irwin or Irvin], and subject to any outstanding interests, if any, of the Robinsons and Moisés by virtue of tax deeds and quit claim deeds. Mr. Moise also had the land surveyed by a registered land surveyor.

Mr. Mastis, at trial, testified that while he owned the disputed property he never saw Roberts, or Roche or the Robinsons on the land.

Mr. Ronald Dunnegan of St. Paul Title Company, and formerly of the Jefferson County Abstract Company, testified that the property shown on the certificate of title was vested in “Iowa Lee Roberts” as of May, 1973, subject to any outstanding interests. He also testified that he “can’t say” that the “series of [five] tax deeds” “are [sic] directly on this property” because the legal descriptions are “indefinite.” He testified that all of the descriptions on the five tax deeds were “basically” the same, but that his company would not insure the title because the description contained “in those five tax deeds” does not “meet the standards required by” the company. They are “actually indefinite, and the property could not be located.” He testified that the description of the property contained in the deeds from Mastis to the Halahans, from the Halahans to the Moisés, and the quit claim deeds from the Esthers to the Moisés and from Liebe to the Moisés were the same. The descriptions in all these deeds were by metes and bounds, and were the same as the legal description in the deed from the Brewsters to Iowa Lee Roberts in 1930.

The defendants’ evidence consisted of the testimony of Mr. Paul J. Robinson. He testified that he purchased the five-acre tract of land in 1959 and received a collector’s deed; that he paid the back taxes from 1954 to 1959 and has paid taxes every year since then, including 1972. He identified the tax receipts that he received upon the payment of taxes from 1959 through 1972. He testified that he went onto the property “[a] couple or three times a year,” to “target practice” with a “pistol.” He never put up any fences or improved the property, and never cut timber or grass or “anything.” Over the years, he never saw the Moisés. He testified that one time in the early ’60’s, he “signed an easement for the State Highway to one twelth [sic] of an acre off of the land when they built [highway] ‘WW’ and another time I was out with a shade tree from St. Louis [sic] to give them the right-of-way. They said they couldn’t find nobody but me, and I assigned the right-of-way for them to cut the underbrush and so forth from under the high line.” He admitted that he never had a certificate of title but did receive a collector’s deed to “Pt. Lot 2, Southwest ¼, Section 18, Township 40, Range 3.”

Following the hearing, the trial court entered its undated order and judgment. The court found that Mr. and Mrs. Moise “are vested with fee simple title in and to real estate” described in the petition and deeds from Mastis to Halahan to the Moisés and in the quit claim deeds from Esther and Liebe. The court further found in favor of the Moisés on the Robinsons’ counterclaim, and adjudged that none of the defendants has any “right, title estate or interest” in the premises, thus quieting title in the plaintiffs, the Moisés.

In due time, the Robinsons perfected their appeal to this court. The Robinsons contend that the trial court erred in failing to find that they had superior title because (a) the evidence shows the legal descriptions of all of the collector’s deeds are basically the same, (b) they have paid taxes on the property for the years 1954 through 1958 and have received a collector’s deed which extinguished the rights of Esther, Roche and Liebe (who had received prior collector’s deeds), (c) they paid the real property taxes from 1959 to 1972 and, hence, the collector’s deed to Mastis in 1964 is invalid, and (d) since the Mastis’ deed is invalid, the Halahans’ deed to the plaintiffs, Moisés, is also invalid — a grantor can convey no better title than he has.

The Robinsons argue that the collector’s deed constituted prima facie evidence of title and, having paid the taxes for 1954 through 1958, the collector’s deed they received in 1962 extinguished any interest of Roberts (?), Esther, Roche or Liebe, who had réceived prior collector’s deeds. They rely on § 140.460(2) and Shaw v. Armstrong, 361 Mo. 648, 235 S.W.2d 851 (1951) [overruled on other grounds in Journey v. Miler, 363 Mo. 163, 165, 250 S.W.2d 164, 166 (banc 1952)], for the proposition that the collector’s deed in 1962 and the payment of taxes from 1954 through 1958 extinguished the rights of persons claiming under earlier collector’s deeds.

They also argue that since they paid the taxes from 1959 to the date of suit, the Mastis’ deed of February 29, 1964 was invalid as the taxes for 1956 through 1960, the years during which the Mastises paid taxes, had been paid by them — the Robinsons. They rely on § 140.530, RSMo 1969, and Huber v. Pickier, 94 Mo. 382, 7 S.W. 427 (1888), for the proposition that when a person pays taxes on property under a collector’s deed and a later deed is given and such later grantee pays the same taxes, the taxpayer earlier in time has superior title.

They argue too that the Moisés’ warranty deed from Halahan and the quit claim deeds from Esther and Mastis are of no value because, if the collector’s deed to Mastis is invalid, the Mastises can convey no better title than they have to the Hala-hans and, hence, the Moisés acquired nothing, since a grantor can convey no better tile than he has.

This is a suit to quiet title by both the Moisés and the Robinsons. There are certain general principles relating to suits of this nature. A suit to quiet title is a special statutory action to adjudge the respective estates, titles and interests of claimants in the land. Lloyd v. Garren, 366 S.W.2d 341, 344 (Mo.1963); § 527.150; Rule 93.01. In proceedings under § 527.150, the court:

“may hear and finally determine any and all rights, claims, interest, liens and demands, whatsoever of the parties, or any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them ... or any one of them . . . .” § 527.150(2).

In these proceedings the court must ascertain and determine the rights of the parties under the pleadings and evidence, grant such relief as may be proper and determine the “better” title, as between the parties to the proceeding, though a title superior to the rights of either party may be held by a stranger. Johnson v. McAboy, 350 Mo. 1086, 169 S.W.2d 932, 934 (1943); Gaskill v. Cook, 315 S.W.2d 747, 754 (Mo.1958).

Where each party to a quiet title action is claiming title against the other, the burden of proof is upon the respective parties to prove better title than the other. Baxter v. Vasquez, 501 S.W.2d 201, 206 (Mo.App.1973); Johnson v. McAboy, supra, 169 S.W.2d at 935; Gaskill v. Cook, supra, 315 S.W.2d at 754. Plaintiffs are not required to show a title good against the whole world, but only a title superior to the defendant’s. Hall v. Hudgins, 277 S.W.2d 637, 639 (Mo.1955); Gaskill v. Cook, supra, 315 S.W.2d at 754. The question is which has the better title. A claimant must prevail on the strength of his own title and not upon any weakness in the title of the other claimant. Hunott v. Critchlow, 365 Mo. 600, 285 S.W.2d 594, 603 (1955); Hall v. Hudgins, supra, 277 S.W.2d at 639.

This being an equitable action, we are required to review both the law and the evidence and reach our own independent conclusions giving, of course, due deference to the superior opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). We are, however, not to reverse the decision of the trial court unless we find it to be erroneous. Baxter v. Vasquez, supra, 501 S.W.2d at 206.

The law relating to the collection of delinquent taxes was adopted in 1933. Laws, Missouri 1933, p. 425 et seq. Known as the Jones-Munger Act, it provides a comprehensive scheme relating to the collection of delinquent taxes. § 140.010 et seq. Section 140.460(2) provides that a deed of conveyance by the collector for delinquent taxes “shall be prima facie evidence” of a good and valid title in fee simple in the grantee. Shaw v. Armstrong, supra, 235 S.W.2d at 857. However, while a tax deed is prima facie evidence of title, this does not prevent an opponent from offering evidence at variance with the title. Hartley v. Williams, 287 S.W.2d 129, 135 (Mo.App.1956).

After thoroughly considering the contentions and authorities of the appellants-Rob-insons, we must conclude that the trial court was not erroneous in reaching the result it did.

The Robinsons’ claim is based on their 1962 collector’s deed and the fact that they have paid the taxes for many years. The collector’s deed they received described property as “Pt. Lot 2 SW ¼, Section 18, Township 40, Range 3.” This was clearly an incomplete description and fails to describe the land with reasonable certainty and, as such, the deed is void. While the Robinsons rely on § 140.460, RSMo, a tax deed which does not describe the property with reasonable certainty is defective. Cf. § 140.530, RSMo 1969; Costello v. City of St. Louis, 262 S.W.2d 591, 595 (Mo.1953); Sharp v. Richardson, 353 Mo. 138, 182 S.W.2d 151, 153 (Mo.1944). See Roth v. Gabbert, 123 Mo. 21, 27 S.W. 528, 529 (1894), and Western v. Flanagan, 120 Mo. 61, 25 S.W. 531, 532 (1894).

In Western v. Flanagan, supra, a tax deed describing the land as two acres in the N.W. ¼ of section 6, township 49, range 33 was defective. 25 S.W. at 531. The Robin-sons’ deed is similar. It does not describe the property conveyed by the tax deed with reasonable certainty. It does not even show the number of acres. All that it shows is that some part of lot 2 in the southwest quarter, section 18, township 40, range 3 was conveyed. Since the land described cannot be identified with reasonable certainty, it is ineffective to pass an interest. See 26 C.J.S. Deeds § 30 c, pp. 650-651 (1956). Mr. Dunnegan of St. Paul Title testified that he couldn’t say that the tax deeds were “directly on this property,” because the legal descriptions were indefinite.

This same rationale would, of course, be applicable to all five of the tax deeds, including the deed to Mastis in 1964. That deed, while similarly describing the property, does, however, contain additional descriptions showing the amount of the acreage, the survey and the school and road districts. But although the same rationale is applicable to the Mastis deed as to the Robinsons’ deed that the description is ineffective, and although we agree with appellants that a person cannot give a better title than he has, it does not follow that the interests of the Moisés are inferior to the interests of the Robinsons. Under the facts, we believe, as did the trial court, that the Moisés’ claim is superior to the Robinsons’.

Although Mastis may not have obtained a good and valid title to the disputed property, yet the deed of the Moisés was sufficient in our opinion to constitute color of title to the property.

“It is irrelevant to the issues in this case that none of [the] deeds may have conveyed good title. ‘Although the instrument under which color of title is claimed may be actually void and convey no title, if it purports on its face to convey the title to the land in question by appropriate words of transfer it will constitute color of title.’ ” Moran v. Roaring River Development Company, 461 S.W.2d 822, 829-830 (Mo.1970), quoting Jamison v. Wells, 7 S.W.2d 347, 348 (Mo.1928).

Plaintiffs possess a general warranty deed buttressed by two quit claim deeds which contain an adequate legal description of the disputed tract. The deed contains sufficient words of transfer. And, as stated, a deed which purports on its face to convey title to land by appropriate words of transfer constitutes color of title. The plaintiffs’ deed satisfies these requirements. The deed identifying the land constitutes color of title and it, together with other evidence, is supportive of an asserted claim of ownership. It has long been the principle that a party in possession of described lands under a claim of ownership and color of title has a better title than one who has a title which is void. Johnson v. McAboy, supra, 169 S.W.2d at 935; Hall v. Hudgins, supra, 277 S.W.2d at 640.

There was sufficient evidence for the trial court, based upon the credibility of the witnesses, to conclude that the Moisés possessed the land under a claim of ownership and color of title. Mr. Moise testified that “we took care of it and put up different things and used lumber off of it. . ” We cut “trees, firewood and things like that. . . . ” Acts which constitute possession depend upon the facts of a particular case. The nature and location of the property, the uses to which it is put, and all the circumstances must be considered. Frazier v. Shantz Real Estate & Investment Co., 343 Mo. 861; 123 S.W.2d 124,131—132 (1938). Here the property was rocky and hilly; it consisted of second growth timber and it was adjacent to the land which was purchased by the Moisés in 1952, title to which is undisputed.

Hence, the Moisés had a deed containing a good, legal description, they had color of title, and they were in possession under a claim of ownership.

On the other hand, the Robin-sons’ claim consists of a tax deed which is void and consists of the fact that they have paid taxes since 1954 on a parcel of property described in the deed as “Pt. Lot 2 SW ¼, Section 18, Township 40, Range 3.” It is undisputed that the Robinsons paid taxes on some property containing the same general description as in the deed they received. But, whatever remedy they may have against the collector, the mere payment of taxes does not create title. Conran v. Girvin, 341 S.W.2d 75, 91 (Mo.banc 1960); Dameron v. Jamison, 143 Mo. 483, 45 S.W. 258, 260 (1898). The argument of the Rob-insons that the collector’s deed is prima facie evidence of a good title is without merit since the deed does not describe the property with reasonable certainty. Western v. Flanagan, supra, 25 S.W. at 532. And their argument that their deed extinguishes the interests of the grantees of the prior collector’s deeds is without merit because this would also be applicable to the Mastis’ deed, since the Mastis’ deed was subsequent to theirs and would have a similar effect of extinguishing the Robinsons’ claim. The contentions of the Robinsons are such, we believe, that they seek to establish their claim on the weakness of the plaintiffs’ claim, rather than on the strength of their own.

Under all the evidence in this record, it appears that the plaintiffs were in possession of the disputed tract under claim of ownership and color of title and thus had a superior title as against the Robinsons. We must conclude, therefore, that the trial court was not erroneous in quieting title to the land claimed by the Moisés.

We have read the entire transcript; we have carefully examined each of the exhibits and we have considered the authorities relied upon and the contentions of the parties. Having done so, we are convinced that the judgment of the trial court was not erroneous.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Including “Iowa Lee Roberts” (a/k/a Irwin Roberts) and Harry E. Roche.

      . This dispute involves the question, as between the Moisés and the Robinsons, who has superior title to the disputed land. The Robinsons were the only parties to respond to the petition filed by the Moisés. The tract which the Moisés claim is described in the deed they received from their immediate predecessor, John A. and Helen Halahan, a/k/a John A. and Helen Holahan, dated July 27, 1965, as follows:

      “Part of Lot Two (2) of the Southwest quarter of Section 18, Township 40 North, Range 3 East, described as follows: Beginning at a point on the North line of said Lot Two (2), which is located 825 feet West of the Northeast comer thereof, thence South and parallel with the East line of said Lot Two (2) to the North line of a 30 foot public roadway; thence West-wardly along the North line of said road, to a point 990 feet West of the East line of said lot; thence North to the North line of said Lot Two (2), and thence East with said North line 165 feet to the place of beginning, containing 5 acres more or less.”
      The deed on which the Robinsons rely — a collector’s deed dated February 28, 1962 (erroneously referred to in appellants’ brief as October 31, 1961) — describes the property to which they claim title as “Pt. Lot 2 SW ⅝, Section 18, Township 40, Range 3.” No acreage is shown on this collector’s deed.

      .Both parties have tried and briefed this case on the assumption that Iowa Lee Roberts is the same person as Irwin or Irvin Roberts, the delinquent taxpayer.

      . This was the same description contained in the collector’s deed to Mastis but different from the collector’s deed to the Robin-sons; it did not indicate the acreage nor the school and road districts.

      . Mr. Halahan was Mr. Mastis’ wife’s uncle. He “swapped” the five acres that Mastis received from the collector for “some other ground down there in Southern Missouri.”

      . The 1972 and 1973 tax receipts showed the legal description as “Pt Lot 2 SW QTR R2 55 5 AC.”

      . Including the collector’s deed to Mastis from whom the Halahans acquired title, who in turn conveyed the property to the plaintiffs — the Moisés.

      . The tax receipts show the following: 1959 —taxes paid by Paul J. Robinson. Owner— R. J. Liebe [the collector’s deed showed that Roche was the delinquent owner, not Liebe]. Description of property shows “Pt Lot 2, SW ⅛, Sch. Dist. R-2; Rd. Dist. 55, Sec. 18, Twp. 40, Rng. 3 and 55 [not 5] A.”
      1960 — same as 1959, except for amount of taxes; 1961 — same; 1962 — same; 1963— same, except Liebe’s name does not appear; 1964 — same; 1965 — same; 1966 — same; 1967 — same; 1968 — same; 1969 — same, except that now the acreage is shown as 5, not 55; 1970 — same; 1971 — same; 1972 — Legal description shown as “Pt Lot 2 SW Qtr. R-2, 55, 5 Acres.” This is exactly the same legal description as shown on the tax receipt of Moise, the plaintiff.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special’Judge.

license: Public Domain

text:
    Maud FRANKLIN, Respondent, v. Paul H. HOUSE and Marie House, his wife, Appellants.
    No. 35755.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 3, 1976.
    Raymond H. Dickhaner, Dearing, Riche-son, Roberts & Wegmann, Hillsboro, for appellants.
    Charles W. Medley, Farmington, for respondent.
   ALDEN A. STOCKARD, Special’Judge.

Defendants have appealed from a judgment quieting title as between the parties to certain land in St. Francois County.

Plaintiff alleged that title to “The East Half of South Half of Northeast Quarter of Section 13, Township 38 North, Range 4 East, containing 17.50 acres, more or less,” was vested in her “by limitations under the provisions of RSMo 1969, 516.101 [§ 516.-010?] in that plaintiff and those under whom she claims have occupied said land openly and under color of title for more than ten years,” but that defendants “appear to have a claim or title or record adverse to a portion of the land,” said portion being the “North five acres of the Southeast one-quarter of the Northeast one-quarter of Section 13, Township 38 North, Range 4 East.” Defendants’ answer was a general denial, except that they admitted they have “record title [to] and own the North 5 acres” as described in the petition.

James Franklin, son of plaintiff, testified that his father [not living at time of trial] and mother purchased the land described in the petition in 1963, but he did not say from whom. He further stated that-the northern boundary line of the tract was “the east-west section line of Section 13” at which place there was a fence that had been there for 12 to 15 years and which ran through some oak trees. He also stated that all of his mother’s land was fenced, and that she “always claimed that portion that is fenced.”

Without objection Exhibit A was admitted into evidence. It consists of five “Certificates of Title” issued by the St. Francois County Abstract Company and signed by its President. In the earliest, dated June 16, 1961, it is stated that “We have examined the records of the offices of the Recorder of Deeds and Courts of Record for the County of St. Francois, in the State of Missouri and HEREBY CERTIFY that the record title * * * [to] the East Half of South Half of the Northeast Quarter of Section 13, Township 38 North Range 6 East, containing 17.50 acres, more or less * * * is well vested in fee simple in Burl A. Koester and Jesse V. Koester, his wife.” The other four “Certificates of Title” contain the same description and apparently purport to show changes in ownership, the final one reciting that on March 1, 1963, title in fee simple was vested in Walter W. Franklin and Maud M. Franklin his wife.

Defendants introduced in evidence a copy of a general warranty deed, dated July 3, 1971, from Vitella C. Smith to them conveying certain land, a part of which was described as the “North 5 acres of the Southeast ¼ of the Northeast ¼ of said Section 13,” Township 30 North, Range 4 East.

The court found “that plaintiff and those under whom she claims title have occupied said land openly and under color of title for more than ten years,” and decreed that “plaintiff is vested with fee simple title” to the property.

In view of the description of the land contained in the judgment, and the fact that defendant’s claim to land located in the Southeast Quarter of the Northeast Quarter of said Section 13 is limited to the North five acres thereof, there are only two and one-half acres to which both parties make a claim.

We need not determine whether the certificates of title, clearly hearsay, were competent over objection to prove anything. They were, in effect, admitted into evidence by agreement. At most, they tend to establish a record title in plaintiff extending back as far as 1961. But, plaintiff does not rely on record title to establish her right to possession as against defendants. Her alleged claim is that of adverse possession, and the trial court based its judgment on adverse possession.

In order to establish title by adverse possession, plaintiff had the burden of proving that she, and those under whom she claims, had possession of the land so claimed for the statutory period, and “that such possession was actual, hostile, under claim of right, open and notorious, exclusive and continuous for the whole prescribed period of time.” Beldner v. General Electric Company, 451 S.W.2d 65 (Mo.1970). See also, Butler v. Trinkle, 490 S.W.2d 23 (Mo.1973). In this court tried ease, in determining whether plaintiff met her burden of proof we review the case upon both the law and the evidence. Rule 73.01(d); Mueller v. Larison, 355 S.W.2d 5 (Mo.1962).

The most that can be said for plaintiff’s evidence is that it tended to show a record title in her and those under whom she claims back to 1961, that all of her land was fenced, and that she “always claimed that portion that is fenced.” The record is devoid of proof that she was in actual or constructive possession of any portion of the land claimed for any period of time. The statement of plaintiff’s son that his mother’s land was fenced, and that she “claimed” all that was fenced does not constitute the necessary proof of possession. In view of this, the judgment based on adverse possession cannot stand.

The transcript relates that after the notice of appeal was filed an additional hearing was held in which testimony was received from one of the trial attorneys for defendants, but who is not an attorney for appellants on this appeal. This testimony is not set forth verbatim. Instead there is set forth what appears to be a summary of his testimony to the effect that plaintiff and defendants agreed that a judgment to quiet title could be entered in favor of plaintiff and against defendants if plaintiff would dismiss her claim set forth in a separate count for damages for trespass, and that the legal description in the judgment varied from that in the petition by agreement. We need not determine what effect, if any, should be given to this addendum to the transcript.

The judgment from which this appeal is taken does not purport to be a consent judgment. We also note that at the time judgment was entered plaintiff’s counsel agreed to dismiss the claim for damages based on trespass without prejudice only “if there is no motion of new trial filed.” This does not indicate the entry of a consent judgment.

The issue of an agreement may be presented upon retrial if deemed appropriate.

The judgment is reversed and the cause remanded.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.

      . This description is the same as the Southeast Quarter of the Northeast Quarter of Section 13. There was no amendment to the petition, but after the court announced that it was going to enter judgment for plaintiff, by “agreement” the judgment described the land as “All the East Half of the Southeast Quarter of the Northeast Quarter of Section 13 * * *.”

      . This obviously could not be correct. The northern boundary line of the land claimed by plaintiff as described in the petition or in the judgment would be the quarter-quarter section line of Section 13.

      .The description in each of the certificates of title is the same as that in the petition, but as previously noted, the description in the judgment does not include any part of the West Half of the Southeast Quarter of the Northeast Quarter of said Section 13.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. John Everett POOR, Appellant.
    No. 36261.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 3, 1976.

      Theodore S. Schechter, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

John Everett Poor, charged under the Second Offender Act, § 556.280 RSMo 1969, was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced by the Court to the custody of the Department of Corrections for a term of fifteen years. He has appealed from the ensuing judgment. Although we find it necessary to reverse the judgment, we shall rule certain issues which likely will recur in the event of a new trial.

Appellant first contends that the evidence was insufficient to submit the case to the jury.

About 8:30 o’clock of the evening of October 25, 1972, a person identified as Douglas Smith held up the National Food Supermarket at 7800 Morganford in the City of St. Louis, and by the use of a revolver took $650.00 from Michael O’Brien, the assistant manager. Mr. O’Brien described the robber as being in his “early twenties,” wearing an army type fatigue jacket, and having dark brown hair and a moustache. Smith told Mr. O’Brien to remain in the store, and he then left the building and went toward the parking lot. Mr. O’Brien saw no other person acting with or aiding him.

About the same time Gerald Spitznagel, a former policeman but who then was security manager for the United Parcel Service, drove into the parking lot of the supermarket. He observed a person come out of the store and walk toward the parking lot. He was in his “middle twenties,” of medium build, wearing an army fatigue jacket, had “sort of long hair,” and he had “something like a moustache.” Because of the way he held his hand, Mr. Spitznagel continued to observe him as he walked to and entered the passenger side of a brown Cadillac. He spoke “momentarily” or for “a second” to the driver, and the Cadillac was then driven from the lot. The driver was wearing a dark coat or jacket, had dark hair, and had “some kind of discrepancies on his face.” Mr. Spitznagel wrote down the license number of the Cadillac and gave it to the police.

Mr. Spitznagel was not able to make a positive identification of Smith at a lineup as the person he saw leave the store and enter the Cadillac because, as he said, at the lineup he no longer had the moustache and the long hair, but he stated that one of the persons in the lineup, who was in fact Smith, looked similar to the person he saw leave the store and enter the Cadillac. At the trial he identified a photograph of Smith as being the person he saw enter the Cadillac, and Mr. O’Brien identified the same photograph as being the person who was the robber. At a separate lineup Mr. Spitznagel immediately recognized and identified appellant as the person who was waiting in the Cadillac and who drove it away after Smith got into it.

The morning following the robbery, Sergeant Menniges of the St. Louis Police Department determined that the license number written down by Mr. Spitznagel had been issued to Douglas Smith, Mehl-ville, St. Louis County, Missouri. He and several other officers went to that address but the Cadillac was not there. It was seen shortly thereafter being driven into the apartment complex by appellant with another person in the passenger side.

When the police questioned appellant he admitted that he had a “half interest” in the Cadillac automobile, and he also admitted that he had driven the Cadillac the previous night. He stated, however, that he had been at his wife’s home from 6:00 to 10:30 o’clock in the evening. Officer Baldwin called appellant’s wife at work, and she stated that she had worked the previous evening until 11:15 o’clock and did not see appellant until after that time. After appellant was identified in the lineup by Mr. Spitznagel, he changed his story and told the police that he actually had been at his mother’s house until 10:30 o’clock, and it was thereafter that he had gone to his wife’s home.

Appellant did not testify, but his wife testified that on the evening of October 25, 1972, appellant called her and suggested that they attempt to resolve their marital differences, and that she met him at her home at 6:40 o’clock. She saw appellant arrive at her apartment in a brown Cadillac. They stayed together until 10:30 o’clock, and when they left the Cadillac had been moved and was parked in a different place.

In determining the issue of whether a submissible case was made, we view the evidence most favorable to the State, State v. Wilson, 436 S.W.2d 633 (Mo.1969), and take into consideration the favorable inferences reasonably to be drawn therefrom. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). Evidence to the contrary is not considered. State v. Morris, 518 S.W.2d 79 (Mo.App.1974). We are not to weigh the evidence, State v. Bizzle, 500 S.W.2d 259 (Mo.App.1973), or substitute our judgment for that of the jury. State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). Instead, we are to determine only whether as a matter of law a jury could reach a verdict of guilty if the members believed the evidence and inferences favorable to the State. State v. Lee, 404 S.W.2d 740 (Mo.1966).

Under the facts of this case we necessarily are to be governed by certain other basic general principles. All persons who aid or encourage the commission of a criminal offense may be found guilty as a principal. State v. Gamache, supra at p. 39. While evidence only to the effect that an accused had an opportunity to aid and encourage another in the commission of an offense, which merely raises a suspicion that he did so, is insufficient to sustain a conviction, any evidence showing that he knowingly and intentionally aided or encouraged another is sufficient to sustain a conviction, and such proof may be by circumstantial evidence. State v. Rossini, 418 S.W.2d 1 (Mo.1967).

Tested by these legal principles, we are convinced that a submissible case was made and that the trial court did not err in overruling appellant’s motion for judgment of acquittal. The Cadillac was registered in the name of Douglas Smith but appellant admitted that he had an interest in it, and by his admission and other evidence it was shown that on occasions he operated the automobile. Smith was identified by Mr. O’Brien as the robber. Mr. Spitznagel identified a photograph of Smith as being a photograph of the person he saw leave the store and enter the Cadillac. These facts and the time sequence of Smith leaving the store and Mr. Spitznagel observing a person closely fitting his description, without evidence of anyone else leaving the store at the time, clearly justified a finding by the jury that Smith was the person who robbed the store and went to the Cadillac automobile in which appellant was waiting. The act of appellant waiting for Smith and driving him away from the store area constituted an affirmative participation on his part. The only question is whether that participation was with knowledge of unlawful conduct on the part of Smith. The issue of intent or knowledge, in the absence of direct testimony of the person involved, is usually not subject to direct proof but must be inferred from the facts and circumstances. State v. Chevlin, 284 S.W.2d 563 (Mo.1955); State v. Holmes, 364 S.W.2d 537 (Mo.1963). Here, after committing the robbery Smith went to the waiting Cadillac automobile, but apparently with nothing he had purchased in the store. Appellant told conflicting stories as to where he had been at the time of the robbery; changing to the second story only after his first was disproved. All of the circumstances could be considered by the jury in determining the purpose of appellant’s presence in the Cadillac automobile. The circumstances need not of themselves be conclusive, and they need not demonstrate an absolute impossibility of innocence. State v. Maxie, 513 S.W.2d 338, 343 (Mo.1974). But when they point so clearly and satisfactorily to defendant’s guilt so as to exclude every reasonable hypothesis of innocence, as they do in this case, they are sufficient to authorize a finding of guilt by a jury. State v. Aguilar, 429 S.W.2d 754 (Mo.1968). This result also disposes of Point IX wherein appellant contends there was insufficient evidence to support the submission of Instruction No. 5 in the form of MAI — CR 2.10.

Appellant’s second point is that the trial court erred in admitting into evidence certain items taken by the police from the Cadillac automobile.

Officers Ackins and Menniges had a description and the license number of the automobile reported to have been used in the robbery, and they knew that the license had been issued to Smith whose address was listed as Mehlville, Missouri. They also knew that two persons had driven away from the scene of the robbery, and the next morning when they went to the address of Smith they saw the Cadillac, and again there were two persons in the automobile. In the investigation of the automobile reported to have been used in the robbery, it was important to determine, if possible, the identity of the person who was not Douglas Smith, the registered owner. Some of the officers went to Smith’s apartment, and Officer Ackins went to the automobile. While outside the automobile he observed in the automobile, but in plain sight to him, several envelopes and a magazine. He opened the unlocked door and saw that each had the name of “Poor” as the addressee. This may have constituted a technical trespass, but if so it would not affect the legality of the subsequent conduct of the officer. United States v. Young, 322 F.2d 443, 445 (4th Cir.1963). Either at the time or a short time later the police took possession of these envelopes and the magazine, and at the trial they were introduced into evidence over appellant’s objection that they had been obtained by the police as the result of an unlawful search and seizure.

The discovery of the envelopes and the magazine was not made in connection with or as an incident to an arrest. The discovery was made in the course of a proper investigation of a reported robbery, and was not made as a result of a “search” but occurred under the “plain view” doctrine. No search was necessary to discover them. There was no prying into hidden places for intentionally secreted objects. The evidentiary value to the State was the name of the addressee on the outside of the envelopes and the magazine. There can be no unreasonable search absent a search in the first instance. State v. Rankin, 477 S.W.2d 72, 75 (Mo.1972). “The provision of the Constitution * * * [prohibiting unreasonable searches and seizures] is not violated, where the evidence of the unlawful act is discovered by the officer without a search,” State v. Watson, 329 Mo. 158, 44 S.W.2d 132, 134 (1931), and “Observation of that which is open to view is not a search. A search (such as is prohibited by the constitutional provisions involved) is not made by merely looking at that which can be seen.” State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692 (1951). See also State v. Camper, 353 S.W.2d 676 (Mo.1962), and the cases there cited.

Appellant relies primarily on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We have some question concerning the effect of that case on the law relating to search and seizures because only four members of the court, less than a majority, concurred in what at least appears to be the principal opinion. However, we consider that case not to be controlling. In the Coolidge case the police knew that a certain automobile probably had been used in the commission of a crime, and it was seized and searched. Sweepings from the automobile, obtained as a result of that search, were admitted in evidence. It was argued that the automobile was an instrumentality of the crime and as such could be seized because it, the automobile, was in plain view and it then could be searched. In rejecting this argument Mr. Justice Stewart, not too helpfully, discusses the plain view doctrine. But in this case the presence of the envelopes and the magazine did not result from a seizure of the automobile and a subsequent search of it, which was the factual situation of the Coolidge case. Instead, the officer, standing in a place where he was entitled to be, observed the items in plain view. Therefore there was no search. We find no error in admitting into evidence the envelopes and the magazine.

Assuming however, that for some reason it could logically be argued that the plain view doctrine is not applicable, we would find no basis for reversal of the judgment. The only purpose of the evidence was to connect appellant with the Cadillac automobile. But, Sergeant Menniges testified that appellant admitted to him that he had part ownership of the automobile, Mr. Spitzna-gel identified the automobile as the one he saw appellant operating, Sergeant Mennig-es testified that he saw appellant operating the automobile when the officers first went to the apartment complex, and appellant’s wife testified that appellant drove the automobile to her apartment and that she had seen him drive it on several occasions. The only issue to which the envelopes and the magazine were material was clearly established by other evidence. Therefore, the evidence at most was only cumulative, and could not in any event be grounds for the reversal of the judgment.

Appellant next asserts that the court erred in overruling his motion “to suppress ‘mug shots’ ” and in permitting the jury to view his “mug shot” because this “raised in the minds of the jurors the inference that [he] had a prior criminal record or was a police character.”

After a hearing on appellant’s pre-trial motion to suppress what he called “mug shots,” the court ruled that it would permit reference to them as photographs or pictures but would not permit them to be shown to the jury because each had a police number or identification on it. The term “mug shot” was not used within the hearing of the jury.

During the trial, the accuracy of the identification of appellant by Mr. Spitzna-gel was vigorously contested, and appellant cross-examined him at length as to whether he had seen pox marks, or what he described as “descrepancies,” on appellant’s face when he observed appellant on the parking lot. The officer who had conducted the lineup in which appellant was identified by Mr. Spitznagel testified that no one in the lineup had pox marks. On cross-examination, the State’s attorney offered in evidence a photograph of appellant taken one day after the lineup “to show the facial complexion of the defendant.” Apparently the photograph had on it the “department number 191993,” but this is not clear and the exhibit has not been filed with this court. After appellant’s objection to the admission in evidence of the photograph was overruled, the State’s attorney requested that “the exhibit be passed to the jury.” No objection whatever was made to that request, and there was no request that if the exhibit was to be shown to the jury that the “department number” be deleted or covered.

The jury was told that the robbery occurred on October 25, that the lineup was held on October 26, and that the photograph was taken on October 27. Therefore, the existence of this particular photograph with a “department number” on it could not give rise to an inference that it came into existence because of a previous criminal record. Any ordinary intelligent juror would have known that this particular photograph had been taken in connection with the investigation of the charge for which appellant was then being tried.

The photograph was material to the highly contested issue of the appearance of appellant and the correctness of the identification by Mr. Spitznagel, and it was properly admitted into evidence. State v. Childers, 313 S.W.2d 728 (Mo.1958); State v. Carson, 501 S.W.2d 503 (Mo.App.1973). The only objectionable portion, if there was any, was the presence on the photograph of the “department number.” But, appellant made no request that the number be removed or covered. We find no prejudicial error.

We now reach the only meritorious contention of appellant; his challenge to Instruction No. 6, the verdict directing instruction.

The evidence clearly established that appellant’s participation in the charged offense was that of an operator of the “get-away” automobile, or that he aided and encouraged Smith in the commission of the robbery. Appellant was charged by indictment as a principal, which was permissible under § 556.170 RSMo 1969, State v. Spica, 389 S.W.2d 35, 40 (Mo.1965); State v. Lemon, 504 S.W.2d 676 (Mo.App.1973), and appellant makes no challenge to the indictment. The court instructed the jury in the form of MAI-CR 2.10 pertaining to the general responsibility of one for the conduct of others. However, Instruction No. 6 is in the form of MAI-CR 7.62, and in its material parts is as follows:

If you find and believe from the evidence beyond a reasonable doubt;
First, that on October 25, 1972, in the City of St. Louis, State of Missouri, National Food Stores, Incorporated, a corporation, in the care and custody of Michael O’Brien owned six hundred and fifty dollars lawful money of the United States, and
Second, that at that time and place the defendant, by means of a deadly and dangerous weapon, took the property from Michael O’Brien against his will by causing him to fear immediate injury to his person, and
Third, that the defendant took the property with the intent to permanently deprive National Food Stores * * * in the care and custody of Michael O’Brien of the property and to convert it or any part of it to his use, then you will find the defendant guilty of robbery in the first degree by means of a deadly and dangerous weapon.

Rule 20.02(c) provides that “Whenever there is an MAI-CR instruction * * * applicable under the law to the facts, the MAI-CR instruction * * * shall be given or used to the exclusion of any other on the same subject.” In this case, it was the State’s theory, and the proof was that appellant’s total participation in the robbery was that of an aider in that he perhaps served as a lookout and did serve as the operator of the “get-away” automobile. MAI-CR 2.14 entitled “Principals: Aiding or Encouraging, Whether Present or Not,” is worded to cover precisely the factual situation of this case. Therefore, there was an “MAI-CR instruction * * * applicable under the law to the facts,” and it was not given. Pursuant to Rule 20.02(e) such failure was error, the prejudicial effect of which is to be judicially determined.

If used, MAI-CR 2.14 would have submitted to the jury the issue of whether the defendant “knowingly and intentionally aided or encouraged” another in commission of the charged offense. MAI-CR 7.62 does not contain such language. But where, as here, the accused’s participation was limited to that of an aider and encourager, the fact that he intentionally did so was a finding essential to sustain a verdict of guilty. State v. Grebe, 461 S.W.2d 265 (Mo. Banc 1970) makes this abundantly clear. In that case the accused was convicted of manslaughter on the basis that she aided and encouraged her son who made the physical assault which caused the death. The Missouri Supreme Court held: “The State tried appellant as an aider and abettor in this case. [The verdict directing] instruction * * * did not require the jury to find that appellant intentionally aided and abetted [the son] in the commission of the act of stabbing [the victim]. We consider appellant’s intent in this regard an essential element of the State’s case. We hold the instruction [which did not submit the issue of intentionally aiding and abetting] preju-dicially erroneous.” See also State v. Lemon, supra where a submission similar to that in this case was held to be “doubly erroneous” because it did not submit the issue of intent, citing the Grebe case, and because no instructional guide was given whereby the jury “could properly apply the abstract principles as contained in [what in this case was Instruction No. 5 in the form of MAI-CR 2.10] to the facts.”

The failure of the court to instruct in the form of MAI-CR 2.14 was error, and by reason of the rule of the Grebe case we determine that error to have been prejudicial.

Other contentions of appellant need not be ruled on this appeal.

The judgment is reversed and the cause remanded.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: RENDLEN, Judge.

text:
    Gilbert MADISON, Appellant, v. STATE of Missouri, Respondent.
    No. 35471.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 3, 1976.

      Christopher T. Hexter, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Scott A. Raisher, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

This appeal is from denial of appellant’s Rule 27.26 motion seeking relief from his conviction of first degree robbery with a dangerous and deadly weapon. Appellant contends: (1) The court erred in not finding his conviction was violative of protection afforded by the United States and Missouri Constitutions against double jeopardy; and (2) error in failing to provide a full record of his first trial. For reasons set forth herein, we affirm.

Madison’s first robbery trial commenced March 19, 1968, terminating in mistrial March 22. Upon re-trial in April of that year, the jury found appellant guilty assessing his punishment at 99 years. In the appeal, affirming conviction, State v. Madison, 459 S.W.2d 291 (Mo.1970), no issue of double jeopardy appears to have been suggested, raised or ruled.

By his post-conviction motion filed May, 1972, appellant contends the aborted trial in March, 1968, rendered the second constitutionally impermissible under the provisions of the Fifth and Fourteenth Amendments of the U.S.Const. and Art. I, § 19 of the Mo.Const.

On the third day of the first trial, the prosecutor notified the court witness Eliza Ann Fox could not be found and advised the State was unable to proceed at that time. By agreement of counsel, a recess was declared until the following morning to permit finding the witness but the next day the prosecution announced the witness was still unavailable, stating: “We have proceeded as far as we can go at this time, short of entering whatever exhibits are not entered at this time.” On this indication that the State had concluded its case in chief, the court turned to defense counsel and asked him to proceed. Defense counsel instead requested a conference in chambers and in that conference complained the State had not “tied-in” certain conditionally admitted testimony which now could not be rendered competent since the evidentiary gap would not be filled by the missing witness. The court inquired what he was asking of the court and after more discussion defense counsel requested “a directed verdict of acquittal.” The court denied the oral motion noting that notwithstanding the testimonial gap there was sufficient evidence for a submissible case. Defendant had then the choice of requesting curative instructions, proceeding without the benefit of such instruction or requesting a mistrial. He chose instead to continue his argument that “error” had occurred in the trial. The court finally inquired what he was requesting: THE COURT: “What are you asking?” Mr. Harris replied: “Whatever the court see[s] fit to do.” Harris resumed arguing there was “error” in the trial.

It is clear the defense sought to force the court to declare a mistrial and establish a possible claim of double jeopardy. During the ensuing colloquy in which the trial court displayed admirable restraint, the prosecution noted that defense “counsel yesterday moved for a mistrial; the Court said that it would be denied at this time . ' . May I respectfully call the Court’s attention to counsel’s motion for a mistrial and ask the Court then to finally rule on that motion.” Defense counsel denied such motion was before the court, claiming it had been passed upon and denied when made. Asked by the court whether he was withdrawing the mistrial motion, defense counsel replied: “I am not withdrawing anything.” The court then stated that defendant’s motion “previously made for a mistrial will be granted and a mistrial will be declared.” Defense counsel objected that there were no outstanding motions for mistrial and declared that he was withdrawing his pending motions:

“THE COURT: Let me ask you, are you withdrawing your motions previously made with reference to a mistrial?
MR. HARRIS: I am not withdrawing anything Judge; I am not withdrawing anything.
THE COURT: You still have those before the Court?
MR. HARRIS: No, no. That motion was before the court, passed on and denied at that time.”

Following further colloquy, the court asked defense counsel:

“THE COURT: I am asking Mr. Harris, so that the record might be abundantly clear, are you withdrawing your previous motions for a mistrial?
MR. HARRIS: Judge, whatever is on the record, is on the record. There has been additional evidence and additional testimony on the record.
THE COURT: You are not withdrawing those motions?
MR. HARRIS: I am standing on the record.
THE COURT: The motions previously made for a mistrial will be granted and a mistrial will be declared.
MR. HARRIS: I didn’t ask for a mistrial.
THE COURT: You did previously.”

This exchange was followed by more discussion including personal argument between the prosecutor and defendant concerning evidence of defendant’s guilt and other charges the State intended to file. Attempting to bring the matter to conclusion, the court announced again a mistrial would be declared and defense counsel for the first time countered with the statement that the defense was ready to proceed with trial. Immediately the prosecutor, apparently seeking to determine if this meant defendant’s motion for mistrial had been finally withdrawn, inquired of defense counsel:

“MR. FREDERICKS: (Prosecutor) May I say something on the record right now? Are you indicating to all there is no error in this ■ record which would give you a motion for a mistrial?
MR. HARRIS: (Defense counsel) I am not going to answer that. I’ll stand on the record.
MR. FREDERICKS: Well then, if he would say that[,] I will say he is asking for his cake and wants to eat it too, if he will say there is no error in the record.”

After another fruitless round of argument, the court ordered additional recess indicating he would take at least a half hour to research the question.

When proceedings resumed and all had been afforded abundant opportunity to reflect, consult with clients and conduct such research as they might wish, the court, still out of the jury’s presence, asked defense counsel if he had any announcement, to which defense counsel replied: “May I move the court for a mistrial on the grounds heretofore stated and on the grounds I had voiced in Chambers previously.”

“THE COURT: And in the other respects that you had previously mentioned?
MR. HARRIS: At all times previous to this, your Honor that my motion for a mistrial was made and I am renewing that motion at this time. (Emphasis added.)
THE COURT: You are moving now for a mistrial?
MR. HARRIS: Right.”

Thereupon the court made this direct inquiry of defendant concerning the request for mistrial:

“THE COURT: You are following Mr. Harris’ advice, are you?
THE DEFENDANT: That’s right.
THE COURT: He has discussed this matter with you on a number of occasions, has he, back in the Fall, and you are satisfied with his advice and satisfied with his recommendations?
Defendant nods his head in the affirmative.”

Being thus satisfied that defendant and defense counsel understandingly chose mistrial, the court sustained the motion and discharged the jury.

As noted above, one month later in the second trial, appellant was convicted and that conviction affirmed on appeal.

In examining appellant’s contention that the second trial was violative of his constitutionally-protected right against being put twice in jeopardy for the same crime, the determinative factor is whether appellant’s motions for mistrial, made both before and after the meeting in chambers, bars the double-jeopardy claim. Ordinarily a claim of double jeopardy in violation of the Fifth Amendment does not arise from the later trial of a defendant following a mistrial declared by the court upon the defendant’s own motion. Roberts v. U. S., 477 F.2d 544, 545 (8th Cir.1973). From the record we conclude that appellant, on the considered judgment of counsel, waived the claim of double jeopardy by voluntarily requesting mistrial. Appellant contends making that motion was coerced by the trial court and threats of the prosecutor, citing as authority, U. S. v. Walden, 448 F.2d 925 (4th Cir.1971). We do not agree and the record does not support this contention.

The critical point leading to the jury’s discharge was the State’s announcement on April 21 that witness Fox was missing. As observed above, there is no suggestion of bad faith or want of diligence on part of the State in procuring her presence or conditionally presenting evidence to be “tied-in” by her testimony. It was the failure to fill this evidentiary gap which constituted the then claimed error and for this “error” the defense requested but was properly refused a directed verdict of acquittal since other evidence justified submission of the case. As previously noted, the alternatives facing defendant were: (1) Proceed with the trial he earnestly argued was blemished; (2) request curative instructions and proceed; or (3) request mistrial. The defense instead repeated its request for acquittal of defendant. The ensuing conferences in chambers and in court out of the jury’s presence, included a melange of procedural thrusts and counterthrusts by counsel seeking advantage for their respective positions. These included: Argument by the prosecutor that the defense had previously moved for mistrial; the parties dispute whether that motion had been conditionally or finally overruled; defendant seeking to obtain an order of “acquittal”; the prosecution suggesting the prior defense motion for mistrial should be ruled; withdrawal of that motion by the defense; the court’s attempt to bring the matter to a head by asking the defense what they were requesting and the defense rejoinder “whatever the court sees fit to do”; the court indicating that the prior motion for mistrial would be sustained followed by defendant’s “withdrawal” of any previous motion and the prosecutor’s statement he would try defendant on other cases (assault charges); and finally, defendant opting to proceed without requesting curative action for the error he adamantly insisted pervaded the trial. A further recess was declared to provide the court an opportunity to research the law and the parties time to examine their positions. If the defense persisted in withdrawal of its mistrial motion and asked no curative action, it faced the possibility of waiving its claim for prejudicial trial error. Apparently recognizing the State had made a submissible case or in any event seeking to avoid submission of the case on evidence containing the alleged “error,” defendant on resumption of trial moved for mistrial “on the grounds heretofore stated and on the grounds that I had voiced in Chambers previously . . .” and stating further that this motion was a renewal of his prior motion to like effect. It is significant that defense counsel based the motion on the grounds he had previously voiced, referring to his contention that defendant’s case had been damaged and prejudiced. From these circumstances it can be seen the final mistrial motion was not the result of a “Hobson’s choice” as described in U. S. v. Dinitz, 492 F.2d 53 (5th Cir. 1974) and was more than the mere “ceremonial motion” of U. S. v. Walden, supra at 931. Indicating the motion would be granted, the court determined from defendant personally that he was acting on and was satisfied with the advice of counsel. Appellant’s present contention he did not understand the effect of the mistrial motion, is neither apt nor meritorious.

Though appellant now argues the prosecution’s misconduct coerced appellant’s move for mistrial, the record belies this charge and the comment of defendant’s counsel at the close of those proceedings reveals defense counsel’s contrary view at that time. It is further important that since a submissible case had been made, discharge of the jury was in the interest of the defendant, cf. Gori v. U. S., 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), and appellant was the beneficiary of that ruling. The situation leading to mistrial clearly was not compelled by bad faith, prosecu-torial conduct aimed at triggering a mistrial in order to get another day in court and from the apparent seriousness of the trial error, the trial court might well have sua sponte aborted the trial under the traditional standard of “manifest necessity” first enunciated in U. S. v. Perez, supra (1824). In measuring appellant’s contention of error we do so against the policy statement of our Supreme Court in State v. Aguilar, supra at 354[4]: “The prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for defendant’s benefit” but this policy is tempered by the holding in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), that “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Stated somewhat differently in U. S. v. Dinitz, 492 F.2d 53, 57 (5th Cir. 1974), the court pointed out in discussing the “manifest necessity” rule of “Perez” in double-jeopardy cases, that “This rule represents a balancing on the one hand of a criminal defendant’s valued right to complete his trial before a particular jury . . . (cases cited) and on the other, society’s interest in fair trials and preventing ‘the guilty from going free.’ ” In this context we find no error and rule against appellant’s first contention.

Finally, appellant argues that the court abused its discretion in overruling appellant’s request for a full trial transcript of the first trial (March, 1968) and thus “denied Appellant his right to a fair hearing.” We find facts determinative of the double-jeopardy issue are set forth in the transcript as provided; and while uncertainties appear as to defense counsel’s earlier mistrial motions and the court’s disposition of those motions, these matters are not controlling and appellant offers no explana-' tion or viable argument how a full transcript would disclose facts leading to a different result here. Failing that, appellant is not entitled to embark upon “a fishing expedition to determine if any kind of error can be found.” State v. Keeble, 427 S.W.2d 404, 408 (Mo.1968). This point is also ruled against appellant and the judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . A concise discussion of underlying constitutional and common-law principles regarding double jeopardy is contained in State v. Aguilar, 478 S.W.2d 351, 353-354[1-3] (Mo.1972): “The Fifth Amendment to the Constitution of the United States provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb,’ and in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, it was held that the guarantee of the Fifth Amendment against double jeopardy is enforceable against the states through the Fourteenth Amendment. Although Missouri could by Constitution or statute, be more restrictive than the requirement of the Fifth Amendment, as construed by the federal courts, the Fifth Amendment requirements are the minimum permissible standards. The provision of Art. I, § 19, Constitution of Missouri, V.A.M.S., that ‘nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury,’ does not strictly apply [in cases not resulting in acquittal by a jury] but ‘the common-law rule that no person shall for the same offense be twice put in jeopardy is in force in this state * * *, and precludes a second conviction and punishment for the same offense.’ State v. Toombs, 326 Mo. 981, 986, 34 S.W.2d 61, 63. We find no readily discernible difference between the Fifth Amendment guarantee against double jeopardy and the common-law guarantee as applied in this State. State v. Richardson, Mo., 460 S.W.2d 537.”

      . Nothing in the record suggests the State had other than in good faith secured the presence of the witness, and through no neglect on its part, she left and could not be found. Ms. Fox had been in court the previous day and also earlier on March 21.

      . “MR. HARRIS: Your Honor, just a closing remark for the record . . . may the record show that notwithstanding whatever, I hesitate to use the word bitterness, but rift that may have existed between Mr. Freder-icks and myself yesterday, I want to commend him and state to the Court that he is probably one of the most sincere, one of the most honorable prosecutors I have had the privilege to try a case with.”

      . U. S. v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).


author: GUNN, Judge.

text:
    INTERCO INCORPORATED, a corporation, Plaintiff-Appellant, v. RANDUSTRIAL CORPORATION, a corporation, Defendant-Respondent.
    No. 36784.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 3, 1976.

      James K. Pendleton and Robert E. McWilliams, Jr., St. Louis, for plaintiff-appellant.
    Thomas E. Fitzgibbons, K. Steven Jones, St. Louis, for defendant-respondent.
   GUNN, Judge.

Plaintiff-appellant Interco, Inc. (Interco) filed suit against defendant-respondent Randustrial Corporation (Randustrial) alleging breach of warranty on a product sold by Randustrial to Interco. Jury verdict was for defendant Randustrial, and Interco has appealed on the basis that the trial court erred in failing to find that Interco was entitled to judgment as a matter of law. The core issue is whether Inter-co established as a matter of law that Ran-dustrial was guilty of a breach of an express warranty under § 400.2-313 of the Uniform Commercial Code and that Interco was thereby injured. We affirm the judgment.

Interco maintains facilities for its International Shoe Company division in St. Louis consisting of 21 buildings. In 1971, Building No. 3 required floor repairs on the first story. The floor was extremely rough, rendering it difficult to move merchandise between the storage area and loading dock. Interco’s Manager of Facilities Engineering read Randustrial’s building maintenance supply catalogue and from it ordered a product designated as Resilihard which was designed as a floor covering to smooth rough areas. However, after a discussion with Randustrial’s sales representative and upon the latter’s recommendation, another of Randustrial’s products, called Sylox, was selected because of its flexibility. Sylox was applied to the first floor of Building No. 3, and its use was satisfactory for Inter-co’s purposes.

The following year — 1972—a floor problem similar to that in Building No. 3 developed in Building No. 1. The second floor of Building No. 1 became rough creating difficulty in the movement of hand-truck traffic. Because of the favorable experience with Sylox and also by reason of Randustrial’s catalogue description for its use, Interco ordered and installed Sylox to the second floor of Building No. 1. The catalogue described the purpose of Sylox as “to patch or resurface old wood floors for hand-trucking or foot traffic.” The order was placed and the Sylox applied without the advice of or consultation with Randustrial’s representatives. The consequences were wholly undesirable, for shortly after its application, the Sylox began to deteriorate and became unserviceable; it was an impediment rather than an expedient in the movement of hand-trucking.

Randustrial’s representative made an investigation and sought to alleviate the problem. The Sylox was tested and found not to be defective, but it was also determined that it had been properly applied by Interco. The fault lay, as asserted by Ran-dustrial, in the movement of the second floor. It was noticed that there was simultaneous movement in the floor from both the top and the bottom, and according to Randustrial’s representative, neither Sylox nor any other material was suitable for the floor as it had “too much give.” A consulting engineer testified for Randustrial that he had examined and noted the movement in the floor of Building No. 1; that his professional opinion was that the probable cause of the Sylox failure was the floor movement. The difference between the success of Sylox in Building No. 3 and its failure in Building No. 1 was that there was a tighter bond between the surface and subsurface floors in Building No. 3 and, hence, less movement.

Interco maintains that it was entitled to judgment as a matter of law based on a breach of express warranty by Randustrial. Interco argues that the purchase of Sylox was based on the following Randustrial cat-alogue description of the material and asserts an express warranty thereby:

“Sylox is a hard yet malleable material which bonds firm to wood floors for smooth and easy hand-trucking. Sylox will absorb considerable flex without cracking and is not softened by spillage of oil, grease or solvents.” (Emphasis added.)

In response to Interco’s argument that there was a breach of express warranty as a matter of law, Randustrial postulates that the following three fact questions were properly presented for jury determination, with the jury reasonably finding in favor of Randustrial on all three questions: 1) whether a warranty existed; 2) if a warranty did exist, whether Interco relied on such warranty; 3) if the warranty did exist and there was reliance thereon, whether the breakdown of Sylox was a direct result of a breach of warranty.

Both parties agree that § 400.2-313 of the Uniform Commercial Code is applicable to the facts of this case. Section 400.2-313, relating to express warranties provides:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the -goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

There is a paucity of Missouri case law decided on the basis of § 400.2-313 which offers assistance for a denouement of the case under consideration. Thus, we look for guidance to decisions of other jurisdictions made under the same provision of the U.C.C. Komosa v. Monsanto Chemical Co., 317 S.W.2d 396 (Mo. banc 1958); Eyerman v. Mercantile Trust Co., N. A., 524 S.W.2d 210 (Mo.App.1975).

We have noted that Interco claims the existence of a warranty as to Sylox, and Randustrial argues the absence of a warranty. We disagree with Randustrial’s contentions in this regard. Although Randus-trial contends its reference to Sylox in its sales catalogue did not constitute an express warranty, if the words used in the catalogue constitute a description or an affirmation of fact or promise about Sylox and became a part of the basis of the bargain, an express warranty was created. Larutan Corp. v. Magnolia Homes Mfg. Co. of Neb., 190 Neb. 425, 209 N.W.2d 177 (1973). Randustrial also asserts that there could be no breach of warranty because Interco had failed to test the material before applying it to Building No. 1 and had failed to seek advice from Randustrial on its application. The uncontradicted evidence was that the cause of the breakup of the Sylox was the movement in the floor. There was nothing vague in Interco’s evidence as to the intended use of Sylox. The evidence was palpable that Interco wanted something to withstand flex without breaking. The catalogue stated that “Sylox will absorb considerable flex.” Thus, there was a description or affirmation of fact or “warranty” regarding Sylox giving rise to the purpose for which it was purchased by In-terco. This was not mere puffing of a product. Interco was entitled to take the catalogue description of Sylox at its face value and plain meaning. There was no need to consult Randustrial or seek its advice regarding the use of Sylox. Any suggestion that Interco was at fault for not having tested the product or sought consultation is fatuous, for the catalogue description made no such requirement. “All the buyers are required to establish is that the express warranties were made and that they were false, thereby establishing a breach of the contract.” Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 521 P.2d 281, 293 (1974). Interco had no obligation to establish a defect in Sylox as Randustrial suggests. Hawkins Construction Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973); Huebert v. Federal Pacific Electric Co., 208 Kan. 720, 494 P.2d 1210 (1972). We have previously noted that there has been no contention that the Sylox was misapplied.

Randustrial’s argument that In-terco failed to prove reliance on any warranty is also not felicitous. There is no mention of reliance in § 400.2-313. And the comments to that section of the U.C.C. reveal that the concept of reliance as required in pre-U.C.C. warranty cases was purposefully abandoned:

“In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.” Official Comment 3, § 400.2-313. [Emphasis added].

The unchallenged evidence was that Inter-co’s Manager of Facilities Engineering read the catalogue description which stated that Sylox would “absorb considerable flex”; that his testimony was that “the literature says that it [Sylox] absorbs considerable flex. Based on that I was assuming that it would do the job.” The U.C.C. requires no more than what took place here. The statement “absorbs considerable flex” became “part of the basis of the bargain.” The fact that Interco relied to some extent on its past experience with Sylox in Building No. 3 is not determinative of any issue, as no particular reliance on an express warranty is necessary. Young & Cooper, Inc. v. Vestring, supra; Hawkins Construction Co. v. Matthews Co., supra.

The fact that the language read by Interco was contained in a catalogue and was basically an advertisement does not preclude a finding that it is a warranty. A brochure, catalogue or advertisement may constitute an express warranty. See e. g. Hawkins Construction Co. v. Matthews Co., Inc., supra; Huebert v. Federal Pacific Electric Co., supra; Anthony v. General Motors Corp., 33 Cal.App.3d 699, 109 Cal.Rptr. 254 (1973); Rinkmasters v. Utica, 75 Misc.2d 941, 348 N.Y.S.2d 940 (1973); Ford Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Tex.Civ.App.1967). However, the catalogue advertisement or brochure must have at least been read. Pioneer Hi-Bred International, Inc. v. Talley, 493 S.W.2d 602 (Tex.Civ.App.1973), as the U.C.C. requires the proposed express warranty be part of the basis of the bargain. See Speed Fastners, Inc. v. Newsom, 382 F.2d 395 (10th Cir. 1967). Randustrial does not dispute the fact that Interco had read the catalogue.

Randustrial relies on the pre-U. C.C. case of Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603 (1964), arguing that the statement that Sylox “will absorb considerable flex” merely reflects the seller’s opinion of the goods and creates no warranty. In the Central Hardware Co. case, a ladder advertised as “mighty strong and durable” collapsed under use causing injury to the plaintiff. In discussing the use of factual information vis-á-vis mere “sales talk” in advertising, the court said at 186 S.W.2d 603, 606:

“The seller’s privilege to puff his wares, enhance their quality and recommend their value, even to the point of exaggeration, is unquestionable, so long as his salesmanship remains in the field of ‘dealer’s talk,’ commendation or mere expressions of opinion [cite omitted]. Particularly do the obligations of warranty not attach when the seller’s talk is confined to expressions of opinion and not affirmations of fact. . . . Also, depending on the circumstances, assertions in handbills and advertisements as to the quality or condition of chattels may not, as a matter of law, be construed as warranties, and certainly not if they do not become a part of the contract of sale [cites omitted]. But the seller’s protection lies in the fact that his is the choice of language and action. The tendency is to restrict the meaning and interpretation of the seller’s language, especially as to the untruthful puffing of his wares, and, hold ‘positive statements of quality affirmations of fact.’ ” [cites omitted; emphasis added].

We believe that the foregoing pre-U.C.C. law continues under § 400.2-313, which specifically excludes a seller’s mere opinion or commendation from being interpreted as an express warranty. Section 400.2-313(2). The Central Hardware Co. case does make clear, though, that the language chosen by the seller in his advertising must be interpreted in favor of the buyer in order to restrict “untruthful puffing of wares.” We believe that this is the same type of approach desired by the draftsmen of the U.C.C. In Official Comment 8, the draftsmen explain the difference between the “mere opinion” exclusion of § 400.2-313(2) and the requirement that the language be “part of the basis of the bargain”:

“Concerning affirmations of value or a seller’s opinion or commendation under subsection (2), the basic question remains the same: What statements of the seller have in the circumstances and in objective judgment become part of the basis of the bargain? As indicated above [i. e. in previous Comments], all of the statements of the seller do so unless good reason is shown to the contrary. The provisions of subsection (2) are included, however, since common experience discloses that some statements or predictions cannot fairly be viewed as entering into the bargain.” Official Comment 8, § 400.2-313. [emphasis added].

Recently, in Young & Cooper, Inc. v. Vestring, supra, the following distinction was made between statements of fact and statements of opinion:

“[Representations of fact capable of determination are warranties, but mere expressions of opinion, belief, judgment or estimate by a dealer in sales talk are not. Where opinions are coupled with representations of fact which relate to such matters and are susceptible of exact knowledge, they constitute more than a mere opinion and are properly regarded as representations of fact, and, to the extent they are representations of fact, they constitute warranties.” Op. cit. at 521 P.2d 281, 290.

An important factor is whether the seller assumes to assert a fact of which the buyer is ignorant or whether the seller merely expresses an opinion on which the buyer may be expected to have an opinion and be able to express his own judgment. Weiss v. Rockwell Manufacturing Co., 9 Ill.App.3d 906, 293 N.E.2d 375 (1973); General Supply and Equipment Co., Inc. v. Phillips, 490 S.W.2d 913 (Tex.Civ.App.1972); Carpenter v. Alberto Culver Co., 28 Mich.App. 399,184 N.W.2d 547 (1970).

Although Randustrial is pertinacious in its contention that the catalogue content regarding absorbability of considerable flex is merely a reflection of opinion, we must disagree. It is manifest that the words so used were meant to induce purchases through the assurance that considerable flex would be absorbed and were not mere opinion. The words were an affirmation of fact within the meaning of § 400.2— 313.

But having determined that an express warranty as to Sylox did exist, we reach the crux of this case—whether there was a breach of that warranty by Randus-trial as a matter of fact. Ordinarily—and this case is no exception—the question of whether there has been a breach of warranty is a factual matter to be determined by the trier of fact. Ertl Co. v. Lange Plastics Co., 158 N.W.2d 93 (Ia.1968); Judd Construction Co. v. Bob Post, Inc., 516 P.2d 449 (Colo.App.1973); Jansson v. Hook, 1 Ill.App.3d 318, 272 N.E.2d 385 (1971).

The keystone of this case and the basis for Randustrial’s triumph before the jury and affirmation by this court continues to be the phrase “absorb considerable .flex.” That phrase is too imprecise to be defined as a matter of law. It was for the jury to determine as a matter of fact whether Sylox conformed to the promise to absorb considerable flex. The jury could have reasonably found on the basis of the evidence presented to it that the flex or movement in the second floor of Building No. 1 was more than considerable and more than Sylox was designed to accommodate. The fact issue as to what amounted to considerable flex in this case was proper for the jury to determine. Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., 407 S.W.2d 622 (Mo.App.1966).

The jury verdict for Randustrial is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Statutory references are to RSMo. 1969.

      . Pre-U.C.C. Missouri law was similar in theory to § 400.2-313. A positive affirmation of fact by the seller made to induce a buyer to make a purchase constituted an express warranty. Charles F. Curry & Co. v. Hedrick, 378 S.W.2d 522 (Mo. 1964); Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603 (1945).

      . In its brief, Randustrial suggests that there was conflicting testimony as to the cause of the failure of Sylox. There was no conflict of testimony. Indeed, it was Randustrial which presented the only evidence as to Sylox’ failure — the floor movement.

      . See Acme Equipment Corp. v. Montgomery Cooperative Creamery Ass’n., 29 Wis.2d 355, 138 N.W.2d 729 (1966). There, the phrase “in good shape and good working order” was under the circumstances found to be an affirmation of fact as a matter of law and a sufficient standard for the trier of fact to determine whether a breach of warranty occurred; and see McCormack v. Hankscraft Co., 278 Minn. 322, 154 N.W.2d 488 (1967), where a vaporizer was said to be “safe” and “practically foolproof.” The jury was allowed to find that these were factual statements and did not constitute mere puffing or sales talk.

      . Compare Hawkins Construction Co. v. Matthews Co., Inc., supra, where it was advertised that a piece of equipment was “designed to safely carry working loads up to 20,000 pounds per panel.” The court held that the statement was specific and constituted an express warranty as a matter of law.