author: KELLY, Judge.

text:
    Frank J. BILDNER, Plaintiff-Respondent, v. Fred GIACOMA, Extr. of Estate of Joseph Gucciardo, Deceased, and Concettina G. Smith, Defendants-Appellants.
    Nos. 35550 and 35551.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 4, 1975.
    Rehearing Denied April 14, 1975.

      Thomas M. Gioia, St. Louis, for defendants-appellants.
    Dempsey, Dempsey & McCarthy, Richard B. Dempsey, Clayton, for plaintiff-respondent.
   KELLY, Judge.

These two appeals consolidated in this court are from a judgment of the St. Louis County Circuit Court ordering specific performance of an oral contract to devise two parcels of real estate to the respondent and denying the counterclaim of the appellant-executor for a sum of $26,000.00 he alleges was loaned to the respondent by his decedent prior to death and which remains due and unpaid.

The parties shall hereinafter be identified in the position they occupied in the trial court: i. e., Mr. Bildner as the plaintiff, Mr. Giacoma, the defendant-executor, and Mrs. Smith, the defendant.

Since some of the facts are undisputed, we shall set them out at this point. Emma Rose Gucciardo and Joseph Gucciardo were husband and wife; when they married is not revealed in the record. Frank Bildner, the plaintiff, is the natural son of Emma Rose Gucciardo and the step-son of Joseph Gucciardo. Mr. Gucciardo never adopted Frank Bildner. Concettina G. Smith is the natural daughter of Joseph Gucciardo from a prior marriage; she was never adopted by Mrs. Gucciardo after her marriage to Joseph Gucciardo. Fred Gia-coma is a long-time friend of Joseph Guc-ciardo who witnessed Mr. Gucciardo’s last will and testament and was named and has been appointed by the probate court of St. Louis County as executor of the estate of Joseph Gucciardo, deceased. Sometime in 1941 the Gucciardos and one Tony Dorsch purchased two unimproved parcels of ground situated at 9925 Lewis & Clark Boulevard, St. Louis County, Missouri, each holding a one-half interest therein. In the same year they constructed and commenced the operation of a service station business on the parcels selling Shell Oil Company products. They continued the operation of this business until 1957 when they leased it to the Shell Oil Company. Emma Rose Gucciardo died on March 8, 1967, and Joseph Gucciardo on May 5, 1970. Prior to his death, on July 18, 1967, Joseph Gucciardo executed his last will and testament wherein after providing for the payment of his just debts, funeral expenses and expenses of his last illness, he made certain specific bequests to his daughter, Mary Dempsey, to his nephew’s widow, Jean Gucciardo, and to his daughter, Concettina G. Smith, one of the defendants in this case. In the residuary clause of this will Joseph Gucciardo bequeathed all the rest, residue and remainder of his estate to his daughter, Concet-tina G. Smith and his stepson, Frank J. Bildner, each to take a one-half share. He further directed that Mr. Giacoma be named executor of his estate. This will, as heretofore stated, was admitted to probate, and at the time of trial was still in the process of probate.

On December 15, 1970, the plaintiff instituted this suit alleging that at the time of Mr. Gucciardo’s death, the decedent owned a one-half interest in fee simple in the two parcels of land on which the service station business was situate; that “On some date unknown now to the plaintiff, but in the year 1941, the plaintiff entered into an oral agreement with the decedents, Emma Rose Gucciardo and Joseph Guc-ciardo to the effect that if the plaintiff agreed to work at the Shell Service Station located on the said parcels of real property and then operated in part by the two decedents, the surviving decedent would, by his or her will, devise his or her interest to the plaintiff.” (Emphasis supplied). He further alleged that in reliance on these promises from 1941 up to and including 1957, at which time the Gucciardos and Mr. Dorsch ceased operation of the Shell Service Station and leased it to some person unknown to the plaintiff, he, the plaintiff, worked at the service station for the Gucciardos and did perform valuable services, all without compensation. He further alleged that in direct violation of the terms of this agreement Joseph Guc-ciardo on July 18, 1967, made and executed his will which has been admitted to probate and by which the decedent attempted to devise his interest in these parcels of real property, as part of the residue of his estate, in equal shares to the plaintiff and defendant, Concettina G. Smith. He further alleged that he had no adequate remedy at law and prayed that the court make and enter its decree awarding him the entire interest in said parcels of real property, that it order and direct the executor to make and execute his executor’s deed to the plaintiff and deliver same to him, that it direct the executor to pay over to the plaintiff the proceeds of the lease accruing to the estate together with interest thereon from and after the date of death of Joseph Gucciardo; that the court declare the specific bequest of the real property of the deceased located at 11855 North Ranch Drive to the defendant Concettina G. Smith to be null and void as in direct conflict with the provisions of the contract entered into between Joseph Gucciardo and the plaintiff; that the court further order and direct the executor of the estate to pay all specific bequests of cash out of the proceeds of the sale of the real property at 11855 North Ranch Drive, and for whatever other orders and decrees seem fit and proper. In Count II of his petition the plaintiff realleged all the allegations in Count I, further pleaded that the reasonable value of his services rendered to Joseph Gucciardo was in the amount of $19,760.00 and prayed the court that in the event he was denied relief under Count I of his petition he be awarded damages in the amount of $19,760.00, together with interest prorated over the period 1941 through 1957.

Defendant Smith filed her Answer to both Counts of plaintiff’s petition admitting the residency of the parties, the accuracy of the descriptions of the two parcels of land, that Mr. Giacoma is the executor of the estate, the alleged interest of the decedent in the real property and the service station business, that said interest was jointly owned by the Gucciardos until the death of Mrs. Gucciardo on March 8, 1967 and denied each and every other allegation in the petition. As affirmative defenses she pleaded the Statute of Frauds, § 432.010 RSMo 1969, V.A.M.S., and the 5 and 10 year Statutes of Limitations, §§ 516.120 and 516.110 RSMo 1969, V.A.M.S. She also alleged that if the allegations made by the plaintiff in his petition are proved then payment has been made of his alleged claim by the terms of the will of Mr. Guc-ciardo and acceptance of the claimed gift as alleged by the plaintiff himself. The Answer filed by the defendant-executor is in the same terms as that filed by defendant Smith.

The defendant-executor, in addition to his Answer filed a counter-claim, alleging that on July 7, 1967, and July 18, 1967, his decedent delivered to the plaintiff Cashier’s Checks in the amounts of $1,000.00, $4,000.00, $15,000.00 and $6,000.00, totalling $26,000.00, of the North County Bank, the Unity Savings & Loan Association and the Baden Bank as a loan to the plaintiff upon the promise of the plaintiff that he would have executed and delivered to the decedent a note and Deed of Trust secured by real estate at 6922 Willow Wood, St. Louis County, Missouri, which the plaintiff and his wife were then purchasing for an amount of $26,000.00; that said note and Deed of Trust were to be executed by both the plaintiff and his wife; that said note and Deed of Trust were never thereafter delivered to the decedent and at the death of the decedent the indebtedness in the sum of $26,000.00 had not been paid and was still due and owing, plus interest thereon from the 18th day of July, 1967. He prayed judgment in that amount. Plaintiff filed a reply to the counter-claim admitting receipt of the money, alleged that it was a gift, and denied each and every other allegation in said counter-claim.

After trial to the court on May 30, 1973, a judgment was entered on Count I of plaintiff’s petition wherein it was ordered and decreed that whatever right, title and interest Joseph Gucciardo had in the real estate described in paragraph 2 of Count I of the plaintiff’s petition, known as 9925 Lewis and Clark Boulevard, be vested in plaintiff free and clear of any claims of the defendants and to take priority over any bequest or provisions in the last will of the deceased, Joseph Gucciardo, to the contrary. It was further decreed that the plaintiff was entitled “to any and all rents from said real estate which the deceased Joseph Gucciardo and/or his estate received from and after his death.” Count II of plaintiff’s petition was dismissed “as same was a request in the alternative for relief in the event no relief was given to plaintiff under Count I.” Judgment was also entered in favor of the plaintiff on the counterclaim of the defendant-executor.

Both defendants filed motions to amend the judgment, order and decree, and in the alternative, for a new trial. These motions were taken as submitted and denied, whereupon both defendants filed notices of appeal “from the order denying his (her) Motion to Amend Judgment, Order and Decree, and in the alternative his (her) Motion for New Trial, entered in this action on the 27th day of June, 1973.” While these notices of appeal were timely filed, it is painfully apparent that they are completely ineffectual to bring anything before this court for review. The denial of a motion of this type is not an appeala-ble judgment. § 512.020 RSMo 1969, V.A.M.S.; A_ v. A_, 493 S.W.2d 660, 661 (Mo.App.1973). Although we would be justified in dismissing this appeal sua sponte, we shall nevertheless exercise our discretion and consider the appeal to be taken from the judgment and decree of May 30, 1973.

In reviewing an appeal from a decree ordering specific performance of an alleged oral contract by decedent our duty under Rule 73.01(d), V.A.M.R., is to review the case upon both the law and the evidence, not set aside the decree unless clearly erroneous, and give due regard to the opportunity of the trial chancellor to judge of the credibility of the witnesses. Webb v. Webb, 498 S.W.2d 757, 758[1] (Mo.1973). When an oral contract made with a deceased has been performed by the party still living and it would be a fraud on that party to enforce the statute of frauds, equity will interfere to decree specific performance of the contract; but, the party seeking specific performance will be held to clear and convincing proof and the agreement must be explicit and supported by adequate consideration. Watkins v. Watkins, 397 S.W.2d 603, 609[2] (Mo.1963). The law applicable in such cases is settled, and he who invokes the power of a court of equity to decree specific performance of an alleged oral contract seeks to avail himself of an exception to the statute of frauds, which exception is sparingly used and only in those instances where the strict letter of the statute would perpetrate a fraud upon the plaintiff. Steere v. Palmer, 359 Mo. 664, 223 S.W.2d 391, 392[2] (1949). He carries a heavy burden of proof, i. e., proof of the alleged oral contract must be such as to leave no reasonable doubt in the mind of the chancellor that the contract was in fact made. Steere v. Palmer, supra, l.c. 393[3]. The criteria against which each case must be measured was set out in Walker v. Bohannan, 243 Mo. 119, 139, 147 S.W. 1024, 1028[1] (Mo.1912) and is still the applicable law in this state. The court in Walker said, l.c. 1028: “Title to real estate should not slumber in oral contracts to convey. The very conscience of the court must be touched by the facts of the particular case before the exception to the statute will be called into play. The statute of frauds had its origin in the dangers which developed in permitting the title to real estate and contracts as to other weighty matters to rest in parol. Courts weighing evidence by the usual rules were constantly enforcing contracts, which were thought to have been proven by false and perjured testimony. The statutes were not only a boon to property interests, but to the courts as well. Not only so, but it removed from society the temptation to acquire property and property rights through fraud and perjury. With the acquired experience the courts had gained before the passage of the original statutes of frauds and perjuries, they were slow to ingraft thereon any exception to the iron-clad rule of the statute. Later, however, it became apparent to courts of conscience that frauds were being perpetrated under the strict letter of the statute. To obviate these frauds, the exception to the statute here invoked was adopted by courts of equity, but not without well-defined rules of procedure — rules, which like the statute itself, would be a safeguard as against the perpetration of frauds.”

These rules, mentioned in Walker, are: “(1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed made before the acts of performance relied upon were had.” Walker v. Bohannan, supra, l.c. 1028. (Emphasis supplied).

The issue in this case is whether under the evidence the aforesaid rules have been satisfied.

In reviewing the evidence we exclude from our consideration the testimony of Frank J. Bildner, the plaintiff, which was admitted over the defendant’s objection that the witness was the plaintiff in the cause and his testimony was barred by the Dead Man’s Statute. One of the defendants in this cause is Fred Giacoma, Executor of the Estate of Joseph Gucciardo, deceased, and § 491.010 RSMo 1969, V.A.M.S., provides “that in actions . where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor except as to such acts or contracts as have been done or made since probate of the will . . This provision, disqualifying an adverse party from testifying as to acts and contracts which occurred prior to the probate of the will is an arbitrary provision, and is not open to construction. In re Estate of Tomlinson, 493 S.W.2d 402, 403[3] (Mo.App.1973); Birdsong v. Estate of Ladwig, 314 S.W.2d 471, 475[3] (Mo.App.1958). Defendants’ contention that the trial court erred in admitting this testimony is well taken; however, since we will not consider this testimony in disposing of the other contentions presented by the defendants we conclude that this trial error alone cannot be considered prejudicial if the other evidence, taken as a whole, supports the judgment of the trial court.

The alleged oral contract sued upon is pleaded in the plaintiff’s petition as an agreement between the plaintiff and both Emma Rose Gucciardo, his mother, and Joseph Gucciardo, his step-father, “to the effect that if the plaintiff agreed to work at the Shell Service Station located on the said parcels of real property then operated in part by the two decedents, the surviving decedent would, by his or her Will, devise his or her interest to the plaintiff.” (Emphasis supplied). With this in mind we must then proceed to apply the evidence in the case against the Rules set out in Walker v. Bohannan, supra.

This record is absolutely devoid of any direct evidence that the agreement pleaded was the contract between plaintiff and the Gucciardos. There is not one iota of direct evidence relative to the terms of the agreement itself in the record. No witness offered by the plaintiff testified that he or she was present when the alleged agreement was entered into. Mrs. Bildner, plaintiff’s wife, testified that between 1941 and 1957 she, on at least 12 separate occasions, was present when there was a discussion relative to her husband’s compensation for work performed at the service station. Mr. Gucciardo would say, she testified: “That he would receive the interest in the station.” (Emphasis supplied). The reason, according to Mr. Gucciardo she testified, was: “Because he helped build up the station from the time it was erected until 1957; he worked.” Obviously if this reason was stated as Mrs. Bildner testified the conversation had to have occurred sometime subsequent to 1957 and could not be one of the 12 conversations occurring “between” 1941 and 1957.

Mrs. Florence Marrazza, the sister-in-law of Joseph Gucciardo, testified that over a period of years the Gucciardos visited her and her deceased husband in their home in Gary, Indiana, on four or five occasions. On one of these occasions she testified that she inquired of the Gucciar-dos : “. . . when they’s come who was taking care of their business And they answered by saying they could get away from their filling station because Frank was taking care of it; at (sic) the long run it would be his anyway.” She was asked if Mr. Gucciardo told her whether Mr. Bildner was being paid for his services, and she responded: “He said he wasn’t being paid.”

Mrs. Norma Davis, plaintiff’s sister-in-law, testified that on two separate occasions she was present when Mr. Gucciardo and Mrs. Gucciardo said: “That someday their property would be his. Because he was their son and helped.” One of these conversations took place in 1959 and the other in 1960. She further testified: “I don’t remember the exact words; just that he had worked with him to develop the filling station and he was their son.”

In not one of these conversations is there any reference to an agreement or to the agreement as pleaded. The difficulty with plaintiff’s position is that he attempts to establish the terms of the contract by evidence that he did perform services at the service station between 1941 and 1957 without compensation. In addition to the testimony of his wife, other witnesses who testified that they saw plaintiff perform services at the service station premises are Mrs. Marrazza, Mrs. Davis, Mr. Gerhard Lindemann and Edwin Fusch. The last two gentlemen were customers of the service station. However, none of them testified that, as in Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W.2d 905 (1939), they heard Mr. Gucciardo state that he had agreed to will the property to plaintiff in exchange for these services. Performance of the services in evidence here are as consistent with an agreement as alleged by the plaintiff as they are with the hope that thereby the plaintiff would ingratiate himself to the decedent step-father so that he would be a legatee of the will; they simply do not point to performance in accord with the alleged oral agreement beyond a reasonable doubt.

Both parties to this appeal have cited a number of cases in support of their respective positions. We find that in most instances the cases cited support one legal principle, viz., that in cases of this type each case must stand on its own particular set of facts, and we decide the case on the facts as we find them. We conclude that we are not here faced with the question whether we defer to the findings of the trial court where the question of credibility is concerned; for, taking the plaintiff’s evidence in its best light we hold that it does not establish the agreement as pleaded and therefore the trial court was clearly erroneous in decreeing specific performance of the alleged oral contract.

Our next consideration is the defendant-executor’s appeal from the judgment of the trial court on his counter-claim. His evidence, supplied by Mrs. Smith, was that sometime after July 18, 1967, Mrs. Bildner came to the home of Joseph Gucciardo in Florissant, Missouri, where, in her presence, Mr. Gucciardo gave Mrs. Bildner checks totalling $26,000.00 with which to purchase a new home and told Mrs. Bild-ner that he expected her to bring the “mortgage papers” back to him signed. At some later date Mr. Gucciardo told Mrs. Smith that Mrs. Bildner had not brought the “mortgage papers” back to him but that they, the Bildners, would pay him. The defendant-executor testified that he first learned of this transaction after the death of Mr. Gucciardo and that he filed the counter-claim at the direction of his counsel. He admitted that at no time during Mr. Gucciardo’s lifetime did the deceased tell him that Mr. Bildner owed him $26,000.00. The plaintiff introduced the testimony of Davie Cooper Scheitlin, a real estate broker for whom Mrs. Bildner worked, who testified that during the first week of July, 1967, and prior to the closing of the purchase of a home by the Bildners, the plaintiff, his wife, Ms. Scheitlin and Joseph Gucciardo were in the Scheitlin living room after they had inspected the residence the plaintiff and his wife subsequently purchased. Ms. Scheitlin had prepared a deed of trust and a promissory note for $26,000.00 which were to secure the monies Joseph Gucciardo was advancing to the Bildners so they could close the deal on the house. Ms. Scheitlin handed the deed of trust and the promissory note to Mrs. Bildner, who was to hand them to Mr. Gucciardo, but Mr. Gucciardo said he did not want them, that the money was a gift. Prior to the closing sometime later in July, 1967, Mrs. Bildner brought the check for $26,000.00 to her; she did not bring the deed of trust.

Defendant-executor contends the trial court erred because the evidence proves that at the time the $26,000.00 was delivered to the plaintiff there was no intent on the part of Mr. Gucciardo to make a gift. He argues that the claimed gift was not proven by clear and convincing testimony, beyond a reasonable doubt. This burden, he contends, rests with the plaintiff in this case. He cites no Missouri cases in support of his position but does rely on 38 C.J.S. Gifts, § 67e, which states “The courts view with suspicion claims of gifts inter vivos first asserted after the death of the alleged donor, and require clear and convincing evidence to sustain them, some courts saying that in such a case a mere preponderance will not suffice.” Most of the cases we have read so holding are those in which the estate has filed interrogatories for the discovery of assets in the probate court. In re Harlow’s Estate, 239 Mo.App. 607, 192 S.W.2d 5, 13 (1945); Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28, 32[1] (1928); In re Petersen’s Estate, 295 S.W.2d 144, 150[8] (Mo.1956). 38 C.J.S. Gifts § 65b, states: “On the other hand, if defendant merely pleads a denial to a complaint seeking to recover money or property, as in the case of an alleged loan, the burden of proof has been held to rest on plaintiff throughout the trial, although the burden of the evidence may shift to defendant with respect to his claim of a gift.” This rule of law has been followed in Roth v. Roth, 142 S.W.2d 818, 823[6] (Mo.App.1940) a suit by an executrix to recover monies allegedly loaned to the defendant, where the Court said:

“Where the question of gift arises by way of confession and avoidance, the burden of proof is, of course, upon the one asserting the gift, but such is not the situation here. Under the pleadings in this case, plaintiff alleged in the second count of her petition that the money had been loaned to defendant, who, by his answer, merely denied such allegation generally. While in the course of his evidence defendant admitted the receipt of the sums of money referred to in the second count of the petition, he did not admit that such sums had been loaned to him as alleged therein, but on the contrary, by way of showing that plaintiff’s cause of action had never existed, undertook to show that such sums had been received by him as gifts and not as loans. Distinguishing between burden of proof and burden of evidence, defendant unquestionably had the burden of evidence in the matter of establishing the fact that he had received the particular sums as gifts, but the burden of proving the cause of action asserted, that is, that the money had been loaned by the deceased to defendant, rested upon plaintiff, who, by charging such fact in her petition as the basis of her cause of action, had assumed the affirmative of the proposition, which she was obliged to sustain through the entire progress of the case.”

The reply filed in this case admits receipt of the $26,000.00 but further alleges that it was delivered to the plaintiff as a gift by the decedent. Plaintiff could have filed a general denial and nonetheless introduced evidence in support of his theory of the case that the monies were a gift and he would have had the burden of evidence in this respect; the defendant-executor would nevertheless still have the burden of proving that the money was a loan as alleged in his counterclaim. 38 C.J.S. Gifts § 64, states: “Under a general denial defendant may prove anything tending to show that plaintiff’s allegation is untrue. Thus in an action to recover property based on a superior right or title, proof of a gift to defendant may be made under a general denial, it being unnecessary specially to plead the same.” This too is the rule in suits to cancel a deed where the defendant contends that the deed was a gift. In Stallcup v. Williamson, 361 Mo. 440, 235 S.W.2d 318, 321[1, 2] (1950), the court said: “Wilkerson v. Wann, supra [322 Mo. 842, 16 S.W.2d 72], was a suit to cancel a deed and some broad observations therein are to the effect the defendant had the burden of proof (distinguished from the burden of going forward with the evidence) to demonstrate every essential fact necessary to the validity of the gift. In suits to set aside a voluntary deed this court has repeatedly said the burden of proof rests upon the plaintiff who seeks to set it aside. . . . The burden of going forward with the evidence may shift in appropriate instances, as where a fiduciary relationship et cetera is established; but the broad statements in Wilkerson v. Wann, supra, with respect to the burden of proof being on the donee by reason of the gift are not in conformity with our later holdings.” We conclude that the burden of proof in this case is upon the defendant-executor throughout and until he establishes a prima facie case that the $26,000.-00 received by the plaintiff was a loan when the burden of the evidence to establish that he received the money as a gift shifts to the plaintiff.

The evidence proffered by the opposing parties in this case is in conflict. Defendant-executor’s evidence tends to prove that when the decedent delivered the checks constituting the $26,000.00 purchase price to Mrs. Bildner sometime subsequent to July 18, 1967, he specifically requested that she return to him the “mortgage papers” signed. On some later date the decedent advised Mrs. Smith that Mrs. Bildner had not returned the “mortgage papers” to him as he had requested; nevertheless, he further expressed the opinion that the Bild-ners would nonetheless pay him. The decedent did not attend the closing nor did he in the interval between July 18, 1967 and May 5, 1970 — the date of his death— commence any legal action to recover this money. The evidence is that it was on the same date the decedent obtained the checks from the different depositories he also executed his Will leaving plaintiff a one-half interest in his residuary estate. Almost three years passed prior to his death and so far as this evidence shows the “mortgage papers” were never given to him by the Bildners nor was there any repayment of the alleged loan. We believe that the trial court could consider this fact as corroborative of the plaintiff’s contention that the $26,000.00 was a gift and not a loan in view of the fact that the decedent did not change his Will during that interval.

Plaintiff’s evidence was the testimony of Ms. Scheitlin that sometime during the first week in July, 1967, and prior to the closing, she prepared a deed of trust and a promissory note for Mr. Gucciardo as security for the $26,000.00 he was advancing to the plaintiff and Mrs. Bildner for the purchase of their new home but that the decedent refused to accept the documents from Mrs. Bildner stating that the money was a gift. She further testified that Mrs. Bildner did not bring her the deed of trust nor the note when she brought the checks totalling $26,000.00 some few days prior to the closing.

The trial judge afforded credibility to the testimony of Ms. Scheitlin on this issue, and determined that the defendant-executor failed to carry his burden of proving that the money was a loan. The essentials of a gift are donative intent, delivery and acceptance. 38 C.J.S. Gifts, § 10. “The essentials of a valid ‘gift inter vivos’ of personal property are a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the doneee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely.” In re Estate of Simms, 423 S.W.2d 758, 762[2] (Mo.1968). While the intention of the donor to effect a gift must be a present intention, it is not necessary however that the expression of the intention be synchronous with the delivery. 38 C.J.S. Gifts, § 15. Smith v. Smith, 313 S.W.2d 753 (Mo.App.1958).

The evidence supports a finding that the money in the form of three cashier’s checks was delivered to Mrs. Bildner, the wife of the plaintiff, and the checks were made out in Frank Bildner’s name. The plaintiff accepted the checks and used them to pay the purchase price of his home. On this record we conclude that we should defer to the trial court on the issue of the credibility of the witnesses with respect to the counterclaim and we therefore affirm the judgment with respect thereto.

The trial court did not reach the merits presented in Count II of the plaintiff’s petition, the Count seeking recovery in quantum meruit, but dismissed that Count on the grounds that it was an alternative Count and judgment having been entered on Count I of the petition in favor of plaintiff it was unnecessary for that Count to be decided on its merits. The action of this court reversing the judgment of the trial court on Count I of the petition would, we hold, require that the cause be remanded for a ruling on the merits with respect to the alternative Count. Rule 84.14 directs that the appellate court shall award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as the court ought to give, and unless justice otherwise requires, finally dispose of the case. Nevertheless, the furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had. Even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case was brought under a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him an opportunity to amend his petition, if so advised, so as to make a case upon the theory which his evidence discloses. Nelson v. Grice, 411 S.W.2d 117, 126[5] (Mo.1967). The evidence is clear that between 1941 and 1957 plaintiff worked without wages at the service station jointly operated by the Guc-ciardos and Mr. Dorsch. There is further evidence that he did not consider his services to be a gift and that Mr. Gucciardo did not so consider them. However, the defense of the statute of limitations has been pleaded, and Count II of the plaintiffs petition realleges all of the allegations in Count I of his petition but seeks therein to recover the reasonable value of his services. He nowhere alleges fraud on the part of the decedent but, rather, that the decedent violated the terms of an agreement to will to plaintiff decedent’s interest in the real estate and the service station thereon situate, by executing a will on or about July 18, 1967. This suit was commenced on December 15, 1970. We have held that with respect to Count I and the pleadings thereof incorporated in Count II of plaintiffs petition, there is insufficient evidence of the purported oral agreement to allow of specific performance. Nonetheless, in view of the fact that the trial court did not reach the merits of plaintiff's quantum meruit Count, we conclude that the cause should be reversed and remanded to the trial court with directions to set aside the judgment entered in behalf of the plaintiff and against the defendants on Count I of plaintiffs petition and enter in lieu thereof a judgment in behalf of the defendants and against the plaintiff thereon. We further direct that the trial court set aside its order dismissing Count II of the plaintiffs petition and proceed to dispose of that claim on its merits. We affirm the judgment of the trial court with respect to defendant-executor’s counterclaim.

DOWD, C. J., and SIMEONE and WEIER, JJ., concur.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Udell MORRIS, Appellant.
    No. 35975.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 1, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, William F. Arnet, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Arthur Friedman, Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Udell Morris, charged under the Second Offender Act, § 556.280 RSMo 1969, V.A.M.S., with rape and robbery with a deadly and dangerous weapon, was found guilty by a jury and sentenced by the court to imprisonment for terms of thirty-five years for rape and fifteen years for robbery, the terms to be served consecutively.

There is no challenge to the sufficiency of the evidence. A jury reasonably could find from the evidence that at about 1:30 o’clock in the morning of April 21, 1973, as Doris Sellers started to enter her apartment at 425 Compton in St. Louis City, appellant grabbed her arm, placed a butcher knife at her throat and ordered her to accompany him to Chambers Park where he took from her a cocktail ring, a Bulova watch, and $32.00 in cash. He then took her behind some nearby houses and compelled her by threats to kill or injure her to have sexual intercourse with him.

Police officers found a butcher knife at the place where Doris Sellers stated the rape occurred, and she gave the police a detailed description of her assailant. About 5:00 o’clock that afternoon the police took Ray Morris into custody and he was placed in a lineup with three other persons. Doris Sellers stated that Ray Morris resembled her assailant, but that he was not the one. After some questioning by the police, Ray Morris told the police that it was his brother, Udell Morris, the appellant, whom they wanted, and that he had boarded a bus for Detroit earlier that day. The police then showed Doris Sellers five photographs of different persons, none of whom had been in the previous lineup, but one of whom was Udell Morris. She immediately identified appellant as her assailant.

Police Officer Don Hardy of the St. Louis Metropolitan Police Department called the Detroit, Michigan Police Department by telephone about 8:00 o’clock of that same evening and told Sergeant James Hardy (a coincidence of names) that he was Detective Hardy, St. Louis Police Department, and he further identified himself by stating his badge number. Officer Don Hardy told Sergeant James Hardy that appellant was wanted in St. Louis for rape and for robbery, and gave him a description of appellant as to age, size, weight, color and how he was dressed. Officer Don Hardy had previously talked to Doris Sellers, he had observed the lineup in which Ray Morris was present, and it was he that Ray Morris had told that it was appellant the police wanted and that appellant was on a bus on his way to Detroit. It was also Officer Don Hardy who showed the five photographs to Doris Sellers when she immediately identified appellant from his photograph as her assailant.

Officers James Hardy and Harry Barnes of the Detroit Police Department met the bus, and when appellant alighted, Officer Barnes identified himself and asked appellant if he had any identification. Appellant produced a Missiouri drivers’ license with the name of Udell Morris, and Officer Barnes told him he was under arrest, and that he was wanted in St. Louis for rape and robbery. He was there “padded down” for weapons but not searched. At the station appellant was told to take everything out of his pockets and place them on the counter. The police intended to place him in the detention cell, and pursuant to the rules of the police department the officers wanted to be sure he had nothing with him, such as “narcotics, pins, needles, whatever.” After appellant purportedly emptied his pockets the police searched him, and in his “back” pocket they found a woman’s white gold Bulova watch. He was then asked if he had anything else, and he handed the officer a woman’s ring. This watch and ring were subsequently identified by Doris Sellers as the watch and ring that had been taken from her in the robbery.

Appellant’s first three points are that the trial court refused to suppress the evidence, watch and ring, taken from him at the time of his arrest because (a) “that arrest was invalid and illegal under Michigan law,” (b) the officers “who instigated it [the St. Louis police officers] lacked legally cognizable probable cause,” and (c) the court erred in overruling his motion to suppress evidence “without making findings of fact and law.”

We shall briefly dispose of the contention that the St. Louis police officers “lacked legally cognizable probable cause” to cause the arrest of appellant for the robbery and rape of Doris Sellers. She had reported the occurrence of the two offenses to the police, and they found at the place of the rape the butcher knife that she had said was held and used by her assailant. In addition, she had given the officers a detailed description of her assailant which matched that of appellant, and she had immediately picked his photograph from a group of five photographs. Other facts that could have been considered by the police in their determination of probable cause were the statement of Ray Morris and the flight of appellant from the St. Louis area.

“Probable cause does not require absolute certainty that an offense had been committed. United States v. Valentine, 427 F.2d 1344 (8th Cir. 1970). The information in the possession of the arresting officer need not be that quantum of proof necessary to sustain a conviction.” State v. Perry, 499 S.W.2d 473, 476 (Mo.1973). There is no question but that if the St. Louis police officers had located appellant preparing to board the bus for Detroit they would have had probable cause to then arrest him for the rape and robbery of Doris Sellers.

The important issue here is whether the arrest of appellant in Detroit by the Detroit police was a lawful arrest.

The law of the place of the arrest governs the legality of the arrest, United States v. Morris, 445 F.2d 1233 (8th Cir.1971); State v. Klein, 25 Wis.2d 394, 130 N.W.2d 816 (1964), when consistent with minimum standards of the Fourth Amendment of the United States Constitution.

Section 764.15, M.C.L.A. provides that any peace officer may, without a warrant arrest a person when a felony has in fact been committed and he has reasonable cause to believe such person has committed it, or when he has reasonable cause to believe that a felony has been committed and has reasonable cause to believe that such person committed it.

There is authority that when a police officer makes an arrest on the basis of a message received over the police radio, the question of probable cause is to be adjudged upon the full information which caused the message to be sent and not on the message alone. See the new paragraph to § 46 in current pocket parts of 5 Am.Jur.2d, Arrest, and People v. Webb, 66 Cal.2d 107, 56 Cal.Rptr. 902, 424 P.2d 342 (1967). This would be equally true as to a reliable telephone communication from one police officer to another, and as above stated, Officer Hardy of the St. Louis Police Department had probable cause to make or order the arrest. The United States Supreme Court has recognized this basic principle, but it has not been so succinctly stated.

In Whitely v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the Carbon County sheriff placed an item on the radio to pick up two persons suspected of breaking and entering and for which a warrant for arrest had been obtained. Pursuant to that radio communication the defendant was arrested by a deputy sheriff at Laramie, Wyoming. The arrest was ruled to have been illegal because the warrant, which formed the basis of the message, was defective; it lacked probable cause on the part of the issuing magistrate. In the course of the opinion, it was said: “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be isolated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) an informer, by the name of Hereford, sometimes paid for his services, informed a narcotics agent by the name of Marsh that the defendant would arrive in Denver by train with heroin in his possession, and Hereford furnished a complete description of the defendant. The court ruled that Marsh had probable cause to arrest defendant when he alighted from the train even though the information in his possession was hearsay. It was there stated: “There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” Quoting from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), it further said: ‘“In dealing with probable cause ... as the very names implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”

In this case the St. Louis police officer was pressed for time. He completed his investigation after 8:00 o’clock in the evening, and appellant was already on the bus and was to arrive in Detroit in a few hours. Under these circumstances, it was reasonable to contact the Detroit police by telephone and ask their assistance in apprehending appellant. In fact, it would have been a dereliction of duty on the part of Officer Don Hardy not to use a means of communication which assured him that the information would get to the correct person in time to take the necessary and proper action. Just as in Whitely v. Warden of Wyoming State Penitentiary where the court held that the Laramie police were entitled to rely on the strength of the radio bulletin, in this case the Detroit police were entitled to rely on the strength of telephone communication from a reliable source, an officer of the police department of St. Louis. Although in the Whitely case it subsequently developed that the radio bulletin was based on a warrant issued without probable cause, in this case the telephone communication was in fact based on information in the possession of the communicator that constituted probable cause to make an arrest without a warrant.

The Bulova watch and ring were obtained by the Detroit police as an incident of a lawful arrest, and therefore were not subject to being suppressed as evidence.

Appellant admits that there is no requirement in this state that the trial court enter a record findings of fact and conclusions of law when it overrules a motion after a hearing to suppress evidence. More important, however, appellant made no such request and therefore, in any event he cannot now claim any error on the part of the trial court.

Appellant’s final contention is that the trial court erred in refusing testimony concerning a statement made by him at the time of his arrest.

• Sergeant Barnes of the Detroit police testified at the hearing to suppress the statement that after he asked appellant for and had been shown identification, he told appellant that he was under arrest, and that he was wanted in St. Louis for rape and robbery. According to Sergeant Barnes, appellant then said: “Goddamn, how did you get me so fast?” Appellant testified at the hearing on the motion to suppress to the same sequence of occurrences, but that the statement made by him was: “Goddamn, What have I done now ?”

It was after appellant made this statement, whichever it was, that he was given the “Miranda” warnings. But, the testimony of Sergeant Barnes and also that of appellant clearly shows that the statement was spontaneous and voluntary on his part, and that it was not made as the result of any question asked him by any police officer. Therefore, the statement of appellant as related by Sergeant Barnes (appellant did not testify at the trial and the jury did not hear his version of what he claims he said) to the jury was not subject to being suppressed by reason of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Lewis v. State, Mo., 501 S.W.2d 20 (1973); State v. Hyster, Mo., 504 S.W.2d 90 (1974).

The judgment is affirmed.

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


author: WEIER, Judge.

text:
    John P. CURRAN, Jr., and Mabel Curran, his wife, Plaintiffs-Respondents, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.
    No. 35771.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 25, 1975.
    Rehearing Denied April 14, 1975.

      Boas, Schneider & Walsh, John A. Walsh, Jr., St. Louis, for defendant-appellant.
    Nichols, O’Shea & Hayes, Thomas M. O’Shea, St. Louis, for plaintiff s-respondents.
   WEIER, Judge.

John and Mabel Curran brought suit against Bi-State Development Agency for damages. Their cause of action as submitted to the jury charged defendant Bi-State with primary and humanitarian negligence in the operation of a bus causing personal injuries to John Curran. Verdict and judgment were rendered in favor of John Curran for $16,000.00 and in favor of his wife Mabel for $4,000.00 on her claim for loss of consortium. Bi-State has appealed.

On appeal defendant contends that the trial court erred by giving plaintiffs’ verdict-directing instruction hypothesizing humanitarian negligence on failure of defendant to stop or swerve. Defendant urges that there was no evidentiary support for the submission of failure to swerve. This is based on the assertion that there was no evidence that defendant could have avoided the collision by swerving, with the means available. Plaintiffs, on the other hand, contend that substantial evidence was introduced from which to draw a reasonable inference that defendant could have avoided the collision by swerving under the humanitarian doctrine.

Five witnesses, one of them plaintiff, testified to five different versions of the incident which gave rise to this case. Despite the variance in the testimony given by plaintiff and his witnesses, there was one theme common to all. It was uncontroverted that defendant’s bus started up from a stopped position and either struck plaintiff while he was standing not more than four feet in front of the bus or while he was standing at or near the front door on the right side of the bus. All of the versions indicated that the driver of the bus had swerved, either away from plaintiff to the bus’s left side or into plaintiff when it made a turn to the right, or both. But this situation, so presented, is not one upon which a humanitarian case may be predicated. In cases involving a vehicle starting up from a stopped position and thereafter coming into collision with a person or object nearby after being in motion for but a very short time, the position of immediate danger is not so certain, immediate and impending for a sufficient length of time that the humanitarian doctrine can be applied. Thus, in Smith v. Siedhoff, 209 S.W.2d 233, 237[4] (Mo. banc 1948) the vehicle had moved from a stopped position at most a very few feet at a very low speed before the collision occurred which caused injury to plaintiff. The driver did swerve. But it was determined that no causal connection could be made between failure to swerve and the injury under the humanitarian rule. In Edelen v. St. Louis Public Service Company, 279 S.W.2d 188, 190 (Mo.App.1955) a starting up by a bus driver and subsequent collision with a pedestrian was not within the humanitarian doctrine but rather it was primary negligence, or willful, wanton and reckless conduct. There the act of starting a vehicle forward from a stopped position did not place the person injured in a position of imminent peril within the meaning of the humanitarian doctrine. It may be that the wrongful act or conduct of the offending driver may have brought the injured person into imminent peril, but where the imminent peril or immediate danger arises only because of something defendant is about to do, and when the act or conduct results in immediate injury to plaintiff, the case should be submitted upon a theory of primary negligence, not upon the humanitarian rule. McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 706[1] (banc 1952). The definition of immediate danger contemplates that there must be some inexorable circumstance, situation or agency bearing down on the plaintiff with a reasonable probability of danger prior to the negligent act of the defendant. Russell v. St. Louis County Cab Company, Inc., 493 S.W.2d 26, 28[1] (Mo.App.1973).

Here the defendant through its driver may be determined to be guilty of primary negligence in striking the plaintiff at the time the vehicle started up from its stopped position, but there was no intervening time or distance for the humanitarian rule to become effective. Thus defendant’s assertion that the evidence did not support the humanitarian submission in plaintiffs’ verdict directing instruction on failure to swerve is a valid contention of error. Although not asserted, this is also true as to plaintiffs’ submission of the humanitarian rule on failure to stop. Plaintiffs’ case in the situation presented by their evidence is one of primary negligence or willful, wanton and reckless conduct and must be submitted on one of those bases.

Since the case must be reversed and remanded for new trial, and the other asserted contentions of error will probably not occur on retrial, we will not pursue their solution.

The judgment is reversed and the case remanded.

DOWD, C. J., and CLEMENS and RENDLEN, JJ., concur.


author: STEWART, Judge.

text:
    UNITED REALTY COMPANY, Plaintiff-Respondent, v. Ellis S. OUTLAW et al., Defendants-Appellants.
    No. 36023.
    Missouri Court of Appeals, St. Louis District, Division No. 2.
    March 4, 1975.
    Rehearing Denied April 14, 1975.
    Ellis S. Outlaw, St. Louis, Harrison W. Hollie, Alton, Ill., for defendants-appellants.
    Sigoloff & Sigoloff, St. Louis, for plaintiff-respondent.
   MEMORANDUM OPINION

STEWART, Judge.

Plaintiff, the owner of an apartment building which is across the alley from property owned by defendants, obtained a mandatory injunction ordering defendants to remove a wall which defendants had constructed across an easement on defendants’ property. Defendants appeal from this judgment.

It is conceded that one of defendants’ predecessors in title created an easement by grant in writing to plaintiff’s predecessors in title for the “use and benefit of the present and future owners” of the two tracts of land “their heirs and assigns”. The property was conveyed to defendants subject to the easement. Defendants sought to avoid the effect of the written grant of the easement with the contention that the easement had been abandoned. Ordinarily a written easement agreement is not lost by nonuser. Franck Bros., Inc. v. Rose, 301 S.W.2d 806 (Mo.1957).

We have reviewed the record and find no evidence which would warrant a finding that the easement had been abandoned. The judgment of the trial court is not erroneous and no error of law appears. The case above cited is controlling. A full opinion would have no precedential value.

We affirm in compliance with Rule 84.-16(b).

SMITH, C. J., and KELLY, J., concur.

      . It would serve no purpose to set out the easement in detail because there is no question as to the description and location of the easement.


author: DIXON, Judge.

text:
    Albert Roy VanDYKE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 26614.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Don Chapman, Jr., Chapman & Chapman, Chillicothe, for movant-appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Albert VanDyke pleaded guilty to a charge of second degree murder and was sentenced to life imprisonment. VanDyke filed this motion to vacate that sentence under Rule 27.26, V.A.M.R. The trial court denied the movant relief.

In 1951 the movant was indicted in Chil-licothe, Missouri, for the murder of his grandmother.' He was incarcerated in Livingston County, Missouri, on June 23, 1951, after he had been apprehended in and returned from Denver, Colorado. The venue for trial was changed to Linn County, Missouri. Movant then pleaded guilty to the second degree murder charge on April 3, 1952.

The movant asserts that the court below erred on three grounds in denying him relief. First, movant claims the trial court erred in overruling his motion to vacate the sentence because he did not enter his guilty plea voluntarily nor was there an affirmative showing on the record that his plea was voluntary. Second, movant asserts the trial court erred in overruling his motion because the original trial court failed to conduct a hearing to determine movant’s mental competency at the time he entered his plea. Third, movant asserts the trial court erred in overruling his motion because the movant was prejudiced by not having counsel present when he waived his right to a preliminary examination.

The findings and conclusions of the trial court denying movant relief are not clearly erroneous. Movant’s request for relief is denied.

Movant claims he did not voluntarily enter his guilty plea because at the time he pleaded guilty he was under the influence of drugs. He alleges he ingested several “tranquilizer” pills the night before and immediately prior to pleading guilty. Movant testified that during the time he was held in jail prior to trial he was given two “tranquilizer” pills daily. He said that instead of taking the pills each day he saved them. He said that he took eight pills the night before he pleaded guilty in an effort to commit suicide. He alleges he also swallowed four more pills within 90 minutes of pleading guilty. Movant claims that at the time he entered his plea, he was “uncapable of speech.” He said, “I nodded my head and tried to speak and when asked for my plea, but was unable to answer.” He also said, “. . . I didn’t feel nothing, didn’t feel no remorse or nothing, everything was neutral to me.” The sheriff of Linn County and his wife were in charge of the jail during the time that the movant was incarcerated. They both testified that it was “possible” that the movant had received tranquilizer pills daily prior to the day he entered the plea. The sheriff of Linn County was present when the movant pleaded guilty. He said that the movant appeared “alert.” He said, “I could see no action that would indicate any abnormality.” The sheriff said that the movant did not appear to him to be “drugged” in any way. Ronald Somer-ville, who, in 1951, was the Livingston County prosecuting attorney, was present at the time movant pleaded guilty. He said,

“I don’t recall a single thing about the events that occurred that morning to indicate, or would indicate anything other than the fact that Mr. VanDyke was fully aware of what was taking place and he fully participated in all the proceedings.”

Somerville said that he could not remember that the movant acted in “any abnormal way.”

Movant’s own testimony indicates that when he pleaded guilty he was not in the comatose state of mind he now claims. Movant recalled the specific corner of the courtroom in which he conferred with his attorney prior to pleading. He also recalled that about one hour prior to pleading guilty he conferred with his attorney for ten minutes. He also recalled that he took the last of the tranquilizers in the courthouse 20 to 30 minutes prior to meeting with his attorney. He even recalled the name of a married couple, the Milli-gans, who were in the courtroom while he was awaiting his hearing and the particular town from which they came, Sumner, Missouri. There was no evidence other than movant’s own testimony to indicate that he pleaded guilty involuntarily because he was under the influence of drugs.

Movant also claims his plea was involuntary because he was mentally incompetent. He attempted to show a prior history of mental illness to support that claim.

Movant testified that while he was in Denver, Colorado awaiting extradition to Livingston County, Missouri, a psychiatrist gave him a mental examination. In the opinion of the psychiatrist, movant suffered from “paranoid schizophrenia.” The results of that examination were not presented, but on the motion, the defendant offered his own hearsay statement of the psychiatrist’s opinion. The trial court indicated he would not consider this evidence because of the hearsay nature of the proof. The movant also testified that he had twice attempted suicide in years prior to entering his plea; that he had been declared mentally incompetent in Bourbon County, Kansas; that he had been placed in a Veterns Hospital for alcoholism. Additionally, he offered evidence of an outburst of violence on his part while confined in the county jail. Oddly enough, he also testified to a mental examination made by physicians at the State Hospital No. 2 in St. Joseph, Missouri, after he was charged. The movant said the examination indicated that the movant was mentally competent.

The issues thus raised are factual. Upon the basis of this evidence, the trial court’s finding that movant’s plea was not involuntary either because of his ingestion of drugs or his emotional state is clearly supported and could not be found to be clearly erroneous. Crego v. State, 447 S.W.2d 550, 553 (Mo.1969); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). Any issue of credibility was for the trial court, and a finding such as this one clearly based on credibility is entitled to deference. Goodloe v. State, 486 S.W.2d 430 (Mo.1972).

The issue as to the claim that the trial court erred in failing to find the defendant incompetent to conduct a defense requires more explication. Under the statutes in effect at the time of the entry of the plea, the obligation of the trial court on the issue of competency to stand trial was to call a jury to inquire into the present capacity of the defendant. [Section 545.750 RSMo 1949, V.A.M.S., now repealed.] That obligation arose when the trial court “shall have reason to believe.” The difficulty with the defendant’s argument here is that the record on the 27.26 hearing does not clearly indicate how much of what the defendant now claims as a basis for the trial court’s having “reason to believe” was actually made known to the court prior to the plea. It is certain one such fact was known to the trial court, the examination of the defendant by the doctors at the State Hospital. This because it is clear that the trial court ordered that examination. The report of the physicians is not in evidence, but the ultimate conclusion is in evidence from the defendant’s own mouth. No criticism of the handling of the Rule 27.26 hearing is intended by these references to the rather meager record. The plea was over twenty-five years ago; the .defendant was paroled sometime prior to 1970 and then recommitted after commission of another felony. The reporter is deceased and defendant’s lawyer at the plea proceeding is deceased. The defendant testified to all of the alleged facts showing his mental state, but there is no showing of any kind that the trial court was apprised of those facts, other than the examination in St. Joseph. On this issue, the trial court’s finding that the defendant had not sustained the burden of establishing that he was mentally incompetent to conduct his defense at the time of the plea is not clearly erroneous and must be sustained. Crosswhite and Crego, supra.

Movant also claims under his first point that the trial court erred because there is no affirmative showing on the record of the original trial that the movant pleaded voluntarily. He claims that the trial judge should have established on the record through inquiry of the movant that the movant pleaded guilty understandingly and voluntarily. The movant asserts, “It is the duty of the court to determine that a defendant’s plea is voluntary.”

Movant relies on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held that it was reversible error for an Alabama state court to accept a guilty plea on a charge punishable by death without an affirmative showing on the record that the plea was intelligent and voluntary.

However, Boykin, supra, has not been applied retroactively. Crego v. State, 447 S.W.2d 550, 553 (Mo.1969). Also Babcock v. State, 485 S.W.2d 85, 89-90 (Mo.1972), held:

“Noncompliance with Rule 25.04, . . . supra, does not require that a plea of guilty to be set aside if the record shows it to have been, in fact, voluntarily entered, and a plea which predates Boykin v. Alabama, supra, is not judged on its standards because it has not been applied retroactively, Bracy v. State, Mo., 456 S.W.2d 302.”

Movant also relies on State v. Roach, 447 S.W.2d 553 (Mo.1969), a direct appeal from a guilty plea and the overruling of a motion to withdraw the plea. The conviction was reversed because there was no affirmative showing on the record that the guilty plea was entered voluntarily. However, the lack of an affirmative showing on the record of the voluntariness of the plea in Roach was supported by independent facts in the record which indicated that the plea was actually involuntary. The court in Roach clearly relied upon these facts in reversing the trial court. Roach, supra, did not establish that the lack of affirmative showing of voluntariness is alone per se reversible error in cases involving pleas taken prior to Boykin and in fact did not rely on the Boykin rule referring to Crego as holding Boykin was not to be retroactively applied.

Indeed, it has been held as to pleas entered prior to Boykin that there is no requirement that “the trial judge make explicit inquiry of a defendant.” Flood v. State, 476 S.W.2d 529, 533 (Mo.1972). The court in Flood, supra, said, “ . the basic question is whether or not Flood’s pleas of guilty were in fact voluntarily made with understanding of the nature of the charge, . . . not whether the trial judge followed some particular procedure before accepting the pleas.” (1. c. 533).

The lack of an affirmative showing of voluntariness on the record does not vitiate a 1952 plea, and the trial court’s finding on this issue was correct.

Movant’s third and final point on appeal is that the court below erred in overruling his motion because the movant did not have counsel when he waived his right to a preliminary examination. The movant failed to raise this point in his motion to vacate his sentence. The trial court made no findings or conclusions on the point. It should not be considered on appeal for the first time. Fritz v. State, 449 S.W.2d 174 (Mo.1970).

The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Theodore Lafayette EWING, Appellant.
    No. KCD 26944.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Willard B. Bunch, Public Defender, Cenobio Lozano, Jr., Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMMERVILLE, P. J., PRITCHARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant has filed a direct appeal from the order of the circuit court revoking his probation. Defendant had pleaded guilty to two charges of robbery in the first degree and had received two ten-year sentences to run consecutively. He was placed on probation after such plea for a period of five years.

Within the five-year period of probation, defendant was charged with robbery in East St. Louis, Illinois, and was charged with robbery in St. Louis County Missouri. After these two charges were brought to the attention of the court, the court issued a cap¡aS) the defendant was taken into custody, and has been held since that time.

Subsequent to the issuance of the capias, the court, on its own motion, appointed counsel for defendant and set a revocation hearing. After the revocation hearing, the court ordered the probation revoked on each ten-year sentence and ordered defendant to serve those sentences. Defendant has filed a direct appeal from the order revoking defendant’s probation on each conviction.

At the threshold of this case is a motion by the State to dismiss this appeal on the grounds there is no appeal provided from an order revoking parole and probation, and in fact, such appeal is prohibited by § 549.141 RSMo 1969, V.A.M.S.

The question of whether or not a direct appeal will lie from an order revoking parole or probation was decided by the Springfield District of the Court of Appeals in State v. Camden, 514 S.W.2d 181 (1974). In that case the court held direct appeal was prohibited by § 549.141 and by the holding of the Supreme Court in State v. Phillips, 443 S.W.2d 139 (Mo.1969) and State v. Gideon, 510 S.W.2d 190 (Mo.App.1974). The St. Louis District reached the same result in State v. Madison, 519 S.W.2d 369 (Mo.App.1975).

It may be noted that Phillips was decided prior to the decision by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Subsequent to the decision in Morrissey, the Missouri Supreme Court decided State ex rel. Douglas v. Buder, 485 S.W.2d 609 (Mo. banc 1972), [reversed on other grounds 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973)]. In Douglas the court held that since Morrissey “the liberty granted a probationer or parolee is a right (and not a privilege) which, once given, cannot be withdrawn in such a way as to deny him due process . . . ” Douglas involved a writ of prohibition and the import of that case would seem to be that since Morrissey some type of review of the revocation of probation or parole is mandatory to assure that such revocation was made after affording due process.

In State v. Wilhite, 492 S.W.2d 397 (Mo.App.1973) the court reviewed a revocation of parole on a direct appeal. However, the question was not raised nor decided as to the propriety of a direct appeal from such an order.

In Gideon the court accepted the invitation of defendant’s counsel to treat the direct appeal as an original application for a writ of habeas corpus and by so treating it, reviewed the order revoking probation.

In Smith v. State, 517 S.W.2d 148 (Mo.1974) the court stated that notwithstanding § 549.141, an order revoking probation or parole is reviewable and cited Douglas and Wilhite.

It has also been held that an order revoking probation or parole does not come within the purview and scope of a proceeding under Rule 27.26, V.A.M.R. Green v. State, 494 S.W.2d 356 (Mo. banc 1973).

Since the decision in Morrissey, there would seem to be no doubt a probationer or parolee is entitled to a review of an order by which he is deprived of his liberty. However, the precise mode of such review has not been determined. It has been accomplished by prohibition as in Douglas, and by habeas corpus as in Gideon. However, in the only cases in which the right to review by direct appeal has been questioned, direct appeal has been held to be not available. State v. Camden, supra, State v. Madison, supra.

In the case at bar, defendant’s counsel has not requested that his appeal be treated as an original application for a writ of habeas corpus, and has not responded to the motion to dismiss filed by the State supported by suggestions.

Until a specific rule or statute is adopted which allows direct appeal from an order revoking probation or parole, this court will adopt the view stated in State v. Camden, supra and State v. Madison, supra, and hold that review by direct appeal is not available.

There is ample provision for review by way of writ of habeas corpus or prohibition to accomplish the required review,- and those procedures should be followed when factually supported.

The motion of the State to dismiss this appeal is sustained.

Appeal dismissed.

All concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Gary Vincent JOHNSON, Appellant.
    No. 9556.
    Missouri Court of Appeals, Springfield District.
    April 4, 1975.

      Arthur A. Benson II, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Karen I. Harper, Asst. Atty. Gen., Jefferson City, for respondent.
   HOGAN, Judge.

Gary Vincent Johnson was convicted by a jury of the offense of robbery in the first degree by means of a dangerous and deadly weapon, as defined and denounced by §§ 560.120 and 560.135, RSMo 1969. The Second Offender Act, § 556.280, was found to be applicable and defendant’s punishment was assessed at a term of 99 years’ imprisonment. On this appeal defendant raises, or attempts to raise, the following questions :

1. Did the trial court err in denying defendant’s motion to suppress eyewitness identification testimony given by witness Edward Bond because the pretrial identification procedure used violated defendant’s right to due process ?

2. Did the trial court err in admitting testimony corroborating witness Fred Coleman’s extrajudicial identification of the defendant ?

3. Was the defendant penalized for exercising his right to a jury trial ?

4. Did the trial court err in denying defendant a change of venue because of the bias and prejudice of the inhabitants of the 29th Judicial Circuit?

5. Did the trial court erroneously limit defendant’s voir dire examination of the jury panel?

6. Did the trial judge erroneously fail to disqualify himself upon defendant’s motion ?

Answering each question properly raised in the negative, we affirm the judgment below.

Defendant’s conviction arose out of the robbery of the Paddock State Line Liquor Store, located adjacent to the Kansas border in Jasper County. About 11:00 p. m. on October 9, 1971, Edward Bond and Fred Coleman, employees of the. store, were engaged in totaling the day’s receipts. Two men, later identified as the defendant and his brother, entered the store. Defendant approached the counter; his brother remained near the entrance. Coleman was busy counting money and Bond waited on the defendant. Defendant ordered whiskey and a chaser, and asked Bond to compute the amount due. Defendant was “right up at the counter”, “about three feet” from Bond. When Bond “looked up” after making his calculations, defendant had drawn a handgun and was pointing it at Bond’s chest. Defendant then announced, “This is a stick-up, get em up.” This statement focused Coleman’s attention upon the defendant, and both employees immediately “got em up.”

Defendant then told Bond and Coleman that he wanted “all the paper money” and “the money in your billfold, too”. Coleman, an experienced employee, carried no money when he was working at night, but Bond had cashed his paycheck. Bond laid the currency from the cash register and his own $46 on the counter. Defendant picked up the money, handed it to his brother, and ordered Bond and Coleman to lie supine near the entrance to the door. They did so. Defendant’s accomplice left the store to see if the two could leave without being observed. Before leaving, defendant told Bond and Coleman that they were to be quiet, that he could “still shoot [them] through the window”. Defendant then opened the entrance door “a crack” and asked his confederate, “[A]re you ready Jack?” Both men then left and drove off toward Galena, Kansas.

During the trial, it was brought out that Bond and Coleman were standing side by side when the defendant drew his weapon and announced his criminal purpose; neither defendant nor his brother wore a mask; Bond and Coleman had five to seven or eight minutes to observe the robbers, and Coleman “looked [defendant] right in the eye” during the whole time. The only indication that either Bond or Coleman’s faculties of observation were in any way. impaired appears in Coleman’s testimony that Bond “was extremely nervous” during the robbery.

The defendant vigorously asserts that Bond’s' in-court identification testimony was tainted by impermissibly suggestive pretrial identification procedures and should have been excluded on his motion to suppress. We have examined the record and have considered this contention in light of the criteria laid down in State v. Boothe, 485 S.W.2d 11, 13 [1, 2] (Mo. banc 1972), and State v. Parker, 458 S.W.2d 241, 243-244 [1, 2] (Mo.1970), but extended discussion of the point is unnecessary. The in-court identification testimony, at least, was admissible if the State was able to show a basis for this testimony independent of the pretrial identification procedures. State v. Ramsey, 477 S.W.2d 88, 90 [2] (Mo.1972); State v. Johnson, 457 S.W.2d 762, 764-765 [2] (Mo.1970). In this case the witness had an ample opportunity to observe the defendant while the robbery was taking place. Considering the evidence heard on the motion to suppress and that offered at the trial, it appears that Bond had the defendant under direct observation for a period of seven or eight minutes while the robbery was taking place; defendant wore no nylon stocking, ski mask or other disguise over his face, and if Bond was “extremely nervous” during the robbery, there is no indication he was so frightened he could not make accurate observations. In addition, at the hearing on the motion, Bond repeatedly asserted that his identification of the defendant was based on what he had observed at the time of the robbery. In the circumstances, the trial court properly found that Bond’s identification testimony was based on what he saw at the time the offense was committed, and there was no error in denying the motion to suppress. State v. McIntosh, 492 S.W.2d 843, 846 (Mo.1973); State v. Todd, 468 S.W.2d 632, 635 [3] (Mo.1971).

The defendant argues that the trial court erred in permitting Deputy Sheriff Charles Whitlow to testify that Coleman had identified the defendant in a lineup. He relies primarily on State v. Degraffenreid, 477 S.W.2d 57, 62-64 [12] (Mo. banc 1972), to sustain this claim of error. The only objection made to any of Whitlow’s testimony was that it was “repetitious, not the best evidence”. This objection was made before the State had propounded any questions concerning Coleman’s identification of the defendant in the lineup. When Whitlow was asked, “[D]o you recall if [Coleman] made any identification, that is if he picked out anybody in that line-up ?”, he was permitted to answer affirmatively without objection, and he was further permitted to testify without objection that Coleman “pickfed] out” the defendant. Appellant’s motion for new trial assigned 11 grounds of error, but no error was asserted with respect to Whitlow’s testimony. A motion to enlarge time and amend the motion for new trial was later filed on defendant’s behalf in which it was asserted that the admission of Whitlow’s testimony was “cummulative [sic], repetitious, and prejudicial”. The State argues that the amendment was untimely; the defendant cites us to present Rule 44.01(a) and insists that his amended motion was timely filed.

The verdict in this cause was received March 20, 1972. Time for filing motion for new trial was extended to May 3. That order would have granted defendant 44 days to file his motion. The trial court quickly recomputed the time and on March 21 shortened the period to April 27, 1972, which allowed 38 days. Defendant’s motion to enlarge time was, he insists, mailed from Kansas City “the 27th or 28th” of April. On oral argument, the trial court, doubting his authority to do so, extended the time to amend the motion to May 1, 1972.

Rule 27.20 requires that a motion for new trial in a criminal case be filed within 10 days after reception of the verdict. It also provides that upon application of the defendant, the trial court may extend that time for an additional 30 days. The computation of time is governed by Rule 31.01, not Rule 44.01(a). The fortieth day fell on Saturday, April 29. The motion was not filed when it was mailed; it was not to be considered filed until it was lodged in the clerk’s office. Ely v. Parsons, 399 S.W.2d 613, 619 (Mo.App.1966); Byers v. Zuspann, 257 S.W.2d 384, 387-388 [2] (Mo.App.1953). The “supplemental” motion was stamped May 1, 1972. This was the forty-second day, the amended or supplemental motion was untimely, and we may not consider it. State v. Tucker, 451 S.W.2d 91, 92 [1-3] (Mo.1970); State v. Loyd, 233 S.W.2d 658, 659 [3] (Mo.1950). In this case, we are dealing with a factual situation much different from the one presented in Degraffenreid, supra, and we are in doubt that the rationale of that case applies here; in any event, the point has not been properly preserved and is not before us. State v. Gant, 490 S.W.2d 46, 49-50 [8] (Mo.1973).

Defendant further argues that he was unconstitutionally penalized for exercising his right to a jury trial. In this connection he dwells on the supposed evils of plea bargaining, and cites us to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and authority from other jurisdictions. His complaint is based on the following record facts: At the time he filed the amended or supplemental motion for new trial, defendant’s counsel filed an affidavit in which he stated that on Friday, March 17, 1972, he asked the prosecuting attorney what punishment the State would recommend if defendant entered a plea of guilty to two charges then pending against the defendant in Jasper County. Counsel was told, according to the affidavit, that if defendant entered a plea of guilty to the charge of armed robbery and to an assault charge also pending, the State would recommend 35 years imprisonment for armed robbery and 15 years imprisonment for assault. If defendant elected to stand trial, the State advised counsel for the defendant that a 99-year sentence would be recommended if defendant were found guilty. As indicated, defendant was found guilty and was sentenced to 99 years imprisonment.

Upon review of the record, we are satisfied there is no merit to this claim of error. Taken as true, defendant’s affidavit indicates only that defendant’s counsel initiated a plea bargaining discussion with the prosecution. There is no indication whatever that the trial court relied on the State’s recommendation in imposing the sentence; what the transcript shows affirmatively is that the trial court carefully considered defendant’s prior conviction for a similar crime; defendant’s counsel was invited to present any mitigating factors and failed to do so. Each case requires an individualized sentencing procedure, and if the sentence is severe, no error of constitutional dimension appears in its imposition. See United States v. Marzette, 485 F.2d 207 [1, 2] (8th Cir. 1973); State v. Smith, 445 S.W.2d 326, 331-332 [5] [6, 7] (Mo.1969).

The defendant’s three final assignments of error may be considered together. Defendant asserts 1) that his motion or application for a change of venue from the 29th Judicial Circuit was improperly denied; 2) that his voir dire examination of the jury panel was unduly limited, and 3) that the trial court erroneously refused to disqualify itself upon defendant’s motion. The application for change of venue and the extent of the voir dire examination were, in the circumstances of this case, matters addressed to the discretion of the trial court, and no abuse of discretion is demonstrated. The motion to disqualify the trial judge was made orally by the defendant himself after the motion to suppress had been heard and evidence on the application for a change of venue had been heard. No notice was given. The trial court did not err in denying the motion. State v. Thost, 328 S.W.2d 36, 39 [5] (Mo.1959).

The judgment is affirmed.

BILLINGS, C. J., and STONE and TITUS, JJ., concur.

FLANIGAN, J., not participating because not a member of the court when the cause was submitted

      . All references to statutes and rules are to RSMo 1969, V.A.M.S. and V.A.M.R.


author: FLANIGAN, Judge.

text:
    HOUSEHOLD FINANCE COMPANY, INCORPORATED, Plaintiff-Appellant, v. Audie WATSON and Mary Watson, Defendants-Respondents.
    No. 9686.
    Missouri Court of Appeals, Springfield District.
    April 3, 1975.

      Charles M. Wesley, Waynesville, for plainti f f-appellant.
    No appearance for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action on a promissory note, tried without a jury. The petition alleged that the two defendants and one Martin L. Aaron made and delivered to plaintiff their note in the principal amount of $2,610.73, payable in 48 monthly installments. A copy of the note was attached to and made a part of the petition. The petition further alleged that plaintiff was the owner and holder of the note; that the note was in default; that by reason of an “acceleration clause” the plaintiff was entitled to the unpaid balance of the principal, accrued interest and reasonable attorney’s fees; that “after allowing all just credits and payments on the note” the unpaid balance and accrued interest amounted to $2,250.28. Judgment was prayed for that amount, together with interest to date of judgment, attorney’s fees and costs.

The answer of the defendants consisted of a general denial.

Plaintiff, a self-described “corporation engaged in the business of financing,” produced only one witness, Harry Enderle, who was senior assistant manager of plaintiff’s office which was located at St. Robert, Missouri. Enderle testified that he had with him the “official records” of plaintiff. Plaintiff’s Exhibit 1 was the note itself and plaintiff’s Exhibit 3 was the original ledger card showing payments which had been made on the note. Both exhibits were received in evidence.

The defendants introduced no evidence.

Neither side invoked Rule 73.01(1) (b), V.A.M.R., to obtain a statement of findings of facts or grounds for decision.

The court entered a judgment dismissing the petition “for failure of plaintiff to make a prima facie case.” The remarks of the court, contained in the transcript, reveal that the basis for the judgment was that the plaintiff produced no evidence that the defendants signed the note. Such basis was wrong. “Unless specifically denied in the pleadings each signature on an instrument is admitted.” § 400.3-307, V.A.M.S. See also Rule 55.23, V.A.M.R. Defendants’ answer, which stated simply that “defendants deny the allegations contained in (each paragraph of) plaintiff’s petition,” did not constitute a “specific” denial of their signatures. Thus execution of the note was confessed. Securities Investment Company v. Hicks, 444 S.W.2d 6, 7[1] (Mo.App.1969) ; Universal Printing Company v. Sayre & Fisher Company, 501 S.W.2d 180, 183[4], (Mo.App.1973).

Section 400.3-307(2), V.A.M.S., provides: “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.”

Plaintiff-appellant, in its brief, makes a sound attack upon the reasoning of the trial court and asks this court to enter judgment for plaintiff in accordance with its prayer. But the matter is not so simple. Indeed, if the trial court reached the right result, but for the wrong reason, this court must affirm. State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842[1] (Mo.App.1971); White v. Smith, 440 S.W.2d 497, 512[21] (Mo.App.1969).

The scope of the appellate review of this non-jury case is defined in Rule 73.01(3), V.A.M.R., under which this court must review the case upon both the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 84.14, V.A.M.R., requires this court to make a final disposition of the case “unless justice otherwise requires.” For reasons to be stated, this court finds that justice requires reversal and remand.

On Exhibit 1, stamped in ink, and contained in a box, is the following legend:

“Household Finance Corporation, Inc.
PAID
Thank You.”

Across the area occupied by the box there is a line of ink, a scrawl, somewhat resembling two n’s. The scrawl does not interfere with the legibility of the stamped legend. To the eye of an untrained examiner it is not apparent whether the scrawl or the stamped legend was first placed upon the note.

According to Enderle, Exhibit 3 showed that the note had not been paid and that the amount of principal and interest due, at the date of trial, was $2,504.15.

Exhibit 1 and Exhibit 3 had been forwarded to Enderle from plaintiff’s office in Michigan City, Indiana. Enderle had no knowledge with respect to the markings on the note, “as to why that had been marked paid and then lined through.” He did testify that if the note had been paid that fact would have been reflected on Exhibit 3, and it was not.

Section 400.3-601, V.A.M.S., reads, in part, as follows:

“(1) The extent of the discharge of any party from liability on an instrument is governed by the sections on
(a) payment or satisfaction (section 400.3-603); or
(b) • . .
(c) cancellation or renunciation (section 400.3-605); or
(d) through (i) . ”.

Exhibit 1 is “an instrument.” § 400.3-102(1) (e), V.A.M.S.; § 400.3104(2)(d), V.A.M.S.

Exhibit 1 bears the legend “Paid.” Payment is an affirmative defense, Rule 55.08, V.A.M.R., and the defendants did not plead payment. However, Exhibit 1 was plaintiff’s exhibit and “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ...” Rule 55.33 (b), V.A.M.R.

On Exhibit 3 the name of Martin L. Aaron, the unsued signer of Exhibit 1, is typed, and an Indiana address appears for him. The names of the two defendants appear thereon in ink, together with their Missouri address. On Exhibit 1 Aaron’s name is listed first and on a line above the names of the defendants. Exhibit 1 labels defendants “co-makers.” The note was executed in Indiana. Referring to Exhibit 1, Enderle said: “This is the note with Martin Aaron as the principal maker and Audie and Mary Watson as co-makers.” It may be, though not implicit in this opinion, that defendants were accommodation makers. “Once the instrument is paid, the liability of the accommodation party is discharged.” Marcus v. Wilson, 16 Ill.App.3d 724, 306 N.E.2d 554, 559[4] (1973).

Section 400.3-603, V.A.M.S., reads in part:

“(1) The liability of any party is discharged to the extent of his payment or satisfaction to the holder .

(2) Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. . . . ”

It seems reasonable to believe that if the defendants themselves had paid Exhibit 1, they would have provided evidence to that effect. But if Exhibit 1 was paid, and Aaron would seem a logical source, defendants might not have had knowledge of that fact.

Exhibit 1 was in the possession of plaintiff. “The maker of a note does not, however, merely by leaving it in the possession of the payee when paying it, lose the right to assert that the note was discharged by the payment.” 11 Am.Jur.2d Bills & Notes § 971, p. 1022. Though pre-UCC cases, cited in Note 56 to § 400.-3-603, V.A.M.S., indicate that a note is presumed unpaid while in the possession of the payee, no such language appears in § 400.3-603 or the UCC Comment thereunder.

Plaintiff is engaged “in the business of financing.” The usual reason for stamping a note “Paid” is payment itself, but here plaintiff offered no explanation for the stamp. It might be argued that Exhibit 3 is consistent with a finding of nonpayment. But unless the scrawl nullifies the stamp on Exhibit 1, the latter conflicts with Exhibit 3. At least one of them is erroneous but this court lacks the information to identify the defective one. Plaintiff, and perhaps plaintiff alone, is in a position to explain the discrepancy, and no explanation appears.

But does the scrawl devitalize the stamp? In 1875 the Supreme Court of Illinois made this statement: “The words stamped on the note by the Cook County National Bank were erased, by having a pen drawn through them before it was presented to Lowenthal, and this, in connection with the fact that the note was presented as a valid subsisting note, we regard as sufficient to overcome any notice of payment that might otherwise have been furnished by the words stamped on the note. Being erased, the reasonable inference would be they had been placed there by mistake; and Pickett’s possession was not, of itself, a circumstance to arouse suspicion that payment had been made.” International Bank v. Bowen, 80 Ill. 541, 546.

But this court is unpersuaded that the scrawl deserves that efficacy. It is the product of an unknown hand, acting at an unknown time, at an unknown place, and for a reason, if any, unknown. It is entitled to no such deference, absent some supportive evidence. It alone should not be dispositive of this appeal. McElroy v. Caldwell, 7 Mo. 587 (1842); Hays v. Odom, 79 Mo.App. 425, 428 (1899); Meffert v. Lawson, 289 Mo. 337, 233 S.W. 31, 38[6] (1921); Hanna v. Parrish, Okl., 317 P.2d 745, 748 (1957); Pueblo Bank & Trust Company v. McMartin, 31 Colo.App. 546, 506 P.2d 759, 762 (1972); Clarendon County, S. C. v. Curtis, 46 F.2d 888, 890 [4—6] (4 Cir. 1931); Cohen v. Kaufman, 89 Cal.App.2d 463, 200 P.2d 834, 836[3 & 4] (1948); In Re Philpott’s Estate, 169 Iowa 555, 151 N.W. 825, 827[7, 8] (Iowa, 1915) ; Fox v. Mitchell, 302 Mich. 201, 4 N.W.2d 518, 521[1] (1942); First National Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1031[3] (Alaska, 1971).

Under § 400.3-605, V.A.M.S., the holder of an instrument may, even without consideration, discharge any party “in any manner apparent on the face of the instrument.” It is true that under that statute “neither cancellation nor renunciation without surrender of the instrument affects the title thereto.”

“A cancellation made unintentionally, or under mistake, or without the authority of the holder, is inoperative.” 11 Am.Jur.2d Bills & Notes § 906, p. 951. But cancellation and payment are alternative methods of discharging a party from liability on an instrument. § 400.3-601, V. A.M.S. Cancellation does not require consideration, § 400.3-605, and there is nothing in § 400.3-603, with regard to payment, which requires cancellation.

If in fact Exhibit 1 has been paid, plaintiff’s cause should fail. If Exhibit 1 has not been paid, and if the stamp thereon was unintentional or under a mistake or without the authority of plaintiff, a different result is due.

Although this court has a duty to dispose finally of a case before it on appeal, if possible, “this presupposes a record and evidence upon which we can rule with some degree of confidence in the reasonableness, fairness and accuracy of our final conclusion.” In Re I.M.J., 428 S.W.2d 18, 22[5] (Mo.App.1968); Phelps v. Watson-Stillman Company, 365 Mo. 1124, 1132, 293 S.W.2d 429, 435 (1956).

“It is sufficient to state that in. the present posture of the record, the theories of the parties are not completely articulated and this court is left with the alternative of deciding the case on the the basis of various presumptions and the burden of proof. ... In other words, the burden of proof and the indicated presumptions may or may not result in assumptions plainly contrary to the fact.” Saville v. Bradshaw, 359 S.W.2d 676, 679 (Mo.1962). “In a situation such as the present one, where it is impossible to render a final judgment because the principal issue was not adequately developed below, and the record indicates that the necessary evidence may be available, a wise exercise of our discretion requires that the judgment be reversed and that the case be remanded for a new trial.” In re M— P- S-, 342 S.W.2d 277, 283[12] (Mo.App.1961).

This court has the power to remand the case for a new trial even if the plaintiff failed to make a submissible case, where “all pertinent factual information was not presented upon trial.” Hood v. M. F. A. Mutual Insurance Company, 379 S.W.2d 806, 812[12] (Mo.App.1964); Bolhofner v. Jones, 482 S.W.2d 80, 85[7] (Mo.App.1972).

Accordingly, the judgment dismissing plaintiff’s petition is reversed, and the cause is remanded for new trial.

All concur.

      .See UCC Comment 2 under § 400.3-307, V.A.M.S., which reads in part: “Once signatures are proved or admitted, a holder makes out his case by mere production of the instrument, and is entitled to recover in the absence of any further evidence. The defendant has the burden of establishing any and all defenses, not only in the first instance but by a preponderance of the total evidence.”
      In Anderson, Uniform Commercial Code, 2d Edition, § 3-307:9, p. 895, it is said: “The defendant has the burden of proof of payment, as soon as the instrument is produced and would appear on. its face to be unpaid.” (Emphasis added).
      “If a note bears on its face evidence of payment, the burden of the defendant to prove payment is satisfied, and the burden then is on the plaintiff to explain the circumstances and to show that in fact the note has not been paid.” 12 Am.Jur.2d Bills & Notes § 1220, p. 250.

      . Indiana adopted the Uniform Commercial Code (Laws Indiana 1963, § 317) effective July 1, 1964.

      . The following language appears in the UCC Comment under § 400.3-601, V.A.M.S. (Vol. 20B V.A.M.S. pp. 240-241) : “Under Section 3 — 415 on accommodation parties an aecom-modation maker or acceptor, although he is primarily liable on the instrument in the sense that he is obligated to pay it without recourse upon another, has himself a right of recourse against the accommodated payee, and his reacquisition or discharge leaves the accommodated party liable to him. The accommodated payee, although he is not primarily liable to others, has no right of action or recourse against the accommodation maker, and his reacquisition or discharge may discharge all parties.” See also 11 Am.Jur.2d Bills & Notes § 903, p. 1017.

      . Aside from the scrawl on Exhibit 1, the inconsistency between Exhibit 1 and Exhibit 3 is a subject dealt with in Steele v. Woods, 327 S.W.2d 187, 197[14] (Mo.1959) : “Having put the record in evidence, plaintiff could not impeach it as such, but she could contradict the facts which were related in such record. But it is suggested that where there are statements favorable to the defendant as to the positive existence of certain affirmative facts which call for a denial or explanation, and the plaintiff is in a position and has opportunity to make such denial or explanation and fails to do so, then the existence of such facts must be assumed to be true in assessing the sufficiency of the evidence. . .