author: SOMERVILLE, Judge.

text:
    William H. LICHTE et al., Plaintiffs-Respondents, v. Walter F. HEIDLAGE et al., Defendants-Appellants.
    No. KCD 27184.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    J. Turner Jones, George D. Nichols, Jones, Knight & Ford, Columbia, for defendants-appellants, Walter F. Heidlage and Sarah Heidlage.
    Robert L. Roper, Jr., Rhonda Thomas, Columbia, for defendants-appellants, Arlene Ghiron, John Epple, Jr., Victor N. Lambeth, Marjorie J. Pinkerton, Tom Atkins, individually and in their capacity as members of the Board of Adjustment of the City of Columbia, Missouri, Raymond A. Beck, individually and as Director of the Department of Public Works of the City of Columbia, Missouri, and the City of Columbia, Missouri, a Municipal Corporation.
    Raymond C. Lewis, Jr., Dale C. Doerhoff, Smith, Lewis & Rogers, Columbia, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This case involves an appeal from a judgment rendered by the Circuit Court of Boone County, Missouri, in a certiorari proceeding reviewing a decision of the Board of Adjustment of the City of Columbia, Missouri. Genetically speaking, it is a zoning case involving a confrontation between property owners seeking to preserve the integrity of a single family residential area and property owners claiming a nonconforming use.

The Board of Adjustment, at the conclusion of a hearing conducted pursuant to Section 89.090, RSMo 1969, held that Walter F. Heidlage and Sarah Heidlage, appellant property owners, were entitled to operate a mobile home park on a six acre tract of land owned by them within the corporate limits of the City of Columbia, Missouri, which was permanently zoned for single family residential use. Its decision apparently rested on the proposition that appellant property owners, on the theory of a nonconforming use, had the right to maintain and operate the mobile home park on the six acre tract. The circuit court entered judgment holding the decision of the Board of Adjustment to be “illegal” because appellant property owners had failed to comply with Section 19.400(4) of the Ordinances of the City of Columbia, to-wit: “(4) CERTIFICATE OF OCCUPANCY FOR A NON-CONFORMING USE: A certificate of occupancy shall be required for all non-conforming uses. Application for certificate of occupancy for non-conforming uses shall be filed within twelve (12) months from the effective date of this article, accompanied by affidavits of proof that such non-conforming use was not established in violation of this article.”

Counsel on both sides have made a prodigious effort to advance their respective positions on appeal. Nevertheless, this court concludes that expounding on all the issues raised is unnecessary in order to dispose of the case.

Before outlining certain explicative facts, this court acknowledges that the scope of judicial review of the decision of the Board of Adjustment is tightly circumscribed. Judicial review of the Board of Adjustment’s decision, at both the circuit and appellate levels, is limited to determining whether said decision was (1) authorized by law and (2) supported by competent and substantial evidence upon the whole record. Mo.Const. Art. V, Sec. 22; Rosedale-Skinker Improvement Assn. v. Board of Adjustment, 425 S.W.2d 929, 936 (Mo. banc 1968); Stockwell v. Board of Zoning Adjust. of Kansas City, 434 S.W.2d 785, 789 (Mo.App.1968), and Brown v. Board of Adjustment, 469 S.W.2d 844, 847 (Mo.App.1971).

Turning now to certain facts deemed controlling, the record discloses that the six acre tract around which this controversy swirls was purchased by the Heidlages in 1957. When purchased, it was outside the corporate limits of the City of Columbia. However, in October of 1969 the six acre tract was part of a larger tract which was annexed and brought into the corporate limits of the City of Columbia. On June 1, 1970, the six acre tract was permanently zoned R-l (single family residential). Prior to annexation, and at all times subsequent thereto, it stands undisputed that the six acre tract contained a single family dwelling occupied by the Heidlages as their personal residence and, in addition, they maintained “four rental trailers” thereon. Continuation of the “four rental trailers” by the Heidlages is not disputed. In sharp dispute, however, is the right of the Heid-lages to operate a mobile home park consisting of seven additional trailer sites on the six acre tract.

Subsequent to annexation of the six acre tract, employees from the office of the Director of Public Works of the City of Columbia, with respect to the newly annexed area, “surveyed uses to the best of [their] ability and then did issue occupancy permits based on useage of lands and buildings at the time of annexation.” Accordingly, what was designated a Certificate of Occupancy, same bearing the date of March 16, 1970, was issued to the Heidlages. The referred to Certificate of Occupancy was a printed form containing blank spaces which were to be completed in response to certain printed queries therein contained. The blank spaces were filled in by a building inspector after making a survey of the six acre tract as heretofore described, and the Certificate of Occupancy was issued to the Heidlages under his signature. In the blank space following the printed query “Exact Description”, the building inspector wrote in “4-trailers . . . 15 x 34 workshop . . Survey made for additional trailers”. In the blank space following the printed query “Present Use”, the building inspector wrote in “Single family Resd”. Insofar as here pertinent, the following was also printed at the bottom of the referred to Certificate of Occupancy, “The above occupancy or use thereof is hereby authorized.” and “NOTICE: This use must not be changed to any other use without a new certificate of occupancy from the Public Works Department, nor enlarged, altered nor reconstructed contrary to the Zoning Ordinance.”

The trial court obviously concluded that the only “use” referred to in or authorized by the premature Certificate of Occupancy was for single family residential purposes. Such being the case, the referred to Certificate of Occupancy issued to the Heidlages did not authorize them to use the six acre tract for a mobile home park. In view of Section 19.400(4) of the Ordinances of the City of Columbia, supra, it was incumbent upon the Heidlages to timely secure a Certificate of Occupancy for any nonconforming use claimed by them and this they failed to do. Consequently the trial court properly held that the Heidlages’ failure to timely apply for and obtain a Certificate of Occupancy to use the six acre tract for purposes of a mobile home park as a nonconforming use, as required by Section 19.-400(4) of the Ordinances of the City of Columbia, supra, rendered the decision of the Board of Adjustment “illegal” because it subverted the positive requirement of the ordinance.

Appellants have not questioned the validity of Section 19.400(4) of the Ordinances of the City of Columbia, supra. Therefore, this court expressly refrains from passing judgment on its validity and, for the limited purpose of this appeal, applies the ordinance as written. Parenthetically, however, the legal propriety of a similar ordinance provision was discussed in Braun v. McGillian, 180 Misc. 711, 40 N.Y.S.2d 791 (Sup.Ct.1943). Therein, the court (l. c. 792) held: “The provision of the zoning ordinance requiring application for a certificate of occupancy describing the element of nonconforming use was a reasonable regulation of the right to continue a nonconforming use. It determined and defined the nonconforming use at a time when the facts were readily ascertainable. If the facts warranted it, the certificate of occupancy could not be refused. If the facts were in dispute, that was the time to have it judicially determined what the true facts were.”

Evidence bearing upon the Heidlages’ claim of a nonconforming use of the six acre tract for purposes of a mobile home park at the time the zoning ordinance became effective (June 1, 1970) was in sharp dispute. By their own admission, two-thirds of the expenses which they claim were expended in development of the controversial mobile home park on the six acre tract were incurred subsequent to the date the tract was zoned for single family residential use. Moreover, the nature and purpose to be served by improvements made prior to the effective zoning date were fraught with controversy. Chronologically, introduction of this controversial and disputed evidence did not occur until June 12, 1973, the date the Board of Adjustment held its hearing. Thus, as noted in Braun v. McGillian, supra, one of the basic purposes justifying the enactment of ordinances comparable to Section 19.400(4) of the Ordinance of the City of Columbia, supra, was substantially undercut. In City of Monett, Barry County v. Buchanan, 411 S.W.2d 108, 116 (Mo.1967) the court noted that “one of the primary purposes of zoning is to strictly limit and eventually eliminate all nonconforming uses.” The ordinance section relied on by the trial court was geared to effectuate exactly that purpose.

The Heidlages, although refusing to concede that they failed to comply with Section 19.400(4) of the Ordinances of the City of Columbia, supra, contend, notwithstanding noncompliance therewith, that the judgment rendered by the trial court should be reversed because the City of Columbia, and the surrounding property owners who initiated the certiorari proceeding, are both “estopped” to deny their right to maintain a mobile home park on the six acre tract. The Heidlages attempt to validate their theory of estoppel by claiming “reliance” upon “statements and assurances” made to them by officials of the City of Columbia and surrounding property owners. In order to put this contention in proper perspective, it appears both appropriate and helpful to spell out the alignment of the various parties. The surrounding property owners and a subdivision improvement association were plaintiffs in the certiorari proceeding below, and the Heidlages, the individual members of the Board of Adjustment of the City of Columbia, the Director of the Department of Public Works of the City of Columbia, and the City of Columbia, a municipal corporation, were defendants. On appeal, defendants below are the appellants and plaintiffs below are the respondents. The City of Columbia, contrary to the Heidlag-es’ present contention, did not deny them the right to maintain a mobile home park on the six acre tract. Exactly the opposite occurred since the Board of Adjustment ruled that they could do so. The theory of estoppel urged by the Heidlages is more correctly expressed as follows: Statements and assurances by officials of the City of Columbia may be relied upon to estop the surrounding property owners from asserting the illegality of the decision handed down by the Board of Adjustment, as well as statements and assurances by the surrounding property owners themselves. The bifurcated theory of estoppel advanced by the Heidlages will hereinafter be discussed in the sense mentioned.

Can statements and assurances, con-cededly made by officials of the City of Columbia to the Heidlages, constitute a basis for holding that the surrounding property owners are estopped to assert the “illegality” of the Board of Adjustment’s decision? Although the legal issue posed by this question has never been specifically addressed at the appellate level in this state, in a limited number of instances in other jurisdictions encountering substantially the same question, the courts facing the question have consistently ruled directly opposite to the position taken by the Heid-lages. Board of Public Utilities v. New Orleans Ry. & Light Co., 145 La. 308, 82 So. 280, 285 (1919); Wright v. De Fatta, 129 So.2d 614, 619 (La.App.1961); Boyd v. Donelon, 193 So.2d 291, 297 (La.App.1966), and Frankel v. C. Burwell, Inc., 94 N.J.Super. 53, 226 A.2d 748, 752 (1967). Although the cases just cited do not elucidate the underlying legal rationale for holding that the conduct of city officials cannot form a basis for estopping the assertion of rights by aggrieved private parties, they are nevertheless predicated upon sound logic. Estop-pel is rooted in equitable principles and it would be unconscionable to hold that aggrieved private parties could be prejudiced by the conduct of city officials with whom they were not in privity. Any other result would violate the concept of privity inherent in the doctrine of estoppel.

The record fails to support the remaining aspect of the Heidlages* bifurcated theory of estoppel. At the hearing before the Board of Adjustment, counsel for the Heidlages stated, as a matter of record, that assurances made by officials of the City of Columbia to his clients that they could proceed with contemplated plans to construct a mobile home park on the six acre tract constituted the basis for their theory of estoppel. Moreover, Walter Heid-lage’s testimony disclosed that he relied solely on assurances made by officials of the City of Columbia with respect to his contemplated and partially executed plan to construct a mobile home park. The record fails to disclose any affirmative conduct on the part of the surrounding property owners to support the claimed estoppel. Nor does the record support a finding that the surrounding property owners tacitly stood by and allowed the Heidlages to proceed with their controversial plans for a mobile home park after acquisition of actual knowledge thereof. The record does, however, clearly disclose that the surrounding property owners opposed the activities engaged in by the Heidlages with respect to the proposed mobile home park as soon as they acquired actual knowledge of what was taking place. As stated in 31 C.J.S. Estoppel § 97, p. 513, with reference to application of the doctrine of estoppel in corresponding property matters, “[t]here can be no estoppel where there is nothing to charge the party sought to be estopped with actual knowledge of the improvements, and an estoppel will not arise where the party claiming the estoppel has not relied on the other’s conduct.” Like principles infuse the general doctrine of estoppel prevailing in this state. Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d 533, 536 (1931), and Delta Realty Co. v. Hunter, 347 Mo. 1108, 152 S.W.2d 45 (1941).

After carefully reviewing the record this court concludes that the decision rendered by the Board of Adjustment of the City of Columbia was illegal and, accordingly, the judgment entered by the Circuit Court of Boone County, Missouri, reversing said decision is affirmed.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    INDEX STORE FIXTURE COMPANY, Respondent, v. The FARMERS’ TRUST COMPANY, Appellant.
    No. KCD 27216.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      William C. Paxton, Independence, for appellant.
    Royce J. Estes, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The issue here is which of competing secured claims has priority. The plaintiff filed motion for summary judgment, and the case was submitted to the trial court on a stipulation of facts. Judgment was entered for plaintiff on the issue of liability. Pursuant to an order of the court making that interlocutory order final for purposes of appeal, defendant has taken this appeal.

On August 21, 1968, plaintiff sold certain restaurant equipment to Kenemore for a time sale price of $7,162.34, which it financed under a Retail Time Contract (Purchase Money Mortgage). Kenemore made a downpayment of $2,000, leaving a time balance of $5,162.34, for which he gave his note. Plaintiff assigned the indebtedness to Westport Bank with recourse and thereafter filed a financing statement with the Secretary of State on August 23, 1968, and with the Recorder of Deeds of Jackson County on August 27, 1968.

On March 17, 1969, defendant made an advance to Kenemore under a Security Agreement of that date, for which it took as collateral the same restaurant equipment. Defendant filed its financing statement with the Recorder of Deeds on March 20,1969, and with the Secretary of State on July 30, 1969.

Thereafter on January 9, 1970, plaintiff sold $4,202.83 additional restaurant equipment to Kenemore. By that time the principal indebtedness on the 1968 transaction between these parties had been reduced to $2,655.50. Kenemore executed a new Retail Time Contract (Purchase Money Mortgage), and a new note in the total sum of $9,063.00, which included the balance due on the old indebtedness. The new 1970 note and Agreement was then assigned to Westport Bank with recourse and plaintiff filed a new financing statement with the Secretary of State on January 12,1970, and with the Recorder of Deeds on January 13, 1970. Westport Bank posted a final payment on the 1968 note, showing it paid down to zero, and rebated $212.44 unused finance charge.

On April 22, 1971, Westport Bank notified plaintiff of default by Kenemore and invoked the recourse provision of the 1970 note. Plaintiff paid Westport Bank the then existing balance due on the note of $5,665.21, and took a reassignment. A bankruptcy petition by Kenemore quickly followed on April 30,1971. Defendant took possession of a quantity of the collaterized equipment on June 3, 1971, and plaintiff learned of this at the first meeting of creditors in the bankruptcy proceeding.

Plaintiff then made demand on November 16, 1971, for delivery to it of all the equipment so possessed by defendant. Defendant, however, declined to comply, taking the position that its security interest in the 1968 collateral was superior to that of the plaintiff. This suit followed in which plaintiff prayed for the value of the disputed collateral, interest thereon, attorney fees and costs.

On this appeal defendant takes the position that plaintiff was not entitled to summary judgment because it failed to show its right to recover by unassailable proof, and defendant claims that to the contrary summary judgment should have been entered for it. Its points in support of those conclusions can be summarized as follows: (1) that plaintiff’s security interest of August 21, 1968, terminated on January 9, 1970, thereby opening the way for defendant’s 1969 security interest to become senior in priority; and (2) plaintiff’s 1970 transaction was usurious, and its 1970 security interest is therefore void.

I.

Defendant does not deny that when it advanced its funds to Kenemore in 1969, its security interest was junior at that time to that of plaintiff. However it contends that the situation changed radically at the time of the January 1970 transaction between plaintiff and Kenemore. Defendant says that transaction resulted in a termination and release of plaintiff’s 1968 security interest, because of the following factors: 1) the 1968 transaction was one for a single sale, and in this connection defendant emphasizes that plaintiff’s 1968 Retail Time Contract (Purchase Money Mortgage) contained no provision covering future advances; 2) as part of the 1970 transaction Westport Bank applied a portion of the funds made available to Kenemore to pay down to zero the amount owed plaintiff by Kenemore under the 1968 transaction; 3) in connection with the 1970 transaction plaintiff and Kenemore entered into a new security agreement, Kenemore gave a new note, and plaintiff filed a new financing statement; and 4) as part of the 1970 transaction there is a covenant by the mortgagor that the mortgagor lawfully possessed the security listed “free from all encumbrances.” While defendant makes no claim to any of the new equipment sold by plaintiff to Kenemore in 1970, defendant does insist that after the 1970 transaction it did have the first and prior security interest on all of the equipment sold by plaintiff in 1968.

This question of priority between conflicting security interests is controlled by the Uniform Commercial Code, § 400.9-312(5)(a). However, that section interrelates and must be read in connection with other cognate sections of Article 9 in order to be properly understood.

The general pattern for the validity of a security interest under the Uniform Commercial Code requires both “attachment” and “perfection.” § 400.9-303. Attachment occurs when a creditor extends value and enters into an agreement for the debtor to give a security interest to the creditor in some property of the debtor. § 400.9-204(1). Perfection is accomplished (with exceptions not here pertinent) upon filing of a financing statement. § 400.9-302. It is immaterial which of these steps occurs first. As stated in § 400.9 — 402, “[a] financing statement may be filed before a security agreement is made or a security interest otherwise attaches.” Similarly the Uniform Commercial Code Comment to § 400.-9-303 states, “[i]f the steps for perfection have been taken in advance (as when the secured party files a financing statement before giving value or before the debtor acquires rights in the collateral), then the interest is perfected automatically when it attaches.”

In the instant case, both parties have fully perfected their respective security interest. The issue is therefore sharply presented as to which of these security interests shall prevail over the other. Section 400.9-312(5)(a) has for its purpose to provide this answer. That section states that except in cases governed by other rules (not here pertinent) the priority shall be determined “in the order of filing * * * regardless of which security interest attached first under section 400.9-204(1) and whether it attached before or after filing.” Applying that rule to the facts of this case, the 1968 filing by plaintiff has priority over the 1969 filing by defendant, and this is true even though the note and security agreement due and outstanding to plaintiff from and after January 1970 were dated subsequent to defendant’s extension of credit and its filing. Any possible doubt as to this interpretation of § 400.9-312(5)(a) is removed by the following Uniform Commercial Code Comment to that section:

“The operation of subsections (5) and (6) is illustrated by the following examples.
“Example 1. A files against X (debt- or) on February 1. B files against X on March 1. B makes a non-purchase money advance against certain collateral on April 1. A makes an advance against the same collateral on May 1. A has priority even though B’s advance was made earlier and was perfected when made. It makes no difference whether or not A knew of B’s interest when he made his advance.
“The problem stated in the example is peculiar to a notice filing system under which filing may be made before the security interest attaches (see Section 9-402). The Uniform Trust Receipts Act, which first introduced such a filing system, contained no hint of a solution and ease law under it has been unpredictable. This Article follows several of the accounts receivable statutes in determining priority by order of filing. The justification for the rule lies in the necessity of protecting the filing system — that is, of allowing the secured party who has first filed to make subsequent advances without each time having, as a condition of protection, to check for filings later than his.”

Defendant resists the foregoing conclusion, emphasizing that plaintiff’s 1968 security agreement contains no provision to cover future advances, as is specifically authorized by the provisions of § 400.9-204(5). It relies very heavily upon Coin-O-Matic Service Co. v. Rhode Island Hospital Trust Co., 3 UCC Reporting Service 1112 (R.I.Super.Ct.1966) and upon In Re Hagler, 10 UCC Reporting Service 1285 (U.S.D.C.Tenn.1972) which follows Coin-O-Matic. The Coin-O-Matic opinion refused to allow a pri- or filing to prevail over a subsequent creditor, where the security interest of the first creditor did not contain a “future advance” clause. The court in that case reasoned that to rule otherwise would be contrary to public policy in that it would make it perilous for any second creditor to ever advance money to a debtor who already had any financing statement on file; that this in effect would result in giving the first creditor an economic monopolistic throttlehold upon the debtor; and that the first creditor must be held not to have such a right unless he specifically provided for it by use of a future advance provision in the security agreement.

Nevertheless, upon restudy of this whole problem, the Uniform Commercial Code Permanent Editorial Board concluded that no change was required in the Code to resolve the conflict which had arisen in future-advance cases, and it rejected the view taken by Coin-O-Matic and urged in this case by defendant. Reference is made to that study in James Talcott, Inc. v. Franklin Nat. Bank of Minneapolis, 292 Minn. 277, 194 N.W.2d 775, l. c. 784 (1972), and the opinion in that case summarizes the overwhelming majority view on this subject as follows:

“Even where the parties originally contemplate a single debt, secured by a single item of property or a single group of items, the secured party and the debtor may enter into further transactions whereby the debtor obtains additional credit and the secured party is granted more security. The validity of such arrangements as against creditors, trustees in bankruptcy, and other secured parties has been widely recognized by many courts. See, DuBay v. Williams, 417 F.2d 1277 (9 Cir. 1969); Grain Merchants of Indiana, Inc. v. Union Bank & Sav. Co., 408 F.2d 209 (7 Cir.), certiorari denied sub nom. France v. Union Bank & Sav. Co., 396 U.S. 827, 90 S.Ct. 75, 24 L.Ed.2d 78 (1969); Rosenberg v. Rudnick, 262 F.Supp. 635 (D.Mass.1967).
“Using future-advance clauses and using after-acquired property clauses in the original security agreement are not the only means by which perfected security interests can be obtained in subsequently contracted obligations or in goods the debtor may later come to own. There is nothing exclusive about § 336.9-204(3, 5). Parties may use future-advance and after-acquired clauses, and they are a great convenience. But, if they are not used, there is nothing in the code which prevents the parties from accomplishing the same result by entering into one or more additional security agreements.
“Upon a review of decision law in other jurisdictions it would appear that there is a difference of opinion as to perfection and priority of a later advance where it was not made pursuant to the original security agreement but pursuant to a later agreement which may or may not have satisfied the requirements of the code as to security agreements. The better view holds that, where originally a security agreement is executed, an indebtedness created, and a financing statement describing the collateral filed, followed at a later date by another advance made pursuant to a subsequent security agreement covering the same collateral, the lender has a perfected security interest in the collateral not only for the original debt but also for the later advance. The instant matter involves a parallel situation. See, In re Rivet, 299 F.Supp. 374 (E.D.Mich.1969).

In accord: In re Rivet, 299 F.Supp. 374 (D.C.Mich.1969); Mid-Eastern Electronics, Inc. v. First Nat. Bank of So. Md., 455 F.2d 141 (4 Cir. 1970); Household Finance Corporation v. Bank Commissioner of Md., 248 Md. 233, 235 A.2d 732 (1967); Cantrill Construction Co. v. Carter, 418 F.2d 705 (6 Cir. 1969).

Defendant states and lays much stress in its brief upon the alleged fact that the 1968 Retail Time Contract (Purchase Money Mortgage) and note were returned to Kene-more. The transcript on appeal does not support that statement. Even if it did, such fact would be immaterial. In re Rivet, supra, and Mid-Eastern Electronics, Inc. v. First Nat. Bank of So. Md., supra.

Defendant also states as a point in its brief that the trial court erred “by failing to hold plaintiff-respondent seller to its covenant contained on the back of the ‘Retail Time Contract (Purchase Money Mortgage)’ of January 9, 1970, that plaintiff-respondent was lawfully possessed of all said goods purportedly sold and that the same were free of all encumbrances and that plaintiff-respondent agreed to warrant and defend the same to defendant-appellant against all persons who had lawful claims * * The instrument referred to completely fails to give any support to the quoted point. The contract mentioned was one between Kenemore, named as “Buyer & Mortgagor” and plaintiff, named as “seller and mortgagee.” The covenant, referred to by defendant in its point on appeal quoted above, appears in compact print on the reverse side of the security agreement and states that “the mortgagor herein does hereby covenant to and with the same mortgagee that said mortgagor is lawfully possessed of the sold goods and chattels, that the same are free from all encumbrances, and agrees to warrant and defend the same to the mortgagee against the lawful claims and demands of all persons.” (emphasis added). This covenant plainly runs from Kenemore to plaintiff; and not from plaintiff to defendant, as defendant now asserts. Moreover, the security being given by Kenemore to plaintiff was in fact not subject to any superior claim, so that Kenemore was not making any false promise or misrepresentation.

In summary, the Uniform Commercial Code controls and gives priority to plaintiff’s security interest, for the reason that plaintiff’s financing statement was filed prior in time to that of the defendant.

II.

Defendant’s contention that plaintiff’s extension of credit in 1970 was usurious rests on the following steps: 1) defendant starts by showing that the interest charge in plaintiff’s 1970 transaction was in excess of 8%, and defendant says that interest can be justified only by reliance on the Retail Credit Sales Act, § 408.250 et seq.; 2) defendant proceeds to argue that with respect to the balance due on the 1968 transaction, plaintiff in effect lent Kenemore enough money to pay that off to Westport Bank, thereby substituting a straight loan for what had previously been a purchase money obligation; 3) defendant concludes by saying that the Retail Credit Sales Act does not cover straight loans, and that since the interest charge on the 1970 transaction exceeded 8%, the portion pertaining to the 1968 balance is usurious and void.

The fatal weakness in the argument under consideration is that it seeks artificially to change the nature of Kenemore’s 1968 obligation as of January 1970. The sale of additional equipment by plaintiff to Kene-more in January, 1970, did not in any realistic way change the character of the balance due from the 1968 transaction. The parties in 1970 simply agreed to refinance the 1968 balance and consolidate it with the additional purchase money obligation then assumed by Kenemore. That refinancing did not extinguish the original 1968 obligation. This result has been reached under the Uniform Commercial Code in parallel factual situations. In re Rivet, supra, and Mid-Eastern Electronics, Inc. v. First Nat. Bank of So. Md., supra. The same reasoning was followed by this court prior to adoption of the Uniform Commercial Code. Bank of Ionia v. Bank of Eldon, 865 S.W.2d 770 (Mo.App.1963). The rewritten balance of the 1968 transaction, incorporated in the 1970 note, retained its original nature as a “retail time transaction” and remained within the scope of the Retail Credit Sales Act.

Defendant in its argument emphasizes the fact that the 1968 obligation had been assigned to Westport Bank and that the bank held that obligation at the time plaintiff extended new credit to Kenemore in 1970. This attempt to separate the interests of plaintiff and Westport Bank is not persuasive. The 1970 transaction was also assigned to Westport Bank just as soon as consummated between plaintiff and Kene-more. Furthermore, plaintiff made each of those assignments with recourse, thereby continuing to be tied to both transactions. It is not necessary to pursue any inquiry as to whether it would make any difference if those facts were otherwise. Under the circumstances actually present here, the 1968 and 1970 transactions plainly constituted a continuous and integrated course of dealing.

III.

Defendant argues strenuously that summary judgment in this case should not have been entered in favor of plaintiff because plaintiff failed to prove its right to recovery “by unassailable proof.” In making this argument defendant has the high hurdle to overcome that the case was submitted for decision upon an agreed stipulation of facts. Seeking to surmount that hurdle, defendant states in its brief: “[njowhere did Defendant-Appellant stipulate that there were no material facts not contained in the stipulation or that all the facts stipulated were clear and self defining as written. There very definitely could be further evidence that would clarify the meaning of the fact stipulation s ⅜ s.”

If there was in fact further material evidence bearing upon the issues of this ease which was not set forth in the stipulation, then it was the obligation of defendant to bring those further facts to the attention of the court by affidavit or other appropriate means. Failing to do so, it correctly suffered entry of summary judgment against it. Kroh Brothers Dev. Co. v. State Line Eighty-Nine, Inc., 506 S.W.2d 4, l. c. 12 (Mo.App.1974). Even though there is a difference of opinion between the parties as to the legal effect of the documents stipulated, and even though that difference of interpretation may be honestly debatable, that difference raises simply an issue of law which may be and was properly determined by the summary judgment procedure. Moore-Harris Abstract Co. v. Estes, 495 S.W.2d 485 (Mo.App.1973).

IV.

For its final point, defendant contends that summary judgment should have been entered in its favor. What has already been said fully answers this contention.

Affirmed.

All concur.

      . All statutory references are to RSMo 1969.

      . No point is raised by plaintiff concerning the standing of defendant to raise this defense of usury, and the question need not be pursued for the purposes of this case. In this connection, see the Annotation “Right of attachment or judgment creditor, or officer standing in his shoes, to attack older lien or security interest for usury.” 70 A.L.R.2d 1409, and Missouri cases there collected.


author: SWOFFORD, Judge.

text:
    F. C. PREUITT CONSTRUCTION CO., INC., Respondent, v. Roy DOTY and Charles Soetaert d/b/a Overland Excavating Company, Appellants.
    No. KCD 27341.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Charles A. Lewis, Connaughton & Lewis, Kansas City, for appellants.

      Charles R. Svoboda, Kansas City, for respondent; Fred A. Murdock, Kansas City, of counsel, on brief.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an action for damages based upon an alleged breach of an oral contract. The respondent (hereafter Preuitt) was the general contractor for the construction of an addition to the Ervin Junior High School, Raytown, Missouri, and the oral contract sued upon covered certain excavation, grading and other earth work to be done by the appellants (hereafter Overland) as subcontractor on said construction. Overland filed a counterclaim seeking the sum of $4,242.58 for work based upon quantum meruit which it was alleged had been done on the job but not paid by Preuitt. A jury was waived and the evidence was presented to the court below sitting as the trier of facts. That court made extensive findings of fact and conclusions of law, and entered judgment in favor of Preuitt in the amount of $4,757.67 on its petition, and denied Overland any recovery on the counterclaim. After an unsuccessful motion to amend judgment, Overland appealed to this court.

Overland raises two assignments of error. The first of these (in summary) is that the court erred in failing to sustain Overland’s motion for directed verdict (sic) because: A) Overland’s objection to and motion to strike the evidence of Preuitt as to Overland’s specific contractual obligations, as a subcontractor, under the prime written construction contract between Preuitt and the school district, should have been sustained since such prime contract was not in evidence nor was any other substantive and admissible evidence offered by Preuitt to establish any obligation of Overland to perform such specific excavation services; and B) there was no proof that the charges paid by Preuitt to others to complete the originally required excavation work were reasonable, and thus there was a failure of proof as to monetary damages.

Overland’s second assignment of error (in summary) is that the court erred in denying Overland recovery on the counterclaim based upon work done but not paid for; that quantum meruit was pleaded, proved and conceded, and Overland was entitled to a judgment for $4,242.58 on the counterclaim.

Since this is an appeal of a court-tried case, the review is upon “both the law and the evidence as in suits of an equitable nature”; due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses; and, the findings and judgment of the court below will not be disturbed if supported by substantial and credible evidence. Rule 73.01.

The transcript of evidence, record and exhibits entered below, and the authorities and legal arguments of counsel, have been carefully reviewed and independent legal research made. It is concluded that the judgment below be affirmed.

A summary of the facts necessary to the resolution of this appeal is as follows:

In 1965, Preuitt was a general contractor engaged primarily in the construction of commercial buildings and schools. It had constructed the original Ervin Junior High School in Raytown, Missouri and the first addition thereto, prior to 1965, as general contractor. In each of those jobs Overland had done the excavation and dirt work as a subcontractor at a fixed price, and not upon the basis of an hourly charge for machinery and equipment.

On February 4,1965, Preuitt was the low bidder on a second addition to be constructed to the school and was awarded the general contract at a fixed price of approximately $1.5 million dollars.

Prior to submitting its bid on the second addition to Ervin school, Preuitt arrived at its bid by preparing a “bid estimate sheet” which separated the various classifications of work to be performed on the job, some of which was to be performed by Preuitt and the remainder to be subcontracted by Preuitt to others. For the work to be performed by subcontractors, Preuitt requested them to submit to it their bids in accordance with the plans and specifications at a fixed price. Preuitt then used the low bid on each category to figure the overall total bid price to be submitted.

Knowing of Overland’s familiarity with the job site, location and nature of the work, sometime prior to February 4, 1965 Preuitt requested Overland, by telephone, to bid on the site grading and excavation work on the Ervin second addition, according to the plans and specifications. On February 4, 1965, Overland advised Preuitt over the telephone that it bid $18,412.00 on a base bid, $987.00 for additional work covered in Alternate # 6, and $510.00 for additional work covered in Alternate # 7, a total bid of $19,909.00 for the dirt work. Mr. Preuitt testified that it was a custom and practice in this area to solicit and receive bids from subcontractors to use in figuring a general contractor’s bid on the prime contract, by telephone. It has been Overland’s position throughout that any work undertaken or done on this job was not a fixed price contract but rather upon an hourly charge.

Preuitt used the Overland figures and incorporated them in its bid. On February 4,1965, when Preuitt was awarded the contract, Mr. Preuitt advised Overland over the telephone of this fact and that its bid for the dirt work was accepted. On February 16, 1965, Mr. Preuitt wrote Overland a letter, which his secretary testified was mailed to Overland that day. In pertinent part, this letter states:

“This is your authorization to proceed with items of dirt work on the Ervin Junior High School, as per your telephoned quotation of February 4, 1965, all according to plans and specifications prepared by Hollis & Miller, Architect.
The Board accepted alternates 6 and 7 which add to your base bid of $18,412.00, the sum of $1497.00 (alt. # 6 $987.00 & alt. # 7 $510.00) making a contract price of $19,909.00 to you.
⅝ * ⅝ # sfc
Have your insurance carrier send a Certificate of Insurance to me showing you are covered on this job for the amounts stated in the specifications.
* 9k *

Overland made no objections to the terms of this letter and provided Preuitt with the Certificate of Insurance as requested. However, Doty, the operating partner, of Overland, testified his company had never been notified that it had been awarded a specific dollar contract and had no recollection of the work covered by Alternates 6 and 7. He stated that he had no knowledge of the letter until discovery proceedings after suit.

The job did not proceed immediately because of weather conditions. In March or April, 1965, Mr. Doty was called by the Superintendent on the job and requested to move the site dirt and the footings on the building. On April 8,1965, Overland moved men and machines onto the job, and according to Mr. Preuitt, worked thereafter until the latter part of May or early June, when it left the job site. Mr. Preuitt testified that Doty stated that he had to leave for “three or four days” to “finish another job” but that “he would be right back”. Doty testified that Overland worked the job from about April 8, 1965 through June 23, 1965. The work was further delayed by a cyclone and some difficulty with a high pressure line. Doty stated that on June 23,1965, the job was a “great, big general mess” and “bogged down” and so “we left the job”. Some of the Overland work had been completed, but a substantial amount remained to be done.

Despite Doty’s disclaimer of knowledge of a definite contract with Preuitt, Overland submitted to Preuitt an invoice for work performed “Against contract” for $10,000.00 containing no itemization of hourly charges for men and machines. Apparently, such an invoice was again presented, and on May 21, 1965, Preuitt paid Overland $9,000.00 on such invoice, withholding $1,000.00 for the customary 10% retention.

The record then discloses that Preuitt requested Overland upon many occasions to complete its work, with no results; the School Board in turn was putting pressure on Preuitt to complete the earth work, particularly on the football field, so that it would be ready for practice; and, the Board finally notified Preuitt to complete the work or the Board would have it done and back-charge Preuitt. Under this compulsion and Overland’s failure to complete its contract, Preuitt employed several others to complete the grading and excavating upon the basis of hourly charges for machinery and equipment. It apparently would have been possible for Preuitt to have obtained new bids on the uncompleted work under the Overland contract, but this would have entailed a new engineer’s survey and would have been time-consuming. Preuitt did this completion work at a cost of $15,666.67 in addition to the $9,000.00 already paid Overland, making the total cost to Preuitt of $24,666.77 or $4,757.67 in excess of the original contract price to Overland of $19,-909.00. The cost for the completion of the job was proved by actual cancelled checks from Preuitt, and Mr. Preuitt unequivocally testified that all of the work thus represented was work which Overland was obliged to do under the original bid and resulting subcontract, and no substantial proof was offered by Overland to the contrary. Presumably, the general contractor, Preuitt, would know what remained undone when Overland left the job. Overland made no attempt to subpoena the Preuitt-Board original general contract nor the plans and specifications, or to otherwise pursue discovery process to establish its apparent claim that Preuitt procured persons and machines to do work which Overland was not required to do either under contract or upon an hourly basis, the method used by Overland to support the allegations of the counterclaim.

The evidence offered by Overland was an itemization of the machines used and the man-hours worked by Overland on the Er-vin second addition supported by Overland’s intra office records, which totaled $13,-242.58. After credit for the $9,000.00 payment, Overland claims a balance due of $4,242.58. It should be noted, however, that Overland never did bill Preuitt upon this basis. Aside from the original billing of $10,000.00 “Against Contract”, above noted, Overland billed Preuitt seven times from June 2, 1965 through January 6, 1966, after Overland had left the job. Each of these billings was for the $1000.00 representing the 10% retention on the original billing under the contract. It was not until this litigation arose in 1970 that Overland made any claim or demand based upon an hourly charge. There was evidence that as a general business practice or custom, this type of subcontract is usually upon an hourly basis, but that at times such contracts are let at a fixed contract price. The two previous dirt contracts to Overland as subcontractor of Preuitt on the original Ervin school and the first addition, were fixed price contracts. It would seem reasonable that the contract here involved was such a fixed price contract since the element of unknown risk to Overland was minimized by reason of previous knowledge and experience on the Ervin school site. Mr. Preuitt testified with specificity that the work covered by Overland’s base bid consisted of roughing out building site and football field; grading parking lot; footings; foundations and excavations; and spreading dirt on football practice field. The Alternates No. 6 and No. 7 were for additional dirt work on roads, not included in the base bid. He identified the figures received from Doty (Plaintiff’s Exhibit No. 3) and that they were used by him in his bid for the job as shown on his bid sheets (Plaintiff’s Exhibit No. 2). He further testified that as general contractor, he was required to do this work. This testimony and the supporting exhibits with reference thereto were admitted into evidence without objection.

Further, Mr. Preuitt testified that when Overland left the job, it had completed the building excavation, footing excavation and stockpiled the black dirt. He stated that the work left undone under his contract with Overland was roads to be cut, football field and practice field to be roughed in and finished and the stockpiled dirt to be spread. This testimony was also admitted without objection. Further, Mr. Preuitt testified that he arranged for this unfinished work to be done by others, and identified each detailed invoice for such work, and the checks issued in payment thereof. No objection was made to this evidence.

It thus appears that all of the elements necessary to establish an oral contract, partial performance and payment thereon; abandonment, breach and damage were established by competent oral and documentary evidence, without objection. It has long been the rule in this state that parol evidence is properly admissible to prove the terms of an oral contract. Iowa-Missouri Walnut Co. v. Grahl, 237 Mo.App. 1093, 170 S.W.2d 437, 440[2] (1943); Ashbaugh v. Sims, 483 S.W.2d 80, 83[3] (Mo.App.1972). In the case at bar, the existence of the contract not only found support in the oral testimony of Mr. Preuitt but such testimony was buttressed by the letter of February 16, 1965, confirming the agreement and accepting Overland’s offer and the notations of the amounts bid and the use thereof in the estimate sheets used by Preuitt as the basis of its general contractor’s bid on the whole job. While the testimony of Doty created a conflict of evidence, in that he denied the agreement and contacts with Preuitt, the submission of fixed price bids and any knowledge of the February 16, 1965 letter of confirmation, such conflict involved credibility and was for initial resolution by the trier of the facts to which this court defers (even under the somewhat less rigid standards of Rule 73.01, as amended March, 1974) unless “satisfied the trial court’s findings should be otherwise”, Morris v. Holland, 529 S.W.2d 948, 952[1, 2] (Mo.App.1975), a decision of the Springfield District of this court; Brand v. Brand, 534 S.W.2d 628 (Mo.App., decided 3/2/76, St. Louis District); L.H.Y. v. J.M.Y., 535 S.W.2d 304 (Mo.App., decided 3/23/76, St. Louis District). The trial court found a valid oral contract, such finding was supported by substantial evidence, and nothing appears that impels a conclusion that such finding “should be otherwise”.

But Overland stoutly asserts that error was committed in permitting the testimony of Mr. Preuitt establishing the terms of such contract in the area of work commitments, extent of work done by Overland, and work which Preuitt completed, and that such testimony should have been stricken. The basis for this contention is that the “best evidence” rule was violated and rests upon a single isolated trial incident occurring after the detailed evidence of Preuitt, above summarized, and Mr. Preuitt’s testimony as to completion costs. The record discloses this:

“Q. (By counsel for Preuitt) Was that all for work you had to do on that job after Roy Doty (Overland) left the job and which you were required to perform and which you feel he was obligated to do under this subcontract ?
A. Yes.
MR. LEWIS (Counsel for Overland): Your Honor, I want to move that answer be stricken. The contract is the best evidence of what the subcontractor was required to do in this case. This man’s opinion of what might have been required by another written contract which is not in evidence is completely irrelevant and immaterial. This witness is not competent to testify to that.
THE COURT: Well, I am allowing it as I said before, because that is his view of it. You may make further objection to it later. Proceed.” (Emphasis and material in parenthesis supplied)

There are many reasons why this judgment should not be reversed upon this isolated trial incident. The basis for the objection is confused and unclear. The testimony of Mr. Preuitt, thus elicited, was cumulative. He had previously testified, without objection, to the facts leading to the allegedly objectionable answer quoted above, which, at best, was a conclusion or “his view of it” (as the court stated) and went only to the weight of the evidence. No motion was then or at anytime made by Overland to strike all preceding testimony either at the time of the trial incident or at anytime during the trial. Even a valid objection under the best evidence rule is essential to its preservation as error. 2 Jones on Evidence, 6th Edition, Section 7:3, p. 93.

However, the one overriding and conclusive reason why this assignment of error is without substantial validity is that the terms of the general contract between Preuitt and the school board were merely collateral and circumstantially relevant to the issues between the parties here. The best evidence rule has no application to proof of facts collateral to the issue. 2 Jones on Evidence, 6th Edition, Section 7:4, p. 96; 32A C.J.S. Evidence § 781-782, p. 100; State ex rel. Bush v. Elliott, 363 S.W.2d 631, 633-634[3] (Mo. banc 1963); State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336, 338-339[3] (Mo.1966); Rutledge v. Weisenborn, 142 S.W.2d 884, 886-887[3] (Mo.App.1940).

The underlying reason for the best evidence rule in the area of contract law is to prevent fraud, as, for example, a person having made a written agreement obligating him to one thing, attempts to establish by parol or extrinsic evidence that his obligation was another thing. In such a case, the basic agreement, being written, is the best evidence, and, as a rule of thumb, cannot be altered, modified or its terms impeached by extrinsic or parol evidence. However, as in this case, where the oral contract established by Preuitt’s evidence “has an existence independently of any writing” it may be established by oral testimony even though the fact “is evidenced by a writing”. 29 Am.Jur.2d, Evidence, Section 449, p. 510.

In Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306, 308[5, 6] (Mo.App.1965), recognition was accorded the exception to the best evidence rule permitting secondary evidence to prove collateral issues. This court said in Cline:

“It also appears that where the contents of the writing is not directly in issue, although the evidence contained in the writing may bear upon a fundamental issue in the case, that the best evidence rule does not apply and that secondary evidence may be used without accounting for the original document. * * * It should also be remembered that in many instances the fact to be proved exists independently of any writing; that it incidentally happens that there is evidence of such fact contained in a writing, as well as other evidence of such fact which exists completely independent of any writing. In such situation, both the written document and oral testimony constitute primary evidence of the independent fact. In such situation, either documentary or parol evidence may be used to prove the independent fact and the best evidence rule is not applicable. * * * ” (Emphasis supplied)

The case of Solway Decorating Company, Inc. v. Merando, Inc., 264 A.2d 501 (D.C.App.1970) is factually practically identical to the case at bar. A painting company, Solway, agreed in a telephone conversation with the general contractor, Merando, to do painting work on a high school building for a fixed price, which price the general contractor used in submitting its bid. When the contract was awarded to Merando, Sol-way refused to follow through on its oral contract, the general contractor was forced to obtain another painting contractor, and suit was brought for damages for the breach. The court held that Merando was entitled to recover from Solway upon the doctrine of promissory estoppel, in that it had made a promise which reasonably led Merando to rely upon such promise to its detriment, with resulting damage not otherwise avoidable.

Solway argued that proof of reliance upon the promise with reference to the painting subcontract was not established since the summary bid sheet on the whole contract was not produced showing that Solway’s bid figure on the painting contract was in fact used in the primary bid. In rejecting this argument, the court said, l.c. 503[2]:

“ * * * This is not a case calling for the application of the best evidence rule since Merando was not attempting to prove the contents of a written document. * * * We conclude that the trial judge was correct in ruling that Solway’s objection to the absence of the summary sheet was properly addressed to the weight of the evidence offered.” (Emphasis supplied)

Likewise, in the case at bar, Preuitt was not relying upon or attempting to prove the content of its contract with the school board. Also, Preuitt did offer its estimate sheets used in bidding the Ervin school second addition job which did incorporate the figures bid by Overland on the dirt work. While such prime contract would doubtless have been evidence of probative value to show the details of the dirt work required and would have been admitted as evidence thereof, it was not relied upon by Preuitt for its cause of action against Overland for breach of the oral subcontract for dirt work. At most, it was collateral and incidental to the basic cause of action and the best evidence rule was not applicable. It was not a valid ground for objection to the isolated question and answer above quoted. Overland was not precluded from producing or causing the production under compulsory process of the prime contract for whatever use or advantage Overland may have gleaned therefrom. 2 Jones on Evidence, 6th Edition, Section 7:3, pp. 93-94.

Overland further contends under the first point relied on that Preuitt failed to make a prima facie case as regards monetary damages since there was no showing that the charges paid by Preuitt to others to complete the dirt work were reasonable. There can be no argument with the rule, as stated in the cases relied upon by Overland on this point, that where there has been a part performance of a construction contract, the owner’s measure of damages is ordinarily the reasonable cost of completion.

A corollary of this rule, however, is that in a contract action involving determination of the reasonable value of services, in the absence of evidence to the contrary, the amount actually paid for such services is evidence, at least prima facie, of their value. Wyse v. Miller, 222 Mo.App. 165, 2 S.W.2d 806, 807[1] (1928); Catanzaro v. Duzer, 329 S.W.2d 257, 261[5] (Mo.App.1959); 31A C.J.S. Evidence § 184, p. 494; Burch v. Levy Bros. Box Co., 47 Cal.App.2d 104, 117 P.2d 435, 436[2] (1941). This rule has equal application to and persuasive force upon completion damages incurred with reference to construction contracts. 17A C.J.S. Contracts § 512, p. 837.

With reference to Overland’s final point (II), that it should have been allowed damages on its counterclaim under the principle of quantum meruit, the law is well defined. In this construction contract situation the courts have sought a two-fold objective: First, to preserve to the party not in default the benefit of his bargain; and second (and secondary), to allow the defaulting party to be compensated for the reasonable value of his work and materials furnished to party not in default. But this eminently fair and just premise has not been simple in its application and further judicial refinements have of necessity evolved. Of these, one explicates the rule that the defaulting party may recover in quantum meruit the reasonable value of his services less any damages which the non-defaulting party has suffered by reason of the default. Bradley Heating Company v. Thomas M. Sayman Realty and Investment Company, 201 S.W. 864, 865[3] (Mo.1918); Edmonds v. Stratton, 457 S.W.2d 228, 233-234[10, 11] (Mo.App.1970); Samuels v. Illinois Fire Insurance Company, 354 S.W.2d 352, 357-358[2, 3] (Mo.App.1961); 17A C.J.S. Contracts § 511, pp. 831-832, § 512, pp. 835-836; Miller v. Baum, 272 S.W.2d 775 (Tex.App.1954); Gregg v. Dunn, 38 Mo.App. 283, 288 (1889).

Based upon the application of these rules and the evidence adduced, it is apparent that the cost to Preuitt for the dirt work on the Ervin second addition totaled $24,666.67 ($9,000.00 paid Overland and $15,666.67 paid to others for completing the work). The original contract price with Overland was $19,909.00; the difference or damages sustained by Preuitt was $4,757.67, the amount of the judgment. Overland was entitled to nothing on the counterclaim.

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Cyrus Eugene RODGERS, Appellant.
    No. KCD 27678.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This appeal follows defendant’s conviction by a jury of two counts of first degree robbery and sentence to five years confinement on each count.

On this appeal defendant raises the single argument that his evidence of an alibi, un-rebutted by the State, was sufficient to raise a reasonable doubt as to his guilt. The defendant argues from this position the weight of the evidence was not sufficient to sustain the State’s burden of proof. Affirmed.

Defendant’s argument that undisputed evidence concerning an alibi raises a reasonable doubt as to his guilt is fully answered in State v. Eaton, 504 S.W.2d 12, 16[5-7] (Mo.1973). There the defendant argued the evidence was insufficient to sustain the conviction because a number of alibi witnesses gave “clear and uncontradicted” evidence the defendant was at another location at the time of the crime. The court stated at 504 S.W.2d 16[5-7]: “This argument assumes the truth of the testimony given by the alibi witnesses, but the jury could believe or disbelieve the alibi testimony.”

The court in Eaton further pointed out the defendant’s denial of the charge and his production of an alibi defense merely presented an issue of fact for the jury. Further, the court stated a reviewing court does not weigh the evidence, but that is a function reserved to the jury. In this case, the defendant does not question the sufficiency of the State’s evidence to sustain the conviction, but rather contends the weight of the State’s evidence was not sufficient to overcome the undisputed alibi evidence. This court cannot weigh the evidence. The jury weighed the evidence and found against the defendant. This court cannot disturb that finding.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Howard W. JACKSON, Appellant.
    No. KCD 27801.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Joseph P. Teasdale, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

By separate informations, defendant was charged with assaulting Jeffery L. Brooks and Robert L. Brooks, respectively, with a deadly weapon with intent to kill with malice aforethought. Section 559.180, RSMo 1969. Both incidents occurred on June 13, 1974; the assault perpetrated on Robert L. Brooks followed upon the heels of an assault perpetrated upon Jeffery L. Brooks.

Since it appeared that the bulk of the evidence to be presented would be the same with respect to each charge, the state and the defendant stipulated and agreed that both be tried at the same time and submitted as separate offenses. A jury found defendant guilty of both charges but was unable to agree upon his punishment. The trial court sentenced defendant to two ten-year terms in the custody of the Missouri Department of Corrections, same to run concurrently.

Defendant relies upon four points to vitiate the guilty verdicts: (1) a lack of substantial evidence to support them; (2) error in giving a certain instruction; (3) failure to declare a mistrial following several hours of deliberation by the jury; and (4) improper statements by the state during closing argument.

Defendant’s attack upon the sufficiency of the evidence is funneled to one narrow aspect — his identity as the person who committed the assaults. A recital of the evidence, with special emphasis on that pertaining to defendant’s identity, follows. Defendant had been keeping company with Elizabeth Brooks, daughter of Jeffery L. Brooks and sister of Robert L. Brooks. On the afternoon of June 13, 1974, defendant, while looking for Elizabeth, stopped at a beauty shop located at 51st and Prospect, Kansas City, Missouri, where one of her sisters was employed. A fist fight erupted between defendant and the sister. Another sister and younger brother who were present joined the fracas. The manager of the beauty shop finally broke up the fight. As defendant left the scene, he threatened to kill the two sisters and their brother. Shortly after 7 P.M. a car drove by the house of victim Jeffery L. Brooks. One of the occupants in the car fired three bursts from a shotgun through the front door of the Brooks’ home. Jeffery L. Brooks was struck on the side of the face and one of the pellets hit him in the eye, causing a loss of sight in one eye. Jeffery L. Brooks was acquainted with defendant and recognized him as the person who fired the shotgun. Jeffery L-. Brooks also identified defendant at the trial as the person who fired the bursts from the shotgun. On cross-examination victim Jeffery L. Brooks testified that the defendant looked the same at the time of the trial as he did on June 13, 1974, and had the “same amount of hair on his head.” Victim Robert L. Brooks, after visiting, his father at the hospital, was riding in a car driven by his brother-in-law, Melvin Hubbard. At approximately 8:30 P.M. the car they were in stopped for a “red light” at the intersection of 59th and Swope Parkway. While stopped another car pulled alongside them and one of the occupants shot Robert L. Brooks in the left arm with a “pistol”. Robert L. Brooks was acquainted with defendant and recognized defendant as the person who shot him. Robert L. Brooks also identified defendant at the trial as the person who shot him. On cross-examination, Robert L. Brooks testified that defendant looked the same at the time of the trial as he did on June 13, 1974, except for the fact that “his hair was a little lighter”. Melvin Hubbard also was acquainted with defendant and recognized defendant as one of the occupants in the ear that pulled up alongside his car. On cross-examination Hubbard testified that the col- or of defendant’s hair on June 13,1974, was “a little different—it was a reddish brown kind of a color”. Hubbard also testified on cross-examination that defendant had an “Afro” hairdo on June 13, 1974, “like [it] is now”. However, he was unable to recall whether defendant had a beard on June 13, 1974.

Defendant took the stand in his own behalf and testified that he was at home playing cards with friends throughout the entire period during which the two assaults occurred. His wife and friends corroborated his alibi. Defendant, although admitting his presence at the beauty shop during the afternoon of June 13, 1974, gave a substantially different version of the fight that occurred. Defendant identified a picture which the police took of him during the early morning hours of June 14,1974, shortly after his arrest. The picture was offered and admitted into evidence. Defendant testified that the picture accurately portrayed his appearance on June 13,1974. He further testified that on June 13, 1974, he had a beard, his hair was “straight” rather than “Afro” style, and his hair was not a “light color”. He implied by his testimony that he was clean shaven and wearing his hair “Afro” style at the time of trial.

Defendant argues that the picture taken by the police constituted unassailable proof that he had a beard and was wearing his hair “straight” on June 13,1974; therefore, the testimony of the two victims and Hubbard relative to his identity had no probative value because of its patent inconsistency with his appearance on June 13, 1974. Defendant caps this argument by asserting that since their testimony was so lacking in probative value, no substantial evidence existed to link him with the assaults.

For some unknown reason defendant did not see fit to make the picture so strongly relied upon available to this court on appeal. For all this court knows, what defendant has characterized as a beard on June 13,1974, may have been nothing more than a stubble of whiskers. Additionally, it is not beyond the realm of possibility that he recombed his hair after the assaults and prior to his arrest. Defendant has failed to demonstrate on appeal that his appearance at the time of trial as opposed to June 13, 1974, was so disparate that the testimony of the witnesses who identified him was utterly lacking in probative value as a matter of law. The jury had the benefit of seeing both the picture and defendant in person at the time of trial, and hearing the testimony of the various witnesses. Weighing the evidence and judging the credibility of the witnesses rested with the jury and their judgment will not be indiscriminately intruded upon by this court on appeal. State v. Williams, 376 S.W.2d 133 (Mo.1964); State v. Tucker, 451 S.W.2d 91 (Mo.1970); and State v. Graham, 527 S.W.2d 936 (Mo.App.1975). Defendant’s first point is ruled against him.

Any present claim of error associated with the giving of Instruction No. 5 (MAI-CR 2.10—Parties: General Responsibility for the Conduct of Others) will not be considered since it was never preserved for appellate review. At the trial defendant lodged a general objection against all the instructions except those which were given at his request. He did not lodge any specific objections against Instruction No. 5 at the time of trial, nor did he lodge any objection against said instruction, general or specific, in his motion for new trial. Rule 20.03 requires, in part, that “specific objections to given or refused instructions and verdict forms shall be required in motions for new trial unless made on the record at the time of trial.” Defendant’s indifference to any semblance of compliance with Rule 20.03, supra, precludes appellate consideration of his second point.

Defendant next complains that the trial court erred in not honoring his request for declaration of a mistrial because of the jury’s inability to arrive at a verdict following several hours of deliberation after it received the case. The jury received the case at approximately 10:50 A.M. on the third day of trial. At 12:40 P.M. the jury temporarily ceased deliberating for lunch. The record fails to disclose when it resumed deliberations following lunch. Nevertheless, at 2:45 P.M. the trial judge received the following note signed by the foreman of the jury: “We are unable to reach a unanimous decision.” By way of response, the trial judge summoned the jury to the courtroom and read Instruction No. 12 to them (MAI-CR 1.10 — Instructions After Extended Deliberation by the Jury). Defendant did not object to Instruction No. 12; nor did he move for a mistrial or take any action whatsoever at this point. At 5:45 P.M. the jury was again summoned to the courtroom by the trial judge, at which time he inquired, “Do you still stand in the same position that you did when you were down here last time, or have you made progress?” Speaking through their foreman, the jury advised the trial judge, “We are closer to being unanimous than we were before.” The trial judge then asked them, “Do you feel that further time would be beneficial to helping you arrive at a verdict?” The foreman, again speaking for the jury, replied, “I believe it would.” Thereupon the jury returned to the jury room for further deliberation. At this point, defendant, for the first time, objected to the jury’s protracted deliberation and moved that a mistrial be declared and the jury discharged, which was overruled. At 6:25 P.M., the jury returned verdicts finding defendant guilty of both assaults.

The length of time which a jury is permitted to deliberate rests largely within the discretion of the trial judge. State v. Shelby, 333 Mo. 610, 62 S.W.2d 721, 726 (1933); State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (1946); State v. Hampton, 317 S.W.2d 348, 358 (Mo.1958); and State v. Summers, 362 S.W.2d 537, 541 (Mo.1962), rev’d on other grounds. Practical considerations underlie investing the trial judge with this discretion. He is in a superior position to sense whether further deliberation remains viable or becomes coercive. Both the state and the accused have a valuable stake in his exercise of this discretion and appellate courts are properly reluctant to interfere absent a clear showing of abuse. No abuse of discretion has been shown by defendant in this case. The overall time that elapsed between submission of the case and rendition of the verdicts was not per se coercive. State v. Rose, 142 Mo. 418, 44 S.W. 329 (1898), rev’d on other grounds; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74 (1933); and State v. Summers, supra. The jurors in this case did not face an easy task. After two days of trial they had a tremendous amount of evidence to sift. To their credit, they obviously took their obligation as jurors seriously and gave more than superficial consideration to defendant’s alibi defense. The trial judge, as borne out by the record, was acutely conscious of avoiding a coercive situation and, to his credit, did so. Defendant obliquely argues that when the jury was sent back to the jury room a little after 5:45 P.M. to deliberate further, any deliberation thereafter was fraught with coercion because of apprehension or fear of being sequestered overnight. This argument is made without even a scintilla of evidence to support it. In order for it to prevail, this court would have to arbitrarily demean the conscientious manner in which the jurors in this case undertook their sworn duty. This it is unwilling to do. Defendant’s third point is ruled adversely to him.

Finally, defendant asserts that he should be granted a new trial because of improper statements made by the state during closing argument. The point itself fails to mention the nature of the argument complained about. The argument portion of defendant’s brief, however, reveals that his complaint is directed toward a portion of the state’s closing argument which he never objected to at the time or mentioned in his motion for a new trial. The court eschews this point because it was never preserved for appellate review. State v. Clark, 412 S.W.2d 493, 497 (Mo.1967); State v. Martin, 484 S.W.2d 179, 180 (Mo.1972); and State v. Jackson, 511 S.W.2d 771, 775 (Mo.1974).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Lyle Stacy CLARK, Appellant.
    No. KCD 27923.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    Gerald Kiser, Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   PER CURIAM.

Defendant was convicted by a jury of assault with intent to kill with malice aforethought, Section 559.180, RSMo 1969. The jury fixed the punishment at seven years in prison.

Defendant’s attorney filed a motion for a new trial, but thereafter defendant, with his attorney, appeared in open court and informed the court defendant desired to withdraw his motion for a new trial and waive his right to appeal. The court granted defendant the right to withdraw his motion for a new trial. Defendant, some five months thereafter, applied to this court and was granted leave to file a notice of appeal out of time. Finding defendant freely and voluntarily waived his right to appeal, the appeal is dismissed.

When defendant with his counsel appeared in court subsequent to the filing of the motion for a new trial, defendant’s counsel informed the court that defendant desired to withdraw his motion for a new trial and to waive his right to appeal. Thereupon the court conducted a far reaching inquiry, which covers seven pages in the record, designed to satisfy the court that the defendant was freely, knowingly and voluntarily withdrawing his motion for a new trial and waiving his right to appeal. The court directed questions both to the defendant and to his counsel. The court made as full and complete an inquiry as would have been conducted prior to accepting a guilty plea. This despite the fact such a full inquiry is not required to find a voluntary waiver of the right to appeal. McNamara v. State, 502 S.W.2d 306 (Mo. 1973). Near the end of the inquiry, the following occurred:

THE COURT: But you’d have, at least, you have a right to have your motion taken up, argued and ruled and I would do that if you, if you want me to. Also if, if I, if it’s rendered, if my decision would be adverse to you, you then would have a right to appeal this case, and you’re waiving all of those rights and that you can’t come back at some later date and file another motion for a new trial or ask you, that this one be heard. You’re asking to withdraw, is that right Mr. Kiser?
MR. KISER: Well, withdraw the motion for a new trial, and waive our right to appeal, correct.
THE COURT: All right.
MR. KISER: And I think he understands that, that this action is one that he has the right to take and that I have talked to him about the probabilities and possibilities of a motion for new trial and appeal, and we — and of course, I’ve advised him what I think about it and he, he has- made up his own mind.
THE COURT: Is that right, Mr. Clark?
THE DEFENDANT: Yes, sir, in fact I made up my mind when I was in the hospital that any results in any new trial would probably wind up the same, and I have no complaint with the jury’s finding whatever. In fact, it was about as low as you could get.

The court found the defendant understood the consequences of his action in withdrawing his motion for a new trial and waiving his right to appeal and further found that such action was voluntarily done with full understanding of his legal rights. The court further found the defendant was competent to understand the proceedings and the consequences of his acts.

It should be noted parenthetically that the reference to the defendant being in the hospital was in connection with a lung condition and had no relation to the defendant’s mental capacity.

On this appeal defendant seeks to raise a question concerning the sufficiency of the evidence and the correctness of two instructions. However, defendant makes no mention of his waiver of his right to appeal and his withdrawal of his motion for a new trial. Needless to say, he raises no question concerning the voluntary and knowing action on his part in waiving his right to appeal and in withdrawing his motion for a new trial.

“A defendant has the right voluntarily to withdraw his motion for new trial and waive his right to appeal.” State v. Phason, 406 S.W.2d 671, 673[1, 2] (Mo.1966). In this ease, the court found, and the defendant does not question such finding, that defendant did voluntarily and knowingly waive his right to appeal.

In State v. Harmon, 243 S.W.2d 326 (Mo.1951) the court discussed the effect of a waiver of the right to appeal. The court at 243 S.W.2d 330 quoted from a Pennsylvania case in which the trial court held the defendants had waived any right on appeal to urge any error occurring prior to sentence as follows: “ ‘In our view any other conclusion would amount to permitting the appellant to defeat the ends of justice by a trick played upon the district attorney and the trial court. While an appellate court will be slow to find a waiver of the right of appeal as a matter of inference, it should do so without hesitation where the intention to waive it is as clear as it is here.’ ” The court then added its own view: “We also should have no hesitation in holding that a defendant waives his right to appeal or to urge alleged error on appeal where the intention to so waive clearly appears from the record.”

In this ease there is no doubt the defendant freely, voluntarily and knowingly withdrew his motion for a new trial and waived his right to appeal. There is further no doubt that in so doing he intended to waive his right to rely on any error occurring during the trial. In the face of the unchallenged finding by the trial court, fully supported by evidence, that defendant waived his right to appeal, this court cannot draw any different conclusion.

Since the defendant has voluntarily waived his right to assert any alleged error and his right to appeal, there is nothing for this court to review. Defendant does not raise any question concerning his sentence or any error alleged to have been committed subsequent to the sentencing. It, therefore, follows the appeal must be dismissed.

All concur.

      . It should be noted that the question of a waiver of his right to appeal was not decided at the time leave was granted to file a notice of appeal out of time.


author: ROBERT R. WELBORN, Special Judge.

text:
    Willis L. SEARS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28027.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Gerald Kiser, Public Defender, Seventh Judicial Circuit, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Douglas Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial, without hearing, of motion under Rule 27.26 to set aside judgment of conviction and sentence of 12 years’ imprisonment on jury verdict finding Willis L. Sears guilty of robbery in the first degree. The conviction was affirmed on an earlier direct appeal in this court. State v. Sears, 501 S.W.2d 491 (Mo.App.1973).

I.

Validity of Information

The information on which appellant was tried and found guilty reads as follows:

“* * * [0]n or about the 24th day of September, A.D., 1971, at the County of Clay, in the State of Missouri, one Willis L. Sears did then and there wilfully and felo-niously make an assault in the presence, upon and against the person of Stuart Cleo Masten by violence, to-wit: by striking the person of Stuart Cleo Masten thereby putting the said Stuart Cleo Masten in fear of some immediate injury to his person and Willis L. Sears did then and there, unlawfully and feloniously, steal, take and carry away lawful money of the United States, to-wit: approximately $300.00 from the person of Stuart Cleo Masten, the property of Stuart Cleo Masten, without consent of the owner, thereby depriving the owner of the use thereof, against the peace and dignity of the State.”

Appellant contends that the information does not charge robbery in the first degree. He contends that it only charges conjunc-tively an assault and stealing from the person and fails to charge robbery in the first degree because it contains no allegation that the property was taken “by fear of injury or by force.”

On a collateral attack such as here involved, an information is not to be held bad “unless it is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” Cain v. United States, 349 F.2d 870, 872 (8th Cir. 1965), quoted in DeLuca v. State, 465 S.W.2d 609, 611 (Mo.1971). Here the information alleges the use of force against the owner of property, his being put in fear, and the taking of his property. The reasonable construction of the information is that it charges robbery in the first degree. Admittedly, the information does not contain some of the language usually found in information charging such offense, but such omissions are not fatal to the charge on collateral attack. Hodges v. State, 462 S.W.2d 786, 789[2] (Mo.1971). The charge laid is sufficiently definite to preclude another prosecution for the same offense. Tucker v. Kaiser, 176 S.W.2d 622, 624[3] (Mo. banc 1944); DeLuca v. State, supra; O’Neal v. State, 486 S.W.2d 206, 207[1] (Mo.1972).

Neither of the cases cited by appellant calls for a different conclusion as to the sufficiency of the charge. In State v. Reed, 412 S.W.2d 187 (Mo.1967), a charge of robbery in the language of the statute was held sufficient. That case is not authority for holding bad an information not in the language of the statute. State v. Burks, 159 Mo. 568, 60 S.W. 1100 (Mo.1901), involved a conviction for grand larceny on an information charging only embezzlement.

The trial court’s conclusion that the information charged the offense for which appellant was convicted has not been shown to have been clearly erroneous. Rule 27.-26(j).

II.

Adequate Assistance of Counsel

Appellant’s motion alleged that he was denied effective assistance of counsel because his trial counsel “failed to secure records or subpoena expert witnesses at the hearing on his motion for mental examination.” The motion states that counsel “failed to secure the records of Movant’s past mental examinations or to subpoena the doctors who would of gave testimony upon Movant’s motion for mental examination that he was not responsible for his criminal acts as a result of mental disease.” The names of no witnesses were stated, the motion asserting merely that he would “present evidence to fully support [the] ground * * *, including all records of the Court.”

Before his trial, appellant’s counsel did file a motion for mental examination alleging lack of capacity to understand the proceedings and to assist in his defense and also that defendant might have a mental disease or defect which would have excluded responsibility for his conduct. A hearing was held on the motion at which appellant was the sole witness. The testimony is summarized in State v. Sears, supra, and led the court to conclude: “The testimony of appellant rather positively established that he in fact possessed the capacity to proceed with trial.” 501 S.W.2d 493.

Under § 552.020 and § 552.030, RSMo 1969, that was the only issue actually before the court on the motion for mental examination. Although the motion did refer to lack of responsibility, as pointed out in the prior appeal, no step was taken to place that issue properly in the case, in accordance with § 552.030.

Thus, capacity to proceed was the only matter properly before the court and the transcript of the hearing on the motion demonstrated positively movant’s ability to stand trial. Therefore, the conclusion of the trial court on this motion that the allegation of ineffective assistance of counsel by reason of failure to produce testimony and reports relative to appellant’s mental state at some prior time did not give rise to a factual issue was not clearly erroneous.

III.

Denial of Continuance for Mental Examination

Duty of Trial Court to Order Mental Examination

Appellant asserts as due process violation under federal and state constitutional provisions the failure of the trial court to grant his request for continuance for a mental examination, and the failure of the trial court, sua sponte, to order a mental examination.

The trial court on these issues held that the decision on the prior appeal was conclusive. In that case, the court held that the failure to comply with the procedural requirements of § 552.030 eliminated any issue of mental responsibility from the case. The reassertion of that issue on a constitutional basis in the 27.26 motion did not require the court to reconsider the question. Crawford v. State, 436 S.W.2d 632 (Mo.1969); Davis v. State, 482 S.W.2d 468, 470[1, 2] (Mo.1972).

As for the requirement that the trial court have directed a mental examination, sua sponte, the federal authorities relied upon by appellant (Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)) do require that a court take such action in a criminal ease when the conduct of the defendant at and during the trial is such as to put the court on notice that a genuine question exists as to the ability of the defendant to stand trial. Here the trial court heard appellant on that issue and the result was positive evidence of capacity to stand trial. No untoward events occurred during the trial which would have called for further inquiry. This fact distinguishes this case from Pate v. Robinson and Drope v. Missouri, supra.

Again the trial court’s conclusions on these allegations were not clearly erroneous.

Judgment affirmed.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. James MOORE and Irvin Brown, Appellants.
    No. 28043.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    William G. Mays, II, Columbia, for appellants.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from convictions of burglary, second degree. Appellants question the sufficiency of the evidence. Affirmed.

Appellants contend (I) that the State’s evidence “was circumstantial, was insufficient to disprove the innocence of the defendants, and merely raised a suspicion of guilt.” See State v. Walker, 365 S.W.2d 597 (Mo.1963); State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17 (1941); State v. Whitaker, 275 S.W.2d 322 (Mo.1955); State v. De Witt, 191 Mo. 51, 90 S.W. 77 (1905); State v. Murphy, 356 Mo. 110, 201 S.W.2d 280 (banc 1947); State v. Farmer, 490 S.W.2d 72 (Mo.1973).

In this jury-waived case, the evidence warrants the following statement to demonstrate there was substantial evidence to support the verdict. See State v. Scott, 525 S.W.2d 410 (Mo.App.1975).

On April 20, 1974, in the early afternoon, David Lammers, part owner and salesman, was working in the Columbia Appliance Company at 10th and Broadway, Columbia, Boone County, Missouri. James Moore, Irvin Brown, and a third man entered the store. They looked at phonograph records and went to different parts of the store, not staying together. Mr. Lammers observed defendant Moore attempting to turn on an amplifier and, when he offered assistance, defendant said he was “only looking.” The three men then left. Mr. Lammers closed the store for the night at about 5:00 p. m., at which time all doors were locked.

Mr. Lammers returned to the store at about 11:00 p. m. in response to a report that the store had been burglarized. He discovered that a quantity of “stereo” equipment and records had been moved from their usual locations and stacked near a rear door which leads to 10th Street. The glass in the door had been broken. He also discovered several greenish-blue plastic shopping bags imprinted “Macy’s” which contained records from his record supply.

Paul Toler, another part owner of Columbia Appliance, identified a tape deck found by the back door which had been on a display shelf when he left the store at closing time. Mr. Toler also discovered a stocking-type cap on the floor near the stereo display which had not been there when he left the store.

Officers Hawkins and McMillen of the Columbia Police Department responded to a 10:30 p. m. call to check a vehicle parked in the east-west alley between 9th and 10th Streets, north of Broadway. Upon arrival there, they found a Cadillac automobile. Further investigation revealed the broken door, the Macy’s bags, and the merchandise stacked near the door inside Columbia Appliance. They also saw the stocking cap and noted that it smelled of strawberries. As Officer Hawkins was examining the appliance store’s showroom, he noted defendant Moore and another black male walking east on Broadway in front of the store.

Officer Purdy of the Columbia Police Department was dispatched to 10th and Broadway at 10:45 p. m. to back up the officers who had gone there to check a suspicious automobile. He observed defendants Brown and Moore approaching the Cadillac in the alley. He determined that the defendants had been using the Cadillac and that, according to them, it had quit running. Defendant Brown attempted to demonstrate such condition and the automobile started readily and was operable. He learned also that defendants were registered at Stephens Motel under false names. Inventory of the Cadillac yielded a quantity of strawberry incense and three plastic bags imprinted “Macy’s.” Defendants implicated a James Adams, also registered at Stephens Motel. He eluded arrest.

A fingerprint “lifted” from the bottom of the tape deck found at the rear door of Columbia Appliance matched a print taken from defendant Moore.

A statement of defendant Brown was read in evidence in which he indicated: that he, defendant Moore, and James Adams had traveled from Kansas City to Columbia in the Cadillac which was owned by a cousin of defendant Brown; that they registered at Stephens Motel, and walked downtown to see a movie at about 4:30 p. m.; that the movie already had started, so they walked around for awhile and returned to the motel; that at about 9:30 James Adams took the Cadillac and returned about an hour later without it, saying that he had done something, thought someone saw him, and left the car in an alley; that he and defendant Moore went to get it and were arrested. Defendant Moore made a similar statement.

Appellants’ argument would dismiss the fingerprint on the tape deck, their presence, and the presence of their automobile at the scene as suspicious circumstances, not sufficient to justify conviction.

Defendant Moore’s fingerprint was found on the bottom of the tape deck which had been moved from its place on a display shelf to the broken back door. He had examined an amplifier earlier in the day but was seen only to attempt to turn it on as opposed to lifting and moving the tape player found at the back door. Proof of fingerprints found at the scene of the crime “ ‘under such circumstances that they could only have been impressed at the time the crime was committed, correspond to those of the accused, may be sufficient proof of identity to sustain a conviction.’ ” State v. Allen, 420 S.W.2d 330, 333 (Mo.1967). This, together with the presence of the defendants and their automobile at the scene when the crime was discovered, provides more than a suspicion of guilt. Of additional probative value are the circumstances surrounding the condition of the automobile which defendants stated to be inoperable. Such statements were false and therefore incriminating for if the facts were consistent with defendants’ innocence they would not have lied about them. State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 687 (Mo.1936).

Appellants contend (II) that they should have been acquitted “because the defendants’ evidence of alibi, left unrebutted, was sufficient to raise a reasonable doubt as to the guilt of the defendants.”

Such an argument assumes the truth of testimony in support of the alibi, but the trier of fact could believe or disbelieve the alibi testimony. Defendants’ denial of the charge and the proof in support of their alibi is not conclusive but simply presented an issue of fact. State v. Eaton, 504 S.W.2d 12, 16 (Mo.1973); State v. Rodgers, 536 S.W.2d 916 (Mo.App.1976).

Judgment affirmed.

All concur.