author: STONE, Judge.

text:
    E. L. CAPOFERRI, Plaintiff-Respondent, v. Robert E. DAY, Defendant-Appellant.
    No. 9285.
    Missouri Court of Appeals, Springfield District.
    May 12, 1975.

      Neale, Newman, Bradshaw & Freeman, O. J. Taylor, Springfield, for defendant-appellant.
    John A. Honssinger, Lebanon, for plaintiff-respondent.
   STONE, Judge.

In this court-tried action instituted on October 2, 1965, by plaintiff Dr. E. L. Ca-poferri against defendant Dr. Robert E. Day to recover an alleged “overpayment of [income] taxes and interest,” defendant Dr. Day appeals from the judgment against him in the principal sum of $6,319.04 with interest thereon from and after April 22, 1964. For an understanding of our disposition of this appeal, a careful factual review is necessary.

During 1957 Dr. Day, then engaged in the practice of “general dentistry” in the Kansas City area, was'| taking a graduate course in orthodontics with a view to changing his practice to that specialty. Having drastically curtailed his general practice while taking t,he graduate course, after completion thereof in December 1957 his time was not fully occupied in his own office so he arranged to treat orthodontic patients in the offices of certain dentists in other cities. One of the dentists with whom he became acquainted and, during the latter part of 1957, effected such an arrangement was Dr. Capoferri who was engaged in general practice at Lebanon, Missouri. Under that arrangement, Dr. Day came to Lebanon at appointed times and treated orthodontic patients in office space “shared” with Dr. Capoferri. The two dentists were not partners and each billed his own patients, but “ten per cent of the gross amount taken” by Dr. Day for treatment of patients at Lebanon was paid to Dr. Capoferri as “rental.”

Early in 1959 Drs. Capoferri and Day (hereinafter sometimes referred to as “the dentists”) talked with one Mulhern of Kansas City, an architect who kindled and fanned the dentists’ interest in “corporate entities where self-employees could legally gain the pretax advantage towards (sic) long range retirement and capital gains through a corporate entity.” After they had “talked this thing over a number of times,” the dentists decided to confer with Mr. Anthony J. Miceli, a Kansas City attorney who had been recommended by Mul-hern. Miceli’s testimonial recollection was that, during his first conference with the dentists in “early 1959,” they “wanted to incorporate their personal practice and all of their property and everything into one corporation” but that he told them “their personal practice would have to be eliminated” and suggested they “think it over and see if they wanted that.” Dr. Capoferri remembered Miceli had informed the dentists that “in the beginning ... I would gain a little advantage taxwise, more so than Dr. Day because I had more assets go in it,” but had declared that formation of the corporation was “like a marriage” and “in time we would equalize, depending upon how fast Dr. Day wanted to build up the equities in this corporation.” However, Miceli said he was not “a tax consultant man” and, upon his recommendation, the dentists conferred with Meyer Rashbaum, a Kansas City CPA.

Subsequently during the spring of 1959, under Miceli’s legal guidance the dentists did “incorporate their physical assets” in a Missouri corporation, C and D Dental Associates, Inc. (hereinafter “the corporation”). Dr. Capoferri identified the property transferred by him to the corporation as “my office building and equipment, what automobiles I may have had then, and physical plants in relation to my practice — any assets that I had at that time.” In similarly indefinite fashion, the property transferred by Dr. Day to the corporation was described as “his equity in a farm at Higginsville and his equipment that he had in these various offices at that particular time, and the automobile and plane and what farm equipment he had.” Although there is no disclosure in the record concerning the valuation of any property or equity therein transferred to the corporation, we are informed that the aggregate valuation of the properties or equities therein transferred by Dr. Capoferri to the corporation was “39,000 or $39,500, somewhere around there,” in excess of the aggregate valuation of the properties or equities therein transferred by Dr. Day to the corporation and that, to equalize the dentists’ capital contributions to the corporation and their “voting privileges” therein, Dr. Day executed and delivered to the corporation his note for the difference in the aggregate valuations of the properties transferred by the respective dentists. Whereupon, 560 shares of the capital stock of the corporation were issued to each dentist and 2 shares of such stock were issued to Mulhern.

We observe parenthetically that, although we do not attribute to the dentists, or either of them, any improper or illegal motive or intent, the record before us indicates that such portion of Dr. Day’s 560 shares of corporate capital stock as he received for his note of “$39,000 or $39,500, somewhere around there,” was issued in direct contravention of the plain constitutional provision that “[n]o corporation shall issue stock . . . except for money paid, labor done or property actually received” [Mo.Const. Art. XI, § 7, Y.A.M.S.] and the equally positive statutory prohibition that “[n]o note or obligation given by any shareholder . . . shall be considered as payment of any part of any share or shares . . . .” § 351.165, RSMo 1969, V.A.M.S. See Townsend v. Maplewood Investment & Loan Co., 351 Mo. 738, 745, 173 S.W.2d 911, 914(8) (1943); Bankers’ Mortgage Co. v. Lessley, 225 Mo.App. 643, 38 S.W.2d 485, 486(1) (1931).

Returning to the evidentiary jungle, we find that, insofar as they are revealed, the corporate operating practices and procedures were, to put it mildly, unconventional and unorthodox. Such information as we have in this area is gleaned from the dentists’ testimony, since no corporate minutes, books or records of any character were offered in evidence. The dentists agreed that, although two corporate bank accounts, to wit, one in a Lebanon bank and another in a Kansas City bank, were established and maintained, only Dr. Capoferri could draw on the Lebanon account and only Dr. Day could draw on the Kansas City account; that Dr. Capoferri from time to time deposited in the Lebanon corporate account “rent” on the Lebanon properties, both real and personal, title to which he had transferred to the corporation, and paid from the same account all expenses related to those properties; and that similarly Dr. Day from time to time deposited in the Kansas City corporate account all income from properties, including his farm, title to which he had transferred to the corporation, and paid from the same account all expenses related to those properties. Neither dentist sought or acquired any information concerning deposits in or withdrawals from the corporate account controlled by the other dentist. Dr. Capoferri said that Rashbaum had advised maintenance of the two corporate bank accounts — “that was a part of his accounting methods.”

Shortly after the close of each calendar year, Dr. Capoferri delivered to Rashbaum in Kansas City the relevant records pertaining to corporate operations in Lebanon during the preceding year and also his personal records for that year, and Dr. Day likewise delivered to Rashbaum the relevant records pertaining to corporate operations in the Kansas City area and also his personal records, in order that Rashbaum might prepare income tax returns for the corporation and each of the dentists. Having (as Dr. Capoferri explained upon trial) “left up to” Rashbaum “[a]ll the paying of income taxes and the accounting and so on,” neither of the dentists knew that Rashbaum had not filed corporate tax returns until that neglect was discovered in the course of what began as “a routine spot check” in Dr. Capoferri’s office by an Internal Revenue Service agent. Rashbaum then declared that he had filed corporate tax returns but, when an IRS search revealed none, he admitted that none had been filed.

As a result of the ensuing IRS investigation, additional income taxes, penalties and interest were assessed against the corporation and each of the dentists. Notwithstanding Rashbaum’s prior negligence or carelessness, the dentists still relied on him to obtain the “final figures” from the IRS and pressed him (as Dr. Capoferri put it) “to get this resolved.” During the latter part of April 1964, the dentists met with Rashbaum in Kansas City, at which time he informed them that the additional income taxes, penalties and interest assessed against the corporation and the individual dentists aggregated $19,874.56. Dr. Day said Rashbaum also broke down that aggregate by giving them three figures and thus informing them of the amount assessed against each of the three taxpayers, i. e., the corporation and the individual dentists. On the other hand, Dr. Capoferri insisted that at the April 1964 meeting Rashbaum had given the dentists only the aggregate figure owed by the three taxpayers. In this connection, we observe parenthetically that the IRS agent’s report (deft’s, ex. B) theretofore transmitted to Dr. Capoferri on February 24, 1964, had notified and informed him of the deficiency assessments and penalties aggregating $5,386.31 on his individual income tax returns for 1959, 1960 and 1961, so it would seem that he should have had some idea as to the approximate amount assessed on his individual returns which was included in the aggregate figure of $19,874.56 assessed against the corporation and the dentists. But, when interrogated about the IRS report Dr. Capoferri “assumed” that he had received it “but to say I went over it or what its meaning was, no . . I referred it to Mr. Rashbaum or Mr. Shine because they were handling the settlement of it.”

However that may have been, the dentists did agree that Rashbaum then told them Dr. Capoferri owed $13,725.36 (69.06% of the aggregate figure of $19,874.56) and Dr. Day owed $6,149.20 (30.94% of the aggregate figure). Thereafter on April 22, 1964, Dr. Capoferri personally borrowed funds from a Lebanon bank, deposited them in the same bank in the corporate checking account controlled by him, and issued a remittance to the IRS in the sum of $13,-725.36 on a printed and numbered corporate check form, signed by him as President. Likewise, Dr. Day borrowed funds with which he paid the $6,149.20 allocated to him by Rashbaum.

The basis and method of Rashbaum’s allocation of the aggregate tax assessment are reflected in defendant’s exhibit C, a schedule prepared by him and captioned “Analysis of Benefits Derived from Utilization of Corporation — 1959-1961 Inch,” which showed (a) the income tax actually paid by each dentist for each of those three years, (b) the income tax which would have been payable by each dentist for each of those years but for “utilization of the corporation,” and (c) the resulting tax saving to each dentist for each year, and then in simple arithmetical calculations recorded on the schedule arrived at the result that the tax saving to Dr. Capoferri, whose income each year apparently had exceeded that of Dr. Day, was 69.06% of the total while the tax saving to Dr. Day was 30.94% of the total. We also observe the notation on this schedule that the aggregate assessment of $19,874.56 by the IRS included assessments against each of the individual dentists for three years and against the corporation for four years. Another exhibit, plaintiff’s exhibit 1 (of which more anon), informs us that the additional assessments against Dr. Capoferri were for 1959, 1960 and 1961, those against Dr. Day were for 1960, 1961 and 1962, and those against the corporation were for 1959, 1960, 1961 and 1962.

It is not clear just when the dentists first saw Rashbaum’s schedule (deft’s, ex. C). As was true with respect to numerous factual aspects of the case, the evidence on this subject was, to put it charitably, confused and confusing. E. g., with respect to the date when Dr. Capoferri first saw Rashb-aum’s schedule he said: “The first time I saw this, this was at a meeting at Dr. Day’s office when our question came up about how this was figured. We were both shocked on the total amount of the tax. Q. You were shocked on what date? A. On the 22nd of April [1964] when we later had a meeting in Dr. Day’s office and this is when we first came up with any kind of reconciliation as to what Mr. Rashbaum was trying to make as to what the IRS had found. Q. When was that meeting? A. It was some time after this date that we were notified to get this money together.” Dr. Day testified positively that “the purpose” of the April 1964 meeting in his office was “[t]o decide a fair and equitable distribution of taxes owed according to the IRS records,” that Rashbaum’s schedule “was in the office” at that time, and that Rashbaum then explained to the dentists how he had determined, as shown on that schedule, what he believed to be an equitable allocation of the aggregate assessment. Furthermore, Dr. Day asserted that, after Rashb-aums explanation, his allocation was “accepted as final” by both of the dentists. Unfortunately, Rashbaum had “shuffled off this mortal coil” [Shakespeare, Hamlet, Act III, Sc. 1] before trial of the instant case, so neither the circuit court nor this court has had the benefit of his version of the facts bearing upon the foregoing matters.

Under date of July 8, 1964, the dentists joined in a letter to Rashbaum terminating his employment and directing that their “accounts and records” be transferred to the firm of Stosberg, Davis and Musgrave at Higginsville, Missouri, and subsequently on a date not fixed in the record Haddon C. Stosberg of that firm began to handle the dentists’ accounting. Other than the termination letter to Rashbaum, the transcript reflects no significant event or activity until Dr. Capoferri received a letter (not in evidence) dated November 17, 1964, from the IRS, with which was enclosed a tabulation (plaintiff’s exhibit 1, copied marginally, and hereinafter referred to as the IRS tabulation) reflecting (a) the assessments against the corporation and each of the dentists, (b) the IRS application of the dentists’ April 1964 payments aggregating $19,874.56, and (c) a balance of $507.04 still owing and unpaid.

Following receipt of this IRS letter and tabulation, the dentists and their tax attorney Shine met with an IRS agent in the Kansas City IRS office. Although the IRS application of the dentists’ April 1964 payments showed the balance of $507.04 as owing by Dr. Capoferri, the IRS agent said “he didn’t care who paid it or how” but he “was very insistent [on] getting that money right then”; and, although (so Dr. Day said) “there was some question at the time as to how we [the dentists] should prorate it,” their accountant was not present and, after “some discussion,” the dentists decided that “the best way to expedite the matter was to split it right then and be done with the matter.” Upon trial, Dr. Capofer-ri unqualifiedly approved the “question” put by Dr. Day’s counsel that “it was agreed there [in the IRS office] at that time that it [the unpaid balance] would be split 50-50 in order to close up the tax accounts” for both of the dentists and the corporation. The date of this conference in the IRS office is fixed as December 14, 1964, that being the date of Dr. Capoferri’s check for $272.20 then issued for his one-half of the final payment.

Although Dr. Capoferri testified that he had never accepted as correct Rashbaum’s allocation of the aggregate figure of $19,-874.56 at the April 1964 meeting, the transcript before us records no complaint or action until December 14, 1964. As Dr. Capoferri related it, after the dentists had made their final payments to the IRS “that same morning we went up to see Mr. Miceli, and I showed him this accounting that we had, this green sheet that I am speaking of, and upon his advice, he said again as he had always said, he was not an accounting expert but apparently from that it looked like I had overpaid and he suggested we get another accountant’s opinion and go from there.” Thus it was, so Dr. Capoferri continued, “after talking to Mr. Miceli and receiving his advice that is when we agreed at his convenience, that the records of the corporation and the stock books and everything were at Dr. Day’s office, to get someone relatively close to, where, if they needed any information, he would be handy to it . so that is how we come about to choosing Stosberg.” Coupled with this testimony concerning “how we come about to choosing Stosberg” on December 14, 1964, was Dr. Capoferri’s declaration that he and Dr. Day were then “prompted ... to discuss Mr. Stosberg and subsequently go to see him” because “we were still at a loss whether we had each paid properly or not and we wanted to know, and we wanted to be right by one another.”

However, when confronted on cross-examination with the dentists’ joint letter of July 8, 1964, to Rashbaum terminating his employment and directing the transfer of their “accounts and records” to Stosberg’s firm at Higginsville, Dr. Capoferri conceded “I am wrong on my timing That is the actual time we did agree on doing that.” And, to the next question simply seeking confirmation of the prior admission that in July 1964, the dentists had definitely decided to use Stosberg to do their accounting, Dr. Capoferri couched such reaffirmation in this verbiage “[a]nd to refigure all of this, yes,” and immediately undertook to explore “[n]ow here is what it might have been,” which however was foreclosed by sustention of a timely objection.

Dr. Day well remembered the conference in the IRS office on December 14,1964, and the final payment then made; but he did not recall a subsequent meeting with Miceli on that date and, when pressed by adversary counsel, declared “I don’t believe there was any meeting of that nature.”

Attorney Miceli was called as a witness for Dr. Capoferri. After the witness had testified concerning his advice to the dentists in 1959 regarding incorporation and his services in incorporating C & D Dental Associates, Inc., Dr. Capoferri’s counsel posed this question “. . .1 direct your attention to December 1964, did you ever confer with them again regarding the corporation,” to which the witness responded, “I don’t remember the exact date, but they did come in in either ’64 or ’65 with the work sheet of the IRS about their taxes and they asked me to explain all of this thing. I said ‘Look, I don’t know enough about this. You will have to get another CPA or someone to check this thing over for you and tell you where you stand on this.’ I could not do it.” On this answer patently denoting uncertainty as to the date of the meeting as well as the witness’ incapability to render the service requested, Dr. Capoferri’s counsel thereafter assumed that the dentists conferred with Miceli in December 1964. Suggesting “this might refresh your memory, perhaps,” counsel inquired “do you recall whether these gentlemen had with them that date in December ’64 what we referred to as plaintiff’s exhibit No. 1 [copied marginally in note 4],” and the witness replied, “they may have had it but it has been so long ago. I don’t recall.” Then asked “what, if anything was said specifically by Dr. Day at that conference ... in 1964,” Miceli offered the hesitant response, “well, I think he suggested they get this fellow from Lexington, I forget his name, to do the revamping of this finding and to tell them where they each stood.” When counsel suggested “Stosberg,” the witness immediately agreed that was the name and then added “I thought it was by mutual consent of both of them, that was my understanding. It has been so long ago — .”

As we have seen, Dr. Capoferri’s final payment to the IRS and his testimony fixed the date of this conference in Miceli’s office as December 14, 1964. Only three days later, to wit, on December 17, 1964, Miceli wrote Dr. Capoferri at Lebanon, that letter being in evidence as defendant’s exhibit A and copied marginally, sans Miceli’s printed letterhead, typewritten date, salutation to “Dear Cap,” and complimentary close. “[T]he audit returns from Mr. Stosberg,” to which Miceli referred in the first sentence of that letter, were not mentioned elsewhere in the record or offered in evidence.

Dr. Day asseverated that Stosberg was employed “to pick up” where Rashbaum had “left off” and “to carry on as best he could” in preparing 1964 tax returns for the corporation and dentists, and that he was not employed to “reaudit and study” the tax returns for prior years although he probably would have gone back to the IRS audits to make the “pickup.” Dr. Capoferri conceded that “the first thing” required of Stosberg was “to get our 1964 tax returns in in time” but that, as his work schedule permitted, he was “to re-go over this accounting and to see whether the accounting on these taxes that we paid was correct.”

Whatever Stosberg may have been requested to do, his only work product in evidence (as defendant’s exhibit E) is a copy of a four-page letter addressed to Dr. Ca-poferri under date of May 25, 1965. Although stating in the first sentence that “[t]he following computation will show you the tax results of you and Dr. Day if the corporation had not been in existence,” Stosberg immediately pointed out that “I can only give you this computation for 1960 and 1961 as Dr. Day’s 1959 return was settled before this examination and your [Dr. Capoferri’s] 1962 return was settled after this examination,” and then pointed out that the IRS assessments paid by the dentists included Dr. Capoferri’s individual returns for 1959, 1960 and 1961, Dr. Day’s individual returns for 1960, 1961 and 1962, and the corporation’s tax returns for 1959, 1960, 1961 and 1962. These preliminary observations and caveats were followed by four pages of computations, the last entry or line being “Payment [by Dr. Capoferri] in excess of assessment — $5,738.57.” The author then concluded his letter thusly: “I don’t know whether these figures make any sense to you or not. I would be happy to meet with you and Dr. Day to discuss them.”

In the interim between the IRS settlement on December 14, 1964, and Stosberg’s letter of May 25, 1965, there had been two noteworthy developments, to wit, (a) an open rupture of the dentists’ personal and professional relationship during March 1965, and (b) the dissolution of the corporation during April 1965 which was recommended by Stosberg and, pursuant to the dentists’ request, handled by Miceli.

Of the rupture. The rupture of the dentists’ relationship was evidenced and exacerbated by a three-page, single-spaced typewritten letter from Dr. Day to Dr. Capofer-ri dated March 14,1965, defendant’s exhibit F received in evidence as “showing credibility and the feeling of the parties only.” The opening paragraph of that letter notified Dr. Capoferri that Dr. Day was moving his office location to another dentist’s suite in Lebanon, suggested that this probably did not come “as a complete shock to you,” but added that the writer nevertheless would “attempt on the following pages to explain” the principal reasons for his move. He assigned as “[t]he precipitating cause” for that move “the grossly inconsiderate manner with which you shoved your cattle on the farm this fall when I was not prepared to accept them, feed them, water them, or watch after them during the winter,” notwithstanding that “[y]ou were informed of these facts many times before you moved them here,” and declared this “fiasco” had resulted in “additional expense that I could not afford, not only in money but more valuable time . . . .” In like tenor and tone, Dr. Day complained concerning Dr. Capoferri’s alleged indiscriminate and improper booking of his patients for Dr. Day’s attention on his Saturdays in Lebanon, which resulted in many of those patients being treated by Dr. Day “practically free.”

In the remainder of the letter, Dr. Day reviewed “a couple of our ventures [that] did not pan out profitably for us, namely the Aerial Ag. Program and the C & D Corp.,” both of which “were highly speculative and therefore very subject to loss.” With respect to Aerial Ag., Dr. Day wrote that, since he “felt” his encouragement had “caused you to join the venture,” he had attempted, in the manner and amounts there detailed, to reimburse Dr. Capoferri for the latter’s investment of about $4,000. As for C & D, Dr. Day emphatically declared that he felt no such obligation to Dr. Capoferri, since both of the dentists “met Rashbaum and Miceli at the same time and in the same manner” and “[i]t was understood by all of us from the very outset that the venture may not work out as planned.” Expressing the opinion that “[t]he only thing we have to squawk about is Rashb-aum’s failure to submit tax reports and his failure to cooperate with us in the ordeal” with the IRS, Dr. Day asserted “statements and comments that I have heard lead me to think that you would hold me responsible for involving you in this mess,” which (so Dr. Day asserted) simply was “not true.” Closing on a bitter note, Dr. Day recorded the opinion that “our friendship, which outwardly was on the call a ‘Spade a Spade’ basis has dissolved into ‘Make a Buck’ basis at my expense” and thus “it is a good time to make a clean break and each go our own separate ways.”

Of the corporate dissolution. As we have heretofore recorded, at the time of incorporation Dr. Day executed and delivered to the corporation, in payment for a portion of the capital stock issued to him, his note for the difference in the aggregate valuations of the properties or equities therein conveyed to the corporation by the respective dentists. Dr. Capoferri thought that the principal sum of that note was “$39,000 or $39,500, somewhere around there.” However, in Dr. Day’s letter of March 21, 1965 (deft’s, ex. G) to Dr. Capoferri, he referred to his “original $35,000 note.” Whatever the stated principal sum may have been, no interest was ever paid on it; and when the corporation was dissolved, the note was can-celled and returned to Dr. Day. Also in the course of dissolution the corporation recon-veyed to each dentist, by deeds which Miceli prepared, the properties theretofore conveyed by that dentist to the corporation when it was formed. As at the time of incorporation, there was no evidence even indicating the value of any property or equity therein when reeonveyed by the corporation to one of the dentists. In this connection, we recollect that 2 shares of corporate stock were issued to Mulhern as an incorporating shareholder, concerning which Dr. Capoferri testified that he was not cognizant of “any contributions money-wise, propertywise, or otherwise” by Mul-hern to the corporation and that he did not know “what actually happened to them [Mulhern’s 2 shares] without going back to the records that L don’t have.”

Moving forward from May 25, 1965, the date of Stosberg’s four-page letter to Dr. Capoferri (deft’s, ex. E), copy of which was sent to Dr. Day, we take note of Dr. Capof-erri’s testimony that Stosberg had said “he was going to try to get he and Dr. Day and I together to discuss this thing” but later “told me he could never get a time agreeable with Dr. Day.” Continuing, Dr. Capof-erri stated he subsequently called Dr. Day “to get a time set up and that is when I made my demand” and elicited the reply that “he [Dr. Day] wasn’t about to, he didn’t feel that he owed it.” (Emphasis ours) Dr. Day’s testimony on this subject was that Stosberg never attempted to arrange a meeting with the two dentists and that, although Dr. Capoferri discussed Stos-berg’s letter of May 25, 1965, with him (Dr. Day), “we were at personal odds” then and “I told him . . . that I would not accept this letter at all.” Furthermore, Dr. Day said that, prior to his hereinbefore reviewed letter of March 14, 1965 (deft’s, ex. F), Dr. Capoferri had made no monetary claim against him and had never stated “that he [Dr. Capoferri] thought [Dr. Day] owed him any money.”

Again advancing chronologically, we find that Dr. Capoferri instituted the case at bar on October 2, 1965, by the filing of his petition in which he alleged his payment of excess taxes and interest on April 22, 1964, pursuant to Rashbaum’s unequal and inequitable allocation of the IRS assessments aggregating $19,874.56 against the corporation and the dentists, asserted that, when he discovered this “unequal pro-ration of taxes,” he and Dr. Day agreed to submit the facts and figures to Stosberg, another independent auditor, and to abide by his findings and conclusions, and charged that, “upon completion of said independent audit it was determined by said auditor . that defendant [Day] owed to plaintiff [Ca-poferri] the sum of $6,319.04, together with interest thereon,” but that, “in spite of said agreement,” defendant refused to accept and abide by Stosberg’s findings and to pay $6,319.04 for which sum, with interest thereon, plaintiff sought judgment. In due time, an answer was filed on behalf of Dr. Day embodying such admissions and denials as he and his counsel deemed appropriate and also affirmative defenses of accord and satisfaction, estoppel by reason of settlement with the IRS, and estoppel by reason of liquidation of the corporation. Additionally defendant counterclaimed, “in the event that the court holds that the plaintiff’s claim is not barred by reason of the affirmative defenses alleged in the defendant’s answer,” seeking an accounting with respect to all business transactions, including those of the corporation, in which plaintiff and defendant had been involved between 1957 and 1965.

The suit remained pending on these pleadings until January 15, 1968, when plaintiff Capoferri filed his first amended petition in which he (a) emphasized the “distribution of the corporate net assets . upon the basis of [Capoferri’s and Day’s] equal and respective ownership of 560 shares of stock therein,” complained about Rashbaum’s unequal proration of the IRS aggregate assessments against the dentists and the corporation, and declared that as a result thereof he (Capoferri) had paid taxes and interest of $6,319.04 in excess of his legal obligation to pay “by virtue of equal ownership of [corporate] shares . and . . . equal distribution of net corporate funds and net assets,” and (b) again pleaded the alleged mutual agreement to submit the “facts and figures” to Stosberg, who made an “independent audit” reflecting an overpayment of $6,319.04 by plaintiff Capoferri, for which he sought judgment with interest thereon. In due time defendant Day filed his answer embodying certain admissions and denials and pleading the same affirmative defenses as in his original answer, and at the same time reasserted the counterclaim previously filed.

On December 7, 1970, the case was tried in the Circuit Court of Laclede County and taken under advisement by the then circuit judge. Neither party having requested before final submission a statement of the grounds for decision, findings on specified issues of fact, or the method of determining damages awarded [Rule 73.01, par. 1(b), Y.A.M.R.], on March 9, 1972, the court found “all the issues” for plaintiff Capofer-ri and against defendant Day, entered judg-. ment for plaintiff in the principal sum of $6,319.04 with interest thereon from April 22,1964, and dismissed defendant’s counterclaim.

Whatever may have been plaintiff’s precise legal theory of recovery, concerning which we find no specific declaration in his brief and we need not undertake to determine here, it is unmistakably clear that essential elements of plaintiff’s case as pleaded and presented were not only (a) an alleged oral agreement between the dentists to submit the “facts and figures to an independent auditor” identified as Stosberg but also (b) “an independent audit” by Stos-berg which allegedly reflected “an overpayment by plaintiff [Capoferri] of taxes and interest” in the sum of $6,319.04. The record is replete with references to Stos-berg, only a few of which had been noted in our nimious factual review. But, notwithstanding plaintiff’s repeatedly stated reliance upon Stosberg and an independent audit by him (which, so it would seem, to be meaningful in resolving the controversy at bar, necessarily would have covered the years prior to 1964 for which additional IRS assessments had been imposed), no such audit was shown to have been made, the only work product of Stosberg in evidence was the hereinbefore discussed four-page letter to Dr. Capoferri dated May 25, 1965 (deft’s, ex. E), Stosberg’s testimony was not adduced in person or by deposition, and the record reflects neither effort to present his testimony nor explanation for failure to do so.

In this court-tried case, our review is upon both the law and the evidence as in suits of an equitable nature, according due regard to the opportunity of the trial court to have judged the credibility of the witnesses [Rule 73.01, pars. 3(a) and (b)], and we are directed to dispose finally of the case, “[u]nless justice otherwise requires.” Rule 84.14, Y.A.M.R. Household Finance Co. v. Watson, 522 S.W.2d 111 (Mo.App.1975). Of course, our duty to make final disposition of the ease on appeal presupposes a record and evidence upon which we can perform this function with some degree of confidence in the reasonableness, fairness and accuracy of our conclusion; and, when such record and evidence are not presented, reversal and remand necessarily follow. Phelps v. Watson-Stillman Co., 365 Mo. 1124, 1132, 293 S.W.2d 429, 435(5) (1956); Swan v. Shelton, 469 S.W.2d 943, 951(6) (Mo.App.1971); In re I.M.J., 428 S.W.2d 18, 22(5) (Mo.App.1968). See also Saville v. Bradshaw, 359 S.W.2d 676, 678-679(2) (Mo. 1962); Farrar v. Moore, 416 S.W.2d 711, 714—715(8) (Mo.App.1967); State ex rel. State Highway Comm’n v. Hill, 373 S.W.2d 666, 668(1, 2), 671 (Mo.App.1963).

In the course of inordinately protracted consideration of this appeal, we have been impelled reluctantly but inescapably to the conclusion that the judgment nisi must be set aside but that we cannot make final disposition of the case on this appeal. This for the reason that on the record here presented we are unable to determine with any degree of confidence in the reasonableness, fairness and accuracy of our conclusion either (a) whether there is any sound legal basis for a monetary recovery by either dentist from the other or (b) if so, on what theory and in what amount. Each of the parties is represented by experienced and capable counsel, and it is neither our function nor our prerogative to suggest possible legal theories.

The judgment for plaintiff is set aside and the cause is remanded to the circuit court for further proceedings and retrial.

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

FLANIGAN, J., not participating.

      . The exact date of the agent’s initial call at Dr. Capoferri’s office is not fixed in the record, but it obviously was prior to January 17, 1964, the date of the agent’s 19-page report concerning Dr. Capoferri’s 1959, 1960 and 1961 individual income tax returns, which was transmitted to Dr. Capoferri by the St. Louis office of the IRS on February 24, 1964. The agent’s report and the letter of transmittal were received in evidence as defendant’s exhibit B.

      . was ^alr y certain” this meeting was ,on April 20, 1964, as shown on “an appointment book in [his] office that is very accurately kept. Dr. Capoferri’s recollec-tlon of the meeting date was April 22, 1964.

      . When the IRS “entered the picture” in the spring of 1964 and the dentists called Miceli, he told them (so he testified) that “you need a tax lawyer ... I couldn’t help you at all”; and, when they “wanted to know a tax lawyer,” Miceli recommended Mr. James D. Shine, Jr.

      . Account Number C & D Dental Associates, Inc. Period Ta Total Balance Interest Applied Due
      10025 Yr. 1960 $755.68 $17.29 $772.97 ©
      10026 “ 1961 855.03 28.12 883.15 ©
      10027 “ 1962 864.44 37.27 901.71 ©
      10028 5- 1-59 12-31-59 744.44 13.83 758.27 ©
      Total applied to C & D Dental Associates $3,316.10
      Robert E. Day
      D-2556 Yr. 1960 3,127.92 18.62 3,146.54 0
      D-2557 “ 1961 4,112.32 25.74 4,138.06 0
      D-2558 “ 1962 3,495.03 30.56 3,525.59 0
      Total applied to Robert E. Day Accounts $10,810.19
      Enzo L. Capoferri
      D-2545 Yr. 1959 2,425.09 13.76 2,438.85 0
      D-2546 “ 1960 1,335.17 7.95 1,343.12 0
      D-2547 “ 1961 1,966.30 0 1,966.30 $507.04
      Total applied to Enzo L. Capoferri $5,748.27
      [Additional figures and computations, some in ink and others in pencil, appearing on this exhibit at the time of trial but admittedly having been placed thereon by Dr. Capoferri, were not offered or received in evidence, and hence are not copied here.]

      . When his counsel inquired whether he knew “to whom this additional assessment applied,” Dr. Capoferri said “I never determined, I assumed that was just additional interest upon all the accounts . . .”

      . The record reflects no inquiry, explanation or assumption concerning the difference between $272.20 and $253.52 (V2 of the $507.04 balance shown on the IRS tabulation).

      . Nothing in the record or any of the exhibits filed here enables us to identify “this accounting” or “this green sheet.”

      . This case was tried some six years later in December 1970 and then taken under advisement by the court.

      . “J received the audit returns from Mr. Stosberg. I have looked them over and the information you desire can only be accurately prepared by an accountant, due to the many transpositions of items.

      “The Corporation’s actual tax, plus the penalties and interest, total $3,316.13. The amount already paid was $9,046.06, an average of $5,729.93, which was applied to your individual accounts. How much of this is yours and how much is Day’s can only be ascertained by audit. I presume you paid one-half the original corporation tax, and figuring it on this basis, each owning one-half, you would each have a credit from the corporation of $2,864.96.
      “In the correction of your individual return you were assessed an additional $5,748.27 and Day $10,810.19. In computing the additional tax, I believe you were given credit for the excess in the corporation payment. If so, your part would be one-half of the corporation tax, $1,658.07, plus $5,748.27, or $7,406.34 and Day’s $12,-468.25. And if you paid $13,725.36 of the total taxes owed, you should be due $6,319.02.

      “I have tried to reach Mr. Rashbaum to obtain his work sheets but to date have not heard from him. I suggest that your accountant take these reports which I enclose herein and audit same for you.” (Emphasis ours)


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Jack E. KLECKER, Plaintiff-Respondent, v. John D. SUTTON et al., Defendant-Appellant.
    No. KCD 26626.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Roger J. Barbieri, Barbieri, Combs & Gotschall, Kansas City, for defendant-appellant.
    Major W. Park, Jr., Gage, Tucker, Hodges, Kreamer, Kelly & Varner, Kansas City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Plaintiff’s suit in the court below was grounded on fraud against a corporate defendant and its officers and agents. Various dismissals and default judgments resulted in the plaintiff’s case being submitted against the individual defendant Sutton alone. The jury verdict was for $15,000 actual damages and $15,000 punitive damages against defendant Sutton. He has appealed. The appeal raises issues concerning the propriety of the plaintiff’s verdict-directing instruction and the instruction on damages. On those issues, the verdict and judgment are reversed and the cause remanded.

This opinion is written on reassignment after a motion for rehearing was sustained. The matters raised in the motion for rehearing and upon resubmission will be adverted to as necessary in the course of this opinion.

Preliminarily to a consideration of the defendant’s claim of error as to the principal instruction, a procedural contention must be resolved. Defendant in his brief here raises three points. The first and third points refer specifically by number to Instruction No. 4 which was the plaintiff’s damage instruction. The first point briefed clearly attacks the damage Instruction No. 4. The last point briefed, while specifically directing attention to Instruction No. 4, is in terms and content an attack on the plaintiff’s verdict directing Instruction No. 2. Paragraph 12 of the defendant’s "motion for a new trial objects specifically to the giving of Instruction No. 2 on the same grounds and in almost identical language with the third point in the defendant’s brief. Despite the misnumbering of the instruction, the plaintiff could not have been misled by the error. That he was not is certain, for plaintiff countered the point and argument of defendant head-on in the first point in his brief. Plaintiff’s contention on rehearing that the original opinion was based on an instruction “not appealed from” is without merit. The parties on the original submission which was on brief alone joined issue on the claim of erroneous submission under Instruction No. 2, and nothing has been presented to indicate that plaintiff was misled to his prejudice by the misnumbering of the instruction in the defendant’s brief.

The defendant’s attack on both the verdict-directing instruction and the damage instruction are essentially claims that the instructions lack evidentiary support. The motion for rehearing referred extensively to record evidence as supporting the submission which was not set forth in .the original opinion. In order to respond to that portion of the motion, a detailed statement of the facts as they were developed in evidence follows: The finding of the jury being for the plaintiff, he is entitled to have all the evidence favorable to his theory and submission and all legitimate inferences therefrom considered to determine if an evidentiary support for the theory submitted can be found.

So considered, the evidence establishes that the plaintiff in response to an advertisement contacted Jake Edwards Old Southern Pit Barbecue System Inc. to investigate a franchise for a “food service.” Plaintiff was by occupation an automobile mechanic and had little or no business experience. His first contact was with a Mr. Hansen described as vice president and the defendant Sutton who was President of Jake Edwards. He was given a brochure which described the offered franchise and quoted a price of $12,500. In this conversation, the plaintiff was told that additionally the “equipment package” would be $14,000. The brochure indicated that financing would be available. Sutton said financing would be available to plaintiff from a bank and that the Jake Edwards Company would purchase the equipment and make the arrangements for plaintiff to make the payments. “In other words the paper would be turned over to me and I would make the payments.” The equipment was to be installed on a turn key basis. There were various other representations made as to commissary service management assistance via computer. By telephone, Sutton suggested a location and, after an inspection and consultation with his wife, plaintiff agreed to the location. Sutton and Hansen then presented a franchise agreement which the plaintiff signed after the price was reduced to $11,000 because as plaintiff testified, “He’d [Sutton] like to get a franchise started.” The price of the equipment package was also reduced to $12,000. Two thousand five hundred dollars was paid by deposit of a certificate representing shares in a mutual fund, the balance of the $11,000 to be paid on the final site selection. A building was in fact selected, a lease between the corporate defendant and the owner of the building executed and assigned to plaintiff at the same rent. This required a cash expenditure of $2,900. Plaintiff then delivered $11,000 and retrieved his mutual funds.

Thereafter, the plaintiff was tendered an equipment package contract which plaintiff testified was satisfactory as to price and equipment but which by a supplemental agreement required that the plaintiff’s franchise be additional collateral for the indebtedness. Plaintiff refused to execute this agreement and around October 1, 1968 retained counsel. This suit was filed in October, 1968.

The evidence concerning the corporate affairs is skimpy. Plaintiff offered the certificate of incorporation showing that Sutton was President and that one Lumby was also an officer. A portion of the corporate minutes was also offered to show that in the fall of 1968 Lumby had misappropriated company funds and that Sutton and the company attorney in October, 1968 recovered $5,000 which was deposited in the company account. Sutton was a required sig-nator on the bank accounts, but checks had been honored without his signature. The amount and nature of these checks was not shown. After Lumby had left the company, Sutton actively managed its affairs. Prom October, 1968 to June, 1969, approximately $3,000 was withdrawn from the corporate account by checks made to cash and signed by Sutton. Sutton made an explanation of some but not all of these checks, and some bore notations of purpose. The exhibits are almost illegible and all the notations cannot be read. Some appear to be related to Sutton’s travel and reimbursement of expenses. His testimony indicates that he was, during that period, involved in an attempt to salvage the interest of the defendant company in an Iowa franchise operation. The corporate defendant was at the time of trial according to Sutton “defunct” having as its only assets the original agreement from Jake Edwards to franchise operations in his name. Except for evidence that Sutton received his stock for services as well as Lumby, there is no evidence of the financial condition of the defendant company prior to October, 1968.

The evidence on the issue of damages is, if anything, more skimpy than that relating to the corporate affairs. Plaintiff testified his franchise was “worthless.” An exhibit was offered which projected earnings on certain assumptions of gross revenue and expense. This was prepared by defendant corporation and furnished plaintiff. There is no evidence of any kind as to the projected sales at the site selected except the plaintiff’s opinion that it was a “good location.” As noted, plaintiff expended $11,000 for the franchise.

The challenged principal instruction, in relevant part, is as follows:

“First, defendant Sutton represented to plaintiff that defendant Jake Edwards Old Southern Pit Bar-B-Que System, Inc., could and would purchase an equipment package and install it for the plaintiff at a cost of $12,000.00, and that defendant Jake Edwards Old Southern Pit Bar-B-Que System, Inc., could and would sell the equipment package to plaintiff on an installment basis at a competitive rate of interest, intending that plaintiff rely upon such representation in purchasing the franchise rights, and Second, the representation was false, and .” (Emphasis added.)

Defendant, in a multiple attack on instruction 2 (erroneously labeled number 4 in both briefs), first asserts that the instruction does not constitute grounds for an action in fraud and does not constitute representation of an existing material fact. Reading this with the argument portion of the brief, it is apparent that defendant is claiming that even if the jury found the facts in accordance with the paragraphs of the principal instruction, as a matter of law, a finding of fraud is not justified. Defendant also asserts that the evidence does not support the submission.

Relying primarily on Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275, 278 (banc 1932), and Yerington v. Riss, 374 S.W.2d 52 (Mo.1964), defendant argues that a case in fraud cannot be made on the basis of a promise even though accompanied by a present intention not to perform the promise. Plaintiff counters with what he has denominated an exception to the rule of Reed and Yerington. Citing Nichols v. Hendrix, 312 S.W.2d 163 (Mo.App.1958), plaintiff claims that defendant’s superior knowledge makes a promise of future performance actionable.

Since the submission of this case, Brennaman v. Andes & Roberts Brothers Const. Co., 506 S.W.2d 462 (Mo.App.1973) was decided. Brennaman recognized the apparent divergence in the case law and made an extensive analysis of the cases. That analysis demonstrates that the difference in holdings rests upon factual differences. Vital to recovery on the theory of an actionable misrepresentation of an existing purpose of state of mind is a current intention by the promisor at the time the agreement is made not to perform. Failure of performance is insufficient to establish such intent. Dillard v. Earnhart, 457 S.W.2d 666, 670 (Mo.1970). Ill Restatement of Torts, § 530, comment a at 89.

What must be proven to establish a case of fraud is, of course, but one way of stating the legal elements of such an action which must appear as the substantive elements of an appropriate instruction.

The submission set forth above, that defendant could and would, is a submission that the defendant Sutton’s representations were first, that the corporate entity had the capability to perform and the intention to perform. The “second” portion requires a finding that these representations were false and “third” that defendant knew they were false.

The instruction is modeled on MAI 23.05 which is intended to embrace the conventional submission of fraudulent misrepresentation of an existing fact. The fact that the instruction is so modeled is drawn from the remarks of the trial judge since the instructions in the transcript do not, as Rule 70.01(d), V.A.M.R. requires, bear the designation as to source and modification. The responsibility for the accuracy of the transcript and of compliance with the rules regarding transcripts rests upon counsel who approve the transcript. The annotations and comments in MAI under MAI 23.05 do not refer to the theory of fraud in misrepresenting an existing purpose or state of mind recognized in Brennaman and III Restatement of Torts, § 530, comment a at 69. The parties to this appeal do not raise the issue of the necessity of an instruction under that theory requiring a finding on the issue of falsity at the time of the making of the representation. Such a requirement would seem to be implicit in circumstances where the representation is the promise of an act to be performed in the future. So also with respect to capability.

That issue need not be reached or decided in this opinion but is mentioned to prevent reliance upon the form of this instruction in future submissions upon the theory of Brennaman and the Restatement.

The real issue to be reached and decided on this appeal is the sufficiency of the evidence to sustain the submission of a present intent and a present capability to perform the act represented. Defendant, albeit awkwardly, raises in his brief the sufficiency of the evidence to show fraud. The fact that subsequent inability to perform is demonstrated does not sustain an action for fraud based on a misrepresentation of a present intent to perform which is made falsely and with knowledge of its falsity. Dillard v. Earnhart, supra. The record is barren of direct evidence of the intent of the corporate entity not to perform at the time the defendant Sutton made the representation that the corporate entity would provide the equipment package. There is, of course, some evidence they could not subsequently do so. As noted above, that does not demonstrate they “would” not.

The fact that there may not be specific evidence of such alleged misrepresentations would not be fatal if enough proof were offered to permit the necessary inference of the corporate intent at the time of the transaction. This because as plaintiff asserts such an inference must inevitably be the only way to prove such fraud. Salmon v. Brookshire, 301 S.W .2d 48, 53 (Mo.App.1957). Taking the evidence in the light most favorable to the plaintiff and drawing all favorable inferences to support the verdict, the question is very close on this record as to the intent to perform. Had the submission been upon the single issue of a promise of future performance, the evidence might support the submission. The submission offered by the plaintiff was clearly and unequivocally a conjunctive submission of two issues, first, that the corporation would, second, that the corporation could perform.

Thus, as posited.in the instruction, the evidence must support the finding of the falsity, not only as to the question of intention but also capability. Such falsity as to capability must appear at the time the misrepresentation occurred. The proof here, regardless of what inference might arise as to the intention of the company, falls far short of proof that the acts specified were incapable of performance at the time the statement was made.

The plaintiff proved by his own evidence that an “equipment package” was tendered to him at the specified price. True, the arrangement was not in the form of a sale too the plaintiff by the defendant Sutton’s company and, thus, was not precisely in accord with the claimed representation set forth in the instruction. The plaintiff did not object to that, however; his claim was that he did not want to secure the debt for the equipment with his franchise rights. The question of the security for the debt is not a part of the representation made under the evidence in this record. There is no proof that the defendant Sutton’s company could not have complied with the representation as to the form of the sale. There is, likewise, a total absence of any proof that the defendant Sutton knew of any incapability of his employer to perform at the time of the alleged statements to the plaintiff. Again, the fact of nonperformance does not prove the lack of capability. The reliance upon the facts relating to the issuance of stock for services and the subsequent defalcation of Lumby and expenditures of corporate funds by means of cash checks all at a later time do not, without further supporting evidence, demonstrate an inability to perform. The defendant’s contention that the verdict must fail since the submission was not supported by the evidence must be sustained.

Since the verdict is. reversed and the cause remanded, the only other points raised by defendant need be dealt with only insofar as may be necessary to prevent repetition of error on retrial.

Defendant has challenged the use of the plaintiff’s damage instruction which the parties agree constituted a direction to the jury to assess the plaintiff’s damage on the benefit of the bargain rule of damages in fraud cases. The instruction as it appears in the record is again violative of Rule 70.01(d) since its origin is not shown upon the record copy of the instruction. Resorting to the trial judge’s comments and an examination of MAI 4.03, it does in form follow MAI 4.03 and correctly submits a measure of damages under the benefit of the bargain rule. Reynolds v. Davis, 303 Mo. 418, 260 S.W. 994 (1924). The difficulty is again evidentiary. The verdict, as noted, was for $15,000 actual damages.

Plaintiff first asserts that the verdict has evidentiary support upon an analysis of the evidence respecting value. He argues, on the basis of a statement of prospective income furnished plaintiff, that plaintiff would have been in a business “earning $24,000 a year” if the defendant had performed. This he contends is evidence of value, as is the contract price of $11,000 for the franchise rights, citing Smith v. Tracy, 372 S.W.2d 925 (Mo.1963). Plaintiff then reasons that if he had acquired the second equipment package at the offered price of $14,000 instead of the $12,-000 agreed to, he would have been damaged an additional $2,000. Plaintiff does not attempt the impossible by showing how the jury arrived at a $15,000 verdict under this evidence. Plaintiff must, under this analysis, assume, that nothing of value was received. When this is assumed, the damages could not exceed $11,000 if the sales price be considered as indicating the value if the franchise had been as represented since he did not, in fact, purchase any equipment. There is nothing in this record to show that the sales price was related to the value if the franchise had been as represented. Dettler v. Santa Cruz, 403 S.W.2d 651, 656 (Mo.App.1966). Smith v. Tracy, supra, which did take the sales price as evidence of value as presented, is distinguishable since no evidence of value in excess of the sales price was claimed or necessary to support the de novo review by the appellate court which ultimately set the damages. Plaintiff in this case must rely on some evidence of value in excess of purchase price to support the verdict.

The exhibit referred to by plaintiff to show earnings of $24,000 a year was a prognostication of profits on the assumption of a certain level of gross income. There is not one shred of evidence to indicate what the gross income would have been if the plaintiff had, in fact, commenced operations. There is no evidence which would relate this figure of estimated profit to the value of the business. There being no evidentiary support, the submission was error.

Plaintiff also attempts to justify the submission by a recitation of the various items of general damages, that plaintiff received nothing for his $11,000, that he would receive nothing in the future, that he had been without the use of his money and that he would lose the profits “represented” to him. The evidence did not contain any reference to the monetary value of these items of damage even if they could properly be considered by the jury under the damage theory adopted. It is clear that these items were not appropriate under the instruction. Salmon v. Brookshire, 301 S.W.2d 48, 55 (Mo.App.1957).

Upon the record presented in this case, the evidentiary failure would require a reversal, but nothing appears here that requires a finding that plaintiff could not support by appropriate evidence a submission on that theory.

The judgment for plaintiff is reversed and the cause remanded for a new trial.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Lorenzo GILYARD, Defendant-Appellant.
    No. KCD 26669.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Joel Pelofsky, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Charles B. Blaekmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

By jury verdict, the defendant was convicted of forging, using and uttering a money order in violation of Section 561.011 RSMo 1969, Y.A.M.S. He was sentenced to six years confinement in the Department of Corrections. The judgment of conviction is affirmed.

Defendant’s motion for new trial and notice of appeal were timely filed. The defendant alleges three points of error in the trial court. First, he claims that the State’s evidence was insufficient to identify beyond a reasonable doubt the defendant as the person who negotiated the money order. Second, defendant claims that the submission under instruction No. 3 was erroneous because the evidence was insufficient to persuade the jury beyond a reasonable doubt that defendant knew the money order was forged. Third, the defendant claims the trial court erred in allowing the State to present evidence of defendant’s prior convictions to the court in chambers after the State had rested its case. At the trial, the defendant did not present evidence.

On February 11, 1972, the defendant negotiated for cash a money order at the Bee Jay Food Mart. The money order was one of several blank money orders issued by Republic Money Orders, Inc., which had been stolen from a Safeway grocery store in Kansas City, Missouri, on October 16, 1970. Safeway, Inc., was the issuing agent of the Republic money orders. When the defendant cashed the money order, it was made payable in the amount of $70.30 to a “Hershell Duncan.” The money order was signed by a purported maker, “Hubert Myars.” No evidence was presented indicating who “Duncan” or “Myars” were or whether they exist at all. The owner of the Bee Jay Food Mart testified that he saw the defendant endorse the name “Hershell Duncan” on the money order. He testified that he then requested the defendant to write his address below the endorsement, which the defendant did. The owner said that he then asked the store security guard if he knew the defendant and that the guard replied, “Yes, he’s alright.” The owner then cashed the money order for the defendant. He said, “So I went on and cashed it, no doubt in my mind it wasn’t a good check . . . good money order.” The Columbia Union Bank refused to honor the money order when presented for deposit at that bank. The Bee Jay Food Mart has never received payment for the money order.

The defendant’s first point on appeal is that the evidence was insufficient to establish “the defendant as the person negotiating the money order beyond a reasonable doubt.” In determining the sufficiency of the identification evidence, all evidence and inferences in favor of the verdict will be taken as true. State v. Harris, 452 S.W.2d 577 (Mo.1970). The defendant argues that the failure to maintain a device for photographing called a regiscope and the statement by the store security guard that the individual who was cashing the money order was “alright” create doubt as to the identity of the defendant. The store security guard did not testify.

At the trial, the store owner unequivocally identified the defendant as the one who cashed the money order in question in his store and in his presence. The owner testified that he had seen the defendant in the store on two prior occasions. He said that on one prior occasion the defendant was with two younger women. He said that the three purchased some merchandise, then left the store. The owner identified the defendant at the preliminary hearing, several months after the incident, as the person who cashed the money order. The owner also picked the defendant’s picture out of several shown to him by a detective soon after the alleged crime occurred. The store owner also described to the detective the approximate height, weight, age, and race of the individual who cashed the money order.

The store owner clearly remembered the circumstances surrounding the negotiation of the money order. He said that after the defendant had endorsed the instrument, he returned it to the defendant so he could write his address below his endorsement. He also testified that the defendant signed his endorsement with a pen hanging on the outside of the check cashing booth, and that he wrote his address with a loose pen which the owner gave to him for the purpose of writing his address below his endorsement.

Because the identification by the store owner was unequivocal, because his memory of the circumstances was clear, and drawing all the favorable inferences to the verdict, the evidence is sufficient to establish beyond a reasonable doubt that the defendant is the individual who negotiated the stolen money order.

The defendant’s second point is essentially that the evidence as a whole is insufficient to support the verdict. Of course, all the evidence and inferences favorable to the verdict will be taken as true. State v. Harris, supra.

These facts are clear: (1) the money order was one of several stolen from a Safeway store in 1970, in Kansas City, Missouri; (2) the money orders were blank when stolen, that is, the lines indicating the maker, the date, and payee were not filled; (3) the money order was complete when negotiated by the defendant: it purported that the maker, “Hubert Myars,” whose name was written in the blank designated “sender,” had made the instrument payable to “Her-shell Duncan” for $70.30 on February 9, 1972; (4) the defendant, Lorenzo Gilyard, endorsed the name “Hershell Duncan” on the back of the instrument; (5) the Bee Jay Food Mart gave the defendant $70.80 cash in exchange for the instrument; (6) the Columbia Union Bank refused to honor the instrument when the Bee Jay Food Mart presented it for deposit.

The verdict directing instruction was instruction No. 3:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 11th day of February, 1972, in the county of Jackson, State of Missouri, the defendant used as true a certain writing, to-wit: a money order drawn on the Republic Bank of Dallas in the sum of Seventy dollars and thirty cents ($70.30) payable to Hershell Duncan, and Second, that the document was of a kind commonly relied upon in business or commercial transactions, and
Third, that it had been so made that it purported to havé been made by authority of one that did not have such authority, and
Fourth, that the defendant knew that it had been so made, then you will find the defendant guilty of forgery. However, if you do not find and believe
from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

Clearly, the defendant used the money order as if it were true when he negotiated it and equally clear is the fact that the document was of a kind commonly relied on in business transactions.

The nub of defendant’s contention is that the evidence fails to prove that the instrument purported to have been made by authority of one that did not have such authority. Defendant asserts that “Safeway is the maker and clearly had authority.” The argument fails in its premise. Safeway is not the “maker” of the money order. Curiously, the issue has not been raised in Missouri but well reasoned authority supports the proposition that the maker of a money order is the one who purchases the instrument; only he has the authority to sign the money order in the blank on the money order designated “sender.” Garden Check Cashing Service, Inc. v. First National City Bank, 18 N.Y.2d 941, 277 N.Y.S.2d 141, 223 N.E.2d 566 (1966). State v. LaRue, 5 Wash.App. 299, 487 P.2d 255 (1971). A plethora of Federal authority holds that any completion of a blank stolen money order thereby lending authenticity to it constitutes a false making. Castle v. United States, 287 F.2d 657 (5 Cir.1961); United States v. Di Pietto, 396 F.2d 283 (7 Cir.1968). In United States v. Smith, 426 F.2d 275, 276 (6 Cir. 1970), the court held:

“Accordingly, the important inquiry in the present case is whether the completion of the blank money orders constituí-ed a false representation or a false execution. We hold that it constituted a false execution. The money orders were not, at the time of the thefts, evidence of an obligation on the part of the issuing company. It was necessary to insert the agent’s symbol, an amount, a sender’s name, and the name of the payee in order to create an obligation. This distinguishes Gilbert [Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750] where the refund checks were genuine written evidence of obligations and required only an endorsement to be cashed. Here, the insertion of the necessary information on the blank money orders constituted a false making within the meaning of the statute.”

See also United States v. Halfen, 467 F.2d 127 (5 Cir. 1972).

Necessary to the holding of these cases is the determination that the one with authority to “make the instrument” is the lawful holder or his agent. The instant money order purports to have been made by the authority of “Hubert Myars,” but neither “Myars” nor anyone had the authority to make the stolen instrument by signing it.

It was also necessary as defendant contends for the State to prove that the defendant had knowledge that the money order as completed was false at the time that he negotiated the money order. In McGee v. United States, 402 F.2d 434 (10 Cir.1968), several blank American Express money orders were stolen from a Parkview Drug Store in Kansas City, Missouri. The defendant in that case negotiated three of the stolen money orders to various Kansas City businesses. As in the instant case, that defendant endorsed the money orders with a name other than his own. In determining that the defendant had knowledge that the instruments were falsely made, the court said, l.c. 438, “once the government established that the defendant falsely endorsed the bogus securities, it was entirely reasonable for the jury to infer guilty knowledge. There being no evidence to the contrary, it therefore remained reasonable for the jury to conclude as it did.” When the facts show that a defendant used as true an instrument which is falsely made, as is the case here, “an inference arises that the person who uttered the cheek as genuine either forged the instrument, or knew it to be forged, unless the uttering or forgery is explained satisfactorily.” State v. Massey, 492 S.W.2d 48 (Mo.App.1973); State v. Gantt, 504 S.W.2d 295 (Mo.App.1973); United States v. Bradford, 423 F.2d 681 (6 Cir.1970); United States v. Tasher, 453 F.2d 244 (10 Cir. 1972); United States v. Greene, 442 F.2d 1285 (10 Cir. 1971).

The defendant also contends in the argument portion of his brief that instruction No. 3 is erroneous because it “fails to require the jury to find that the uttering was made with intent to defraud.” The motion for a new trial did not raise this issue. Even if the point were properly preserved, the instruction is MAI CR 10.14 and such a claim of error is not cognizable here. State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974). The defendant’s reference to the plain error rule cannot avail to broaden the power to review the instruction promulgated by the Supreme Court.

Defendant claims that the trial court erred in permitting the State to present evidence of defendant’s prior convictions to the court in chambers after the State had rested its case. The evidence of prior convictions shall be presented to the court outside the hearing of the jury and prior to the submission of the case to the jury. Section 556.280(2), RSMo 1969, V.A. M.S. In effect, the court granted leave to reopen; that power is discretionary. No prejudice to the defendant appears from that discretionary ruling.

Judgment affirmed.

All concur.


author: SHANGLER, Judge.

text:
    MID-CONTINENT NATIONAL BANK, Plaintiff-Appellant, v. BANK OF INDEPENDENCE, Defendant-Respondent.
    No. KCD 26779.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Rehearing Denied June 2, 1975.

      William F. Mauer, Kansas City, for plaintiff-appellant.
    Billy S. Sparks, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for defendant-respondent.
    Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
   SHANGLER, Judge.

This action is on a cashier’s check for $15,370 issued by plaintiff Mid-Continent National Bank to Mildred Ortega [now Bau-man] and negotiated to the defendant First National Bank of Independence, which obtained payment upon presentment of the check. The cashier’s check had been purchased by Ortega with her personal check knowingly drawn against insufficient funds in the defendant Bank of Independence. The plaintiff bank sought recovery of $12,-870, the balance remaining after Ortega reimbursed $2500, on the theory that the defendant Bank of Independence was not a holder in due course of the instrument because it took with notice of the Ortega fraud. Trial to the court resulted in judgment for the defendant Bank of Independence.

The trial was upon deposition testimony and evidence stipulated into the record discursively by counsel. On this appeal, the conclusiveness of the stipulation has come into question, but this much remains undisputed:

The litigation results from the defalcations of Ms. Ortega while employed as a teller by the defendant Bank of Independence from December of 1965 until June 5, 1969. Among her duties at the collection window was to cash bonds, issue cashier’s checks, pay and receive. The duties of this window were shared by Dorothy Walker, Assistant Cashier to whom Ms. Ortega was nominally subordinate. Ms. Walker was under the direction of Don Meyers, the Cashier. Through the use of false entries [which were never fully reconstructed], Ms. Ortega managed to conceal a shortage in her drawer which, by June 3,1969, amounted to $15,370.00. This shortage was not detected by twelve successive Federal, State and internal audits conducted between January 3, 1967 and August 9, 1968.

■ While employed by the Bank of Independence, Ms. Ortega became acquainted with Linda McCrary, who subsequently left the defendant bank for employment as a teller with the Mid-Continent Bank. Ms. Ortega testified that June 3, 1969, was the last work day before her vacation. After the close of business, she inquired of Ms. McCrary whether she would issue a cashier’s check for her personal check drawn on the Bank of Independence. Ms. McCrary agreed she would. [The parties have stipulated that, if she testified, Ms. McCrary would either deny the conversation altogether or state that she did not remember it.] On the morning of June 4, 1969, the first day of her vacation, Ms. Ortega presented her personal check for $15,370 drawn on the Bank of Independence to Ms. McCrary at the Mid-Continent Bank for a cashier’s check in like amount to her order. Ms. McCrary prepared the check, presented it to an officer for signature, and thus validated, delivered the check to Ms. Ortega.

Later that same day, Ms. Ortega delivered the cashier’s check, endorsed in blank, to Ms. Walker who returned to her from the drawer the personal check in the same amount drawn by Ms. Ortega on her account in the Bank of Independence. According to the bank records [as stipulated but not displayed at the trial or on this appeal] and the testimony of Ms. Walker, Ms. Ortega placed the cashier’s check in the drawer, informed Ms. Walker that an entry on the blotter which showed a transfer of cash to the window of another teller had been made in error and asked that the entry be corrected.

The cashier’s check was forwarded through banking channels for presentment and acceptance and was paid by the plaintiff Mid-Continent Bank. The check which Ms. Ortega drew to purchase the cashier’s check was dishonored by the Bank of Independence for want of sufficient funds.

Ms. Ortega was charged by the United States with false entries and, on April 10, 1970, was sentenced to probation for a term of five years on her plea of guilty.

The balance of the evidence, the deposition of four witnesses, is discordant.

The plaintiff Mid-Continent Bank [appellant here] contends that the defendant Bank of Independence did not take the cashier’s check for value and without notice of defenses against it, and thus was not a holder in due course of the instrument within § 400.3-302, RSMo 1969, V.A.M.S. On these critical issues, the deposition testimony of the parties stands in stark dispute.

The deposition testimony of Ms. Ortega was that for over two and one-half years she had made false entries on the daily blotter which resulted in a growing shortage in her window. In order to balance the blotter, she placed in the drawer and entered on the debit side of the daily transaction sheet checks of her own in the amount of the shortage drawn on insufficient funds in accounts at the Bank of Independence and Mid-Continent.

Ms. Ortega testified that it was the practice of the Bank of Independence not to return checks drawn by its employees on insufficient funds. Each day the Bank of Independence was furnished a computer analysis of all insufficient fund checks presented there, identified by drawer and account number. Although her name frequently appeared on that list, Ms. Ortega was never called on by the officers of the bank to make explanation or redemption, even though as much as $1,000 in insufficient funds checks might be shown against her account at any given time. Even the computer debit of two dollars against an account for each insufficient item was reversed as to accounts of bank employees by manual entry of recredit of the charge.

All insufficient fund items were routed through the transit department, those written by Ms. Ortega were not charged against her account, but were forwarded to her window, treated as incoming cash, were placed in her drawer and debited on her blotter as a receipt of money. The insufficient funds thus substituted for cash gave the verisimilitude of a balanced blotter. Ms. Ortega testified that only she and Ms. Walker knew the true condition of the drawer.

As to the operation of the window, Ms. Ortega testified that both she and Ms. Walker proved the daily blotter; they took turns counting the drawer, one counted the checks while the other counted the cash. Ms. Walker testified, however, that while she helped to count the checks or the cash in the drawer, Ms. Ortega almost always made the entries on the blotter. She denied that she had ever seen any cheeks written by Ms. Ortega in the drawer. It was the testimony of Ms. Ortega, on the other hand, that Ms. Walker not only knew of her defalcations [from her knowledge that Ms. Ortega was holding her own insufficient funds checks in their drawer — some for as long as two and one-half years], but that they had discussed the drawer shortages on several occasions. Then, on the evening of June 3, 1969, Ms. Walker told Ms. Ortega that she was going to have to do something about the growing shortage, one way or another. Ms. Ortega replied that she intended to purchase a cashier’s check to replace her personal check in the drawer by writing a personal check on the Bank of Independence. Ms. Ortega did not explicitly tell Ms. Walker that she did not have sufficient funds on hand at the Bank of Independence, but that Ms. Walker knew this, since a cashier’s check would not have been necessary had the other checks been sufficiently funded.

According to Ms. Ortega, she had placed her personal check for $15,370 in the drawer to cover the accumulated shortage; the check was entered as a debit on the blotter. Then, on June 4, 1969, the first day of her vacation, Ms. Ortega delivered the cashier’s check to Ms. Walker who returned the Ortega personal check from the drawer. Ms. Ortega stated that no words were exchanged between them. She insisted, however, that she did not instruct Ms. Walker to change the amount shown as cash on the blotter from the night before, since such an entry would result in a discrepancy between holdover cash figure from the window blotter and the general books of the bank.

Ms. Walker recounted a different narrative of the critical events. She had worked at the Bank of Independence for thirteen years and was then the Assistant Cashier. She and Ms. Ortega shared the collection window and drawer. Ms. Walker never saw any checks in the drawer written by Ms. Ortega and disclaimed any awareness that Ms. Ortega was using her checks to cover shortages. Nor did she remember the conversation of June 3, 1969, when she purportedly importuned Ms. Ortega to correct the drawer. She did remember that on June 4, 1969, Ms. Ortega came to the window and placed the cashier’s check in the drawer while Ms. Walker was engaged with customers. As she recalled it, Ms. Ortega told her that the amount of the check had been mistakenly charged to another window, No. 6, and that the entry was to be scratched from the blotter of their window, No. 8. Ms. Walker acknowledged she had seen computer lists of depositors whose checks had been returned because of insufficient funds on which the name of Ms. Ortega occasionally appeared, but she did not consider it her duty to inquire of her about them.

The cashier of the Bank of Independence, Don Meyers, gave his deposition testimony. The bank investigation disclosed that on June 3, 1969, the day before the cashier’s check was placed in the drawer of Window No. 8, Ms. Ortega had transferred $15,370 from her blotter to Yíindow No. 6. Had this transfer of funds not been shown, the shortage in the Ortega window would have appeared. The bank cashier conceded that had Ms. Ortega been covering shortages with her personal checks as she contended, then discovery of these checks in the drawer would give rise to suspicion, for it was not common practice for tellers to write checks in their own windows. Actually, investigation never disclosed the method used by Ms. Ortega to create and conceal the defalcations.

On this evidence, the court found judgment for the Bank of Independence, but entered no findings of fact or conclusions of law. Accordingly, we deem the factual issues to have been found in accordance with the result reached. Rule 73.01(b), V.A.M.R. The respondent suggests that Rule 73.01(3)(b) requires our de novo review to defer to the facts found by the trial court. The matrix of our factual determination, however, is a stipulation and deposition testimony, and because no oral testimony was presented, we enjoy the same coign of vantage to assess credibility as did the trial court, thus the principle of deference does not apply. Meyers v. Smith, 375 S.W.2d 9, 13[1] (Mo.1964).

There is no doubt that when Ms. Ortega negotiated the cashier’s check by endorsement, the respondent Bank of Independence became a presumptive holder in due course of the instrument within the meaning of §§ 400.1-201(20) and 400.3-202(1). It is the contention of Mid-Continent, however, that the Bank of Independence, through its agent Ms. Walker, had notice of the fraudulent procurement of the instrument, and thus did not achieve the status of holder.

A holder in due course is defined by § 400.3-202 as one who takes the instrument

(a) for value
(b) in good faith
(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

This definition is to be read in pari materia with § 400.3-304

(1) The purchaser has notice of a claim or defense if
(a) the instrument is so incomplete, bears such visible evidence of forgery or alteration, or is otherwise so irregular as to call into question its validity, terms or ownership or to create an ambiguity as to the party to pay; or
(b) the purchaser has notice that the obligation of any party is voidable in whole or in part, or that all parties have been discharged.

A person has notice of a fact [by the definition of § 400.1-201(25)] when

(a) he has actual knowledge of it; or
(b) he has received a notice or notification of it; or
(c) from all the facts and circumstances known to him at the time in question he has reason to know that it exists.

This section is declaratory of established Missouri law that nothing short of actual knowledge or bad faith will defeat the title of a holder in due course, although actual knowledge may be inferred from the facts and circumstances surrounding acquisition of the instrument, but not from circumstances which would merely put a reasonable prudent person on inquiry. Local Finance Company v. Charlton, 289 S.W.2d 157, 160[1, 2] (Mo.App.1956); McConnico v. Third National Bank in Nashville, 499 S.W.2d 874, 884[8] (Tenn.1973).

The cashier’s check was regular on its face, thus the question is whether the Bank of Independence had notice that the obligation of Mid-Continent on the instrument was voidable within the meaning of § 400.3-304(l)(b) due to its fraudulent procurement. In the resolution of this issue we take into account that the issuance of the cashier’s check was an engagement by Mid-Continent to pay the instrument according to its tenor. § 400.3-413(1). The Bank of Independence urges that this engagement, that funds are on hand to pay the instrument, and that it will be paid, encourages faith in the validity of the instrument and so improves its negotiability. 10 C.J.S. Bills and Notes § 5. This, however, merely begs the question of whether the particular holder, Ms. Walker, took the instrument with notice of its fraudulent procurement. On principles of agency, of course, the knowledge of Ms. Walker while acting within the scope of her authority as Assistant Cashier became the knowledge of the Bank of Independence. Ronchetto v. State Bank of Bevier, 227 Mo.App. 83, 51 S.W.2d 174, 177[1] (1932).

The grant of judgment for the Bank of Independence imports a finding that Ms. Walker received the instrument without knowledge of its fraudulent procurement.. We do not accept that presumptive finding of fact. Our review of the record accords credibility on this issue to Ms. Ortega as against the variant testimony of Ms. Walker. The reasons which might induce Ms. Walker to deny knowledge of the Ortega defalcations and of the infirmity in the instrument — the threat of personal and criminal liability — do not bear on the testimony of Ms. Ortega. Her criminal liability has already been adjudicated and her personal liability cannot be affected by which bank may bear the loss. She owes either to Mid-Continent for her fraudulent procurement of the check, or to the Bank of Independence on her endorsement under § 400.-3-414.

The credibility we accord to Ms. Ortega allows these fair inferences from the evidence: Ms. Walker was aware of the shortages in the window shared with Ms. Ortega and acquiesced in the schemes to cover them. She knew that the blotter was being kept in balance by the ruse of the insufficient funds checks. When she became restive about the growing shortages in the drawer, she pressed Ms. Ortega to do something about the matter and, the next day, Ms. Ortega responded by the procurement of the cashier’s check. While there was no direct evidence that Ms. Walker knew that the personal check used by Ms. Ortega to purchase the cashier’s check was drawn on insufficient funds, the actual knowledge of this fact by Ms. Walker may be inferred: Ms. Walker had seen the name of Ms. Ortega published on several computer lists of checks returned for insufficient funds; she knew that Ms. Ortega intended to purchase the cashier’s check with her personal check at the very time the drawer held Ortega checks written against insufficient funds and that the blotter was kept in balance by that subterfuge. Thus, the sheer size of the cashier’s check, delivered and displayed to her, taken in conjunction with these other circumstances constitutes actual knowledge of a fraudulent procurement which rendered the obligation on the instrument voidable.

At the least, this evidence proves that the instrument was not taken in good faith by the Bank of Independence within the definition of § 400.1-201(19)

“Good faith” means honesty in fact in the conduct or transaction concerned.

This test does not require the holder of an instrument regular on its face to inquire as to possible defenses unless the facts known to the holder are such that the failure to inquire discloses a desire to evade knowledge for fear it would reveal a defense to the instrument. General Investment Corp. v. Angelini, 58 N.J. 396, 278 A.2d 193, 196[l-6] (1971); Suit & Wells Equip. Co. v. Citizens Nat. Bank of So. Md., 263 Md. 133, 282 A.2d 109, 112 (1971).

If we must assume that the evidence does not prove that Ms. Walker, and hence the Bank of Independence, did not have actual knowledge of the infirmity in the instrument, then it was a willful ignorance prompted by her desire to avoid knowledge of a fact which her previous connivance must have given her cause to suspect. Slaughter v. Jefferson Federal Savings & Loan Association, 361 F.Supp. 590, 598[6] (U.S.D.C. D.C.1973).

We have determined that the Bank of Independence took with notice and in bad faith, thus we need not assess the validity of the contention that the instrument was taken by the Bank of Independence in payment of the debt due from Mrs. Ortega [notwithstanding the defalcations were not then known to the bank] and therefore gave value under § 400.3-303.

Bereft of the status of holder in due course, the Bank of Independence cannot claim the benefit of § 400.3 — 418 which provides that “payment or acceptance of any instrument is final in favor of a holder in due course, or a person who has in good faith changed his position in reliance on the payment”. This provision follows the balancing of equities rule of Price v. Neal, 3 Burr. 1354 (1762), whereby the drawee who accepts an instrument bearing the forged signature of the drawer is bound on his acceptance because he is deemed to be in a superior position to detect the forgery. The comments to this section, however, expressly inform that if payment is made to one not a holder in due course because, he has either given no value or taken with notice or in bad faith, the payment is not final because he has no equities as against the drawee. This rule controls here since the Bank of Independence is neither a holder in due course, nor has it changed position in reliance on the check since it had already long before suffered its loss at the hands of Ms. Ortega. For this reason, it is of no avail for the Bank of Independence to complain that it was the negligence of Mid-Continent which made possible the issuance of the cashier’s check.

The judgment is reversed and remanded with directions to enter judgment for appellant Mid-Continent National Bank in the sum of $12,870.00.

All concur.