author: NYE, Chief Justice.

text:
    Gary WISE, Appellant, v. Frank I. PENA, M. D., Appellee.
    No. 1144.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 19, 1977.
    Rehearing Denied June 9, 1977.

      Knox Jones, McAllen, for appellant.
    Asa V. Bland, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellee.
   OPINION

NYE, Chief Justice.

This is a cause of action for damages for fraudulent misrepresentations in a real estate transaction. Appellee Dr. Frank Pena brought suit in the trial court against Gary Wise, Charles Haywood and John Western for fraudulent misrepresentations regarding the lease purchase of the Queen Isabel Inn in Port Isabel. Trial was to a jury. Upon return of the jury verdict, judgment was entered for Pena against Wise and Western for $27,000.00 actual damages, plus $8,000.00 punitive damages and in favor of Pena and against Haywood for $14,676.00. In addition, the trial court ordered Haywood to convey the real property in question to Pena. Only Gary Wise has perfected his appeal to this Court.

Although there were many disputed issues during the trial, the following is a fair summary of the facts which lead to the litigation now before this Court. In August of 1973, Gary Wise and John Western approached Dr. Frank I. Pena concerning the possible purchase by Pena of the Queen Isabel Inn in Port Isabel. Prior to this meeting, Western had received the consent of John Haywood, the owner of the Inn, to sell the property for $203,000.00, $60,000.00 as a down payment and the assumption of an outstanding Small Business Association loan of $143,000.00. Mr. Western was not a licensed real estate agent or broker. Western then contacted Wise, who was a licensed real estate broker, about a prospective purchaser of the property. Wise suggested Pena for.whom he had previously bought and sold property and who was his partner in the ownership of an apartment complex and a grove. At the meeting between Wise, Western and Pena, a schedule of income and expenses was presented to Pena which showed that the property was generating a net income of $37,025.00 per year. It was represented to Dr. Pena, however, that the purchase price of the property was to be $230,000.00 with $87,000.00 as the down payment and the balance to be the assumption of a $143,000.00 S.B.A. loan.

Dr. Pena tentatively agreed to purchase the property at this price, subject to obtaining the necessary financing. At this time the possibility of setting up the purchase as a lease-purchase was also discussed so that Dr. Pena could expense the down payment as rental payment for tax purposes. Dr. Pena quickly arranged for financing of the down payment through the McAllen State Bank. A few days later, the transaction was closed at the office of the Honorable Perry Jones, who was Pena’s attorney at that time. Dr. Pena then entered into a lease-purchase agreement with Haywood wherein Pena paid $87,000.00 as a down payment and assumed the $143,000.00 remaining outstanding on the S.B.A. loan. The option portion of the agreement provided that the down payment was to be applied to the purchase price if the option to purchase was exercised within two years.

After the closing of the deal, the $87,-000.00 was distributed, $60,000.00 went to Haywood as the down payment and the remaining balance of $27,000.00, went $17,-000.00 to appellant Wise and $10,000.00 to John Western. Shortly thereafter, Dr. Pena visited the property and soon discovered several discrepancies between the schedule of income and expenses and the actual income being produced by the property. Dr. Pena found out that the rents and income as represented were not true. Dr. Pena then complained to Wise about the discrepancies. About two weeks after the original agreement had been executed, an addendum to the lease-purchase agreement was executed between Dr. Pena, the buyer, and Haywood, the seller. Neither appellant Wise nor Mr. Western were parties to the addendum agreement. This addendum agreement provided that Haywood would supplement any deficiencies in rental income for nine months and would repay the $87,000.00 down payment if Pena did not exercise his option to purchase within 24 months. However, Haywood defaulted and no supplemental payments were made. On January 29, 1974, this suit was filed.

Pena’s suit" sought to rescind the agreement for fraudulent misrepresentations, and to have his $87,000.00 returned. In the alternative, Pena sought to recover actual and exemplary damages under § 27.01 of the Business and Commerce Code from Wise and Western, plus the amount guaranteed by Haywood in the addendum agreement and a warranty deed on the property from Haywood.

Based on these pleadings, the jury made the following findings:

1) That Wise and Western made a false representation to Pena of the lease-purchase price of the property.
2) That Wise and Western made a false representation to Pena as to the income from the Hotel prior to execution of the lease-purchase agreement.
3) That these representations were made by Wise and Western to induce Pena to enter into the lease-purchase agreement.
4) That Pena relied on these representations.
5) That the representations were willfully made by Wise and Western to Pena.
6) That Pena did not know the income from the Hotel prior to execution of the lease-purchase agreement.
7) That Wise did not knowingly benefit financially from the false representations by Western of the lease-purchase price or the false representation by Western as to the income of the Hotel.
8) That Western did knowingly benefit financially from the false representations by Wise as to the lease-purchase price and the income of the Hotel.
9) That Haywood owed Pena $10,000 as provided in the addendum agreement.
10) That the difference between the value of the property as represented to Pena and its actual value was $27,000.
11) That Pena was entitled to $8,000 exemplary damages.

Appellant does not attack the findings of the jury concerning the fraud or the amount of the damages. Appellant in his points of error one and two does complain that the trial court erred in overruling his motion for summary judgment and his motion for judgment non obstante veredicto predicated on the theory of ratification and waiver by Dr. Pena. The appellant did not, however, request or obtain any special issues on ratification and waiver. He did not file a motion for new trial, therefore, the only posture in which those two points of error can be considered are as law questions.

A party whose motion for judgment non obstante veredicto is denied may forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). However, errors-of the trial court in refusing to render judgment non obstan-te veredicto raise only no evidence questions for appellate review. McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.Sup.1964); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Shelton v. Ector, 364 S.W.2d 425 (Tex.Civ.App.—Dallas 1963, no writ).

The first question that we must decide is whether or not the evidence demonstrates that, as a matter of law, Pena ratified the fraudulent acts of Wise. Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act which did not then legally bind him and which he had the right to repudiate. Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). Ratification occurs when one, induced by fraud to enter into a contract, continues to accept benefits under the contract after he becomes aware of the fraud or if he conducts himself in such a manner as to recognize the contract as binding. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960); Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506 (Tex.Com.App.1943, opinion adopted); Payne v. Baldock, 287 S.W.2d 507 (Tex.Civ.App.—Eastland 1956, writ ref’d n. r. e.). Ratification can also occur where the defrauded party, after he becomes aware of the fraud, enters into a new agreement by which the rights of the parties are adjusted. Fox v. Miller, 198 S.W.2d 776 (Tex.Civ.App. —San Antonio 1946, writ ref’d n. r. e.); Risley v. McAdams, 108 S.W.2d 443 (Tex.Civ.App.—Amarillo 1937, no writ); Minneapolis-Moline Power Implement Co. v. Gatzki, 57 S.W.2d 593 (Tex.Civ.App—Eastland 1933, no writ). Once a contract has been ratified by the defrauded party or a new agreement adjusting the original fraudulent acts has been consummated, the defrauded party waives any right of recession or damages. See Shaddock v. Grapette, 259 S.W.2d 231 (Tex.Civ.App.—Waco 1953, no writ); Fox v. Miller, supra; Risley v. McAdams, supra.

Unquestionably, the key element which must be proven to establish ratification and waiver of the fraudulent conduct is that the ratifying party had full knowledge of the fraudulent acts at the time he ratified these acts. Most Worshipful Grand Lodge Free & Accepted Masons of Texas v. Hayes, 82 S.W.2d 411 (Tex.Civ.App.—Dallas 1935, no writ). See also Rourke v. Garza, 530 S.W.2d 794 (Tex.Sup.1975); Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); Norman v. Safway Products, Inc., 404 S.W.2d 69 (Tex.Civ.App.—Dallas 1966, no writ); Risley v. McAdams, supra; Woods v. Fisher, 106 S.W.2d 774 (Tex.Civ.App.—Texarkana 1937, no writ); Green v. Hopper, 278 S.W. 286 (Tex.Civ.App.—Eastland 1925, no writ).

The question of ratification of a contract is usually a mixed question of law and fact. Briggs v. Briggs, 337 S.W.2d 753 (Tex.Civ.App.—Amarillo 1960) rev’d on other grounds, 162 Tex. 177, 346 S.W.2d 106. If the evidence of ratification is uncontro-verted or uncontrovertable, then the question of ratification could be determined as a matter of law. Rosenbaum v. Texas Bldg. & Mortg. Co., supra; Powell v. Rockow, 127 Tex. 209, 92 S.W.2d 437 (Tex.Com.App.1936, opinion adopted); Gaston v. Copeland, 335 S.W.2d 406 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.). However, when the act or acts of ratification are not uncontrovert-ed, the question of ratification becomes one for the trier of facts. Missouri Pac. Ry. Co. v. Brazil, 72 Tex. 233, 10 S.W. 403 (1888); Indemnity Ins. Co. of North America v. Sterling, 51 S.W.2d 788 (Tex.Civ.App.—Beaumont 1932, writ dism’d).

In his argument under his first two points of error Wise suggests five acts of ratification by Pena. These acts are that: 1) Dr. Pena made payments to the bank on the note which was executed to finance the $87,000.00 down payment; 2) Dr. Pena continued to make interest payments on the S.B.A. loan; 3) Dr. Pena signed the addendum agreement with Haywood; 4) Dr. Pena took a tax depreciation on the property involved; and 5) finally Dr. Pena agreed to list the property for sale. We hold that none of these alleged acts of ratification would constitute ratification as a matter of law even if they were uncontroverted. The judgment and the answers to the special issues reflect that the fraud for which the judgment awarded Pena his recovery was the action of Wise and Western in adding $27,000.00 to the down payment. The record is conflicting over exactly when Pena became aware that Wise and Western had added the $27,000.00 to the down payment. Dr. Pena testified he did not learn of this portion of the fraud until after the suit was filed. In any event, the evidence is clearly insufficient to establish this fact as a matter of law. The appellant should have requested and submitted issues to the jury on his defensive theories of ratification. Then and only then could this Court weigh the sufficiency of the evidence on such issues. Appellant’s points of error 1 and 2 are overruled.

In his last paragraph under his second point of error, the appellant attempts to bring before this Court the alleged error of the trial court in granting Pena both specific performance and damages. This point was not specifically raised in Wise’s motion for judgment non obstante veredicto. It, therefore, can not now be considered by this Court. Apart from this fact, appellant Wise could not raise this point on appeal even if it were properly perfected. It was not inconsistent that Dr. Pena could be entitled to recover moneys from Haywood for breach of the terms of the agreement he entered into with Haywood and for title to the property. This recovery is not related to the recovery against Wise who was found guilty of fraud in inducing Pena to enter into the original agreement. It must be remembered that Haywood did not appeal from the trial court’s judgment. One may not complain of errors in a judgment which does not affect him injuriously or which merely affects the rights of others. The right of an appeal rests only in an aggrieved party to a lawsuit. McFarling v. Lampham, 489 S.W.2d 435 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). See also Chandler v. Chandler, 536 S.W.2d 260 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d).

In his third point of error Wise complains that the trial court erred in granting Pena recovery under § 27.01 of the Business & Commerce Code because that statute is not applicable where the contract to convey real property is executory. This point of error must be overruled for two reasons: 1) because appellant failed to properly perfect the error; and 2) Section 27.01 is applicable anyway because the contract between the parties had been fully executed by Pena. The only perfection step taken by the appellant was the filing of a motion for judgment non obstante veredic-to. The appellant did not file a motion for new trial. The trial court denied appellant’s motion for judgment non obstante veredicto. A party whose motion for judgment non obstante veredicto is denied may forego the filing of a motion for new trial and predicate his points of error on appeal on the specific matter set out in such motion. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The question here is whether or not the matter set out in appellant’s point of error is also contained in appellant’s motion for judgment non ob-stante veredicto. The point of error states:

“The trial court erred in overruling Defendant’s Motion for Judgment Non Ob-stante Veredicto predicated on case law to the effect that Article 27.01 is not applicable where there has not been a conveyance of real property, but merely a contract to convey.” Section 27.01, Fraud in Real Estate and Stock Transaction, Section a, states in part as follows:
(a) Fraud in a transaction involving real estate . . . consists of a (1) false representation of a . . . existing material fact, when the false representation is (A) made to a person for the purpose of inducing that person to enter into a contract; and (B) relied on by that person in entering into that contract;

The only complaint made ih appellant’s motion for judgment non obstante veredicto that could possibly relate to Section 27.01 above, is to the effect that Pena could not recover damages for fraud against him because Pena was bound by the addendum agreement and Wise was not a party to that agreement. This point of error cannot be considered here because Wise failed to apprise the trial judge of the error which he now complains of. Even if it were sustainable, the appellant should have given the trial court an opportunity to correct the alleged error prior to a review by this Court. See Miller v. Gahagan, 316 S.W.2d 160 (Tex.Civ.App.—Fort Worth 1958, no writ); Miller v. Long-Bell Lumber Co., 217 S.W.2d 867 (Tex.Civ.App.—Amarillo 1949) aff’d 148 Tex. 160, 222 S.W.2d 244 (1949); Daniel v. Fry, 195 S.W.2d 155 (Tex.Civ.App.—San Antonio 1946, writ ref’d n. r. e.). Since Wise failed to perfect this point of error, the point must be overruled. See National Moving and Storage, Inc. v. Vargo, 501 S.W.2d 452 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Robertson v. Alberty, 499 S.W.2d 361 (Tex.Civ.App.—Amarillo 1973, no writ); Trevillian v. Albert, 469 S.W.2d 617 (Tex.Civ.App.—San Antonio 1971, no writ); Bank of Services & Trusts v. Whitnack, 468 S.W.2d 179 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Pickett v. Biggs, 307 S.W.2d 817 (Tex.Civ.App.—Amarillo 1957, writ dism’d).

Second: Section 27.01 which permits actual as well as exemplary damages for fraud involving real estate has been held to be applicable to executed contracts only. Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.Sup.1971); Campbell v. Wilson, 238 S.W. 318 (Tex.Civ.App.—Fort Worth 1921, no writ). Appellant Wise argues that since there was no actual sale or purchase of the real estate and since the transaction had not been fully completed, Pena is not entitled to damages under Section 27.01. In the Stanfield case, O’Boyle promised to convey to Stanfield real estate of a value of $50,000.00 if Stanfield would release certain corporate stock held as security. Stanfield released the corporate stock but O’Boyle did not convey the realty as agreed. Stanfield sued O’Boyle for damages for breach of the contract to convey the real estate. The Supreme Court held in effect that Article 4004 (now Section 27.01) was not applicable to a situation where there is merely a contract to convey realty. The Stanfield case and others of similar import are not applicable to the case before us.

If a contract is totally executory at the time the fraud is discovered, the defrauded party cannot affirm the contract and also sue for damages. This would amount to condoning the fraud. Here, Pena had completed the contract, parted with $87,000.00 as down payment, and had assumed possession and control of the property prior to the time that the fraud was discovered. Although the contract was called a “lease-purchase” type of arrangement, it was fully executed and the fraud had been consummated by Wise and the other defendants. Under such facts, Dr. Pena was entitled to a recovery under Section 27.01. “Fraud in Real Estate . Transactions.”

In his final point of error, Wise complains of the action of the trial court in granting Pena’s motion in limine which prevented Wise from offering evidence before the jury of a proposed settlement agreement between Pena and Haywood. The letter in question was tendered by Wise for the purpose of attempting to show a subsequent act of ratification by Pena. Counsel for Wise argued diligently to have the letter admitted into evidence. However, upon rejection, he failed to make a bill of exception. Although the specific letter in question is present in the record as Exhibit B to Wise’s motion for summary judgment, we cannot consider summary judgment evidence as a substitute for a bill of exceptions. An appellate court in determining whether certain evidence was properly offered or excluded is confined to a bill of exception and the statement of facts. See Brandon v. Anderson, 30 S.W.2d 676 (Tex.Civ.App.—Dallas 1930) aff’d, 121 Tex. 188, 47 S.W.2d 261 (1932). Since Wise made no bill of exception, we cannot now consider this evidence. We also pause to note again that Wise did not file a motion for new trial in the lower court. See Rule 324, T.R.C.P. Excluded evidence must not only be preserved by a bill of exception, there must be an assignment of error in a motion for new trial. Phagan v. State, 509 S.W.2d 703 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.), cert. denied, 421 U.S. 995, 95 S.Ct. 2391, 44 L.Ed.2d 663. Points of error complaining of rulings of a court admitting or excluding evidence will be overruled when not based on a specific assignment of error in a motion for new trial. Goldring v. Goldring, 523 S.W.2d 749 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Prewitt v. Liberty Mutual Insurance Company, 461 S.W.2d 522 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.). Even if the letter in question had been admitted and was admissible, it could only have raised a fact issue. The sufficiency of the evidence is not before us on this appeal. Rule 434, T.R.C.P. Appellant’s point of error number 4 is overruled. The judgment of the trial court is AFFIRMED.

AFFIRMED.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    Jack GRIESENBECK et al., Appellants, v. Willie SCHINDLER et al., Appellees.
    No. 5041.
    Court of Civil Appeals of Texas, Eastland.
    May 26, 1977.
    Rehearing Denied June 16, 1977.
    J. C. Hinsley and Michael G. Maloney, Austin, for appellants.
    Michael J. Simmang, Allan I. Schneider, Giddings, for appellees.
   RALEIGH BROWN, Justice.

This is an appeal from the granting of a writ of mandamus requiring Jack Griesen-beck, County Judge of Bastrop County, to call an election among the voters of the Paige Independent School District for consolidation of said district with the Giddings Independent School District. Willie Schindler, James McPhaul, E. A. Arldt, D. E. Ahlhorn and Cornell Kunkel, in their official capacity as the Board of Trustees of Paige Independent School District, Alton Patschke and Alfred Orts, and Giddings Independent School District were plaintiffs. Griesenbeck, and the Bastrop County School Board, composed of Olan Voigt, W. B. Townsend, Johnny Barton, W. E. Ward and John H. Wieting, County School Superintendent of Bastrop County, were defendants. Bastrop Independent School District was an Intervenor. Defendants and Inter-venor appeal. We reverse and render.

Bastrop Independent School District and Paige Independent School District are located wholly in Bastrop County. All of the schools of the Giddings Independent School District are located in Lee County.

On May 4, 1976, at a regular meeting of the Bastrop County School Trustees, the status and the question of annexation of the Paige Independent School District was discussed. It was agreed no action would be taken at that time.

On May 18,1976 at 4:45 p.m., Olan Voigt, President of the Bastrop County School Trustees, filed with the County Clerk and posted a notice of a special called meeting of the Trustees for 10:00 a.m., May 19,1976, with the subject to be discussed the consideration of annexation of the Paige Independent School District to the Bastrop Independent School District. The notice included, “Due to the urgent nature of the business to be transacted at this meeting this meeting is called an emergency.”

Voigt testified:

“Q Mr. Voigt, you did determine to call a special meeting of the County School Trustees, did you not?
A Yes, sir.
Q Can you tell us on what day you reached that decision?
A Well, I don’t just exactly recall just what day it was.
Q The plaintiffs have introduced in evidence a notice as Plaintiffs’ Exhibit Number 4 which shows that it was posted on May the 18th, 1976, at 4:45 in the afternoon by the county clerk. Now, is that correct, according to your recollection?
A Yes, sir.
Q And prior to that hour, had you called or ordered a meeting, a special meeting of the County School Trustees prior to the posting of the notice?
A Yes, sir.
Q Now, this notice, Plaintiffs’ Exhibit Number 4 says, ‘The subject to be discussed is the consideration of annexation of Paige Independent School District to Bastrop Independent School District.’
A Yes, sir.
Q Now, at that time have you testified that you had been informed that a petition was being circulated in the Paige Independent School District for a consolidation election with the Giddings Independent School District?
A Yes, sir.
Q Do you know whether at the time this notice was posted, which states that the subject to be discussed is the consideration of annexation of Paige Independent School District to Bastrop Independent School District, any such petition had been given to Judge Griesenbeck, the county judge?
A No, sir.
Q You don’t know, or it hadn’t been?
A As far as I know, it hadn’t been.”

On May 19, 1976 at 10:00 a.m., the County School Trustees of Bastrop County met pursuant to the notice and passed the order annexing the Paige Independent School District to the Bastrop Independent School District.

On May 19, 1976 at 8:36 a.m., Judge Griesenbeck received a petition requesting the calling of an election for the purpose of consolidating the Paige Independent School District with the Giddings Independent School District. On the same day, at 2:05 p.m., a petition from the voters of the Gid-dings District to consolidate with the Paige District was filed with the Lee County Judge.

Appellants argue the trial court erred in ordering the issuance of a writ of mandamus directing and commanding Judge Griesenbeck to call an election among the voters of the Paige District to consider the question of consolidation with the Giddings District because the undisputed evidence established that the School Trustees of Bas-trop County acquired exclusive jurisdiction to dispose of the territory of the Paige District prior to the time of filing of any petition with Judge Griesenbeck seeking the calling of an election to decide the question of consolidation of the Paige District with the Giddings District, thereby depriving Judge Griesenbeck of any jurisdiction to call such an election.

Texas statutes provide two methods, under differing jurisdiction, for joining one or more school districts with each other to form a larger district. Consolidation, as provided by Section 19.231-19.242, Texas Education Code, is accomplished by elections initiated by petitions from voters in the respective school districts addressed to the appropriate county judge or judges with the elections being canvassed by commissioners’ courts and with orders entered by such courts. Annexation, as provided by Section 19.001, Texas Education Code, is under the jurisdiction of county boards of school trustees. No petitions were required to initiate action by the trustees to annex one or more districts to other districts and no election was required except in certain situations involving the grouping (not involved in the case before us), as opposed to annexation, of a large number of school districts containing more than 100 square miles to form a rural high school district.

Disposition of the issue of which of two or more tribunals with potential jurisdiction has jurisdiction is resolved by the rule as stated in Erath County School Trustees v. Hico County Line Independent School District, 247 S.W.2d 564 (Tex.Civ.App.-Eastland 1952, writ ref.):

“. . . The rule is that where coordinate jurisdiction over a particular subject matter is vested in two distinct tribunals that which first acquires active jurisdiction has the right to retain jurisdiction until it has disposed of the matter and no coordinate tribunal has the right to interfere. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; Garrett County Judge v. Unity Common School Dist., Tex.Civ.App., 211 S.W.2d 238; Wichita Common School Dist. No. 11 v. Dickens Independent School Dist. of Dickens County, Tex.Civ.App., 206 S.W.2d 885; Lynn County School Board v. Garlynn Common County Line School Dist., Tex.Civ.App., 118 S.W.2d 1070; 21 C.J.S. Courts § 492, page 745.”

The crucial issue in the instant case relates to which tribunal first acquired active jurisdiction. Appellants urge the jurisdiction of the Bastrop County Trustees over the matter was attained on May 4, when the annexation was discussed at their meeting, or at least on May 18, when the notice for its May 19 meeting was posted. Finally, appellants contend since no petition was filed with the County Judge of Lee County until 2:05 on May 19 and the Trustees acted authorizing the annexation at its meeting at 10:00 a.m. on the same day, there is a serious question whether the County Judge of Bastrop County or Lee County ever acquired jurisdiction to call a consolidation election.

Appellees concede the Trustees acquired jurisdiction at the May 4 meeting, but by their action retained no jurisdiction after the close of the meeting. Appellees, also, argue that the mere posting of the notice on May 18 of the meeting to be held on May 19 did not vest the Trustees with jurisdiction.

The clear provisions of Section 19.-232, Texas Education Code, vest the county judge with jurisdiction to order a consolidation election upon being presented a proper petition. Lynn County School Board v. Garlynn Common County Line School Dist., 118 S.W.2d 1070 (Tex.Civ.App.-Amarillo 1938, writ ref.). Section 19.001, Texas Education Code, makes no requirement for a petition and the school trustees without notice, without a hearing, without an election, without consent of the district involved are authorized to annex one school district to another. Neill v. Cook, 365 S.W.2d 824 (Tex.Civ.App.-Eastland 1963) writ ref. n. r. e. per curiam, 376 U.S. 202, 84 S.Ct. 698, 11 L.Ed.2d 650; District Trustees of Campbell-ton Consolidated Common School District No. 16 v. Pleasanton Independent School District, 362 S.W.2d 122 (Tex.Civ.App.-San Antonio 1962, writ ref. n. r. e.).

Since the enactment of Article 6252-17, V.A.T.S., annexation without notice is impossible. The court in Toyah Independent School District v. Pecos-Barstow Independent School District, 466 S.W.2d 377 (Tex.Civ.App.-San Antonio 1971, no writ) considering the failure of the county board of school trustees to comply with provisions of the “Open Meeting Law” said:

“It must be remembered that the Reeves Board is but a political subdivision of the State of Texas. It is axiomatic that local governing bodies are entities and that the members can perform no valid act except as a body at meetings properly convened and conducted. This general rule is applicable to the governing bodies of school districts. 3A An-tieau, Local Government Law (Independent Local Government Entities) Sec. 30C.06, p. 30C-13 (1970).
Article 6252-17, supra, unambiguously prohibits the holding of closed meetings by governmental bodies unless the matter under consideration is one of the subjects which the statute permits to be considered and acted on in executive session. As applied to this case, since none of the statutory exceptions are applicable, the Reeves Board was authorized to act only at a meeting which was open to the public. It is an anomaly to say that a meeting, the holding of which is forbidden by law, is a legal meeting.”

Section 3A of Article 6252-17, V.A.T.S., requires:

“Sec. 3A. (a) Written notice of the date, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section.
(e) The governing body of a school district, water district, other district, or other political subdivision shall have a notice posted at a place convenient to the public in its administrative office, and shall also furnish the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. The county clerk shall then post the notice on a bulletin board located at a place convenient to the public in the county courthouse.
(f) Notice of a meeting must be posted for at least the three days preceding the day of the meeting. However, in case of emergency or urgent public necessity, which shall be expressed in the notice, it is sufficient that the notice is posted before the meeting is convened or called to order.”

Appellees do not contend that Bastrop County School Board failed to satisfy this requirement by its notice of May 18. The issue is did the posting of the notice give the trustees the first acquired active jurisdiction of the matter.

The court in London Independent School Dist. v. Thomerson, 223 S.W.2d 314 (Tex.Civ.App.-San Antonio 1949, writ dism’d) considering which of two tribunals having coordinate jurisdiction first obtained jurisdiction said:

“If we should hold that some act not required by the statute such as the filing of a petition would be sufficient to confer such exclusive jurisdiction upon the board, then why not hold that the signing of the petition, or the circulation of the petition, or the preparing of the petition for circulation would be sufficient to do so? It seems to us there would be no safe place to draw the line. Holding that one tribunal has such exclusive jurisdiction over a certain school district as to render void the acts of another co-ordinate tribunal taken with reference to such school district is a serious matter and should be based upon a definite legal step or action. It seems to be well settled that the taking of the first legal step or action required by the statute determines the matter and it is that step or action which gives exclusive jurisdiction to a board or tribunal (Emphasis ours)

See also Handley v. Coker, 248 S.W.2d 814 (Tex.Civ.App.-Beaumont 1952, writ ref.).

The court in Handley, supra, quoted from City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323 (Tex.Civ.App.-Fort Worth 1945, ref. W.M.) as follows:

“ ‘The doing of the first thing required by the statutes marks the beginning of the proceedings.’ ”

The first requirement since the passage of the Open Meeting Law for an annexation by the Bastrop County School Trustees was the posting of notice. That posting was prior in time to the filing of the petition with the County Judge of Bastrop County. We hold the posting of that notice marked the beginning of the proceedings and vested jurisdiction with the Trustees prior to the jurisdiction being vested with the County Judge. A contrary holding would permit a disorderly procedure. It could effectively result in the trustees losing their ability to annex school districts upon the filing of the required public notice.

The trial court erred in granting the mandamus. This holding makes it unnecessary to consider the other points of error presented by appellants.

The judgment is reversed and rendered.


author: HALL, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Kenneth C. KIMBALL et al., Appellees.
    No. 5706.
    Court of Civil Appeals of Texas, Waco.
    May 26, 1977.
    Rehearing Denied June 16, 1977.
    Sherwin A. Winniford, Haley, Fulbright, Winniford & Bice, Waco, for appellant.
    G. Stanley Rentz, Waco, for appellees.
   HALL, Justice.

Appellee Kenneth C. Kimball (Kenneth) is the named insured in a family automobile policy issued by appellant, Southern Farm Bureau Casualty Insurance Company. Kenneth’s wife, Connie, was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action filed by her was pending. Appellant brought suit seeking a declaratory judgment as to its responsibilities under the policy for uninsured motorist protection benefits, personal injury protection benefits, and death indemnity benefits. Appellant’s suit was consolidated for trial with another brought by appellees for these benefits. On the trial, under stipulated facts, the only issue raised by the parties was whether Connie and Kenneth were “residents of the same household,” as that term is used in the policy, at the time of Connie’s death. Appellant contended she was not, but it conceded that if she was then it was liable for the benefits in question.

Trial was to a jury. It was asked the single question, “Do you find from a preponderance of the evidence that at the time of the accident in question, Connie Kay Kimball was a resident of the same household as Kenneth Kimball?” The jury was instructed that “by the term ‘resident of the same household’ is meant: (A) by the term ‘resident’ [is meant] a member of the same family; and (B) by the term ‘household’ is meant persons who dwell together as a family.” The jury answered the question, “She was a resident of the same household.” Judgment was rendered on the verdict in favor of appellees.

It is appellant’s contention that the evidence is legally and factually insufficient to support the jury’s finding. Particularly, appellant argues that under the court’s definitions parties must not only be members of the same family but must also “dwell together under the same roof” in order to be residents of the same household; and that the undisputed proof that Kenneth and Connie were separated and living in separate residences establishes as a matter of law that they were not residents of the same household. We overrule these contentions and affirm the judgment.

The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary — i. e., whether there is physical absence coupled with an intent not to return. In American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042, 1044 (1971), the court said that the residence in question “emphasizes membership in a group rather than an attachment to a building”; and that it is “a matter of intention and choice” rather than one of location. Under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses (albeit with divorce actions pending) did not, per se, destroy their household membership with their families and spouses. See, Crossett v. St. Louis Fire And Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972); Manuel v. American Employers Insurance Company, 228 So. 321 (La.App., 1939); Giese v. Karstedt, 30 Wis.2d 630, 141 N.W.2d 886 (1966); Allstate Ins. Co. v. Jahrling, 12 N.Y.2d 943, 238 N.Y.S.2d 517, 188 N.E.2d 791 (1963); Doern v. Crawford, 36 Wis.2d 470, 153 N.W.2d 581 (1967); American Casualty Co. v. Harleysville Insurance, 238 Md. 322, 208 A.2d 597 (1965); Lumbermen’s Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska Sup., 1963). Related annotations are found in 173 A.L.R. 901, 1 A.L.R.2d 557, 78 A.L.R.2d 1395, and 46 A.L.R.3rd 1024.

Three Texas cases cited by appellant which deal with spouses living in separate residences are Firemen’s Insurance Company of Newark, New Jersey v. Burch, 426 S.W.2d 306 (Tex.Civ.App.—Austin, 1968); Boon v. Premier Insurance Company, 519 S.W.2d 703 (Tex.Civ.App.—Texarkana, 1975, no writ), and Cunningham v. Members Mutual Ins. Co., 456 S.W.2d 216 (Tex.Civ.App.—Fort Worth, 1970, no writ). In Burch and Boon divorce actions were pending and there was also direct testimony by a spouse, corroborated by other proof, that the separation was permanent. Findings in both cases that the spouses were not residents of the same household were held supported by proof on appeal. The appellate courts emphasized the proof supporting the findings, concluded fact questions were raised, and refused to hold that the spouses were, as a matter of law, residents of the same household. In Boon, the court pointed to “cases with similar fact situations in which the trier of facts concluded that the wife was a resident of the same household, [and] the appellate courts have affirmed the lower court judgments." In Cunningham, (a venue case), the court emphasized the fact of the spouses’ separation in leaving intact a finding that they were not residents of the same household, but stated that they were “in an identical position” as the parties in Burch, and based its ruling on the holding in Burch. If, as appellant says, Cunningham stands for the proposition that the “one roof, dwelling together” test is solely controlling, then we would not follow it.

The remaining case cited by appellant is Travelers Indemnity Co. v. American Indemnity Co., 315 S.W.2d 677 (Tex.Civ.App., 1958, no writ). There, the court held the proof supported a jury finding that a 34-year-old son who had been living and working 50 miles distant from his parents’ home, but who had indicated an intention to return to his parents’ home and was presumably on his way there with some clothes at the time of the accident, was not a resident of his father’s household.

In our case, Kenneth and Connie, a couple in their 20’s, were married in May, 1972. Their only child, a daughter, was born in September, 1973. Connie was killed on December 21,1975. Before their separation, they resided in their mobile home in the City of Waco. Early in their marriage, they suffered substantial financial losses in the construction business. Thereafter, during the last two years of their marriage, Kenneth was a “long haul” truckdriver, based in Waco. He would be on the road three and four weeks at a time, with no longer than three days at home between trips. Sometimes he would get in at night and leave the next morning. On the trips, he virtually lived in his truck. It was arranged with his employer that Connie could draw on his earnings and pick up his paychecks. She cashed the checks, bought the family needs, and paid the bills, including payments on the mobile home and several department store accounts she maintained. Connie also held a job. During the day, she left their child with her mother who lives in the City of Lacy-Lakeview, near Waco. After work when Kenneth was gone, Connie would go home, clean up, carry her work clothes for the next day to her mother’s house, and she and the child would spend the night there. Connie filed suit for divorce on November 5, 1975. Later, she separated from Kenneth and moved into her mother’s house, taking all of her work clothes. After the separation, Connie still kept most of her things in the trailer home. One week before her death, Connie rented an apartment in the City of Bellmead, near Waco, and moved all of her belongings into it. She left a set of dishes in the mobile home for Kenneth. The divorce suit and the separation were precipitated by emotional stress suffered by Connie which was caused by Kenneth’s long absences from home and by the dunning of creditors of their defunct construction business. During the separation, Connie would either meet Kenneth at the truck depot in Waco when he returned from a trip, or she would have their car there for his use and he would go to her. They would go out together for supper when he was home, and would visit into the evening with each other and other trucker-couples at local night spots. Neither was romantically interested in another person. They continued with the arrangement for Connie drawing on his pay, cashing his checks, using the money as she saw fit, including her needs and those of the child, and paying the bills. He talked with her several times about a reconciliation, but she had not agreed to it at the time of her death. On December 5, 1975, Kenneth returned home to attend his father’s funeral. That night, he and Connie slept together in a room in his mother’s house. Their child was with them. On December 20th, the night before Connie died, she fixed supper for Kenneth in her apartment. Their daughter was with them. They discussed plans for the child’s Christmas. Kenneth had arranged his schedule to be home on Christmas.

The evidence we have recited supports a determination by the jury that the separation of Kenneth and Connie was not irrevocably permanent at the time of Connie’s death. It is legally sufficient to support the finding that they were then residents of the same household. A review of the whole record convinces us that the finding is not against the great weight and preponderance of the evidence.

The judgment is affirmed.

      . This case has a writ history at 442 S.W.2d 331 (Tex.Sup., 1969), but no complaint was raised there on the question before us.


author: WHITE, Judge.

text:
    Carl CLORE, Jr., Robert Haney, Lee S. Clore, and Eugene Holmes, Appellants, v. Charles FREDERICK and Wanda Frederick, his wife, Appellees.
    Court of Appeals of Kentucky.
    June 3, 1977.
    Thomas B. Merrill, Crestwood, for appellants.
    James A. Hall, LaGrange, for appellees.
    Before WHITE, COOPER and HOWARD, JJ.
   WHITE, Judge.

This is a suit involving an option to purchase land near an interstate highway interchange in Indiana. The appellees, Charles Frederick and Wanda Frederick, are the landowners while the appellants are assignees of the optionee, Charles Kav-anagh.

It appears from the evidence that Gloria Kavanagh, a real estate broker, contacted the Fredericks and procured from them on January 8, 1969, an option to purchase a parcel of land that the Fredericks owned in Floyd County, Indiana. This option to purchase was granted to Charles Kavanagh, her husband, and/or his assigns. The property was described and located as follows:

This property is located on Charlestown Rd. also known as St. Re 31-W Floyd Co. New Albany, Indiana. Being a tract of land 3 acres more or less, fronting approx. 323 feet more or less on the southwest corner of Charlestown Rd. This being the same property formerly owned by Henry Biesel. This same property was conveyed from Bertha Biesel to Charles A. Frederick. This is part of No. 63 Illinois Grant. Legal to be added.

This option recited that the purchase or option price was to be $42,400.00 and that the cash consideration of $1.00 received shall be applied or credited on the purchase price in the event this option is exercised; otherwise it is to belong to the Fredericks. The option was renewed six times, covering a period of four years, without material changes. However, the last renewal, dated August 25, 1972, contained the following statement: “This contract must be exercised by Jan. 31, 1973. Mr. Fredericks (sic) does not want to renew again. — ”

The evidence discloses that Mr. Frederick was paid a total of $4,500.00 by the Kav-anaghs as consideration for all the options. Meanwhile, during the pendency of these options, the Kavanaghs assigned all their interest to the appellants for a total of at least $9,875.00. All of said sums were paid by appellants to the Kavanaghs; none of appellants paid the Fredericks anything.

Evidence was also adduced to show that on February 6, 1969, Charles Frederick deeded to the state of Indiana, under threat of condemnation, a strip of land across part of the frontage which restricted the access to 89.15 feet on Charlestown Rd. This portion of land deeded away contained 0.129 acre. There was also evidence of a survey taken on February 27,1973, which indicated that there was at that time 1.868 acres in the Frederick tract.

Suit was filed by the appellants to recover the money paid by them to the Kav-anaghs. The appellants also asserted a claim against the Fredericks for the return of the option money. Pursuant to a jury verdict, judgment for $9,875.00 was entered in favor of the appellants against the Kav-anaghs and the appellants’ claim against the Fredericks was dismissed. Appellants now bring this appeal asserting that they were entitled to judgment against the Fredericks as a matter of law because ap-pellees could not convey three acres more or less with 323 feet fronting on the southwest corner of Charlestown Road. The appellants also assert that the trial court erred in its instruction to the jury concerning nonex-ercise of the option.

There seems to be some confusion by the appellants as to what constitutes an option contract. Contrary to appellants’ view, this option contract is not a contract for the purchase or sale of property, but is instead a contract giving the optionee the privilege of purchasing it if he elects to take it within the time stated in the option. Miller v. Hodges, 308 Ky. 655, 215 S.W.2d 99 (1948). An option has long been recognized as not a sale but a right to exercise a privilege. Three Rivers Rock Co. v. Reed Crushed Stone, Ky., 530 S.W.2d 202 (1975).

Appellants argue that the “10 per cent rule” applicable to contracts for the purchase or sale of real property applies in the instant ease. See Harrison v. Talbot, 2 Dana 258, 32 Ky. 258 (1834); Boggs v. Bush, 137 Ky. 95, 122 S.W. 220 (1909).

This contract was clearly an unex-ercised option contract, and one to which, of course, the “10 per cent rule” does not apply. In like manner, the fact that the tract was described as being “3 acres more or less, fronting approx. 323 feet more or less on the southwest corner of Charlestown Rd.” does not provide a cause of action against the appellees since it is used for the purpose of description and location of the tract, and not as a warranty of acreage.

It is clear from the testimony of the appellants that their purpose in purchasing the Kavanaghs’ rights under this option was “to make a considerable sum of money” when the interstate highway interchange was built nearby. It is likewise evident that appellants were not concerned particularly with the amount of acreage or the distance of access, because in their greed they believed there was enough profit for everyone concerned.

One purpose of such an option contract is to freeze the price of a particular tract of land while further investigations are made by the optionee as to its quantity, suitability, and marketability. Then, if all appears in order, the optionee exercises the option and a contract for the sale and purchase of land is in effect.

Here it is apparent from the record that these appellants made no investigations and no efforts to exercise the option for over four years while they speculated on a sale to another prospective buyer. When they attempted to exercise the option, it had, by its own terms, expired on January 31, 1973. Stewart v. Gardner, 152 Ky. 120, 153 S.W. 3 (1913). The appellants are not entitled to a return of the option money. 91 C.J.S. Vendor and Purchaser § 7d (1955).

The judgment is affirmed.

All concur.


author: WILHOIT, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Lloyd BARNHILL, Appellee.
    Court of Appeals of Kentucky.
    June 3, 1977.
    Robert F. Stephens, Atty. Gen., Frankfort, Miles H. Franklin, Asst. Atty. Gen., Frankfort, Charles R. Geveden, Commonwealths Atty., 1st Judicial District, Wick-liffe, for appellant.
    Dee L. McNeill, Hickman, for appellee.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge.

This is an appeal from an order of the Carlisle Circuit Court dismissing an indictment charging the appellee, Lloyd Barnhill, with reckless homicide under KRS 507.050.

As the result of an automobile accident involving an automobile allegedly driven by appellee, a passenger in the automobile was apparently killed. A state trooper investigating the accident issued a citation charging Mr. Barnhill with operating a motor vehicle while under the influence of intoxicating beverages (KRS 189.520). The following day Mr. Barnhill was taken before the Judge of the Carlisle Quarterly Court. With the County Attorney present Barnhill entered a plea of guilty to the charge and was fined $100.00 and costs. Two weeks later, the Carlisle County Grand Jury indicted him for reckless homicide. He moved the circuit court on the basis of former jeopardy to dismiss the indictment. From the order of the court granting this motion, the Commonwealth appeals.

The only question presented here is whether a conviction in Quarterly Court under KRS 189.520 is a bar to a subsequent prosecution under KRS 507.050 when the subsequent prosecution involves the same conduct as that in the previous prosecution.

Although neither the appellant nor the appellee has cited KRS 505.040 we believe it is controlling here. Section (l)(b) of that statute provides that a later prosecution is barred by a former prosecution when the second prosecution is for “[a]n offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution . . . (Emphasis added). It is clear that the offense of operating a motor vehicle while under the influence of intoxicating beverages requires proof of a fact, viz, intoxication, which is not required to be proved to establish reckless homicide. Reckless homicide, on the other hand, requires proof of facts, viz, recklessness and causing the death of another, not required to be proved to establish operating a motor vehicle while intoxicated.

Appellee argues that Section 13 of the Constitution of Kentucky bars his prosecution on the subsequent charge and in support of this argument he cites Commonwealth v. Crowder, 177 Ky. 268, 197 S.W. 643 (1917). That case, however, stands for the rule that one who has been put into jeopardy for an offense which includes other offenses has been put into jeopardy as to all included offenses. Nor do we find any support for appellee in Burnett v. Commonwealth, Ky., 284 S.W.2d 654 (1955). As pointed out on page 656 in Burnett, a case factually similar to this case:

(T)he rule against splitting an act into separate offenses does not apply where a single act is common to two offenses but each contains additional elements not common to the other, nor if different parts of one continuous transaction or series of acts are separate offenses and can be separately proved.

The offenses involved in this case are distinct and separate offenses growing out of the same conduct. Neither is an offense included within the other. See KRS 505.-020. Consequently, the prosecution of the appellee on the second charge does not violate Section 13 of our constitution.

The order of the trial court dismissing the indictment is reversed.

All concur.


author: WEIER, Judge.

text:
    James Edward MORRIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38172.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 5, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.
    Sestric, McGhee & Miller, Cynthia S. Holmes, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., W. Mitchell Elliot, Jefferson City, George A. Peach, Circuit Atty., Marion G. Eisen, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

Following an evidentiary hearing, the trial court overruled movant James Edward Morris’ Rule 27.26 motion to vacate judgments and sentences which had been imposed when movant entered pleas of guilty to charges of robbery first degree by means of a dangerous and deadly weapon and assault with intent to kill with malice. Mov-ant is presently serving two concurrent twelve year sentences for these offenses. We affirm.

Movant seeks reversal contending first, that he was denied adequate assistance of counsel and second, that his guilty pleas were not voluntary “due to the inhumane conditions under which he was incarcerated in the St. Louis City Jail and workhouse and due to the inadequate legal representation given defendant-appellant.” Once a guilty plea has been entered, the adequacy of counsel’s representation is only reviewable to the extent that it affects the understanding and voluntariness of the plea. Guilbeaax v. State, 544 S.W.2d 855, 856[2] (Mo.App.1976).

At the evidentiary hearing afforded movant, his testimony and the testimony of his counsel were adduced. His attorney testified he had attempted to find two witnesses suggested by movant but could not locate them. He had discussed the facts with the complaining witness Larry Ahart. This man informed counsel that he was shot in the back while he was lying face down and when he looked up, Morris was standing in back of him with a gun in his hand; that Morris had taken his money. Counsel did not advise movant to plead guilty but expressed his opinion that Morris would be convicted by a jury and that he would be given a severe sentence if he went to trial. The court determined that movant was adequately represented by counsel and that conditions under which movant was held in the jail and workhouse were not inhumane so as to cause him to enter pleas of guilty. This determination was supported by the evidence and is not clearly erroneous.

At the guilty plea proceedings movant indicated that he was satisfied with the advice of counsel and that he was aware of the constitutional rights he was waiving. Movant indicated that no one had coerced or forced him to plead guilty and that he was guilty of the offenses charged. The assistant circuit attorney stated that the facts of the offenses were that Larry Ahart the victim was attacked and robbed at gunpoint by movant and another man and that Ahart was shot by movant. Movant admitted that the facts as related by the prosecutor were true and correct, except he stated his companion, rather than movant, fired the shot.

Movant’s allegation that his guilty pleas were not voluntary is refuted by the transcript of the guilty plea proceedings. Smith v. State, 513 S.W.2d 407, 411[4, 5] (Mo. banc 1974), cert. den., 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Winston v. State, 533 S.W.2d 709, 715[11] (Mo.App.1976). Movant has not carried his burden of proof to show how he was prejudiced by his counsel’s alleged failure to further investigate the case or file motions to suppress identification and request a speedy trial. Guilbeaux v. State, supra at 856[3]; Stewart v. State, 542 S.W.2d 544, 546[4] (Mo.App.1976). Furthermore, “mere incarceration prior to trial does not constitute such coercion as to render a plea involuntary,” Coleman v. State, 542 S.W.2d 53, 55[7] (Mo.App.1976), and movant has not demonstrated that the finding of the trial court that movant was not subject to cruel and unusual punishment while in the City Jail is clearly erroneous. Crosswhite v. State, 426 S.W.2d 67, 70[1] (Mo.1968); Rule 27.26(j). Movant has not met his burden of showing the trial court was clearly erroneous in finding his guilty pleas were knowingly and voluntarily made.

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: RENDLEN, Judge.

text:
    Roby HUDSON, Appellant, v. STATE of Missouri, Respondent.
    No. 37782.
    Missouri Court of Appeals, St. Louis District.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.

      T. Scott Richardson, St. Louis, for appellant.
    John C. Danforth, Preston Dean, William F. Arnet, Michael Davis, Jefferson City, Brendan Ryan, Neis C. Moss, Jr., St. Louis, for respondent.
   RENDLEN, Judge.

Roby Hudson appeals denial of his Rule 27.26 motion, seeking to vacate convictions on three counts of assault with intent to maim with malice and consecutive sentences of twenty-five, ten and ten years.

Appellant filed a combined motion attacking the three convictions of assault and a separate conviction of murder second degree. The murder and assault charges had been tried and appealed separately, the former affirmed on direct appeal in State v. Hudson, 521 S.W.2d 43, (Mo.App.1975) and the latter in State v. Hudson, 521 S.W.2d 41, (Mo.App.1975). In this proceeding, the causes were severed and the motion as it related to the assault charges assigned to the Honorable Harry M. James, presiding judge at the original trial in that case, who without evidentiary hearing denied the appellant’s 27.26 motion.

Hudson appeals contending: (1) that because § 546.480, RSMo 1969, under which movant received consecutive sentences, had been declared unconstitutional, the sentences must be vacated and the cause remanded for resentencing; (2) the hearing court “erred in failing to afford appellant’s counsel reasonable time to confer with the prisoner and to amend the motion filed pro se” and (3) “the trial court erred in ruling section 552.020, R.S.Mo. constitutional in that it violates the fourteenth amendment to the Constitution of the United States.”

Though appellant in his 27.26 motion failed to challenge the propriety of the sentences having been made consecutive, the hearing court sua sponte, considered and ruled the issue against appellant who now raises the point on appeal. If it can be determined from the record of a sentencing proceeding conducted prior to State v. Baker, supra, that the trial court exercised its discretion in ordering consecutive sentences, and where the same court in a subsequent post-conviction proceeding denied movant’s request for resentencing, in such a case remand is not constitutionally required. Lawson v. State, 542 S.W.2d 796 (Mo.App.1976). See also Spencer v. State, 534 S.W.2d 598, 599—600[3] (Mo.App.1976). Here, in an addendum to its order denying the motion, the hearing judge, who had been the trial judge, stated that although movant had been sentenced under the now invalid statute, had the court been free at the time of sentencing to exercise its discretion the sentences would have nevertheless been made consecutive. Stated otherwise, the statute cannot be said to have affected the consecutive feature of movant’s sentences as the court made clear that whether in the free exercise of discretion or by compulsion of statute, the sentences would be the same. Rule 27.26 relief exists to correct constitutional and other serious errors; it will not be employed for the useless gesture of remanding the cause for the trial court to again reaffirm the consecutive sentences. The point is denied.

Appellant next contends he was not afforded adequate opportunity to consult with counsel or amend his pro se motion. This point is also without merit. Counsel was appointed October 3, 1975, from that date until judgment was entered on January 8,1976, some 97 days were available for appellant to consult with counsel. Nothing in the record suggests there was not sufficient time to amend the motion as provided by Rule 27.26(h) which in part is as follows:

“Counsel shall have the duty to ascertain from the prisoner whether he has included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included.”

However appellant argues that an October 3,1975 letter from the Honorable Harold L. Satz to appellant’s counsel on the date the murder and assault aspect of the 27.26 motions were ordered separated, had the effect of leading appellant to believe he need not bestir himself at that time to amend the motion and include “all grounds known to the prisoner” for attacking the judgment and sentence. This argument is not persuasive for reasons following: Though Judge Satz’ letter advised, “it is my” practice to hold pretrial conferences in such cases to determine if amendments to the motion were to be made and whether “an evidentiary hearing is to be had,” neither the letter nor the accompanying copy of the October 3, 1975 order suggested that appellant and counsel could sit idly for 97 days. Further, by the October 3 order the clerk was directed to “open a separate and additional post-conviction remedy file with a separate number” for the assault charge motion and a separate number for the murder charge motion, and mention was made that the motion, as it related to the assault, was “Cause No. 72-2646, Judge Harry M. James presiding.” Ordinary diligence would have disclosed the probable assignment of the cause to Judge James suggested by Satz’ order of October 3, 1975, in fact occurred and that the motion was assigned to Judge James. Nothing appears indicating appellant or his counsel communicated their desire for a pretrial conference to Judge James, or that they wished to amend the motion, nor was inquiry made concerning the practice of Judge James as to pretrial conferences in such matters. Further, appellant has not here suggested any additional grounds that might have been raised by amendment but urges remand of the cause on the possibility such might exist. This we will not do, for as in Foster v. State, 520 S.W.2d 684 (Mo.App.1975) where a 27.26 movant argued he was prejudiced by counsel’s failure to amend the pro se 27.26 motion as “there may have been additional grounds”, the court aptly held “these bare allegations do not warrant relief under the rule”. Here appellant’s point, which is no more than a conclusional statement, does not warrant reversal. Further, after judgment was entered, movant had thirty days to consult with counsel and move for new trial requesting the court set aside the judgment and for the right to amend or similar relief, Griffin v. State, 529 S.W.2d 665, 666[4] (Mo.App.1975); State v. Guliett, 411 S.W.2d 227, 228[5] (Mo.1967). Failing so to do, appellant may not be heard to complain he was afforded no “reasonable time” to confer with counsel or amend the motion.

Finally, appellant contends that § 552.020 which allows a defendant a second psychiatric examination at his own expense, is violative of the equal protection clause of the fourteenth amendment of the United States Constitution in that it invidiously discriminates against indigent defendants. This contention must fail for two reasons. First, appellant in his point does not tell us how he was prejudiced by the statute and second, our Supreme Court has held that the statutory scheme provided in § 552.020 to protect incompetent defendants, does not violate the equal protection clause. State v. Terry, 472 S.W.2d 426, 429-30[5] (Mo.banc 1971) vacated in part on other grounds 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972). See also State v. Sturdivan, 497 S.W.2d 139, 144[17] (Mo.1973). The point is denied.

Judgment affirmed.

McMillian, p. j., and stewart, j., concur.

      . Judge Harold L. Satz presided at the trial of the murder charge and it was his order of October 3, 1975 that directed the severance in this motion proceeding. Although the record is not clear, apparently the motion as it related to the murder charge was assigned to Judge Satz.

      . See State v. Baker, 524 S.W.2d 122, 129-31[5, 6] (Mo.banc 1975).


author: McMILLIAN, Presiding Judge.

text:
    Florence S. YOUNG, Plaintiff-Appellant-Respondent, v. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, Defendant-Appellant-Respondent.
    Nos. 37992, 37993.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.

      Wion, Burke & Boll, Edward P. Burke, Clayton, for plaintiff-appellant-respondent.
    W. David Wells, St. Louis, for defendant-appellant-respondent.
   McMILLIAN, Presiding Judge.

This is an appeal whereby plaintiff, in a conversion action, sought actual and punitive damages against defendant bank for its appropriation of $10.00 which plaintiff had on deposit with the bank. The trial court directed a verdict for defendant on the issue of punitive damages. A jury awarded $1500.00 to plaintiff as actual damages. Defendant contends that the $1500.00 award was unsupported by probative evidence and that damages as a matter of law are limited to the $10.00 appropriated. Plaintiff alleges trial court error in refusing to submit the issue of punitive damages to the jury. We find plaintiff’s proven actual damages to be only $10.00 and, therefore, order the entry of a judgment for plaintiff for that amount plus interest. In addition, we find-that the trial court erred in directing a verdict for defendant on the issue of punitive damages and accordingly remand for a new trial on the issue of punitive damages only.

The facts are relatively simple. On January 21, 1971, plaintiff withdrew $193.00 from her savings account, leaving a balance of $10.00. Plaintiff also cashed two U.S. Savings Bonds, a $25.00 bond worth $18.75 and a $50.00 bond worth $38.10. Plaintiff testified that she immediately counted the money received for the savings bonds and it totaled $56.85. She took this money, the $193.00 withdrawn from her savings account plus some other money, and opened a checking account for $260.00. Plaintiff then wrote a check for $250.00 leaving a balance, after assessment of the service charge, of $9.90. At the end of the day, the teller who handled plaintiff’s transactions discovered that she was $18.75 short. In rechecking, the teller noticed that a $37.50 cash value was stamped on the face of plaintiff’s $25.00 bond. Feeling that this was the source of the shortage, the teller called plaintiff and asked her to remit the $18.75 overpayment. Plaintiff denied that there had been an overpayment and asked if there was some other bank employee with whom she could discuss the matter. The teller told plaintiff that she could call the auditing department. Plaintiff did not do so at this time.

On January 28,1971, the bank sent plaintiff a letter informing her that because she had refused to repay the $18.75, the bank was charging her savings account $10.00, thereby closing it. The letter also demanded repayment of the $8.75 allegedly still owing. Finally, plaintiff was requested to make other arrangements for her checking account and was informed that a check for the balance in the checking account would be mailed to her. This time plaintiff attempted to call the bank president but was referred to the bank’s auditing department. Plaintiff was unable to obtain any satisfaction.

On February 9, 1971, plaintiff received a second letter from the bank in which was enclosed a cashier’s check for $9.90, the balance of the checking account. Once again, plaintiff was informed that she owed the bank $8.75.

Plaintiff’s petition alleged that the bank had acted maliciously and intentionally and had thereby . . caused plaintiff’s reputation to suffer substantially in the economic community; to-wit, she can no longer obtain credit, and she is embarrassed by refusals of credit by merchants.” Punitive damages in the amount of $100,000 and $10,000 in actual damages were sought. Plaintiff’s case at trial consisted solely of her own testimony recounting the events and that she was very upset and angry with the bank. The only testimony supportive of her claims of economic embarrassment was the following exchange:

“A. ... I felt after I applied for credit some place, I felt because of that transaction, it damaged my character as a person.
“Q. Did you know that happened, or is that something you are—
“A. I don’t know if it’s a fact, but I feel it was.”

The bank’s case at trial consisted solely of the teller’s recounting of the events. The teller knew nothing about the transactions between plaintiff and the bank subsequent to the teller’s January 21 telephone call to plaintiff. No evidence was introduced by defendant to establish any legal authority for the bank’s actions. Plaintiff’s exhibit I, the January 28 letter, did recite, without any detail, that the bank was “. [a]cting upon the instructions of our auditing department and on the advice of our attorney. . . . ”

The overall issue of this case is the proper measure of recoverable damages. The jury found that the bank’s appropriation of the $10.00 was a conversion, that is, “an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owner’s right. . . . ” Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). “General damages” recoverable for a conversion are the value of the property converted, $10.00 plus interest, see cases collected at Mo. Digest, Trover and Conversion, <§=>44. In addition to this amount, plaintiff might recover “special damages” for the “natural, but not necessary, result of the wrongful act. . . . ” Condos v. Associated Transports, Inc., 453 S.W.2d 682, 688 (Mo.App.1970); 89 C.J.S. Trover and Conversion § 170. Usually, special damages must be specifically pled, § 509.200, V.A.M.S. In the present case, the only special damages specifically alleged in plaintiff’s petition were detriment to her reputation in the economic community. The only testimony relevant to this claimed injury was plaintiff’s statement that she “felt [that] because of that transaction, it damages my character as a person.” No evidence of refusals of credit or specific actions of the bank that might harm plaintiff’s credit rating was introduced. Any award of damages for the claimed injury to economic reputation in this context was totally unwarranted because plaintiff simply failed to shoulder the burden of proof to demonstrate injury, Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306, 310 (Mo.1967).

Although plaintiff pled no other special damages, plaintiff might still recover for other special damages if proven at trial without objection by the defendant, Mellor v. Missouri Pac. Ry. Co., 102 Mo. 270, 14 S.W. 758, 760 (Mo.1890) aff’d. 105 Mo. 455, 16 S.W. 849 (Mo.1891); 22 Am.Jur.2d, Damages, § 273; cf. Condos v. Associated Transports, Inc., supra at 690 (purpose of the special damages pleading rule is to prevent surprise). In the present case, plaintiff did testify, without objection by defendant, that she was angry, upset and embarrassed by the bank’s actions. On this appeal, plaintiff attempts to characterize these complaints as evidence of her severe emotional distress, see generally Restatement Second, Torts, §§ 46, 47. We recognize that mental anguish may be an injury compensable as special damages in a conversion action, 89 C.J.S. Trover and Conversion § 177. Without deciding whether plaintiff’s claims of being upset, angry and embarrassed rise to the level of severe emotional distress, see generally Restatement, Torts, Second, § 46 Comment d, we hold that any award of damages for these claimed injuries of plaintiff’s is unsupportable because they are entirely too speculative, see Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596, 604 (Mo.1968). There was, therefore, no justifiable basis for the jury’s award of $1500.00 as actual damages. The only compensatory damage proven was the $10.00 actually appropriated.

On the issue of punitive damages, however, we find that the trial judge erred in removing this issue from the jury’s consideration by a directed verdict. In reviewing the trial court’s direction of a verdict, we must determine whether, by construing all of the evidence and inferences therefrom favorably to plaintiff, a submissible case was made, Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811 (Mo.App.1975). To justify submission of the punitive damages issue to the jury, plaintiff must first prove entitlement to actual damages, Coonis v. Rogers, 429 S.W.2d 709 (Mo.1968). In the present case, plaintiff proved actual damages of $10.00.

Beyond proof of actual damage, the basis for an award of punitive damages is proof of malice in the sense that defendant is shown to have done a wrongful act intentionally and without just cause or excuse, Beggs v. Universal C.I.T. Credit Corp., 409 S.W.2d 719, 722 (Mo.1966). The evil intent which justifies punitive damages “. . . may be implied from reckless disregard of another’s rights and interests. .” id. at 723; Pashalian v. Big-4 Chev. Co., 348 S.W.2d 628, 637 (Mo.App.1961). A demonstration of a simple good faith mistake or ignorance as to the wrongfulness of the act constitutes a defense to the award of punitive damages, see e. g., McClellan v. Highland Sales & Inv. Co., 484 S.W.2d 239, 242 (Mo.1972); Price v. Ford Motor Credit Co., 530 S.W.2d 249, 253-54 (Mo.App.1975); Walker v. Huddleston, 261 S.W.2d 502 (Mo.App.1953).

Application of these general principles to the facts of the present case requires reversal of the trial court’s direction of a verdict. By submitting the issue of actual damages to the jury, the trial judge indicated his determination that there was sufficient evidence to support a finding that the bank’s appropriation of the $10.00 was a wrongful, unauthorized act. As to the bank’s awareness of the wrongfulness of its act, the bank advances two explanations. First, it is contended that the bank was entitled to rely on the statements of its teller that an overpayment had been made. This argument misses the issue. Construing all of the evidence in the light most favorable to plaintiff precludes us from finding that an overpayment was made. More importantly, even if an overpayment were made, that fact offers no justification for the bank’s forced settlement of the disputed claim by appropriation of plaintiff’s savings account. It is the bank’s self-help approach that constitutes the intentional, wrongful act justifying punitive damages. Secondly, the bank contends that it did not know its act was wrongful because it acted on the advice of its legal and auditing departments. This contention is based solely on statements in the bank’s January 28 letter to plaintiff that these departments had been consulted. This self-serving statement in the letter was not supported, however, because the bank did not call as a witness, any member of the legal or auditing departments. The mere statement in the letter cannot be considered as competent evidence to support a defense of a good faith mistake. Finally, we note that the bank has never attempted to offer plaintiff, or this court, any citation to legal authorization for its actions. Our review of the record in this case, therefore, discloses no basis for the trial court’s direction of a verdict on the issue of punitive damages.

We, therefore, remand this cause to the trial court with directions to enter a judgment for plaintiff for $10.00 plus interest and to hold such judgment in abeyance; to conduct a new trial on the issue of punitive damages. If on retrial punitive damages are found to be justified, an aggregate judgment for the amount of the punitive damages plus the $10.00, plus interest, should then be entered.

Judgment affirmed in part and reversed and remanded with directions.

STEWART and REINHARD, JJ., concur.


author: GUNN, Judge.

text:
    N. P. SANDBOTHE, Plaintiff-Appellant, v. Harold WILLIAMS et al., Defendants-Respondents.
    No. 38084.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 26, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.

      Shifrin, Treiman, Bamburg & Dempsey, Richard B. Dempsey, St. Louis, for plaintiff-appellant.
    Niedner, Moerschel, Ahlheim & Bodeaux, Paul P. Niedner, St. Charles, for defendants-respondents.
   GUNN, Judge.

Plaintiff-appellant, N. P. Sandbothe, brought a quantum meruit action against defendants-respondents to recover the reasonable value of services performed as a real estate broker in negotiating a sale and lease of property owned by defendants. Plaintiff in his suit alleged that the total value of his services was $34,500; that he had received $7,500 in part payment; and that defendants were entitled to a $450 credit, leaving a balance of $26,550 owed by defendants to plaintiff. The defendants moved for a judgment in their favor after pleading that plaintiff was not a licensed real estate broker at the time he performed the services and that he was barred from recovery on his suit under § 339.160. The plaintiff stipulated in trial court that he did not receive his real estate broker’s license until July 1, 1969, and except for the final closing transaction held on July 25,1969, all services were performed by plaintiff without any license and prior to July 1, 1969. The trial court entered judgment in favor of defendants, and plaintiff has appealed; we affirm.

According to the pleadings, on April 10, 1969, plaintiff and defendants entered into an oral agreement whereby plaintiff was to obtain a buyer and secure leasing arrangements for land owned by defendants in Hazelwood, Missouri. Plaintiff was successful in his efforts and secured a purchaser for the land and also negotiated some leases pertaining to the land. The contract for sale was entered into on June 17, 1969 with the closing date designated as July 25, 1969. The sales contract for the sale and lease of the land provided that defendants were to pay plaintiff $7,500 on closing, which was done. However, plaintiff alleges that pursuant to the oral agreement, previously mentioned, defendants were to pay plaintiff an additional $26,550.

The procedural development of this case is somewhat anomalous. On the date the case was set for trial, defendants filed an amended answer alleging for the first time that plaintiff was not licensed as a real estate broker during the period he negotiated the sale and lease of defendants’ property. The plaintiff waived any objection to the late filing of the amended answer. On the same day the defendants filed a motion labelled “motion for Judgment by defendants.” During a conference in chambers, plaintiff stipulated that he had obtained a license after actually rendering the services. In view of this stipulation, the court sustained defendants’ motion for judgment. On appeal, the plaintiff contends that defendants’ motion was one for summary judgment and that the procedures governing summary judgments set out in Rule 74.04 had not been followed. Furthermore, plaintiff claims that the case was not ripe for summary judgment as material facts were in dispute. While it is unclear whether defendant’s motion was for summary judgment or for judgment on the pleadings, we believe that this issue need not be resolved. As will be revealed in the course of the opinion, the plaintiff’s lack of a real estate license while performing the services in question conclusively bars the plaintiff from recovering the reasonable value of his services.

On July 1, 1969, plaintiff obtained a Missouri real estate broker’s license. Plaintiff readily admits that the services which he performed for defendants were complete prior to the date of obtaining his license. He contends, however, that he is entitled to maintain this action because he was a licensed broker when the alleged cause of action which he had against defendants arose within the meaning of § 339.160. Section 339.160, which closes Missouri courts to unlicensed persons seeking to recover compensation for services rendered in real estate transactions, provides as follows:

“No person, copartnership, corporation or association engaged within this state in the business or acting in the capacity of a real estate broker or real estate salesman shall bring or maintain an action in any court in this state for the recovery of compensation for services rendered in the buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate without alleging and proving that such person, co-partnership, corporation, or association was a licensed real estate broker or salesman at the time when the alleged cause of action arose.” (emphasis added)

Plaintiff argues that pursuant to his oral agreement with defendants his right to commission was contingent upon the occurrence of two events — the closing of the sale and the construction of a service station on the property sold; that these two events could occur only after July 1,1969, the date of his license. Hence, so plaintiff syllogizes, his cause of action arose after the date of his license and he would thereby be entitled to recovery under § 339.160. In support of his position, plaintiff relies on statute of limitation cases holding that when payment of a real estate commission is conditioned on the occurrence of a particular event, the statute begins to run only on the happening of the event. See e. g., Boyd v. Margolin, 421 S.W.2d 761 (Mo.1967); Rayfield v. Radford, 404 S.W.2d 428 (Mo.App.1966). We believe plaintiff’s position to be dissonant with other provisions of Chapter 339, regulating real estate agents and brokers, and repugnant to public policy underlying the entire chapter.

In construing § 339.160, and particularly the phrase “when the alleged cause of action arose,” we advert to the cardinal rule of statutory construction that “the entire act must be construed together to carry out the legislative intent and all the provisions of the act must be harmonized, if reasonably possible, and effect must be given to every word, clause, sentence, paragraph and section of the act.” Gilbert v. Edwards, 276 S.W.2d 611, 617-18 (Mo.App.1955). See also Miller Nationwide R. E. Corp. v. Sikeston Motel Corp., 418 S.W.2d 173 (Mo.1967); Ross v. Conco Quarry, Inc., 543 S.W.2d 568 (Mo.App.1976). We must therefore examine other pertinent provisions of Chapter 339 in order to ascertain the legislative intent underlying the entire chapter and then construe § 339.160 so that it is consistent and congruent with that intent.

The critical feature of Chapter 339 is § 339.020 which makes it unlawful for persons to act as real estate brokers without first procuring a license. It is a misdemeanor to violate the provisions of Chapter 339 by acting as a real estate broker without a license.

In negotiating the sale and lease of defendants’ land between April 10 and July 1 without a real estate license, plaintiff was in violation of § 339.020. As a result, the April 10 agreement which called for plaintiff’s performance of proscribed acts of a real estate agent was void and unenforceable. Schoene v. Hickam, 397 S.W.2d 596 (Mo.1965); Gilbert v. Edwards, supra. The fact that plaintiff seeks to recover his commission in quantum meruit rather than on the oral contract is of no consequence. As said in Sehoene v. Hickam, supra at 602: “Where a statute requires a broker to obtain a license before sales of the kind in question can be negotiated by him, there is no doubt that if such a sale is made by one acting as a broker without the required license, he can recover no compensation for his services.” The plaintiff’s reading of § 339.160 would enable him to circumvent and thwart the principle articulated in Schoene v. Hickam, supra, as well as the § 339.020 absolute proscription against unlicensed activity as a real estate broker. We believe that there is a strong public policy, as well as a statutory prohibition, against reward for illegal activity such as profiting as a real estate broker without the required license. We also find it evident that Chapter 339 does not intend to permit an individual to be compensated merely by obtaining a cachet in the form of a license prior to the time commissions are due. In effect, plaintiff seeks to legitimatize the illegitimate by postponing the date on which he would receive payment for his illegal activities. The acquisition of the real estate broker’s license after the fact does not serve as a catharsis for unlawful activities, as § 339.020 specifically requires a license to be procured prior to the performance of a broker’s services. “The principle is well settled that no court will lend its aid to a man who founds his cause of action upon an illegal act. This is a principle founded upon public policy, not for the sake of the defendant, but for the law’s sake, and that only.” Schoene v. Hickam, supra at 602. See also Gilbert v. Edwards, supra at 620. We therefore reject plaintiff’s reading of § 339.160.

It is also clear that in enacting § 339.020 and § 339.170, the legislature manifested an intent to protect the public from fraud and incompetency. Miller Nationwide R. E. Corp. v. Sikeston Motel Corp., supra; Gilbert v. Edwards supra. As said in Gilbert v. Edwards, supra at 616:

“It is readily seen from an examination of this section [§ 339.040] and the other provisions of Chapter 339 that it was the evident intention of the Legislature to protect the public against fraud and incompetency in real estate transactions. It has also been held that laws such as we are considering, in addition to giving protection to the public, give protection to the ethical members of the profession under scrutiny, who, having complied with the law in letter and spirit, would, under any other interpretation, be subjected to competition by persons who had violated the law, both in letter and in spirit. This is merely an incidental protection.”

Permitting plaintiff’s claim would clash directly with the pronounced intent of the legislature as set forth in Gilbert.

We find that § 339.160, requiring that a person must plead and prove that he was a licensed real estate broker at the time “when the alleged cause of action arose,” when harmonized with the rest of Chapter 339, must be construed to require the plaintiff to plead and prove that he was a licensed real estate broker at the time he performed the real estate broker’s services for which he seeks to be compensated. Any contrary holding would thoroughly enervate the statutory scheme prohibiting unlicensed persons from acting as real estate brokers as well as the legislative intent to protect the public from fraud and incompetence.

The plaintiff presents the rather remarkable contention that it would be too harsh to prevent a broker from claiming his fee when he had complied with all statutory regulations and taken his examination but that “the formality of the issuance of the license had been delayed by some administrative or clerical malfunction.” The record is destitute of anything to suggest a malfunction in the issuance of plaintiff’s license which kept him from having it at the time of his transaction with defendants. Plaintiff’s argument in this regard is rather apocryphal. It is palpable that plaintiff simply functioned as a real estate broker without benefit of license, knowing full well he was not qualified.

Plaintiff was not licensed at the time he performed his real estate broker’s services, and he is foreclosed by § 339.160 from bringing action to collect for those services. The trial court’s judgment in favor of defendants is affirmed.

KELLY, P. J., and WEIER, J., concur.

        . Statutory references are to RSMo 1969.

      . The oral agreement and transactions occurred in 1969. April 19, 1976 was the date of the hearing on the motions of the parties and the trial court’s ruling. Except for the fact that plaintiff filed five amended petitions, the record does not disclose the cause for the time lapse between the transactions and hearing.

      . The oral agreement for payment of the real estate broker’s commission in this case would not conflict with the statute of frauds. E. A. Mabes & Co. v. Fishman, 284 S.W.2d 21 (Mo.App.1955).

      . Even if we were to accept the plaintiffs construction of § 339.160, he would not be entitled to recover the balance of his commission even now. The plaintiff alleges that pursuant to his oral contract with defendants, he was to receive $7,500 on the closing date and the remainder at such time as a service station was built and commenced operation on the premises. He has already received $7,500, and there is nothing in the record to show that the service station has been constructed. Despite the fact that plaintiff is suing in quantum meruit rather than on the oral contract, his right to recover the value of his services still would not arise until he pleads and proves the occurrence of the condition precedent to his right to receive the remainder of his commission. “[A] plaintiff cannot recover in indebitatus assump-sit on the quantum meruit where there appears an express contract yet open; that is, not rescinded or executed.” American Surety Co. v. Fruin-Bambrick Const_Co., 182 Mo.App. 667, 166 S.W. 333, 334 (1914). See also Krupnick & Assoc., Inc. v. Helimich, 378 S.W.2d 562 (Mo.1964); Perles & Stone v. Childs Co., 340 Mo. 1125, 104 S.W.2d 361 (Mo.1937).

      . Section 339.020 provides:
      “It shall be unlawful for any person, copart-nership, association or corporation, foreign or domestic, to act as a real estate broker or real estate salesman, or to advertise or assume to act as such without a license first procured from the Missouri real estate commission.

      . Section 339.170.

      . Section 339.150 prohibits licensed brokers from sharing their commissions with unlicensed persons. It thus seems somewhat fatuous that an unlicensed person would be entitled to perform a broker’s services and ultimately be paid for such services by the future act of obtaining a license.