author: KELLY, Judge.

text:
    In re the ESTATE of Mildred STENGEL, Deceased. Ann WESTHOUSE, Petitioner-Appellant, v. Anna Mae SOUTHARD et al., Defendants, and Tower Grove Bank & Trust Company and Anna Mae Southard, as Executors of the Estate of Mildred Stengel, Deceased, Defendants-Respondents.
    No. 37769.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 27, 1977.

      Edward C. Westhouse, St. Louis, for petitioner-appellant.
    Dubail, Judge, Kilker & Maier, William C. Maier, Charles R. Judge, St. Louis, for defendants-respondents.
   KELLY, Judge.

In this appeal from a judgment of the Circuit Court of the City of St. Louis the question for decision is whether the term “personal effects,” as used in the context of the testatrix’s will, must be construed to include not only tangible personal property but also intangible personal property such as stocks, bonds and other items inventoried as assets of the Estate. The Circuit Court held they were not. We affirm.

Mildred Stengel, the testatrix, died on November 28, 1973, her last will and testament was filed in the Probate Court of the City of St. Louis on November 29, 1973, letters were granted, and Anna Mae South-ard and the Tower Grove Bank and Trust Company were appointed co-executors thereof as provided in Article Fifth of the will. On January 24, 1974, an Inventory and Appraisement listing the assets of the estate and their fair market value as of the date of death of the testatrix was filed. On February 27, 1974, at the instance of the executors an order of partial distribution was granted. This litigation was instituted on December 5, 1974, by Mrs. Ann West-house, a legatee under the will, by the filing of a Petition for Determining the Interest of Legatees and for an Order of Distribution in the Probate Court of the City of St. Louis. Although Mrs. Westhouse alleged that she filed this Petition for and on behalf of herself and the other individual legatees mentioned in Article Third (a) of the will, she also alleged that they had refused to join her in the action and they have refused to join her throughout this litigation as party-petitioners. Following an adverse ruling in the Probate Court, Mrs. West-house (hereinafter “the Petitioner”) took an appeal to the Circuit Court of the City of St. Louis where the Petition was tried de novo. Sections 472.200 and 472.250 RSMo. 1969. There again an adverse judgment was entered and this appeal followed.

The Petition here is in two Counts. In Count I Petitioner sought a determination of the interest of herself and the other legatees under Article Third (a) of the will to certain items inventoried as assets of the estate which the executors have refused to distribute to the Petitioner and the other legatees named therein. She also prayed that if the distribution of these assets could not be jointly made without material injury to the rights of. the legatees thereto as individuals, that a sale of said items be ordered and the proceeds therefrom be divided between the legatees under the will according to their individual rights. Named as defendants were each legatee named in the will and the executors in their representative capacities.

Count II sought an order requiring the executors of the estate to inventory and value some sheets of piano music, the exact number of sheets being unknown to the Petitioner, but alleged “to be over one thousand,” and to recover them from the possession of Caroline Wessbecker to whom they had been distributed as a part of Ms. Wess-becker’s distributive share of the estate under Article Second (b) of the will. Alternatively, if the executors were unable to recover this sheet music, the Petition prayed that they be surcharged for the value of this sheet music.

An allowance for reasonable attorney’s fees and costs of suit were prayed in each Count.

The Circuit Court, after hearing, entered findings of fact and judgment as follows:

“. . . that the Will of testatrix admitted to probate is unambiguous, that the legacy provided in Article Third (a) bequeathed only tangible personal property located in the home of testatrix not otherwise disposed of in Article Second (a) and (b), and that said legacy was fully satisfied by the distribution effected in March, 1974 pursuant to the Order of Partial Distribution previously entered by the Probate Court.
“Alternatively, the Court finds that if the Will of testatrix admitted to probate is ambiguous, that her prior Wills making the identical residuary disposition of her estate fully evidences her intent, (sic)— to bequeath balance of all ‘personal effects’ etc., not just those coming from husband’s estate.
“The Court further finds that the inventory filed in the Probate Court discloses an estate requiring the filing of a Federal Estate Tax Return on or before August 26,1974, but because the residuary estate was devised and bequeathed to a tax exempt organization no tax was payable. That petitioners (sic) delay until December 13, 1974 (sic) in instituting these proceedings prejudiced respondents and constitutes laches barring any recovery. “Court further finds that distribution of sheet music to the legatee of the piano constituted proper disposition thereof.”

Judgment was entered that the Petition be dismissed and that judgment be entered in favor of the “Respondents” and against Petitioner on Counts I and II of the Petition.

On appeal the Petitioner presents to this court six Points Relied On. The initial Point charges that the Circuit Court erred in permitting the executors to make this a contested case between the executors and the Petitioner on the grounds that they are not an “interested party.” The executors were not only a proper party, they were necessary parties. In a will construction suit all of the parties interested in the subject matter of the suit must be made parties thereto. In re Gordes Estate, 116 S.W.2d 207, 209[7] (Mo.App.1938). Not only were these executors made a party to this proceeding, but as executors they also had an interest in seeing that the will was properly construed and in conserving the assets of the estate for the purposes to which they were to be eventually devoted. First Trust Co. v. Myers, 239 Mo.App. 403, 188 S.W.2d 519, 522 (1945). There is no merit to this contention.

Petitioner’s second Point attacks four of the findings of the Circuit Court on the grounds “there was no evidence introduced to even tend to prove these findings.” The findings Petitioner contends have no evidence to support them are:

1) that the Petitioner was guilty of lach-es,
2) that the testatrix’s intention was to bequeath only tangible personal property located in testatrix’s home to the legatees named in Article Three (a) of the will,
3) that the partial order of distribution was fully ratified by the March 1974 distribution and precluded the petitioner from filing this will construction suit, and
4)that a prior will shows the intention of testatrix to bequeath all intangible property to the remainderman.

We find no finding that corresponds to the third “finding” under this Point in the findings of fact and judgment herein. While the Circuit Court did find that the legatees named in Article Third (a) of the will were unable to otherwise agree upon the selection of articles bequeathed thereunder and therefore agreed to draw numbers from 1 through 5 and in that order select and tag items in the home of the testatrix; that they met in March, 1974, at decedent’s home and in the order drawn selected and tagged articles of their respective choices; that at the conclusion of this procedure there remained unselected certain sheet music which was thereupon delivered to Caroline Wessbecker as part of the bequest of the piano; and that no objection to this distribution was made until the filing of the Petition then before the court. However, at no place in the findings does the Circuit Court find that this constituted a ratification of that order of distribution by Petitioner. The facts there found were supported by the evidence.

Because of the decision we reach we find it unnecessary to dispose of sub-points 1 and 4 at this time but shall do so hereinafter.

In reaching our decision there were certain fundamental legal principles we found necessary to bear in mind. With respect to our function in reviewing the judgment of the Circuit Court we must review this case upon both the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the Circuit Court to have judged the credibility of the witnesses. Rule 73.01, subd. 3(b). The decree or judgment of the Circuit Court should be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law; and the power to set aside a decree or judgment on the ground that it is against the weight of the evidence should be exercised with caution and with a firm belief that the decree or judgment is wrong. Murphy v. Carrón, 536 S.W.2d 30, 32[1, 2] (Mo. banc, 1976).

Because of the nature of this proceeding — a will construction case — it is necessary that the intention of the testatrix be ascertained, and if that intention is plain and unambiguous, it must govern, provided it is not contrary to law. If the will to be construed contains plain and unambiguous language courts give effect thereto. The function of the court is to construe the will as it is written by the testatrix and not to make or rewrite one for the testatrix under the guise of construction. The testatrix is presumed to know and intend the legal effect of the language she employs in her will, and courts give the words used by a testatrix in her will their plain and ordinary meaning. First National Bank of Kansas City v. Danforth, 523 S.W.2d 808, 816[1, 2, 3, 4, 5] (Mo.1975). We should, where possible, ascertain the testatrix’s intention from the four corners of the will and construe it, if possible, to give effect to all of its provisions, and it is only when a will is read from its four corners that there exists doubt as to what the testator intended that resort may be made to rules of construction to aid in determining the intention of the testatrix. Scullin v. Mercantile-Commerce Bank & Trust Co., 361 Mo. 337, 234 S.W.2d 597, 601-602[2-6] (1950).

The Petitioner, in a memorandum of law incorporated in the transcript on appeal, has stated: “It is petitioner’s contention that there is no ambiguity in the Last Will and Testament of Mildred Stengel.” The Circuit Court concurred in this and found no ambiguity. The issue though is the meaning of the term “personal effects” as that term is employed in article Third (a) of the testatrix’s will which is:

“THIRD: (a) Balance of household goods, furniture, personal effects and automobile to CAROLINE WESSBECKER, ANNA MAE SOUTHARD, ANN WEST-HOUSE, EMMA EBEL and YVONNE KRANKEL, or to the survivors of them, jointly, or as they may agree. Any items not distributed in accordance herewith shall be sold by my Executors.”

Inventoried as assets of the estate, and the bones of contention here, were the following, together with their valuation:

Series E and H government bonds .$33,546.24
Stocks — 682 shares. 6,219.14
Savings & Loan Accounts 20,204.96
Cash . 206.28
Jewelry:
1) 1 lady’s pocket watch with chain.$ 50.00
2) 1 metal ring with large white center stone and 8 smaller white stones surrounding it . 400.00 450.00
Coins and Currency. 114.50

In addition to the foregoing, furniture and the contents of a breakfront in the home of the testatrix at 4026 Arsenal Street, St. Louis, were inventoried and valued at $350.00.

According to the uncontradicted evidence, after the order of partial distribution of February 27, 1974, the executors and the legatees named in Article Third (a) met at testatrix’s home sometime in March, 1974, and distributed the household goods and furniture there among themselves, except for the contents of the breakfront which was bequeathed to Lucille McKinney, a cousin of the testatrix, in Article Second (a). The distribution was accomplished by each legatee under Article Three drawing a number from 1 to 5 and then in that order choosing an item of household goods or furniture the particular legatee wanted. The item was then tagged so that it could be identified as belonging to one of the legatees. During this procedure no mention was made concerning the distribution of the assets here under discussion, other than the sheet music, by anyone. Ms. Southard testified that she recalled that Mrs. Westhouse had made a passing reference to it during that day, but because Ms. Southard was in a hurry to get to her shop, she told her that could not be done that day. The first the executors knew there was any question about these items was when they were served with the papers following the institution of this proceeding.

The term “personal effects” has been construed by the appellate courts of this State on only one prior occasion in a case involving a will. In Barnes v. Maddox, 245 S.W. 208 (Mo.App.1922) the testatrix bequeathed to a friend for the purpose of distribution in accordance with memoranda previously given “all my household goods, pictures, furniture, chinaware, silver, jewelry, clothing, heirlooms and personal effects and property.” The court in Barnes held that the testatrix did not intend to bequeath to her friend as “personal effects” government bonds or money she had amounting to something in the neighborhood of $900.00. The court said, 1. c. 210:

“She makes it very clear, we think, that by item 8 she only intended to dispose of household goods and such other property and effects as might be termed keepsakes, tokens and remembrances.”

In ascertaining the intent of the testatrix in Barnes the court made reference to item 7 of the will wherein the testatrix had devised to her friend absolute title in fee simple to a portion of certain lands owned by the testatrix and concluded from this devise that had the testatrix intended that her friend have the government bonds and note in issue, the testatrix would have insisted that these items be included in that item of her will.

It is our opinion, based upon our research, that the term “personal effects” when employed in a will enjoys no settled technical meaning and, when used in its primary sense, without any qualifying words, ordinarily embraces such tangible property as is worn or carried about the person, or tangible property having some intimate relation to the person of the testator or testatrix. We do not, however, opine that where it is required by the context within which the term appears that it might not enjoy a broader meaning. Blacks’ Law Dictionary (4th Ed.) defines the term as “Articles associated with (the) person, as property having more or less intimate relation to (the) person of possessor; ‘effects’ meaning movable or chattel property of any kind.” Cases from other jurisdictions have defined the term similarly and the primary theme running through these definitions is the intimate connection with the person. Anno. 30 A.L.R.3rd 797 et seq.

In attempting to ascertain the meaning of the term here we, as has been done in other cases, look at the testamentary plan as a whole to discover what the testatrix intended the term “personal effects” to mean in the context of her last will and testament.

In Article First the testatrix directed her executors to pay her lawful debts, including the costs of her last illness and funeral, an “at the expense of my Estate” that a grave marker similar to the one marking the grave of her deceased husband, “William C. Binder,” be provided and that her name be inscribed thereon as “Mildred Binder.”

Article Second consisted of a number of specific bequests. To her cousin, Lucille McKinney, she bequeathed the contents of her breakfront; to Caroline Wessbecker, her piano and $3,000.00; to William and Anna Mae Southard, $5,000.00; to her aunt, Emma Ebel, $1,000.00; to George and Yvonne Krankel, $2,000.00; and to the United Church of Christ (Evangelical) of Columbia, Illinois, $1,000.00. Coupled with the bequest to the Southards was a request that they take charge of and care for testatrix’s dog.

Article Fourth devised and bequeathed the rest, residue and remainder of her estate, real, personal or mixed and wheresoever situated, to the Monroe County Nursing Home in Waterloo, Illinois, for chapel improvements in memory of “William C. and Mildred Binder.”

It is in this context that we attempt to discern the meaning intended by the testatrix when she employed the term “personal effects” in Article Third (a) of her Last Will and Testament.

Unlike her co-legatees under Article Third (a) Petitioner here received nothing by way of Article Second; the only bequest to her was that set out in Article Third (a).

We believe that it is quite clear that, except for the specific bequests made in Article Second and Article Third (a) of testatrix’s Last Will and Testament, she intended the bulk of her estate should pass to the Monroe County Nursing Home as residuary legatee under Article Fourth “for chapel improvements” in memory of her husband and herself. The Circuit Court also concluded that this was her intent by its findings and judgment, and adjudged that the term “personal effects” in the context of her will was restricted to her personal effects located in her home and not otherwise disposed of by her in Articles Second and Third (a) of her Last Will and Testament, and we are firmly convinced that where the construction given an instrument by the trial court appears to be reasonable and consistent with the intent of the testatrix, we, as the appellate court reviewing the trial court’s construction of said instrument, should not substitute another interpretation thereof even though it seems equally tenable. Murphy v. Carron, supra; In re Platt’s Estate, 21 Cal.2d 343, 131 P.2d 825, 831 (1942).

We have already taken note of the testatrix’s desire to establish a memorial for herself and her deceased husband in Article Fourth of her Last Will and Testament, and it is m this light that the term “personal effects” should be construed. The personalty of this estate consisting of bonds, stocks, savings and loan accounts, cash, jewelry and coins and currency was valued at $60,-741.12. From this amount cash bequests totalling $12,000.00 have been distributed pursuant to the partial distribution order of February 27,1974. What debts, if any, and other expenditures the executors have or will be required to make out of these assets pursuant to the directions of the testatrix contained in Article First of her will are not contained in this record and we do not know what remains in the estate but may assume that all of these yet remain in the absence of any evidence to the contrary.

We hold, as did the Circuit Court, that the testatrix employed the term “personal effects” in its primary sense, i. e., tangible personal property that is worn or carried about the person, or tangible property having some intimate relation to the person of the testatrix. Employed in this sense, the term did not include the bonds, stocks, savings and loan accounts, cash, coins and currency. Barnes v. Maddox, supra; Mokros v. Blackman, 312 Ill.App. 346, 38 N.E.2d 514, 517[2] (1941).

The only item remaining to be considered is the jewelry. Whether jewelry passes as “personal effects” is a question on which there is a split of authority. See In re Gault’s Estate, 48 N.Y.S.2d 928, 929[1] (Sur. 1944); In re Kordes’ Will, 192 Misc. 626, 82 N.Y.S.2d 499, 500[3] (1948); In re De Paris’ Estate, 23 Misc.2d 1091, 202 N.Y.S.2d 760, 762[4] (1960); Re Steimes’ Estate, 150 Misc. 279, 270 N.Y.S. 339, 340-345[1] (1948); and In re Horner’s Will, 82 N.Y.S.2d 491, 493[3] (Sur.1948). Each case seems to be decided on its own peculiar facts.

The term “personal effects” as used in Article Third (a) comes after a bequest of the “Balance of household goods, furniture .” and is followed by “and automobile.” Employing the doctrine of ejusdem generis the Circuit Court could have found that the personal effects the testatrix intended to pass under this Article were “personal effects” in her home as might be termed “keepsakes, tokens and remembrances.” Barnes v. Maddox, supra. The record fails to establish that these two items of jewelry were worn as adornments by the testatrix or were kept by her as keepsakes, tokens or remembrances. During oral argument counsel for the respondent was asked where these items of jewelry were found when the inventory was conducted and he replied that they were found in a safe deposit box. Petitioner’s counsel — her husband — did not contest this fact. We opine that the Circuit Court could reasonably conclude that this jewelry was not intended by the testatrix to be included in the term “personal effects” as employed in Article Third (a) of her Last Will and Testament and find no error in its so holding.

In view of our holding that the finding of the Circuit Court that it was the testatrix’s intention to bequeath only tangible personal property located in her home under Article Three (a) to Petitioner and her co-legatees, whether the further finding that Petitioner was guilty of laches is moot and cannot affect the decision we have reached. Therefore we find it unnecessary to decide this sub-point of Petitioner’s first Point.

In disposing of Petitioner’s contention that the Circuit Court’s finding that a prior will showed the intention of the testatrix to bequeath all intangible personal property to the remainderman, we consider it together with Petitioner’s third Point, that the Circuit Court erred in admitting a prior will into evidence over her objection and considering it and basing its conclusions partially on its contents.

The Circuit Court made it clear in its findings that in this court tried case this evidence was admitted and considered if testatrix’s will was found to be ambiguous. The Circuit Court found that the will was not ambiguous, but, in an excess of caution, made an alternative finding in case the will should be found to be ambiguous. A trial court in a court tried case has wide latitude in the admission of evidence, and even in those instances where it concludes that the evidence is not admissible may, where the evidence is brief and not privileged, permit the same and any cross-examination relating thereto or evidence in rebuttal thereof and preserve same apart from the evidence received. Rule 78.01, subd. 1(a). Whether this evidence would have been properly admitted and considered had the will been found to be ambiguous we need not decide because we have concluded that the intention of the testatrix could be gleaned from the four corners of the document itself without the aid of extrinsic evidence. Having so found, the Petitioner could not have been prejudiced by the admission into evidence of this prior will and we so hold.

Petitioner’s fourth Point, that the Circuit Court erred in not finding that the bequest under Article Third (a) of the testatrix’s will bequeathed to Petitioner and the four other legatees named therein included both tangible and intangible personal property of the testatrix has already been decided hereinabove and found to be without merit in ruling on Petitioner’s second Point.

The fifth Point presented by Petitioner, that the Circuit Court erred in finding that the distribution of the sheet music to Caroline Wessbecker under Article Second (b) of testatrix’s will constituted a proper distribution is, in our humble opinion likewise without merit.

From the evidence, this sheet music was in the basement of the testatrix’s home at the time the partial distribution of the household goods, furniture and personal effects of the testatrix took place. Although the Petitioner observed this sheet music in the basement at that time she made no claim to the sheet music other than to inquire of Mrs. Southard if she could have the “Tchaichkowsy.” (sic) Due to Mrs. South-ard’s hurry to get to her shop, she told petitioner that it could not be done at that time. It was not until this petition was filed, approximately nine months later, that Petitioner made any inquiry about the sheet music. At some time in the interim the sheet music was distributed to Ms. Wess-becker along with the piano bequeathed to her under Article Second (b).

Petitioner has cited no authority in support of her position, but argues "that the bequest of a “piano” does not include other property not specifically mentioned in connection with “piano” or includable within the definition of the word “piano.” Although Petitioner alleged that there were approximately 1000 sheets of music she offered no evidence to support this allegation or that these sheets of music would comprise “personal effects,” in the restricted sense of the term, or household goods or furniture. She has failed to prove that these sheets of music had any value whatsoever. Under these circumstances we hold that the Circuit Court’s finding that these sheets of music were properly distributed under Article Second (b) to Ms. Wessbecker was not unreasonable and that this Point is without merit.

Petitioner’s sixth, and final Point, is that the Circuit Court erred in not retaining jurisdiction for the later determination of attorney’s fees. This Point, like Petitioner’s prior Points, also lacks merit. Except in those instances where the construction of a will may affect the corpus of a trust estate, only the executor may be awarded attorney’s fees in an action to construe a will. Magruder v. Magruder, 525 S.W.2d 400, 408[14] (Mo.App.1975); First Trust Company v. Myers, 239 Mo.App. 403, 188 S.W.2d 519, 522[6] (1945).

Judgment of the Circuit Court is affirmed.

SIMEONE, C. J., and GUNN, P. J., concur.

      . In Utchen v. American Casualty Co. of Reading, Pa., 356 S.W.2d 102, 104[2] (Mo.App.1962) the term “effects” was defined in an action on a personal effects insurance policy.

      . Estate of Johnson, 5 Cal.App.3d 173, 84 Cal. Rptr. 914, 918[2] (1970); In re Douglass’s Estate, 70 Cal.App.2d 279, 282, 289, 161 P.2d 66, 68, 69[2] (1945); In re Sorensen’s Estate, 46 Cal.App.2d 35, 38, 115 P.2d 241, 243[6] (1941); Mokros v. Blackman, 312 Ill.App. 346, 38 N.E.2d 514, 517[2] (1941); In re Estate of Reitz, 213 Kan. 534, 516 P.2d 909, 911[2] (1974); Ga-ston v. Gaston, 320 Mass. 627, 70 N.E.2d 527, 528[3] (1947); In re Minniss’ Will, 200 Mise. 353, 107 N.Y.2d 35, 36[1] (1951); In re Steimes’ Estate, 150 Misc. 279, 270 N.Y.S. 339, 341[1] (1934); In re Jones’ Estate, 128 Mise. 244, 218 N.Y.S. 380, 381 [1] (1926); and In re Beisgen’s Estate, 387 Pa. 425, 128 A.2d 52, 56[8] (1956).


source: Caselaw Access Project

author: SIMEONE, Chief Judge.

license: Public Domain

text:
    In the Matter of Carl F. SEISER, a/k/a Carl Seiser, Deceased. ESTATE of Carl F. SEISER, Robert C. Seiser and Elsie Roddeck, Administrators, Appellants, v. Berenice Ruth MEIER, Respondent.
    No. 38216.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 11, 1977.

      Wion, Burke & Boll, Robert S. Moss and J. Lloyd Wion, Clayton, for appellants.
    Fred Roth and Denis L. Taylor, Clayton, for respondent.
   SIMEONE, Chief Judge.

This is an appeal by the administrators of the estate of Carl F. Seiser, deceased, from an order of the circuit court of St. Louis County dated May 27,1976 granting to the respondent-claimant, Berenice Ruth Meier, a trial de novo upon her claim against the estate of Mr. Seiser after the probate court had earlier by order denied her motion to set aside an allowance of her claim against the decedent’s estate.

The events leading up to this appeal are as follows. After the demise of Carl F. Seiser an estate was opened in the probate court of St. Louis County. On February 13, 1975 Berenice Ruth Meier filed a claim for $95,400.00 for numerous services rendered Mr. Seiser at his request from 1947 to the date of his death. These services consisted of helping decedent with his reading, writing and spelling, washing and pressing clothes, doing research on various securities, bringing dividend checks to his broker, furnishing food and drink, etc. A hearing on the claim was set for April 7,1975. On that date the parties by and through their attorneys entered into a stipulation whereby the claim of Berenice Meier was allowed in the sum of '$5,000.00. The stipulation was signed by the attorney for the claimant and by the attorney for the administrators. On the same date the probate court entered an order, pursuant to the stipulation, allowing the claim of Berenice Ruth Meier in the sum of $5,000.00 and placed it in the fifth class. Costs were assessed against the estate.

On July 21,1975, some 104 days after the entry of the order allowing the claim, Miss Meier filed her motion to set aside the order of April 7, 1975 allowing her claim for the reason that “after due deliberation, reconsideration and thorough reasoning about the matter, she feels that the agreement that she originally made is inadequate and therefore desires to have her claim heard by [the probate] Court in full.” In the motion she requested that her claim be reinstated on the docket for a hearing. The administrators, appellants here, by their motion urged the probate court, for several reasons, to deny her motion to set aside the order of allowance.

On August 8, 1975, the probate court heard the motion to set aside, and, after hearing testimony from the movant and arguments, the probate court found “no good reason” to set aside the order allowing her claim because “the only evidence being that movant, the claimant, felt that the settlement of the claim was for an inadequate amount, there being no evidence of fraud, undue influence, mistake or mental incapacity.” The probate court therefore denied the motion to set aside the allowance granted on April 7, 1975.

On August 20, 1975, an appeal by Miss Meier was taken to the circuit court. In the circuit court a series of affidavits were filed by Miss Meier and several other persons between March 23, 1976 and May 1, 1976. In the affidavit of Berenice Ruth Meier she swore that she performed numerous services for the benefit of the decedent and reiterated the statements made in the original claim filed on February 13,1975 in the probate court. She also stated that she was engaged to the decedent and that he purchased a ring for her. She further stated, “I realized after I agreed to settle my claim for $5,000.00 that it was grossly inadequate and after I deliberated and reconsidered ... I realized that it was a miscarriage of justice and a gross mistake to settle as cheaply.” The affidavits of the several other persons reinforced the statements that Berenice Meier performed services for the decedent over the years and were in most respects identical to the affidavit of claimant.

On May 27,1976 the circuit court entered the following order:

“Petitioner [sic] request for a Trial de novo, against the Estate in its entirety granted.”

Within ten days, and on June 4,1976, the administrators of the estate appealed the order of the circuit court granting a trial de novo.

On this appeal the thrust of the appellants’ several contentions is that the circuit court lacked jurisdiction to enter the order granting a trial de novo. The respondent contends otherwise and argues that the order of the circuit court granting the trial de novo is not an appealable order because it does not dispose of all the issues in the case and leaves the controversy for further determination. She argues that there has not been a determination in the circuit court on the merits, for as the matter now stands the appellants-administrators can assert as a defense in the circuit court the settlement agreement and the appellants could still be successful in the circuit court.

The appellants argue in their reply brief that the matter is ripe for appeal and that the order of the circuit court is an appeala-ble order because (1) the sole issue before the circuit court was whether or not the probate court’s order of April 7,1975 should be set aside and that issue was decided when the circuit court granted the trial de novo and (2) section 512.020 RSMo. permits any party to take an appeal to a court having appellate jurisdiction from any order granting a new trial.

After examining the transcript and the authorities relied upon by the parties we are convinced that the order of the circuit court is not an appealable order and that the appeal in the posture presented must be dismissed as premature. It is our duty to determine if a final appealable judgment has been rendered before we undertake to consider the merits. It has been ruled many times that to be appealable the order or judgment must be final and dispose of all the issues in the cause. Spires v. Edgar, 513 S.W.2d 372, 373 (Mo.banc 1974); Federal Deposit Insurance Corporation v. Crismon, 516 S.W.2d 57, 58 (Mo.App.1974); In re Estate of Ritter, 510 S.W.2d 188, 189 (Mo.App.1974).

The order of the circuit court appealed from does not finally resolve all the issues before the trial court. The merits of the claim and the effect of the settlement have not been passed upon. The issue as presented by the appellants is one of jurisdiction of the trial court to entertain a trial de novo at all. The thrust of the appellants’ attack on the order of the circuit court is a lack of jurisdiction to entertain an appeal from the order of the probate court denying the motion to set aside the allowance of April 7, 1975. The circuit court’s determination that it has jurisdiction does not resolve all the issues presented to it for determination. Since we cannot presume the outcome of the appeal to the circuit court we have no jurisdiction to entertain an appeal at this time.

The contention of the appellants that under § 512.020 an appeal lies from any order granting a new trial is inapposite. That section is inapplicable to the facts here. That section authorizes an appeal from an order granting a new trial in a cause heard before the same court. That section is inapplicable to the unique facts of this case. Cf. Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 803 (Mo.banc 1954); Travagli-ante v. J. W. Wood Realty Company, 425 S.W.2d 208, 210-211 (Mo.1968).

The order of the circuit court was not an order granting a new trial but rather was an order granting an appeal from the probate court. Appellants’ attack is upon the jurisdiction of the trial court to entertain such an appeal. The proper procedure here to attack the jurisdiction of the circuit court is through the extraordinary writ of prohibition not through an appeal of an interlocutory order.

We therefore dismiss the appeal without prejudice to the appellants for the purpose of the filing of an extraordinary writ.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.

      . Specific authority to settle the claim was given by Miss Meier to her attorney. On April 3, 1975 she wrote to her attorney and stated: “After due discussion and conference with you, I hereby authorize you to settle any claim I may have against the Estate of Carl F. Seiser, deceased for the best amount obtainable, but not less than $3,500.00.”


author: FLANIGAN, Judge.

text:
    William McDOWELL, d/b/a McDowell Asphalt Paving Co., Plaintiff-Respondent, v. Marsh C. MILLER, Defendant-Appellant, and Gladys S. Miller, Defendant.
    No. 10353.
    Missouri Court of Appeals, Springfield District.
    Oct. 12, 1977.

      John Z. Williams, Williams & Smallwood, Rolla, for defendant-appellant.
    Dan L. Birdsong, Routh, Thomas, Birdsong & Hutton, Rolla, for plaintiff-respondent.
   FLANIGAN, Judge.

Plaintiff William McDowell, an individual doing business as McDowell Asphalt Paving Co., brought this action against Marsh C. Miller and Gladys S. Miller, husband and wife, for the balance allegedly due plaintiff for work and materials furnished in connection with the construction of a race track. The petition alleged that the defendants “have made some payments on the initial amount of $98,679.20” but refused to pay the balance due of $17,772.75. The petition sought judgment in the latter amount, together with interest. The trial court, sitting without á jury, awarded plaintiff judgment in the amount of $17,772.75 against defendant Marsh C. Miller, and the latter appeals. The trial court also found against plaintiff on his claim against Gladys S. Miller but the correctness of that ruling, not attacked by either side, is not involved on this appeal.

Defendant Marsh C. Miller is the president of Rolla Speedway, Inc., (“Speedway”), a Missouri corporation, which was formed in 1968. Defendant is also the owner of Miller’s Auto Salvage (“Salvage”), an unincorporated business.

Defendant’s first point is that the trial court erred “in rendering judgment for the plaintiff and against defendant on plaintiff’s theory of quantum meruit because the evidence was that [Speedway], and not defendant, received the benefit in value of the services rendered by plaintiff.”

Appellate review of this non jury action is governed by Rule 73.01 as construed in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). The principles stated there have received compliance but need not be restated.

Speedway, the corporation, on May 28, 1971, signed, as lessee, a lease of “a portion of fairgrounds” located south of Rolla, Missouri, “for the purpose of constructing and operating an automobile race track.” The lease had an initial term of 10 years commencing January 1,1971. The lease included the agreement by Speedway that it would build the track “at their (sic) own expense.” The lease was executed by the lessee in this manner:

ROLLA SPEEDWAY, INC., Lessee
/s/ M. C, Miller President
/s/ Gladys Miller Attest. Secretary

It bore the corporate acknowledgment, executed by defendant as Speedway’s president, and the corporate seal.

Sometime between December 1970 and March 1971 defendant had a conversation with plaintiff in which defendant said that he was going to build a race track and pave it. Plaintiff told defendant that plaintiff was thinking about buying an asphalt plant and wanted to know if plaintiff “could be sure of his job.” Defendant said, “You are going to do my job, Bill.” The following was elicited on direct examination of plaintiff:

“Q. Did he ever mention anything, except him requesting the work? Did he, himself, request that he wanted the work done?
“A. Best of my knowledge it was just Mr. Miller.”

In late May 1971 plaintiff, at the request of defendant, began the construction of the race track. Over 99 percent of the work was completed by July 1, 1971.

On June 10, 1971, plaintiff submitted to defendant two written “proposals,” respectively identified at the trial as Exhibit 1 and Exhibit 2. Both Exhibit 1 and Exhibit 2 were on printed forms bearing plaintiff’s business name. Each showed that the proposal was submitted to “M. C. Miller.” A typewritten portion of each stated that plaintiff would furnish “all labor and materials.” Exhibit 1 dealt with the laying of a 4-inch “base rock, water and roll on race track, priming, and laying 4-inch asphaltic concrete in two 2-inch lifts.” The typewritten portion of Exhibit 1 also stated, “$4.00 per ton for base on track, $20.00 per ton for asphaltic concrete on track.”

The lower portion of Exhibit 1 was entitled “Acceptance of Proposal.” It contained the following language: “The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.” On June 16,1971, defendant signed Exhibit 1, the signature being “M. C. Miller.”

Exhibit 2 differed from Exhibit 1 in that the former dealt with the “pit area” and a road. The depth of the “base rock, water and roll” was two inches and the depth of the “asphaltic concrete” was two inches. Exhibit 2 called for “$2.80 a ton for base rock” and “$15.20 a ton for asphaltic concrete.” Defendant signed Exhibit 2 in the same manner as he signed Exhibit 1.

Neither Exhibit 1 nor Exhibit 2 contained the corporate name of Speedway or made any reference to the corporation.

Plaintiffs’s evidence showed the amount due plaintiff for performing the work described in those two exhibits was $97,761.20. Payment on that indebtedness emanated from three sources:

1. Speedway. These payments were by 27 corporate checks, the first dated June 8, 1971, and the last dated June 10, 1974. Four checks were written in 1971 — 11 in 1972 — 8 in 1973 — and 4 in 1974.

2. Salvage. Beginning August 16, 1971, and ending on December 13,1973, plaintiff from time to time purchased automobile parts and supplies from Salvage but did not pay for them. Plaintiff treated the amount of each such purchase as a payment by defendant on defendant’s indebtedness to plaintiff. Defendant’s evidence showed that plaintiff “does not owe Salvage anything.” Salvage also made four payments (three in 1972 and one in 1973) by check, the smallest being $1,000 and the largest being $1,312.54.

3. Defendant. On June 20, 1971, defendant made a cash payment of $2,000 and a payment by check of $3,000.

Defendant testified that plaintiff’s workmanship was superior and that the job was done in a satisfactory manner. Defendant admitted that, prior to the trial, he had testified, apparently by deposition, that he had no disagreement “with the balance due.” Defendant admitted that he had been told by plaintiff that “the original full price for all the work done out there was $98,679.20” (apparently including the $918 item mentioned in footnote 2) and that he, defendant, had not “expressed any dissatisfaction” with that total until time of trial. Defendant testified that his disagreement, at time of trial, “with the balance due” was “the number of yardage charged, number of tons.” Defendant thought “there is not that amount of tons there” because he had had the track and pit surveyed and measured.

Plaintiff’s evidence showed the number of tons of base rock and asphaltic concrete used in the construction of the race track (Ex. 1) and the pit area and road (Ex. 2). These tonnage figures, applied to the rates respectively prescribed in the two exhibits, justify plaintiff’s computation of the total amount of the indebtedness ($97,761.20) pri- or to the crediting of payments.

The tonnages were based upon actual weighings conducted at plaintiff’s asphalt plant. The trial court rejected defendant’s evidence which sought to show that plaintiff’s tonnage figures were too high.

The first race on the track was held on July 4, 1971. Defendant testified that in 1974 “we were enjoined from operating the speedway.”

On December 6, 1971, Speedway, by its president, M. C. Miller, executed two promissory notes in favor of plaintiff. One was in the principal amount of $48,880.60, the balance then due plaintiff under Exhibit 1 for the race track. This note called for monthly payments of $1,000 together with interest at the rate of eight percent per annum payable monthly. The other note was in the amount of $5,880.60, the balance then due plaintiff under Exhibit 2 for the pit area and road. This note called for monthly principal and interest (eight percent) payments but the amount of the principal payment was left blank.

Plaintiff, who had a fourth grade education, testified that he did not know of the existence of Speedway as a corporation until Miller, for the corporation, signed the-notes in December, 1971.

Defendant’s first point makes the erroneous assumption that plaintiff’s petition is limited to the theory of quantum meruit. The fact is that the petition pleaded execution by defendant of Ex. 1 and Ex. 2. Both exhibits were attached to the petition, thereby becoming “a part thereof for all purposes.” Rule 55.12; see also Rule 55.22. The petition further pleaded that plaintiff performed the work and furnished the materials “described in [Ex. 1 and Ex. 2].” The tonnage rates prescribed by the two exhibits were also specifically pleaded and the petition stated that the defendant “by the [exhibits]” agreed to pay plaintiff those rates. The petition further stated that the total amount due for “the work as described in [Ex. 1 and Ex. 2]” was $98, 679.20 prior to the crediting of payments. Plaintiff’s evidence supported the allegations of the petition and included proof of the execution by the defendant of the two exhibits and full performance by the plaintiff of the work therein described.

Quantum meruit means “as much as he has deserved” and the burden is on the plaintiff to plead and prove that his charges were fair and reasonable. Williams v. Cass, 372 S.W.2d 156, 161[10, 11] (Mo. App.1963). “Bluntly put, the failure to prove the reasonable value of services rendered or materials furnished is fatal to recovery therefor in quantum meruit.” Williams, supra, at p. 161. The instant petition, although stating that the contractual rates were reasonable, was based, at least in part, upon express written contract. Moreover, “[i]f the petition contains aver-ments which, if proved, would entitle plaintiff to recover either on an express contract or on quantum meruit, and if it is impossible to say definitely whether plaintiff is counting on one or the other, he may be permitted to recover upon whichever of the two theories his evidence may warrant [authorities cited] and the allegations unnecessary to statement of the cause of action, on which recovery properly may be had, may be treated as surplusage and disregarded.” Emerson v. Treadway, 270 S.W.2d 614, 621[14] (Mo.App.1954).

The theme of defendant’s argument under his first point is that Speedway, and not defendant individually, received the benefit of plaintiff’s work; that plaintiff accepted checks from Speedway; and that plaintiff accepted two notes from Speedway “in substitution of his account.” Defendant argues, in effect, that the liability to plaintiff is that of Speedway and not that of defendant.

The record contains several facts tending to show, or showing, that plaintiff’s agreement was with defendant individually and not with Speedway. Ex. 1 and Ex. 2 were signed by defendant individually and made no mention of Speedway. Defendant requested plaintiff to do the work which defendant described as “my job.” Plaintiff testified that the work was requested by defendant and that defendant never “mentioned anything else” — “Best of my knowledge it was just Mr. Miller.” Defendant himself made payments, by cash and by check, some of the latter coming from Salvage of which defendant was the sole proprietor. Such payments both preceded and followed the execution of Speedway’s notes. Salvage also made payments in the form of automotive parts. Plaintiff testified he did not know of the existence of Speedway until the notes were signed, months after the work had been completed. Plaintiff’s initial bill to defendant (which produced an $18,000 payment by Speedway on June 8, 1971) was directed to M. C. Miller.

Of compelling significance on the issue of whether the liability was that of defendant or of Speedway is the manner in which Ex. 1 and Ex. 2 were signed.

“[0]ne who acts as agent for another in making a contract is liable individually if, at the time of making such contract, he fails to disclose his agency and the identity of his principal.” Lange v. Baker, 377 S.W.2d 5, 9[6] (Mo.App.1964). “If [an agent] would avoid personal liability [on the contract] the duty is upon him to disclose his principal, and not on the party with whom he deals to discover the principal.” Banjo v. Wacker, 251 S.W. 456, 458[2] (Mo. App.1923). See also A. A. Electric Machinery Co. v. Block, 193 S.W.2d 631, 636[9, 10] (Mo.App.1946); M. F. A. Cooperative Ass’n of Mansfield v. Murray, 365 S.W.2d 279, 285[5] (Mo.App.1963).
“One bringing an action upon a contract has the burden of showing that the other is a party to it. This initial burden is satisfied if the plaintiff proves that the defendant has made a promise, the form of which does not indicate that it was given as agent. The defendant then has the burden of going forward if he wishes to show that his promise was made only as an agent and that this should have been so understood.” Restatement (Second) of Agency § 320, p. 68, Comment b. Comment c, on the same page, says: “. . . [T]he fact that the wording of the contract is such that unless the agent is a party no one is tends to indicate that the agent is a party.”

Defendant adduced no evidence to the effect that he or anyone else had informed plaintiff of Speedway’s interest in the construction of the race track or even of Speedway’s corporate existence.

Defendant seeks refuge in evidence which, he argues, tends to show the agreement was that of Speedway and not his individually. He points to these facts: some payments were made by Speedway check; Speedway gave the two notes on December 6, 1971, to plaintiff; Speedway, on its federal income tax returns for the years 1971 through 1974, claimed depreciation of the race track as a deduction; Speedway, and not defendant, was the lessee of the land on which the race track was constructed; other materialmen had sent bills to Speedway and not to defendant.

There was no evidence that plaintiff had any knowledge of the contents of Speedway’s income tax returns. There was no evidence that plaintiff had any knowledge of the manner in which other materialmen framed their bills. There was no evidence that plaintiff had knowledge that Speedway, and not defendant, was the lessee, although there was evidence that plaintiff knew that the race track was under lease. Plaintiff did know that some payments were made by Speedway checks and did accept the two notes of Speedway. Such knowledge and such acceptance, on the instant record, are not fatal to his action against defendant.

“[T]he acceptance of a note of either a debtor or a third person does not constitute payment of a contemporaneous or pre-exist-ing debt, unless there is an express agreement to that effect between the parties to the transaction.” Connersville Casket Company v. Gist, 355 S.W.2d 374, 376[2] (Mo. App.1962). See also Security Trust Co. v. Sherwood Homes, Inc., 436 S.W.2d 776, 779[6] (Mo.App.1968); 60 Am.Jur.2d Payment § 62, p. 654.

Defendant argues that plaintiff accepted the two notes from Speedway “in substitution for his account.” A similar argument was made, unavailingly, in Relles v. Wines, 416 S.W.2d 19 (Mo.App.1967), where plaintiff lent some money to defendant who was president of Candeb Corporation. After the loan was made, and after defendant had made one payment to plaintiff, other payments were made by corporate checks and plaintiff accepted the note of the corporation for the unpaid balance. The corporate note was not issued until 10 months after the making of the loan.

In rejecting defendant’s argument that plaintiff’s acceptance of the corporate note had the effect of releasing the defendant as the original debtor the court said, at p. 22:

“This defense of novation must fail, for several reasons. It was an affirmative defense of release but was not pleaded as required by [Rule 55.08] . . . Nor was there clear and convincing evidence of plaintiff’s release of defendant as his original debtor and his acceptance of Candeb as his new creditor [sic], all that being required for a novation. Negbauer v. Fogle Construction Co., Mo.App., 53 S.W.2d 346[8, 9]. If further reason be needed for denying the defense of novation, we point to its utter inconsistency. This, because defendant contended that from the inception of the loan it was Candeb, not he, who promised to pay the plaintiff.”

In the instant case defendant did not plead the defense of novation. Par from offering any “clear and convincing” evidence of plaintiff’s release of defendant as his original debtor and plaintiff’s acceptance of Speedway as his new debtor, defendant offered no evidence at all to that effect. Defendant’s answer denied that he, individually, had initially contracted for the work. The same “utter inconsistency” which the court found in Relies is present here.

It should be pointed out that defendant’s theory of “substitution,” a theory belatedly advanced and at war with that presented to the trial court, is also inconsistent with defendant’s conduct in making payments himself, at least through Salvage, after the giving of the Speedway notes.

“The controlling element in determining whether a novation has been accomplished is the intention of the parties. ... A novation is never presumed. . . . The burden of proof rests upon him who asserts there has been a novation.” W. Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276, 279 (Mo.App.1968).

The acceptance by plaintiff of corporate checks in partial payment of the indebtedness did not exonerate defendant from his individual liability, A. A. Electric Machinery Co. v. Block, 193 S.W.2d 631, 636[11, 12] (Mo.App.1946), Jahncke Service v. Heaslip, 76 So.2d 463, 465[1] (La.App. 1954), Matsko v. Dally, 49 Wash. 370, 301 P.2d 1074, 1077[7, 8] (1956), 66 C.J.S. Novation § 18e, p. 703, although payments made by corporate checks had the effect of discharging pro tanto defendant’s original debt. 70 C.J.S. Payment § 29, p. 240.

The trial court was justified in finding that the indebtedness to plaintiff for labor and material furnished in connection with the construction of the race track was that of defendant individually. Under his first point defendant cites cases which, he argues, would support a finding of liability on the part of Speedway to plaintiff. Speedway is not a party and the issue of its liability need not be explored. The evidence established defendant’s liability. Defendant’s first point has no merit.

Defendant’s second point is stated as follows: “The trial court erred in rendering judgment for plaintiff and against defendant on plaintiff’s theory of quantum meruit in the amount of $17,772.75 because under plaintiff’s theory he could collect only the contract price and thus all payment of defendant for interest should have been applied to reduce the balance allegedly due.”

This point proceeds on two erroneous assumptions. First, as discussed under point one, the petition was based upon express written contract and not upon quantum meruit. Second, defendant mistakenly assumes that interest is not recoverable in an action based on quantum meruit. To the effect that interest is recoverable in such actions see Mid-West Engineering & Const. Co. v. Campagna, 421 S.W.2d 229, 234[6, 7] (Mo.1967); Burger v. Wood, 446 S.W.2d 436, 443[10] (Mo.App.1969); Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978[12], 979[15, 19] (1945).

The two notes of Speedway were interest-bearing and Speedway’s payments on the notes included a portion for principal and a portion for interest. Plaintiff’s petition gave defendant full credit for that portion of the note payments allocated against the principal of each note. Plaintiff did not give defendant credit, as against the principal of the original indebtedness, for the interest portion of the note payments. This, says defendant, was improper.

Defendant’s answer did not plead payment, although payment is an affirmative defense. Rule 55.08. Indeed, defendant’s answer denied those portions of the petition which pleaded that payments had been made by defendant. It will be recalled that defendant individually, and through Salvage, made payments in addition to the payments made by Speedway.

With regard to the Speedway notes, plaintiff testified, without objection, as follows:

“Q. And these were taken so that you could draw interest on the amount that was owed to you?
“A. That we agreed on, yes, sir.”

According to defendant's brief, in December 1971, when the two Speedway notes were executed “the balance due for the work of plaintiff amounted to $54,761.20.” The face amounts of the two notes equalled that figure.

One of defendant’s exhibits, Ex. SS, was entitled “record of payments made by M. C. Miller.” Ex. SS consists of three pages, the first two pages dealing with the payments on the larger note and the third page dealing with payments on the smaller note. According to the exhibit, interest was paid monthly, with few exceptions, on the larger note, from January 1, 1972, to December 1974. With respect to the smaller note, the exhibit also shows payments on principal and payments of interest. Ex. SS also shows that the balance due on the larger note, as of December 6, 1974, was $15,-880.60. It shows the balance due on the smaller note was $1,892.15. After each balance appear the words “plus interest.” The total of the two balances is $17,772.75, which was the amount sought by the petition and was also the amount of the judgment.

It should be observed that Ex. SS describes all payments after January 1, 1972, as being “made by M. C. Miller,” although most of them were in fact made by the corporate check of Speedway. Some of the checks of Speedway and Salvage, introduced into evidence by defendant, bore such legends as “interest,” “interest on note number 2,” and “March interest.”

Defendant has cited no authority in support of his contention that the interest portion of the note payments should have been credited against the principal of the original indebtedness.

Section 400.3-802 reads, in part:

“(1) Unless otherwise agreed where an instrument is taken for an underlying obligation . . .(b). . . the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored, action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.”

The Speedway notes were instruments. § 400.3-102(1)(e); § 400.3-104.

Section 400.3-802(l)(b) is the counterpart of Uniform Commercial Code § 3-802(l)(b) which, according to 60 Am.Jur.2d Payment § 62, p. 654, applies to the taking of a third person’s negotiable note for an existing debt.

It should be observed that § 400.3-802 opens with the language: “Unless otherwise agreed.” The evidence which has been set forth in connection with this discussion of defendant’s second point, including plaintiff’s testimony concerning the reason for the taking of the note and defendant’s treatment of the payments as shown by Ex. SS, justified the trial court in finding that the agreement of the parties was that defendant was not to be given credit, as against the principal of the original indebtedness, for the interest portion of the note payments. Whether § 400.3-802 (ignoring the language “unless otherwise agreed”) would lead to the same conclusion need not be considered.

Defendant’s second point has no merit.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969 V.A.M.S.

      . In 1972 plaintiff performed additional work amounting to $918. It is not clear whether that item was included in plaintiff’s computations of defendant’s total indebtedness prior to crediting payments. One of plaintiffs witnesses testified that the item “has all been paid.” Defendant’s brief attaches no importance to the $918 item so this court does not consider its significance, if any.

      . Defendant’s evidence showed an additional item was purchased by plaintiff from Salvage in 1975. Defendant was given credit for the amount of that purchase.

      . Although defendant’s evidence showed that the four payments were “from Salvage,” only three of the checks bore the name “Miller’s Auto Salvage.” The other bore the name “Miller Auto Sales,” which has the same address and telephone number as Salvage. The record contains no information concerning Miller Auto Sales.

      . See Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976) where the judgment of the trial court, permanently enjoining the operation of the race track, was affirmed.

      . Although the petition sought pre-judgment interest on the amount sued for, commencing from the date of its filing, the trial court made no such award. On this appeal by defendant, plaintiff does not claim that the judgment was inadequate.

      . Does this combination of three simple words mean what it plainly says? With its lust for lucidity, the Uniform Commercial Code commands the reader to make additional stops at § 400.1-102(3) and (4) and § 400.1-201(3). The latter statute has, helpfully, three internal citations. Such circumlocution must inspire the envy of the drafters of the I.R.C. Happily the question seems to receive an affirmative answer — at least usually.

      .North Carolina, GS § 25-3-802, added the following at the end of subsection (l)(b) of U.C.C. § 3-802: “to the extent of his discharge on the instrument.” Query: Was that a significant amendment or merely a clarification?


author: HARBISON, Justice.

text:
    Jayne Ann WOODS, Commissioner of Revenue, Appellant-Defendant, v. TRW, INC., Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 31, 1977.
    Jim G. Creecy, Asst. Atty. Gen., Nashville, for appellant-defendant; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
    Michel G. Kaplan, Nashville, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

The question in this case is whether certain amendments to the delinquent tax statutes should be applied retroactively. These amendments were adopted in 1973 and 1974. At issue is their application to a 1971 excise and franchise tax return. One of the amendments shortened the period for instituting collection proceedings, and the Chancellor held that the assessment involved here was barred thereunder.

The facts of the case were stipulated. On February 25, 1972 the taxpayer paid its estimated franchise and excise taxes for the calendar year 1971. It obtained an extension for filing its final return and on September 1, 1972 filed the return together with additional estimated taxes.

At that time T.C.A. § 67-1323 required the Department of Revenue to institute proceedings to collect taxes “within six (6) years from the first of January of the year for which such taxes accrued.” Under this provision, the Department of Revenue had until January 1, 1977 to commence such proceedings.

Beginning on September 16, 1974 a series of letters passed between the taxpayer and the Department, in which the latter requested additional information in order to make a final audit. There was a substantial delay between January 1975 and October 1975 during which the taxpayer failed to supply the requested information or even to acknowledge receipt of the Department’s letters. Finally, on January 23, 1976, the taxpayer did file the information, and the Department, on March 19, 1976, made an assessment for additional 1971 taxes. The taxpayer declined to pay, contending that a 1973 amendment to T.C.A. § 67-1323 had shortened the period of limitations to three years, and that the assessment was barred by operation of the new statute. The Department refused to acquiesce in that position. The taxpayer thereafter paid the additional taxes under protest and timely filed the present suit to recover them, raising no objection to the assessment other than the statute of limitations.

The Chancellor sustained the contention of the taxpayer and allowed recovery. He held that the legislature had authority to make a statute of limitations retroactive to existing cases, provided a reasonable period of time remained for the filing of an action, citing such cases as Bradley v. LaPenna, 490 S.W.2d 500 (Tenn.1973).

Both the taxpayer and the Chancellor have viewed the issue as one of legislative power or authority to make a statute retroactive. It seems to us, however, that the issue is primarily one of legislative intent. An examination of Chapter 368 of the Public Acts of 1973, which contained the basic amendment in question, persuades us that the act was intended to operate prospectively, rather than retroactively.

This chapter of the 1973 Public Acts amended several statutes dealing with administration of the Department of Revenue, and also the gift, inheritance and estate tax laws. It was by no means confined to an amendment of the period of limitations. In the first section, new procedures were authorized, providing for formal hearings before the Commissioner in certain types of cases. The second section of the chapter prescribed new professional qualifications for internal auditors. The fourth section contained a number of penal provisions, creating new felonies and misdemeanors for interference with revenue officials and the obstruction of tax collections, and prescribing punishment therefor. In the third section are found the provisions at issue here, changing the period of time during which assessment and collection proceedings must be commenced. Insofar as pertinent here, this amendment provided that levies and other collection procedures must be commenced within three years from December 31 of the year in which a tax became due and payable.

If the 1973 amendment applied to the taxpayer’s 1971 return, the Department would have had to make its final assessment and institute collection proceedings no later than December 31, 1975, since the taxes were due in 1972. Hence the assessment made in 1976 would have been barred.

By Chapter 484 of the Public Acts of 1974, T.C.A. § 67-1323 was further amended, to provide a three-year limitation after the year in which the tax return was filed. This amendment, if applicable to the present case, would also have required institution of collection proceedings by December 31, 1975.

In 1974 the Attorney General gave an opinion to the Department of Revenue that the 1973 amendment to the limitation period was prospective and applied only to taxes accruing in 1973 and in subsequent years. We are of the opinion that the conclusion of the Attorney General was correct, and that the legislature did not intend for the amendment to apply to tax years prior to the date of its enactment.

The taxpayer itself concedes that the statute would have to be given some prospective operation, because collection proceedings for 1968 taxes would have been barred before the effective date of the 1973 amendment. The taxpayer contends, however, that for all years after 1968 the Department had a reasonable time after the effective date of the amendment in which to process returns and commence collection proceedings.

We do not question the authorities cited by the Chancellor and by the taxpayer to the effect that the legislature has the general power to make many kinds of statutes, including limitations for collecting taxes, retroactive to prior years, if it clearly expresses such an intention. Ordinarily, however, statutes enacted by the General Assembly are given prospective operation and will be so construed unless a clear intention to the contrary is found in their provisions. See Cates v. T.I.M.E., D.C., Inc., 513 S.W.2d 508, 510 (Tenn.1974); Jennings v. Jennings, 165 Tenn. 295, 303, 54 S.W.2d 961 (1932); Dugger v. Insurance Co., 95 Tenn. 245, 249, 32 S.W. 5 (1895).

In the present case, there can be no question but that those portions of Chapter 368 of the Public Acts of 1973 creating new criminal offenses and providing new criminal sanctions were intended to be prospective. To give these a retroactive application and to designate prior activities as criminal offenses would convert these provisions into ex post facto criminal laws, making them unconstitutional. The first section of the 1973 Public Act created some new administrative procedures. In the second section of the Chapter, new and different qualifications were provided for the position of an internal auditor. Set between the second and fourth sections, both of which seem clearly to be prospective in operation, are the provisions of section three, changing the limitation period at issue here and amending the lien and enforcement periods in a number of specific tax statutes.

It is, of course, entirely possible for some portions of a public act to be prospective in operation and others retroactive. We are of the opinion, however, that the intention of the General Assembly to achieve that result should be clearly and unequivocally expressed. We find no such expression here. Viewing Chapter 368 of the Public Acts of 1973 as a whole, we are persuaded that it was intended to have prospective operation, as concluded by the Attorney General. As pointed out above, certain of its provisions could hardly be construed otherwise within constitutional limits.

The judgment of the Chancellor is reversed and the suit is dismissed at the cost of appellee.

COOPER, C. J., and PONES, HENRY and BROCK, JJ., concur.


text:
    TENNESSEE STATE BOARD OF EDUCATION et al., Petitioners-Defendants, v. Anthony D. COBB, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 31, 1977.

      Richard Lodge, Robert B. Littleton, Asst. Attys. Gen., Nashville, for petitioners-defendants; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Walter W. Bussart, Lewisburg, for respondent-plaintiff.
   OPINION

HARBISON, Justice.

In this suit the plaintiff alleged that he had achieved tenure while employed by the State Board of Education as Assistant Superintendent of the Tennessee School for the Blind in Davidson County. He also contended that he had been improperly discharged, relying principally upon alleged violations of regulations issued by the State Board and of the teachers’ tenure statutes, T.C.A. §§ 49-1401 et seq. Suit was instituted by the filing of a petition in the Chancery Court with service of a copy thereof upon the members of the Board.

This method of service is authorized by T.C.A. § 49-1417 for judicial review under the general teacher tenure statutes. By section 0520-2-2-.13 of the rules of the Tennessee Department of Education, adopted by the State Board pursuant to T.C.A. § 49-1423, this method of judicial review is expressly made applicable to teachers in institutions under the jurisdiction of the Board.

Counsel for the State throughout the litigation have contended that this method of service is unauthorized and is in conflict with Rule 4 of the Tennessee Rules of Civil Procedure. Apparently no summons ever issued from the Chancery Court for any of the defendants, the suit simply being instituted by the filing of a petition and service of copies by registered mail.

Ordinarily, of course, a summons is necessary for personal service of process under Rule 4. Rule 3 provides that all civil actions are commenced by the filing of a complaint. Under Rule 4.01, upon such filing, the clerk is directed to issue “the required summons” and to cause it, together with copies of the complaint and summons, to be delivered to any person authorized to serve process.

Summonses are not “required”, however, for the prosecution of all actions. Rule 4 expressly contemplates that there may be other methods of accomplishing service of process, in addition to personal service of a summons. Rule 4.05 authorizes constructive service pursuant to statute, and certain subsections of Rule 4.04 permit service as authorized under particular statutes. See Rule 4.04(5) and (7). Accordingly, we are of the opinion that whenever a special statute dealing with a particular type of judicial action, such as review of a Board of Education under the Teacher Tenure Law, contains specific provisions for process and service, that method, in lieu of the general provisions of Rule 4, is permissible and may be followed. We are particularly persuaded to this view in the present case since the State Board itself, by its regulations, expressly authorized judicial review under the provisions of T.C.A. § 49-1417.

We are therefore of the opinion that both the Chancellor and the Court of Appeals were correct in holding that process and service in the present case were sufficient. We do not agree with either of those courts in suggesting that there was a waiver of the issue by the State Board, because the question was carefully preserved by a motion to dismiss, which was overruled, and by later prayer for an interlocutory appeal. Had service not been authorized by the statutes and regulations in the manner above described, we are of the opinion that the question was properly preserved for appellate review and not waived by the subsequent filing of an answer and participation in the trial. From a practical standpoint, a defendant who has properly raised the question of the sufficiency of process and its service has no alternative, after being overruled, except to answer and defend or suffer judgment by default. Since the process and service employed in the present case were proper, however, we find no reversible error in the action of the courts below. The assignments dealing with the sufficiency of process and service are overruled.

This case is before the appellate courts on the technical record only, no bill of exceptions having been filed. After its preliminary motion challenging process was overruled, the State Board filed an answer to the merits, alleging that the position of plaintiff had been abolished. The case was tried on oral testimony. Thereafter the Chancellor filed a memorandum opinion, holding that the plaintiff had not achieved tenure under the State Board regulations and finding, in effect, that the position which the plaintiff held had been abolished by the Board. He found, however, that such abolition did not deprive the plaintiff of a right to notice prior to April 15, 1975 “in accordance with T.C.A. § 49-1306.”

The latter statute is a part of the continuing contract law pertaining to public school teachers. It requires notice of non-renewal of employment by April 15 of each year. The Chancellor held that it reflects a legislative intent to give protection separate and apart from the provisions of the teacher tenure laws contained in Chapter 14 of Title 49. He made no reference to the abolition of position provisions of the latter chapter, T.C.A. § 49-1410.

The continuing contract statute has not been incorporated in its entirety into the rules and regulations adopted by the State Board. Those rules which have been cited to us make reference only to the Teacher Tenure Act, T.C.A. §§ 49-1401 et seq. There is no reference to Chapter 13 of Title 49 in these regulations, insofar as we have been able to ascertain, nor to the continuing contract law which deals with teachers “in service and under control of the public elementary and high schools of Tennessee.

Plaintiff was not such a teacher. He was employed by the State Board of Education in a school under its jurisdiction, and special statutory provisions authorize the State Board to promulgate rules and regulations regarding the employment of such teachers. T.C.A. §§ 49-1423 et seq.

The Court of Appeals affirmed the action of the Chancellor, holding that the plaintiff had rights under the continuing contract law, which had not been complied with, in that he had not been notified of the abolition of his position prior to April 15, 1975. The Court concluded, as did the Chancellor, that while plaintiff had not achieved tenure, he was entitled to such notice and that despite the subsequent abolition of his position, he was entitled to his salary for the ensuing school year. Damages were fixed in the amount of that salary and incidental moving expenses, less the amount earned by the plaintiff in other employment.

The Court of Appeals held that it could not take judicial notice of the rules and regulations of the State Board of Education, which had been cited to it and upon which the Board relies in this case. If the Chancellor considered these regulations, it is not apparent from his opinion, which contains only a single general reference to them on the subject of tenure.

It was this issue, primarily, which prompted this Court to grant certiorari, because we are of the opinion that rules and regulations promulgated in this state pursuant to provisions of the Tennessee Administrative Procedures Act, as the subject rules were, are a proper subject of judicial notice. Since the granting of certiorari in the present case, the Court has expressly so held in the case of Acuff v. Commissioner of Tennessee Department of Labor, 554 S.W.2d 627, 631 (Tenn.1977).

The rules and regulations pertinent here are §§ 0520-2-2-.09 and .10. The first of these, entitled “Dismissal and Suspension— Grounds” provides, among other things:

“A teacher’s or administrative officer’s services may be terminated at any time in case his office or position shall be discontinued.”

There is no such provision in Chapter 13 of Title 49, dealing with the continuing contract provisions for public school teachers. There is contained in the general Teacher Tenure Act, T.C.A. § 49-1410, a somewhat similar provision, providing that a Board of Education shall be empowered to dismiss even tenured teachers when such action becomes necessary “to reduce the number of teaching positions in the system because of a decrease in enrollment or for other good reasons . . . .” In such cases notice and priority of re-employment are provided. The State Board regulations adopt the definition of “abolition of position” found in T.C.A. § 49-1401(13), but neither the notice nor the rehiring provisions of T.C.A. § 49-1410. See Regulations § 0520-2-2.02(10).

Apparently T.C.A. § 49-1410, dealing with abolition of positions, has never been the subject of any reported case in this state. It was not involved in the case of Snell v. Brothers, 527 S.W.2d 114 (Tenn. 1975), in which the Court held that where a non-tenured teacher was not given notice under the continuing contract law, he was entitled to additional salary for one year. There was no issue of abolition of the position in that case. While a position had been abolished in Mitchell v. Garrett, 510 S.W.2d 894 (Tenn.1974), only the transfer provisions of the tenure statutes were involved.

There is a provision in the State Board regulations, § 0520-2-2-.10, entitling a non-tenured teacher who is not to be retained for an ensuing school year to receive written notice of non-renewal by April 15 of the current school year. Although not identical, this is somewhat similar to the continuing contract provision for public school teachers above referred to. However it immediately follows and, in our opinion, must be read in connection with the regulation dealing with abolition of office, which clearly provides that termination may occur “at any time” when a position is discontinued.

We do not believe that these provisions are necessarily in conflict, but the Chancellor made no reference to them, and the Court of Appeals held that the regulations were not properly before it for consideration.

In this regard we are of the opinion that the Court of Appeals was in error, and that judicial notice should have been taken of the official regulations of the Department. As stated, we do not have a bill of exceptions, and we cannot tell whether or not the regulations were considered by the Chancellor. He cited no specific regulation and relied only upon the general continuing contract statutes, which are not applicable. We have therefore concluded that in fairness to all parties the judgment of the courts below should be set aside, and this case should be and it hereby is remanded to the Chancery Court for a new trial. Costs incident to the appeal will be taxed equally to the parties; all costs in the Chancery Court will abide the results there.

COOPER, C. J., and FONES, HENRY and BROCK, JJ., concur.

      . By definition, under the regulations and the statute, “abolition of position” means “A regular bona fide elimination of a position for sufficient, just and nondiscriminatory reasons.” T.C.A. § 49-1401(13).