author: SMITH, Judge.

text:
    William COX, Plaintiff-Appellant, v. T. D. McNEAL et al., Defendants-Respondents.
    No. 39738.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied April 10, 1979.

      C. John Pleban, London, Greenberg & Fleming, St. Louis, for plaintiff-appellant.
    David 0. Danis, St. Louis, for defendants-respondents.
   SMITH, Judge.

Plaintiff police officer appeals his dismissal by the Board of Police Commissioners following a hearing. The Circuit Court affirmed the action of the Board.

Rather than set forth a lengthy recitation of the evidence, we incorporate in haec ver-ba the Decision of the Board including its Statement, Findings of Fact, and Conclusions of Law and omitting its Order.

“DECISION STATEMENT

This matter was brought before the Board of Police Commissioners for a hearing on Charges and Specifications prepared and filed by the office of the Inspector of Police, Bureau of Inspections, charges dated originally July 27, 1976 and amended August 17, 1976. The matter first came for hearing on October 4, 1976, was continued and resumed on November 15,16,17 and 19, 1976. A total of thirty-nine (39) witnesses were called and twenty-five (25) exhibits were admitted into evidence, including plaintiff’s exhibits one through fourteen, sixteen, seventeen, twenty, twenty-three and twenty-four, and defendant’s exhibits A through D.

Both parties received reasonable notice of the issues involved and the time and the place for the hearing. Both parties were permitted timely process for the production of witnesses and documents. The parties were each represented by legal counsel. Both parties presented oral evidence. At the conclusion of the evidence in the matter, it was taken under submission for consideration by Hearing Officer Anthony Ses-tric. Subsequently, the hearing officer submitted recommended Findings of Fact and Recommendation to this Board. Thereafter, this recommendation, the charges and specifications and the full transcript of the proceedings were reviewed and duly considered by all members of the Board of Police Commissioners: Colonel Theodore McNeal, President; Colonel Edward J. Walsh, Jr.; Colonel George T. Mchan, Jr.; and Colonel Salees Seddon. After determination of the guilt, the Board requested, received, reviewed and considered defendant’s past record with the Department.

Upon due deliberation and consideration of the charges and the plea thereof and the proof adduced, the Board in reviewing the record as a whole now makes its final decision together with the Findings of Fact, Conclusions of Law and Order as exhibited.

FINDINGS OF FACT

1. Officer William Cox became a member of the Metropolitan St. Louis Police Department on February 3, 1958. He was assigned to the Homicide Division from October 9, 1969 to December 16, 1974.

2. Officer Cox has personally known Eugene ‘Papa’ Kirk since about 1959 and frequently, over the years, visited with him at his place of business and in his home.

3. That the Board of Police Commissioners is the governing body and chief executive body of the Police Department of the City of St. Louis, and, as such, has published and promulgated a ‘Police Manual' which establishes rules of conduct for all officers of the St. Louis Police Department.

4. Rule 7.010(c) of the Police Manual, published and promulgated by the Board of Police Commissioners of the City of St. Louis states as follows:

‘Any member of the Department shall be subject to disciplinary action for the violation of the rules of conduct set forth by the Department as herein, for the violation of other rules and regulations set out in the manual, for the violations of special orders, and for violation of the orders of a superior officer.
‘Every member of the Department shall, at all times, maintain reasonable standards of courtesy in their relations with the public and with other members of the Department and shall conduct themselves in such a manner that no discredit will be brought upon the Department in general or themselves in particular.
‘Acts contrary to good conduct shall include, but not be limited to, the following:
‘(c) Any conduct unbecoming to a member of the Department.
‘(g) Borrowing, obtaining, receiving, soliciting or accepting any money, securities, properties, or other valuable things or any credit or guarantee of credit either directly or indirectly, from any tavern keeper or proprietor, any professional bondsmen, any gambler, any person liable to arrest or complaint, any person in official capacity or free on bail or any relatives or employees of such person.’

5. Section 9.001 of the Police Manual, published and promulgated by the Board of Police Commissioners of the Gity of St. Louis reads as follows:

In addition to the specific duties of each individual rank and position, as set forth elsewhere in this manual, the following general duty provisions are applicable to all members of the Department and must be observed:

‘(g) No police information, of any nature, shall be disclosed unless it is proper and necessary under the circumstances;
‘(i) Interferring with the course of justice in any fashion whatsoever is forbidden;
‘(j) No advice or information shall be given to any arrested person, or to others for him, in relation to the defense or prosecution against him;
‘(r) Neglect of duty, improper performance of duty, sleeping or loafing while on duty, is subject to disciplinary action.’

6. That it was generally known throughout the office of the Circuit Attorney for the City of St. Louis that Eugene ‘Papa’ Kirk was a narcotics King pin, and that, at least prior to July 1, 1974, William Cox possessed a personal belief that Eugene ‘Papa’ Kirk was in fact involved in the narcotics trade in the City of St. Louis.

7. That Eugene ‘Papa’ Kirk, with others, was, in fact, heavily involved in major drug traffic within the City of St. Louis.

8. That at no time after 1968 did William Cox indicate to any member of the Office of the Circuit Attorney or to any member of the St. Louis Metropolitan Police Department that William Cox was working with Eugene ‘Papa’ Kirk as a confidential source of information.

9. That on June 19, 1974, Alfred Scott was killed in the City of St. Louis.

10. That amongst the Police Officers assigned to the original investigation on June 19, 1974 was Officer William Cox, and that on that date, Officer Cox, with other officers, interviewed a number of witnesses at the scene of the killing and prepared a written report of their investigation.

11. That at least one witness identified one of the persons responsible for the killing as an individual known as ‘Buttons’ but that information did not appear in the Police Report prepared that night of June 19, 1974.

12. That on June 20, 1974 information concerning ‘Buttons’ became common knowledge amongst several of the Police Officers assigned to the Homicide Division of the St. Louis Metropolitan Police Department, and that information was added to the investigation report regarding the killing of Alfred Scott, by police officers other than William Cox.

13. That subsequent to June 20, 1974, William Cox telephoned Eugene ‘Papa’ Kirk and arranged for the arrest of ‘Buttons’, who was in fact the son of Eugene Kirk.

14. That after, William Cox and one other Police Officer went to a prearranged location where the voluntary surrender of ‘Buttons’ Kirk was made to Officer William Cox.

15. That on or about August 26, 1974 Marvin Kendrick was murdered in the City of St. Louis, Missouri.

16. That sometime shortly thereafter, William Cox was assigned to investigate the killing of Marvin Kendrick.

17. That during the course of the investigation of the killing of Marvin Kendrick, Officer William Cox spoke with Eugene ‘Papa’ Kirk about the investigation, concerning Odell Herron, who was a principal suspect in the killing; gave information to Eugene ‘Papa’ Kirk as to the status of the investigation; and suggested a means by which Eugene ‘Papa’ Kirk could insure that information favorable to Odell Herron was presented to the Office of the Circuit Attorney of the City of St. Louis.

18. That William Cox presented Geraldine Harris to the Office of the Assistant Circuit Attorney, where Geraldine Harris gave a statement in support of Odell Her-ron.

19. That during the course of the investigation and presentment of the evidence to the Grand Jury in the City of St. Louis, William Cox represented to Eugene ‘Papa’ Kirk that unless additional witnesses could be found, a ‘no true bill’ would be returned against Odell Herron.

20. That William Cox represented to members of the Office of the Circuit Attorney of the City of St. Louis that certain other witnesses favorable to the prosecution of Odell Herron could not be located.

21. That during the course of the telephone conversations, William Cox advised Eugene ‘Papa’ Kirk that William Cox would be able to get a no true bill on the murder warrants against Odell Herron.

22. That during the course of the investigation of the murder charge against Odell Herron, William Cox failed to produce witnesses favorable to the prosecution, which witnesses were in fact available for presentment.

23. That the ultimate result of the Grand Jury investigation of the murder charge against Odell Herron, during that period of time when William Cox was involved, was a no true bill, and Odell Herron was discharged.

24. That in the Fall of 1975, Odell Her-ron was rearrested for the murder of Marvin Kendrick, that police officers, other than William Cox, reinvestigated the circumstances, interviewed all the witnesses, presented all the witnesses before the Grand Jury; that the Grand Jury did in fact return an indictment; and that these charges are still pending before the Circuit Court of the City of St. Louis.

25. That the only reasonable conclusion as to William Cox’s intentions to the Marvin Kendricks murder was that William Cox was in fact attempting to influence the investigation of the killing of Marvin Kendrick as a personal favor and at the personal request of Eugene ‘Papa’ Kirk.

26. That prior to October 1, 1974, William Cox, on numerous occasions, visited with Eugene ‘Papa’ Kirk in his home and in business establishment, and communicated with Eugene Kirk by telephone, both at his home and at his place of business.

27. That during the month of October, 1974, William Cox spoke with L. R. Stafford, a Probation and Parole Officer for the State of Missouri, who was then in charge of supervising the parole and probation of ‘Buttons’ Kirk, son of Eugene ‘Papa’ Kirk.

28. That during the month of October, 1974, L. R. Stafford indicated to William Cox that it was the intention of L. R. Stafford to begin proceeding to revoke the parole and probation of ‘Buttons Kirk, and that William Cox communicated this information to Eugene ‘Papa’ Kirk, prior to L. R. Stafford having made actual application to the Circuit Court of the City of St. Louis.

29. That William Cox advised Eugene ‘Papa’ Kirk that William Cox believed that he could get the parole and probation revocation stopped for the benefit of ‘Buttons’ Kirk.

30. That prior to October 1, 1974, Eugene ‘Papa’ Kirk had offered to William Cox ‘female companshipship’, the purpose of which was sexual intercourse, and that Eugene ‘Papa’ Kirk provided both the ‘female’ and the premises for William Cox to take advantage of the ‘female companionship’, and that William Cox did in fact go to the premises provided by Eugene ‘Papa’ Kirk with the female.

31. That during the month of October, 1974, the Federal District Court for the Eastern District of Missouri authorized a ‘wire tap’ on certain telephones assigned to Eugene ‘Papa’ Kirk and did during the month of October, 1974, intercept telephonic conversations between Eugene ‘Papa’ Kirk and William Cox.

32. That during the month of October, 1974, as evidenced by the telephone interceptions, William Cox requested the assistance of Eugene ‘Papa’ Kirk in securing a wedding anniversary gift for the wife of William Cox.

33. That on or about October 20, 1974, William Cox and Raymond Bruntrager, then an Assistant Circuit Attorney for the City of St. Louis, had a brief conversation about the large number of murders which appear to have some association with drug traffic in the City of St. Louis, and William Cox advised Raymond Bruntrager that he would ‘go out on the streets’ to determine if any information would be available concerning such an association.

34. That no information was subsequently given by William Cox to Raymond Bruntrager or any other member of the staff of the Office of the Circuit Attorney for the City of St. Louis concerning any association between any homicides and the drug traffic in St. Louis.

35. No evidence was presented to indicate in any way whatsoever that any member of the Police Department of the City of St. Louis, except William Cox, had intentionally given any current police information to any individual outside the Police Department itself.

36. That it is generally believed by police officers that it is bad police practice to indicate that the police officer will do what he can to thwart an investigation, and to give that impression to any suspect or ‘informant’.

37. James E. Schultz, a retired St. Louis Police Department Officer, is the only officer to testify that Cox used Kirk as a source of information to solve a crime, but the last time Schultz had any such information as to Cox’s use of Kirk was 1967.

38. That on April 4, 1975, William Cox, in a District Police Station of the City of St. Louis, in the presence of and in front of the other police officers in the Sixth District Station, yelled, ‘Chancellor, you cock sucker you’ and that phrase was shouted at John Chancellor, then as Assistant Circuit Attorney for the City of St. Louis.

39. That immediately thereafter, William Cox verbally accosted John Chancellor, outside the presence of other police officers and accused John Chancellor of lying to law enforcement officials.

CONCLUSIONS OF LAW

1. At all times mentioned in the Findings of Fact, the Defendant lawfully occupied the rank of police officer of the St. Louis Metropolitan Police Department and as result was within the lawful discipline and government of the Department.

2. The Board of Police Commissioners of the City of St. Louis is possessed of the lawful power to make such rules and regulations consistent with law, for the government and discipline of the St. Louis Metropolitan Police Department; and, included within such right is the right to publish rules and regulations, including Rule 7.010 and all sub-parts, and rule 9.001 and all sub-parts, and to discipline officers upon competent proof that the officer violated said rules or orders.

3. As a result of the defendant’s aforesaid status and the aforesaid power of the Board, the Board is possessed of the right to hear and determine the truth of the charges made against the defendant and to render a decision based upon a hearing or trial.

4. The Board has the right to affect the status of the defendant by dropping him from the rolls of the St. Louis Metropolitan Police Department, by reason of the legal authority conferred upon the Board of Police Commissioners of the City of St. Louis.

5. The Board was entitled to issue timely notice of the hearing, the (sic) conduct a hearing, and take and hear any and all evidence by the parties and to utilize all competent and material evidence in rendering its decision.

6. The Board, as an administrative agency of the Government, has the right to apply its reasonable judgment and discretion, based upon its experience in the government and administration of the Department, to the evidence adduced at the trial of the defendant herein, and in determining the proper disposition of the status of the defendant.

7. The defendant was guilty of Charges I, III, IV and VI, of violating Rule 7.010(c) and (g) and Rule 9.001(g), (i), (j) and (r), inclusive, as set out in Charges I, III, IV and VI, and their specifications.

8. That punishment by dropping the defendant from the rolls of the Metropolitan St. Louis Police Department is a reasonable exercise of the Board’s authority considering the officer’s conduct in this case and his prior record.”

Plaintiff raises six points on appeal, four of which may be dealt with summarily. We conclude from our review of the extensive record in this case that the findings of the Board were fully supported by substantial evidence. Plaintiff’s main contention that the findings were unsupported is his contention that no witness identified the voice on the tape recordings as that of Eugene Kirk, Sr. Even if this were true it overlooks the stipulation by plaintiff’s counsel at a pre-hearing conference, held to determine the admissibility of exhibits, that the voice on the tape was in fact the voice of Kirk. In view of this stipulation it was unnecessary that any further identification of the voice be made. We reject plaintiff’s contention that the Board findings were not supported by the evidence.

Plaintiff also complains of the Board’s failure to allow plaintiff to inspect the police department internal file of the investigation of the charges against plaintiff. Plaintiff was furnished with a list of witnesses and a transcript of his own statements. The hearing was pursuant to the provisions of Chapter 536, R.S.Mo.1969, Administrative Procedure and Review. There is no provision in that chapter for the type of discovery sought by plaintiff and refused by the Board. National Advertising Company v. State Highway Commission, 549 S.W.2d 536 (Mo.App.1977).

Plaintiff’s next point is that the Board, through the hearing officer, erred in failing to strike the testimony of Odell Herron, when the witness, on cross-examination, invoked his Fifth Amendment privilege not to testify. The hearing officer in his report to the Board, after the hearing was concluded, sustained the objection and ordered all of Herron’s testimony stricken. Plaintiff’s present contention of error is simply contrary to the record.

Plaintiff’s next point is that the Board erred in admitting into evidence transcripts of the tapes of the telephone communication between plaintiff and Kirk, because the tapes themselves were available and constituted the best evidence of the conversations. In fact, the tapes were introduced into evidence. The transcripts were properly identified and the method and accuracy of their preparation was testified to. No contention was raised in the hearing or here that they are not accurate or what if any errors are present. The transcripts were simply an aid and a convenience to the Board during the trial. United States v. Turner, 528 F.2d 143 (9 Cir. 1975) [44—47] and Baysinger v. State, 550 S.W.2d 445 (Ark.1977) [6] are sound and applicable here. We find no error in the admission into evidence of the transcripts.

Plaintiff’s next point is somewhat more complex. As a part of the police department investigation, plaintiff was interrogated by an officer of the internal affairs department. Prior to that interrogation plaintiff was warned that he was entitled to invoke his Fifth Amendment privileges but that his refusal to answer questions could subject him to disciplinary action including dismissal. He was also advised that if he chose to answer the questions his responses could be utilized against him in a disciplinary proceeding but could not be used against him in any criminal proceeding. Plaintiff elected to answer the questions and his answers were used against him in the disciplinary proceedings. Plaintiff does not challenge this procedure.

At the hearing plaintiff elected to testify and was sworn. At that juncture, and before any testimony of plaintiff, the attorney for the department advised the hearing officer, plaintiff, and plaintiff’s counsel that if plaintiff’s testimony at the hearing was incriminating it would be .turned over to prosecuting authorities for possible submission to a grand jury, and urged that plaintiff be advised of his Fifth Amendment rights. After consultation with his attorney, plaintiff decided not to testify and the hearing officer announced that no inference would be drawn from his refusal to so testify. Plaintiff asserts that this action by the department’s attorney placed him between “The rock and a whirlpool” condemned in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assn. Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). We disagree. Those cases all involve situations in which the individual was required to answer questions to avoid loss of employment and where the answers so given were or could be used to prosecute him for crimes revealed. That is not the case here. Plaintiff was not threatened with loss of employment if he failed to testify at the hearing solely because of such failure to testify. What he lost was an opportunity to testify in his own defense. But this lost opportunity is exactly what any individual involved in litigation loses when he elects not to testify. The Fifth Amendment gives no protection from that loss.

Nor was the initial interrogation procedure contrary to the above-cited cases. The answers given by plaintiff were not to be used against him in any criminal proceeding. Both Gardner and Uniformed Sanitation Men, supra, recognize that the threat of loss of job because of failure to cooperate by answering legitimate questions directed to the employee’s performance of his duties is not precluded by the Fifth Amendment if the answers cannot be used against him in a criminal proceeding. We find plaintiff’s point to be without merit.

The final point is that the Board erred in failing to grant plaintiff’s motion to suppress the recordings of the telephone conversations between plaintiff and Kirk. These recordings were obtained as a result of wire taps on Kirk’s phones authorized by 18 U.S.C. §§ 2510-2520. The authorization was granted to obtain evidence on federal narcotics law violations. No contention is raised that the wire-taps were not properly authorized and that the communications were not lawfully intercepted. Plaintiff premised his motion to suppress upon the provisions of 18 U.S.C. § 2517(3) and (5) and his contention that those sections require an after-interception judicial authorization before testimony may be adduced concerning “offenses” not covered by the original authorization order. No such after-interception judicial authorization appears of record. The parties and the hearing officer dealt with the matter on the supposition that its resolution turned upon (1) whether evidence obtained by wire-tap could be offered at all in an administrative hearing and if so (2) whether the term “offenses” pertains to the subject matter of the hearing or of the communications intercepted. As to the first question it is clear by the 1970 amendment of Sec. 2517(3) that such evidence may be used in “any proceeding held under the authority of the United States or of any State or political subdivision thereof.” This proceeding was under the authority of the statutes of the State of Missouri.

The second question need not be resolved. Sec. 2518(10)(a) provides that motions to suppress such evidence may be based upon three specific grounds. No challenge has been made to the wire-taps here on any of those three grounds. The provisions of the law in question deal with two distinct areas: unlawful interception and unlawful disclosure. The federal courts have consistently held that a motion to suppress lies only for unlawful interception, not for unlawful disclosure. For the latter the proper relief is through a civil cause of action. 18 U.S.C. § 2520. See United States v. Iannelli, 477 F.2d 999 (3 Cir. 1973); United States v. Vento, 533 F.2d 838 (3 Cir. 1976); United States v. Rabstein, 554 F.2d 190 (5 Cir. 1977). The purpose of the disclosure provisions of Sec. 2517 is to preclude investigatory authorities from obtaining an order for wire interception upon allegations of one crime when in fact they are seeking evidence of an entirely different crime for which they cannot obtain authority to intercept. United States v. Aloi, 449 F.Supp. 698 (E.D.N.Y.1977) [22]. If such a state of affairs was established by the evidence, suppression might be the proper remedy, not because the disclosure is unlawful but because the interception was. There is neither contention nor the slightest shred of evidence that the interception here was a subterfuge. In fact the evidence establishes the contrary. Plaintiff’s motion was directed to alleged unlawful disclosure, not unlawful interception. The statute does not require suppression in that situation and the Board did not err in admitting the evidence.

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.

ADDENDUM

“CHARGE I Police Officer William Cox, Department Serial Number 2855, a member of the Metropolitan Police Department of the City of St. Louis, Missouri while assigned to the Sixth District, did violate Rule 7, Section 7.010(c) of the Police Manual, published July, 1970 by the Board of Police Commissioners, which rule in applicable part provides that an officer may be disciplined for ‘Conduct unbecoming to a member of the Department’, by associating with and making several phone calls to Eugene Kirk, Sr., a known narcotics ‘king pin’ in the St. Louis area, contrary to the good order and discipline of the Department, and bringing discredit to himself, in particular and to the Department in general.

CHARGE I Specification 1 Between September 1, 1974 and November 1, 1974 Police Officer William Cox, DSN 2855, associated with a known narcotics ‘king pin’ in the St. Louis area, known as Eugene Kirk, Sr., by meeting with Mr. Kirk at the home of Mr. Kirk and elsewhere and by making and receiving several telephone calls between himself and Mr. Kirk, when no justifiable purpose existed for Police Officer Cox maintaining such a close relationship with an individual of such known unsavory character.

CHARGE III Police Officer William Cox, Department Serial Number 2855, a member of the Metropolitan Police Department of the City of St. Louis, Missouri, on October 7, 1974 and October 13, 1974, violated Rule 9, Section 9.G01(i) of the Police Manual, published July, 1970 by the Board of Police Commissioners, which rule in applicable part provides, ‘Interfering with the course of justice in any fashion whatsoever is forbidden’, and Section 9.001(j) ‘no advice or information shall be given to any arrested person, or others for him, in relation to the defense or prosecution against him’, by informing Eugene Kirk, Sr. of the activities of a parole officer assigned to the case of the son of Eugene Kirk, Sr., contrary to the good order and discipline of the Department, and bringing discredit upon himself in particular, and to the Department in general.

CHARGE III Specification 1 On October 7, 1974 and October 13, 1974, Police Officer William Cox, dsn 2855, had telephone conversations with Eugene Kirk, Sr., wherein Police Officer Cox told Eugene Kirk, Sr., that a new probation officer who had been assigned to the case of Buttons Kirk was going to try to have Buttons Kirk’s probation revoked, and Police Officer Cox supplied Eugene Kirk, Sr., with the name of the new probation officer who was taking this action.

CHARGE TV Police Officer William Cox, Department Serial Number 2855, a member of the Metropolitan Police Department of the City of St. Louis, Missouri, violated the following sections of the Police Manual, published July, 1970 by the Board of Police Commissioners: Rule 9, Section 9.001(r) ‘Neglect of duty, improper performance of duty, sleeping or loafing while on duty,’ is subject to disciplinary action; Section 9.001(g) ‘No police information, of any nature, shall be disclosed unless it is proper and necessary under the circumstances’; Section 9.001(i) ‘Interfering with the course of justice in any fashion whatsoever is forbidden; Section 9.001(j) ‘No advice or information shall be given to any arrested person, or others for him, in relation to the defense or prosecution against him’; Rule 7, Section 7.010(g) ‘Borrowing, obtaining, receiving, soliciting or accepting any money, securities, property, or other valuable thing or any credit or guarantee of credit either directly or indirectly, from any tavern keeper or proprietor, any professional bondsman, any gambler, any person liable to arrest or complaint, any person in official custody or free on bail or any relatives or employees of such persons’, in that during the investigation of a homicide and assault, which took place at 6107 West Florissant, on August 26, 1974, by conversing with Eugene Kirk, Sr., during the course of the investigation and the Grand Jury Hearing, supplied Eugene Kirk, Sr., with information concerning the investigation and indicating to Eugene Kirk, Sr., that he would attempt to have the case nolle prossed, and Police Officer Cox produced evidence to authorities which was designed to have the case dismissed, and Police Officer Cox solicited female companionship and gifts from Eugene Kirk, Sr. during the course of this investigation, during this time Eugene Kirk, Sr., had expressed to Police Officer Cox his interest in the arrested subject Odell Herron, contrary to the good order and discipline of the Department, and bringing discredit to himself in particular and to the Department in general.

CHARGE IV Specification 1 Police Officer William Cox, dsn 2855, during the investigation of a murder which took place on August 26, 1974 at 6107 West Florissant, made contact with Eugene Kirk, Sr., at which time Eugene Kirk, Sr., indicated to Police Officer Cox that he was interested in helping the arrested subject Odell Herron. Police Officer Cox kept Eugene Kirk, Sr. informed of the developments of the investigation and the search for witnesses to the murder and indicated during a telephone conversation on October 13, 1974 that he should be able to get the case nolle prossed after he, Cox, testified that a witness had been threatened. Police Officer Cox further told Eugene Kirk, Sr. that he had primed the Assistant Circuit Attorney that he should get this case taken care of on the 23rd of October, 1974. Also, during the investigation, Police Officer Cox was provided with female companionship by Eugene Kirk, Sr., and solicited from Eugene Kirk, Sr., additional female companionship in return for Officer Cox interceding in the investigation to assist Odell Herron, a friend of Eugene Kirk, Sr.

CHARGE VI Police Officer William Cox, Department Serial Number 2855, a member of the Metropolitan Police Department of the City of St. Louis, Missouri, violated Rule 7, Section 7.010(c) of the Police Manual, published July, 1970 by the Board of Police Commissioners, which rule in applicable part provides ‘Any conduct unbecoming to a member of the Department’, by verbally accosting a member of the Circuit Attorney’s Staff on April 4,1975.

CHARGE VI Specification 1 On April 4, 1975, in the Sixth District Police Station, Police Officer William Cox, dsn 2855, confronted Mr. John Channcelor, an Assistant Circuit Attorney in the City of St. Louis, Missouri, and hollered at Mr. Channcelor, ‘Channcelor, you cock-sucker, did you testify against me in the Grand Jury.’ ”

      . Charges I, III, IV and VI have been attached as an addendum to this opinion.

      . § 2517. (3) Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.

      . § 2517. (5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

      .“(i) the communication was unlawfully intercepted;
      (ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or
      (iii) the interception was not made in conformity with the order of authorization or approval.”


source: Caselaw Access Project

author: FLANIGAN, Presiding Judge.

license: Public Domain

text:
    DON L. TULLIS & ASSOCIATES, INC., Respondent, v. Vance K. GOVER et al., Appellants.
    No. 10555.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 18, 1979.
    As Modified on Court’s Own Motion Feb. 9, 1979.
    Motion for Rehearing or to Transfer Denied Feb. 20, 1979.
    Application to Transfer Denied April 10, 1979.

      Tom B. Kretsinger, Warren H. Sapp, Kansas City, pro se and for appellants.

      Gary R. Cunningham, Francis H. McCler-non, Jr., Daniel, Clampett, Rittershouse, Dalton & Chaney, Springfield, for respondent.
    Before FLANIGAN, P. J., TITUS, J., MOORE, KENNEDY and CAMPBELL, Special Judges.
   FLANIGAN, Presiding Judge.

Plaintiff Don L. Tullís and Associates, Inc., a corporation, brought this action against defendants M. F. Rippey, W. H. Tate, Kenneth E. Johnston, Vance K. Gov-er, Tom B. Kretsinger, and Warren H. Sapp. The petition contained eight counts and named additional defendants which included Refrigerated Food Line, Inc. (“Refrigerated”). Prior to the trial, judgment in favor of plaintiff and against Refrigerated was entered, by stipulation, on Counts I and VII. Plaintiff dismissed all other counts of the petition except Count VI which was against the six defendants first listed and the cause proceeded to trial on Count VI.

Count VI was based on obligations allegedly incurred by the six defendants emanating from a document entitled “Guaranty,” Exhibit 2, which is set out marginally. The trial court, sitting without a jury, found the issues on Count VI in favor of the plaintiff and awarded judgment in the sum of $10,000 together with interest and costs. The six defendants appeal.

Defendants’ brief contains seven “points relied on.” Each point advances an independent reason why plaintiff should have been denied any relief on Count VI.

In the trial court defendants filed a motion for new trial which included some, but not all, of the seven appellate assignments of error. Plaintiff argues that the assignments which were omitted from the motion have not been preserved for review. Plaintiff’s position is incorrect. In a case tried without a jury, a motion for new trial is not necessary “to preserve any matter for appellate review,” Rule 73.01 par. (2)(b), and if a motion for new trial is filed, the fact that it may be imperfect does not prejudice the appellant’s position on appeal. Coale v. Rickard, 540 S.W.2d 151, 152[1] (Mo.App.1976); South Side Plumbing Company v. Tigges, 525 S.W.2d 583, 586[1] (Mo.App.1975).

Appellate review is limited to those issues presented in defendants’ points, Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3] (Mo.1964); Brewer v. Blanton, 555 S.W.2d 381, 383[1] (Mo.App.1977); and this opinion should be so viewed.

Summarizing the germane evidence has been difficult because portions of the record are vague and disorganized. The facts underlying the instant action had their beginning in 1971. Refrigerated, a corporation, was a motor carrier whose operations were subject to regulation by the Interstate Commerce Commission. Refrigerated was required to carry liability insurance. Its financial condition in that year was not good and it ceased operations in July.

The six defendants are shareholders of Refrigerated. Rippey, Tate, Johnston, and Gover each owned 20 percent of the stock in Refrigerated and Kretsinger and Sapp each owned 10 percent. Rippey is the president of Refrigerated and a member of its board. Some (and probably all) of the other five defendants are also directors. Kretsinger and Sapp are lawyers.

By reason of prior dealings between plaintiff and Refrigerated, the latter, in early 1971, owed plaintiff approximately $18,000. If Refrigerated was forced to cease operations because it could not obtain the required insurance, plaintiff’s prospects for collecting that debt were dim.

Plaintiff, a Florida corporation, operated an insurance agency. Don L. Tullis is the president of plaintiff. Another insurance firm in the picture was the Springfield, Missouri firm of Nixon, Shipp and Roderick. For present purposes this firm may be regarded as one person and will be referred to as “Nixon.”

In order to continue its business operations it was necessary for Refrigerated to obtain three policies of insurance, each having a policy period commencing March 8, 1971. Two of the policies (providing, respectively, liability insurance and cargo insurance) were being handled through Nixon and the latter received compensation therefor as the selling agent. The third policy (providing “umbrella” insurance) was handled by plaintiff and it was entitled to receive the commission generated by the sale of that policy.

The three policies required a total premium of $71,012. Refrigerated was able to make, and did make, a cash down payment of $6,012. It was necessary to obtain financing for the $65,000 balance. Nixon was unable to arrange that financing. Refrigerated (and the six defendants) requested plaintiff to arrange it.

Pursuant to the foregoing request, Tullis (acting for plaintiff) on some date or dates shortly prior to March 11, 1971, had a series of conversations with Rippey. Tullis also “met with the board” of Refrigerated “several months” prior to March 1971. The “insurance problems” of Refrigerated were discussed. Acting at the request of the defendants, Tullis negotiated with a bank (State Bank of Arlington) located in Jacksonville, Florida. Those negotiations culminated in the execution of a document entitled “premium contract.” That document will be referred to as “Appendix A” for the reason that it is so denominated in the guaranty, Exhibit 2, set forth in footnote 1.

On March 11, 1971, Refrigerated (acting through its president Rippey and its secretary Gover) and the bank executed Appendix A. That document identified the three policies and listed their respective premiums. It recited that the bank had paid $65,000 to the respective insurance companies. Among the provisions of Appendix A were the following:

1. A promissory note was to be executed by Refrigerated in favor of the bank calling for the payment of the $65,000 (plus certain finance charges) in nine equal monthly installments, the first commencing April 10, 1971. This note, so executed, was incorporated in Appendix A.

2. As security for the payment of the note, Refrigerated assigned to the bank all “unearned or returned premiums at any time payable on said policies.”

3. In the event of nonpayment of any installment when due, the bank had the option of declaring, without notice, the entire balance due and the bank was given the right to cancel the policies and receive all returned or unearned premiums for application to the indebtedness. Refrigerated would deliver the policies to the bank for that purpose.

4. Refrigerated appointed the bank its attorney in fact to cancel the policies and to receive the unearned or returned premiums.

The reverse side of Appendix A contained a guaranty agreement whereby plaintiff and Nixon guaranteed the prompt payment to the bank of all monies due it from Refrigerated under the note.

It was not uncommon for plaintiff to arrange for the financing of insurance premiums in the manner accomplished by Appendix A. When doing so plaintiff usually required from its customer (the insured) a down payment of 20 percent or 25 percent of the policy premium. Such a payment (coupled with the anticipated refund of each unearned premium) would adequately protect plaintiff from loss to which plaintiff would be exposed by reason of its acting as a guarantor of the loan which the bank would make to the insured.

For the instant three policies plaintiff, customarily, would have required a cash down payment in the neighborhood of $16,-000. Refrigerated, however, could make a cash down payment of only $6,012. Thus other arrangements had to be made. All these factors were known by defendants prior to March 8,1971, the inception date of the three policies.

Prior to the execution of Appendix A there was an understanding between plaintiff and the six defendants that the latter would furnish plaintiff with some type of guaranty whereby the defendants would indemnify plaintiff for any loss plaintiff incurred in its role as a guarantor of Appendix A. Plaintiff felt that if such a guaranty had a collectible amount of $10,000 it would provide a sufficient “cushion” for plaintiff’s exposure. That cushion would be a sufficient inducement for plaintiff to make the appropriate arrangements with the bank. Appendix A was the product of those arrangements.

On March 11,1971, after Appendix A had been executed, plaintiff sent Refrigerated a document, not in evidence, for execution by the six defendants. The document plaintiff sent Refrigerated was not signed by any of the six defendants. Instead the six defendants signed Exhibit 2 and sent it to plaintiff. At least a portion of Exhibit 2 was drafted by defendants “Kretsinger and/or Sapp.”

Upon receiving Exhibit 2 plaintiff, according to president Tullis, felt that “it appeared to be adequate.” Tullis telephoned Rippey, discussed Exhibit 2 with him and, in essence, accepted Exhibit 2. Plaintiff was then in possession of the insurance policies and plaintiff, satisfied with Exhibit 2, “allowed Appendix A to remain in force.” Defendants introduced evidence to the effect that if Exhibit 2 had been unacceptable to plaintiff, plaintiff could have cancelled the policies and obtained the refund of unearned premiums.

Refrigerated made the first three monthly payments to the bank but, in the summer of 1971, defaulted on the fourth payment. Refrigerated went out of business at that time and Nixon and plaintiff took the steps necessary to cancel the three insurance policies.

Refrigerated’s initial obligation to the bank, under the note, amounted to $65,000 plus interest, so that the total amount due was $67,787.15. The following table reflects payments on the note which were derived from sources other than the plaintiff:

[See following illustration.]
Original amount due on note $67,787.15
Payments on note:
Payments made by Refrigerated (three monthly installments) 20,336.13
Refund received in 1971 on policy written by plaintiff 4,219.00
Refund received in 1971 on policies written by Nixon 20,887.00
Refund received in 1976 on policies written by Nixon 12,705.00
Total refunds of unearned premiums 37,311.00
Total payments 58.147.13
Balance due to bank on Appendix A $10,140.02

In late December 1971 plaintiff made a written demand upon the six defendants that they fulfill their respective obligations under Exhibit 2 and make the appropriate payment to the bank. None of the six defendants made payment, plaintiff did so, and this action was instituted.

Defendants’ first point is that plaintiff was not entitled to relief because plaintiff has been “fully reimbursed,” in fact overpaid, for funds paid by plaintiff to the bank in accordance with plaintiff’s duty as guarantor under Appendix A. A sufficient answer to this point is that it is factually unfounded. Defendants’ first point has no merit.

Defendants’ second point is that Exhibit 2 was unenforceable because it was not supported by “a valid consideration” or by “adequate consideration.”

Although a contract of guaranty requires consideration, Ireland v. Shukert, 288 Mo.App. 78, 177 S.W.2d 10, 14[5] (1944) it is not necessary that the guarantor derive any benefit from either the principal contract or the guaranty. DeLassus v. Russell, 296 S.W. 225, 227[1-2] (Mo.App.1927). A benefit to a third person, or a detriment to a promisee (the guarantee) or a change in the promisee’s relations in consequence of the promise is sufficient consideration to render the promisor obligated. Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470, 474[10] (Mo.1946). If the guaranty is executed subsequent to the principal contract, it requires a new and independent consideration. J. R. Watkins Company v. Smith, 31 S.W.2d 544, 546[3] (Mo.App.1930).

In the argument under their second point defendants state: “Neither plaintiff nor the bank gave any new consideration or suffered any new detriment in exchange for receiving the guaranty agreement.” Defendants do not argue that the making of the loan by the bank or the execution by the plaintiff of its guaranty, singly or in combination, would not constitute adequate consideration so long as their accomplishment was timely with respect to the execution by defendants of Exhibit 2. On the other hand, what defendants do stress is the fact that those actions, by the bank and plaintiff respectively, were accomplished on March 11,1971, and that defendants did not sign Exhibit 2 until several days later.

The record does not show on what date defendants signed Exhibit 2. The document itself bears the date April 1, 1971. However, it was signed prior to April 1, 1971, because the defendants signed it in Missouri and it was thereafter mailed to plaintiff in Florida and plaintiff received it on March 24, 1971. The record does not show when Exhibit 2 was deposited in the mail nor how long it was in the custody of the postal service. The record does demonstrate, however, that the bank would not have made the loan without the guaranty of plaintiff and that plaintiff signed its guaranty in reliance upon defendants’ prior promise to execute a guaranty.

Under the foregoing circumstances the execution by defendants of Exhibit 2 may be considered to have been contemporaneous with the making of the loan by the bank and the execution by plaintiff of its guaranty. Centennial State Bank v. S.E.K. Const. Co., Inc., 518 S.W.2d 143, 150[9] (Mo.App.1974). In that case a guaranty under a promissory note was given ten days after the note was executed. The court held that the consideration for the guaranty was the making of the loan evidenced by the note and that under the circumstances the guaranty “can be said to be contemporaneous with the execution” of the note, “even though not given on the same day.”

In addition, the following language is found in 38 Am.Jur.2d Guaranty § 45, p. 1048:

“Although the guaranty promise may have been made at a time subsequent to the creation of the principal obligation, the guaranty promise is founded upon a consideration if the promise was given as the result of previous arrangement, the principal obligation having been induced by or created on the faith of the guaranty.” See also 167 A.L.R. 1174, at 1203.

Defendants’ second point has no merit.

Defendant’s third point is that Exhibit 2 was unenforceable because defendants did not receive notice of plaintiff’s acceptance of it.

As previously stated, after plaintiff had received Exhibit 2 from defendants, plaintiff’s president Tullís had a telephone conversation with defendant Rippey in which Exhibit 2 was discussed and Tullís, for plaintiff, in essence accepted Exhibit 2. Defendants make no claim that Rippey did not have authority to receive that information or that he did not relay it to the other five defendants. The adequacy of that notice of acceptance need not be determined for the reason that under the circumstances no notice to defendants of plaintiff’s acceptance of the guaranty was required.

Where the instrument of guaranty is executed contemporaneously with the creation of the principal obligation, notice of acceptance need not be shown. “The guarantor, in such cases, knows precisely what he guarantees, and the extent of his responsibility; and any further notice to him would be useless.” 38 Am.Jur.2d Guaranty § 98, p. 1105.

At the time defendants executed Exhibit 2, they were fully aware of their obligations in case of Refrigerated’s nonperformance of Appendix A for the obvious reason that Appendix A was an attachment to Exhibit 2. “[W]here a party directly binds himself to be responsible for the fulfillment of another’s contract already made, no such notice can be necessary. . Of what was the guarantor to be notified? The agreement between the two parties to the contract, the performance of which on one side is guaranteed, is before the guarantor when he signs his obligation to be responsible, and is referred to in his guarantee. He knows exactly the extent of his responsibility, just as well as the party who asks the security. Whether either party to the original contract will comply with his engagements is in the future, but what the responsibility of the guarantor will be in either event is a matter fixed and certain. There was no question of notice or acceptance in this case.” (Emphasis added.) Davis Sewing Machine Co. v. Jones, 61 Mo. 409, 411 (1875). See also Linro Medicine Co. v. Moon, 190 Mo.App. 366, 177 S.W. 322, 323[2] (1915); Texas Company v. Stanberry, 165 S.W.2d 696, 700 (Mo.App.1942); Ireland v. Shukert, 238 Mo.App. 78, 177 S.W.2d 10, 16[11] (1943); Anno. 6 A.L.R.3d 355, 383.

In addition, there is no requirement that the guarantor be given notice of the acceptance of the guaranty by the guarantee where the guaranty is given in response to a request for it by the guarantee. N. 0. Nelson Mfg. Co. v. Shreve, 94 Mo.App. 518, 68 S.W. 376, 377[1] (1902); Miner v. Bennett, 556 S.W.2d 692, 695[4] (Mo.App.1977); Anno. 6 A.L.R.3d 355, 400.

Defendants’ third point has no merit.

Defendants’ forth point is that they were discharged from their obligations under the guaranty for the reason that Refrigerated, under Appendix A, paid more than $10,000 to the bank on the loan. Defendants rely upon that portion of Exhibit 2 which reads: “It is understood that on the payment of $10,000 said guarantors shall be released from any liability under this guaranty.”

“[T]he plain language of a contract of guaranty (as the plain language of other contracts) is considered with a view of discovering and giving effect to the intention of the parties. When the language expressing the terms and provisions of a contract of guaranty is of doubtful meaning, the same rules of the construction are to be applied as are applied in the construction of other written instruments of doubtful meaning. ... In construing a contract of doubtful meaning, the court must give such construction as will be fair and reasonable between the parties; the ordinary meaning of the language used must be given effect, and the intention of the parties gathered from a consideration of all of the provisions of the instrument. . *[T]he court may consider the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and its interpretation by the parties’.” Industrial Bank & Trust Co. v. Hesselberg, 195 S.W .2d 470, 476 (Mo.1946). See also McIntyre v. McIntyre, 377 S.W.2d 421, 425[4, 5] (Mo.1964).

Defendants seek to derive benefit from payments made by Refrigerated and not by defendants, from payments made under Appendix A and not under Exhibit 2, from payments made to the bank and not to plaintiff. It is true that Refrigerated, in paying the first three installments on the note, paid more than $10,000. That fact, however, did not relieve defendants of their obligations under the guaranty.

Exhibit 2, manifestly, is not a model of draftsmanship. Whether all of Exhibit 2 was drafted by defendants-lawyers “Sapp and/or Kretsinger” is not shown but the record does reflect that the paragraph containing the $10,000 limitation and the following paragraph containing the limitations on the guarantor’s “individual liability” were drafted by one or both of those defendants.

If the parties intended that the payment of $10,000 or more by Refrigerated to the bank would operate to discharge the defendants, that intention could have been stated simply. Examination of what Exhibit 2 does state shows the invalidity of defendants’ fourth point.

The opening paragraph of Exhibit 2 states that the defendants “hereby guarantee a loan made to [Refrigerated] by [the bank] in the amount shown in . . Appendix A.” The debt being guaranteed was the loan ($65,000 plus finance charges), not the first $10,000 of the loan. The paragraph containing the $10,000 limitation was inserted by defendants-lawyers. The only parties mentioned in that paragraph are “said guarantors.” The trial court properly construed that paragraph to mean that the $10,000 payment mentioned in it was to come from them and was to be a payment under the guaranty itself. See State Capitol Bank of Oklahoma City v. Norick, 550 P.2d 587, 591[2, 3] (Okl.App.1976) where the court was confronted with a somewhat similar situation and reached the same conclusion.

The circumstances leading up to the execution of Appendix A and Exhibit 2 are consistent with this court’s holding that the $10,000 payment mentioned in Exhibit 2 refers to a payment by the guarantors under the guaranty and does not refer to the first $10,000 to be paid by Refrigerated under Appendix A. Exhibit 2 was executed to provide plaintiff with a “cushion” substantially similar to a cash down payment. Plaintiff’s protection from its exposure on its guaranty would be provided by such a down payment coupled with the unearned premium to be refunded in the event of policy cancellation. The cancellation of some of the policies required a 30-day notice. The down payment (or Exhibit 2 in substitute therefor) was intended to protect plaintiff in light of the fact that during the 30-day cancellation period the policy would remain in effect and the premium for that period would be earned and not be refunded. Moreover, the amount of premiums refunded might be less than the balance due on the note. Plaintiff’s need for this additional protection lasted throughout the term of the bank’s loan to Refrigerated. This need did not come to an end merely because Refrigerated made payment of $10,000 to the bank.

Defendants’ fourth point has no merit.

Defendants’ fifth point is that the trial court erred “in concluding that defendants’ liability was joint and several, and in failing to conclude that any liability was several only, under the specific terms of the guaranty.” This point falls short of complying with Rule 84.04 which requires that a point “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.”

Defendants’ argument under Point V is also uninformative. The argument does point to that portion of Exhibit 2 which reads as follows:

“Guarantors specifically limit their individual liability in the following percentages.
Percentage of loan
M. G. Rippey 20
W. H. Tate 20
Kenneth E. Johnston 20
Vance K. Gover 20
Tom B. Kretsinger 10
Warren H. Sapp 10”

Defendants then say that if this court concludes that “defendants have incurred some liability,” this court “must modify the judgment to make any such liability several.”

Defendants’ brief does not point out the significance, if any, of the claimed error. It may be that defendants are arguing that defendant Rippey, for example, should not have been held liable to the plaintiff in the sum of $10,000 but that his liability should have been limited to 20 percent of that sum, and the same would be applicable to defendants Tate, Johnston, and Gover. Similarly the liability of Kretsinger would be limited to $1,000 (10 percent of $10,000) and so would that of defendant Sapp.

On the other hand it may be that defendants are arguing that the quoted portion of Exhibit 2, although of no aid to four of the defendants (Rippey, Tate, Johnston and Gover) under the instant facts, renders the judgment excessive with respect to the liability of Kretsinger and that of Sapp because the limitation of “10 percent of loan” applicable to the latter two defendants comes into play.

Defendants (perhaps understandably) make no effort to provide this court with their construction of the quoted portion. They content themselves with saying the trial court was wrong but fail to add “wherein and why.”

It will be observed that the quoted portion limits the “individual liability” of the guarantors to “20 percent of loan ” with respect to four of the defendants and “10 percent of loan ” with respect to Kretsinger and Sapp. As stated previously, this provision was drafted by “Kretsinger and/or Sapp.”

It is clear that the limitation is to be computed on the basis of “percentage of loan.” The amount of the loan, as set forth in Appendix A, is at least $65,000 and if the finance charges are included, the amount is even larger. Twenty percent of $65,000 is $13,000. The judgment was in the amount of $10,000. It follows that four of the defendants would not benefit from the limitation even if it be assumed that they were entitled to it so far as their liability to plaintiff is concerned. On the other hand Sapp and Kretsinger may be asserting that the 10 percent limitation entitles each of them to relief from the judgment insofar as it exceeds $6,500.

Whether a given contract binds two (or more) promisors severally, jointly, or jointly and severally, is determined by a body of rules set forth in Illinois Fuel Co. v. Mobile & O. R. Co., 319 Mo. 899, 8 S.W.2d 834, 840[5-7] (Mo.1928). Those rules were enumerated in light of § 431.110 which reads, “All contracts which, by the common law, are joint only, shall be construed to be joint and several.”

The rules set forth in Illinois Fuel include the following:

1. Under the common law, where two or more persons undertake the performance of an obligation, the presumption is that the undertaking was joint. Words of express joinder are not necessary for this purpose. Words of severance are required to produce a several responsibility, and in the absence of such words the undertaking is joint and not several.

2. A joint contract is one by which two or more promisors are jointly bound to fulfill its obligations, and either of whom may be charged with the entire liability under the contract.

3. Whether the promises are several or joint, or joint and several, depends on the construction of the language used, and the intention of the parties as manifested by the language must be followed by the court.

4. An obligation undertaken by two is presumably joint, in the absence of express words to render it joint and several, or a statute declaring every contract, though joint in its terms, to be several as well as joint.

The court held, in Illinois Fuel, that the liability of two railroad companies under a contract was joint and several where the contract read: “The railroad companies hereby purchase . . . The railroad companies agree to remit . . .” The court pointed out that the contract expressed a joint obligation and that it contained no express words of severance. Under Illinois Fuel, the contract of defendants, as expressed in the opening paragraph of Exhibit 2, was joint and several.

If Exhibit 2 did not contain the quoted portion, defendants’ obligations would be joint and several. The inquiry is, does the quoted portion change that result.

The quoted portion uses the expression, “their individual liability,” and it is at least arguable that that language means that the liability imposed in the prior paragraphs was something other than “individual,” to-wit, joint and several. This construction gains force when the quoted portion is scrutinized. With respect to Rippey, for example, it imposed a limitation on his “individual liability” amounting to “20 percent of loan.” That limitation translates into $13,-000. If that limitation were to be applicable to Rippey’s exposure to the plaintiff, it would be meaningless because the prior paragraph of Exhibit 2, containing the $10,-000 limitation for collective liability, was more favorable to Rippey than a $13,000 limitation on his individual liability.

On the other hand, the scriveners of the quoted portion, Kretsinger and/or Sapp, could benefit from the limitation of 10 percent of the loan, a limitation of $6,500. It follows that the quoted portion was inserted solely for the benefit of Kretsinger and Sapp. Each of them owned 10 percent of the stock of Refrigerated and each of the other four defendants owned 20 percent. It is clear that the purpose of the quoted portion was to provide for contribution, among the six defendants, based upon their respective stockholdings.

As might be expected, in view of the peculiar nature of Exhibit 2, factual precedents are unlikely to be encountered. However a case which is consistent with the foregoing analysis and holding is Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 69 N.W. 354 (1896).

Defendants’ fifth point has no merit.

Defendants’ sixth point is that plaintiff was not entitled to relief because defendants invoked §§ 433.010 through 433.030 and plaintiff failed to act accordingly.

Those statutes, considered together, permit “a surety for another in any bond, bill or note,” at any time after “an action has accrued thereon” to require, in writing, the person having such right of action forthwith to commence suit against the principal debtor and other parties liable. The method of serving the notice is prescribed. If the action is not commenced within 30 days after the service of the notice, “and proceeded in with due diligence, in the ordinary course of law, to judgment and execution” such surety shall be exonerated from liability to the person so notified.

The fact is that the six defendants did not take the necessary steps to invoke the three statutes, but the particulars of their deficiency need not be described because the statutes are inapplicable in any event. These statutes may be invoked by a surety and may not be invoked by a guarantor. Martinsburg Bank v. Bunch, 212 Mo.App. 249, 251 S.W. 742[2] (1923). See also Stifel Estate Co. v. Celia, 220 Mo.App. 657, 291 S.W. 515, 519[12] (1927); Amick v. Baugh, 66 Wash.2d 298, 402 P.2d 342, 347 (1965). Martinsburg discusses the distinction between a surety and a guarantor.

Defendants have never contended, either in the trial court or in their original brief in this court, that Exhibit 2 was anything other than a contract of guaranty. Their theory throughout has been that they, the defendants, were guarantors and not sureties. In their reply brief defendants “urge this court to take this opportunity to broaden the scope of the statutes to include guarantors.” Defendants’ criticism of the authorities holding otherwise is that they are “very old cases.” Although the precedents may be old, their soundness, like the infinite variety of Cleopatra, is not withered by age.

Defendants’ sixth point has no merit.

Defendants’ seventh point has two prongs of doubtful kinship. They first say that plaintiff is not the real party in interest. This assignment was not raised in the trial court. Authority exists to the effect that such failure is fatal to its assertion on appeal, State ex rel. Community Heat & A. C. Co. v. Schwartz, 452 S.W.2d 243, 248[5] (Mo.App.1970); see also Chicago & N. W. Transp. Co. v. Negus-Sweenie, Inc., 549 F.2d 47, 50[4, 5] (8th Cir. 1977), at least when the defect is not apparent on the record. Hayes v. Jenkins, 337 S.W.2d 259, 262[7] (Mo.App.1960). In addition the complaint lacks factual soundness and is based upon defendants’ misconstruction of certain testimony.

Defendants’ second prong is that the trial court “failed to conclude that plaintiff’s proper cause of action is one for contribution.” So expressed, the statement does not satisfy Rule 84.04. A review of the record and the governing documents, heretofore discussed at length, leads to the conclusion that the relationship between the six defendants and plaintiff was that of guarantors-guarantee and not that of co-guarantors.

Defendants’ seventh point has no merit.

The judgment is affirmed.

All concur.

      . Exhibit 2:
      “Guaranty
      KNOW ALL MEN BY THESE PRESENTS:
      That on this 1st day of April, 1971, the undersigned hereby guaranty a loan made to Refrigerated Food Line, Inc. of Springfield, Missouri, by The State Bank of Arlington, Jacksonville, Florida, in the amount shown in a premium contract entered into by and between Refrigerated Food Line, Inc. and The State Bank of Arlington, Jacksonville, Florida, on the_ day of_, 1971, a copy of which is attached hereto as Appendix A.
      It is understood that on the payment of $10,-000.00 said guarantors shall be released from any liability under this guaranty.
      Guarantors specifically limit their individual liability in the following percentages.
      Percentage of loan
      M. G. Rippey 20
      W. H. Tate 20
      Kenneth E. Johnston 20
      Vance K. Gover 20
      Tom B. Kretsinger 10
      Warren H. Sapp 10
      The terms of this guaranty and any waivers of guarantors shall be the same as those contained in the premium contract between Refrigerated Food Line, Inc. and The State Bank of Arlington, Jacksonville, Florida, attached hereto.
      /s/ M. G. Rippey /s/ W. H. Tate
      /s/ Kenneth E. Johnston /s/ Vance K. Gover
      /s/ Tom B. Kretsinger /s/ Warren H. Sapp”

      . 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.

      . Although Exhibit 2, set forth in footnote 1, is dated April 1, 1971, actually it was signed by the defendants prior to that date. This is demonstrated by the fact that plaintiff received Exhibit 2 from defendants on March 24, 1971.

      . The first installment on Refrigerated’s note, contained in Appendix A, was payable April 10, 1971.

      . Nixon was named as a defendant in another count of the petition. On the morning of the trial in 1976 Nixon made a settlement with the plaintiff and the count against Nixon was dismissed. Actually Nixon had received the refund in 1971 but since the settlement was made in 1976 plaintiff credited that payment on the note at that time. Plaintiff thereupon reduced the ad damnum clause of Count VI against the instant six defendants to $10,140.02.

      . Defendants seek to benefit twice from a single payment. The payments on the note, set forth earlier in the opinion, were itemized in plaintiffs Exhibit 3. The amount which Nixon paid plaintiff in 1976, mentioned in footnote 4, was included in Exhibit 3. Defendants’ computations take credit for the payments included in Exhibit 3 but erroneously take credit again for the amount of the Nixon settlement.

      . See Irwin v. Rawling, 141 S.W.2d 223, 225[3] (Mo.App.1940) where a warranty of attorney authorizing confession of judgment against “the undersigned” was held to impose “joint and several” liability on the two signers.

      . The case is unusual because plaintiff was not the lender but was itself a guarantor of the loan. Perhaps Exhibit 2 should have been labeled a sub-guaranty.

      . Defendants’ claim is based on the argument that Tullis, president of plaintiff, individually paid the bank, by his personal note, and that the plaintiff itself did not make the payment. Tullis’ testimony was that he personally signed the note, not that he signed a personal note. Moreover, p. 9 of defendants’ brief says, “Plaintiff apparently paid the bank.”


author: SWOFFORD, Chief Judge.

text:
    Richard DREISESZUN et al., Appellants-Cross Respondents, v. FLM INDUSTRIES, INC., Respondent-Cross Appellant.
    Nos. KCD 28747, KCD 28753.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.

      Jack N. Fingersh, Robert J. Campbell, Brown, Koralchik, Fingersh & Sildon, Kansas City, of counsel, for appellants-cross respondents.
    George E. Feldmiller, Lawrence R. Brown, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for FLM Industries, Inc.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

This action was instituted by minority common stockholders in a Missouri corporation known as “Harzfeld’s, Inc.” to have the court below determine the fair market value of their stock pursuant to Section 351.-405 RSMo 1969 upon a sale of substantially all of the assets of the corporation. The trial was to the court, without a jury, and both parties thereto separately appealed from the judgment entered below, which appeals were here consolidated for review.

The underlying facts giving rise to this controversy are stipulated or undisputed. The defendant, FLM Industries, Inc., is a Missouri corporation. Prior to March 31, 1972, the corporate name of the defendant was Harzfeld’s, Inc. (Harzfeld’s). The corporation was engaged in operating exclusive specialty stores with five store locations in the Kansas City area and a store at Columbia, Missouri. Originally, the stock in this company was closely held, but in 1959 “went public” through an offering of 46,200 shares of its common stock at $19.50 per share, and thereafter the stock was traded over-the-counter. As of March 31,1972, the total outstanding shares of common stock were 91,688 of which number the plaintiffs owned 3,487 shares. On that date, the numbers of the Siegel family owned 47,850 shares and thus had the controlling corporate interest. For many years, Lester Sie-gel, Sr. and, after his death, Lester Siegel, Jr., actively managed the business affairs of the company.

In the years immediately preceding March 31, 1972, the business affairs of the corporation, while not ever reaching a point of business crisis, did not develop in a progressive or healthy manner. For example, the average net operation earnings of Harzfeld’s for the four-year fiscal period of 1956-1959 was $1.66 per share for common stock. Its gross sales for fiscal 1959 were $10,453,532.00 and for fiscal 1972, $14,603,-263.00. Taking into account the rate of inflation and the competitive necessity of adding stores in outlying shopping centers, this did not represent a healthy growth, although the net book value of the common stock had increased from $37.61 on January 31,1968 to $42.42 on January 29,1972. The outlook for Harzfeld’s as a going concern was not promising. All of the above facts (and many others) were found by the court below in its “Findings of Fact” and no real issue is made in this case as to any of these nor the conclusion to be drawn therefrom.

In any event, the management of Harz-feld’s in 1971 began exploring the possibility of merger or sale of its operation as a going concern to a larger national company in the industry, and in late 1971 such a company, Garfinckel, Brooks Brothers, Miller and Rhoades (Garfinckel), offered to purchase substantially all of Harzfeld’s assets and assume its liabilities for the following considerations and upon the following basis:

1. $1,000,000.00 to be paid in cash;
2. $1,000,000.00 evidenced by a,n unsecured contract of Garfinckel payable $100,000.00 per year for 10 years with interest on any unpaid balance at 7%; and
3. 52,500 shares of unregistered preferred stock in Garfinckel, convertible after three years on a share-for-share basis for Garfinckel common stock paying $1.32 per year in dividends with a liquidating preference of $1,312,500.00.

On February 4, 1972, the Board of Directors of Harzfeld’s accepted this offer, subject to ratification by its shareholders at a special meeting to be held on March 31, 1972. At that time, there were approximately 250 shareholders, including these plaintiffs, and, as pointed out above, the Siegal family controlled the company through majority common stock ownership. Upon receipt of this Garfinckel offer and its qualified acceptance by the Board of Directors of Harzfeld’s, the two stock brokerage firms which had theretofore handled the over-the-counter sales of Harzfeld’s stock (which had never been an active market but transactions in the stock had been limited and isolated [or as known in the trade a “thin”], stopped dealing in the stock entirely and declined to take either ask or bid offers in that market. As a result, the public market was rendered non-existent and no further transactions in Harzfeld’s stock occurred outside of the corporate structure.

In a document dated March 6, 1972, the terms of the proposed sale to Garfinckel, including data concerning the financial conditions of the contracting parties, was sent to Harzfeld’s stockholders, including the plaintiffs, together with a notice of the special stockholders’ meeting to be held on March 31, 1972 and a proxy concerning the sale.

According to the document, the stockholders were notified that Harzfeld’s would sell substantially all of its assets, including the right to the exclusive use of the name “Harzfeld’s”, in return for which Garfinckel would assume Harzfeld’s liabilities, offer employment and consultatory contracts to top Harzfeld’s management, and pay or obligate itself to pay the considerations here-inabove itemized. The document also informed the shareholders that the sale would generate federal income tax refunds estimated to be $375,000.00. Considered in its totality, the document stated that the projected book value per share of Harzfeld’s common stock subsequent to the Garfinckel sale would be $40.00 per share. The terms so described were represented to be “the result of arm’s length negotiations between the management of Harzfeld’s and Gar-finckel and were arrived at after careful consideration and comparison of the respective earnings, net assets and business prospects of the two companies as well as other relevant factors”.

In the same mailing to the stockholders and bearing the same date of March 6,1972, was a “purchase offer” in which Harzfeld’s put forward proposals concerning its corporate structure and activity following the sale to Garfinckel. Harzfeld’s would change its corporate name to FLM Industries, Inc. and would not engage in business activities nor distribute assets received as a result of the sale but would thereafter operate for an indefinite period of time as a holding or investment company. This document further offered to purchase or redeem all shares of common stock, other than those held by the Siegal family, for $23.00 per share, which the management of Harz-feld’s regarded as “a fair present cash price” per share. The stated reason for the exclusion of the Siegel family from this offer was the lack of available cash to redeem all outstanding shares of stock and an unwillingness of the management to expose Siegel family stockholders, participating in the plan, to ordinary income rates of taxation under the Internal Revenue Code. A further reason stated for this exclusion was to reduce the number of shareholders in order to avoid the necessary application, cost of registration, and periodic reporting to the Securities and Exchange Commission under the Investment Company Act of 1940. It was further stated that although there was no compulsion to redeem, the offer projected that if all minority shareholder-offerees accepted, pro forma book value of the stock held by the Siegel family would rise from $40.00 per share (following the proposed sale) to $55.00 per share.

The plaintiffs, as minority shareholders, received these communications and the offer of $23.00 per share and concluded such offer was inadequate and objected to the proposed disposition of the proceeds of the Garfinckel sale. They, representing 3487 shares of the Harzfeld’s stock, made written objections and demand and voted against the transaction, as proposed at the stockholders’ meeting held March 31, 1972. Thus, they protected their rights for judicial determination of “fair value” of their stock under Section 351.405 RSMo 1969. The sale of the assets and change of corporate name were approved and the prior approval of the Board of Directors was ratified by a majority of the stockholders at the March 81, 1972 meeting.

Apparently most of the minority shareholders, if not all, (except these plaintiffs), subsequently accepted the offer of $23.00 per share for their stock. On June 22,1972, this suit was filed invoking Section 351.405 RSMo 1969, which provides in pertinent part as follows:

“Rights of dissenting shareholder — sale or exchange of assets
1. In the event that a sale or exchange of all or substantially all of the property and assets of a corporation, otherwise than in the usual and regular course of its business, is authorized by a vote of the shareholders of the corporation, any shareholder who shall not have voted in favor thereof and who at or prior to the meeting at which said sale or exchange is submitted to a vote shall file with the corporation written objection thereto may, within twenty days after the vote was taken make written demand on the corporation for the payment to him of the fair value of his shares as of the day prior to the date on which the vote was taken authorizing the sale or exchange. * * *
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3. If within such period of thirty days the shareholder and the corporation do not so agree, then the dissenting shareholder may * * * file a petition in any court of competent jurisdiction * * asking for a finding and determination of the fair value of such shares, and shall be entitled to judgment against the corporation for the amount of such fair value as of the day prior to the date on which such vote was taken together with interest thereon to the date of such judgment.
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(Emphasis added)

No issue is presented as to the accepted fact that the plaintiffs fully complied with all of the procedural steps required by this statute, and the sole issue tried below and now under review by this Court is the “fair value” of plaintiffs’ stock and proper methods to be employed in order to arrive at such value.

At the trial below, the plaintiffs sought to prove that the value of their stock was a pro rata share of the value of Harzfeld’s as a going concern based primarily upon the terms of the Garfinckel offer to buy the business and name recognizing that the deferred payments under the contract and the Garfinckel stock consideration should properly be discounted so as to reflect the present cash value of such considerations. While such testimony was received by the Court and is a part of the record, the effect given to such testimony was drastically limited by the trial court, as reflected in its Memorandum Opinion, where the court discusses the fact that most minority shareholders accepted the offer of $23.00 per share. The Court then stated:

“For the limited purpose of showing that the selling (non-dissenting) minority stockholders sold their stock for $23.00 per share with full knowledge of the details of the transaction with Garfinckel, and that their decision to accept the offer of $23.00 was rational, the terms of the sale to Garfinckel is received in evidence. The price paid by Garfinckel is not received in evidence for the purpose of determining ‘fair value’ of the dissenting minority shares." (Emphasis added)

Further, the court attempted to clarify this somewhat confusing statement by further stating in its Memorandum Opinion that the fact that the purchase offer was accepted by “an overwhelming majority of minority stockholders with full knowledge of what they would receive if they elected not to sell” was received “as evidence of the fairness of the price”.

It would appear from these and other statements in the Memorandum Opinion of the court below that the court abdicated, at least in part, its responsibility imposed by § 351.405(3) RSMo 1969 to find and determine the fair value of plaintiffs’ stock to the decision of some minority stockholders to accept the price of $23.00 per share, no matter what may have been their reasons and regardless of whether those decisions were based upon sound accounting or business principles. “Rationality” is not the test to be applied; rather, “fair value” is the guide to the judicial obligation imposed.

The trial court’s attitude is further demonstrated in a colloquy when counsel for plaintiffs was arguing as to the admissibility, probative value and forceful impact of the terms of the Garfinckel purchase in establishing the value of Harzfeld’s and accordingly the fair value of plaintiffs’ shares, where this appears:

“THE COURT: Your clients (plaintiffs) didn’t have the company as a whole to sell. They only had a limited number of shares to sell.”

It would appear, therefore, that the court below in the situation before it would place a different “fair value” per share upon the same classification and kind of stock in a corporation depending upon whether the shares were held by a majority or a minority stockholder, and would find the value of the minority shares to be the amount which the majority stockholders were willing to pay for the minority shares and which a minority shareholder was willing to accept, whether a “fair value” or not, and hold the other minority shareholders to the consequences of that decision. Such is not the legal import or effect of § 351.405, supra. This statute does not by terms or any reasonable interpretation intend that a minority stockholder be in any way penalized for resorting to the remedy afforded thereunder.

While the trial court refused to consider all of the terms of the Garfinckel sale as evidence of “fair value” of the minority shares but only for the limited purpose of showing that the decision of those minority shareholders to accept the $23.00 per share offered was “rational”, it justified the conclusion that the offer of $23.00 per share was a “fair value” for the minority stock by dividing the number of minority shares outstanding on March 30, 1972 into the $1,000,-000.00 cash consideration to be paid by Gar-finckel initially. This was the same method employed by the majority stockholders in making the offer. The method thus employed in evaluating the minority stock is improper, not based upon any sound or logical business or equitable principles, and affords no weight or significance to the long term considerations flowing from the Gar-finckel sale nor to the admitted fact that the sale would result in an income tax refund to Harzfeld’s of some $375,000.00, all of which were and are vital factors affecting the value of Harzfeld’s stock.

In reaching a conclusion as to the meaning of Section 351.405, supra, as it affects the rights of the dissenting minority shareholders-plaintiffs in this action, the primary rule of statutory construction is to ascertain and give effect to the legislative intent. State on Inf. Dalton v. Miles Laboratories, 365 Mo. 350, 282 S.W.2d 564, 573[13] (Banc 1955). In so doing, this Court recognizes that prior to the enactment of this “judicial appraisal” statute, the unanimous consent of all the shareholders in a corporation was required to authorize the transfer of all or substantially all of a going corporation’s assets. Exchange Bank of Novinger v. Turner, 321 Mo. 1104, 14 S.W.2d 425, 430[5, 6] (1929). On this, the Supreme Court in Flarsheim v. Twenty Five Thirty Two Broadway Corporation, 432 S.W.2d 245, 252[6] (Mo.1968), said:

“Statutes dealing with the sale of substantially all of a corporation’s assets are designed primarily for the protection of dissenting shareholders of the corporation. Still v. Travelers Indemnity Company, Mo., 374 S.W.2d 95, 100[2]. It has been said that courts should be careful not to weaken or fritter away by construction the protection given minority shareholders in exchange for dispensing with the necessity of securing unanimous consent of the shareholders for the sale of all or substantially all of the corporate assets. * * * ” (Emphasis added)

In Flarsheim, the court characterized § 351.405 as affording a remedy for dissenting shareholders and setting out the procedures to be followed to protect their rights (l.c. 252[5]). It is not, in any logical sense, an exclusionary rule of evidence as claimed by the defendant, without citation of authority, and espoused by the court below. Rather, the underlying purpose is to assure such dissenting minority shareholders an equitable, just and “fair value” for their stock in the event of a sale of the corporate assets. Dissenting shareholders electing to pursue the remedy afforded by § 351.405 to have the “fair value” of their interests judicially determined are entitled to present any evidence, otherwise admissible, tending to establish such value without the handicap of any exclusionary rule of evidence read into the terms of such statute. Nor can the Legislature be charged with the intent to exclude the value of the stock as measured by the sale of the assets and assumption of the liabilities of the corporation and the considerations therefor formalized by solemn contract.

In this connection, it again merits comment that the terms of the Garfinckel sale were fixed and agreed upon in early February, 1972, by the Board of Directors of Harzfeld’s, subject only to the approval of the stockholders in the meeting of March 31,1972; that the Siegel family, owning the majority of the stock, could grant the majority approval of the stockholders which was the only additional step required under the statute (regardless of minority objection); and, such de facto approval in February was accomplished by formal approval on March 31, 1972 and thus the Garfinckel contract became binding and effective. Whatever the “fair value” of the plaintiffs’ stock, it was the same on March 30, 1972, the day before the stockholders’ meeting, as it was on March 31,1972. The terms of the Garfinckel contract represented the price for which a willing seller (Harzfeld’s) would sell, and a willing buyer (Garfinckel) would pay, for the business as a going concern representing the result of arm’s length, fair and knowledgeable negotiations.

There is, of course, “no simple, precise mathematical formula” for determining the “fair value” of corporate stock under § 351.405 or other statutes employing this term. Each case presents different elements of value and each must be viewed separately. However, in Phelps v. Watson-Stillman Company, 365 Mo. 1124, 293 S.W.2d 429 (1956), (a case involving determination of “fair value” of stock upon consolidation of corporations) the court stated (l.c. 433[3]):

“ * * * in general some of the factors to be considered and weighted (sic) are asset value, earnings, dividends, management and ‘Every relevant fact and circumstance which enters into the value of the corporate property and which reflects itself in the worth of corporate stock * * *(Emphasis added)

It should be here noted that the plaintiffs, as minority shareholders, voted against the proposed sale to Garfinckel because they disagreed with the division of the sale proceeds wherein they and other minority shareholders would receive $23.00 per share and the Siegel family a package of assets of worth of more than $40.00 per share. The plaintiffs had no quarrel with the sale price or terms. The trial court found these facts in No. 50 of its Findings of Fact.

It is also worthwhile to again note that the Siegel interests desired to continue the corporation under the changed name of FLM Industries as a personal holding company for tax purposes and savings and were desirous of acquiring the minority stock in order to avoid periodic expense under federal regulations, which would be incurred if the number of stockholders exceeded 100. Further, the trial court found that the offer of $23.00 per share to the minority stockholders was the only “bona fide offer” at the time. This finding is without significance in light of the fact that no market existed for the stock after the announcement of the proposed Garfinckel sale since the stock had been in effect withdrawn from the over-the-counter market by the brokers theretofore trading in it. Coupled with the fact that the defendant’s testimony was that this figure was arrived at as a result of largely altruistic reasons, renders meaningless the $23.00 offer as reflective of the “fair value” of the stock.

In light of the sale of Harzfeld’s, at a price conceded by all the parties involved, including the parties herein, to be a fair and reasonable price, the usual criteria, otherwise useful in evaluating the fair value of the stock, including Harzfeld’s business difficulties, capital situation, inventories, dividend history, book value and market value of its stock and store locations and condition fade into relative insignificance. The overriding, compelling and decisive factors vital here to the ascertainment of “fair value” for the dissenters’ stock are the terms of the Garfinckel sale considered as a whole and reduced to cash value as of March 30, 1972 and March 31, 1972 of the considerations flowing therefrom.

The minority dissenting stockholders, plaintiffs here, enjoyed certain fundamental rights as common stockholders in Harzfeld’s, which are thus generally expressed in 18 C.J.S. Corporations § 216, p. 648:

“ * * * A common stockholder is an owner of the enterprise in proportion that his stock bears to the entire stock and ordinarily he is entitled to participate in the management, profits and ultimate distribution of assets of the corporation. * * * >>

Or, as stated differently, a share of common stock is evidence of unit ownership of the whole, each unit being of equal value such that their sum equals the value of the whole. 18 C.J.S. Corporations § 515, p. 1194.

Disregarding this fundamental concept, the court below, quoting from Flarsheim, supra, as a conclusion of law held that the plaintiffs here by resorting to this action to have their shares judicially appraised “assumed the risk of receiving less than a distributive share” of the sale proceeds and that “fair value” for the plaintiffs’ share might be more or less than (they) would have received” had (they) approved the sale. This statement (and others) in Flarsheim cannot be faulted as general rules relating to minority shareholders’ rights (and risks) under Section 351.405, supra, but the factual background upon which it rests is clearly distinguishable. In Flarsheim, the principal business of Seavey-Flarsheim Brokerage was that of a food broker with principals of over 300 food producers and sales offices in 10 cities. It had little or no inventory or stock in trade although it owned considerable real estate, some of which was used for headquarters and offices. Its principal assets of interest to the purchaser, Hoosier Brokerage Company, were its customers, good will, contacts and sales and service force. The sale included all of its physical properties, good will, use of name, business records and going concern status, but excluded all non-operating assets.

The majority of the stockholders of the seller changed the name of the corporation to Twenty Five Thirty Two Broadway Corporation after the sale with the express purpose that all of the assets be liquidated and the corporation dissolved and the proceeds distributed to the shareholders over a period of approximately a year, in accordance with certain federal income tax regulations. These latter objectives were to be accomplished as a voluntary dissolution of a Missouri corporation under Section 351.465 through 351.480 RSMo 1969, which sections the defendant claimed created an immunity from Section 351.405, supra, the judicial appraisal of “fair value” remedy pursued by both the minority stockholders in Flarsheim and in the case at bar. The Court in Flar-sheim soundly rejected this claim and evidence of the fair value of the stock was offered by both sides based upon sophisticated, detailed and conflicting theories. The opinion is silent as to the purchase price paid by Hoover for the business and neither the trial court, counsel, nor the Supreme Court considered that factor.

Of course, a minority stockholder who has foregone his right to a judicial appraisal of the fair value of his stock upon a sale of the assets under Section 351.405, supra, rather than remain an owner of the new proposed operation or liquidation of the company may, in fact, ultimately receive more or less than if he had asserted his rights under the statute. But that is his free choice and a court can impose no limitations upon the exercise of that right.

Here, the trial court did impose such limitations, in that it held as a matter of law that the “fair value” of the plaintiffs’ stock was the price of $23.00 per share because such was the highest bona fide offer for their stock, an offer made by the defendant after the stock had been withdrawn from any market and the terms of the Garfinckel sale were agreed upon and needed only the affirmative vote of the majority of the stockholders who had, in fact, negotiated and espoused the agreement. This value per share of the stock was adopted by the trial court in the face of the fact that the book value of Harzfeld’s stock on January 29, 1972 was $42.42 and the projected book value following the Gar-finckel sale was $40.00 per share. This judicial limitation is repugnant to the concept of corporate democracy and the equitable principles for which the term “fair” in the statutory term “fair value” stands and constitutes a weakening and “frittering away” of minority rights which the court in Flarsheim condemned as contrary to the very intent and design of the statute.

Certainly, this Court refuses to ascribe to the Legislature any intention to permit the majority stockholders, under the facts in this case, to either fritter away any right of the minority shareholders by some imaginative rule of exclusion of evidence, read into the otherwise plain terms of the statute in the face of the existence of real and present measuring sticks leading to the goal of “fair value”, for tax, family, to conserve cash, or for any other personal reasons.

Flarsheim is deserving of one further comment. The court there held (l.c. 253[7]), that:

“The clear intention of § 351.405 is to change the status of a dissenting shareholder to that of a creditor at least superior to the distributive rights of the remaining shareholders. In 13 Fletcher Cyclopedia of Corporations, § 5898, p. 333, it is stated that: ‘The right of dissenters to payment takes precedence over the right of other stockholders to distribution’

The defendant cites a multitude of cases in its brief, each of which has been given close scrutiny, and, are found distinguishable on the facts or lacking in persuasion. Many of them deal with elaborate techniques developed in Delaware which expound means of determining the value of traded common stock where either the corporation itself has no market price or the asset sale itself (and not the proposed distribution of the proceeds) was directly challenged; others involve merger or consolidation; and, still others where the dissenters seek to establish a value for their shares in excess of their proportional interest.

The terms, conditions and value to the Harzfeld’s stockholders on March 30, 1972 and March 31, 1972 of the Garfinckel sale were the proper means for judicial appraisal of the “fair value” of the plaintiffs’ stock, were admissible, and should have been received and weighed as the overriding and relevant facts for the court’s appraisal and computation of a judgment. The court below erred in excluding any of these matters and in so doing it erroneously declared and applied the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976); Rule 73.01.

The pro rata value of the plaintiffs’ stock must be computed upon the terms of the Garfinckel purchase, i. e. 1) the cash payment of $1,000,000.00; 2) the net reasonable cash value of the Garfinckel contractual obligation to pay an additional $1,000,000.00 over the ten-year period; 3) the net reasonable cash value of the Garfinckel stock consideration; and 4) the income tax refund to Harzfeld’s flowing from the sale.

The record before this Court contains conflicting evidence as to items 2 and 3 above, which evidence was, however, excluded from consideration by the court. Under the mandate of this decision the court below must now consider and weigh such evidence and should permit the parties, if they so desire, to offer additional evidence in this limited area. The court should then make appropriate findings of fact and conclusions of law and enter a new judgment for the plaintiffs based upon the formula herein prescribed.

The judgment is therefore reversed and the cause remanded for further proceedings.

All concur.