author: FINCH, Judge. BARDGETT, Judge

text:
    The NORTHERN TRUST COMPANY et al., Plaintiffs-Appellants, v. CITY OF INDEPENDENCE, Missouri, et al., Defendants-Respondents, Chris Barker and Roy Lewis, Intervenors-Appellants.
    No. 58936.
    Supreme Court of Missouri, En Banc.
    July 2, 1975.
    Rehearing Denied Sept. 8, 1975.
    _ , „ „ , , T n j Paul Van Osdol, Jr., Guy A. Magruder, Terrell, Van Osdol & Magruder, Kansas city¡ for plaintiffs-appellants.
    B% S- SParks, Kansas City, for defendants-respondents; James S. Cottingham, city Counsellor, Independence, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, of counsel.

      John E. Park and John C. Craft, Kansas City, for Chris A. Barker and Roy Lewis.
   FINCH, Judge.

This is a declaratory judgment action wherein plaintiffs, after purchasing and paying for bonds issued by the City of Independence, sought a declaration that the bonds were invalid and that plaintiffs should recover damages, including the purchase price paid for the bonds. Two taxpayers, owners of property in Independence, were allowed to intervene as representatives of a class. They attacked the validity of the bonds on constitutional grounds. The trial court held the bonds valid and plaintiffs and intervenors appealed. We conclude that we have jurisdiction because construction of § 26, art. VI of the Missouri Constitution, V.A.M.S. is involved.

The pertinent events preceding issuance of the bonds were as follows:

The city council of Independence adopted on August 6, 1973, an ordinance which imposed a one-cent sales tax, effective January 1,1974, and provided that “all such tax received by the City of Independence shall be placed in the General Funds for payment for Principal of and Interest on general obligation bonds to be issued by the City or for general municipal expenses and uses.” That ordinance was subject to voter approval and was submitted at a special election held on October 9, 1973. The voters approved a sales tax ordinance by a majority vote, but at that same election six general obligation bond propositions failed to receive the required two-thirds favorable vote.

The Independence City Council met on October 15, 1973, at which time a bill calling a special election on December 11,1973, to vote again on the same six bond propositions was introduced and given first reading. The Council minutes then state:

“The time limits were checked, discussed and the necessity for an emergency were considered. Councilmen Lamb and Bon-ville made a motion the bill be made an emergency for the welfare of the publie and to insure sufficient time for election requirements. Upon vote, motion carried.”

The bill was then renumbered, given its first and second readings, and passed by the council as an emergency measure at that meeting. Sec. 8 of that ordinance reads as follows:

“SECTION 8. That this Ordinance in the judgment of the Council is deemed to be one of an urgent nature and that its immediate passage is necessary for the preservation of the public peace, health, safety and welfare and should become effective immediately upon the date of its passage to insure that the Jackson County Board of Election Commissioners has sufficient time to accomplish the required advertisements and prepare the absentee ballots as required by law prior to December 11, 1973 General Obligation Bond Election.”

The ordinance calling the December 11 election provided for the form of the ballot. The bond propositions were to be presented to the voters in the same language used on the October 9, ballot, viz:

“SHALL THE FOLLOWING BE ADOPTED:
“Proposition to issue general obligation bonds in the amount of [stating the amount] for the purpose of [stating the purpose].”

The “Instructions to Voters” section of the ballot was the same as on the October 9 ballot plus this additional sentence:

“These general obligation bonds will be payable first from the City-wide sales tax approved by the voters on October 9, 1973.”

At a meeting on November 5, 1973, the Council adopted an additional ordinance which rearranged the order of the bond propositions on the December 11 ballot. It was read and passed as an emergency measure, containing essentially the same lan-gtiage as the October 15 ordinance with reference to the need and reason for passage as an emergency measure.

At the December 11,19TB special election the propositions for $13,920,000 of street improvement bonds and $500,000 of fire station bonds were approved by more than two-thirds of the votes cast. The other four bond propositions did not receive the required two-thirds majority.

On January 7, 1974, the city council approved a Notice of Bond Sale for the $14,-420,000 of bonds approved by the voters. The notice described the bonds as follows:

“Said bonds will constitute general obligations of said City, payable both as to principal and interest from ad valorem taxes which may be levied without limitation as to rate or amount upon all taxable tangible property within the territorial limits of said City, provided, however, interest and principal of the said Bonds will first be payable from the proceeds of a City-wide one cent (l<p) sales tax approved by the voters of said City on October 9, 1973.”

The notice also stated that the bonds would be sold subject to the legal opinion of the law firm of Linde, Thomson, Van Dyke, Fairchild & Langworthy of Kansas City, Missouri (hereinafter Linde, Thomson).

On January 21,1974, the council amended the sales tax ordinance so as to change the effective date from January 1 to April 1, 1974. The ordinance provided that sales taxes collected “shall be placed in the General Fund for payment of principal of and interest on General Obligation Bonds to be issued by the City or for general municipal purposes.”

Bids for the bonds were opened on February 14, 1974. Plaintiffs (a syndicate consisting of two banks and thirteen other firms, all of whom deal in municipal bonds) submitted the bid which the city council accepted. Thereafter, on March 4,1974, the council by ordinance authorized issuance of the bonds. In Sec. 9 of the ordinance, it was stated that a tax was levied on all of the taxable tangible property in the City sufficient to produce enough revenue to pay the principal and interest falling due under the bonds, with a proviso that said indicated sums would be levied only to the extent that the sales tax proceeds are insufficient in any year to pay the interest and principal of the bonds. Sec. 10 of the Ordinance provided that the property taxes above levied, “if such levy becomes necessary due to the insufficiency of the sales tax proceeds,” should be extended on the tax rolls and levied and collected at the same time and in the same manner as other city taxes and should be used to pay the bonds.

Plaintiffs agreed among themselves that if their bid was accepted they would ask the law firm of Stinson, Mag, Thomson, McEv-ers & Fizzell of Kansas City (hereinafter Stinson, Mag) to provide another legal opinion on the validity of the bonds in order to make them marketable nationally. At plaintiffs’ request, Linde, Thomson on March 18 or 19, 1974, delivered a copy of the bond transcript (the record, prepared by bond counsel, of all the proceedings that led up to and involved the bond issue) to Stin-son, Mag for that purpose.

On March 21, 1974, a member of Stinson, Mag advised Linde, Thomson that it would be unable to render an opinion on the validity of the bonds, absent a decision thereon by a Missouri appellate court. His expressed reasons generally were the possible misleading of the voters by the December 11 ballot, the question of whether or not the city had the ability to pledge the sales tax proceeds to pay the bonds and, if it had such authority, whether it had effectively accomplished that pledge.

After learning of Stinson, Mag’s position, Northern Trust Company, manager for plaintiffs, contacted Linde, Thomson which reiterated its position that the bonds were valid and that it stood ready to give its opinion so stating as .required in the bond offering. Thereupon, Northern Trust advised Linde, Thomson that they were going to bring the matter to the attention of the State Auditor who, under the provisions of § 108.240 (all statutory references are to RSMo 1969, Y.A.M.S.), is to register all such bonds prior to negotiation.

Northern Trust did contact Mr. Ashcroft, then State Auditor, explaining the positions of Linde, Thomson and Stinson, Mag. Mr. Ashcroft advised that he was going to take the bond transcript to the law firm of Charles & Trauernicht of St. Louis, another firm which had been in the municipal bond field for many years and was well known nationally. The parties agreed to delay closing from March 27 to March 29 to give the auditor additional time. Mr. Trauer-nicht then examined the bond transcript and wrote Ashcroft a letter expressing his views in which he expressed the same reservations advanced by Stinson, Mag, plus others.

On March 29, 1974, Mr. Ashcroft flew to Chicago, Illinois, with Mr. Kohn of Linde, Thomson and with the Independence Finance Director for the purpose of signing the bonds. En route Mr. Ashcroft discussed with Kohn the questions raised by Trauer-nicht but did not show him the letter. In Chicago they met with representatives of plaintiffs who inquired of Mr. Ashcroft as to what Charles & Trauernicht said about the bonds. Mr. Ashcroft stated that they had raised questions, some of which were the same as those advanced by Stinson, Mag, but that he had considered the questions and had concluded that it was his duty to sign the bonds. He then proceeded to do so. The bonds, the bond transcript, the Linde, Thomson opinion and the final delivery certificate were delivered to representatives of plaintiffs who paid the purchase price in accordance with their bid.

Following receipt of the bonds, a representative of plaintiffs stated that they still were desirous of obtaining a second opinion on the bonds and inquired of Mr. Ashcroft whether they should go to Charles & Trauernicht for such opinion. Mr. Ashcroft replied that he did not think that Charles & Trauernicht would give an opinion that the bonds were valid.

Many of the bonds had been sold by plaintiffs on a “when issued” basis prior to March 29, 1974, most of them on condition that a second legal opinion would be furnished. When that opinion was not obtainable from Stinson, Mag or Charles & Trauernieht, plaintiffs concluded not to proceed with sale of the bonds pending determination of their validity by the courts. This suit was then filed. It was tried to the court without a jury, the issue of damages being reserved for a subsequent separate trial if the court should find the bonds invalid and plaintiffs entitled to a recision.

On December 18, 1974, the trial court entered judgment in favor of defendants. It held the bonds to be valid and enforceable general obligation bonds, to the payment of which the City also had pledged revenues to be derived from the city-wide l<t sales tax. Detailed findings of fact and conclusions of law were made.

In the trial court and on appeal, appellants have asserted numerous grounds for holding the bonds invalid. Before considering those assignments, we must take cognizance of the fact that this is not a case which preceded registration of the bonds. In fact, there was no such litigation instituted. Instead, plaintiffs, with full knowledge of all proceedings to authorize the bonds as disclosed in the bond transcript, made payment for the bonds and without asserting any conditions or reservations, accepted delivery thereof following registration by the state auditor. This fact is significant because § 108.240 (text given in footnote 2, supra) specifically restricts the availability of defenses which may be asserted against validity of the bonds after registration to forgery, fraud, or violations of constitutional restrictions or limitation. Accordingly, we limit our consideration to those issues raised by appellants which fall within one of these areas specified in § 108.-240.

The first such issue, and the principal basis for relief asserted by appellants, is that the bonds in question were not authorized by or issued in conformity with applicable constitutional provisions and that for this reason the bonds were invalid. General reference is made in this assignment to §§ 26(a) through 26(f), art. VI, Mo.Const., but the subsections specifically mentioned and discussed by appellants are subsections 26(a), (b), and (f), which provide as follows:

“Section 26(a). No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.
“Section 26(b). Any county, city, incorporated town or village or other political corporation or subdivision of the state, by vote of two-thirds of the qualified electors thereof voting thereon, may become indebted in an amount not to exceed five per cent of the value of taxable tangible property therein as shown by the last completed assessment for state or county purposes, except that a school district by a vote of two-thirds of the qualified electors voting thereon may become indebted in an amount not to exceed ten per cent of the value of such taxable tangible property.
“Section 26(f). Before incurring any indebtedness every county, city, incorporated town or village, school district, or other political corporation or subdivision of the state shall provide for the collection of an annual tax on all taxable tangible property therein sufficient to pay the interest and principal of the indebtedness as they fall due, and to retire the same within twenty years from the date contracted.”

There is no question but that the $14,420,000 of indebtedness represented by the bonds in question would be violative of § 26(a) if not authorized in accordance with other constitutional provisions. Thus, the first question which we must consider is whether the issuance of these bonds was authorized under § 26(b). This depends on whether the people approved and the City has issued general obligation bonds. If they did, the bonds (and the indebtedness they represent) were authorized in accordance with § 26(b) and are valid, there being no contention that the amount thereof exceeds the máximums specified in § 26(b). Approval of general obligation bonds by a two-thirds vote in accordance with § 26(b) includes approval of an ad valorem tax to pay the same as required under § 26(f). State ex rel. Consolidated School District No. 8 v. Smith, 343 Mo. 288, 121 S.W.2d 160 (banc 1938); State ex rel. Gilpin v. Smith, 339 Mo. 194, 96 S.W.2d 40 (banc 1936); State ex rel. Emerson v. Allison, 334 Mo. 542, 66 S.W.2d 547 (1933); State ex rel. Audrain County v. Hackman, 275 Mo. 534, 205 S.W. 12 (banc 1918).

Appellants contend that the bonds in question are not general obligation bonds but are limited obligation bonds in that they are payable primarily from sales tax receipts and only secondarily from ad valo-rem taxes. As such, say appellants, the bonds do not comply with the requirements of §§ 26(a), 26(b) and 26(f) for the reason that the people of Independence have not by a two-thirds vote pledged the sales tax proceeds to payment of these bonds and have approved the imposition of- an ad valo-rem tax only in the event sales tax proceeds are insufficient to retire the bonds. In making these contentions, appellants rely primarily on the cases of New Liberty Medical & Hospital Corp. v. E. F. Hutton & Co., 474 S.W.2d 1 (Mo. banc 1974), Scroggs v. Kansas City, 499 S.W.2d 500 (Mo.1973) and Wunderlich v. City of St. Louis, 511 S.W.2d 753 (Mo. banc 1974).

New Liberty is not applicable. There the hospital district proposed to build a new hospital by issuing 30 year debentures without any authorization by vote of the people. We held bad a lease arrangement whereby the hospital district, without any approval by the voters, unconditionally agreed to retire said bonds by paying for 30 years whatever rentals were necessary for that purpose. We concluded that this constituted an assumption of an indebtedness without voter approval in violation of § 26, art. VI, of the Missouri Constitution.

Scroggs involved a different factual situation but it likewise does not govern. In that case Kansas City Public Building Authority, a not-for-profit corporation, proposed to sell 30 year bonds in the amount of $25,000,000, using the proceeds to build and finance a convention center facility in Kansas City on land leased from the city. No provision for voter approval of these bonds was made. The Authority contracted to sublease the ground and all facilities to Kansas City for the sum of $54,931,379.38 which the city proposed to pay from revenue derived from new license taxes on the business of hotels, motels and restaurants and on the sale of cigarettes. In the lease the city agreed to maintain the convention center fund from which the bonds were to be retired for the full term of the lease, agreeing to continue the payment of rentals in accordance with the lease in all events even if the facility should be damaged or destroyed. We held that under New Liberty the city was assuming an indebtedness payable in all events without voter approval in violation of § 26 of art. VI of the Missouri Constitution.

In Wunderlich we considered an arrangement devised by the City of St. Louis to finance a convention center. The city submitted to the voters a proposal to issue “revenue and supported bonds” in the amount of $25,000,000 for the purpose of acquiring land and constructing thereon a convention center. The proposition submitted to the voters detailed a proposal which included a plan whereby operation and maintenance of the center were to be paid out of general revenue of the city, with debt service and reserve requirements for the bonds to be paid from the gross receipts derived from the operation of the center plus receipts of a convention and tourism tax and of the merchants’ and manufacturers’ tax. We held that the bonds were erroneously designated as revenue bonds and that, in fact, they were in the nature of limited obligation bonds. However, we held the bonds valid on the basis that the voters by a two-thirds vote had approved both the issuance of these bonds and the funding thereof from enumerated taxes. In response to the contention that these enumerated taxes could be repealed during the life of the bonds, we held to the contrary on the basis that the entire proposal had been approved by a two-thirds vote of the people and that if such a question arose, it could be resolved by mandamus.

If, as the appellants contend, the bonds in this case are something akin to the limited obligation bonds involved in Wun-derlich (in that they are payable first from the sales tax), we would be compelled to hold the bonds invalid because the voters in this case have not approved by a two-thirds vote a proposition for the issuance of bonds specifically payable by a pledge of a designated tax (here the city sales tax) for the life of the bonds. Wunderlich requires voter approval by a two-thirds majority as a condition to the irrevocable commitment of a particular tax to the retirement of bonds payable in whole or in part therefrom. However, we have concluded that the bonds authorized were general obligation bonds. The propositions submitted to and approved by a two-thirds vote were a “[pjroposition to issue general obligation bonds in the amount of Thirteen Million Nine Hundred Twenty Thousand Dollars ($13,920,000.00) for the purpose of acquiring rights-of-way, constructing, extending, repairing and improving streets, bridges and related storm drainage facilities, including but not limited to Sterling Avenue from U.S. Highway 24 to U.S. Highway 40, Lee’s Summit-Kiger Road from U.S. Highway 24 to U.S. Highway 40, Crysler Avenue from 23rd Street north to Truman Road and other improvements” and a “[pjroposition to issue general obligation bonds in the amount of Five Hundred Thousand Dollars ($500,000.00) for the purpose of acquiring sites for, erecting and furnishing fire stations.” These were simple, clear-cut proposals for the issuance of general obligation bonds in specified amounts for particular purposes. They were approved by a two-thirds vote of the people. The fact that in the instructions to voters there was a statement that proceeds of the sales tax approved October 9, 1973, would be utilized to retire the bonds did not change the specific proposition voted upon and approved by the people, namely, whether to issue general obligation bonds.

It is true, as appellants contend, that the voters have not pledged the proceeds of the sales tax to the retirement of these bonds. The imposition of the sales tax was approved at a different election on October 9, 1973. The proceeds thereof were not pledged in that election to payment of bonds not even authorized until December. Nor did the voters in the subsequent December 11,1973 election vote upon a pledge of the proceeds from the sales tax. That issue was not submitted to the voters in that election. The only pledge of the sales tax has been by action of the city council by ordinance. It was permissible for the city council to devote proceeds from the sales tax to service these bonds, just as it might utilize other available uncommitted funds for that purpose. However, this council or any subsequent council could repeal or alter that ordinance, at any time, and if it did so, it would not be violating any mandate of the people resulting from either the October 9,1973, or December 11,1973 elections.

If these bonds were dependent, as in Wunderlich, upon this special tax and a pledge of the proceeds thereof, approval of the tax and the pledge thereof by a two-thirds majority at an election for that purpose would be essential to the validity of these bonds, but the bonds are not dependent thereon. Instead, they are general obligation bonds and, consequently, they are not invalid under the Wunderlich decision. Accordingly, we hold that the city in the issuance of these bonds has not violated the provisions of § 26, art. VI of the Missouri Constitution and that the bonds are not invalid on the basis of constitutional objections.

Next, appellants assert that the bonds are invalid for the reason that the voters were not afforded a fair and free opportunity to express their will because the ballot was misleading and deceptive and the voters were or could have been misled by the wording of the notice of election and the ballot. This contention is based upon inclusion in the instructions to voters of the language about use of the sales tax proceeds to retire the bonds. There may be some question as to whether this issue constitutes a claim of fraud which is one of the defenses made available after registration of the bonds pursuant to § 108.240. However, since this relates somewhat to the constitutional issues raised, we will consider the question.

The trial court with reference to this issue said:

“The voters of the City of Independence were not misled by the notice to voters calling for the election on said bonds; or by the instructions to voters at the election on December 11, 1973. Said notice and instructions did not imply that ad valorem property taxes would not be levied by the City of Independence to pay the principal and interest on the said bonds, and the instructions and the notice did not imply that the city-wide sales tax would be in existence for any definite or specified period of time.”

We agree with the trial court’s finding. This is not to say that we express approval of the practice utilized herein of adding language in the instructions to voters on the ballot such as “these general obligation bonds will be payable first from the city-wide sales tax approved by the voters on October 9,1973.” Such or similar language should not be inserted in instructions to the voters. It has no place therein and political subdivisions would be well advised not to follow such practice in the future. We have concluded, however, that the proposition submitted and voted on by the voters was clear and that the sentence in the instructions to voters with reference to utilization of the sales tax to retire these “general obligation bonds” did not mislead them or cause them to approve bonds which otherwise they might have rejected. In that connection we note that in the December 11, 1973 election there were six bond proposals voted upon, as to all of which these same instructions to voters applied. The voters rejected four of the six proposals. This does not indicate that the approval of two of the issues was on the basis of the sentence inserted in the instructions to voters. We overrule the contention that the bonds are invalid on the basis that the voters were misled by the language inserted in the instructions to voters.

Appellants assert various other grounds as a basis for holding the bonds invalid. These include claims (1) that the bonds are not authorized by the city charter; (2) that the bonds were not adopted in conformity with city charter provisions with respect to emergency ordinances in that there was no emergency and there were no proper recitals or showing of an emergency; (3) that the ballot was not in substantial conformity with the applicable statute; (4) that the delivery certificate was untrue in certifying that no controversy or litigation (threatened or pending) involved any question about the legality of the bonds; and (5) that the city in issuing the bonds had violated § 77q of Title XIV, U.S.C.A. (and its Missouri counterpart, § 409.411). None of these assignments, except possibly the last two, relate to defenses which are available after registration under the provisions of § 108.240. They should have been raised and litigated before registration if any of the parties desired to rely thereon. We cannot consider them now. Possibly, the claims that the delivery certificate was untrue and that § 77q of Title XIV, U.S.C.A. was violated, could be characterized as claims of fraud. In any event there is no merit thereto. The city furnished plaintiffs a copy of the bond transcript which included all of the proceedings involved in the authorization of the bonds. It disclosed the instructions to voters on the ballot, the fact that the voters did not vote on whether to pledge the sales tax proceeds to retirement of these bonds and that the only pledge of such tax was by an ordinance passed by the city council. No fraud was shown.

We hold that the bonds are valid and the trial court correctly so held. However, it appears that some of the findings and conclusions entered may not be entirely consistent with what we have said herein. Accordingly, we reverse and remand with directions to enter findings, conclusions and judgment consistent with the views herein expressed.

SEILER, C. J., and MORGAN, HOLMAN, HENLEY and DONNELLY, JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

BARDGETT, Judge

(concurring).

I concur in the opinion of Finch, J., and file this concurring opinion to re-emphasize disapproval of the language on the ballot, to wit: “These general obligation bonds will be payable first from a city-wide sales tax approved by the voters on October 9, 1973.”

This language is nothing more than an argument which was probably used by the proponents in this bond election to persuade the people to vote for the bond issue. As such it should not have been on the ballot at all. The quoted statement could well have been understood by the voters to mean that ad valorem property taxes would not be available to retire the bonds.

However, I am willing to defer to the trial court’s finding and the view expressed in the majority opinion that, in this case, the quoted language did not, in fact, deceive the voters, although I entertain substantial doubt on that question.

The passage of a general obligation bond issue by the voters constitutes an irrevocable commitment to subject their property to additional taxation over a substantial period of time. As such it is a matter of great importance to them. When the language on the ballot distracts the voter away from the proposition itself, and arguably leads the voter to think that a specific tax — sales tax — will be the source of the revenue to be used for bond retirement, the voter may well believe that other sources — ad valorem property taxes — will not be available for retirement of the bonds.

In my opinion, the voter is entitled to know, from the ballot itself, that the bonds are general obligation bonds, the purpose and amount of the bonds, and the identity of the governmental entity which will issue them. The ballot must be a neutral instrument and not contain propaganda or arguments pro or con.

As stated supra, I concur in the opinion in this case but this does not mean that in future cases I would vote to approve similar language on general, obligation bond issue ballots.

      . Stinson, Mag had been in the municipal bond field for a much longer time than Linde, Thomson and were better known nationally.

      . Sec. 108.240 provides as follows:
      “Before any bond, hereafter issued by any county, township, city, town, village or school district or special road district by virtue of the provisions of chapters 243, 245, 248, and sections 242.010 to 242.690, RSMo, for any purpose whatever, shall obtain validity or be negotiated, such bonds shall first be presented to the state auditor, who shall register the same in a book or books, provided for that purpose, in the same manner as state bonds are now registered, and who shall certify by indorsement of such bond that all conditions of the laws have been complied with in its issue, if that be the case, and also that the conditions of the contract, under which they were ordered to be issued, have also been complied with and the evidence of that fact shall be filed and preserved by the auditor. Such bonds after receiving the said certificate of the auditor as herein provided, shall thereafter be held in every action, suit or proceeding in which their validity is, or may be, brought into question, prima facie, valid and binding obligations, and in every action brought to enforce collection of such bonds, the certificate of such auditor, or a duly certified copy thereof, shall be admitted and received in evidence of the validity of such bonds, together with the coupons thereto attached; provided, the only defense which can be offered against the validity of such bonds shall be for forgery or fraud. But this section shall not be construed to give validity to any such bonds as may be issued in excess of the limit fixed by the constitution, or contrary to its provisions, but all such bonds shall, to the extent of such excess, be held void; and provided further, that the remedy of injunction shall also lie at the instance of any taxpayer of the respective city, town, village, township or school district to prevent the registration of any bonds, alleged to be illegally issued or funded under any of the provisions of sections 108.240 to 108.300.”

      . At time of trial all but $85,000 of the bonds were in the hands of members of the syndicate, either by reason of cancelled sales, repurchase or refusal of purchaser to accept delivery.

      . There was no suit by taxpayers to enjoin registration of the bonds as authorized by the proviso at the end of § 108.240. See footnote 2, supra. Plaintiffs brought no action prior to registration and purchase to determine validity of the proceedings and of the bonds to be issued pursuant thereto. On occasion, when questions as to the validity of a proposed bond issue arises, the state auditor declines to register them and validity of the bonds is determined in a proceeding in mandamus to compel registration, but that did not occur in this instance.

      . See Lewis W. Thompson & Co. v. Conran-Gideon Special Road Dist., 323 Mo. 953, 19 S.W.2d 1049 (1929); 64 C.J.S. Municipal Corporations § 1949. The Texas courts have construed the purpose of a nearly identical statute as enhancing marketability of municipal bonds. City of Belton v. Harris T. & S. Bank, 273 S.W. 914, 922 (Tex.Civ.App.1925); Simpson v. City of Nacogdoches, 152 S.W. 858, 861 (Tex.Civ.App.1912).

      . What was done here differs from what this court approved in City of Raytown v. Kemp, 349 S.W.2d 363 (Mo. banc 1961), wherein the proposal to levy special assessments in connection with the sewer to be constructed with proceeds of the general obligation bonds was included in the proposition submitted to the voters for approval.

      . Plaintiffs complain that they were not shown the Charles & Trauemicht letter. However, this was obtained by the state auditor, not the city, and was in his possession. Representatives of the city had not seen it. The auditor told representatives of plaintiffs that Charles & Trauemicht had raised some questions about the bonds but he had decided to sign them. If plaintiffs had wanted more information, they could have asked the auditor therefor. The city did not have the letter and had not seen the letter.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mary Lou ROCHA, Defendant-Appellant.
    No. 36051.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 3, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Kent E. Karohl, Thomas P. Howe, David M. Korum, Kirkwood, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Clarence Thomas, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Arthur Friedman, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Mary Lou Rocha was convicted of first degree murder (§ 559.010, RSMo 1969, V.A.M.S.) for the murder of her husband and sentenced to life imprisonment. Defendant has appealed her conviction.

Evidence revealed the following: On the morning of May 23, 1973 Juan Rocha, defendant’s husband, was found dead on the front porch of his home in the City of St. Louis. A pool of dried blood was found beneath the body. An autopsy revealed that death was caused by a shotgun wound to the lung and pulmonary artery. No. 6 shot were removed from the body.

The defendant was questioned by police within a week of her husband’s death. At police headquarters defendant made a video-tape statement which was introduced as evidence at trial. This statement revealed that defendant had wanted her husband killed for some time. Family quarrels, difficulties, and mistreatment constituted the main reasons for this wish. Some six months before the murder, defendant approached her son-in-law, George Waller, and asked him to kill her husband. Waller refused because he did not want his family to find out that he had murdered his father-in-law. But defendant persisted in these requests and Waller then told defendant that although he would not kill her husband, he knew someone who would.

Defendant met this person, Willie Earl Little, at Waller’s home on May 19, 1978. Little agreed at this time to kill Juan Rocha for $250.00 or $300.00 She told him she could not pay him all at once because she did not have that kind of money. But she did want him killed and left the manner in which he was to be killed up to Little.

Later that same day defendant met Waller and Little. Defendant was told by Little it would cost her $45.00 to obtain the “thing” that he needed to kill Rocha. She paid him the $45.00 within an hour thereafter.

Defendant, her daughter, Waller and Little attended a carnival on May 22, the night before Rocha’s body was discovered. Defendant came home at about 11:00 p. m. after the carnival. She then received a call from Little a short while later in which he told her “ ‘It will happen * * * shortly’ ”. Defendant then went to bed. The next morning about 6:30 a. m. she discovered her husband’s body on the front porch. He had been shot with a shotgun in the chest.

Defendant raises a number of issues on appeal. Since several of these question the sufficiency of the evidence, we will consider them together. Defendant argues that the trial court erred by failing to sustain her motions for judgment of acquittal made at the close of the state’s case and at the close of all the evidence because the state failed to make a submissible case. Defendant further urges that the trial court erred by submitting two instructions to the jury because the evidence failed to support their submission.

In order to determine whether a submissible case was made, we consider the evidence in the light most favorable to the state. All inferences reasonably to be drawn from the evidence must be considered in this same light, and any inferences to the contrary must be disregarded. State v. Stubenrauch, 503 S.W.2d 136, 138[6] (Mo.App.1973). Defendant specifically argues that insufficient circumstantial evidence was adduced to make a submissi-ble case against her and to support her conviction. Where the state relies on circumstantial evidence alone, the law is well-settled that the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant’s guilt but must be inconsistent with every other reasonable hypothesis, including that of innocence. State v. Irby, 423 S.W.2d 800, 802[2] (Mo.1968). But this rule is applicable only where the evidence of defendant’s agency in connection with the crime is entirely circumstantial. State v. McClure, 504 S.W.2d 664, 667[1] (Mo.App.1974). Admissions by the accused are direct evidence of his guilt. State v. Stevens, 467 S.W.2d 10, 25[24] (Mo.1971); State v. Little, 501 S.W.2d 562, 563[4] (Mo.App.1973). By reason of defendant’s video-taped admissions, this is not a case based upon circumstantial evidence alone.

In order to sustain her contention that the state failed to make a submissible case, defendant enumerates many facts which the state failed to prove. Among these, defendant argues that no evidence was presented to show that Juan Rocha was alive at any time on May 23, 1973, that no evidence showed the time of his death, or the place of the assault on him. Further, defendant urges that there was no showing that George Waller or Willie Little or defendant ever purchased a shotgun or other weapon, or that any of them assaulted Juan Rocha, as charged in the indictment.

We agree with defendant that direct evidence on these facts was not introduced at trial. However, we must determine on this appeal whether the evidence which was presented and the logical inferences therefrom were sufficient to make a case for the jury. The particular facts and circumstances of each individual case must be considered when the sufficiency of the evidence is challenged. Here, defendant wanted her husband dead. She asked George Waller to kill him. She hired Willie Little to do so. She paid $45.00 to be used to purchase an instrumentality or weapon. Willie Little told defendant on the night of May 22, 1973 that it would happen shortly. The following morning Juan Rocha was found dead from a shotgun wound. In substance, defendant, wishing her husband’s death, put into operation a scheme to achieve this end, and Juan Rocha was found murdered shortly after defendant’s plan was conceived and the chain of events initiated.

We find on this record sufficient direct and circumstantial evidence to make a submissible case. An inference could be drawn by the jury that defendant’s husband was killed according to plan. The facts introduced thus produce an unbroken chain of direct and circumstantial evidence. Although no evidence was introduced as to the time of Rocha’s death, the jury properly could infer that Rocha was killed sometime before 6:30 a. m. on May 23, 1973, since he was found dead in a pool of blood at that time, and Little had called defendant sometime after 11:00 p. m. the night of May 22. While there was no direct evidence as to who carried out the assault on Rocha, a jury could likewise infer that Little carried out his promise to kill Rocha after making the phone call to defendant. For an analogous case in which a murder scheme was conceived, was intended to be implemented in a certain manner, and in which the intended victim died according to plan, but in which there was no evidence that the fatal poison had actually been administered by a co-conspirator, see State v. Deyo, 358 S.W.2d 816 (Mo.1962). In a case like this before us, the evidence presented does not have to exclude every possible hypothesis other than guilt. A trial judge does not have to- sustain a motion for judgment of acquittal whenever in his opinion the evidence has not ruled out all hypotheses but guilt; such court action would invade the province of the jury. Therefore, mere existence of other possible hypotheses is not sufficient to remove a case from a jury’s consideration. State v. Thomas, 452 S.W.2d 160, 162[3] (Mo.1970). Contrary to defendant’s arguments, we do not find that the jury had to resort to speculation, conjecture, or surmise to reach its verdict. Thus, the trial court did not err by denying defendant’s motion for judgment of acquittal, nor by submitting the two instructions, one on circumstantial evidence and the other directing the verdict because of the insufficiency of the evidence.

Defendant further contends that the court erred by denying her motion for judgment of acquittal because the state did not prove that the alleged crime occurred within the trial court’s jurisdiction; i. e., the City of St. Louis. Defendant thereby concludes that she did not have the benefit of proper venue in her trial. She claims that her right to proper venue guaranteed by Article I, § 18(a) of the Missouri Constitution and § 541.033, RSMo 1969, V.A.M.S., was violated. This contention is related to those in which defendant urged insufficient evidence to support her conviction or to make a submissible case. What we hold in regard to those issues is equally applicable here. In a criminal case venue may be established if the jury reasonably could find from the facte and circumstances introduced into evidence that the crime with which a defendant has been charged occurred within the trial court’s jurisdiction. State v. Bradford, 462 S.W.2d 664, 671[6] (Mo.1971). From the evidence adduced in the case before us, we find that the jury properly could infer that defendant’s husband was assaulted in the City of St. Louis. Rocha’s body was found in a pool of dried blood on the front porch of his home at 2211 St. Louis Avenue, St. Louis, Missouri. When the body was found, it was cold and the police officers at the scene could detect no pulse. There were no facts present to indicate that Rocha had been shot elsewhere and taken to his home; neither was there any indication that he had managed to transport himself to his home after being shot elsewhere. Defendant, however, argues that the above mentioned facts are possibilities and the state did not prove that such circumstances had not occurred. While these are possibilities since there was no direct evidence to dismiss them completely, we conclude from the evidence presented that a proper inference could be drawn that Rocha was assaulted in front of his home. Venue does not have to be proven beyond a reasonable doubt. State v. Bradford, supra at 671[6]. The trial court did not err by failing to sustain defendant’s motions for judgment of acquittal because the state did not prove the assault had occurred within the trial court’s jurisdiction.

Defendant next contends that the court erred by failing to grant a new trial because a statement (oral and then transcribed) made by defendant was not produced pursuant to a pre-trial order. This statement had been taken and then apparently destroyed after the video-tape statement was made. Since no motion for a mistrial was made when the situation involving the challenged statement arose at trial, this point may be reviewed only under the “plain error” doctrine. Rule 27.20(c), V.A.M.R. This rule mandates that the error be such that a manifest injustice has resulted or a miscarriage of justice has occurred. From our review of the record we do not find these elements present.

Defendant submits in another point that the trial court erred by failing to grant her motions for a mistrial and for a new trial because the court improperly permitted testimony that Willie Little and George Waller had been arrested. Defendant claims the admission of this testimony was prejudicial, immaterial, and hearsay, since there was no evidence that either Little or Waller committed any criminal act involving her.

Defendant relies on State v. Chernick, 278 S.W.2d 741 (Mo.1955) to sustain her contention. The Chernick case involved a factual setting wherein the assistant circuit attorney was permitted to testify that he had ordered defendant’s arrest after obtaining information from a hospitalized third party. On appeal, this testimony was declared hearsay, and a new trial was ordered. See State v. Chernick, supra at 747[4],

This case is distinguishable from the Chernick situation. In situations involving accomplices or co-conspirators to a crime, the general principle is that the arrest of other accomplices or conspirators and the circumstances surrounding such arrests are admissible evidence against another accomplice or co-conspirator. State v. Shields, 391 S.W.2d 909, 912[1] (Mo.1965); State v. Johnson, 286 S.W.2d 787, 792[9] (Mo.1956).

As her final contention, defendant challenges the submission of Instruction No. 3 to the jury. She argues that this instruction was submitted erroneously because it authorized a finding of guilty if Juan Rocha died on May 23, 1973, which date was prior to that charged in the indictment, May 27, 1973. Admittedly there is a variance here between the indictment and the instruction as to the date of Rocha’s death. However, defendant was aware that her husband was dead on May 23 because she had discovered his body. Thus, she could not have been misled as to the crime with which she was charged by the indictment. Further, all evidence introduced at trial established that Juan Rocha was dead on May 23, 1973. Minor variations between an indictment and proof, such as clerical errors as to time or place, are not fatal errors requiring a new trial unless time is of the essence of the offense. State v. Payne, 452 S.W.2d 805, 809[12] (Mo.1970). We find no prejudice to defendant under these facts, and defendant’s allegations to the contrary are without merit.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: RENDLEN, Judge.

text:
    Carl F. DUDLEY, Plaintiff-Respondent, v. John T. DUMONT, Jr., Defendant-Appellant.
    No. 35351.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 1, 1975.
    Motion for Rehearing or Transfer to Supreme Court En Banc Denied Aug. 7, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Jack B. Schiff, Clayton, for defendant-appellant.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant appeals from a judgment entered pursuant to a jury’s verdict awarding plaintiff $1,080 actual and $4,500 punitive damages for fraud. Plaintiff charged that defendant individually or by his agent Ken Gainey intentionally misrepresented the effective date of an automobile liability insurance policy and relying on that misrepresentation, plaintiff purchased insurance coverage which was in fact not effective on the date he was led to believe. Plaintiff’s auto was involved in a collision prior to the date a policy of insurance was ultimately issued, and thus uninsured, he personally responded in damages to a claim arising from that collision. Defendant’s contention that plaintiff failed to make a submissible case on the issue of liability requires a detailed factual review.

Desiring to obtain automobile liability insurance, plaintiff and his son went to a State Farm Insurance agency on December 20, 1965, in Overland, Missouri, and there spoke with the State Farm agent, Ken Gai-ney. During this meeting Gainey placed a telephone call but the record does not tell us whom he called or the subject of the conversation. Though plaintiff in his brief states the phone call was “to defendant”, the evidence fails to justify this statement. The only evidence on this was defendant’s testimony that he did not talk with Gainey on that date regarding plaintiff or any insurance desired by him, and further, defendant had never heard of, talked with or had business with plaintiff on December 20 or prior thereto. Plaintiff admitted he had no conversation with defendant on December 20 nor at any earlier time. Plaintiff gave Gainey his personal check dated December 20, 1965, in the amount of $131.50 payable to the Dumont Insurance Agency; then Gainey took a blank printed receipt form from his desk drawer, filled it out and gave a copy to plaintiff. The instrument states it is a receipt to Carl F. Dudley for payment of $131.50, with the words “For Liab 10/20/5 on 56 Ply. — Effective date 12/20/65”. The handwritten name John T. Dumont appears on the form but no testimony was offered that this was defendant’s signature; defendant, on the contrary, testified it was not. The form also bore the printed words “John T. Dumont, Jr., Insurance”. No further proof appears regarding the receipt or its execution. Plaintiff conceded that defendant at no time told him a policy of insurance was in effect as of December 20, 1965.

Plaintiff’s son was involved in an automobile accident December 28 which plaintiff reported by phone to someone other than defendant at the Dumont Agency on December 26 and requested claim forms. Defendant admitted that during his absence a phone call was received by an employee in his office from someone named Dudley who said “he was a policy holder of my agency”, but the caller did not know which company, what policy or any information about it. A perusal of the office files revealed no record of the matter. No claim forms were sent to plaintiff. It was defendant’s recollection the phone call (related to him by his employee) came into his office on December 23 or 24.

The $131.50 check given Gainey by plaintiff was received at defendant’s office on December 27 with an application on State Farm Insurance Company form. The information from that application was transferred to a Prudence Mutual Insurance Company form by an employee of defendant, and the “Prudence” application form, prepared December 27, together with plaintiff’s check endorsed to Prudence Mutual Insurance Company were forwarded that day to the St. Louis office of the insurance company. Defendant testified that prior to December 27 he had no knowledge that plaintiff desired insurance and this testimony is the only direct evidence on the point. The Prudence policy bearing December 27, 1965, as the date of issuance was thereafter sent to defendant’s insurance agency, and on January 7, 1966, mailed from defendant’s office to plaintiff. An employee of defendant prepared an invoice dated January 7, 1966, showing payment in full of $116.50 for “Liability $10/20/5,000” coverage on a “1956 Plymouth 4 door” placed with the Prudence Insurance Company and issued “12/20/65” to expire “6/20/66”. This invoice with the policy were forwarded to plaintiff who admitted he received them but stated they came separately on or about January 10, 1966.

Subsequently plaintiff was threatened with suit in Illinois for his son’s accident; though plaintiff was somewhat confused as to the nature of the proceeding, the claim was settled for $300 which plaintiff paid plus attorney fees of $100 and $75 for a bond as security deposit with the Missouri Department of Eevenue.

Defendant had been acquainted with Ken Gainey for approximately 15 years and on occasion received referral business from that office; but in the management of his business defendant did not personally process or prepare any of the papers involved with the issuance of plaintiff’s policy of insurance. Defendant had no authority to issue a binder on behalf of Prudence and though the company rejected or accepted applications following their own investigations, he recalled no rejections by Prudence of applications from his office.

According to Dumont, Dudley later demanded a refund of his premium since no insurance had been issued that would cover the accident and the refund was in fact made. Gainey, the State Farm agent, was not called to testify. Further facts necessary to the resolution of the issues will be set forth where appropriate.

Defendant contends the trial court erred in overruling his motion for a directed verdict since the evidence was insufficient to establish Gainey as defendant’s agent and thus he was not liable for Gainey’s representations to plaintiff. “[I]n determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiffs’ case.” Foote v. Scott-New Madrid-Mississippi Electric Co-op., 359 S.W.2d 40, 41 (Mo.App.1962). “In ruling a motion for a directed verdict at the close of the entire case, the court must take into consideration all of the evidence . as well as favorable inferences that may reasonably be drawn.” Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 23 (Mo. banc 1968). See also Penberthy v. Penberthy, 505 S.W.2d 122, 126[3, 4] (Mo.App.1973).

Defendant correctly states the relationship of principal and agent cannot be presumed but must be proved by.the party asserting the existence of that relationship, citing Martin v. Mercantile Trust Co., 293 S.W.2d 319 (Mo.1956), and Dell-Wood Tires v. Riss & Co., 198 S.W.2d 347 (Mo.App.1946). Similarly, the existence and scope of agency cannot be established by declarations of the alleged agent. Quinn v. Graham, 428 S.W.2d 178 (Mo.App.1968). Having carefully examined the record, we find plaintiff failed to prove that Gainey was acting as agent of defendant. The facts and inferences therefrom, taken in a light most favorable to plaintiff, would permit the conclusion that defendant gave Ken Gainey certain receipt forms imprinted with defendant’s name for the purpose of enabling Gainey to refer insurance clients to defendant and that such referrals occurred frequently over a period of years. These were apparently “high risk” applicants whom Gainey could not place with State Farm. Plaintiff sought out Gainey as a State Farm agent who found it necessary to refer the business elsewhere. Gainey used his State Farm Mutual application form which he forwarded to defendant’s office and we note he did not send the customer to defendant but apparently made the referral by mail, as much for his own benefit and that of the customer as for any other purpose. It could be found that defendant knew or should have known that Gainey would execute receipts given to him by defendant. Further, it could be concluded that Gainey completed a State Farm Insurance application form for plaintiff with the understanding it would be forwarded to defendant who would process and obtain insurance for plaintiff, and it was so forwarded to defendant, who by the January 7 invoice confirmed the intention to obtain insurance for plaintiff. The facts permit the inference that Gainey, on December 20, 1965, represented to plaintiff he would receive automobile insurance effective that date through the efforts of defendant. However, there was no evidence nor supportable inference that Gainey or plaintiff communicated with defendant on December 20. The mere fact that Gainey placed a telephone call on December 20 of an undisclosed nature to an unidentified third party is no proof of agency.

Plaintiff argues that Gainey’s agency for defendant is established by one or more theories: Express agency, implied agency, apparent authority, agency by estoppel, agency by ratification or alter ego. The argument portion of plaintiff’s brief does not nicely separate these theories; we nevertheless examine them individually.

Express agency is not a viable issue since there is no evidence of a specific agreement between Gainey and defendant authorizing the one to act for and under the control of the other.

Implied or inferred agency is actual authority given implicitly by the principal to his agent, “. . . circumstantially proved, or evidenced by conduct, or inferred from a course of dealing between the alleged principal and the agent [authority can be implied only from facts and never from general presumptions unrelated to special circumstances nor upon abstract considerations of the expediency or convenience of such authority. Implied powers, like any others, must be bottomed on some act or acquiescence of the principal, express or implied.” 2A C.J.S. Agency § 153, p. 778. See also Prior v. Hager, 440 S.W.2d 167 (Mo.App.1969). “In order for one to sanction another as his agent by holding him out as such, two essentials must concur: the purported agent must conduct himself in a manner consistent with some pretense of authority, and knowledge of his conduct in that particular, or some reasonable basis for the suspicion of it, must be brought home to the alleged principal. Silence of the alleged principal is not a factor for consideration unless ‘he knowingly allows another to assume, to act for him.’ ” Dierks & Sons Lumber Co. v. Morris, 404 S.W.2d 229, 232 (Mo.App.1966). Since implied authority is based on an inferred agreement between the purported principal and agent, it is possible to circumstantially prove the relationship by means of course of conduct between the two. Plaintiff argues implied agency is established by the fact that transactions between Gainey and defendant during the 13 or 14 prior years “were of like character to the controversy here”. This, however, assumes Gainey had acted as defendant’s agent during those prior years though the evidence discloses only that Gainey referred business to Dumont; there is no evidence that Gai-ney acted in a representative capacity with the knowledge or acquiescence of defendant.

The key to authority implied from course of conduct is the knowing acquiescence of the principal in the past acts. State on Inf. of Taylor v. American Ins. Co., 355 Mo. 1053, 200 S.W.2d 1 (banc 1946). “An agent’s authority may be inferred when • it appears that the agent has repeatedly performed acts like the one in question which the principal has ratified and adopted.” Austin-Western Road Machinery Co. v. Commercial State Bank, 255 S.W. 585, 588 (Mo.App.1923). Gainey was in possession of defendant’s receipt forms, but mere possession of letterheads or bill-heads does not in itself establish implied agency. Peninsular Stove Co. v. Adams Hardware & Furniture Co., 93 Mo.App. 237 (1902). “ ‘An agency will not be inferred because a third person assumed that it existed.’ ” Dierks & Sons Lumber Co. v. Morris, supra at 232. Implied authority arises from a relationship between principal and agent and any third party who desires to rely on that relationship has a duty to make reasonable inquiry into the scope of authority. Dierks & Sons Lumber Co. v. Morris, supra at 233. There is no evidence that defendant had held Gainey out as his agent nor permitted him to act in such capacity with the knowledge and acquiescence of defendant. Plaintiff relies on City of Springfield v. Koch, 228 Mo.App. 511, 72 S.W.2d 191 (1934), in which Edgar, brother of appellant Victor Koch, had over a period of years, with the knowledge and consent of Victor, signed Victor’s name to surety bonds similar to the one in issue. Victor took no steps to prevent it nor to give notice such acts were unauthorized. In holding that Edgar had implied authority to bind Victor, the court held authority to do a given thing may be inferred from the agent’s previous conduct of like character with the principal’s acquiescence therein. Koch is clearly distinguishable on the basis of Victor’s knowledge and acquiescence in the acts; no evidence involving details of the nature of prior dealings by Gainey on behalf of defendant which bespeak agency was adduced in this case. Plaintiff failed to prove implied agency.

Next plaintiff contends Gainey had apparent authority to act for defendant. Unlike implied agency, which is based on relationships between the purported principal and agent, apparent authority arises from manifestations of the principal to the third person. Restatement (Second) of Agency § 8, Comment e (1957). . where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform on behalf of his principal a particular act, such particular act having been performed, the principal is estopped, as against such innocent third person, from denying the agent’s authority to perform it.’ ” Erickson v. Civic Plaza Nat. Bank of Kansas City, 422 S.W.2d 373, 880[13] (Mo.App.1967); see Restatement (Second) of Agency § 8 (1957).

To find apparent agency the appearance of authority must have been created by the principal. Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5, 13 (Mo.1970); Fielder v. Production Credit Ass’n, 429 S.W.2d 307, 313[7] (Mo.App.1988). Here defendant has not placed Gainey in a position of authority from which a third person could reasonably believe he had authority to make representations as to the effective date of a policy. The only indication that Gainey might be an agent of defendant was his possession of defendant’s receipt forms; however, as pointed out above, mere possession of billheads is insufficient to establish agency. Possession of receipt forms may indicate authority to take orders without implying authority to execute a final contract. The evidence suggests Gainey acted more as broker for plaintiff than as sales or soliciting agent for defendant. A person dealing with a supposed agent under these circumstances has the duty of ascertaining the extent of the agent’s authority. Erickson v. Civic Plaza Nat. Bank of Kansas City, supra at 380. The fact that defendant sent plaintiff an invoice dated January 7, 1966, containing terms similar to the representations made by Gainey to plaintiff on December 20, 1965, is of no assistance to establish apparent authority since apparent authority can only be predicated on facts or appearances shown at the time of the transaction; knowledge subsequently acquired is irrelevant. Erickson, supra at 381. Plaintiff cites Wynn v. McMahon Ford Co., 414 S.W.2d 330 (Mo.App.1967), in which defendant automobile dealership gave an employee the title of used car sales manager. It was held a third person dealing with him could reasonably believe he had authority to conclude a sales contract for a boat on plaintiff’s used car lot. However, that case involved a secret limitation upon the power of the agent, of which the third person had no notice. The court held at 338: “No matter how valid such limitations may be as between principal and agent they do not detract from the agent’s apparent authority.” Wynn has no application here as this record discloses no agency nor any secret agreement of defendant to limit any suggested agency.

Agency by estoppel is similar to apparent authority except it requires that the person dealing with the purported agent change his position in reasonable reliance upon a manifestation of authority by the purported principal. Restatement (Second) of Agency § 31(1) (1957). If the manifestation of authority to the third person is by some formality, there may be apparent authority, if by parole the principle of estoppel applies. Restatement (Second) of Agency § 31(1), Comment a (1957). As noted, there is no credible evidence defendant held out Gainey as having any authority other than to submit applications for insurance to him. Section 31(2) of the Restatement (Second) of Agency suggests an alternative means of establishing agency by es-toppel: “If a principal entrusts to an agent an executed document containing blanks, and the agent fills the blanks without authority and delivers the document to a third person, who changes his position in reliance thereon without notice that the principal did not fill in the blanks before execution of the instrument, the principal is subject to liability to the third person as if the instrument had been completed by the principal or by an agent properly authorized to fill in the blanks.” (Emphasis added.) In this cáse the evidence indicates that the handwritten terms of the receipt given plaintiff on December 20 were supplied by Gainey in the presence of plaintiff. Even if we assume the signature on the receipt was that of defendant, placed there at some prior time, the requirements of § 31(2) are not met since Gainey filled in the receipt in' plaintiff’s presence who thus had notice the form was not completed by defendant. Plaintiff could not reasonably believe such blank receipt form, though it may have borne defendant’s signature, would autho- . rize Gainey to do more than take orders and give receipts for money paid. Plaintiff’s reliance on estoppel to establish agency is misplaced.

The plaintiff next relies on a theory of ratification to hold defendant liable for Gainey’s misrepresentation of immediate insurance coverage. The basis of this argument is the January 7 invoice executed by defendant showing the same terms as Gainey’s receipt of December 20. Gainey’s receipt to plaintiff recited “For Liab 10/20/5 on 56 Ply. — Effective date 12/20/65”. The January 7 invoice from defendant’s agency to plaintiff states in part: “Date Issued 12/20/65”, which corresponds with the language of the receipt. According to plaintiff this constitutes “ratification” of the fraud. We do not agree. It is well established in our law that there must be scienter, either actual or constructive, to support an action at law for fraud and deceit. Scienter implies guilty knowledge by the tort feasor or a guilty lack of knowledge; the former is charged here. MacKinnon v. Weber, 109 S.W.2d 692, 694[3] (Mo.App.1937). The misrepresentation must be made with intent to deceive, “or with what is recognized as the legal equivalent to a deliberately fraudulent intent to deceive.” Cohen v. Metropolitan Life Ins. Co., 444 S.W.2d 498, 505[5] (Mo.App.1969). Since defendant made no representations to plaintiff and Gainey was not his agent, we examine the circumstances and reasonable inferences to supply scienter for a ratification by defendant of Gainey’s misrepresentations.

On December 27, 1965, defendant’s office accepted, processed and forwarded a new application to the company, thereafter received the policy and mailed it with the invoice to plaintiff. Further, defendant personally endorsed the check to “Prudence”. If defendant intended to commit fraud and had guilty knowledge of Gai-ney’s misrepresentations on December 27, 1965, when plaintiff’s check was endorsed and forwarded with the application, he could only have gained that knowledge from the phone call to an employee in defendant’s office on December 23 or 24 (plaintiff testified he called on December 26) in which someone named Dudley claimed he was a policyholder, that his son had been involved in a collision and he wanted claim forms. The caller did not know which company insured them and no record of the matter could be found in defendant’s office. The endorsement of the check by defendant on December 27 is sufficient to supply confirmation of the arrangement to provide insurance, but it does not suggest defendant’s knowledge of Gai-ney’s misrepresentation. If defendant were truly aware of Gainey’s misrepresentation to the effect that coverage was already afforded and if he also knew that this application was from a person who had already experienced an accident, he would not have acted as he did. We consider the fact that on January 7, 1966, the invoice was sent (after the policy had been issued showing its effective date December 27) erroneously stating the date of issuance as December 20, 1965. If defendant had guilty knowledge and had been intending to defraud plaintiff on December 27 and likewise on January 7, he would have made certain the invoice of January 7 showed December 27 (the actual date of issuance) as the “Date Issued” instead of the erroneous date of December 20. These acts bespeak an administrative or clerical mistake by defendant’s employee who copied the date of December 20 from the application over to the invoice, as she so testified, rather than intentional ratification of fraud. Otherwise we must assume defendant was advertising or intentionally proclaiming to plaintiff his intent to defraud him and knowingly mailed plaintiff proof of that fraud. This is not a reasonable inference and without it proof of scienter fails. The January 7 invoice is more a badge of innocent mistake than intent to defraud. We cannot say the evidence permits a finding that defendant knew of Gainey’s misrepresentation. The absence of such a showing precludes any .finding of ratification of fraud. Further, even under the less strict standard for ratification of agency plaintiff’s proof fails. “As relates to agency, ‘ratification’ is an express or implied adoption or confirmation, with knowledge of all material matters, by one person of an act performed in his behalf by another who at that time assumed to act as his agent but lacked the authority to do so . . .” (Emphasis added.) Wilks v. Stone, 339 S.W.2d 590, 595[6-9] (Mo.App.1960).

In Gibson v. Metropolitan Life Ins. Co., 204 S.W.2d 439 (Mo.App.1947), the plaintiff alleged the agent of defendant insurance company represented the loan value of an existing insurance policy could be used to pay premiums on a new policy, despite contract language denying an agent authority to make such representation. Although the defendant company sent out policy exchange forms that would result in giving effect to the proposed transaction upon final approval by the home office, the court found against ratification on the grounds that plaintiff did not introduce evidence tending to show the defendant company knew of promises by its agent at the time it sent the forms. “Plaintiff’s argument in support of the point that there was a ratification by defendant of the acts and promise of its agents does not take into account the total failure of proof to show that defendant had any knowledge whatsoever of the promises claimed by plaintiff to have been made by the agents of defendant that the June, 1933, premium on the policy in suit need not be paid because it would be taken care of in the exchange of policies. It is settled law that an agent’s unauthorized promise or contract cannot be held to be ratified by the principal unless it is shown that the principal had knowledge of the unauthorized promise or contract made by the agent.” (Emphasis added.) Gibson, supra at 444-445; see 2A C.J.S. Agency § 73, p. 661. “The first essential in ratification [of agency] is that the principal have full knowledge of all the material facts at the time he is charged with having accepted the transaction as his own.” Hutcheson & Co. v. Providence-Washington Ins. Co., 341 S.W.2d 142, 146 (Mo.App.1960). This being true for ratification of agency, a fortiori it is required for ratification of fraud.

Finally, respondent claims that Gai-ney acted for defendant as an alter ego. There is no evidence that Gainey was in direct contact with the defendant at the time he completed the receipt given to plaintiff on December 20. There is certainly no evidence of direct control of Gainey by defendant at that time and thus the theory of,alter ego is without merit.

Plaintiff has failed to prove any relationship between defendant and Gainey based on any theory of agency that would support a finding that Gainey’s representations to plaintiff on December 20 were binding on defendant. Though we view the evidence in the light most favorable to plaintiff, any finding of agency would necessarily rest on speculation and conjecture.

The judgment is reversed.

WEIER, P. J., and CLEMENS, J., concur.

      . Though plaintiff offered no proof concerning the handwritten portions, the evidence justifies the conclusion it was prepared by Gainey.

      . No explanation appears concerning the difference in amounts of the $131.50 check and the $116.50 invoice.


author: SOMERVILLE, Presiding Judge.

text:
    Sonya WALLANDER, Plaintiff-Appellant, v. John HICKS, Defendant-Respondent.
    No. KCD 27058.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Morgan M. Moulder, Camdenton, Claude T. Wood, Richland, for plaintiff-appellant.
    Glenn A. Burkart, Richard E. Dorr, Mann, Walter, Burkart, Weathers & Walter, Springfield, Thomas G. Woolsey, Wool-sey & Yarger, Versailles, for defendant-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARB, C. J., and SWOFFQRD, J.
   SOMERVILLE, Presiding Judge.

Plaintiff instituted an action for wrongful death (§ 537.080 et seq., RSMo 1969, V.A.M.S.) in the Circuit Court of Laclede County, Missouri, to recover damages for the death of her minor son Kevin Walters. Kevin, who was ten years old, sustained fatal injuries when struck by a motor vehicle driven by defendant. The tragic accident occurred on February 8, 1973, on City Route 66 in Lebanon, Missouri.

Plaintiff was divorced from Kevin’s natural father and brought the wrongful death action in her name alone, for the use and benefit of both herself and Kevin’s natural father, since the latter refused to join in the action.

The wrongful death action was tried in Morgan County, Missouri, on change of venue and submitted to the jury on two disjunctive grounds of primary negligence— (1) defendant failed to keep a careful lookout, or (2) defendant knew or by using the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, or slackened his speed, or slackened his speed and sounded a warning, but defendant failed to do so.

The jury found the issues in favor of defendant, and judgment was entered in favor of the defendant in accordance with the jury’s verdict. Plaintiff timely appealed the adverse judgment, claiming the trial court erred (1) in admitting into evidence a mutual agreement effected between plaintiff and Kevin’s father, approved by the appropriate court having jurisdiction, which modified the original divorce decree affecting care, custody and control of Kevin, and (2) in permitting plaintiff to be cross-examined on, and Kevin’s father on direct examination to testify to, the following matters: (a) identity of the person who was supporting and had actual custody of Kevin at the time of his death, (b) identity of the person who paid Kevin’s medical and burial expenses, (c) refusal of Kevin’s father to join in the wrongful death action, and (d) facts surrounding the mutual agreement effecting modification of the custody provisions contained in the original divorce decree.

The multiple instances of prejudicial error claimed by plaintiff are never reached if, as contended by defendant, plaintiff failed to make a submissible case under either disjunctive submission of primary negligence heretofore iterated.

Resolvement of whether plaintiff made a prima facie case under either disjunctive submission of primary negligence relied upon is properly weighted in her favor. The evidence must be viewed in the light most favorable to plaintiff’s theories of submission and she is to be accorded all reasonable inferences springing from the evidence when so viewed which aid her theories of submission. Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968); Anthony v. Morrow, 306 S.W.2d 581 (Mo.App.1957); and Graham v. Conner, 412 S.W.2d 193, 198 (Mo.App.1967). However, this court can not imagine the existence of evidence, when none in fact exists, or supply missing evidence, to flesh out an otherwise insubmissible case, nor can it spring inferences from nowhere upon which to predicate submissibility.

Turning now to the evidence, and viewing it as just mentioned, the facts leading up to Kevin’s tragic and untimely demise unfold as follows. Defendant, the only eyewitness to the accident culminating in Kevin’s death, was called as a witness by plaintiff. He was seventy-nine years of age and a resident of Lebanon, Missouri. On the evening of February 8, 1973, he was returning to his home in Lebanon from a business trip to Springfield, Missouri. The weather was fair, clear and dry, and he was driving a 1971 Dodge Polara which was in good mechanical condition in all respects. He was alone at the time and arrived back in Lebanon at approximately six p. m. It was dusk and beginning to get dark when he arrived back in Lebanon and he therefore had the car’s headlights on, as did other motorists at the time. Upon reaching Lebanon he proceeded north on City Route 66, a two-lane blacktop road, approximately twenty feet wide, with six foot shoulders on each side, at a speed of approximately thirty miles per hour (within the posted speed limit).

Prior to the accident Kevin had been visiting in the home of Tracey Bell which was located on the east side of City Route 66. Kevin’s home was on Howard Street and west of City Route 66. While Kevin was visiting in the Bell home it began to get dark and Kevin left, exiting the Bell home by way of the back door. Tracey Bell did not see the boy after he left his home until after the accident occurred.

The Bell home, which faced City Route 66, had two driveways, variously described as the first and second driveway, and the south and north driveway. The distance between the center of the south driveway and the center of the north driveway was sixty feet. The distance between the south line of the Bell property and the center of the north driveway was one hundred and fifty feet. There were a large number of trees (several of which were Cedar) located in and which “shaded” parts of the front lawn of the Bell home. However, their location with respect to and their effect on the area where the fatal accident occurred is far from definitive.

City Route 66 where it ran in front of the Bell property, and for some distance north and south thereof, was straight and level. As defendant proceeded north on City Route 66 in the area of the Bell home, with his headlights on, he could see ahead for a distance of approximately 300 to 350 feet, and as he did so he met an oncoming vehicle which momentarily occupied his attention.

Defendant had travelled the particular route in question on prior occasions and was familiar with the fact that the Bell driveways joined City Route 66 on the east side. Evidence was also introduced that children frequently had occasion to be in the area.

According to defendant, Kevin “jumped in front” of his car at a point near the south side of the north driveway which led to the Bell home. Defendant was looking straight ahead and did not see Kevin until the boy “jumped in front” of his car “from the shoulder of the driveway”. Defendant’s car struck Kevin at some point in the area adjacent to the north driveway and near the center or east portion of the northbound lane of City Route 66. The evidence was cast in such generalities that it defies fixing the point of impact with any greater degree of preciseness. Defendant did not sound his horn, slacken his speed or apply his brakes before his automobile struck Kevin.

After striking Kevin, it did not take defendant “very long” to bring his car to a stop. When his car was brought to a stop, it was headed north. Defendant then got out of his car and observed Kevin “lying crossways in the left lane” some six or eight feet from his car. The record does not otherwise indicate where Kevin was lying with respect to defendant’s car.

In order to make a submissible case against defendant for failure to keep a careful lookout, substantial evidence had to be presented to the jury from which it could reasonably find that defendant, in the exercise of the highest degree of care, could and should have seen Kevin in time thereafter to have taken effective precautionary action. Zalle v. Underwood, 372 S.W.2d 98, 102 (Mo.1963); Graham v. Conner, supra; and Michaud v. Burlingame, 490 S.W.2d 680 (Mo.App.1973). Evidence of defendant’s failure to keep a careful lookout, standing alone, was not sufficient to make a submis-sible lookout case. It had to be coupled with substantial evidence from which the jury could reasonably find that such failure constituted the proximate cause of the accident which resulted in Kevin’s fatal injuries. Zalle v. Underwood, supra; and Miller v. St. Louis Public Service Company; 389 S.W.2d 769, 772 (Mo.1965). Evidence of the relative positions of defendant’s car and Kevin with respect to the point of impact, when defendant could and should have seen Kevin in a position fraught with danger, was necessary to enable the jury to find that defendant thereafter had the time, distance, means and ability to take effective precautionary action to avoid striking Kevin, i. e., to support a finding by the jury that defendant’s failure to keep a careful lookout constituted the proximate cause of the accident which occasioned Kevin’s fatal injuries. Zalle v. Underwood, supra; Graham v. Conner; supra; Harris v. Lane, 379 S.W.2d 635 (Mo.App.1965); and Bolhofner v. Jones, 482 S.W.2d 80 (Mo.App.1972).

Assuming, arguendo, that the jury could infer from the evidence that defendant could and should have seen Kevin before he did, more was required, as just mentioned, for plaintiff to make a submissi-ble case predicated on defendant’s failure to keep a careful lookout. When defendant could and should have seen Kevin, Kevin’s location and conduct must have been such that defendant, in the exercise of the highest degree of care, knew or should have known that there was a likelihood of injury and, at that moment, the relative positions of defendant’s car and Kevin must have been such that defendant had the time, distance, means and ability to take effective precautionary action. Ochs v. Wilson, 427 S.W.2d 748 (Mo.App.1968). In the instant case, mindful that Kevin’s tender age made him less appreciative of potential danger and that such is a factor requiring proper consideration (Graham v. Conner, 202, supra, and cases therein cited), and after viewing all the evidence and the reasonable inferences springing therefrom in a light most favorable to plaintiff, the cold, harsh reality remains that no substantial evidence existed from which the jury could find or reasonably infer that defendant could and should have seen Kevin in a position of danger in time to have taken effective precautionary action when the duty to do so arose. The record is silent as to the relative positions of defendant’s car and Kevin with respect to the point of impact prior to the time Kevin “jumped in front” of defendant’s car from “the shoulder of the driveway”. The record, likewise, is silent as to the distance defendant’s car and Kevin were, respectively, from the point of impact at the moment Kevin, as defendant testified, “jumped in front” of defendant’s car from the “shoulder of the driveway”. Although Kevin obviously “jumped in front” of defendant’s car from the right, the angle from which he did so is not known, nor is the speed with which he did so known. No evidence was introduced showing where Kevin was with respect to the east edge of City Route 66 when he “jumped” from the “shoulder of the driveway” in front of defendant’s car. The record is wanting with respect to whether Kevin was in continuous motion from the moment he left the Bell home until he was struck, and, if he was, whether he was walking or running. The evidence failed to provide even the slightest clue as to how much time elapsed between Kevin’s departure from the Bell home and the occurrence of the accident. Kevin, for all the evidence shows, might have been standing clear of the travelled portion of City Route 66 in a position of safety on the shoulder as defendant’s car approached, and then suddenly jumped in front of it just as it was passing. Even so, if such did occur, there was no evidence as to the relative positions of defendant’s car and Kevin with respect to the point of impact as Kevin approached the shoulder, or when he arrived there, or when he “jumped” therefrom “in front” of defendant’s car. The multiple vacuums existing in the evidence vis-a-vis the controlling principles heretofore iterated compel the conclusion that plaintiff failed to make a submissible case against defendant on the premise that he failed to keep a careful lookout.

What has been said regarding the legal frailty of plaintiff’s submission that defendant was negligent in failing to keep a careful lookout likewise holds true and is germane regarding plaintiff’s alternate submission that defendant “knew or by using the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, or slackened his speed, or slackened his speed and sounded a warning, but defendant failed to do so.” Assuming, ar-guendo, that the jury could have inferred that at some point prior to impact defendant could and should have known of the reasonable likelihood of collision, such alone was insufficient to carry plaintiff’s alternate submission to the jury. By the re-quiremental nature of the language of the alternate submission, evidence was additionally required from which the jury could find or reasonably infer that actual or constructive knowledge of the likelihood of collision was acquired by defendant in time to have thereafter effectively taken one of the suggested precautionary measures. As stated before, there was no evidence as to the respective distances of defendant’s car and Kevin from the point of impact when Kevin could or should have been seen by defendant in a position fraught with the likelihood of injury. Consequently, there was an evidentiary void regarding whether defendant knew or could have known of the reasonable likelihood of collision in time to have thereafter effectively taken one of the suggested precautionary measures. Since evidence was lacking to support all the essential elements of plaintiff’s alternate submission, she likewise failed to make a sub-missible case on her alternate submission. Bolhofner v. Jones, supra; and Cook v. Cox, 478 S.W.2d 678 (Mo.1972).

Plaintiff, apparently anticipating defendant’s argument that she failed to make a prima facie case as to either disjunctive submission, cited two cases, De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628 (Mo. banc 1953) and Immekus v. Quigg, 406 S.W.2d 298 (Mo.App.1966), to counter said argument. Parenthetically, De Lay dealt principally with the zone of discoverable peril as related to the doctrine of humanitarian negligence. More to the point, however, the facts in said cases are clearly distinguishable from those here presented on appeal. In both De Lay and Immekus there was evidence from which the respective juries could determine that visibility of the injured parties, and distance, speed and direction of travel of the respective parties in relation to the points of impact at a particular point of time prior to the ensuing accidents, were such that said accidents could have been avoided by proper precautionary action. No broad spectrum of comparable evidence was present in the instant case to sustain submissibility of either of the disjunctive theories of actionable negligence relied on by plaintiff.

Since plaintiff failed to make a submissi-ble case as to either disjunctive theory, her claims of trial error (infra) are unavailing, notwithstanding the fact that they might be found to be reversible error if fully analyzed and reviewed, because, according to the evidence, defendant was entitled to a judgment in his favor as a matter of law. Tragedy sometimes begets tragedy. Be that as it may, this court lacks the power to make an infirm case whole.

Judgment affirmed.

All concur.