text:
    Logan M. MORRIS, Appellant, v. Dorothy A. ULBRIGHT and Ralph C. Ulbright et al., Respondents.
    No. KCD 30490.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Alan E. South, Crews, Milliard & South, Kansas City, for appellant.
    Hill & Miller, Richmond, for respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Logan M. Morris filed suit to quiet title to certain real estate in Caldwell County against Dorothy Ulbright and her son Ralph. The trial court found against him but on appeal the Supreme Court adjudged Logan Morris to be the owner. Morris v. Ulbright, 558 S.W.2d 660 (Mo.banc 1977). Following this decision Dorothy Ulbright and Ralph Ulbright filed a counterclaim in which they sought to recover from Morris the value of improvements made on the real estate. Morris filed an answer to the counterclaim in which he prayed for the reasonable rental value of the property. The court, sitting without a jury, entered judgment in favor of the Ulbrights against Morris for $8,000 for the value of improvements made to the real estate; for $252.13 in taxes paid by them and offset this amount by $720 for the reasonable rental value of the property. Morris appeals.

On this appeal Morris contends the Ulbrights failed to show they had made improvements in good faith without notice of Morris’s adverse claim of title and that the amount offset as rent was inadequate. Reversed and remanded.

The background of this litigation is stated in Morris v. Ulbright, supra. Briefly, the initial controversy revolved around the legal effect of a deed from Frank Ulbright and his wife, Lina, to their son, Logan M. Ulbright and his bodily heirs. Logan M. Morris is the son of Logan M. Ulbright; however, he acquired the name Morris when he was adopted by his mother’s second husband following her divorce from Logan M. Ulbright. The Supreme Court held that the adoption of Logan M. Ul-bright (Morris) did not deprive him of title to the real estate because he took title as a purchaser under the deed from his grandparents to his father, and not as an heir of his father.

Prior to the decision by the Supreme Court, Dorothy Ulbright and her son, Ralph, had acquired record title to the real estate. Following the decision vesting title in Morris, Dorothy and Ralph filed a counterclaim alleging they had made improvements to the real estate and had paid taxes thereon and prayed for the value of the improvements and the amount of taxes paid. In his answer Morris alleged Dorothy and Ralph had actual knowledge of his claim of ownership and their claim for improvements was thus barred.

Dorothy and Ralph claimed the value of improvements made by them prior to the filing of the quiet title action under § 524.-160, RSMo 1969, frequently referred to as the “betterment statute.” Both Dorothy and Ralph testified they knew of the deed to Morris’s father, Logan M. Ulbright, and knew the legal question presented was whether or not Logan M. Morris after his adoption could take under the deed to Logan M. Ulbright and his bodily heirs. For an answer to the legal question of the rights of Morris in this property after his adoption, Dorothy and Ralph consulted Attorney Cameron. Mr. Cameron wrote a title opinion in which he stated the adoption of Morris took him out of the line of inheritance of Logan M. Ulbright and thus Morris had no interest in the property. As a result he concluded good title was vested in Dorothy Ulbright and Ralph Ulbright.

Following the receipt of this opinion from their attorney, Dorothy and Ralph made improvements to the property. The court found the improvements were of a value of $8,000 and further found Dorothy and Ralph had paid taxes in the amount of $252.13 to which they were entitled to be paid by Morris. The court found the rental value of the property to be $720 and allowed that sum to Morris as a credit against the amount owed Dorothy and Ralph for the improvements.

On this appeal Morris contends Dorothy and Ralph had notice of his claim of ownership of the property and after full knowledge of this claim made the improvements and under these circumstances are barred from recovery for the improvements. Dorothy and Ralph concede in their brief that they knew Morris was claiming title prior to making any improvements but state the question presented in this case is whether or not the claim of ownership on the part of Morris rose to the statutory requirement of notice in § 524.160.

Section 524.160 provides:

If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession, held by himself or by his tenant, of any lands, tenements or here-ditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title.

One of the earliest cases under this section is Lee v. Bowman, 55 Mo. 400 (1874). In that case the court stated at p. 403:

For it is an equitable doctrine of universal recognition, that he who takes with notice of the claim of another, takes subject to that claim. Notice in this connection, does not mean direct and positive information, but anything calculated to put a man of ordinary prudence on the alert, is notice.

The court further stated “that notice and good faith cannot co-exist.”

The court held that once a person is given a clue concerning a defect in his title, he is chargeable with knowledge of all facts to which that clue would lead him if he purposefully followed it. Dorothy and Ralph had more than a clue — they knew the precise claim Morris was making and the exact legal basis for it. Thus, Dorothy and Ralph’s argument here that they did not have the notice required by the statute of Morris’s claim before making improvements is not well taken. Dorothy and Ralph seem to contend the statute requires formal written notice. Neither Lee nor the cases following it have required written notice. Martin v. McCabe, 358 Mo. 118, 213 S.W.2d 497, 501[2, 3] (Mo.App.1948). There could be no doubt that Dorothy and Ralph had full notice as contemplated by the statute of Morris’s adverse claim before they made the improvements.

Dorothy and Ralph place great reliance upon the fact they obtained an attorney’s opinion as to the validity of Morris’s claim before they made any improvements. They contend their good faith is shown beyond any question by the fact they obtained an attorney’s opinion and, based upon his advice, they in all good faith believed they were the owners of the property and that Morris had no valid claim.

In Brandon v. Stone, 237 Mo.App. 671, 162 S.W.2d 83 (1942) suit was brought to set aside a deed under which the record owners claimed, and the judgment was entered in their favor. After this judgment the attorney for the record owners advised them the adverse claim to their title was without merit and based upon this advice and during the pendency of the appeal improvements were made. The court held the advice of the attorney that there was no merit in the adverse c?aim did not bring the making of the improvements within the good faith requirement. As in this case, the advice of the attorney in Brandon was proved to be erroneous.

In Richmond v. Ashcraft, 137 Mo.App. 191, 117 S.W. 689 (1909) the court stated that one who knows of a claim but had an honest but erroneous opinion of his own title could not recover for improvements made with full knowledge of an adverse claim. The court stated that a mistake as to the law in respect to his title would not alone defeat a claim for improvements, but that when one knows the facts and mistakes the law by thinking his title good when it is later held not to be, he cannot recover because his actions were taken with full knowledge of the facts. So here, it is not the fact that Dorothy and Ralph proceeded on an erroneous opinion of law and honestly thought they owned the property which defeats their claim. Rather it is their action in making the improvements with full knowledge of the facts of the claim of Morris.

There can be no doubt Dorothy and Ralph made the improvements with full notice of the claim of Morris but honestly believing they owned the property. Under. Lee v. Bowman, supra, Richmond v. Ashcraft, supra, and Brandon v. Stone, supra, this bars their recovery. There is no escape from the well established law in this state that a claim under § 524.160 must fail if it is shown the improvements were made with notice of an adverse .title.- Because they claim under the statute and fail to show that the improvements were made without notice, their claim for improvements must fail.

The court granted Morris $720 as the rental value of the real estate, and he contends this amount is insufficient. It is well settled that the rental value is to be calculated on the land without the improvements. Armor v. Frey, 253 Mo. 447, 161 S.W. 829, 839[22] (1913). There was no evidence here as to the rental value of the property without the improvements to support that judgment.

Tlfe judgment in favor of Dorothy Ul-bright and Ralph Ulbright in the amount of $8,000 for improvements is reversed and on this claim the court is directed to enter judgment in favor of Logan M. Morris. The judgment in favor of Dorothy Ulbright and Ralph Ulbright for $252.13 for taxes has not been attacked upon appeal and is affirmed. The judgment in favor of Logan M. Morris for $720 as the rental value is reversed and because there is no evidence upon which this court could enter a judgment, this claim is remanded for the reception of evidence as to the reasonable rental value of the property without improvements. Capoferri v. Day, 523 S.W.2d 547, 558[2, 3] (Mo.App.1975).

All concur.


source: Caselaw Access Project

author: PRITCHARD, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. BLUE RIDGE BAPTIST TEMPLE, INC., et al., Exceptions of Missouri Public Service Company, Appellant.
    No. WD 30491.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Howard F. Sachs and Lowell L. Smithson, Judith Paxton Rea, Kansas City, for appellant; Spencer, Fane, Britt & Brown, Kansas City, of counsel.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr. and James B. Jackson, Asst. Counsel, Missouri State Highway Commission, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

Respondent condemned a strip of land in or near Lee’s Summit, Missouri, through appellant’s about 84 acres of land for the construction of Interstate Highway 470. Appellant’s land generally fronts on old U. S.Highway 50 on its west with the exception of an area occupied by Dave L. Cross Motors. To its north is land owned by Unity Village, and to its south and southeast is about 340 acres of land owned and occupied by the Western Electric Company. Interstate 470 upon appellant’s property begins at its southwest corner, and runs in a northeasterly direction, dividing the tract into two separate parcels of land.

The one dispositive issue concerns the trial court’s permitting testimony, over objection, as to respondent’s not prohibiting appellant’s use of certain temporary easements during construction of the roadway. The petition pleaded (Paragraph 8. 15.30) a full taking of the temporary easements without any permission being granted to appellant to use the areas during the time of construction.

The testimony complained of was that of respondent’s witness, Harry Hutton. It was to the effect that appellant would have the right to maintain an access road and make a sewer connection in the easement areas because such would not interfere with construction; that respondent would not prohibit the use of a portion of an easement in a drainage area, but that appellant would probably have to put in a pipe in the low area to permit drainage; and also that there would be no prohibition in connecting to a sewer line manhole on the northeasterly part of the property. These matters were said by the witness to be permitted by respondent in all roadway construction cases. The trial court overruled the objections to this line of testimony upon the theory that it had to do with what would interfere with construction, or with what would be compatible with construction— what it would require or forbid.

The dispositive issue is controlled by Shell Pipe Line Corporation v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917 (1932). Here, the issue is whether the trial court erred in admitting evidence, the testimony of Hutton, as to respondent’s lessened use of its easements’ areas during the roadway construction period. In the Woolfolk case, the issue was whether the trial court erred in excluding evidence that the condemnor did not fence its right of ways and would not fence its right of way across the landowners’ property, because that testimony would have tended to reduce the damages to the property taken. There was no pleading limiting condemnor’s right to the land without fencing the right of way. At page 918[1 — 3], the court said, “The well-established doctrine in this state is that the condemning party may appropriate less than the full rights available under the statute, and the fact that the use is so limited is a proper matter for consideration in fixing the amount of damages to be allowed. (Citing cases and authority.)", and quoting from 20 C.J., pp. 768, et seq., in which St. Louis, etc., R. Co. v. St. Louis Union Stock Yards Co., 120 Mo. 541, 25 S.W. 399, 404 (1894), and cases from other jurisdictions were cited, “ ‘The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.’ ” and “And our decisions hold that the condemning party’s purpose to exercise less than the full rights available under the statute should appear with reasonable certainty in the petition or be brought in by way of amendment thereto. (Citing cases.)” No error was found in excluding the evidence that the condemnor would not fence its right of way, and the judgment was affirmed. The court distinguished St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192 (Mo.1893), upon the fact there that the condemning party had offered in evidence a stipulation, signed by its engineer, containing an explicit offer to construct and maintain two open crossings for defendants’ use not provided by statute (thus making it a matter of record the manner in which the right of way should be used). Here, as in the Wool-folk case, respondent did not amend its petition so as to permit appellant’s use of the temporary easement areas, and there was no solemn stipulation filed as to that permission. All that there is is witness Hutton’s statement that the cross use would be permitted. Under Woolfolk, this was error necessitating remand for new trial. See also Union Electric Company v. Levin, 304 S.W.2d 478, 483 (Mo.App.1957); and State ex rel. State Highway Commission v. Stotko, 365 S.W.2d 64, 66 (Mo.App.1963), relating to error in refusing to permit amendment to the petition taking less than initially sought.

Another point requires discussion because it may arise upon new trial. For impeachment purposes, respondent cross-examined appellant’s witness, Sweeney, a former Jackson County assessor, as to a tax assessment made by his office of the land value of $225,542.64, as measured against his trial testimony the before taking value was $1,027,000. The tax assessment form was signed by Sweeney’s deputy. § 53.060, RSMo 1969, controls in its provision that the assessor is responsible for the official acts of his deputies. The general rule is stated in 81 Am.Jur.2d, Witnesses, § 600, p. 611, “But an instrument in writing which the witness did not execute or authorize is not admissible to impeach him.” Some modification of this rule is stated in 98 C.J.S., Witnesses, § 595, p. 581, “A witness may be impeached by showing statements of another, assented to and adopted by him and contrary to his testimony, but not by statements of another for which he is not responsible and which he has not approved or assented to, unless the circumstances required contradiction by him.” (Emphasis added.) Although evidence of assessed valuation is generally inadmissible to establish a present fair market value of property, Kansas City & G. Ry. Co. v. Haake, et al., 331 Mo. 429, 53 S.W.2d 891 (1932); St. Louis Housing Authority v. Gordon, 382 S.W.2d 451 (Mo.App.1964), there are numerous cases allowing impeachment evidence where a witness, former tax assessor or member of an assessment board, has given testimony contrary to his previous assessment. Krider v. City of Philadelphia, 180 Pa. 78, 36 A. 405 (1897); In re Board of Water Supply, 73 Misc. 231, 130 N.Y.S. 997 (1911); the dicta in Edmondson v. Carroll, 65 S.W.2d 1107 (Tex.Civ.App.1933); Phillips v. Marblehead, 148 Mass. 326, 19 N.E. 547 (1889). And see the analogous cases in this state where a former condemnation commissioner has given testimony contrary to his award as initial appraiser: State ex rel. State Highway Commission v. Meadows, 444 S.W.2d 225 (Mo.App.1969); and City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003 (1932). It should be noted, however, that there are cases disallowing the use of tax assessments for impeachment purposes: In re U. S. Commission to Appraise Washington Market Co. Prop., 54 App.D.C. 129, 295 F. 950 (1924); Johnson v. Wimsatt v. Reiehelderfer, 60 App.D.C. 186, 50 F.2d 336 (1931); Darlington Brick & Mining Co. v. Commonwealth, 407 Pa. 660, 182 A.2d 524 (1962). Under § 53.060, supra, and the cases above first cited, the better rule in this state is that a tax assessor’s former assessment may be used to impeach him. And, having ruled, for the purposes of new trial, that the former assessment of Sweeney is admissible for impeachment purposes, the matter comes up of appellant’s requested, and refused, withdrawal Instruction No. B: “The evidence of and pertaining to the assessed value of the property is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.” This instruction was too broad in that it withdrew the matter altogether from the case, and there was no error in refusing it because it did not restrict the consideration of the jury to the impeaching effect of the evidence, and exclude it as to evidence of value. See the Worthington case, supra, as to the propriety of an instruction limiting the testimony for impeachment purposes only (eliminating any effect of it as to evidence of value). See also Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334, 337[5] (1947); and State ex rel. State Highway Commission v. Yackel, 445 S.W.2d 389, 393 (Mo.App.1969). It was the duty of appellant to offer a proper instruction on the subject. Helming v. Adams, 509 S.W.2d 159, 167 (Mo.App.1974), and cases cited. Upon retrial, should this evidence be in the case in the same or similar form, appellant may offer a proper withdrawal instruction as to its effect.

The judgment is reversed and the case is remanded for new trial.

All concur.


author: WASSERSTROM, Chief Judge.

text:
    Lawrence E. HUMFELD and Maurice Brown, d/b/a B & H Real Estate Company, Plaintiffs-Respondents, v. Norbert E. LANGKOP and Dorothy Langkop, Defendants-Appellants.
    No. KCD 30513.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      John T. Kay, James F. Crews, Kibbe, Crews & Gaw, California, for defendants-appellants.
    George A. Spencer, Columbia, William A. Spencer, Jefferson City, for plaintiffs-respondents. '
    Before WASSERSTROM, C. J., and WELBORN and SMITH, Special Judges.
   WASSERSTROM, Chief Judge.

Suit for brokerage commission. On the first trial which was held in Cooper County, the jury found for the defendants, but the trial judge granted a new trial on the ground that the verdict was against the weight of the evidence and that there was no substantial evidence to support the ver-diet. The case was then retried before a different judge in Cole County, resulting in a jury verdict in favor of plaintiffs for $6,750, from which defendants pursue this appeal.

Defendant land owners had been trying for about two years to sell their farm. Those efforts were unsuccessful and on April 28, 1975, they entered into a listing agreement appointing the plaintiff brokers as exclusive agents to sell their land for a period of 60 days at a price of $158,000, at a commission of 5% to be paid if a buyer were found within the time the agreement was in force. Plaintiffs promptly put signs on the property, advertised, and did produce two prospects, but no one who was willing to meet defendants’ asking price.

As the end of the 60 day exclusive period neared, the parties discussed what they ought to do about it. Plaintiff Humfeld testified that he told defendant Norbert Langkop that “we would be happy with an open listing and we would keep trying to sell it, and he could list it with somebody else, or sell it his [sic] self if he had a chance. * * * He told me to go ahead and leave my signs over there and try to sell it.” Plaintiff Brown confirmed that a conversation occurred with Langkop in which it was agreed that “we would go ahead and keep working on it, we would leave our signs up and work on an open listing.” There was no contradiction to that testimony, nor was there any contradiction to plaintiffs’ testimony that they did leave their signs on the property and continued advertising the property at all times here pertinent.

Plaintiffs’ continued efforts did subsequently produce Ronald B. Wenneker as a prospective buyer. The parties disagree on when he was first introduced by plaintiffs to defendants. Defendants’ testimony was that this occurred in the fall of 1975. Plaintiffs’ testimony was that Wenneker was introduced in February or March 1976. Regardless of which date be accepted, there is no dispute but that Wenneker did make an offer to trade property owned by him for defendants’ farm. This offer was discussed and taken under consideration by defendants. They ultimately rejected the offer on the ground that they wanted to receive cash rather than a trade.

Sometime in April, Brown met Wenneker at a restaurant, and some rather casual conversation about defendants’ farm took place. Sometime soon thereafter, Wenneker on his own initiative called defendant Norbert Langkop and renewed negotiations for the farm. Langkop at that time told Wenneker that he would accept $150,000. In cross-examination Langkop admitted that he arrived at that figure on the basis that “I knocked off the commission, because I was the one that sold it, they [plaintiffs] never sold it.”

On May 4, 1976, a salesman, Davis, employed by. plaintiffs, called Langkop to see about bringing around a new prospect for the farm. At that time Langkop turned Davis away with a statement that he thought he had a purchaser. Davis called again on May 16, 1976, and Langkop informed him that he had already definitely sold the property. Plaintiffs then checked the courthouse records and found that the purchasers were Mr. and Mrs. Ronald B. Wenneker.

I.

Defendants’ first point on appeal is that the trial court erred in failing to grant them a new trial on the ground of perjured testimony on the part of plaintiff Brown. The facts concerning this issue are as follows. At the first trial of this case, Brown was asked on cross-examination about the time of the meeting when plaintiffs first introduced Wenneker to the defendants, and Brown testified at that time as follows:

“Q And the other transactions, in talking to him, was in ’75, wasn’t it?
A That’s right.
Q And it was in the fall of ’75, was it not?
A I don’t think so.
Q Just use your own memory, if you would—
A I haven’t got any dates.
Q You think it was in ’75 somewhere? Is that correct? Without looking over here and seeing Mr. Spence—
A That’s right. I think it was ’75.
MR CREWS: Fine. I have no further questions.”

At the second trial, plaintiffs’ counsel again went into this matter of time in his cross-examination of Brown, and that examination proceeded as follows:

“Q. Now, Mr. Brown, can you tell me whether or not you testified on a prior occasion under oath that the meeting between Wenneker and Langkop was in 1975?
A. I don’t think so.
Q. You say you don’t remember your testimony before in this matter?
A. I don’t think it was ’75.
Q. Could you have stated that it was in 1975?
A. No, I don’t think so.
Q. If the Court record would show that you had testified to that fact before it would be wrong; is that correct?
A. I don’t know whether I understand quite what you want to know.
Q. Did you not testify in the Circuit Court of Cooper County, Missouri on the 7th day of December, 1977, that the meeting between the Langkops, you, Mr. Humfeld and Mr. Wenneker took place in 1975?
A. No.
Q. You didn’t testify to that fact; is that your testimony today?
A. No.
Q. And your testimony today is that this conversation took place in February or March of 1976; is this correct?
A. The conversation at the coffee shop?
Q. No, no, no; the conversation in which you had the property trade set up between the Langkops and Wenneker, when they came to Columbia and you all went out and looked at the property; I believe you testified to.
A. It was — as I remember, it was kind of cold weather.
Q. Well, I believe you testified on direct examination of your attorney that it was in February or March of ’76.
A. Yes, I believe that’s right.
Q. Do you have anything to peg it to that time, any notes or memorandum, phone bills, anything like that?
A. No, I don’t think I have.”

In the course of this latter cross-examination, Brown was not confronted with any transcript of his former testimony, nor was any such transcript introduced at any time during the second trial. Defendants’ counsel apparently procured the transcript of Brown’s earlier testimony only after the conclusion of this second trial. He then offered that transcript to the trial judge in support of defendants’ motion for a new trial in which they argued, as they do here, that Brown committed perjury at the second trial.

The granting of a new trial on the ground of perjury requires a showing that the witness willfully and deliberately testified falsely. Carson v. Hagist, 143 S.W.2d 355 (Mo.App.1940). See also State v. Barkwell, 585 S.W.2d 149[7] (Mo.App.1979), and State v. Vidauri, 305 S.W.2d 437 (Mo.1957). In this regard, perjury is more than and must be distinguished from a mere mistake in testimony. Carson v. Hagist, supra. Moreover, it rests largely within the discretion of the trial court to determine whether perjury occurred and whether an improper verdict was thereby occasioned; and the action of the trial court will not be reversed unless the appellate court is satisfied that the trial judge abused his discretion. Calvin v. Lane, 297 S.W.2d 572 (Mo.App.1957); Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519 (1949); Gavin v. Forrest, 230 Mo.App. 662, 72 S.W.2d 177 (1934); Buehler v. Baum, 71 S.W.2d 851 (Mo.App.1934); Carson v. Hagist, supra.

There was no abuse of discretion here. Brown’s testimony at both the first and second trial was somewhat equivocal. Brown stated that he had no memorandum or other basis upon which to refer, and it is not surprising that this 77 year old man would be uncertain in memory as to the time when the meeting in question took place. It is significant that Brown was not confronted with his first testimony so that he might have a chance to refresh his recollection of what his testimony had been at the first trial. It is also important to observe that Humfeld and Davis also testified that the meeting in question occurred in February or March, 1976. Thus, even if the testimony of Brown be completely disregarded, there was still substantial evidence on which the jury could find and believe that the meeting took place in February or March, 1976, as Brown testified at the second hearing.

In any event, we cannot say on this record that the trial court abused its discretion in refusing to find that Brown intentionally and deliberately perjured himself, nor can we say that the trial court could not have reasonably concluded that Brown’s testimony did not produce an improper verdict. Defendants’ first point on appeal is therefore overruled.

II.

For their second point, defendants argue error in Instruction No. 4, which follows MAI 4.06, the approved damage instruction for a claim in quantum meruit. It is doubtful whether this point has been properly preserved since defendants’ motion for new trial does not so much as mention Instruction No. 4. Nevertheless, defendants did complain in their motion for new trial that plaintiffs failed to introduce evidence as to what was a fair and just commission, and this is essentially the argument which they now present under their Point II on this appeal. Giving defendants the benefit of a very generous application of the pertinent rules, we will review their basic contention to the extent that it is set forth in paragraph 3 of their motion for new trial.

In considering the sufficiency of plaintiffs’ evidence, the written and subsequent oral contract between the parties must be taken into account. This is true even though plaintiffs elected to submit their case on quantum meruit. Where a plaintiff has fully performed a contract and all that remains thereunder is payment by the defendant, the plaintiff has a choice at his option of either suing on the contract or waiving the contract and suing in quantum meruit. Perles & Stone v. Childs Co., 337 Mo. 448, 84 S.W.2d 1052 (1935); Steward v. Droste, 294 S.W.2d 600 (Mo.App.1956); Fuldner v. Isaac T. Cook Co., 127 S.W.2d 726 (Mo.App.1939). And if the plaintiff elects to proceed on quantum meruit, he may introduce the contract in evidence as prima facie evidence of reasonable value. Stewart v. Droste, supra; Curators, etc. v. Nebraska Prestressed Concrete, 526 S.W.2d 903 (Mo.App.1975); Brummet v. Livingston, 384 S.W.2d 101 (Mo.App.1965); Cavic v. Missouri Research Laboratories, Inc., 416 S.W.2d 6 (Mo.App.1967); Knoch v. Frye, 363 S.W.2d 737 (Mo.App.1963); Fuldner v. Isaac T. Cook Co., supra.

Here the parties had a written exclusive contract for a 5% commission which expired in June 1975. The plaintiffs testified without contradiction that the written contract was orally extended upon an open listing basis. It can be inferred that the open listing was on the same 5% basis as the original exclusive listing. This inference is supported by the decision in Carlson v. Klauer, 329 Mass. 398, 108 N.E.2d 664 (1952). In Carlson, plaintiff brought an action to recover for services in procuring a customer for certain real estate of the defendant. At some point, defendant offered to sell the property to customers of the plaintiff and agreed to pay the plaintiff a 5% commission. This “deal,” however, as stated by the court “fell through.” Nevertheless, while employed by the defendant in a different capacity, plaintiff located a buyer. Of particular importance was the court’s emphasis on the testimony that defendant told the plaintiff “to interest Wong Shew [the prospective buyer] and that the defendant would take care of the plaintiff.” Based on this evidence, the court stated:

“The defendant contends that, because there was no evidence as to the fair value of the services of the plaintiff referred to in count 2, the motion for a directed verdict for the defendant should have been allowed. He relies upon what was said in Driscoll v. Bunar, 328 Mass. 398, 403-404, 103 N.E.2d 809. In that case there was no evidence that the defendant promised to pay any percentage of the sale price and there was no evidence as to what would be a fair and reasonable charge for the plaintiff’s services. It was held to be error to submit the question of substantial damages to the jury, and a new trial was ordered on damages only.
“While it is true that in the instant action there was no direct evidence of the fair value of the plaintiff’s services, there was evidence in our opinion that the plaintiff was to receive a commission of 5% of the sale price paid by Wong Shew less a credit of $100 paid to the plaintiff by the defendant. There was evidence that the defendant agreed to pay the plaintiff a commission of 5% if the first transaction went through. When that deal failed the defendant urged the plaintiff to continue his efforts and as a result he procured Wong Shew who paid $19,000 for the property. When the defendant told the plaintiff that he would take care of him, the jury had a right reasonably to infer that the defendant meant that he would take care of the plaintiff on the same basis as agreed to in the earlier transaction, and that the plaintiff relied upon this meaning in continuing his efforts on behalf of the defendant.”

Just as in Carlson, so also here plaintiffs reasonably relied upon an understanding that the 5% commission would continue in effect for the purpose of the open listing.

Defendants attempt to expand their Point II by arguing that Instruction No. 4 is not supported by the pleadings. No such complaint of variance was preserved by the motion for new trial as required by Rule 78.07 and cannot be urged now. Herford Concrete Products, Inc. v. Aerobic Services, Inc., 565 S.W.2d 176 (Mo.App.1978); Economopoulos v. Curls, 377 S.W.2d 522 (Mo.App.1964); Bower v. Hog Builders, Inc., 461 S.W.2d 784 (Mo.1971); Skeleton v. General Candy Co., 539 S.W.2d 605 (Mo.App.1976).

III.

For their third point on appeal, defendants object to Instruction No. 3, which follows MAI 29.03, the approved verdict-directing instruction for use in a case for “Real Estate Commission — Sale Consummated — No Agreed Commission.” They claim this instruction was erroneous in that it contained no requirement that the jury find that plaintiffs were employed as brokers at the time defendants sold the farm to the Wennekers. This objection cannot be considered, because it has not been properly preserved. There was no objection to the instruction prior to submission to the jury, nor was there any point concerning this matter in the motion for new trial. See authorities cited in the last paragraph under Part II of this opinion.

The judgment is affirmed.

ALL CONCUR.

      . Defendants’ Point II reads in full as follows: “The Trial Court Erred in Permitting Submission of Respondents’ Instruction No. 4 in That Neither the Pleadings nor the Evidence Are Sufficient to Support Such Submission As a Matter of Law.”

      . Paragraph 3 of the motion for new trial alleged: “That Plaintiffs wholly failed to introduce evidence as to what a fair and just commission under the circumstances was, and that the failure to do so caused the jury to speculate as to damages claimed by the Plaintiffs and in arriving at their verdict.”

      . Rule 78.07 provides in part as follows: “Any specific objections to instructions which were not made at the trial before submission to the jury, must be set forth in the motion for new trial to preserve the error for review.” The record shows no objection to the instruction before submission to the jury.


author: SOMERVILLE, Presiding Judge.

text:
    Jack CLARK, Vernon Haines, Gary King, Lynn Wescott, James Clark, Robert Tipton, d/b/a Donoho’s Home Furnishings, and Jack McNabb, d/b/a Trenton Hardware, Appellants, v. CITY OF TRENTON, Missouri, Respondent.
    No. KCD 30560.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    John H. Norton, Wilbur L. Pollard, Norton & Pollard, Inc., North Kansas City, for appellants. ,
    Stockard, Andereck, Hauck, Sharp & Evans, Marvin L. Sharp, Trenton, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

The genesis of this litigation was an ordinance passed by the governing body of the City of Trenton, Missouri, to impose a city sales tax and a requisite election authorizing its imposition. See generally Sections 94.500 to 94.570, RSMo 1978.

On July 13,1978, as a sequel to the above events, a petition captioned “Petition For Declaratory Judgment”, naming the City of Trenton, Missouri, as defendant (hereinafter city), was filed by Jack Clark and others (hereinafter contestants) in the Circuit Court of Grundy County, Missouri. On July 27, 1978, the contestants, by leave of court, filed what was captioned “First Amended Petition For Declaratory Judgment”, to which the city filed a “Motion to Dismiss First Amended Petition” which was sustained by the trial court.

By way of a timely appeal the contestants seek reversal of the judgment of dismissal on the ground that the trial court incorrectly construed the “First Amended Petition For Declaratory Judgment” as being one to “contest” the election held by the city on April 4,1978, to authorize imposition of the city sales tax.

In order to set the stage for appellate review, it is important to take stock of what the trial court had before it to support its judgment of dismissal. As no supporting affidavits were filed, and no evidentiary hearing was held, the trial court had before it only the contestants initial and amended petitions, the city’s motion to dismiss and written suggestions of the city supporting its motion to dismiss and written suggestions of the contestants opposing the motion to dismiss. Although the matters raised by the city in its motion to dismiss did not prove themselves, they could be supported by appropriate allegations, if there were such, which might be contained in contest-, ants’ petition and by evidence found in the transcript. Light v. Lang, 539 S.W.2d 795, 797 (Mo.App.1976).

The transcript on appeal reveals that the contestants’ original petition bears a filing date of July 13,1978, and that their amended petition bears a filing date of July 27, 1978. Turning to the amended petition, the contestants alleged therein, formal allegations aside, as follows: (1) on or about January 20, 1978, the city passed an ordinance imposing a city sales tax; (2) “a special election was held in the City of Trenton on April 4,1978, at which time the qualified voting residents of Trenton voted in favor of said ordinance imposing the sales tax . . (3) that the city failed to comply with the applicable statutory requirements as to notice of said election; and (4) the prayer for relief, verbatim, was, “WHEREFORE, plaintiffs pray the order of this court declaring the special election held April 4,' 1978, to be illegal and void and of no effect, and further that the sales tax imposed be declared null and void, and for such other relief as shall be just and proper in the premises.”

The city’s motion to dismiss, among other things, struck at the contestants’ amended petition on the ground that it was an action to contest the city sales tax election and should be dismissed because it was untimely filed and for that reason contestants had not followed “the procedure prescribed by law for contesting an election”.

The scope of Sections 115.001 to 115.641, RSMo 1978, officially designated and to be known as the “Comprehensive Election Act of 1977”, Section 115.001, supra, effective January 1,1978,115.009, supra, is statutorily declared to be as follows in Section 115.-005, supra: “Notwithstanding any other provision of law to the contrary, sections 115.001 to 115.641 shall apply to all public elections in the state, except elections for which ownership of real property is required by law for voting.” Even more pertinently significant, Section 115.553.2, supra, provides in part that the result of “any election on any question” may be contested by one or more registered voters from the area in which the election is held, and Section 115.577, supra, provides in part that “[n]ot later than thirty days after the official announcement of the election result by the election authority, any person authorized by section 115.553 who wishes to contest the election ... on any question . shall file a verified petition in the office of the clerk of the appropriate circuit court.”

Digressing momentarily, Section 115.507, supra, provides that the election results shall be officially announced not later than the second Tuesday after the election. Although there was no allegation in the contestants initial or amended petition that the statutorily designated election authority officially announced the election results within the time prescribed in Section 115.507, RSMo 1978, under authority of Jones v. Buckley, 425 S.W.2d 204, 208 (Mo.1968), it appears that this factual void could. have been filled by indulging the presumption of regularity attending the performance of duties by election officials [in addition, see, generally, Windes v. Nelson, 159 Mo. 51, 60 S.W. 129 (1900), and Wilson v. Kennedy, 151 Ohio St. 485, 86 N.E.2d 722 (1949)]. It was unnecessary for the trial court to have relied solely upon the presumption just mentioned because the contestants, from a pragmatic standpoint, both below and on appeal, admitted that neither their initial nor amended petition was timely filed as required by the Comprehensive Election Act of 1977. At the trial level, in written suggestions filed in opposition to the city’s motion to dismiss, the contestants candidly admitted that neither their initial nor amended petition had been timely filed as prescribed by Section 115.577, supra, of the Comprehensive Election Act of 1977, and asserted that the matter of untimeliness was of no consequence since their action was one for declaratory judgment rather than one contesting the election. In the same vein, at page 7 of the contestants’ brief on appeal, virtually the same admission is found: “When the court holds, as it did on page 9 of the Supplemental Transcript, that if there was a matter to be tested, it should have been done in compliance with the ‘Comprehensive Election Act’, it mistakenly assumes that the acts complained of in the Plaintiffs’ petition were something that could have been brought pursuant to the ‘Comprehensive Election Act’ if they had been timely filed.” (Emphasis added.)

As matters before the trial court disclosed that the election was held on April 4, 1978, and the contestants’ initial petition was not filed until July 13, 1978, some 85 days after the latest date (April 18, 1978) for officially announcing the election results, the trial court was on sound ground in dismissing the contestants’ amended petition (filed July 27, 1978) if the contestants’ cause of action, in fact, was one to contest the election in question.

A careful reading of the contestants’ amended petition, notwithstanding the fact that it was captioned “Amended Petition For Declaratory Judgment”, leaves no doubt that its thrust and purpose was to contest the April 4, 1978, city sales tax election and in the next breath, if successful, ipso facto to have the city sales tax declared invalid. It was not an action to declare the “ordinance” null or void, or to declare the sales tax invalid, for reasons separate and apart from the election, as disclosed by both the text and prayer of both petitions.

The Comprehensive Election Act of 1977, in part, was obviously intended to give finality and conclusiveness to elections, and, to that end, accelerated judicial procedures were incorporated to govern election contests. See, e. g., Sections 115.557 and 115.-577, supra, prescribing highly abbreviated time limitations for filing election contests, Sections 115.567 and 115.579, supra, prescribing highly abbreviated time limitations for contestees to file answer, Section 115.-581, supra, as to the celerity with which election contests must be heard at the trial court level, and Section 115.597, supra, as to the dispositional priority of election contests on appeal.

The contestants’ efforts to verbally masquerade their cause of action as something other than an action to contest the April 4, 1978, city sales tax election is nothing more than a belated, but unsuccessful, effort to circumvent the time requirements of Section 115.577, supra. The law would be naive if it failed to pierce this thinly disguised effort to bypass the admittedly stringent provisions of the Comprehensive Election Act of 1977. The integrity of the dual concepts of finality and conclusiveness of free elections would be fatally compromised if persons wishing to contest them could wait indefinitely or an inordinate length of time to do so.

Felker v. City of Sikeston, 334 S.W.2d 754, 755 (Mo.App.1960), steeped with footnoted authorities, has this to contribute to the matter at hand: “The appellate courts of this state have pointed out repeatedly that election contests did not exist and were unknown at common law, and that such contests are purely statutory.1 Since ‘(t)he right to contest an election is not a natural right, such as the right of life, liberty, and property, but exists, if at all, in the written laws of the state’ [Bradbury v. Wightman, 232 Mo. 392, 394, 134 S.W. 511(1)], the rule always has been that no election may be contested except as specifically authorized and provided by statute;2 . . . ”. Having concluded that the pleading nomenclature engaged in by the contestants could not hide the true nature of their cause of action, that of an election contest rather than an action for declaratory judgment, the trial court properly sustained the city’s motion to dismiss the amended petition as it was not timely filed pursuant to the mandate of Section 115.577, supra, of the Comprehensive Election Act of 1977.

Judgment of dismissal affirmed.

All concur.


author: KENNEDY, Judge.

text:
    Alice M. SCHMIDT, Plaintiff-Respondent, v. Robert J. SCHMIDT, Defendant-Appellant.
    No. KCD 30565.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    Douglas A. Dowell, Independence, for defendant-appellant.
    Richard J. Southall, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

The present case is an appeal from an order of the Circuit Court of Jackson County changing the custody of 11-year-old Victoria Lynn Schmidt from her father, Robert J. Schmidt, to her mother, Alice M. Urena. The order of the court also fixed child support payable by the father to the mother at $150 per month, and provided for visitation to the father. The hearing was held October 2, 1978, and the order was entered that day.

Robert and Alice were divorced October 15, 1973, and Victoria Lynn’s custody was given to her mother at that time. Then in the spring of 1975 Alice was suffering from a period of depression, connected with alcoholism, and Victoria Lynn’s custody was transferred to Robert upon his motion to modify. That modification was not contested by Alice and the order was entered on June 10, 1975. More of that modification later.

On November 18, 1976, Alice married Richard Urena, a retired, partially disabled former member of the United States Marine Corps. He was 46 years old at trial time. Mr. Urena had an 11-year-old son by a previous marriage who lived with him and Alice. He received retirement and disability pay which totals approximately $840 a month.

About three weeks before the trial, Alice and Mr. Urena, along with David, had moved to a 20-acre tract near El Dorado Springs, Missouri, where they had some hogs and chickens. Alice was not employed outside the home and intended to spend full time at home. Mr. Urena expected to devote his full time to the operation of the farm. El Dorado Springs is 100 miles from Kansas City.

They had a six-room house on the farm, where Vickie, if she came to live with them, would have her own bedroom. It had modern facilities. "She would attend the El Dorado Springs public schools. Alice said the school system had a Triple-A rating. Vickie would be transported to school, a distance of eight miles, by the school bus.

Before moving to the farm, Mr. Urena and Alice had operated a bar in Kansas City, Kansas. Alice had worked full time in the bar. They had sold the bar and had nothing further to do with it. The proceeds from the sale of the bar were used to purchase the farm. They had paid $6,000 down and owed between $18,000 and $19,000 on the farm, payable in monthly payments of $200.

Although the Urenas had no church affiliation, they had been attending a Church of God located near the farm, Alice said. She also said she would take Vickie to the Catholic Church at El Dorado Springs on Sunday “if she wanted to continue to go to the Catholic Church”.

Alice testified that she had had an alcohol problem. She had gone through an alcoholic center in January of 1978, and had not been intoxicated since that time. , Until a time about three months before the trial, she had been on Antibuse. She had also attended Alcoholics Anonymous meetings, although not since their move to El Dorado Springs. She had gone at some time to a marriage counselor because of the strain her drinking was putting on her relationship with Mr. Urena. Alice is 41.

Mr. Schmidt lived in Independence, Missouri, with his parents. He worked for General Motors in Leeds, a night shift, and his net earnings were a little over $250 per week. When he got Vickie’s custody in 1975, her teeth were in bad condition and he had to spend $750 in dental costs for retainers. Robert took her to Girl Scouts, bowling, volley ball, skating, and to occasional shows of the Walt Disney variety. She was doing very well in school, although she had been doing poorly before the 1975 transfer. She attended Holy Family School in Independence. In caring for Vickie, Robert was assisted by his mother. During the previous summer — 1978—Robert had built a swimming pool for Vickie, as a reward for her wearing the retainer on her teeth. Robert explained, “I felt that this would show her that doing the right thing she can have a few things”.

Alice testified to some difficulties and frustrations in seeking to exercise her visitation rights. Some tension developed over the fact that Alice would take the child with her to the bar where she worked, a practice which Robert objected to. Vickie, in an in-camera conference with the court, said that on those occasions she would stay behind the counter — “nobody could get to me”, Vickie said — or in a back room or in the bathroom. A second cause for disagreement was Alice’s not getting Vickie off to church on Sunday mornings. Alice, according to Vickie’s report to her father, would sleep until noon and Vickie would miss church. At one time during the summer of 1978 a quarrel over this subject took place when Alice came to pick up Vickie for visitation. Robert undertook to deny permission for Vickie to accompany her mother, and he twisted Alice’s arm. Vickie’s tears caused him to yield and the visitation was permitted.

Both Robert and his mother testified that Alice was sporadic in her contacts with Vickie,. sometimes going three or four weeks without calling or seeing her. Alice would sometimes call for visitation on short notice when Vickie had other plans, Robert said, and sometimes Vickie herself would fail to return her mother's calls. They insisted that they had not purposefully stymied Alice’s visitation with Vickie.

Robert, as earlier stated, lived with his mother and father in a two-bedroom home. His parents occupied one bedroom and Vickie the other, while Robert slept in the basement. His mother was 67, his father 71. Both worked part-time outside the home, the mother at a convent and the father at St. Mary’s School. His mother testified at the trial. She spoke of , helping Vickie with her homework and of sponsoring a birthday party for her. Evidently the general management of the household fell to her.

Robert said that Vickie was doing well in school, and has a number of friends and has “all kind of girl friends”. Nine of them had attended a birthday party for her on the day before the trial, and eight or nine were often at her house playing with her in the swimming pool.

Robert had taken Vickie for a series of conferences with “one of them places over here where they try to help the child balance out on the effect of a divorce situation”. Each session included 30 minutes with Vickie and 30 minutes with Mr. Schmidt.

In a poignant in-camera conference between the trial judge and Vickie, only the court reporter being present, Vickie expressed a desire to live with her mother. In response to the court’s question she said: “I think I should; I'm getting to the age where I needed my mother; and my grandma don’t tell me too much ... I want to live with my mom for a little while, because I have been living with my dad a lot. My dad doesn’t want me to; he says I should be in school. She, like if I say I don't want to go to school, she says it’s okay. She don’t want me to stay with him for a little while. But I have been staying here since December 1st, four years; and I feel like I should be with my mom for a little while and — a couple of years and stay the summers with him ... I have been down there (to the farm) before; and it’s pretty neat . . . and I want to go with her for a little while. ... I think I should get to live there a little while; I don’t get to go there very much; I don’t like that too much ... I need a mother; you know what I mean?” The desire to live with her mother was repeated almost to the point of insistence.

The court order, as noted above, sustained the motion to modify and ordered primary custody of Vickie placed in her mother, Alice, and fixed child support payable by the father to the mother at $150 per month. Visitation to the father was set at two weekends per month during the months of September through May, and six weeks during the months of June through August.

The change of circumstances in this case do not justify the change of custody from the father to the mother. There is value in a child’s being kept with the parent who now has custody, as against uprooting her and transplanting her in a new home. Clouse v. Clouse, 545 S.W.2d 402, 407-8 (Mo.App.1976); Klaus v. Klaus, 509 S.W.2d 479, 481 (Mo.App.1974). For that reason, the cases emphasize the need for a showing of a significant change of circumstances directly affecting the welfare of the child in order to justify a custody change. The change in circumstances must be such as to give definite promise that the custody change will benefit the child in a substantial way. In re Marriage of Britton, 574 S.W.2d 475 (Mo.App.1978); Lickteig v. Goins, 458 S.W.2d 596, 599 (Mo.App.1970). The custody change now under review trades a proven stability and a seriously purposed, disciplined kind of child-rearing for an unknown and a dubious situation. The mother is an arrested alcoholic. Her still young marriage to Mr. Urena has suffered some strain. At trial time they were only a few weeks removed from the operation of a bar where the child had been kept by her mother a good many late hours behind the counter, in a back room or in the bathroom. There is evidence of an absence of parental discipline by the mother. According to Vickie, her mother says “it’s okay” if she says she wants to miss school. She had missed 18 or 19 days of school during the year her father got custody changed from her mother, before the custody change. During that period, Alice and Vickie seem to have been living an- unsettled, pillar-to-post existence. While operating the bar, the mother would sleep till noon on Sunday, and Vickie would miss church. It raises questions about her taking Vickie to El Dorado Springs each Sunday, to the nearest Catholic Church, as she said she would do if she got her custody. The disposal of the bar and reestablishment in a rural setting may have changed all that, but it was too soon to tell at trial time. Lickteig v. Goins, supra at 600; S_ v. G_, 298 S.W.2d 67, 77 (Mo.App.1957); Irvine v. Aust, 193 S.W.2d 336, 341-2 (Mo.App.1946).

The father, on the other hand, with his parents’ help, has worked with serious purpose at the task of rearing Vickie and meeting all her needs. Our statement of facts shows, and we do not need to repeat, the facts which support that conclusion.

Vickie’s desire to live with her mother is entitled to some weight at age 11, but it is not decisive. Engler v. Engler, 455 S.W.2d 36, 41 (Mo.App.1970); Graves v. Wooden, 291 S.W.2d 665, 669 (Mo.App.1956). It seems to be based in part upon the novelty of the new farm situation and upon a less structured life under her mother. As she grows older, her desires may be accorded more weight.

The judgment is reversed and the cause remanded for a new decree, which should provide for primary custody to remain in the father, with visitation to the mother one weekend each month and one month during the summer, with such other provisions as will serve the best interests of the child and, secondarily, the convenience of the parties. Provision will need to be made for the school holidays, transportation between El Dorado Springs and Kansas City and the like.

All concur.


text:
    STATE of Missouri, Respondent, v. Jesse R. SMITH, Appellant.
    No. KCD 30600.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      A. James Snider, former Asst. Public Defender, 13th Judicial Cir., Gregory & Snider, Montgomery City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged as a second offender with driving while intoxicated— third offense. He was found guilty by a jury and in due course the trial court assessed his punishment at four years confinement in the Missouri Department of Corrections and sentence and judgment were pronounced accordingly.

A single point, sharply drawn, is relied on by defendant on appeal — inapplicability of the Second Offender Act to the third offense of driving while intoxicated.

As the driving offense for which defendant stood charged occurred on May 2, 1978, and trial thereof commenced and concluded on September 6, 1978, Section 564.440, RSMo 1969 (driving while intoxicated) and Section 556.280, RSMo 1969 (Second Offender Act), must be reckoned with even though both were repealed effective January 1, 1979, by virtue of enactment of the new Criminal Code. Parenthetically, any decision construing either or both of these repealed statutory sections, for obvious reasons, is immediately destined for the backwaters of the mainstream of the law.

Section 564.440, supra, read as follows:

“564.440. Driving motor vehicle while intoxicated — penalties—evidence of prior convictions, how heard
No person shall operate a motor vehicle while in an intoxicated condition. Any person who violates the provisions of this section shall be deemed guilty of a misdemeanor on conviction for the first two violations thereof, and a felony on conviction for the third and subsequent violations thereof, and, on conviction thereof, be punished as follows:
(1) For the first offense, by a fine of not less than one hundred dollars or by imprisonment in the county jail for a term not exceeding six months, or by both such fine and imprisonment;
(2) For the second offense, by confinement in the county jail for a term of not less than fifteen days and not exceeding . one year;
(3) For the third and subsequent offenses, by confinement in the county jail for a term of not less than ninety days and not more than one year or by imprisonment by the department of corrections for a term of not less than two years and not exceeding five years.

Evidence of prior convictions shall be heard and determined by the trial court, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon.” (Emphasis added.)

Section 556.280, supra, read as follows:

“556.280. Second offense, how punished
If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or • imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows:
(1) If the subsequent offense be such that, upon a first conviction, the offender could be punished by imprisonment in the penitentiary, then the person shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.
(2) Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.
(3) If the prior conviction is. appealed then this section does not apply until after the judgment is affirmed or the appeal is dismissed; except, that a subsequent offense committed after a conviction in the trial court but prior to affirmance of the conviction or dismissal of the
appeal shall, after the affirmance or dismissal, be pleadable and provable as a prior conviction under the provisions of this section.” (Emphasis added.)

An abundance of evidence was presented by the state from which a rational trier of fact could find the essential elements of driving while intoxicated beyond a reasonable doubt. It is also appropriate to note that prior to the submission of the case to the jury, the trial court, out of the hearing of the jury, heard, determined and entered appropriate findings that defendant had been convicted on two previous occasions of driving while intoxicated and had previously been convicted of burglary and stealing and imprisoned therefor in the penitentiary.

Defendant’s single point on appeal arises in a rather unusual manner. Instruction No. 4, the state’s verdict directing instruction, omitted any mention of the range of punishment for the crime of driving while intoxicated — third offense. The jury appropriately responded by returning a verdict which found defendant guilty as submitted in Instruction No. 4 but omitted assessing his punishment. Defendant faults Instruction No. 4 for failing to advise the jury as to the permissible range of punishment in the event it found him guilty, thereby effectively removing the assessment of punishment from the jury and placing it in the bosom of the trial court pursuant to the Second Offender Act. As a natural corollary, defendant charges that the sentence fixed by the trial court was void because the Second Offender Act was inapplicable, State v. Myers, 470 S.W.2d 803, 805 (Mo.App.1971), and he was prejudiced thereby because the jury might have imposed a lesser punishment, State v. Wiley, 412 S.W.2d 485, 487 (Mo.1967), and State v. Myers, supra.

Because of. a total absence in this state of anything which even remotely approaches being a counterpart to the Congressional Record, the construction of legislative acts in justiciable controversies becomes, simultaneously, one of the most elusive and difficult obligations borne by the judiciary. To aid in the disposition of this solemn obligation, rules or canons of construction have judicially evolved. A synoptic view of the reigning rules or canons of construction, whose numbers are legion, give several a decisively applicable tone.

One particular cardinal rule or canon of construction stands out with stark clarity — penal statutes are to be strictly construed, against the state and liberally construed in favor of the accused. State v. Chadeayne, 323 S.W.2d 680, 685 (Mo.banc 1959); and State v. McClary, 399 S.W.2d 597, 599 (Mo.App.1966). Two other significant rules or canons of construction command positions of prominence in this case. It is presumed that every word, clause, sentence and provision of a statute was intended by the legislature to have effect and be operative. State ex rel. St. Louis Die Casting Corporation v. Morris, 358 Mo. 1170, 219 S.W.2d 359, 362 (1949); and Graves v. Little Tarkio Drainage Dist. No. 1, 345 Mo. 557, 134 S.W.2d 70, 78 (1939). Conversely, it will not be presumed that the legislature inserted idle verbiage or superfluous language in a statute. Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114, 118 (1932); State ex rel. Kelsey v. Smith, 335 Mo. 1125, 75 S.W.2d 832, 834 (Banc 1934); Bussmann Manufacturing Co. v. Industrial Commission, Division of Employment Security, 335 S.W.2d 456, 460 (Mo.App.1960); and State ex rel. May Department Stores Company v. Weinstein, 395 S.W.2d 525, 527 (Mo.App.1965).

Certain inroads on the construction task facing this court have already been made. State v. Wiley, 412 S.W.2d 485, 487 (Mo.1967), holds that Section 556.280, supra, is ‘“highly penal and * * * must be strictly construed’ ”. See also State v. Lucas, 520 S.W.2d 609, 611 (Mo.App.1975). State v. Pfeifer, 544 S.W.2d 317, 321 (Mo.App.1976), holds that “[t]he offense under Section 564.440 is driving while intoxicated, all of the balance of the statute being referable to the question of punishment and the degree of the offense committed.”

The above comprise a legal matrix from which to determine whether a conviction for driving while intoxicated — third offense, Section 564.440, supra, invoked the sentencing procedure of the Second Offender Act, Section 556.280, supra.

In the context raised by defendant, the key to construing Section 556.280, supra, lies in the following language contained in paragraph (1): “If the subsequent offense be such that, upon a first conviction, the offender could be punished by imprisonment in the penitentiary . . ”. (Emphasis added.) The words, “upon a first conviction”, obviously qualify the preceding term, “subsequent offense”, and address it in terms of a single statutorily prescribed offense even though it be an offense carrying enhanced punishment running the gamut from a jail sentence or fine, or both, to imprisonment in the penitentiary for successive convictions. Otherwise, the qualifying words are of no effect, are inoperative, and constitute idle verbiage and superfluous language. If the preceding term, “subsequent offense”, had been intended by the legislature to refer to successive violations of a statutorily prescribed offense which could be punished by imprisonment in the penitentiary as opposed to a jail sentence or fine, or both, for the first violation of the same statutorily prescribed offense, then it would have been a simple matter to have achieved such a result by excluding or eliminating the words, “upon a first conviction”. The crucial portion of paragraph (1) of Section 556.280, supra, could have simply read “If the subsequent offense be such that the offender could be punished by imprisonment in the penitentiary . . . ”. This would have excluded all misdemeanors from and included all felonies within the sentencing procedure perceived by the Second Offender Act, the widely accepted view of the range of applicability of Section 556.280, supra. See: State v. Bryant, 538 S.W.2d 340, 342 (Mo. banc 1976); and State v. Myers, 470 S.W.2d 803, 804 (Mo.App.1971). However, as previously noted, if the words, “upon a first conviction”, serve any purpose and possess any meaning whatsoever one must necessarily conclude that the legislature also intended to exclude any statutorily prescribed offense which might contain its own provisions for enhancing punishment ranging from jail sentences or fines, or both, to imprisonment in the penitentiary for subsequent convictions.

A literal application of the Second Offender Act (Section 556.280) precludes activation of its prescribed sentencing procedure when the “subsequent offense”, as here, is driving while intoxicated in violation of Section 564.440, supra, even though a third offense is involved. A tinge of legal irony surfaces when one considers that a single event, driving while intoxicated for a third time, could otherwise have the dual effect of simultaneously (1) creating a felony where otherwise the conduct would constitute a misdemeanor and (2) invocation of the sentencing procedure of the Second Offender Act so as to substitute judicial assessment of punishment for jury assessment. Under such circumstances, the possibility of double enhancement of punishment for a single statutorily prescribed offense is more than a faint specter. It is logical to assume that the legislature chose to avoid this ironical result by excluding any statutorily prescribed offense which might contain its own provisions for enhanced punishment for subsequent violations. The view that a penal statute proscribing certain conduct and also providing for enhanced penalties for subsequent violation may be such a complete code of penalties as not to contemplate or admit of application of the Second Offender Act is not as novel as it may initially sound. See, e. g.: State v. Lujan, 76 N.M. 111, 412 P.2d 405, 408 (1966); State v. Lard, 86 N.M. 71, 519 P.2d 307, 310 (N.M.App.1974); and State v. Edwards, 317 S.W.2d 441, 448, footnote 1 (Mo.banc 1958).

Judgment reversed and cause remanded for new trial without application of Section 556.280, supra.

All concur.


author: DIXON, Presiding Judge.

text:
    Nancy DICKSON, Tommy Dickson, Jimmy Dickson, Gene Dickson, Larry Dickson, and Esther Coffman, Plaintiffs-Appellants. v. Floyd DICKSON, Melba Whitney, Candy Dassero, and Peggy Benkey, Defendants-Respondents.
    No. KCD30636.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      James A. Rahni, Carrollton, for plaintiffs-appellants.
    Christian F. Stipp, David Thomas, Stipp & Thomas, Carrollton, for defendants-respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Plaintiffs appeal a trial court order dismissing a petition for partition of real estate on defendants’ motion.

The sole issue which requires decision is whether partition is barred, pursuant to § 528.130 RSMo 1978, under the will by which plaintiffs and defendants acquired title.

Before recitation of the facts, a preliminary procedural issue needs resolution. After plaintiffs’ petition was filed, defendants’ motion to dismiss was filed, to which was attached a copy of the Will of Jess Dickson. Admittedly, this will was the source of title of both plaintiffs and defendants. Plaintiffs assert that since the motion was not verified, the will was not before the trial court and is not before this court and that this court is confined to the face of plaintiffs’ petition in testing its sufficiency vis-a-vis the motion to dismiss.

Rule 55.27(a) specifically covers the issue. In pertinent part, that rule provides:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.”

Defendants’ motion did assert a failure to state a claim upon which relief might be granted, and it was filed over two years prior to the court’s ruling on the motion. The plaintiffs filed nothing to deny effect to the will and certainly two years provided a reasonable opportunity to do so. The motion, the petition, and the will are to be treated as a motion for summary judgment under the Rule. Kelly v. Schnebelen, 545 S.W.2d 332, 334 (Mo.App.1976). Plaintiffs claim that the motion reaches only the face of the petition is refuted by American Family Insurance Group v. Wilcoxson, 572 S.W.2d 222, 223 (Mo.App.1978), which in dealing with a similar argument said:

“Plaintiff argues that a motion to dismiss is tested only against the petition, and on its face the petition is immune from the real party in interest defense because it asserts the plaintiff was an assignee. To countenance this argument would allow an imposter plaintiff to bootstrap himself into a lawsuit through the allegations in his petition and defer the discovery of his imposition until after the trial proper has begun and after unnecessary investment of time and expenditure. To require such a dilatory disposition of a potentially dis-positive issue would violate the announced policy of the Missouri Rules of Civil Procedure which is to ‘secure the just, speedy and inexpensive determination of every action.’ Rule 41.03.”

Considering then the petition, the motion, and the will, as well as the undisputed factual background supplied by the briefs, the following factual matrix emerges. Jess Dickson died December 16, 1976 and was the owner of 189 acres described in the petition. No suit was filed to contest his will, and the time for such filing has expired. The pertinent portions of his will are as follows:

“ITEM IV
All of the farm land that I may own at the time of my death is not to be sold until Fifteen (15) Years after my death. Said farm land is to be farmed by Nolan Whitney, or his son, on the rental basis they are paying at the time of my death, so long as they wish to farm said land during this 15 years. My Executor or his successor shall have the right to manage this land, collect all rentals, and after the payment of all expenses, pay the profits, at the end of each year, in equal shares to my nephews or nieces living, or to their bodily heirs. At the end of this 15 year period this land is to be sold by my Executor or his successor for the best price obtainable, without any order, or decree from any Court and the proceeds to be divided equally between all of my nephews or nieces living at the time of said sale or to their bodily heirs.
ITEM V
All the rest, residue and remainder of my property whether real, personal or mixed and wheresoever the same may be located, I give, bequeath and devise, equally, share and share alike to .my nephews and nieces, namely:
1 — Tommy Dickson
2 — Jimmy Dickson
3 — Jean Dickson
4 — Larry Dickson
5 — Nancy Dickson
6 — Floyd Dickson
7 — Melba Whitney
8 — Esther Coffman
9 — Virgil Miller
Should any of my nephews or nieces predecease me, or die before the final distribution of my estate, and without leaving bodily heirs, the share of said deceased nephew or niece shall be divided equally between the living nephews or nieces, or their bodily heirs. All of my property covered by this ITEM V of my will shall be sold by my Executor, as soon after my death as convenient, at the best price obtainable, either at private or public sale, without any order or decree from any Court. My said Executor is hereby authorized to sign all deeds, contracts and other necessary instruments to sell any real estate in my estate, and after said property is sold, the cash obtained is to be divided, as provided for in ITEM V of my will, within one year after this will is admitted to probate."

Plaintiffs’ petition asserts Virgil Miller is deceased, and his two daughters have survived; the other eight nieces and nephews have survived.

Plaintiffs assert in their petition that the attempted restriction on the sale of the farm lands in Article IV is “null and void.” Defendants respond by saying that the plaintiffs have in their petition pleaded restrictions on sale and the language “null and void” following the statement of such restrictions is a legal conclusion to be disregarded. Defendant in effect is arguing plaintiff has pleaded himself out of court. Neither the issue of the validity of the restrictions on the sale in Article IV nor the narrow pleading point need be reached or decided.

The issue to be decided is whether the statement of a cause of action is shown by plaintiffs’ petition. The allegations are to be considered as true and the theory of the petition — that the fifteen-year delay in the sale of the land is void — is accepted.

Plaintiffs have not pleaded any theory of partition based upon an acceptance of the provision for lease of the real estate provided in ARTICLE IV of the will. If such a theory were pleaded, further questions would arise: first, as to the validity of the provision for lease itself, and second, whether an equitable conversion occurs at the time of the death of the testator or at the termination of the lease interest. The cases of Eneberg v. Carter, 98 Mo. 647, 12 S.W. 522 (1889) and Williams v. Lobban, 206 Mo. 339, 104 S.W. 58 (1907), would suggest that there may not be an equitable conversion until the time for the sale arrives when the sale is deferred. These cases involve executions and not the right to partition. The dispositive language of the wills is also more susceptible to a construction which would make the devise a direct devise to the beneficiary. More recent authority rules the issue of when the conversion occurs on the basis that there is no devise or bequest to anyone except the gift of the fund generated by the sale as in Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974), and Morris v. Stephenson, 128 Mo.App. 338, 107 S.W. 449 (1908). Nonetheless, these questions are not presented under the theory and factual allegations of plaintiffs’ petition.

It is well established in Missouri law that where multiple theories are available upon which a trial court could have based its judgment, if the appellate court finds the judgment to be valid on appeal under any one of those theories, the judgment will not be disturbed. Equity Mutual Insurance Co. v. Affiliated Parking Inc., 448 S.W.2d 909, 911-912 (Mo.App.1969) and Phoenix Insurance Co. of Hartford, Connecticut v. Chrysler Corporation, 534 S.W.2d 474, 475 (Mo.App.1975).

Even if the 15-year delay in the sale of the land pursuant to the will is ineffective and void as plaintiffs contend, a matter which is not reached or decided, the land is not subject to partition. No interest in land is granted to devisees under a will which unequivocally mandates a sale and division of the proceeds. Earney v. Clay, supra. Under either Article IV or Article V of the will, there is an absolute mandate to the executor to sell the real estate which constitutes an equitable conversion. Earney v. Clay; Hull v. McCracken, 53 S.W.2d 405, 405-406 (Mo.App.1932); Scott v. Dougan, 527 S.W.2d 680, 683 (Mo.App.1975).

Plaintiffs make some claim to a right to show facts which would constitute an equitable reconversion. Equitable conversion of the real estate into money continues until the actual conversion or until, by election of all the beneficiaries, there is a reconversion, which may take place at any time prior to the actual conversion. Griffith v. Witten, 252 Mo. 627, 646, 161 S.W. 708, 714 (1913). The election to accept the land in its original state and thus reconvert it, must be unanimous on the part of all the beneficiaries or devisees, Holmes v. Scott, 231 Mo.App. 690, 692, 105 S.W.2d 966, 967 (1937) and Kaufmann v. Kaufmann, 226 Mo.App. 172, 177, 43 S.W.2d 879, 881 (1931), except in those instances where the election of less than all could not possibly injure those not joining in the election. Gilbreath v. Cosgrove, 193 Mo.App. 419, 422, 185 S.W. 1181, 1182 (1916).

The plaintiffs’ petition makes no reference to the power of sale and a subsequent reconversion. From the notice of appeal, it may be gathered that at least three of the interests, out of the nine interests created by the will, do not agree to a reconversion of the personal estate to realty since the defendants named represent those three interests. What the argument amounts to is a theory conceived after briefing and asserted for the first time in this court.

The plaintiffs also allude to the will as ambiguous and assert they should be entitled to present the facts concerning the underlying dispute.. It may very well be that the will of Jess Dickson requires construction, but that construction cannot occur in a partition suit which is barred to plaintiffs by § 528.130 RSMo 1978.

The judgment is affirmed.

All concur.

      . Jean Dickson, named in the will, is one and the same person as Gene Dickson, a plaintiff in this case.


text:
    Harry Lewis FROCK, Respondent, v. Gerald H. GOLDBERG, Director of Revenue, et al., Appellants.
    No. WD 30785.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.
    John Ashcroft, Atty. Gen., Arnold R. Day, Asst. Atty. Gen., Jefferson City, for appellants.
    James A. Rahm, Carrollton, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   SOMERVILLE, Presiding Judge.

This is an appeal from an order of the Circuit Court of Carroll County, Missouri, directing Gerald H. Goldberg, Director, Department of Revenue (hereinafter Director), to reinstate Harry Lewis Frock’s (hereinafter Frock) driving privileges which had been suspended for 30 days because of “8 or more points being obtained within an 18 month period”.

The critical nature of the following dates and procedural events, from a dispositional standpoint, will subsequently become self-evident. Initially, cognizance is taken of the date of August 4,1978, same being the date upon which the Director suspended, effective September 1, 1978, Frock’s privilege of legally operating a motor vehicle for 30 days. Notice of the suspension was received by Frock on August 20, 1978. On August 30, 1978, Frock filed a petition in the Magistrate Court of Carroll County, Missouri, for review of the Director’s 30 day suspension order and also sought a temporary restraining order to hold the suspension in abeyance until there was a hearing on the merits and a final judgment entered. The magistrate judge assumed jurisdiction (albeit erroneously for reasons hereinafter set forth) over the subject matter, granted a temporary restraining order, and on October 20, 1978, entered judgment ordering, adjudging and decreeing that the temporary restraining order be and was made permanent and that the Director be and was ordered to reinstate Frock’s driving privileges.

On October 27, 1978, the Director appealed the October 20, 1978 judgment entered in the Magistrate Court of Carroll County to the Circuit Court of Carroll County. Although a temporary restraining order was never obtained in the Circuit Court of Carroll County, a judgment was rendered and entered by the Circuit Court of Carroll County on January 26, 1979, ordering, adjudging and decreeing the Director, so far as here pertinent, to reinstate Frock’s driving privileges.

The Magistrate Court of Carroll County, Missouri, was a separate, constitutionally established court until January 2, 1979, as Article 5, Section 27(2) and (3), Constitution of Missouri, adopted August 3, 1976, making it a division of the circuit court did not become effective until January 2, 1979.

The first of two points relied on by the Director on appeal is that the judgment rendered and entered by the Circuit Court of Carroll County, Missouri, is void for want of subject matter jurisdiction. Sustainment of the Director’s first point is fully disposi-tive of the appeal.

Want of subject matter jurisdiction is never waived, Sisk v. Molinaro, 376 S.W.2d 175, 177 (Mo.1964), and may be raised at any time, Rule 55.27(g)(3), Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840, 842 (1934), and Randles v. Schaffner, Director of Revenue, 485 S.W.2d 1, 2 (Mo.1972). As pointed out in Randles v. Schaffner, Director of Revenue, supra, at p. 2, “[i]t is elementary that where judicial tribunals have no jurisdiction to act, their proceedings are absolutely void, . . . ”.

Section 302.311, RSMo 1969, applicable and controlling during the entire time frame presented on this appeal provides, inter alia, that in the event a license is suspended by the Director, the licensee may appeal to the circuit court of the county of his residence for review of the administrative decision at any time within thirty days after notice that a license has been suspended. In conjunction therewith certain salient dates are reiterated — Frock received notice of suspension of his license on August 20,1978, and no pleading for review of its suspension, even under the most liberal view, was ever lodged in the circuit court of the county of his residence until October 27, 1978, same being a date far beyond the 30 days provided for in Section 302.311, supra.

The court in Randles v. Schaffner, Director of Revenue, supra, at pp. 2 and 3, held, with Section 302.311, supra, at hand and occupying the center of judicial attention, as follows: “Although Article V, Section 22 of the Constitution of Missouri guarantees the right to judicial review of administrative decisions, the legislature is authorized to, and did, provide a method of review by designating the court and the time within which such review should be sought. Such procedure having been established, failure to comply with the statute is jurisdictional.” (Emphasis added.)

When the holding of Randles v. Schaffner, Director of Revenue, supra, pertaining as it did to Section 302.311, supra, is superimposed on the facts of this case, only a moment’s reflection is required in order to properly conclude that the statutory procedure for review mandated by Section 302.-311, supra, with respect to the designated elements of court and time were not complied with by Frock and failure to do so deprived the Circuit Court of Carroll County of jurisdiction over the subject matter and, concomitantly, its judgment was wholly void.

As the trial court should have dismissed the cause for want of jurisdiction, it is hereby ordered that the judgment below is reversed and the cause is remanded to the trial court with instructions to dismiss Frock’s petition for review for want of jurisdiction.

All concur.