text:
    STATE of Missouri, Respondent, v. Ronnie BARR, Appellant.
    No. KCD 29208.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15, 1978.
    Fred L. Slough, Well's, Eisberg, Slough & Connealy, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.

      Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Ronnie Barr was convicted of second degree murder, § 559.020, RSMo 1969, and sentenced to ten years confinement.

On this appeal Barr contends the court erred in excluding certain evidence. Affirmed.

Barr does not question the sufficiency of the evidence. There was sufficient evidence from which the jury could believe that Barr, Herman Barnett and Harvey Williams were inmates in the Jackson County Jail. In April, 1976, Harvey Williams testified he saw Barr, together with four other men enter Barnett’s cell. Williams stated he watched through the bars while the five men beat Barnett. In addition, the men threw Barnett to the floor and kicked him, broke a food tray over his head, and one of the men produced a razor blade and severed one of Barnett’s ears.

During the cross-examination of Williams, Barr’s counsel did not inquire into Williams’ homosexual activities. At the conclusion of the State’s evidence, the prosecuting attorney moved for a protective order to prevent the defense from inquiring into the reputation which Williams bore in the jail for homosexual activities. Barr’s counsel stated a basis of this evidence was to show a possible motive on the part of Williams to commit an assault upon Barnett in connection with homosexual activities. There was no evidence introduced to indicate Williams had in fact committed any assault upon Barnett, nor that Williams had had any homosexual contact with Barnett whatever.

The court granted the protective order and requested the defense not to question its witnesses with respect to Williams’ character of his reputation as to homosexuality.

On this appeal Barr contends the court erred in failing to allow testimony concerning the reputation of Williams because such evidence, together with evidence Barnett was found with his pants down, would show Williams was involved in a sexual assault upon Barnett. Barr contends Barnett’s death was the result of Williams’ assault rather than one committed by Barr. The rule governing the admission of this evidence is stated in State v. Woods, 508 S.W.2d 297, 300[3] (Mo.App. 1974) as follows:

Evidence that another person had an opportunity or motive for committing the crime for which the defendant is on trial is not admissible absent proof that the other person committed some act directly connecting him with the crime. State v. Umfrees, 433 S.W.2d 284, 287[4] (Mo.banc 1968).

The court in Woods also quoted the rule from Umfrees, supra:

“The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. . .

Here there was no evidence to indicate Williams committed any act which would connect him with the assault committed upon Barnett which resulted in his death. For that reason the court correctly excluded evidence which would simply show the reputation which Williams bore.

Barr next contends the court erred in sustaining the prosecutor’s objection to a question propounded to Williams. In this question Barr’s counsel inquired of Williams if he had ever had a mental examination in connection with any of the cases against him. The court sustained this objection but indicated this ruling might be different if counsel were able to lay a proper foundation. In his brief Barr states the purpose of this question was not to challenge the competency of Williams but to elicit facts touching upon his credibility and ability to relate truthfully. No offer of proof was made after the court sustained the objection nor did Barr attempt to lay any foundation to show the relevance or materiality of the evidence sought.

In State v. Davis, 515 S.W.2d 773, 775[2] (Mo.App.1974) this court held it is not error to exclude evidence “unless the party seeking its admission states the nature of the testimony he seeks to elicit and the purpose for which it is offered.” Here no effort was made to explain how the evidence sought to be elicited concerning the fact that examinations had been made would be relevant or what information this would produce which would make such evidence admissible. Since the relevance of this inquiry was not readily apparent, it was not error to exclude it in the absence of an offer of proof.

Further, Barr’s counsel now states the purpose was not to attack the competency of Williams but only to attack his credibility and ability to testify truthfully. No questions were propounded which would produce the result desired. No error is shown in sustaining the objection to this question.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Russell Charles WILLIAMS, Defendant-Appellant.
    No. KCD 29260.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a conviction by a jury of driving a motor vehicle while intoxicated, third offense. The jury did not agree on punishment, and the court sentenced the defendant to five years in the penitentiary. Defendant raises a single issue, the sufficiency of the evidence to support the conviction. Before stating the evidence adduced, it is noted that the standard of review on an issue of sufficiency is that the evidence most favorable to the verdict is considered as well as all inferences favorable to the verdict. State v. Roberson, 548 S.W.2d 280 (Mo.App.1977); State v. Old-ham, 546 S.W.2d 766 (Mo.App.1977).

The state’s evidence consisted of the testimony of a police officer. That officer testified that while he was on duty traveling westbound on a two-lane highway, he observed an automobile also westbound in front of him. He observed the vehicle swerve completely into the eastbound lane, then swerve back across the westbound lane onto the gravel shoulder, and finally move back into the westbound lane. He turned on his red light following the defendant who pulled over in about a quarter of a mile. As the driver got out of his car, he stumbled and fell onto the side of the car. The officer noticed a strong odor of intoxicants. The officer then performed field sobriety tests which required the defendant to walk a straight line and to perform the finger-to-nose test. The defendant walked a straight line, but tipped forward and stumbled three times, almost falling when instructed to stop. The defendant refused to perform the finger-to-nose test and uttered an obscenity in response to the request. The officer testified that the defendant was difficult to understand because he was thick tongued, slurred of speech, and mumbled and stuttered. The officer stated that in his opinion the defendant was highly intoxicated. The defendant told the officer he had been drinking bourbon and had started drinking at noon that day. The arrest was made at approximately 9:30 p. m.

Defendant argues that the evidence was purely circumstantial and that it did not exclude every reasonable theory of innocence so that the evidence was insufficient to prove guilt. The evidence in this case is not circumstantial. Evidence of intoxication is not circumstantial where the fact of drunkenness was within the direct personal observation of the arresting officer. Kansas City v. Douglas, 483 S.W.2d 760 (Mo.App.1972). Evidence obtained by any one of the five senses is direct evidence. State v. Seaturro, 509 S.W.2d 491 (Mo.App. 1974). The evidence in this case is sufficient to sustain a conviction of driving while intoxicated. City of Trenton v. Lawrence, 548 S.W.2d 278 (Mo.App.1977); Kansas City v. Douglas, supra. Both of these cases find sufficiency on evidence of similar physical conditions testified to by the arresting officer. The weight and credibility of the officer’s testimony was for the jury. State v. Wright, 476 S.W.2d 581 (Mo.1972).

Judgment of conviction is affirmed.

All concur.


text:
    Carl W. PAXTON, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29346.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      Joe Hamilton Scott, Public Defender, William F. Bauer, Asst. Public Defender, Fifth Judicial Circuit, St. Joseph, for petitioner-appellant.

      John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Appeal from a denial of a writ of error coram nobis to vacate an already completed two-year sentence for stealing. The petitioner pled guilty to the stealing charge in 1964. Petitioner is now serving a life sentence on an unrelated conviction. The trial court, after evidentiary hearing, denied the writ of error coram nobis.

The appeal asserts three grounds for reversal: first, that the information charging stealing was fatally defective; second, his plea was unknowing, unintelligent, and involuntary; third, that the trial court failed to comply with Rule 25.04.

The first claim is predicated upon the assertion that the information fails to allege whether the stealing was by deceit or by lack of consent and that such a failure to so charge as to the manner of taking makes the information fatally defective, depriving the court of jurisdiction. The rule that an information which fails to charge a crime is a nullity and cannot support a conviction is well settled. State v. DiLiberto, 537 S.W.2d 671' (Mo.App.1976). The argument, however, fails in its premise that the information is so fatally defective that no jurisdiction attached. The case relied upon, State v. Newhart, 503 S.W.2d 62 (Mo.App.1973), holds to the contrary. In Newhart, the court held that the information which did not specify the manner of stealing was defective in not apprising the defendant of the particulars, but specifically and unequivocally rejected the argument that the information in Newhart was so fatally defective that the trial court was without jurisdiction. The information in the instant case likewise was not so fatally defective as to deprive the trial court of its jurisdiction.

The petitioner testified at the evidentiary hearing to a litany of complaints as to his lack of knowledge and understanding of his rights in entering the plea. According to the petitioner, if his testimony be believed, he was not informed by court or counsel of a single constitutional right. The evidence on the part of the State did not rebut each of these allegations. The record of this 1964 plea hearing is not as complete as is now the practice. The State’s evidence and the record at the time of the plea tend to show that the petitioner was advised in the Magistrate Court and in the Circuit Court of the charge against him. The circuit judge read the charge and explained the right to a jury trial. The range of punishment was disclosed. Counsel had been appointed, was present, and participated in the proceedings. Before sentencing, the prosecuting attorney indicated he was recommending probation, and it is a fair inference from the whole record of the plea hearing that the proceedings were on the basis of a plea bargain between the prosecutor and the appointed counsel.

In a coram nobis proceeding, the burden of proof is on the petitioner, and he must establish his allegations by a preponderance of the evidence. State v. Cannon, 532 S.W.2d 804 (Mo.App.1975); Howard v. State, 493 S.W.2d 14 (Mo.App.1973). Appellate review of such proceedings is limited to a determination of whether the trial court’s findings, conclusions, and judgment are clearly erroneous. Stoner v. State, 507 S.W.2d 80 (Mo.App.1974).

The trial court had a right to disbelieve the testimony of the petitioner. Cannon, supra. There was certainly a basis for that disbelief, for the petitioner testified to a failure on the part of the judge at the plea hearing to advise him of his rights in any respect. He denied, for instance, he was advised of his right to a jury trial, a statement which the record of the plea hearing unquestionably refutes. The finding of the trial court on this branch of the petitioner’s claim is not clearly erroneous. Cannon, supra; Stoner, supra.

Finally, petitioner claims that the trial court erred in finding that his guilty plea had been voluntarily entered because the court that took the plea failed to comply with Rule 25.04 which was in effect at the time the plea was entered. The transcript shows that the judge did not ask any questions. However, the lack of strict compliance with Rule 25.04 does not require that a guilty plea be set aside or vacated unless it can be established by a preponderance of the evidence that the plea was entered involuntarily or without the defendant understanding the nature of the charge. State v. Mountjoy, 420 S.W.2d 316 (Mo.1967). When making a determination in a post-conviction proceeding whether or not a guilty plea is made voluntarily and with an understanding of the nature of the charge, the court is not limited to a consideration of what appears in the record of the guilty plea, but it also may consider evidence produced at the hearing on the motion to vacate. Flood v. State, 476 S.W.2d 529 (Mo.1972); Jones v. State, 494 S.W.2d 659 (Mo.App.1973). It should be noted that the plea was entered prior to the United States Supreme Court decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires a greater degree of questioning by the trial judge at the time of the plea than was given at petitioner’s guilty plea. However, Boykin is not to be applied retroactively. Crego v. State, 447 S.W.2d 550 (Mo.1969).

As pointed out earlier, the evidence at the hearing revealed that the same trial court that accepted the plea had questioned the petitioner during an earlier arraignment about his understanding of the nature of the offense and had informed him of his constitutional rights. Further, the prosecutor testified that no one had coerced the petitioner into entering the plea, and the petitioner did not refute this assertion during the evidentiary hearing.

From the foregoing, it is clear that the trial court was warranted in finding that the petitioner did not establish that his plea was entered involuntarily or without sufficient knowledge of the charge against him by a preponderance of the evidence. Thus, the decision of the trial court holding that the plea was properly entered despite the absence of strict compliance with Rule 25.04 is not clearly erroneous. Mountjoy, supra; Stoner, supra.

The disposition of the merits of the claim to relief makes it unnecessary to consider the claim as to the effect of the prior conviction.

The trial court’s denial of the writ is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special ■Judge.

text:
    Clyde D. GABBARD, Plaintiff-Appellant, v. STEPHENSON’S ORCHARD, INC., Defendant-Respondent.
    No. KCD 28460.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      Stephen G. Scholl, Thomas J. Conway, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for plaintiff-appellant.
    Richard H. Heilbron, Heilbron & Powell, Kansas City, for defendant-respondent.
    Before ROBERT R. WELBORN, Special Judge Presiding, SHANGLER, J., and ANDREW J. HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special ■Judge.

Appeal from judgment for defendant on verdict directed at the close of plaintiff’s case in action for damages for personal injuries sustained as a result of the collapse of a ladder. The question is whether, under the law and the evidence, plaintiff was entitled to have his case against defendant submitted to the jury under the theory of strict liability. Reversed and remanded.

Plaintiffs action was against Stephenson, the supplier, and O’Connor Ladder Co., Inc., the manufacturer of the ladder. He alleged: that on September 30, 1971, he was a business invitee on premises owned and operated by Stephenson; that Stephenson furnished him a ladder manufactured by O’Connor; that the ladder was of defective design and construction; and, as a result, the ladder collapsed and plaintiff was injured.

On the morning of September 30, 1971, plaintiff read a newspaper advertisement inviting the public to pick apples at Stephenson’s Orchard. He left home around 10:30 a. m., and went directly to the orchard. At the time of his injury, he was using a three-legged aluminum ladder. He shook the ladder before he mounted it and it seemed firm. He climbed to the third step from the top (the fifth step from the bottom) and was looking and reaching upward for apples, picking with his right hand and putting them in a bucket sitting on the top step, when he felt the ladder going, causing him to fall. He crawled to his car, drove to the main gate where he reported the accident and paid for the apples he had picked, and then drove to the main house at the Orchard, from which he was driven to a hospital.

Prior to the fall, the ladder was sitting on dry, hard ground; none of the steps was loose as he climbed them. When the ladder went out from under him, he thought it went forward or frontwards. It went straight down but he did not land on any part of the ladder, and it was to the side of him after the fall. He observed the ladder part with its steps flat on the ground; he did not recall the location of the third leg. He did not notice any part of it to be bent. Before he mounted the ladder, the third leg was four or five feet away from the two front or step legs. He did not lose his balance until after the ladder started down; he did not jump. He assumed the ladder bent or broke, but did not know because he did not inspect it after it went down; he did not touch the ladder after the accident.

He was not instructed in the use of the ladder and he did not know it was dangerous. He had never climbed such a ladder before and did not ask for instructions on its use. He could have asked the gate man for instructions; he had plenty of time to inspect. All he knows is that he was reaching upward and the ladder went out from under him. He did not lean out to the right or left of the ladder.

Stephenson had 31 such ladders which it supplied to its business invitees, all of which were manufactured by O’Connor and acquired by Stephenson between 1964 and 1969. The ladder used by Mr. Gabbard was two or three years old at the time of his accident.

Theodore Clemens had a similar accident August 13, 1970, while picking peaches at Stephenson’s. He was halfway up a similar three-legged ladder, reaching upward with one hand, when the ladder collapsed. He went one way; the ladder the other. He also had shaken the ladder before climbing it, and it seemed sturdy. His recollections were that the ladder tipped sidewise; that a tripod ladder has a tendency to collapse, and that it will rock more than a four-legged ladder. He did not overbalance it by leaning out one way or the other.

Elizabeth Sellars, age 68, fell from a similar ladder at Stephenson’s in August, 1971. She ascended the ladder to about the third step. It started to tip; she fell to the right and jumped. She had never seen a three-legged ladder before. She felt such a ladder would balance better if it had two back legs.

Dorothy Perdue fell from a three-legged ladder at Stephenson’s in September, 1971. She was at the second step when it twisted and went out from under her.

Norman Stephenson, president of Stephenson’s, inspected the place where Mr. Gabbard’s accident happened. He found five three-legged ladders in the area, but only the one used by plaintiff was down. It was lying down with the pole leg straight out in front of it. There were no broken ladders present; the area was grassy and dry.

If there is help in the orchard, Stephenson’s instructs its customers on the use of the three-legged ladders. On the day of Mr. Gabbard’s accident, only the gate man was present. Customers did not have to use the ladders, but they were necessary to reach the high apples. Failure to pick the high apples resulted in less profit.

Stephenson’s ran the “You Pick” advertisement daily during the 1971 picking season to attract people to the orchard to pick apples so that Stephenson’s would make a profit. The profit depended on the apples being picked.

Willard S. Norton, an industrial engineer, prepared for his testimony by visiting apple orchards near Lexington, Missouri. He checked a number of three-legged ladders and one built especially for apple picking that did not employ the third or pole leg concept. One was a rocket-shaped ladder in use around Lexington which he thought to be safe and stable for orchard use. He examined the ladder used by Mr. Gabbard and found that the third or pole leg canted to one side so that a climber in normal usage would cause the ladder to go sidewise to the right. The ideal location of the pole leg would be in the center; the ladder in question was kicked over to the right. He observed also that the left leg of the ladder was crippled in that it was about three inches out of line. Such defects would cause the ladder to tip. The top of the ladder points in a different direction from the bottom.

The three-legged ladder in question falls within the classification “stepladder” in “American National Standard Safety Requirements for Portable Ladders,” requiring a spreader to make the structure stable so that the back legs would not slide out from under it. The vertical force of a climber will cause the three-legged ladder to flatten out. With the third leg minus a locking device and resting on hard ground, there is no resistance to a slide of the third leg; a spiked point would be more suitable. Mr. Norton would not recommend a three-legged stepladder for experienced or inexperienced users because of lack of spreaders and the tendency to tip as compared to a four-legged ladder. It was his opinion that the ladder in question has poor engineering design, is unsafe, and dangerous to use. If the pole leg is not properly placed, it is liable to slip out from under a climber because of the lack of a spreader. The spreader or locking device would prevent use by positioning over the crotch of a tree.

Henry Vollenweider, manager of Kerr Orchards at Lexington, Missouri, has ceased using three-legged ladders. He uses two-legged ladders, some with open and some with pointed ends. Such ladders are laid into the tree against a stable limb, and workers are not apt to fall. Three-legged ladders need not be placed into the trees and give the advantage of fewer apples knocked to the ground.

Plaintiff’s case against O’Connor went to the jury and resulted in a verdict for that defendant. Plaintiff’s motion for new trial charged error in sustaining Stephenson’s motion for directed verdict at the close of plaintiff’s case and asserted trial errors against O’Connor’s verdict. The motion for new trial was overruled. An appeal was taken which has since been dismissed as to O’Connor.

The trial court sustained Stephenson’s motion for directed verdict at the close of plaintiff’s case “on the basis of the case of Katz versus Slade.” (Katz v. Slade, 460 S.W.2d 608 (Mo.1970).)

Appellant contends that the rule of strict liability is properly extended to persons other than users and consumers; and that plaintiff should be accorded benefit of the rule in the facts of this case. He recognizes the denial of application of the rule in Katz v. Slade, supra, but argues for a distinction on the facts supported by cases from other jurisdictions.

Respondent asserts that plaintiff would have this court hold that a lessor or bailor for a mutual benefit in a commercial transaction comes under the rule of strict liability irrespective of a sale. It contends that the rule of strict liability has not been so extended in Missouri to cover this case; and, in reliance on Katz v. Slade, supra, argues that the court should not do it against this defendant.

Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969), an action by a widow against a wholesale distributor for wrongful death of her husband electrocuted while attempting to repair a friend’s allegedly defective sump pump, reviewed the law involving products liability, and adopted the rule of strict liability in tort stated in 2 Restatement, Law of Torts, Second, § 402A:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) The seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Giberson v. Ford Motor Co., 504 S.W.2d 8 (Mo.1974), an action against automobile manufacturer for damages arising from an accident allegedly precipitated when the motor of an automobile sold by defendant exploded, creating a cloud of steam, smoke, and gas which restricted vision of other drivers to such an extent that a multiple automobile collision occurred, extended the rule of strict liability to protection of bystanders who were not purchasers of the defective chattel.

Katz v. Slade, supra, involved a municipal golf course which supplied electric golf carts for a fee. Plaintiff was injured when the brakes on Slade’s cart failed and it struck him. The question posed by the court was “whether * * * a bystander may recover damages under the doctrine of strict liability in tort from a municipal corporation which is the owner-lessor of a golf cart for injuries sustained when struck while the vehicle is being operated by a third party-lessee, as a result of a defect rendering the vehicle unfit for its intended use.” 460 S.W.2d 1. c. 611. The court recognized that in several other jurisdictions the rule of strict liability in tort was extended to include bailors and lessors, but proceeded to denial of extension of the rule to Mr. Katz by an observation that “[n]o instance has been found in which this extension of the rule has been applied to a municipally-owned, noncommercial, nonprofit amusement facility maintained for the use of the public.” 460 S.W.2d 1. c. 612. See also Giberson v. Ford Motor Co., supra, 504 S.W.2d 1. c. 10, in its observation that Katz v. Slade “determined that liability under the rule should not be imposed on defendant city, a lessor, for the ‘non-commercial’ rental of a defective golf cart on a municipal course.”

In finding “no compelling reasons to impose absolute liability upon the city,” Katz v. Slade, supra, 1. c. 613, provided the distinction of its facts from those in Mr. Gab-bard’s case: “ * * * this is a municipally operated * * * facility — a golf course. Golf carts are supplied to those patrons who desire to use them, as a casual operation, a strictly incidental and collateral convenience. They are rented for use solely on the golf course, for short periods of time, for small fees. There is no indication that patrons are stimulated or induced to rent by widespread advertising. * * * It may not in any realistic sense be said that this is an operation essentially commercial in character * * * or a commercial distribution by a profit-making concern to a public forced to depend upon the representation of the city that the carts are suitable and safe for use.”

In contrast, the ladders furnished by Stephenson’s were placed in its orchard as part of its profit-oriented operation. Stephenson’s advertised its “You Pick” feature to induce customers to come to its orchard for the purpose of picking apples, and use of ladders was an integral part of such operation. Stephenson’s advertised to attract pickers so that it could make a profit; and the more apples picked, the greater the profits. The ladders enabled pickers to pick from higher parts of the trees; and without ladders, apples in the higher branches would have to be picked by employees or allowed to fall. Again, employee picking and waste reduced profits which could be realized upon customer picking. Thus, Stephenson’s had a profit motive, as opposed to Kansas City’s “noncommercial, nonprofit amusement facility”; and its furnishing of ladders was interwoven with its sales of apples, as opposed to Kansas City’s golf carts furnished as a “strictly incidental and collateral convenience.”

Mr. Gabbard did not pay a specific rental for the ladder furnished him, but under the “You Pick” arrangement, part of Stephenson’s profits came from Mr. Gabbard’s use of a ladder. Thus, there was a rental of ladders in that the cost of furnishing ladders was indirectly charged to its customers in the cost of apples-picked. The arrangement involving Mr. Gabbard was the same as that prevailing for a number of years, and consequently not a collateral, casual, or incidental convenience. Cf. Browning Ferris Ind., Etc. v. Baden Tire Ctr., 536 S.W.2d 203 (Mo.App.1976).

The facts in this case with their contrast to those in Katz v. Slade, supra, provide a basis for imposing absolute liability upon Stephenson’s as a bailor or lessor of a defective product in the usual course of its business, i. e., a lessor or bailor for the mutual benefit of the parties in a commercial transaction comes under the rule of strict liability irrespective of a sale. Such application of the rule of strict liability is supported by cases from other jurisdictions: Fulbright v. Klamath Gas Co., 271 Or. 449, 533 P.2d 316 (1975), an action by injured farmhand against defendant gas companies for injuries sustained while using defendant’s potato vine burner which the gas companies furnished to plaintiff’s employer to promote the sale of its propane gas; Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722 (banc 1970), an action by mechanic employed by airline, lessee of gasoline truck, against oil company, lessor of truck, for injuries received when legs on movable ladder mounted on tank split and mechanic fell; Perfection Paint & Color Co. v. Konduris, 147 Ind.App. 106, 258 N.E.2d 681 (1970), an action against gratuitous supplier of lacquer reducer to recover for death of employee, killed when reducer became ignited; Delaney v. Towmotor Corp., 339 F.2d 4 (2 Cir.1964), an action to recover for injury from a defective overhead guard, brought by employee of prospective purchaser to which the lift had been loaned for demonstration; McClaflin v. Bayshore Equipment Rental Co., 274 Cal.App.2d 446, 79 Cal.Rptr. 337 (1969), an action for wrongful death resulting from accident involving stepladder against lessor of stepladder; Garcia v. Halsett, 3 Cal.App.3d 319, 82 Cal.Rptr. 420 (1970), an action against owner of launderette for injuries sustained by user of coin-operated washing machine when he inserted his hand into the machine. See also Bachner v. Pearson, 479 P.2d 319 (Alaska 1970); Stewart v. Budget Rent-A-Car Corp., 52 Hawaii 71, 470 P.2d 240 (1970).

As stated, Perfection Paint & Color Co. v. Konduris, supra, 258 N.E.2d 1. c. 686- 688: “The accomplishment of the Restatement’s stated objectives and the protection which flows therefrom is not dependent upon a ‘sale.’ * * * To limit the rule to only those situations in which there has been an actual sale would be to circumscribe the rule to such an extent that its purpose might be defeated. * * * The label * * *, gratuitous furnishing, is not of great significance; the nature of the transaction serves as the basis of strict liability in tort and not the name by which it is called. In protecting the consumer, the rule of strict liability in tort attaches to products which are placed in the stream of commerce.” Price v. Shell Oil Co., supra, also perceived no difference between sellers of personal property and nonsellers, such as bailors and lessors. “In the light of the policy to be subserved, it should make no difference that the party distributing the property has retained title to it. * * * [I]t makes, good sense to impose on the lessors of chattels the same liability for physical harm which has been imposed on the manufacturers and retailers.” 466 P.2d 1. c. 726. “Lessors of personal property, like the manufacturers or retailers thereof, ‘are engaged in the business of distributing goods to the public. They are an integral part of the overall * * * marketing enterprise that should bear the cost of injuries resulting from defective products.’ ” McClaflin v. Bayshore Equipment Rental Co., supra, 79 Cal.Rptr. 1. c. 340.

Judgment in favor of defendant Stephenson’s Orchard, Inc., reversed; cause remanded.

All concur.

      . APPLES — YOU PICK
      JONATHAN — ROME
      RED & GOLDEN DELICIOUS
      OPEN 9 A.M. TO 5:30 P.M.
      STEPHENSON’S ORCHARD
      3 mi. S. of 40 Hwy. on Lee’s Summit Rd.

      . Katz v. Slade, supra, was adopted by Division No. 1 of the Supreme Court with one judge dissenting who would hold the case to be one of strict liability in tort. See also Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977).


author: RONALD M. BELT, Special Judge.

text:
    C. Dean BURKE, Appellant, v. Lloyd D. DOERFLINGER, Respondent.
    No. 38130.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Smith, Lewis & Rogers, Robert C. Smith, Columbia, for appellant.
    Robert W. Henry, Clayton, for respondent.
   RONALD M. BELT, Special Judge.

Plaintiff, C. Dean Burke, appeals from the order of the circuit court quashing a temporary restraining order enjoining the foreclosure sale of property, and rendering judgment in favor of defendant, Lloyd Doerflinger, Jr., on his counterclaim for the balance due on three promissory notes.

This cause arose from defendants’ attempt to foreclose on three deeds of trust which encumbranced to defendant real estate owned by plaintiff, as security for the notes. Plaintiff Burke filed a petition to enjoin the sale of property, praying for a restraining order and for an accounting setting forth the principal and interest due on each deed of trust. Defendants counterclaimed for $15,079.10 due on the promissory notes and expenses incurred in collection attempts. On October 10, 1975 the temporary restraining order was issued.

Trial on the cause was set for January 14, 1976. On that date plaintiff’s counsel announced that plaintiff (who did not appear) was not ready, and requested a continuance. Following a discussion with counsel of both parties, the court denied plaintiff’s request for a continuance. Defendant’s evidence, briefly summarized, was as follows: On May 1, 1975, he purchased three promissory notes, encumbrancing the property owned by plaintiff. Although demand for payment on the notes was made of plaintiff, no payments were received by defendant since the date of purchase of the notes. Defendant made an oral accounting for the court, indicating the amount of principal and interest due on each note. He testified that the total amount owed was $13,566.46, plus $1,810.60 for expenses incurred in collection.

The court quashed the temporary restraining order enjoining the sale of plaintiff’s property, and entered judgment in favor of defendant on his counterclaim in the amount of $13,566.46 for principal and interest, $1,810.60 for collection costs, and $825 for attorney’s fees, totaling $16,202.06. Plaintiff filed a motion to set aside the judgment and reinstate the restraining order, which was denied.

On appeal, plaintiff alleges two points: (1) the trial court erred in overruling his motion for continuance; and (2) the trial court erred in overruling his motion to set aside the judgment and reinstate the restraining order.

In his first point, plaintiff alleges the “trial court arbitrarily refused [his] application for a continuance.” He contends he had two reasonable grounds for the continuance: (1) he had a law school exam scheduled that day in Chicago, Illinois; and (2) a snowstorm the evening before the trial made travel impossible. Plaintiff also asserts that a continuance should have been granted because the trial date was improperly set.

We reject plaintiff’s contentions. Initially, as plaintiff admits in his brief, the oral motion for continuance on the morning of trial failed to comply with S.Ct. Rules 65.03 and 65.04. There was no verified motion; there was no evidence that plaintiff tried to obtain his testimony or deposition for the trial; it was not shown what particular facts the party-plaintiff would prove; nor were any offers of proof or supporting affidavits to the grounds raised by plaintiff provided to the court at that time or thereafter.

In response to plaintiff’s latter assertion, the record indicates that the January trial date was set in early November. Plaintiff was notified of the January trial setting by letter from the Clerk of the Court, dated November 18, 1975. No objection to the trial setting was ever made to the Court, and no request for a continuance was made in the intervening two months.

The court is vested with discretion in granting or denying a continuance, and on appeal every intendment is in favor of the Court’s ruling. State ex rel State Highway Com. v. Herman, 546 S.W.2d 488, 493[8] (Mo.App.1976). Although a party has a right to attend his trial . . .his absence is not always reason for a continuance. Blessing v. Blessing, 539 S.W.2d 699, 702[3, 5] (Mo.App.1976).

Under the circumstances of this case and plaintiff’s total noncompliance with the rules cited above, we find the trial court did not abuse its discretion in overruling plaintiff’s oral motion for continuance and in requiring the cause to proceed to trial as scheduled.

Plaintiff’s second point alleges the trial court erred in overruling his motion to set aside the judgment and reinstate the restraining order. Pursuant to Rule 75.01, the “trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.” However, a motion to set aside a judgment rests within the sound discretion of the trial court, and on appeal that decision will not be disturbed unless there has been a clear abuse of discretion, Corzine v. Stoff, 505 S.W.2d 162, 164[1] (Mo.App.1973).

Plaintiff argues that his absence from trial and the lack of action from his trial counsel actually resulted in a “default” judgment, demanding equitable relief. Even so, to prevail on a motion to vacate a default judgment, the plaintiff has the burden of showing a good excuse for default and a meritorious defense to the claim. Luce v. Anglin, 535 S.W.2d 504, 507[2] (Mo. App.1976). In ruling as we did under Point I, we necessarily found that plaintiff did not meet his burden of showing a good excuse for his absence from trial. Plaintiff would have us waive this requirement on the allegation that the fault lies with the inaction of his counsel. Trial counsel’s negligence in acting or failing to act on plaintiff’s behalf in the cause, if it occurred, is imputable to plaintiff. Askew v. Brown, 450 S.W.2d 446, 450 (Mo.App.1970). Further, such negligence of counsel is generally not a basis for vacating the judgment. Corzine, supra, at 164.

We have reviewed the case upon the law and the evidence (Rule 73.01) and in accordance with the standards set out in Murphy v. Carrón, 536 S.W.2d 30 (Mo.banc 1976). Finding no error, we affirm.

SIMEONE and WEIER, JJ., CLEMENS, P. J., and MARSHALL CRAIG, Special Judge, concur.

      . The notes provided that in the event of default in payment defendant was entitled to charge a reasonable fee for collection.

      . The record indicates that plaintiff knew of a possible conflict between his exam schedule and the trial date at least a couple of weeks prior to trial.


author: DOWD, Presiding Judge.

text:
    SIDES CONSTRUCTION CO., INC., et al., Respondents, v. ARCADIA VALLEY R-II SCHOOL DISTRICT, Appellant.
    No. 38582.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 4, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Roberts & Roberts, Geoffrey L. Pratte, Farmington, for appellant.
    Spradling, Drusch & Dillard, A. M. Sprad-ling, III, Cape Girardeau, for respondents.
   DOWD, Presiding Judge.

This appeal involves a dispute between Sides Construction Company, respondent, and Arcadia Valley R-II School District, appellant, concerning the construction of a school and gymnasium. Respondent contended the appellant owed it $15,000 as the final payment on a construction contract plus $1,510 for additional work. Appellant counterclaimed alleging breaches of the contract in the amount of $158,000.

In this court tried case the trial judge heard complicated and diverse testimony from fourteen witnesses and, we believe, resolved the issues in a fair and reasonable judgment. The judgment entered awarded respondent $3,933.73, representing the $15,-000 due on the contract plus $1,265.04 for additional work offset by damages for breaches of the contract totaling $12,331.31 with costs assessed against respondent.

Arcadia Valley R-II School District appeals. . This court has been aided by scholarly briefs filed by both parties and commends the attorneys. For reasons hereinafter given, we affirm.

The principal parties to this dispute, Sides Construction Company and Arcadia School District, entered into a standard form “owner and contractor” agreement on September 10, 1969, for the construction of a classroom building and gymnasium for the sum of $1,096,531. The architect for the project was Haywood Snipes, who aided in the designation of specifications and drawings to be incorporated into the contract. Other provisions of the contract provided for monthly progress payments and for final payment, “provided the Work has then been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect.”

Work proceeded on the project and, although it was not fully completed, the school district took possession of the classroom building in January of 1971. The gymnasium was available for occupancy in late August of 1971. Monthly progress payments of 90% of the contract price were made as scheduled and in June of 1971 the architect made arrangements for release of the final 10% due on the contract with the exception of $15,000 withheld to guarantee completion of “punch list” items and to cover possible damages for late completion. Prior to occupation of the classroom building and subsequent thereto Mr. Snipes, the architect, prepared “preliminary” punch lists of incomplete or defective aspects of the work. He conceded that the usual practice calls for the preparation by the architect of one punch list after the contractor gives notice that the building is complete, but claimed the preliminary lists were made at the request of Sides and were motivated by the necessity of getting the buildings ready for occupancy due to deteriorating conditions in the old school.

Subsequent to the payment of the 10% holdback a dispute continued concerning the existence of defects and whether they had been corrected. Beginning in 1972 Arcadia contacted several of Sides’ subcontractors directly as well as several other companies and paid them to correct alleged defects in the work and in 1975 contracted with Walter Brockmiller, Inc., a second general contractor, to complete work on hardware and locks, power outlets, folding partitions, roof repairs, exterior painting, a backed up exterior drain, and water-damaged ceiling tile. For much of this work Brockmiller utilized the same subcontractors who had performed the initial work for Sides.

Legal action concerning the project was initiated when Robbins Floors, Inc., one of Sides’ materials suppliers, sought recovery of $650. Sides subsequently entered a stipulation that it was liable in that amount to Robbins. Sides impleaded Arcadia School District in the amount of the Robbins claim and further alleged Arcadia’s liability to them for the balance due on the construction contract, stating that it had performed all conditions precedent and terms of the contract. In its amended counterclaim Arcadia alleged compliance with the contract and that Sides had breached the contract by defective and improper installation and by failure to conform its work to plans and specifications with respect to the following items: (a) the roof, with resulting damage to ceiling tiles, plaster, paint, walls and flooring due to leakage, (b) wiring, (c) intercom system, (d) ventilation and heating system, (e) exterior paint, (f) stage doors, (g) carpeting, (h) locks and hardware, (i) outside drain, and (j) electrical, mechanical, heating and ventilation equipment.

The court’s judgment awarded Sides the $15,000 due on the contract and $1,265 for additional work on extension of a drain. As an offset to the final payment the court awarded to Arcadia $12,331.31 representing amounts paid by Arcadia to correct defects.

(a) $250 Sides had agreed to pay for testing exterior paint to determine if a “primer” coat had been applied, (b) $5,380.47 paid to Brock-miller, Inc. (the second general contractor) for performance of its work with the court expressly deducting from the Brockmiller bill of $9,585.82 the amount attributable to its exteri- or painting ($3,672 expressly allocated to painting and $533.35 of the general contractor fee allocable to the painting), (c) $105.15 paid to Vans Electric Company to correct electrical circuitry in the home economics area, (d) $437.07 paid to M.C.S. Engineering for rewiring the public address system in the gymnasium, (e) $1,430.10 paid to Simplex Time Recorder Company to connect several clocks into the master system, (f) $1,207.82 paid to Gale’s Heating & Cooling, Inc., $398.35 paid to Phillip Frueh and $122.35 paid to Barber Coleman for work related to the heating system not automatically starting, and (g) $3,000 of the architectural fee paid by Arcadia for work performed more than 30 days after the contract’s completion dates.

Appellant Arcadia School District’s first alleged ground of error alleges that the trial court erroneously received and used evidence of an attempted “settlement” agreement in arriving at its final judgment, as evidenced by the failure to award appellant that portion of the Brockmiller bill attributable to exterior painting. Appellant claims the court was enforcing a settlement agreement reached in a meeting held at the Arcadia School on October 3,1973, at which appellant claims respondent agreed to repaint an exterior canopy and correct other agreed upon defects within sixty days if appellant would release its claim for defects in other exterior painting and damages for late completion. This action is claimed to be improper because (a) even if a settlement agreement had been reached, the uncontradicted evidence established that the defects had not been corrected within sixty days if at all, (b) offers of settlement are inadmissible, and (c) the offer of settlement was beyond the scope of the pleadings.

We hold that the trial court correctly admitted evidence of the meeting between the parties and their attorneys in October of 1973. In a court-tried case the trial judge is allowed wide latitude in the admission of evidence, the court being more qualified than a jury to consider evidence of a transaction and utilize only that part which is competent in arriving at its judgment. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632 (Mo.App.1976). The issue on appeal of a court-tried case is never whether admission of certain evidence was reversible error, but rather whether the evidence was admissible or not and what the judgment of the appellate court should be based upon the admissible evidence. Menos v. Hodges, 499 S.W.2d 427, 429 (Mo.1973).

The general rule relied upon by appellant is that declarations or concessions made during the course of settlement or compromise negotiations are inadmissible against that party. Hunter v. Helsley, 98 Mo.App. 616, 620-621, 73 S.W. 719, 720 (1903); Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 139 (8th Cir. 1968). If, however, a court can reasonably determine that the purpose of a meeting is to reach a final agreement as to items that in fact need to be corrected and are not in compliance with contract specifications, the proscription of the general rule does not then apply to resulting statements or agreements. In Hunter the court held that the rule against compromise declarations has no effect when evidence showed that a discussion between parties was to ascertain an amount actually owed to plaintiff and not to effect a compromise. 73 S.W. at 720-721. Even if part of the meeting was to effect a compromise agreement between the parties the court would be entitled under the liberal admission of evidence rule to consider evidence of the meeting in order to obtain any relevant evidence contained therein as to defects in the construction.

The fact that a period of sixty days was set for completion of the agree-upon items does not necessarily indicate the existence of a “compromise” agreement. Rather, it could be viewed as a mere designation of a reasonable time in which the work should be completed. In Bremen Bank & Trust Co. v. Bogdan, 498 S.W.2d 306, 311 (Mo.App.1973), a bank’s proposal to make a secured loan to a customer to cover an overdraft was held not to be a compromise but was “merely for the purpose of working out by negotiation a method for satisfying [an acknowledged] debt.”

There was sufficient evidence from which the court could determine that the purpose of the meeting at the school was to make a final determination as to existing defects for which Sides should be responsible despite testimony of several of the participants that it was to settle their differences. While appellant points particularly to the testimony of Harvey Berhle, Sides’ job superintendent at the Arcadia project, that the purpose of the meeting was “[t]o try to settle” the punch list problems, it is not clear that he used those words in the “compromise” sense. His prior testimony indicated frustration at receiving multiple punch lists, each with additional items, and could thus be viewed as indicating that the purpose of the meeting was to finalize all legitimate complaints into a final list. The architect testified that because of the need for a January, 1971 occupancy of the classroom building he departed from standard procedure and agreed to prepare “preliminary” check or punch lists during construction. Mr. Donald Sides, vice president of Sides, testified that probably six to eight punch lists were received. Some of those present at the meeting conducted an inspection trip of the project. The record indicated that the school occupied the buildings while construction was being completed, thus forming a basis for legitimate question in some areas as to whether an apparent defect was the responsibility of the contractor or the school. Viewed in this context the court did not erroneously declare and apply the law in receiving testimony concerning discussions or agreements related to the October meeting.

Nor was adherence to a settlement agreement the only explanation for the disallowance of the exterior painting claim. The court heard testimony from Jerry Hotop, a painting contractor who repainted the exterior canopy in early 1974 for Sides, that there was “very little peeling” on the canopy when he first observed it. He also testified that such exterior painting usually must be redone every three to five years. Mr. Sides indicated under questioning by the school’s attorney that when he went on a walking tour of the building with the architect at the October meeting he “[didn’t] recall any paint on the gutters peeling” despite a prior punch list indicating there was some peeling and, although some blistering on the gravel guards was observed, there was no indication that it was Sides’ responsibility.

Finally, the judgment reveals the court did not feel itself bound by the terms of the attempt at settlement as alleged by appellant. Appellant’s attorney testified that among the items Sides did not agree to correct at the meeting was a problem with the stage clock not resetting with the master clock and a problem with the stage door jumping its track. However, damages for such items were allowed in the court’s judgment for payments made to Simplex Time Company and Brockmiller Company.

Appellant’s second point is that the court’s judgment was against the weight of the evidence and not supported by substantial evidence because it did not award appellant full damages for repairs to the roof, electrical work, the total architect’s fee for work performed more than thirty days after the designated completion dates, yard work necessitated by Sides having to do return work on a buried cable, carpet deterioration, and replastering and repainting, “because these damages were uncontradict-ed as well as supported by expert testimony, or were covered by the purported offer of compromise.”

This court, under Rule 73.01, reviews court-tried cases on both the law and the evidence as in suits of an equitable nature, with due regard for the opportunity of the trial court to judge the credibility of the witnesses. The judgment of the trial court should be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). Murphy v. Carrón expressly contains the caveat that a judgment should be set aside with caution on the ground that it is against the weight of the evidence and then only with a firm belief that the decree or judgment is wrong. When, as here, the trial court issues only its judgment without detailing its findings of fact and conclusions of law, all fact issues are deemed found in accordance with the result reached and the judgment affirmed if it is correct on any reasonable theory supported by the evidence. De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Co., 539 S.W.2d 542, 545 (Mo.App.1976).

Appellant first claims error in not awarding it $17,000 in damages to cover the cost of a contract entered into on April 29, 1976 between appellant and Drury Company to repair the roof of the school, specifically (a) cutting and patching noticeable blisters, (b) power brooming existing gravel and retop-ping and regraveling, (c) installing a new roof control joint, for a subtotal of $14,731, (d) installing stack vents for $725, and (e) fixing the canopy so that it drains in a bondable condition for $2,740, for a total contract price of $18,196.

In awarding part of the damages requested for additional work on the roof the court reasonably resolved judgment and factual questions related to (a) the existence of roof damage and resulting leaks, (b) the extent of such damage, (c) the success of the efforts of Sides and Brockmiller (through Pyramid Roofing Company) in correcting existing defects, (d) the extent to which the defects were repairable short or total roof replacement, and (e) the extent to which problems may have been present even had plans and specifications been complied with.

An unspecified portion of the $14,731 Drury contract for work on the main part of the roof was for cutting and patching “noticeable” blisters — an item the trial court could have found was incorporated into the roofing part of the Brockmiller bill for which the court made full allowance of $1,500. In addition, there is little evidence in the record concerning the front canopy not draining properly, or that total replacement was necessary. If replacement was necessary it would not have been proper for appellant to insist on May 30, 1972, that it be repainted as a punch list item. This item, as noted, constituted $2,740 of the $18,196 Drury Company contract.

Mr. Brockmiller testified on examination by the court that he was contacted by the architect and superintendent in the fall of 1974 to correct a specific list of defective items, and that his work commenced in the spring of 1975. On examination by the appellant’s attorney he testified that before his men commenced work there were blisters and cracks on the roof with air and water pockets, and that leaks were present. His company “hired the same sub-contractor who supposedly did the roofing . and went back over it with them and left it pretty well up to [the subcontractor] to fix the blisters and leaks that were up there.” Brockmiller concluded on examination by the court that when his men completed work they had corrected the items presented to them by appellant and that “the leaks had been stopped.” He also stated that neither the superintendent nor the architect had made any complaint to him concerning his company’s work since its completion.

Pyramid Roofing Company, the roofing subcontractor who performed the work for Sides and Brockmiller, had communicated to the school that the roof did not require additional work. Pyramid notified Sides by letter on August 22, 1972, that the blisters on the roof and two designated leaks were repaired as of August 16, 1972. Appellant claimed not to be aware of a roof bond in the amount of $5,780 issued by the manufacturer of the roofing materials listing appellant as owner. The architect testified that the roof manufacturer makes a field inspection prior to issuing a roof bond and agreed that the bond is some evidence that “the roof conforms to the specifications of that type of roof.” The architect’s field inspector (a licensed architect) was present while the roof was being built, and both he and Mr. Snipes were present when the roof was poured, and neither saw any evidence of improper workmanship. He stated that no problems appeared on the roof until the following summer.

The superintendent of the school district, Jimmy Dale Maguffee, conceded on questioning by respondents’ attorney that the areas of leakage at the time of the October meeting in 1973 were around the heating unit and southeast, furnace in the gymnasium and in the classroom building, principally over a small section of lockers and in the kitchen. Respondents introduced into evidence a letter of March 14, 1973 from the architect to Sides which noted that a heavy rain had fallen prior to March 10 and that there was a leak in the southeast corner of the gym near the furnace, as well as a drainage backup into a locker room. No other instance of leakage was mentioned in the letter.

There was testimony by Snipes and Brockmiller that the particular roofing agreed upon by the parties may have been susceptible to blistering. Mr. Snipes stated he had approved “a new roofing system” and that “many people were beginning to have trouble with that type of roof.” Brockmiller testified that on that type roof there may be pockets of water or air blisters even though properly installed, though not with the frequency testified to. He noted that often a blister does not result in a leak and that the owner will let the air or water out and fix the defect.

All of this evidence had to be considered against appellant’s extensive evidence as to defects present in the roof and failure to conform to specifications. On these facts we cannot hold that the weight of the evidence required the trial court to award the full damages requested for alleged defects related to the roof. There was room for reasonable doubt as to the extent of the defects for which Sides was responsible as well as to the necessity of the extensive repair contemplated by the Drury contract. Damage allowable for roof defects is the reasonable cost of conforming a roof to specifications. Herbert & Brooner Construction Co. v. Golden, 499 S.W.2d 541, 552 (Mo.App.1973).

The court’s refusal to make allowance for the other damages claimed in this point is supported by the evidence under the review standards of Rule 73.01 and Murphy v. Carrón and by the general rule that while damages need not be established with absolute certainty, reasonable certainty is still required as to both existence and amount. The evidence must not leave the

matter to speculation. Hargis v. Sample, 306 S.W.2d 564, 569 (Mo.1957); Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596, 604 (Mo.1968). One element of “reasonableness” is the extent to which the party has established the damages as well as it could under the circumstances. In Hargis it was held that the amount of estimated loss should, in event of uncertainty, at least be supported by the best evidence available. 306 S.W.2d at 569. Several of appellant’s claimed elements of damage are infirm under these considerations.

Appellant relied solely on the testimony of Mr. Maguffee, the superintendent, to establish that electrical wiring in the stage and shop area was not wired according to specifications and that “Oh, it would probably cost around [$500]—that’s a rough figure—to get those things up [to specifications].” He testified that the school had to expend “a couple hundred dollars and our own labor” for “reseeding and relandscap-ing our school grounds” when “[Sides or its agent] had to come back and retrench it [the school yard] because they had forgotten to hook up some things.” Despite the fact that the money had actually been paid there was no attempt to state how or on what items the money was expended, the exact amount paid or to whom it was paid. In a similar category is the “actually incurred” expense of $375 to $450 for custodial wages allocable to work performed reglu-ing unraveled carpet seams. The superintendent did not state with reasonable certainty the number of hours spent on the work, the number of custodians involved, nor their hourly wages other than that of the head custodian.

Mr. Maguffee also estimated the amount necessary to replaster and repaint the kitchen ceiling and one of the restrooms due to leakage. Beside some question as to the necessity of replastering the entire ceilings, a factual issue was created as to whether steam from a dishwasher in the kitchen was responsible for some of the plaster damage. The court could also have reasonably found that the Brockmiller bill contained a sufficient allowance for damage to ceilings from any leakage, and that ceiling damage from future leakage was too speculative.

Nor could the court have awarded appellant $5,000 for the expense of resanding, resealing, and relining the gymnasium floor because of buckling from water damage without engaging in speculation and conjecture. The evidence was vague as to the extent of damage with testimony that there was “some floor damage where the hardwood floor is bucking up.” No basis was provided for an estimate that the rental of necessary sanding equipment would cost $5,000, or whether other expenses were incorporated into that estimate.

Appellant’s final two claims for damage under this point include $6,000 for reduction of carpet life from twenty-five to fifteen years due to improper installation (based upon initial cost of $15,000) and $9,600 in architectural fees not awarded for work performed “in trying to get the many defects straightened out.”

The architect did testify that there was improper gluing of the carpet seams causing some unraveling at the edges and that “it will continue to possibly ravel at the edges when the carpet sweeper goes over the edges and where it is not properly glued in the seams.” The superintendent testified that with maintenance work the carpet was “in fair shape now”, thus creating a factual issue as to the extent to which the carpet would unravel in the future. The architect testified that the middle of the carpet could last a hundred years and that the defect went primarily to the appearance of the carpeting at the seams. Based upon that testimony there was justification for substantial uncertainty as to the extent of the defect in the carpeting, the extent to which the defect would persist in the future, and the effect of the defect on the “carpet life.”

The claim for architectural assistance was based on a bill tendered by Mr. Snipes on January 1, 1976 for extra work performed more than thirty days after the contract’s completion dates, as provided for in an agreement between appellant and architect. The bill covered a period of five years and listed 500 hours of professional services at $16 an hour ($8,000), overhead and office expenses of $4,000, and 5,000 miles use of his car at 12 cents per mile ($600) for a total bill of $12,600. This element of damage was not pleaded in appellant’s counterclaim but was tried with the implied consent of respondents under Rule 55.33(b). The court allowed $3,000 of the bill as an element of damage. We decline to hold the trial court erred in not holding Sides responsible for the full amount of the Snipes bill as submitted. Neither the bill itself nor accompanying testimony made an attempt to specify dates or times over which the 500 hours of work and 5,000 miles were allocated during the “dozens and dozens” of trips to the school site, nor was the necessity of making that number of trips established. The architect’s “best estimate” as to the number of trips made to the site in connection with the project was “fifty to seventy-five.” An unspecified part of the architect’s time was spent on work for which no damages have been allowed — for example, negotiations with the Drury Company. On this state of the record it was a matter of judgment for the court to make as to the amount of the architect’s time over the five-year period for which the contractor’s breaches were responsible. Due to the failure of appellant to document the $12,600 bill any better than it did we do not profess to be in any better position to make such an allocation than was the trial court.

Appellant alleges in his third point that the trial court erroneously applied the law in not granting the liquidated damages of $25 per day for late completion provided for in the contract. The contract provided that the classroom building was to be completed by September 1, 1970, and the gymnasium by December 30, 1970. Appellant argues that (1) liquidated damages did not have to be specifically and affirmatively pleaded when they “were a provision of the very contract placed in issue” and (2) even if liquidated damages did have to be affirmatively pleaded, the pleadings should have been amended to conform to the evidence when evidence was received relative to the contractual completion date without timely objection.

Appellant seeks to use the liquidated damage clause of the contract as a “sword” to collect damages of approximately $6,000, and not as a defense to its obligation to make final payment under the contract. Appellant’s argument that the clause is not an affirmative defense and thus need not be specifically pleaded under Rule 55.08 is thus inapposite. Rule 55.05 states that “[a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” “A ‘counterclaim’ is a counterdemand existing in favor of a defendant against a plaintiff and includes set-off and recoupment . . .

Schroeder v. Prince Charles, Inc., 427 S.W.2d 414, 419 (Mo.1968). While the performance or occurrence of conditions precedent may be pleaded generally, “[a] denial of performance or occurrence shall be made specifically and with particularity.” Rule 55.16. Nowhere in appellant’s pleadings does it allege noncompliance with the contract due to late completion or the existence of a liquidated damage provision, either on a theory of affirmative breach or under a theory of setoff.

The remaining issue is thus whether appellant should be deemed to haye amended his pleadings to conform to the evidence produced as to late completion and the existence of a damage clause in the contract. Rule 55.33(b) provides that issues not raised by the pleadings shall be treated as if so raised when they are tried by express or implied consent of the parties, and the pleadings will be deemed amended to conform to the evidence.

Appellant cites testimony introduced 'at trial relative to the contractual completion dates, that performance was not completed on those dates, and that no extensions of time were granted by appellant. The superintendent testified that the kitchen was not complete in January of 1971 when the school moved in and that the school had to rent a van to transport food to the high school from the elementary school for the rest of that school year. Students were transported to the old high school for physical education, shop, and music classes. Subsequent to this testimony the following exchange between the superintendent and appellant’s attorney took place:

“Q. Does the contract provide for a penalty for non-completion by the dates specified?
A. Yes, it does.
Q. How much is that penalty as provided in the contract?
A. I think it is twenty-five dollars a day.
Mr. Spradling: Your honor, I am going to object to any penalty because it is not pleaded in the counterclaim by the School District and therefore it is beyond the scope of the pleadings.
The Court: The objection will be sustained.”

We hold the court did not err in declining to award appellant the liquidated damage provided for in the contract and in sustaining respondents’ objection to testimony concerning the damage provision on the ground it was not pleaded. Based upon the testimony cited appellant claims objection came only when the question of how much liquidated damage was provided for was asked. We cannot agree that respondents gave their implied consent to the trial of this issue, and hold that the objection was sufficient to withhold consent from the trial of both the existence and amount of liquidated damage. The cases principally relied upon by appellant involve situations in which the party did not object at trial to an unpleaded issue being raised, Kennedy v. Tallent, 492 S.W.2d 33, 38 (Mo.App.1973) (claimed error in giving an instruction), Middleman v. Complete Auto Transit, Inc., 486 S.W.2d 456, 462 (Mo. banc 1972) (no objection on basis that issue was outside of the pleadings) or in which a plaintiff’s own exhibit established an unpleaded affirmative defense. Household Finance Co. v. Watson, 522 S.W.2d 111, 114 (Mo.App.1975).

Appellant’s final point claims the court erroneously applied the law in granting respondent Sides final payment on the contract because the contract’s terms provided for such payment only upon fulfillment of certain conditions, and the evidence from both parties indicated such conditions had not been fulfilled. Appellant cites the following provisions of the contract, incorporated therein by the general contract specifications, as establishing two conditions precedent to final payment that were not satisfied by Sides:

“Full and Final Payment of the Contract Sum shall be made within Thirty Days of the Completion of all of the following Requirements:
(a) Architect’s Written Certification to Owner that the Building is Complete,
(b) Payment of all Labor & Material Bills and Receipt of Final Affidavit from General Contractor that all Payrolls, Bills for Equipment, and Other Indebtedness connected with the Work have been Paid or otherwise satisfied. ...”

The general conditions further provided that the owner could withhold payments if the architect withheld certification of approval in order to protect the owner from loss due to, in part, defective work not remedied, contractor’s failure to promptly pay subcontractors for labor and materials, or architect’s reasonable doubt the project could be completed for the unpaid balance of the contract price. Such withheld payments would be paid “upon satisfactory removal of any such grounds.” Another provision provided that the contractor would not be entitled to the final payment nor to any portion of the retained payments until satisfactory evidence was given the owner that all indebtedness in connection with the project had been paid.

Appellant cites the following transcript testimony as establishing that these conditions had not been met: (1) neither the architect nor the superintendent have ever given final approval to the building nor approved final payment, (2) Mr. Sides testified that the heating and electrical and several other subcontractors were never paid, nor could he recall supplying an affidavit certifying that all work under the contract had been performed in accordance with its terms, and that all material and subcontractor bills had been paid, and (3) the architect testified that neither appellant nor he had ever received notice from Sides that the building was complete and ready for final inspection.

As provided for in the contract and general conditions to the contract, “on proper certification of architect,” Sides was compensated by an accumulation of monthly progress payments to a sum equal to 90% of the value of the work performed. Based upon apparent certification by the architect that substantial completion of the entire work had taken place a sum sufficient to increase total payments to 100% of the contract price was paid, “less such retainages as the architect [determined] for all incomplete work and unsettled claims.”

Courts have traditionally recognized the difficulty of literal compliance with construction contracts. In Missouri it has been held that substantial compliance with specifications constitutes completion as a matter of law, and that a building is complete and the builder entitled to recover the contract price, less sums necessary to correct defects, when the builder’s performance is substantially in compliance with the contract. Bullock Co. v. Allen, 493 S.W.2d 5, 7 (Mo. App.1973). Phoenix Assurance Co. v. Appleton City, 296 F.2d 787, 792 (8th Cir. 1961) held that “under Missouri law a strict and literal compliance with the terms of the contract is not required, and . . . the [owner] would be required to accept the improvement if the contractor has substantially complied with the construction contract.”

The contract in this case does set forth certain conditions precedent to the full and final payment of the contract sum, but the court’s judgment in this case did not make such an award. Taking the court’s judgment as a whole, the final amount allowed to the contractor was reduced by the majority of the sums the architect ordered withheld from the total contract price in order to protect the owner from specified losses. Appellant did not establish what portion of the retained payments was necessary to protect it from loss due to Sides’ failure to pay in full several of its contractors, nor that any sums were withheld because of failure to make any such payment. Relevant also was appellant’s action in taking over the contract and dealing either directly or indirectly with the unpaid subcontractors and making payments to them which were subsequently used to justify withholding payments on the contract. Appellant made no request for lien waivers or evidence of payments at the time the project was substantially completed and the 10% withheld amount paid. Under these circumstances the conditions in the contract did not prevent the award which the court made.

The trial court thus acted in accord with prior authority that when a school construction contract provides for final payment after certification of substantial completion, provided the contract be then fully completed and performed, and the school district is in fact using the building, the contractor is then entitled to be paid the contract price less sums necessary to remedy defects and bring the building into conformance with plans and specifications. This was the holding in Bloomfield Reorganized School District v. Stites, 336 S.W.2d 95, 100-102 (Mo.1960), even though the evidence established that the building was not in fact completed. See 13 Am.Jur.2d Building and Construction Contracts § 41 (1964) —contractual provision that final payment is to be made when the work is completed or that work is to be performed to owner or architect’s satisfaction does not take case out of general rule permitting recovery of the contract price less damages for failure to perform strictly under the substantial performance doctrine. Standard Millwork & Supply Co. v. Mississippi Steel & Iron Co., 205 Miss. 96, 38 So.2d 448, 451 (banc 1949).

Because the architect here did approve progress payments and the full payment less the retained amount upon substantial completion and the court did not award full and final payment of the contract price, this opinion is not at variance with established precedent as to the conclusiveness of good faith decisions of an engineer or architect as to whether work has been performed in accordance with the contract. Massman Construction Co. v. Lake Lotawana Ass’n, 240 Mo.App. 469, 210 S.W.2d 398, 402 (1948); Public Water Supply District v. Maryland Cas. Co., 478 S.W.2d 293, 295-296 (Mo.1972). If a contract provides for acceptance of work by an engineer before payment the contractor cannot recover the whole amount to be paid without obtaining such approval. Myers v. Union Electric Light & Power Co., 334 Mo. 622, 66 S.W.2d 565, 569 (1933).

The general conditions to this contract as to “payments withheld” provided that upon satisfactory removal of the grounds for withholding of payments the payments so withheld would be made. Whether the school was justified in withholding the amounts from the contract price thus became a factual issue for the trier of fact to resolve after considering all of the testimony and evidence presented at trial. Expenditures necessary to make work conform to the contract or protect owner against loss is a question for the trier of fact. Talbot-Quevereaux Construction Co. v. Tandy, 260 S.W.2d 314, 316 (Mo.App. 1953). We conclude that undei the evidence presented in this case the court did properly determine the amount to be withheld consistent with the contract.

We have reviewed the case upon the law and the evidence under the established guidelines and now affirm the judgment of the trial court that Sides Construction Company recover the sum of $3,933.73 from Arcadia Valley R-II School District.

The judgment is affirmed.

SNYDER, J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . The offset figure of $12,331.31 represented the following payments: