author: STEWART, Judge.

text:
    Claude ANSPACH, Appellant, v. Mary Jane ANSPACH, Respondent.
    No. 37634.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

      Julius H. Berg, St. Louis, for petitioner-appellant.
    Frank Bild, St. Louis, for respondent.
   STEWART, Judge.

The marriage of the parties was dissolved after 19 years. The court granted custody of the sons, Garrett age 13 and Gregg age 17, to the wife and Gary age 15 to the husband. The wife was awarded $100.00 per month for support for each of the children under her custody, $375.00 as attorney’s fee, and $10,000.00 as maintenance in gross. The maintenance to be payable at the sum of $100.00 per month. The court divided the marital property as set out hereafter. The husband contends that the court erred in: (1) awarding maintenance, (2) making a grossly unequal division of marital property, (3) ordering him to pay child support in an amount which was unreasonable and excessive, and (4) ordering him to pay his wife’s attorney fee.

Both parties were employed. The wife’s employment began about six months after the parties were married. Prior to the trial, the parties listed their net pay. The husband’s take home pay after deductions, which included a deduction for retirement, was $375.00 biweekly. When the wife’s income and expense statement was drawn, she had a take home of $139.00 per week. She received a gross increase of 14 cents per hour prior to the date of trial. There was no evidence of her net pay after the raise.

At the time of the separation of the parties, about 10 months before trial, the husband had in his name a savings account of $2,400.00, three motorcycles, two insurance policies, one with a cash value of $1,000.00, and a 1967 Rambler automobile. He had two deer rifles, one shotgun, one .22 rifle, some hand tools and power tools. These assets were acquired during the marriage and are marital property. He also has an interest in a retirement fund, the value of which was not developed.

Following the separation Mr. Anspach withdrew the $2,400.00. He testified that he spent $1,500.00 for “restoring and custom building” a 1967 Triumph motorcycle, which he valued at $1,200.00. The rest of the cash was spent on clothes, furniture and fees. He claims to have sold a 1972 Harley-Davidson motorcycle for $800.00 to his nephew, who in turn sold it for $1,900.00. Mr. Anspach had paid $3,000.00 for it three years before trial. The 1972 Kawasaki was valued at $300.00. Mr. Anspach also surrendered one of his insurance policies for the cash value of $1,000.00.

The parties owned a home as tenants by the entireties. The note secured by deed of trust on the home had a balance due of $11,000.00. The house was valued by Mrs. Anspach at $27,500.00. Her husband placed a higher value upon the house. The court could have found the value to be $27,500.00. They also had a ’65 Ford.

During the marriage, the wife used all of her income on household expenses including clothing for herself and the children. Mr. Anspach made the payments on the note on the home. Before they purchased their present home, they had owned another. The payments on their first home were $134.00 per month. Payments on the home they presently own are $167.00 per month. He also paid the insurance premiums in the amount of $25.50 per month.

In making a division of the marital property, the court awarded Mrs. Anspach the family home along with the furniture and furnishings then in the home and the 1965 Ford automobile.

The court awarded Mr. Anspach the 1967 Rambler, the Triumph and the Kawasaki motorcycles, the remaining life insurance policy, and the hand and power tools.

No mention was made of the firearms or of the retirement benefits. The court also made the awards for support, maintenance in gross, and attorney’s fees as set out above.

In making the award for maintenance it would appear that the court was attempting to adjust the financial equities as between the parties. See McCully v. McCully, 550 S.W.2d 911 (Mo.App.1977). However, at the outset we are met with a threshold question of whether the court entered a final judgment. If the judgment is not final, we have no jurisdiction. L.F.H. v. R.L.H., 543 S.W.2d 520 (Mo.App.1976).

There is evidence of record that Mr. An-spach has had funds withheld from his paycheck for his “retirement.” No disposition has been made of his interest in that fund, if any. We also note that no disposition was made of the fire arms, which Mr. An-spach had in his possession.

The Dissolution of Marriage Act has still not been fully interpreted. It is an innovative statute, which has, as one of its primary purposes, the complete determination of the rights of the parties with respect to all property that was brought into the marriage and all property acquired during the marriage. Carder v. Corder, 546 S.W.2d 798 (Mo.App.1977). Section 452.330, RSMo Supp. 1975, provides in part that: “[T]he court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors The court must first determine the status of all of the property of the parties. As to each asset, or class of assets, the court must make a finding as to whether it is the property of a spouse individually, or whether it is marital property in accordance with the terms of § 452.330-2, RSMo Supp. 1975, L.F.H. v. R.L.H., 543 S.W.2d 520 (Mo.App.1976).

When the status of the property of the parties is left undetermined and undistributed, the court has not exhausted its jurisdiction; its judgment is not final and appealable; and the court can, upon proper notice, vacate, modify, or correct any part of its decree. Pendleton v. Pendleton, 532 S.W.2d 905, 906[2] (Mo.App.1976). See, e. g., L.F.H. v. R.L.H., 543 S.W.2d at 521; Corder v. Corder, 546 S.W.2d at 800. It is readily apparent that the failure on the part of the parties to make a full disclosure of all assets, irrespective of the status of the property, can have far reaching future consequences.

The trial courts are in no position to prepare the case for the parties and present the evidence. They must render their judgment upon the evidence that the parties present to them. In order to achieve the purpose of § 452.330, RSMo Supp. 1975, and to bring a dissolution proceeding to a final conclusion, the parties must advise the court of all of the property in which they or either of them claim an interest.

In this case there is evidence of record that Mr. Anspach had some interest in a retirement program. An employee’s interest in a profit sharing or retirement fund can be marital property within the intent of § 452.330, RSMo Supp. 1975; Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971); Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.1977); In Re Powers, 527 S.W.2d 949 (Mo.App.1975). It thus appears that the interest in the retirement fund may constitute property which is either the sole property of the husband or marital property. If the issue is not resolved, the judgment in this case cannot become final. Because the status of the interest in all of the property of the parties was not determined and set apart as the separate property of one of the parties, or divided, we reluctantly conclude, that there was no final judgment. The appeal is dismissed and the case is remanded for further proceedings consistent with this opinion.

McMILLIAN, P. J., and RENDLEN, J., concur.

      . Mistakenly listed in the decree as Yamasaki.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael LONDE, Appellant.
    No. 38163.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.

      John J. Stewart, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Sam Pertolet, Asst. Pros. Atty., Clayton, for respondent.
   SMITH, Judge.

Defendant appeals his conviction in a court-tried case of stealing by means of false pretenses and deceit, Sec. 561.450 R.S. Mo.1969.

The parties have joined issue upon the question of whether a promise to pay can constitute a false pretense under the statute, where the promisor knows when he makes the promise that he will not pay. Interesting as the question is, we need not and do not reach it.

The information read as follows:

“. . . on or about the 20th day of October, 1975, the defendant did willfully, unlawfully and feloniously steal property over the value of $50.00, to-wit: a microwave oven, by means of certain false pretenses and deceit, to-wit: by representing that (sic) would pay $350.00 for a microwave oven, which pretenses were made to Doris Ellis, agent for Ellis Company, and were false and untrue and were known to be false and untrue by the said Michael Londe . . . .”

It is apparent that some name or the pronoun “he” should have appeared between the words “that” and “would”. This typographical error renders the information fatally defective and the conviction thereunder void. As filed the information fails to state who defendant represented would pay for the microwave oven. That allegation is essential to the offense as charged. False pretenses and deceit are generic terms. An information charging stealing by such means must specify the acts or representations which the State asserts forms the basis for the crime. See State v. Kesterson, 403 S.W.2d 606 (Mo.1966); State v. Easier, 449 S.W.2d 881 (Mo.App.1969).

The facts developed at trial demonstrate the seriousness of the deletion here. It is apparent that the attorneys and the court considered that the charge was that defendant had promised to pay. Yet the evidence throughout was that the microwave oven was sold to ParaMedical Supply Service. The purchase order was on a form containing the letterhead of that company, and signed by Mr. Londe as “purchasing agent.” The sales invoice stated the oven was sold to ParaMedical Supply Service. The testimony of the prosecuting witness was that she expected payment to come from ParaMedical Supply Service and that she continued billing that entity (if entity it in fact was) when payment was not received as expected. Simply stated there is no evidence that defendant ever promised to pay for the oven. Nor was any attempt made to develop evidence of the business status of ParaMedical Supply Service, whether such a company even existed or whether defendant was an agent of the company. If the oven was obtained by false pretense or deceit, it was not a false pretense that defendant would pay.

Judgment reversed and defendant discharged.

CLEMENS, P. J., and DOWD, J., concur.

      . The parties are in disagreement about whether the offense charged is under Sec. 561.450 or Sec. 560.156. We do not decide that as our conclusion applies to either.

      . Why the value allegation was included in what the State contends is an information charging a violation of Sec. 561.450 is not apparent.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Steven MADISON, Defendant-Appellant.
    No. 37807.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Aug. 23, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    J. Martin Hadican, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Raymond A. Bruntrager, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of assault with intent to kill with malice and the resulting two year sentence.

No contention is made that the evidence was insufficient to support the verdict. Defendant had an altercation at school with another student. He left school and went to his cousin’s home. He prevailed upon his cousin to drive him back to school and to furnish him with a gun so he could “get” the other student. Upon arriving in the vicinity of the school, defendant observed the other student walking on a sidewalk, directed his cousin to pull the car into the curb, leaned out the window and fired one shot at the other student. The other student was struck by a .22 caliber bullet in the arm. Defendant and his cousin immediately fled the scene. Both were arrested shortly thereafter. Defendant presented no evidence.

Defendant’s sole contention on appeal is that the court erred in giving an instruction on the lesser included offense of assault with intent to kill without malice. This point is based upon defendant’s conclusion that the evidence supports the higher degree crime or nothing. We need not reach that argument. If there was any error in giving the instruction on the lesser included offense, it was cured by the verdict finding the defendant guilty of the higher degree assault. State v. Tettamble, 394 S.W.2d 375 (Mo.1965) [17,18] vacated and remanded on other grounds Tettamble v. Missouri, 386 U.S. 265, 87 S.Ct. 1034, 18 L.Ed.2d 42 readopted, 431 S.W.2d 441 (Mo.1968); State v. Cook, 428 S.W.2d 728 (Mo.1968) [3], Defendant has suffered no prejudice by the complained of action.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: GUNN, Judge.

text:
    CINCO ENTERPRISES, INC. Plaintiff-Respondent, v. LAKE ST. LOUIS ESTATES COMPANY, INC., Defendant-Appellant.
    No. 38932.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 23, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Robert C. Jones, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for defendant-appellant.
    Edward C. Ahlheim, St. Charles, for plaintiff-respondent.
   GUNN, Judge.

In this mechanic’s lien case, the trial court found that plaintiff-respondent’s mechanic’s liens for work performed had priority over a prior recorded deed of trust. The issue at trial and on this appeal concerns only the priority rights of the mechanic’s liens. We affirm the trial court’s judgment that the plaintiff-respondent’s lien be given preeminence over the deed of trust.

Plaintiff-respondent instituted a suit to enforce mechanic’s liens for house foundation work performed on certain lots in the Lake St. Louis Estates subdivision in St. Louis County. Defendants-appellants are trustees or successor trustees under a deed of trust given as security for a $17,000,000 land development construction loan made by Citizens Mortgage Investment Trust (CMIT) for Lake St. Louis Estates. The parties stipulated that the work giving rise to the mechanic’s liens was done pursuant to a valid contract; that the amount charged, totaling $9,692.65, was fair and unpaid; that the mechanic’s liens impressed upon the lots were properly filed and perfected.

The deed of trust was executed and recorded on March 20, 1974. A land development construction loan agreement between CMIT and Lake St. Louis Estates Co. covering the development and platting of 1320 single family residence lots was incorporated by reference in the March 20 deed of trust. The foundation work on the four lots leading to the mechanic’s liens was commenced by plaintiff-respondent on April 24, 1974 and completed during June, 1974.

Defendants-appellants contend that the work done by plaintiff-respondent was foreign to the purposes to the construction loan; that inasmuch as the deed of trust was recorded prior (March 20, 1974) to the commencement of plaintiff-respondent’s construction work (April 24, 1974), the deed of trust is superior to the mechanic’s liens claim. We find that the facts of this case to be squarely within the ambit of Drilling Service Company v. Baebler, 484 S.W.2d 1 (Mo.1972), and therefore hold that the plaintiff-respondent’s mechanic’s liens have priority over the prior recorded deed of trust.

In Drilling Service Company v. Baebler, supra, it was held that where a loan is made for a construction project under knowledge and contemplation that mechanic’s and ma-terialmen’s liens can arise from project construction, the lender is deemed to have waived claim of priority of its deed of trust as to such mechanic’s and materialmen’s liens.

In this case the construction loan agreement executed between the lender (CMIT) and Lake St. Louis Estates provided that Lake St. Louis Estates was to:

“ . . . construct or cause to be constructed upon the premises certain land development improvements, namely, developing approximately 1320 single family residential lots thereon ... together with other improvements, hereinafter referred to as the ‘Project’, which shall be completed in accordance with the ‘Plans’ designated on Exhibit ‘B’ on or before March 20, 1979, hereinafter referred to as the ‘Completion Date’. The entire Project shall be completed free of all contractor’s, mechanic’s and material-men’s liens or claims therefor or any other lien or claim which might enjoy priority over that of Lender’s Mortgage.” [emphasis supplied.]

It is evident from the foregoing that CMIT was fully aware that there was to be a single project development; that the project was substantial; that construction — not merely the clearing of land — was to be performed; that plans for the project were in existence and known to CMIT at the time the loan was made; that, critical to this case, was the explicit knowledge of CMIT that contractors’, mechanics’ and ma-terialmen’s liens could be established with such future liens having priority over CMIT’s deed of trust.

Applying the principles of Baebler to the circumstances of this case, we find that there has been a waiver by CMIT of any claim of priority over plaintiff-respondent’s mechanic’s liens and that the latter enjoys priority over the deed of trust.

Defendants-appellants claim that the plaintiff-respondent’s work for the construction of foundations for model display homes was totally foreign to the purposes of the loan, which was to be for the “developing approximately 1320 single family lots.” Au contraire — the construction of model homes was central to the purpose for which the loan was made.

Paragraph 8.2 of the construction loan agreement executed by CMIT details a home lot sales program. The model homes on which plaintiff-respondent worked were essential to interest prospective lot purchasers, to show the architectural style of the planned community for Lake St. Louis Estates and to provide lot purchasers with an informed choice as to the particular style of structures available for construction and purchase. The construction by plaintiff was logically consonant with the contemplated land sales program referred to in the loan agreement as embraced in the deed of trust. The work performed by plaintiff was within the scope of the original plans fully known to defendants-appellants from the outset. Hence, under the doctrine of waiver set forth in Baebler, the trial court correctly held plaintiff-respondent’s mechanic’s liens superior to the deed of trust lien.

The judgment is affirmed.

KELLY, P. J., and WEIER, J., concur.


author: SHANGLER, Presiding Judge.

text:
    Robert P. VAN DYKE, Plaintiff-Appellant, v. MAJOR TRACTOR & EQUIPMENT COMPANY, INC., Defendant-Respondent.
    No. KCD 28620.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    As Modified On Courts’ Own Motion Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.

      Michael J. Maloney, Popham, Popham, Conway, Sweeney & Fremont, P. C., Kansas City, for plaintiff-appellant.
    Roy A. Larson, Thomas R. Larson, Morris, Larson, King, Stamper & Bold, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The plaintiff Van Dyke sued for personal injury allegedly caused by the negligent repair of his tractor by defendant Major Tractor & Equipment Company. The defendant Tractor Company had a jury verdict and the plaintiff appeals on the ground that Instruction No. 5 which submitted contributory negligence against him was erroneous.

The plaintiff had his tractor repaired by the defendant. The day after the tractor was returned Van Dyke discovered the tractor would not start, but after he inadvertently hit the safety starter switch wire with his foot, the tractor started. He also noticed that the gear shift indicator was inaccurate except for park, but the tractor was operable so he continued to use it. The tractor started properly about two-thirds of the time during the next month. When the tractor would not start, all Van Dyke had to do was to jiggle the safety starter switch with his fingers and at the same time press the starter button, and the machine would start.

About two months after the tractor was returned from repairs, Van Dyke attempted to start the machine while standing in front of the left rear tire and reaching across to the starter button on the right side. As he did so, he was aware he had been having trouble with both the ignition and gear indicator. Up to that time, nobody had told him not to use the tractor and he did not believe there was any danger in its use. He was aware, however, of the caution given in the manual for owners that the operator should always be seated on the tractor when the engine was started. When plaintiff reached across and pressed the starter button, the tractor started in low gear and the machine rolled over him.

The issue on this appeal is the propriety of Instruction No. 5 which submitted the contributory negligence of the plaintiff:

Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:
First, plaintiff knew that the starting mechanism of the tractor was not working properly and that the gear indicator of the tractor was not working properly, and
Second, plaintiff nevertheless attempted to start the tractor while standing on the ground in front of the tractor wheel, and
Third, such conduct of plaintiff was negligent, and
Fourth, such negligence directly caused or contributed to cause any damage plaintiff may have sustained.

In addition to the contributory negligence instruction, defendant submitted Instruction No. 4 in the form of a general converse:

Your verdict must be for the defendant if you do not believe each proposition submitted to you in Instruction No. 3.

Instruction No. 3 submitted the theory of recovery for plaintiff, on the model of MAI 31.01, that defendant negligently furnished him a dangerous instrumentality.

The plaintiff attacks Instruction No. 5 on grounds that (1) the first paragraph submits conceded evidentiary detail and so violates Rule 70.01(e); (2) the use of nevertheless in the second paragraph is argumentative and also violates Rule 70.01(e); and (3) the submission of Instruction No. 5 in conjunction with general converse Instruction No. 4 improperly allowed the defendant two converse submissions and so unduly emphasized the element of plaintiff’s knowledge of danger to the jury.

The current of this argument supposes that because Instruction No. 5 is not an MAI model it must be treated as a deviation from Rule 70.01(b) so that the burden to show that the submission caused no prejudice falls on the defendant, the proponent of the instruction. There can be no doubt that a party who changes an applicable MAI accepts the burden to show that no prejudice resulted from that deviation. Brittain v. Clark, 462 S.W.2d 153, 155[1, 2] (Mo.App.1970). The rule is different where there is no applicable MAI so that an instruction not in MAI must be given to fairly submit the issues. In such case the model may be modified and the standard of Rule 70.01(e) governs: that the modification instruction shall be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of evidentiary facts.” Slagle v. Singer, 419 S.W.2d 9, 13[4, 5] (Mo.1967).

Instruction No. 5 submits an affirmative defense in the form of a converse which requires independent evidence to submit it. There was no applicable MAI instruction and the presumption of prejudice for deviation's under Rule 70.01(c) is inoperable. Cf. Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259[3] (Mo.banc 1967). Rather, the general rule controls which places the burden to show prejudice on the appellant. Nibler v. Coltrane, 275 S.W.2d 270, 277[11] (Mo.1955).

It is the argument of the plaintiff Van Dyke that to conform to the MAI standard that a modification shall not require findings of evidentiary facts, the first paragraph of Instruction No. 5 should have been omitted. This argument proceeds on the premise that there was no dispute the plaintiff knew the starter and gear indicator were not working properly, and that the contributory negligence, if any can be ascribed, was that he stood in front of the tire when he started the tractor. Thus, he concludes, the submission of such facts in the first paragraph was not fair to plaintiff, because the improper operation of the tractor had nothing to do with the likelihood that the machine would start in some gear other than park.

These arguments of formal defects miss altogether the substantive failure of Instruction No. 5 as a submission of contributory negligence. We respond to the plaintiff on his own terms because, in fairness, he must be bound to his own theory of law on appeal. The result is a curious contretemps. The plaintiff says that Instruction No. 5 is formally defective because it submits too much — the conceded element of his knowledge of the dangerous conditions. The defendant says that Instruction No. 5 submits enough because the knowledge of the plaintiff was an ultimate issue on contributory negligence and a jury issue. The substantive law says, however, that knowledge and appreciation of danger are not always the same, and knowledge of danger- — even when conceded — does not relieve the need for contributory negligence to submit that the danger which caused the injury was also appreciated by the plaintiff.

The plaintiff is quite correct that his knowledge of the defective tractor mechanisms were conceded facts and so should not have been hypothesized to the jury. Epps v. Ragsdale, 429 S.W.2d 798, 802[8, 9] (Mo.App.1968). The defendant is also correct that an instruction must submit the ultimate issues of the case to the jury. Schlegel v. Knoll, 427 S.W.2d 480, 482[1] (Mo.1968). Contrary to the contentions of both plaintiff and defendant, however, that knowledge of the danger of injury was the ultimate fact for submission under the theory of Instruction No. 5, a submission of contributory negligence asserts that the plaintiff acted — or failed to act — with knowledge and appreciation of the danger of injury which his conduct entailed. Bled soe v. Northside Supply & Development Company, 429 S.W.2d 727, 732[5] (Mo.1968). Where the plaintiff admits knowledge and appreciation of the danger, a finding of that fact becomes unnecessary. Weisman v. Herschend Enterprises, Inc., 509 S.W.2d 32, 37[3] (Mo.1974). That the plaintiff had knowledge of the general condition from which the danger arose, however, does not always mean he also appreciated the danger which caused his injury. Davidson v. International Shoe Company, 427 S.W.2d 421, 424[4, 5] (Mo.1968). In such a case, the element of appreciation of danger which his conduct involved must be given to the jury. Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 221[6] (Mo.1971).

Instruction No. 5 was defective in substance because it did not submit that plaintiff appreciated the danger to which his stance in front of the rear wheel exposed him when he started the tractor. That was a jury issue because, although he knew the starter mechanism was defective and sometimes required manipulation of wires and that the indicator failed to show which gear was engaged, his previous experience was that the tractor would only start when actually in the park position — whatever the indicator read — and had never moved forward from the start position without a further shift of gear. The jury was entitled to believe — or disbelieve — that from these general conditions of danger the plaintiff appreciated the risk of injury from the danger which actually brought it on. Instruction No. 5 did not submit that element of contributory negligence and so was erroneous. See: Koirtyohann v. Washington Plumbing & Heating Co., supra. The plaintiff may not have the benefit of that error, however, because he does not claim it. His motion for new trial, points on appeal and argument contend only that Instruction No. 5 was erroneous on other, formal grounds. Those are the grounds to which the Tractor Company responded, and those are the grounds which decide this review. Del Monte Corporation v. Stark & Son Wholesale, Inc., 474 S.W.2d 854, 857[2, 3] (Mo.App.1971); Speicher v. Dunn, 530 S.W.2d 45, 46[1, 2] (Mo.App.1975).

This appeal comes down to hardly more than a matter of etiquette. There is no doubt that an MAI modification which submits conceded facts or other unnecessary evidentiary detail tends to error. That is the precept of Rule 70.01(e). That is because undue emphasis of evidence, confusion, and other unfairness which favor one litigant above the are bound to result. Brittain v. Clark, supra, l.c. 156[3]. It is useless, however, to assess Instruction No. 5 in terms of these ends because the submission simply does not state a valid theory of defense under the evidence. We can only speculate how the requirement that the jury find plaintiff had knowledge of the defects, when that proof was conceded, affected the decision for the defendant.

Were we to assume that Instruction No. 5 otherwise validly submitted contributory negligence, the sense of the contention plaintiff makes still is not apparent. That is because only two facts were submitted to the jury, the knowledge of defect and danger [paragraph first] and the position of the plaintiff in front of the rear tire as he started the machine [paragraph second], and both were conceded evidence. Thus, by the logic of MAI and his argument, the jury should not have been allowed to find either of these facts. On these terms, Instruction No. 5 would have been reduced to an abstract statement of negligence [paragraph third] and causation [paragraph fourth] without any reference to ultimate fact. That is, there would be no jury issue of contributory negligence but only cause for the court to declare the judgment for the defendant as a matter of law. 65A C.J.S. Negligence § 255(3), p. 866; Cupp v. Montgomery, 408 S.W.2d 353, 359[4, 5] (Mo.App.1966). It was not unexpected, therefore, that the jury should return a verdict for the defendant on an instruction which submitted only facts already conceded against the plaintiff. The only justiciable element of fact which remained — the appreciation by plaintiff of the danger of his conduct— simply was not submitted. Thus, as it stands, Instruction No. 5 does not state a valid proposition under the evidence. It gives a truncated, incomplete statement of contributory negligence. We cannot say paragraph first which submits the knowledge of danger, a fact not in issue, caused prejudice to the plaintiff.

The plaintiff contends that Instruction No. 5 was erroneous as an MAI modification in yet another respect, that nevertheless as used.in paragraph second is argumentative and so violates Rule 70.01(e). The defendant attempted to submit that plaintiff stood in front of the rear wheel despite his knowledge of the improper working of the starter and so was contribu-torily negligent. The term nevertheless in paragraph second was obviously meant to recapitulate the submission of paragraph first as a predicate for the finding of paragraph second. For the reasons already given, we can only speculate how this term would affect an otherwise valid submission of contributory negligence. We do not reach that question.

Finally, the plaintiff contends that Instruction No. 5 was an impermissible second converse. That instruction submits the affirmative defense of contributory negligence. Instruction No. 4 submits a general converse and is modeled on MAI 33.13. These instructions are on different subjects and serve different purposes. No. 5 presents the defense theory affirmatively based on evidence. No. 4 denied that defendant was negligent, merely traverses the plaintiffs submission, and so requires no independent evidence to support it. A defendant may converse a verdict director in one of three ways [MAI 33.01 Converse Instructions — General Comment] without duplication as to any theory of recovery. Murphy v. Land, 420 S.W.2d 505, 507[1, 2] (Mo.1967). A defendant may join a converse with an affirmative defense instruction. That practice is allowed by MAI. Fehlbaum v. Newhouse Broadcasting Corporation, 483 S.W.2d 664, 666[5-7] (Mo.App.1972); Jefferson v. Biggar, 416 S.W.2d 933, 939[4] (Mo.1967).

The judgment is affirmed.

All concur.


author: HIGGINS, Special Judge.

text:
    USA CHEM, INC., a corporation, Appellant, v. Gary Allen LEWIS and Gary Allen Lewis, d/b/a Ger-Chem Industries, Respondents.
    No. KCD 28643.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.

      Arlyn D. Haxton, Truman K. Eldridge, Jr., Dietrich, Davis, Dicus, Rowlands & Schmitt, Kansas City, Edwin Tobolowsky, Neal E. Young, Tobolowsky & Schlinger, Dallas, Tex., for appellant.
    Bernard Passer, Kansas City, Lyle M. Hanson, Mission, Kan., for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   HIGGINS, Special Judge.

Action by USAchem to enforce postem-ployment covenants in its employment contract with Gary Allen Lewis, and for damages for breach of such covenants. Appeal from judgment which denied relief and dissolved a preliminary injunction which restrained the employee from competition with USAchem. There is no question that Gary Allen Lewis violated his employment contract; and the dispositive question is whether restrictive covenants in the contract are enforceable as a reasonable restraint upon his employment. Reversed and remanded.

USAchem is the successor to National Chemsearch Corporation of Missouri. It trains and employs some 1200 commission salesmen, and its business depends upon orders generated by them. Gary Allen Lewis was hired under a standard employment agreement and it provides most of the pertinent facts:

SALES REPRESENTATIVE’S AGREEMENT

THIS AGREEMENT, made and entered into this 22nd day of August, 1967, between NATIONAL CHEMSEARCH CORPORATION OF MISSOURI, a Texas corporation (hereinafter referred to as “Company”), and Gary Allen Lewis (hereinafter referred to as “Representative”):

WITNESSETH:

In consideration of One Dollar ($1.00) and other good and valuable considerations in hand paid by Company to Representative, the employment of Representative upon the terms and provisions herein set forth, the mutual covenants and agreements herein contained and each act done pursuant hereto by either of the parties, it is covenanted and agreed as follows:

1. Company hereby employs Representative, subject to the conditions hereinafter set forth, as a sales representative on a commission basis in the territory specified in Paragraph 4 or such other territory(ies) as Company in its discretion may from time to time assign to Representative (such territory being hereafter referred to as the “assigned territory”). The Commissions to be paid to Representative shall be in accordance with the Commission Schedule and Commission Rules and Regulations of the Company as amended by the Company from time to time. Company may periodically advance to Representative against commissions earned and commissions to be earned amounts established by the Company from time to time. * * * The weekly compensation to be advanced by Company to Representative shall be in accordance with Sales Representative’s Compensation Agreement attached hereto and made a part hereof. The Company shall have the right to do business in the assigned territory under various trade names. The Company reserves the right to employ other Representatives to solicit and sell in the assigned territory.

2. Representative accepts said employment, and it is agreed that the duties of the Representative shall be such as are from time to time assigned to him * * *.

3.It is expressly recognized and acknowledged by Representative that Company and its affiliated and associated Companies are engaged in the manufacture, distribution and sale of disinfectants, soaps, detergents, cleaners, insecticides, chemical specialties, paints, water treatments, maintenance chemicals, adhesives, glues, paper products for industry and institutions, de-greasing and sanitary supply and floor maintenance materials and equipment and related products, in substantially all of the states in the continental limits of the United States, including the assigned territory. It is expressly recognized and acknowledged by Representative that (i) Company has developed and established by a valuable and extensive trade of its products; (ii) its business connections and customers have been established and maintained at great expense and are of great value to it; (iii) that Representative desires employment by Company and by virtue of such employment Representative will become familiar and possessed of the manner, methods and secrets and confidential information pertaining to such business, including without limitation; sales volume and strategy, number and location of sales representatives, and names and lists of Company’s customers and clientele; (iv) by virtue of such employment Representative will become personally acquainted with the customers and trade of Company in the assigned territory; and (v) Company will suffer great loss and damage if, during Representative’s employment by Company or at any time subsequent to the termination of such employment, Representative should (a) for himself or on behalf of any other person(s), firm(s), partnership(s) or corporation(s) sell, offer for sale or solicit the sale of disinfectants, soaps, detergents, chemical specialties, paints, water treatments, maintenance chemicals, cleaners, insecticides, adhesives, glues, paper products for industry and institutions, degreasing, sanitary supply and floor maintenance materials and equipment in the assigned territory or (b) engage in or enter the employment of or act as a sales agent or broker for the products of or as an advisor or consultant to any person(s), firm(s), partnership(s), or corporation(s) engaged in or about to be engaged in the manufacture, distribution or sale of disinfectants, soaps, detergents, chemical specialties, paints, water treatments, maintenance chemicals, cleansers, insecticides, adhesives, glues, paper products for industry and institutions, degreasing, sanitary supply and floor maintenance materials and equipment business in the assigned territory. Representative further recognizes and acknowledges that (i) it will be difficult, if not impossible to compute the amount of such loss or damages, (ii) by reason of Representative’s financial circumstances Representative cannot respond in damages in an action at law to compensate Company for such loss or damages, and (iii) Company, accordingly, is without adequate legal remedy in the event Representative violates any of the covenants contained in Paragraphs 4 and 5. Representative acknowledges that the covenants and conditions of this Agreement are reasonable and necessary for the protection of the Company’s business.

4. Representative expressly covenants and agrees that during the term of his employment, .by Company and for a period of eighteen (18) months immediately following the expiration or termination of such employment for any reason including, without limitation, termination by mutual agreement, (i) he will not at any time for himself or on behalf of any other person(s), firm(s), partnership(s), or corporation(s), sell, offer for sale, or solicit the sale of disinfectants, soaps, detergents, cleaners, chemical specialties, paints, water treatments, maintenance chemicals, insecticides, adhesives, glues, paper products for industry and institutions, degreasing and sanitary supply and floor maintenance materials and equipment within the assigned territory, viz:

A. The County of Douglas in the State of Nebraska [changed by amendment of November 3, 1967, to Jackson County, Missouri, and supplemented by amendment of April 6, 1970, to assign Wyandotte, Leavenworth, and Johnson Counties, Kansas].
* * * * * *
F. Any territory(ies) in which Representative sells, offers for sale, or solicits the sale of disinfectants, soaps, detergents, cleaners, chemical specialties, paints, water treatments, maintenance chemicals, insecticides, adhesives, glues, paper products for industry and institutions, degreasing and sanitary supply and floor maintenance materials and equipment for Company or one or more of its affiliated and associated companies;

(ii) he will not in any way, directly or indirectly, for himself or on behalf of or in conjunction with any other person(s), partnership^), firm(s), or corporation(s), solicit, divert, take away or attempt to take away any of the Company’s customers or the business or patronage of any such customers located within said assigned territory; and (iii) he will not in any way, directly or indirectly, for himself or on behalf of or in conjunction with any person(s), partnership^), firm(s), or corporation(s), solicit, entice, hire, employ or endeavor to employ any of the Company’s employees. Representative further covenants and agrees that he will not within said period of time, directly or indirectly, engage in or enter the employment of or act as a sales agent or broker for the products of or as an advisor or consultant to any person(s), firm(s), partnership(s) or corporation(s) engaged in or about to become engaged in the manufacture, distribution or sale of disinfectants, soaps, detergents, cleaners, insecticides, chemical specialties, paints, water treatments, maintenance chemicals, adhesives, glues, paper products for industry and institutions, degreasing and sanitary supply and floor maintenance materials and equipment within the assigned territory. During the term of Representative’s employment by Company or any of its subsidiaries, affiliates, successors or associated companies, Representative further agrees not to sell, offer for sale or solicit the sale of disinfectants, soaps, detergents, cleaners, insecticides, chemical specialties, paints, water treatments, maintenance chemicals, adhesives, glues, paper products for industry and institutions, degreasing and sanitary supply and floor maintenance materials and equipment and any other products of Company in any other territory or area except as provided in this paragraph or any additions or amendments thereto. Representative further expressly covenants and agrees that during the term of his employment by Company and for a period of eighteen (18) months immediately following the expiration or termination of such employment with or without cause, including without limitation, termination by mutual agreement, that he will not at any time for himself or on behalf of any other Sales Representative or former Sales Representative of Company or any of its subsidiaries, affiliates, successors or associated companies, sell, offer for sale or solicit the sale of disinfectants, soaps, detergents, cleaners, insecticides, chemical specialties, paints, water treatments, maintenance chemicals, adhesives, glues, paper products for industry and institutions, degreasing and sanitary supply and floor maintenance materials and equipment and any other products of Company within the assigned or former assigned territory of such other Representative(s). In the event of violation by Representative of any one or more of the covenants contained in this paragraph, it is agreed that the terms of each such covenant so violated shall be automatically extended for a period of eighteen (18) months from the date on which Representative permanently ceases such violation or for a period of eighteen (18) months from the date of the entry by a court of competent jurisdiction of a final order or judgment enforcing such covenant(s), whichever period is later.

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6. Representative shall not at any time, either during his employment or after the termination of such employment, divulge to others or use for his own benefit any confidential information obtained during the course of his employment by Company relating to sales, formulae, processes, methods, machines, manufactures, compositions, ideas, improvements or invention belonging to or relating to the affairs of Company, its subsidiaries, affiliates, successors or associated companies.

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9. This agreement shall be effective upon execution and may be terminated at any time by either party without notice.

10. In connection with Representative’s performance of his duties and obligations in the assigned territory, Company is furnishing Representative with sales catalogs, brochures, samples, sample cases, machinery, equipment and other sales aids and will from time to time during Representative’s employment furnish additional sales aids. It is understood and agreed that all such property so furnished Representative is and will remain the property of Company. Representative recognizes and agrees that said sales aids and other property furnished him have been carefully developed by Company over long periods of time at great cost and expense; that because of Company’s great expenditures for research and development and for exclusive merchandising tools and methods, great loss and damage will result to Company if said sales aids or other property should fall into the hands of unauthorized persons; that failure to return same in the event of the termination of his employment will cause great loss and damage to the Company; that such loss and damage is difficult, if not impossible to compute. Accordingly, in the event Representative’s employment is terminated for any reason, or no reason, Representative agrees to return all such property to Company at its main office, freight collect, and that in the event he fails or refuses for any reason, or no reason, to so return said sales aids and other property to Company, as herein agreed to he will pay to Company at its principal office the sum of $500.00 as liquidated damages and not as a penalty for breach of terms and provisions of this Paragraph.

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12. The provisions of this contract shall be fully applicable whether Representative is employed by Company, or by any of its subsidiaries, affiliates, successors or associated companies, it being understood and agreed that this Agreement may be assigned without notice at any time and from time to time by Company to or by any of its subsidiaries, affiliates, successors or associated companies. In the event of such an assignment, any such Company to which the Agreement is assigned shall automatically be substituted for the company executing this Agreement for all intents and purposes and to the same extent as if such assignee were the Company executing this Agreement.

* ⅜ * * *

SALES REPRESENTATIVE’S COMPENSATION AGREEMENT

* * * In consideration of the sum of One Dollar ($1.00) and other good and valuable considerations in hand paid by Company to Representative, the employment of Representative upon the terms and provisions set forth in Sales Representative’s Agreement of even date to which this is attached and made a part, mutual covenants and agreements herein contained and each act pursuant hereto by either of the parties, it is covenanted and agreed as follows:

1. By Sales Representative’s Agreement to which this is attached and made a part, Company has contemporaneously herewith employed Representative, subject to the conditions set forth in said Sales Representative’s Agreement, as a sales representative on a commission basis.

2. Company may weekly advance to Representative against commissions earned and to be earned amounts established by the Company from time to time. Until further notice by Company to Representative, Company shall advance to Representative weekly against commissions earned and to be earned the following amounts:

A. $100.00 per week as salary less applicable Federal withholding tax and Social Security thereon; and
B. $50.00 per week as traveling expense allowance.

3.The Sales Representative’s Agreement between Company and Representative of even date herewith and this Sales Representative’s Compensation Agreement between Company and Representative constitutes the entire agreement and understanding between Company and Representative. All representations, understandings, stipulations, agreements or promises not set forth in said agreements, shall be null and void and of no further force or effect whatsoever.

IN WITNESS WHEREOF, Representative has herewith affixed his hand and seal and Company has caused this Agreement to be executed by a duly authorized officer, all the day and year first above mentioned.

NATIONAL CHEMSEARCH CORPORATION OF MISSOURI

By s/Martin B. Grossman.

Vice President

COMPANY

s/Garv Lewis (Seal)

REPRESENTATIVE

At the time of his employment by USA-chem, Mr. Lewis had accomplished 2V2 years in business school at the University of Missouri. Execution of the standard employment agreement was a condition of his employment. He had no experience in selling chemical products or selling to industrial or institutional accounts.

Following his employment, Mr. Lewis was trained by USAchem in the methods of selling chemical specialties and given product knowledge. He was provided with a list of established USAchem customers containing account history and activity. He grew as a salesman with USAchem from a low of $43,000 in sales in 1968, his first full year, to a high of $94,000 in 1973, his last full year. In 1974 he formed his own company, Ger-Chem Industries. He began selling chemical specialties for his own benefit as early as August 28, 1974, and resigned from USAchem September 10, 1974.

During the 84-month period of employment by USAchem, Mr. Lewis received monthly accounting which covered sales made, gross commissions earned, advances against commissions, deductions from gross commissions, and net commissions earned. He was paid and accepted all such net commissions.

Since leaving USAchem, Mr. Lewis has solicited and made sales of products similar to and in competition with USAchem’s products to customers with whom he had dealt as an employee of USAchem. He has used USAchem’s customer lists and information acquired by him while employed by USAchem. USAchem introduced evidence tending to' show it was damaged by the postemployment conduct of Mr. Lewis.

USAchem filed this action December 30, 1974, seeking preliminary and permanent injunction enjoining and restraining Mr. Lewis for the 18-month period from competing with USAchem within the assigned territory, and from unfairly competing with USAchem by appropriating and using USA-chem’s confidential information and trade secrets, including customer lists obtained by Mr. Lewis during his employment by USA-chem, and for compensatory and punitive damages. A temporary restraining order was issued as prayed December 31, 1974, and it was served on Mr. Lewis January 4, 1975.

Mr. Lewis answered by general denial February 14, 1975, and hearing on USA-chem’s application for temporary injunction pending trial on the merits was conducted February 28, 1975. Mr. Lewis stipulated to the execution of the employment agreement, his employment under the agreement for some 7 years, his intentional violation of the post-employment noncompetition covenant, and his intention to continue such violation unless permanently enjoined. The preliminary injunction fully enforcing the contract issued as prayed March 18, 1975, and it was served on Mr. Lewis March 27, 1975.

Following service on him of the preliminary injunction, Mr. Lewis ceased to compete with USAchem in the former assigned territory and continued his sales to new customers in areas adjacent to his assigned territory.

Trial on the merits was conducted beginning November 4, 1975, with Mr. Lewis asserting, as he does here, that his contract with USAchem was not enforceable against him because it lacked mutuality, was a contract of adhesion, was unfair, unconscionable, and void, and its enforcement would impose undue hardship on him. He also asserted a counterclaim which the court denied and is no longer an issue. The court, although concluding as a matter of law, that its temporary restraining order of December 31,1974, and preliminary injunction of March 18, 1975, were “providently issued,” dissolved the injunction and denied all relief to USAchem.

The law on enforcement of covenants of this kind is well settled. Being in restraint of trade, they were first regarded as contrary to public policy and hence invalid. “The reason for such rule was two-fold, * * * injury to the public and injury to the employee. The restraint worked injury to the public by depriving it of the industry to which the employee was best suited, and tended to cast the employee and his family upon the public for support. It also fostered monopolies, prevented competition, and tended to raise prices. * * * The doctrine had its origin at a time when the field of human enterprise was limited, and each man’s industrial activity was necessary to the material welfare of his community. Travel was difficult, and the conditions of the times were unfavorable to the migration of persons seeking employment. * * [W]ith the improved facilities for travel, and the growing ability of workers to adapt themselves to different occupations, the reason for the rule disappeared, with the result that the courts began to uphold reasonable restraints on employment on the theory that such covenants were beneficial to * * * the employee for the reason that it enabled him to dispose of his services advantageously, and * * * to the employer because it protected him against a competition which would not otherwise have existed except for the employment. * * * Also important * * * was * * * requiring persons who, by the solemnity of contract, had assumed certain engagements, to observe them. * * * [Reasonableness of the restraint was to be determined according to the particular facts of each case, taking into consideration the subject matter, the situation of the parties, the nature of the business restrained, and the extent of the restraint with reference to time and space. * * * [I]t has been generally held that the restraint must be qualified as to time and space, and not greater than is required for the protection of the person for whose benefit it is imposed.” Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 150-151 (1949). “[T]he question of reasonableness of such a covenant not to compete is not one of fact but of law for the court according to the subject matter of the covenant and the circumstances shown to exist. * * * ‘There are certain elements which should always be considered in ascertaining the reasonableness of such agreements in employment cases, among which are the consideration supporting the agreements, the threatened danger to the employer in the absence of such an agreement, the economic hardship imposed on the employee by such a covenant, and whether or not such a covenant would be inimical to the public interest.’ * * * It is universally recognized that an employer has a proprietary right in his stock of customers and their good will and, if otherwise reasonable, the courts will protect this asset against appropriation by an employee by the enforcement of such a restrictive covenant not to compete. Renwood Food Products v. Schaefer, 223 S.W.2d l.c. 152[4].” Mills v. Murray, 472 S.W.2d 6, 11-12 (Mo.App.1971). “[C]on-tracts ancillary to employment involving trades or professions are enforceable, though amounting to limited restraint of trade, where such contracts are reasonably limited as to time and space. * * * Such contracts have been held to be valid against assault on the grounds that same are void for want of mutuality. * * * An essential element of such contracts is that the covenant not to compete be reasonably incident to the contract of employment and essential to the protection of the employer’s business and good will.” Arrow Chemical Corp. v. Pugh, 490 S.W.2d 628, 632 (Tex.Civ.App. Dallas 1973). See also Willman v. Beheler, 499 S.W.2d 770 (Mo.1973); Prentice v. Rowe, 324 S.W.2d 457 (Mo.App.1959); House of Tools and Engineering, Inc. v. Price, 504 S.W.2d 157 (Mo.App.1973); American Pamcor, Inc. v. Klote, 438 S.W.2d 287 (Mo.App.1969); R. E. Harrington, Inc. v. Frick, 428 S.W.2d 945 (Mo.App.1968); Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960); Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798 (1954).

The above-quoted cases enforced restrictive covenants against the employee in similar circumstances:

In Renwood Food Products v. Schaefer, supra, the employer was in the wholesale frozen food business through commissioned sales representatives. Mr. Schaefer was employed as a salesman and assigned a territory described as “North St. Louis,” principally in the County and City of St. Louis. Mr. Schaefer executed an employment contract in which he agreed he would not directly or indirectly engage in the frozen food business within St. Louis City and County, and Madison and St. Clair Counties, Illinois, for one year following termination of his employment with Renwood. After a training period and employment in excess of a year, Mr. Schaefer resigned and went into direct competition with Renwood in St. Louis City and surrounding areas. He defended Renwood’s action to enforce the contract’s covenants against competition on grounds the contract was void in restraint of trade, unreasonable, unfair and oppressive in preventing him from competing in a territory larger than his assigned territory, no harm to Renwood, and prior breach by plaintiff. The court found the covenant to be “entirely reasonable,” and affirmed enforcement of the restriction of time and space imposed on the employee. “Defendant was employed to solicit business from the retail dealers in frozen foods in the north St. Louis territory. His duties were to call upon customers who were already on plaintiff’s books, and also to secure new accounts. In carrying out these duties he would come in personal contact with the customers, and it is reasonable to believe that he would, during the term of his employment, obtain a personal knowledge of and influence over a great many of them, and would be in a position to entice them away from plaintiff in the event he should terminate his employment with plaintiff and set up business for himself or enter the employ of another.” 223 S.W.2d l.c. 152[4].

In Mills v. Murray, supra, the employer was engaged in business management services for dentists and doctors through management consultants. Mr. Murray was employed as a management consultant and executed an employment contract in which he agreed he would not solicit, contract for or render the same or similar services to any Mills client for three years following termination of his employment with Mills. After a training period and employment of approximately three years, Mr. Murray determined to leave Mills and establish a competing business. While still with Mills, Mr. Murray solicited clients of Mills for his own business until termination of his employment, after which he went into direct competition with Mills. He defended the action by Mills to enforce the contract’s covenants contending the covenant was unreasonable as to time. The court found the covenant limitation “reasonably necessary to protect PMM which hired and paid Murray to solicit clients and then, by the very necessities of the business, was required to stand aloof while a relationship of confidence developed between Murray and the customers of the business, thus enhancing the risk that Murray could entice them away when he left PMM’s employ. Under the circumstances it was not unreasonable to anticipate that three years must pass before Murray’s former clients are no longer subject to the influence of their former relationship. * * [T]he restrictive covenant [is] reasonable to the employer, the employee, not inimical to the public interest and therefore enforceable * * 472 S.W.2d l.c. 11-12.

In Arrow Chemical Corporation v. Pugh, supra, the employer was in the chemical specialty business through commissioned sales representatives. Mr. Pugh was employed as a salesman to sell chemical supplies to customers in Dallas and Tarrant Counties. Mr. Pugh executed an employment contract virtually identical to the standard contract used by USAchem in which he agreed that during his employment and for eighteen months following termination of employment, he would not compete with Arrow in the sale of similar products in his assigned territory. After training and employment for two years, Mr. Pugh resigned and went into business on his own in competition with Arrow in the former assigned territory. Mr. Pugh, as did Mr. Lewis, admitted execution and performance of the contracts, understanding of the postemployment covenants, and considered the contract unenforceable. The lower court refused to enforce the contract by injunction. Upon review, the judgment was reversed. “The evidence reveals that if a salesman such as appellee does his job properly * * * he can, over a period of time, build up a relationship of cordiality and confidence with the customer which is extremely valuable to both the salesman and his company. * * * It is quite evident * * * that the agreement was essential to the protection of appellant’s business. The business [is] highly competitive. Appellee was given special training by appellant to qualify him to sell appellant’s products. * * * it can only be reasonably inferred * * * that Pugh was employed by appellant for a period of eighteen months * * * and that during that time * * * he built up a substantial amount of good will and rapport with the customers he called on and that he is now continuing to call upon the same customers in the same territory, selling the same products for another company. * * * The contract * * * is not unreasonable on its face. The territory * * * is not unreasonable nor can it be said that the period of eighteen months agreed upon by the parties is unreasonable as a matter of law.” 490 S.W.2d l.c. 631, 632, 633.

In the similar circumstances of this case and under the foregoing authorities, the time and territory limitations imposed by the Lewis covenant were reasonable in protection of his employer’s legitimate interests, were not mimical to any public interest, and should have been enforced in equity by injunction.

The question of mutuality of the contract in question is answered in National Chemsearch Corp. of New York, Inc. v. Bogatin, 233 F.Supp. 802 (E.D.Pa.1964), an action which enforced the same restrictive covenants: “Mutuality of obligation is an old and seldom used doctrine which is often confused with consideration. * * * ‘ “The terms ‘consideration’ and ‘mutuality of obligation’ are sometimes confused. Consideration is essential; mutuality of obligation is not, unless the want of mutuality would leave one party without a valid or available consideration for his promise. The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations for each other.” ’ Since there is good and sufficient consideration here, the contract is not lacking in mutuality of obligation. As for mutuality of remedy, since Bogatin [Lewis] has received the benefits from the contract for two [seven] years (i. e., * * * commission * * *), the positions of the parties have changed so considerably as to give the plaintiff an equity arising out of past performance to insure that Bogatin [Lewis] carry out his promises under the contract.” 233 F.Supp. l.c. 809-810[7, 8]. See Decker and Decker Personnel Consultants v. Pigg, 555 S.W.2d 705 (Mo.App.1977).

With respect to application of the doctrine of adhesion to the contract, it is stated in Slawson, “The Standard Form Contract and Democratic Control of Lawmaking Power,” 84 Harv.L.Rev. 529 (Jan. 1971): that “A standard form contract is not always adhesive, and the absence of a standard form does not guarantee that the contract is not adhesive.” Here, the contract was a prerequisite to employment, but no one forced Mr. Lewis to accept and execute it. He, at all times, had the option to forego employment with USAchem, but he chose to accept employment in the justified belief it would be mutually gainful. As demonstrated, the contract meets the tests for enforceability; and adhesive clauses are subject to a defense of unconsciona-bleness only when exacted by the overreaching of a contracting party who is in an unfairly superior bargaining position. Fluor Western, Inc. v. G & H Offshore Towing Co., 447 F.2d 35, 39 (5th Cir. 1971). The doctrine does not affect the validity of the contract in question. National Chem-search Corp. of New York v. Bogatin, supra.

With respect to undue hardship, it is observed that the restrictions sought to be imposed on Mr. Lewis were fairly and voluntarily assumed by him as a part of a contract, the benefits of which he enjoyed for seven years, Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 259 (banc 1954); and it is evidence that Mr. Lewis has had no difficulty utilizing his training and experience to his own subsequent gain.

Inasmuch as the trial court denied enforcement of the contract improperly, it should on remand reconsider whether USA-chem was damaged by the actions of Mr. Lewis. American Pamcor, Inc. v. Klote, supra, 438 S.W.2d l.c. 292[11]. And inasmuch as the contract provided that “ ‘In the event of violation by Representative * *, it is agreed that the term of each such covenant so violated shall be automatically extended for a period of eighteen (18) months from the date on which Representative permanently ceases such violation or for a period of eighteen (18) months from the date of the entry by a court of competent jurisdiction of a final order or judgment enforcing such covenant(s), whichever period is later’ ”, the court on remand should consider whether further injunctive relief is appropriate. Arrow Chemical Corp. v. Pugh, supra, 490 S.W.2d l.c. 630.

Reversed and remanded.

All concur.

      . The consideration flowing to Mr. Lewis in exchange for his covenants not to compete was the full-time employment tendered him by USAchem, the customer lists and demonstration kits furnished, the specialized training and techniques of selling given, and the salary and expense advanced. National Chemsearch Corp. of New York, Inc. v. Bogatin, 233 F. Supp. 802, l.c. 809[6].