author: NORWIN D. HOUSER, Special Judge.

text:
    In re the MARRIAGE OF Julia NEUBERN, Petitioner-Respondent, and Ralph Neubern, Respondent-Appellant.
    No. 36894.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Raymond A. Bruntrager, Sr., St. Louis, for appellant.

      Julius H. Berg, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Action by Julia Neubern for dissolution of her marriage to Ralph Neubern, contracted on September 12, 1963. The circuit court dissolved the marriage and found the parties possessed of the following marital property: a residence located at 5825 Lotus Avenue in the City of St. Louis, a package liquor business, a joint savings account and five rooms of household furniture. The court awarded Julia the residence; all furniture, except three items; the savings account, and $10,000 in cash payable by Ralph at the rate of $183 per month until fully paid. In addition Julia was awarded maintenance of $160 per month for 12 months. Ralph was awarded the liquor business. No order was made with respect to a 1973 Cadillac automobile titled in Ralph’s name. Ralph was ordered to pay Julia’s attorney a fee of $650. Costs were assessed against Ralph, who has appealed, claiming (1) error in awarding maintenance to Julia on the ground that she is healthy, capable of earning substantial wages and was working at time of decree; (2) abuse of discretion in the division of the marital property in a grossly unequal manner, and (3) error in awarding a grossly excessive attorney’s fee and because Julia had sufficient property, including marital property awarded her, to pay her attorney.

Under the provisions of § 452.330, RSMo 1969 the court on dissolution of a marriage is obligated to divide the marital property between the spouses in just proportions after considering all relevant factors, including each spouse’s contribution to the acquisition of the marital property, including the contribution of a spouse as a homemaker; the value of the property set apart to each spouse; the economic circumstances of each spouse at time the property is divided, and the parties’ conduct during the marriage.

The parties lived together for ten years before separating. No children were born of the marriage. The family home was purchased in 1965 for $10,500. Julia provided the down payment of $400 from the •proceeds of an insurance policy on which she paid the premium. The house, which has depreciated, has a present value of $10,-000. There are three mortgages on the house totaling around $9,500. The first mortgage (balance due $5,748) requires monthly payments of $110. A second mortgage is being paid at the rate of $73.33 per month. A third mortgage is for $800. There was testimony that the parties’ equity in the house is less than $2,000. From these facts the equity appears to be $500. The parties owe no debts other than the mortgages. The parties bought “quite a few” war bonds in their joint names, “twenty five or fifty” of them, but there was no evidence of the denominations or present value of bonds.

The $4,000 savings account represents receipts from the pinball machine in the liquor store. For the first few years Julia worked there 7 days a week from 9:30 a. m. to 11 p. m. Monday through Friday, and from 9 a. m. to midnight on Friday and Saturday. During the last three years of the operation they closed on Sunday.

Ralph is a butcher by trade. He works in Granite City, Illinois for the Army Aviation Systems Command. He makes $5.84 an hour wages, 40 hours a week, with 2 or 3 hours overtime about six days a month. The parties’ joint 1973 federal income tax return shows that Ralph’s gross wages that year were $14,309. His 1970 wages were $8,500, the same in 1971, and approximately $9,000 in 1972. His 1974 gross wages were “about” $9,000 or $10,000. Ralph customarily brought home $200 every two weeks. Julia would pay current bills with the $200, supplemented by money from the liquor store. All current bills for living expenses have been paid. On days when he worked at his butcher job Ralph would ordinarily spend 2 or 3 hours waiting on customers at the liquor store. On days off he would spend 4 or 5 hours at the store. Each night Julia took $3 and Ralph took $3 from the store receipts. On Saturdays each would take $5 as wages. Ralph customarily deposited the liquor store receipts in a checking account when any money was left over after paying current household expenses. Store expenses were paid from the checking account, which was nil at time of trial.

The tax return showed that net profits made at the store in 1973 were $680. The profit and loss statement attached to the return shows an inventory at the end of 1973 in the amount of $2,855.

For telephone, utilities, food, clothing, transportation, dental and medical care, insurance, recreation and miscellaneous expenses Julia asked for maintenance in the sum of $400 per month.

Prior to her marriage Julia, who had a 10th grade education, worked as a clerk in a drugstore, as a shoe cutter, pressboard operator and as a hospital technician. She testified that she was capable of working at time of trial; that she had no physical, mental or emotional disabilities. The record does not show her age. It was stated in oral argument and not denied that she is in her middle forties.

The parties separated because of Ralph’s physical abuse of Julia; his continual drinking; cursing her in public; unexplained absences on weekends. He would leave home after the liquor store closed on Saturday night and not return until the early hours of Sunday morning. There were frequent unexplained telephone calls on the parties’ unlisted number made by females asking for Ralph. Ralph made constant threats against Julia. Ralph told Julia that if the divorce went through Julia would be walking down the street and her brains would be blown out; if she “got the store” he would blow up the store; if she “got the house” he would blow up the house. He fought with Julia continually. He kicked her. Once he bit her, as a result of which she sought medical attention. On one occasion Ralph choked Julia until she passed out. On numerous occasions he hit and struck her. One of her teeth was knocked loose. She bled as a result of one physical attack on Julia. Julia admitted that during family arguments she had called Ralph dirty names and that one time in self-defense she hit him with a telephone when he started to hit her. The record reveals nothing with respect to her contribution as a homemaker, except her testimony that she cooked on Sundays and Mondays, and that for evening meals at the liquor store she would warm up for Ralph and herself what was left over from Sunday.

We find that the circuit court had before it the following marital property for just apportionment between the parties:

(1) The package liquor business;
(2) The residence property;
(3) 5 rooms of furniture, value not assessed;
(4) Joint savings account of $4,000;
(5) 1973 Cadillac, value not assessed;
(6) United States bonds.

The circuit court awarded Julia (2), (3), and (4), plus $1,920 maintenance, payable in 12 monthly instalments of $160 each, plus $10,000 payable in monthly instalments of $183. The total value of the awards to Julia was upwards of $17,000, plus whatever the furniture is worth. For his part of the marital property Ralph was awarded (1), valued at $2,855, and three items of used household articles and appliances. Neither Cadillac nor war bonds was mentioned in the decree. The Cadillac is being purchased on time. The monthly payments are $153 and are Ralph’s obligation. We are not informed of the value of Ralph’s equity in the Cadillac. In sum, Ralph received a $2,855 liquor inventory, an equity of unknown value in a used Cadillac, a used air conditioner, television set and bedroom suite.

Ralph estimated his monthly expenses for utilities, food, clothing, laundry, cleaning, transportation, gas and bridge toll, car payment, medical and dental and insurance at $740. The decree required him to pay Julia a total of $343 each month. On this basis Ralph’s total monthly outlay would be $1,083, or about $13,000 a year. In addition, he was bound to pay $800 for a new canopy on the house and the $650 attorney’s fee. His average yearly income 1970-1974 was approximately $10,000.

Considering the four criteria named in § 452.330, RSMo 1969, we are of the opinion that the circuit court abused its discretion in dividing the marital property; that the decree entered is clearly erroneous. It is heavily and unduly weighted in favor of Julia. The net score under this decree, as far as money and property is concerned, is approximately: Julia, plus $17,000; Ralph, minus $10,000 plus the equity in the Cadillac. This is not a just and equitable apportionment, and if Ralph’s future income does not substantially exceed the average of his income for the 5-year period preceding trial (and there is no evidence of any such prospect) the circuit court will have decreed an impossibility.

There is no question that each spouse contributed materially and substantially to the acquisition of the modest amount of marital property accumulated by these parties during the 10 years they lived together. There is no question that the conduct of Ralph during the marriage was disruptive of the marital relationship. While Julia’s conduct on some occasions left something to be desired, the balance on the merits tipped considerably in favor of Julia. Ralph’s conduct during the marriage is one important factor to be considered but it is not the overwhelmingly decisive factor.

It is apparent that Julia’s principal interest and preoccupation during the marriage was the operation of the package liquor business, in which she invested long hours of her time over a period of many years. It is likewise clear that without her, or someone else, Ralph could not have operated the liquor business, because he had a full-time job elsewhere as a butcher. There is little testimony on net business earnings but what evidence there is clearly demonstrates that it would be uneconomical for Ralph to pay the wages of a store manager to operate the business in his absence, while attending to his regular job. Ralph requested that the circuit court award the liquor business to Julia. Instead the court awarded it to Ralph, who obviously cannot handle it and keep his steady employment as a butcher. On appeal Ralph renews his request that Julia be awarded the liquor business, and we are persuaded that this is proper and it is so ordered. On remand Ralph will execute appropriate papers to transfer his interest in the package liquor store business to Julia.

As to the residence: While it is likely both parties signed the notes and mortgages, there is no such evidence, so we are not advised whether one or both of the parties are legally obligated by contract to pay the $9,500 due on the residence property. Under the decree Julia retains the house and Ralph is obliged to give her a quitclaim deed and pay her $183 per month until $10,000 is paid (an amount considered sufficient to enable her to make the payments). Whether the $183 includes interest, insurance and taxes was not shown. The house is mortgaged to the hilt. There is only a small equity in the house, amounting to about $500. There is no real value there; Julia would profit little by selling the house at this time. The house does provide her shelter. We find no justification, however, in requiring Ralph, in effect, to purchase a house for Julia at the termination of this marriage. As framed the decree insures continuing friction between these parties. Ralph suggests the adverse psychological effect upon him of the house being occupied by his ex-wife and he being forced to make the mortgage payments for a long term of years “instead of correcting the problem between these two parties.” Insofar as possible the decree should provide for a clean break without unnecessary entangling provisions. The provision of the decree ordering Ralph to pay Julia $10,000 is vacated and set aside. The house is set over to Ralph as his property with the obligation on him to meet the monthly payments on the house. The decree will require Ralph to hold Julia harmless on account of any contractual obligation she may have incurred on the notes and mortgages, and will require Julia to give Ralph a quitclaim deed.

As to the furniture: An equitable division of the furniture between the parties should be made, after holding a hearing and taking evidence on what it consists of, its value, and the relative needs of the parties after Julia moves from the residence.

The $4,000 savings account was properly awarded to Julia.

The Cadillac is specifically awarded to Ralph.

The war bonds are divided equally between the parties.

On the question of maintenance: As pointed out by appellant no longer is a wife entitled to alimony on the theory that it is a judgment for the damages sustained by her by reason of the loss of the right to her husband’s support, Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066 (banc 1920), or as being in the nature of an award of damages because of her husband’s breach of the marriage contract. Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724 (1950). Marriage is now regarded as a partnership between equals. Either party upon dissolution of the marriage may be awarded maintenance, depending upon the circumstances, but a maintenance order in a proceeding for dissolution of marriage, where there are no children, is to be granted to an applying spouse ONLY upon a finding that the spouse seeking maintenance (1) lacks sufficient property, including the marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment. § 452.335, par. 1(1), (2), RSMo 1969. Julia does not lack sufficient property to provide for her reasonable needs, in view of the award to her of the package liquor business in which she has had ten years’ experience; the savings account of $4,000, and the order relieving her of the obligation to pay her attorney’s fee. That she is able to support herself through other appropriate employment has been demonstrated by her record of working in various capacities prior to marriage, and by her own testimony that she is without physical, mental or emotional disabilities and is capable of working. By the terms of § 452.335 Julia is not entitled to an order of maintenance.

On the attorney’s fee: Julia’s counsel has been paid either $450 or $500 out of liquor store receipts. We find the court’s allowance of an additional $650 reasonable under the circumstances, and sustain the court’s action in awarding counsel that sum, to be paid by Ralph.

Wherefore, the judgment and decree is reversed and set aside, and the cause is remanded to the circuit court with directions to enter a new judgment and decree consistent with the views expressed in this opinion, directing the execution of all necessary documents and papers to effectuate these directions, after conducting the hearing referred to with respect to the furniture.

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


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    Leonard MINTON, Employee-Respondent, v. ACF INDUSTRIES, INCORPORATED, Employer-Appellant.
    No. 37125.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 16, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.

      Herbert E. Bryant, Stephen M. Hereford, Clayton, for employer-appellant.
    Joe Welborn, Briney, Welborn & Spain, Bloomfield, for employee-respondent.
   McMILLIAN, Judge.

This is an appeal from the decision of the Circuit Court of the City of St. Louis affirming the Industrial Commission’s award to Employee-Respondent Leonard Minton under the Missouri Workmen’s Compensation Act, Chapter 287, RSMo 1969. We dismiss for failure to follow the Supreme Court Rules.

Rule 84.04(d) requires that the points relied on state “. . . concisely what actions or rulings of the [trial] court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . ” (Emphasis added.) In the case at bar, Employer-Appellant’s points relied on are no more than bare allegations of error; they do not apprise us of why the named actions of the court are claimed to be erroneous. This clearly does not fulfill the language or purpose of Rule 84.04(d). For a discussion of the policy reasons supporting dismissal in such cases, see Kellin v. ACF Industries, 528 S.W.2d 533 (Mo.App.1975) and Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1973).

Therefore, according to Rule 84.08, we dismiss for failure to comply with the Rules.

Appeal dismissed.

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


author: SWOFFORD, Judge.

text:
    Mary Helen LUCE, Respondent, v. Lawrence A. ANGLIN, Appellant.
    No. KCD 27144.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Don B. Roberson, Richard W. Noble, Kansas City (Shughart, Thomson & Kilroy, Kansas City, of counsel), for appellant.
    Edmund R. Lipowicz, II, Independence, for respondent.

      Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an appeal from a default judgment awarding damages for personal injuries, entered upon evidence adduced, in favor of the respondent (plaintiff) and a subsequent order by the trial court overruling appellant’s (defendant’s) alternate motion to set aside such judgment or for a new trial.

This case arose from an automobile accident which occurred on March 22, 1968. Defendant was insured by Allstate Insurance Company (Allstate) and duly reported the accident to it, and Allstate undertook his defense under its policy. No issue of coverage is involved.

The plaintiff retained counsel, Mr. Edmund R. Lipowicz II, who under date of May 17, 1968 advised Allstate and the defendant of his retention as plaintiff’s attorney. Thereafter, Lipowicz and Allstate’s claims representatives had conversations looking toward possible compromise of the claim. In April of 1971, one John Vander-lippe, a staff claims representative of Allstate, undertook these settlement negotiations, which eventually reached a stalemate with plaintiff’s demand at $3500.00 and Allstate refusing to pay more than $750.00.

According to the testimony of Lipowicz, there was no further contact between him and Allstate or any of its representatives after April of 1971. He filed suit on March 16, 1973, less than a week before the bar of plaintiff’s claim by the statute of limitations. The following day, the defendant was personally served with process, the suit papers were forwarded to Allstate by the defendant, and it undertook the handling of the claim on his behalf.

No answer was filed in the suit and on May 7, 1973, plaintiff appeared personally and by counsel for trial. The defendant made no appearance, evidence was adduced and a judgment was entered in the court below for $10,000.

On June 1, 1973, the defendant, through counsel, filed his answer without obtaining leave of court, and on June 7, 1973, he served written interrogatories on plaintiff.

On July 24, 1973, defendant served notice requesting that plaintiff’s husband be joined in the suit. On August 22,1973, the defendant filed a motion to compel answers to his interrogatories, which motion was sustained on September 21, 1973. Receiving no response, the defendant filed a motion to dismiss the action on October 12, 1973. Thereupon, plaintiff’s attorney advised the court and counsel by letter of the default judgment (entered some five months before), and on October 29, 1973, the defendant’s motion to dismiss was overruled, as moot.

The defendant thereupon filed his motion to set aside the judgment or for a new trial, which the court below overruled after an evidentiary hearing. This appeal followed.

The defendant raises two assignments of error, which may be summarized as follows: First, he asserts that the court erred in overruling his motion to set aside the judgment or for a new trial because (A) his default should be excused because the judgment was procured by “misrepresentation amounting to legal justification or excuse”; (B) he had a meritorious defense to plaintiff’s case; (C) no prejudice “will accrue to plaintiff” by setting aside the judgment; and (D) the court below “did not exercise its discretion in conformity with the spirit of the law” favoring trials on the merits. Second, he asserts that the court erred in excluding a memorandum of claims agent Vanderlippe dated March 26, 1973 (10 days after suit was filed) which was part of Allstate’s claim file on the ease, which memorandum purported to reflect an oral agreement between Vanderlippe and Li-powicz, plaintiff’s counsel, for an indefinite extension of time for defendant to answer' the petition.

Such a motion to set aside a judgment is one that invokes the sound discretion of the trial court, and this court will not interfere with the trial court’s action unless the record clearly and convincingly demonstrates an abuse of such discretion. Cooper v. Armour and Co., 222 Mo.App. 1176, 15 S.W.2d 946, 951[3] (1929); Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Askew v. Brown, 450 S.W.2d 446, 450[6] (Mo.App.1970). There are a number of broad elements and considerations which should be critically viewed to test the trial court’s ruling on a motion to set aside a default judgment so as to’ measure its action against the exercise of acceptable discretion on the one hand, and abuse of discretion, on the other hand, the former dictating non-interference at this appellate level, and the latter commanding it.

It is the generally accepted rule that the burden is upon the movant in a proceeding of this nature to establish two basic and vital facts, namely, that he has a good reason and excuse for the default and that he has a meritorious defense to the claim. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Edwards v. Rovin, 322 S.W.2d 139, 142-143[4, 6] (Mo.App.1959); Ward v. Cook United, Inc., 521 S.W.2d 461, 470[11] (Mo.App.1975). These elements of proof are recognized by appellant and covered in his Points Relied On IA and IB. However, unless these two points are clearly established by the record, his Points IC (that no prejudice would accrue to plaintiff by setting aside the judgment) and ID (that the ruling of the court violated the spirit of the law favoring trial on the merits), standing alone, would be insufficient to sustain the burden placed upon defendant. In passing, it should be noted that it is too obvious for comment, that plaintiff would be prejudiced if the judgment were set aside. She pursued her substantive right to assert her claim; she obtained a hearing of her cause upon default; she presented evidence in support of her claim that the defendant’s automobile struck a light pole, glanced off and struck the side of the automobile in which plaintiff was riding while it was stopped in obedience to a traffic light; and, that he had been drinking. She further offered proof of her injuries and damage. She is now the creditor under a substantial and final judgment. Further, there is no dispute that the law favors the trial of litigation on the merits, but such generalization must be carefully applied to the facts of each case in the interest of justice and has no significance in the case at bar. The law defends with equal vigor the integrity of legal process and procedural rules and does not sanction disregard thereof.

There remains, therefore, as pertinent to this case, the points raised by defendant in his brief, IA and IB.

Defendant asserts that his default was justified or excused because the judgment was procured by “misrepresentation”; that his insurance carrier was “lured” into the default by an agreement with plaintiff’s counsel for an indefinite extension of time to file an answer; and, that if his insurer was negligent in handling the suit and thus permitted the default, that such negligence cannot be imputed to him.

This record shows a direct and irreconcilable conflict in the testimony of the Allstate’s claims representative, Vanderlippe, and plaintiff’s counsel with reference to the purported agreement. Vanderlippe stated, in substance, that after he received the suit papers from the defendant in March, 1973, in a telephone conversation with Lipowicz an agreement was reached that a further attempt would be made to settle the case, and that Lipowicz would contact his people (plaintiff and her husband) and call back, and that Lipowicz agreed that the time to answer would be extended indefinitely. In response to the questions propounded to him by the trial court and counsel at the hearing, he stated, however, that no specific time extension was mentioned; that nothing was said as to whether or not a judgment would be taken; that he did not advise Lipowicz that an answer would not be filed until he, Vanderlippe, heard from Li-powicz; and, that the extension was just “general” until it was ascertained if the case could be settled. He stated that in this conversation he “reiterated our position”, referring to the settlement offer of $750.00 made in 1971, and previously rejected.

On the other hand, Lipowicz testified that he had no contact with Vanderlippe (or anyone else connected with Allstate) after April of 1971, and categorically and flatly denied any agreement was made for an extension of time to file answer. Thus, the credibility of witnesses Vanderlippe and Li-powicz was directly in issue and for decision by the trial court. Obviously, the court chose to believe Lipowitz and it cannot be said that this was not based upon substantial evidence or demonstrated any abuse of discretion, and such determination of credibility will not be disturbed here.

The point that Allstate’s negligence, if any, cannot be imputed to defendant is likewise without merit. Distefano v. Kansas City Southern Railway Company, 501 S.W.2d 551, 553[3] (Mo.App.1973); Ward v. Cook United, Inc., 521 S.W.2d 461, 472-474[15, 16, 17] (Mo.App.1975), and cases cited therein. Defendant’s Point IA is ruled against him.

As to defendant’s Point IB, the record is absolutely void of any showing that he had a meritorious defense to plaintiff’s claim. The original pleadings have been examined and reveal that the tardy answer filed by defendant was in the nature of a general denial coupled with a charge of contributory negligence against the plaintiff as a guest in the automobile struck by defendant. Pleadings do not prove themselves. No evidence of any kind to support a defense was proffered at the evidentiary hearing on the motion to set aside the default. While defendant should not be required at that stage to present extensive evidence or a full-blown defense, he should be required to make some showing to the court of the existence of at least an arguable theory of defense. This was not done, and the only evidence before the court in this area was plaintiff’s account of how the collision occurred, as stated in the default hearing. The defendant, therefore, failed to meet his burden of proof as to the existence of a meritorious defense. His Point IB is ruled against him.

The defendant’s Point II relates to the court’s refusal to admit into evidence a memorandum dated March 26, 1973, purportedly written by claims agent Vanderlippe to himself reflecting the alleged telephone conversation with Lipowicz, following receipt of the suit papers from the defendant. This was identified as a part of the claim file on plaintiff’s claim for damages which resulted in the judgment here involved. When offered, the plaintiff objected on the basis that it was a self-serving statement and not shown to be a part of the business records of Allstate. The objection was sustained. This action of the trial court is now urged by defendant as reversible error. Regardless of whether or not the memorandum was shown to be a business record under the Uniform Business Records as Evidence Act (or assuming arguendo that it was so qualified) it was nevertheless inadmissible as being self-serving.

The appellant argues that since the memorandum was shown to be part of the business records of Allstate, it was automatically admissible as evidence, regardless of its contents, and also, that since Allstate was not a party to the suit, the document should not have been excluded upon the basis of its being self-serving. There is no validity to this position. The applicable statute, Section 490.680 RSMo 1969, after enumerating the necessary steps to identify the records as qualified under the Act and providing that such are admissible evidence, concludes:

“ * * * if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The trial court is given broad discretion in the applicability of and compliance with the statute. Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 683[13, 14] (Mo. banc 1959).

When business records are qualified under the Act, two things are accomplished: One, possible hearsay objections to such records are eliminated; and second, the records become generally admissible. Recognizing this rule, the court in Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666[4, 5] (1956), following a number of earlier cases cited therein, said:

“We do not hold, however, that the proper qualification of hospital records under the Act necessarily makes all parts of the record automatically admissible. If specific and legally proper objections are made to parts of the record on grounds other than hearsay generally, such parts may be properly excluded. * * * And it has been said that the Act does not make relevant that which would not otherwise be relevant. * * * In other words, all that the Act does, essentially, is to eliminate the hearsay objection.” (Emphasis supplied)

While counsel have cited no Missouri case (and independent research has discovered none) which specifically applies this rule to the claim files of liability insurer carriers, there is no logical reason why such should not apply to that kind of business record. Although the defendant here did not attempt to offer the whole claim file, he attempted to qualify the whole file under the Act and then had marked as an exhibit and offered only the March 26, 1973 memorandum of Claims Agent Vanderlippe. The defendant has not filed the rejected exhibit with the court and has thus violated Rule 81.15 and the court, therefore, has had no opportunity to see its exact wording. But enough appears from the record to conclude that it contained a terse notation of the alleged agreement with Lipowicz for an indefinite extension of time to answer in substantially the same (but abbreviated) form as Vanderlippe’s oral testimony. The facts as put forward by Vanderlippe were all before the court, so it is difficult to see how the admission of the memorandum would have strengthened the position of defendant, which the court did not ultimately accept in arriving at a decision.

The position of the defendant on the corollary argument is somewhat obscure, but the conclusion is reached that his stand is taken, not upon the premise that the memorandum did not contain self-serving statements, but rather the objection is not tenable because Allstate was not a named party to the litigation.

Prior to the 1975 decision in Ward v. Cook United, Inc., supra, the appellate courts had not undertaken to define the exact relationship of claims representatives of the insurer to insureds with reference to the events and commitments of the litigation. Indeed, as pointed out in Ward, the courts of the various jurisdictions are not in accord in this area. The weight of authority heretofore has been that the relationship was that of independent contractor. The “modern” rule is that it is one of principal and agent. Some textbook authors describe the relationship as so complex that it does not fit precisely into one of the niches of the law, and that it partakes in part of an agency relationship, that of an independent contractor, and in many cases that of a fiduciary. Appleman, Insurance Law and Practice, Vol. 7A, Section 4681, pp. 423-424, and Footnote 5 at page 424.

In Ward v. Cook United, Inc., supra, 521 S.W.2d 461, 472-474[15-16] (Mo. App.1975), this court held that the relationship that existed between a defendant-insured and the claims manager of its liability insurer carrier was that of principal and agent, and that the negligence of the agent was therefore imputable to the principal. No reason has been advanced, nor does one appear, why the reasoning in Ward does not apply with equal force in the case at bar. It follows that Vanderlippe occupied the position of agent to defendant, Anglin, in the handling of the plaintiff’s claim against him; that Vanderlippe’s conduct of the negotiations leading to the default were the acts of and chargeable to the defendant; that Allstate though not a named defendant, was in fact a real party in interest; and, that the objection to the memorandum by Vanderlippe of March 26, 1973 (that it was self-serving) was properly sustained. To rule otherwise and permit the introduction of self-serving statements in the nature of office memoranda written by a liability insurer’s claims representative to himself or any intra-office memoranda of such a nature upon the basis that the insurance carrier was not a named party to the suit, could open a vista of possible abuse of appalling magnitude. Defendant’s Point II is ruled against him.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Lenora Iris LANEY (now Moore), Appellant, v. Howard Dean LANEY, Respondent.
    No. KCD 27267.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Allan R. Browne, Kansas City, for appellant.
    Albert L. Hencke, Independence, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment modifying divorce decree by terminating husband’s liability to make alimony payments to former wife.

Lenora Iris Laney filed suit for divorce from her husband, Howard Dean Laney. On December 18,1972, the matter was tried before Honorable William J. Peters, Judge of the Jackson County Circuit Court. Testimony from each of the parties was heard before the court’s noon recess. When the hearing resumed, the following occurred, with the plaintiff on the stand:

“DIRECT EXAMINATION BY MR. WILLIAMS:
“Q Iris, over the lunch hour, you’ve been in contact with me, and I understand that it is stipulated and agreed, between you and Mr. Laney, that Mr. Laney intends to withdraw his answer in this case; and, that you feel it’s in the best interest of your two teenaged boys that they remain with and live with their father, if the Court grants a divorce in this matter, is that correct?
“A That’s right.
“Q And you are asking the Court to grant you alimony in the sum of $150.00 per month, for a period of two years, twenty-four consecutive months, is that correct?
“A Yes.
“Q And you’re asking for an attorney’s fee of $500.00?
“A That’s right.
“Q And you are asking for your costs?
“A Right.
“CROSS-EXAMINATION
“BY MR. HENCKE:
“Q Mrs. Laney, you understand that you will assign and transfer any rights that you might have in the house to your husband by executing quit claim deed?
“A Yes.
“Q And that all the household goods, furniture and appliances that are in the house will remain there; and that he will have the right and ownership of those items?
“A Yes.
“Q But you do have the right to your personal effects that you have in the house, that you have not removed?
“A Right.
“Q And that you have the right of reasonable visitation with your two boys? That could be at any particular time, as long as reasonable, timely notice is given; but you have the right to visit with them, at their home, or they may visit with you, outside of the home. Do you understand that?
“A Yes.
“Q There is also the matter of the chattel mortgage on the fourteen foot boat, motor and trailer. Are you willing to sign any right of title — if that is in your name, as well, are you willing to sign away your right and interest to that?
“A Yes.
“Q And to a 1969 Ford pickup truck and camper?
“A Yes.
“MR. HENCKE: I believe that’s all.
“MR. WILLIAMS: The plaintiff rests.
“MR. HENCKE: The defendant moves to withdraw his answer to plaintiff’s petition for divorce, and allow the matter to proceed as a default.
“EXAMINATION BY THE COURT:
“Q Now, ma’am, you do believe it’s in the best interest of these two children of yours to be in the custody of their father, is that right?
“A Yes, and to stay in the home.
“THE COURT: The plaintiff is granted a decree of divorce; alimony in the sum of $150.00 per month for twenty-four months. Plaintiff granted attorney’s fees $500.00. Defendant granted custody of two minor children; plaintiff to have reasonable visitation upon reasonable notice.”

The decree of record, after formal recitations and dissolving the marriage, continued:

“IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that the plaintiff be and she is hereby awarded the sum of One Hundred Fifty Dollars ($150.00) per month Alimony for twenty four months and the further sum of Five Hundred Dollars ($500.00) Attorney Fees; that the defendant be and he is awarded the care, custody and control of the said minor children, namely, Howard Duane Laney and Kenneth Ray Laney, born of said marriage relations, that plaintiff have the right to see and visit said minor children at all reasonable times upon reasonable notice.

“WHEREFORE IT IS ORDERED AND ADJUDGED BY THE COURT that the plaintiff have and recover of and from the defendant the sum of One Hundred Fifty Dollars ($150.00) per month Alimony for twenty four months and the further sum of Five Hundred Dollars ($500.00) Attorney Fees, together with all costs incurred herein, and let execution issue therefor against the defendant.”

On January 24, 1974, the defendant filed an application for modification of the decree. It alleged that, since the rendering of the decree, defendant had made all payments of alimony as ordered. It further alleged that plaintiff had remarried in November, 1973, and was no longer dependent upon the alimoiyy payments for her support and maintenance. The motion requested that the alimony payments be terminated.

The motion was considered on the record, including a partial transcript of the original proceedings, which included the above-quoted excerpt of testimony of the plaintiff. The court entered an order terminating alimony. Plaintiff has appealed.

On this appeal, appellant’s contention is that the alimony award in the decree of divorce was either a property settlement or alimony in gross, neither of which would be subject to modification.

That neither contractual support and maintenance (LaFountain v. LaFoun-tain, 523 S.W.2d 847 (Mo.App.1975); Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973)) nor alimony in gross (Backy v. Backy, 355 S.W.2d 389 (Mo.App.1962); Carl v. Carl, 284 S.W.2d 41 (Mo.App.1955)) is properly subject to judicial modification, once the obligation therefor has become final, is not questioned. The problem is whether or not the respondent’s obligation in this case is within either of these categories.

Insofar as the contractual obligation argument is concerned, it is clear from the transcript quoted above that no property settlement agreement was presented to the court for its approval. Although the language of the attorneys is indicative of a compromise between the parties, the fact that no agreement was submitted for the court’s approval is fatal to appellant’s argument that the decree embodied a property settlement. Gunnerson v. Gunnerson, 379 S.W.2d 861, 866-867[5] (Mo.App.1964). Furthermore, the matter of the support and maintenance to be paid plaintiff was not presented as an item agreed to between plaintiff and defendant and submitted to the court for its approval. Rather, as presented, plaintiff clearly was requesting the court to grant her alimony, likewise wholly inconsistent with the idea that approval of the court was being sought for that amount as agreed to between the parties. Gunnerson v. Gunnerson, supra. Appellant cannot prevail on this theory.

As for the alternative argument, there is no question that the court could have made an allowance of alimony in gross and, even though it was specified as payable in installments, it would retain the character of an award in gross insofar as subsequent modification might be concerned. Backy v. Backy, supra; Carl v. Carl, 284 S.W.2d 41, 43[1] (Mo.App.1955). Appellant argues that the judgment here should be construed as if it did award a gross amount as alimony, payable in installments, because otherwise'the award would be in excess of the court’s .power in that it might have imposed an' obligation payable beyond the death of the- defendant. See North v. North, 339 Mo. 1226, 100 S.W.2d 582, 585[7] (1936); Edmondson v. Edmondson, 242 S.W.2d 730, 735-736[7] [8] (Mo.App. 1951); Smethers v. Smethers, 263 S.W.2d 60 (Mo.App.1953); Jeans v. Jeans, 314 S.W.2d 922 (Mo.App.1958). Certainly, the decree should receive a construction which would sustain its validity. Jeans v. Jeans, supra.

Neither party has cited a case in which a court of this state has considered the question here raised. A similar question was raised in Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958). There the award was for payment by the husband to the wife of $75.00 per month “for a period of six (6) months only as and for alimony payments.” The court found that this was an award of alimony in gross, payable in installments, and not subject to subsequent modification. In that case, the wife, two days before the last of the six monthly payments was due, moved to modify the decree to extend the husband’s liability, alleging that she had been seriously injured and would require an operation.

The court held that the decree, considered in the light of the circumstances, evidenced an intention on the part of the trial court to definitely fix the obligations of the parties at the time of the divorce and that the award of alimony was an award in gross. The court did give weight to the use of the word “only” in the decree. 327 P.2d 1015[4],

The reasoning of that case is here convincing. The circumstances surrounding the entry of the decree point to a purpose of the parties and the court to arrive at a final determination of the rights and liabilities of the parties. Had the court included in its decree the gross amount to be paid as alimony, the matter would have been free from doubt. However, the absence of such a provision here should not preclude the same result.

Reversed and remanded with direction to enter a new decree disallowing the motion for modification.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Pamela Jane HERGENRETER et al., Respondents, v. Lillian M. SOMMERS et al., Appellants.
    No. KCD 27300.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.

      Sommers & Holloran, Inc., Don B. Som-mers, St. Louis, for appellants.
    William K. Waugh, Jr., John C. Monica, Stephen D. Aliber, Kansas City, for respondents; Shook, Hardy & Bacon, Kansas City, of counsel.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which determined that respondents are the equitable owners of real estate and enjoined sale of the property in execution of a judgment against respondents’ parents and others. The question is whether respondents are entitled to the benefit of a resulting trust for the full value of the property as found by the trial court. Affirmed.

Pamela Jane Hergenreter, Gail Lynn (Hergenreter) Nieman, Vickie Ann (Her-genreter) Alvord, and Susan J. (Hergenreter) Moke are the daughters of Victor and Beulah A. Hergenreter. Lillian Sommers is a judgment creditor of Victor Hergenreter, Beulah Hergenreter, John W. Newhart, Ruth L. Newhart, and C. D. Newhart; H. C. Myers, Sheriff of Buchanan County, attempted the enjoined execution on the judgment against the real estate in question.

On July 10,1968, James W. and Dorothea V. Wilson conveyed the real estate in question to Victor and Beulah A. Hergenreter, husband and wife. On February 19, 1972, Victor and Beulah A. Hergenreter conveyed the property to their daughter Susan J. Moke.

On August 28,1969, Lillian M. and Samuel L. Sommers instituted suit on a promissory note executed by Victor Hergenreter, Beulah Hergenreter, John W. Newhart, Ruth L. Newhart, and C. D. Newhart. On January 14, 1971, Mrs. Sommers (Mr. Som-mers having died) obtained judgment on the note. On August 22, 1973, Mrs. Som-mers caused execution on the judgment to issue; and on August 24, 1973, the sheriff levied execution on the property in question, standing in the name of Susan Moke. Notice was given that all right, title, interest, claim, and estate of Victor and Beulah A. Hergenreter in the property would be sold to satisfy the execution. Respondents were not parties to the suit on the note in which Mrs. Sommers obtained her judgment, and brought this action to enjoin the execution sale.

Respondents alleged: Although the deed from James W. and Dorothea V. Wilson to Victor and Beulah A. Hergenreter recited a consideration of $10 paid by Victor and Beulah A. Hergenreter, the consideration was paid by respondents who, at the time, were minors, in that they furnished their parents $2,250 “with the request, direction, express agreement and understanding” that their parents purchase the land in question for them by paying $2,250 to the grantors “as a cash down payment and executing a Deed of Trust for the balance of the purchase price.” Victor and Beulah A. Her-genreter, on July 10, 1968, completed the purchase of the property as trustees for the children as agreed, using the $2,250 furnished them for the down payment and executing a deed of trust for the balance. Since the purchase, respondents have made all payments of principal and interest, have been the sole owners and recipients of all income derived from the property, and have paid all expenses incurred in operation and maintenance of the property. The deed of February 19, 1972, from Victor and Beulah A. Hergenreter to Susan J. Moke conveyed the property to her “to hold for herself and her sisters.” Victor and Beulah A. Hergen-reter do not now own, nor have they ever owned, any right, title, interest, or estate in the property in that it was at all times charged with a trust in favor of their children “in whom the beneficial interest lies.”

The foregoing allegations are sufficient to state a cause of action for a resulting trust in that consideration for the property is said to have been paid by persons other than those in whose name the title was taken. Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392, 394[3] (1940); Scott v. Ferguson, 235 Mo. 576, 139 S.W. 102 (1911); Laughlin v. Laughlin, 291 Mo. 472, 237 S.W. 1024 (banc 1921). Appellant Sommers denied such allegations and the cause went to trial on the issues thus presented.

Victor Hergenreter identified the general warranty deed from James W. and Dorothea V. Wilson, dated July 10,1968, and the deed of trust on the property of the same date, executed by him and his wife to Peoples Home & Savings Association to secure their note for $13,650, payable in monthly installments of $235 beginning August 10, 1968. He and his wife and their four daughters previously had discussed such a transaction. The children had some money and some deposits in some savings accounts and it was decided that the children should take their monies and buy some real estate. The deed of July 10, 1968, was taken and the deed of trust was given on behalf of the children pursuant to this idea. When the transaction was first contracted, Mr. Her-genreter made an earnest money payment of $500. The total down payment when the deed was taken was $2,250. “I paid five hundred dollars down, and I paid five hundred dollars later, out of my funds, because the children could not get their accounts closed. * * * and they raised the rest of the money and made the down payment, and later they paid back the thousand dollars. * * * we didn’t want to draw money out and lose some interest. It was delayed for several weeks so that they could draw their money, and at that time I made the down payment * * * I had an understanding and they knew * *

The children repaid their father by checks for $800 and $200; the remaining $1,250 came from their savings accounts and a check they had for labor performed. Three checks were in evidence, drawn on the account of “Hergenreter partnership By Susan Hergenreter and/or Vickie Hergen-reter.” One dated June 10, 1968, to James W. and Dorothea V. Wilson for $1,250 and one dated July 25, 1968, to Victor Hergen-reter for $800 were signed “Hergenreter Partnership by Susan Hergenreter”; the third dated November 4, 1968, to Victor Hergenreter for $200 was signed “Hergen-reter Partnership by Vickie Hergenreter.” Mr. Hergenreter deposited his checks in the First National Bank of St. Joseph. He had never had any interest in the children’s partnership bank account which was opened in The American National Bank on June 27, 1968, with a deposit of $2,160.83, consisting of $77.25 in currency and silver for “advance rent collected by the seller which he turned over,” and $2,083.58 made up of the following: Four checks drawn June 24, 1968, in payment of notes of the Kansas District of the Lutheran Church, endorsed by Gail Hergenreter for $291.83, Pam Her-genreter for $132.65, Vickie Hergenreter for $446.56, and Susan Hergenreter for $318.36; one check drawn June 20, 1968, in payment of a savings account in the Western District of the Lutheran Church, endorsed by Susan Hergenreter for $476.16, and a payment June 25,1968, of $418.02 for microfilming work performed by the girls for the probate court. The five checks issued by the Lutheran Church also contained Mr. Hergenreter’s name. He had no interest in the checks; they represented savings accounts the children had with the Lutheran Church compensation fund and came from money the children had accumulated over a period of years which they had received on various occasions and for labor performed.

Also on July 10, 1968, Victor and Beulah A. Hergenreter executed a general warranty deed to their four daughters “to fulfill the agreement I had with the children that the property was theirs.” The deed was not delivered or recorded “because there were four minor children involved”; it was his way of putting the understanding and arrangement in writing. His purpose was “to show that it was their property. In case anything happened to us, it would be theirs.”

The recorded deed of February 18, 1972, from Victor and Beulah A. Hergenreter was to Susan J. Moke only because “by this time Susan had reached the age of twenty-one; the other three were still minors,” and the purpose of the deed was “to get our property matters in order; to get the property transferred to the children.”

All rents and profits realized from the property were received by the Hergenreter children who placed them in their partnership account out of which they made regular payments on the deed of trust, paying it in full on schedule, and paid taxes and upkeep on the property. Mr. Hergenreter had made no attempt to treat the property as his own.

Edwin A. Bird was the real estate broker who handled the real estate transaction in question. “The agreement on the contract was that they [buyers] would secure a loan within thirty days. And after about three weeks had gone by, Mr. Hergenreter informed us that the money he was getting for the down payment would be delayed until sometime around July 1. * * * And I went back to the seller, Mr. Wilson. He agreed that if he would pay five hundred dollars more down and hold it and leave it in escrow with me * * * they proceeded to make their loan arrangements at the Peoples Home Savings. Then I was called in to bring in the escrow money the 10th of July on the closing * * * the delay * * ⅝ was that the money was coming from the girls’ savings accounts, that they were purchasing the property for them. They would be losing some interest so there was some time involved that he needed to arrange this.”

Susan J. Moke was present at the closing of the transaction in question to write the $1,250 check for the balance of the $2,250 down payment. She wrote the check on the Hergenreter partnership account which she and her sisters had set up “as soon as we received the funds from our savings accounts. ⅜ * * this was to be for the sole purpose of purchasing this apartment house, making the repairs on it, receiving rents on it, and just maintaining this property.” She also wrote the $800 check to her father. “The partnership paid him for the thousand dollars we had borrowed from him to acquire this apartment house. * * * My father acquired it for us; that was always our understanding.” Mrs. Moke identified a number of checks drawn on the partnership account by herself or Vickie, and ultimately Gail, in favor of Peoples Home Savings in full payment of the purchase money note; a series of deposit slips showing deposits of all rentals from the property in the partnership account; and income tax returns which she and her husband filed for 1969, 1970, 1971, and 1972, in which she declared one fourth of the net income from the property as taxable income to her.

Appellant Sommers contends: (I) that under the facts and circumstances existing at the time the transfer of title to the property to Victor and Beulah Hergenreter, no resulting trust arose in favor of respondents; (II) that by execution of the unrecorded and undelivered deed, Victor and Beulah Hergenreter evidenced an intention to retain title and control of the property in themselves, thus defeating any concept of a resulting trust at the time of the transaction; (III) that a resulting trust, if any, in benefit of respondents is limited to 7.9% of the proceeds of the execution sale; (IV) that no other trust can exist under the facts and circumstances because the petition and evidence violate Sections 456.010, 442.380, and 442.400, RSMo 1969, requiring instruments purporting to create a trust to be in writing and recorded.

Appellant argues: (I) that the facts and circumstances do not satisfy the rule of the cases that a resulting trust must arise, if at all, at the instant the deed is taken and cannot be created by subsequent occurrences; that no resulting trust arose because the agreements between respondents and their parents were made by children who could not become legally obligated to comply with them, were at best “family agreements,” should not have been considered, and the children’s performance of them was subsequent to the time the deed was taken; (II) that no resulting trust arose because the unrecorded and undelivered deed and the subsequent deed to Susan J. Moke showed that title was to pass to the children upon the happening of an event in the future “in case anything happened to us.” Appellant asserts that “there was much controversy” about the source of funds of the children which were deposited in their Hergenreter partnership account to argue (III) that, at best, $1,250 of the purchase price of $15,750 was paid by the children which amounts to an interest in them of 7.9%, and that since the remainder of the purchase price came from the obligation of Victor and Beulah Hergenreter paid from rents received from the property, such additional sum should not be considered to increase their interest; (IV) that any agreement between respondents and their parents was not in writing and could not give rise to an express trust.

Examination of respondents’ petition shows that although “express agreement” was used in describing the understanding between respondents and their parents, there was no attempt to plead an express trust. As previously determined, the petition is sufficient to plead a cause of action for a resulting trust; and, as recognized by appellant, the case was “tried on the theory of a resulting trust in favor of plaintiffs.”

A resulting trust arises by operation of law from the facts in a transaction, and not by operation of an agreement. If the transaction is an express oral agreement providing for a conveyance of land, it becomes at once an express trust, and not a resulting trust; it cannot be established by parol evidence due to the prohibition of the Statute of Frauds. Bender v. Bender, 281 Mo. 473, 220 S.W. 929, 930[5] (1920). However, existence of an express oral agreement on the part of a grantee to hold land for the payor of the consideration does not destroy the resulting trust or cause the transaction to be judged as an attempt to create an express trust. Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 148[4-6] (1955); Padgett v. Osborne, 359 Mo. 209, 221 S.W.2d 210, 212[3] (1949); Carr v. Carroll, 178 S.W.2d 435, 437[3] (Mo.1944); Mays v. Jackson, supra; Condit v. Maxwell, 142 Mo. 266, 44 S.W. 467,469 (1897); Smithsonian Institute v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793 (1898).

The evidence shows it was understood that respondents’ parents would purchase the real estate in question and hold it for the benefit of their daughters, rather than to create an express trust for future conveyance of land. Such agreement showed the relationship of the parties, the nature of the transaction between them, and that the consideration of the transaction was paid by or was the obligation of persons other than those in whose name the deed was taken. The oral agreement confirmed the existence of a resulting trust and was not the vehicle of an invalid express trust. Mays v. Jackson, supra. See also 2 Bogert, Trusts & Trustees, §§ 454, 461 (1964); 3 Scott on Trusts, § 404.1 (1967).

Admission of evidence of the understanding or agreement between respondents and their parents is consistent with the rule that parol evidence is admissible to establish a purchase money resulting trust; and since one of the issues is the intent of the parties prior to and contemporaneously with acquisition of legal title to the property, existence of a resulting trust is strengthened by consistent oral understandings that the grantees have taken title on behalf of beneficiaries of the trust. Decker v. Fittge, supra; Padgett v. Osborne, supra; Carr v. Carroll, supra; Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152, 156[6] (1956). Under these authorities the testimony of Victor Hergenreter and Susan Moke was admissible to show the intent and understanding between respondents and their parents that the parents purchased the property and took legal title for benefit of their daughters. Similarly, the unrecorded deed of July 10, 1968, was properly admitted on the issue and in confirmation of the intent and understanding of the respondents and their parents.

Missouri follows the general rule that where one pays the purchase price for land with legal title taken in another, a presumption arises that the latter holds the property under a resulting trust for the payor. Davis v. Roberts, supra; Carr v. Carroll, supra; Ferguson v. Stokes, 269 S.W.2d 655 (Mo.1954); Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981 (1936); Scott, supra, § 440. This theory is founded on an assumption that one who provides purchase money intends to receive the benefit of the purchase and the law will imply that intention in absence of rebutting facts and circumstances. 2 Bogert, supra, § 454. Application of the rule is peculiarly appropriate where a child furnishes the purchase money, and for reasons of convenience, minority, or otherwise, title is taken in his parents. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 614-615 (1941). In such circumstances, the presumption is that of a resulting trust in favor of the child as opposed to a presumption of gift or advancement. Padgett v. Osborne, supra, 221 S.W.2d l.c. 212; Davis v. Roberts, supra, 295 S.W.2d l.c. 156.

In accordance with the agreement and understanding at the time the property in question was acquired, respondents repaid their parents the $1,000 advanced for earnest money, paid the $1,250 remaining on the down payment from their savings, and paid the obligation of the $13,500 deed of trust securing the balance of the purchase price from funds derived by them from rental of the property. Thus, under the authorities, a resulting trust for the full value of the property arose in favor of respondents.

Contrary to appellant’s assertion, there is no controversy concerning the source of funds in the “Hergenreter partnership account.” Evidence shows that all monies in that account at its inception came from the four Hergenreter children. Victor Her-genreter “called for” payments of the savings accounts, but he did so at the request of his daughters.

The evidence through the testimony of Mr. Hergenreter and Mr. Bird also shows that the advance of the $1,000 earnest money by the parents was part of the agreement and understanding between respondents and their parents in order to avoid a loss of interest if the children’s savings had been withdrawn earlier. There is no question that the advance was repaid after the transaction was concluded. Appellant’s argument that the advance did not give rise to a resulting trust because repayment occurred subsequent to the transaction is contrary to the rule that where one establishes he has reimbursed the purchase price to the grantee pursuant to an agreement with the grantee to do so made prior to passage of legal title to the grantee, the payor is entitled to a resulting trust in his favor; i. e., where a grantee lends funds to the trust claimant for use in purchasing property, a resulting trust arises subject to repayment of the loan. Meyer v. Meyer, 285 S.W.2d 694, 700 (Mo.1956); Scott v. Ferguson, supra; Rest., Trusts 2d § 448 (1959); Scott, supra, § 448. In such situation, the result is the same as though the grantee lent the amount to the trust claimant who in turn paid the grantor, and the conveyance was made to the lender. Although the money is not paid directly by the trust claimant to the grantor, “ * * it is paid for him by the [grantee] and the [trust claimant] is in substance the person who pays the purchase price.” Rest., supra, comment a. By virtue of the loan, the money furnished for the purchase is deemed the trust claimant’s and not the grantee-lender’s. 5 Bogert, Trusts, § 74, Hornbook Series (1973).

Appellant’s similar argument that payment of the deed of trust by respondents did not give rise to a resulting trust because payment occurred subsequent to the transaction is contrary to similar statement of the same rule, i. e., that where a trust claimant makes payments with respect to the land after passage of title but pursuant to a pre-conveyance agreement to do so, he is entitled to a resulting trust. Shelton v. Harrison, 182 Mo.App. 404, 167 S.W. 634, 638[9] (1914); Crowley v. Crowley, 72 N.H. 241, 56 A. 190, 192 (1903); Rest., supra, § 456, comment d; 2 Bogert, supra, § 456. A resulting trust arises if the grantee uses his own credit in the trust claimant’s behalf and purchases the property pursuant to a prior agreement that the trust claimant will exonerate the grantee and satisfy the indebtedness incurred. Meyer v. Meyer, supra; Mays v. Jackson, supra; Scott v. Ferguson, supra.

Crowley v. Crowley, supra, has been recognized in Missouri decisions, e. g., Adams v. Adams, supra, Cassity v. Cassity, 240 S.W. 486 (Mo.App.1922), and is in point. Plaintiff son, age 17, made a down payment on a farm he desired to purchase. The seller refused to convey to a minor; plaintiff’s father took legal title and executed a note and mortgage for the balance of the purchase price, all pursuant to an agreement between father and son that the son would make the payments on the note, which he did. The father died; plaintiffs stepmother refused to convey legal title to plaintiff, and he brought suit to establish a resulting trust. The stepmother argued that no resulting trust was possible because the full purchase price was not paid at the time of the transaction in that the plaintiff was not obligated on the note and his payments occurred subsequent to the transaction. The court rejected her argument and emphasized that if the son induced his father to execute the note and at the time of its execution agreed to pay it, a resulting trust arose by implication. “It matters not how it is paid — whether by money on hand or borrowed, or by the promise or obligation of the cestui que trust himself, or of some other person procured by him for the purpose.” 56 A. l.c. 192. Unenforceability of the minor’s promise to pay, if so, is immaterial because payment of the obligation has been made in full. Crowley v. Crowley, supra.

Appellant suggests that Davis v. Roberts, supra, is “closely analogous” and supportive of her position. However, trust claimant Davis, in contrast to the disabilities of the Hergenreter minors, was an adult livestock trader at the time the property in question was purchased and could have taken title in his own name and executed the deed of trust in his own right if his intent was to own the entire beneficial interest in the property. Also by way of distinction, it was noted that claimant Davis purchased rather than paid notes secured by the deed of trust, and “did not consider the notes * * to be his personal obligation and he had assumed no unconditional obligation to pay any of these notes.” 295 S.W.2d l.c. 157.

Appellant’s argument that the testimony of Victor Hergenreter with respect to the unrecorded deed showed that the property was to vest in the children upon the death of their parents overlooks the evidence which shows that the intention of respondents and their parents was that the children were immediately vested with the beneficial interest in the property at the time of its purchase. Ambiguity, if any, in Mr. Hergenreter’s testimony was resolved by the court in favor of the deed being evidence of present interest in the children rather than ownership upon future happening. Cf. Bender v. Bender, supra, 220 S.W. l.c. 930[5], where no trust resulted in the grantees’ children at the time the conveyance was made “but it was contingent upon the happening of an event in the future— the separation of their parents [grantees].”

Nor does the recorded deed to Susan J. Moke defeat a resulting trust in these circumstances, because the evidence surrounding it reinforces the understanding that the parents were holding legal title for their children during and because of their minority. Adams v. Adams, supra. Insofar as the evidence in this case shows, Mrs. Moke now holds the legal title to the property for the benefit of herself and her sisters.

Judgment affirmed.

All concur.


text:
    NATIONAL BEEF PACKING COMPANY, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Respondent.
    No. KCD 27303.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    George M. Winger, William G. Levi, Kansas City, for appellant.
    Daniel M. Dibble, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

National Beef Packing Company brought this action against The Atchison, Topeka & Santa Fe Railway Company to recover the sum of $11,274.40 (plus interest) which it claimed was the value of unreturned meat hooks loaned by National for use in shipment of its products over Santa Fe routes. The claim was based upon alleged contracts of bailment between plaintiff and defendant. A jury failed to agree upon a verdict. Thereafter, the trial court sustained defendant’s motion for a directed verdict and entered judgment accordingly. Plaintiff appeals.

National Beef Packing Company (“National”) is a corporation engaged in commercial slaughtering and meat packing business. Its principal business during the period here involved was in Kansas City, Kansas. The Atchison, Topeka & Santa Fe Railway Company (“Santa Fe”) was one of several rail carriers the services of which were used by National in shipping its products.

Shipments by National originating in Kansas City, Kansas and handled by Santa Fe were made in refrigerated trailers supplied by Santa Fe. The trailers were loaded on railroad flat ears and delivered to destination by Santa Fe and connecting carriers. Frozen animal carcasses loaded by National into the trailers were suspended from detachable hooks which hung from rails in the trailer. Some hooks were longer than others, hence “long hooks” and “short hooks” were involved. The number of each type required for a shipment depended upon the type of carcasses involved.

When National planned a shipment via Santa Fe, a National employee would call a clerk at the Santa Fe freight station and request a trailer or trailers for a specified day and time and also request the number of meat hooks required to load the particular trailer. When Santa Fe had the necessary hooks they sent them in the trailer. If the number required was not available, they would send what they had. In numerous instances the trailer was sent with no hooks.

When the trailer arrived at National, the loading foreman would check the trailer and the number and condition of the meat hooks. If Santa Fe had furnished less than the necessary number, hooks to supply the deficiency were taken from a stock owned by National. The loading foreman told National’s scaler the number of National hooks, if any, used for each load and the scaler would enter the number of such hooks on a hook bailment form which included the trailer number and the destination of the shipment.

The bailment form together with the scaler’s record of the weight of the shipment went to National’s billing clerk. The billing clerk prepared the bill of lading for the shipment. Whenever a hook bailment was involved, he wrote on the face of the bill of lading the number of long and short hooks furnished by National.

When the Santa Fe driver arrived at National to pick up a loaded trailer, he was given the bill of lading, the original of which he was required to sign and leave with National. Where a hook bailment was involved, he was also given two copies of the hook bailment form, the original of which he signed and left with National. The driver retained a duplicate copy of the hook bailment. (The record is silent as to what the driver did with the copy.)

The bailment contract was in the following form:

“In consideration of the delivery to bailee [Santa Fe] by bailor [National] of the following described property to be used by bailee to facilitate the shipment described in the upper right hand corner hereof:

"_Long Hooks at 60‡ each $_
"_Short Hooks at 40‡ each $_

“bailee agrees to return same to bailor, in as good condition as when received, ordinary wear and tear excepted, by delivery thereof to bailor’s origin plant within 10 days from date thereof, and to obtain bail- or’s receipt for same on the duplicate of this form. It is further agreed that should bailee fail to so return the said property, bailor is entitled to bill bailee for value of the hooks and racks not so delivered and bailee agrees to remit without delay.”

This litigation involves hooks supplied by National in this manner for Santa Fe shipments from December, 1967, to March, 1969. During that period, Santa Fe would accumulate hooks at its freight station and, based upon their records of the number they had been short in trailers furnished National, would from time to time send drums and barrels containing meat hooks to National in numbers ranging from some 200 to 3000 hooks.

National’s billing clerk kept a record of the hooks so furnished by National and those so returned by Santa Fe. According to his record, for the period involved, Santa Fe was short on returns by 18,737 long hooks and 13 short hooks, of a total value of $11,247.40.

Sometime in March, 1969, Santa Fe drivers were directed to stop signing the hook bailment form on National shipments. National continued to prepare the bailment form which was used to record the hooks furnished on Santa Fe shipments. The hooks allegedly not returned on that system were part of National’s original demand upon Santa Fe, but at trial, these hooks were eliminated from the claim.

The Santa Fe general freight agent in charge of its Kansas City, Kansas freight station testified that he consulted with National’s general manager following receipt in January, 1970 of a demand upon Santa Fe from National for settlement of the hook account. According to the Santa Fe agent, Santa Fe was “basically even” with National on hooks at that time. According to him, he had been unaware that Santa Fe drivers had been signing the National bailment form. When he learned of the practice in March, 1969, he told the drivers’ supervisor that he “did not see how they could sign for something they had no idea what they were signing for.” Apparently this observation was sufficient to put an end to their signing the bailment forms.

Santa Fe had a duly published tariff covering the return of meat hooks. Its basic provisions were:

“MEAT HOOKS AND RACKS:

“Rates named in this tariff on: .

“Meats . . . include transportation of and return to origin point named in this tariff without additional charge, Meat Hooks and/or Racks, used in transportation of the commodities enumerated above, in refrigerator trailers. Shipper must certify on the bill of lading and shipping order the number and size of Meat Hooks and/or Racks used for loaded movement.

“ ‘Bill of lading and/or shipping order (See Note 2) must be issued for the return movement of meat hooks and/or racks. Such document must show reference to the loaded movement of meat hooks and/or racks from the origin point named in this tariff, and must be tendered at the time the empty trailer is returned to the railroad. The return movement without additional charge will apply only via the carrier or carriers which transported the loaded movement and will be in the type of service most convenient to the carrier. The number and size of Meat Hooks and/or Racks on the return movement and the following certification must be shown on the bill of lading and/or shipping order covering the return movement.’

* * * * * *

“NOTE 2. — Bill of lading and/or shipping order must show the origin line of loaded movement as consignee.

"CERTIFICATION
"This is to certify that.long Meat Hooks
and.short Meat Hooks or.Meat
Racks (Shippers load and count) as described herein
moved inbound via.from.,
(Name of Carriers) (Shipper)
from.on Waybill No.dated
(point of origin)
.in Trailer No.

“In the event empty trailers are returned to the railroad without Meat Hooks or Racks, the shipper, consignee or their agent must so certify on document furnished by carrier.”

Santa Fe’s position in the trial court and the basis of its motion for judgment, eventually sustained, was that the bailment contracts were incompatible with the tariff and that the terms of the tariff had not been complied with for the return movement of meat hooks. Respondent continues to support the trial court’s action on such grounds and on the further ground that plaintiff did not show that the Santa Fe drivers had the authority to enter into the bailment contracts on behalf of Santa Fe. Appellant, of course, contends that the bailment contracts were valid and that its evidence made a jury issue on the apparent authority of the drivers.

On this appeal the parties are in agreement as to the binding effect of a tariff provision on the parties to an interstate shipment insofar as rates and services are concerned. Appellant contends, however, that the bailment agreements were not in violation of the terms of respondent’s tariff and were, in fact, consistent with the tariff provisions. Appellant’s contention is that, under the tariff, the carrier was obliged to effect the return of the meat hooks and that the bailment agreement complements or reiterates the obligation imposed upon the carrier by the tariff.

Quite clearly, the bailment contract, if given effect, would obligate the carrier either to return all meat hooks furnished by the shipper and employed in a shipment, or to reimburse the shipper for the agreed value of the hooks. On the other hand, the obligation assumed by the carrier under the tariff is merely to return to the shipper without charge all meat hooks employed in a shipment and tendered for return shipment. Unless, as argued by appellant, the carrier is obliged to institute the return movement, the bailment contract would impose upon the carrier a greater obligation than that found in the tariff.

Appellant’s argument is premised primarily upon the evidence that during the period in question the respondent did deliver to appellant several thousand meat hooks, accompanied by bills of lading prepared by respondent. However, these were not bills of lading for the carriage of the hooks from the destination of the original shipment or shipments. All of such bills of lading offered in evidence by appellant were for the movement of the hooks from respondent’s Kansas City, Kansas freight office to appellant. This would be consistent with the terms of the tariff which require that, on the return shipment, the “origin line of loaded movement [must be shown] as consignee.” Under such provision, respondent would accumulate meat hooks returned to it and transport them to the shipper under a bill of lading covering the movement from the carrier to the shipper. Such practice would not have constituted a construction by respondent of its tariff as requiring respondent to originate the bill of lading for the movement from the original consignee at the destination of the original shipment to the carrier at the point of origin of the shipment.

The requirement of the tariff that the bill of lading for the return “be tendered at the time the empty trailer is returned to the railroad” negatives any duty on the part of the originating carrier to prepare such document. The return of the empty trailer is originated by the consignee of the shipment, not the originating carrier. That carrier would not know what had been tendered in the way of meat hooks with the empty trailer.

Therefore, the obligation which respondent assumed under its tariff was to return, without charge, all meat hooks properly tendered for such purpose. The tariff did not amount to a guarantee on the part of respondent that all of the shipper’s hooks would either be returned or the carrier would compensate the shipper for those un-returned. In attempting to so obligate the carrier, the bailment agreement would impose a heavier burden upon respondent than that found in its tariff.

“An agreement for the performance of any service in addition to, or differing from, that which the carrier is obligated to render or furnish under a particular rate specified in a tariff schedule constitutes an unlawful departure therefrom.” 13 Am.Jur.2d Carriers, § 115, p. 653 (1964). This rule is based upon the provisions of the Interstate Commerce Commission Act, 49 U.S.C. § 2, § 3(1) (the Elkins Act) and § 6(7). The rule has been applied in a wide variety of cases. Chicago & Alton R. Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033 (1912) — Contract for shipment to arrive at a particular time invalid under tariff requiring shipment to be completed in a reasonable time. Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848 (1924) — Agreement to furnish cars on a specified date invalid when tariff required only due diligence to provide cars at time desired. Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co., 201 Mo. App. 609, 213 S.W. 531 (1919) — Agreement to divert shipment invalid where tariff did not provide for diversion privileges. See also Clemons Produce Co. v. Denver & R. G. R. R., 203 Mo.App. 100, 219 S.W. 660 (1920); Southern Cotton Oil Co. v. Central of Georgia Ry. Co., 228 F. 335 (5th Cir. 1915); Jarka Corporation of Baltimore v. Pennsylvania R. Co., 130 F.2d 804 (4th Cir. 1942); Mollohan v. Atchison, T. & S. F. Ry. Co., 97 Kan. 51, 154 P. 248 (1916); Oregon-Washington R. & Nav. Co. v. C. M. Kopp Co., 12 Wash.2d 146, 120 P.2d 845 (1942).

Appellant cites Southern Pacific Company v. Miller Abattoir Company, 454 F.2d 357 (3rd Cir. 1972), in support of its argument that the bailment agreement does not constitute a rebate or material variance from the tariff. In that case a shipper was allowed to set off against a carrier’s claim for additional charges at a quarantine stoppage, a claim for damages for breach of the shipping contract to give the shipper or consignee immediate notice of a quarantine stoppage. There was no discussion in the court’s opinion of the relationship between the provision of the shipping contract relied upon by the consignee and the applicable tariff provision, if any. No contention was made that the shipping contract provision was invalid because of a conflict with or extension of tariff provisions. The court, in footnote 5 at page 360, did note expressly that the consignee’s liability for the expenses on the quarantine stoppage was governed by the tariff, not the shipping contract. Inasmuch as no question was raised as to the validity of the provision of the shipping contract relating to notice, the case is not authority for the proposition for which it is cited by appellant.

Appellant contends that the bailment contracts were not invalid as a matter of law and that they can be so found as discriminatory only if they provide an undue preference. Appellant argues that there was no evidence in this ease that the bailment contracts created an undue preference. The cases cited by appellant in support of this argument, Gamble-Robinson Commission Co. v. Chicago & N.W. Ry. Co., 168 F. 161 (8th Cir. 1909), and American Smelting & Refining Co. v. Union Pac. R. Co., 256 F. 737 (8th Cir. 1919), dealt with special charges or services not covered by applicable tariffs. Insofar as a special agreement would impose a greater liability than the tariff, the Supreme Court, in Davis v. Cornwell, supra, stated: “The contract to supply cars for loading on a day named provides for a special advantage to the particular shipper as much as a contract to expedite the cars when loaded. It was not necessary to prove that a preference resulted in fact. The assumption by the carrier of the additional obligation was necessarily a preference.” 264 U.S. at 562, 44 S.Ct. at 410.

Judgment affirmed.

All concur.