author: VANCE, Judge. GANT, Judge,

text:
    William C. SIMPSON, Appellant, v. HEATH & COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 13, 1979.
    Frank G. Dickey, Jr., Lexington, for appellant.

      James R. Odell, Jr., Sheila R. Isaac, Lexington, for appellee.
    Before GANT, LESTER and VANCE, JJ.
   VANCE, Judge.

The principal question on appeal is whether the president of a corporation who signs an agreement as guarantor of a contract executed by him as president of the corporation is individually liable on the guaranty as a matter of law when his signature on the guaranty is followed by the letters, “Pres.”

Appellant, the president of Commercial Leasing Systems, Inc., d/b/a Dollar A Day Rent a Car, signed an agreement leasing an electric sign from appellee for 60 months at a rental of $168 per month. At the bottom of the one-page lease agreement is a guaranty which reads as follows:

The undersigned guarantees prompt payment on or before the due date of all sums to become due under the foregoing agreement. .

Appellant signed the guaranty and following his signature he appended the letters “Pres.” Subsequently, Commercial Leasing Systems, Inc. failed to make the monthly payments as required by the lease, and appellee instituted this action against appellant as guarantor.

Appellant asserted in his answer that the guaranty did not obligate him in an individual capacity but only in his official capacity.

Summary judgment was entered for ap-pellee.

It is fundamental that an officer of a corporation will not be individually bound when he contracts within the scope of his authority as an agent for the corporation. Potter v. Chaney, Ky., 290 S.W.2d 44 (1956). In G. C. Riordan v. Thornsbury, 178 Ky. 324, 198 S.W. 920 (1917), parol evidence was admitted to determine whether church trustees who signed a note and affixed the word “trustee” after their names were individually liable on the note.

A somewhat different situation is presented where an officer of a corporation signs an instrument which guarantees performance by his own corporation. We are not cited to any Kentucky case which has considered this problem. In other states the decisions are divided.

In some states an officer of a corporation is not permitted to introduce parol evidence to show that he intended to bind his corporation rather than himself individually when the agreement guarantees the act of his corporation, because a holding that he was not individually responsible would render the guaranty meaningless. Kessel v. Murray, 197 Iowa 17, 196 N.W. 591 (1924).

The opposite conclusion was reached in Puget Sound National Bank v. Selivanoff, 9 Wash.App. 676, 514 P.2d 175 (1973). There Mrs. Selivanoff, who with her husband owned all the shares of the Bigstone Corporation, signed a guaranty for Bigstone Corporation and appended the letters “Sec.” after her signature. The court allowed the introduction of parol evidence to show that she did not intend to become individually bound by the signature. The letters “Sec.” appended after the signature were held to charge the bank with notice that the signer may not have intended to become individually liable. As opposed to the contention of the bank that it was in no wise responsible for the mistake of Mrs. Selivanoff, the court held against the bank because it ignored the true fact reasonably ascertainable after it was put on notice by the form of the wife’s signature.

In our view the signature “William C. Simpson, Pres.” creates an ambiguity on its face as to whether the parties intended for Simpson to be bound individually. The appellee accepted the guaranty in this ambiguous form, and it therefore had notice that appellant might not have intended any individual obligation. Even though no additional guaranty whatever would result if it be held that his signature obligated only the company of which he is president, the evidence might well establish that appellee was content to accept the contract without additional guaranty or that there was no meeting of the minds on the question of appellant’s individual liability. There were no affidavits filed with the motion for summary judgment to show that there was no genuine issue as to this point, and we do not think the instrument itself is sufficient to impose individual liability as a matter of law. The summary judgment should not have been granted because of the existence of this issue of fact.

At oral argument the parties conceded that a genuine issue existed as to the amount of damages and that the summary judgment as to damages was not proper. The facts are not sufficiently established for us to pass upon the issue of mitigation of damages. That issue is left for determination of the trial court upon remand.

We find no merit in the other issues raised by appellant.

The judgment is reversed for further proceedings consistent with this opinion.

LESTER, J., concurs.

GANT, J., dissents by separate opinion.

GANT, Judge,

dissenting.

I must dissent from the majority opinion, as I feel the crux of this case concerns what and where the appellant signed and not whether parol evidence as to his intentions upon signing should be allowed. Here the lease between the parties was signed with the corporate name. The lease was completely executed upon that signature, as no other act was required to bind it as lessee. Appellant then signed his signature followed by the abbreviation “Pres.” to the guaranty agreement at the bottom of the lease. Appellant now contends that the use of the abbreviation after his signature created an ambiguity. Was this second signature affixed solely in his corporate capacity, therefore relieving him of any personal liability on the obligation created by the lease and guaranty agreement, or was it intended, as the clear words of the agreement indicate, to bind him personally? As pointed out by the majority, acceptance of the first interpretation would force a conclusion that the guaranty agreement added nothing to the transaction. It becomes a meaningless act of signing, guaranteeing that the entity already obligated under the lease agrees to pay what it is required to pay. Kessel v. Murray, 197 Iowa 17, 198 N.W. 591 (1924). When an interpretation of facts results in rendering an act meaningless, an alternative interpretation giving substance to the act will be favored.

There are older Kentucky cases dealing with the personal liability of directors and officers who sign notes or contracts, but they are distinguishable from our present situation. In cases such as Yowell v. Dodd, 66 Ky. (3 Bush) 581 (1868), Caphart v. Dodd, 66 Ky. (3 Bush) 584 (1868), and Pack v. White, 78 Ky. 243 (1880), the notes were signed in one location only and without the actual corporate signature. In our case the appellant signed the guaranty and the abbreviation “Pres.” following his name should be regarded as descripto personae, a term descriptive of the person rather than the relationship in which he signs the agreement. 19 Am.Jur.2d, Corporations, § 1344 at 750. The separate act of signing the guaranty agreement served to reassure the lessor/appellee that an alternative source of reimbursement and financial protection was available to him, and to now hold the president/appellant free from personal liability would negate those protections and expectations.

I would therefore hold that the clear intention from the face of the document was to hold the appellant personally liable. The case of Ricker v. B. W. Acceptance Corp., 349 F.2d 892 (10th Cir. 1965), came to such a conclusion and should be applied to the present conflict. Although the guaranty agreement in that situation contained more indications of personal liability in the language used, the analysis is the same. See also American Petrofina Co. v. Bryan, (Tex.Civ.App.), 519 S.W.2d 484 (1975).

Remand for determination of mitigation and damage issues has been ordered by this Court. Both parties admit that adjudication on these questions is required. On the issue of liability, however, I feel the summary judgment originally issued by the lower court should be affirmed.


source: Caselaw Access Project

author: COOPER, Judge.

license: Public Domain

text:
    Robert A. ROOS, Appellant, v. KENTUCKY EDUCATION ASSOCIATION, a Kentucky Corporation, Doris Wilson, Wayne Harvey, Billye Jean McDade, Anna Ruth Hille, Lyndle Barnes and Dexter Meyer, d/b/a Kentucky Educators Public Affairs Council, John Ryan and Terry Herndon, d/b/a National Education Association Political Action Committee, Appellees.
    Court of Appeals of Kentucky.
    April 13, 1979.
    Ronald L. Gaffney, Donald F. Mintmire, Barnett & Alagia, Louisville, for appellant.
    John Frith Stewart, Kenneth L. Sales, Dennis Franklin Janes, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appel-lees.
    Before COOPER, GANT and WINTER-SHEIMER, JJ.
   COOPER, Judge.

This is an appeal from a judgment dismissing the action below based on the judicial finding that the United States District Court for the Western District of Kentucky was a more convenient forum for resolution of the issues raised in this case.

The decision of the circuit court was based on the doctrine of forum non conven-iens. That doctrine recognizes that there are certain instances in which a court properly vested with jurisdiction and venue may, nonetheless, dismiss an action if it determines that it is more convenient for the litigants and witnesses that the action be tried in a different forum. The convenience vel non of a given forum is not determined by a fixed set of rules, but is arrived at by a consideration of various factors on a case by case basis.

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Court noted that:

(1)mportant considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises if view would be appropriate to the action; and all other practical problems that make trial of case easy, expeditious, and inexpensive. Id. at page 508, 67 S.Ct. at page 843.

It is not pointed out in the briefs, and we fail to see, how any of the foregoing considerations or others of a similar kind could apply in anything but a substantially indifferent manner to a Kentucky circuit court and a United States district court located a few blocks from each other in the same city. Absent some particular demonstration of fact — not apparent here — we see no reason why a competent practitioner would find it less “convenient” to practice his client’s case in a state court rather than a federal court in the same city — or vice versa. Any minor differences in cost and procedure would certainly not constitute sufficient basis to deprive an otherwise competent state court of its subject matter jurisdiction. We locate in this record nothing creating the strong balance in favor of defendant which is required to deprive plaintiff of his choice of forum. See Gulf Oil, supra, at page 508, 67 S.Ct. 839.

We conclude the circuit judge misconstrued and misapplied the doctrine of forum non conveniens to the facts of this case. In doing so, we hold he abused his discretion and committed reversible error.

Our decision here should not be interpreted as being contrary to principles of judicial economy. We do not favor unnecessary, duplicative or vexatious litigation. However, there are legal methods extant for dealing fairly and economically with a situation in which the same, or almost identical, parties and issues are before both a state and a federal court and concurrent jurisdiction exists. They may still be used in this case if determined to be applicable.

Our holding here is narrow and merely represents our view that under the facts and circumstances presented here the refusal to accept jurisdiction to decide the case based on the application of the doctrine of forum non conveniens was improper. It reaffirms the principle that absent compelling or unusual circumstances, a court is duty bound to hear cases within its vested jurisdiction. See 20 Am.Jur.2d, Courts, Section 93 and citations therein.

The judgment appealed from is reversed and this case is remanded for further proceedings consistent with this opinion.

All concur.


author: SEILER, Judge. ANDREW JACKSON HIGGINS, Special Judge,

text:
    Willis L. RODGERS, Appellant, v. STATE of Missouri, Respondent.
    No. 60434.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.
    See also, Mo.App., 525 S.W.2d 447.
    Michael P. Burke, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

The appellant, movant Willis L. Rodgers, appeals from an order of the circuit court in St. Louis denying without an evidentiary hearing or appointment of counsel, his pro se motion under rule 27.26 to vacate a 35-year sentence for first degree robbery. Rodgers was convicted after a jury trial and sentence was imposed by the court under the second offender act. The state had a strong case against Rodgers. He and his companion were caught by the police after a short chase from the scene of the holdup, in possession of the loot. Defendant put on no evidence whatsoever. On direct appeal the conviction was affirmed in State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975). While Rodgers’ pro se 27.26 motion attempted to state several grounds, the one which requires attention is the claim of ineffective assistance of counsel. Rodgers’ pro se, alleged that defense counsel “was not seen until the day of trial”; that until then, movant did not even know defense counsel was on the case; that counsel held no discussions or interview with movant, did not discuss defense moves or strategy with movant at any time and made no factual investigation; that movant’s right to effective assistance “is not limited to the court room”; that counsel was not “there” in the early critical stages of the proceedings and failed to aid and assist movant “to the depths of the case against him”; that movant informed the trial court that he had not seen counsel prior to the day of trial, but the court refused his request to dismiss counsel or to grant a continuance.

The court of appeals, St. Louis district, affirmed and the matter was transferred here on movant’s application because of the general interest and importance of the question of whether a pro se petition such as above does not, in fact, state sufficient grounds at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant’s standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required. We conclude the answer is yes, for the reasons stated below, and accordingly reverse and remand with directions.

The experienced and highly respected trial judge made specific findings of fact and conclusions of law, but failed, we believe, to meet the issues inherent in the ineffective assistance of counsel claim as presented by movant’s rather disorganized yet pointed assertions. The question is largely one of law and we believe the trial court’s conclusions and judgment are clearly erroneous.

We believe it is fair to say the trial court disposed of movant’s ineffective assistance of counsel claim on the basis that the evidence as to movant’s guilt was “overwhelming” and that no allegations were made by movant as to what counsel could have done to present “any semblance” of a defense; that this failure to allege what counsel could have done by way of trial preparation was “fatal” to the claim, particularly where movant “does not even allege his innocence or claim to have a meritorious defense.”

In our judgment this is too restrictive a view of what effective assistance of counsel requires. Effective assistance of counsel is not limited to being able to produce something which would change the outcome of the trial, so that in a case where guilt is so clear that nothing could be produced to overcome it, it follows that counsel could not have been ineffective. Movant was attempting to say as much when he alleged his right to effective assistance “is not limited to the court room." Effective assistance of counsel also includes what goes on before the trial as well as what takes place afterwards. If we assume what movant alleges to be true, and we have no right to do otherwise when we are testing the sufficiency of his claim on paper, particularly where as here there is nothing in the record which contradicts his allegations of fact as to counsel’s alleged failure to consult with movant prior to trial, then we must accept as a fact that the lawyer in this case had no contact with movant until the day of the trial, at which time he appeared, introduced himself to the defendant, and proceeded to trial. To hold that a pro se 27.26 petition making such a claim can be dismissed without a hearing or appointment of counsel is not a rule with which the courts can live. Such a rule would condone last minute appointments of counsel or last minute attention on the part of counsel appointed earlier. It would encourage offhand treatment of criminal cases and would provide fertile soil for the seeding of post-conviction claims.

A lawyer who does not see his client until the day of trial and who had no communications with him before then is not meeting his responsibility as a lawyer and is not rendering effective assistance. There is more to the responsible, reasonable and thorough representation of a client than showing up on the day of trial and appearing as defendant’s lawyer in the courtroom. Counsel should have consulted with his client well in advance of trial, ascertained from the client what he stated the facts to be, and done enough investigation and checking of facts and stories to make a reasonable appraisal of the strength of the state’s case and the weakness of the defense. If counsel concluded the case was hopeless it was his duty so to advise the client and ascertain whether defendant would be willing for counsel to explore the possibility of a guilty plea and what the attitude of the prosecutor or his assistant would be in this regard and also, to the extent that it could properly be done, the attitude of the trial court with respect to any recommendations which the prosecutor might make or upon which counsel and defendant could agree. The time to commence this sort of negotiation and bargaining is before the parties arrive at the courthouse the morning of trial, by which time positions have hardened, witnesses are present, the court and the jury ready to go. All this fruitful period of time for possible disposition of the ease without a trial and with a lower sentence in exchange for a settlement — a guilty plea — is lost when the lawyer sees his client for the first time on the morning of trial.

The duty of counsel in this regard is well put in the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function, Approved Draft, 1971, p. 245, as follows:

6.1 Duty to explore disposition without trial.
(b) When the lawyer concludes, on the basis of full investigation and study, that under controlling law and the evidence a conviction is probable, he should so advise the accused and seek his consent to engage in plea discussions with the prosecutor, if such appears desirable.

In the Commentary following the above, at 246, appears the following:

b. Early Evaluation of Case
As soon as the lawyer has an understanding of the factual and legal aspects of the case he should determine whether a plea of guilty is the desirable course in the best interests of his client. If that is his informed conclusion, it is his duty to advise his client and seek the client’s authority to explore with the prosecutor the prospects of a favorable disposition without trial.
Most cases are disposed of not by trial but as the result of a plea of guilty. ... To the defendant it affords the opportunity to avoid the ordeal of trial, to mitigate the penalties, and often also to have sentence determined without having the sentencing court hear all of the adverse testimony which would be produced at trial .
Since disposition by plea is mutually advantageous in many circumstances, plea discussions are a significant part of the duty of defense counsel. Courts and prosecutors have developed criteria which guide the exercise of their respective discretions. These standards and rules-of-thumb are not to be found in the codes, case reports and other sources of law, but a working understanding of them is part of the accumulated skill and experience of the defense lawyer. Ignorance of the prevailing practices and attitudes of the prosecutor and the court as to plea discussions may be as much a handicap to effective representation as is unfamiliarity with the facts or law related to the case; hence it is imperative that the defense lawyer be aware of them. If he lacks sufficient personal experience, he should consult experienced colleagues. Legal aid and defender offices also serve as a repository of such information to which all members of the bar may turn and the expansion of such facilities gives the bar a rich source of potential assistance.

Assistance of counsel in the above respects was not made available to movant. Defendant was deprived of an opportunity to have advice of counsel on what disposition should be attempted in his best interests of the charge against him. This is no more than would be expected by anyone who employs a lawyer — the lawyer’s objective appraisal of what the client is facing and the lawyer’s advice as to the best course to follow. In his inartful way mov-ant was trying to plead this — when movant spoke of counsel's assistance not being limited to the courtroom and of counsel’s failure to assist him “to the depths of the case against him”, movant was attempting to refer to the fact that he had no help from counsel at a time when it was most needed and that counsel’s presence the morning of trial did not provide the kind of legal assistance which movant needed earlier.

The state relies on the proposition that counsel is ineffective only if his representation deprives the defendant of a fair trial, citing Sims v. State, 496 S.W.2d 815, 817 (Mo.1973). That test, however, does not dispose of the present issue, because the ineffectiveness here is claimed to have occurred before trial and pertains not to the conduct of the trial, but to that important interval when an informed decision should be made about the advisability of going to trial as compared to trying to negotiate a settlement — pleading guilty in exchange for a reduced sentence. Under the facts of the case, defendant may have had a fair trial once the case reached the trial stage before a jury, yet not have received effective assistance of counsel in responding to the charge against him. The neglect of counsel resulted in prejudice to movant’s position generally. Barker v. State, 505 S.W.2d 448, 451 (Mo.App.1974).

It does not appear in the record when counsel was first appointed for defendant in the original trial, but whether it was an early appointment and counsel did not get around to talking with the client until the day of trial or whether it was a tardy appointment, the effect on defendant was the same. The canons of ethics require that “[hjaving undertaken representation, a lawyer should use proper care to safeguard the interests of his client . . . ”, Rule 4, EC 6-4, and that “A lawyer shall not . [hjandle a legal matter without preparation adequate in the circumstances.” Rule 4, DR 6-101(A)(2).

The pro se 27.26 petition in this case states sufficient facts to warrant appointment of counsel. Counsel should promptly be appointed by the trial court, with instructions to confer promptly with movant and ascertain whether the pro se motion needs amendment to include the particulars whereby, if so, movant was injured or prejudiced by the failure of counsel to discuss defense moves with him and failure to confer and advise with movant until the day of trial, and after counsel has had an opportunity to make such amendments, the court should then reconsider the sufficiency of the petition and determine whether as amended an evidentiary hearing is warranted and if so, to afford one to movant.

The judgment of dismissal is reversed and the cause remanded for further proceedings as set forth above.

MORGAN, C. J., concurs.

ANDREW JACKSON HIGGINS, Special Judge, concurs in result in separate concurring opinion filed.

BARDGETT, DONNELLY and REND-LEN, JJ., concur in result and concur in separate concurring opinion of ANDREY^ JACKSON HIGGINS, Special Judge.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

ANDREW JACKSON HIGGINS, Special Judge,

concurring in result.

The stated question is whether the pro se motion states sufficient grounds “at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant’s standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required.”

I concur in the decision that “[t]he pro se 27.26 petition in this case states sufficient facts to warrant appointment of counsel,” and in the remand for that purpose and for other proceedings which properly may follow. State v. Herron, 376 S.W.2d 192, 196 (Mo.1964); State v. Gee, 408 S.W.2d 1, 4 (Mo.1966); State v. Keeble, 427 S.W.2d 404, 406 (Mo.1968).

I do not join with the remainder of the opinion in the discussion, unnecessary to resolution of the stated question, of the performance of trial counsel. The issue of effective assistance of counsel, when present, is for the trial court in the first instance. Rule 27.26(e), (j), V.A.M.R.

Accordingly, I concur in result only.

      . We assume that by this the trial court was continuing to refer to movant’s inability to allege any favorable facts which counsel had overlooked going to the merits in the original trial and that the trial court did not mean that innocence or a meritorious defense is a prerequisite to relief under rule 27.26, as we have held that guilt or innocence of the defendant is not to be considered under a 27.26 motion. State v. Reese, 481 S.W.2d 497 (Mo. banc 1972). And, of course, it is not a prerequisite to entitlement of effective assistance of counsel that defendant be innocent or that there not be a strong case against him or that the issue of guilt or innocence be a close one.

      . The trial court in dismissing movant’s 27.26 motion without appointment of counsel or an evidentiary hearing stated that the transcript of the original trial showed a thorough knowledge by defense counsel of the facts. It follows, then, that defense counsel knew of the hopelessness of any trial defense and that a plea of guilty would likely offer a better solution for defendant.


author: PER CURIAM.

text:
    Willis Louis RODGERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39319.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Neal P. Murphy, Clayton, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Cletus E. Rudolph, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This is an appeal from an order of the circuit court of the City of St. Louis denying petitioner’s motion for a writ of error coram nobis without an evidentiary hearing and without the appointment of counsel. We affirm.

Appellant’s motion for a writ of error coram nobis sought to vacate judgments of conviction entered on guilty pleas to the offenses of assault with intent to maim without malice, § 559.190, RSMo. and stealing from a person, § 560.156, RSMo. Both charges arose out of the same set of circumstances involving the theft of a coat from a boy on the way home from a party.

The state had originally filed two infor-mations charging appellant with assault with intent to maim with malice, § 559.180, RSMo. and robbery in the first degree, § 560.120, RSMo. Following arraignment and pleas of not guilty to these charges, the causes proceeded to trial, a jury panel was sworn and the state produced evidence. Appellant was represented by retained counsel. Before completion of the state’s evidence, both parties came before the court and the state announced its election to proceed on lesser included offenses of assault with intent to maim without malice and stealing from a person, and appellant stated his desire to enter guilty pleas to the lesser charges.

Before permitting appellant to withdraw his pleas of not guilty, the court satisfied itself as to the voluntary and understanding nature of the pleas. The pleas were accepted by the court on May 27, 1971. On August 6, 1971, appellant was sentenced to two concurrent terms of three years in the custody of the Department of Corrections, execution of which was suspended, and the court placed appellant on probation for a period of four years.

In a court order filed November 16, 1973, the court acknowledged that it had been notified by the Missouri Board of Probation and Parole that appellant had violated the terms and conditions of his probation by committing the offense of first degree robbery by means of a dangerous and deadly weapon. Appellant admitted his conviction for that offense and the court found he had violated a condition of his probation. Appellant’s probation was revoked and he was ordered to begin serving his concurrent three-year sentences.

On December 3,1976, after appellant had served the three-year sentences imposed upon his guilty pleas, appellant filed his motion for a writ of error coram nobis to vacate the judgments and sentences entered on the guilty pleas. The motion claims that the convictions were used “against petitioner to enhance the punishment” he subsequently received on his robbery conviction.

Three grounds for attacking the convictions were set forth in his motion for error coram nobis. He claimed his due process rights under the United States and Missouri constitutions were violated when the infor-mations against him were amended to different charges and distinct offenses from those charged in the original information. The second ground was that the trial court had no subject matter jurisdiction over the charge. The third ground alleged that appellant’s Fifth Amendment rights were violated in that he was subjected to double jeopardy when the state charged him with two separate crimes resulting from the same “act of force” even though the crimes had no “distinct” elements. In support of these grounds appellant indicated he would introduce into evidence records of the court and the Missouri Highway Patrol as well as his own testimony that he had no knowledge of the law and did not knowingly and intelligently waive his right to an appeal.

The trial court filed findings of fact and conclusions of law and entered an order denying the petition without an evidentiary hearing and without appointment of counsel. The court found that the allegations contained in the petition were either refuted by the record or would not entitle him to relief even if true, and further found that (1) he had not established sufficient detriment to support the writ and (2) he had waited too long a time to bring the allegations.

On this appeal, through appellate counsel, he makes one point. Appellant contends that the trial court erred in not appointing counsel to assist him in drafting his petition for writ of error coram nobis filed in the trial court. While admitting that the petition does not show such facts which would give a basis for granting the writ of error coram nobis, the thrust of his contention is that he is entitled to have counsel appointed in a writ of error coram nobis as in cases under Rule 27.26. He contends that under Rule 27.26 “the Supreme Court has afforded to an indigent movant the RIGHT to counsel when the movant seeks to have judgment and sentence vacated under Supreme Court Rule 27.26,” but a petitioner who files a writ of error coram nobis is not entitled to the same right. Thus, he argues, such a situation violates equal protection. And he urges that “a new rule” should be adopted to appoint counsel whenever a petitioner or movant indicates an “intention” to file a motion or petition. Such a rule, he argues, would reduce the number of petitions or motions because “[i]f the petitioner or movant could not relate to his attorney facts which, if true, would entitle him to relief the petition or motion would not be filed.”

Petitioner is in error when he contends that a movant who files a 27.26 motion is entitled to counsel as of right. There is no such constitutional mandate. Rule 27.26 is conditional. There is no constitutional, per se, right to counsel in every 27.26 proceeding. Winston v. State, 533 S.W.2d 709, 714-715 (Mo.App.1976). Neither is there a per se constitutional right to counsel in every case where a petition for writ of error coram nobis is filed on the grounds of indigency. Powell v. State 495 S.W.2d 633, 635 (Mo. banc 1973). A petitioner in coram nobis is treated the same as a movant in a 27.26 proceeding. There is no violation of equal protection. The right to relief in coram nobis is not absolute and is not allowed as a matter of right or routine. The writ will issue if it is made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to the applicant and that he will receive some benefit from the relief sought. Arnold v. State, 552 S.W.2d 286, 291 (Mo.App.1977); Cook v. State, 543 S.W.2d 309, 311 (Mo.App.1976). Appellant admits in his brief that “[a] brief look at the appellant’s petition shows that such facts were not plead and gave the Court no basis for a granting of relief.”

Appellant’s plea that a new rule be adopted to require appointment of counsel is misdirected. The Supreme Court of Missouri has rule-making power. Article V, Section 5, Mo.Const.

The judgment is affirmed.

All the Judges concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent-Plaintiff, v. Gale William STOWERS, Appellant-Defendant.
    No. 39720.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.

      Bradford A. Brett, Mexico, for appellant-defendant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for respondent-plaintiff.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction of Forcible Rape where the jury assessed his punishment at five years imprisonment. The prosecutrix, a nineteen year old, knew the defendant from work and had enlisted his “aid” for the purpose of procuring some false identification. Pursuant to this goal, she assented to a meeting on a gravel road in Audrain County. She testified that he threatened her with a knife and forcibly raped her.

On appeal, defendant perfects two points of error: 1) that the trial court erred in admitting evidence of an improperly conducted polygraph test submitted to by defendant; and, 2) that the trial court abused its discretion in denying defendant’s motion for mistrial after certain inflammatory remarks were made by the prosecuting attorney in her closing argument.

When defendant initially agreed to subject himself to the polygraph test, he entered into a written stipulation with the prosecuting attorney whereby he waived any and all rights to object to the introduction of said evidence. In pertinent part, the stipulation’s language was couched as follows:

[T]he above waiver of all objection includes any and all objections that could possibly be made by the defendant to the introduction of said evidence, including but not limited to relevancy, materiality, competency, accuracy, constitutionality, and any and all other objections of any nature whatsoever, it being the intention of the parties hereto that such evidence shall be admitted without objection by the defense in any such trial. (Emphasis added.)

The stipulation further provided that if the defendant passed the polygraph test, the prosecuting attorney would nolle prosequi the charge contained in the information. Both defendant and his attorney were parties to the stipulation, each having signed.

On the morning of the trial the defense counsel moved to suppress the test with his main objection being that one of the questions asked the defendant was factually inaccurate. The stipulation provided that the defense counsel had the privilege to approve all questions asked. Defense counsel contends that he was “not given a copy of the questions asked the defendant other than what the prosecuting attorney drafted.” The questions ran in this sequence:

Q. Do you know for sure who raped [the prosecutrix]?
A. No.
Q. About October 18, 1977, did you rape [the prosecutrix]?
A. No.
Q. In any way did you threaten [the prosecutrix] to keep her from reporting the rape?
A. No.
Q. In the [prosecutrix] rape, did you threaten [the prosecutrix] with a knife?
A. No.
Q. Right, now do you know the location of the knife used to threaten [the prosecutrix]?
A. No.
Q. Did you rape [the prosecutrix] on Route FF? (Emphasis added.)
A. No.

It is the last question to which defendant objects averring it to be factually inaccurate for, at trial, the testimony of the prose-cutrix was to the effect that she had been raped along a gravel road just off Route FF. Defendant declares this discrepancy is enough to cast doubt over the reliability of the entire test, and would have us declare it inadmissible on that ground.

This complaint is of little note for there is no showing from the record the questions asked were, in fact, other than those approved. In the absence of such a showing, and in the face of the stipulation specifically denying defendant the opportunity to object to the test’s accuracy, defendant has no such claim to make. It is well settled that a defendant, informed of his rights and with the advice of counsel, may bargain away such rights. State v. Fields, 434 S.W.2d 507[3-5] (Mo.1968); State v. Ghan, 558 S.W.2d 304[l-7] (Mo.App.1977); U. S. v. Oliver, 525 F.2d 731[1 — 6] (8th Cir. 1975). Defendant herein knowingly gambled away his rights in the hope he would pass the polygraph test and thereby avoid prosecution. He may not now complain of its admission. Ghan, supra.

Furthermore, even were we to ignore the stipulation’s proviso, we could not ignore the uncontroverted testimony of the poly-graphist who testified that the reference to geographic area in those questions was sufficiently proximate to the crime site not to invalidate the test results, or the answers to those particular questions. It is also significant that prior to the question concerning location, defendant had been called upon to answer the more critical question pertaining to whether, in fact, he had raped the prosecutrix. Given the sequence of the questions, it does not appear that the location question should operate to invalidate the more crucial, and earlier question. Cross-examination afforded defendant sufficient opportunity to challenge the credibility of the test. The test was properly submitted to the jury.

Defendant next alleges error in the trial court’s refusal to declare a mistrial after the prosecuting attorney’s closing argument. He claims the trial court abused its discretion by this refusal due to the nature of the prosecuting attorney’s remarks. Although defendant complains of several remarks made on various occasions, he is most emphatic regarding the propriety of one remark in particular. That remark being, “The Boston Strangler had a wife and family, too! ”

The declaration of mistrial has often been perceived as the most drastic of remedies. State v. Johnson, 504 S.W.2d 23[7] (Mo.1973); State v. Hammell, 561 S.W.2d 357[2-3] (Mo.App.1977); State v. Petrik, 550 S.W.2d 613[3] (Mo.App.1977). A mistrial is justified only when it is demonstrated that the prejudice worked upon defendant was so extreme it could be removed by no other means. Hammell, supra; Pe-trik, supra. Such a determination is best left to the sound discretion of the trial court which had the opportunity to observe the incident, and is in a better position to gauge its prejudicial effect on the jury. Kansas City v. LaRose, 524 S.W.2d 112[20] (Mo. 1975); State v. Brown, 554 S.W.2d 574[9] (Mo.App.1977).

We cannot say the trial court’s refusal to grant a mistrial constituted an abuse of discretion in the instant case. The prosecuting attorney made the remarks; defense counsel made the objection; the trial judge sustained the objections and admonished the jury to disregard the improper remarks. We are hesitant to substitute our judgment for that of the trial judge as he was able to view the entire soliloquy in context.

Lastly, we perceive the prosecutor’s statements to be retaliatory in nature. Defense counsel, in his closing argument, made the initial reference to defendant’s family when he asked the jury, “To find my client, Gale William Stowers, not guilty, so that he can go home with his family — his wife and his children.” Thus, it would appear defense counsel invited a retaliatory statement by the prosecution when first he broached the topic. Again, the trial court has considerable discretion in permitting the use of retaliatory arguments and refusing to declare a mistrial based thereon. State v. Tiedt, 229 S.W.2d 582[9-12] (Mo. banc 1950); State v. Lacy, 548 S.W.2d 251[4-5] (Mo.App.1977). No abuse of discretion having been demonstrated, defendant’s second point is also denied.

Affirmed.

CLEMENS and GUNN, JJ., concur.

      . The polygraph examiner testified that defendant had lied in answering no to the above questions.

      . As to all other remarks of which defendant complained, the trial court sustained the defendant’s objections or prosecutor withdrew her remarks. The defendant requested no other relief.


text:
    BOARD OF PUBLIC BUILDINGS, State of Missouri, Plaintiff-Appellant, v. The GMT CORPORATION et al., Defendants-Respondents. (Exceptions of De-Ge, Inc., et al.)
    No. 38496.
    Missouri Court of Appeals, Eastern District.
    Feb. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.

      Donald U. Beimdiek, St. Louis, for plaintiff-appellant.
    Millar, Schaefer & Ebling, Samuel C. Ebling, Gregory F. Hoffmann, Doskocil, Pu-los & Feld, Constantine G. Pulos, St. Louis, for defendants-respondents.
   PER CURIAM.

The condemnor, Board of Public Buildings, a body corporate and politic, created by § 8.010 RSMo.1969, and empowered to acquire by eminent domain real property necessary, useful, or convenient for the use of the Board in the exercise of its statutory authority, brings this appeal from a judgment entered upon a jury verdict in an amount of $300,000.00 as damages for the taking of property located at 702-706 Pine Street in the City of St. Louis, owned by the respondents, De-Ge, Inc., a corporation, Gregory Degerinis, Betty D. Velten and Theodora Degerinis Sampel. We affirm.

The property taken by the condemnor was improved by a four-story building in which three businesses were operated. The title owner is De-Ge, Inc., a family owned corporation. The stockholders in the corporation are Mrs. Panagiotta Degerinis and her three children, Betty Velten, Gregory Degerinis and Theodora Sampel. Theodora Sampel and her husband, John Sampel, operated the Upstream Lounge on the first floor of the building. Betty Velten and Gregory Degerinis rented a portion of the building — a part of the first floor, where a hotel lobby was located, and the second, third and fourth floors — from the corporate owner and then subleased the rented premises to a manager who operated the Oriole Hotel therein. The remaining part of the first floor of the building was leased by the corporate owner to one Robert Risha who operated Risha’s Beauty Salon in that portion of the building.

On appeal the appellant relies on three points as grounds for a new trial, and each is directed to alleged errors of the trial court in the admission of evidence on the question of market value of the property taken, or with respect to cross-examination of expert witnesses who testified for the appellant on the question of market value of the property taken. We conclude that one of these points was not properly preserved for review, and that the other points involve questions wherein the trial court is clothed with a broad discretion and in neither did the court abuse its discretion. We affirm.

Appellant’s first Point Relied On is that the trial court erred in permitting the owners of the property appropriated to introduce evidence of prices paid by the Planters Redevelopment Corporation (hereinafter “Planters”) for properties it acquired for construction of the Boatman’s Tower building in downtown St. Louis. Appellant contends this evidence was inadmissible because it involved sales of three parcels of property to a condemnor and not purchase prices paid by a willing buyer to a willing seller.

Whether the trial court erred in admitting evidence in condemnation proceedings concerning market value must be reviewed in light of the circumstances existing at the time the ruling was made. Where it becomes clear that, in light of subsequent evidence, evidence previously admitted was deprived of all evidentiary value, it becomes the duty of the party whose objection to the previously admitted evidence was overruled to call the trial court’s attention to the matter and move to strike the earlier testimony on the ground that it was, by reason of said subsequent evidence, incompetent and inadmissible. The failure of the party litigant to do so constitutes a waiver of the objection and does not preserve the point for review. State ex rel. State Highway Commission v. Ogle, 402 S.W.2d 605, 611[4, 6] (Mo.App. 1966); State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414[10,14] (Mo.App.1972); State ex rel. State Highway Commission v. Henderson, 381 S.W.2d 10, 12[5] (Mo.App.1964).

The evidence complained of under this Point was testimony concerning the sale of three parcels of land to Planters, a corporation formed by the Boatman’s National Bank of St. Louis (hereinafter “Boatman’s”) under the Missouri Urban Redevelopment Corporation Law, Ch. 355, RSMo. 1969, and clothed with the power of eminent domain, for the purpose of acquiring land upon which to construct the Boatman’s Tower building.

In the property owner’s case Garland Noonan, a real estate appraiser, testified concerning comparable sales. The appellant’s trial counsel interposed an objection to any testimony about the sale of the Apex Engraving Company property to Planters “because of the fact the Redevelopment Corporation had the power of condemnation, and therefore would not fit the court’s definition of a willing buyer and a willing seller.” The objection was overruled and Mr. Noonan was permitted to testify that the Apex property was sold to Planters in February, 1974, for $42.05 per square foot.

A similar objection was made and overruled to Mr. Noonan’s testimony concerning the purchase price paid by Planters for the two other parcels, i. e. the Gutweiler property in April, 1974, for $51.95 per square foot, and the Gark-Ruprecht-St. Louis Union Trust Company property in February, 1974, for $41.07 per square foot.

When these objections were made, there was nothing in the record, save the statement of appellant’s trial counsel, showing that Planters had the power of condemnation to cast doubt upon the admissibility of this evidence; there was, at this time, no evidence that any of these parcels were acquired after a condemnation proceeding had been instituted or that the sales were completed under the threat of condemnation.

The rule in Missouri, as we read the case law, is that the party seeking to introduce into evidence comparable sales as tending to establish the value of the property at the time of the taking has the burden of showing that the sale was voluntary; however, this burden is discharged prima facie by the aid of a presumption that the price of land sold was in fact fixed freely and not under compulsion, and the burden of coining forward with evidence showing that a particular sale was not voluntary shifts to the opposite party. State ex rel. State Highway Commission v. Dockery, 340 S.W.2d 689, 693-4 (Mo.1960).

While there is a split of authority on the question whether a sale to a purchaser with the power of eminent domain is compulsory because of the existence of that power alone, 5 Nichols, Eminent Domain § 21.33, at 21-94, rev. 3d ed., 1975, and evidence of said sale is not admissible as a comparable sale for the purpose of proving fair market value, we are of the opinion that in Missouri this is not the rule except where it is shown in the offeror’s own evidence that the sales were made subsequent to the institution of condemnation proceedings to appropriate the property, or where there is evidence from which a trial judge reasonably should have concluded that the sale involved was not voluntary, or where the party opposing the admission of the evidence comes forward with evidence that the sale was other than voluntary. While appellant’s trial counsel made an objection on the grounds that Planters had the power of condemnation, that alone furnished no evidence of this fact, nor was it any evidence that the power of eminent domain was being exercised at the time of the sale of the properties in question. Counsel did not request leave to offer any evidence to overcome the presumption and thereby demonstrate to the trial court that his objection on those grounds was well taken.

In State of Missouri ex rel. State Highway Commission v. Bruening, 326 S.W.2d 305, 314[10] (Mo.1959) it was held that the mere fact that the City of Kansas City was invested with the power of eminent domain did not, of itself, show that the sales were compulsory rather than fair transactions and did not require that the exclusionary rule be applied. The exclusionary rule becomes applicable when the evidence demonstrates that the condemning authority has a fixed purpose to institute condemnation proceedings if it cannot acquire the land by purchase at a satisfactory price, or that the condemnor threatened the seller with condemnation if a satisfactory purchase price was not agreed upon. In the absence of any evidence on this question at the time the objection was made we believe the trial court cannot be convicted of error in admitting the evidence. State ex rel. State Highway Commission v. Dockery, supra.

Furthermore, we also conclude that, as in the Dockery case, the defendant’s witness’s testimony in this respect was for the purpose of showing what comparable sales Mr. Noonan took into consideration in arriving at his opinion of the value of the defendant’s property, not as independent evidence of the fair market value of the said property. This is another reason why we do not believe its admission to be prejudicially erroneous.

In the appellant’s case it was developed during the testimony of one of its experts, Mr. Clarence M. Turley, Jr., the executive Vice-President of Turley-Martin Company, and one of the brokers who handled the acquisition of the property for the Boatman’s Tower site, that to the best of his recollection a condemnation suit had already been filed when the Gutweiler property was acquired. He further testified that the Gutweiler parcel was the last one acquired for the Boatman’s Tower site; and that prior to the acquisition of the Gutweiler parcel he valued it at $40.00 per square foot, “or less;” but that his company was instructed to complete the purchase at $51.00 per square foot because time was of the essence and Planters wanted to complete the purchase.

This was the first time, in the appellant’s case, that any evidence was developed indicating that the sales to Planters were less than voluntary. However, appellant’s trial counsel did not, at that point, call to the attention of the trial court the continuing nature of his objection nor did he move the trial court to strike this evidence. Appellant thereby waived any error, if error it was, in the admission of this evidence and preserved nothing for appellate review. State ex rel. State Highway Commission v. Ogle, supra; State ex rel. State Highway Commission v. Henderson, supra.

Appellant next contends that the trial court erred in admitting evidence of the gross business income and profits of the Oriole Hotel and in permitting the owner’s experts to capitalize those business profits as a basis for their valuation of the property. It argues that this evidence should not have been admitted because the hotel, although owned by the corporate defendant, was leased to Betty Velten and Gregory Degerinis, none of the revenue generated by the operation of the hotel was paid to the owner, and therefore this revenue could not be included in the computation of the fair market value of the condemned property-

Capitalization of rental income derived from condemned property is a method employed for the purposes of ascertaining fair market value when all of the property is taken by the condemnor. Land Clearance for Redevelopment Authority of City of St Louis v. Morrison, 457 S.W.2d 185, 192[2] (Mo. banc 1970). Not only did the respondent’s experts employ this method in evaluating the fair market value of the property, but the appellant’s experts also employed this method in arriving at their opinion of its fair market value. One of the appellant’s witnesses, Mr. Turley, testified that in his opinion this property would only be sold on the income approach.

We believe that it is clear that the general rule in Missouri is that evidence of profits derived from a business conducted on property is too speculative, uncertain and remote to be considered as a basis for computing or ascertaining the market value of the property taken in condemnation proceedings. Shelby County R—IV School District v. Herman, 392 S.W.2d 609, 613[8] (Mo. 1965); St. Louis Housing Authority v. Bainter, 297 S.W.2d 529, 534[6] (Mo.1954); 27 Am.Jur.2d Eminent Domain, § 431 (1966); 4 Nichols, Law of Eminent Domain, § 13.3[1] (rev. 3rd ed. 1975).

However, where the owner of real estate chooses to rent it, rather than to use it himself, he derives what may broadly be called profits from a business. But these profits are of a peculiar nature, and the business is a renting business rather than a manufacturing or mercantile business, and, according to one text writer, it is the peculiar nature of this income, and the special problems of valuation to which it gives rise which have led most courts, not only to subject it to special treatment in the law of evidence, but also to deny it the name “profits.” 1 Orgel, On Valuation Under Eminent Domain, p. 697.

According to this same text-writer, the latter fact is of little importance in itself, but it is the special treatment in the law of evidence given the profits of a rental business which is of significance; and, when the renting of the property constitutes its best available use, or at least a plausible use, the realized or estimated rentals are a useful guide to the appraiser in valuing real estate.

He also mentions in a footnote relative to his statement about the income from a rental business and its special significance, that the distinction between what is generally considered profit in the income from a business and “profit” from rents received by the conduct of a rental business cannot always be clearly drawn. As an example he cites a hotel business, which is essentially a business of renting rooms by a series of very short lease and says, 1. c. 697, fn. 2:

“Yet the courts might properly regard a hotel business as a ‘profit producer’ rather than as a mere ‘rent producer,’ whereas they regard an apartment house or rented office building as a rent producer.”

In the chapter immediately preceding the chapter in which this text writer made the observation aforesaid, and wherein he was treating with the admission and treatment of the realized or prospective income of a business as evidence of the value of the condemned premises on which the business has been or may be located, he discussed those cases where income derived from business profits may be an acceptable measure of market value. In this context he said, Orgel, idem, Vol. 1 § 157, p. 648:

“If the real estate that is being valued were coterminous with the entire enterprise from which the income is derived, a capitalization of this income would be not merely a relevant datum for the valuation of the property but might be the best possible measure of its value. This situation would arise in those cases where the sale of the real estate will necessarily put the buyer in possession of all those assets and attributes which go to make up the business enterprise.”

The author states that it is probable that no case can be found which precisely meets this condition, but also points out that in the case of a run-down, badly located hotel, the cost of reproducing the obsolete and depreciated building would be so literally irrelevant that an appraiser would be wasting his time attempting to estimate it. He suggests that the capitalized earning power of the enterprise using the properties, or which might use them, might be the “one significant basis of valuation,” after appropriate deductions are made from the capitalized value of the enterprise. Where the building was not better adapted for some enterprise other than the one being operated in the building at the time of the taking, the value of that enterprise would fix the upper limit of the value of the property.

We believe it is clear that where the acquisition of property by a condemnor includes a hotel, unusual considerations enter into the method of valuation to be employed in determining its fair market value. We have found no Missouri case deciding the specific question presented in the factual context of this case, and the litigants have cited none to aid us.

In disposing of this point, the initial question to be determined is whether the revenue developed in the operation of the Oriole Hotel must be characterized as rental income or business profit.

Defendant’s evidence was that the record owner of the condemned property at the time of the taking was Be-Ge, Inc. Betty Velten was the president of the corporation, Gregory Degerinis was vice-president, and Theodora Sampel, secretary-treasurer. The corporation had been incorporated sometime in 1966, approximately two years after the death of the father and head of the family, and title to the subject property was deeded to it sometime in 1967.

At the time of Mr. Degerinis’ death this property was left to Panagiotta Degerinis, his widow, and their children, Betty Velten, Gregory Degerinis and Theodora Sampel. During Mr. Degerinis’ lifetime he operated the Oriole Hotel in the building on the land taken by condemnation. After his death, Mrs. Velten and Gregory Degerinis took over the operation of the hotel and continued operating it as a “family business” until after the corporation was formed in 1966. The shareholders of the corporation were the owners of the building, i. e. the surviving members of the Degerinis family, and it was they who deeded their interest in the property to the corporation. However, the operation of the hotel continued as it had prior to the transfer of the land and the improvements thereon to the corporation. Sometime in 1970 the members of the family operating the Oriole Hotel entered into an oral agreement with Richard Hughes to “operate” the hotel for himself. According to the agreement Mr. Hughes paid Mrs. Velten and Gregory Degerinis $4.75 per day as rent for each room occupied by transient guests and anywhere from $40.00 to $60.00 per month (the differential was determined by the furnishings of the room and whether it had its own bath) for each permanent guest of the hotel. Generally, there were about 20 permanent guests in the hotel. This arrangement continued until the time the property was appropriated by the appellant in 1974.

Mr. Hughes paid the sums which were the subject of this agreement into an account at the First National Bank in the name of the Oriole Hotel, and both Mrs. Velten and Gregory Degerinis could write checks on the account. Expenses in connection with the operation of the hotel were paid out of this account. None of the money left in this account was ever paid to the corporation. Whatever was left, was paid over to Theodora Sampel and eventually distributed proportionately to the four members of the family, who were the only shareholders of the corporation which held title to the building in which the Oriole Hotel was being operated.

The corporation was never paid rent for the use of the premises by the hotel by either Mrs. Velten or Gregory Degerinis during the entire period they operated the hotel between 1967 and 1970, when Mr. Hughes took over its management and operation.

The evidence to which this grounds for reversal is directed came in during Mrs. Velten’s testimony, when the landowners’ trial counsel asked how much income had “come” from the Oriole Hotel from Mr. Hughes at the end of 1974 before the property was taken. Trial counsel for the appellant voiced his objection in the following manner:

“I object to that, Your Honor, unless it is established that this is income from rent to the owners of the property.”

The thrust of this objection, as it developed, was that unless it was shown that the owner of the property, the corporation, was the recipient of the income for the use of that part of the building in which the hotel was operated, any monies received by the people who were renting the hotel from the owner was business income earned from the operation of the hotel and the appellant was taking only the real estate and not the business operated on the property.

In support of its contention that the owner of the property never received any rentals from the hotel operation, appellant’s trial counsel, at the bench and out of the hearing of the jury, argued that answers to interrogatories directed to the corporate defendant included income tax returns of the corporation which did not include any income from the hotel operation.

The objection was overruled and Mrs. Velten was permitted to testify that she and her brother received a gross amount of $33,931.00 from Mr. Hughes for the rental of hotel rooms in 1974. Out of this amount she paid insurance, accounting, advertising, maintenance and repairs, office supplies, laundry, hotel supplies, inspection and license fees, sewer and water, electricity, telephone and salaries. What remained went to Mrs. Sampel and was then divided proportionately among the four family members and shareholders in the corporation. During cross-examination Mrs. Vel-ten testified that the 1973 corporate income tax return reported that the gross rents received by the corporation were $28,083.00, but no money received from the hotel rentals was included in this figure. Also, during cross-examination she testified that she and her brother never paid any money to the corporation as rent for the hotel.

With this evidence in the case, the landowners’ expert witnesses, Mr. Noonan, P. C. Robinson and Frank Miller, were permitted, over objection, to take into account the monies deposited into the hotel bank account by Mr. Hughes in 1974, in arriving at their estimates of fair market value of the property by means of the income method. The objection to the testimony of Messrs. Noonan and Robinson was that these monies were not income to the property owner, but were income from the operation of the business. Later, during cross-examination of Mr. Noonan, a motion to strike his testimony about valuation by the income approach, because it included rents for furnished rooms, was made and denied. The objection to the testimony of Mr. Miller was that the hotel rent, according to this witness' testimony, was the net operating income and not rental income from the space occupied by the hotel. Mr. Miller explained that when he used the word “operating income” he was not referring to the operator of the hotel, who was working on an override, but he was referring to income realized by ownership.

We conclude that the $33,900.00 received by Mrs. Velten and Gregory Degerinis from Mr. Hughes was rental income and not business profit in the sense appellant argues. The reason behind the rule excluding profits from a business conducted upon the property by the property owner himself is that said profits depend so much on the capital employed and the fortune, skill and good management with which the business is run, and therefore, it furnishes no test of the value of the property. The crucial question then is whether this income was produced by the use of the property or by the skill and labors of the landowners.

It is clear, we believe, that the income capitalized by the owner’s expert witnesses in this case as rental income was, insofar as the landowners are concerned, income earned from the use of the hotel property by Mr. Hughes; there is no evidence that they employed any skill or labor in the operation of the hotel after Mr. Hughes took over the operation of the hotel business.

While the evidence on this question is somewhat confusing, we believe an overview of the evidence resolves some of the conflicts in the defendants’ evidence and supports our conclusion that the monies paid into the Oriole Hotel bank account by Mr. Hughes were rental income.

Although Mrs. Velten testified that she and her brother leased the hotel from the corporation, no lease was introduced into evidence and there is no evidence that any rents were paid to the corporation by them pursuant to the lease. However, six years prior to trial, the hotel was subleased to Richard Hughes, whom Mrs. Velten characterized as a “manager” or “operator.” Mr. Hughes was operating the hotel at the time of the taking and depositing the rents into the hotel bank account. There is no evidence in the record that after Mr. Hughes took over the operation of the hotel either Mrs. Velten or Gregory Degerinis participated in the operation or management of the hotel business.

The corporation was incorporated for the purpose of taking title to the subject property and the family members deeded their interest in the property to the corporation. According to the 1973 corporate tax return depreciation schedules the property at 702-704 — 706 Pine Street reported the cost of acquisition as $26,514.00. Mrs. Velten testi-fled that insofar as she knew no money actually changed hands in the transaction, and this evidence stands uncontradicted. At the time of the taking two other businesses were being operated in the building on the property. One, the Upstream Lounge, was operated by John and Theodora Sampel. Mrs. Sampel was Secretary-Treasurer of the corporation. The Sampels paid the corporation a monthly rental of $500.00. The other, Risha’s Beauty Salon, operated by Robert Risha, paid $700.00 per month rental to the corporation. All of the value experts agreed that that part of the building occupied by the hotel was being employed in its highest and best use.

The corporation’s business was not confined to the ownership of subject property; it also held title to seven other “family owned” properties, some being flats and the others apartments, and received rental income from these. One thing that is clear, the family treated these properties, including the subject property, as “family owned property” and shared equally in income derived therefrom. The business of the corporation was a “renting business” and its profits were of a peculiar nature so that most courts would deny them the name of “profits” and subject them to special treatment in the law of evidence. Orgel, Vol. 1 idem, p. 697 (2nd ed. 1953). The “special treatment,” as we view it, is the admissibility of the rental income for valuation purposes in condemnation cases. 4 Nichols on Eminent Domain, § 12.3122 (rev. 3rd ed. 1975); State ex rel. State Highway Commission v. Ellis, 382 S.W.2d 225, 234[15] (Mo.App.1964).

There are also other circumstances which make this evidence admissible for purposes of valuation in this case. We have here a hotel classified by the landowners’ experts as “low class,” one of eight in existence in the St. Louis area at the time of the taking. According to Mr. Noonan’s testimony, the income method of computing fair market value was the most appropriate method inasmuch as the likelihood of reconstruction is nil, because of the age of the building — approximately 75 years at the time of the taking. A sudden increase in rental income between 1974 and 1975 was attributed to the fact that a number of hotels which had competed with the Oriole Hotel for business had been razed prior to 1974 in connection with downtown redevelopment projects and as a result the demand for rooms in the Oriole Hotel had increased markedly. Nevertheless, the cost of reproducing the building as an approach to valuation was, at best, questionable, and therefore, Mr. Noonan opined, the capitalized earning power of the building was the most significant basis for its valuation, and the best method for determining what a willing buyer would most heavily rely on in considering what he would pay to purchase the property.

Furthermore, the income paid by Mr. Hughes from the operation of the hotel was only one of three incomes realized from the rentals derived from the building in using this method of valuation. The rents from the beauty shop were also used; and, because the lounge was rented by the Sampels and any rent paid for the lounge might therefore be suspect, the same rental per square foot being paid for the beauty shop was applied also to the area occupied by the lounge in arriving at the fair rental value to be used in the income approach for valuation of the building. These three rental incomes totalled $48,793.00, from which expenses of $13,577.00 were subtracted, leaving a net income of $35,396.00 realized from rents. Mr. Noonan, nevertheless, used a net income of $31,396.00 in computing the net income “in case I missed anything.” He then assessed 75% of this to the land and 25% to the building. He valued the land at $254,562.00 and the building at $49,056.00, and testified that the fair market value of the property at the time of the taking was $303,618.00 by the income method. By the reproduction less depreciation method, Mr. Noonan valued the property at $303,940.00.

Mr. Robinson, another expert, using the income method valued the property at $278,800.00; from the cost approach, he valued it at $289,900.00. He felt the fair market value at the time of the taking was $278,800.00 because this type of property would be purchased by the type of investor who was looking for income and therefore the income approach better reflected the fair market value of the property at the time of the taking.

Mr. Miller, a third expert on valuation, also testified to the fair market value of the property as of the date of the taking. In arriving at his opinion he employed three methods: the market approach, replacement or cost approach, and the income approach. He opined that because there were fewer buildings of “the low-class style hotel” in existence, comparable sales would be hard to find and that the first approach would be to establish land value through market sales, and then extract whatever portion of income that represented “in the net operating stream towards a building improvement” in order to capitalize, and his cost approach would substantiate his value by the income approach. He testified that the fair market value by the income approach was $258,500.00; by the cost approach, $268,700.00.

Appellant’s reliance on State ex rel. State Highway Commission v. Flynn, 263 S.W.2d 854 (Mo.App.1954) is, we conclude, not well founded. In Flynn it was held that in a proceeding to condemn for public use land and a tenement building thereon, evidence of the capitalization or rental income from furnished apartments was properly excluded because it would reflect the market value of the real estate plus personal property where the personal property was not taken. Appellant relies on Flynn to argue that the capitalization of income from the hotel would reflect the market value of the real estate plus the hotel furnishings when the furnishings were not taken, and therefore it was prejudicial error to admit this evidence.

We believe the cases can be distinguished. The condemned property in Flynn was a brick tenement building consisting of a series of attached buildings joined by common walls and rented as fourteen separate apartments. The evidence was, however, that the building was adaptable for use as seven separate residences or units, and, if so adapted and used, the market value of the property would be increased.

Although not the basis for the court’s decision, it is clear in Flynn, that the use of the property there was not its highest and best use; and, had it been adapted and used in its highest and best use as seven separate units the furnishings would have added nothing to the fair market value of the property and any rents attributable to said furnishings were inadmissable.

There is no question whether that portion of the condemned property which was being used as a hotel in this case was being used in its highest and best use. The evidence is that it was.

By the very nature of the hotel business it is essential that the rooms used in the operation of a hotel contain furnishings suitable to the conduct of the business.

From a comparison of the experts’ testimony in this case it appears that in computing the fair market value of hotel property taken by condemnation by the income method, one of the decisions which the expert witness must make is whether to estimate the value of the hotel furnishings and allocate the value thereof against rents paid the owner for the operation of the hotel. The expert must rely on his professional judgment in making this decision. The testimony of the witnesses for both parties in this case supports this conclusion. Plaintiff-appellant’s expert Hartnett testified that evaluation of hotel property “typically” includes the furnishings, although in some cases the hotel may be sold without the furniture. He stated that “(g)enerally, the furniture is included with this type of hotel” and when asked if his calculations were based on income derived from the hotel operation, and whether a hotel operation includes furnished rooms, he answered both questions affirmatively. Plaintiff’s expert witness Turley testified that his appraisal did not take into consideration the furniture in the rooms, and when asked whether hotels customarily are sold with or without furnishings, replied, “I really don’t know.” Defendant’s expert witnesses testified that their income figures were based on rental income from furnished rooms. Defendant’s experts relied on the figure for gross income from hotel rents provided by defendant’s accountant, and projected that figure over a twelve-month period. Their totals were $33,396.00, $33,931.00 and $33,-900.00, respectively. Plaintiff’s witness Turley arrived at a gross income figure for the hotel rents of $7320.00 which was an estimated fair rental value of $122.00 per year for each of 60 rooms. Plaintiff’s expert Hartnett also estimated the fair rental value of the hotel rooms, but he used a more complex method than Turley’s; he used the actual rent paid by the permanent residents, and an estimated average daily rate for transients, and after a 30% vacancy allowance, he found the total gross income from room rentals to be $53,585.00.

Inasmuch as many elements properly enter into a determination of the market value of real estate, this inquiry may properly be allowed to take a wide scope and the landowner is entitled to have the jury informed as to all facts relating to the condemned property which would naturally impress a person of ordinary prudence in negotiating for its purchase. The admissibility of evidence in a condemnation case depends upon whether it tends to help the jury in arriving at the issue of value and damages. Missouri State Park Board v. McDaniel, 473 S.W.2d 774, 779 (Mo.App.1971).

The wide range of values established by the experts from both sides suggests that a single proper method of valuation of this property cannot be prescribed. Rather, it is a matter which lies within the area of the witness’ expertise as to both the initial question of whether the furnishings are to be included in the valuation, and the subsequent determination of the appropriate method of measuring the income generated by the room rentals. Where four of five experts testifying as they did here, conclude that rental income from furnished rooms fairly reflects one aspect of this property’s fair market value, this court is not compelled to declare that evidence irrelevant by reason of the statement in Flynn, supra, that these furnishings were not “taken.”

In view of the peculiar circumstances present in this case we conclude that in the absence of any showing that the value of the furniture in the hotel added significantly to the rentals paid by Mr. Hughes, the holding in Flynn has no application to this case.

As we have previously observed, the Oriole Hotel was a “low class” hotel in a seventy-five year old building and furnished unlike any modern hotel or motel. Photographs of three of the rooms introduced into evidence by the appellant show that the rooms were scantily furnished with a metal frame bed, mattress and pillow. One had a metal chair in the room. On the other hand, three color photographs introduced into evidence by the respondents and identified as three rooms in the hotel, show well-furnished rooms with a bed in each, a chair in two of the rooms, a table in each, and a chest of drawers in one. There was no evidence adduced by either of the parties concerning the value of the furnishings in the rooms. The absence of any evidence of the reasonable value of these furnishings on the part of the respondents may be attributable to the fact that it has been their contention, initially set out in their Answer, that the furniture was “trade fixtures” being taken by the condemnor.

Unlike a manufacturing or mercantile business, there was no likelihood that this hotel could find a location suitable to its continued operation, and even if it could, the cost of removal of the furniture in the rooms displayed in the appellant’s photographs would most likely exceed the fair market value of these furnishings. No expert who testified in the case affixed any value to the furnishings, and most agreed that the room charges received by Mr. Hughes were not out of line for similar hotels in the area.

We conclude that in evaluating the rental income received by the respondents from Mr. Hughes to arrive at the fair market value of the property taken, the fact that the income came from the rental of furnished hotel rooms did not make the evidence inadmissible under the facts of this case where the property was employed in its highest and best use.

The admission of this evidence of fair market value arrived at by the use of the capitalization of rental income was not error in view of the totality of the evidence in this record.

Appellant’s final Point is directed to alleged errors in respect to cross-examination of its expert witnesses about (1) their fees and commissions in connection with properties unrelated to this case, and (2) about non-comparable properties and the “average” value range of general areas of unidentified properties without establishing that such properties were comparable to the property appropriated in this case.

We find no prejudice in the cross-examination of the appellant’s expert witnesses in either respect. The courts of Missouri have long followed the rule that the scope and extent of cross-examination of a witness in a civil case is discretionary with the trial court, and wide latitude is to be allowed. Any pertinent inquiry having some reasonable bearing on the issues in the case, or tending to impeach or discredit the witness is generally proper on cross-examination. Harris v. Quality Dairy Company, 423 S.W.2d 8, 12[6], (Mo.App.1967).

Appellant’s complaint is that respondent’s counsel interrogated its two expert witnesses about appraisal fees they received for their appraisal of the seven parcels involved in the entire block taken for the Wainwright Project and that Mr. Turley was required to state the exact percentage of the commissions received by his firm for the sale of eight comparable properties.

We believe inquiries concerning the fees the appraisers received in the acquisition of the Wainwright Project, one parcel of which was subject property, was proper cross-examination for the purpose of showing any interest these witnesses might have in the case on trial.

With respect to commissions received by Mr. Turley’s firm for the sale of comparable properties, we have studied the pages of the transcript to ascertain the content of the cross-examination of which the appellant complains.

This matter came about during the course of cross-examination of Mr. Turley concerning sales he took into account in arriving at his opinion of the fair market value of the subject property, and particularly with respect to those sales with which he had personally been involved and which were comparable to this property. As stated by respondent’s counsel in response to an objection by appellant’s counsel, the purpose of this line of inquiry was to test Mr. Turley’s qualifications as an expert appraiser, i. e. the sales he had handled.

However, Mr. Turley then proceeded to testify concerning commissions he had received from the sale of certain properties in the downtown area over an objection that these commissions were not material to the value of the property sold or of the property in question. According to respondent’s counsel, this evidence was being offered as going to the credibility of the witness, not to prove value.

To properly apprise one of the legitimacy of this line of inquiry it is necessary to read further in the transcript, for it is then apparent that respondent’s counsel was laying a foundation to demonstrate that Mr. Tur-ley’s opinion of value of the subject property may have been influenced by other sales handled by Mr. Turley but not included in his appraisal report to appellant.

We agree, nevertheless, that the commission received on the sales of these properties is immaterial even for the purpose aforesaid except where a commission was based upon a percentage of the sales price and might thereby afford a basis from which to compute the sales price if otherwise unavailable. We do not understand that to be the case.

However, even if this be error, appellant has not demonstrated how it was prejudiced by this evidence, and we do not find that it was.

Appellant’s final contention is that cross-examination of its experts concerning non-comparable properties and about the “average” value range of general areas of unidentified properties without establishing their comparability is likewise without merit. The only portion of the transcript referred to in the argument directs us to the testimony of Mr. Turley, and therefore we limit our discussion to what took place there.

Mr. Turley, over objection, was required to respond to inquiries concerning (1) the average price and price range for sales of property acquired for the construction of the Mercantile Center and (2) unidentified properties acquired for the Mercantile Center. He did so, however, under cross-examination directed to ascertain whether this information was contained between pages 6 and 9 of his appraisal report to appellant as information he considered in reaching his conclusion as to the fair market value of the subject property. At trial the appellant’s objection was essentially that respondent’s inquiry should be limited to specific parcels of property which were comparable. In his efforts to ascertain whether this expert witness considered other properties which were not comparable in arriving at his valuation, the respondent was entitled to a wide latitude of cross-examination, and we conclude from a reading of the transcript this is what was being pursued by this line of inquiry, and for that reason we find no error in permitting this cross-examination.

Affirmed.

All Judges concur.

      . These three parcels are: 1) Apex Engraving Company property at 110-112 N. Broadway; 2) Olive M. Gutweiler property at 114-118 N. Broadway; and, 3) Gark-Ruprecht-St. Louis Union Trust Co. property at 414 Pine St.

      . The confusion arises primarily from conflicts between the testimony of Mrs. Velten and answers to interrogatories filed by the corporate defendant relative to rents received by the corporation in 1973.

      . The defendant-respondents’ experts computed their opinion of fair market value on the income approach by employing the 1974 rental figure of approximately $33,000.00 as the rents paid to the defendants by Mr. Hughes in 1974 and capitalized this amount.

      . Because of the result we reach we do not find it necessary to reach this issue.


author: CLEMENS, Judge.

text:
    Ransom BROWN, Appellant, v. Ray MEYER et al., Respondents.
    No. 39814.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.

      David S. Fischer, St. Louis, for appellant.
    Robert M. Paskal, Clayton, for respondents.
   CLEMENS, Judge.

Plaintiff has appealed the trial court’s order setting aside his $100,000 verdict and entering judgment for defendants. Plaintiff sued defendants for conversion of his allegedly exclusive newspaper distribution area. Defendants moved for directed verdict at the end of plaintiff’s case and again at the close of the evidence, and thereafter filed an after-trial motion to enter judgment for them notwithstanding the verdict, contending plaintiff failed to produce sufficient evidence to warrant a verdict. The trial court sustained the motion and entered judgment for defendants. The issue before us is whether plaintiff made a submissible case. We say no.

A case should be submitted to a jury only if “each and every fact essential to liability is predicated upon legal and substantial evidence.” Probst v. Seyer, 353 S.W.2d 798[2] (Mo.1962). “Substantial evidence” is that which has probative force upon the issues and from which the jury can reasonably decide the case on the fact issues. Zeigenbein v. Thornberry, 401 S.W.2d 389[4] (Mo.1966). In determining submissibility we consider all the evidence and reasonable inferences therefrom in the light most favorable to the plaintiff. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848[2] (Mo. banc 1975). Defendant’s evidence contradictory or unfavorable to plaintiff’s contentions must be disregarded. Bateman v. Rosenberg, 524 S.W.2d 753[1] (Mo.App.1975).

Here, plaintiff had the burden of proving three elements by substantial evidence: (1) He had a right to immediate possession of a newspaper branch which included Laclede Town and Blumeyer area; (2) defendants wrongfully took plaintiff’s newspaper branch in defiance of his ownership or right of possession; and (3) plaintiff was damaged as a direct result of the alleged conversion. See Jordan v. Ebert, 387 S.W.2d 255[1] (Mo.App.1965).

A plaintiff charging conversion must show either ownership or the right to immediate possession at the time of the alleged conversion. Brede Decorating, Inc. v. Jefferson Bank & Trust Co., 345 S.W.2d 156[8, 9] (Mo.1961); Jackson v. Rothschild, 99 S.W.2d 859[2 — 7] (Mo.App.1936). We conclude, as explained hereafter, that plaintiff’s evidence failed to meet the primary element of the right to possession.

From 1966 to 1974 plaintiff and the two defendants were adjoining newspaper branchmen. Defendant Meyer admits he sold newspapers in the Blumeyer area and defendant Balk admits he did so in the Laclede Town area. The real dispute concerns the boundaries of each parties’ branch. Defendant Meyer claims that most of Blumeyer was within his branch and defendant Balk claims Laclede Town was within his, while plaintiff maintains both areas were within his branch.

On the first element of conversion, right to possession, plaintiff contends he met his burden by introducing three items of evidence. First, plaintiff relies on his own testimony that he bought a newspaper branch from the estate of James Jackson, which included within its boundaries the Blumeyer housing project and Laclede Town. Plaintiff testified his knowledge of the boundaries stemmed from managing the branch for the former owner, James Jackson. Plaintiff relies on the testimony of Fred J. Petty, Jackson’s executor, who testified he sold Jackson’s newspaper branch to plaintiff. Finally, plaintiff points to his Exhibit I, a bill of sale for a newspaper branch from Petty to plaintiff which included within its boundaries both the Blu-meyer area and Laclede Town.

We cannot say, as a matter of law, that these three items of evidence constitute “substantial” proof of plaintiff’s ownership. The rule is that “[a] submissible case is dependent upon proof of facts. Mere conclusions do not satisfy that standard . . . .” Madison v. Dodson, 412 S.W.2d 552[6] (Mo.App.1967). Plaintiff’s testimony that the Blumeyer and Laclede Town areas were within his branch is merely a self-serving “conclusion” and is not substantial evidence. Plaintiff also misplaces reliance on the testimony of Fred J. Petty, whose testimony establishes that plaintiff only bought a newspaper branch; he did not testify as to the boundaries. Plaintiff’s Exhibit I fails to meet the substantial evidence standard because, as defendants point out, Petty acknowledged that when he wrote the boundaries on the bill of sale he had no personal knowledge of what they were and had relied solely on plaintiff’s assertions. We hold Exhibit I therefore to be the same as plaintiff’s own assertions — as self-serving conclusions, not facts. Compare Madison, supra.

In reviewing the evidence concerning the boundaries of the area in question we point to two other exhibits introduced by plaintiff. Plaintiff introduced as Exhibit 3 a bill of sale for a newspaper branch from Robert Murphy to James P. Jackson, plaintiff’s predecessor, without showing the nature of Murphy’s ownership, which included within its boundaries the Blumeyer area. However, plaintiff also introduced Exhibit 4, a bill of sale from Norman Mathis to defendant Ray Meyers, which included within its boundaries part of the Blumeyer area. The contradictory nature of these exhibits, both introduced by plaintiff, without any other evidence to support plaintiff’s contention that the Blumeyer area was within his territory, is not substantial evidence. See Corder v. Pruitt, 361 S.W.2d 659 (Mo.1962), and Madison, supra, at [5].

Plaintiff’s case was not strengthened by the testimony of his witness James Holmes, the Globe-Democrat’s circulation manager. We relate that testimony as it concerns plaintiff’s contention of ownership of distribution rights in the two areas. On direct examination Mr. Holmes, without describing the extent of plaintiff’s claimed territory, testified that “exclusive” territories with specific boundaries have existed for over a hundred years; that when an area changes hands the new owner must be approved by the newspaper; that the areas of the Post-Dispatch follow those of the Globe-Democrat. On cross examination Mr. Holmes testified the newspaper could cancel a dealer’s area in case of poor service, inadequate sales or non-payment of his account and that plaintiff’s area was cancelled for non-payment. Mr. Holmes, speaking of the areas claimed by plaintiff by virtue of having purchased them from his predecessor, said that plaintiff’s claimed territory included neither the Blumeyer nor the Laclede Town territory; that the former had been acquired from a previous dealer by defendant Ray Meyers, and the latter had been acquired from a previous dealer by defendant Mr. Balk; that plaintiff’s predecessor, James Jackson, was an aggressive dealer, a “poacher” who went outside his own area to sell papers; that neither Mr. Jackson nor plaintiff had ever had the exclusive right to sell the Globe-Democrat in either the Blu-meyer or Laclede Town areas.

Plaintiff’s case must be based on more than speculation, guesswork or conjecture. Probst, supra, [1-3]. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210[1] (Mo.App.1976). It was not.

Since we hold plaintiff failed to present substantial evidence of his ownership or right to possession, which was the primary element of conversion, we hold he failed to make a case, and we uphold the trial court’s action in entering judgment for defendants. We find no need to review the evidence on the other challenged elements of conversion.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.

      . According to the evidence here a branch man is a person who has the exclusive right to distribute newspapers within a bounded area.