text:
    John L. FERRARI, Plaintiff-Respondent, v. Suzanne A. FERRARI, Respondent-Appellant.
    No. 40912.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.

      B. C. Drumm, Jr., St. Louis, for respondent-appellant.
    Jerome T. Bollato, Bartley, Goffstein, Bollato & Lange, Clayton, for plaintiff-respondent.
   CRIST, Judge.

This action for dissolution of a marriage raises the issue whether Missouri courts have jurisdiction over a non-resident spouse.

The husband and wife were married in New York and last cohabited in Illinois. The couple separated while in Illinois. The wife and the two minor children of the marriage moved to New York and established residency. The husband moved to Missouri and established residency. The wife has never been a Missouri resident nor has the couple owned property in Missouri.

Under the auspice of Rule 54, the husband’s Missouri dissolution proceeding was instituted by the ostensible personal service upon the wife in New York on the same day the wife’s New York dissolution proceeding was instituted by service upon husband in Missouri. The wife attacked the jurisdiction of the Missouri court by motion based upon her non-residency. Her motion was overruled. She then filed an answer which again attacked jurisdiction but admitted the marriage. The wife then requested a stay of proceedings based upon the claimed lack of jurisdiction and pendency of New York proceedings, but the trial court overruled the motion.

After a hearing at which the wife maintained her defense of lack of jurisdiction, the Missouri trial court not only dissolved the marriage but made further orders pertaining to the support, custody, and visitation of the parties’ minor children; ordered that no marital or separate property remained to be apportioned; that neither party was entitled to maintenance; and that the husband was to pay the costs of the proceedings.

The authority of the Missouri trial court to dissolve the marriage has not been questioned upon appeal. The wife only challenges the Missouri court’s jurisdiction to render a decree pertaining to maintenance, custody, child support, and division of property based upon the lack of in per-sonam jurisdiction. The husband counters that the wife’s answer admitted the marriage was irretrievably broken and that she thereby submitted herself to the personal jurisdiction of the Missouri court. Not so. The wife attacked the jurisdiction of the Missouri court at all reasonable opportunities. Her admission concerned only the res which was before the court, the marital relationship itself.

An action for dissolution of marriage involves an amalgam of contractual right and status. Insofar as the proceeding affects certain contractual aspects of the marriage (such as maintenance) the action is in personam and requires personal service or presence of the other spouse for valid judgment. Insofar as such a proceeding affects status only, the action is in rem or quasi-in-rem and requires only that the res be before the court upon proper notice. The tribunal must have jurisdiction over the person of the defendant to adjudicate a personal liability against him and must have jurisdiction over the thing, be it status or specific property, to affect the interest of defendant in that thing. In re Marriage of Breen, 560 S.W.2d 358, 361 (Mo.App.1977).

The facts in the instant case do not present any of the factors enumerated in Rule 54.06(a) or (b) which would afford personal jurisdiction over the wife; and, therefore, the Missouri court had not obtained personal jurisdiction over the nonresident wife by purported service under Rule 54.06. The trial court lacked jurisdiction to enter orders pertaining to maintenance, child support, and custody. Gaffney v. Gaffney, 528 S.W.2d 738 (Mo. banc 1975). The trial court also lacked jurisdiction to enter orders pertaining to division of property. Chenoweth v. Chenoweth, 575 S.W.2d 871 (Mo.App.1978). However, the court did have jurisdiction over the status of the marriage. In re Marriage of Breen, supra; Washington v. Washington, 486 S.W.2d 668, 669-70 (Mo.App.1972).

That portion of the decree dissolving the marriage and taxing the costs against the husband is affirmed. In all other respects the decree is reversed.

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


source: Caselaw Access Project

author: STEPHAN, Presiding Judge.

license: Public Domain

text:
    Guadalupe HERNANDEZ, and Wilma Hernandez, his wife, Plaintiffs-Respondents, v. WESTOAK REALTY & INVESTMENT, INC., a corporation, and Custom Builders Corporation, a corporation, Defendants-Appellants.
    No. 39692.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 31, 1979.

      James J. Sauter, Deeba, DeStefano, Sau-ter & Herd, St. Louis, for defendants-appellants.
    Clinton B. Roberts, Roberts & Roberts, Geoffrey Pratte, Farmington, for plaintiffs-respondents.
   STEPHAN, Presiding Judge.

Westoak Realty and Investment, Inc., and Custom Builders Corporation appeal from the denial by the trial court of their motions to set aside default judgments against them. An earlier appeal from a similar ruling of the trial court, entered without a hearing, resulted in a reversal and the case was remanded for a hearing on the motions. Hernandez v. Westoak Realty and Investment, Inc., 549 S.W.2d 906 (Mo. App.1977). The judgment from which the instant appeal was taken followed a hearing at which the defendants offered evidence through the testimony of their attorney. Plaintiffs’ attorney and the circuit clerk also testified.

The case was initiated by the filing on January 23, 1975, of a two-count petition in the Circuit Court of Ste. Genevieve County. In count I, plaintiffs Guadalupe and Wilma Hernandez sought to enjoin James J. Sau-ter and Westoak from proceeding with a foreclosure sale of a shell house built for them by Custom Builders on which Westoak held a deed of trust. Sauter was the trustee. In count II, plaintiffs sought monetary damages against Custom Builders for defective construction of the house. All three defendants filed motions to dismiss which were denied on April 1, 1975. Mr. Sauter, attorney for the defendants, denied receiving notice of the trial court’s action with respect to the motions. On May 28, 1975, plaintiffs substantially amended their petition apparently in part to take into account the fact that, in the interim, the foreclosure sale had taken place. As amended, the petition was in four counts: count I sought to set the foreclosure sale aside; II sought $5,000 in damages from Sauter and Westoak because of the alleged unconscionable inadequacy of the sale price; III reasserted the allegations of count II of the original petition seeking damages against Custom Builders for defective construction work; IV sought $30,000 in damages from Custom Builders for breach of implied warranty of fitness, as an alternative to count III. As pointed out by this court in the first opinion, supra, except for count III, the “amended petition stated a different cause of action from that set forth in the original petition.” Id., 907. Sauter filed a motion to dismiss as to him; neither Westoak nor Custom Builders ever filed a pleading responsive to the amended petition.

On June 10, 1975, the cause was set for trial on September 23, 1975, as a jury-waived case. When the case was called for trial, no. one appeared for the defendants. Plaintiffs dismissed as to Sauter and dismissed counts II and III. After evidence was adduced, the trial court found for plaintiffs against Westoak and ordered the foreclosure sale set aside. Judgment was also entered against Custom Builders on count IV in the amount of $29,588.46. On September 26, 1975, separate motions to set aside the judgments were filed by Sauter on behalf of Westoak and Custom Builders. As stated at the outset, the motions were denied without any evidentiary hearing and the cause was later remanded by this court for such hearing.

Before discussing the evidence subsequently received by the trial court, we “consider the legal rubric concerning the setting aside of default judgments,” as articulated by Judge Gunn in the prior opinion. The following appears at 549 S.W.2d 909:

“A party seeking to have a default judgment set aside must allege and prove that he exercised reasonable diligence or has good excuse for being in default; that he has a meritorious defense to the principal action; and that the opposing party will not be substantially harmed by the delay of a new trial. Gorzel v. Orlamander, 352 S.W.2d 675 (Mo. 1961); Human Development Corp., etc. v. Wefel, 527 S.W.2d 652 (Mo.App.1975); Distefano v. Kansas City Southern Ry. Co., 501 S.W.2d 551 (Mo. App.1973); Rose v. Rose, 401 S.W.2d 946 (Mo.App.1966).”

We consider whether there exist here the three elements set forth in the foregoing. At the hearing, Sauter admitted that he was notified of the September 23, 1975, setting in June of that year. On September 16, or 17, 1975, Circuit Clerk Vincent Sexauer telephoned Sauter to remind him of the setting. Mr. Sexauer reiterated the same information by certified mail. During the course of the telephone conversation, Sauter told the clerk that he intended to withdraw from representation of Westoak and Custom Builders and that he intended to contact plaintiffs’ attorney to seek his consent to a continuance^ By letter dated September 17, 1975, Sauter requested plaintiffs’ attorney’s consent to such a continuance. On the same day, Sau-ter mailed to the clerk a memorandum purporting to withdraw as attorney for West-oak and Custom Builders and reasserting his intention to seek a continuance by consent. The trial court did not grant leave to withdraw; plaintiffs’ attorney did not consent to the continuance (and, in fact, left a telephone message at Mr. Sauter’s office to the effect that he would not consent); and no written motion seeking a continuance was filed as required by Rule 65.03. However, we do not consider these factors in measuring counsel’s diligence in failing to appear for the September 23, 1975, setting for the reason that on September 19 or 20, 1975, Mr. Sauter received in the mail a copy of the trial court’s docket sheet for October 7, 1975, showing that the case was set for that day. The sheet also showed that West-oak and Custom Builders were not represented by counsel, although Sauter was shown to' be representing himself. Thinking that the case had been continued and that he had been relieved of representation of the other defendants, Sauter took no further action until he received a telephone call from the clerk on the afternoon of September 23 advising him that the default judgment had been entered. Called as witness by the plaintiffs, Circuit Clerk Sexauer corroborated Sauter’s testimony, added that the docket sheet had been prepared “prematurely,” but that he put the case on the October 7 docket so that it could be reset at that time. While Mr. Sauter’s conduct is no model of assiduity, we believe that, as of the time he received the docket sheet, he had “good excuse” for failing to appear in court on September 23, 1975.

We now turn to the issue of whether Westoak and Custom Builders showed that they were possessed of a “meritorious defense.” As pointed out, neither of the defendants filed a pleading responsive to the petition as amended. Responsive pleadings were not even tendered at the hearing mandated by the first opinion. Consequently, we can look only to the separate motion to set aside filed by each and the record made thereon to determine what the claimed defenses may be. See John O’Brien Boiler Works Co. v. Home Brewing & Ice Co., 189 Mo.App. 91, 175 S.W. 225, 226 (1915); Lester v. Dyer, 518 S.W.2d 213, 217[5] (Mo.App. 1974).

Westoak contends that its “meritorious defense” lies in deficiencies in the amended petition. Failure to state a claim upon which relief could be granted would indeed constitute a meritorious defense, Lester v. Dyer, supra, and an examination of Westoak’s motion alleges the claimed deficiencies to be as follows:

“that there is now (sic) showing by the pleadings or evidence that the trustee had abused his trust or combined with the Cestui Que Trust to the detriment of the plaintiffs. There were no allegations or proof of any improper procedures employed in the foreclosure sale, as to any notice, sales procedure or subsequent delivery of trustee deed which would have precluded plaintiffs from asserting their rights. Further, the plaintiffs’ pleadings and evidence were fatally defective in that they failed to include and prove condition precedent for setting aside a foreclosure — namely, an offer to redeem by paying the debt.”

Most of the claims are refuted by count I of the amended petition itself. It is alleged that Mr. Sauter is an officer and director of both defendant corporations as well as trustee on the deed of trust; that, as trustee, he failed to act with impartiality as to plaintiffs and was biased and prejudiced in favor of Westoak; that the construction work was grossly defective; that, in reality, Westoak and Custom Builders are one and the same entity; and that in view of the fact that the value of the land was $6,000, the sale price of $500 to Westoak was unconscionable. These allegations are sufficient to show that the claimed deficiencies, save two, do not exist. It is true that there are no allegations in the petition to the effect that the sale was conducted in violation of the terms of the deed of trust (as to such routine matters as notice, time, etc.); likewise, the petition contains no offer to redeem by paying the debt. The omission of the former would not be fatal in view of the other allegations. See Smith v. Haley, 314 S.W.2d 909 (Mo.1958). However, there is some authority from which it can be argued that an offer to redeem is a condition precedent to the successful maintenance of a suit to set aside a foreclosure sale. Westoak cites us to one case on this point, Young v. Kansas City Life Ins. Co., 329 Mo. 130, 43 S.W.2d 1046, 1048 (1931), which states by way of dictum, “Furthermore, the petition does not place the plaintiff in a position to have the sale set aside. There is no offer to redeem.” No authority is cited for this proposition. However, we think a more reasonable and equitable rule was stated in Axman v. Smith, 156 Mo. 286, 57 S.W. 105, 107 (1900), in which a petition was held by the trial court to be fatally defective for failure to allege willingness and ability to redeem. In reversing, the Supreme Court said, “Unless we are prepared to say that an insolvent debtor has no right to the aid of a court of equity to secure a fair and impartial sale of his property at the hands of his trustee, we cannot say that an offer to redeem is in every such case indispensable.” See also Spires v. Lawless, 493 S.W.2d 65, 71 (Mo.App.1973) where the court said,

“In the first place, an offer to redeem, i. e., a tender of all that is due the mortgagee, is not always an indispensable prerequisite to an action to set aside a trustee’s sale, particularly when it appears the sale was void at law and not merely voidable.”

As in Axman, where by reason of insolvency plaintiffs were not required to offer to pay the entire debt in light of the allegations of the trustee’s lack of impartiality, so should it be here in view of similar allegations concerning the trustee and the grossly defective construction work which fell far short of the specifications. Thus, failure to allege a willingness to retire the entire debt was not necessarily a fatal deficiency; it did not constitute a meritorious defense; and the trial court did not abuse its discretion in denying the motion to set aside the default judgment against Westoak. Luce v. Anglin, 535 S.W.2d 504, 506 — 507[1] (Mo. App.1976).

In Custom Builders’ motion to set aside the default judgment, the allegation is made that “a settlement of any dispute between plaintiffs and this defendant was made, with each having counsel, whereby plaintiffs paid this defendant a substantial amount in settlement.” At the hearing, Mr. Sauter testified that he received a letter from an attorney representing the plaintiffs. The letter listed various defects in the workmanship. Thereafter, according to Sauter’s unrefuted testimony, he negotiated a settlement of the claim whereby plaintiffs were relieved of $500 of. the contract price with Custom Builders. While evidence concerning the claimed settlement is not detailed, it does clearly indicate “the existence of at least an arguable theory of defense,” the burden borne by a defendant in attempting to set aside a default judgment. Luce v. Anglin, supra, 508. Settlement of a disputed claim is a meritorious defense. Town & Country Shoes Federal Credit Union v. Cramer, 350 S.W.2d 281 (Mo.App.1961).

Since the status quo has effectively been restored as between the parties, we do not believe that the ordering of a new trial will substantially harm the interests of the plaintiffs. On this record, we hold it was an abuse of the trial court’s discretion to refuse to set aside the default judgment against Custom Builders.

Plaintiffs’ motion to dismiss the appeal for failure of defendants’ brief to comply with Rule 84.04, which was taken with the case, is denied.

Accordingly, the judgment is affirmed in part, reversed in part, and remanded for trial on plaintiffs’ claim against Custom Builders Corporation.

CRIST and STEWART, JJ., concur,

      . It was defendants’ failure to appear on the appointed day rather than their failure to-plead which prompted the trial court to enter its “final judgment.”


author: SNYDER, Presiding Judge.

text:
    William H. KAMMERER et al., Plaintiffs-Respondents, v. Charles J. CELLA, Defendant-Appellant.
    No. 39994.
    Missouri Court of Appeals, Eastern District, Division One.
    July 31, 1979.

      Jesse E. Bishop, St. Louis, Justin J. Weil, Clayton, for defendant-appellant.
    David Wells, Peter A. Fanchi, Thompson & Mitchell, St. Louis, for plaintiffs-respondents.
   SNYDER, Presiding Judge.

Plaintiffs brought suit in ejectment and for damages under Count I and for additional damages under Count II of their petition. Defendant filed a counterclaim for an easement by prescription. Plaintiffs’ Count II was dismissed during the trial. After jury verdicts for defendant on both the petition and his counterclaim, the trial court granted plaintiffs’ motion for a new trial. This appeal followed.

The judgment is affirmed.

Defendant contends the trial court erred in granting a new trial. The trial court’s stated grounds for the new trial were: (1) the jury verdicts were against the weight of the evidence; and (2) defendant’s verdict directing Instruction No. 6 was erroneous.

The parties own adjoining parcels of real estate fronting on the south side of Clayton Road in St. Louis County. The eastern parcel is the location of Busch’s Grove, a restaurant which has been in existence since before 1890. Plaintiffs have owned and operated the restaurant since before 1951. The western parcel is the location of the Clay Price Shopping Center which was built in the 1950’s and is now owned by defendant. The parcels have a common boundary, the eastern line of the shopping center property being the same as the western line of the restaurant property.

A driveway that is, in part, the subject of this action was installed along the common boundary by defendant’s predecessor in title. The driveway is used by tenants of defendant and their customers as well as the general public. Evidence that this driveway extends between eight and ten- and-a-half feet onto plaintiffs’ property at its point of greatest encroachment was not contested.

The shopping center was constructed on defendant’s parcel in 1952 by his predecessor Beck. In 1959, Beck conveyed to the Pass brothers who in turn conveyed to defendant in 1962.

The driveway in question was first constructed in 1952 or 1953 at the request of Mr. and Mrs. Macner, then tenants of Beck in the shopping center. Both plaintiff William Kammerer and Beck testified that Kammerer, on behalf of all plaintiffs, gave Beck and the Macners permission to install a gravel roadway located partially on plaintiffs’ land. Both Kammerer and one of the Pass brothers testified that, in 1959 or 1960, Kammerer, again at the Macners’ request, gave Pass permission to pave the driveway so long as Pass agreed to maintain it.

Mr. Macner was deceased at the time of the trial, but Mrs. Macner, an elderly woman who spoke with some difficulty, testified that she could not remember any conversations with Mr. Kammerer in which he extended permission to use plaintiffs’ property for the driveway. To counter her testimony, plaintiffs introduced a 1975 typewritten statement signed by Mrs. Macner in which she acknowledged that such permission was obtained when the driveway was first used, and again when it was first paved.

After purchasing the property, defendant continued to maintain the driveway as had his predecessors. Portions of the driveway were occasionally torn up for the installation of drain or sewer pipes and repaved without any objection by plaintiffs. There was evidence that defendant had spent substantial sums of money maintaining the shopping center parking lots and driveways, a small percentage of which was spent on the disputed driveway. In 1975 Kammerer prevented Laclede Gas from installing a gas line on plaintiffs’ side of the driveway to service defendant’s property. Kammerer then employed a surveyor to establish the boundary, told defendant the driveway was on restaurant property and suggested they work out some sort of lease agreement.

Defendant subsequently informed Kam-merer that he had always believed the driveway in question was located entirely on his parcel. Plaintiffs then filed this suit seeking to recover possession of the disputed land as well as damages for the unlawful withholding and for rents and profits. Defendant counterclaimed to establish an easement by prescription over that portion of plaintiffs’ property in use as the driveway.

At the close of defendant’s evidence, plaintiffs’ motion for directed verdict on the counterclaim was denied. The jury, after deliberating for three hours and ten minutes returned a verdict finding the issues in favor of defendant on his counterclaim, but at the same time finding the issues in favor of plaintiffs on the petition and that plaintiffs were entitled to possession of the premises in controversy.

The court informed the jury that the verdicts were inconsistent in the eyes of the law and ordered them to deliberate further. Ultimately, the jury returned verdicts for defendant on both the petition arid the counterclaim.

Plaintiffs moved for a new trial or, in the alternative, for judgment in accordance with their motion for directed verdict on the counterclaim.

The trial court granted plaintiffs’ motion and ordered a new trial on all issues. Because the meaning of the language used by the trial court in its order is disputed by the parties, it is set out in full below:

Plaintiff’s [sic] Motion for New Trial on Plaintiff’s [sic] cause of action and on Defendant’s Counterclaim, heretofore submitted, said Motion is hereby sustained on the grounds that the verdicts were against the greater weight of the evidence in this case. All of the evidence sustained a finding that whatever use defendant had of this piece of property was permissive in nature. There was no evidence to the contrary. The testimony of one witness that she could not remember whether permission was granted or not is not probative evidence. Therefore, the verdicts are against the weight of the evidence and the Motion is hereby sustained. In addition the Court erred in giving and reading of Instruction No. 6 to the jury.

Defendant maintains the new trial order should be interpreted as grounded upon the failure of defendant to make a submissible case, a matter of law reviewable by an appellate court. Conversely, plaintiffs interpret the order as based upon the discretionary ground that the verdict was against the weight of the evidence.

An appellate court ordinarily will not review a discretionary order granting a new trial because the verdict was against the weight of the evidence. Gray v. Kop- lar-Barron Realty Co., 497 S.W.2d 185, 187[1] (Mo.App.1973); Rule 78.02. The reason is that deference must always be given to the trial court’s unique opportunity to view and judge the actual presentation of evidence and evaluate the many trial intangibles not discernible from a lifeless record. Clark v. Quality Dairy Co., 400 S.W.2d 78 (Mo.1966).

Defendant contends that the trial court’s order, because it states there was no evidence to refute plaintiffs’ evidence of permissive use, constitutes a finding that defendant failed to make a submissible case on his counterclaim. Thus, argues defendant, the order is a purely legal conclusion reviewable by this court. Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28, 33[8-ll] (Mo.App.1971).

Defendant points to the language in the trial court’s order to the effect that “[a]ll of the evidence sustained a finding that whatever use defendant had of this piece of property was permissive in nature. There was no evidence to the contrary.” He interprets this as a finding that he made no submissible case on his counterclaim for a prescriptive easement in spite of the two explicit statements in the ruling that the motion was granted because the verdicts were against the weight of the evidence.

This court is not bound by the construction either party attributes to the trial court’s language, but must make its own interpretation. Schreiner v. City of St. Louis, 203 S.W.2d 678, 683[10] (Mo.App. 1947).

In interpreting the order the twice expressed intention of the trial court to grant the new trial because the verdicts were against the weight of the evidence must be given due consideration.

The order is indeed ambiguous. If the trial court had stopped after saying the verdicts were against the greater weight of the evidence, the ruling unquestionably would have been discretionary and not subject to appellate review.

The language which defendant suggests is a holding that he failed to make a submissible case should not be so interpreted. It mentions only the evidence concerning permissive use. Adverse use is an element necessary to a prescriptive easement not mentioned in the order for a new trial.

It has been held that a use originally permissive cannot ripen into an easement, Seested v. Applegate, 26 S.W.2d 796, 799[6-10] (Mo.App.1930). However, a distinct and positive assertion of a right hostile to the owner and brought home to him can give rise to an adverse use, which may change the nature of a permissive use. Miller v. Berry, 270 S.W.2d 666, 667[3] (Mo.App. 1954); Meinhardt v. Luaders, 575 S.W.2d 213, 215[2] (Mo.App.1978).

The order itself said nothing about adverse use and can only be interpreted as finding the jury rendered verdicts against the weight of the evidence because of: (1) the evidence of permission; and, (2) the character of the evidence of notice to plaintiffs of defendant’s assertion of a hostile right. Therefore, the trial court was exercising its discretion in granting the motion for a new trial, and its judgment should be affirmed.

The case defendant relies on, Lifritz v. Sears, Roebuck and Company, supra, is distinguishable. Although the Lifritz court also specifically stated the new trial was granted because the verdict was against the weight of the evidence, it followed the oft criticized practice of sustaining the new trial motion on three grounds set forth in the motion. The three grounds, when combined, could only be interpreted as stating the plaintiffs failed to make a submissible case.

Defendant also charges that the trial court erred in granting plaintiffs’ motion for a new trial on the ground that Instruction No. 6 was erroneous.

Defendant initially contends that the trial court’s ruling is presumptively erroneous because it failed to specify the error in the instruction. Defendant also asserts that plaintiffs failed to preserve for appellate review their allegations of error as to Instruction No. 6 because the objections raised in their appeal brief were different from those raised in their motion for a new trial.

It will not be necessary to decide these two preliminary points because the cause is being remanded for a new trial on the ground that the verdicts were against the weight of the evidence. However, to furnish some guidance in the avoidance of future trial error, the alleged error in the instruction will be considered.

Defendant’s verdict directing Instruction No. 6 reads as follows:

The court instructs the jury that if they believe from the evidence that Charles J. Celia, and Middleton Realty & Theatrical Co., and their tenants were in actual, open, visible, notorious and continuous adverse use of the land in controversy for at least ten years before July 25, 1975, then they will return a verdict for Defendant on Defendant’s Counterclaim.

Instruction No. 9 which was given on behalf of plaintiffs reads as follows:

Your verdict must be for plaintiffs on defendant’s counterclaim under Instruction No. 6 if you believe:
First: That the use of the driveway on land claimed by defendant was originally by permission of plaintiffs, and
Second: That plaintiffs were never advised prior to July 25, 1965, that such use was under a claim of right other than that granted by plaintiffs [sic] permission.

Plaintiffs contend, and this court agrees, that Instruction No. 6 should have referred to or negated the permissive use affirmative defense hypothesized in plaintiffs’ Instruction No. 9.

In negligence cases, when a contributory negligence instruction is given on behalf of a defendant, it is error to give a plaintiff’s verdict director which does not refer to nor negate defendant’s contributory negligence. Moore v. Ready Mixed Concrete Company, 329 S.W.2d 14, 23-24[6, 7] (Mo. banc 1959); Fowler v. Laclede Gas Company, 488 S.W.2d 934, 936-937[6, 7] (Mo.App.1972).

Defendant cites Jefferson v. Biggar, 416 S.W.2d 933, 939 (Mo.1967) and Boll v. Spring Lake Park, Inc., 358 S.W.2d 859, 866 (Mo.1962) as holding that there is no duty to submit contributory negligence in a verdict directing instruction. They do not so hold. The point was not raised in Biggar. The Biggar decision states that the verdict directing instruction did indeed refer to the contributory negligence instruction. In Boll the court states at page 866[15] that plaintiff had the duty either to refer to or negate plaintiff’s contributory negligence in his verdict directing instruction and that he did so adequately.

No cases are cited in the briefs and none has been found by the court which discusses the necessity of referring to or negating affirmative defenses in plaintiffs’ verdict directing instructions in prescriptive easement cases. It is stated generally in MAI, How to Use This Book, page LII, that when an affirmative defense is in issue the verdict directing instruction should be modified to negate it. In Crow Contracting Corp. v. Geo. F. Smith Co., 407 S.W.2d 593, 598[5-7] (Mo.App.1966), a bailment was involved in which the affirmative defense alleged that a trenching machine was not in the possession of defendant at the time it was damaged. The plaintiff’s verdict directing instruction was held erroneous because it failed to negate the affirmative defense instruction which was supported by the evidence. The resolution this court now offers incorporates the identical reasoning as that embodied in the contributory negligence submissions and in Crow Contracting Corp.

The jury here may have considered Instruction No. 6 and found from the evidence that the hypothesized facts were true. At the same time they may have found that facts hypothesized in Instruction No. 9 were true and experienced difficulty in resolving the obvious inconsistency. The defect in the given instructions probably accounts for the action of the jury in first returning verdicts which found for both parties and which the trial court refused to accept as inconsistent.

If the jury had considered Instruction No. 6 only, ignoring No. 9, they could have found as true all the facts set forth in No. 6, and yet a verdict for defendant on his counterclaim would have been erroneous. This because there would have been a failure to find a distinct and positive assertion of a hostile right brought home to the owner. Such notice to the owner is necessary to finding a use adverse when the use was initially permissive. Pitzman v. Boyce, 111 Mo. 387, 19 S.W. 1104, 1105 (1892); Meinhardt v. Luaders, supra, 214[2]; Bridle Trail Association v. O’Shanick, 290 S.W.2d 401, 405[2 — 6] (Mo.App.1956); Miller v. Berry, supra, 670[6].

Defendant relies on Huter v. Birk, 510 S.W.2d 177 (Mo.1974) in which he says an instruction similar to No. 6 was approved. His reliance is misplaced. In Huter there was no evidence of permissive use nor was an affirmative defense instruction given, material distinctions between the cases. Plaintiffs here adduced direct evidence that the use by defendant was permissive, and such evidence requires a different view of the instruction problem.

It was error to submit Instruction No. 6 without referring to or negating plaintiffs’ affirmative defense.

The judgment of the trial court granting a new trial on all the issues is affirmed.

DOWD and STEPHAN, JJ., concur.

      . In this opinion the parties will be referred to by their trial court designations.


author: GUNN, Judge.

text:
    STATE of Missouri, ex rel. Eugene KEEVEN and George Kling, Relators-Respondents, v. CITY OF HAZELWOOD et al., Respondents-Appellants.
    No. 39991.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.

      Louis S. Czech, Clayton, for respondents-appellants.
    Richard B. Dempsey, David L. Baylard, Shifrin, Treiman, Barken, Dempsey & Ul-rich, St. Louis, for relators-respondents.
   GUNN, Judge.

Respondent City of Hazelwood appeals from a circuit court judgment in a mandamus proceeding which ordered a liquor license to be issued to relators Eugene Keeven and George Kling. Keeven is the owner of a building which had been utilized as a tavern, and Kling is the proposed tenant and operator of the tavern. The primary issues underlying Hazelwood’s appeal are: (1) whether mandamus or Administrative Procedure Act procedures properly apply to the proceedings; (2) whether relators have a nonconforming use in their property for the sale of intoxicating beverages; (3) whether the trial court properly excluded certain evidence which Hazelwood sought to introduce as a basis for denying the liquor license application. We affirm the trial court’s order directing Hazelwood to issue the liquor license.

The material facts are undisputed; most were stipulated by the parties. Relator Keeven owns a building in Hazelwood which had been continuously utilized for purveyance of liquor by the drink since 1940, long prior to Hazelwood’s incorporation as a village in 1949 or as a charter city in 1970. And, of course, the use began many years before the enactment of the Hazelwood zoning code which at the time the proceedings commenced required all premises licensed to sell liquor by the drink to have restaurant facilities under a special use permit. In February, 1974, the Hazel-wood City Council voted to revoke the liquor permit of Keeven’s tenant who was operating a bar on the property. The revocation action was held invalid by the St. Louis County Circuit Court. However, at Hazelwood’s insistence to comply with the building code, Keeven expended a substantial sum of money to make repairs to his building. In June, 1974, the Hazelwood City Council refused to renew the tenant’s liquor license on the ground that he had not disclosed certain silent partners in operation of the bar. The denial action was upheld by the circuit court.

Keeven then sought Hazelwood’s guidance on making improvements to his property pursuant to obtaining a liquor license for himself. He was advised of the required improvements under the zoning code and that he would need restaurant facilities as a condition precedent under the zoning code for the liquor-restaurant special use permit. Improvements for a restaurant-bar were made at substantial expense, and re-lators Keeven and Kling made application for the special use permit. The application for special use permit under the zoning code was denied, but no appeal was taken from the denial. Then relators applied for a liquor license which was not acted upon by the City Council until directed by mandamus action. The result of the Council’s action was to spurn the application for a liquor permit solely on the ground that the rela-tors had no special use permit for a restaurant under the zoning code. According to the testimony of the Hazelwood City clerk, except for the special use permit, the rela-tors’ application for liquor license met Ha-zelwood’s requirements in all regards including individual character requirements of the applicants. An alternate writ of mandamus was obtained directing Hazel-wood to issue the liquor permit, and subsequent circuit court action made the writ absolute resulting in this appeal.

In our consideration of this appeal we are guided by some rather fundamental precepts we do not attenuate:

We start with the proposition that the liquor business stands on a different plane than other commercial operations. It is placed under the ban of the law and is differentiated from all other occupations, and no person has the natural or inherent right to engage therein. Those who engage in the business of liquor have no legal rights save those expressly granted by license and the statute. The state may impose such conditions, burdens and regulations as it may deem wise and proper. In the eyes of the law the liquor business stands on a different plane from other pursuits and is separated or removed from the natural rights, privileges and immunities of the ordinary citizen. Kehr v. Garrett, 512 S.W.2d 186, 189 (Mo.App.1974).

Further, mandamus will not lie when the right sought to be enforced is doubtful; it is an appropriate remedy only where the right to relief is clear and unequivocal. State ex rel. Sprague v. City of St. Joseph, 549 S.W.2d 873 (Mo. banc 1977); State ex rel. Scott v. Sanders, 560 S.W.2d 899 (Mo. App.1978). Having indited the foregoing postulations, we turn our endeavors to the denouement of the case before us.

Hazelwood first attacks mandamus as the proper tool for relator’s relief. It argues that the relators did not exhaust the administrative remedies available to them when the City Council denied their application for a restaurant-bar special use permit. Hazel-wood importunes that relators should hark to the dictates of the Administrative Procedure and Review Act, specifically § 536.110, RSMo 1969, which requires an aggrieved in a contested administrative proceeding to seek circuit court review within 30 days after the decision of the administrative agency. Hazelwood adverts to the fact that relators failed to appeal the City Council’s denial of the special use permit. But Ha-zelwood’s argument in this regard smokescreens the true issue. The fact is that relators did not need a special use permit under the zoning code to obtain a liquor license. They had a nonconforming use which entitled them to their liquor license aside from the zoning code, assuming, of course, that they were otherwise qualified for such a license. The record affirmatively establishes that relators met all necessary personal conditions to qualify for their license, and the use existed many years before Hazelwood or its zoning code. As such, the nonconforming use for sale of liquor by the drink could be continued. One Hundred Two Glenstone, Inc. v. Board of Adj., 572 S.W.2d 891 (Mo.App.1978); Mullen v. Kansas City, 557 S.W.2d 652 (Mo. App.1977).

As the relators established the nonconforming use of the property and because there was no impediment in their personal conditions for a liquor license, they were entitled to continue in that use without obtaining a special use permit as required by the subsequent enacted zoning ordinance. Blue Summit Landfill, Inc. v. Jackson County, 532 S.W.2d 484 (Mo.App. 1976). The only basis for denial of the liquor license to relators was the false premise that they were without a special use permit. To cure this defect, relators appropriately sought a remedy by way of mandamus. Indeed, it is true that administrative procedures must be exhausted before other court relief may be granted; that, certainly, mandamus is not available in a “contested case” before an administrative body. State ex rel. Dodson v. McNeal, 552 S.W.2d 34 (Mo.App.1977). See: Westside Enterprises, Inc. v. City of Dexter, 559 S.W.2d 638 (Mo.App.1977). But since the denial of the liquor license was not a “contested case” under the Administrative Procedure and Review Act, the relators were entitled to review by way of mandamus. §§ 536.010, 536.110, 536.150, RSMo 1969.

Hazelwood asserts State ex rel. Sprague v. City of St. Joseph, supra, as support for its denial of the license, claiming that rela-tors failed to prove any right to the license as they were without the required special use permit. But for the reason that the property had a nonconforming use and the relators were otherwise qualified for a liquor license, they were not required to have a special use permit, and Sprague is infelicitous.

Hazelwood adjures that no one has a vested right to a liquor license, and we do not hold contrary here. What confronts us is that Hazelwood has not been able to make the quantum jump over the chasm created by the fact that relators established a nonconforming use in the property to sell liquor by the drink. The legality of a nonconforming use of property is vested by the use and not by the ownership or tenancy. 8A E. McQuillan, Municipal Corporations § 25.185 (3rd ed. 1965). See: State ex rel. Barnett v. Sappington, 266 S.W.2d 774 (Mo. App.1954); Killian v. Brith Sholom Congregation, 154 S.W.2d 387 (Mo.App. 1941). We do not hold nor did the trial court find that relators had a vested right to a liquor license; it is the property through its usage which has the right and qualifies for the use of the tavern. The use here has been continuous. The fact that the tenant was unable to renew the liquor permit did not provide the requisite intention to abandon the use or failure to act carrying the implication that the use was to be discontinued. State ex rel. Capps v. Bruns, 353 S.W.2d 829 (Mo.App.1962). Bruns fairly covers the situation confronting us:

Manifestly, where a person is lawfully conducting a business in a certain area, he has a vested right to continue, even though such business use has become, by reason of changed zoning, a nonconforming use. To then say that the city, by the simple expedient of first requiring and then denying him a license, could destroy such vested right and put him out of business, would be absurd and unreasonable. Such is not the law. Id. at 831.

Hazelwood’s contention that a tavern may not be a nonconforming use is too fenes-trated to hold legitimate reasoning and is contrary to established recognition of such use. See: State ex rel. Barnett v. Sappington, supra.

Hazelwood’s duty to follow the law encompasses the duty to recognize valid nonconforming uses — in this case a tavern— and thereby exempt relators’ property from the application of otherwise valid zoning ordinances enacted subsequent to the inception of the use. “A zoning ordinance may be valid generally, yet invalid in its application to a specific tract.” Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324 (Mo.App.1976).

Hazelwood makes much ado that in its order the trial court indicated that the City Council acted in a legislative rather than administrative capacity in denying the permit. While not necessarily determining whether the trial court was correct in its reasoning, we do find that it reached the correct result in issuing the mandamus. Having determined that there was no conditional impediment to the issuing of the liquor license except for the improper application of the zoning ordinance, the City Council was required to discharge its purely ministerial duty to issue the license. Such ministerial action was properly compelled by mandamus. State ex rel. Patterson v. Tucker, 519 S.W.2d 22 (Mo.App.1975).

Hazelwood next charges the trial court with error in excluding as irrelevant police reports of police disturbances and motor vehicle accidents adjacent to or in the direction of the tavern. Hazelwood argues that these reports were the basis for some of the City Council’s votes to deny the special use permit, which denial was subsequently the basis for the denial of the liquor license. The argument is irrelevant. At the hearing on the liquor license application, the City Council never considered any evidence of peace disturbances or motor vehicle accidents associated with the operation of the bar by prior tenants. In a contested case, Hazelwood would be in no position to allege that it based its determination on evidence not before it when it made its decision, State ex rel. Steak n Shake, Inc. v. City of Richmond Heights, 560 S.W.2d 373 (Mo.App.1977). “As a general rule judicial review of administrative decisions is limited to matters that arose before the administrative agency and ‘deals only with the questions of law that appear on the face of the record,’ thus precluding consideration of evidence other than that before the agency.” Gore v. Wochner, 558 S.W.2d 333, 334 (Mo.App.1977). Hazelwood could not ask the courts to uphold its action for reasons not stated in its decision. The sole reason given for denial of the liquor license at the hearing was “noncompliance with the Municipal Code.” “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Missouri Pacific R. Co. v. United States, 203 F.Supp. 629, 632 (E.D.Mo.1962), quoting Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87 (1943). However, since we have ruled this to be a noncontest-ed case, review is de novo, § 536.150, RSMo 1969; Karzin v. Collett, 562 S.W.2d 397 (Mo.App.1978). But, even so, there is no ground for denying relators’ license. While the evidence which Hazelwood sought to introduce might serve as basis for denying a special use permit, it would not support a denial of a liquor license under the Hazel-wood Municipal Code, § 4-8. Under our ruling, evidence which would support the denial of a conditional use permit is irrelevant to the issue of whether or not a liquor license should be issued.

Hazelwood’s final contention is that the court erred in finding that the City Council’s refusal to grant a special use permit had already been determined in prior litigation. Its brief does not state how this error could have led the court to an erroneous conclusion but merely states that the prior litigation was irrelevant. This point makes no difference to the decision. The trial court reached the correct result in issuing the mandamus. The reasoning regarding prior judicial determination, even if incorrect, does not affect the proper result ordered. Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751 (Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . The record indicates about $8,000 in expenditures for improvements.

      . The Hazelwood Council minutes read:
      Mr. Ward made a motion, seconded by Mr. Eckstein, to deny the application for a liquor license for GG’s Inn of the 40’s inasmuch as they do not have a Special Land Use Permit for a restaurant and, therefore, the requirements as set forth in the Municipal Code for the granting of a liquor license have not been met.
      * * * * * *
      The motion was passed and the liquor license as petitioned by Mr. George Kling, for GG’s Inn of the 40’s was denied, based on the non-compliance with the Municipal Code as stipulated in the motion.

      . 36 Mo.L.Rev. 444 (1971), contains an excellent discussion of review procedures in contested cases on Missouri liquor licensing, centering on Kopper Kettle Restaurants, Inc. v. City of St. Robert, 439 S.W.2d 1 (Mo.App. 1969).

      . Green v. Copeland, 286 Ala. 341, 239 So.2d 770 (1970), is directly on point in this regard. Accord: 1 R. Anderson, American Law of Zoning § 6.58 (1968).


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Benjamin Earl CHASTAIN, III, Defendant-Appellant.
    No. 10909.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 3, 1979.
    Motion for Rehearing or to Transfer Denied Aug. 27, 1979.
    Douglas M. Hamilton, Joplin, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Chief Judge.

A jury found defendant Benjamin Earl Chastain guilty on two counts of selling marijuana and fixed the punishment at 10 years’ imprisonment on each count. The trial court ordered the sentences to run concurrently. Defendant appeals.

Defendant’s sole allegation of error is that the evidence is insufficient to support the conviction.

Count I of the information charged the defendant with selling marijuana to Stuart Parker on April 15, 1977, for $15.00. Count II charged the defendant with selling marijuana to Parker on April 24, 1977, for $20.00. Both sales were alleged to have taken place in Jasper County.

The state’s evidence showed that in March 1977 Jackie Moss talked with Gayle Wells, a sergeant with the Joplin Police Department, and informed Wells that he wanted to assist in narcotic investigations because his wife had used marijuana and was involved in “heavier use” of narcotics.

On April 15,1977, Stuart Parker, an officer with the Carthage Police Department, was assigned to the Joplin Police Department “to work undercover narcotics.” On that day Wells introduced Parker to Moss. About 9:50 p. m. Moss and Parker went to Darrell’s Fussball Hall, 1612 South Main, Joplin. Parker was disguised as a hippie. Moss, who was previously acquainted with the defendant, introduced Parker to defendant. Defendant asked Parker what they were doing and Parker told defendant, “We are out trying to get high.” Defendant asked Parker if he would like to buy some marijuana and Parker said he would.

At defendant’s suggestion Parker drove defendant to the front of a house located at 718 Connor, Joplin. Moss was in the back seat. Defendant told Parker the price for the marijuana was $15.00. Parker gave defendant that sum. Defendant went into the house, returned with some marijuana and gave it to Parker.

Parker turned the marijuana over to Officer Wells. The marijuana remained in police custody until it was taken to a local college laboratory where scientific examination of it confirmed its character as marijuana.

With respect to the second offense, Parker testified that on April 24,1977, he again met defendant at the fussball hall. Accompanied by Moss, Parker and defendant again went to the house at 718 Connor. Parker gave the defendant $20.00. The defendant went into the house, returned with marijuana and gave it to Parker. Parker turned the marijuana over to Wells. A subsequent laboratory examination confirmed that the subject of the sale was in fact marijuana.

Defendant’s brief does not attempt to point out any failure of proof on the part of the state with respect to any element of the two offenses. Instead the brief singles out the following alleged weaknesses in the state’s case:

1. In his police report Parker failed to mention that Moss was present at the time of the sales.

2. Officer Wells “put down that the marijuana (involved in the April 24 offense) was obtained at 20th and Main Street.”

3. “Why would defendant sell marijuana to someone to whom he was introduced by the husband of his mistress?”

With regard to (1), Parker’s police report was marked as defendant’s Exhibit F. On cross-examination by defense counsel Parker identified the exhibit and stated that Moss’ name did not appear in the report. Counsel did not ask the witness the reason for the omission nor was the report itself offered into evidence.

With regard to (2), the “evidence card” attached to the marijuana involved in the first sale made mention of “20th and Main” but the testimony of Officer Wells, elicited on cross-examination by defense counsel, was to the effect that 20th and Main “was the location that Officer Parker made contact with the defendant.” Parker testified that after the first sale he had driven defendant back to the fussball hall and the two men parted company. Parker also testified that he had telephoned Wells from 20th and Main, approximately three blocks from the fussball hall, to report the first sale. This call was made shortly before Parker delivered the marijuana to Wells.

With regard to (3), there was testimony that Moss was separated from his wife and that she had been living with the defendant during April 1977. The cross-examination of Moss by defense counsel was apparently designed to show that Moss was angry with the defendant and thus it would be unlikely that the defendant would sell marijuana to a stranger to whom he had been introduced by Moss.

As stated in State v. Longmeyer, 566 S.W.2d 496, 499[1 — 8] (Mo.App.1978), it is not the function of this court to substitute its judgment for that of the jury. It is the role of this court to determine whether or not there was substantial evidence to support the verdict. Substantial evidence means evidence from which the triers of the facts “reasonably could find the issue in harmony therewith.” State v. Taylor, 445 S.W.2d 282, 284[4] (Mo.1969).

“A defendant is not entitled to a judgment of acquittal because of discrepancies or conflicts in the testimony of the state’s witnesses. State v. Cox, 478 S.W.2d 339, 341 (Mo.1972). Conflicts in the evidence, the determination of the credibility of the witnesses and the weight to be given their testimony are within the peculiar province of the jury. State v. Kellick, 521 S.W.2d 166, 167 (Mo.App.1975). The fact that a witness’ testimony may to some extent be contradictory does not prevent its constituting substantial evidence. Inconsistencies in testimony are questions for jury resolution. State v. Hodges, 537 S.W.2d 886, 887 (Mo. App.1976); State v. Collett, 526 S.W.2d 920, 925 (Mo.App.1975).” Longmeyer, supra, at 499.

Although the purported weaknesses stressed by the defendant may have been matters which the jury could consider in determining the credibility of the witnesses and the weight to be given their testimony, they do not rise to the rank of flaws which deprive the state’s evidence of its substan-tiality. Defendant’s appeal has no merit. The evidence was sufficient to support the verdict.

The judgment is affirmed.

TITUS and GREENE, JJ., concur.


text:
    Stephen M. ARNOLD, Appellant, v. BROADMOOR DEVELOPMENT CO., Respondent.
    No. 40898.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 7, 1979.
    Law Offices of Marvin Klamen by Maureen Swihart, St. Louis, for appellant.
    Robert C. Jones, Harold A. Tzinberg, Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Clayton, for respondent.
   GUNN, Judge.

Plaintiff-appellant Stephen Arnold appeals from an order granting the motion of defendant-respondent Broadmoor Development Co. for summary judgment on Arnold’s claim for specific performance of a real estate contract. The denouement of the case turns on the issue of whether Arnold’s action is barred by the statute of frauds, § 432.010, RSMo 1969. We find that the action is so barred and affirm the summary judgment in favor of Broadmoor.

According to the record, Broadmoor was engaged in the business of selling condominiums. Arnold executed a form real estate sales contract to buy a condominium in St. Louis County for a total acquisition price of $75,100. The contract was not executed by Broadmoor, but a “salesman” signed the contract in the space designated for acknowledging receipt from Arnold of $7,000 “as Earnest Money on account of [the] sale and to be applied on the total down payment at close”. While, in fact, $7,000 was not given by Arnold, about three weeks after the signing of the contract by him, he sent a check for $3,500 to Broad-moor which was endorsed and deposited by it. Shortly thereafter, Broadmoor sent the following letter to Arnold with its check for $3,500:

Stephen M. Arnold
210 Brighton Way
Clayton, Missouri 63105
RE: Building # 5, Unit # 1 The Greens of Broadmoor
Dear Mr. Arnold:
Enclosed please find our check # 1640 in the sum of $3,500.00.
We are sorry to inform you that we are not able to accept your offer to purchase Building # 5, Unit # 1 of the Greens of Broadmoor.
Cordially yours,
BROADMOOR DEVELOPMENT COMPANY

The check referred to in Broadmoor’s letter was not endorsed or cashed by Arnold. Instead, he filed suit for specific performance, and upon the facts stated, Broad-moor’s motion for summary judgment was granted.

On appeal, Arnold argues that, taken collectively sufficient memoranda of the sales contract existed to loosen the ligatures of the statute of frauds and to release it from its strictures. Indeed, as Arnold insists, the impediment of the statute of frauds may be overcome by resort to extra memoranda which will constitute a written agreement, provided that it is manifest from such documents that each is to be considered a part of the total writing. Frostwood Drugs, Inc. v. Fischer & Frichtel Const. Co., 352 S.W.2d 694 (Mo.1961).

The extra writings to which Arnold adverts to remove the millstone of the statute of frauds are: (1) the unsigned sales contract; (2) the earnest money check which was cashed; (3) the returned earnest money deposit and accompanying letter. However, the cumulative effect of these writings is still insufficient to overcome the deficiencies which exist from the lack of Broadmoor’s signature to the sales contract.

In viewing the sales contract we need not inquire into the authority of the salesman acknowledging receipt of the earnest money deposit to bind Broadmoor to the contract. The space in which the salesman’s signature appears purports only to acknowledge receipt of the deposit — nothing more. The signature space for Broadmoor which would bind it to acceptance of the terms of the contract is unsigned. Further, there is certainly nothing which would indicate that the salesman had the required § 432.010 written authority to act in Broadmoor’s behalf. And, of course, he did not profess to accept the agreement.

Arnold, relying on Chouteau Land & Lumber Co. v. Chrisman, 204 Mo. 371, 102 S.W. 973 (1907), insists that the earnest money check when endorsed and cashed by defendant operated as a sufficient writing to lift the veil of the statute of frauds. In the Chouteau Land & Lumber case, an agreement to purchase certain land owned by Chouteau was made between an unauthorized agent of the seller and the buyer. The unauthorized agent left the buyer’s earnest money check, together with a note explaining the terms of the agreement, on the desk of a duly authorized agent who then caused the check to be cashed. Arnold relies heavily on the court’s finding that an enforceable contract existed where the only document in evidence signed by the party to be charged was the check endorsed by the seller.

Careful review of the Chouteau case reveals, however, that the court never expressly addressed the issue of the formal sufficiency of a signed writing under the statute but, rather, turns on a finding that the agreement was taken out of the statute altogether under the doctrine of partial performance, which is not the situation here.

Although it is true that payment of earnest money will suffice to “bind a contract” for the sale of goods otherwise unenforceable under the statute of frauds, the doctrine of part performance through payment of earnest money alone is inapplicable to contracts for the sale of realty, Alonzo v. Laubert, 418 S.W.2d 94 (Mo.1967); Swearengin v. Stafford, 188 S.W. 97 (Mo.1916); Bean v. Valle, 2 Mo. 126 (1829).

Arnold is also correct in his postulation that several documents may be read together in order to constitute a written memorandum of an agreement sufficient to meet the formal requirements of the statute of frauds. Bayless Building Materials Company v. Peerless Land Co., 509 S.W.2d 206 (Mo.App.1974). However, it is equally true that such separate documents must be connected by express reference to one another or by clear implication established through their respective contents. Frostwood Drugs, Inc. v. Fischer and Frichtel Construction Co., supra. Further, where the terms of an agreement are supplied by an unsigned document, the signatures of the party to be charged may be found in a separate writing, provided that one document expressly or explicitly incorporates the other by reference. Aurora Water Co. v. City of Aurora, 129 Mo. 540, 31 S.W. 946 (1895); Blue Valley Creamery Co. v. Consolidated Products Co., 81 F.2d 182 (8th Cir. 1936).

In this case there was no evidence before the trial court that the check in question, delivered three weeks after the unsigned contract, contained any reference to that contract whatever. Without such evidence, the endorsed check cannot be incorporated into an unsigned agreement:

The checks relied upon ... do not refer to any prior writing satisfying the requirements of the statute [of frauds]. The indorsement of a check given for the payment of the purchase price under a contract is a sequence to rather than a part of the contract, and cannot be considered as the equivalent of a subscription to the contract or a memorandum thereof. Blue Valley Creamery Co. v. Consolidated Products Co., supra, at 188.

Accord: Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31 (1903), which holds that an endorsed earnest money check under an unsigned land sale agreement is a “separate and distinct obligation”, sequential to and in no way part of, the underlying contract. Further, in the absence of a reference incorporating the underlying unsigned written agreement, “[t]he signatures of the [endorsing parties] on the [land sale earnest money] check being required to cash it the necessary implication is that they signed for this purpose and not to authenticate the unsigned agreement”. Ashuelot Paper Co. v. Ryll, 109 N.H. 573, 259 A.2d 657, 659 (1969).

Absent any evidence of incorporation by express reference, the trial court could not as a matter of law have read the plaintiff’s earnest money check and the unsigned form contract together for the purpose of satisfying the statute of frauds. The check certainly does not supply the requisite memorandum to comply with the statute. Shaffer v. Hines, 573 SW.2d 420 (Mo.App.1978), and Byers v. Zuspan, 241 Mo.App. 1103, 264 S.W.2d 944 (1954), are felicitous in this regard.

Arnold also asserts the letter from Broadmoor returning the earnest money check as further documentary evidence of a binding agreement. Arnold alleges that a letter repudiating or denying a contract may be utilized under certain circumstances to satisfy the statute of frauds. And, indeed, that is so. Wussler v. Peterson, 270 S.W.2d 12 (Mo.1954). But that point of law is unavailing to Arnold, for it is palpable that the letter referred to is an explicit rejection of the offer to purchase, not a repudiation or denial. Neither does the check itself nor its restrictive endorsement conditions indicate an acceptance of the contract. The restrictive endorsement is nothing more than a release intended as part of good business practice.

We find that the documents signed by Arnold, rather than supplying the binding force missing from the unsigned contract, are congruent with an intent by Broadmoor to refuse to accept the offer of purchase. Arnold’s action is therefore — as clearly found by the trial court — barred by the statute of frauds.

Finally, Arnold argues that summary judgment is inappropriate in that an unresolved question of fact exists as to the authority of Broadmoor’s salesman signing the earnest money receipt to bind it to the contract. What we have already said regarding such signature, meaning no more than an acknowledgment of the receipt of earnest money and the lack of any § 432.010 written authority by the salesman to bind Broadmoor, is dispositive of this point.

Arnold, in essence, suggests that summary judgment is precluded by the possibility that a factual issue may arise upon further development of the case, i. e., that given the opportunity, he may be able to adduce some evidence of written authority. Such is not the law. If facts exist that would preclude entry of summary judgment, the party claiming the benefit of such facts must bring them to the court’s attention. Index Store Fixture Co. v. Farmers’ Trust Co., 536 S.W.2d 902 (Mo.App.1976). Having failed to produce evidence which he could have produced in opposition to a motion for summary judgment, a party suffering entry of summary judgment must abide the result and cannot complain that the judgment deprived him of the benefit of such evidence. State ex rel. Reardon v. Mueller, 388 S.W.2d 53 (Mo.App.1965).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Broadmoor submitted a motion to dismiss the appeal for mootness. In view of our opinion, we need not launch into a discussion on this issue; we merely deny the motion to dismiss.


author: CRIST, Judge.

text:
    Patrick McLAUGHLIN, Appellant, v. Mary E. McLAUGHLIN, Respondent.
    No. 40565.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 7, 1979.

      Morley & Boecknjan, Daniel V. Boeck-man, O’Fallon, for appellant.
    Wayne T. Schoeneberg, O’Fallon, Davis & Ayers, Philip T. Ayers, St. Louis, for respondent.
   CRIST, Judge.

The parties’ childless marriage was dissolved after ten years. Upon appeal, the husband raises complaints concerning the division of property and the award of $610.00 in attorney’s fees. We affirm.

As we understand them, the husband’s complaints concerning the division of property are that (1) the trial court erred in awarding the major marital asset, the family home, to the wife because it in effect set apart the home to the wife as her separate property despite evidence the home was marital property or because the court in effect treated the award of the home as an award of maintenance to which the wife was not entitled and that (2) the trial court failed to specifically value and characterize the parties’ pension plans as marital or separate property, making the trial court’s order not a final judgment.

The trial court’s division of assets found to be marital property awarded the wife marital property consisting of the marital home having a net value of approximately $28,000.00 together with its furnishings valued by the court at $500.00, her automobile, her checking and savings accounts with small balances, and any interest the wife might have in her pension plan which had an unspecified value and to which the wife would not be entitled for an additional two years. The husband was awarded his automobile and his union vacation and pension plans. The husband’s Missouri pension fund had a value of $19,000.00, and he also had a Florida fund.

The record does not indicate the trial court’s award of the marital residence was a de facto award of the home as the wife’s separate property or as maintenance. The trial court’s finding that the wife and her family made the major contribution toward purchase of the home is supported and not contradicted by the record. Such factor is relevant to the division of property. Section 452.330, RSMo. Supp.1973. Upon a consideration of all the relevant factors, including contributions by both spouses toward the acquisition of property, the economic circumstances of the parties, and the marital conduct of the parties, we cannot say the trial court erred in awarding the home to the wife. See, D.L.L. v. M.O.L., 574 S.W.2d 481, 486 (Mo.App.1978).

As to the husband’s complaints concerning both the husband’s and the wife’s interests in pension plans and his interest in his vacation plan, his contention, the court made no finding as to whether such plans were separate or marital property, is refuted by the trial court’s decree in which the court finds all to be marital property. We cannot say the trial court’s conclusion is erroneous for the husband’s plans. In re Marriage of Powers, 527 S.W.2d 949, 957 (Mo.App.1975). Although evidence the wife’s pension plan does constitute vested property is less than conclusive, we fail to see any prejudice to the husband by the trial court’s conclusion the pension was marital rather than her separate property.

We also find no error concerning the husband’s complaints that the trial court’s findings failed to specify a value for his vacation plan and both parties’ pension plans. The trial court’s findings were not required, absent a request by the parties, to be any more specific than they were. In re Marriage of Schulte, 546 S.W.2d 41, 44-46 (Mo.App.1977). Further, the husband supplied testimony indicating his plans had a value in excess of $19,000.00 and cannot charge the court with error in using a value figure which he supplied. McCall v. McCall, 574 S.W.2d 496, 499 (Mo.App.1978).

Finally, the husband complains of the trial court’s award of attorney’s fees to the wife, arguing the wife has not shown need justifying an award of attorney’s fees. However, the trial court has wide latitude in awarding attorney’s fees pursuant to Section 452.335, RSMo. Supp.1973, upon a consideration of all relevant factors. We cannot hold the trial court abused its discretion by its award of attorney’s fees. An award of attorney’s fees is not necessarily inconsistent with a failure of proof of neediness or a failure to award maintenance. In re Marriage of Ebinger, 573 S.W.2d 738, 742 (Mo.App.1978); Zubiena v. Zubiena, 557 S.W.2d 58 (Mo.App.1977).

The judgment is affirmed.

DOWD, P. J., and SATZ, J., concur.


author: H. A. KELSO, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold W. PRESTON, Defendant-Appellant.
    No. 10612.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 8, 1979.

      John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Dee Wampler, Wampler & Wampler, Springfield, for defendant-appellant.
   H. A. KELSO, Special Judge.

This is an appeal from a conviction wherein the appellant, hereinafter referred to as the defendant, was convicted in a jury waived trial in the Circuit Court of Greene County, Missouri, of driving while intoxicated, third defense. Punishment was assessed at one year in the county jail.

The facts in this case are rather simple and largely uncontroverted.

On April 30, 1976, the defendant Harold W. Preston was driving a 1964 Chevrolet station wagon east on Interstate Highway No. 44 in Greene County, Missouri. A Missouri state highway patrol trooper, Billy Chadwick, by reason of a call from an unidentified citizen, began to follow the driver later identified as Preston. Trooper Chadwick testified that the defendant’s car was weaving back and forth so that at times the car’s left wheels were completely across the centerline and at other times the right wheels were off on the shoulder. The trooper testified that after pacing the defendant a half to three-quarters of a mile during which time the Preston car was traveling about thirty-five miles per hour, in an area of Interstate Highway No. 44 where the minimum speed limit was forty miles per hour, and that he finally stopped the defendant.

The trooper testified that he had to assist defendant Preston to get out of the car and observed that the defendant was slow of movement, unsteady on his feet, his speech was slurred, and his eyes were bloodshot. The trooper noted a strong smell of alcohol about the defendant and concluded that he was intoxicated and arrested him.

After taking the defendant to the Greene County jail, Trooper Chadwick and Missouri state highway patrol Corporal Earnest McCutchen explained the Missouri implied consent law to the defendant. Corporal McCutchen observed the same indications of intoxication that were testified to by Trooper Chadwick.

At this time, the Corporal, who had a valid Type Two permit, testified that he proceeded to administer a breathalyzer test using methods taught him at the Missouri State Highway Patrol Academy and following the procedures according to a check list outlined by the manufacturer of the machine and approved by the Department of Health. The test disclosed a twenty-two hundredths of one percent by weight of alcohol in defendant’s blood.

The trial judge was asked by the state to take judicial notice of § 564.442-1(3), V.A. M.S., the section of the statutes defining what volume of alcohol is evidence of intoxication. There being no objection, the Court took note of the statute.

Although this would appear to be a simple driving while intoxicated case, there was a vast amount of testimony in the case. However, the evidence important to the defendant’s contentions of error can be summarized as follows: No alcoholic liquors were found in the appellant’s car. He denied having had a drink at the time of his arrest. No “manufacturer’s rules” nor “test graph sheet” were used in the testing procedure and the test ampoules used in the test case were destroyed and the test result was allowed.

All of the above evidence comes in the state’s case in chief or as a result of either direct or cross-examination.

The only evidence on behalf of the defendant came from Dr. Robert L. Ernst, an Associate Professor of Chemistry at Southwest Missouri State University, who testified that it was possible to save the test ampoule up to a year and a half which would enable a test to be made of the volume of the chemical and the size and quality of the glass ampoule. Dr. Ernst further testified that the thickness of the glass in the ampoule and the quality of the glass would make a difference in the results of the test.

The defendant claimed error as follows: He complains that the rules of the Division of Health were not followed in giving the test and that the use of the check list is without authorization. We find no merit in the contention of the accused. The use of the check list appears to be only a procedural matter to insure compliance with the rules laid down by the Department of Health, as mandated by the legislature. No claim was made by the State that the “check list” itself was any evidence of guilt or innocence and that it merely showed a compliance with the statute and rules laid down by the Department of Health. Approval of the use of the check list may be found in State v. English, 575 S.W.2d 761 (Mo.App.1978), and State v. Barker, 490 S.W.2d 263 (Mo.App.1973).

The defendant complains that the trial court erred in not suppressing the evidence of the breathalyzer test in that the full information of the test was not made available as required by § 564.441-4, V.A. M.S., because the test ampoule used in the instrument in this case was destroyed after the test was completed on the defendant. It may be important to note, that the defendant does not question the admissibility of the breathalyzer test in general, but only the procedure used in the instant case.

The defendant’s claim of the violation of his constitutional’s rights, in not preserving the ampoule used in the testing, is not new or novel. The issue has been before the courts of most, if not all of the states, since the United States Supreme Court handed down the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady held it is a violation of the accused’s due process rights for the prosecution to suppress favorable evidence which is material either to the accused’s guilt or his punishment. Thus, the defense in cases such as the instant case is that destruction of test ampoules, without defendant being given access to them, is a suppression of evidence which might be favorable to the accused.

Of the fifty states of the United States, only three seem to adopt a view favorable to the defendant’s position in this case. The states of California, Alaska and Oregon are those three. However, California, by statute, requires the preservation of the ampoule and further requires that a retest-able ampoule be used. Thus, it would appear that when this issue is raised by a defendant only Alaska and Oregon courts find the destruction of the ampoule to be a violation of due process. See Lauderdale v. State, 548 P.2d 376 (Alaska 1976); State v. Michener, 25 Or.App. 523, 550 P.2d 449 (1976).

A number of states have simply held retesting not to be scientifically feasible or reliable. However, the decision in the case before us need not turn on that question.

The real answer to the defendant’s contention is to be found in that Brady held the suppressed evidence must be both material and exculpatory.

Does the destruction of the ampoule in the instant case meet that test? We think not. Even if the ampoule had been preserved and found to be faulty this would not have been exculpatory. An exculpatory statement explains away guilt but it does not create innocence. In Edwards v. State, 544 P.2d 60 (Okl.Cr.1976), the Oklahoma Criminal Court of Appeals states “A re-examination of the ampoules, if technically feasible, would fall short of producing evidence which could be characterized as material as to the issue of guilt or innocence.” 544 P.2d at 64.

In a recent case, State of South Dakota v. Jeffrey Rand Helmer, 278 N.W.2d 808 (S.D. 1979), the Supreme Court of South Dakota adopted this same position, saying: “We hold therefore that both the materiality and the exculpatory nature of the ampoule is lacking, and that the failure to preserve the ampoule is not a denial of due process rights. Further, we agree with those courts that have held that the accused’s ability to have an independent blood test taken to challenge the breathalyzer result is sufficient protection of an accused’s due process rights.” The South Dakota Supreme Court cites State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976) and State v. Cantu, 116 Ariz. App. 356, 569 P.2d 298 (1977).

In State v. Hanson, 493 S.W.2d 8 (Mo. App.1973), our St. Louis brethren disposed of a failure to preserve the test ampoule by saying at 11: “. . . [T]he uncontra-dicted evidence was that the test was administered in accordance with the rules of the Division, no prejudice to the defendant was shown, and we adhere to our ruling in Barker [State v. Barker, 490 S.W.2d 263 (Mo.App.1973)] rejecting the same contention here made.”

Therefore, it is the holding of this Court that the judgment of the trial court is affirmed.

All concur.


author: COOPER, Justice.

text:
    Danny SANDERSON et al., Petitioners, v. James L. MILLIGAN, Jr., Trustee et al., Respondents.
    Supreme Court of Tennessee.
    June 25, 1979.
    Jerrold J. Becker, U. T. Legal Clinic, Knoxville, for petitioners.
    James L. Milligan, Jr., A. L. Witt, James M. Crain, Knoxville, for respondents.
   OPINION

COOPER, Justice.

This action was prosecuted by James L. Milligan, Jr., the substitute trustee under the will of Willie Mae Sanderson, to gain possession of property located at 2717 Sand-erson Street in Knoxville. The chancellor found that legal title to the property was in the substitute trustee, but that petitioner, Ruth Sanderson, was entitled to possession of the premises for her lifetime under an oral trust. The Court of Appeals reversed the chancellor, citing the oft-quoted statement that an oral declaration of a trust by the settlor must be prior to or contemporaneous with a conveyance. We granted cer-tiorari on the representation that the controlling question is whether an oral trust can be created in real property where record title is in and remains vested in the settlor. However, on examination of the record, we find, as a matter of fact, that a declaration of the trust was made prior to or contemporaneous with a transfer of record title to the property to Willie Mae Sanderson under the will of D. B. Sander-son — admittedly a circumstance under which a trust can be created by an oral declaration.

The record shows that in 1941, petitioner Ruth Sanderson married James Sanderson, the son of D. B. and Willie Mae Sanderson. For several years following the marriage, Ruth and James lived in the home of D. B. and Willie Mae Sanderson. This arrangement proved to be unsatisfactory and Ruth moved out, taking her children with her and filed suit for divorce.

In order to effect a reconciliation between his son and Ruth, D. B. Sanderson went to the petitioner and told her he had a home for her and his son as long as they lived. He then completed the construction of a residence at 2717 Sanderson Street, the property here in dispute, turned the property over to petitioner and James, with the express statement they could live there as long as either of them lived. Petitioner and her husband moved into the property in 1944, and made it their home until the death of James Sanderson in 1969. Since that time, petitioner has lived in the house alone.

On trial of this action, the parties stipulated that “D. B. Sanderson is the only declared name record owner” of the property located at 2717 Sanderson Road, and that he bequeathed “his entire estate to Willie Mae.”

Further, as noted by the Court of Appeals “the uncontradicted testimony supports the finding that D. B. Sanderson told the [petitioner] and her husband they could have the property as their home during their lifetimes. After the death of D. B. Sanderson, Willie Mae Sanderson told the [petitioner] and her husband the same thing.” There is also evidence that during the lifetime of D. B. Sanderson, Willie Mae told petitioner and her husband they could use the property as their residence for life.

While Tennessee has enacted the substance of the English Statute of Frauds which requires the transfer of land to be in writing, it has not enacted section 7 of the statute, requiring trusts to be in writing. Absent this statutory prohibition, this court has consistently recognized that a trust may rest upon a parol agreement where the declaration of trust was made prior to or contemporaneous with a transfer, either by deed or by will, of an interest in realty. See Brantley v. Brantley, 198 Tenn. 670, 281 S.W.2d 668 (1955); Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666 (1935); Mee v. Mee, 113 Tenn. 453, 82 S.W. 830 (1904); Linder v. Little, 490 S.W.2d 717 (Tenn.App.1972); Kelly v. Whitehurst, 37 Tenn.App. 360, 264 S.W.2d 1 (1953). As a safeguard against fraud, the trust, and its terms must be proven by evidence that is clear, cogent, and convincing. Hunt v. Hunt, supra; Lin-der v. Little, supra.

In this case we have a situation where the evidence shows clearly, cogently, and convincingly that the holder of legal title, D. B. Sanderson, expressly granted petitioner the right to occupy the residence at 2717 Sanderson Street during her lifetime in return for her dismissing her divorce action against James Sanderson, that this right was expressly recognized by Willie Mae Sanderson during the lifetime of D. B. Sanderson, and on receipt of record title to the property under the will of D. B. Sanderson, Willie Mae again voiced the right of petitioner to occupy the house during her lifetime. Under our case authority, these facts are sufficient authority to establish a valid oral trust in favor of Ruth Sanderson, entitling her to possession of the property located at 2717 Sanderson Street for her lifetime.

The judgment of the Court of Appeals is reversed. The decree of the chancellor is affirmed, and the cause is remanded to that court for enforcement of its decree. Costs of the cause are adjudged against the trustee of the estate of Willie Mae Sanderson.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.


author: FONES, Justice.

text:
    BEMIS COMPANY, INC., Appellant, v. Henry HINES, Appellee.
    Supreme Court of Tennessee.
    July 30, 1979.

      Sidney W. Spragins, Spragins & Murchison, Jackson, for appellant.
    George L. Morrison, Jackson, for appellee.
   OPINION

FONES, Justice.

Defendant appeals from a decree in a workmen’s compensation case awarding fifteen percent permanent partial disability to the body as a whole.

Two issues are raised. First, defendant says the Chancellor erred in reopening the evidence, after a final decree dismissing the case, and permitting plaintiff to introduce additional evidence on the question of permanent disability. Second, that there was no competent medical evidence upon which to predicate an award of permanent disability.

I.

A final judgment was entered in the trial court on November 9, 1976, which recited that plaintiff had been paid temporary total disability benefits through March 13, 1976, the date that maximum recovery was reached, according to the treating physician, that medical benefits had been paid and that there was no competent and substantial medical evidence of permanent disability, and therefore the suit was dismissed.

On December 7, 1976, plaintiff filed a written “Motion to Set Aside Decree and Restore the Cause to the Docket.” Neither the title nor the format of the motion bears a striking resemblance to the usual motion for new trial. However, it is clearly ascertainable from a reading of the motion that, in substance, a new trial was sought on the single ground that the Court was in error in adjudging that there was no medical evidence of permanent disability. In fact, the motion attempts to point out affirmatively, in great detail, that Dr. Warm-brod, the treating physician, whose deposition was taken by defendant, and introduced into evidence by plaintiff, had actually given plaintiff a ten percent permanent partial disability rating.

After that motion was heard, the Chancellor entered an order reciting that the motion “should be treated as a petition to rehear” and should be granted on the question of “whether there is expert medical evidence that the plaintiff has experienced permanent disability.” That order further provided that, “[T]he evidence at such hearing on behalf of plaintiff shall be limited to expert medical testimony which the defendant shall have the opportunity to rebut by either expert or non-expert testimony.” The rehearing was held, plaintiff introduced, as additional evidence, the deposition of Dr. R. J. Barnett, and defendant submitted no new evidence. Subsequently, the Chancellor entered a decree awarding fifteen percent permanent partial disability.

Defendant, in support of his first assignment of error, insists that the motion filed by plaintiff after the final decree of November 9, 1976, is “unknown under the rules of practice in this State”; that the only conceivable grounds upon which the trial court could have granted a petition to rehear and reopened the case for the reception of additional evidence on the question of permanent disability was that of newly discovered evidence, and that none of the prerequisites to invoke that ground were shown or were present in this case.

Perhaps there were those among the bench and bar of Tennessee who thought that with the adoption of Tennessee Rules of Civil Procedure, including Rule 59, that all motions in the circuit and chancery courts seeking to have the trial court reexamine errors of fact or law occurring during the trial, jury or non-jury, and the results reached, would thereafter be designated simply a motion for a new trial, replacing multiple other titles in use at the time, including petitions to rehear in chancery. But, perhaps because this Court has never expressly issued an edict to that unequivocal effect, variations in title and form, such as we have herein, continue. Thus, it seems appropriate in this workmen’s compensation case to look to the substance rather than form.

As we have heretofore indicated, the motion filed by plaintiff on November 9, within thirty days of the final decree, contains sufficient substance to merit its designation as a motion for a new trial, on the single ground that the Court erred in failing to recognize that there was expert medical opinion introduced into the record that would justify an award of permanent partial disability.

It also appears to us that the Chancellor granted plaintiff’s motion for a new trial, not on the ground of newly discovered evidence, but because a re-reading of Dr. Warmbrod’s deposition convinced him that he had erred in holding that there was no expert medical evidence to support an award of permanent partial disability. We are entitled to indulge that assumption because Dr. Warmbrod’s deposition did support an award of permanent partial disability. It is also significant to note that permanent partial disability was the only issue for adjudication at the first trial. We therefore overrule defendant’s first assignment of error.

II.

On direct examination by defendant’s lawyer, Dr. Warmbrod had testified that except for lumbro sacral muscle spasms that were tender to touch, he was unable to find any abnormality in the plaintiff and his persistent pain for many months was unusual for someone his age, eighteen; that he had had plenty of time to, and in his opinion had reached, maximum recovery on March 18, 1976. Also, the doctor thought that plaintiff may have had some “functional overlay” and depression that was impeding his recovery. He sent him to Dr. Bond, who did not testify.

Near the end of his direct examination he testified as follows:

“Q. Based upon your examination and treatment of Mr. Hines, do you have an opinion as to whether or not he has any permanent loss of physical function as a result of his injury?
A. I definitely know of no reason that he would have any permanent disability.”

Oh cross examination he testified, in part, as follows:

“Q. Now, doctor, you say that he reached maximum recovery — what date in March did you say?
A. I do say that this was hard to say, but I dated it, I guessed, on the 18th of March, based on my findings and x-ray findings, I would have thought that someone that suffered this injury would have achieved maximum benefit by this time.
Q. Well, then, was he — and you say he has no permanent disability?
A. Well, I was unable to demonstrate anything that would leave him any permanent disability.
Q. Well, all right, now, then when he reached maximum recovery in March, was he completely well?
A. He was still having some spasms and tightness of his lumbar sacral muscles.
Q. Well, do you consider that disability?
A. That’s some disability, yes, sir.
Q. Percentage wise, how would you rate it anatomically? Then, you say there is some disability, what anatomical disability rating would you give it?
A. This gets into interpretation which I’m — you all are going to — may confuse me — I may be a little confused, slightly, but I did give him ten percent, based on the complaints of pain and the persistent muscle spasms which he had at that time.
Q. You had no doubt about his undergoing this pain he’s complaining of, did you?
A. No — he, he was having pain, yes sir, no, I had no doubt about it.”

Thus, in spite of his testimony that he did not know of any reason that plaintiff would have any permanent disability, he gave plaintiff a ten percent disability based upon complaints of pain, of which he had no doubt, and the persistent muscle spasms. We are of the opinion that Dr. Warmbrod’s testimony, as the treating physician, was adequate to support an award by the trial judge of permanent disability. Of course, it is settled law that this Court cannot disturb the trial judge’s award if there is any material evidence to support it.

We find it unnecessary to discuss the question of whether Dr. Barnett’s medical opinion was incompetent to support an ■ award because of defendant’s contention that he was not a treating physician and that his opinion was based entirely on subjective complaints. But, see T.C.A. § 24-718 and Combustion Engineering, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn.1978).

The decree of the Chancellor is affirmed, costs are adjudged against defendant.

BROCK, C. J., and COOPER, HENRY and HARBISON, JJ., concur.