author: SHANGLER, Presiding Judge.

text:
    Raymond J. BOOTHE, Appellant, v. STATE of Missouri, Respondent.
    No. KCD27736.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.

      Lawrence F. Gepford, Jeffery L. Alena, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    ' Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This appeal is from a denial of a motion to vacate judgment and sentence under Rule 27.26. The defendant was accused by separate indictments with two acts of first degree murder. The indictments were in conventional form and clearly sufficient. On the motion of the defendant the two causes were consolidated for trial, but over his objection the indictments were amended by the phrases: “or during the commission of a burglary” and “either alone or knowingly acting in concert with others.” The jury assessed the death penalty on each charge; on appeal the convictions were affirmed and the sentences commuted to life imprisonment. State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972).

The post-conviction motion asserted five separate grounds for relief, each denied by the trial court after evidentiary hearing. On this appeal all have been abandoned except for the contention that the amendments to the indictments rendered them unlawful, deprived the trial court of jurisdiction of the causes and invalidated the convictions. The precise contention is that the terms added to the indictments altered the offenses from first degree murder to felony-murder, thus enabled the State to establish guilt by a reduced quantum of evidence, and resulted in substantial amendment without authority of statute or rule.

As a general principle of law, in the absence of a statute or rule which enables, the court may not make or permit amendment of an indictment. State v. Holbert, 399 S.W.2d 142, 144[3], The reason, of ancient origin, is that indictments [contradistinct from informations] are found upon the oath of a jury and ought be amended only by them. Rex v. Wilkes, 4 Burr 2527, 2569, 98 Eng.Rep.Reprint 351 (1770). It was in reliance on this principle that Holbert held that, although a prosecutor could properly substitute an information for an indictment under Rule 24.02, he could not correct a fatally defective indictment merely by the addition of an essential element originally lacking.

Our decisions, however, do not regard an indictment as altogether inviolable after return by the grand jury, but in the manner authorized by the criminal statute of jeo-fails [§ 545.030 RSMo 1969] allow amendment of form which does not prejudice the substantial rights of the accused. Hayes v. State, 501 S.W.2d 508, 510[3, 4] (Mo.App. 1973); State v. Hoyt, 324 Mo. 837, 24 S.W.2d 981 (1929). Hayes affirmed a plea of guilty under an indictment for first degree murder from which deliberately had been deleted. Against the contention that the amendment worked a qualitatively different charge, the court determined that murder second degree as an included offense of murder first degree could have been proved under the original indictment and therefore, in terms of jeofails, was an “imperfection which [did] not tend to the prejudice of the substantial rights of the defendant upon the merits.” Hoyt allowed stricken from an indictment two of the four allegations of prior felony convictions included by the grand jury for enhancement of punishment. The court refused to invalidate the indictment which otherwise properly stated the principal offense as well as former convictions for enhancement of punishment. The court rejected the contention that the amendment violated the oath of the grand jury and considered the stricken matter as surplusage under the provision of jeofails [§ 545.030 1(14)] that no indictment shall be held insufficient “for any surplus-age or repugnant allegation, when there is sufficient matter alleged to indicate the crime and the person charged.”

The appellant does not deny that the indictments fairly charged murder in the first degree but only that the amendments to statutory felony-murder changed the substance of the grand jury accusations against him and thus invalidated the convictions. The law does not consider, however, statutory murder [under § 559.010 as then in effect] a distinct offense but only one means of committing murder in the first degree. State v. Jewell, 473 S.W.2d 734, 738[1, 4] (Mo.1971). Thus, an accusation which charges murder-first degree in the common form allows proof of statutory felony-murder. State v. Jenkins, 494 S.W.2d 14, 17[1] (Mo.1973). The amendments did nothing more than further specify the proof the State intended to make, just as though the defendant had been granted a bill of particulars under Rule 24.03. They worked no prejudice to the defendant but rather facilitated the confrontation of issues already implicit in the indictment as originally stated.

In like manner, the addition to the grand jury accusations of “either alone or knowingly acting in concert with others” merely described the mode of proof and did not change the offense.

We conclude that the amendments were authorized by the criminal statute of jeo-fails, thus the complaint on this appeal is without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Johnnie STERLING, Appellant.
    No. KCD 27782.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.

      Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Richard G. Roth, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Having waived a jury trial, defendant was tried to the court and convicted of burglary, second degree, and stealing, and sentences of six and three years respectively were imposed to run concurrently. He now exhorts this court to relieve him of the convictions on the sole ground that the evidence is insufficient to support them. Perforce, a thorough study of the evidence is required.

In taking measure of the evidence in this case to determine whether it is sufficient to support the convictions, this court views it in the light most favorable to the state, accepting as true all evidence (whether circumstantial or direct) and inferences to be reasonably drawn therefrom favorable to the verdict and rejecting all evidence and inferences unfavorable thereto. State v. Mussman, 526 S.W.2d 62 (Mo.App. 1975); State v. Reed, 453 S.W.2d 946 (Mo. 1970); and State v. Harris, 452 S.W.2d 577 (Mo.1970). Conjunctionally, when the state’s case rests upon circumstantial evidence the obtaining rule is that “the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Ramsey, 368 S.W.2d 413, 416 (Mo. 1963). State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970), however, recognizes that application of the obtaining circumstantial evidence rule in criminal cases is somewhat tempered in that “the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence [;] . . . the mere existence of other possible hypothesis [sic] is not enough to remove the case from the jury.”

The state’s evidence, in the order presented, lends itself to being fairly summarized as follows: Charles E. O’Farrell was employed by “Burstein-Applebee” as manager of its store at 1012 McGee Street, Kansas City, Missouri. At approximately 2:00 A.M. on May 1, 1974, he was called to the store. Upon his arrival he observed cars and police “all around ... on the roof, everywhere.” One of the police officers at the scene asked him to unlock the front door of the store in order that the police might enter the building. O’Farrell complied with the officer’s request. While at the scene O’Farrell noticed that two windows located at the rear of the store building had been broken and opened — a basement window and a window on the first floor. He testified that when he closed the store and locked up the previous evening the two windows were intact. Outside the store building he identified a number of car stereo speakers displayed to him by the police as the property of his employer and stated that they had a value of $65.00. According to O’Farrell the car stereo speakers he identified had previously been on two “displays” located on the elevator at the basement level of the store. After identifying the items O’Farrell went to the elevator and observed that the “displays” were “torn apart” and that the car stereo speakers which had been on them “were ripped out”. O’Farrell further testified that defendant was not an employee of “Burstein-Apple-bee” and had no permission to be inside the store building.

James Bruce Wycoff, an officer on the Kansas City, Missouri, Police Department, testified that in response to a call he arrived at the “Burstein-Applebee” store at 1012 McGee Street at approximately 1:30 A.M. on the morning of May 1, 1974. Upon his arrival he observed another police officer “covering” the front door of the store building. Consequently, he went around to the rear of the store building where he encountered three other police officers. Their joint investigation at the rear of the building disclosed the two broken windows previously described by Mr. O’Farrell, manager of the store. The broken basement window was a “swivel window” and the “lower” portion was “standing open”. While at the rear of the store building he and the other officers observed a Cadillac automobile sitting in a parking lot “directly across the alley” to the west of the store building. Wycoff and the other three officers approached the Cadillac and discovered that it was occupied by two “males”. The two male occupants were asked to get out of the Cadillac and produce identification. The male occupants complied with the officers’ request and also gave the officers permission to search the Cadillac. During their search of the Cadillac the officers discovered a number of car stereo speakers in the trunk which they seized and later displayed to Mr. O’Farrell, the store manager, outside the store building. Mr. O’Farrell, as previously noted, identified the car stereo speakers as being the property of his employer. Wycoff testified that one of the occupants of the Cadillac had white shoes on that “were covered with red brick dust similar to that on the back of the building”; further, when he observed defendant at the scene following his arrest he observed “red brick dust” on defendant’s clothing.

Richard A. Lecuru, an officer on the Kansas City, Missouri, Police Department, testified he was with the “Canine Unit” and at approximately 1:30 A.M. on May 1, 1974, in response to a call, he proceeded to 1012 McGee Street. He had a police dog with him and both entered the “Burstein-Apple-bee” store through the broken basement window at the rear of the building. A search of the basement was uneventful except for the fact that the elevator, which was the only inside means of access between the basement and first floor of the building, was not working. The store manager was called to the scene to unlock the front door so that the remainder of the building could be searched. After the store manager unlocked the front door, Lecuru and his canine friend entered the store building and searched the first floor level. The search of the first floor was uneventful. The two then proceeded to the second floor of the store building where the dog began “indicating” a window type opening in a suspended false ceiling. Officer Lecu-ru climbed through the opening in the false ceiling and discovered defendant “hiding” up there some 15 or 20 feet south of the opening. As Lecuru was arresting defendant the two fell through the suspended false ceiling and ended up on the floor below. While the two were falling defendant began screaming that he was a juvenile, that there was someone else hiding in the basement of the building, and that he had been forced into the building by some people in a Cadillac which was at the rear of the building. Lecuru later apprehended another person in the basement of the building. During the trial Lecuru identified defendant as the person he arrested when discovered hiding in the store building above the suspended false ceiling.

No evidence was offered by the defendant.

From the evidence just iterated the trier of the facts could reasonably infer (and obviously did) that defendant, acting in concert with others, broke into and entered the “Burstein-Applebee” store building at 1012 McGee Street, Kansas City, Missouri, in which merchandise belonging to them was kept, with the intent to steal such merchandise; further, that defendant, acting in concert with others, did intentionally appropriate merchandise belonging to “Burstein-Applebee” without its consent, and did exercise dominion over said property in a manner inconsistent with the rights of “Burstein-Applebee” by taking and removing said property from said store building. Under the charges leveled against defendant such reasonable inferences drawn from the evidence met all the elements of burglary, second degree, as prescribed by Section 560.070, RSMo 1969, and of stealing as prescribed by Section 560.156, RSMo 1969. The following facts warrant special emphasis as constituting an evidentiary basis for such reasonable inferences obviously drawn by the trier of the facts: (1) the existence of the broken windows at the rear of the building which were intact the previous evening when the store was closed; (2) the presence of a number of car stereo speakers in a Cadillac automobile occupied by two male subjects which was parked in the vicinity of the rear of the store building; (3) the identification of the car stereo speakers found in the Cadillac as belonging to “Burstein-Applebee” which had been in the store building the previous evening; (4) the discovery of defendant hiding in a concealed place above a false ceiling in the store building approximately thirty minutes after the police first arrived at the scene; and (5) defendant’s admitted knowledge of the presence of the two male subjects and the Cadillac they were occupying in the vicinity of the rear of the store building. See: State v. Simmons, 494 S.W.2d 302 (Mo.1973); State v. Barker, 478 S.W.2d 325 (Mo.1972); and State v. Allen, 420 S.W.2d 330 (Mo.1967).

Defendant puts great stock in the fact that according to the state’s own evidence he told Officer Lecuru that he had been forced into the building by the male subjects who were in the Cadillac and that such stood uncontradicted as proof that he was not acting in concert with others in burglarizing the “Burstein-Applebee” store and the related burglarious stealing that occurred. In taking this position defendant conveniently ignores the obtaining rule that the trier of the facts could reject the self-serving portion of his statement to Lecuru as untrue and accept the remaining portions as true. State v. Caffey, 457 S.W.2d 657, 664 (Mo.1970); State v. Sallee, 436 S.W.2d 246, 254 (Mo.1969); and State v. Caldwell, 434 S.W.2d 571, 575 (Mo.1968). The trier of the facts could, and obviously did, reasonably infer from the remaining portions of defendant’s statement to Officer Lecuru, i. e., the presence of another subject in the building and the presence of persons in a Cadillac parked in the vicinity of the rear of the building, that defendant was aware of the presence and activities of such persons and acted in concert with them in the perpetration of the burglary and related stealing.

Defendant’s claim that he was forced into the building is extremely tenuous in light of the fact that he was discovered and apprehended some thirty minutes after the police arrived at the scene concealed above a false ceiling, particularly so in view of the flurry of police activity in and around the “Burstein-Applebee” store for some thirty minutes prior to his discovery. Evidence of concealment is admissible, State v. Cochran, 366 S.W.2d 360, 362 (Mo.1963), cert, denied, 375 U.S. 981, 84 S.Ct. 492,11 L.Ed.2d 426 (1964), and may be considered by the trier of the facts in determining the guilt or innocence of an accused, State v. Harris, 325 S.W.2d 352, 358 (Mo. App.1959). Such being the case, defendant’s self-imposed concealment turned out to be his nemesis.

The facts disclosed by the record, and the reasonable inferences to be drawn therefrom, after rejecting the self-serving portion of defendant’s statement to Officer Lecuru, are (1) consistent with each other and with the hypothesis that defendant, acting in concert with others, burglarized the “Burstein-Applebee” store and stole property therefrom belonging to “Burstein-Applebee”, are (2) inconsistent with defendant’s alleged innocence, and (3) palpably exclude every reasonable hypothesis of defendant’s innocence.

Judgment affirmed.

All concur.

      . Defendant was charged with the separate but related offenses in the same information as provided for by Section 560.110, RSMo 1969.

      . The record is silent as to defendant’s age and no issue of his age was ever made.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Theodis COKER, Appellant.
    No. KCD 27871.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.

      Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Richard G. Roth, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

By a verdict of a jury appellant was convicted of the commission of the crime of robbery in the first degree, and his punishment was set by it at 10 years imprisonment. In accordance with the verdict, judgment and sentence were entered of confinement in the Department of Corrections of Missouri, for 10 years.

The sole issue presented is whether the trial court erred, over appellant’s objection that the testimony was hearsay, in permitting the state to elicit from police officer Gibson that two of the victims told him that they could recognize one of the suspects to the robbery.

On September 29,1974, about 12:40 in the morning, Richard Anders'on was working as the manager of Paseo Sundries, 31st and Paseo, Kansas City, Missouri. Two black men came into the store and advised Anderson that this was a holdup. One of the men had a pistol and said, “ ‘This is a hold up, give me your money.’ ” Anderson said,

You know me, what are you doing this for?’ ”. Anderson swatted at the gun. The man with the pistol told him to hurry up, so he put the money, about $40, in a sack and the men went out the door and ran. Anderson did not know the man’s name at the time of the robbery, but had seen him in the store several times before as a customer. He definitely felt he could identify him if he saw him again. Anderson and Curtis McKinney, who was working in the store at the time of the robbery, were taken by the police to police headquarters, where they looked through Lincoln High School yearbooks. McKinney knew the man because he had gone to school with him, but did not know his name. They were able to pick out the man as appellant from the yearbooks, and both made an in-court identification of appellant as the man who committed the robbery.

On direct examination both Anderson and McKinney testified, without objection, that they told an officer, or officers, at the scene of the robbery that they could identify the man who robbed the store.

Officer Gibson testified that he and officer Ingersoll responded to the report of the robbery, and took down the initial information from the witnesses and conducted a crime scene search. The testimony to which objection was made and which is the point on this appeal was: “Q. Did any of the parties, witnesses, state to you that they felt they could recognize the — MR. WATSON: Judge, I would object to that as being hearsay, what other parties may have told this witness. THE COURT: Overruled. A. Yes, they did. Q. (By Mr. Bertram) What information did you get from the witnesses that led to further investigation? MR. WATSON: Again I object to any information they may have received from other parties as being strictly hearsay. THE COURT: But isn’t — step up here just a moment. [Colloquy omitted] * * * THE COURT: Well, the objection will be overruled. Q. (By Mr. Bertram) What in-

formation did you get from Mr. Anderson concerning the suspect? A. Mr. Anderson related the events of the robbery and informed me that the party — one of the parties that was involved was a regular customer and he was sure he could identify this party. * * * Q. What occurred when you brought those yearbooks down to Mr. Anderson and Mr. McKinney? A. Mr. Anderson was viewing the 1972 — I believe it was the 1972 yearbook and Mr. McKinney was viewing the 1973 yearbook, and were seated next to one another and both were trying to view both books at the same time, and Mr. Anderson told me that he had seen the picture of the man that was involved— MR. WATSON: Judge, I object to this as being hearsay. THE COURT: Sustained. MR. WATSON: I ask the Court to instruct the jury to disregard the — THE COURT: The jury will disregard the last part of the answer.”

Appellant relies upon State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), and State v. Fleming, 354 Mo. 31,188 S.W.2d 12 (1945), which was cited and relied upon in Degraffenreid. Factually, the situation here is not quite the same as in Degraffenreid. There the officer testified that the identifying witness actually identified defendant by means of a photograph and subsequently identified him again by selecting defendant from a lineup. Here, cumulatively, witness Gibson testified, although of a hearsay nature, that Anderson told him at the scene that he could identify the robber. In Degraffenreid, there was testimony by the 78-year old witness as to a one-on-one identification, and, as noted in the concurring opinion, the hearsay testimony of the officer may well have been the deciding factor in the jury’s verdict, and that it could not be concluded that the testimony was harmless cumulative evidence. Here the testimony of Gibson that Anderson had seen in the yearbook the picture of the man that was involved was stricken. Here, there was more than one identifying witness — both Anderson and McKinney identified appellant as the robber, not only in court, but also from the yearbook and a lineup, in which, as the evidence shows, both Anderson and McKinney were seated some distance apart. The rule of harmless error in the admission of officer Gibson’s testimony applies to this case. See State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972), where although a police officer testified that the victims told him their house had been broken into and they had been raped, the hearsay testimony was non-prejudicial where both victims were present in court, were sworn as witnesses, had taken the stand, had confronted appellant, and had testified fully with respect to the crimes, and were cross-examined thoroughly (as here); State v. Nimrod, 484 S.W.2d 475 (Mo.1972); and note State v. Kennedy, 513 S.W.2d 697, 699[4] (Mo.App.1974), where hearsay testimony concerning a hospital confrontation identification was held cumulative and harmless where there was strong primary evidence of defendant’s identification by the victim and a gas station attendant [here the victim, Anderson, and the eyewitness, McKinney, both testified and each identified appellant thrice — in court, the lineup, and the yearbook). The court said, in Kennedy, “It cannot be said, as it was in Degraffenreid, that the hearsay testimony was such as to ‘tip the scales against [the] defendant.’ ” Such is the case here.

The judgment is affirmed.

All concur.


author: McMILLIAN, Judge.

text:
    Harvey TWELLMAN, Plaintiff-Respondent, v. LINDELL TRUST COMPANY, a corporation, Defendant, Third-Party Plaintiff (Appellant), v. CONTINENTAL BANK & TRUST COMPANY, a corporation, Third-Party Defendant (Appellant).
    Nos. 35964, 35965.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 10, 1976.

      Barnard, Baer, Lee, Timm & McDaniel, Michael J. Doster, Herbert E. Barnard, St. Louis, for third-party defendant (appellant).
    Evans & Dixon, Ralph C. Kleinschmidt, Gerard F. Hempstead, St. Louis, for defendant, third party plaintiff (appellant).
    Greenfield, Davidson, Mandelstamm & Yoorhees, Lawrence N. Doreson, Alphonso H. Voorhees, St. Louis, for plain tiff-respondent.
   McMILLIAN, Judge.

This is a civil action for money damages sustained by plaintiff when defendant, Lin-dell Trust Company (Lindell Trust), paid a Treasurer’s check bearing a forged endorsement. Lindell Trust brought a third-party action against defendant, Continental Bank and Trust Company (Continental) alleging that Continental had guaranteed and warranted that the endorsement in question was genuine and that the endorser had the authority to endorse. At the close of all the evidence, the court sustained plaintiff’s motion for a directed verdict and entered judgment against Lindell Trust for $50,000. The court also directed a verdict in like amount in favor of Lindell Trust against Continental. Both Lindell Trust and Continental appealed. In an opinion filed October 21, 1975, we affirmed the judgment in favor of plaintiff, but ordered that the amount be reduced from $50,000 to $14,500. Plaintiff then moved for a rehearing, which we granted.

At the rehearing, the parties argued two issues: (1) whether we had exceeded our authority by reducing the judgment as a matter of law and (2) whether plaintiff is a proper party to sue for conversion under § 400.3^419, RSMo 1969. After duly considering the arguments made upon the rehearing, we again determine that judgment should be entered for plaintiff against Lindell Trust and for Lindell Trust against Continental in the amount of $14,500.

We glean from the transcript that plaintiff lent one Michael Londe $50,000 for two (2) days under an arrangement whereby Londe would purchase and sell for a quick profit certain International Harvester vehicles. Since plaintiff knew that the loan was to be used to purchase International Harvester vehicles, he purchased, from Lin-dell Trust, a Treasurer’s check payable to International Harvester and delivered the chfeek to Londe, who, in turn, delivered his two day post-dated check to plaintiff to secure the loan. Not only did Londe’s postdated check “bounce,” but also he forged the endorsement of the payee and cashed the Treasurer’s check at Continental, which guaranteed prior endorsements and was paid by Lindell Trust.

Prior to cashing the check, Londe had taken the check to Roedel Brothers, Inc., an International Harvester dealer. He wanted to give the dealer the $50,000 check for a $4,000 truck and to receive the difference in change. However, Roedel Brothers, Inc., refused to accept the check because the payee was International Harvester.

In any event, the endorsement accepted by Continental was as follows:

"Pay to the order of Michael Londe Roedel Brothers Internation (sic)
Harvester Trucks (signed) Carle [sic] Roedel (signed) Michael Londe" (Emphasis added.)

Continental accepted the check and added its own endorsement. The Treasurer’s check was forwarded through the Federal Reserve Bank to Lindell Trust who paid out the $50,000.

From the evidence it is unclear who first questioned the Roedel endorsement, but eventually plaintiff obtained an affidavit from Carl Roedel stating he did not sign the check. Both the affidavit and the check through the Federal Reserve were returned to Continental, but Continental refused to reimburse Lindell Trust.

After having discovered that the check was not used for the intended purpose and that Londe’s check had “bounced,” plaintiff sought repayment from Londe. While not altogether successful, plaintiff did recover $35,500. However, plaintiff testified that he was not seeking reimbursement for the $50,000 transaction, but rather for any part of the $121,000 Londe owed him overall from other transactions. In any event, although plaintiff used the $35,500 to make payments on his own notes at Lindell Trust, he did not tell Lindell Trust which of his obligations owed to them it should apply the payment. Therefore, Lindell Trust applied the $35,500 payment to the $50,000 note which' plaintiff had executed in exchange for the $50,000 Treasurer’s check. This allocation reduced the balance due on the $50,000 note to $14,500. Subsequently, plaintiff paid, from his own funds, his entire indebtedness owed to Lindell Trust.

Despite Lindell Trust’s application of the $35,500 from Londe to the December 15 note, plaintiff seeks in this lawsuit to recover the face value of the Treasurer’s check, i. e., $50,000 from Lindell Trust for having paid out that amount over a forged endorsement. While we uphold the trial court’s decision that Lindell Trust and ultimately Continental are liable to plaintiff as a matter of law, we reduce the amount of the judgment to $14,500.

Defendant Lindell Trust and third-party defendant Continental allege several points of error which we will discuss individually. First of all, we note Continental’s contention that the directed verdict denied them their right to a jury trial under Art. I, § 22(a), Const, of Mo. 1945, V.A.M.S. But this constitutional provision for right of jury trial does not apply to questions concerning directed verdicts. Auffenberg v. Hafley, 457 S.W.2d 929, 934 (Mo.App.1970) and Knight v. Calvert Fire Ins. Co., 268 S.W.2d 53, 55 (Mo.App.1954). A verdict may be directed for a plaintiff (who naturally has the burden of proof) in those rare cases where there are no genuine fact issues which should be submitted to the jury. Morris v. Reed, 510 S.W.2d 234, 238 (Mo. App.1974); Alaska Fed. Sav. & Loan Ass’n v. Hoffman, 485 S.W.2d 118, 120 (Mo.App. 1972); Auffenberg v. Hafley, supra, at p. 934. In our case, after reviewing the evidence in the light most favorable to the defendant and third-party defendant, we find that there was no fact issue which could have been decided which would have supported a jury verdict against plaintiff. Therefore, the trial judge did not err in directing a verdict for plaintiff.

The first of the substantive arguments made by Lindell Trust and Continental is that they are not liable to plaintiff since their payment over the forged endorsement was not the proximate cause of plaintiff’s losses. Plaintiff’s loss is said to be due to his dealings with Londe and the failure of Londe’s post-dated check of December 15, to cover plaintiff’s note. It is true that if Londe’s check had cleared Lin-dell Trust would have applied its proceeds to pay off plaintiff’s $50,000 note of December 15 and plaintiff would have suffered no loss. But Londe’s wrongdoing is not what is at issue in this case. We are concerned with the liability of two banking institutions who wrongfully dealt with a negotiable instrument. Defendants recognize that the Uniform Commercial Code (hereinafter referred to as U.C.C.) §§ 400.3-101 to 400.-3-307 RSMo 1969, governs liability wherever its specific provisions apply and they, in fact, cite several sections of Articles 3 and 4 as being applicable. In view of the purpose of the U.C.C. to promote uniformity and certainty and the negotiability of instruments such as the Treasurer’s check in this case, we do not think that a collateral issue of proximate cause should apply. Though the U.C.C. sets out various defenses to suits on a negotiable instrument, it does not mention proximate cause. We feel that only the specific U.C.C. defenses should be considered in a suit on this instrument. If these defendants are liable on the $50,000 instrument under the U.C.C., then any possible unliquidated liability Londe might have on another instrument or on a contract is irrelevant.

We note, however, that there is a recent Missouri case, Union Fin. Co. v. Nat. Bank in North Kansas City, 463 S.W.2d 70 (Mo. App.1970), which uses the proximate cause concept to relieve a bank from its liability for paying a check over a forged endorsement. In the Union Fin. Co. ease, the plaintiff made a loan to a husband and wife by drawing a check payable to them jointly. The wife forged the name of the husband both on the endorsement of the check and on the promissory note and the security agreement which constituted the consideration for the loan. The plaintiff-drawer sued the drawee bank for paying the amount of the check over the forged endorsement of the co-payee husband. The court held that the bank was not liable since plaintiff’s loss was proximately caused by the forgery on the note and security agreement, not the forgery of the check’s endorsement. Union Fin. Co., supra, at pp. 72, 74.

Our case can be distinguished on the facts from the Union Finance Company case since there, forgeries had occurred on three instruments (the negotiable note, security agreement and the check) all within the same transaction. Here, there was only one forgery on one instrument, the Treasurer’s check — and plaintiff suffered a loss when the defendants paid that check over the forged endorsement. Furthermore, the Union Finance Company case although it was subject to the U.C.C., was based primarily on three pre-U.C.C. cases: Public Loan Corp. of Warren v. Jacobs, 144 N.E.2d 505 (Ohio App.1955); Lincoln Building & Loan Ass’n v. Liberty Nat. Bank & Trust Co., 312 Ky. 282, 227 S.W.2d 191 (1950) and Provident Sav. Bank and Trust Co. v. Fifth-Third Union Trust Co., 43 Ohio App. 533,183 N.E. 885 (1932). The courts in all three of these pre-U.C.C. cases, as well as the Union Finance Company case, all seemed to have been heavily influenced by the fact that the plaintiffs had been negligent in their own actions and then tried to hold the banks liable. As we stated above, we feel that the U.C.C. should govern whenever it is applicable. Section 3 — 406 (which will be discussed below) deals directly with the effect of a plaintiff’s negligence on a payor bank’s liability. We feel that that section should be the only negligence defense we should consider. Similarly, Commercial Credit Corp. v. Empire Trust Co., 156 F.Supp. 599 (W.D.Mo.1957), aff’d 260 F.2d 132 (8th Cir. 1958) which Lindell Trust cites was decided prior to the enactment of the U.C.C. and therefore is not dispositive for the reasons given above.

Next, Lindell Trust and Continental contend that they have three specific defenses under the U.C.C., which should have been submitted to the jury. The first one we will discuss is § 3-406, which deals with negligence on the part of a plaintiff.

Section 3-406 of the U.C.C., provides as follows:

Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business. (Emphasis added.)

Defendants would have to prove three separate elements to come within the scope of this provision. They would have to show (1) that plaintiff was negligent; (2) that his negligence substantially contributed to the making of the unauthorized signature (i. e., the forged endorsement); and (3) that the payor Lindell Trust paid in good faith and in accordance with reasonable commercial standards of its business. After a careful review of the record, we conclude that the evidence of all the parties supports the trial court’s finding that § 3-406 does not apply as a matter of law. Gast v. American Cas. Co. of Reading, Pa., 99 N.J.Super. 538, 240 A.2d 682 (1968).

Defendants contend that plaintiff was negligent in dealing with Londe and entrusting a $50,000 check to Londe who was not the payee without thoroughly investigating him. They argue that plaintiff was negligent in succumbing to a scheme that amounted to nothing more than a “high class pigeon drop.” In retrospect, plaintiff does appear to have been unwise in choosing to deal with Michael Londe. But the specific act of delivering a check to someone who is not the payee does not necessarily constitute negligence within the meaning of § 3-406. Society Nat. Bank of Cleveland v. Capital Nat. Bank, 30 Ohio App.2d 1, 281 N.E.2d 563 (1972) and Jerman v. Bank of America Nat. Trust & Sav. Ass’n, 7 Cal.App.3d 882, 87 Cal.Rptr. 88 (1970). Plaintiff was not required to anticipate a forgery. Gast v. Am. Cas. Co. of Reading, Pa., supra. The evidence does not reveal anything which should have made plaintiff suspicious of Londe on December 15. His partner, Robert Kligman, had investigated Londe informally and had been repaid some money previously lent to Londe, plus a profit. Plaintiff and Klig-man’s C.P.A., who had had previous dealings with Londe, vouched for Londe originally.

Secondly, even if a jury could have found that plaintiff’s actions here constituted negligence (which we do not think it could) it would also have to find that such negligence “substantially contributed” to the “making of the unauthorized signature,” i. e., the forgery. The cases are somewhat in conflict in their interpretation of the phrase “substantially contributes” as used in § 3-406. Some courts insist that the phrase is equivalent to the precode phrase “proximate cause.” See Society Nat. Bank of Cleveland v. Capital Nat. Bank, 30 Ohio App.2d 1, 281 N.E.2d 563 (1972); Fargo Nat. Bank v. Massey-Ferguson, Inc., 400 F.2d 223 (8th Cir. 1968). The majority of courts recognize that “substantially contribute” relates not to “proximate cause” but to the substantial factor test which is generally regarded as broader than the “but for” formula used in proximate cause situations. See, e. g., Dominion Construction, Inc. v. First Nat. Bank of Maryland, 271 Md. 154, 315 A.2d 69 (1974); Gast v. Am. Cas. Co. of Reading, Pa., supra.

In Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192 (8th Cir. 1974), the court examined the question of how a plaintiff’s negligence must relate to the “unauthorized signature.” In Bagby, a stockbroker handled stock transactions on an open account with an attorney who was purportedly acting for a certain client in starting and maintaining the account. When the stockbroker sold some stock for the attorney’s client and in payment drew some checks made payable to the client, it mailed the checks to the supposed attorney, in accordance with standard business practices. The attorney forged the endorsement and cashed the checks at a bank. The court found that although the stockbroker was negligent in having the checks issued in the first place, the negligence did not relate to the forgery itself and therefore § 3-406 did not apply.

The Bagby case is somewhat clearer than ours since there delivery to a third party attorney once the check was issued, was in accordance with normal business practices and so was automatically not deemed negligent. But Bagby does show that a drawer’s “negligence” in having checks issued at the prompting of a fraudulent party does not substantially contribute to a forgery. The U.C.C. seems to foresee a more direct type of contribution to a forgery. The one example of contribution to forgery of a signature of another that is given in Official Comment 7 of § 3-406 is also a clearer sort of contribution: mailing a check to a wrong person having the same name as the payee. We do not think that plaintiff’s actions in trusting Londe and giving Londe a check which plaintiff had made payable to International Harvester could be said to have substantially contributed to Londe’s forgery. Plaintiff did nothing to put Londe in good position to commit a possible forgery, nor to give Londe any direct aid at all in forging the endorsement.

Furthermore, we conclude that the third element of § 3-406 is not met as a matter of law; the payor/drawee Lindell Trust did not pay the instrument “in accordance with the reasonable commercial standards” of its business. The Treasurer’s check was payable to the order of “International Harvester.” The forged endorsement read:

"Pay to the order of Michael Londe Roedel Brothers Internation (sic)
Harvester Trucks (signed) Carle [sic] Roedel."

Even though the payor received the check after it had been endorsed by Continental, it was still readily apparent that the first endorsement was by someone other than the named payee. James Roedel at Roedel Brothers refused to accept the check because the check was not made out to them. When he consulted his own bank, they advised him not to accept the check for the same reason. Even the president of Continental told the cashier who first accepted the endorsement, that he made an error in judgment. These facte support our conclusion that neither banking institution adhered to reasonable commercial standards in accepting a check with such a patently irregular endorsement.

One case which is factually similar and instructs us as to commercial standards of banks regarding endorsements is a Louisiana case, Trouard v. First. Nat. Bank of Lake Charles, 247 So.2d 607 (La.App.1971). Since it is a Louisiana case, it was decided on the basis of the Negotiable Instruments Law rather than the U.C.C. Nevertheless, we find it helpful. In Trouard, a money order was payable to the order of “Chinchilla Producers Association, Inc.” and the endorsement was made by “Chinchilla Producers Association of Texas.” The court said it was the duty of both the collecting and the drawee bank to require endorsement of the exact payee specified and concluded that the drawee was liable for negligence: “The bank was in a position to require the endorsement to be specifically made as it appeared on the face of the instrument.” Trouard, supra, at p. 610. This case supports our determination that neither Lindell Trust nor Continental met commercial standards by paying over the irregular endorsement of this Treasurer’s check.

The cases which deal with the “reasonable commercial standards” provision of § 3-406 do not discuss the need for an endorsement to be in exactly the same form as the payee specified on the face of the check. In one case, the court found that a bank had complied with reasonable commercial standards under § 3 — 406, noting that there was nothing on the face of the forged instrument to arouse the suspicion of the bank, nor was there any other irregularity in the transaction. The check was deposited by the ostensible payee who freely identified himself. Dominion Construction Inc. v. First Nat. Bank of Maryland, supra, at p. 76. This is vastly different from our case where there was an obvious irregularity on the first endorsement which should have aroused the suspicion of Lindell Trust.

One California case discusses the “reasonable commercial standards” provision of § 3-406 in some detail. In Cooper v. Union Bank, 9 Cal.3d 123,107 Cal.Rptr. 1, 507 P.2d 609 (1973), an employee had forged his employer’s signature on some endorsements. The court found that the employer’s negligence was a bar to a conversion suit against the payor bank under § 3 — 406 since the record supported a finding that the bank acted in accordance with reasonable commercial standards:

“Nothing on the face of the instruments would have led the bank to suspect they were irregular in any way. A single branch of a large bank, as the testimony indicated, may handle several thousand instruments bearing third party indorse-ments in a single day. Considering this burden, it would be commercially unreasonable to expect payor banks to undertake foolproof efforts to verify ostensibly valid indorsements.” (Op. cit. at 9 Cal.3d 123,137,107 Cal.Rptr. 1,12, 507 P.2d 609, 621)

Applying the realistic approach of the Cooper case, which recognizes the legitimate concerns of banks for efficiency, we still must conclude on the basis of the facts clearly'set out in the record, that Lindell Trust did not take adequate precautions to disclose this forgery. In the Cooper case, the forgery was established to be so skillful that there was nothing about the check which could have aroused the suspicions of payor bank. In our case, on the other hand, the forged endorsement contained one typographical error, a misspelled name and was clearly not in the name of the named payee. Not only Continental, but also Lindell Trust as the payor, should have refused to accept the check with this endorsement. Lindell Trust’s failure to inquire about the endorsement bars them from asserting the § 3-406 defense.

The second specific U.C.C. defense Lin-dell Trust and Continental contend should have been submitted to the jury is § 3-405(l)(c). This provision says:

An indorsement by any person in the name of a named payee is effective if an agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest. (Emphasis added.)

The defendant’s argument is that the forged endorsement by Londe is effective against plaintiff because Londe was plaintiff’s agent for the purpose of buying ambulances with the check and that Londe supplied the name of International Harvester intending that payee to have no interest.

We find that § 3-405(l)(c) does' not apply to this situation, but not for all the reasons plaintiff argues. It does not matter that International Harvester was not “fictitious” as plaintiff contends. The U.C.C. draftsmen carefully avoided calling such a supplied name a “fictitious payee” as the precode law did. Official Comment 1, § 3-405. Neither does it matter that this situation is not the typical “padded payroll” case which the section was specifically meant to cover. Official Comment 4, § 3-405. The use of the word “supplied” renders the section broad enough to cover situations other than padded payroll cases. New Amsterdam Cas. Co. v. First Pa. Banking & Trust Co., 451 F.2d 892 (3d Cir. 1971). Thirdly, it is not necessarily determinative that plaintiff is not technically the “drawer” as specified in the statute. Since this, was a Treasurer’s check, Lindell Trust was both the drawer and drawee. Jerman, supra, p. 92. But the intent of the nominal drawer is not determinative in deciding if the check was payable to someone not intended to have an interest. It is the intent of the purchaser’s agent which controls, since the issuing bank has no personal interest in the identifying of the named payee. United States Nat. Bank v. Bank of America, 264 Cal.App.2d 871, 71 Cal.Rptr. 6, 7 (1968). Finally, we agree with defendants that there is at least a question of fact as to whether Londe was the agent of plaintiff as required by § 3-405. Phoenix Die Casting Co. v. Manufacturers & Traders Trust Co., 50 Misc.2d 152, 269 N.Y.S.2d 890 (1966). Also see Jerman, supra, where agency was found in a very similar situation.

The only reason we decide that § 3-405(l)(c) does not apply here as a matter of law is because the forged endorsement was not “in the name of a named payee” as specified by the statute. The Treasurer’s check was made payable to the order of International Harvester. Londe endorsed it in the name of “Roedel Brothers Internation (sic) Harvester Trucks (signed) Carle Roedel.” In order for § 3-4Q5(l)(c) to apply, the forged endorsement must be in the exact name of the named payee. Travco Corp. v. Citizens Fed. Sav. & Loan Ass’n of Port Huron, 42 Mich.App. 291, 201 N.W.2d 675 (1972).

The third and final specific U.C.C. defense the defendants allege is ratification under § 3 — 404. The relevant portion of this section provides:

“(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; .
“(2) Any unauthorized signature may be ratified for all purposes of this article.”

Defendants contend that the trial court erred in refusing to allow them to amend their pleadings to include this § 3 — 404 defense. They aver that they produced evidence to establish the defense and should have been granted leave to amend their pleadings to conform to this evidence, as they requested under Rule 55.33(b), Mo. Rules of Civil Procedure (1974). We hold that the trial court correctly refused permission to amend since the evidence produced at trial did not establish the existence of a ratification. The evidence did show that plaintiff pursued Londe to recover payments for plaintiff’s losses from the check. Yet this pursuit of Londe can in no way be deemed a “ratification” of the unauthorized endorsement under § 3-404. The statute refers to ratification by the person whose name was forged. Plaintiff cannot “ratify” the unauthorized signature of another. “An unauthorized signature is wholly inoperative under § 3-404 unless the person whose signature it purports to be ratifies it or is precluded from denying it.” (Emphasis added.) Taylor v. Equitable Trust Co., 269 Md. 149, 304 A.2d 838, 842 (1973). See 2 Anderson U.C.C. § 3-404: 7 at p. 923 (1971). We have found no cases and defendants have cited none, where a court has found ratification by anyone other than the person whose signature was forged.

Continental also makes a somewhat related argument based on the common law doctrine of election of remedies. It contends that by pursuing Londe for payment on the $50,000 loan and recovering partial satisfaction, plaintiff elected his remedy and cannot now pursue the bank for recovery on the check. In support of this election of remedies argument, Continental cites the Missouri case of United States Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47 (1937). In that case, an agent of the plaintiff’s assignor “padded the payroll,” forged the endorsements and cashed the checks at defendant bank which charged the employer’s account. The employer then recovered from the plaintiff surety company on its bond covering loss by reason of the dishonesty of an employee. The court held that plaintiff was barred from suing the bank which had paid over the forged endorsement because plaintiff’s assignor had made an election of remedies by recovering on the surety bond for the wrongdoing of the employee. The court said the employer could have demanded payment of his money from the payor bank on the theory that the bank paid out its own money when it paid over the forged endorsements and thus had no right to charge the employer’s account. Or, in the alternative, the court said, the employer could have affirmed the act of the bank in paying out the money and pursued the employee on the grounds that he had. the employer’s money. The employer had pursued the money in the agent’s hand and ultimately recovered from the agent’s bondsman. The court found this to be an election between two inconsistent remedies which barred a suit against the payor bank.

There are several ways to distinguish the United Fidelity & Guaranty case from the instant case. For one thing, plaintiff did not recover full satisfaction for his losses from Londe, as the doctrine of election of remedies seems to require. United States Fidelity & Guaranty Co., supra, at p. 49 and Boserine v. Md. Cas. Co., 112 F.2d 409, 416 (8th Cir. 1940). It should be remembered that the purpose of the doctrine of election of remedies is to prevent double redress for a single wrong. Twin City Fed. Sav. & Loan Ass’n v. Trans-america Ins. Co., 491 F.2d 1122, 1125 (8th Cir. 1974). Secondly, it is not established that plaintiff pursued Londe (as opposed to Lindell Trust) with full knowledge of all the pertinent facts which would enable him to make an intelligent choice. Twin City Fed. Sav. & Loan Ass’n, supra, at p. 1125; United States Fidelity & Guaranty, supra, at p. 49; Autocar Sales & Service Co. v. Holscher, 11 S.W.2d 1072 (Mo.App.1928).

Finally, we feel that the doctrine of election of remedies should not apply because the two remedies pursued by plaintiff — recovery from Londe and recovery from the payor bank — should not be viewed as inconsistent remedies as they were in United States Fidelity & Guaranty, supra. The court in United States Fidelity & Guaranty felt that pursuit of the forger and pursuit of the payor bank were inconsistent for the following reason:

“[E]ither defendant [payor bank] had [the employer’s] money and was liable to it for money had and received or [the forger] had it and was liable for money had and received. Obviously, both could not have the same money at the same time.” (Op. cit. at p. 49).

Thus, the court’s reasoning in that case can probably be explained by the fact that the suit was for money had and received. In the instant case we are not dealing with a suit for money had and received. We are dealing with contract causes of action and the U.C.C. which makes it clear that a bank has contractual liabilities and liabilities on negotiable instruments, regardless of any causes of action a bank customer might have against third parties. We do not see how seeking recovery from Londe on their ambulance purchase contract or on Londe’s bad check could be deemed “inconsistent” with seeking recovery from Lindell Trust on their contract on the cashier’s check. Lindell Trust contracted with purchaser plaintiff that the Treasurer’s check would be paid to the named payee. Since the check was paid on a forged endorsement, Lindell Trust has an “undoubted liability to the purchaser” of the check. Jerman, supra, at p. 92. We see no need to trace the proceeds of the Treasurer’s check into the hands of either Londe or the payor. Plaintiff has consistent causes of action against both. Since the recovery theories are consistent, the suit against Lindell Trust is not barred by the election of remedies doctrine even though partial recovery was received from Londe. Twin Cities Fed. Sav. & Loan Ass’n, supra, at p. 1125.

Since we have rejected all of the defenses jointly asserted by the defendants and have concluded that Lindell Trust is liable for paying out the proceeds of the Treasurer’s check over the forged endorsement, we must now establish the amount of the liability. This issue relates to the first contention made at the rehearing.

In our earlier opinion, we found that the liability of Lindell Trust (and ultimately Continental) should be reduced because plaintiff had received a partial recovery of his losses from Londe, the forger. Plaintiff argued at the rehearing that we exceeded our authority by ordering the $50,000 judgment reduced to $14,500, because defendants did not seek such relief on appeal. This contention is without foundation. Both defendants argued strenuously in their appellate briefs that they could not be liable for $50,000 on the check when plaintiff had already recovered $35,500 of their loss from Londe. Lindell Trust made the following statement in its brief: “To allow Twellman to recover the face amount of the Treasurer’s check, plus the $35,500.00 which he collected from Londe would constitute unjust enrichment and would be a windfall to the plaintiff.” It is true that both defendants made objection to the trial court’s decision to take the issue of amount of damages away from the jury, but Continental submitted in its statement of conclusion “that the judgment below should be reversed in part and remanded with instructions to reduce the amount of the judgment to $14,500 plus interest.” Thus, it is clear that the relief we granted was requested.

As for the substance of this damage issue, we determine that the reduction of the judgment as a matter of law is warranted. The evidence clearly shows that Londe made three payments to plaintiff between December 28 and January 20, which totaled $35,500. Immediately after each payment was made, plaintiff took those payments to Mr. Rieman at Lindell Trust to apply toward his outstanding loans. Plaintiff testified that he did not tell Rieman to which of his $121,000 in notes to apply the payments. The $121,000 total consisted of the $50,000 note of December 15 which was undertaken to cover the Treasurer’s check plus a $71,000 note of December 3, which had been undertaken in connection with a different business transaction, also involving Londe. Mr. Rieman of Lindell Trust testified that he applied the three payments totaling $35,500 to the $50,000 note of December 15, because he assumed plaintiff had been trying to get payment for the December 17 bad check that was intended to cover that note. One of the receipts given, by Lindell Trust for the three payments expressly stated that the money had been applied to the December 15 note. The bank’s liability ledger showed that all three payments had been applied to the December 15 note. Lindell Trust sent plaintiff a debit memorandum which informed plaintiff that the $50,000 note had been reduced to $14,500. Lindell Trust was perfectly justified in making these applications to the December 15 note. If a debtor owes a creditor on more than one obligation and fails to specify the account to which a payment is to be applied, then the creditor may make the application. Title Ins. Corp. of St. Louis v. United States, 432 S.W.2d 787, 791 (Mo. App.1968); Madison v. Dodson, 412 S.W.2d 552, 556 (Mo.App.1967); Herrman v. Daffin, 302 S.W.2d 313, 315 (Mo.App.1957). The uncontroverted evidence shows that plaintiff’s loss on the December 15 note had been reduced to $14,500 because of the payments received from Londe.

The facts here are clearly distinguishable from those in Tubin v. Rabin, 382 F.Supp. 193 (N.D.Tex.1974), supplemental opinion at 389 F.Supp. 787 (N.D.Tex.1974). In the Tu-bin supplemental opinion, the court discussed the issue of partial recovery. The payee had specially endorsed a cashier’s check to a man named Wyche and to a company. The collecting bank cashed the check over the forged signature of Wyche. The court refused to reduce the liability of the collecting bank by an amount which Wyche had recovered from the company, which was involved with the forgeries. The court held that § 3-404(1) did not apply. Specifically, the money recovered by Wyche was found to relate to a separate, special arrangement between Wyche and the company. There was no relationship between the amount recovered by Wyche and the amount of the cashier’s check. In our case, as discussed above, the evidence does show such a relationship between the $35,500 recovered from Londe and the $50,000 Treasurer’s check.

However, plaintiff maintains that the judgment cannot be reduced, due to the provisions of § 3-419 of the Uniform Commercial Code. The applicability of this section was argued by the parties at the rehearing. The relevant parts of § 3-419 read as follows:

“(1) An instrument is converted when . (c) it is paid on a forged endorsement.
“(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.”

Plaintiff argues that this statute means that Lindell Trust, the drawee in this case, is absolutely liable for the face amount of the instrument, i. e., $50,000, and that this amount cannot be reduced by the $35,500 repaid to plaintiff by the forger. We reject this argument.

First of all, it is not at all clear that the language of § 4r-319(2) precludes the kind of set-off that is suggested by the facts of this case. Official Comment 4 of § 3-419 offers some clarification of the “face amount” language in the statute:

“Evidence is admissible to show that for any reason such as insolvency or the existence of a defense the obligation is in fact worth less, or even that it is without value. In the case of the drawee, however, the presumption is replaced by a rule of absolute liability.”

This Comment indicates that the statute was meant to prevent a defendant drawee from going beyond the face of the instrument in order to limit its liability. Any factors such as insolvency or other defenses such as inadequate consideration which would affect the value of the instrument, are not to be considered. This is not the situation in the present case. The “measure” of Lindell Trust’s liability is the $50,-000 face amount of the instrument. Defendants do not argue that a Treasurer’s check was, in fact, worth less due to any external factors. They aré merely pointing out that plaintiff has already been partially reimbursed for his losses on the instrument. We do not believe that the statute should be read so narrowly as to prevent a set-off in the amount already recovered by plaintiff.

An analogous case is Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970). In that case, the defendant drawee bank had paid checks over the forged endorsements of the payees. The persons whose names were forged had ultimately been paid the money due them from the proceeds of the checks by the forgers. The Starkey court said it did not believe the legislators intended to hold a drawee liable where the money actually reached the parties intended by the drawer. Similarly, we do not believe the draftsmen of the U.C.C. intended by the language of § 3-419(2) to hold a payor bank liable for the full amount of a check where the remit-ter has recovered a partial reimbursement from the forger.

However, it is probably not necessary to construe the conversion statute at all. We believe that plaintiff is not a proper party to sue Lindell Trust for conversion, and therefore § 3-419 is inapplicable. The parties argued this issue at the rehearing. The Uniform Commercial Code is silent as to who may sue for conversion under § 3-419. But the Official Comments to the section make repeated references to “holders” and indicate that a holder is the intended proper party to sue. For example, Comment 2 declares that “[a] negotiable instrument is the property of the holder.” This declaration should be read in conjunction with Comment 3 which states that payment on a forged endorsement “is an exercise of dominion and control over the instrument inconsistent with the rights of the owner, and results in liability for conversion.” (Emphasis added.) We believe that the “owner” of a negotiable instrument is the holder or payee, who could properly sue for conversion. Plaintiff is the remitter or purchaser of the Treasurer’s check in issue here. He is in the place of the drawer, having directed Lindell Trust to draw the check. Plaintiff had no right to possession at the time of conversion. A case which offers some guidance on this point is an early U.C.C. case, Stone & Webster Engineering Corp. v. First Nat. Bank & Trust Co. of Greenfield, 345 Mass. 1, 184 N.E.2d 358 (1962). In Stone & Webster, it was held that a drawer of an ordinary check was not a proper party to sue a collecting bank for conversion for having paid over a forged endorsement. Although the suit was against a collecting bank, the reasoning of the Stone & Webster court is helpful. The court determined that the drawer should sue its drawee under Article Four, and the drawee could advance U.C.C. defenses against the drawer and then pursue the collecting bank on a breach of warranty theory. In so holding, the court determined that under the U.C.C. the holder is the owner of the instrument and is entitled to sue for conversion. The plaintiff drawer could not sue for conversion since he had no valuable rights in the check:

“Here the plaintiff drawer of the checks, which were never delivered to the payee . had no valuable rights in them. Since, as we have seen, it did not have the right of a payee or subsequent holder to present them to the drawee for payment, the value of its rights was limited to the physical paper on which they were written, and was not measured by their payable amounts. (Citations omitted).” Stone & Webster Engineering Corp.- at 184 N.E.2d 358, 362.

The court later noted that “[n]o right of ownership in the plaintiff is apparent,” and therefore the demurrer to the conversion count was correctly sustained. Stone & Webster Engineering Corp., supra, at 358, 364.

We agree with the above reasoning. A drawer, or here, the remitter who has directed the drawer, is not a proper party to sue for conversion. In Missouri, in order to maintain a suit for conversion, the plaintiff must have title to, or a right of property in, and a right to the immediate possession of the property concerned at the time of conversion. Osborn v. Chandeysson Elec. Co., 248 S.W.2d 657, 663 (Mo.1952); Kessler v. Reed, 481 S.W.2d 559, 562 (Mo. App.1972). Thus, a holder or a party such as a payee would be a proper party to sue for conversion. Plaintiff, the remitter, had no valuable property right or right of possession of the Treasurer’s check at the time of conversion. Therefore, he is not entitled to sue for conversion. See Cooper v. Commonwealth Trust Co., 142 Mo.App. 610, 122 S.W. 791 (1909).

Plaintiff is entitled to sue Lindell Trust for breach of contract, rather than on a conversion theory. When it paid over a forged endorsement, Lindell Trust breached its promise to the purchaser (plaintiff) that it would pay the $50,000 to the named payee on presentation of the check. A case which is directly on point is Jerman v. Bank of America Nat. Trust & Sav. Ass’n, 7 Cal. App.3d 882, 87 Cal.Rptr. 88 (1970). The Jerman court allowed the purchaser of a cashier’s check to recover against the payor bank when it paid over a forged endorsement. The majority opinion cites the conversion statute, § 3-419 but the language of the decision clearly appears to be concerned with breach of contract. Associate Justice Fleming in his concurring opinion specifically points out that the suit is for breach of contract rather than for conversion and makes the following comment:

“Since the right of the purchaser to recover her consideration is based on contract she has no need to rely on tort claims for conversion, either her own or those of the payees. Hence defenses available in conversion and the measure of damages for such claims are immaterial.” Jerman, concurring opinion of Associate Justice Fleming at 7 Cal.App.3d 882, 891, 87 Cal.Rptr. 88, 95.

We agree with this analysis and conclude that purchaser plaintiff cannot sue for conversion under § 3-419.

Plaintiff relies on Tubin v. Rabin, supra, where the owner of a cashier’s check was allowed to recover from a collecting bank which paid over a forged endorsement. In Tubin, plaintiff had his attorney purchase a cashier’s check for him. Under plaintiff’s direction, the attorney was made the payee. The attorney specially endorsed the check to the order of a company and a third party. The third party’s signature was forged. The Tubin court concluded that plaintiff was the rightful owner of the check and could sue in conversion. However, it is important to note that the plaintiff’s attorney/agent was the named payee whose special endorsement was not properly observed. In our case, the payee (who may sue for conversion) was not the agent of the purchaser. Furthermore, we do not agree with the Tubin court that § 3-419(1) states the principle of “conversion on a contract.” The court clouds the clear distinction between tort and contract. As Official Comment 2 of § 3-419 states, “[t]he action is not on the instrument, but in tort for its conversion.”

As we have determined above, the purchaser of a Treasurer’s check is not a proper party to sue for the tort of conversion. His suit is for breach of contract and he may not recover more than his losses on the Treasurer’s check, i. e., $14,500. See Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo.1970); Dingman v. Elizabeth Arden Sales Corp., 284 S.W.2d 16, 18 (Mo.App.1955).

The last point we must consider is the question of Continental’s liability as collecting bank to Lindell Trust as the payor bank whose liability to plaintiff has been established at $14,500. Continental accepted the Treasurer’s check, depositing $50,000 in Londe’s business account and made its own endorsement before forwarding the cheek to Lindell Trust:

“PAY ANY BANK, P.E.G. CONTINENTAL BANK & TRUST CO. RICHMOND HEIGHTS, MO.”

First, we note that the fact that a Treasurer’s check drawn by the payor bank is involved does not change the colléc-ting bank’s liability. Thieme v. Seattle-First Nat. Bank, 7 Wash.App. 845, 502 P.2d 1240, 1244 (1972); Jerman, supra, at 87 Cal.Rptr. 88, 91. Secondly, the initials “P.E.G.” which stand for “Prior Endorsements Guaranteed” in banking parlance are no longer needed and add nothing to the liability of a collecting bank under the U.C.C., Society Nat. Bank of Cleveland v. Capital Nat. Bank, 30 Ohio App.2d 1, 281 N.E.2d 563, 566 (1972). As a collecting bank which accepted the Treasurer’s check, Continental automatically gave warranties under the U.C.C. Specifically, Continental warranted to Lindell Trust that it had good title to the instrument and that all signatures on the instrument were genuine or authorized. § 3-417(1)(a); § 3-417(2)(a) and (b), § 4-207(1)(a), § 4-207(2)(a) and (b). See Society Nat. Bank, supra, at p. 565; Myers v. First Nat. Bank of Scotia, 42 A.D.2d 657, 345 N.Y.S.2d 204 (1973) and Mississippi Bank & Trust Co. v. County Supplies & Diesel Service, Inc., 253 So.2d 828 (S.Ct.Miss.1971).

Continental, however, argues that it has a defense to its liability under § 4-207(4), which should have been submitted to the jury. The purported defense reads as follows:

“(4) Unless a claim for breach of warranty under this section is made within a reasonable time after the person claiming learns of the breach, the person liable is discharged to the extent of any loss caused by the delay in making claim.”

Continental contends that Lindell Trust failed to notify Continental within a reasonable time after learning of the breach and Continental was injured by the delay. After examining the dates involved, we conclude that this contention is without merit.

It is unclear who first questioned the authenticity of the Roedel endorsement— plaintiff testified that Mr. Rieman at Lin-dell Trust first brought up the subject and indicated that there might be a problem with the endorsement sometime during the week of December 20. Mr. Rieman, on the other hand, said the first indication he had that the endorsement might be a forgery was when plaintiff asked him an apparently hypothetical question concerning banking procedures on forged endorsements. At that time, Rieman told him the bank would need an affidavit of forgery. Rieman said he did not know anything specific about problems with the Roedel endorsement until plaintiff called him on February 5. At that time, plaintiff told Rieman the endorsement was definitely a forgery and that he had obtained an affidavit from Carl Roedel to that effect. Rieman notified Continental on that day — February 5 — that Lindell Trust was returning the check because of a forged endorsement. The first affidavit of forgery dated February 2 was deemed inadequate by Lindell Trust, so plaintiff obtained a second affidavit on Lin-dell Trust’s own form on February 7. Rie-man sent written notification of the forgery and a copy of the affidavit to the Federal Reserve on February 7 to be forwarded to Continental. Rieman testified that Lindell Trust needed the written affidavit of forgery because it could not act on someone’s oral word.

This evidence establishes that Lin-dell Trust was first informed of the existence of a written affidavit of forgery on February 2 at the earliest. They gave Continental oral notice of the forgery and their potential claim on February 5. They forwarded the affidavit which they deemed adequate on the same day it was signed, i. e., February 7. We hold as a matter of law that Lindell Trust notified Continental within a reasonable time after Lindell Trust learned of the breach within the meaning of § 4-207(4). Section 4-207(4) cannot be a bar when there was so little delay between the time an affidavit of forgery was received by the payor and the time the collecting bank was notified. Birmingham Trust Nat. Bank v. Central Bank & Trust Co., 49 Ala.App. 630, 275 So.2d 148 (1973), cert. den., 290 Ala. 362, 275 So.2d 153 (1973). Therefore, Continental is liable to Lindell Trust for breach of warranty in the amount of the judgment in favor of plaintiff against Lindell Trust, i. e., $14,500.00.

Judgment for plaintiff against Lindell Trust and for Lindell Trust against Continental affirmed. Cause is remanded with instructions to the trial court to reduce the amount of both judgments to $14,500 plus interest.

SIMEONE, P. J., and GUNN, JJ., concur.

      . All citations to the U.C.C. are found in Ch. 400, RSMo 1969.

      . There is no contention that Lindell Trust did not pay with the requisite “good faith’ specified in § 3-406.

      . United States Nat. Bank v. Bank of America and Phoenix Die Casting Co. v. Manufacturers & Traders Trust Co., were both.decided under the “fictitious payee” rule, the predecessor of § 3-405.

      . In Travco Corp., one check was made payable to “L & B. Dist., c/o F. & B. Mitchell” and was endorsed in the name of “F. Mitchell” and “B. Mitchell.” A second check was payable to “L. & B. Distr. Sales, 19704 West Seven Mile Road, Detroit, Michigan 48219” and was endorsed “For deposit only F. Mitchell.” It was held that neither check was endorsed “in the named of a named payee.”

      . This court distinguished United States Fidelity & Guaranty Co., in part on the same grounds in Aetna Cas. & Surety Co. v. Lin-dell Trust Co., 348 S.W.2d 558, 566 (Mo. App.1961).

      . The term is defined in § 1-201(20): “ ‘Holder’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or endorsed to him or to his order or to bearer or in blank.” It should be noted that a payee in possession of a check would be a holder.

      . The Stone & Webster Engineering Corp. case involved both a cause of action for conversion and a cause of action for money had and received which was based on the waiver of the tort of conversion.

      . Section 4-207 which deals precisely with a collecting bank’s liability is more specific than the Art. 3 warranties. Therefore, the defense found in § 4-207(4) which is not found in § 3-417 should govern here, if it in fact exists. See 2 Anderson, § 3-417: 3 at p. 1020 (1971); § 4-102.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Jackie Lynn WOOD, Appellant.
    No. 10105.
    Missouri Court of Appeals, Springfield District.
    Feb. 17, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied March 4, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Ralph R. Bloodworth, Jr., Poplar Bluff, for appellant.
   PER CURIAM.

Appellant Jackie Lynn Wood was found guilty by a Wayne County jury on April 18, 1975, of receiving stolen property [§ 560.-270, RSMo 1969].

Appellant’s motion for new trial was filed April 25, 1975, and overruled July 14, 1975.

The transcript filed herein does not show appellant was afforded allocution or judgment and sentence rendered and pronounced after the motion for new trial was overruled. Rule 27.09, V.A.M.R.

This appeal is premature and dismissed. The cause is remanded to the trial court for allocution, judgment and sentence. State v. Rippee, 495 S.W.2d 462 (Mo.App.1973).

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Don GIBSON, Plaintiff-Appellant, v. Roy GIBSON and Mabel Gibson, Defendants-Respondents.
    No. 36631.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 17, 1976.

      Roberts & Roberts, Geoffrey T. Pratte, Raymond R. Roberts, Farmington, for plaintiff-appellant.
    Dearing, Richeson, Roberts & Wegmann, Nicholas G. Gasaway, Hillsboro, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Suit in equity to establish a constructive trust in real estate in St. Francois County. Plaintiff is Don Gibson. Defendants are plaintiff’s father Roy and plaintiff’s stepmother Mabel Gibson. The circuit court denied relief. Plaintiff appeals on the principal ground that the court erred when at the close of the evidence for plaintiff the court decided the case for defendants; that sufficient grounds for the imposition of a constructive trust were proven by cogent and convincing evidence; that the ruling was against the clear weight of the evidence and constituted an abuse of discretion.

We will refer to plaintiff as “son”; to defendant Roy Gibson as “father”; to his natural mother as “mother,” and to defendant Mabel Gibson as “stepmother.”

Son testified as follows: Father was in the chicken business as far back as son could remember, on land son knew was leased by father from St. Joe Lead Company near Elvins. When son was released from Navy service in 1944 he announced to father and mother that he intended to buy a farm and go into the poultry business. The parents told son to locate on the part of their leased land on the other side of the highway and the land would be “his.” Son, relying upon this, established his home and business on that land. Parents loaned son money; advanced feed to him on credit and carried the feed bill. From 1949 to 1953 son bought baby chicks from father. Father cosigned a $3,600 note at the Bank of Irondale for son, and father eventually paid the balance due on the note, which son was “sure” was $1,600. On another occasion in the 1950s father loaned son $1,800, all but $800 of which son repaid. Son received other loans from father from time to time.

Parents and son entered into no sublease or other writing pertaining to the land. No conveyance was made by parents to son of any interest therein. Son paid for his purchases from parents from time to time and operated his business for several years, until competition and loss of several major accounts forced him to quit. Son did not pay parents rent on the land, nor did son pay taxes on the land at any time. From time to time while in business son erected brooder houses and other buildings of various kinds the total cost of which he estimated at between $19,000 and $20,000. Son installed roads, electricity and water lines. In 1951 father and mother purchased from St. Joe Lead Company the land which they had previously leased from that company. The deed created a tenancy by the entire-ties in the parents. Son paid no part of the purchase price. During the 1950s four of the buildings were sold by son and dismantled. Son kept the proceeds. Mother died in 1955. Father married stepmother Mabel in 1957. From 1945 to 1959 various members of the family referred to the property as “his [the son’s] side of the highway.” Son closed his poultry business in 1959; went into the trucking business, and moved to California. Father and son began having trouble in the 1950s. Son testified that his father had threatened him; that on one occasion father came to son’s house with a loaded shotgun and “stuck it in [his] door.” In 1959 son still owed $1,600 “or probably less” than $1,600 on the largest building. Son, unable to pay, gave father $300 to pay on the debt, asked father to pay the balance, and told father that for so doing father could use the buildings. Father made no statement at that time as to whose property it was. Father thereafter rented the building, collected the rent and made apartments out of another of the buildings. After leaving the property in 1959 son made no payments on the cost of improvements thereafter made by father on the buildings. Son visited father and stepmother in 1963 and 1966 and thereafter at approximately six-month intervals. On these occasions son stayed at a motel and not at the home of father and stepmother because stepmother “offered [him] no hospitality.” On one trip she said father would shoot son if father saw him. Son identified mother’s unprobated will and read paragraph 3 purporting to devise the land in question to son and cancelling all debts owed by son.

Son’s sister Melba could not recall whether in 1944 her parents stated that the land was to be son’s, but she testified that the land across the highway was referred to as “Don’s side of the highway.” Sister Gloria Stricklin testified that when son left the Navy parents told son he could have the land on the other side of the highway; that the land was referred to as “Don’s side of the road”; that she bought ground from father on “Don’s side” of the highway and lived there 14 years. She knew some land on Don’s side had been sold to third parties, but had not told Don because she “figured” Don’s land was “where the buildings was” and not the whole tract.

At the close of plaintiff’s evidence the judge stated that it takes clear, cogent and convincing proof to establish a constructive trust; that “there just isn’t that type of proof to sustain it made by the Plaintiff,” and that any evidence of a constructive trust was destroyed by sister Gloria’s testimony that she believed the land belonging to Don was the portion where the buildings were located, and the court entered judgment for defendants.

Citing March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969) son asserts that a court of equity will use the machinery of a trust to provide a remedy in cases of actual or constructive fraud, to prevent unjust enrichment, or to rectify the result of a violation of confidence reposed in another. Son does not contend that his parents or his stepmother were guilty of actual or constructive fraud. He relies upon the existence of a confidential relationship between him and his parents, breached'“when [his] father deeded away part of the land upon which [he] had erected the buildings,” and contends that this is a case of unjust enrichment. Our review is limited to a consideration of the case upon the trial theories adopted by plaintiff. Lee v. Smith, 484 S.W.2d 38, 41 (Mo.App.1972).

The property leased to parents and later acquired by them by deed of conveyance consisted of a tract of approximately 14 acres, bisected by Highway No. 32. Father and mother lived on the east side of the highway. Son’s use was confined to that part of the tract lying on the west side. Strangely, son filed suit to impress a trust not only on the west portion he occupied but on the entire 14 acres, including the east part where father and stepmother lived, although son never intended to claim the east part. Son’s uncertainty as to the nature and extent of his claim is further illustrated by the fact that he pleaded a cause of action for an express trust in Count I, a position abandoned by his counsel in opening statement. In Count II he sought to impress a constructive trust on the entire 14-acre tract, but at trial confined his claim to a constructive trust in the land on the west side, further restricting his pretension to that portion of the west side not previously conveyed to third party purchasers from defendants. Another self-imposed limitation of the interest claimed was son’s concession of a life interest to his father. Son originally prayed for an accounting of rents and profits from 1957 to date but the accounting prayer was abandoned at trial. Son’s witness Gloria Stricklin, called to corroborate his testimony that parents always acknowledged he was entitled to the land west of the highway, threw further doubt on the extent of son’s claim by disclosing that she considered his interest confined to the land on which the buildings were erected and that it did not include all remaining unconveyed land lying west of the highway. Other questions arise to becloud the issue. Son claims it was not until 1973 that he learned that his father treated the land on the west side as otherwise than the property of son. This assertion cannot be reconciled with the fact, of which son must have been aware for many years, that as early as 1953 parents conveyed a lot on the west side to his sister Gloria Stricklin and her husband, who built a house and lived there for 14 years. The land records show that prior to that conveyance parents conveyed another part of that tract to Melvin Meador and wife. Yet son made no effort to investigate the records and take action to vindicate his supposed rights for nearly 25 years. Long delay in making a claim to a constructive trust militates against a finding of clear and convincing evidence. Hendrickson v. Syverson, 82 N.W.2d 827 (N.D.1957). Son brought this action nearly 20 years after his mother’s death, 17 years after his father’s remarriage and 10 years after his father suffered a stroke.

Son’s clearest characterization of the 1944 “agreement” between son and parents is his testimony that his parents “ * * * said there wouldn’t be any need for me to buy a farm; that I could locate my buildings on the other side of the highway and the highway was to be mine, or the property was to be mine.” Son’s most confused version of his claim is found in this exchange: “Q And is what you are asking the Judge for, as I understand you today, is for the property on the [west] side of the highway? A Well, in the event I, I don’t know if I either I’m entitled to the property or does anyone else.” At best his testimony, and that of his sisters, is inconclusive and lacks specificity. Son did not testify that parents promised to convey the land to him by deed but rather that they said the land would be “his.” His to use or his to hold in fee simple? His temporarily on leased land, to get started in business, or his to own outright forever? This testimony is questionable in light of the fact that in 1944, when the “agreement” is alleged to have been made, parents did not own the land but held only a leasehold interest, and therefore were in no position to invest title to a part of it in their son. The sisters’ testimony that the land was referred to through the years as “Don’s side of the highway” is equally susceptible of differing interpretations. Did “Don’s side” refer to place, location and identification of the land or to ownership? Either conclusion would be equally logical. Son’s contention that in effect the title passed to him in 1944 is effectively rebutted by the fact that apparently his mother did not consider conveyance of title or obligation to convey title to son in 1944 a fait accompli, for in her (un-probated) will she purported to devise “all the land that I own across the west side of the Highway 25” to son Don. Furthermore, while son exercised some of the acts normally incident to a claim of ownership of the land, his failure to pay taxes does not bespeak the conduct of one who claims to own land. Leaving the land, leaving father to pay debts son owed on the buildings, acquiescing in father collecting the rents and improving and managing the property, looks more like abandonment of claim to the land than the acts of a person asserting ownership. Finally, the hostility that developed between father and son and the friction evident as between plaintiff and stepmother provide a different motive for this intra-family litigation than that of simple vindication of ownership rights. The trial judge characterized this action as “just the age-old feud between children and the step-mother trying to evade the consequences of a later marriage.”

The circuit court properly stated the burden of proof as resting on son to establish a constructive trust by clear, cogent and convincing evidence. Etheridge v. Hammer, 450 S.W.2d 207, 210[1] (Mo.1970). Our review of the law and evidence leads us to the same conclusion reached by the circuit court, namely, that son’s evidence did not rise to that character of proof.

On the claim of breach of a confidential relationship between son and parents the record lacks the necessary supporting evidence. “A confidential relationship is not proved merely by a showing that persons are in ties of blood or family (Beach v. Beach, Mo., 207 S.W.2d 481[6]; Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981, 991[12]; Norton v. Norton, [43 S.W.2d 1024 (Mo.1931)] l. c. 1032[8, 9]) * * *.” Service Life Ins. Co. of Fort Worth v. Davis, 466 S.W.2d 190, 196[5] (Mo.App.1971). “* * [M]ere kinship does not of itself establish a confidential relation. Often relatives * * deal at arms length and act independently and so are held not to have been in a confidential relation.” Bogert, Trusts and Trustees, Second Ed., § 482. As stated in the Service Life case, a confidential relationship is synonymous with a fiduciary relationship, and extends to instances in which a special confidence is reposed on one side and there is resulting domination and influence on the other. Accepting everything son testified to at face value, there is no basis for a finding of a confidential or fiduciary relationship. This is the case of a son coming home from serving his country in time of war, intent on establishing himself in the poultry business, and parents, desiring to ease their son’s entry into business with as little cost to him as possible and to the extent they could afford, offering him land on which to establish himself. Son knew parents had only a leasehold interest in the land and could not effectively offer him any greater interest than the use of the land. Son had no right on the basis of confidential or fiduciary relationship to believe that he would get legal title to the land. In any event there is nothing to suggest that parents had any undue influence over son in the conduct of his affairs, or that they dominated him. That necessary element of a finding of confidential relationship is entirely lacking. While at least in the early years the natural love and affection as between parent and child was evident, there is no evidence that in their business affairs and dealings parents and son did not at all times deal with each other at arms’ length. There was no special reliance by the son upon the word, advice or judgment of parents; no surrendering by him of his independence in making business judgments; no automatic or habitual manipulation of his actions by them; no position of superiority or domination over the son.

On the claim of unjust enrichment there is insufficient evidence to make a case. Son claims that in reliance upon parents’ offer he expended his own time, labor and money erecting seven buildings at an estimated cost of $19,000 or $20,000 believing the land to be his in accordance with his parents’ statement and that these facts are sufficient in equity to “impose a constructive trust upon property over which someone else has wrongfully assumed control.” Son says the 1944 “agreement” in effect passed title to him to the land to the west, even though the formality of a deed was omitted; that this arrangement was modified in 1959 at which time son “told [his father] he could have the rent for the rest of [his father’s] lifetime,” if father paid the son’s debt, thus entitling father to a life estate in the property to the west. Son’s own evidence, however, indicates that considerable enrichment flowed in the other direction— to him. It demonstrates that father loaned son money on numerous occasions, and that son did not always repay the loans; that father cosigned notes at banks for son’s benefit, and paid these notes when son defaulted; that father assumed and paid $1,300 son owed on the buildings when he left the property; that son contributed nothing to the purchase of the property from the Lead Company in 1951; that thereafter son paid nothing on the taxes assessed against the property; that four of the buildings were dismantled, and sold by son, who retained the proceeds; that son had the use and benefit of the land in question for 14 years, where he conducted a business and kept the profits, without payment of rent to parents. Serious doubt is cast upon son’s testimony that he was not substantially indebted to parents, by sister Melba’s testimony on cross-examination identifying her mother’s handwriting on a paper writing found attached to mother’s will, indicating mother’s wish to cancel a debt Don owed parents in the sum of $10,-600. For son to make a case of unjust enrichment, in view of the financial benefits flowing from parents to son, he had to show by clear, cogent and convincing evidence that on balance he enriched parents more than he was enriched by them. This would require son to show definite and certain amounts spent for improvements, instead of the indefinite testimony he gave, consisting largely of undocumented guesses based on memory of transactions and costs incurred 20 or more years in the past; to reckon with the depreciation factor; to introduce evidence of the amount of the taxes through the years and the percentage of the tax bills attributable to the property on the west side; to show the amount of rent received by father and the reasonable rental value of the property enjoyed by son for 14 years; to show with some degree of certainty the total amount of loans made by father to son and the total amount of repayments actually made by son to father; to account in detail for other financial benefits extended son by father, and otherwise to establish son’s right to claim that after all legitimate setoffs parents or father and stepmother were unjustly enriched. Son’s fragmentary, incomplete and indefinite evidence in this respect is not a sufficient foundation upon which to base a finding of unjust enrichment.

Appellant’s second point is that the court made a faulty inference and misinterpreted the testimony of Gloria Stricklin that she believed Don’s land was only where the buildings were, by stating that this testimony “destroyed” any evidence of a constructive trust. Without engaging in a semantic exercise on the question whether this testimony destroyed son’s case, it clearly adversely affected son’s testimony as to the extent of the acreage he claimed. The court reached the right result, which is not to be set aside by the trial judge’s use of the word in question, whether accurate or inaccurate.

Entertaining substantial doubts as to the existence of the facts upon which appellant depends, and being unwilling to upset a record title of nearly 25 years’ standing on the basis of this insubstantial evidence, we affirm the judgment of the circuit court finding that no constructive trust was proved.

SMITH, C. J., and STOCKARD, Special Judge, concur.


text:
    Samuel B. WESTLAKE, Plaintiff-Appellant, v. John Damian McNAMEE, Defendant-Respondent.
    No. 36404.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 17, 1976.
    Marglous & Marglous, Clayton, for plaintiff-appellant.
    James E. Godfrey, Inc., Samuel T. Vand-over, St. Louis, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

Samuel B. Westlake sued John Damian McNamee for personal injuries and property damages arising out of an automobile collision on September 20, 1972, between the vehicles operated by plaintiff and defendant, based upon negligent failure to keep a lookout, sound a warning and yield the right of way, and excessive speed. McNamee filed a general denial, coupled with an affirmative plea of contributory negligence. The trial jury returned a verdict for defendant.

Westlake appeals from the ensuing judgment against him, posing the single question whether the court erred in its rulings when, during cross-examination of West-lake, counsel for defendant was permitted to elicit from Westlake facts surrounding the occurrence of two other automobile collisions involving Westlake, which occurred in March and July of 1972. Westlake contends that evidence of these other accidents, in which he testified he received no injuries, did not prove or tend to prove, even remotely, any issuable fact, and that under Marrah v. J & R Motor Supply Co., 165 S.W.2d 271 (Mo.App.1942), the admission of the evidence was clearly erroneous and prejudicial. Westlake also contends that this evidence resulted in confusion of the issues and caused him prejudice wholly disproportionate to the value and usefulness of the evidence, citing Conley v. Kaney, 250 S.W.2d 350 (Mo.1952), and complains that reference to these prior accidents was made by defense counsel in closing argument.

Assuming (but neither deciding nor intimating) that it was error to permit cross-examination and argument with respect to the two previous automobile collisions (in which Westlake testified that he suffered no personal injuries), we find no prejudice to the rights of the plaintiff for the reason that the- error complained of touched the issue of damages only, an issue never reached by the jury, which found for McNa-mee on the issue of liability. The issue of liability, i. e., whether McNamee was negligent and whether Westlake was guilty of contributory negligence, a hotly contested issue, was determined against Westlake. We must accept the jury’s verdict on this issue, Gardner v. McGee, 505 S.W.2d 452, 453 (Mo.App.1974), and having done so, it is elementary that the jury never got around to consideration of the other issue, namely, that of damages vel non. Since the cross-examination was offered and received on the issue of damages only, and the evidence related only to that issue and was not offered or considered on the question of liability, the error, if any, in its admission was harmless.

This principle has been applied in various situations, of which Mead v. Grass, 461 S.W.2d 708 (Mo.1971), is an example. In. that case there was a defendant’s verdict in a suit for personal injuries sustained by a 17-year-old male in a motorcycle-automobile collision. The court admitted in evidence a hospital record showing that plaintiff “had a couple of previous motorcycle type accidents which were not serious.” Citing and quoting from Boedeker v. Wright, 312 S.W.2d 829, 833 (Mo.1958), the Supreme Court affirmed the judgment for defendant, pointing out that the claims of error related only to the issue of damages, not liability, and that the jury plainly found against the young man on the essential and

prerequisite issue of liability, so that the jury never reached the issue of damages. In Jensen v. Walker, 496 S.W.2d 317 (Mo. App.1973), there was a verdict for defendant in a wife’s suit for personal injuries and a husband’s action for loss of consortium, and complaint was made that the court erred in refusing to permit the husband to testify as to recent complaints of back pain by wife within the last 30 days prior to trial. The court discounted this claim of error, saying l.c. 320: “Inasmuch as the jury ruled against wife and husband on the issue of liability, the jury did not reach the issue of damages, and wife and husband are not prejudiced by the trial court’s ruling.” And see Gardner v. McGee, 505 S.W.2d 452 (Mo.App.1974), and the cases of Bullock Company, Inc. v. Allen, 493 S.W.2d 5 (Mo. App.1973), and Robinson v. Richardson, 484 S.W.2d 27 (Mo.App.1972), cited therein, applying the same principle.

For these reasons the judgment is affirmed.

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