author: MAUS, Judge.

text:
    James E. BOSWELL, Plaintiff-Appellant, v. C. Don BRINCKMANN, Defendant-Respondent.
    No. 10528.
    Missouri Court of Appeals, Southern District, Division Two.
    April 2, 1979.

      David E. Wilhite, Donnelly, Baldwin & Wilhite, Lebanon, for plaintiff-appellant.
    William Icenogle, Icenogle & Icenogle, Camdenton, for defendant-respondent.
   MAUS, Judge.

This action was brought by the plaintiff to “undo” his purchase of 70 shares in Don’s Boat and Motor Company (Don’s) for $7000. Don’s was a closely held corporation with the defendant holding substantially all of the shares. It engaged in the marina business and plaintiff was a long time customer. He was on a friendly basis with defendant who actively ran the business. The petition is in two counts. In Count I the plaintiff alleged misrepresentation of the financial condition of Don’s and prayed for rescission, the return of the purchase price, interest from the date of the transaction, costs, punitive damages of $10,000 and general relief. In Count II, in the alternative, the plaintiff alleged a subsequent promise to repurchase for $7000 and prayed for judgment for $7000, interest from the demand of repurchase, costs, and general relief. The trial court found the issues on Count I in favor of the plaintiff and decreed rescission and the payment of $7000 upon tender of the endorsed certificate for the shares. The prayer for interest and punitive damages was denied. Count II was dismissed. Plaintiff appeals and asserts error in the denial of interest and punitive damages.

In view of the limited issues presented, only a summary of the evidence is necessary. On December 7, 1967, by letter the defendant offered the 70 shares for $7000. The plaintiff requested a financial statement. Defendant supplied a statement dated December 31, 1966. The statement listed as an asset a note for $25,000 of Lake-land Meat Company (Lakeland), another closely held corporation in which defendant’s father was involved and which was known to be in financial difficulty. When questioned, defendant assured the plaintiff Don’s was then in substantially the same financial condition as shown on the almost year old statement and that defendant would personally pay the Lakeland note. The purchase was completed December 22, 1967.

Later the plaintiff did receive a December 31, 1970, financial statement. This statement showed adverse financial developments, including a reduction in retained earnings from plus $6,534.88 as shown on the December 31, 1966, statement, to a minus $57,989.00 as shown on the 1970 statement. No dividends were paid. Nevertheless, the plaintiff took no action until after the defendant sold all of his stock to a third party corporation on October 12, 1971. He then attempted to sell his stock to the third party corporation with the personal guarantee of the owner. When this was unsuccessful, he later made demand upon the defendant.

Relative to the misrepresentation, the evidence developed that the December 31, 1966, financial statement listed the notes payable indebtedness of Don’s for Lakeland as $25,000 when in fact it was $62,000. The statement did not disclose the fact Don’s had acquired substantially all of the stock of Lakeland and assumed its liabilities. An attempt to revive Lakeland was unsuccessful and it was liquidated and debts paid by Don’s. To the defendant’s credit, upon the sale to the third party corporation, by way of cancellation of indebtedness, defendant and his father contributed approximately $29,000 to the capital of Don’s. At defendant’s instance, the sale contract provided in the event of liquidation of Don’s, the minority shareholders could exchange their shares for preferred stock of the third party corporation or its deferred obligation at 5% interest to purchase such shares for the amount of the original investment.

Concerning punitive damages: Neither party requested and the court did not make findings of fact or a statement of the grounds of its decision. Even though the judgment granted in part and denied in part the relief sought by plaintiff, all fact issues must be considered “as having been found in accordance with the result reached.” Rule 73.01. The judgment will be affirmed if it can be sustained on any reasonable theory supported by the evidence. Corley v. Kiser, 556 S.W.2d 218 (Mo.App.1977).

Nevertheless, the plaintiff argues that the judgment of rescission required a finding of intentional or reckless misrepresentation implying legal malice, and therefore punitive damages must be awarded. (Emphasis ours). We need not decide whether or not punitive damages may be awarded in an action in equity. Nor, need we decide if a purchaser who elects to rescind and does not seek actual damages can ever recover punitive damages. Even assuming the plaintiff established, and the court found, facts upon the basis of which the court could have awarded punitive damages, it does not follow that the court was required to award punitive damages. “[E]ven in a situation where the imposition of punitive damages may be permissible and proper ‘principally as punishment of the wrongdoer and to deter others from committing like torts’ [Carmody, supra, 122 Mo.App. loc. cit. 349, 99 S.W. loc. cit. 498], the granting or withholding thereof must be left wholly to and within the discretion of the triers of the facts.” Simmons v. Jones, 361 S.W.2d 860, 866 (Mo.App.1962). “It is, however, the law in Missouri that the allowance of punitive damages is always discretionary.” Bellerive Country Club v. McVey, 365 Mo. 477, 493, 284 S.W.2d 492, 503 (banc 1955). “Such damages are never allowable as a matter of right and whether or not the same are awarded lies wholly within the discretion of the trier of the facts.” DeBow v. Higgins, 425 S.W.2d 135, 143 (Mo.1968).

While we do not know the exact reason the trial court denied punitive damages, if indeed a reason is necessary, which we doubt, there are numerous circumstances the court could have considered as mitigating. DeBow v. Higgins, supra. That portion of the judgment denying punitive damages can be sustained on a reasonable theory and was not erroneous.

Concerning interest: By finding the issues upon Count I in favor of the plaintiff the trial court necessarily determined the defendant misrepresented (either knowing his representations were false or not knowing if they were true or false) the financial condition of Don’s. The evidence compels such a determination. It has been uniformly held that upon rescission under such circumstances the purchaser is entitled to interest from the date of payment. Johnson v. Mercantile Trust Company National Ass’n, 510 S.W.2d 33 (Mo.1974); Cannon v. Bingman, 383 S.W.2d 169 (Mo.App.1964); Schroeder v. Zykan, 255 S.W.2d 105 (Mo.App.1953); O’Hanlon v. Grand Nat. Co., 89 S.W.2d 79 (Mo.App.1936). Such interest is a proper element of damages in an action for damages for misrepresentation. Crawford v. Smith, 470 S.W.2d 529 (Mo. banc 1971); Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224 (1921); Harmon v. Dickerson, 184 S.W. 139 (Mo.App.1916).

The defendant argues that interest should not be allowed because even after receiving a financial statement showing adverse conditions the plaintiff did not attempt to sell his stock until after defendant sold his interests. The defendant overlooks the fact that plaintiff did not learn of the Lakeland involvement until the summer of 1972 and was not fully informed until after suit was filed. Also by necessary implication, the trial court determined the plaintiff did not act with unreasonable delay.

The defendant argues that the allowance of interest is a discretionary matter. It is true this is an action in equity and the allowance of interest is subject to equitable considerations. But “Courts of equity, in decreeing or refusing interest, generally follow the law . . . .” 47 C.J.S. Interest § 3, p. 13; Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833 (Mo. banc 1960). In this case there is no evidence of good faith such as was present in Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628 (Mo.1966). “ ‘It is almost an axiom in American jurisprudence that he who has the use of another’s money, or money he ought to pay, should pay interest on it.’ ” Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974 (1945). The defendant had the use of plaintiff’s money since the date of payment. Without the allowance of interest the plaintiff is not restored to status quo. Cannon v. Bingman, supra, 383 S.W.2d 169. With these principles in mind, interest at the legal rate should have been allowed from the date of payment. Johnson v. Mercantile Trust Company National Ass’n, supra, 510 S.W.2d 33, and cases there cited.

The cause is remanded for the amendment of the judgment in conformity with this opinion.

BILLINGS, P. J., and HOGAN, J., concur.

      . The proposition was noted but not decided in Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492 (banc 1955). “Further, under Missouri law, in suits for injunction, as an adjunct to equity jurisdiction, actual and punitive damages may be recovered.” Martin v. Swenson, 335 F.Supp. 765, 768 (W.D.Mo.1971). “Even if the sum allowed be considered as exemplary damages (the allowance of which by an equity court is at least a matter of doubt, and which, in any event, are allowable only if actual damages be found . . . .” Thompson v. Hodge, 348 S.W.2d 11, 15 (Mo.App.1961).

      . The plaintiff neither sought nor was awarded actual damages, as distinguished from restitution. An award of actual damages is said to be a prerequisite to punitive damages. Coonis v. Rogers, 429 S.W.2d 709 (Mo.1968); Koenig v. Skaggs, 400 S.W.2d 63 (Mo.1966).

      . It is error to instruct the jury it must allow punitive damages. Carson v. Smith, 133 Mo. 606, 34 S.W. 855 (1896); Nicholson v. Rogers, 129 Mo. 136; 31 S.W. 260 (1895); MAI 10.01.


source: Caselaw Access Project

author: MANFORD, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jimmie D. SOLE, Appellant.
    No. 28656.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from jury conviction for assault with intent to do great bodily harm without malice. Sentence of three years imposed. Motion for new trial timely filed and overruled.

Appellant raises one point on appeal, which reads as follows:

“POINTS AND AUTHORITIES I
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY PURSUANT TO MAI-CR 1.08 PRIOR TO THE EVENING RECESS OF COURT INSOFAR AS SUCH AN INSTRUCTION IS MANDATORY AND FAILURE TO GIVE THE SAME PREJUDICED APPELLANT AND DENIED HIM A FAIR TRIAL.”

Appellant attacks the lower court’s determination by alleging reversible error in the trial court not having given MAI-CR 1.08. That instruction reads as follows:

“1.08 INSTRUCTIONS AT EACH RECESS AND ADJOURNMENT
(a) AT THE FIRST RECESS OR ADJOURNMENT
It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of court. Until this case is given to you to decide, you must not discuss any subject connected with the trial among yourselves, or form or express any opinion about it, and, until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you or in your hearing, or read, view or listen to any newspaper, radio or television report of the trial.
The bailiff and other officers of the court are not permitted to talk to you about any subject connected with the trial, and you are not permitted to talk to them about it.
(b) AT SUBSEQUENT RECESSES OR ADJOURNMENTS
The Court again reminds you of what you were told at the first recess of the court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others, or permit anyone to discuss it in your hearing. You are not to form or express any opinion about the case until it is finally given to you to decide.”

This matter went to trial after selection of the jury. At the conclusion of the presentation of the state’s evidence, the court recessed until 9:30 a. m. the following morning. Just prior to the recess, the court stated to the jurors:

“THE COURT: Well, I’m going to recess until the morning and you can put it on first thing in the morning.
Members of the jury, we’re going to recess until 9:30 in the morning.
Now, during this overnight recess you must not form or express any opinion concerning this case. Do not discuss it among yourselves and permit no one to say anything either to you or within your hearing concerning this case.
Be back here just a little before 9:30 in the morning to the end we can start promptly at 9:30.
We’ll be in recess, Mr. Bailiff.”

No objection was made by appellant to the failure to give MAI — CR 1.08. Appellant did, however, raise the issue in his motion for new trial.

The question here is one of determination of the words used by the trial judge and their relationship to the so-called required instruction, and the statute relative to the instruction, § 546.230, RSMo 1969. It must be assumed from appellant’s brief that he specifically attacks MAI-CR 1.08(b) due to his reference to the evening recess.

Section 546.230, RSMo 1969 provides the following:

“546.230. JURY MAY SEPARATE, WHEN. — With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases; and in misdemeanors the court may permit such separation of the jury of its own motion, but when the jurors are permitted to separate, after being impaneled as provided for in this chapter, and at each adjournment the court must admonish them that it is their duty not to converse among themselves, nor to suffer others to converse with them or in their hearing on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.”

The mere lack of compliance with the giving of this instruction is not to itself reversible error. Rather, such “Noncompliance with verdict forms as established in approved jury instructions is error; however, prejudicial effect of such error is to be judicially determined . . . ”

In the case of State v. Sykes, 559 S.W.2d 643 (Mo.App.1977), (also citing State v. Boyington, 544 S.W.2d 300 [Mo.App.1976]; State v. Vernor, 522 S.W.2d 312 [Mo.App.1975]; State v. Fox, 521 S.W.2d 507 [Mo.App.1975]) the court again restated that prejudicial effect is a matter for judicial determination and in addition, the court stated:

“. . . In this case the challenged instructions given by the trial court were in substance MAI-CR 1.08(b), although admittedly not in the same words. Nevertheless, the jury was neither confused nor misled by the instructions given and fully understood that they were not to discuss the case. We find the error to be harmless in this case.”

The appellant posed no objections at the time of the court’s admonishment to the jury. In addition, the reading of the admonishment of the trial judge to the jury leads to the conclusion and clearly points out that the jury was, by the content of the words expressed, neither confused nor misled by the trial court’s statement. This leads to the inescapable conclusion that no prejudicial error is found herein.

Judgment affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    MISSOURI PUBLIC SERVICE COMPANY, Plaintiff-Respondent, v. ALLIED MANUFACTURERS, INC., Defendants, W. L. Young, Defendant-Appellant.
    No. KCD 29066.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Kodas, Reed, Gingrich & McFadden, P. C., David Q. Reed, Kansas City, for defendant-appellant W. L. Young.
    Jackson, Dillard, Brouillette & Farchmin, Gary J. Brouillette, John R. Weisenfels, Kansas City, for Missouri Public Service Co.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Missouri Public Service Company (con-demnor) and W. L. Young (property owner) both filed exceptions to the commissioners’ award of damages in a condemnation action brought to secure an easement for an overhead electric power transmission line across a 1.327 acre strip of ground varying from 40 feet in width to 30 feet in width along the north edge of a 26.15 acre tract of land adjacent to Blue Springs, Missouri.

A jury assessed the property owner’s damages at $6,366.00 notwithstanding evidence on the latter’s behalf that the 26.15 acre tract sustained damages in the amount of $1,577,891.00. In opposition thereto, con-demnor introduced evidence to the effect that damages to the 26.15 acre tract did not exceed $4,500.00. The position advanced by the property owner throughout the trial was that the highest and best use of the property at the time of the taking (June 20, 1972) was for development as an “Office Park” but that the presence of the electric power transmission line (and its supporting poles) would constitute such an aesthetic blight as to render the entire 26.15 acre tract no longer suitable or adaptable for such use. The position advanced by the condemnor throughout the trial was that the 26.15 acre tract, both from the standpoint of development costs and marketability, was unsuitable for development as an Office Park, and that its highest and best use was for development as a subdivision for single family dwellings.

After his motion for new trial was overruled, the property owner promptly responded to the literally boundless chasm between his version of the damages sustained ($1,577,891.00) and the jury’s version ($6,366.00) by taking an appeal. Surprisingly enough, a five day trial resulted in only two claims of error being singled out by the property owner on appeal: (1) error on the part of the trial court in applying an “erroneous legal criterion” for refusing property owner’s request for a new trial on the ground that the verdict was “against the greater weight of the credible evidence”; and (2) an abuse of discretion on the part of the trial court in refusing to strike three veniremen for cause.

The inception of property owner’s first point is as novel as its substance. In his motion for new trial the property owner alleged, among various other grounds, that the verdict was “against the greater weight of the credible evidence”. The motion was submitted and argued without the benefit of a court reporter. After the trial court indicated that the motion for a new trial was going to be overruled, counsel for the property owner made an unusual request which the trial judge acceded to, namely, that the trial judge “go onto the record because he [counsel for the property owner] thought it might be beneficial to him [counsel for property owner] to show in an appeal my reasoning.” Upon going “onto the record” the trial court generalized at length concerning his thought processes for refusing to grant the property owner a new trial on the ground that the verdict was “against the greater weight of the credible evidence”. After seining some seven pages of the transcript containing the trial judge’s thought processes on the subject, the property owner takes one isolated statement out of context, “I don’t do it except in instances where it is obviously unreasonable and where the conclusion is so ridiculous as to make the judicial system look ridiculous”, and attempts to utilize it as a basis for distorting the overall reasoning assigned by the trial judge for overruling property owner’s motion for new trial. This involuted approach is capped with the argument that the previously quoted matter palpably demonstrates that an “erroneous legal criterion” was relied upon by the trial judge for refusing property owner’s request for a new trial on the ground that the verdict “was against the greater weight of the credible evidence”. Parenthetically, it should be noted that property owner’s first point is couched in terms of application of an “erroneous legal criterion” rather than in terms of an abuse of discretion.

A plethora of cases exists in this state holding that the grant or denial of a new trial on the ground that the verdict is against the weight of the evidence is peculiarly within the sound discretion of the trial court and in the exercise of such discretion the trial court is permitted to weigh the evidence. See Missouri Digest, New Trial 72(1), (2) and (3). The possibility of extensive abuses of this broad, discretionary power is effectively curbed by Rule 78.02 which provides that “[o]nly one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.” In Ritzheimer v. Marshall, 168 S.W.2d 159, 165 (Mo.App.1943), where one of the issues on appeal was the propriety of awarding a new trial on the ground that the verdict was against the weight of the evidence, the issue at hand was summed up as follows: “Such a decision was a matter within his sound discretion. It is well-established law that trial courts in reviewing verdicts are permitted to weigh the evidence and, if they think injustice has been done, they may grant a new trial in cases where they would not be justified in taking an issue from the jury.” This very rationale was inversely echoed by the trial judge in this case when he went “onto the record” and stated as follows: “I did think that their argument that what was taken here converted if from a prospective office park to a piece of ground that couldn’t be developed into an office park was rather weak from the standpoint of logic, and apparently that’s what the jury thought. . So I don’t think that it’s necessary for me to say how I would have ruled if I had been trying it without a jury, but I’m certainly in no way shocked with what the jury did. I think that the weight of the evidence, if it wasn’t equally balanced, it probably was balanced the way the jury went, and that’s not to take anything away from the sincerity or the theory of the defendant.” Clearly the trial judge in the instant case did weigh the evidence and after doing so concluded that injustice had not been done. In Moore v. Glasgow, 366 S.W.2d 475, 481 (Mo.App.1963), a broad, general admonition was laid down to the effect that jury verdicts “should not be set aside lightly or capriciously”. The trial judge in the instant case obviously heeded this admonition as demonstrated by the following statements incorporated into the record: “What I had stated, and what I now repeat, is that the power to grant a new trial on the ground that the verdict is against the weight of the evidence should be used sparingly because if it was not used sparingly it can be used to interfere with the right to trial by jury. . So the fact that we have a right, only in the sense that mechanically we can get away with it — -but that doesn’t change the fact that I have the duty to follow the principles that restrict the type of circumstances in which I can grant a new trial as against the weight of the evidence.”

This court is not impressed with the property owner’s contention that the trial judge relied upon an “erroneous legal criterion” in refusing to grant a new trial on the ground that the jury’s verdict “was against the greater weight of the credible evidence”, nor the corollary argument that the trial court’s refusal to do so bespoke of an “exaggerated awe- of jury verdicts”. If the decision in this case cuts along the lines of preserving the integrity of jury verdicts vis-a-vis the discretionary power of trial courts to disagree therewith when a submis-sible case has been made, then this court opts in favor of the former over the latter. The fact that the trial court was not as compliant as the property owner felt it should have been in response to his demand for a new trial on the ground that the verdict was against the weight of the evidence cannot stand muster as an impregnable reason for branding the trial court with error. Finding the property owner’s first point to be lacking in substance and persuasiveness, the same is rejected.

The property owner’s second and final point is cast in terms of an abuse of discretion on the part of the trial court for refusing to sustain the property owner’s efforts to strike three veniremen for cause. This point relates to three veniremen in particular, Martin, Nolan and DeWitt. It’s applicability with respect to DeWitt can be disposed of with dispatch as the trial court struck him of its own volition because of a hearing defect. As to the remaining two veniremen, Nolan and DeWitt, a close look at the record becomes necessary. As a prelude to subsequent specific interrogation of the two veniremen in question, counsel for the property owner put the following question to the jury panel at large: “Well, our evidence will be that the market value of this 26-acre suburban tract has been diminished by in excess of a million dollars, and all I really want to know is, is there anybody here who feels that, without having heard the evidence, that that just couldn’t happen.” (Emphasis added.) The property owner’s second point is vulnerable to being disposed of on the basis that it seeks to commit the jurors, at least indirectly, to a fixed notion as to damages, regardless of the evidence, a practice which has generated severe criticism and, concomitantly, prejudicial error. Wright v. Chicago, Burlington & Quincy Railroad Co., 392 S.W.2d 401, 408-09 (Mo.1965). A look at the instant record in greater depth reveals that the responses of the two veniremen in question to the highly questionable inquiry heretofore set forth were not tantamount to such admissions of prejudice as to offend the guiding principle stated with considerable ease and clarity in Moss v. Mindlin’s, Incorporated, 301 S.W.2d 761, 771-72 (Mo.1956): “[0]n review by an appellate court, unless there is some fact which, we reasonably can say, in and of itself, necessarily showed prejudice, or unless there is an admission of prejudice, past or present, or unless there is something in the demeanor of the venireman which, despite his actual words, discloses the existence of prejudice in fact, we should hot convict the trial court of an abuse of discretion in overruling a challenge for cause.” Stripped of all superfluousness, and notwithstanding veniremen Nolan’s original response that “I feel that it can’t be unless the market value is such”, that “26 acres, unless its right here in Kansas City, downtown area, just couldn’t have that value, I don’t believe”, and that “If the evidence is there, but I can’t imagine this happening, but go ahead”, venireman Nolan stated his “feeling” could be “overcome by evidence” and in response to this final question put to him by property owner’s counsel, “If we do prove it, will you follow the proof?”, answered, “Yes. I can be persuaded.” Likewise, stripped of all superfluousness, venireman DeWitt, after indicating his skepticism as to the amount of damages sought by the property owner, “without having heard the evidence”, freely stated on further inquiry that his skepticism could be overcome “[i]f the evidence were such I could see it, but I would have to be shown, of course.”

A fair summarization of the above proceedings is that counsel for the property owner was trying to commit the veniremen in question by placing the matter of damages in an evidentiary vacuum, and by way of response they candidly expressed unabashed amazement and honest skepticism at the amount of damages claimed without the aid or benefit of any attendant facts. Properly viewed, the initial responses of veniremen Nolan and DeWitt to the general inquiry broached by counsel for property owner did not transcend unabashed amazement and honest skepticism to the point of manifest prejudice. When the matter was further pursued with them in the context of what the evidence might or might not prove with respect to damages they responded with equal candor that they would be guided by the evidence. It is not necessary to give blind deference to the ruling of the trial court in order to conclude that it did not abuse its discretion when it overruled the strikes for cause leveled against veniremen Nolan and DeWitt.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Timothy J. BUKOVAC, Respondent, v. LLOYD KETCHAM OLDSMOBILE, INC. and Safeco Insurance Company, Appellants.
    Nos. 29206, 29209.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Don B. Roberson, Stephen B. Millin, Jr., William L. Yocum, Kansas City, for Safeco.
    Fred A. Lambert, Edwards, Markey, Ely & Lambert, Kansas City, for Keteham.
    Robert L. Shirkey, Kansas City, for respondent.

      Before HIGGINS, Special Judge, Presiding, and PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action for $2,100 actual and $200,000 punitive damages for conversion by conspiracy of plaintiff’s automobile worth $2,100. Counterclaim by defendant Ketcham for value of repairs to plaintiff’s automobile made prior to alleged conversion and for rental value of automobile furnished plaintiff during repair of plaintiff’s automobile. Verdict for plaintiff against defendant Ketcham for $2,100 actual damages and for defendant Safeco against plaintiff on the petition and for defendant Ketcham against plaintiff for $1,132.28 on the counterclaim. Appeal (29206) by defendant Ketcham combined with appeal (29209) by defendant Sa-feco from order of new trial on all issues on ground the verdict was against the weight of the evidence. The questions are whether there was evidence to show conspiracy between defendants Ketcham and Safeco, and whether there is any distinction between award of a new trial for inadequacy of punitive damages as opposed to one for inadequacy of compensatory damages. Affirmed.

On July 15, 1974, plaintiff, with his wife as a passenger, was driving his 1972 Ford Maverick, valued at $2,100, west on Truman Road in Kansas City. While temporarily stopped in traffic, the automobile was struck in the rear by an automobile owned by James D. Foster and forced into the rear of an automobile in front of it. Although the Ford sustained damage to both its rear and front ends, it remained operable to the extent it could be driven to a repair place. Plaintiff and his wife sustained personal injuries, those of Mrs. Bukovac being severe enough to require her removal by ambu7 lance to a hospital.

James D. Foster had liability insurance with defendant Safeco and plaintiff was so informed at the scene. Plaintiff’s own liability and collision insurance was with Aet-na Insurance Company. The following day plaintiff called Safeco and talked with Henrietta Darnell, a claims adjuster. He told her how the collision occurred and of the injuries he and his wife received, and explained the condition of his automobile. He asked if she knew any good repair companies. She recommended defendant Ketc-ham, and told plaintiff he should take his car there and that Safeco would pay for its repair and rental charges on a car to be furnished him while his car was being repaired. It was disputed whether this agreement was effective only so long as Safeco had opportunity to deal directly with plaintiff. That afternoon plaintiff took his car to Ketcham where he talked with Bill Grubb, the body shop manager. A repair order was prepared by Mr. Grubb and it contained the following printed language:

“I hereby authorize the repair work to be done along with necessary materials. * * * An express mechanic’s lien is acknowledged on vehicle to secure the amount of repairs thereto. * * *
“Signed /s/ Tim Bukovac
“TERMS CASH Unless Arrangements Made.”
The repair order also carried handwrit- • ing of Mr. Grubb as follows:
“Repair Front and Rear Damage.
“Safeco Claiment. Draft to sign in office $916.28.
“Car Rental.”

Contemporaneous with execution of the repair order, plaintiff also signed a form car rental agreement to pay Ketcham $9 per day rental for the car furnished him.

A draft for the $916.28 was delivered to Ketcham by defendant Safeco through its employee, Mack Carmean. Mr. Carmean had inspected the damage to plaintiff’s automobile with Mr. Grubb July 17, 1974, and they had agreed that the damage amounted to $916.28. The draft was payable to “Timothy Bukovac and Ketcham Oldsmobile,” cashable by Ketcham upon completion of plaintiff’s repair work and his endorsement and release of Safeco’s liability for property damage.

As repair of plaintiff’s automobile proceeded, Mr. Grubb discovered previously hidden damage requiring additional work worth $142.68. Unknown to plaintiff, Mr. Grubb so notified Mr. Carmean and Safeco sent Ketcham a draft dated August 5, 1974, for $142.68, payable to “Lloyd Ketcham Oldsmobile.” Ketcham cashed this draft and credited $142.68 to plaintiff’s account.

During the course of repairs to his automobile, plaintiff employed attorney Dean Arnold and so advised Ms. Darnell at Safe-co. On .July 25, 1974, Mr. Arnold wrote Safeco as follows:

“Gentlemen, kindly be advised that this firm represents Linda and Timothy Buko-vac, who were injured July 15, 1974, on Truman Road near Chestnut Avenue in Kansas City, Missouri. Your insured, presumably, was James D. Foster, 3834 Windsor, Kansas City, Missouri. Your insured’s automobile was being operated by Timothy J. Foster, age 16. Kindly acknowledge receipt.”

Defendant Safeco interpreted Mr. Arnold’s letter as an attorney’s lien letter and acknowledged it as such July 30, 1974.

Subsequently, Mr. Arnold and John Dat-tilo, Safeco’s claims manager, had a telephone conversation relative to plaintiff’s claims. An argument developed over whether it was necessary for Mr. Arnold’s name to appear on the ear repair payment drafts. Mr. Arnold took the position it was not necessary for him to participate in the drafts or the incident release; he was interested only in plaintiff’s personal injury claim. Mr. Dattilo took the position that Safeco would be exposed to possible double payment because of the attorney’s lien unless Mr. Arnold released his lien or permitted his name on the repair drafts.

Regardless of the merits of the controversy between Mr. Arnold and Mr. Dattilo, the latter subsequently withdrew the $916.28 draft from possession of Ketcham, and advised Ketcham that Safeco was not going to pay plaintiff’s repair and rental bills at that time. Mr. Arnold secured a draft from Aetna payable to Timothy J. Bukovac and Ketcham for $1,058.96, the total of the original repair bill, $916.28, and the supplemental bill, $142.68. Plaintiff had no rental coverage with Aetna. Mr. Dattilo did not recover the supplemental draft for $142.68 because he was unaware of its issuance. At trial the $142.68 was still carried on Ketc-ham’s books as a credit to plaintiff’s account.

When plaintiff’s car was ready for delivery, Mr. Grubb called plaintiff and so advised him. He also advised that Ketcham had no draft on hand to cover repairs and rental because Safeco was not going to pay and had withdrawn its draft. On August 9, 1974, plaintiff went to Ketcham to return the rental car and get his own car. He took the draft for the total repair bill which Mr. Arnold had secured from Aetna. Mr. Grubb told plaintiff that due to company policy he would have to pay both the repair and rental charges of $216 before his car could be released. Plaintiff had no funds for the rental charges and left without his car. He was never told of the $142.68 credit to his account by way of the supplemental draft paid Ketcham by Safeco, in which case he would have had at most a balance of $73.32 due for rental.

Thomas Stilwell corroborated Mr. Grubb’s position on Ketcham’s policy and stated he was not advised prior to these proceedings that rental charges were not covered by the mechanic’s lien law. Ketcham had not been advised by Safeco to refuse delivery of plaintiff’s automobile. The automobile remains in Ketcham’s possession.

The submission against both defendants was by Instruction 3 which predicated liability on a finding that Safeco and Ketcham conspired to cause Ketcham to refuse delivery of plaintiff’s automobile unless he paid the repair and rental charges. A submission against Safeco alone was by Instruction 7 which predicated liability on a finding that Ketcham undertook the repair and withheld possession of plaintiff’s automobile within its agency for Safeco. The submission against Ketcham alone was by Instruction 10 which predicated liability on a finding that Ketcham refused delivery of plaintiff’s automobile upon tender of payment of the repair bill.

Instruction 13 authorized punitive damages if the conduct of either or both defendants was willful, wanton or malicious.

The verdict for plaintiff against Ketcham for $2,100 actual damages was consistent with the undisputed value placed on the plaintiff’s automobile by plaintiff. The verdict for Ketcham on its counterclaim for $1,132.28 was consistent with the repair bill, $1,058.96, plus the rental bill, $216, a total of $1,274.96, less the $142.68 credit from Safeco. Punitive damages were denied.

Appellants do not question the jurisdiction of the court to award one new trial on the ground the verdict was against the weight of the evidence, Rule 78.01, subject only to presence of a submissible case, Friedman v. Brandes, 439 S.W.2d 490, 492 (Mo.1969).

Appellant Ketcham would accept the verdict against it for the actual damages awarded plaintiff because of the verdict of no punitive damages against either defendant and the favorable verdict on its counterclaim. In support of its position, it charges the court abused its discretion in setting aside the verdict for purpose of a new trial to plaintiff because: The actual damages awarded plaintiff is the exact amount prayed and proved by plaintiff; the damages awarded Ketcham on its counterclaim were proved with concurrence of and without contradiction by plaintiff; plaintiff failed to prove a case for punitive damages; and whether to award punitive damages rests peculiarly in the discretion of the jury.

Appellant Safeco charges the court’s order was in error and an abuse of discretion because plaintiff failed to make a submissi-ble case against defendant Safeco in that there was no evidence that defendants Sa-feco and Ketcham conspired to cause Ketc-ham to refuse plaintiff .delivery of his automobile, and no evidence that Ketcham’s refusal to deliver plaintiff’s automobile was within the course and scope of any agency relationship with Safeco.

Respondent’s position is that there was evidence to show that Ketcham wrongfully and illegally refused to deliver plaintiff’s automobile to him, and that Safeco brought about and joined in such conversion by which both defendants were guilty of conspiracy; and that there is no distinction between the grant of a new trial for inadequacy of punitive damages and the grant of a new trial for inadequacy of actual damages.

The parties concede the definition of “conspiracy” given the jury in Instruction 4:

“[a] combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damage.”

See also Royster v. Baker, 365 S.W.2d 496, 499-500 (Mo.1963); Rosen v. Alside, Inc., 248 S.W.2d 638, 643 (Mo.App.1952); Mills v. Murray, 472 S.W.2d 6, 12 (Mo.App.1971); Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083 (1943); Rotermund v. U. S. Steel Corp., 474 F.2d 1139 (8th Cir. 1973). Note also that a conspiracy cannot be the subject of a civil action unless something is done which, without the conspiracy, would give rise to a cause of action. To maintain an action for damages something in pursuance of the conspiracy must have been done, occasioning injury from which the damages have proximately resulted. Dano v. Sharpe, 236 Mo.App. 113, 152 S.W.2d 693, 695[5] (1941).

Ketcham’s failure to surrender plaintiff’s automobile to him upon tender of payment of repairs to it gives rise to a cause of action for conversion. Joinder in that act by Safeco, if so, would give rise to a claim based on conspiracy.

Ketcham concedes that Safeco and Ketchum “breached an oral contract which they had in unison for the benefit of a third person,” plaintiff Bukovac. Ketcham also admits that it “made a serious mistake. It converted plaintiff’s car by insisting on payment of the car rental charges before releasing plaintiff’s car to him even though he was ready, willing and able to pay the car repair bill” in satisfaction of the mechanic’s lien against it. Plaintiff, in response to Safeco’s directions, took his automobile to Ketcham to be repaired and secured an automobile from them with the cost of both to be paid by Safeco. The agreement was acceded to and joined by Ketcham. Safeco, with Ketcham’s cooperation, withdrew its payment pursuant to such agreement and left plaintiff to shift for himself in payment of repairs to his car with the end result that he was wrongfully deprived of his car for inability to pay rental charges. Defendants’ bad faith is further shown by their failure to disclose the credit of $142.60 standing to plaintiff’s account at the time $216 in rental was demanded of him.

In these circumstances it was for the jury to say whether these defendants were to be relieved from punitive damages through exercise of sound business judgment with room for honest mistakes, as they contend, or whether the acts of both defendants which arose from breach of an agreement made for the benefit of plaintiff constituted a conspiracy as defined by the court to subject them to punitive damages. Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, 353 S.W.2d 102, 105-106 (Mo.App.1961).

Punitive damages are awarded for purposes of punishing a wrongdoer and deterring him and others from similar acts in the future. Whether to award punitive damages and, if so, in what amount, rests peculiarly in the discretion of the jury. Wisner v. S. S. Kresge Co., 465 S.W.2d 666, 669-670 (Mo.App.1971). It is the province of the trial court, however, to say whether the facts warrant as a matter of law an .award of punitive damages. “The determination of this matter has been always one of law for the court. * * * courts have the same power of supervision over the one sort of damages as they have over the other * * State ex rel. Atchison, T. & S. F. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075, 1076-1077 (1916).

Consistent with this discretion, the trial court awarded a new trial to plaintiff on ground the verdict was against the weight of the evidence, which ground encompasses inadequacy of the verdict. Foster v. Rosetta, 443 S.W.2d 183, 185 (Mo.1969); State ex rel. State Highway Commission v. Klipsch, 414 S.W.2d 783 (Mo.1967).

Judgment affirmed.

All concur.


text:
    Gerry E. POUNCIL, Appellant, v. STATE of Missouri, Respondent.
    No. 29343.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Jeffery L. Alena, Gepford & Sears, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and SWOPFORD, C. J., and WEL-BORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial, without evidentiary hearing, of second motion under Rule 27.26 to vacate and set aside judgment and sentence to concurrent 10-year terms of imprisonment entered upon plea of guilty to two counts of robbery, first degree. Denial of relief was predicated on the files and records of the case, principally movant’s failure to establish why grounds for relief asserted in his second motion could not have been raised in his prior motion. Appellant questions the denial of the second motion without hearing, and the companion failure to appoint counsel on said motion. Affirmed.

On February 13, 1974, Gerry E. Pouncil, assisted by his lawyer, Assistant Public Defender Gary Haggerty, pleaded guilty to two counts of robbery, first degree. On March 11,1974, after presentence investigation and while present with Assistant Public Defender James W. Fletcher, he was accorded allocution and sentenced to subject imprisonment. A motion under Rule 27.26, which alleged as grounds for relief “insufficient counselling” and “under the influence of drugs during sentencing,” was overruled November 3, 1975. Subject motion, filed June 18, 1976, alleged, inter alia, ineffective assistance of counsel in advising him not to say anything about a plea bargain, failure to interview defendant, failure to investigate his defense, failure to investigate State’s witnesses, and failure to secure benefits of a plea bargain. To excuse his failure to raise such new grounds in his prior motion, movant asserted: “The Mov-ant had a jailhouse lawyer prepare and file the prior 27.26 motion and Movant was not aware of these grounds at that time until he had conversed with a more qualified person.”

The court found generally that movant’s allegations were “refuted by facts elicited at the guilty plea hearing,” and found specifically:

“Movant understood that the court need not accept the plea of guilty, unless the court is satisfied of movant’s guilt and satisfied that movant understood all of his rights. * * * that the range of punishment for the charge of Robbery in the First Degree was five years in the penitentiary to life in the penitentiary. * * * that he waived any claim that the court did not treat him fairly when he pled [sic] guilty. * * * Movant knowingly and voluntarily admitted the facts of the robbery. * * * Movant acknowledged there was not any promise or any threat made to cause him to plead guilty [and] that he had no belief as to what sentence he would receive.
“Movant fully discussed his plea of guilty with his attorney, had no complaints about his attorney, and was satisfied with the services of his attorney. Movant acknowledged that he was pleading guilty because he was, in fact, guilty. Movant understood that the court need not accept any recommendation of the State, or the defendant, or defendant’s attorney, or anyone else. * * * that upon acceptance of the plea of guilty the court could assess a penalty of from five years to life in the penitentiary on each of two counts [and] that the court would order a Pre-Sentence Investigation, but * * * that regardless of what was in the Pre-Sentence Investigation the court need not follow the recommendation of anyone as to what penalty movant would receive.
“Other than to tell movant to tell the truth, no one told him to answer questions in any certain way at the time of the guilty plea. Movant acknowledged that all of the answers at the guilty plea were true and correct. Movant declared freely and voluntarily that he wanted to withdraw his plea of not guilty and enter a plea of guilty to the two charges of Robbery in the First Degree. * * * The court further found at the time of the guilty plea that defendant was ably represented by counsel of record.”

The foregoing findings are not questioned and they are supported by the transcript of proceedings on defendant’s guilty plea, principally defendant’s sworn testimony. Such transcript shows, in addition, the following:

“Q. Do you have any belief as to what your sentence will be? A. No. Q. Now, have you fully discussed your plea of guilty with your attorney, Mr. Haggerty? A. Yes. Q. Have you have any problems in talking with Mr. Haggerty, either his understanding you, or your understanding him? A. No. Q. Do you have any complaints about what Mr. Haggerty has done, or what he has not done, on your behalf? A. No. Q. Are you satisfied with the services of your attorney, Mr. Haggerty? A. Yes. Q. Are you pleading guilty because you are, in fact, guilty? A. Yes.
“Q. Do you understand that the Court need not accept any recommendation of the State, or you, or your attorney, or anyone else, on this matter? A. Yes. Q. You understand that upon acceptance of your plea of guilty the Court could assess a penalty of from five years to life, on each of these two counts, is that true? A. Yes. Q. And you understand that the State is going to suggest that the Court order a pre-sentence investigation? * * I am going to order a pre-sentence investigation; but, I want you to tell me if you understand that regardless of what’s in that pre-sentence investigation the Court need not follow the recommendation of anyone, as to what penalty you receive. Do you understand that? A. Yes. Q. Now, other than to tell you to tell the truth, has anyone told you to answer questions in any certain way, today? A. No.”

The court concluded that the transcript and file showed movant entitled to no relief and that he had failed to establish that his grounds for relief could not have been raised in his prior motion.

Appellant contends the court erred (I) in denying his motion without a hearing “insofar as appellant’s allegations were not conclusively resolved by the files and records of the case”; and (II) in failing to appoint counsel before overruling said motion “as appellant’s motion presents questions of law and issues of fact which necessitate the assistance of counsel.”

Rule 27.26(d) provides:

“The sentencing court shall not entertain a second or successive motion for relief * * * where the ground presented in the subsequent application was raised and determined adversely * * on the prior application or where the ground presented is new but could have been raised in the prior motion * * *. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.”

Movant’s excuse for failure to raise his present grounds for relief in his prior motion amounts to no more than an allegation of lack of legal knowledge. Such allegation does not authorize a finding that movant could not have raised the new grounds in his prior motion. Jones v. State, 521 S.W.2d 504, 506 (Mo.App.1975); Grant v. State, 486 S.W.2d 641, 643 (Mo.1972).

Where a hearing on defendant’s plea of guilty controverts grounds raised in his motion under Rule 27.26, an evidentiary hearing on such grounds is not required. State v. Clay, 520 S.W.2d 172, 175 (Mo.App.1975). The court was not obliged to accord movant a hearing on his assertion that Mr. Haggerty “told the movant that he had talked to the prosecuting attorney and to the trial court judge prior to the guilty plea and both of them agreed to a plea bargain * * * [to] receive probation,” and that Mr. Haggerty “told the Movant not to say anything about the plea bargaining when asked by the trial court judge” because the unquestioned findings of the trial court and the transcript of proceedings of movant’s plea of guilty demonstrate their contradiction. See Mainord v. State, 541 S.W.2d 779 (Mo.App.1976), and note its distinction of Burgin v. State, 522 S.W.2d 159 (Mo.App.1975).

This motion came under the rule that when a second postconviction motion, in conjunction with other portions of the files and records of the case, discloses that the motion should not be entertained because of noncompliance with.Rule 27.26(d), there is no need for the court to appoint counsel on the second motion. Jones v. State, supra; Duisen v. State, 504 S.W.2d 3 (Mo.1974). Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), which required appointment of counsel to aid in redrafting or amendment of a motion filed by an indigent under Rule 27.26, does not aid this movant because it does not apply retroactively to this case. Fields v. State, supra, 572 S.W.2d l.c. 483[4]; Westmoreland v. State, Mo.App. E.D. 39338, 39664, 12/5/78; Sterling v. State, 579 S.W.2d 712 (Mo.App.1979).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth C. WHITE, Defendant-Appellant.
    No. 29369.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Kevin Locke, Asst. Public Defender, Clifford A. Cohen, Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J. and WASSERSTROM, J.
   PER CURIAM.

Direct appeal from conviction for manslaughter. Appellant was indicted for murder in the second degree, waived trial by jury, was tried by the court and upon conviction, was sentenced to ten years imprisonment. Motion for new trial timely filed and overruled.

Prior to trial, Appellant filed his motion to suppress physical evidence taken during the search of Appellant’s residence. A full hearing was held on the motion and said motion was overruled.

One point is raised on appeal.

“POINTS AND AUTHORITIES I
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE PHYSICAL EVIDENCE TAKEN FROM APPELLANT’S HOME ON JULY 15, 1976 AS THE WARRANT AUTHORIZING SUCH A SEARCH AND SEIZURE WAS NOT BASED UPON SUFFICIENT PROBABLE CAUSE AND THUS DENIED APPELLANT HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 15 OF THE MISSOURI CONSTITUTION.”

A careful review .of the evidence in this case reveals that five items were seized during the search of Appellant’s residence, those being an ax handle, a sheet, a blanket, a piece of mattress cover and a mop. During the search, photographs of the scene were also taken.

Solely upon the error alleged by Appellant, it might be concluded the decision would come within the purview of State v. Phillips, 532 S.W.2d 533 (Mo.App.1976). However, this case falls outside the scope of State v. Phillips, supra, as well as other federal and state decisions relating to unlawful search and seizure because in the instant case, none of the seized items or photographs were ever introduced into evidence.

Indeed, careful examination of the record discloses the only reference to any such items was one photograph identified by an Officer Kuhn. The identification followed the officer’s testimony of his personal observation of the interior of Appellant’s residence. Unlawfully seized items never introduced into evidence cannot serve as the basis to invalidate a criminal conviction. See State v. Simone, 416 S.W.2d 96 (Mo.1967); State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974).

There is one further matter to be resolved. The failure to object to the identification of the photograph and Appellant’s failure to present this matter within the motion for new trial preserved nothing for review on appeal. State v. Simone, supra; State v. Yowell, supra.

The identification of the photograph by Officer Kuhn without objection, if anything, was mere cumulative evidence and was not prejudicial to Appellant so as to bring this case within Rule 27.20(c), commonly referred to as the plain error rule.

For the reasons set forth herein, the judgment is in all respects affirmed.


author: PRITCHARD, Judge.

text:
    RANDOM ACRES DEVELOPMENT CO., INC., et al., Appellants, v. Thomas W. TIERNEY, Sr., et al., Defendants, and William K. Poindexter, Movant-Respondent.
    No. WD 29401.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Donald V. Pierce, Jr., Kansas City, for appellants.
    Michael C. McCormick, Lee’s Summit, for movant-respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

The issue is whether movant-respondent Poindexter is entitled to $2,000.00 attorney fees, as allowed by the trial court, for services rendered to appellant, Random Acres, prior to his discharge as counsel and substitution of other counsel, where there was a subsequent dismissal of Random Acres petition and no fund was created for its benefit.

On behalf of Random Acres and other plaintiffs, Poindexter, on October 6, 1975, filed a suit against Thomas W. Tierney, Sr., Thomas W. Tierney, II, Robert C. Tierney and Margaret Tierney, seeking in Count I the production of corporate books and financial records; in Count II, $750.00 damages under § 351.215, RSMo 1969, for refusal and neglect to produce the corporate records; and for damages in Count III for allegedly wrongfully and without authority making a bank loan secured by corporate real property. At 5:30 p. m., on the same day suit was filed, a meeting of the board of directors of the corporation was held at which defendant, Thomas W. Tierney, Sr., was elected president, defendant, Robert C. Tierney, was elected vice president, and defendant, Thomas W. Tierney, II, was elected secretary. These directors then adopted a resolution to terminate Poindexter’s engagement as counsel, and also adopted a resolution appointing Thomas W. Tierney as corporate counsel. On March 3, 1976, a second amended petition was filed, adding Count IV for certain further damages arising'out of the corporate loans. This petition was met with a renewed motion to dismiss for failure to state a claim.

On June 3, 1976, Poindexter moved for permission to withdraw as counsel, and hearings were had thereon on June 25,1976, and on August 6,1976, on which latter date Poindexter and his associate, McCormick, were permitted to withdraw for all purposes. On September 13, 1976, Poindexter filed the instant motion for attorney fees, and the order permitting the withdrawal as counsel was then rescinded. Further hearings were had on the motion and the value of services. The court found that Poindex-ter had been counsel for the corporate plaintiff from March 11, 1975 to October 6, 1975, and awarded him the here contested fee.

Respondent cites 7 C.J.S. Attorney and Client § 122, p. 954. That authority, and the cases cited thereunder, bespeak of counsel having a lien or a claim for attorney fees and expenses, where there is no special circumstance requiring preservation of the lien or claim. In the there cited cases, and those relied upon by respondent, John Griffiths & Son Co. v. United States, 72 F.2d 466 (C.A. 7th 1934), there was a contingent fee contract (obviously an attorneys’ lien matter) wherein the court retained jurisdiction to hear evidence upon all claims and demands of appellants, accountants-attorneys; Estee Candy Co. v. United States, 343 F.Supp. 1362 (Cust.Ct., 1972), also involving discharged counsel under a contingent fee contract, the court merely preserving to counsel the payment of fees when payment from the United States should be received, reserving jurisdiction in respect thereto; City of Hankinson, North Dakota v. Otter Tail Power Co., 294 F.Supp. 249 (D.C.N.D.1969), where the contract between counsel and the city provided that if the city elect not to pursue its cause of action, it should (still) be liable for reasonable attorney fees and cost. The court applied the federal rule that the city’s dismissal of its claim should be conditioned upon its payment of counsel fees, as found; First Iowa Hydro Elect. Corp. v. Iowa-IIlinois Gas & E. Co., 245 F.2d 613 (C.A. 8th 1957), where a master was appointed wherein counsel fees on behalf of plaintiffs were incurred, much before a trial stage. Held, it was within the discretion of the court or master to require attorneys to be paid as a condition for the substitution of new counsel — an on-going proceedings; and Doggett v. Deauville Corporation, 148 F.2d 881 (C.A. 5th 1945), which speaks also of preserving liens of attorneys. Rogers Walla Walla, Inc. v. Ballard, 16 Wash.App. 92, 553 P.2d 1379 (1976), applied a. specific statute allowing attorney fees to counsel who was dismissed upon substitution of other counsel before allowing the withdrawal.

In this case there is no existent, statutory attorney’s lien. § 484.130, RSMo, grants an attorney’s lien upon his client’s cause of action or counterclaim, “which attaches to a verdict, report, decision or judgment in his client’s favor, * * There is of course no judgment here, Random Acres having dismissed its petition with prejudice, which is its posture as it arrives in this court. See Young v. Levine, 326 Mo. 593, 31 S.W.2d 978 (1930); Munday v. Thielecke, 290 S.W.2d 88 (Mo.1956); and Downs v. Hodge, 413 S.W.2d 519 (Mo.App.1967), holding that although the lien comes into existence upon the filing of the claim, it attaches only to the judgment in the client’s favor and the proceeds thereof.

In Universal Oil Products Co. v. Standard Oil Co. of Indiana, 6 F.Supp. 37 (D.C.Mo.1934), affirmed, German v. Universal Oil Products Co., 77 F.2d 70 (8th Cir. 1935), it was held in similar circumstances to this case, that an attorney for plaintiff in a patent infringement case, which was dismissed by it, could not summarily proceed (by intervention) to collect compensation for legal services rendered, his remedy being by independent action at law upon contract, or in equity to foreclose attorney’s lien (which lien is here nonexistent). See also McLaughlin v. McLaughlin, 427 S.W.2d 767 (Mo.App.1968), where a wife discharged her counsel and dismissed her divorce petition. Held, that since the attorney no longer represented the wife, and had no personal interest in the suit, his motion for attorney’s fees should have been denied.

The motion here for allowance of counsel fees should have been denied. It is noted that counsel’s total claim was for $7,689.20, and the court allowed him only $2,000.00. He may still have his claim for compensation for legal services in an independent action as by quantum meruit. Elliott v. Empson, 555 S.W.2d 46, 47[2] (Mo.App.1977).

The judgment is reversed.

All concur.


text:
    Byron Eugene JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 29407, 29664.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    William C. Buck, Kansas City, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from trial court order overruling motion for post-conviction relief under Rule 27.26.

An evidentiary hearing was held wherein Movant was represented by counsel. The court made findings of fact and conclusions of laws. The rule of Fields v. State, 572 S.W.2d 477 (Mo.banc 1978), is satisfied.

Movant was originally charged with murder in the first degree and later, pled guilty to the lesser offense of murder in the second degree. After a pre-sentence investigation, sentence was affixed at twenty years confinement.

On September 26, 1973, Movant filed a Rule 27.26 motion alleging his guilty plea had been involuntary because said plea was made only upon assurance from defense counsel that he would receive a sentence of ten years.

On this appeal, the court is required to resolve the problem of the claimed subjective belief of Movant relative to his plea of guilty. There is no means by which the law can probe the interior of anyone’s thoughts or beliefs upon any subject. Such a subjective claim must, of necessity to test its reasonableness, be weighed by careful review of all circumstances surrounding such a claim.

For this test, we turn to the record of the 27.26 hearing where reference is made to the original transcript concerning the acceptance of Movant’s plea of guilty. That record reflects the following pertinent inquiry:

“Q. I refer you to page 13, line 12, where the Court asked you the following question. ‘Have you been induced by any threats, promises or offers of reward to plead guilty to this charge?’ Would you read your reply to the Court on line 14, please?
A. ‘No, no, sir. Not at all.’
“Q. On line 15 of that page, line 15 of page 13 of the transcript, ‘Has the plea of guilty which you wish to enter in this case been induced by any promise or representation or prediction by anyone as to what sentence will be imposed or any representation as to probation?’ And would you read your reply on line 19 to the Court, please?
A. ‘No, sir.’
“Q. Referring now to line 20 of that page, again page 13 of the transcript, the Court asked the following question. ‘Do you understand that the Court does not have to accept any recommendation of the prosecuting attorney or of your attorney as to the sentence to be imposed by the Court upon you?’ Would you read your reply on line 24, please?
A. ‘Yes, sir.’ ”

In addition, it should be pointed out that testimony by both counsel for the defense and for the prosecution refuted any claimed reference to plea bargaining for a ten year sentence.

Movant has the burden of proving, by a preponderance of the evidence, that there was any manifest injustice. State v. Jackson, 514 S.W.2d 638 (Mo.App.1974). He has failed to do so. The review of Movant’s claim is limited to determination of whether the findings and conclusions of the trial court were clearly erroneous. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). They were not. Having concluded that they were not, Movant is not entitled to relief on appeal.

As was stated previously, it is impossible to know with absolute certainty the subjective thoughts and belief of anyone and therefore, such claimed belief must, in each case, be tested to determine the reasonableness of such claim. This determination is perhaps best summarized in the case of McMahon v. State, 569 S.W.2d 753 (Mo.banc 1978) wherein the court stated,

“ * * * Any test of whether a person, in fact, has harbored a particular belief is necessarily subjective. While an individual may proclaim he had a certain belief and may subjectively believe it, if it was unreasonable for him to entertain such a belief at the time of the plea proceeding, relief should not be granted. The subjective test has to be viewed in light of the reasonableness of the claimed belief. See Barylski v. State, 473 S.W.2d 399, 401 (Mo.1971); State v. Rose, 440 S.W.2d 441, 445 (Mo.1969). Otherwise the granting of every 27.26 motion would be automatic upon the movant’s assertion that his guilty plea resulted from a subjectively mistaken belief. The test to be applied must be viewed in the light of the reasonableness of the claimed belief. Where there is no reasonable basis for the belief in light of the guilty plea record, movant is not entitled to relief * * * ”

Appellant’s contention arises from his purely subjective belief, not from reasonableness supported by evidence of record. Movant has failed to meet the test prescribed in McMahon v. State, supra.

Action of the trial court is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, ex rel. ST. JOSEPH, MISSOURI ASSOCIATION OF PLUMBING, HEATING AND COOLING CONTRACTORS, INC., a corporation, and James W. Supple, Individually and Representative of those persons constituting the United Association of Plumbers and Pipe Fitters of United States and Canada, Local # 45, Relators-Respondents, v. CITY OF ST. JOSEPH, Missouri and Frank L. Endebrock, Director of Public Works of the City of St. Joseph, Missouri, Respondents, v. TOWN AND CAMPUS INTERNATIONAL, INC., Intervenor-Appellant.
    No. KCD 29646.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Stephen J. Briggs, Morton, Reed & Counts, St. Joseph, for intervenor-appellant.
    William G. Whetsell, St. Joseph, for respondents, City of St. Joseph, and Frank L. Endebrock.
    Downs & Pierce, Robert D. Colley, St. Joseph, for respondents, St. Joseph, Missouri Ass’n of Plumbing, Heating and Cooling Contractors and James W. Supple.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Town and Campus, Inc. appeals from an order denying them intervention in a mandamus action brought at the relation of Missouri Association of Plumbing, Heating and Cooling Contractors and Local # 45 of the United Association of Plumbers and Pipe Fitters against the City of St. Joseph. The mandamus sought a circuit court order directing the cancellation of plumbing permits issued to a plumber, Ronald Woods, for work on an apartment project under development by Town and Campus, Inc.

Ronald Woods had been licensed in several other cities but was not licensed in St. Joseph. The mandamus was brought after the decision in State ex rel. Sprague v. City of St. Joseph, 549 S.W.2d 873 (Mo. banc 1977), which held that St. Joseph as a charter city was not required to afford reciprocity in licensing under the provisions of Sections 341.010-341.080 RSMo 1969. Upon the issuance of the preliminary writ in mandamus, Endebrock, the administrative officer of the City of St. Joseph who had issued the permits, wrote to Ronald Woods advising him that the City would comply with the preliminary writ and would rescind the permits. This notice also advised Woods of the date upon which the hearing was set. On that date, an attorney representing Woods was present; an attorney representing Town and Campus also appeared and filed a motion to intervene.

The intervenor-appellant’s motion alleged irreparable harm if the writ were issued because Ronald Woods could not complete his work on the apartment project already in progress. There was an allegation that the intervenor would be damaged in the sum of $2 million if Woods were not permitted to complete the work. The attorney for Woods took no part in the proceedings except for a response to an inquiry from the court that the record could show he was “present.”

At the June 3 hearing, the City of St. Joseph confessed the allegations of the alternative writ; the court overruled the motion to intervene and entered a peremptory writ of mandamus directing rescission of the Ronald Woods permits. Intervenor Town and Campus appeals from the denial of the motion to intervene.

In a single point, the intervenor argues that the trial court’s judgment was in error because it was entitled to intervene as a matter of right under the provisions of Rule 52.12(a). The applicable provisions of that rule are as follows:

“52.12 Intervention
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so-situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(c) Procedure. A person desiring to intervene shall serve a motion upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.”

Rule 52.12(a) was changed in 1972 so that the entire rule is now substantially identical to Rule 24 of the Federal Rules of Civil Procedure. The change in the rule broadened the language and the requirements for mandatory intervention. While the former rule required a showing that the applicant would be bound by a judgment in the action, the present rule requires only that the applicant show that “the disposition of the action may as a practical matter impair or impede his ability to protect that interest . . . .” According to the Advisory Committee Notes to the 1966 amendment to Fed.R.Civ.P. 24, the Rule’s “criterion imports practical considerations, and the deletion of the ‘bound’ language similarly frees the rule from undue preoccupation with strict considerations of res judicata.” 28 U.S.C.A. Rule 24, pp. 16-17. Overall, however, the major purpose of the rule, both in Missouri and in the federal jurisdictions, is “to facilitate the determination of all related disputes in one proceeding, and thereby avoid a multiplicity of actions.” State ex rel. Hughes v. Smith, 485 S.W.2d 646, 651 (Mo.App.1972).

Despite the broadening of the Rule’s language, any request for mandatory intervention under 52.12(a) must establish that three basic elements are present: (1) the applicant must show an “interest” in the subject of the action in which he seeks to intervene; (2) he must show that his ability to protect his interest will be impaired or impeded as a practical matter; and (3) he must show that his interest is not adequately represented by the existing parties.

Intervenor does not quarrel with the foregoing statement of principles; its brief recites the same tests. The problem in this case is the application of the criteria to a very scanty record. All that appears in the record is a bare allegation by Town and Campus that it would suffer $2 million in damages if the plumbing permits were rescinded.

The respondents contend that the lack of a formal pleading is a fatal flaw in intervenor’s case and that the trial court properly overruled the Motion to Intervene. The cases in the federal jurisdictions using Rule 24 and in the Missouri eases under Rule 52.12 demonstrate that a compliance with the pleading requirement may be excused in compelling circumstances. Wright and Miller, Federal Practice and Procedure : Civil § 1914, and cases cited therein. In Missouri, the general rule has always been that the statute should be liberally construed to permit broad intervention. Bolin v. Anders, 559 S.W.2d 235, 247 (Mo.App.1977); State ex rel. Hughes v. Smith, supra at 651.

However, applying this principle to excuse the lack of a formal pleading does not resolve the dilemma in applying the threefold test required under Rule 52.12.

The requirement that the applicant have an interest in the subject of the litigation is a requirement that did not change with the recent amendment to the rule. Early cases in Missouri gave substantial discussion to this requirement, and the analysis in those cases is still valid for the present case. Most often cited is the case of State ex rel. Farmers Mutual Automobile Insurance Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318 (banc 1954). The pertinent language on “interest” is as follows:

“ . . . ‘interest’ means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action, but such ‘interest’ does not include a mere consequential, remote or conjectural possibility of being in the same manner affected by the result of the original action; . . . the ‘interest’ must be such an immediate and direct claim upon the very subject matter of the action that intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein.” supra 273 S.W.2d at 321.

Other early cases in Missouri cite and follow the Weber definition of interest. See Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685 (1956); Laclede Gas Company v. Abrahamson, 296 S.W.2d 100, 102 (Mo.1956); State ex rel. State Farm Mutual Ins. Co. v. Craig, 364 S.W.2d 343, 346 (Mo.App.1963).

Federal cases which followed the 1966 version of the portion of Rule 24 dealing with mandatory intervention give a more practical definition of the “interest” necessary for intervention. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967) discusses the “interest” term without much definition, other than to quote the Advisory Committee Notes, supra at 133 n. 3. Hobson v. Hansen, 44 F.R.D. 18 (D.D.C.1968) states that the Notes of the Advisory Committee “indicate that the petitioner’s interest should be clearly related (directly or indirectly) to the subject matter of the action, and suggest that that interest be a substantial one.” supra at 23.

Most useful of all the federal case definitions is that found in Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694 (1967).

“We know of no concise yet comprehensive definition of what constitutes a litigable ‘interest’ for purposes of standing and intervention under Rule 24(a). One court has recently reverted to the narrow formulation that ‘interest’ means a ‘specific legal or equitable interest in the chose’. Toles v. U. S., 371 F.2d 784 (10th Cir. 1967). We think a more instructive approach is to let our construction be guided by the policies behind the ‘interest’ requirement. We know from the recent amendments to the civil rules that in the intervention area the ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” supra 128 U.S.App.D.C. at 178, 385 F.2d at 700.

Based on this definition of interest, it appears that the intervenor possessed the requisite interest to justify intervention. For the purposes of this decision, it may be conceded that the existing parties would not protect the intervenor’s claimed interest.

The ultimate and essential issue is whether or not there is anything in this record which will support the second element of the test under Rule 52.12 — that the intervenor’s interest will be impaired or impeded as a practical matter if it is not permitted to intervene. All that the inter-venor says in its brief with respect to this issue is that as a practical matter it would have no way to challenge the peremptory writ once it was issued and, therefore, its ability to protect its “interest” would be impaired.

This rather bald assertion does not provide a basis for finding that the second element is present. The authorities have analyzed the right to intervention under the rule by stating the necessary elements separately. Nonetheless, the elements are interrelated and, in a situation like the present one, the relationship of the elements is important. Under the earlier version of the rule, the relationship between the intervening party’s interest and the remedy was a rigid one. The intervenor was required to show some binding effect of the judgment upon his interest. The present rule relaxes the requirement to a showing that as a practical matter the interest will be affected, but the intervenor must still show how his interest will be affected. The instant case is classic in demonstrating the importance of the relationship between the factors justifying intervention. The intervenor here has focused on a claim of damage but has not related that assertion of damage to the interest in the permits in any but the most general terms. Conceding that the immediate or apparent interest of the intervenor was the continuation of valid permits for Woods, the real issue is how the cancellation of the permits would affect the ultimate and real interest of the intervenor in the completion of the project.

How, as a practical matter, the cancellation of the permits would affect the interest of intervenor depends upon the nature of the contractual relationship between Woods and the intervenor with respect to the permits. The record and the briefs are silent on these matters. The contract may have required intervenor to obtain the permits; it may have permitted cancellation if the permits were not obtained or were can-celled, or it may have been silent as to the obligations of the parties concerning the permits. The contract provisions would obviously be important in determining whether, as a practical matter, the intervenor’s interest would be affected by the cancellation of the permits. Indeed, it is possible that the underlying contract would show by its terms that the apparent interest of in-tervenor was not, in fact, a protectible interest.

Only by speculation or tacit assumption can the second element of practical impairment and its relationship to intervenor’s interest be found. The intervenor as the pleader had the burden to show in some fashion all of the elements. The motion itself does not show the elements sufficiently. Although the failure to file a pleading may not be fatal, State ex rel. Hughes, supra, the factual and theoretical basis for the claim of intervention must appear in some fashion. It is not clear from the case law that the failure to file a pleading with the motion excuses the failure to state the basis for a claim of intervention in the motion itself. Whatever the source, there must be some basis for review of the trial court’s order. The record in this case, the briefs, and the record in the prohibition proceeding filed by intervenor in this court, State ex rel. Town & Campus v. Steeb, No. KCD 29572, have been examined. There is no hint or suggestion concerning the nature of the contractual arrangement between Ronald Woods and the intervenor as it affects the plumbing permits in any of these sources. Thus, even assuming that the necessary factual and theoretical basis for intervention could be supplied from the briefs or the record, there is nothing here to permit a finding that the trial court erred in refusing intervention. The intervenor has failed to demonstrate that an interest existed which would as a practical matter be impaired or impeded.

The judgment is affirmed.

All concur.


text:
    George E. CALLEN, d/b/a G. E. Callen Company, Respondent, v. Forrest Franklin WALLIS, d/b/a Wallis Cabinet Shop, and d/b/a Gallery of Kitchens, Defendant, and Wales and Webb Construction Company, Inc., Appellant.
    No. 29662.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      R. Frederick Walters, Kansas City, for appellant; Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, of counsel.
    Michael E. Callen, Kansas City, Witt & Shafer, Platte City, for respondent.
    Before HIGGINS, Special Judge, Presiding, and WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Respondent recovered judgment against appellant (Wales) and defendant jointly for furnishing a fourth shipment of kitchen cabinets, alleged to have been unpaid, in the amount of $5,460.51. The essence of Wales’ several contentions here is that there was no reasonable theory, contract or otherwise, supported by substantial evidence, upon which the judgment can be affirmed.

Wallis, being in the cabinet business, contracted with general contractor, Wales, to supply the kitchen cabinets ■ and formica tops for the Sherri Estates project in Marshall, Missouri, for $26,555. Wallis was going to procure the cabinets from respondent, and the formica tops from America Laminates. He agreed to pay respondent about $24,000, to which about $700 was added because of the architect’s changes. The cabinets were to be delivered to the job site in four shipments. The first and second shipments were delivered on October 17 and November 5, 1973. Respondent had not been paid for the shipments so he contacted Wales that he would not continue shipments until he received some payments. Wales directed its bookkeeper to call respondent and tell him that Wales would pay him directly for these cabinets, Buford Wales testifying that this was done to make sure that there was no stoppage on the project. Respondent received that call on November 19, 1973, and delivered the third shipment of cabinets on November 28, 1973, billing Wales therefor. Respondent was paid by Wales for the first and second shipments on December 8,1973, and for the third shipment on January 23, 1974. He delivered the fourth shipment on December 13, 1973, and billed Wales therefor, but was never paid for it. Wales claimed that it made the final payment to Wallis, and that payment is the subject of respondent’s suit against both Wales and Wallis. Wales filed a cross-claim against Wallis, for which judgment was given for $5,430.45.

Wales first says that the judgment is against the weight of the evidence in that it and respondent did not agree or intend to agree that Wales would pay respondent the amount it was charging Wallis for the cabinets. The contention ignores the evidence above that respondent contacted Wales and advised that no more cabinets would be shipped until he received some payments. Wales in return advised respondent that it would pay directly, and Wales did so, not only for the amounts in arrears for the first two payments for completed shipments, but also for the third shipment. The benefit was directly to Wales in that it avoided stoppage of its project, which was the purpose of its offer. In the very similar case of Carvitto v. Ryle, 495 S.W.2d 109 (Mo.App.1973), where an owner who being told by plaintiff subcontractors that because they were fearful of not being paid by the general contractor they would pull off the job, assured them, “ ‘You boys don’t do that. I’ll see that you get your money.’ ” The owner asked them to finish the job. Held, loe. cit. 495 S.W.2d 113[3], “This arrangement contained all of the necessary elements of a simple contract, including consideration as so basically defined in Charles F. Curry & Co. v. Hedrick, 378 S.W.2d 522 (Mo.1964) * * Further on the lack of consideration, a point urged by Wales, and ruled in Carvitto, see Flanagan v. Hutchinson, 47 Mo. 237 (1871), where plaintiff sold a quantity of wheat to Hesse, who sold it to defendant, who in turn promised to pay and did pay a part of Hesse’s debt to plaintiff. Suit was for the balance due. Held, the sale of the wheat by Hesse to defendant was a good and sufficient consideration for the promise. It is not a valid contention that there was a lack of consideration because Wales was entitled to delivery of the cabinets pursuant to its contract with Wallis, and respondent was obligated to deliver cabinets under his contract with Wallis. Under the evidence, Wallis had not paid respondent. The inference is present that he did not do so because Wales had not paid him. To assure no work stoppage and continued deliveries, Wales promised to pay respondent direct, which it did on three shipments. The consideration then flowed directly between Wales and respondent. The matters referred to above are sufficient to support the trial court’s judgment upon the theory that a contract, supported by sufficient consideration, was made and completed by respondent’s deliveries of cabinets. The judgment in a court-tried case will be affirmed if it can be sustained on any reasonable theory. McHenry v. Claspill, 545 S.W.2d 690, 693[7-8] (Mo.App.1976). The trial court made no findings of fact or conclusions of law, so it is unnecessary to speculate as to other theories urged by Wales in its remaining four points: That no novation was created; that the theory was that respondent was a third party beneficiary;" that the recovery was granted on the theory of quantum meruit; that there was no consideration for modification; or that there was no meeting of minds that Wales and Wallis would be jointly liable. Note that there was no evidence of an agreement among the three parties that Wallis would be released from his liability, as by a novation. Cf. Oddo v. Associated Wholesale Grocers, Inc., 387 S.W.2d 169, 173 (Mo.App.1965).

The judgment is affirmed.

All concur.