author: CLEMENS, Presiding Judge.

text:
    Mary Jane DOLAN, Appellant, v. Robert Raphael DOLAN, Respondent.
    No. 37628.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 10, 1976.
    Carter & Becker, David S. Purcell, Clayton, for appellant.
    David McMahon, St. Johns, for respondent.
   CLEMENS, Presiding Judge.

This appeal by plaintiff-wife stems from her motion under § 452.345, RSMo., 1973 Supp., to compel defendant-husband to pay her $600 monthly alimony payments to the circuit clerk. The trial court ordered the alimony payments to be so made, but later on its own initiative amended that order by reducing the amount to $400 a month. Plaintiff appeals. We reverse and remand.

We recite the pertinent proceedings:

April 24, 1967. Decree of divorce to wife and $600 a month alimony.

February 14, 1975. Plaintiff filed a motion alleging unpaid alimony and praying the court to order defendant to pay the $600 monthly alimony payments to the circuit clerk as her trustee.

July 30, 1975. The court granted plaintiff’s motion and ordered defendant “to deposit alimony payments into the registry of the circuit court.”

November 14, 1975. Parties appeared by counsel at a hearing called by the court, which declared: “Let the record show that for the purpose that the Court ordered this hearing for the purpose of clarifying the record in this proceeding, is that the Circuit Clerk advised the Court that on the basis of the order entered previously directing the defendant to pay money into the Registry of the Court that order did not specify an amount of money to be paid into the Registry of the Court, and the Circuit Clerk has indicated that they would not be able to process it properly without a specified amount and a date.” (Emphasis supplied.)

Although pertinent to the issue before the court, we note that over plaintiff’s objection the court then received in evidence a complex document executed in 1972 whereby the parties had agreed, subject to numerous conditions, to reduce the monthly alimony payments from $600 to $400, depending in part on changes in the husband’s income. There was no evidence as to whether the defendant had complied with the compromise agreement.

At the conclusion of the hearing the trial court entered the order from which plaintiff now appeals: “Cause called, parties appear, evidence adduced. The Court orders that its memorandum of July 30, 1975 be amended to include, Respondent ordered to deposit alimony payments of $400.00 into the Registry of the Court. Costs against the Respondent.”

On appeal plaintiff contends the trial court exceeded its jurisdiction in ordering defendant to pay into court only $400 a month when her existing alimony judgment was for $600 a month, “since no motion or pleading was before it stating a claim or making a prayer for any such reduction.” We agree.

In Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11[3-5] (Mo.App.1966), we followed the oft-cited opinion of Lamm, J., in State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25[1] (1909), and ruled: “Courts do not set themselves in motion but remain passive until the issues are framed by the parties; that what the court decides within those issues is res judicata, but anything beyond is coram non judice and void. So, at the hearing now under consideration the ambit of the court’s authority was limited to the area of controversy which the parties had adopted and the court itself had prescribed.”

This cardinal principle has been applied in other divorce actions, voiding judgments to the extent they grant relief beyond the pleadings. See Hughes v. Wagner, 303 S.W.2d 181[1, 2] (Mo.App.1957), and Dickey v. Dickey, 132 S.W.2d 1026[4-8] (Mo.App.1939).

Here, at the February 14 and November 14, 1975 hearings, there was no pleading concerning the amount of the previously adjudicated $600 monthly alimony payments defendant had been ordered to pay. And, at the latter hearing, from which the present issue arises, the trial court declared it had the hearing only to amend the earlier order by giving the circuit clerk “a specified amount and date.”

We hold that on November 14,1975 there was neither pleading nor evidence before the court warranting a reduction of the monthly $600 alimony payments. To the extent the court’s order did so it was void.

The cause is remanded and the trial court is ordered to amend its November 14, 1975 order by changing the amount of monthly payments from $400 to $600.

DOWD and STEWART, JJ., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry GROTHE, Defendant-Appellant.
    No. 36885.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 10, 1976.

      Daniel W. Deiter, Montgomery City, for defendant-appellant.

      James G. Gregory, Montgomery City, John, C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his § 561.460 RSMo. 1969 conviction for issuing an insufficient funds check to the Montgomery County Livestock Auction Company.

Defendant’s difficulties commenced at a horse auction conducted by the Montgomery County Livestock Company. On the day of the auction, Junior McCowan, as auctioneer for the auction company, had been “caught” with one of the horses offered at auction, and when no one bid on the horse, Mr. McCowan had purchased it for the Livestock Company for $96. After the auction McCowan approached the defendant and offered to sell the horse for $125 which defendant agreed to pay. Defendant issued his check for the horse in the following manner: the defendant signed his name to a check for $125 drawn on his funds in the First North County Bank and Trust Company of St. Louis; the defendant wrote in the figure “$125.00” on the check but allowed McCowan to write “one Hundred & twenty Five” in the appropriate space and to have inserted “Montgomery County Livestock Auction Co.” as the designated payee. There is no dispute that the funds in defendant’s account were insufficient.

On appeal, defendant argues that the State failed to prove that defendant delivered a legal check within the meaning of § 561.460 or that Montgomery County Livestock Auction Company was defrauded and thereby induced to part with its property. Defendant denies that the instrument he gave McCowan was legally a check, because it did not contain the name of the payee. He also contends that he intended the payee to be McCowan, not the auction company and that the evidence failed to establish that he authorized McCowan to place the auction company’s name on the check. We believe that the record refutes defendant’s contention. From the testimony of the defendant, the jury could find that he was aware of McCowan’s association with the auction company; that Montgomery County Livestock Auction Company was the payee; and that he authorized McCowan to have the auction company’s name inserted on the check as payee. The defendant’s testimony is sufficiently clear for the jury to find that he authorized the name “Montgomery County Livestock Auction Company” to be filled in as payee of the check which he signed. The auction company’s name was stamped in the appropriate blank space on the check in defendant’s presence and by his assent. The U.C.C., § 400.3-115 RSMo.1969, relating to incomplete instruments, provides in part:

“1) When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, bat when it is completed in accordance with authority given it is effective as completed." (emphasis added)

From defendant’s testimony it is apparent that McCowan had the name of the auction company inserted on the check pursuant to at least implicit, if not explicit, authority of the defendant, and according to § 400.3-115 the check became effective as completed. As said in Bruegge v. State Bank of Wellston, 74 S.W.2d 835, 840 (Mo.1934):

“Authority to fill in blanks in an instrument need not be express, but may be implied, and when fairly inferable from the conduct of the parties, and circumstances surrounding the transaction, is as effectively given as if expressly conferred.”

Here, defendant deliberately left the payee blank for McCowan to have filled in and looked on while the name of the auction company was affixed to the check. Under the evidence, it is chimerical for the defendant to suggest that he did not intend or authorize the Montgomery County Livestock Auction Company to be the payee of the check. Under the circumstances of this case where the check was given to McCow-an in payment of the horse purchased by the defendant, with the name of the payee left blank, McCowan was given authority to have the name of the payee inserted in the manner accomplished. Fitzgibbon Discount Corp. v. Hatchett, 427 S.W.2d 786 (Mo.App.1968).

The defendant also argues that he did not deliver a “check” as that term is defined in the U.C.C., § 400.3-104(1) RSMo. 1969. This section lists the requisite elements of a negotiable instrument as:

“(1) Any writing to be a negotiable instrument within this article must
(a) be signed by the maker or drawer; and
(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article; and
(c) be payable on demand or at a definite time; and
(d) be payable to order or to bearer.” (emphasis added)

As the payee on the check was not designated when it was given to McCowan, the defendant claims it was not legally a “check,” and, therefore, he was not guilty of delivering an insufficient funds check. The defendant relies on State v. Kleen, 491 S.W.2d 244 (Mo.1973), for the proposition that a violation of § 561.460 does not occur if the instrument delivered fails to include the payee’s name. The defendant’s reliance on the Kleen case is misplaced. There the court was confronted with the issue of whether a violation of § 561.460 had occurred within the State of Missouri. The defendant signed a check in Missouri but left the check incomplete as to the payee and the amount. The check was subsequently completed in Tennessee. It was held that there was no violation in Missouri for issuing an insufficient funds check in Missouri, as the offense of issuing a completed check had not occurred in Missouri. However, the court clearly established that if the check had been completed in Missouri by the insertion of the name of the payee and the amount under circumstances parallel to those in this case, a violation of § 561.-460 would result. State v. Kleen, supra, is felicitous but works totally to defendant’s disadvantage and discomfiture. Applying the principles of Kleen, it is observed that defendant violated the statute when the check was completed by the insertion of the name of the payee with the defendant’s authority. Thus, under State v. Kleen, supra, the facts are sufficient to show that a legal check was delivered by the defendant to Montgomery County Livestock Auction Company. Our decision is consonant with State v. Kleen, supra.

In his second attack on the sufficiency of the evidence, the defendant contends that there was no showing that Montgomery County Livestock Auction Company relied on his check or that it parted with any of its property — that it was the victim of the offense charged. The defendant argues that the horse was owned by McCowan and not the auction company, and therefore, if there were a victim it was McCowan. Because he was charged with inducing the auction company to part with its property, the defendant asserts that the evidence does not support his conviction.

The essence of a violation of a § 561.460 is that an injured party must rely on some false or deceitful pretense or device and part with his property. State v. Kleen, supra; State v. Garner, 432 S.W.2d 259 (Mo.1968). The evidence shows that McCowan, who was a stockholder, officer and director of the auction company, opened the bidding on the horse at $96, and when no bids were made, McCowan was “caught” with the horse and purchased it. The defendant claims that McCowan purchased the horse for himself and that there was no showing that at that time McCowan was acting as an agent of the Montgomery County Livestock Auction Company. A review of the record demonstrates that there was sufficient evidence for the jury to find that McCowan’s purchase was made on behalf of the auction company and that it was the auction company which had relied on the insufficient funds check to part with its property. McCowan testified unequivocally that the horse which the defendant purchased belonged to the Montgomery County Livestock Auction Company; that in bidding on and acquiring the horse prior to the sale to defendant, McCowan had bid on and purchased the horse for the auction company utilizing a bidder number assigned to the auction company. Defendant also presented a witness who verified that McCowan had purchased the horse for the auction company prior to its sale to defendant; that the auction company owned the horse at the time defendant purchased it.

The defendant also beseeches us to find that the trial court should have instructed the jury on a misdemeanor charge. He reasons that since the value of the property he received was under $100, (the auction price of the horse was $96), he should have been charged with a misdemeanor under § 561.460. The defendant cites no cases that would support his view that the classification of the offense under the statute should be determined by the value of the property received, nor does the language of the statute support his interpretation. “If the check, draft or order is one hundred dollars or more the offense is a felony.” Section 561.460 (emphasis added). The focus of the statute is on the value of the check. The language is unambiguous. If the check is over $100, then the offense is a felony. No mention is made of the value of the property received as a factor in determining the class of the offense. As the check issued by the defendant had a face value of over $100, under the statute he was properly charged, and the jury was properly instructed that the offense was a felony.

In his final point, the defendant attacks the State’s verdict-directing instruction on two grounds: 1) that it is an improper deviation from the MAI-CR; and 2) that a necessary word was omitted. The State’s verdict-director reads in part:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 16th day of February, 1973, in the County of Montgomery, State of Missouri, the defendant, with intent to defraud, delivered to Montgomery County Livestock Auction Company, a check in the amount of $125.00 upon First North County Bank and Trust Company dated February 16, 1973, payable to Montgomery County Livestock Auction Company;
Second, that the defendant did so to procure any article or thing of value, and Third, that the Montgomery County Livestock Auction Company relied upon the purported genuineness of the check, and Fourth, that there were then not sufficient funds in or credit with the bank for the payment in full of the check upon its presentation, and,
Fifth, that at the time the defendant delivered such check he knew he did not have sufficient funds in or credit with the bank for the payment in full of the check; then you will find that defendant guilty of issuing a cheek with insufficient funds.
However, if you do find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” (emphasis added)

The defendant correctly states that this instruction modifies MAI-CR 10.18 by adding what has been designated paragraph Third. However, the record clearly shows that paragraph Third was included in the State’s verdict director at the request of the defendant. Furthermore, the inclusion of paragraph Third requires the jury to find an additional fact before it can find the defendant guilty, thus the modification was in the defendant’s favor. “A defendant in any criminal case shall have no just cause for complaint because: 1) error was committed during the trial at his instance or in his favor.” Rule 26.06 V.A.M.R. See also State v. Adams, 497 S.W.2d 147 (Mo.1973). Thus, the defendant cannot justifiably complain of the modification of MAI-CR 10.18.

The defendant’s other attack on the form of the verdict director concerns the omission of the word “not” in the paragraph immediately following paragraph Fifth: “However, if you do [ ] find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” While the omission of “not” from MAI-CR 10.18 constitutes error, its prejudicial effect is to be judicially determined. Rule 20.02(e) V.A.M.R. The omission of “not” renders the instruction internally inconsistent. The last portion of paragraph Fifth instructs the jury that if they find all the elements included in the instruction to exist, they must find the defendant guilty. The following paragraph (due to the omission) then tells the jury that if they find all the elements listed, they must find the defendant not guilty. While this may be somewhat confusing to the jury, the omission of “not” works in the defendant’s favor, because the jury is literally instructed to find the defendant not guilty if they find all the elements contained in the verdict director; thus, the defendant’s complaint is not legitimate. State v. Mills, 521 S.W.2d 495 (Mo.App.1975). Furthermore, any confusion created by the omission was cured by the defendant’s converse which instructed the jury that they must find the defendant not guilty if they found that the defendant had not committed any of the elements of the offense charged.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . The defendant’s testimony on cross-examination was in part:
      “Q. Is that your signature on the bottom or to [sic] the check of State’s Exhibit No. 1?
      A. Yes.
      Q. Now, you bought the horse, didn’t you?
      A. Yes.
      Q. Now, this check was given for a buckskin horse, wasn’t it?
      A. Yes, it was.
      Q. And it was given and you agreed to pay $125.00 for the horse, didn’t you?
      A. Yes, I did.
      Q. And when you gave the check to Mr. McCowan, you wrote in the numerical figures $125.00 on State’s Exhibit No. 1, did you not?
      A. Yes.
      Q. And you wrote the date, February 16, 1973?
      A. Yes.
      Q. And you signed your name ‘Terry F. Grothe’?
      A. Yes.
      Q. Did he write — Who wrote in one hundred twenty-five dollars ($125.00) in longhand?
      A. Yes, he did.
      Q. Did Mr. McCowan do that?
      A. Yes.
      Q. You handed it to him that way? You didn’t care who it was made out to, did you?
      A. No. I told him I couldn’t spell it.
      ******
      Q. (By Mr. Gregory) [Prosecutor] You didn’t care who it was made out to?
      A. I asked him what I should put on it.
      Q. You didn’t know how to spell it and you didn’t have any room to write Montgomery County Livestock Auction on there, did you?
      ******
      Q. (By Mr. Gregory) You didn’t have room to write Montgomery County Livestock Auction on the check, did you?
      A. I don’t, know how to spell it.

      Q. (By Mr. Gregory) You didn’t write, quote, Montgomery County Livestock Auction Company, close quote, in the check because you didn’t know how to spell it, didn’t you?

        A. (By Witness) I didn’t write it in because I didn’t know how to spell it. I didn’t write it in because I told him I couldn’t spell “hundred”.
      Q. (By Mr. Gregory) You told him you didn’t know how to spell “hundred”?
      A. Yes.
      Q. I am talking about the name of the payee, Montgomery County Livestock Auction Company. That was stamped, wasn’t it? That is a stamp, isn’t it?
      A. Yes. The woman stamped it when I was going out the door.”

      . Compare § 560.161 RSMo.1969 (penalties for stealing — fourth offense) where the value of the property taken is the crucial factor in determining the classification of the offense.

      . The defendant’s converse:
      “If you find and believe from the evidence:
      That on or about the 16th day of February, 1973, in the County of Montgomery, State of Missouri, the defendant, did not with intent to defraud, deliver to Montgomery County Livestock Auction Company, a check in the amount of $125.00 upon First North County Bank and Trust Company dated February 16, 1973, payable to Montgomery County Livestock Auction Company, or
      That the defendant did not do so to procure any article or thing of value, or
      That the Montgomery County Livestock Auction Company did not rely upon the purported genuineness of the check, or
      That at the time the defendant delivered such check he did not know he did not have sufficient funds in or credit with the bank for the payment in full or [sic] the check
      then you must find the defendant not guilty of issuing a check with insufficient funds.”


author: RENDLEN, Judge.

text:
    In re the MARRIAGE OF Roy C. RICHARDSON, Respondent, and Alleen Richardson, Appellant.
    No. 36707.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 10, 1976.

      Theodore S. Schechter, Clayton, for appellant.
    Kenneth J. Rothman, Clayton, Daniel R. Sokol, St. Louis, for respondent.
   RENDLEN, Judge.

In 1972 Roy Richardson (respondent) petitioned to divorce his wife Alleen (appellant) who responded by answer, cross-bill and motion for allowances pendente lite; the court in May of that year sustained the latter, awarding appellant $40 per week temporary alimony and $300 attorney’s fees.

The cause was heard on the merits under the new dissolution of marriage act and appellant, proceeding on her cross-bill, testified to facts essential for her claim. Counsel for respondent by leave withdrew, his client having failed to appear. The court on October 17, 1974, entered its decree dissolving the marriage, awarding appellant $40 per week permanent maintenance, $200 additional attorney’s fees and costs.

Respondent, receiving notice of the court’s ruling, petitioned to set aside the October 17 decree; and on November 6 the court vacated the award of maintenance, reinstated the allowance for temporary alimony “pending a hearing on the financial award” but left the dissolution undisturbed. In the court’s words, “the dissolution of marriage stands.” From this order, Alleen Richardson appeals.

In her “Point Relied On” appellant complains “the court erred entering its order of November 6,1974, . . . In so far as it affected all financial awards, letting it stand as to the dissolution only, and continuing in full force and effect the pendente lite award pending a final decree disposing of all” the financial features of the action. Though in the argument section of her brief, the point is not clearly developed, presenting only an oblique attack on the order of dissolution, we consider the point as an assignment of error directed to the entire judgment. Appellant further contends the ruling of the court was erroneous in that: (1) she was given no notice of the court’s intention to vacate the decree; (2) the order was violative of Rule 75.01, V.A. M.R., since good cause was not shown to set aside the decree and the order failed to specify the grounds; and (3) the order erroneously dissolved the marriage but continued temporary maintenance pending final resolution “of the financial awards.”

We first must determine if the appeal may lie and we are required “to make such an inquiry sua sponte.” Harper v. Harper, 379 S.W.2d 889, 890[1] (Mo.App.1964); Altman v. Werling, 509 S.W.2d 787[1] (Mo.App.1974). For reasons we shall discuss, the appeal must be dismissed.

The right of appeal in Missouri is purely statutory, Altman v. Werling, supra at 788[2], and § 512.020, RSMo 1969, V.A.M.S., provides that only parties aggrieved by a judgment of any trial in any civil cause may appeal. This court in Farrell v. DeClue, 382 S.W.2d 462, 466[1] (Mo.App.1964), defined the statutory term “aggrieved” as “suffering from an infringement or denial of legal rights.” Here, appellant sought and proved a right to dissolution and on that issue was properly awarded the relief prayed. It has long been held that a party may not appeal from a judgment fully in his favor or giving him all the relief requested. Turner v. Anderson, 236 Mo. 523, 139 S.W. 180 (1911); see also State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669, 673[8] (en banc 1946), in which this principal found application in an action for divorce. It is clear appellant has no right of appeal from the order of dissolution nor from the order continuing temporary maintenance during pendency of the action because in each instance she was not aggrieved in the statutory sense. Respondent, who stands in the position of one aggrieved by the order for temporary allowance, has not appealed.

As to the order vacating the award of maintenance, Rule 75.01, V.A.M.R. (derived from § 510.370, RSMo 1969, V.A.M.S.) authorizes the trial court on its own motion within thirty days of entry of the judgment to grant a new trial for any reason “which it might have granted a new trial on motion of a party.” In correlation, Rule 81.05 (derived from § 512.020) provides that a judgment becomes final for the purpose of appeal thirty days after entry, if no timely motion for a new trial is filed. Under these Rules a judgment, set aside during this thirty-day period of control granted the trial court, is not appealable as there is no final judgment. “Logic and justice would seem to indicate that a trial court should be permitted to retain control of every phase of a case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable.” State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232[5] (Mo. banc 1969). See also Altman v. Werling, supra at 788[3]; Kallash v. Kuelker, 347 S.W.2d 467, 470-2[3-6] (Mo.App.1961).

In the case at bar the order had no final effect on appellant’s claim for maintenance. The court expressed concern that it had erred in failing to properly consider the short period the parties lived together prior to separation and set aside the judgment, permitting further evidence in the cause. If the court, as appellant contends, acted precipitously on improper notice or failed to properly state its grounds therefor, the appropriate remedy for relief from such actions would be prohibition, not appeal. State ex rel. Murphy v. Aronson, 330 S.W.2d 140 (Mo.App.1959). We do not know what the final decree of the court will contain. The trial court has retained jurisdiction and may enter a decree favorable or unfavorable to appellant, demonstrating clearly there is no final judgment for this court to review. Pendleton v. Pendleton, 532 S.W.2d 905, 906[1-3] (Mo.App.1976). The appeal is dismissed.

WEIER, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri, Respondent, v. Melvin BREWER, Appellant.
    No. 36964.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 10, 1976.

      Neal P. Murphy, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Melvin Brewer appeals his conviction of carrying a concealed weapon, § 564.610, RSMo. 1969, V.A.M.S., and sentence of three years imprisonment imposed by the court under the second offender act, § 556.-280, RSMo. 1969, V.A.M.S.

As error, appellant contends: (1) there was insufficient evidence of (a) intent, and (b) concealment; (2) the gun, seized in violation of his fourth amendment rights, was improperly admitted into evidence; and (3) error in the verdict-directing instruction.

The facts are simple and by in large undisputed. On August 27,1974 at about 9 a. m., Detectives 'Stewart and Hawkins, while patrolling in an unmarked police car, noticed appellant, who was familiar to both officers, standing on the sidewalk on California Avenue in the City of St. Louis holding something white, which they later learned was a t-shirt. Drawing abreast of appellant, the officers observed him remove an object from his pocket, wrap it in the t-shirt, place it in the gutter, and walk away in a stooped position. Stopping the car, Officer Hawkins approached appellant while Stewart examined the object in the gutter. Discovering it was a pistol, Stewart called to Hawkins who placed appellant under arrest.

“In testing the sufficiency of the evidence the facts and evidence and favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.” State v. Achter, 514 S.W.2d 825, 826[1] (Mo.App.1974); State v. Strong, 484 S.W.2d 657, 661[9] (Mo.1972); State v. Sherrill, 496 S.W.2d 321, 323[1] (Mo.App.1973). Concerning the adequacy of proof of intent, appellant concedes that intent to conceal may be inferred from proof of concealment; State v. Holbert, 416 S.W.2d 129, 133[7] (Mo.1967); State v. Jordan, 495 S.W.2d 717, 720[7] (Mo.App.1973); but argues that there was no proof of concealment. This contention is without merit. Both officers testified they observed appellant before he removed the object from his pocket and until he did so it could not be seen. This, coupled with the fact the object taken from his pocket was shown to be a gun, sufficiently demonstrates concealment to make a submissible case. The cases cited by appellant involved defendants with exposed weapons when first observed by the police and are therefore inapposite. More closely in point is State v. Davis, 527 S.W.2d 724, 726[2] (Mo.App.1975), in which testimony that officers saw defendant take a gun “from the area of his pocket,” was held sufficient to make a prima facie case of carrying a concealed weapon. Appellant’s first allegation of error is denied.

Appellant next contends the gun was seized during an illegal search and thus improperly admitted in evidence. Though appellant correctly asserts there was no probable cause to believe he was committing a crime and he could not have been arrested or searched until the gun was discovered, the record reveals no arrest occurred until the gun was found in the gutter at the place where the officers saw him put it. No warrant was required to examine and seize the abandoned object. State v. Jackson, 476 S.W.2d 540, 542[1] (Mo.1972); State v. Tarantela, 461 S.W.2d 848, 851[6] (Mo.1971); State v. Stavricos, 506 S.W.2d 51, 58[15] (Mo.App.1974). When it was determined the abandoned object was a gun, sufficient probable cause existed for appellant’s arrest. The Fourth Amendment to the United States Constitution does not require that the police blindly ignore evidence cast into the street. Appellant’s second point is denied.

Finally appellant urges that the verdict-directing instruction, MAI-CR 13.-10, was erroneous in that it submitted the issue of whether the gun was a dangerous and deadly weapon notwithstanding the admonition in the Notes on Use that the clause should be omitted when the weapon is a firearm. The instruction as given imposed upon the State an additional burden. Although error, it favors defendant and reversal will not be granted for nonprejudicial deviation from MAI-CR. State v. Mills, 521 S.W.2d 495, 497[4] (Mo.App.1975); State v. Rice, 511 S.W.2d 444, 445-6[2] (Mo.App.1974); State v. Cox, 508 S.W.2d 716, 723[12, 13] (Mo.App.1974). Though appellant’s point is denied, we endorse the admonition in the concurring opinion in State v. Mills, supra at 497-8, that continued approval of deviations from MAI-CR holds the potential to eventually destroy the benefits of pattern instructions. Careless deviation, as found in the present case, is to be condemned. It is the responsibility of the trial court to correctly prepare verdict-directing instructions and though the error has not led to reversal, this duty must not be lightly taken.

The judgment is affirmed.

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

      . State v. Tate, 416 S.W.2d 103 (Mo.1967); State v. Jordan, 495 S.W.2d 717 (Mo.App.1973).

      . MAI-CR 13.10 relating to the charge of “Carrying a Concealed Weapon” submits as the second element of the offense “that the [refer to weapon according to type] was a dangerous or deadly one, . . .” However in the Notes on Use the court is instructed to “Omit paragraph Second if the weapon is a ‘firearm,’ . which the statute declares to be dangerous weapons. Any other weapon would have to be found to be ‘dangerous or deadly’ and a paragraph Second should be used.”

      .It should be noted that instructional deviations which impose additional burdens on the State are not in all cases excused as nonprejudicial. See State v. Davis, 540 S.W.2d 122 (Mo.App.1976).


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph HULSEY, Defendant-Appellant.
    No. 37033.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 10, 1976.

      Wilson Gray, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

This is an appeal from an order of the Circuit Court of Franklin County revoking probation. The appeal is dismissed upon the mandate of § 549.141, RSMo 1969, which provides that “The action of any court in granting, denying, revoking, altering, extending or terminating any order placing a defendant upon probation or parole is not subject to review by any appellate court.” State v. Camden, 514 S.W.2d 181 (Mo.App.1974); State v. Madison, 519 S.W.2d 369 (Mo.App.1975); Stroder v. State, 522 S.W.2d 77 (Mo.App.1975); State v. Ewing, 522 S.W.2d 105 (Mo.App.1975).

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


author: BILLINGS, Chief Judge.

text:
    Linda Kay DODD, Appellant, v. Billy Gene DODD, Respondent.
    No. 10051.
    Missouri Court of Appeals, Springfield District.
    Aug. 12, 1976.
    George W. Gilmore, Jr., Gilmore & Gilmore, Sikeston, for appellant.
    Jim S. Green, Hux & Green, Sikeston, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Custody proceeding. The Circuit Court of Scott County modified the custody portion of a dissolution decree and awarded respondent-father the principal custody of the parties’ eight-year-old son.

The transcript of the hearing held on the motion to modify shows the judgment is based on findings of fact which are not clearly erroneous. There is evidence of changes of circumstances since the custody was vested in appellant-mother.

We defer to the trial court’s judgment that the interests of the child will be best served by granting respondent-father custody-

No error of law appears and an opinion would have no precedential value.

Judgment affirmed. Rule 84.16(b).

All concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Michael Eugene BRAYFIELD, Appellant.
    No. 9967.
    Missouri Court of Appeals, Springfield District.
    Aug. 17, 1976.

      John Pratt, Springfield, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   FLANIGAN, Judge.

A jury found defendant Michael Eugene Brayfield guilty of burglary in the second degree and stealing and fixed the punishment at two years for each offense. Defendant, on this appeal from the ensuing judgment and sentence, presents three assignments of error. None is valid and the judgment is affirmed.

Defendant’s first contention is that the trial court erred in overruling defendant’s motion, made at the close of voir dire examination, to discharge “the jury panel.” The motion included an alternative request that nine named members of the panel be discharged for cause. The trial court overruled both prongs of the motion.

Defendant bases this contention upon certain information developed during voir dire. The panel members will be referred to by their respective names. Mr. DuFlot was acquainted with state’s witness Brinkman. “It was a casual type acquaintance, not personal or social — I would know him if I saw him.” DuFlot added that his acquaintance with the witness would not influence “my verdict in any way or my ability to hear the evidence.”

Mr. Lawrence thought he may have done some business with Wells Tire Company (owner of the burglarized premises). He stated, however, that fact “would not influence me in any way in this case.”

Mr. Mullís was acquainted with prosecutor Kelly. He stated, however, that fact would not “guide my determination in this case.” He said he knew Mr. Kelly “very very casually when I see him.”

Defendant attacks the qualifications of six other members of the jury panel by saying “three separate pairs of jurors were acquainted with one another in varying degrees”: Vermillion with McDaris, Patterson with Moore, and Minor with Melton.

Mrs. Vermillion was the next door neighbor of McDaris. “We have not even had a cup of coffee together.” Mrs. Vermillion stated that her acquaintance with McDaris “would not have any effect on my deliberations.” McDaris said the same thing.

Patterson and Mrs. Moore were members of the same church. Patterson stated that nothing in his acquaintance with Mrs. Moore “would cause me to give her word more weight than anybody elses in the jury room.” Mrs. Moore made a similar statement.

Mr. Minor said that he and Mrs. Melton live in the same neighborhood and have “worked on election boards together.” He said that that acquaintanceship would not affect “my deliberations.” Mrs. Melton made a similar statement.

Although the record shows that DuFlot, Minor, and Vermillion sat as jurors, it does not disclose whether the defendant exercised a peremptory challenge with respect to any of the other six panel members.

Defendant was entitled to a full panel of qualified jurors before being required to make his peremptory challenges. State v. Cuckovich, 485 S.W.2d 16, 22[10] (Mo. banc 1972). However, the duty of determining the qualifications of'a venireman rests with the trial judge and his decision thereon will not be disturbed unless there is a clear abuse of discretion. State v. DeClue, 400 S.W.2d 50, 57[12] (Mo.1966); Cuckovich, at p. 22[11].

All doubt should be resolved in favor of the finding of the trial court. State v. Wilson, 436 S.W.2d 633, 637[5] (Mo.1969). The opportunity of the trial court to observe the demeanor of the venireman in reaching an evaluation of his testimony touching his qualifications as a juror places the trial judge “in a far better position to make that determination than are we from the cold record.” Cuckovich, at p. 23.

A prospective juror is not automatically disqualified because he is acquainted with a witness, State v. Cashman, 485 S.W.2d 431, 433[3] (Mo.1972), or because he is acquainted with, or has been a client of, the prosecuting attorney. State v. Grant, 394 S.W.2d 285, 289[8] (Mo.1965).

The law does not require a jury panel to be a gathering of total strangers. If a panel member were disqualified merely because he was acquainted with another member, it would be difficult, if not impossible, to muster a qualified array, especially in rural circuits.

Scrutiny of the entire voir dire examination has convinced this court that the trial court did not err in overruling the motion to discharge the jury panel or to discharge for cause any of the nine panel members whose individual qualifications have been attacked. Defendant’s first contention has no merit.

Defendant’s second contention is that the trial court erred in overruling defendant’s objection to a portion of the testimony of police officer George Brinkman, a witness for the state.

On direct examination Brinkman testified that he held the rank of corporal. The prosecutor then asked Brinkman if he was “being promoted to detective.” Defendant’s counsel objected on the ground of irrelevancy. The objection was overruled and the witness gave an affirmative answer.

In State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 326[29] (1946) it is said:

“The following is stated in 70 C.J., p. 554, § 714: ‘Questions to a witness directed toward aiding the jury in setting a proper estimate on his testimony are preliminary in their nature and may be properly asked, as, for example, questions which relate to the age of the witness, his residence, his occupation, and his condition in life, etc.’ It is common practice.”

Even if it be assumed, arguendo, that the attacked testimony was irrelevant, “a judgment is not to be reversed because of the admissions of irrelevant and immaterial evidence which clearly is not prejudicial.” State v. Talbert, 454 S.W.2d 1, 3[4] (Mo.1970); State v. Franklin, 526 S.W.2d 86, 91[14] (Mo.App.1975). Defendant’s second contention has no merit.

Defendant’s third contention is that the trial court erred in receiving into evidence state’s Exhibit A, an “impact wrench.” Defendant bases this contention on the assertion “that the state failed to establish probable cause for the arrest of the defendant.” At the time police officers arrested defendant, an hour or so after the commission of the burglary, the impact wrench was found in the car of which defendant was the driver and sole occupant.

That portion of the information which pleaded the stealing offense alleged that the article stolen was one “URYU impact wrench” and gave the name of its owner. Exhibit A was that wrench.

For two reasons defendant’s third contention must fail. The first reason is that defendant did not file a motion to suppress the impact wrench as evidence although he “necessarily knew that as a part of the state’s evidence it would be offered in evidence.” State v. Flynn, 519 S.W.2d 10, 11[1] (Mo.1975). Missouri practice, with an exception not here material, requires a preliminary motion to suppress evidence claimed to have been the result of an unconstitutional search and seizure. State v. Johnson, 472 S.W.2d 393, 394[2] (Mo.1971), Rule 33.03 V.A.M.R. Appellant’s third contention has not been preserved for appellate review for the reason that no motion to suppress was filed. State v. Flynn, supra, at p. 12[1].

The second reason for the invalidity of defendant’s third contention is that defendant made no such objection to the admissibility of state’s Exhibit A at the time it was offered and received into evidence. “Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions.” State v. Holt, 415 S.W.2d 761, 764[1, 2] (Mo.1967). He must also keep the question alive by timely objection. State v. Yowell, 513 S.W.2d 397, 402[2] (Mo. banc 1974). “The only exception under our procedural rule is where the defendant ‘had no reason to anticipate the evidence would be introduced and was surprised.’ ” State v. Yowell, supra, at p. 402. The latter case, on the cited page, contains a discussion of the reason for the requirement that an objection be made to the introduction of the evidence at trial. See also State v. Thompson, 490 S.W.2d 50, 52[2] (Mo.1973).

The judgment is affirmed.

All concur.

      . . The contention pertaining to the use of a peremptory challenge to remove the juror is without substance because there is no evidentiary basis in the record to support the claim; thus this claim is dismissed.” State v. Dethrow, 510 S.W.2d 207, 209 (Mo.App.1974).

      . “In order, however, to constitute a ground for a challenge to, or a motion to quash, the array, his objection must go to the whole array or panel, and not merely to individual persons on it; no objection lies to a venire because persons are wrongfully on it, since they may be excluded upon their examination on voir dire.” 47 Am.Jur.2d Jury § 229, p. 817.


author: PER CURIAM.

text:
    Virgil F. CLARK, Appellant, v. ESTATE of Van H. POWELL, Deceased, Respondent.
    No. 10095.
    Missouri Court of Appeals, Springfield District.
    Aug. 17, 1976.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for appellant.
    David James Markel, Poplar Bluff, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

Appellant Clark’s claims against the Estate of Powell were denied by the Probate Court and on appeal to and trial by the Circuit Court of Butler County the claims were denied and judgment entered in favor of the estate. In this appeal the appellant’s single point is that the evidence was not sufficient to support the trial court’s judgment.

We first note appellant’s brief falls short of compliance with Rule 84.04, V.A. M.R. Appellant’s statement of facts refers to matters which were not received as evidence by the trial court by reason of objections based upon the “Dead Man’s Statute” [§ 491.010, RSMo 1969]. Appellant does not challenge the exclusion of such evidence, and apparently assumes that his offers of proof constitute “uncontradicted evidence.”

Appellant, as claimant, had the burden of proof and the estate was not required to adduce evidence in order for judgment to be entered in its favor. The trial court, as trier of the facts, found the issues in favor of the estate and against the appellant-claimant. On the record presented we find no error of law. An opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).

All concur.


text:
    In re the MARRIAGE OF Kathy L. CHILTON, Appellant, and James C. Chilton, Respondent.
    No. 10364.
    Missouri Court of Appeals, Springfield District.
    Aug. 17, 1976.
    Donald E. Lamb, Centerville, for appellant.
    David G. Neal, Eminence, for respondent.
   PER CURIAM.

This action for dissolution of marriage was instituted by James C. Chilton, petitioner below and respondent here, against his wife Kathy L. Chilton, respondent below and appellant here. On April 19, 1976, judgment was entered in the trial court. Appellant’s after-trial motion was filed on April 21 and overruled on April 29, but her notice of appeal was not filed until the twelfth day thereafter, to wit, on May 11, 1976.

Rule 81.04 requires that a notice of appeal must be filed within ten days after the judgment becomes final to be effective. We recognize the apparent severity of dismissal but we are required to examine the record and determine whether we have jurisdiction to entertain the appeal. Kuhn v. Bunch, 529 S.W.2d 200, 201 (Mo.App.1975).

The appeal must be, and is, dismissed without prejudice to an application for leave to file a notice of appeal out of time.


author: GODDARD, Judge.

text:
    CNA MORTGAGE INVESTORS, LTD., Plaintiff-Appellee, v. HAMILTON NATIONAL BANK, Defendant-Appellant, and Venturi International, Inc., Intervening-Defendant.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 25, 1975.
    Certiorari Denied by Supreme Court June 1, 1976.
    Sam F. Fowler, Jr., John H. Fowler, Knoxville, for appellants.
    John M. Kamins, Detroit, Mich., Foster D. Arnett, Knoxville, for appellee.
   OPINION

GODDARD, Judge.

Hamilton National Bank, Defendant-Appellant, appeals an order granting summary judgment in favor of CNA Mortgage Investors, LTD., Plaintiff-Appellee, in connection with two irrevocable letters of credit issued by the Bank to CNA on the account of Venturi International, Inc. The Bank assigns two errors:

1. Numerous material issues of fact were placed in controversy by the pleadings, exhibits, and affidavits filed in this cause, and it was error for the Chancellor to grant Summary Judgment in favor of the Plaintiff CNA.
2. It was error for the Chancellor to refuse to allow Venturi to intervene in this suit as a matter of right under Rule 24.01 or by permission under Rule 24.02.

The Chancellor enfered a well-written and well-reasoned memorandum opinion which, insofar as it relates to assignment of error number one, we adopt as the opinion of this Court.

“In this case Plaintiff CNA Mortgage Investors, LTD brought suit against Hamilton National Bank to enforce payment of two letters of credit issued by Defendant bank in the respective amounts of $37,-500.00 and $34,000.00. By answer Defendant bank admitted that it had refused to pay the sight drafts issued by Plaintiff against the letters of credit and denied that Plaintiffs were entitled to payment.

“By agreed order Venturi International Inc. was permitted to intervene as a Defendant without Plaintiff waiving any objections thereto. Intervening Defendant Venturi filed an answer generally pleading the underlying facts and circumstances which brought about the issuance of the letters of credit and contending that Plaintiff was not entitled to be paid upon them. Plaintiff CNA filed a motion to dismiss Venturi’s petition to intervene. Later Ven-turi filed an amended answer stating its claim with more detail. Following argument, Plaintiff’s motion to dismiss as to Venturi was overruled without prejudice to renew its motion later. Plaintiff CNA thereafter filed another motion seeking to dismiss the petition of Venturi because it had no standing to intervene and for summary judgment against Defendant Hamilton National Bank because there is no genuine issue as to any material fact so as to entitle CNA to judgment as a matter of law. Venturi then moved as an alternative to its petition to intervene as a matter of right to be allowed to intervene by permission. Venturi also filed the affidavits of Adrian E. Ford a vice president of Defendant Bank and of Melvin T. Goldberger co-chairman of the board of Defendant Ventu-ri in opposition to Plaintiff’s motion to dismiss and for summary judgment. The motions of the parties were then brought on for argument and are here decided.

“The facts upon which the motions must be decided are based upon the pleadings, exhibits, answers to interrogatories, an-, swers to requests for admissions, and affidavits on file. It appears that Venturi had engaged in negotiations with Plaintiff CNA for two loans in connection with a property to be developed in Boca Raton, Florida. Venturi sought an 18 month first mortgage construction loan from CNA in the amount of $6,800,000.00, and a 24 month standby commitment for a land purchase loan in the amount of $7,550,000.00. Each of the proposed loans called for Venturi to make an application deposit with CNA. The first in the amount of $34,000.00 and the second in the amount of $37,750.00.

“Venturi’s co-chairman of the board, Melvin T. Goldberger, signed two ‘Loan Applications’ for Venturi on June 28, 1973. Plaintiff CNA and Venturi both admitted during argument that these loan applications had been executed and were in the typewritten form as set forth in Exhibits E and F attached to Plaintiff’s complaint, except that there had been certain penned in changes in the applications. The parties agreed that the changes in Exhibits E and F having been initialed by both parties were part of the agreement. However, there was a dispute over certain changes shown on the copies of the applications attached to Venturi’s pleadings. Venturi claimed they were part of the applications, and CNA claimed they were not because they were not initialed. Be that as it may, the decision here made is not affected by whether or not any disputed changes are deemed part of the loan applications.

“The two letters of credit were issued on the same date as the Loan Applications, June 28,1973. Both of them were irrevocable. The significant words of the letters of credit read as follows:

We hereby authorize you to value on the Hamilton National Bank of Knoxville, Tennessee for account of Venturi, International, Inc. up to the aggregate amount of [$34,000.00 in one case and $37,750.00 in the other] available by your draft(s) at sight for and in accordance with the terms of the Loan Application dated June 28, 1973. between the parties attached hereto and becoming a part of this letter of credit. This letter of credit will expire September 28, 1973. * * * Except as otherwise expressly stated herein this credit is subject to the Uniform Customs and Practice for commercial documentary credits fixed by the Thirteenth Congress of the International Chamber of Commerce. (1962 revision) Brochure No. 222. (Underlining supplied.)

Despite the above underlined statement in each letter of credit referring to the attached loan application, there was no loan application attached to either letter of credit when issued by the Bank.

“Plaintiff CNA thereafter issued its sight draft in the applicable amount for each letter of credit. When the sight drafts arrived at Defendant Bank, it refused to pay them because (1) the loan application was not attached to the letter of credit and (2) Venturi had advised CNA had not met the conditions required to receive payment. Specifically the Bank gave its reasons for dishonor as follows:

Returned 9/13/73 because Loan Application dated June 28,1973, did not accompany this letter of credit. Also, Venturi International, Inc., advises that CNA Mortgage Investors, LTD., has not satisfied the prerequisite conditions to draw on this letter of credit.

All parties have agreed in argument that Defendant Bank is bound by the reasons it gave for dishonor and cannot now rely on any different reasons.

“Plaintiff contends that under letter of credit law Defendant Bank must pay the letters of credit based upon the documents before the Court. Venturi and Bank claim that the loan applications were made part of the letters of credit by reference and therefore the underlying transaction may be considered in determining whether the Bank is bound to pay. Because of this Venturi also says there are issues common to Plaintiff’s claim against the bank and Venturi’s rights against the Bank so that it should be permitted to intervene.

“The questions raised should be decided prior to trial, if reasonably possible, because it appears that witnesses at great distances from Knoxville may be required to testify if the underlying transaction is to be considered. It would be a disservice to the parties and the witnesses to permit the parties to go to the great expense of preparing for trial should it be decided that the documents before the Court do not permit the introduction of proofs on the underlying transaction.

“A letter of credit is basically a device for making payment in commercial transactions upon presentation to the issuing bank of certain documents specified in the letter of credit. In merchandise sales the device permits the seller to arrange for payment against documents. For example, upon presentation of the seller’s sight draft and a bill of lading showing delivery of the merchandise together with any other documents required by the letter of credit, the issuing bank will forthwith pay the seller. The device is much used in foreign trade so that payment will be paid upon delivery of the goods even though the buyer may raise some objection to the goods. It is the delivery of documents to the bank, and nothing about the validity of the underlying transaction that controls payment by the bank. In their discussion of letter of credit law White and Summers say:

But if the presented documents comply then buyer’s issuing bank must pay, and this is generally true even if buyer, thinking he has hot news that a shipment is unconforming, instructs his bank not to pay drafts presented by seller’s agent. White and Summers, Handbook of the Law under the U.C.C. page 604.

The duties of a bank under a letter of credit are created by the document itself, and the bank has no discretion not granted therein. Talbot v. Bank of Hendersonville (Tenn.App.1972; cert. den.) 495 S.W.2d 548, 556.

“The undisputed facts in this case disclose that the payment of the letters of credit by their own terms was to be made upon the sight draft of Plaintiff CNA and in accordance with the loan applications attached to the letters of credit. The sight drafts were presented. Thus the problem in this case is whether or not there is anything about the wording in the letters of credit that creates an issue of fact requiring the presentation of proofs to resolve. For the purpose of deciding the motions the letters of credit will be deemed to incorporate all of the terms of the loan applications both with and without all changes marked therein. Defendants base their position upon the contention that the underlying transaction controls the obligation of the bank to pay because the terms of the loan applications are part of the letters of credit by reference.

“The Bank’s first ground for dishonoring the letters of credit was the failure to attach the loan applications to the sight drafts. Counsel for Defendants stated at argument, although the pleadings do not show, that the loan applications were not attached to the letters of credit issued by the bank because the parties were to attach them later. Whatever the reason, the bank issued the letters of credit without the applications attached although reciting otherwise. Under such circumstances the Bank is not in a position to complain that the beneficiary of the letters also failed to attach the loan applications to its sight drafts. By reciting that in the letters of credit that the loan applications were attached when they were not, the Bank set the standard for the transaction and evidenced its willingness to act at its peril insofar as any prerequisites for payment might be contained in the loan applications. Further, the most that can be said for failure to attach the applications is that it left the Bank in doubt as to what might be required in order to pay the letters, but does not itself constitute a ground for non-payment. In any event the motions are being considered upon the assumption that the terms of the applications were part of the letters, so the effect of the failure to attach makes no real difference. It is concluded that the first reason given by the bank for dishonor is without merit and raises no genuine issue of fact that would affect the outcome of the case.

“The second ground for dishonor given by the Bank is the alleged failure of Plaintiff CNA to satisfy the prerequisite conditions to draw on the letters of credit. This reason for dishonor states a ground, which if valid, would permit the introduction of proofs of the underlying transaction, and requires further consideration of the law governing letters of credit.

“Letters of credit are primarily contractual in nature and can thus generally be varied from the provisions contemplated by the Uniform Commercial Code. However, there is some limitation upon such variation. It is provided in T.C.A. § 47-5-114(1) that:

An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary.

This provision providing for the non-variability of the obligation to pay in accord with the terms of the credit is discussed by White and Summers:

The nonvariability of section 5-114(1) follows from the very nature of an irrevocable letter of credit; one of the basic purposes for which such letters are issued is to eliminate the risk to the beneficiary that the customer will refuse or halt payment because of alleged deficiencies in the beneficiary’s performance. (Of course, the parties could choose to issue a revocable credit.) White and Summers, Handbook of Law under the Uniform Commercial Code (1972) page 616.

After this statement, the authors go on to recognize that other provisions of the Code may be varied by agreement, saying:

Beyond the foregoing formal and substantive Article Five provisions, we believe that the parties may by agreement vary any of the other sections of Article Five. Indeed, no fewer than fifteen subsections specifically include the phrase ‘unless otherwise agreed.’ The general principle of freedom of contract reigns in Article Five. Ibid.

It is concluded that the terms of the letter of credit control. The documents are supreme. Usually they require payment upon presentation of documents. However, if they require that the underlying transaction be considered, then such proofs should be admitted. Defendants have cited a number of cases that recognize that where a letter of credit so provides it may incorporate the underlying transaction. Kingdom of Sweden v. New York Trust Co., 197 Misc. 431, 96 N.Y.S.2d 779, 790 (1949); Sztejn v. J. Henry Schroder Banking Corp., 177 Misc. 719, 721, 31 N.Y.S.2d 631, 633-4 (1942); Consolidated Sales Co. v. Bank of Hampton Roads, 193 Va. 307, 68 S.E.2d 652, 658 (1952); E. E. Huber & Co. v. Lalley Light Corp., 242 Mich. 171, 218 N.W. 793, 794 (1928). The effect of all of this in this case is that, if the letters require that the underlying transaction be considered, the summary judgment must be denied. However, if the documents construed most favorably to Defendants do not call for consideration of the underlying transaction, there is no factual issue to be decided and the summary judgment must be granted.

“Turning to the loan applications it appears that most of the provisions of the loan applications have to do with Venturi’s obligations under the commitments it was seeking from CNA and do not purport to deal with what was required to cause payment of the letters of credit. There are also some provisions that deal with the type of loans that CNA was to obligate itself to make, and none of these provisions have anything to do with the requirements for payment of the letters of credit.

“The only loan application provision which appears to have a possible bearing on the question is the paragraph in each application entitled: ‘Application Deposit:’ That paragraph states:

APPLICATION DEPOSIT
L/C
A cash deposit of ¾ 1~$37.500.001 F$34.-000.001 payable to CNA Mortgage Investors Limited is enclosed herewith. In the event a commitment is issued by CNA Mortgage Investors Limited on the foregoing terms, or upon any other accepted terms, the deposit this date paid shall apply against CNA Mortgage Investors Limited loan charges. If this loan is not closed due to cause not the fault of CNA Mortgage Investors Limited, the deposit mentioned above shall be retained by CNA Mortgage Investors Limited as liquidated damages and not as a penalty.

As can be seen this paragraph first provides that a deposit is enclosed with the application; next, it provides that if the commitment is issued by CNA, the deposit will apply against loan charges; and finally, it says that if the loan is not closed not due CNA’s fault CNA may retain the deposit as liquidated damages. There is nothing in these provisions connecting the letters of credit to the underlying transaction. There is no statement that, if no commitment is made, the deposit is not to be made, nor that the letters of credit are not to be honored. Had they intended, the parties could have arranged to have the letters of credit read something like this: ‘This letter to be paid upon presentation of a copy of CNA’s loan commitment for $.. to Venturi.’ The thrust of the language used is that a deposit in some form is a precondition to the application, and disposition of the deposit is provided for in two circumstances having nothing to do with letters of credit. There is nothing further. The typed language does require forwarding of the deposit in money with the application, and the parties changed this by crossing out the term ‘cash’ and inserting the term ‘L/C.’ But there is nothing in this change which incorporates the underlying transaction to the letters of credit.

“Considering all of the documents, the tenor of the letters of credit is that they are to be paid upon presentation of a sight draft and nothing further is required by virtue of considering the loan applications part of the letters. There is no specific requirement that anything documentary or otherwise be presented to the Bank except sight drafts. In view of the documentary nature of letters of credit, very clear language would be necessary to require that something more than the presentation of specified documents is needed for payment. If the rule were otherwise, the usefulness of the letters of credit would be severely diminished and the great advantage of making payment against documents in business transactions would be lost. The cases cited by Defendants recognizing that a letter of credit can incorporate the underlying transaction do not actually find in these cases that it is incorporated. It is concluded that on the face of the documents the Bank is obligated to pay the letters of credit, and evidence of the underlying transaction is not relevant or admissible.

“So that there will be no misunderstanding of this decision no finding as to the obligations between Venturi and CNA is made. This decision is limited to the narrow question as to whether or not the Bank must pay the letters of credit.”

The Bank concedes that if the summary judgment is sustained, its second assignment of error need not be considered.

Accordingly, the assignments of error are overruled and the Trial Court affirmed. The costs of the cause are taxed to the Bank.

PARROTT, P. J. (E.S.), and SANDERS, J., concur.


author: NEARN, Judge.

text:
    WARREN BROTHERS COMPANY, Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Feb. 6, 1976.
    Certiorari Denied by Supreme Court Aug. 30, 1976.

      John J. Hollins, Jr., Nashville, for appellant.
    William F. Howard, Nashville, for appel-lee.
   NEARN, Judge.

This is a dispute over the terms of a contract.

Metro desired that certain improvements be made to a portion of Charlotte Avenue in Nashville. Under circumstances later set out, Warren Brothers agreed to do the work. A part of the work consisted of laying storm and sanitary sewers. Trenches had to be excavated in order to lay the storm and sanitary sewer lines. Rock had to be excavated in order to dig the trenches. Warren Brothers sought separate payment under the “rock excavation” provision of the contract. Metro refused payment claiming that the rock excavation provision was inapplicable when excavating for storm and sewer lines. It was the position of Metro that the bid price of Warren Brothers included work for all excavation of either rock or common dirt when excavating for sewer and storm lines, that the bid on the sewer items included what rock excavation was entailed in that work.

Suit was filed by Warren Brothers seeking the additional payment under the contract for rock excavation, as well as payment for the cost of some cast iron fittings.

The Chancellor awarded judgment against Metro for the cast iron fittings in the amount of $82,706.00. Metro makes no complaint about the judgment for the cast iron fittings and such forms no part of this appeal. However, the Chancellor refused to award judgment in favor of Warren Brothers for rock excavation and Warren Brothers appeals from that portion of the judgment. It is stipulated that the rock excavation dispute involved $119,754.30.

Warren Brothers has filed five Assignments of Error with this Court. They raise but two issues for determination. The first is: Was the Chancellor correct in holding that under the contract Warren Brothers was not entitled to rock excavation payment? The second issue is: If the Chancellor was correct in the first instance, did he err in failing to give Warren Brothers relief under the theory of quantum meruit ?

The bid contract document in Item I, “Unclassified Excavation”, under section 1.01 “Scope”, states that the work to be performed “shall consist of clearing and grubbing, loosening, loading, removing and disposing, in the specified manner, of all wet and dry materials (including rock) which are necessary to be removed for construction purposes; —.” Section “1.04 Rocks and Boulders” provides “(a) Rock shall be excavated over the horizontal limits of excavation and to a depth of not less than 6 inches below the bottom of pipe sewers — (b) Drilling and blasting operations shall be conducted with due regard for the safety of persons and property — .” Section “1.06 Excavation for Trenches, Manholes and Structures” provides “(a) Common excavation for sewer lines shall consist of the excavation necessary for the construction of sewer and other pipe lines and all appurtenant facilities therefor, — ”.

Section “1.15 Measurement and Payment” provides “(a) Trench excavation, backfill, except crushed stone backfill, and bedding will be considered an integral part of the work of sanitary or storm sewers and no separate payment therefor will be allowed — ”.

In Item II headed rock excavation under section “2.01 Scope” the following is found:

“Rock excavation shall cover the removal of all rock materials as hereinafter defined which shall require removal from their original beds within the limits hereinafter defined, for the purpose of construction as shown on the plans or set forth in these specifications. It shall include all drilling, blasting and all other items incidental to such removal, and also the necessary disposal of excavated materials as specified for Item I, Common Excavation.”

Section “2.05 Payment” provides “Payment for rock excavation performed under these specifications shall be made for the quantities determined in the manner specified above at the contract unit price per cubic yard as listed under Item II of the Contract Pay Items — ”.

Item II of the Contract Pay Items provided for payment of rock excavation at $30.00 per cubic yard.

By separate addendum to the contract, Warren Brothers also agreed to install street light bases at $178.34 each and pull boxes at $155.00 each. The addendum also explicitly provided that any rock excavation necessary in the installation of bases and boxes would be in compliance with “Item II, Rock Excavation and shall be paid for at the Contract Unit Price per cubic yard”.

As to Item II rock excavation the addendum then provided:

“This Item shall pertain to rock removed for Street Light Bases, Pull Boxes, Retaining Walls and other Structure Excavation, but shall not pertain to the installation of Storm Sewers, Sanitary Sewers, Manholes, Inlets or Water Mains and their Appurtenances.” (The emphasis is not supplied by the Court. The word “not” was underlined by typewriter in the original document.)

The Chancellor found the following to be the events and their sequence:

“1. During the year 1972 Metro advertised for contractors to bid on construction of certain improvements to be made for the widening and improving of Charlotte Avenue between Fourteenth Avenue North and Twenty-Fourth Avenue North in Nashville.
“2. Warren obtained from Metro copies of the proposals, contract documents, plans and specifications. Following receipt of the above documents Addendum No. 1 was mailed to Warren and received on January .5, 1973.
“3. Warren submitted a sealed bid on the forms provided by Metro and the bids were opened on January 11, 1973, and Warren was low bidder.
“4. By letter of January 12, 1973, Warren agreed to accept the provisions of Addendum No. 1 with the understanding that a contract supplement would be prepared.
“5. On March 8, 1973, the parties signed a contract, drawn and prepared by Metro, covering the work to be done on the project.
“6. On March 12, 1973, contract supplement No. 1 was signed by the parties.
“7. On April 16, 1973, at a pre-con-struction conference the question arose as to whether rock excavation encountered in storm sewer construction would be paid for as a separate item.
“8. On April 17, 1973, Metro by letter notified Warren that “there shall be no extra payment for rock excavation encountered in the storm sewer construction.”

The evidence does not preponderate against the Chancellor’s findings.

It is the position of Warren Brothers that section “1.01 Scope” simply states in general terms the work to be done, and that Warren Brothers did perform that work. That section 1.04 specifically provides for rock excavation work; that section 1.06 specifically provides for common excavation work; and that the term “Trench Excavation” as used in section 1.15 governing payment applies only to common excavation work. Therefore, Warren Brothers argues, it is entitled to separate payment for the rock excavated in digging the trenches at $30.00 per cubic yard as provided in section 2.05 of the rock excavation item. Warren Brothers argues that if that is not what the contract provides, it certainly is not clear on the point and should be most strongly construed against the drafter, Metro, and in favor of Warren Brothers.

Warren Brothers further argues that Metro is “estopped to take the position that the addendum takes rock out as a pay item under the storm sewer provision of the contract.”

The factual basis for the estoppel argument is that when Metro advised Warren Brothers that their bid was incomplete because there was no bid on the addendum, Metro also advised Warren Brothers to the effect that if it had a good contract without the addendum, it would have a better contract with the addendum. Based upon the representation that the addendum did not adversely affect the original bid, Warren Brothers agreed to do the bases and boxes work for $11,367.08 and did not bother to read the terms of the written addendum before signing same.

Metro argues that there is no ambiguity in the contract document and that it “clearly” provides that Warren Brothers is to remove “all wet and dry materials (including rock)”. Further, if rock is encountered in trenching for the water and sewer lines, it is to be removed in compliance with subsections (a) and (b) of section 1.04 because section 1.06 defines common excavation for sewer lines as that “excavation necessary for the construction of sewer and other pipe lines” and describes such necessary excavation as “Excavation for Trenches”. Therefore, where subsection (a) of section 1.15, governing measure of payment, provides, “Trench excavation — will be considered an integral part of the sanitary or storm sewer and no separate payment therefor will be allowed”, it means just that.

Metro further argues that if there were any ambiguity in the contract regarding the payment for the excavation of rock encountered in trenching, all doubt must vanish when the addendum is read.

Proof was adduced by Metro to the effect that Item II, rock excavation, was placed in the bid information because the bid conditions provided that the accepted bidder also agreed to perform reasonable additions or changes ordered by Metro and that any such additions or changes would be covered by Item II, which provided for payment at the contract unit price.

We deem it unnecessary to decide whether the initial bid contract document was ambiguous prior to the incorporation of the addendum. We agree with counsel for ap-pellee and hold that if any ambiguity did exist, it was eliminated by the addendum. We further hold that appellee is not es-topped to rely upon the addendum.

In effect, the addendum states that the two added items (bases and boxes) will be the only items of excavation under the contract Item II, rock excavation, to which the Contract Unit Price of $30.00 per cubic yard will apply. The addendum was accepted and signed by Warren Brothers before any work was performed.

The initial bid of Warren Brothers was unacceptable because the bid was incomplete. It did not contain a bid for the bases and boxes although separate notices had been sent by Metro to prospective bidders that the bases and boxes would be part of the contract. Rather than reject the bid of Warren Brothers, Metro gave Warren Brothers the opportunity to make a bid on the omitted work. Warren Brothers claimed that it did not have or had not received a copy of the notice to prospective bidders which set out the additional work to be included in the bid. Metro sent by messenger another copy of the notice to Warren Brothers in order that Warren Brothers could complete its bid. This notice of additional work contained the same language that was finally contained in the addendum to the contract which was executed by Warren Brothers as Contract Supplement No. 1. It provided that Item II, rock excavation, applied to the additional work, “but shall not pertain to the installation of Storm Sewers, Sanitary Sewers, Manholes, Inlets or Water Mains and their Appurtenances.” Warren Brothers claimed that it did not read the details of the notice but rather relied upon the statement of Metro that if Warren Brothers had a good initial contract, it would have a better one with the addendum. Warren Brothers submitted a bid in the amount of $11,367.08 for the additional work and it was agreed that the additional work agreement would be later reduced to writing. This was done and the written agreement on the additional work, Contract Supplement No. 1, contained the same verbiage as the notice. However, Warren Brothers admits that it did not read the agreement but relied upon the representations of Metro.

Estoppel is based on reliance upon the statement of another without having the opportunity to know the truth and action based on that reliance which results in detriment to the actor. Allen v. Neal (1965) 217 Tenn. 181, 396 S.W.2d 344; Freeman v. Martin Robowash, Inc. (1970 W.S.) 61 Tenn.App. 677, 457 S.W.2d 606. Warren Brothers had every opportunity to know the true intendment of the contract for it was expressed both in the addendum notice and the signed contract supplement. Yet, Warren Brothers admittedly failed to exercise rudimentary business practice by failing to read the written terms of the addendum bid, which terms were given to it before the bid was made, and by failing to read the contract supplement which was given to Warren Brothers for signature and return. Warren Brothers had every opportunity to know the truth but failed to exercise those opportunities. The doctrine of estoppel is not available to Warren Brothers. See Hankins v. Waddell (1943 E.S.) 26 Tenn.App. 71, 167 S.W.2d 694, for a similar holding under analogous circumstances.

We find without merit the Assignment of Error addressed to the Chancellor’s failure to grant relief under the theory of quantum meruit. The pleadings do not raise any claim based on quantum meruit and neither does the proof. The first mention of such right to recovery is found in the motion for a new trial. Fairness requires that if such claim or theory of recovery is to be made, the defendant should have notice thereof in order that it might be prepared to present proof on the issue. See Connecticut Indemnity Co. v. DeGalleford (1971) 225 Tenn. 406, 470 S.W.2d 5. In addition, if the Chancellor was required to grant a recover based on quantum meruit he was also required to have proof presented upon which he could base such recovery. There is no proof in this record of the cost of the plaintiff in trenching for the lines. There is no proof in this record of whether, plaintiff lost money or made a profit on the job. In short, there is only the contract unit price shown in the proof. A recovery on the theory of quantum meruit is not based on the contract price, but is based on the actual value of the services rendered. Bauman v. Smith, et al. (1972 Tenn.App., W.S.) 499 S.W.2d 935.

All Assignments of Error are overruled and the decree below is affirmed with costs of appeal adjudged against appellant and surety.

CARNEY, P. J., and MATHERNE, J., concur.


author: SANDERS, Judge.

text:
    Marion Stevens SMITH, III v. OMAHA INDEMNITY COMPANY.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 20, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.
    Goins, Gammon, Baker, Robinson & Gris-ham, Chattanooga, for appellant.
    Atchley, Atchley & Cox, Chattanooga, for appellee.
   OPINION

SANDERS, Judge.

The Defendant has appealed from a decree of the Chancery Court holding that death resulting from a heart attack was accidental death within the meaning of its insurance policy.

Marguerite McWhorter Bennett, now deceased, purchased a sickness and accident policy of insurance issued by the Defendant-Appellant, Omaha Indemnity Company. The policy was purchased at Love Field Airport in Chattanooga when the deceased was departing on an airline trip to Europe. As pertinent here, the policy provides for payment of $15,000.00 for accidental death occurring while the policy is in force.

The deceased returned from Europe and died of a heart attack while the policy was still in force.

The Plaintiff-Appellee, Marion Stevens Smith, III, who was the named beneficiary of the policy, filed suit in the Chancery Court of Hamilton County to recover the face amount of the policy plus a bad-faith penalty.

The Defendant contended the deceased’s death was not accidental and there was no coverage.

The case was tried before the Chancellor who found the fatal heart attack was an accident as contemplated by the policy and awarded judgment for $15,000.00. However, he disallowed the bad-faith penalty.

Defendant has appealed and assigned the action of the Chancellor as error.

There is no dispute as to the facts in the case. On June 8, 1974, the deceased purchased the policy of insurance and delivered it to the Plaintiff. The term of the policy was for 24 days. The deceased returned from Europe some two or three days before the policy expired. She was 76 years of age and complained of being exhausted upon her return. The day following her return she went to the beauty parlor to have her hair washed and set. After her hair had been washed she was placed under a hair dryer. Some 30 or 40 minutes later when one the beauticians went to remove the pins from her hair, she found her sitting under the dryer apparently asleep. However, she was dead, having passed away very quietly with a heart attack.

The policy of insurance provides for payment of $15,000.00 in case of accidental death and payment of $20.00 per day hospital expenses in the event of illness. As pertinent here, Part III of the policy provides: “Specific Loss Benefits. When the Insured sustains injuries which result in any of the following losses within one hundred days after the date of the accident, the Company will pay for loss of: Life. ...” $15,000.00. Under Part I of the policy, it provides: “Definitions. ‘Injuries’ means accidental bodily injuries received while this policy is in force and resulting in loss independently of sickness and all other causes.”

The proof shows the deceased had not been involved in an accident or received any personal injuries prior to her death. There was no contention by the Plaintiff that the deceased had been injured. There was a stipulation between the parties that a person the age of the deceased would be tired after a trip from Lisbon to Chattanooga in one day and, being tired, and at her age, would be more susceptible to a heart attack than a person who had not taken such a long trip.

The Chancellor, in his memorandum opinion, said: “There was not an ‘accident or injury’ at Pickett’s Beauty Salon. The Court is very positive that those facts are true but it does not address itself to the legal meaning of whether or not her death was a result of a personal accident or sickness or injury. The plaintiff himself testified that she did not have an accident or injury while on the premises of Pickett’s Beauty Salon. There is no argument about that whatsoever.

“Now, the Court must make its decision on whether or not a coronary, which was fatal, coming at the conclusion of a trip from Lisbon to Chattanooga when the lady was tired — she stated she was exhausted to the plaintiff, stated she was very tired to Mr. Lash, the beautician — and whether or not that fatal heart attack was in fact an accident or injury as contemplated by the plaintiff and as contemplated by the policy itself. . . . The Court is of the opinion that the fatal heart attack is and was an accident and injury as contemplated by the written policy and the defendant’s understanding and the defendant’s belief or position with regard to its belief, which was not spelled out in the written contract, is not controlling.

We cannot agree with the conclusion of the Chancellor. We think it is abundantly clear that before there can be a recovery under the policy death must have resulted from injuries received. Also, that death must have resulted from those injuries and independently of sickness and all other causes.

In construing insurance contracts, the words of the policy are to be given their usual and ordinary meaning. Moore v. Life & Casualty Ins. Co., 162 Tenn. 682, 40 S.W.2d 403.

The Chancellor, in reaching his decision, was of the opinion the case of Travelers Ins. Co. v. Ansley, 22 Tenn.App. 456, 124 S.W.2d 37, was controlling in the case at bar.

Again, we cannot agree. In the Ansley case death was caused from chloral and bromide poisoning resulting from the cumulative effect of medicine which the deceased took voluntarily without foreseeing the fatal results. The court held this to be an accidental death. We find no correlation between the two cases.

We have not been cited to any case, nor have we found any, where death from a heart attack was held to be an accidental death. To so hold in the case at bar would be neither logical nor reasonable and would create chaos in the underwriting field of accident policies.

The assignments of error are sustained. The judgment of the Chancellor is reversed and the complaint is dismissed.

The cost of this appeal and the cost in the Trial Court are taxed to the Appellee.

PARROTT, P. J., and GODDARD, J., concur.


author: DAVID TOM WALKER, Special Judge.

text:
    CONCRETE SUPPLY COMPANY OF OAK RIDGE, INC., Appellant, v. UNION PEOPLES BANK et al., Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    April 14, 1976.
    Certiorari Denied by Supreme Court Aug. 6, 1976.
    Philip P. Durand, Knoxville, for appellant.
    W. Clark Meredith, Oak Ridge, for appel-lees.
   OPINION

DAVID TOM WALKER, Special Judge.

The Plaintiff furnished concrete material to the owner-builder, Ridge Builders, Inc. to be used in certain construction work. The project was abandoned before completion. Ridge Builders placed deeds of trust on the property with the Defendant Union Peoples Bank. The Bank had no notice that Plaintiff had furnished materials prior to the date of the deeds of trust. The Plaintiff’s lien was filed subsequent to the deeds of trust, but within 90 days of the abandonment by the owner. The Trial Court resolved the issue of the priorities of these lienholders in favor of the mortgagee. We affirm.

The following facts in this case were stipulated. Plaintiff contracted with the Defendant Ridge Builders to furnish concrete materials to be used in the construction of certain buildings owned by Ridge Builders. The materials were delivered and used as follows: Lot 2 — $214.62; Lot 3 — $539.10; and Lot 33 — $1,276.34.

The deliveries of materials to the job sites began on the following dates: Lot 2 — July 12, 1974; Lot 3 — August 12, 1974; and Lot 33 — July 3, 1974.

The delivery of material ceased more than 90 days prior to filing of Plaintiff’s lien.

Union Peoples Bank, pursuant to the request of Ridge Builders, loaned monies upon the structures and took deeds of trust which were recorded as follows: Lot 2— August 2, 1974; Lot 3 — August 26, 1974; and Lot 33 — July 9, 1974.

Union Peoples Bank, being unaware that the Plaintiff had supplied construction materials to Ridge Builders, took the deeds of trust in good faith for a valuable consideration and without notice of Plaintiff’s claim.

Subsequently, all work on the project was abandoned by Ridge Builders, with the buildings being unfinished.

Plaintiff filed its materialman’s lien on the 7th day of March 1975, claiming that it was filed within 90 days of cessation of construction and abandonment.

Union Peoples Bank properly foreclosed its deeds of trust with the knowledge of Plaintiff on the 14th day of March 1975. Suit has been filed by Plaintiff to determine its rights as to Union Peoples Bank and Ridge Builders.

No answer or appearance having been made on behalf of Ridge Builders, a default judgment in the amount of the liens was awarded to Concrete Supply Company against Ridge Builders.

The only other evidence considered by the Trial Court was an affidavit by James L. Roberts, president of the plaintiff corporation. The affidavit spoke only of the inconvenience and hardships placed upon materi-almen by T.C.A. 64-1112.

In order to protect himself under the statute, the materialman must file the lien “within ninety (90) days after the building or structure or improvement is demolished, altered and/or completed, as the case may be, or the contract of the lienor expires or is terminated or he is discharged.” A proper interpretation of this statute will determine the rights of these parties. The particular structure involved in this case was never completed, and the delivery of material ceased more than 90 days prior to the filing of the Plaintiff’s lien.

In First State Bank v. Stacey, 37 Tenn.App. 223, 261 S.W.2d 245 (1952), this Court disposed of a similar factual situation as follows (37 Tenn.App. at 227, 261 S.W.2d at 247):

Thus it fixed one of two alternative periods for such filing: (1) within ninety days after the building is demolished, altered, or completed; or (2) within ninety days after the claimant’s contract expires or is terminated or he is discharged. Where the building is completed he may file his claim within ninety days thereafter. But where it is not completed he must file his claim within ninety days after his contract is terminated. Cf. Bird Bros. v. Southern Surety Co., 139 Tenn. 11, 15-16, 200 S.W. 978.
Since the house was never completed, appellant was required to register his claim within ninety days from the completion or termination of his contract . But . . there was no proof that he filed his claim within ninety days from that time. Upon this ground the Chancellor properly denied his lien. Id., 261 S.W.2d at 247.

The Plaintiff insists that this Court’s interpretation of T.C.A. 64-1112 was illogical and unrealistic and that it defeats the intention of the statute. It urges that the phrase . . demolished, altered, or completed,” should be interpreted to include abandonment, so that a claim such as the one involved in this case would not be defeated.

The Supreme Court of Tennessee in Bird Brothers v. Southern Surety Co., 139 Tenn. 11, 200 S.W. 978 (1917), interpreted Section 3540 of Thompson-Shannon’s Code (presently T.C.A. 64-1115), which provides the same alternate periods for filing and giving notice of mechanic’s liens as does Section 64-1112. The Supreme Court refused to hold that abandonment should be considered the equivalent of completion. Chattanooga Lumber & Coal Corp. v. Phillips, 202 Tenn. 266, 304 S.W.2d 82 (1957), held that statutes concerning mechanic’s and materialman’s liens are to be construed in pari materia. These statutes are not to be considered independently of one another.

The doctrine of stare decisis requires this Court to affirm the action of the Chancellor.

The decree is affirmed with the cost taxed to the Appellant.

SANDERS and GODDARD, JJ., concur.