author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lonnie Lee RICHARDS, Defendant-Appellant.
    No. 36142.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 2, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Richard Moore, Public Defender, and Melvin G. Franke, Public Defender, 20th Judicial Circuit, Union, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean and Timothy J. Verhagen, Asst. At-tys. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Union, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Lonnie Lee Richards, was charged, tried and found guilty of the offense of robbery in the first degree. § 560.120. In accordance with the jury verdict he was sentenced by the circuit court of Franklin County to six years in the department of corrections. He appeals. For reasons hereinafter stated, we affirm.

A jury could reasonably find that during the afternoon of January 13, 1973, Franklin Blanton, a farmer and the victim of the alleged offense, was in St. Clair, Missouri, at the “Coon Hound Corral” (sometimes referred to as the “Okay Corral” or the “Ozark Tavern”) drinking several beers. He arrived at the tavern at about 3:00 p. m. When he went to the tavern, he had “$20 on me.” While there, he “got to talking to Jim Simmons,” a friend of appellant, Lonnie Lee Richards, and Robert Lee Branson. Jim Simmons also has a brother — Don. Mr. Blanton indicated to Jim Simmons that he “would like to go to Sullivan,” and Jim Simmons “up and said, ‘Well, I think I know a couple guys going up there.’ ” Mr. Blanton told Jim that he would “give $3” for the ride to Sullivan. According to Mr. Blanton, Jim Simmons then left the tavern, came back a little later and told him the ride was “out there.” Mr. Blanton left the tavern; a “blue car with a light vinyl top” was in front; two men were in the car, and he entered the back seat on the passenger side. The car “took off.” During the ride, according to Mr. Blanton, no conversation took place. While still in St. Clair, one of the men in the car — a blond — later identified as the appellant-Richards, indicated that he had to go to the rest room, but instead of stopping at a filling station, the car stopped “behind a gray house.” The “blond” got out of the car, and Mr. Blanton and the other man waited. They waited “five or ten minutes.” The driver pulled around the building and headed down the street. As they approached the intersection of St. Clair and Duckworth, Mr. Blanton saw “him [the appellant] coming out of the house below there. Out of a big white house.” The blond got back into the auto, and the three started for Sullivan. On Interstate 44, appellant-Richards indicated that he was “getting sick,” so they pulled off to the side. When they did so, the two men, according to Mr. Blanton, “had the guns on me.” “[T]hey both turned around facing me. I was in the back seat . . .” The blond had both guns and “throwed the other one to the black headed man [Bran-son].” One gun looked like “one of these little Dillingers [sic] you can hold in your hand. . . . But the other one looked like a great big barrel staring me in the face.” It looked “blue.” They told “me, says, ‘Shed your coat. Give me your billfold and empty your pockets.’ ” “They told me, they said, ‘Old man, you won’t be needing your billfold, the place you’re going.’ ‘Old man, we are going to kill you.’ ”

The two men took a blue jacket with a fur collar and $18.00. The men handed the wallet back and Mr. Blanton was told, “ ‘Now get out, Old Man.’ ”

Mr. Blanton walked to his “boss’ ” home, and the sheriff was called. Eventually, two officers came and they and Mr. Blanton proceeded to the tavern to see if the men were there, but they were not. They then proceeded to the “white house,” and while in the house, Mr. Blanton was shown a “school book” from which he identified the “blond” — Lonnie Lee Richards. The next day, Mr. Blanton was called to the sheriff’s office and there identified that defendant in a lineup.

Eventually, the appellant was charged for the alleged offense, and trial was held on January 4, 1974.

During the voir dire examination, the prosecutor in addressing the panel stated that:

“. . . His Honor indicated briefly that this charge involves an alleged robbery on the 13th day of January, 1973, here in Franklin County. More specifically, it was a robbery of the person of one Franklin Blanton in an area up close to the Trade Winds on 1 — 44. Now, is there anybody here on the panel who has any prior knowledge or information about this particular offense? Anybody remember hearing about it, reading about it or anything of that nature? I will take you, if you don’t mind, by rows. Let’s see that’s Mr.—
JUROR POHLMAN: Pohlman.
[Prosecutor]: Mr. Pohlman. Where was it — without going into any detail, how was it you have personal knowledge of this offense?
JUROR POHLMAN: I know Frank [Blanton] pretty well.
[Prosecutor]: You know Mr. Blanton?
JUROR POHLMAN: Yes.
[Prosecutor]: Has he discussed this case with you on prior occasions?
JUROR POHLMAN: No.
[Prosecutor]: You are just aware of the fact that it did happen? [Emphasis added.]
JUROR POHLMAN: Yeah.
[Prosecutor]: Is that it? And the fact that you know Mr. Blanton, would that in any way affect your ability to sit here as a fair and impartial juror? In other words would you give any more credibility to Mr. Blanton’s testimony than you would any other person’s?
JUROR POHLMAN: I wouldn’t think so.
[Prosecutor]: In other words you think you could keep an open mind and give Mr. Blanton the same amount of credibility or noncredibility as you would any other witness, depending upon their demeanor and what have you?
JUROR POHLMAN: Yeah.”

Defense counsel sought to challenge Jur- or Pohlman for cause because “he has already committed to the knowledge there was a crime, which is one of the things— which is really the big issue in the case. I think Mr. Pohlman should be disqualified for cause. He’s already formed the opinion that there was a crime.” The prosecutor then said, “I think he’s probably right. I think it was a bad choice of words on my part.” The court replied, “Yes, it was but I’m not going to disqualify him.” The court thereupon overruled the challenge for cause.

During the trial, Mr. Blanton was interrogated by the prosecutor during his examination in chief as to whether he [Blanton] had been “convicted of the crime of the abominable and detestable crime against nature in 1955.” Mr. Blanton admitted that he had been.

On cross-examination, defense counsel desired to go into some detail concerning the “abominable, detestable crime against nature,” and objected to the court’s ruling limiting “my cross-examination of this man about his conviction on this abominable and detestable crime against nature. . . . ” The court did not permit counsel to go into the details. However, in the defendant’s case, Mr. Elmer Maschmann, the clerk of the circuit court of Franklin County, was called and permitted to read the information filed against Mr. Blanton, which detailed the offense “against nature.” This was permitted, although over the objection of the prosecutor.

James Simmons testified for the state. In effect, he corroborated the testimony of Mr. Blanton relative to the ride to Sullivan, and testified that after his conversation with Blanton, he went down to “Fuzzie Sohn’s” tavern to get “Robert [Branson] and them to see if they would take him up there [to Sullivan].” Simmons told them that Blanton said “he would give them $3 to take him up there.” Simmons, together with Robert Branson and Lonnie Lee Richards, went back to the “Coon Hound Corral,” told Blanton and observed Blanton enter the car.

During the trial the state called the stepfather of the defendant — Mr. Melvin Greeley, who lived in the “white house” in St. Clair. He testified that on the evening of the 13th two deputies and Mr. Blanton came to his house. Mr. Blanton looked over some pictures in a scrapbook, and after being asked some questions, Mr. Greeley went to the kitchen and “checked to see if my camping — little blank pistol and a pellet BB pistol were in the cabinet.” One was “sort of a blue looking gun.” One gun “might have been six inches long or five inches long. And the bigger gun might have been nine inches long or ten inches long.” Upon examination, the guns were not there. No objection was made at this time. At the beginning of Mr. Greeley’s cross-examination, however defense counsel objected to Mr. Greeley’s testimony concerning the missing guns because “it has not been connected with the gun described by the alleged victim as being used by the Defendant and his accomplice.”

At first the trial court indicated that the guns had not been “connected,” but after the prosecutor reminded the court that Mr. Blanton’s testimony indicated the appellant went into the “white house,” the court overruled the objection, since “[y]ou [defense counsel] sat there and let him ask all the questions about it. In view of the fact that the Defendant made no objection to the questions and answers at the time they took place I’m going to let that stand.”

Two deputies testified for the state— Deputy Sheriff Michael Scott and Deputy Sheriff Roger Bartolo. Deputy Scott testified that he responded to a call on the evening of January 13, to go to the home of Mr. Armstrong (presumably Mr. Blanton’s “boss”). He was met by the Armstrongs and Mr. Blanton. After some conversation, the two deputies left with Mr. Blanton and went to locate the two men. They finally went to the Greeley residence. While there, Deputy Scott testified that Mr. Blan-ton looked at a book containing pictures, and Blanton “selected a picture from a page contained within the book.” Deputy Scott saw the picture selected by Blanton — it was that of Lonnie Lee Richards. An arrest order was then put out. The following day, Deputy Scott went to the St. Louis City Jail, where the defendant was being held, and took him into custody and returned to Franklin County. A lineup was held, which Mr. Blanton viewed. Deputy Scott was permitted at trial to testify that Mr. Blan-ton made an identification of Lonnie Lee Richards after viewing the lineup.

Deputy Bartolo also was permitted to answer a question “whether or not Mr. Blanton identified anyone in that lineup.” He answered, “Yes, sir, he did.” However, he never indicated who was identified by Blanton.

The defendant’s case directly contradicted the testimony of Franklin Blanton. The theory of the defense was that no robbery was committed, no guns were used, no force was threatened. The theory was that after defendant-Richards, Branson and Blanton arrived in Sullivan, Blanton gave them only $2.00 for the ride when he had promised $3.00, so if he didn’t give the other dollar “we would just turn right around and take him back to St. Clair where we found him and just go on about our business. So he did give the other dollar.”

Robert Lee Branson testified that he was at “Fuzzie’s” drinking with Lonnie and Don Simmons when Jim Simmons came to him and asked him if he wanted to take a man to Sullivan. He did not want to do so but walked to the “Okay Corral” [Coon Hound] and talked to “the guy.” He had a beer with Jim Simmons and Blanton. Finally, Branson agreed and went back to get the car. Branson also said that Blanton would give him $3.00 to take him to Sullivan. When they got to Sullivan, Blanton only gave them $2.00, and Branson requested the other dollar and said if he didn’t get it he would “turn right around and take him back to St. Clair . . . .” He denied having any guns, denied threatening Blan-ton with a gun and denied taking any money except the $3.00. He also denied stopping at any time on the way to Sullivan, and claimed they never stopped at the “white house.” Throughout the defense, it was brought out the Blanton had a “bad reputation for getting people arrested.”

The appellant-Richards also testified that on that January 13, he was in “Fuzzie’s” tavern drinking with Don and Jim Simmons and Branson. Jim took off, went to the “Ozarks” and came back. He and Branson left again. When they returned, “we went over to the Ozark Tavern and went in.” There was a conversation about taking Blanton to Sullivan for $3.00. They got into the car and stopped at the Greeley house. When they arrived in Sullivan, Blanton was only going to give the $2.00, and “we told him we wanted the other one.” Blanton then did give them the other dollar. The appellant also denied the robbery, denied taking any money other than $3.00 and denied pointing a gun at Blanton.

After the court instructed the jury, the jury retired and returned a verdict of guilty of the offense of robbery in the first degree.

In due time, a motion for new trial was filed on the grounds that (1) the court should have sustained counsel’s challenge for cause to Juror Pohlman, and (2) the court erred in restricting the cross-examination of Blanton as to the “abominable crime” in not permitting cross-examination as to the “nature and circumstances of the crimes for which he was convicted . . .” No point was raised in the motion relating to the testimony of Mr. Greeley or the testimony of the deputy sheriffs relating to Mr. Blanton’s identifying the appellant from the “picture book” or at the lineup.

After the motion was overruled, the defendant was sentenced in accordance with the jury verdict and this appeal followed.

On appeal, appellant contends that the court erred (1) in refusing to sustain defendant’s challenge for cause as to Juror Pohlman because he indicated “he was aware of the fact that the robbery did happen,” which was a “material issue actually tried,” and had “formed” and “delivered” an opinion on this “material fact to be tried,” it not being shown that this “opinion” was founded only on “rumor and newspaper reports,” § 546.150; and (2) in violating § 491.050 by not permitting the appellant to impeach Blanton by showing the “nature and circumstances” of the “detestable offense.”

The appellant further contends that the court committed “plain error” in failing to strike the testimony of Mr. Greeley concerning the guns missing from his home and in failing to strike the testimony of the Deputy Sheriffs Scott and Bartolo that Blanton identified the defendant from a picture and identified the defendant at the lineup.

As to the principal point concerning the challenge of the venireman for cause, appellant vigorously argues that “it is clear that juror Pohlman had formed and delivered an opinion that a robbery had happened, and that opinion was not founded on rumor or newspaper reports; and it was on the most material fact of all — whether or not a robbery really did happen.” “Clearly,” he says, “Juror Pohlman should have been disqualified under the statute. . . . The failure of the judge to disqualify, Pohlman for cause, denied the defendant his right to a full panel of qualified jurors before he was required to make his peremptory challenges. The judge violated the mandatory terms of the statute to the defendant’s prejudice. . .”

The principal issue to be determined on this appeal, as appellant’s counsel frankly admits, is whether the court erred in failing to strike Juror Pohlman for cause when he indicated that he was “aware” of the “fact that it did happen.” Appellant argues that this indicates that Juror Pohlman had formed and delivered an opinion on a “material fact” to be tried — i. e., whether in fact a robbery had occurred, and having formed such an opinion, it not being shown that such opinion was founded only on “rumor and newspaper reports,” it was error not to strike the venireman.

This whole matter of “opinion” and preconceived notions about “the issue” “or any material fact to be tried” as disqualifying a prospective juror has been the subject of innumerable decisions since the formation of the jury system. There are several and well-known general principles relating to the matter of disqualification when a juror has formed an “opinion” in the cause.

First, and as a general proposition, the foundation of our system is that a cause is to be tried by individuals who are free from partiality or bias for or against the litigants, and “ ‘. . . a juror [should] come to the consideration of the case unaffected by any previous judgment, opinion or bias, either as respects the parties or the subject matter in controversy’ . . . .” 47 Am.Jur., Jury, § 294, p. 872 (1969); see also State v. Holliman, supra, 529 S.W.2d at 943.

Second, the decision of the trial court is reversible only for an abuse of discretion, and all doubts should be resolved in favor of the finding of the trial court. State v. Wilson, 436 S.W.2d 633, 637 (Mo.1969); State v. Cuckovich, 485 S.W.2d 16, 22 (Mo. banc 1972).

“[I]t is well established in this state that the trial court ‘has a wide discretion in determining the qualifications of a venireman and its decision thereon should not be disturbed except for a clear abuse of discretion. ... A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on the observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror. The trial judge is in a far better position to make that determination than are we from the cold record.’ State v. Harris, Mo.Sup., 425 S.W.2d 148, 155.” State v. Cuckovich, supra, 485 S.W.2d at 22-23.

See also State v. Holliman, supra, 529 S.W.2d at 939.

Third, Missouri has consistently followed the rule that a defendant is entitled to a full panel of qualified jurors before he is required to make his peremptory challenges. State v. Cuckovich, supra, 485 S.W.2d at 22; State v. Kirkpatrick, 428 S.W.2d 513, 516 (Mo.1968); State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972).

Fourth, the statute, § 546.150, is not an absolute prohibition. It is based on the Territorial Laws of Missouri Act of January 21, 1816 — 1 Territorial Laws, § 7, p. 447. The statute must be construed by the innumerable judicial decisions interpreting it. Many satellite issues are involved as to whether a juror must be struck for cause— how was the “opinion” formed, how strong was the “opinion,” whether the opinion, even though formed, may be overcome by expressions that the juror is able to render a fair and impartial verdict and whether he can lay aside any “opinion” and render a fair verdict; was the opinion formed from “rumor” or conversation with the parties or witnesses, or from “newspaper reports” or from personal knowledge or from testimony in a former proceeding. All of these satellite issues are involved before it can be said that a trial court abused its discretion so that we are required to overturn the ruling.

Fifth, the rules in the selection of prospective jurors as to whether they are disqualified under the statute have been often stated. One of the best statements is that of Gantt, P. J. in State v. Foley, 144 Mo. 600, 46 S.W. 733, 736 (1898).

“. . . Certain rules of practice in the selection of jurors have long prevailed in this state, and have received the sanction of the courts and approbation of the bar. If a person has formed or expressed an opinion upon his own knowledge of the facts in the case, or from conversing with the witnesses, or read the sworn evidence taken before the coroner on preliminary examination in the case, or if his opinion has been engendered by hearing the witnesses testify under oath in a former trial of the same case, the uniform practice has been to reject such a person as incompetent to serve as a juror. ... An opinion thus formed does not fall within the exception to the statute as one based upon rumor or newspaper reports. . As said by this court in [State v. Culler, 82 Mo. 623 (1884)]: ‘The rule of the statute, then, is the absolute disqualification of every one offered for a juror who has formed or expressed an opinion on the issue. The exception is where such an opinion is founded only on rumor or newspaper reports, and even the exception has no operative effect if they have been such as to prejudice or bias the mind.’ ” State v. Foley, supra, 46 S.W. at 736. (Emphasis added.)

Numerous decisions hold that there is no incompetency under the statute even though a venireman has formed an opinion as to the guilt of the accused founded on rumor or conversations if he can lay aside such opinion and render an impartial verdict.

“The test of the disqualification of a jur- or, based on an opinion of the defendant’s guilt formed from rumor or from reading newspaper reports, is whether or not he can lay aside such opinion and render a fair and impartial verdict, based solely on a consideration of the evidence under the instructions of the court.” State v. Baker, 285 S.W. 416, 418 (Mo.1926).

Tested within the legal principles established by a long list oí precedents, we cannot conclude that the trial court erred in failing to sustain the challenge for cause to Juror Pohlman. The prosecutor asked the panel whether there was anyone who had prior knowledge or information about this offense, and when Juror Pohlman raised his hand, the prosecutor asked, “how was it you have personal knowledge of this particular offense?” His reply was, “I know Frank pretty well.” Juror Pohlman had not discussed the case with Frank Blanton, but when asked, “You are just aware of the fact that it did happen,” he replied, “Yeah.”

We are not convinced, as appellant argues, that, by the statement that he was “aware” of the fact “it” did happen, Mr. Pohlman formed an “opinion” that in fact a robbery with all its constitutive elements had occurred. To be “aware” that “it” did happen does not necessarily mean that an “opinion” had been formed that the robbery did in fact occur.

But, taking the argument of the appellant that by these words Mr. Pohlman did form an opinion as to the fact that a robbery did indeed occur, still we cannot say that the trial court erred in failing to strike Juror Pohlman for cause. Mr. Pohlman did not speak to Frank Blanton about the case, there is nothing in the record to indicate that he talked to any witness; the only basis for concluding that he formed an “opinion” is that he knew Frank Blanton “pretty well.” Therefore, the implication is that his “opinion” may well have been formed by conversations or rumors or merely because he knew the victim, which, under the authorities, do not rise to a disqualification as a matter of law.

The tests laid down in all the authorities above indicate that a juror is not, under the statute relied upon, incompetent merely because he has formed an opinion “on the issue” or as to any “material fact,” but such a determination depends on whether that fixed opinion is formed or expressed (11 by hearing a substantial amount of testimony in a previous proceeding; (2) by speaking to witnesses in the case; or (3) from facts based on his personal knowledge. See Brill, Voir Dire I, supra, 29 Mo.L.Rev. at 291. None of these situations existed here. Furthermore, he indicated upon interrogation that the fact that he knew Frank Blanton would not affect his ability to be a fair and impartial juror. He indicated upon questioning that he could give a fair and impartial trial. Under these circumstances, we conclude that the trial court did not err.

Appellant takes a too simplistic view of the statute. He argues in effect that the mere fact an opinion is formed as to a “material fact” requires that the prospective juror must be disqualified. The authorities do not bear this out. We rule this point against appellant.

Next, appellant complains that the court erred in limiting the cross-examination of Mr. Blanton by not permitting counsel to go into the details of the “abominable and detestable crime against nature” after Blanton admitted conviction thereof. There was no error in this regard. State v. Scott, 459 S.W.2d 321, 323 (Mo.1970). The trial court is permitted a wide discretion in determining the permissible scope of cross-examination especially as to matters of impeachment. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972).

Appellant next contends that the court erred in failing to strike the testimony of Melvin Greeley regarding the guns which were found missing on the day of the robbery because the state did not “connect that testimony up” with the testimony of Franklin Blanton regarding the guns used in the alleged robbery. Appellant admits that this point was not preserved, but argues that we should consider this point under “plain error.” Rule 27.20(c).

In order to establish plain error on appeal, appellant has the burden of showing that the error amounted to a “miscarriage of justice” or resulted in “manifest injustice.” Rule 27.20(c).

Franklin Blanton testified that he saw the defendant coming out of a “big white house” prior to the robbery. The defendant himself testified that they stopped at the house so that he could use the bathroom after Mr. Blanton was in the car. After the robbery, Mr. Greeley noticed that two guns which he had kept in a cabinet at the house were missing. His description of the two guns substantially matched that given by Mr. Blanton. This evidence, albeit circumstantial, tended to prove that the appellant had access to the missing guns prior to the robbery, and as such, was relevant and material on the issue of whether in fact the robbery had occurred. See State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971). There was no manifest injustice or miscarriage of justice. This point must be ruled against appellant.

Finally, appellant contends that the trial court improperly permitted Deputies Scott and Bartolo to testify concerning Mr. Blanton’s extrajudicial identification of the defendant. This point also was not preserved for review, and appellant urges that we consider it as plain error also.

Appellant relies on State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), in support of his contention. In Degraffenreid there was only one eyewitness, a 78-year-old man, and the testimony of the officer corroborating the identifying witness could, in the opinion of the court, have tipped the scales against the defendant. The admission of such identifying testimony may or may not be harmless error. We believe Degraffenreid is distinguishable and does not control this case. There was no real issue of identification here. Appellant admitted he was in the automobile, and Mr. Blanton previously testified as to his extrajudicial identification of the defendant. Under such circumstances, we find no plain error.

Hence, we conclude that (1) the trial court did not err, under the circumstances here, in failing to strike the venireman for cause; (2) there was no error in limiting the cross-examination of Frank Blanton concerning the details of the “abominable and detestable crime against nature”; and (3) there was no “plain error” in admitting the testimony of Mr. Greeley, and in admitting the testimony of the deputies concerning Mr. Blanton’s identification. Rule 27.20(c).

We have reviewed the entire record, we have read the briefs of the parties and the authorities relied upon and conclude that the judgment should be affirmed.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . Two other veniremen — Carr and Klauser— knew Mr. Blanton. Juror Carr indicated he knew “Frank.” The prosecutor asked him, “And how is it that you know about this particular incident, sir?” The juror answered, “Just conversation, overhearing conversations.” The juror indicated that the fact he knew Mr. Blan-ton would not affect his ability to sit as a fair and impartial juror. Juror Klauser indicated he knew Mr. Blanton, and “I do remember the circumstances . .

      . During the voir dire examination of the prospective jurors, the prosecutor indicated that he expected there would be evidence that Mr. Blanton had been previously convicted of the crime of “sodomy,” in 1955. The defense counsel objected to the word, since “[t]hat isn’t the name of the crime, Your Honor.” The prosecutor was then told by the court to “[cjorrect yourself with the jury.”
      The “sodomy” statute has been held constitutional in Missouri. State v. Crawford, 478 S.W.2d 314 (Mo.1972), appeal dismissed 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66, reh. den. 409 U.S. 1051, 93 S.Ct. 536, 34 L.Ed.2d 505.

      . Lonnie Lee Richards testified, however, that they- did stop at Mr. Greeley’s house and that Branson “was wrong” on this score.

      . § 546.150 provides: “It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion if founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.”

      . § 491.050 provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.”

      . The record does not indicate whether Juror Pohlman served on the jury. On oral argument, defense counsel argued that our recent decision, State v. Simpson, 529 S.W.2d 19 (Mo.App.1975), was erroneous and conflicts with other decisions. There the record revealed that the juror in question did not serve, but the record failed to reveal who used the peremptory challenge to remove him. We held that where the record does not reveal that the defendant used a peremptory challenge and there is no proof that the state did not peremptorily challenge the venireman, there is no error. “It is the responsibility of the trial counsel to preserve for appeal a proper record . . 529 S.W.2d at 21. In effect, we held that if there is no showing that the defendant had to use a peremptory challenge, there is no error. Cf. Butler v. Talge, 516 S.W.2d 824 (Mo.App.1974); State v. Holliman, 529 S.W.2d 932 (Mo.App.1975), and cases cited therein.

      . It is not necessary in this case to decide the question whether defendant may complain where the record does not indicate who had to use a peremptory challenge. Since we hold that there was no error in refusing to strike the juror for cause under the circumstances, it is not necessary to reach this secondary issue. Cf. State v. Simpson, supra.

      . What is an “opinion” in the strict legal sense? The average juror is not usually skilled in the niceties of language, and he frequently means he has an “impression.” See discussion by Sherwood, J. in State v. Taylor, 134 Mo. 109, 35 S.W. 92, 99 (1896), and Comment, Williamson, An Opinion on the Issue, 21 J. of Mo.Bar 118 (1965).

      . The words of Chief Justice Marshall are significant: “Light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror; but . . . those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.” Quoted in Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244, 246 (1878). It is usually said the opinion must be “fixed.”

      . Appellant relies on this case to support his point that Juror Pohlman should have been stricken. In the Foley case, the jurors listened to a former trial and conversed with the witnesses. The court held that the trial court erred in not striking these prosecutive jurors. Appellant also relies on State v. Hultz, 106 Mo. 41, 16 S.W. 940 (1891), but there the juror formed an opinion from evidence he heard at a preliminary trial.

      . State v. Poor, 286 Mo. 644, 228 S.W. 810 (1921)-newspaper reports; State v. Rasco, 239 Mo. 535, 144 S.W. 449 (1912)-opinion as to guilt — opinions not based on facts elicited from witnesses or any person who professed to know facts; State v. Lewis, 323 Mo. 1070, 20 S.W.2d 529, 535 (1929)-juror expressed opinion on way to attend court that jury would convict not incompetent when he stated on voir dire he had not formed opinion on guilt; State v. Welsor, 117 Mo. 570, 21 S.W. 443, 445 (1893)-aversion to a plea of insanity does not disqualify juror, even though fact to be tried, where trial court is satisfied that juror will give fair trial; State v. Reed, 89 Mo. 168, 1 S.W. 225 (1886)-juror expressed opinion on guilt based on conversations with wife — not incompetent; see complete discussion in Rosenwald, Exemptions from Jury Service and Challenges for Cause in Missouri, 15 St. Louis L.Rev. 361, 366-381 (1930), and Brill, Voir Dire I-Examination of Jurors, 29 Mo.L.Rev. 259, 291-292 (1964).

      . The fact that a venireman has knowledge that a particular crime has occurred is insufficient to sustain a challenge for cause where there is no showing that a venireman has formed or expressed an opinion as to the guilt of the defendant. State v. Cashman, 485 S.W.2d 431, 433 (Mo.1972). And the fact that a venireman is a friend of the victim is not sufficient to disqualify him.

      . Compare: Yeager v. State, 43 Okl.Cr. 318, 278 P. 665, 667 (1929)-the fact that a juror formed an opinion that deceased had been murdered and an opinion as to the cause of death d'd not disqualify juror; and Mathews v. State, 19 Okl.Cr. 153, 198 P. 112, 117 (1921) [fraud].

      . In defendant’s case these details were brought out by the circuit clerk by reading


source: Caselaw Access Project

license: Public Domain

text:
    ST. LOUIS UNION TRUST COMPANY, etc., Plaintiff-Respondent, v. George K. CONANT, Jr., etc., et al., Defendants-Respondents, Charles C. Allen, Jr., guardian ad litem for John Gridley and Sarah Conant Gridley, minors, Defendant-Respondent, Donald K. Gerard, guardian ad litem for George K. Conant, III, et al., Defendant-Respondent, Josie C. Manternach et al., Defendants-Appellants.
    No. 36665.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 2, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Gray & Ritter, Charles E. Gray, and Mark Evan, Hughes, St. Louis, for defendants-appellants.
    Lewis, Rice, Tucker, Allen & Chubb, Joseph W. Lewis, and Michael D. Mulligan, Bryan, Cave, McPheeters & McRoberts, William F. Tracy, II, St. Louis, Donald K. Gerard, Clayton, Keefe, Schlafly, Griese-dieck & Farrell, Richard D. Shewmaker, St. Louis, for respondents.
   SIMEONE, Presiding Judge.

This appeal involves the aftermath of litigation which culminated in the Supreme Court of Missouri. St. Louis Union Trust Company v. Conant, 499 S.W.2d 761 (Mo.1973). This appeal is from a judgment of the circuit court of St. Louis County awarding compensation for services rendered as guardians ad litem for several contingent beneficiaries under a trust. The issue to be determined is whether the guardians ad litem of contingent beneficiaries of a trust are entitled to fees for representation of their wards for the successful litigation involving the trust. The trial court granted such fees and expenses incurred in the trial and successful appeal in the first Conant litigation and charged such fees against the corpus of the trust. On this appeal, the primary beneficiaries of the trust question this ruling of the trial court and appeal the order granting such fees and expenses.

The guardians have also made application in this court for additional fees and expenses incurred on this appeal because the appellants — the primary beneficiaries of the trust — seek to declare the order of the trial court awarding fees invalid.

We hold that the trial court did not err in awarding fees for services rendered and expenses incurred by the guardians ad litem for the trial and appeal of St. Louis Union Trust Company v. Conant, supra, and hence affirm the order and judgment of the trial court awarding such fees and expenses, and we deny the guardians’ application for additional fees and expenses filed in this court on this appeal.

The facts are complicated and the litigation has been long and vigorous. There is no need to detail each and every fact, since the facts are thoroughly and accurately discussed in the opinion by Stockard, C. in St. Louis Union Trust Company v. Conant, supra.

Suffice it to say that Eleanore G. Conant died on October 14,1964, and her will, dated July 22, 1964, was admitted to probate. Eleanore G. Conant was survived by four children — George K. Conant, Jr., Josie Co-nant Manternach, Eleanore Conant Storrs and Frances Conant (Balsam) Schieffelin. Mrs. Eleanore G. Conant was also survived by several grandchildren and great-grandchildren. Her son, George, Jr., has four children — George K. Conant III, Annie Co-nant, Lawrie Conant and Susan Conant. Josie Conant Manternach had two children — Josie Manternach and Bruce W. Manternach, Jr. Frances Conant Schieffe-lin has one child, Ann Richards Gridley; and Mrs. Gridley has two children — John Grid-ley and Sarah Conant Gridley. The George Conant children, the Ann Richards Gridley children and the Manternach children are minors.

Mrs. Eleanore Conant’s will provided, in effect, that her residuary estate was to be divided into four portions — only one of which is important in this proceeding. One portion was bequeathed in trust under the provisions of Paragraph 1-C of Article III and Article V and provided that the trustee —St. Louis Union Trust Company — was to pay the income to her daughter, Josie Co-nant Manternach, during her lifetime. The will provided that the trust shall terminate upon the death of Josie Conant Manternach and that, upon termination, the trust be distributed in certain specified shares to Josie and Bruce if then living, but if not, then the trust would be distributed to the grandchildren of the testatrix — the Conant children and Ann Richards Gridley per stirpes.

After the probate of the will, Josie Co-nant Manternach instituted a will contest suit in May, 1965, in the circuit court of St. Louis County, seeking to set aside the will. She joined as defendants — George K. Co-nant, Jr., the Conant children, Eleanore Co-nant Storrs, Frances Conant Balsam [Schieffelin], Ann Richards Gridley and Mrs. Manternach’s children — Josie and Bruce. The Gridley children were not named parties. The will contest suit proceeded but was “laid over from day to day” and thereafter on January 15, 1968, an instrument designated a “Settlement Agreement” was signed by all parties to the suit and filed with the circuit court. The court entered an order and judgment in the will contest suit establishing the will dated July 22, 1964 as the last will and testament of Eleanore G. Conant and “approving the Settlement Agreement ... as being duly executed, fair and reasonable and lawfully binding upon all parties to the will contest suit and on all beneficiaries . .” Under the settlement agreement, Josie Conant Manternach was entitled to receive from the estate an amount calculated by a specified formula — $113,000 —to be deducted from the assets. The agreement further provided that the trustee (St. Louis Union) and Mrs. Manternach would “respectively, renounce their rights and interests in or with respect to said trust.” The agreement was subject to the condition that a declaratory judgment suit be filed by the trustee (St. Louis Union) to determine the legality and binding effect of the settlement insofar as it provided for the payment to Josie Conant Manternach free from trust and the effect of the renunciations upon the rights of the beneficiaries, contingent or otherwise.

In due time and on February 21, 1968, a declaratory action was filed in the circuit court of St. Louis County by the trustee, St. Louis Union Trust, alleging that

“. . . plaintiff is uncertain and in doubt as to the legality and binding ef-feet of said Settlement Agreement insofar as it provides for the payment outright and free from trust to Josie Conant Manternaeh . . . and deducted from the assets distributable to plaintiff as Trustee of the trust . . . [and] uncertain and in doubt as to the legal effect of the renunciations in . said Settlement Agreement upon the rights of the beneficiaries, contingent or otherwise . . .

The trustee, in the declaratory judgment action, alleged that it had to employ attorneys to defend the will contest action, that it is entitled to its reasonable costs and expenses in connection with obtaining advice in connection with the declaratory action and that such costs and expenses should be taxed against the one-fourth portion of Eleanore G. Conant’s residuary estate. In the declaratory judgment suit, St. Louis Union, trustee, prayed that the court construe the settlement agreement executed January 15, 1968, and prayed for attorneys’ fees and expenses (a) in connection with the negotiation of the settlement agreement in the will contest suit and (b) in connection with the declaratory judgment action.

Answers were filed by the various parties. After the petition was filed guardians ad litem were appointed for Josie Conant Manternaeh, Jr. and Bruce.

On April 24, 1968 (1) George K. Conant, Jr. filed a petition for the appointment of a “competent independent person” to serve as guardian ad litem for his daughter Susan Conant (under fourteen), (2) the other Co-nant children filed their petition for the appointment of a “competent independent person,” and (3) Ann Richards Gridley filed her petition for the appointment of a guardian for her son, John. On May 1, 1968, Donald K. Gerard was appointed guardian for all of these children, and on May 13 accepted the appointments and entered his appearance. Then on July 9,1968, after Sarah Conant Gridley was born, Ann Richards Gridley and her husband petitioned the court for the appointment of a guardian ad litem for her two children— John and Sarah — and indicated in the petition that as their parents they have selected and “obtained the written consent of, Charles C. Allen, Jr, . to act as guardian for” Sarah, and his consent to act as guardian for John in the event of the resignation and withdrawal of Mr. Gerard. Mr. Gerard did withdraw as guardian of John, and Mr. Allen was appointed guardian for both John and Sarah. In due time Mr. Allen on behalf of John and Sarah answered the declaratory judgment suit and asserted that the settlement agreement was not binding on these infants because they were not signatories to the settlement agreement or otherwise represented.

The declaratory judgment action came on for trial on February 4, 1969, before Judge Cloyd in the circuit court of St. Louis County. Much of that transcript was devoted to the issue of whether attorneys’ fees should or could be awarded to the attorneys in the will contest suit and in the declaratory judgment suit.

On November 12, 1970, the trial court entered its findings of fact, conclusions of law and order, judgment and decree. The court found that the Gridley children were the children of Ann Richards Gridley, who was a party defendant in the will contest action and that she was acting on behalf of her children since they “must be held to be in privy with her and her action is binding upon them.” The trial court found that the wording of the settlement agreement shows that it was not contemplated by the parties that any attorneys’ fees should be borne by the trust and would be contrary to the provisions of the settlement agreement. The court also found that the law of Missouri prohibits the award of attorneys’ fees to the trustee for services rendered by the attorneys employed by it in the defense of a will contest suit, and that “attorneys fees and expenses incurred in this [declaratory judgment] action are not the obligation of plaintiff as Co-Executor and Trustee . since they were incurred in the furtherance of the Will contest suit . . .

The trial court decreed that: (1) the settlement agreement “constitutes an effective renunciation by Josie Conant Manter-nach of her rights under the Will . . ,” (2) the trustee shall pay to Josie C. Manter-nach the amount calculated under the settlement agreement and held by the trustee “free from any charges or from any amounts that may be taxed as costs for the allowance of Guardian ad litem fees as hereinafter provided,” (3) the trustee is not “authorized to expend any sums from the estate or trusts for attorneys’ fees or expenses incurred by it or any other parties in the Will contest proceedings or for any services rendered or expenses incurred in this [declaratory judgment] action,” and (4) jurisdiction is specifically reserved “only for the determination of applications for Guardian ad litem fees rendered by the Guardian ad litems [sic] in this action which have heretofore been filed.”

As of November 12,1970, the date of the trial court’s decree, Mr. Gerard had filed his application on April 23,1969 for “compensation as guardian ad litem and for attorney’s fees” in the amount of $2683.60. On January 9, 1970, Mr. Allen filed his application for “payment of fees as guardian ad litem” in the amount of $3,955.00.

On November 27, 1970, respondent Allen filed a motion to amend the judgment or in the alternative for a new trial. The trustee, St. Louis Union, also excepted to the court’s ruling, alleging that it erred in disallowing attorneys’ fees and expenses to be paid to the trustee out of the Manternaeh trust. The motions were overruled by operation of law, and on March 5, 1971, respondent Allen, on behalf of the Gridley children and the trustee, filed notices of appeal to the Supreme Court of Missouri.

The two minor contingent beneficiaries— the Gridleys — contested the order of the trial court holding that (1) the judgment in the will contest suit is a valid and binding judgment on the parties and the terms of the judgment should be carried out, (2) the settlement agreement constituted an effective renunciation by Josie Conant Manter-nach of her rights under the will, and (3) the trustee pay to Josie Conant Manternaeh free from trust the amount provided for in the settlement agreement.

On May 14, 1973, the Supreme Court handed down its opinion in the appeal of the declaratory judgment action. The court held that the two appellants — the Gridley children — have contingencies which are not impossible of occurrence and “should the settlement agreement be carried out and the contingencies occur, the amounts payable to appellants [Gridley children] will be reduced substantially.” St. Louis Union Trust Company v. Conant, supra, 499 S.W.2d at 764. While recognizing the general policy favoring the compromise of will contests, the court held that what was proposed by the settlement “destroys the clearly stated purposes of the trust and the intent of the testatrix. . . .”

“The proposed settlement would reduce the corpus of the trust to approximately one-third of its amount. Judicial approval of the settlement agreement would partially destroy and defeat the trust, violate the spendthrift clause, deprive persons not party to the agreement (and who are under the disability of infancy) of their potential participation in the trust estate, and defeat the intention and purpose of the testatrix by depriving her of her right to dispose of this part of her property by will with restrictions, where the purpose of testatrix is legal, has not been accomplished, and is possible of accomplishment. . . .” St. Louis Union Trust Company v. Conant, supra, 499 S.W.2d at 767.

The supreme court concluded that the trial court erred in approving the settlement agreement. As to attorneys’ fees, the supreme court affirmed the order of the trial court in denying fees and expenses (a) in obtaining advice and counsel in connection with the negotiation of the settlement agreement in the will contest, and (b) in connection with the suit for declaratory judgment. The court held that a declaratory judgment action was not a proceeding to properly administer the trust according to its terms but was to determine whether the trustee could properly join in a plan as a part of the settlement of the will contest. In such case the fees and expenses were not incurred in obtaining instructions from the court as to its powers or duties relating to the administration of the trust but were incurred in litigation “brought about as a part of a proposed settlement of a will contest suit, and such litigation was in fact a part of the will contest proceeding. Therefore, the trial court correctly ruled that the fees and expenses were not properly chargeable to the trust.” Conant, supra, 499 S.W.2d at 769. The supreme court concluded that the part of the judgment approving the settlement and authorizing the payment to Mrs. Manternach was reversed but “the remainder of the judgment is affirmed.”

After the Conant litigation was decided by the high court, the motions of Messrs. Gerard and Allen for guardian fees prior to November 12, 1970, had still not been ruled upon. After the cause was decided in the supreme court as outlined above, Mr. Allen then filed his “Supplemental Application” for payment of fees as guardian ad litem. This supplemental application was filed September 11,1973, some four months after the supreme court decision. In the supplemental application he alleged that in his capacity as guardian ad litem he performed, after November 12, 1970, further services for his wards by prosecuting an appeal to the supreme court. He outlined his duties on the appeal and requested an additional sum, for the services on appeal, of $6,875.00, or a total of $10,830.00. He amended this application two months later and requested an additional sum of $509.62 for “incurred expenses,” or a total sum of $11,339.92.

On November 7, 1973, Mr. Gerard filed his motion requesting the court to approve his application for guardian and attorneys’ fees filed previously on April 28, 1969. In this motion he informed the court that he did no additional work on appeal to the supreme court and moved the court to hold a hearing and approve his earlier application for fees.

The motions were heard in Division No. 6 in the circuit court of St. Louis County. Following the hearing the trial court sustained the applications of Mr. Allen and Mr. Gerard. The court sustained the supplemental application of Charles C. Allen, Jr. “for payment of fees as Guardian ad Li-tem” and ordered the trustee, St. Louis Union Trust, to pay $10,830 “as reasonable compensation for services rendered as guardian ad litem for minor defendants John Gridley and Sarah Conant Gridlay [sic]” and $509.92 as reimbursement for “actual and necessary expenses incurred,” the payments to be charged against the “corpus” of the [Manternach] trust. The trial court also sustained the application of Mr. Gerard and ordered the trustee to pay him the sum of $2,683.60 “as reasonable compensation for services rendered as guardian ad litem” for the Conant children, to be charged against the same trust. Thereafter, Josie Conant Manternach and her children, by and through their guardian, their father, appealed to this court to reverse the order granting the original and supplemental fees.

Pending appeal and argument in this court, the respondents Gerard and Allen each filed their applications for “additional fees and expenses as guardian ad litem” for services rendered preparing for and briefing this appeal. Respondent, Mr. Allen alleged that as “a result of Appellants’ [Man-ternachs] opposition to this Respondent’s application for compensation, it became necessary ... to expend time and effort in defense of this Respondent’s right to compensation in addition to the time and effort previously expended on the merits of the case.” Hence, he prayed for additional “Guardian ad Litem’s fees in the amount of $3,820 and an additional $412.87 as reimbursement for expenses incurred by this Respondent in preparing his Brief on appeal, said amounts to be paid out of the Eleanore G. Conant trust.” Mr. Gerard also asked for an additional amount of $1,875 for “legal research and further activities to discuss the issues with the other Respondent [Allen] and concur on our respective positions . . . .” He also seeks an additional $250.00 for time “to be spent in his final preparation and attendance at oral argument . . . .” The total he sought for appeal was therefore $1,625.00.

On this appeal from the award of fees and expenses to the respondents, Allen and Gerard, ordered by the trial court in Division No. 6, the appellants — Josie Conant Manternach and her children — make several points. They contend that the trial court erred in awarding such fees because these proceedings were in fact a part of the prior will contest so that the holding of the supreme court in Conant, supra, 499 S.W.2d 761 (a) became the law of the case and (b) the award of “guardian” fees was in direct violation of the mandate of the supreme court. They also contend the trial court erred because (1) the original trial court’s decree in the declaratory judgment action ordered that the trustee, St. Louis Union Trust, was not authorized or obligated to expend any sums from the estate or trusts for attorneys’ fees or expenses incurred by it or any other party and, since this portion of the decree was affirmed by the supreme court, the order awarding guardian fees is “void”; (2) the claims for fees were in reality claims for attorneys’ fees and the fact that the trial court designated them guardian fees was a subterfuge to evade the mandate of the supreme court; (3) even if the award were for services rendered as guardians, the trial court had no authority to tax the amount as costs or direct that payment be made from the Manternach trust, since there was no evidence that the minor Gridley children or their parents were unable to pay for such services and (4) the trial court, in reserving jurisdiction to award guardian fees, only had power to award fees for applications which had been filed prior to the entry of its decree (November, 1970) and the mandate of the supreme court did not grant the trial court power to consider fees subsequent to that date for the services rendered in filing after-trial motions and appealing the declaratory judgment suit.

Appellants-Manternachs argue that the question whether the parties to the will contest suit and declaratory judgment action were entitled to “attorneys fees” out of the estate were specifically considered and determined by the supreme court. “The court necessarily determined these questions [attorneys fees] since [the trustee] sought an allowance of attorneys fees . [and] [t]he [supreme] court rejected these assertions.” The appellants therefore contend that, since the question of attorneys fees was adjudicated by the supreme court, this issue became the “law of the case” and these “attorneys fees” may not be disguised as guardian fees.

They further argue that the trial court in its declaratory judgment order stated that the trustee was not “obligated or authorized to expend any sums from the estate or trusts for attorneys’ fees or expenses incurred by it or any other parties in the will contest proceedings or for any services rendered or expenses incurred in this action,” and the decree having been affirmed, the trial court’s order granting fees was in direct conflict with the declaratory judgment decree so that the trial court here was without power to modify or alter or depart from the decree affirmed by the supreme court. They contend that even though the declaratory judgment court reserved the right to determine an allowance for guardian fees, under “no circumstances” could the court’s language be considered a reservation of the right to determine whether an award would be ordered paid from the Manternach trust. The applications made by respondents clearly show they say that the request was for “attorneys’ fees” and for legal services and there was no evidence to delineate what were guardian fees and what were attorneys’ fees.

Finally, appellants argue that the trial court had no power to award fees for services rendered and expenses incurred subsequent to its order of November, 1970, since this was in violation of the mandate of the supreme court.

Although the points and argument are vigorously made by appellants, we are convinced that the trial court did not err in awarding guardian fees to the respondents Allen and Gerard for services and expenses incurred in the trial and appeal of the declaratory judgment action. In so holding, it is not necessary to answer each point and subpoint raised by appellants.

The declaratory judgment litigation was brought about by the proposed settlement of the will contest suit and the trial court and supreme court held that in such a posture “attorneys’ fees” were not properly awarded to any party including the trustee-plaintiff. The whole thrust of the declaratory judgment trial and appeal revolved around the validity of the settlement agreement and the propriety of the trial court in that action denying attorneys’ fees. The decree in that action, we believe, directed that the trustee was not obligated to expend any sums from the estate or trust for attorneys’ fees or expenses in the will contest action or in seeking instructions as to the validity of the settlement agreement. The trial court and the supreme court followed the long-settled law of this state that in a will contest action and the declaratory judgment action which was a part thereof, the parties interested, and not the trust, should bear the expenses of litigation. In re Soulard’s Estate, 141 Mo. 642, 43 S.W. 617, 624 (1897); In re Fry’s Estate, 96 Mo.App. 208, 70 S.W. 172 (1902); St. Louis Union Trust Company v. Conant, supra, 499 S.W.2d at 769.

But the trial court and the supreme court in the Conant litigation did not, by following this general principle, preclude the trial court below from passing upon the applications for guardians fees rendered in the action, and in our opinion, although the issue of attorneys’ fees was adjudicated and became the “law of the case,” the trial court below was not precluded by the decision of the supreme court from determining the issue of guardians fees which it specifically reserved for later determination. It was proper for the trial court to reserve its jurisdiction, pending appeal on the question of guardian ad litem fees. These questions did not become the law of the case. Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951); Williams v. Ford Motor Company, 454 S.W.2d 611, 615 (Mo.App.1970). See Mercantile Trust Co., N.A. v. Davis, 522 S.W.2d 798, 808 (Mo. banc 1975). As a result of the specific reservation of jurisdiction over the issue of guardian ad litem fees, the trial court’s judgment on the issues actually determined constituted a separate judgment for purposes of appeal. Papin v. Papin, 475 S.W.2d 73, 75 (Mo.1972). Hence, there was no issue before the supreme court regarding guardian ad litem fees, and that issue was not adjudicated. The supreme court’s affirmance of the trial court’s disallowance to the trustee and its failure to specifically remand the case to the trial court for the purpose of determining respondents’ applications for guardian ad litem fees and expenses did not deprive the trial court of its jurisdiction, previously acquired- and reserved, to hear and determine the question of such guardian ad litem fees. See Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652, 656 (Mo. banc 1962), and compare City of St. Charles v. Schroeder, 510 S.W.2d 202, 203 (Mo.App.1974).

The supreme court, in our opinion, affirmed the decree of the declaratory judgment court with respect to the disallowance of attorneys’ fees and expenses of attorneys in connection therewith insofar as the will contest proceeding and the interlocking declaratory judgment action were concerned, but did not thereby preclude the trial court from considering the applications of guardian fees for the successful appellants — the Gridley children. That portion of the declaratory court’s order that the trustee was not obligated or authorized to expend any sums from the trust for attorneys’ fees or expenses incurred in the will contest proceedings or for any services rendered or expenses incurred in the declaratory judgment action related, in our opinion, to attorneys’ fees and expenses which were heard in the trial of the declaratory judgment action. The award of such fees was contested in the declaratory action and in the context of the proceeding it was these fees which were the subject of denial and af-firmance, and not fees and expenses for the guardians ad litem.

V<Ie do not, therefore, believe that the trial court’s order granting guardian ad li-tem fees is contrary to the decision and mandate of the supreme court in the Conant appeal, supra.

The trial court below had ample authority to award guardian ad litem fees, and its award is amply supported by the authorities. As early as Jones v. Yore, 142 Mo. 38, 43 S.W. 384 (1897), it has been held that it cannot be seriously controverted that a guardian ad litem appointed by the court for an infant defendant is entitled to compensation. “ ‘. . .If the law were otherwise, the rights of infants would be at the mercy of any one who saw fit to invade them. . . . ’ ” Jones v. Yore, supra, 43 S.W. at 386. See also Jones v. Yore, 158 Mo. 83, 57 S.W. 1134 (banc 1900). The guardian ad litem holds an exceptional position; he has a certain status and has certain duties as an officer of the court.

“While it has been said that there is little, if any, difference between the functions and powers of a next friend or prochein ami and a guardian ad litem, . the position of the latter as a party litigant seems to be the more unique. He represents an interest brought into court involuntarily, and . . . one essential to the validity of a binding adjudication. It is the duty of the guardian ad litem to defend the suit. He cannot admit or waive anything which goes to sustain the claim of the adverse party. Nor is the appointment a bare technicality, and it is something more than a mere technical defense that is required of the guardian.” Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, 323 (banc 1952).

The appointment of a guardian ad litem for a minor defendant is mandatory. § 507.190, RSMo 1969 — “... the suit shall not be prosecuted any further until a guardian for such infant be appointed”; Rule 52.02(e); Tracy v. Martin, supra, 249 S.W.2d at 323.

There do not appear to be specific statutes, save one, which specifically authorize the courts to make an allowance to a guardian. But apart from specific statutes it has always been held that the power and authority to allow a guardian compensation for services is implied from the power to appoint as one of the court’s inherent powers. Jones v. Yore, supra, 43 S.W. at 387; Tracy v. Martin, supra, 249 S.W.2d at 323.

While a court appointed guardian ad litem may employ counsel (Nagel v. Schilling, 14 Mo.App. 576 (1887); Ragan v. Looney, 377 S.W.2d 273, 276 (Mo.1964)), often the guardian ad litem is an attorney. In such case, he may “also act as counsel for his wards and if he does and the services were necessary he is entitled to a reasonable fee for his services in that capacity or for his combined services.” Ragan v. Looney, supra, 377 S.W.2d at 276, and authorities cited therein.

Therefore, there is no question that the respondents are entitled to compensation for their services as guardians ad litem. The question then remains whether the court erred in charging the guardian fees and expenses to the Manternach trust. We hold that it did not. It is the general principle that a trust beneficiary who successfully preserves or protects a fund or trust or prevents a wrongful disposition of trust assets renders a benefit to the trust estate and if there is a fund before the court, the court may order that an allowance be paid out of the fund or trust. Tracy v. Martin, supra; Ragan v. Looney, supra; cf. Jesser v. Mayfair Hotel, Inc., supra, 360 S.W.2d at 661[7]; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104, 107 (1934); St. Louis Union Trust Co. v. Kalterbach, 353 Mo. 1114, 186 S.W.2d 578, 583 (1945); Bogert, Trusts and Trustees, § 871, pp. 102-106 (2d ed. 1962); First Trust Co. v. Myers, 239 Mo.App. 403, 188 S.W.2d 519, 522 (1945). This is true even though the interests of the beneficiary are contingent. Cf. Tracy v. Martin, supra, rev’g Tracy v. Martin, 239 S.W.2d 567 (Mo.App.1951); In re Roosevelt’s Estate, 131 Misc. 800, 228 N.Y.S. 323, 329 (1928); Uihlein v. Albright, 244 Wis. 650, 12 N.W.2d 909, 910-911 (1944); Bush v. Riker, 77 N.J.Super. 243, 186 A.2d 117, 119 (1962).

Here the contingent beneficiaries — the Gridley children — successfully preserved their interests in the Manternach trust; this was accomplished through the services and skill of the guardians appointed by the court. They preserved the trust; hence, in our opinion, the guardians were entitled to a reasonable fee for combined services rendered.

Neither did the court err in awarding supplemental guardian fees after November, 1970, for the purposes of appealing the declaratory judgment suit to the supreme court. These servicer weie part and parcel of the protection of the trust estate. A guardian would have beeu required for this stage of the proceeding. The word “heretofore” in the declaratory judgment order of the trial court cannot be so restrictive as to preclude an award of compensation on appeal to protect the trust. While it is true that the express language of the declaratory court’s order reserved jurisdiction to determine guardian fees “heretofore” filed, we have the view that this was merely a means of identifying respondents’ applications rather than a restriction by which the court purposely excluded from its jurisdiction any applications that might subsequently be filed by respondents for their services on appeal. At the time of this order there was no indication that an appeal would be taken. In any event, the appeal was the final process by which the trust was preserved through the efforts of the respondents. We hold therefore that the trial court did not err in awarding the supplemental application of Respondent Allen, and in awarding Respondent Gerard his fees for services.

In sum, we affirm the trial court’s order which (1) made an allowance of $10,830.00 to Respondent Allen for services rendered as guardian ad litem for the Gridley children both in the trial court and on appeal and for reimbursement of expenses of $509.92, (2) made an allowance of $2,683.00 to Respondent Gerard for services rendered as guardian for the Conant children in the trial of the declaratory judgment action and (3) ordered that these amounts be charged against the corpus of the trust referred to in paragraph 1-C of Article III and Article V of the will of Eleanore G. Conant.

Lastly, we must dispose of the respondents’ applications for additional fees and expenses filed in this court for services and expenses on this appeal from the trial court’s order awarding fees and expenses. In effect, both respondents seek additional compensation for their services rendered for this appeal. They request that we charge these requests against the trust estate. Such services on this appeal were rendered necessary, they say, because of the appellants’ opposition to their right of reasonable compensation, and hence the services were a necessary consequence of their appointments as guardians.

We decline to award such additional fees. This appeal involves not the protection of the trust estate for the benefit of the Grid-ley children, but involves fees and expenses which are personal to the respondents.

Respondents rely on Mercantile Trust Company v. Muckerman, 377 S.W.2d 355 (Mo.1964), as authority to award fees for appeal. That case is, however, inapposite. Appellate fees were awarded on appeal because the work of counsel for minor defendants was of considerable assistance to the trustee and to the court in construing the trust and bringing about a determination of the dispute over the devolution of the trust assets. That is not the situation on this appeal. We do not consider Muckerman or the other authorities relied on by the respondents to be determinative.

We decline to award additional fees for this appeal. Cf. St. Paul Insurance Company v. Carlyle, 428 S.W.2d 753, 757 (Mo.App.1968).

We have reviewed the original transcript of the declaratory judgment action, the transcript of this hearing requesting fees and expenses, the briefs of the parties and all authorities embodied therein and are convinced that the trial court did not err in awarding the fees and expenses and charging them to the corpus of the trust, and we affirm that order. The application for additional fees and expenses for services on this appeal is denied.

The judgment of the trial court is affirmed.

KELLY and GUNN, JJ., concur.

      . The application for the appointment of a guardian refers to her as Josie Conant Manter-nach, Jr. We shall hereafter refer to her as “Josie.”

        . The trustee named as defendants in the declaratory judgment action George K. Conant, Jr., Josie Conant Manternach, Frances Conant Schieffeling [sic], Eleanore Conant Storrs, Ann Richards Gridley, the Manternaeh children, the Conant children and the Gridley children (Sarah was added to the petition by interlineation because she was bom after the declaratory action was filed).

      . The trustee was represented by different firms and attorneys in each proceeding.

      . $3,955.00 initially applied for in January, 1970; $6,875.00 applied for in September, 1973, and $509.92 for expenses.

      . Respondent Gerard admittedly did no additional work in the appeal; his motion at the hearing on the guardian fees was merely to approve his prior application.


author: FLANIGAN, Judge.

text:
    Joseph VATTEROTT, Plaintiff-Respondent, v. GRYDER MOTORS, INC., Defendant-Appellant.
    No. 9936.
    Missouri Court of Appeals, Springfield District.
    March 12, 1976.
    Motion for Rehearing and to Transfer Denied April 5, 1976.
    Application to Transfer Denied June 14, 1976.

      Richard E. Schwartz, Nangle & Schwartz, St. Louis, for defendant-appellant.
    Charles T. Smallwood, Williams & Small-wood, Rolla, for plaintiff-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

Plaintiff-respondent Joseph Yatterott (“Joseph”) brought this action against Gry-der Motors, Inc. (“Gryder”), defendant-appellant. Joseph had placed a 1971 GMC truck (Ident. No. DH92A-A173894) in the possession of Gryder, a car dealer, in order that Gryder might locate a purchaser. In March 1972, Gryder “sold” the truck to H. J. & W., Inc. and received from that corporation $20,500 representing the purchase price. Upon Gryder’s refusal to pay Joseph any of the proceeds, this action was instituted.

The petition alleged, in general, that Joseph had placed the truck with Gryder and had authorized Gryder “to sell said motor vehicle for the sum of $17,500”; that Gry-der sold the truck but failed to pay plaintiff; that the sale was illegal “in that plaintiff remains in possession of the certificate of title”; that Gryder made the sale knowing it was illegal.

The trial court, sitting without a jury, found the issues in favor of Joseph and awarded him $17,500. Gryder appeals.

Gryder’s first point is, in essence, that Joseph was not entitled to judgment for the reason that he was not the real party in interest. Gryder claims that the owner of the truck, for whom Gryder acted as selling agent, was Thomas Yatterott (“Thomas”), son of Joseph. Gryder filed a third party petition against Thomas but could not obtain service on him. Thomas did not testify. Thomas was indebted to Gryder and the latter’s refusal to pay any of the proceeds to Joseph was influenced by that fact, Gryder’s position being that it was entitled to collect Thomas’ debt out of the proceeds.

The background facts are that Thomas, in January 1971, purchased two trucks in Nebraska and received, for each, a Nebraska certificate of title. He mortgaged both trucks to General Motors Acceptance Corporation (“GMAC”). Thomas failed to maintain his mortgage payments and GMAC threatened foreclosure. On April 22, 1971, Joseph, at Thomas’ request, obtained a loan, paid off GMAC, acquired physical possession of both trucks, received the two title certificates, and, according to his testimony, “assumed ownership of the trucks.”

Joseph tried, without success, to sell the trucks. Thomas told Joseph that Gryder could sell them. At the instance of Joseph, Thomas and an employee of Joseph drove the trucks to Gryder’s place of business at Rolla, Missouri, and delivered them to Gry-der.

Gryder sold the first truck, the arrangement being that Gryder would receive, as its commission, the amount by which the purchase price exceeded $18,000. On January 3, 1972, Joseph met Gryder’s president, Cordial Gryder (“Cordial”), at the Mark Twain Bank (from which Joseph had obtained a loan to pay off the indebtedness to GMAC). The transaction involving the first truck was consummated. Joseph delivered the certificate of title to that vehicle to Cordial and received from him a cashier’s check for $18,000 which was applied on Joseph’s debt to the bank. Joseph testified that the check was made payable to him, “either me or to the bank to apply on my account.”

Cordial and Joseph then discussed the second truck, the one involved here. Cordial told Joseph that he did not think he could “get the same amount” for “your” second truck as he did for the first. According to Joseph, “we talked in numbers of $17,500, that was the amount he was going to pay me” and any “money above that” would be Gryder’s. Joseph authorized the sale of the second truck on that basis. Joseph told Cordial that he would furnish the title to the second truck “upon the sale and upon delivery of money.” At the trial Joseph testified he was still “ready, able and willing to do that.”

Joseph also testified that at all times he or his attorney had been in possession of plaintiff’s Exhibit 1, which was certificate of title No. 1-D 9408, the Nebraska title to the second truck. Exhibit 1 was issued to Thomas on January 21, 1971, and showed Thomas to be the owner. It also showed the GMAC chattel mortgage and the discharge of that lien on April 23, 1971. The reverse side of Exhibit 1 contains a form entitled “Assignment of Certificate of Title.” That assignment bears the signature of Thomas, together with the jurat of a notary public showing that it was subscribed and sworn to on July 26,1971. The name of Joseph appears as the assignee or buyer from Thomas. Joseph testified that Thomas signed it at Joseph’s attorney’s office, “and I don’t know what date it was, excepting what’s on this title, and it’s notarized.”

Gryder introduced testimony to the effect that Joseph gave his deposition in April 1974; that Exhibit 1 was produced at that deposition; that at that time the assignment form on it contained the signature of Thomas, but the space for the name of the assignee was left blank and it bore no jurat. Thus, argues Gryder, although the assignment on Exhibit 1 appears to have been executed on July 26,1971, it was in fact not filled in until some time after the April 1974 deposition.

Neither side invoked Rule 78.01(l)(b) V.A.M.R. to request findings of fact or grounds for the trial court’s decision. Under that rule “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73 requires this court to give due regard “to the opportunity of the trial court to have judged the credibility of witnesses.”

Gryder’s first point hinges upon the credibility of its evidence with regard to the date of the execution of the assignment on Exhibit 1. The trial court believed Joseph’s evidence on that factual issue and its judgment, in that regard, is not “clearly erroneous.” Farmers Alliance Mut. Ins. Co. v. Reed, 530 S.W.2d 470, 477[4] (Mo.App.1975). Accordingly, Gryder’s first point has no merit.

Gryder’s second point is that the trial court erred “in ruling that an agency relationship existed between the plaintiff and defendant or that a contract of sale on behalf of plaintiff was concluded by the defendant as the sale price was never agreed to.”

The lack of factual support for this point invalidates it. As has been seen, Joseph testified that he authorized the sale of the second truck on the basis of $17,500 net to Joseph, the “money above that” to be Gryder’s for acting as his selling agent. Gryder admitted receiving $20,500 for the second truck. There was testimony that Cordial called Thomas and said “Tell your dad I’ve got his truck sold.” Again, the trial court made no specific finding of fact on this issue but apparently it believed the evidence of Joseph. Its judgment, in that regard, is not clearly erroneous.

Gryder’s third point is that the sale between Joseph and “the buyer who had paid [Gryder] for the truck” was “void under § 301.210 V.A.M.S.” (dealing with motor vehicle sales and transfers) and that “the court erred in entering an order for specific performance under a contract which did not exist.”

So far as the transcript reflects, Gryder’s purchaser, H. J. & W., Inc., has not received title to the second truck, although the evidence shows that Joseph is still “ready, able and willing to furnish title.” Why H. J. & W., Inc. parted with $20,500 without receiving record title to the second truck may ignite curiosity, but the transcript affords no explanation.

Indeed Gryder, asserting as its shield that the Joseph-H. J. & W., Inc. transaction is tainted, confessed its own misdoing. Cordial admitted that H. J. & W., Inc. made application for a Missouri title to the second truck, that the application (plaintiff’s Exhibit 5) made no mention of the Nebraska title (although that information was called for by the form) and that he, on behalf of Gryder, executed on that application a certificate to the effect that “the facts herein are true.” Cordial admitted that the certification was false.

But the instant controversy is not one between Joseph and H. J. & W., Inc. The latter is not a party and its legal position is not under review.

If Joseph’s evidence is to be believed, and the trial court was not clearly erroneous in believing it, the transaction with H. J. & W., Inc. would have been completed in compliance with the applicable statute had Gry-der not attempted to extract from the sale proceeds the debt owed it by Thomas.

Gryder has never claimed ownership of the truck and yet it is in possession of $20,500 paid it by H. J. & W., Inc. Joseph, who contributed no blight to the transaction with H. J. & W., Inc., is without a truck and without his share of the proceeds. It would be anomalous, if not outrageous, if this situation were permitted to stand. Whether or not Gryder’s attack upon the validity of the Joseph-H. J. & W., Inc. transaction possesses plausibility, the law concerns itself more with what is right than with what may have the ring of logic.

It is neither necessary nor proper for this court to adjudicate the legality or illegality of the Joseph-H. J. & W., Inc. transaction, but even if it was illegal, the judgment of the trial court is not lacking in jurisprudential support.

The following language appears in 67 Am.Jur.2d Sales § 55, p. 168: “An agent is obligated to account to his principal for money or property belonging to his principal even though it was received in connection with an illegal transaction. This rule is generally applied to money or property received in connection with an illegal agreement to sell goods or an illegal sale of goods. Accordingly, although the seller cannot recover the price from the buyer if the sale is illegal, still if the buyer should pay the price to the seller’s agent, it is generally held that the seller may recover from the latter the amount so paid, for the reason that the implied agreement of the agent to pay over the money to the seller is not a part of the illegal sale, but is a disconnected and independent contract or liability.”

In 3 Am.Jur.2d Agency § 217, p. 591, the following language appears: “An agent who has received money or property belonging to his principal will not be heard to say that the principal received the money in an illegal transaction, or that the contract of agency was illegal, or that the principal engaged in business illegally. In such a case, the view has been taken that an agent receiving funds from an illegal contract is a mere depositary receiving the money for the principal.”

And in 15 Williston on Contracts, 3d Edition, § 1785, p. 337 it is said: . “[Misappropriation or embezzlement by an agent cannot be permitted although the agent with his principal’s authority was engaged in an unlawful enterprise. . There is a clear distinction between an illegal contract and enforcing a duty not springing wholly from the contract but arising from the receipt of moneys which in good faith belong to (the principal).”

“One cannot make a shield of a void contract to rob an associate.” Lasswell Land Co. v. Wilson, 236 F. 322, 330 (C.A.8, Mo.1916).

See also Twiehaus v. Rosner, 362 Mo. 949, 245 S.W.2d 107, 114[10] (1952); Hobbs v. Boatright, 195 Mo. 693, 724, 93 S.W. 934, 938 (1906); Rest. Agency § 412; Rest. Trusts § 422; Catts v. Phalen, 2 How. (U.S.) 376, 11 L.Ed. 306; Planters’ Bk. v. Union Bk., 16 Wall. (U.S.) 483, 21 L.Ed. 473. Allen v. Forbis, 186 F. 276 (C.A.9 1911); La Vaud v. Reilly, 295 N.Y. 280, 67 N.E.2d 242 (1946); Norton v. Blinn, 39 Ohio St. 145; Smith v. Blachley, 188 Pa. 550, 41 A. 619 (1898); Hertzler v. Geigley, 196 Pa. 419, 46 A. 366 (1900); Baldwin v. Potter, 46 Vt. 402; 3 C.J.S. Agency § 313, p. 109.

Another point raised by Gryder rests on the soundness of its third point and, the latter having been rejected, requires no discussion.

The judgment must be affirmed, but with one modificatior. The body of the judgment includes the language “and the court at the close of all the evidence finds the issues for the plaintiff and against the defendant Gryder P otors, Inc., and enters judgment for $17 500 upon delivery of assigned title in evidence as Plaintiff’s Exhibit No. 1.”

The italicized portion must be deleted. It may be regarded as surplusage rather than as a condition which might undermine the finality of the judgment and destroy its appealability. See Thompson v. Hodge, 348 S.W.2d 11 (Mo.App.1961) and Burger v. Burger, 481 S.W.2d 632 (Mo.App.1972). This is so because the exhibit (with the consent and in fact the tender of Joseph) was under the control of the trial court and is now on file here. If it was a valid condition, its fulfillment is at hand. But the delivery of the exhibit, standing alone, and whether to Gryder or someone else, would be an idle gesture. The utilization of it would result at most in the issuance of a new title to Joseph, an achievement, without more, of no significance to Gryder. Moreover, Gryder at no time has requested such relief. The italicized portion, being surplusage, “may be disregarded, leaving the remainder of the judgment standing.” Kennedy v. Boden, 231 S.W.2d 862, 866 (Mo.App.1950). See also Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315 (Mo.App.1971).

The judgment, so modified, is affirmed.

All concur.

      . A second defendant was Cordial Gryder, president of the corporate defendant. It was Joseph’s testimony that he did not know whether Cordial “operates as an individual or as a corporation.” Cordial testified that he acted “strictly as an officer of the corporation . . . and not in my individual capacity.” At the close of the evidence the trial court, on Cordial’s motion, dismissed the action as to him. Neither side questions the propriety of that ruling.

      . For Gryder, Cordial testified that Gryder claimed “no ownership” in the second truck, that Gryder was “merely an agent for the purpose of selling that vehicle.”

      . As stated earlier in the opinion, Joseph testified that he obtained possession of the trucks and their title certificates on April 22, 1971.
      The following language appears in Pearl v. Interstate Securities Co., 357 Mo. 160, 165, 206 S.W.2d 975, 978 (1947): “Plaintiff had lawful possession of the cars and the title certificates because the owners intended for him to have them; and this gave him an enforceable right of possession against third parties with no right thereto. Rankin v. Wyatt, supra. The parties intended the transaction to be an actual bona fide sale and plaintiff had paid the full purchase price. He could have completed compliance with Section 8382 so as to have title vested in him by writing in his name as assignee and getting a notary to take the acknowledgments of his assignors. See Crawford v. General Exchange Ins. Corporation, Mo.App., 119 S.W.2d 458. Certainly he had acquired a sufficient equitable interest to have had the right to compel his assignors to complete the transfer of legal title to him, unless they saw fit to return the purchase price and rescind the sale. See Boyer v. Garner, Mo.App., 15 S.W.2d 893; Riss & Co. v. Wallace, [350 Mo. 1208, 171 S.W.2d 641,] supra. The evidence, including the testimony of one of his vendors, shows that they claimed no rights against plaintiff. Therefore, he had lawful possession of the cars under a claim of right.”
      Section 8382 is now § 301.210 V.A.M.S. As to the applicability of § 301.210 to a sale in Missouri of a vehicle titled in another state, see Fawley v. Bailey, 512 S.W.2d 477, 479[1] (Mo.App.1974) and Lebcowitz v. Simms, 300 S.W.2d 827 (Mo.App.1957).

      . The April 1974 deposition was not offered into evidence. There was no showing that, at the time that deposition was taken, the certificate of title was marked for identification or attached to the deposition or described in the deposition. See Rule 57.03(g) V.A.M.R. Gry-der’s present counsel did not represent it at the deposition or at the trial.

      . In Manchester Ins. & Ind. Co. v. State Farm Mut. Auto. I. Co., 460 S.W.2d 305 (Mo.App.1970) the following appears at p. 307:
      “This leads us to the second link in the ownership claim: Did Dreier reassign the Chrysler title certificate to Charles Cash? If so, ownership passed immediately to Cash even though there is no evidence he applied for a new title certificate in his name. Such new certificate when issued ‘is merely evidence of the title which the buyer has previously acquired by virtue of the assignment and transfer to him of the original certificate.’ Crawford v. General Exchange Ins. Corporation, Mo.App., 119 S.W.2d 458[1-4].”

      . The Restatement contains this remarkable illustration: “At the request of T, and upon T’s promise to pay him therefor, P murders B. After P’s apprehension for the crime, he employs A to obtain the promised money from T, and A so obtains it. A is under a duty to deliver this to P.”
      Fortunately no need exists to determine whether Missouri would carry the principle so far.

      . Where a person employed another to make sales of candy by a scheme which was violative of the law prohibiting lotteries, and in a suit by the principal against the agent for the money so received the agent pleaded the illegality of the transaction by which he obtained the money. It was held that the action would lie, the court saying: “The defendant (the agent) insists that, inasmuch as the plaintiff could not have enforced the contracts of sale as between himself and the purchaser, therefore, as the purchaser has performed the contracts by paying the money to the plaintiffs through me, as their agent, I can now set up the illegality of the contract of sale to defeat an action brought to enforce a contract on my part to pay the money that I as agent received, over to my principal. In other words, because my principal did not receive the money on a legal contract, I am at liberty to steal the money, appropriate it to my own use, and set my principal at defiance. We think the law is well settled otherwise.”