author: ALDEN A. STOCKARD, Special Judge.

text:
    Elizabeth J. DYCHE, Respondent, v. William E. DYCHE, Defendant, and General Motors Corporation, Garnishee-Appellant.
    No. 60378.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1978.

      Paul Scott Kelly, Jr., Terry J. Brady, John J. Yates, Dennis E. Egan, Gage & Tucker, Kansas City, for garnishee-appellant.
    William C. Paxton, Independence, for respondent.
    Thos. C. Otter, Kansas City, for amicus Bendix Corp.
    Lathrop, Koontz, Righter, Clagett, Parker, & Norquist, Kansas City, for amicus Armco Steel Corp.
   ALDEN A. STOCKARD, Special Judge.

Garnishment.

The issue presented for decision is whether a garnishment to collect an attorney’s fee granted to the wife in a proceeding under the Dissolution of Marriage Act, §§ 452.300-452.415, Laws of Missouri 1973, p. 470, is subject to the 25% limitation of the federal Consumer Credit Protection Act, 15 U.S.C.A. § 1673(a), and the corresponding Missouri Statute, § 525.030(2) RSMo Supp. 1971. The trial court held it was not, and the Missouri Court of Appeals, Kansas City District, affirmed. Upon application of the garnishee the case was transferred here by order of this court, and we now determine the cause “the same as on original appeal.” Mo.Constit. Art. V, § 10.

Substantial portions of the opinion by the Kansas City District of the Court of Appeals will be stated herein without the use of quotation marks.

Elizabeth and William Dyche were divorced in 1972 and the decree granted custody of the minor children to Elizabeth Dyche and awarded her $100 per month per child as child support. Later that year the custody provisions of the decree were modified by stipulation to award custody to William. In 1974, after the effective date of the Dissolution of Marriage Act, supra, Elizabeth moved for modification of the decree and sought to have custody of the children returned to her, to have child support reinstated, and to be awarded attorney fees and suit money. Pursuant to this motion the court modified the custody provisions, awarded a specified amount for child support, and awarded “partial attorney’s fees in the sum of One Thousand Five Hundred Dollars.”

The judgment for attorney fees was not paid, and Elizabeth requested a summons of garnishment in aid of execution. In September 1975, garnishment was served on William’s employer, General Motors, who answered that it was indebted to William for wages in the total net sum of $1,239.90, but that pursuant to the provisions of the federal Consumer Credit Protection Act, supra, it was withholding only 25% of that amount, or $309.98 for payment into the registry of the court.

Elizabeth filed a denial to the answer of General Motors in which she asserted that the judgment sought to be collected constituted an award of attorney fees to a party in a divorce proceeding and is within the “support” exception to the statutory limitations on garnishment.

Both Elizabeth and General Motors moved for judgment on the pleadings. The trial court sustained Elizabeth’s motion, overruled the motion of General Motors, and entered an order requiring General Motors to pay into court the full $1,239.90 which constituted William’s total disposable earnings held by General Motors at the time when it filed its answer to garnishment. See Rule 90.18.

Elizabeth asserts on this appeal that the claim of exemption should have been made to the levying officer, who she contends had the exclusive authority to rule the issue, and that the Circuit Court before whom General Motors presented the issue had no jurisdiction to rule thereon. She cites Dancer v. Chenault, 527 S.W.2d 714 (Mo.App.1975), and Pacific Finance Loans, Inc. v. Richardson, 412 S.W.2d 509 (Mo.App.1967).

We do not consider the Dancer ease to be in point. It involved garnishment of a bank account, not wages, and the decision rests upon the construction of statutory provisions other than § 525.030. The Pacific Finance case did involve the garnishment of wages, but it was decided before the 1971 amendment to § 525.030 which added a new provision, subsection (3), which provides: “In any proceeding of garnishment or sequestration of wages under the provisions of sections 525.010 to 525.480, the maximum part of the aggregated earnings of any individual in any workweek which shall be subject to garnishment or sequestration pursuant to the provisions of subsection 2 of this section shall be construed to constitute all wages or earnings of the defendant in the garnishee’s possession or charge or to be owing by him to the defendant in that week.” This new provision prohibits the garnishee from reporting in its answer to garnishment any amount in excess of the maximum prescribed by subsection 2. General Motors followed the procedure contemplated by the statute when it raised this issue in its answer to garnishment. In addition, the prior rulings on the subject have been made inapplicable insofar as the amount of garnishment of wages is limited by the federal Consumer Credit Protection Act. 15 U.S.C.A. § 1673(c) provides: “No court of the United States or any State may make, execute, or enforce any order or process in violation of this section.” Regardless of any obligation upon other persons, such as the levying sheriff, to observe restrictions on garnishments, the principal duty to apply the restrictions under the Consumer Protection Act is a judicial one and is on the court. The trial court has jurisdiction of, and the responsibility to enforce, the garnishment restrictions created by the federal statute in question and the Missouri statute supplementing it.

Prior to the enactment of the Dissolution of Marriage Act there was no express statutory authorization for the award of attorney fees in a divorce proceeding or in proceedings incidental thereto. However, the authority to make such an award was found as the result of judicial interpretation that the allowance of attorney fees was a form of and was included within the term “alimony” which was authorized by what was then § 452.070. See Rutlader v. Rutlader, 411 S.W.2d 826 (Mo.App.1967), and the cases there cited. Regardless of the judicially determined basis for making the award, it was only indirectly an award for the support of the wife. It was an award of an amount to be paid to the wife which in turn was to be paid by her to another person who was not a party to the action. At most it relieved the wife of a financial obligation to a third party, and permitted her to litigate her claims in the divorce proceeding.

At the time the order was entered in this case allowing Elizabeth attorney fees the Dissolution of Marriage Act, §§ 452.-300-452.415 was in effect. Section 452.335 of that act grants authority to the court to award maintenance to either spouse under certain conditions and in such amounts and for such periods of time as it deems just after considering specified relevant factors. Section 452.340 authorizes the court to order either or both parents owing a duty of support to a child of the marriage to pay a reasonable amount for his support after considering specified relevant factors. In recognition of the need to assure payment, if possible, of these awards the court is authorized by § 452.345 to require that such maintenance or support payments be made to the circuit clerk for remittance to the person entitled to receive them, and by § 452.350 the court is authorized to order the person obligated to pay support or maintenance to make an assignment of a part of his periodic earnings or other income. It is reasonably clear it was the legislative intent that any award for the support of a spouse or for the support of a child should be made pursuant to these two statutory provisions.

In § 452.355 separate provision is made for the court to award a spouse litigation costs and attorney fees “after considering all relevant factors including the financial resources of both parties,” and the court is authorized to order the attorney fee to be paid directly to the attorney who may enforce the order in his own name. This award is not subject to the provisions of § 452.345 or § 452.355. The separate treatment of maintenance and child support, as one type of an award, and litigation costs and attorney fees as another type of an award, demonstrates a legislative intent not to continue the authority to award attorney fees as an incident to alimony or the present substitute for alimony which is designated as maintenance. The authority to award attorney fees is no longer premised on the authority of the court to award alimony, and it is not premised on the authority to award maintenance or child support. For example, attorney fees may be awarded to a party in a dissolution of marriage proceeding when there is no issue pertaining to maintenance or child support, but when the only issue is the proper division of the marital property, or the designation of what is or is not marital property. The authority to award attorney fees now results from an independent and separate statute, and as such is not an “Order * * for the support of any person.” It is just what the statute says it is; an “Order * * to pay a reasonable amount * * * for attorney’s fees.”

After the enactment in 1968 of the federal Consumer Protection Act containing the restrictions on garnishment previously mentioned, the legislature of Missouri amended § 525.030, the wage garnishment statute to incorporate the limitations specified in 15 U.S.C. § 1673(a). In doing so, the legislature exercised its discretion to provide for agreater limitation on garnishment when the wage owner is a resident head of a family by reducing to 10% the amount of wages subject to garnishment. § 525.-030(2)(c). It could, and in our opinion did, place a further limitation by treating an award for attorney fees separate and apart from an award for maintenance and support, and in our opinion there was a good and impelling reason for doing so. The primary purpose of maintenance and child support is to provide subsistence for the spouse and the children; not to provide immediate payment of a debt to a third party. If wages are made subject to garnishment without limitation for the payment of an award for attorney fees, the whole of the wages, possibly over several pay periods, could be garnished for that purpose thereby making it impossible for the wage earner to meet his obligations for maintenance and child support. This would defeat the purpose of the awards for maintenance and child support, and would permit the attorney for the spouse to whom the award was made to receive preferential treatment over other creditors of the debt- or, for example, his own attorney.

Elizabeth relies on several cases arising under § 15(a)(7) of the Bankruptcy Act, 11 U.S.C. § 35(a)(7). It provides that “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, * * * except such as * * * (7) are for alimony due or to become due, or for maintenance or support of wife or child, * * *.” This provision was added to the Bankruptcy Law by Public Law 91-467 in 1970. However, prior to the enactment of the above provision it was uniformly held that alimony was not a provable debt under the Bankruptcy Law and therefore not released by a discharge in bankruptcy. Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009 (1901); Smith v. Smith, 7 F.Supp. 490 (D.C.W.D., N.Y.1934); Cederberg v. Gunstrom, 193 Minn. 421, 258 N.W. 574 (1935); Remondino v. Remondino, 41 Cal.App.2d 208, 106 P.2d 437 (1940). Subsequent to the 1970 amendment it has uniformly been held that when under state law an award of attorney fees is deemed to be in the nature of alimony or maintenance and support the obligation is non-discharge-able in bankruptcy. Matter of Cornish (Schiller v. Cornish), 529 F.2d 1363 (7th Cir. 1976); Jones v. Tyson, 518 F.2d 678 (9th Cir. 1975); Nunnally v. Nunnally, 506 F.2d 1024 (5th Cir. 1975). These cases pertain to the existence or preservation of a debt; not to the manner or means of collecting it, which is a matter governed by State procedures when those procedures do not purport to provide for less limitation on garnishments than the federal Consumer Credit Protection Act. We do not consider them to be controlling as to the proper construction of the Dissolution of Marriage Act of this State or of § 525.030(2)(c).

The words “any order of any court for the support of any person” as contained in § 525.030-2 are not ambiguous. When given their ordinary meaning they refer to child support or maintenance, as those terms are used in the Dissolution of Marriage Act, or any other order to provide for subsistence or maintenance, but they do not include any order entered pursuant to § 452.355 that one party in a proceeding under the Dissolution of Marriage Act pay to the other party an amount for that party’s attorney fees. Therefore, General Motors correctly withheld only 25% of William’s disposable earnings.

The judgment is reversed and the cause remanded with directions to enter judgment for garnishee.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ. and HOUSER, Special Judge, concur.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . 15 U.S.C.A. § 1673(a) provides: “Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed (1) 25 per centum of his disposable earnings for that week, *
      Section 525.030-2 of the Missouri Statutes provides: “The maximum part of the aggregate earnings of any individual for any workweek, after the deduction from those earnings of any amounts required by law to be withheld, which is subjected to garnishment may not exceed (a) twenty-five percentum * *

      . The exception referred to is in 15 U.S.C.A. § 1673(b) and is as follows: “(b) The restrictions of subsection (a) of this section do not apply in the case of (1) any order of any court for the support of any person. * *
      Section 525.030-2 of the Missouri Statutes provides: “The restrictions on the maximum earnings subjected to garnishment do not apply in the case of any order of any court for the support of any person * *


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmy Dale CHAMPION, Defendant-Appellant.
    No. 10814.
    Missouri Court of Appeals, Springfield District, En Banc.
    July 18, 1978.
    Motion for Rehearing and for Transfer Denied Aug. 7, 1978.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
   BILLINGS, Chief Judge.

Jimmy Dale Champion was jury convicted in Dunklin County of first degree burglary of the Elisha McComb dwelling house and in this appeal challenges the sufficiency of the evidence to support his conviction and seeks plain error review of evidence introduced at his trial.

We have read the trial transcript and the briefs of the parties. The sufficiency of the evidence issue was not preserved for appellate review in the defendant’s motion for new trial, but we find there was substantial evidence, both direct and circumstantial, to support the verdict of the jury.

Our review of the trial transcript leads to the conclusion that there was no manifesto injustice or miscarriage of justice in defendant’s trial and conviction. No error of law. appears and the plain error doctrine of Rule 27.20(c), V.A.M.R., is not applicable.

An opinion would have no precedential value.

Judgment affirmed. Rule 84.16(b), V.A. M.R.

All concur.


author: TITUS, Judge.

text:
    MIDELLA ENTERPRISES, INC., Plaintiff-Appellant, v. MISSOURI STATE HIGHWAY COMMISSION, Defendant-Respondent.
    No. 10461.
    Missouri Court of Appeals, Springfield District.
    July 18, 1978.
    Motion for Rehearing or to Remand for Receipt of Additional Evidence Denied Aug. 7, 1978.

      Paul L. Bradshaw, Joseph A. Bohrer, Neale, Newman, Bradshaw & Freeman, Springfield, for plaintiff-appellant.
    Bruce A. Ring, Chief Counsel, Jefferson City, John H. Gladden, Asst. Counsel, Joplin, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Midella Enterprises, Inc. (Midella), initiated proceedings in two counts against the Missouri State Highway Commission (Commission) to quiet title to certain real estate and for declaratory judgment. From portions of the judgment rendered thereon in favor of the Commission, Midella prosecutes this appeal.

Midella is the fee owner of land situate at the southwest corner of the intersection of U.S. Highways 60 and 71 in Newton County. In 1948, KAMO Electric Cooperative (KAMO) acquired by grant from Midella’s predecessors in title a 100-foot “Right of Way Easement” over the land for the erection and maintenance of its power lines. The east-west easement intercepts a segment of north-south Highway 71’s right-of-way at its eastern terminus. The eastern boundary of the land burdened with the easement, (now owned by Midella) is also contiguous with the Highway 71 right-of-way. In 1959 the Commission obtained from the Coopers (Midella’s predecessors in title to the land burdened with the easement) all rights of direct access to the highway, but never did so with respect to such rights of access as KAMO possessed by virtue of its easement.

KAMO, in 1974, partially released the easement by quitclaim deed to Midella, retaining for itself certain rights in connection with the maintenance of its electrical transmission lines. On the strength of this apparent increase in its ownership interest in the land as owner of the servient tenement, and to forward its building plans for a shopping center, Midella asserted a right of access to both lanes of Highway 71 along the situs of the KAMO easement, and sought permission to construct a roadway thereon from the Commission. When the Commission denied permission to build this road, or any other, to facilitate its claimed right of access, Midella brought the present action.

The trial court did not agree with Midel-la’s interpretation of the rights it acquired via the 1974 quitclaim deed from KAMO. Although the court quieted title in Midella to the land demarcated by the KAMO easement, subject to no adverse interests except the rights reserved by KAMO, the court declared, inter alia, that: “Plaintiff [Midel-la] has no right of access to and from its land to U.S. Highway 71, and no right to construct a driveway to permit such access by the (KAMO) easement . . .

Midella’s single assignment of error on appeal is as follows: “The trial court erred in granting judgment for [the Commission] on both counts of [Midella’s] petition, because the right-of-way easement executed by [Midella’s] predecessors in title granted, in general terms, a specifically described right-of-way, without limitation as to its use; and the court erred by interpreting the grant in a way which would exclude its use to gain access to Highway 71.”

Thus stated, Midella’s point on appeal does not apprise this court of precisely which of several distinct, if related, issues resolved against it in the trial court’s judgment Midella is contesting. Prom its brief, however, it is apparent that Midella’s attack on the judgment is confined to the trial court’s construction of the 1948 “Right-of-Way Easement” so as to prohibit Midella’s claimed rights of access and roadway construction through the easement where it abuts onto Highway 71.

As the owner of the servient tenement, Midella was privileged to make such use of the land as would not be inconsistent with the provisions of the original 1948 grant to KAMO even prior to 1974. Subsequently those rights were augmented by KAMO’s quitclaim deed to Midella, so that its use of the land burdened by the easement is now subject only to KAMO’s reservations in the deed.

However, for reasons which will appear hereafter, the nature and extent of Midel-la’s property rights in the easement are not determinative of the issues raised on appeal regarding its rights of access to Highway 71 and need not be determined precisely. Instead, we will limit ourselves to a determination of only those questions essential to a proper disposition of this appeal. Kestner v. Jakobe, 412 S.W.2d 205, 207[1] (Mo.App.1967).

We concur with the judgment of the court below in result. However, we are constrained to point out our divergence from the rationale of the trial court in reaching that result and to modify, in certain respects, the trial court’s findings of fact and law made pursuant to Midella’s request.

One of the trial court’s findings, predicated on the parties’ stipulation to that effect, was that the KAMO easement extended eastward across the western right-of-way line and the southbound lane of Highway 71. In addition to the stipulation itself, other evidence bearing upon the extent and location of the easement (consisting of copies of the 1948 and 1974 instruments of conveyance, exhibits, diagrams and testimony) have all been introduced and made part of the record without objection. A careful review of this evidence reveals that the stipulation of the parties, necessarily based upon their construction of the instruments of conveyance, is in error.

Ordinarily courts are bound by stipulations of litigants. But that general rule cannot be invoked to bind or circumscribe a court in its determination of questions of law; and no agreed statement of facts can fix a conclusion of law. Inasmuch as the stipulation of parties (and hence the trial court’s findings) depends upon an agreement as to the construction and effect of a written instrument, or upon an agreement concerning the legal effect of admitted facts, it is not binding upon this court. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722 (1917).

A careful plotting of the location of the easement from the legal descriptions contained in the instruments of conveyance, a review of diagrams and exhibits purporting to illustrate, inter alia, the relative positions of easement and the Highway 71 right-of-way (as well as the testimony on the subject), compel the conclusion that the KAMO easement, as it originally existed in 1948 and as it was partially released by deed to Midella in 1974, only extended eastward so as to abut the west right-of-way line of Highway 71 and no farther.

The actual location of the KAMO easement, relative to the western right-of-way line of Highway 71, when taken with other facts manifest in the record, render it immaterial whether Midella acquired a limited or unlimited right of use with respect to the easement by KAMO’s 1974 quitclaim deed.

As already noted, Midella is the owner of the land burdened by the KAMO easement. As has also been shown previously, the Commission acquired from a predecessor in title (the Coopers) all abutter’s rights of direct access to Highway 71 appurtenant to that land.

The 1959 instrument effecting this transfer of rights to the State contains the following promise: “[EJxcept that there is reserved and excepted to Grantors, their heirs and assigns, the usual right of direct access (1) to any adjacent outer-roadway if, and while it may be maintained by proper authority in front of said land, and (2) along it to and from the nearest lane of the thruway or public highway. This conveyance is made upon the condition and understanding that the State will construct and maintain such an adjacent outer-roadway fronting on Grantor’s land . . . .” (Our emphasis). The parties have stipulated that this promise of access has been fulfilled and that Midella does in fact have direct access to Highway 71 via this outer roadway: i. e., “13. Plaintiff [Midella] has no direct access from its property onto U. S. Highway 71 except to the outer roadway at the West edge of Highway 71, as the same is now located, at the SE corner of plaintiff’s property. ... 19. The outer roadway mentioned in the Deed . . . [partially recited above] has been built and is in place in accordance with that deed.” (Our emphasis).

Through art. 4, § 29, Constitution of Missouri, V.A.M.S., the Commission is authorized to “. . . limit access to, from and across state highways where the public interest and safety may require, . . . and it may exercise this power by agreement with the abutting landowner as well as through eminent domain. Shepherd v. State ex rel. State Highway Com’n, 427 S.W.2d 382, 386[1] (Mo.1968).

Under the admitted facts, therefore, Mi-della’s rights of access as an abutting landowner — save for the small segment of property abutting Highway 71 demarcated by the KAMO easement — have been validly limited by the Commission pursuant to agreement with its predecessor in title. Mi-della does not claim the access afforded its property under this agreement with the Commission is blocked or unreasonably restricted; nor does it claim compensation for its alleged access rights through the KAMO easement. Midella’s sole contention, in essence, is that it is entitled to access from a particular point of its abutting property because of the Commission’s failure to condemn or otherwise acquire access rights appurtenant to that particular segment of its abutting property. Midella’s claim is clearly incompatible with controlling precedent in this jurisdiction regarding the nature of an abutting landowner’s rights in such circumstances. These are clearly defined in State ex rel. State Highway Com’n v. Meier, 388 S.W.2d 855, 857[1] (Mo.banc 1965), as follows: “An abutting owner’s property right to ‘access’ is better described as the right of ingress and egress to and from his property and the abutting public highway. The right also includes the further right to connect with or reach the system of public highways, which right is also subject to reasonable restrictions under the police power of the State in protecting the public and facilitating traffic. The right does not include the right to travel in any particular direction from one’s property or upon any particular part of the public highway right-of-way . . . .” (Our emphasis). At page 859[9] the court further said that although an abutting property owner’s rights of access are property rights, which cannot be taken without compensation, these rights are subject to well-recognized limitations and exclusions: “One of these limitations is that the right of ingress and egress does not extend to every foot of the condemnee’s frontage, but under the police power of the State the right may be limited to a reasonable access under the existing facts and circumstances. . . . Every citizen holds his property subject to the valid exercise of the police power. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 634[1] and cases cited.”

Midella’s right of access is therefore subject to the reasonable exercise of the police power of the Commission. The limitation of access involved in the instant case — the restriction of access to an outer roadway fronting on the owner’s property abutting the highway, which subsequently connects with the highway property — has not even been held to constitute a compen-sable taking or interference with the abutting landowner’s rights of access. State ex rel. State Highway Com’n v. Brockfeld, 388 S.W.2d 862, 864[1, 2] (Mo.banc 1965). Absent a showing that the access remaining to Midella is unreasonably restricted, and confronted with record facts wholly inconsistent with such a conclusion, it follows that the Commission did not act in derogation of any right of access to Highway 71 possessed by Midella.

It therefore follows that the judgment of the court nisi is affirmed and remanded with directions to modify its judgment in accordance with this opinion.

All concur.

      . To acquire an easement, there must be a dominant and servient estate and they must not be lodged in the same person. One who owns the fee cannot acquire an easement over it. Ball v. Gross, 565 S.W.2d 685, 688[4][6] (Mo.App.1978); Marshall v. Callahan, 241 Mo.App. 336, 346, 229 S.W.2d 730, 735[9] (1950). Generally, the owner of an easement may release the right to the owner of the servient estate via a deed or writing. 28 C.J.S. Easements § 61a., p. 727.

      . Restatement, Property, Div. V, Servitudes, § 486: “The possessor of land subject to an easement created by conveyance is privileged to make such uses of the servient tenement as are not inconsistent with the provisions of the creating conveyance.”

      .KAMO’s 1974 quitclaim deed to appellant contained the following reservations: “Reserving unto the Grantor right to maintain its electric transmission lines over and across said property and to construct, operate, repair, and maintain on said premises the present structures for its electric transmission or distribution, together with appurtenances including without limitation anchors and guys, and to operate and maintain such additional poles or structures as may from time to time be necessary or desirable, and to license, permit or otherwise agree to the joint use or occupancy of said line or system by any other person, corporation or association.”

      . It is well settled that the judgment of the trial court, even if based on an incorrect theory, should be affirmed, if, on the evidence, such a result could properly have been reached and this rule is equally applicable to the correct result in a declaratory judgment action. Ehrle v. Bank Bldg. & Equip. Corp. of America, 530 S.W.2d 482, 491 (Mo.App.1975).

      . The parties jointly submitted certain stipulations of fact at trial which were adopted by the court below in its findings and made part of the record on appeal; the stipulation and finding referred to follows in part: “The real estate conveyed by Cooper and which is described in paragraph ‘6’ herein, included that real estate subject to the right-of-way granted KAMO Electric Cooperative, Inc. and KAMO’s right-of-way runs across and intersects the purported highway right-of-way conveyed by Cooper to the State of Missouri, for highway purposes.

      . Stine v. Kansas City, 458 S.W.2d 601, 606 (Mo.App.1970); 73 Am.Jur.2d, Stipulations, § 5, at p. 539.

      . Aubuchon v. Bender, 44 Mo. 560, 570 (1869).

      . The only testimony regarding whether or not the KAMO easement transected the Western right-of-way line of Highway 71 was adduced from respondent’s witness, District Chief Designer Lewis Hancock, who testified that the easement had stopped at the right-of-way line in 1948, when' KAMO acquired it; that the location of the right-of-way line has remained the same to the present; and that the original easement never did go across the location of the old highway so as to provide access to Highway 71.


author: PRITCHARD, Judge.

text:
    Richard W. DARK and N. P. Sandbothe, Appellants, v. Roy E. MURRAY and Joyce B. Murray, Respondents.
    No. KCD 29148.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Robert C. Smith, Columbia, for appellants; Smith, Lewis & Rogers, Columbia, of counsel.
    Carl F. Sapp, Columbia, for respondents; Sapp, Woods & Orr, Columbia, of counsel.

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

This is an appeal from a judgment, court-tried, denying appellants their claim for commission in the leasing of respondents’ property in Columbia, Missouri, to the Burger King Corporation. The issue is whether an implied contract for recovery on the theory of quantum meruit was proved.

Dark first learned of respondents’ property by seeing a sign on it, and then he called the telephone number on the sign. Mrs. Murray answered and told him that respondents preferred to lease the property at not less than $700.00 per month net. Because Dark knew that Sandbothe had been employed as a real estate purchasing agent for Burger King, and that Sandbothe had told him of its interest in the Columbia area and other Missouri sites, Dark contacted him. In March 1973, Dark took Sandbothe to respondents’ home, there talking with Mrs. Murray. At that time, Dark was still employed at a salary for land acquisition for Shell Oil Company. He did not ask Mrs. Murray for a listing of the property because he would probably not have been given one, he did not discuss his fee with Mrs. Murray, and he did not identify himself as a real estate broker. He was told respondents wanted to lease the property, and he was given a copy of the metes and bounds description of the property. Dark testified that he told respondents that Sandbothe was a former Burger King employee, and Sandbothe confirmed this, but in his deposition he testified, “We were interested in Burger King, you know, a Burger King restaurant on the site.” Dark and Sand-bothe again visited respondents in April, 1973, and were then told again that a lease was preferred, but if the property was sold, respondents would have to get at least $112,000.00 net.

Later, Sandbothe sent a standard Burger King land sales contract to Dark, who filled it in but respondents declined to sign it. Dark did nothing further about the property for several months. Then, in July, 1973, Sandbothe called Dark and told-him that a man (Eaves) from Burger King would be in to look at the property July 10, 1973, and that Mrs. Murray would meet with Eaves on that day. Sandbothe never did see Eaves, and he told Dark that he, Sandbothe, would not be there on July 10.

Sandbothe and Dark went to respondents’ property with the intention of buying it. Sandbothe told Mrs. Murray that the people he and Dark represented preferred to buy. He testified further that he never had a listing from respondents and, on deposition, that they never agreed to pay a commission or fee for leasing their property. At trial, Sandbothe testified that respondents did agree to pay a commission.

By deposition, Donald Eaves testified that Sandbothe worked with him in getting Burger King sites from May to December, 1973, and that he took over Sandbothe’s position with Burger King. Eaves negotiated with respondents, and the lease was completed by his legal department late in September.

Mrs. Murray testified that Dark introduced Sandbothe as being with Burger King, and that the latter said he was looking for Burger King locations for it to buy. Appellants never told respondents that they wanted to represent them concerning their land, and respondents believed that they were talking to Burger King representatives. There was no discussion of a commission. Respondents first discovered that Sandbothe was not a representative of Burger King from Eaves when he came to see them July 10, 1973. Respondents never did agree to pay appellants a commission, and never did ask appellants to represent them.

Appellants’ first point is that the evidence established an implied contract to pay a commission. The testimony conflicted somewhat, which was for the trial court to resolve, as to whether appellants represented themselves to be acting individually or independently, or whether they were representatives of Burger King for land acquisition purposes. The trial court quite obviously chose to believe respondents’ version that appellants held themselves out as representing Burger King, and respondents believed this to be true. Nothing was mentioned about a listing or a commission and the amount thereof until after the lease was consummated by Eaves. Neither appellant was present when the lease was executed. The evidence strongly supports the conclusion that respondents correctly thought they were dealing directly with Burger King through Eaves and appellants as its representatives.

In this situation, an analogous case is controlling. In Windsor v. International Life Insurance Company, 325 Mo. 772, 29 S.W.2d 1112 (1930), the plaintiff came unsolicited to contact defendant’s treasurer about an.exchange of land with it, and the treasurer believed plaintiff was representing the owner of the other land. Plaintiff did not discuss representing defendant, and never mentioned compensation until after the property exchange had been made. The facts were further that defendant never asked plaintiff to produce a person with which to exchange property, and never agreed to pay him a commission. The judgment for plaintiff was reversed, the court saying that the evidence demonstrated beyond a doubt that plaintiff contacted defendant either as the owner of the building or representing the owner, and at page 1115[2], “A broker’s right to be compensated, following the sale or trade of an owner’s real estate, is predicated on an express or implied contract of employment. A volunteer broker, even though he is the efficient or procuring cause of the sale or trade, may not enforce compensation, as his service will be held to be gratuitous. Delahunt v. Thuener, 317 Mo. 465, 296 S.W. 86; 9 C.J. 554; 4 R.C.L. 298; Stevens v. Brimmer, 35 Wyo. 452, 251 P. 1, 49 A.L.R. 919.” Smith v. Piper, 423 S.W .2d 22 (Mo.App.1967), cited by appellants, had the distinguishing fact that the vendor made a listing agreement with the broker, justifying the finding that he was not a volunteer. The court, page 25[1, 2], did note, “To establish such an agreement [employment to produce a buyer] between a broker and an owner it must appear that the owner authorized the broker to produce a buyer and the broker agreed to seek a buyer, and that the circumstances gave the owner reason to think the broker’s services were not to be gratuitous but, instead, with expectations of compensation from the owner. See Ballentine v. Mercer, 130 Mo.App. 605, 109 S.W. 1037[5-7], * * *.” See also, Hoover v. Whisner, 373 S.W.2d 176, 182[4-6] (Mo.App.1963), although holding that there was an implied contract because of a request by the broker for a listing, and another tract of the vendor was admittedly listed, the court noted, “To support their claim for compensation, plaintiffs were not required to do more than to show from all the facts and circumstances that defendant knew they were brokers, who, in the prosecution of their vocation, were offering their services to him for his benefit, and were not approaching him as the representative of the other party to the proposed transaction.” [Italics added.]

Appellants next say that they were entitled to recover because they rendered a valuable service to respondents and were therefore entitled to recover under the theory of quantum meruit “whether there was or was not an implied contract between the parties.” This is not the law. There must be facts and circumstances, according to the foregoing cases and authority giving rise to an implied promise to pay for valuable services, and none here exist, as the trial court found. In O’Neal v. Mavrakos Candy Co., 364 Mo. 467, 263 S.W.2d 430, 431 (1953), there was evidence of employment, and plaintiff told Mavrakos that the owners would not pay a commission, and he would have to do so, but the amount was not in evidence. That case is not helpful to appellants. There is here no evidence that respondents gave any subsequent assent that appellants act for them, thus making a pri-ma facie case of a request. Thus, Groves Bros. & Co. v. Schell, 379 S.W.2d 857 (Mo.App.1964), does not aid appellants. See Rest., Restitution, § 2, p. 15; and Missouri Annotations, pocket supplement, Rest. Restitution, § 112.

By their last point appellants say that the trial court erred in not finding for them as a matter of law, and this court is not bound by the trial court’s application of either fact or law. The entire case turned upon the trial court’s determination of the facts, and it does not appear that it misapplied the law to those facts as found. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Henry W. EDMISTON, Director, Division of Insurance, Dept. of Consumer Affairs Regulation and Licensing, State of Missouri, Receiver for Medallion Insurance Co. and Missouri General Insurance Co., Plaintiff-Appellant, v. J.C.G.-MEDALLION, INC. et al., Defendants, Emerald Financial Corporation and Arthur E. Curtis, Trustee, Movants-Respondents.
    No. KCD 29154.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      John C. Craft, William C. Jolley, Jr., Kansas City, for plaintiff-appellant and Medallion Receivership.
    Duke W. Ponick, Jr., Kansas City, for movants-respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and CLARK, Special Judge.
   SHANGLER, Presiding Judge.

This action by Emerald Financial Corporation to exercise the power of sale under a deed of trust which secures the promissory note of Medallion Insurance Company and Missouri General Insurance Company then in default was incident to a proceeding by Edmiston, Director of the Division of Insurance of Missouri, to enjoin further transaction of business by Medallion and Missouri General and to order the liquidation of these insurance companies. The circuit court entered an order of approval for Emerald to fully exercise its power of sale of the security. Edmiston, as statutory receiver of the Medallion and Missouri General companies, appeals on the contention that the promissory note which the deed of trust purports to secure was without consideration.

The disputed note transaction was the culmination of a reticulated train of stock and fiscal maneuvers meant to relieve the straits of the principal actors.

On May 25, 1975, Medallion Insurance Company and Missouri General Insurance Company executed their promise to pay the Emerald Financial Corporation $83,898.71 and secured that undertaking by a deed of trust on real estate. The May 25, 1975, note was the renegotiation and consolidation of two prior indebtednesses. The first was a demand note for $40,000 dated December 3, 1974, executed by the two insurance companies to Emerald for money received. The second was a note for $42,-773.71 dated December 31, 1974, executed by J.C.G.-Medallion, Inc. [full owner of both the Medallion and Missouri General companies] which promised payment of $25,000 on demand after March 1,1975, and the balance due on January 1, 1978. The consideration for the note was the transfer of stock of the Spectrum Services Corporation, a computer services company, to J.C. G.-Medallion. The parent company, J.C. G.-Medallion, in turn, donated the stock to the capital and surplus of wholly-owned Medallion and Missouri General insurance companies. Both notes fell into default.

On May 9, 1975, J.C.G.-Medallion and Emerald by separate instrument agreed to terms of renegotiation. J.C.G.-Medallion promised to pay Emerald on or before May 25, 1975, the sum of $43,898.71 [the face amount of the December 31,1974, note plus interest] and concurrently Emerald promised to lend that sum of money to Medallion and Missouri General. The agreement specifically acknowledged the December 3, 1974, note by Medallion and Missouri General for $40,000, also in default, consolidated that indebtedness with the new obligation by Medallion and Missouri General for $43,898.71 and secured them both by a deed of trust on the same property already pledged for the performance of the $40,000 note. The agreement of May 9, 1975, cul-urinated in the promissory note transaction of May 25, 1975, — now in dispute — whereby Medallion and Missouri General promised to pay Emerald $83,898.71.

The receiver Edmiston contends that the consideration failed on both aspects of the transaction — the promise to pay the antecedent $40,000 indebtedness and the new $43,898.71 obligation. As to the $40,000, the receiver Edmiston contends that loan was an incident to a scheme for corporate reorganization for which the consideration failed — or at least was not altogether regular.

The receiver refers to an agreement for exchange of stock between J.C.G.-Medallion and Emerald whereby the control of each corporation was, in effect, given over to the counterpart. That investment agreement was the attempt by J.C.G.-Medallion to extricate the financial difficulties of its subsidiaries, the Medallion and Missouri General insurance companies. The terms of the contract called for J.C.G.-Medallion to purchase from Emerald 270,000 shares of Financial Corporation of North America [FINCO] for $100,000. This purchase was transacted by the remittances and personal notes of the investors, among them two checks for $40,000. These checks were endorsed by Emerald to Medallion and deposited in the joint account of the Medallion and Missouri General insurance companies and their promissory note of December 3, 1974, issued to Emerald. The receiver asserts, however, that , the consideration for the $40,000 note failed after deposit because that money was withdrawn by J.C.G.-Medallion to pay for the FINCO stock and thus to finance the change of ownership of the holding company.

The trial court found consideration for the $40,000 antecedent obligation of the note and we sustain that determination. There is no dispute that the sum which the note recites as consideration was actually deposited in the account of the two insurance company obligors. Nor is there doubt that the note transaction of December 3, 1974, was separate from the investment agreement of November 15, 1974. There is no condition in that agreement that the loan money paid to the insurance companies shall be used for the obligation of their parent company to Emerald for the FINCO shares. Nor does the evidence support the suspicion of the receiver that the holding company used this money of the subsidiaries to overpay Emerald. Rather, from what appears, the transaction between J.C. G.-Medallion and Emerald for the FINCO investment was value for value. The antecedent obligation by the Medallion and Missouri General insurance companies to pay Emerald $40,000 on demand was on full consideration and was sufficient under the express provision of § 400.3-408, RSMo 1969, to support — pro tanto — the renewed obligation of May 25,1975. Additional consideration was furnished by the change of terms which extended the time for payment from demand to a five-year period. Cox v. Sloan, 158 Mo. 411, 57 S.W. 1052, 1055 (1900).

The disputed promissory note of May 25, 1975, for $83,898.71 also recites a new obligation of $43,898.71 by the Medallion and Missouri General insurance companies to Emerald. The receiver contends that the new indebtedness also was incurred for a consideration denoted but not given. The note recites that the $43,898.71 was lent to the insurance companies in cash, but was actually given in the form of a check in that amount payable to Emerald by J.C.G.-Medallion and endorsed by Emerald with recourse to the Medallion and Missouri General insurance companies. At the time the check was drawn the J.C.G.-Medallion treasurer informed the principal officer [Nash] that there were insufficient funds but Nash assured both his treasurer and Emerald that money was forthcoming and Emerald accepted the check on that assurance. The Medallion and Missouri General insurance companies received but did not deposit the check because that J.C.G.-Medallion account was never thereafter sufficient.

The receiver contends that the consideration recited in the note eluded the obligors Medallion and Missouri General; that instead of the cash recited on the face of the note, the carriers received only a check which could not be negotiated for want of sufficient funds and which by its terms became void ninety days after issue and so lapsed.

A negotiable instrument imports that it has issued for a valuable consideration given or received. Sloan v. Paris, 541 S.W.2d 316, 320[3] (Mo.App.1976). The receiver has not disputed the execution of the May 25,1975, promissory note by Medallion and Missouri General but contends that the indebtedness was incurred for a consideration which failed. The burden to prove that issue — an affirmative defense — was on the receiver who stands as the maker of the instrument. Fitzgibbon Discount Corporation v. Hatchett, 427 S.W.2d 786, 789[4, 5] (Mo.App.1968). A consideration within § 400.3-408 may consist of some benefit to one part or some detriment to the other. Custom Head, Inc. v. Kraft, 430 S.W.2d 593, 595[1, 2] (Mo.App.1968).

There can be no doubt that Emerald suffered a detriment by the discharge of the J.C.G.-Medallion note [already in default by $25,000] for the new Medallion and Missouri General promise. It allowed the makers the additional benefit of a five-year installment payment in the place of the more restrictive demand and time provisions of the original December 3,1974, obligation. That the makers of the new note, Medallion and Missouri General, may have not benefitted does not diminish the detriment suffered by Emerald or make the consideration any less valuable. Popovsky v. Griwach, 361 Mo. 1120, 238 S.W.2d 363, 365[1-6] (1951).

The current of the contention the receiver makes, both on the premise of failure of consideration and on principles of- public policy, reiterates that the promissory note of May 25, 1975, [here in dispute] was but one incident of a concatenated transaction to change the control of J.C.G.-Medallion and its subsidiary insurance companies to Emerald Financial Corporation to the previous counterpart owner. That is, J. C. Greene, sole owner and principal officer of J.C.G.-Medallion and of Medallion and Missouri General, wholly-owned subsidiaries, by an exchange of shares with Emerald Financial Corporation became the owner and principal officer of Emerald. Nash, who was brought in by Greene to restore the finances of the insurance companies, became owner and principal officer of J.C.G.Medallion. The receiver contends that the note of May 25, 1975, was a breach of fiduciary duty by Greene to the insurance companies. There can be no doubt, however, that Greene had formally resigned any office or directorship in J.C.G.-Medallion and the two held insurance companies several months before the May 25, 1975, promissory note transaction between these former interests and Emerald, which he then owned and represented.

The receiver contends, however, that his fiduciary duty to J.C.G.-Medallion and the insurance companies extended beyond his actual service as director and officer and required him to do nothing to impair the capital of the insurance companies he earlier directed. This argument assumes again that the two notes which the May 25, 1975, obligation consolidates were integral to the change of control sequence and so, however formally valid the consideration for each prior note, they — and the subsequent May 25, 1975, obligation which embodies them— were also affected by the action of Greene in his former status as director, whatever his actual role.

This theme of fiduciary breach neither appears in the pleadings [except by general allusion], nor was presented to the trial court as such, nor was asserted in the post-trial motion of the receiver to correct the judgment, but is pressed originally on this appeal. If we may assume that the fiduciary issue somehow was implicitly tried, then we are bound to find the evidence on that issue most favorably to the judgment entered — that there was consideration for the May 25, 1975, note and therefore no breach of duty by Greene as director of the insurance companies. There is no evidence that the execution of the original notes by Greene was other than with the full corporate authority of the Medallion and Missouri General insurance companies and of the J.C.G.-Medallion holding company. Those transactions, however ineffectual, were intended to restore the insurance companies to financial health and were without motive to denude either subsidiary of capital — as the receiver suggests.

The insurance carriers received benefit from each promissory note transaction. The full $40,000 cash from the December 3, 1974, promissory note was deposited in their joint account; all the shares of Spectrum Services Corporation purchased with the $42,733.71 December 31, 1974, promissory note was donated to the capital account of the insurance companies and the J.C.G.-Medallion check paid to Emerald [to discharge the December 31, 1974, note and purchase of the Spectrum shares] was endorsed with full recourse to the two insurance carriers. There is no evidence that the assurance by Nash [for J.C.G.-Medallion] to Greene [for Emerald] that the necessary funds to validate the $43,898.71 check were forthcoming from another business source was other than in good faith. There is no explanation why the insurance carriers never deposited the check or why they never sought recourse against the Emerald endorsement. Certainly, contrary to the intimations of the receiver, Greene can be charged with no fiduciary dereliction for the failure of the insurance companies to assert their rights on the check against Emerald. The judgment of the trial court that the note of May 25, 1975, for $83,898.71 was supported by consideration and that the second deed of trust executed by the Medallion Insurance Company to secure that obligation was valid rests on substantial evidence.

The role of the receivership court in the foreclosure of the Medallion Insurance Company property in custodia legis pledged for an obligation then in default remains to be defined. A receiver takes only those rights had by the estate to which he succeeds and so acquires possession or title subject to all liens and equities which affect the property at the time the receiver assumes authority, Parsons v. Third National Co., 230 Mo.App. 1114, 94 S.W.2d 1057, 1060[1] (1936); 75 C.J.S. Receivers § 138; Clark on Receivers (3rd ed.) §§ 269, 354. While a prior lien is not affected by the appointment of a receiver over the property, a lien creditor may not disturb the possession of the court without its permission. That requirement arises more from considerations of decorum than from any authority of a receivership court to deny foreclosure of a valid prior lien. It allows a court an informed supervision over the affairs of the receivership property. Thus, the receivership court may affect the remedy of the lienholder but not divest the right. To forbid altogether the foreclosure of a valid lien extant prior to the assumption of the receivership authority impairs the obligation of contract and defeats, without consent, a vested right of property. Clark on Receivers (3rd ed.) § 976; Philadelphia Trust Co. v. Northumberland County Traction Co., 258 Pa.St. 152, 101 A. 970, 973[1, 2] (1917). When, however, the contract allows a lien-holder a specific remedy on default [in this case, the right to foreclose the security by nonjudicial sale of the real estate], and the validity of the security instrument and underlying promise to pay once established, the remedy as well as the right become obligations of the contract which may not be impaired by the receivership court. Clark on Receivers, supra, § 976, pp. 1749-50. The case of Strubinger v. Mid-Union Indemnity Company, 352 S.W.2d 397 (Mo.App.1961), cited by the receiver as authority of the power of the court to restrain foreclosure despite a contractual power of sale is not in point. That case does not involve a secured creditor such as Emerald but an attempt by an unsecured creditor to garnish assets in the hands of a statutory liquidator.

The judgment of the court to authorize Emerald Financial Corporation to exercise the power of sale under the deed of trust which secures the May 25, 1975, promissory note of the Medallion Insurance Company and the Missouri General Insurance Company is supported by substantial evidence and is affirmed.

All concur.

      . The check from J.C.G.-Medallion to Emerald represented quittance for the December 31, 1974, note indebtedness with interest to Emerald for the Spectrum Services Corporation shares. It was a condition of the Loan Agreement which preceded the consolidation and renegotiation of the two earlier notes that Emerald would upon receipt of the $43,898.71 payment from J.C.G.-Medallion lend that sum to the Medallion and Missouri General insurance companies.

      . The change of control finally wrought by the complicated events we have already, but incompletely, described was from J. C. Greene as owner and principal officer of J.C.G.-Medallion [which wholly held and controlled Medallion and Missouri General] to Nash while, in the process by an exchange of stock, Greene became the owner and principal officer of Emerald Financial Corporation. At one time, briefly, Emerald became the sole shareholder of J.C.G.-Medallion.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jesse Lee HENDRIX, Defendant-Appellant.
    No. KCD 29197.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    As Modified on Court’s Own Motion Oct. 2, 1978.
    Clifford A. Cohen, Public Defender, Kevin Locke, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City,- for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant was tried and convicted by a jury of robbery in the first degree; and, pursuant to the Second Offender Act, he was sentenced to fifteen years.

The point raised by the defendant does not require a detailed examination of the facts. It suffices to say that the evidence would indicate that the defendant robbed at gunpoint two individuals in the bedroom of their home, that one of the victims identified defendant by description and, subsequently, indicated the defendant was a distant relative. This witness also identified the defendant from photographs and at a lineup. The defendant offered an alibi defense by a single witness, a Mrs. Horton. She testified that the defendant had come to her house to borrow money and that she had told him to come back on April 1 when she received her Social Security check. She said that the defendant came to her house during the evening of April 1 and stayed until after 3 a. m., and she did, in fact, loan him $5.00.

Defendant’s single point is the trial court erred in failing to sustain objection to the argument of the prosecutor with respect to the witness Horton. Defendant asserts that the characterization of Horton as a woman “who was used by the defendant” was outside the evidence and the legitimate inferences to be drawn from the evidence.

The comment occurred during an argument by the prosecutor discussing the defendant’s credibility and the validity of his alibi. In connection with that argument, the prosecutor asserted that the alibi was not true and then used the following language with respect to the witness Horton:

“ . . .He knew that he had had it, as far as being found guilty of this crime, and he incorporated and created this story. And he used a woman like Mrs. Horton to help him.
Now, Mrs. Horton, I submit to you— you saw her on the stand — she’s a woman, a very nice woman, who could be used, I think as she was used by this defendant, to come over on the first day of the month when she got her Social Security and borrow money off of her—
MR. BLOEMKER: I’m going to object to that as being improper argument.
THE COURT: The objection is overruled.
MR. HAGGERTY: You saw that she’s the type of person to be used by a person like this defendant. And she would be used in the same fashion before this jury, unwittingly, unknowingly. She was used in an effort on the part of this defendant to get off from the crime of robbery. You’ll have to weigh this testimony.”

Argument of counsel is a matter resting within the sound discretion of the trial court and decisions concerning such argument will not be reversed absent a manifest abuse of that discretion. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). Unquestionably, the State has the right to comment upon the credibility of witnesses. State v. Sallee, 436 S.W.2d 246 (Mo.1969). The State has the right to draw inferences from the evidence which it in good faith believes to be justified. State v. Smith, 527 S.W.2d 731 (Mo.App.1975). It was apparent from the recitation of facts that the inference that the witness Horton could be used by the defendant was permissible and in good faith since she admitted a willingness to testify for the defendant and admitted her close relationship with him and the lending of money to the defendant. The case is strikingly similar to State v. Gay, 523 S.W.2d 138 (Mo.App.1975). An inference of untruthfulness of an alibi witness based upon a relationship to the defendant was appropriate for use in argument as affecting the credibility of the witness as is the case here. The argument as noted directed the jury to weigh that evidence in the light of the argument made.

Judgment and conviction affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    THIRTY-THREE VENTURERS, INC., et al., Plaintiffs-Appellants-Respondents, v. John M. DICKEY et al., Defendants-Respondents, and Henry Salisbury and Cecil Van Tuyl, Defendants-Respondents-Appellants.
    KCD 29245, KCD 29246.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      George T. O’Laughlin, Kansas City, for appellants.
    Donald H. Loudon, Kansas City, for respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

This case is another phase of litigation over the purchase of stock in five Missouri banks. The litigation here involved arose out of the transaction described at length in Dickey, et al. v. Johnson, et al., 532 S.W.2d 487 (Mo.App.1975). A second case involving the transaction is Dickey v. Thirty-Three Venturers, et al., 550 S.W.2d 926 (Mo.App.1977). In the present action the purchasers sought to recover from sellers damages for alleged breach of warranties as to the book' value of the stock purchased and as to the collectibility of the banks’ receivables, sums claimed owed by sellers to buyers under provisions of purchase contracts wherein sellers agreed to indemnify purchasers against costs, expenses and attorneys fees occasioned by breaches of warranties, and refund of interest paid by purchasers on purchase money notes. Trial court denied recovery on claim for damages for breaches of warranty, allowed recovery of $7,748.94 attorneys fees and $30,250 for audit expenses, and denied refund of interest payments. Purchasers have appealed from such judgment. Two sellers appeal from award with respect to audit expense insofar as it makes sellers jointly and severally liable for that expense.

John M. Dickey, William Hines, Edward A. Appleton, Robert E. Dorsey, Cecil Van Tuyl and Henry Salisbury owned the controlling interest in five Missouri banks: The Bank of Otterville, The Harris Banking Company (now Citizens Bank of Newtown), The Hopkins State Bank, The Bank of Craig and The Security State Bank of Brookfield. On October 16,1970, these persons, according to their stock ownership, entered into five separate contracts for the sale of their stock to five single bank holding companies wholly owned by Rudy Johnson as follows: Hopkins State Bank to Thirty-Three Venturers, Inc.; Bank of Craig to Thirty-Four Venturers, Inc.; Harris Banking Company to Thirty-Five Ven-turers, Inc.; Bank of Otterville to Thirty-Six Venturers, Inc., and Security State Bank to Thirty-Seven Venturers, Inc. The contracts of sale were practically identical and the transaction was a “package deal.” As the contracts were amended by supplements, the sales price was fixed at 185.2% of the book value of the sellers’ stock. The sellers warranted that the book value of all stock to be acquired from the sellers in the five banks would not, in the aggregate, be less than $1,100,000.00 as of December 31, 1970. On that basis the purchase price was fixed at $2,000,000 and was paid by $700,000 cash and $1,300,000 in promissory notes of the purchasers, allocated among the sellers in accordance with the proportionate book value of each of the banks and the sellers’ holdings in each bank.

The contracts also provided that if, at time of closing of the transaction, principal or interest on any receivable was in default for at least 30 days or if a regulatory authority had classified any receivable as “doubtful, loss or similar category,” and buyer notified sellers prior to time the receivable was in default for 90 days after closing or within 90 days of receipt of notice from regulatory authority, sellers would have 180 days to cure the default. Upon their failure to do so, the buyers were given the right to reduce the principal balance of any promissory notes issued to the sellers by 185.2% of the unpaid principal balance and interest of such receivables.

The sellers were, at the time of the sales agreements, in difficulty with the State Commissioner of Finance and the Federal Deposit Insurance Corporation, which insured deposits in all of the banks except the Bank of Craig. The F.D.I.C. had issued “Findings of Unsafe and Unsound Banking Practices and Order of Correction” in 1969 and had ordered a hearing on the termination of the insured status of the four banks covered by it. Among the subjects of criticism and grounds for action by the agencies were “insider” loans. At an October 20, 1970 setting of the hearing on the F.D.I.C. terminating order, an agreement was entered into by the four banks insured by F.D.I.C. to the effect that any contract for the sale of the banks should include a provision by which the sellers would agree to collect for the benefit of the banks or purchase at book value certain insider loans and overdrafts within 180 days of closing the sale.

By supplement to the October 16 conracts, the sellers bound themselves to the buyers to perform the F.D.I.C. commitment and agreed that default thereon would give buyers the right to reduce purchase money promissory notes by 185.2% of the unpaid principal and interest.

The sales transaction was closed in November, 1970. The purchasers paid $700,-000 in cash and gave notes for the balance totalling $1,300,000.00.

Within a short time thereafter, examination on behalf of the purchasers of the receivables of the various banks gave rise to question of the accuracy of the representation that the book value of the sellers’ interests in the banks amounted to $1,100,000.00. Under the contracts, any dispute in book value was to be determined by Peat, Mar-wick, Mitchell and Company, and the determination by that firm was to be binding upon the sellers and conclusive for all purposes of the sales agreement. An audit by that firm of the five banks as of December 31, 1970, disclosed an aggregate book value of the banks of approximately $700,000.00.

On February 25,1971, the buyers notified the sellers in accordance with the contracts, that there were in the aggregate approximately $2,660,000 in uncollected receivables as of January 80,1971. Demand was made that these receivables either be paid by the primary obligor or that the sellers pay those obligations within 180 days. Johnson, on behalf of each of the purchasing corporations, notified the sellers of his intention to exercise the right to reduce the balance due on the purchase money notes in case of any default not cured within 180 days.

The sellers did not assist in collecting the receivables but collections by the banks reduced the uncollected receivables to $2,000,-000 in the 180-day period provided by the contracts.

Following the receipt of these notices, Dickey sued the buyers for a declaratory judgment regarding the meaning of various terms of the sales agreements. Eventually, on December 15, 1971, the five Venturer corporations entered into an agreement with the sellers which purported to settle all controversies between the parties. That is the agreement, specific performance of which was denied in Dickey v. Johnson, supra.

The matters presently in dispute originated as counterclaims in the Dickey v. Johnson litigation. They were reserved for separate trial upon the trial of that matter. Following the decision in Dickey v. Johnson, a separate action was filed on behalf of Johnson and the Venturer corporations, seeking essentially the same relief sought in the counterclaims. The two actions were consolidated and the parties realigned with Johnson and the Venturer corporations as plaintiffs and the individual sellers as defendants.

Essentially four matters, presented in numerous counts because of the separate purchase contracts involved, are involved in the litigation here under appeal.

1.Recovery of $740,800 for breach of warranty of the book value of the sellers’ stock, plus $17,500 (amended at trial to $30,-250) as one half of the cost of the audit made to determine book value.

2. Recovery based on warranty of collec-tibility of notes in the amount of 185.2% of the uncollectible notes in the portfolio of each bank as of November 28, 1970.

3. Recovery of attorneys fees and other costs and expenses based upon misrepresentations, breaches and nonfulfillments of sellers under the sales agreements. This claim was based upon a provision for indemnity against such expenditures, found in the sales agreements.

4. Recovery of $31,021.25 paid by the purchasers as interest on the purchase money notes. (Application, as of August 25, 1971, of the “charge-off” provisions of the purchase agreements eliminated the purchasers’ liability on the $1,300,000 notes.)

With respect to the claims based upon warranties of book value and collectibility of the notes, the trial court found essentially that the agreements provided the sole remedy available to plaintiffs for such alleged breaches by allowing the buyers to charge back against the purchase notes a sum equal to 185.2% of the uncollectible receivables. The buyers took advantage of that provision to extinguish their liability on the notes and no further relief is available to them.

Paragraph 4 of each of the sales agreements provided:

“4. Uncollected Receivables:
“It is mutually agreed that the face value of all receivables of the Bank will be included in Book Value, * * * and (i) if, at any time after the Closing, the payment of principal or interest on any receivable due the Bank as of the Closing is in default by at least 30 days, or (ii) if any receivable due the Bank as of the Closing has been or is thereafter classified as doubtful, loss or in a similar category, by any regulatory agency having jurisdiction, Buyer may notify Sellers with respect thereto, if such notice is given in writing and prior to the time that such receivable is in default for a continuous period of 90 days after the Closing, or within 90 days of the date, on or after the Closing, upon which Buyer receives written notice from such agency that such receivable has been so classified. Upon the giving of any such notice, and upon request by Buyer, if Sellers shall be unable, within 180 days from and after any such notification by Buyer, as stated above, to cure such default or remove such classification, then Buyers shall have the right to reduce the principal balance of any promissory notes issued to Sellers under this Agreement, or any of the other agreements referred to in paragraph 26 hereof, in an amount equal to (1) 185.2% of the unpaid principal balance and the interest due on such receivable at the date of such reduction, and (2) interest on the amount computed under (1) above at the rate of 7% per annum, from the Closing to the date of such reduction, unless Sellers shall, within the 180 day period provided above, purchase such receivable from the Bank for an amount in cash equal to the sum of (1) and (2) above. In the event Sellers purchase such receivable, and only in such event, said receivable shall be endorsed without recourse to Sellers.”

By Supplement No. 2, a new paragraph 29 was added to the agreements by which in the event of nonpayment of the F.D.I.C. commitment, the buyer was given the right to “reduce the principal balance of any promissory notes issued to Sellers under this agreement * * *” by 185.2% of the amount of such unpaid obligation.

Supplement No. 2 also added the following new subparagraph to the “Sellers’ Representations and Warranties”:

“(s) That the Book Value of the shares of the Bank acquired hereby plus the Book Value of the shares of the other four Banks acquired pursuant to agreements substantially identical hereto, as of December 31, 1970, will not in the aggregate be less than $1,100,000, such aggregate Book Value to be as defined in paragraph 2 of the within Agreement and to be determined on the accrual basis in accordance with generally accepted accounting principals (sic); provided, however that in computing such Book Value, no deduction shall be made for (1) loans charged off after the Closing Date, (2) losses sustained on sale of bonds after the Closing Date, (3) expenses incurred after the Closing Date (other than interest paid on savings accounts and certificates of deposit) which exceed in the aggregate the expenses (other than the aforedescribed interest) incurred, as set forth on the books and records of the Bank, during the period November 25, 1969 through December 31, 1969, inclusive.
“Nothing contained herein or in the within Agreement to the contrary, in the event of the breach by Sellers of the warranties contained in subparagraphs (r) or (s) hereof, or in the event that either of such warranties is, for any reason, false or untrue, then any and all payments, whether of principal or interest, due from Buyer pursuant to the promissory notes issued in accordance with the within Agreement, or in accordance with any of the four agreements referred to in paragraph 26 of the within Agreement, shall be retained by Buyer rather than paid to Sellers until such breach of warranty, together with interest thereon at the highest legal rate from the date of breach thereof, shall have been fully cured. In the event that there is any dispute, regarding the amount of said Book Value on December 31,1970, said Book Value shall be determined by Peat, Marwick, Mitchell & Co. and the determination by such firm shall be binding upon the Sellers, and conclusive for all purposes, under this Agreement. The fees of said firm for making such determination shall be divided equally between the Sellers and the Buyer.”

Appellants Venturers and Johnson contend that the trial court’s construction of these provisions and the resultant denial of relief to them on their claims for breaches of warranties were erroneous.

The trial court’s conclusion was based primarily upon the meaning of paragraph 4 of the sales agreements which, by its terms, limited the redress of the purchasers upon nonpayment of the defaulted receivables to reduction in the principal amount of the purchase money notes by 185.2% of the amount due on such receivables. Appellants attack that conclusion on the grounds that the trial court overlooked the circumstances attending the transaction, which, they contend, would call for the conclusion that the parties did not, by paragraph 4, intend to limit the purchasers to the remedy there provided.

The circumstances relied upon by appellants are basically the deep troubles in which the banks were with regulatory authorities, particularly the F.D.I.C. The F.D.I.C. was threatening to cancel its insurance in the four banks covered by it because of mishandling of their affairs. As appellants point out, cancellation of F.D.I.C. insurance would almost certainly have made the stock in those banks unsalable and might well have led to a closing of the banks and a resultant loss of the entire investment of the sellers in them. In these circumstances, appellants argue, the sellers were willing to accept warranty obligations which might turn out to be harsh, even to the extent of causing them practically to make a gift of their stock to the purchasers.

The trial court, in giving the reason for its conclusion, took these circumstances into consideration, but drew from them a contrary conclusion. He reasoned that concern for the demands of regulatory authorities was evident primarily in the Second Supplement which took note of the F.D.I.C. commitments but again gave the purchasers, upon default, the right to charge the 185.2% of amount thereof to “reduce the principal balance on any promissory note issued to Sellers * * The repetition in the supplement of the “charge-off” language of the original agreement was found significant as evidencing an intention to limit the buyers to that remedy.

As respondents point out, cases in this state involving sales of goods have held that parties to a contract of sale may by their contract limit a purchaser’s remedy for breach of warranty to that provided by the contract, Mayfield v. George O. Richardson Machinery Co., 208 Mo.App. 206, 231 S.W. 288, 290-291[2] (1921); Minneapolis-Moline Power Implement Co. v. Wright, 233 Mo.App. 409, 122 S.W.2d 397, 399[1] (1938). Those cases involved an attempt by the purchaser to employ a remedy other than that specified by the contract, but not in addition to the contractual remedy. In this case, appellants have already taken advantage of the contractual remedy and are now asserting the right to additional relief.

The trial court noted the practical effect of granting appellants the relief which they here seek. The amount of defaulted receivables had been reduced from $2,666,842 at the time of the notice to the sellers pursuant to the contract to approximately $2,000,000 on the charge-back date of August 25, 1971. From that date until the time of trial, there had been additional collections of $1,600,000.00. In addition, the Brookfield bank had been sold in December, 1971, for $655,000; the Harris (Newtown) bank in 1973 for $149,000, and the Otterville bank in 1974 for $350,000.00. Appellants assert a right to recover 185.2% times the $2,200,000 charge-back items as of August 25,1971, plus 185.2% times the deficiency of some $400,000 in warranted book value. Appellants acknowledge overlapping of the claim based upon the charge-back and deficiency in book value and state that they would be willing to accept as the least to which they are entitled the return of their $700,000 cash payment. This latter alternative would at least leave their investment at nil, rather than having respondents pay them for taking over the banks, the result which would follow allowance of appellants’ claim in full.

Insofar as the claim based upon warranty of book value is concerned, again the trial court noted that the parties were not seriously concerned about such a warranty and that it was inserted primarily to assuage the lending institutions financing the purchase. When the warranty terms were written, they included provision for remedy in the event of breach of the warranty. The obligation of the purchasers under the purchase agreement was to be suspended until the breach had been cured. The trial court concluded that this was the sole remedy and that, in view of the receivables collected, the breach had been cured.

In their reply brief, appellants argue eloquently that consideration of what had happened to the defaulted receivables since August 25, 1971 ignores the fact that any improvement in that regard was for the benefit of the banks and none was for the account of the purchasers. That is, of course, true, but equally obvious is the fact that any improvement in the status of the banks’ receivables was reflected in the value of the stock which appellants purchased, and undoubtedly contributed to the profitable sale of three of the banks.

Appellants cite only general authority to the effect that in construing a contract all relevant surrounding circumstances tending to throw light upon the parties’ intentions must be considered. The rule relied upon is not to be questioned. However, as demonstrated, the trial court did consider the circumstances relied upon by appellants. Under the standard of review for this court-tried case, there having been no demonstration that the trial court’s judgment was without substantial eviden-tiary support, or that it erroneously declared or applied the law (Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)), the trial court’s judgment on this issue must be sustained.

The appellants’ claim for reimbursement for attorneys fees arises out of the following provision found in each of the sales contracts:

“23. Indemnity:
“Sellers do hereby agree, pro rata in proportion to the number of shares sold by them hereunder, to indemnify Buyer from any damage, loss, cost or expense incurred by it resulting from any misrepresentation, breach of warranty or nonfulfillment of Sellers hereunder. The indemnified party shall be reimbursed on demand for any payment made or loss suffered by it, with respect to which this indemnity relates, and for any attorney’s fees, costs or expenses incurred in connection therewith, together with interest thereon at the maximum legal rate from the date of demand; provided that Sellers shall not be required to pay any * * * expenses relating to any litigation, unless they shall have been given timely written notice of the existence of such litigation and an opportunity to participate in the defense thereof.”

Appellants presented evidence that they had incurred attorneys fees in excess of $277,500 in various matters arising out of the sales transaction. They included: efforts to collect the delinquent receivables in the hands of the banks; the handling of an interpleader action in the Federal Court in which Johnson and the Venturer companies were parties and which involved the assertion of a claim to collateral held by the Columbia Union Bank which financed the purchases here involved; the defense of the specific performance action by the sellers which eventually found its way to this court (Dickey v. Johnson, supra); litigation for the purpose of collecting Dickey’s obligations (Dickey v. Thirty-Three Venturers, supra); and the present litigation. Attorneys fees were also incurred in dealing with regulatory authorities following the purchase of the banks, particularly in dealing with the demand of the F.D.I.C. for the infusion of additional capital into the banks.

Appellants contend that these expenditures were necessitated by the breaches of warranty and misrepresentations of the sellers and that they are entitled to be reimbursed therefor under the above contract provision. The trial court allowed only one item of legal fees arising out of the handling of an action against the Harris bank by the First Bank of Grantsburg, Wisconsin, which had not been revealed to the purchasers prior to the closing of the transaction. The court found that this was a matter expressly warranted against in paragraph 8(k) of the sales contracts and that the provision for indemnification was intended to apply in such case but did not apply to the other items.

Appellants contend that the disallowed expenditures arose out of (1) the failure by certain sellers to honor personal note obligation, (2) the failure of other sellers to honor the warranty obligation of the F.D. I.C. commitment and (3) the failure of the sellers to honor the warranty agreement in paragraph 4 of the sales contracts. Appellants contend that the expenses incurred as a result of such defaults on the part of the sellers falls within the clear and unambiguous language of the indemnification provision which calls for the sellers “ * * * to indemnify Buyer [appellants] from any damage, loss, cost or expense incurred by it resulting from any misrepresentation, breach of warranty or non-fulfillment of Sellers hereunder.”

Viewing the language of paragraph 23 in its entirety, the trial court’s construction of the provision is not to be held erroneous. The broad general language relied upon by appellants must be viewed in the light of the entire paragraph. Particularly, attention and meaning must be given the last clause of the paragraph which provides:

“ * * * Sellers shall not be required to pay any * * * expenses relating to any litigation, unless they shall have been given timely written notice of the existence of such litigation and an opportunity to participate in the defense thereof.”

This provision contemplated that the litigation for which indemnity would be provided was litigation against the purchasers, not litigation by them and certainly not litigation against the sellers. The contracts gave the buyers remedies against the sellers for breaches of the warranties on the receivables and the book value. There is no basis for attributing to the parties an intention in the indemnity clause to provide additional remedies for such breaches. The above-cited language clearly mitigates against such an intention insofar as expenses of litigation are concerned. The contracts also provided the remedy for breach of the warranty as to book value. The indemnity clause does not require the sellers to pay the legal fees arising out of regulatory authorities’ demands which appellants relate to the deficiency in book value.

Appellants here rely upon general principles to overturn the trial court’s ruling. Under the scope of review prescribed by Murphy v. Carron, supra, the trial court’s ruling has not been demonstrated to have been erroneous.

Appellants next contend that the trial court erred in failing to adjudge that they are entitled to refund of interest payments totalling $31,021.25 made by them on the purchase price notes prior to the time that the liability represented by the notes was extinguished under the “charge-back” provisions of the sales contracts. Appellants rely upon the following provision found in the notes:

“This promissory note is issued pursuant to the terms and provisions of the above described Agreement for Sale of Stock, and the amount payable hereunder is subject to adjustment by virtue of the terms and provisions of said Agreement, to which reference is hereby made, and which are, by such reference, made as fully a part of this promissory note as if the same were set forth at length herein.”

Appellants contend that when their obligation to pay the notes terminated by virtue of the charge-backs, the above quoted provision contemplated an “adjustment” which would entail return of the interest payment made under the conditional notes that were subsequently voided. Appellants overlook the language that the “adjustment” was to be made “by virtue of the terms and provisions of said agreement * * *.” The “terms and provisions of said agreement” which relate to adjustment of the amounts payable under the notes are found in paragraph 4, quoted above. The adjustment provided for is reduction of “the principal balance of any promissory notes issued to Sellers * * That is the “adjustment” referred to in the notes and relates only to reduction in the “princi-pa] balance ” and makes no reference to any adjustment of interest which had accrued and been paid prior to the adjustment of the principal balance. That being the situation, general definition of the term “adjustment” is irrelevant because the parties have provided what is to be done in that regard. The trial court’s denial of relief was correct.

Sellers Salisbury and Van Tuyl have appealed from the portion of the trial court’s judgment which renders them jointly and severally liable with other defendants for $30,250 plus interest from July 21, 1971, for the defendants’ share of the audit fees incurred upon the audit of the five banks. The audit was required when a dispute arose as to the book value of the stock being sold in all banks and was made pursuant to the terms of paragraph 6 of Supplement No. 2 to each of the sales contracts, which called for an audit to be made by Peat, Marwick, Mitchell and Company in the event of such a dispute. Paragraph 6 further provided: “The fees of said firm for making such determination shall be divided equally between the Sellers and the Buyer.”

Salisbury was one of the sellers of stock in the Harris Banking Company (Citizens Bank of Newtown). Thirty-Five Ventur-ers, Inc., was the buyer. Van Tuyl was one of the sellers of stock in the Citizens Bank of Brookfield and Thirty-Seven Venturers, Inc., was the buyer. Peat, Marwick, Mitchell and Company rendered separate bills for the audit of each of the five banks. The charge for the Brookfield bank was $18,150 and for the Harris bank $8,450.00. Van Tuyl contends that his liability for audit expense should be limited to one half of the cost of the Brookfield audit. Salisbury would limit his liability to one half of the cost of the Harris audit.

Giving the judgment of the trial court the benefit of the presumption of correctness (Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512, 515[1, 2] (Mo.App.1976)) and applying the Murphy v. Carron, supra, rule of scope of review, the trial court’s conclusion is not to be overturned. The provision for the audit was found in the supplement to each of the contracts. The warranty as to book value was as to an aggregate value for the five banks. There was no warranty as to the value of each bank, separately. The provision for an audit did not contemplate the audit of a single bank, but, as occurred, an audit of all five. The buyers agreed, without limiting their liability to the cost of the audit of the bank in which they held stock, to pay one half of the cost of the audit. The trial court’s judgment is not erroneous.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    In re MARRIAGE OF Laverne A. ROBINSON and Eugene J. Robinson. Laverne A. Robinson, Petitioner-Respondent, and Eugene J. Robinson, Respondent-Appellant.
    No. KCD 29271.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Shaw, Howlett & Schwartz, Clayton, for respondent-appellant.
    Warren S. Stafford, Taylor, Stafford & Gannaway, Springfield, for petitioner-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Laverne Robinson filed a petition seeking a dissolution of her marriage with Eugene Robinson. The court ordered the marriage dissolved and divided the marital property, except for an insurance policy, according to an agreement as testified to by Laverne. Eugene appeals and contends the court failed to follow the agreement and failed to distribute the insurance policy to him. Affirmed as modified.

After the petition for dissolution was filed, the court made a pre-trial order by which each party was required to file with the court a schedule itemizing all marital property belonging to the parties together with the current fair market value of such property. Laverne filed such schedule but Eugene did not. Thereafter both parties with their attorneys appeared in court. Laverne testified in detail as to the agreement the parties had reached for the division of the marital property listed on her schedule. This agreement covered each item of property except for a National Service Life Insurance Policy in the face amount of $5,000, with Eugene Robinson as the owner and insured and Laverne as the beneficiary. This item contained the notation “Term Policy” and gave no estimated value.

Eugene was sworn and examined by his counsel and by the court. He stated he had heard the agreement as testified to by Laverne and in response to a question from the court, stated that if the court granted a dissolution of the marriage it was his request that the agreement as testified to by Laverne be approved.

On this appeal Eugene contends the judgment as entered by the court did not follow the agreement testified to. The supposed discrepancy relates to a contract which the agreement provided Eugene and Laverne would enter into as the owners of 90% of the stock in a corporation with their son Daniel for him to act as general manager of the corporation. A comparison between the agreement as testified to and as contained in the judgment shows the two are the same.

Eugene next contends the agreement did not provide the details to be embodied in a buy and sell agreement which he and Laverne agreed to enter into concerning their stock in the corporation. Their agreement as testified to by Laverne did not embody the terms of such agreement, yet Eugene agreed that the testimony of Laverne embodied their whole agreement.

By this contention Eugene is seeking to rewrite the agreement in this court and he assumes a different position here than he took in the trial court. This, of course, he cannot do. Corning Truck & Radiator Serv. v. Inc., 542 S.W.2d 520, 527[12, 13] (Mo.App.1976).

Eugene finally contends the court erred in not setting off to him the National Service Life Insurance Policy. The judgment as entered by the court made no disposition of this policy. Laverne’s exhibit in which she listed this policy gave no cash value for it. This would coincide with the general rule that “a true term contract would have no loan or cash value, or, in fact, any value except in the event of the death of the insured prior to the expiration of the contract.” Appleman, Insurance Law and Practice, § 3 (1941).

Although the life insurance contract does not have any value, it should be made clear that such contract does belong to Eugene. The judgment is modified by including the following provision:

“The National Service Life Insurance Policy in the face amount of $5,000, with Eugene J. Robinson as the owner and insured, and Laverne A. Robinson as beneficiary, is hereby set apart and awarded to Eugene J. Robinson as his sole and separate property.”

The judgment as modified is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Charles E. LARRABEE, Appellant.
    No. KCD 29361.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Jeffery L. Alena, Gepford & Sears, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Charles Larrabee was convicted of burglary in the second degree, § 560.045, RSMo 1969, and stealing, § 560.156, RSMo 1969. He was sentenced by the court under the Second Offender Act to consecutive sentences of five years and two years respectively.

On this appeal Larrabee raises the single point that he was denied effective assistance of counsel. Affirmed.

Larrabee was identified by an eye witness as one of four men who entered an unoccupied house, removed a refrigerator, loaded it on a truck and drove away.

In a motion for new trial filed by different counsel than the one representing him at trial, Larrabee contended he was denied effective assistance of counsel. This claim arose from a colloquy which occurred on the morning of the second day of trial. At that time defense counsel requested leave to reopen for the purpose of recalling two police officers. Counsel stated he had neglected to cross-examine the officers with respect to a discrepancy in the description given to them by the eye witness and the actual appearance of Larrabee. Counsel stated the State had given him a copy of the police report but he had neglected to notice at the time the officers were on the stand the fact the witness had described Larrabee as weighing well over 200 pounds when in fact he only weighed 150 pounds. The court denied the request to reopen.

In presenting evidence at the hearing on the motion for new trial, Larrabee’s counsel stated he did not need to call the trial counsel to develop his ineffective assistance of counsel contention because it was contained in the trial record. As noted, the trial record contains only a colloquy. No formal evidence was presented to the court nor was any testimony under oath received concerning the ineffective assistance of counsel contention.

It is well established that a claim of ineffective assistance of counsel can only be considered on direct appeal when the record contains sufficient facts to permit a meaningful review. State v. Burns, 537 S.W.2d 860, 863[4, 5] (Mo.App.1976). Here the record does not contain sufficient facts to permit a review of this contention. The record here is very similar to that in Burns which likewise held the record insufficient to permit a review on direct appeal.

The judgment is affirmed.

All concur.


text:
    SUMMIT LUMBER COMPANY, INC., Plaintiff-Respondent, v. John W. HIGGINBOTHAM, John D. Mahan, Jr., and Joan L. Mahan, Defendants-Appellants.
    No. KCD 29364.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Milton B. Edmonson, Greenwood, for defendants-appellants.
    Richard J. Koury, II, Independence, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Summit Lumber Company sought to enforce a mechanic’s lien on certain real estate originally owned by John W. Higgin-botham and later sold to John Mahan, Jr. and Joan Mahan. The Mahans filed a cross claim against Higginbotham in which they sought judgment for any amount which might be found due Summit and enforced by a mechanic’s lien on the property they had purchased from Higginbotham. The court found in favor of Summit and imposed a mechanic’s lien on the real estate formerly owned by Higginbotham and sold to Mahan. No disposition was made on the cross claim of Mahan against Higginbot-ham. Mahans appeal.

“To be final and appealable a judgment must dispose of all parties and all issues in the case and must leave nothing for further determination. Rule 74.01, V.A.M.R.; Elliott v. Harris, 423 S.W.2d 831 (Mo. banc 1968).” Federal Deposit Insurance Corporation v. Crismon, 516 S.W.2d 57, 58[2] (Mo.App.1974).

It is apparent the judgment here does not dispose of all the issues because the issue of the Mahan claim against Higginbotham was not disposed of even though brought to the court’s attention in a motion for new trial. For that reason this appeal must be dismissed.

Should an appeal be taken after a final judgment is entered, the attention of the parties is directed to Rule 84.04 with reference to the contents of briefs and particularly to Rule 84.04(d). The appeal is dismissed.

All concur.