author: KELLY, Judge.

text:
    BENEFICIAL FINANCE COMPANY OF ST. CHARLES, INC., Plaintiff-Appellant, v. Lonnie KITSON and John Trower, Defendants-Respondents.
    No. 35806.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 25, 1975.

      Bruere & Rollings, Henry Gerhardt, St. Charles, for plaintiff-appellant.
    Jess L. Mueller, Troy, for defendants-respondents.
   KELLY, Judge.

Beneficial Finance Company of St. Charles, Inc., plaintiff-appellant (hereinafter the plaintiff) appeals from a judgment of the Circuit Court of Lincoln County in a suit on a promissory note wherein the trial court at the close of plaintiff’s evidence sustained the motion of defendant-respondent, John Trower (hereinafter the defendant) for a directed verdict on the grounds that the note sued on was usurious and therefore unenforceable and entered judgment for the defendant. We reverse and remand.

The litigation commenced in the Magistrate Court of Lincoln County where the plaintiff brought suit on a promissory note executed by the defendant as an accommodation co-signer for one Lonnie Kitson whereby the plaintiff loaned to the said Lonnie Kitson the sum of $1,566.67 for the purchase of an automobile. The note, on one of plaintiff’s forms, was executed on May 1, 1968 for a principal sum in the amount of $1,566.57 and interest in the amount of $449.43, or a total of $2,016.00, payable in 60 equal installments of $56.00 per month, commencing on June 1, 1968 with the final payment being due on May 1, 1971. The note was secured by two co-signers, the defendant and one Edna Carol Trower, a security agreement on the automobile and some household contents. Life insurance and insurance on the car and household contents securing the loan was also purchased. Plaintiff sought judgment against the defendants, Kitson and John Trower, in the sum of $392.51 plus interest and costs. Service was never obtained on Kitson and he never entered his appearance. In the Magistrate Court defendant filed no Answer to plaintiff’s petition but did file a counterclaim seeking to recover $89.77 allegedly paid on the note in excess of the amount stated thereon. Judgment was entered in behalf of the plaintiff in the Magistrate Court following trial to the magistrate without a jury and the cause was appealed to the Circuit Court by defendant Trower.

After the transcript of the proceedings in the magistrate court was filed in the circuit court, defendant filed his Answer to the plaintiff’s petition admitting that he had executed the promissory note sued on and that the note provided that default in the payment of any installment when due rendered the entire balance due and payable; he denied all of the other allegations in plaintiff’s petition. He also was permitted to reduce the prayer of his counterclaim to $56.61, and subsequent to the filing of his Answer to amend same by adding a new paragraph alleging by way of affirmative defense that plaintiff charged usurious interest and failed to comply with the “Federal Truth and (sic) Lending Act.”

In the Circuit Court, on trial de novo, the cause was tried to the court without a jury. Plaintiff presented a single witness, Melvin William Bennett, who was, on the day of trial, July 24, 1973, its collection manager, but who had not been in plaintiff’s employ at the time the promissory note sued on was executed, and therefore had no knowledge of the circumstances of the loan transaction other than what he had gleaned from the records of the company. He identified the promissory note offered by plaintiff as an original copy of the note signed by the defendant and the other parties to the transaction and stated that it was kept in the file of the company in the regular course of the company’s business. He also identified a ledger card from plaintiff’s files as the record of payments made on the note and kept and maintained in the regular course of the plaintiff’s lending business and further testified that it correctly reflected the condition of the loan. According to the ledger card the “current unpaid balance” due and owing on the note was $392.51, and despite the fact that he had made numerous demands upon both Mr. Kitson and the defendant to pay the balance due and owing on the note, the account remained unpaid. According to Mr. Bennett the plaintiff exercised its option under the terms of the note and accelerated the note on July 17, 1970, credited it with the refund due defendant because of plaintiff’s exercise of the option to accelerate, and the amount of interest computed from the date of acceleration — July 17,1970 —to the date of trial — July 24, 1973— amounted to $415.80.

Cross-examination of Mr. Bennett revealed that while he had a grasp of repayment procedures in general, he exhibited a lack of knowledge of the inner-workings of the Missouri Small Loan Act. He also did not display knowledge of the effect of partial repayment on the interest rate allowed by the Small Loan Act and the concept of acceleration. He did testify, however, under cross-examination, that the first two payments on the note were paid prior to their due date and that on July 25, 1968, an insurance company payment of insurance proceeds to the plaintiff in the amount of $995.00 was credited to the loan account and at that time the ledger card showed that an entry was made thereon reducing the unpaid balance as of that date of $909.00. He was unable to testify whether this payment resulted in any reduction in the rate of interest charged on the loan. The rate of interest charged for the loan at the time of its execution was 2.218% per month on the first $500.00 and 8% per an-num on the excess. The total amount of the interest charged on the loan was $449.43. This figure was arrived at by the use of a chart, first arriving at the amount of the money to be loaned, the number of months over which the loan was to be repaid, and the rates of interest to be charged on the unpaid balances. Despite the fact this chart was referred to on a number of occasions in the transcript and was on counsel table, it was never introduced into evidence by either party to this litigation and we are not the beneficiary of its contents. On the date plaintiff exercised its option to accelerate the loan there was still $607.00 due and owing and a refund of $37.12 was credited to the account as unearned interest between May 1, 1968 — the date the loan was made — and July 17, 1970 — the date the plaintiff chose to exercise its option to accelerate the loan. With acceleration the note became an interest bearing note at a rate of 2.218% per month on $500.00 of the balance and 8% per annum on the $107.00 balance in excess thereof. The refund figure of $37.12 was figured “on the rule of seventy-eight.” By time of trial the plaintiff had received a total of $1603.49 on the note.

Mr. Bennett was further subjected to redirect and re-cross examination by the attorneys for the respective parties and the trial court then undertook the interrogation of the witness with respect to what the refund would have been had the note been accelerated on July 19, 1968, when the insurance payment was originally credited to the account as evidenced by some entries on the ledger card which had been lined out. Mr. Bennett testified in response to the trial court’s questions that this had been done and the refund as of that date would have amounted to $239.55, but that that entry on the ledger card had been stricken because it was an error occasioned by whomever made the entry assuming that the $995.00 insurance payment was a payment in full whereas it was in fact only a partial payment. The witness was then asked by the trial court to compute the interest which would be due if he were to assume that the note was accelerated as of the date plaintiff received the insurance payment. The witness was further directed to credit the $293.55 unearned interest refund previously credited to the account on July 19, 1968, and to give credit for any payments made on the account after the date of the payment of the insurance proceeds. Following the trial court’s directions, Mr. Bennett testified that his computations showed that the principal due on the note was $369.62 and the interest, from April 10, 1972, the date of the last payment on the account, to July 24, 1973, the trial date, was $134.55, a total of $504.17.

At this point the plaintiff rested its case and the defendant orally moved “for a directed verdict and for judgment in accordance with its prayer in the counter-claim for the reason that plaintiff has failed to make a submissible case and I believe that usury is the defense of this particular case and was adequately brought out by the testimony of the plaintiff in this particular instance.” When plaintiff’s counsel declined the trial court’s invitation to reply by stating that he felt he had made a submissi-ble case, the trial court made the following ruling:

“Gentlemen, the Court has done some computing on its own in this matter and the Court is taking into consideration Section 408.100 with specific reference there to sub paragraph 2 to the effect that the interest rate shall not exceed 2.218 per month on the unpaid principal balances, together with 408.130, 408.150 and 408.170, particularly Paragraph 2 with reference to no refund shall be required for any partial prepayment, and the Court is also, of course, not limiting itself to those sections but to all sections of what is commonly referred to as the Small Loans Act and the particular note in question in this case which provides that payment in advance may be made hereon in any amount at any time. After taking all those matters into consideration and the exhibits admitted in evidence and the charges made by the plaintiff in this ease does find that those amounts charged were in excess of the amount set forth in the statute as the maximum amount of interest allowable and therefore find the note unenforceable on the plaintiff’s claim on the note. I am — there is no evidence before the Court at this time on the counter-claim and therefore your motion is denied as far as judgment on the counter-claim is concerned.”

Although asked if there was any further evidence at that time the defendant’s counsel replied no and the trial court then entered judgment in favor of the plaintiff and against the defendant on his counter-claim. No appeal was taken by the defendant from this judgment on the counter-claim.

Plaintiff filed a Motion to Set Aside Judgment or in the Alternative for a New Trial and after ninety days passed without any ruling on this motion, on November 6, 1971, plaintiff filed its notice of appeal from the judgment aforesaid.

Plaintiff, on appeal, presents two points for review. In fact, however, they consist of one point with sub-points and essentially contend that the trial court erred in sustaining Defendant’s Motion for a Directed Verdict or Judgment on the issue of usurious interest for the reason there was no substantial evidence to support a finding to this effect. As sub-points, plaintiff contends that the trial court erred in finding that the amounts of interest charged were in excess of that allowed by statute; that the interest was agreed upon in the note or contract; and that no refund was required for the partial prepayment.

Respondent argues that the interest charged was in excess of that permitted under the Small Loan Act because when payments in excess of $500.00 on the principal of the note had been once made, plaintiff was no longer permitted to charge the 2.218% per month interest rate authorized by § 408.100 RSMo 1959. In the alternative, should this argument be without merit, defendant argues, then plaintiff was not entitled to charge interest at any rate in excess of 6% per annum on the unpaid principal balance in excess of $500.00, § 408.020, because no other rate of interest was ever agreed upon by the parties to the note, and since it admittedly charged interest at the rate of 8% per annum on the unpaid principal balance in excess of $500.00, the note was usurious. The third argument made by defendant in support of the trial court judgment is that by reason of the first two payments made on the loan in May and July, each in an amount of $56.00, added to the $995.00 insurance proceeds payment of July 25, 1968, constituted a reduction of unpaid principal in the total sum of $1,107.00 in a period of less than three months so as of that date there remained only $459.00 unpaid principal balance due; that plaintiff’s attempt to charge the sum of $449.43 interest and acceleration payments on the use of $1,107.00 for three months and on the balance of $459.00 for the remainder of the loan period constituted usury.

On an appeal from a judgment in a court-tried case, an appellate court reviews the case upon the law and the evidence and reaches its own findings of fact from a consideration of all the evidence in the case, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. The judgment of the trial court is not to be set aside unless clearly erroneous. Rule 73.01(d). Neither party to this appeal requested that the trial court file a brief opinion containing a statement of the grounds for the trial court’s decision, Rule 73.01(b), nor are we privy to the computations employed by the trial court in arriving at its conclusion that plaintiff was barred from recovery because the note sued on was usurious. Both plaintiff and defendant in their briefs explain in detail their theories of the ease, in some instances at least, reaching de hors the record in the trial court, and when they do we may not consider those matters in disposing of this appeal except for the purpose of demonstrating the paucity of the record upon which we must decide this appeal.

When reference is made to § 408.175, it is to RSMo 1959 as added Laws 1959, H.B.No. 321.

Usury has been defined as the exacting, taking or receiving of a greater rate of interest than is allowed by law for the use or loan of money. For a transaction of this kind to be usurious there must be a loan at more than the legal rate of interest, or the exaction of a greater rate of interest than the legal rate for the forbearance of a debt or sum of money due. The requisite elements of usury are: (1) an unlawful intent, (2) money or its equivalent, (3) a loan or forbearance, (4) the sum loaned must be absolutely, not contingently, payable, and (5) there must be an exaction for the use of the loan or something in excess of what is allowed by law. Usury is not to be presumed; it must be proved and the burden is on the one asserting it. Lucas v. Beco Homes, Inc., 494 S.W.2d 417, 422[2] (Mo.App.1973).

In a suit on a promissory note plaintiff makes a prima facie case when the note admittedly signed by the makers is introduced into evidence and there is evidence to show that the note is unpaid or there is a balance due and owing. § 400.3-307(2) RSMo 1965, provides that when signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense. The Uniform Commercial Code Comment, 20A V.A.M.S. p. 602 with respect to this section of the Code states: “Once signatures are proved or admitted, a holder makes out his case by mere production of the instrument, and is entitled to recover in the absence of any further evidence. The defendant has the burden of establishing any and all defenses, not only in the first instance but by a preponderance of the total evidence. The provision applies only to a holder, as defined in this Act (Section 1-201).” On appeal, in testing the sufficiency of the evidence to meet the plaintiff’s burden of proof, the Court of Appeals must view the evidence in a light most favorable to plaintiff and indulge in every inference which men of average intelligence and fairness might draw from the proven facts. James v. Turilli, 473 S.W.2d 757, 762[10] (Mo.App.1971). Examined in the light of the foregoing principles we conclude that the court’s action in sustaining defendant’s motion for a directed verdict at the close of the plaintiff’s evidence and entering judgment thereon was prejudicial error and requires that this cause be reversed and remanded.

We consider plaintiff’s contentions in inverse order; first, that no refund was required for the partial prepayment of the proceeds of the insurance in July, 1968. The note itself authorizes payment in advance in any amount at any time and specifies that if the note is “prepaid in full ” by cash, renewal or refinancing before the final due date, or the extended final due date, if any, the borrower shall receive a refund of a portion of the amount of interest applicable to the full installment periods following the date of such prepayment in full, as prescribed by § 408.170. Plaintiff relies on that part of § 408.170 which specifically provides that in the case of a note or loan contract which provides for an amount of interest added to the principal of the loan payable in installments no refund shall be required for any partial prepayment. “Refund,” as that term is used in § 408.170 means “a credit or deduction from the amount of interest originally contracted for.” By its terms the statute supports plaintiff’s contention and where the prepayment was partial only a note which was not usurious before prepayment is not thereby rendered usurious if no refund is given therefor. Reich v. Pine Lawn Bank & Trust Co., 356 S.W.2d 545, 549[4] (Mo.App. 1962). Anno. 75 A.L.R.2d 1265 (1961). We hold, therefore, that if this was the basis for the trial court’s finding that the plaintiff was guilty of usury, there is no substantial evidence to support its findings on that ground and its action in sustaining defendant’s motion for a directed verdict at the close of the plaintiff’s evidence was clearly erroneous.

Plaintiff next contends defendant’s argument that by charging defendant interest at the rate of 8% on the unpaid balance of principal in excess of the first $500.00 of the loan was usurious because not agreed to in writing as required by § 408.030 and plaintiff was thereby restricted to a charge of interest at a rate of 6% per annum by § 408.020, is without merit. Plaintiff argues that it is plain on the face of the note that the rate of interest had been agreed upon by the parties because the total amount of the interest is calculated and stated thereon and is not in excess of that which it may lawfully charge. Defendant, on the other hand, takes the position that since no rate of interest is specified in the note, no rate was ever agreed upon and when no rate of interest is agreed upon plaintiff is limited to that rate of interest permitted by § 408.020.

In disposing of this problem, both parties concede that this loan was made under the provisions of the Small Loan Act. Under the Act a lender is authorized to charge a borrower interest which shall not exceed 2.218% per month on the unpaid principal balance on a loan of $500.00 or less by § 408.100. § 408.200 provides that no lender shall, however, permit any borrower to be indebted to it on two or more contracts at any time for the purpose of or with the result of contracting for or receiving the interest permitted by § 408.100 on more than $500.00 of principal (excluding interest). It may, nevertheless, lend at the same or different times to the same borrower $500.00 or less under and at the rates permitted by § 408.100 and additional amounts at not more than 8% per annum even though such additional amounts bring the aggregate amount outstanding to an amount in excess of $500.00 and whether such loan or loans are evidenced by one or more than one note or loan contract. When the aggregate principal amount outstanding exceeds $500.00 and is evidenced by one note or loan contract, it must be treated as one loan and interest may be computed at the rates permitted by § 408.100 on that part of the unpaid principal balance of the total indebtedness not exceeding $500.00 and at no more than 8% per annum on any remainder of such unpaid principal balance. Loans made in accordance with this Section of the statutes are subject to the provisions of §§ 408.120, 408.130, 408.160 and 408.180. § 408.120 specifies how the interest on a loan shall be computed and paid where the interest is added on to the principal and for repayment of the loan in equal monthly installments. § 408.130 requires that the borrower receive a statement of the contract or a copy of the loan contract at the time the loan is made showing, “in clear and distinct terms” a number of items. Two of these items are:

“(5) The principal amount of the loan excluding interest;
(6) The rate or amount of interest as the contract may provide.” (Emphasis supplied).

The two other Sections of the statutes cited, §§ 408.160 and 408.180, are not germane to the issues or our holding in this case. No issue is framed about the question whether this defendant was furnished with the copy of the loan contract required by the statute containing the information required by § 408.130; the thrust of his complaint is that the rate of interest at 8% did not appear, as such, on the loan contract or note. Although the note might have stated the amount of interest charged on the principal amount loaned in percentage figures, as we read the statute we find no requirement that it do so. The legislature apparently intended that the loan contract need not when it enacted § 408.130 and provided instead for delivery to the makers of a copy of the loan contract showing the amount of the interest charged. Defendant executed the loan contract or note with the information contained thereon that the principal amount of the loan was $1,556.57 and the amount of interest was $449.43. Plaintiff complied with § 408.130 in setting out in the loan contract the information required and defendant cannot now be heard to complain. The rates of interest charged on the loan at the time it was entered into were not in excess of those allowed by §§ 408.100 and 408.200 where one note evidences the aggregate principal amount of the loan outstanding at the time it was executed. We hold therefore that if the trial court, in arriving at its finding that this note was unenforceable because usurious on these grounds, did so on the basis that the interest rate was not expressed in percentages on the face of the note, it was in error and the judgment entered was clearly erroneous and must be reversed and remanded.

Plaintiff’s third and final contention that there was no substantial evidence to support the trial court’s findings that the note was unenforceable because it was usurious hinges on whether there is substantial evidence in the record proving that the interest charged was in excess of the amount permitted by the Small Loan Act. At trial plaintiff made no effort to demonstrate the amortization schedule for this loan and for the first time sets forth what it contends is an amortization schedule in its brief. Defendant too, although he did not present any evidence in this respect at trial, has favored us in his brief with what he denominates a “total payment schedule” based upon an interest rate of 6% per an-num on the unpaid principal balances in excess of the initial $500.00 of the loan, and takes advantage of the refund of interest which would be appropriate had the loan been repaid in full by cash, renewal or refinancing in July, 1968. Amortization of a loan of this type is an involved mathematical computation based upon schedules and tables prepared by mathematical calculations which were not presented to the trial court by either party. Defendant had the burden on the defense of usury and utterly failed to carry it. From the ledger card of plaintiff it is apparent that the note was in default when the plaintiff exercised its option to accelerate the maturity date of the note in accordance with the terms of the note and credited the account with a refund computed under the Rule of the 78ths method provided for by § 408.170. There is no evidence in this record to the contrary. Plaintiff’s evidence is that the note was thereafter converted into an interest bearing note at the rate of 2.218% per month on the unpaid principal balance of $500.00 and 8% per annum on the remaining unpaid balance in excess of $500.00. The note itself provides that in case of default in the payment of a single installment and if the note is accelerated, after a refund of the unearned interest which would be required for prepayment in full as of the date of acceleration, the interest shall thereafter be computed at the maximum rates permitted on the outstanding' unpaid principal balances from the installment date due following the date of acceleration until the note is paid in full. This provision in the note is consistent with the provisions of § 408.175. We hold therefore that there is no substantial evidence to support the action of the trial court in entering judgment for the defendant on the grounds that this note was usurious and therefore unenforceable.

The action of the trial court sustaining defendant’s motion for a directed verdict at the close of plaintiff’s case and entering judgment thereon for the reason that the note sued on was usurious is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

SMITH, C. J., and STEWART, J., concur.

      . Edna Carol Trower was not named as a party to plaintiffs petition.

      . This allegation of failure to comply with the federal act was abandoned and is not before us on appeal.

      . All statutory references are to RSMo 1959 unless otherwise specified.
      When reference is made to §§ 408.100 & 408.200 they are to RSMo 1959, as amended Laws 1959, H.B.No.320, § 1. When reference is made to § 408.130 it is to RSMo 1959 as amended Laws 1965, p. 114, § L

      . The record is not clear when this payment of insurance proceeds was actually received by the plaintiff. The ledger card shows a payment of $56.00 on July 19, 1968. Following this entry are three entries bearing the same date in amounts of $293.55, $39.50 and $12.35, respectively reducing the unpaid balance from $1,904.00 to $1,558.60. A line is struck through all of these, and an entry of July 25, 1969, gives a credit for $995.00, reducing the unpaid balance to $909.00. Defendant, in his brief contends the July 1st payment was made June 19, 1968, but offered no evidence to support this claim.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Richard BOLDEN, Appellant, v. STATE of Missouri, Respondent.
    No. 36043.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 25, 1975.

      Legal Aid Society of St. Louis, Huck, Kasten & LaBeaume, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Appellant-movant appeals from denial of his pro se Rule 27.26 motion. In the trial court defendant pled guilty and was sentenced to seven years’ imprisonment for armed robbery and he pled guilty and was sentenced to two years’ imprisonment for felonious escape, the sentences to run consecutively.

The only issue raised by movant’s motion is that at the time he pled guilty he had the mistaken belief he could have the two sentences run concurrently. On appeal he contends he was entitled to an evidentiary hearing and to have counsel appointed to represent him on his motion. We affirm the trial court’s denial of post-conviction relief.

We find no record to support movant’s present contention concerning concurrent sentences. In his pro se motion he pleaded: “Your Honor, at the time I was in your court, to my knowledge I thought that I could get my sentence to run together; with the filing of a motion 27.26 and it is with this in view that I now make this request.”

In the trial court movant withdrew his not guilty pleas and pleaded guilty to both charges. This, after extensive questioning by the trial court showed he was doing so voluntarily with full understanding of the consequences. With regard to consecutive sentences, after the court had sentenced movant to seven years for armed robbery and again questioned him as to the volun-tariness and understanding of his guilty plea to the charge of escape, the following occurred:

“THE COURT: All right. Let the record show that I accept your plea of escaping before conviction and I find you guilty as charged and in connection with that plea you will be sentenced to two years in the Missouri Department of Corrections to run consecutive with the charge heretofore imposed in 72-1776.
THE COURT: Is that the State’s recommendation?
MR. CHANCELLOR: That’s right. That’s what the recommendation is.
THE COURT: Under the circumstances, Mr. Bolden (the defendant), I accept the State’s recommendation in this case. I’ll give you a chance to withdraw your plea if you want to.
MR. BOLDEN: Well, nine years seems a long time. All right; go ahead and give it to me.
THE COURT: Let the record show that the defendant is sentenced to two years in the Missouri Department of Corrections to run consecutive with the other charge.”

The burden of proof is on movant to establish grounds for relief by a preponderance of evidence (Haynes v. State, 491 S.W.2d 10 (Mo.App.1973)) and that manifest injustice resulted from acceptance of his plea of guilty (Beach v. State, 488 S.W.2d 652 (Mo.1972)).

The record at the guilty plea refutes movant’s 27.26 contention he then had a mistaken belief his two sentences could be served concurrently. So, it was unnecessary to grant an evidentiary hearing. An evidentiary hearing is required only when movant has “plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974).

Having reached the conclusion an evidentiary hearing was not required, it follows that movant was not entitled to appointment of counsel to assist him with the motion. Duisen v. State, 504 S.W.2d 3 (Mo.1974).

The judgment is affirmed.

KELLY and STEWART, JJ., concur.


author: PER CURIAM:

text:
    KEOKUK INVESTMENT CO., Plaintiff-Appellant, v. Ethel W. DOERHOFF, Defendant-Respondent.
    No. 36656.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 25, 1975.

      Edwin Rader, Clayton, for plaintiff-appellant.
    Richard Wolff, Kappel, Neill, Staed & Wolff, St. Louis, for defendant-respondent.
   PER CURIAM:

Plaintiff-appellant, Keokuk Investment Co., sought a mandatory injunction to remove a portion of defendant’s building which encroached some four feet six inches onto plaintiff’s land. Defendant-respondent Mrs. Ethel W. Doerhoff, counterclaimed and asserted that a five-foot strip of land, the length of her property — on part of which was located her building — was acquired by adverse possession.

After a trial before the court, the court denied the injunction to require the defendant to remove a portion of her two-story building which encroaches upon the plaintiff’s property because it would be “oppressive and burdensome” and would work an “extreme and much greater hardship against the defendant as compared to any benefit which would accrue to plaintiff ..” The trial court also found that Mrs. Doerhoff and her predecessors in title were in actual, open, notorious, uninterrupted, exclusive and lawful possession of the strip of land for the prescribed time and ordered that Mrs. Doerhoff was vested with the title to the 5.20 foot strip of land west of her building.

There is no necessity to recite the lengthy and often confusing facts. Suffice it to say that plaintiff desired to build multi-family units west of the defendant’s property. It obtained building permits to erect such units; and, in the course of having a survey, discovered that the defendant’s property encroached. After learning of the same, plaintiff started construction.

We have read the entire record, we have examined all the exhibits, read the briefs and the authorities relied upon by both parties and are convinced that the findings and judgment of this court tried case are not erroneous and should be affirmed in all respects.

Whether a mandatory injunction to compel the removal of a part of a building which encroaches upon land of another should be granted is a matter of discretion of the chancellor in balancing the equities. The “strong arm of equity” is to be applied with caution and is to be used sparingly. Hanna v. Nowell, 330 S.W.2d 595, 603 (Mo.App.1959); Blumenberg v. Minton, 507 S.W.2d 26, 28 (Mo.App.1974); 1 Am.Jur.2d Adjoining Landowners § 131 (1962); Annot., 28 A.L.R.2d 679, 692 (1953). To require the defendant to remove the encroachment would require the removal of a wall “three-bricks thick,” a part of the foundation and certain gas, plumbing and electrical fixtures. We find no abuse of discretion in the trial court’s denying the mandatory injunction.

Neither do we find that the court erred in determining that the defendant acquired title to the 5.20 foot strip of plaintiff’s property. The defendant and her predecessors in title exercised dominion over the strip for a long period of time.

“[Although a claimant, upon occupancy under a mistake as to the true boundary, did not intend to take land from the true owner and did not intend to occupy and possess land to which he had no record title, his possession may be hostile and adverse if he intended to occupy and did occupy as the owner.” Walters v. Tucker, 308 S.W.2d 673, 676 (Mo.1957).

There was substantial evidence that, at least since 1948, Mrs. Doerhoff and her deceased husband exercised actual, open and uninterrupted dominion over the five foot strip.

Keokuk Investment Co. contends that Mrs. Doerhoff stands in the position of a “grantor” of the land and therefore the grantor’s possession is presumed to be subservient to the grant unless the grantor or his successors by words, acts or conduct apprise and give notice to the grantee that there is a claim of title. Reinheimer v. Rhedans, 327 S.W.2d 823, 830 (Mo.1959); Robinson v. Reynolds, 176 S.W. 3, 5 (Mo.1915); Barada-Ghio Real Estate Co. v. Keleher, 214 S.W. 961, 962 (Mo.1919); Annot., 39 A.L.R.2d 353, 355 (1955). But this principle is inapposite in this proceeding. The evidence in no way discloses that Mrs. Doer-hoff or her predecessors in title conveyed the land which included the five foot strip to the plaintiff grantee. The issue is whether the defendant or her predecessors acquired title to the strip by adverse possession. In any event this principle is held to obtain only between the original grantor and grantee and not between their grantees or successors. See 3 Am.Jur.2d Adverse Possession § 163, p. 245 (1962).

Keokuk also contends that when a family relationship exists between the parties, i. e., in this instance between the original predecessors in title, in addition to a grantor-grantee relationship, courts are reluctant to grant title by adverse possession. This argument is without merit. There was no evidence that the common ancestors in title were related. They had the same last name. But we cannot speculate that such a relationship existed.

This is a court tried case. As such, we review the cause de novo both upon the law and the evidence and give due deference to the opportunity of the trial court to assess the credibility of the witnesses, and the judgment is not to be set aside unless it is erroneous. Rule 73.01(3).

Upon our own independent examination of this record, we conclude that the judgment should, in all respects, be affirmed.

The judgment is affirmed.

All the Judges concur.


author: HENRY, Justice.

text:
    Freddie Lee BENNETT, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 27, 1975.
    Rehearing Denied Dec. 1, 1975.
    Robert M. Stivers, Jr., Ronald E. Hedges, Knoxville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Bart Durham, Asst. Atty. Gen., Ronald A. Webster, Dist. Atty. Gen., Ralph E. Harwell, John T. O’Connor, Asst. Dist. Attys. Gen., for respondent.
   OPINION

We granted certiorari in this case to examine so much of the record as touches upon the petitioner’s complaint that the in-court identification made by the prosecutrix was tainted by suggestive practices of the Knoxville Police Department prior to a lineup identification.

The Court of Criminal Appeals upheld the action of the trial judge in holding that the identification was not so tainted.

I.

Defendant was convicted of armed robbery and rape. While the record contains ample corroboration of the commission of these offenses, the identity of the defendant was essentially established by the testimony of the prosecutrix. The factual situation must be fully considered since it throws substantial light upon the ability of the prosecutrix to identify the defendant.

At about 10:00 o’clock, P.M. on Friday, July 13,1973, the prosecutrix, an unmarried female, accompanied by her two small children, the eldest of whom was under four years of age, and by a male companion, Willard Sturch, checked into room 9 of the Magnolia Hotel in Knoxville. What ensued for the next two or three hours, after the children were tucked safely into one of the two double beds, is of no significance and certainly would not be startling under prevailing conditions. Among other things, after they had checked into the motel she had one drink and Sturch had several.

In due course, and while Sturch was stretched out on another bed sleeping the sleep of the just after, and while the prose-cutrix was lying on her bed nude, but modestly covered by a sheet, looking at television, the defendant entered the room, carrying a pistol. There ensued some conversation during which she inquired whether he was in the right room. He made known that robbery was his motive, told her to be quiet and she told him where to find her own money and that of her sleeping companion. He instructed her to close her eyes and she complied, but “peeped” occasionally. The record fairly establishes that she had her eyes closed much, if not most of the time. During the entire course of events the large color television set was in operation and a bathroom light was shining through the open bathroom door. There is no doubt but that these two sources created ample illumination to enable a person with normal vision to identify another person walking about the room.

It is her testimony that he rambled about the room for some thirty to forty-five minutes, during which time he removed her money from her purse and took the wallet and certain other valuables from her companion’s trousers. At all times he held on to his gun and occasionally would speak to her. Finally, he came to her bed, partially removed the sheet, pointed the gun at the head of her small child who had come over to her bed prior to defendant’s entry upon the scene, threatened to kill both the child and her, and committed the act of rape. This only lasted a matter of seconds since the initial penetration was accomplished with such gusto that the bed shook and vibrated causing Sturch to arouse. Whereupon, defendant shot him, and fled the room.

It should be pointed out that Sturch left the jurisdiction, could not be located, and, therefore, did not testify.

One week later, on July 20, 1973, late in the nighttime, the defendant was apprehended attempting to enter Room 10 of the same motel, and was taken into custody.

On 23 July 1973, the prosecutrix was called to the Detective Division at the Police Station. At this time she was shown a single photograph of the defendant and was told by a captain of the Knoxville Police Department that “he had a picture of the suspect that he had picked up”, and was asked “if that could possibly be him”. Her response was: “I told him it was him, that was the man”. She emphatically denies, as do the police officers, that she was ever told that this was the man who committed the crimes — merely that he was a suspect. She was not told that he would shortly appear in a line-up.

Immediately after this identification she was taken to a line-up where the defendant and four other individuals appeared. She positively identified the defendant.

It should be pointed out that on the night of the incident she gave the investigating officers a full and accurate description of the defendant’s attire and physical characteristics. She told them at that time that she had gotten a good look at him. They checked the lighting condition of the room and confirmed her ability to see and identify an assailant. It should also be noted that there was an apparent effort on the part of the defendant to alter his appearance. On the night of the crime he was smoothly shaven; by the time of the lineup, he had started growing a mustache and chin whiskers. By the time of the preliminary hearing he had grown a mustache.

Essentially this is the factual background as reflected by evidence which stands accredited and validated by the jury verdict. We now examine the applicable law.

II.

The controlling law is of comparatively recent vintage. Prior to 1967 the manner in which a line-up was conducted or an extra-judicial identification was made went to the weight of the testimony and not its admissibility upon the trial. In a trilogy of cases decided by the Supreme Court of the United States in June, 1967, the Court dealt with post-indictment line-up procedures.

In the first of these, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court held that a post-indictment line-up is a critical stage of a prosecution at which the defendant is entitled to be represented by counsel. While Wade does not deal with an identification allegedly tainted by the use of a photograph prior to the line-up, the Court recognizes the potential for abuse and points out that the line-up confrontations are “peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial”. The Court aptly points out that:

A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. 388 U.S. at 228, 87 S.Ct. at 1933.

In the second case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Court dealt with a line-up conducted sixteen days after indictment and after the appointment of counsel. Again photographs exhibited to a witness prior to the line-up were not involved. Again the Court held that a post-indictment pretrial line-up is a critical stage of a criminal prosecution and that conducting such a line-up in the absence of the defendant’s counsel, denies the accused his Sixth Amendment right to counsel, and calls into question the admissibility of the in-court identification. The court vacated the judgment of conviction pending the establishment by the State of California that the in-court identification had an independent source, or that the introduction of such identification was harmless error.

The third case, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), reaffirms the holding of Wade and Gilbert, and reiterates the prohibition against exhibiting an accused in a line-up, for identification purposes without notice to and in the absence of counsel. Stovall announces a rule of law that:

[a] claimed violation of due process of law in the conduct of a confrontation depends upon the totality of the circumstances surrounding it . . . . 388 U.S. at 302, 87 S.Ct. at 1972.

The “totality of the circumstances” rule of Stovall was reaffirmed in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968). In this case snapshots of the accused were shown to five bank employees who had witnessed the robbery. The insistence was made that this pretrial identification by means of photographs was so unnecessarily suggestive and conducive to misidentification as to constitute a denial of due process of law. In discussing the hazards of initial identification by photographs the Court said:

It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witnesses only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misiden-tification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of the subsequent line-up or courtroom identification. 390 U.S. 383, 384, 88 S.Ct. at 971.

Notwithstanding the inherent dangers in the use of photograph identification, the Court recognizes that this procedure “has been used widely and effectively in criminal law enforcement, from the standpoint of both apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eye-witnesses to exonerate them through scrutiny of photographs”. In conclusion the Court said:

We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 390 U.S. at 384, 88 S.Ct. at 971.

The case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), is analogous to the case under consideration. Big-gers was convicted of rape and the Tennessee Supreme Court upheld that conviction in the face of an attack upon the show-up identification procedure. He petitioned for the writ of habeas corpus and the United States District Court for the Middle District of Tennessee held that the show-up identification procedure was so suggestive as to violate due process. The Sixth Circuit affirmed (448 F.2d 91). On certiorari the Supreme Court reversed and remanded. With respect to the ability of the victim to recognize and identify her assailant the Court said:

The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of the most personally humiliating of all crimes. Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had ‘no doubt’ that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation.

In disagreeing with the conclusions of the District Court, the Supreme Court held that the factors to be considered in evaluating the likelihood of misidentification include

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

III.

The victim’s degree of attention was adequate. The defendant was in her room for a period estimated from thirty to forty-five minutes and while during much if not most of this time she had her eyes closed, it is evident that she “peeped” or looked from time to time and that she had sufficient opportunity to see and observe him and that she availed herself of that opportunity. Moreover, as pointed out by the Court in Biggers, “she was no casual observer, but rather the victim of one of the most personally humiliating of all crimes”. She testified positively that she got a good look at him.

Her description of the defendant was full and accurate. She identified the defendant in the line-up with certainty and “very shortly” and as soon as the line-up procedures had been completed.

The crime was committed on July 14, 1973; the line-up was conducted on July 23, 1973.

The identification procedure squares with the criteria established in Neil v. Biggers, supra, and under the “totality of the circumstances” rule, it is our view that the identification of the photograph prior to the line-up did not taint the identification made at the line-up and that neither tainted the in-court identification.

While we do not condemn the practice of using mug shots or other photographs during the course of the investigation of a criminal episode, we do not look with favor upon the practice of using such photographs immediately prior to a line-up or show-up. We think the practice under those circumstances is suggestive in that the likelihood of misidentification is increased. We think that the use of the photograph in this case, immediately prior to a line-up was improper and erroneous. However, we do not hold it offends constitutional due process. This conclusion must be dependent upon the totality of the circumstances and the application of the standards hereinabove set forth. In the “totality of the circumstances” concept, we have examined the record and find that there is substantial other testimony to validate the identification of the defendant as being the culprit who committed the crime of robbery and rape in this case. Among other things, we are persuaded by the fact that seven days after the commission of the offense here involved, the defendant was apprehended, late at night, on the same night of the week, at the same motel, attempting to enter an adjoining room while armed with a pistol of the same caliber used to inflict the wound upon the victim’s companion.

We therefore hold that from the totality of the proof presented in this controversy, the in-court identification of the defendant was not tainted by the use of a photograph prior to the line-up, although we, in our supervisory capacity, caution against the use of photographs in general, and a single photograph in particular, immediately preceding a line-up or show-up. We adopt the rule of Simmons and Biggers as representing the applicable standards in this jurisdiction and under the due process requirements of the Constitution of the State of Tennessee.

The judgment of the Court of Criminal Appeals is

Affirmed.

FONES, C. J., COOPER and HARRISON, JJ., and INMAN, Special Justice, concur.

ORDER DENYING PETITION TO REHEAR

HENRY, Justice.

The matter cited in the petition to rehear was considered along with all of the other facts and circumstances of this case, although it was not specifically commented upon in the Court’s opinion. We are fully satisfied from a careful examination of the record and analysis of the proof presented that the petitioner was fully and fairly identified and that his ensuing conviction was fully supported by the evidence.

The petition to rehear is accordingly denied.

      . Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967).


author: CARNEY, Presiding Judge.

text:
    C. R. (Neil) GRIFFIN and wife, Elizabeth N. Griffin, Complainants-Appellants, v. G. Patrick ARNOULT, Conservator for George Young Jones, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    June 13, 1974.
    Certiorari Denied May 12, 1975.
    William D. Marshall, Jr., Hal Gerber, Memphis, for appellants.
    Krivcher & Cox, James S. Cox, Memphis, for appellee.
   CARNEY, Presiding Judge.

Mr. and Mrs. Griffin, as sole beneficiaries under the will of G. Y. Jones, have appealed from an award of $12,500 fee to G. Patrick Arnoult, the conservator of G. Y. Jones, and an award of $25,000 attorneys’ fees to James S. Cox for services rendered to the conservator in a suit against the complainants for the recovery of certain alleged inter vivos gifts by the deceased, G. Y. Jones and/or his wife, Mrs. Grace Yates Jones, also now deceased.

The conservator sought the recovery of approximately $342,000. He recovered a judgment in the Chancery Court of Shelby County for $275,000 against the complainants together with an order for the return of bearer bonds in the amount of $64,000. On an appeal to this Court the judgment was reduced to $78,000. Certiorari was denied by the Tennessee Supreme Court and the judgment became final. See Arnoult v. Griffin, Tenn.App., 490 S.W.2d 701.

After Mr. Jones’ death, his will was offered for probate and contested by his relatives. A compromise was entered into between the complainants-appellants and some of the contestants and the will was admitted to probate. The appellants, Mr. and Mrs. Griffin, as the sole beneficiaries acceded to all of the property of Mr. Jones including the judgment against themselves of $78,000.

His Honor, Judge Pierotti, the Probate Judge, awarded the conservator a fee of $12,500 and awarded James S. Cox an attorney’s fee of $25,000.

Assignment of error No. I insists that His Honor the Trial Judge was in error in finding that the conservator was, at all times, acting upon reasonable grounds. We find no merit in this assignment of error and it must be respectfully overruled. His Honor the Probate Judge was fully informed as to the actions of the conservator and the conservator was expressly authorized by the Probate Judge to bring the litigation referred to above.

Assignments of error II and III challenge the award of $25,000 to the conservator’s counsel. Appellants aver that the fee is excessive and his services were of little or no benefit to the ultimate beneficiaries of the conservatorship estate.

When the matter of the fees of the conservator and his attorney came on to be heard before the Probate Court, appellants, through their solicitors, appeared and made objection to any fee being awarded to the attorney for the conservator insisting, as here, that the services of the attorney did not inure to the benefit of the appellants who were the ultimate beneficiaries of the estate. His Honor the Probate Judge filed an opinion in which he outlined the history of the litigation in Chancery Court and emphasized the fact that the filing of the litigation in Chancery Court was not the decision of the conservator but a decision of the Probate Court. Judge Pierotti further found that 755 hours had been expended by the conservator and his attorney and fixed a total compensation for both at $37,500. He then apportioned the amount by allowing $12,500 to Mr. Arnoult, the conservator, and $25,000 to his attorney, Mr. Cox. The Probate Judge has authority to award fees to the conservator and to his attorney. The evidence does not preponderate against the amounts allowed by Judge Pierotti. Assignments of error II and III are respectfully overruled.

The judgment of the lower Court is, therefore, in all things affirmed and the cause is remanded to the lower Court for further proceedings consistent with this opinion. The costs in the lower Court and in this Court are taxed against the estate of G. Y. Jones.

MATHERNE and NEARN, JJ., concur.


text:
    WILLIAM B. TANNER COMPANY, INC., Plaintiff-Appellee, v. James C. TAYLOR, Defendant-Appellant, and Sweep Productions, Inc., Defendant.
    Court of Appeals of Tennessee, Western Section.
    July 1, 1974.
    Certiorari Denied Dec. 2, 1974.

      James S. Cox, Krivcher & Cox, Memphis, for defendant-appellant.
    James E. Irwin, Memphis, for plaintiff-appellee.
   CARNEY, Presiding Judge.

PLAINTIFF’S MOTION FOR DIMINUTION OF THE RECORD

The plaintiff, William B. Tanner Company, Inc., has filed a motion suggesting diminution of the record along with a stenographic copy of the argument and remarks of counsel and comments of the Chancellor upon the trial below and has requested that such stenographic copy be made part of the record in this Court. This motion is not well-taken and must be denied. Statements of counsel and of the trial judge or chancellor as well as special instructions to the jury are not part of the technical record unless contained in a bill of exceptions or entered upon the minutes of the Court and signed by the trial judge or chancellor. In law cases a stipulation of fact must either be entered on the minutes or contained in a bill of exceptions to become part of the record. See Lyon v. Crabtree, 1932, 16 Tenn.App. 42, 64 S.W.2d 24; Cohen v. Cook, 62 Tenn.App. 292, 462 S.W.2d 502; Standard Life v. Adams, 1939, 174 Tenn. 405, 126 S.W.2d 311.

Therefore, we have not considered the stenographic report.

DISCRETIONARY APPEAL OF DEFENDANT, JAMES C. TAYLOR

The appeal is from an order of the Chancery Court denying the motion of defendant, James C. Taylor, to dissolve, or modify, or clarify a temporary injunction and from the order of the Chancellor overruling the defendant’s motion for a summary judgment.

The injunction complained of restrained and enjoined the defendant, James C. Taylor, from “selling or offering to sell, either directly or indirectly, musical reproductions for advertising purposes to radio or television stations, or their customers, pending further orders of this Court.” The plaintiff, William B. Tanner Company, Inc., defendant’s former employer, was required to post a $50,000 bond before the issuance of the temporary injunction.

The plaintiff, William B. Tanner Company, Inc., is the same company formerly known as Pepper & Tanner, Inc. For the past ten years it has been engaged in the radio, television, communications, and advertising industries with offices in Memphis, Tennessee. The complaint averred that as part of its services to the radio and television industry, the plaintiff employs writers, musicians, sound technicians, singers, and production personnel to create and produce musical materials for sale and distribution to radio and television stations and other clientele throughout the fifty states and foreign countries; and that the plaintiff has developed and trained writers, musicians, sound technicians, and production personnel in the specialized fields of creating and producing commercial productions particularly adapted to radio and television use; and that it has established a nationwide sales force to present these specialized productions to the radio and television industry and that the training and education of sales personnel to present these productions has been a great expense to the complainant.

Defendant James C. Taylor was hired as sales manager of the plaintiff corporation on January 25,1971, by written contract for a three-year period at an annual salary of $18,000 plus a sales bonus of two percent of all net sales of the Concept Division, less kills, in excess of $750,000 annually provided the sales to earnings ratio is maintained at not more than twenty-five percent. Mr. Taylor was also to receive a personal bonus of one percent of all personal net sales made by him and his assistants in the office, less kills, in excess of $75,000 per month. Other fringe benefits included a stock option.

On February 16, 1972, the defendant, James C. Taylor, sent a note to the president, William B. Tanner, stating that he had to have more money; that he had turned down $2,500 a month from two other companies in Memphis; that he wanted $2,000 per month plus $4,000 bonus for 1971. Effective March 1, 1972, his salary was increased to $2,000 per month for a total of $6,000 annual raise. On March 20, 1973, the defendant, Taylor, sent an informal note to Mr. Tanner saying he was quitting. Mr. Tanner, the president, refused to accept the resignation. On March 21, 1973, the defendant, Taylor, submitted a typewritten letter of resignation but he did not cease work until April 10, 1973. Prior to March 20, 1973, the defendant had agreed orally to go to work for the defendant, Sweep Productions, Inc., a competitive business.

On April 19, 1973, John McFarlane and Ted Slusher, former employees of William B. Tanner Company, also in the sales department, quit their employment and were employed by the defendant, James C. Taylor, on behalf of Sweep Productions, Inc. at the same salary they had been receiving at William B. Tanner Company. Within a few days McFarlane and Slusher were rehired by William B. Tanner Company at increased salaries.

The duties of the defendant, James C. Taylor, as employee of Sweep Productions, Inc., are substantially the same as his duties as sales manager of William B. Tanner Company, Inc. Taylor’s contract of employment with Tanner expressly prohibited him from engaging in a similar business for two years and provided that Tanner Company might enforce the contract by injunctive relief. We quote paragraphs XI and XII of the contract as follows:

“XI. AGREEMENT NOT TO COMPETE
Jim Taylor further agrees that he will not engage as an employer, employee, principal, agent or otherwise, directly or indirectly for a period of two (2) years following the termination of his employment hereunder, in a similar business to that of the Company in any place in the United States, Canada or Mexico. If he does so in violation hereunder, the Company shall be entitled to an injunction by any competent court of equity, enjoining and restraining him and each and every other person concerned from continuance of such employment, service or other act prohibited hereby.
XII. PRIVILEGED RECORDS
Jim Taylor further agrees that for and during the entire term of his employment any information, data, figures, sales figures, projections, estimates, customer lists, tax records, personnel history, accounting procedures, promotions, etc., shall be considered and kept as the private and privileged records of the Company and will not be divulged to any firm, individual or institution except on the direct authorization of the President of the Company. Further, that upon termination of this Agreement for any cause, the Employee agrees that he will continue to treat as private and privileged any information, data, figures, projections, estimates, customer lists, tax records, personnel history, accounting procedures, etc., and will not release any such information to any person, firm or institution, either by statement, deposition or as a witness, except upon direct written authority of the President of the Company and that the Company shall be entitled to an injunction by any competent court to enjoin and restrain the unauthorized disclosure of such information.”

The original complaint of William B. Tanner Company alleged that the defendant, Sweep Productions, Inc., induced and persuaded James C. Taylor, sales manager of its Concept Division, to breach his employment contract with William B. Tanner Company, Inc. and to work for Sweep Productions, Inc. in direct competition with plaintiff Corporation. The complaint further averred that defendants, Sweep Productions, Inc. and James C. Taylor, did unlawfully conspire and scheme to pirate away other trained personnel of the plaintiff, William B. Tanner Company, Inc., and to unlawfully obtain business secrets, customer lists, and other confidential information relating to the plaintiff’s business and its customers.

The complaint charged the defendants with violation of the following Code sections:

T.C.A. Section 69 — 101
“Trusts and combinations lessening competition or controlling prices unlawful and void. — All arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view to lessen, or which tend to lessen full and free competition in the importation or sale of articles imported into this state, or in the manufacture or sale of articles of domestic growth or of domestic raw material, and all arrangements, contracts, agreements, trusts, or combinations between persons or corporations designed, or which tend, to advance, reduce, or control the price or the cost to the producer or the consumer of any such product or article, are declared to be against public policy, unlawful, and void.” T.C.A. Section 47-15-113
“Procurement of breach of contracts unlawful — Treble damages. — It shall be unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto; and, in every case where a breach or violation of such contract is so procured, the person so procuring or inducing the same shall be liable in treble the amount of damages resulting from or incident to the breach of said contract; and the party injured by such breach may bring his suit for said breach and for such damages.”
T.C.A. Sections 50-201 and 50-202
“50-201. Enticing away employees— Liability. — It shall be unlawful for any person, knowingly, to hire, contract with, decoy or entice away, directly or indirectly, any one, who is at the time under contract or in the employ of another; and any person so under contract or employ of another, leaving his employ without good and sufficient cause, before the expiration of the time for which he was employed, shall forfeit to the employer all sums due for service already rendered, and be liable for such other damages the employer may reasonably sustain by such violation of contract.
50-202. Penalty for enticing — Damages. — Any person violating the provisions of the first clause of Sec. 50-201 shall be liable to the party who originally was entitled to the services of said employee, by virtue of a previous contract, for such damages as he may reasonably sustain by the loss of the labor of said employee; and, whether he had knowledge of an existing contract or not, if he fails or refuses to discharge the person so hired, or to pay such damages as the original employer may reasonably claim, after he has been notified that the person is under contract, or has violated the contract with such other person, which amount shall be ascertained, and the collection enforced by action for damages before any court or justice of the peace of the county where said violation occurs, or the party violating said action may reside.”

Writs of injunction, both temporary and permanent, to restrain the defendant, James C. Taylor, from engaging in direct or indirect competition with William B. Tanner Company, Inc. for a period of two years from and after April 20, 1973, as set out in his contract, and to enjoin and restrain James C. Taylor from the use, appropriation, discovery or delivery of the contents of any materials, information, clients lists, productions, or privileged data received by James C. Taylor while in the employment of William B. Tanner Company, Inc. were prayed for.

The complaint also sought an injunction both temporary and permanent against defendant Sweep Productions from engaging in unfair competitive practices and to enjoin it from employing James C. Taylor to engage in direct or indirect competition with William B. Tanner Company, Inc. and to enjoin Sweep Productions, Inc. from using any trade secrets or materials obtained from employees of the complainant. The complaint also sought the recovery of $500,-000 actual damages and $500,000 punitive damages against both defendants, James C. Taylor and Sweep Productions, Inc.

After a hearing the Chancellor refused to issue an injunction against defendant Sweep Productions, Inc. but did issue the temporary injunction against the defendant, James C. Taylor, as above set out. Thereupon, the defendant, James C. Taylor, filed a motion to dissolve or in the alternative to modify the temporary injunction and also filed a motion for summary judgment.

The Chancellor heard and considered affidavits in support of and in opposition to said motions. He overruled all defendant’s motions from which the appeal was granted to this Court.

Upon this appeal the defendant, Taylor, insists: (1) that paragraph XI of the employment contract, “Agreement Not to Compete,” was so broad, excessive and oppressive as to render the agreement unenforceable; (2) that paragraph XII of the contract, “Privileged Records,” is void because in contravention of public policy in that it requires the defendant to suppress evidence and obstruct justice and subjects the defendant to liability for doing that which he can be compelled by law to do, to-wit, testify under oath, regardless of whether he has the authority of the president of the company or not; (3) that since there is no severability clause in the contract and since paragraph XI is unenforceable and paragraph XII is illegal, the entire contract is unenforceable; (4) that he was justified in quitting his position with the plaintiff because of intolerable working conditions, to-wit, his telephone calls were monitored at the office and mail addressed to him at the office was opened and read by his employers.

We turn first to the assignment that paragraph XI of the contract, the Agreement Not to Compete, is void and unenforceable. Tennessee Courts have construed similar contracts in several cases. In the very fine opinion of Presiding Judge McAmis in the case of Kaset, et al. v. Combs, et al., 1968, 58 Tenn.App. 559, 434 S.W.2d 838, many of the cases construing such restrictive contracts are discussed. The general rule prevailing in Tennessee is stated by Judge McAmis as follows:

“Where such restrictive contracts are reasonable as to territory and time, where a violation would result in serious damage or injury to the employer and impose no undue hardship upon the employee a court of equity will enjoin a violation of the restrictive provisions of the employment contract. Fed. Mut. Imp. & Hdw. Ins. Co. v. Anderson, 49 Tenn.App. 124, 351 S.W.2d 411, and cases cited.
‘Agreements in restraint of trade, such as covenants restricting competition, are not invalid per se. Although disfavored by law, such agreements are valid and will be enforced, provided they are deemed reasonable under the particular circumstances.’ Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 409 S.W.2d 361.”

The defendant Taylor insists that the restrictive covenant is unreasonable as to territory because there are 6,000 radio stations in the United States, Canada, and Mexico and that William B. Tanner Company only does business with something over 200 of them at the present time. Tanner Company contended that it does business in 48 states.

Defendant Taylor, as sales manager, had access to lists of every radio station with whom Tanner had done business or sought to do business including lists and data relating to customers of the radio station for whom advertisements were sold. He had peculiar knowledge of the prices charged, the nature of the contracts, etc. He was hired and trained to become sales manager at considerable expense to his employer. The restrictive agreement not to compete was clear and unambiguous at the time he signed the contract.

With reference to the area covered, if the defendant had, in fact, moved to Canada or Mexico or some remote part of the United States where plaintiff did no business and defendant was seeking to be relieved of an injunction against competing in a particular area, the defendant’s position would be greatly different from his present posture. Defendant remained in Memphis and admittedly went into direct competition with plaintiff immediately upon leaving plaintiff’s employ. He consulted with one or more lawyers prior to the time he terminated his employment relative to the validity of paragraphs XI and XII of the contract. He contracted with plaintiff’s competition while still employed by plaintiff.

In view of the extensive area covered by the employer’s business, paragraph XI is not invalid as being unreasonably broad in this respect. See De Long Corporation v. Lucas, D.C.N.Y., 176 F.Supp. 104, affirmed, 2 Cir., 278 F.2d 804, certiorari denied, 364 U.S. 833, 81 S.Ct. 71, 5 L.Ed.2d 58.

As to the time element of two years, we note that the Chancellor has issued only a temporary injunction against defendant. However, we hold that the restriction against competition for two years is a reasonable period of time under the facts of this case.

Turning now to paragraph XII, Privileged Records, we are cited to no case by the appellant which holds that covenants similar to that described in paragraph XII are illegal. It is contended by appellant that such a contract is against public policy because it requires him to conceal evidence and obstruct justice. We disagree. If a court of competent jurisdiction should order the defendant to release such information in a proper case, then it is inconceivable that such or any other court could or would attempt to hold the defendant in violation of the contract for obeying the orders of such court. The contract only prohibits the defendant from voluntarily releasing or divulging the trade secrets he obtained while in the employ of plaintiff to plaintiff’s damage. See Arkansas Dailies v. Dan, 36 Tenn. App. 663, 260 S.W.2d 200.

There is no contention that defendant is unable to earn a living for his family in any other field of endeavor. Unquestionably, he is a man of considerable ability and able to command a good salary in more than one field.

To enforce the covenants in paragraphs XI and XII quoted above will not work an undue hardship on the defendant Taylor. It will require him to do only what he solemnly contracted to do. To fail to enforce them, will give plaintiff’s competition, Sweep Productions, Inc., an unfair advantage over the plaintiff; full information about plaintiff’s contract, its personnel, its manner of operation, plans for expansion and possibly others; all by means of defendant’s wilful breach of his written contract of employment with plaintiff.

Therefore, the Chancellor will not be held in error for refusing to dissolve or modify the injunction. There is a $50,000 bond to protect the defendant if plaintiff fails to prove its case.

The assignments of error relating to paragraphs XI and XII are respectfully overruled.

Finally, defendant contends the Chancellor erred in failing to award him summary judgment because plaintiff’s conduct made defendant’s further employment intolerable. Mr. Tanner made affidavit that his company spent $250,000 per year for WATS telephone service; that all personnel including defendant knew the telephone calls and mail were monitored; that they had advised all personnel including defendant Taylor that they should use the telephone for business only and should have personal mail sent to their residences.

Defendant never complained to President Tanner or anyone about the monitored phone calls or the monitored mail. Affidavits show clearly that defendant did not quit for these reasons. He quit to make more money from and probably to become an official of plaintiff’s competitor. The trade secrets he held were a strong factor in defendant’s getting the better job. On the record before this Court, defendant has not played fair with his employer. The Chancellor correctly overruled defendant’s motion for summary judgment.

The assignments of error are all overruled; the appeal is dismissed; the decrees of the lower Court are affirmed and the cause remanded to the Chancery Court for further proceedings consistent with this opinion.

The cost of this appeal is taxed to defendant. The costs in the lower Court will be adjudicated by the Chancellor.

MATHERNE and NEARN, JJ., concur.