author: PUDLOWSKI, Judge.

text:
    Dennis MACCHI, Appellant, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A. Schicker, Jr., Mayor James Conway, Comprising the Board of Police Commissioners, St. Louis, Missouri, Respondents.
    No. 40606.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 21, 1979.

      C. John Pleban, London, Greenberg & Fleming, St. Louis, for appellant.
    David O. Danis, Samuel B. Murphy, Jr., Whalen, O’Connor, Danis & Tobben, St. Louis, for respondents.
   PUDLOWSKI, Judge.

Officer Dennis Macchi, of the St. Louis Metropolitan Police Department, was dismissed from his employment following a hearing of the St. Louis Board of Police Commissioners. Macchi appealed to' the Circuit Court of St. Louis, which affirmed the decision of the board. This appeal followed.

The Inspector of the St. Louis Metropolitan Police Department filed a total of nine charges and specifications against Officer Macchi. Appellant was found guilty of seven offenses, violations of the Police Manual. The Police Board ordered appellant dismissed from the Department. The charges which appellant was found guilty of were essentially that:

1. On January 26, 1977, Officer Macchi appeared before Major Brown, Deputy Chief Inspector of the St. Louis Police Department, in an unbuttoned long sleeve shirt in violation of Rule 10, Section 10.024 of the Police Manual.

2. Officer Macchi appeared before Major Brown on January 26,1977, in a uniform which was not pressed, was dirty and greasy, and in general disarray in violation of Rule 10, Section 10.072 of the Police Manual.

3. Officer Macchi disobeyed orders from a supervisor, in violation of Rule 9, Section 9.001(b) of the Police Manual, by failing to report to the Uniform Division on January 28,1977, to obtain replacement items for his uniform.

4. When Officer Macchi appeared before Major Brown on January 27, 1977, his hair, sideburns and moustache did not conform with the requirements of Rule 7, Section 7.010(d) of the Police Manual.

5. On May 23, 1977, while a member of the Police Department, Dennis Macchi drove a motor vehicle without the proper state license plates or city sticker in violation of Rule 7, Section 7.010(c) of the Police Manual.

6. Dennis Macchi, while on the Police Department’s sick list, left his home for purposes other than obtaining medical attention without notifying the Department in violation of Rule 7, Section 7.010(g) of the Police Manual.

7. On May 25, 1977, Officer Macchi reported to Major Brown’s office, while off duty, failing to carry his police revolver, as required by Rule 10, Section 10.080 of the Police Manual.

Appellant contends the circuit court erred in affirming the board’s order of dismissal because the findings of fact and orders issued by the board were unsupported by competent and substantial evidence.

Appellant’s contention that charges 1, 2, 3 and 4 are not supported by competent and substantial evidence is without merit. The evidence shows these charges arose from incidents which took place on January 26, 27 and 28, 1977. Offenses 1, 2, 3 and 4 concern appellant’s personal appearance when he met with Major William E. Brown and Captain Virgil L. Kleine. Appellant admitted that when he appeared before Major Brown he was in a dirty uniform, with his tie loosened and his shirt collar unbuttoned. Macchi also testified that when he appeared in Major Brown’s office his hair touched his shirt collar and his moustache was below his lower lip. Captain Kleine testified that on January 27, 1977, he ordered Officer Macchi to report to the Uniform Inspector’s Office on the following day, January 28, so he could receive new equipment. Captain Kleine was later informed and the department records indicated that Officer Macchi did not report to the Uniform Inspector’s Office as ordered.

Appellant’s contention that charges 5, 6 and 7 are not supported by competent and substantial evidence is equally without merit. These charges arose from incidents which took place on May 23, 24, 25 and 26, 1977. The evidence shows that Sergeant Hill saw a car, without the proper state license plates or city sticker, being driven by a man wearing a cowboy hat. Later the sergeant saw appellant near the same car wearing a cowboy hat. Major Brown testified that prior to appellant’s dismissal, Officer Macchi had lost more duty time due to sick leave absences than any other officer on the force. Appellant claimed he became ill during the night of May 23. Therefore Macchi telephoned the Police Department at 6:30 a. m. to report his illness and absence. He also called Dr. Carmody, a Police Department physician, to report he had diarrhea. Apparently because appellant had just added another sick leave absence to his long history of nonattendances and he was suspected of working a job prohibited by Police Department regulations and because appellant was believed to be operating an automobile without valid license plates, Major Brown ordered that appellant’s actions be scrutinized. On May 24, 1977, Major Brown assigned Officer Gary Fuhr and Sergeant Raymond Reynolds to investigate appellant. Officer Fuhr and Sergeant Reynolds were given instructions to personally contact Officer Macchi and order him to appear before Major Brown. Because appellant had called in sick Officer Fuhr and Sergeant Reynolds appeared at appellant’s home, where he was supposed to be recuperating. Upon inquiring the police investigators were told, by appellant’s father, that appellant had left for the evening. Officer Macchi did not inform the Department that he felt well enough to leave his home. The police investigators returned the following morning, May 25, 1977, and ordered Officer Macchi to report to Major Brown’s office immediately. Major Brown testified that Officer Macchi was not carrying his revolver when he saw appellant later that day.

It is true, as appellant asserts, that the findings and orders of the Board of Police Commissioners cannot stand in the absence of substantial evidence to support them. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61 (1949). But it is also true that neither the circuit court nor the court of appeals may substitute its judgment for that of the board. Both the trial and appellate courts are limited to “ascertaining whether the board could have reasonably made its findings and reached its result upon consideration of all the evidence before it and whether the board’s decision was clearly contrary to the overwhelming weight of the evidence.” Johnson v. Priest, 398 S.W.2d 33, 35 (Mo.App.1965). In this case we believe the above evidence substantially supports each of the offenses of which appellant was found guilty. The record indicates appellant admitted every charge against him, except the accusation that he failed to obey Captain Kleine’s order to report to the Uniform Inspector’s Office. Appellant offered no evidence that any of the violations did not occur as alleged. He offered only excuses. Appellant explained: His shirt was unbuttoned at the collar because it was too small. His uniform was dirty because he just got off duty. He did not follow an order because he forgot it. He left his home while on sick leave because a friend needed advice concerning marital problems. He did not have his revolver when reporting to Major Brown because his service revolver was being repaired and his back-up gun was in his locker. These explanations do not mitigate the fact that there was substantial evidence to support the board’s determination.

Appellant’s next contention is that the circuit court erred in affirming the decision and order of the Board of Police Commissioners because the board dismissed appellant for acts and omissions in no way connected with his duties as a police officer. Further, appellant argues that by being dismissed for “acts in his private life” his right of privacy was violated. We do not agree with either of these contentions.

Appellant alleges that “[ojutside several dress code violations . . . appellant was found guilty of no charges which were in any way connected to the performance of his duties as a police officer.” The records show that aside from three dress code violations appellant was adjudged guilty of failure to obey an order from a superior, operating a motor vehicle without the proper license plates, leaving home while on sick leave without notifying the department, and failure to carry a revolver while off duty. There can be no doubt that appellant’s failure to obey Captain Kleine’s order to report to the Uniform Inspector’s Office directly concerns the performance of his duties as a police officer. The Police Manual, Rule 9, Section 9.001(b) requires every police officer to follow the orders of superiors. Without obedience to orders, it would be virtually impossible to maintain discipline and order within the Department. Appellant’s action of driving a motor vehicle without proper license plates and city tax sticker bears on the performance of his duties as a police officer because such an act is inimical to the Police Department’s duty to enforce state statutes and municipal ordinances which require automobiles to be licensed and to bear a city sticker. Further, driving an unlicensed automobile violates the spirit of Rule 7, Section 7.010(c) of the Police Manual which requires:

“Every member of the Department shall, at all times maintain reasonable standards of courtesy in their relations with the public and with other members of the Department and shall conduct themselves in such a manner that no discredit will be brought upon the Department in general or themselves in particular.
Acts contrary to good conduct shall include, but not be limited to, the following:
(c) Any conduct unbecoming to a member of the Department.”

The Police Department and the public at large demand that police officers obey the law. Because “[i]t is difficult ... to maintain mutual and public regard for law enforcement officials . . . ,” Bruns v. Pomerleau, 319 F.Supp. 58, 62 (D.C.Md.1970), appellant’s violation of the state statute requiring automobiles to bear valid license plates and the municipal ordinance requiring ears to display a city tax sticker was certain to discredit the entire City of St. Louis Police Department in general and the appellant in particular. Therefore, the charge that appellant drove an automobile without valid license plates or city sticker did relate to the performance of appellant’s police duties. Rule 7, Section 7.010(q) of the Police Manual prohibits an officer from leaving “his residence or place of confinement while on the sick list except to obtain medical treatment or attention . . .” This rule was promulgated to insure that injured and ailing policemen would recuperate with the smallest possible loss of duty time and to enable the Department to locate its convalescing officers in the event of an emergency or other need. It was also designed to curb abuse of the sick leave system. Appellant’s act of leaving his home while on sick leave was connected with the performance of his duties because it was a violation of a regulation which all police officers are to abide, indicated a lack of respect for the Department policy concerning sick leave absences and hindered the investigators from Major Brown’s office from contacting him. Appellant’s final violation was that he failed to carry a revolver when he reported to Major Brown. All police officers are required to be armed whether on or off duty. Rule 10, Section 10.080 of the Police Manual. Police officers have arrest powers at all times. They are expected to preserve the peace and make arrests when the appropriate situation arises, regardless of whether the officer is on or off duty. It is for the officer’s own safety and is a necessary adjunct to his arrest powers that he is required to be armed at all times.

Appellant’s contention that his right of privacy was violated because he was dismissed from the Police Department for “acts in his private life” is without merit. Appellant does not cite a single ease to support the proposition that the right of privacy encompasses his “right” to perform any of the offenses with which he was charged. Rather, defendant baldly asserts that his right of privacy was violated because he was held responsible for the manner in which he maintained his car and behaved while off duty. We believe that the violations charged against appellant were the proper subject of his employer’s concern because each offense was shown to affect in some degree appellant’s efficiency in the performance of his duties. Bruns v. Pomerleau, 319 F.Supp. 58 (D.C.Md.1970). The offenses appellant was found guilty of were all violations of rules and regulations contained in the Police Manual. These rules and regulations were issued by the Board of Police Commissioners pursuant to the provisions of § 84.140 RSMo. 1969. Appellant had the duty to obey these rules on pain of dismissal. §84.140 RSMo. 1969. The fact that Officer Macchi was not on duty when he committed some of the offenses in question is of no consequence. “He was at all times a member of the Department . . . and was known as such, on and off duty.” Milani v. Miller, 515 S.W.2d 412 (Mo.1974).

Appellant urges that the trial court erred in affirming the findings, decision and order of the Board of Police Commissioners because the board refused to order the Police Department to allow appellant to inspect the Department’s internal files relative to his case. Appellant’s argument is based on the proposition that a hearing of the board is tantamount to a civil proceeding and as such the liberal discovery provisions of the Missouri Supreme Court Rules apply. We do not agree. The Missouri Rules of Civil Procedure, i. e. Rules 41 through 101, “govern all civil actions in the following courts: Supreme Court, Court of Appeals, circuit courts and courts of common pleas.” There is no reference to administrative hearings and we conclude that a Board of Police Commissioners hearing is not governed by Rules 41 through 101. Rather, a hearing of the Board of Police Commissioners to dismiss or otherwise discipline a police officer must be conducted pursuant to the Administrative Procedure Act, Chapter 536 RSMo. 1969. Discovery in administrative hearings is provided for in § 536.067 to 536.090 RSMo. 1969. Only those methods of discovery specifically enumerated are authorized; all other methods of discovery are excluded. National Advertising Company v. State Highway Commission, 549 S.W.2d 536, 541 (Mo.App.1977). There is no provision in the Administrative Procedure Act for discovery of documents by request or motion. Therefore, such a method of discovery is not authorized and the board properly refused appellant’s request to inspect the Police Department’s internal files.

Appellant’s final contention is that the procedure by which he was dismissed was improper. Appellant argues that the complaints against him should have proceeded pursuant to § 7.019. Although this argument is initially attractive it is without merit. The procedure for the administration of discipline in the Police Department is specifically delineated in § 7.011 of the Police Manual. The record indicates that the Department proceeded pursuant to the terms of § 7.011 in dismissing the appellant. No error was committed in proceeding under § 7.011. Further § 7.019 provides that “. . . complaint . . . may be presented to either of the two Personnel Relations Representatives.” (Emphasis added). Thus, even if § 7.019 were applicable to disciplinary proceedings no error was committed because the complaining officer, Captain Virgil Kleine, did not “desire,” as evidenced by his actions, to present the complaint to either of the Personnel Relations Representatives. Appellant also contends that the complaint filed against him was improper because it did not contain the signature of both the complainant and reporting officer. Appellant argues that both the complainant and reporting officer are required to sign the complaint by § 7.008. Appellant’s contention is without merit, § 7.008 does not require the signature of both the complainant and reporting officer. Only the signature of the complainant is required. § 7.008(a). The evidence shows that appellant’s immediate superior, Captain Kleine, signed the complaint. Therefore no error was committed in filing the complaint.

We have considered all of appellant’s contentions and it is apparent that his dismissal should be upheld. It is so ordered.

SNYDER, P. J., and SMITH, J., concur.

      . Board of Police Commissioners, Police Manual, (July, 1970) hereinafter referred to as Police Manual.

      . 7.019 Grievances by Members of Department — Any grievance, complaint or similar problem, regardless of its nature, that a member of the Department desires to present may be presented to either of the two Personnel Relations Representatives, who shall be commissioned officers of the rank of captain, elected by vote of the members of the Department.

      . 7.011 Administration of Discipline — The Board has the power and authority to discipline any member of the Department by dismissal, reduction in rank, forfeiture of pay, or other appropriate action.
      Discipline shall be administered through complaint investigations, reported via administrative report, with recommendation.
      Complaint investigative reports shall be reviewed by the command rank officers in the chain of command superior to the command rank officer who submits the report, through the Inspector of Police and terminating with the Chief of Police.
      When the Chief of Police has formulated his recommendation, but prior to forwarding the recommendation to the Board, the Inspector’s Office shall, in writing, notify the Department member and the citizen of the proposed recommendation.
      If neither party makes objection, the Chief of Police shall present the report and recommendation to the Board for final review and approval. The Board may take whatever action it deems necessary, including ordering of a hearing if it is not satisfied with the recommendation which the Department member has agreed to accept.

      .7.008 Conduct of Investigations — Preliminary Considerations — (a) With the exception of anonymous telephone complaints and unsigned letters, only those citizen complaints reduced to writing on the “Allegation of Employee Misconduct Report” and signed by the complainant will be investigated. In some cases, a Department member or member’s supervisor may be the person making the allegation in writing. Complaints will be provided with a completed copy of this report.
      (b) If a complaint alleges a violation of the criminal law, or if during the internal investigation, evidence is obtained to support a criminal violation, the member under investigation shall be immediately advised of his rights under Miranda. The member shall also be advised that he may be required to answer questions relating to his Departmental duties, under penalty of dismissal or other action, even though there is a criminal aspect to the case. If a statement is obtained after a member has been advised of and waived his rights, it shall be included in both the internal investigation and the criminal offense report. If the member does not waive his rights, he shall be advised that he must answer questions relating to his Departmental duties for purposes of the internal investigation only. A statement obtained when a member does not waive his Miranda rights will not be admissible in the related criminal case.
      (c) A Department member may have counsel present when being questioned with respect to a complaint.
      (d) The Inspector’s Office may require an accused Department member to submit to reasonable physical or psychological tests for purposes of determining fitness to perform duties or whether there has been a violation of Departmental rules. The accused Department member may request such tests.
      (e) At any time during the course of the investigation, the Department member, the complainant, the attorney for either, or any community representative may submit relevant evidence to the Inspector’s Of fice’and such information shall become part of the investigation and shall be investigated.
      (f) If a complainant withdraws his complaint, the investigation shall immediately cease unless independent evidence exists to support the probability of a violation. Reports concerning withdrawn complaints shall include the investigating officer’s opinion, or the complainant’s explanation for withdrawing the complaint.
      (g) If the investigation reveals that the complaint was made maliciously, in bad faith, or with knowledge that the accusation was false, steps shall be taken, whenever possible, to prosecute the complainant for making a false report of a law violation.
      (h) Internal investigations shall proceed without delay, even though there is a criminal aspect to the case and if necessary, an offense report shall be prepared in conjunction with the investigation. If there is a pending criminal investigation, final reports of complaints, or commencement of hearings will be delayed only at the request of the prosecutor. In those cases where criminal action is pending, the Inspector of Police shall advise the appropriate prosecutor, when the final report is completed and ready for submission to the Chief of Police.


source: Caselaw Access Project

author: STEPHAN, Presiding Judge.

license: Public Domain

text:
    Delmar H. YAMNITZ, Plaintiff-Appellant-Respondent, v. POLYTECH, INC., Defendant-Respondent-Appellant.
    Nos. 39564, 39619.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 21, 1979.

      Prudence L. Fink, Daniel M. Buescher, Union, for plaintiff-appellant-respondent.
    Paul H. Schramm, M. Harvey Pines, Schramm, Pines & Marshall, Clayton, for defendant-respondent-appellant.
   STEPHAN, Presiding Judge.

On October 1, 1973, plaintiff Delmar Yamnitz, d/b/a Yamnitz Construction Company, and defendant Polytech, Inc., entered into a written contract whereby plaintiff was to renovate defendant’s fire-damaged plastics factory in Owensville, Missouri. The contract price was $87,500. Work had actually begun on September 27, 1973 and was completed by January 19,1974. In addition to the construction required by the terms of the contract, plaintiff provided a number of “extras” at the direction of defendant’s president, Terrence D. McGowan. We reverse and remand for a new trial.

The primary dispute between the parties centers around the concrete floor poured by plaintiff in a section of the factory designated “concrete area one.” The contract specifications provided that the floor in that area was to be level to within one-eighth of an inch in ten feet, so as to allow air pallets to operate efficiently in the area. Plaintiff was fully aware of the reason for the requirement of the extremely smooth, level finish. As originally graded, however, the floor admittedly did not comply with the specifications. It contained several undulations and a pitch to facilitate drainage. Plaintiff proposed to tear out the floor and re-pour it, but on the two occasions on which he sent employees to the factory to begin that operation, they were denied admittance. After exploring several alternative solutions to the problem, defendant contracted the C. Sansone Concrete Contractors, Inc., to pour a two-inch concrete “cap” over the original floor. The work, for which Sansone was paid $10,360, produced a floor which satisfied defendant’s requirements.

Upon receipt of plaintiff’s final bill for $19,893.88 (which represented the final installment due under the contract plus $3,393.88 for extras), defendant tendered plaintiff a check in the amount of $3,594.17. Defendant contended that one item termed an extra by plaintiff was in fact called for by the contract; as further offsets, defendant listed, inter alia, the cost of repairing the floor in concrete area one and property damage and product loss caused by plaintiff’s employees in the course of the construction in defendant’s plant. The check bore a notation indicating that it constituted full and complete payment to plaintiff for labor and materials provided under the contract; the check was consequently not cashed by plaintiff.

On December 17, 1974, Yamnitz filed a two-count petition in the Gasconade County Circuit Court. Count I, alleging breach of contract, sought the imposition of a mechanic’s lien for damages of $19,393.88 plus interest as the unpaid balance due under the contract and the amount owed for the extras. Count, II sought the recovery in quantum meruit of $3,350 for the construction of a temporary wall and for 119¼ yards of concrete which was furnished by plaintiff and used by Sansone in capping concrete area one. Defendant filed a counterclaim for $20,000, alleging non-compliance with the contract specifications in the pouring of the floor, in installation of the steel substructure and in construction of the roof; defendant also alleged that an underground storage tank had been damaged by plaintiff’s employees. Defendant’s motion to amend its pleadings, which was filed three weeks prior to trial and which alleged additional elements of damage, was denied. Plaintiff’s amended reply, filed after the close of the evidence by leave of the court, alleged that he was prevented by defendant from performing his duties under the contract. The jury returned verdicts for plaintiff on both counts of his petition and against defendant on its counterclaim. By agreement of the parties, the issue of the mechanic’s lien was submitted to the court, which dismissed that portion of the petition on the ground that it failed to state a claim by omitting the “ultimate facts showing the timely filing of the lien statement.” Plaintiff has appealed the order dismissing his claim for a lien. Defendant has appealed the judgments for plaintiff on his petition ($19,383.88 plus interest on Count I and $2,380 plus interest on Count II) and the judgment against defendant on its counterclaim. The appeals have been consolidated.

We agree with defendant’s contention that the use of plaintiff’s verdict-directing instruction on Count I mandates reversal in this case. That instruction, not found in MAI, reads as follows:

“Your verdict must be for Plaintiff Delmar Yamnitz on Count I of his Petition if you believe,
First, that Plaintiff and Defendant entered into the construction contract mentioned in the evidence, and Second, that Plaintiff substantially performed his part of the contract or was prevented from doing so by the actions of defendant or its agents, and Third, that Defendant has failed or refused to pay the entire contract price to Plaintiff, and
Fourth, that Plaintiff was thereby damaged.”

The use of this instruction was erroneous in this case because it submitted the issue of prevention of performance to the jury though such submission was not justified by the evidence adduced at trial. It is undisputed that the floor in at least part of concrete area one, as originally finished, was not in compliance with the strict requirements of the contract; and that plaintiff made an attempt to remedy the situation but was prevented from doing so by defendant. However, defendant contends, and plaintiff denies, that the contract itself gave defendant the option of making its own provisions for repair or replacement of defective work at plaintiff’s expense. The disputed provision of the contract is article 13, the contractor’s warranty, which we set out in part:

“Contractor warrants that he shall use sound engineering and construction principles and practices, in the performance of the Work and that he shall apply to the Work that degree of skill, care, judgment, and supervision necessary to assure that the Work shall be of highest quality, with workmanship proper (sic) fit, suitable and sufficient for the purpose contemplated and in accordance with the best trade practices. Contractor further warrants that the Work shall fulfill the terms of all special guaranties established by the contract and that the Work shall be free from defects due to faulty materials, equipment or workmanship until the expiration of one year from the date of final payment under the Contract or such longer period as may be either provided in the Contract or as may be available to Contractor without additional cost to Po-lytech. In the event that any of the aforesaid warranties are not fulfilled, Contractor guarantees that he shall promptly reimburse Polytech for its cost in making suitable repairs, or replacements or, at Polytech’s option, promptly make suitable repairs or replacements at his own expense.” (Emphasis added.)

It is plaintiff’s contention that the above warranty was to become effective only upon the date of final payment and that it therefore did not operate to give defendant the option defendant claims because defendant failed to tender the balance of the full contract price in what it offered plaintiff as a final payment. We do not agree. In construing a provision of a contract, the courts are to determine the intent of the parties from the language of the contract itself, reading the contract as a whole and attempting to give effect to every part thereof. Celatron, Inc. v. Cavic Engineering Co., 432 S.W.2d 794, 798 (Mo.App.1968); Brackett v. Easton Boot and Shoe Co., 388 S.W.2d 842, 848 (Mo.1965). In that light, we note that the disputed warranty is immediately preceded in the contract by article 12, which provides that: “Polytech may withhold payment to Contractor to such extent as may be necessary to protect Poly-tech from loss on account of: . . .A breach by Contractor of any term, condition or provision of the Contract.” Plaintiff’s construction of article 13 would require defendant to pay the full contract price before it enjoyed the benefit of the warranty against defective workmanship and materials. This would totally negate defendant’s expressly given right under the contract to withhold payment for those same defects. The only way to harmonize articles 12 and 13 is to construe the warranty as fixing only a final, outside time limitation beyond which defendant cannot claim that any unsatisfactory conditions in the rebuilt factory were the result of faulty workmanship or material. There is nothing in the contract to support the contention that the warranty, and defendant’s optional remedy thereunder, did not take effect at the inception of construction. Plaintiff, in article 13, made a number of warranties, only one of which included a time limitation. The warranty to provide workmanship “suitable and sufficient for the purpose contemplated” was unrestricted in any manner. Defendant received the option discussed “[i]n the event that any of the aforesaid warranties (were] not fulfilled.” Under these specific circumstances, it was therefore erroneous to instruct the jury to consider the issue of prevention of performance in connection with Count I of plaintiff’s petition.

Defendant contends that the verdict director was further defective in that it made no mention of the extras, thus permitting the jury to render a verdict for plaintiff on Count I merely by finding that plaintiff had substantially performed the duties imposed by the written contract (or had been prevented from doing so by defendant). We agree with defendant that MAI 26.06 is generally the proper verdict director to be used when, as here, the terms of a bilateral contract are in dispute. However, see Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977). In that case, plaintiff contractor also sought recovery under a written construction contract and an oral agreement for extras, many of which were disputed by defendants; plaintiff submitted a verdict director similar to that used in the instant case. The court, citing Varn Company v. Hamiltonian Federal Savings and Loan Association, 488 S.W.2d 649, 651[3] (Mo.1973), apparently agreed in principal that MAI 26.06 was the proper verdict director in that situation; it held, however, that because of the number of extras disputed by the parties, 26.06 could not be used without violating the directive of Rule 70.-02(a) that instructions “shall not submit to the jury or require findings of detailed evi-dentiary facts.” Forsythe, supra, 106. Because of the complexity of the instant case, we believe that reasoning apposite here. If, in accord with the evidence adduced on retrial, the issue of extras cannot be submitted under MAI 26.06 without requiring such detailed findings, an instruction in the form given would be appropriate. We believe that if the first paragraph of the instruction were modified to indicate that the “contract mentioned in the evidence” referred to the total agreement between the parties, oral as well as written, defendant’s objections to that instruction should be minimized.

We also believe, as defendant contends, that the phrase “substantially performed,” found in the second paragraph of plaintiff’s verdict director, should properly be defined in that instruction on retrial. Technical, legal terms used in instructions must be defined therein. Koehler v. Burlington Northern, Inc., 573 S.W.2d 938, 944 (Mo.App.1978). “Substantially performed” has been held to be such a term of art. Forsythe, supra, 107 — 108.

Defendant next alleges error in the use of plaintiff’s measure-of-damages instruction, a modification of MAI 4.05. Plaintiff’s instruction directed the jury:

“If you find the issues in favor of Plaintiff Delmar Yamnitz upon Count I of his petition, then you must award him such sum as you believe he and Defendant agreed upon as the contract price plus extras together with 6% interest per an-num thereon from April 18, 1974, minus the amount paid on the contract by Defendant.”

Defendant contends that this instruction permitted the jury to return a verdict for plaintiff for the full contract price (without regard to defendant’s cost to repair work not in compliance with the contract) if it found for him on Count I. Defendant claims that MAI 4.01 was the proper instruction in this case.

We do not agree. In the Forsythe case, supra, plaintiff contractor alleged damages similar to those claimed by the instant plaintiff; defendants also counterclaimed for defective construction. The damage instruction provided:

“If you find in favor of Plaintiff, then you must award him such sum as you believe is called for by the Contract, less payment, together with six percent (6%) interest thereon from January 1, 1973, less such sums necessary to correct any defects in Plaintiff’s performance of the Contract.”

The court there found the instruction improper only because of the “tail” submitting the issue of setoff against the contract price due to defects in the construction. For-sythe, supra, 108-109. The court was concerned about the possibility of confusing the jury because the issue of setoff and recoupment was also submitted to the jury in defendant’s counterclaim and the “tail” in plaintiff’s damage instruction made no cross-reference to that counterclaim. Indeed, because the jury was to return only one verdict, there was a distinct possibility of a double setoff. No such problems exist in the instant case. In this case, the jury was to return separate verdicts on plaintiff’s claims and defendant’s counterclaim. Any setoff due to defendant against the contract price would be granted under defendant’s counterclaim.

Contrary to defendant’s reading of Forsythe, the court, citing North County School District R—1 v. Fidelity & Deposit Co., 539 S.W.2d 469, 480 (Mo.App.1976), merely held 4.01 to be appropriate in submitting defendant’s counterclaim to the jury in that case. Forsythe, supra, 109[14]. It is obvious, however, that opposing parties in a breach of contract action such as Forsythe (and the instant case) calculate their damages in different fashion. It therefore does not necessarily follow that the same instruction is appropriate for both contractor and purchaser seeking damages in such a case. A plaintiff contractor, seeking the unpaid balance due under the contract (with or without extras), can generally assess his alleged damages with much more precision than can the counterclaiming defendant purchaser. MAI 4.05, as modified, allows that plaintiff to preserve that clarity in the presentation of the issue of damages to the jury. We therefore believe it a superior instruction to the unfocused 4.01 in this situation. MAI 4.05, as here modified, presented the damage issue simply and impartially in accord with Rule 70.02(e).

Defendant contends that the trial court further erred in excluding certain testimony of Joyce McGowan, wife of Terrence D. McGowan and corporate secretary of defendant Polytech. After plaintiff’s objection to the testimony was sustained on the grounds that it would constitute hearsay evidence, defendant offered to prove that Mrs. McGowan was told by Everett No-wack, one of plaintiff’s foremen on the Po-lytech job, that the floor in concrete area one was one of the worst concrete pouring jobs he had ever seen, and that the floor probably would not have been so bad had it been poured while Yamnitz or he, Nowack, were present on the job site.

The parties are in agreement that declarations or statements of an employee or agent made in the course of the ordinary business of his principal, and made within the scope of the agent’s authority, are admissible against the principal as exceptions to the hearsay rule. See, e. g., State ex rel. State Highway Commission v. Baker, 505 S.W.2d 433, 436 (Mo.App.1974). They are in dispute over the issue of Nowack’s authority to make the statement to Mrs. McGowan. Plaintiff further contends that the statement was inadmissible because it merely constituted the opinion of the declarant.

In regard to the latter argument, we note that the Supreme Court acknowledged in Carpenter v. Davis, 435 S.W.2d 382 (Mo. banc 1968), that an admission of a party opponent is not inadmissible merely because it constitutes an expression of opinion. Id., 384. See also Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 260[4] (Mo.1973); Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 620-621 (1930). Plaintiff cites the cases Wilson v. Miss Hulling’s Cafeterias, Inc., 360 Mo. 559, 229 S.W.2d 556 (1950), and Raftery v. Kansas City Gas Co., 237 Mo.App. 427, 169 S.W.2d 105 (1943), in support of his contention that Nowack’s opinion of the quality of the work was not admissible through Mrs. McGowan’s testimony. We believe, however, that Wilson merely held the opinion testimony there in question inadmissible because it was opinion based on matters beyond the scope of the personal knowledge and understanding of the declarant. Wilson, supra, 229 S.W.2d 561. The proffered opinion of plaintiff’s job foreman, a man of considerable construction experience, cannot be said to be similarly unfounded. The Raftery case, supra, 169 S.W.2d 108, appears to be contra our ruling on this point, but to the extent that it is inconsistent with the Supreme Court’s holding in Carpenter, supra, it should not be followed.

In regard to Nowack’s authority to make the statement in question, we note that the record is rather limited in its description of Nowack’s duties as foreman on the Polytech job. Nowack testified that he oversaw the job in the absence of plaintiff and another Yamnitz employee, Don Soud-ers. Plaintiff described Nowack and Soud-ers as his “main job foremen,” the men who were “primarily responsible for the job” and who would “speak for [him] in [his] absence.” Because the party offering evidence under this exception to the hearsay rule has the burden of proving the fact and scope of the agency of the declarant, State ex rel. State Highway Commission v. Baker, supra, 436, and because the record is void of testimony regarding Yamnitz' presence or absence at the construction site at the time the statement was allegedly made, we believe that the trial court correctly decided this point. Defendant will have an opportunity to correct that defect on retrial. It appears that Nowack’s statement to Mrs. McGowan was made as an attempt to assuage a disgruntled customer. It would therefore further behoove defendant, if on retrial it is able to prove Yamnitz’ absence, to develop whether Nowack’s duties of “overseeing” the job and “speaking for” plaintiff ordinarily included a certain amount of customer relations or whether his duties were strictly limited to supervision of plaintiff’s employees.

Defendant also alleges error in the court’s denial of its motion, filed three weeks before the date of trial, to amend its answer and counterclaim. The amendment to the counterclaim listed, as additional elements of damage, lost profits due to delayed completion of construction, and increased production costs due to the reduced efficiency of defendant’s business operations caused by the non-complying construction; the counterclaim included a prayer for $50,000. Defendant’s motion contended that the new elements of damage were not apparent to it at the time it had filed its last pleading.

The denial of a motion to amend a pleading is a matter within the discretion of the trial court. The court’s ruling in that regard is not to be overturned unless that discretion is clearly abused. Kallenbach v. Varner, 502 S.W.2d 446, 448 (Mo.App.1973). That principle applies to the amendment of the prayer for damages. Conchola v. Kraft, 575 S.W.2d 792, 794 (Mo.App.1978).

In this case, the trial court found that construction was completed on January 19, 1974; defendant’s first amended counterclaim, on which the case was tried, was filed on June 12, 1975; defendant’s motion to amend was not filed until February 28, 1977, three weeks before the trial date. Under these circumstances we cannot find the trial court guilty of a clear abuse of its discretion. On general remand, amendments of pleadings are permissible and motions to amend are directed to the sound discretion of the trial court. Kestner v. Jakobe, 446 S.W.2d 188, 196 (Mo.App.1969). In view of our disposition of this case, defendant will undoubtedly have an opportunity to seek to amend in more timely fashion than it did prior to the first trial.

We have not discussed those of defendant’s points which involve issues not likely to arise on retrial or which have been ruled indirectly by our holdings herein.

On his appeal, plaintiff contends that the court erred in denying his petition for the mechanic’s lien he sought in Count I. (As noted, supra, the issue of the lien was separated from the rest of the suit and was submitted to the court sitting without a jury.) The court held the petition insufficient to state a claim for a mechanic’s lien because it failed “to allege ultimate facts showing the timely filing of the lien statement with the Circuit Clerk.” Section 429.-180, RSMo 1969, provides that the petition for a mechanic’s lien “shall allege the facts necessary for securing a lien” under Chapter 429. One such requirement, found in § 429.080, is that an original contractor such as plaintiff must file a just and true account of his demand within six months after the indebtedness accrued, i. e., the day on which the last work was done. J. R. Meade Co. v. Forward Construction Co., 526 S.W.2d 21, 28 (Mo.App.1975). Plaintiff’s petition alleged that construction was completed “on or about_1974”, that final written demand for payment was made of defendant on April 18, 1974, and that the lien statement was filed with the clerk of the Gasconade County Circuit Court on June 21, 1974.

Because our statutes creating mechanic’s liens are remedial in nature, they are to be construed as favorably to materialmen as their terms permit. R. L. Sweet Lumber Co. v. E. L. Lane, Inc., 513 5.W.2d 365, 370-371 (Mo. banc 1974). In determining whether a petition states a claim, that petition is to be favorably construed and given “the benefit of every reasonable and fair intendment.” Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 629-630 (Mo.App.1975). In light of the above principles, we believe that plaintiff’s petition by necessary implication stated facts sufficient to satisfy § 429.180. Plaintiff apparently left the exact date of completion blank on the petition due to some uncertainty on the question, intending but failing to supply it at a later time. However, any date in 1974 before June 21, 1974, the date on which plaintiff filed the lien, necessarily was within six months of that filing date, as required by § 429.080.

Moreover, as indicated, amendments of pleadings are permissible on remand, Kestner v. Jakobe, supra, and we perceive no prejudice to defendant’s rights to permit plaintiff to insert in the petition the day and month on which it alleges the indebtedness accrued.

Reversed and remanded for retrial consistent with this opinion.

KELLY and STEWART, JJ., concur.

      . Because cross-appeals have been filed in this suit, we will refer to the parties as they appeared in the court below.

      . McGowan apparently rejected the idea of tearing out the original floor because he felt it would be too time-consuming. Plaintiff has not challenged the reasonableness of defendant’s choice of remedy.

      . “Your verdict must be for Plaintiff, on Plaintiffs claim, if you believe:
      First: Plaintiff, in good faith, substantially performed the work required of him by the Contract mentioned in evidence, and Second: Defendants have not paid the amount required by said Contract, unless you believe that Plaintiff is not entitled to recover by reason of Instruction No. 4.

      The term ‘substantially performed’ as is used in this Instruction, means that the construction had progressed to the point that the house could be put to the use for which it was intended.” Id., 105.

      . “MAI 4.01 Measure of Damages — Personal and Property
      If you find the issues in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence.”

      . See, however, this court’s discussion of the use of MAI 4.02 rather than 4.01 in a similar contract action in Sands v. R. G. McKelvey Buiiding Co., 571 S.W.2d 726, 730-732 (Mo.App.1978).

      . The petition, as reproduced in the transcript approved by counsel for both parties, actually contains an allegation that the work was finished on or about January 19, 1974. However, from a motion to dismiss the petition to enforce the mechanic’s lien and arguments presented thereon immediately prior to trial as well as the trial court’s refusal to permit plaintiff to amend, we conclude that the court reporter erroneously included the date in the petition. The matter was so treated in the briefs and is so treated herein.

      . We note that, although the court found the final date of construction to be January 19, 1974, considerable difference of opinion on that point is evidenced in the transcript.


author: CLEMENS, Senior Judge.

text:
    Wanda SMITH, Respondent, v. Charles NORMAN and Ruth Norman, Appellants.
    No. 40377.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.

      Alan J. Baker, Leyhe, Meyer, Leyhe, Baker & Lobel, Clayton, for appellants.
    Kathleen A. Creanza, Husch, Eppenber-ger, Donohue, Elson & Cornfeld, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Plaintiff-landlord sued her former tenant to recover damages for injuries done to her leased premises. The jury awarded plaintiff $3,500 and defendant has appealed the ensuing judgment. The core issue on appeal is the measure of plaintiff’s damages— the cost of repairs or the diminution of the building’s value.

Defendant had occupied an eight-room apartment in plaintiff’s six-unit building. The lease required him to surrender the apartment in good order and repair, ordinary wear excepted. Plaintiff’s petition alleged and her evidence showed that when defendant vacated the apartment it was in disarray and plaintiff was compelled to furnish materials to have it renovated by several repairmen at a cost of $4,800. There was no evidence of overall before-and-after value, and defendant contends that without this plaintiff failed to make a submissible case.

Defendant’s main point on appeal is that the court erred in admitting plaintiff’s evidence as to the cost of repairs without also having shown just how much defendant’s use diminished the building’s overall value. No such evidentiary objection was raised at trial. However, the argument stressed in defendant’s appellate brief points to the absence of opinion evidence to show overall diminution in value. In her brief plaintiff responds to this argument and we will consider that as the issue on this appeal.

Cases cited hereinafter show two parallel methods for measuring the amount of damages for injury to real property. In sum, where the injury is extensive or permanent the measure of damages is the reduction in the overall value of the property as a whole; in contrast, where the injury is slight — when compared with the overall size and value of the realty — and the injury can readily be remedied by repair, then the measure of damages is the expense of restoration. The latter method is not inconsistent with the former. This, because in the case of slight injury the cost of repair logically reflects the amount the property was reduced in value. See 25 C.J.S. Damages §§ 72, 84a and 85a; and 22 Am.Jur.2d, §§ 132 and 135.

To clarify the apparent inconsistencies in Missouri cases — often dealing with extensive permanent injuries, sometimes with minor, temporary injuries, and frequently with both — we cite the following cases to show there was no error here in submitting the case only on the basis of cost of restoration.

The early case of Graves v. K.C., P. & G.R.R. Co., 69 Mo.App. 574 (1897), concerned damages claimed both for flooding land and for destroying fences. The decision upholds two methods of measuring the damage, holding:

“For injury to the land itself, that is, the washing of the soil, the measure of damage is the difference in the value of the land before and after the flood by reason of this particular injury. As to the houses and fences their actual value is the measure of damages. Such value is measured by the sum which would, properly expended, restore the premises to their former condition.”

Following Graves, the court in Wiggins v. St. Louis, M. & S.E. Ry. Co., 119 Mo.App. 492, 95 S.W. 311[1] (1906), also dealt with injuries both to fences and a permanent meadow. The court condemned a “reasonable value” damage instruction as to the permanent injury to the meadow, but upheld it as to the fence injury, holding “the actual value of the fence was the measure of the recovery therefor, and such value may be ascertained by the time and money properly expended to restore the fence to its former condition.”

Next, Adam v. Chicago, B. & Q. Ry. Co., 122 S.W. 1136[1] (Mo.App.1909) was a case seeking damages for both temporary and permanent damages. The court noted that Missouri decisions were not harmonious but held: “Where the destruction of the thing includes but a temporary injury to the land, and the thing may be replaced in a comparatively brief period, the true measure of damages is the cost of replacing it and the rental value of the land until it is replaced; but where the destruction of the thing inflicts more than a temporary injury to the land, or the replacement would be impossible or tedious and uncertain both in cost and result, the criterion is the damage inflicted on the market value of the land.” Adam was followed in DeSalme v. Union Electric Light & Power Co., 232 Mo.App. 245, 102 S.W.2d 779[2] (1937), where Judge Bennick distinguished between injuries to property which are temporary and can be repaired, and injuries that are permanent and irreparable.

The same principle was followed in Southside Realty Co. v. St. Louis & S.F.R. Co., 154 Mo.App. 364, 134 S.W. 1034[11] (1911) where the court dealt with short-term flood injuries to houses and fences, and ruled: “Such value is measured by the sum which would be properly expended to restore the premises to their former condition.”

The above line of cases was summarized in Dimick v. Noonan, 242 S.W.2d 599[2] (Mo.App.1951):

“The measure of damages for injury to real property is not invariable, the amount to be awarded being such sum as will compensate the injured owner for the detriment proximately caused thereby. Ordinarily, the difference between the fair value of the property immediately before and immediately after the injury will be taken as the measure, at least where the injury is permanent, or where the damage cannot be well expressed in specific items of injury, although it affects in a substantial degree the value of the entire property as a unit. .
“Where the injury to real property is merely temporary, or where the property can be restored to its original condition, the measure of damages may be, or should include, the cost of restoration, as [to] where the injury is susceptible of remedy at a moderate expense and the cost of restoration * * * is less than the diminution in the value of the property.”

In DeArmon v. City of St. Louis, 525 S.W.2d 795[7-9] (Mo.App.1975), the court recognized the distinction in determining damage to a building (1) on a cost-of-repair basis when injury is only to a small part of the building and was insignificant as compared to the value of the building as a whole, and (2) on a diminution of value basis where the injury was extensive and permanent.

Defendant acknowledges that “diminution in value is not the sole measure of damages,” citing Misch v. C.B. Contracting Company, 394 S.W.2d 98[6] (Mo.App.1965), holding: “The cost of repairs or restoration is competent evidence to be considered in determining the damage suffered . and is sometimes the predominant criterion.”

Defendant also cites Helton v. City of St. Joseph, 340 S.W.2d 198 (Mo.App.1960), a case remarkably comparable to ours. Instead of aiding defendant, that case refutes his appellate contention. In Helton plaintiff landlords sued and had judgment against defendant tenant for $800 to repair damaged doors, plaster and plumbing done to the premises during the lease term. There, as here, that evidence came in without objection and there was no evidence of before-and-after values. The court held that this evidence did, in effect, establish “the difference between the value of the property before and after the damage was suffered.” In explanation, the court added: “While the general rule is that the measure of damages in a case of this kind is the difference between the market value of the realty immediately prior to being damaged and immediately thereafter yet, where the damage is small in comparison to the total value of the property and is readily ascertainable and where the verdict is not excessive, the amount of such damage may be arrived at by determining the cost necessary to restore the property to its former condition.”

Reverting to the evidence before the trial court we note that plaintiff’s evidence was that the injuries to the apartment occupied by defendant was temporary and had readily been repaired. Considering that and the fact defendant’s apartment was but one of the six units in the building, it would be unrealistic to require plaintiff to introduce further evidence of the before- and-after value of plaintiff’s six-unit building. We hold the trial court did not — as defendant complains — err in submitting the case on plaintiff’s evidence as to her cost of repair.

Defendant’s second assignment of error is that the evidence did not support the measure of his damage instruction, Number 7, MAI 4.02 modified, submitting the issue of reduction in market value. This was defendant’s own instruction, not plaintiff’s. We deny the point on authority of Helton [1, 2], holding: “A party may not complain of a lack of evidence to support the giving of an instruction which he himself [has] requested.”

Defendant’s third point is that there was no evidence he caused any of the injuries. To the contrary, two witnesses testified the apartment was in good condition at the beginning of the lease and in need of extensive repairs at the end. This warranted the jury’s finding for plaintiff.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Michael C. SANSONE and Helen M. Sansone, Appellants, v. Andrew SANSONE and West-Good, Inc., a Missouri Corporation, Respondents.
    No. 40371.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 21, 1979.

      Merle L. Silverstein, Michael A. Marken-son, Rosenblum, Goldenhersh, Silverstein & Zafft, St. Louis, for appellants.
    James L. Nouss, Donald R. Carmody, Sumner, Hanlon, Sumner, MacDonald & Nouss, P. C., Clayton, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Plaintiffs have appealed from an adverse judgment in their suit to set aside a sale of 160 shares of the common stock of West-Good, Inc. which had been pledged as security for two notes which were not paid and as to which recovery was barred by the ten-year statute of limitations. We affirm.

On December 1,1962 appellants executed a note in the amount of $16,500.00 payable on demand to Andrew Sansone. On February 15,1963, they executed a second note in the amount of $2,228.48 also payable on demand to Andrew Sansone. Each note was secured by a “Collateral Pledge Agreement” whereby appellants delivered to Andrew Sansone 160 shares of the common stock of West-Good, Inc., as security for the two notes. The agreements provided that in the event the notes were not paid “Andrew Sansone may, in his sole discretion, without notice to the [makers of the notes] sell all or any part of said stock at public or private sale to such purchaser, including himself, at such price, in such manner, and upon such terms as he may in his sole discretion elect, and shall apply the proceeds of such sale to the balance due on such notes or such liability.”

Neither note was paid, and on January 9, 1975, Andrew Sansone conducted a sale to himself of the pledged shares of stock and caused the transfer to be recorded on the books of West-Good, Inc.

It is admitted by all parties that at the time of the sale of the shares of stock pursuant to the pledge agreements an action on the notes was barred by § 516.110 RSMo 1978.

Although there were other issues in the trial court, the only issue on this appeal is the contention that the trial court erred in refusing to set aside the transfer of the shares of stock to Andrew Sansone because the statute of limitations barred recovery on the notes and therefore the sale of the shares of stock was void and of no effect. Appellants rely on the first clause of § 516.150 RSMo 1978 which is as follows:

“No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statutes of limitation in this state; * * *.”

The essential question is: does the above language of § 516.150 include the security transaction utilized in this case? If so, the sale of the shares of stock was not authorized because, as stated in Oehler v. Philpott, 263 S.W.2d 201, 203 (Mo.1953), “[t]he purpose of [the first clause of § 516.150] was ‘to make the mortgage [or deed of trust] and note run concurrently, and when the note was barred the right to foreclose the mortgage [or deed of trust] was likewise barred.’ ”

The statute of limitation does not extinguish the debt but only bars the remedy. Thompson v. McCune, 333 Mo. 753, 63 S.W.2d 41 (1933). The indebtedness continues, and after action in the courts on the two notes was barred by reason of § 516.110 RSMo 1978, appellants were still indebted to Andrew Sansone for the amount of the notes. Appellants argue that “the term ‘mortgage’ as used in Section 516.150 includes the security agreements” utilized in this case, and further that it includes all “security agreements dealing with personal property.”

In Williams v. Rorer, 7 Mo. 556, 558 (1842), cited and relied on by appellants, it was stated: “There is a distinction between a mortgage and a pledge, which is well ascertained both in the English and American law. A mortgage of goods differs from a pledge in this, that the former is a conveyance of title upon condition, and it becomes an absolute interest at law, if not redeemed by the prescribed time; and it may be valid without delivery. A pledge, or pawn, is a deposit of goods, with a right of redemption, on prescribed conditions. Delivery accompanies a pledge, and is essential to its existence. Only a special property passes to the pledgee; while the general property remains with the pledger.” In that case the plaintiff “executed and delivered to [the defendant] an absolute bill of sale” for a mare, and the defendant delivered to plaintiff an instrument reciting that plaintiff “may redeem that * * * mare, by refunding me one hundred dollars, any time between this and the first day of June, and if not, she is my property in full.” It was held: “The bill of sale * * * is absolute on its face and conveys the general property to [defendant]; there is nothing in it or the subsequent agreement, which shows that [plaintiff] intended merely a delivery of the mare to be kept for security of a debt. If the general property passed, then the transaction is a mortgage, and not a pledge.” See also Jones, Chattel Mortgages and Conditional Sales, Bowers Edition, § 4.

In Restatement of the Law, Security, § 1, a pledge is defined as “a security interest in a chattel or in an intangible represented by an indispensable instrument, the interest being created by a bailment for the purpose of securing the payment of a debt or the performance of some other duty.” In the Comment following this section it is stated that “The fundamental idea of the pledge is possession by the pledgee. If the creditor’s security interest depends upon possession obtained and held primarily for security, he has a pledge. If his security interest depends primarily upon title or is some other form of non-possessory charge, his security interest may be valid, but it is something other than a pledge.” See also Hodge v. Truax, 184 Wash. 360, 51 P.2d 357, 103 A.L.R. 420 (1935).

The Collateral Pledge Agreement in this case provided that each appellant “assigns, pledges, hypothecates and delivers to Andrew Sansone, * * * [a total of 160] shares of the common stock of West-Good, Inc., a Missouri corporation, together with all dividends thereon of any nature, and all income, rights and profits therefrom, as collateral security” for the payment of the notes executed by appellants. It is clear that each security agreement constituted a pledge as distinguished from a mortgage. See 14 C.J.S. Chattel Mortgages § 4, and 68 Am.Jur.2d Secured Transactions § 51.

It is the general rule, as stated in Restatement of the Law, Security, § 47, that unless otherwise provided by statute “A pledge is not terminated by the running of the statute of limitations against the claim secured by the pledge, * * See also Hodge v. Truax, supra, Danielson v. Line, 135 Fla. 585, 185 So. 332 (1938); In re Washburn’s Will, 21 N.Y.S.2d 469 (Sur.1940); Weems v. Carter, 30 F.2d 202 (4th Cir. 1929); and 53 C.J.S. Limitation of Actions § 10; 31 Am.Jur.2d Limitation of Actions § 25; Annotations, 103 A.L.R. 430 and 137 A.L.R. 928.

As noted, at common law there was a definite distinction between a mortgage and a pledge, and in construing § 516.150 RSMo 1978, to ascertain the intention of the legislature we must presume that it was aware of that distinction. Person v. Scullin Steel Company, 523 S.W.2d 801 (Mo. banc 1975). Therefore, when the legislature enacted the first clause of § 516.150 which made reference only to mortgages and deeds of trust it did not provide and apparently did not intend that the provisions of that statute apply to pledges. This was the ruling in New York Life Ins. Co. v. Kansas City Nat. Bank, 121 Mo.App. 479, 97 S.W. 195, 197 (1906), the only Missouri case we have found directly ruling this issue. In that case a person indebted to a bank pledged two insurance policies on his life as security for the debt. After his death claims by several persons were made for the proceeds. As to the issue now before us the court stated: “And it is further contended, as the note is barred by statute of limitations, so is the assignment. Upon this question we are referred to section 4276, Rev.St. 1899 [now the first clause of § 516.150 RSMo 1978]. But, as that statute applies to mortgages and deeds of trust only, it does not affect the question here.” (Emphasis added.)

We have found only one case from another jurisdiction in which the court considered whether a provision such as that contained in the first clause of § 516.150 applies to a pledge. In Hill v. Bush, 192 Ark. 181, 90 S.W.2d 490, 493-4 (1936), a life insurance policy was pledged as security for the payment of a debt. The court stated that “Where a debt is secured by a pledge, as in the present case, the running of the statute of limitations destroys, of course, the right of recovery on the debt, but has no effect on the right of the pledgee to retain the property until the debt is paid and to enforce his claim against the property.” Reference was then made to an Arkansas statute which, as paraphrased by the court, provided that “when the debt is barred, this shall be a sufficient defense in a suit to foreclose or enforce mortgages or deeds of trust.” The court held: “But this has no application where property is pledged and delivered to the pledgee. It [the statute] does not mention property pledged in this manner.”

The provisions of the first clause of § 516.150 are not applicable to the collateral pledge agreements in this case, and respondent’s right to enforce the pledge agreements was not affected for the reason that an action on the notes secured by the pledge agreements was barred by limitations.

The judgment is affirmed.

DOWD, P. J., and SATZ, J., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Carl LOMACK and Darryl Lockett, Appellants.
    Nos. 39516, 39550.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 21, 1979.

      John D. Ashcroft, Atty. Gen., Paul R. Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David T. Weir, St. Louis, for respondent.
    Fredman, Watkins & Fredman, Brun-trager & Bruntrager, Raymond A. Brun-trager, Jr., St. Louis, for appellant.
   SMITH, Judge.

Defendants, jointly charged with robbery and jointly tried, appeal their convictions and sentences of five years by the jury.

On November 2, 1976, in the early morning Raymond Bridges and defendants and their friend Kim Julian were customers in a White Castle restaurant at Natural Bridge and Kingshighway in the City of St. Louis. Upon leaving the restaurant Bridges was assaulted by defendant Lomack near the White Castle building. The attack was with Lomack’s hands. After falling to the ground, Bridges was kicked by Lockett and Julian. Bridges stated that Lomack and Lockett took from him his watch and ring. The assault was witnessed by a police officer across the street, but the officer did not observe anything taken from Bridges. The defendants and Julian then entered Lo-mack’s car and left the White Castle parking lot. They were pulled over by the police officer about a block and one-half from the White Castle, and then the police officer and the three suspects returned to the White Castle in their cars. Bridges immediately identified them and stated that they had stolen his watch and ring. All three suspects were thoroughly searched, their car was searched and the streets where they had driven were searched. No watch or ring was found. Bridges had three prior felony convictions for burglary or stealing.

Defendants and Julian testified for the defense. All admitted that an assault and beating had taken place but denied any kicking. All attributed the beating to Lo-mack and said it occurred because Bridges, whose car had been stolen while he was in the White Castle, was trying to get into Lomack’s car with them. Defendants testified that Bridges had suggested that he and defendants have a homosexual liaison. All three defense witnesses denied that anything was taken from Bridges.

On appeal defendants raise six claims of error, only three of which it is necessary to discuss.

The first is a claim that the trial court committed “plain error” by failing to instruct on the offense of assault in some form. Defendants contend that assault is a lesser included offense of robbery and that the evidence required an instruction thereon. The matter was not raised at trial nor in the motion for new trial — hence the plain error claim. Rule 27.20. In State v. Amsden, 299 S.W.2d 498 (Mo.1957) the following definition of what constitutes a lesser included offense is given:

“The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.” l.c. 504.

Defendants were charged with taking the property by putting Bridges “in fear of an immediate injury to his person, and then and there feloniously and by force and violence to the person of Raymond Bridges . .” (Emphasis supplied) The verdict-directing instruction hypothesized only “violence to his person” as the means of taking.

Defendants contend that they were entitled to an instruction on assault with intent to kill with malice aforethought (Sec. 559.-180 R.S.Mo.1969) or assault without malice aforethought (Sec. 559.190 R.S.Mo.1969) or common assault (Sec. 559.220 R.S.Mo.1969) or some combination thereof.

Sec. 559.180 is a specific intent crime requiring that the assault be made with an intent to kill, maim, ravish, rob, burglarize, commit some other felony, or in resisting execution of legal process. Sec. 559.190 is also a specific intent crime requiring an intent to kill, do great bodily harm, rob, rape, burglarize or commit another felony. Turning to the Amsden definition set out above, it is clear that defendants were not specifically or by implication charged with any intent required by these two statutes except an intent to rob or steal from the person. The intent necessary to support an assault conviction under these two statutes (except an intent to rob or steal) introduces an element not charged in the information against the defendants. They are not, therefore, lesser included offenses under the Amsden definition.

The elements of intent to rob or steal from the person are included within the charge of robbery. But there is no eviden-tiary support that any such unconsummated intent existed. Both defendants and Julian denied any attempt or intent to rob or steal. The only evidence was that either the robbery was consummated or that it was not even attempted or contemplated. There was no error in failing to instruct on the two higher grades of assault.

Common assault is not a specific intent offense. It requires only that defendant “assault or beat or wound another.” Violence to the person—one of the alternative methods by which robbery can be effectuated, and the method by which these defendants were charged—would establish an assault or a beating or a wounding. See State v. Higgins, 252 S.W.2d 641 (Mo.App.1952) l.c. 646 for the description of common assault. All of the elements of common assault are therefore included in the elements of the robbery charged and it is a lesser included offense of that charge which must be instructed upon if supported by evidence. MAI-CR 2.05; Missouri Bar Committee Comments on MAI-CR, Richardson, Lesser Graded or Included Offenses, VII, B. p. 13.

There is such evidence here. Defendants denied that they robbed the victim or that they attempted or intended to do so. They did admit that they beat him. If defendants’ evidence was believed, the jury could have found defendants guilty of common assault but not guilty of robbery. The instruction should have been given. See State v. Washington, 357 S.W.2d 92 (Mo.1962) [6-8], State v. Dowe, 432 S.W.2d 272 (Mo.1968), relied on by the State, presents a confusing factual situation which led the court to conclude that defendant could only have been guilty of robbery or nothing. That is not the situation here.

The Supreme Court has held that failure to instruct on a lesser included offense or a defense is not per se plain error. Each case must be examined on a case by case basis on its own facts. State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969) [2]. We find here that the failure to so instruct resulted in manifest injustice. The evidence of the robbery was far from overwhelming. No loot was found despite an almost immediate search of defendants, their car and the route they traversed. This does not mean the loot was not disposed of, but it casts doubt on whether any property was taken. The evidence of stealing came solely from the victim whose credibility had been attacked upon the basis of prior felony convictions. There were some minor discrepancies in the victim’s testimony and the report he gave the police officer. The defendants admitted they assaulted the victim and were guilty of that at least. The jury deliberated sufficiently long that the trial court felt justified in giving it the “hammer instruction”, MAI-CR 1.10. The punishment assessed was the minimum. In view of these facts, we hold it was plain error not to instruct the jury on common assault. See State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973).

Defendants also contend that the court erred in failing to instruct on self-defense. There is no evidence to support such an instruction.

Defendants also complain that the trial court erred in deleting the third sentence of the first paragraph of MAI—CR 2.72. That sentence reads: “Each of the offenses charged and the evidence and law applicable to it should be considered separately.” The trial court at the instruction conference expressed its belief that the sentence was confusing as only one offense was charged in this single count joint information. We appreciate the logic of the trial court’s thinking and have our own serious reservations that the language used conveys to a layman the meaning intended in this type of case. It might be advisable for the Committee on Instructions or the Supreme Court to consider whether the sentence should be modified, or bracketed for use in multiple count cases only. Until, however, the instruction as approved by the Supreme Court is changed, it is mandatory that it be given as prescribed and the court erred in failing to do so. We need not determine whether the deletion was prejudicial in view of our holding reversing for new trial.

Defendants’ remaining points are unlikely to arise on new trial and we need not consider them.

Judgments reversed and cause remanded.

WEIER, C. J., and SNYDER, P. J., concur.

      . We need not determine the effect or applicability of Sec. 556.160 R.S.Mo.1969 in view of our conclusion that no attempt to rob or steal is shown by the evidence.


author: JAMES D. CLEMENS, Senior Judge.

text:
    Dennis Jerome BALDWIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39833.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Robert C. Babione, Public Defender, Mary E. Dockery, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Marion G. Eisen, Asst. Circuit Atty., St. Louis, for respondent.
   JAMES D. CLEMENS, Senior Judge.

Movant Dennis J. Baldwin (hereafter “defendant”) has appealed the summary denial of his Rule 27.26 motion for post-conviction relief. We affirm. He now contends the trial court erred by denying his motion without granting him an evidentia-ry hearing and appointing counsel.

Defendant, as a second offender, was tried for burglary and a hung jury was declared. He then changed his plea to guilty and the court sentenced him to four years’ imprisonment. (At all times defendant had been free on bond and represented by private counsel.) After conviction defendant filed his pro se motion for post-conviction relief, the subject of this appeal.

Defendant’s alleged basis for relief is that his guilty plea was involuntary because he was mentally ill and under the influence of medication. We find the guilty plea record refutes these allegations and warranted denial of his Rule 27.26 motion.

We summarize the guilty plea record, with emphasis on defendant’s present contention that his plea was involuntary because of medication and mental illness. The record shows defendant was a college student, was employed as a teachers’ aide, and formerly was an infantry sergeant. He had fully discussed his plea with retained counsel, with whose services he was satisfied. The court explained the defendant’s various trial rights, all of which he acknowledged, and stated he was not nor had he been under the effect of alcohol or drugs. He declined the court’s invitation to question his counsel and the court about the guilty plea and possible punishment. The court’s questioning was thorough and unhurried; it gave defendant and his counsel full opportunity to assert the belated complaints of mental illness and influence of medication. In sum, the record showed defendant to be intelligent, articulate and keenly responsive to the court’s questioning.

Defendant’s present complaints relate to conditions of which he was aware when he pleaded guilty and therefore are ineffective now. Weaver v. State, 520 S.W.2d 640,1. c. 643 (Mo.App.1975). The record shows defendant’s guilty plea was made voluntarily and understandably and this warranted the summary denial of his motion. Colbert v. State, 486 S.W.2d 219[2] (Mo.1972); Pauley v. State, 487 S.W.2d 565[1-3] (Mo.1972).

Judgment affirmed.

REINHARD, P. J., and GUNN, and CRIST, JJ., concur.


author: HARBISON, Justice.

text:
    Bob TOLLETT, Commissioner of the Tennessee Department of Revenue, Appellant-Defendant, v. FRANKLIN EQUITIES, INC., Appellee-Plaintiff.
    Supreme Court of Tennessee.
    July 9, 1979.
    Rehearing Denied Sept. 17, 1979.
    David S. Weed, Asst. Atty. Gen., for appellant-defendant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
    H. Wynne James, III, Knoxville, for ap-pellee-plaintiff.
    Milton P. Rice, Nashville, amicus curiae brief for Tennessee Taxpayers’ Association and Association of Tennessee Life Ins. Companies.
   OPINION

HARBISON, Justice.

This action was instituted by a taxpayer to recover corporate franchise taxes paid, under protest. It contended that intangible assets of the corporation should not be included in the statutory franchise tax base. The trial judge allowed recovery and the Commissioner of Revenue has appealed. In our opinion the provisions of the applicable statutes support the contentions of the appellant.

Both parties moved for summary judgment in the trial court. The record consists only of brief pleadings and two very short affidavits. Neither of the parties insists that there is any disputed issue of material fact. Therefore, we will dispose of the case as presenting only a question of law.

The taxpayer, plaintiff below and appel-lee here, is a Georgia corporation, qualified to do business in Tennessee. The case involves disputed franchise taxes for the years 1972 through 1976, all prior to the effective date of revisions of the Franchise Tax Law made in that year, 1976 Tenn.Pub. Acts, ch. 537.

The taxpayer manages a motel in Blount County, Tennessee under a contract with the owner. The management contract is not in the record, nor is there any evidence concerning the exact nature of the taxpayer’s activities, the services rendered, compensation paid, or the like. The parties concede that the management of the motel was the only corporate business or activity conducted by appellee in this state during the years involved.

The motel which was managed by the taxpayer was owned by a limited partnership. Taxpayer was the general partner of that entity and owned fifty-one percent interest in the partnership. Again, the partnership documents have not been filed in evidence. An affidavit of an officer of the corporate taxpayer states that the corporation owns no real or tangible personal property within the state and that the only asset owned by the taxpayer in Tennessee is its fifty-one percent interest in the limited partnership. The affidavit further states that all real and personal property operated or utilized by the motel itself is owned by that partnership.

The Commissioner insists that the value of the taxpayer’s interest in the motel properties should have been included in computing its franchise tax base. Neither the tax returns nor any computations of value have been included in the record, there apparently being no dispute between the parties as to the amount involved.

The parties recognize that the corporate franchise tax is not an ad valorem property tax but is a tax levied upon the privilege of engaging in business in corporate form in this state. See Crown Enterprises, Inc. v. Woods, 557 S.W.2d 491 (Tenn.1977). It is levied upon the net worth or capital of the corporation. Memphis Peabody Corp. v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1962).

Following an amendment in 1963, and at all times during the period involved in this case, T.C.A. § 67 — 2909 provided, insofar as here pertinent:

“The measure of the tax hereby imposed shall in no case be less than the actual value of property owned, or property used, in Tennessee.”

As stated in the Crown Enterprises case, supra:

“This provides the method for determining the minimum net worth of the capital of the corporation. . . . Thus, the minimum measure of the corporate franchise tax is ‘the actual value of the property owned, or property used in Tennessee.’ ” 557 S.W.2d at 492.

Prior to 1963, the statute was worded entirely differently and read as follows:

“The measure of the tax hereby imposed shall in no case be less than the value of the real and tangible personal property owned or used by such corporation in this state as shown by the books and records of such corporation at the close of its last calendar or fiscal year preceding the making of the sworn report hereinafter required, excepting books with respect to investment costs kept pursuant to regulations of the interstate commerce commission.”

The language underscored in the foregoing quotation was deleted when the statute was re-written, 1963 Tenn.Pub.Aets, ch. 361, §3.

The revision in the statute followed immediately the decision of this Court in the case of Memphis Peabody Corp. v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1963), in which it was held that the value of property leased by a corporate taxpayer was not required to be included in the minimum measure of the franchise tax. The 1963 amendment provided for the inclusion of leased or rented property and contained a formula for its valuation. The amendment, however, also deleted the words “real and tangible personal” preceding the words “property owned or used.”

The taxpayer relies upon two opinions of the State Attorney General rendered several years ago that the only change effected by the 1963 amendment was to include leased or rented property. This, however, is not all that the amendment provided. The Attorney General gave opinions that intangible property owned by taxpayers was not affected by the 1963 amendment. In our opinion, this conclusion was not justified from the revisions which were made in the statutory language. It is true that the word “tangible” was retained in the caption of the code section which the 1963 amendment revised, and indeed that word is found in the caption as quoted in the 1963 act. In the text of the revised statute itself, however, all references to real and tangible personal property were omitted, and the generic term “property” was retained without any qualification or modifying language.

It is around this revision in the statute that the present controversy revolves. The taxpayer insists that it owned no real property and no tangible personal property in Tennessee. It contends that its interest in the partnership, while a property right, is intangible in nature and is not subject to inclusion under the statute.

The first part of this contention is consistent with basic concepts of partnership law. The Uniform Partnership Act itself, T.C.A. § 61-124(1), provides:

“A partner is coowner with his partners of specific partnership property holding as a tenant in partnership.”

The incidents of this tenancy are defined and described in the following paragraph, T.C.A. § 61-124(2). A partner’s general interest in the partnership itself is defined in T.C.A. § 61-125 as follows:

“A partner’s interest in the partnership is his share of the profits and surplus and the same is personal property.”

For further delineation of the interest of a partner in partnership assets, see United States v. Worley, 213 F.2d 509 (6th Cir. 1954); Cultra v. Cultra, 188 Tenn. 506, 221 S.W.2d 533 (1949).

The Commissioner does not disagree with these settled principles of partnership law. He insists, however, that in the present case, through some sort of imputation or “attribution,” outright ownership of the real estate and tangible personal property of the partnership should be ascribed to the corporate taxpayer. Neither statutory authority nor any evidentiary basis for this contention has been demonstrated, and that aspect of appellant’s assignment of error is overruled.

Nevertheless, the taxpayer’s partnership interest is “property,” albeit intangible, and there is nothing in the statute since its 1963 revision which excludes valuable intangible assets or property rights such as this from the franchise tax measure. The value of stock held in any other taxpaying corporation is, and long has been, deductible from the measure of the franchise tax. See T.C.A. § 67—2906. No other exemption of intangible property, insofar as pertinent to this case, has been cited or referred to by the parties.

For this reason the assignment of error of appellant is sustained. On the issue developed in the record appellant was entitled to summary judgment. The trial court erred in ruling otherwise. Its judgment is reversed and the suit is dismissed at the cost of appellee.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.

OPINION ON PETITION TO REHEAR

Appellee has filed a petition for rehearing. A brief amicus curiae has been filed on behalf of the Tennessee Taxpayers’ Association and the Association of Tennessee Life Insurance Companies. It is suggested in these briefs that the opinion of the Court has subjected the entire portfolio of intangible properties held by corporate taxpayers to the minimum measure of the franchise tax under T.C.A. § 67-2908 (formerly T.C.A. § 67 — 2909), with serious consequences to financial institutions and other corporations in the state.

The opinion of the Court was addressed to a single specific issue developed by the parties in summary judgment proceedings. The Court did not hold, and does not now hold, that all of the intangible property and assets of appellee or of any other corporate taxpayer fall within the minimum measure of the tax. The only kind or type of intangible asset involved in this litigation is the corporate taxpayer’s interest in an operating partnership.

Appellee, a foreign corporation, formed a partnership to own or control Tennessee real estate and tangible personalty. It insisted that by this method it could place beyond the reach of the franchise tax law both these assets and the value of its partnership interest in the enterprise. We do not so construe the wording or the legal effect of the 1963 amendment to the statute. This is the only issue involved in the litigation and the only one considered in the original opinion. Both parties insisted that as a matter of law the assets or the value of the partnership interest were, or were not, includable. No other issue was developed.

It is clear that the 1963 amendment to the franchise tax law was enacted in response to the opinion of this Court in Memphis Peabody Corp, v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1963). The General Assembly obviously intended to make taxable in the future the type of business arrangement utilized by the taxpayer in that case to avoid the minimum measure of the tax; namely, the leasing or renting of property. It provided that property rented for use by corporate taxpayers in Tennessee must be included, and it prescribed a method for the valuation of such assets.

It is conceded by appellee, however, that the legislature did more than just change the language of the pre-existing statute to include the value of rented property. It made other changes, including deletion of the adjectives “real and tangible” preceding the word “property.” The taxpayer concedes that this deletion had some significance and “some meaning.” The significance which the taxpayer attaches to the amendment, however, is confined to the inclusion of property rented or leased. Throughout this litigation the appellee has urged the courts to so limit the amendment.

It is our opinion that the legislature, in amending the statute, not only sought to prevent the exclusion of leased or rented property, but also sought to close similar loopholes which might be discovered or urged by taxpayers through a narrow interpretation of the phrase “real and tangible” property. The legislature took out those modifying adjectives, and left only the word “property,” so that, as amended, this language remained:

“The measure of the tax hereby imposed shall in no case be less than the actual value of property owned, or property used, in Tennessee.”

It was and continues to be our opinion that under this amendment the legislature authorized the inclusion of intangible rights or assets such as those that are involved here. The original opinion was so worded. It stated that there was nothing in the statute since its 1963 revision which excludes intangible assets “such as this” from the franchise tax measure. The Court was not discussing an entire portfolio of intangible assets as alleged in the petition to rehear and in the amicus brief. It was considering an ownership interest in another business enterprise of a non-corporate nature.

The Court took occasion to cite T.C.A. § 67 — 2906, dealing not with the minimum measure of the tax but with the regular or basic measure, in which shares of stock in other taxpaying corporations are deductible. This provision was not changed in 1963. From this, it seemed to us that after the amendment a taxpayer could continue to utilize subsidiary or affiliate corporations to own or control assets without having included in its minimum tax base either the value of corporate shares of stock which it owned or the assets of subsidiary or affiliate corporations. Where, however, as in the present case, a corporation uses a partnership or some other nontaxable business entity in which to place title or control over assets which otherwise would fall within the minimum measure, then an appropriate portion of its interest in such business organization may be included.

The thrust of our holding, which we reiterate here, was that the 1963 amendment was broader than originally suggested by the Attorney General in his opinions and was not confined solely to the inclusion of property held under a lease. We have not attempted to delineate completely the effect of the 1963 amendment, but we are of the opinion that it was designed to close more than one single loophole and, where necessary to reflect accurately the value of property owned or used in Tennessee by a corporation, to authorize the inclusion of an intangible business interest or ownership such as is shown in this case.

We reaffirm our conclusion that a corporate taxpayer may not, through a business arrangement or organization such as was attempted here, escape the minimum measure of the tax. Ordinarily, of course, the tax is based upon the capital and net worth of the corporate enterprise. As an alternative, the minimum measure historically has been based upon the asset value of real and tangible property owned or used in the state. In our opinion, the General Assembly did not intend to change this minimum measure in any such drastic manner as suggested in the petition to rehear. The change which it did make in the language of the statute, however, and the circumstances under which it made that change, convince us that the General Assembly did not intend to permit corporate taxpayers to enter into other types of business arrangements, such as joint ventures, partnerships, sales and leasebacks and the like and thereby place assets beyond that minimum measure.

Thé franchise tax, by definition, is levied upon “the privilege of engaging in business in corporate form” in this state. T.C.A. § 67-2902. A taxpayer which exercises that privilege and obtains the legal advantages thereof cannot escape the related tax consequences by putting its assets into some other form of business organization. There are no express attribution provisions in the statute, permitting the Commissioner to impute outright ownership of the subsidiary’s assets to the corporate taxpayer. However, it is our opinion that the 1963 amendment was broader in scope than the mere inclusion of leased assets. Its legal effect permitted the inclusion of all or part of the taxpayer’s interest in a business entity such as is shown here.

The petition for rehearing is overruled at the cost of appellee.

BROCK, C. J., and HENRY, COOPER and FONES, JJ., concur.

      .In later codifications and revisions, the word “property” has been preceded by the definite article “the,” but this was not part of the 1963 act or of the Code during the years involved here.

      . The interest of a limited partner is also a personal property right. T.C.A. § 61-218.

      . Formerly T.C.A. § 67-2907.

      . Now codified as T.C.A. § 67-2908.

      . These opinions were not addressed, insofar as we can tell, to any question similar to that involved in this case; namely, the use by a corporation of some other form of subsidiary business organization.

      . Cf. Tenn. Public Service Comm’n v. Nashville Gas Co., 551 S.W.2d 315, 320-21 (Tenn.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 301, 54 L.Ed.2d 191 (1977) (regulated utility may not, through devices of holding companies or spinoffs, avoid reporting of revenues to Public Service Commission for rate-making purposes); General American Transp. Corp. v. Tennessee Bd. of Equalization, 536 S.W.2d 212 (Tenn.1976) (corporation not permitted to avoid classification of its rolling stock as utility property through leasing arrangements with common carriers).