author: SOMERVILLE, Presiding Judge.

text:
    C & M DEVELOPERS, INC., Plaintiff-Respondent, v. BERBIGLIA, INC. et al., Defendants-Appellants.
    Nos. KCD 29551, KCD 29602.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      Daniel S. Millman, Kansas City, Mo., for defendant-appellant Berbiglia, Inc.
    R. Dennis Wright, Daniel R. Cofran, Kansas City, Mo., for appellant Forum Restaurants, Inc.; Hillix, Brewer, Hoffhaus & Whittaker, Kansas City, Mo., of counsel.
    Herbert Horowitz, Kansas City, Mo., for respondent C & M Developers Inc.; Horowitz & Shurin, P. C., Kansas City, Mo., of counsel.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

The litigation spawning this appeal is rich in legal diversity as garnered from a voluminous transcript and untold exhibits revealing an action by a lessor for damages for breach of a lease of real property, enforcement of a written guaranty securing the lessee’s performance of the terms of the lease, and a counterclaim for alleged tor-tious interference with the lessee’s reasonable expectancy of a business relationship pointing toward acquisition of a favorable sublease. A far ranging prologue of facts and appropriate observations will be indulged at the outset in order to elucidate the various issues which were litigated, while reserving the liberty throughout treatment of the several points raised on appeal to intersperse and elaborate upon additional facts deemed germane to resolution of the various points.

On March 1, 1971, Manfred G. Martin, as lessor, entered into a written lease with Berbiglia, Inc., as lessee, for the letting of a commercial building then yet to be constructed on certain real property located at 2919 Vivion Road, Kansas City, Missouri. On March 30,1971, after encountering difficulty in securing financing to construct the proposed commercial building, Martin assigned all of his “right, title and interest in and to” said lease to C & M Developers, Inc., which obtained a loan from North Hills Bank to finance construction of the proposed commercial building. As conditions to making the construction loan, North Hills Bank demanded and received (1) a written assignment dated March 31, 1971, for rents owing under said lease and (2) a written guaranty whereby Forum Restaurants, Inc., guaranteed to C & M Developers, Inc. and North Hills Bank, “jointly and severally”, the “punctual and faithful performance of the terms of said lease by Berbiglia, Inc. for and during the ten year term thereof and any renewal or extension thereof.” Construction of the proposed commercial building was completed in early December, 1971, and occupancy thereof by Berbiglia, Inc., as tenant under said lease, commenced on December 8, 1971. Monthly rentai under the terms of the lease was “$1,250.00, payable on the first day of each month in advance.” Berbiglia, Inc. occupied the commercial building until April 30, 1973, at which time it voluntarily vacated the leased premises because the volume of business it was doing at the location had not lived up to expectations. Berbiglia, Inc. stopped making rental payments after August, 1973.

Berbiglia, Inc.’s default in rental payments during the term of said lease eventually precipitated the filing of a petition in two counts in the Circuit Court of Jackson County, Missouri, by C & M Developers, Inc. (hereinafter C & M) as plaintiff against Berbiglia, Inc. (hereinafter Berbiglia) and Forum Restaurants, Inc. (hereinafter Forum) as defendants. Count I of said petition sought judgment against Berbiglia for damages for breach of contract in the prayed for amount of $37,000.00 and Count II of said petition sought judgment against Forum under the written guaranty executed by it in the prayed for amount of $37,000.00. Berbiglia, by way of answer to Count I of C & M’s petition, denied that it was in default and affirmatively pleaded that C & M (1) had wrongfully disturbed its right of “quiet” possession, and (2) had terminated said lease by leasing said premises directly to another tenant (Custom Music Corporation) without the knowledge or consent of Berbiglia. Berbiglia also filed what was captioned “Setoff, Recoupment and Counterclaim Against Plaintiff [C & M] and Defendant Martin”, and Manfred G. Martin (hereinafter Martin) was made a party to the claims asserted therein pursuant to Rule 55.32(g). Berbiglia’s theory of setoff or recoupment was its right to receive credit for any rental payments paid to C & M by any third party during the balance of Ber-biglia’s original term under the lease, and its theory of recovery under its counterclaim was that C & M and Martin tortiously interfered with a reasonable expectancy on Berbiglia’s part of securing a favorable sublease of the premises from Custom Music Corporation for the balance of Berbiglia’s term under its original lease with C & M.

Among innumerable stipulations entered into between the parties, the following are deemed most pertinent at the moment for giving a broad overview of the case: (1) during March of 1971 Berbiglia was a Missouri corporation whose stock was wholly owned by Forum; (2) any and all acts or transactions engaged in by Martin appertaining to the lease were done for and on behalf of both himself and C & M; (3) Count I of C & M’s petition and Berbiglia’s counterclaim were to be tried to a jury and Count II of C & M’s petition was to be tried to the court; (4) the “sole issue” for trial in Count II was that of “Forum’s defense that there was no consideration for the guaranty”; (5) in the event the court returned a verdict in favor of C & M and against Forum under Count II of C & M’s petition upholding enforcement of the guaranty and the jury returned a verdict in favor of C & M and against Berbiglia under Count I of C & M’s petition the court was directed and authorized to render a “joint” judgment in the same amount against Forum; (6) in the event the jury returned a verdict in favor of Berbiglia and against C & M under Count I of C & M’s petition the court was authorized and directed to render and enter a judgment in favor of Forum under Count II of C & M’s petition; and (7) in the event the court returned a verdict in favor of Forum and against C & M under Count II of C & M’s petition the court was authorized and directed to render a judgment in favor of Forum and against C & M whether or not C & M recovered against Berbiglia under Count I of C & M’s petition.

The trial court directed a verdict in favor of C & M and Martin and against Berbiglia on Berbiglia’s counterclaim; a jury found in favor of C & M and against Berbiglia under Count I of C & M’s petition and awarded damages totaling $41,951.00; and the court found the sole issue of “consideration for the guaranty” under Count II of C & M’s petition in favor of C & M and against Forum. Per stipulation of the parties, judgment in the amount of $41,951.00 was rendered against Berbiglia and Forum “jointly and severally”. A timely motion for new trial filed by Berbiglia was first overruled and then reinstated with C & M thereafter being advised that in the event it failed to make remittitur in the sum of $1,975.00 Berbiglia’s motion for new trial would be sustained. C & M responded by making remittitur in the sum of $1,975.00, and the trial court responded by rendering a final judgment in the amount of $39,-976.00 against Berbiglia and Forum “jointly and severally” and overruling Berbiglia’s motion for new trial. Timely appeals by both Berbiglia and Forum followed.

Berbiglia and Forum, after probing all facets of this convoluted litigation at the trial court level for signs of error, retreated to four points and two points respectively in their separate briefs on appeal. The four points ultimately advanced by Berbiglia on appeal are: (1) C & M was not the real party in interest in the cause of action alleged by C & M in Count I of its petition by reason of the assignment of rents to North Hills Bank; (2) error on the part of the trial court in directing a verdict in favor of C & M and Martin and against Berbiglia on Berbiglia’s counterclaim; (3) error on the part of the trial court in refusing to sustain Berbiglia’s motion for a new trial because of excessiveness of the verdict; and (4) the remittitur ordered by the trial court was “inadequate” and so beset with vagueness and uncertainty that it did not adequately cure the excessive verdict returned by the jury. The two points ultimately advanced by Forum on appeal are: (1) no consideration existed to support the guaranty as it was executed subsequent to the lease and therefore required a new and independent consideration for its support; and (2) C & M was not the “proper party” to enforce the guaranty. The various points will hereinafter be separately addressed in the order of their reference.

Berbiglia’s first point, resting as it does on the contention that C & M was not the real party in interest by reason of an absolute assignment of rents due. and owing under the lease to North Hills Bank, is countered by C & M’s contention that it was a real party in interest as the assignment was not absolute but was merely given as collateral security for the loan made by North Hills Bank to C & M.

Rule 52.01 leads off with the positive command that “[ejvery civil action shall be prosecuted in the name of the real party in interest . Concomitantly, the general rule is that an absolute assignment of an entire right or interest works a divestiture of all right or interest of the assignor therein and for purposes of maintaining a civil action thereon the as-signee becomes the real party in interest. Lumbermen’s Mutual Casualty Co. v. Norris Grain Co., 343 F.2d 670, 688 (8th Cir. 1965); Milliken-Helm Commission Co. v. C. H. Albers Commission Co., 244 Mo. 38, 147 S.W. 1065, 1067 (1912); and Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132, 1137 (1895). On the other hand, a conditional assignment made as collateral security for a debt does not work a divestiture of all right or interest of the assignor therein but, to the contrary, he retains a sufficient right or interest therein to qualify as a real party in interest for the purpose of maintaining a civil action. Cantor v. Union Mut. Life Ins. Co., 547 S.W.2d 220, 226 (Mo.App.1977);. Key v. Continental Ins. Co., 101 Mo.App. 344, 74 S.W. 162, 166 (1903); Hoeppner Construction Company v. United States, 287 F.2d 108, 112 (10th Cir. 1960); United States v. Verrier, 179 F.Supp. 336, 341 (D.Me.1959); and Fifty States Management Corp. v. Pioneer Auto Parks, Inc., 44 A.D.2d 887, 355 N.Y.S.2d 856, 858 (1974).

The question of whether the assignment of rents in the instant case was absolute or made as collateral security for the debt incurred by C & M with North Hills Bank takes on a status of decisional importance and priority. As cogently stated in Wickert v. Folk, 250 Wis. 194, 26 N.W.2d 540, 541 (1947), the term “collateral security”, when used to describe evidence of a debt given by a debtor to a creditor, “is intended to express that it is not received in payment of the primary debt, and that it is not an additional right to which the creditor is absolutely entitled . . [but] [i]t is merely a concurrent security for another debt, whether antecedent or newly created, and is designed to increase the [facilities] of the creditor to realize the principal debt which it is given to secure.” Accord: Third Nat. Bank v. Hall, 30 Tenn.App. 586, 209 S.W.2d 46, 50 (1947); and 68 Am.Jur.2d Secured Transactions § 50 (1973). Parenthetically, Missouri cases of considerable vintage are to be found subscribing to the fundamental proposition that future rents can be assigned as collateral security for another debt. John McMenamy Investment & Real Estate Co. v. Dawley, 183 Mo.App. 1, 165 S.W. 829, 831 (1914); and Armour Packing Co. v. Wolff & Co., 59 Mo.App. 665, 667-68 (1894). The instrument documenting the assignment of rents by C & M to North Hills Bank recites, inter alia, that (1) “North Hills desires further security for the payment of the principal of said loan and interest thereon and for the performance by C & M of all the terms, conditions and agreements on its part to be performed and which are contained in the aforementioned Promissory Note and Deed of Trust . . (emphasis added), (2) “[t]his assignment is to remain in full force and effect and to be binding upon the grantees, transferees, and assigns of C & M until the indebtedness secured by the said deed of trust above described shall be fully paid . . . .” (emphasis added), and (3) “[i]t is further understood and agreed by C & M that while this assignment is in force, C & M shall not be relieved from the performance °f anY the obligations of the ownership of said Leasehold Estate . . . .” (emphasis added). When the concept of “collateral security” embraced in Wickert v. Folk, supra, is juxtaposed with the quoted portions lifted from the formal instrument of assignment, the true nature of the assignment in question as “collateral security” commensurate with the indebtedness incurred by C & M with North Hills Bank becomes readily perceptible. Moreover, another matter of equally telling importance and persuasiveness for reaching this Conclusion lies in the fact that the rents due and owing under the lease substantially exceed the amount of indebtedness owed by C & M to North Hills Bank. The relevant importance of facts of like tenor were emphasized in Hoeppner Construction Company v. United States, supra, United States v. Verrier, supra, and Fifty States Management Corp. v. Pioneer Auto Parks, Inc., supra.

No merit is found in Berbiglia’s contention that C & M was not a real party in interest for purposes of bringing this action for damages for breach of the lease running between C & M and Berbiglia.

In the waning portion of its argument C & M takes an inverse approach to Berbiglia’s first point by suggesting in a very casual and offhanded manner that it is devoid of merit because Berbiglia waived any objection to North Hills Bank’s absence as a party to the action. After having met the principal issue head-on and disposing of it adversely to Berbiglia on the basis upon which it was tendered, no useful purpose will be served by engaging in a protracted discussion of this casually raised procedural facet. Suffice it to say, Berbiglia did not question C & M’s status as a real party in interest until after the trial commenced, at which time it did so in a rather convoluted or imprecise fashion by way of an oral motion in conjunction with an exhibit, even then neither raised any question about North Hills Bank’s absence as a party nor made any effort to have North Hills Bank added as a party to the litigation. In Cantor v. Union Mut. Life Ins. Co., supra, it was held that the assignor of an assignment made for purposes of collateral security retained a sufficient interest to maintain an action as a real party in interest and the assignee was a necessary, although not an indispensable, party to the action. Berbig-lia made no claim below that North Hills Bank was a necessary party, much less ask for a determination under Rule 52.04 that North Hills Bank was an indispensable party. This same silence on Berbiglia’s part as to North Hills Bank’s status as a party prevails on appeal. Academically, a claim that one is a necessary party is subject to waiver, and a failure to raise the matter either by way of a motion under Rule 55.27 or by alleging same in a responsive pleading constitutes an effective waiver. Rule 55.-27(g); Skidmore v. Back, 512 S.W.2d 223, 234 (Mo.App.1974); and DeBacker v. Forbes, 406 S.W.2d 811, 813 (Mo.App.1966).

Next, Berbiglia faults the trial court for directing a verdict in favor of C & M and Martin and against Berbiglia on its counterclaim. First, the theory behind the cause of action asserted by Berbiglia in its counterclaim against C & M and Martin will be placed under closer scrutiny. Fairly summarized, Berbiglia’s counterclaim rests upon the theory that C & M and Martin tortiously interfered with a reasonable expectancy on Berbiglia’s part of securing a favorable sublease from Custom Music Corporation for the balance of Berbiglia’s term under its original lease with C & M. A substantive basis for this narrow but crucial aspect of Berbiglia’s pleaded ■ theory of recovery, redress for an intentional interference with a reasonable expectancy of a valid business relationship short of the existence of a contract, is found in Downey v. United Weather Proofing, 363 Mo. 852, 253 S.W.2d 976, 980 (1953): “The right of recovery for inducing a breach of a contract is but one instance of the protection which the law affords against unjustified interference in business relations. An existing contract may be a basis for greater protection, but some protection is appropriate against unjustified interference with reasonable expectancies of commercial relations even where an existing contract is lacking.” Also see Clark-Lami, Inc. v. Cord, 440 S.W.2d 737, 741 (Mo.1969). The contours of the tort of intentional interference with a contract or valid business relationship or of an expectancy of one or the other under Missouri law are legibly traced in Salomon v. Crown Life Ins. Co., 536 F.2d 1233, 1238 (8th Cir. 1976), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976): “(1) A contract or a valid business relationship or expectancy (not necessarily a contract); (2) Defendant’s knowledge of the contract or relationship; (3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship; (4) The absence of justification; and (5) Damages resulting from defendant’s conduct.”

For purposes of reviewing the action taken by the trial court in directing a verdict in favor of C & M and Martin and against Berbiglia on the latter’s counterclaim, it is elementary that the evidence must be viewed in the light most favorable to Berbiglia’s theory of recovery and that Berbiglia be given the benefit of every reasonable favorable inference. Mathes v. Trump, 458 S.W.2d 297, 298 (Mo.1970); and Kreutz v. Wolff, 560 S.W.2d 271, 278 (Mo. App.1977). Evidence supportive of Berbig-lia’s theory of recovery, viewed as mentioned, runs the following course: Roger Rue, a St. Louis real estate agent representing Custom Music Corporation of the same city, contacted Berbiglia’s president on July 10, 1973, and discussed the possibility of subleasing the premises leased by Berbiglia from C & M. Under the written lease Berbiglia had the right to sublet the premises. However, Berbiglia sent Rue to see Martin about the possibility of negotiating a direct lease for the premises as Rue indicated that his client was interested in leasing the premises for twenty years, which was longer than Berbiglia’s unexpired term. Berbiglia’s president made the necessary arrangements for Rue to meet with Martin and sent him on his way with a note of introduction. Before Rue left to see Martin he was given a thirty day option by Berbig-lia to sublet the premises for $1,500.00 per month, to which was attached a copy of the principal lease. Berbiglia’s president notified Martin when he called to make arrangements for Rue to see him that Rue had a thirty day option to sublet the premises for $1,500.00 per month. Rue had obtained the thirty day option because he was afraid someone would rent the premises out from under him. Martin and Rue failed to come to any agreement on July 10, 1973, and Rue apparently returned to St. Louis. On August 3, 1973, Rue returned to Kansas City and again contacted Berbiglia’s president. On this occasion Rue advised Berbiglia’s president that Martin was “impossible” and that his client was ready to pay the sum of $1,500.00 per month to sublease the premises from Berbiglia for the balance of its term. The upshot of this conversation was the preparation of a longhand memorandum reciting certain basic provisions to be contained in a formal sublease to be prepared for execution by Ber-biglia and Custom Music Corporation. Among other things Custom Music Corporation wanted Martin to install a ten foot overhead door and an access door. There was some disagreement about the location of the doors, as to their specifications and Martin’s insistence that he install them. On August 4, 1973, Berbiglia contacted its lawyers and instructed them to prepare an appropriate sublease for the purpose of subletting the premises to Custom Music Corporation for the remainder of Berbiglia’s term for a rental of $1,500.00 per month. Berbiglia’s lawyers proceeded to draft a sublease containing a “landlord’s consent” and took the original and a suitable number of copies to Martin and obtained his “signature” at the appropriate places thereon. According to Berbiglia’s lawyer, Martin read the sublease and “landlord’s consent” over before affixing his signature to the original and accompanying copies. Berbig-lia executed the original and required number of copies of the sublease and then forwarded them, along with the attached “landlord’s consent”, to Rue in St. Louis. However, the sublease was never executed by Custom Music Corporation. On August 8, 1973, the day after he gave his written consent to the sublease, Martin went to St. Louis and negotiated a “Letter of Agreement” pointing toward the preparation and execution of a formal lease of the premises between C & M and Custom Music Corporation for a term of twenty years at a rental of $1,250.00 per month. However, a lease between C & M and Custom Music Corporation never materialized. The only evidence as to what prompted Martin to go to St. Louis on August 8, 1973, was that he did so in response to a telephone call from Rue. The upshot of all that occurred was that all negotiations between C & M and Custom Music Corporation and Berbiglia and Custom Music Corporation ultimately fell through and neither a binding lease nor a binding sublease was ever executed.

Berbiglia contends that the above facts unquestionably supported submission of the cause of action espoused by it in its counterclaim against C & M and Martin. At first blush Berbiglia’s contention tends to strike a responsive cord. A closer analysis of the record however reveals a total absence of evidence that Martin and C & M were unjustified in engaging in separate negotiations with Custom Music Corporation under the attendant circumstances, and Berbiglia’s remissness in this respect constitutes a fatal flaw in the submissibility of its counterclaim. The absence of justification is a vital component of any action predicated upon tortious interference with a valid business relationship or expectancy. One of the requisite elements under Missouri law as explicated in Salomon v. Crown Life Ins. Co., supra, for making such tortious interference actionable spotlights this vital component. Although a majority of jurisdictions hew to the position that a claim of justification in an action for tortious interference with a valid business relationship is in the nature of an affirmative defense which must be pleaded and proved by the defendant. Missouri takes an opposite position. The polarization just mentioned is explicated in Gerstner Electric, Inc. v. American Insurance Company, 520 F.2d 790, 794 (8th Cir. 1975): “The Missouri law on the subject is clear. In order to recover on its claim that appellee wrongfully interfered with its Contract by inducing its breach, appellant was compelled to prove that appellee ‘maliciously’ (i. e., with knowledge of the Contract and without justifiable cause) induced its breach. The absence of justification is an essential element of this cause of action.” (Emphasis added.) This polarization of positions is stated with like pungency in Pillow v. General American Life Ins. Co., 564 S.W.2d 276, 280 (Mo.App. 1978): “Missouri is among those states which include as an element of the cause of action for tortious interference with contract that the acts of the defendant inducing or causing the breach of the contract be without justification.’’ (Emphasis added.) As evident from Gerstner Electric, Inc. v. American Insurance Company, supra, under Missouri law absence of justification is equatable with malicious interference and the absence of justification is an essential element of a cause of action predicated upon tortious interference with a valid business relationship or expectancy. This being true, lack of justification is one of several elements which a party seeking recovery is “compelled to prove”.

Assuming arguendo that Berbiglia produced sufficient evidence to establish all other requisite elements of its cause of action, the thorny issue of whether there was any evidence or reasonable favorable inference to support the essential element of lack of justification possesses an entirely different legal complexion. Getting to the heart of the matter, where is there any evidence that Martin and C & M’s efforts to negotiate a lease directly with Custom Music Corporation were without justification? All of the evidence touching upon this apical element, and all reasonable favorable inferences which might legitimately be drawn, are the antitheses of a lack of justification. Berbiglia actively invited Martin and C & M to negotiate directly with Custom Music Corporation’s representatives for the purpose of effecting a direct lease of the premises. If Martin had been successful in doing so it would have inured to Berbiglia’s benefit by measurably mitigating the exposure to damages which it brought upon itself for unilaterally breaching the lease. All of the evidence and reasonable favorable inferences drawn therefrom overwhelmingly demonstrate that Berbiglia’s rationale for introducing Custom Music Corporation’s representative to Martin was for the purpose just mentioned. To say the least Berbiglia is hard put to presently cry foul because Custom Music Corporation eventually concluded to neither lease nor sublease the premises. In any event, it cannot do so on the basis that Martin and C & M were unjustified in negotiating with Custom Music Corporation for a direct lease of the premises in face of the undisputed evidence that Berbiglia initiated such negotiations. Berbiglia and C & M were both vitally interested in getting a rent paying substitute tenant for the premises.

From beginning to end the essential element of lack of justification, at best, foundered in an abyss of speculation and conjecture. The trial court properly rejected submission of Berbiglia’s counterclaim on such tenuous grounds. Osterhaus v. Gladstone Hotel Corporation, 344 S.W.2d 91, 94 (Mo. 1961); and Titone v. Teis Construction Company, 426 S.W.2d 665, 669 (Mo.App. 1968). Even if legally permissible to do so, the most fertile mind would be taxed beyond imagination to engage in the degree of speculation and conjecture necessary to cause one to latch onto an otherwise legally unsupportable belief that Martin and C & M were unjustified in pursuing to the end their effort to negotiate a direct lease with Custom Music Corporation. Speculation and conjecture play no part in determining the submissibility of an essential element of a cause of action, because by their very nature they lend themselves to being indulged in ad infinitum both pro and con. After excising speculation and conjecture one inescapable fact remains — the eviden-tiary void in Berbiglia’s counterclaim with respect to proof of lack of justification was never filled directly or upon the basis of any reasonable inferences drawn from the testimony of any witness or by the introduction and admission of any exhibit. Ber-biglia argues that three exhibits which it identified and offered into evidence, but which were refused by the trial court, would, if considered, support submission of its counterclaim. Berbiglia has not charged the trial court with error for refusing to admit said exhibits nor has it advanced any reason or cited any authority which would support a charge that the trial court erred in doing so. Under these circumstances, Berbiglia’s circuitous effort to have the exhibits considered for the purpose of determining submissibility of its counterclaim warrants little if any appellate consideration. Suffice it to say, this court has, ex gratia, considered the exhibits in question in the context at hand and finds them to be nugatory. Bluntly put, proof that Martin and C & M were unjustified in carrying on direct negotiations with Custom Music Corporation for the purpose of obtaining a direct lease of the premises, albeit to an unsuccessful conclusion, is imbedded in nothing more than speculation and conjecture.

Berbiglia’s third point invokes numerous variations of a common theme — excessiveness of the verdict. For purposes of clarity, the numerous variations will be referred to in terms of subpoints. Subpoint one: the verdict returned by the jury in the amount of $41,951.00 was excessive in that it exceeded the amount of damages claimed by C & M in Count I of its petition, namely, damages in the sum and amount of $37,-000.00. Subpoint two: the verdict returned by the jury in the amount of $41,951.00 was excessive in that it exceeded in amount that which was supported by the evidence. Sub-point three: the verdict was excessive by reason of improperly including amounts for nonrecoverable items of alleged damages. Subpoint four: the verdict was excessive in that it improperly reflected evidentially unsupported calculations advanced by opposing counsel during closing argument. Sub-point five: the verdict was excessive because certain credits which Berbiglia claimed it was entitled to were supposedly ignored by the jury during its deliberations in reaching its verdict. Subpoint six: Ber-biglia’s “side of the case” was “never fairly considered by the jury” and the verdict was excessive in that it was the product of bias and prejudice on the part of the jury. Unaware of any abbreviated method for disposing of Berbiglia’s Hydra-like third point, it will be treated subpoint by subpoint after being preceded by an appropriate prologue.

During the course of the trial C & M was permitted to amend by interlineation various amounts of damages attributed to separate items making up the whole of the damages sought by it under Count I of its petition. However, these amendments were never reflected in the total amount of damages formally claimed by C & M in Count I of its petition, to wit, $37,000.00, which remained the same and was never amended by interlineation. The jury returned a verdict in favor of C & M and against Berbiglia in the amount of $41,-951.00 which on conditional order of the trial court was reduced by remittitur to $39,976.00 and judgment in the latter amount was rendered by the trial court in favor of C & M and against Berbiglia and Forum “jointly and severally”.

Berbiglia’s first subpoint is not totally without merit, although relief short of unconditionally granting a new trial, for reasons hereinafter set forth, was appropriate. True enough a jury verdict which exceeds in amount that which is claimed in a party’s petition is deemed excessive. Acy v. Inland Security Company, 287 S.W.2d 347, 353 (Mo.App.1956); and Butler v. Equitable Life Assur. Soc., 233 Mo.App. 94, 93 S.W.2d 1019, 1027 (1936). However, if the excess is not so great as to indicate prejudice on the part of the jury, the error may be corrected by way of remittitur. Minor v. Lillard, 306 S.W.2d 541, 545 (Mo.1957); and Butler v. Equitable Life Assur. Soc., supra.

Berbiglia’s second subpoint, that the verdict was excessive in that it exceeded in amount that which was supported by the evidence, pivots on whether Berbiglia was given proper credit for rental income received by C & M from third parties during certain periods of Berbiglia’s default under the lease. A careful seining of apposite portions of the record compels the conclusion that Berbiglia was entitled to but did not receive credits in amounts totaling $1,975.00 and in the sense argued by Ber-biglia the verdict rendered by the jury ($41,951.00) exceeded the amount of damages supported by the evidence by the sum and amount of $1,975.00 and exceeded the amount of damages formally claimed in Count I of C & M’s petition ($37,000.00) by the sum and amount of $4,951.00.

At this juncture subpoints one and two lend themselves to being jointly discussed. Although the verdict returned by the jury exceeded the amount formally claimed as damages in Count I of C & M’s petition and, as well, the amount supported by the evidence, the judgment rendered thereon after remittitur ($39,976.00) did not exceed in amount that which was supported by the evidence and comported with the amount of damages claimed by C & M in its petition if Count I of its petition may be viewed as having been amended by the evidence. A verdict which exceeds in amount that which is supported by the evidence may be cured by remittitur if the excess is not so great as to indicate prejudice on the part of the jury. Sanders v. Illinois Central Railroad Company, 364 Mo. 1010, 270 S.W.2d 731, 737 (banc 1954); and Wandell v. Ross, 241 Mo.App. 1189, 245 S.W.2d 689, 694 (1952). Rule 55.33(b) provides, in part, as follows: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” No objection was made by Berbiglia that any of the amounts pertaining to various items of damage were not within or were beyond the scope of the pleadings. Arzberger v. Grant, 500 S.W.2d 23, 27 (Mo. App.1973) and Vitt v. Baer, 335 S.W.2d 681, 685-86 (Mo.App.1960), although slightly inexact, factually speaking, but nevertheless sufficiently analogous, hold that the amount formally claimed as damages in a petition may be amended by the evidence.

Berbiglia’s third subpoint, that the verdict was excessive because it included anticipatory damages, centers on damages resulting from a loss of rentals incurred by C & M by reason of having leased the premises after Berbiglia’s default to another tenant at a monthly rental less than that provided for in its lease with Berbiglia. Berbiglia contends that any damages predicated on the difference in rentals beyond the date the case was tried were anticipatory in nature and nonrecoverable. Berbig-lia’s third subpoint is a thinly veiled attempt to attack on appeal certain evidence which was admitted during trial after an objection to its admission during trial was withdrawn. In reality, evidence underlying Berbiglia’s third subpoint was admitted without objection and no error associated with its admission was preserved for purposes of appeal. Nichols v. Blake, 418 S.W.2d 188, 191 (Mo.1967); Sandler v. Schmidt, 263 S.W.2d 35, 40 (Mo.1953); and Behlman v. City of Florissant, 548 S.W.2d 619, 621 (Mo.App.1977). Parenthetically, Hawkinson v. Johnston, 122 F.2d 724, 731 (8th Cir. 1941); cert. denied, 314 U.S. 694, 62 S.Ct. 365, 86 L.Ed. 555 (1941), involving substantive law of Missouri, holds that where there is a breach of a lease of real property for an extended term recovery of future damages is not precluded on the theory of their being anticipatory if they are “capable of reasonable approximation.”

Berbiglia’s fourth subpoint, that the verdict was excessive in that it improperly reflected evidentially unsupported calculations advanced by opposing counsel during closing argument, represents another attempt by Berbiglia to circuitously reach an instance of alleged trial error which occurred without objection at the time and which therefore was never properly preserved for appeal. Berbiglia’s poorly disguised effort to presently object to the argument of opposing counsel was waived by its failure to timely object thereto during trial. Blevins v. Cushman Motors, 551 S.W.2d 602, 616 (Mo. banc 1977); and Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 7 (Mo.1970).

Berbiglia’s fifth subpoint, that the verdict was excessive because certain credits which it claimed it was entitled to were supposedly ignored by the jury during its deliberations in reaching its verdict, is, when put in proper posture, contradicted by the record. In particular, the genesis of this subpoint is that the jury failed to give Berbiglia proper credit for certain amounts received from a substitute tenant in excess of the rental amount owed by Berbiglia under the terms of the lease. Evidence thereof was offered and freely admitted. Notwithstanding its admission, the jury apparently rejected the notion of giving Ber-biglia credit for such amounts. Put in proper perspective, C & M made no claim for damages during the period Berbiglia claims the jury supposedly ignored or refused to give it credit for rental amounts in excess of those which Berbiglia was obligated to pay under the terms of its lease. In other words, Berbiglia was attempting to offset damages by obtaining credit for rentals inuring to C & M in the future during a period in which C & M was making no claim against Berbiglia for damages. Acceptance of the rationale employed by Berbiglia would unjustly patronize Berbiglia by permitting it to extract a reward and reap a benefit by its own initial misdoing. In at least one other jurisdiction a court virtually rejected out of hand an attempt by a defaulting lessee to capitalize on his own misdeed under analogous circumstances. Trick v. Eckhouse, 82 Ind.App. 196, 145 N.E. 587, 588 (1924).

Berbiglia’s sixth subpoint, that the verdict was excessive by reason of being the product of bias and prejudice on the part of the jury, is not persuasive. The dichotomy of mere excessiveness of a verdict and ex-cessiveness of a verdict due to bias and prejudice on the part of the jury, and accepted antidotes for each, is clearly spelled out in Blevins v. Cushman Motors, supra. Speaking in terms of lodging objections against jury verdicts on grounds of exces-siveness, the court in Blevins at 614-15 carefully drew the following distinction: “One is that it is merely excessive, and in that case the verdict may be cured by re-mittitur. The second type of objection is that the verdict is excessive as the product of bias and prejudice on the part of the jury; and in this case the excessiveness cannot be cured by remittitur, but requires a new trial.” By way of further explicating excessiveness due to bias or prejudice on the part of the jury, the court in Blevins at 615 took pains to carefully point out that “[i]t is firmly settled that ‘ “the mere size of a verdict — the fact that it may be excessive — does not in and of itself establish that it was the result of bias or passion and prejudice * * *, without showing some other error committed in the trial.” ’ ” Ber-biglia castigates C & M for having had “a glorious feast at . [its] expense”, and chastises the jury for “complying placidly with the ‘evidence’ supplied in . [the] argument by counsel for . . [C & M]”, and for “slavishly . . [adopting] the specific amounts and calculations supplied by counsel for . [C & M] during his closing arguments to the jury.” This dramatically exceeds the bounds of subtly inferring that some degree of bias and prejudice must have crept into the jury’s deliberations absent specification of any particular instance of error committed during the course of the trial which supposedly poisoned the jury’s thinking against the losing party. The jury in the instant case was unfortunately confronted with complicated issues presented in a complicated manner and its verdict, to the extent it was excessive, reflected the complicated nature of the issues and the manner in which they were presented rather than a manifestation of any overt or covert bias or prejudice on its part. Evidence as to the various elements of damages was presented in dollar amounts and the damages arrived at in the verdict ultimately involved a matter of mathematical computation. As C & M has been exonerated from any charged incidence of error interspersed throughout the previous five subpoints, Berbiglia’s sixth subpoint affords no relief because of its failure to establish any particular instances of error to transpose the jury’s verdict from a state of mere excessiveness to a state of excessiveness occasioned by bias or prejudice on the part of the jury.

Although the verdict in the instant case was excessive in that it exceeded the amount formally claimed by C & M in Count I of its petition before being amended by the evidence and also exceeded the amount supported by the evidence, Berbig-lia’s failure to convincingly demonstrate that it resulted from bias and prejudice instigated by some particular instance of error committed during the course of the trial placed the verdict in the category of excessiveness that could be cured by remit-titur. Such being the case, the conditional remittitur ordered by the trial court and accepted by C & M was appropriate under the circumstances and properly authorized rendition of a final judgment in the sum and amount of $39,976.00 against Berbiglia, and against Forum via the stipulation in the event it was liable under the guaranty. Minor v. Lillard, supra; Butler v. Equitable Life Assur. Soc., supra; Sanders v. Illinois Central Railroad Company, supra; Wandell v. Ross, supra; Arzberger v. Grant, supra; and Vitt v. Baer, supra.

Berbiglia’s fourth and final point criticizes the remittitur ordered by the trial court for being “inadequate” and for being in the form of a “blanket, non-specific” sum. Criticism presently leveled on grounds of inadequacy inversely attempts to rehash and reargue Berbiglia’s previous charge that the verdict was excessive. It was labored over at length when directly put in issue and will not be reconsidered in its warmed-over form. Criticism leveled at the remittitur for being in the form of a “blanket, non-specific” sum rests on the hypothesis that the judgment rendered by the trial court after remittitur was vague and uncertain because of its lack of specificity as to amounts and items of damages to which the remitted sum applied. This argument is bootstrapped by the fact that in the event the jury found in favor of C & M and against Berbiglia under Count I of C & M’s petition, the form of verdict given the jury to follow required it to allocate any damages awarded among four specified elements of damages. The form of the verdict embodied in Instruction No. 8 was given at the request of C & M and without objection by Berbiglia. The source of or rationale for Instruction No. 8 was never disclosed, either during trial or on appeal. Even though the parties may be said to have tacitly agreed to submit a verdict form requiring the main elements of damages to be separately stated by the jury in its verdict, with separate amounts allocated for each item, no rule or statute imposed such requirements. To the contrary, Section 510.220, RSMo 1949 (now embodied in Rule 71.01), Section 510.230, RSMo 1949 (now embodied in Rule 71.02), and Section 510.270, RSMo 1949 (now embodied in Rule 71.06), were construed as follows in Chariton River Drainage Dist. v. Waddill, 254 S.W.2d 991, 992 (Mo.App.1953): “The issue in the instant case was one for the recovery of money. It is only in cases involving the assessing of exemplary or punitive, as well as compensatory damages, that it is required that the respective amounts allowed for each shall be separately found and stated. In other cases the statutes do not require that the various elements of damage involved be separately stated in the jury verdict together with the amount allowed for each.” Absent a requirement that the various elements of damage had to be separately found and stated by the jury in its verdict, no sound reason exists for condemning the judgment rendered by the trial court after remittitur on grounds of vagueness and uncertainty.

At this juncture attention turns to the two points relied upon by Forum on appeal — (1) lack of consideration to support the guaranty and (2) that C & M was not the “proper party” to enforce the guaranty. Reverting back to the stipulation entered into between the parties regarding submission of Count II to the court for trial rather than to the jury, the same specifically provided that the “sole issue” for trial in Count II was that of “Forum’s defense that there was no consideration for the guaranty”. Ergo, Forum will not be permitted at this late date to broaden the issues in total disregard of the formal stipulation entered into at the trial court level. Further reasons for not permitting Forum to jump the stipulation and broaden the issues on appeal lie in the fact that Forum neither moved to have North Hills Bank added as a party at the trial court level nor makes any contention on appeal that North Hills Bank was an indispensable party within the purview of Rule 55.27(g)(2). However, the first of Forum’s two points on appeal, lack of consideration to support the guaranty, having been raised at the trial level and preserved for appellate review, merits attention and disposition on a substantive basis.

Forum posits its first point on the settled principle that “[a] contract of guaranty, like any other contract, must be founded upon a valuable consideration . [and] [w]here the guaranty is executed subsequent to the principal contract, it requires a new and independent consideration.” J. R. Watkins Co. v. Smith, 31 S.W.2d 544, 546 (Mo.App.1930). Accord: De Lassus v. Russell, 296 S.W. 225, 227 (Mo.App.1927). Since the guaranty in the instant case was executed subsequent to the lease, i. e. the “principal contract”, Forum postulates that no consideration existed to support the guaranty as C & M was already obligated under the lease to construct and put Ber-biglia into possession of the improvement and premises described in the lease. Forum has conveniently avoided any mention or analysis of even the most basic facts, in the context of accepted principles of contract law touching upon consideration, for the purpose of determining whether or not any “new” and “independent” consideration existed to support the guaranty. To the contrary, Forum arbitrarily assumes that no “new” and “independent” consideration existed and erroneously cites Northern State Construction Company v. Robbins, 76 Wash.2d 357, 457 P.2d 187 (1969), as authority for its summary conclusion that the construction loan by North Hills Bank to C & M did not constitute a “new” and “independent” consideration for the guaranty. Factually, Northern State Construction Company and the case at bar stand in stark contrast to each other. The guaranty sued upon in Northern State Construction Company guaranteed performance of the obligations of a property owner to a contractor under a construction contract. The guaranty was entered into subsequent to the construction contract, and, additionally, the trier of fact found no evidence of any “new" or “independent” consideration to support it. This being the case, the court held that the contractor could not recover against the guarantor. The resume of facts set forth in Northern State Construction Company incidentally mentioned a second and distinctly separate guaranty wherein the same guarantor undertook to guarantee to a bank the contractor’s repayment of a construction loan obtained from the bank to complete the contract. However, and this fact cannot be overemphasized, this second and distinctly separate guaranty incidentally mentioned in the resume of facts contained in Northern State Construction Company was not the subject of the litigation and the court neither held nor intimated by way of dictum that the second and distinctly separate guaranty was not supported by adequate consideration.

C & M does not rely upon its promises in the lease to construct a commercial building on the premises and put Berbiglia in possession thereof as consideration to support the guaranty executed by Forum. It would appear that any attempt to do so would run afoul of the widely accepted principle that a promise to carry out an already existing contractual duty of the promisor does not constitute consideration. Dobbins v. City Bond & Mortgage Co., 343 Mo. 1001, 124 S.W.2d 1111, 1116 (1938); Lingenfelder v. Wainwright Brewery Co., 103 Mo. 578, 15 S.W. 844, 848 (Mo.1891); and Rexite Casting Co. v. Midwest Mower Corp., 267 S.W.2d 327, 331 (Mo.App.1954).

It appears patently obvious that this court for the most part must resort to general principles of contract law in order to resolve the issue as to the presence or lack of a “new” and “independent” consideration to support the guaranty. Any meaningful discussion of this issue in the context just mentioned requires legal identification of the parties in terms of their relationship under the written guaranty. With this thought in mind Forum may be said to be both a guarantor and a promisor, North Hills Bank may be said to be both a guarantee and a promisee, C & M may be said to be both a guarantee and a promisee, and Berbiglia, whose performance under the lease was guaranteed by Forum, may be said to be the principal obligor. At the risk of being repetitious, it should be borne in mind throughout the following discussion that the construction loan made by North Hills Bank to C & M, and all its attendant conditions, occurred after the lease was executed and were in no way involved in the negotiation or execution of the lease.

Consideration to support a guaranty need not run to the guarantor-promis- or. Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470, 474 (Mo.1946). There it was held that a loan by a promisee under a guaranty to the principal obligor whose obligation was the subject of the guaranty was adequate consideration to support the guaranty. Rationale for the holding finds expression in the following language (this court has taken the liberty of interpolating in brackets, at appropriate places, the names of corresponding parties in the case at bar): “It is not necessary to the validity of contract that a consideration be of real value to the promisor [Forum]. A benefit to a third person, or a detriment to the promisee [North Hills Bank] or a change in his relations in consequence of the promise is sufficient consideration to render the promisor [forum] obligated.” Id. Accord: Miner v. Bennett, 556 S.W.2d 692, 696 (Mo. App.1977). A syllogistic application of the principle relied upon in Industrial Bank & Trust Co. v. Hesselberg, supra, to the facts at hand supports the conclusion that the loan by North Hills Bank to C & M, viewed in its most restrictive sense, constituted a “new” and “independent” consideration to support the guaranty as between North Hills Bank and Forum.

Resolution of the more crucial companion issue — was it essential or necessary that consideration to support the guaranty in favor of C & M move directly from C & M to Forum — calls upon this court to resort to general principles of contract law by reason of a dearth of specific case authority. The general principle deemed most pertinent and applicable is broadly put as follows (with this court once again engaging in interpolation) in John Davis & Co. v. Cedar Glen # Four, Inc., 75 Wash.2d 214, 450 P.2d 166, [71 (1969): “It is not essential that the consideration move directly from the promisee [C & M], It is sufficient if it moves from a third person [North Hills Bank]. Generally, if consideration is sufficient in other respects, it does not matter from whom the consideration moves. It may move from a third person [North Hills Bank] as well as from the promisee [C & M].” This general principle is stated with even greater acuity in the Restatement of Contracts § 75(2) (1932): “Consideration may be given to the promisor or to some other person. It may be given by the prom-isee [C & M] or by some other person [North Hills Bank].” A syllogistic application of the general principle of contract law just mentioned supports the further conclusion that even when the guaranty is viewed in the equally restricted dimension of a guaranty running in favor of C & M, the loan by North Hills Bank to C & M constituted a “new” and “independent” consideration for its support.

If the single consideration, i. e. the loan by North Hills Bank to C & M, was adequate to separately support Forum’s guarantee of Berbiglia’s performance under the lease to either North Hills Bank or to C & M, then the only remaining question is whether the single consideration was adequate to support both guaranties when viewed conjunctively. Once again, resort to accepted principles of general contract law supports the conclusion that a single consideration may support a number of promises. Reference is made to the following excerpt from 1 Corbin on Contracts § 125, at 535-36 (1963): “A single and undivided consideration may be bargained for and given as the agreed equivalent of one promise or of two promises or of many promises. The fact that there are many promises given in exchange for the one consideration does not make it insufficient as to any of them. If it would be sufficient to support each of the promises taken separately, it is sufficient for all of them.” (Emphasis added.) Accord : Williston on Contracts § 137A, at 594 (3d ed. 1957); and Restatement of Contracts § 83 (1932). A syllogistic application of the principle of general contract law gleaned from the highly respected texts just cited, in conjunction with all previous conclusions drawn, supports the final, capping conclusion that the single consideration, i. e. the loan by North Hills Bank to C & M, constituted a “new” and “independent” consideration to support Forum’s promise to guarantee Berbiglia’s performance under the lease to both North Hills Bank and C & M.

Having probed the various facets of the consideration issue raised by Forum in terms of applicable principles of general contract law, this court is constrained to hold that adequate consideration existed to support the guaranty in favor of C & M, as well as in favor of North Hills Bank, notwithstanding Forum’s argument that adequate consideration, at best, existed only in support of the guaranty in favor of North Hills Bank.

Having found no prejudicial error committed by the triers of fact, Berbiglia’s efforts to absolve itself of legal responsibility for or to mitigate the consequences of unilaterally abandoning its solemn obligation under the lease and Forum’s effort to escape responsibility to C & M under its guaranty must both fail.

Judgment affirmed.

All concur.

      . For example see: Thompson v. Allstate Insurance Company, 476 F.2d 746, 748 (5th Cir. 1973); Lowell v. Mother’s Cake & Cookie Co., 79 Cal.App.3d 13, 144 Cal.Rptr. 664, 668 (1978); Winn v. McCulloch Corporation, 60 Cal.App.3d 663, 131 Cal.Rptr. 597, 602 (1976); Griswold v. Heat Incorporated, 108 N.H. 119, 229 A.2d 183, 188 (1967); and Mitchell v. Aldrich, 122 Vt. 19, 163 A.2d 833, 836 (1960).


source: Caselaw Access Project

author: CHARLES V. BARKER, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mark David SHIVE, Defendant-Appellant.
    No. 10803.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 1979.
    Motion for Rehearing or to Transfer Denied July 23, 1979.
    Application to Transfer Denied Sept. 11,1979.
    Gregory K. Johnson, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CHARLES V. BARKER, Special Judge.

Appellant waived trial by jury and consented to trial before the court on charge of second degree burglary and stealing. Defendant was found guilty by the court and sentenced to a term of seven years on the charge of burglary and five years on the charge of stealing and said sentences were ordered to run concurrently.

Appellant seeks to have his conviction reversed on two grounds.

I.

The court erred in admitting into evidence, over the objection of the appellant, the items of personal property taken during the alleged burglary and stealing on the grounds that:

(A) Said items of property were the result of an unlawful search and seizure in that there existed no probable cause for appellant’s arrest and the subsequent search and seizure flowed from said unlawful arrest.
(B) That the voluntary permission to search was given as the result of threats and under duress and was therefore invalid.
(C) Said items of property were never brought into court, never offered into evidence by the state nor received into evidence by the court.

II.

The trial court erred in overruling appellant’s motion for judgment of acquittal at the close of the state’s case in chief and in finding appellate guilty for the reason that the evidence was not sufficient to sustain a judgment of conviction of the offense charged, in that:

(A) Appellant was not the possessor of the recently stolen property and therefore no presumption or inference of guilt can be made.
(B) Said items of property were the result of an unlawful search and seizure, in that there existed no probable cause for appellant’s arrest and the subsequent search and seizure flowed from said unlawful arrest.
(C) Said items of property were never brought into court, never offered into evidence by the state, nor received into evidence by the court.
(D) The testimony of the accomplice, Jimmie Dale Casteel, was uncorroborated, and therefore insufficient to sustain a judgment of conviction.

The uncontradicted evidence presented by the state would establish the following facts:

On December 22, 1976, Lowell Frerking and wife, Elaine Frerking, lived in Greene County, Missouri, at Route 3, Rogersville, Missouri, with their two children. On that morning Mr. Frerking left home at about 8:00. Everything was in normal condition and proper order. At about 10:00 a. m. Mrs. Frerking left home. At the time she left the condition and the contents of the house were normal. No windows or doors had been broken and everything was locked and properly secured. Prior to the time she left, the children had already departed for school.

Mrs. Frerking returned at about 12:00. Upon her arrival she noted that the front door was standing open, all the lights in the house were on and the phone had been yanked out. Mrs. Frerking immediately left home and went to Turners Station, Missouri, where she phoned the sheriff’s office. She returned to her home about 12:30 or 1:00 p. m. At the time she arrived a deputy sheriff was waiting for her at her home and shortly thereafter her husband arrived. They entered the home and found that the house had been thoroughly ransacked and discovered in the garage area of the house that the window in the door had been broken out and that the door had been opened. They learned at that time that, among other items, a Toshiba T.V., a stereo, a banjo, four slice toaster, an electric can opener, tape recorder, a camera, electric shaver, a hair drier, curling iron, hand mas-sager, two manicure sets, a leisure suit, a pocket watch and a bottle of perfume had been removed from their home.

The evidence further showed that on the morning of December 22, 1976, Lieutenant Ray Sias of the Greene County Sheriff’s Department was on patrol in the county and about 10:15 a. m. he received a radio dispatch advising him that there was a suspicious vehicle in the eastern part of the county that had stopped at a woman’s (Mrs. McGowan) house and that after she had turned up the stereo that the occupants of the automobile, which was described as a white Mustang, left the premises.

Information furnished to the officer was that this older model white Mustang was occupied by three male subjects, and that they were hippie looking. Lieutenant Sias drove toward the eastern part of the county and at about 11:20 a. m. saw a white Mustang occupied by three male subjects. Lieutenant Sias turned around and followed the Mustang and in so doing observed that an electrical cord was hanging out of the trunk and another cord was hanging out from under the door on the driver’s side. The officer also observed some T.V. or musical type instrument in the back seat. He ran a license check on the car and determined that it was owned by Junior Maples. He was advised that Junior Maples had a extensive record. Officer Sias stopped the Mustang and when he approached it he observed in the interior of the car some stereo speakers, a portable T.V., and a musical instrument case lying in the back seat and in the floor of the back seat. Lieutenant Sias asked the occupants for identity. They identified themselves as Michael Eugene Brayfield, the driver; appellant Mark Shive, the passenger in the middle; and Jimmie Casteel, the passenger on the outside. Jimmie Casteel was known to the officer and known to have a criminal record.

Lieutenant Sias asked the occupants of the Mustang who the items belonged to that were located in the car or if they knew who said items belong to. The driver Bray-field stated “no” and each of the others shook their heads indicating no. The lieutenant then arrested the three occupants for possession of stolen property. After officers arrived, the appellant, Shive, and Casteel were placed in police cars and transported to the county jail and Brayfield was permitted to drive the Mustang to the county jail. Upon arrival at the jail, Brayfield got out of the Mustang and locked the door.

On the morning of December 22, 1976, Lieutenant Charles Whitlow was on duty at the sheriff’s office. It was he that talked to Mrs. Frerking on the phone when she reported the burglary. Approximately ten minutes after receiving the information from Mrs. Frerking, describing the property that had been taken from their home in the burglary, Lieutenant Whitlow observed a white Mustang being driven onto the sheriff’s department parking lot.

He observed in the automobile a television set, some speakers and a banjo which fitted the description given him by Mrs. Frerking. Lieutenant Whitlow determined who the owner of the automobile was and went to her place of employment. The person who he contacted was Carolyn Maples and the evidence showed that she, along with her father, was the owner of the white Mustang. Lieutenant Whitlow asked Carolyn Maples to sign a voluntary permission to search the white Mustang, which she did. However she testified that she only signed the “Voluntary Permission to Search Automobile” because Lieutenant Whitlow told her that if she did not sign the necessary permission that he would obtain a court order and search the car and, if need be, would break out the windows. Lieutenant Whitlow and Mrs. Maples returned to the county jail, obtained the key, opened the car and removed all of the articles from the inside of the car. The Frerkings came to the sheriff’s office and identified the articles as belonging to them. All items were returned to the Frerkings except the television set and the banjo which were retained by the Greene County sheriff’s office.

Carolyn Maples further testified that every morning Brayfield took her to work and that she let have hive possession of the car after taking her to work. She further testified that she did not have any objection to the appellant, Mark Shive, sitting in the car.

Jimmie Casteel testified that on December 22, 1976, he was with appellant and Mike Brayfield and that they went riding out in the country looking for houses to burglarize. He stated that they went to the house where the burglary occurred, that appellant drove the car up to the house, that they busted in the back door and burglarized the house, that appellant burglarized the top floor and that they each loaded part of the items, and that shortly after they left the house they were stopped by Officer Sias.

The defendant does not claim to have had any ownership or proprietary interest in the automobile searched or the property seized. In fact he stipulated that he did not have any ownership or proprietary interest in the car. In the absence of such interest appellant lacks standing to raise any objections to the search of the Mustang. This is dispositive of any objections appellant has as to the search and renders it unnecessary to consider any other arguments attacking the legality of the search. State v. Arnold, 566 S.W.2d 185 (Mo. banc 1978) and cases cited therein; Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Appellant complains that it was error to admit testimony concerning the stolen items since the items were never brought into court, never offered into evidence nor received into evidence. Appellant does not cite any authority for this contention and we have found none. This allegation of error is without merit.

Appellant further claims that the evidence was not sufficient to sustain a conviction. This allegation of error is also without merit. Appellant was in joint possession of recently stolen property and in addition to the possession the state presented testimony of an accomplice who was present and observed and assisted appellant in the burglary and stealing. Either the recent possession of the property with the attendant circumstances as set out herein, or the direct testimony of the accomplice was sufficient, and certainly when both are present, the evidence is sufficient to support the conviction. State v. Rantz, 546 S.W.2d 200 (Mo.App.1977); State v. Wilson, 544 S.W.2d 859 (Mo.App.1976); State v. Gonzales, 533 S.W.2d 268 (Mo.App.1976).

The judgment is affirmed.

FLANIGAN, C. J., TITUS, P. J., and CAMPBELL and HENRY, Special Judges, concur.


author: FLANIGAN, Chief Judge.

text:
    MOTOR TRANSPORTATION SPRINGFIELD, Appellant, v. ORVAL DAVIS TIRE CO., INC., Respondent.
    No. 10697.
    Missouri Court of Appeals, Southern District, Division One.
    July 5, 1979.
    Motion for Rehearing or to Transfer Denied July 31, 1979.
    Application to Transfer Denied Sept. 11,1979.

      William A. R. Dalton, B. H. Clampett, Daniel, Clampett, Rittershouse, Dalton & Chaney, Springfield, for appellant.
    Harold J. Fisher, David L. Smith, Wool-sey, Fisher, Whiteaker & Stenger, Springfield, for respondent.
   FLANIGAN, Chief Judge.

Plaintiff, by written agreement, leased to defendant a 1973 International Harvester diesel tractor for a period of one year commencing February 13, 1974. Defendant used the vehicle for almost 11 months and on January 3, 1975, gave plaintiff written notice of its intent to cancel the lease. At the time of cancellation, in accordance with the provisions of the lease, defendant tendered to plaintiff “an additional 10 percent cancellation charge on the total amount invoiced to date of cancellation.” The 10 percent amounted to $975.75. The tractor was returned to plaintiff on January 10, 1975.

Plaintiff refused to cash defendant’s check representing the tendered amount of $975.75 and took the position that the amount owing plaintiff under the lease, in addition to the sums defendant had previously paid on a monthly basis, amounted to $6,994.47. The lease also provided that the lessor was entitled to “all costs and expenses, including reasonable attorney’s fees, in collecting amount due from lessee.” The parties stipulated that a reasonable attorney’s fee would be $1,200. The petition sought $6,994.47 plus attorney’s fees.

Defendant’s answer admitted execution of the written agreement and alleged that plaintiff had refused defendant’s tender of $975.75. The answer also pleaded that plaintiff’s employee, Don Boyer, had told defendant that, upon cancellation, defendant’s sole additional responsibility would be 10 percent of the total amount invoiced to date of cancellation. Defendant sought reformation of the lease so that, as reformed, it would be in accordance with Boyer’s oral representation. That representation was the factual basis upon which several defensive theories, including fraud and mutual mistake, were pleaded.

The trial court, sitting without a jury, found that the lease “plainly” called for the amount demanded by plaintiff. However, the trial court also found that the lease should be reformed “because of mutual mistake.” The judgment of the trial court awarded plaintiff $975.75. Plaintiff appeals.

Review of this court-tried case is governed by Rule 73.01 par. 3, as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Essentially, it is the position of plaintiff that the trial court erred in not granting plaintiff the relief prayed for by the petition because: (a) the provisions of the lease were plain, (b) under the undisputed evidence, defendant operated the tractor for 52,124 miles, thereby entitling plaintiff to the sum of $6,994.47 and (c) the evidence is insufficient to relieve defendant from its obligations under the lease based on the alleged defenses of fraud or mutual mistake.

Defendant’s brief as respondent here seeks to uphold the judgment of the trial court on the ground of mutual mistake.

Plaintiff’s appeal is meritorious.

The agreement between the parties consists of three parts: Vehicle Lease Agreement (four printed pages), Schedule A (one page), and Schedule B (one page). All three parts were signed on behalf of defendant by its vice president Warren Davis on February 13,1974, in Bolivar. The three parts had previously been signed, on behalf of the corporate plaintiff, by one of its officers, Laurence Kuda, in St. Louis. Pertinent portions of the three parts are set forth below.

Defendant operated the vehicle for 52,124 miles in slightly under 11 months. Under Schedule A, where the mileage is less than 100,000 per year, the rate is 18.6 cents per mile for the miles operated plus 12.9 cents per mile for the difference between 100,000 miles and the miles actually operated. The parties, and the trial court, have used the term “deficit mileage” in referring to the 12.9 cents portion of the combination rate.

Defendant’s answer claimed that paragraph B of Schedule B “superseded the deficit mileage provisions in Schedule A.” That position is untenable. Paragraph B of Schedule B replaces, as it plainly says, Article 6, Paragraph A of the vehicle lease agreement. Indeed, if the deficit mileage provisions of Schedule A were deleted, there would be no prescribed mileage rate under the instant facts because the 18.6 cents rate comes into play only if the vehicle is driven 100,000 miles in one year.

The trial court in its judgment said: “According to the contract as written, the plaintiff would be entitled to the full amount of the prayer of its petition, with interest and attorney’s fees. The contract plainly calls for ‘deficit mileage’ even though the contract is cancelled in the first year.”

Defendant in its brief as respondent has not attacked the soundness of that finding. This court agrees with the trial court that the agreement is plain. The only reasonable construction of it is that which the plaintiff claims, the trial court found, and defendant does not here dispute.

The controlling issue is whether or not certain statements made by plaintiff’s salesman, Don Boyer, to defendant’s vice president, Warren Davis, constitute a defense to plaintiff’s demand which is otherwise clearly due.

Testimony concerning the content of Boyer’s statements came from defendant’s witnesses Warren Davis, Robert Sawyer and two other employees of defendant. The trial court received the testimony of the four witnesses subject to the continuing objection of plaintiff.

Defendant employed approximately 40 people and did an annual business of $2,000,000 to $3,000,000. In its operations, in addition to the tractor leased from plaintiff, defendant used about 15 trucks which it owned. Warren Davis, who was 40 years old at the time of his negotiations with Boyer, was defendant’s vice president and “active manager.” Davis had worked for the defendant since he graduated from Drury College, 15 years earlier, with a degree in economics and business administration.

As the principal witness for defendant, Davis, on direct examination, was asked what Boyer had told Davis, prior to the signing of the agreement concerning “the obligations of [defendant] if this lease agreement were cancelled prior to it being in existence for the full year.” This testimony ensued:

“A. Well, when he tried to get us to sign the lease the first time, we refused to sign it because of the 100,000 miles so the proposal was, if there was a 10 percent clause for cancellation at any time prior to the one year, added to the lease where the only liability we had, provided we cancelled before the termination of the lease, we would pay 10 percent only, 10 percent of the billing to date, which was $9,757.00 and we would be liable for $975.00 upon the time we did terminate and cancel January 3rd, and upon return he explained that the only liability we had was the 10 percent cancellation clause, but—
Q. Go ahead.
A. If we used it a full year, run out the full twelve months we would be liable for all.
Q. Including the deficit mileage?
A. Yes. There would be no deficit mileage, just the 10 percent cancellation.
Q. If cancelled prior to the end of the year?
A. Yes.”

Defendant elicited the following testimony from its witness Robert Sawyer:

“Q. Were you present during the meeting which Mr. Warren Davis just talked about when that was signed on February 13, 1974?
A. Yes, sir, I was.
Q. What did Don Boyer say regarding the obligation of the Davis Tire Company if the lease was terminated prior to one year?
A. It would be a 10 percent penalty of all monies paid prior to that date.
Q. What, if anything, did Mr. Boyer say regarding the deficit mileage if it was terminated prior to one year?
A. If we terminated prior to one year then the 10 percent would apply; that we could pay 10 percent of the fees we had paid for rental of the truck to that date and that would terminate our contract.
Q. My question was, did he say whether or not you would be obligated to pay deficit mileage?
A. No, sir, he didn’t.
Q. He didn’t say one way or the other?
A. He said if we cancelled the contract prior to one year that we would be obligated only 10 percent, you know, of the monies paid in on rentals to that point. If we retained the unit the full year then, in turn, we would be billed for the deficit mileage.
Q. If you kept it for one year?
A. If we kept it for one year or the full contract.”

Two other witnesses of defendant claimed to have knowledge of what Boyer had told Davis. They were present while Davis and Sawyer testified. These two witnesses testified simply that they had heard the testimony of Sawyer and Davis and that “the testimony of Warren and Bob as to the conversation was what the conversation was with Boyer.”

Warren Davis testified, as a witness for the defendant, that his negotiations with Boyer took place over a period of 30 to 60 days before the agreement was signed. Davis knew that the agreement reached with plaintiff had to be submitted to plaintiff’s St. Louis office for approval. Davis admitted that he read all three parts of the agreement, signed all three parts, and did not make any changes or deletions.

Prom the foregoing it will be seen that the statements allegedly made by Boyer to Warren Davis, upon which defendant relies as its defense, consist of the opinion of a layman with regard to the legal effect of the written agreement in the event defendant, in the future, exercised its cancellation privilege.

“One cannot defeat the enforcement of a provision of a deed or contract by a mere showing that the other party misrepresented its legal effect or gave assurances that the same would not be binding or enforced.” (Emphasis added.) St. Joseph Lead Co. v. Fuhrmeister, 353 Mo. 232, 182 S.W.2d 273, 279 (1944). See also MacLeod v. Skiles, 81 Mo. 595, 604 (1884); Deming Inv. Co. v. Wasson, 192 S.W. 764, 765 (Mo. App.1917); Betts v. Harvey, 297 S.W. 995 (Mo.App.1927); England v. Houser, 178 Mo. App. 70, 163 S.W. 890 (1914).

In Higgins v. American Car Co., 324 Mo. 189, 22 S.W.2d 1043 (1929), the defendant in a personal injury action relied upon the defense of release. Plaintiff challenged the validity of the release on the ground that the agent of defendant had told plaintiff, when the release was signed, that it was “merely a receipt.” In upholding the validity of the release the supreme court said, “The rule is that the one who signs a paper without reading it, if he is able to read and understand, is guilty of such negligence in failing to inform himself of its nature that he cannot be relieved from the obligation contained in the paper thus signed, unless there was something more than mere reliance upon the statements of another as to its contents.” (Emphasis added.) Higgins at 1044. See also Sanger v. Yellow Cab Company, Inc., 486 S.W.2d 477, 481[3] (Mo. banc 1972).

“False representations as to the legal effect of an instrument are no bar to an action thereon, as a party signing such an instrument is presumed to know its contents and has no right to rely on the representations of the other party as to its legal effect.” (Emphasis added.) Hartley Realty Co. v. Casady, 332 S.W.2d 291, 293 (Mo. App.1960). See also Emily v. Bayne, 371 S.W.2d 663, 668 (Mo.App.1963). . As Emily points out, the general rule is subject to “two well-recognized exceptions: (1) [w]here there is a relation of trust and confidence between the parties . . . ; and (2) where one party is possessed, or professes to be possessed, of a superior knowledge of the law and takes advantage of the other party’s ignorance of the law to mislead him . . . .” (Emphasis added.)

In the case at bar Warren Davis was a college graduate and an experienced businessman. No confidential relationship existed between defendant and plaintiff. Davis read the agreement before signing it. No relation of trust and confidence existed between Davis and Boyer. There is no showing that Boyer, a layman, had superior knowledge of the law. Boyer, who did not testify and who had left the services of plaintiff before the trial, was not himself a party to the agreement.

It follows that the statements attributable to Boyer do not constitute fraud and defendant’s contractual obligation may not be avoided by relying upon such statements to support the defense of fraud. The trial court did not base its judgment on fraud and the appellate brief filed by defendant’s able counsel does not seek to uphold the judgment on the ground of fraud.

The question arises, may Boyer’s statements constitute a defense (and ground for the relief of reformation) upon the grounds of mutual mistake.

“[W]hen by mutual mistake a contract or other instrument is not expressed in such terms as have the force and effect that the parties intended, then it is the clear duty of the court to correct the mistake. This power of a court of equity to reform an instrument, which by reason of mistake fails to express the intention of the parties, has long been considered unquestionable. * * and a court of equity will exercise this power not only as between the original parties, but as to those claiming under them in privity * * *. However, a mistake affording ground for the relief of reformation must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. * * and that mutual mistake, in order to justify granting the relief of reformation, must be established by clear and convincing evidence.” Leimkuehler v. Shoemaker, 329 S.W.2d 726, 730 (Mo.1959).

It is arguable that if plaintiff were an individual and not a corporation and had himself made the statements, that evidence, standing alone, should not be sufficient to show a mistake on plaintiff’s part because such a holding would circumvent the foregoing cases dealing with the insufficiency of the statements when presented under the theory of fraud. Merely branding the same evidence as “mutual mistake” should not give it sufficiency which it otherwise would lack. Under the instant facts, however, the soundness of that argument need not be determined.

There is nothing in the record to show that plaintiff was mistaken as to the contents of the agreement. Plaintiffs witness Jack Amon, its vice president, pointed out that under other provisions of the agreement (not heretofore quoted) plaintiff provided “full service and full maintenance” for the diesel tractor, except for the diesel fuel itself. Plaintiff’s fixed costs were spread over a one-year period and over 100,-000 miles. Those fixed costs, including depreciation, interest and licensing expenses, were “built into” the mileage rates set forth in Schedule A.

Although the record shows the contents of Boyer’s statements, it does not show whether or not Boyer himself believed those statements. If he did not believe them, he was not mistaken. If he believed them, he was mistaken, but that is not equivalent to a showing that plaintiff was mistaken.

“Where the agreement set up as the actual one is that made by an agent of defendant, plaintiff must show that the agent had authority to make it.” 76 C.J.S. Reformation of Instruments § 28 d, p. 368. To the same effect see 66 Am.Jur.2d Reformation of Instruments § 23, p. 552.

Paragraph 4(F) recites that the agreements (all three parts) “constitute and will constitute the full, complete, absolute, and entire agreement between the OWNER and LESSEES: that there are no oral representations, agreements or understandings affecting this instrument; that any future representation, agreement, understanding or waiver, to be binding upon the parties hereto, must be reduced to writing and attached hereto . . . ”

Boyer was plaintiff’s salesman. Defendant’s witness, Warren Davis, testified that he knew that the agreement, so far as plaintiff was concerned, “had to be submitted back to St. Louis for home office approval.” Although Davis also testified “as far as we knew, [Boyer] had complete authority,” that testimony was not based on anything other than what Boyer himself had said. Davis read the agreement, including paragraph 4(F), before signing it.

“Although an agent is a competent witness to establish his own agency . agency cannot be established by proof of acts, declarations or conduct of-the alleged agent, unless same are known to the principal or are so often repeated that knowledge on the part of the principal is implied. . Thus Bitkower’s alleged statement to defendant (not shown to have been known to Wyler Watch) that ‘he was president of the Western Division, and whatever he said went,’ did not establish Bitkower’s authority.” Wyler Watch Agency v. Hooker, 280 S.W.2d 849, 855[9] (Mo.App.1955).

Provisions similar to paragraph 4(F) were considered in Werner v. Welsh Co., 247 S.W.2d 311 (Mo.App.1952); Distassio v. American United Life Ins. Co., 238 Mo.App. 279, 179 S.W.2d 610 (1944); and Curtiss Candy Co. v. National Finance Corp., 228 Mo.App. 609, 71 S.W.2d 833 (1934), and were held to be sufficient notice to the other contracting party of the limitation of the agent’s authority. “It is always competent for a principal to limit the authority of an agent and if such limitations are brought to the attention of the party with whom the agent is dealing, the power to bind the principal must be found within the limited authority of the agent.” Werner, at 313.

“The defendant insurance company, like any other principal, is responsible only for the acts, representations and agreements of an agent when done or made within the limits of his real or apparent authority. The burden was upon the plaintiff to show that White, the solicitor, had the (real or apparent) authority to make the agreement or representation which plaintiff claims . ; and proof of his authority could not be made solely by relating alleged statements made by him. . .” Dickinson v. Bankers Life & Cas. Co., 283 S.W.2d 658, 662 (Mo.App.1955).

“While a corporation ordinarily is bound by the knowledge of its agents . . . , the agent’s knowledge of his own unauthorized act, not brought home to the authorized corporate board, officer or agent, cannot be imputed to the corporation.” Trice v. Lancaster, 270 S.W.2d 519, 524 (Mo.App. 1954). See also Seibel v. Harry S. Surkamp Investment Co., 328 S.W.2d 179, 186 (Mo. App.1959).

There is no evidence that anyone employed by plaintiff, other than Boyer himself, knew that Boyer had made the statements to Davis.

The record shows that immediately prior to sending the cancellation notice Warren Davis telephoned Boyer. Boyer repeated the same statements which he allegedly made prior to the signing of the agreement. This additional circumstance does not aid defendant’s position.

.This record shows that Boyer made certain oral representations not amounting to fraud; that he lacked authority to make them; that Warren Davis read the agreement before signing it; that the agreement said, in effect, that Boyer had no authority to make oral representations; that plaintiff had no knowledge that Boyer had made such representations. Under these circumstances the statements attributable to Boyer do not furnish evidentiary support for a finding that plaintiff was mistaken with respect to the contents of the agreement. It follows that the trial court erred in finding the existence of mutual mistake.

On January 23, 1975 defendant received the invoice from plaintiff, showing the amount due under the lease to be $6,994.47. Under the agreement payment was due within seven days from receipt of invoice. This court finds that a reasonable attorney’s fee incident to the prosecution of the appeal is $500.

The judgment is reversed and the cause remanded with directions to the trial court to enter a judgment in favor of plaintiff and against the defendant in the amount of $6,994.47 together with interest at the rate of six percent per annum from January 30, 1975; plus $1,700 as the attorney’s fee; and the costs.

TITUS, P. J., and CAMPBELL and HENRY, Special Judges, concur.

      . Unless otherwise indicated, all references to Rules are to Missouri Rules of Court, V.A.M.R., and all' references to statutes are to RSMo 1969, V.A.M.S.

      .In addition to attorney’s fees and costs, the petition sought $6,994.47, which was the sum of the 10 percent cancellation charge ($975.75) and $6,018.72 based on the actual mileage of 52,124. Application of the mileage rates of 18.6 cents and 12.9 cents, set forth in Schedule A, to the mileage total of 52,124 will not produce $6,018.72. The reason for the variation is that another provision of the lease triggered a change in the mileage rate per mile shown on Schedule A based on a change in the level of the Consumer Price Index published by the U. S. Department of Labor. The parties agree that plaintiffs computations which produce the figure of $6,018.72 are accurate.

       VEHICLE LEASE AGREEMENT
      “THIS AGREEMENT is made between [plaintiff], hereinafter called OWNER, and [defendant], hereinafter called LESSEE.
      1. PROPERTY COVERED AND TERM:
      OWNER does hereby lease to LESSEE the motor vehicle or vehicles described in “Schedule A” attached hereto and made a part hereof. This lease shall become effective with respect to each vehicle on the Delivery Date for that specific vehicle as set forth in “Schedule A” for a period of one (1) year from the respective Delivery Date of each said vehicle, and from year to year thereafter until terminated as hereinafter provided.
      2. OWNER AGREES:

      3. LESSEE AGREES:
      A. To lease the vehicles described in “Schedule A” and all supplements or additions thereto and to pay OWNER all charges provided herein without deduction or set-off within seven (7) days of receipt of invoice from OWNER.

      M. To pay OWNER for all costs and expenses, including reasonable attorney’s fees, in collecting amount due from LESSEE hereunder or in enforcing any of OWNER’S rights hereunder.
      4. IT IS MUTUALLY AGREED:

      B. That mileage shall be determined from Hubometer readings taken weekly.

      F. That this agreement, together with “Schedule A”, and any supplements or additions thereto which may be executed and attached hereto hereunder, constitute and will constitute the full, complete, absolute and entire agreement between the OWNER and LESSEE; that there are no oral representations, agreements or understandings affecting this instrument; that any future representation, agreement, understanding or waiver, to be binding upon the parties hereto, must be reduced to writing and attached hereto, and that the OWNER’S failure strictly to enforce any provision of this agreement shall not be construed as a waiver thereof, or as excusing the LESSEE from future performance.

      5. MODIFICATIONS:
      SEE Schedule “B” of Vehicle Lease Agreement attached hereto.
      6. TERMINATION PRIVILEGES:
      A. After the original term of this lease as set out in Paragraph 1 herein, either party may cancel this agreement as to any part of the equipment leased hereunder by giving to the other party sixty (60) days’ written notice of intent to do so. In such event LESSEE shall purchase the cancelled vehicles for cash on the cancellation date by paying the sum of the “Original Value” less the total depreciation which has accrued for each vehicle as set forth in “Schedule A”, plus any unexpired licenses and applicable taxes except, however, that there shall be no repurchase requirement as to a designated vehicle on or after the end of the “Depreciation Period” specified in “Schedule A.”
      SCHEDULE “A” OF VEHICLE LEASE AGREEMENT
      1 . . .

      5. Vehicles leased hereunder:

        Delivery Make Type Depr. Fixed Chg. Mileage rate Date Period per week per mile
      2/13/74 19731.H. Tandem Axle 1 year None For first 100,000 miles per yr. per Model Diesel Slpr unit $.186 COF 4070 Tractor Excess of 100,000 miles per yr. per unit .097
      For any tractor as described hereon, operating less than 100,000 miles per year, the rate will be $.186 per mile for the miles operated plus $.129 per mile for the difference between 100,000 miles and the miles actually operated.
      SCHEDULE “B” OF VEHICLE
      LEASE AGREEMENT
      Dated 2/13/74
      MODIFICATIONS
      The following changes and additions were made in this agreement before it was signed by the parties hereto:
      A. . . .
      B. Agree that under Article 6 — Termination Privileges Paragraph A shall be excluded in its entirety and replaced with the following wording:
      “Owner and Lessee agree that the vehicle shown in Schedule ‘A’ is subject to cancellation at any time on giving to the other party thirty (30) days’ written notice of intent to do so. In the event the vehicle as shown in Schedule ‘A’ is cancelled by Lessee prior to one (1) year from the Delivery Date as shown in Schedule ‘A’, Lessee agrees to pay to Owner an additional 10 percent cancellation charge on the total amount invoiced to date of cancellation [hereof, on the vehicle as shown in Schedule ‘A’.”

      . “The agent, Johnson, did not make these contracts for the company nor arrange any of the conditions found therein. He had no authority to do either. It was not for the agent to construe or interpret the contract presented to the plaintiffs. This was no part of his duty, and whatever, if anything, he may have said as to the effect of the contract, or what it should cover, constituted mere opinion on his part and pertained to matters wholly outside the scope of his employment.” Adams v. Iowa Gas & Electric Co., 200 Iowa 782, 203 N.W. 229, 231 (1925).

      . See 75 A.L.R. 1032 which deals with this related topic, “Provision in Sale Contract to the Effect That Only Conditions Incorporated Therein Shall Be Binding.” See also, with respect to sales, § 400.2-202 and § 400.2-209(2).
      It is unnecessary to decide whether this appeal would have reached the same result even if the agreement did not contain paragraph 4(F). In 30 Am.Jur.2d Evidence § 1019, p. 155, it is said: “The parol evidence rule, which forbids proof of an oral agreement to add to or vary a valid written agreement, is particularly applicable where the writing contains a recital that it contains the entire agreement between the parties, and that all prior negotiations and agreements are merged therein, and that all additions to or alterations or changes in the contract must be in writing and signed by both parties. Such a stipulation announces and demonstrates the all-inclusive nature of the written instrument and furnishes additional reason for applying the parol evidence rule.” (Emphasis added.)