author: LAURENCE R. SMITH, Special Judge.

text:
    NORTHEAST MISSOURI ELECTRIC POWER COOPERATIVE, Respondent, v. William M. FULKERSON and Frances Fulkerson, Appellants.
    No. KCD 27158.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Melvin L. Kodas Professional Corp. by David Q. Reed, Kansas City, for appellants.
    Vance R. Frick, Kirksville, Rendlen, Rendlen & Ahrens by Branham Rendlen, Hannibal, for respondent.
    Before SHANGLER, P. J., and HANNA, O’LEARY, and SMITH, Special Judges.
   LAURENCE R. SMITH, Special Judge.

Defendant landowners appeal, in this condemnation case, from a judgment, following jury verdict for $6,000.

Plaintiff condemned an electrical transmission line easement diagonally through defendants’ 217 acre tract south of Kirks-ville, Missouri. The easement covered about 12 acres. The time of taking was April 24, 1969.

Defendant William Fulkerson, hereinafter known as Fulkerson, is in the real estate investment business. Fulkerson purchased the property in 1953 for investment purposes. In 1965 he asked one Winholz, who was in private city planning practice, to make a plan for his land. Winholz was engaged in making a comprehensive plan and guide for future development for the City of Kirksville at the time. In October of 1967 Fulkerson received from Winholz a plan for the development of Fulkerson’s property by the creation of a residential subdivision. Fulkerson showed the property to his bankers concerning possible financing and Fulkerson contacted various ones in the construction business with reference to the costs of developing the property. He ceased this activity in the summer of 1968. It was in June of 1968 that he first heard of the proposed condemnation.

Through the testimony of Winholz and others, defendants elicited that there was a need for a residential subdivision in the general area of defendants’ property. Defendants’ evidence established that the highest and best use of defendants’ land as of the time of the taking of the easement was for the development of a residential subdivision. Winholz testified that the demand was sufficiently intense to make the development economically feasible.

One Neudeeker, a real estate broker and developer, testified for defendants as to the factors a land developer considers in determining whether one wants to buy a particular tract, including the wishes of the client, development costs, probability of financing, and the income that could be expected. One Gibson, in the construction and land development business, also testified for the defendants as to the considerations in buying land for development. Gibson also testified as to the evaluation process he uses in determining the value of a particular tract, including the prices other lots are selling for, the cost of site grading, water and sewer, and the cost of streets.

Gibson placed a fair market value of $375,000 on defendants’ property as of the date of taking, assuming there was no easement, and placed the value at $200,000 with the easement on it. He further testified as to just how he would have developed defendant’s property as a subdivision if it had no easement.

Defendants offered no other evidence as to the value of the land before and after the taking. They offered no evidence in chief as to the sale of comparable tracts. However, as rebuttal evidence, defendants brought out that certain land near defendants’ property was sold for residential development at $1,000 an acre and that in the opinion of the buyer, defendants’ land was more valuable.

On behalf of plaintiff six different experts testified as to the value of defendants’ property before and after the taking. Their opinions were based upon comparable sales in the area and the range as to defendants’ loss was from $2787 to $3500. Plaintiff’s evidence tended to show that the highest and best use of defendants’ land was for residential use, small acreage home sites, but not for subdivision development. Two of plaintiff’s experts who have experience as developers conceded on cross-examination, in determining whether one would buy property for subdivision development, one would want to add to the cost of the tract the cost of developing the property, and to estimate the prices for which lots could be sold and the profit that could be realized.

Defendants rely on four points on this appeal.

1. Exclusion of evidence concerning costs of development and anticipated profits.

The trial court denied defendants’ offer of proof, through Fulkerson and Gibson, as to the cost of developing lots on defendants’ tract, the anticipated sales price of lots, and as to a profit of 15 to 20% being anticipated.

Defendants contend that they were thus prevented from demonstrating factually to the jury that development of the tract as a residential subdivision was economically feasible; that these computations should have been admitted in order to throw light on the fair market value of the tract because professional developers would take such computations into account in forming a judgment as to the fair market value of the tract and in determining whether they would buy the tract; that they are not seeking to recover projected developer’s profits as a part of their damages, but what they could have realized in the sale of the land as raw land to a developer; that “the developer’s method of evaluating the land” was superior to the comparable sales method because there were no other tracts in the neighborhood whose highest and best use is the same as that of the subject tract.

To support their contention, defendants principally rely on the following statement from Greystone Heights Redev. Corp. v. Nicholas Inv. Co., 500 S.W.2d 292 (Mo.App. 1973), 1. c. 299:

“The rule in condemnation cases is that all evidence should be permitted which is of a nature which an ordinarily prudent man would take into account before forming a judgment as to the market value of property he contemplates purchasing. As stated in State ex rel. Highway Comm. v. Barron, 400 S.W.2d 33 (Mo.1966):
“ ‘[T]he tendency is to admit any evidence which sheds light on the question, leaving it to the discretion of the trial court to keep it within bounds. Artificial rules of evidence which exclude from the jury matters which men consider in their everyday affairs hinder, rather than help, the arrival at a just result.’ ”

The above statement was made by this court in holding that there was no abuse in the trial court’s discretion in allowing the landowner to introduce into evidence a resolution adopted by a city council urging the State Highway Commission to locate an additional interchange for an interstate highway near the landowner’s property.

The three normal methods for arriving at fair market value have been recognized as comparable sales, cost of replacement, and capitalization of income. State ex rel. State Highway Commission v. Southern Development Co., 509 S.W.2d 18, 27 (Mo.1974). The latter two methods are not appropriate in the instant case, as they were not in Southern Development, supra. The cost of replacement method is not appropriate because the land was not improved and the capitalization of income method is not appropriate because the land was not improved and all of the land was not taken.

In Southern Development Co. the trial court allowed an expert witness for the defendant to use a “cost of development” approach rather than comparable sales. The Supreme Court ruled that such method was improper because the evidence demonstrated that the use for which the tract in question was adapted was not unique and that there was no reason why the property could not be valued on the basis of comparable sales.

Distinguished, in Southern Development Co., were other cases where the property taken had no market value in the ordinary sense, and it was appropriate under the circumstances to adopt a unique and different approach for the purpose of determining the fair market value of the property taken. One case so distinguished was City of St. Louis v. Union Quarry & Construction Co., 394 S.W.2d 300 (Mo.1965).

City of St. Louis, supra, involved the condemnation for park purposes of an abandoned rock quarry being used by its owners as a private dumping grounds, grossing $20,000 annually. The quarry was only partially filled as of the date of taking. There were no other unfilled quarries or holes in the area and there had been no sale of quarries in recent years. In this unique situation, where the land was devoted to the only apparent use to which it could be advantageously and profitably applied, and where the profits derived from its use were the chief source of its value, evidence of such profits was held to be properly admitted and was considered relevant as a criterion of the value of the property.

The Supreme Court in City of St. Louis, supra, specifically stated that the announcement in that case “is not in derogation or repudiation of the general rule” as announced many times, “that business profits are ordinarily not admissible evidence of the value of the land on which the business is located.” (1. c. 306)

As was stated in State ex rel. Kansas City Power and Light Co. v. Salmark Home Builders, Inc., 375 S.W.2d 92 (Mo. 1964), cited by both plaintiff and defendants, 1. c. 98:

“Damages which are sought on the theory of injury to the remainder of land after the taking of a part must be direct and certain at the time of the appropriation and, conversely, not remote or speculative; and loss of profits is usually regarded as too speculative and remote to be considered as a basis for ascertaining the damages in a condemnation proceeding.”

From the evidence in the instant case it appears that “comparable sales” was a proper and sufficient method for arriving at the fair market value of the land in question before and after the taking.

There was received into evidence (Plaintiff’s exhibit 2) at the trial, by stipulation and agreement, a list of sales of other property, giving their acreages, dates of sale and prices. Defendants made no objection to their use for the reason that they were not comparables. Various expert witnesses for the plaintiff used such sales and other sales in arriving at their opinions. In rebuttal, defendants introduced testimony of a Mr. Kearse as to the later sale at $1,000 an acre of land less than a mile from defendants’ tract that had been referred to in plaintiff’s evidence.

Although defendants contend that no other properties referred to in evidence were as desirable as defendants’ property for development of a subdivision, it cannot be said there was not comparable property in the general area suitable for residential subdivision that had been sold. Defendants’ property had a market value in the ordinary sense, and there was no necessity for adopting a unique or different approach for the purpose of determining fair market value. Although defendants were not allowed to demonstrate to the jury the economic feasibility of developing the tract in question as a residential subdivision by showing what profits might be made, this economic feasibility was in effect brought home to the jury by the testimony of defendants’ expert witnesses that in their opinion a substantial profit could be made, taking into account the cost of development. And the possibility of making such profits from developing the property as a residential subdivision has the effect of enhancing the value that an expert places upon the property, so that such profits are not ignored in fixing the value.

We believe there was no error in the trial court’s refusal to allow the proposed testimony as to the cost of developing lots and as to the anticipated sales prices and profits.

2. Exclusion of sales contracts.

Defendants urge that the trial court erred in excluding from evidence two contracts of sale. The contracts, both duly signed, were dated November 15, 1971, and were from defendants as sellers to Neu-decker and another as buyers. Defendants sought to admit the contracts through witness Neudecker. One of the contracts (Defendants’ exhibit 7) pertained to 25 acres of defendants’ land subject to this condemnation, for a purchase price of $50,000 payable at the time of closing of the sale. One paragraph of the contract provides:

“It is mutually agreed that this Contract of Sale is subject to Buyers’ acquiring financing to buy this tract of land and develop same and Buyers’ agree to make every conscientious effort to acquire financing for houses and/or commercial development but should they be unable to acquire financing within six months from the date of this contract, this contract shall be null and void.”

The other contract (Defendants’ exhibit 8) pertained to 50 acres of defendants’ land subject to this condemnation (but different acreage than that covered in Defendants' exhibit 7), for a purchase price of $50,000 payable at the time of closing of the sale. It contained a paragraph three like that quoted, supra, (Defendants’ exhibit 7), except the period of obtaining the financing was set at one year rather than six months.

The defendants offered to prove through Neudecker that Neudecker attempted to obtain financing through a particular lender with whom he had done business for a number of years, but that the lender turned him down because of the power line (the subject of this condemnation).

The trial court excluded the two contracts for the reason that the conditions in the contracts requiring financing for development as well as for the purchase leads to gross speculation as to what it would cost to develop.

Defendants rely principally on State ex rel. State Highway Commission v. Bowling, 414 S.W.2d 551 (Mo. banc 1967). In Bowling, involving a condemnation as of October 1963, the trial court excluded from evidence a contract of sale of nearby property dated April 1965, with a closing date of October 1971. Part of the purchase price was to be paid on the date of closing, and the balance evidenced by an unsecured note. During the six year interim the purchaser was to lease the property at an agreed monthly rental.

The Supreme Court en banc affirmed the ruling of the trial court for the reason that it would inject speculation and conjecture into the case for the jury to consider the price fixed more than six years in advance of the closing. However, in Bowling, in the majority opinion it was stated that the court cannot agree with the total exclusionary rule of contracts of sale in condemnation cases as reflected in School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860 (Mo.1946). The court stated that:

“In the determination of the value of land reasonable men in their everyday business affairs would take into consideration, substantially to the same extent as a consummated sale of comparable property, the price provided for in a bona fide and binding contract of sale entered into by a willing purchaser and seller when the sale price reflects the present value of the land contracted to be sold.” (1. c. 554)

However, in the Bowling case the court went on to say (1. c. 554):

“This does not mean, however, that all bona fide executory contracts for the sale of comparable land should be admitted into evidence.”

We believe the trial court in the instant case properly excluded the two contracts in question. The provision in each contract conditioning the agreement upon financing not just to buy the tract, but to “develop same” is not a routine standard provision for an executory contract. This gets into the complex subject of the cost of developing the tract and the provision is not specific as to just what development is intended. For all practical purposes the contract amounts to no more than an option to buy. We believe that unwarranted speculation and conjectúre would be injected into the case by allowing these contracts to be received into evidence.

In addition to the above there are additional factors that support exclusion of the contracts. Both the seller Fulkerson and the buyer Neudecker testified at the trial and although both would have been qualified, neither was asked his opinion as to the reasonable market value of the land in question before and after the taking. The contracts pertained to land included in this condemnation proceeding. Also, the contracts were entered into more than two years after the condemnation proceeding was instituted, and the contracts were in fact never performed.

3. Exclusion of Fulkerson’s testimony as to why he abandoned his subdivision development project.

Defendants assert the trial court erred in not allowing defendant Fulkerson to testify as to why he stopped his investigation concerning the cost of developing his plan for a subdivision. Defendants offered to prove he would have testified: “Because I found out that the power line was going through.”

Defendants claim this testimony should have been admitted so the jury would understand the reason for delay in development and as to why the development was in fact not accomplished.

Defendant Fulkerson was permitted to testify that he first heard of the proposed condemnation for the easement in July 1968. He also was permitted to testify that in June and August of 1968 he ceased his activity on the surveys and discussions concerning the subdivision development.

Assuming it was proper to allow the proffered question and answer, we don’t believe there was any prejudicial error in the exclusion of the testimony.

4. The giving of the Burden of Proof instruction.

Instruction number two given by the court, being MAI 3.02 (1973 Revision) states:

“The burden is on the defendants] to cause you to believe that [they have] sustained damage and the amount thereof. In determining the amount of your verdict, you must consider only the evidence and the reasonable inferences derived from the evidence. If you do not believe certain evidence or if you are unable to form a belief as to certain evidence, then you cannot consider that evidence in arriving at the amount of your verdict.” (Emphasis added)

Defendant contends that the proper instruction is to be found in MAI 35.08 (1973 Revision) which is the same as MAI 3.02, supra, except for the first sentence thereof which states:

“The burden is upon Defendants] to cause you to believe the evidence necessary to support the amount of [their] damages.” (Emphasis added)

Under “Notes on Use” under MAI 3.02 it is stated “The instruction shall be used in all eminent domain cases.”

MAI 35.08 appears as one of the Illustrations in the 1973 pocket part of the Missouri Approved Jury Instructions. It is in variance with MAI 3.02.

It was proper for the trial court to give MAI 3.02, since it is the approved instruction, rather than MAI 35.08 which is only set out as an illustration.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: RENDLEN, Judge.

license: Public Domain

text:
    WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING COMPANY, INC., Plaintiff-Appellant, v. Earl BUMILLER et al., Defendants-Respondents, and Barbara J. Osborne, Defendant-Appellant.
    Nos. 36548 and 37235.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 3, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Bernard A. Reinert, Kenney, Leritz & Reinert, David M. Duree, St. Louis, for Wilbur Waggoner, etc.
    Ernest L. Keathley, St. Louis, for Barbara J. Osborne.
    Klutho & Cody, St. Louis, for Earl & Doris Bumiller.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John S. Marsa-lek, St. Louis, for Maryland Cas. Co.
    Virgil H. Lucas, St. Louis, for Valeska Williams.
   RENDLEN, Judge.

Plaintiff Wilbur Waggoner Equipment Rental and Excavating Company, Inc. (hereinafter Waggoner) and Barbara J. Osborne, one of several defendants, separately appeal portions of the judgment in this court-tried case.

On July 17, 1969, defendant Earl Bumil-ler contracted to sell a parcel of land in the City of St. Louis owned by Bumiller and his wife Doris to Tractor-Trailer Supply Company, Inc., agreeing to demolish the existing building and bring the lots to street grade. Three days earlier, in anticipation of the sales agreement, Bumiller entered into a demolition contract with defendant Willard Hart, d/b/a B & B Building Materials and Hart Wrecking Company, (hereinafter Hart) to raze the building for $22,280. This contract bore a signature purporting to be that of Barbara J. Osborne as a contract-. ing party with Hart. On July 9, Hart had obtained a bond with Maryland Casualty Company (hereinafter Maryland) as surety securing performance of the proposed contract and the bond application form also bore the purported signature of Barbara J. Osborne. Later Hart contracted with Wag-goner to furnish men and equipment for the work but in October of that year Hart abandoned the partially finished job and Bumiller who had paid Hart $19,675 (from which Hart had paid Waggoner only $4,000) contracted with Arch Contracting Company to complete the demolition and grading.

The following resumé of the pleadings provides a background for segregating issues and identifying relationships of the parties. The suit was tried on Waggoner’s second amended petition, asserting in Count I its claim for mechanic’s lien against the land of Bumiller and for money judgment of $13,128.40 against all defendants individually and against Hart and Osborne, d/b/a B & B Building Materials and Hart Wrecking Company. The court awarded judgment of $13,128.40 against Hart and Osborne but denied plaintiff’s claims for mechanic’s lien and money judgment as to the Bumillers. Waggoner’s claim under Count II against Maryland (then a third-party defendant) as third-party beneficiary under the “surety bond” was denied.

Bumiller cross-claimed against Osborne and Hart, obtaining judgment for breach of contract against both in the amount of $7,300. Osborne answered, denying the contracts were “signed by this defendant [Osborne] or that it was signed by any other person under her direction, instruction or authority.” The parties stipulated that Barbara J. Osborne did not sign the papers purporting to bear her signature.

By third-party petition Bumiller, seeking indemnification on the performance bond, obtained judgment against Maryland in the amount of $7,300. Maryland answered, admitting suretyship but successfully cross-claimed against Hart and Osborne as principals on the bond, holding them liable in the amount of $7,300 for the judgment on Bu-miller’s third-party claim. Maryland’s cross-claim refers to defendants Hart and Osborne “individually and as partners d/b/a B & B Building Materials.”

Hart’s counter-claim charging Waggoner with negligence in razing the building was denied.

. WAGGONER’S APPEAL

In its appeal Waggoner contends the court erred: (1) in finding that plaintiff was not a third-party beneficiary under Hart’s performance bond; and (2) in refusing plaintiff’s claim for mechanic’s lien (a) because contrary to the court’s finding, the evidence showed that the demolition contract was part of an overall plan to erect a new building, and (b) the court erroneously found Doris Bumiller did not authorize Earl Bumiller to act for her when executing the sales and demolition contract.

Considering Waggoner’s contentions of third-party beneficiary status and right of direct action on the bond, we look to the language of the instruments. The bond binds Hart and Maryland to Bumiller in the sum of $22,280. The further operant portion provides:

Whereas, the principal [Hart] has entered into a certain written agreement dated the 7th day of July A.D. 1969, with the owner [Bumiller] . . .for wrecking . which agreement is or may be attached hereto for reference. Now, therefore, the condition of this obligation is such, that if the principal shall well and truly perform and carry out the covenants, terms and conditions of said agreement, this obligation to be void; otherwise to remain in full force and effect.

No express or implied obligation appears requiring Hart or Maryland to pay for labor or materials provided by others. However the demolition contract, incorporated by reference, provides that Hart “wreck” the building, obtain permits, certificates of insurance including workmen’s compensation and a completion bond. Further Bumiller was to advance $2,000 at signing and thereafter make progress payments as the work advanced—

[U]pon the presentation of the parties of the first part [Hart] of their expenses provided that receipts will be furnished for all the monies previously outlayed. (Emphasis added.)

Waggoner contends this quoted portion of the contract constitutes an implied promise to pay all laborers and materialmen, providing it (Waggoner) a direct right of action on the bond under the holding in LaSalle Iron Works, Inc. v. Largen, 410 S.W.2d 87, 92 (Mo. banc 1966). We do not agree.

The bond was executed to Bumiller as sole obligee, conditioned on Hart’s performance of the contract. Before a third party, furnishing labor or material but not named in the bond or contract nor privy to the consideration, may sue thereon, it must be found the bond was entered into for his benefit. The intention to benefit the “third-party” laborer or materialman may be found if, as found in LaSalle, supra at 89, the bond is conditioned “that the contractor shall pay all claims for labor and materials, or that he shall pay laborers and materialmen.” Explaining its holding, the court in LaSalle, supra at 90, citing 77 A.L.R., l.c. 31, stated:

[I]f there is an actual promise by the obligors to pay the third party, either by express words or by reasonable implication, there is no need to speculate for whose benefit the undertaking [bond] was made. Of course, the question of intention to benefit cannot be eliminated altogether in considering the rights of third parties, since in many cases the promise for their benefit is not clearly expressed and the meaning of the instrument is doubtful.

There the bond was conditioned that the principal should reimburse and pay the obli-gee for all outlays and expenses incurred in making good any default of the principal and further that the principal—

[SJhall pay all persons who have contracts directly with the Principal for labor or materials, . . . Supra at 88. (Emphasis added.)

This was construed as evidence of intent to confer a right of action upon materialmen and laborers against the surety and imposed “upon the surety the duty to pay them, In so far as an intent of the parties may be necessary, such intent was shown by this wording of the bond itself, there being nothing in the bond to create an ambiguity, and nothing in the facts or circumstances to the contrary.” LaSalle, supra at 92. In Ill-Mo Contractors, Inc. v. Aalcan Demolition and Contracting Co., 431 S.W.2d 165, 168[4] (Mo.1968), the court deciding a similar point under Kentucky law held a performance bond, incorporating a building contract requiring the contractor to “furnish and pay for all labor, and materials, machinery and equipment used in performing the contracts” (emphasis added), was for the benefit of materialmen bringing it within the class of cases entitling materialmen to maintain actions directly against the surety. The court distinguished the case before it from those in which the bond is “solely to secure performance of the contract, and contains no language from which an express obligation to pay third parties for materials may be derived, [in such cases] an action thereon by material-men may not be maintained.” Ill-Mo, supra at 167[2], The court, referring to LaSalle, characterized that bond as one which “clearly evidenced an intent to confer a right of action upon a materialman against a surety.” Ill-Mo, supra at 168[4],

In the case at bar we find no express or implied condition for Hart or Maryland to pay laborers or materialmen, manifesting an “intent to benefit” them. The contract makes no reference to payment by Hart to anyone in any amount, though Waggoner insists the instrument be otherwise construed. Seeking the fair intendment of the terms, we find no rule of strict construction as to the principal or surety in the context here.

The contract called for $22,280 “for completion of the work,” and it was a finished job which entitled Hart to $22,280. Though he could ask for payments “as' work progresses” the contract stated and reiterated that notwithstanding “any expenses” of Hart, or “money previously outlayed” by him, “in no instance will payments exceed the $22,280 as the contract for the completed job.” Since Bumiller’s obligation to pay was conditioned upon the finished work and in no event more than $22,280, it is clear that Hart could, on completion, demand and receive the full consideration without paying Waggoner or tendering Bumiller receipts of any kind.

The contract also permits Hart at his option to request and receive progress payments upon “presentation” of “their expenses.” The term “expenses” broadly includes labor and material which Hart himself provided by his own effort and from his inventory of materials. On presentation of a statement of account for those items of “expenses,” Hart could demand and receive progress payments. Indeed he did just that, collecting more than $19,000 and paying only $4,000 therefrom to Waggoner, and we are not informed if Hart presented receipts for the $4,000. We cannot construe this language to mean that Hart is thereby required “to pay third parties.” As to labor and material obtained by Hart from Wag-goner or others, these items were also “expenses,” and if Hart had paid therefor, by “monies previously outlayed,” receipts were to be furnished. Though this contract provision was less than artfully drawn, it cannot be strained to impose a requirement that Hart pay subcontractors and be equated to the language in LaSalle that the principal “shall pay all persons who have contracts directly with the Principal” or the language of Ill-Mo that the principal would “furnish and pay for all labor, materials, machinery and equipment used in performing the contracts.”

Waggoner suggests the language shows an intent to pay laborers and materialmen to avoid the possibility of mechanic’s liens. However as we shall see infra, the nature of the work under the contract was not lienable, negating that argument. Seeking the purpose for the inclusion of the requirement that “receipts will be furnished for all monies previously outlayed,” it could be argued this arrangement provided Bumiller a means of determining the status of the work and to assist in determining the amount of progress payments which might be claimed from time to time by Hart. Though it must be conceded the intent of the contracting parties is somewhat obscure, we cannot conclude as a matter of law that a third-party beneficiary status for materialmen and laborers was intended. While nothing heretofore said diminishes Hart’s and Osborne’s legal obligation to pay laborers and materialmen under their separate employment agreements, the mere existence of this legal duty is not enough to transmute the bond to “third-party” beneficiaries contract.

Finally Waggoner argues that to avoid obligations to materialmen and laborers the surety must expressly exclude liability to them in the bond, referring to dictum from LaSalle, supra at 91, wherein the court, discussing a hypothetical situation stated:

If the surety wishes to exclude this type of liability it may consider such a bond as is shown in Bourrett v. W. M. Bride Construction Company, 248 Iowa 1080, 84 N.W.2d 4, where all rights of action by any one except the named obligee in the bond were expressly excluded.

The cited language suggests sureties may wish to consider use of such terms, but neither LaSalle nor the later Ill-Mo impose the requirement of express exclusion provisions in the bond to avoid such liability by the surety. Appellant’s first point is denied.

Waggoner next contends the trial court erred denying its claim for mechanic’s lien as the evidence disclosed the plan to raze the existing structure was more than a contract for demolition, arguing it was instead part of an overall scheme to erect a new building. When the work was performed the applicable statute, § 429.010, RSMo.1969, V.A.M.S., in pertinent part provided a right of lien on the land or improvements of any owner for:

Every — . . . person, who shall . perform any . . . labor upon, or furnish any material, . . . for any building, erection or improvements upon land, or for repairing the same, under . any contract with the owner or . his . . . contractor '. .

It has long been held that the lien law should be liberally construed to the end of advancing its remedial purpose. Ladue Contracting Co. v. Land Development Co., 337 S.W.2d 578, 584[5] (Mo.App.1960). However, “the statute does not go so far as to authorize a lien on the real estate to which it is attached for the mere wrecking and removal of a building. We may go further and say that the statute gives no lien on the real estate in any case except as correlative to a lien on a building, erection or improvement, and then upon the theory that the building, erection or improvement has been a benefit to the realty and enhanced its value.” Arthur Morgan Trucking Co. v. Shartzer, 237 Mo.App. 535, 174 S.W.2d 226, 227[1, 2] (1943). In that case the court found removal of an old building from the defendant’s property was part of an indivisible contract for the improvement of the owner’s and lessee’s property including the erection of a new building. The lien attached because “[the] work was a part and parcel of the whole scheme involved in the erection of a new building, and was within the contemplation of both the owner and lessees, on the one part, and the contractor, on the other part, and expressly provided for in their contract.” Shartzer, supra at 227-8. (Emphasis added.) Holding further that this would be true though such work be done or ordered at different times. The court concluded the controlling question is—

Was it a part of the owner’s scheme and plan to proceed without interruption or delay and as one project with the erection of a new building? If that was the intention . . . the claim is . . .a lienable one. ... On the other hand, work or labor performed for the sole purpose of wrecking and removing an old building, with no definite and formed plan or intention of proceeding without delay or interruption with a new building . . . would not constitute a lienable claim. Shartzer, supra at 228[3]. (Emphasis added.)

Bumiller entered the contract to raze the building and level the lot as a condition of sale. The sale contract to the Tractor-Trailer Supply Company, Inc., containing that condition in no way suggests an intention of the owner to then or at any time thereafter make improvements on the land. H. Peter Bly, an officer of the Tractor-Trailer Supply Company, Inc., called by Waggoner, testified his company contracted to purchase the land intending to build on the land by extending their present building from the adjoining lot and to do so when the purchase was completed. However, he testified these were “verbal plans” and that the matter had been discussed with architects but he was unsure if a contractor had been contacted at that time. In effect, Waggoner now urges the intent of a prospective purchaser be imputed to the owner and a finding that the contract for demolition was in fact an integral part of plans for constructing improvements on the land. The only evidence was a contract for sale requiring the seller to demolish an existing building and a present, though not clearly formed nor communicated, intention of the buyer to separately contract in the future for erection of a building. We believe the trial court was correct in not finding there was a fully-formed and integral plan as contemplated in Arthur Morgan Trucking Co. v. Shartzer, supra.

Vasques v. Village Center, Inc., 362 S.W.2d 588, 593—4[9] (Mo.1962) cited by appellant, involved a successful mechanic’s lien claim for excavating and grading in connection with construction of home sites and commercial property. The work was done in accordance with specification, with stakes and prescribed elevation under an overall plan for the development of the tract. The case is distinguishable as there we find a fully-formed and integral plan to erect a group of buildings on the site, and thus a lienable claim. For the same reason we distinguish Ladue Contracting Co. v. Land Development Co., supra, in which this court found that grading and paving a street in a subdivision-building project was lienable work under the statute. Again it was the fully-formed integral plan for erection of improvements on the land which differentiates Ladue from the case at bar. Waggoner’s second point must be denied, rendering moot his third contention pertaining to the trial court’s additional reason for denying the lien. The judgment as to appellant Wilbur Waggoner Equipment is affirmed.

OSBORNE’S APPEAL

Barbara J. Osborne appeals from the judgments of Bumiller and Maryland alleging: (1) insufficiency of proof of partnership, and (2) forgery with respect to the contract and bond application. As previously noted, the parties stipulated that Barbara J. Osborne did not sign the papers purporting to bear her signature and from this she contends neither the contract nor bond obligated her. The purported signature of Osborne and the established signature of Willard Hart appear on both documents as representatives of a single promis- or. If in fact they were partners and if either signed the documents, both were obligated under the contract. See Deichmann v. Aronoff, 296 S.W.2d 171, 178[2] (Mo.App. 1956). The want of Osborne’s signature or its presence as a forgery is not controlling.

The court found as a fact and conclusion of law that “that defendant Willard Hart d/b/a B & B Building Materials and Hart Wrecking Company and defendant Barbara J. Osborne were at all pertinent times herein mentioned partners in these enterprises.” Osborne contends there was no evidence adduced supporting the finding and we note the court did not state the basis for its conclusion. Maryland on the other hand argues there was no contested issue of partnership because Osborne failed to specifically deny its existence as alleged in the pleadings. Rule 55.13, V.A.M.R., provides:

It shall be sufficient to aver the ultimate fact of the capacity of a party to . be sued ... or the legal existence of . . .an organized association of persons that is made a party. When a person desires to raise an issue as to the legal existence of any party or the capacity of any party to . . .be sued or the authority of a party to . . .be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party. (Emphasis added.)

Rule 55.14 (formerly 55.16) derived from § 509.150, RSMo.1969, provides specifically in the case of partnership that:

When parties sue or are sued as a partnership, and the names of the partners are set forth in the petition or counterclaim, the existence of the partnership shall be deemed confessed unless it be denied by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. (Emphasis added.)

Appellant Osborne does not dispute that she failed to deny by specific negative averment the fact of partnership but argues that Waggoner’s petition did not sufficiently plead partnership to bring Rule 55.14 into operation. Further that the allegations of partnership in Maryland’s and Bumiller’s cross-claims may be met by simple denial because the Rule (55.14) specifies only petitions and counter-claims, excluding all other forms of pleading from the requirement of “specific negative averment.” For reasons hereafter discussed, we hold otherwise.

Waggoner’s several amended petitions referred to Osborne in the following fashion. “Barbara J. Osborne, individually and d/b/a the B & B Building Materials and the Hart Wrecking Company and Willard Hart, individually and d/b/a the B & B Building Materials and the Hart Wrecking Company,” and also as “defendants Willard Hart and Barbara J. Osborne, doing business as the B & B Building Materials and the Hart Wrecking Company.” Bumiller’s cross-claim referred to “defendants Barbara Osborne and Willard Hart, individually and doing business as B & B Building Materials and Hart Wrecking Company.” In the original and amended cross-claim of third-party defendant Maryland Casualty Company, against Osborne, it is alleged “defendants Hart and Osborne, individually and as partners doing business as B & B Building Materials, agreed to indemnify cross-claimant on the bond.” (Emphasis added.) It is the purpose of Rule 55.14 to save parties the difficult and often expensive process of proving the existence of a partnership when that issue is not contested. This purpose extends equally to cross-claims and third-party claims as to original petitions and counter-claims. The cases cited by Osborne are to the effect that where the General Assembly specifically enumerates things or areas to be covered by a statute (in this case a Supreme Court Rule) it implicitly rejects areas or things not so listed, under the general rule of construction “ex-pressio unius est exclusio alterius.” However, this general principle of construction does not control where the logic of the Rule extends to all forms of pleadings and the language does not clearly exclude any. We conclude Rule 55.14 does apply to allegations of Maryland’s and Bumiller’s cross-claim and the clear allegation of partnership in Maryland’s pleadings to which no specific denial was made, becomes proof in the case, available for all purposes since, as a general rule, “[a]n admission on the pleadings is an admission for all the purposes of the cause.” 71 C.J.S. Pleadings § 160, p. 335, sufficient to support the trial court’s finding and conclusion.

The court’s finding and conclusion are also justified because Waggoner’s petition and Bumiller’s cross-claim, though not containing the word “partnership” adequately pleaded the fact.

“The general rule is that where persons are sued as partners, the complaint should allege the fact of their partnership. Such allegation in the form authorized by statute is sufficient, and generally speaking it need not follow any set form of words. It has been held that an allegation will be treated as alleging by implication every fact which can be implied from its averments by the most liberal in-tendment.” (Emphasis added.) 68 C.J.S. Partnership § 221, pp. 708-709. “In actions against a partnership, the general rule is that it is sufficient to designate the names of the parties, and it is unnecessary to allege the existence of a partnership . . ” 60 Am.Jur.2d Partnership, § 333, p. 223.

In Hatton v. Sidman, 169 S.W.2d 91, 99[10] (Mo.App.1943), one defendant challenged the sufficiency of the evidence to prove partnership. The issue turned on whether partnership had been properly raised in plaintiff’s petition and if so specifically denied by this defendant. The court examined the allegation of partnership concluding it was sufficiently stated: “This suit, as instituted, shows that defendants Edward Sidman and Halo Mae Sidman were jointly sued as individuals doing business as Sidman & Son. In other words, they were sued as partners . . . [citing Mehlstaub v. Michael, 221 Mo.App. 807, 287 S.W. 1079 in which] ... it was held that a petition which stated that the defendants therein operated the business as a firm was a sufficient allegation that the defendants were operating the business as a partnership.” (Emphasis added.) Because defendants had not put the fact of such partnership in issue by proper pleading, the fact of partnership was deemed admitted.

Appellant Osborne for her final point contends she was not liable “because the forgery of her name on those two documents by defendant Willard Hart (if he did commit the forgery) was a willful, wanton and malicious tort and a criminal act which relieved her of liability as a partner of defendant Hart.” This contention is without merit. Osborne and Hart were partners, thus her liability under the contracts remained whether signed by her or not. Deichman v. Aronoff, supra, and no tort or criminal act has been committed that would relieve her of such liability. The cases cited by appellant involve torts committed by a partner clearly outside the scope of the partnership business and are inapposite here. Appellant’s final point is denied.

The judgment is affirmed as to all parties.

WEIER, P. J., and McMILLIAN, J., concur.

      . Willard Hart was the owner and operator of B & B Building Materials and Hart Wrecking Company with Barbara J. Osborne (as found by the trial court) his partner.

      . Except as otherwise noted, pleadings directed to Barbara J. Osborne and Willard Hart name them individually and d/b/a B & B Building Materials and Hart Wrecking Company.

      . Willard Hart died October 20, 1974, and Va-leska H. Williams as administratrix was submitted in his stead for all actions herein.

      . “Words of ‘condition’ are not words of ‘promise’ in form; but in the case of penal bond they must be construed to be words of promise, inasmuch as the only express words of promise are those in which payment of the penal sum is promised.” LaSalle Iron Works, Inc. v. Lar-gen, 410 S.W.2d 87, 91 (Mo. banc 1966).

      .Relevant portions of the entire contract with emphasis added are as follows:
      “It is hereby agreed by and between WILLARD HART and BARBARA J. OSBORNE, doing business as the B & B BUILDING MATERIALS and the HART WRECKING COMPANY, parties of the first part, and EARL BUMILLER, owner of property ... in the City of St. Louis, Missouri, party of the second part, that the parties of the first part will wreck the

        entire building improvements on the said premises subject to the following stipulations and agreements:
      (1) All salvage . . .
      (2) Party of the first part will haul away all rubbish and debris and leave the job finished and graded to a ground level with the adjacent streets and property, and all water taps will be destroyed and all other utility hazards will be handled in accordance with City specifications. The said parties of the first part will obtain all the permits for this work as required by the City authorities and ordinances.
      (3) The parties of the first part will furnish a completion bond to the party of the second part in the amount of Twenty-Two Thousand Two Hundred Eighty Dollars ($22,280.00).
      (4) The parties of the first part will furnish a Certificate of Public Liability Insurance Public Liability, and a property damage insurance certificate . . and will also furnish Certificate of Workmen’s Compensation Insurance.
      (5) Should the two billboards
      (6)The party of the second part will pay the parties of the first part Twenty-Two Thousand Two Hundred Eighty Dollars ($22,280.00) for the completion of this work to be paid as follows:
      Two Thousand Dollars ($2,000.00) to be advanced at the time this agreement is signed for the necessary building permits. Thereafter party of the second part will pay additional sums as the work progresses upon the presentation of the parties of the first part of their expenses provided that receipts will be furnished for all the monies previously outlayed. It is understood that in no instance will payments exceed the Twenty-Two Thousand Two Hundred Eighty Dollars ($22,280.00) as the contract price for the completed job.

      IN WITNESS WHEREOF the parties have hereunto affixed their hands and seals this 14th day of July, 1969.
      ¿si_WILLARD HART
      /s/_BARBARA J. OSBORNE
      /s/_EARL BUMILLER”

      . Our reference here to Hart includes all second parties named in the contract.

      . The contract term “their” refers to Hart, Osborne and the named partnerships.

      . On one occasion Bumiller wrote Hart a check requiring him to endorse it to Waggoner, who argues this shows an intent of the parties that subcontractors must be paid from the progress payments. The language of the contract expresses no such intent of the parties. Further the single isolated incident, itself ambiguous, does not mandate the conclusion suggested by appellant nor change the result.

      . The law of 1971, p. 424, § 429.015, added provisions granting liens to persons performing work or furnishing materials “for the purpose ' of demolishing or razing a building or structure This statutory change gives a lien remedy usually denied laborers and material-men under demolition contracts.

      . Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo. 1965); Parvey v. Humane Society of Missouri, 343 S.W.2d 678, 681 (Mo.App. 1961); State ex rel. Wright v. Carter, 319 S.W.2d 596 (Mo.banc 1958); Mack Motor Truck Corp. v. Wolfe, 303 S.W.2d 697 (Mo. App.1957). These cases deal primarily with the construction of penal statutes. None has application to a rule of pleading.


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Garfield COX, Defendant-Appellant.
    No. 36903.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 10, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      William Shaw, Public Defender, Richard L. Rodemeyer, Asst. Public Defender, Clayton, for defendant-appellant.
    Courtney Goodman, Jr., Pros. Atty., and Frank J. Kaveney, Asst. Pros. Atty., Clayton, John C. Danforth, Atty. Gen., Preston Dean, Paul Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Donald Garfield Cox, was charged, tried and found guilty by a jury of murder in the first degree and sentenced by the court to life imprisonment. § 559.010, RSMo 1969. He appeals. On this appeal he raises two contentions: that the trial court erred (1) in permitting the state on redirect examination to interrogate a state’s witness concerning prior statements which were consistent with direct examination but inconsistent with statements made on cross-examination, and (2) in precluding the defendant from testifying as to his “movements and location” on the day of the alleged murder for the reason that the defendant or his counsel did not comply with an order to disclose a defense of alibi. Rule 25.34(A)(5). For reasons hereinafter stated, we affirm the judgment of conviction.

On December 27,1973, Mr. Edward Meix-ner was killed. The appellant, Donald Cox, .was arrested for the murder on the evening of December 27, 1973, later released and then rearrested on February 17, 1974, for the offense. On March 18, 1974, he was indicted but was subsequently charged by information in lieu of indictment with two prior convictions and with the murder of Meixner. The information charged that defendant Cox assaulted Meixner with a “board, bottle and knife” and that the victim died therefrom.

Prior to trial, the state, on July 15, 1974, filed its motion to produce and requested among other matters:

“The names and addresses of witnesses to any alibi defense as well as the location of such alibi defense. Rule 25.-34(A)(5). Said alibi defense is in regard to an alleged incident which occurred on December 27, 1973 . . . between the hours of 9:00 a. m., and 3:39 P.M. Rule 25.34(A)(5).”

The motion was sustained. On September 27, 1974, defendant’s answer to the state’s request for disclosure was filed, which read in pertinent part as follows:

“5(a) Any intent of the Defendant to rely on the defense of alibi: Yes.
“5(b) Location where Defendant claims to have been: Location uncertain.
“5(c) Names and addresses of any witnesses to establish said alibi: None other than all State’s witnesses.”

Apparently not satisfied with this response, the state moved to compel defendant to notify the state and the court “of any intent to rely on the defense of alibi and the location where the Defendant claims to have been and the names and addresses of any witnesses to establish said alibi . . ..” This motion was also sustained. In response, defense counsel, on November 22, 1974, forwarded a letter to the prosecutor which stated:

“This is notification that the defense may assert that Defendant was not present at the scene of the crime when it occurred. His location is uncertain. Other than the Defendant, should he testify, I have no witnesses or addresses to give you.” (Emphasis added.)

Trial was held in December, 1974. The jury could reasonably find the following facts.

Mr. Meixner lived in a “shack” in a wooded area in Berkeley, St. Louis County. He had been known to be a heavy drinker. On the morning of December 27, 1973, Mr. Meixner was driven to the home of his friend, Roger Melton, who lived a few blocks away from the deceased. When he came to Melton’s home, Meixner “was carrying a bottle and drinking . . ..” “[H]e wasn’t loaded but he was getting that way pretty fast . . ..” After a little while, Melton and Meixner drove to Meix-ner’s house in Melton’s car and “drove right in the drive-way or in the yard, more or less.” On the way to Meixner’s house they saw a pickup truck in which were Jack Hall and the appellant, Donald Cox. Hall and Cox, also acquaintances of Meixner, pulled into the Meixner driveway. Hall and Cox “got out of the pickup truck and got in the back of my [Melton’s] car.” Melton was in the driver’s seat, Meixner was in the front passenger’s seat, Hall was sitting behind Melton and Cox behind Meixner. They all sat there drinking. There was some discussion about going to a tavern in Pine Lawn. According to Mr. Melton, “Cox said, will you [Meixner] pay for the drinks when we get down there?” Meixner “said, yes, I’ve got the stuff to do it with.” With that, Melton testified that “Ed [Meixner] was pulling something out of his pocket and putting his hand back in his pocket. . . ” According to Jack Hall, when Cox asked Meixner if he would buy, “Ed says ‘Yes’ . he had a little bit of money folded, you know, green, folded in a thing like that, and when he pulled it out Don [appellant] kind of raised up in the seat . ..” Hall saw the money and saw “Don raise up and look just like that at the money.” Eventually, Hall and the appellant left in the pickup truck. And Meixner left the Melton automobile and went into his house. Melton waited until Meixner got into the house, “decided to go in and see if he was all right and he was sitting in a chair with his head over on the cot and I [Melton] asked him if he was all right and he said, yes, and so I put a little wood in the stove and turned around and went home.”

Prior to the events of the morning of December 27, 1973, and before Messrs. Hall and Cox met Melton and Meixner at Meix-ner’s driveway, Hall and Cox had been at a tavern that night until about 2:00 a. m. At about 2:00 a. m., early in the morning of the 27th, the two men went to the home of Barbara Finley, a friend of Cox’s, who resided on Springdale Ave. Hall went to bed there, but Cox and Barbara Finley sat up “talking.” About 7:00 a. m. Hall and Cox left the Finley home, “took a ride over through Ferguson” and that is when they met Melton and Meixner in Meixner’s driveway. They sat there and drank “maybe forty-five . . . minutes and then we took Don [Cox] to Springdale [Barbara Finley’s home].” Hall left Cox off and “went to Smith Brothers Junk Yard.” “That was about 9:30 or 10:00.” When Cox returned to Barbara’s home, according to Barbara Finley, “[h]e asked me for the butcher knife.” She told him it was “underneath the mattress, under my. bed.” After he asked for the knife “[h]e stuck it in his pants and went out the door.” At the time, he was wearing a blue jean jacket and boots. When he left Barbara’s home, she saw him go “across and down the street across Midway.”

Sometime later, Cox returned to Barbara’s home. On direct examination Barbara Finley testified that when Cox returned she heard him tell her teen-age daughter, Brenda, to “wash his clothes or something.” He came in “my front room and sat in the chair.” When he returned, Barbara noticed blood on his boots and “a spot of blood” on the pocket flap and sleeve of his jacket. He was then a “lot drunker." He went to the chair and fell asleep.

On direct examination Barbara Finley was interrogated about the butcher knife found at the scene of the murder. She said, “It looks like it. It looks like it. Can’t tell too much.”

She was extensively cross-examined concerning the knife and other matters. She indicated that she bought a knife some two weeks before Christmas at National food stores. The knife introduced as an exhibit had “lines or stripes horizontally” on the blade [8¼" X 1¼"] but she did not know whether the knife she purchased had such stripes. “[The knife] looks like my butcher knife, but I don’t know what it had on it.” She also indicated that her knife had the word “Hickory” on it, but the exhibit did not, and that her knife was a new knife but the exhibit did not look like a new knife. On cross examination also, she was unsure whether she saw Cox take the knife and put in it his trousers.

After the extensive cross-examination, the prosecutor claimed “surprise” and requested permission to cross-examine her and show prior consistent statements that she had made on videotape in February, 1974, and in a statement made to him earlier. Defense counsel objected on the ground that he had, prior to Barbara’s testimony, informed the prosecutor that she would not be able to identify the knife on direct so that the prosecutor could not claim “surprise.” During the colloquy, outside the hearing of the jury, the court stated:

“He [the prosecutor] doesn’t have to claim surprise to rehabilitate her [Barbara] with a prior consistent statement. Perhaps he’s using the wrong terminology by using surprise as far as he can rehabilitate her with a prior consistent statement.”

The court therefore ruled that the prosecutor could interrogate Barbara Finley concerning (a) “[w]hether it is or is not her knife,” and (b) whether “she saw him take the knife from the mattress and put it in his pants,” and whether he left with the knife.

On redirect examination, the prosecutor then brought out that Barbara had made a videotaped statement to the police in February, 1974, in which she stated that the knife was her knife — “ ‘Yes sir, I’m pretty sure it is my knife’ ” — and that the exhibit was the knife shown to her in the videotaped statement. She also stated on the videotape that “ ‘Don asked me where the butcher knife was. He wanted it for something. And I told him it was underneath the mattress on my bed. He got [it], and stuck it down the front of his pants, and then he went out the front door.’ ” The prosecutor also brought out that in a statement made to him she stated, “ ‘Yes sir, I’m pretty sure it is my knife.’ ”

One of the witnesses for the state was Barbara Finley’s young daughter — Brenda. Brenda elaborated on the incidents of December 27. On that date she lived with her mother, Barbara. When she awoke, Hall and Cox were in the house. She obtained a bottle of “whiskey or something,” gave it to Don and went back to bed. Later, she saw Cox get out of Hall’s truck and go to the neighbor’s next door, Norma Johnson, and then come back to the Finley home. She heard Cox ask her mother for the knife and saw him lift up the mattress and put his hand under it but did not see him actually get the knife because she ran to Norma’s. She was with her mother when she purchased the knife some two weeks earlier. When shown the exhibit, she recognized it as “[o]ur knife.” While she was at Norma’s she saw Cox walking “[d]own towards these houses here.” When he returned to the Finley home, he told her that he had gone down the street and “stabbed some kid or hoodlum.” He asked her to wash his clothes or he would “beat” her. She washed his shirt and trousers in the bathtub. As she put the pants in the tub she saw “[s]omething red on his pants.” On cross-examination, she persisted that the knife introduced as an exhibit was the knife purchased by her mother.

Late in the afternoon on December 27, 1973, Mr. Melton returned to Meixner⅛ home to “check on Ed.” When he arrived, Meixner was “face down on the floor in a pool of blood.” There were two gashes on the left side of his head and blood was “gushing out.” He was breathing, and Melton placed a coat under his head. Nearby, there was a root beer bottle and glass. Melton told a boy who was with him to “run and get some help.” Officer Benjamin Comeau came to the Meixner home, found Meixner lying on the floor and found a board (approximately one inch by four inches by forty-two inches), a bottle and a knife at the scene. The officer attempted to take the victim’s pulse but could not feel one. He ordered an ambulance and went to the hospital with the victim. He was present when the hospital physician examined Meixner. He was dead on arrival.

An autopsy was performed. The victim was found to have type “0” blood. There were full lacerations on the face and scalp and a long transverse laceration on the forehead — a gaping cut on the forehead— which was the major wound. The cause of death was a “skull fracture and the contusion to the brain.” The autopsy also showed that Meixner was stabbed. The stab wound, almost at a straight angle, measured seven inches. The doctor who performed the autopsy testified that the board “could have been” the object which caused the wound on the forehead, and opined that the knife “would have been the weapon” that caused the chest wound.

After Officer Comeau left the Meixner home, other investigative officers came. Officer Terrence Carty came and found, among other things, the board, knife and some fragments of glass on the floor. He dusted for fingerprints but with negative results. He took the board, knife and some fragments of glass found in the general area of the doorway.

At about 5:30 p. m. on December 27, police officers then went to the Finley home and found Cox. He was sleeping and was undressed except for his shorts. When Barbara went to get his trousers, one of the officers heard Cox say that they were wet, so that he did not wear the light blue trousers to the station. Barbara Finley testified that at about 5:30 p. m. the officers came to her home. Cox was undressed and Barbara went to get him some clothes. She got his “light blue” trousers, but Cox told her “they were wet.” “He just said those are wet, get me a different pair. Get rid of them.” After the police left, Barbara testified she threw “them in the trash can.” Another officer — Officer Gerald Thake— while at the home saw blood on the jacket.

The police took Cox to the police station. At the station that evening, Cox made a videotaped statement after being advised of his rights. In that statement he indicated that he had been drinking the day before with Hall, that they went to Meixner’s driveway that morning and sat in the car with Melton and Meixner, drank and joked, left and went to Barbara’s, and he, Cox, went to bed. He had known Meixner for four or five years. When asked to explain-the blood on his clothing and shoes, he stated that he had had a fight with a man at Shoppers Fair and “kicked him in his head.” He explained that that morning he was driving a white Mustang which belonged to a married girlfriend whose name he’d “rather not say” and went to Stone’s Drug Store about 8:00 a. m. to buy a “six pack,” and upon leaving he had a fight with a man who “kept blowin’ his horn.” After the videotaped statement, apparently Cox was released, because he was rearrested on February 17, 1974, and taken into custody.

At trial, the state called an employee of a security systems company who testified that Stone’s Drug Store’s alarm system had not been disengaged until 8:21 a. m. on the morning of December 27th. The state also called an employee of the store who indicated the store does not open until 9:00 a. m. Both Jack Hall and Barbara Finley testified that they did not see Cox drive a white Mustang that day.

The state also introduced extensive expert testimony which tended to prove that (1) Cox had type “A” blood, and Meix-ner had type “O” blood, (2) Cox’s jacket had type “0” blood on it, (3) type “0” blood was found on Cox’s shoe laces, (4) inside the right boot were found two small pieces of glass which had the same density and refractive index as a piece of glass found in the Meixner house, (5) type “O” blood was found on the knife and board, (6) a glass fragment was found “adhering to the mud on [Cox’s] right boot,” and (7) neutron activation analysis performed at the University of Missouri indicated that the glass found on the boot and glass found in Meixner’s house were from a “common origin.”

After the state rested its case and after the court recessed for the day, the court addressed Mr. Cox. The judge informed him that it was his decision whether to take the stand, but advised him that in the event “you do” the prosecutor has “every right to bring out on cross-examination concerning your two prior convictions” for robbery and burglary for which he was sentenced to six and five years respectively. He advised him that he had a right not to testify and that no comment may be made on his failure to testify. Mr. Cox indicated that he did not wish to testify and that it was a combined decision of himself and his attorney.

A discussion then ensued concerning failure to comply with the state’s motion to produce an alibi defense. The prosecutor then “suggested] that in view of last week’s ruling concerning the extent of his [Cox] testimony . . . since Defendant supplied the Prosecuting Attorney with no location or alibi location, that the Court’s ruling . . . was that he would not be allowed to testify that he was anywhere ■ else on that day, is that correct?” The prosecutor raised the point concerning the court’s earlier ruling to “make sure” Cox was aware of the ruling in making his decision not to testify. The court inquired of Cox whether he was aware that his counsel filed a statement “to the effect that perhaps you were elsewhere at the time this occurred. . . . ” Cox replied that he was.

The next day in chambers and before the instructions were read, the discussion concerning the motion to produce continued. The court stated that after the motion to produce was sustained, there was a hearing in chambers and the defendant was ordered, through counsel, to give the names and addresses of any and all alibi witnesses. Cox was advised of this order. As a result of this order, defense counsel wrote the letter of November 22, 1974, which indicated that the defense “may” assert the defendant was not present at the scene of the crime.

In the colloquy, the court addressed Mr. Cox: “Mr. Cox, I understand at this time that you have decided that you are not going to testify in your own defense, is that correct, sir?” He replied, “Yes, sir.” “Is that your decision based solely or partly on that Order?” Cox replied: “Under the advisement of my attorney sir.” But counsel added: “Your Honor, on the basis of the Order to Produce particular places where he was.”

The court then inquired whether counsel would reveal the name of the married woman who owned the white Mustang. Defense counsel replied that “with great respect . . . it is my opinion that this is a very circumstantial [sic] question of the law and [the prosecutor] would like to have it tested and so would I.”

The court then stated that “I don’t think you can say I was with some person on such and such a date and know that person’s name and address, but we are not going to give it to you. . . . ” The court again informed Mr. Cox that he had a right to testify and that “other than your specific location and the person you were with you would be free to testify to anything else that took place on that day. . ” Hence, in effect, the court indicated that since the defendant did not comply with the order to produce the alibi defense, the defendant was precluded from testifying only as to any specific location where he may have been on the date of the murder and as to the person he was allegedly with on that date.

The colloquy in chambers concluded with the following:

“THE COURT: So it is your decision not to testify, is that correct?
MR. COX: Yes, I understand. Under the advisement of my attorney, no, I do not wish to testify.”

The defendant did not testify. The case was concluded. Instructions were read and the cause argued. During the argument the prosecutor and defense counsel, among other matters, argued Barbara Finley’s testimony concerning the knife. The jury deliberated and found the defendant guilty of murder in the first degree. In due time a motion for new trial was filed.

After the motion for new trial was overruled and allocution given, the court sentenced the defendant to life imprisonment.

On this appeal, appellant-Cox makes two contentions. He contends that the court erred in (1) permitting the prosecutor on redirect examination to “impeach” Barbara Finley by the use of her prior statements concerning the identification of the knife because such statements were hearsay and in permitting the prosecutor to argue extrajudicial statements to the jury as “substantive evidence,” and (2) excluding testimony by the defendant as to his “movements and location” on the day of the alleged murder because defendant was (a) foreclosed from explaining his innocence in any “convincing and detailed way to the jury,” and (b) unable to take the witness stand in any effective manner and hence was unable to testify.

As to the first contention, he argues that the law of Missouri is that a party is not permitted to impeach his own witness unless “surprised” by his witness’ testimony and unless that witness in effect becomes a witness for the adverse side. This is, of course, the general principle of law. State v. Woodard, supra, 499 S.W.2d at 563, and State v. Davis, (No. 36,768, Mo.App., St.L. Dist., June 15, 1976).

The principle “thoughtfully established” was clearly enunciated in State v. Drummins, 274 Mo. 632, 204 S.W. 271, 276 (1918):

“ . . . We held in the case of State v. Bowen, 263 Mo. [279] loc. cit. 280, 172 S.W. 367, that it is not sufficient to warrant a party who puts a witness on the stand, in impeaching such witness (by showing extrajudicial statements contradictory of the testimony of the witness upon the stand), that the witness merely fails or refuses to tell the facts which he had theretofore related extrajudicially or fails to tell all of such facts, but, in order to warrant impeachment in the mode stated, the witness must go further, and by relating wholly contradictory facts become in effect a witness for the adverse side. In the latter event the party calling the witness is entitled to show that he was misled and entrapped by the witness’ former words and attitude into calling the adverse witness. . . . ”

Quoted in State v. Woodard, supra, 499 S.W.2d at 563 and citing State v. Castino, 264 S.W.2d 372 (Mo.1954); State v. Gregory, 339 Mo. 133, 96 S.W.2d 47 (1936); State v. Kinne, supra, 372 S.W.2d 62, and State v. Gordon, supra, 391 S.W.2d 346.

But these principles are not applicable here and are not dispositive of this issue. Here the prosecutor, prior to the testimony of Barbara Finley, expressed to the court that he had reason to believe that she would testify on the stand in a manner consistent with her prior statements on videotape and consistent with statements made to him before the trial. During her direct testimony she testified as expected by the prosecutor. It was not until cross-examination that she raised doubts about her direct testimony as to the knife and Cox’s actions. It was then that the prosecutor was permitted, on redirect, to examine her regarding her prior consistent statements. This method of redirect examination is permissible and is within the principle that:

“ ‘On redirect examination a witness may properly be interrogated as to facts, circumstances, or any matter tending to refute, weaken, or remove inferences, impressions, implications, or suggestions which might result from testimony or inquiries on cross-examination, although the facts brought out may be prejudicial to the other party. * * * Where there is a real or apparent inconsistency in the testimony of a witness, he may be questioned on redirect examination to straighten out the inconsistency, and for this purpose he may be asked questions tending to refresh his memory, such as whether or not he made certain statements before the trial. * * *.’ . ” State v. McKinney, 475 S.W.2d 51, 54 (Mo.1971).

See cases collected in Annot., 75 A.L.R.2d 909, 933 (1961); State v. Earvin, 539 S.W.2d 615 (Mo.App.1976), and cases cited there-, in. As the trial judge stated, a party is not required to claim surprise to rehabilitate a witness with a prior consistent statement. Prior statements affecting credibility are not inadmissible because they are hearsay. State v. Davis, supra, (No. 36,768).

Appellant also contends that (1) the extrajudicial statements of Barbara Finley were used as substantive evidence and as such were not competent under the authority of State v. Granberry, supra, and (2) although not preserved for review, the prosecutor argued these statements as substantive evidence and hence violated the “orthodox” rule that impeaching evidence is not competent as substantive evidence of the facts to which such statements relate. See State v. Granberry, supra, 491 S.W.2d at 530.

We reject both of these contentions. First, the prior consistent statements of Barbara Finley brought out on redirect examination were not used as substantive evidence but were admitted to refute the impressions and implications which may have resulted from her testimony on cross-examination. And, second, appellant’s contention that the comments of the prosecutor in closing argument constituted substantive evidence was not properly preserved for review. Error, if any, was certainly not “plain error.” State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967). The prosecutor, on closing argument, may comment on the evidence and the credibility of witnesses. Matters concerning argument must to a large degree rest within the sound discretion of the trial court. State v. Sallee, 436 S.W.2d 246, 254 (Mo.1969).

We therefore rule appellant’s first point against him.

As to appellant's second point — that the court erred in restricting his testimony concerning his movements and location on the day of the murder because of his, or his counsel’s failure to comply with the recently enacted rules of criminal discovery relating to notice-of-alibi — we are convinced that there was no error in this regard. Appellant contends that by excluding the defendant from explaining his movements and location on the day of the murder he was foreclosed from “explaining his innocence in any convincing and detailed way,” was “unable to take the witness stand” and “therefore unable to testify.” He argues several matters: (1) the state’s motion failed to comply with Rule 25.34(A)(5) because the state did not “specify” the place, date and time of the crime charged but specified a time span of six and one-half hours as the time of the offense; (2) because the accused had not made a definite decision to assert an alibi defense — defense counsel’s letter of November 22,1974 stated that he “may” assert the defense. Hence, appellant argues that he “gratuitously” answered the state’s request; (3) the state’s motion to produce was made after twenty days after arraignment so that it did not comply with Rule 25.31; (4) Rule 25.-34(A)(5) cannot be interpreted to preclude evidence to be offered by a defendant, as distinguished from witnesses, because such information is protected by the attorney-client privilege; and (5) the trial court’s order restricting appellant from testifying as to his location and with whom he was associated violated his constitutional right to present a defense inasmuch as Rule 25.34 explicitly states that discovery rules are “subject to constitutional limitations.”

Our new rules of criminal discovery— Rules 25.30-25.45, relating to reciprocal criminal discovery — became effective July 1, 1974. These new rules represent the apogee of pretrial discovery in criminal cases in the history of Missouri. Criminal discovery has had a long and turbulent history, but the modern trend is for liberalizing discovery in criminal cases. Our Rules “promulgate a procedure, within constitutional definition, for mutual pre-trial disclosure between the parties in cases of felony. Their desideratum is a quest for truth which promotes informed pleas, expedited trials, a minimum of surprise and opportunity for effective cross-examination!” State v. Buckner, 526 S.W.2d 387, 392 (Mo. App.1975).

Rule 25.34(A)(5) provides that:

“If the defendant intends to rely on the defense of alibi and the state in its motion specifies the place, date and time of the crime charged, disclosure shall be in the form of a written statement by counsel for the defendant, announcing such intent and giving specific information as to the place at which the accused claims to have been at the time of the alleged offense, and . . . the names and addresses of the witnesses by whom he proposes to establish such alibi.”

For failure to comply with the Rules, the “court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. . . . ” Rule 25.45. (Emphasis added.)

The technical arguments and contentions relied upon by appellant are wholly without merit. (1) The state’s motion under the circumstances sufficiently specified the place, date and time of the crime charged. The time sequence in this record was not so specific as to indicate the exact moment when Meixner was killed. The state in its motion stated the time of the incident “between the hours of 9:00 a.m., and 3:39 P.M.” on December 27, 1973. This was sufficient. Neither party is required to specify the exact second a crime is committed. (2) The contention that because the accused had not made a definite decision to assert an alibi defense but stated that he “may” assert the defense is wholly without merit. Such an equivocal declaration is certainly not within the spirit or letter of the Rule. The Rule contemplates that the defendant be specific as to whether he will or will not assert the defense of alibi. It does not permit equivocation. (3) Although the motion was not made within twenty days after arraignment, the time was implicitly, under the record, extended by the court which is within the authorization of the Rule.

Although the appellant raises the more difficult question — whether the court may exclude or restrict the testimony of a defendant in a criminal case, as distinguished from alibi witnesses when there is a noncompliance with a discovery order under the Rules — we believe, under this record, that it is not essential to reach this issue for the disposition of this appeal.

From a careful examination of the entire record, we are convinced that the appellant did not testify because of strategic, tactical and trial reasons and not because the court restricted his testimony concerning his location and movements on the day of the murder and restricted his testimony concerning the identity of the woman he allegedly was with. We believe that appellant knowingly, consciously made a deliberate choice, upon advice of counsel, not to testify because of strategic reasons, and that his contention that his testimony was restricted was merely incidental thereto and was an afterthought. The record shows that, after the state rested, the court advised appellant he did not have to testify but that if he did, the state had “every right to bring out on cross-examination your two . . . prior convictions and there may be more . .” Appellant made a conscious choice, based on a “combination of both of your [appellant and counsel] decisions.” It was then that the discussion concerning the prior ruling of the court, on restricting the defendant from testifying as to his location and whom he was with, took place. The court specifically inquired:

“Mr. Cox, I understand at this time that you have decided that you are not going to testify in your own defense, is that correct, sir?
MR. COX: Yes sir.
THE COURT: Is that your decision based solely or partly on that Order? [the order to restrict defendant from testifying that he was at a specific place and whom he was with]
MR. COX: A. Under the advisement of my attorney sir.
[Defense Counsel]: Your Honor, on the basis of the Order to Produce particular places where he was.
THE COURT: Q. Mr. Cox, you have the right to testify . . . [a]nd other than your specific location and the person you were with you would be free to testify to anything else that took place on that day . . . .”

In the posture of this case, we believe that appellant and his counsel determined, for tactical reasons, not to take the stand and that the court’s order to restrict his testimony concerning only his location and the woman whom he was allegedly with did not prejudice the appellant as he contends. The order did not, in and of itself, keep appellant off the stand. His two prior convictions loomed large in his decision not to testify. His videotaped statement was presented in which he denied any participation in the crime. The defendant was not precluded by any order of the court from taking the stand altogether; the order of the court was a limited one — it precluded the defendant from testifying only as to his location or movements and the name of a witness whom he claimed to be with. There was no offer of proof as to any alibi; both counsel seemed to desire that the issue of precluding a defendant from testifying be tested. Under these circumstances, it is not essential for the disposition of this case to determine the validity of a restrictive order precluding certain limited testimony by a defendant under Rule 25.45 and whether such preclusion violated the attorney-client privilege or violated his “constitutional” right to present a defense and testify on his own behalf.

Whether or not a failure or refusal to give a notice-of-alibi defense deprives defendant of due process or compels him to be a witness against himself has been explored in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), and in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

In Williams v. Florida, supra, it was held that the application of a notice-of-alibi rule did not deprive defendant of due process or compel him to be a witness against himself. The Supreme Court of the United States held that notice-of-alibi provisions do not violate either due process or the privilege against self-incrimination.

“ . . . Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, no- ' tice-of-alibi provisions . . . are now in existence in a substantial number of States. The adversary system of trial is hardly an end to itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. . . . ” Williams v. Florida, supra, 90 S.Ct. at 1896.

In Wardius v. Oregon, supra, the Court held that an Oregon statute which made no provision for reciprocal discovery and which precluded a criminal defendant from introducing evidence to support an alibi defense as a sanction for failure to comply with a notice-of-alibi rule violates due process. The Court did, however, note that notice-of-alibi rules are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduce the possibility of surprise at trial. The growth of such discovery is a salutary development. Wardius v. Oregon, supra, 93 S.Ct. at 2211.

Whether a defendant, as distinguished from alibi witnesses, may be precluded from testifying as to an alibi defense if he or his counsel has not previously submitted a notice of alibi as required by rule or statute has been the subject of varying interpretations, and varying rationales. See Annot., 45 A.L.R.3d 958, 987-988 (1972); 30 A.L.R.2d 480 (1953); cf. Note, the Preclusion Sanction — A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342 (1972).

In the posture of this case and under this record, it is not essential for us to determine which of these varying rules or rationales are applicable, for we are convinced that the limited restrictive order of the trial court was not prejudicial to the rights of the appellant and the matter was not sharpened for proper review.

We therefore rule appellant’s second point against him.

We have thoroughly reviewed the entire lengthy transcript, we have read all the authorities relied upon by the appellant and many more, we have thoroughly considered all the issues and contentions relied upon by the appellant, and we are convinced that there was no prejudicial error requiring a reversal of the judgment and a re-trial.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . Mr. Meixner, on occasion, worked part-time for Mr. Robert Overy as a cement mixer, and two weeks before his death Mr. Overy paid him $115.00 in cash for his services.

      . A witness for the state, an elderly lady, testified that she was watching television about 11:00 a. m. and saw a man with “blond, burnt blondish looking color” hair wearing a blue jean jacket walk past her window, walking in the direction of Meixner’s shack — “[t]owards the woods.”

      . A positive identification is not essential. It is sufficient for purposes of admissibility if the identification of an object is a qualified one. State v. Alderman, 498 S.W.2d 69, 72 (Mo.App. 1973); State v. Johnson, 286 S.W.2d 787, 791 (Mo. 1956) — weapon ‘“looked like’ . . . looked ‘very much’ like . State v. Stancliff, 467 S.W.2d 26, 30 (Mo. 1971); State v. Russ, 537 S.W.2d 216 (Mo.App.1976).

      .Prior to Barbara’s testimony the prosecutor informed the court on the morning of the trial that her testimony would be consistent with her prior statements concerning the knife.

      . Somewhere between 45% to 50% of the population has type “O” blood.

      . Neutron activation analysis has been recognized as an accurate, accepted method of determining the elemental composition of a sample. State v. Ross, 523 S.W.2d 841, 845 (Mo.App. 1975); State v. Johnson, 539 S.W.2d 493 (Mo. App.1976).

      . These in-chamber references refer to a ruling by the trial judge which apparently adjudged that the defendant’s supplemental letter with reference to the alibi was not in compliance with the state’s motion to produce and ordered that the scope of an alibi defense be restricted. This ruling is not a part of the record, but the reference by the prosecutor makes it clear that this was the gist of the ruling.

      . The prosecutor twice referred to Barbara’s testimony and her prior statements in closing argument: (a) “. Now you people have to judge when Barbara Finley is telling the truth, and when she isn’t. You could see her testify, and that statement was brought up, her later statement in contrast to her original statement. . . . ” (b) “. . . The next thing, Cox asks for the butcher knife. Barbara Finley of course, on direct examination says, yes, she saw him reach under the mattress and stick it down his trousers and under his coat and walk out the door and then she started to flutter a little bit and then we brought in the video tape statement . . . . It’s up to you, ladies and gentlemen, whether you believe she was telling the truth, hedging around the knife with the word hickory on it and all this. . . .”

      . He relies on State v. Kinne, 372 S.W.2d 62 (Mo.1963); Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851 (Mo. 1943); State v. Hogan, 352 Mo. 379, 177 S.W.2d 465 (Mo.1944); State v. Woodard, 499 S.W.2d 553 (Mo.App.1973); State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973) [impeaching evidence cannot be used as substantive evidence]; State v. Gordon, 391 S.W.2d 346, 349 (Mo. 1965).

      . Several of the authorities relied upon by appellant — State v. Hogan, supra, and State v. Gordon, supra — were held in State v. McKinney, supra, to be inapplicable to the state’s redirect examination.

      . In our opinion, the comments here, unlike State v. Granberry, supra, and State v. Davis, supra, were not used as substantive evidence to show the truth of the statements made by Barbara Finley but were used to show the consistency of her prior statements and to discredit the impressions and implications raised by her testimony on cross-examination.

      . For a discussion of the Rules, see Simeone, The New Rules of Criminal Discovery in Missouri, 31 J. of Mo. Bar 16 (1975).

      . See A.B.A. Standards Relating to Discovery and Procedure Before Trial, 34-46 (1970).

      .The Federal Rules of Criminal Procedure as amended in 1975, PL 94-64, 94th Congress, provides in Rule 12.1(d) that upon failure to comply with notice of alibi, the court may exclude any undisclosed witness offered by such party, but “[t]his rule shall not limit the right of the defendant to testify in his own behalf.”

      . In the videotaped statement taken on December 27, 1973, the appellant stated he was alone when he went to Stone’s Drug Store.

      . The constitutional question was not preserved for review. Appellant did not raise the constitutional argument until the briefing stage. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (banc 1949); State v. Goforth, 535 S.W.2d 464, 468-469 (Mo.App. 1976).

      . The Court emphasized that this case does not involve the question of the validity of the threatened sanction had petitioner chosen not to comply with the rule. “ . . Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding . evidence is a question raising Sixth Amendment issues which we have no occasion to explore. . ” Williams v. Florida, supra, 90 S.Ct. at 1897, note 14.

      . The Court did not rule on the issue whether, if the Oregon rule were valid, it could not be enforced by excluding the defendant’s testimony or supporting witnesses. Wardius v. Oregon, supra, 93 S.Ct. 2208, 2211, note 4.

      . The weight of authority of the reported decisions supports the trial court’s ruling precluding the defendant from testifying as to his location and the name of the witness for failure to comply with a notice-of-alibi rule. Cases holding that the defendant’s alibi testimony is subject to exclusion include: State v. Francis, 128 N.J.Super. 346, 320 A.2d 173, 175 (1974); State v. Wardius, 6 Or.App. 391, 487 P.2d 1380, 1382 (1971), rev’d on other grounds, Wardius v. Oregon, supra; Johns v. Perini, 440 F.2d 577, 579 (6th Cir. 1971); Lake v. State, 274 N.E.2d 249, 252-253 (Ind.1971); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177, 179-182 (1968); State v. Taylor, 198 Kan. 290, 424 P.2d 612, 618 (1967); State v. Rider, 194 Kan. 398, 399 P.2d 564, 567 (1965); Rider v. Crouse, 357 F.2d 317, 318 (10th Cir. 1966).
      Cases holding that the defendant’s testimony cannot be excluded include: People v. Merritt, 396 Mich. 67, 238 N.W.2d 31, 38-41 (1976); State ex rel. Mitchell v. Walker, 294 So.2d 124, 126 (Fla.App. 1974)—under specific statute; State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, 218 (1963); State v. Post, 255 Iowa 573, 123 N.W.2d 11, 18-19 (1963); People v. Rakiec, 289 N.Y. 306, 45 N.E.2d 812, 814 (1942).


author: McMILLIAN, Judge.

text:
    Charles Edward COLEMAN, Appellant, v. STATE of Missouri, Respondent.
    No. 37132.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 10, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.
    Roberts & Roberts, V. Kenneth Rohrer, Farmington, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   McMILLIAN, Judge.

Charles Edward Coleman appeals from an order of the Circuit Court of St. Francois County, Missouri, denying his companion motions to vacate judgments and sentences under Rule 27.26. We affirm the order of the trial court.

Appellant was arrested on April 13, 1973, subsequent to the robbery of a gas station. During the course of the robbery a station attendant and a customer were killed. The charges brought against appellant included two counts of first degree murder, one count of first degree robbery, one count of kidnapping, one count of stealing a motor vehicle, and one count of resisting arrest. During the arrest appellant was shot by the police and required hospitalization. While confined at the hospital, appellant made a video-taped confession. Charles Hyler was appointed by the court to represent appellant on May 1, 1973. During the preliminary hearing the court viewed the videotape and appellant was positively identified by a witness to the robbery. After the charges against him were reduced to two counts of second degree murder, appellant entered pleas of guilty and was sentenced to two concurrent terms of forty (40) years imprisonment. Appellant filed his motions with the circuit court on August 5, 1974, seeking to vacate the judgments. The court appointed counsel to represent appellant; held a hearing on the motions, and denied both of them.

Appellant raises three issues on appeal: (1) that the trial court ruling was clearly erroneous because the pleas of guilty were not voluntarily made because of ineffective advice of counsel; (2) that the pleas were not voluntarily made because of a failure of appellant’s counsel to investigate; and (3) that the pleas were the involuntary result of isolation and long confinement and were induced by appellant’s counsel’s statement that appellant would be in jail for four (4) to five (5) years awaiting trial.

A motion filed under Rule 27.26 is an independent civil action. A petitioner seeking to set aside a judgment entered upon a plea of guilty has the burden of establishing grounds for relief by a preponderance of the evidence. State v. Rose, 440 S.W.2d 441, 443 (Mo.1959). Upon review we are limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j) and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). Such findings and conclusions are only clearly erroneous if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968).

Appellant’s first point on appeal is that his pleas were not voluntary because of ineffective advice of counsel concerning the admissibility of his confession and the identification by a witness. The ultimate test of the effectiveness of counsel in a guilty plea situation is whether there was such adequacy of representation that the plea is voluntarily and understanding^ made. Hall v. State, supra, at 303. “ . [Ajppellant is bound by his plea unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not a knowing and intelligent act.” Hall v. State, supra, at 303. The duty of counsel is to render such assistance as is within the range of competence demanded of attorneys in criminal cases. Jones v. State, 502 S.W.2d 326, 328 (Mo. 1973).

In the present case the evidence pro- ‘ duced at the hearing established that counsel met with appellant on eight occasions and kept him informed about the case against him. The circuit court found that counsel was correct in the advice he gave appellant — that the confession and identification would have been admissible at trial. The efforts of counsel, which resulted in a substantial reduction in the charges against appellant, were well within the range of competence which is required of attorneys in criminal cases. The pleas of appellant were, therefore, not made involuntarily because of ineffective assistance of counsel.

Appellant’s second point on appeal is that his counsel failed to adequately investí-gate appellant’s condition prior to the making of the video-taped statement. The issue of failure to investigate was not a ground set forth in the motions filed in the trial court. The issue is therefore, not properly before this court, having been raised for the first time on appeal. Maggard v. State, 471 S.W.2d 161, 162 (Mo. 1971) and Quinn v. State, 515 S.W.2d 603, 608 (Mo.App.1974).

While we do not reach the issue, our reading of the record indicates that it is without merit. Appellant claims that his attorney failed to investigate whether his confession might have been excluded due to the effects of medication on appellant at the time the confession was made. The unrebutted testimony of trial counsel was that he had discussed the medication with one of appellant’s physicians. Appellant’s attending physician was of the opinion that appellant was in control of himself and responsible for what he said at the time of the confession. Even if the issue were properly before us, we find that appellant has not carried his burden of showing that a failure to investigate resulted in actual prejudice, making his plea involuntary.

Appellant’s final point on appeal is that the pleas of guilty were made as a result of the adverse effects of isolation and long confinement and were induced by appellant’s counsel’s statement that appellant would be in jail for four (4) to five (5) years before his cases would be disposed of by trial. Again, these grounds were not raised in the original motions filed with the circuit court and leave nothing for review. Mag-gard v. State, supra and Quinn v. State, supra. We note that while there were no findings of fact on this issue, mere incarceration prior to trial does not constitute such coercion as to render a plea involuntary. Coleman v. State, 473 S.W.2d 692 (Mo.1971).

Accordingly, judgment of the circuit court is, therefore, affirmed.

WEIER, P. J., and RENDLEN, J., concur.