author: HOGAN, Judge.

text:
    Mancil SMITH, Plaintiff-Respondent, v. Donald D. WORSHAM, Defendant-Appellant, and Ethel Sutherland, Defendant.
    No. 10131.
    Missouri Court of Appeals, Springfield District.
    June 1, 1977.

      John Alpers, Jr., Cabool, for defendant-appellant.
    Albert F. Turner, Mountain Grove, G. Michael Baker, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

In this declaratory judgment action plaintiff Mancil Smith sought construction of a contract for the sale of real estate and an adjudication of the parties’ interest in and right to a $5,000 payment made by defendant Worsham upon signing the contract. The cause was tried without a jury. The trial court found and declared that the contract in issue was valid, that defendant Worsham was bound thereby, and that plaintiff and defendant Ethel Sutherland were each entitled to receive one-half the $5,000 payment because of defendant Wor-sham’s default. Worsham appeals.

Worsham lives near Eltopia, Washington, but was “born and raised” in Wright County, and was in Mountain Grove “[s]ome-where around the 10th, 12th of February” 1973. In his words, he was “looking for a place.” Defendant Sutherland had employed the plaintiff, a licensed real estate broker, to sell her 645-acre farm located in Douglas County. As we understand the terms of plaintiff’s listing, the Sutherland property was to be sold for $135,000; $5,000 was to be paid at the time a contract of sale was executed, and the balance was to be paid in cash or financed upon delivery of the deed. The vendor was willing to “carry” part of the unpaid balance with interest at the rate of seven percent per annum.

At some time after his arrival in Mountain Grove — the chronology of the record is very confused — Worsham contacted Smith and looked over the Sutherland property several times. Worsham agreed to pay the asking price, but “wouldn’t go but six and a half percent interest” on the unpaid balance. This proposal was accepted by Mrs. Sutherland as vendor.

Plaintiff prepared a contract on Thursday, February 15, 1973. The contract, according to the plaintiff is a “standard form of agreement” “prepared by the Missouri Real Estate Association”. As material here, the contract recites that it was executed the 15th day of February 1973 by defendant Sutherland, a single woman, as seller, and defendant Donald D. Worsham and Yvonne Worsham, his wife, as buyer. The opening paragraph further provides: “The terms Seller or Buyer, may be either singular or plural according to whichever is evidenced by the signatures affixed below.” The instrument goes on to recite that the seller agrees to sell and convey and the buyer agrees to purchase 645 acres of land in Douglas County, and that the purchase price for the property shall be $135,000, to be paid as follows: $5,000 upon execution and delivery of the contract, receipt of which is acknowledged, and the balance in cash or by certified check “and if the Seller agrees to finance a part of the purchase price . . . then by delivering the note and deed of trust as hereinafter provided

A number of optional “financing agreements” follow, and the contract provides, “Only those paragraphs which are completed shall be applicable.” The alternative “completed” paragraph provides that the seller agrees to finance a part of the purchase price in the amount of $110,000 to be evidenced by a promissory note payable in installments over a period of 10 years, bearing interest at the rate of 6½ percent per annum, and a first deed of trust. The contract provides that the sale shall be completed at plaintiff’s office on April 15,1973, “or at such other time and place as the parties may mutually agree.” The seller agrees to pay plaintiff $10,000 as a commission. The contract is signed by Donald D. Worsham and Ethel Sutherland. A number of general conditions and provisions follow, one of which is a recital that it is understood that time is of the essence of the contract, and if the Seller “has kept Seller’s part of this agreement . . . and the Buyer fails to comply with the requirements of this agreement within ten (10) days [after seller furnishes good title] then the money deposited [as earnest money] shall be paid over to the Seller as liquidated damages . . . and this agreement may or may not be thereafter operative, at the option of the Seller. If the aforesaid money deposited is paid over to the Seller, then it shall be divided equally between the Seller and the said named agent [plaintiff].” In addition to those provisions we have recited, the contract contains a “special agreement” which reads: “Buyers agree to make a payment of $14,150.00 on or before October 15, 1973.”

There is no question that Worsham gave plaintiff a check for $5,000 at the time the agreement was signed. The check was made payable to Smith Realty Company, and plaintiff deposited the check to a “trust account” at a local bank. There is further no question that Yvonne Worsham, defendant Worsham’s wife, was not present when the negotiation preceding the contract took place, nor when the contract was signed. Yvonne Worsham was in Washington, never saw plaintiff nor discussed the transaction with plaintiff, and became aware that her husband had signed the contract only after defendant Worsham returned to Washington. Defendant Worsham then advised his wife of the transaction, and the two came to Missouri to inspect the property. For whatever reason, Mrs. Worsham-refused to sign the contract, defendant Worsham asked that his $5,000 be returned, and this action followed.

The trial court made complete findings of fact and declared the rights of the parties. Contrary to the plaintiff’s assertion, such findings in a declaratory judgment action are not regarded as voluntary, even though they were not requested; in a declaratory judgment action, the trial court must make a declaration of the rights of the parties and enter that declaration as part of the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 843-844, 136 S.W.2d 282, 284-285[1-3] (1940). It is unnecessary to set forth all the findings, although they have been helpful. Of particular concern here are findings 8(a), (b) and (c), acknowledging that defendant Wors-ham denied the existence of a contract because it was not signed by all the parties between whom it was purportedly made, and declaring as a matter of law 1) that the Statute of Frauds, § 432.010, RSMo 1969, V.A.M.S., was satisfied; 2) that defendant Worsham signed the contract and was bound thereby, and 3) that plaintiff and defendant Sutherland were each entitled to one-half the amount of the earnest money as liquidated damages. We acknowledge that our review is governed by Rule 73.01, para. 3, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), but in this case we have concluded, with deference, that the law has been erroneously applied.

This is not a case in which the broker seeks to recover his commission; the plaintiff’s right of recovery, and that of his principal, depend on the validity of the contract of sale. Therefore, the determinative question is whether or not Worsham was bound when the contract on its face purported to be made between the vendor and Worsham and his wife. The defendant claims he was not bound, citing National Motor Club of Missouri, Inc. v. Noe, 475 S.W.2d 16, 22-23 (Mo.1972); Taylor v. Connell, 233 Ark. 440, 345 S.W.2d 4 (1961); Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943), and 17 C.J.S. Contracts § 62, p. 734 (1963). The respondent as vigorously contends that Worsham was bound, citing us to Kaneko v. Okuda, 195 Cal.App.2d 217, 15 Cal.Rptr. 792 (1961), and Bank of United States v. Chemical Bank and Trust Co., 140 Misc. 394, 246 N.Y.S. 595 (1930).

We have examined the Missouri precedents which have been cited; they are instructive, though they are factually dissimilar. In National Motor Club of Missouri, Inc. v. Noe, supra, 475 S.W.2d 16, the plaintiff filed a seven-count petition against the defendants alleging unfair competition by former employees and a competing motor service club and seeking both damages and injunctive relief. The trial court granted a motion for summary judgment on all counts of the plaintiff’s petition. Count VII of the plaintiff’s petition was based on a purported shareholder’s agreement of noncompetition for as long as the shareholders continued to hold stock in eight affiliated motor service clubs and for a period of two years after each shareholder divested himself of his last share of stock. The defendant against whom this count was directed contended that the contract was unenforceable because all the persons named as parties to the agreement did not sign it. In holding that the trial court did not err in sustaining the motion for summary judgment as to this count, our Supreme Court noted that the agreement recited it was executed between all the stockholders of the following corporations, and recited that it was executed for and “in consideration of the mutual covenants and promises herein contained”; the court observed that four corporate shareholders and five individual stockholders had not signed the agreement. Citing the general rule stated in 17 C.J.S. Contracts § 62, p. 734, the court called attention to the fact that the plain terms of the contract were that all the stockholders sign it before there could exist mutual promises which would furnish the necessary consideration. Analogizing and distinguishing a number of foreign precedents, the court concluded, 475 S.W.2d at 23: “Manifestly, the intention of the parties to the instant contract is shown by its terms not to be binding on any one of them unless all stockholders signed it”. Of like import is the decision in Thornhill v. Herdt, 130 S.W.2d 175 (Mo.App.1939), which involved a restrictive agreement prohibiting the sale, conveyance, leasing or rental of property in a designated restricted area to black persons. The agreement was signed by only 11 of 46 property holders in the restricted area. The court noted that the agreement contemplated a neighborhood scheme, and that the lack of written assent by all property owners defeated the obvious purpose and intent of the contract.

On the other hand, in Thrower v. Keltner, 358 Mo. 152, 213 S.W.2d 476 (1948), the court had before it a contract for the sale of realty which had been signed by only one of the named vendors. The purchasers sought specific performance, which was resisted on the theory that only one of the named vendors had signed. In ordering specific performance, the court observed that the Statute of Frauds requires only the signature of the party to be charged, and noted, among other things, that the vendor who had not signed, defendant’s mother, was of unsound mind; that the defendant had attempted to effect the conveyance by obtaining deeds from all her brothers and sisters and their wives and husbands; that the letters written by defendant disclosed she thought she could convey good title without her mother’s signature, and during the interval between the execution of the contract in 1943 and the commencement of the action in 1947, defendant had continuously expressed her willingness to convey the property. Further noting that the mother died prior to the commencement of the action, the court held, 358 Mo. at 156-157, 213 S.W.2d at 478[3]: “The conduct of the parties and the letters written after the contract was signed convinces us that all parties considered the contract binding although the defendant’s Mother had not signed.” Shortridge v. Ghio, 253 S.W.2d 838 (Mo.App.1952), although again not factually apposite, is also instructive in pointing out that even though there may be a memorandum sufficient to satisfy the Statute of Frauds, a contract is unenforceable if it was not assented to as required by its terms or as contemplated by the parties. Shortridge v. Ghio, supra, 253 S.W.2d at 844, 845[8].

We have also considered the foreign precedents cited by the parties, but abstract discussion of the law is unnecessary. Generally the authorities support the proposition stated in the encyclopedias and texts: One cannot correctly say, abstractly, that a contract signed by less than all the parties between whom it purports to be made is binding on those who did sign, or that it is not so binding; the question is one of the parties’ intention as disclosed by the particular instrument and the conduct of the parties after the instrument was executed. Moreover, parol evidence is admissible to show the nonexistence of a contract or to show the conditions upon which a writing is to become effective, and may therefore be received to show that a contract was to become effective only upon being signed by all persons named as parties, provided the contract does not specifically provide otherwise.

It is not true, however, as we have just noted, that a contract for the sale of land is complete and enforceable because the memorandum was signed by the party sought to be charged, and therefore complies with the Statute of Frauds. Groh v. Calloway, 316 Mo. 989, 993, 292 S.W. 65, 66[1] (1927); Shortridge v. Ghio, supra, 253 S.W.2d at 844—845; 91 C.J.S. Vendor and Purchaser § 40 (1955). The specific and determinative question here, as indicated, is whether the parties intended defendant Worsham to be bound severally or whether it was intended that his wife sign or otherwise assent to the terms of the contract.

Applying the general principles we have discussed and the ordinary rules of construction to the contract at hand, it is clear that both defendant Worsham and his wife are parties to the contract. The contract, by plaintiff’s own testimony, was prepared on a printed form. The first paragraph recites that it is made and entered into “between Ethel Sutherland, single, the Seller, and Donald D. Worsham and Yvonne Worsham, his wife, the Buyer [sic].” The printed form then recites that “[t]he terms Seller or Buyer, may be either singular or plural according to whichever is evidenced by the signatures affixed below.” The instrument then recites, as did the contract discussed in National Motor Club of Missouri, Inc. v. Noe, supra, 475 S.W.2d at 22, that it is executed “[f]or and in consideration of the mutual obligations of the parties hereto” (our emphasis). The contract is signed by defendant Worsham and defendant Sutherland, but following their signatures and at the end of the contract is a “special agreement” that “[bjuyers (our emphasis) agree to make a payment of $14,-500.00 on or before October 15, 1973”.

These provisions are revealing and are of considerable interest here. As we shall presently see, the preparation of the contract and indeed the conduct of the whole transaction was entrusted to the plaintiff by the vendor, and if it had been the vendor’s intention to contract with and bind defendant Worsham severally, there was very little point in naming Mrs. Wor-sham as a party. In addition, of course, by the usual rules of construction, the written or typewritten provisions of the contract control over the printed provisions, National Heater Co., Inc. v. Corrigan Co. Mech. Con., Inc., 482 F.2d 87, 89-90[3] (8th Cir. 1973); Restatement of Contracts § 236(e) (1932), and the obvious ambiguity of the language used to designate the purchasers must be resolved against the vendor, who prepared the contract. Stuart v. Franklin Life Ins. Co., 165 F.2d 965, 967[2] (5th Cir. 1948); Restatement, supra, § 236(d). Manifestly, Mrs. Worsham is a party to the contract, which, as we note was executed in consideration of the mutual obligations of the parties.

In this connection, we note that the contract, under the heading “financing agreements”, reads: “Seller agrees to finance a part of the purchase price in the amount of $110,000.00 to be evidenced by a negotiable purchase money promissory note in a form approved by Seller to be amortized in equal monthly installments over a period of 10 years bearing interest at the rate of six [and] one half per cent (sic) (6V2%) per an-num and secured by a 1st deed of trust in a form approved by Seller and covering the property described above”.

The question at once arises: What was “the Seller” prepared to approve? The plaintiff was examined about this matter, and because it appears that the plaintiff was given plenary authority to negotiate and close the sale we believe we may accept his statements as those of the vendor. Plaintiff testified on direct examination that he “asked that [defendant Wor-sham] give me his wife’s name for the purpose of making out the contract on the loan that [vendor] was making; that I would have to have those available at the time.” Defendant Worsham gave plaintiff Mrs. Worsham’s “full name.” On cross-examination plaintiff was‘asked if the “financing portion [sic] of this agreement contemplated that there would be a promissory note and deed of trust executed by Mr. and Mrs. Worsham in favor of Mrs. Sutherland”, to which plaintiff answered, without objection, “Yes.” Counsel for defendant went over the same question several times, but the unmistakable impact of plaintiff’s evidence was that the vendor expected Mrs. Wors-ham to sign the $110,000 promissory note and to join her husband in securing it with a first deed of trust. Obviously, Mrs. Wor-sham’s assent was necessary if the note and deed of trust were to be executed, and the inescapable fact that the agreement could not be carried out without her assent clearly indicates the parties contemplated that Yvonne Worsham would sign or otherwise formally assent to the contract of sale. Rinaldi v. Rodzik, 257 Mass. 238, 153 N.E. 453, 454 (1926); Belisle v. Barry, 253 Mass. 475, 149 N.E. 121 (1925).

We realize and bear in mind that the object of a signature is to show mutuality or assent, National Motor Club of Missouri, Inc. v. Noe, supra, 475 S.W.2d at 22, and that the assent of a vendor or purchaser may be shown by acts indicating agreement even though the contract was never signed. We also bear in mind that certain recent precedents hold it is possible for the holder of a concurrent estate in realty to become bound severally by his contract to purchase or convey that estate. See, e. g., Lazare v. Hoffman, 444 S.W.2d 446, 451-452 (Mo.1969); Thrower v. Keltner, supra, 358 Mo. at 156-157, 213 S.W.2d at 478[3], Those authorities are not at all persuasive here. Defendant Worsham did, perhaps, give the contract some countenance by making the down payment, but the evidence was that as soon as he discovered his wife was unwilling to sign the contract, he attemp/ted to stop payment on the check, and later asked that his money be refunded. Certainly he gave the contract of sale no such countenance as did the vendor in Thrower v. Keltner, supra, who attempted to effect a conveyance by one means or another for four years before asserting that the contract was invalid, nor can defendant Worsham’s conduct be compared to that of the purchaser in the often-cited case Schlosberg v. Shannon & Luchs Co., supra n.2, 53 A.2d at 723, in which the purchaser listed the property for sale and advertised it for rent immediately upon execution of the contract. We are convinced that the intention of the parties here was that the contract of sale was not to be binding unless both defendant Worsham and his wife signed it, and because she did not, no binding contract ever existed between the vendor and purchaser. For that reason, and because no actual damage to the vendor was shown, the trial court should have ordered the $5,000 deposit refunded to defendant Worsham.

The judgment is reversed and remanded, with direction to enter a judgment ordering refund of the $5,000 deposit to defendant Donald D. Worsham. The costs on appeal, however, should be taxed to defendant Worsham as well. At least as to one-half the $5,000, plaintiff Smith was only a stakeholder, and we are in no doubt of his good faith in bringing this declaratory judgment action. Under Rule 87.09, V.A.M.R., this court is authorized to make such an award of costs as may be equitable and just. Such authority does not extend to awarding costs in the trial court; allocation or reallocation of the costs there are a matter to be passed on by the trial court, Durwood v. Dubinsky, 291 S.W.2d 909, 925[24] (1956), but we can direct that the costs on this appeal be taxed to defendant Worsham and it is so ordered.

All concur.

      . “It has been held in numerous cases that, where an instrument has been executed by only a portion of the parties between whom it purports to be made, it is not binding on those who have executed it.”

      . 17 C.J.S. Contracts § 62 (1963); 1 A. Corbin, Contracts § 31 at 120-122 (1963); 3 id. § 577 at 392-400 (1960). See, as illustrative, Taylor v. Connell, 233 Ark. 440, 345 S.W.2d 4, 8[6, 7] (1961); Willard F. Deputy & Co. v. Hastings, 2 W.W.Harr. 345, 32 Del. 345, 123 A. 33, 34-35[1][2][3] (1923); Schlosberg v. Shannon & Luchs Co., 53 A.2d 722, 723[1, 2][3] (D.C.Mun.App.1947); Madia v. Collins, 408 Ill. 358, 97 N.E.2d 313, 315—316[1, 2] (1951); Wiegand v. Tringali, 22 Mich.App. 230, 177 N.W.2d 435, 437—438[2] (1970); Miners’ and Merchants’ Bank v. Gidley, 150 W.Va. 229, 144 S.E.2d 711, 715-716 (1965).

      . 30 Am.Jur.2d Evidence §§ 1033, 1038 (1967); 32A C.J.S. Evidence §§ 967, 972 (1964); 3 A. Corbin, Contracts § 577, at 393 — 400 (1960); Restatement of Contracts § 241 (1932).

      . The vendor — “seller”—testified by pretrial deposition, brought out on cross-examination: “Q. Did Mancil Smith [plaintiff] tell you that [defendant Worsham] was taking the contracts back for his wife to sign? A. Well, it was understood.” Mrs. Sutherland answered, “Uh huh [sic]”, signifying she remembered her answer. Counsel then asked: “Q. Now, isn’t that what your testimony is, that it was understood that [Worsham’s] wife would sign those contracts?” Vendor answered, “Well, really, I wasn’t thinking anything about it. I trusted the business to Mancil, Mr. Smith. He was doing my work, and I really didn’t study anything about it much. I just thought he would take care of it.”

      . 4 J. Wigmore, Evidence § 1078 at 162 (Chadb-ourn Rev. 1972); McCormick, Evidence § 267 at 640 (2d ed. 1972); Restatement (Second) of Agency § 283 (1958).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    William Earl VANDIVER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10195.
    Missouri Court of Appeals, Springfield District.
    June 3, 1977.
    Donald R. Rhodes, Bloomfield, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TITUS, P. J., and STONE and FLANIGAN, JJ.
   PER CURIAM:

While movant and three fellow prisoners were incarcerated in the Stoddard County jail under various charges and convictions, each was additionally charged with three acts of sodomy upon two other inmates. Movant pleaded guilty and received a 30-year sentence. After evidentiary hearings, he now appeals from the trial court’s judgment denying his Rule 27.26 motion to vacate the sentence. Movant has been permitted to litigate his motion and this appeal in forma pauperis and has been afforded the services of various court-appointed lawyers at every stage of the procedure.

It suffices to say that movant’s guilty plea was accepted by the trial court only after it meticulously questioned movant personally and thoroughly explained to him each of his constitutional rights that he would be waiving should he plead guilty, after it carefully inquired into the voluntar-iness of the plea, and after establishing its factual basis. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Flood v. State, 476 S.W.2d 529, 535-536 (Mo.1972). Among other things before accepting the plea, the court ascertained that movant was satisfied with the services of his counsel; that movant had committed the act of sodomy charged in Case 71-CR-250; that movant understood the court would not impose sentence until it received a presentence report; that movant had not been mistreated, coerced or threatened nor had he received any promises, inducements or representations to cause him to plead guilty; that movant was aware the possible sentence could range from two years to life imprisonment; and that movant understood the court was not bound by any agreements or proposals that may have been made between himself, his counsel and the prosecuting attorney. Following acceptance of the plea, the state dismissed the other two sodomy charges.

During the nine weeks which elapsed between acceptance of the plea and imposition of sentence, movant conferred and corresponded with counsel, inter alia, anent withdrawing his guilty plea. The lawyer prepared and sent to movant a “Motion to Withdraw Guilty Plea” and admonished movant to add all other reasons he might have for making the motion. Movant signed and returned the motion as written. He did not ask or suggest that additional grounds for the motion be made. As filed, the reasons for the motion were: “1. Defendant entered said plea of guilty in order to escape the deplorable conditions and treatment he was enduring in the Stoddard County jail at the time of said plea and not because of guilt. 2. Defendant is, in fact not guilty of the charge herein.”

When the day for sentencing arrived, this occurred: “The Court: Let the record show . the defendant is now before the Court, and appears in person and by attorney . . . initially on a . . . motion to withdraw guilty plea. [Defendant’s Counsel]: ... I believe . . . the defendant has something he wants to say to the Court in that regard. The Defendant: Yeah, I’d like to withdraw this here motion. The Court: What is the basis for your request? The Defendant: I don’t have one. The Court: Let the record so show. Motion to withdraw plea denied.” Addressing movant, the court thereafter summarized the presentencing report and said, in part, “When you kick people and stomp people and abuse them sexually as you did, I’ll be frank, I have seriously considered committing you to life imprisonment. Now, if there’s anything you want to say in your own behalf, right now is the time you’re going to get. Do you have anything to say? The Defendant: No.”

The Rule 27.26 motion filed in this case contained several alleged grounds for relief, all of which were denied in the exhaustive findings of fact and conclusions of law filed by the trial court. Rule 27.26(i). However, on appellate review we consider only those grounds preserved in movant’s brief. Borman v. State, 528 S.W.2d 502[1] (Mo.App.1975).

In asseverating his sentence should be vacated, movant says: (a) his plea of guilty was involuntary because it was induced by coercion and mistreatment inflicted upon him while he was confined in the Stoddard County jail; (b) his plea was made in reliance upon a broken promise that if he pleaded guilty, he would receive a sentence of five years and all other charges would be dropped; and (c) while ceding that the court had followed proper and adequate procedures in ascertaining the voluntariness of the guilty plea on the day of its acceptance, the court erred in failing to make additional and further inquiry into the vol-untariness of the plea before imposing sentence because movant, in the meantime, had proclaimed his innocence and asserted the plea was the result of mistreatment and coercion.

As to (a): At the hearings conducted on the Rule 27.26 motion, movant and his erstwhile jail companions testified that after being accused of the sodomitical acts, they were isolated from other jail inhabitants by being placed in separate cells and were thus deprived of free access to the jail facilities. Movant lamented the removal of his boots — the footgear he allegedly employed to kick and stomp the averred victims of the crimes. All four said they repeatedly had been forced to do “push-ups” and when they refused or were unable to do so, they were “Maced” and subjected to other physical abuse. They described themselves as the recipients of frequent beatings by the sheriff, his deputies and a member of the state highway patrol. Also, they complained of being required to eat their meals through the bars of the cells. To the contrary, the sheriff, two deputies and a trooper testified they never struck, beat, “Maced” or forced movant or his witnesses to do “push-ups” and had never seen others perform such acts. All denied that movant had been subjected to the abuse of which he complained. Movant’s boots were removed and he and his companions were separated from other prisoners because this was deemed necessary for the protection and safety of the remainder of the occupants of the jail. It was also said that the plates upon which meals were served were capable of being received into the cells via slots provided for that purpose. A lawyer present when movant pleaded guilty, the prosecuting attorney and movant’s lawyer at the time, stated that they had observed no bruises, abrasions or similar marks on movant’s body to indicate he had been subjected to physical abuse. Movant’s counsel at the time of the guilty plea, testified that movant had not complained to him of ill treatment while in the Stoddard County jail before entering his plea.

Whether movant’s plea was voluntary vel non because of “the deplorable conditions and treatment he was enduring in the Stoddard County jail at the time of said plea,” turned upon the credibility of the witnesses. The credibility of witnesses is a question of fact for the trial court and is not to be considered on review of a Rule 27.26 hearing. Parton v. State, 545 S.W.2d 338, 341[4] (Mo.App.1977). The weight of the evidence and the credibility of the witnesses are matters for the trial court alone [Bibee v. State, 542 S.W.2d 540, 542[4] (Mo.App.1976); Trice v. State, 540 S.W.2d 613, 615[3] (Mo.App.1976)], and the trial court had the right to reject the testimony of movant and his witnesses and to believe the testimony of the witnesses appearing for the state. Blanchard v. State, 504 S.W.2d 180, 181[1] (Mo.App.1973). Since the trial court believed the evidence adduced by the state, it follows that movant was not subjected to the mistreatment of which he complained and that his plea of guilty was not induced by reason thereof.

As to (b): The tenor of movant’s evidence was that he pleaded guilty not only because of the alleged mistreatment he had received in jail, but also because he was assured by his counsel and the prosecuting attorney that if he did so he would receive a 5-year sentence and the other two pending sodomy charges would be dropped. On the other hand, the prosecutor said he agreed to dismiss two of the charges and recommend a 5-year sentence only “in the event” the judge “should ask for a recommendation.” Movant’s counsel testified he “repeatedly” told movant and his parents that the judge “was not required to follow the recommendation of the Prosecuting Attorney” and “that the five year so-called arrangement or whatever with the Prosecutor was merely going to be a recommendation, that it was not a promise, that it was not guaranteed.” The judge did not ask for a recommendation and, of course, there is no dispute that the prosecutor did, in fact, drop the other two charges.

Again we have a conflict in the testimony which the trial court resolved in favor of the state. Mere erroneous expectations of a defendant as to sentencing are not in and of themselves a sufficient ground for postconviction relief or for permission to withdraw a guilty plea. Masciola v. United States, 469 F.2d 1057, 1058[1] (3rd Cir. 1972). As believed by the trial court, what movant’s attorney and the prosecutor said were not even simple predictions of what the sentence would be, and such predictions are not grounds for attacking a plea. Swanson v. United States, 304 F.2d 865, 866[1] (8th Cir. 1962), cert. denied, 371 U.S. 894, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). Rather, the only agreement made was that the prosecutor would recommend a 5-year sentence if and provided the court would ask for it. Furthermore, the agreement was accompanied by repeated warnings that it was not a promise or a guarantee that a 5-year sentence would be imposed.

The so-called plea bargaining in this case was based solely upon a contingency which did not occur. Under the evidence accepted and believed by the trial court, neither the prosecutor nor movant’s attorney overreached or represented to movant that a 5-year sentence was a certainty. There was nothing said by either the prosecutor or movant’s attorney which reasonably could be interpreted in the manner claimed by movant.

As to (c): In summary, movant asserts the record does not affirmatively show the plea of guilty was a voluntary one because after movant’s plea was accepted, the court, before pronouncing sentence, was made aware by the motion to withdraw his plea, that movant was asserting his innocence and contending his plea was induced by mistreatment. Movant relies on Griffith v. Wyrick, 527 F.2d 109 (8th Cir. 1975). In Griffith it was held that the trial court, upon learning of defendant’s claim of innocence and that his plea was entered in order to escape the custody of his jailers who had allegedly beaten and maced him, was required to inquire into those matters so that the record would affirmatively show, under the totality of the circumstances, that the plea of guilty was voluntary.

While it is apparent there was some confusion at the hearing which preceded the sentencing, the record shows that the trial court did, in fact, inquire of movant the basis for wishing to withdraw his motion or the plea of guilty. To this question, movant answered, “I don’t have one.” But assuming, arguendo, this inquiry was not sufficient to affirmatively show the volun-tariness of the plea as required by Griffith, the state may still show by way of postcon-viction proceedings under Rule 27.26, that the plea was voluntarily made. Todd v. Lockhart, 490 F.2d 626, 627-628[2, 3] (8th Cir. 1974).

Unlike the record of the Rule 27.26 proceedings in Griffith, the state in this case carried its burden of proving, as seen under (a) and (b), supra, that the plea was not induced by mistreatment of movant at the hands of his jailers and was not inspired by a broken promise of a certain 5-year sentence. Whatever deficiencies may have existed when movant pleaded guilty and was sentenced, were satisfied by the proof offered by the state in the Rule 27.26 hearings in this cause.

We find no error in the judgment nisi and order it affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Dale HENSON, Defendant-Appellant.
    No. 10368.
    Missouri Court of Appeals, Springfield District.
    June 13, 1977.
    Jasper N. Edmundson, G. H. Terando, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for defendant-appellant.

      John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

John Dale Henson, charged as a second offender, was found guilty by a jury of the second degree murder of his 14-year-old nephew Jackie Fletcher. Judgment was entered on the verdict and defendant received a sentence of 35 years. Defendant appeals.

Defendant’s first point is that the trial court erred in refusing to instruct the jury on the issue of self-defense. The trial court did instruct the jury on excusable homicide, (MAI-CR. 2.28 “The Killing of Another by Accident or Misfortune”).

If there was substantial evidence of self-defense, the trial court was required to instruct thereon, whether requested or not. State v. Boyd, 498 S.W.2d 532, 533[1] (Mo.1973). In determining whether the evidence was sufficient to support the giving of a self-defense instruction, this court must consider the evidence in the light most favorable to the defendant. State v. Cole, 377 S.W.2d 306, 307[1] (Mo.1964).

The defenses of self-defense and accident are inconsistent. State v. Peal, 463 S.W.2d 840, 842 (Mo.1971). If the shot was fired in self-defense, the firing resulted from the voluntary act of defendant; if the shot was accidental, the act was involuntary. State v. Harkins, 535 S.W.2d 462, 464 (Mo.App.1976). Both defenses, self-defense and accident, must be submitted where each is supported by the evidence, unless defendant’s personal testimony is relied upon to support both. State v. Sanders, 541 S.W.2d 530, 533[2] (Mo. banc 1976).

The parties stipulated that Jackie’s death, which occurred on April 13, 1975, was caused by a gunshot wound to the forehead. The shooting took place at the trailer home of Gladys Henson, mother of defendant and grandmother of Jackie. Jackie had been living with his grandmother for about two weeks. Present at the time the shooting took place, in addition to defendant and the victim, were Kenneth Huggins, the state’s principal witness, and Gladys Henson, the principal defense witness. Defendant did not testify.

According to Huggins, he and defendant had spent most of April 13, 1975, drinking beer. Later that evening, some time after Jackie and Gladys had gone to bed, Huggins and defendant went to Gladys’s trailer. The living room of the trailer adjoins the kitchen. Jackie and Gladys arose after the two men entered. A bowl of greens was sitting on a table. Defendant picked up a handful of greens, threw them on the table, and told Gladys he wished she would fix him something to eat. Defendant teased Gladys, and he “was speaking maybe a little loud, probably cussing some.”

Huggins said that Jackie kept trying to get defendant to get up from where he was sitting. Jackie “was wanting to whip him for some reason, and he kept on, and (defendant) did get up once, and he set back down. (Jackie) said, ‘You’re not going to talk to my grandmother that way.’ ”

“Q. What happened then?

“A. Well, the boy just kept on and on, and after a bit John just jumped up and ran outside the door and came back in with the gun.” .

“Q. Now, what happened when John Dale Henson came back into the house?

“A. He came in, and after I heard him come in I turned and looked, like this, and I saw the gun and it fired at that time and the boy fell.”

“Q. How fast did this shot transpire after John come back in the house?

“A. Well pretty fast. By the time I turned and saw the gun and everything, it fired, and just that fast, real fast.

“Q. Was it just a split second time thing?

“A. Like I turned like this and looked, and the gun went off.”

According to Huggins, at the time the gun was fired, defendant’s arm “was extended out from his chest.” Huggins had seen the gun earlier that day when it was in the defendant’s car. At that time it was in a holster and the hammer on it was not cocked. After looking at the gun, Huggins placed it back in the holster and put it under the car seat, still uncocked. Huggins testified that he did not see Jackie “with any sort of weapon that evening.” Jackie and the defendant were approximately the same size. When the shooting took place the defendant was about 12 feet from Jackie. Jackie was then standing in the center of the kitchen and the defendant was about one step inside the front door of the trailer.

Gladys testified that about 10 p. m., prior to the arrival of the defendant and Huggins, Jackie had fixed himself two cheeseburgers with the use of a butcher knife. After defendant and Huggins arrived, defendant began to kid her about the turnip greens. Gladys told defendant he was silly for drinking and defendant told her that she was an old fuddy duddy. This made Jackie mad “so he run at (defendant) and hit him and knocked (defendant) backwards. (Defendant) shoved (Jackie), and I grabbed (Jackie) by the shoulder and pulled him back. (Jackie) just kept getting madder and madder.”

Gladys also testified that when she grabbed Jackie and pulled him back, Jackie picked up the butcher knife and “drawed it back.” When that happened, defendant left the trailer, making the statement, “I have something in the car for you.” The defendant came back in with a gun. While defendant was outside the trailer getting the gun, according to Gladys, “Jackie just stood there ... I told him to put the knife down but it didn’t do no good.”

Gladys testified that when the defendant returned to the trailer with the gun, he stood on the partition line between the living room and the kitchen, about three feet from Jackie. Jackie had the knife in his hand at that time, “he' just still kept it drawed back, holding it drawed back.” When asked whether Jackie was waving the knife back and forth, Gladys said, “I don’t know, I can’t swear to that. I just know he had it drawed back.” Gladys said that the defendant was then holding the gun in his hand and was “looking down toward the floor.” Defendant yanked the holster off the gun and it went off. Defendant was not holding the gun out in front of him but had it down “along about his stomach” with his head and shoulders bent. Gladys stated that she did not see defendant “ever point the gun at Jackie.” She also said that the shot was fired just a second or two after defendant stepped back in the trailer.

The right of self-defense is not to be invoked unless all other means fail. State v. Roberts, 294 Mo. 284, 242 S.W. 669, 674 (1922). “If he could have safely avoided using the weapon he was not justified in taking the life of the deceased.” State v. Johnson, 76 Mo. 121, 126 (1882). “The law of self-defense may imply the right of attack when it appears reasonably necessary to protect one’s self from an impending assault. . . . Yet it remains the law of necessity, real or apparent. And the danger must be imminent or reasonably appear to be so.” State v. McGee, 361 Mo. 309, 234 S.W.2d 587, 591[6] (Banc 1950). “Self-defense is a last resort and in order to justify a homicide on such grounds the doer of the homicidal act must have done everything in his power, consistent with his own safety, to avoid the danger and avert the necessity, and he must retreat, if retreat be practicable.” State v. Sherrill, 496 S.W.2d 321, 325[14] (Mo.App.1973); State v. Jackson, 522 S.W.2d 317, 319[3] (Mo.App.1975).

Although the jury could have found that Jackie was the aggressor in the initial confrontation between him and defendant, that confrontation ended upon defendant’s departure from the trailer. Jackie did not pursue him. The testimony of Gladys, who alone said that Jackie had a knife, was that “Jackie just stood there.” Defendant went outside, entered the automobile, and obtained the gun. His re-entry into the trailer was not a product of “necessity, real or apparent.” Far from doing “everything in his power, consistent with his own safety, to avoid the danger and avert the necessity,” State v. Sherrill, supra, defendant re-entered the trailer and immediately shot his victim.

The law will not condone defendant’s voluntary resumption of the confrontation nor its tragic consequences. The right of self-defense, precious and fundamental as it is, will not be contorted into a hunting license.

In State v. Adkins, 537 S.W.2d 246 (Mo.App.1976), defendant and his victim were fighting each other in an automobile. Thereafter the defendant emerged from the automobile, but re-entered it and resumed the struggle which culminated in the death of his adversary. In rejecting defendant’s contention that the trial court erred in refusing to instruct on self-defense, the court said, at p. 249:

“The force used in self-defense must not exceed the bounds of what is necessary or reasonably appears necessary for defense or prevention. . . Further, where the accused continued or renewed the struggle when he had an opportunity to abandon or decline further, he became the aggressor, irrespective of whether he was at fault with the original difficulty, and is not justified in claiming self-defense. 40 C.J.S. Homicide § 133.”

The evidence in this record would not support a finding that defendant “had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself from such danger.” The quoted finding “must be included in every self-defense instruction in homicide cases.” Para. 3 of Notes on Use to MAI-CR. 2.40.

The trial court properly refused to instruct the jury on the issue of self-defense. State v. Adkins; State v. Roberts; State v. McGee; State v. Sherrill, all supra.

Defendant’s second point is that the trial court erred “in refusing to grant defendant’s motion to quash the jury panel in that said panel was not selected in accordance with § 494.250 RSMo 1969, which requires the regular and alternate list of perspective (sic) jurors to be exhausted before ordering the sheriff to summon prospective jurors from bystanders.”

The trial judge was Hon. Flake L. McHa-ney, who replaced the regular judge, Hon. Rex A. Henson, the latter having been disqualified on defendant’s motion. After the jury panel was sworn, defendant’s counsel orally moved that the entire panel be “discharged” on several grounds, including the only one mentioned in his second point, and elaborated upon in the argument portion of the brief, to the effect that the sheriff summoned bystanders “before the list of alternate petit jurors had been exhausted.” Even if, which need not be decided, the cited statute was applicable to this situation, the fact is that the list of alternate petit jurors had been exhausted before the sheriff summoned the bystanders.

In connection with defendant’s motion, the court heard the testimony of the circuit clerk. He testified that Judge Henson had, prior to the trial of this case, excused all but 23 of the members of the original list of jurors summoned pursuant to § 494.250, para. I. Of the 23, 19 were present at the commencement of this trial as panel members. The other four were two women, a 74-year-old man, and a man who “has a one-man insurance office.” It is the essence of defendant’s complaint that the bystanders were summoned before these four people were excused.

Although the four people were not present in the courtroom, Judge McHaney entered an order excusing the two women “based on the statute which permits them to request to be excused” (§ 494.031[2]), excusing the 74-year-old man “because of his age” (§ 494.031[1]), and excusing the insurance man “since he is a one-man operation” (§ 494.031[9]). It will be observed that, by reason of Judge McHaney’s proper excusing of the four people, “the list of alternate petit jurors” had in fact “been exhausted.” The fact that the excusing took place after the bystanders had been summoned is of no moment. It was at most a “mistake or informality” which constitutes no ground for error. State v. Breen, 59 Mo. 413, 415 (1875).

Moreover, statutes pertaining to summoning jurors, including § 494.250, “have uniformly been construed as merely directory and not mandatory.” State v. Thompson, 472 S.W.2d 351, 353[2, 3] (Mo. 1971). The burden of proof rested upon defendant to show a noncompliance with the statute. McCormack v. McNamee, 274 S.W.2d 272, 275 (Mo.1955). Even if there was a lack of strict compliance with the statute, no error would result absent a showing of prejudice. State v. Adams, 497 S.W.2d 147, 153[3] (Mo.1973); State v. Hailey, 350 Mo. 300, 165 S.W.2d 422, 423[1, 2] (1942); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 778[2] (1928); State v. Pettis, 522 S.W.2d 12, 15[5, 6] (Mo.App.1975). The latter has not been demonstrated.

Defendant’s third point is that the trial court erred “in refusing to grant defendant’s motion to quash the jury panel in that 14 members of said panel were selected by deputy sheriffs who were witnesses for the state and against the defendant.”

A sufficient answer to this point is that it has no factual support. The record does show that the two deputies testified for the state. Defendant’s brief says that they “were also involved in the summoning of the 14 bystanders who made up part of the jury panel.” The transcript contains no basis for that remark.

The judgment is affirmed.

All concur.

      . “In order, however, to constitute a ground for a challenge to, or motion to quash, the array, his objection must go to the whole array or panel, and not merely to individual persons on it.” 47 Am.Jur.2d Jury § 229, p. 817.

      . Defendant at no time claimed that there was any noncompliance with § 494.250, para. 1. He claims noncompliance with § 494.250, para. 2.

      . There was no showing whether any of the four persons excused was a regular or an alternate juror.


author: HENRY, Justice.

text:
    STATE of Tennessee, Petitioner, v. Tony Mack BROWN, Respondent.
    Supreme Court of Tennessee.
    June 20, 1977.
    Brooks McLemore, Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Carroll Van Deacon, Asst. Dist. Atty. Gen., Cleveland, for petitioner.
    Charles M. Corn, Cleveland, for respondent.
   OPINION

HENRY, Justice.

Respondent was convicted in the Criminal Court at Cleveland of burglary and assault and battery. His convictions were reversed by the Court of Criminal Appeals, and we granted the State’s petition for certiorari.

I.

Our primary reason for granting certiora-ri was to examine the correctness of the conclusion reached by the Court of Criminal Appeals in holding that medical and hospital records of the prosecutrix while a patient at a state hospital were discoverable.

Prior to the trial the defendant made a motion which reads in part as follows:

Defendant further alleges that the State’s witness, Margie McCarver has suffered a mental illness and has been a patient at Moccasin Bend Psychiatric Hospital in Hamilton County, Tennessee, and that said Hospital is a State institution and is under the management and control of the Commissioner of Mental Health pursuant to 33 T.C.A. 201. Defendant alleges that his attorney should be furnished with a medical report from said Hospital concerning the nature of Margie McCarver’s mental illness. That the mental condition of said witness directly relates to her credibility as a witness and the medical report may therefore be exculpatory in nature.

Attached to this motion was a letter from defendant’s counsel to Moccasin Bend Hospital requesting a medical report concerning the victim’s mental condition “especially with respect to whether she has any delusions or hallucinations concerning sexual assaults.” Also attached is the response of Moccasin Bend’s Superintendent declining to release the information absent “a signed release of information form by the individual patient.” This motion was renewed, in writing, one day prior to trial.

Upon the argument of the motion, counsel for the defendant represented to the court, from information gleaned from the preliminary hearing, that the victim had “some form of mental disability or instability”, “had been in Moccasin Bend Hospital two or three times, once for a period of five to six months’, and further stated his belief that “there is probably something in that report that she has illusions of people attacking her or persecuting her.”

He further stated:

. I think that if the court had or if I had a chance to look at this that I would be able to develop a cross-examination to the point where I could seriously impeach her credibility. Now, if the-court felt that this was too serious a violation of her rights as a mental patient it would be all right with me if the court got the report and if the court read it and the court make a decision as to whether I should be able to read it or not. (Emphasis supplied).

The record shows that the victim had been a patient at Central State Hospital for approximately a year in 1970 and 1971. The report from Central State shows that she has been treated repeatedly for emotional disturbances of psychotic proportions. It further shows that she has been a patient at Moccasin Bend since her treatment at Central State.

II.

The first issue to be addressed is whether these reports are privileged.

The State insists that Sec. 24-112, T.C.A. “makes communication between a patient and a psychiatrist privileged except in three specific instances, none of which were present in the instant case.” Sec. 24-112, T.C.A. reads as follows:

Communications between psychiatrist and patient. — Communications between a patient and a person licensed to practice medicine while acting in the capacity of a psychiatrist shall be privileged communications except in civil and criminal cases and other legal proceedings in which (1) the mental condition of the patient is an issue or (2) it is determined by the court or board having jurisdiction of the matter that the interests of justice require that the privilege be withheld or (3) in those hearings or proceedings under chapter 14 of title 52 of this Code relative to the civil commitment of persons not charged with or convicted of any criminal offense.

We respectfully disagree with the State’s insistence that these exceptions are not applicable. Clearly, the mental condition of this prosecuting victim was an issue. It is even more clear that the interests of justice required that the privilege be withheld.

The mental condition of this prosecuting victim was an issue of overriding importance. If the hospital records compiled at Moccasin Bend would have established that she did, in point of fact, suffer from hallucinations or delusions, this information would have been critical.

While we have before us no assignment that would permit an evaluation of the evidence, we feel that a proper consideration of the confidentiality of the medical records and their discoverability demands that we note several significant facts about the testimony.

First, the conviction rests solely upon the testimony of the victim and that of her 12 year old grandson.

Second, according to the victim’s description of the struggle with the defendant, both as given at the hearing, and as related by her to others, she “bit him real hard” on the hand. She repeatedly described the nature and extent of the bite. Yet, all the proof is that, when arrested immediately after the alleged crime, he did not have a mark upon his hand.

Third, the victim and her 12 year old grandson testified that he and his 10 year old brother shot the defendant repeatedly with a BB gun, striking him in various places, including his face. And yet, the uncontroverted proof is that when arrested he did not have a mark about his face.

Fourth, there was a strong alibi defense.

Fifth, the jury reported “hung” and did not reach a verdict until after the court gave a supplemental charge.

Fundamental considerations of justice, under these circumstances, demand the denial of the privilege and the discoverability of those records. As Judge Daughtrey stated in the opinion of the Court of Criminal Appeals, with respect to the psychiatric reports, “[tjheir impeachment value in this case can best be described as powerful.” (Emphasis supplied).

We hold that the reception of these records and reports was not precluded by Sec. 24-112, T.C.A.

III.

We now discuss the discovery aspects of this case.

When the motion for discovery was presented, the trial judge had a number of options.

First, while the motion was not based specifically upon Sec. 40-2044, T.C.A., the trial judge could have treated the report sought as a paper or document “under the control of the attorney for the state.” This logically follows from the fact that the District Attorney General represents “the State” and Moccasin Bend is a “State” mental health facility. Sec. 38-201, T.C.A. “The duty to disclose is that of the state . ” not just that of the office of the prosecutor. Barbee v. Warden, Maryland Pen., 311 F.2d 842, 846 (4th Cir. 1964).

Second, he could have entered an order requiring and directing that the Superintendent at Moccasin Bend lodge the requested documents with the Clerk of the Court.

Third, he could have directed the issuance of a subpoena duces tecum directing the Superintendent at Moccasin Bend to appear at a designated time and place and to bring with him the requested documents.

Fourth, he could have required that the prosecutrix execute a release of information form as a condition precedent to the receipt of her testimony.

In connection with these alternatives we note with approval the following section from the American Bar Association Standards Relating to Discovery and Procedure Before Trial:

2.4 Material held by other governmental personnel.

Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to defense counsel; and if the prosecuting attorney’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.

The State of Tennessee administers criminal justice through its courts. The most significant figure in this process is the trial judge, who possesses vast power—statutory and inherent—in the administration of justice. He has an affirmative duty to insure that both the State and those who stand accused not be denied access to critical information essential to the fact finding process.

In State v. Gaddis, 530 S.W.2d 64 (Tenn.1975), this Court said:

We note an emerging trend toward broad and reciprocal discovery in criminal cases. The days of trial by ambush are numbered. Rapidly fading is what Dean Pound described as the “sporting theory of justice”. 530 S.W.2d at 69.

The Court of Criminal Appeals, in this case, merely followed the rationale and reasoning of Gaddis, supra, i. e. full and reciprocal discovery to the maximum extent possible consistent with the constitutional rights of those accused of criminal acts. We think that this full discovery demands that upon request of a defendant the State shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the State as evidence in chief at the trial.

The Court of Criminal Appeals correctly held that the requested information was discoverable under Sec. 40-2044, T.C.A. which reads as follows:

Copying certain books, papers and documents held by attorney for state.—Upon motion of a defendant, or his attorney, at any time after the finding of an indictment or presentment, the court shall order the attorney for the state, or any law enforcement officer, to permit the attorney for the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others which are in possession of, or under the control of the attorney for the state or any law enforcement officer. The order may specify a reasonable time, place and manner of making the inspection, and of taking the copies or photographs and may prescribe such terms and conditions as are just. However, such inspection, copying or photographing shall not apply to any work product of any law enforcement officer or attorney for the state or his agent or to any oral or written statement given to any such officer or attorney for the state or his agent by any witness other than the defendant.

IV.

The Court of Criminal Appeals, in reversing the trial judge, and remanding the case, directed that on retrial

. the trial court should order an in camera inspection of the requested records to determine whether they have any probative value to the defendant in the preparation of his defense and the trial of this case.

We approve these instructions. The trial judge, in his sound judicial discretion, must be the arbiter of the probative value — either as direct evidence or as a source of cross-examination- — of the findings contained in the report of Moccasin Bend.

In view of the disposition we make, it is unnecessary that we pass upon the remaining assignments.

Affirmed.

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

      . Identical motions were made in each case. In the interest of clarity and brevity we treat them in the singular.

      . This is the precise approach taken by the Court of Criminal Appeals, i. e., an in camera inspection to determine the probative value of the records.


author: CARNEY, Presiding Judge.

text:
    DELTA REFINING COMPANY, Plaintiff-Appellant, v. PROCON, INCORPORATED, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 26, 1976.
    Certiorari Denied by Supreme Court Nov. 1, 1976.
    Rehearing Denied by Supreme Court April 4, 1977.

      William H. Luck, Memphis, for plaintiff-appellant.
    Buchignani & Greener, Memphis, for defendants-appellees.
   CARNEY, Presiding Judge.

This lawsuit arose out of a disastrous fire which occurred at the Delta Refinery in Memphis, Tennessee, in the early morning of December 7, 1969. Damages amounted to approximately $500,000. The cause of the fire was a defective pump built and assembled by the Sunstrand Company at its plant in Denver, Colorado. The plans and specifications for the pump were drawn by the Universal Oil Products, hereinafter called UOP. The pump was purchased and installed by the Defendant-Appellee, Pro-con, Inc., under a general construction contract with Plaintiff-Appellant Delta Refining Company. Procon, Inc. is the contracting subsidiary of UOP and is a frequent contractor for construction of refining facilities. The total contract price with Procon, Inc. was $1,030,000.

Delta Refining Company brought the present suit against the Defendant, Procon, Inc., general contractor, and Sunstrand, the manufacturer of the pump. Defendant Procon then filed a cross claim against Sunstrand. Sunstrand then cross claimed against Procon and Universal Oil Products. It will be remembered that Universal Oil Products drafted the plans and specifications for the pump. In turn, Universal Oil Products impleaded Sunstrand. All of the Defendants denied liability to the Plaintiff, Delta Refining Company.

The case was tried to a jury. At the conclusion of Plaintiff’s proof, the Trial Judge granted a directed verdict in favor of the Defendant-Appellee, Procon, Inc. After the directed verdict in favor of Procon, Inc., the Plaintiff took nonsuits as to the other Defendants, Sunstrand and UOP. Plaintiff Delta Refining Company contended in the Court below and contends in this Court on appeal that it was entitled to go to the jury against Procon on two theories: (1) The jury could find Procon, Inc. negligent in failing to determine whether or not the bolt contained in the pump manufactured by Sunstrand met the specifications. (2) The jury could find the Defendant Procon liable under strict liability in tort doctrine as seller of the pump under 402A Restatement of Torts, Second Edition.

Plaintiff Delta Refining Company, together with 3,000 other independent refineries over the world, operates as a licensee of Universal Oil Products Company. Licensees are permitted to use UOP process in refining premium gasoline. The Defendant Procon, Inc. contracted to supply engineering, new apparatus and materials and construction services for the revamp of Delta’s existing C 3 alkylation unit to a C 3 + C 4 alkylation unit so as to produce premium gasoline according to plans and specifications furnished by UOP. The plans specified that a depropanizer charge pump be purchased from Sunstrand and installed by Procon. The specifications furnished by UOP indicated that the pump would be handling hydrofluoric acid.

Three weeks after the pump was placed in service, the six stud bolts uniting the pump to the pump case all failed simultaneously releasing a highly volatile product. The product became ignited and the half million dollar fire resulted. The stud bolts failed because they were hardened to a Rockwell C-42^6 and thus were more susceptible to corrosion from the hydrofluoric acid than they would have been if the bolts had been hardened only to a Rockwell hardness of C-25.

UOP contends that the specifications for the pumps clearly provided for a Rockwell hardness of only C-25 for the stud bolts whereas Sunstrand insists that the specifications did not forbid stud bolts of a hardness of Rockwell C-42 — 46. Sunstrand also insists that even if the bolts did not meet the specifications, it furnished a detailed statement to Procon and/or UOP showing exactly what bolts and/or other materials it proposed to furnish in compliance with the specifications; that neither Procon nor UOP made any objections; that therefore, both UOP and Procon are estopped to contend that Sunstrand did not furnish stud bolts in accordance with the specifications.

It is admitted that Procon did not check the studs when it received the pump to see whether or not they met specifications. The pump was already assembled and it would have been necessary to dismantle the pump in order to inspect the studs. It is conceded that a visual inspection would not have revealed hardness of the bolts and that the hardness of the bolts could have been determined only by a special laboratory test which Procon was not equipped to make.

Some of Plaintiff’s expert testimony indicated that the stud bolts furnished by Sunstrand for the pump did not meet the specifications drawn up by UOP. Other expert testimony indicated that the specifications might be construed to authorize the stud bolt as furnished by Sunstrand in the manufacture of the pump.

We find no merit in the Plaintiff’s contention that Procon, Inc. is liable under the strict liability in tort doctrine as a seller of the product. We agree with the rationale of Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013 (C.A. 9, Ariz., 1970), dealing with a defective turbine generator used in a paper pulp mill denying strict liability in tort. We quote from the opinion as follows:

“The principles underlying the doctrine of strict liability in tort with respect to products were not applicable. All damages sought by Southwest in this case are consequential damages. The turbine generator is a highly specialized, custom-built piece of machinery, built to the particular specifications and tested in the factory before delivery, under supervision of engineers representing both parties. The circumstances of this case do not bring the plaintiff within that class of consumers, type of transaction, or damages suffered that created the need based on strict liability in tort. Neither the philosophy nor the theory of the doctrine of strict liability in tort, nor the actual holdings of the cases involved support an extension of the doctrine of strict liability in tort to the present facts.”

See also Parker v. Warren (Tenn.App.W.S.1973), 503 S.W.2d 938, where this Court held that carpenters who had constructed two top rows of bleacher seats at a wrestling arena were not liable under the theory of strict liability in tort when the seats broke because they were not sellers of the lumber used and were not engaged in the business of selling lumber as such.

In the instant case, Procon did not sell the defective pump in the sense used in Restatement of Torts, 402A. It was not in the business of selling such pumps. Procon merely contracted with Delta to purchase and install a pump which Sunstrand would build according to specifications furnished by Plaintiff. The portion of the assignment of error relating to strict liability is respectfully overruled.

We also hold that His Honor the Trial Judge correctly held that Procon, Inc. was under no legal duty to dismantle the pump and send the stud bolts off to a laboratory for testing as to hardness. The installation required nothing more than connection of the suction and discharge flanges, wiring of the pump motor and connection of a flush line. It was given a preliminary test in November 1969 by Delta, found to be free of leaks whereupon it was placed in operation and seemed to be operating completely satisfactorily until December 7, 1969, when the fire occurred. Absent any unusual circumstances which put Procon on notice that the pump might be defective, there was no actionable negligence on the part of Procon.

In the case of Leininger v. Stearns-Roger Manufacturing Co., 17 Utah 2d 37, 404 P.2d 33 (1965), an exhaust fan in a uranium ore processing plant exploded. It had been designed by the chief chemist of the owner. It was purchased and installed by the Defendant contractor. When purchased, the fan was fully assembled and the Defendant contractor installed the fan according to plans and specifications. In a suit by an injured Plaintiff, the Trial Judge gave summary judgment for Defendant contractor.

Our opinion that Procon was not expected by Delta to test the pump and its components is fortified by the express language of Procon’s contract with Delta:

“ . . . CONTRACTOR’S liability by reason of defective materials or workmanship shall be limited to the obligation to repair or replace such defective materials or workmanship to the extent provided hereunder.
For the benefit of CUSTOMER, CONTRACTOR shall obtain from equipment and material vendors guarantees against defects in materials and workmanship to the extent that such guarantees are reasonably obtainable and liability therefor shall be limited to the guarantees so obtained.
8. LIMIT OF CONTRACTOR’S OPERATING OBLIGATIONS
CONTRACTOR’S construction obligations with respect to the operation of the plant and of the individual processing units and other items of equipment embodied therein shall be limited to the workmanship guarantees set forth in Article 7 hereof and CONTRACTOR shall in no event be liable for consequential damages.”

From a consideration of the relationship it is clear that Delta relied upon UOP to draft the proper specifications for the pump to be used in the remodeling project and did not expect to hold Procon liable for the defective pump unless Procon was put on notice that the pump was defective at the time of installation.

Plaintiff Delta cites the case of Sadler v. Draper, (M.S.1959), 46 Tenn.App. 1, 326 S.W.2d 148, in support of its contention that the Trial Judge should not have granted a directed verdict for one Defendant, Procon, at least until the Defendant Sunstrand should have had an opportunity to present its evidence both in defense to Delta’s action and its cross claim against Procon. Under the authority of Sadler, we hold that His Honor the Trial Judge had a discretion to grant the directed verdict to Procon. We see no abuse of this discretion.

The assignments of error are overruled. The judgment of the lower Court is affirmed. The costs are taxed to Plaintiff-Appellant Delta Refining Company.

MATHERNE and NEARN, JJ., concur.


text:
    Marvin J. HADDOCK, Plaintiff-Appellant, v. LUMMUS COTTON GIN COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Division.
    June 2, 1976.
    Certiorari Denied by Supreme Court Nov. 29, 1976.

      Sidney W. Spragins, Spragins & Murchison, Jackson, for plaintiff-appellant.
    James D. Causey, Memphis, Ralph Lawson, Dyersburg, for defendant-appellee.
   CARNEY, Presiding Judge.

The Plaintiff below, Marvin J. Haddock, was severely injured on November 12,1973, while employed at Dyersburg Fabrics, Inc. in Dyersburg, Tennessee, in its dye room. The Plaintiff received severe injuries to his head and arm when he was caught in a bale press manufactured and sold by Defendant Lummus Cotton Gin Company.

The jury returned a verdict in favor of the Defendant, Lummus Cotton Gin Company. Plaintiff’s only assignment of error insists that a portion of His Honor’s charge to the jury relating to negligence and assumption of risk was erroneous.

The case was tried exclusively on the theory of strict liability in tort though Plaintiff had included negligence and breach of warranty in his complaint.

After His Honor the Trial Judge had completed his charge, including the part assigned as error, but before the jury was given the case, the attorney for Plaintiff, out of the presence of the jury, stated to the Trial Judge that his charge had contained instructions which related to a claim based on negligence. We quote the colloquy:

“The Plaintiff does not object to the instructions as given. We don’t think it prejudices the Plaintiff’s case. However, if the Defendant feels that the instructions are prejudicial to the Defendant’s case, we think an objection should be made at this time so Your Honor can correct that by a proper statement to the Jury.
“MR. SPRAGINS: The Plaintiff previously abandoned reliance upon the theory of negligence. We move that the pleadings and theory of the Plaintiff at this time be amended to conform to the evidence in the case and to include the theory of negligence in the sense that Your Honor has described it.
THE COURT: Do you want to be heard on it? I will let you amend it. I’m not going to change the charge.
MR. SPRAGINS: I have no objection to the charge. It does not conform to the Plaintiff’s theory. Our motion is that our theory and the pleadings be changed to conform to that.”

The cause of the Plaintiff’s injuries was in sharp dispute. The heavy ram plat of the hydraulically operated bale press had dropped from its topmost position about 19 inches. The droppage is called “drifting.” Plaintiff was reaching up over the ram plate cleaning and removing lint from the inside of the press with a vacuum hose. While the Plaintiff had his head and right arm in the opening between the ram plate and the upper housing, the ram plate suddenly activated and raised injuring the Plaintiff’s skull and severely injuring his right arm. It was some twenty minutes before he could be extricated from the press.

Plaintiff contended that the ram plate suddenly retracted and raised because of an inherent and concealed defect in the electrical circuit of the drill press; that Plaintiff had no knowledge of this characteristic in the design of the press and there had been no warning given him by the Defendant or his employer, Dyersburg Fabrics, Inc., that the ram plate was likely to raise without warning under certain given conditions.

Defendant contended: (1) The ram plate would not have drifted downward it if had been properly maintained; (2) the ram plate could not have raised and all danger from cleaning the press box would have been eliminated if any one of three safety switches had been turned off; (3) that the cause of Plaintiff’s injuries was the failure of his employer, Dyersburg Fabrics, to instruct Plaintiff as to proper maintenance of the press; (4) that the Plaintiff was guilty of proximate contributory negligence in cleaning the press box with the current on; (5) that the ram shaft raised and crushed Plaintiff as a result of Plaintiff having actuated an electrical switch when he pulled a vacuum hose over the switch.

Tennessee Rules of Civil Procedure 51.02 provides as follows:

“51.02. Objection: Failure to Object
After the judge has instructed the jury, the parties shall be given opportunity to object, out of hearing of the jury, to the content of an instruction given or to failure to give a requested instruction, but failure to make objection shall not prejudice the right of a party to assign the basis of the objection as error in support of a motion for a new trial.”

Admittedly, if Plaintiff had made no comment on the portion of the charge complained of on this appeal, under 51.02 he could assign error to any portion of the charge in this Court. However, since the Plaintiff took affirmative action by asking for permission to amend his theory of the case to conform to the charge of the Court and approved the charge, we hold that Plaintiff’s assignment of error in this Court is not authorized by T.R.C.P. 51.02.

The situation is analogous to a party assigning error to a charge which he had requested. After the jury’s verdict, it was too late to question the correctness of the charge.

It is, therefore, unnecessary to discuss the cases cited and relied upon by Appellant relating to the correctness of the charge complained of.

The assignment of error is respectfully overruled. The judgment of the lower Court is affirmed. The costs of this appeal are taxed to the Plaintiff-Appellant.


author: ROSS W. DYER, Special Judge.

text:
    UNION LIVESTOCK YARDS, INC., Plaintiff-Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Paine, Webber, Jackson & Curtis, Inc., and Cas and Virginia Walker, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 29, 1976.
    Certiorari Denied by Supreme Court May 31, 1977.

      George F. Legg, Knoxville, for plaintiff-appellant.
    Robert R. Campbell, Ronald C. Koksal, Knoxville, for defendants-appellees.
    W. P. Boone Dougherty, Knoxville, for Cas and Virginia Walker.
   OPINION

ROSS W. DYER, Special Judge.

In this opinion Union Livestock Yards, Inc. will be referred to as Appellant; Merrill Lynch, Pierce, Fenner and Smith, Inc. and Paine, Webber, Jackson & Curtis, Inc. as Appellees; and Cas and Virginia Walker as the Walkers.

Appellant appeals from a judgment entered against it by grant of motion for summary judgment by the Appellees and the Walkers.

On January 1, 1974, the Walkers entered into a written agreement with one Lambert, whereby the Walkers agreed to pay Lambert a portion of certain continuing royalty payments arising from the use of a rock quarry in Blount County, Tennessee. On November 26, 1974, by written agreement, Lambert assigned these royalties to Appellant. On January 27,1975, the Appel-lees secured a judgment against Lambert in the United States District Court for the Eastern District of Tennessee and, on or about May 29, 1975, to satisfy said judgment had garnishments served upon the Walkers to reach any property in the possession of the Walkers belonging to Lambert. The Walkers answered the garnishments paying the royalties, arising from the agreement of January 1,1974, due Lambert to the Appellees.

Prior to the levy of the garnishment upon the Walkers the Appellees had knowledge of the assignment of these royalties by Lambert to Appellant, although this assignment had not been recorded in Blount or any other county in Tennessee. Prior to the levy of the garnishment upon the Walkers the Walkers had no notice or knowledge of the assignment of these royalties by Lambert to Appellant.

On October 13, 1975, Appellant filed its complaint in this cause against the Appel-lees and the Walkers claiming by virtue of the assignment of November 26, 1974, Appellant, as to these royalties, had priority over Appellees who were in fact judgment creditors with knowledge of the assignment of November 26, 1974, prior to the levy of the garnishment upon the Walkers.

Appellant assigns errors as follows:

1. The Court erred in accepting and considering on the day of the hearing of motions for summary judgment Appel-lees sole affidavit in support of their motions, as the affidavit was not filed together with the motions for thirty (30) days before time for a hearing.
2. The Court erred in granting summary judgment for the following reasons:
a. The issue of whether the assignment from Lambert to Appellant was an assignment intended for security presented a material question of fact.
b. The Court wrongfully concluded, that as a matter of law, a judgment creditor, having issued garnishment on a debt in the hands of another with knowledge of a prior assignment of the debt, takes priority over a prior assignee of the same debt.

Under the first assignment of error to remove a problem it should be noted the motion for summary judgment was filed more than thirty days prior to the hearing thereon. The error alleged is to the action of the Chancellor in allowing and considering an affidavit in support of the motion filed on the day of the hearing. Appellant relies upon the recent case of Craven v. Lawson, 534 S.W.2d 653 (Tenn.1976) and Rule 6.04(2), Tennessee Rules of Civil Procedure which reads in pertinent part as follows:

When a motion is supported by affidavit, the affidavit shall be served with the motion; .

In the Craven case the court construed the word “shall” in Rule 56.03 TRCP as a mandatory requirement in the context therein used as opposed to a discretionary requirement. Appellant argues the word “shall” as used in Rule 6.04(2) TRCP should be likewise construed as a mandatory requirement, that is, an affidavit filed in support of a motion for summary judgment has to be filed with the motion. We agree with this argument but the court in Craven also stated as follows:

In this case the facts as pleaded, bearing on the issue made on defendant’s summary judgment motion are undisputed and the question presented is one of law only. In the interest of the orderly and expeditious disposition of litigation and to serve the manifest interest of the parties in this case we must finally decide that legal issue on this appeal, the effect of which is to render harmless the error of the trial judge. However, it should be apparent that where there is the slightest possibility that the party opposing the motion for summary judgment has been denied the opportunity to file affidavits, take discovery depositions or amend, by the disposition of a motion for summary judgment without a thirty (30) day interval following the filing of the motion, it will be necessary to remand the case to cure such error. 534 S.W.2d 655.

The purpose of the affidavit filed on the date of the hearing was to affirm that the Walkers had no knowledge or notice of the assignment of these royalties from Lambert to Appellant prior to the service of the garnishment on the Walkers. Appellant makes no claim it has been prejudiced by this late affidavit or has been denied in any way an opportunity to counter same. To reverse on this assignment would serve the interest of neither party and in fact impede the disposition of the litigation for no purpose. The error is harmless and is overruled.

Under the second assignment of error (part b) the landmark case of Clodfelter v. Cox, 33 Tenn. 330 (1853), is cited. In this case the court said:

. The weight of American authority seems to be that the assignment of a chose in action is complete in itself, and-vests a perfect title in the assignee, as against third persons, without notice of the assignment to the debtor. But the contrary of this is the settled doctrine of the English, as well as of some of the courts of this country, at the present day. The latter we consider as the more reasonable and safe practical rule, and have accordingly held, on more than one occasion," that the assignment of a chose in action is not complete, so as to vest the title absolutely in the assignee, until notice of the assignment to the debtor; and this not only as regards the debtor, but likewise as to third persons. And, therefore, as between successive purchasers or assignees of a chose in action, he is entitled to preference who first gives notice to the debtor, although his assignment be subsequent to that of the other. To perfect the assignment, not merely as against the debtor, but also as against creditors and subsequent bona-fide purchasers, notice must be given. Hence it follows that an attachment by a creditor, in the period intervening between the assignment and the notice, will have preference.
This doctrine furnishes a definite rule for determining between opposing equities; and places the rights of the assignee of a chose in action upon a footing of security altogether unattainable under the opposite rule. 33 Tenn. 339.

This rule in Clodfelter has been followed in subsequent Tennessee cases. Lambreth v. Clarke, 57 Tenn. 32 (1872); Dews v. Olwill, 62 Tenn. 432 (1874); Flickey v. Loney, 63 Tenn. 169 (1874); Miller v. O’Bannon, 72 Tenn. 398 (1880); Daniels v. Pratt, 74 Tenn. 443 (1880); Robertson v. Baker, 78 Tenn. 300 (1882); Dillingham v. Traders’ Ins. Co., 120 Tenn. 302, 108 S.W. 1148 (1907).

Appellant does not argue with the rule announced in Clodfelter, but raises the issue that the fact Appellees had knowledge of the assignment to Appellant by Lambert on November 26,1974, prior to the levy of the garnishment on the Walkers on or about May 29, 1975, gives rise to priority in favor of Appellant.

In the Clodfelter case and those cases cited where the rule has been followed all involve a contest as to priority between an assignee and a garnishing or attaching creditor with each seeking the same fund. In none of these cases was knowledge on the part of the creditor, as to a prior assignment, made an issue.

We have not been cited nor by research found a case we deem to be directly in point on this issue in the case at bar.

Appellant cites Haynes v. Gates, et al., 39 Tenn. 598 (1859). In the Haynes case William Croom gave certain notes to McElrath, an attorney, for collection on March 28, 1855. Then on April 2, 1855, Croom sold and assigned these notes to Haynes. On March 9, 1857, Gates, a judgment creditor of Croom, had a garnishment served on McElrath to reach the funds in his hands from the collection of these notes, which funds, under this garnishment, McElrath had paid to Gates. Haynes filed the bill in this cause to recover these funds from Gates on the ground they had been paid out under color of a void judgment obtained in a justice of the peace court. The court found in favor of the assignee Haynes on the ground the judgment obtained by Gates against Croom, from which the garnishment issued, was void.

Appellant does not rely upon the holding in Haynes but upon the last two paragraphs in the opinion, which we consider to be dictum, which paragraphs are as follows:

But even if the judgment were valid, the defendant, Gates could not, under the circumstances of this case, resist the decree sought against him. It is sufficiently established, by the allegation of the bill and the admission of the answer, that very shortly before taking out the process of garnishment, the defendant, Gates, acquired information from a conversation with the complainant [Haynes], of the funds in the hands of McElrath; and that complainant [Haynes] claimed said fund as belonging to him, by purchase from Croom.
With knowledge of this fact, thus acquired, as appears from the record, Gates resorted to the proceeding before mentioned, in order to appropriate the fund to the satisfaction of his demand against Croom and Russell. This he cannot be permitted to do. It would be, in the view of a Court of Equity, a manifest fraud on the rights of the complainant [Haynes]. The money belonged to the complainant [Haynes]; Croom had no claim to it, and no creditor of his had any right, under color of legal process, or otherwise to possess himself of it. And in doing so, the defendant, Gates, must be regarded, in equity, as having received it, and as holding it as the money of the complainant [Haynes], He is, therefore, clearly liable to refund it. And the result would, perhaps, be the same, even though he had obtained possession of the money in ignorance of the fact that it belonged to the complainant [Haynes]. 39 Tenn. 602. (Emphasis supplied.)

Under the above language from Haynes the Appellant argues even though the Clod-felter rule may be asserted as a general principle of law this language from Haynes has grafted an exception to the Clodfelter rule to the effect that equity will not permit a garnishing creditor to pre-empt a prior assignee of a fund when the creditor is charged with knowledge of the assignment.

In light of the facts in the Haynes case, the decision reached, and the fact the same member of the Court writing the Haynes opinion had six years previously written the Clodfelter opinion, we find the language above copied difficult to understand.

The language italicized above to the effect that “the money belonged to Haynes” and “perhaps the result would be the same even if Gates had no knowledge the money belonged to Haynes” may arise from another fact the court noted in its opinion; that prior to the service of the garnishment on McElrath, he [McElrath] had notice of the assignment to Haynes, which under the Clodfelter rule would perfect Haynes assignment placing the title in Haynes; that is, the money belonged to Haynes, which would be true whether Gates had knowledge of the assignment or not.

In dissecting the Haynes opinion, as applicable to the issue in the case at bar, we need to keep in mind the thrust of the original bill in Haynes was to obtain the fund from Gates on the ground Gates had received the fund upon a void judgment; and upon this issue the Court made its decision. Upon this issue the Clodfelter rule would not be at issue.

The Appellant also cites the case of Peters v. Goetz, 136 Tenn. 257, 188 S.W. 1144 (1916) which deals with two assignees seeking the same fund in a situation where the second assignee filed notice with the debtor but the first assignee did not. The court under the Clodfelter rule held the second assignee had priority by perfecting his assignment in giving notice to the debtor.

The Appellant does not rely upon the holding of the Court in Peters but upon the following language used by the writer in that opinion:

“ . . . as between several bona fide purchasers for value or assignees of a chose in action, that one is entitled to preference who first perfects his assignment by giving notice to the debtor, and the priorities of such successive assignees will take effect from the time when they give notice to the debtor, and not from the date of execution. In order that the general rule regulating the rights of successive assignees according to priority of notice should have application, it is necessary that the second assignee at the time he received his assignment should be without notice of the prior assignment.” 136 Tenn. 262-263, 188 S.W. 1146.

The Appellant argues this language in Peters recognizes the fact equities are not equal where a subsequent assignee obtained his assignment with notice of a prior assignment. We agree this language imports such a conclusion, but it is not a holding of the court on this point and because it is not necessary to the decision, is dictum. In Peters the court at the outset noted, “There is no question made upon any of the assignments involving their bona fides,” which is to say the second assignee purchased for value without notice of a prior equity which would remove the issue of notice by the second assignee of a prior assignment.

Appellees cite Miller v. O’Bannon, 72 Tenn. 398 (1880) and Penniman & Bro. v. Smith, 73 Tenn. 130 (1880), for the proposition that attaching creditors are treated differently from subsequent assignees. These cases do state that in a contest between creditors of a common debtor it is a question of diligence, not of equity, and the creditor who first perfects his right by notice to the debtor must prevail; but in neither of these cases was knowledge of a prior assignment by the attaching creditor made an issue.

The decision here involves the balancing of equities between two parties, each in fact having a lawful claim on the same fund, which is what the court did in announcing, in Clodfelter, the rule to be followed in such cases. The capstone of the Clodfelter rule, as to an assignee of a chose in action, is to give notice to the debtor which action places title in the assignee good against third persons including subsequent assignees and creditors.

We can see without so deciding (such not being necessary to a decision in the case at bar) where an exception, so to speak, might be grafted on the Clodfelter rule in a situation involving a first and subsequent as-signee, where the subsequent assignee purchased with notice of an existing first assignment. In such a situation equity could require the subsequent assignee’s rights be postponed to the rights of the first assignee, even though the subsequent assignee perfected his assignment by giving notice to the debtor and the first assignee did not. The equitable point is that the' second as-signee purchased with his eyes open, that is, he is not a bom fide holder. The situation of a creditor is different.

Dissecting the Clodfelter rule as to the part most pertinent to the decision in the case at bar, we find:

To perfect the assignment, not merely as against the debtor, but also as against creditors . . . , notice must be given. Hence it follows that an attachment by a creditor, in the period intervening between the assignment and the notice, will have preference. 33 Tenn. 339.

This language is in no way ambiguous. It is clear and subject to only one interpretation. We know of no logical reason to graft thereon an exception where the creditor had knowledge of a prior un-perfected assignment prior to perfecting his claim by service of a garnishment.

We hold the Appellees, by serving its garnishment prior to Appellant perfecting its assignment by notice to the Walkers, had priority. Such works no inequity on Appellant since it had six months to perfect its assignment.

Under the second assignment of error (part b) the Appellant argues that a summary judgment is inappropriate because a material question of fact is presented — was its assignment from Lambert intended as a security instrument? In support of this assignment Appellant cites T.C.A. Sec. 47-9-301 and alleges this statute prohibits a lien creditor from taking a priority over a creditor with an unperfected security interest where the lien creditor is shown to have knowledge of the security interest at the time he attains the status of a lien creditor.

Under this record the funds in the hands of the Walkers were received as royalties and/or rent payments arising from a lease on a rock quarry. T.C.A. Sec. 47-9-104 states that Chapter Nine does not apply “to the creation or transfer of an interest in . real estate, including a lease or rents thereunder.” Accordingly the funds in the hands of the Walkers would not be subject to Title 47, Chapter 9 of T.C.A.

It results all assignments of error are overruled. The judgment of the trial court is affirmed and the costs in this court payable by Appellant.

PARROTT, P. J. (E.S.), GODDARD, J., concur.