author: WASSERSTROM, Judge.

text:
    FIRST FLORIDA BUILDING, INC., a corporation, Plaintiff-Appellant, v. SAFARI SYSTEMS, INC., a corporation, Safari Inc., Columbia, a Limited Partnership, Larry M. Woods, and Legal Holder of Note Secured by Deed of Trust recorded in Book 406, Page 483, Deed of Trust Records, Boone County, Missouri, Defendants-Respondents.
    No. KCD 29353.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Patrick J. Eng, Welliver, Atkinson & Eng, Columbia, for plaintiff-appellant.
    Larry M. Woods, Sapp, Woods & Orr, Columbia, for defendants-respondents, Larry Woods and First Bank of Commerce.
    Before SHANGLER, P. J, SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The question for determination is whether plaintiff First Florida Building, Inc. is entitled to a mechanic’s lien. The trial court held no, and First Florida appeals.

In the early 1970s, Safari Systems, Inc. was engaged in building and operating automobile trailer camp grounds in various locations throughout the United States. In 1972 it decided to build and install such a unit near Columbia, Missouri, on a 200 acre tract on which there stood a preexisting camp ground which covered approximately 20 to 30 acres. Safari had been contracting with First Florida for the erection of similar camp grounds elsewhere, and in October, 1972, Safari entered into a contract with First Florida for the building of the Boone County, Missouri unit. That original contract provided for First Florida to be paid the cost of the work performed plus 10% as its contractor’s fee. Article 6.2 further provided that: “The maximum cost to the Owner, including the Cost of the Work and the Contractor’s Fee, is guaranteed not to exceed the sum of ONE HUNDRED THIRTY THOUSAND & no/100 DOLLARS ($130,000.00); such Guaranteed Maximum Cost shall be increased or decreased for Changes in the Work . . . ”

Article 7.1 further provided: “Should the cost of the work performed plus the ten percent (10%) fee exceed the guaranteed maximum price as adjusted by Change Orders, the Contractor shall be paid only the adjusted guaranteed maximum price.”

In March, 1973, the parties agreed to an expansion of the contract to cover additional work including the remodeling of existing facilities. This additional work was authorized by letter agreement dated March 7, 1973, which provided: “It is understood that additional work should be performed on a cost plus 10% basis, and that the ceiling price of the contract shall be raised to $190,000.00.”

All of the work to be done by it was completed by First Florida in June, 1973. By that time Safari had paid $132,000, but it was in financial difficulties and unable to pay the balance due First Florida. The parties therefore entered into an agreement for extension of the time for payment. While the parties were still proceeding under that extension agreement, the statutory deadline for First Florida to file a mechanic’s lien came up, and on December 6, 1973, it did file its mechanic’s lien.

Thereafter Safari paid an additional $19,-912.52. However it then became insolvent and ultimately went through bankruptcy. The final balance left due as claimed by First Florida was $42,350.76, for which First Florida filed timely suit on May 29, 1974.

At the trial, Safari defaulted and the court entered a money judgment against it as prayed. The other parties proceeded to trial, at the conclusion of which the trial court filed a memorandum opinion finding: “The Court cannot with any degree of certainty, from the evidence adduced, determine those matters which are properly lien-able from those which are not. Accordingly, judgment for defendants and against plaintiff on mechanics lien.”

On this appeal, First Florida relies on the following points: 1) that the trial court made insufficient findings of fact; 2) that the court erred in finding that First Florida had not filed a just and true account; and 3) that the court erred in failing to find that First Florida had a right to allocate the final $19,912.52 paid by it to cover and thereby eliminate nonlienable items. Each of those points will be discussed in turn and shown to be without merit. Further, respondents argue additional points for af-firmance, one of which will be discussed in Section IV below.

I.

Sufficiency of the Findings

First Florida takes exception to the court’s failure to make findings of fact although allegedly requested by counsel to do so. The record fails to support First Florida’s assertion that it made such a request. The transcript shows only that: “Plaintiff files Request for Opinion.” Rule 73.01-l(b) provides that in a court tried case, the court shall file a brief opinion containing the grounds of decision if so requested by any party and shall, if requested by counsel, include finding “on such controverted fact issues as have been specified by counsel” (emphasis added). Counsel here requested an opinion and the court complied. Counsel did not specify any controverted fact issues upon which it requested findings, and the trial court cannot be charged with error for not making findings which were not requested.

Moreover, even if a request for specified findings had been made, a failure to comply would not constitute reversible error, and all fact issues would be considered as having been found in accordance with the result reached. P.I.C. Leasing, Inc. v. Roy A. Scheperle Const. Co., Inc., 489 S.W.2d 219, 222[7] (Mo.App.1972). See also Hahn v. Hahn, 569 S.W.2d 775 (Mo.App.1978).

II.

Sufficiency of the Statement of Account

Section 429.080 (all statutory references are to RSMo 1969) provides that in order to obtain a mechanic’s lien, the original contractor must within six months after completion of the work file with the clerk of the circuit court “a just and true account” of the demand due him. A failure to comply with this requirement calls for the vitiation of the entire lien unless the error is a “result of honest mistake or inadvertence without intent to defraud and if the non-lienable can be separated from the lienable items.” Sears, Roebuck & Co. v. Seven Palms Motor Inn, 530 S.W.2d 695 (Mo. banc 1975).

First Florida admits that it made some errors in its statement of account filed December 6, 1973, but it contends that these admitted errors and any others which it may have committed were inadvertent and separable within the meaning of the rule last above quoted. It therefore contends that, contrary to the ruling of the trial court, a lien should have been allowed in its favor in a corrected amount.

Respondents have cited 19 alleged errors in First Florida’s statement of account which respondents argue are inconsistent with good faith on the part of First Florida and also present a situation in which non-lienable amounts cannot be separated from lienable items. Of those 19 alleged errors, First Florida conceded three at the time of trial. These mistakes related to $150 for trailer rental, $148.20 for a supervisor’s expense and $139.03 overstatement of payroll taxes. If these three items represented the full extent of what was involved, those errors could be treated as inadvertent mistakes readily separable and could be deducted from the amount due without vitiating the entire claim of lien. However, these three errors are far from all.

At the close of trial, First Florida filed a reply brief in which it conceded two more errors in its account. The first of these is a small item, $161.15 for a saw which First Florida included in its account on the theory that the saw was consumed in the course of the job. First Florida in its after trial brief conceded that the saw was not so consumed, and it agreed that this item should properly be deleted from the account. This error is quite minor and could also be treated as inadvertent error of a separable item similar in nature to the first three errors already discussed.

The second error conceded by First Florida in its after trial brief stands on a different footing. This second item relates to the cost of an office located on land leased by Safari outside of (although near) the 200 acre tract owned by it. In its after trial brief, First Florida admitted that it cannot claim a lien with respect to improvements on land never owned by Safari; but it offered by way of excuse that it did not have reason to suspect the true state of facts until about four months before trial and that the full facts were not developed in this respect until the evidence at trial. Inasmuch as First Florida by its own admission did have some reason to suspect the true facts at least for four months before trial, and since all the pertinent facts were readily available to it at all times, it is difficult to pass off this error as mere good faith inadvertence. Even accepting First Florida’s claim of good faith in this regard, this item presents the insuperable objection that the amount of labor and material expended on the off-site office is not clearly established as to amount. Collins, First Florida’s manager in charge of accounting functions, admitted in his testimony that First Florida had no record reflecting the costs of constructing or improving that office. The evidence which was introduced concerning those costs were mere loose estimates ranging from $2,000 to $5,000. First Florida, as lien claimant, had the burden of proving the amount of this item as well as all others included in its statement. Bremer v. Mohr, 478 S.W.2d 14 (Mo.App.1972). Its offer of mere estimates as to this item could be accepted or not according to the judgment and discretion of the fact finder, in this case the trial judge. The conclusion by the trial court that the varying estimates did not establish this item “with any degree of certainty” cannot be successfully challenged.

Of the remaining items of which complaint is made by respondents, it will be sufficient to discuss only two. The first of these is the item of so-called “extras.” In the mechanic’s lien statement filed December 6,1973, First Florida set forth the total amount due to it, before credits for partial payments, as follows:

“10-16-72 Contract calling for total amount due, plus extras $190,000.00
Extras 4,263.28
See attached computer read-out described as Exhibit A for detailed Job Cost Report.
Total Debits $194,263.28”

The same figures were repeated in the petition filed to initiate this suit on May 29, 1974.

Counsel for respondents attempted to explore this item of extras with Miller, First Florida’s President, but Miller disclaimed any knowledge with respect to it and referred the matter to Collins for answer. Counsel also attempted to explore this question with Sands, the superintendent for First Florida on this job, but Sands also disclaimed knowledge and he also referred the question to Collins, whom he said should have the answer. When Collins’ turn to testify came, counsel again went into the question with him.

Collins’ testimony with, respect to this item is very unsatisfactory. His testimony on cross-examination concerning this matter is as follows:

“Q. What about the extras in this case? You have I believe in your suit four thousand some odd dollars in extras. Well, I’ll go through these exhibits here.
A. You can’t tell it from there.
Q. Can I tell where the extras are?
A. Not overall cost.
Q. Can you tell me how you picked out the extras or who did?
A. I didn’t negotiate the change orders, I don’t know. All I know is that we had a cost-plus with a upset, contract.
Q. With what?
A. An up-set, limited amount.
Q. Okay.
A. Now, how they arrived at that particular $4,000,1 can’t say. I have a good idea how it was arrived at but I can’t verify it.
Q. Who’s “they”?
A. Whoever prepared the change orders. That was not my function.
Q. Are you saying that the $4,000 in extras claimed are a result of change orders?
A. Have to be.”

As specifically stated in that testimony, Collins recognized that there was an up-set or top limit to the amount of which Safari was to be obligated. This was further and even more expressly acknowledged by Collins as follows: “Q. You will agree that the contract with Safari has an upper limit of $190,000? A. Yes, sir.”

When pressed further to explain how the figure for extras was arrived at, Collins gave the following murky response:

“A. To my knowledge, no one pulled any figures out. We had a contract on a cost-plus. We had charges that had come through approximating these costs, so we raised the limit of the contract to cover these two. We, in addition, had a letter which I consider a change order from the accounting viewpoint on corporate stationery with the corporate president authorizing the contract value. So that kept increasing the contract. Now, that letter was some lengthly [sic] period, several weeks before the job was finally closed and consummated and all the invoices in. And I better not say it because I am only going by recollections of conversations. So the $4,000 cost in my recollection, that we hadn’t been paid so we assumed then that all bets were off, the upset is gone and we’ll just bill on a straight cost-plus basis because we have invested the money and we have not been paid for the job.”

Collins’ quoted testimony is confusing to say the least. A fair interpretation seems to be that Collins assumed that when Safari failed to pay the full maximum price when that became due, then “all bets were off, the up-set is gone” and First Florida became entitled to disregard the contract term setting a maximum limit of $190,000. If First Florida were now attempting to urge such a position, the contention would have to be rejected.

But First Florida does not attempt to stand on the ground chosen by Collins. Ignoring the language of its lien statement claiming this $4,263.28 as “extras”, and ignoring the like language of its petition, and completely walking away from the testimony by Collins, First Florida now takes the position that the $4,263.28 was not for extras at all. Its new position is set forth in its brief in this court as follows: “There is no charge for extras listed in appellant’s mechanic’s lien statement. $4,263.28 for extras is arrived at by taking the total amount of job cost and tacking on the 10%. With such 10% comes to $194,263.28.”

First Florida’s present position on this item is equally as indefensible as that given by Collins. Even overlooking the fact that this new position is at variance with the wording of the lien claim and petition, the present claim is vulnerable to two unanswerable objections. First, the basic contract of October 16, 1972, and the letter amendment of March 7, 1973, are susceptible of no other construction than that the ceiling price of the contract, including the 10% contractor’s fee, was not to exceed $190,000. First Florida’s present contention flies directly in the face of that contractual limitation. Second, if the 10% add-on were permissible over and above the $190,000, that percentage would have to have some cost basis against which to be applied. The cost basis indicated by the lien statement and the petition is $190,000. If the claim of 10% is applied against that cost figure, the result is an add-on of $19,000 rather than $4,263.28. Thus the $4,263.28 figure is left hanging loose in a void, entirely an enigma.

Possibly the inclusion of this item may have originated as a good faith mistake (even though Collins’ testimony tends to indicate a deliberate determination by First Florida to disregard and violate the contractual terms). Even so, the error should have been corrected as soon as it became apparent. Putnam v. Heathman, 367 S.W.2d 823 (Mo.App.1963). Here the error became quite apparent from the testimony given at trial. Yet First Florida did not even then concede the error, but instead persisted even to the extent of disregarding the testimony of its own accounting manager and coming up with a new explanation which is at least equally fallacious. Here, as in Putnam, First Florida continues with its untenable contention to the very hour of determination on appeal. For the same reason that innocent motives were not found in Putnam, so also they should not be found here.

There remains for discussion still another important error in the First Florida account. In the cost of the job, there are included amounts aggregating $23,182.17 paid to Don Sands, the job superintendent, for payroll and expenses. The evidence shows without contradiction that during the time that Sands received these payments he was also spending time and effort with respect to other jobs in other locations, particularly those being carried on simultaneously in Illinois and Indiana during the period that the Boone County, Missouri project was in progress. The evidence shows that Sands made a number of trips for these extraneous purposes and that particularly toward the end of the Missouri job he spent much of his time in the Missouri office dealing with the Illinois and Indiana problems. All of the money paid to Sands during the period of the Boone County, Missouri project was charged to that project (with one minor exception) and no attempt was made to deduct from the Missouri expenses any allocation for work done for the benefit of the other Safari projects.

The best that First Florida has been able to come up with by way of excuse is that at an earlier time when Sands was working primarily on some earlier project and being paid his salary from that project, he took some time for the benefit of the Missouri project. This justification was offered by Miller, who testified that “I suspect that while he was on some of our other jobs with Safari, he came into Boone County and did the same thing and his time was probably charged to the previous jobs, so we consider that to sort of balance out.” This explanation cannot be accepted for the reason that it is based on guesswork and because there is no basis upon which to verify any allocation of Sands’ time among the various jobs. First Florida had the burden of proving the amount truly allocable to the Boone County, Missouri job, which it failed to do. Bremer v. Mohr, supra.

The testimony on behalf of First Florida also suggested by way of excuse the very long hours worked by Sands, so that regardless of the time which he may have taken off for other jobs, he still put in 40 hours every week on the Missouri job. Sands may have worked long hours, but it must be assumed that he was paid salary and bonuses commensurate with and to cover those long hours. The number of hours which he may have worked in any week does not dispense with the requirement of allocating to the Boone County, Missouri job only that share of Sands’ time which was devoted to that job.

In this court tried case, the judgment of the trial court must be affirmed unless it failed to follow the correct principles of law, is not supported by substantial evidence, or is contrary to the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment here with respect to the inadequacy of the lien statement suffers from none of those infirmities.

III.

Right by First Florida to Allocate Payments

After the lien statement was filed, Safari made further payments aggregating $19,-912.52. First Florida argues that Safari had the first right to determine how those payments should be allocated, but that when Safari failed to do so, then First Florida had the right to make allocation. Title Insurance Corp. of St. Louis v. United States, 432 S.W.2d 787 (Mo.App.1968); Scott v. Twin City State Bank, 537 S.W.2d 641 (Mo.App.1976). First Florida says that it therefore has the right to allocate the $19,912.52 toward wiping out all of the non-lienable items erroneously included by it and that the trial court erred in refusing to give effect to that right. This line of argument contains a number of flaws.

In the first place, the question at issue is the sufficiency of the lien statement filed December 6,1973. The payments now in question were not made until subsequent dates. It is difficult to see how payments made after expiration of the statutory six months could serve in any way to patch up the lien statement.

Further, First Florida did have an opportunity to make allocation when it first reported the payments aggregating $19,-912.52, that is when it filed its court petition. The statement of account submitted by it at that time did not, however, attempt to apply any part of the payments in question as to any particular items, lienable or nonlienable. Instead, the First Florida statement attached to its petition showed a total lump sum debit balance due of $194,-263.28, against which it applied total credits in one lump sum of $151,912.52. Since First Florida made no attempt whatsoever to make any allocation between lienable and nonlienable items, it is in no position to charge the trial court with having denied it that right.

Still further, as has already been pointed out, there are substantial sums (particularly with respect to the off-site office and Don Sands’ salary) as to which there is no accounting basis upon which to make an allocation between what is lienable and nonlienable. Also to be noticed is the fact that the item of extras is being denied not because it is nonlienable, but rather because it is not due at all under the terms of the construction contract.

Although not included within its Point Relied On, First Florida attempts to expand its argument under this point by reliance upon the rule that when neither the debtor nor creditor has made application of a payment between items, “then the law will make the application as right and justice requires.” Title Insurance Corp. of St. Louis v. United States, supra. Even if this expanded argument were properly presented, it would have to be rejected. As already pointed out, there is no adequate accounting basis upon which such an allocation can be made. Still further, in view of its action with respect to the items of “extras”, First Florida has not proved a case in which justice demands that the law make an allocation which First Florida itself did not make.

IV.

Adequacy of the Property Description

Statutory Section 429.080 requires that the lien statement set forth “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” Section 429.010 restricts the amount of land upon which the lien can be claimed “to the extent of one acre.” In purported compliance with these statutory requirements, First Florida’s lien statement described the premises upon which it claimed the lien as “Not more than One (1) acre” of land lying within a metes and bounds description of the entire 200 acre tract owned by Safari and on which the contract work had been done by First Florida. Respondents contend that this description is totally inadequate, inasmuch as it was incumbent upon First Florida to adequately describe the particular one acre claimed by it, in a way so that the one acre could be separately identified.

Although this point was not a ground relied upon by the trial court for its decision, respondents nevertheless have the right to urge this additional point in support of the result reached by the trial court. McHenry v. Ciaspill, 545 S.W.2d 690 (Mo.App.1976); Guild Management Co. v. Oxenhandler, 541 S.W.2d 687 (Mo.App.1976); Sears, Roebuck & Co. v. Peerless Products, Inc., 539 S.W.2d 768 (Mo.App.1976); C_ L_ R_ v. L_ B_ R_, 555 S.W.2d 372 (Mo.App.1977); Corley v. Kiser, 556 S.W.2d 218 (Mo.App.1977).

This problem of identification of one acre which exists as part of a larger tract has been the subject of much litigation. The many Missouri cases are collected in an annotation, “Sufficiency of notice, claim, or statement of mechanic’s lien with respect to description or location of real property,” 52 A.L.R.2d 12, Section 23(e) at page 91. The history of the Missouri rule, which the annotation states has been a checkered one, culminates with Hertel Electric Company v. Gabriel, 292 S.W.2d 95 (Mo.App.1956) which is the most recent Missouri decision on the subject. That opinion summarizes the Missouri rule to be that when a lien statement claims an undescribed one acre lying within an adequately described larger area, the determining factor as to the validity of the description consists of whether or not the contest is only between the original contracting parties or whether on the other hand the rights of third parties have intervened.

In the present case, the rights of third parties have intervened. At the time when First Florida filed its lien statement and at the time it filed this law suit, First Bank of Cbmmerce held a deed of trust on the Safari property. In October, 1974, subsequent to the filing of the present law suit, the Bank foreclosed its deed of trust and six months later it sold the property to J. W. and Arlene Duncan. Soon thereafter the Duncans transferred the property to Duman Incorporated, which was the owner at the time of trial. Since the rights of Duman have now intervened, the failure of First Florida to identify the one acre tract claimed by it must be treated as fatal under Hertel Electric Company v. Gabriel, supra.

Attempting to answer this point, First Florida contends that it did identify the one acre claimed by it as being that acre upon which the restaurant building, which was the most expensive improvement on the entire area, is located. The difficulty with First Florida’s contention is that the alleged description of this one acre appears for the first time in its post trial brief before the trial court. This very belated attempt at description cannot serve to remedy the failure to include a proper description in the lien statement as required by Section 429.-080.

Affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    Irene Rose HILGER, Appellant, v. Earl George HILGER, Jr., Respondent.
    Nos. KCD 28675, KCD 28800.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.

      William Brandecker, Ronald E. Smull, Brandecker & Smull, Columbia, for appellant.
    David V. Bear, III, Bear, Hines & Thomas, Columbia, for respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

These appeals arise from a dissolution of marriage proceeding. The trial court entered a decree of dissolution, division of property, an award of custody of two children to the petitioner-mother (appellant), child support, and separate maintenance. The appellant’s motion for a new trial was overruled and she took an appeal from that decree, which was lodged here as number KCD 28,675. Thereafter, in the court below, the appellant filed a motion for maintenance, child support pendente lite pending appeal of the principal decree, and for costs and attorney’s fee on appeal. A hearing on this motion was had and an order entered allowing appellant such an award for attorney’s fee and costs on appeal, and she took an appeal from that judgment, which was lodged here as number KCD 28,800. By order of this Court, these appeals were consolidated and are thus submitted.

The appellant’s assignments of error, in summary, are (I) the Court erred in the division of marital property contrary to Section 452.330 RSMo Supp.1973, and that the division was unjust, arbitrary and an abuse of discretion; (II) the Court erred in its award of child support contrary to Section 452.340 RSMo Supp.1973, and that such award was inadequate, arbitrary and an abuse of discretion; (III) the Court erred in failing to specifically set over to the appellant a Union Mutual Insurance Company policy as her separate property and that the portion of the decree dealing with the parties’ life insurance policies is vague, indefinite and ambiguous; and (IV) the Court erred and abused its discretion in allowing inadequate attorney’s fee and costs to appellant on appeal.

The transcript of the proceedings below consisting of 470 pages has been carefully reviewed. For the purpose of decision of these appeals, the great mass of evidence and exhibits need not here be discussed in detail. The facts now pertinent disclose that the appellant and respondent were married in 1951 and were permanently separated in April of 1973. They both agreed in the court below that the marriage was irretrievably broken and the extent and nature of the marital estate was stipulated. The respondent was a practicing dentist in Columbia, Missouri, in good health, whose adjusted gross income from his profession at the time of the hearing was approximately $50,000.00 and was shown to have gradually increased to that figure during his years of practice. The appellant had devoted her married life to being a mother and housewife, possessed no job skills, and had been under treatment for depression and other mental problems for a number of years. Her doctor testified that she had shown improvement since the separation. He stated that she is an adequate parent and able to care for the children.

There were four children born of the marriage. Carolyn, the older, was 22 years of age at the time of the hearing, did not live with either parent, and was fully emancipated. Randy, 19 years old at the time of the hearing, lived with his sister Carolyn, was earning $100 per week, and testified he was able to take care of himself. Debbie, aged 12 years, and Gene, 10 years, lived with the appellant and the decree of dissolution awarded their custody to her with visitation rights to respondent.

Without setting forth the detailed evidence, the appellant testified that her and the two children’s monthly living expenses were about $1,313.00. The evidence showed that the respondent’s expenses, including the payment of insurance premiums and taxes, were approximately $3,000.00 per month. There was no real dispute or conflict in this evidence, although the appellant testified that Randy, the older son, needed assistance from his parents when he was attending college to the extent of $100.00 per month, although he did not express such need.

The decree of dissolution awarded the appellant $500.00 per month for her maintenance and $200.00 per month per child for the two younger children.

In addition, the decree awarded the appellant $2,500.00 for attorney’s fee and $150.00 suit money. In addition, the court later awarded appellant additional sums of $750.00 attorney’s fee and $750.00 as suit money on appeal, but left the maintenance and child support awards as in the decree of dissolution.

The appellant’s position here is that these awards are so unjust and arbitrary as to evidence an abuse of discretion.

It is to be noted that the appellant asks this Court to so find and to award her $250.00 per month for each child in her custody, but makes no request for an increase in her maintenance award. The dispute in this area therefore now involves an increase of $1,200.00 per year in child support. She also asks this Court to increase the award of attorney’s fees on appeal to $2,000.00 ($1,250.00 increase) and the award for suit money on appeal to $1,000.00 ($250.00 increase).

The burden of demonstrating the error and abuse of discretion charged is upon appellant. Suesserman v. Suesserman, 539 S.W.2d 741, 743[3] (Mo.App.1976) and cases cited therein. Generally, awards of maintenance and child support in dissolution proceedings rest within the sound discretion of the trial court to be exercised within the legislative guidelines in Section 452.340 RSMo Supp.1973, and the record below is reviewed here only to determine whether that discretion was abused. Naeger v. Naeger, 542 S.W.2d 344, 347[6-8] (Mo.App.1976) and cases cited therein. See also, Roark v. Harvey, 544 S.W.2d 287, 291[1] (Mo.App.1976) wherein this Court applied the principles of review delineated by the Supreme Court in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976) and held that the fact that evidence appearing in the record which would support a different conclusion than that reached by the trial court did not warrant a reversal. 536 S.W.2d 30, 32[3], supra.

While the award made below cannot be said to be liberal, upon the facts in the record, the court below maintains continuing control over the matter of maintenance and child support and will from time to time upon proper showing review the awards and, if necessary and appropriate, adjust them to the then existing conditions. It cannot be said that the awards for child support, attorney’s fees and suit money here under review were arbitrary and unjust, and no abuse of discretion appears. Appellant’s Points II and IV are ruled against her.

Appellant’s Points I and III are considered together since both basically attack the decree below as it relates to the division of marital property. The decree of dissolution herein made the following division of such property (in summary):

1. To appellant: A mink coat and rings and other personal effects, an automobile, silver, and other specific items of household effects, silver coins and trophies. No value was placed on these items, except the automobile, which appellant stated was worth $300.00.

To respondent: Century State Bank stock representing an investment of $1,500.00 and, at the time of the hearing, of doubtful value; dental office equipment of undepreciated tax value of $9,691.00; professional accounts receivable, $30,877.25; Mercury automobile, $1,000.00; four (4) paintings, value not shown, and clothing and personal effects.

The court ordered that all other household goods be divided in kind or, in the absence of an agreement, be sold at private sale if parties agreed within six months or thereafter by the Sheriff of Boone County, and the net proceeds (in either event) to be divided equally.

2. The decree further provided that the family home be sold at private sale, if agreed upon, or at public sale after six months by the Sheriff. The net proceeds to be divided equally. The value of this property was $60,000.00-$65,000.00.

3. A pleasure boat owned by the parties to be sold under the same conditions and the net proceeds divided equally. Its value was placed at $1,900.00.

4. U.S. Savings Bonds to be divided equally, in kind, at their current value, which at the time of the hearing was $2,338.12.

5. An allowance to appellant of $15,-000.00 “as portion of value of insurance policies as of June 12, 1974".

As previously noted, the appellant attacks this division of marital property (I) because she was not allowed any part of the respondent’s dental equipment or accounts receivable or of his self-employment retirement program under the Keogh Plan or a money award in lieu thereof. She further assails the division (III) because the Union Mutual Insurance Company life policy No. 486856 was not set over to her as her separate property.

As part of the argument portion of her brief (but not as a part of the Points Relied On) she complains that a portion of the Century State Bank stock was not awarded to her. On this latter contention it should be noted that the original cost of this stock was only $1,500.00 and it was held in respondent’s name. There is no evidence coming from either party as to when it was acquired or whether or not it had any value at the time of the hearing.

Section 452.330 RSMo Supp.1973 provides that the court “shall divide the marital property in such proportions as the court deems just” after considering the statutory guidelines as set out in that section.

Before this Court should disturb the lower court’s actions under the authority of this statute it should appear from the record that the court erred or abused its discretion in decreeing the division, In re Marriage of Powers, 527 S.W.2d 949, 956-957[13] (Mo.App.1975), and a finding to that effect is not justified by the mere fact that the division may not be equal. There is no requirement, statutory or otherwise, that the trial court divide the marital property equally. Reed v. Reed, 516 S.W.2d 568, 570-571[5] (Mo.App.1974); In re the Marriage of Schulte, 546 S.W.2d 41, 46[3] (Mo.App.1977) and cases cited in Footnote 6, p. 46. Such division is not bound by any formula, “rigid methods or mechanics” but is “virtually unlimited so long as it effects a division contemplated in and mandated by the” statute. The statute and decisions view marital property as a partnership endeavor and “it enunciates a standard for dividing such property which is flexible enough to weigh and balance the respective contributions of the spouses and to accommodate considerations of manifest justness and fairness”. Corder v. Corder, 546 S.W.2d 798, 804-806[9, 12, 13] (Mo.App.1977).

Directing attention to the appellant’s claim of error and abuse of discretion in the court’s failure to award her any part of the respondent’s dental practice equipment and accounts receivable the respondent testified that the original cost of the equipment was about $49,000.00 but that he would probably accept $10,000.00 for it and that at the time of hearing his accounts receivable were $30,877.25. The record discloses that the parties had claimed depreciation on the dental equipment in their joint income tax returns and that at the time of the hearing and decree the undepreciated tax value was $9,691.00. There was no evidence offered as to the collectibility of the accounts receivable nor of past experience as to the average percentage of loss because of non-collectibility of such accounts.

It is apparent under the circumstances of this case that the interests of the appellant and the two children are best served by leaving the highly profitable dental practice of the respondent undisturbed.

Both parties assert that the court’s decree with reference to the life insurance policies is unclear as it relates to the disposition of these policies. This Court is asked to clarify and modify that part of the decree which states “the Court further orders that the petitioner (appellant) be allowed Fifteen Thousand Dollars ($15,000.00) as portion of the value of insurance policies as of June 12, 1974”. There are six policies involved but two of them must be treated separately. In this connection, the figures in the record as to the cash value of the policies is slightly at variance but for the present purposes round figures will be used.

Policy No. 645435 in the Indianapolis Life Insurance Co. is an annuity policy which was purchased by the respondent under the provisions of the Keogh Plan as a retirement program. Its cash value was about $16,000.00. A liquidation of this policy would involve a substantial tax liability. Here again, it would appear to the best interests of the parties and the children that this be continued undisturbed.

Policy No. 486856 in the Union Mutual Insurance Co. was issued April 6, 1966 in the face amount of $50,000.00. It has a cash value of $11,500.00. The parties agree that the appellant is the owner of this policy. The respondent has refused to deliver it to her. The best interests of the children would dictate that the custodial parent, appellant, continue this policy free from any claim by respondent.

The remaining four policies are all owned by respondent.

Policy No. 3999286 — Occidental Life of California, issued March 28, 1962, in the amount of $10,000.00, cash value $3,000.00.

Policy No. 4000743 — Occidental Life of California, issued March 28, 1962, in the amount of $30,000.00, cash value $8,500.00.

Policy No. 616716 — Indianapolis Life Insurance Co., issue date not shown, face amount $29,000.00, cash value $10,000.00.

Policy No. 660265 — Indianapolis Life Insurance Co., issue date not shown, face amount $61,200.00, cash value $1,000.00.

Allowing for some variance in the cash value computation of these policies, it is apparent that the court intended to set over to the appellant the Union Mutual policy and in addition award her $15,000.00, a total of $26,500.00 as an equitable adjustment of the insurance. The other five policies retained by the respondent, including the Keogh Plan policy, has an approximate value of $38,500.00. It cannot be said that such a division was unjust, arbitrary or evidenced any abuse of discretion.

The decree herein should be modified, however, so as to leave no doubt as to the ownership of these policies and the adjustment of the insurance holdings of the parties. That part of the decree is modified by the elimination thereof the reference to insurance and by including therein the following provision:

“Policy No. 486856 in the Union Mutual Insurance Company issued 4/6/66 in the face amount of $50,000.00 of which Irene Rose Hilger is the owner is hereby set apart and awarded to the petitioner Irene Rose Hilger as her sole and separate property.
The said Irene Rose Hilger is further allowed the sum of $15,000.00 to be paid to her in cash as an adjustment and division to her of the marital property represented by the insurance policies held by the parties.”

The respondent, Earl George Hilger, Jr., is awarded, and the following insurance policies are set apart to him, as his sole and separate property:

“Policy No. 645435 in the Indianapolis Life Insurance Co., an annuity policy under the Keogh Plan;
Policy No. 3999286 in the Occidental Life of California, issued 3/28/62 in the face amount of $10,000.00;
Policy No. 4000743 in the Occidental Life of California issued 3/28/62 in the face amount of $30,000.00;
Policy No. 616716 in the Indianapolis Life Insurance Co. in the face amount of $29,-000.00;
Policy No. 660265 in the Indianapolis Life Insurance Co. in the face amount of $61,-200.00.”

The judgment, as modified, is affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    Otis E. LANCASTER et al., Respondents, v. Edward L. SIMMONS et ux., Appellants.
    No. KCD 28993.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.
    Howard D. Lay, Kansas City, of counsel; Griffin, Dysart, Taylor, Penner & Lay, Kansas City, for appellants.
    John S. Newhouse and J. Samuel New-house, Independence, for respondents.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Because of alleged breaches of the terms and conditions of a contract for deed to farm lands about 412 acres, south of Lone Jack, Missouri, situated in Cass County, Missouri, plaintiffs brought their action, Counts I and II (intermingled) for judgment of possession of the lands, loss of rentals and waste, and for taxes; Count III, permanent injunction and accounting; Count IV, for quiet title; and Count V for conversion of standing timber. A change of venue having been taken to Jackson County, Missouri, the trial court, sitting without a jury, after making findings of fact and conclusions of law, entered judgment for plaintiffs: For possession of the lands and quieting title in them thereto; for $54,732.39, which must have included damages for rent, non-payment of taxes; and for $17,286.75, as trebled, for damages for conversion of standing timber. The trial court denied defendants’ prayer for specific performance, and the propriety of that action is the dispositive issue here.

After inquiries, the parties on January 8, 1968, entered into a contract for deed agreement for the sale of the 412 acres for $90,000.00. The contract was drafted by defendant, Edward L. Simmons, who is a lawyer. Initially, the contract provided for $100.00 deposit, and $9,900.00 not later than May 1, 1971, “and Two Thousand Dollars ($2,000.00) on or before Dec. 1, 1968 and on the 1st day of each succeeding Dec. thereafter with interest at 6% per annum, interest payable semi-annually on December 1st and June 1st beginning June 1, 1968, until the amount of Eighty Thousand Dollars has been paid.” Upon the payment of $9,900.00, sellers were to execute their warranty deed, taking back a note and mortgage to secure the $80,000.00 with 6% annual interest, payable semi-annually. Upon receipt of the $9,900.00, sellers were to release free and clear a described 6 acre tract in the NE corner of the SV2 of the NEVi of Section 12, Township 46, Range 30. The buyer was to pay all taxes thereafter becoming due and if not paid, the sellers could do so, and should be reimbursed for all amounts so paid with 8% annual interest. Written in is: “Said buyer is not to sell walnut logs prior to receipt of deed,” and “It is expressly understood and agreed that if the buyer shall fail to pay any installment, interest, or other payment for a period of 90 days after said payment shall become due and payable, then the amount theretofore paid by the buyer shall, at the option of the seller, be forfeited to the seller as liquidated damages for breach of this contract, and on such default, will be lawful and proper for the seller, or its assigns, to take possession of said premises, and it is further agreed that upon such default the buyer shall then become a tenant of the seller as a tenant from year to year and agrees to pay Five Thousand Dollars ($5,000.00) per year as rent for such premises.” It is further provided: “The seller shall within six months from the date hereof, deliver to the buyer a complete abstract of title to said property from the United States Government to this date with certificates by competent abstractors as to taxes, judgments and mechanics’ liens affecting said property. The buyer shall have 90 days after such delivery to examine the same.” An alternative option was given plaintiffs to provide title insurance.

The evidence is that defendants took possession of the land March 1, 1968, and just barely within the 90 day grace period sent a late payment of $1,350.00 and $18.40 interest (for late payment). Plaintiffs cashed the check. For the payment due December 1, 1968, plaintiffs, on March 1, 1969, acknowledged receipt of defendants’ check, dated February 2,1969, for $4,770.00, which was 89 days late, but expressed concern that payments were not made when due. A third check for payment, $2,676.74, was dated August 29, 1969, and presumably it was received by plaintiffs within the 90 day grace period, but it was dishonored because of insufficient funds. On September 17, 1969, plaintiffs, by Dr. Lancaster, wrote Simmons, “We have not sent your check back though. It would be better from our point of view to have a new check for the total cost excluding the interest on the money for this month of $2,727.43.” Dr. Lancaster acknowledged that he had never deposited the replacement check which he received. On September 20, 1969, defendants mailed a new check, $2,727.43, to plaintiffs, which date was 21 days past the grace period. The check bore on its reverse, “Accepted as full consideration for payment of June 1, 1969, and not as rent, under contract for deed on Cass County farm.” Because of that notation, plaintiffs did not endorse or negotiate the check. Also at this time, defendants wrote plaintiffs, “We are hoping to complete the down payment this year, so would like to examine the abstract as soon as possible.” This was the first time the contract provision for furnishing an abstract of title had been mentioned by defendants. Defendants’ bank statement, introduced into evidence, shows that on September 16, 1969, three days before they mailed the replacement cheek, $2,727.43, their balance was $2,784.32. On October 4, 1969, plaintiffs wrote the Cass County tax collector, and were informed that neither the 1968 nor 1969 taxes had been paid, the tax collector having previously been instructed to bill the taxes due to defendants.

On October 27, 1969, plaintiffs notified defendants that a statement had been received showing $724.02 unpaid taxes for 1968. At this same time defendants were notified that the contract option for forfeiture (liquidated damages) was exercised, and that the contract was converted to a year-to-year tenancy at $5,000.00 per year rental. There was also offered to defendants a lease for 1970, but this was never accepted by them. About November 1, 1969, plaintiffs received a letter from defendants stating that they had not yet received the abstract and informed them that no further payments would be made until plaintiffs furnished an abstract, and further insisted on selling back 98 acres of the farm “at approximately the same value as you sold it to me.” On November 3,1969, plaintiffs again notified defendants by letter that they had defaulted, and that the forfeiture was being exercised. Defendants responded, requesting again an abstract, and that the north 170 acres of the farm be sold and applied to the purchase price. On November 29, 1969, defendants in a letter stated to plaintiffs: “The Contract for deed is a sale and transfer of title of record and therefore you no longer have any farm to rent or anything else. * * * I am sure both of us are far to(o) busy to concern ourselves too much about a farm that is 50% useable across from a rock quarry that blasts too much to build foundations for improvement, but, as you point out, business is business. * * * We are not now and never have been in default in any payment or taxes under all the circumstances. We will keep the farm until you abide by your obligation under the contract. * * [I]f I do not receive my money back in full within thirty days, I shall sell enough of the farm to pay you off plus the small reasonable penalty provided and should you attempt to block any sale, I shall ask that you respond in damages for any loss of profits I shall have earned. * * * As soon as you decide to abide by your agreement you will find us willing to perform our end of it. * * * fJ

Plaintiffs paid all back taxes from 1968 through 1974, and on December 29, 1969, wrote defendants informing them that since they did not elect to rent the farm for 1970, sixty days were given them to vacate the premises. A demand to quit the premises was again given on March 24,1970. On March 24, 1970, Dr. Lancaster again wrote defendants: “As you are aware you have defaulted on your payment due December 1 with grace period ending March 1. This is contrary to the contract for sale. This letter is written to inform you that you are remaining on the farm under protest. You were asked to give possession March 1, 1970.”

Apparently, negotiations to reopen the contract for deed were made beginning April 1, 1970, when a binder for title insurance [which was plaintiffs’ option under the contract] was issued by the Title Insurance Company of Minnesota. Defendants objected in certain respects and an amended binder was issued. Simmons acknowledged at trial that his objections to the title were insubstantial. Plaintiffs’ counsel wrote to defendants on May 27, 1971, enclosing the amended title report as final proof of plaintiffs’ ownership, and noting that counsel felt that defendants’ previous default should forfeit any right to the property. Enclosed was a statement of principal and interest due under the contract, and advising that if full and total compliance with the contract was not immediately forthcoming, “we will expect your surrender of the possession of the premises, together with payment by you of the $5,000 per year rentals for 1969-1970, and 1971-1972 crop year.” Defendants responded, noting previous objections to title, setting forth a plan for payment in full in two years, and noting disagreement with counsel’s statement of amounts due. The re-negotiation efforts were fruitless and plaintiffs brought the present actions. At no time during any correspondence after plaintiffs’ first notice of forfeiture of October 27, 1969, did plaintiffs reference anything claimed to be a basis for forfeiture other than the late payment default on the June 1, 1969, installment. Dr. Lancaster’s letter of March 24, 1970, noting the lack of payment of the December 1, 1969, installment, did not declare a forfeiture for that reason. The demand for possession therein referenced a previous notice to vacate, which was a result of the ineffective October 27, 1969, declaration of forfeiture.

Because the only default insisted upon as would cause a forfeiture is the late payment of June 1,1969 [and the failure to pay taxes, below noted], a position maintained by plaintiffs in this court, the case must be reversed and remanded with directions for these reasons: There was no existing factual basis to invoke a forfeiture as of October 27, 1969, because Dr. Lancaster, for plaintiffs, had unequivocally waived the late payment by requesting a new check [declining defendants’ offer to supply a certified new check as the evidence shows] to replace the dishonored check. Tinnon v. Tanksley, 408 S.W.2d 98, 100, 104[8][9] (Mo.1966). The notation on the reverse of the check was not a new condition, but recites precisely for what the check was tendered: in full payment of the June 1, 1969, installment. The new check, including an amount for additional interest, was not deposited or otherwise negotiated by plaintiffs, but was held, even to trial, by Dr. Lancaster. The evidence shows that defendants had sufficient funds in the bank to pay the check on September 16, 1969, three days before the new check was mailed to Dr. Lancaster. That fact of sufficient funds to pay the check must be presumed to have continued for a reasonable time for presentment of payment, absent proof to the contrary, of which there is none. See the discussion of this proposition of law in Sanderson v. New York Life Ins. Co., 239 Mo.App. 688, 194 S.W.2d 221 (1946); Kreisman v. Kornfeld, 208 S.W.2d 79, 84 (Mo.App.1948); Martin v. Sloan, 377 S.W.2d 252 (Mo.1964); Clinton v. Staples, 423 S.W.2d 1 (Mo.App.1967); and see generally, Wigmore on Evidence, § 437, p. 413, et seq., and pocket part; 31A C.J.S. Evidence § 116, p. 199, et seq.

The parties had established the practice of using checks as the medium for tender of payment, so defendants must be deemed to have made a sufficient tender of the overdue June 1,1969, installment by their check of September 20, 1969, since plaintiffs had waived any other medium of tender. 86 C.J.S. Tender § 26, p. 570; Domyan v. Dornin, 356 S.W.2d 70, 72[3] (Mo.1962). Under these facts, Dr. Lancaster, on behalf of plaintiffs, could not sit back, hold the new check for more than a month, and place defendants in default. It was his duty promptly to present the new check for payment.

After Dr. Lancaster’s direct, unequivocal declaration of forfeiture of October 27, 1969, it was not incumbent upon defendants to make further futile and useless tender of their performance. After that date, plaintiffs always insisted that defendants were only tenants, with which they emphatically disagreed. Defendants were excused from thereafter making further tender; they offered at trial to make tender if specific performance was granted. See Wilkinson v. Vaughn, 419 S.W.2d 1, 7[13] (Mo.1967); Cooper v. Mayer, 312 S.W.2d 127, 130[2, 3] (Mo.1958).

As noted, the contract for deed provides that if defendants did not pay taxes, plaintiffs could do so and the amounts so paid would bear interest at the rate of 8% per annum until paid. Because this agreement created an obligation or debt separate and apart from the obligation of defendants to pay for the land, and that of plaintiffs to convey the land, the failure to pay taxes is not a basis for invoking a forfeiture, especially in view of the lack of a time within which the taxes should be paid by defendants. This does not mean, however, that defendants have no final obligation to pay the taxes and interest upon specific performance being decreed them.

The trial court erroneously applied the law to the facts of this case in granting plaintiffs a judgment of forfeiture, and all resultant damages which are not allowable inasmuch as defendants maintained their status as vendees throughout by reason of not being in default. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Other questions presented by defendants need not be ruled.

The judgment is reversed and the case is remanded with directions to award defendants a decree of specific performance upon their tender into court of their obligations under the contract for deed: full payment of the balance due on the purchase price with interest at the contract rate; the taxes paid by plaintiffs with interest according to the contract to the date of entry of the decree; less the cost of the title insurance policy provided by plaintiffs; and to enter judgment against plaintiffs and in favor of defendants upon all of plaintiffs’ claims.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Marcia LaROSE et al., Plaintiffs-Appellants, v. Bennie CASEY et al., Defendants-Respondents.
    No. KCD 29007.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Fred L. Slough, Kansas City, for plaintiffs-appellants.
    Russell D. Jacobson, Thomas B. Sullivan, III, William R. Williams, Void, Sullivan, Finnegan, Gordon & Williams, Manfred Maier, Kansas City, for defendants-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J, and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action for damages, compensatory and exemplary, in nine counts in behalf of four plaintiffs against five defendants, individually and as officers of the Police Department of the City of Kansas City. Judgment in trial court on jury verdict was unfavorable to plaintiffs on all counts. They have appealed.

On January 20, 1972, Marcia LaRose and her five children, ages seven to sixteen, resided at 3258 Gillham Road in Kansas City, Missouri. At around 11:15 P.M., 16-year-old James Carrillo, one of Marcia’s children, while either on the front porch of the house or near the house, depending upon whose version of the incident was correct, directed an obscenity toward either a passing police car or toward an officer who sought to question James. According to Marcia and James, James was upset because the police had towed away his automobile. They went to the front porch to discuss the matter out of the hearing of the rest of the family. A police car passed by and James shouted the obscenity. According to Marcia, she ordered James into the house and some five or ten minutes later, a police car stopped in front of the house, with the ensuing confrontation described below.

According to Officer Oliver, one of the defendants, he had investigated a prowler call and sought to question James about his identity and where he was going because his clothing matched to some extent that of the prowler. As he got out of the car, James yelled the obscenity at him and Oliver responded “You’re going to jail” or “You’re under arrest.” James then ran into the house.

Oliver used his police radio to call Officer Moss, another defendant, and request assistance in making an arrest. The call was heard by other patrolling officers and eventually some 10 police vehicles and 15 or 20 officers appeared at the Gillham Road address.

Officer Kasselman, also a defendant, was the first officer to arrive to assist Oliver. The two officers went to the front door of the residence. Mrs. LaRose was inside, behind the closed glass door. She asked the officers what they wanted and they told her that they wanted a person who had run into the house. They asked her to open the door. She inquired whether they had a warrant and the officers replied negatively. Two of the other children, Mark and Larry, were near the door and the officers pointed at Mark and said they wanted him. Mrs. LaRose refused to open the door. The officers pushed and banged on the door as other officers appeared.

After a period of time during which Mrs. LaRose telephoned neighbors for assistance, Mrs. LaRose returned to the front door where officers remained and she was aware that some officers had gone to the rear door. Officers at the front door broke the glass in the door and entered. At approximately the same time, Mrs. LaRose heard breaking at the rear door and other officers entered the house through that door.

According to plaintiffs, the officers entered the house and without provocation proceeded to beat the three unarmed boys. The officers had a different version.

According to Officer Oliver, he and Kas-selman and later Moss were at the front door, talking to Mrs. LaRose who was behind the closed door and explaining what they wanted. She refused to open the door because the officers had no warrant. Oliver could see the three boys inside the house. Two of them had armed themselves with knives and one with a ketchup bottle. They were shouting to the officers such remarks as “Come on into our house, pig, we’ll get you.” Oliver, Moss and Officer Liss went to the rear of the house to see if they could get in there. They tried the door and it was locked. The three boys, still armed, came to the rear of the house and shouted at the officers there.

Officers Kasselman and Casey remained at the front door. Kasselman heard one of the boys say “They are coming in the rear” and the three armed boys ran to the rear of the house, out of Kasselman’s sight. Kas-selman was concerned that the officers might enter through the rear and encounter the boys, not knowing they were armed. He, therefore, broke the glass in the front door and he and Casey entered the house.

At nearly the same time the officers in the rear broke in that door and entered the house. As Kasselman and Casey entered, one of the boys lunged at Casey with a knife. Casey drew his revolver and backed the boy into a corner. The boy again lunged at Casey with the knife and Casey struck him with his revolver. A second boy hit Kasselman in the mouth. Kasselman knocked the boy against a wall and other officers subdued him. Moss pursued James, caught him and fought to hold him as James tried to get away.

The officers eventually subdued the three boys and took them outside, placed them under arrest, took them to police headquarters where they were “booked” on various charges. They were turned over to juvenile authorities and eventually released without formal charges.

Mrs. LaRose was also arrested and charged with disorderly conduct and interfering with a police officer in the performance of his official duties. At a trial in Municipal Court she was found guilty on both charges. On appeal to the Circuit Court, the disorderly conduct charge was dismissed but she was found guilty of interfering with a police officer. Upon appeal to this court, her conviction was reversed but the case was transferred to the Supreme Court. In Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975), the judgment of conviction was affirmed.

The present cause of action was in nine counts against Officers Casey, Kasselman, Liss, Moss and Oliver, individually and as officers of the Kansas City Police Department. The claims stated were:

Count I — Marcia LaRose asked $105 actual and $10,000 punitive damages for trespass of all defendants into her home and their search of the premises.

Count II — Mrs. LaRose asked $508.50 actual and $10,000 punitive damages for assault and battery.

Count III — Larry Carrillo sought $500 actual and $10,000 punitive damages for assault and battery.

Count IV — A similar claim by Mark Carrillo.

Count V — A similar claim by James Carrillo.

Count VI — Mrs. LaRose asked $505.50 actual and $10,000 punitive damages for false arrest and imprisonment.

Counts VII through IX — Larry, Mark and James separately asked $500 actual and $10,000 punitive damages for false arrest and imprisonment.

Prior to trial, defendants’ motion for summary judgment was sustained as to Count VI. Upon trial various defendants had motions for directed verdicts sustained as to various counts but all counts except VI were submitted to the jury which found in favor of defendants on all such counts. After their motion for new trial had been overruled, plaintiffs appealed.

Appellants’ first assignment of error is based upon the trial court’s sustaining the defendants’ motion for summary judgment as to Count VI and limiting the submission by appellant LaRose on Count I. In both instances, the trial court’s action was premised upon the conclusion that by virtue of the case of Kansas City v. LaRose, supra, the doctrine of collateral estoppel precluded relitigation by appellant LaRose of the issue of the right of the officers to enter the LaRose residence.

The history of Kansas City v. LaRose has previously been detailed. In affirming her conviction for violation of the Kansas City ordinance relating to interfering with police officers (Section 26.35, Revised Ordinances of Kansas City, Missouri), the court, in answering the contention by Mrs. LaRose that the officers had no right to enter her house without a warrant and that she, therefore, had the right to refuse to admit them, stated (524 S.W.2d 119[12]): “We rule that the officers had a right to enter defendant’s home under the circumstances presented.” In the present case, the trial court quoted this language in holding that Mrs. LaRose’s claim of trespass could not be submitted on the basis of the officers forcefully entering her house and would have to be limited to a claim based upon a search of the entire house, as testified to by witnesses for plaintiffs. The trial court also relied upon Kansas City v. LaRose as the basis for sustaining defendants’ motion for summary judgment as to Count VI, Mrs. LaRose’s claim for false arrest and imprisonment.

By their original brief, the trial court’s ruling was attacked by appellants as an erroneous application of the doctrine of collateral estoppel because of the absence of identity of parties in the two actions. A reply brief on behalf of appellants has considerably expanded the scope of their attack upon the trial court’s ruling to include, among other matters, an attack upon the Supreme Court’s conclusion in Kansas City v. LaRose, supra, that the officers had probable cause for the arrest of James and had the right to enter the house without a warrant and the applicability of collateral es-toppel in the case of a judgment based upon a charge of violating a municipal ordinance. Such an expansion by reply brief of the basis of error on the part of the trial court is not the proper function of a reply brief. However, these contentions will be considered, except insofar as appellants attempt to inject constitutional questions for the first time by reply. Clearly, constitutional questions must be raised at the earliest possible time in the proceedings and a reply brief is inappropriate for such purpose.

This court some time ago abandoned the requirement of identity of parties as an element of collateral estoppel where the estoppel is asserted against the party against whom the issue was decided in another case. In the case of In re Estate of Laspy, 409 S.W.2d 725 (Mo.App.1966), Judge Cross quoted approvingly the criteria set forth in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 895 (1942), for determining the validity of a plea of res judicata (409 S.W.2d at 737): “Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?”

Appellants would limit the Laspy holding to cases in which the prior conviction for a criminal offense is employed against the convicted person in an action in which he seeks to benefit from the crime which he committed. Whether or not a conviction in a criminal case might otherwise be used as a basis for collateral estoppel need not be pursued.

However, it is clear that this court has not limited Laspy to the narrow factual situation there involved. Thus, in Matter of the Estate of Gould, 547 S.W.2d 863, 869[1] (Mo.App.1977), the executor of an estate seeking compensation for his services was held precluded from relitigation of the issue of his misconduct in that position which had been established in earlier proceedings for his disbarment from the practice of law, based in part upon his misconduct as executor. The court described the case as a “classic case of collateral estoppel * * 547 S.W.2d 869[1], Note is taken of City of St. Joseph v. Johnson, 539 S.W.2d 784 (Mo.App.1976), cited by appellants, in which this court considered the “disparity of parties” in refusing to permit a party in whose favor an issue had been decided to use such determination in another proceeding involving an entity not a party to the first action. However, the criteria approved in Laspy relate to the use of the prior judgment against the party attempting to relitigate the issue.

Appellants assert that the issues presented by Mrs. LaRose in her claims for trespass and false arrest are not identical with those presented in Kansas City v. LaRose. In that case the court found that Mrs. LaRose had violated the Kansas City ordinance relating to hindering a police officer in the performance of his duties. The offense was obviously committed in the presence of the officer. Mrs. LaRose does not assert that her claim for false arrest is based on grounds other than that her arrest was without probable cause. Her conviction has established that the officers did act with probable cause and the trial court properly sustained the defendants’ motion for summary judgment on this claim. See Carter v. City of St. Petersburg, 319 So.2d 602 (Fla.App.1975).

On the trespass issue, the Supreme Court clearly upheld the right of the officers to enter Mrs. LaRose’s residence in the circumstances. In this court argument is advanced as to the correctness of that conclusion. However, this court is not the forum for correction of error on the part of the Supreme Court. The trial court correctly refused to resubmit the issue of the legality of the entrance by the officers. This court will not go into the constitutional ramifications of the arrest of James in view of the tardy assertion of a claim in this regard.

Mrs. LaRose asserts that the conviction of an ordinance violation should not be the basis for collateral estoppel because where the effect of a conviction is “likely to be a mere fine, the parties have not the incentive or the opportunity to fully litigate the issues.” This argument might have some merit if the municipal court conviction were the basis of the collateral estoppel. However, Mrs. LaRose litigated her conviction not only at that level, but throughout each succeeding level of the judicial system of this state. The assertion that she did not have a fair opportunity to litigate the issues out of which the collateral estoppel arises is obviously without merit.

No error on the part of the trial court in giving conclusive effect to the holdings of Kansas City v. LaRose, supra, has been shown.

Instruction No. 4 was a third method converse instruction under MAI 33.05, authorizing a verdict for defendants if the jury believed that the search of the house was limited to looking for other minor children of Mrs. LaRose “and/or” lost keys, or to effect the arrest of plaintiffs.

At the trial, evidence was offered by witnesses for plaintiffs, other than plaintiffs, after the plaintiffs had been brought outside the house by the officers, seven or eight officers searched all rooms in the house, both upstairs and down, going through drawers. Officer Moss testified that he went back into the house from the street after learning from Mrs. LaRose that there might be other children still in the house. He found two smaller children after a search in which he had the assistance of Officer Oliver. There was also testimony that officers were in the house looking for lost keys.

In this court, Instruction No. 4 is attacked on the grounds that it is not an MAI approved instruction, that it fails to follow the requirements for a third method MAI converse, that it is an improper modification of MAI No. 33.05 because it fails to converse an ultimate issue submitted in plaintiffs’ verdict-directing instruction and that it is not supported by the evidence. The motion for new trial attacked Instruction No. 4 as erroneous because “it misstates the law on the Fourth Amendment and the circumstances allowing lawful entry and there was insufficient evidence to submit any defensive instruction.” The complaints here voiced differ from those found in the motion for new trial. Review of objections to instructions is based upon the objections voiced in the trial court. Different and additional objections may not be raised for the first time in the appellate court. Bower v. Hog Builders, Inc., 461 S.W.2d 784, 797-798[4][5] (Mo.1970); Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 322[5] (Mo. banc 1975). In this court the instruction has been attacked for its lack of evidentiary support. The attack on the lack of evidentiary support for the instruction was stated in the motion for new trial as applicable to any defensive instruction. Appellants’ brief here acknowledges that there was support for the submission that the re-entry search was limited to looking for the younger children. No argument is here advanced regarding the insufficiency of the instruction under the Fourth Amendment. The evidentiary support ground preserved for review is without merit. Other objections have not been preserved so no basis for a finding of error appears.

Instruction No. 8 was an instruction given at the request of Officer Kasselman as a defense to Mrs. LaRose’s claim for assault and battery. That claim was submitted to the jury against only Officer Kasselman and was premised upon the acts of Kassel-man in kicking in the glass of the front door, causing injury to Mrs. LaRose. Mrs. LaRose testified that the glass shattered and some struck and cut her. Instruction No. 8 told the jury that the verdict on this claim should be for defendant Kasselman if he used only the force necessary to make entry into the house. The assertion here is that the instruction is erroneous because it assumes that Kasselman had a right to make a forcible entry into the house, “which is not admitted by plaintiffs either as a matter of law or fact, and in fact is the most crucial and contested issue in the lawsuit.” This contention ignores the holding by the Supreme Court in Kansas City v. LaRose, supra, that the officers did have the right to make a forcible entry. The decision in that case supplies the answer to the objection now stated.

Points IV and V in appellants’ brief are as follows:

“IV. THE COURT ERRED IN GIVING DEFENDANTS’ AFFIRMATIVE DEFENSE INSTRUCTIONS NO. 16, 24 and 32 TO PLAINTIFF LARRY, MARK AND JAMES CARRILLO’S VERDICT DIRECTING ASSAULT AND BATTERY INSTRUCTIONS NO. 15, 23, and 31, BECAUSE THEY ARE NOT APPROVED M.A.I. INSTRUCTIONS AND UNDER THE LAW ARE NOT DEFENSES TO THEIR CLAIMS FOR ASSAULT AND BATTERY IN THE FACTS OF THIS CASE, AND BECAUSE THE DEFENSES ARE NOT SUBMITTED IN THE DISJUNCTIVE AS REQUIRED BY LAW, AND BECAUSE THEY ARE NOT SUPPORTED BY THE EVIDENCE.
“V. THE COURT ERRED IN GIVING DEFENDANTS’ AFFIRMATIVE DEFENSE INSTRUCTIONS NO. 12, 20 and 28 TO PLAINTIFF LARRY, MARK AND JAMES CARRILLO’S VERDICTING (sic) DIRECTING FALSE IMPRISONMENT INSTRUCTIONS NO. 11, 19 and 27, FOR THE REASONS THAT THEY ARE NOT APPROVED M.A.I. AFFIRMATIVE DEFENSE INSTRUCTIONS AND UNDER THE LAW ARE NOT A DEFENSE TO PLAINTIFFS’ CLAIMS FOR FALSE IMPRISONMENT BECAUSE THE DEFENSES ARE NOT SUBMITTED IN THE DISJUNCTIVE AS REQUIRED BY LAW, AND ARE NOT SUPPORTED BY THE EVIDENCE.”

The portions of plaintiffs’ motion for new trial which attacked these instructions read as follows:

“20. Because the court erred in submitting Instructions #12 and #16 as they misstate the law and the evidence in that there was no evidence whatsoever that plaintiff Larry Carrillo was even outside the house, much less committing any crime or violating any ordinance and any acts committed inside the home, which are not hereby admitted, were in defense of home and family and in opposition to his own unlawful arrest.
“21. Because the court erred in submitting Instructions #20 and #24 as they misstate the law and the evidence in that there was no evidence whatsoever that Mark Carrillo was even outside the house, much less committing any crime or violating any ordinances, and any acts inside the home, which are not hereby admitted, were in defense of home and family and in opposition to his own unlawful arrest.
“22. The court erred in submitting Instructions #28 and #32 in that they misstate the law and the evidence in that there was no evidence that James Carrillo committed any crime or violated any ordinance.
“23. Because the court erred in submitting Instructions #4, #8, #12, #16, #20, #24, #28, #32, #35 and #37, in that these instructions were not MAI approved.”

Comparison of the points here relied upon with the motion for new trial clearly shows that appellants have not briefed and argued here the objections to these instructions raised in their motion for new trial. The matters here urged, not having been presented to the trial court by the motion for new trial, have not been preserved for review.

As to each of these instructions as well as Instruction No. 4, above considered, appellants assert that the instruction is erroneous because of the failure to submit the various theories of defense disjunctively, as required by MAI No. 1.02. No such specific ^objection is to be found in the motion for new trial. The motion does attack the instructions as “not MAI approved.” However, it offers no statement of wherein the instructions failed to meet MAI approval. Such a general assignment is insufficient to provide a basis for grant of a new trial and therefore preserves nothing for appellate review. Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330, 333[1, 2] (Mo.App.1976); Stein v. McDonald, 394 S.W.2d 297, 300[4, 5] (Mo.1965).

Appellants, by their reply brief, request review of the claimed errors in instructions under the plain error rule. Rule 84.13(c). No “manifest injustice or miscarriage of justice” appears to have been caused by the errors asserted. This case was tried well on behalf of appellants. The issues presented to the jury, although numerous, involved basically contradictions in evidence which the jury resolved against appellants. No reason appears for application of the plain error rule.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Doyle D. AUSTIN, Respondent, v. KANSAS CITY GENERAL HOSPITAL AND MEDICAL CENTER, Appellant.
    No. KCD 29058.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      Gordon D. Gee, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellant.
    John W. Frankum, Gregory O. Grounds, Jones & McDaniel, Kansas City, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment of $4,946.05 for Doyle D. Austin in action against his employer for reasonable value of work and services performed for his employer in excess of ordinary duties. The questions are whether plaintiff pleaded and proved his cause of action; whether the court erred in its verdict-directing and damages instructions given on behalf of plaintiff; and whether the court erred in the exclusion of evidence offered by defendant and in the admission of evidence offered by plaintiff. Affirmed.

Appellant charges the court erred (I) in failing to dismiss plaintiff’s petition for failure to state a claim upon which relief could be granted. Appellant asserts that the petition “fails to allege the essential circumstances under which the rendition of valuable services for the defendant by the plaintiff must be made.”

Plaintiff pleaded: that on April 15, 1973, he was employed as a maintenance engineer for defendant at an annual salary of $13,-750 and that he was terminated April 12, 1974; that between those dates, at the special instance and request of defendant and due to the nature of the work, he performed work in excess of his ordinary and required duties for benefit of defendant; that defendant accepted such extra work; that it amounted to 816 hours; that the reasonable value of same was $7.00 per hour, $5,712, for which defendant became indebted to plaintiff and, although duly demanded of defendant, defendant has failed and refused to pay.

The foregoing allegations conform to those suggested for the petition in quantum meruit for extra services performed by a salaried employee, 21 Am.Jur. Pleading and Practice Forms (Rev.), Form 49, p. 761; and they embody the elements necessary to a prima facie case for the reasonable value of services rendered to another which he accepts, for which the law implies an agreement to pay, Sprague v. Sea, 152 Mo. 327, 53 S.W. 1074, 1076 (1899); Tomasso v. Sorbets, 147 S.W.2d 151, 152 (Mo.App.1941); Bennett v. Adams, 362 S.W.2d 277, 281 (Mo.App.1962); Kolb v. Howard Corp., 219 S.W.2d 856, 858 (Mo.App.1949). Compare Nolan v. Consolidated School Dist., 222 Mo.App. 59, 300 S.W. 523 (1927), and Krupnick v. Hellmich, 378 S.W.2d 562 (Mo.1964), where plaintiff failed to make a case in quantum meruit because his express contract precluded quantum meruit.

Appellant charges the court erred (II) in submitting the case. Appellant asserts, “there was no evidence that established, or from which it can be inferred, that the services rendered by plaintiff were rendered under the anticipation that he would be paid therefor * * * or that, in accepting the benefit of such services, defendant was or should have been aware that they were being performed by plaintiff under such an anticipation.”

Appellant’s contention goes to its general denial and defense of payment, and emphasizes testimony from its officers which tends to contradict plaintiff’s theory.

The evidence favorable to plaintiff demonstrates that he supported his petition, found to be sufficient, Point I, supra; and that he made a ease under the authorities there cited.

Doyle D. Austin was employed by General Hospital April 15, 1973, as maintenance engineering supervisor, a new position. He heard of the job opening from Stewart M. Sullivan, defendant’s Director of Plant Engineering. He made application for the job and was interviewed by Mr. Sullivan and Clifford Browne, defendant’s Administrator. They detailed the responsibilities of the job as supervisor of some 25 to 30 people in the maintenance department, under the immediate supervision of Mr. Sullivan. Starting salary was stated as $13,750 per year. They explained that the hospital was facing an accreditation inspection; that it was run down and in bad shape; that they had to get it up to a certain degree of acceptability for accreditation which would require a lot of hours. “Mr. Browne told me * * * that I would probably put in so many hours and I would get so disgusted with it that I would wish that I had never seen General Hospital, but not to worry about that, that at a later date I would be compensated for the extra time, after the accreditation was over with.” Mr. Austin understood extra time compensation would be by time off or in money.

Subsequent to the interview, Mr. Austin was notified that he had received the job, effective April 16,1973, at an annual salary of $13,750. He accepted the job and started to work April 16, 1973, at which time he received a New Employee Notice showing he was employed for 80 “scheduled work hours” per every two week pay period at an hourly rate of pay. He was not required to punch a time clock; he was required to keep time cards. He first kept his extra or overtime hours separately; later, he recorded them directly on his time cards. His department head, Mr. Sullivan, approved and signed the time cards without limitation or question. Mr. Sullivan kept similar records in his own behalf.

Mr. Austin was given a Personnel Policies and Procedures book which was modified by a change in July, 1973, which purported to limit “compensatory time” for employees in his classification to “five (5) working days * * * scheduled at the discretion of the department head.” Following receipt of this modification, Mr. Austin discussed its effect on him with Mr. Sullivan. Mr. Sullivan told him that he discussed the effect with the Administrator and advised him that overtime benefits would be taken care of “within our own department.” “We’ll work it out here, between us.”

Mr. Austin was terminated by General Hospital “due to fiscal difficulties,” at which time his performance was evaluated as “outstanding.” His hourly rate previously had been increased in October, 1973, to $6,593, and it was $6,995 at termination. He had accumulated 816 hours of extra work. He discussed his termination and pay for extra work with Mr. Sullivan, and was advised to see Charles Nigro, the new Administrator. Mr. Nigro was “aware of the overtime situation. * * * he said that he didn’t feel * * * I was entitled to it, but he turned right around and offered me five days, rather than to go into a bunch of details about it.” Mr. Austin advised Mr. Nigro of his agreements made by Mr. Browne, to which “Mr. Nigro said he went under his own rules.”

Mr. Austin evaluated his extra services at $7.00 per hour, and considered that rate for his 816 extra hours to be “fair and reasonable.”

Appellant charges the court erred (V) in giving Instruction 3 “because it allowed a recovery by plaintiff without requiring a finding that plaintiff intended at the time the work was furnished to charge therefor, or that defendant intended that plaintiff should be paid therefor.”

Instruction 3 was the verdict-directing instruction for plaintiff:

“Your verdict must be for plaintiff if you believe:
“First, plaintiff furnished valuable services to the defendant, and
“Second, defendant accepted such services.
unless you believe that plaintiff is not entitled to recover by reason of Instruction No. 4.”

Instruction No. 4 submitted the affirmative defense of payment on behalf of defendant:

“Your verdict must be for the defendant if you believe that plaintiff has already been paid for all services furnished to defendant.”

Instruction No. 3 is MAI 26.05, “Verdict Directing-Quantum Meruit-Goods Furnished.” The Committee’s comment in its citation of Bennett v. Adams, supra, and the Library References to C.J.S. and West’s Key No. Digests, Work and Labor, show that MAI 26.05 is intended as well for submission of Quantum Meruit-Services Rendered.

Appellant charges the court erred (VI) in giving Instruction 5 on damages:

“If you find the issues in favor of plaintiff, then you must award plaintiff the reasonable value of the services furnished to defendant beyond the services called for by plaintiff's annual salary.”

Appellant asserts the instruction fails (A) to limit recovery to five working days as provided in the manual; fails (B) to place any limitation on recovery; fails (C) to define the services called for in plaintiff’s annual salary; and (D) and (E) there was no evidence of the amount or reasonable value of services beyond those called for by plaintiff’s salary.

A. Plaintiff’s theory, supported in evidence, Point II, supra, is that the manual’s 5-day provisions did not apply to him.

B. The instruction properly limited recovery to the reasonable value of services furnished beyond the 80 hours’ work each two weeks called for by plaintiff’s annual salary. Cf. Cooper v. Norman, 424 S.W.2d 347 (Mo.App.1967).

C. There was no question that plaintiff had an annual salary of $13,700 for 80 hours per each two weeks.

D. Plaintiff testified that his time cards showed 816 hours in excess of the 80 hours per each two weeks called for in his salary agreement.

E. Plaintiff’s evidence showed his hourly rates of $6,593 and $6,995 per hour, and he testified that the reasonable value of his 816 hours’ extra work was $7.00 per hour. The jury found the value within those figures.

Appellant contends the court erred (III) in excluding competent, relevant, and material evidence offered by defendant.

This contention involves what appellant calls admissions against interest purported to have been made by plaintiff in his deposition. The court rejected the offer upon a finding that the items offered were not admissions and that they were “repetitious items that have already been covered or could have been covered' in either the direct or cross-examination of plaintiff.” It also involves instances where Mr. Browne, Mr. Sullivan, and Mr. Loya were not permitted to testify on ground of irrelevancy.

Appellant does not demonstrate an abuse of the trial court’s discretion in any of these instances.

Appellant also charges the court erred (IV) in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff.

This contention involves parol evidence from plaintiff relative overtime hours and pay therefor which appellant says violates the parol evidence rule with respect to the base contract of employment. It also involves receipt of plaintiff’s time records showing his overtime hours.

Plaintiff stated a case in quantum meruit for extra services performed by a salaried employee, Point I, supra. These items were material and relevant to the issues thus raised, and were not inconsistent with the terms of the base contract. George F. Robertson Plastering Co. v. Magidson, 271 S.W.2d 538, 541-542 (Mo.1954).

Judgment affirmed.

All concur.