author: CLAUDE WILLIAMS, Chief Justice.

text:
    A. B. MORROW, Appellant, v. Odie O. LaRUE, Appellee.
    No. 19068.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 15, 1976.

      Jerry Lastelick, Lastelick, Anderson & Hilliard, Dallas, for appellant.
    Bill Pemberton, Pat Winters, Pemberton & Green, Greenville, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

A. B. Morrow appeals from the order of the trial court denying his plea of privilege. Odie 0. LaRue (LaRue) sued Morrow Ford Tractor, Inc. and A. B. Morrow (Morrow), the sole shareholder of the corporation, on a promissory note payable in Hunt County, Texas. Morrow filed a plea of privilege contending that the suit against him in his individual capacity should be prosecuted in the county of his residence. LaRue filed a controverting plea seeking to maintain venue in Hunt County based solely upon Tex.Rev.Civ.Stat.Ann. art. 1995 § 5(a) (Vernon Supp.1976). Following a hearing before the trial court, Morrow’s plea of privilege was overruled. He predicates his appeal on the ground that the trial court erred since there is no evidence, or in the alternative insufficient evidence, to support the court’s finding that venue is proper in Hunt County. He argues that the fact that LaRue’s uncontro-verted testimony shows that although La-Rue, as payee, accepted a promissory note payable in Hunt County, Morrow signed a note in his capacity as the president of the corporate maker only and not in his individual capacity. We agree with Morrow’s contention and, accordingly, reverse the order of the trial court and render judgment that the cause of action as against Morrow, individually, should be transferred to the District Court of Rockwall County.

At the plea of privilege hearing, LaRue introduced into evidence a promissory note, dated December 2, 1974, which showed La-Rue as payee and Morrow Ford Tractor, Inc., as maker, with Morrow executing the note as its president. Morrow testified that he was president of the corporation on the date the note was executed and that he signed the note in his representative capacity as president only. LaRue testified that he was aware that Morrow was president of the corporation when he dealt with him on December 2,1974. He also testified that all payments which he received on the note were from the corporation and not from Morrow.

LaRue’s contention that venue properly lies in Hunt County is based upon subdivision 5(a) of the venue statute which reads as follows:

Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

LaRue argues that in a venue hearing which involves subdivision 5(a) he need only show that he is the holder and owner of the promissory note, that the note bears the signature of Morrow, and the note is payable in Hunt County. Thus, he contends that he is not required under this venue section to prove a cause of action against Morrow to establish venue. He relies upon such cases as Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698, 699 (1942); Scott v. Beaver, 405 S.W.2d 644, 645 (Tex.Civ.App.—Austin 1966, no writ); Pitt Grill, Inc. v. Albert, 432 S.W.2d 160, 163 (Tex.Civ.App.—Dallas 1968, no writ); and Blakely v. Craig, 505 S.W.2d 359, 361 (Tex. Civ.App.—Dallas 1974, no writ).

LaRue takes the position that the basic issue to be determined is whether the trial court correctly ruled that a defensive issue of individual liability on the contract in writing should be presented at the trial on the merits rather than at the plea of privilege hearing. More specifically, he relies upon Seale v. Nichols, 505 S.W.2d 251 (Tex.1974) for the proposition that personal liability is a matter to be decided either by summary judgment or in a trial on the merits and not at a plea of privilege hearing. In Seale, the supreme court was concerned only with an appeal from a summary judgment, and the note did not show on its face that the defendant signed in a representative capacity. In this situation the court held that representative capacity was an affirmative defense, which was not raised by the summary-judgment proof. The court did not address the sufficiency of proof during a plea of privilege hearing.

However, we agree with LaRue that subdivision 5 does not require proof at the venue hearing of Morrow’s liability on the contract. It does, however, require proof that Morrow is the person who has “contracted in writing to perform an obligation in a particular county.” The question is whether proof that the contract was made on behalf of a corporation and that the individual defendant signed only in a representative capacity is sufficient to establish that the individual defendant “has contracted in writing to perform an obligation in a particular county.” We conclude that such proof is not sufficient. If the contract shows on its face that the individual defendant signed in a representative capacity, then it is established that the “person” who contracted was the corporation rather than the individual.

In the case before us, the note shows on its face that Morrow signed it in a representative capacity, for the corporation. At the bottom of the note in question the signature line contains the following:

Morrow Ford Tractor, Inc.
By: A. B. Morrow (hand-written signature)
A. B. Morrow, President (type-written title)

It is apparent that the note on its face shows the person represented, i. e. the corporation as a legal person, and the representative capacity, i. e. “By” and “A. B. Morrow, President.” Consequently, Morrow has not individually “contracted in writing” to perform the obligation.

Finally, LaRue argues that subdivision 5 refers only to the person signing the contract and is not limited to the capacity in which that person is acting. We cannot agree. To so hold would permit any person acting as an agent for a corporation to be sued outside his county of residence in an individual capacity. We do not believe the legislature intended such a result.

The order of the trial court is reversed, and judgment is here rendered that the cause of action against A. B. Morrow be transferred to the District Court of Rock-wall County, Texas.

Reversed and rendered.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    CARDINAL PERSONNEL, INC. dba Business Men’s Clearing House Personnel Consultants, Appellant, v. Sheila A. SCHNEIDER aka Sheila Foster, Appellee.
    No. 1525.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 15, 1976.

      C. Pat Ellis, Ray Keller, Houston, for appellant.
    Timothy A. Tyler, Bellaire, for appellee.
   COULSON, Justice.

Cardinal Personnel, Inc., dba Business Men’s Clearing House Personnel Consultants, (hereinafter Cardinal) appeals from an order denying its application for a temporary injunction seeking to restrain Shelia A. Schneider aka Sheila Foster (hereinafter Schneider) from violating covenants in an employment contract. The order of the trial court is affirmed.

Schneider worked for Cardinal as an employment consultant from May 15, 1974 until she quit on the 18th of March, 1976, and immediately commenced working for Richard LaSorsa as ; an employee placement counselor. LaSorsa’s employment agency is located a few mijes from Cardinal’s office.

Cardinal alleges that Schneider is violating two covenants in her employment contract dated July 1, 1974. First, that she is engaging in the employment agency business within the proscribed period of time and geographic area. Second, that she has and will continue to contact clients of Cardinal within the proscribed time period. Since these two covenants are effective for different lengths of time, we must distinguish between the two alleged breaches of those covenants, i

The covenant not to engage in the employment agency business provides:

6. A. It is understood and agreed that in the event of the cancellation of this agreement, and/or the termination of employment hereunder, EMPLOYEE shall not, for a period of 6 months from the date of said termination of employment, engage in the employment agency business, directly or indirectly, or as an owner, operator, partner, officer, director, shareholder, employee, or contractor of another employment agency, situated or operated within a radius of 100 miles, in any direction, from a private employment agency owned by EMPLOYER, wherein EMPLOYEE is last employed at the time of termination of his employment hereunder.
B. In the event EMPLOYEE is in violation of any of the terms and conditions of sub-paragraph A above, the 6-month period of proscription from engaging in the same business as that of the EMPLOYER as set forth in said sub-paragraph A shall commence on the date that EMPLOYEE ceases to be employed or engaged in violation thereof, whether voluntarily or by injunction.

Schneider filed a motion to dismiss the appeal as moot predicated upon the fact that more than six months has expired since she terminated her employment. Cardinal contends that under 6(B) of the employment contract, the six-month period of proscription from engaging in the employment agency business will not commence until the date that Schneider ceases to be employed or engaged in violation of her contract, whether voluntarily or by injunction. This appeal is not moot because Schneider is currently engaged in the employment agency business, and no injunction has issued restraining her from so doing.

Paragraph 6(B) is in conflict with 6(A) which provides that the six-month period shall run “from the date of the said termination of employment . . . .” Cardinal’s position can be sustained only if paragraph 6(B) is valid and governs any conflict with 6(A). The position taken by Cardinal is rejected.

Covenants not to compete when ancillary to employment contracts involving trades or professions have been enforced in this State provided the covenants are reasonably limited as to duration and area. Carl Coiffure, Inc. v. Mourlot, 410 S.W.2d 209, 211 (Tex.Civ.App.—Houston [1st Dist.] 1966, writ ref’d n.r.e.). Although the territory or period stipulated by the parties may be unreasonable, a court of equity may enforce the covenant by reducing the territory or period to what is reasonable under the circumstances. Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 952 (1960).

This court is not faced with a situation where the parties failed to include any time period in the covenant or selected a period of too long a duration to be enforceable. If that were the situation, the covenant could be enforced after a reasonable reformation of its terms. Weatherford, supra. The covenant before this court is not susceptible to reformation because the covenant constructs a time frame ascertainable only by hindsight; i. e., the duration of the covenant cannot be determined until the jurisdiction of the trial court is invoked and its equity powers exercised. Hence, paragraph 6(B) prohibits a former employee from engaging in any employment agency business for an indefinite and indeterminable period. If an injunction were issued against Schneider today enjoining her from engaging in the employment agency business for six months from the date of that injunction, the injunction would not expire until more than a year from the date she terminated her employment. Such a result is inconsistent with the clear language of paragraph 6(A) and would not be anticipated by the ordinary employee entering into such an agreement. Such a result is neither definite nor reasonable. This court holds that a covenant not to compete for a period of time which will not commence until an injunction is issued is unenforceable and void as contrary to public policy.

Paragraph 6(B) is disregarded as unenforceable and void. This court will determine whether the trial court abused its discretion in not enforcing the covenant in paragraph 6(A). Any alleged breach of paragraph 6(A) is no longer material, because the six-month period expired during the pendency of this appeal. However, we would refuse to enforce this covenant as written even if the time period contained therein had not expired. Cardinal urges that under her contract, Schneider has agreed not to engage in any employment agency business, irrespective of whether she would thereby actually compete with her former employer. As enunciated in Weath-erford, supra:

[T]he test usually stated for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. According to the Restatement, a restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship upon the person restricted. 340 S.W.2d at 951. [Emphasis added.]

In Weatherford, the supreme court refused to enforce a covenant as written because the restraint was “not necessary for the protection of petitioner’s business or good will . . . Id. at 952.

It was undisputed that some 300 employment agencies conduct business in Harris County. As a consequence of Houston’s diverse job market, these agencies do not necessarily compete with one another. Most of Cardinal’s clients were acquired through newspaper advertisements and placed in relatively low-income trainee positions. To the contrary, LaSorsa’s agency infrequently used newspaper advertising and placed clients primarily in high-salaried professional or managerial positions. The most that was established by Cardinal was a slight overlap between the two agencies. Cardinal failed to establish that it was harmed by Schneider’s engaging in a noncompeting employment agency business. As a corollary, Cardinal failed to demonstrate how it would be protected or benefit-ted if Schneider were enjoined from engaging in a noncompeting business.

The covenant not to engage in any type of employment agency business will not be enforced if it is “any greater restraint than is reasonably necessary to protect the business and good will of the employer.” Id. at 951. The broad covenant set forth in paragraph 6(A) is excessive in protecting the business and good will of Cardinal. The covenant constitutes an unreasonable restraint of trade, unnecessary infringement upon personal freedom, and should not be enforced. Weatherford, supra.

Cardinal alleges that Schneider is violating a second covenant in her employment contract, to-wit:

6. C. Without intending to limit the generality of any of the foregoing, EMPLOYEE does further agree that in the event of termination of employment hereunder, EMPLOYEE shall not, for a period of one year from and after termination of employment hereunder, contact any clients of EMPLOYER, which persons, firms or corporations were clients of EMPLOYER prior to or'during EMPLOYEE’S term of employment hereunder.

Testimony adduced at trial established that Schneider contacted John Schmitz concerning a position available in Dallas which he did not pursue. Schmitz, an electrical engineer, was a former client of Cardinal’s, and was currently employed by Cardinal as an employment consultant. He worked with Schneider when she was employed with Cardinal. Cardinal asserts that Schmitz is still a “client”, as defined in the employment contract, and that Schneider’s contact with Schmitz constituted a breach of the covenant in paragraph 6(C).

A temporary injunction should not be granted unless the applicant shows a probable right to permanent relief and also shows that a probable injury will result unless the injunction is entered during the pendency of the suit. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex. Sup.1964); Manning v. Wieser, 474 S.W.2d 448, 449 (Tex.Sup.1971); Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex.Sup.1975); see 6 Texas Practice, Remedies, §§ 113, 114 (2 ed. 1973). The decision of the trial court in either granting or refusing the temporary injunction will not be reversed upon appeal unless the trial court has abused its discretion or failed to apply the law correctly to undisputed facts. Manning, supra, at 449. Upon consideration of the entire record in this case, this court fails to find an abuse of discretion by the trial court.

The order denying a temporary injunction is affirmed.

      . But cf. Arrow Chemical Corporation v. Pugh, 490 S.W.2d 628 (Tex.Civ.App.—Dallas 1972, no writ). In a case decided without trial testimony or appellate brief on behalf of the employee, the court of civil appeals instructed the trial court to enforce a covenant similar to the one presented here. To the extent that the decision is contrary to the holding of this court, we respectfully disagree.

      . Paragraph 4 of the contract provides:
      It is understood and agreed by EMPLOYEE that all applicants seeking employment, or persons for whom EMPLOYER has found positions of employment prior to or during EMPLOYEE’S term of employment, and all persons, firms, companies, governmental agencies, and agents thereof, seeking employees, or with whom employees have been placed by EMPLOYER, prior to or during EMPLOYEE’S term of employment, are clients of EMPLOYER, and will be hereinafter referred to as “clients” of EMPLOYER.


author: McMILLIAN, Presiding Judge.

text:
    Milton GUILBEAUX, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38013.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 23, 1976.
    Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., Brendan Ryan, Circuit Atty., Richard Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   McMILLIAN, Presiding Judge.

Movant, Milton Guilbeaux, appeals from an order of the Circuit Court of the City of St. Louis, Missouri, overruling his Rule 27.-26 motion to vacate and set aside two judgments of conviction and concurrent sentences entered thereon.

On January 5, 1970, movant-appellant pleaded guilty to two counts of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon and one count of Second Degree Murder. He was sentenced to twenty-five (25) years on each count, the sentences to run concurrently. In January of 1975 movant filed a Rule 27.26 motion to set aside the judgment and sentence. After an evidentiary hearing, the trial court issued findings of fact and conclusions of law and overruled the motion. We affirm.

On appeal, movant raises one issue: He contends that the court erred by overruling movant’s motion on the ground that movant had failed to sustain his burden of proof in showing that he was denied effective assistance of counsel. The specific actions which movant claims constituted ineffective assistance are that movant’s attorney (1) failed to investigate and interview any of the state’s witnesses; (2) failed to file any pretrial motions to suppress identification and admissions; (3) failed to interview any of movant’s alibi witnesses; (4) only spoke with movant twice prior to the entering of the pleas; and (5) coerced the pleas of guilty by inducing movant to believe that the court had made certain statements as to the punishment the movant would receive if he did not enter pleas of guilty.

A motion filed under Rule 27.26 is an independent civil action. In such a proceeding the burden of establishing grounds for relief must be established by a preponderance of the evidence. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). Upon review, we are limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). “Once a plea of guilty is entered, the adequacy of representation by counsel is reviewable only to the extent that it bears upon the voluntariness and understanding with which the plea was made. . . . ” Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975).

Movant’s first contention concerns the failure of his attorney to investigate or interview any of the state’s witnesses. To be entitled to relief, movant must show by a preponderance of the evidence that the performance of his counsel did not reach the level of normal or reasonable competence and that this inadequate representation prejudiced movant by causing him to enter each of his pleas of guilty involuntarily. Hall v. State, supra. Unlike Hall, supra, movant’s attorney was more than a mere agent for plea bargaining. He filed a psychiatric motion, discussed the case with the circuit attorney’s office, read a coroner’s court transcript, and knew in substance what the state’s witnesses would say. Movant has failed to show that he was prejudiced or that any substantial helpful evidence would have been discovered upon additional investigation of the state’s ease against him. Curry v. State, 504 S.W.2d 97, 98-9 (Mo.1974).

As to movant’s second contention, his attorney’s testimony at the motion hearing to which the trial court gave great weight, was that he was satisfied that the confessions and identifications of movant would have been admissible so that a motion to suppress would have been fruitless. Mov-ant has also failed to show how this alleged deficiency affected the voluntariness and knowledge of his guilty pleas. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971).

Movant’s third contention is that his attorney failed to interview alibi witnesses. His attorney’s testimony, bolstered by his records of the case, was that no potential alibi witnesses had been brought to his attention by the movant. Movant’s own testimony was that while he told his lawyer he .had some witnesses who could testify on his behalf, he did not give his attorney any names. No showing has been made by movant to show how this alleged failure to investigate resulted in any prejudice to his defense.

Movant next asserts that counsel was ineffective because his lawyer only spoke to him twice before the day of the guilty pleas. This contention is directly refuted by the transcript of the guilty plea proceedings. At the time of the pleas movant testified that he was satisfied with the representation given him, that counsel had answered all his questions, discussed the charges with him and had advised him of the consequences of a guilty plea. We cannot, therefore, say that the finding of the trial court was clearly erroneous. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968).

Movant’s final contention is that he was coerced by his counsel’s representations that the trial judge had said that he could and would be sentenced to life or more if he went to trial. Movant’s counsel testified and denied that the judge had made such a statement. He testified that he only explained to movant what the judge might do if he were convicted by a jury and that he did not coerce movant into pleading guilty in any way. As noted earlier, the trial court did not credit any of movant’s testimony at the motion hearing. Movant’s claim of coercion is also undercut by his admissions during the plea proceedings that his pleas were voluntary. Movant’s mother testified in his behalf at the evidentiary hearing, stating that counsel had approached her prior to the pleas and asked her to talk to movant about pleading guilty. She further testified that she had felt it was best for her son to enter pleas of guilty and that counsel did not force her at all to talk to her son. Counsel testified that he remembered speaking with the mother but did not recall the content of the conversation. Counsel also testified that at no time did he employ any coercion in order to induce movant to enter' a plea of guilty. The trial court found that counsel left the actual decision of whether to go to trial or plead guilty, up to the movant. Movant had made no showing that this finding was clearly erroneous. Rule 27.26(j).

For the reasons stated above, the trial court’s finding that the assistance of counsel was not ineffective and that movant’s pleas of guilty were voluntarily and knowingly made were not clearly erroneous. Crosswhite v. State, 426 S.W.2d 67, 70-2 (Mo.1968) and Rule 27.26(j).

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Betty Ann DEWEY, Respondent, v. Richard D. DEWEY, Appellant.
    No. 28346.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Rehearing Denied Dec. 27, 1976.

      Richard E. Duggan, Duggan & Keleher, Kansas City, for appellant.
    Robert B. Zeldin, DeWitt & Zeldin, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of motion to set aside decree of divorce.

On September 9, 1974, judgment was entered in the Jackson County Circuit Court, dissolving the marriage between Betty Ann Dewey and Richard D. Dewey. The judgment provided for payment by husband of $50 per month alimony and divided the marital property.

On May 14, 1975, Richard D. Dewey filed a motion in the Jackson County Circuit Court to set aside the September 9, 1974 judgment. The motion alleged that the movant had recently discovered that at the time of his marriage to Betty Ann Dewey on September 10,' 1966, his previous marriage to Elinor Dewey had not been dissolved. As evidence of that fact he attached a certified copy of a judgment of the Cole County Circuit Court, dated October 22, 1966, in the case of Elinor Dewey v. Richard D. Dewey, by which plaintiff was divorced from the bonds of matrimony with the defendant. The motion alleged that since the movant’ was married to Elinor Dewey at the time of his marriage to Betty Ann, the alleged marriage to Betty Ann was a nullity and the court had no jurisdiction to grant the September 9,1974 dissolution judgment.

At a hearing on the motion respondent, then Betty Ann Tidd, testified that she married appellant September 10, 1966. She testified that before the marriage appellant told her many times he had never been married before. She produced an undated letter which she said appellant had addressed to her in which he said “I’ve always stood clear of getting too close to the alter (sic).” She testified that, based on her conversations with appellant and on letters received from him, she believed he had never been married. ,

Respondent’s dáughter-in-law testified that before the marriage of appellant and respondent, appellant had told her and respondent’s son that he had always been a bachelor and had never been married before.

Appellant offered nothing other than his motion and the attached certified copy of the judgment of the Cole County Circuit Court.

The court overruled the motion and mov-ant has appealed.

On this appeal, the contention is that by § 451.030, RSMo 1969, appellant’s marriage to respondent was void because he had a former wife living at that time, and therefore the court had no jurisdiction to enter a decree of dissolution.

Appellant’s motion was filed far beyond 30 days following the entry of judgment in the trial court. Therefore the court had no authority to act on the motion on the basis of Rule 75.01, giving the trial court control over its judgment for a period of 30 days.

Appellant may not take advantage of Rule 74.32, permitting motions to set aside a judgment for irregularity within a period of three years after the judgment becomes final. That rule authorizes relief only in cases where the irregularity which nullifies the judgment appears on the face of the record. It does not permit the introduction of extraneous evidence to invalidate an otherwise valid judgment. In this ease the trial court had jurisdiction to entertain the action in which its judgment was entered and it had jurisdiction over the parties. It disposed of the action within the limits of its jurisdiction and Rule 74.32 does not encompass the attack here attempted on the judgment. Van Emelen v. Van Emelen, 166 S.W.2d 802 (Mo.App.1942).

Even if the attack here be viewed as a motion in the nature of a writ of error coram nobis, appellant is not entitled to prevail because he has made no showing and obviously none could have been made that he would have been unable, in the exercise of due diligence, to have been aware at the time of trial of the objection which he now raises. Pike v. Pike, 239 Mo.App. 655, 193 S.W.2d 637, 640[5-7] (1946).

“It is to the public interest that all doubt of the validity of a divorce decree be settled as promptly as possible.” Pike v. Pike, supra. § 452.110, RSMo 1969. Appellant has shown no basis for granting the relief sought and the trial court did not err in overruling his motion.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Robert WILSON, Appellant.
    No. KCD 28262.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Rehearing Denied Dec. 27, 1976.

      Forrest P. Carson, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was convicted of second degree burglary and stealing and was sentenced under the second offender act to imprisonment for five years on each charge, the sentences to run consecutively. He asserts basically three arguments on appeal: (1) that the trial court erred in allowing amendment of the information on the first day of trial while denying defendant’s motion for continuance; (2) that the court erred in assessing the punishment itself rather than submitting the issue to the jury because there was no proof of imprisonment as required by the second offender act; and (3) the evidence was not sufficient to support the conviction.

The record shows that on the evening of Saturday, May 25, 1974, Max Trimble picked up defendant and the two drove around in Trimble’s automobile. During the evening there had been some drinking, and they had picked up defendant’s sister and three of her friends but had left them off by 11:00 o’clock.

According to Trimble, at about 11:30 or 12:00 o’clock, defendant told him to drive to Westminister College and park in front of Sweazy Hall so that defendant could relieve himself. Trimble parked on the street in front of the building and defendant got out, walked up to the building, and shook the front door but could not get into the building. Defendant returned to the car and instructed Trimble to drive further down the street and into the parking lot behind Sweazy Hall, which he did. Thereupon, Trimble turned off the ignition but left the lights on. Defendant grabbed the car keys and headed toward the building. Trimble saw the defendant walk down the stairs in a stairwell on the side of the building. Five or ten minutes later, defendant emerged from the stairwell with a box 2' square, a towel and some books, put the items in the back seat of the car, gave Trimble the keys and told him to drive.

They left the parking lot and proceeded along a route designated by the defendant. According to Trimble, the two saw the lights of an approaching car and the defendant, thinking it was the police, “told me not to stop or he’d kill me.” Trimble drove straight through the stop sign as he was instructed and as their car was half-way across the intersection, the car whose lights they had seen collided with them. The impact threw Trimble’s car into the ditch and partway up the bank. Defendant jumped out of the car and told Trimble to “get rid of the stuff.” Trimble threw the box and then the other items ten or fifteen feet up the high bank and into an area of tall grass, brush and weeds. Defendant drove the other driver to the hospital in her car, and Trimble walked to a house down the road, where he asked the owner to summon the police. When the police arrived at the scene of the accident, Trimble told them the whole story immediately, and showed them the items in the weeds on the bank. The box, containing a stereo, along with a towel and a book, were later retrieved by the police, and were identified by Dewey Markham, a student at Westminis-ter College, as belonging to him. He had left them in a storage room in the basement of Sweazy Hall.

Pete Busalacki, the dormitory counselor for Sweazy Hall, testified that he had locked the door to the storage room on Friday, the evening before the theft, and at that time he had seen stereo equipment in the room. He also testified that the storage room could be unlocked and opened with such common items as a key, a clothes hanger, or a plastic credit card. Although he did not know whether the outside door to the dormitory was locked, he was sure that the storage room was locked.

The only further evidence on behalf of the prosecution was four letters addressed to various students at Westminister College, one of which was postmarked Thursday, May 23, just two days before the burglary. Busalacki testified that all of the student mail at that time was delivered to Sweazy Hall. When defendant was arrested and booked, the four letters were found in his right hip pocket. .

I.

The original information charged defendant with breaking into a dormitory, Sweazy Hall. On the morning of the first day of trial, the State requested and was granted leave to amend the information. The amended information charged defendant with breaking info a storage room in the dormitory, Sweazy Hall, which was identified as a dwelling house. After allowing the amendment, the court refused to grant defendant a continuance and it is the amendment coupled with this refusal which defendant claims as his first assignment of error. He contends the amended information substituted a-different charge in that it alleged the offense occurred in a “different place.”

Under Rule 24.02, the amendment or substitution ofian information is permissible at any time before the verdict is returned if “no . . . different offense is charged and if substantial rights of the defendant are not prejudiced.” The ultimate question is one of prejudice. O’Neil v. State, 502 S.W.2d 342 (Mo.1973). And the test of prejudice in this regard is whether a defense under the charge as originally made would be equally available after the amendment and whetlier defendant’s evidence would be equally applicable after, as well as before, the amendment. State v. Taylor, 375 S.W.2d 58 (Mo.1964). Under a related rule pertaining to review of refusal of a trial court to grant a defense motion for continuance, the appellate court will not interfere unless it clearly appears that the ruling was an abupe of the sound discretion of the trial court and that the accused was prejudiced thereby. State v. Kelly, 365 S.W.2d 602, 606 (Mo.1963); State v. Le Beau, 306 S.W.2d 482 (Mo.1957).

As noted by the trial judge in ruling on the motions, both the original and also the amended informations charged defendant with burglary in the second degree. Further, the factual situation upon which the charges were based is identical. The original information accused defendant of forcibly entering Sweazy Hall on May 26, 1974, in order to steal a stereo, and a towel deposited there; and the amended information modifies that charge only to the very minor extent of alleging that he forcibly entered a storage room inside that dormitory on the same stated date in order to steal the same described items. Under both versions of the information, the essence of the charge remained the same. See State v. Drake, 512 S.W.2d 166, 173 (Mo.App.1974).

Mention should also be made that evidence had been introduced by the State at the preliminary hearing that the stolen items had been deposited in the locked storage room. Defendant objects that this evidence should not be considered as eliminating surprise, because trial counsel (who is also counsel on this appeal) was not counsel at the preliminary hearing. Nevertheless, defendant himself heard the testimony at the preliminary hearing. Furthermore, counsel at the preliminary hearing was apparently cooperative with and informative to present counsel, as shown by the fact that present counsel called the earlier counsel as a trial witness and used his testimony of what Trimble said at the preliminary hearing, in an effort to impeach that prosecution witness.

The defendant has failed to specify any meaningful prejudice he suffered from the allowance of the amendment and refusal of the continuance, and this court sees none. The trial court did not abuse its discretion in these respects.

II.

Defendant’s second point alleges that the court erred in applying the second offender act, because the State failed to prove that defendant was actually imprisoned following his earlier conviction. In order to try a defendant as a second offender, the statute requires that the State plead and prove, and the court find that (1) the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary, and (2) that he was subsequently imprisoned, fined, paroled or placed on probation. State v. Garrett, 416 S.W.2d 116, 120 (Mo.1967); State v. Wiley, 412 S.W.2d 485, 487 (Mo.1967). These necessary facts were pleaded in this case and evidence was adduced by the State in the form of certified court orders of defendant’s conviction and sentence on the same day for the commission of two felonies, certificates of commitment to the Department of Corrections, and testimony of a Deputy Sheriff that he had transported defendant to the Department of Corrections in Jefferson City under those commitments.

The defendant asserts that because the records of the Department of Corrections were not introduced into evidence, the element of imprisonment was not proven. He cites in support State v. Wiley, 412 S.W.2d 485 (Mo.1967). That case states that such records may be used as proof of prior convictions under the act, but does not hold that such records are the only proof thereof.

In response to defendant’s present objection, the trial court found that “the evidence is that he was delivered to the Department of Corrections. I think that would provide a basis for reasonable inference that the commitment had been complied with and he was in prison.” Inasmuch as evidence of both conviction and imprisonment was brought forward and the trial court explicitly made findings on both points, the trial court did not err in sentencing defendant under the provisions of the second offender act.

III.

Defendant’s Points numbered III through V, that the court erred in giving Instruction No. 6 (on burglary in the second degree and stealing), that the court erred in giving Instruction No. 7 (on burglary in the second degree), and that the court erred in refusing defendant’s motion for acquittal at the close of all of the evidence, are all based upon the alleged insufficiency of the evidence and therefore all three arguments will be consolidated for discussion here. Specifically, defendant contends that there was no evidence: (a) that defendant was actually inside the dormitory; (b) that defendant entered the building with the requisite intent to steal; (c) that the Sony stereo music system in evidence was the same one identified by serial number in the information; or (d) that the door to the storage room was closed and locked on Saturday night.

In considering these arguments, the first factor to be considered is the appellate standard for review of sufficiency of the evidence. As stated in State v. Scott, 525 S.W.2d 410, 412 (Mo.App.1975):

“It is well settled that this court, in considering the sufficiency of the evidence to support a criminal conviction, will view all the evidence, direct and circumstantial, in the light most favorable to the state, consider said evidence as true, together with all reasonable inferences which may be drawn therefrom, and will disregard all contrary evidence and inferences. State v. Summers, 506 S.W.2d 67, 69[1] (Mo.App.1974); State v. Garrett, 494 S.W.2d 336, 337[1] (Mo.1973); State v. Harris, 485 S.W.2d 612, 613[2] (Mo.1972); State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969). Thus, review is limited to a determination of whether substantial evidence supports the verdict. State v. Simpson, 502 S.W.2d 451, 451[1] (Mo.App.1973). ...”

See also State v. Wrose, 463 S.W.2d 792, 795 (Mo.1971); State v. Watson, 350 S.W.2d 763, 766 (Mo.1961). Viewing the record in such a manner, the evidence appears to be sufficient with regard to each of the four specifically alleged deficiencies.

With respect to the contention that there was no evidence that defendant was inside the dormitory, defendant cites State v. Watson, 425 S.W.2d 123 (Mo.1968), for the proposition that evidence that the defendant was seen outside the building, when taken alone, is insufficient proof of burglary. In the case at bar, however, there is far more evidence than the defendant’s mere presence near the building. There was evidence that he had tried, unsuccessfully, to enter the building by the front door, and immediately thereafter descended stairs leading to another entrance of the building, and was not seen again until he climbed the stairs five to ten minutes later carrying goods which had been locked in the storeroom inside the building. Furthermore, four letters were found on the person of the defendant during the booking process a short time later, and it was shown that the four letters, addressed to four different individuals, had been recently delivered to the building in question. From this evidence the inference can reasonably be drawn that defendant had entered the building.

With respect to the complaint that the record is devoid of any evidence of an intent to enter with intent to steal, the requisite intention can be inferred from the surrounding circumstances. State v. Smith, 521 S.W.2d 38, 40 (Mo.App.1975). Defendant directed Trimble to drive to the building and tried once to get into the building unsuccessfully. After finally gaining access, defendant managed to locate the storage room, open the lock, pick up stored items including a stereo, and return to the parking lot, all in the space of five or ten minutes. Such swift and systematic action amply supports the inference of an intent to steal.

Also applicable is the rule of law that unexplained possession of recently stolen goods is evidence of guilt of burglary and stealing and, if uncontradicted, is sufficient to sustain a conviction. State v. Durham, 367 S.W.2d 619, 621 (Mo.1963); State v. Watson, 350 S.W.2d 763, 766 (Mo.1961). Defendant objects’ to use of that principle here on the ground that his possession was joint with Trimble. When the possession proven is joint with another, there must be something else in evidence to connect the defendant with the offense. State v. Watson, supra at 766; State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973). In this record, there is the additional evidence of the testimony of Trimble that he saw defendant emerge from the building — alone—carrying the stolen goods. The possession at that point was exclusively that of defendant, and that exclusivity did not become less available as the predication for an inference of theft by him merely because he later thrust possession onto Trimble. See State v. Durham, 367 S.W.2d 619 (Mo.1963). Defendant’s possession here of the stolen property, along with the other evidence, is quite sufficient to support a finding on all elements of burglary and stealing, including that of breaking with intent to steal.

With respect to the alleged failure to identify the stereo system in evidence at trial by the serial number set out in the charge, the defendant argues that this made it possible for him to be charged with stealing a certain item and convicted of stealing something else. Defendant’s argument misapprehends the import of the cases on which he relies. In State v. McBride, 366 S.W.2d 374, 377-78 (Mo.1963), the information charged that money and certain equipment was stolen; the evidence proved only that the defendant had taken clothes; the court held reversibly erroneous an instruction which permitted conviction upon a finding of intent to steal personal property “of any kind” irrespective of whether the jury believed he stole any of the four items alleged in the information. State v. McCollum, 377 S.W.2d 379, 386-87 (Mo.1964), the only other case cited by defendant on this point, presented the identical situation as McBride.

In this case, the information charged that defendant had stolen one Sony stereo, and one towel which was the personal property of Dewey Markham. The evidence showed that Dewey Markham’s stereo and towel were stolen by the defendant. Markham identified his stereo and towel at trial. The police identified the stereo and towel by their initials and date marking. The stereo was present in court for physical inspection. Even with the omission of any specific reference to the serial number of the stereo at trial, identification of the goods stolen was sufficient and was consistent.

With respect to defendant’s final contention that there was no evidence of a burglary by the defendant because there was no proof that the storage room was closed and locked on Saturday, the record fails to sustain him. Bearing in mind the fact that all reasonable inferences are to be drawn in favor of the verdict, the fact that the door was locked on Friday and that only two people had keys (the counselor who testified and the Dean of Students), the inference is certainly reasonable that the door was locked the following evening, when defendant stole the items in question.

Under the test to be applied, the evidence adduced at trial is sufficient. The court did not err in refusing defendant’s motion for acquittal and in submitting the issue of burglary and stealing to the jury.

Affirmed.

All concur.


author: TURNAGE, Judge. SHANGLER, Judge WASSERSTROM, Judge

text:
    John A. ROBINSON et al., Respondents, v. RIVERSIDE CONCRETE, INC., et al., Appellants.
    No. KCD 27013.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.

      Howard W. Bevins, Michael J. Drape, Knowlton & Drape, Kansas City, for appellants.
    Stoup & Bohm, Arthur H. Stoup, Thomas E. Thompson, Kansas City, for respondents.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFPORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

This appeal presents the question of the sufficiency of the jury’s verdict to support a judgment for actual and punitive damages. John Robinson and his wife brought suit against Riverside Concrete, Inc., Ernest Mountjoy, Mary Mountjoy, Frank Sambol, Lake Ozark Concrete, Inc., and Ted Mountjoy for accounting, fraud, conversion and replevin. The jury returned a verdict for “damages” in the amount of $43,300, interest of $17,350, and attorney fees of $21,000, being the total sum of $81,650, against Riverside, Ernest, Mary and Sam-bol. The jury also returned a verdict against the same defendants for punitive damages in the sum of $75,000. Judgment was entered according to the verdict, and Ernest Mountjoy, Mary Mountjoy and Riverside Concrete, Inc., have appealed therefrom. The dispositive issue raised on this appeal is the insufficiency of the verdict to support the judgment. Reversed and remanded.

Ernest and Mary Mountjoy were the sole stockholders of Riverside Concrete, Inc. Feeling the need for capital with which to operate such business, the Mountjoys arranged to borrow $50,000 from the Robin-sons. A promissory note in that amount was executed by the Mountjoys in their corporate officer capacities. The Mountjoys simultaneously executed a loan agreement in their corporate capacities and in their individual capacities by which the undertaking of Riverside was guaranteed and by which they agreed to indemnify the Robinsons against any loss. The agreement provided a security agreement was to be executed to convey a security interest in certain equipment and vehicles used in the concrete business to Robinson. Such agreement was in fact executed.

It was further agreed Riverside would not declare or pay any dividend, increase its capital stock or retire or exchange any of its capital stock without the written consent of Robinson. Ernest was also to receive $250. per week for services to Riverside and such salary was not to be increased nor was he to be paid any other remuneration without the written consent of Robinson.

In addition to interest on the note, Robinson was to receive 43% of the annual net profits of Riverside, less agreed upon deductions, and he and his agents were to have the right to examine Riverside’s books and income tax returns at any time. Riverside was to pay all of Robinson’s expenses including legal expenses incurred in connection with the enforcement of the loan agreement.

Robinson and his wife filed suit following default on the note and following the failure of Riverside to pay the 43% of net income. In Count I of such suit the execution of the $50,00Q note and loan agreement was alleged, together with the provisions of such agreement, together with the allegation no payment had been made and no accounting had been provided. Count I prayed for an accounting and that Riverside be required to pay Robinson such amount as determined to be 43% of net income. Such count further pleaded fraudulent and malicious conduct on the part of the Mountjoys to deplete the assets and profits of Riverside and alleged they took the items covered by the security agreement and devoted them to their own use. It was alleged such actions were for the sole purpose of defrauding Robinson and by reason therefor, Robinson was entitled to punitive damages in the sum of $500,000.

Count II was based upon the security agreement executed by Riverside and alleged the property covered thereby was in danger of being lost to Robinson unless taken from the possession of Riverside. The prayer was for recovery of the property and $5,000 damages for its return.

Count III was against Frank Sambol, brother-in-law of Ernest Mountjoy, and alleged Sambol was acting in concert with the Mountjoys to convert the property covered by the security agreement to such use as to defeat the rights of Robinson in the same. The prayer was for $50,000 plus interest and costs.

Count IV was against Lake Ozark Concrete, Inc., and Ted Mountjoy, the owner of Lake Ozark. Ted is the son of Ernest and Mary. This Count alleged certain of the property covered by the security agreement given by Riverside'was through the conspiracy and acts of the three Mountjoys placed in the possession of Lake Ozark which converted the same to its own use. Damages in the amount of $50,000 were prayed.

Count V incorporated by reference the allegations of the first four counts and further alleged that all the defendants did unlawfully and fraudulently conspire together to cheat and defraud the Robinsons and pursuant to such scheme, the property covered by the security agreement would be turned over to Sambol, Lake Ozark and Ted and such property would be used, converted and sold and the proceeds derived from the sale would be divided among the defendants. This count concluded with a prayer for $50,000 actual damages and $500,000 for punitive and exemplary damages.

Following a lengthy trial, which covers some 840 pages of transcript, the court gave the jury its instructions. The following verdict directing instructions were given:

INSTRUCTION NO. 3 authorized a verdict against Riverside on the principal amount of the note.
INSTRUCTION NO. 6 authorized a verdict against Ernest and Mary on the guarantee agreement and the loan agreement.
INSTRUCTION NO. 8 authorized a verdict against Riverside for transferring and conveying some or all of the secured concrete equipment to Lake Ozark.
INSTRUCTION NO. 10 authorized a verdict against Ernest for conversion of secured property or for transfer of the secured property to delay or hinder his creditors.
INSTRUCTION NO. 12 authorized a verdict against Mary for aiding and abetting Ernest in the transfer of secured property or for her intentional participation in transfer of the secured property to hinder or delay creditors.
INSTRUCTION NO. 14 authorized a verdict against Sambol for intentionally aiding and abetting the transfer of secured property for the purpose of hindering, delaying and defrauding Robinson.
INSTRUCTION NO. 16 authorized a verdict against Lake Ozark for knowingly participating in the conversion of secured property.
INSTRUCTION NO. 19 authorized a verdict against Ted for knowingly participating in the conversion of secured property.
INSTRUCTION NO. 21 was MAI 4.01, the measure of damages.
INSTRUCTION NO. 22 was MAI 10.03 authorizing the award of exemplary damages.

Instruction No. 25 was the form of verdict instruction and is set out in full hereafter:

INSTRUCTION NO. 25
You are instructed that nine or more jurors may return a verdict for either party in this case. If all of you agree upon a verdict, your foreman alone will sign it, but if your verdict is returned by nine, or more, and less than twelve jurors, your verdict must be signed by all of the jurors who agree to it.
Forms of Verdict
If all of you agree upon a verdict in favor of the plaintiffs for the principal amount on the note and guarantee agreement, and against defendants Ernest W. Mountjoy, Mary Mountjoy and Riverside Concrete, Inc., it may be in the following form:
“We, the.jury, find the issues in favor of the plaintiffs and against defendants (here insert the names of defendants against whom you find) and assess their damages at $_(stating the amount.)
-Foreman.”
If all of you agree upon a verdict in favor of the plaintiffs for both principal amount and interest on the note and guarantee agreement, and against defendants Ernest Mountjoy, Mary Mountjoy and Riverside Concrete, Inc., it may be in the following form:
“We, the jury, find the issues in favor of the plaintiffs and against defendants (here insert the names of defendants against who you find) and assess their damages at $_, and assess interest at $_, being the total sum of $_ (stating the amount).
_Foreman.”
If all of you agree upon a verdict in favor of the plaintiffs for principal amount, interest and attorney’s fees on the note and guarantee agreement, and against defendants Ernest Mountjoy, Mary Mountjoy and Riverside Concrete, Inc., it may be in the following form:
“We, the jury, find the issues in favor of the plaintiffs and against defendants (here insert the names of defendants against whom you find) and assess their damages at $_, and assess interest at $_, and assess attorney’s fees at $_, being the total sum of $_ (stating the amount).
_Foreman.”
If you find the issues in favor of plaintiffs under Instructions numbered 8, 10, 12, 14, 16, 19, and find that plaintiffs are entitled to actual damages only, your verdict may be in the following form:
“We, the jury, find the issues in favor of plaintiffs and against defendants (here insert the names of defendants against whom you find) and we assess plaintiffs’ damage at $_ (stating the amount).
_Foreman.”
If you find for plaintiffs and against one or more defendants and if you further find that plaintiffs are also entitled to punitive damages, then your award of punitive damages shall be in the following form:
“We, the jury, find the issues in favor of plaintiffs and we find that plaintiffs are entitled to punitive damages against the following defendants (here insert the names of defendants against whom you find), in the following amount $_ (stating the amount).
_Foreman.”
YOU MAY NOT AWARD PUNITIVE DAMAGES AGAINST ANY DEFENDANT UNLESS YOU HAVE ALSO AWARDED ACTUAL DAMAGES AGAINST THAT SAME DEFENDANT.
If you find the issues against the plaintiffs and in favor of all defendants, then your verdict shall be in the following form:
“We, the jury, find the issues in favor of all defendants.
_Foreman.”
If less than twelve jurors return a verdict in this case, you should begin your verdict with the words:
“We, the undersigned jurors, find,” etc., instead of “We, the jury, find,” etc.
THESE FORMS ARE GIVEN FOR GUIDANCE ONLY AND YOUR VERDICT SHOULD BE WRITTEN ON A SEPARATE PAPER, AND NOT ON ONE OF THESE INSTRUCTIONS.

Converse instructions were given on behalf of the various defendants.

The jury returned the following verdicts:

“We, the jury, find the issues in favor of the plaintiffs and against the defendants Ernest Mountjoy, Mary Mountjoy, Riverside Concrete, Inc., and Frank Sam-bol, and assess their damages at $43,300 and assess interest at $17,350, and assess attorney’s fees at $21,000, being the total sum of $81,650.
/s/ Wavne L. Lucas. Foreman.”
“We, the jury,; find the issues in favor of plaintiffs and we find that plaintiffs are entitled to punitive damages against the following defendants: Ernest Mountjoy, Mary Mountjoy, Riverside Concrete, Inc., and Frank Sambol, in the following amount: $75,000.
/s/ Wavne L. Lucas. Foreman.”

No question is raised on this appeal concerning the sufficiency of the evidence to support any of the instructions.

It should be noted at the outset the jury was instructed they could return a verdict in favor of Robinson for the principal amount of the note, together with interest and attorney fees, and for damages for the conversion of property covered by the security agreement. ' No motion to require Robinson to elect which of these remedies he would pursue was filed. Since the parties have not raised any question of Robinson pursuing a remedy on both the note and for conversion of property covered by a security agreement to secure such note, this court does not pass on the propriety of such action. Neither have the parties raised any question concerning the applicability of the Uniform Commercial Code, 400.1 et seq., RSMo 1969, and that question likewise is not passed on herein.

The sole question raised by Ernest, Mary and Riverside, the only parties appealing, concerns the verdict returned by the jury. These parties contend the verdict does not definitely show the jury found against Ernest, Mary, Riverside and Sambol for damages for conversion or for the transfer of secured property. They contend the verdict actually is based on the principal amount due on the note, together with interest and attorney fees. The contention proceeds that since the verdict was for the principal of the note, this is a finding of a breach of contract. The argument concludes with the well recognized doctrine that a finding of a breach of contract will not support a finding for punitive damages. These parties are correct in their attack on the verdict but their reasoning does not go to the basic defect.

Robinson counters such argument by stating the jury actually found under the conversion or transfer of secured property instructions. He further contends that by spelling out interest and attorney fees in addition to the amount of “damages” the jury simply gave a breakdown of how they arrived at the total amount of damages on this fraud theory. Robinson’s claim further illuminates the fatal flaw. This court cannot determine the jury’s basis or theory of finding for the respondent.

The general rule is announced in Smith v. Piper, 423 S.W.2d 22, 27[17,18] (Mo.App.1967) that punitive damages do not lie for breach of contract. Thus, if the verdict is construed to be a finding on the contract theory that Robinson is entitled to the principal amount due on the note, together with interest and attorney fees, such verdict could not support a verdict for punitive damages. Thus, the first question to be resolved is the determination of whether the jury found on the note or the conversion tort theory. The crux of this case is that this question cannot be answered because of the unclear verdict which does not manifest the jury’s intent.

Although Robinson did not seek a judgment in his petition for the principal amount due on his note, he did introduce evidence as to the principal amount due and the amount of interest and attorney fees. Of course, such evidence supported the giving of the instruction authorizing a verdict against Riverside, Ernest and Mary on the principal amount of the note and on the loan and guarantee agreement.

The rules by which a court considers a verdict to see if it can determine the intent of the jury are fully set out in McIlvain v. Kavorinos, 212 S.W.2d 85 (Mo.App.1948). Fully consistent with the rules set out in such case is the statement in Thorne v. Thorne, 350 S.W.2d 754, 757[1-3] (Mo.1961): “It has been stated that the courts will construe a verdict liberally in an effort to ascertain the jury’s intent. 53 Am.Jur., Trial, § 1052, p. 716. And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed.” The court further stated at Page 758, “[cjertainly, the verdict of a jury must be reasonably clear and definite, and it must contain at least the substance of the legal requirements.”

In Ralston Purina Company v. Kennedy, 347 S.W.2d 462,466 (Mo.App.1961) the court stated: “On the question of certainty and definiteness of a verdict we find this statement in 89 C.J.S. Trial, § 496, pp. 157, 158: ‘However, the verdict of the jury, to serve as a basis for a judgment, should be clear, intelligible, consistent, and certain; and it should import a definite meaning free from ambiguity and should show just what the jury intended’.”

It is further stated in Boone v. Richardson, 388 S.W.2d 68, 76[14-16] (Mo.App.1965): “The parties were entitled to the unconditional judgment of the jury, rather than a court’s interpretation of its finding

To consider the verdict returned, it is first apparent the verdict does not follow the directions for use of the forms of verdict given. The verdict conforms in all respects with the third verdict form listed in Instruction No. 25 except for the inclusion of a finding against Sambol. This instruction advised the jury that forn\> was to be used only if they found against Ernest, Mary and Riverside. That form also advised the jury they were to use it if they found in favor of Robinson for the principal amount, interest and attorney fees on the note and guarantee agreement. It is conceded by all parties that Sambol had no connection with the note or the guarantee agreement, and, of course, there was no instruction given which would authorize a verdict against Sambol on either the note or the guarantee. The only instruction authorizing a verdict against Sambol was Instruction No. 14 which submitted the tor-tious acts of conversion or unlawful transfer of secured property. A finding against Sambol should have been in the form of verdict given to the jury in case they found the issues in favor of Robinson under Instruction Nos. 8, 10, 12, 14, 16 or 19. That form of verdict made no reference whatever to principal amount, interest or attorney fees, but called for the assessment of damages in one lump sum.

If the verdict is to be construed as strictly a finding on the balance due on the note, then the finding against Sambol must be disregarded. However, the only basis on which this express finding against Sambol could be disregarded would be to arbitrarily ignore the express finding which the jury made against him. To properly construe the jury’s verdict, the entire verdict must be read and considered without arbitrarily adding or omitting express findings which the jury used.

In this instance, to give full effect to the express finding on the issues which the jury made, it must be concluded the jury found generally in favor of the Robinsons and against Ernest, Mary, Riverside and Sam-bol. To make a finding against Sambol the jury could not have been making a pure finding on the note.

On the other hand, after the jury made its express finding against Ernest, Mary, Riverside and Sambol, it awarded the sums of money it found to be due on the note, plus the interest and attorney fees.

Thus, although the jury made an express finding against those liable on the note and guarantee agreement, it also expressly found against one who was not a party to these agreements.

The conclusion seems to be inescapable to this court that the verdict returned by the jury was not one authorized by the court and it is impossible to determine the intent of the jury from the verdict they did return. Because the jury commingled a finding on the note with a finding against one not liable thereon, the verdict is ambiguous.

To surmise on what the jury intended and ignore what it said would bring a dangerous intrusion upon the fundamental concept of our system of justice which intrusts to the jury the sole duty to find the facts. Johnson v. Girvin’s Estate, 370 S.W.2d 163[2, 3] (Mo.App.1963). It was further stated in Johnson, . .we may not speculate upon what a jury meant by what it said.” 370 S.W.2d 167[2, 3],

It should be apparent that any construction of this verdict would involve surmise and speculation as to what the jury meant. Because a court cannot speculate as to what a jury meant, a verdict which requires speculation to determine its meaning cannot stand. If a verdict is not reasonably clear and definite, it cannot support a judgment entered thereon. Thorne v. Thorne, supra. In that circumstance the judgment must be set aside.

It follows that if the verdict here is not definite and certain then it cannot be said that the jury found for Robinson on any tort theory which would support a verdict for exemplary damages. For that reason, the verdict and judgment for exemplary damages may not stand.

It may be observed that the jury in this case was unquestionably confused by the large number of instructions, the number of parties, and the number of forms of verdict. It should also be noted Robinson submitted, rightly or wrongly, two distinct and separate causes of action, one on the note and the other on the fraud theory. Yet the jury was not instructed to return a verdict on each of these separate and distinct causes of action. It has long been held in this circumstance there must be a separate finding on each cause of action. Rossen v. Rice, 230 Mo.App. 109, 87 S.W.2d 213 (1935).

Robinson contended in oral argument that MAI 36.09 had been used to submit the issue concerning the note, and MAI 36.12 had been used to submit the issue of actual and punitive damages on the tort theory. These forms would not be appropriate to be used in a proper case when two separate and distinct causes of action are submitted without modification to require a jury to make a finding with respect to each cause of action. It should be further noted MAI 36.09 does contain a form allowing the jury to find for the defendant after the form finding for the plaintiff on the note, but this was omitted. Likewise, MAI 36.12 is not followed exactly because the form did not require the jury to name each defendant and list the amount of punitive damages assessed against that defendant.

A further source of confusion in the instructions was undoubtedly the fact the only form given to the jury to find for any of the defendants was the very last form which was appropriate to be used only in case the jury found in favor of all the defendants. Certainly, with separate submissions against multiple defendants, the jury should have been given appropriate forms by which they could express their finding with respect to each defendant as well as with respect to each separate cause of action.

Robinson urged on oral argument the jury simply followed counsel’s final argument and found under the tort submission, but spelled out the method by which they arrived at the amount of damages. This ignores the form of verdict which they followed and which plainly told them it was to be used if they found for the principal amount of the note.

Robinson also argues a finding for him implies a finding by the jury adverse to all other claims submitted. It is true a finding can sometimes be made by implication — such as when the jury returns a verdict on a claim but does not return a verdict on a counterclaim. In that situation, if the verdict on the claim necessarily constitutes a determination of the counterclaim, no express verdict is required. Commercial Nat. Bank of Kansas City, Kan. v. White, 254 S.W.2d 605, 608 (Mo.1953). However, such rule cannot be applied in this case because the verdict returned is ambiguous since it cannot be determined whether the jury made a finding on the note or on the conversion claim. Even if the verdict were not ambiguous, a finding on the note issue would not necessarily constitute a finding on the conversion or transfer of the security issue.

Likewise, it cannot be held the jury found for or against the other parties not mentioned. The verdict must be responsive to all material issues and it should find the issues for or against the respective parties. Albrecht v. Piper, 164 S.W.2d 105 (Mo.App.1942). Further, a judgment entered against a party not based upon a verdict is in excess of the power of the trial court. Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481, 492 (Mo.App.1972). Where a verdict cannot be fairly resolved into a definite finding for either party, it will not support the entry of any judgment. Boone v. Richardson, 388 S.W.2d 68 (Mo.App.1965).

For all of these reasons, the verdict returned in this case will not support a ver-diet in favor of or against any party to this action.

Robinson makes a final contention that the jury must have found under the tort theory because it awarded punitive damages and the instructions clearly stated punitive damages could not be awarded unless actual damages were awarded against the same defendant. Again, the answer is two-fold. First, the verdict is ambiguous. Second, the form of verdict used contained the words “assess their damages.” The jury could well have understood the damages found in the verdict were sufficient to support punitive damages.

The anomaly is contained in MAI to require the jury to state they assess damages when they are actually finding the amount due on a note. While this may be technically correct from legal considerations, it could well have produced confusion to this lay jury.

However, this verdict may not be made clear by considering this possible confusion because it remains ambiguous.

One other matter which may occur on retrial involves the attempt of Ernest to show a payment of $4,800 on the $50,000 loan. This, together with a $5,000 payment which was admitted, would have made a credit of $9,800. However, Ernest had not pleaded any payment of $4,800 nor any facts to show he was entitled to credit for this amount, and when he attempted to do so during trial, the court refused permission. There is some confusion in the brief as to whether the claim concerning the $4,800 was in the nature of a counterclaim or as a credit for payment. However, there will be ample opportunity before another trial for Ernest to amend his pleadings. At that time, the court can determine whether a counterclaim or credit for payment is claimed and can properly rule on any issue arising from such amendment.

Because the verdict of the jury is not definite and certain, the judgment is reversed and the cause is remanded for a new trial as to all parties, including those who did not appeal.

PRITCHARD, C. J., and SHANGLER, DIXON, SWOFFORD and SOMERVILLE, JJ., concur.

SHANGLER, J., concurs in separate concurring opinion in which PRITCHARD, C. J., and SWOFFORD and SOMERVILLE, JJ., concur.

WASSERSTROM, J., dissents in separate dissenting opinion.

SHANGLER, Judge

(concurring).

I concur in the premise of the principal opinion that the verdict of the jury is inconclusive and does not lend itself to transmutation into a judgment by judicial construction. I think it expedient, however, to allay the criticisms of the dissent which, I respectfully would show, are sinuous and elusive.

The principle opinion concludes that the verdict for actual damages is faulty as a finding on the balance due on the note because Sambol, against whom it was also returned, was not an obligor on that undertaking; and that the verdict for punitive damages is faulty because there is no jury return for actual damage for tort to which that finding can relate. These deficiencies, the opinion explains, result from a failure of the instructions.

The dissent renders judgment for the plaintiff on the amount of the note, interest and attorney fee by striking Sambol from the verdict as surplusage, renders judgment for punitive damages on the verdict of $75,-000 and renders judgment for $1.00 actual damage for conversion on the. premise that the punitive damage award implies a tort recovery in at least a nominal amount. This it does on two unacceptable assumptions. The first, “that it makes no difference whether the award of actual damages [$81,650 — the award on the note balance, interest and attorney fee] be considered to have been made for breach of contract or for commission of a tort”. The second, that an appellate court may weigh the evidence to arrive at the intent of the jury as a basis for entry of judgment.

As to the first, of course, it makes all the difference whether the $81,650 damages award was for the breach of the note; if so, the $75,000 punitive damages are not referable to that verdict because an award for breach of contract will not support punitive damages. Smith v. Piper, 423 S.W.2d 22 (Mo.App.1967). If not, and the award for $81,650 was returned for the conversion of the collateral, then the punitive damages verdict for $75,000 rests amply and the appeal is decided. There would then be no need to contrive a fictitious judgment on an implied verdict of $1.00 [or other nominal return] upon which to rest the punitive damages as the dissent goes on to do.

The dissent strays into error, as I have said, because, as a means to justify the return of punitive damages, it misapplies sound principles on the construction of verdicts. It assumes it to be an “established principle of Missouri law [that] the jury’s finding of punitive damages necessarily implies a finding by the jury that the plaintiffs had been the victims of the commission of a tort”. There is a rule which allows a court to construe a verdict which returns punitive damages without mention of actual damages as a judgment for both the punitive and at least nominal actual reparations, but only when the verdict is responsive to proper instructions and when the jury intention is not clouded by other uncertainty. The cases which the dissent cites, Adams v. St. Louis & S.F. Ry. Co., 149 Mo.App. 278, 130 S.W. 48 (1910) and the four others, all are submissions of a single tort theory under proper instructions, so that the express recitation of the verdicts that the jury had found the issues for plaintiff coupled with the return of punitive damages necessarily implied a finding for some actual damage. But that principle is a distance from the assumption of the dissent that “the jury’s finding of punitive damages necessarily implies” actual damage to the plaintiffs from the commission of a tort.

The basic rule, as the cases cited in the dissent show [Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936[1] (1920); Adams, supra, l.c. 50], does not allow punitive damages in the absence of a verdict for actual damages. The exception expressed in Adams, supra, and the other cases which tempers this rule proceeds on the premise that the jury has expressly found the tort issue in favor of the plaintiff, that is to say, that plaintiff suffered some actual damage. Carnes v. Thompson, 48 S.W.2d 903, 905[5] (Mo.1932).

The dissent says that the return of verdict:

“We, the jury, find the issues in favor of plaintiffs and we find that plaintiffs are entitled to punitive damages against the following defendants: Ernest Mountjoy, Mary Mount joy, Riverside Concrete, Inc. and Frank Sambol, in the following amount: $75,000”

provides the express finding of a tort issue in favor of the plaintiff which implies a finding of at least minimum actual damage for plaintiffs to support the punitive damage award. Thus, the argument comes full circle: the verdict for punitive damages is construed to be both a determination of some tort issue in favor of the plaintiffs and thus a basis for entry of judgment of actual damages. The question arises: how can anyone tell? The cases which allow such an inference, as was shown, deal with submissions of a single recovery. The pleadings allege a miscellany of counts, including recoveries on accounting for breach of contract, conspiracy among some of the defendants for conversion of the security, conspiracy among all the defendants to defraud the plaintiffs, and conspiracy among yet other defendants to alienate and convert the security. The evidence went beyond the pleadings and the submissions for the plaintiffs were enlarged to conform to the pleadings. Thus, the instructions included one submission on the note, another submission on the guaranty and loan agreement, and six separate instructions on one tort theory or another against the defendants, in one combination or another.

The dissent says that the return of punitive damages was responsive to Instruction No. 22 which allowed such damages on the jury finding that one of the six tort submissions was willful, wanton or malicious. One problem is that the only verdict which expressly returned actual damages was in the form for the favorable return of issue on the note and guaranty agreement. Another problem is that the return of verdict included Sambol who was never obligated on the note or contract to the plaintiffs. Still another problem is that even if construed as a legal verdict, the return on the note and contract will not support punitive damages. Most telling of all, the award for punitive damages against defendants Ernest Mountjoy, Mary Mountjoy, Riverside Concrete, Inc. and Frank Sambol were not responsive to any instruction for in no one of the six separate tort submissions is a verdict authorized against all these defendants.

This brings the final point. The dissent reconciles these doubts by resort to the trial record to construct a judgment from the jury returns. It is basic doctrine that a verdict should be given effect if at all possible. A judgment may be written upon a verdict, however, only when the jury intention is clear and unambiguous without resort to inference. The trial record is a legitimate aid to that determination. McIlvain v. Kavorinos, 212 S.W.2d 85, 89[7-9] (Mo.App.1948). In order for a verdict to serve as a basis for judgment, therefore, the jury verdict should import a definite meaning. Ralston Purina Company v. Kennedy, 347 S.W.2d 462, 466 (Mo.App.1961). The dissent, however, does not render “the unconditional judgment of the jury” but only the interpretation it finds. Boone v. Richardson, 388 S.W.2d 68, 76[14-16] (Mo.App.1965). There is no sound verdict to construe, only an actual damages award against a surplus of defendants and a punitive damages award returned in the abstract responsive neither to tort issue or legal instruction. The judgments proposed by the dissent rest, ultimately, on a separate judicial assessment of the evidence and the state of mind1 of the jury which considered it. The surmise by a court of what a jury intended which ignores what the jury actually said intrudes upon the fundamental supremacy our system accords the jury to determine fact questions. Johnson v. Girvin’s Estate, 370 S.W.2d 163, 167[2, 3] (Mo.App.1963).

I share the concern of the dissent that a jury trial not be wasted, but in a sense each litigation transcends its own importance and must reflect a rule of law common to all, otherwise we fail the litigants and ourselves. !

WASSERSTROM, Judge

(dissenting).

The majority opinion refuses to give effect to the jury verdict on the ground that the verdict is uncertain in a material respect. I cannot agree that the verdict lacks reasonable certainty. To the extent that any uncertainty does exist, I believe it to be without significance and therefore immaterial.

The uncertainty found by the majority lies in its stated inability to determine whether the actual damages were awarded for breach of contract or whether on the other hand the jury made that award for commission of a tort. The majority discerns a significance in that distinction by holding that only if the jury awarded damages for commission of a tort can the verdict for punitive damages be sustained. In this regard the majority states in its opinion at page 871, supra: “Thus, if the verdict is construed to be a finding on the contract theory that Robinson is entitled to the principal amount due on the note, together with interest and attorney fees, such verdict could not support a verdict for punitive damages.” In my view, the verdict here for actual damages should be construed as an award for breach of contract; but even so viewing the verdict, ! cannot agree with the majority that the award of punitive damages cannot be sustained. The end result should be that it makes no difference whether the award of actual damages be considered to have been made for breach of contract or for commission of a tort.

I.

Concerning the interpretation of the award for actual damages, the record in this case compels the conclusion in my mind that the jury made the allowance for breach of contract. The strongest factor impelling this conclusion is that the verdict on actual damages tracks precisely the third form of verdict submitted to the jury under Instruction No. 25, which specifically stated that it was to be used for the purpose of bringing in a verdict “on the note and guarantee agreement.” The verdict rendered is verbatim the same as the one set out in that third form of verdict, except that the jury filled in the blanks left for the amount of principal balance, the amount of interest, the amount of attorney’s fees and the total sum of those three items. The identity of the verdict rendered with the third form of verdict submitted is so remarkable as to remove all reasonable doubt from my mind with respect to the jury intending to follow this particular form which had been given to it for use in order to give recovery on the contract theory.

II.

The above construction of the award of actual damages as being based on breach of contract does not have the effect of barring recovery of punitive damages, as assumed by the majority opinion. To reach that conclusion the majority must ignore the established principle of Missouri law under which the jury’s finding of punitive damages necessarily implies a finding by the jury that the defendants named in the punitive damage verdict had committed a willful, wanton or malicious tort. A crucial point in this case, upon which there can be no controversy, is that the jury did award punitive damages. This award was made pursuant to Instruction No. 22 which read as follows:

“If you find the issues in favor of plaintiffs, and if you believe that the conduct of one or more of the defendants as submitted in Instructions numbered 8, 10, 12, 14, 16, 19 was willful, wanton, or malicious, you may assess punitive damages in addition to any damages assessed under Instruction No. 21. * * * ”

When the jury awarded punitive damages under that Instruction No. 22, that necessarily meant that the jury found that the defendants named in the punitive damage award had been guilty of willful, wanton or malicious tortious conduct against plaintiffs. That finding necessarily carried to plaintiffs the right to at least nominal actual damages. The lack of an award in at least a nominal amount was an error in favor of defendants of which they cannot complain on this appeal.

These principles have been enunciated in a series of Missouri cases of which a leading one is Adams v. St. Louis & S.F.R. Co., 149 Mo.App. 278, 130 S.W. 48 (1910), in which the court held in part:

“In this case, the court, by its instructions, required the jury, in order to find for plaintiff to find ‘that defendant’s brakeman willfully, violently, and with unnecessary force choked and struck plaintiff and ejected him from the defendant’s passenger coach steps, and wounded or hurt him,’ and the jury by finding the issues for plaintiff have found these facts to be true, and by so doing found that plaintiff was entitled to have at least, nominal damages assessed as actual damages; and when these facts were found the omission by the jury to assess any sum as actual damages was error against plaintiff which, if he had appealed, would have resulted in a reversal of the judgment, but as to defendant it is error in its favor, and, hence, it cannot complain.”

So also in Carnes v. Thompson, 48 S.W.2d 903 (Mo.1932) the court held:

“The verdict recites that ‘the jury find the issues for plaintiff.’ Upon that finding plaintiff was entitled to have actual damages in some amount assessed. Hoagland v. Amusement Co., supra. This court there said (170 Mo. 345, 70 S.W. 878, 881, 94 Am.St.Rep. 740): ‘The jury, in finding for plaintiff, in effect found that defendants arrested the plaintiff, .and cursed and abused him, without any lawful excuse or reason therefor; and upon that finding he was entitled to have actual damages, in some amount, assessed in his favor. Under such circumstances, at the common law he is entitled to pecuniary reparation by way of damages, at least nominal, and as much more, if anything, as the jury may think him entitled to under the evidence.’ ”

Further holdings to the same effect were made in Roney v. Organ, 176 Mo.App. 234, 161 S.W. 868 (1913); Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936 (1920); Courtney v. Kneib, 131 Mo.App. 204, 110 S.W. 665 (1908). While, as pointed out by the concurring opinion, those cases each involved single count submission, the same principle should equally apply to a case involving multiple counts. The concurring opinion cites no authority for drawing a distinction, and I see no reason for doing so.

Under the cases just cited, the jury’s award of punitive damages did supply by implication a finding that the defendants named in that verdict had been guilty of tortious conduct. That therefore supplied in effect “a separate finding on each cause of action” which the majority states to be necessary in its opinion at page 873, supra. Moreover this finding by implication answers the statement of the majority in its opinion at page 873, supra, where it says: “ Even if the verdict were not ambiguous, a finding on the note issue would not necessarily constitute a finding on the conversion or transfer of the security issue.” Of course the finding on the note issue does not constitute a finding as to the tort, but the finding of punitive damages does necessarily do so.

It should be mentioned in passing at this point that there was a perfectly good reason why the jury did not bring in verdicts for actual damages in conversion under Instructions 8, 10, 12 or 14. By virtue of Instruction No. 21, a finding for plaintiffs under any of the four instructions just named called for the award of actual damages in an amount to fairly compensate them for the injury done them. The jury had determined to compensate plaintiffs in full for the entire principal balance due on the note and interest thereon. Additionally, as provided in the Loan Agreement, the jury had decided to award to plaintiffs further all expenses of collection including a very substantial attorney’s fee. That represented all of the actual damages that plaintiffs could possibly have had. The security withheld and converted was originally given only to secure the indebtedness, and once plaintiffs' have recovered the full amount of indebtedness, that is all to which they are entitled by way of compensation. Any recovery of actual damages beyond that would represent a double recovery for the same injury. Not only would this offend common sense, but any attempt by a jury to allow such a double recovery would not be permitted to stand. Randolph v. Simpson, 500 S.W.2d 289 (Mo.App.1973); Hamlin v. Flick, 226 P. 484 (Wash.Sup.1924).

III.

The majority makes much of the fact that the jury included Sambol as one of the defendants against whom it awarded actual damages. The majority opinion says that because Sambol was not a party to either the note or the indemnity agreement, that constitutes some evidence that the jury found actual damages on the theory of tort. It is upon this sole element in the case that the majority opinion erects its whole argument that the verdict is uncertain. This is expressly stated in the majority opinion at page 872, supra: “Because the jury commingled a finding on the note with a finding against one not liable thereon, the verdict is ambiguous.”

The complete answer to this argument is that, if the jury believes the verdict of actual damages to have been based on tort, then no objection can possibly be made to the award of punitive damages. Everyone, including the appellants, concede that punitive damages can be allowed for tortious conduct of the type submitted in Instructions 8,10,12 and 14. Of course, as already repeatedly stated in this dissenting opinion, to my mind it makes no difference whether or not the award of actual damages was on the theory of tort.

For reasons already stated under Point II above, whether the jury awarded actual damages on contract or for tort is essentially a non-issue so far as the propriety of the allowance of punitive damages in this case. Nevertheless to the extent that a decision between these two theories is of interest, the inclusion of Sambol in the award of actual damages does not change my view expressed in Point I that the jury intended to give contract damages.

The allowance of actual damages against Sambol was simply an error committed by the jury. If Sambol had filed an appeal in this case, that allowance of actual damages against him would have to be reversed. However, he has not appealed, and the allowance against him in no way prejudices those of the defendants who have appealed. This error therefore can and should be disregarded as harmless.

IV.

The majority opinion holds that the verdict does not dispose of all the claims submitted. So far as the tort claims against appellants are concerned, the majority restates its view that the verdict is ambiguous; and it adds that even if the verdict were not, a finding on the note issue would not constitute a finding on the tort issue. The first branch of that argument has already been answered under Point I of this dissent, and the second branch was answered under Point II.

The majority opinion further holds the verdict defective for failure to find for or against the defendants Ted Mountjoy and his company Lake Ozark Concrete, Inc. The counts against these two defendants fall within the principle, hereinabove already discussed, that the plaintiffs are not entitled to double recovery. The jury has granted plaintiffs recovery for the full balance due in the note, interest and all costs of collection. Any further damage award against Ted Mountjoy or Lake Ozark Concrete, Inc., would therefore be barred. Consequently, the inference must be drawn that the jury found against plaintiffs with respect to these two defendants.

Such a negative implication can be drawn whenever the court is “convinced that from the whole record the conclusion is irresistible that the jury did consider and determine the issue” on which an express verdict has not been returned. North County Sch. Dist. v. Fidelity & Deposit Co., 539 S.W.2d 469, 476 (Mo.App.1976). In the present case, the record as a whole does lead me to the irresistible conclusion that the jury found in favor of Ted Mountjoy and his company Lake Ozark Concrete, Inc. The evidence against them was incomparably weaker than that against the other defendants on the tort theory. When the weakness of the evidence against Ted Mountjoy and his company is coupled with the fact that any actual damage against them would be duplicitous of that actually awarded against the other defendants, I am firmly persuaded that the jury purposely decided in favor of Ted Mountjoy and Lake Ozark Concrete, Inc.

What plaintiffs sought to do by their multi-count petition was to protect themselves through stating various alternative theories of recovery. The courts have frequently held that in such instances, recovery on one theory stated in one count forecloses recovery on another theory on another count; and in such a case, a verdict against the plaintiff on a second count can be implied so as to render the judgment complete and final. Rossen v. Rice, 230 Mo.App. 109, 87 S.W.2d 213 (1935); Sims v. Spelman, 209 Mo.App. 186, 232 S.W. 1071 (1921); Legrotta v. Pittsburgh Plate Glass Co., 220 S.W. 705 (Mo.App.1920); Moore v. St. Joseph & G.I.R. Co., 268 Mo. 31, 186 S.W. 1035 (1916); Moseley v. Missouri Pac. R. Co., 132 Mo.App. 642, 112 S.W. 1010 (1908); Phillips v. Geiser Mfg. Co., 129 Mo.App. 396, 107 S.W. 471 (1908); Akers v. Ray County Savings Bank, 63 Mo.App. 316 (1895).

V.

No one will disagree with the suggestions in the majority opinion as to how the instructions in this case could have been improved. However, the test to be met is not whether a perfect trial was achieved but rather whether prejudicial error occurred. No prejudice to appellants is pointed out by the majority or concurring opinion and I see none. The evidence in this case against appellants was overwhelming. The just outcome of a seven day trial should not be aborted if avoidable. That result can be avoided by simply according the jury verdict the liberal construction to which it is entitled.

I would affirm.

      . The concurring opinion states that this dissent “renders judgment for $1.00 actual damage for conversion.” Not so. Although plaintiffs were entitled to that, they make no complaint. Absent complaint by the only ones having standing to object, the failure to award nominal damages is harmless error.

      . Instruction No. 21 read: “If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you believed they sustained as a direct result of the occurrence mentioned in the evidence.”

      . Plaintiffs are satisfied with the jury’s award. The fact that they have not appealed fortifies the conclusion that the multiple counts were in fact intended to be alternative.