text:
    KANSAS CITY MORTGAGE COMPANY, Appellant, v. The INDUSTRIAL COMMISSION of Missouri and Division of Employment Security of Missouri, Respondents.
    No. KCD 28290.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Samuel J. Molby, John D. Dunbar, Kansas City, for appellant.
    Terry C. Allen, Dan J. Chatfield, Missouri Division of Emp. Sec., Charles B. Fain, Labor and Industrial Relations Commission of Missouri, Jefferson City, for respondents.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   Kansas City Mortgage Company appeals following a steady string of losses on the question of its liability for Plaza Point, Inc., under the Employment Security Law, Chapter 288, RSMo 1969.

A deputy in the Division of Employment Security held the Mortgage Company stood in the position of Plaza Point under Section 288.110, RSMo 1969, because he found the Mortgage Company had acquired all of the business of Plaza Point and continued the same without interruption. The Mortgage Company appealed to an appeals tribunal of the Division which affirmed the administrative determination. The Mortgage Company then appealed to the Labor and Industrial Relations Commission which adopted the findings and conclusions of the appeals tribunal. The Mortgage Company when appealed to the circuit court of Cole County which affirmed the Commission. On this appeal the Mortgage Company contends it cannot stand in the position of Plaza Point because the date it is deemed to have acquired title under the foreclosure of a deed of trust antedates any deficiency on the part of Plaza Point. Reversed.

There is no dispute as to the facts. On June 10, 1970, Plaza Point executed a note secured by a deed of trust to the Mortgage Company. Plaza Point at the time was financing the construction of an apartment building. On January 1, 1971, Plaza Point became an employer subject to the Missouri Employment Security Law. In June, 1972, the apartment building was completed by Plaza Point and tenants began occupying the building.

On May 21, 1973, following default by Plaza Point on the note payable to the Mortgage Company, the deed of trust securing the note was foreclosed by public sale. The Mortgage Company purchased the apartment building consisting of 99 units together with parking space. Following the purchase, the Mortgage Company notified all tenants who held leases that such leases were cancelled. The Mortgage Company did not obtain any security deposits which were held by Plaza Point nor did it receive any rent payable prior to May 21, 1978. None of the employees of Plaza Point was continued by the Mortgage Company. A management firm was hired to actually operate the building.

On these facts the appeals tribunal and the Labor and Industrial Relations Commission found that on May 21, 1973, the Mortgage Company acquired substantially all of the business of Plaza Point, such business being the operation and management of an apartment complex and immediately thereafter continued such business without interruption.

On this appeal the findings of the Commission as to the facts, if supported by competent and substantial evidence, shall be conclusive, and the jurisdiction of this court is confined to questions of law. Section 288.210; Beal v. Industrial Commission, 535 S.W.2d 450[1] (Mo.App. 1975). The review in this case involves only a question of law because the facts heretofore set out are not in controversy.

Section 288.110 provides: “Any individual, type of organization or employing unit which has acquired substantially all of the business of an employer . . . and in respect to which the division finds that immediately after such change such business of the predecessor employer is continued without interruption solely by the successor, shall stand in the position of such predecessor employer in all respects . . . .”

It is apparent there are two requirements which must be met before the Mortgage Company can be found to stand in the position of Plaza Point. First, the Mortgage Company must have acquired substantially all of the business of Plaza Point and, second, the Mortgage Company must have continued the business of Plaza Point immediately after such acquisition without interruption.

The Mortgage Company contends it does not meet these requirements because it came into possession of the apartment building as of June 10, 1970, under the foreclosure sale, prior to any delinquency by Plaza Point.

The Commission argues the business of Plaza Point was the operation and management of the apartment building, that is, the renting of space to tenants, the collecting of rents, and the furnishing of maintenance and janitor services. The Commission states all of these things were continued by the Mortgage Company after May 21, 1973, and for that reason, the Mortgage Company acquired the business of Plaza Point. The argument concludes that because the Mortgage Company continued to rent apartments and collect rents, the Mortgage Company thereby continued the business of Plaza Point without interruption.

The argument advanced by the Commission overlooks the long established and undisputed rule in this State concerning the effect of the foreclosure of a deed of trust. The foreclosure sale passed title to the Mortgage Company as of the date of the deed of trust,i. e., June 10,1970. Brask v. Bank of St. Louis, 533 S.W.2d 223, 227[6, 7] (Mo.App. 1975). Thus the Mortgage Company did not become the owner of the business of Plaza Point on May 21,1973, but became the owner of the apartment building as of June 10, 1970. Further, the foreclosure of the deed of trust nullified and extinguished all leases made by Plaza Point and the lessees became tenants at will of the Mortgage Company. Kage v. 1795 Dunn Road, Inc., 428 S.W.2d 735, 736[2] (Mo. 1968). The situation was as if the leases had never been executed. Under this circumstance it cannot be held the Mortgage Company met either requirement of § 288.110.

On May 21, 1973, the calendar turned back to June 10, 1970, as far as the title of the Mortgage Company was concerned and the situation became the same as if Plaza Point had never occupied the building or rented apartments therein. June 10,1970, is also the date on which the Mortgage Company is deemed to have begun rental of apartments in the building and that date is prior to the time Plaza Point became an employer subject to the Employment Security Law. Thus, the Mortgage Company did not acquire the business of Plaza Point on May 21,1973, but simply obtained title to the apartment building with the right to rent apartments therein with a related back date of June 10, 1970.

Further, the extinguishment of all leases and the conversion of all tenants to tenants at will does not constitute the continuation of Plaza Point’s business of renting apartments. For the Mortgage Company to have continued the business without interruption, it would have become a substituted landlord on all leases. This is not possible following a foreclosure sale. Kage, supra, at 737.

In addition the Mortgage Company did not continue in its employ any Plaza Point employees, did not receive any rent for any period prior to its actual occupancy of the building, and did not receive any security deposits from Plaza Point. All of this firmly rebuts any legal conclusion that the Mortgage Company continued the business of Plaza Point.

Because the Mortgage Company did not acquire substantially all of the business of Plaza Point and continue the same without interruption, the finding of the Labor and Industrial Relations Commission is contrary to law. The Mortgage Company does not stand in the position of Plaza Point under the Employment Security Law. The judgment is reversed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge,

license: Public Domain

text:
    RUSH JOHNSON FARMS, INC., a corporation, Plaintiff-Appellant, v. MISSOURI FARMERS ASSOCIATION, INC., a Missouri Corporation, Defendant-Respondent.
    No. KCD 28343.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Harry L. Porter, Marceline, for plaintiff-appellant.
    Jack Lukehart, Brunswick, for defendant-respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge,

This ease presents for the first time in Missouri the question of whether or not a farmer may be considered a “merchant” under the Uniform Commercial Code, § 400.2-201, RSMo 1969.

Rush Johnson Farms, Inc., brought suit against Missouri Farmers Association, Inc., (MFA) for $4,094.60 which Johnson claimed to be the balance due for soybeans sold to MFA. MFA defended on the ground Johnson had entered into a contract for the delivery of 6,000 bushels of beans and had failed to deliver the entire amount and the sum withheld represented damages to MFA for the shortage. Johnson contended the contract was not for a definite quantity of beans. Further, Johnson argued the contract was oral and under § 400.2-201 could not be proven because it involved more than $500 and was not in writing signed by him. MFA countered by stating Johnson was a “merchant” within the code definition and under subsection 2 of § 400.2-201 the oral contract was admissible.

By the court’s instructions the jury was authorized to find an indebtedness from MFA to Johnson if there were not a contract for the sale of 6,000 bushels of beans and if MFA had not paid for all of the beans delivered. The jury returned a verdict in favor of MFA.

On this appeal the only question preserved for review by Johnson is whether or not Johnson can be held to be a merchant under sub-section 2 of § 400.2-201 so as to invoke the exception therein contained for the proof of an oral contract. Affirmed.

Johnson’s petition was brought in the name of a corporation, however, the proof at trial did not indicate any transaction in the name of the corporation. No point is made on this appeal concerning whether or not the transaction was a personal or a corporate one. For purposes of this opinion, the corporate status of Johnson will be disregarded.

Johnson testified he owned farms in two Missouri counties. In addition, the proof showed he owned a farm in partnership with Andrew Baer who apparently carried out the actual farming operation on both the partnership land and that belonging to Johnson. Johnson testified he had sold soybeans to elevators for many, many years, although this was the first time he had sold his beans to the MFA elevator in Salisbury.

When Johnson was getting ready to sell his ’72 crop in 1973, he stated he had checked with a number of elevators to determine the market price of soybeans. He called the MFA elevator at Salisbury and requested he be notified when beans reached $4.00 a bushel. On January 2,1973, the secretary at such elevator called Johnson and told him beans had reached $4.02 per bushel. He stated he agreed to sell his crop at the $4.02 figure and estimated he would have from 5,000 to 6,000 bushels. The elevator secretary testified the agreement was to sell the definite quantity of 6,000 bushels and the jury found this to be the fact.

Within a few days after January 2, the secretary mailed Johnson a written contract calling for the sale of 6,000 bushels of soybeans at $4.02 per bushel. Johnson stated he received this and was excited, but he did not contact the elevator. Instead he threw the contract away.

The court, at least by implication, found Johnson came within the meaning of the word “merchant” when it submitted this case to the jury.

Section 400.2-105 defines the word “goods” as used in § 400.2-201 to include “the unborn young of animals and growing crops.” Section 400.2 — 104 defines “merchant” as:

. a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

The UCC comment following § 400.2 — 104 states:

The term “merchant” as defined here roots in the “law merchant” concept of a professional in business. The professional status under the definition may be based upon specialized knowledge as to the goods, specialized knowledge as to business practices, or specialized knowledge as to both and which kind of specialized knowledge may be sufficient to establish the merchant status is indicated by the nature of the provisions.
The special provisions as to merchants appear only in this Article and they are of three kinds. Sections 2 — 201(2), 2— 205, 2 — 207 and 2 — 209 dealing with the statute of frauds, firm offers, confirmatory memoranda and modification rest on normal business practices which are or ought to be typical of and familiar to any person in business. For purposes of these sections almost every person in business would, therefore, be deemed to be a “merchant” under the language “who . by his occupation holds himself out as having knowledge or skill peculiar to the practices . . . involved in the transaction . . .” since the practices involved in the transaction are non-specialized business practices such as answering mail. In this type of provision, banks, or even universities, for example, well may be “merchants.” But even these sections only apply to a merchant in his mercantile capacity; a lawyer or bank president buying fishing tackle for his own use is not a merchant.

The question of whether or not a farmer can be considered a merchant under the provisions of the UCC here considered has been the subject of a number of decisions. Johnson relies primarily upon Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965) and Loeb and Company, Inc. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975) and two Illinois Court of Appeals cases. Johnson concedes with reference to the Illinois Court of Appeals cases that the Supreme Court of Illinois in Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975) has held a farmer may be a merchant and in effect has overruled the Court of Appeals cases.

A number of states have held a farmer may qualify as a merchant under these sections of the UCC. The case which this court finds to be the better reasoned of all of the cases which has considered the question is Nelson v. Union Equity Co-op. Exchange, 548 S.W.2d 352 (Texas 1977). In Nelson the Supreme Court of Texas thoroughly considered the section involved and cited most of the cases which have dealt with this question. The Texas court reached the conclusion that the farmer involved in that case fell within the definition of merchant as contained in the UCC. The court pointed out the distinction between the definition of the term merchant as used in the UCC and the dictionary definition which has been relied upon by some courts in deciding this question. In Nelson the court held the definition to be applied is that contained in the UCC.

In Nelson the court stated: “Under that definition, a person is a ‘merchant’ if he (1) deals in goods of a kind . . ..” The court held Nelson satisfied that requirement because he dealt in wheat. The court pointed out the UCC does not define the word “deal” but quoted from Ballentine’s Law Dictionary the definition “to buy or to sell.” The court held Nelson qualified under that definition because he raised his own wheat and annually sold that crop himself.

Under the circumstances of this case, Johnson would qualify as a merchant since he is shown to be one who deals in beans because for many, many years he has sold his bean crop. He admitted he was familiar with the operation of elevators and how they conducted business and further showed himself capable of ascertaining the market price of beans. In Nelson the court also observed that under the definition of merchant in the UCC it is not necessary that a person actually hold himself out as having some particular knowledge or skill to qualify as a merchant, but rather a person by his occupation holds himself out as having knowledge or skill peculiar to the goods involved in the transaction.

It is probably on this point that the sharpest division occurs between the cases holding a farmer can qualify as a merchant and those which hold to the contrary. In Nelson the court held that an experienced farmer does by his occupation hold himself out as having knowledge or skill of the goods which he is selling. The court further held that a reasonable person could expect an experienced farmer to thoroughly know the crop he had raised and held for sale.

This court adopts the reasoning in Nelson. This court does not believe that anyone in this day and age looks upon any person or corporation who conducts a farming operation as a simple tiller of the soil. It is well known that the marketing of a crop is certainly as important as the raising of it. Johnson fully revealed in this case his knowledge of the market and his thorough familiarity with marketing practices and procedures in trying to obtain the best price possible for his product. Under the definition of merchant, as contained in the UCC, Johnson fully qualified as such so that the oral contract in this case was not barred under the statute of frauds as contained in § 400.2-201.

To hold Johnson meets the definition of merchant does not impose any burden on him or any farmer with similar qualifications. The only requirement the UCC imposed upon Johnson was to notify MFA in writing of his objection to the contract which specified 6,000 bushels. For a person entering into a transaction involving almost $25,000, this does not appear to be unreasonable.

This court further finds the definition of goods, quoted above, which includes growing crops as well as the unborn young of animals, to clearly indicate the framers of the UCC contemplated that farmers could be included within the transaction covered by § 400.2-201. This, coupled with the comment on § 400.2-201, quoted above, that “almost every person in business would, therefore, be deemed to be a ‘merchant’ . since the practices involved in the transaction are non-specialized business practices such as answering mail” would indicate a clear intent to give a broad meaning to the term “merchant” which can include farmers.

It should be made clear a farmer is not per se included in the definition of “merchant.” Whether or not a particular farmer qualifies as a merchant under the sections discussed would depend on the individual experience and activities of the person involved. This court holds Johnson in this case fully came within the definition of “merchant.”

The courts in Loeb, supra, and Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976) considered that part of the UCC comment pertaining to a “professional in business” to show a farmer is not intended to come within the definition of “merchant.” However, the court in Nelson held the farmer there was a professional and not a casual or inexperienced seller. The court held he was a professional in the business of growing and selling the crops he raised. Under either the Nelson approach, or the specific comment on § 400.-2-201 that the only practice involved is the answering of mail, the result of the same.

The opposite approach taken by the courts in the Loeb; Cook Grains; and Decatur Cooperative cases, seems to treat any farmer as a simple tiller of the soil and strictly non-professional in the marketing of his crops. These arguments are well answered in Ohio Grain Co. v. Swisshelm, 40 Ohio App.2d 203, 318 N.E.2d 428 (1973) when the court stated at 318 N.E.2d 430[2]:

He would represent defendant as a simple tiller of the soil, unaccustomed to the affairs of business and the marketplace. Farming is no longer confined to simple labor. Only an agribusinessman may hope to survive. This defendant was clearly familiar with farm markets and their operation and followed them with some care.

Johnson was an experienced farmer who was weil conversant with the marketing of his bean crop. He received the written confirmation of his agreement to sell. The only obligation the UCC placed upon him was to write a note to MFA stating he had not agreed to sell 6,000 bushels, if that were the fact. This is not a great burden to place upon anyone who is capable of owning and operating a large farming operation and who knows the marketing procedures for his produce. To hold Johnson did not meet the simple requirement of a “merchant” under the UCC would be an affront to his proven experience and capability. This court is not willing to take a head in the sand approach and close its eyes to the plain facts existent in the farming industry.

For the reasons stated, this court holds Johnson came within the definition of “merchant.” The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    DIVISION OF EMPLOYMENT SECURITY, State of Missouri, Plaintiff-Appellant, v. TRICE CONSTRUCTION COMPANY, Defendant-Respondent, Capitol Projects, Inc., Garnishee-Respondent, Travelers Indemnity Company, Intervenor-Respondent
    No. KCD 28370.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Rick V. Morris, Terry C. Allen, Jefferson City, for plaintiff-appellant.
    Henry P. Andrae, Richard S. Brownlee, III, Jefferson City, for garnishee-respondent.
    James W. Gallaher, Jefferson City, for defendant-respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

The Division of Employment Security appeals from an order of the circuit court quashing two garnishments.

On this appeal the Division contends the court erred because the State has a priority to the funds sought to be garnished under § 430.330, RSMol969; the money in question belonged to Trice Construction Company and was subject to garnishment; and the subrogation lien of Travelers Indemnity Company does not take priority over the claim of the Division. Affirmed.

The issues in this case were submitted to the court on a stipulation of facts. On March 4, 1974, Capitol Projects, Inc., entered into a contract with Trice Construction Company for the construction of a building in Jefferson City. On the same day Travelers entered into a performance bond with Capitol by which Travelers agreed to insure the performance of the contract by Trice. Travelers also agreed to insure that all labor and material bills were paid.

On December 12, 1974, Trice wrote Capitol that it was financially unable to complete the project. Thereafter Travelers assumed the financial responsibility for completing the building and Trice did not perform any work after that date.

On November 27,1974, and December 31, 1974, the Division filed a certificate of assessment against Trice with the circuit clerk of Cole County, pursuant to § 288.170, RSMol969. The Division later filed a garnishment on each certificate directed to Capitol as garnishee. The certificates indicated a total sum due the Division of $3,761.28.

The Division propounded interrogatories to Capitol, as garnishee, and in response thereto Capitol stated it was holding the sum of $15,282.23 which belonged to Trice. This amount had been earned by Trice but had been retained by Capitol under its contract with Trice which allowed for a ten percent retainage until the architect certified to Capitol the building had been completed.

Following the filing of the answers by Capitol, Travelers was allowed to intervene. Travelers thereupon asserted its claim to the funds being held by Capitol by reason of its subrogation lien acquired when it was required to perform the contract on the default of Trice.

The court ordered the garnishments quashed and this appeal by the Division followed.

The right of a surety to amounts retained by an obligee under a performance bond has been the subject of much litigation. One of the leading eases in this area is Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896). In that case the court held a surety who is required to perform a building contract under its bond obtains an equity in any retainage held by the obligee of the bond. The court further held this equity related back to the date the performance bond under which the surety was required to complete the construction was made. In that case the court held the lien of the surety was superior to the right of a bank to whom the contractor had made an assignment of amounts due under his contract because the surety’s obligation was dated prior to the assignment given to the bank.

That case, and the principle established therein, was recognized in Indiana Truck Co. v. Standard Acc. Ins. Co., 232 Mo.App. 63, 89 S.W.2d 97 (1936) where the court stated, at page 104[5], this doctrine “. is obviously a salutary one and founded upon established principles of right and equity . .

This doctrine was also recognized in National Surety Corporation v. Fisher, 317 S.W.2d 334, 341, 342 (Mo.banc 1958). In that case the court cited a number of cases in which this doctrine was stated and with reference to those cases said at page 341:

In general, these cases hold that a surety which executes a performance bond on a construction contract, and which thereafter is required to pay unpaid labor or material claims, has an equitable right of subrogation and an equitable lien on funds retained by the owner or obligee which is superior to the right of one who takes by assignment from the contractor after the execution of the bond; and it is thus held that the surety’s equitable lien relates back to the date of its bond. The gist of these cases seems to be that the surety is subrogated to the rights of the owner or obligee, who could, on default, continue to retain funds which it had not paid to the contractor, forfeit his right thereto, and apply them to the payment of claims on the job.

The court further stated at page 342:

We agree with counsel for Century that the equitable lien through subrogation may attach to progress payments earned, as well as to a specifically retained percentage, under some circumstances; but this is only true, we think, if the progress payment has actually been retained by the owner or obligee, or placed under the control (or joint control) of the surety.

While the court in both Indiana Truck and National Surety did not find the facts in those cases to call for an application of the rule allowing an equitable lien to the surety, there is no doubt the rule announced in Prairie State National Bank is recognized in Missouri as being the correct one to follow. There are cases involving public works contracts such as First State Bank v. Reorganized Sch. Dist. R-3, Bunker, 495 S.W.2d 471 (Mo.App.1973) which cite the rule as stated in Prairie State National Bank and National Surety. However, the Division contends cases involving public works contracts are not applicable to this situation. It is not necessary to follow this interesting tangent since the rule is well recognized in cases which do not involve a question of public works contracts.

Application of the above stated rule to the facts in this case results in an equitable lien in favor of Travelers on the amount retained by Capitol from sums earned by Trice. This lien in favor of Travelers dates from March 4, 1974, the date Travelers undertook its obligation. The date Trice became obligated to the Division does not appear, but it is apparent this obligation could not have accrued under this contract prior to the date Travelers executed its bonds. In that event the equitable lien which Travelers acquired antedates the date the Division seeks to collect in this proceeding.

The Division contends it is entitled to priority to the extent of its claims by reason of § 430.330. This section gives priority to the State whenever any person indebted to the State is insolvent. That section applies only to the general assets of Trice which would otherwise go to pay the creditors of Trice. In Re Mt. Vernon Bank, 334 Mo. 549, 66 S.W.2d 850, 854[4] (1933). In this case the amount held by Capitol was not part of the general assets of Trice which would be available to pay creditors of Trice because it was subject to the equitable lien of Travelers.

The Division further contends the money in the hands of Capitol belongs to Trice and is subject to garnishment. What has already been said disposes of this contention because the funds held by Capitol are subject to the equitable lien of Travelers and for that reason Travelers has a superior right to the State to such funds.

The State finally contends Travelers simply became subrogated to Trice and acquired no greater rights in the funds than Trice had. It is clear Travelers acquired more rights than attach with a simple sub-rogation. As indicated in the cases discussed herein, Travelers obtained an equitable lien on the retainage held by Capitol which relates back to the very origin of the contract. With an equitable lien attached prior to the time Trice’s obligation to the State arose, Travelers is entitled to the funds as against the Division.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Leeta I. CLARK, Administratrix of the Estate of Harold J. Hawkins, Deceased, Plaintiff-Appellant, v. Teri O’NEAL, Defendant-Respondent.
    No. KCD 28407.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      James E. Baldwin, Lebanon, Robert F. Pyatt, Chillicothe, for plaintiff-appellant.
    Lloyd A. Cleaveland, Gordon E. Cox, Chillicothe, for defendant-respondent.
    Before SWOFFORD, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

This action to discover assets of a decedent’s estate was originally filed in the Probate Court, pursuant to Section 473.340 RSMo 1969. Plaintiff, administratrix of the estate of Harold J. Hawkins, claimed that certain assets of the estate, namely thirteen certificates of deposit totaling $22,-000.00 and a note secured by a deed of trust in the amount of $34,080.00 payable to Hawkins, were being wrongfully detained from her by defendant. Defendant answered that she received the property in question from the decedent as a gift causa mor-tis. Issue having been joined and the probate judge disqualified, the cause was heard by the Circuit Court without a jury. From a judgment for defendant, plaintiff appeals. The sole issue is the sufficiency of the evidence to support the finding of a gift causa mortis.

The evidence showed that decedent, Harold J. Hawkins, was a widower sixty-five years of age and a long-time resident of Avalon, Missouri. His father had left him, his mother had died when he was three or four years old, and he had been raised by his grandmother and his uncle. Hawkins had a half-brother and two half-sisters but had had virtually no familial contact with them during his lifetime. He had stated on several occasions that he did not care anything about them and that they did not care anything about him.

Defendant Teri O’Neal was the niece of Hawkins’ deceased wife, and while she was growing up had spent about as much time in his home as in her own. After she was married, Hawkins maintained frequent social contact with her and her husband, going to their house on numerous occasions for dinner, especially at Christmastime. Hawkins had stated several times that it was as though Teri was his own daughter and that he wanted her to have his property when he died. When he was admitted to the hospital in Chillicothe on June 16, 1973, he told the hospital authorities that Teri was the person to be contacted in case of emergency. He also requested a friend to inform Teri that he was in the hospital.

The testimony regarding the gift of the certificates of deposit and the note and deed of trust came principally from Merle O’Neal, Teri’s husband. He testified that he first learned that Mr. Hawkins was ill on the Saturday next preceding the Monday on which he died. When Merle learned that Hawkins was ill, he and Teri went to the hospital in Chillicothe immediately. When they saw him, he was receiving oxygen and stated he did not think he was going to make it. Hawkins told them he was sorry he did not have a will made. Mr. Hawkins stated he did not know his half-brother or half-sisters and did not particularly care anything about them. He further stated that his sister in Lebanon, Missouri, Leeta Clark, was the only one that he cared anything about. He said he did not want his half-brother or half-sisters contacted. He stated that he only wanted to help Leeta Clark out a little bit. On Sunday, about 10:00 p. m., they went back to the hospital, Mr. Hawkins was in the intensive care unit and appeared very weak and struggling to keep his breath. Hawkins declared that he was having terrific pain and did not think he was going to live through it. He stated he did not feel like doing anything and did not know whether he was going to make it out of the hospital. He again said he was sorry he did not have things taken care of for Teri.

Merle and his wife stayed at the hospital all through the Sunday night of June 17. Merle went to work on Monday and was summoned to the hospital that afternoon about 3:00. Hawkins was still in intensive care. When they went in to see him, Hawkins asked whether Teri had the papers. She replied that she had not gotten them yet but that since Merle was there they could go get them. Hawkins inquired whether they could find a key and get the papers and Teri said she could. Teri and Merle then went to Avalon. When they got to Avalon they stopped at Myrtle Osgood’s house and asked her to go with them to Hawkins’ house. The three of them went to Hawkins’ house and went inside. Teri went to the desk and opened the top middle drawer. Right on top was a white envelope. She looked in it. They then left the house. As Teri looked into the envelope, Merle could see the thirteen certificates of deposit and the note and deed of trust. The three of them then left Hawkins’ house, Mrs. Osgood was taken back to her house, and Merle and Teri then went back to the hospital.

When Teri took the envelope, she placed it in the side pocket of her purse. About three or four inches of the envelope were showing above the side pocket. After they arrived back at the hospital they went to Hawkins’ room. Hawkins asked them whether they had the certificates and note, and Teri replied that she did. She held up her purse and said, “It’s right here.” Mr. Hawkins then replied, “Good, now you keep it, it’s yours.” Mr. Hawkins further stated at this time that he did not feel like writing. He said he did not think he would make it and that after his last pain he did not think he was going to live through it. He told Merle that the doctor had told him he had had two heart attacks. That night he died.

There was testimony from several witnesses, including the attending physician, that, although Hawkins was in pain, he was not confused nor was his mind fuzzy while he was in the hospital. To them, he appeared to be as mentally alert as he had always been and knew what he was doing and saying.

Plaintiff narrows the scope of inquiry on this appeal by limiting her attack to only two of the constituent elements required for a gift causa mortis. She states in her brief: “Thus, the issues before this court concerning the validity of the gift causa mortis are reduced to whether or not a sufficient delivery under the existing law together with donative intent has been established by the defendant’s evidence.”

However, as a preface to her discussion of these two requirements, plaintiff undertakes to develop the extent of the burden of proof resting on an alleged do-nee. In this respect, she insists that the donee must prove the gift “beyond a reasonable doubt,” citing Foley v. Harrison, 233 Mo. 460, 136 S.W. 354 (1911), Gillespie v. Ringhausen’s Estate, 364 S.W.2d 633 (Mo. App. 1963) and In Re Petersen’s Estate, 295 S.W.2d 144 (Mo. 1956). The expression in the Foley opinion relied upon by plaintiff was explained away as dictum in a subsequent opinion in McBride v. Mercantile-Commerce Bank & Trust Co., 330 Mo. 259, 48 S.W.2d 922, 927 (1932), and the utilization of the concept “beyond a reasonable doubt” was disapproved in Matter of Estate of Passman, 537 S.W.2d 380 (Mo. banc 1976). A correct statement of the applicable rule is that the donee must prove the gift by evidence which is clear, cogent and convincing. Matter of Passman, supra 1. c. 384; McBride v. Mercantile-Commerce Bank & Trust Co., supra; Genteman v. Sutter, 215 S.W.2d 477 (Mo. 1948); In Re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401 (1939).

Viewing the question of Hawkins’ donative intent in light of the foregoing rule, there cari be no doubt that he intended to make the gift, if the testimony of Merle O’Neal is believed. Plaintiff strives strenuously to discredit that testimony be pointing out minor alleged discrepancies, some slight variance from a prior extra-judicial statement, and the financial interest of this witness inasmuch as he is the donee’s husband. These matters all relate to credibility of the witness, as to which Rule 73.01-3(b) commends deference to the finding of the trial court who saw and heard the witness in person. Furthermore, the husband’s testimony is consistent with the background facts and was corroborated by the testimony of such other witnesses as were available. It cannot be said that the evidence here on donative intent fails to measure up to the legal standard.

As to the issue of delivery, “[n]o absolute rule can be laid down as to what will constitute a sufficient delivery to support a gift in all cases, for in each case the character of the delivery requisite to sustain the transaction as a gift will depend very largely on the nature of the subject matter of the gift and the situation and circumstances of the parties . . . it is not necessary that there be a manual delivery, or an actual tradition from hand to hand, where . . . constructive or symbolic delivery would be sufficient.” 38 C.J.S. Gifts § 82, p. 902-3. Under the facts here, the instructions from the donor to go to his house, find the house key, enter the house and take possession of certain documents is not too far different from handing over the keys to a safe deposit box, which has been held a sufficient delivery numerous times. Foley v. Harrison, 233 Mo. 460, 136 S.W. 354 (1911); McBride v. Mercantile-Commerce Bank & Trust Co., 330 Mo. 259, 48 S.W.2d 922 (1932). Even more directly to the point, actual physical delivery to the donee by the donor has been held unnecessary when the donee already had the property in possession at the time of the dona-tive expression. Gosney v. Costigan, 326 Mo. 1215, 33 S.W.2d 947, 953 (1930); In Re Franz' Estate, supra; In Re Schreihart’s Estate, 223 Wis. 218, 270 N.W. 71 (1936); Davis v. Kuck, 93 Minn. 262, 101 N.W. 165 (1904). And see Carradine v. Estate of Carradine, 58 Miss. 286 (1880), where digging up and retention of buried coins at the donor’s direction was held to constitute a sufficient delivery.

The judgment is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply the law. It therefore should be and is affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

All concur.

      . Passman arose in the context of a jury trial on an issue of whether a gift inter vivos had been made. The court’s ruling on the form of the burden of proof instruction elucidates equally the nature of the burden of proof in a court tried case. Although the alleged gift in Passman was claimed as inter vivos, rather than causa mortis, the underlying problem was the same because the gift there was first claimed after the death of the donor. With respect to the requisite weight of the evidence, “[t]he rule in relation to gifts causa mortis is the same as in relation to gifts inter vivos.” McBride v. Mercantile-Commerce Bank & Trust Co., supra.

      . Plaintiff makes a passing insinuation that the administration of drugs at 4:20 p. m. on the day of Hawkins’ death “shows the possibility that the deceased’s mind might have been affected at the time any alleged conversation might have taken place concerning the making of a gift causa mortis . . ” No evidence appears in the record sufficient to rebut the presumption that Hawkins was competent and had a free will when he made this gift. 31A C.J.S. Evidence § 147, p. 361. Indeed, all the evidence on this matter was to the effect that Hawkins was not confused, was alert and knew what he was doing and saying.


author: PRITCHARD, Chief Judge.

text:
    Marian Ruth SULLIVAN, Appellant, v. Aubrey W. SULLIVAN, Respondent.
    No. KCD 28496.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      John E. Burruss, Jr., Jefferson City, for appellant; Hendren & Andrae, Jefferson-City, of counsel.
    Robert L. Hyder, Jefferson City, for respondent; Hyder & McHenry, Jefferson City, of counsel.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

In this dissolution of marriage case, appellant contends that the trial court erred in dividing the property of the parties in that under § 452,330.1, RSMo (1973 Supp.), she was denied a just and equitable share therein; that the trial court erred in failing to award her maintenance; and that it erred in failing to require respondent to pay $2,000.00 which was loaned to him by her, the money being insurance settlement proceeds which she was holding for her son by a previous marriage.

The parties were married August 16, 1970, lived in Jefferson City, Missouri, for .a time, moved to Arlington, Virginia, in 1972, where respondent was an aide to a Congressman, then they moved back to Jefferson City where respondent continued his congressional employment. Before the marriage, respondent owned a home at 420 East Dunklin in Jefferson City into which the parties moved on returning from Virginia, where they owned a home which was then sold. Respondent, in planning the marriage, bought a house at 13 Henwick Lane in Jefferson City, paying $1,000.00 down payment and giving a $2,000.00 second mortgage which appellant paid off before the marriage. This house was sold when the couple moved to Virginia.

There was about $3,100.00 from the sale of the Virginia property which was expended for improvements on the Dunklin Street property, which continued to be owned by respondent. Most of the furniture except for a television set, a platform rocker, and a rolltop desk used during the marriage belonged to appellant before the marriage. A shipping bill for the move from Virginia was marked paid as payment for damage to the furniture during shipment.

By the decree of dissolution respondent was awarded the Dunklin Street property owned by him prior to the marriage; a color television, a rolltop desk, a king size bed, a large mirror, a fireplace screen, a dining room suite, two recliner chairs, and a 1970 Harley Davidson motorcycle, upon which he was to pay the remaining obligation. Appellant was awarded all of the furniture, which was her personal property prior to the marriage, which was in the Dunklin Street residence; a 1964 Buick; and in lieu of all other marital property, respondent was to pay her $2,500.00. No maintenance was awarded appellant.

As to the division of the property, it is a matter resting within the sound discretion of the trial court. In re Marriage of Schulte, 546 S.W.2d 41, 46-47 (Mo.App. 1977), where it was said that an appellate court will interfere only if the division of property is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Here, there is no question but that the Dunklin Street property was respondent’s separate property acquired before the marriage. This is so even though its value was increased by virtue of improvements made from funds contributed by appellant, i. e., from other marital property. Stark v. Stark, 539 S.W.2d 779, 783[5] (Mo.App.1976). See also Cain v. Cain, 536 S.W.2d 866, 872 (Mo.App.1976). The value of the Dunklin Street property at the time of dissolution, so as to give a precise basis for enhanced value by reason of contributions made from marital property, and hence to be a factor for the division of marital property, which was done in the Stark case, supra, is not in evidence. It does appear that $3,100.00 of the sale proceeds of the Virginia property, which was undoubtedly marital property, was used by the parties to improve the Dunklin Street residence. $2,500.00 was awarded appellant as and for other marital property, and it may be assumed that about one-half of the Virginia sale proceeds was awarded appellant, plus the difference in any other property to make up the total of $2,500.00. The contributions of the parties to the marital property [a relevant factor under § 452.330 1.(1)] was disputed. Respondent contended appellant used all of her earnings upon herself; appellant denied that and claimed that the money was spent by the two of them for the home and other necessities. The resolution of this conflict was for the trial court. In any event, it does not appear that the trial court’s division of this small estate of the parties was so disproportionate as to amount to an abuse of discretion. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An inability to support oneself is one of the factors which must be shown to justify an award of maintenance under § 452.335. See In Re Marriage of Neubern, 535 S.W.2d 499, 503[4, 5] (Mo.App.1976); In Re Marriage of J_H_M_, 544 S.W.2d 582, 587[6] (Mo.App.1976). Although appellant did not have sufficient property to provide for her reasonable needs, and was at the time of trial unemployed and recovering from a series of surgeries, she testified that she hoped to return to work soon. As said in Beckman v. Beckman, 545 S.W.2d 300, 302[5, 6] (Mo.App.1976), “For maintenance Missouri law requires more than unemployment.” Whatever may be the import of these cases, the facts show that appellant was unable to work at the time of trial because of illness; she was living with “and off of” her parents; she, being over age 40, had a teenage son to support; and she was then practically destitute. She was guilty of no marital misconduct according to the record. Her reasonable living expenses, rent, food, hospitalization insurance, car expenses, medication, utilities, and miscellaneous, were testified by her to total about $547.00 per month. The evidence is that respondent’s take-home pay was $1,300.00 per month. When working, appellant’s take-home pay was $317.00 per month. The parties were married more than five years. Considering all the relevant factors of § 452.335, it appears that the trial court erred in not awarding maintenance to appellant, and that a reasonable award would be $250.00 per month, being subject, of course, to future modification upon a showing of changed circumstances of the parties.

Appellant cites no authority that she was entitled to payment from respondent of $2,000.00 loaned to him from her son’s money. The point may be deemed abandoned. Rule 84.04(d); Holtmeyer v. Scherer, 546 S.W.2d 29, 35[17] (Mo.App.1976). However, it would appear that if the money were in fact loaned by appellant, in a fiduciary capacity, to respondent upon his promise to repay it, it would have nothing to do with the dissolution proceedings, and a separate action might be maintained, if not otherwise barred, by the son or by someone on his behalf, to recover it.

That part of the judgment dividing the marital property and the requested payment of the fiduciary fund is affirmed. That part of the judgment denying maintenance is reversed and the case is remanded with directions to enter a judgment for maintenance in the amount of $250.00 per month from the date of the decree of dissolution herein.

All concur.


author: DIXON, Judge.

text:
    Robert SEARS, d/b/a Sears Construction, Plaintiff-Respondent, v. Francis KISTNER and Elsie L. Kistner, Defendants-Appellants.
    No. KCD 28499.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    R. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Miller, Humphreys & Seidel, Trenton, for defendants-appellants.
    James S. Stubbs, Chillicothe, for plaintiff-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendants appeal from a judgment for plaintiff in a court-tried case. The issues raised involve sufficiency of the evidence. The judgment is affirmed.

The evidence offered by Sears showed Francis and Elsie Kistner came to his home on September 20, 1974 and made inquiries about building a home for them on a foundation. The following morning he and his wife, who was his business partner in the home construction business, went and inspected the foundation. A blueprint for a precut home was discussed. Changes had to be made on the blueprint since the size of the Kistners’ foundation did not conform to the size of the precut house. Later that same afternoon, Mrs. Kistner returned to Sears’ office with some additional blueprint modifications and signed a contract authorizing work on the home to commence. At that time, she was given a “cost analysis sheet” which contained sums for heating, plumbing and labor to complete the building. Before construction commenced, Mrs. Kistner had made additional changes in the blueprints. These modifications were necessary since an outside contractor had poured concrete for a fireplace on the Kist-ners’ foundation at a location determined by the Kistners. The Kistners lived in a trailer approximately one hundred feet from the site of their new home during the construction. Sears presented Mrs. Kistner with a bill for final payment for the work done, but she balked at paying it as she was unhappy with the location of the utility room and the fireplace. She also presented Sears with a list of other imperfections in the house. He and his carpenters made the repairs on the defective items. Kistner told her that he could not move the fireplace, but would rearrange the location of the utility room if she desired. Sears asked Mrs. Kistner if everything was proper, and she responded that the door still needed to be fixed. He assured her that it would be replaced. She then told him that she would make arrangements with the bank for the final payment, but this bill was never paid. Sears testified that he had secured a replacement door and that he was ready to put it in but that the Kistners refused to let him do so.

The foreman on the job said he had constructed the utility room exactly where Mrs. Kistner directed it to be placed. He also stated that Mrs. Kistner told him that there were no further repairs needed.

Mrs. Robert Sears stated she had been present during the negotiations between her husband and the Kistners in connection with his building a home for them. She had prepared the cost analysis sheet for the project. A total of $10,351 and “a few cents” were still owed by the Kistners for the work performed by her husband.

The heating and air conditioning contractor testified that he had put in the heating system at the Kistners’ home and that it worked properly and met F.H.A. standards.

At the close of plaintiff’s evidence, defendants’ attorney made a statement that no submissible case had been made against Mr. Kistner. The court proceeded to overrule this “motion.”

The defense called a residential building contractor who testified that he had been requested by Mrs. Kistner to inspect her completed home. He listed various deficiencies: air leaks, cracks between the bath tub and the bathroom wall, cabinets that did not fit properly, poor room layout, and a damaged front door. He estimated it would cost between fifty and one hundred dollars to replace the door, under one hundred dollars to fix the cabinets, and that repair of the air leakage would be minimal. He admitted the materials used in the home were acceptable in the building trade and that the defects would be considered minor in the industry.

Elsie Kistner reiterated the deficiencies mentioned and denied she ever told Mr. Sears or anyone else that no more repairs were needed. She admitted she had decided where to locate the fireplace.

The “points” in appellants’ brief are as follows:

I
That the judgment against Francis Kist-ner is against the weight of the evidence and is clearly erroneous.
II
The court erred in overruling defendants’ motion for directed verdict at the close of plaintiff’s evidence for failure of proof of the contract.
III
The amount of the verdict is against the weight of the evidence.

The points on the face of it raise no proper issues for determination since they do not comply with Rule 84.04(d). They are abstract statements of law without any attempt to relate the statements to either the evidence or the actions of the trial court. The second point has no place in a court-tried case. The standard of review of a court-tried case under Rule 73.01 is established in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976):

“[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

Despite the deficiencies in the “points,” the argument portion of the brief permits understanding of defendants’ attack on the judgment, and the issues will be considered.

Defendants’ first point, that the judgment against Francis Kistner is against the weight of the evidence, is in the argument related to a claim that the evidence was only of a contract between Mrs. Kist-ner and plaintiff. It was not contested that only Mrs. Kistner signed the contract and received the cost analysis sheet. Both parties briefed the point on a theory of implied agency that is not in this case.

In his petition, plaintiff pleaded as follows:

“Comes now Robert Sears, d/b/a Sears Construction, and for his cause of action against the Defendants, states:
1. Plaintiff, a resident of Livingston County, Missouri, is engaged in the construction business in Livingston County, Missouri, and the Defendants are residents of Livingston County, Missouri.
2. On or about the 21st day of September, 1974, Plaintiff and Defendants entered into an agreement for the erection and finishing of a residential building on land owned by Defendants near Ludlow in Livingston County, Missouri.”

In their answer, defendants specifically admitted paragraphs 1 and 2 of plaintiff’s petition. This situation is similar to that in Freeman Contracting Co. v. Lefferdink, 419 S.W.2d 266 (Mo.App.1967), a suit for money judgment and for a mechanic’s lien for improvements to the home of defendants husband and wife. In that case, the contract was signed by the husband alone. As to the liability of the wife, the court held:

“In the instant case we need not assess the proof on this issue. The statements in the counterclaim that ‘defendants’ entered into this contract for which ‘defendants’ agreed to pay upon completion and the prayer that ‘defendants’ recover from plaintiff when read in context clearly constitutes an admission that Mr. Leffer-dink’s act in signing this contract was, by his agency, the act of his wife as well. Under such circumstances the plaintiff is not precluded as a matter of law from recovering a money judgment against both defendants and the lien could be impressed upon this property.” 419 S.W.2d at 273.

See also Kaufmann v. Krahling, 519 S.W.2d 29, 32 (Mo.App.1975).

The second point as explicated in the argument seems to be an attack on the theory of plaintiff’s petition. Defendants claim the only contract pleaded was the contract for the purchase of the precut home. The language of the petition is set forth above which pleaded the “ . . erection and finishing of a residential building . . . The defendants admitted this agreement, and no issue remained for determination but the breach and damages. The evidence was sufficient under Murphy v. Carrón, supra, to determine the terms of the contract, as the trial court did. The defendant raised no affirmative defense except a claim of non-performance.

For their last point, defendants argue that the verdict amount of $9,602.46 is against the weight of the evidence. Plaintiff’s evidence was that defendants still owed $10,351.37 on the contract. Defendants, by pleading and proof, attempted to show that nothing was owed due to the poor quality of the work. Certain defects of construction were shown, although defendants’ expert testified that the house was inhabitable, and that it would cost between fifty and one hundred dollars to replace a door and less than one hundred dollars to repair cabinets. The court gave judgment for $750 less than plaintiff claimed. Clearly, the evidence justified the trial court’s refusal to find that the defects in construction completely offset plaintiff’s claim. Murphy v. Carrón, supra. Defendants argue alternatively that the verdict is erroneous because the amounts proved as costs for remedying defects when subtracted from the amount claimed do not equal the amount awarded. The fallacy of this argument is obvious. “[A] party ordinarily cannot complain on the grounds that the judgment against him was not as large as it should have been.” Cargill Inc., Commodity Marketing Division v. Hale, 537 S.W.2d 667, 670 (Mo.App.1976); Swiss-American Importing Company v. Variety Food Products Company, 471 S.W.2d 688, 691 (Mo.App.1971).

The judgment is affirmed.

All concur.


text:
    In the Matter of the LITTLE CHARITON DRAINAGE DISTRICT, CHARITON COUNTY, Missouri.
    No. KCD 28522.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    William O’Donnell Lee, Phillip Caldwell Brown, Hunter, Chamier & Lee, Moberly, for appellant.

      George S. Thompson, Salisbury, for respondents Board of Supervisors of Little Chariton Drainage Dist.
    Michael L. Midyett, Midyett & Shea, Keytesville, for William H. Klingner d/b/a W. H. Klingner & Associates, Intervenor.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   Appellants here are petitioners seeking to dissolve a drainage district. The trial court entered an interlocutory order dissolving the district and ordering a financial statement to ascertain the need for an additional levy. The appeal purports to be from an order overruling the petitioners’ objections to the trial court’s expressed intention to levy a uniform tax under Section 242.140 RSMo 1969. No order directing a levy has been made. The appeal is dismissed; there is no final judgment.

The parties have filed a stipulated transcript on appeal in which the facts are undisputed. The Little Chariton Drainage District was incorporated in 1965, at which time a uniform tax of $1.00 per acre was levied pursuant to § 242.430 RSMo 1959, and the amount of $21,311.01 collected. The District entered into an agreement for engineering services with W. H. Klingner and Assoc., intervenors, in 1966. When the District was formed, it was contemplated that the United States Corps of Engineers would provide a substantial portion of the money required for construction of the proposed plan of reclamation. However, as a result of an environmental act passed by Congress in 1969, the Corps of Engineers abandoned its plan of reclamation of the District. At a District meeting in 1972, a majority of those present voted to go ahead with the work and on April 26, 1972, the District entered into a further agreement with W. H. Klingner and Assoc, for development and completion of a new plan of reclamation. At that time, the District was indebted to its engineers in the amount of $20,500 but had only about $3,000 in its treasury.

The engineers prepared a new plan of reclamation which was filed with the Circuit Court. The report of the Commissioners assessing damages and benefits from the plan showed benefits in excess of damages. Exceptions were filed by landowners, and petitions for dissolution of the District were filed. July 5, 1973, the court found that the petitioners for dissolution represented more than a majority of the acres of land in the District and ordered the District dissolved and a financial statement prepared so that the court could ascertain the need for the levy of a uniform tax to pay any obligations of the District. The financial statement filed September 21, 1973, showed the District’s assets to be $1,736.52 with liabilities of $69,189.15, the principal debt being $61,011.99 owed to W. H. Kling-ner & Assoc.

March 21,1974, the court apparently held a hearing on the objections of petitioners to any additional assessment against the land in the District to pay its indebtedness. The engineers had also filed a motion to intervene.

The exact language of the stipulation concerning this hearing is as follows:

“The Court held a hearing on May 21, 1974 on the objection of petitioners to any additional assessment against the land in the District to pay such indebtedness. The petitioners took the position that there was no authority under applicable statutes for such assessment. The Engineers were permitted to intervene and also be heard. Attached and marked as ‘Exhibit G’ is the Engineers’ Motion for Leave to Intervene. On July 28,1975 the Court entered its Order that the objections of the petitioners was overruled; a copy of the Court Order is attached and marked as ‘Exhibit H’.”

The court’s minute entry is:

“July 28, 1975: Motion to intervene by W. H. Klinger sustained. Objections to making of additional levy overruled.” (Exhibit H).

On January 27, 1976, this court entered an order permitting late filing of the notice of appeal under Rule 81.07. The petitioners had filed two days late because of mail delay in an earlier notice of appeal.

It is an axiomatic that a judgment or order is not final for the purpose of permitting an appeal unless it disposes of all the issues and all of the parties to a proceeding. Caudle v. Kelley, 545 S.W.2d 427 (Mo.App.1976). An appellate court has a duty to inquire sua sponte whether a final order or judgment has been issued. The judgment or order appealed from must be sufficiently fixed and certain in its terms to be susceptible of enforcement and be beyond the power of the trial court to change, modify, or amend after 30 days. In Re Marriage of Michalski, 542 S.W.2d 96 (Mo. App.1976). Obviously, the trial court here has not entered an order which is susceptible of enforcement, no order directing a levy has been made. Likewise, the trial court is not bound by its ruling on the objections to an order directing a specific levy or any levy.

The appeal is dismissed.

All concur.


text:
    Pierce M. LAWLESS, Sr. and Pauline T. Lawless, Appellants, v. SEARS, ROEBUCK AND COMPANY, Respondent.
    No. KCD 28531.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Thomas M. Sullivan, Eileen S. Sullivan, Kansas City, for appellants.
    John R. Gibson, John W. Cowden, Kansas City, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

At issue here is plaintiffs’ claim to an easement right of way over a portion of defendant’s land. Plaintiffs petitioned to establish such a right, to which defendant answered and counterclaimed for a declaration that they held the land in question free and clear of all easement. At the conclusion of plaintiffs’ evidence, the trial court entered judgment on defendant’s motion in its favor on both the petition and counterclaim. Plaintiffs appeal. We affirm.

Prior to 1953, a public alley ran south from 18th Street to 17th Street in the block in Kansas City bounded by Cleveland Avenue on the east and Askew on the west. Defendant owned all of the lots on the west side of the alley and the three northernmost lots on the east side. Plaintiff Pierce M. Lawless, Sr. and his then partner and their wives owned the balance of the lots on the east side of the alley. Plaintiff Pierce M. Lawless, Sr. and his partner operated the Lawless-Johnson Rug Company and made use of the alley in bringing merchandise into and out of their business location.

In 1953, all of the owners of these lots joined in a petition to vacate the alley., In connection with that action, they entered into an Easement Agreement For Joint Driveway dated December 15, 1953, in which the parties granted to each other mutual easements in the southern portion of the alleyway contiguous to the lots owned by the Lawless-Johnson partners and their wives. The agreement further provided that the strip described would be paved at defendant’s expense, with the cost of repairing and replacing the original pavement to be shared equally thereafter. Of particular significance, the agreement stated that “said driveway . . . shall be used for the sole purpose of ingress and egress, by way of 18th Street, to and from the respective properties herein described.” (Emphasis added).

The ordinance requested was enacted by the City on March 26,1954. Thereafter the Lawless-Johnson Company continued to use the former alleyway very much as theretofore. Its trucks made use of the alleyway from two to four times daily, sometimes using the 18th Street entrance and sometimes the 17th Street entrance. Defendant placed chain-links across both entrances which were kept locked at certain periods, but defendant supplied Lawless-Johnson with keys to those locks.

In about 1968, spurred by the inner-city riots, defendant changed the closure of the exits from chain-links to fences equipped with locked gates. No keys were supplied to Lawless-Johnson for the new locks, but defendant advised them that defendant’s employees would permit them access at anytime upon request. This led to a squabble at the 18th Street gate, which was was described by one of plaintiffs’ sons as follows:

“And so I told him that the property belonged to us and that were were supposed to be able to, you know, at all times have access. And so I went back and I called over and askéd for Mr. Getman. I can’t remember whether I actually talked to Mr. Getman or not, but anyway they called me back after this happened and apologized and told me that this would never happen again, and that they had informed the people in security downstairs that — apparently they weren’t aware of this, you know, that they were supposed to do this when we called, and so then they said it would never happen again. And since then they have opened it, like during the day if we needed to get in there they have opened it.”

No similar problem ever arose as to the 17th Street entrance. This apparently was due to the fact that the 17th Street entrance was rarely locked; but when that gate was locked, all that Lawless-Johnson would have to do would be to call defendant and ask permission to get through, and Lawless-Johnson “would expect that permission would freely be given to get out the 17th Street gate.”

Defendant has been using its property at this location primarily as a parking lot for its employees and also to some extent for customers. On some occasions the lot has been closed off so that it can be used for “tent sales.” When not otherwise used, defendant has also permitted general public use such as practice by the Ararat Shrine motorcycle brigade on Sundays. Since about 1964 or 1965, plaintiffs’ use of the alleyway has sharply decreased, to the point that they use it now only about once a month.

One of the Lawless sons testified that plaintiffs were not aware of defendant’s claim that the northern portion of its lot was free of any easement rights until recently when defendant filed application with Kansas City to vacate 17th Street. When plaintiffs did become aware of that position on the part of defendant, plaintiffs instituted the present lawsuit.

Plaintiffs assign as error the finding by the trial court that their user of the northern portion of the former alleyway was permissive rather than adverse, so as to defeat plaintiffs’ claim of an easement by prescription. They offer as their principal supporting argument the proposition that they showed more than ten years of open, continuous, visible and uninterrupted use of the alleyway, which they say gives rise to a presumption that their user was adverse and casts upon defendant the burden of offering evidence to the contrary.

The law does recognize a presumption generally as stated by plaintiffs, but that presumption has no application in this case. The presumption comes into play only when there is no evidence as to the origin of the user in question. Sears v. Norman, 543 S.W.2d 300 (Mo.App.1976); McIlroy v. Hamilton, 539 S.W.2d 669 (Mo.App.1976). Here, plaintiffs’ own evidence showed the origin and nature of the user and that evidence points convincingly to permissive rather than an adverse use. See, for example, Miller v. Archdekin, 497 S.W.2d 178 (Mo.1978), where the giving by the owner to the user of a key to the gate to the premises was treated as a significant factor to show that the use was permissive rather than adverse.

Plaintiffs eomplain that the trial court erred in reaching its conclusion concerning the character of the use by reason of having excluded from consideration a certain letter offered by plaintiffs as Exhibit No. 2. That letter was addressed by defendant to Lawless-Johnson on September 25, 1958, and opened the negotiations which led to the ultimate easement agreement dated December 15, 1953. The September letter did make a proposal which would have covered the entire area of the public alley, as opposed to the ultimate agreement dated December 15, 1953, which covered only the southern portion of that alley. The trial court refused to admit the letter in evidence on the ground that it violated the parol evidence rule.

Plaintiffs argue that Exhibit No. 2 did not violate that rule for the reason that it was not offered to alter or modify the December agreement, but rather was for the purpose of explaining plaintiffs’ understanding (even though mistaken) which gave rise to their belief that they were making a use of the entire former public alley under a claim of right. The trial court did not err in excluding Exhibit No. 2. Any understanding by the parties with respect to their rights necessarily is governed by their ultimate contract into which all of the prior negotiations have been merged. Walters v. Tucker, 281 S.W.2d 843, 847 (Mo.1955); Monia v. Oberle, 530 S.W.2d 452, 457 (Mo.App.1975). They cannot be heard as saying they relied on a proposal which was later superseded by a written agreement which integrated all previous negotiations.

Plaintiffs also assign as error the finding by the trial court that their use of the property in question was not “exclusive.” They deny that exclusivity is an element to be established in order to obtain a prescriptive right. Plaintiffs are correct to the extent that their user need not have been preemptive of use by everyone else. On the other hand, their use would have to meet the requirement of being “exclusive” in the sense that their claim of right would have to be particular to themselves as opposed to arising simply as a member of the general public. As sometimes stated, “[t]he adverse user must be exclusive in the sense that the right does not depend for its enjoyment on similar rights in others.” Cramer v. Jenkins, 399 S.W.2d 15 (Mo.1966); 28 C.J.S. Easements § 15, p. 658. In order to create an independent prescriptive right in such a case, “the individual user must perform some áct to the knowledge of the servient owner clearly indicating his individual claim of right.” Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, 851 (1951). The trial court therefore did not err in treating exclusivity as an element which had to be proved by plaintiffs in order to make a case.

Finding no error, the judgment is affirmed.

All concur.


text:
    REALTY MART, INC., Appellant, v. O. Dean DURHAM et al., Respondents.
    No. KCD 28539.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Lester E. Adams, Kansas City, for appellant.
    Graham, Paden, Welch, Martin & Albano, Michael J. Albano, Independence, for respondents.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

The issue, in this court-tried case, is whether appellant realtor is entitled to a commission upon a sale between the parties to a written contract of property consummated after the written contract had by its terms expired.

On March 14, 1973, assisted by appellant, the Durhams and the Hooks entered into a written contract, in which appellant was named agent for the Durhams, to sell the Durham property, Lot 37, Cambridge Heights in Lee’s Summit, Missouri, to the Hooks. The contract was expressly contingent upon the Hooks selling their property at 701 North Independence in Lee’s Summit on or before June 30,1973 (according to Mr. Hook the money from the sale of the Independence property was to provide the down payment on the Cambridge property); was subject to the Hooks obtaining a $22,500.00 loan for a period of 30 years at the prevailing rate of interest; and required a $400.00 “earnest money” deposit. Mrs. Hook, on the date of the contract, issued a $400.00 check to appellant, which check was deposited by it in the Raytown Bank on March 26, 1974, but was charged back to appellant on April 1, 1974, “payment stopped.” It does not appear when payment on the deposit check was stopped at the Hooks’ bank. Appellant had a 90-day exclusive listing agreement to sell the Hooks’ property but was unsuccessful in his attempts to sell it, and it was eventually sold by someone else in January, 1974. The Hooks’ commitment for a loan expired before which appellant attempted to aid the parties in closing their contract, but “their response was very clear to me (Mr. Thomas) that they didn’t need me.”

Mr. Hook testified that he rented the Durham property November 1,1973, it having not theretofore been ready to be lived in. In September or October, 1973, he, being an electrician, put the wiring in the house with the agreement that if he did not eventually purchase it the electrical work would be forfeited. Mr. Hook did not contact appellant after the exclusive listing expired on his property or for assistance in closing the original contract with the Durhams. He was, however, in constant contact with Durhams after the original contract was signed.

The contract here is clearly conditional— that the Hooks’ property be sold by June 30, 1973, and the evidence showed that it was not sold within that time. The contract thus was one of fixed duration — to June 30, 1973. Weber v. Larkin, 380 S.W.2d 956 (Mo.App.1964), controls. There the contract was contingent upon purchasers procuring a commitment for an FHA loan by November 30,1960, which was never accomplished. The court, in reversing a judgment for the broker-realtor, said, “[T]here was no evidence in the case that during the life of the contract in question, plaintiff ever produced a purchaser who was ready, willing and able to perform according to the conditions of the contract, * * See also Taussig, Day & Co. v. Poleman, 360 Mo. 470, 228 S.W.2d 722 (1950), quoting Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453, 458 (1932); Boyd v. Margolin, 421 S.W.2d 761, 766[2—7] (Mo.1967); Smith v. Allgier, 234 Mo.App. 392, 135 S.W.2d 43, 50, 51 (1939).

The judgment is supported by substantial evidence; it is not against the weight of the evidence; and it does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment is affirmed.


author: SWOFFORD, Presiding Judge.

text:
    Arthur W. RICHARDSON, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28548.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Lawrence F. Gepford, Albert A. Riederer, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This appeal involves a proceeding under Rule 27.26. The appellant, who was 15 years of age at the time of the underlying offense of homicide and after waiver of jurisdiction by the Juvenile Court, was tried before a jury in the Circuit Court under an indictment charging First Degree Murder. The jury returned a verdict finding him guilty of Second Degree Murder and assessed his punishment at 35 years. Upon appeal, this judgment was affirmed. State v. Richardson, 495 S.W.2d 435 (Mo.banc 1973).

Thereafter the appellant filed this proceeding under Rule 27.26 wherein he sought to have the conviction and resultant sentence vacated. He was afforded an eviden-tiary hearing and was present and represented by counsel. He declined to offer any additional evidence but stated he would stand upon the transcripts of the juvenile proceedings and the transcript on appeal of the criminal conviction. The court below made findings of fact and conclusions of law and denied appellant relief. This appeal followed.

The appellant’s first point relied on is that the trial court erred in trying him under the first degree murder indictment because he “was certified from the juvenile Court on a charge of second degree murder.” The basis for this position is that the petition filed in the juvenile court charged that the appellant did on October 5, 1970, shoot one Herbert Andreasen “feloniously, wilfully, on purpose and of his malice aforethought”, and that this charge, if leveled against an adult, would be that of the felony of second degree murder, in that it omitted the classical allegation of premeditation. Further, appellant argues that, since the Juvenile Court’s order dismissing the proceedings decreed “that said child may be prosecuted for the offense alleged in said petition under the general laws of the State of Missouri”,- the appellant could not thereafter be indicted for the greater crime of first degree murder.

This argument is not valid and cannot be upheld, for several reasons.

Initially, it should be noted that the basic purpose of a petition such as involved here in the Juvenile Court is to state facts which bring the child within the jurisdiction of that court. Section 211.091 RSMo 1969. Jurisdiction is specifically conferred where the petition alleges that a child, under 17 years of age, has violated state law. Section 211.031(2) RSMo 1969. The allegations of the petition need not be couched in the technical terms required of an indictment or information. State ex rel. D_ V_ v. Cook, 495 S.W.2d 127, 129[3] (Mo.App.1973). The allegations in the petition here involved clearly conferred initial, exclusive jurisdiction in the Juvenile Court.

An offense was charged which would constitute a felony if committed by an adult and thus justified the subsequent motion by the juvenile officer that the appellant be prosecuted under the general criminal law and by such motion, the discretion of the juvenile judge was invoked to make such an order upon a showing that the appellant was not a proper subject to be dealt with under the Juvenile Code. Section 211.071 RSMo 1969.

The Juvenile Court, in the case at bar, did hold a hearing at which the appellant was present and represented by counsel. Evidence and arguments were heard and reports of investigations received. The court found that the appellant was not a proper subject to be dealt with under the Juvenile Code:

“ * * * for the reasons that he has been referred to this court on several prior occasions for robbery, attempted rape, shoplifting, truancy, creating a public disturbance, auto theft, traffic violations and homicide. * * * He has demonstrated by his behavior that he cannot adjust to society and that he is beyond further rehabilitative care, treatment and services of this court; that every possible means and resource available under the Juvenile Code to rehabilitate said child has been exhausted; that he would not benefit from any further care, treatment, or services wavailable (sic) under the Juvenile Code.”

The court thereupon dismissed the petition and decreed that the appellant could be tried for the homicide under the general criminal law. The whole premise of appellant’s first point is based upon a misconception of the effect of this order. It is simply a waiver by the Juvenile Court of its initial jurisdiction over the child; it does not in any sense mandate jurisdiction upon the Circuit Court; it simply makes the juvenile subject to prosecution in the same manner as others; it leaves such future prosecution to the judgment of the prosecutor or grand jury on the criminal level; and, it divorces the Juvenile Court from all further connection with the process by waiver. State v. Ford, 487 S.W.2d 1 (Mo.1972). In Ford, the court thus stated (and clarified) the court proceedings at that level, l.c. 5[3]:

“ ⅜ * * Although the action of a juvenile court in dismissing a petition under the provisions of § 211.071 V.A.M.S. has been frequently characterized as ‘certifying the juvenile for trial as an adult’, or ‘ordering the juvenile to be tried as an adult’ the characterizations are incorrect. All that the juvenile court can do under § 211.071 V.A.M.S. is to dismiss the petition which has the effect of relinquishing juvenile court jurisdiction over the juvenile. When this jurisdiction is relinquished the juvenile is subject to prosecution in the same manner that others may be prosecuted. Whether or not the prosecution is instituted however, is matter over which the prosecuting attorney or the grand jury has jurisdiction, but the court has no jurisdiction to institute the prosecution or to order that a person, against whom no indictment or information has been issued, to be tried at all.

Further, it was incumbent on the appellant to raise any defect or objection, constitutional or otherwise, which might obtain to the waiver proceedings in the Juvenile Court, when he went to trial on the indictment on the criminal side by motion to quash the indictment or motion to remand for further proceedings in the Juvenile Court. Otherwise, such were waived. Jefferson v. State, 442 S.W.2d 6, 12[7] (Mo.1969); State v. LePage, 536 S.W.2d 834, 836[2] (Mo.App.1976).

In the case at bar, at the very outset of the trial of the underlying criminal charge, in response to direct inquiry, the appellant’s counsel stated that no objection would be advanced as to the waiver of jurisdiction (certification) of the case by the Juvenile Court. Such a waiver of objection by counsel was and continues to be binding upon appellant. Ford v. State, 534 S.W.2d 111, 112-114[l-3] (Mo.App.1976).

Finally, the jury convicted the appellant of murder in the second degree, the crime which he now asserts was the only one for which he could be charged and made to stand trial under the Juvenile Court’s waiver order and which offense he concedes was within the court’s jurisdiction. Appellant’s first point (I) is ruled against him.

His second and third points in broad, general, vague and sweeping terms challenge the waiver proceedings in the Juvenile Court because they are claimed to be violative of appellant’s constitutional rights and did not meet the statutory standards for waiver and constituted an abuse of discretion. These points or assignments of error were not preserved by objection or motion at the trial and were, therefore, waived. Jefferson v. State, supra; State v. LePage, supra; Ford v. State, supra. Neither do these points comply with Rule 84.-04(d).

In any event, the gravamen of the argument of appellant on both points raises no question of merit. He attempts to challenge both the evidence at the waiver hearing and the order of waiver upon the ground that the first disclosed and the second was based upon a showing of prior accusations and referrals or contacts with the juvenile process which were never fully processed or proved. He seeks to apply to these proceedings the criminal law rule that prior charges, complaints, and arrests not resulting in convictions are inadmissible and that the Juvenile Court therefore abused its discretion in affording his history in this area any consideration, and thereby denied him any right of confrontation and other constitutional safeguards.

Here again he misconceives the nature of the waiver proceedings. Such were not and did not purport to be an evidentiary proceeding to determine his guilt or innocence of the acts previously resulting in his contacts with the juvenile system nor of the homicide in the underlying case here involved. Under mandate of the law and the spirit of parens patriae the only purpose of such proceedings was to determine his suitability for further attempts at care and treatment under the Juvenile Code. Section 211.071 RSMo 1969. Prior contacts with law enforcement agencies, seriousness of the offense, social investigation, mental and physical condition, and many other factors may bear upon this ultimate decision as to waiver and are properly considered. State v. Kemper, 535 S.W.2d 241, 247-248[7, 8, 9] (Mo.App.1975); Kent v. United States, 383 U.S. 541, 567, 86 S.Ct. 1045,16 L.Ed.2d 84 (1966); State v. Reagan, 427 S.W.2d 371, 377[4] (Mo.banc 1968).

The evidence considered in this case on the issue of waiver of jurisdiction by the Juvenile Court was clearly within the guidelines recognized in the above-cited authorities. No violation of the appellant’s constitutional rights appears, the Juvenile Court did not abuse its discretion and the order of waiver permitted jurisdiction to lodge in the Circuit Court for the criminal prosecution. Appellant’s Points II and III are ruled against him.

Appellant’s Points IY, Y and VI deal with alleged error in refusal to suppress lineup and in-court identification, violation of Miranda, and failure to give a manslaughter instruction. All of these points were raised and decided on direct appeal in State v. Richardson, 495 S.W.2d 435 (Mo.banc 1973) and are, therefore, not now cognizable under this Rule 27.26 proceeding. Mooring v. State, 501 S.W.2d 7, 11[7] (Mo.1973); Shepherd v. State, 529 S.W.2d 943, 946[6] (Mo.App.1975); Weaver v. State, 520 S.W.2d 640, 643[2] (Mo.App.1975).

Judgment affirmed.

All concur.


text:
    Jerry L. RAINEY and Janet R. Rainey, Plaintiffs-Respondents, v. B. Arthur FOLAND and Deva L. Foland, Defendants-Appellants.
    No. KCD28595.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Bob F. Griffin, Cameron, Griffin, Lucken-bill & Griffin, for defendants-appellants.
    Richard G. Poland, Cameron, for plaintiffs-respondents.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendants appeal from a judgment in a court-tried case granting plaintiffs reformation of a warranty deed. The plaintiffs’ petition sought reformation on the ground of mutual mistake. The dispositive issue is whether there is substantial evidence of mutual mistake. The judgment is reversed.

On April 27, 1974, Doctor Jerry Rainey and his wife, plaintiffs, entered into a real estate contract to purchase land in Cameron, Missouri, from Mr. and Mrs. Arthur Foland, the defendants. Dr. Rainey had previously contacted Jack Clark, a local realtor, about purchasing property for a veterinary clinic. In response to this inquiry, the realtor asked the Folands if they would sell the south end of some property which they owned but which was not listed for sale. Mr. Foland initially told the realtor he would sell the property for $20,000 but in subsequent discussions finally agreed to sell for $10,000 one-half the width of the originally discussed plot.

Beginning at the southeast corner of sellers’ property on the southeast corner of State Route BB a.nd Orange Street; thence west, one-half the distance of sellers’ property along Route BB, thence north three hundred fifty feet; thence east to Orange Street, thence south along Orange Street to point of beginning.

The above described property is part of Lot 14 in the Sunnyside addition in Cameron, Missouri. Lot 14 is bounded on the north by Ford Street, on the east by Orange Avenue, and on the south by State Highway BB.

The Raineys and the Folands never had direct contact regarding the sale, dealing only through the realtor. Mr. Foland testified that the realtor inquired about the sale of the south portion of Lot 14 extending 350 feet in length. Foland’s understanding was that the northern boundary of the tract to be sold would be approximately 90 feet south of an east-west fence on his property. When asked by Mr. Foland where the north-south measurement would start, the realtor replied wherever the abstract calls for. Mr. Foland thought this would be State Highway BB, shown on the plat of Sunnyside Addition to be 442 feet south of the east-west fence. It is this 90 foot area on the north which is the center of dispute between the parties.

In May 1974, after the parties had signed the contract the preceding April, the realtor asked licensed surveyor David Mallen to survey the property. This was at the request of Dr. Rainey. The original survey shows that the north-south dimension along the western boundary is three hundred fifty feet measured from the north right-of-way of State Route BB. The surveyor testified that it is eighty feet from the center of State Route BB to the northern edge of the right-of-way line running along State Route BB. He testified that in his opinion the provision of the contract calling for a beginning at the southeast corner of sellers’ property was controlling, and the reference to the southeast corner of State Highway BB and Orange Street was just a general description of the location of the property. The southeast corner of sellers’ property was not the southeast corner of State Highway BB and Orange Street because that was part of the State Highway right-of-way. When he first received the description for the survey from the realtor, the surveyor notified the realtor that there was a problem as to where the southeast corner was to be located because of the State Highway right-of-way.

The surveyor placed stakes on the property in accordance with the original survey. The northern stakes were placed in line with the fence running east to west across the property. The survey is dated July 7, 1974. The deed was dated on July 26,1974. Foland and the realtor came to see the surveyor after the stakes were placed and told him that those stakes indicating the northern boundary of the property which the Raineys were to purchase were too far north. The surveyor testified that either he, Foland or the realtor moved the stakes about 90 feet south of where he had placed them. The realtor had told him that the north boundary was supposed to be approximately 90 feet farther south based on a southern boundary different than the north right-of-way line of State Highway BB. Mallen stated that he told the realtor that things shouldn’t have gotten into such a mess and that he thought the realtor was telling Rainey one thing and Foland another.

Closing occurred at the realtor’s office on July 26, 1974, at which time the Folands signed and delivered the deed to the realtor who then gave them Dr. Rainey’s check for the purchase price. The deed had been prepared by Dr. Rainey’s attorney. Dr. Rainey testified that it was not until after closing that he saw that the stakes had been moved. Prior to closing, the Folands had refused to sign two warranty deeds presented by the realtor because those deeds described the 350 foot north-south dimension of the property from a point 87.5 feet north of State Highway BB which is the northern edge of the north right-of-way line. The deed which the Folands finally signed and delivered measured the 350 foot north-south dimension from the south line of the quarter section, not from the right-of-way line 88.3 feet to the north. The description also provided that the tract was subject to the rights-of-way of Orange Street on the east and State Highway BB on the south, as well as easements of record. The surveyor testified that the deed provided for a northern boundary 88.3 feet south of that provided by his original survey.

In August, 1974, the plaintiffs’ attorney asked the surveyor to resurvey the property. The second survey was based on a description provided by the plaintiffs’ attorney. The second survey was completed on March 1,1975. The second survey coincides with the original survey. The three hundred fifty foot north-south dimension of the property along the western border of the property began at a point on the north right-of-way line along State Route BB. After defendants refused to reform the deed to conform to that survey, the plaintiffs brought this action. The trial court expressly found that the execution of the deed as delivered by defendants was fraudulent.

Defendants argue and plaintiffs concede that the trial court erred in granting relief on the basis of fraud because fraud was neither pleaded nor proved.

Defendants assert there was no substantial evidence of mutual mistake, the only pleaded theory, and that the judgment should be reversed. Plaintiffs meet that argument by asserting the evidence is sufficient to support a finding of mutual mistake. Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). The inquiry must first be the nature of a mutual mistake which justifies reformation.

Reformation is a form of equitable relief which allows parties to a contract to conform an instrument to what the parties intended. Feeler v. Gholson, 71 S.W.2d 727, 728 (Mo.1934). By its very nature, this form of equitable relief assumes a prior valid contract — a meeting of the minds. Frederich v. Union Electric Light & Power Co., 336 Mo. 1038, 82 S.W.2d 79, 86 (1935). Likewise, reformation is not a proper remedy where the instrument sought to be reformed does accurately reflect the agreement of the parties. Feeler, supra.

The principal ground for reformation is a mutual mistake; both parties have done what neither intended to do. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973); Zahner v. Klump, 292 S.W.2d 585 (Mo.1956); Allen v. Smith, 375 S.W.2d 374, 879 (Mo.App.1964). Mutual mistake must be shown by clear and convincing evidence. Niemeyer v. Stephens, 515 S.W.2d 65 (Mo.App.1974). Reformation is also available where the fraud of one party has caused the mistake of another party, thereby inducing the one to receive less than he bargained for. Hoxsey Hotel Co. v. Farm & Home Savings & Loan Ass’n, 349 Mo. 880, 163 S.W.2d 766, 771 (1942); Citizens Bank of Festus v. Frazier, 352 Mo. 367, 177 S.W.2d 477, 482 (1944); Strothcamp v. Sandy Ford Ranch, Inc., 440 S.W.2d 193, 195 (Mo.App.1969). However, when there is only evidence of a unilateral mistake or a mutual mistake going to the very subject matter of the contract, there has been no meeting of the minds and therefore rescission or cancellation, rather than reformation, is the proper remedy. Frederich, supra, 82 S.W.2d at 86; Miller v. Haberman, 359 Mo. 1012, 224 S.W.2d 1002, 1006 (1949).

Considering the evidence in light of these principles, there is no substantial evidence to support a finding of mutual mists ke. As noted above, plaintiffs conceded that actionable fraud was neither pleaded nor proved. Thus, plaintiffs must rely upon mutual mistake as their sole ground for relief. The clear preponderance of the evidence is that at the time of the signing and transfer of the deed, the mistake, if any, was only unilateral, defendants having twice refused to sign a deed containing a description which would conform to that now requested by plaintiffs.

It appears from the evidence that at the signing of the contract, both parties were mistaken as to the southern boundary of the tract to be sold. The contract description included property owned by the State Highway Department as a right-of-way. This constitutes a mistake as to the subject matter of the contract which might have afforded plaintiffs relief of rescission. In fact, this mistake did become known to plaintiffs through their agent, the realtor, when he was told by the surveyor that there was a problem as to the southerly boundary because of the existence of the highway right-of-way. The realtor had previously been told by defendants that they would not sell a northerly portion of their property approximately 90 feet in length which was included in the surveyor’s original survey. In accordance with this decision, they complained about the location of the surveyor’s stakes, and they rejected two warranty deeds offered by the realtor containing this disputed portion in the description of property to be sold.

The knowledge of the realtor as to a boundary problem is imputed to his principals, plaintiffs. Luker v. Moffett, 327 Mo. 929, 38 S.W.2d 1037 (1931). The evidence is uncontroverted that in light of his knowledge, the realtor proceeded to closing and accepted a deed describing a tract which he knew might not be what the Rai-neys intended to buy but which the Folands clearly intended to sell. Plaintiffs seek only the remedy of reformation of the deed, and it is clear that there was no mutual mistake as to that instrument. In proceeding with the transaction in the face of a boundary dispute (admittedly plaintiffs themselves may not actually have known of the problem until after closing, but it is undisputed that the realtor, their agent, did), plaintiffs forfeited any claim to equitable relief against defendants. Equity will not aid those who make contracts or other dispositions as to boundary lines knowing that they might be mistaken, especially where the true location thereof is available by survey. Croy v. Zalma Reorganized School District R-V of Bollinger County, 434 S.W.2d 517, 521 (Mo.1968). Plaintiffs’ remedy, if any, is against their agent.

The cause is reversed with directions to enter a judgment for defendants.

All concur.