author: PRITCHARD, Chief Judge.

text:
    GALLAHER-SMITH-FEUTZ REALTY, INC., Appellant, v. CIRCLE Z FARM, INC., et al., Respondents.
    No. KCD 27830.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      Edward D. Hodge, Jerome W. Seigfreid, Mexico, for appellant; Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, of counsel.
    Robert Hines, Richard C. Thomas, Columbia, for respondents; Bear, Hines & Thomas, Columbia, of counsel.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

This is an action to recover a 5% commission for the sale of 913 acres of land, based upon an alleged exclusive sales contract as per Count II of appellant’s petition, as submitted to the jury in Instruction No. 4 against respondent, Robert W. Schulze. One issue is whether Instruction No. 5 properly hypothesized Schulze’s defense that Feutz, acting for appellant, knew that there was a better offer for the property, which he failed to communicate to Schulze, before he had procured a buyer who was ready, willing and able to purchase the property on the terms of the seller, Schulze.

The facts tending to support Schulze’s theory, which he was entitled to submit to the jury if his evidence justified it [Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 777[1] (1949); Robertson v. Grotheer, 521 S.W.2d 452, 457 (Mo.App.1975)] are these: On January 15, 1974, Schulze signed an exclusive listing agreement with appellant realtor for two months ending March 15, 1974, “and thereafter until terminated by me upon sixty days prior notice in writing.” The 913 acres had been conveyed to respondent corporation which was owned by Schulze, his wife, and his son. Feutz advertised the farm in newspapers and magazines, and before securing a purchaser he invited Maxine Blackmore of Blackmore Realty to contact him if she had a party interested in purchasing the farm. The original listing price was $1,000 per acre, but, according to Feutz, the price was reduced to $800 an acre for unirrigated land and $1,000 an acre for irrigated land some 30 to 40 days after the listing. An offer of one Pilla to buy the farm for $800 an acre did not culminate in a contract, after which Henry Finck told Feutz he would buy the farm at that price. Feutz, on March 13, 1974, wrote Schulze and advised him, “Also, Henry Finck who wanted to rent the farm from Mr. Pilla, has decided he would like to buy it, is willing to give the price, if we could work out the financing for him. I think we can do this as he owns around 700 acres of good land southwest of Mexico.” Feutz, Finck and Schulze met on March 14, 1974, to discuss the sale at which meeting Finck said he wanted to take another look at the farm. The three met again on March 15,1974, and Schulze informed Feutz and Finck that his attorney, Baker, had told him that a greater tax advantage could be gotten by selling the stock of the corporation rather than the land itself (which would be conveyed by the corporation). Finck indicated that would be agreeable, and that evening Feutz brought Schulze Finck’s check for $25,000 “earnest money”, which check was made payable to Gallaher, Smith & Feutz, which check was endorsed “FOR DEPOSIT IN ESCROW ACCOUNT Circle ‘Z’ Ranch Inc. By (signed) Robert W. Schulze and (signed) Frances B. Schulze." Feutz testified that the check was never deposited, but it was held by appellant in its safe. Finck did not then have funds in his checking account to cover the check.

Sometime after March 15, 1974, Schulze’s attorney prepared a contract of sale whereby Schulze and his wife were to sell the stock of Circle “Z” to Finck and his wife for $730,000. Finck took this proposed instrument to his attorney for review. Finck was not agreeable to the provision for prepayment of $35,000 on a first deed of trust note on the property, and he made notations on the back of the proposed contract, which Feutz requested Schulze’s attorney to incorporate in a change, and substitute the last page, signed by Schulze and his wife which “would save Bob having to go to the trouble of getting her signature again.” Apparently, Schulze and his wife were separated.

On April 5, 1974, Feutz and Finck presented to Schulze a proposed contract, signed by the Fincks, but which provided not for a sale of corporate stock but a sale of the farm by the corporation. Schulze said he was in favor of the contract and would try to get the corporation to approve it, but the next day, with all three shareholders and the board of directors present, it was voted two to one not to sell.

On the afternoon of March 15, 1974, Feutz showed Maxine Blackmore the $25,-000 “earnest money” check from Finck and told her the farm was sold but that maybe her buyer could still get it. During all of the time after March 15 that negotiations were going on between Finck and the Schulzes, Feutz was negotiating a proposed contract for Finck to sell the farm to Mrs. Blackmore’s client, Jacqueline Behlman, for $836,000. Jacqueline subsequently bought the farm directly from Circle “Z” Ranch at the price. Mrs. Blackmore was to be paid a $40,000 commission, and she was paid one-half of it, and the other one-half was placed in escrow upon her refusal to pay Feutz a part of the commission.

About the third week in February, Mrs. Blackmore contacted Feutz to get more information about the farm, and told him she had a man interested in it. That man was Dennis Behlman who was conducting negotiations for his sister, Jacqueline. On March 14, 1974, Dennis called Mrs. Black-more to see if the farm was still available. About 5:00 or 6:00 that evening, she called Feutz and told him that she had an interested buyer for the full $836,000 and that a check was being sent by Dennis which was expected to arrive that evening. The check was in Mrs. Blackmore’s possession later that evening. The next day (March 15, 1974), she called Feutz at his home about 8:00 a.m., and told him she had a check and asked if she could meet him at Schulze’s home to make a contract. Feutz told her “No”, that he was meeting a man there at 10:00.

At no time between March 14, 1974, and April 6,1974, did Feutz convey the Behlman offer of purchase for $836,000 to Schulze or other members of his family. Schulze first learned of the offer on April 6, 1974, from Dennis Behlman after Feutz had told Mrs. Blackmore that the farm was no longer for sale. Appellant, by its Count II of the petition, claimed a commission on the Behl-man purchase on the theory that its exclusive sale contract continued to that subsequent sale.

Schulze’s defense was tendered to the jury in Instruction No. 5:

“Your verdict must be for the defendant Robert Schulze if you believe:
First, plaintiff knew of the existence of an offer to purchase the real property mentioned in evidence for the sum of $836,000 at the time plaintiff was attempting to get defendant to enter into a contract with Henry Finck, and
Second, the offer of $836,000 was more than the offer of Henry Finck, and
Third, plaintiff failed to tell defendant of the $836,000 offer, and
Fourth, plaintiff’s failure to tell defendant was material to the sale of the real property.”

In its Point I, appellant contends that Instruction No. 5 erroneously failed to limit the time period in which it (through Feutz) was obligated to advise its client of an offer to purchase, thus giving the jury a roving commission, permitting speculation as to the issue. The contention is premised upon the further contention that there was established a valid oral contract of sale as of March 15, 1974, because at that time every essential element of the contract had been agreed upon. It is argued that at no time during the trial was there any objection to evidence of the oral contract, and thus there was a waiver of the right of respondent to assert the defense of the Statute of Frauds. Appellant correctly says, citing Heath v. Beck, 231 S.W. 657, 659[5, 6] (Mo.App.1921); and Miller v. Harper, 63 Mo.App. 293, 296, 297 (1895), that because there was no objection to oral testimony, the statute of frauds was waived. See also Barr v. Snyder, 294 S.W.2d 4, 10[9-13] (Mo.1956). There is no necessity to consider further the contention of waiver of the defense of the statute of frauds, because as hereinafter developed, there was never any valid binding contract of sale, written or oral, between Finck and respondent. Appellant says further that March 15, 1974, was the critical date in determining when appellant’s obligation to relay offers to respondent ceased. Under the evidence above set forth, it was not March 15, but March 14, 1974, when Feutz received the information from Mrs. Blackmore that she had a purchaser who would pay $836,-000 for the farm. At that time, clearly, Finck and Schulze had come to no meeting of minds as to sale and purchase of the farm even orally. Finck was not then a willing purchaser — he wanted to take another look at the farm. Although the law is that a broker is entitled to a commission when the negotiations which he is authorized to make are concluded or are conducted to a stage where as to all material matters or essential terms there is a meeting of the minds between the principal and the purchaser produced by the customer [12 C.J.S. Brokers § 84, p. 184], the negotiations had not been concluded when Feutz received information of the better offer on March 14, 1974. For further authority as to a broker’s fulfillment of his contract with a seller in producing a ready, willing and able purchaser, see 12 C.J.S. Brokers § 85, p. 189; Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, 747[2] (1941); Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 913[1] (1947); and also Dolan v. Ramacciotti, 462 S.W.2d 812, 815[2 — 5] (Mo.banc 1970). Although somewhat less clearly, it is evident that negotiations beginning on March 15, 1974, which resulted in several preparations of a proposed written contract, never ripened into a binding contract, considering the evidence that Finck was not agreeable to the prepayment of $35,000 on the deed of trust note, and the sellers never did agree to a conveyance of land by the corporation rather than a sale of its corporate stock— which were certainly material matters to be resolved, and which under the evidence continued to be negotiated up to April 5, 1974, when all further negotiations ceased.

The rule of law requiring appellant to disclose facts within his knowledge which might materially affect his principal’s action in making a sale is contained in 12 C.J.S. Brokers § 69, p. 160, where it is said, “To be entitled to a commission, a broker must disclose to his principal all facts within his knowledge which are material to the matter in which he is employed and which might influence the principal’s action; and where he intentionally conceals, withholds, or fails to disclose such facts, he loses his right to compensation, * * See also, Klein v. Terminal R. Ass’n of St. Louis, 268 S.W. 660, 664[4 — 7] (Mo.App.1925); King v. Pruitt, 365 Mo. 823, 288 S.W.2d 923, 925[1, 2] (Mo.banc 1956); Herb Tillman Co. v. Sissel, 348 S.W.2d 819, 824[4-7] (Mo.App. 1961); Sunset Acres Motel, Inc. v. Jacobs, 336 S.W .2d 473, 482[12-16] (Mo.1960). More factually and specifically in point is the case of Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201 (Mo.App. 1951), where defendant real estate broker induced his customer to sell realty for $3750, when he had already sold or contracted to sell it to a purchaser for $4,100, it being held, loe. cit. 237 S.W.2d 206[7-9], that the broker was under an absolute obligation to reveal that fact. It was held in Dittmeier that this failure to disclose justified the Missouri Real Estate Commission in suspending the license of the broker for six months. Here, not only was there a failure to disclose the fact of the better offer, but the evidence shows that during subsequent negotiations, Feutz was endeavoring to negotiate a further sale by Finck to Jacqueline from whom, through Mrs. Blackmore, the better offer had originally come. The jury was entitled to take this latter fact into consideration concerning Feutz’s breach of his fiduciary obligation to Schulze.

In any event, the duty to disclose the Behlman better offer arose on March 14, 1974, and continued throughout all subsequent negotiations between Finck and Schulze. Feutz never did inform Schulze of the better offer. Instruction 5 was not erroneous in failing to limit the time in which appellant was obligated to advise its client more specifically than the time in which it was attempting to get respondent to enter into the Finck contract. The time from March 14, 1974, to April 5, 1974, is supported by the evidence of continued negotiation. Point I is overruled.

Instruction No. 5 is attacked in Point II because it failed to define the word “material”. The Dittmeier case, supra, quoting Restatement of Agency, Section 390, Comment A, defined a fact as being material if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into the particular transaction on the specified terms. Translated here, the definition means that the seller would not have considered the Finck contract at all if he had known of the offer of purchase in the greater amount. “Material” in that sense can be only a term of common usage and understanding. Compare Moore v. McCutchen, 190 S.W. 350, 352[9] (Mo.App.1916). Furthermore, if appellant believed the word should have been defined, it should have requested an instruction on it. Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014, 1022[6] (1930). Point II is overruled.

By Point III, appellant says that Instruction No. 5 related only to its (unsub-mitted) Count I which was for the alleged original commission due on the $730,000 sale to Finck, and was erroneous because it raised a defense to Count II, which submitted appellant’s recovery on the theory of its exclusive listing contract, when the property was finally sold to a third party while the listing was still in force. The Dittmeier case, supra, and others, supra, on the general duty to disclose material facts, apply also to a claimed exclusive listing contract. The compensation is lost in either type of contract, if there is a failure to disclose a fact, before production of a ready, willing and able purchaser, which would cause the seller not to enter into a contract. Point III is overruled.

Appellant contends by Point IV that Instruction No. 5 is erroneous because it failed to require a finding of bad faith on its part in not revealing the better offer to purchase to respondent. The cases and authority, supra, do not speak solely of bad faith and fraudulent conduct on the part of a broker which would cause a loss of compensation. The mere failure to disclose a better offer of purchase to the principal may be a basis for a finding of a breach of duty and thus a denial of compensation. 12 C.J.S. Brokers § 69, pp. 159, 160; 12 Am. Jur.2d, Brokers, §§ 89, 90, pp. 842, 843; Anno., 7 A.L.R.3d 693. Negligence in failing to disclose a better offer may also be a defense to an action for compensation. 12 C.J.S. Brokers § 73, p. 164; and Anno., 94 A.L.R.2d 468, 478, § 8. Point IV is overruled.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    Robert M. CARY, Plaintiff-Appellant, v. Vernon A. BELL, Defendant-Respondent, and William Crouse, Defendant.
    No. KCD 27849.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      C. B. Fitzgerald, Warrensburg, for plaintiff-appellant.
    James Borthwick, Larry E. Skaer, Kansas City, for defendant-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries sustained in an automobile collision. Robert M. Cary, a passenger in an automobile driven by Vernon A. Bell, was injured in a collision between Bell’s automobile and one driven by William Crouse. Cary brought suit against Bell and Crouse. A jury returned a verdict in favor of Cary and against Crouse for $5,000.00. The verdict was in favor of defendant Bell and against plaintiff Cary. Cary has appealed from the judgment entered on the verdict in favor of Bell.

On October 18, 1970, Cary was a passenger in Bell’s automobile, going west on U.S. Route 50 in Johnson County. At the intersection of Missouri Route 131 and U.S. 50, Crouse, driving north on Route 131, did not yield at the “Yield” sign on Route 131 before entering the westbound lane of U.S. 50. The vehicles collided and Cary sustained injuries.

Plaintiff’s claim was submitted against Crouse on failure to yield the right of way. His claim against Bell was submitted on failure to keep a careful lookout. Instruction No. 9, the only contributory negligence instruction, required a verdict for defendants if Cary was negligent in failing to warn Bell. The jury returned a verdict in favor of Cary and against Crouse for $5,000 and in favor of Bell.

On this appeal, the sole point of error is based upon the giving of Instruction No. 9. It is not necessary to detail the specifications of error.

As respondent points out, any claimed error in the instruction was harmless in view of the jury’s finding in favor of appellant and against Crouse. By so finding the jury necessarily found that appellant was not guilty of contributory negligence.

This point was decided in Robbins v. Robbins, 328 S.W.2d 552 (Mo.1959). That case was an action by a passenger against his host driver and the driver of the vehicle with which the auto in which plaintiff was riding collided. The jury there, as here, returned a verdict in favor of the host driver and against plaintiff and in favor of plaintiff against the other driver. The court disposed of a challenge to a contributory negligence instruction as follows (328 S.W.2d 556[15]):

“Various complaints are made of Instruction No. 7, submitting the issue of contributory negligence. The instruction directed the jury to find for ‘the defendants’ if it found plaintiff contributorily negligent; only one such instruction was given. The jury found for the plaintiff and against defendant Ledbetter. The only possible construction of its verdict is that it found that plaintiff was not contributorily negligent; otherwise it could not have found for him against either defendant. Under these circumstances the instruction could not have constituted prejudicial error and we need not consider the specific objections.”

See also Fields v. Missouri Power and Light Company, 374 S.W.2d 17, 28-29[13, 14] (Mo.1963).

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Joan CLOUSE, now Compton, Appellant, v. James C. CLOUSE, Respondent.
    No. 27864.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      John C. Milholland, A. J. Anderson, Har-risonville, for appellant.
    Edward J. Murphy, Inc., Butler, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which modified divorce decree with respect to custody of children and allowances for their support. The principal question is whether the mov-ant-father met his burden to show, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the children or their custodian and that the modification is necessary to serve the best interests of the children. § 452.410, RSMo 1973 Supp., effective January 1, 1974. Reversed.

Joan Wiley and James C. Clouse were married August 25,1957, and were divorced June 25,1973. Prior to entry of the decree, the parties entered into a separation and property settlement agreement and agreed, “subject to the approval and judgment of the Circuit Court,” that care and custody of the parties' minor (adopted) children, James Bradford, born November 11,1963, and Jennifer Suzanne, born June 4, 1966, shall be granted to Mrs. Clouse with Doctor Clouse to have the right of reasonable visitation; and that Doctor Clouse would pay Mrs. Clouse for child support $500 per month per child, and for alimony $500 per month. The parties also acknowledged the jurisdiction of the court to make subsequent or additional orders concerning custody, child support, and alimony “upon a legal change of circumstances that would merit such order and judgment of the court.” They also agreed to a settlement of a number of personal properties, including automobiles and stocks and two tracts of real estate, and to a trust to be funded primarily by Doctor Clouse to pay for college education for the children. The decree found the agreement to be fair to both parties and it was incorporated into the decree. After hearing evidence, the court awarded a decree of divorce and custody of the children to Mrs. Clouse with reasonable rights of visitation to Doctor Clouse; awarded Mrs. Clouse a judgment of $500 per month per child for support of the children and $500 per month alimony.

This proceeding was tried on Doctor Clouse’s motion to modify, filed August 13, 1974, and subsequently amended. In Count I he sought transfer of custody of the minor children to himself from Mrs. Clouse, alleging, “there has been a substantial change of circumstances in that prior to * * * remarriage, [Mrs. Clouse] did so conduct herself in an immoral and amoral manner as to subject the children * * * to an improper and unhealthy environment; that [she] frequently and repetitiously permitted a male friend to stay at her home and did so conduct herself as to live with her present husband prior to her remarriage on November 9,1974. That [he] is willing and able to provide a proper and suitable home for the children and that it would be in the best interests of said children for said custody to be changed.” In Count II, “in the alternative and in the event the court shall deny his application for transfer of custody * * *he sought a modification of the support judgment “relieving [him] of the obligation of paying $500.00 per month for each child * * * and permitting [him], in the alternative, to establish a $500.00 per month trust for the future educational benefit of said children and thus to reduce payment * * * of the sum of $500.00 per month for both children.” He alleged “there has been a substantial change of circumstances * * * in that [Mrs. Clouse] has obtained employment and is earning in excess of $500.00 per month, * * * has now remarried, and is financially able to contribute to support of said children,” and the judgment awarded is “excessive and unnecessary,” and “investment of $500.00 per month in a trust account * * * can be made at this time at great financial savings to [him] for the benefit of his children and at no financial loss to [her].” In Count III, he sought termination of the alimony award.

Hearing on the motion was accorded February 1, 1975. Movant presented his case by calling Mrs. Compton as a witness and testifying in his own behalf.

Mrs. Clouse [Compton] was not employed at the time of the divorce, but became executive secretary of the Clinton Chamber of Commerce February 22, 1974, at a salary of $5,500 per year. She has since been increased to $6,700 per year. Her take-home pay is about $456 per month. She also receives $100 per month as secretary of the Henry County United Way. She went to work to rehabilitate herself and to supplement her family’s income. She belongs to Beta Sigma Phi and Junior Progressive Federated Women’s Club which meet once a month; she does not attend regularly. She has one night meeting each month with the Chamber board and with the Chamber’s retail committee.

She has been out of state on four occasions, at which times the children “were left in the care of reliable people.” One of the trips was over a weekend in Acapulco, Mexico, with three other girls when, on a Wednesday, her son was left with Mrs. Sue Cochran and her daughter was left with Mrs. Betty Moore until their father received them on Friday for the weekend; another was a 9-day trip to Spain when the children were left with their father; a third was a 9-day trip to Florida with the children; and the fourth was a week in Colorado “with my work attending an institute” when the children stayed with their father. She had a check for venereal disease following an incident of sexual intercourse during the trip to Spain. She was hospitalized “for a D & C” during which she had an IUD birth control device inserted. “I always lived under the assumption I could have no children, and after I was divorced I found out that I could.”

Mrs. Clouse began dating Mr. Compton in August, 1974. He stayed in her home “the week prior to the marriage * * * and we were well chaperoned [her father was also there] * * * he stayed there two or three times before * * * When asked if her daughter Jennifer, age 8, had called Doctor Clouse and reported she was watching her make love to a man on the couch, Mrs. Compton replied, “I don’t believe that * * * because she has never seen me make love to a man, married or single.” She “slept with the children” when Mr. Compton was present in the home prior to her marriage to him.

She has but an occasional need for baby sitters because her working hours permit her to be home when the children return home from school. Mr. Compton is now in the home during the summer months because his work is seasonal and he will be home during summer months.

Mrs. Compton uses none of the $1,000 per month child support for her personal benefit or the benefit of her present husband. She kept her child support, alimony, and personal income in one account, and kept a separate account for Mr. Compton. Her own account had a current balance of “about $380,” and she had “probably $200.00 worth of bills at home.” With respect to saving some of the $1,000 per month she receives for child support, she stated, “I would love to do that if I think I ever can.”

Among the persons Mrs. Compton has employed as baby sitters were a lady about 60 years old, her 78-year old father, Leslie Wright, age 15 or 16, and Sandy Smith, age 15. She was aware that Sandy had had some problems with drugs, but “felt like if I could show her I had some faith in her, perhaps it would help her a little bit.” She never had any drugs around the children and is not now involved with drugs.

During the same time, Doctor Clouse had also been to Acapulco, elsewhere in Mexico, and to numerous medical conferences. He did not, on such occasions, ask to take the children with him.

Mrs. Compton detailed her spending for the children in a number of months, e. g., March, 1974, $1,832.01; April, $1,655.61; May, $1,438.13; June, $1,607.16; July, $1,351.37; August, $1,965.14; September, $1,440.35; October, $1,656.59; November, $1,162.76; December, $2,106.60. They live in a clean home, have nearly everything they want, and she spends as much time with the children as they need. Their father takes credit for the children on the income tax returns, and the joint return of James C. and Joan Wiley Clouse for 1972 showed his gross income for 1972 at $102,-973 and his net income at $64,000. She believed that he was making more money at the present time. Her needs for the children have not changed since the divorce, and they now require more money to meet a cost-of-living increase of 14 to 20 per cent.

Dr. James C. Clouse took a position “ * * understanding when I paid her $1500.00 a month, that that was for her to take care of the children. * * * and when I began to see the mother who was supposedly going to take care of her children began to work, began to take trips, I began to get calls from the children. One time I went over when a baby sitter was there. We knocked on the door and said, ‘Where are the children?’ The baby sitter didn’t know. We drove around to the back and the little girl was up on the roof. Brad was at a filling station. She did not know where they were. I felt at that time that it was necessary to see that my children were cared for, and that is when I began to petition the Court * * * for custody * * * . Also during that time, one evening about 11:00 o’clock I got a call from Jennifer. She said, ‘Daddy, I am watching Mother make love with someone on the couch.’ I said, ‘Jenny, where are you?’ She said, ‘I am upstairs on the balcony.’ So I encouraged her to go back to bed, that everything would be all right, and I felt in my mind that regardless of what was going on * * * that it was probably a problem that needed to be looked into.” He disagreed with his wife’s claimed expenditures for care of the children, and felt she should be able to care for the children on less than $1,000 per month. One of his “main” concerns was to get the children through high school and to prepare them for higher education, the cost of which he thought to be “somewhere around $50,-000.00” for a bachelor of arts degree in a private school; in “Harvard or Yale or one of the Eastern schools * * * yOU are talking today in terms of maybe $87,000.00 * * * and for me to arrive at a needed amount of money * * * I will have to put away approximately ten to $12,000.00 a year.” When asked to state what relief he was seeking by way of his motion to modify, Doctor Clouse stated, “The relief I am asking for is not to decrease my payment to the children, but merely a reallocation of the money * * * I would like to pay her $500.00 a month to feed and clothe my children, then I would like to have $500.00 a month allocated that I could put in a trust fund to be used for educational purposes only” and “if they elect not to go to school, * * * this money would be divided up equally to the children for their use and benefit.”

Although indicating a temporary cut in income to underwrite expansion of his clinic, his net income for 1973 and 1974 was approximately the same as that in 1972.

He stated that he bought the children toys and clothes “which I usually keep at my house because the clothes that are sent over usually aren’t good enough to take them some of the places I take them. I furnish their drugs. The salesmen give physicians samples, so I am really not out any money for the drugs.”

Doctor Clouse had taken the children “to Kansas City several times to do post-graduate work,” and to St. Louis “where I spoke at an Emergency Physician’s conference. I can’t remember exactly, but I have taken them several times with me when I have gone out of town.” Doctor Clouse, upon a• unidentified occasion, asked his son “if he would like to live with me, and Bradley said, ‘Yes.’ * * * Brad has expressed the idea that he would like to live with me when he is 12 years of age, and I have told him, ‘Bradley, I am not pressuring you. I want this to be a hundred percent your decision, because any time you would like to live with me, if we can arrange it, I want you here because you are my son.’ * * * I feel a father and son should be together.” As to Jennifer, “I asked her last night, I said, ‘Jennifer, now we are going into a little conversation in the courthouse about the possibility of your moving with us and the Judge might possibly ask you if you would like to live with us.’ ” Her reply was, “ ‘Yes, I want to live with you because Mama is mean to me.’ I asked her what she really meant by that, and she said that her mother wouldn’t allow her to play with another little girl. * * * the children have never experienced any beatings, anything bad like that, but I feel that they have been neglected to the point that when a child says he would like to live with the other parent, it is something to be considered.”

On cross-examination, Doctor Clouse acknowledged that the separation agreement had already obligated him to pay for the education of the children, “but I would like to * * * provide a new contract * He thought he could not save $10,000 a year toward college education for his children despite his income of some $108,000 due to his expenses. He acknowledged that Mrs. Compton’s expenses had also risen, but asserted, “She now has a husband to help her with her problems.” He did not, however, “ask him for any duties to my children, I would rather him not spend a penny of his money on my children. That is why I want to get my children.”

Doctor Clouse, now age 39, remarried within three months after his divorce from Joan. The new Mrs. Clouse is 24 years old, and she and Doctor Clouse took trips together prior to their marriage. They also took Bradford and Jennifer along, and they slept together with the children present. They did not have intercourse in front of the children, but the children knew that the adults were sleeping together.

Doctor Clouse felt it was neglect for Mrs. Compton to leave the children with young baby sitters. “I was under the assumption when we agreed on this contract * * * that verbally this contract has been broken * * When asked whether he was coerced into signing the separation agreement, he replied, “I am sort of like everybody else, when you really want out of a situation you pay a little blue sky *

Doctor Clouse acknowledged that his ex-wife kept the children clean; and, although he mentioned rumors to the contrary, he had no personal knowledge that the home was anything but clean. The visitation arrangement provided in the divorce decree had “been a workable relationship.”

At the time of the divorce, Mrs. Clouse received a 1972 Chrysler Station Wagon which she traded for a 1974 Monte Carlo when upkeep on the older car exceeded payments on the new. Doctor Clouse had a 1973 pickup truck and a 1973 Cadillac. He has since sold the truck, bought another, traded for a 1975 Cadillac, and bought a Porsche.

In addition to maintaining his practice, Doctor Clouse is studying for a specialty in nuclear medicine. He also has investments in farms and has rental properties.

Mrs. Sue Cochran was a visitor in Mrs. Compton’s home three or four times a week in the year prior to the hearing. She described the home as “a lovely house; it is well kept; it is beautiful * * * definitely clean.” She had never observed any mistreatment of the Clouse children, their needs were met, they were happy and well-adjusted. Her son is Bradford’s best friend. She heard her son and Bradford discussing a trip that the boys had made to Springfield with Doctor Clouse. They had been “hollered at” by Doctor Clouse’s wife-to-be, and they didn’t think it had been a pleasant weekend. The boys stayed in one room and Doctor Clouse and his friend stayed in another. “It was hard for me to explain * * * to my child. * * * At the time they left I didn’t know that this was going to be the situation.” She would not have allowed her son to go if she had known the arrangements in advance.

Cecil Wiley is the father of Joan Wiley Clouse Compton. His daughter and Doctor Clouse were married when they were in Drury College before he went to medical school in Kansas City. While he was in medical school she worked as a secretary and her money put him through medical school. He has visited in his daughter’s home and has lived there for short periods during recuperation from illness. He observed the Clouse children to be clean and supervised. He knew “there was a man stayed there a time or two but he slept by himself. She slept with the children.”

Joan Wiley, a cousin by marriage of Joan Wiley Clouse Compton, was a schoolteacher. She had observed the Clouse children while at school and noted they were clean, well-mannered, and well-disciplined. She had been in the Compton home recently and on a number of occasions. The home was clean and the children were “happy, loving children,” getting excellent care. They did not want for anything.

Joan Wiley Clouse Compton testified also in her own behalf to relate two conversations with the children about their father. He “left town and got married one weekend and the children became quite upset about it and Brad said, ‘Well, Mother, the only thing good about it, I am tired of seeing them sleep together when they are not married. * * * It also has been very difficult for me to relate to my daughter that it is improper for you to sleep with a man before you are married, because she has seen it done elsewhere * *

The court modified the original decree to vest care, custody and control of James Bradford Clouse in James C. Clouse, subject to weekend visitation and care, custody, and control for the month of July in Joan Compton, for which month the father shall pay $300 to the mother for the son’s maintenance; and to continue care, custody and control of Jennifer Suzanne Clouse in Joan Compton, subject to weekend visitation and care, custody, and control for the month of August in James C. Clouse, with the father to pay $300 per month except for the month of August to the mother for the daughter’s maintenance. The court also recognized the continuing obligation under the decree of the father to prepare for the higher education of the children; and awarded plaintiff’s attorney $500, recognizing same as a part payment and that Mrs. Compton has the ability to pay any balance due him for his services.

The case is for review upon both the law and the evidence with due regard to be given the opportunity of the trial court to have judged the credibility of the witnesses. See Rule 73.01.3(a), (b), V.A.M.R., and its construction, Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

The foregoing detailed statement of the case, viewed as required by the rule, demonstrates that the judgment in modification of the divorce decree is erroneous.

Section 452.410, supra, provides:

“The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

Section 452.370, RSMo 1973 Supp., provides similarly:

“ * * * any decree respecting maintenance or support may be modified * * * only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.”

When custody of children is once adjudicated (by the decree of June 25,1973, in this case), it is presumed that the custodian remains suitable and the burden of proving a change in circumstances as to call for a change of custody is on the party seeking the change. Children should be transferred from one environment or custodian to another only where a change of circumstances is such that the welfare of the children so requires. Klaus v. Klaus, 509 S.W.2d 479, 481[1-7] (Mo.App.1974).

As grounds for a change of custody (Count I), the father alleged that the mother, since the divorce decree and prior to her remarriage, conducted herself in such an immoral and amoral manner as to subject the children to an improper and unhealthy environment; that she frequently and repetitiously permitted a male friend to stay at her home, and did so conduct herself as to live with her present husband.

There is no finding of fact referable to the foregoing allegations. Such is understandable in view of the absence of proof of the allegation.

With respect to the mother’s alleged immoral and amoral conduct, movant offered only his hearsay testimony of a telephone conversation with the 8-year-old daughter of the parties. The observation attributed to Jennifer is fraught with ambiguity which the father himself recognized by his speculation or “feeling” that “regardless of what was going on,” there was “probably a problem that needed to be looked into.” The inconclusive nature of this isolated incident was not clarified by other testimony of the father, nor was there any resort to the provisions of Section 452.385 to ascertain “relevant matters” within the child’s knowledge.

The credible evidence in this instance came from movant’s other witness, the mother, for whose credibility he vouched and by whose testimony he is bound. Shepard v. Harris, 329 S.W.2d 1, 4[1] (Mo. banc 1959). Mrs. Compton denied the suggested implication of the child’s telephone call and explained the separate sleeping arrangements made in her home when male visitors were present. She was corroborated, also, by the testimony of Cecil Wiley who was shown to have been present in the mother’s home in the period under scrutiny.

Mrs. Compton admitted a sexual experience while on a trip to Spain, and her subsequent medical examination. It is beyond question that the incident occurred when the children were with their father in Missouri. Such an isolated incident which occurred outside the presence and knowledge of the party’s children is not a change of condition or showing of immorality as to support a change of custody. McPherson v. McPherson, 447 S.W.2d 791, 793[2, 3] (Mo.App.1969). See also Moore v. Moore, 429 S.W.2d 794, 797[5] (Mo.App.1968); McCallister v. McCallister, 455 S.W.2d 31, 34[3] (Mo.App.1970).

The evidence shows that two men stayed at the mother’s home prior to her marriage. One was her present husband; the other her father. Mrs. Compton, still movant’s witness, explained that Mr. Compton stayed at her home the seven days preceding their marriage and on two or three prior occasions; that they were “well-chaperoned” at all times; that when Mr. Compton was there, she slept upstairs with the children; and that her father was present most of the time. Indeed, it appears that her father is the “male friend” that she “frequently and repetitiously permitted” to stay at her home. Again, Mrs. Compton was corroborated by the testimony of her father. He was not cross-examined, nor was his credibility questioned.

The judgment contains a finding that a modification is necessary to serve the best interests of the son, James Bradford Clouse. The only evidence from Doctor Clouse on the issue is his expression of concern for the children’s higher education, an obligation he already has, his feeling, and his hearsay statement attributed to the son. The substantial evidence on the best interests of both children came from Mrs. Compton’s side of the case. It showed that both children were happy, living in a clean, nice home, doing well at school, and were well-adjusted, well-supervised, and well-disciplined. The court must have believed this to be the case; otherwise, the daughter could not have been continued in the custody of her mother. Similarly, the court’s action in continuing the daughter in her mother’s custody implies an absence of immoral or amoral conduct as to subject the children to an improper and unhealthy environment.

In Count II of the motion to modify, the father sought to be relieved of the obligation to pay $500 per month per child for child support, and to be permitted, in lieu of such obligation, to establish a $500 per month trust for future educational benefit of the children and thus to reduce the monthly payments for child support. As grounds for the change prayed, the father alleged, as changed circumstances, that the mother had become employed; that the judgment for child support was excessive, and that the children could be adequately supported by payment of a total of $500 per month for support and by investment of $500 per month in a trust account for future educational needs.

The only evidence adduced on this count was from Doctor Clouse when he testified: “The relief I am asking is not to decrease my payment to the children, but merely a reallocation of the money. * * * The thing I petition and beg for, in the interest of my children’s future education, is, I would like to pay her $500.00 a month to feed and clothe my children, then I would like to have $500.00 a month allocated that I could put in a trust fund to be used for educational purposes only * * *.”

The court reduced the child support judgment from $500 per month to $300 per month, and recognized, as per the original decree incorporating the separation agreement, that movant already had the obligation to educate his children.

In these circumstances, the court exceeded its jurisdiction because it adjudicated an issue in a manner inconsistent with the pleadings and evidence. By his own testimony, plaintiff sought only a novel “reallocation” of the money previously ordered paid as child support instead of a reduction in child support. Instead, the court entered an order alien to the issue presented by the pleadings and evidence and, therefore, beyond its jurisdiction. Dickey v. Dickey, 132 S.W.2d 1026, 1032 (Mo.App.1939); Poole v. Poole, 287 S.W.2d 372, 374 (Mo.App.1956); Lambert v. Lambert, 222 S.W.2d 544, 548 (Mo.App.1949); Clark v. Clark, 300 S.W.2d 851, 852 (Mo.App.1957); Hughes v. Wagner, 303 S.W.2d 181, 182, 184[2] (Mo.App.1957).

Nor does the record impel this court to order a reduction in child support. The father is shown to be making as much or more money than he was at the time the decree was entered; and there is no showing of an inability to continue to meet his obligations. True, the mother has since become employed, but she has also remarried and lost her alimony of $6,000 a year, a sum which is no more than offset by her earnings. The needs of the children have remained the same or increased and their father continues able to meet them.

Appellant complains the court abused its discretion in limiting the suit money judgment which decreed that she would have to pay the balance of her attorney’s fees from her own means. The record shows only the hours spent by the attorney and that the judgment was for $500, with an implication that Mrs. Compton might be further obligated. Such record is not adequate for this court to further consider the matter.

Judgment in modification of custody and child support reversed; judgment for attorney’s fees affirmed.

All concur.

      . The parties stipulated the marriage of Mrs. Clouse to Mr. Mike Compton on November 9, 1974, and that the judgment for alimony was thus terminated.

      . The remarriage of both parties and the mother’s employment were not pleaded as changed circumstances in themselves, and evidence of those circumstances was offered and received only as it related to the grounds alleged.


text:
    Robert MORRIS, Plaintiff-Appellant-Respondent, v. O. L. PIKE et al., Defendants-Respondents-Appellants.
    Nos. KCD 27952, KCD 27934.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    R. Leroy Miller, R. Max Humphreys, Allan D. Seidel, Miller, Humphreys & Seidel, Trenton, for O. L. Pike.
    Holcomb & Spillman, Trenton, for Robert Morris.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by plaintiff for specific performance of oral contract to convey a farm and for damages; counterclaim by defendants for possession of said farm and for rent and penalty. Judgment for defendants on plaintiff’s petition and on their counterclaim for possession; and for plaintiff on defendants’ counterclaim for rent and penalty.

Appeal (27952) by plaintiff from the denial of his petition, combined with appeal (27934) by defendants from denial of their counterclaim for rent and penalty. The dispositive questions are whether plaintiff adduced proof sufficient to except the alleged oral contract from provisions of the Statute of Frauds, Section 432.010, RSMo 1969; and whether defendants are entitled as a matter of law to a judgment for rent and penalty. Affirmed.

Plaintiff’s theory of recovery is taken from his petition of February 13, 1974, in which he alleged: that defendants as owners of a 70-acre tract of land, acting through defendant O. L. Pike on or about April 9,1969 (orally) agreed to sell and deed said land to him for $5,000, for which he was to pay $1,000 down with defendants to carry the balance for 10 years, payable in annual installments of $400 at 7% interest, “which offer Plaintiff accepted”; that pursuant to said agreement, plaintiff bulldozed brush, purchased roofing for the house, and has since lived on the farm and treated and claimed it as his own, relying on defendants’ promise to convey title to him, and, in so doing, has been prevented from purchasing other farm or farms and from bettering his condition in life; that he made arrangements to finance the down payment, requested defendant O. L. Pike to furnish a deed to said real estate, and stood ready at all times to give defendants a note and deed of trust for the balance of $4,000 payable over a 10-year period; that defendant O. L. Pike informed plaintiff that the same would be done, “but did not want to have any * * * papers formalizing the contract written up until the following year, and after January 1, 1970”; that plaintiff thereafter offered on two occasions to complete the contract, and defendant O. L. Pike acknowledged he had sold the farm to him for $5,000 but refused and neglected to furnish him with a title deed; that defendant O. L. Pike acknowledged to others that he had sold the farm to plaintiff and informed him that he had never “welched” on a contract, but defendant O. L. Pike had refused and still refuses to make an execute a deed to convey said land to him. By a second count, plaintiff alleged that by reason of said breach, he sustained damages. His prayers were for specific performance of the alleged contract, and for $13,000 damages for its breach.

Defendants admitted their ownership of the farm, alleged that improvements on the farm and plaintiff’s occupancy were pursuant to an oral lease agreement between plaintiff and defendants made prior to April 9, 1969, and asserted defenses of the statute of frauds and laches. Defendants’ theory of recovery is taken from their counterclaim in which they alleged: that from April 8, 1969, to the present, plaintiff occupied the farm as a tenant from year to year at an annual cash rental of $200 payable April 8 of each year; that plaintiff paid the rental on April 8, 1968, and April 8, 1969, but has not paid further rental although duly demanded and $1,000 is due and unpaid; that on or about February 6, 1974, defendants served plaintiff with notice to vacate and demand for possession of the farm on or before April 8, 1974, and plaintiff has failed and refused to surrender the farm to defendants. Defendants’ prayer was for $1,000 accrued rentals, and for $400 penalty by way of double rent for withholding the premises after the notice to vacate, and for possession of the farm.

Plaintiff’s version of the evidence: By oral agreement he rented and took possession of the farm in question as a tenant of defendants O. L. and Edna Pike in April, 1967, at a cash rental of $200 per year, and paid the rent in each of the first two years. On April 9, 1969, he entered into a verbal agreement with O. L. Pike for sale of the farm, covering “the tract to be sold, the total price, amount of the down payment, and rate of interest.” He tendered the down payment of $1,000 but Mr. Pike refused to accept it, stating, “I don’t want nobody’s money until he’s got something to show I got it.” Mr. Pike also told him not to worry about getting papers for sale of the farm signed because he had never “welched” on a deal. Mr. Morris arranged for financing the purchase with Home Exchange Bank of Jamesport. He was advised to give a check for the purchase price and that a note would be drawn after the purchase was consummated. In May, 1969, he hired Dale Rosson and his bulldozer and paid for three and one-half hours’ work to clear three to five acres of timber and brush from the farm. He also secured help from Richard D. Clark in repair of up to a quarter mile of fence and for repair of the dwelling house. He did not buy any other farm because he thought he was “tied up on this one.” He contracted to remove a 60' X 40' barn from an area farm and secured help to take it to this farm with intention to erect it on the farm. None of the owners demanded rent other than that paid as aforesaid except as may have been implied in the notice to vacate. He had never been previously involved in a purchase of land. Defendants own over 1,000 acres of land acquired through several purchases, which acquainted them with the paperwork involved in a farm sale. In the spring of 1970, he went to Mr. Pike’s hog lot at a time “we took care of some hogs” or “was trying to buy some hogs off from him,” and “told him his thousand dollars was ready any time he wanted it and the back taxes, why, I would take care of it and the back interest.” Mr. Hugh Campbell, a real estate agent, sought to list the Pike farm for sale and was told by Mr. Pike that the farm had been sold to Mr. Morris.

Mr. Pike’s version of the evidence: The oral agreement for rental of the farm also provided for Mr. Morris to repair and maintain the house and fences. Mr. Morris had to do some plastering, papering, painting and roofing before he could occupy the house. The fences also needed repair before stock could be run against them. Mr. Morris furnished any work and materials for the house and fence repairs pursuant to the rental agreement of 1967. Mr. Pike acknowledged that around April 9,1969, the owners orally agreed on a sale price of $5,000 on the farm with $1,000 down and the balance to be carried at 7% interest. There was no agreement “as to how much per year he would pay,” or how many years he would pay, or when the transaction would be completed. The owners were unwilling to accept any money without completing the paperwork necessary to the sale. There was no agreement with respect to taxes, insurance, abstract, and when and by whom the paperwork would be accomplished. The conversation (on or about April 9,1969) relating to a sale took place in a field where Mr. Pike was disking cornstalks preparatory to spring plowing. Mr. Pike did not remember any other conversation between himself and Mr. Morris concerning a sale except upon an occasion when he stopped by Morrises and asked Mr. Morris to have the papers made. Mr. Pike’s understanding was that Mr. Morris was to see to the paperwork and that the sale would be made by a “contract and when the contract was paid off he would get the deed and abstract.” These circumstances and stalemate existed for four years until the owners served the notice to vacate effective April 8, 1974. The owners were unaware of any roofing or fencing, and did now know that a bulldozer had been on the farm. Any bulldozer work would have been without their permission. Richard Trickel, a neighbor to the farm in question, noted that all the fences between the two farms were in poor condition and when he asked Mr. Morris about fixing the fence, Mr. Morris said he was not obliged to fix the fence.

No findings of fact were requested, and the court made no findings of fact or conclusions of law. The case is for review upon both the law and the evidence with due regard to be given the opportunity of the trial court to have judged the credibility of the witnesses. See Rule 73.01.3(a), (b), V.A.M.R., and its construction, Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

Appellant Morris contends the court erred in denying enforcement of the alleged oral contract “as there was evidence sufficient to establish a contract and remove it from the Statute of Frauds”; and that depriving him of the benefit of the contract was unjust because of his “detrimental reliance on the oral contract.” He contends also that the “circumstances do not indicate the propriety” of laches as a defense.

The statute of frauds in Missouri provides:

“No action shall be brought * * * upon any contract made for the sale of lands, * * * unless the agreement upon which the action shall be brought * * * shall be in writing and signed by the party to be charged therewith * * Section 432.010, supra.

The foregoing statute bars enforcement of the oral contract alleged to exist between Mr. Morris and the Pikes unless he is entitled to have it excepted from the statute under well-defined rules of procedure, i. e.: “(1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed made before the acts of performance relied upon were had.” Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028[1], 1029 (1912). See also Hobbs v. Hicks, 320 Mo. 954, 8 S.W.2d 966 (1928); Anderson v. Abernathy, 339 S.W.2d 817 (Mo.1960), and Pointer v. Ward, 429 S.W.2d 269 (Mo.1968), dealing in particular with the elements of part performance of and reliance on the alleged oral agreement; and Ray v. Wooster, 270 S.W.2d 743, 751[6, 7] (Mo.1954), dealing with the element of time.

The evidence, viewed as required by the rule and under the foregoing principles, supports the court in its denial of specific performance of the agreement in question. The evidence shows disputed and unresolved matters of contract such as the nature of the agreement, i. e., whether it was for a conventional sale or a contract for deed, tender of down payment, terms of payment, time of payment, dates of payment, time of closing, preparation of instruments, insurance, taxes, and abstract. It is essential to a concluded contract subject to specific performance that there be a meeting of the minds upon terms so definite that promises and performances are reasonably certain and none are in doubt or subject to future ascertainment. Ellison v. Wood Garment Co., 286 S.W.2d 27, 31[8] (Mo.App.1956). The court cannot make a contract for the parties, and if the agreement sought to be enforced is indefinite or incomplete, cannot decree specific performance. Wilkinson v. Vaughn, 419 S.W.2d 1, 5[3] (Mo.1967).

The foregoing weaknesses are amplified by the remote and casual nature of the conversations which appellant contends gave rise to the alleged contract. The evidence shows that the two conversations concerning sale of the farm took place five years and four years prior to this action to secure performance. The first took place in the owners’ cornfield during a disking operation; the second took place in the owners' hog lot in Mr. Morris’ recollection, and at Mr. Morris’ home in Mr. Pike’s recollection.

Nor is there a showing of part performance by work done to require enforcement of the contract. The initial occupancy of the farm by Mr. Morris was as a tenant under an oral agreement to pay an annual cash rental and with the obligation to maintain the property. Work performed on the house was necessary to make it habitable; repair of fences was necessary to running stock. All such refers to the initial oral lease of the farm as well as to the alleged oral agreement for sale of the farm. The bulldozing was limited to clearing brush and was so inconsequential that Mr. Pike was unaware that a bulldozer had been on the farm. All of these acts said by appellant to constitute part performance are consistent with continuance of possession under the oral lease agreement. None of them suggests “a radical change in the attitude of the contracting parties towards each other; a change consisting of acts done; a notorious change, which itself indicates that some [new] contract has been made between the parties.” Emmel v. Hayes, 102 Mo. 186, 14 S.W. 209, 210 (1890). See also Willey v. Talkington, 312 S.W.2d 77 (Mo.1958). In order for acts done in alleged performance of an oral contract to qualify the contract for enforcement, they “must be referable solely to the contract [sought to be enforced] and explicable on no other reasonable theory.” Hinkle v. Hinkle, 236 S.W. 30, 34[4] (Mo.1921).

With respect to appellant’s asserted denial of benefits by the court’s refusal to recognize an enforceable contract, suffice to say that absent a contract, there is no breach of contract upon which to consider an award of damages.

With the case in this posture, it is unnecessary to discuss the availability of defense of laches.

Appellants Pike contend the court erred in failing to sustain their counterclaim for rent and penalty.

With respect to rent, the evidence shows that plaintiff paid but two years’ rent; however, evidence to show an expectation of, or demand for rentals for subsequent years by defendants is lacking. This court defers to the trial court’s resolution of the issue against defendants.

Appellants Pike argue that Section 441.-080, RSMo 1969, authorizes penalty by way of double rent for plaintiff’s occupation of the farm after the notice to vacate of February 7, 1974.

Section 441.080, supra, applies to tenancies for life or years. It has no application in this case because Mr. Morris was neither a tenant for life nor for years. See distinctions, 49 Am.Jur.2d, Landlord and Tenant, Sections 65, 69, 70, 73; Section 441.050, RSMo 1969.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. George J. PETERS, Appellant.
    No. KCD 28134.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      J. Martin Kerr, Independence, for appellant; Tittle & Kerr, Independence, of counsel.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant was found guilty by the verdict of a jury of the commission of the crime of murder in the first degree of Dr. Lynn D. Weller. The court found that appellant was a second offender under the allegations of the information substituted for the indictment of a grand jury, and sentenced him to life imprisonment in the Department of Corrections.

There are two dispositive issues. The first is the admission of incriminating evidence of a taped conversation with appellant, while he was in jail awaiting trial, and witness Lila Joyce Meek, who had a “bug” in her hair at the time, which evidence is contended to be inadmissible by appellant as being an infringement of his Sixth Amendment right to assistance of counsel under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The second is the contended error in the failure of the trial court to give the manda-torily required additional instructions on murder in the second degree and manslaughter under MAI-CR 6.02, Note 6, which was effective March 1,1975, this case having been tried beginning May 5, 1975. As hereinafter developed, the determination of these issues require reversal and remand of the case for new trial.

The facts are these: Appellant was charged with murder in the first degree of one Lynn D. Weller on September 17, 1973. On November 14, 1974, appellant was arraigned and entered his plea of not guilty. On November 20, 1974, appellant’s then counsel, the public defender, filed a request for discovery, which among other things, asked for written or recorded statements of appellant. Upon a finding, December 30, 1974, that appellant was not then an indigent person, the public defender was relieved and appellant’s present counsel entered his appearance on January 6, 1975. On March 18, 1975, he filed another request for discovery of recordings, and on May 5, 1975, he filed a pre-trial motion to suppress evidence of oral statements, admissions of confessions made by appellant in the Jackson County jail to Joyce Meek, which motion was overruled. An objection made at trial to the evidence was overruled, and the point is preserved by the motion for new trial.

On September 17,1973, Mary Graves was and had been for some time the girl friend of Dr. Lynn Weller, for whom she worked in the Medical Center for Women. A month before he had told her “that the police had reason to believe that there was a threat on his life, that a so-called contract had been issued and that he was directed, naturally, to be extremely careful * On September 17th, after pre-arrangement, Mary drove to Weller’s home at 7320 Manchester, arriving about 10:30 p. m. The light was on in the garage, so she walked in, but Weller was not there. She knocked on the house door in the garage, but got no response, and as she turned to leave she saw two men approaching, one of whom, McGuire, had a shotgun pointed at her. McGuire was the man of whom Dr. Weller had shown her a picture, which picture had been given him by the police. The men followed Mary around the house to the front door where she knocked. Weller opened the door, and the man with the shotgun levelled it over Mary’s shoulder at Weller, and pushed their way inside. Weller grabbed the shotgun by its barrel, and during that struggle the other man shot Weller with a pistol. At this particular time the two men had netting types of masks on. Mary was ordered to lie on the floor in a room next to the kitchen and one of the men walked past her and struck her on the back of the head. The man walked back to the kitchen and there was a few seconds later a very loud blast. Mary had barricaded herself in other parts of the house and later reported the occurrence to the police from a next door neighbor’s home. The police came and she gave a detective a statement. She identified McGuire the next day in a line-up, and the day after that she was shown some photographs by Officer Cool, and she was able to pick out appellant in two photographs as being the man with McGuire on the night in question. She also made an in-court identification of appellant as being that man.

There was evidence that the cause of Weller’s death was a shotgun wound to the head. An expended shotgun shell found at the scene of the killing was connected with a riot shotgun which had belonged to appellant prior to the shooting.

Joyce Meek, one time married to appellant, testified that after he was arrested he started calling her place of residence, 10 or 15 times. She then went to the police department and tried to have the harassment stopped because it was making a very shaky situation with her new marriage. Prior to that time, during the telephone conversations, appellant told Joyce, “Joyce, there’s no way that nobody can identify me because I had a mask over my face”; and concerning McGuire, “A Yes, sir, he told me that there was no way that Pat McGuire would squeal on him.”

It is obvious from the foregoing evidence that a submissible case of murder in the first degree was made against appellant: The identification of appellant as being at the scene of the killing and being one of Weller’s assailants with the pistol; the connection of the shotgun murder weapon with appellant; and his voluntary statements to Joyce on the telephone incriminating him.

The state, however, went further than was needed, and committed reversible error. After Joyce Meek went to the police department about appellant’s telephone calls to her, she went to the office of an assistant prosecuting attorney, the date being November 26, 1974. With Joyce were Detective Clark Hamilton, Sergeant Trollope, Policewoman Elaine Dalton, and the assistant prosecuting attorney. Joyce mentioned that she had been in contact with appellant and he requested her to go to the county jail to talk with him. It was decided that Joyce was to go up to the jail “bugged” and record conversations with appellant. Joyce consented to have a microphone placed on her person, in her hair, and it was put there by the police. She then went to the jail and appellant’s conversation with her was recorded and later transcribed. Joyce listened to the recordings and made corrections on the transcription with the assistance of one Mary Jo Peters who had at one time been married to appellant. Both the transcription and the tape were introduced into evidence and the jury listened to the tape recording. At the time of the meeting between Joyce and according to the assistant prosecuting attorney, “A We asked her to be as calm as could be, not to, so to speak, tip her hand, show her hand; but that if, during the course of the conversation, certain incriminating statements were offered, not to feel ashamed or be afraid to go further into the details. Q Was she instructed by yourself, or anyone, to ask any certain kind of questions? A Well, I think that we may have mentioned to her to not be afraid to ask about the crime.” Joyce’s testimony, on pretrial motion to suppress, was: “Q And did they give you any specific instructions about what questions to ask, or what to do, or did you just go up there and let Mr. Peters say whatever he wanted to say? [Objection, overruled.] Q (By Mr. Humphrey) What was said to you? A What was said? They asked me if while I was up there, if I would ask George if he did commit the murder, something about a safety deposit box there in Clinton, I believe it was, that he had told me about over the phone, etc. * * The portions of the transcript which were read to the jury in connection with Joyce’s testimony were these: “Q (By Mr. Humphrey) Mrs. Meek, I want to ask you if you remember this being on the tape where it says ‘female’. Is that your voice? A Yes, sir, it is. Q And would you read the question where it says ‘female’ there in that transcript? A ‘Were you where they say you were at or were you? You didn’t do it?’ * * * Q (By Mr. Humphrey) And the answer was, ‘Don’t ask questions now. When I get out I’ll tell you the whole story. What you don’t know now won’t hurt you. Understand?’ A ‘In other words, it’s more like saying well, I did it, but shut up. I don’t know.’ Q Who said that? A I said that. Q And the male voice, this is George Peters, says, ‘Yes, I’m not saying yes and I’m not saying no. I’m just saying what you don’t know right now won’t hurt you. But just take it this way, I’m changed.’ Go ahead. A ‘Honey, I can’t believe it, I just can’t.’ Q ‘Never mind.’ A T say well he probably did, you know.' Q And then what did you say? A That was my statement. ‘Is this the first killing?’ Q And George Peters answered, ‘It’s not the first.’ A ‘Thanks a lot, friend.’ Q ‘I’m just telling you. It’s not the first.’ A ‘Will it be the last?’ Q ‘Oh, yeah, my partner’s in jail now. So we haven’t taken any business off in quite a while.’ Reading now from page 7 did George Peters say, T gotta come up with two grand as soon as I get out. It will take 24 hours to get it here. As soon as I take a trip to Columbia’? And what did you say? A ‘Columbia or Clinton?’ Q And George Peters said, ‘Clinton. Columbia.’ A ‘Is there anything you should want maybe I should know?’ Q ‘No way you can get it. It’s in a safe deposit box. It was already prearranged before anything ever happened. Nobody could get to it. It’s not in my name. This guy, the President of the bank down there is a friend of mine and Pat’s.’ A ‘Who?’ Q ‘Of mine and Pat’s, Pat McGuire.’ A ‘Oh, okay.’ Q ‘And this is actually in the safety deposit box in his own name.’ A ‘Where’s the key?’ Q ‘That’s taken care of, too.’ On page 10 of the transcript. A ‘When you get out will you staighten up or what?’ Q ‘Oh, yeah, I’m not bad.’ A ‘Will it be nice and legal all the way?’ Q ‘Yes.’ A ‘Now I mean that, George.’ Q ‘Joyce, I have a couple of commitments I have to straighten out. I have to straighten this out. I work for some people. I told you I’ve changed. I work for some people and I have to straighten this thing out. Understand? I can’t get ahold of these people up here you know. I have some money when I get out, waiting for me too. When I get out, to work for some people.’ A ‘What’s the chances of getting caught after you’ve been out a while? There’s no way, right?’ Q ‘Yeah, there’s no chance. I’m just saying I work for some people and I have to tell them I’m going to cool it.’ A ‘If you think anything of me, I mean, like I’m not getting any younger.’ Q ‘Joyce, I work for some people. You just don’t tell a man I quit. You understand?’ A ‘You should never have gotten tied up with them to start with.’ Q ‘Well, the money is fantastic. The money is fantastic.’ A ‘Is it worth life in prison for?’ Q ‘I’m not planning on it ’cause there would be no witness again.’ ”

The indictment here was filed February 15, 1974. On November 14, 1974, appellant appeared in person, and by attorney, the public defender, was then arraigned and entered a plea of not guilty to the charge of murder in the first degree. Bail was set in the amount of $150,000.00. This was 12 days before Joyce Meek went to the Jackson County jail with the “bug” in her hair, with police and prosecutorial help to record conversations she had with appellant.

The facts in Massiah, supra, were these: Massiah was indicted for violating federal narcotics laws. He retained a lawyer, pleaded not guilty, and was released on bail. A co-indictee, Colson, a few days later decided to cooperate with government agents, and he permitted the agents to install a radio transmitter under the front seat of his automobile, by which agent Murphy could overhear conversations from some distance away. Thereafter, Colson and Massi-ah had a lengthy incriminating conversation in the car which was overheard by agent Murphy, who testified to it at trial. The court reversed the conviction, relying in part upon its earlier decision in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), where defendant, having been indicted for first degree murder, had a confession elicited from him which was admitted into evidence against him. In Spano, it was said by the Massiah court, the defendant’s conviction could not stand under the Fourteenth Amendment, although the court's opinion relied upon the totality of the circumstances under which the confession had been obtained, four concurring Justices pointed out that reversal was required on the sole and specific ground that the confession had been deliberately elicited by the police after defendant had been indicted and at a time when he was clearly entitled to a lawyer’s help, paraphrasing and quoting Spano, supra, 377 U.S. at page 204, 84 S.Ct. at page 1202, “[A] Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” The Court went on to quote from People v. Waterman, 9 N.Y.2d 561, 216 N.Y. S.2d 70, 175 N.E.2d 445, 448 (N.Y.1961), “ ‘Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.’ ”

In Massiah, the listening device was placed under the seat of the cooperating individual’s car, Colson’s, by government agent Murphy, who listened in to the several incriminating statements made by Massiah. In this case the state contends that at no time was Joyce Meek acting as a government agent, “and was not acting as such when the appellant requested that she visit him at the Jackson County Jail.” The contention enclosed in quotes is true, but it does not follow that Joyce did not thereafter become a “government agent” when she acceded to having the “bug” put in her hair and was told by the assistant prosecuting attorney to be as calm as could be, not to speak or show her hand; “but that if, during the course of the conversation, certain incriminating statements were offered, not to feel ashamed or be afraid to go further into details. Q Was she instructed by yourself, or anyone, to ask any certain kind of questions? A Well, I think that we may have mentioned to her not to be afraid to ask about the crime.” Thus, it is apparent that the police and prosecutorial participation in this case was more extensive than that in Massiah, where the government agent, Murphy, merely listened in to the incriminating statements by prearrangement with Colson (nothing appears in the Massiah opinion which indicates that any type of questions were suggested to be used by Colson). It is clear from these facts, and the nature of some of the incriminating, taped statements of appellant, that his Sixth Amendment right to assistance of counsel was violated, and the evidence of the taped conversations while he was in jail should have been excluded. The principle of Massiah has not been altered, but was reaffirmed in Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967), which reversed the holding of the Fifth Circuit Court of Appeals in Beatty v. United States, 377 F.2d 181 (C.A.5th 1967). Massiah has been followed in this state, State v. Witt, 422 S.W.2d 304, 308, 309 (Mo.1967), citing and quoting also State v. Herman, 3 Ariz.App. 323, 414 P.2d 172, 175-176 (1966). [It must be mentioned that the portion of the Herman decision holding that statements elicited from a defendant, without the presence or approval of defendant’s counsel, are inadmissible as a matter of law, was expressly overruled in State ex rel. Berger v. Superior Court, 105 Ariz. 553, 468 P.2d 580, 581 (1970).] See also State v. White, 494 S.W.2d 687, 692 (Mo.App.1973); United States v. Thomas, 474 F.2d 110, 113 (C.A.10th 1973); Clifton v. United States, 341 F.2d 649 (C.A.5th 1965); United States v. Anderson, 523 F.2d 1192 (C.A.5th 1975); United States v. Merritts, 387 F.Supp. 807 (E.D.Ill.1975), reversed in part, 527 F.2d 713 (C.A.7th 1975). Without doubt, assistance of counsel under the Sixth Amendment is binding upon the states under the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); 21 Am.Jur.2d, Criminal Law, § 319, p. 347.

The state contends that the evidence of the tape recordings and the testimony in regard thereto, being merely cumulative to other strong evidence of appellant’s guilt, was harmless beyond a reasonable doubt. As set out in detail above, the evidence admitted bore directly upon appellant’s guilt, being corroborative of other eyewitness testimony of his presence, armed, at the scene and his participation in the homicide, and Joyce’s testimony of telephone conversations of appellant’s admissions. This court cannot say that the tapes and testimony about them did not affect the jury’s assessment of the case against appellant. This court cannot, therefore, declare the error harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300 (1944).

The state cites and relies on People v. Hiser, 267 Cal.App.2d 47, 72 Cal.Rptr. 906 (1968), but that case may be distinguished in its holding that defendant’s inamorata was not a police agent, because there was no evidence that she and the officer, who drove her to the jail, agreed to monitor conversations with defendant before the visit, or that the inamorata in any way knew that the conversations would be monitored. Her testimony at trial was admitted without objection and without motion to strike. In any event, in view of the Witt case, and others, supra, following Massiah, this court chooses not to adopt the end result of the Hiser case. On retrial of this case, the evidence of the tape recording, or any other testimony alluding thereto, should be excluded.

Also upon new trial, instructions should be given, as mandated by MAI — CR 6.02, note 6, both upon the subjects of second degree murder and manslaughter.

By their briefing, the parties are aware of other issues presented which issues may not arise on new trial, and the same are not ruled at this time.

The judgment is reversed and the case is remanded for new trial.

All concur.


text:
    Nelson R. RUFF, Respondent, v. INTERSTATE BOOK MANUFACTURERS, INC., Appellant.
    No. KCD 28189.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Robert L. Driscoll, Kansas City, for appellant; Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.
    Roger M. Phillips, Kansas City, for respondent; Shapiro, Polsinelli, Schulte, Wehrman & Welte, P. C., Kansas City, of counsel.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Upon Count III of his petition for damages for breach of contract, plaintiff filed a motion for summary judgment which was granted him in the amount of $13,429.16 and interest in the amount of $1,243.54. The issue is whether plaintiff has shown by unassailable proof that he was entitled to summary judgment as a matter of law. Rule 74.04(h); Whited v. National Western Life Ins. Co., 526 S.W.2d 364, 366[2] (Mo. App.1975), and cases cited. Resolution of the issue requires a construction of plaintiff’s written sales representative agreement between him and defendant; and a consideration of the depositions of plaintiff and defendant’s witnesses.

Plaintiff pleaded, in Count III, that about November 1, 1969, he entered a sales representative agreement with defendant wherein he agreed to sell books and other products on a commission basis representing the difference between the net price of yearbooks manufactured by defendant and the retail price for which yearbooks were sold by plaintiff. That he did perform his contract obligations and sold books and other products through the middle of October, 1972, when he terminated his employment. That defendant owed him $1,142.89 commissions because of sales made in 1971 and 1972; and that further plaintiff made sales and secured at least 17 orders for defendant during 1972 which were paid to defendant in the summer of 1973, upon which commissions were due plaintiff and were not paid him. That defendant disregarded plaintiff’s repeated requests for accounting and payment, and “2. The retention by the defendants of the moneys due and owing the plaintiff constitutes a breach of the said contract and sales representative agreement between the plaintiff and defendant, as a result of which, plaintiff has been injured in the amount of $20,000.” Judgment for that amount was prayed.

As here pertinent, defendant admitted entering the written sales agreement, “the terms of which speak for themselves” with plaintiff, and denied the allegations of Paragraph 2 (supra).

The November 1, 1969, Sales Representative Agreement had these provisions: “3. Representative hereby agrees, during the life of the contract, to devote his time and best endeavors to the business of the Company * * *“5. Representative shall receive as his entire compensation for all services rendered by him under this agreement or otherwise as an employee of the Company, a commission representing the difference between the net price of the yearbooks as designated by the Company and the retail price for which the yearbook was sold by the Representative. The Company agrees to advance Representative $200.00 dollars per week for one year or until such time as his commissions from the Company are equal to, or more than, the amounts per month advanced by the Company, whichever comes first.” “7. * * * Representative agrees that he will, within reason, call on all prospects in his territory, satisfactorily service contracts and orders procured through his efforts and make any and all calls requested or directed by the Company. Representative agrees that he will diligently attempt to sell the products of the Company and cover the territory assigned to him m a reasonable, diligent and prudent manner.”

It is plaintiff’s position that the provision of Paragraph 5 of the agreement, supra, that he “shall receive” compensation for services rendered entitles him, as a matter of law, to commissions on all sales made by him prior to the termination of his contract in October, 1972. He attaches little importance to the provision of Paragraph 7 requiring him “within reason, call upon all prospects in his territory, satisfactorily service contracts and orders procured through his efforts * * * ” saying that “it is clearly unreasonable to require one to service accounts after termination of employment.” Plaintiff concedes, in spite of his argument, that the servicing of contracts and orders, are a part of his job. If that is so, then what is “within reason” is a matter to be determined from all the facts and circumstances by the trier of the issue, and thus the issue is not one which should be disposed of by summary judgment.

The provisions of Paragraph 7 requiring the servicing of orders and contracts by plaintiff is a dependent covenant to that requiring defendant to pay him compensation because the latter covenant is conditioned upon and subject to the performance promised by plaintiff. 17A C.J.S. Contracts § 344, p. 330. Thus, the burden of proof is upon plaintiff to show that he has performed all the conditions and requirements imposed upon him by his contract. Giraldin Bros. Real Estate Company v. Stiansen, 315 S.W.2d 636, 640[6] (Mo.App. 1958), and cases cited; and Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407 (1943), where the contract provided for commissions on repeat orders “as long as you continue to use your best efforts to retain such business.” The court, ruling against plaintiff because the conditions of the contract were not performed by him, said, 170 S.W.2d 414[2-5] “ ‘where a special contract exists, in order to entitle the broker to recover, he must show that he has fully complied with the terms and conditions thereof; for otherwise he has not completed his undertaking and has earned no commission.’ (Citing case.)” And, ‘It is elementary law that, when a contract is made upon a certain named condition, a party seeking to recover under such contract must bring himself within such condition.’ * * * All contingencies upon which the agent’s compensation is dependent must be met before the agent is entitled to compensation.” Plaintiff’s cited and relied upon case of Mathews v. Knoll Associates, Inc., 388 S.W.2d 529 (Mo*.App.1965), may be distinguished because the contract contained no dependent covenant relating to plaintiff’s right of compensation. These cases above not only demonstrate that there were genuine issues of fact as to plaintiff’s performance so as to entitle him to commissions (or a portion thereof if trial proceeds on the alternatively pleaded theory of quantum meruit) but hold that the burden of proof as to his performance was upon plaintiff. This latter matter disposes of his Point I contentions that defendant did not plead, and therefore cannot rely upon defective workmanship, a counterclaim for damages, or a reduction of claimed commissions.

The depositions and affidavits before the trial court show these general facts: A school yearbook salesman generally obtains his orders during spring semesters, which are to be made up and delivered the following spring. In the fall semesters, the salesman works with school staffs on a regular basis to assist them in putting together materials needed by the publisher to print and assemble the final product. Plaintiff followed this pattern until he left defendant’s employment. Plaintiff had previously worked for another yearbook company, and after he left it, he did not receive full commissions on sales. Likewise, after he left defendant’s employment, another person assumed his duties. Furthermore, when plaintiff was employed by defendant in 1969, he took the place of another commission salesman who had already obtained yearbook orders, and he was informed that he would receive one-half of the commissions on previously signed contracts. These depositions and affidavits show there are factual issues to be determined as bearing on the intent of the parties to the contract, the custom of the yearbook business, and the extent of plaintiff’s performance. There is also a disputed factual issue to be determined by the trier of the fact as to whether plaintiff was the procuring cause from certain schools of yearbook orders.

The judgment is reversed and the case is remanded for trial on the issues raised by the pleadings.

All concur.