text:
    Cynthia DOWNING (Minich), Plaintiff-Appellant, v. Mark DOWNING, Defendant-Respondent.
    No. KCD 27882.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      Harry L. Porter, Marceline, for plaintiff-appellant.
    Robert G. Smith, Brookfield, for defendant-respondent.
    Before SHANGLER, P. J„ and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The mother, Cynthia Downing [now Mi-nich], appeals from an order divesting her of the permanent custody of the child, Gretchen, then three years of age. The motion of the father, Mark Downing, to modify the divorce decree pleaded three changes of circumstances: 1) that the dwelling place occupied by the mother and child was not fit for habitation, 2) that the movant father was on occasion denied visitation and, 3) that both the mother and Michael Minich, her present husband, “have a general reputation as users of certain narcotic drugs”.

The court after evidence entered the order:

Motion to Modify sustained and decree modified to award care and custody of child to defendant, to be maintained in home of defendant’s parents, with right of reasonable visitation to plaintiff.

There was no substantial evidence to support the contentions that the child was not properly sheltered, or that the father was ever unreasonably denied visitation. We examine, therefore, whether the order of modification can be supported by proof that the mother and her new husband had an experience and reputation of drug use inimical to the welfare of the child.

The parties married when very young and their union was stormy and short. Cynthia was 17 years of age and still in high school; Mark was of comparable age. He drank excessively, they quarrelled, and in this temper, he frequently pommeled her. The child was born to them while Cynthia still attended the high school in Marceline. The paternal grandparents sat with the child, thus Cynthia was enabled to complete her high school diploma. After about a-year-and-a-half of marriage, the parties were divorced in December of 1972. The custody of the child, Gretchen, was awarded the mother with grant of reasonable visitation right to the father. As we have concluded, there is no serious evidence that Mark was ever unreasonably denied the exercise of that right. Nor, despite some general perjorative conclusions to the contrary, did the witnesses prove that the physical surroundings accorded the child were in any manner detrimental to her well-being.

After the divorce, Cynthia and the child continued to occupy an apartment unit leased from the Housing Authority of the City of Marceline. She remained in occupancy until May of 1973, some five months after the marriage was dissolved by divorce. During this period, complaints came to Jake Young, Executive Director of the Housing Authority, of noisy parties in the apartment occupied by Cynthia, and that the cars of the party-goers were parked in such number as to become a traffic jam. Mr. Young, called as a witness for the father, candidly acknowledged that the street was narrow and that only a few cars parked there would impede traffic. His own observations were that the company consisted of relatives and young friends on school vacations or home for the week-end. He noticed a particular red Ford parked nearby often, there in the evening and also in the morning when he came by again. He wrote her a letter of request that she control the loudness of the music from her apartment and that she show consideration for the parking needs of her neighbors. These conditions persisted, so in May of 1973 Cynthia was requested to vacate the premises by the Housing Authority. Mr. Young was emphatic that there were no complaints of immorality, but only of loud noise and traffic congestion.

The testimony of Mr. and Ms. Rauer, the next-door neighbors at the Housing Authority accommodations, reiterated the complaints of noise and car congestion. Their apartment was joined to the unit occupied by Cynthia by a common living room wall. Ms. Rauer also noticed numerous male visitors come in the evening and leave in the morning. She noticed also that on the day Cynthia and Mark parted, Cynthia had been battered and was crying.

The first intimation of drug use came from Crystal Smith, a witness for Mark Downing. She had come to a number of parties at the apartment where Cynthia smoked marihuana, as did she. Then this colloquy followed:

Q. Did you ever have occasion to using any stronger or harder drugs?
A. Not using it, no.
Q. Did you see any in her possession or any at the party?
A. Yes.
Q. What did you see?
A. There was some mescaline I think is what it was.
Q. What were they doing with this mescaline?
A. She wasn’t but they were putting it in capsules.

She testified further that on the occasions when she and Cynthia were alone, Cynthia never smoked marihuana, and she concluded that the guests at the parties were the source of supply. She was at the apartment on the day Cynthia and Mark separated; he had been drinking, they quarrelled, fought, and he struck and bruised Cynthia.

Another witness called by Mark Downing also had been at the parties. Jerry Jordan testified that there was drinking and smoking of marihuana, but no use of harder drugs. He never saw Cynthia smoke the substance. Also presented was Dennis Veatch, the Deputy Sheriff from Kirksville who served the civil process upon Cynthia for the modification proceeding. It was elicited from him that the reputation of Michael Minich for abiding with the law was not very good; that opinion, in turn, derived from an investigation he had made of drug use, but which discovered no wrongdoing by Minich.

The evidence of his parents was also presented by Mark Downing. They had cared for the child while Cynthia attended classes in completion of her high school work. The elder Downing is a grocer in Marceline. He and his wife own and occupy a comfortable eight-room home. They enjoy good health and would eagerly accept the custody of the child, if ordered.

The evidence of appellant consisted in her own testimony and that of her present husband, Michael Minich. They both admitted to infrequent marihuana use when they were together and during social gatherings; she on less than ten occasions, and he about a dozen or so timqs. They both insisted that the experiment had been discontinued altogether after their marriage in February of 1974. She testified to episodes of drunken abuse from Mark during their marriage, including a discharge of firearm while in that condition. She admitted to frequent visitors at the Housing Authority apartment on week-ends when the child was on visitation with Mark and his parents. She admitted also to intimate relations with Michael, after the separation and divorce but before her marriage to him. These liaisons were on week-ends at her apartment when Gretchen was not there.

At the time of the hearing, Michael Mi-nich was twenty-three years of age. [Our reckoning shows Cynthia then was twenty-one.] He was graduated from Northeast Missouri State University at Kirksville as the top ROTC student and was commissioned a second lieutenant in the Army. Cynthia and Michael removed residence to Kirksville when they married and in due time he was assigned to Fort Ord, California. His pay is some $830 per month and he is allowed quarters, post exchange use, insurance benefits for his family and all the other perquisites which governmental service offers. He has known Mark Downing since high school and attended a party, specified in the evidence, where Mark and everyone in the gathering were smoking marihuana. He loved the child Gretchen and was ready to devote himself properly to the welfare of the child should custody be retained in his wife Cynthia.

The judgment of the trial court equivocally orders the modification of custody in favor of the father, Mark, “to be main-tamed in the home of [Mark’s] parents”. It is not clear whether the order imports a finding of fitness of the natural father, Mark, for the custody of the infant girl, or whether it intends the grandparents as primary custodians. Mark testified that he proposed to remain in the home of his parents until he remarried. In that likely eventuality, and if — as one assumes — Mark and his new wife establish a separate household, the order is ambiguous as to whether the child shall remain with the grandparents.

If the order intends Mark as the primary custodian, it subsumes a finding of his fitness for that purpose, a finding clearly against the weight of the evidence. The evidence shows Mark to be cruelly abusive when drunk, and frequently in that condition. His conduct when inebriated is unpredictable, and it would be a needless experiment to commit the welfare of the infant girl to such uncertainty.

If, on the other hand, the order intends the custody in the grandparents, it imports that the natural mother, Cynthia, is unfit for the role, a finding clearly against the weight of the evidence and incongruous with the governing principles of law.

There is a presumption of sorts that a mother is better fit for the custody of a child of tender years. Johnson v. Johnson, 526 S.W.2d 33, 37[7] (Mo.App.1975). The rule is otherwise broadly stated that, all else equal, the custody of a child of tender years will be given to the mother. L. D. H. v. T. P. H., 492 S.W.2d 857, 859[1-3] (Mo.App.1973). The evidence in such a proceeding does not often yield a balanced equation, however, so each case must rest on the equity of its own circumstances. And while the trial court may place a child with a third party, that course of action will be adopted only if both natural parents are unfit, incompetent, or unable to care for the child, or if the welfare of the child manifestly calls for a different disposition under the circumstances shown. Stockton v. Guthary, 415 S.W.2d 308, 312[7, 8] (Mo.App.1967).

It is the rule that the morals and character of a parent are proper subjects of inquiry when the custody, and hence the welfare, of a child is under consideration. And since a step-parent also becomes a model for the behavior of the child, his morals and character are valid concerns of the court which entrusts custody to that household. Feltman v. Feltman, 514 S.W.2d 353, 354[7, 8] (Mo.App.1974). The most conclusive evidence that Cynthia and Michael used marihuana was their own testimony. It was a dalliance to which they both candidly admitted, but then put behind them after they married. There was no intimation that either of them experimented with any other drug or narcotic or kept or allowed such a substance on the dwelling premises. The testimony of Crystal Smith that on one social gathering at the Housing Authority apartment, a guest was putting into capsules “some mescaline I think is what it was”, is too vague to prove the point. The testimony of other witnesses presented by Mark on the same issue all agree that marihuana was the only illicit substance used by Cynthia or any one else at those gatherings.

The movant pleaded and elicited testimony on the general reputation of Cynthia and Michael as users of “certain narcotic drugs”. Reputation, of course, is the estimate the community has formed of the character of the person. 5 Wigmore on Evidence, § 1608 [Chadbourn rev. 1974]. The occasional use of marihuana during their pre-marriage was an admitted trait of the moral characters of both Cynthia and Michael, therefore any testimony of their reputations for such a practice was secondary to that conceded reality. Even so, much of such evidence offered by the mov-ant lacked the quality implied by reputation: “the definite and final formation of opinion by the community”. Wigmore, op. cit, § 1611. The testimony of Deputy Sheriff Veatch that — after he had investigated Michael for drug abuse and found no culpability — his general reputation in Kirksville as a law-abiding citizen “wasn’t very good”, was obviously his personal estimate rather than the community judgment.

The question remains: whether a puerile curiosity about marihuana, since abandoned, must forever disqualify a parent, otherwise fit, from responsible custody of her child. While the violation of law cannot be justified, the evidence shows that the use of marihuana was endemic among the youth of that community, including Cynthia, Mark and Michael. The evidence also shows that Cynthia and Michael have discontinued the use, and now enjoy a stable home and serious purpose. Their home is suitable for the child and custody by the mother is in her best interest and for her best welfare. Certainly, as against the claim of grandparents, the right of the natural mother fit for custody is paramount.

The judgment of the trial court is reversed and the cause remanded with directions that the custody of the child Gretchen be restored to the mother and that the award of $100 per month child support and the right of reasonable visitation to the father, Mark, be reinstated, all as ordered by the court on December 4, 1972.

All concur.

      . § 195.020, RSMo 1969, proscribes possession of certain controlled substances, including marihuana.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    Grover C. WILCHER and John E. Robertson, Plaintiffs-Appellants, v. Thelma McGUIRE, Defendant-Respondent.
    No. KCD 27914.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      William J. Hill, Kansas City, for plaintiffs-appellants.
    John C. Milholland, Harrisonville, for defendant-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special JJ.
   TURNAGE, Presiding Judge.

Plaintiffs, Wilcher and Robertson, brought suit for specific performance of an alleged contract for the sale of real estate against the defendant owner, McGuire. McGuire raised as her primary defense the Statute of Frauds, Section 432.010, RSMo 1969. The trial court found for the defendant.

On this appeal plaintiffs urge the auction sale conducted was (1) “without reserve” and thus the sale was completed at the time the auctioneer knocked down the high bid, and (2) the requirements of the Statute of Frauds were fully met. Affirmed.

McGuire entered into a written agreement with Dick Dewees for Dewees to sell two-hundred acres of land by auction. The agreement provided: the selling price would be determined by competitive bidding at the auction; the land would be offered in three tracts and also as a whole; the sale was subject to twenty-four hour confirmation and acceptance by the owner.

Prior to the day of sale, Dewees drew a sale bill which was later circulated to prospective buyers and was available on the land. This sale bill advised the two-hundred acres would be offered in three tracts — an east, center and west tract. The east and center tracts each contained sixty acres and the west tract contained eighty acres. The sale bill also stated “land sells subject to confirmation of owner. Announcements made sale day take precedence.”

On the day of sale Dewees opened the sale by making introductions of some people attending, including Charles Darby, who was Mrs. McGuire’s attorney, and Charles Hight, an attorney from Harrisonville who was hired by Dewees to handle the contract of sale with the high bidder. Dewees further stated “many of you know the reason for the sale. Mrs. McGuire bought this property last September and, just to be blunt, she has got a mortgage payment due on the first of June that she can’t meet. The only way she can meet it is to sell off part of the property or sell off all of the property. As a result, the property is for sale and some or all of it is going to sell today.”

After the bidding was complete on the three tracts and on the whole, Wilcher and Robertson were the high bidder on one of the three tracts, and on the whole. Dewees told the crowd that he, Mr. Darby and Mr. Hight, would go into the house and confer with Mrs. McGuire and determine what she wanted to do and the high bidder would thereafter be advised. Thereupon a conference took place in the house and the result of that conference provides the only conflict in the evidence in the case. Dewees testified that Mrs. McGuire, after about a two-hour conference, decided to sell the east and west tracts and to obtain a loan on the center tract. He stated this would give her sufficient funds to meet the impending mortgage payment. Dewees stated that he and Mr. Hight went outside and summoned Wilcher and Robertson inside the house after this decision was made and advised them their bid was being accepted on the one tract only on which they were the high bidder. Thereupon, Mr. Hight completed the blanks in the contract he had previously drawn to show the purchase price with the names of Wilcher and Robertson as the buyers and the description of the tract they were to purchase. Robertson and Wilcher signed the contract and Robertson wrote a check for ten percent of the purchase price as a down payment. Thereupon McGuire suddenly announced she had to leave and left the house. Thereafter the contract was not signed by McGuire or anyone on her behalf. No one accepted the down payment from Robertson or Wilcher with the result Robertson retained the check he had previously written. The next day Robertson and Wilcher were notified McGuire was not going to sell the tract to them.

McGuire testified that after Dewees, Hight and Darby came into the house, a long discussion ensued as to what should be done. She stated Dewees and Gearhart, a real estate broker working with Dewees, attempted to pressure her into accepting some or all of the bids by telling her if she did not sell, the buyers would get away and she would lose her land. McGuire maintained she never stated she would accept any bid but only said she wanted to pray about the matter and reach a decision the next day. She stated she left the house without ever seeing the contract or signing it.

Plaintiffs’ main argument centers on the statement made in the sale bill “announcements made sale day take precedence.” Plaintiffs argue this nullifies the statement also contained the sale bill “land sells subject to confirmation of owner”, and when Dewees announced at the beginning of the sale that McGuire had to sell the property to meet a payment and part or all of the property was going to sell on that day constituted a true auction sale without reserve. The words “without reserve” are words of art and mean that in making such an announcement the owner “enters into a collateral contract with all persons bidding at the auction that he will not withdraw the property from sale, regardless of how low the highest bid might be (citations omitted). Therefore, the highest bona fide bidder at an auction ‘without reserve’ may insist that the property be sold to him or that the owner answer to him in damages (citations omitted).” Drew v. John Deere Company of Syracuse, Inc.,, 19 A.D.2d 308, 241 N.Y.S.2d 267, 269[1, 2] (1963).

Thus, in this case the plaintiffs argue that by stating all or part of the property would be sold on that day, the auctioneer was stating the sale was to be “without reserve”.

It should first be noted that “an auctioneer’s authority, when based upon an express contract or instrument, is governed by its terms.” 7 C.J.S. Auctions and Auctioneers, ¶ 6a. Here the authority which the auctioneer had by his written agreement with McGuire was that any sale he made was subject to her twenty-four hour confirmation and acceptance. Thus, Dew-ees had no power or authority to make any sale without the confirmation and acceptance by McGuire. Further, it has long been the rule in Missouri that “[t]he printed conditions under which a sale by auction proceeds cannot be varied or contradicted by parol evidence of the verbal statements of the auctioneer made at the time of sale, without it be for the purpose of proving fraud.” Chouteau et als. v. Goddin et al., 39 Mo. 229, 249 (1866).

The provision in the sale bill that the land would sell subject to confirmation by the owner was a recognition of the fact the owner had only authorized a sale “with reserve” in her agreement with Dewees. He could not avoid that restriction placed by the owner on his power in conducting the auction by either a statement in the sale bill or by an announcement made on sale day. The statement “announcements made sale day take precedence” could not and did not modify the previous statement that the sale was subject to the confirmation of the owner.

Thus, Dewees had no authority to change the nature of the sale by any announcement he made on the sale day from one being “with reserve” to one “without reserve”. However, aside from his want of authority, his statement that part or all of the property would be sold that day would not constitute a sale “without reserve”. As stated in Drew at 241 N.Y.S.2d 270[3], “The statement that the sale would be made to the highest bidder is not the equivalent of an announcement that the auction would be ‘without reserve’ . . ”

Under all of the law applicable to auction sales, the announcement made by Dewees did not convert the sale to one “without reserve”. In this situation, McGuire had the right to refuse to make any sale prior to the time she accepted any bid. Plaintiffs’ first point is, therefore, without merit.

Plaintiffs next contend the evidence showed McGuire confirmed the sale in compliance with the Statute of Frauds. In this argument, plaintiffs contend first, McGuire changed the sale to be one without reserve. This contention has just been ruled adversely to plaintiffs. Plaintiffs next contend McGuire must be held to an acceptance of their bid because of their version of the conference. They contend the conference took place in the presence of McGuire and her attorney Mr. Darby, and statements were made that McGuire would sell to plaintiffs the single tract on which they were the high bidder and the contract was completed and signed by them without protest on the part of either McGuire or her attorney. This argument seems to reduce itself to a statement that by her silence McGuire accepted the plaintiffs’ bid.

It should be observed that auction sales of real estate are subject to the Statute of Frauds. Dunham v. Hartman, 153 Mo. 625, 55 S.W. 233 (1900), 7 Am.Jur.2d Auctions and Auctioneers, § 34.

Plaintiffs did not produce any evidence of the signing of the contract with Wilcher and Robertson by McGuire or by anyone on her behalf. Plaintiffs contend, however, that the typing in the contract of McGuire’s name as being the seller was sufficient to take the agreement out of the Statute of Frauds. This could not satisfy the Statute because there was no writing by which McGuire authorized any contract to be made with plaintiffs. The Statute requires a writing to be signed by the person to be charged or by someone authorized by such person. The authorization to sign a contract must also be in writing by the terms of the Statute. This is also the holding in Dunham v. Hartman, supra.

Since plaintiffs could not show any agreement signed by either McGuire or anyone authorized in writing to sign an agreement in her behalf, there was no agreement which plaintiffs could enforce because of the Statute of Frauds. The agreement signed with Dewees only authorized him to conduct, an auction sale with McGuire to confirm and accept such sale at a later time. That agreement did not authorize anyone to enter into any agreement for sale of McGuire’s land which would bind her. Absent an agreement signed by McGuire or in her behalf by someone authorized in writing to do so, plaintiffs may not enforce their alleged agreement.

The scope of review of this equity case requires that the judgment be affirmed unless there is no substantial evidence to support it, or it is against the weight of evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). There is not only substantial evidence in this case to support the judgment, but there is an absence of evidence to support any other judgment.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    TRANSWESTERN INDUSTRIES, INC. and Institutional Agencies Corporation, Appellants, v. Lawrence E. SHUE, Respondent.
    No. KCD 28037.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    C. Brooks Wood, Kansas City, for appellants.
    Michael Paul Harris, St. Joseph, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This case was initiated by a petition in four counts. Institutional Agencies Corporation sued as plaintiff in Counts I and II, while Transwestern Industries, Inc., was plaintiff in Counts III and IV. Defendant Shue filed a motion to dismiss each of the four counts for failure to state a cause of action and the trial court sustained that motion as to Counts I and II. Transwest-ern then voluntarily dismissed Counts III and IV. Institutional Agencies appeals the order of dismissal only as to Count I.

Under the facts alleged in Count I, taken together with those shown by the exhibits attached and incorporated therein by reference, Shue and Transwestern entered into a partnership on February 1, 1971, to conduct an agency for the sale of life insurance, under the partnership name Consolidated Agencies. The partnership agreement provided that the partnership capital should be furnished and all profits and losses should be shared equally.

Thereafter, on September 20, 1971, Shue and Institutional Agencies (which is a wholly owned subsidiary of Transwestern) executed a joint note to National Fidelity Life Insurance Company for $15,000, payable in twelve months with interest at 7% per an-num. The makers pledged as collateral for the loan the assets and renewal commissions of Consolidated Agencies and Institutional Agencies and the personal assets of Shue.

The petition alleges that after the note became due, Institutional Agencies was forced to pay the entire principal of the note with interest from September 20,1971, to October 31,1972, the total payment coming to $16,169.72. The petition further alleges that Shue is jointly liable for payment of the note and interest and that Institutional Agencies is therefore entitled to recover one-half of the payment; that Institutional Agencies has made demand on Shue for reimbursement; but that Shue has failed and refused to pay. Count I of the petition therefore prays judgment against Shue for $8,084.86, with interest from the date of demand.

Institutional Agencies seeks recovery of that sum on the theory of equitable right of contribution. It relies upon the principle that although it was bound to pay the whole amount of the note obligation to the payee National Fidelity Life Insurance Company, it was only bound to pay a proportional part of that debt as between itself and its co-obligor Shue. Shue does not deny the general right of one co-obligor who has paid the whole debt to contribution from the other. However, he claims that recovery on that theory is limited to only such amount as represents an excess of the common indebtedness over Institutional Agencies’ “proportional share.” Van Petten v. Richardson, 68 Mo. 379 (1878); Yore v. Yore, 240 Mo. 451, 144 S.W. 847 (1912). Shue contends that Institutional Agencies has not brought itself within this rule because it has made no allegation of what proportion each party had agreed to pay. In this respect, he states in his brief: “Notwithstanding the fact that Appellant plead in paragraph 5 of Count I that it paid the entire amount due on the note when the obligation matured, it is a mere conclusion on Appellant’s behalf when it states in paragraph 6 of Count I that Appellant is ‘therefore entitled to recover one-half of said payment.’ Not only must Appellant plead that it paid to the payee a certain sum of money in accordance with said note, but also that said amount was more than Appellant’s proportionate share.”

She’s position is fallacious. The legal rule is that absent proof to the contrary, it is presumed that co-obligors received equal benefit from the obligation and must contribute equally to its payment. 18 Am.Jur.2d Contribution § 19, p. 33; 11 Am.Jur.2d Bills and Notes § 588, p. 655; see Allison v. Dilsaver, 387 S.W.2d 206, 213 (Mo.App.1965). Institutional Agencies carried its full pleading obligation in this case when it alleged the joint execution of the note, its payment in full, the demand upon Shue for contribution, and Shue’s refusal. Those allegations presumptively entitled it to recover from Shue one-half of the payment made by Institutional Agencies to National Fidelity Life Insurance Company. 18 Am.Jur.2d Contribution § 102, p. 139; 18 C.J.S. Contribution § 13 d., p. 24. If there was any contrary agreement between the parties or any other equitable reason why Shue was not responsible for a contribution in that amount, the burden of alleging and proving such facts was upon Shue. 18 Am.Jur.2d Contribution § 102, p. 139; 18 C.J.S. Contribution § 13 e., p. 25.

The above principles have been applied in situations virtually identical to that in the present case. In Gaster v. Waggoner, 26 Ohio 450 (1875), a judgment was entered against the plaintiff and the defendant jointly, which was paid by plaintiff alone. He then sued defendant for contribution alleging the rendition of the judgment, the payment by plaintiff and that defendant thereby become indebted to plaintiff for one-half. The defendant demurred to the petition and the demurrer was overruled. On appeal the defendant argued that the petition was defective in that it had to show that the defendant was beneficially interested in the consideration of the joint liability upon which judgment was obtained. The action of the trial court was affirmed. The Ohio Supreme Court held that a motion to make more definite and certain would have been proper but that the petition was good against demurrer:

“As between joint debtors, there is no presumption of law that either is primarily liable for the debt; nor is there a presumption that any fact or relation between them exists which would show that each is not equitably bound, as between themselves, to pay his proportionate share of the debt. If there be such primary liability, or if there be no equitable obligation as between themselves to pay proportional shares, the facts which rebut the presumed equity should be set up by way of defense, and need not be negatived in a petition for contribution.”

Similarly in Owens v. Blackburn, 161 App.Div. 827, 146 N.Y.S. 966 (1914), one co-maker of a note brought suit for contribution against two other co-makers. The petition set forth the note, that plaintiff was compelled to pay, that he paid in full and had demanded that each of the defendants contribute one-third of the amount so paid. That petition was held to be sufficient:

“The three makers were liable to the payee both jointly and severally, but presumptively, as between themselves, their liability was joint, and equity requires that they bear the burden equally, and that those who have not paid shall contribute to the plaintiff, who has been obliged to pay the entire amount for which all three makers were liable, [citing cases]
“It was not incumbent on the plaintiff, in the circumstances, to allege an agreement for contribution, for that is an obligation implied and enforced by courts of equity, [citing cases]”

Count I of the petition in this case was sufficient to state a claim upon which relief could be granted. The judgment dismissing that count is therefore reversed and the cause is remanded with instructions to reinstate Count I for further proceedings.

All concur.


text:
    STATE of Missouri, Respondent, v. John E. TURNER, Appellant.
    No. KCD 28062.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      Thomas M. Larson, Lee Nation, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was charged by information with carrying a concealed weapon “loaded with gunpowder and leaden balls.” He was tried by a jury and convicted. Because the jury was unable to agree upon a punishment, the court fixed defendant’s punishment at three years imprisonment. He timely appeals, claiming: (1) that there was a fatal variance between the information and the verdict directing instruction, on the one hand, and the evidence on the other; and (2) that the State failed to introduce sufficient evidence to sustain the conviction. Affirmed.

On December 24, 1974, two Kansas City, Missouri Police Officers were riding in a patrol car near a tavern known as the Prestige Club when they met with an informant. He told the officers that a Negro male had approached him inside the club and tried to sell him a .38 caliber handgun. The informant described the suspect as being about six feet tall, weighing about 170 pounds, and wearing a brown Robin Hood hat and a long coat. He also told them that after the man had attempted to sell the handgun to him he saw the man go into a back room of the club used for gambling.

The officers requested backup assistance from a group of other patrolmen, and went to the club. When they arrived they entered through the front door, secured the tavern area, and went into the back room. As they burst through the door, one officer told everyone to stand and place their hands on a wall. He saw defendant reach under his jacket, which covered his torso, and remove a gun from the waistband of his trousers. The other officer saw defendant push his coat back two to three inches, which exposed the handgrips of a revolver, and then defendant pulled the gun from his waistband. This officer immediately reached out and grabbed defendant’s arm, which caused defendant either to throw or to drop the gun to the floor. The first officer inspected the gun and discovered that it was unloaded. Defendant was then arrested for carrying a concealed weapon.

Prior to trial, defendant filed motions to suppress evidence of the seized gun and to disclose the identity of the informant. During the hearing on these motions, the officers gave widely different versions of how they met with the informant and how he told them the defendant was carrying a concealed weapon. According to one officer, they were sent by the police dispatcher to meet with the informant at 27th and Cleveland. When they arrived the informant approached the car, got in with the officers and told them that the defendant was carrying a concealed weapon in the Prestige Club. The other officer testified that they were driving along 27th Street at approximately Jackson when the informant came out, flagged them down, and told them to meet him at 27th and Cleveland. When they arrived at 27th and Cleveland, one officer left the patrol car and got into the informant’s vehicle. The other officer parked the patrol car parallel to the informant’s car and remained in the patrol car. The officer who entered the informant’s vehicle did not know whether his partner had actually overheard the informant tell him that defendant was carrying a concealed weapon. From this point on the testimony of the two officers is largely the same.

I.

The verdict directing instruction given the jurors told them that they must find from the evidence that the .38 caliber revolver defendant was carrying was “loaded with gunpowder and leaden balls” in order to find him guilty of carrying a concealed weapon. The evidence introduced by the State indicated that the gun was not loaded. The defendant contends that this variance between the evidence and the instruction allowed the jury to consider a false and prejudicial fact in reaching the verdict, and that this constitutes prejudicial error entitling him to a new trial. In support of this claim he relies primarily on State v. Agee, 474 S.W.2d 817 (Mo.1971), where, after first noting that as a general proposition of law an instruction should not be given in the absence of supporting evidence, the court went on to hold that there was evidence to support the there challenged instruction. Defendant also interweaves into this point a complaint that the proof fails to support the allegation of the information that the gun was loaded.

Defendant’s challenge here is similar to one recently considered by this court in State v. Scott, 534 S.W.2d 537 (Mo.App.1976). In that case the defendant contended that the verdict directing instruction was erroneous as not supported by the evidence because it required a finding that money taken in a robbery belonged to one Harold Tramell and was taken with intent to deprive him of his property, while there was no evidence showing that the money belonged to Tramell. The court noted that while generally an instruction broader than the evidence or at variance with the charge is improper, the error may be harmless if the defendant’s cause is not prejudiced. In that case there was proof that the money was taken from the person in charge of Harold’s Furniture Store against her will and that the money did not belong to defendant. Under the given instruction this evidence was sufficient to support findings that the defendant took money not belonging to him with the intent to deprive the owner of his property. Thus, the State was not required to prove the money belonged to Tramell, and the lack of such proof was not prejudicial to defendant’s cause.

In the case at bar, it must be conceded that there is no evidence to support a finding that the concealed weapon was loaded at the time of defendant’s arrest. In fact, the only evidence in the record is that the weapon was empty. For this reason the instruction was broader than the evidence and was improper. Nevertheless, since it was not necessary to show that the concealed weapon was loaded in order to prove the crime of carrying a concealed weapon, State v. Dorsey, 491 S.W.2d 301 (Mo.1978), it is obvious that under the holding in Scott, words in the information and in the instruction to the effect that the concealed weapon was “loaded with gunpowder and leaden balls” are mere harmless surplusage.

The lack of prejudice to defendant is emphasized by the nature of his defense. Only he and his wife testified in his behalf, and both of them denied that defendant had possessed the gun. They disputed the prosecution witnesses on the fact of possession, with no regard to whether the gun was loaded or unloaded. The condition of being loaded or unloaded not only had no legal significance, but additionally it never became a contested factual issue at any time. The surplus language in question could not have affected defendant’s preparation for trial or prejudiced the jury determination.

II.

Defendant also contends that the police officers’ testimony concerning the informant’s information was so contradictory that the entirety of their testimony cannot be believed. Since their testimony is the only evidence of record establishing that defendant possessed the .38 caliber revolver and that it was being carried concealed, defendant argues that the alleged defective nature of this testimony destroys the State’s case.

In support of this position defendant relies exclusively upon State v. Williams, 481 S.W.2d 1 (Mo.1972), where the court held that the State failed to make a submissible case to prove a concealed weapon charge because the State’s sole witness on the issue of concealment told the court several different versions of how and where the weapon was “concealed” when he discovered it. The court noted that:

“ ‘Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, no case is made, and the jury should not be permitted to speculate or guess which statement of the witness should be accepted.’ ”

Defendant’s reliance on Williams is misplaced. Williams involved the contradictory testimony of a single witness exclusively relied upon by the State to prove the critical issue of concealment. In the case at bar, defendant asserts that the testimony of two State witnesses conflict. Traditionally in such cases “ ‘[mjerely because testimony is conflicting its probative force is not destroyed.’ ” State v. Cox, 478 S.W.2d 339, 341 (Mo.1972). So long as there is sufficient evidence in the record to support the conviction, Missouri courts allow the fact finder to determine which particular State’s witnesses it chooses to believe, since it is the fact finder’s province to resolve any conflict in the evidence. In State v. Smart, 328 S.W.2d 569 (Mo.1959), a second degree murder case, the court found the testimony of one of the State’s witnesses that the defendant had walked up to the victim, “stuck the gun in his face,” and after a 10-second pause shot the victim, was sufficient to support a jury’s finding that the defendant was guilty, even though other State’s witnesses told contradictory stories.

Aside from that fatal flaw, defendant’s point otherwise lacks merit. It must be noted that the testimonial inconsistency relied upon by defendant to destroy the probative value of the police officers’ testimony occurred in the course of the preliminary hearing on motions to suppress and to disclose the identity of the informant. No point is made on this appeal respecting the overruling of those motions, and the evidence taken in respect to those motions is therefore now irrelevant. The testimony of the officers at the trial proper is remarkably similar. The primary difference between their trial testimony is that one officer told the court that defendant threw the revolver down, while the other testified that he dropped the weapon. Since this and the other “inconsistencies” relied upon by defendant bear upon the credibility of the witnesses and not upon legal sufficiency of their testimony, his argument is without merit.

Affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Donald Clifton CLEVENGER, Appellant.
    No. KCD 28068.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    James S. Stubbs, Chillicothe, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

Defendant, although separately charged and tried, was found guilty of burglary, first degree, with intent to commit felonious assault, while acting in concert with James Guy Persinger. The jury which found defendant guilty was unable to agree upon his punishment and the same was fixed by the court at eight years imprisonment.

Defendant’s sole point on appeal challenges the sufficiency of the evidence to prove (1) that he “or one with whom he acted in concert intended to commit felonious assault” or to prove (2) “that he had no right to enter the house on the occasion in question.”

Defendant’s accomplice,- James Guy Per-singer, was separately charged, tried and convicted at an earlier date. Persinger appealed, State v. Persinger, 533 S.W.2d 685 (Mo.App.1976), and, although couched in slightly different language, leveled substantively identical challenges against the sufficiency of the evidence to sustain his conviction. Regarding the bifurcated aspects of the challenges to the sufficiency of the evidence made by both defendant and Persinger, the attendant facts undergirding each are so substantially identical as to be equatable. In Persinger, supra, this court, adversely to Persinger, met and answered the same attacks presently leveled by defendant against the sufficiency of the evidence.

After examining the transcript and considering the briefs and authorities, this court is convinced that the verdict of guilty returned by the jury in the instant case was supported by substantial evidence in all respects, and that no error of law appears. A prolix opinion in this case would have no precedential value. Accordingly, the judgment is affirmed. Rule 84.16(b).

Judgment affirmed.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Bruce Allen CHARLES, Appellant.
    No. KCD 28081.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      Thomas M. Larson, Public Defender Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Bruce Allen Charles (hereinafter referred to as defendant) was charged under the Second Offender Act with the crime of robbery in the first degree by means of a dangerous and deadly weapon (Section 560.-120, RSMo 1969), tried by a jury and found guilty, and sentenced by the court to twenty-five years imprisonment. Defendant stakes all right to appellate relief on a single point — refusal by the trial court to instruct the jury on attempted robbery after being requested to do so and proffered an appropriate instruction. An explanatory prelude will serve to place the point in sharper focus. Defendant contends that the evidence presented a question of fact as to whether a robbery was actually consummated; therefore the trial court erred in not giving his requested instruction on attempted robbery.

Facts emanating from the testimony of various witnesses show that on the evening of February 20,1975, three men entered the Reveo Drug Store at Prospect and Independence Avenue, in Kansas City, Missouri, and announced a holdup. Defendant was the first man in the store and was followed by the other two men. All three men were armed with and displayed pistols. Defendant approached the pharmacist’s service counter, jumped over it, proceeded to the pharmacy area and asked a pharmacist’s intern where the money and drugs were located. The pharmacist’s intern, Sal Mus-sorici, thereupon proceeded to unlock the narcotics cabinet and cash drawers. Defendant began putting the narcotics and cash in a bag. Shortly thereafter, one of the robbers warned that the police had arrived. The police officers entered the store, grabbed one of the robbers near the door and, when they saw another robber pop up from behind the cash register with what appeared to be a pistol in his hand, shots were fired. The robber behind the cash register was wearing a ski mask. Defendant was later apprehended in the pharmacy section of the drug store. A ski mask was lying at his feet when he was arrested. Two pillow cases, one inside the other, containing drugs and money, were recovered from the floor beneath the narcotics cabinet. Defendant does not question the sufficiency of this evidence, and there is no question but that it constituted substantial evidence to support the guilty verdict returned by the jury.

As previously mentioned, defendant’s sole claim is that the evidence presented a question of fact as to whether money and property belonging to Reveo Drug Store was taken from the person or in the presence of Sal Mussorici, as charged in the information. He points to the testimony of Janet Parisi, a sales clerk, that she did not see any drugs or money actually carried away from the pharmacy area, to the testimony of Sal Mussorici that he did not actually see anything taken from the drug cabinet or carried away from the pharmacy area, and to the testimony of the arresting officers that, when searching the suspects, no money or drugs were found, as raising an issue of whether the crime of robbery was consummated, or whether the scheme was foiled before manucapture of any money or goods occurred. Such undergirds defendant’s claim that the trial court erred in refusing to instruct the jury on attempted robbery. Novel as it may be, it fails to constitute any basis for relief.

Section 556.160, RSMo 1969, provides: “No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.” The language “when it shall appear” found in this statute has been previously interpreted by the Missouri Supreme Court. These words, as employed, “do not mean when it shall appear conclusively or without dispute; they mean when it shall appear from substantial evidence.” State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42, 55 (1937). See also: State v. White, 35 Mo. 500 (1865). Substantial evidence is that from which a trier of facts could reasonably find the issue in harmony therewith. State v. Taylor, 445 S.W.2d 282 (Mo.1969); State v. Aguilar, 429 S.W.2d 754 (Mo.1968); and State v. Whitaker, 275 S.W.2d 316 (Mo.1955). A trier of facts may find an issue in harmony with certain evidence when it is not inherently incredible, self-destructive, or completely impeached by contradictory evidence, and is such that reasonable minds might believe it. State v. Harris, 295 S.W.2d 94 (Mo.1956).

Under Section 556.160, supra, conviction for attempt to commit an offense can only stand when there is no substantial evidence that the crime involved was actually consummated. Thus, the legal propriety of instructing on attempt is just the opposite to what defendant contends.

In this case there was substantial evidence that manucapture of the narcotics and money occurred. Witness the following testimony given on direct examination by Miss Janet Parish

“Q. What did he do when he got to those two places, first of all, to the locked cabinet where the drugs are kept?
A. He asked Sam to open it up, and when Sam opened it, he started putting the stuff, it looked to me like a big bag of some sort.
* * * * * *
Q. He was putting the money and drugs into one of these sacks?
A. Yes.”
On cross-examination her testimony remained consistent.
“Q. You also testified that you saw a man taking some drugs from the shelves, is that correct?
A. Well, the drugs from the — there’s a little cabinet that is locked up, and I saw him take the drugs from the cabinet that was locked.
⅝ sfc * ‡ ⅜ ⅜
Q. At any rate, you say you saw him with some drugs and so on that were moved from the box, or — you actually saw that?
A. Taken out of the box and put into this bag.”

A police officer who investigated the scene of the robbery testified that he recovered two pillow cases, one inside the other, from the floor directly beneath the narcotics cabinet, which contained drugs and money-

The testimony of these two witnesses was not inherently incredible, self-destructive, or completely impeached by contradictory evidence, and was such that reasonable minds might believe it. On the basis of this testimony the jury here could reasonably find, and obviously did, that defendant actually seized narcotics and money and placed them in the referred to pillow cases. This testimony constituted substantial evidence that narcotics and money were seized by defendant.

Since there was substantial evidence that narcotics and money were seized by defendant, albeit the goods were not carried out of the store, nor physically retained, there was evidence that the crime of robbery was completed, for, if one in the course of a robbery (with all the other elements present) gains control of the property even for an instant, the crime is consummated. State v. Murray, 280 S.W.2d 809 (Mo.1955); State v. Thomas, 525 S.W.2d 833 (Mo.App.1975); 67 Am.Jur.2d, Robbery § 11, p. 36. It appearing that the crime for which defendant was charged was actually perpetrated, there could be no conviction for attempted robbery by virtue of Section 556.160, RSMo 1969. Perforce, since a conviction for attempted robbery could not stand under the facts of this case, there was no need to instruct the jury on attempted robbery. Thus, failure to give defendant’s requested instruction on attempted robbery was not error. See: State v. Murray, supra; and State v. Thomas, supra.

Judgment affirmed.

All concur.

      . In State v. McDaris, 411 S.W.2d 126 (Mo.1967), the charge was burglary in the second degree, and there was proof of a consummated offense. The trial court instructed the jury on an attempt to commit burglary. This was held to be reversible error by the Missouri Supreme Court.


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James TENNYSON, Defendant, Dorothy Bruno, Surety-Appellant.
    No. KCD 28088.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      J. Martin Kerr, Independence, for surety-appellant.
    Ralph L. Martin by Patrick B. Hall, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This appeal is from an order of the trial court granting the State’s motion to enter judgment on forfeiture of a $5,000 recognizance bond executed in the Jackson County Magistrate Court. Appellant Dorothy Bruno is surety. The principal, James Tennyson, was charged with first degree robbery. Tennyson failed to appear for arraignment in the circuit court on September 13, 1973. Judgment against the surety and principal was entered on June 5, 1975 and the trial court ordered that execution issue in the amount of $5,000 plus costs.

In the interim between the failure of Tennyson to appear for arraignment and the entry of judgment, events occurred upon which appellant bondsman’s appeal is bottomed.

A federal flight warrant was issued resulting in the arrest of Tennyson in Detroit, Michigan, on May 13, 1974. A United States Magistrate set bond at $10,000, then reduced it to $5,000. Tennyson was released on payment of a ten percent deposit and his promise to voluntarily appear at the Jackson County Sheriff’s Office by May 24, 1974. Tennyson has not been heard from since his release in Michigan.

At the hearing on the State’s motion for judgment, the bondsman’s attorney stated that federal authorities in Michigan were contacted by the bondsman. The substance of the alleged communication is unclear. The attorney said, “. . . upon being advised that the defendant was in custody in Michigan the surety . . . contacted the federal authorities ... to have the removal procedures begun.” There is no direct testimony, nor do the exhibits indicate anything pertaining to the bondsman’s communications with federal authorities in Michigan. There is no evidence about Missouri authorities being involved with the events that transpired in Michigan.

The sole assignment of error is “The trial court erred and abused its discretion by failing to set aside the bond forfeiture in that cause was shown that justice did not require said forfeiture.” The claim is that bondsman did all she could possibly do to return Tennyson to Missouri, and but for the negligence of the federal magistrate in admitting Tennyson to bail she would have succeeded in returning him to Missouri.

The surety has the burden to prove justification or excuse for failure to produce the principal. State v. Savage, 461 S.W.2d 887 (Mo. banc 1971); Rule 32.12. After forfeiture is declared, Rule 32.12 provides that the surety may show justice does not require forfeiture. If that showing is not made, the court shall then on the State’s motion enter judgment.

Rather than move to set aside the forfeiture, the bondsman waited two years until the State moved for judgment and then raised as a defense the allegation of the federal magistrate’s negligence and the bondsman’s efforts to return the principal. Even if this is considered as procedurally appropriate, which may be doubtful, since the interlocutory order of forfeiture is what may be set aside under the rule rather than the judgment upon the forfeiture, there is no evidence to support the claim.

No evidence was presented upon which the trial court could in the exercise of its discretion excuse the surety. The claims of negligence of the magistrate and diligence on the part of the surety are supported only by the assertions of appellant’s attorney. The exhibits show only by the unsupported assertions of counsel the defendant’s arrest in Michigan and release on a $5,000 bond. The exhibits contain no evidence about the nature of the bondsman’s alleged contact with federal authorities in Michigan or her efforts to return Tennyson to Missouri. All that is really clear from the evidence is that the surety failed to satisfy the condition of her bond.

In argument, the bondsman shifts from a claim of abuse of discretion to one of failure to exercise the discretion vested in the trial court by the Rule. A statement of the trial court that it was mandatory under the rule to enter the judgment is relied on to support the assertion that the discretion was not exercised. While it is true that a failure to exercise discretion in acting upon a request to set aside a bond forfeiture is improper [State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927 (1947)], such a failure to exercise discretion cannot be predicated upon a record such as this where the surety has so obviously failed in carrying the burden of providing an evidentiary basis for the exercise of judicial discretion.

Even assuming the magistrate was negligent and the bondsman was as diligent as possible in her attempts to have Tennyson returned to Missouri, those facts would not establish an abuse of discretion by the trial court in its refusal to set aside the forfeiture. Generally, discretionary exoneration of the surety in Missouri is based on an act of God, an act of the law, an act of the obligee, the State, or an act of a public enemy. State v. Savage, supra. The fact that a surety’s efforts to return the principal are thwarted by events in a jurisdiction outside the obligee state is not a basis for excusing the surety. The surety is in the first instance at fault for permitting the principal to go out of the state into another jurisdiction. Also, there would be little incentive for sureties to keep the principal from escaping if sureties could be excused on a showing of diligence in attempting to have the principal returned. State v. Hammond, 426 S.W.2d 84 (Mo.1968); State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (1954).

The judgment of the trial court is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Russell Lee BURNS, Appellant.
    No. KCD 28092.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      R. M. Gifford, Gifford & Gifford, Green City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant Burns was convicted on trial by jury of sale of a controlled substance, lysergic acid diethylomide (LSD), in violation of Section 195.017 RSMo 1969. The jury was unable to agree upon a sentence and the defendant was sentenced by the court to a term of twenty (20) years imprisonment.

The defendant raises two points on this appeal. First, he states that the trial court abused its discretion in denying his counsel’s request to withdraw and in requiring the defendant to proceed to trial with that counsel or with no counsel; that he sought a change of counsel for good cause; and, that such change would not have caused an unreasonable delay of the trial. Second, he asserts that the court erred in overruling his motion for a new trial on the ground of ineffective assistance of counsel in certain enumerated areas.

A brief summary of the basic facts will suffice. On April 3, 1974, Edward N. Moses, a narcotic undercover agent for the Missouri Highway Patrol, purchased two capsules of what was purported to be mescaline from defendant in a bar where the defendant worked in Brookfield, Missouri. An analysis of the content of these capsules by Afton Ware, a chemist with the Highway Patrol Laboratory in Jefferson City, disclosed the fact that they contained LSD.

On June 25, 1974, the defendant was indicted by a Linn County grand jury, and on July 8, 1974, he appeared for arraignment with his then private counsel, James J. Wheeler, and pleaded not guilty to the indictment. On that date, the defense filed a motion to quash and and dismiss the indictment and motions for discovery. On July 19, 1974, the court overruled the motion to quash and dismiss the indictment and set the cause for trial on December 3,1974. On November 25, 1974, the prosecuting attorney filed a motion for disclosure under Rule 25.34, which was by the court sustained on November 27, 1974. On December 3, 1974, the trial was continued, on the state’s motion, to February 3, 1975, for failure of defendant to make disclosure. On January 13, 1975, the defendant’s application for Change of Judge was sustained and on January 17, 1975, by transfer order of. the Supreme Court, the Honorable Kenneth R. Lewis was designated to try the cause in Linn County. Thereafter, on March 13, 1975, the application of the defendant for a Change of Venue from Linn County was sustained and the case was sent to Sullivan County for trial on May 1, 1975.

The record discloses the following facts pertinent to defendant’s first assignment of error.

Near the end of December, 1974, or the first of January, 1975, Mr. Michael Midyett took over Mr. Wheeler’s law practice as the latter was elevated to the bench. Thereafter, on April 9, 1975, Midyett filed a motion to examine and test the controlled substance that the defendant was charged with selling and a motion to suppress in-court identification, which motions, after an evi-dentiary hearing on the same day, were overruled.

On the morning of the trial, May 1, 1975, the defendant’s attorney, Midyett, made an oral motion that he be permitted to withdraw from the case for the reason that the defendant had advised him at 11:00 p. m. the previous night that he wished to employ different counsel and did not want Midyett to represent him. During the rather lengthy colloquy between the court, the defendant and counsel, the defendant stated that he had “contacted another lawyer”, Mr. Gilford (sic) of Green City, who “said he would be glad to represent me”; that he “just don’t feel like he’s (Midyett) doing me any good at all”; and that he wished new counsel because he felt that he and Midyett hadn’t “accomplished a thing”.

The prosecuting attorney strenuously objected to the court and for various stated reasons characterised the motion to withdraw as a bad faith effort to force a trial continuance. This charge was stoutly denied by Midyett and the defendant. Mi-dyett further stated that he did not feel prepared to proceed because of the “atmosphere between Mr. Burns and myself at this particular time”.

Noting that Mr. Midyett had represented the defendant since January, 1975, over four months, the court overruled his motion to withdraw and what the court considered as defendant’s oral motion for a continuance. The court also sustained the prosecutor’s objection to the use by the defense of witnesses first disclosed the day before trial.

Thereupon, the court asked if Mr. Mi-dyett was ready to proceed with the trial, to which inquiry Midyett replied, “Other than previously stated, Your Honor”. Just before the start of the voir dire examination of the jury, the defendant stated, “I refuse Mr. Midyett to represent me.” To which the Court replied, “We’re going ahead with this trial today, Mr. Burns, and you may do so with or without counsel, but I’m sure Mr. Midyett is a very competent and capable attorney and his assistance to you in this trial would be invaluable. * * * [I]f you desire to proceed without counsel it would be at your own peril and the court would not advise that; * * *.” Thereafter, the defendant told the Court that he would allow Mr. Midyett to proceed in the case.

The defense did not present any evidence at the trial. After the trial and conviction, the defendant’s present counsel entered his appearance and filed a motion for a new trial, the grounds for which included the points raised on this appeal. In overruling this motion, the Court stated its opinion that the motion to withdraw as counsel on the morning of the trial was for the purpose of delay.

The determination of defendant’s first point is governed by certain principles firmly fixed in Missouri decisional law. A defendant in a criminal proceeding is not only entitled to the constitutional right to counsel but also a fair and reasonable opportunity to secure counsel of his own choice. State v. Jefferies, 504 S.W.2d 6, 7[1] (Mo.1974); State v. Hollins, 512 S.W.2d 835, 838[6] (Mo.App.1974). However, there is no absolute right to be represented by a particular attorney of his choice. State v. Williams, 419 S.W.2d 49, 54[8] (Mo.1967); State v. Hamblin, 448 S.W.2d 603, 607[7] (Mo.1970); State v. Hollins, supra, at l.c. 838[1]. Also, this right is limited to the extent that it impinges on the right of the public to effective and efficient administration of justice and the rights of other defendants in criminal cases to have access to the courts and speedy determination of their cases. State v. Crider, 451 S.W.2d 825, 827-828[4] (Mo.1970); State v. Jefferies, supra, at l.c. 7[2]; State v. Hollins, supra, at l.c. 838[6]; State v. Wade, 535 S.W.2d 492 (Mo.App. St. Louis District, filed March 2, 1976).

Within these principles, the ultimate determination of whether counsel should be permitted to withdraw in a case such as the one at bar rests within the sound discretion of the trial court. State v. Wilkinson, 423 S.W.2d 693, 697[3] (Mo.1968); State v. Mimms, 349 S.W.2d 925, 927[3] (Mo.1961); State v. Hollins, supra, at l.c. 838[3]. It is likewise within the sound discretion of the trial court to determine whether a trial continuance be granted so that the defendant can be given an opportunity to obtain other or new counsel. State v. Reece, 505 S.W.2d 50, 52[2] (Mo.1974); State v. Blankenship, 526 S.W.2d 78, 81[2] (Mo.App.1975).

In light of the facts that defendant here had four months in which to procure counsel other than Mr. Midyett; that he expressed no dissatisfaction with his counsel until 11:00 p. m. on the eve of trial; that he sanctioned the motion of his counsel to withdraw and made a request for continuance for the first time on the morning of the trial; that the allegedly newly-employed counsel did not appear and the Court was given no assurance as to when such counsel would actually undertake the defense; and, that the trial had already been delayed nearly a year due to pre-trial actions of defendant’s counsel, it cannot be said that the trial court abused its discretion by overruling the motion of counsel to withdraw and denying any continuance. State v. Martin, 525 S.W.2d 804, 807-808[1] (Mo.App.1975); State v. Crider, supra, at l.c. 827[3]; State v. Hollins, supra, at l.c. 838[7]; State v. Jefferies, supra, at l.c. 7-8[3, 4]; State v. Blankenship, supra, at l.c. 81[2]. The appellant’s first point is ruled against him.

The defendant’s claim that he had ineffective assistance of counsel can only be reviewed on direct appeal where the record develops facts essential to “a meaningful review” of that point. State v. Cluck, 451 S.W.2d 103, 107[8] (Mo.1970); State v. Martin, supra, at l.c. 807; State v. Blankenship, supra, at l.c. 81[1]; State v. Hedrick, 499 S.W.2d 583, 586[7, 8] (Mo.App.1973). The record before this court is inadequate to permit consideration of the question of inadequate assistance of counsel. While the defendant made some broad, general charges in support of his position, neither his statements nor that of his counsel, Mi-dyett, nor of the prosecuting attorney, were under oath, the facts were not established by formal evidence of any kind, but at best, were part of a generalized colloquy. Mr. Wheeler, his original counsel, was not called to testify, and none of the witnesses whose testimony was excluded because of late disclosure were called, nor any showing made as to the nature of their expected testimony. Nothing that is stated here shall be deemed, however, to preclude or limit any future proceedings by proper application and hearing under Rule 27.26 upon this matter. The defendant’s second point is ruled against him.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    In re the MARRIAGE OF Sharon Ann REYNOLDS, Appellant, and Larry Douglas Reynolds, Respondent.
    No. KCD 28102.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    James H. Counts, Stephen J. Briggs, Morton, Reed & Counts, St. Joseph, for appellant.
    Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE,. JJ.
   SHANGLER, Presiding Judge.

The court ordered dissolution of the marriage and awarded custody of the two children, a boy of seven years and a girl of five, to the father. The mother appeals from the order of custody.

The evidence was that the parties had been married about eight years until dissolution. Sometime within three years, according to the husband, the marriage was threatened by a dalliance between the wife and one Jobes. He confronted them and as a result she promised to conduct herself as a proper wife. They reconciled until May of 1972 when she filed for divorce, but they reconciled again several months later. Her behavior continued to be unaccountable; she left in the early evening and did not return until midnight. On those occasions, the husband attended the children, prepared their meals and put them to bed. The wife was not candid about her activity and accused him of jealousy. Then, one night in September of 1974, the wife left him a note which suggested an action for dissolution was in preparation, and invited his departure. The husband left the home and this action followed.

On the issue of fitness of the mother as custodian of the children, the husband offered the testimony of private investigator Martin and the neighbors Punzo. The testimony of these next-door neighbors was that about Christmas of 1974, Jobes commenced visits to the wife at the residence, parked his car in the garage, and spent the nights.

Martin was engaged by the husband to investigate and record the activities of the wife commencing December of 1974. Surveillance of the residence disclosed the Jobes car parked in the driveway throughout the night; Jobes was seen leaving the premises about midnight. On another occasion, the wife picked up Jobes, went to his apartment and spent the night. This pattern was repeated.

The wife admitted cohabitation and intimacy with Jobes, but not until after final separation and the pendency of the dissolution petition. It was her testimony that her intimacy was never acted in the presence of the children, nor did Jobes remain at the house overnight when the children were there. She admitted that earlier during the marriage she had told her husband about her affection for Jobes, that her marriage then was fraught with problems, but that she did not give herself to Jobes until the final separation in late 1974.

It was her testimony that her husband had beaten her twice; the husband acknowledged one incident brought on, he said, by the exasperation of her nighttime escapades. She testified as to the care she had for the children, and she produced witnesses who described her as an immaculate housekeeper, caring mother and skilled cook. This evidence was disputed by the husband who described the children as ill-kempt, the house indifferently kept, and her cooking skills unused.

There was other evidence of this nature which was in basic dispute. The trial court made an explicit finding that he believed and accepted the testimony of the husband as it related to summer of 1974, the focus of much of the evidence. That evidence bore on the disregard by the wife of her maternal responsibilities as well as of the management of the home and. care of the husband. In addition to her unexplained nocturnal absences, she committed herself to a college night course which kept her away from her family and home duties. Although the husband earned about $22,500 annually as an electrician, she assumed employment during the day and then enrolled for a nighttime psychology course.

The court found also that the wife lived in open adultery when the children were in the home, and although the conduct was not conclusively harmful to the children then, the lack of concern for the children was demonstrable. This behavior, considered with her disregard for. the care of the children and home, was the basis for the conclusion of the trial court that the appellant wife was unfit as custodian of the children.

The court found the father, then 29 years of age, was a fit and proper person to care for the children. There was evidence that he was then living with his married brother in a residence commodious enough for him and the two children. The paternal grandmother each day transported the children to and from school to this residence. The court determined that this, as well as plans for the future expressed by the respondent husband, represented an adequate design for the care of the children.

Our review of this court tried case is governed by Rule 73.01. We may not set aside a judgment in such a cause unless it is against the weight of the evidence or wrongly declares or applies the law. Our power to set aside a decree as against the weight of the evidence must be exercised with caution and only “with a firm belief that the decree or judgment is wrong”. Murphy v. Carron, 536 S.W.2d 30, Mo. banc, adopted May 5, 1976. We find that the decree is supported by the evidence and conclude that the judgment was properly entered.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Allen R. TODD, Appellant.
    No. KCD 28161.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.

      McMullin, Wilson & Schwarz, Philip H. Schwarz, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury as a second offender of robbery, first degree. Appellant questions the sufficiency of evidence and the refusal to give a tendered converse instruction. Affirmed.

Myron Kimber owned an apartment building in Kansas City, Missouri. On October 26, 1973, around 9:00 a. m., he and Arthur McGee went to the basement of the building to repair the hot water heater. They entered by an alley door and walked down seven to nine steps. They carried a hand flashlight and a 12-volt battery lantern with a lens that threw light up and to either side. These appliances, together with the open door, provided the light for the basement.

While Mr. McGee was repairing the heater, a black woman entered the basement, asking to look at an apartment. After Mr. Kimber said he was busy, the woman left but returned in a few minutes to get a card which Mr. Kimber had previously offered. A few minutes after the woman left the second time, Mr. McGee noticed that the doorway to the alley darkened. Looking up, he saw the same black woman enter again with two black men following. Mr. McGee identified Allen Todd as the man immediately behind and to the side of the black woman, carrying a handgun.

At the time of the intrusion, Mr. Kimber was seated on the bottom step holding the flashlight for Mr. McGee who was squatting on his ankles parallel to the bottom step and to the right of Mr. Kimber. The lantern was on the bottom step next to Mr. Kimber. Mr. McGee and Mr. Kimber were ordered to lower their heads; both victims complied. A gun was placed at Mr. McGee’s head by Allen Todd, and Mr. Kim-ber was asked how much money he had. Mr. Kimber answered that he had $200 which assailants took from Mr. Kimber’s pocket. One of the robbers tried to extract Mr. McGee’s billfold from his back pocket. To do so, the robber was required to “flatten” Mr. McGee. This caused Mr. McGee’s head to turn and, at that time, he got another look at Allen Todd. As the robbers left, the lantern on the top step was kicked out. Mr. McGee again saw the face of Allen Todd as he backed up the stairs to leave. Mr. McGee saw Allen Todd’s face “three times, to be exact, and at one time maybe for half a minute.”

Mr. McGee stated that he gave the investigating police officer a description of his assailants. One of the males was about five feet ten or eleven inches and was nice looking, had a smooth face, nice clean haircut, clean shaven, and the other was taller and possibly thinner. The police report in evidence indicated only that Mr. McGee said the robbers were black.

Mr. McGee also testified that prior to the lineup at which he identified the appellant, he was shown several pictures by Detective Merl Hoffman. He did not recall being shown a photograph of Allen Todd at that time. The defense and the prosecution stipulated that if Detective Hoffman had been called to testify, he would state that prior to the lineup he showed Arthur McGee two photographs; one was of Allen Todd.

Allen Todd was convicted of robbery in the first degree of Arthur McGee and the court fixed his punishment at 12 years’ imprisonment.

Appellant contends that his identification was not proved. He argues “that the testimony of McGee was so contradictory, and much of it so patently untrue, that the jury should not have been able to convict * ⅜ solely because McGee at one point * * * said that he identified [Todd] as the person, or one of the persons who robbed him.” He asserts also that McGee’s testimony was “incredible * * * and should have been regarded by the Trial Judge * * * as being unworthy of belief.”

Robbery in the first degree is the felonious taking of property of another from his person, or in his presence, and against his will, by violence, or by putting him in fear of immediate injury to his person. § 560.120, RSMo 1969; State v. Wright, 476 S.W.2d 581 (Mo.1972). The State’s evidence, considered favorably to the conviction, showed that Allen R. Todd held a handgun at Arthur McGee’s head while a companion assaulted Mr. McGee and took a billfold from his pocket. Such was sufficient, under the authorities, to establish a prima facie case of robbery, first degree.

Appellant argues, nonetheless, that Arthur McGee’s testimony should not have been considered in linking him to the crime.

Appellant’s argument goes to the weight and believability of Mr. McGee’s identification of Allen Todd, not to the submissibility of the case, and such matters were for the jury to resolve. State v. Williams, 515 S.W.2d 544 (Mo.1974); State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973); State v. Graham, 527 S.W.2d 936 (Mo.App.1975). The jury heard and saw Mr. McGee, was exposed to the conflict between his testimony and the police report and the stipulated testimony of Officer Hoffman, and was made aware of the robbery scene. The jury resolved the issue of identification in those circumstances, and its determination is final. State v. Blewett, 507 S.W.2d 56 (Mo.App.1974).

Defendant offered, and the court refused, Instruction A:

“One of the issues in this case is whether the defendant was the perpetrator of the crime charged. The State has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.”

Appellant contends the court erred in refusing Instruction A “for the reason that such * * * correctly stated the law * * * and served to converse the State’s verdict directing instruction.” He argues that to allow this case to go to the jury without his Instruction A on the issue of identity “which was the entire defense” would be to deny him a fair trial.

Appellant concedes that Instruction A is not in MAI-CR. The required form for the converse of a single element of the State’s verdict-directing instruction is MAI-CR 3.02: “If you do not find and believe from the evidence beyond a reasonable doubt that [insert the single element to be negatived * * *], you must find the defendant not guilty * * * of-” A converse instruction in the 3.00 series may be given by the court without a request; shall be given where applicable if requested in the manner provided; and whenever there is an MAI-CR instruction applicable under the law to the facts, the MAI-CR instruction shall be given to the exclusion of any other on the same subject. Rule 20.02, V.A.M.R.; State v. Vernor, 522 S.W.2d 312 (Mo.App.1975).

Under this rule the trial court is ordinarily required to give a requested converse instruction, and failure to do so is error. The rule does not apply, however, when the requested instruction is improper in form. State v. Smith, 515 S.W.2d 761 (Mo.App.1974). Instruction A does not conform to the form for converse submission required by Rule 20.02, and authorized by MAI-CR 3.02. It is also argumentative and confusing. State v. Smith, supra.

The form of Instruction A suggests that it derives from some of the federal appeals courts which have required a similar instruction to be given in cases which turn on the testimony of a single eyewitness. See, e. g., United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972); United States v. Holley, 502 F.2d 273 (4 Cir.1974); United States v. Hodges, 515 F.2d 650 (7 Cir.1975). Missouri, however, has, no such requirement and does not require an instruction on identification if that issue is covered by other instructions. State v. Taggert, 443 S.W.2d 168 (Mo.1969). Believability of an eyewitness is covered by MAI-CR 2.01, Instruction No. 1 in this case, and all verdict-directing instructions require the jury to find beyond a reasonable doubt that the defendant was the perpetrator of the crime. See, e. g., MAI-CR 7.62, as required and used in this case to submit the charge of robbery, first degree, by means of a dangerous and deadly weapon.

Judgment affirmed.

All concur.


author: RENDLEN, Judge.

text:
    WELDON, WILLIAMS & LICK, INC., a corporation, Respondent, v. L. B. POULTRY COMPANY, a corporation, Appellant.
    No. 36351.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 1, 1976.

      Buerkle, Buerkle & Lowes, Jackson, for appellant.
    Vogel & Frye, Cape Girardeau, for respondent.
   RENDLEN, Judge.

Defendant, appealing an order granting summary judgment in plaintiff’s action on account, urges as error: (1) summary judgment was improvidently ordered since genuine issues of material fact appear; (2) defendant was denied a full opportunity to depose plaintiff’s officers in Missouri; and (3) plaintiff’s petition failed to allege compliance with § 351.635, RSMo 1969, V.A. M.S., a prerequisite to suits by nonresident corporations in Missouri courts. For reasons we shall discuss, the judgment is reversed and cause remanded.

Plaintiff, a printing concern, alleged that defendant ordered 1,033,000 printed paper wing tags in April, 1971, for use in defendant’s poultry business, 200,000 of which plaintiff delivered in June of that year. Defendant paid for those delivered but refused to accept or pay for the balance.

Defendant’s motion to dismiss, asserting as fatal plaintiff’s failure to allege it was either a domestic corporation or a foreign corporation qualified to do business in Missouri, was denied. By its answer defendant denied most allegations of plaintiff’s petition and affirmatively averred: (1) that defendant paid for tags received “though the very last tags were inadequate”; (2) that it contracted to pay only for suitable merchandise actually received; (3) when made aware of defects, defendant notified plaintiff “it did not want any more tags”; and (4) by industry custom printers often maintain a supply of printed material on hand for future orders without charge until delivery.

Both parties deposed representatives of the other and defendant served interrogatories which plaintiff answered in due course. Plaintiff moved, with supporting affidavits, for summary judgment and defendant responded, filing counter-affidavits. The case was taken from its trial setting and seven months later summary judgment was entered.

Summary judgment is “an extreme and drastic remedy and great care should be exercised in utilizing the procedure.” Cooper v. Finke, 376 S.W.2d 225, 229[3] (Mo.1964). It is proper only where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” Civil Rule 74.04(c), V.A.M.R. As provided in subsection (h) of the Rule: “In no case shall a summary judgment be rendered unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

Reviewing the record, we learn defendant by letter of March, 1971, requested that plaintiff develop a new wing tag and in the following weeks plaintiff submitted a basic design for the tag which was altered somewhat to meet defendant’s suggestions. On April 15 plaintiff submitted a revised version of the tag and on the 18th of April defendant returned the “proof” with the following note:

“Tag looks good. I believe we can leave off the L. B. Poultry inside the state, leaving only Jackson, Mo. Get approvea-ble [sic] and print 1,000,000 and ship as soon as possible.” (Emphasis added.)

On April 20 the revised design was sent to the United States Department of Agriculture for its consideration since without that agency’s approval the tags could not be used.

By phone on May 17, defendant ordered shipment of 200,000 tags which were delivered and payment made. About September 10 of that year, defendant informed plaintiff by phone that it would be unable to use any more of the tags. In the deposition of defendant’s secretary it appears the tags were no longer suitable because defendant had fired its government “grader” and could no longer use tags designating its poultry “USDA Grade A.”

Plaintiff then billed defendant for 833,-000 tags and when defendant denied it was bound to pay for additional tags, plaintiff destroyed the balance on hand.

Plaintiff suggests that the note of April 18, 1971, from defendant “constituted the contract, the entire contract, and the only contract.” We cannot agree. Even if true, as plaintiff contends in its brief, that “[i]t is not disputed that upon receipt of this order that the 1,000,000 tags were printed,” plaintiff’s conduct was not consistent with its interpretation of the agreement.

The memo states “print 1,000,000 [tags] and ship as soon as possible.” For reasons not explained, plaintiff printed 1.033.000 and by its invoice billed for the extra 33,-000. Further, plaintiff shipped only 200,000 tags, not the 1,000,000 “contracted” in the memo. Though this may be explained by the fact that defendant requested shipment of only 200,000 tags, the 1,033,000 printed cannot on its face be reconciled with the 1,000,000 ordered. These discrepancies indicate that reference to that document alone is insufficient to explain the terms of the agreement in light of the parties’ subsequent actions and the allegations of plaintiff’s petition.

Under these facts an interpretation of the contract must be made in light of the surrounding circumstances, applicable customs and usages, the parties’ own interpretation of the contract, and other evidence bearing on its meaning. Cure v. City of Jefferson, 380 S.W.2d 305, 311[3] (Mo.1964); E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167, 173[8] (Mo.1967).

The trial court in the first instance, and this court upon review, must examine the record in the light most favorable to the party against whom summary judgment is rendered. Cooper v. Finke, supra at 228[2]. All reasonable doubts touching the existence of any material fact must be resolved against the movant, and the party moved against is entitled to all inferences that may reasonably be drawn from the evidence. Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688 (1965).

Defendant alleged that under the agreement it was only bound to pay for merchandise received and it was the industry custom for printers to keep goods on hand to fill future orders but to charge only on delivery. Plaintiff’s salesman, when deposed, testified to the contrary and his testimony is reinforced by the affidavits filed in support of plaintiff’s motion. Nevertheless, defendant’s counter-affidavits, though somewhat vague, are sufficient to raise genuine issues of material facts on these points. Plaintiff would have us disbelieve defendant’s counter-affidavits and select portions of depositions given by defendant’s secretary as admissions binding the company. Instead defendant must have the benefit of every reasonable doubt and it remains for the trier of fact to weigh the evidence and measure credibility. The purpose of summary judgment “is not to deny litigants a trial where a bona fide dispute of material fact exists . . . ” Brown v. Prudential Ins. Co. of America, 375 S.W.2d 623, 629[4] (Mo.App.1964). Among others there remain unresolved as issues of fact the terms of the contract between the parties and the existence or nonexistence of the custom or usage of trade which might explain the terms of that agreement. The proof here leaves room for controversy; for this reason the cause must be reversed and remanded.

Defendant next contends that plaintiff’s unadorned allegation that it “is a corporation engaged in the printing business” is insufficient to demonstrate plaintiff’s right to sue in Missouri courts. “It is generally the practice, when a corporation brings a suit, to state as an ultimate fact its corporate character and its right to sue in that form.” State v. Jones, 320 Mo. 353, 8 S.W.2d 66, 67[5] (1928). However, it has been held that a corporate plaintiff’s allegation of its corporate existence with nothing to show compliance “with the laws of this state to entitle it to make contracts and enforce them in courts of this state” was sufficient because “compliance with the laws of this state will be presumed and failure to comply is purely a matter of defense.” Scientific American Club v. Horchitz, 128 Mo.App. 575, 106 S.W. 1117, 1118 (1907). See § 509.140,“ RSMo 1969, V.A. M.S., and Rule 55.13, V.A.M.R., (formerly 55.15). The contention is without merit.

Defendant finally asserts it was denied a reasonable opportunity to develop through deposition of plaintiff’s corporate officers proof of plaintiff’s nonentitlement to sue in the courts of this state. Reviewing defendant’s efforts to depose plaintiff’s corporate officers, it is well to point out that defendant on remand of the case may avail itself of current discovery procedures and it should be noted “attendance of a party is compelled by notice.” Rule 57-03(a), V.A.M.R. An appropriate officer of plaintiff, perhaps more than one, may be deposed in Missouri subject to the court’s general superintending control, properly exercised. Reversed and remanded.

WEIER, P. J., and DOWD, J., concur.

      . Answering defendant’s interrogatories, plaintiff admitted it was an Arkansas corporation and had made no application for authority to do business in Missouri.

      . Defendant produced its secretary-treasurer and plaintiff produced salesman, Archie Smith, for deposition. Thereafter, defendant sought to depose an officer of plaintiff-corporation and the court ordered the deposition of “one officer or employee of plaintiff” but conditioned its order on defendant’s filing a counter-affidavit supportive of allegations in its pleadings. The court was without authority to impose such condition. As stated in State v. Goodman, 406 S.W.2d 121, 126[7] (Mo.App.1966): “Insofar as depositions are concerned, it seems clear a trial court may make a protective order under Rule 57.01(c) [now 56.01(c)] only after notice to take a deposition has been served, only after a motion for a protective order has been seasonably made, and only after movant shows a good cause for protection. . (Emphasis added.) For reasons not apparent from the record, no officer of plaintiff was deposed. On remand proper opportunity for further discovery must not be denied.


author: KELLY, Judge.

text:
    STATE of Missouri ex rel. MORTGAGE ASSOCIATES, INC., and Sheldon D. Grand, Trustee, Relators, v. Honorable John R. RICKHOFF, Respondent.
    No. 37221.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 1, 1976.

      Sheldon D. Grand, Clayton, for relators.
    William P. Russell, St. Louis, for respondent.
   KELLY, Judge.

In this original action for Writ of Prohibition, filed by the Mortgagee and the Trustee under a Deed of Trust, to restrain the respondent Circuit Judge from proceeding further in a statutory redemption action we issued our preliminary rule. We make the writ absolute.

Mortgage Associates, Inc., is the mortgagee in a deed of trust securing a note on a parcel of realty located at 7917 West Bruno in the City of Richmond Heights, Missouri, and owned by Edmond and Darlene Banks. Sheldon D. Grand is the Trustee. On February 28,1975, the Trustee commenced publication of notice of foreclosure for sale of the realty on March 28, 1975. Immediately prior to the foreclosure sale on said date the Trustee was served with a written Notice of Redemption. The sale was held and Mortgage Associates, Inc. was the successful bidder and purchaser. On April 17, 1975, the 20th day after the sale, the Trustee received in the mail a copy of a “Motion for Approval of Bond” which had been deposited in the United States mail on April 16, 1975. Also on April 17,1975, the aforesaid “Motion for Approval of Bond” was filed in the office of the Clerk of the Circuit Court of St. Louis County and assigned to the respondent Judge.

The “Motion for Approval of Bond” recited the execution of the Deed of Trust, the advertisement and sale of the property at foreclosure, service of Notice of Redemption on the Trustee on March 28, 1975, at the sale, and that “the necessary expenses incurred by Mortgage Associates, Inc., is in the neighborhood of $500.00.” It moved the Court to approve the bond in the amount of $500.00. The bond filed with the Motion is set out as follows:

“SECURITY FOR COSTS
Edward Banks and Darlene Banks, Plaintiff vs. Mortgage Associates, Inc., Defendant.
In the
Circuit Court of St. Louis County, Missouri _Term, 1975.
We, the undersigned, hereby acknowledge ourselves bound to pay all costs that have and yet may accrue according to law in above entitled case. This bond shall be effective April 16, 1975. The bond amount shall not exceed the sum of $500.00.
National Bonding and Accident Insurance Company
By: /s/ GARY L. LACK Gary L. Lack Attorney-in-fact
Approved: _
Circuit Clerk.

Attached to the bond was a document appointing Gary L. Lack as Attorney-in-Fact for the Insurance Company for the purpose of executing on its behalf as surety any and all bonds or undertakings and an affidavit executed before a Notary Public by the said Gary L. Lack that he, Gary L. Lack, had executed the bond as the voluntary act and deed of the Insurance Company for the purpose mentioned therein.

Summons was issued and service obtained on the Trustee on May 2,1975. Service was not had on the Mortgagee. On May 23, 1975, the Trustee filed his Motion to Dismiss and on May 28, 1975, the Mortgagee filed its Motion to Dismiss. The grounds for dismissal in both Motions were identical. They are: 1) that the bond filed did not secure the items required by § 443.410 through 443.430 RSMo 1969; 2) that the Notice required by these same statutes pri- or to the filing of the bond was not given; 3) that no approval of the purported bond was made within the 20 day period following the foreclosure sale as required by the statutes; and 4) that no petition for redemption had been filed in connection with the foreclosure sale. On June 6, 1975, Respondent overruled both Motions to Dismiss and Relators then filed their Application for Writ of Prohibition in this court.

The issue here is whether the Respondent acquired jurisdiction in the redemption proceedings. For the following reasons we conclude that he did not.

In Missouri if a mortgagor seeks to redeem foreclosed property he must, under the provisions of §§ 443.410 through 443.430 RSMo 1969, within 20 days after sale file a bond which must be in accordance with the terms of the statutes and approved by the court. If no bond meeting these specifications is filed within the 20 day period the court acquires no jurisdiction over the redemption proceeding and has no jurisdiction to grant the right of redemption under the statutes. The filing of a bond in proper form is jurisdictional. State ex rel. Gravois Home Savings & L. Ass’n v. Moss, 458 S.W.2d 593, 595 (Mo.App.1970); State ex rel. Home Owners’ Loan Corporation v. Bird, 232 Mo.App. 652, 110 S.W.2d 386, 387[1] (1937). The bond or security required by the statute is one executed by the person or persons entitled to redeem with at least one good surety. § 443.420 RSMo 1969. The signatures of the persons entitled to redeem — Edmond and Darlene Banks — appear nowhere on the “Security for Costs” bond filed with the “Motion to Approve Bond” on April 17, 1975, the 20th day after the foreclosure sale, nor had they been affixed thereto even as of the date our preliminary rule issued. Therefore no proper bond was filed within the statutory period and the court acquired no jurisdiction over the proceedings.

Furthermore, it is apparent that the bond filed with the Motion of the parties entitled to redeem is a “Security for Costs” bond which utterly fails to comply with the provisions of § 443.420 RSMo 1969 that the security be for payment of the items set forth therein if redemption is not made.

We hold therefore that the Banks failed to bring themselves within the mandatory provisions of §§ 443.410^443.430 RSMo 1969 and the Writ is made absolute.

CLEMENS, P. J., and STEWART, J., concur.