text:
    Ex parte Jack Charles ANDERSON, Relator.
    No. 15711.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 15, 1976.

      Richard D. Knutson, Carter, Callender & Gonzalez, San Antonio, for appellant.
    Joe L. Hernandez, Hernandez & Campos, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an original habeas corpus proceeding wherein relator seeks release from an order of commitment because of his refusal to deliver to his former wife, Mary Estella Anderson, the sum of $105.00 each month, as her part of relator’s military retirement as ordered by the decree of divorce. The trial court found that relator was in arrears in the sum of $3,990.00 and ordered him committed to the Bexar County Jail until he purged himself of contempt by payment of this sum.

Relator urges that the order of contempt is void and his confinement and restraint is thus illegal for two reasons. 1. His confinement amounts to imprisonment for debt in violation of Article I, Section 18, of the Constitution of the State of Texas. 2. The divorce decree is unenforceable because it is not clear and unambiguous.

On May 7, 1973 relator was granted a divorce from his wife. In dividing the community property, the court ordered and decreed that the wife receive as her sole and separate property certain named personal property and further, “out of Petitioners Military Retirement Fund, she shall receive the sum of $105.00 per month, . commencing on March 5, 1973 and to continue for so long as he, the said Petitioner shall receive his military retirement,

In Ex parte Sutherland, 526 S.W.2d 536 (Tex.1975), the Supreme Court recently considered the basic question raised by relator’s first contention. Sutherland was found in contempt for violating the terms of a divorce judgment by failing to pay his former wife one-half of the retainer pay received by him as a member of the Fleet Reserve. He urged, in support of his application for a writ of habeas corpus, that he was being imprisoned for debt. The Court held that his confinement to compel payment of the arrearage in the wife’s one-half of the retainer pay was not imprisonment for debt within the meaning of Article I, Section 18, of the Texas Constitution. As a basis for this holding, the Court said:

The former wife’s right to one-half the retainer pay received by relator and his duty to pay her share into the registry of the court, are determined by the divorce judgment. Since that is so, there is no problem here of imprisonment for debt in the constitutional sense, at least with respect to the wife’s one-half of the retainer pay. Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled.

Relator urges that this holding has no application here because Sutherland was ordered to pay his wife’s one-half of the retainer pay into the registry of the court, whereas, relator was ordered to pay his former wife’s part of the retirement pay directly to the wife. Such a distinction was recognized in Ex parte Yates, 387 S.W.2d 377 (Tex.1965), where the Supreme Court held that Yates was being imprisoned for debt in violation of the Texas Constitution. This distinction was also pointed out by Chief Justice Greenhill in his article, Habe-as Corpus Proceedings in the Texas Su preme Court, 1 St. Mary’s L.J. 1, 12 (1969). Although not expressing an opinion as to the validity of such distinction, it was observed that the wife’s attorney would have been well advised to order the husband to pay the proceeds realized from sale of community assets into the registry of the court rather than to the wife with the right of execution.

It must be recognized at the outset that the divorce decree in Yates is clearly distinguishable from that in Sutherland. In dividing the community property, Mrs. Yates was given $67,920.75 of a debt owed Mr. Yates by Gordon Yates Lumber Company, which debt was evidenced by a promissory note. Yates was ordered to “deliver said note to the plaintiff as security for her payment, but [he] may redeem the note by installment payments of $500.00 per month . .” It was said by the Court that what Mr. Yates was ordered to pay was money to be earned by him in the future. This payment was held to be a debt and Yates was ordered discharged. On the other hand, Sutherland was ordered to collect and remit his former wife’s share of the retirement fund earned during the marriage. The Court held that, in doing so, Sutherland was constituted a trustee by said order. The performance of that duty .as trustee was determined not to be payment of a debt and Sutherland’s application was denied.

Relátor, like Sutherland, was ordered to collect and remit to .his former wife her share of the retirement pay. In performing this duty, he is not paying a debt to her but is surrendering the share to which his former wife is legally entitled. We do not see how his status as a trustee in performing this duty is changed into one of a debtor by the provision directing him to pay said share directly to his wife as distinguished from paying it to the clerk for forwarding to his wife. No such distinction has been recognized in contempt actions based on unpaid child support payments. Furthermore, such a distinction would place a tremendous burden upon the district clerk if required to receive and disburse such monthly payments. We therefore hold that relator’s confinement to compel payment of the arrearage in the wife’s share of the military retirement fund is not imprisonment for debt within the prohibition of the Texas Constitution. Ex parte Sutherland, supra.

Relator urges that, in any event, his commitment is illegal in that the divorce decree is too ambiguous to be enforceable. In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), the Supreme Court restated with approval the accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific, and unambiguous terms “so that such person will readily know exactly what duties or obligations are imposed upon him.” The order must inform the defendant what is required of him without calling on him for inferences or conclusions about which persons might well differ, and without leaving anything for further hearing.

The provision of the divorce decree before us, although certainly not a model of clarity, meets this test. It is ordered that the wife should receive $105.00 per month out of relator’s military retirement fund, said sum to be paid to her on the fifth day of each and every month as long as relator receives his military retirement fund.

Relator relies on Ex parte Filemyr, 509 S.W.2d 731 (Tex.Civ.App.—Austin 1974, no writ), in support of his proposition that the order is too ambiguous for enforcement. The decree was there held to be unenforceable primarily because it did not say when or to whom wife’s percentage was to be paid. Here, the relator could clearly understand that the sum of $105.00 was to be paid to his wife on the fifth day of each month for as long as relator received his military retirement. This could only be done by him. It cannot be said that his failure to deliver to his former wife her monthly share of the military retirement was brought about by his uncertainty over the order.

We conclude that the contempt order is not void. Accordingly, relator’s application for writ of habeas corpus must be denied. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1962). It is ordered that relator be remanded to the Sheriff of Bexar County, to be confined by him under the order of-the District Court, and that relator pay all costs of this proceeding.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    INVESTORS REALTY TRUST, Appellant, v. The CARLTON CORPORATION et al., Appellees.
    No. 19043.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 16, 1976.

      Thomas W. Craddock, Eldon L. Young-blood, Coke & Coke, Dallas, for appellant.
    Gerald P. Urbach, Joseph W. Geary, Jr., Daniel C. Garner, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellees.
   GUITTARD, Justice.

This appeal is from a temporary injunction restraining a trustee’s sale of real property. The apparent ground of the injunction was failure of appellant Investors Realty Trust, the holder of the note secured by a deed of trust on the property, to give the borrower, Carlton Corporation, notice of default and notice of acceleration of maturity as required in the loan agreement. Since we find that these provisions of the loan agreement were complied with after the suit was filed, but before the temporary injunction hearing, we hold that the temporary injunction was improper. We hold also that appellant’s right to accelerate was not lost by waiver or estoppel.

The loan was made in 1973 by Investors Realty to Carlton Corporation in the amount of $1,500,000. The note was guaranteed by several individuals and was secured by the deed of trust in question, which covers realty in Dallas County. Interest was payable monthly, and the entire principal was payable in July 1976.

The borrower, Carlton Corporation, failed to make the interest payment due in November 1974. Negotiations then took place between the parties, who, in February 1975, signed an agreement to modify terms of the note and the amount of the indebtedness guaranteed by the guarantors. As a part of this transaction, a deed of trust on property in Collin County was given as additional security.

In December 1975, Carlton Corporation again failed to pay the monthly interest, and it has made no further payment. Investors Realty continued to send monthly statements of interest, which were marked “past due.” On March 17, 1976, Carlton Corporation received a letter from the attorney for Investors Realty stating that the note was in default and that the indebtedness was accelerated. This letter is alleged not to be in compliance with the loan agreement because it did not allow ten days time to cure the default.

The notice provision of the agreement is as follows:

Notwithstanding anything to the contrary set forth in the note, the mortgage or this loan agreement, in the event of any default under any such instrument, lender shall have no right to accelerate the maturity of the note, to proceed with foreclosure under the mortgage or to exercise any other remedy unless written notice of default has been delivered to borrower and borrower has failed to cure such default within ten days thereafter.

On March 22, 1976, Investors Realty filed this action against Carlton Corporation and the guarantors for principal and accrued interest on the note. Concurrently, the trustee under the deed of trust posted notices of sale for April 6, 1976. The defendants counterclaimed for an injunction and on April 5 obtained a temporary restraining order stopping the sale.

Defendant’s application for temporary injunction was heard April 29, 1976. Meanwhile, on April 15, the attorney for plaintiff Investors Realty delivered to an officer of Carlton Corporation in person the following letter.

We represent and write on behalf of Investors Realty Trust. We hereby notify you, and reaffirm all notices previously given to you, that you are presently in default under the terms of the loan agreement dated July 3, 1973, between the Carlton Corporation and Investors Realty Trust and under the terms of your promissory note dated July 3, 1973, to Investors Realty Trust in the original principal amount of $1,500,000 and under the terms of the agreement dated as of February 19, 1975, between the Carlton Corporation and Investors Realty Trust. You have not made the interest payment in the amount of $10,000 for the month of November, 1975, which was due and payable on or before December 1, 1975, nor any monthly interest payment due thereafter.
If you have not secured such default within ten (10) days from the date hereof, please be advised that Investors Realty Trust intends to accelerate the maturity of the note and take such further action as it deems appropriate to protect its legal right.

This letter was not followed by any tender of payment. Accordingly, eleven days later, on April 26, plaintiff’s attorney delivered to the corporation another letter stating that the entire indebtedness evidenced by the note was accelerated and was then due.

Receipt of these letters was stipulated at the temporary injunction hearing on April 29. Nevertheless, the district court issued a temporary injunction restraining plaintiff and its trustee from attempting to sell the property pending final trial of the suit. The court’s order recites findings of a “probable right” on the part of defendants in that they presented evidence showing (1) that plaintiff had failed to give notice of default and acceleration pursuant to the loan document, (2) that a prior course of conduct of the parties in negotiation and restructuring of indebtedness when interest payments had not been paid supported defendant’s allegations that plaintiff had waived its right of acceleration and foreclosure and was estopped to exercise that right, and (3) that defendants were confused by various statements and letters from plaintiff concerning the amount to be paid in order to cure the default.

We conclude that none of these recited grounds establishes a probable right on the part of defendants to an injunction restraining the trustee’s sale. Much of the material in the briefs of both parties concerns whether the notice of March 17, 1976, complied with the requirements of the loan agreement. We regard that point as immaterial in view of the later notices of April 15 and April 26 above mentioned. Appellees do not contend that these later notices did not comply with the notice requirements of the loan agreement. The March 17 notice may have affected the validity of the posting for the trustee’s sale on April 6, but that matter is now moot because no sale was held on that date.

Neither can the temporary injunction be sustained on the ground of waiver or estoppel based on a prior course of conduct. The only conduct alleged in this contention is that in February 1975, plaintiff negotiated with defendants and entered into a modification of the loan agreement, which included acceptance of new security, and that when defendant again stopped making interest payments in December 1975, plaintiff attempted to obtain some satisfactory adjustment of the indebtedness for approximately four months before directing its trustee to post notices of sale. This evidence fails to raise an issue of either waiver or estoppel. The situation is far removed from that in Vaughan v. Crown Plumbing & Sewer Service, Inc., 523 S.W.2d 72 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ), on which defendants rely. There the noteholder had repeatedly accepted late installment payments, but when another payment was four days late, he gave notice of acceleration and on the following day declined a tender of the installment currently due. The court went no further than to say that late acceptance of installments raised an issue of waiver of the right of acceleration in the absence of some notice that timely payments of future installments would be strictly required.

Whatever cogency defendants’ waiver and estoppel contentions may have with respect to the March 17 notice of acceleration, they can have none with respect to the notices of April 15 and April 26. When Carlton Corporation received the notice of April 15, it could have been under no misapprehension concerning plaintiff’s intention to demand full payment of the past due interest within ten days, and could not have been justified in relying on any previous course of conduct or negotiations between the parties as excusing further delay in payment. There can be no estoppel when the party claiming the estoppel has the knowledge or the means of knowledge of the facts which the party to be estopped is alleged to have represented by his acts, conduct or silence. Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 839 (Tex.1968).

The recital concerning defendants’ confusion about the amount demanded to cure the default is likewise without support in the evidence. The record shows that plaintiff sent Carlton Corporation monthly notices concerning the amount of interest due. The confusion is alleged to have resulted from the fact that on the same day the corporation received the notice of March 17 purporting to accelerate the entire balance of the indebtedness, it also received one of the routine monthly notices stating the amount of interest due. Whatever uncertainty may have existed at that time must necessarily have been dispelled by the-later notice of April 15 demanding payment of all past due interest within ten days. The letter clearly states that the principal will be accelerated if the past due interest is not paid within that time. No uncertainty is alleged with respect to the amount of interest then due. Defendants failed to tender that amount or any part of it within the ten-day period allowed. Consequently, they are in no position to assert that there was confusion concerning the amount of the payment required to avoid acceleration and foreclosure. We hold that plaintiff’s notice of acceleration on April 26 was in strict compliance with the provisions of the loan agreement and that its right to proceed with the trustee’s sale was then complete.

A trial judge has broad discretion to issue a temporary injunction, but he abuses that discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). Since we find no reasonable basis for concluding that a probable right exists in this case, the order of the trial court is reversed and the temporary injunction is dissolved.


author: EVANS, Justice.

text:
    Dean JOYNER et al., Appellants, v. ALBAN GROUP, INC., Appellee.
    No. 16719.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 15, 1976.

      Ross, Banks, May, Cron & Cavin, Daniel H. Johnston, Jr., J. Timothy Sisk, Houston, for appellants.
    Philip A. Donisi, Howard A. Lang, Jr., Houston, for appellee.
   EVANS, Justice.

Alban Group, Inc. brought this action on sworn account against Dean Joyner and Haversack Wine Company for certain design and art work performed on behalf of Haversack Wine Company. After a non-jury trial, the trial court rendered judgment against both defendants for the amount of the account in the sum of $12,-720.37 plus interest, attorney’s fees and costs. Both defendants have appealed.

It is first contended that the evidence does not support the judgment in favor of Alban Group, Inc. because the testimony of Johnny Alban, president of Alban Group, Inc., suggests that the company was a sole proprietorship during part of its dealings with Haversack Wine Company.

The invoices forming the basis for the account are captioned “Alban Group, Inc.” and bear dates which begin in May 1974 and end in December of that year. The testimony of Johnny Alban indicates that the company was incorporated in November 1974 and that prior to that time the business was operated as a sole proprietorship.

The plaintiff’s petition is verified by an affidavit executed by Johnny Alban, as president of Alban Group, Inc., which represents that Alban Group, Inc. is the owner of the account upon which the suit is based. In response to request for written admissions, Haversack admitted that the items forming the basis for the account had been sold to it by Alban Group, Inc. This constitutes a judicial admission conclusively binding upon Haversack, notwithstanding that a formal tender of the admission was not made during trial. McDonald, Texas Civil Practice, Vol. 2, Sec. 10.08, pp. 558-559. Although Alban’s testimony indicates that a substantial portion of the work was performed prior to the date of the formal incorporation of Alban Group, Inc., the evidence supports the trial court’s finding that the cause of action belonged to the Alban Group, Inc. See Boca Chica Hardware Co. v. AG—Spray Supply Company, 479 S.W.2d 107, 109 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.).

It is next contended that the trial court’s judgment against Dean Joyner is not authorized by the pleadings or supported by the evidence.

Although the plaintiff’s petition designates Dean Joyner and Haversack Wine Company as a singular “defendant,” no exceptions were filed on behalf of either defendant. Haversack Wine Company and Dean Joyner each filed separate answers to the petition, and Joyner specifically denied that he had done business with the plaintiff as an individual, claiming that he was an officer of Haversack Wine Company and that any indebtedness was the debt of that corporation. The face of the record shows that Joyner was fully aware that he was being sued on the account in his individual capacity.

The question then is whether the evidence supports the trial court’s judgment against Joyner. This court holds that it does not.

Haversack Wine Company was incorporated in Texas on February 19, 1974. The plaintiff’s president, Mr. Johnny Alban, testified that he was first contacted by Mr. Joyner in March or April 1974 to design the label or “corporate image” for Haversack Wine Company. Alban testified that when he first started doing the work he assumed he was dealing only with Joyner, but that he never made any inquiry to determine whether or not the Haversack Wine Company was incorporated.

The use of the word “company” in a business name is sufficient to charge a person dealing with the business with notice that it may be incorporated. Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994, 999 (1922). See also Johnson v. Armstrong, 83 Tex. 325, 18 S.W. 594 (1892). There is no question that Alban knew he was performing the work for Haversack Wine Company and he thus was placed upon inquiry of its corporate status. This court finds no evidence to support the trial court’s finding that Joyner held himself out to Alban as doing business as a proprietorship.

The judgment against Haversack Wine Company is affirmed. The judgment against Dean Joyner is reversed and rendered.

Costs of appeal and in the court below are taxed one-half against Alban Group, Inc. and one-half against Haversack Wine Company.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    BARKER & BRATTON STEEL WORKS, INC., Appellant, v. The NORTH RIVER INSURANCE CO., Appellee.
    No. 18907.
    Court of Civil Appeals of Texas, Dallas.
    July 22, 1976.
    Rehearing Denied Aug. 19, 1976.

      Milam L. R. Wade, Dallas, for appellant.
    Paul D. Schoonover, Vial, Hamilton, Koch, Tubb, Know & Stradley, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Barker & Bratton Steel Works, Inc., a steel fabricator, brought this action against Concrete Structures Company, a general contractor, and its surety, North River Insurance Company, for a balance due in the sum of $25,322.14 for materials supplied. North River answered and filed its motion for summary judgment in which it admitted liability for the sum of $232.04 which was paid into the registry of the court and requested the court to sever the cause of action against it from the other defendant. The trial court sustained the motion for summary judgment, awarded the sum of $232.04 to Barker & Bratton, denied any further relief against the surety, and ordered a severance. Barker & Bratton appeal this limited judgment alleging that a genuine issue of material fact exists that it is entitled to a trial on the merits of this larger claim against the surety on the payment bond. We affirm the judgment.

The steel fabricator entered into a subcontract with the general contractor to supply certain materials for a project to construct “mini-warehouses.” It asserts claims of entitlement to moneys from the general contractor surety on the theory that it has a materialman’s lien. It not only admits that it did not timely file the affidavits required by Tex.Rev.Civ.Stat. Ann. art. 5453 (Vernon Supp.1975) but also admits that it did not give notice to the surety as alternatively provided in Tex.Rev. Civ.Stat.Ann. art. 5472d (Vernon Supp. 1975). Since it has failed to comply with the statutory requirements there is no lien on the property, and, therefore, no claim against the payment bond as provided by the above statutes. Anderson v. Clayton, 494 S.W.2d 650 (Tex.Civ.App.-Dallas 1973, no writ).

However, appellant contends that it is entitled to payment by the surety on the payment bond on a theory of waiver by the owner and general contractor of any defect in the mechanic’s lien affidavit or the timely filing thereof. In opposition to the motion for summary judgment the steel fabricator filed summary-judgment evidence in the form of affidavits from its officers relating to conversations between them and Dan Swihart, a partner in the general contracting firm. These affidavits assert that Swihart came to the steel fabricator’s offices two months after the delivery of the material in question but before the lien affidavit was due or filed and said: “The bonding company has agreed to pay Barker & Bratton’s claim in full immediately and I am on my way to the bonding company’s office to pick up the check. I want you to deliver the balance of the metal roof decking on the job site this afternoon so that my man can get to work on it first thing in the morning.” The reply from appellant’s officer was: “We will be glad to deliver the material to your job site within a couple of hours just as soon as you get back from picking up the check at the bonding company and delivering it to us.” Swihart is then alleged to have replied: “Are you telling me I am lying to you?” The reply was: “No, sir; I am only using sound business judgment; and I must remind you that this account has been owing to this company for a year and we have had numerous promises of payment but have not received any money to date.” Swihart’s reply: “I’ll get you your check and bring it in here and lay it on your desk.” The summary-judgment evidence reveals that Swihart did not return with the check. Further, the evidence contains conversations between the steel fabricator’s officials and the president of the owner of the “mini-warehouses.” These conversations pertain to negotiations between the owner and investment companies in Florida and Dallas and contain assurances that the steel fabricator’s claim would be fully protected by a payment bond.

Appellant relies upon the evidence related above to show that the owner and general contractor waived any defect as to the timely filing of the mechanic’s lien affidavit. The surety urges that the conversations do not constitute a waiver of anyone’s rights under the mechanic’s lien statute and alternatively that the owner or contractor cannot waive the surety’s rights.

We find no waiver even if the affidavits filed in opposition to the motion for summary judgment are taken as true. The conversations described therein do not indicate waiver by the owner or general contractor. A waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the* relinquishment of such right. Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Comm’n App.1933, jdgmt. adopted). There is no summary-judgment evidence of an intentional relinquishment of rights or of conduct warranting an inference of such relinquishment of rights of the owner, contractor or surety company.

We find it unnecessary to pass on the surety company’s argument that the owner or contractor cannot waive the rights of the surety.

The judgment of the trial court is affirmed.

Affirmed.


author: FRANK D. CONNETT, Jr., Special Judge.

text:
    STATE of Missouri ex rel. Elvin BOONE, Appellant, v. JACKSON COUNTY, Missouri, Respondent.
    No. KCD 27772.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1976.

      James L. Swarts, Jack C. Terry, Independence, for appellant.
    Will Bunch, County Counselor, Richard F. Schmidt, Special Asst. County Counselor, Kansas City, for respondent.
    Before PRITCHARD, C. J., ELLIOTT and McFARLAND, JJ., and CONNETT, Special Judge.
   FRANK D. CONNETT, Jr., Special Judge.

Relator filed a petition with the respondent County Legislature of Jackson County. This petition was signed by residents of an unincorporated area of Jackson County known as Blue Summit, pursuant to Section 72.080, RSMo.1971 Supp., seeking permission to hold an election to incorporate as a city. The petition was denied by the respondent. Relator then had issued an alternative writ of mandamus from the circuit court, which was quashed after a hearing on the return, and relator has appealed. Those interested in the history of the efforts to incorporate this area may read In re Town of Blue Summit, 461 S.W.2d 332 (Mo.App.1970).

On oral argument before this court, respondent contended that the appeal should be dismissed because mandamus is not the proper remedy; that relator could and should have appealed from the decision of the county legislature pursuant to Section 49.230, RSMo.; that since there was an adequate remedy at law mandamus would not lie. In re Incorporation of City of River Bend, 530 S.W.2d 704, 708 (Mo.App.1975), holds such to be the law. If respondent had moved to dismiss on this ground in the trial court when the alternative writ of mandamus was issued in September of 1974, it would have been sustained. However, State to the Use of Nee v. Tippin, 217 Mo.App. 480, 268 S.W. 665 (Mo.App.1925), states that the claim that mandamus is not the proper remedy must be raised at the trial court, and to raise it for the first time on appeal comes too late. To dismiss the case on such a motion raised at this late date would permit respondent to gain an advantage by their own dilatoriness. Further, mandamus is an adequate vehicle to bring before the court the issues between the parties in this case; thus, respondent’s contention that the appeal should be dismissed is denied. See also Subsection 1 of Section 512.160 RSMo.

Relator in this case presented a petition containing the requisite number of signatures to respondent legislature. The legislature, pursuant to Jackson County ordinances, had an investigation made, held a hearing and denied the petition on the grounds that the petitioners had not met the objections of the Jackson County Planning Commission and Department of Public Works and the Clerk of the legislature, and that the petitioners had failed to state facts showing that the proposed city would have the ability to furnish normal municipal services within a reasonable time after its incorporation.

Section 72.080, RSMo. 1971 Supp. provides that a certain number of qualified electors of an unincorporated area may present a petition to the governing body of their county asking for an election to be held to incorporate the area sought to be incorporated. The petition must include a plat of the area, state the population and assessed valuations of both real and personal property in the area and state facts showing the proposed city shall have the ability to furnish normal municipal services within a reasonable time. The statute then provides that if the governing body shall be satisfied that the required number of qualified electors have signed the petition, it shall declare an election. The parties seem to agree that the petition in this case did on its face conform to the statute.

The parties agree that the petition made allegations as to the proposed city’s ability to furnish normal municipal services within a reasonable time after its incorporation. The respondent does not admit that it does state such facts. However, the parties do not argue the point so we pass it by with the observation that the allegations of the petition in this case appear to be a statement of conclusions rather than a statement of facts from which a conclusion might be drawn that the proposed city could provide such services. Our function in this case is not to review the decision of the respondent in denying the petition but to determine if the respondent had the power to deny the petition for any reason since it was sufficient on its face.

Relator contends that respondent’s sole obligation when a petition is presented is to check the signatures and then declare and hold the election if there is enough qualified signatures on the petition. Respondent’s response is that it is not so limited; that if all they are to do is to count the signatures — a ministerial act — then the language requiring a statement of the proposed city’s ability to furnish normal municipal services within a reasonable time is meaningless. This would be true if the statement were for the respondent’s benefit, but it is not meaningless if the statement is for the consideration of those electors to whom the petition is presented for signing, nor would it be meaningless to those going to the polls to cast their vote on the proposition.

The respondent takes the position that the governing body has an obligation to investigate the proposal to incorporate and determine whether or not it is feasible and beneficial to have the area incorporated and, if not, to refuse to hold the election on the proposed incorporation. Respondent further contends that even if the statute limits the governing body of a county to counting the signatures, it does so only for those governing bodies which are county courts; that governing bodies of charter counties, such as Jackson County, have a broader power by virtue of their charter and may refuse to declare an election to incorporate which in the judgment of the governing body (here the county legislature) is not feasible or beneficial.

We shall rule this latter contention first. This statute is not a grant of power to the governing body of counties. It is a grant to the majority of the electors of an unincorporated area of the right to incorporate. It sets out the method of so doing. The statute designates the governing body of the county as the agency to carry out the election if the petition conforms to the requirements of the statute. Neither the statute nor Article VI of the Missouri Constitution grants any power to charter counties to limit the right of people of unincorporated areas to incorporate.

Respondent relies upon Section 18(c) of Article VI of the Missouri Constitution as it appeared before adoption of a new section at the General Election, November 3, 1970, by quotation of the former language, “ * * may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction and planning and zoning, in the part of the county outside incorporated cities * * * ” The quoted words were eliminated in the new section, but as newly adopted, Section 18(c) does not affect the grant of the power to the majority of the electors of an incorporated area of the right to incorporate under the statute as above discussed.

We also note that prior to the amendment to this statute in 1971 it provided that the designated agency to whom the petition was to be presented was the county court. When the statute was amended in 1971 the words “governing body of the county” were substituted for the words “county court”. From this we deduce that the state legislature had no intention of treating counties with county legislatures any different from counties with county courts. The term “governing body of the county” more aptly described county legislatures than they do county courts.

We rule that respondent County Legislature as the governing body of a charter county has the same obligation and role as does the governing body of any other county in reviewing petitions to incorporate.

We next consider what the obligation or role of the governing body is when a petition to hold an election to incorporate is presented to it. Certainly, the statute requires it to satisfy itself that the required number of qualified electors have signed the petition. Since no other agency is designated and the petition is filed with the governing body of the county, it is apparent that this governing body is required to determine the sufficiency of the statements to be contained in the petition. But nothing in the statute authorizes them to substitute their judgment for that of the electors as to whether or not the proposed incorporation is feasible and beneficial. That is apparently what the respondent did when it found petitioners had not met the objections of the proposed incorporation that were raised by the joint report of the Jackson County Planning Commission, Director of Public Works and Clerk of the Legislature.

It appears to us that the function of the governing body is to determine the legality of the proposed incorporation before declaring an election. Whereas it is the function of the voters to determine if the proposed incorporation is feasible and beneficial to their interest.

In the past it has been determined that under this statute county courts (although delegated no authority in the creation of cities [see State v. Crismon, 354 Mo. 174, 188 S.W.2d 937 (Mo.banc 1945); and In re City of Uniondale, 285 Mo. 143, 225 S.W. 985 (1920)]) do have the power to deny the incorporation when to grant the incorporation would be to do so “knowing its order would be held void on review,” Petition to Incorporate The City of Duquesne, 322 S.W.2d 857 (Mo.1959). In this case the Supreme Court, after an extended review of prior cases, upheld the action of the County Court of Jasper County in denying a petition under Section 72.080 RSMo 1949 to incorporate an area which was not an unincorporated city or town, as the statute then required before the words “other area of the state” were added in the 1971 amendment.

From the Duquesne case we conclude that the respondent could investigate and if it determined that the facts stated in the petition showing that the proposed city should have the ability to furnish normal municipal services within a reasonable time were false, or that the facts stated patently showed that the city could not furnish normal municipal services within a reasonable time, it would be authorized to deny the petition. In fact, it would be its duty to do so to prevent the illegal creation of a city or to prevent the useless expense of holding an election to create a city that was subject to being ousted by a writ of quo warranto. This is not to say that the respondent may substitute its judgment for that of the petitioners or the voters as to whether or not a proposed city could furnish normal municipal services within a reasonable time, or what services would be normal or what time would be reasonable, or that the decision would not have to be supported by competent and substantial evidence and not arbitrary and capricious. Sections 49.230, 536.140, RSMo.

It appearing that the respondent does have the power to investigate the sufficiency of the petition and under certain limited circumstances to deny a petition, the granting of such petition is not a ministerial act; thus, mandamus will not lie. The judgment of the trial court in quashing the alternative writ of mandamus is affirmed.

Whether or not this power was exercised arbitrarily and capriciously or the decision supported by competent evidence we do not decide. This inquiry was foreclosed when appellant elected to petition for the issuance of a writ of mandamus rather than to appeal the decision.

All concur.


author: SWOFFORD, Judge.

text:
    James L. SLOAN, Respondent, v. Joan PARIS, Appellant.
    No. KCD 27919.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      James S. Cottingham, John M. Gibson, Independence, for appellant.
    George E. Kapke, Joe F. Willerth, Piedi-monte & Cochran, Independence, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The respondent-plaintiff (hereafter Sloan) recovered judgment on a promissory note wherein the appellant-defendant (hereafter Paris) was a co-maker with her former husband, now deceased, in a court-tried suit. Sloan’s petition is in conventional form.

The note, by its terms, was dated December 6, 1967, in the face amount of $22,-000.00, payable $500.00 per month beginning December 10, 1967, with interest at the rate of 6% per annum, to be deducted from each such payment and the balance of each such payment to be applied to the principal. It further provided for the additional payment of 15% as attorney’s fees in the event it became necessary to employ counsel to effect its collection.

Paris, in her first amended answer, coupled a general denial with the affirmative defenses that if she “truly” signed the note it was obtained through fraud and misrepresentation; that there was no consideration for the note; and, that Sloan failed to file a claim against the estate of Gene Paris, her deceased husband, during the administration of his estate in the probate court.

The only evidence offered at the trial October 22,1974, aside from the promissory note, was the testimony of Sloan, the payee thereunder, and Paris, the surviving payor-maker.

Sloan testified that prior to May 10,1967, he was the owner of the Sloan Chemical Company located in Kansas City, Missouri, engaged in selling maintenance and janitor supplies and chemical equipment; that Gene Paris had been employed by that company as sales manager; and, that in May of 1967, he agreed to sell the inventory, business equipment and good will of the Sloan Chemical Company to Gene Paris and his wife, Joan Paris. He further testified that the sales price for the business included the assumption by the Parises of some outstanding accounts payable and the execution by them of a promissory note for the balance of the sales price, such note to be payable at the rate of $1,000.00 per month. He could not recall the exact principal amount of the original note, but testified the sale price of the business was $27,-000.00. On another occasion during the trial, he stated the sale price was $30,000.00 net to him. In the fall of 1967, Gene Paris was having difficulties making the monthly payments and Sloan agreed that a new note would be executed by the Parises in the amount of $22,000.00, payable at $500.00 per month. In accordance with this agreement, the note which is the basis for this suit was executed by Gene and Joan Paris in his presence.

Sloan stated that since December 6, 1967, he had received from the Parises a monthly payment two or three times, and then only minor amounts in payment on the note, which, coupled with some small accounts receivable paid directly to him after the sale, kept the interest paid “approximately”; that since June of 1970, the month of Gene Paris’ death, he had received no payments on the note; that the principal amount due was $22,000.00 plus interest, and that both before and after Gene Paris’ death, he had made repeated demands for payment. He did not file any claim on the note against Gene Paris’ estate.

Sloan stated that both Gene and Joan Paris had signed the purchase contract for the business in his presence, although he had not brought this contract to the trial. Neither had he brought his business records as to the payments made to him on the purchase price, although he believed the last payment on the note was in October or November, 1969.

He also testified that Paris, as his sales manager, knew as much about the company’s operation as he did, and had free access to the books, profit and loss statements, and business records. Joan Paris also worked in the office on occasions and also made some sales on commission.

Paris identified the promissory note and admitted that she and her husband signed it on December 6, 1967, but she did not remember signing the original purchase contract or note and had been unable to locate copies in her records. She testified from her records that the following payments and credits had been made against the note in suit: December, 1967, $500.00; February, 1968, $500.00; March, 1968, $500.00; April, 1968, $1000.00; August, 1968, $500.00; October, 1968, $500.00; November, 1968, $500.00; and additional credits of $339.20 and $312.16 (apparently for accounts payable collected by Sloan) for a total of $4,651.45. She further stated that in February or March, 1969, her husband, Gene Paris, told Sloan in her presence that he had paid enough for the business and was not going to pay any more money.

She stated that at the time of the negotiations for the purchase of the business, Sloan stated that he “was expecting” Paris could make $25,000.00 net per year from the business; that, “I believe Mr. Sloan represented that”; and “he made it sound like it was there to be made”. She further stated that she had done some bookkeeping for the company and answered telephones in the office.

The court below entered judgment in favor of Sloan on the principal of the note in the amount of $17,348.55 ($22,000.00 less the full amount claimed by Paris to have been paid upon or credited to the note amounting to $4,651.45), plus $8,737.25 interest, and $3,912.87 attorney’s fee, and for costs.

Paris filed a motion for a new trial, which was never ruled on by the trial court, and this appeal followed.

Neither party requested nor did the court below make specific findings of fact and conclusions of law.

The issues remaining in this case on appeal require definition. It is noted that Paris has abandoned any claim of fraud or misrepresentation in the sale of the business by Sloan to the Parises; any question as to the execution of the note; the claim of failure of consideration; and, her defense of Sloan’s failure to file a claim in the probate court during the administration of her husband’s estate.

In her Reply Brief filed herein, she states:

“While Defendant-Appellant disagrees with the Trial Court’s finding that Plaintiff-Respondent’s fraud was not established and that consideration for the subject business transaction had not failed, Defendant-Appellant does not base her appeal on those points. Nor is it disputed that a promissory note was executed on the 6th day of December, 1967 in the amount of $22,000.00 and that she signed this note realizing that $22,000.00 appeared as its value. * * * These matters are not at issue and need not be discussed.” (Emphasis supplied)

Likewise, she has never urged upon this appeal her pleaded defense as to Sloan’s failure to file a claim on the note in the probate court and thus has abandoned such defense. Indeed, this alleged failure of Sloan would constitute no defense since she was a surviving co-maker of the note and as such, is primarily liable on the note. Burns v. Webber, 399 S.W.2d 446, 448[1, 2] (Mo.App.1966). See also, Citizens Trust Co. v. Ward, 195 Mo.App. 223, 190 S.W.2d 364, 367[6] (1916).

From a study of the record and briefs on this appeal, the position of Paris and the basis of her request for a reversal of the judgment may be thus summarized: She assigns error below because the face amount (consideration or value) of the note of $22,000.00 was not the amount of the Paris indebtedness to Sloan on December 6, 1967; that it was “mathematically impossible” that this amount was due on the purchase price on that date; and, that, in any event, the court erred in the computation of interest and attorney’s fees.

It is true that the record evidence in the trial below fell far short of a full exposition of the Paris-Sloan transactions on and subsequent to May 10, 1967. There was, however, substantial evidence upon which the court below could properly find that the principal balance of the indebtedness due from the Parises to Sloan on December 6, 1967 was $22,000.00.

Sloan testified that the purchase price of the business on May 10, 1967 was “around” $27,000.00 or $30,000.00; that payments had been made thereon and credits given thereon prior to December 6,1967; and, that the note in suit represented unpaid principal plus interest.

Paris testified that she did not remember executing the original purchase contract or the original note, but unequivocally admitted the execution of the $22,000.00 note in suit with full knowledge of its terms. She further testified, as follows:

“Q. Now will you tell me again what was the total amount that you and your husband paid to Mr. Sloan on this note * * *
A. The total amount we paid Mr. Sloan—
Q. On this note.
A. All right. On this note with (sic) the amounts that I just gave you.
Q. So that would be a total of approximately $4650.00?
A. Yes.” (Emphasis supplied)

An additional factor is persuasive in support of the judgment below.

For many years, a statutory presumption, bolstered by many appellate decisions, existed, that every negotiable instrument was prima facie deemed to have been issued for a valuable consideration and a signer thereof to have become a party thereto for value. Section 401.024 RSMo 1959; Baum v. Abel, 379 S.W.2d 164, 166[6, 7] (Mo.App.1964); Moore v. Dickerson, 137 S.W.2d 495, 496[2] (Mo.App.1940); Vandivort v. Dodds Truck Lines, Inc., 444 S.W.2d 229, 230-231[3] (Mo.App.1969); Fitzgibbon Discount Corporation v. Hatchett, 427 S.W.2d 786, 789[5] (Mo.App.1968).

While the case at bar is governed by the Uniform Commercial Code (U.C.C.), effective in Missouri July 1, 1965, and while the UCC does not specifically incorporate the above statute on presumption, Section 401.024, the principle of such section and the decisions recognizing such presumption remain the law in this state.

Section 400.3-408 RSMo 1969 (UCC) provides in part:

“Consideration
Want or failure-of consideration is a defense as against any person not having the rights of a holder in due course (section 400.3-305), except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind. * * *”

Research has disclosed no decision interpreting this section nor delineating its effect upon the prima facie presumption of consideration and value rule under Section 401.024 RSMo, supra, and the former decisions under that statute. However, the annotations under Section 400.3-408 contain the Comment, “This section is basically a restatement of prior law.”

Section 400.1-103 RSMo 1969 (UCC) provides, in part:

“Unless displaced by the particular provisions of this chapter, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.” (Emphasis supplied)

Sloan identified the note here involved and it was admitted into evidence. He was required to go no further to establish the presumption of consideration and value. As above noted, Paris admitted its execution but stood on the position that this note had been partially paid, an affirmative defense, placing the burden of proof upon her to prove such payment. This burden she assumed and successfully proved the payments made after December 6,1967, but she offered no substantial proof of her right to credit on the note in suit for any payments which may have been made prior to that date. Her testimony on this point was vague, fragmentary, unconvincing and of little, if any probative value. She made no attempt by means of discovery or compulsory process, or other means, to develop the evidentiary facts upon which her claim in this area rested, and thus failed to meet her burden of proof. The trial court properly gave her credit for all amounts to which she was entitled. Paris’ Points I and II on this appeal are ruled against her.

Paris’ Point III is meritorious. She asserts that the court erred in its mathematical computation of the judgment, after allowing her credit for the $4,651.45 which her undisputed evidence showed was paid on the $22,000.00, in the amounts of interest and attorney’s fees awarded. The note sued on, in pertinent part, is in the following terms:

"$22.000.00 KANSAS CITY, MO. December b. 1967
FOR VALUE RECEIVED, the undersigned jointly and severally, promise to pay to the order of James L. Sloan the sum of Twenty two thousand and 00/100 Dollars In the following Installments - ' :
$500.00 on the 10th day of December . 19fe7 and $500.00 on the 10th day of each succeeding month thereafter with interest at the rate of ⅛⅜ per annum to be deducted from each payment, the balance of each payment, to be applied to the principal. ’ ■ *"

Further, the note provided for the payment of costs “and 15% attorney’s fees”, in judicial proceedings to collect the note.

The court below entered its judgment upon the following computation:

Principal of Note $22,000.00
Credit for all payments by Paris 4,651,45
Balance due — 1968 $17,348.55
Interest at 6% compounded 1968 through 1974 8,737.27
Principal and Interest due 1/1/75 $26,085.82
15⅜ Attorney's fee 3,917.87“
$30,003.69

It is obvious that in so doing, the court awarded Sloan compound interest at 6% for the years 1968 through 1974. Under the facts here revealed, this was improper.

There is a Missouri statute, first adopted in 1845, controlling today, substantially unchanged since its first enactment and undisturbed by the adoption of the Uniform Commercial Code, Section 408.080 RSMo 1969, which states, in pertinent part:

“Parties may contract, in writing, for the payment of interest upon interest; * * (Emphasis supplied)

The courts of this state adhere to this principle, that interest on a promissory note (or other contractual obligation) may not be compounded in the absence of an agreement that interest is to be computed in that manner. Stoner v. Evans, 38 Mo. 461 (1866); St. Louis Gas-Light Company v. City of St. Louis, 11 Mo.App. 55, 78 (1881); Tynes v. Terrill, 19 S.W.2d 505, 506[1] (Mo.App.1929); Edwards v. Northwestern Mutual Life Insurance Company, 183 S.W.2d 359, 363[3] (Mo.App.1944); 45 Am.Jur.2d, Interest and Usury, Section 83, pp. 74-75.

An example of such a contractual agreement, held to justify compound interest, is found in State ex rel. Northwestern Mutual Life Insurance Company v. Bland, 354 Mo. 391, 189 S.W.2d 542, 547-548[19-20] (Mo. banc 1945), quashing the opinion in Edwards, supra, on other grounds, where the document involved expressly provided:

“ * * * in case of the non-payment of any interest on said loan as above provided, such interest shall be added to and become a part of the principal of said loan and shall bear interest at the rate aforesaid.”

The promissory note involved in this action contains no such express provision for compound interest. On the contrary, it provides that each payment shall be applied first to accrued interest and the balance of such payment to be applied to reduce the principal. Simple interest at 6% is all that can be charged against the co-maker, Paris.

Paris testified from her business records as to the amounts paid or credited against her note, giving the year and month of such payments, but not the exact dates. For the purposes of this suit, it can be properly assumed that such payments or credits, as were made, were made on the date of the month (10th) as provided in the note, without doing violence to the rights of either party. Paris was unable to account for the payment or credit in the amount of $339.29, except that it was applicable to the note in 1968. There was no objection or evidence to the contrary so it is properly included in the calculations for that year. Accordingly, the computation on the note, supported by competent evidence, and amenable to the applicable law, should have been as follows:

Interest Principal Balance Date Amount
$ $22,000.00 12/ 6/67 $
14.67 (4 da) 485.33 21,514.67 12/10/67 500.00
2/10/68 500.00 215.14 (2 mo) 284.86 21,229.81
* This figure should be, even under the method used by the court below, the sum of $3912.87, i. e. 15% of $26,085.82.
Date Amount Interest Principal Balance
3/10/68 500.00 106.14 (1 mo) 393.86 20,835.95
4/10/68 1000.00 104.18 (1 mo) 895.82 19,940.13
8/10/68 500.00 398.80 (4 mo) 101.20 19,838.93
10/10/68 500.00 198.36 (2 mo) 301.64 19,537.29
11/10/68 500.00 339.29 839.29 97.68 (1 mo) 741.61 18,795.68
2/20/69 312.16 313.23 18,795.68 (3 mo, 10 da) ( -$1.07 )
$ 1.07
2/20/69-2/20/70 (1 yr) 1127.74 18,795.68
2/20/70-2/20/71 (1 yr) 1127.74 18,795.68
2/20/71-2/20/72 (1 yr) 1127.74 18,795.68
2/20/72-2/20/73 (1 yr) 1127.74 18,795.68
2/20/73-2/20/74 (1 yr) 1127.74 18,795.68
2/20/74-12/19/74(9 mo 29 da) 936.62 18,795.68
Interest $6576.39 Principal $18,795.68

Accordingly, the judgment herein is reversed and the cause remanded to the trial court with directions to enter judgment in favor of the plaintiff-respondent, James L. Sloan, and against the defendant-appellant, Joan Paris, in the sum of $18,795.68 as principal, plus interest of $6576.39, plus attorney’s fees of $3808.81, or a total of $29,-177.88, plus the costs of this action. Such judgment is to be entered as of December 19, 1974, the date of the original judgment herein. Rule 84.14.

All concur.


author: GUNN, Judge.

text:
    Helen AUBUCHON, Plaintiff-Appellant, v. GASCONADE COUNTY R-1 SCHOOL DISTRICT, Defendant-Respondent.
    No. 37409.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.

      McQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for plaintiff-appellant.
    Randolph C. Puchta, Hermann, for defendant-respondent.
   GUNN, Judge.

Plaintiff, a permanent elementary school teacher with the Gasconade County R-l School District, appeals from a judgment of the circuit court upholding a decision by the Gasconade County R-l School District Board of Education to terminate her contract because of an excessive and unreasonable absence from her teaching duties. On appeal plaintiff argues that § 168.114-1(5) RSMo. 1969, under which she was dismissed, is unenforcible in the absence of properly adopted regulations defining excessive and unreasonable absence; that there was insufficient evidence to support the Board’s finding; and that she was not accorded a fair and impartial hearing. We affirm.

The occurrence which precipitated the Board’s action was an unexcused five day absence between March 3-7, 1975. On Sunday, March 2, 1975 at approximately 8:30 a. m., plaintiff telephoned the home of her supervisor, Mr. Kessler, the Director of Elementary Education in the School District, leaving a message with his wife that: “I think I am coming down with the flu, I do not know when I will be back at school.” Mrs. Kessler relayed this message to her husband later that same afternoon. No substitute teacher was employed for Monday, March 3, or the following Thursday and Friday. On Tuesday and Wednesday, however, a substitute was retained. Mr. Kessler attempted to contact plaintiff at her home by telephone on two occasions, but in each instance the individual he spoke with said that plaintiff was not home and would not return before Friday, March 7. At no time during the week in question did plaintiff contact her supervisors to explain the cause of her absence or to inform them when she would return to work. Plaintiff ultimately returned to work on Tuesday, March 11. (School was cancelled because of weather conditions on March 10.)

Subsequent to her return to class the administration of the school district learned that plaintiff had been in Las Vegas with her husband who was attending a convention. The fact is that plaintiff telephoned Mr. Kessler’s home at 8:30 a. m. on Sunday morning to report that she thought she was becoming ill; a half hour later at 9:00 a. m., she was making her way to Las Vegas with her husband for a week’s stay. When confronted by Mr. Kessler and Mr. Boeger, the Superintendent of Schools, plaintiff admitted being on the trip but claimed that she had been ill prior to and during the time she was in Las Vegas. Plaintiff did admit, however, that she participated in certain activities with her husband in Las Vegas.

The school policy regarding teacher absences was adopted by the Board of Education at an August 8, 1974 meeting. Copies of the policy were prepared and distributed to all teachers at the pre-school workshop which plaintiff attended. In addition, Mr. Boeger explained the policy orally to the assembled teachers. Plaintiff, however, asserted that she had neither read nor received a copy of this policy. Under its terms teachers were allowed eight days sick leave and two days personal leave per year. Sick leave could be accumulated to sixty days. Throughout her eleven years with the district plaintiff had 38 days accumulated sick leave prior to March 3, 1975. Sick leave, however, was to be taken only in the event of actual illness and was not allowed as additional vacation time. Nevertheless, in practice the school had never required medical documentation of illness by absent teachers.

After her absence was brought to their attention by Mr. Boeger and Mr. Kessler, the Board of Education on April 7, 1975 sent plaintiff a letter notifying her that she was charged with “[e]xcessive or unreasonable absence from performance of duties between and including the dates of March 3, 1975 to March 7, 1975, during which period illness was alleged by you to be the reason for your absence from performance of duties, when in fact you had taken a personal pleasure trip.” It further stated that “the intent of these charges is to terminate your contract.” A hearing was held on April 28, 1975 before the Board of Education of the Gasconade County R-l School District for the purpose of inquiring into the charges. The School Board at its May 8, 1975 meeting, after making a finding of facts that plaintiff was not ill during the relevant period but was on a pleasure trip, voted to terminate her contract as of May 9, 1975.

Plaintiff appealed the Board’s decision to the circuit court pursuant to § 168.120 RSMo. 1969. The circuit court upheld the Board’s action, and plaintiff has appealed.

Plaintiff’s first assertion of error is that § 168.114-1(5) RSMo. 1969 under which her contract was terminated is, in the absence of properly adopted and published school regulations, void and unenforceable because it is too vague and indefinite. The relevant section of this statute provides that an indefinite contract with a permanent teacher may not be terminated except for “(5) [ejxcessive or unreasonable absence from performance of duties.” Plaintiff contends that in order for this provision to serve as a basis for termination, the terms “excessive” and “unreasonable” must be explicitly defined in regulations adopted by the School Board under procedures established in § 171.011 RSMo. 1969. We reject plaintiff’s contention. We agree with the circuit court that § 168.114-1(5) is self-executing. The terms, “excessive” and “unreasonable,” though admittedly imprecise, are not so vague and indefinite as to render this statute unenforceable. On the contrary, they are frequently used as the guiding standards of action in statutory as well as case law. In ascertaining their intended meaning in the context of § 168.114-1(5) we must interpret these words in their plain and ordinary usage. Brask v. Bank of St. Louis, 533 S.W.2d 223 (Mo.App.1975).

While it is true that § 168.122 RSMo. 1969 authorizes school boards to establish a teacher absence policy it does not mandate such action as plaintiff contends, and thus a formal policy is not an essential prerequisite to termination proceedings under § 168.-114-1(5). Furthermore, § 168.114-1(4) allows termination for “[wjillful or persistent violation of, or failure to obey the school laws of the state or the published regulations of the board of education of the school district employing him.” If we were to hold that explanatory regulations were required for utilization of subparagraph (5) it would make subparagraphs (4) and (5) synonymous and would render subparagraph (5) totally superfluous. Any violation of the subparagraph (5) regulations would also be a violation of subparagraph (4). Thus, in order to read the statute so that all sections have meaning we must conclude that sub-paragraph (5) is self-executing.

Having reached this conclusion we must determine if there was substantial evidence in the record to support the findings of the Board of Education that plaintiffs absences were excessive or unreasonable. Plaintiff contends that the evidence was insufficient, as the amount of time she was absent from her duties was well within the accumulated sick leave period and because the School Board did not offer any evidence to disprove her claim that she was in fact ill at the time of her trip.

The scope of judicial review of administrative decisions is limited to a determination of whether the decision is supported by competent and substantial evidence. Chapman v. Sanders, 528 S.W.2d 462 (Mo.App.1975). The court may not substitute its judgment for that of the administrative tribunal, but should limit its inquiry to whether the conclusions reached by the tribunal were reasonable under the evidence presented. Merideth v. Board of Educ. of Rockwood R-6 Sch. Dist., 513 S.W.2d 740 (Mo.App.1974). In our determination of the reasonableness of the Board’s action, the evidence must be considered in the light most favorable to the findings of the Board together with all reasonable inferences which may be drawn. Merideth v. Board of Educ. of Rockwood R-6 Sch. Dist., supra. Furthermore, there is a strong presumption in favor of the validity of an administrative determination which may only be overcome by clear and convincing evidence. Saunders v. Reorganized Sch. Dist. No. 2 of Osage County, 520 S.W.2d 29 (Mo.1975). Courts are especially reticent to interfere in cases involving the exercise of a school district’s discretion. Smith v. Consolidated Sch. Dist. No. 2, 408 S.W.2d 50 (Mo. banc 1966). “School authorities are vested with wide discretion in all matters affecting school management, and a court may not ordinarily interfere unless that power is exercised in an arbitrary, unreasonable or unlawful manner.” Saunders v. Reorganized Sch. Dist. No. 2 of Osage County, supra at 35.

The fact that the length of plaintiff’s absence was less than her accumulated sick leave is not really relevant to the outcome of this case. Accumulated sick leave is a device to protect the job security of employees who because of ill health must be absent from work for extended periods of time; it is not intended as additional vacation time to be taken at the employee’s caprice. Thus, the Board’s sole focus of inquiry was whether the specific absence from March 3-7 was unreasonable or excessive. Plaintiff by her own testimony, admitted that she was not too ill to travel to St. Louis, to fly to Las Vegas or to attend convention meetings with her husband. From this testimony the Board could quite rationally draw an inference that plaintiff was not too ill to teach as she maintained. In fact, plaintiff was asked whether “she was too ill to have been at school had she been home, and the answer was, ‘Probably not.’ ”

Nor can we say that the Board abused its discretion in finding this absence to be unreasonable or excessive. In the course of her employment, plaintiff was responsible for instructing a number of young children in a specialized area of study (art), and in the administration’s opinion her absence was detrimental to the educational welfare of these children. Probably the most influential factor in the Board’s decision was plaintiff’s attempt to deceive them as to the reason for her absence. School districts have a right to demand more forthright conduct from their professional employees. Under these circumstances, although the Board had available a less severe course of action rather- than terminating plaintiff’s contract, we cannot say that their decision was an abuse of discretion.

Plaintiff’s final allegation of error is that she was deprived of a fair hearing before an impartial tribunal because the School Board both issued the charge and decided its merits. This allegation is unfounded. The mere fact an administrative body initiates a charge and then tries it does not alone vitiate the proceedings if judicial review is provided. Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570 (Mo.1965). Judicial review of a termination decision is expressly provided by § 168.120 RSMo. 1969. Moreover, the evidence in this case indicates that it was Mr. Boeger, the school superintendent, who recommended initiation of the charge. The issuance of the charge by the Board was a mere formality.

The only remaining question is whether the hearing itself was fair and impartial and conducted by an impartial tribunal free of bias, hostility and prejudice, exercising its authority consistently with fundamental principles of justice. There is no indication on the record that the Board of Education was biased or prejudiced against plaintiff. She was given a full opportunity to present her case. The fact that the Board, which is the sole judge of credibility, found against plaintiff does not give us reason to suspect their fairness. The Board’s determination was a reasonable one under the circumstances. See Stewart v. Bd. of Ed. of Ritenour Consolidated School District R-3, 538 S.W.2d 765 (Mo.App.1976), holding that an agency decision must be supported by findings of fact and conclusions of law under § 536.090 RSMo. 1969 and that a termination of teacher’s employment for excessive or unreasonable absence was unsupported by any school board policy. The Stewart case is readily distinguishable from the situation here where a policy on absences did exist and the Board’s decision was supported by findings of fact and conclusions of law. So, too, is this case distinguishable from Pollard v. Bd. of Ed. Reorg. Sch. Dist., etc., 533 S.W.2d 667 (Mo.App.1976), where the school board failed to specify with particularity the grounds for terminating a teacher’s employment. The basis for terminating plaintiff’s contract is sufficiently specified here.

There being no error the judgment of the circuit court is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . See, for example §§ 287.140, 304.011, 304.-017, 304.019 RSMo. 1969 and §§ 452.305, 452.-340 and 452.355 RSMo. Supp. 1975 for a few statutes making reference of the word “reasonable.” See also Anderson v. St Louis-San Francisco Railway Co., 367 S.W.2d 657, 660 (Mo.App.1963), which notes the frequent use and elastic meaning of “reasonable,” e. g., that “[a] reasonable number of fleas is good fer a dog,” if one fails to take the dog’s well-being into consideration. And, of course, it is primordial criminal law that a defendant’s guilt must be proved beyond a “reasonable” doubt. State v. Woolard, 111 Mo. 248, 20 S.W. 27 (1892). There is also reliance on the “reasonable” juror, S. P. Personnel Assoc., etc. v. Hospital B. & E. Co., 525 S.W.2d 345 (Mo.App.1975), and “reasonable” inference to be drawn from the evidence. Joiner v. Kurt’s Chip-A-Way Park, Inc., 510 S.W.2d 773 (Mo.App.1974). Thus, the use of “reasonable” or “unreasonable” in a statute appears to be reasonable.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Earl HALL, Defendant-Appellant.
    No. 37363.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.
    Mary Louise Moran, Frank Fabbri, III, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Charles B. Blackmar, Sp. Asst. Atty. Gen., Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

After trial by jury for the offense of robbery, first degree, defendant was sentenced by the court under the Second Offender Act to serve seven years in the Department of Corrections. §§ 560.120, 556.-280 RSMo 1969. He appeals. On appeal his sole contention is that the trial court erred in denying his pre-trial motion to suppress identification testimony and allowing testimony concerning his identification at trial because the identification procedures were so unduly suggestive and conducive to irreparable misidentification as to be a denial of due process of law. We find the contention to be without merit and affirm.

On March 10, 1975, the victim, Mrs. Lena Louise Wright, was walking on a street in the City of St. Louis. The defendant walked toward her, and as he did uttered some words. Mrs. Wright observed the defendant walking toward her for some three to five minutes prior to the offense. He passed her but returned and grabbed her purse. She struggled and began screaming. She was struck. She finally released the purse. Defendant held the victim at arm’s length as he wrestled the purse from her. The day was bright and clear. She notified the police and described the assailant in some detail, including a description of his clothing and as having acne or “spots” on his face. Three days after the incident, she was requested to view a lineup and identified the defendant. At trial, which was held some five months after the incident, she was “absolutely positive” that the defendant was the one who robbed her.

Defendant’s sole point relates to the lineup procedures. He argues that because the defendant had a bad facial complexion the lineup was so unnecessarily suggestive that it tainted the identification, so that the court erred in overruling the motion to suppress identification testimony by the witnesses for the state. We find this point to be without merit.

First, we are convinced that under the totality of the circumstances the lineup was not impermissibly suggestive. State v. Tidwell, 500 S.W.2d 329, 331-332 (Mo.App.1973); State v. Ealey, 515 S.W.2d 778, 780 (Mo.App.1974); State v. Tomizoli, 519 S.W.2d 713, 715 (Mo.App.1975); see cases collected in State v. Rutledge, 524 S.W.2d 449, 456 (Mo.App.1975).

Second, we find from the evidence that there was an independent factual basis for the in-court identification. Mrs. Wright observed defendant in adequate light for several minutes, and described him with some specificity. At trial she was “absolutely positive” that he was the one who committed the offense. From the record, we are convinced that no error of law appears, and that there was no error in admitting the identification testimony. State v. Johnson, 536 S.W.2d 851, 854-855 (Mo.App. 1976); State v. Arnold, 528 S.W.2d 164, 166 (Mo.App.1975); State v. Rutledge, supra, 524 S.W.2d at 456.

We have read the entire transcript, the briefs of the parties and the authorities relied upon and we find no prejudicial error.

The judgment is affirmed.

All the Judges concur.

      . “[I]t is no longer open to argument in Missouri that, even though the photographic or line-up identifications are tainted or in some way suggestive, where there is an untainted, positive in-court identification made upon a factual basis independent from such photographic or line-up procedures, such in-court identification is proper. [Citations omitted.]” State v. Ealey, supra, 515 S.W.2d at 780.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Vito VITALE, Appellant.
    No. 37121.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 7, 1976.
    Donald L. Wolff, Deborah H. Weinstein, Clayton, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant was charged with child molestation. After two days of trial, and on January 9,1975, appellant indicated that he wished to withdraw his plea of not guilty and to enter a plea of guilty. The trial court interrogated appellant at length and concluded that “the plea is made voluntarily with understanding of the nature of the charge.” It accepted the plea and ordered a pre-sentence investigation, and that appellant appear for sentencing on February 28. At that time appellant apparently made an oral request to withdraw the plea of guilty, but the record before us contains no such request, and there is nothing to indicate the basis for it.

The record reflects that the following occurred on February 28, 1975.

“The Court: On your plea of guilty the Court sentences you to two years in the custody of the Missouri Department of Corrections, suspends execution of that sentence, places you on probation to the Missouri State Board of Probation and Parole for a period of five years with the regular conditions and special conditions which I have gone over with you and which you have agreed to comply with.”

On March 24, 1975, appellant filed a motion pursuant to Rule 27.25 to withdraw his plea of guilty. After a hearing the trial court overruled the motion and this appeal followed.

An application to withdraw a plea of guilty made pursuant to Rule 27.25 after the imposition of sentence is necessarily an attack on the validity of that sentence within the meaning of Rule 27.26, and the procedure to be followed is set forth in the latter rule. State v. Mountjoy, 420 S.W.2d 316, 323 (Mo.1967).

Rule 27.26 (a) provides that “This Rule is intended to provide the exclusive procedure which shall be. followed” in attacking the validity of a sentence, and in paragraph (b) it is stated that “The provisions of this Rule may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected.” Appellant is under suspended sentence and on probation, but “For purposes of 27.26 appellant is * * * ‘under sentence’, and the custody of his probation flows from the sentence imposed but not executed.” Nicholson v. State, 524 S.W.2d 106, 111 (Mo. banc 1975).

In paragraph (c) of Rule 27.26, it is provided that “A motion to vacate a sentence must be submitted on a form substantially in compliance with the form” appended to the Rule, and in paragraph (i) it is further provided that “The [trial] court shall make findings of fact and conclusions of law on all issues presented, * * *.” The motion in this case was not submitted on the form provided by the Rule, and there were no findings of fact and conclusions of law by the trial court. Paragraph (j) provides that “Appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” In the absence of such findings and conclusions it is not possible for this court to provide the appellate review contemplated.

The judgment is reversed with directions that the trial court determine whether there has been substantial compliance with paragraph (c) of Rule 27.26, and if not to dismiss the motion without prejudice. If substantial compliance is found, the trial court is directed to enter its findings of fact and conclusions of law in compliance with Rule 27.26(i).

It is so ordered.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.