text:
    STATE of Missouri, Respondent, v. Aaron Paul BRUCE, Appellant.
    No. 59633.
    Supreme Court of Missouri, En Banc.
    April 24, 1978.

      Dennis J. C. Owens, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Joel Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
    David C. McConnell, Kansas City, for am-ici.
   FINCH, Judge.

Defendant appeals from his misdemeanor conviction by jury of possession of 1,788 cartons of unstamped cigarettes for the purpose of sale in violation of § 149.051. Exclusive appellate jurisdiction is vested in this court pursuant to Article V, § 3 of the Missouri Constitution as the issues raised necessitate construction of the revenue laws. We reverse and remand.

The evidence introduced at trial revealed that defendant had been the subject of periodic surveillance by the Bureau of Special Investigation, Missouri Department of Revenue, and the Interstate Revenue Research Center for nearly two months prior to trial. From the testimony of the agents involved in this surveillance, it appeared that defendant had been engaged in the transportation of cigarettes from Asheville, North Carolina, to Kansas City, Missouri, on a highly predictable, recurrent basis. The established pattern was for the defendant to leave Kansas City in his light blue van during the latter part of the week and drive to Asheville. During the trip to Asheville, the curtains on the windows of the van were open and it was observed that the van was empty. Upon his arrival in Asheville, the defendant would proceed to the More-head Company, a cigarette wholesaler, and load the van with about 50 half-cases of cigarettes containing 30 cartons each. On at least two occasions, the actual transfer of the cigarettes from Morehead’s truck took place at a point remote from More-head’s warehouse. After loading, the curtains on the van were closed, secreting the contents from view. On the return trip, defendant had been observed to stop for the night at the Ramada Inn in Cape Girar-deau, Missouri. The next day, either Saturday or Sunday, defendant would return to Kansas City. Upon entering Kansas City, with the curtains of the van still closed, defendant would be followed by the agents, but on all but one occasion (the weekend prior to arrest) the agents lost contact with defendant for a brief period after which the van was observed, empty, outside defendant’s residence.

On the weekend prior to arrest, the same pattern occurred but this time the agents were able to maintain surveillance of the defendant in Kansas City and followed him to a residence where he and one Howe, suspected to be a cigarette smuggler from other investigations by the agents, were observed unloading the cigarettes from the van into the basement. Howe also had been observed to meet with defendant in a shopping center parking lot just prior to defendant’s departure for Asheville on two occasions.

As for the occasion of defendant’s arrest, the usual pattern was again observed. On Thursday, November 20, 1975, defendant left his apartment and drove to the Loma Vista shopping center in Kansas City where he met briefly with Howe. Defendant then left the shopping center and proceeded eastbound on 1-70 where surveillance was terminated. The curtains again were observed to be open and the van was empty. The next morning, defendant was seen at the offices of the Morehead Company in Ashe-ville. Agents there watched employees load a substantial quantity of half-cases of cigarettes onto a Morehead Company truck which then proceeded to a residence in Asheville. Shortly thereafter, defendant arrived and pulled his van alongside the truck. Defendant and the Morehead employees then transferred the cigarettes to the van. Photographs of this activity were introduced into evidence. After the transfer was complete, the van’s curtains were closed and defendant departed. He was followed to a point where he proceeded westbound on 1-40 and surveillance was again terminated.

Late that evening, defendant was observed crossing a bridge into Missouri and was followed to the Ramada Inn in Cape Girardeau. After a warrant was obtained, police searched the van and discovered 1,788 cartons of cigarettes which bore no Missouri tax stamp. Defendant was immediately taken into custody. The next morning, agents arrested Howe when he arrived at the address where he and defendant had previously been observed unloading cigarettes.

Many of defendant’s points on appeal may properly be characterized as an assertion that Chapter 149 is facially unconstitutional. It is contended that the tax imposed by the chapter, the stamps required as evidence of the payment of the tax and the penalties for possession of unstamped cigarettes are not limited to sales within the state. More specifically, it is asserted that by reason of this alleged flaw, the statute permits the imposition of criminal penalties for the possession of cigarettes which do not bear a Missouri tax stamp even as to persons who may be merely transporting cigarettes through the state for sale in some other state. This is said to constitute both an infringement of the constitutional right to travel and an undue burden on interstate commerce.

Defendant’s position that the statute is not limited to possession of cigarettes sold or intended for sale in Missouri is based primarily on the observation that no express language to that effect is contained in §§ 149.015.1 and 149.051.2, supra, note 2. While this observation about the lack of express language is correct, the conclusion drawn therefrom by defendant ignores other provisions which we believe manifest the true legislative intent. For example, express references to the occurrence of a sale within the state, are found in the concluding sentence of § 149.015.2, supra, note 2, and in the opening phrase of § 149.015.5.

Defendant also relies on the language of § 149.011(12) to support his contention as to applicability of the tax and penalties to possession of cigarettes not sold or intended for sale in Missouri. That section defines “wholesaler” to include one “that carries at all times at his or her principal place of business a representative stock of cigarettes for sale, and that comes into the possession of cigarettes for the purpose of selling them to retailers or to persons outside or within the state who might resell or retail the cigarettes to consumers.” (Emphasis supplied). This is a definitional section and not a taxing section. It defines or describes an occupation or business. Moreover, the use of the term “wholesaler” in § 149.051.2 is clearly contrary to defendant’s position because it is there used to exempt licensed wholesalers from the prohibition against possession of unstamped cigarettes intended for sale within the state.

Even the most general reading of the chapter reveals a statutory scheme which is obviously directed to collection of tax revenues from sales occurring within the state and providing a means by which the state can monitor such transactions. So interpreted, the premise for defendant’s constitutional challenge is refuted. Hence, we need not further consider the asserted constitutional questions.

Having concluded that § 149.051.2 must be read to include the words “in this state” after the word “sale,” we must now examine defendant’s instructional challenges as if the statute expressly so provided.

Verdict-directing Instruction No. 5 told the jury:

“If you find and believe from the evidence beyond a reasonable doubt:
“First, that on November 21, 1975, in the County of Cape Girardeau, State of Missouri, the defendant, Paul Bruce, had in his possession 1,788 cartons of cigarettes for the purpose of sale, and
“Second, that said cigarettes did not have stamps or meter units as required by law, and
“Third, that the defendant, Paul Bruce, was not a licensed wholesaler of cigarettes or a common carrier, then you will find the defendant guilty of possession of unstamped cigarettes for sale.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

The first paragraph of the instruction merely requires the jury to find that the cigarettes in defendant’s possession were intended for sale and not that they were intended for sale in Missouri. As the state contends, and as our recitation of the evidence at the outset of this opinion clearly indicates, there was indeed substantial evidence before the jury from which it could find that the cigarettes were intended for sale in Missouri. However, the instruction did not call upon the jury to find this as a fact beyond a reasonable doubt. Under the instruction, the jury was bound to return a verdict of guilty even if it determined that the cigarettes were intended for sale in some other state — conduct not proscribed under the statute as we have interpreted it. It is readily apparent that an intent to sell the unstamped cigarettes in this state is an essential element of the crime charged and failure to submit this element was prejudicial error. For that reason, the conviction must be reversed and the case remanded for retrial.

Having so determined, we have concluded that several additional points which were briefed and argued should be addressed briefly as they are likely to arise again on retrial.

Several additional assignments of error are directed to Instruction No. 5. Defendant challenges its failure to define the terms “possessed for the purpose,” “sale,” “wholesaler” and “common carrier.”. He does not explain how “possessed for the purpose” could be further defined, nor is any such need apparent. “Sale” is a term which is specifically defined in § 149.011(8). Although we agree with the state’s contention that the failure to define this term actually may have been beneficial to the defendant in this instance, the definition provided is considerably different than the word’s ordinary connotation and should be defined for the jury on retrial.

The state justifies the failure to define “wholesaler” or “common carrier” by asserting that a finding that defendant occupied either status is a special negative defense, similar to those referenced in the notes following MAI-CR 2.04. A special negative defense is one upon which the defendant does not carry the burden of proof. Submission is warranted where the defense is supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt.

The state asserts that the only evidence in this case as to whether defendant was a wholesaler or common carrier was introduced by the prosecution and tended to show that defendant occupied neither status. Furthermore, on appeal, the defendant denies he has ever claimed such status. On this basis, the state reasons that it need not have submitted these negative defenses and that defendant could not have been prejudiced by the failure to define the challenged terms.

We hold that the exceptions of licensed wholesalers and common carriers from the prohibition of § 149.051.2 are intended to be special negative defenses. As such, they need only be submitted where the evidence justifies an inference of the existence of the defense which is sufficient to raise a reasonable doubt of the defendant’s guilt. On retrial, applying the foregoing test, the trial court should determine whether the evidence as then presented requires the submission of such defenses to the jury. In that connection we should observe that it is irrelevant whether the evidence requiring submission is part of the state’s case or the defendant’s case or both.

The evidence of the whole case is to be considered. Furthermore, because the definitions of these terms in §§ 149.011(2) and (12) are somewhat different from the ordinary meanings which might be ascribed, we hold that where these terms are used in a submission under this statute they must be further defined. Since the evidence on retrial may differ from that at the prior trial, we do not undertake a discussion of whether the .trial court should have submitted such defenses.

Defendant also challenges the sufficiency of the evidence in several respects. The first claimed deficiency is the state’s failure to prove that the defendant ever sold even one cigarette. The crime charged under § 149.051.2 does not require a sale, only possession with the intent of sale within the state. In this regard defendant also makes reference to the provision of § 149.-051.3, wherein possession of unstamped cigarettes by persons not exempted is made prima facie evidence of possession with the intent of sale, but no further discussion is required in view of our determination that the evidence adduced at trial was sufficient to support a finding that the cigarettes in defendant’s possession were intended for sale in Missouri without benefit of that presumption.

Defendant further claims that his motion for acquittal should have been granted on the basis of the state’s failure to prove that the items seized were cigarettes as defined in § 149.011(1). The record before us on this appeal does not justify a holding that the state failed to make a submissible case on this point. The items had already been described as “cigarettes” before the point at which defendant’s counsel began objecting to such characterization and were so described by defendant’s counsel himself on several occasions during trial. The cigarettes were introduced without objection and passed to the jury. The complaint on appeal apparently is addressed to the lack of any expert testimony as to weight and makeup of the items, yet the objections at trial were insufficient and untimely to properly preserve this point for review. We note that the state attempted unsuccessfully to reopen its case when the nature of the objection became clear and the opportunity for such evidence will be available on retrial. The lack of any further definition of “cigarettes” is not challenged in this appeal and we make no ruling on that point.

We turn now to defendant’s claim that the search warrant should have been quashed and the evidence obtained by reason thereof suppressed for the reason that the affidavits supporting the search warrant contained no allegation that defendant was within the jurisdiction of the magistrate at the time the warrant issued. The affidavits in support of the warrant contain substantially all of the information summarized at the outset of this opinion. However, the information relating to the events prior to the evening of defendant’s arrest appear in one style of type and the final 2-3 lines which relate that the defendant was observed entering the state and on arrival at the Ramada Inn in Cape Girar-deau were obviously typed on a different typewriter. This variance in type was the subject of considerable testimony elicited by defendant’s counsel at the hearing on the motion to suppress the evidence. One of the affiants estimated on cross-examination that the time of arrest was 9:30 or 9:45 p. m. The affidavit states that the defendant was first observed at 10:25 p. m. and the warrant states that it issued at 10:42 p. m. Defendant reasons that this discrepancy indicates either that the affiant swore to an event which had not occurred or that the portion appearing in different type from the body was added sometime after the warrant issued. In either event, defendant concludes that the magistrate could not have had sufficient jurisdictional facts before him when the warrant issued and urges that the warrant must be held void.

This contention is not supported by the record. Although the affiants were initially confused about precise times, neither claimed that he could give more than an estimate without refreshing his recollection because more than eight months had elapsed since the arrest. When permitted to review notes taken at the time of arrest, both testified that the arrest took place after 11:00 p. m. and that the time of observation stated in the affidavits was correct. Both testified that the body of the affidavit had been prepared earlier in the day and the statements concerning observation of the defendant in Cape Girardeau that evening were added in the prosecutor’s office just before the affidavits were signed, thus explaining the different type. Even with the confusion over precise times, the testimony as to the sequence of events never varied: body prepared, last minute additions, affidavits signed, warrant issued, evidence seized, and defendant arrested. The magistrate who issued the warrant also testified to the same effect with no confusion about times. We hold that the motions to quash and suppress were properly overruled.

Defendant’s remaining assignments of error may not arise on retrial and need not be treated herein. The state now has notice of these objections and may modify its presentation as it deems necessary.

The judgment is reversed and the cause remanded for a new trial.

All concur.

      . All statutory references are to RSMo 1975 Supp. unless otherwise indicated.

      . Sec. 149.015 provides in part:
      “1. A tax shall be levied upon the sale of cigarettes at an amount equal to four and one-half mills per cigarette.
      “2. The tax shall be evidenced by stamps which shall be furnished by and purchased from the director or by an impression of the tax by the use of a metering machine when authorized by the director as provided in this chapter, and the stamps or impression shall be securely affixed to one end of each package in which cigarettes are contained. All cigarettes must be stamped before being sold in this state.”
      Sec. 149.051.2 provides:
      “No person, other than licensed wholesalers or other persons as specifically provided for in this chapter, shall possess for the purpose of sale any cigarettes to which the stamps or meter units required by this chapter are not affixed.”
      Sec. 149.081 provides:
      “A person who violates any provision of this chapter for which no criminal penalty is otherwise provided shall be guilty of a misdemeanor and, upon conviction, shall be punished by confinement in the county jail for a term not exceeding one year, or by a fine of not more than five hundred dollars, or by both such fíne and confinement.”

      . “In making sales of cigarettes in this state . . . .” (Emphasis supplied).

      . Sec. 149.011(8) provides:
      “ ‘Sale’, in this instance is defined to be and declared to include sales, barters, exchanges and every other manner, method and form of transferring the ownership of personal property from one person to another, and is also declared to' be the possession of cigarettes for consumption, irrespective of how acquired; possession of cigarettes by any person other than a manufacturer, wholesaler or retailer shall be prima facie evidence of possession for consumption.”

      . Sec. 149.011(2) provides:
      “ ‘Common carrier’, any person, association, company, or corporation engaged in the business of operating, for public use, an agency for the transportation of persons or property within the state.”

      . Sec. 149.011(12) provides:
      “ ‘Wholesaler’, any person, firm or corporation organized and existing, or doing business, primarily to sell cigarettes to, and render service to retailers in the territory the person, firm or corporation chooses to serve; that purchases cigarettes directly from the manufacturer; that carries at all times at his or its principal place of business a representative stock of cigarettes for sale, and that comes into the possession of cigarettes for the purpose of selling them to retailers or to persons outside or within the state who might resell or retail the cigarettes to consumers. This shall include any manufacturer, jobber, broker, agent or other person, whether or not enumerated in this chapter, who so sells or so distributes cigarettes.”

      . We note, however, that legislative clarification of this provision is desirable in light of our construction of §§ 149.015.1 and 149.051.2, supra.

      . Sec. 149.011(1) provides:
      “ ‘Cigarette’, an item manufactured of tobacco or any substitute therefor, wrapped in paper or any substitute therefor, weighing not to exceed three pounds per one thousand cigarettes and which is commonly classified, labeled or advertised as a cigarette.”


source: Caselaw Access Project

author: BARDGETT, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. CITY OF PERRYVILLE et al., Relators, v. Billy PICKLE et al., Purported Trustees of the purported Village of Shakertowne, and purported Village of Shakertowne, Missouri, Respondents.
    No. 60283.
    Supreme Court of Missouri, En Banc.
    April 24, 1978.
    David Beeson, Fred J. Gerhard, Jackson, for relators.
    Kim Moore, Perryville, for respondents.
   BARDGETT, Judge.

This is an original proceeding on rela-tors’ information in the nature of quo war-ranto by which relators seek an adjudication by this court that the incorporation of Village of Shakertowne by order of the Circuit Court of Perry County, Missouri, was a nullity because the county court lacked jurisdiction to enter the order.

The relators are the neighboring City of Perryville, a fourth-class city, a resident of Shakertowne who signed the original petition for incorporation, residents and property owners of the originally incorporated Village of Shakertowne, and residents of that part of the subdivision of Shakertowne which was not included in the original incorporation but was subsequently annexed by the Village of Shakertowne. Respondents are the trustees of the Village of Shakertowne.

Relators presented the matter to the attorney general of Missouri, who, after reviewing it, has approved the use of the state’s name in this cause in order to resolve certain questions as to the legality of the incorporation of the Village of Shaker-towne and the claims of right, franchise and privileges by respondents-trustees, all of which he believes have significant public policy implications of statewide concern.

As will be seen infra, the principal problem involved in the incorporation of the Village of Shakertowne arose because of sec. 72.130, RSMo Supp.1975, which prohibits the incorporation of any city, town, or village within two miles of any city of the first, second, third, or fourth class or any constitutional charter city within a certain class of county without certain preliminary steps being taken. The chronology of events is important to an understanding of the case.

The City of Perryville is a city of the fourth class and is the county seat of Perry County, a county of the third class.

In 1972 the subdivision of Shakertowne was subdivided and platted. It lies to the south of Perryville. As of December 1976, the subdivision included an area of 43 acres. On December 7, 1976, the subdivision consisted of 90 vacant home-building lots, 55 residences, and a number of streets.

In June and August 1976, the residents of Shakertowne subdivision met to consider incorporation of the area and thereafter Michael Sutterer, the subdivision developer, and Francis Toohey, his attorney, approached the city council of Perryville to informally obtain that city’s views on the proposed incorporation. The city council did not issue a formal or informal statement at that time but did request an attorney general’s opinion on procedures under sec. 72.130. As of that time, 80% of Shaker-towne subdivision was within two miles of the closest Perryville city limits. The southernmost 20% or so of the subdivision was over two miles from the then city limits of Perryville. The legal maneuvering by Perryville to prevent the incorporation and by certain residents of Shakertowne subdivision to incorporate then began.

On November 18, 1976, the Perryville Board of Aldermen, pursuant to sec. 71.012, RSMo Supp.1976, adopted a resolution to annex property owned by the Perry County School District No. 32 to Perryville. This property was on the south edge of Perry-ville, and if and when annexed it would bring the entire Shakertowne subdivision within two miles of Perryville and thereby make the whole subdivision subject to sec. 72.130. The annexation resolution was appropriately published and a public hearing was held on December 2, 1976.

On December 7, 1976, pursuant to a petition filed in the Perry County Court by the incorporators of the Village of Shaker-towne, and after a hearing, the county court issued its order incorporating the Village of Shakertowne. The area incorporated was that portion of Shakertowne subdivision which lay outside the two-mile radius of Perryville as it existed at that time (pri- or to effective date of school property annexation) and consisted of 11 residences and a number of building lots. It included 21 property owners and a population of 34 residents. The northern boundary line of the new village cut through two or three lots. The reason for not including the entire Shakertowne subdivision in the original incorporation was because the remainder of the subdivision was within two miles of Perryville and therefore subject to the provisions of sec. 72.130.

On December 9,1976, the Board of Aider-men of Perryville passed an ordinance which finally annexed the school district property to the south side of Perryville as mentioned supra.

On December 30, 1976, Perryville filed a petition with the County Court of Perry County requesting a hearing on the incorporation of the Village of Shakertowne. On January 11, 1977, the county court heard arguments of the Perryville city administrator, the city attorney, and a member of the Southeast Missouri Regional Planning Commission against the incorporation of Village of Shakertowne, and thereafter ordered: “After due consideration the Court ordered that the Incorporation of the Village of Shakertowne stand as is.” On January 18, 1977, Perryville appealed to the Circuit Court of Perry County the county court’s order of December 7, 1976, incorporating the Village of Shakertowne. On April 20, 1977, the circuit court dismissed the city and one Don Barks as parties to the appeal for lack of standing and then dismissed the petition for review as untimely filed. No appeal was taken from the circuit court’s dismissal orders.

Meanwhile, on March 28, 1977, the Village filed a petition to extend its boundaries in Perry County Court pursuant to see. 80.020, RSMo 1969. The extension of boundaries extended the Village north toward Perryville and took in the area of the subdivision of Shakertowne which had not been included in the original incorporation because it was within the two-mile radius of Perryville. On April 2, 5, and 12, 1977, notice of hearing on the proposed extension of boundaries of Shakertowne was published, and on April 18, 1977, the county court held a public hearing on the matter. The extension of boundaries was approved on May 3, 1977, by the county court. By this extension, the Village of Shakertowne was enlarged to include the entire subdivision of Shakertowne which consisted of 156 people, 53 residences, two apartment houses, and one store.

The law respecting quo warranto and that writ’s application in efforts to oust officials from town or village offices on the ground that the original order of incorporation was void has been set forth a number of times and therefore does not need to be repeated here. See State on inf. Eagleton v. Champ, 393 S.W.2d 516 (Mo. banc 1965).

Relators’ first point is: “The alleged incorporation of the Village of Shakertowne by the Perry County Court was void on its face and a nullity in that said incorporation did not comply with section 80.020 RSMo 1969, because the area incorporated did not constitute a ‘village’ or ‘town’ within the meaning of the statute, for the reason that the area incorporated did not constitute a ‘village’ the County Court was without jurisdiction to incorporate the same. On this basis the trustees of the village should be ousted from office and the incorporation declared a nullity.”

There is little question but what the entire Shakertowne subdivision comprised an area of sufficient population density and compactness so as to constitute a “village”, but that is not what was incorporated.

There is also little question but what the sliver of Shakertowne subdivision which was outside the two-mile limit, and which was the subject of the original petition for incorporation, and was incorporated by the county court order, did not constitute a “village”. The definitions of “town” or “village” are rather illusive and imprecise. See State on inf. v. Champ, supra, at 524. There are a number of towns and villages, incorporated and unincorporated, in Missouri with populations of less than 50 people. See Official Manual of Missouri, 1977-1978, pp. 1231-1240, and the Official Highway Map of Missouri 1978. Therefore, the mere fact that the part of Shakertowne subdivision which was originally incorporated had only 34 residents is not controlling. In the context of this case, however, the small sliver that was shaved off the remaining subdivision and incorporated simply does not meet any reasonable definitions of “town” or “village”. See State v. Perkins, 360 S.W.2d 555 (Tex.Civ.App.1962), (reversed on other grounds, 367 S.W.2d 140 (Tex.1963)), where it was held that the Texas statute would not authorize the creation of a municipal corporation out of a portion of territory which comprised an unincorporated town, but rather the whole must be included. In Perkins the court said the boundaries were drawn by Mr. Perkins to substantially exclude a portion of the natural town so as to prohibit the residents thereof from voting on the incorporation. The court also held at 558: “It [the evidence] shows that there were no natural barriers separating the chosen and rejected portions and that no fact exists which constituted a legal justification for such arbitrary division of the existing inhabited community.”

While in our case it is clear that the intent and purpose of those undertaking to incorporate Shakertowne was to incorporate the entire Shakertowne subdivision and not to exclude any portion thereof, nevertheless, this could not be legally done at the time of the initial incorporation in view of the fact that most of Shakertowne was within two miles of Perryville. Thus, it was a legal barrier which caused the boundary to be drawn at the two-mile mark, to wit, sec. 72.130, and not a natural barrier nor some other fact which would constitute a legal justification for so doing.

The enactment of sec. 72.130 by our general assembly was obviously for the purpose of at least slowing down the rate of incorporations of small municipalities lying very close to existing cities of designated classes. The statute does not permanently prohibit such incorporations but does require certain steps to be taken with reference to the existing city in order that, if it is municipal services and other truly municipal benefits that are desired, they can be obtained through the existing city. And, if the existing city will not annex the area, then after only one year, and upon certain conditions being met, the incorporation may proceed. That this may be frustrating to developers and delay or forestall their efforts to incorporate a subdivision was probably intended. The fact that individuals living in subdivisions (villages) in unincorporated areas may also be somev/hat frustrated or delayed in satisfying their desires to “have a town of their own” must be tolerated in view of the public policy of the state as set forth by the legislature in sec. 72.130 which has the overall public purpose of encouraging an orderly municipal growth and expansion by discouraging a patchwork pattern of small municipalities, few of which can or will provide municipal services to the residents.

It is perfectly plain in this case that the sliver of territory cut from the Shaker-towne subdivision was not a “town” or “village” and it is obvious that the incorporation of that sliver took place in order to avoid or evade the procedures required by sec. 72.130. The application of laches to the relators would not be appropriate here because of the brief existence of Shakertowne and the lack of any significant municipal action during its existence.

The County Court of Perry County did not have the jurisdiction to order the incorporation of the small sliver of territory which was the subject of the original incorporation because (1) it did not constitute a “town” or “village” by any definition, and (2) as such it (the incorporation) constituted a blatant subterfuge to avoid and evade the provisions of sec. 72.130.

It is ordered that the order of the County Court of Perry County of the incorporation of the Village of Shakertowne, Missouri, is hereby declared void and is set aside. The respondents-trustees are ousted from the position of trustees and from exercising any authority pursuant to the order of the Perry County Court incorporating the Village of Shakertowne or the order extending the boundaries of Shakertowne or pursuant to the purported municipal status of the Village of Shakertowne or any other order or appointment made pursuant to the purported incorporation of the Village of Shaker-towne.

All of the Judges concur.

      . The writer does not agree that this court should have entertained this as an original proceeding but believes the cause should have been filed in the circuit court originally, but discretion having been exercised to entertain the cause, I will not pursue the matter any further.

      . “No city, town, village or other area shall be organized within any county of the first class not having a charter form of government, or within any county of the second, third or fourth class within this state under and by virtue of any law thereof, adjacent to or within two miles of the limits of any city of the first, second, third or fourth class or any constitutional charter city, unless the city, town, village or other area be in a different county from the city, except that a city, town, village or other area may be incorporated within the two mile area if a petition signed by a number of qualified electors equal to fifteen percent of the votes cast in the last gubernatorial election in the area proposed to be incorporated is presented to the existing city requesting that the boundaries of the existing city be extended to include the area proposed to be incorporated and if action taken thereon by the existing city is unfavorable to the petition, or if no action is taken by the existing city on the petition, then the city, town, village or other area may be incorporated after the expiration of one year from the date of the petition and upon a favorable majority vote at the required election.”


author: WILLIAM M. CORRIGAN, Special Judge.

text:
    Luvenia FRANKLIN et al., Plaintiffs-Appellants, v. Steven ROBARDS, Defendant-Respondent.
    No. 37796.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Feb. 14, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Whitfield, Montgomery & Walton, Harold L. Whitfield, St. Louis, for plaintiffs-appellants.

      Godfrey, Vandover & Burns, James E. Godfrey, St. Louis, for defendant-respondent.
   WILLIAM M. CORRIGAN, Special Judge.

This is an appeal from the judgment of the Circuit Court of St. Louis rendered upon a jury verdict in favor of the defendant and against both plaintiffs. This case arose out of a collision between defendant’s automobile and pedestrian-plaintiff Luve-nia Franklin. No further recitation of the facts is necessary since appellants’ brief is so grossly defective their appeal must be dismissed.

Appellants’ three paragraph statement of facts is nothing more than a halfhearted restatement of their petition totally lacking in any factual recitation. No effort was made by appellants to present a fair and concise statement of facts in accordance with Rule 84.04(c). Violation of said Rule in this case is so glaring that dismissal on this basis alone would be warranted. Donnel v. Vigus Quarries, Inc., 489 S.W.2d 223, 225 (Mo.App.1972) and Martin v. Moody, 558 S.W.2d 362 (Mo.App.1977).

Appellants’ “Points Relied On” are equally violative of Rule 84.04(d) because they fail to illustrate any reasons why the court’s rulings or actions were erroneous. For example, Point I claims that “The Missouri Humanitarian Doctrine applied where Luvenia Franklin was struck by defendant’s automobile while she was crossing Hampton Avenue from East to West. Thus, trial court erred in not granting plaintiff a new trial.” In conformity with plaintiffs’ request, the trial -court gave Instructions Numbers 5 and 6 submitting defendant’s humanitarian negligence. The jury, by its verdict, rejected plaintiffs’ theory. Point I neither isolates nor formulates any precise issues for this court to review but rather is merely a bald assertion of error all of which is in noncompliance with Rule 84.04(d). State v. Redd, 550 S.W.2d 604, 607[4] (Mo.App.1977); State v. Gomillia, 529 S.W.2d 892, 895[3] (Mo.App.1975); and State v. Starkey, 536 S.W.2d 858, 865[7] (Mo.App.1976). The other two points relied upon by appellants are similarly defective and merit no further discussion.

In addition thereto, in Point II appellants fail to supply any citations of authority supportive of their position, and in Point III, appellants charge the jury with considering matters outside the evidentiary record but fail to furnish this Court with the affidavits referred to in their Motion For New Trial which allegedly support this contention. Such obvious omissions further render this appeal defective on its face. State v. Schulten, 529 S.W.2d 432, 434 (Mo.App.1975).

In summary, this Court has often said that an appellant’s brief need not be technically perfect but it must absolutely identify with clarity the errors of the trial court. Further, the Court must be notified of the principle of law appellant considers controlling, and how the trial court has failed to follow that law or has misconstrued the facts. State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 475[3] (Mo.App.1972).

It is not the duty of this Court to search through the argument and the record to find potential errors. Nor is it the responsibility of this Court to act as appellants’ advocate.

For these reasons appellants’ appeal is dismissed for failure to comply with Rule 84.04(c) and (d).

CLEMENS, P. J., DOWD and SMITH, JJ., and JAMES RUDDY, Special Judge, concur.


author: McMILLIAN, Judge.

text:
    Elizabeth D. BROLINSON, Appellant, v. Per Y. BROLINSON, Jan Thomas Brolinson, and Brolinson & Associates, Respondents.
    No. 39495.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 14, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.

      Mcllroy & Millan, Bowling Green, for appellant.
    James G. Rittenbaum, Louisiana, for respondents.
   McMILLIAN, Judge.

Appellant Elizabeth D. Brolinson appeals from a judgment of the Circuit Court of Pike County, Missouri, dismissing her petition to set aside allegedly fraudulent conveyances made by her former husband, respondent Dr. Per Y. Brolinson. Appellant’s petition alleged that the transfers made by respondent to his co-respondent, his present wife and Brolinson & Associates, Inc., a corporation, were fraudulent and void, § 428.020 RSMo 1969. For reversal appellant urges that the trial court erred by (1) failing to make findings of fact and conclusions of law, pursuant to Rule 73.01(l)(b), V.A.M.R. and (2) dismissing appellant’s petition for failure to state a claim.

After dissolving the marriage between appellant and respondent, the circuit court of Pike County, as a part of its decree, included a provision for child support. This suspect part of the decree ordered respondent to pay appellant $325.00 per month per child, subject to certain provisions as “set forth in the Stipulation and Agreement relative to these payments as the children are in college and become emancipated.” Appellant’s petition, affidavit and the execution issued upon said affidavit each made reference to the $975.00 per month child support award (there are three children) “which was later reduced down under the Agreement entered into between the parties to the sum of $800.00 per month.” In her petition, appellant alleged respondent owed $11,525.00 as of April 1, 1977.

We find no merit in appellant’s first claim of error. Rule 73.01(l)(b), V.A.M.R., requires a party to request findings of fact and conclusions of law before final submission of the case. In McIntosh v. White, 447 S.W.2d 75, 77 (Mo.App.1969), the court declared that the submission is final when the evidence and arguments are finished and the court takes the case, whether for immediate decision or under advisement for a future decision. Here appellant made her request after the court sustained respondent’s motions to dismiss. Consequently, appellant’s request was untimely and the trial court ruled properly.

In view of our final decision, it is unnecessary to discuss but one of the sundry allegations in appellant’s petition; that is, the one pertaining to her monetary judgment for child support ordered by the circuit court. The decree entered by the circuit court provided that, “ . . . the Defendant (respondent) is ordered to pay to the Plaintiff (appellant) the sum of Three Hundred Twenty-five Dollars ($325.00) per month per child as and for child support, subject to certain provisions as set forth in the Stipulation and Agreement relative to these payments as the children are in college and become emancipated.” We note also that although the dissolution decree made reference to a Stipulation and Agreement, it made no mention that the property settlement agreement was to be incorporated therein. In fact, the Stipulation and Agreement was not incorporated into the decree.

In Rodden v. Rodden, 527 S.W.2d 41, 43 (Mo.App.1975), this court held language in a judgment ordering a party to pay “all extraordinary medical expenses” to be unenforceable. We cited with approval from Loomstein v. Mercantile Trust Nat. Ass’n, 507 S.W.2d 669, 670 (Mo.App.1974), which held that an order requiring the defendant to pay “all sums necessary for his daughter’s college and graduate” expenses was unenforceable. The rationale behind these cases is that a judgment must be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. It must be in such form that the clerk may issue an execution upon which an officer is able to execute, Bishop v. Bishop, 151 S.W.2d 553, 557 (Mo.App.1941), without requiring external proof and another hearing. If a judgment does not satisfy this requirement of certainty, it is null, void and unenforceable, e. g., Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977).

In this case the judgment awarding the $325.00 per month per child for child support was subject to an unknown Stipulation and Agreement relative to some undetermined college expenses and future emancipation. The specific amount due under this judgment is uncertain and requires external proof and another hearing. Therefore, the judgment is void and unenforceable and appellant is not a valid judgment creditor within § 428.020 RSMo 1969. Compare Biondo v. Biondo, 179 S.W.2d 734 (Mo.1944) (wife with judgment for alimony, child support and attorney’s fees held a creditor within statute against fraudulent conveyances). In general, only judgment creditors or those who have a legal or equitable lien on the property or who have commenced attachment suits against the property can maintain an action to set aside a fraudulent conveyance, e. g., Jones v. Davis, 306 S.W.2d 479, 480 (Mo.1957). Thus, the trial court was correct in its determination that appellant did not state a claim under § 428.020, RSMo 1969.

We cannot, however, agree with the trial court’s dismissal of appellant’s petition and, for the reasons discussed below, reverse and remand the cause to the trial court with directions to allow appellant leave to amend her petition, should she be so advised. “Under modern pleading principles, a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his (or her) claim which would entitle it to relief.” Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630 (Mo.App.1975); Rule 55.05, Y.A.M.R. Furthermore, on appeal, “[i]n our review of a dismissal of a petition for failure to state a claim, we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged, and if the pleader’s allegations invoke principles of substantive law which may entitle it to relief, the petition is not to be dismissed.” Watson v. Franklin Finance, 540 S.W.2d 186, 188 (Mo.App.1976). If the facts pleaded and the reasonable inferences to be drawn therefrom looked at most favorably from the plaintiff’s perspective show any ground upon which relief may be granted, the plaintiff has the right to proceed, e. g., State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 145 (Mo.App.1974).

We believe that appellant’s petition does allege facts and circumstances which invoke substantive principles of law which if proved may entitle her to relief. Appellant’s petition alleges that respondent was married to appellant and is the father of their three children, owes appellant money for child support, the specific amount of which obligation is uncertain for the reasons discussed above, and that respondent has made fraudulent conveyances to avoid paying child support, see e. g., Johnson v. Fotie, 308 S.W.2d 662, 666 (Mo.1958).

Accordingly, the court’s action in dismissing plaintiff’s petition is affirmed but the cause is remanded to permit plaintiff to amend if she so desires.

CLEMENS, P. J., and SMITH, J., concur.


text:
    Columbus Willie BARBER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39118.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.

      David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Appellant appeals from a decision of the trial court in denying his motion to vacate judgment filed pursuant to Supreme Court Rule 27.26, V.A.M.R. Appellant was originally charged with three counts: burglary in the first degree with intent to commit rape, robbery in the first degree and forcible rape. On May 28,1975, appellant pleaded guilty to the charges, but on inquiry from Judge Satz was permitted to withdraw his guilty plea. Judge Satz was disqualified and the case was reassigned.

On May 29,1975, appellant pleaded guilty again to the above charges. At the testimonial hearing prior to the acceptance of appellant’s plea, the court discussed at length the voluntariness of appellant’s plea and the recommended sentences. After-wards, the court sentenced appellant to twenty (20) years imprisonment on Count I, twenty-five (25) years on Count II and twenty-five (25) years on Count III, said sentences to run concurrently.

Appellant’s second amended Rule 27.26 motion filed on February 25, 1976, alleges: (1) that his guilty pleas were unconstitutional under the Fifth and Fourteenth Amendments as they were involuntary; (2) his alternative of trial by jury was deterred by fear of consecutive sentences then mandated by § 546.480, RSMo 1969, which was subsequently declared unconstitutional; and (3) appellant’s final contention was that he was denied effective assistance of counsel in that — (a) counsel failed to file a motion for a psychiatric examination, thereby denying appellant an affirmative defense, (b) counsel failed to investigate witnesses, (c) counsel failed to obtain a continuance, (d) counsel failed to inform appellant of the opportunity for a motion to sever.

On February 11, 1976, an evidentiary hearing was conducted. On March 16,1977, the trial court issued its findings of fact and conclusions of law overruling appellant’s motion.

Appellant’s first contention is that his guilty plea was not made freely and voluntarily and should be set aside because his pleas were unlawfully induced by coercion, misapprehension, fear and undue persuasion. We disagree. The transcript of the proceeding taken at the time the plea was accepted demonstrates a substantial compliance with Rule 25.04, V.A.M.R. This rule requires that the court shall not accept the plea without first determining that the plea was made voluntarily and with the understanding of the nature of the charge. Appellant relies on the court’s conclusion in State v. Williams, 361 S.W.2d 772 (Mo.1962), that a plea should never be received unless freely and voluntarily made. The plea in Williams, however, was accepted by the court without questioning the defendant. The plea was clearly equivocal in nature as the defendant’s attorney stated he was not convinced of defendant’s guilt. The defendant’s attorney stated that he hated to make the plea because after a thorough investigation counsel did not know where defendant was or what he did, 361 S.W.2d at 773. The facts of our case are clearly distinguishable. The court asked appellant if he knew he was giving up his right to trial by jury by pleading guilty and the court informed him that it was not bound by the state’s recommended sentences. The court also asked the appellant whether he was satisfied with his counsel’s advice and preparation, to which he replied that he was.

Appellant contends that he was pressured by his attorney into believing that an extremely lengthy sentence would be imposed in the event the appellant chose to proceed with a jury trial and that a guaranteed lesser sentence would be imposed if appellant elected to enter a plea of guilty. Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974) and Stewart v. State, 542 S.W.2d 544, 545 (Mo.App.1976) state that it is the duty of the defendant’s attorney to advise him as to the range of punishment and if he feels it advisable to give his judgment as to the extent of punishment the jury might fix in the event of conviction. We therefore conclude that appellant’s contention in this regard has no merit.

Appellant’s second allegation is that the pleas were not freely and voluntarily made because at the time of the pleas of guilty the fear of receiving mandatory consecutive sentences, iri the event that the right to a jury trial was exercised, unlawfully coerced appellant to enter a plea of guilty in order to receive a concurrent sentence. At the time of his pleas, § 546.480, RSMo 1969 created the alternative of pleading guilty to a concurrent sentence or facing the risk of exercising a right to trial by jury with the inherent right of receiving three consecutive sentences. This contention is quickly negated by Wright v. State, 549 S.W.2d 554, 558 (Mo.App.1977) where the court declared that, “ . . .if the client’s decision to plead guilty was influenced by the possibility of the death penalty, such fear did not render his guilty pleas involuntary. Taylor v. State, 539 S.W.2d 589 (Mo.App.1976); Beeman v. State, 502 S.W.2d 254 (Mo.1973). ...” The court in Brady v. United States, 379 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) reasoned similarly and found that a statute which caused the defendant’s guilty plea did not necessarily prove that the plea was coerced and invalid as an involuntary act. So, here, we find no basis for concluding that appellant’s plea was coerced and involuntary.

The defendant’s final contention is that he was denied effective assistance of counsel. The first proposition to support this claim is that counsel failed to file a motion for appointment of a psychiatrist under chapter 552 RSMo 1969, thereby denying appellant of an affirmative defense. According to Campbell v. State, 532 S.W.2d 844, 848 (Mo.App.1975), “ . . . [a] mental examination is not required unless there is evidence or there are circumstances raising a reasonable doubt about the defendant’s mental competence. . . ” The facts at hand give no indication that appellant was unaware of the proceedings or did not know what he was doing, but point to the contrary conclusion. The record shows that appellant was aware of the proceedings, knew what he was doing when he committed the acts and was fully aware of the range of punishment. Appellant would therefore be competent to stand trial under the test set forth by the court in Brown v. State, 485 S.W.2d 424, 429 (Mo.1972). According to Brown, the test is, “ . ‘whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ ...”

In Brown, the court stated that, “ . . . ‘the claim of incompetent counsel cannot be sustained absent any showing that he had any honest basis for asserting movant was incompetent to stand trial.’ ...” 485 S.W.2d at 428. Appellant’s attorney had no such basis. There is no evidence to show appellant was not responsible for his acts or that he was incapable of standing trial. The evidence supports the finding that counsel could have come to the conclusion that his client was competent and that no basis existed for filing a motion for a psychiatric examination.

The next proposition asserted to support appellant’s claim of ineffective assistance of counsel is that counsel failed to use investigators to interview adverse witnesses and that counsel did not depose any potential witnesses. The difficulty with this proposition is that appellant did not allege facts, but only conclusions, which did not show that he was prejudiced by his counsel’s acts.

The court in Fritz v. State, 524 S.W.2d 197, 199 (Mo.App.1975) expressed the view that appellant must show prejudice.

“ . . .A movant who contends inadequate investigation by counsel has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice . . . although the investigative techniques used by trial counsel here did not involve the direct confrontation of the State’s witnesses, there was no showing that appellant was deprived of evidence otherwise available by that method nor that the defense was in any manner prejudiced.”

Nothing in our facts shows that any investigation would have been helpful. The court asked appellant if he had any witnesses which he would like to call into court who he thought could help his case. Appellant responded negatively.

Failure to investigate is a ground for reversal only if it prevented a voluntary and intelligent choice. Parks v. State, 518 S.W.2d 181, 184 (Mo.App.1974). This did not happen. Counsel discussed the defenses with the appellant, read the police report, and informed appellant of the law regarding punishment. Appellant had the necessary information to make an intelligent choice. Appellant’s claim of ineffective assistance of counsel is clearly refuted by the record. We can find no basis for concluding that appellant was denied effective assistance of counsel. Appellant did not meet the burden of proving that acts of counsel resulted in a deprivation of the right to a fair trial.

Appellant’s third argument in support of his claim for ineffective assistance of counsel relates to the failure of counsel to seek a continuance in order for his client’s mother to retain a private attorney. Counsel testified that he had no record of phone messages from client’s mother regarding retaining a new attorney. The appellant did not request a continuance. We find no evidence to contradict counsel’s testimony. The trial court was not clearly erroneous in its ruling and therefore the findings pertaining to this matter must be upheld. Gibson v. State, 548 S.W.2d 596, 598 (Mo.App.1977).

Appellant’s last allegation regarding ineffective counsel is that counsel failed to file a motion to sever or to inform appellant of such an alternative. Counsel, however, testified that he told his client of all possibilities and consequences. No specific questions were asked of counsel regarding whether he informed appellant of this motion, and therefore the trial court’s finding must be upheld. Appellant failed to meet his burden of proof as required by 27.26(f), V.A.M.R. Because none of the above allegations have merit, appellant’s motion to vacate sentences and judgments pursuant to Rule 27.26 is denied.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    John FINGER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39403.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    David V. Uthoff, St. Louis, for movant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.
   McMILLIAN, Judge.

Movant John Arthur Finger appeals from an order of the circuit court of the City of St. Louis denying, after an evidentiary hearing, his Rule 27.26 motion to vacate judgment and sentence. Movant pled guilty and was convicted of burglary in the second degree, carrying a concealed weapon and failing to appear on a bail bond. For reversal movant argues that the trial court erred in overruling his Rule 27.26 motion because (1) his guilty plea to the charge of failure to appear on a bail bond was equivocal and was accepted by the trial court without a sufficient factual basis and (2) his guilty plea to the charge of burglary in the second degree was not voluntary because he was denied effective assistance of counsel. For the reasons discussed below, we affirm the judgment of the trial court.

Movant first argues that during the course of the guilty plea proceedings on the charge of failure to appear on a bail bond, he repeatedly stated that he had no knowledge that he was required to appear in court on December 23, 1975. Because he specifically denied an essential element of the charged crime, movant contends that the trial court was under a duty not to accept the guilty plea. Movant’s reliance, however, upon Morris v. State, 482 S.W.2d 459 (Mo.1972) and State v. Williams, 361 S.W.2d 772 (Mo. banc 1962), is misplaced. While we agree that a guilty plea, like a confession out of court, should be received with caution and should never be received unless freely and voluntarily made, in the instant case the record of the acceptance of the guilty plea affirmatively shows that the requisite caution was exercised by the trial court. Not only was there compliance with Rule 25.04, V.A.M.R., but after movant gave an equivocal answer, the trial court stated, “We had better try this case. He says he is not guilty of a crime.” Movant immediately responded that “I am not saying that.” The trial court then called mov-ant back and continued the proceedings. Further testimony showed that movant had gone to California, without the approval of the trial court, and remained there from December 13, 1975, until May 26, 1976. Movant also stated in response to a question asked by the trial court that it was possible that he would never have returned to Missouri if the authorities had not picked him up and returned him. Our review of the record of the guilty plea proceedings and the transcript on appeal does not convince us that the trial court’s ruling on this allegation of error was clearly erroneous. Rule 27.26(j), V.A.M.R.

Before considering movant’s second allegation of ineffective assistance of counsel, we make three observations. First, where a guilty plea has been entered, the claim of ineffective assistance of counsel bears only on the issue of the voluntariness of the plea, e. g., Parks v. State, 518 S.W.2d 181 (Mo.1974). Second, at the time movant entered his plea of guilty, he admitted that he had broken and entered the drugstore with the intention of stealing; he consulted with his attorney concerning his guilty plea and was fully satisfied with his attorney’s advice; and he acknowledged that he understood the consequences of his guilty plea, his right to a jury trial and the extent of the penalty involved. Third, a movant to obtain postconviction relief for alleged ineffective assistance of counsel bears a substantial burden of proof. Rule 27.26(f), V.A.M.R.

Movant bases his allegation of ineffective assistance of counsel on trial counsel’s alleged failure to contact a witness who, according to movant, would have been able to testify in his behalf. So the question becomes did trial counsel’s failure to contact this defense witness amount to an abdication of his legal duty such that the clarity of the alternatives open to movant became so clouded as to compel the relief he seeks. See Parks v. State, supra; Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). In making the aforesaid allegation, movant must show that counsel’s alleged failure to contact the witness had an effect upon his decision to plead guilty. Hall v. State, supra. In this case movant himself was somewhat doubtful as to whether the failure to contact the witness affected his decision because, in answering that question, he merely stated, “I think so.” Movant’s explanation was that he and the witness had been arrested at the same time and the witness was later released. We do not know why the witness was released nor what the witness’s expected testimony would have been. Granted, in movant’s brief he claims the witness’s testimony would have impeached the testimony of the police. But, with or without the witness’s testimony, movant, after hearing the nature of the state’s expected evidence, could have made a reasoned choice to voluntarily and freely plead guilty. Moreover, the position now put forth by movant is refuted by the record. The record of the proceedings prior to the trial court’s acceptance of movant’s guilty plea unequivocally shows that movant stated that he had not only consulted with trial counsel but also was fully satisfied with his advice. Consequently, we find nothing to condemn the trial court for in any respect now urged by mov-ant.

Accordingly, judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: GUNN, Presiding Judge.

text:
    ST. LOUIS COUNTY NATIONAL BANK, Plaintiff-Respondent, v. MARYLAND CASUALTY COMPANY, Defendant-Appellant.
    No. 39716.
    Missouri Court of Appeals, St. Louis District, Division 3.
    Feb. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.

      R. E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendant-appellant.
    Lashly, Caruthers, Thies, Rava & Hamel, Edward L. Filippine, Thomas Cummings, Richard D. Watters, Clayton, for plaintiff-respondent.
   GUNN, Presiding Judge.

Maryland Casualty Company (Maryland) appeals from a circuit court judgment reforming a contract of insurance to name St. Louis County National Bank (County National) loss payee under a policy issued to Hazel Novelty and Cabinet Company (Hazel). Maryland was ordered to pay County National $9,322.88, the amount of loss resulting from a fire which destroyed Hazel’s business premises in St. Louis, plus $4,303.70 interest accrued from the date of the fire to the date of the judgment. Maryland raises numerous points of error challenging the propriety of the reformation, the entitlement of County National to the proceeds in light of competing federal tax liens and the authority of the court to award interest. We affirm the judgment except as to the award of interest, which must be modified to comply with the terms of the policy.

Hazel is a Missouri corporation in the business of manufacturing wooden cabinets and other similar products. On August 31, 1965, Hazel, through its president, Frank O. Steiner, procured a loan from County National secured in part by its inventory. Financing statements were timely filed with the Secretary of State and with the St. Louis City Recorder of Deeds. Under the terms of the security agreement Hazel was to keep its inventory fully insured against fire and casualty loss. The policies were to contain a loss payable clause naming County National payee “as its interest may appear, the form of endorsements to such policies to that end to be otherwise in form and content satisfactory to Bank.”

Steiner initially obtained the required insurance on Hazel’s inventory from Independent Lumberman’s Mutual Insurance Company. Under those policies, which were in effect until March of 1968, County National was named loss payee. Early in 1968, Steiner decided to change insurers. He contacted a personal friend, Frank Bittner, who was an officer of the Stuckenberg Insurance Agency Inc., (Stuckenberg) to secure the new coverage on Hazel’s inventory. In the course of discussing the type of coverage sought, Steiner explained Hazel’s relationship with County National to Bitt-ner and instructed him to name the bank loss payee under a fire and extended loss policy. To ensure that the proper coverage was secured, Steiner gave Bittner a copy of the Lumberman’s Mutual policy which contained a loss payable clause in favor of the bank. Bittner examined the old policy and then, according to Steiner, gave an oral assurance that insurance providing identical coverage was bound. It was stipulated that Stuckenberg was the local agent for Maryland and that Bittner was an officer of Stuckenberg with the authority to bind Maryland to temporary contracts of insurance and to countersign policies issued by Maryland’s St. Louis branch office.

Neither Hazel nor County National received a written binder. It was stipulated that on March 18, 1968, Stuckenberg through Bittner obligated Maryland to a temporary binder of insurance providing fire and extended coverage in the amount of $10,000 on Hazel’s inventory.

The policy itself was not countersigned by Bittner until August 5, 1968, and it was not delivered to Hazel until after August 24, 1968, the date of the fire. Because of this delay in issuance of the policy, Steiner became concerned. He telephoned Bittner on three occasions to inquire about the status of the policy. Each time Bittner assured him that the coverage was bound and that the policy would be forthcoming after necessary endorsements were obtained. Because of Bittner’s assurances Steiner did not seek other insurance coverage.

Rodney Hill, a County National loan officer in charge of the Hazel account, testified that it was standard practice in the banking industry to require debtors to procure insurance on collateral naming the lender bank as loss payee. He stated that he and Steiner discussed Hazel’s obligation under the security agreement to obtain insurance accomplishing this result. Hill also stated that he spoke with Bittner twice in the summer of 1968. During these conversations he informed Bittner that County National was to be named loss payee with a standard mortgage clause under the fire and extended loss policy. According to Hill, Bittner assured him that he had bound the requested coverage.

Merle Sanguinet, executive vice-president of County National, also testified to a conversation he had with Bittner concerning Hazel’s insurance. In August of 1968, Bitt-ner came to the bank seeking assistance from Sanguinet to persuade Steiner to pay the premiums for the fire insurance. Bitt-ner told Sanguinet that he knew of the debtor-creditor relationship between Hazel and County National and that it was in the bank’s interest to ensure that the policy remained in force. Sanguinet told Bittner he would do what he could to assist in the collection of the premium.

On August 24, 1968, a fire destroyed Hazel’s inventory. Shortly thereafter, County National first learned that it had not been named loss payee under the policy. Although the policy issued contained a loss payable clause, the space reserved for the name of the payee was left blank. On September 6, 1968, Hazel assigned to County National its right to the proceeds of the Maryland policy. Having no written evidence of the insurance covering its interest, County National took the assignment “for whatever it might be worth.” A proof of loss statement dated February 12,1969, was filed with Maryland by Hazel claiming $9,322.88 in fire related losses.

The major complication in this case arises from the fact that on June 12, 1968 and on August 2, 1968, the Internal Revenue Service filed notices of liens, totaling $12,-159.01, with the St. Louis City Recorder of Deeds against Hazel for unpaid taxes. On November 26, 1968, the Internal Revenue Service served a notice of levy on Maryland against Hazel in the amount of $9,325.35. Prior to that date Maryland had been served with a writ of garnishment arising from a prior judgment against Hazel in favor of Richard and Gladys Green.

On March 12, 1969, Maryland issued a draft for $9,322.88 naming Hazel, the Internal Revenue Service, County National and the Greens as payees. The draft was first forwarded to County National which returned it to Maryland without endorsement. Maryland then forwarded the draft to the Internal Revenue Service. The District Director and the Greens endorsed the draft, and it was deposited with the Federal Reserve Bank of St. Louis for credit to the Treasurer of the United States. The draft was subsequently presented to Maryland and was honored although it was endorsed by neither County National nor Hazel.

County National filed this suit in equity seeking reformation of the Maryland policy to name it as loss payee. The circuit court, sitting without a jury, granted the requested reformation and found that under the policy as reformed, County National’s rights to the proceeds were superior to those of the Internal Revenue Service. Maryland was ordered to pay the proceeds of the policy to County National with interest ($13,626.58). Maryland appeals from this judgment.

As this is an equitable proceeding tried without a jury, appellate review is governed by Rule 73.01 V.A.M.R. We review both the law and the evidence giving due regard to the superior opportunity of the trial court to judge the credibility of witnesses. The judgment of the trial court will be sustained unless there is no substantial evidence to support it; unless it is against the weight of the evidence; unless it erroneously declares the law; or unless it erroneously applies the law. MFA Mutual Ins. Co. V. Thost, 561 S.W.2d 431 (Mo.App.1978); Macalco, Inc. v. Gulf Ins. Co., 550 S.W.2d 883 (Mo.App.1977).

The first general issue raised is whether reformation of the insurance contract between Maryland and Hazel to name County National as loss payee was an appropriate remedy supported by the evidence. We believe it was. Reformation is an equitable remedy available to either party to a contract when the written instrument embodying their agreement does not express the true contract the parties agreed to and desired to put into writing. Equity will not impose a new contract upon the parties but will reform the instrument to accurately set forth the terms of the actual agreement. King v. Riley, 498 S.W.2d 564 (Mo.1973); Walters v. Tucker, 308 S.W.2d 673 (Mo.1957). It is not necessary to show that the parties to the contract agreed upon any particular language to be used; it is sufficient to show that they agreed to accomplish a particular object by the instrument and that the instrument as executed is insufficient to effectuate their intention. Bollinger v. Sigman, 520 S.W.2d 710 (Mo.App.1975). Before an instrument will be reformed, the proponent of the reformation has the burden of proving by clear and convincing evidence that a mistake mutual and common to both parties has been made. It must be clear that the instrument has done what neither party intended. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo.banc 1973); Edwards v. Zahner, 395 S.W.2d 185 (Mo.1965); Walters v. Tucker, supra. If such a mistake is shown it is irrelevant whether it is a mistake of law or fact or merely a scrivener’s error; all may be rectified in equity. Edwards v. Zahner, supra; Erickson Refrigerated Transp., Inc. v. Canal Ins. Co., 474 S.W.2d 337 (Mo.App.1971); Couch on Insurance 2d § 66:51.

The remedy of reformation is available to reform insurance contracts under the same principles as any other contract. Peterson v. Commonwealth Casualty Co., 212 Mo.App. 434, 249 S.W. 148 (1923). In the insurance contract situation, whether the elements supporting reformation are present rests largely on questions of agency law. The corporate insurer’s contact with the individual seeking insurance is usually through a third party at a local insurance agency. The third party may be an agent for the insured or the insurer depending on the circumstances surrounding the transaction. For whom he acts, as well as the extent of his powers, is determined by the general law of agency. Couch on Insurance 2d § 26:53.

In the absence of fraud or collusion between the agent and the insured, the insurer is bound by the acts or representations of its agent within the scope of his real or apparent authority, unless limitations on the agent’s powers are known by the insured. Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811 (Mo.App.1975); Galemore Motor Co., Inc. v. State Farm Mut. Automobile Ins. Co., 513 S.W.2d 161 (Mo.App.1974); Voss v. American Mut. Liability Ins. Co., 341 S.W.2d 270 (Mo.App.1960). The relationship of agent and principal will not be presumed but must be proved by the party asserting the existence of the relationship. Neither the existence nor the scope of the agency may be established solely by the declarations of the alleged agent. Morrow v. Loeffler, 297 S.W.2d 549 (Mo.1956); Dudley v. Dumont, 526 S.W.2d 839 (Mo.App.1975). Once agency is proved there is no legal restriction on the power of an agent acting within the scope of his authority, actual or apparent, to bind the insurer by an oral contract of insurance. Morris v. Reed, 510 S.W.2d 234 (Mo.App.1974); Voss v. American Mut. Liability Ins. Co., supra. The acts and knowledge of the agent are the acts and knowledge of the insured. Edwards v. Zahner, supra.

Maryland’s initial contention is that the trial court erred in its conclusions of law that Bittner was Maryland’s agent and that he, as its agent, agreed with Hazel that County National was to be named loss payee under the insurance contract. Maryland asserts that Bittner’s agency relationship, as well as his agreement with Hazel concerning the loss payable clause, was supported only by Bittner’s declarations to third parties which were inadmissible as hearsay.

Maryland’s argument is without merit. County National proved by substantial and competent evidence not only that Bittner was Maryland’s agent with the actual authority to bind it to the insurance coverage sought, but also that the true agreement between the parties was that County National be named loss payee. The parties entered into a stipulation of facts in which Maryland admitted that Stuckenberg was its local agent and that Bittner was a duly authorized officer of Stuckenberg empowered to bind Maryland to temporary insurance binders and to countersign policies of insurance. It further admitted in its answer that Bittner issued a temporary binder to Hazel and that Maryland eventually issued a policy on ■ Hazel’s property. These admissions were sufficient to establish that Bittner was an agent for Maryland with the power to bind it to contracts of insurance. His knowledge of Hazel’s insurance needs and his agreement to provide for those needs is binding on Maryland.

The fact that there was an agreement between Hazel and Bittner that County National was to be named loss payee under the fire and extended coverage policy is supported by ample evidence. Steiner testified that he specifically informed Bittner that County National was to be named loss payee. He gave Bittner a copy of a predecessor policy which properly named the bank payee in order to ensure that County National’s interests under the security agreement would be equally protected under the new policy. Moreover, when Bitt-ner encountered premium payment difficulties with Hazel, he contacted Mr. Sanguinet at County National for assistance in collection, confirming his awareness of County National’s interest under the policy and its and Hazel’s desires regarding the loss payable clause.

The fact that Bittner, acting as Maryland’s agent, agreed to secure a policy of insurance to conform with those desires is established by his direct admissions to both Steiner and Hill that the coverage naming County National loss payee was bound. Maryland’s contention that Bitt-ner’s out of court declarations were hearsay and inadmissible is not meritorious. Declarations of an agent in the course of, relating to, or connected with the ordinary business of the principal within the scope of his authority are excepted from the general prohibition against hearsay and are competent as admissions against the principal. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947 (1936); State ex rel. State Highway Comm’n. v. Baker, 505 S.W.2d 433 (Mo.App.1974). Such statements are admissible even though the declarant’s unavailability is not shown. Roush v. Alkire Truck Lines Inc., 299 S.W.2d 518 (Mo.1957).

The evidence was sufficient to prove that Bittner was an agent of Maryland with actual authority to bind policies of insurance and that he agreed with Hazel to name County National loss payee. No explanation appears in the record why this agreement was not set forth in the policy issued. In a suit for reformation, however, the source of the mistake is not relevant; it is the fact of the mistake which empowers the court of equity to act. The parties were in agreement as to the objectives of the insurance coverage. The form of policy to accomplish that design was .left to Bitt-ner’s discretion. “[W]hen an applicant for insurance correctly states his interest in the property to be insured and distinctly asks for insurance thereon, and the agent of the insurer agrees to comply with his request and assumes to decide on the form of the policy to be written for that purpose, but by mistake of law adopts a form which does not cover such an interest, equity will reform the policy so as to make it cover that interest.” Erickson Refrigerated Transp., Inc. v. Canal Ins. Co., supra, 474 S.W.2d at 340.

Maryland argues that even if Bitt-ner had the actual authority to temporarily bind insurance he had no authority under the terms of the policy to waive or to change its provisions once the policy was issued. Maryland’s argument misconstrues the remedy of reformation and implies that once a policy is issued it may not be reformed to embody the actual agreement between the local agent and the insured. A clause in an insurance policy purporting to limit the power of an agent to modify the policy does not bar reformation. Couch on Insurance 2d § 66:12. In Peterson v. Commonwealth Casualty Co., supra, the court answered a contention similar to that raised here by Maryland. It stated: “But what authority the agent had respecting the policy delivered is not the question. The question is: Did the agent have authority to sell the kind of policy the plaintiff bought.” Id. at 51. The court held that where agent had the authority to sell the type of policy agreed to between the insured and himself, a clause in the policy stating that the agent had no power to waive or change the provisions of the policy did not bar reformation of the contract to provide the insurance actually sought.

The policy issued by Maryland contained a blank loss payable clause of the type sought by Hazel. It is manifest, therefore, that Bittner had the authority to sell such a policy to Hazel. The court’s judgment reforming the policy is sustained. See also, Erickson Refrigerated Transp., Inc. v. Canal Ins. Co., supra.

Maryland next argues that the trial court erred in its conclusion of law that the proceeds of the policy vested in County National, as loss payee, upon the occurrence of the fire August 24, 1968. It argues that the proceeds first vested in Hazel at which time the hovering federal tax liens attached, taking priority over the bank’s rights under the policy. We reject Maryland’s argument in this regard.

It must be remembered that because of the reformation of the insurance contract, the rights of the respective parties are determined under the policy issued as if it had named County National loss payee in the manner the parties had agreed. Under the terms of the 1965 security agreement. between County National and Hazel, the bank was to be named loss payee under the fire and extended coverage policy “as its interest may appear, the form of the endorsements to such policies to that end to be otherwise in form and content satisfactory to Bank.” The issue to be decided under a policy containing the specified loss payable clause is whether County National has priority to the proceeds over the federal government’s tax liens. Notwithstanding Maryland’s assertions to the contrary, County National does not base its claim to priority on the security agreement which was perfected prior to the federal tax liens. Rather, it asserts that its right to the proceeds was an independent contract right under the loss payable clause of the insurance policy. County National argues that prior to the loss caused by the fire the right to the proceeds was contingent and not subject to any lien. Upon the occurrence of the loss, the right to the proceeds vested in it pro tanto, before Hazel acquired any interest or right to which the federal tax liens could attach.

There is no challenge as to the propriety of the government’s liens against Hazel under 26 U.S.C. §§ 6321 and 6331. Under those sections the government has a lien against all “property and rights to property” belonging to a delinquent taxpayer which may be levied upon after a notice of lien is filed. Moreover, both parties concede that under the “Choateness Doctrine” no lien could attach to the insurance proceeds so long as there was but a contingent right to their receipt, because rights not in existence at the time of the demand upon a taxpayer are not subject to any lien. United States v. Long Island Drug Co., Inc., 115 F.2d 983 (2d Cir. 1940).

A fire insurance contract such as that involved in this case is but a conditional contract to indemnify upon the happening of a future event — a loss of the insured property due to fire. Home Ins. Co. v. B. B. Rider Corp., 212 F.Supp. 457 (D.N.J.1963). Until the loss occurs neither the insured nor the loss payee has a vested right to receive the proceeds, and there is no existing property or property right to which a lien may attach. Chrysler Credit Corp. v. Empire Mutual Ins. Co., 31 AFTR2d 73-713 (S.D.N.Y.1972). While the taxpayer’s rights remain contingent he may prevent the attachment of a tax lien by divesting himself of those rights at any time before they vest. Home Ins. Co. v. B. B. Rider Corp., supra. Whether one has successfully divested himself of contingent rights to property is a question of state law. United States v. Sterling Nat’l Bank and Trust Co. of N. Y., 494 F.2d 919 (2d Cir. 1974). The federal tax lien statute does not enter into the determination; it does not create property rights in the government but merely provides for the attachment of a lien to property rights created under state law. Home Ins. Co. v. B. B. Rider Corp., supra. Thus, we look to state law to determine when and in whom the right to receive the proceeds of the fire insurance vested.

Maryland, in arguing that Hazel acquired a vested right in the insurance proceeds to which the tax lien attached, relies principally on the fact that the loss payable clause specified in the security agreement was an open or simple mortgage clause as distinguished from a union or standard clause. A loss payable clause is construed as open where it directs the insurer to pay the proceeds of the policy to the named payee “as his interest may appear” and contains no other provision protecting the payee’s rights against breach of the insurance contract by the insured. Ramsey v. Farmer’s Mut. Ins. Co., supra; Prudential Ins. Co. v. German Mutual Fire Ins. Ass’n, 228 Mo.App. 139, 60 S.W.2d 1008 (1933). Under an open clause, the payee or mortgagee’s rights, as against the insurer, are dependent upon acts of omission and commission by the insured. Ramsey v. Farmer’s Mutual Ins. Co. of Macon, 234 Mo.App. 1102, 139 S.W.2d 1027 (1940). The mortgagee is named payee of the proceeds (or a portion thereof), but there are no other provisions in his favor. Couch on Insurance 2d § 42:649. Breach of the terms of the policy by the insured, by act or neglect, prior to the loss so as to render the policy void as to him will render the policy void as to the mortgagee as well. Prudential Ins. Co. v. German Mut. Fire Ins. Ass’n, supra. There is no privity of contract created between the insurer and the mortgagee; the mortgagee is not a party to the contract but is an appointee to receive the proceeds to the extent of his interest in case of loss. Prudential Ins. Co. v. German Mut. Fire Ins. Co., 231 Mo.App. 699, 105 S.W.2d 1001 (1937); Prudential Ins. Co. v. German Mut. Fire Ins. Ass’n, supra, Couch on Insurance 2d § 42:660. Prior to the loss the mortgagee’s rights are generally no greater than those of the insured’s; if the insured has no right to recover, neither does the mortgagee. Brown v. State Auto. Ins. Ass’n, Auto. Underwrit. Corp., 265 S.W.2d 741 (Mo.App.1954); Couch on Insurance 2d § 42:663. As against the insurer the mortgagee stands in the insured’s shoes and is generally subject to the same defenses. Semo Motor Co. v. National Mut. Ins. Co., 383 S.W.2d 158 (Mo.App.1964).

Under a standard or union mortgage clause the mortgagee’s rights under the policy are protected against the insured’s breach of the insurance contract by an additional provision stating that the mortgagee is not bound by the default or breach of the insured. Semo Motor Co. v. National Mut. Ins. Co., supra; Couch on Insurance 2d § 42:649; § 42:685. It functions as an independent contract of insurance between the insurer and the mortgagee. Ramsey v. Farmer’s Nat. Ins. Co., supra; Prudential Ins. Co. v. German Mut. Fire Ins. Ass’n, supra. The independent contract is not void for lack of consideration, because the consideration for the standard mortgage clause is that paid by the insured for the original policy. Prudential Ins. Co. v. German Mut. Fire Ins. Ass’n, supra. Thus, under a standard clause the rights of the mortgagee under the policy are determined immediately upon the creation of the contract though liability of the insurer and the amount remain contingent until the occurrence of the loss. Maryland concedes that under a standard clause no lien could attach to the mortgagee’s interest in the proceeds, because his interest vested prior to the time it became choate without ever having vested in the insured.

Under an open clause, the respective rights of the insured and the mortgagee to the proceeds are not determined and fixed until the happening of the event insured against, because the insured by his breach prior to the loss may completely defeat the mortgagee’s rights under the policy. Hahn v. National American Fire Ins. Co., 233 Mo.App. 756, 127 S.W.2d 94 (1939). The amount due the mortgagee is fixed at the amount of the mortgage debt outstanding at the time of the loss. Hartford Fire Ins. Co. v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066 (1939). The right to the excess of the proceeds over the amount of the debt is vested at the same moment in the insured. Id. Once vested, the mortgagee’s right to the proceeds may not be divested by any act or omission of the insured without the mortgagee’s knowledge and consent. Semo Motor Co. v. National Mut. Ins. Co., supra; Hahn v. National American Fire Ins. Co., supra; Couch on Insurance 2d § 42:678; § 642:679. Thus, even under an open clause on the occurrence of the loss, the mortgagee’s right to the proceeds to the extent of his interest is, as against the insurer, superior to that of the insured. “[T]he right to sue is in the mortgagee alone upon the theory that the clause in the insurance policy gives him the same rights as if the policy had been absolutely assigned to him.” Hartford Fire Ins. Co. v. Bleedorn, supra at 1070-1071. See also Ridge v. Home Ins. Co., 64 Mo.App. 108 (1895).

In light of the previous discussion relating to the rights of mortgagees under open and standard clauses, we cannot discern how the distinctions between the two types of clauses can affect the outcome of this case. Under both, upon the occurrence of the loss, the right of the mortgagee to the proceeds is identical, i. e., superior to that of the insured to the extent of the outstanding debt.

In Chrysler Credit Corp. v. Empire Mut. Ins. Co., supra, the court was faced with a question almost identical to that presented here. The insured had purchased a car under a retail installment contract which was later purchased by Chrysler. Under the contract, the debtor was required to insure the car against loss naming Chrysler loss payee “as its interest may appear.” At the time the insured purchased the car, notices of federal tax liens had been filed against him. Shortly after the policy took effect the car was destroyed and the Internal Revenue Service served the insurer with a notice of levy to satisfy its tax liens. The insurer then issued a draft made payable to the insured, Chrysler and the Internal Revenue Service. The draft was honored though the Internal Revenue Service was the only endorser. Chrysler sued the insurer for its proportionate share of the proceeds under the loss payable clause of the policy. The insurer defended by arguing that upon the loss the proceeds became property or a right in property of the insured to which the tax liens attached. The court, however, rejected the insurer’s argument holding that under the open loss payable clause the insured had assigned away his right to the proceeds while it was still contingent and inchoate to the extent of Chrysler’s interest. Upon the occurrence of* the loss, Chrysler was vested, pro tanto, with an interest independent of the taxpayer’s and not subject to liens outstanding against him.

Maryland has cited no case in which a contrary result has been reached. It argues that the court in Home Ins. Co. v. B. B. Rider Corp., supra, reached a contrary result. It is true that the court found for the government based on its tax lien and against the payee under a loss payable clause. The court, however, stated that it held as it did because the insurance policies were not before the court and there was no secondary evidence requiring a finding to the contrary. The entire proceeds of the policy were considered to have vested, at least momentarily, in the insured at the time of the loss, and the tax liens took priority over the unproved loss payable clause. Here, we have the loss payable clause before us, and under its terms hold that the proceeds of the policy on the occurrence of the loss vested pro tanto in the loss payee and not the insured.

We believe that in the wake of our conclusions regarding the respective rights of the parties under an open loss payable clause, the Chrysler decision is well reasoned and should be followed.

Maryland next argues that because it procured Hazel’s assignment of the rights under the insurance policy, County National is estopped from asserting any rights under the loss payable clause. The existence of the purported assignment is stipulated. There is no evidence to show that Maryland in any way relied on the assignment or was misled to its detriment. Estoppel, to arise as a defense, requires a showing of an act or statement inconsistent with a later asserted claim, action or forbearance by the other party in reliance on such act or statement and prejudice resulting therefrom. Bresnahan v. Bass, 562 S.W.2d 385 (1978); Lucas v. Beco Homes, Inc., 494 S.W.2d 417 (Mo.App.1973). There was absolutely no showing, aside from Maryland’s unsubstantiated statement in its brief, that it relied on the fact of the assignment to its prejudice. Moreover, one may not set up another’s act or conduct as a ground for estoppel unless he was misled or deceived thereby. Nor may a party who knew or had the means to know the true basis of the recovery rely on the defense of estoppel. Land Clearance for Redevelopment Authority v. Dunn, 416 S.W.2d 948 (Mo.1967); Hall v. Charlton, 447 S.W.2d 5 (Mo.App.1969). In this case Maryland is imputed with the knowledge of its agent, Bittner, that County National was entitled to payment of the proceeds under the loss payable clause of the policy. The assignment granted is not inconsistent with County National’s rights under the mortgage clause. Any additional protection County National may have sought to achieve by means of the assignment does not relieve Maryland of its knowledge of the bank’s rights under the policy. County National was not estopped to assert its rights under the policy.

Finally, Maryland argues that the trial court erred in awarding County National interest on the principal of the judgment from the date of the fire, August 24, 1968, to the date of the judgment, May 6, 1976. Maryland’s argument is correct in part. Under the terms of the policy the insurer was not required to pay out the proceeds until 60 days after the proof of loss statement was filed. The court, therefore, erred in awarding interest from the date of the loss. Spink v. Mercury Ins. Co., 260 S.W.2d 757 (Mo.App.1953). Under § 408.020 R.S.Mo 1969, however, interest from the date that the proceeds became due and payable was proper. Shultz v. Queen Ins. Co., 399 S.W.2d 230 (Mo.App.1965).

The judgment of the trial court is affirmed, except for its order compelling Maryland to pay accrued interest on the principal of the judgment from the date of the loss. The cause is remanded to the trial court with directions to amend its judgment to award interest from the date the proceeds became due and payable to the date of judgment.

SIMEONE, C. J., and KELLY, J., concur.

      . For reasons unexplained Bittner did not appear at trial. All testimony as to statements allegedly made by him to third persons was admitted over Maryland’s objection that it was hearsay. We shall examine the admissibility of these statements in our discussion relating to the propriety of the reformation of the insurance policy.

      . On the date of the fire Hazel’s outstanding debt to County National exceeded $60,000. At no time since the fire has the balance due been • less than the amount of loss claimed.

      . The appeal was first filed with the Missouri Supreme Court but was transferred to this court for lack of jurisdiction. St. Louis County National Bank v. Maryland Casualty Company, 555 S.W.2d 33 (Mo.banc 1977).

      . See Couch on Insurance 2d § 26:191. “The local agent of an insurance company is the medium through which the business of procuring insurance contracts is customarily carried on and such agents frequently make parol contracts of present insurance which, if within the scope of the agent’s authority are binding upon the insurer. A local agent is clothed with apparent authority to make an oral contract of insurance, unless the insured knows that the making of an oral contract would be to exceed his authority.”

      . In Peterson, the court held that where the policy issued does not conform to the agreement of the parties it may be reformed even though the mistake was that of a soliciting agent who had no power to issue policies.

      . In the second point relied on Maryland asserts that “The court erred in its finding of fact No. 10 and its conclusion of law No. 4 that the bank relied on the representations of Bittner that it had been named as a loss payee in the policy.” This is nothing but an abstract allegation of error which fails to assert why and wherein the trial court erred. As such it violates Rule 84.04(d) V.A.M.R. If it were only the form of the point which was defective we would be constrained in the interests of justice to consider the point. In this instance, however, Maryland has not cited any case establishing that the bank’s reliance on Bittner’s representations was a necessary element for reformation. We decline to review this point further.

      . A lien is perfected in the sense that there is nothing left to be done to have a choate lien when the identity of the lienor, the property subject to the lien and the amount of the lien are established. United States v. Equitable Life Assurance Society, 384 U.S. 323, 86 S.Ct. 1561, 16 L.Ed.2d 593 (1966); United States v. Pioneer American Ins. Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963).

      . Maryland argues that because Hazel had repaid all of the outstanding principal on its loan from County National and its remaining debt consisted only of interest payments that to be required to pay interest on this judgment would be an agreement to pay interest on interest not sanctioned by the policy. It argues that under § 408.080 R.S.Mo 1969 such an agreement must be in writing to be enforceable. Its conclusion is in error. Maryland is not being required to pay interest on Hazel’s debt to County National, however it is categorized, but on the judgment against it in County National’s favor. Interest on the amount of the judgment from the day the proceeds became due and payable is permitted under § 408.020 R.S.Mo 1969.