author: SHANGLER, Presiding Judge.

text:
    Richard A. DEWEY, Appellant, v. Charlotte M. JENKINS et al., Respondents.
    No. KCD 28882.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      Gregory C. Lucas, Strop, Watkins, Roberts & Hale, St. Joseph, for appellant.
    Don Pierce, Downs & Pierce, St. Joseph, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MASON, Special Judge.
   SHANGLER, Presiding Judge.

This suit began as an action to partition the real estate which devolved by law to the three children of the decedent Acle Dewey. One of the three children, Charlotte M. Jenkins, brought a counterclaim which alleged that the decedent father had advanced $11,592.94 to Richard A. Dewey, another of the children, against his inheritance but that through his fraud and deception the advancement was not taken into account at the time of the settlement of the estate. The counterclaimant Jenkins asked the court to offset the advancement to son Dewey in the distribution of the proceeds of the partition sale to the three children, Jenkins, Dewey, and Rovilla Hartman, the other heir.

The reply of son Dewey to the counterclaim asserted two defenses: (1) that the rights of the heirs were conclusively determined by the probate court order of distribution and discharge of administrator which now stands as res judicata to the claim for advancement, and (2) that the claim is otherwise barred by a release of November 26, 1974 executed by all the parties.

At the trial there was evidence by Marion Jenkins, administrator of the Dewey estate, and husband of counterclaimant Charlotte Jenkins, that the estate was closed and his duties discharged on March 7,1975, but that four months later — on July 3, 1975, he found a document in the business office of decedent Acle Dewey of an advancement agreement between the decedent and his son, Richard Dewey. The document recited material, labor, and loans in the amount of $11,592.94 received by the son from the father for the construction of a home:

“The indebted amount above to be can-celled out as Paid by Gift, September 30, 1970, as part of my inheritance which will be determined at a later date.”

The signatures of son Richard, his wife Helen, and father Acle Dewey were affixed to the instrument.

The witness Marion Jenkins testified that during the course of administration he had numerous conversations with Richard Dewey as to money he might owe the estate and was told, variously, that he borrowed money from the father to build a house which he then repaid by a bank loan — and, variously, that the money was an outright gift. The wife of Richard Dewey also told him the money was a gift. Richard Dewey emphatically denied there was any writing of the transaction.

Another heir, Rovilla Hartman, sister of Richard Dewey, confronted him with a conversation with the father that he had advanced $12,000 to Richard to be repaid from his inheritance. Richard told her the amount had been repaid, and she believed him and gave the matter no further thought.

The other heir, Charlotte Jenkins, talked to Helen, wife of Richard Dewey, about the possibility that the father had made an advancement of inheritance to Richard. Charlotte asked her sister-in-law whether the money used to build their home was intended as part of the expectation from the estate, but was told with emphasis that the father had been repaid with money from the bank. Charlotte accepted the explanation and dismissed the matter completely.

The decedent, Acle Dewey, was a building contractor during his lifetime and operated as Ace Dewey, Inc. The administrator, Marion Jenkins, testified that their corporate records were not complete, nor did they show how the Richard Dewey house had been paid for completely. This uncertainty led him to inquire of Richard Dewey as to repayment and it was to this inquiry that Richard had given his assurances that he was no longer indebted. The document between Richard and Helen Dewey and Acle Dewey, found after the estate was formally closed, was discovered by Marion Jenkins lodged among some workbooks, and had eluded his diligent searches [as well as those of Helen Dewey whom he trusted to assist him] during his administration of the estate.

There was objection to the testimony of the advancement from the decedent father to son Richard on the ground that such evidence was precluded by the probate court judgment which was res judicata to the issue of advancement which was a demand the administrator could have brought in the probate proceedings. The objection moved that the evidence constituted a collateral attack on a final judgment and should be stricken. The trial court found Richard Dewey had overreached his two sisters by concealment of the fact of the advancement from them. The judgment entered charged Richard with the advancement, divided the proceeds from the partition equally among the three heirs, and then on principles of hotchpot, allocated one-half of the advancement to each of the sisters from the share of the son, and impressed the judgment upon the partition res.

The first point on appeal contends that the counterclaim does not plead a direct action in equity to set aside the probate court judgment, but only a collateral attack on that prior adjudication, and so does not support the relief granted.

A probate court adjudication which finally settles and distributes an estate and discharges the administrator constitutes a final judgment and is impregnable to collateral attack. Gorg v. Rutherford, 31 S.W.2d 585, 589[8-11] (Mo.App. 1930). Such a final judgment, as any other, may be set aside by equity in a direct

proceeding for that purpose where the fraud of an adversary prevents the complainant from presentation of the full strength of his case. Stark v. Cole, 373 S.W.2d 473, 477[9-11] (Mo.App.1963); 49 C.J.S. Judgments § 371. The fraud which prompts equity to act must be a deception in the procurement of the judgment and extrinsic to the issues adjudicated at the trial. Walther v. Null, 233 Mo. 104, 134 S.W. 993, 1002[6] (Banc 1911). The complaint of fraud, to be heard, must be unmixed with the negligence or want of due diligence of the party who seeks relief to act on knowledge to prevent the entry of judgment. Wuelker v. Maxwell, 70 S.W.2d 1100, 1102[4] (Mo.App.1934).

The counterclaim recites that Acle Dewey died intestate, left property, and was survived by the three children to each of whom an undivided one-third of the partition res descended by law. The counterclaim pleaded also that during his lifetime Acle Dewey agreed to advance $11,592.94 to his son Richard against his inheritance, but that through the deception and nondisclosure of son Richard the sum advanced was not taken into account in the settlement of the Acle Dewey estate. The counterclaim concludes with the request that the proceeds from the partition sale allocable to son Richard be set off in equal shares to the sisters in the amount of the advancement.

No doubt, the counterclaim in terms does not plead direct relief against the probate court judgment. There is no prayer that the order of final settlement, distribution and discharge of the administrator be set aside. That judgment comes into question only by adversión. Yet, a court of equity will not allow a formal mispleading to prejudice the substance of a claim, especially in cases of fraud. Pomeroy, Equity Jurisprudence § 910 (5th ed. 1941). In equity practice, no less than at law, the jurisdiction to enter a judgment rests on a pleading which states the theory of the case sufficiently to inform the adversary and the court the questions presented for decision. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 95[8, 9] (Banc 1944). But the rules of pleading do not apply with the same stringency to causes in equity when to do so impairs the inherent function of equity to give relief. That is only to say that equity looks to the substance of a claim not the form. Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107, 114[2-4] (Banc 1921); 30A C.J.S. Equity § 179.

The power of equity to grant relief against a judgment procured by fraud is inherent and peculiarly a matter of such jurisdiction. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S.W.2d 153, 155[4-6] (1932); 49 C.J.S. Judgments § 372. Equity is quick to redress a fraud the law cannot remedy. Strothcamp v. Sandy Ford Ranch, Inc., 440 S.W.2d 193, 195[1, 2] (Mo.App.1969). In the conferral of such a relief exclusively within its power to give, equity knows no limits but shapes the remedy to meet the demands of justice without regard to any determined form. Pomeroy, Equity Jurisprudence, § 910 (5th ed. 1941); McClintoek on Equity, § 14 (2d ed. 1948). Equity, however, rests on conscience and so will not render a decree, the circumstances considered, incompatible with fairness to the adversary.

The litigation to which the counterclaim is made is an action to partition real estate among the heirs at law. The statutory mode of such a proceeding [Chapter 528] does not preclude equity jurisdiction [Spitts v. Wells, 18 Mo. 468 (1853)] but, rather, the partition court is vested with chancery powers to adjudicate equitable claims. Devoto v. Devoto, 31 S.W.2d 805, 807[2-6] (1930) [transferred]; Devoto v. Devoto, 39 S.W.2d 1083, 1084[1, 2] (Mo.App.1931). Thus, the counterclaim which seeks to redress a fraud from the proceeds of the sale merely invokes the latent equity powers of the partition court.

The counterclaimant rests her standing before equity on allegations that: she is an heir equally with her brother and sister to the estate of the deceased father; that there was an advancement by the father to the brother against his inheritance; that because of the deception and non-disclosure of the son the sum advanced to him was not taken into account at the settlement of the estate; and that the amount thus wrongfully received from the estate be set off to the sisters from the proceeds due the brother from the partition sale. The counterclaim, albeit rudimentary, pleads an understandable action for fraud and a claim to equity. The pleading does not in express terms request that the probate court judgment be set aside, but that imputation inheres in the equity sought.

The son Richard contends that the circumstances of the fraud were not pleaded with the particularity required by Rule 55.15. The reply, however, does not set up that ins ifficiency nor seek dismissal on that ground. Rather, as the son Richard concedes, the pleading clearly intends an action on fraud. Moreover, the evidence taken most favorably to the decree, proves each of the component elements of actionable fraud. Kestner v. Jakobe, 446 S.W.2d 188, 193[1, 2] (Mo.App.1969):

A misrepresentation:
The brother, Richard, in response to the separate inquiry of the sisters and administrator as to the possibility of an advancement still extant replied, on the one hand, that the money to build the house had been a gift from the father and, on the other hand, that it was an advancement since fully repaid. These were positive affirmations of fact, and untrue.
Falsity:
Richard knew when he made them that these statements were false — as evidenced by the exhibit document wherein he acknowledged that the money received from the father was an advancement against inheritance from him.
Materiality:
That these representations go to the substance of the dispute between the brother and sisters is not in dispute. Had the advancement agreement been known during pendency of the estate, the administrator in the normal discharge of duty would have sought adjudication that the unpaid advancement be deducted from the distributive share due Robert.
Knowledge by the utterer of the falsity of the representations or ignorance of its truth; intent that the representations should be acted on by the persons in the manner reasonably contemplated:
The evidence allows the imputation of these two elements of proof consistent with the judgment entered by the trial court — that Robert knew his statements were false and that they were intended to mislead his sisters into belief that there was no unpaid advancement and so induce their inaction. Robert did not testify, so his state of mind is left to these inferences alone.
Ignorance of the hearers of their falsity, reliance on their truth, and the right to rely thereon:
The evidence allows, also, the conclusion that although the sisters had intimations of an advancement, they had no actual knowledge of the arrangement or that the explanations of repayment given them by Robert were not truthful. [Although the representations — that the money was a gift and that the money was an advancement since repaid — appear contradictory, the statements could readily have been understood to mean that the portion of the advancement not sufficiently repaid by the bank loan was forgiven by gift.] Nor can brother claim that the sisters lacked due attention to their interests by failure to make another or different inquiry so as to be culpable for the loss of their legal remedy in the probate court action.
The fraud practiced on the sisters was not only a false representation but a suppression of the truth in circumstances which compelled them to rely on what he told them. There had been diligent search for documents which could relate to such a transaction but none were found until after the probate court order of distribution became a final judgment. In the absence of such a species of proof neither the sisters nor the administrator reasonably could avail to prove the advancement. The general doctrine which denies the aid of equity to a suitor who neglects means of information within easy reach does not apply where the fraud consists of a positive representation intended to induce the very conduct which then results. Universal C. I. T. Credit Corporation v. Tatro, 416 S.W.2d 696, 703[16-20] (Mo.App.1967); Judd v. Walker, 215 Mo. 312, 114 S.W. 979, 980 (1908). Rather, one may act “upon a positive representation of fact notwithstanding . . the means of knowledge [are] especially open to [the person to whom it is imparted].” Cottrill v. Crum, 100 Mo. 397, 13 S.W. 753, 755 (1890). And this principle has special validity in circumstances where the facts may be assumed to be within the knowledge of the person who declares them. Pomeroy, Equity Jurisprudence, § 895 (5th ed. 1941).

A court of equity will set aside a judgment for fraud in the procurement, proved but not pleaded, where the petition as a whole adequately presents the issue, and where the want of precise allegation does not mislead or otherwise disadvantage the adversary. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S.W.2d 153, 155 (1932). This exercise rests on the maxims that the substance of an action controls the form [Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107, 114[2, 3] (Banc 1921)], that where equity obtains jurisdiction over a feature of a controversy it will proceed to award complete relief [Phelps v. Scott, 325 Mo. 711, 30 S.W.2d 71, 75[5] (1930)] and that equity avoids multiplicity of suits and circuity of action. Pomeroy, Equity Jurisprudence, § 251 et seq. (5th ed. 1941).

The parties cite Stark v. Cole, 373 S.W.2d 473 (Mo.App.1963) from this court both to support equity jurisdiction to adjudicate the fraudulent procurement of the probate court judgment — even in the absence of specific pleading of the decree and request that it be set aside — and also to deny assumption of jurisdiction. The appeal in Stark v. Cole, supra, was from the dismissal of the petition — before evidence was taken. The pleading alleged that the wrongdoing of the administrator and surety to deprive the plaintiff heir-at-law assets due her from the estate and sought an accounting. A final settlement and order of distribution some years earlier had been adjudicated in the probate court proceeding. The court determined that the judgment concluded those matters necessarily involved in the settlement, including the claim of the plaintiff, and was not subject to the collateral attack of the petition for accounting. The court did not turn the plaintiff away, however, but allowed amendment of the petition by separate count in equity to nullify and set aside the final settlement for fraud as prelude to the remedy for accounting. To adopt that course and remand for repleading when, as here, the cause of action pursued and the remedy sought are fully known to the adversary, and when proof has been made, would simply be to multiply actions beyond necessity in contradiction of the tenets of equity. Rather, as in Johnson v. Stull, 303 S.W.2d 110 (Mo.1957), the court will treat an action as a direct attack against a judgment procured by fraud where the parties understood that to be the issue the evidence litigated and where that relief was consistent with the pleadings. See also Johnson Timber & Realty Co. v. Belt, supra, l. c. 155[4—6].

The other point contends that recovery is barred to the sister nevertheless because on November 26, 1974, while the estate still pended the three children, Charlotte Jenkins, Rovilla Hartman and Richard Dewey by formal document released each other, from all actions, claims and demands whatsoever. The brother contends that the inclusive recitation of release of claim: “which any of them has against the other or others or ever had . or may have by reason of any matter whatsoever at any time prior to the date of these presents . . . ” must be understood to include the subject of the counterclaim— the advancement.

The agreement of release was not only among the heirs, but also included M. R. Jenkins as signatory in his capacity as administrator of the estate and as president of Ace Dewey, Inc. [construction firm owned and operated by decedent] and as president of Starlight Building Specialties [apparently an affiliate firm]. The essential subject of the release was to facilitate the liquidation of the Dewey, Inc. construction enterprise and its obligations under contracts still to be completed. The agreement included terms, among others, for consent of the heirs to a petition in the probate court for the disbursement of $24,000 to meet the obligations of a performance bond on the construction. The agreement then recited — without further definition — a state of dispute among the parties and that the purpose of the agreement was to fully settle these disagreements without resort to litigation. The agreement then goes on to delineate the agreed undertakings of the various parties signatory as to the liquidation of the Dewey, Inc. indebtedness, including a provision for a residual liability of the heirs for work on contracts yet to be performed. There was a separate agreement among the three heirs to defer the partition action for one year and to cooperate in that sale.

If it may be assumed plausibly that these recited agreements show intention to take into account .the possibility of advancements to the heirs, nevertheless, the release would have no efficacy as to that subject-matter fraudulently concealed from and misrepresented to the sisters. The trial chancellor found expressly that the agreement signed by the sisters did not preclude their counterclaim because the brother had fraudulently concealed from them the fact of the advancement. The brother cannot contend release from a claim of which the sisters had no knowledge, particularly where his conduct prevented that knowledge. The evidence supports the determination of the trial court. Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

The evidence suffices to sustain the implicit determination of the trial court that the probate court judgment was procured by the fraud of brother Richard and that the proceeds due him from the partition sale are impressed with the equity of the sisters. Stark v. Cole, supra, l. c. 477[9-11].

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Judge.

license: Public Domain

text:
    Jennie TRANTHAM, Helen Reagan, and Sarah Jane Bess, Appellants, v. William C. TRICE, Public Administrator for the County of Boone, State of Missouri, and Administrator of the Estate of William Rice Challis, Deceased, and George D. Peters, John D. Peters, and the unknown and unborn issue, heirs, grantees and successors of Helen Reagan, George D. Peters, Sarah Jane Bess and Jennie Trantham, Respondents.
    Nos. KCD 29086 and KCD 29069.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      Harry T. .Limerick, Jr., Columbia, for Jennie Trantham.
    Dale Reaban, Kirkwood, for Helen Reagan.
    William Brandecker, Columbia, for Sarah Jane Bess.
    B. Daniel Simon, Columbia, for William C. Trice, Adm.
    Raymond C. Lewis, Jr., Columbia, for George D. Peters and John Peters; Smith, Lewis & Rogers, Columbia, of counsel.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

This is an action to construe the last will and testament of William Rice Challis, deceased, who died on September 16,1974, the will having been executed by him on June 26, 1943, and his wife, Margaret Challis, having predeceased him.

Item III of the will left to Helen Reagan $1.00. Item V of the will left the residue of the estate, “in equal shares to Madeline Peters, Ruth Jordan, Chloe Jordan, and Vera Wiedmeyer; but in case any of them shall have died in my lifetime leaving issue living at my death such issue shall take the share which his or her parent would have taken had such parent survived; and if no issue shall have survived said named devi-see and beneficiary who died in my lifetime, then I give, devise and bequeath the share given to her to the individuals named in this item who do survive me, to be divided equally among them.”

Ruth Jordan and Chloe Jordan predeceased testator without leaving issue. Madeline Peters, who was a niece of testator’s wife, predeceased him, but left two adopted children, respondents George D. Peters (who was adopted November 18, 1937) and John D. Peters (who was adopted May 21,1936). Vera Wiedmeyer, a niece of testator, also predeceased testator leaving as her issue appellant, Sarah Jane Bess. Appellant, Helen Reagan (who was bequeathed $1.00) is a daughter of testator’s brother, John Challis. Jennie Trantham was a sister of testator, not mentioned in the will. Jennie died during the pendency of this appeal, and Harry T. Limerick, Jr., executor of her estate, was substituted in her place as a party.

This appeal revolves around the construction of the will by the trial court, giving to respondents Peters one-fourth each of the residuary estate (a total of one-half), and each of appellants attack that interest awarded to the Peters.

Sarah Jane Bess presents her contentions in three aspects: First, that respondents Peters, having been adopted by Madeline, are not “issue”; secondly, that the construction of the will must avoid partial intestacy; and thirdly, that the anti-lapse statute, § 474.460, RSMo 1969, applies because Madeline Peters was not a relative of testator, hence the Peters, because of the lapse of the devise to Madeline, cannot take her share. Sarah Jane concludes that she “takes the entire residuary estate, or at worst, if the Peters are ‘issue’ [she] takes ¾ and the Peters divide of the residuary estate.” As to the contention that the adopted children are not “issue” as that term is used in the will, Sarah Jane adopts the reasons presented in the brief of Jennie Trantham and Helen Reagan. The matter of whether respondents Peters, having been adopted, are “issue” will first be discussed.

As noted, the will was executed on June 26, 1943. It is the “general rule that whether an adopted child is embraced within the meaning of a described class of beneficiaries in a will is governed by the law in force at the time the will or other instrument was executed. (Citing cases and authority.)” First National Bank of Kansas City v. Sullivan, 394 S.W.2d 273, 281[7] (Mo.1965), and cases and authority there cited. At the time of the execution of the will, and prior to the 1947 amendment to the adoption statute (now § 453.090, RSMo 1969), the Adoption Act of 1917 was in force (L.1917, p. 194). The 1917 Act provided, in essence, that all adopted children shall take, under intestate succession, as would a natural born child, unless the property is expressly limited to “heirs of the body.” [The present statute, § 453.090, extends the inheritance and taking rights to property limited expressly to heirs of the body of parents by adoption.] Cases construing the 1917 Act as to the effect of adoption are these: St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685 (1934), where the testator made his will and died a year later, leaving a life estate to his children with remainder to their “heirs at law.” Eleven years later a son adopted his wife’s two sons by her previous marriage. The testator’s daughters contended that he intended to limit the remainder to those of his blood, and not to strangers. The court allowed the adoptive children to take their share of the remainder, saying that if the testator “did not want an adopted child to have any of his property he could have easily provided for such contingency in his will by expressly limiting his property to go to the bodily heirs of his son, but he did not do so.” Loe. cit. 76 S.W.2d 689[7], In Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (1936), James Brock, who died in 1915, devised land to his son, Samuel, “ ‘to have and to hold, during his natural life and after his death to go to his heirs.’ ” Samuel and his wife, 2½ years before his death, adopted 43 year old Frances' Hickey by judicial decree. Frances deeded the land to her mother, Nora, the plaintiff, by warranty deed prior to Samuel’s death, and by quit-claim deed thereafter. Defendants contended that during the life of James Brock, the law was that the adopted child did not inherit the estate of any member of the adopting family, other than the adopting parent, and so did not inherit the estate of the ancestors or collateral kin of the adopting parent. It was held that Frances Hickey was an “heir” of the life tenant and took the remainder as such, the court stressing the difference between a devise to the testator’s heirs, and a devise to the heirs of someone else. More directly in point is Kindred v. Anderson, 357 Mo. 564, 209 S.W.2d 912 (1948). There the testatrix died in 1900, a little over two years after executing her will. The will provided that “in the event that [a son] shall die without issue then the whole of my said property shall be divided equally among all of the above children.” In 1934, the son adopted his wife’s daughter by a previous marriage, and the son died in 1946, having outlived the other children of testatrix who were mentioned in the will. A nephew of the son brought the action to quiet title and for partition against the son’s widow and adopted daughter contending that the defeasance clause “9” which provided that if the son die without issue meant blood issue or heirs of his body, whereas he left only his adopted daughter. The court noted, 357 Mo. at page 572, 209 S.W.2d at page 918[6 — 9], citing cases, that “ ‘The word “issue” as used in wills is an ambiguous term’ ”, and considered all of the circumstances in existence at the time of execution of the will, and held, page 920[15, 16], “We think there was sufficient evidence on the first branch of the case to show the testatrix intended that the survival of William by a child, either natural born or adopted, or a lineal descendant there-through, would vest the unconditional fee title in him. Specifically, we hold Beulah Timberlake was William’s ‘issue’.” In this connection the court noted at page 916 that Beulah was the son’s “issue” at the time of his death because she had been adopted in 1934 under the liberal provisions of Sec. 9614 [Laws Mo.1917, p. 134]. See also St. Louis Union Trust Co. v. Greenough, 282 S.W.2d 474 (Mo.1955), where, in construing a 1908 will to determine whether an adopted child was a descendant of testator’s granddaughter, and in ruling for the adopted child, the court noted that the testator specifically devised part of his estate of strangers to his blood, and therefor clearly demonstrated that he did not intend for only his blood relatives to take, and also there was nothing found in the will indicating an intention to exclude adopted children. See also Stifel v. Butcher, 487 S.W.2d 24 (Mo.1972), allowing adopted children to take under an 1897 trust under the designation of “descendants”, following the Greenough rule allowing their inclusion since the language used was not sufficiently expressive of an intention to exclude them. Here the devise to Madeline Peters, a non-relative of testator, indicated a clear intent that the estate should not be limited to blood relatives, and there was no expressed intention to exclude adopted children.

In this case, the evidence shows that both the Peters, the adopted sons of Madeline Peters, had been adopted when testator made his will, and that he knew the sons. Dr. John F. Townsend testified that he grew up with John and George Peters, and that through them he became acquainted with testator, who, after the Peters grew up, would always inquire how they were doing. Testator kept pictures of the two sons on display in his home. George Peters testified that he and his brother began visiting testator at an early age and that they continued visiting him regularly at his home and their own. They called him Uncle Rice. Testator gave U. S. savings bonds to all three of George’s children. Photographs of the two sons with testator were in evidence, taken from the time they were small until testator’s death. There was also a movie of the three. Under the foregoing cases, these facts showing that the Peters were well known to testator, whose will was executed after they were adopted, and the liberal provisions of the 1917 Adoption Act that “Said child shall thereafter be deemed and held to be for every purpose, the child of its parent or parents by adoption, as fully as though born to them in lawful wedlock. Said child * * * shall be capable of inheriting from, and as the child of said parents as fully as though born to them in lawful wedlock”, there can be no doubt that the Peters are “issue” of Madeline Peters. The contentions of Sarah Jane Bess, Jennie Trantham and Helen Reagan as to this matter are ruled against them.

Appellants Trantham and Reagan contend that the testator intended to die intestate if all four of the specifically named devisees [Madeline Peters, Ruth Jordan, Chloe Jordan and Vera Wiedmeyer] predeceased him, which they did, and that the testator’s will required at least one of them to survive him. The will here deals with all the residuary estate by its Item V in the event testator’s wife should predecease him, which was the fact. In that posture the rule is that testator will be presumed to have intended to die testate. Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348, 352[9] (1919); Shaw v. Wertz, 369 S.W.2d 215, pages 218, 219, and cases there cited (Mo.1963). It is also true that the duty of a court in construing a will is to determine the intent of the testator, § 474.430, RSMo 1969; St. Louis Union Trust Company v. Hill, 336 Mo. 17, 76 S.W.2d 685, 686[5] (1934); Shaw v. Wertz, supra, loc. cit. 369 S.W .2d 217[2, 3] Adverting to the will it is apparent that testator gave one-fourth each to the above specifically listed persons. Then, first as a contingency, he provided that if any of them shall have died in his lifetime leaving living issue at his death, such issue shall take the share which his or her parent would have taken had they survived. As above ruled, the adopted children of Madeline Peters were her issue who survived the testator. Chloe and Ruth Jordan both predeceased testator without issue. In that event, another substitutionary gift over was made to the issue of the predeceased persons named in Item V who did survive him. Thus, testator did not intend to die intestate unless all four of the specifically named devisees and their issue predeceased him. Also, as is evident, testator left his sister, Jennie Trantham, out of the will, and gave to Helen Reagan, his niece, only $1.00, thus evidencing an intent to exclude her from substantial participation in the estate. From wording of the entire will, it must be held that testator intended that the issue surviving him of the four named persons who predeceased him should take a per stirpes distribution of the estate, that is, by representation of their parent; “children take among them the share which their parent would have taken, if living.” 3 Bouvier’s Law Dictionary, page 2558. This disposes of the alternative contentions of Sarah Jane Bess that she is entitled to all the residuary estate, or that she takes three-fourths and the Peters take one-fourth. By a per stirpes distribution, Sarah Jane Bess takes one-half through her mother, Vera Wiedmeyer, and the two Peters children take the other one-half through their adoptive mother, Madeline Peters, as ruled by the trial court.

Sarah Jane Bess makes the further contention that the anti-lapse statute, § 474.460, operates to cut out the Peters because their adoptive mother, Madeline Peters, was not related to testator and predeceased him. Ordinarily, that would be true, but it is a general rule also that “ * * * a testator may, by express provisions of his will, prevent a lapse in case of the death of a legatee or devisee before the testator * * *96 C.J.S. Wills § 1216a, p. 1053. And he may do this “ * * * by the expression of such intention and a provision for the substitution or succession of some other recipient in case of the intermediate death of the first named, donee.” 96 C.J.S. Wills § 1216b, p. 1053. See also 80 Am.Jur.2d, Wills, § 1665, p. 721. Here, the testator has made an express substitution of the issue of his named beneficiaries, thus showing an intent that the gift should not lapse.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge,

text:
    V. S. DiCARLO CONSTRUCTION CO., INC., Respondent, v. STATE of Missouri, Appellant.
    No. KCD 29121.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.
    John D. Ashcroft, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for appellant.
    Ernest H. Fremont, Jr., Wm. Dirk Van-dever, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge,

Presiding.

Action by contractor to recover from state for removal of rock under construction contract. Upon submission of cause on stipulated facts, trial court found for contractor. State has appealed.

This controversy arises out of the construction for the State of Missouri of an office building for the Adjutant General and an Emergency Operations Center in Jefferson City. V. S. DiCarlo Construction Co., Inc. (“DiCarlo”) submitted a base bid with alternates in the amount of $676,909 to act as general contractor for the project. The DiCarlo bid was the lowest responsive bid and on December 5, 1967, a contract was entered into between the state and DiCarlo.

DiCarlo entered upon the work. In excavating for the foundation, basement and sub-basement of the building, rock was encountered. Contractors had been advised that some rock excavation would be necessary. The state took 10 core borings in the construction site “to enable the eventual general contractor to ascertain the nature of the soil and rock to be excavated from the site of the building. The results of the test borings (found within the specifications) were given to the architect who transposed the boring locations on the drawings. Additionally, the architect indicated on the drawings a sub-basement floor elevation of 572 feet 7.5 inches. The architect also drew on the drawings profiles of the interpretations of the substances which would be encountered and have to be excavated, and the interpolations of the various elevations at which they would be found between the various core test borings.”

A note appeared on the “drawings/plans,” as follows:

“Some rock excavation will be necessary to complete the excavation for the new building. Absolutely no blasting will be permitted by any of the trades for excavation for any work of the contract. The plans and specifications show the assumed elevations for rock bearing strata suitable for footings. The contractor shall include in his proposal all earth and rock excavation required to these given elevations in his base proposal, with all labor and materials required to verify the suitability of the rock bearing strata as noted on Sheet S6 General Notes, Note No. 13. Should further rock or earth excavation be later requested, or should suitable bearing rock be found to exist at a higher elevation than shown— unit prices for add or credit to the contract price shall then prevail. Such unit prices are to be submitted with the proposal.”

The contract contained the following provision on unit prices:

Add Deduct
“1. For rock excavation requiring drilling and jackhammering as per Division 02 Section B02 of the specifications — per cubic yard $200.00 $10.00
“2. For earth or loose rock excavation by machine per cubic yard 2.50 .25
“3. For earth or loose rock excavation by hand per cubic yard 5.50 1.00”

The excavation portion of 02B 02 read as follows:

“EXCAVATION: This contractor shall study the test borings log and elevations of the new building as shown on the drawings to ascertain the nature of soil and rock to be excavated from the site of the building. For purposes of bidding the Contractor shall submit his base proposal as herein outlined.
“Remove all material now in place as required to excavate including working space for sub-basement floor slab to an elevation 4" below bottom of slab. Further remove rock or material found in place to at least the side of wall or column footings, elevator pit, or depressed floor area bases. Footings are to be placed on rock suitable for the loads to be supported. The approx, elevation for these footing bearing levels to be based on the elevations shown on the drawings.
“A jackhammer hole shall be drilled at least 5' below the bottom of each footing excavation to detect any voids of clay layers that may exist beneath the footing. If such clay layers or pockets are encountered the overlying rock and clay shall be removed to a clean rock surface at a greater depth.
“Rock excavation as required for unit prices shall be defined as rock requiring drilling and jack hammering before removal can be achieved, in footing pits or similar excavation beyond depths shown on the drawings. Loose Rock or clay layers within or between rock strata shall be considered as earth removal in application of unit prices. Unit prices for earth excavation by hand or machine when required beyond depts (sic) shown on drawings shall be provided tinder the unit prices section of the bidding forms.
“The mechanical and electrical contractors shall submit unit prices for rock and earth excavation for trenches, pits, etc. that may be required for extra work not now shown on drawings, or for use should rock be encountered in Sanitary Sewer main trench to be dug to South of building. All rock or earth excavation within building are and as shown on the drawings, shall be included in Base Proposal Bid submittal.
“A unit price for rock excavation required beyond indicated depths shall be provided under the unit prices section of the Bidding Forms. Should suitable rock for bearing be found above the elevation given on the drawings, a unit price for rock excavation to be credited to the Owner shall govern. This unit price also to be submitted in the Bidding Forms.
“All soft, broken and easily excavated rock material should be removed from the excavation prior to the placement of footings.”

As computed from the drawings and specifications (“borings”), 904 cubic yards of solid rock excavation would have been required. DiCarlo actually removed 1850 cubic yards. DiCarlo made demand of the state for the removal of 946 cubic yards of rock at $200 per cubic yard. The state rejected the claim but did pay DiCarlo $5856 for rock excavation in footings below the sub-basement floor elevation.

DiCarlo filed suit against the state on June 29, 1970. Its petition was in six counts. Count I sought recovery of $244,-800, based on the unit price of $200 per cubic yard for rock excavation beyond that shown on the plans. Count II alternatively sought recovery of the same amount on the grounds that the representations of the plans and specifications as to rock required to be removed were false and misleading. Count III sought recovery of $3300 withheld by the state as liquidated damages. Count IV sought $7067 for work required of plaintiff beyond the contract. Count V sought $6144 of repairs necessitated by acts of other contractors. Count VI sought $26,-433.84 for additional expenses incurred by reason of a change in the sequence of the work, directed by the state.

The state moved to dismiss the petition on the grounds of failure to state a claim. The doctrine of sovereign immunity was the basis of the motion. The trial court sustained the motion. The contractor appealed. The Supreme Court reversed the judgment of dismissal. V. S. DiCarlo Construction Co., Inc. v. State, 485 S.W.2d 52 (Mo. 1972).

Upon remand the state moved to dismiss the petition on the grounds that plaintiff had not exhibited its claim “within the limitations of Section 33.120 RSMo” (1969). The motion was overruled on March 29, 1974.

The state thereafter filed no responsive pleading. In July, 1975, the plaintiff moved for a judgment based upon the state’s failure to file a responsive pleading.

Apparently prodded by this motion, the state did enter into a stipulation with plaintiff which was filed April 8, 1976, and which became the basis of the submission of the cause. According to the stipulation, DiCarlo incurred additional job expense of at least $179,740, computed on the basis of 946 cubic yards of rock at $190 per cubic yard. The parties stipulated that, if the court found for plaintiff for additional rock excavation, it should find for plaintiff for $10,800 for overhead costs and miscellaneous price increases not included in the claim for removal of rock. They also stipulated that upon finding in favor of plaintiff on the principal claim, plaintiff would also be entitled to judgment of $3300 withheld as liquidated damages.

Upon the basis of the submission and briefs of the parties, the trial court entered judgment for plaintiff in the amounts just stated.

In his memorandum the court considered the state’s limitation defense. The court pointed out that the stipulation stated that plaintiff had made timely demand upon the state for the extra work. The court noted that the stipulation contained no reference to how or to whom the claim was made. The court concluded that the suit had been filed within the Statute of Limitations.

The court further found that in the advertisement for bids and the specifications, the state had “indicated what type of material plaintiff would encounter in the excavation * * Instead of the type shown, solid rock was encountered, requiring excavation of 946 cubic yards of solid rock. The court found that the contractor was entitled to rely upon the state’s representation as to the type of material to be encountered and that plaintiff was entitled to recover .for the extra rock. The court also found that the'contract was susceptible to the construction that the provision for extras would cover the rock in question.

On its appeál the state first contends that the trial court “erroneously failed to dismiss plaintiff’s • claim * * * when such claim had not been submitted in the manner and within the time prescribed by §§ 33.120, et seq., RSMo.”

Section 33.120, RSMo 1969, provided:

“Persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the comptroller, for his approval, within two years after such claims shall accrue, and not thereafter.”

In its brief here on this point, the state has repeated, with some minor additions, the argument advanced by it in the trial court. In fact its brief is largely a copy of the memorandum submitted to the trial court. The difficulty with this approach is that it ignores the trial court’s basis for finding against the state on this issue. The state’s position was rejected by the trial court because there was nothing before the trial court to show the factual basis for the state’s claim. The appellant makes no effort here to demonstrate that such conclusion by the trial court was erroneous. In fact, the state, after the judgment had been entered, sought a hearing in which it might present evidence that plaintiff’s claim had not been submitted to the comptroller. The trial court declined to reopen the matter. No complaint has been voiced against that action.

Inasmuch as the state has not shown that the trial court’s ruling on the issue was erroneous, this assignment of error is without merit.

Appellant’s second assignment is that the circuit court erroneously “applied the unit-price provisions of the contract to excavation in the main excavation area of the project” because the unit price for extra rock excavation applied only to excavation for footings and the contract for the main excavation area was a fixed-price contract.

This point ignores the trial court’s finding of liability on the basis of representation. At the best, it goes only to the alternative theory of plaintiff, accepted by the trial court along with the representation theory, of recovery based upon the provisions of the contract for extra work. In its argument, the appellant refers to some representation cases, but the court’s factual findings on the representation issue are not questioned. Appellant states that the specifications did not estimate the rock in quantitative terms. However, appellant stipulated that, according to the rock elevations which the state “transposed” on the drawings, the rock to have been excavated was 904 cubic yards. The state further stipulated that respondent’s bid “was calculated and made in reasonable reliance on the representations made in the general drawings/plans and specifications prepared by the state and furnished to DiCarlo.” The specifications required bidders to study the test borings log and elevations “as shown on the drawings to ascertain the nature of soil and rock to be excavated * *

Appellant’s burden was to show, in the face of the stipulated facts, that the trial court’s conclusion based on the representation count was not supported by the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). A mere assertion to that effect is not sufficient.

Since appellant has failed to demonstrate that the trial court’s finding on the representation count was erroneous, there is no need to consider the argument against the finding that the contract by its terms required the state to reimburse the contractor for the additional rock in accordance with the extra work provisions of the contract.

Judgment affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    Daniel R. WALKER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29179.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      Robert E. Hart, Kansas City, Robert G. Duncan, Duncan & Russell, Gladstone, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Crim. Div., Jefferson City, for respondent.
    Before SOMERVILLE, P. J„ and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Daniel Ray Walker was found guilty of rape, sodomy per os and sodomy per anum by a Platte County jury. Walker was charged under the second offender act and the trial judge fixed his punishment at life imprisonment for each offense, said sentences to run concurrently. Failing to obtain relief by way of direct appeal, State v. Walker, 484 S.W.2d 284 (Mo.1972), Walker resorted to Rule 27.26. The matter is now lodged in this court by reason of the trial court’s denial of post-conviction relief to Walker following an evidentiary hearing.

Numerous reasons postulated by Walker in a “shotgun” manner in his Rule 27.26 motion for post-conviction relief have been winnowed to one basic point on appeal — ineffective assistance of counsel. According to Walker two incidents demonstrate such gross ineptness on the part of counsel during the underlying criminal trial as to render his assistance totally ineffective. First, in permitting Walker to testify in his own behalf as doing so was tantamount to a “judicial confession”, and second, in failing to exercise reasonable diligence regarding investigations of the prosecutrix’s background for purpose of impeachment.

In taking legal measure of the performance of counsel vis-a-vis a charge of ineffective or inadequate representation, certain “benchmark” principles have evolved. Stripped of all unnecessary rhetoric, what in retrospect appear to be mere errors in judgment do not brand counsel as incompetent, Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974), and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973), and every review ultimately focuses on whether the acts of counsel have been such as to result in a substantial deprivation of accused’s right to a fair trial, Aikens v. State, 549 S.W.2d 117, 121 (Mo.App.1977), and Nelson v. State, 537 S.W.2d 689, 695 (Mo.App.1976).

The first prong of Walker’s claim of ineffective assistance of counsel deals with his contention that counsel should not have permitted him to take the stand and testify in his own behalf because doing so was the equivalent of a judicial confession that he was guilty of the charge of sodomy per os. At the hearing on his Rule 27.26 motion Walker testified that at the underlying criminal trial his testimony in connection with the sodomy per os charge was as follows: “That when we started to take her clothes off she went down and put my penis in her mouth and it was there for four or five seconds and I pulled her up and told her she didn’t know what she was doing”. Walker implies that he gave an identical version of these facts to counsel prior to trial. Walker rationalizes that his pre-trial version of the facts and his trial testimony can only be construed as evidence of mutual consent on the part of him and the prosecu-trix to engage in an act of sodomy per os, and as consent on his part rendered him criminally liable as an accomplice, 81 C.J.S. Sodomy, § 7, p. 655, while consent on the part of the prosecutrix did not constitute a defense to him, State v. Katz, 266 Mo. 493, 181 S.W. 425 (1916); State v. Pfeiffer, 277 Mo. 202, 209 S.W. 925 (1918); State v. Villinger, 237 S.W.2d 132 (Mo.1951), and State v. Shumate, 516 S.W.2d 297 (Mo.App.1974), his' testimony was so inculpatory that it amounted to a judicial confession.

Walker is prone to ignore the testimony of counsel at the Rule 27.26 evidentiary hearing. Its consideration is absolutely necessary in order to place the first prong of Walker’s charge of ineffectiveness of counsel in proper perspective. At the Rule 27.26 evidentiary hearing counsel testified that he explained the “elements” of all three of the charged offenses to Walker and the “pitfalls” of Walker testifying in his own behalf, but that Walker wanted to and did freely and voluntarily take the stand and testify. Counsel further testified that on several occasions prior to the time that Walker took the witness stand, the various charges were discussed at length between himself and Walker at which time Walker, as recounted by counsel, related the following fact with respect to the charge of sodomy per os: “Fact of the matter is, his conversation to me was that while they were fondling one another in this automobile that she went down and put her mouth over his penis and that startled him and he immediately pushed her away, he was not expecting that, that is consistently what he told me about that”. The version of facts related by Walker to counsel prior to trial consummately refuted any thought that Walker knowingly or voluntarily participated in an act of sodomy per os. Quite the opposite, Walker’s version of the facts, as related to counsel prior to trial, demonstrated that Walker was an unwilling participant and that he quickly terminated the prosecutrix’s unnatural and perverse advances. The trial judge who presided over Walker’s Rule 27.26 evidentiary hearing evidently chose to believe counsel’s testimony, as was his prerogative. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971).

An unwilling participant in an act of sodomy is not an accomplice. State v. Crawford, 478 S.W.2d 314, 319 (Mo.1972). As Walker’s pre-trial version of the facts to counsel absolved him from either active or passive participation in an act of oral sodomy, and, in fact, demonstrated that he was unwillingly victimized by the prosecutrix’s unnatural and perverse aggressiveness, counsel cannot be branded as inept, inadequate, or ineffective for permitting Walker to take the stand in his own behalf. The trial was essentially a one on one confrontation — the prosecutrix’s word against Walker’s word. Counsel had no forewarning or inkling that Walker’s trial testimony would vary or differ in any respect from his pretrial recitation of the facts which was wholly exculpatory regarding all three charged offenses. Viewed in light of the unique circumstances presented, this court has been unable to ascertain any act of omission or commission on the part of counsel which could reasonably be held responsible for Walker’s claimed testimonial confession. If such occurred, Walker himself must bear the responsibility for its occurrence. Blame and responsibility for adverse trial incidents cannot always be laid at the feet of counsel.

The final prong of Walker’s claim of ineffective assistance of counsel deals with his contention that counsel failed to exercise proper diligence in investigating the prosecutrix’s background for information which could have been used for impeachment purposes. According to Walker, he advised counsel that he had information which led him to believe that the prosecutrix had undergone two abortions but that counsel made no effort to verify such or use it for impeachment purposes during his cross-examination of the prosecutrix. At the Rule 27.26 evidentiary hearing Walker’s counsel denied that Walker ever suggested or mentioned that the prosecutrix had previously undergone two abortions. Again, the trial judge, as was his right, obviously chose to believe counsel’s testimony as opposed to Walker’s testimony. Shoemake v. State, supra. Assuming, arguendo, that Walker informed counsel of the two purported abortions and counsel failed to follow through with an appropriate investigation, it is impossible to conceive how Walker was prejudiced in any manner because the prosecutrix, both on direct and cross-examination at the underlying criminal trial, freely admitted to having previously engaged in frequent acts of intercourse with other males. Resultant prejudice is the sine qua non of ineffective assistance of counsel when the charge is predicated on failure to investigate. Stewart v. State, 542 S.W.2d 544, 546 (Mo.App. 1976). It should also be noted that a strong presumption obtains that counsel was competent and a Rule 27.26 movant bears the burden of proving otherwise. Haynes v. State, 534 S.W.2d 552, 554 (Mo.App.1976). As pointed out in Haynes, at 554, “[t]he determination of whether this burden has been met by movant is a two-step process . [t]o prevail, movant must show first the failure of counsel to perform some duty, and secondly, that this failure actually prejudiced the defense.” The prosecutrix’s freely admitted acts of prior sexual indiscretion anent Walker’s burden of showing that he was prejudiced by counsel’s failure to investigate the two purported abortions augurs against Walker and insulates the judgment entered by the trial court from being stigmatized as “clearly erroneous”. Rule 27.26(j). Parenthetically, Walker throughout has assumed the admissibility of evidence pertaining to the two abortions purportedly undergone by the prosecutrix— an assumption of dubious validity. Although case law at the time of Walker’s underlying criminal trial permitted attacks upon the prosecutrix’s character for purposes of impeachment by way of evidence that her general reputation for morality and chastity was bad, evidence of specific acts of immorality or unchastity was legally taboo. State v. Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974); and State v. Ruhr, 533 S.W.2d 656, 659 (Mo.App.1976).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Harry A. HEIDEN and Linda Janell Heiden, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Respondent.
    No. KCD 29195.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      John C. Milholland, Harrisonville, for plaintiffs-appellants.
    Douglas Stripp, James F. Duncan, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., WASSER-STROM, J., and HANNA, Special Judge.
   WASSERSTROM, Judge.

Plaintiffs seek damages for fraud and deceit allegedly practiced upon them by defendant. Defendant moved to dismiss plaintiffs’ petition on the ground that it failed to state a claim upon which relief could be granted. The trial court sustained that motion with leave for plaintiffs to amend within 30 days. Plaintiffs declined to amend, and the trial court thereupon entered final judgment of dismissal with prejudice. Plaintiffs appeal. We affirm.

Plaintiffs’ petition can be summarized as follows. In a prior lawsuit, plaintiffs sought damages against defendant for personal injuries and loss of services arising from the alleged defective design of an automobile manufactured by defendant. Extensive depositions were taken in that personal injury action in the states of Missouri, Iowa and Michigan. The various court reporters submitted their bills for costs totaling $2,339.30, which were paid by plaintiffs and which were spread of record on the books of the circuit court. On May 14, 1976, the parties agreed upon a settlement, and their respective attorneys signed and filed with the circuit court a stipulation for dismissal “at defendant’s costs.” Defendant then remonstrated that the amount of costs reflected on the records of the circuit clerk were in excess of the amount permitted by statute, and at the insistance of defendant, the court administrator calculated the amount of deposition costs properly to be allowed under the statute and assessed those costs at $1,295.10.

Plaintiffs’ petition further alleges that no competent reporter is willing to handle depositions for the amount of the statutory scheduled fees; that all such reporters customarily charge higher fees and will not perform their services for the amounts prescribed by the statutory schedule; that there is a custom and practice for such higher charges by the reporters to be certified as deposition costs and to be taxed as court costs in the circuit court of Jackson County; and that when settlements are made and in negotiations for settlement the phrase “court costs” or “costs” means, in addition to the statutory prescribed fees for depositions, the additional amounts which are customarily charged by reporters. Plaintiffs go on to allege that they relied upon the custom and practice described and upon the belief that defendant also relied upon the said custom and practice; that defendant knew that plaintiffs so relied and intended that plaintiffs should believe that the phrase “at defendant’s costs” was being used in the sense of the said custom and practice. Plaintiffs then further allege that by reason of the foregoing, defendant represented to plaintiffs that defendant had a present intention of performing the settlement contract in the sense of the custom and practice described, but that said representation was false in that defendant did not intend to pay the full $2,339.30 billed by the reporters, but instead intended to pay only according to the lower statutory schedule (eventually computed by the court administrator to be $1,295.10). Plaintiffs conclude their petition by alleging the actions described to have been fraudulent, for which they pray $1,000,000 compensatory damages and $5,000,000 punitive damages.

The sole question for determination is whether the allegations thus summarized state a cause of action for fraud. Plaintiffs argue that they do within the doctrine of Thieman v. Thieman, 218 S.W.2d 580 (Mo.1949); Dillard v. Earnhart, 457 S.W.2d 666 (Mo.1970); Brennaman v. Andes & Roberts Brothers Const. Co., 506 S.W.2d 462 (Mo.App.1974); and Klecker v. Sutton, 523 S.W.2d 558 (Mo.App.1975).

Essential to that argument is a showing that defendant did contract in accordance with the custom and usage alleged by the plaintiffs; for if defendant never bound itself to pay pursuant to the alleged custom, then there can be no implied representation to that effect upon which to base any fraud. As stated by plaintiffs themselves in their reply brief: “The question is whether respondent could and did agree (via the custom and practice) to pay the costs actually incurred by the appellants;” and as they state in another place in the same brief, “The question is * * * whether the custom and practice to pay the actual costs of depositions * * * was embodied in the settlement agreement * * *.” Stating the problem slightly differently, the basic question is “what did the parties agree?” This narrows down to an inquiry as to what the parties meant by the term “costs,” and specifically whether that term could be expanded through usage and custom to include something more than that included in the statutory schedule.

Costs did not exist at common law, and their allowance is a creature of statute. McClue v. Epsten, 492 S.W.2d 97 (Mo.App. 1973). The statute in this state which provides for deposition expenses to be allowed as costs is Section 492.590. That section contains a precise formula specifying just how deposition costs are to be computed.

The employment in the May 14,1976 agreement of the term “costs,” without any further explicit definition, adopted by reference the statutory formula contained in Sec. 492.590. The rule in this respect is that statutes in force at the time and place of making a contract which affect its validity, performance, discharge, or enforcement, enter into and form a part of it as if they were expressly referred to or incorporated within the terms of the contract. Swabey v. Boyers, 274 Mo. 332, 203 S.W. 204 (1918); Lazare v. Hoffman, 444 S.W.2d 446 (Mo.1969); Curators of Central College v. Rose, 182 S.W.2d 145 (Mo.1944); Union Pacific Railroad Co. v. Kansas City Transit Co., 401 S.W.2d 528 (Mo.App.1966); Lux v. Milwaukee Mechanics’ Ins. Co., 221 Mo.App. 999, 295 S.W. 847 (1927); De Hart v. School Dist. No. 39, St. Louis County, 214 Mo.App. 651, 263 S.W. 242 (1924); 17 Am.Jur.2d Contracts, Sec. 257, p. 654. A case which applied the rule under circumstances quite analogous to the one at bar is Webb-Kunze Const. Co. v. Gilsonite Const. Co., 281 Mo. 629, 220 S.W. 857 (1920). In that case, the parties disputed the proper manner in which to measure the amount of certain excavation work. Plaintiff relied upon a statutory formula for measurement. The court held that the statutory method of measurement was incorporated into the contract as a matter of law, absent any contrary provision of the parties. The opinion holds at 220 S.W. l. c. 859:

“The ‘cubic yard’ mentioned in the contract is controlled by the statute; it is a statutory cubic yard.
“The statute necessarily applies to contracts for making earth excavations, and must be read as a part of every contract of that character. Isenhour v. Barton County 190 Mo. 163, loc. cit. 173, 88 S.W. 759; Reed v. Painter, 129 Mo. 674, loc. cit. 680, 31 S.W. 919; Zellars v. Surety Co., 210 Mo. 86, loc. cit. 92, 108 S.W. 548. The rates expressed in the contract must be considered in connection with the statute. There is not a word in that part of the contract indicating how the work shall be measured or what shall constitute a cubic yard. It relates only to the price to be paid after the measurement is made. The statute defines what is meant by a cubic yard * *

The plaintiffs, nevertheless, contend that parties may agree upon a manner of computing costs different from the statutory formula and they cite in support of that contention Schawacker v. McLaughlin, 139 Mo. 333, 40 S.W. 935 (1897) and Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39 (Mo. banc 1976). It is to be noted, however, that Schawacker dealt with a situation where the parties had agreed expressly for the taxation of an item as costs which would not otherwise have been covered; and the generalized statement contained in Groves should be understood as likewise referring to an agreement of the parties expressly including into costs an item not covered by statute. That situation where the parties agree expressly must be carefully distinguished from the situation at hand where there was no express agreement expanding the concept of “costs” beyond the statutory limits. What plaintiffs are attempting to do here, is to expand the term by implication through resort to an extrinsic aid to construction, namely custom and usage.

Under the well established law of this state, custom and usage cannot be used to contradict the plain meaning of a written contract. A leading case on this subject is State ex rel. Chicago, M. & St. P. Ry. Co. v. Public Service Commission, 269 Mo. 63, 189 S.W. 377, l. c. 379 (banc 1916) which sets forth a strong statement of the rule that custom and usage is admissible to remove ambiguities but not to modify or contradict what is manifest:

“Usage or custom cannot properly be invoked to aid in the contention of the appellants. The purpose of the contract between the shipper and the carrier is manifest from its terms. While general usage may, in a particular case, be shown to remove ambiguities and uncertainties, it cannot be employed to destroy, modify, or contradict what is otherwise manifest, nor make a contract where there is none; and hence its application in this case is unauthorized.”

To the same effect: Martin v. First Nat. Bank in St. Louis, 358 Mo. 1199, 219 S.W.2d 312 (1949); Harbaugh v. Ford Roofing Products Co., 281 S.W. 686 (Mo.1926); Kimball v. Brawner, 47 Mo. 398 (1871); Garrett v. American Family Mutual Ins. Co., 520 S.W.2d 102 (Mo.App.1975); Moser v. Lower, 48 Mo.App. 85 (1892); Heffernan v. Neumond, 198 Mo.App. 667, 201 S.W. 645 (1918); Kalberg v. Gilpin Company, 279 S.W.2d 177 (Mo.App.1955); Ryan Equipment Company v. Brewer, 347 S.W.2d 430 (Mo.App.1961); Jordan v. Daniels, 224 Mo.App. 749, 27 S.W.2d 1052 (1930); 25 C.J.S. Customs and Usages § 30a, p. 158; 21 Am.Jur.2d Customs and Usages Sec. 23, p. 697.

It is true that Restatement of the Law, Contracts Sec. 246, comment a, p. 346, states that the application of custom and usage is not confined to words used ambiguously and that “[a] usage may show that the meaning of a written contract is different from an apparently clear meaning which the writing would otherwise bear.” This liberal rule is supported by Williston on Contracts, 3d Edition, Vol. 5, Sec. 650, p. 20, and Vol. 3 Corbin on Contracts, § 555, p. 231. The statement that the admissibility of custom and usage is not limited to ambiguities also finds some support in a few of-the older Missouri cases: Evans v. Western Brass Manuf’g Co., 118 Mo. 548, 24 S.W. 175 (1893); Landau Grocery Co. v. Hart, 223 S.W. 793 (Mo.App.1920). See also Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629, 78 S.W. 1014 (1904). However, the majority as well as the more recent of the Missouri cases state a more narrow view and restrict application of custom and usage to only those contracts which are ambiguous. State ex rel. Chicago, M. & St. P. Ry. Co. v. Public Service Commission, supra; Harbaugh v. Ford Roofing Products Co., supra; Kimball v. Brawner, supra; Pavey and Orr v. Burch, 3 Mo. 447 (1834); Garrett v. American Family Mutual Ins. Co., supra; Kalberg v. Gilpin Company, supra; Heffernan v. Neumond, supra; Jordan v. Daniels, supra.

It is to be noted also that even Sec. 246 of the Restatement states that a usage may have the effect of adding provisions in accordance with the usage only if the added provision is “not inconsistent with the agreement or manifestations of intention.” Note also that Evans states that a usage may not introduce “something which is repugnant to or inconsistent with the contract,” and Snoqualmi recognizes the rule “that usage cannot be permitted to control the terms of a special contract by introducing something which is repugnant to or inconsistent with the contract.”

To permit consideration of the custom and usage alleged by plaintiffs in this case would be to introduce something which is repugnant to and inconsistent with the settlement contract of May 14, 1976. As already demonstrated, that contract incorporated by force of law the statutory formula for computing deposition costs. To allow the different formula contended for by plaintiffs would be in flat contradiction to the statutory formula. A case involving very much the same problem refused to permit such a contradiction. Thus in Perlman v. First National Bank of Chicago, 15 Ill.App.3d 784, 305 N.E.2d 236, l. c. 244 (1973), appeal dismissed 60 Ill.2d 529, 331 N.E.2d 65 (1975), the issue was whether a bank was charging interest in excess of a contract rate expressed as being “per an-num.” The bank calculated the daily interest on the basis of a 360-day year, which it claimed to be in accordance with banking custom and practice. Plaintiff resisted application of the alleged custom, arguing that the statutory definition of “a year” controlled. The court rejected the bank’s defense in the following terms:

“The general rule provides that ‘if the terms or provisions of a written contract are in any way uncertain or ambiguous, parol evidence of a custom or usage is admissible to explain them or aid in their interpretation and construction. Where the meaning of such terms is unambiguous and free from doubt, a custom or usage cannot be proved to explain the terms of provisions.’ * * * The law, including statutes, existing at the time and place of the making of a contract is deemed a part of that contract to the same extent as though expressly referred to or incorporated in the contract. * * The contract in this case, therefore, depends upon the interpretation of the statute, and, once the trial court determines the legislative intent as expressed in the statute, the meaning of the contract is clear.”

Moreover, practical considerations affecting public policy strongly support a refusal to permit an alleged custom and usage to override the statutory formula. Deposition costs must be examined and taxed by the court clerk. Sec. 514.330. An improper taxation of costs by the clerk exposes him to penalty for committing a misdemeanor. Sec. 514.320. By holding the statutory formula controlling, the circuit clerk is given the benefit of a dependable guide for his action. On the other hand, to permit a modification of what constitutes permissible costs by alleging a different custom and usage would make for a very unsettled situation and would open vexing questions as to the following matters: the question of whether there is in fact a custom and usage as claimed; the question of just what items of expanded cost are to be included and the extent of allowability; and the question of whether each of the parties affected knew of the alleged custom and practice or were in possession of such facts as to create constructive knowledge.

Still a further factor is entitled to consideration. Let us assume that existing and controlling Missouri case law were to be liberalized so as to permit the term “costs” as used in the May 14,1976 settlement to be interpreted in the light of custom and usage. Even if there were to be such a change in contract law, it would be completely unfair to accuse defendant of fraud because it acted upon the law which existed at all times here pertinent.

The most that any relaxation of the rule in question should accomplish should be to open the door for a jury to find a contract on different terms than those for which defendant contends — but it would not authorize a jury to find that defendant practiced a fraud merely because it intended to perform pursuant to and in the light of legal principles then in force rather than in accordance with some new rules not yet adopted. This matter, however, need not be pursued for we have neither the inclination nor the authority to change the legal doctrines announced in the Missouri cases which control the interpretation of the settlement agreement here involved.

The trial court correctly ruled that the construction of the term “costs” as used in the settlement agreement is controlled by Sec. 492.590 and is not subject to contradiction by an alleged variant custom and practice. The judgment is therefore affirmed.

All concur.

      . The stipulation reads in full as follows: “The parties stipulate and agree that the Fifth Amended Petition and all claims therein are hereby dismissed with prejudice, at defendant’s cost, the entire subject matter thereof having been compromised and settled.”

      . All statutory references are to RSMo 1969.

      . Section 492.590 provides:
      “1. The costs and expenses of taking depositions, together with the fees of recording and copying the same, shall be taxed in favor of the party or parties praying [sic] the same, and collected as other costs in the suit or suits in which such depositions, or any part thereof, may be used.
      “2. The costs and expenses so taxed shall be certified by the stenographer or shorthand reporter taking the same and shall be limited as follows:
      (1)An attendance fee not to exceed the sum of three dollars per hour.
      (2) A transcription fee not to exceed sixty cents per twenty-five line page for taking and transcribing the original of said depositions, and the sum of twenty cents per twenty-five line page for each carbon copy thereof, said page to be approximately eight and one-half inches by eleven inches in size, with left-hand margin of approximately one and one-half inches, right-hand margin of approximately one-half inch; answer to follow question on same line when feasible; such page to be designated a legal page.
      (3) A fee of fifty cents for issuing a notarial subpoena.
      (4) A fee of fifty cents for each jurat.”


author: TURNAGE, Judge.

text:
    The TEMPLE BUILDING et al., Appellants, v. BUILDING CODE BOARD OF APPEALS OF the CITY OF KANSAS CITY, Missouri, Respondent.
    No. KCD 29365.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.
    Motion for Rehearing and/or Transfer Denied June 12, 1978.
    Application to Transfer Denied July 24, 1978.

      Rodger J. Walsh, Kansas City, for appellants.
    Aaron A. Wilson, City Atty., Edward L. Wurdack, Asst. City Atty., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

The City of Kansas City issued an order to the Temple Building to equip its passenger elevators with an interlock system. Temple appealed to the Building Code Board of Appeals of the City and on affirmance of the order there appealed to the circuit court. That court affirmed and Temple appeals.

Temple contends the order to equip its elevators was not supported by competent evidence, the ordinance is vague and unenforceable, the ordinance cannot be applied to existing buildings and elevators and § 292.050, RSMo 1969, has preempted elevator safety within state law to the exclusion of a city ordinance. Affirmed.

The City notified Temple on May 17, 1973, that Temple was required to provide all hoistway doors of passenger elevators numbers 1, 2 and 3, with Code approved interlocks or other devices permitted by the elevator code. The notice gave Temple one year within which to accomplish the work. When such work was not accomplished within one year the City gave Temple another notice on April 26,1974, requiring the work to be done. In response to this order, Temple filed an appeal with the Building Code Board of Appeals of Kansas City.

A hearing was held before the Board. Temple did not present any evidence but was represented by counsel who made a statement and cross-examined the City’s witriess. The City presented the testimony of Harold Anderson, supervisor of electrical and elevator inspections. Mr. Anderson stated he had inspected the elevators at the Temple Building. He found both the elevators and the doors were old and worn and unsafe. Mr. Anderson stated there were doors on each floor of the building which were opened and closed by an operator inside the elevator to give access to the elevator. These doors operated on rails and opened from the center so that each door had two panels which met at the center when closed. Mr. Anderson stated these doors were designed to be secured by an arm which went across both panels and when in the horizontal position would firmly lock the doors to keep them from being opened from the hallway. He stated if a door were opened from the hallway and the elevator was not at that floor then a person could fall into the elevator shaft. He stated an accident had happened a few years prior at the Empire Theatre when a young man opened an elevator door and fell into the shaft to his death.

Mr. Anderson stated the doors in the Temple Building did not operate properly because the horizontal arm did not go in a complete horizontal position which left the doors slightly open. He stated in this position a person with the strength of a teenager could use a simple tool and pry the doors open. He further stated the doors in the basement could be opened by simply pushing on the panels without the use of any tool. Mr. Anderson stated the ordinance required elevators to be equipped with an interlock system which would lock the doors on each floor and if for any reason a door were not locked, the elevator would not operate. He stated the doors equipped with this interlock could only be opened with a special key. By use of this system, the doors could not be opened without the special key and the elevator would not operate unless each door was closed and locked. In this way when the elevators were operating it would be certain the doors were locked and secure so that persons would not be able to open the doors and thus suffer the likelihood of falling into an open shaft.

Counsel for Temple told the Board the cost of installing the interlock system would be about $15,000. Mr. Anderson in his testimony agreed this figure was reasonable.

The Board entered findings of fact and conclusions of law in which it affirmed the order requiring Temple to install the elevator interlock system. On appeal to the circuit court no additional evidence was presented and the court entered an order affirming the decision of the Board.

On this appeal Temple contends the order of the Board is not supported by competent and substantial evidence. Prom the statement of facts set out above, it is apparent the Board had before it evidence that the elevators in the Temple Building were old and unsafe because the doors did not close completely and could be opened very easily with the use of a simple tool by any person with the strength of a teenager. The Board further had before it evidence of a reality of the danger of this situation in the incident which had occurred at the Empire Theatre. Temple does not elaborate on its contention the evidence was insufficient except to state the present system operates as well as the required interlock system would work. It must be remembered Temple did not see fit to present any evidence to the Board. There was no evidence before the Board to refute the evidence produced by the City to show the elevators in their present condition constituted a threat to the public safety. There was ample basis for the Board’s findings.

Temple argues the ordinance is vague and is not understandable by people of common understanding and knowledge and, therefore, void. On this appeal Temple bears the burden of proof “ ‘to show by clear and satisfactory evidence that the order is unreasonable or unlawful.’ ” Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17, 28[27, 28] (Mo.App.1973). Temple has not made the ordinance which it contends to be vague a part of this record and thus the ordinance is not before this court. On this record Temple has failed to sustain its burden to bring forth clear and satisfactory evidence to show the vagueness of the ordinance.

Temple pitches its main argument on the theory the City is not permitted to require an existing building to modify its elevator system to provide interlocks. This argument has been refuted in Missouri on the general principle that such an order is within the police power of the City. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 637[7-9] (1929). There the court held an ordinance preventing the storing of automobiles in certain existing structures was referable to the police power of the municipality and as such could affect existing structures. The court stated the ordinance would have to be wholly unreasonable and arbitrary in its effect and application before it would be nullified.

The precise question as to requiring existing elevators to be provided with an interlock system was decided in Abbate Bros., Inc. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691 (1957). There the court considered an ordinance adopted by the City of Chicago which required existing elevators to be equipped with an interlock system very similar to the system required in this case. The court stated “the general rule appears to be that while regulations restricting the use of property do not ordinarily have retroactive effect, municipal corporations in the exercise of their police power may, within reasonable bounds, enact ordinances or regulations having such effect.” 142 N.E.2d 694[3].

Temple’s counsel informed the Board it would cost $15,000 to equip its elevators with an interlock system. However, no testimony was presented beyond this bare figure which would demonstrate this requirement was unreasonable. The evidence shows the Temple Building is a 13-story office building in downtown Kansas City. Temple did not present any evidence from which it could be concluded the cost of installing the interlock system was unreasonable. Certainly the installation of the system is designed to protect the general public and falls within the police power of the municipality. Absent evidence to show the ordinance to be wholly unreasonable and arbitrary in its effect and application, it must be held valid.

Temple contends § 292.050 has preempted the field of elevator safety to the State and excludes municipal regulations. It should first be noted this section is only for the protection of the employees in the building where the elevator is located. Behre v. Hemp & Co., 191 S.W. 1038 (Mo.App.1917). Of greater import is the fact the State has delegated to the City of Kansas City the power to make reasonable regulations for the health and safety of the general public. Mo.Const. art. 6, § 19; Marshall v. Kansas City, 355 S.W .2d 877 (Mo. banc 1962). This ordinance falls within the police power granted to the City.

Temple makes some contention the ordinance is not properly adopted because the elevator regulations are contained in a uniform code book. Again, there is nothing in the record which permits review of this contention.

The judgment is affirmed.

All concur.


author: STEPHAN, Judge.

text:
    Harvey F. EUGE, Plaintiff-Appellant, v. BANK OF ST. LOUIS, Joseph A. Trotcha and Harold Rathman, Defendants-Respondents.
    No. 38499.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 2, 1978.
    Motion for Rehearing and/or Transfer Denied June 8, 1978.
    Application to Transfer Denied July 24, 1978.

      Harvey F. Euge, pro se.
    Jim J. Shoemake, J. Richard McEachern, St. Louis, for defendants-respondents.
   STEPHAN, Judge.

Motion of defendants for summary judgment was granted by the circuit court and plaintiff appeals. We affirm. The second amended petition, to which the motion was addressed, sought $100,000 actual and $300,-000 punitive damages for malicious prosecution of the plaintiff in that the defendant Bank of St. Louis, the other two individual defendants (who were employees of the bank at the time in question), and other unidentified agents and employees of the bank brought about the indictment and conviction of plaintiff for obtaining money by means of a bogus check. Although three “warrants” are referred to in the petition, it appears that we are concerned with only one charge of which plaintiff was convicted. That conviction was later reversed and the plaintiff discharged by the Supreme Court of Missouri. See State v. Euge, 400 S.W.2d 119 (Mo.1966).

The motion for summary judgment consists primarily of legal arguments to the effect that defendants were entitled to judgment as a matter of law because plaintiff was indicted, convicted, and the conviction overturned only after the Supreme Court observed that the facts would have permitted charges and convictions of two other crimes, albeit not the one charged in the indictment. Attached as exhibits to the motion were a copy of the second amended petition, a certified copy of the indictment and judgment of conviction, a copy of the original petition, and a copy of the officially reported opinion in State v. Euge, supra. Plaintiff did not respond.

The facts upon which the prosecution in State v. Euge was based are set forth at 400 S.W.2d, page 121:

“On September 19, 1963, defendant Harvey F. Euge went to the Manchester Bank of St. Louis, deposited $40 cash in a checking account under the name Dayton Mitchell Horn and ordered checks printed. Mrs. Daisy Hayes, an employee of the Manchester Bank, identified defendant at the trial as the man who opened the Horn account. Defendant had an account at the Bank of St. Louis from December 31, 1959, until January 28, 1963, when it was closed by the bank. This account was in the name of Harvey F. Euge. On October 17 or 18, 1963 (there is a conflict in the evidence as to the correct date), defendant went to a teller’s window at the Bank of St. Louis and re-opened his account in the name Harvey F. Euge. He deposited a check in the amount of $45 on the Manchester Bank of St. Louis, drawn to cash, signed by Dayton Mitchell Horn, and endorsed on the back by Harvey Euge. He received a deposit slip in return showing a $45 deposit in the Harvey F. Euge account. Immediately thereafter he wrote a check in the amount of $45 on the Harvey F. Euge account in the Bank of St. Louis, presented it to the teller at the Bank of St. Louis, and was given $45 cash. The Bank of St. Louis processed the Horn check and it was returned by the Manchester Bank, marked ‘insufficient funds.’ ”

In reversing the conviction because the check was not “bogus” within the meaning of § 561.450, the Court said at page 123:

“We consider this case to represent an exception to the rule announced in State v. Todd, supra [372 S.W.2d 133], and cases cited therein, to the effect that a bogus check is one drawn on a non-existent bank, or by or payable to a fictitious person. Here, though the check was drawn by a fictitious person (defendant by use of the assumed name Horn), the check was not a bogus check because there was a Horn account in the Manchester Bank and money in the account when the check was drawn on the account. The check was drawn by a fictitious person but on an existing account.”

As best we can determine, plaintiff contends here that the motion for summary judgment should not have been granted because (1) the ultimate disposition of his criminal case establishes that there could have been no probable cause for his prosecution; (2) the indictment was improperly procured because “no witnesses appeared before the grand jury” and the information presented to the grand jury was known to the defendants to be false; and (3) the issue as to whether there was probable cause for his arrest and prosecution is necessarily a jury question.

In an action for malicious prosecution, absence of probable cause is a necessary element of the plaintiff’s case. Palermo v. Cottom, 525 S.W.2d 758, 763 (Mo.App.1975). Because of the negative nature of this element, only “slight proof” is needed to make a submissible case. Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 945 (Mo.1953). As we perceive plaintiff’s first point, it is that his discharge by the Supreme Court establishes that there could have been no probable cause for his prosecution. Such contention is directly contrary to the rule in Missouri that a circuit court conviction “creates a presumption that there was probable cause for its instigation; and that plaintiff to prevail must overcome such presumption by proof that the conviction was obtained by false or fraudulent testimony, or other improper means, or that the defendant himself did not believe the facts alleged in support of the prosecution. This general rule applies even though the plaintiff shows that the conviction was subsequently reversed or set aside on appeal.” O’Donnell v. Chase Hotel, Inc., 388 S.W.2d 489, 491 (Mo.App.1965). See also Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 78 (1939).

As indicated, plaintiff accepts the facts as set out above, contending that they do not constitute a violation of § 561.450 and, in that sense, were “false”. Thus, we treat the second and third points together. In his brief, but not his petition, plaintiff states that his indictment was irregularly procured in that no witnesses appeared before the grand jury and that the information received by the grand jury was known by. the defendants to be false. However, we believe that what the plaintiff is contending is that the grand jury was advised by someone that plaintiff’s actions violated § 561.450 when, as we learn by subsequent decision of the Supreme Court, they did not. In short, plaintiff seems to be complaining about the legal effect rather than the accuracy of the facts leading up to his prosecution. Where the facts are not in dispute, the issue of whether probable cause exists is for the court, not the jury. Dodson v. MFA Insurance Co., 509 S.W.2d 461, 467-468 (Mo. 1974); Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 483-484 (Mo. 1972); Jones v. Phillips Petroleum Co., 186 S.W.2d 868, 875 (Mo.App.1945). In Dodson, supra, the court held, as a matter of law, that the person who reported to the prosecuting attorney the facts which gave rise to a criminal prosecution had “reasonable cause” for his action and therefore plaintiff’s cause of action failed. Similarly, we hold that the facts leading up to plaintiff’s prosecution in this case establish probable cause as a matter of law and that the trial court did not err in this regard in granting summary judgment for defendant.

In State v. Euge, the Court pointed out at 400 S.W.2d 122, that plaintiff’s transacting of business under a fictitious name without registering it constituted a violation of § 417.200, a misdemeanor. The Court also observed, without ruling the point, that, “It is possible that defendant could have been charged under § 561.460 RSMo 1959, V.A.M.S., for drawing an insufficient funds check.” Id. 123. It was only after the Court held that the particular facts of his case constituted “an exception” to the rule in bogus check cases that the conviction was reversed and the plaintiff was discharged. It is totally unrealistic to argue that defendants or anyone describing plaintiff’s behavior to a grand jury or law enforcement officers could have foreseen such ultimate outcome. It is not the office of an action for malicious prosecution to discourage the reporting of criminal activity to appropriate authorities or to require a person to do so at peril of an indictment being thereafter improperly drawn. See Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 79 (1939). Reversal of the conviction because of a narrow and novel construction of the statute relating to bogus checks did not eradicate the existence of probable cause unassailably established by other facts upon which plaintiff’s pleadings herein were premised.

The trial court did not err in granting the motion for summary judgment.

Affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . The plaintiff’s pleadings below as well as his brief and oral argument here are all pro se and imprecise. The argument portion of appellant’s brief can be said to follow the “Points Relied On” only when accorded the broadest of interpretation. See Rule 84.04(a).

      . He now argues in his brief that he “was under no duty to respond,” because the motion was “not verified and unsupported.” Rule 74.-04 does not require motions for summary judgment to be verified. Moreover, the motion was “supported” by his earlier pleading in the case which may be considered under Rule 74.04(c), by certified copies of the indictment and judgment of conviction which are self-admitting, § 490.130, RSMo 1969, and by a copy of the opinion of the Supreme Court from which plaintiff quoted in both his original and amended petitions.

      .These facts are not controverted by the plaintiff. Indeed, he argues in his brief that these facts establish that the defendants failed to fulfill their “duty to use and exercise ordinary care to make an investigation of its (the bank’s) records . . . before paying out any money to appellant upon the presentation of his check . . . ” In his motion to set aside the judgment below, plaintiff states that the “evidence” in the criminal case is set out at 400 S.W.2d 121.

      . In at least one case, a court has gone so far as to say that ordinarily, in spite of a reversal on appeal, such a conviction “conclusively” establishes “the existence of probable cause, . . ” Sestrich v. R. H. Macy & Co., Inc., 493 S.W.2d 52, 55 (Mo.App.1973).