text:
    STATE of Missouri, Respondent, v. Robert MOORE, Appellant.
    No. KCD 29106.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Bruce W. Simon, Simon, Simon & Katz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Robert Moore was convicted of stealing property with a value of over $50.00. Section 560.156, RSMo 1969. The jury assessed his punishment at confinement for ninety days in the Jackson County jail.

On this appeal Moore challenges only the sufficiency of the evidence to permit an inference that he possessed the requisite intent to steal. Affirmed.

The jury could reasonably have found that Moore, in company with another man, entered the Montgomery Ward store at St. John and Belmont Streets in Kansas City about 1:00 P.M. The Director of Security at the store saw Moore take off his jeans jacket and put on a leather coat from one of the store racks. Moore observed himself in a mirror while wearing the leather coat for about five minutes. Meanwhile his companion was talking to the only sales clerk in the area and requested something which required the clerk to go to the rear of the store. When the clerk left, Moore used a circuitous route to get near the exit where he vaulted a rail and left the building.

The Security Director testified Moore did not talk with any sales clerk before he left nor did he pay anyone.

When Moore saw thé Security Director following him outside the store, he began to run but was overtaken. He was returned to the store and stated he had only taken the coat out of the store to show someone and intended to return it.

There was other evidence showing the value of the coat to be over $50.00. Also, other evidence corroborated the testimony of the Security Director concerning Moore’s exit from the store and the chase. A police officer who was summoned and arrested Moore stated Moore also made the statement to him that he only intended to take the coat outside to show someone.

In his brief Moore makes some attempt to rely on the first sentence of ¶ 3 of § 560.156 which provides a defense if the person charged with stealing proves that he intended merely to use the chattel and promptly return it. This sentence was found to be unconstitutional in State v. Commenos, 461 S.W.2d 9 (Mo.banc 1970). That sentence is not available to aid Moore in this case.

The essential question is whether or not the evidence is sufficient to support an inference from the direct evidence of Moore’s actions that he possessed intent to permanently deprive Wards of the leather coat. In considering the evidence, “the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.” State v. Franco, 544 S.W.2d 533, 534[l-4] (Mo. banc 1976). Thus, on this appeal the statements by Moore that he intended only to take the coat out to show someone must be disregarded.

Of course, intent is rarely shown by direct evidence, but may be proven by reasonable inferences to be drawn from the evidence. In this connection a jury is entitled to infer that a person intends the natural and probable consequences of his intentional acts. State v. Ahern, 546 S.W.2d 20, 21[1, 2] (Mo.App.1976).

Taking the evidence and all inferences to be reasonably drawn therefrom most favorable to the verdict and disregarding all unfavorable evidence thereto, it is clear there was sufficient evidence before the jury from which a reasonable inference could be drawn that Moore intended to permanently deprive Wards of the coat. The jury could reasonably believe Moore’s companion deftly maneuvered the one sales clerk out of the area and Moore’s circuitous route toward the exit was designed to conceal his movements. His haste in leaving by vaulting a rail and the fact he broke into a run outside the building when he discovered he was being followed all support a reasonable inference that' Moore intended to steal the coat from Wards. State v. Garner, 538 S.W.2d 937 (Mo.App.1976).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Arthur SALLARD, Appellant.
    No. KCD 29137.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Arthur Sallard was convicted of assault with intent to do great bodily harm without malice, § 559.190, RSMo 1969, and sentenced to five years confinement.

Sallard does not challenge the sufficiency of the evidence but only asserts error in the admission of rebuttal evidence. Affirmed.

After Sallard left a convenience store the clerk called the police to report Sallard had taken some film and flash cubes without paying. Officer Wright of the Kansas City Police Department drove to the vicinity of the store and observed Sallard walking down the street. Officer Wright got out of his car and requested Sallard to stop. After Sallard walked some distance, he turned around and appeared to comply with the officer’s request that Sallard go to the police car. When Sallard drew near the car the officer attempted to place handcuffs on him. A struggle ensued during which Sal-lard attempted to obtain the officer’s gun. In the course of the struggle the gun was freed from the holster and Officer Wright was shot in the leg. Sallard also was shot in the leg during the struggle.

In his testimony Officer Wright stated he had requested Sallard to display some identification. In his testimony Sallard denied the officer had requested any identification.

The State was permitted to recall Officer Wright in rebuttal to testify he had not requested any identification from Sallard because he had been in contact with Sallard on previous occasions. Sallard testified in rebuttal he had no previous contact with Officer Wright. Officer Wright was permitted to testify again in rebuttal that he had contact with Sallard on previous occasions at two specific addresses in Kansas City.

Sallard complains first of the action of the court in permitting Officer Wright to testify the first time in rebuttal and in a separate point complains of the admission of the second rebuttal testimony by the officer. Both points are bottomed on the claim the testimony was not proper rebuttal but only cumulative and repetitious.

In State v. Williams, 442 S.W.2d 61, 65[7-9] (Mo. banc 1968), overruled on other grounds, State v. Ayers, 470 S.W.2d 584 (Mo. banc 1971):

Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence. State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 324. The scope of rebuttal testimony is largely within the sound discretion of the trial court, and unless the court abuses its discretion, or the defendant’s rights are prejudicially affected, an appellate court will not reverse on that ground even though the rebuttal testimony may not, strictly speaking, be proper rebuttal evidence. State v. Niehoff, Mo., 395 S.W.2d 174; State v. Hayes, Mo., 391 S.W.2d 338.

Here the rebuttal testimony by Officer Wright on both occasions falls within the above rule. Each time the officer gave competent testimony that tended to counteract, repel and disprove evidence offered by Sallard. Sallard does not show any abuse of discretion on the part of the court nor does he demonstrate any prejudicial effect flowing from the admission of this rebuttal evidence. No abuse of discretion is discerned nor is any prejudicial effect found.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert E. ROSS, Defendant-Appellant.
    No. KCD 29138.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Clifford A. Cohen, Public Defender, Sixteenth Judicial Circuit, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The defendant appeals a jury-imposed sentence of five years for felonious assault with malice.

The sufficiency of the evidence is not questioned, and the record amply supports the following facts.

A 71-year-old man was shot in the back while walking along a public street. He heard two shots, the second of which struck him. The bullet which struck him was removed from his back. Police officers, responding to the shooting report, canvassed the neighborhood and, upon the statement of a witness as to the direction the shots came from, observed a broken window in the attic of a residence. They went to the house and were met by the defendant and another person and made a cursory search of the premises. Thereafter, the owner of the residence signed a consent to search and, upon subsequent search, the officers recovered shell casings and a rifle with a telescope. The companion of the defendant testified to admissions by the defendant that he fired the shots. The bullet recovered from the victim was identified as having been fired from the rifle found. When the police found the gun, it had been hidden behind some plasterboard.

The defendant raises two grounds of error. First, that the court erred in failing to strike the jury panel because of the exclusion of women from the jury, and, second, that the trial court improperly limited the defendant’s voir dire examination of the jury panel.

As to the first point raised, the constitutionality of the Missouri statute, § 494.031(2) RSMo Supp.1975, and Mo. Const, art. I, § 22(b), are a part of a facially valid jury selection system and that system does not deny a defendant’s right to due process of law under the Fourteenth Amendment as that principle embodies fulfillment of the Sixth Amendment’s guarantee of an impartial jury in criminal cases. State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). In any event, the defendant failed to raise the point in the motion for new trial and, having failed to do so, has not properly preserved it for appellate review. State v. Webb, 544 S.W.2d 53 (Mo.App.1976). Rule 27.20(a). When constitutional error is claimed, it must be preserved at the earliest opportunity and asserted throughout the case. State v. Meiers, 412 S.W.2d 478 (Mo.1967). Absent Duren, the issue of sua sponte review might arise; but even if the issue were still open and so reviewed, this record establishes the defendant’s guilt by overwhelming evidence, and no manifest injustice or miscarriage of justice could have resulted.

As to the second ground of error, the specific inquiry which the defendant claims the trial court improperly denied him the right to make was a general question addressed to all jurors as to whether or not they had any friends or relatives who had served on a grand jury. First, it should be noted that this case was prosecuted under an information and that immediately preceding the inquiry concerning the service of friends or relatives upon a grand jury, the defendant had been permitted to inquire of the jurors whether they had served on grand juries. To those who responded affirmatively, additional questions were put as to whether the grand jury was federal or state and the period of such service. It is within the discretion of the trial court to control voir dire examination and only when the record shows an abuse of discretion will reversal occur. State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975), cert. denied, 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976). Additionally, the abuse of discretion must be accompanied by a real probability of injury to the complaining party. State v. Scott, 515 S.W.2d 524 (Mo.1974). The inquiry as to whether friends or relatives served on a grand jury is argued by the defendant as being directed to the possible bias of the jury. The question of service by friends or relatives on a grand jury is so remote and collateral to the issue of bias or prejudice of the jury that the trial court properly denied the defendant the right to pursue that inquiry. The defendant makes absolutely no attempt to show that the denial of his proposed inquiry resulted in any injuries to or limitation upon the defendant’s right to a fair and impartial jury. The cases cited in support by the defendant are inapposite because they are cases involving questions concerning the attitude of the jurors themselves.

Judgment and conviction are affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Henry SAFFOLD, Appellant.
    No. KCD 29163.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged as a second offender with stealing property of another ($47.00 in U.S. Currency and a billfold) having a value of fifty dollars or more. Sections 560.156 and 560.161(2), RSMo 1969. A jury found him guilty as charged and the trial court fixed his punishment at seven years imprisonment. A timely appeal followed.

Defendant’s chance of success on appeal pivots on a single point — failure of the trial court to honor his request to instruct the jury on stealing property of another having a value of less than fifty dollars.

A schematic presentation of the evidence appertaining to the theft will be followed by a detailed recital of all portions relating to the value of the stolen property.

On February 25, 1976, the victim was working at her husband’s office in Kansas City, Missouri. At one point during the morning she left the office reception room for a few minutes. When she returned she encountered defendant in the reception room. He inquired about employment opportunities with her husband’s firm. After advising defendant that there were no vacancies, she went over to her desk and noticed that her wallet was missing from her purse. She then glanced up and observed defendant leaving the office with her billfold tucked under his arm. Defendant then started running down the hall. The victim alerted her husband who, joined by another, pursued and apprehended defendant.

The victim’s billfold contained $47.00 in U.S. Currency. The only other item alleged to have been stolen was the billfold itself. Thus, the value of the billfold became a crucial issue. It was first explored by defendant on cross-examination of the victim as follows:

“Q. How long had you owned this billfold before February 25, 1976?
A. I’d say a couple of months maybe, something like that.
Q. Do you remember where you bought it?
A. No, a friend gave it to me and it’s within a — it's a handpainted set, is what it is.
Q. Okay. You — have you ever purchased one just like it or is this the only billfold of this type that you have ever owned?
A. Well, yes, of that type, but I certainly have seen them on the market.”
“Q. You never attempted to purchase a wallet such as this before?
A. No.
Q. All right. Therefore, I take it you really don’t know how much your friend paid for the wallet or how much the wallet like this costs.
A. I could probably get a receipt from her.
Q. All right. At this present time, as you sit in court, do you know what she paid for the wallet?
A. The only thing I can say is that I saw the — this very wallet, the whole thing, $5.00.
Q. Well, all right; $5.00:
A. Yes.
Q. So you think that this can be purchased new for $5.00?
A. Right.
Q. Now, you have had it a year, is that correct?
A. Well, not at the time it was stolen, but I have had it—
Q. Right now you have had it a year.
A. Yes.
Q. And you had had it for at least a couple of months on that date?
A. Yes, thereabouts.” (Emphasis added.)

The state, in a limited manner, explored the value of the billfold on redirect examination of the victim as follows:

“Q. Can you give us your estimate of the value of that billfold you have?
A. Well, since its with a set, I would say $5.00.” (Emphasis added.)

The thrust of the victim’s testimony discloses that the billfold was part of a matched set. Although the record is silent, perhaps a key case or cigarette case completed the set. Whether the estimated value of $5.00 applied to the billfold alone or to the entire “set” is far from clear.

A panoply of legal principles come into play. A defendant is entitled to an instruction on any theory which the evidence tends to establish. State v. Shivers, 458 S.W.2d 312, 316 (Mo.1970); and Rule 26.02(6). In determining the degree of an offense which is to be considered by a jury a defendant is entitled to an instruction which is supported by the evidence and any inferences which logically flow from the evidence. State v. Smith, 518 S.W.2d 665, 669 (Mo.App.1975). If a jury can reasonably find from the evidence that the value of the stolen property is less than fifty dollars then the crime of stealing property having a value of less than fifty dollars is treated as a lesser included offense of the crime of stealing property with a value of fifty dollars or more. State v. McCarthy, 336 S.W.2d 411, 413 (Mo.1960). In non-homicide cases, “[i]n the past and at this time the controlling factor with respect to the submission of a lesser offense . is whether the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense.” State v. Howell, 524 S.W.2d 11, 21 (Mo. banc 1975). Paragraph 4 of the “Notes on Use” appended to MAI-CR 7.70 (Stealing Without Consent of Owner), effective March 1, 1975, provides that “[ijf the offense is submitted as a felony for the stealing of property of the value of at least $50 and if there is any doubt that the value exceeds that amount, the stealing of property of the value of less than $50 can be submitted as a misdemeanor and as a lesser included offense.” (Emphasis added.)

More at hand, where evidence as to the value of a stolen item relates to its value prior to the time it is stolen, such evidence tends to prove that the value of the item on the date when it is stolen is less. See State v. Norman, 101 Mo. 520, 14 S.W. 661, 662 (1890). Without saying so, the court in Norman implicitly recognized the depreciative effect of time and use on the value of personal property. In State v. Cox, 508 S.W.2d 716, 724 (Mo.App.1974), involving an accused charged with stealing property of the value of more than fifty dollars but who was convicted of stealing property of a value of less than fifty dollars, and who complained on appeal that the trial court had erred in instructing the jury on stealing less than fifty dollars, the court stated: “Here, the evidence shows that the stereo was purchased some three months prior to the loss for $69.95. Since the stereo was some three months old, the jury was entitled to consider whether the stereo had depreciated to an amount less than $50.00; hence the court properly gave Instruction No. 3 on the lesser included offense.” The court held in State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 688 (1936), a grand larceny case, that where the evidence of value was of such a character that it was not sufficient “to justify the giving of what might be called a peremptory instruction to find the defendant guilty of grand larceny if they convicted him of larceny at all . . ”, it was error to fail to instruct the jury on “petit larceny”. The court went on to further hold that “[t]he fact that the evidence of the prosecuting witness on this point was not contradicted by positive proof is not sufficient to warrant the taking of the issue from the jury . . . [t]he appellant’s plea of not guilty put in issue every allegation of the information, State v. McBroom, 238 Mo. 495, 499, 141 S.W. 1120, and he did not concede the property taken was worth $30 or more.”

The jury in the instant case could have logically and reasonably inferred that the “set", which the billfold was merely a component part of, had an overall estimated value when new of $5.00, and that the value of the billfold alone when new was considerably less than $5.00. Further, the jury in the instant case could have logically and reasonably inferred that the value of the billfold had depreciated by reason of time and use when it was stolen and was therefore worth considerably less on that date than when new. When the facts in this case are melled with the authorities heretofore cited, this court is compelled to conclude that the trial court erred in not instructing the jury on the lesser offense of stealing less than fifty dollars as the jury could have logically and reasonably inferred from all the evidence that the total value of the stolen property was less than fifty dollars.

Judgment reversed and cause remanded for a new trial.

All concur.


author: PRITCHARD, Judge.

text:
    Rose Ann KUKRAL, Respondent, v. Charles K. KUKRAL, Appellant.
    No. KCD 29171.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Richard E. Duggan, Kansas City (Duggan & Keleher, Kansas City, of counsel), for appellant.
    Max Von Erdmannsdorff, Kansas City (Von Erdmannsdorff, Zimmerman, Gunn & Trimble, Kansas City, of counsel), for respondent.
    Before WELBORN, Special Judge Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

The appeal here is from a portion of a decree of dissolution of marriage which awarded respondent wife $2,500.00 as “her contribution to the marriage.” Appellant says the trial court abused its discretion in making the award because the division of marital property is heavily and unduly weighted in favor of respondent, “and that respondent’s contribution to the marriage is not a relevant fact in the determination of division of marital property.”

Appellant’s statement of the evidence in his brief does not accurately reflect what the record shows of the values of property set off to the parties, and what the court could believe, in its function of judging the credibility of the parties as witnesses and the weight of the evidence. As a part of the decree, the trial court ordered that each party take as his or her sole property any personal property, including automobiles, which either party may have in their possession at the time of trial. The evidence before the court, including the sworn statements of the parties as to their assets, tends to support this basic division:

Property awarded appellant:
1976 Cordoba (new) $ 7,000.00
Tractor 1,500.00
Household goods 1,000.00
Bench saw 409.00
Improvements to his house (increase in value) 3,000.00
Mexican bank account 500.00
Savings account 1,000.00
Pension Funds 1,080.00
Non Marital debt 585.00
$16,074.00
Property awarded respondent:
Cordoba automobile $ 4,800.00
Household goods 1,000.00
Non Marital debt 1,000.00
Cash 300.00
Teachers Retirement fund 591.74
Cash, for her contribution to the marriage 2,500.00
$10,191.74

The above figures are as precise as to values as may be gleaned from the record. It is evident that, including the $2,500.00 contributions to the marriage, appellant received $5,882.26 more in the marital property division than did respondent. It is thus apparent that the trial court did not abuse its discretion to appellant’s detriment. Furthermore, § 452.330 1(3) provides that the economic circumstances of each spouse may be considered. Here, appellant was earning a gross salary of $1,600.00 per month, while respondent was earning a gross of $1,075.00 per month.

Under the whole record, the judgment is supported by substantial evidence, and it does not appear anywise that it is wrong. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Danny DARBY, Appellant.
    No. KCD 29172.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Glen Simmons, Gifford & Simmons, Green City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Danny Darby was convicted by the court in a jury-waived trial of selling lysergic acid diethylamide (LSD) in violation of § 195.017.2(4)(i), RSMo 1971 Supp. The court sentenced him to ten years imprisonment.

On this appeal Darby contends there was a lack of substantial evidence to support the judgment and the sentence was excessive. Affirmed.

Trooper Moses of the State Highway Patrol was working under cover in Brookfield in 1974. He obtained information that Danny Darby was selling drugs. He made contact with Darby and purchased two “hits” of LSD.

At trial the trooper positively identified Darby as the person who sold the drugs to him. Darby’s counsel stipulated the drug sold was LSD.

In his first point Darby contends there was a lack of substantial evidence to support the judgment of conviction because the testimony of the trooper was doubtful. “Substantial evidence is that from which a trier of facts could reasonably find the issue in harmony therewith.” State v. Charles, 537 S.W.2d 855, 857[1-3] (Mo.App.1976). “The testimony of a single witness, if believed, is sufficient to establish identification.” State v. Thomas, 541 S.W.2d 775, 776[1, 2] (Mo.App.1976).

The weight to be accorded the testimony is to be determined by the court sitting as a jury. State v. Ramsey, 368 S.W.2d 413, 418 (Mo.1963). The only question on appeal is whether or not there is substantial evidence to support the judgment. State v. Lamaster, 534 S.W.2d 574, 578[5, 6] (Mo.App.1976). The trial court obviously believed the testimony of the trooper. That testimony constituted substantial evidence on the identity of the seller, which was the only contest fact. There was sufficient evidence to support the judgment of conviction.

Darby next raises a point which was not presented to the trial court in his motion for a new trial and is, therefore, not preserved for appeal. State v. Flynn, 541 S.W.2d 344, 348[8] (Mo.App.1976).

Darby contends the sentence is excessive because he does not have a previous record of drug offense. The range of punishment was from five years to life imprisonment. § 195.200.1(4), RSMo 1969. The punishment was within the range prescribed. An assignment that the punishment assessed is excessive presents nothing for appellate review. State v. Bibee, 496 S.W.2d 305, 312[10] (Mo.App.1973). No contention is made that the sentence was induced by bias or prejudice or other improper motive on the part of the court.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. John Larue JOHNSON, Defendant-Appellant.
    No. KCD 29190.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    J. Arnot Hill, Hill & Gamm, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a sentence of seven years for the offense of using and uttering a forged instrument. The sentence was by the court, the Second Offender Act having been found applicable.

Defendant asserts error in the failure of the trial court to direct a verdict of acquittal, asserting the evidence was insufficient to sustain the charge laid in the information.

A teller was at the drive-in window of the Raytown Bank when a man pulled in and asked her for a withdrawal slip. She sent a blank withdrawal slip out to the man through a pneumatic tube, asking if he needed a pen. The man said he had a pen, filled out the slip, and then sent it back in with a passbook. She became suspicious because the name on the passbook and the name on the withdrawal slip, Bill Newby, was that of a white man she knew and the man who handed her the passbook and slip was black. She took the documents to the bank manager, who told her to check the signature cards to see if there was more than one Bill Newby who had an account at the bank. The search revealed that there was only one person with this name who had an account at the bank. She identified the man who had attempted to make the withdrawal as the defendant.

Although the withdrawal slips had no words indicating where the signature should appear, most people signed it on the line at the bottom of the paper. The defendant had signed in the middle of the slip. However, even though the signature did not appear in the usual place, the bank would still honor the withdrawal slip and, on past occasions, had honored slips signed in the wrong place.

An officer of the bank then testified in corroboration of the teller. This witness unequivocally testified as to the nature of the “withdrawal slip.” He characterized it as the teller’s authority to withdraw funds from the passbook of the depositor. He, likewise, stated that the teller would then treat the withdrawal slip as a cash item to balance the teller’s window for the day. The officer also stated that the signature on the withdrawal slip was compared with the signature card for Bill Newby and that the main file was checked to see if any other “Newby” account existed. He also called the police who came and questioned a man he identified as the defendant. The defendant told the police that he had done some work for Newby and that Newby had authorized him to use the passbook to pay for that labor.

The police officer who had arrested the defendant at the bank also testified to the defendant’s statement as to the possession of the passbook.

The owner of the passbook identified the passbook for the savings’ account (State’s Exhibit # 2) as his and stated that the signature on the withdrawal slip was not his. He did not know Johnson, and he had never authorized Johnson to make withdrawals from the passbook.

The defendant concedes that the information and the instruction set forth the elements of using and uttering a forged instrument. In the context of this case, the four elements are: (1) defendant offered as true a withdrawal slip of the Raytown Bank; (2) that the document was of a kind commonly relied upon in business or commercial transactions; (3) that it was so made that it purported to have been made by another; (4) that the defendant knew it had been so made.

On the evidence adduced, the defendant argues the evidence is insufficient to sustain the conviction on each of the four elements. The defendant’s argument as to the four elements is as follows:

“As to the first element of the forgery crime charged all the defendant offered as true was an imcomplete,' unsigned withdrawal slip of the Raytown Bank.
As to the second element of the forgery crime charged the document offered was not of a kind commonly relied upon in business or commercial transactions.
As to the third element of the forgery crime charged the document had not been so made that it purported to have been made by another.
As to the fourth element of the forgery crime charged the defendant knew that he had written the name of a Savings Account Owner, the number of the account and the arabic number $457 but that he had neither dated nor signed said document.”

As to elements one and four, the entire argument is set forth above.

The court must consider these arguments in the light of the evidence most favorable to the verdict, indulging the favorable inferences from the evidence, as well as disregarding all evidence and inferences contrary to the verdict. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976); State v. Oldham, 546 S.W.2d 766 (Mo.App.1977); State v. Gilyard, 523 S.W.2d 564 (Mo.App.1975).

So considered, the defendant’s argument on the first element palpably ignores the evidence that the withdrawal slip would have been honored if the teller had not been suspicious. It was in the eyes of the bank not unsigned nor incomplete. The effort of the bank’s employees to find another Bill Newby account and to compare the signature show they viewed it as possibly true and complete enough to require payment.

So also, the argument as to the third element simply ignores the evidence that the defendant made and tendered the slip with the name of another and the inference that the defendant intended for the teller to believe it was made by Bill Newby. The attempt by the defendant to expand this argument by saying defendant did not represent himself as Newby is also fallacious. Defendant attempts to “bootstrap” himself by saying that if the teller had asked if he was Newby the defendant would not have so claimed, pointing to his false explanation following the event. The offense was complete when the slip was passed to the teller. The inference favorable to the verdict is that the defendant intended for the teller to believe that he was Newby and deliver the funds.

That the defendant knew the instrument was so made is indisputable. An inference of knowledge arises from use of a forged instrument. State v. Gilyard, 523 S.W.2d 564 (Mo.App.1975).

As to the second element, the defendant continues the argument by asserting that the undated, unsigned receipt is not a commercially relied upon instrument. Except for the lack of a date, the other portion of the argument made is simply the defendant’s more favorable view of the evidence. But here, the inferences favorable to the verdict must be accepted.

The bank would have honored the instrument signed in the wrong place. It does have an account number, and the amount is specified, albeit inexpertly. But for the vigilance of the teller and her acquaintance with Bill Newby, the amount requested might have been paid. The defendant’s argument that the slip is a mere “receipt” ignores the testimony as to the bank’s practices which demonstrate that such withdrawal slips are relied upon as authority for withdrawals and as cash items. What is a document commonly relied upon in business transactions is a fact issue and, upon this evidence, could be found to be such a document. A narrow view of the statute as relating only to negotiable instruments was rejected in State v. Glenn, 431 S.W.2d 200 (Mo.1968). The statute is intended to cover the use of any writing which is, under the evidence, within the definition.

Conviction affirmed.

All concur.


text:
    Nadine TROXELL, Plaintiff-Respondent, v. Francis M. TROXELL, Defendant-Appellant.
    No. 29225.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Brown, Buckley & Cassing, Sedalia, for defendant-appellant.
    George H. Miller, Royal M. Miller, Seda-lia, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, and PRITCHARD, J., and HIGGINS, Special Judge.
   Appeal from judgment which set aside portions of a property settlement between the parties, previously approved as an incident of their divorce, and a warranty deed executed by Nadine Troxell in favor of Francis M. Troxell as an incident of the property settlement.

The questions are whether the evidence warrants findings of fraud practiced by Francis M. Troxell on Nadine Troxell in procurement of the settlement and deed upon which to set them aside; and whether the court abused its discretion in denial of a continuance. Affirmed.

The divorce action filed by Nadine Tro-xell against Francis M. Troxell was heard by the Honorable Charles V. Barker June 14, 1971. Mrs. Troxell appeared in person and by attorney, Frank M. Brady, now deceased; Mr. Troxell appeared in person. Mrs. Troxell provided evidence sufficient for an uncontested decree of divorce, and identified the property settlement in question.

Nadine and Francis were previously married to each other in 1946 and subsequently divorced. They remarried March 17, 1955, at which time they had three emancipated children from their prior marriage. They subsequently had two children, minors as of the present divorce.

They separated April 8, 1971; and, although she thought she had “treated him pretty good,” he would become angry with her and would fuss, quarrel, and bicker with her. He appeared to have lost all affection for her, and they had become incompatible to the point where they could no longer live together.

The following transpired with respect to the property settlement:

“Q Now, you made a property agreement with Mr. Troxell as to your property, and the care of the children * * * And of this $23,500.00 payment, you are to get a thousand dollars a year of that, is that right? A Yes * * * Q And that is the agreement that you signed. A Yes, sir. Q And is that satisfactory to you now? A (Witness ponders.) Well, I guess it has to be. I signed it. * * *
“THE COURT: This property settlement agreement you signed, you said you guessed it has to be all right, because you signed it. It don’t have to be all right, if you don’t want it to be. Are you asking me to approve this property settlement — or are you not satisfied with it? THE WITNESS: Well, it wasn’t what I started out wanting. THE COURT: Is it what you want me to approve today? Are you satisfied with it? THE WITNESS: (Witness ponders.) As long as he holds his word, yes, I will settle for it. THE COURT: What was that $23,-000.00 for? THE WITNESS: Well, I asked for that, because I thought that is what I should have coming for the years [23] that I have put in. THE COURT: Is it in the property settlement * * * that you get so much money, and he gets the rest of the property, or what? THE WITNESS: Yes. THE COURT: What does your husband do? THE WITNESS: Well, right now, he is a salesman for Parkhurst Manufacturing Company. THE COURT: How much a month does he make? THE WITNESS: I think, between four and five hundred dollars a month. THE COURT: You think you can support these children on $37.50 a month? THE WITNESS: I don’t think I can. But then, I intend to work.
“THE COURT: What do you think the property is worth that you and he own? Mr. Troxell, maybe you better come up here.
“THE WITNESS: The thousand acre farm, I think is worth at least $80.00 an acre, between eighty and ninety dollars an acre. * * * THE COURT: How much is owed on it? THE WITNESS: Twelve thousand, — eleven thousand, five hundred. THE COURT: You don’t think you are getting half of the value there? THE WITNESS: No, I’m not getting half of it. THE COURT: Is your name on the deed? THE WITNESS: Yes, sir. THE COURT: You understand, if the divorce is granted, that you are entitled to half of it, — unless you agree to convey it over to him? THE WITNESS: (Witness ponders.) THE COURT: Do you understand that? THE WITNESS: Yes. THE COURT: Well you are past twenty one. I am not going to argue with you about your rights. But it seems to me that you may not be getting what you are entitled to. Are you asking me to approve it? THE WITNESS: Well, that is up to you. THE COURT: No, it’s not up to me. That is what I was asking you. Are you asking me to approve it? Are you satisfied with it? THE WITNESS: Well, that is what I signed. THE COURT: That wasn’t what I asked you. THE DEFENDANT MR. TROXELL: That is what I have had, twenty-five years,—
“THE WITNESS: It wasn’t what I originally started out asking for. THE COURT: That still isn’t what I asked you. I asked you, are you satisfied with it? Do you want it approved? THE WITNESS: I had rather have some more, but I agreed to take it, so I will stick by my word. THE COURT: All right, are you asking me to approve it at this time? THE WITNESS: Yes.
“THE COURT: Do you have any questions you want to ask her, Mr. Troxell, since you are not represented by an attorney? THE DEFENDANT MR. TROXELL: I agreed not to contest, at all. THE COURT: Is that evaluation she placed on the real estate anything near what it is worth? THE DEFENDANT MR. TROXELL: Well, I give $26.00 [$26,000] for it. THE COURT: How long ago? THE DEFENDANT MR. TROXELL: Ten years ago. THE WITNESS: He gave twenty nine for it. THE COURT: If you want me to approve it, I will approve it, except as to child support. THE DEFENDANT MR. TRO-XELL: It is not anything but brush, trees, —THE WITNESS: You were asking $100.00 an acre. THE DEFENDANT MR. TROXELL: I could ask two hundred, but what difference does that make?
“THE COURT: You understand, Mr. Troxell, this agreement you have with her is not binding on me as to child support? THE DEFENDANT MR. TROXELL: That’s right, Judge. THE COURT: I do not think thirty-seven-fifty is sufficient. MR. BRADY: And this is based on the fact of the use of the premises, as long as she wanted to, and these were — THE DEFENDANT MR. TROXELL: It’s what we just agreed on—
“THE COURT: This property settlement doesn’t provide all of that. I don’t know anything about that. * * * You are entitled to be — to take the stand and be sworn, and say anything you want to in reference to this matter, if you want to. * * * Property settlement filed and approved; decree as per entry filed.”

Mrs. Troxell filed her action to set aside the property settlement and warranty deed which she executed pursuant to the settlement November 22, 1975.

In Count I she alleged that the property settlement was entered into on or before June 14, 1972, and affected title to two lots in Fristoe, Missouri, and subject tract of 1,000 acres of land in Benton County; that Francis M. Troxell had misrepresented the value of subject tract as well as all the properties which they held by entirety; that she believed his representations and relied on them; that she had learned they were false and fraudulent and made for the purpose of inducing her to join in the property settlement. She prayed that the property settlement be set aside.

In Count II she incorporated the fraudulent misrepresentations of Count I and alleged that she was by them also induced to execute a deed conveying to Francis M. Troxell the 1,000-acre tract in question. She prayed that the deed be set aside.

Mr. Troxell, on November 22, 1975, denied the allegations of fraud, asserted superior or equal knowledge on the part of Mrs. Troxell, and counterclaimed for damages for malicious prosecution.

Mrs. Troxell filed an amended petition to add Count III for damages November 1, 1976; Mr. Troxell filed a number of motions, i. e., to dismiss, to strike, to make more definite and certain, and to elect, in the course of which laches was asserted as a defense.

The case came on for trial November 12, 1976, before the Honorable Kelso Journey, and the following transpired:

“ * * * this Court was assigned as Special Judge to sit in this matter on February 12, 1976. * * * The case was set * * * for this date for trial, prior to September 7,1976. Is the plaintiff ready to proceed, Mr. Miller? MR. MILLER: Yes, your Honor, the plaintiff is ready to proceed. MR. BROWN [for defendant]: No, your Honor, MR. MILLER: * * * plaintiff will at this time ask leave of Court to withdraw plaintiff’s amended petition and * * * go to trial on the original petition. THE COURT: Is there any objection * * Mr. Brown? MR. BROWN: * * * I have no objection to his withdrawing his amended petition, but I have objection to his proceeding to trial on his original petition under the circumstances.
“THE COURT: * * * Leave will be granted for the plaintiff to withdraw the amended petition. * * * the original petition in this matter was filed on November 22, 1975; * * * the defendant filed answer and counterclaim to the two counts in the original petition on December 17, 1975, thereby putting the case at issue. What are your grounds for objecting to going to trial at this time, Mr. Brown? MR. BROWN: My grounds * * * are that when he filed the amended petition he raised entirely new matters which were totally foreign to the original petition. Now, I sent a letter down to the Clerk’s office some two weeks or so ago, or three weeks or so ago, expecting to go to trial on the original petition. I was advised by the Clerk that there was an expectation that there would be an amended petition filed, and there was one filed within a day or two thereafter. Since the case on that basis was not at issue and could not have been at issue at this late date, because under the rule I had 20 days from the date of the filing of the amended petition to file a motion or responsive pleading, I filed my motion and I instructed the Clerk not to issue the subpoenaes based on that set of circumstances. * * *
“THE COURT: The Court has examined the amended petition. Its Counts I and II appear to be substantially the same. * * The only change in the amended petition is Count III, which is seeking damages, and plaintiff by withdrawing the amended petition has abandoned the suit for damages. The objection will be overruled. Do you desire to make a statement? MR. BROWN: If the Court please, could I have some time at least to get out some subpoenae s? THE COURT: Mr. Brown, this case was set for trial before September 7, 1976. MR. BROWN: I understand it was set for trial. THE COURT: And the Court was never contacted up until yesterday by yourself. I received in the mail a Motion to Dismiss the Amended Action. I talked to you on the telephone and I told you yesterday that the Court had planned to set this for trial for this date and to be prepared to go to trial, so the Court will proceed in this matter. MR. BROWN: * * * what you say is correct, but then the courthouse here was closed yesterday, * * *. There was no way I could have gotten subpoenaes out. THE COURT: Well, if you chose to cancel your subpoenae s, Mr. Brown, that is a matter for you. This case was set for trial prior to September 13th, and you had no indication from the Court that the case was continued. * * *
“MR. BROWN: Could I have a recess for a little while to get some subpoenaes out? * * * THE COURT: Yes, sir. * * *
“THE COURT: You may proceed, Mr. Miller. The parties have returned with their attorneys. * * *
“MR. BROWN: First I would like to file a formal application for continuance. * * THE COURT: The application for continuance is overruled by the Court for the reason that it is untimely; secondly, it is absolutely in error when defendant states he was not advised of the Court’s intention to hear this case until November 11th. * * this case was set for trial before September 9th of 1976.”

During her marriage to Francis, Mrs. Troxell, now 48 years of age, raised their five children, two of whom are still in their teens. She also worked as a waitress to help him finish college, in a dime store to get money for the children’s clothing, and as a teacher’s aid in two schools where her husband taught. They had lived in Iowa, Nodaway County, Missouri, and Nebraska, prior to moving the household to the Benton County farm in 1965. While in Noda-way County, they first lived in an apartment house which they owned, after which he bought a 160-acre farm and they lived on that. The farm was later sold. They also acquired a service station property in Mary-ville which, at the time of the second divorce, was producing $75 per month income. She knew nothing of debt against those properties. “He did all the financing things and any notes to sign, why, he told me to sign them, and I signed them, and that is all there was to it.”

The Benton County farm of 1,000 acres acquired by the parties in 1959 for $26,000 to $29,000, lies seventeen miles southeast of Warsaw on VV Highway off Missouri Highway 7. Mrs. Troxell and the children moved there in 1965; Mr. Troxell remained in Iowa teaching. At the time of purchase, the farm had about 200 acres of open land. Open land was increased to between four and five hundred acres by 1971, part of which was utilized to raise alfalfa, wheat, and fescue, with the remainder in grass for cattle. The home contained four rooms and bath, was of concrete block construction, and was being remodeled by the family to a two-story house.

Mr. Troxell always did the business in the family; Mrs. Troxell never knew of their mortgages, notes, or how much they owed. “He was continuously telling me that I didn’t know anything, and that I didn’t need to know anything, and all I needed to do was just sign and do what he told me to do, and he took care of the business.” While Mr. Troxell was away teaching, and as a superintendent of schools in Nebraska, Mrs. Troxell and the children cared for the farm including crops, stock, and improvements.

As the divorce approached, Mr. and Mrs. Troxell discussed settlement of their properties. “He is the one that did all the talking about the property and he would tell you what he was going to do. In fact, he told me I could go down the road with my suitcase, that I had nothing coming.” With respect to execution of the property settlement and subject tract, “he said it was mortgaged for all it was worth, and that if we sold everything we had and paid off every debt we owed, neither one of us would have anything left. * * * He kept repeating it [the tract in question] was worth what he gave for it and that it was worth maybe $40,000.00 * * *.”

Mr. and Mrs. Troxell discussed the divorce and property settlement around May 14, 1971. “He just more or less said that we were going — see, I had moved out and had had an operation and I was recuperating at my home, and he come up and said, ‘Well, let’s get this divorce over with. * * I will meet you in town,’ so we went in town. He drove his car and I went in mine and we got in there; why, then he told me what — he said, ‘Here is what I will do, and I won’t do any different.’ * * * He told me he would give me the car and the mobile home and he would pay me $23,000.00 for 23 years, or a thousand dollars every year, but no interest * * *. We went over to Mr. Brady’s office and he told Mr. Brady everything we had was mortgaged for all it was worth and he said, ‘This is what I will do and that is all I will do.’

“Q Who dictated the terms of this property settlement? A He did. Q Did he tell you what you would get if you didn’t take that? A He told me I would get nothing and he told me I better take that settlement or else. Q Was there any statement made as to what portion of your net worth you were getting * * * ? A He said I was getting the better end of the deal and that I was stripping him, that he was left with the debts. Q * * * Did you believe that you were getting as much as half or more than half of the property? A Well, I had to take his word for it. He had all the records. I didn’t know what it was worth. * * * Q (By Mr. Miller) Mr. Troxell said in answer to interrogatory that he offered to split the place with you when you got the divorce. Tell the Court what he offered * * *. A He offered to give me 80 acres of brush way back in the back. There was no road to it. There was no electricity, no water, nothing except just brush. Q Was that in lieu of the $23,000.00? A Yes. * * *
“Q Following this document that you signed, did you then sign this stipulation over in Mr. Brady’s office after it was drawn up? A Yes, sir. Q Who drew it up? A Mr. Brady did at the direction of Francis. * * * Q Now, at the time you obtained that divorce, June 14th, did you still assume that whatever he had told you about your property and your debts was true? A Yes. Q And the Court asked you if you wanted him to approve that settlement, and you told the Court— you hesitated and finally told the Court you did want him to approve the property settlement? A (Witness nods head.) * * Yes. Q At that time when you told the Court that, did you still believe that the representations he had made to you about the value of the farm and the fact that you owed more than your assets were was true? A Yes, sir. * * * Q Were you relying upon those statements that he made when you signed the property settlement and when you got your divorce? A Yes, sir, I was. He told me that he was going to court to see that I did not change my mind if I wanted to, and that I had damn better well take the settlement that he fixed up or else.
“Q (By Mr. Miller) When did you first learn that you had been misled by Mr. Troxell as to the value of the farm and everything else and that you had been misled as to your property settlement? A When he filed for the children, when he gave his deposition and on the witness stand at that trial [1974]. Q * * * And then did you start seeking advice as to what the actual market value of that place was? A Yes, sir. * * * Q When you learned of these things that you have told us about, that his representations were not true, then did you authorize your attorney to file this lawsuit? * * * A Yes, sir.”

The circumstances surrounding the property settlement were developed further on cross-examination.

“Q Now, Mrs. Troxell, when you went to Frank Brady’s office, who was Frank Brady representing? A Well, I guess he was representing both of us because he drew up the settlement as Francis told him to draw it up. Q Who drew up the divorce petition? A He did, but the way Francis told him. Q You mean Francis dictated the divorce petition and dictated the stipulation? A He dictated the settlement, yes, sir. Q I am asking you who dictated the divorce petition. A I don’t know if there was any dictation to it. * * Mr. Troxell did the talking. Q Now, do you want this Court to believe that Frank Brady sat there and let Mr. Troxell dictate a divorce petition and property settlement agreement? A Yes, sir. Q And he was representing you and he did nothing? A He sure did. * * * Q * * * Now then, when we came down to the figure that you arrived at of $23,500.00, I will ask you to tell us whether or not it was your idea that you should be paid a thousand dollars for every year you had been married, and that is where the $23,500.00 came in? Isn’t that what you told both Mr. Brady and your husband? A No, I did not tell Mr. Brady anything. * * * He was trying to give me less and I said I wouldn’t take anything less than the $23,500.00. * * Q His original suggestion on a property settlement was at a figure less than this? A Yes. Q * * * And I presume that he at some point acquiesced and agreed to pay the $23,500.00? A That was the figure he arrived at. * * * Q Did you agree to that figure? A There was nothing I could do but agree. Q * * * You didn’t argue with him. He told you what to do or you suffered the consequences. * *
“Q Now, the fact of the matter is, Mrs. Troxell, when you are talking about your husband telling you what he was going to do, he told you he would pay you the twenty-three five or there would be a contested divorce, did he not? That is exactly why you asked this to be approved, isn’t that a fact? A No, because he told me he was going to court and make sure I did not change my mind, and after I had been deliberately stabbed with a hay hook and I had black eyes and hit in the mouth.”

Mr. Troxell estimated the value of the 1000-acre farm at $40,000, subject to $11,-830 indebtedness at the time of predivorce discussions between him and Nadine. He maintained they had agreed that all their real properties together had a value of $56,-000 subject to $26,830 in mortgages. He also described their personal properties, including livestock, and their then current debts, and estimated they would each be entitled to about $8,000 worth of personal property.

Mr. Troxell gave his version of the predi-vorce settlement negotiations. They discussed the matter on different occasions. “ * * * it would be difficult to say whether it was two, three, four. I was traveling, as has been pointed out. I was working for a company. I only came home on the weekends. When she threw this thing at me, I told her and I sincerely believed it, that we owed very close to what it was worth, the whole thing. Q * * * Did she ever tell you what she thought it was worth? A She has here today, but she has never before that time. * * * she has indicated she relied upon my judgment, but she has always had quite a bit to put in on everything else, so I feel she had plenty to say about that, too. She had her day in court. She had her day when she went to Mr. Brady. She approached Mr. Brady. I never contested it. * * * Q When she went to Mr. Brady, what happened over there with regard to the property settlement? A Well, we had talked about what could be worked out. Q And did she give the information to Mr. Brady * * * ? A I think we had talked about this out at the farm; she denies that. She wanted a thousand dollars for every year that we were married, and we talked about this at great length. I said, T don’t believe you can go up and down the road here and find anybody who would be in a position to give their wives a thousand dollars for every year they have been married to them, whether it be one year or 40 years,’ but I don’t know where she dreamed up this idea or what kind of reasoning went into it, but, nevertheless, it sounded completely out of line to me, and that is why we drew up these figures here because she knew what we owed. She maintains she doesn’t know what we owed, but there is no reason why she didn’t. She signed every one of the contracts. She went with me every time I borrowed the money.

“ * * * Q Did you every conceal anything from her about your property or your investments or your borrowing or assets or anything of that nature. A No, sir, we had joint accounts. She wrote more checks than I did. * * * Q She says you offered her 80 acres of that farm. * * * A * * * she wanted the trailer house and I offered to go north of the house, we figured approximately 60 acres right along the road, and I offered her that. Part of that is cleared and it was never given to her in lieu of all of the settlement. It never was intended to be that way. We even went back and built a fence to divide up the farm that laid along the other gravel road, to the south side of the farm, and she was with me. We measured; we walked it. We spent a lot of time trying to figure out what was fair, how we could get 60 acres or 80 acres carved out of a thousand acres of land. Q The 80 acres or 60 acres, whatever it was, along the road, how would it have compared in value to the remainder of the farm? A Well, it would have compared very favorably to some 900 acres of it, which it was trees, this is true; the only land there is what lies along the road, that is the only land there is on that farm. Q The value is in that which is along the road? A That is where it is at. * * *
“Q Mr. Troxell, did you dictate that settlement agreement? A I didn’t dictate anything. Q To your knowledge, who prepared it? A Her attorney, Mr. Brady. Q Was there ever at any time, from your observation, that he gave any indication to you that he was doing other than protecting Nadine’s interest to the best of his ability under all of the circumstances? A No, because he was her attorney. She contacted Mr. Brady. Q He never did discuss this matter with you, privately I am talking about? A No, not privately. In other words, I was there and we hashed this thing out, and we even approached the Osage Valley Bank to act as the escrow agent, and the record shows over there they were approached to handle the payments and the money would be put over there, and in the course of the deal I think written in this agreement someplace, it shows that if the farm was ever sold, that her money would be put in the Osage Valley Bank and would earn interest and the interest would be accumulated and she would be given the thousand dollars each year. * * * Q She lived out there for about three years after the divorce, didn’t she, on that farm? A Yes, sir. * * * Q Did she say anything to you in that period of time of about three years when she lived but there that she thought she got the short end of this settlement? A Never. She has never been able to come up with a witness of any kind that showed me she ever told me she was unhappy. * * * she never indicated any disinterest or she had been defrauded in any way until she approached Mr. Miller was the first time we heard about it. * *
“Q Did you hear the testimony when she told the Judge in her judgment the property was worth eighty or $90,000.00, in essence, eighty or $90.00 an acre? A No, sir, I cannot recall her ever saying that, but it has been — I guess somewhere along the line it has been brought out that she did say this. Q You didn’t hear all of her testimony, I take it? A No, I didn’t, because she talked low and had the martyred attitude as she usually does.”

Mrs. Troxell graduated from high school and during her marriage acquired 30 hours of college credit. She has since become a beauty operator. Mr. Troxell holds a Bachelor of Science degree from Northwest Missouri State Teachers College, a Masters degree in Education from the University of Missouri, and a Specialists degree in School Administration from the University of Nebraska, over 200 college hours all told. In addition to teaching, farming, and managing business properties, he has also dealt in the stock market.

W. D. Blake, a real estate broker from United Farm Agency at Preston, Missouri, valued the 1,000-acre farm as of June, 1971, at $125 to $150 per acre ($125,000 to $150,-000). Mr. Troxell told him in 1974 that he would sell it for “$175,000 net to him.”

Ruby Davis, a real estate broker in Warsaw, Missouri, valued the farm as of June, 1971, at $125 to $135 per acre ($125,000 to $135,000) in a “cash sale.”

Douglas McCain, a real estate broker in Lincoln, Missouri, judged the farm could have been sold for $120,000 in May and June, 1971, and that it had a value in November, 1976, of $200,000.

The court found:

“1. That Defendant, in obtaining the Property Settlement with Plaintiff dated May 12, 1971, and the subsequent deed of real estate from Plaintiff pursuant to said Settlement, represented to Plaintiff that:
“A. Their liabilities acquired during their years of marriage approximately equaled the value of all their assets; and
“B. The market value of their 1000 acre Benton County, Missouri jointly owned farm was $40,000.00 at said time; and
“2. That said representations were false; and
“3. That Defendant knew that said representations were false and in fact untrue, and Defendant made such representations knowingly, intentionally, deliberately, and wilfully, for the purpose of inducing Plaintiff to enter into said Property Settlement and to execute and deliver to him said deeds pursuant thereto; and
“4. Said representations were material to entering into the Property Settlement by Plaintiff; and
“5. Plaintiff relied on said representations in entering into the said Property Settlement with Defendant, and in so relying Plaintiff used ordinary care considering her unequal facilities for ascertaining the truth, her situation generally with her relation to and treatment by Defendant, and that the facts were peculiarly within the knowledge of Defendant; and
“6. As a direct result of such representations Plaintiff was cheated, defrauded and overreached by Defendant; * * *
“8. The court further finds from the evidence that the fair market value of the parties’ said 1000 acre Benton County, Missouri farm on May 12,1971, was $135.00 per acre, or $135,000 rather than the $40,000.00 value represented by Defendant to Plaintiff when said Property Settlement was executed.
“9. The court further finds that the parties 50-50 or equal basis for dividing their said [other] properties to have been fair and reasonable considering all their factors and their relative contributions during their said marriage. That, aside from the division of the 1000 acre farm, the value each has received to date from their other property and the payments made to date by Defendant to and for Plaintiff or for in-debtednesses, less the value of Defendant’s free use of Plaintiff’s one-half share of said farm, is equal. Therefore, no re-distribution of any of said other property is ordered by the court, nor is any contribution from one party to the other ordered for any such payments since the divorce to this date.
“10. Defendant’s contention * * * that Plaintiff was represented by an arms-length attorney in negotiating said Property Settlement is unfounded. The evidence clearly showed that the involved attorney never entered into the negotiations and only served as the scrivener in writing the Property Settlement as dictated by Defendant after Defendant had wrongfully induced Plaintiff to agree to the same by his aforesaid misrepresentations.
“11. Defendant’s grounds * * * for a Continuance of the trial on November 12, 1976, are not well-founded. This cause was set for trial for this date prior to September 9, 1976. By letter in the file from Defendant’s attorney dated October 27, 1976, the clerk was directed to issue subpoenas for November 12, 1976 to H. D. Honea, Ed Button, Nancy Gardner and Larry Rose. By memorandum thereon dated October 29, 1976, the Deputy Circuit Clerk * * * was directed by Defendant’s attorney not to issue the aforesaid requested subpoenas. This was done without any change in the trial setting authorized by the undersigned judge. Witness Ed Button appeared and was present in court in response to later subpoena, but was not called as a witness by Defendant. Further, Defendant’s Motion for a Continuance filed after the commencement of the trial was not only untimely, but did not meet Supreme Court Rule No. 65.04 requirements for seeking a continuance for absent witnesses.”

Upon these findings the court ordered and adjudged:

“A. The Property Settlement between the parties dated May 12,1971, is hereby set aside, cancelled and held for naught because of the legal fraud Defendant practiced upon Plaintiff in obtaining the same.
“B. The judgment for $23,500.00 Defendant was to pay Plaintiff mentioned in said Settlement and the resultant Deed of Trust and lien therefor Defendant gave Plaintiff on the said 1000 acre Benton County, Missouri farm is cancelled and set aside and held for naught.
“C. The distribution and division between the parties of all of the parties’ property, both real and personal, owned by them on June 14, 1971, when they were divorced, with the exception of said 1000 acre Benton County, Missouri farm, is hereby ordered, reaffirmed and ratified by this court, with no contribution required or ordered from Plaintiff to Defendant because of Defendant’s payments of any indebtedness of the parties, liens or taxes on any property, or payments of money by Defendant to Plaintiff or in her behalf or for any improvements on said 1000 acre farm since said divorce, and further, the Clerk of this court is hereby directed to pay over the moneys Defendant has paid into court in Plaintiff’s behalf to the Plaintiff.
“D. The ownership of an undivided one-half share of the said 1000 acre farm [legally described] is hereby vested in Plaintiff, Nadine Troxell, with the remaining undivided one-half share in Defendant, France s M. Troxell, as tenants in common, subject to the approximately $9,000.00 unpaid principal balance on the note and first deed of trust on said farm * * *. Inasmuch as Defendant has had the sole beneficial use and the income from all of said farm since the divorce of the parties, he shall not be entitled to any contribution from Plaintiff for any interim payments he has made on the principal and interest on said * * * loan, or on any other lien or taxes thereon, or for any improvements made during said time, and further, Defendant’s share in said farm shall be and is chargeable for all the 1976 taxes and for the payment of interest on said loan until January 1, 1977, and thereafter a one-half share of the same shall be paid by each party. * * *
“The warranty deed purporting to convey Plaintiff’s undivided interest in said 1000 acre farm to Defendant, executed and delivered on or about June 14, 1971, and recorded in Book 316 at Page 847 of the Deed Records of Benton County, Missouri, is hereby set aside and held for naught insofar as it purports to convey to Defendant the interest of Plaintiff in the aforedescribed 1000 acre farm. * * * Defendant’s Counterclaim * * * is hereby dismissed and denied.”

Appellant contends the court erred in finding the issues in favor of plaintiff “with no substantial or credible evidence to support such findings”; that it would have been more appropriate for plaintiff to petition for modification; and that plaintiff .is guilty of laches.

Appellant does not demonstrate support for his contention that plaintiff should have proceeded to modify the divorce decree rather than to seek to have the incident property settlement and warranty deed set aside. This is understandable in that case law, e. g., McCarty v. McCarty, 300 S.W.2d 394 (Mo.1957), recognizes actions to set aside a warranty deed and property settlement executed prior to and in contemplation of divorce, allegedly procured through fraud.

The elements of such an action are the same as any action for relief on grounds of fraud: a representation, its falsity, its materiality, speaker’s knowledge of the falsity, his intent that his statement should be acted upon by the other party and in the manner contemplated, that party’s ignorance of the falsity, his reliance on its truth, his right to rely thereon, and his consequent injury. Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483, 488 (Mo. banc 1966).

“Ordinarily an agreement between husband and wife for a property settlement must be procured without a violation of the general rules which control the actions of persons occupying confidential relations with each other, unless the confidential relationship has already been severed and the parties are dealing with each other at arm’s length, as through an agent or attorney. * * * In addition to being free of fraud * * * agreements between husband-and wife in settlement of property rights should * * * be fair, just and equitable.” McCarty v. McCarty, supra, 300 S.W.2d l.c. 403.

The case has been stated in length and detail because such statement demonstrates evidence to support the findings necessary to relief to plaintiff on grounds of fraud and that the court made all such necessary findings. It also demonstrates conflicting versions of the events surrounding procurement and execution of the property settlement and deed; and resolution of such conflicts is the province of the trial court. Rule 73.01.3, V.A.M.R.

Nor is the plaintiff guilty of laches. It is true as asserted by appellant that Mrs. Troxell continued to live on and work the farm as before the divorce for three years following the divorce. She explained, however, that she was unaware of defendant’s misconduct in procurement of the settlement and deed until the 1974 proceedings in which defendant sought to modify the child custody provisions in the divorce decree. She took action immediately thereafter to become advised and sue for her rights. Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643, 656[18-24] (Mo.1973).

Neither is there any abuse of the court’s discretion in refusal of the continuance sought by defendant on the day of trial of a case set for trial two months in advance.

Appellant argues that this case was not at issue on the date of trial because defendant had not answered the amended petition. Appellant’s citations in support of this argument, Weir v. Brune, 364 Mo. 415, 256 S.W.2d 810 (Mo.1953), and Savings Finance Corp. v. Blair, 280 S.W.2d 675 (Mo.App.1955), stand for the proposition that where trial is accorded on an amended petition, issues raised by the original petition are deemed abandoned. Such is not this case where the amended petition was withdrawn and trial was accorded on the issues of the original petition, and the answer and counterclaim thereto. With respect to appellant’s assertions of inability to secure attendance of witnesses, suffice to say that the motion for continuance did not comply with Rule 65.04 which mandates the content of an application for continuance on account of absence of witnesses.

Judgment affirmed.

All concur.


text:
    Joanne PARSLEY, Petitioner-Respondent, v. Robert W. PARSLEY, Respondent-Appellant.
    No. KCD 29254.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Donald E. Raymond, Kansas City, for respondent-appellant.
    Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for petitioner-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

The father of six children has appealed from an order of the Circuit Court of Jackson County overruling his motion to modify certain provisions of a decree (once modified) entered in a divorce action awarding custody of the six children to the mother. He sought to have the divorce decree again modified in two respects, namely, that further child support payments for two of the six children who had attained their majority be terminated, and that custody of the four remaining minor children be transferred to him.

The father claims the trial court erred in failing to terminate child support payments for the two children who had attained their majority. The original decretal provision appertaining to child support, entered April 22, 1971, ordered the father to “pay to plaintiff [mother] as support and maintenance of said minor children the sum of Seventy-five ($75.00) dollars per week, the first payment in the sum of Seventy-five ($75.00) dollars to be due and payable this 22nd day of April, 1971, and a like sum of Seventy-five ($75.00) dollars to be due and payable on Thursday of each and every week hereafter until further order of the court, and in default of one or more payments, execution issue therefor.” On May 8, 1973, the same was modified as follows: “Plaintiff’s [mother] allowance for support of the six minor children is increased to $90.00 per week and defendant [father] is given temporary custody of the children [every other weekend commencing May 12, 1973, from 2:00 P. M. Saturday to 7:00 P. M. on Sunday and for two weeks during each summer]”.

The father perfunctorily assumes that upon showing that two of the six children had attained their majority he was entitled to a pro rata reduction of the single weekly sum for child support as a matter of law. The law is otherwise. As stated in Gordon v. Ary, 358 S.W.2d 81, 83 (Mo.App.1962), “a divorce decree, such as that before us, which fixes a single monthly sum to be paid for the benefit of two or more children is deemed by the courts to require payment of the entire sum until the youngest living child attains majority, or until the decree is otherwise prospectively modified by a court order.” It should be noted that the trial court in the instant case found that the single weekly sum of $90.00 was reasonable for the support of the four remaining minor children, from both the standpoint of their need and the father’s ability to support them.

The father concludes his appeal by claiming that the trial court erred in failing to award him custody of the four remaining minor children. He advances the argument that the best interests of the children leave no room for doubt that the trial court erred in not favorably entertaining his request for a transfer of custody. The two hundred and thirty page transcript in this case reveals that the parties seemed obsessed with the idea of continuing to vent familial bitterness and for this reason the evidence adduced was seldom mundane to the issue of where lay the best interests of the minor children. That which was, as might be expected, was conflicting in many crucial respects. Under the circumstances this court has no choice but to yield to the command of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and affirm the order of the trial court because it cannot be said that it lacks substantial evidence to support it, or that it is against the weight of the evidence or erroneously declares or applies the law.

Judgment affirmed.

All concur.


author: DONALD L. MASON, Special Judge.

text:
    Joseph GRANTHAM, Appellant, v. ROCKHURST UNIVERSITY, Maurice Van Ackeren and James Blumeyer, Respondents.
    No. 29255.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.

      Arthur A. Benson, II, John E. McKay, Kansas City, for appellant.
    Thomas M. Sullivan, Eileen S. Sullivan, Downey, Sullivan & Fitzgerald, Kansas City, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MASON, Special Judge.
   DONALD L. MASON, Special Judge.

Our review of this court tried case is dictated by Rule 73.01(3) as explicated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). By that case, l.c. 32, we are admonished “that the decree or judgment of the trial court will be sustained . . . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” We affirm.

By letter contract signed May 10, 1969, Joseph M. Grantham (appellant) was hired by Rockhurst University (respondent) as assistant basketball coach, baseball coach and instructor in the Physical Education Department for the 1969-70 academic year. His contract was renewed for successive academic years; and for the 1971-72 academic year he attained the stature of Assistant Professor, which he retained throughout his remaining employment with respondent, as well as being coach. Throughout his employment appellant performed five to seven hours of classroom instruction per week, plus preparation, and the remainder of his time was expended in his coaching duties. Commencing with his letter contract dated March 14,1971, for the 1971-72 academic year, defined portions of the Faculty Handbook dated September 1, 1970, were incorporated into that, and subsequent, contracts. On March 24, 1975, appellant signed his seventh consecutive employment contract for the academic year 1975-76. On June 4, 1975, respondent, through its academic dean, Father Blumeyer, advised appellant by letter that the contract which he signed for the 1975-76 academic year would be his terminal contract and offered him the option of tendering his resignation effective at the end of the school year or to terminate that contract either prior to the beginning of the school year or at mid-year. Appellant having failed to take affirmative action on these options within the time limits established, Father Blumeyer formally advised appellant on June 13, 1975, that the existing contract would be the terminal contract. This procedure is as prescribed by the Faculty Handbook, providing appellant had not achieved tenure, which is the apex issue for decision. Both parties fully performed under the terminal contract and no contention is made to the contrary.

On April 22, 1976, appellant filed the instant Petition for Declaratory Judgment and Injunctive Relief seeking a declaration that he had attained tenure and was thereby entitled to the benefits guaranteed to tenured faculty members. Tenure benefits include, inter alia, continued employment, except for reasons of financial exigency or discontinuance of a program or department of instruction, and then only with 12 months notice or a year’s salary as severance pay. Otherwise, termination of employment could occur only as a result of specified misconduct on the part of the tenured faculty member.

Trial before the court resulted in a judgment adverse to plaintiff. For reversal appellant urges four allegations of error, each of which we will discuss. We will interpose additional facts as they are pertinent.

Three of appellant’s assertions of error are interrelated, and paraphrasing them he alleges that the provision in the Faculty Handbook, incorporated into the letter contract providing for automatic tenure, was latently ambiguous in that it could have two meanings and was not defined in the contract; that the same provision was patently ambiguous in that it was contradictory to the provision in the Faculty Handbook providing for termination of contracts for non-tenured faculty; and that these ambiguities compel the construction of the contract in favor of tenure and against respondent. Appellant further asserts, in both his first and fourth allegations of error, that tenure vested on March 24, 1975, when he signed his seventh consecutive contract and respondent did not have the contractual power to thereafter unilaterally declare that contract to be his terminal contract.

These assertions require an exposition of the general rules pertaining to construction of contracts. The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties from the contract itself and to give effect to that intention. When the language of a contract is plain, there can be no construction by the court because there is nothing to construe. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo.banc 1973); Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833 (Mo.banc 1961); General Am. Life Ins. Co. v. Rogers, 539 S.W.2d 693 (Mo.App.1976). Where the contract is clear and unambiguous, it becomes the duty of the court, as a matter of law, to state its meaning. Commerce Trust Company v. Howard, 429 S.W.2d 702 (Mo.1968). Where no ambiguity exists in the written agreement, the court cannot go outside the agreement and make a new contract for the parties. Marshall v. Estate of Marshall, 529 S.W.2d 914 (Mo.App.1975). It is only where the contract is ambiguous and not clear that resort to extrinsic evidence to show the intent of the parties is proper so as to thereby properly construe the contract; but a contract is ambiguous only when its language is reasonably susceptible to different meanings. Hathman, supra and Leggett, supra. A contract is not rendered ambiguous by the fact that the parties do not agree upon a proper construction to be given it. Hathman, supra. In construing a contract the words used therein will be given their ordinary and common sense meaning and will not be construed to include meanings to which they would not be applied by most people, Rhoden Investment Co., Inc. v. Sears, Roebuck & Co., 499 S.W.2d 375 (Mo.1973); William v. Beheler, 499 S.W.2d 770 (Mo.1973). In construing ambiguous contracts the objective is to ascertain and render effective the mutual intent of the parties; and to achieve this objective the court will consider the entire contract, subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contract, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances which cast light on the intent of the parties. Leggett, supra; Maschoff v. Koedding, 439 S.W.2d 234 (Mo.App.1969); Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252 (Mo.1972), so long as that evidence is not contradictory of, repugnant to, or inconsistent with the terms of the contract. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462 (Mo.1974). It is only when the contract is ambiguous, and extrinsic evidence is proper, that construction of the agreement is for the jury under proper instructions from the court. Commerce Trust Company, supra. This general law of contracts applies in the construction of teachers’ contracts. Adamick v. Ferguson-Florissant School District, 483 S.W.2d 629 (Mo.App.1972).

It is appellant’s initial contention that the phrase “after seven years of service” is latently ambiguous as it is not defined in the contract and is susceptible to two reasonable meanings, i. e. that tenure vested on March 24, 1975, when appellant signed his seventh consecutive contract, subject only to the completion of that contract without a breach on his part; or that the actual completion of seven years of employment was required before tenure could attach. The questioned phrase was used in the context that the respondent recognized “the principle that after seven years of service at the rank of full time Instructor or Assistant Professor tenure is automatically acquired.” In this context “after” is a preposition and is variously defined in Webster’s Third New International Dictionary (1971 Edition) as “behind in place or time,” “later than a particular time or period of time,” “following the expiration of,” and “subsequent to.” These are the plain, common sense and ordinary meanings to the word “after;” and when attached to the words “seven years,” obviously connotes after the expiration of seven years or subsequent to a seven year period. As a preposition, “after” is one of the most used words in the English language and has a readily acceptable meaning, without mystique, which does not require definition. To apply the meaning urged by appellant would require that we attach a meaning not commonly used by most people and also overlook that it is appellant’s burden, which he did not sustain, to prove that the parties intended a special meaning to this common, ordinary word. Rhoden Investment Co., Inc., supra. This we will not do. We consider these words to be plain, clear and unambiguous and not in need of construction arising out of extrinsic evidence bearing on the intention of the parties. Kalen v. Steele, 341 S.W.2d 343 (Mo.App.1960). It is clear from the language used, and unambiguous, that tenure could not attach until acceptance of the eighth consecutive teaching contract.

Turning our attention to appellant’s contention that that same phrase is patently ambiguous as it is contradictory to other provisions in the Faculty Handbook, we deem that assertion likewise without merit. This alleged contradiction and patent ambiguity arises from the contractual right of the respondent to terminate appellant’s contract prior to September 1, 1975, preceding the terminal date of the 1975-76 academic year contract. The Faculty Handbook, as incorporated into the letter contract, provides that respondent will give notice to the faculty member, not later than March 15th, of the rank and salary to be offered for the subsequent academic year. This is done via the letter contract. In the same paragraph it is provided that respondent must give official notice of termination, in writing, at least by September 1st preceding the terminal date of the current contract. This paragraph was applicable to non-tenured faculty (appellant). As noted above, other provisions for termination were applicable to tenured faculty.

Read together, as we must do, these provisions do not contradict and are not ambiguous and the intent of the parties can be readily discerned from the document itself. Hathman, supra. We have earlier discussed the phrase “after seven years of service” and determined it is not ambiguous. It is not necessary to expand that discussion, or change our determination, when that phrase is considered with the provisions pertaining to termination. The provisions are obviously for the benefit of both parties and readily understandable and not contradictory. If the faculty member does not receive a termination notice prior to September 1st, he is assured of being offered a teaching contract, before March 15th of the succeeding year, for the next academic year, and thereby assured of employment through commencement, some fourteen months later. Having signed that academic year contract, his employment must continue for the remainder of that academic year, even though respondent might choose, at some time prior to September 1st, to terminate that employment at the end of that academic year. At the very least the faculty member would know more than eight months in advance that he was going to be unemployed. By offering the contracts before March 15th the University will know whether the faculty member will sign the contract and accept the terms and conditions offered and thereby ascertain, some six months in advance, its faculty recruiting requirements for the coming academic year. If the non-tenured faculty member wants to terminate his relationship with the University at the end of the academic year, he need only return the offered contract unsigned. For the University to terminate the relationship notice must be given before September 1st; and upon the failure to do so, a contract for the subsequent academic year must be offered. This is a reasonable intendment of the parties and to give a different effect to this language would lead to detrimental results for both parties. Without this, or comparable language and schedule, neither party would have advance knowledge as to the intention of the other party for the subsequent academic year. The faculty member could find himself unemployed at the end of the academic year and the University could be without sufficient faculty at the beginning of the academic year, both parties without sufficient notice to take corrective action. These provisions are not contradictory or patently ambiguous and the intention of the parties can be readily discerned from the contract itself, thereby negating the necessity for the introduction of extrinsic evidence to prove that intent. Hardwick v. ISC Industries, Inc., 542 S.W.2d 302 (Mo.App.1976).

The cornerstone of appellant’s preceding argument, and as his fourth charge of trial court error, is that appellant achieved tenure status when he signed his seventh consecutive contract on March 24, 1975, subject only to successful completion of that contract without breach by him, and therefore, he could not be terminated and the provisions for termination discussed above are thereby contradictory. As previously stated, the challenged phrases are not contradictory or ambiguous. When read separately and together, the intent of the contracting parties can be determined and declared. Appellant’s contentions that he achieved tenure status when he signed his seventh consecutive contract on March 24, 1975, is without merit. To sustain this contention it would be necessary for the court to rewrite the contract, which we cannot do, Marshall, supra, and to hold that appellant obtained tenure after five years and ten months when the contract clearly provides that tenure cannot be attained until “after seven years of service.” Respondent’s termination of appellant’s contract was within its contractual rights and in conformance with the provisions of that contract.

As a corollary argument, appellant urges that the respondent’s evidence supports his contention that he obtained tenure on March 24, 1975, upon the execution of his final contract. This argument is fallacious for four reasons. First, that supportive evidence is not found in the transcript. Secondly, an ambiguity cannot be created by the unilateral assertion of one party or by the fact that the parties do not agree on the construction to be given the contract. Hathman, supra; Mickelberry’s Food Products Co. v. Haeussermann, 247 S.W.2d 731 (Mo.1952). Thirdly, it is the duty of the trial judge to determine as a matter of law whether the contract is ambiguous; and if not, to declare the intention of the parties. Commerce Trust Co., supra; Hardwick, supra. Fourth, extrinsic evidence should not have been received by the trial court inasmuch as the contract does not contain the charged ambiguities. Hathman, supra.

Also corollary to appellant’s assertions of contract ambiguities is that the contract must be construed against its author, the respondent. This assertion can be summarily answered by the declaration of established law that the courts do not construe a contract that is free of the charged ambiguities, but merely declare the intention of the contracting parties, Willman, supra; and it is only when a contract is ambiguous that it is construed against its author. Hinkeldey v. Cities Service Oil Company, 470 S.W.2d 494 (Mo.1971).

We have discussed and ruled on all issues raised by appellant. We have also studied each and all of the cases relied on by appellant, many of them from other jurisdictions, and do not find them supportive to appellant’s position or contradictory to the result herein reached.

The trial court ruled correctly in its disposition of this case and that judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Johnny G. WARD, Appellant.
    No. KCD 29258.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Roger M. Driskell, Richmond, for appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Johnny Ward’s motion under Rule 27.26 was denied by the court without an eviden-tiary hearing.

From this ruling Ward appeals and alleges (1) his motion raised issues of fact which required a hearing; (2) the court erred in failing to make written findings of fact and conclusions of law; (3) the guilty plea was not voluntary because made under threats; (4) he was denied effective assistance of counsel; and (5) the court found him guilty of a crime he did not commit. Affirmed.

Ward entered a plea of guilty to murder in the first degree under § 559.007, RSMo 1975 Supp., which was in effect on January 30, 1976, the date of the crime here involved. A transcript of the guilty plea has been filed here and shows the couri fully complied with Rule 25.04. No contention is made that the trial court did not correctly determine the plea was made voluntarily and with understanding of the nature of the charge before it was accepted.

On this appeal Ward first contends the court erred in refusing to hold an evidentia-ry hearing because his motion raised issues of fact which were not contradicted by the record of the guilty plea. Ward does not spell out what facts his motion pleaded which were not contradicted by the guilty plea hearing and an examination of his motion fails to reveal any.

Ward contends the court erred in failing to make written findings of fact and conclusions of law. Under Smith v. State, 513 S.W.2d 407, 412[7] (Mo.banc 1974) the court is not required to make findings of fact when it is authorized to deny the motion without an evidentiary hearing.

Ward next contends his guilty plea was not voluntary because he was acting under fear of having a more serious charge filed against him and because he was led to believe he would receive an early parole in return for a plea of guilty. Both of these grounds are refuted by the guilty plea hearing. At that time Ward unequivocally stated he was not pleading guilty as a result of any threat. The court also elicited from Ward the clear statement that Ward knew the court would impose punishment and that no promises had been made concerning his punishment. These allegations likewise are refuted by the guilty plea hearing.

Ward also contends he did not receive effective assistance of counsel because of various infirmities in his counsel’s action. However, once a guilty plea is entered, determination of the adequacy of counsel is immaterial except to the extent that it bears on the voluntariness and understanding of the person to enter his plea of guilty. Parks v. State, 518 S.W.2d 181, 184[3] (Mo.App.1974). It should be noted, at the time of the guilty plea, the court fully explored the action of Ward’s counsel. Ward stated his counsel had explained the case very fully to him and he was satisfied with the services rendered to him during the three months his counsel represented him.

Ward finally contends the court in effect found him guilty of a crime he did not commit by denying his motion. Ward’s argument seeks to attack the sufficiency of the State’s evidence to show him guilty of murder in the first degree under § 559.007. It is well settled that the sufficiency of the evidence may not be challenged by a motion under Rule 27.26. McCrary v. State, 529 S.W.2d 467, 471[6] (Mo.App.1975). However, it should be noted at the guilty plea hearing the State recited evidence to demonstrate Ward’s guilt and Ward’s attorney acknowledged the facts stated were true.

The judgment is affirmed.

All concur.