author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Christopher P. GRAVES, Appellant.
    No. 61039.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1979.
    Rehearing Denied Nov. 14, 1979.

      Richard W. Dahms, Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

Upon application of respondent, this appeal was transferred to this Court from the Court of Appeals, Western District, after the filing of an opinion because of the general interest and importance of the questions presented. We treat this case as if here on original appeal. Mo.Const. art. V, § 10.

Appellant, Christopher P. Graves was convicted in a jury trial of first degree robbery, rape and sodomy, and sentenced respectively to terms of five, seven and ten years, said sentences to run consecutively. On appeal, the court of appeals held that the trial court committed reversible error in failing to submit the time of day the various offenses occurred in the respective verdict directing instructions, after the appellant’s alibi defense caused the time of day to be of decisive importance.

On January 20, 1976, between 8:20 a. m. and 8:30 a. m., a man entered the victim’s home and during the course of an unbroken series of events, robbed, raped and brutally subjected her to an act of sodomy. The victim identified appellant as her assailant during the course of the trial. Appellant took the stand in his own behalf and denied all of the accusations. Appellant affirmatively testified that he was living with his brother at the time and was asleep at his brother’s home on January 20, 1976, between 8:20 a. m. and 8:30 a. m. and did not awake until noon that day. Appellant’s brother testified that appellant was sleeping at his home when he left for work between 8:00 a. m. and 8:30 a. m., which he knew because appellant “was always around.” The brother testified on cross-examination, however, that he did not remember specifically having seen the appellant on the day before or the day of the alleged offense, nor on the days following the alleged offense.

Appellant advances four incidents of alleged trial error as grounds for relief on appeal: (1) error on the part of the trial court in failing to submit the time of day the various offenses occurred in the respective jury directing instructions; (2) error on the part of the trial court in permitting the state to impeach one of appellant’s witnesses by means of a prior inconsistent statement without a proper foundation for doing so; (3) error on the part of the trial court in overruling defendant’s motion for additional discovery; and, (4) error on the part of the trial court in permitting one of the state’s witnesses to testify in contradiction to his testimony as previously disclosed during discovery.

The robbery charge was submitted to the jury by adapting MAI-CR 7.60, the rape charge by adapting MAI-CR 6.40, and the sodomy charge by adapting MAI-CR 12.50. The alibi defense interposed by defendant was submitted to the jury by adapting MAI-CR 3.20. The time the virtually concurrent offenses occurred was addressed in the state’s verdict directing instructions in terms of “on or about January 20, 1976”. Appellant claims injection of his alibi defense required the trial court to address the time the offenses allegedly occurred with greater specificity in the three verdict directing instructions.

Paragraph 2 of the “Notes on Use” appended to MAI-CR 6.40 (rape), so far as here pertinent, reads as follows: “if the defendant has an alibi for the particular rape charged, the instruction should submit the date and, if important to the defense, the time of day, e. g., ‘between the hours of -and-’ ” Paragraph 2 of the “Notes on Use” appended to MAI-CR 12.50 (sodomy) reads as follows: “Time may be of the essence and may even require submission of the time of day. Thus in a prosecution for sodomy committed some time between 6 and 8 p. m., testimony of a witness for defendant that he was in a tavern from 6 to 8 p. m. on the date of the alleged offense would be sufficient to support an alibi defense. State v. Heissler, Mo., 324 S.W.2d 714 (1959). In such case the instruction for the state should read ‘that defendant did so on-between the hours of 6 and 8 p. m., etc.” The “Notes on Use” appended to MAI-CR 7.60 (robbery, first degree) are silent as to the submission of the time of day.

The state argues that specificity in a verdict directing instruction regarding the time a submitted offense occurred is unnecessary, notwithstanding the “Notes on Use” appended to MAI-CR 6.40 (rape) and MAI-CR 12.50 (sodomy), unless time is of the essence of the offense itself. The argument proffered by the state, and the cases it cites, completely miss the mark. Defendant makes no claim that time was of the essence of any of the three offenses. Defendant does contend that greater specificity as to the time of. day the three offenses allegedly occurred as shown by the state’s evidence was of decisive importance in the respective verdict directing instructions by reason of the alibi defense which he interposed, the evidence supporting it, and its submission to the jury under an appropriate instruction.

Paragraph 2 of the “Notes on Use” appended to MAI-CR 6.40 and the companion paragraph appended to MAI — CR 12.50, soundly require that verdict directing instructions submitting rape and sodomy circumscribe, with reasonable certainty in conformity with the evidence, the time of day such offenses were purportedly committed when an alibi defense is interposed, supported by the evidence and instructionally submitted. We pointed out in State v. Armstead, 283 S.W.2d 577 (Mo.1955), that issues may be raised or joined which make time of decisive importance even though the crime charged may not be of such nature to make time the essence of the offense itself.

Rule 20.02(e) succinctly provides that “[¿living or failing to give an instruction or verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined.” This rule has been wisely construed as meaning that any error associated with noncompliance is “presumptively prejudicial”, State v. Clifton, 549 S.W.2d 891, 895 (Mo.App.1977), or, as earlier put in State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975), any error associated with noncompliance “must be deemed prejudicial unless the contrary clearly appears”. The trial court erred in failing to circumscribe the time of day the rape and sodomy offenses were purportedly committed, after the alibi defense was interposed, supported by evidence, and submitted in appellant’s proffered instructions. We now consider the prejudicial effect of this error.

Appellant’s own alibi testimony covered the period of time from the night before until noon on the day the alleged offenses occurred. Appellant’s corroborative evidence, the testimony of his brother, James Graves, supported his testimony stating that appellant lived with him and that appellant generally slept until noon. Moreover, James Graves testified that when he left for work between 8:00 a. m. and 8:30 a. m. on the morning in question, he believed that appellant was home asleep. The victim established that the alleged offenses occurred around 8:20 to 8:30 a. m. Other witnesses for the prosecution were in accord. The evidence before the jury clearly contrasted the time of the alleged offense and the alibi defense of appellant. This is not a case where the jury could believe that the defendant was where his alibi defense and corroborating witnesses placed him and still believe that the defendant committed the crime in question. The trial court’s error in failing to circumscribe the time of day the alleged rape and sodomy offenses were committed did not nullify the appellant’s alibi defense. We conclude that the trial court’s error was not prejudicial.

Appellant alleges error on the part of the trial court in permitting the state to impeach defense witness James Graves through the use of a prior inconsistent statement, without first giving the witness reference to all of the circumstances surrounding the statement and the place where the statement was made. At trial, appellant’s brother, James Graves, testified in support of appellant’s alibi on direct examination. On cross-examination, the state sought to lay a foundation for the impeachment of James Graves through subsequent testimony of Detective James Wright as to a prior inconsistent statement allegedly made by James Graves. The foundation laid for impeachment was as follows:

“Q. You recall talking to Detective Jim Wright of the St. Joseph Police Department the week of the rape, January 20th and telling the officer that your brother had not been staying with you, you don’t know where he was, and you hadn’t seen him for a few days? You recall making that statement to Detective Wright?
“A. No ma’am, I don’t.
“Q. You remember talking to Detective Wright?
“A. He and several other detectives have come around several times.”

Appellant contends that a proper foundation for impeachment requires that the attention of the witness must be called to the time, place and circumstances, and the person to whom the statement was made, citing State v. Bennett, 87 S.W.2d 159 (Mo.1935). Consequently, appellant alleges that the above foundation is defective for failure to establish all of the circumstances, including the time and place, of the purported inconsistent statement.

In State v. Vaughn, 501 S.W.2d 839, 842 (Mo. banc 1973), this court declared,

“It is, or course, well settled that when a witness has testified to a material fact it is proper to admit evidence that he has previously made a statement relating to that fact which is inconsistent with his present testimony. A foundation must first be laid by asking the witness on cross-examination if he made the statement, and obtaining either a denial or an answer that he failed to remember it.”

In Vaughn, the following foundation was found to be adequate:

“Q. When you talked to Mrs. Vaughn do you recall telling her you did not think McNeal knew what was going on, that he was surprised when the robbery took place?
“A. I don’t remember talking to her. “Q. So you don’t recall making that statement?
“A. No.”

501 S.W.2d at 841. See also State v. Douglas, 529 S.W.2d 162 (Mo.App.1975). In the case at bar, a sufficient foundation had been laid. James Graves was told of the purported statement, to whom it was allegedly made, and the week he was said to have made it. It is clear that he understood the statement attributed to him and that he could identify the person to whom the statement was allegedly made. There appears to be no confusion in the witness’ mind as to the circumstances of the alleged statement, nor is there evidence of unfair surprise. The point is overruled.

Appellant alleges that the trial court erred by overruling his motion for additional disclosure by the state. Specifically, appellant wanted to know:

“A. Who was present when the lineup referred to in defendant’s exhibit ‘B’ took place?
B. When did the lineup referred to in defendant’s exhibit ‘B’ occur?
C. Where did the lineup referred to in defendant’s exhibit ‘B’ occur?
D. To whom were the suspects in the lineup referred to in defendant’s exhibit ‘B’ exhibited?”

On appeal, appellant contends that the state’s failure to disclose this information hampered his ability to discover what occurred at the January 21, 1976 lineup. These questions, contained in appellant’s interrogatories, were filed on August 11, 1976. On August 12,1976, appellant filed a motion for additional disclosure by the state. The fourth paragraph of appellant’s motion, filed just one day after his interrogatories, indicates that appellant in fact had the information, the disclosure of which he now asserts error on the part of the trial court for not compelling. This paragraph reads:

“4. Defendant calls attention to the fact that Defendant’s Exhibit B reflects that [victim’s name], the prosecuting witness in the above captioned cause, viewed a lineup, presumably with reference to the above captioned cause, on January 21, 1976, between 10:30 and 12:00 at the police station in St. Joseph, Missouri, and picked out someone other than the defendant. Defendant’s Exhibit B also indicates Lt. Pasley, R. Brown, J. Wright, and C. Hayes are ' the ‘Officers Conducting Showup.’ ”

From this paragraph, it is obvious that appellant knew (A) who was present at the lineup, (B) when the lineup occurred, (C) where the lineup occurred, and (D) to whom the suspects were exhibited. It cannot be said that appellant was hampered in his ability to discover what occurred at the lineup, nor that the refusal of the trial court to compel this information was prejudicial error.

Lastly, appellant alleges error on the part of the trial court in allowing Detective Brown to testify at the trial regarding what occurred at the lineup viewed by the victim. At a previous deposition Detective Brown testified that he was confused and could not recall who was present at the lineup. It appears from the record that even though the witness had not refreshed his memory before attending the deposition and conceded that he was somewhat confused, he was told by appellant’s counsel that he could not have the deposition taken at another time. At any rate, appellant did not make timely objection at trial on this ground, and does not now allege plain error on the part of the trial court. As in State v. Kelly, 539 S.W.2d 106, 110 (Mo. banc 1976), “The testimony complained of was admitted without objection and we accordingly rule that the alleged error was not preserved for appellate review.”

The judgment of the trial court is affirmed.

BARDGETT, C. J., and DONNELLY, RENDLEN, WELLIVER and MORGAN, JJ., concur.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . The case was tried October 4, 1976, at which time the foregoing were the applicable instructions.


source: Caselaw Access Project

author: PER CURIAM. SEILER, Judge,

license: Public Domain

text:
    Kurt W. EHLERT, Plaintiff, v. Lalia M. WARD, Appellant, v. HOUSING DEVELOPMENT CORPORATION AND INFORMATION CENTER, INC., Respondent.
    No. 61109.
    Supreme Court of Missouri, En Banc.
    Oct. 19, 1979.
    Rehearing Denied Nov. 14, 1979.

      Richard F. Halliburton, Legal Aid of Western Missouri, Kansas City, for appellant.
    James M. Ramsey, John F. Daniels, III, Kansas City, for respondent.
    Geraldine Azzata, National Consumer Law Center, Boston, Mass., Stephen S. Walters, Effie E. Forde, Legal Services Corp., Washington, D.C., Gayle C. Williams, Richard B. Teitelman, Legal Services of Eastern Missouri, Inc., St. Louis, for amicus curiae.
   PER CURIAM.

This case, involving only the cross-claim of Lalia M. Ward (appellant) against her co-defendant, Housing Development Corporation and Information Center, Inc. (HDCIC or respondent), was transferred to this court by our order after opinion by the Court of Appeals, Western District. In addition to supplemental briefs filed by the parties, three amici curiae have filed, with leave, separate briefs in support of appellant’s position. We have considered all briefs and the arguments and reach the same conclusion as the court of appeals for essentially the same reasons. Hence, we adopt most of its opinion authored by Jack P. Pritchard, Judge, as follows:

“Appellant sought by cross-claim to rescind her credit transaction with HDCIC consisting of a note secured by a deed of trust on her residence because of alleged violations of the Truth-in-Lending Act, 15 U.S.C.A., § 1601, et seq., and the * * * [Federal Reserve Board Regulation] Z, 12 C.F.R. § 226.1 et seq. Appellant filed a motion for summary judgment on her cross-claim upon a stipulation of facts, in which cross-claim she asked that [the amount] she had paid on the credit transaction be returned to her; that HDCIC be ordered to cancel the deed of trust; that she be given a judgment for $1,000, plus costs and reasonable attorney’s fees as provided by the Act. The trial court denied her requested relief, * * * entered judgment for HDCIC.

“The action began as a suit by Ehlert against appellant for the balance due him for repairing her residence. * * * After jury verdict against appellant on Ehlert’s claim, and an abandonment of her appeal [from that judgment], that controversy was compromised, according to the briefs.

“The stipulations of fact entered into by appellant and HDCIC are these: The note given by her to HDCIC was for $3,990, plus $564, obligating her to pay $4,554 in 120 monthly installments of $37.95 each. The note was secured by a deed of trust upon appellant’s residence. The purpose of the extension of credit was to finance $3,930 residential improvement for appellant. The note and deed of trust constituted a ‘consumer credit’ transaction, and HDCIC is a ‘creditor’ as defined in the Consumer Protection Act, and Regulation Z, which apply to the transaction here. That a ‘Truth-in-Lending Disclosure Statement’ was given appellant on June 27, 1974 (the date of the note and deed of trust), in which the following terms are typed and printed in capital letters: ‘AMOUNT FINANCED; FINANCE CHARGES; ANNUAL PERCENTAGE RATE; TOTAL NUMBER OF PAYMENTS; LATE PAYMENT CHARGE; MORTGAGE CLOSING COSTS; ESCROW AMOUNT; SECURED LOANS; BORROWERS; and APPLICATION NO.’ The ‘Truth-in-Lending Disclosure Statement’ does not contain the term ‘Total of Payments’ nor any similar disclosure of the sum of monthly periodic payments scheduled to repay the indebtedness. If that disclosure had been made, the figure would have been $4,554.00. The $3,990 typed in the block next to the term ‘Amount Financed’ in the disclosure statement includes $60.00 ‘Mortgage Closing Costs’, and $3,930, home improvement contract price, neither of which are part of the finance charge, and both were paid to appellant’s account or to another person on her behalf. The disclosure statement did not individually itemize what charges and costs were included in the ‘Amount Financed.’ On June 27, 1974, HDCIC gave appellant a Notice of Opportunity to Rescind on a separate sheet of paper, typed and printed in letters less than 12 point type and not in bold-faced print. On October 27, 1976, appellant sent HDCIC a ‘Notice of Election to Rescind Transaction’, with a letter to the same effect, declaring that the June 27, 1974, consumer credit transaction ‘to be rescinded, demanding return of all money paid to defendant HDCIC pursuant to the transaction, demanding cancellation of the Deed of Trust and tendering back the principal balance of the loan upon timely compliance with the above two demands.’ On October 29, 1976, HDCIC acknowledged receipt of the notice and letter and stated that it did not consider the rescission effective. Appellant has since made her monthly payments into a special fund set up by her attorney and is current in her payments.

“There are here several violations of the provision of Regulation Z. First, 12 C.F.R. § 226.6(a), requires that where the terms ‘finance charge’ and ‘annual percentage rate’ are required to be used, they shall be printed more conspicuously than other required terminology. According to the stipulation of facts and photocopies of the documents, these terms were not printed more conspicuously than others. Although technical, these were violations of the Truth-in-Lending Act, which gave rise to appellant’s right to rescind the credit transaction. See Powers v. Sims & Levin Realtors, 396 F.Supp. 12, 19[7] (E.D.Va.1975), where the court held that underlining the capitalized letters ‘finance charges ’ and ‘annual percentage rate’ on the disclosure statement did not comply with the regulation’s requirement that the terms be printed more conspicuously than those used for any other disclosures. The court also held that pluralizing ‘Total Finance Charges’ resulted in a failure to state the total amount of finance charge using the term ‘finance charge’ which was a violation of 12 C.F.R., § 226.8(d)(3). Note that here the term ‘FINANCE CHARGES’ was used, thus implying that there was more than one such charge.

“Nowhere on the disclosure statement is there the term ‘total payments’ or any figures representing that amount. This is a violation of 12 C.F.R., § 226.8(b)(3).

“The ‘amount financed’ is shown to be $3,990, which consists of the home improvement contract price, plus the total of mortgage closing costs shown above it of $60. The amount financed does not reflect as to what is included, i. e., the $3,930 contract price and the mortgage closing costs. A similar omission was held to be violative of 12 C.F.R., § 226.8(d)(1) in Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976) (Aff’d on rehearing, [5 Cir.,] 552 F.2d 1142). See also, Liner v. Aetna Finance Co., 555 F.2d 1241 (5th Cir. 1977).

“The blank providing that the date of monthly payments other than the first is not filled in. This is violative of 12 C.F.R. § 226.8(b)(3), requiring that ‘due dates or periods of payments scheduled to repay the indebtedness’ be disclosed.

“The failure to provide in 12 point type a notice of opportunity to rescind the transaction, as required by 12 C.F.R., § 226.-9, is a violation, it being admitted by respondent that the notice given (although in the words of the regulation) is in type of less than 12 points.

“The purpose of the Truth-in-Lending Act is declared by Congress as set forth in 15 USCA § 1601(a): ‘ * * * It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, * * The statute is remedial and should be construed liberally, Johnson v. McCrackin-Sturman Ford, 527 F.2d 257 (3rd Cir. 1975), and in favor of the consumer, Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975). It was said in Pennino v. Morris Kirschman & Co., Inc., 526 F.2d 367 (5th Cir. 1976), that Congress did not intend creditors to escape liability where only technical violations of the subchapter were involved (as here). Under the facts as stipulated, and the foregoing cases, appellant was entitled to rescind the credit transaction, and the trial court erred in not granting her the requested relief of rescission, including the return of all monies paid by her to respondent and the cancellation of the promissory note and the deed of trust upon her property.

“The matters remain, however, of whether appellant, under the facts, is entitled to retain the principal proceeds of the loan under 12 C.F.R. § 226.9(a); and 15 USCA, § 1635, or whether she must make a tender of it as a condition to the relief by way of rescission. In Johnson v. United Rys. Co. of St. Louis, [227 Mo. 423,] 127 S.W. 63, 71 (Mo.1910), the court said, ‘It is clear that rescission looks to restoring the status quo. In rescission payments made and benefits conferred must be returned. * * * A specific performance is somewhat of grace, the reciprocal remedy of rescission is also administered by the exercise of a just and sound discretion, precisely as is injunction.’ In Githens v. Butler County, [350 Mo. 295,] 165 S.W.2d 650 (Mo.1942), where the court set aside a deed to a county judge’s wife, the court said, page 653 [9, 10], ‘But when the purpose of the action or cross-bill is cancellation it is not a condition precedent to the party’s right to maintain the action that he tender into court the consideration he has received if he offers, in his petition, to make restitution or put the other party in status quo. The condition precedent is upon the granting of the relief demanded and the court has the power to adjust the equities of the case and impose such terms as may be proper. (Citing authority).’ Thus, it is clear in Missouri that rescission is of equitable cognizance. The federal courts have applied a requirement of tender of consideration received to an obligor who is entitled to rescission by reason of violations of the Truth-in-Lending Act and Regulation Z. In Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974), there was an issue of conditioning the relief of a grant of rescission upon the debtor’s tendering the principal of the loan he had received. The court said, page 862[4], ‘In Eby v. Reb Realty, Inc., supra [495 F.2d 646 (9th Cir. 1974)], we recognized that the interaction of the right to rescission and the civil penalty provision * * * can sometimes result in an unduly harsh penalty for violations of the Truth-in-Lending Act. This is particularly true where, as appears to be the case here, the decree granting rescission does not condition the relief upon the debtor’s restoration of consideration, the creditor is reduced to the status of an unsecured creditor, and the debts are judgment proof.’ (This is because 15 USCA 1635(b) requires the creditor within 10 days of the debtor’s notice of rescission, first to return to him money or property given, and upon the creditor’s performance of his obligations the debtor shall return the property received by him.) The Palmer court went on to say, ‘[W]hen an obligor seeks both to rescind and to recover statutory penalty and attorney fees, the district court has equitable power to grant both forms of relief; the court may condition the granting of rescission on the debtor’s compliance with the court’s order to tender to the creditor the principal of the loan that the debtor has received.’ Note also the concurring opinion in Palmer to the effect that if rescission is demanded and effectuated without litigation, the debtor is required to return the property or its reasonable value to the creditor, indicating a clear Congressional intent that there not be a complete windfall to the * * * [debtor]. See also LaGrone v. Johnson, 534 F.2d 1360[5, 6] (9th Cir. 1976); Ljepava v. M.L.S.C. Properties, Inc., 511 F.2d 935, 944 (9th Cir. 1975); and note in this connection Powers v. Sims & Levin Realtors, 542 F.2d 1216 (4th Cir. 1976).

“Appellant relies heavily upon Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974). There, Sosa sued both Fite, the siding contractor and Tropical, both of whom were statutory creditors. Sosa offered to return the siding to defendants, it being shoddily installed, but the offer fell upon deaf ears, and they never did offer to rectify the situation. There the court refused to require Sosa to return the property or its reasonable value as a condition to relief as was decreed by the trial court. Here, appellant never did make her contractor, Ehlert, a party to the rescission suit. Her counter-claim against him was basically for breach of contract, and she lost that matter before a jury. Upon receipt of the notice of rescission, respondent replied that it did not consider the rescission effective, and further advised appellant’s counsel that a review of the forms and procedures used by HDCIC indicates that it has substantially complied with all of the terms and provisions of the Truth-in-Lending Act, and ‘Accordingly, HDCIC is of the belief that Ms. Ward has no right to rescind the transaction at this time.’ HDCIC also noted the litigation pending between Ehlert and appellant, its own escrow holding, and the fact that if it honored the request for rescission, it would be exposing itself ‘to certain liabilities as relates to any claims Mr. Ehlert might have. As you can see, the only way that HDCIC can fully resolve all of these issues is to proceed with the pending litigation and obtain a judicial determination of the rights and interest of all the parties in this matter.’ Appellant’s cross-claim was thereafter filed on December 17, 1976, thus thrusting the matter into court for a judicial determination of the alleged violations of the Act, respondent having the right to pursue that determination. These facts distinguish the Sosa case, which granted rescission to Sosa without a return of the property received by her upon facts showing the contractor-creditor defendant had not performed his contract, and neither defendant ever acknowledged Sosa’s request for rescission, there being also flagrant lack of disclosure of items required by the Act.

“Inasmuch as there were substantial violations of the Act, although technical in nature, appellant is entitled to the penalty of 15 USCA § 1640(a)(2)(A)(i). That entitlement is not foreclosed by appellant’s election to pursue rescission under § 1635, as contended by respondent. That issue was ruled in Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir. 1974). See also Palmer v. Wilson, supra; Sellers v. Wollman, supra. The $1,000 penalty sought here is less than twice the amount of the finance charge, and is allowable under § 1640.

“The last question is whether appellant is entitled to an allowance for attorney’s fees. She was and is represented by the Legal Aid of Western Missouri, the counsel of which are paid by various federal, state and local grants so that indigent parties, such as appellant, may have legal representation without cost. Several federal cases have allowed attorney’s fees to consumers even though they were represented by legal services offices upon the ground that the Act does not make the award contingent upon the plaintiff’s obligation to pay her attorney or whether a fee was in fact charged. Manning v. Princeton Consumer Discount Co., Inc., 533 F.2d 102, 106[6] (3rd Cir. 1976); Sellers v. Wollman, supra; Campbell v. Liberty Financial Planning, Inc., 422 F.Supp. 1386 (D.C.Neb.1976); Gillard v. Aetna Finance Co., Inc., 414 F.Supp. 737 (E.D.La.1976); Doggett v. Ritter Finance Co. of Louisa, 384 F.Supp. 150 (W.S.[D].Va.1974) [modified on other grounds, [528] F.2d 860]; and Jones v. Seldon’s Furniture Warehouse, Inc., 357 F.Supp. 886 (E.D.Va.1973). The latter case sets forth reason why attorney’s fees should be allowed even though the services are rendered through a legal aid society, but they are not persuasive to this court. In Hannon v. Security Nat. Bank, 537 F.2d 327 (9th Cir. 1976), the court observed that the purpose behind granting attorney’s fees is to make a litigant whole and to facilitate private enforcement of the Act.” Because appellant has not paid or become obligated to pay attorney fees to the Legal Aid of Western Missouri, an award of attorney fees to her is not required to make her whole. An award to her would impose a penalty on respondent so that she might receive an unjust enrichment. Amici suggest that attorney fees be awarded to appellant’s attorneys; not to appellant. This would, of course, eliminate unjust enrichment of appellant. However, the statute (15 U.S.C.A. § 1640(a)(3)) provides that the potential liability of the creditor for attorney fees is to the debtor; not to the debt- or’s attorney. Moreover, the attorneys are not parties to this suit; they sought no relief other than for their client, and a judgment in their favor for fees would be beyond the scope of the pleadings and void.

The judgment of the trial court is reversed with directions as to: (1) rescission of the contract between appellant and respondent; and (2) allowance of the statutory penalty. It is affirmed as to the denial of attorney fees. The trial court is, accordingly, directed to enter judgment on the cross-claim in favor of appellant and against respondent as follows: (1) rescind the contract or “credit transaction” between these parties, (2) for $1,000.00 as statutory penalty, (3) for the costs; all subject to and on these conditions: first, that the court determine and respondent pay into the registry of the court for the benefit of appellant all funds paid to it by appellant on account of their contract, plus $1,000.00 awarded as penalty; second, that appellant pay into the registry of the court for the benefit of respondent $3,990.00, the principal of the loan made to her by respondent; third, that the clerk of the court disburse to appellant the sum so deposited for her benefit and, at the same time, disburse to respondent the sum so deposited for its benefit; fourth, that appellant satisfy the record of the judgment at the time of receipt of the funds disbursed to her; and fifth, that respondent immediately thereafter cancel and deliver to appellant, or her authorized representative, her note, and satisfy the record of the deed of trust held by it as security for appellant’s note, and file with the clerk proof of such satisfaction.

DONNELLY, RENDLEN, and WELLIVER, JJ., and FINCH and HENLEY, Senior Judge, concur.

SEILER, J., concurs in part and dissents in part in separate opinion filed.

MORGAN, J., concurs in separate concurring and dissenting opinion of SEILER, J.

BARDGETT, C. J., not sitting.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

SEILER, Judge,

concurring in part and dissenting in part.

I concur in the principal opinion except as to that part which denies appellant attorney’s fees. The clear language of the Truth in Lending Act directs that “any creditor who fails to comply with any requirement is liable . . . in an amount equal to the sum of [actual damages and in individual actions twice the finance charges and] ... (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1640(a)(3) (1976) (emphasis added). Just last year, in a case dealing with attorney’s fees in civil rights actions, the United States Supreme Court stated that this section of the Truth in Lending Act made fee awards “mandatory for prevailing plaintiffs.” Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 415, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

The majority opinion cites Hannon v. Security National Bank, 537 F.2d 327 (9th Cir. 1976) as authority for denying attorney’s fees to successful litigants who are represented by legal aid societies. In Hannon, however, the litigant (a credit card holder) was a law school graduate who was not licensed to practice law, but who successfully represented himself. No attorney had been retained and it was for that reason no attorney’s fee was allowed. This is much different from the present case. The Ninth Circuit stated the issue in Hannon as follows:

“We agree that the statute should be liberally construed to encourage private enforcement. [Citations omitted.] However, the question before us is whether that liberal interpretation should be extended to allow recovery of attorney’s fees when no attorney has been retained.”

537 F.2d at 328. In fact, Hannon distinguishes the very different case presented by plaintiffs who are represented by legal aid societies and discussed the cases which have awarded fees directly to legal aid societies. The Hannon court noted that

“The reasoning behind these cases is that where the assistance of an attorney is a practical necessity, Congress did not intend that vindication of the rights guaranteed by statute depend upon plaintiff’s having economic resources to retain an attorney or else being compelled to seek out charitable assistance. The payment is made not to the litigants, but directly to the attorney as reimbursement for services actually rendered.”

537 F.2d 328-29, n. 1 (emphasis added). Clearly, the Hannon decision is distinguishable on the facts and has no application to the type of case before us.

The majority opinion dismisses as “unpersuasive” the dozens of cases directing that attorney’s fees be paid to legal aid societies representing successful plaintiffs in Truth in Lending cases. “[P]laintiffs should not be denied attorney’s fees because their attorney was employed by a legal aid society. Section 1640(a)(2) directs their award, and such an award is not contingent upon an obligation to pay an attorney, or the fact that no fee was charged.” Sellers v. Wollman, 510 F.2d 119, 123 (5th Cir. 1975) (emphasis added). A creditor who fails to provide the information required under the act “is liable ‘for a reasonable attorney’s fee,’ ” and the “fee may be awarded to a legal services office.” Manning v. Princeton Consumer Discount Co., 533 F.2d 102, 106 (3rd Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976). “The fact that plaintiff’s counsel is employed by a Legal Aid Society does not affect the award of attorney’s fees.” Campbell v. Liberty Financial Planning, Inc., 422 F.Supp. 1386 (D.Neb.1976). Twenty-eight of twenty-nine federal courts dealing with a prevailing plaintiff represented by a legal aid society, including three federal circuit court of appeals, have awarded attorney’s fees to the legal aid society. The twenty-ninth federal case, Engle v. Shapert Const. Co., 443 F.Supp. 1383 (M.D.Pa.1978), while denying an award of attorney’s fees because of extenuating circumstances in the case, is a district court decision and must be considered of dubious weight because it is in the Third Circuit, which rendered the Manning decision, supra, one of the strongest decisions upholding the awarding of attorney’s fees to legal aid societies. Evidently, for whatever reason, the district court decision was not appealed. One state appellate court has considered this question and it is in accord with the federal cases awarding attorney’s fees to legal aid societies. Robert Levitan & Sons Inc. v. Francis, 88 Misc.2d 125, 387 N.Y.S.2d 35 (App.Term 1976).

The majority opinion finds that an award of attorney’s fees would impose a penalty on respondent and unjustly enrich appellant. If § 1640(a)(3), by making a violator of the Act liable for “the costs of the action, together with a reasonable attorney’s fee”, imposes a penalty on respondent, it is at the direction of Congress in the clear language of the Act. Statutory awards of attorney’s fees to successful plaintiffs are meant to “deter the defendant and others like him from the wrongful action and to induce settlement in future cases without the necessity of resorting to the courts.” Note, Awards of Attorney’s Fees to Legal Aid Offices, 87 Harv.L.Rev. 411, 417 (1973). The majority opinion frustrates the purpose of the statutory remedy afforded successful plaintiffs. As to the charge of unjust enrichment, the cases discussed above require that attorney’s fees be paid directly to the legal aid society and, therefore, appellant will not be unjustly enriched. Moreover, federal regulations require that when a legal fee is awarded in a case represented by a legal aid society receiving federal funding, the legal fee “shall be remitted promptly” to the legal aid society. 45 C.F.R. § 1609.5(b) (1978). Legal Aid of Western Missouri receives substantial federal funding and therefore this federal regulation requires appellant in any event to remit awarded legal fees to Legal Aid. If the majority believes, as it states above, that because the attorneys are not parties to the suit that an award of attorney’s fees cannot be made to Legal Aid of Western Missouri directly, then the Court may order that appellant pay the fees to Legal Aid. The majority opinion already orders appellant to pay funds into the registry of the trial court. An order can be written to require appellant to pay the attorney’s fees into the registry of the trial court and that the clerk of the court disburse to Legal Aid the sum so deposited for its benefit.

Finally, what the majority opinion overlooks is that a refusal to award attorney’s fees to appellant unjustly enriches respondent. The respondent, having violated the statute is required by § 1640(a)(3) to pay the costs of the action and reasonable attorney’s fees. The majority opinion indicates that violators of the statute will be relieved of part of this statutory liability if they are fortuitous enough to be sued by an indigent plaintiff who must turn to a legal aid society for representation. The majority opinion tends to frustrate the very important framework of private enforcement of the Act. The attorney’s fee provision in the Act represents a congressional plan of private enforcement and an acknowledgement of the benefit to the public derived by successful litigants. Ratner v. Chemical Bank New York Trust Co., 329 F.Supp. 270, 280-81 (S.D.N.Y.1971). The majority opinion does not afford a successful litigant represented by a legal aid society the full scope of remedies provided by the Act. In relieving respondent of the statutory liability for attorney’s fees, the majority opinion penalizes the legal aid society and its indigent clients by requiring them to absorb the cost of enforcing the statute. The legal services were not “free” from the point of view of Legal Aid of Western Missouri; they were obtained at the cost of decreasing the services otherwise available for other indigent clients. See generally, Awards of Attorney’s Fees to Legal Aid Offices, supra, 87 Harv.L.Rev. 419 — 421. An award of attorney’s fees in this case would reimburse those actually burdened by this suit by restoring displaced legal services to indigent clients who otherwise would have received them. Moreover, legal aid societies in Missouri will be less inclined to take suits under the Truth in Lending Act if they are denied the statutory award of attorney’s fees otherwise available to counsel for a prevailing plaintiff. The congressional design for private enforcement of the Act, at the expense of the violators and without regard to the economic resources of the plaintiff, is not followed by the majority opinion. I respectfully dissent in this regard.

      . The Supreme Court listed the following statutes as providing for a mandatory award of attorney’s fees to prevailing plaintiffs: Clayton Act, 15 U.S.C. § 15 (1976): Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 216(b) (1976); Packers and Stockyards Act, 7 U.S.C. § 210ffi (1976); Truth in Lending Act, 15 U.S.C. § 1640(a) (1976); and Merchant Marine Act of 1936, 46 U.S.C. § 1227 (1976). 434 U.S. at 415 n.5, 98 S.Ct. 694 (emphasis added).

      . See, e. g. Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3rd Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976); Powers v. Sims and Levins, 542 F.2d 1216 (4th Cir. 1976); Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975); Jones v. Allied Loans, Inc., 447 F.Supp. 1121 (D.S.C.1977); Ecenrode v. Household Finance Corp. of South Dover, 422 F.Supp. 1327 (D.Del.1976); Gillard v. Aetna Finance Co., 414 F.Supp. 737 (E.D.La.1976); Doggett v. Ritter Finance Co. of Louisa, 384 F.Supp. 150 (W.D.Va.1974), modified on other grounds, 528 F.2d 860 (4th Cir. 1975); and Jones v. Seldon’s Furniture Warehouse, Inc., 357 F.Supp. 886 (E.D.Va.1973). Additional cases are reported in the CCH Consumer Credit Guide, the Poverty Law Reporter and the Clearinghouse Review.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Wyman DENTMAN, Appellant.
    No. 39938.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    Robert C. Babione, Public Defender, James B. Ashwell, Andy Kotschar, Asst. Public Defenders, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from the judgment of conviction by a jury to the charge of attempted burglary second degree, §§ 556.-150(3), 560.045, 560.095 RSMo. 1969. Subsequent to the jury verdict, the court sentenced defendant under the Second Offender Act to imprisonment in the Department of Corrections for a term of four years.

The record reveals the following scenario culminating in defendant’s criminal charge: On the night of April 3 and the early morning of April 4, 1977, Officer Martin Thiml-ing of the St. Louis Police Department was assigned to foot patrol in the downtown area of the city. At approximately 12:15 a. m. Officer Thimling, while walking east in the 700 block of Olive Street, observed several times a four door “brown over white” automobile occupied by three males as it slowly circled that block. Finally the car stopped briefly at approximately 720 Olive Street. At this time the officer noted the description and license plate number of the car and as much of a description of the occupants as possible. Next Officer Thiml-ing, after concealing himself in the recessed doorway of 721 Olive, again observed the car as it proceeded to park in front of 612 Olive Street, the location of the Union Jack Clothing Store. Officer Thimling then watched the driver of the car leave the car, open the trunk of the vehicle, and return to the driver’s side of the car and stand at the open car door. Thimling further testified that defendant Dentman exited from the front passenger door carrying an “elongated object, approximately 18-20 inches, dark in color.” The third man exited from the right rear door of the vehicle. Thimling related that he was approximately 60-70 yards from the vehicle during this observation.

The two men then left the officer’s sight while at the recessed doorway of the Union Jack Store. Thimling continued to observe the driver. When he turned his back to Thimling, the officer left the doorway and ran in the driver’s direction. The driver noticed Thimling when he was approximately 50 feet from the car and he then started to yell. The two men responded and exited the doorway. The third man got in the front seat of the car and shut the door. Dentman, who no longer had anything in his hand as he exited the doorway, started for the rear door, still open. He stopped and closed the trunk lid. Thimling by this time was approximately 45 feet from the car. Dentman did not enter the car before it started moving. He lunged for the rear door, took hold of the car, and was dragged along for approximately one block while the car was moving. Thimling testified that Dentman was facing the rear of the car — in the officer’s direction — as the car moved away. The officer testified that he was able to discern that defendant was wearing a blue denim jumpsuit.

Thimling broadcast a description of the vehicle, license plate number and description of the occupants as best available. The officer then discovered upon return to the Union Jack Store that a pry bar was jammed in between the doors and that the door glass had been partially cracked.

In response to Thimling’s broadcast, a “brown over white” vehicle, fitting the description and bearing the license number as Thimling announced it, was stopped at approximately 1:03 a. m. several miles north of the Olive Street location. The three occupants were then taken to the 4th District Police Station. A confrontation was conducted there between Thimling and Dentman and the other two men. Officer Thimling identified the three men as having been present at the Union Jack Store that night. No other suspects were at the station from whom Thimling might have made his identification.

Defendant first challenges the sufficiency of the information. The information charged that defendant and two other men “did feloniously and burglariously attempt to break and enter a store . . . situated at 612 Olive Street with the intent then and there to steal, take and carry away certain goods . . . when they were intercepted and prevented in the execution of their felonious and burglarious intent, and failed in the perpetration thereof;

This offense was committed prior to the effective date of the new Criminal Code. To properly charge an attempt to commit a crime, the information must have contained three elements: (1) the intention to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. § 556.150 RSMo. 1969; State v. Fletcher, 512 S.W.2d 253[2] (Mo.App.1974). Defendant argues that the information charging him fails in that there is no allegation of an overt act toward the commission of the burglary.

The Supreme Court held in State v. Zammar, 305 S.W.2d 441[3, 4] (Mo.1957) that the method of gaining entry by forcibly bursting or breaking is important only in first degree burglary; that the allegation “break and enter” is sufficient in a second degree burglary charge. We believe that the allegation in this case “ . . . attempt to break and enter a store . . . ” is sufficient to generally allege the performance of some act toward the commission of the crime: to-wit, burglary second degree. We must admit that we find no Missouri case law approving or disapproving this language. We do find support, however, in the “Missouri Approved Charges — Criminal”.

These indictment and information forms have been approved and adopted by the Supreme Court as proper for use in charges filed under the new Criminal Code.

The present criminal code attempt statute differs in language from that of the prior legislation, § 556.150 RSMo. 1969. The new statute requires, in order to be found guilty of attempt, that the actor perform “any act which is a substantial step toward the commission of the offense”. The former statute required proof of commission of “any act toward the commission of [the] offense”.

The approved form on attempt is MACH-CR No. 18.02. The “Notes on Use” accompanying this form describe the language for the charge:

4. The conduct required for an attempt is a “substantial step” toward the commission of the object crime. If the conduct constituting the substantial step is actually trying to achieve the result of the object crime, it may be described in general terms, . . . such as “tried to . .

We see no difference in alleging “tried to” or “attempted to”.

Defendant here has been apprised by this information that he is charged with attempting to break and enter — an act which is actually trying to achieve the result of the object crime, burglary second degree — the Union Jack Store with the intent to steal goods. The charge is definite and affords defendant an opportunity to meet the charge. Had defendant thought that he needed further enlightenment on the details, he could have availed himself of Criminal Rule 24.03 and requested a Bill of Particulars. State v. Rentschler, 444 S.W.2d 453, 455 (Mo.1969).

A review of the evidence also shows that the state made a strong case on the charge of attempt with intent to commit burglary in the second degree. Defendant’s charge as to the sufficiency of the evidence fails.

Defendant next contends that the court “erred in overruling the defendant’s motion to suppress identification testimony of Officer Thimling and admitting into evidence Officer Thimling’s in-court identification testimony. The testimony of Police Officer Thimling was based on a suggestive pre-trial one-on-one confrontation with the defendant at the Fourth District Police Station. These procedures were so suggestive and conducive to irreparable mistaken identification as to be a violation of defendant’s rights to due process of law.”

Judge McMillian, speaking for this court in Simms v. State, 568 S.W.2d 801 (Mo.App.1978), wherein defendant, sitting handcuffed in the back of a patrol car shortly after the arrest, was viewed and identified by the victim, found such identification procedure proper. Judge McMillian speaking for our court said at page 801:

It is . . . well settled in Missouri that “it is not improper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.” [citations omitted]

See also State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973). The circumstances in the instant case are somewhat similar to those in State v. Jordan, 506 S.W.2d 74 (Mo.App.1974) wherein the police officers observed the burglars fleeing from the scene. They were apprehended a few blocks away, and they were returned to the scene where the officers made an identification. The only difference between the instant case and Jordan is that the so called “show up” was at the police station and not at the scene. Officer Thimling was positive in his identification, and the identification occurred within approximately 30 minutes of his observation. The procedure was neither im-permissibly suggestive nor unfair. Moreover, even if the show-up confrontation had been improperly conducted, in this case the officer had an independent basis to support his in-court identification. State v. Little, 572 S.W.2d 871 (Mo.App.1978).

Affirmed.

GUNN and CRIST, JJ., concur.

      . Section 564.011, RSMo. 1978 provides:
      1. A person is guilty of attempt to commit an offense when with the purpose of committing the offense, he does any act which is a substantial step toward the commission of the offense. A “substantial step” is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Andrew Jackson SALES, Defendant-Appellant.
    No. 11240.
    Missouri Court of Appeals, Southern District, Division Three.
    Sept. 13, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 9, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Kenneth G. Gibbar, Benton, for defendant-appellant.
   GREENE, Judge.

On November 15, 1978, defendant Andrew Jackson Sales was convicted, after jury trial, in Scott County, Missouri, of the crime of burglary in the second degree, § 560.070, RSMo 1969, V.A.M.S. After the trial, defendant was asked by the trial judge if he wanted to file a motion for a new trial, and defendant replied affirmatively. The trial judge then said, “We will grant the defendant ten days within which to file a motion for new trial and will set the motion for hearing on Thursday, November 30th, and we’ll also set that date for sentencing if necessary”. Defendant did not file a motion for new trial until November 30, 1978. No extension of time for filing of the motion had been requested by defendant or granted by the trial court.

On December 4,1978, the trial court overruled the out-of-time motion and sentenced defendant to 7 years in the custody of the Missouri Department of Corrections, pursuant to the second offender act. Defendant then appealed.

As grounds for appeal, defendant asserts that the trial court erred 1) in overruling defendant’s motion to quash the jury panel for the reason that it did not represent a fair cross segment of the community; 2) in finding that defendant was a second offender in that there was no evidence that defendant had been imprisoned prior to the filing of the charge in this case; 3) by not declaring a mistrial by reason of prejudicial remarks made by the prosecuting attorney in his opening statement and 4) in his closing argument.

A motion for new trial must be filed before judgment and within 10 days after the verdict is returned. Rule 27.20(a). The verdict in this case was returned November 15, 1978, arid the motion for new trial was not filed until November 30, 1978. The 10-day limitation set out in the rule is mandatory and can only be extended upon timely application to the trial court, which was not done here. State v. Cantrell, 403 S.W.2d 647, 649 (Mo.1966). Therefore, none of the four points raised by defendant in his brief have been preserved for appellate review.

We decline to review under the plain error rule, Rule 27.20(c), as it is obvious, from reading the transcript, that defendant did not suffer from any manifest injustice or miscarriage of justice by reason of the rulings of the trial court.

We have reviewed the sufficiency of the information, verdict, judgment and sentence and find them proper.

The judgment is affirmed.

All concur.


author: PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thaddeus BUFFINGTON, Defendant-Appellant.
    No. 10997.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 19, 1979.
    Rehearing Denied Oct. 9, 1979.

      John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Willard B. Bunch, David B. Dysart, Duncan, Russell & Bunch, Kansas City, for defendant-appellant.
   PREWITT, Judge.

Defendant was convicted, after a jury trial in Greene County Circuit Court, of stealing a motor vehicle in Kansas and bringing it into Missouri in violation of § 541.040 RSMo 1969. He was sentenced to five years imprisonment.

On September 13, 1976, a blue 1977 Lincoln Continental with a white top and a “moon-roof” disappeared from Bob Sight Lincoln Mercury, Inc. in Overland Park, Kansas, a suburb of Kansas City. Shortly before the vehicle was missing, defendant was seen in the showroom looking at other cars, and then later looking over the missing vehicle. It was parked near the service area with the keys in it.

On September 15, 1976, a police officer for the City of Maryville, Missouri, was looking for stolen stereo speakers and talked to defendant at an apartment house. On the apartment house parking lot was a white over blue Lincoln Continental with a “moon-roof”. Defendant stated that it was his car, and he had a key to the ignition, but that he had just purchased the vehicle and did not have a trunk key. Defendant said he did not have registration papers for the vehicle as the dealer was awaiting an invoice, and that he was given a blank Missouri title to use in place of the registration. It was dark, and the officer took down the vehicle information number with aid of a street light. He wrote the number down as 7Y32A304920. The number was given to the dispatcher at the police station to put into a computer system to see if the vehicle was reported as stolen. A reply came back that it was not. The number of the Lincoln Continental taken from Bob Sight Lincoln Mercury, Inc. was 7Y82A804920. The officer identified three photographs of the Lin-coin Continental missing from Bob Sight Lincoln Mercury, Inc. as the vehicle that he saw on the apartment parking lot.

On September 17,1976, David R. Spencer, a special agent for the Federal Bureau of Investigation, was in Springfield, Missouri acting as a purchaser of stolen property. He received a call from Kansas City, Missouri inquiring if he would like to purchase a stolen 1977 Lincoln Continental with a blue exterior, white top and blue interior. The next morning Spencer called back and agreed to purchase the vehicle for $3,500. He was told that “Bob” would be down with the vehicle in approximately five hours. Agent Spencer was asked by defendant’s counsel if he was told whether anyone else would come down with Bob. After checking his notes, the witness replied: “He referred to them in the plural, stating ‘they’ ”. At 10:32 p. m., on September 18, 1976, Agent Spencer received a call from Bob, who told him that the vehicle was parked at a local nightclub next to a Cadillac. He described the vehicle as being a white over blue Lincoln Continental with a “sun-roof or moon-roof”. Agent Spencer then went to see the vehicle and observed that it had a Kansas license plate. He then met with Bob and defendant at a Springfield restaurant. He had known Bob before but had not met defendant. He was with them at the restaurant approximately forty to forty-five minutes. All his conversation was with Bob and not defendant. Spencer then went to a different Springfield nightclub and took possession of the Lincoln Continental. Bob gave him the keys. He drove it to a storage place and then returned and paid Bob $3,500 in cash. Defendant and two other persons were with Bob when payment was made. They then got into another vehicle and left. The motor vehicle identification number of this Lincoln Continental was the same as the vehicle missing from the car dealership in Overland Park, Kansas.

Defendant claims two points of error by the trial court. He first contends that the trial court erred in overruling his motion for acquittal, “since no evidence was produced which established defendant brought a stolen motor vehicle into Greene County, Missouri”. In testing whether the evidence is sufficient, the evidence and all favorable inferences must be considered in the light most favorable to the State and all evidence and inferences to the contrary disregarded. State v. Sherrill, 496 S.W.2d 321, 323 (Mo.App.1973). We determine if there is sufficient substantial evidence to support the verdict, not weigh the evidence to determine if the charge has been proven beyond a reasonable doubt. That is for the jury to determine. State v. Sherrill, supra.

There was no direct evidence that defendant stole and brought the vehicle into Greene County, Missouri, as the jury was required to find. However, any fact can be established by circumstantial evidence. State v. Chase, 444 S.W.2d 398, 402 (Mo.banc 1969). While the circumstances must be such as are inconsistent with defendant’s innocence, it is not necessary that they be absolutely conclusive of his guilt, and the evidence need not demonstrate an absolute impossibility of innocence. State v. Taylor, 445 S.W.2d 282, 284 (Mo.1969). The jury was justified in finding that defendant did steal the vehicle. There was evidence from which they could find that he was on the premises and looking at the vehicle just before it disappeared. They could find that he had possession of it in Maryville two days after it was taken. Recent possession of stolen property is a circumstance from which guilt may be inferred. State v. Lewis, 482 S.W.2d 436, 437 (Mo.1972); State v. Chase, supra, 444 S.W.2d at 402-403. In Chase, the defendant was on the premises of a jewelry store looking at rings just before a ring disappeared. The ring was found in his car shortly after he was removed from it fourteen days later. The presence on the premises with opportunity to have taken it and possession of the ring were held sufficient to sustain a conviction. Here the jury could find defendant was on the premises, was in a position to have taken the vehicle, and had possession two days later. If they so believed, they could find he stole it.

Defendant was still in Maryville with the vehicle on September 16, 1976. The following day, in Kansas City, a call was placed to Agent Spencer offering to sell the vehicle to him. Agent Spencer was told the vehicle would be brought down. He was told that “they” would be bringing it. When he received a call to go look at the vehicle in Springfield, he was told that “we” are at the nightclub. Defendant was present when Agent Spencer discussed the vehicle with Bob and was present when payment was made. Defendant argues that there was no evidence that he had ever driven the vehicle or received any of the money. There was evidence that he admitted possession and claimed ownership of the vehicle on September 15th in Maryville and had a key to the door. He was in Springfield when the vehicle was there. He was present when the sale was discussed and present when the money changed hands. He was with the person who delivered possession of the vehicle and received the money. If defendant stole the vehicle, it follows that he would have had an interest in its disposition. No other reason or explanation was given for his being present with Bob at these times. The jury could have determined that he brought, or participated in bringing, the vehicle to Greene County for the purpose of resale. Defendant had recent possession of the car, he claimed ownership of it, he was present when the sale was discussed, when possession was given and when payment was made. Presence, companionship, and conduct before and after an offense are circumstances from which participation in a crime may be inferred. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977). The circumstances were such that a jury would be justified in finding that defendant participated in the vehicle being brought to Greene County, Missouri. We rule that the evidence was sufficient to submit the issue to the jury.

Defendant’s second point is that the trial court erred in giving Instruction No. 6, as there was insufficient evidence that the vehicle was brought into Greene County, Missouri by the defendant, as required by-the instruction. In considering defendant’s first point, we have determined that the evidence was sufficient. Defendant also contends that MAI-CR 2.12 should not have been used as a part of Instruction No. 6. Note 5 to MAI-CR 2.10 states that 2.12 “should be used where it is not clear from the evidence whether defendant acted alone or with another or others.” Whether one or more persons participated in the theft and bringing the vehicle to Greene County is not known. There was evidence that would indicate others were involved later. Defendant was with Bob at the restaurant and later two others when payment was received. Agent Spencer was told that “they” would be bringing the vehicle to Springfield. When they arrived he was told that “we” were at a nightclub. It is logical that at least two people would have been used in the transfer of possession, one to drive the stolen vehicle, and another to provide a second vehicle to return the driver. Defendant and Bob left the delivery point in another automobile. The evidence was not clear whether defendant acted alone or with others, so the use of MAI — CR 2.12 was proper.

Even had MAI-CR 2.12 been improperly used, it would not have justified a reversal in this case. Note 5 to MAI-CR 2.10 further states:

“The unnecessary use of these instructions [2.10, 2.12, 2.14] will not be deemed prejudicial error in absence of a showing of prejudice under the particular circumstances of the case!”

Defendant fails to demonstrate any basis that the use of 2.12 resulted in prejudice to him. The information charged defendant and another with stealing the vehicle and bringing it into Greene County. Instruction No. 6 was consistent with the information and the evidence. The giving of the instruction was not error.

The judgment is affirmed.

All concur, except GREENE, J., recused.

      . All references to MAI-CR are to those ii i effect on March 20, 1978, the day of trial.


author: CLARK, Judge.

text:
    Gerald BODDE, d/b/a Gerald Bodde & Sons, Respondent, v. James F. BURNHAM and Janeen Burnham, Appellants.
    No. KCD 30301.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Michael Paul Harris, St. Joseph, for appellants.

      Richard A. Heider, Stephen J. Briggs, St. Joseph, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

Plaintiff contractor commenced this action to recover the value of labor and materials furnished in constructing improvements at defendants’ residence. In dispute were amounts charged by plaintiff when bills were rendered to defendants after completion of the work. Defendants appeal the judgment entered on a jury verdict reduced by remittitur to $4,849.06.

Appellants advance two points contended to be trial error. The first asserts that plaintiff’s verdict directing and damage instructions, although predicated on an implied agreement of defendants to pay the reasonable value of labor and materials supplied, erroneously failed to limit recovery to a stated contract price. Secondly, appellants contend that the verdict was not supported by competent evidence as to the value of labor and materials.

Some review of the evidence is necessary to evaluate the instruction and submission issues. We defer, of course, to resolution by the jury in plaintiff’s favor of disputed fact questions on which competent evidence appears. Koenig v. Skaggs, 400 S.W.2d 63, 67 (Mo.1966).

Defendants originally engaged plaintiff to replace a flagstone patio with brick. A firm contract price of $3,200.00 was orally agreed subject to a credit of $400.00 if defendants supplied the brick. After work had commenced, defendants found that they would be unable to obtain the particular used bricks as they had expected and commissioned plaintiff to locate antique paver brick in place of the new brick on which the original contract price had been based. Suitable bricks were obtained and defendants directed that they be used after plaintiff informed defendants that such would be at additional cost.

As the patio neared completion, defendants in a discussion with one of plaintiff’s workmen agreed that it would be desirable to add mortar to the joints of an existing rock wall adjacent to the patio. In reply to defendants’ inquiry as to cost, plaintiff estimated that the charge for labor would be “around three hundred fifty dollars.” Plaintiff was instructed by defendants to commence work on the wall. As this work progressed, defendants decided to enlarge the extent of the work by raising the height of the wall and in response to defendants’ question about cost, plaintiff gave an estimation of “around another $350.00.”

Finally, when plaintiff had completed approximately two-thirds of the work on the wall, defendants added a further job, that plaintiff work on a dog kennel and dog run when the wall was completed. No discussion of price for labor, materials or the total job accompanied the order for work on the dog kennel project which accounted for $823.81 of the final bill.

At trial, defendants conceded their obligation to pay the amount billed for the dog kennel, less 15 percent overhead deducted by the court’s order for remittitur, and they also conceded the debt of $3,200.00 for the patio work as originally contracted. So, too, was there no dispute as to the quality of plaintiff’s workmanship nor did defendants contest that the work done conformed to that which they had ordered. The accounts in controversy were the material charges for the paver brick in excess of the original contract price for the patio and the charge of $2,475.60 for the rock wall to the extent that bill exceeded plaintiff’s original estimate.

Further resolution of the disputed amounts was accomplished by order for re-mittitur of 15 percent overhead charges on the billing for work on the rock wall reducing that item to $2,152.70. Plaintiff responded by remitting in conformity with the court’s order, thus arriving at the judgment figure of $4,849.06.

Despite the significant sums involved, no feature of the successive agreements between plaintiff and defendants and their later modifications, either as to the scope of the work or costs, was ever placed in writing. As is apparent in retrospect, such arrangements found the parties in subsequent disagreement as to the terms of their understandings. Plaintiff’s action, however, was not based on agreed contract amounts but sought recovery for the reasonable value of the labor and materials furnished. The verdict directing and damage instructions patterned after MAI Nos. 26.05 and 4.04 submitted this theory of quantum meruit. Defendants complain that these instructions fail to limit plaintiff’s recovery to the contract price. They cite State v. Aetna Casualty & Surety Company, 350 S.W.2d 418 (Mo.App.1961) and Cross v. Robinson, 281 S.W.2d 22 (Mo.App.1955) in support of the proposition that damages in a suit on quantum meruit based on a contract must be limited to the contract price.

The cases cited are inapplicable to the facts of the subject case. In both the State and Cross cases, the actions were based on written construction contracts but partial or imperfect performance alleged to have resulted from acts of the defendants relegated plaintiffs’ claims for damages to the theory of quantum meruit. Under the rule in those cases, a contractor may sue on a contract and seek recovery for the reasonable value of labor and materials supplied in partial performance, but the contract price as prima facie evidence of reasonable value establishes a limit on the sum recoverable. In neither of the cited cases was the contract itself in issue.

In the subject case, plaintiff’s stated cause of action for the reasonable value of labor and materials supplied was based not on a fixed sum contract but on defendants’ express or implied agreement to pay the reasonable value of that which plaintiff furnished on defendants’ order. Defendants, to the contrary, relied on an express contract price for the patio and for the rock wall claiming that plaintiff was bound by the oral agreements not to charge in excess of the amounts quoted. Limitation on plaintiff’s recovery to a contract price was a factor affecting the jury’s award of damages not by reason of plaintiff’s theory for recovery but by reason of the factual dispute generated by defendants’ theory of defense. The verdict directing and damage instructions therefore properly omitted reference to a contract price. Plaintiff was entitled to submit the case to the jury on his theory of recovery if supported by substantial, competent evidence. Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 596 (Mo.App.1977).

Defendants also contend that the consequence of plaintiff’s damage instruction was a jury verdict of excessive damages and that plaintiff erroneously submitted only a single verdict directing instruction when three separate contracts were at issue. Except for the original issues of whether defendants ordered use of the more expensive brick and whether amounts quoted by plaintiff for work on the wall were firm figures or were estimates, issues decided by the jury contrary to defendants’ contentions, excessiveness of the verdict does not appear. By its verdict, the jury awarded plaintiff only the amounts consistent with plaintiff’s proof of disputed items and in conformity with the submission in quantum meruit.

Defendants also appear to overlook the effect of the evidence in the case, including defendants’ testimony, which unmistakably characterizes plaintiff’s quotations for work on the wall as estimates. The only evidence of reasonable value of labor and materials was that offered by plaintiff and was therefore the only evidence appropriate for consideration by the jury in awarding damages. Advance price quotations clearly given as no more than estimates or approximations do not bind the contractor to a fixed sum. Beeler v. Miller, 254 S.W.2d 986 (Mo.App.1953); J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973).

Defendants’ contention that a single plaintiff’s verdict director was improper also fails to recognize the evidence upon which the case was submitted. As noted above, the only contested issues were defendants’ obligation to pay the reasonable additional cost for the paver bricks and the amount to be assessed as the reasonable value of labor and materials furnished in repair of the rock wall. While the patio and the wall were jobs of somewhat different types, all of plaintiff’s work was done in one continuous operation under successive orders by defendants expanding the original project and plaintiff submitted on the disputed charges only one theory for recovery, that of quantum meruit. The result does not indicate and defendants fail to suggest that the verdict directing instruction confused the jury nor have defendants noted any prejudice which they suffered.

Finally, defendants contend that there was no competent evidence as to the fair and reasonable charges for plaintiff’s labor and the materials furnished. Cited are authorities holding that the burden is on plaintiff proceeding in quantum meruit to prove this element before recovery may be had. Again it is appropriate to observe that defendants’ concession of their obligations for payment of plaintiff’s account on the patio, exclusive of the charge for the brick, and the billing on the dog kennel reduced plaintiff’s burden of proof to the limited disputed areas.

As to the brick, plaintiff testified that the material used was that selected by defendants which he purchased at the cost price included in defendants’ bill. As to the rock wall, plaintiff, who had been a masonry contractor for 38 years and a journeyman bricklayer for 27 years, testified as to the reasonable value of labor furnished. Such evidence was based on plaintiff’s personal observation of the work on a day-today basis and his supervision of workmen in his employ. While some issue was made at trial concerning a time record book offered and refused as an exhibit, plaintiff was adequately qualified to testify on the issue of reasonable charges for labor, the burden of proof on the question was satisfied and plaintiff’s evidence was uncontradicted. Defendants’ point on the issue of proof is without merit.

The judgment is affirmed.

All concur.


author: BILLINGS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald Eugene MEARS, Defendant-Appellant.
    No. 10915.
    Missouri Court of Appeals, Southern District, En Banc.
    Oct. 3, 1979.

      John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Harry Rupert Stafford, Jr., Hartville, for defendant-appellant.
   BILLINGS, Judge.

Defendant Ronald Eugene Mears was jury-tried and convicted in Ozark County of stealing neat cattle, a Hereford calf, in violation of § 560.156, RSMo 1969, and sentenced to three years imprisonment. We affirm.

There was ample evidence presented by the prosecution from which the jury could find that defendant and his brother killed and butchered a calf on the Freeman farm near Dora, Missouri, and absconded with the meat. No evidence was offered by the defendant.

Defendant’s principal point is directed to the make-up of the jury that convicted him. On the morning of trial he moved to quash the venire, stating that “the discrimination against women on the venire does not represent an accurate representation of the population of the county.” No evidence was offered in support of the oral motion and it was overruled. Here, defendant alleges the court’s ruling on his motion to quash denied him due process under the Fourteenth Amendment of the United States Constitution and Article I, Section 10, of the Missouri Constitution because no women were members of the venire and thus it failed to represent a reasonable cross section of the population of Ozark County.

Constitutional challenges to alleged discriminatory jury selection usually seek to invoke the Sixth Amendment trial by jury right which includes the right to a jury selected from a fair cross section of the community [Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)], the Due Process Clause of the Fourteenth Amendment [Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)], or the Equal Protection Clause of the Fourteenth Amendment [Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)]. Because defendant herein deems Duren to be the authority for his challenge to the exclusion of women from the jury venire in Ozark County, we conclude he is claiming a violation of his Sixth Amendment right to a jury selected from a fair cross section of the community.

Division Three of this Court recently considered the “fair cross section of the community” requirement of the Sixth Amendment in State v. Montjoy, 587 S.W.2d 624 (Mo.App.1979). In rejecting defendant’s contention, the Court, speaking through Hogan, J., said:

“ . . . There is no doubt that such right inheres in the Sixth Amendment, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), nor is there any question that the ‘fair cross section’ requirement is applicable to the states, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), but defendant mistakes the nature of the right he claims was violated. The fair cross section requirement is not directed to the composition of a particular array or poll, Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766 (1965); it is directed to the method of selecting potential jurors from the members of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 668 and n. 20, 58 L.Ed.2d 579, 586-587 and n. 20 (1979). In Duren, the court held that a criminal defendant claiming violation of the fair cross section principle has the burden to prove: (1) that the group allegedly excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”

In Montjoy, defendant’s contention was denied because the record did not show systematic exclusion of any “distinctive” group [Blacks] from the venires summoned in Scott County, Missouri.

Here, in his brief, the defendant asserts the Ozark County venire did not contain any women; that although the summons to the jury contained the names of some women, none appeared in the venire on the day of defendant’s trial. There is no evidence in the record before us to support prongs (2) and (3) of the Duren test. Assertions set forth in defendant’s brief, without eviden-tiary support, are not sufficient.

In Duren there was evidence of the jury-selection process in Jackson County, Missouri, which lead the court to conclude that there had been a systematic exclusion of women in jury venires. Duren, laboriously reviewed the Jackson County procedure, noting: the annual questionnaire to persons randomly selected from voter registration lists contained a paragraph (described as “prominent”) which advised women they could elect not to serve; the summons to prospective jurors told women to return the summons if they did not desire to serve; and women who did not return the summons but failed to appear were treated as having claimed exemption under Missouri law permitting women to “opt out” from jury service. From these facts, census figures, and a head-count of women on jury venires, the court concluded the jury ve-nires in Jackson County averaged less than 15% females and this resulted in a violation of the Constitution’s fair-cross-selection requirement.

Defendant’s failure to prove a systematic exclusion of women from Ozark County is fatal to his claim and the point is denied.

Defendant assigns error in the trial court’s refusal to strike for cause two veniremen and claims he was required to exercise peremptory challenges on these two panel members. The record does not support defendant’s contention and the state does not concede the same. The failure of the record to bear out defendant’s assertion is, in itself, sufficient to deny the point. State v. Goree, 546 S.W.2d 785 (Mo.App.1977). We have read the voir dire examination of the two veniremen and find no abuse of discretion by the court in denying defendant’s challenges for cause. Of necessity, the trial court has very wide discretion in determining the qualifications of prospective jurors and its ruling is not to be disturbed on appeal unless it is against the evidence and constitutes a clear abuse of discretion. State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977).

We have reviewed defendant’s remaining points and find no reversible error. The information was sufficient, allocution was granted, and sentence and judgment responsive to the verdict of the jury.

The judgment is affirmed.

All concur, except TITUS and GREENE, JJ., recuse.

      . For differences and distinctions between the various constitutional challenges to jury-selection see; Duren v. Missouri, 99 S.Ct. at 670, n. 26 and dissenting opinion by Mr. Justice Rehnquist.

      . The transcript shows the following:

        Defendant’s Attorney. “We move to quash the entire venire panel for the reason that the discrimination against women on the venire does not represent an accurate representation of the population of the county.”

        Prosecuting Attorney. “ . I would like for the record to show that the summons for a jury . . . shows that there are at least — well, there are five females listed as alternates on this panel, and I believe that the cases in Missouri would place a burden upon [defense counsel] and the defendant to show that there was systematic exclusion of women or females from the panel, and I just don’t believe that that can be shown today.”

        Court: “Motion to quash the jury panel denied.”

      . Mo.Const. Art. 1, § 22(b); § 494.031(2), RSMo 1978.


author: HOGAN, Judge.

text:
    Roy H. GREEN and Florence Green, his wife, Plaintiffs-Respondents, v. Denny WOODARD and Glenda Marler, Defendants-Appellants.
    No. 10805.
    Missouri Court of Appeals, Southern District, Division Three.
    Oct. 4, 1979.

      Jasper N. Edmundson, Glenn E. Easley, Hyde, Purcell, Wilhoit, Edmundson & Mer-rell, Poplar Bluff, for defendants-appellants.
    Daniel L. Moody, Van Burén, for plaintiffs-respondents.
   HOGAN, Judge.

In this action for rent and possession, defendants filed a counterclaim praying specific performance of an option to purchase the demised premises. The trial court found that the option had not been properly exercised and refused to order specific performance. The optionees appeal.

The record shows that on April 10, 1973, plaintiffs demised a 90-acre parcel of realty to one Oscar Marler and defendant Denny Woodard for a term of four years. The property has been developed; plaintiff Florence Green described it as a “ . truck stop [including] [a] restaurant [and] motel.” The rent reserved was payable quarterly at the Winona Savings Bank, which held a first deed of trust against the property. The lease contained a “continuing and irrevocable” option to purchase which was subject to acceptance at any time during the term of the lease. The lease provided that “the word lessee, op-tionee, or buyer shall include the heirs, executors, administrators, successors or assigns of the lessee . . . .”

Oscar Marler died in June 1975. It is inferable that his widow, defendant Glenda Marler, continued to operate the truck stop after his death, but the relationship between the lessors and the lessees began to deteriorate, the January 1976 payment was late, and on May 14, 1976, the plaintiffs instituted an action for rent and possession in the Magistrate Court of Carter County. The record recites that the defendants filed a general denial, that the cause was tried in magistrate court and was thereafter appealed to the Circuit Court of Carter County. On October 14, 1976, the defendants filed an answer and counterclaim in the circuit court. The counterclaim is pleaded in two counts. Count One avers the existence of the option to purchase, the lawful exercise thereof, and the lessees’ failure to perform, i. e., convey the premises. The prayer of Count One of defendants’ counterclaim, as material, is that:

“ . . . the plaintiffs be ordered to immediately convey to the defendants the property referred to herein upon the defendants [sic] complying with the provisions of said agreement. In the event the plaintiffs refuse to do so, that the Court enter its order directly conveying to the defendants the property referred to herein upon defendants [sic] compliance with provisions of said agreement. Further, that the Court enter judgment for the defendants and against the plaintiffs in the amount of $5,000.00 for damages as recited herein. . . .”

Thereafter, the plaintiffs filed certain responsive pleadings, but they are not germane to the appeal.

On June 10,1977, the cause was called for hearing. The trial court noted that the magistrate court had ruled in favor of plaintiffs on their action for rent and possession. Some discussion and argument followed, a false start was made, and finally, the parties agreed to limit the trial to Count One of defendants’ counterclaim. Evidence was heard; the trial court found against defendants Woodard and Marler. The judgment on Count One of the counterclaim was made final and appealable.

It is elementary that this court has the duty to inquire into its jurisdiction of an appeal, whether or not the parties have done so. Pollard v. David, 421 S.W.2d 296 (Mo.1967); Engel Sheet Metal Equipment v. Shewman, 301 S.W.2d 856, 859[1] (Mo.App.1957). Further, it must be borne in mind that a court of general jurisdiction, when engaged in the exercise of a special statutory power, is confined strictly by the statute, and in exercising such power is a court of limited jurisdiction. Randles v. Schaffner, 485 S.W.2d 1, 3[6] (Mo.1972); State ex rel. Kansas City v. Public Service Commission, 362 Mo. 786, 797, 244 S.W.2d 110, 117[17] (1951).

A comparison of the averments of plaintiffs’ petition filed in magistrate court with the allegations required by § 535.020, RSMo 1969, V.A.M.S., now repealed, leave us in no doubt that plaintiffs intended to institute an action for rent and possession, as authorized by former Chapter 535, RSMo 1969, V.A.M.S. The defendants filed a general denial. The record suggests they may have tried to put title in issue before the magistrate, but if they did, it is clear they did not file the detailed statement in writing required by former § 517.330 to enable the magistrate to certify the cause to the Circuit Court of Carter County. See McNeill v. McNeill, 456 S.W.2d 800, 806-807 (Mo.App.1970). Rather, the cause came to the circuit court by way of appeal; and upon trial the circuit court was not exercising its usual nisi prius jurisdiction but was exercising the special appellate jurisdiction conferred upon it by former §§ 512.270, 512.280 and 512.290. Putting the matter differently, we are concerned with rights on appeal, and Rule 81.01, V.A.M.R., in terms states the right of appeal shall be as provided by law. The controlling laws — former §§ 512.270, 512.280 and 512.290 and their predecessors — have been consistently held to mean that on appeal from magistrate court, the circuit court acquires only such jurisdiction as the magistrate had and in effect sits as a magistrate. Moreover, the circuit court is limited to the very issues tried in magistrate court; no new or different action could be tried in the circuit court, no counterclaim could be pleaded and no new item could be added to the original claim — here, the claim for rent and possession. Bridge Development Company v. Vurro, 519 S.W.2d 321, 325 (Mo.App.1975); Swetnam v. U.S. By-Products Corporation, 510 S.W.2d 829, 831 (Mo.App.1974); Mumford v. Sutton, 476 S.W.2d 141, 143 (Mo.App.1972).

By statute, magistrates had no jurisdiction of any action involving title to real estate nor any jurisdiction of any strictly equitable proceedings. Section 482.100, RSMo 1969, V.A.M.S., now repealed. In Count One of their counterclaim, defendants clearly sought specific performance of the option to purchase the demised premises. Specific performance is a wholly equitable remedy governed by equitable principles. Hoover v. Wright, 202 S.W.2d 83, 86[2] (Mo.1947); McDown v. Wilson, 426 S.W.2d 112, 117-118[3] (Mo.App.1968). Such relief as defendants sought in damages was merely ancillary to the equitable relief. Arnold v. Smith, 436 S.W.2d 719, 724 (Mo.1969). Further, an action for specific performance involves “title to real estate.” Cf. Domyan v. Dornin, 356 S.W.2d 70[1] (Mo.1962).

It follows that the circuit court was wholly without jurisdiction to hear and adjudicate Count One of the defendants’ counterclaim; the judgment appealed from is void. This court can acquire no jurisdiction from a void judgment or order except jurisdiction to determine the invalidity of the order or judgment appealed from and to dismiss the appeal. Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 14-15, 269 S.W. 395, 397[2][3] (banc 1925); Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 571[2] (Mo.App.1976). Accordingly, the appeal is dismissed.

All concur.