text:
    HAMILTON MUSIC, INC., Plaintiff-Appellant, v. Donald E. YORK and Ronald E. Mahan, d/b/a Don and Ron’s Music Center, Defendants-Respondents.
    No. KCD 29327.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      James W. Drese, Chesterfield, for plaintiff-appellant.
    Hendren & Andrae, Kelly Pool, Michael A. Dallmeyer, Jefferson City, for defendants-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Hamilton Music, Inc. (hereinafter plaintiff) filed a three count action against Donald E. York and Ronald E. Mahan, d/b/a Don & Ron’s Music Center (hereinafter defendants), in the Circuit Court of Cole County, Missouri. The action was inspired by a franchise agreement to operate a retail music store in Jefferson City, Missouri, and related business dealings between the parties. Plaintiff was the franchisor and holder of a certain promissory note; defendants were the franchisee and makers of the promissory note. Count I of plaintiff’s petition was an action on the promissory note, Count II thereof was an action for royalties due and owing under the franchise agreement, and Count III thereof was an action for money owed on an open account. Defendants filed a counterclaim seeking damages for plaintiff’s breach of the franchise agreement.

At the close of the plaintiff’s case defendants’ motion for a directed verdict in favor of defendants and against plaintiff as to Count II -of plaintiff’s petition was sustained by the trial court. The remaining two counts of plaintiff’s petition and defendants’ counterclaim were submitted to the jury under appropriate instructions with the following results. As to Count I of plaintiff’s petition (action on the promissory note), the jury returned a verdict in favor of defendants and against plaintiff; as to Count III of plaintiff’s petition (action on the open account), the jury returned a verdict in favor of plaintiff and against defendants in the sum and amount of $7,971.79; and as to defendants’ counterclaim the jury returned a verdict in favor of defendants and against plaintiff in the sum and amount of $12,500.00. The parties acquiesced to all of the judgments entered on the various verdicts excepting only the judgment entered in favor of defendants and against plaintiff in the sum and amount of $12,500.00 on defendants’ counterclaim, and from this letter judgment plaintiff timely appealed.

Two points are relied on by plaintiff on appeal. The first point — “[t]he court erred in failing to permit appellant [plaintiff] to introduce a certain check written by respondents [defendants] on a pre-printed check, with appellant’s [plaintiff’s] name on it” — is so beset with procedural attrition that nothing is preserved for appellate review. Rule 84.04(d) commands that the “points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . (Emphasis added.) The mere espousal of purported error, unaccompanied by a statement as to “wherein and why”- it is claimed to be erroneous, does not comply with Rule 84.04(d), supra, and preserves nothing for appellate review. Absent the incorporation of a statement as to “wherein and why” an action or ruling of the trial court is claimed to be erroneous, an appellate court is presented with nothing more than an abstraction and no duty evolves upon it to search the transcript or seine the argument portion of a brief to supply the missing ingredients of an errant “point relied on”. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 629-630 (Mo.App.1976); and Dors v. Wulff, 522 S.W.2d 325, 327 (Mo.App.1975).

Plaintiff’s final point, that the trial court erred in not admitting Exhibits No. 4, 5, 6 and 8 offered by plaintiff as “business records”, is at best a bare bones compliance with Rule 84.04(d). Exhibits No. 4, 5 and 6, after being tersely identified as letters from plaintiff’s files, were offered into evidence under the guise of constituting “business records” and, hence, admissible as exceptions to the hearsay rule. Defendants’ objections to these exhibits were sustained by the trial court. Plaintiff at the time apparently concurred with the trial court’s ruling because it made no offer of proof of any kind, and, more-particularly, no offer of proof that so much as even hinted or suggested that the exhibits were prepared in such a manner as to fall within the purview of Sections 490.660 to 490.690, commonly cited as “The Uniform Business Records As Evidence Law”. As succinctly stated in Hays v. Western Auto Supply Company, 405 S.W.2d 877, 881 (Mo.1966), “[n]othing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof.” This excerpt from Hays was cited with approval and relied on in Tile-Craft Products Co., Inc. v. Colonial Properties, Inc., 498 S.W.2d 547, 549 (Mo.1973), wherein the court held that when a rejected exhibit purportedly constituting a business record was unaccompanied by an offer of proof, nothing was preserved for appellate review insofar as the rejected exhibit was concerned. Regarding plaintiff’s Exhibit No. 8, it too was declared inadmissible by the trial court. However, as some semblance of an offer of proof was made by plaintiff when it was rejected to ostensibly warrant its admission, the ruling of the trial court thereon will be treated as preserved for purposes of appellate review. With respect to Exhibit No. 8 offered by plaintiff, an employee of plaintiff testified that it was a computer printout prepared by Westinghouse Credit Corporation, a stranger to the litigation, rather than by plaintiff. Plaintiff’s emaciated offer of proof indicated that it received the computer print-out from Westinghouse Credit Corporation and retained the same in its files as part of its business records. Flying in the face of plaintiff’s claim of admissibility is the previously mentioned testimony from plaintiff’s employee that the exhibit in question was not prepared by an employee of plaintiff but that it was prepared by someone at Westinghouse Credit Corporation. A quick perusal of Sec. 490.680, RSMo 1969, discloses that plaintiff’s offer of proof and what little evidence there was of record failed to qualify plaintiff’s Exhibit No. 8 for admission into evidence as a business record: “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” By no stretch of legal imagination did the exhibit’s mere presence in plaintiff’s files render it admissible as a business record under Sec. 490.680, supra. Not even generalities, much less particularities, as to the time, mode and manner of its preparation by its “custodian or other qualified witness” were ever broached or touched upon in plaintiff’s offer of proof. This alone sealed the fate of the controversial exhibit from being qualified for admission into evidence under Sec. 490.680, supra. Del Monte Corp. v. Stark & Son Wholesale, Inc., 474 S.W.2d 854, 857 (Mo.App.1971). In the same vein, when the status of the record is such that it discloses that an exhibit was not made in the ordinary course of the offerer’s business but was instead prepared elsewhere and merely found in the offerer’s files, it is inadmissible as a business record under Sec. 490.680, supra. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); and Rodenberg v. Nickels, 357 S.W.2d 551, 557 (Mo.App.1962). For reasons stated, the trial court did not err in rejecting Exhibits No. 4, 5, 6 and 8 offered by plaintiff.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harvey James PERRY, III, Defendant-Appellant.
    No. 10574.
    Missouri Court of Appeals, Springfield District.
    May 2, 1978.

      John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Jay White, Rolla, for defendant-appellant.
   TITUS, Judge.

Defendant was jury-convicted of burglarizing and stealing from the bucolic home of Mr. and Mrs. Warnhoff. He was consecutively sentenced to prison terms of two years for each crime and appealed.

On the night in question, an across-the-road neighbor of the Warnhoffs became suspicious of the operations of an automobile in the area. After a preliminary inspection of the situation by vehicle, the neighbor returned home and undertook investigation afoot. He observed that the Warnhoff house was unlighted except for intermittent appearances of flashlight beams. No strange motor vehicle was seen nearby. The neighbor telephoned the sheriff’s office to report what he thought was a burglary “in progress.” Upon returning to his observation post, the neighbor saw the previously espied vehicle travel to and stop in front of the Warnhoff property. By aid of illumination of the vehicle’s taillights, the neighbor saw “two people cross behind the car and get into it.” Within minutes after departure of the suspect vehicle, a highway patrolman arrived on the scene. Together, the neighbor and patrolman pursued and captured the auto containing the supposed burglars, items stolen from the Warnhoff residence and various burglary tools. Defendant was driving the apprehended automobile. Defendant’s fiancee (his wife at the time of trial), occupied the right side of the front seat. Larry Goings described, without objection, as a man with a bad criminal record, sat in the rear seat.

Defendant’s wife testified that she (as front seat passenger), Goings (as back seat passenger) and defendant (as driver) were taking a nocturnal automobile ride through the countryside when Goings “hollered to stop the car.” . . . “[W]e thought something was wrong so we stopped the car, and [Goings] said, ‘Give me the car keys,I have to go to the bathroom’ . [Defendant] said, ‘That’s silly’, and [Goings] reached up and took [the car keys] out of the ignition . . . and walked back behind the car somewhere. We didn’t see where he went. . [Goings was gone] about ten minutes. . . Then [Goings] came back and he had a box . and got in the back seat and he told [defendant] to drive, and [defendant] said ‘No’ . [and Goings] told [defendant] that he didn’t want to see me get hurt. [Goings] reached up and put his hands on my shoulders and then [defendant] drove.”

Defendant’s lone point relied on is: “Appellant’s contention is that the Court, by refusing his request to instruct the jury in writing upon the question of duress or coercion was error, in that there was substantial evidence, when considering the reasonable inferences to be drawn therefrom for the basis of the requested instruction concerning appellant’s defense of duress or coercion to voluntarily commit the crime for which he was charged.” Frankly, we cannot comprehend the point as written nor the concluding contradiction which seemingly undertakes to equate a defense of duress or coercion with a state of voluntariness. A point which cannot be comprehended without reference to other portions of the brief preserves nothing for appellate review. State v. McClain, 541 S.W.2d 351, 354[7] (Mo.App.1976). Nevertheless, it is suspected the point intended is that, considering the reasonable inferences to be drawn from the evidence, the trial court erred in refusing to instruct upon the defense of duress or coercion because there was substantial evidence that defendant did not voluntarily commit the charged crime. Albeit conceded that the rewritten point directed a complaint against the trial court’s refusal to instruct upon the defense of duress and coercion, an insistence that unspecified, unexplained and undesignated reasonable inferences and substantial evidence (whatever they may have been) compelled such a charge, falls far short of the mandate of Rule 84.04(d), V.A.M.R., which requires that an appellant in his points relied on must particularize “wherein and why” the trial court’s action or inaction was erroneous and enlighten us as to what the involved inferences and evidence are claimed to be. Cf. State v. Purvis, 525 S.W.2d 590, 596[10] (Mo.App.1975); State v. Pauley, 515 S.W.2d 824, 825[3] (Mo.App. 1974). In addition to the foregoing, defendant’s point is not properly preserved for our review for the simple reason that the denied instruction is not set forth in the argument portion of his brief. Rules 28.18 and 84.04(e), V.A.M.R.; State v. Gilbert, 544 S.W.2d 595, 597[1] (Mo.App.1976); State v. Lewis, 532 S.W.2d 843, 844[1] (Mo.App. 1975); State v. Hill, 530 S.W.2d 50, 51[5] (Mo.App.1975); State v. Fleming, 528 S.W.2d 513, 515[1] (Mo.App.1975).

To avoid another charge that courts are wont to dispatch appeals on technicalities, we will consider this matter upon its merits, if any, in an abbreviated fashion. While coercion is a defense to all crimes except murder [State v. Green, 470 S.W.2d 565, dissenting opinion at p. 570 (Mo. banc 1971)], before coercion may constitute a defense to a criminal charge “the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse”. State v. St. Clair, 262 S.W.2d 25, 27-28[2] (Mo.1953); Sanders v. State, 556 S.W.2d 486, 489 (Mo.App.1977); 22 C.J.S. Criminal Law § 44, pp. 135-136.

The instruction offered by defendant and refused by the court reads: “If you find and believe from the evidence that at the time and place mentioned in evidence [defendant] was intimidated and threatened by [Goings] of violence to [defendant’s present wife] and to himself, and that he the said defendant ... as a result of said intimidation did not intent [sic] to break into any dwelling house or steal any property therefrom as mentioned in evidence, you must find defendant . . . not guilty of any offense.”

We eschew the unnecessary task of determining whether the proffered instruction was correctly structured or, if it was not, whether the trial court was required, per Rule 26.02(6), V.A.M.R., to properly instruct the jury on the issue in a different form. This, for the simple reason that there was no evidence to support or mandate such an instruction. Before it should be submitted to the jury, an instruction must have a basis in evidence and it is not error to refuse to give an instruction that totally lacks evidentiary support. State v. Manley, 513 S.W.2d 703, 705[6] (Mo.App. 1974).

In effect, defendant’s wife testified that she and defendant remained in the car while Goings ostensibly was heeding a call of nature but was actually burglarizing and stealing from the Warnhoff dwelling unassisted and unaccompanied by defendant. To the contrary, the instruction which defendant now says the court erroneously refused to give, was predicated upon the assumption that defendant did, in fact, participate in the burglary and did, in fact, participate in the stealing but only because he was coerced into doing so by Goings’ threats of violence to defendant and his present wife. Furthermore, the sole evidence adduced by defendant relating to duress on the part of Goings was that the only coercion occurred after the burglary and stealing became fait accompli. The offered instruction had no evidentiary basis and the trial court did not err in refusing to give it.

The judgment is affirmed.

All concur.

      . In defendant’s brief the point is mislabeled “Points and Authorities." Rules 84.04(a) and (d) V.A.M.R.


author: KELLY, Judge.

text:
    ST. CHARLES FLOOR COMPANY, Plaintiff, v. Jack HOELZER, Defendant-Respondent, Roy R. Thoele, Defendant-Appellant.
    No. 37536.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 2, 1978.

      Rollin J. Moerschel, Niedner, Moersehel, Ahlheim & Bodeux, St. Charles, for appellant.
    Julius H. Berg, St. Louis, for St. Charles Floor Co.
    James L. Thomas, Henderson, Heagney & Thomas, St. Louis, for Jack Hoelzer.
   KELLY, Judge.

In this appeal from a judgment of the Circuit Court of St. Louis County on a cross-claim to recover sums allegedly due for construction work completed by the respondent, Jack Hoelzer, for the appellant, Roy Thoele, the decisive issue is whether there is sufficient evidence to support the judgment of the trial court. For reasons we shall hereinafter state the judgment must be reversed and the cause remanded to the trial court for a new trial.

In the trial court the appellant, Roy Thoele, was a third-party defendant and the respondent, Jack Hoelzer, the third-party plaintiff. Hereinafter the respective parties shall be referred to by their surnames.

Hoelzer’s cross-claim was in two counts. In Count I he claimed $1,897.47, as the reasonable value of labor and materials supplied as “extras” in construction of a project known as the St. Peters project. After St. Charles Floor Co. settled its claim against him, the amount sought was reduced to $668.00. The “extras” for which payment was demanded was work allegedly authorized by Thoele but not included in the construction contract for this project. Hoelzer pleaded this Count on alternative theories of express contract and quantum meruit.

In Count II, Hoelzer claimed Thoele owed him $7,317.42 for labor and material supplied Thoele in a construction project known as the Highway 94 project. This project proceeded without a written contract and therefore Hoelzer pleaded this cause of action in quantum meruit. Hoelzer claimed the reasonable value of labor and materials was $69,748.00 and that Thoele had paid him only $62,430.58.

Thoele filed an answer which constituted a general denial of the allegations of each Count of Hoelzer’s cross-claim. On September 24,1974, the cause came on for trial before the court without a jury and on October 17, 1975, judgment was entered in favor of Hoelzer and against Thoele on Count I of the cross-claim in the sum of $668.00 and on Count II thereof in the sum of $7,317.42. Notice of appeal was filed on October 23, 1975.

The evidence at trial on Count I was that on July 1,1971, Hoelzer and Thoele entered into a contract for the construction of the St. Peters building at a contract price of $89,270.82. As construction progressed Thoele directed Hoelzer to undertake additional work on the project which was not originally- contemplated by the parties. Neither Hoelzer nor Thoele dispute the nature of these “extras,” which were (1) improvements and redesign of a dentist’s office, (2) a door, extra plumbing and a floor drain trough for a dairy store, and (3) additional glass for the laundromat.

Hoelzer claimed the cost of these “extras” was $11,611.78; that he was paid $99,-215.76 on the whole job and had applied $89,270.82 towards the original contract, but that $668.47 remained due him.

The evidence on Count II was that in August, 1971, the parties discussed the construction of an addition to Thoele’s existing building on Highway 94 in St. Charles County, Missouri. Hoelzer submitted two proposals for this work. In one the estimated cost of the work was $60,672.00 and in the other $62,432.00. Hoelzer claims that both contracts were figured on the basis of a 6500 sq. ft. building. Neither of these contracts was ever signed. Subsequently, Thoele submitted plans to Hoelzer for construction of a 7500 sq. foot building and it was this building which was eventually constructed. Thoele claimed that the unsigned contract quoting a construction price of $62,432.00 was based on the construction of a 6500 sq. ft. building and therefore Hoel-zer’s final bill for $69,748.00 was unreasonable. Thoele had paid Hoelzer $62,438.58 and claimed that the additional sums sought by Hoelzer are excessive, unreasonable and unsupported by any documentary evidence.

On appeal, Thoele contends that the respondent failed to prove that the charges claimed in Count I of the cross-claim for the “extras” were fair and reasonable. We agree.

Whether Hoelzer’s theory of recovery be on express contract or quantum meruit, because what he sought payment for were “extras,” he is entitled only to recover for the “reasonable value” thereof. Julian v. Kiefer, 382 S.W.2d 723, 730[15] (Mo.App. 1964); Williams v. Cass, 372 S.W.2d 156, 161[11] (Mo.App.1963); Knoch v. Frye, 363 S.W.2d 737, 741[4] (Mo.App.1962).

Hoelzer’s evidence in support of this Count of his petition consisted of a letter itemizing the work done, the respective charges, a contract detailing the work done in the dentist’s office, and his own testimony describing briefly the work required for the other “extras.” No evidence or testimony was adduced to prove the reasonable value of these “extras.” It is not enough to prove only that the work was done, how many hours of labor were involved, or what material was furnished; plaintiff must also prove that his expenditures for labor and material were the reasonable value thereof. Rodgers v. Levy, 199 S.W.2d 79, 82[5] (Mo.App.1947). Nor may the trial court take judicial notice of the reasonable value of construction work. Williams v. Cass, supra, l.c. 161. Hoelzer did not testify that the charges were reasonable to support his claim nor did he produce documented receipts or expert testimony to prove that essential element of his case. Failure to prove the reasonable value of the services rendered or the materials furnished is fatal to Hoelzer’s recovery and therefore the judgment of the trial court on Count I of his petition must be reversed.

Thoele levels the same charges against Count II of Hoelzer’s cross-claim that he levelled against Count I. He contends that neither Hoelzer’s testimony nor the documentary evidence proved that his charge in the amount of $69,748.00 was reasonable and fair. He specifically challenges the judgment which includes specific cost items included on an accounting sheet introduced by Hoelzer. This exhibit was an itemized list of all of the charges making up Hoel-zer’s final bill, together with cancelled checks for all of those items which had been paid for by checks.

Included in Hoelzer’s bill was a 2% charge for overhead and an 8% contractor’s profit charge amounting to $1,229.49 and $5,016.34 respectively. Hoelzer testified that the parties had agreed to the 8% + 2% profit. Thoele admitted such a charge would be reasonable in a construction contract, but denied that he had agreed to it, and he objected to the introduction of this evidence on the grounds that it was beyond the scope of a claim in quantum meruit because it was not an item includable as reasonable value of services or material furnished. His objection was overruled.

The law is well established in this State that profit, which is not shown to be a charge for supervision or personal services, may not be recovered in quantum meruit.

Isaac v. Koenig, 447 S.W.2d 818, 820[3] (Mo. App.1969); Bogert Construction Company v. Lakebrink, 404 S.W.2d 779, 783 (Mo.App. 1966); Rodgers v. Levy, supra, l.c. 82[9], Whether Thoele agreed to this charge as profit is immaterial in a suit brought on the quantum meruit theory as Count II of Hoelzer’s cross-claim was.

Hoelzer listed the 8% assessment as “profit,” but on his direct examination he did not testify concerning the basis for this “profit.” On cross-examination, however, he was questioned about assessing profit on a bill from Schmidt Brick and Block which he did not pay himself but which was paid for by a voucher from Thoele. When asked why he charged profit on this item for which he had no out of pocket expenses, Hoelzer answered that the charge for profit was made because both he and Thoele procured the estimate and he supervised some of the work. Hoelzer did not, however, testify as to the basis for charging a profit on any other item contained in his account.

While Hoelzer’s charge for profit on the Schmidt Brick and Block transaction came in, there is no evidence sufficient to support an inference that profit charged on other items of the account were of the same stature. Hoelzer charged $2.50 per hour more for his own labor than he did for his other workers, and although he testified that his higher rate was for various services which he generalized as “supervising the job,” the record shows that he charged for profit on all of the labor costs. In view of Hoelzer’s testimony that the $2.50 additional charge for his labor was for supervisory services, it is difficult for us to comprehend how the 8% profit charge on the entire labor charges can be a charge for personal services or supervision. Any finding supporting this claim for profit is not supported by substantial evidence.

Thoele also challenges the reasonableness of the labor charges amounting to more than $6,500.00 for 573 hours of work. Hoel-zer hired two carpenters at a rate of pay of $7.50 per hour and another carpenter at $8.00 per hour. He testified as to work they performed, including extra work required on the 7500 sq. ft. building. However, there was no evidence introduced as to the reasonableness of these hourly rates, whereas, there was evidence in the record which questions the reasonableness and validity of these charges.

Hoelzer admitted that he did not keep the time records of these carpenters; they kept their own. No time records were introduced into evidence by Hoelzer to substantiate his claim on this charge. He also testified that he paid one of the carpenters $8.00 per hour because the Union requires an additional $0.50 per hour be paid a foreman when two or more carpenters are present on the job. On cross-examination he admitted that he paid the extra $0.50 per hour to this carpenter when the man worked alone, and he explained this by testifying: “I paid him what I thought he was worth.” There was no testimony that Hoel-zer’s appraisal of this man’s “worth” was reasonable. From our perusal of the accounting sheet and the amounts actually paid on the corresponding checks we discern that the amounts charged for labor are not the same; almost all of the checks paid to Hoelzer’s carpenters are for a lesser amount than that listed on the accounting sheet. On the basis of this record we find no substantial evidence to support the recovery for any labor charges because there is not a scintilla of evidence to show that the charges for same were reasonable.

For the reasons aforesaid, we hold that Hoelzer failed to introduce requisite proof of the reasonable value of the charges discussed herein. This failure is fatal. Furthermore, Hoelzer cannot be permitted to recover profit which is not shown to be a charge for personal services or supervision. For this reason the judgment must be reversed. However, the cause shall be remanded for a new trial of Hoelzer’s cross-claim where he may be able to produce the evidence necessary to prove his case on those charges we have found to be unsupported by substantial evidence.

Judgment reversed and remanded for a new trial on Hoelzer’s cross-claim.

GUNN, P. J., and WEIER, J., concur.

      . This suit was originally filed by the St. Charles Floor Company against the parties to this appeal. Prior to trial, St. Charles Floor Company’s claim was disposed of by settlement.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Ross HOGAN, Appellant.
    No. 38533.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 2, 1978.

      Freeman, Whitfield, Montgomery & Walton, Elbert A. Walton, Jr., St. Louis, Robert W. Miller, St. Louis, for appellant.
    Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of felony-murder (Count I), assault with intent to kill with malice (Count II), and attempted robbery (Count III). The court assessed punishment pursuant to the second offender act of life imprisonment on Count I, 50 years on Count II consecutive to the punishment on Count I, and 10 years on Count III concurrent to the punishment on Count I.

On appeal defendant contends the court erred in failing to give instructions covering lesser included offenses.

The evidence supported a jury finding that defendant and two accomplices attempted an armed robbery of the Emergency Room tavern in St. Louis. Following the announcement of a hold-up one of the customers, Alford Williams, drew a pistol. Considerable shooting followed by defendant, his accomplices and Williams, during which another customer, Leonard Meadows, was killed by a bullet or bullets from Williams’ gun. Defendant was wounded, also by Williams. Williams was shot with a pistol by defendant and by a shotgun in the hands of one of the accomplices. Williams was severely wounded, but not killed. The three robbers left the tavern after the shooting without having completed the robbery. Defendant testified that he entered the tavern alone and unarmed to use the restroom, that as he was starting to leave the tavern the shooting erupted and he was wounded, and that he left the tavern to seek help for his wound.

Although a motion for new trial was filed and denied, that motion is not included in the record. Defendant’s contentions must therefore be reviewed under the plain error doctrine. Rule 27.20(c).

His first contention is that the trial court should have instructed on Count I on second degree murder and manslaughter. In a felony-murder case such instructions are to be given only “where there is evidence warranting a finding that the murder was not committed in the perpetration of or attempt to commit the felony relied upon to authorize a felony murder instruction.” MAI-CR 6.02 caveat a.; State v. Tyler, 556 S.W.2d 473 (Mo.App. 1977) [1, 2]. The killing of Meadows was solely the product of the attempted robbery and the predictable, although ill-considered, attempt of Williams to thwart it. There is no evidence to support the giving of instructions on lesser offenses of homicide. Defendant was either guilty of felony-murder or he was guilty of nothing.

The same is true for defendant’s second contention that the court should have given an instruction on assault without malice aforethought, Sec. 559.190 R.S. Mo.1969. While we could base our ruling on this point on the presumption that assault with a dangerous and deadly weapon is with malice aforethought in the absence of contrary evidence, we do not do so. State v. Lane, 537 S.W.2d 569 (Mo.App. 1976) [2]. We hold rather that the attempted robbery supplied the element of malice aforethought as a matter of law. If the attempted robbery serves to establish as a matter of law the elements of first degree murder, we hold it is also sufficient to establish as a matter of law the requisite “malice aforethought” required for conviction under Sec. 559.180, R.S.Mo.1969. See Hardnett v. State, 564 S.W.2d 852 (Mo. banc 1978) for discussion of the difference between the assaults covered by Secs. 559.-180 and 559.190.

Defendant’s third contention is that the court should have given a lesser included offense instruction on Count III of attempted stealing from the person. There is no evidence to support such a submission.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri ex rel. Betty F. BREWER, Relator, v. Charles A. SHEEHAN, Judge, Division No. 1, Circuit Court, Twenty-Third Judicial Circuit, Respondent.
    No. 39316.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 2, 1978.
    Benson Cytron, House Springs, for relator.
    Edward L. Dowd, Dowd & Oates, St. Louis, for respondent.
   SMITH, Judge.

Relator sought prohibition to prevent respondent from proceeding to hear and determine a partition action brought by underlying plaintiff James C. Brewer (hereinafter plaintiff). Plaintiff and relator were married. Dissolution of that marriage occurred on July 7, 1975. Plaintiff defaulted in that proceeding and only relator appeared.

Relator’s testimony at the dissolution hearing was that the parties owned a business and a home, but that they had agreed to divide these assets equally. She also indicated arrangements had been made to sell the home. As a result of this testimony the trial court in the dissolution proceeding provided:

“There will be no order of marital property distribution, the Court finding the parties have made arrangements for distribution of their property.”

Apparently the anticipated sale of the house did not materialize and plaintiff brought his action seeking partition of the homestead. Relator sought dismissal of the petition for partition on the basis that the trial court in the dissolution proceeding still had jurisdiction of the marital property and the court lacked jurisdiction to proceed in the partition suit.

It has been held in several cases that the trial court in a dissolution proceeding must make a disposition of marital property. Until it has done so it has not exhausted its jurisdiction and the marital property is still subject to that jurisdiction. Pendleton v. Pendleton, 532 S.W.2d 905 (Mo.App.1976); L.F.H. v. R.L.H., 543 S.W.2d 520 (Mo.App. 1976); Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977). No disposition has been made of the marital property here. It is still subject to the jurisdiction of the court in the dissolution proceeding. Until disposition of the marital property has- been completed, its ownership is unknown. Rule 96.-01 and Sec. 528.030 R.S.Mo.1969 provide for partition where the land is held in joint tenancy, tenancy in common, or co-parcenary. Until, however, the court in the dissolution action has fulfilled its statutory mandate to dispose of the marital property, the land is not held in any of those categories and the court lacks jurisdiction to partition it. Whether it will be subject to partition after final disposition is made in the dissolution action is at present unknown. But see Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977) [9,10,11].

Respondent’s contention that the error in failing to dispose of the marital property was induced by relator may be true but that does not change the court’s jurisdiction. The same is true of contentions that relator is estopped and that she may not renege on the “agreement” to which she testified. These are matters for consideration in the dissolution case when the court acts to distribute the marital property. Nor do we find that the property involved was excluded as marital property by agreement of the parties as provided in Sec. 452.330.2(4) R.S.Mo.Supp.1973. Neither the dissolution court nor the relator indicated it was not marital property. The decision in the dissolution proceeding occurred before the case law interpreting the statute as requiring the trial court to make a disposition of marital property. Neither the trial court nor the relator recognized the necessity of the court exhausting its jurisdiction over the marital property and the court did not exercise the jurisdiction required of it.

Our writ of prohibition is therefore made permanent and the trial court is directed to dismiss the partition suit, Cause No. 971 -1, for lack of jurisdiction.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: CLEMENS,

text:
    Roy COX, d/b/a Roy Cox Plumbing and Heating, Respondent, v. Chuck BLOSSOM, Appellant.
    No. 38339.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 2, 1978.

      Gray & Stewart, Clayton, for appellant.
    Reginald P. Bodeux, St. Charles, for respondent.
   CLEMENS,

Presiding Judge.

Plaintiff sued both defendant Chuck Blossom and his corporation, defendant Mark Twain Shopping Center. At the close of plaintiff’s evidence, the trial court granted the corporation’s motion for a directed verdict, leaving only defendant Chuck Blossom in the case. Verdict and judgment was for plaintiff and Blossom has appealed.

The trial court instructed the jury to return a verdict for plaintiff if the jury believed that “. . .at defendant’s request, plaintiff furnished to defendant certain labor and material . . .” As noted, the verdict director twice used the words “defendant” in the singular, without naming defendant Chuck Blossom.

Defendant Blossom appeals, contending the trial court erred by failing to inform the jury the corporate defendant was out of the case and by failing to identify Blossom as the defendant in plaintiff’s verdict director the instruction “was confusing and permitted the jury to return a verdict for plaintiff regardless of to which defendant the jury found the required facts applicable.”

We accept defendant’s argument that “. . . It is essential that if juries are to know what is to be considered and decided, they must be properly advised of rulings on motions to dismiss . . Cato v. Modglin, 545 S.W.2d 307[9-ll] (Mo.App. 1976). This followed Elmore v. Kansas City, 333 S.W.2d 795[3] (Mo.App.1960), where the court said: “. . . Everyone must admit that the jury had to be told sometime that in deliberating and deciding it would be dealing only with Mrs. Elmore as plaintiff and the city [appellant] as the sole defendant.” These are sound general principles, but neither case rules the precise issue before us.

Here, the plaintiff’s verdict director was not inherently erroneous. In using the criticized word “defendant” in the singular it precisely fit the issue to be decided — the liability of the only defendant still in the case. Defendant does not contend otherwise. As said, his premise is that the trial court erred in failing to identify the defendant referred to in the verdict director; his. conclusion is that the jury was thereby confused.

We note several ways the court could have dispelled the alleged confusion. It could have modified the challenged instruction by inserting Blossom’s name after each word “defendant.” (This is suggested by “How to Use This Book,” MAI p. Lii.) Or, the court on its own motion could have given a clarifying instruction, a discretionary power. Barnes v. Marshall, 467 S.W.2d 70[10, 11] (Mo.1971).

We cannot hold defendant Blossom faultless in creating the alleged confusion. His complaint is that by the instruction not naming him, the jury was permitted to consider evidence concerning liability of the discharged corporate defendant. Corrective action was readily available to defendant Blossom and he should have acted. In Wore v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583[3] (Mo.1970) the court held that when, as here, evidence is admissable against one defendant but not the other, the latter is entitled to a clarifying instruction limiting the extent of that evidence, but when no such instruction is requested the trial court is not obliged to give one. It is uniformly held that where a defendant believes plaintiff’s instruction is too general it is defendant’s duty to offer a more specific one. See O’Connell v. Roper Electric Company, Inc., 498 S.W.2d 847[8, 9] (Mo. App.1973). See also cases annotated in MAI, How to Use This Book, Old Principles Still in Force, note 9.

As said, plaintiff’s verdict director using the word “defendant” in the singular fit the issue to be decided — the liability of the only defendant still in the case. We hold that by failing to request the trial court to clarify the verdict-directing instruction defendant may no longer complain.

Aside from defendant’s failure to request a clarification of plaintiff’s verdict director, we consider his conclusion the instruction was confusing. The trial court denied this contention and we agree.

Plaintiff sued both Blossom and the corporate defendant. Plaintiff’s testimony centered on his dealings with Blossom, not the corporation. As said, at the close of plaintiff’s case the trial court agreed and granted the corporation’s motion for a directed verdict. The core of Blossom’s testimony was not that the corporation was liable but that plaintiff had actually contracted with a third party, one Harry Brown, and plaintiff should look to Brown for payment.

After the corporation went out of the case both plaintiff and Blossom treated Blossom as the only defendant. In opening statement, at the close of plaintiff’s case, Blossom’s counsel referred to Blossom as “the defendant.” In closing jury argument his counsel repeatedly referred to Blossom as “the defendant.” So did plaintiff’s counsel.

Despite these salient facts defendant contends the trial court erroneously denied his after-trial motion, contending the jury was confused by the verdict director’s failure to identify Blossom as the defendant.

In James v. Truilli, 473 S.W.2d 757[13 — 15] (Mo.App.1971) we held the test for determining whether an instruction is confusing is whether it would so appear to a jury of reasonably intelligent jurors; that a contention of confusion is addressed initially to the trial court’s discretion and its ruling will be set aside only where that discretion is abused; that discretion is abused only when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Defendant Blossom’s contention of jury confusion utterly fails to meet that test.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Plaintiff’s action was in two similar counts; the court gave two identical verdict directors; the points raised on appeal are the same as to each count.


text:
    Albert BURGESS and Evelyn Burgess, Respondents, v. Bertha Jane WRIGHT and Harry Cozart, Appellants.
    No. 39472.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 2, 1978.

      William E. Alberty, Edina, for respondents.
    Dennis W. Smith, Canton, for appellants.
   CLEMENS,

Presiding Judge.

Plaintiffs, husband and wife, sought and were granted a decree of specific performance based on defendants’ oral contract to convey real estate. Defendants appeal.

The record owners were defendants Harvey Wright and his estranged wife, Bertha, as tenants by the entirety in one-half interest, and Harry Cozart, Bertha’s brother, in one-half interest.

On August 6, 1975 Harvey Wright alone entered into a lease and option agreement with plaintiffs with respect to the farm, Wright falsely executing the contract as a single person and sole owner of the unencumbered property. When plaintiffs learned the farm was mortgaged, they contacted Harvey Wright, who agreed to give them credit against the purchase price for mortgage payments to be made by plaintiffs. Plaintiffs made rental payments to Harvey Wright through March, 1976 and mortgage payments to the bank through April, 1976. Plaintiffs paid the delinquent real estate taxes for 1975; they installed fencing, a gate and paved a roadway. Subsequently, defendant-appellants informed plaintiffs of their ownership and expressed a willingness to sell.

Several meetings occurred in March of 1976 between plaintiffs and defendants, which Harvey Wright did not attend, culminating in the parties having an attorney draw up a contract and warranty deed to the farm. The papers were never signed, however, and in April, 1976, defendants refused to complete the sale.

Trial was had without a jury. At its conclusion, the court issued findings of fact, concluding that in matters of dispute, plaintiffs’ testimony would be accepted. The court found Harvey Wright and plaintiffs had entered into a lease and option agreement which was later amended orally to credit the mortgage payments against the purchase price of $8,000. The trial court found that at the time of contracting, Harvey Wright had deliberately misrepresented the extent of his ownership. The court further found defendants had entered into a specific oral contract to sell the farm to plaintiffs for $8,000, with credit for the mortgage payments plaintiffs had made. Finally, the trial court found sufficient part performance by plaintiffs to remove the contract from the statute of frauds. Specific performance was ordered and title decreed to be in plaintiffs.

On appeal defendants contend the trial court erred in decreeing specific performance because (1) no oral contract was proved; (2) there was no agreement between Harvey Wright and his co-tenant by the entirety, Bertha Wright, to convey the farm; nor was there (3) adequate part performance to remove the oral contract from the statute of frauds.

In reviewing a bench-tried case, we must sustain the judgment of the trial court if there is substantial evidence to support it and if it has properly declared and applied the law. Murphy v. Carrón, 536 S.W.2d 30[1] (Mo.1976). We give due regard to the trial court’s opportunity to have judged the credibility of the witnesses. Sup.Ct. Rule 73.01(3)(b), VAMR.

An exception to the statute of frauds is invoked where to apply the bar is to work a fraud. As declared in Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024[1] (1912) the circumstances under which a court will enforce an oral contract are: (1) The contract must be definite; (2) it must be proven as pleaded; (3) it cannot be established by conversations either too ancient or too loose or casual; (4) it must be fair, not unconscionable; (5) the proof of the contract as pleaded must leave no reasonable doubt the contract was in fact made, and that full performance, so far as lies in the hands of the parties to perform, has been had; (6) the performance must be referable solely to the contract sought to be enforced; (7) the contract must be based upon adequate consideration so that in good conscience its performance is demanded; (8) proof of mere disposition to convey by deed is not sufficient, and there must be shown a real contract to convey by deed made before the acts of performance relied upon were had.

Defendants first contend no oral contract was proved. We disagree. The initial lease and option agreement was in evidence. Plaintiff Albert Burgess testified he and Harvey Wright orally amended the agreement to account for plaintiffs’ assumption of the mortgage. Harvey Wright’s deposition corroborated this. Burgess also testified defendants contacted him shortly thereafter and agreed to the sale after examining the lease and option agreement. Burgess further testified there were two later meetings between the parties, at which the sale terms were agreed upon. Attorney Holliday testified the parties met in his office in March of 1976 and discussed those terms and he drafted a contract accordingly, setting the purchase price at $8,000 with credit given for the mortgage payments. Mr. Holliday stated that while there was some conjecture at the meeting as to whether Harvey Wright would sign the contract, Mr. Wright contacted him later and agreed to the sale. Bertha Wright testified that no purchase price was discussed and no agreement was reached during the meeting at Mr. Holliday’s office.

We have reviewed the record and defer to the trial court’s findings. There was substantial evidence to support its finding that an oral contract to convey the farm was made. The only evidence to the contrary, offered by defendants, lacked credibility. A contract may be established by a combination of documents not themselves meeting the statute of frauds and of oral testimony. Alonzo v. Laubert, 418 S.W .2d 94[10] (Mo.1967). We find the alleged contract was in fact made.

Defendants next contend the trial court erred because the evidence fails to establish an agreement between Harvey and Bertha Wright, as co-tenants by the entirety, to sell their share of the farm. They argue that Harvey Wright and Bertha Wright each entered into a separate and distinct contract of sale. They contend the contract is invalid because entered into by only one of the two tenants by the entirety.

It is true an estate by the entirety cannot be conveyed by one spouse alone. Kaufmann v. Krahling, 519 S.W.2d 29[2] (Mo.App.1975). However, the agency of one spouse for the other may be shown by direct evidence or by such circumstances as will warrant an inference that one was empowered to act for the other. Austin and Bass Builders, Inc. v. Lewis, 350 S.W .2d 133[3 -5] (Mo.App.1961), reversed on other grounds, 359 S.W.2d 711 (Mo.1962).

Here, the evidence shows a single contract entered into by Harvey Wright, and ratified by Bertha Wright, his co-tenants; she knew' of the lease and option agreement in both its original and amended form; she wrote plaintiffs to inquire about the rent being paid under the agreement. Furthermore, Mrs. Wright entered into an oral contract at her meetings with plaintiffs. The terms of the oral contract entered into by Bertha Wright were identical with those of the amended lease and option agreement entered into by Harvey Wright.

The oral contract ratified the lease and option agreement.

Defendants finally contend the trial court erred in ordering specific performance because there was no evidence of plaintiffs’ part performance of the oral contract sufficient to avoid the statute of frauds. They contend any acts of part performance were referable to the lease and option contract and not the oral contract of sale.

Where partial performance is relied on to take a contract out of the statute of frauds, the acts relied on must be exclusively referable to the contract and not pursuant to some other relationship. Alonzo v. Laubert, 418 S.W.2d 94[10] (Mo.1967). Defendants’ argument rests on the assumption the lease and option agreement is separate and distinct from the later oral contract. Our discussion of defendants’ second point relied on refutes this argument. The evidence shows a single contract was entered into on August 6, 1975 by Harvey Wright and ratified in March of 1976 by Bertha Wright and her brother Harry Co-zart. Subsequently, plaintiffs substantially improved the property. They made defendants’ mortgage payments and paid the 1975 real estate taxes. These acts were clearly referable to the lease and option contract and to no other relationship between the parties. The possession of land, accompanied by erection of improvements, may suffice to take a contract out of the statute of frauds. Anderson v. Abernathy, 339 S.W.2d 817[3] (Mo.1960).

Applying the standards set forth in Murphy v. Carrón, 536 S.W.2d 30 (Mo.1976), we hold the trial court did not err.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Defendant Harvey Wright defaulted and has not appealed.


author: BROCK, Justice.

text:
    Tommy GOLDSTON, Petitioner, v. CITY OF HARRIMAN, Respondent.
    Supreme Court of Tennessee.
    April 24, 1978.
    Joe H. Walker, Harriman, for petitioner.
    J. Frank Qualls, Harriman, for respondent.
   OPINION

BROCK, Justice.

Defendant was fined $50.00 for violating a city ordinance prohibiting the sale of beer. The Court of Appeals affirmed and we granted certiorari.

The City of Harriman, the self-styled “Utopia of Temperance,” both by its charter and by municipal ordinance, purports to restrict the sale of beer within its geographical limits. Article II, Section 18(12) of the City’s charter makes it unlawful to sell or tipple any intoxicating liquor within one mile of a school or church or within 1000 feet of an occupied dwelling. Harri-man City Ordinance 2-201 prohibits outright the sale of beer within the City.

No factual dispute exists regarding the alleged offense itself. On November 15, 1975, the day he officially opened his convenience food market located within the City of Harriman across the street from a city school, defendant sold to the chief of police a six-pack of beer.

Defendant’s challenge to his conviction and fine is based upon the acknowledged fact that eight other establishments were openly selling beer within the City of Harri-man without interference from municipal authorities on the date of his arrest. Asserting that he had a valid permit to sell beer within the City, defendant argues that his arrest represents selective enforcement of the laws in violation of the Fourteenth Amendment of the United States Constitution and of Article XI, Section 8 of the Tennessee Constitution.

The City, however, seeks to distinguish the defendant’s status and justifies his arrest by its insistence that defendant’s beer permit was invalid because issued by the Roane County Beer Board, without authority of the City of Harriman.

The question of the scope of the authority of the Roane County Beer Board has its origin in the annexation, in 1961, of a large area adjacent to the City of Harriman, known today as South Harriman. Prior to that time there were no establishments selling beer within the City. The annexed territory, however, included seven beer establishments that had previously operated under valid permits issued by the Roane County Beer Board which, by virtue of the annexation and the City’s prohibition of the sale of beer, stood to become unlawful overnight.

The annexation of the territory surrounding the City of Harriman was contested in the Chancery Court of Roane County. As a result of this litigation, the parties entered into a compromise agreement, approved by the court. Section 7 of this consent decree provided:

“It is recognized that this settlement presents something of a problem with reference to the continued sale of beer at properties within the areas annexed and by persons who were already licensed by Roane County for this purpose, when the annexing ordinance in question was passed, in view of the Charter of the City of Harriman and ordinance relative thereto. In view of the decision of the Supreme Court of Tennessee in the case of Sparks v. Beer Committee of Blount County, reported in [207 Tenn. 312] 339 S.W.2d 23, there is some doubt that the annexation herein in question could be applied ipso facto and retroactively so as to eliminate these licenses and businesses already established when the annexation ordinance was passed. Accordingly, the City of Harriman agrees to leave the matter of the continuation [or] revocation of said licenses to the jurisdiction of the Roane County Beer Board, their licenses having been granted by said Board; except that the City of Harriman does not agree ... to the issuance of any further or additional beer license or licenses or additional property or properties for the sale of beer within the areas annexed.” (Emphasis added.)

Section 1 of the consent decree provided that the annexation would be effective January 15, 1963.

Also, in 1966 the Roane County Beer Board issued a beer permit to an individual to sell beer at the Holiday Inn which, at that time, was located outside the .city limits of Harriman. But, in 1967 the City effected a second major annexation of surrounding territory including the Holiday Inn. Because the Holiday Inn, like the seven beer establishments located in the territory annexed in 1961, was licensed to sell beer before it became a part of the City, it too was permitted by municipal authorities to continue the sale of beer.

According to uncontradicted testimony introduced at trial, since the date of the Chancery Court decree authorizing the continuation of the sale of beer in the annexed territory by persons already licensed to sell beer, the Roane County Beer Board has issued new licenses for the sale of beer to successor owners of several beer establishments that were annexed in 1961.

Thus, prior to defendant’s arrest, permits issued by the Roane County Beer Board authorizing the sale of beer in the City of Harriman, despite the City’s ostensible prohibition against its sale, fell into these categories: (1) permits whose validity was continued by the Chancery Court decree after the initial annexation, (2) a permit whose validity was continued after a second annexation under the rationale of the Chan-eery Court decree, and (3) permits issued since the first annexation to new owners of beer establishments that were authorized to sell beer at the time they were annexed.

On August 7, 1975, the Roane County Beer Board issued a beer permit to defendant for the sale of beer at Goldston’s Quik-Shop, a new outlet for the sale of beer located within the city limits of Harriman across the street from a public school.

In apparent response to the Board’s issuance of this permit to the defendant, the City Council of Harriman adopted a resolution on September 9, 1975, reciting the history of the City’s agreement with the Roane County Beer Board regarding beer permits and stating that “the parties did not desire to prohibit those persons holding valid beer permits from selling beer at the same locations when the annexation ordinance became effective,” and that “it was never at any time the intention of the City of Harriman, Tennessee, to grant or give to the Roane County Beer Board the authority or jurisdiction to issue a new beer permit or license to any person for a business located within the corporate limits of the City of Harriman, Tennessee.” By this resolution the City Council decreed that “any authority or jurisdiction of the Roane County Beer Board to issue a beer permit or license to any person for any business located within the corporate limits of the City of Harri-man, Tennessee, is hereby revoked and rescinded.”

At trial, the assistant chief of police testified that he bought a six-pack of beer from the defendant on November 15, 1975, at defendant’s package store. He testified that the store was located within the corporate limits of Harriman and across the street from a school. On cross-examination the police officer testified that the arrest was made pursuant to express instructions of the Mayor and two police commissioners and that he had been instructed not to bother other beer establishments selling' beer within the City. He further testified that one of the police commissioners had followed him for half a day to make sure he made the arrest.

We conclude that the defendant has failed to demonstrate an unconstitutional or otherwise impermissible discrimination by the City in the application and enforcement of its beer regulations and, therefore, affirm the judgments of the lower courts.

It is fair to state that confusion and uncertainty respecting the regulation of the sale of beer within the corporate limits of the City of Harriman has reigned since the entry of the above-mentioned compromise decree in the Chancery Court for Roane County dealing with the 1961 annexation of South Harriman. But, as we understand it, following the 1961 annexation and the entry of the Chancery Court decree in which the City of Harriman agreed to recognize the validity of beer permits for outlets located within the annexed territory which had already been issued by the Roane County Beer Board and were then outstanding and in which the City “ . . agrees to leave the matter of the continuation or revocation of said licenses to the jurisdiction of the Roane County Beer Board, . ” it has been the policy of the City with respect to the sale of beer within the corporate limits that such sales were unlawful, except pursuant to a permit which had been previously issued by the Roane County Beer Board and was in full force and effect at the time of annexation and the entry of the Chancery Court decree on January 15, 1963.

Although such appears to have been the new policy of the City respecting the sale of beer within the corporate limits, no new ordinance or amendatory ordinances were adopted reflecting such a policy. Nevertheless, we are of the opinion that the City, by reason of the agreement incorporated into the Chancery Court decree, became estopped to enforce its ordinance prohibiting the sale of beer within the City limits against those who held valid beer permits from the Roane County Beer Board at the time of the 1961 annexation. Zimmerman v. Gritzmacher, 53 Or. 206, 98 P. 875, 1135 (1909); 56 Am.Jur.2d Municipal Corporations § 421 (1971).

However, this estoppel does not benefit or protect the defendant; he was not one of those holding a valid permit for the sale of beer issued by the Roane County Beer Board prior to the 1961 annexation for a location within the annexed territory.

Neither does the conduct of the City recognizing the continued validity of the Holiday Inn beer permit which had been issued by the Roane County Beer Board prior to annexation of the location in 1966 furnish any aid to the defendant. We do not find it necessary to decide whether the City was bound to recognize the continuing validity of the Holiday Inn permit after the 1966 annexation became effective, see Sparks v. Beer Committee of Blount County, 207 Tenn. 312, 339 S.W.2d 23 (1960); suffice it to say that we are of the opinion that to recognize the continued validity of such a permit under the circumstances would not be an arbitrary or unreasonable action.

Failure of the City to enforce its ordinance prohibiting the sale of beer within the City limits against the Holiday Inn or those who held permits at the time of the 1961 annexation does not, in our opinion, amount to unequal and discriminatory administration of the ordinance “with an evil eye and an unequal hand” which, of course, is not permissible under the equal protection clauses of the Fourteenth Amendment and of Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Berry v. Arapahoe and Shoshone Tribes, 420 F.Supp. 934 (D.C.1976).

The same is true with respect to the third category of permit holders, viz., successor owners of establishments which were duly licensed by the Roane County Beer Board at the time of the 1961 annexation. The original owners had died or sold the establishments to the successor owners. It does not appear that the City was aware of the fact that ownership of these establishments had changed or that the Roane County Beer Board had issued new permits to the successor owners.

Finally, it is clear that the City of Harriman has not authorized the Roane County Beer Board to issue a beer permit to one in the circumstances of the defendant. Thus, the agreement incorporated in the compromise Chancery decree specifically provided:

“ . . except that the City of Harriman does not agree ... to the issuance of any further or additional beer license or licenses or additional property or properties for the sale of beer within the areas annexed.”

We conclude that the City has not in any way estopped itself from enforcing its ordinance against the defendant.

The judgment of the Court of Appeals and of the trial court are affirmed and costs taxed against the petitioner.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ„ concur.


text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Jayne Ann WOODS, Commissioner of Revenue, State of Tenn. and Henry T. Vance, Jr., Appellees.
    Supreme Court of Tennessee.
    May 8, 1978.

      Phillip North, Nashville, for appellant; Howell & Fisher, Nashville, of counsel.
    Davis S. Weed, Asst. Atty. Gen., Nashville, for appellees; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

This is an action to recover sales taxes and franchise and excise taxes paid under protest by the plaintiff to the defendant Commissioner of Revenue. The Chancery Court heard the case on the merits and rendered a decision in favor of the Commissioner from which the plaintiff appeals.

The disputed taxes were paid by the plaintiff in its capacity as surety on a bond required by T.C.A., § 57-158(3), to be posted by applicants for licenses to sell liquor by the drink. The principals were Andrew Johnson Properties, Inc., and its president, Henry T. Vance, Jr.

The corporation owned and operated the Andrew Johnson Hotel in Knoxville and the bond in question was executed when it was decided to open a cocktail lounge in a portion of the hotel premises. Within a few months after the bond was posted, the corporation bankrupted and went out of the hotel business, including operation of the lounge.

The issue presented is not whether the disputed taxes were duly owing and payable by the taxpayer but whether the bond obligation assumed by the plaintiff-surety included payment of sales taxes and franchise and excise taxes incurred by the taxpayer, not in connection with the operation of the lounge, but in connection with its other business activities, such as renting the rooms in the hotel.

The record indicates that the receipts from the lounge amounted to approximately 10 percent of the total receipts of the hotel corporation and that the taxes incurred in the sale of alcoholic beverages for consumption on the premises amounted to a total of $1,203.44 while the taxes incurred in connection with the other hotel operations amounted to $6,222.72, sales tax, and $1,411.70, franchise and excise tax.

The bond was drafted by the Commissioner or her predecessor, and is entitled:

“BOND

SALE OF ALCOHOLIC BEVERAGES FOR CONSUMPTION ON THE PREMISES.”

It provides, in pertinent part, as follows:

“The above amount ($10,000.00), may be subject to adjustment after the business has been in operation for three complete calendar months, at which time the penal sum thereof shall be no less than four times the average monthly liability of all taxes applicable to sales of alcoholic beverages during the initial three month period . . . . Annually thereafter, the penal sum of the bond shall be for an amount no less than four times the average monthly tax liability for all taxes resulting from sales of alcoholic beverages.
* * * * * *
“WHEREAS, the conditions of this obligation are such that the above bounden principal, who has been issued a permit to sell alcoholic beverages for consumption on the premises, as authorized by Chapter 1, Title 57, of the Tennessee Code Annotated, is required by said Chapter to pay gross receipts tax in the amount of 15 per cent of' the sales price of all alcoholic beverages sold for consumption on the premises; .
“AND WHEREAS, said principal is further obligated by said Chapter to post with the Commissioner of Revenue an indemnity bond to secure the proper payment of all taxes for which the principal may become liable, such taxes to include, but not limited to, those levied by Section 57-157, T.C.A., and Sales Taxes imposed under Chapter 30 of Title 67, T.C.A., applicable to sales of alcoholic beverages. “NOW, THEREFORE, if the above bounden principal shall faithfully perform the duties imposed upon him and shall well and truly comply with all of said laws and the Rules and Regulations pursuant thereto and shall particularly, promptly and properly account to the State of Tennessee for all sales of alcoholic beverages sold to be consumed on the premises and pay all taxes, interest and penalties for which the licensee may become liable, as provided by statute and any Rule and Regulation promulgated thereunder, such taxes to include, but not limited to, those levied by Section 57-157, T.C.A., and Sales Taxes applicable thereto imposed under Chapter 30 of Title 67, T.C.A., then this obligation shall be null and void; otherwise it shall remain in full force and effect. * * *”

The proper construction of a contractual document is not dependent on any name given to the instrument by the parties, or on any single provision of it, but upon the entire body of the contract and the legal effect of it as a whole. Arbuckle v. Kirkpatrick,, 98 Tenn. 221, 39 S.W. 3 (1897).

The whole contract must be considered in determining the meaning of any or all of its parts. Crouch v. Shepard, 44 Tenn. 383 (1867); Associated Press v. WGNS, Inc., 48 Tenn.App. 407, 348 S.W.2d 507 (1961); Restatement of Contracts § 235(c).

“The principal apparent purpose of the parties is given great weight in determining the meaning to be given to manifestations of intention of any part thereof.” Restatement of Contracts § 236(b).

The bond here in question was authorized and required by Section 3 of Chapter 211 of the Public Acts of 1967, now codified as T.C.A., § 57-158. We may assume, therefore, that the purpose of the parties in executing this bond was to comply with the requirements of that statute, nothing more and nothing less.

Although a bond is nonetheless a contract because it is required by a statute, statutory bonds are construed in the light of the statute creating the obligation secured and the purposes for which the bond is required, as disclosed in the statute. The statute which provides for the giving of a bond becomes a part of the bond and imports into the bond any conditions prescribed by the statute which are not in fact included in the bond as written. Although the obligor and his surety may assume a greater obligation than that required by the statute, it is presumed that the intention of the parties was to execute such a bond as the law required. State ex rel. County Court of Pleasants County v. Anderson, 140 W.Va. 827, 87 S.E.2d 249 (1955).

The obligations under a bond required by statute are to be measured by the particular statute requiring the bond, together with other applicable statutes. Giese v. Engelhardt, N.D., 175 N.W.2d 578 (1970). And, if a statutory bond contains conditions that are not prescribed by the statute, such conditions may be eliminated as surplusage. American Casualty Company v. Irvin, 426 F.2d 647 (5th Cir. 1970); Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 415 P.2d 236 (1966); Monte Rico Mill and Mining Co. v. USF&G Co., 35 N.M. 616, 5 P.2d 195 (1930); Western Casualty & Guaranty Ins. Co. v. Muskogee County, 60 Okl. 140, 159 P. 655 (1916).

Therefore, we turn to the statute which authorized and required the execution of this bond in order to ascertain the scope of liability required by the statute of one who executes such a bond. In construing the statute, we seek to ascertain the intention of the legislature as it is expressed in the words of the statute and for this purpose we look to the entire statute, including its caption, policy statement, if any, and recitals which provide the purpose, objective and spirit behind the legislation. Dorrier v. Dark, Tenn., 537 S.W.2d 888 (1976); Harrell v. Hamblen County Quarterly Court, Tenn.App., 526 S.W.2d 505 (1975).

The statutory provisions for the bond as well as the taxes here involved were constituent parts of Chapter 211 of the Public Acts of 1967, now codified as T.C.A., §§ 57-152 — 57-164, which authorized the sale of intoxicating liquors by the drink for consumption on the premises, imposed taxes upon such sales and provided for the collection thereof. In order that the bond provisions may be seen in context, we quote pertinent portions of that Act, as now codified, which appear both before and after the bond provision:

“57-157. Consumption on premises— Privilege taxes — Tax on retail sales. — It is hereby declared the legislative intent that every person is exercising a taxable privilege who engages in the business of selling at retail in this state alcoholic beverages for consumption on the premises. For the exercise of such privilege, the following taxes are levied for state purposes to be paid annually, to wit: * * * * * *
“(b) In addition to the privilege taxes levied in (a) above, there is further levied a tax equal to the rate of fifteen per cent (15%) of the sales price of all alcoholic beverages sold for consumption on the premises, .
“57-158. Collection of taxes. — The commissioner of revenue of the state of Tennessee is charged with the responsibility of collecting all taxes set out herein due to the said state, and in addition, to the requirements set out herein, is authorized to promulgate such rules and regulations as will further implement the full collection of all taxes herein imposed.
“(1) . . . The tax hereby imposed shall be collected by the retailer from the consumer insofar as it can be done.
* * * * * *
“(3) BOND OF LICENSEE — Every licensee permitted to do business in the state of Tennessee shall, as a condition precedent to the granting of his license, in addition to all other requirements set out herein, post with the commissioner of revenue of the state of Tennessee, an indemnity bond with good and solvent corporate surety, approved by him, in an amount equal to four (4) times the average monthly tax liability as determined by the commissioner or in the amount of one thousand dollars ($1,000) whichever is greater, conditioned upon the proper payment of all taxes for which the sale licensee may become liable. The forfeiture or cancellation of said bond, for any reason whatsoever, shall automatically revoke the license granted herein. The bond provided for herein shall run for such time as may be determined by the commissioner.
“(4) TIME OF PAYMENT — The taxes levied hereunder in subdivision (b) of § 57-157 shall be due and payable monthly, . .
“(5) TAX TRANSMITTED WITH RETURN — At the time of transmitting the return required hereunder to the commissioner the licensee shall remit to him therewith the amount of tax due under the applicable provisions of this chapter
“57-159. Settlement of tax on quitting business. — If any licensee liable for any tax, interest or penalty levied hereunder shall sell out . ...
“57-160. Interest and penalties for delinquency—Extension of time for making return.—When any licensee shall fail to make any return and pay the full amount of the tax required by this chapter .
[i]n the case of a false or fraudulent return, where willful intent exists to defraud the state of any tax due under this chapter, .
“57-161. Collection of tax from debtor of licensee.—In the event any licensee is delinquent in the payment of the tax herein provided for, . . . .” (Emphasis added.)

Admittedly, if subparagraph 3 of § 57-158, above quoted, were lifted totally out of context and considered alone, the condition of the bond required could be construed as requiring proper payment of all taxes of whatever nature, whether arising from the sale of alcoholic beverages for consumption on the premises or not. But, as indicated by the authorities above referred to, it is our duty to construe the statutory provision respecting the bond as an integral part of the whole statute rather than as an isolated provision lifted out of context from the remainder of the statute. When one considers the obvious purpose of the statute to provide for the authorization and regulation of the sale of intoxicating liquors by the drink for consumption on the premises of the sellers and to levy taxes upon such sales and provide for the collection thereof, we think the conclusion is inescapable that the intent of the legislature was to require a bond whose obligation is limited to payment of all state taxes which are incurred by the sale licensee by reason of his sale of alcoholic beverages for consumption on the premises. In our opinion, the legislature did not intend that such a bond should cover taxes incurred by a sale licensee by reason of activities other than the sale of intoxicating liquors for consumption on the premises.

We assume that the Commissioner in drafting the bond intended to exact from the obligor and surety the obligation required by the statute and no more, since that was the extent of the Commissioner’s duty in this respect under the statute; and, considering the disadvantageous bargaining position of the taxpayer and his surety, we cannot ascribe to them, on the basis of the evidence in this record, an intention to assume an obligation greater than the one required by the statute. Moreover, we deem it of considerable significance that the penal sum of the bond is measured by a multiple of “the average monthly liability of all taxes applicable to sales of alcoholic beverages . . . ”

The Commissioner argues that the words, “ . . such taxes to include, but not
limited to, those levied by § 57-157, T.C.A., and sales taxes applicable thereto imposed under Chapter 30 of Title 67, T.C.A., . . . ” (Emphasis added.)

disclose an intention to include within the obligation of the bond taxes in addition to those applicable to sales of alcoholic beverages. However, considering the context in which these words appear and considering the obvious overall purpose of the statute, we are unable to agree with that conclusion.

We think it also of considerable significance that the statutes which levy the sales taxes and franchise and excise taxes which the Commissioner contends are covered by the obligation of this bond do not specifically require the posting of an indemnity bond as does the sale of alcohol by the drink statute. We are not aware that such statutes contain any bond requirement or authorization other than those found in T.C.A., §§ 67-3020(c) and 67-3033, which deal with sales taxpayers who have become delinquent. These provisions do not apply to the parties or the situation disclosed by this record.

In summary, we hold that the bond in question is limited in its obligation to the payment of only those taxes levied by the State of Tennessee and incurred by the sale licensee in connection with the sale of alcoholic beverages for consumption on the premises; and that the plaintiff surety is entitled to recover from the defendant Commissioner all taxes paid under protest, with interest, which were not incurred by the taxpayer in connection with the sale of liquor by the drink for consumption on the premises. The decree of the trial court is reversed and the case is remanded to that court for appropriate proceedings consistent with this opinion. Costs are taxed against the Commissioner.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . See Varner Construction Co. v. Mid-South Specialties, Tenn., 547 S.W.2d 569, 571 (1977); City of Knoxville v. Burgess, 180 Tenn. 412, 175 S.W.2d 548 (1948).


text:
    Lewis WEAVER, Appellant, v. J. D. WALLACE, Commissioner of the Tennessee Department of Employment Security and United States of America, Appellees.
    Supreme Court of Tennessee.
    May 9, 1978.

      Wm. C. Gosnell, Memphis, for appellant.
    Sam J. McAllester, Jr., Nashville, for Commissioner Wallace.
    Devon L. Gosnell, Memphis, for United States.
   OPINION

BROCK, Justice.

The plaintiff, Lewis Weaver, seeks to secure unemployment insurance benefits under the Tennessee Employment Security Law, T.C.A., § 50-1301, et seq. The administrative agency denied his claim upon the ground that the plaintiff had been discharged for “misconduct connected with his work,” and was, therefore, disqualified, under the provisions of T.C.A., § 50-1324 B(2), to receive benefits. The plaintiff sought review in the Chancery Court for Shelby County and that court affirmed the administrative decision. He then appealed to this Court.

The plaintiff was employed by the United States government at its defense depot in Memphis on May 28, 1974, as a fork lift operator and continued in that employment until he was discharged on April 24, 1975. This was his last employment prior to his application for the unemployment security benefits which are in dispute in this case. The United States government, the employer, acting through its proper officer, the Supervisory Personnel Clerk at the defense depot, stated that its reason for discharging the plaintiff was:

“Separation processed at request of the Civil Service Commission for failure to meet the Commission’s suitability standards for federal employment due to the following records of arrests and convictions:
“02-07-73 assault and battery . $50.00 and sixty days; carrying a dangerous weapon . . thirty days; 09-30-73 drunk . . $50.00 bond forfeited; 08-13-74 possession of marijuana . . . eleven months and twenty-nine days deferred and $43.05.”

The controlling federal statute, 5 U.S.C. § 8506 requires that state agencies such as the Tennessee Department of Employment Security in this case, when administering their unemployment insurance laws with respect to civilian federal employees, must accept as “final and conclusive” the findings made by the federal employing agency with respect to “the reason for termination of Federal service.” See McKeon v. Unemployment Compensation Bd., 195 Pa.Super. 69, 169 A.2d 332 (1961); 76 Am.Jur.2d Unemployment Compensation § 43 (1975).

Accordingly, the administrative agency accepted the above quoted statement of the reason for the plaintiff’s discharge as fact and reached the legal conclusion that the plaintiff’s record of arrests and convictions there recited constituted “misconduct connected with his work.” However, the Chancellor, in affirming the action of the administrative agency, based his decision upon an altogether different ground, i. e., that the plaintiff had been discharged by his federal employer for misconduct connected with his work “in that he failed to truthfully answer the questions on application for employment.” We conclude that the decisions of the Chancery Court and of the administrative agency were erroneous.

First, the Chancellor was required to accept as “final and conclusive” the findings of the federal employing agency concerning the reason for the plaintiff’s discharge from his federal employment, as shown by the statute and authorities, supra. Accordingly, he was not free to determine that the reason for the plaintiff’s discharge was his alleged failure to truthfully answer the questions on his application for employment, but, instead, was bound to accept the statement by the federal employing agency that the reason for plaintiff’s discharge was the record of arrests and convictions set out above.

Did the reasons ascribed by the federal employing agency for the plaintiff’s discharge amount to “misconduct connected with his work?” This determination is to be made by state agencies applying state law. McKeon v. Unemployment Compensation Board, supra; Saulls v. Employment Security Agency, 85 Idaho 212, 377 P.2d 789 (1963). We hold that they did not. The unemployment compensation statutes were enacted for the benefit of unemployed workmen and are to receive a liberal interpretation by the courts. Milne Chair Company v. Hake, 190 Tenn. 395, 230 S.W.2d 393 (1950). The disqualification because of “misconduct connected with their work” provision, being penal in nature, is to be construed liberally in favor of the employee so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception. Cheese v. Afram Brothers Company, 21 Wis.2d 8, 123 N.W.2d 553 (1963); Ciufo v. Brown, La., 148 So.2d 459 (1963); Spaulding v. Florida Industrial Commission, Fla.App., 154 So.2d 334 (1963); 81 C.J.S. Social Security § 222 (1977).

There are few reported decisions delineating the scope of the phrase “misconduct connected with the work” but the general outline of the scope of the intended disqualification is well stated at 81 C.J.S. Social Security § 222 (1977), as follows:

“Depending on the specific provisions of the statute, in order to disqualify an employee for unemployment benefits his misconduct must be in the course of his most recent work, connected with his work, or connected with the employment. Under such provisions, it is not necessary that the act of misconduct occur during the working hours or at the place of employment, so long as it is connected with the employment, and the fact that misconduct relates to the private life or off-duty activities of the employee does not necessarily preclude its having a connection with the employment requisite to bar the right to compensation. Ordinarily, however, an employee’s conduct off the working premises or outside the course or scope of his employment is not considered as misconduct in connection with employment.”

In our opinion, the standard to be applied is that of the employment contract, whether express or implied, which fixes the employee’s duties in connection with his work; an essential element of “misconduct connected with the work” is a breach of duty owed to the employer, as distinguished from society in general. Detterer v. Unemployment Compensation Board of Review, 168 Pa.Super. 291, 77 A.2d 886 (1951); Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941); Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Yale L.J. 147, 163 (1945). Unless the employee’s wrongdoing violates a duty owed to the employer, it cannot amount to that “misconduct connected with his work ” which serves to disqualify him to receive unemployment insurance benefits, although it may fully justify the employer in discharging him.

Applying these standards, we now consider whether the record of arrests and convictions of the plaintiff, cited by the federal employing agency as a reason for his discharge, amounts to “misconduct connected with his work.” The meagerness of the record concerning the reasons for the plaintiff’s discharge renders our task more difficult and, in this connection, it must be remembered that the burden of proving a disqualification to receive benefits is on the employer.

With respect to the offenses of assault and battery, carrying a dangerous weapon and “drunk” we conclude that, in the circumstances presented here, these can in no sense be considered to be misconduct connected with the plaintiff’s work because they predated the plaintiff’s employment by the United States government. Obviously, an employee’s wrongdoing if committed pri- or to his employment with his last employer can in no sense be considered to be “misconduct connected with his work” for that employer. Employment Security Commission v. Acosta, 93 Ariz. 120, 378 P.2d 929 (1963).

Thus, the question is reduced to whether the plaintiff’s arrest and conviction for possession of marijuana and his suspended sentence of 11 months and 29 days imprisonment and payment of costs of $43.05 amounts, under the circumstances of this case, to “misconduct connected with his work.” The only evidence in the record concerning the circumstances of this offense indicate that the charge was based upon the discovery by police officers of marijuana in the residence of the plaintiff. There is no evidence that this offense in any way involved the violation of any duty owed to the employer. Therefore, we conclude that the record fails to contain any evidence that this offense amounts to misconduct connected with the plaintiff’s work. Accordingly, we hold that the trial court and the administrative agency erred in concluding that the plaintiff was disqualified from receiving unemployment insurance benefits.

II

Because the United States of America was the employer of the plaintiff employee, it was named a party defendant in the petition for certiorari filed in the Chancery Court to review the action of the administrative agency, the joinder as a defendant of the employer being required by T.C.A., § 50-1325(1), which provides for appellate review of adverse administrative decisions as follows:

“Filing a petition for certiorari in the chancery court of the county of such party’s residence against the commissioner for review of such decision, in which petition any other party to the proceeding before the board of review shall be made a defendant and duly served with process. For the purposes of this subsection, the parties to the proceeding before the board of review shall be deemed to include the original claimant or applicant for benefits, and each and every employer from whom such claimant received . any wages for insured work, whether or not any such party appeared and participated in the proceeding before the board of review; and all such parties shall be deemed necessary parties to any petition for certiorari filed pursuant to this subsection.”

The first response of the United States to the petition for certiorari was an answer which responded to the allegations of the complaint on the merits and did not raise any issue respecting jurisdiction or the consent of the United States of America to be sued. This answer was filed on July 7, 1976. However, on January 19, 1977, the United States of America filed a motion to dismiss the complaint “on the basis that the petition fails to state any jurisdictional basis for its suit against the United States.” The Chancellor granted this motion to dismiss the United States as a party defendant in the same order in which he decided the case on the merits.

Of course, there is no doubt of the sovereign immunity of the United States from suit, United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), but the question presented is whether that immunity has been waived by the Congress through its enactment of 5 U.S.C. § 8502 providing for a federal employees employment program. The statute provides that the United States may enter into an agreement with a state, or with an agency administering the unemployment compensation law of a state, under which the agency will pay compensation to federal employees who have lost their jobs in the same amount, and subject to the same conditions, as the compensation would be payable to them under the state unemployment compensation law. Subsection (d) of 5 U.S.C. § 8502 is particularly pertinent to this issue, in that, it provides:

“A determination by a State agency with respect to entitlement to compensation . shall be subject to review in the same manner and to the same extent as determinations under the State unemployment compensation law . . .

In our opinion, this provision amounts to an implied, if not express, consent by the Congress for the United States to be sued to the extent necessary to provide “review in the same manner and to the same extent as determinations under the State unemployment compensation law.” Conrad v. Unemployment Insurance Appeals Board, 47 Cal.App.3d 237, 120 Cal.Rptr. 803 (1975); Constantopoulos v. New Hampshire Department of Employment Security, 107 N.H. 400, 223 A.2d 418 (1966). See also United States v. Hellard, 322 U.S. 363, 368, 64 S.Ct. 985, 88 L.Ed. 1326 (1944); Smith v. District Unemployment Compensation Board, 140 U.S.App.D.C. 361, 435 F.2d 433 (1970). We agree with the statement of the New Hampshire court in the Constantopoulos decision, to wit:

“It follows, therefore, that if the United States cannot be joined as party to this proceeding, neither the Superior Court nor this court could render a judgment which would bind it or its agency, the employer of plaintiff, and the review procedure provided by the State would be ineffective and nugatory. However, Congress has expressly stated that ‘Any determination by a State agency with respect to entitlement to compensation . shall be subject to review in the same manner and to the same extent as determinations under the State unemployment compensation laws. . . ’ “We hold that Congress has thus expressed a clear intent to subject the United States to appeal procedures and requirements of the State Unemployment Compensation Act. In doing so it has necessarily waived the sovereign immunity of the United States to the extent necessary to make ‘any determination by a State agency . . . subject to review in the same manner and to the same extent as determinations under the State unemployment compensation law.’ ” 223 A.2d at 422.

Accordingly, we conclude that the United States of America through the Act of Congress above cited has waived its immunity from suit to the extent necessary to administer the unemployment compensation laws for the benefit of federal employees and that the trial court erred in dismissing the United States from this suit upon the ground of immunity. The decree of the Chancery Court is reversed and this cause is remanded to the administrative agency for further proceedings consistent with this opinion.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . In Wallace v. Stewart, Tenn., 559 S.W.2d 647 (1977) we discussed “misconduct connected with the work” as- it pertains to absenteeism.

      . We are not to be understood as questioning in any way either the propriety or the right of the plaintiffs employer to discharge him because of his record of arrests and convictions; we merely decide the issue whether his discharge for that reason amounts to “misconduct connected with his work.”
      It should be noted too, in all fairness to the plaintiff, that he denies the alleged convictions for assault and battery and carrying a dangerous weapon and for “drunk.” He admits the arrests upon these charges but contends that he appealed the conviction for assault and battery and carrying a dangerous weapon and that his convictions were reversed upon appeal; with respect to the “drunk” charge, he contends that his appearance bond was forfeited because he was unable to find the proper courtroom due to the remodeling of the courthouse in which his trial was to be conducted. However, for the purposes of deciding the case, we have assumed that the plaintiff was in fact convicted upon these charges since that was stated by the federal employing agency as the fact.