author: CLARK, Judge.

text:
    Ralph COHEN and Marilyn J. Cohen, Plaintiffs-Respondents, v. John E. CRUMPACKER, as Guardian of the Estate of Mary M. Crumpacker, Defendant-Appellant.
    No. KCD 29707.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Robert F. Sevier, Roger G. Burnett, Liberty, for defendant-appellant.
    Lyle E. Spillman, Trenton, for plaintiffs-respondents.
    Before SHANGLER, P. J., WASSER-STROM, C. J. and CLARK, J.
   CLARK, Judge.

At issue in this appeal is the decree of the trial court ordering specific performance of a contract for the sale of a farm consisting of some 240 acres in Putnam County. That contract was made April 17, 1976 between respondents as buyers and appellant as seller. On the contract date, appellant was acting on behalf of his mother, the owner of the land, pursuant to a general power of attorney she had executed September 16, 1974 and which was filed of record in Putnam County September 27, 1974. By reason of events subsequently described, appellant appears in the action as guardian of his mother’s estate and appeals the judgment ordering completion of the sale according to the contract terms.

Appellant asserts three grounds on which he claims the action of the trial court to be erroneous, (a) that appellant should not have been obligated to proceed to trial without counsel, (b) that the contract was not specifically enforceable because incomplete in its terms, and (c) that the circuit court did not have jurisdiction to order sale of property of an incompetent ward. Affirmed.

By the terms of the real estate sale contract, a printed form with blanks for particular details, the sale was to be closed May 20, 1976 at the office of the realtor. A portion of the purchase price, $84,000.00, was paid at the signing of the contract, additional amounts were payable at closing and on December 1, 1976 and the financed balance of $59,640.00 was to be evidenced by a promissory note payable to the seller by installments during a term of eleven years with interest at eight percent. The debt was to be secured by a first deed of trust on the property and, in the language of the printed contract, was to be “in a form approved by seller.”

At a date undisclosed in this record, appellant’s mother, Mary Crumpacker, was apparently adjudicated an incompetent by proceedings in the Probate Court of Clay County. No information has been supplied as to the nature of the infirmity, mental or physical, which precipitated this adjudication, the onset and prior duration of the disability, nor may it be said with certainty whether appellant was appointed guardian of his mother’s person or of her estate or both. For purposes of this opinion, we assume, as did the parties before the trial court and in their briefs here, the meager factual ingredients of Mary Crumpacker’s adjudication on or about May 20, 1976 and the concurrent appointment of appellant as guardian.

On or prior to the contracted date for closing the sale, May 20, 1976, appellant informed the realtor that closing would be delayed because appraisal of the property and prior approval of the sale by the probate court would be required. After several requests during subsequent months that appellant proceed in whatever manner was necessary to complete the sale were unavailing, respondents commenced this action October 21, 1976. Suit was brought against appellant individually as agent for Mary Crumpacker under the power of attorney as described and as noted in the sale contract.

Appellant employed counsel who filed an answer to respondent’s first petition. In addition to a general denial, the answer alleged that the contract was not binding because the power of attorney had been rendered void by reason of Mary Crumpacker’s incompetency on the contract date. No reference was made to the proceedings in the Clay County Probate Court, the adjudication of incompetency or appellant’s appointment as guardian, all of which apparently had occurred some six months earlier.

Knowledge of the probate court action presumably reached respondents at a later date and on May 2, 1977 they filed an amended petition naming appellant as defendant in his representative capacity as guardian and describing by case number the estate in Clay County. On the eve of trial, the original petition naming appellant as agent was dismissed and the action proceeded against appellant as guardian.

On the date of trial, July 8, 1977, confusion attended the status of appellant’s attorneys. Counsel who had been retained originally and who had filed the answer mentioned above was present throughout the trial, but he disclaimed ability to represent appellant as guardian because of undisclosed grounds of potential conflict of interest. The attorney who had represented appellant in other matters and who, inexplicably, filed an answer on behalf of appellant as guardian the day following the trial, declined to attend the trial although personally contacted by the court by telephone on the morning of trial. No record appears of any request for continuance by either attorney.

As the case was called for trial, a colloquy ensued among appellant, his individual attorney, respondents’ attorney and the court. Appellant at that time made no request for a continuance, indicated that he would represent himself and did so, cross-examining witnesses and testifying in his own behalf. Counsel on this appeal first entered the case after judgment had been rendered adverse to appellant.

In charging the trial court with error for conducting the trial of this case under the circumstances described, appellant contends that his right as a civil litigant to representation by counsel was denied and that the consequent failure of due process is violative of the Missouri Constitution, Art. I, § 10. Implicit is the contention that in civil litigation the court is obligated to provide counsel for a party or to suspend proceedings sua sponte until counsel does appear. No authority so holding is cited by appellant.

The case of Magerstadt v. LaForge, 303 S.W.2d 130 (Mo.1957), cited by appellant contrasts sharply on the facts. with the present case. In Magerstadt, plaintiff’s counsel was permitted to withdraw and substitute counsel who attempted to enter their appearance less than sixty days thereafter were denied leave except upon agreement to immediate trial. Refusal of this condition to appearance resulted in a dismissal of plaintiff’s case by the court. The case stands for the proposition that litigants are entitled to representation by counsel of their own choosing and that need to expedite the court’s docket must be applied with care to avoid sacrifice of due process.

Appellant here was represented by counsel, one attorney being present, although not participating, throughout the trial. The other attorney, contacted on the morning of trial by the court, indicated he did not expect to attend. No request for continuance was made to the court by appellant or either of his attorneys although full opportunity to do so was available both before and after appellant at the suggestion of the court consulted with his attorney present as to the situation in the case. Appellant was content to handle the case himself at the time as indicated by the following testimony given by appellant at a hearing on his motion to set aside the decree:

“Q. So you said you were going to try it then?
A. I said I was going to try to do something. I couldn’t see how I could lose.
Q. Did you then agree to have a hearing on this matter?
A. I guess I did.
Q. You did not request a continuance from the Court?
A. No, I didn’t.”

Appellant was entitled to try his own case and, having done so, he may not now complain that he should have received some indulgence particularly available because of his status as a layman. Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388 (Mo.App.1977). The suggestion that some duty devolved upon the court in these circumstances to refuse to hear the case or, having done so, to set aside its decree is not tenable.

Although not directly addressed in appellant’s brief, the transcript suggests and on argument appellant contended that the decree of specific performance was fundamentally unfair in that the proceedings in the trial court were essentially by default and that no opportunity had been given appellant to present the defense which would have resolved the cause in his favor. That defense, alleged generally in appellant’s after trial motion, was that incompetency of Mary Crumpacker had, by operation of law, terminated appellant’s power of attorney prior to the probate court adjudication and before the date of the real estate contract in question. Such, of course, was the defense alleged at the outset in appellant’s answer filed to the original petition, albeit unsupported then as now by any allegations of fact.

Appellant had not, it is true, filed any answer as guardian to respondents’ petition as of the commencement of trial and was therefore in default of the requisite pleading. In the manner of presentation of the case at trial, however, any procedural impediment occasioned by the absence of an answer was ignored. No attempt was made to utilize Rule 74.045 for entry of a judgment on liability issues by default but rather respondents established the factual elements of their case by proof and submitted their witnesses to cross-examination. So too was consideration given to appellant’s evidence supporting his affirmative defense without objection to the absence of a relevant pleading.

Appellant’s characterization in his after trial motion of the judgment in this case as an “Interlocutory Default Judgment” is erroneous. In fact, the motion must necessarily be regarded as a motion for new trial or to amend judgment pursuant to Rule 73.01 and subject to principles governing such motions in court-tried cases of an equitable nature.

The judgment entered by the trial court in a bench trial is presumptively correct and the party who poses the challenge has the burden of demonstrating the judgment to be erroneous. Crossgates Home Ass’n v. Blomquist, 537 S.W.2d 429 (Mo.App.1976). In his motion, appellant alleged that the real estate contract in question was unenforceable because Mary Crumpacker’s “mental condition” had ended authority under the power of attorney at least a year before the contract date and that evidence of this disability had not been presented because of the lack of counsel at trial and appellant’s inability to articulate the defense. The motion urged that the judgment be set aside presumably, although not so stated, to provide appellant a new trial.

Hearing was granted appellant on his motion and he appeared with counsel and testified. No evidence, however, was offered to show the present or past nature of Mary Crumpacker’s mental condition, the objective symptoms which may have been manifest, treatment or examination by physicians or any other facts from which it could have been determined when and to what extent mental disability had incapacitated Mary Crumpacker in conducting her affairs. In short, the dearth of evidence on appellant’s behalf to support his conclusion-ary allegations was the same at the motion hearing as had existed at the time of trial.

In seeking to overturn the result of the prior trial, appellant was required to allege and offer minimal proof of facts, which, if established at a subsequent trial, would demonstrate at least an arguable theory of defense. Williams Energy Co. v. Tracy Truck Leasing, 562 S.W.2d 765 (Mo.App.1978). Appellant here not only failed to allege or prove any details as to the date of onset, nature or extent of Mary Crumpacker’s mental infirmity, but he also erroneously assumed that a condition of incompetency existing in fact prior to adjudication automatically avoided the real estate contract.

While a contract made by one under guardianship by reason of incompetency is void, a contract made prior to adjudication but while the person is under mental disability is only voidable. McKenzie v. Donnell, 151 Mo. 431, 52 S.W. 214 (1899); Evans v. York, 195 S.W.2d 902 (Mo.App.1946). In seeking to avoid a contract on the ground that the contracting party was incompetent, it must be alleged and proved either that the other party was aware of the mental deficiency and took advantage of it or, having not had such knowledge, that restoration of the status quo be offered and be capable of accomplishment. State v. Shain, 349 Mo. 460, 162 S.W.2d 255 (Mo.1942). Avoidance of the contract through intervention of equitable relief for the benefit of one under mental disability prior to adjudication normally requires other inequitable incidents, inadequacy of consideration alone being not necessarily sufficient. Wigginton v. Burns, 216 S.W. 756 (Mo.1919).

Appellant here failed to prove at trial and failed to allege in his after trial motion any facts which would have warranted equitable relief from enforcement of the real estate sale contract. Most importantly, no evidence was offered to prove that Mary Crumpacker was actually of unsound mind at any time prior to her adjudication or that appellant or respondents had knowledge of such disability at the date the power of attorney was utilized to execute the contract of sale. Further, no claim has ever been made, even in generality, that the price and terms of sale of the farm were other than fair nor does the record disclose or suggest any reason why the interests of appellant’s mother would be served by avoiding the contract. In short, appellant failed by his new trial motion to demonstrate that if an opportunity were provided, he could support any reasonably arguable basis for obtaining equitable relief from enforcement of the contract. Under such circumstances, the motion was properly denied.

In his second point, appellant contends that specific performance of this contract may not be ordered because essential, definite terms are lacking. In particular, appellant refers to language of the contract requiring approval by the seller of the deed of trust form. Because a decree would impose on appellant a deed of trust fashioned by the court without appellant’s freedom of choice to reject the form, appellant argues that the decree violates the prohibition against judicially supplied contract deficiencies and cites P.R.T. Investment Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315 (1952) and cases there cited.

The essential terms of a contract for the sale of real estate entitling the purchaser to specific enforcement are: the parties, the subject matter, the promises upon both sides, the price and the consideration. Wilkinson v. Vaughn, 419 S.W.2d 1 (Mo.1967). A contract containing the essential elements is not incomplete because failing to express matters of performance usually found in such instruments and functioning to attain the objective of the contract. Ray v. Wooster, 270 S.W.2d 743 (Mo.1954). A contract condition which qualifies a duty of performance by a party does not make the existence or validity of the contract hinge on the condition. 17A C.J.S. Contracts § 338.

In the present case, approval by the seller of the form of the deed of trust was not required before a valid contract of sale resulted, it was merely an act to be performed in fulfillment of the ultimate contract objective, sale of the property and payment of the purchase price. This situation is unlike that in P.R.T. Investment Corp. v. Ranft, supra, in which a contract for sale of improvements included a condition that the contract was subject to acceptance by the purchaser of the seller’s lease on the ground. The latter amounts to a condition which must be performed before the parties have completed agreement and before liability for performance attaches. Approval of a deed of trust form is on entirely different ground and is a routine element commonly attaching to the closing of any sale of real estate in which a loan balance is secured by a purchase money interest in the land. Requirement that the subject sale be completed by giving a deed of trust engrafts no new terms on the contract and orders nothing not routinely attendant upon normal closing of such transactions.

Finally, appellant attacks the jurisdiction of the court to order performance of the sale agreement contending that exclusive jurisdiction over property of the incompetent ward was in the Probate Court of Clay County. It is uncertain from appellant’s point of error and brief as to whether he contends that the circuit court lacked subject matter jurisdiction over the property of the ward or personal jurisdiction over the guardian, but neither assertion being valid, it is unnecessary further to refine the issue.

From the fact of adjudication alone, the otherwise valid contract of sale is not impugned and the liability of the contracting party is not affected. This follows for the reason that adjudication of incompetency is only prospective in application and is inadmissible as evidence to show prior mental disability. Rhoades v. Fuller, 139 Mo. 179, 40 S.W. 760 (1897). In fact, there is a presumption of sanity preceding adjudication with the burden of proof being on the party who seeks to show want of mental capacity to contract. Boydston v. Bank of Camden Point, 141 S.W.2d 86 (Mo.App.1940). At the outset, therefore, respondent’s petition and proof of the real estate sale contract executed by appellant under the power of attorney established a prima facie case entitling respondents to judgment. Allegation that subsequent adjudication had placed the ward’s property under jurisdiction of the probate court is unavailing to oust the circuit court from jurisdiction over the guardian as a specific duty of a guardian is to defend actions against his ward. Section 475.130, RSMo 1978.

No provision of the probate code in effect prior to January 2, 1979 confers jurisdiction on the probate court to determine suits on petition for specific performance to enforce a contract made by the ward while sane. In contrast, Section 473.313, RSMo Supp. 1955 provides for concurrent jurisdiction between the probate court and circuit court if the action be one to enforce a similar contract made by one now deceased. As the probate court was, at the time in question, a court of limited jurisdiction, the absence of statutory authority militates in favor of concluding that the probate court lacked jurisdiction to entertain this cause. At most it is arguable that Section 475.020, RSMo 1978 could operate to transfer to guardianship estates those provisions above cited applicable to decedents’ estates creating concurrent jurisdiction in probate and circuit courts in cases for specific performance of contracts.

Appellant notes that Section 475.-135, RSMo Supp.1959 restricts contracts binding on the estate of the incompetent to those entered into with the approval of the court. From this he apparently suggests that pre-emptive jurisdiction over any existing contracts made by an incompetent is the immediate consequence of adjudication in the probate court. Consistent with authorities previously cited, such is not the effect of the quoted section or of Section 475.345, RSMo Supp.1955, neither of which is applicable to contracts entered into by an incompetent before adjudication. Such contracts are not void but voidable on the grounds and in the manner earlier discussed.

The judgment of the trial court is affirmed.

All concur.

      . The transcript includes no return of service of the amended petition on appellant as guardian. Actual receipt of the pleading is confirmed by the answer filed on behalf of appellant individually July 6, 1977. To the extent that any defect in process may have existed in the recasting of appellant’s status as defendant under the amended petition, such was waived by appellant’s subsequent general appearance and participation in the trial without objection on this ground. Germanese v. Champlin, 540 S.W.2d 109 (Mo.App.1976).


source: Caselaw Access Project

author: WASSERSTROM, Chief Judge.

license: Public Domain

text:
    Arzetta HATHMAN, Executrix of the Estate of J. E. Hathman, and Arzetta Hathman, Individually, Appellants, v. T. P. WATERS, Jr. and Carolyn Waters, Respondents.
    No. KCD 29890.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Howard F. Sachs, Jerome T. Wolf, Kansas City, for appellants; Spencer, Fane, Britt & Browne, Kansas City, of counsel.
    John David Collins, Collins & Grimm, Macon, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   WASSERSTROM, Chief Judge.

J. E. Hathman and his wife Arzetta filed this suit to set aside a contract under which defendant T. P. Waters, Jr. is entitled to acquire certain capital stock of J. E. Hath-man, Incorporated (hereinafter “the Corporation”). After completion of the trial and pending decision by the trial court, Hath-man died and Arzetta, as executrix of his estate, was substituted in his stead. Thereafter the trial court entered judgment for defendants. Arzetta now appeals in her own right and as executrix.

Shortly after World War I, Hathman started in the general contracting business as a sole proprietor under the name J. E. Hathman Contracting. In December, 1947, he married Arzetta, who at the time of marriage was possessed of a residence to which she held title. In March, 1948, she sold that residence for about $13,000, $12,-298.60 of which she deposited in a joint account standing in the names of the two spouses. Shortly thereafter, Hathman asked her if she would care if he drew $10,000 of that money to use in his business, to which she responded, “I do not object.” The evidence shows that a check for $10,000 was drawn on April 1,1948, by Hathman to J. E. Hathman Construction Co. from an account entitled “J. E. Hathman — Contractor Personal Account.” Hathman and Ar-zetta both testified that this $10,000 which so went into the contracting business came out of the proceeds of the house sale by Arzetta, and Hathman gave Arzetta the $10,000 cancelled check for her to keep as proof that she had given him the money to use.

In June, 1948, Hathman, together with John W. Adams, D. W. Price, Ben W. Cassity and Lee Phillips, Jr., organized a corporation under the name J. E. Hathman Construction Company, with a capitalization of $10,000, of which Hathman subscribed to 48½%. That corporation continued until the end of 1949, at which time the corporation was dissolved and the net assets distributed.

Thereupon, Hathman resumed operation as a sole proprietorship. During this period of sole proprietorship he withdrew money as he desired for his own personal and family purposes as he saw fit. This operation continued until September 15, 1952, when the present Corporation was organized. The new Corporation was capitalized at $27,100, and Hathman received 51% of the stock. The other stockholders were Cassity and Phillips, who owned respectively 9½% and 39½%. The Corporation continued with this management until the fall of 1953, when Phillips left the business. At that time Hathman and Cassity approached Waters, who was a graduate engineer working for another concern in St. Louis. Waters agreed to enter the employment of the Corporation under an arrangement which included his buying 35% of the Corporation stock. At that time Hathman told Waters and Cassity, “Another five or six years I’m going to turn it over to you boys. I want to give you a good start.”

In 1954 and 1955, the three stockholders entered into agreements under which each agreed to sell his respective stock upon death to the Corporation. The agreements by Waters and Cassity were funded by life insurance policies on the life of each of those men for $12,500, and the agreement by Hathman was funded by a life insurance policy in the amount of $25,000.

As the years went along, the Corporation prospered, Hathman did nothing about retiring, and the other two officers became concerned about being able financially to purchase Hathman’s stock in the event of his death. Therefore, in 1963, Waters talked to Hathman about permitting him and Cassity to begin purchasing some of his stock immediately. Hathman rejected this suggestion for the reason that he wanted to retain control of the Corporation during his lifetime.

Waters then went to the Corporation attorney, Ed Brown, with the request that Brown prepare an agreement under which Waters and Cassity could acquire some of Hathman’s stock and concurrently deliver to Hathman their proxies to vote the stock so purchased. After Brown prepared such an agreement, Waters presented it to Hath-man, who declined to consider that approach, but stated that “I’ll work out something you and Ben can live with.”

Following that conversation, Hathman went to Attorney Brown in the early part of 1964, and asked him to draw up papers under which he could keep 51% of the stock during his lifetime, Waters and Cassity would get the Corporation upon his death (except for 15% of the stock which was to go to a nephew, Dean Hathman), and Ar-zetta would receive $1,000 a month out of the Corporation profits until her death. Brown turned over the assignment of drafting the requested documents to his associate, Willbrand, who reported legal objections to following the precise mechanics outlined by Hathman. Willbrand suggested instead that the Corporation agreed to purchase Hathman’s stock at par value plus a promise to pay Arzetta the annuity of $1,000 a month out of profits, that the Corporation agreed to resell that stock to Waters, Cassity and Dean Hathman in the agreed proportions at par value, and that Hathman by will bequeath money to Waters, Cassity and Dean Hathman to cover their respective stock purchase obligations. Brown discussed this alternative plan with Hathman, who agreed thereto.

Willbrand then proceeded to draft the agreement along these lines and Brown presented the draft to Waters for his review sometime in the summer of 1964. Waters discussed the proposed agreement with Cassity, after which he suggested two modifications: (1) that Hathman be paid $1,000 a month in the event of his retirement; and (2) that there be a restriction on dividends, so that only salaries and bonuses sufficient to pay income taxes could be drawn out of the Corporation. Hathman indicated acceptance of these modifications, the agreement was redrafted, and the parties all met, together with Brown and the Corporation accountant, for a signing of the agreement.

Brown explained the terms of the agreement and the accountant discussed the tax ramifications. During the course of the meeting, Waters asked Hathman to tell Ar-zetta about the agreement, but Hathman replied “She’s well provided for. The stock is mine and I don’t want her to know about it.” This statement by Hathman about his being sole owner of the stock was in accordance with information which Waters had also received from the attorney when he had inquired about the necessity of having Arzetta join in the agreement. After the explanations and the conversation mentioned, the agreement was signed as prepared.

This arrangement between the stockholders remained unchanged until 1968, when Cassity sold out and left the Corporation. Waters then brought up the subject of changing the 1964 agreement because of Cassity’s no longer being in the Corporation, and Waters expressed the thought that he should be entitled to the stock which was to have gone to Cassity. Hath-man agreed. Waters then approached the attorneys to have a new agreement prepared. The attorneys did prepare a new stockholders’ agreement and a new will, and they met with Hathman to go over these documents with him. A new stock agreement was signed at the Corporation office in January, 1969, and the new will was executed by Hathman on July 31, 1969. The 1969 agreement was basically the same as the 1964 agreement, except that there was no provision for the Corporation to pay par value of the stock to the Hathman estate and there was no provision for resale of stock by the Corporation.

Subsequent to the execution of the 1969 agreement and will, Hathman executed still another change to his will by a 1971 codicil. At that time, he again asked Brown to keep the executed copy of the will for the reason that he did not want Arzetta to know about the 1964 or 1969 agreements. Brown urged Hathman to make a disclosure about those arrangements to Arzetta, but Hathman replied that “it was his stock, his company; he’d do with it what he pleased.”

In 1973 Arzetta did learn about the 1969 agreement and made sharp protest. Hath-man’s initial reaction was to tell Arzetta that if she was displeased that she should get her own lawyer and draw a new agreement. Eventually, however, Hathman came around to Arzetta’s position and joined with her in the present suit to cancel the 1969 agreement.

On this appeal, Arzetta argues that the trial court erred in sustaining the contract because: (1) Arzetta’s joinder in the contract was necessary to its validity, in that she had an ownership interest in the stock of the Corporation owned by Hathman by way of a resulting trust through the operation of statutory Section 451.250 (all statutory references are to RSMo 1978, unless otherwise stated); (2) such joinder was necessary because Arzetta had an ownership interest by way of resulting trust arising out of her joint ownership of the bank account out of which $10,000 was paid into the construction business; (3) the contract was void for lack of consideration and mutuality; (4) the contract was void because induced by fraudulent means; (5) the contract was void because it was purportedly executed by the Corporation at a time when its charter had been forfeited; and (6) the contract was voidable at the instance of Arzetta because it constituted a fraud on her marital rights.

I

THE CLAIMED RESULTING TRUST

The above points 1 and 2 can most profitably be discussed together inasmuch as both of them aim at establishing a resulting trust in favor of Arzetta to Hathman’s stock, with the consequence of invalidity of the contract as to her because she never agreed to it. She claims a right not simply to a return of her original $10,000, but in addition she insists that she has a right to all of the augmentation which has accrued over all the intervening years by reason of the use of that $10,000. Waters, on the other hand, contends Arzetta made a gift of the $10,000 to her husband, Arzetta responds that there cannot be a gift because of the provisions of Section 451.250, and further because of an alleged legal presumption that the joint ownership character of the joint bank account followed the investment of that money by Hathman into his construction business.

Both of these alternative claims by Arzetta fail because the facts show that the transfer of the $10,000 in 1948 constituted a gift by her to her husband, and neither Section 451.250 nor the joint ownership of the joint bank account has the effect of transforming that gift into a resulting trust. Moreover, Arzetta has failed to carry her burden of proving a resulting trust in that she has failed to show the exact proportion which her $10,000 contribution had to the total value of Hathman’s stock in the Corporation.

A. The Effect of Section 451.250. Section 451.250, first enacted in 1875, reads in pertinent part as follows:

“1. All real estate and any personal property . . . belonging to any woman at her marriage . . . shall be and remain her separate property .
2. This section shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife; provided, that said personal property shall not be deemed to have been reduced to possession by the husband by his use . . . but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit . . .” (emphasis added).

Arzetta argues that she never assented in writing to a gift of $10,000 to her husband, and that therefore when Hathman took that $10,000, which was the proceeds of a sale of the residence owned by her prior to the marriage, he took those funds as a trustee and that she is entitled to follow that trust fund into the construction company in which the $10,000 was invested.

That argument fails for two reasons. In the first place, Section 451.250 applies only to a situation in which the husband by his act takes the wife’s property and reduces it to his possession; and it has no application where the transfer is made by act of the wife herself. Ferguson v. Stokes, 269 S.W.2d 655 (Mo.1954); Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079 (banc 1932). In this case, Arzetta testified that she made the deposit of the proceeds of the sale of the house by her own act into a joint bank account. Therefore the gift transfer in question does not fall within Section 451.250.

Secondly, the requirement of a written consent contained in Section 451.250 has been eliminated by Section 451.290, the forerunner of which was first enacted in 1889. This later statute provides that a married woman shall be deemed a femme sole. Controlling decisions of the Missouri Supreme Court en banc declare that this later section gives a married woman the right to make a parol gift of personal property to her husband despite the provisions of Section 451.250. In re McMenamy’s Guardianship, 307 Mo. 98, 270 S.W. 662 (banc 1925); Murphy v. Wolfe, supra.

B. The Effect of Joint Ownership of the Bank Account. Arzetta contends that her $12,298.60 (proceeds of the house sale) were deposited in a joint bank account with rights of survivorship and that this joint ownership character follows the withdrawal of $10,000 of that fund by Hathman and the investment thereof in the construction business. Arzetta argues that this result must follow from the legal presumption that withdrawals by a husband from an account held jointly by the spouses presumptively becomes a resulting trust in favor of the wife. However, the presumption so relied on has been characterized as weak at best, and whether the withdrawal results in a gift or a trust depends upon intention as inferred from the particular facts of each case. Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28 (1930); Harrellson v. Barks, 326 S.W.2d 351 (Mo.App.1959).

Here the presumption relied upon by Arzetta is clearly overcome by the many years of acquiescence by her in the assertion of ownership by her husband. She knew at the time her husband withdrew the $10,000 that he intended to use it in a business standing in his own name, and she expressly assented to that use. During the twenty-five years thereafter she made no claim of ownership in the construction business, and this in the face of her testimony that she knew that her husband had an intention and some plan of giving stock to the young men involved in the business, particularly Waters. At the very least, there has been no proof by Arzetta that she did not know and realize that her husband was asserting and exercising full rights of sole ownership in the construction business into which the $10,000 is claimed to have been invested. Cooper v. Freer, 385 S.W.2d 340 (Mo.App.1964). Looking at the whole record realistically, the inescapable conclusion is that she did know and acquiesce.

Under circumstances in which the wife has full knowledge of and acquiesces in the husband’s appropriation of funds from a joint account, that withdrawal must be treated as a gift with full title vested in the husband. Ambruster v. Ambruster, supra; Harrellson v. Barks, supra; Cooper v. Freer, supra. That is particularly true where, as here, the withdrawals were to further the husband’s business, the proceeds of which were intended to be and actually did inure to the great benefit of both parties. This case falls squarely within the following rule stated in Harrellson v. Barks, supra at 1. c. 361:

“It would seem that the practical, and therefore better, rule to follow in regard to withdrawals from entirety accounts would be this: Where the withdrawals are partial and not obviously to obtain unfair ownership or advantage, and where the purpose of the withdrawal can reasonably be considered as one which could suit the wishes, purposes, and intention or consent of both the owners of the entirety account, and there is no apparent objection after the withdrawal is known, then the presumption should be that the withdrawal was by consent and agreement of the joint owners.” (emphasis in the original).

C. Failure to Prove an Exact Percentage of the Wife’s Contribution to the Total Investment. A resulting trust arises where one party pays all or a part of the consideration for the acquisition of property which is taken in the name of a second party, if the payor intended and expected to obtain an ownership interest in that property. Restatement Trusts 2d, Section 440 et seq. However, the burden of establishing all the requirements of a resulting trust rests upon the payor and his showing must be by such cogent, clear, unequivocal and positive evidence as to banish doubt from the mind of the chancellor. March v. Gerstenschlager, 436 S.W.2d 6,1. c. 8 (Mo.1969); Clubine v. Frazer, 346 Mo. 1, 139 S.W.2d 529 (1940); Shelby v. Shelby, 357 Mo. 557, 209 S.W.2d 896 (1948); Ellis v. Williams, 312 S.W.2d 97 (Mo.1958). Where the consideration furnished by the payor is less than the total consideration for the property acquired, then part of that burden is to show the exact proportion which his contribution bore to the total of the purchase price. Scott on Trusts Sec. 454 at p. 3374 (3d ed. 1967); Bogert, Trusts and Trustees Sec. 457 at p. 685 (2d rev. ed. 1977); Ellis v. Williams, supra; Shelby v. Shelby, supra; Clubine v. Frazer, supra; Hinkle v. Hinkle, 236 S.W. 30 (Mo.1921).

The burden last mentioned was not carried by Arzetta in this case. Although she did show the amount which she received for the sale of her house and which was deposited by her into the joint bank account, the record is silent as to how much money was already in that joint account prior to her deposit. Furthermore, the check for $10,000 which went into the construction business came not from the joint account “Mr. and Mrs. J. E. Hathman,” but rather from an account entitled “J. E. Hathman — Contractor Personal Account,” and there is no evidence as to whether or not the latter account was joint between the spouses or how much money was on deposit in that account on April 1,1948, the date on which the $10,000 check was drawn. Still further, there is no evidence showing the net worth of the contracting business on April 1, 1948, so that there could be a calculation of what percentage the $10,000 contribution was to the total value of the business on that date.

Still further, the record shows that when the construction business was incorporated for the first time in 1948, the total capitalization was only $10,000, of which Hathman subscribed for only $4,850. There is no inkling in the record as to whether the sole proprietorship had dwindled to this amount, or if not, what happened to the excess of that net worth which was not invested in the corporation. Still further, there is no evidence as to what the net worth of the first corporation was when it was dissolved in December of 1949, nor the amount of the distribution received by Hathman from that corporation, nor how much of that distribution went into his successor sole proprietorship. Nor is there evidence as to how much Hathman withdrew from this sole proprietorship for outside investments during the period January 1950 until September 1952, when the present Corporation was organized (the record does show that during that interim period Hathman did make at least one substantial withdrawal of approximately $27,000 to buy a valuable horse).

Thus it is totally impossible to arrive at any fixed percentage which Arzetta’s $10,-000 had to the value of the construction company at any particular time. This lack of proof becomes particularly significant when it is pointed out that by 1969 the Hathmans had accumulated extensive investments, outside the construction business, of which their real estate assets alone exceeded one million dollars. It is therefore impossible to say without the wildest kind of speculation whether any and if so how much of Arzetta’s contribution and the increment thereon was represented by the value of Hathman’s shares in the corporation in either 1952 or 1969.

The trial court found that there was no evidence that Arzetta’s $10,000 was used for purposes of the Corporation. That finding is closely akin to the conclusion reached by this opinion that Arzetta has failed to show an exact percentage which her contribution bore to the total value of the asset into which it went. In any event, the result reached by the trial court must be affirmed if it is correct upon any theory. See the many cases announcing this rule in Missouri Digest, Appeal and Error, «=>854(2).

II.

ALLEGED LACK OF CONSIDERATION

Arzetta’s third point argues that the 1969 agreement lacked consideration and mutuality of obligation in that payment for the stock would be made in the form of an annuity to Arzetta, payable only out of current profits, and that the showing of profits would depend upon the pleasure and will of Waters, who after Hathman’s death would be in control of the Corporation. It is true that the contract provided that the $1,000 a month would be paid to Arzetta “out of current profit and not out of the capital of the Corporation.” However the record shows that the Corporation had been a remarkably successful enterprise for many years and had earned net profits in excess of $12,000 each year for the seven years preceding the 1969 contract, ranging from a low of $59,386.33 to a high of $154,-580.84 per year. Accordingly, there was little probability that the profits would be inadequate to pay the promised annuity.

As to the argument that Waters could control profits by increasing salaries and dividends, it should first be noted that the payment of a dividend would not reduce net profits and therefore could not provide any basis for depriving Arzetta of her annuity. With respect to possible increases in salaries, it should be noted that the 1969 contract contained a provision limiting the salary of each of Hathman and Waters and further provided that “[m]oneys other than salaries and bonuses referred to herein shall be retained by the Corporation and shall be the Corporation’s money.” Even if it could be thought that this contractual provision would no longer be binding after Hath-man’s death, still Arzetta would have the right to resort to court action in the event of any fraudulent action on the part of Waters to avoid payment of the promised annuity.

III.

ALLEGED FRAUD AND BREACH OF CONFIDENTIAL RELATIONSHIP

Under this point Arzetta argues that Hathman was fraudulently induced by Waters and Brown to part with valuable stock for an “illusory” consideration. In support of this contention, Arzetta argues that Hathman at the time of the 1969 agreement was 81 years of age, he had had two heart attacks and suffered from cataracts. She further argues that both Waters and Brown (particularly Brown) were in a confidential relationship to Hathman, and that the nature of the agreement was misrepresented by them and was not understood by Hathman when he executed the agreement.

A searching review of this record discloses no misrepresentations made by anyone to Hathman. Rather the evidence shows that the arrangements for disposition of his stock at his death were basically devised by Hathman himself and were reflected in the 1964 agreement. The 1969 agreement followed substantially the same format, except for those changes appropriately brought about by reason of Cassity’s ceasing to be a participant in the Corporation. The evidence fully supports the findings of the trial court “that from the witnesses presented it is clear that plaintiff J. E. Hathman, regardless of prior health problems, was mentally alert in the years 1968-1969” and that “it is clear that the agreement of January, 1969, provided exactly what J. E. Hathman wanted; that is that T. P. Waters would ultimately own the company, but that his wife Arzetta Hathman would receive an income for life from the profits. The Court must reject the contention that attorney Brown did anything improper or that he in any way misled plaintiff J. E. Hathman.” The findings by the trial court that there was no fraud or lack of understanding by Hathman is supported by substantial evidence and is not against the weight of the evidence and therefore must be accepted under the doctrine of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

As to the argument concerning “illusory” consideration, there can be no question but that $1,000 a month is more than a merely nominal amount. Whether or not that amount of annuity to a 74 year old woman constitutes a good bargain in exchange for Hathman’s shares (which had a book value of approximately $350,000 in 1969) need not be determined. The law is well settled that a consideration, though small, is adequate to support a contract, and that inadequacy of consideration, in the absence of fraud, does not constitute any defense. This rests upon the policy of the law to let the parties weigh the benefits pro and con and to leave them free to make whatever contract between themselves that they please. Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649 (1941); Cox v. A. P. Green Fire Brick Co., 230 Mo.App. 774, 75 S.W.2d 621 (1934); Glover v. Shirley, 169 Mo.App. 637, 155 S.W. 878 (1913); Forbs v. St. Louis, I. M. & S. Ry. Co., 107 Mo.App. 661, 82 S.W. 562 (1904).

Furthermore, if the adequacy of consideration were properly for determination, there would have to be taken into account not only the annuity to Arzetta, but also the retirement benefit to Hathman, and even more importantly the continuation by Waters of his services to the Corporation. It had long been in contemplation that Waters was to become the majority owner of the Corporation at Hathman’s death, and just before the 1964 arrangement was consummated Waters had been discussing with Cassity the advisability of leaving the Corporation rather than to continue without some firm contractual arrangement with Hathman in this respect. There can be no doubt that the securing of Waters’ continued service to the Corporation was the prime motivating reason for the 1964 contract, which was simply carried forward in slightly modified form by the 1969 contract. In view of the great financial success of the Corporation under Waters’ leadership, that continuation of his services was valuable consideration indeed.

IV.

FORFEITURE OF THE CORPORATE CHARTER

On January 1, 1969, the Missouri Secretary of State declared the Corporation’s charter forfeited for non-registration. Thereafter, on March 5,1969, the forfeiture was rescinded by the Secretary of State and the charter reinstated. However, it was during the interval between those two events that the contract now under attack was executed on January 27,1969. Arzetta argues that on the date of that execution, the Corporation had no legal existence and that therefore the contract was and continues to be void.

The law has long been to the contrary. Barron G. Collier, Inc. v. American Cafeteria, 215 Mo.App. 182, 256 S.W. 118 (1923). The rule stated in Collier was approved in Leibson v. Henry, 356 Mo. 953, 204 S.W.2d 310 (banc 1947) and was recognized in Clark Estate Co. v. Gentry, 362 Mo. 80, 240 S.W.2d 124 (1952).

Arzetta argues that a 1975 amendment to Section 351.540 makes statutory provision for the first time that all acts of a corporation between the date of a forfeiture and the date of the rescission of that forfeiture shall be confirmed and held to be the acts of the original corporation; and she contends that the result must be held to be otherwise with respect to the 1969 contract here in question which, of course, was executed prior to the 1975 statutory amendment. However, the effect of the 1975 amendment as it affects the validity of this contract was merely to codify the already existing case law in this state, as declared in Collier, supra. The 1975 amendment effected no change in that respect.

V.

THE ALLEGED FRAUD ON MARITAL RIGHTS

Arzetta contends finally that the 1969 agreement constituted a fraud on her rights under Section 474.150. Her rights under that statutory section are simply those accruing to her under established common law rules. Nelson v. Nelson, 512 S.W.2d 455 (Mo.App.1974).

The key question as to whether a transfer is in fraud of marital rights turns upon the intention of the husband-transfer- or. Nelson v. Nelson, supra; In the Matter of the Estate of August LeGarce, 532 S.W.2d 511 (Mo.App.1976); Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611 (1939). In an effort to show an intention to defraud, Arzetta argues strenuously again that the annuity promised to Arzetta was “shockingly inadequate” as compared to the value of the stock. As already discussed earlier in this opinion, there was no shocking inadequacy, nor indeed any inadequacy at all. The trial court properly declined to find any fraudulent intent on the part of Hathman. Murphy v. Carron, supra.

Affirmed.

All concur.

      . As pointed out by the trial court in its Memo- . randum Opinion, Arzetta did not make such ownership claim until added by Second Amended Petition which was not presented until just days before trial.

      . Hathman testified that all of the assets of the first corporation “went back into the next corporation” when the present Corporation was organized. That was patently impossible because: 1) some of the assets of the first corporation were distributed to other stockholders; and 2) Hathman’s share of those assets went into the intervening sole proprietorship.


author: TURNAGE, Judge.

text:
    Jana A. FREEMAN, Appellant, v. J. Lauren FREEMAN, Respondent.
    No. KCD 29990.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.
    Larry M. Brummet, Lucia K. Leggette, Kansas City, for appellant.
    Arthur H. Stoup, K. Suzanne Bocell, Stoup & Bohm, Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Jana Freeman filed an action for dissolution of her marriage with Lauren Freeman. The court ordered the marriage dissolved, divided the marital property, denied Jana maintenance and ordered Lauren to pay Jana’s attorney fees.

On this appeal Jana contends the court erred in its division of marital property and in denying her maintenance. Jana and Lauren were married in October, 1970, and separated in February, 1977. There were no children born of this marriage. Lauren is the sole stockholder of Freeman Mortuary, Inc., and Freeman Pre-Need Plan, Inc. In addition, Lauren owns the real estate upon which Freeman Mortuary is located and leases the same to the corporation. The court found the real estate and stock in both corporations were the separate property of Lauren since they were acquired by him prior to the marriage. The only evidence concerning the value of the real estate was the valuation placed on it in 1967 in the probate proceedings of Lauren’s father. At that time it was valued at $184,-420.

Jana did testify that Lauren had told her of a recent offer to sell the real estate for $450,000. However, Lauren denied this and the court, in its findings of fact, found this evidence was not a sufficient basis for valuation. Jana introduced other evidence to show development in the area of the mortuary, both by new business and new construction. Lauren was asked the current value of the real estate but denied any knowledge of its present value and further denied any knowledge of increased value since 1967.

One of the factors to be considered in the division of marital property is the value of the property set apart to each spouse. Section 452.330.1(2), RSMo 1978. This factor was considered in Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976) and upon a finding in that case of an increase in the value of the husband’s separate property the court increased the award of maintenance.

It is impossible to review the division of marital property made in this case without evidence of the current value of the real estate constituting separate property belonging to Lauren. The trial court found the only marital property to be the residence of the parties with a net equity of $47,235. The court awarded Jana $16,000 as her interest in the marital property. The value of Lauren’s separate real estate on which the mortuary is located must be considered in reviewing the division of marital property and without a current valuation of that property such a review is not possible.

Jana also complains of the failure of the court to award her maintenance. One of the factors to be considered in an award of maintenance is the amount of marital property apportioned to the spouse. Section 452.335, RSMo 1978. Without knowing the amount of marital property which the trial court may award to Jana on a retrial it is impossible to review the refusal to grant her maintenance.

The judgment dividing the marital property and refusing to grant Jana maintenance is reversed and remanded for a new trial on those issues. V.M. v. L.M., 526 S.W.2d 947 (Mo.App.1975). See also Forsythe v. Forsythe, 558 S.W.2d 675 (Mo.App.1977) and Horridge v. Horridge, 542 S.W.2d 324 (Mo.App.1976).

The judgment in all other respects is affirmed.

All concur.


author: MANFORD, Judge.

text:
    Patricia Ann MEAD, Appellant, v. CORBIN EQUIPMENT, INC., Dempster Brothers, Inc., Carrier Corporation, d/b/a Carrier Air Conditioning Company, Respondents, and Carnation Company, Pet Milk Division, Respondent.
    No. 30100.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.
    Richard A. Erickson, William B. Morgan and David H. Dunlap, Kansas City, for appellant.
    William R. Fish, Kansas City, for Corbin Equipment, Inc. Reed 0. Gentry, Kansas City, for Demp-ster Bros., Inc., Carrier Corp. d/b/a Carrier Air Conditioning Co.
    Neal E. Millert and Larry J. Tyrl, Kansas City, for Carnation Company.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This is an action for wrongful death brought by a surviving spouse. Upon trial, the court directed a verdict for respondents on Count II of the petition, and the jury entered verdict for respondents on Count I of the petition. Appeal is upon both verdict entries. Affirmed.

A brief recital of the facts is necessary to effect disposition of this matter.

The deceased, Donald Mead, was an employee of Continental Steel and Conveyor Co., an independent contracting firm which had been retained by respondent Carnation Company to do certain work upon a trash compacting machine.

At this juncture, the parties should be identified. The Carnation Company was the owner of the trash compactor and it was at or upon its plant site that Donald Mead met his demise.

Dempster Brothers, Inc. was the manufacturer of the trash compactor and at the time of decedent’s death, it was a wholly owned subsidiary of Carrier Corporation. It no longer is an individual corporation because on October 31, 1973, it became known as Dempster Brothers, Inc., Division of Carrier Corporation. This identifies Carrier Corporation d/b/a Carrier Air Conditioning Company, also joined herein. For purposes herein, these two respondents are identified simply as Carrier.

Corbin Equipment, Inc. is the distributor for Carrier. (Corbin Equipment, Inc. is hereinafter referred to as Corbin.) The trash compactor was sold by Corbin for Carrier to Wheeling and Company. Wheeling and Company was the installing and servicing company for the compactor, and although originally joined as a defendant, appellant dismissed as against Wheeling.

Appellant’s amended petition was m two counts. Count I was upon the theory of strict liability. Count II was upon the theory of negligence. Both counts were against all defendants.

Prior to trial, respondent Carnation Company filed a motion to strike Count I of the petition as to Carnation Company pursuant to Rule 55.27(e). This motion was sustained by the trial court. At commencement of trial, Count II stood as against all respondents, and Count I stood as against all respondents, except Carnation Company.

The decedent, Donald Mead, was crushed to death by a trash compactor. This trash compactor was of a commercial type identified as SP42-50. Donald Mead was the job site foreman for Continental Steel and Conveyer Company which had contracted with Carnation Company on a variety of jobs. These jobs included installing a steel platform frame so at a later time, forklift trucks could exit the Carnation Company plant onto the platform and move onto a dockboard covering the compactor.

The compactor is a relatively large piece of machinery. It extends some 15 feet north of the Carnation Company plant, is 98 inches wide and is some 62 inches above ground. The compactor internally contains a “ramhead”, which by hydraulic power, slides along channels on each internal side of the compactor. The stroke of the ram-head or packerhead covers some 78-80 inches in a north-south direction. The trash is moved into the receptacle part of the unit with 50,800 pounds of pressure or force. A complete cycle of the ramhead or packer-head is approximately 100 seconds. The forward stroke requires some 60 seconds with the backward or return stroke encompassing some 40 seconds.

The work adjacent to and upon the compactor by Mead and his two co-workers had commenced and continued off and on for some three to four months prior to the fatality. The co-workers were identified as Maurice Suesens and Curtis Earlywine, both of whom were upon the scene at the time of the fatality.

On the date in question, employee Sues-ens was performing a welding chore. He was on a metal platform above and to the east of the compactor. His position placed him next to the dockboard of the compactor. This dockboard is a flat-surfaced area of heavy meshed wire, sturdy enough to walk upon. By virtue of its “mesh” character, one can see through it into the top of the compactor in the precise area where the ramhead moves back and forth through its compacting cycle.

At this moment, the decedent and coworker Earlywine were working alongside the compactor. Both were on the ground along the northeast side, trying to fit a piece of checkerplate into position for welding.

It should be pointed out that this compactor, when sold and delivered, did not include a dockboard as referred to above, or any supporting framework therefor. It was such items, along with other additions and modifications to the compactor, that the decedent and his co-workers were engaged in or working on at the time of this fatality.

Prior to the particular day and upon the day of this fatal accident, the compactor was in continued use and the decedent and his co-workers performed their tasks with the compactor running. As Suesens was performing his particular welding task, sparks from the welding operation ignited trash and debris which had collected in the area on top of the compactor beneath the dockboard. Suesens observed a fire and advised the decedent.

When the decedent realized there was a fire, he and Earlywine removed a portion of the checkerplate, permitting them to move toward the south end of the compactor where the fire was located. When Suesens first noticed the fire, the ramhead was fully retracted or toward the south end of its stroke. When decedent and Earlywine moved toward the fire, the ramhead was moving north. Decedent and Earlywine crawled back (south) toward the fire to a point about four feet from the rear or south end of the compactor. This location included a vertical support pipe for the dockboard which had been installed. At this moment, the ramhead was continuing in a north direction, and it passed within inches of decedent’s nose. As it passed, decedent and Earlywine brushed off burning debris from the ramhead. Earlywine departed that precise location to get” a fire extinguisher and decedent remained. As Earlywine departed, decedent inserted the upper portion of his body into the area of the moving ram-head. At this point in time, the ramhead was still moving with or in a compacting stroke. Decedent was attempting to move the fire and debris out of the machine. Earlywine, in going for a fire extinguisher, reached the same general area of his coworker Suesens. At this point, the ram-head was in a retracting stroke, moving south. Both Suesens and Earlywine hollered to decedent to clear himself. Suesens testified he yelled for decedent to get out of there. Suesens further testified decedent made no response to his warning.

Earlywine testified he yelled at decedent, “Get out of there, Don. I’m getting a fire extinguisher,” or “Watch that God damn thing, Don, watch that ram.” Earlywine further testified, “I seen him (meaning decedent) turn his head like this and look back.” The looking back, as the evidence establishes, was toward the north or toward the ram.

The decedent did not remove himself, and the ram continued its retracting stroke. The time lapse from the warnings of Sues-ens and Earlywine until decedent was crushed was 10-12 seconds. As decedent was removed, it was discovered the ram-head had caught the small of his back and crushed that portion of his body against the third vertical (third from the south end of the compactor) support pipe and the ram-head, and his skull had been crushed between the ramhead and the second vertical support pipe.

Upon trial, at the close of appellant’s evidence, the trial court sustained respondents’ motions for directed verdict on Count II of the petition, which rested upon the theory of negligence. Count I, the strict liability theory, was submitted to the jury without any evidence from respondents Corbin, Dempster Brothers, Inc. and Carrier.

The jury returned its verdict in favor of respondents. Motion for new trial was filed and overruled.

Appellant raises three points, alleging error by the trial court in the giving of a converse instruction (no. 7 on behalf of respondent Dempster) on the premise that said instruction required a finding that decedent was “using” the compactor and was contrary to appellant’s theory on strict liability that decedent was a bystander and not a user; and that instruction no. 6 hypothesized that respondent Carnation Company was using the compactor in a manner reasonably anticipated, depriving appellant of her theory of the case. In addition, appellant contends the same error in regard to the converse instruction no. 4, on behalf of respondent Corbin and that it was contrary to appellant’s theory of strict liability; and instruction no. 3 hypothesized reasonable use of the compactor by Carnation Company.

The third error alleged was the trial court’s direction of a verdict for all respondents as to Count II (negligence) on the premise that decedent was guilty of contributory negligence as a matter of law.

For purposes of disposition herein, points I and II are taken up together.

Instruction no. 7 and instruction no. 3 are set forth herein.

“INSTRUCTION NO. 7

Your verdict must be for defendants Dempster Brothers, Inc. and Carrier Corporation unless you believe:

First, that Donald Mead was using the compactor at the time of his death, and

Second, Donald Mead was using the compactor in a manner reasonably anticipated, and

Third, the compactor was in substantially the same condition at the time of the death of Donald Mead as it was when delivered to the Carnation Company, and

Fourth, Donald Mead was killed as a direct result of a defect in the compactor which was present at the time it was delivered to the Carnation Company.” (Converse-Dempster Brothers, Inc. — Carrier)

“INSTRUCTION NO. 3

Your verdict must be for Plaintiff Patricia Ann Mead and against Defendant Cor-bin if you believe:

First, Plaintiff was the lawfully wedded wife and is the surviving widow of Donald Dean Mead, and

Second, Defendant Corbin sold the trash compactor, and

Third, the trash compactor, as manufactured, was defective and therefore dangerous when put to a use reasonably anticipated, and

Fourth, when Carnation bought the trash compactor, it was in substantially the same condition as when manufactured, and

Fifth, Carnation used the trash compactor in a manner reasonably anticipated and Donald Dean Mead was killed as a direct result of the trash compactor being defective, unless you believe that Plaintiff is not entitled to recover by reason of Instruction No. 5.” (Verdict director-appellant)

On this appeal, the parties embark upon the controversy of whether decedent was a “user” or a “bystander”. This issue, as joined, is not permitted herein to address the question if both users and bystanders are afforded a right of redress in cases of strict liability. To be sure, that question was answered in Giberson v. Ford Motor Company, 504 S.W.2d 8 (Mo.1974) wherein the Supreme Court enlarged the group protected to include bystanders.

The matter which must be resolved herein is, “Under which definition do the facts in evidence place the decedent?”

A bystander, as defined by Webster’s New Collegiate Dictionary, is “one present but not taking part in a situation or event: a chance spectator.” A user, by the same source, is “one that uses” and the verb “use” means to “1. accustom, habituate. 2. to put into action or service: avail oneself of: employ. 3. to consume or take (as liquor or drugs) regularly. 4. to carry out a purpose or action by means of: utilize. 5. to expend or consume by putting to use. 6. to behave toward: act with regard to: treat . . . ,

The evidence herein clearly places the decedent, by his actions, within the definition of a user and not a bystander. The evidence established that for some 3-4 months, decedent had off and on been working on and around the trash compactor with a purposeful intent of adding to and modifying the structure thereof. The decedent did not merely report to the particular job site and stand idly by, but with deliberate design, actively engaged in work, attending to the operation and use of the compactor. The decedent, by his activities, was a user within the definition of that term as decided in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969), and by virtue of that definition, as applied to the facts herein, the issue of decedent being a user was established by the evidence. Therefore, the evidence having established decedent as a user, such was a part of appellant’s case and should have been included within appellant’s verdict directing instructions. It then must follow that respondents were entitled to converse those instructions. The failure to include the term within the verdict directing instruction did not require respondents to converse an instruction which failed to include an essential element of appellant’s case, but to the contrary, the giving of instructions no. 7 and no. 4 were proper as being in conformity with MAI 25.04, MAI 33.01 and Supreme Court Rule 70.02. Points I and II are, for the reasons set forth, ruled against appellant.

Appellant’s final point alleges error by the trial court in directing a verdict for all respondents upon Count II (negligence theory) of the petition on the basis that decedent was contributorily negligent as a matter of law.

Appellant must fail on point III because the evidence clearly, as a matter of law, established the respondents herein owed no duty or responsibility to appellant which they breached to safeguard the decedent against injury.

In addition, the evidence established the operation of the trash compactor was open and obvious for anyone to see. The decedent had worked around and upon the compactor for some 3-4 months prior to his death. At the time of his death, decedent, owing no duty or responsibility to anyone, knowingly and deliberately inserted the uppermost portion of his body into the compactor. The evidence is unmistakenly clear that the continuation of that body posture, while the compactor was in operation, also provided an obvious appreciation of the danger of serious or fatal injury. The trial court, based upon the evidence, was entirely correct in concluding decedent was contrib-utorily negligent as a matter of law.

The court would be remiss if it failed to note that, as reflected within the record of this case, the briefs and the oral argument, both parties to this litigation were represented by able and dedicated counsel. Their zeal and preparedness are clearly reflected herein.

As mankind continues his day to day working relationship with machines, the misfortune, such as is reflected by the death of appellant’s spouse, will perhaps continue to occur. The law finds itself ill-equipped with possible prevention of such misfortune and is left with the charge to determine if and wherein legal responsibility lies and to provide redress for failure to meet that responsibility. As to the case herein, as supported by the evidence, the judgment entered by both the trial court and jury correctly reflect that no failure of responsibility manifested itself. For the reasons set forth herein, the judgment in all respects is affirmed.

All concur.

      . “ ‘User’ includes those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes, as well as those who are utilizing it for the purpose of doing work upon it, as in the case of an employee of the ultimate buyer who is making repairs upon the automobile which he has purchased.” Restatement of Torts, § 402A, p. 354 (2d ed. 1965).


author: PRITCHARD, Judge.

text:
    Ellen J. BLYTHE, Respondent, v. Keith I. BLYTHE, Appellant.
    No. KCD 30203.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.
    George E. Kapke, Independence, for appellant; Piedimonte & Cochran, Independence, of counsel.
    Gary R. Titus, Independence, for respondent; Tittle & Kerr, a Professional Corp., Independence, of counsel.

      Before SOMERVILLE, P. J., and PRITCHARD and TURNAGE, JJ.
   PRITCHARD, Judge.

In this suit brought by respondent upon a written contract for periodic alimony, the jury returned a verdict for appellant. Thereafter, without specifying any reason, the trial court sustained respondent’s motion for new trial. The inquiry is whether any matter set forth in the motion for new trial sustains the grant of a new trial, State ex rel. State Highway Commission v. Gravois Farmers Club, 483 S.W.2d 786, 788[1] (Mo.App.1972), and the burden of supporting the action to overcome the presumption of error under Rule 84.05(b) is upon respondent. See also Brock v. Steward, 519 S.W.2d 365, 368 (Mo.App.1975).

Apparently, appellant did not serve upon respondent a statement requesting that she prepare the original brief, but proceeded to file his brief first as appellant as in the usual case.

The first ground specified in the motion for new trial is that the verdict is against the weight of the evidence, a discretionary ground under Rule 78.02, Ogden v. Toth, 542 S.W.2d 17 (Mo.App.1976). Under Rule 84.05(c), this court may not presume that the new trial was granted upon any discretionary ground. Vaughn v. Ripley, 446 S.W.2d 475 (Mo.App.1969). Although respondent argues under her Point I that the ground for the new trial was upon the weight of the evidence, in the face of the presumption and the Vaughn case, it may not so be considered. This court may not weigh the evidence to come to the conclusion that the trial court did so in granting the new trial.

The only other possibility of sustaining the grant of the new trial is contained in assignment of error No. 4 of the motion. That assignment sets up that the court erred in refusing Instruction A offered by her, but gave Instruction No. 2, offered by appellant, in that the latter instruction deviated from MAI 26.02 on the breach of a bilateral contract, and it misdirected the jury and prejudiced respondent by allowing it to find against her, and in effect relieved appellant of his contract obligations under Exhibit 1 (the contract) without requiring a specific finding that the parties intended a forfeiture from the clear wording of the contract. It is further contended that the first paragraph of Instruction No. 2 called attention to the ultimate effect of respondent filing her motion to modify in September, 1975 (claimed by appellant to be a breach of the contract mentioned below) without instructing the jury as to the applicable law relative to forfeiture.

The facts are these: The parties, having been married for 21 years, were divorced on April 21, 1971, appellant was then ordered to pay child support of $50.00 per week and alimony of $100.00 per week, with which appellant complied. In September, 1973, appellant returned to Jackson County, Missouri, to attend his daughter’s wedding. He was thereafter served, at a family gathering, with respondent’s motion to modify the previous court order. This upset him very much, and he left respondent’s home soon after being served. Appellant then retained counsel, and filed various cross-motions to respondent’s motion to modify, and the matter was called for hearing on December 3, 1973, at which time the parties reached a compromise embodied in the following written agreement: “COME NOW the parties, personally, and make and agree to the following Stipulation and Agreement, to-wit: WHEREAS Helen Joyce Blythe, hereinafter plaintiff, obtained a decree of divorce from Keith Irwin Blythe, hereinafter defendant, on the 22nd day of April, 1971, and therein received an award of periodic alimony in the amount of one hundred dollars ($100.00) per week and child support for the support of Sue Ann Blythe, in the sum of fifty dollars ($50.00) per week, and, WHEREAS Sue Ann Blythe is now emancipated and is no longer dependent upon the plaintiff, and the date of that emancipation is in dispute by and between the parties, and WHEREAS, plaintiff has filed with the Court a Motion to Modify Decree of Divorce and defendant was served with a copy of that motion under alleged fraudulent circumstances, and WHEREAS, the plaintiff individually and by and through attorneys of record have reached a compromise settlement agreement, THEREFORE, it is hereby stipulated and agreed: 1. That from and after the 8th day of November, 1973, defendant shall pay to plaintiff periodic contractual alimony in the sum of one hundred thirty dollars ($130.00) per week and further, that such sum shall be increased (or decreased) on each occasion that defendant shall receive an increase (or decrease) in his salary in such manner that the periodic contractual alimony shall increase (or decrease) proportionately with any increase (or decrease) in the salary of the defendant. 2. That the defendant hereby waives any objection to the service on him of the plaintiff’s Motion to Modify Divorce Decree filed the 26th day of September, 1973. 3. That defendant hereby waives any credit which may be due him for child support payments made by him prior to the 26th day of September, 1973. 4. That defendant agrees to notify plaintiff, in writing, of any change in his salary within two weeks of the effective date of that change and such notice shall include the percentage any such change shall represent of defendant’s total salary. [Here follows the portion of the agreement in contention by the parties.] 5. That in consideration for the terms and conditions of the stipulation and agreement, plaintiff hereby waives any and all rights to move this Court for future changes, modifications, or alterations of the Court order of periodic alimony based on changes in circumstances. And further, plaintiff promises, covenants and agrees not to move, petition or request that this Court or any other Court change, alter or modify this stipulation and agreement or any order heretofore entered by this Court for so long as defendant faithfully performs the covenants and agreements hereby made on his behalf. * *

During the first four years after the divorce, the parties abided by the terms of the agreement. The contractual alimony was increased on occasions to conform to appellant’s increases in pay. In April, 1975, however, appellant wrote to respondent requesting that she voluntarily agree to a reduction in alimony, which letter was followed by a request to her from appellant’s counsel. Finally, appellant filed a motion to modify the decree eliminating alimony as of May 16, 1975, but he continued making payments. Respondent, after consultation with her counsel, during which she advised him of her agreement not to file a motion to modify, upon his advice, did elect to proceed with a motion to increase alimony filed on September 17, 1975. Both parties’ motions were dismissed upon the ground that the agreement created a contractual alimony relationship. Thereafter, appellant reduced the amount of his alimony payments, and respondent filed a second motion to modify which was subsequently dismissed by her counsel. On November 29, 1976, appellant eliminated any payments whatsoever to respondent, who filed this action on March 1, 1977.

Appellant contends that Paragraph 5 of the agreement, supra, created a dependent moving cause, which must be performed by respondent, “if she is to expect continued performance by the appellant,” and that modified Instruction No. 2 hypothesized the true controversy in the case — “whether or not respondent substantially performed her part of the bilateral agreement,” Instruction No. 2 is:

“Your verdict must be for the plaintiff if you believe:
First, plaintiff substantially performed her obligations under the contract, and Second, defendant did not pay to the plaintiff the payments due her under the contract mentioned in the evidence, and Third, because of such failure, defendant’s contract obligations were not substantially performed, and Fourth, plaintiff was thereby damaged.”
Instruction No. 3 given by the court is:
“Your verdict must be for defendant unless you believe each proposition submitted to you in Instruction No. 2”

Instruction No. A, offered by plaintiff, but refused in lieu of the giving of Instruction No. 2, is:

“Your verdict must be for the plaintiff if you believe:
First, defendant did not pay to the plaintiff the payments due her under the contract mentioned in the evidence, and
Second, because of such failure, defendant’s contract obligations were not substantially performed, and
Third, plaintiff was thereby damaged.”

Instruction No. A follows the form prescribed by MAI 26.02, while Instruction No. 2 is a deviation therefrom, as to the submission upon the theory of breach of a bilateral contract, in that it adds the paragraph, “First, plaintiff substantially performed her obligations under the contract.” Then Instruction No. 3 permitted the jury to find that respondent did not substantially perform her obligations under the contract, i. e., that she breached the contract by her filing of motions to modify the divorce decree which the jury could conclude was a complete defense to respondent’s claim. For the reasons following, Instructions Nos. 2 and 3 constituted an erroneous submission.

It is true, as appellant says, citing Rexite Casting Co. v. Midwest Mower Corporation, 267 S.W.2d 327 (Mo.App.1954), that one cannot claim the benefit of a contract which he has first breached. As noted, however, at page 332 of that opinion, plaintiff’s breach of the indivisible contract was in a material manner, and thus it was precluded from recovering on its contract. § 274, Rest. Contracts, speaks of that situation: “(1) In promises for an agreed exchange, any material failure of performance by one party not justified by the conduct of the other discharges the latter’s duty to give the agreed exchange even though his promise is not in terms conditional. An immaterial failure does not operate as such a discharge. * * (Italics added.) Then, in § 275, Rest. Contracts, the rules for determining the materiality of a failure to perform a promise are set forth: “(a) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated; (b) The extent to which the injured party may be adequately compensated in damages for lack of complete performance; (c) The extent to which the party failing to perform has already partly performed or made preparations for performance; (d) The greater or less hardship on the party failing to perform in terminating the contract; (e) The wilful, negligent or innocent behavior of the party failing to perform; * *

It is clear from the contract for alimony here that the parties agreed upon an exchange of promises, each dependent on the other in a bilateral contract — the appellant agreed that he would pay the contractual alimony in an increased amount in exchange of respondent’s promise that she would not move to modify the original decree in respect to alimony. Thus, the contractual alimony was not based upon a condition, but was upon the parties’ mutual promises or covenants.

Respondent did not file her first motion to modify the decree as to alimony until after appellant requested her to reduce it, and after he, himself, filed a motion directed toward modification. Both motions were dismissed because of the contract for alimony. Then, upon appellant’s unilateral reduction of his payments, respondent filed her second motion to modify, which motion was dismissed by her counsel without adjudication. Although respondent was in technical violation of her agreement, her actions in filing her motions were induced by appellant’s own action in filing his motion which obviously flew in the face of his own agreement to pay alimony in accordance with the contract. Respondent thus had valid excuses for filing her motions. This brings into play paragraph (e) of § 275, supra, and shows that respondent’s motion, although in technical violation of her agreement, was not wilful, but rather was filed in relative innocence. Also respondent had performed her part of the agreement up to the time appellant filed his motion, bringing into play paragraph (c) of § 275.

But what is of more importance here is that the jury was permitted to find that respondent had not substantially performed her obligations under the contract under the submissions of Instructions Nos. 2 and 3, thus imposing great hardship upon her under paragraph (d) of § 275. What appellant possessed under the contract was a vested right to receive alimony thereunder. What the verdict of the jury did was to deprive her of that vested right and, in effect, imposed a forfeiture upon her. “It is well settled that forfeitures are not favored by either law or equity. [Citing cases.]” Norman v. Durham, 380 S.W.2d 296, 301[4-7] (Mo.1964). See also Schurtz v. Cushing, 347 Mo. 113, 146 S.W.2d 591 (1941). “Forfeitures cannot and should not be declared when the rights of the parties have become vested. Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S.W.2d 869, 871[5—7].” Durham, supra, at page 301. Under Rest. Contracts, § 275, supra, and under the particular facts of this case, respondent’s failure to perform her part of the agreement must be deemed not to amount to a material breach thereof. No fact here appears that would justify a modification of MAI 26.02, and it was error for the trial court to do so in its giving of Instructions Nos. 2 and 3. For this reason, it was not error for the court to grant the new trial.

The judgment is affirmed.

All concur.


text:
    Roger L. BRAGER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 30209.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from order overruling motion for post conviction relief pursuant to Rule 27.-26. Affirmed.

Movant was convicted by jury for assault with intent to kill. Punishment was fixed at 25 years. The conviction was affirmed on appeal, see State v. Brager, 497 S.W.2d 181 (Mo.1973). The motion and appeal herein precede Fields v. State, 572 S.W.2d 477 (Mo.banc 1978) and Seales v. State, 580 S.W.2d 733 (Mo.banc 1979). Those decisions being prospective only have no application herein.

This appeal is taken from a first amended motion following three previous motions to vacate. Two issues are presented for review. First, movant contends the trial court erred in the denial of an evidentiary hearing to movant upon the allegations of ineffective assistance of counsel not being conclusively resolved by the record of his case; and second, the trial court erred in not appointing counsel for movant before overruling the motion because said motion presents questions of law and issues of fact.

The trial court made findings of fact and conclusions of law upon the original motion and the amended motion. Said motion violates Rule 27.26(d) in that it raises questions which could have been raised in the prior motions of movant. Determination of movant’s contentions can be found of record within the trial court’s findings.

Movant alleges the violation of his constitutional rights by not receiving a fair trial upon the court’s failure to instruct the jury on criminal intent.

Contained within the court’s findings is trial court instruction no. 4, which is set forth verbatim and resolves this contention against movant.

“The court instructs the jury that all person[s] are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting.”

Movant also contended he was denied effective assistance of counsel because his counsel failed to make a continuing objection or move for a mistrial following the prosecutor’s comment, during final argument, on movant’s failure to testify; his counsel failed to assist movant between trial and the filing of the motion for new trial; his counsel failed to present to the court in his motion for new trial the issue of the prosecution’s comment and his counsel failed to assist movant on appeal by failing to present the issue raised by the prosecution’s comment. Movant further contended he was unaware of this newly discovered evidence at the time of his first motion to vacate his sentence because of his lack of education and knowledge in the area of the law.

Once again, the trial court’s findings and conclusions provide the resolve of these issues. From the findings, the trial judge refers to the transcript of the trial which establishes that the prosecutor’s comment was not that movant did not testify, but that movant failed to make an opening statement. This comment was objected to and the objection was sustained.

The trial court correctly concluded that such comment as supported by the trial record was not upon the evidence and hence was not subject to the prohibition of § 546.270, RSMo 1978 and Rule 26.08.

Further, it can be determined from movant’s allegations that failure of his trial counsel to pursue the issue surrounding the comment by the prosecution, either upon the motion for new trial or appeal, is a conclusion resting upon a eon-clusory premise that movant was denied effective assistance of counsel. Mere conclusion provides nothing for review, Lindner v. State, 571 S.W.2d 441 (Mo.App.1978).

Mere trial error is not reviewable by a motion pursuant to Rule 27.26.

Movant is bound by Rule 27.26(d) and cannot prevail under the rule by pleading ignorance of the rule. This question was perhaps best answered in the words of the trial judge when he stated, “The mov-ant’s continuing legal education while imprisoned is not a valid excuse for failing to present the facts which were known at the time of the prior motion.”

Inherently, the allegations by movant raise no issues which necessitated an evi-dentiary hearing. The record, as reflected within the findings and conclusions by the trial court, does conclusively resolve the matter.

Having concluded movant was not entitled to an evidentiary hearing, movant’s second contention that he was entitled to counsel before a ruling upon the motion has become moot.

The order of the trial court is affirmed.

All concur.