author: GREENE, Judge.

text:
    Rodney A. HAWKINS and Emilee E. Hawkins, Plaintiffs-Appellants, v. SCOTT’S GAS OF LOWRY CITY, INC., Defendant-Respondent.
    No. 13613.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 28, 1985.

      B.H. Clampett, Michael J. Cordonnier, Daniel, Clampett, Rittershouse, Lilley, Dalton, Powell & Cunningham, Springfield, for plaintiffs-appellants.
    John G. Newberry, Schroff, Glass and Newberry, P.C., Springfield, for defendant-respondent.
   GREENE, Judge.

Plaintiffs Rodney and Emilee Hawkins appeal the trial court’s judgment affirming a jury verdict against them and in favor of defendant Scott’s Gas of Lowry City, Inc.

On February 1,1981, a fire destroyed the Hawkins’ home and personal property therein. They sued Scott’s, alleging the fire was caused by the malfunction of a propane tank and regulator leased by the gas company to the Hawkins, and that the malfunction occurred because Scott’s had negligently allowed water to enter the propane tank and that this water had caused the regulator valve of the tank to “improperly operate” resulting in the fire in question.

At trial, the Hawkins advanced two different theories of how water had entered the propane gas system. The first was that while performing repairs on the tank, employees of Scott’s opened up the tank, allowing moisture to enter. The second was that the gas put in the tank by Scott’s contained excessive amounts of water. They claimed that in either of these instances, the excess water would render the system susceptible to explosion and fire.

Scott’s offered evidence that there was no excess moisture in the tank, or in the propane gas used to fill customer tanks, including the one leased to the Hawkins.

In their first point relied on, the Hawkins contend the trial court erred in overruling their objection to certain testimony by defendant’s president, Don Scott. On direct examination by defense counsel, he was asked,

Mr. Scott, in your 30 years of providing liquid petroleum in this area, have you ever heard any complaints about your gas being defective or contaminated?

An objection to this question was sustained, with the trial court opining that 30 years was too long a period for the question to have any relevance. Later, counsel asked Scott, “Did your company receive any complaints about any of its customers within one year before or after February 1, 1981, regarding there being moisture in their gas supply?” Scott answered, “Not to my remembrance.” The Hawkins’ lawyer then objected to the question on the grounds of relevance, and the objection was overruled.

The Hawkins claim that admission of this testimony permitted Scott’s to prove an affirmative fact (absence of moisture in the gas supply of Scott’s customers) by negative evidence (no customer complaints), which is legally prohibited, Kopff v. Miller, 501 S.W.2d 532, 536 (Mo.App.1973), and that such testimony amounted to proof of freedom from negligence by evidence of no prior accident as condemned in Kraus v. Auxvasse Stone & Gravel Co., 444 S.W.2d 434, 436[1] (Mo.1969).

This argument has no merit. One of plaintiffs’ theories advanced at trial was that the bulk supply (gas purchased by Scott’s from Getty Oil and resold to Scott’s customers) was contaminated with water. In such cases, complaints, or lack of them, from consumers are relevant to corroborate, or disprove, plaintiffs’ claim that the bulk supply was contaminated. Albers Milling Co. v. Carney, 341 S.W.2d 117, 123[6] (Mo.1960). The cases cited by plaintiffs in support of their argument do not deal with alleged contamination of a bulk supply, and are not in point.

Plaintiffs’ remaining point relied on contends that testimony concerning test results made on the tank in question by Scott’s expert, Virgil Flanigan, a professor of mechanical engineering at the University of Missouri, Rolla, was erroneously admitted.

Flanigan testified that he performed a cobaltus-bromide test on the propane gas tank of the Hawkins to see if there was any moisture vapor in the tank, and that the test showed no water vapor in the propane gas remaining in the tank. The test was performed August 30, 1983. The Hawkins contend that since the test was not made until two and a half years after the fire, and that the tank had not had its hood locked, nor had it been guarded 24 hours a day since the fire, “the essential particulars (the salient conditions) of the test and of the occurrence in suit” were not substantially the same. We have examined the record, and believe that the testimony of Scott’s and Flanigan on direct examination showed that there had been no significant change in conditions of the tank from the time of the fire until Flanigan made his test.

Experimental evidence is admissible when the experiment is made under conditions substantially similar in essential particulars to the conditions that prevailed at the time of the occurrence. Blevins v. Cushman Motors, 551 S.W.2d 602, 610[9] (Mo. banc 1977).

There was no evidence that the delay between the time of the fire and the time of the test altered or contaminated the test sample in any way and we do not find any other change in conditions that affected the test results.

The admission or exclusion of experimental evidence is a discretionary matter for the trial court. We do not find any abuse of that discretion in this case. Salsberry v. Archibald Plumbing & Heating Co., Inc., 587 S.W.2d 907, 912[4] (Mo.App.1979).

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.


source: Caselaw Access Project

author: PREWITT, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmie Dale RALSTON, a/k/a Jimmie Courtois, Defendant-Appellant.
    No. 13558.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 29, 1985.

      John D. Ashcroft, Atty. Gen., Dan J. Crawford, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Michael Radosevich, Columbia, for defendant-appellant.
   PREWITT, Chief Judge.

Following trial by jury defendant was convicted of burglary in the second-degree and sentenced as a persistent offender to 8 years’ imprisonment.

In his first point defendant asserts that the trial court erred by imposing separate sentences for his conviction of burglary and for his status as a persistent offender. He relies primarily upon State v. Garrett, 642 S.W.2d 378 (Mo.App.1982). There, this district held that upon finding a convicted criminal defendant to be a persistent or dangerous offender, the trial court is authorized to impose a single enhanced sentence and may not impose separate sentences on the guilty verdict and on the persistent or dangerous offender determination.

Here, the record shows that the trial judge sentenced defendant to 8 years and that he made that determination by indicating that had defendant not been a persistent offender, the term would have been 5 years. The judge so indicated orally, and the judgment and sentence stated that “the defendant is guilty of the class C felony of Burglary in the Second Degree (5 years) and Persistent Offender charge (3 years), and ... that defendant be committed to the custody of the Division of Corrections for a term of imprisonment of Eight (8) years”.

In Garrett the judgment and sentence stated that he was sentenced “for 5 years on Arson 5 years Persistent Offinder [sic] said sentences to run Consecutively”. In that case it appeared there was an attempt to make two separate sentences. Here, only one sentence was imposed and the trial judge just clarified why he was assessing 8 years. Accordingly, Point I is denied.

Defendant’s remaining points likewise have no merit. As they are controlled by well established principles and a detailed discussion of them would have no preceden-tial value, in the interest of judicial economy we concisely state our reasons for denying them.

Defendant’s second point claims that the trial court erred in denying his motion to suppress a statement he made to law enforcement officers. Defendant contends his right against self-incrimination was violated in that he did not knowingly waive that right and did not freely and voluntarily make the statements. He also asserts that the trial court’s findings in this regard were inadequate.

There was evidence that defendant was advised as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that he voluntarily consented to make a statement. The trial court found:

[T]hat the defendant did know of his rights and that he freely and voluntarily made the statements. That there was probable cause for arrest and that there was no violation of his Fifth Amendment rights or the rights under the Miranda case. That all of the requirements of the Miranda were met and understood by the defendant.

The trial court’s finding was sufficient. It is unnecessary that the trial judge enter formal findings of fact or write an opinion; it is sufficient if the conclusion of the trial judge as to whether the confession was given voluntarily appears from the record with unmistakable clarity. State v. Ryder, 598 S.W.2d 526, 527 & n. 1 (Mo.App.1980). We do not see how the trial court’s conclusion could have been clearer stated and the evidence supported that finding.

In his third point defendant contends the trial court erred in denying his motion to suppress evidence. Defendant signed a consent to the search of his automobile trunk, but now contends that the “alleged consent was not free of duress or coercion.” Duress or coercion is not shown by the record. It indicates that defendant was asked if he would consent to the search and replied, “I might as well. You will just get a search warrant.” From the “totality of the surrounding circumstances” the trial court could find that the consent was voluntary. See State v. DuBose, 617 S.W.2d 509, 514 (Mo.App.1981).

For his final point, defendant asserts that the evidence was insufficient to support the conviction of burglary because excluding his statement to the law enforcement officers and the evidence found by the search, there is only left “mere presence at the scene” of the burglary. As we have ruled that defendant’s statement and the articles found in his car are admissible, it can no longer be questioned that the evidence was sufficient to support the conviction.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


author: PER CURIAM:

text:
    STATE of Missouri ex rel. Gladys WILSON, Relator, v. Honorable Richard D. COPELAND, as Associate Circuit Judge of the 29th Judicial Circuit of Missouri, Respondent.
    No. 13770.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 29, 1985.
    E. Mitchell Hough, Dale L. Davis, Bus-sell, Hough, O’Neal, Crouch & Hall, Springfield, for relator.
    William H. McDonald, James B. Condry, Rebecca B. Myers, Woolsey, Fisher, White-aker, McDonald & Ansley, Springfield, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

PER CURIAM:

This is an original action in prohibition. The sole question before the court is whether the respondent exceeded his jurisdiction in ordering production of documents pursuant to Rule 58.01 because the requests were over broad in that the documents and other things requested were not designated with the reasonable certainty required by Rule 58.01(b), which in pertinent part reads as follows:

“... The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable par-ticularity_” (Our emphasis.)

As we glean the facts from the records, documents and other papers before us, the action in which discovery is sought is an action for personal injuries sustained as a result of a gas explosion which occurred on June 18, 1982, in Jasper County. The injured plaintiffs brought suit against their gas supplier and their landlord. Other defendants, including the pipeline carrier of the gas, were joined at various times between July 1,1982, and November 16,1983. Williams Pipe Line Company is a common carrier of petroleum products, including liquified petroleum gas. It is averred, among other things, that Williams failed to stench the gas properly.

Williams was joined as a defendant by amendment of plaintiffs’ petition on September 15, 1983. Williams was served and thereafter filed an answer on December 15, 1983. On the theory that it cannot be liable if the gas involved was properly stenched when it was taken from Williams’ terminal at Carthage, Williams filed a number of requests for production of documents. The requests here in question are part of a set served upon the relator on February 8, 1984. By requests numbered 7, 8 and 9, Williams called upon defendant to produce for examination and copying:

“7. Any and all documents, reports, statements, or any other written or transcribed material concerning the taking of gas samples from the tank which was located on the St. John’s farm on June 18, 1982 at any time on and after June 18, 1982.
8. Any and all documents, reports, statements, or any other written or transcribed material concerning any tests done on any of the gas samples taken from the tank which was located on the St. John’s farm on June 18, 1982 at any time on and after June 18, 1982.
9. Any and all documents, reports, statements, or any other written or transcribed material concerning any tests done on any appliance, appliance control, gas pipe, the tank, or any other item which was located on the St. John’s farm premises on June 18, 1982 that is in any way connected with the allegations contained in plaintiff’s third amended petition.”

To reiterate, the question before the court is whether these three requests for production are so broadly drawn that they call for production of material which is not discoverable. In considering this question, we have looked to the federal authorities construing Fed.R.Civ.P. 26 and Fed.R. Civ.P. 34 as persuasive, to the extent those rules are similar to our Rules 56.01 and 58.01.

Rule 58.01 calls for specification of the documents or other things to be produced “with reasonable particularity.” Requests for production which commence “[a]ny and all documents, reports, statements, or any other written or transcribed material ...” can scarcely be regarded as reasonably particular, even though the “designation” requirement of Rule 58.01(b) must be regarded as relative. See: Paiewonsky v. Paiewonsky, 50 F.R.D. 379, 381 (D.C.V.I.1970); Dynatron Corporation v. United States Rubber Company, 27 F.R.D. 480, 481 (D.C.Conn.1961). If Williams Pipe Line’s requests for production of Nos. 7, 8 and 9 were granted and taken literally, they would amount to a license to demand the entire content of relator’s file, including matters which are privileged and not discoverable.

We decline to go further and discuss the limits of discovery; the limits upon the discoverability of an adversary’s work product are set out in Rule 56.01(b)(3) and were restated in Porter v. Gottschall, etc., 615 S.W.2d 63 (Mo. banc 1981); the nature of the attorney-client privilege which is protected from discovery was fully discussed in State ex rel. Great American Insurance Company v. Smith, 574 S.W.2d 379 (Mo. banc 1978). And, if it is the opinion of experts which Williams Pipe Line is after; it is to be recalled that discovery of the opinions of experts whom one’s adversary expects to call is considerably more limited than that contemplated by the present federal rules of discovery. We are confident that after defendant Williams Pipe Lines’ first set of interrogatories is answered, counsel will know how to proceed properly and expeditiously.

For the reasons stated, our provisional rule in prohibition is made absolute.

All of the Judges concur.

      . References to rules are to Missouri Rules of Court (15th ed. 1984).


author: SHANGLER, Judge.

text:
    VILLAGE OF CAIRO, Missouri, Respondent, v. BODINE CONTRACTING COMPANY, Appellant.
    No. WD 35309.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

      Timothy R. Thornton, John H. Swoboda, Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, for appellant.
    Dick H. Woods, Sheryl B. Etling, Stin-son, Mag & Fizzell, Kansas City, for respondent.
    Before DIXON, P.J., and SHANGLER and CLARK, JJ.
   SHANGLER, Judge.

The Village of Cairo contracted with the Bodine Contracting Company for the installation of a comprehensive sewage and treatment facility. The system was designed in two sections: an interceptor sewer and a sewage collection system. Thus, each project was the subject of a separate bid and separate agreement. Bodine was low bidder on each project and was awarded the work for each by separate contract. A term of both, the Interceptor Contract and the Collection Contract, was that Bo-dine complete the work within 360 days after receipt of the notice to proceed or of a written work order. Work commenced on June 11, 1981, but neither project was completed within the time defined by contract. A dispute arose between the principals: Bodine contended that the progress payments due on each project had not been met and notified Cairo that unless received within the times specified, the contracts would be terminated. Bodine ceased all work on the projects on October 8, 1982, and on October 11, 1982, Bodine advised the mayor of Cairo that the Collection Contract was terminated. On that same day the mayor gave notice to Bodine that both contracts would be terminated pursuant to contract provisions, and on October 22, 1982, Cairo terminated them. The principals, each, asserted the right to termination under specific provisions of the contracts. A term of the Interceptor Contract allowed the contractor to terminate, upon a seven-day notice, if the certified pay estimates were not met after ten days of presentment. A term of each contract allowed the owner — Village of Cairo — to terminate upon ten days notice for failure of the contractor to correct the conditions cited as the basis for the termination.

The two contracts each contained an arbitration clause, but each was distinctive. Cairo financed the Interceptor Contract with a grant from the United States Environmental Protection Agency [and the Missouri Department of Natural Resources], and the terms of that contract were devised by that federal agency. Cairo financed the Collection Contract with a grant from the Farmers Home Administration of the United States Department of Agriculture, and the terms of that agreement were devised by that federal agency.

On November 2, 1982, Bodine made written demand for arbitration with the American Arbitration Association and cited the Village of Cairo as respondent. Cairo objected to administration by the A.A.A. on the ground that no agreement to arbitrate the disputes subsisted under either of the arbitration provisions. The arbitrator ruled nevertheless that an issue of arbitra-bility existed and that the A.A.A. would continue with the administration of the arbitration. Cairo thereupon brought a suit in the circuit court to enjoin the arbitration and for a declaratory judgment, and a separate count for damages for the Bodine breach of contract. The court adjudicated the separate count for injunction and declaratory judgment in favor of the petition and determined that Cairo was not under obligation to submit any of the disputes to arbitration because no contract to arbitrate those claims subsisted between the principals. The court enjoined Bodine from any demand for arbitration of those disputes. The appeal to this court is from that judgment. § 435.440.1(1).

The motion by Bodine for an order to stay the suit by Cairo to enjoin the Administration of the A.A.A. arbitration and to compel Cairo to arbitration of the disputes [which culminated in the judgment under review] asserts the auspices of the Federal Arbitration Act [Title 9 U.S.C.], and alternatively, of the Missouri enactment of the Uniform Arbitration Act [§§ 435.350 to 435.470, RSMo Cum.Supp. 1980]. The response of the Village of Cairo to the demand for arbitration was to deny jurisdiction of A.A.A. under either the Federal or Missouri Act. The response of the Village of Cairo to the motion to stay, however, was to acquiesce in the motion contention that the arbitration provisions of the contracts are amenable to jurisdiction under one or the other of the Acts. If — as Bodine asserts and Cairo does not affirmatively dispute — the contract transactions for the collection and interceptor systems involved commerce within the sense of §§ 1 and 2 of the Federal Arbitration Act, the question whether the pendent suit is referable to arbitration becomes a matter of federal substantive law [see Appendix note 2], Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); State ex rel. St. Joseph Light & Power Company v. Donelson, 631 S.W.2d 887, 890[2] (Mo.App.1982). If not, the state law applies. The question presented by the motion — the ar-bitrability of the demands — and the judicial mechanism to determine the question are the same, whether under the Missouri or Federal Act, and the counterpart sections are promulgated in much the same language. [Subsections 1 and 2 of § 435.355 compared with §§ 2 and 3 of 9 U.S.C.]. Those states which subscribe to the Uniform Arbitration Act, moreover, share the disposition of the Federal Arbitration Act to enforce arbitration agreements as a matter of the cogent public policy in favor of resolution of disputes without resort to the courts. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); Ellis v. Rocky Mountain Empire Sports, Inc., 43 Colo.App. 166, 602 P.2d 895, 897[1] (1979); Detroit Automobile Inter-Insurance Exchange v. Reck, 90 Mich.App. 286, 282 N.W.2d 292, 294[1] (1979), and the other cases collected in Recent Developments: The Uniform Arbitration Act, 48 Mo.L.Rev. 137,147 n. 95 (1983). And, indeed, the litigants — Bodine and Cairo — intersperse their briefs and arguments with citations from the substantive case law developed under the state and federal Acts — all without distinction.

A written agreement to submit a present or future controversy to arbitration is “valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract” —both under the Federal and Missouri Acts [9 U.S.C. § 2 and § 435.350, RSMo 1980]. The respective acts also empower a court to stay a judicial proceeding and to enforce an agreement to arbitrate, or to stay an arbitration where no agreement exists [9 U.S.C. §§ 3 and 4; § 435.355, subsections 1 through 4]. The motion of the contractor Bodine to enjoin the court action and to compel arbitration and the response of the Village of Cairo pose [as to the Interceptor Contract] whether the arbitral provision was operative under the proven circumstances, and [as to the Collection Contract], whether an arbitral provision subsisted at all. In such a determination, the court proceeds summarily without regard to the justiciability of the disputes asserted for arbitration. If the court finds agreement to arbitrate, and that the dispute is encompassed, the court must order arbitration; otherwise, the parties are left to the judicial resort [9 U.S.C. § 4; § 435.-355, subsections 1 through 5]. The obligation to arbitrate, by the very terms of the Acts, rests on free assent and agreement [9 U.S.C. § 2 and § 435.350]. Thus, the subsistence and validity of an arbitration clause is governed by the usual rules and canons of contract interpretation. United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); Westbrook School Comm. v. Westbrook Teachers Ass’n, 404 A.2d 204, 207 (Me.1979), and see also the cases discussed in Recent Developments: The Uniform Arbitration Act, 48 Mo.L.Rev. 137, 147 (1983). That determination is relegated to the courts as a question of law [9 U.S.C. § 4 and § 435.355]. Drake Bakeries, Incorporated v. Local 50, etc., 370 U.S. 254, 256, 82 S.Ct. 1346, 1348, 8 L.Ed.2d 474 (1962); Demers Nursing Home v. R.C. Foss & Son, Inc., 122 N.H. 757, 449 A.2d 1231, 1232[1,2] (1982). On these principles, “a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.” Atkinson v. Sinclair Refining Company, 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962); Williams v. Clean Coverall Supply Co., Inc., 613 S.W.2d 659, 662[3] (Mo.App.1980).

The court rested judgment on premises that, as to the Interceptor Contract, the arbitration provision imposes a condition to arbitration that the contractor work progress during any such proceedings, but that Bodine discontinued work on October 8, 1982, and never resumed performance before the demand for arbitration on November 2, 1982. The court determined that, as to the Collection Contract, the dispute involved interpretation of the contract documents, a subject expressly excluded from arbitration by that term of agreement.

The Interceptor Contract

The arbitration terms of the Interceptor Contract provide:

30. ARBITRATION
30.1 All claims, disputes and other matters in question arising out of, or relating to, the CONTRACT DOCUMENTS or the breach thereof, except for claims which have been waived by the making and acceptance of final payment as provided by Section 20, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.
30.2 ...
30.3 The CONTRACTOR will carry on the WORK and maintain the progress schedule during any arbitration proceedings, unless otherwise mutually agreed in writing, [emphasis added]

Bodine contends that these terms do not tolerate the sense attributed to them by the trial court: that the contractor continue the work progress as a condition to the demand for arbitration. The contractor contends that the failure to perform work pending arbitration was, at worst, a breach of contract otherwise remediable, and, on sound policy, could not precipitate a forfeiture of the right to arbitrate. Cairo responds that component paragraph 30.3 of the arbitration clause expresses a clear condition that continuation of the work by Bodine precede recourse by the contractor to the arbitration forum. There is no contention, therefore, that a “valid, enforceable and irrevocable” agreement to arbitrate contract disputes does not subsist between them, but only that the conduct of contractor Bodine amounts to a choice to forgo the arbitration forum to resolve them. The Federal and Uniform Acts express a public policy of concern for an unhampered judicial system so superven-ient that — once the existence of an agreement to arbitrate is proven — the clause is construed in favor of the arbitrability of a dispute “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). This declaration of principle, although rendered in the context of a labor relations case, serves as rationale for federal and state court decisions in commercial bargains, as well. Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 27, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 44 [8-10] (3d Cir.1978); City of Meridian, Mississippi v. Algernon Blair, Inc., 721 F.2d 525, 527[3] n 2 (5th Cir.1983); Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498, 501 (1974); Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md.App. 307, 320 A.2d 558, 570 (1974); Southeastern Michigan Transportation Authority v. Amalgamated Transit Union Local 1564, 116 Mich.App. 154, 321 N.W.2d 876, 878 [2, 3] (1982); University of Alaska v. Modem Construction, Inc., 522 P.2d 1132, 1138 (Alaska 1974)—among the many others.

The order to enjoin Bodine from arbitration of the demand under the Interceptor Contract rests on the determination that the terms of agreement require, “as a condition to the right of arbitration,” that the contractor maintain the work progress schedule — a condition precedent not performed. Bodine argues that the refusal to continue the work was justified by the failure of Cairo to make the progress payments, and, even if not justified, was merely a breach of contract, and so was itself a subject for arbitration under the terms of that contract provision. Cairo responds that the continuance of the work under the Interceptor Contract was, as the court found, a condition precedent to any right of arbitration, and that the contention by Bo-dine that its continued performance was made impossible — and therefore excused— by the refusal of Cairo to make progress payments is not supported by the evidence.

We iterate at outset that the inquiry of the court under the Arbitration Acts — Federal and Missouri — is to determine whether a claim is arbitrable: does a valid agreement to arbitrate exist, and if so, does the dispute fall within those terms? To that end, the court proceeds summarily to construe the arbitration agreement and disregards whether the subsistent dispute has merit under the contract terms. [9 U.S.C. § 3; § 435.355.1 and 2], In this exercise, “[t]he courts ... have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.” United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568[7], 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). [To the same effect is § 435.355.5: “An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.”] The express terms of Arbitration clause 30.1 of the Interceptor Contract leave all questions of the breach of the contract documents to the arbitrator — therefore, whether the Bo-dine discontinuance of performance amounted to a breach of the contract, or whether continued performance was excused by the Cairo nonpayment under the contract are matters the agreement of the parties leaves to the arbitration forum — unless, of course, the nonperformance of work by Bodine amounted to such a breach of the arbitration agreement as to excuse Cairo from its obligation to arbitrate under its terms.

A contract for arbitration, as any other contract, may be breached, but not every breach excuses the other party from the promise to arbitrate, any more than any breach of a construction contract excuses further performance by the other party. 6A Corbin on Contracts § 1443, pp. 442 et seq. (1962); Drake Bakeries, Inc. v. Local 50, American Bakery, etc., 370 U.S. 254, 262 n. 6, 82 S.Ct. 1346, 1350 n. 6, 8 L.Ed.2d 474 (1962). On the other hand, a fundamental breach, a breach vital to further performance [such as unexcused failure to make progress payments to a contractor — Guerini Stone Co. v. P.J. Carlin Construction Co., 248 U.S. 334, 344[7], 39 S.Ct. 102, 106, 63 L.Ed. 275 (1919) ] entitles the other party to repudiate the contract and treat the obligation for further performance as rescinded. Weber Chimney Co. v. Itasca Paper Co., 199 S.W. 141, 143 [1, 2] (Mo.1917). So, also, mere nonperformance of an arbitration agreement, even though unjustified, is not per se a repudiation. “Only [o]ne who flatly repudiates the provision for arbitration itself ... ha[s] no right to the stay of a court action brought by the other party.” A repudiation [or waiver] of the arbitration promise results from the disregard of either a procedural or substantive condition that separate clause imposes — such as inaction or delay in the enforcement of the arbitration right, or by a prior election to submit the issue to a court. Shinto Shipping Co., Ltd. v. Fibrex Shipping Co., Inc., 572 F.2d 1328, 1330 (9th Cir.1978); Marthame Sanders & Co. v. 400 West Madison Corporation, 401 So.2d 1145 (Fla.App.1981). See also the citations on the subject collected in Ged-icks, Contractual agreement to Arbitrate Disputes: Waiver of the Right to Compel Arbitration. 52 Cal.L.Rev. 1513 (1979). A repudiation results when conduct of a party is so inconsistent with the end of the arbitration clause as to indicate that the right has been abandoned. Brennan v. Kenwick, 97 Ill.App.3d 1040, 54 Ill.Dec. 574, 425 N.E.2d 439, 441 (1981). Inconsistency is found from conduct which prevents arbitration, or makes that recourse impossible, or which proceeds “at all times in disregard of the arbitration clause.” EFC Development Corporation v. F.F. Baugh Plumbing & Heating Inc., 24 Ariz.App. 566, 540 P.2d 185, 188 [3, 4] (1975).

There is no contention that the Bodine claim that the Cairo failure to make progress payments and of engineer error were breaches of contract not within the scope of the inclusive all claims terminology of component paragraph 30.1 of Arbitration clause 30. The judgment denies the order to Bodine on the premise that paragraph 30.3 of that clause imposes on the contractor as a condition precedent to arbitration that the work performance continue. In contract law a condition is defined [Restatement (Second) of Contracts § 224 (1979) ] as: “an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” See also 3A Corbin on Contracts §§ 628 and 739 (1960); Highland Inns Corporation v. American Landmark Corporation, 650 S.W.2d 667, 672[6-9] (Mo.App.1983). The contract language of paragraph 30.3 is: “The CONTRACTOR will carry on the WORK and maintain the progress schedule during any arbitration proceedings.’’ [emphasis added] The contract as written describes an arbitration in the process of administration, and not a process yet to begin. The contractor promises only to carry on as to the work not in dispute while the work in dispute continues in arbitration, and not to continue all work — disputed or not — or risk forfeiture of the arbitration forum. In terms of the contract law of condition, therefore, continued performance [by Bo-dine] is not an event which must occur before performance [by Cairo] to arbitrate becomes due. The mutual promises of paragraph 30.1 to arbitrate all claims are unconditional: they contemplate that a party may abstain from further work performance — the discontinuance of work by the contractor included — on the good faith belief that the breach of contract by the other is so vital as to excuse further performance. The promise of the contractor in paragraph 30.3 to continue work during the arbitration proceeding does not precondition access to the arbitration forum, but gives assurance that the remainder of the contract will be performed while any dispute is administered.

The integral Arbitration clause 30 as written conforms to the contract principle that there is no inconsistency in the position of a party who demands arbitration and at the same time asserts legal privilege not to proceed with performance. Drake Bakeries, Inc. v. Local 50, American Bakery, 370 U.S. 254, 263, 82 S.Ct. 1346, 1351, 8 L.Ed.2d 474 (1962); Reid Burton Construction Co. v. Carpenters District Council of Southern Colorado, 535 F.2d 598, 601 (10th Cir.1976). It also expresses the general principle, adopted by a vast preponderance of the courts, that a general provision for the arbitration of all disputes [like the all claims paragraph 30.-1] includes within its scope every breach that is asserted and denied, however great in importance, except a breach which amounts to repudiation of the arbitration provision itself. 6A Corbin on Contracts § 1443, at 442 (1962); also Recent Developments: The Uniform Arbitration Act, 48 Mo.L.Rev. 137, at 159 et seq. (1983).

The right of the contractor to arbitrate the contract disputes was unconditional, and the refusal by Bodine to continue the work progress schedule, therefore, was neither a repudiation nor even inconsistent with access to the arbitration forum.

One case considers an arbitration agreement with exact counterpart components to the Bodine-Cairo clause 30 asserted on the same issues. In Chester City School Authority v. Aberthaw Construction Company, 460 Pa. 343, 333 A.2d 758 (Pa.1975), the contractor completed much of the construction of a school building when a flood caused severe damage to the structure. The owner School Authority demanded repair and completion of the structure as performances required under the contract. The contractor denied it was responsible to restore the flood damage and refused to repair without additional payment. The owner School Authority declared the contractor in default and sued for breach of contract. The contractor made formal demand for arbitration, and moved to stay the suit pending arbitration, but the equity court refused and enjoined arbitration instead. The premise of that order was [l.c. 762] that the arbitration clause did not include “any claims arising out of repudiation or termination of the contract.”

As preface, the Supreme Court of Pennsylvania noticed first that the state statute was an expression of the public policy in favor of the settlement of disputes by arbitration and, to that end, such agreements were given a liberal construction. The court then turned to the text of the arbitration clause itself. Paragraph 7.10.1 was cast in the same language as paragraph 30.1 of the Bodine-Cairo clause. The court commented [l.c. 764]:

“In the clearest terms conceivable, the drafters of § 7.10.1 have included within -the ambit of disputes to be subjected to arbitration, those breaches that would give rise to the repudiation or termination of the contract.”

In response to the premise of the equity court in the refusal of the order to arbitrate — that the provision of § 7.10.3 [counterpart of Bodine paragraph 30.3] that the contractor carry on the work during any arbitration proceedings indicated intention that the arbitration procedure was not available after the termination of the contract — the Pennsylvania Supreme Court responded [l.c. 764]:

“In our view, § 7.10.3 was only to provide for continuation of the work in those areas not related to the disagreement ... and [l.c. 765] merely requires that work not in dispute must be continued during the course of the arbitration proceedings.” [emphasis added]

See also Gavlick Construction Company, 526 F.2d 777, 786 n. 19 (3d Cir.1975) and State ex rel. Skinner v. Lombard Company, 106 Ill.App.3d 307, 62 Ill.Dec. 540, 436 N.E.2d 566, 568[1, 2] (1982).

The order of the trial court to enjoin the Bodine Demand for Arbitration of disputes under the Interceptor Contract erroneously applies and declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The order is set aside and the cause is remanded for arbitration in accordance with the agreement of the parties.

THE COLLECTION CONTRACT

The arbitration terms of the Collection Contract provide:

GC-8. Arbitration. Disputes on matters not governed by the contract documents, and which otherwise cannot amicably be decided or settled, shall be arbitrated by three disinterested parties, one each chosen by the disputing parties and the third by the two first chosen; such arbitration being a condition precedent to any right of legal action. It is hereby intended to lay down a principle of action to be followed where controlling statutes do not provide a manner of procedure and legal effect of award by arbitration; in case of conflict, the principles herein set forth shall be locally adapted to the legal requirements of such controlling statutes. Should either party fail to name an arbitrator within 10 days following the appeal to arbitration, his right to arbitration shall lapse. Should either party refuse or neglect to supply the arbitrators with any demanded papers or information, the arbitrators shall proceed ex parte. The written decision of any two arbitrators shall be binding; shall not be open for objection as to award or form of proceedings except as otherwise provided by statute; and shall be filed in court if so required to carry it into effect. The arbitrators shall fix their own compensation and access the cost of arbitration upon either or both parties as the merits of the case demand, [emphasis added]

The court enjoined the Bodine demand for arbitration under the Collection Contract on the premise that they were not on matters not governed, by the contract documents [that is, that the disputes involved construction of the contract documents] and so were expressly excepted from Arbitration Clause GC-8.

The contractor attempts the argument that no contractual language directs the conduct of the parties in any given situation — such as the claims for additional time and money to repair obstacles which directly interfere with construction, or the compensation for the repair and replacement of obstructions done by the directive of the engineer, or how to hold the engineer to the contract duty to set and correct construction stakes, among others. These, however, all amount to infractions of specific provisions of the Collection Contract [for instance, General Conditions 9(e), 9(j), 9(k), and 11(e)] and the breaches of these express provisions are the very subject of the Demand for Arbitration served upon the owner Cairo and submitted to the American Arbitration Association for administration under the terms of Arbitration Clause C-8. The contentions these disputes pose are questions of performance under the contract terms, and so are arbi-trable as such, but only if an agreement to arbitrate subsists, and if the particular disputes are encompassed within its scope.

There is no contention that an agreement to arbitrate does not exist as a separate undertaking between Bodine and Cairo. Section GC-8 of the Collection Contract, titled Arbitration, announces the assent of the subscribers to that method of dispute resolution. The function of an agreement to arbitrate — as the text of Federal Act, 9 U.S.C. § 2 declares is: “to settle by arbitration a controversy thereafter arising out of such contract or transaction.” The Missouri Act § 435.350 declares a like purpose: to validate “a provision in a written contract [except contracts of insurance and contracts of adhesion] to submit to arbitration any controversy thereafter arising between the parties.” The purpose of these statutes is to permit a speedy, efficient, and less costly alternative than court litigation to resolve contract disputes. Prima Paint Corporation v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270 (1967); Demers Nursing Home, Inc. v. R.C. Foss & Son, Inc., 122 N.H. 757, 449 A.2d 1231, 1233[3] (N.H.1982). Thus, the mutual promises to settle disputes are the quid pro quo for the arbitration agreement. 6A Corbin on Contracts § 1443, at 443 (1962); Restatement (Second) of Contracts § 71 (1979); R.W. Roberts Construction Co. v. St. Johns River Water Management District, 423 So.2d 630 (Fla.App.1982). The arbitration promise is itself a separate contract, and as such, the parties are free to define the scope of that promise. Atkinson v. Sinclair Refining Company, 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962). The undertaking to arbitrate some specific thing, however constricted the scope, is of the very essence of a contract to arbitrate. 16 Williston on Contracts § 1919A (Third Edition, Jaeger, 1976). Thus, the very existence of a clause to compel arbitration — such as GC-8 — attests to the purpose of the subscribers to settle rather than litigate, at least as to some, contract disputes.

The Arbitration Clause GC-8 as written not only declares the purpose to arbitrate, but also defines the method of selection of the arbitrators, the time constraints for the exercise of the right, the conclusive effect and enforceability of the arbitration decision. These components of Clause GC-8 as constituted meet the methods approved by the Acts, both Federal [9 U.S.C. § 8] and Missouri [§§ 435.355, 435.365, 435.385 and 435.415] for selection of the arbitration panel, rendition and conclusiveness of the award. These components of GC-8 confirm the announced purpose and subject of the clause: Arbitration. Another component of the clause — the element on which the judgment to enjoin the demand for arbitration rests — however, contradicts that essential purpose: Disputes on matters not governed by the contract documents shall be arbitrated. In the context of a construction project, it is a rare dispute which does not involve some contract provision. Thus, since the essential purpose of the Acts is to resolve contract disputes in the arbitration forum rather than in the litigation forum, the disputes on matters not governed by the contract documents confines the arbitration process to an anomalous scope, one — once the agreement to arbitrate is found — compatible with neither the statutory imperatives nor with contract expectations.

In a word, these disparate elements of Arbitration Clause GC-8 create uncertainty as to the scope of arbitration intended, and so render the contract ambiguous. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264[5-8] (Mo. banc 1973). The premise of the judgment — that the disputes under the Collection Contract “all involve interpretation of language in the contract documents, and are therefore not subject to arbitration”— in effect discounts any mutual promise by Cairo to arbitrate, and renders that undertaking altogether illusory. 16 Williston on Contracts § 1919A, 138 (Third Edition, Jaeger, 1976); R. W. Roberts Construction Co. v. St. Johns River Water Management District, 423 So.2d 630 (Fla.App.1982). There is no contention, nor does the court adjudge, that no contract to arbitrate subsists. The question, therefore, is not that of validity of contract, but of ambiguity of contract.

The effect the judgment attributes to the — disputes on matters not governed by the contract documents terminology removes from the arbitration forum all disputes under the Collection Contract and so renders Clause GC-8 virtually meaningless. The terms of a contract are read as a whole to come to the intention of the parties. In that exercise each term is construed to avoid an effect which renders other terms meaningless: a construction which attributes a reasonable meaning to all the provisions of the agreement is preferred to one which leaves some of them without function or sense. Harrison v. Union Electric Co., 622 S.W.2d 239, 247[6-8] (Mo.App.1981). In terms of a contract to arbitrate, the separate provisions are construed to give effect to that essential purpose of agreement. Thus, once the intention to arbitrate is established, doubt of the scope of the agreement is resolved in favor of arbitrability. Johnson Controls, Inc. v. City of Cedar Rapids, Iowa, 713 F.2d 370, 375[6, 7] (8th Cir.1983); Lanzo Construction Company v. City of Port Huron, 88 Mich.App. 443, 276 N.W.2d 613, 616[4-6] (1979). This principle of contract interpretation is reinforced by the public policy of the Acts that “an order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 564, 582, 80 S.Ct. 1343, 1353, 4 L.Ed.2d 1403 (1960); Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md.App. 307, 320 A.2d 558, 570 (1974).

A contract ambiguity is construed against the drafter. Village of Cairo, although not the actual author of either Arbitration Clause GC-8 in the Collection Contract, expressly approved and adopted the entire contract documents and tendered them as its own to the bidders, and executed them as its own. There is no contention to the contrary. To aid a court to discern the intention of principals to an ambiguous contract [Rouggly v. Whitman, 592 S.W.2d 516, 519[6] (Mo.App.1979) ], it is proper to consider:

“ ‘the entire contract, subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contract, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances which cast light on the intent of the parties.’ ”

Davis v. Chevy Chase Financial Limited, 667 F.2d 160, 170[11, 12] (D.C.Cir.1981); Shamokin Area School Authority v. Fairfield Company, 308 Pa.Super. 271, 454 A.2d 126, 129[3] (1982).

The extrinsic circumstances show: The construction project entailed a unitary waste removal and treatment facility for the Village of Cairo. The project was designed into separate sections — the Interceptor System and the Collection System — and were bid as separate units and awarded as separate contracts, only because each was financed by a different federal agency. The General Conditions of each set of contract documents were the workmanship of each respective agency, hence the anomaly of a clause in one contract to arbitrate all claims of breach of contract documents, and a clause in the other to arbitrate no claims of breach of contract documents. The contracts, although executed as separate instruments [and on the same date] were performed, from all that appears, contemporaneously. The claims Bodine describes as separate breaches of the Interceptor Contract and Collection Contract in the formal Demand for Arbitration submitted to the American arbitration Association are, for the most part, identical: impairment of performance because of engineer error in the placement of stakes and ambiguous specifications; excused late performance because of unforeseeable causes such as unusually severe weather; the encounters with latent physical conditions materially different from those described in the contract documents, among others. It is likely that the proof of some of the disputes under both contracts will entail the same evidence. That practical reality is tacitly acknowledged by the Village of Cairo. The count for damages which pends against Bodine [and stayed by this appeal] pleads the breaches of both the Interceptor and Collection Contracts as a unitary cause of action and treats the performance under both as a single obligation: “Bodine failed to prosecute diligently the work required of it by the Collection Contract and the Interceptor Contract, failed and refused to pay when due charges for materials and supplies ordered by it for incorporation in the projects and delivered to the work site, failed and refused to employ sufficient workmen to properly and timely perform the required contract work, failed and refused to pay when due wages earned by laborers employed on the project in accordance with the contract documents, plans and specifications and to follow proper directions of the engineer and failed and refused to complete the work required by said contracts within 360 consecutive calendar days, etc.” [emphasis added].

We have already determined the right of Bodine to arbitrate the claims in dispute under the Interceptor Contract. Thus, as to those contentions, the parties are given a forum more conversant with the day-to-day performance of such industrial contracts and more expert in its technical incidents than the usual court. United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960); also: Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) [the astute analysis of the distinctive role of the arbitrator as expert in the dissent of Harlan, J., l.c. 415 et seq.]. Thus, also the parties — as to the claims under the Interceptor Contract — are now not only in a forum adaptable to their needs, but also a speedy, inexpensive and efficient means of resolution of disputes under those contract documents. Scherk v. Alberto-Culver Co., 417 U.S. 506, 510, 94 S.Ct. 2449, 2452, 41 L.Ed.2d 270 (1974); Crosby-Ironton Federation of Teachers Local 1325 v. Independent School District No. 182 Crosby-Ironton, 285 N.W.2d 667 (Minn.1979). The trial court denies a like access for disputes under the Collection Contract — a contract which declares the purpose to arbitrate, but then casts doubt on the scope. We resolve that ambiguity against the proponent of the contract, Village of Cairo, and in favor of the arbitrability of the disputes under the Collection Contract — as described in the Demand for Arbitration. We do so, not only as prompted by the cogent public policy of the Arbitration Acts, but also because the full context of the transaction shows that once the bids were awarded to a single contractor, the work was undertaken, if not as a unitary performance, then a performance continuous, intermingled and undifferentiated as between the Interceptor Contract and the Collection Contract. Thus, the same act or omission of either principal may amount to a breach of both contracts. Thus, also, the same evidence bears as proof on both. The formulations of the Demand for Arbitration by Bodine and the damage Count II of the petition of Cairo demonstrate that.

In these distinctive circumstances, it would compound anomaly with anomaly to deny the disputes under the Collection Contract the arbitration forum. That would pose a risk of contradictory results between the administration of arbitration under the Interceptor Contract and the adjudication of suit under the Collection Contract — and on the same evidence. That course also courts that delay, undue expense and congestion of the judicial calendar public policy now so disprizes.

The order of the trial court to enjoin the Bodine Demand for Arbitration under the Collection Contract is set aside and the cause is remanded for arbitration in accordance with the agreement of the parties.

The order of the trial court to enjoin the Bodine Demand for Arbitration under the Interceptor Contract is set aside and the cause is remanded for arbitration in accordance with the agreement of the parties.

Accordingly, the claim for damages by the Village of Cairo against Bodine for breaches of the contracts, Count II of the petition, is stayed. [U.S.C. § 3; § 435.355.-4, RSMo 1980].

All concur.

      . The dispute the Bodine demand for arbitration asserted was: that the monthly progress payments received were not in the sums due • under the Interceptor Contract and the Collection Contract, but were reduced by the Village of Cairo by deductions for late performance, a delay caused by engineer error and other considerations beyond the control of Bodine — conditions which entitled the contractor to an extension of the time of performance — and so were in breach of the agreements.

      . The Village of Cairo disputed the jurisdiction of the American Arbitration Association to administer the Bodine demand for arbitration by a Special Appearance and Reply. That response asserted that the Association was without jurisdiction over the demand under either the provisions of the Uniform Arbitration Act [§§ 435.-350 to 435.470] or the Federal Arbitration Act [9 U.S.C. §§ 1 et seq.]. The A.A.A. jurisdiction lacked under the Missouri enactment because neither contract bore the legend, in ten point capital letters, adjacent to or above the place for signatures — as § 435.460 requires — THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. The Village of Cairo contended in that response to the Association that the lack of the notice that the contracts contained agreements to arbitrate, rendered them unenforceable against the Village. The A.A.A. jurisdiction lacked under the Federal Arbitration Act, that response asserted, because the contracts did not involve interstate commerce within the sense of the Act.
      In the suit brought in the circuit court to enjoin arbitration and for declaratory judgment, Cairo does not renew those contentions of want of jurisdiction to arbitrate under either the Missouri or Federal Acts. In the motion by Bodine to stay that suit and to compel arbitration, Cairo does not renew those contentions of jurisdiction. The Cairo position before the courts, both trial and appellate, has been steadfastly and simply that the disputes Bodine asserts in the demand for arbitration are not encompassed in the respective arbitration provisions of the two contracts. There is no contention that the arbitration provisions are not operative for failure to comply with state law or for want of transactions which involve commerce.
      Bodine asserts the governance of federal substantive law on the question of the arbitrability of the disputes on the ground that the Interceptor Contract and the Collection Contract are transactions which involve commerce, in that: foreign sureties, vendors and suppliers are involved, and federal administrative agencies are named as obligees of the surety bonds. The record confirms these interstate elements.
      The United States Supreme Court in Prima Paint Corporation v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 401, n. 7, 87 S.Ct. 1801, 1805, n. 7, 18 L.Ed.2d 1270 (1967) rejects a narrow construction of commerce. An extensive review of the federal and state decisions which implement the breadth of Prima Paint concept of transactions involving commerce as the basis for federal law jurisdiction in arbitration matters is given in Burke County Public Schools & Board of Education v. Shaver Partnership, 303 N.C. 408, 279 S.E.2d 816 (N.C.1981).
      Village of Cairo does not contend that it executed either contract without notice that they contained arbitration agreements. Nor do they assert on appeal that either arbitration component is unenforceable for want of the prominent notice required by § 435.460. In any event, for the reasons given in our opinion, we need not choose between the State or Federal Acts, for the same result obtains, and on the same principles.

      . The operation of the Federal Arbitration Act, of course, presupposes [9 U.S.C. § 2] a maritime transaction or a contract transaction which involves commerce. The Missouri version of the Uniform Arbitration Act [§ 435.350] expressly withholds validity from agreements to arbitration in "contracts of insurance and adhesion contracts.”

      . The formulation of the judgment "The court further finds ... that there is no contract requiring arbitration between the parties in the circumstances of this case” intimates the adjudication that no agreement to arbitrate subsisted in either contract. The court, however, then goes on to determine the arbitrability of the Interceptor Contract dispute on the failure of Bodine to meet a condition precedent. A condition precedent, of course, presupposes a subsis-tent contract. Highland Inns Corporation v. American Landmark Corporation, 650 S.W.2d 667, 672 [6-9] (Mo.App.1983); 3A Corbin on Contracts § 633 (1960).

      . Component 30.2 defines the method, manner and time for the demand for arbitration. The judgment of the court found that Bodine complied with all these preliminary conditions to arbitration.


text:
    STATE of Missouri, Respondent, v. Stephen Gary WITT, Appellant.
    No. WD 35626.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

      Mark L. Willens, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, and Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM:

Defendant Stephen Witt appeals from a conviction upon jury trial of possession of more than 35 grams of marijuana, Section 195.020, RSMo Supp.1982, upon which he was sentenced to five years’ imprisonment.

The judgment is affirmed.

Beginning in July 1982, officers of the Missouri State Highway Patrol, the Randolph County Sheriff’s office, and the Federal Drug Enforcement Administration cooperated in keeping under surveillance a thirty-eight acre tract of land in Randolph County upon which marijuana appeared to be growing in a cultivated manner. Earlier aerial surveillance by the Federal Drug Enforcement Administration had revealed the presence of marijuana. The marijuana was located in the northern and southern fields of the tract, but not in the center portion. The area earlier that season had been planted in corn, which by late summer had grown to approximately eight to ten feet in height. The corn had been cut around each marijuana plant to give the plant room for light and growth. Marijuana plants were not strung out throughout the whole field, but were concentrated in areas. The male plants had been removed, thus increasing the THC (tetrahydrocannabinol, resinous liquid and chief intoxicant in marijuana) value and bushiness of the remaining female plants. In addition, brush had been removed from the area surrounding the marijuana plants. A total of 182 plants was found in these two fields, weighing approximately 500 pounds. These fields were kept under almost constant surveillance, twenty hours per day, from the time of the discovery of the growing marijuana.

I

Defendant first contends there was insufficient evidence to support a finding that he knowingly possessed more than 85 grams of marijuana. On review, we determine whether the evidence and the reasonable inferences arising therefrom, viewed in a light most favorable to the State, support the guilty verdict. State v. Franco, 544 S.W.2d 583, 534 (Mo. banc 1976). Where the evidence is circumstantial, as it is in this case, the facts and circumstances relied upon to establish defendant’s guilt must be consistent with each other and inconsistent with any reasonable hypothesis of his innocence, but, for submission to the jury, need not be absolutely conclusive of guilt or demonstrate the impossibility of innocence. Id. In this light, we review the evidence on this record.

During surveillance on September 7th, officers noted the presence of four people, three men and one woman, in the field, all wearing camouflage clothing, including netting over their faces. One of the men toted a sawed-off shotgun. The woman was later identified as the wife of the defendant. Defendant admitted at trial that he, his wife, and Karryl Hanson had been in or near the cornfield on September 7th, but that he, defendant, and Hanson had been inspecting the land for timber.

Also on September 7th, officers noted the presence of a machete, or corn knife, stuck in the ground in the south field at the end of a row of trees. Each day they checked the location of the machete. It remained in the same position, having been checked as late as the morning of October 4, the date of defendant’s arrest.

On October 4th, an officer of the highway patrol and two deputy sheriffs of Randolph County entered the north field for their surveillance shift and observed that marijuana had been freshly cut. They walked to the south field and heard “what sounded like somebody walking through dry corn and we could hear chopping noises.” They then walked to the center field to radio the sheriff’s department for help but could not transmit from the low-lying area. Two officers, Belshe and Samp, returned to the south field while the third sought higher ground from which to radio the sheriff. After being summoned, 16 to 18 officers took part in surrounding the field. In the south field, Belshe and Samp found a trash bag hidden among large roots of a tree along the creek bank. Inside were two canteens, a hard plastic container of food, a paper sack, and an open box of trash bags from which several bags had been removed. The two officers then crossed the creek and hid in the horse weeds, watching to see whether someone would claim the trash bag.

A short time later, two men came walking along the dry gravel creek bed and as they came near the point where, up along the creek bank, the officers were hiding, Deputy Samp stood up, identified himself, and arrested them.

Once notified by radio of the arrest, the remaining officers who had surrounded the field then began searching for other persons in the field. They found no one else, nor did officers in an airplane which had circled overhead for 15 minutes preceding the arrest detect from their vantage point the presence of anyone else in the field.

In the south field, approximately 150 to 200 yards from the arrest site, officers found two plastic trash bags full of freshly cut marijuana. Two or three feet from the bagged marijuana, they found the machete, or corn knife, stuck in a willow tree. The record is unclear (the trial exhibits not having been filed with this court) whether the marijuana had been cut from plants growing in the north or south field.

At the time of his arrest, defendant Stephen Witt was clad in a camouflage shirt, a white T-shirt, jeans, and a camouflage hat. The palms of his hands were dark green, almost black, and appeared to one of the officers to be sticky. Sgt. Belshe then searched the two men. In defendant’s pocket he found a pair of pink-handled clippers, or wire cutters, that had a green cast to them. On his clothing and in his pockets he found cockleburs and leaves which later tests proved to be marijuana. When Sgt. Belshe pointed to the trash bag nearby containing the open box of trash bags and other items, defendant said the whole trash bag was theirs.

Tests of swabbing of defendant’s palms taken at the Randolph County jail after the arrest showed the presence of THC. The pink-handled clippers also showed the presence of THC.

To sustain a conviction under Section 195.020 for possession of marijuana, the state must prove defendant knowingly and intentionally possessed the marijuana, and that he was aware of the presence and nature of it. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

“Possession” as that term is used ... in its legal sense, means knowingly having the actual control and dominion of the [drug] to the exclusion of others.... [I]t is sufficient if the thing possessed is either carried on [defendant’s] person or is in his presence and custody if the possession is immediate, accessible and exclusive to him, (provided, however, that two or more persons may have joint possession of a [drug] if jointly and knowingly they have the dominion, control and exclusive possession described.)

State v. Sledge, 471 S.W.2d 256, 260 (Mo.1971).

Defendant contends he did not have actual control and dominion over any marijuana other than the fragments found upon him, and that, under a theory of constructive possession, he did not have exclusive access to the area.

We note initially that defendant’s claim that, because he was arrested with a companion, he did not have access “exclusive to him,” is without merit, since a showing of joint possession also would sustain the verdict. State v. Sledge, 471 S.W.2d at 261.

The issue then is whether the state proved defendant, either alone or with his companions, had actual control and dominion of the marijuana to the exclusion of others. We note that it is not required that the state show actual physical custody of the contraband, or even that it be in his immediate presence.

One may have possession of a chattel, even in the absence of actual personal custody, if the chattel is under his control and in a place where it must have been put by his act or in his behalf, or where the chattel is within his power in such a sense that he can and does command its use.

63A Am.Jur.2d Property § 37 (1984); see also Annot., 91 A.L.R.2d 810 (1963).

We find the state’s evidence was sufficient on this point. That the 16 to 18 officers who had encircled the field and then searched it found no one, and that the officers circling in the airplane overhead detected no others, combined with other circumstances to make a submissible issue of possession. Those other circumstances are, namely, the dark green color of defendant’s palms and the THC residue on them; the marijuana fragments in his pockets; the “green cast” of defendant’s pink-handled clippers, the THC residue on them, and their location on defendant’s person. The inference arises that defendant recognized, handled and cut marijuana.

Lastly, defendant’s admission at the arrest scene that he owned the trash bag, the contents of which included an open and only partially filled box of trash bags, combined with the circumstances above to make a submissible case, and evidence sufficient to support a guilty verdict. See State v. Hanson, 682 S.W.2d 502 (Mo.App.1984).

II

Defendant next claims MAI-CR2d 3.42, the circumstantial evidence instruction, should have been given to the jury. This instruction must be given if appropriate and if requested by defendant. Notes on Use, note 1; Rule 28.02(a). Since defendant did not request it, there is no basis for error. State v. Lehman, 634 S.W.2d 542, 545 (Mo.App.1982).

III

Similarly, defendant claims MAI-CR2d 3.66, the “mere presence” instruction, should have been given to the jury. It “should be given if requested”, Note on Use. It was not requested and therefore its omission was not error. State v. Doebert, 659 S.W.2d 280, 283 (Mo.App.1983).

IV

Defendant next contends that MAI-CR2d 32.06, the lesser-included offense instruction, should have been given even though defendant had not requested it. We must follow State v. Olson, 636 S.W.2d 318 (Mo. banc 1982) in which “[t]he Court further holds that a defendant may not complain about a court’s failure to give a lesser-offense instruction unless the defendant requests it specifically, except in the homicide cases which are governed by a different standard.” Id. at 323. The point is denied.

V

In his fifth point, defendant claims plain error occurred when the trial judge allowed testimony into evidence which “allowed the jury to make the reasonable inference, from the context' of all the evidence, that appellant had been arrested before, and, also, was evidence of other crimes not connected with the charged offense.”

The testimony in question is the following:
Q: [Defense Attorney] Sergeant Belshe, at the time the arrest was made did you have a Miranda Card with you?
A: No, sir, I didn’t.
Q: And who was the officer with you?
A: Perry Samp.
Q: At the time the arrest was made did Deputy Samp have a Miranda card with him?
A: Sir, I don’t recall on that. I don’t know.
Q: And when Mr. Witt was given the Miranda Warning it was not from the reading of a card.
A: No, sir.
Q: And you gave him the warning yourself from memory?
A: Yes, sir.
Q: Would you tell us into the record what warning you gave him?
A: Yes, sir.
Q: No, without looking at the card.
A: I’m not looking at the card. I have none in my hand, sir.
Q: I thought you were looking at your card.
A: No, I’ve got these nippers in my hand, sir.
Q: Okay.
A: No, when I told him I said: ‘Before I ask you anything you all have the right to remain silent.’ And I said, ‘You know your rights as well as I do.’ They agreed. They had been read them before. And ‘You know your rights! You have the right to remain silent. You have — Anything you say can be used against you in Court, will be used against you. You have a right to an attorney. If you cannot afford one one will be appointed for you. If you do decide to answer any questions you may stop answering questions at any time until an attorney is appointed.’
Q: Did you tell them that anything they might say after the Miranda Warning could be used against them?
A: Yes, sir, I told them that to start with. I said, ‘Anything you say can and will be used against you in a Court of Law.’
Q: And that’s the complete warning you gave them?
A: Yes, sir.

[Emphasis added]

We note that defendant here complains of an alleged error of his own making, elicited by him and not objected to by him. State v. Watson, 607 S.W.2d 189 (Mo.App.1980). Nonetheless, we review for plain error.

Defendant claims that the officer’s statement “they had been read them before” was a reference to “other possible criminal activity of appellant.” The rule of exclusion applies to evidence that defendant “has committed, or has been accused of, charged with, convicted of, or been definitely associated with, another crime or crimes.” State v. Jones, 523 S.W.2d 152, 155 (Mo.App.1975). The statement does not definitely associate defendant with another crime. No “manifest injustice or miscarriage of justice” has resulted therefrom. The trial court’s omission sua sponte to take some corrective action is not plain error. Rule 30.20.

VI

In his last point, defendant claims the trial court erred in permitting Sgt. Belshe to testify as to his “rough guess” of the marijuana’s street value per pound because the answer was highly prejudicial to defendant. Because trial counsel did not object to the answer or request any other relief, defendant on appeal seeks our review of the point under the plain error standard. Rule 30.20. Defendant concedes the admission of the testimony is not reversible error, citing State v. Lowrance, 619 S.W.2d 354 (Mo.App.1981), a case in which testimony admitted on the value of drugs seized was upheld as relevant to, among other things, defendant’s knowing and intentional possession of the drugs. Id. at 356-57. In the present case, the testimony was relevant to defendant’s knowledge and intent in possessing the marijuana, and to his motive — profit—in harvesting it. The admission of this relevant evidence is not error, and thus no “manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20.

Defendant closes by claiming that the error of Sgt. Belshe’s “rough guess” combined with all of the errors alleged above, created an atmosphere in which a fair trial was impossible, resulting in plain error in the aggregate. We find the trial court did not err, and thus no plain error occurred. The point is denied.

We affirm the judgment of conviction.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Lyle NEAL, Appellant.
    No. WD35644.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

      J. Armin Rust, Public Defender, Lexington, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, SHANGLER and DIXON, JJ.
   DIXON, Judge.

Neal was convicted of conspiracy to commit arson in the second degree, Section 564.016 RSMo 1978, and unlawful possession of an explosive weapon, Section 571.-020 RSMo Supp.1984, and was sentenced to two and three years respectively, to run concurrently. He asserts that he was subjected to double jeopardy, that the judge erred in entering the jury room and responding to questions during deliberations, that there was insufficient evidence, and that there was instructional error. Affirmed.

Rena Storm telephoned A1 Crowell, the Waverly, Missouri, Chief of Police at approximately 4:00 to 4:30 a.m. on May 19, 1983, and stated she had been awakened by voices of two men fighting or arguing in the alley between her apartment building and a hardware store. She told Crowell she had heard one man say, ‘‘[t]he next time you get me up in the middle of the night to do something stupid....” Crowell drove to the area, parked his car, and walked into the alley. There he saw two men, one of whom he recognized as Dennis Madison, Neal’s cousin, whom he had seen earlier in the evening in Neal’s company. Crowell heard Madison say, “We’ll throw the son-of-a-bitches into the hole right there.” He then heard the other man respond, “No. No, we’ll throw the son-of-a-bitches in that open window between the two buildings.” Exercising caution, Cro-well left the area, picked up his deputy for a back-up and then returned to the alley. There they found the two men gone, but found three beer bottles filled with gasoline and stuffed with rags, which Crowell left in Ms. Storm’s care. Twelve to fifteen minutes later, and three to four blocks away, Crowell and the deputy found Madison and Neal together. When the officers approached, the men ran in different directions. Neal, wearing gloves that reeked of gasoline, was apprehended immediately. Madison escaped but turned himself in the next day. Neal was jury tried and sentenced to two and three years, which the judge set to run concurrently, for conspiracy to commit arson and possession of an explosive weapon. During their deliberations, the jury asked the judge to enter the jury room to answer some questions. Accompanied by the court reporter, who recorded the entire colloquy, the judge did so.

In his first point, Neal contends that under the Blockburger test [Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ], he was subjected to double jeopardy because the knowing possession of an explosive weapon was one of the overt acts of the conspiracy count and was also separately charged, and because the same evidence was adduced at trial on both counts. Neal failed to raise this constitutional issue at the earliest moment possible, when the case was submitted to the jury, and thus failed to preserve the issue. State v. Thompson, 627 S.W.2d 298, 303 (Mo. banc 1982); State v. Byrne, 503 S.W.2d 693, 695-96 (Mo. banc 1973). Despite the lack of preservation, the point will be reviewed ex gratia.

In Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, the Supreme Court stated that “the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” If so, the defendant is not subjected to double jeopardy by a charge and conviction of both offenses. The elements of the two offenses at issue here are entirely dissimilar and thus, Neal was not subjected to double jeopardy. A conspiracy to commit arson in the second degree requires (1) the purpose or intent to damage a building or inhabitable structure by starting a fire or causing an explosion; (2) an agreement with one or more people to do the act that is the offense; and (3) pursuant to the agreement, the commission of the overt act, by at least one of the people. Sections 564.016 and 569.050.1 RSMo 1978. Possession of an explosive weapon requires the (1) knowing (2) possession of (3) an explosive weapon. Section 571.020.1(1) RSMo Supp. 1984. One could thus conspire to commit second degree arson and do an overt act in furtherance of the conspiracy without even possessing an explosive weapon. In fact, “the overt act required for a conspiracy' conviction need not even be a substantial step in the commission of the target offense.” State v. Cornman, No. 12,845, slip op. at 18 (Mo.App.S.D. Aug. 30, 1984). In rejecting the same argument in an analogous situation, after noting the dissimilarity in elements of the two offenses in question, the Southern District recently stated, “[mjoreover, defendant’s double jeopardy argument has been rejected in Pinkerton [v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)], Callanan [v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)], and Cardarella [v. United States, 375 F.2d 222 (8th Cir.1967), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967)]. In each case, the accused was convicted of conspiracy and of one or more substantive offenses that were the same overt acts alleged in the conspiracy charge. The convictions were upheld.” Cornman, supra, slip op. at 19. Because the two offenses do not share common elements, Neal’s convictions of both offenses did not place him twice in jeopardy for the same offense.

Neal also asserts the court erred in entering the jury room during deliberations and responding to the jurors’ questions. The judge was accompanied by the court reporter who transcribed the following colloquy:

(The jury began deliberations at 4:43 p.m. At 5:40 the following proceedings were had in the jury room:)
THE COURT: They tell me you have a question.
MR. MEYER: Yes. We are in question as to if on each of these counts we would assess one year in the penitentiary, or one year incarceration on each count, would they be served concurrently, and/or would the individual be at the county jail, or would he be at the state level of incarceration?
THE COURT: Well, all I can tell you is that — what I want to do is tell you to read the instructions. I think they say, but apparently this instruction does not say (indicating). But I think if you assess the punishment at actually one year, it’s going to be under number one on each—
MR. MEYER: Count?
THE COURT: —count. It’s probably going to be in the Department of Corrections. And if you assess it — in other words, if it says county jail, it’s talking about county jail. Does that answer your question?
MRS. EMERSON: Would that be one year for each count, or just — or two years?
THE COURT: Total?
MRS. EMERSON: One for one count, and one for the other?
THE COURT: You are talking about consecutive and concurrent?
MR. MEYER: Right.
THE COURT: All right, that is a matter for the discretion of the Court in assessing the sentence.
MR. MEYER: Okay.
THE COURT: Okay. So—
MR. EDWARDS: On a year what does — how long do you have to be in there before you are up for parole?
THE COURT: I’m not at liberty to answer, your question. I can’t answer that question. Probation really is not a matter for you or me at the time to consider. Does that answer your question?
MR. MEYER: Yes, sir.
THE COURT: Or does that not answer your question? Okay, I’m sorry. Thank you all.
(The jury resumed their deliberations, and at 6:08 p.m. the jury returned into open court with their verdict.)

Neal asserts this communication by the court to the jury is error within the ruling of State v. Cooper, 648 S.W.2d 137 (Mo.App.1983). Cooper has no bearing on the issues presented in the instant case, for in Cooper there was both a separation of the jury and a communication between one jur- or and the trial judge.

The issue here is whether the judge’s responses to the jury’s questions were appropriate. The manner in which the responses were given was not appropriate. It would have been better practice for the trial court to have asked the jury to commit the questions to written form and, after having seen them, to have responded . in open court on the record. Such a course of action would have eliminated the awkwardness of the court’s answer concerning the place of confinement. Following that procedure would have enabled the trial court to have summoned the lawyers if they were at hand and to have made a record as to any objections to the proposed answers. The trial judge is not to be faulted for proceeding without the lawyers if they were not available. It is the lawyer’s obligation to remain available to the court for just such contingencies as this.

Neal complains that the trial judge’s response with respect to the place of confinement for a one-year term somehow led the jury to impose a larger sentence. The judge’s response set forth above is awkward since he was obviously trying to examine the instruction as he responded. However, taken as a whole, his statement does not vary from the instructions given the jury. The statement is a correct statement of the law and could not have misled the jury. This is particularly so since the jury was required, by the form of verdict, to write out the sentence from alternatives furnished. The second alternative was the one year, county jail option without fine, and the third alternative was a term of imprisonment and a fine, which the jury imposed. The jury could not have written its verdict as it did without being aware of the option of assessing punishment in the county jail. The trial court had told the jury that it depended upon the alternative they selected as to the place of confinement. When the court’s response to the jurors’ questions is a correct statement of law and does not confuse or mislead them, no error is shown. See State v. Goree, 672 S.W.2d 369 (Mo.App.1984).

The trial court’s response to the question concerning consecutive and concurrent sentences was correct and very much like a similar response in State v. Duisen, 428 S.W.2d 169 (Mo. banc 1967). As the Goree court said, it “does not parrot that given in Duisen [but] it states the same principle which we find neither misleading or confusing.” 672 S.W.2d at 370. The response concerning parole is controlled by Duisen.

There is no error in the context of this case, but it bears repeating that what has occurred here demonstrates the potential for error when the trial judge attempts an oral question and answer session with the jury.

Neal next asserts there was insufficient evidence to convict him of conspiracy to commit arson. Where sufficiency of the evidence is questioned, everything must be considered in a light most favorable to the verdict and all inferences and evidence to the contrary must be ignored. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983).

Because he had no matches when he was apprehended and he and Madison were arguing in the alley, Neal contends there is no evidence of an agreement to commit arson. His arguments are inapposite. While no matches were found on Neal, it is not to say his cohort, Madison, had none at the time. Likewise, the argument between the two men in the alley did not focus on whether to throw the Molotov cocktails but rather on where to throw them. The evidence taken in its most favorable intendment showed that Neal and Madison were in the alley on May 19 and intended to use the firebombs. Chief Crowell recognized Madison’s face and voice when the men were in the alley. While he did not then recognize the second man, 12-15 minutes later and only 3-4 blocks away, Crowell and his deputy apprehended Neal who was with Madison after the two had fled from the officers. Crowell later identified Neal as the second man in the alley because Neal often “ran with” Madison, he had seen them together earlier in the evening, Neal’s height and build were very similar to that of the second man, Neal and the second man were wearing similar stocking caps, and, when apprehended in Madison’s presence, Neal’s clothes and the gloves he was wearing reeked of gasoline. That the two men agreed to commit arson was established by their statements, overheard by Crowell, about where to throw the bottles, and the three bottles themselves, which Crowell found in the alley after the men had left and which had not been there on his two previous passes through the alley. This evidence is sufficient to sustain the verdict.

Finally, Neal argues that the court’s failure to define, sua sponte, “explosive weapon” in Count II was prejudicial error. While this point need not be reviewed, as Neal failed to set forth the desired instruction, State v. Lehman, 634 S.W.2d 542, 545 (Mo.App.1982); Rule 30.06(e), to eliminate further contention, it will be considered. A common word that can be generally understood and has no specialized meaning need not be defined unless a party so requests, State v. Goodman, 490 S.W.2d 86, 87 (Mo.1973) or MAI-CR2d so requires. State v. Moland, 626 S.W.2d 368, 372 (Mo.1982). Under Count II, Neal was charged and convicted of the unlawful possession of an “explosive weapon,” Section 571.020.1(1) RSMo Supp.1984, or “incendiary firebomb adapted to inflict substantial property damage.” Section 571.010(4) RSMo Supp.1984 defines an explosive weapon as “... any explosive, incendiary, or poison gas bomb or similar device designed or adapted for the purpose of inflicting death, serious physical injury, or substantial property damage; or any device designed or adapted for delivering or shooting such a weapon.”

The term “explosive weapon” when used in reference to the devices shown in evidence is easily understood and need not be defined. The jurors would surely have known that beer bottles filled with gasoline-soaked rags were “incendiary” bombs or “similar device[s].” They clearly fit within the definition of “explosive weapon” and thus the term need not have been defined. Affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Harold C. MEDLOCK, Appellant.
    No. WD 35765.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    John B. Newberry and Daniel W. Imhof, Springfield, for appellant.
    John Ashcroft, Atty. Gen., and Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Appeal from bench trial conviction of a felony, manufacturing by growing marijuana, a controlled substance, Section 195.020.-1(1), RSMo (1978), and sentence to a four-year term of confinement.

Affirmed. Rule 30.25(b).


author: TURNAGE, Chief Judge.

text:
    Fred DAKIN, d/b/a Dakin Implement Co., Plaintiff-Respondent, v. Wendell O. GREER and Oral Ireta Greer, Defendants-Appellants.
    No. WD 35776.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

      John C. Milholland, Anderson & Milhol-land, Harrisonville, for defendants-appellants.
    Harold A. Kyser, Butler, for plaintiff-respondent.
    Before TURNAGE, C.J., MANFORD, J., and MESSINA, Sp.J.
   TURNAGE, Chief Judge.

Fred Dakin brought suit in small claims court against Wendell Greer and Oral, his wife, for $700 claimed to be due on the sale of a van. The small claims court entered judgment in favor of Dakin for $700. On trial de novo, the circuit court also entered judgment in favor of Dakin for $700.

On this appeal, the Greers contend they are entitled to judgment because Dakin filed suit on behalf of a partnership without naming all of the partners as parties, and because the $700 claim was included in a prior law suit. Reversed and remanded.

Fred Dakin, his wife Bertha, and son John were partners doing business as Da-kin Implement Company. On August 25, 1981, the Dakins and the Greers entered into a contract by which the Greers agreed to purchase the Dakin Implement Company. The business included an automobile franchise, an implement business, and various items of personal property. The Greers deposited $4,000 in escrow, and the contract provided that if the Greers failed to pay the balance of the purchase price, the Dakins would retain the $4,000 as liquidated damages.

On August 29, 1981, the Greers purchased an eleven passenger van from Da-kin Implement for $7,500. This van had not been included in the contract of sale for the business, but a van body had been included in the contract. Dakin wanted the van body back. Because he believed that the Greers would fulfill their contract and thus become the owners of the van body, he agreed to credit the Greers $700 on the van purchase in exchange for their returning the van body to him.

Subsequent to purchasing the van, the Greers defaulted on their contract to purchase the business, and the Dakins brought suit on the contract. The court dismissed this suit after it found that the Dakins were entitled to retain the $4,000 as liquidated damages, but were not entitled to additional damages.

Subsequent to the first suit, Fred Dakin brought this suit in small claims court as “Fred Dakin d/b/a Dakin Implement Co.” to recover the $700 he had credited to the Greers on their purchase of the van. Da-kin testified the partnership made the sale, and the pleading in this case alleges as much.

The Greers contend that the judgment should be reversed because all partners are necessary parties-plaintiff in an action to enforce an obligation due the partnership. The rule is stated in Wittels v. Dubinsky, 343 S.W.2d 644, 645[1] (Mo.App.1961):

The general rule relating to actions to enforce an obligation due to a partnership is that all partners are necessary parties-plaintiffs, and that a partner may not sue in his own name on a cause of action accruing to the partnership.

Anable v. McDonald Land & Mining Co., 144 Mo.App. 303, 312-13, 128 S.W. 38, 41 (1910), provides the rationale for this rule. Because one partner can release and satisfy a claim due the partnership, and could do so before or after suit were filed, it would be wholly unavailing to allow only one partner to file suit on a claim which a non-party partner could satisfy and thereby render the suit moot.

In 60 Am.Jur.2d Partnership § 325 (1972) it is stated:

Since partnership obligations in contracts are joint, and not joint and several, it is necessary, under common-law practice, that is, where partnerships cannot sue and be sued as such, that all the partners join as parties plaintiff in an action on a partnership obligation.

It is thus clear that one partner may not sue alone on an obligation due the partnership. To properly plead a cause of action, not only must the complaint state facts which demonstrate a right to relief, but the complaint must also show that a right of action is vested in the plaintiff, and the failure to plead facts showing a right of action in the plaintiff results in the petition failing to state a cause of action. Elmer v. Copeland, 141 S.W.2d 160, 164[4, 5] (Mo.App.1940), cert. quashed, State ex rel. Elmer v. Hughes, 347 Mo. 237, 146 S.W.2d 889 (1941); Justus v. Webb, 634 S.W.2d 567, 570 (Mo.App.1982). Here, Fred Dakin brought suit as “Fred Dakin d/b/a Dakin Implement Co.,” without pleading that the cause of action was vested in him alone. The evidence revealed that Dakin, his wife, and his son were the partners in Dakin Implement. Fred Dakin could not bring an action for an obligation due the partnership in his own name, and this resulted in the petition failing to state facts upon which relief could be granted.

The Greers raised the defense of failure to join all the partners as plaintiffs for the first time on appeal. Dakin contends that this defense cannot now be raised because it was not presented to the trial court. Rule 55.27(g)(2) provides that the defense of failure to state a claim upon which relief can be granted may be made on appeal. Thus, the defense that the petition did not state facts upon which relief could be granted can be raised for the first time in this court. Admittedly, this allows a party to sandbag the trial court, but the language of the rule is clear. The judgment must be reversed because the action was not brought in the names of all of the partners.

The Greers make further contentions which will arise if this case is retried. The Greers contend that the Dakins’ suit on the contract for the sale of the business was a final adjudication of Dakin’s claim for payment for the van body included in that contract. The contention is that the prior suit is res judicata as to any claim for any item of property that was included in the contract for the sale of the business, and since the van body was included in that contract, any action relating to payment for the van body is barred. The Greers also contend that the dismissal of the prior suit acted as an accord and satisfaction for any claim for the van body, and finally, that this suit constitutes splitting a cause of action. Inherent in these assertions is the theory that the Dakins’ retention of the $4,000 as liquidated damages on the contract for the sale of the business constituted payment to them for the van body. This theory misconstrues the parties’ rights upon the Greers’ default on the contract to purchase the business. A similar fact situation occurred in Martin v. Ficklin, 240 Mo.App. 1225, 227 S.W.2d 69 (1950). The parties entered into a contract for the sale of a grocery store and its stock of goods. The court stated that the down payment was regarded as liquidated damages if the buyer failed to perform his part of the contract. 240 Mo.App. at 1237, 227 S.W.2d at 76[1—7]. The buyer failed to perform, and the seller sold the store and stock of goods to a third party. 240 Mo.App. at 1238, 227 S.W.2d at 76[10, 11]. The buyer contended that the seller abandoned and rescinded their contract when he later sold the store to a third party. The court stated at 240 Mo.App. 1238, 227 S.W.2d 76, 77[10, 11]:

When a buyer refuses to conclude a contract of sale and repudiates it without fault on the seller’s part, under the circumstances here shown, the seller may treat the contract as at an end and may retain the property. In a cash sale, delivery and payment are concurrent, and without the payment, the title does not pass unless there is a waiver or laches on the seller’s part. Plaintiff’s later resale of the property did not affect, his action for payment of the check for the earnest money (citations omitted).

In this case, the circuit court took judicial notice of the petition and many of the exhibits in the Dakins’ suit to compel the Greers to perform the contract for the sale of the business. Nothing indicates a waiver or laches on the Dakins’ part which would prevent the title to the property agreed to be sold to remain with the Da-kins upon the Greers’ failure to perform. The liquidated damages flowing to the Da-kins were the damages for the Greers’ failure to perform their agreement. The payment of liquidated damages did not pass title to any property mentioned in the contract and as stated in Martin, the Da-kins retained title to all of such property when the Greers’ default operated to treat the contract as at an end. The liquidated damages were simply damages for the Greers’ breach, and did not in any way give the Greers any claim to any of the property agreed to be sold in the contract. That being the case, the payment of liquidated damages could not constitute res judicata or any other bar to the Dakins later claiming that the Greers still owed them $700 on the van sale.

At the time the van sale was made, Fred Dakin thought the Greers would own the van body once they had performed the contract to purchase the business. Upon the Greers’ default of that agreement, the Greers did not become the owners of the van body, and the Dakins had a claim against the Greers for the $700 allowance given for the van body. On retrial, none of the defenses raised on this appeal concerning res judicata, accord and satisfaction, or the splitting of a cause of action will be available to the Greers.

The judgment is reversed. This cause is remanded with leave to add the other two partners as parties-plaintiff and to amend the petition. See Justus, 634 S.W.2d at 570[12],

All concur.


text:
    Bobby R. FOREMAN and Katherine Foreman, Appellants, v. Paul BELL, Jr. and Barbara Jean Bell, Respondents.
    No. WD 35,840.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Loramel P. Shurtleff, Petri, Shurtleff & Froeschner, Columbia, for appellants.
    Robert J. Dierkes, Bear, Hines & Thomas, Columbia, for respondents.
    Before TURNAGE, C.J., and MAN-FORD, and LOWENSTEIN, JJ.
   ORDER

PER CURIAM:

Appeal from judgment entered on directed verdict in favor of defendants in action based on fraud and misrepresentation.

Affirmed. Rule 84.16(b).