author: PREWITT, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terri Kimm (Hood) BROWN, Defendant-Appellant.
    No. 13744.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 26, 1984.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ronald F. Fisk, Public Defender, Nevada, for defendant-appellant.
   PREWITT, Chief Judge.

Following jury trial, defendant was convicted of felony stealing and sentenced as a prior offender to four years’ imprisonment. She was identified by two witnesses as having taken a television set from a Wal-Mart Store in Nevada without the store’s consent.

On appeal she contends that the trial judge erred in refusing to allow a defense witness, Debra Butler, to testify that there was a person in Nevada “who looks exactly” like defendant. In the offer of proof Butler testified that the woman “looks so much like Terri, she has her nose and everything”. Butler said that the other person “could pass as Terri’s exact twin sister.” The asserted “twin” was identified at the hearing on the motion for a new trial as Lori McManis.

Butler said that the night before the trial she had seen McManis at a department store and a person with her had mistaken McManis for defendant. Butler said she “looked at her real good” and knew it wasn’t defendant. Butler knew the man that McManis was with.

The trial judge denied defendant’s offer because he believed if there was such a person she should have been brought into court. Defendant acknowledges that opinion testimony by a lay witness is ordinarily excluded at trial, but asserts that this was a situation where the witness had sufficient knowledge of the facts and subject matter that her opinion should have been allowed and that this evidence could not be effectively presented in any other manner.

At the hearing on the motion for new trial, McManis was present in the courtroom. The witnesses who had identified defendant at trial were separately brought into the courtroom with defendant and McManis present, and again identified defendant as having taken the television.

Miss McManis then testified that she had known the defendant for two years. She said that defendant also knew the man she was living with. She testified that she was five foot, six inches tall and weighed about 119 pounds. The trial court apparently took judicial notice of a statement given by defendant when she was arrested that she was five foot three inches tall and weighed 130 pounds.

“Opinions which witnesses form from observed facts are competent evidence only where it is impossible or impracticable to place the facts before the jury in such a way that the jury may draw its own conclusion from the facts.” Scott v. Scott, 612 S.W.2d 61, 63 (Mo.App.1981).

Where it is impossible or impractical to present only facts to the jury, relevant matters are often presented by opinion. In many instances practical considerations allow lay witnesses to testify to conclusions they make. An observer is permitted to state natural inferences from observed conditions or occurrences or the impression made on his mind by a number of connected facts whose detail cannot be placed before the jury. See Travelers Indemnity Co. v. Woods, 663 S.W.2d 392, 399 (Mo. App.1983); 32 C.J.S. Evidence, § 444, p. 56. Such evidence is often a “matter of necessity or expediency”. 2 Jones on Evidence § 404, p. 752 (5th ed. 1958).

Lay witnesses, as well as seemingly well-qualified experts often disagree on matters of opinion, perhaps misleading and confusing the fact finder. Where reasonably practical, the fact finder should be presented with facts, not opinions, and reach conclusions based on those facts.

Here opinion evidence was not required. The information sought to be shown could have been presented without it. The record indicates that McManis could have been brought to the trial. Debra Butler testified that she told defendant’s attorney of McManis “about a month” before the trial. Defendant had met McManis and defendant and Debra Butler knew the man McManis was living with. Butler saw them together the night before the trial commenced.

Whether one person resembles another sufficiently that persons could mistake them is a matter of opinion which can vary with each observer. Where such could be the case, every effort should be made to have the person before the jury.

We are not saying that opinion testimony of resemblance to another should never be allowed as that is not before us. We are holding that where the person sought to be compared to the defendant is available, he or she should be presented so the jury can be fully apprised and can make a determination as to whether or not the identifying witnesses could have been mistaken.

As it does not appear that there would have been any difficulty in presenting the jury with the better evidence, the person herself, we do not think the trial court abused its discretion in excluding the testimony offered.

The judgment is affirmed.

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


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, ex rel., Dave KOLB and Janet Kolb, Appellants, v. COUNTY COURT OF ST. CHARLES COUNTY, Missouri, et al., Respondents.
    No. 46836.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.

      William Randolph Weber, St. Charles, for appellants.
    Robert K. Spalding, Ballwin, Ellsworth Cundiff, Jr., Michael T. Londoff, St. Charles, for respondents.
   STEWART, Judge.

Dave and Janet Kolb appeal from a judgment of the circuit court upon a writ of certiorari to the St. Charles County Court which denied an amendment to the zoning map of St. Charles County.

The Kolbs seek to have 48.398 acres of land that they own rezoned from R-1A and Rl-B single family residential to M-l light industrial. This site is bounded on the north, east and west sides by single family residential zoning.

The deed to the property indicates that it was purchased by the Kolbs on July 29, 1980. Plaintiffs filed their application to amend the zoning map on March 4, 1981. Along with the application they submitted a legal description of the area to be rezoned, an outboundary survey, certificate of title, development plan and a list of property owners within 1000 feet of the property.

On March 30, 1981, a petition opposing the rezoning was filed by 60% of the property owners listed in petitioners’ application as being within 1000 feet of the property proposed to be rezoned. A public hearing was had before the St. Charles County Planning & Zoning Commission with respect to the application. At the hearing the only person heard on behalf of the Kolbs was their counsel. Counsel made a statement describing the location of the property and stated that there was some light industrial property to the south. Two of the plots were owned by the Kolbs. The Kolbs would build an industrial park on the rezoned property. He described the road and sewer systems that his clients proposed to construct. Counsel also displayed photographs.

Ten persons who opposed the change in zoning testified to the general effect that they owned homes in the area and that when they purchased the homes they relied upon the residential zoning of the area; that the change in zoning would reduce the value of their homes, and that certain of these properties would be more susceptible to flooding if an industrial park were to be built on the subject property.

The planning and zoning commission approved the zoning change at a meeting in May of 1981.

Because more than 20% of the owners of property within 1000 feet of the property to the left, to the right or of the property directly opposite or in the rear of the property proposed to be rezoned filed a protest it was necessary for the county court to give its unanimous approval in accordance with § 64.670 RSMo 1978.

The county court denied the application to rezone the property with two of its members voting to approve the application to amend the zoning map and one voting to deny the application. Other facts necessary to our determination will be set out hereafter.

Kolbs obtained review of the decision by way of writ of certiorari in the circuit court § 64.660.2 RSMo 1978. After a hearing the court adjudged the action of the St. Charles County Court to be “proper and lawful and that it had in fact denied the rezoning request.”

The Kolbs urge reversal because of errors of the trial court in the exclusion of the testimony of a professional engineer as to the highest and best use of their property; the exclusion of the testimony of the members of the county court explaining the

reasons for their vote on the proposed zoning change; the exclusion of the minutes of the hearings and an exhibit with respect to a prior application to change zoning of the same property; and the admission into evidence of the testimony of eleven home owners and the Planning Director of St. Charles County.

We begin our discussion with a few basic precepts. Zoning is a legislative function and a court upon review can only determine whether the legislative body exercised its power arbitrarily or unreasonably. Erigan Company, Inc. v. Town of Grantwood Village, 632 S.W.2d 495, 496 (Mo.App.1982). The person seeking the change or rezoning has the burden of presenting competent and substantial evidence of a public as well as a private need for the change in order to overcome the presumption of the validity of the action of the legislative body. Plaas v. Lehr, 538 S.W.2d 919, 921 (Mo.App.1976).

The reviewing tribunal must first determine whether the property owner’s evidence has overcome the presumption of the reasonableness of the present zoning and if so it must then consider the defendants’ evidence and determine if continuance of the present zoning is a fairly debatable issue. Despotis v. City of Sunset Hills, 619 S.W.2d 814, 820 (Mo.App. 1981).

We have concluded that the trial court could have found that there was no substantial evidence before the county court that would overcome the presumption of the reasonableness of the present zoning. Even if we were to consider the statement of counsel before the planning commission as evidence there was no showing that Kolbs would be injured by the refusal to rezone his property. The property was zoned residential when purchased a short time before they sought rezoning. Counsel informed the planning commission that a buffer would be maintained between most of the residential property and he described a road and sewer system that was planned. He further stated that there was some light industrial property to the south of the property sought to be rezoned. This would not be sufficient to require rezoning. Tea-lin v. City of Ladue, 541 S.W.2d 544, 549 (Mo. banc 1976).

Kolbs complain that the circuit court erred in denying the offer of proof and refusing to admit the evidence of a professional engineer whose evidence was obviously intended to supply the deficiencies of the hearing before the commission which was the basis for the ruling of the county court.

In determining whether the county court acted arbitrarily or capriciously the reviewing court must of necessity confine itself to a review of the evidence that was before the county court. The case is not to be tried de novo. The trial court was authorized to hear additional evidence only for the purposes of proving what evidence was before the county court or of proving any fact touching upon the legality of the hearing. State ex rel. Beacon Court v. Wind, et al., 309 S.W.2d 663, 666 (Mo.App.1958). The proposed testimony of the engineer did not. tend to prove that any particular evidence was before the county court. The testimony would serve only to develop his opinion that the highest and best use of the property would be light industrial. Evidence as to the highest and best use of a piece of property is relevant when determining the market value of that property upon condemnation. State, etc. v. Berkeley School District, 618 S.W.2d 195, 198 (Mo.App.1981). Zoning is pertinent to a property’s highest and best use to the extent that it may limit or encourage certain uses of the property. State, etc. v. Berkeley, supra. However, the highest and best use of a piece of property has no relevance in rezoning proceedings because there is no determination of value involved in the decision to rezone. Therefore, the engineer’s testimony would have no relevance before the county court. Nor would this evidence tend to prove any fact touching on the legality of the hearing before the county court. The trial court correctly ruled upon the offer of proof.

The Kolbs claim that the trial court erred in excluding the testimony of the judges of the county court who testified under an offer of proof with respect to the reasons for their vote. Kolbs’ objective was to show the motivation for the votes of the judges and particularly the judge who voted against the rezoning.

Zoning, as noted before is a legislative function and the courts will not inquire into the interests or motives of members of a legislative body when exercising legislative functions. Strandberg v. Kansas City, 415 S.W.2d 737, 742 (Mo.1967). There was no error in the exclusion of the testimony of the judges of the county court.

The Kolbs also contend that the court erred in excluding minutes of the meetings of the planning commission concerning a prior application for rezoning of the subject property.

The Kolbs offered to show that they had previously filed an application for rezoning which had been denied by the planning commission and desired to have the minutes of the meetings concerning that application introduced into evidence in the circuit court.

The record does not reflect any attempt on the part of Kolbs to have the county court consider the matter contained in the minutes. This is another attempt to have the issues considered by the county court tried anew by the reviewing court. The issue was properly ruled by the trial court. State ex rel. Beacon Court v. Wind, 309 S.W.2d at 666.

The Kolbs’ final point is that the trial court erred in admitting testimony of eleven of their witnesses elicited upon cross-examination by counsel for defendants. These witnesses were persons who had filed protests against the rezoning. The witnesses testified on cross-examination that they had title to property which was within 1000 feet of the frontage of the Kolb property.

It is Kolbs’ contention that there was no proof of a valid protest and therefore the unanimous approval of the county court was not required in approving an amendment to the zoning map.

The applicable statute requires the protest to be:

signed and acknowledged by the owners of twenty per cent of the frontage within one thousand feet to the right or left of the frontage proposed to be changed, or by the owners of twenty per cent of the frontage directly opposite, or directly in the rear of the frontage proposed to be altered, ...

It has been held that a protest that is signed but not acknowledged is invalid. Platte County v. Chipman, 512 S.W.2d 199, 205 (Mo.App.1974).

The regulations contained in the effective “Revised Zoning Order of St. Charles County of 1976” provides that the applicant for an amendment attach to his application “a list of all property owners within 1000 feet of the property to be rezoned.” The Kolbs did attach such a list containing the names of 42 property owners. The protests were signed and acknowledged by approximately 60% of the owners of property listed by Kolbs in their application. They cannot now claim that the persons named as owners of property within 1000 feet of their property in their application are not such owners. See Kelley v. Briggs, 290 S.W. 105, 107 (Mo.App.1927); M.E. Sayers v. Bagcraft Corporation of America, 597 S.W.2d 280, 282 (Mo.App.1980).

The applicants did not question the validity of the protest before the planning commission. They only tangentially attack the validity here by way of attacking the admission of the testimony of some of the protestors as being the only evidence on the issue and claiming that issue may not be tried de novo in the circuit court.

We are of the opinion that the reason for the rule announced in Kaesser v. Becker, 243 S.W. 346, 350 (Mo. banc 1922) with respect to referendum petitions is applicable here. If the protest upon its face meets the requirements of the statute it is prima facie, a valid protest and those that would question its validity have the burden of overcoming the prima facie validity of the protest.

In this case the Kolbs furnished the planning commission with the names of the property owners. The protest was “signed and acknowledged” by far more than 20% of the owners of property listed by the Kolbs in compliance with the terms of the statute. § 64.660 RSMo 1978. The protest was valid upon its face. There was no evidence produced to show that the protest was invalid in any respect. The testimony to which Kolbs object was mere sur-plusage and was not prejudicial.

The Kolbs also objected to the testimony of Mr. Lauer, an employee of the planning commissioners office. This testimony also concerned the protest petitions and what we have said respecting the last point also effectively disposes of this issue.

Judicial review of the county court’s decision not to rezone the Kolbs’ land is limited to determining whether the decision was authorized by law and supported by competent and substantial evidence upon the whole record. Lichte v. Heidlage, 536 S.W.2d 898, 899 (Mo.App.1976). In examining the record to determine if said decision was properly supported by the evidence we must view the record in a light most favorable to the findings of the tribunal. Murphy v. Board of Zoning, etc., 593 S.W.2d 549, 553 (Mo.App.1979).

In light of this standard of review and after consideration of the entire record we find that the county court’s decision was supported by competent and substantial evidence and the circuit court properly upheld said decision.

KELLY, P.J., and SNYDER, J„ concur.

      . See Piaos v. Lehr, 538 S.W.2d 919, 922 (Mo. App.1976).


author: HOGAN, Judge.

text:
    In re ESTATE OF Fred C. SCHUBERT, Deceased, Eugene M. White, Administrator d.b.n., Plaintiff-Appellant, v. Winston O. HOLLEMAN, Bonnie Schubert and Ivan Schubert, and Della Miller, Defendants-Respondents.
    No. 13252.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 1984.
    Marvin W. Opie, Versailles, for plaintiff-appellant.
    Tyce S. Smith, Sr., Smith & Sickal, Waynesville, for defendants-respondents Bonnie Schubert and Ivan Schubert.
   HOGAN, Judge.

Plaintiff Eugene M. White, administrator de bonis non of the Estate of Fred C. Schubert, deceased, has taken this appeal from an adverse judgment entered in a proceeding to discover assets under the provisions of § 473.340, RSMo 1978. The cause was heard in the probate division of the Circuit Court of Pulaski County in two sessions, one of which was held on December 16, 1981, the other on November 15, 1982. At the close of the second hearing, the trial court requested findings and conclusions from the attorneys representing defendants Holleman and Schubert. The proposed findings were filed and adopted verbatim by the trial court. They do not include nor directly refer to defendant Della Miller.

Section 473.340 had been amended when this action was commenced on August 3, 1981. Subsection 2 of the amended statute then provided, as material here, that:

“Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure....”

The plaintiff filed an eight-paragraph petition. The fifth paragraph of the petition avers, in material part, that plaintiff believed:

“... [T]hat said Defendants (including defendant Miller) have either acting individually or in concert together concealed or embezzled, or [are] otherwise unlawfully withholding [from the estate] certain personal property of the decedent, including but not limited to household furniture, equipment and fixtures, motor vehicles, firearms, merchandise, money’s [sic], and receipts from sale of merchandise.”

During the 2-day hearing, the trial court heard evidence from 15 witnesses; 20 exhibits were received. A 530-page transcript was developed. The record affirmatively shows that defendant Della Miller was served with process; she did not file an answer and did not appear. The want of an answer on her part was called to the attention of counsel for the plaintiff, who responded:

“I might say this, Your Honor, that Della Miller and Bonnie Schubert and Winston Holleman, the other defendants, were all residing in the same residence, building, or were operating the business of the deceased. So they would well know what her condition was or is. So we’ll get into that in the evidence, Your Honor....”

In the 11-month interval which elapsed between sessions, the plaintiff changed lawyers. At the commencement of the second hearing, the trial court called attention to defendant Miller’s absence. Present counsel for the plaintiff offered defendant Miller’s deposition; after some discussion, the deposition was received in evidence on the ground that defendant Miller was infirm and unable to attend the trial in person. The hearing then proceeded to its conclusion.

The “findings of fact and conclusions of law” were filed January 13, 1983, and January 27, 1983. These documents appear to have been intended by the trial court as a determination of the rights of the plaintiff as against defendants Schubert and Holleman; they show in intelligible language that the trial court intended to find all issues tendered for those defendants. They are therefore sufficient as judgments determining the rights of plaintiff and defendants Schubert and Holleman. Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 561, 98 S.W.2d 614, 616[4] (1936); Byrd v. Brown, 641 S.W.2d 163, 167 (Mo.App.1982). There is no such finding nor any docket entry determining the rights of the plaintiff as against defendant Miller.

As we have noted, defendant Miller did not answer; she did not appear personally, but her deposition was received as provided by Rule 57.07(a)(3)(B). Defendant Miller was therefore an active party to the action. Even though she filed no answer, the cause was tried as if she had, and on appeal an answer traversing the allegations of the petition must be considered as having been filed. State ex rel. Shartel v. Skinker, 324 Mo. 955, 965, 25 S.W.2d 472, 477 [12] (banc 1930); Crossland v. Admire, 149 Mo. 650, 656, 51 S.W. 463, 465 (1899); Bailey v. Bailey, 317 S.W.2d 630, 632 (Mo.App.1958). This is not to say that the rule requiring an answer is not mandatory; it is to say that enforcement of that mandatory provision is waived unless the opposing party invokes its enforcement by timely and proper action. Great Western Trading v. Mercantile Trust Co., 661 S.W.2d 40, 44[7, 8] (Mo.App.1983); St. Louis County v. St. Louis County Police Officer Ass’n, 652 S.W.2d 142, 145[4] (Mo.App.1983); Bailey v. Bailey, 317 S.W.2d at 632. Defendant Miller’s deposition was taken and received on the ground that she was infirm and unable to attend the trial in person, and her duties and rights as against the plaintiff administrator d.b.n. should have been adjudicated.

The rule is that an appealable judgment must be a final judgment and must ordinarily dispose of all parties and all issues in the case, unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular order as a final judgment for purposes of appeal. Hill v. Boles, 583 S.W.2d 141, 147[5] (Mo.banc 1979); State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231 (Mo. banc 1969); Dudeck v. Ellis, 376 S.W.2d 197, 204[3] (Mo.1964). This appeal is premature because the judgment does not dispose of defendant Della Miller; the submission must be set aside and the cause must be remanded, and accordingly it is so ordered.

MAUS, P.J., and PREWITT, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. William C. POOLE, Defendant-Appellant.
    No. 13380.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 1984.

      Donald R. Cooley, Springfield, for defendant-appellant.
    John Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

Defendant William C. Poole was convicted of manufacturing marijuana in violation of § 195.020.1, RSMo 1978, and his punishment was assessed at imprisonment for a term of 20 years. Defendant appeals, his sole contention being that there was no substantial evidence to support a finding of guilt.

The case was tried to the court without the intervention of a jury. Rule 27.01(b) provides that the finding of the trial court in a criminal case shall have the force and effect of the verdict of a jury. Therefore in determining the sufficiency of the evidence to support the finding of guilt, this court must accept as true all evidence in the record tending to prove the defendant’s guilt together with all inferences reasonably to be drawn therefrom and disregard all contrary evidence and inferences. State v. Giffin, 640 S.W.2d 128, 130[1, 2] (Mo.1982).

Cast in this light, the record shows that on September 15, 1982, federal, state and local officers discovered a sophisticated marijuana plantation on land known as the “Burney farm” 10 to 12 miles east of Marshfield in Webster County. Using a helicopter, the county sheriff flew close enough to the ground to be able to detect a 1½ acre planting of marijuana. Sheriff Fraker also caught sight of a man standing on the front porch of the farmhouse. The man was dressed in a white shirt and dark-colored trousers. The field of marijuana was discovered about 3 p.m.; about 3:30, the sheriff obtained a warrant to search the premises and returned to the Burney farm.

No one was found at the farm, although the farmhouse showed signs of recent occupancy; a television set was still operating in the farmhouse. There were several buildings on the farm. There was a dwelling house, a large barn about 60 feet east of the marijuana planting, a small “machine shed” and a hangar for an airplane. There was a well-worn footpath from the house to the barn and another from the barn to the marijuana plantation.

The plantation itself was enclosed by a barbed-wire fence. The growing area had been recently mulched. There was a pump in a nearby pond concealed by an overturned flat-bottomed boat. This pump drew water out of the pond and fed it into a thousand-gallon tank in the barn. Chemical fertilizer was added to the water in the tank, and the fertilizing solution was then drained into the growing field. Each plant was tagged; the tags bore identification numbers. Random samples were taken and the investigating officers then destroyed approximately 1,586 plants found in the plantation.

As proof of the defendant’s criminal agency, the State had evidence that the defendant had purchased and owned a distinctively marked Jeep Honcho. A Jeep Honcho is a species of pickup truck. This particular vehicle had an “unusual paint job, gold trim, gold wheels.” In late May or June, a Springfield police officer was investigating an unrelated narcotics case in the area of the marijuana plantation. Using a “spotting scope,” this officer observed the Jeep Honcho parked at the farmhouse near the place where the marijuana was planted. The officer described the vehicle he saw; it was undoubtedly the defendant’s vehicle.

Much of the evidence tending to prove the defendant’s participation in the crime came from two families named Clift who lived about ½ mile north or northwest of the Burney farm. The youngsters who testified are (apparently) the children of two brothers. Two of the Clift children— high school girls — were joggers; they often ran along a road near the Burney farm at night. One of these joggers, Cheryl Clift, saw the defendant’s vehicle parked on the Burney farm at various times “[ajbout all summer.” Cheryl’s cousin June testified she saw the Jeep Honcho on the Burney farm about once a week. On one occasion, June and her sister were jogging by the Burney farm with their dog; another dog came from the Burney farm and the two dogs started fighting. The defendant, who had been mowing the lawn in front of the Burney farmhouse, appeared and separated the two dogs. At least once, June Clift had seen the defendant driving the Jeep Honcho in the neighborhood.

As indicated, the intrusion of the police helicopter about 3 or 3:30 p.m. on September 15, 1982, flushed one man from his place of concealment near the marijuana plantation. Sheriff Fraker spotted a man standing on the porch in front of the Bur-ney farmhouse but was unable to identify him. The man was wearing a white T-shirt and dark trousers.

June Clift, whose residence was nearest the Burney farm, got off her school bus about 4 p.m. She saw a man in the field north of her house; he was alternately trotting and walking in a crouched position. June recognized this man as the person she had seen driving the Jeep Honcho, and as the man who had separated the two fighting dogs. The man walked away from the witness toward the other Clift residence, where he appeared shortly thereafter.

The defendant asked Tammy Humphrey —June’s married cousin — for a place to hide and requested that she call her uncle Orville. Orville was called but did not respond. There was evidence that this man, identified on trial as the defendant, was wearing a white T-shirt and brown trousers. At the defendant’s request, Mrs. Humphrey agreed to drive him to Springfield. Along the way, Mrs. Humphrey came upon Orville and a companion and the defendant decided to go on to Springfield with them. However, while the defendant was riding with Mrs. Humphrey, she heard him say: “There goes a half a million dollars down the drain” or words to that effect. Upon cross-examination, this witness was asked: “Would you repeat the statement that [the defendant] made while he was in your car [and] you were taking him ... toward Springfield?” She responded: “He said that there was money down the drain, [a] summer’s work.” Some time thereafter, the defendant was apprehended in Springfield and this prosecution followed.

Both counsel for the defendant and the Attorney-General invite comparison of the facts of this case to the facts of other cases involving the cultivation of marijuana. Admittedly such an approach permits one form of analysis but we decline to pursue it. A more convenient approach, which is at least as sound and as fair to the parties, is to consider the elements of the State’s case and ascertain whether the proof is sufficient to establish those elements beyond a reasonable doubt.

Section 195.017.2(4)(j) lists marijuana as a controlled substance, i.e., a substance which has: (a) high potential for abuse, and (b) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. Section 195.017.1(1) and (2). Section 195.020.1 denounces the manufacture of any controlled substance. Section 195.010(21) defines “manufacture” to include the “production” of any controlled substance; “production” is defined by § 195.010(30) and “includes the manufacture, planting, cultivation, growing, or harvesting of ... a controlled substance _” In State v. Netzer, 579 S.W.2d 170, 175-76 (Mo.App.1979), this court held that the offense of manufacturing marijuana consists of two elements: 1) causing the marijuana plants to have vegetal life and to encourage and promote their growth, with 2) an awareness of the character of the controlled substance. The second element may be established by reasonable inference. Netzer, 579 S.W.2d at 176[15]. If we take as a starting premise that in any criminal case the State must prove the corpus delicti and defendant’s criminal agency, see e.g., State v. Meidle, 202 S.W.2d 79, 81 (Mo.1947), it becomes clear from what we have recited that commission of the “corpus delicti,” i.e., the substantive offense, is clearly shown circumstantially; the defendant does not seriously contend otherwise. It is the defendant’s criminal agency which is the issue on this appeal.

To reiterate, the State is entitled to the benefit of all the evidence tending to prove the defendant’s guilt together with all reasonable inferences to be drawn therefrom. State v. Giffin, 640 S.W.2d at 130[1, 2], The rule is no different because the evidence of defendant’s agency is circumstantial. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969). This modestly-meant opinion is no place for the development of theories of the quantum of proof necessary to sustain a conviction on circumstantial evidence, and one adage will do as well as another. One such aphorism is that the presence of the defendant at the scene of the crime and his flight may be considered as indicia of guilt and will support conviction when coupled with other circumstantial evidence showing active participation in the offense. State v. Simmons, 494 S.W.2d 302, 305 (Mo.1973); State v. Harris, 602 S.W.2d 840, 845 (Mo.App.1980).

The defendant’s presence on the Burney farm was more or less continuous during the summer and early fall of 1982. Of course, the presence of defendant’s gaudily-painted pickup does not require the inference that he drove it from his residence to the marijuana plantation frequently during the entire growing season but such is a fair inference, one which the court as trier of fact was entitled to draw. Defendant’s headlong flight from the Bur-ney farm at the appearances of the police helicopter is also an evidentiary indication of his guilt. As far as the defendant’s admission of guilt is concerned, his spontaneous statement that a summer’s work had gone down the drain was at least as incul-patory as the species of admission made in Graybeal v. State, 13 Md.App. 557, 284 A.2d 37, 39 (1971), and others considered sufficient by courts adjudicating the sufficiency of the evidence to sustain conviction under statutes similar to ours. The judgment of conviction is affirmed.

MAUS, P.J., and PREWITT, J., concur.

      . References to statutes and rules are to RSMo 1978, V.A.M.S. and V.A.M.R.


author: HOGAN, Presiding Judge.

text:
    Greg BRAZEAL, Plaintiff-Respondent, v. Odis CRAIG, d/b/a Plaza Garage, Defendant-Appellant.
    No. 13392.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 1984.

      Charles A. Moon, Springfield, for defendant-appellant.
    Greg Brazeal, pro se.
   HOGAN, Presiding Judge.

This case originated in small claims court and comes here on appeal after trial de novo in the Greene County Circuit Court. Plaintiff’s theory, as nearly as we can make it out, was that the defendant sold him a “used” transmission, representing it to be a “rebuilt” transmission. Plaintiff, who is not a lawyer, has recovered the sum of $350 and the defendant now appeals. We review the case as provided by Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

In small claims court plaintiff’s theory of the case was based (apparently) upon an implied warranty arising from trade usage; we are not advised precisely what the difference between a “used” and “rebuilt” transmission is, but plaintiff’s claim was that the defendant sold and installed a secondhand transmission in his 1977 Buick “[which] never worked properly and was returned on two occasions. It went out completely on April 12, 1982.” Plaintiff had evidence from a mechanic who eventually repaired his automobile as follows:

“Q. You didn’t know how long [the transmission had] been in [plaintiff’s vehicle]?
A. No, sir.
sjc Jjc ⅜ # ⅝ ⅜
Q. Did you — If you’d known that, would you have changed your opinion as to what you’re testifying [to] today?
A. No, sir, because there ain’t no way that water and rust can get in [a transmission] and be in there if there’s oil in it.
Q. What if it had been there eight months?
A. Well, that wouldn’t make no difference if [the transmission had been in the vehicle] 25 years.
$ $ sfc sjc ⅜ ⅝
Q. How does water get in the transmission?
A. It was in there whenever they put it in. I said it was a used transmission. It’s been setting in a salvage yard with the filter tube out and the water and stuff in it, and the pan wasn’t taken off and cleaned, and it was in there when it was put in, and it stayed in there.”
* * * ⅜ * *

There was a good deal of evidence to the contrary, but the trial court stated that it relied on the evidence we have recited. Contrary to defendant’s position, this court has held that § 400.2-314, RSMo 1978, extends an implied warranty of merchantability to used or secondhand automobiles, Worthey v. Specialty Foam Products, Inc., 591 S.W.2d 145 (Mo.App.1979), and we suppose that warranty extends to used or secondhand major mechanical components of an automobile. Plaintiff’s proof was sufficient to show not only that the transmission had not been reconditioned, but was not merchantable. The judgment is affirmed pursuant to Rule 84.16(b).

PREWITT, C.J., and MAUS and CROW, JJ., concur.


text:
    Addie ATKINS and Tommy Atkins, Plaintiffs-Appellants, v. CITY FINANCE COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 31, 1984.
    Application for Permission to Appeal Denied by Supreme Court Oct. 29, 1984.
    Lewis K. Garrison, Memphis, for plaintiffs-appellants.
    Jerry 0. Potter and Robert Mark Field, Memphis, for defendant-appellee.
   NEARN, Presiding Judge, Western Section.

This is a “slip and fall” case in which the Trial Judge directed a verdict at the close of all the proof. Plaintiffs are Addie Atkins, who fell, and her husband, who sued in a derivative action for loss of consortium, etc. Plaintiffs appeal.

The only issue is whether there is any material evidence in the record that would present a jury issue as to defendant’s alleged liability. In reviewing the issue on appeal, our duty is the same as that of the Trial Judge, that is, we “must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial judge’s action may be sustained only if there is no material evidence in the record that would support a verdict for the plaintiff, under any of the theories that he has advanced.” Cecil vs. Hardin, (1978 Tenn.) 575 S.W.2d 268 at 270.

If no such evidence is found, the Trial Judge was correct in his action and we must affirm.

The plaintiff testified that she went to the defendant’s business on the day of the accident, accompanied by her husband, to pay off an account. As she entered the business, she approached the counter where the payments were received. It is undisputed that no one but the plaintiff’s husband was on the same side of the counter as she was. She testified that she transacted all of her business there, got a receipt, turned to leave and as she did, her foot got caught on a plastic runner that was on the floor and she fell, sustaining injuries. She testified that she had noticed the plastic runner when she entered the building, but apparently noticed nothing odd about it. Her husband’s testimony corroborates the plaintiff's in that he did not notice anything odd about the runner prior to the accident, but did notice that it was turned up three to four inches when her foot got caught on it.

The defendant’s witnesses testified that the plaintiff came into the business, but did not stay at the counter; that she had to go to a booth behind the counter to transact her business and that when she was leaving, she took three to four steps away from the counter area and seemed to collapse.

There was some dispute over the exact position of the runner in relation to the counter and the door. Plaintiffs’ proof contends it to be in one position and defendant’s in another. We deem such dispute to be immaterial in view of the fact that the plaintiff saw it wherever it was exactly located before she fell.

Viewing the proof in the manner required by Cecil vs. Hardin, supra, we find that a jury could find that at the time plaintiff caught her foot in the runner it was turned up three to four inches. However, such finding will not permit plaintiff a recovery. An essential element of plaintiff’s proof is missing. When a plaintiff is suing a business for personal injuries caused by a defective condition on the business premises, the plaintiff must prove that the defendant created the condition or had or should have had notice of the defective condition that caused the injury and such fact can be shown by circumstantial evidence. Stringer vs. Cooper, (1972 Tenn. App.W.S.) 486 S.W.2d 751.

The plaintiff in the case at bar has made no showing at all that the defendant had or should have had notice of the defective condition. There was no showing that the defendant caused the defective condition. There was no proof of circumstances that would put defendant on notice of the condition that allegedly caused plaintiff’s injuries. A store owner is not an insurer and does not insure a customer against injury caused by conditions created by others of which he has no notice or has not had a reasonable time to discover. McCormick vs. Waters, (1980 Tenn.) 594 S.W.2d 385.

Therefore, we must affirm the Trial Court’s action in directing the verdict for the defendant. Costs of this appeal are assessed against the appellants.

Done in Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

HIGHERS, J. and McLEMORE, Special Judge, concur.


text:
    Naomi LANCASTER, Individually and as Representative of the Statutory Beneficiaries of Sandra Lancaster, Deceased, Plaintiff-Appellant v. NAKANISHI CONVEYORS CO., LTD. and Nakanishi Metal Works Co., Ltd., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Aug. 23, 1984.
    Application for Permission to Appeal Denied by Supreme Court Nov. 5, 1984.
    Mary E. Chrisman and B.J. Wade, Memphis, for plaintiff-appellant.
    J. Alan Hanover, James B. Jalenak and James R. Newsom, III, Memphis, for defendants-appellees.
   NEARN, Presiding Judge, Western Section.

Plaintiff’s intestate was fatally shocked when her hand came into contact with a high voltage component of a microwave oven while working at her place of employment, Sharp Manufacturing Company, which company manufactures microwave ovens. Suit was filed in negligence against the manufacturer of a microwave component, the designer of the microwave oven and the manufacturer of the conveyor system upon which the microwave oven traveled as it was being worked upon. Defendant Nakanishi is the manufacturer of the conveyor system. Nakanishi was dismissed from the suit on their motion for summary judgment and a Rule 9 application for interlocutory appeal from that order was made to, and granted by, this Court to review the action of the Trial Judge. The other defendants are of no concern to this Court at this time and we deal only with the summary judgment motion of Nakanishi.

In short, the complaint alleges that Nakanishi, with knowledge of the uses that were to be made of its product, designed and manufactured an unsafe and dangerous conveyor system. Nakanishi admitted in its answer that it “participated in the design and manufacturer of the conveyor.” One who designs and manufacturers a product with knowledge of the uses to be made thereof is under a duty to produce a reasonably safe product. Ellithorpe vs. Ford Motor Co., (1973 Tenn.) 503 S.W.2d 516. At this state of the proceedings, such admission is sufficient to keep Nakanishi in the case, provided there is not some undisputed question of fact presented by the record that relieves Nakanishi of its duty or shows that such duty has been met.

Prior to a discussion of the law involved, we believe a better understanding of our treatment of this appeal requires that some of the undisputed facts and circumstances regarding the fatal occurrence be briefly set forth. The conveyor system is a standing type table-high U shaped conveyor. Items are placed at one end on a top consisting of a series of rollers and are shoved along the top by employees who perform various tasks on the item as it is moved down the line. As far as we can tell from the record, employees work on both sides of the U shaped conveyor. The conveyor system contains at various places electrical receptacles that permit the worker to plug in the cord of any electrical appliance proceeding down the line in order that the appliance be energized whenever necessary to ascertain whether or not the appliance is performing satisfactorily.

The deceased crossed from the side of the conveyor system to which she was assigned to the other side and while engaged in conversation with a fellow employee caused her hand to come into contact with that part of an energized microwave oven containing an open high voltage wire. That contact proved fatal.

The defendant relied upon the discovery deposition and affidavits of two expert engineers. One, in material part, swore as follows:

There was nothing defective about the wiring in the conveyor, as it was properly grounded and was properly protected by a safety circuit breaker system known as a ground fault interrupter which would have disengaged the power had any fault occurred in the electrical wiring system in the conveyor. The fatal shock which was received by the deceased was a result of her having touched high voltage wiring in the exposed cabinet of the microwave oven, and she would have been fatally shocked had she touched the chassis of the microwave oven and the terminal at the same time. In other words, had this microwave oven been sitting on a wooden table or suspended in midair without the presence of the conveyor, which was not defective in any way that I could see, Ms. Lancaster would have received the fatal shock of electricity in all events under the above circumstances. Although the conveyor system was grounded as it should have been for proper safety precautions, since current leakage would have made the entire conveyor dangerous had it not been properly grounded, the microwave chassis itself was also grounded through its cord, so that it would have made no difference under the circumstances which she touched.

The other expert also gave evidence to the effect that there was nothing wrong with the electrical design of the conveyor belt and that it was properly electrically designed.

An expert for the plaintiff swore that the conveyor belt should not have been grounded and that if it had not been grounded, the deceased would not have been killed.

Therefore, the record discloses a disputed issue of fact on that point.

The contract between the employee and Nakanishi provided in part as follows:

NAKANISHI acknowledges that the EQUIPMENT is intended for use in SHARP’S production of consumer electronic product, including television receivers and microwave ovens, and warrants that the EQUIPMENT is fit for its intended use and that the services set forth in Paragraph 1 of this MEMORANDUM will be performed with due care.

The plaintiffs expert witness swore that since Nakanishi knew of the uses to be made of the conveyor system (microwave oven testing and that such units would be energized because the conveyor contained facilities for plugging in appliances) he was of the opinion that good engineering practice required that the conveyor system be designed with “safety shields” so that a worker could not come into contact with the exposed high voltage wires of a microwave oven. We do not find this testimony to be contradicted by defendant’s experts. Their testimony is principally directed to the wiring system of the conveyor.

However, the Trial Judge found that under the record as a matter of law theré was no duty on the defendant to protect the plaintiff. We believe the EUithorpe, supra, case holds otherwise. We therefore must reverse and remand the case for further proceedings.

Costs of this appeal are assessed against the appellees.

Done in Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and HIGHERS, JJ., concur.


text:
    Morris CROCKER, Plaintiff-Appellee v. Anne H. SCHNEIDER, Baxter H. Turnage, Jr., and Confederated Housing Associates, Inc., Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 28, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      W. Emmett Marston and J. Philip Jones, Memphis, for defendants-appellants.
    Whit LaFon and David Hardee, Jackson, for plaintiff-appellee.
   NEARN, Presiding Judge, Western Section.

Plaintiff filed suit to have certain agreements declared void on the grounds that they were entered into under economic duress, to have certain funds being held in escrow declared to be the funds of the plaintiff and for recovery of monetary losses suffered. The Chancellor found for the plaintiff and awarded the escrow fund to the plaintiff as well as a recovery for monetary loss.

Plaintiff was the majority stockholder of the corporation which owned the property formerly known as the New Southern Hotel located in Jackson, Madison County. He also operates Morris Crocker Construction Company. The defendant Anne Schneider is no longer a party to this litigation as she was only the escrow agent or stakeholder and has paid the funds she held into the registry of the Court and has been dismissed. The defendant, Baxter H. Turnage, Jr., is in the construction business and is the owner of Confederated Housing Associates, Inc., his alter ego. Therefore, in the course of this opinion, the term “defendant” shall mean Baxter H. Turnage, Jr.

The defendant-appellant states the issues on appeal to be:

I. Did plaintiff-appellee, Morris Crock-er, sign a February 15, 1978, agreement and a June, 1978, escrow agreement under wrongful or illegal duress caused by defendant-appellant Baxter H. Turnage, Jr.?
II. Did plaintiff-appellee, Morris Crock-er, ratify the written agreements and is he therefore estopped from asserting duress and denying their validity?

The plaintiff-appellee does not contend that the issues are otherwise.

The undisputed facts are that plaintiff and defendant met sometime in the year 1975 to discuss the possibility of obtaining funds for the renovation of the New Southern Hotel. For a number of years the New Southern Hotel had not been operated on a profitable basis. Previously, plaintiff had made an unsuccessful attempt to obtain financing through a government agency for rehabilitation of the hotel. The plaintiff knew that defendant had certain expertise in the field of government financing as the defendant had previously constructed and handled projects financed through government funds. It is further undisputed that after several meetings it was agreed that the two would form a joint venture or partnership to obtain funds for the New Southern Hotel “project.” As will later be seen, a principal dispute is over the meaning of the word “project.”

There is no dispute over the fact that the defendant met with government officials and did the necessary paper work with the assistance of the plaintiff to present a feasible financial “package” and plan to government officials to obtain what is termed a Section 8 H.U.D. loan. The defendant did all that was required in this area, and plaintiff has no complaint regarding defendant’s efforts.

The defendant had prior successful relations with the government agencies in such matters, and the parties decided that plaintiff and defendant should be shown as “cosponsors” of the project. In order to obtain financing, co-sponsors were required to have an interest in the property sought to be improved. Therefore, plaintiff gave defendant an option to purchase the New Southern Hotel for $250,000.00. No payment was made for the option, but it evidently satisfied government regulations regarding ownership. The plan was that the New Southern Hotel would be converted into a Senior Citizen facility with low rents to be financed by the government agency with the owner(s) furnishing the land and building. Applications to government agencies were initially made in the name of defendant.

The “co-sponsors” also planned to have the New Southern syndicated as a limited partnership; the plaintiff and defendant were to be the general partners and limited partnership interests would be sold to others. Under this procedure the old New Southern Motor Hotel, Inc., when converted, would be sold to the limited partnership and out of the proceeds received from those partnership interests, plaintiff would receive $250,000.00 for the hotel land and building and any overage from this syndication would be split by plaintiff and defendant. Plaintiff was also to be the general contractor on the renovation work and would receive payment for his work from the government loan. All agreements between plaintiff and defendant to this point were oral.

Several months before the construction loan was to be closed, the governmental agency indicated to the “co-sponsors” that the presence of the defendant as a “sponsor” violated their guidelines as the defendant was also a sponsor of other projects (none of which involved the plaintiff) and the number of units in which the defendant was involved exceeded their loan policy. Accordingly, both were notified that unless the defendant was removed as a sponsor, the loan would not close. It was at this time that the defendant began to insist that their agreement be reduced to writing.

The day of the construction loan closing, the plaintiff signed an agreement with defendant which provided that it superceded all prior agreements, provided that defendant would no longer be considered a sponsor of the project and waived all rights he had in it for the payment of $59,188.00, to be paid to defendant by plaintiff at the final settlement of the project twenty-two months later. In order to secure this payment, plaintiff signed an escrow agreement between the escrow agent, plaintiff, defendant, and the limited partnership that provided the manner by which the proceeds of the sale of the partnerships were to be distributed. At the final closing of the project, when the funds were paid in by the limited partners, the plaintiff sought and was granted an injunction restraining the escrow agent from paying to the defendant the amount provided for in the escrow agreement. All other parties, including the plaintiff but excluding the defendant, received their share as provided in the escrow agreement. The defendant’s share was paid into Court as mentioned above.

The Chancellor in part found:

From all of the proof, and the Court does not really understand why, the defendant had gained a dominant position in the fiduciary relationship between the parties. It appears that while both parties are experts in the handling of Federal housing projects, in this particular venture, the defendant was handling the paper and financial connections, and the plaintiff was handling the actual construction of the project.
In such a situation, a presumption arises that where a party in the dominant position receives benefits, that an improper advantage was taken. Any such presumption and invalidity of such transaction has to be overcome by clear and convincing proof. It may become practice in these types endeavors where one side is guaranteed a considerable profit with no consideration, and the other party assumes all the liabilities.
After the construction loan was closed, the plaintiff was asked to enter into an escrow agreement which would guarantee the defendant his funds, the plaintiff refused at first, but facing the same identical facts that faced him at the loan closing, the plaintiff signed the escrow agreement.
Subsequent to all the closings and when the parties realized that a tremendous loss had been suffered, the plaintiff attempted to have the defendant pay the escrow money toward the losses on the venture. The defendant refused. The plaintiff, according to the complaint, lost $80,479.00, and the total loss on the venture itself was $517,168.00.

We respectfully disagree with the Chancellor and find that the evidence preponderates against his material findings and that his conclusions are, therefore, in error.

The Chancellor candidly stated that the defendant had gained a dominant position for reasons unknown to the Court. We, too, are unable to find a reason, but further find that no such dominant position existed.

Up until the time that the governmental agency required the removal of defendant’s interest in the project, the parties were operating under an oral agreement, but because of circumstances each was more or less in equal control of the situation. Before the written agreement was executed, the New Southern was titled in the name of plaintiff’s corporation, plaintiff’s building corporation was the government-approved building corporation and plaintiff was listed as a co-sponsor of the project. The defendant was listed as a co-sponsor and, as such, could contemplate having some control over final disbursements of funds. Further, it is admitted that under the oral agreement both were to have been general partners in the limited partnership syndication to be formed upon completion of the project.

It was only when the government agency insisted that defendant be removed as a sponsor of the project that any real inequality began to appear. With the defendant’s name removed from the project, complete control would fall to the plaintiff, leaving the defendant with only an oral agreement with the plaintiff as security for the work he had performed under that oral agreement. Therefore, defendant insisted that the agreement be reduced to writing and his interest be spelled out. In short, circumstances beyond his control had placed defendant “in a bind.”

On the other hand, plaintiff’s dilemma was that if defendant was not removed from the project, the construction loan would not close, the deal would fall through and plaintiff would face possible financial ruin. The requirement of the lender that defendant withdraw as co-sponsor had placed both parties “in a bind.” This being true, we do not believe the presumption indulged in by the Chancellor of the defendant’s dominant position has ever arisen.

Under these circumstances, the defendant had an instrument prepared in which, for a stipulated sum, he waived all his interest in the project including his right to be a co-sponsor of the project and a general partner in the limited partnership syndication. This sum was arrived at by an estimation of the profits derived from the project. This agreement was delivered to plaintiff who considered it for several months but did not sign it. As the day for the closing of the construction loan drew near, defendant advised plaintiff that if he did not sign the agreement that he, the defendant, would do all he could to stop the loan closing.

Plaintiff’s case for “duress” is built upon this admitted statement of the defendant. We hold that under the facts this is not a case of “economic duress.”

Economic duress has been defined as: imposition, oppression, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another; the theory under which relief is granted being that the party profiting thereby has received money, property or other advantage, which in equity and good conscience he ought not to be permitted to retain. Johnson v. Ford, (1922) 147 Tenn. [(20 Thompson)] 63, 92-93, 245 S.W. 531, 539 (quoting Rees v. Schmits, 164 Ill.App. 250, 258 (1911)) and, more succinctly, as: “an involuntary payment made necessary by the fraud and bad faith of the defendants.” 147 Tenn. at 96.

This case fails of those requirements. First, it as admitted that defendant was not the party imposing the requirement that defendant be disassociated from the project. Second, it is further admitted that had defendant not disassociated himself from the project, the construction loan would not have closed. Defendant’s so called “threat” was meaningless. Had he said nothing to the government agency and, in fact, attempted to assist in the construction loan closing, it would have been of no avail — because it is admitted that, regardless of any action taken by defendant, the loan would not have closed as long as defendant was associated with the project. This situation was not caused by defendant. Further, both parties admit an oral agreement. There is certainly nothing wrong in insisting that an oral agreement be reduced to writing. Defendant had every right to insist upon his legal right. The insistence of one party on a written agreement does not constitute an undue advantage.

Of course, duress or not, no one has the right to insist upon reducing to writing that which was not agreed upon. This brings us to the context of the oral agreement. The defendant’s position was that all profits from the “project” were to be split fifty-fifty and that, in fact, there were no losses. The defendant defined the “project” as the obtaining of the construction loan and the syndication and sale of the limited partnership. Assuming that the construction loan was obtained, that the limited partnership syndication was accomplished, by which the limited partners would purchase from plaintiff the Senior Citizen facility for a sum in excess of the $250,000.00 value of the hotel, and that the amount due the construction contractor (plaintiff) and loan commitment expenses and other incidental expenses were paid, there could be no loss. In fact, the limited partnership did pay in excess of those figures. Therefore, when defendant was forced to withdraw, defendant computed the estimated excess and, in the written agreement, agreed to withdraw in return for 50% of that amount.

In our examination of the record we find the plaintiff’s testimony on the subject of the oral agreement to be ambivalent and, in some instances, contradictory and implausible. In comparison, the defendant’s testimony in that regard is clear, cogent and convincing. We believe the plaintiff contends that the “project” was to be a joint venture with everything, profits and losses, to be split fifty-fifty, including all losses suffered by plaintiff from the operation of his hotel. The plaintiff insisted that there were no profits because he lost money on the operation of the hotel both before and during the construction period (just as he always had), and that he lost money on the construction work because of either delays or underbidding on his part.

Under plaintiff’s theory of the oral agreement, the “project” consisted of the limited partnership, the hotel and the construction contract. The proof shows, however, that defendant had nothing to do with either the construction rehabilitation work or the operation of the hotel. Yet, plaintiff wants the defendant to share in his operational losses on the hotel as well as his construction losses, contending that that was part of their oral agreement. Those operational losses that plaintiff has charged to defendant include over $30,-000.00 in back taxes owed on the hotel. Further, plaintiff never offered to give a warranty deed to defendant for a one-half interest in the hotel, which he would certainly have been entitled to under the agreement espoused by the plaintiff. The only thing plaintiff gave to defendant was an option to buy the hotel at its full value. That is certainly inconsistent with 50% ownership. There are other inconsistencies and implausibilities, but we see no need to dwell on this point. In addition, it is undisputed that when defendant submitted the written agreement, plaintiff made no counter offer or ever even stated to the defendant that the agreement was not correct. We find the oral agreement as that contended by the defendant.

If we are wrong in our findings on the oral agreement, we would still reverse the decree below on the grounds that plaintiff is estopped to claim duress because he ratified the agreement. For twenty-two months after the alleged “duress,” plaintiff chose to operate under the written agreement. In fact, the proof shows that prior to the signing of the agreement, plaintiff began the syndication of the limited partnership, making himself the sole general partner. Plaintiff operated as the sole sponsor and sole owner of the project. Some five months after the written agreement was signed, an escrow agreement was prepared by one of plaintiffs lawyers, providing for payment to defendant of the previously agreed upon amount from the syndication closing. Prior to signing it, plaintiff voiced no objection, but maintained at trial that he was under the same financial pressure or duress as had existed when he signed the original agreement. We have found that no such duress existed originally, and the same certainly did not exist after the closing of the construction loan. It was not until just before the day of the final syndication closing that he Went to court to obtain an injunction barring defendant from receiving payment under the escrow agreement. We hold that the signing of the escrow agreement ratified the previous agreement. See Russell v. Zanone, (1966 W.S.) 55 Tenn.App. 690, 703, 404 S.W.2d 539, at 544-45 (quoting Landreth v. Schevenel, (1899) 102 Tenn. 486, 493 52 S.W. 148, 149.)

The Chancellor held that plaintiff was entitled to the escrow funds agreed to be paid to defendant. In addition, he held defendant liable for approximately 50% of hotel and construction losses suffered by plaintiff, yet awarded no interest in the project to defendant. Such decree is inconsistent with plaintiffs theory in our view. If defendant was to share in all losses, he should also share in all profits or interests. As it stands, plaintiff has an interest in the limited partnership and, under the decree, the defendant has none but pays one-half the losses. We accordingly must reverse.

We hold that the written agreement and escrow agreements are binding on the plaintiff and that defendant is entitled to the funds held in escrow for him. Further, the defendant is not liable for operating and construction losses as contended by plaintiff.

The costs of appeal are adjudged against appellee and the cause remanded for any necessary proceedings for the enforcement of the judgment of this Court.

Done at Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

CRAWFORD and HIGHERS, JJ., concur.


author: LEWIS, Judge.

text:
    THOMPSON & GREEN MACHINERY CO., INC., Plaintiff-Appellant, v. MUSIC CITY LUMBER COMPANY, INC.; Music City Sawmill Co., Inc., and Joseph E. Walker, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Oct. 17, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      Mark H. Westlake, Tune, Entrekin & White, Nashville, for plaintiff-appellant.
    James R. Kniffen, Barnett & Alagia, Nashville, for defendants-appellees.
   OPINION

LEWIS, Judge.

We granted this Tenn.R.App.P. 9 appeal to consider whether the doctrines of de facto corporation and corporation by estop-pel are alive and well in Tennessee or whether their demise was caused by the passage of the Tennessee General Corporations Act, specifically Tenn.Code Ann. §§ 48-1-204 and 48-1-1405.

The pertinent facts are as follows: Joseph E. Walker is President of Music City Sawmill Co., Inc. and Music City Lumber Company, Inc., both Tennessee corporations. On January 27, 1982, Mr. Walker, supposedly on behalf of Sawmill, purchased a wheel loader from plaintiff, Thompson & Green Machinery Co., Inc. However, on January 27, 1982, Sawmill was not a corporation, a fact unknown to either plaintiff or defendant Walker on January 27th. It was not until late July or early August, 1983, that it was discovered that the date of the incorporation of Sawmill was actually January 28, 1982, one' day after the sale of the wheel loader.

Pursuant to the sale, Walker signed a promissory note in the amount of $37,-886.30 on behalf of Sawmill to plaintiff. A purchase money security interest was also taken in the equipment. The promissory note was signed in the following manner:

January 27, 1982 MUSIC CITY SAWMILL, INC. (Corporate, Partnership or Trade (Seal) Name or Individual Signature) BY: /s/ Joe Walker_ (Signature: Title of officer, “Partner” or “Proprietor”) Individually

Sawmill was unable to make the payments and returned the wheel loader on August 27, 1982. On October 14, 1982, plaintiff sold the wheel loader for $15,-303.83 and applied the proceeds to the note, leaving a balance of $17,925.81. So far as the record discloses, between January of 1982 and August, 1982, plaintiff and Sawmill dealt with each other as corporations.

Plaintiff brought suit against both Sawmill and Lumber on May 5, 1983, in the Chancery Court to recover the balance due on the note and parts sold to Sawmill. On August 5, 1983, plaintiff amended its complaint to include Mr. Walker as a defendant after plaintiff learned that Sawmill was not a corporation on January 27, 1982. This suit against Mr. Walker individually was his first notice that Sawmill was not incorporated on that date.

Mr. Walker does not seriously assert that the doctrine of de facto corporation is still viable in Tennessee. He does forcefully insist that plaintiff is estopped to deny Sawmill’s corporate existence because plaintiff (1) “dealt with Sawmill as a corporation” and (2) “did not intend to bind [Mr. Walker] personally on the promissory note.”

It is the insistence of plaintiff that neither the doctrine of de facto corporation nor corporation by estoppel are viable in Tennessee since the passage of the Tennessee General Corporations Act. Plaintiff contends that defendant Walker is personally liable because of the interaction of Tenn.Code Ann. § 48-1-1405 which provides that “[a]ll persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof,” and Tenn.Code Ann. § 48-1-204 which provides that “[a] corporation shall not ... incur any indebtedness ... until (a) The charter has been filed by the secretary of state, and (b) ... there has been received the amount stated in the charter as being the minimum amount of consideration to be received for its shares before commencing business.”

Plaintiff insists that since the charter was not filed by the Secretary of State when the promissory note was executed, the corporation neither had the authority to incur indebtedness nor the power to authorize any actions on its behalf and, therefore, pursuant to Tenn.Code Ann. § 48-1-1405, Mr. Walker is liable “for all debts and liabilities incurred” since he assumed to act as a corporation without authority.

It is conceded that Sawmill did not have a corporate existence on January 27th. It therefore follows that Mr. Walker could not and did not have authority to act for Sawmill on January 27th when he executed the promissory note to plaintiff.

It is a general rule that one who deals with an apparent corporation as such and in such manner as to recognize its corporate existence de jure or de facto is thereby estopped to deny the fact thus admitted.... The estoppel extends as well to the privies as to the parties to such transactions. The general rule is applied in actions brought by either of the contracting parties against the other, and in actions by the persons dealing with the corporation, wherein the existence of the corporation is assailed for the purpose of establishing individual partnership liability on the part of its members.

18 Am.Jur.2d Corporations § 76.

Tennessee has long recognized the foregoing rule. Our Supreme Court, in Ingle System Co. v. Norris & Hall, 132 Tenn. 472, 178 S.W. 1113 (1915), stated:

When a private person enters into a contract with a body purporting to be a corporation, in which that body is described by the corporate name which it has assumed, such private person thereby admits the existence of the corporation for the purpose of the suit brought to enforce the obligations, and will not be permitted to deny the corporate existence of the plaintiff.

Id. at 474, 178 S.W. at 1114.

However, in 1968 the Tennessee General Assembly enacted the “Tennessee General Corporations Act,” Chapter 523, Pub. Acts of 1968.

Our research reveals no Tennessee decision which has addressed either de facto corporation or corporation by estoppel since the passage of the act in 1968.

Courts in other jurisdictions which have considered the question of de facto corporations under statutes similar to Tenn.Code Ann. §§ 48-1-204 and 48-1-1405 have held that under the act, de facto corporations no longer exist.

In Timberline Equipment Company, Inc. v. Davenport, 267 Ore. 64, 514 P.2d 1109 (1973), the Oregon Supreme Court, in interpreting ORS 57.321 and ORS 57.792, Oregon statutes almost identical to Tenn. Code Ann. §§ 48-1-204 and 48-1-1405, stated:

In 1953 the legislature adopted the Oregon Business Corporation Act. Oregon Laws 1953, ch. 549. The Model Business Corporation Act was used as a working model for the Oregon Act. 1952 Oregon State Bar Committee Reports, p. 5.
ORS 57.321 of the Oregon Business Corporation Act provides:
“Upon the issuance of the certificate of incorporation, the corporate existence shall begin, and such certificate of incorporation shall be conclusive evidence that all conditions precedent required to be performed by the incorpo-rators have been complied with and that the corporation has been incorporated under the Oregon Business Corporation Act, except as against this state in a proceeding to cancel or revoke the certificate of incorporation or for involuntary dissolution of the corporation.”

This section is virtually identical to § 56 of the Model Act. The Comment to the Model, prepared as a research project by the American Bar Foundation and edited by the American Bar Association Committee on Corporate Laws, states:

“Under the Model Act, de jure incorporation is complete upon the issuance of the certificate of incorporation, except as against the state in certain proceedings challenging the corporate existence. In this respect, the Model Act provisions are the same as those in many states, although in a number of them some further action is required before the corporation has legal existence, such as local filing or recording or publication.
“Under the unequivocal provisions of the Model Act, any steps short of securing a certificate of incorporation would not constitute apparent compliance. Therefore a de facto corporation cannot exist under the Model Act.
“Like provisions are made throughout the Model Act in respect of the conclusiveness of the issuance by the secretary of state of the appropriate certificate in connection with filings made in his office. * * *
“In some states, however, issuance of the certificate of incorporation and compliance with any additional requirements for filing, recording or publication is not conclusive evidence of incorporation. In those states, such action is stated to be only prima facie evidence of incorporation, and in others the effect is merely one of estoppel preventing any question of due incorporation being raised in legal actions by or against the corporation.” Model Business Corporation Act Annotated § 56, p. 205 (2d ed. 1971). ORS 57.793 provides: “All persons who assume to act as a corporation without the authority of a certificate of incorporation issued by the Corporation Commissioner, shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.”

This is merely an elaboration of § 146 of the Model Act. The Comment states:

“This section is designed to prohibit the application of any theory of de facto incorporation. The only authority to act as a corporation under the Model Act arises from completion of the procedures prescribed in sections 53 to 55 inclusive. The consequences of those procedures are specified in section 56 as being the creation of a corporation. No other means being authorized, the effect of section 146 is to negate the possibility of a de facto corporation.
“Abolition of the concept of de facto incorporation, which at best was fuzzy, is a sound result. No reason exists for its continuance under general corporate laws, where the process of acquiring de jure incorporation is both simple and clear. The vestigial appendage should be removed.” 2 Model Business Corporation Act Annotated § 146, pp. 908-909 (2d ed. 1971).
In Robertson v. Levy, 197 A.2d 443 (D.C.Ct. of App.1964), the court held the president of a defectively organized corporation personally liable to a creditor of the “corporation.” The applicable legislation was similar to Oregon’s. The court held the legislation ended the common-law doctrine of de facto corporation.
The Alaska court upheld the cancellation of a special land-use permit upon the ground that the applicant had not yet been issued its certificate of incorporation at the time the permit was issued. Swindel v. Kelly, 499 P.2d 291 (Alaska 1972). Alaska has a statute similar to Oregon’s. The court commented: “The concept of de facto corporations has been increasingly disfavored, and Alaska is among the states whose corporation statutes are designed to eliminate the concept.” 499 P.2d at 299, n. 28.
Vincent Drug Co. v. Utah State Tax Com’n, 17 Utah 2d 202, 407 P.2d 683 (1965), cited by defendant, involved a statute similar to that of Oregon; however, the court held the de facto corporation doctrine continued to exist. No reasoning is stated and we find the case unpersuasive.
We hold the principle of de facto corporation no longer exists in Oregon.

Timberline Equipment Co., 267 Ore. at 66-69, 514 P.2d at 1110-1111.

We are of the opinion that the Oregon Supreme Court gave the acts the only interpretation to which they are reasonably susceptible. We hold that the Tennessee General Assembly, by passage of the Tennessee General Corporations Act of 1968, abolished the concept of de facto incorporation in Tennessee.

We have found only one jurisdiction which has considered corporation by estop-pel under statutes similar to ours. Robertson v. Levy, 197 A.2d 443 (D.C.Ct. of App.1964). In that case Levy and Robertson entered into an agreement whereby Levy was to form a corporation, Penn Ave. Record Shack, Inc., which was to purchase Robertson’s business. Levy submitted articles of incorporation to the authority designated by statute on December 27, 1961, but no certificate of incorporation was issued at that time. Pursuant to the contract, an assignment of lease was entered into on December 31,1961 between Robertson and Levy with Levy acting as president of Penn Ave. Record Shack, Inc. On January 2, 1962, the articles of incorporation were rejected by the designated authority. On that same day, however, Levy began to operate the business under the name Penn Ave. Record Shack, Inc. Robertson executed a bill of sale to Penn Ave. Record Shack, Inc. on January 8, 1962, disposing of the assets of his business to Penn Ave. Record Shack, Inc., and receiving in return a note providing for installment payments. The note was signed: “Penn Ave. Record Shack, Inc., by Eugene M. Levy, President.” On January 17,1962, the certificate of incorporation for Penn Ave. Record Shack, Inc. was issued. In June, 1962, Penn Ave. Record Shack, Inc. ceased to do any business, and, subsequently, Robertson sued Levy for the balance due on the note.

The trial court held that the District of Columbia Code § 29-950, which is identical to Tenn.Code Ann. § 48-1-1405, did not apply and “that Robertson was estopped to deny the existence of the corporation.”

On appeal, the Court of Appeals for the District of Columbia held that, pursuant to § 29-921c, which is substantially the same as Tenn.Code Ann. § 48-1-203, courts must no longer inquire into the equities of a case to determine whether there has been “colorable compliance” with the statute, that before a certificate of incorporation issues, there “is no corporation de jure, de facto, or by estoppel.” The Court went on to state:

Under Section 29-950, if an individual or group of individuals assumes to act as a corporation before the certificate of incorporation has been issued, joint and several liability attaches. We hold, therefore, that the impact of these sections, when considered together, is to eliminate the concepts of estoppel and de facto corporatness under the Business Corporation Act of the District of Columbia. It is immaterial whether the third person believed he was dealing with a corporation or whether he intended to deal with the corporation. The certificate of incorporation provides the cutoff point; before it is issued, the individuals, and not the corporation, are liable.

Robertson, 197 A.2d at 447.

Corporate existence does not begin until such time as “the charter is filed by the secretary of state.” Tenn.Code Ann. § 48-1-203.

A corporation shall not transact any business, conduct any affairs, or incur any indebtedness except as shall be incidental to its organization, or, in the case of a corporation for profit, incidental to obtaining subscriptions to or payment for its shares until:
(a) The charter has been filed by the secretary of state, and
(b) If a corporation for profit, there has been received the amount stated in the charter as being the minimum amount of consideration to be received for its shares before commencing business.

Tenn.Code Ann. § 48-1-204.

Tenn.Code Ann. § 48-1-1405 mandates that “[a]ll persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.”

The General Assembly, in enacting Tenn.Code Ann. § 48-1-1405 saw fit to place statutory liability upon those who assume to act as a corporation without authority. Section 48-1-1405 does not contain an exception that one who assumes to act as a corporation without authority shall be jointly and severally liable for debts and liabilities except when the plaintiff thereafter dealt with the corporation as a corporation or when the plaintiff did not intend to bind one who assumed to act personally. No exceptions are contained in § 48-1-1405. For this Court to hold that under the circumstances here Mr. Walker is not liable, it would be necessary that this Court rewrite the Tennessee General Corporations Act and hold that the Act does not mean what it says. We are not at liberty to do so. We find nothing ambiguous in Tenn.Code Ann. § 48-1-1405. It is clear that “[a]ll persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.” We find no good faith exception in the act. To allow an estoppel would be to nullify Tenn.Code Ann. § 48-1-1405.

We are of the opinion that the doctrine of corporation by estoppel met its demise by the enactment of the Tennessee General Corporations Act of 1968.

It results that the judgment of the Chancellor is reversed and the cause remanded to the Chancery Court for the entry of judgment for plaintiff in the amount of $17,925.81 together with accrued interest and attorney’s fees as provided by the note and for any other necessary proceedings. Costs are taxed to defendant Walker.

TODD, P.J., and KOCH, J., concur.