author: SNYDER, Judge.

text:
    CONSOLIDATED PUBLIC WATER SUPPLY DISTRICT NO. C-1, Plaintiff-Respondent, v. FARMERS BANK, Defendant-Appellant.
    No. 47457.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.

      Richard D. Shewmaker, Clayton, for defendant-appellant.
    Roland A. Wegmann, Mark T. Stoll, Hillsboro, for plaintiff-respondent.
   SNYDER, Judge.

Defendant Farmers Bank appeals from a judgment entered on a jury verdict for $207,108.07 in favor of plaintiff Consolidated Public Water Supply District No. C-l on its claim that the Bank improperly charged the Water District’s account for checks paid over forged endorsements. §§ 3-404, 4-401 U.C.C.

The Bank relied on two defenses: first, the “padded payroll” or imposter section of the U.C.C., § 3-405; second, the negligence of the Water District in conducting its business so that an employee could, by forging endorsements, cash checks made out to the Water District’s suppliers, § 3-406. The judgment is affirmed in part and reversed and remanded in part.

Bank contends the trial court erred in: (1) overruling its motion for directed ver-diet; (2) instructing the jury on the definition of good faith; (3) requiring the Bank to follow “reasonable commercial standards” in its instruction on the defense under § 3-405, U.C.C., the imposter section; (4) in instructing the jury on the applicability of § 400.4-406 U.C.C. relating to the time limit on recovery by the Water District for checks with unauthorized endorsements; (5) in refusing to withdraw from the jury’s consideration evidence of the Bank’s failure to obtain the endorsements of the Water District’s manager or other person when he cashed the checks in question, and overruling objections to closing arguments relating to Bank’s failure to obtain the endorsements; (6) in refusing instructions which stated the effect of Bank’s negligence; and (7) in refusing an instruction regarding a Water District employee’s apparent and inherent authority to cash checks on behalf of Water District.

The Water District’s motion to dismiss the appeal because Bank’s brief fails to comply with Rule 84.04(d) was denied, although appellant Bank’s brief was indeed defective under the rule. See Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978).

The Bank, however, has filed a motion under Rule 84.08(a), taken with the case, to excuse its partial failure to comply with Rule 84.04(d) and to supplement its brief. The supplement sufficiently corrects the original brief by at least stating specifically what trial court rulings are asserted as error. The Bank’s motion to excuse and to supplement its brief is granted.

The facts are essentially undisputed. The Water District is a public consolidated water supply district serving part of Jefferson County. It is a consolidation of Public Water Supply District No. 4 and Public Water Supply District No. 9. The consolidation took place in late 1977.

Floyd E. Sutterfield became the manager of District No. 9 when it was organized in 1966 and he subsequently managed District No. 4, in addition to District No. 9, for a fee, under an agreement between the two districts, which were consolidated in 1977 as Consolidated Public Water Supply District No. C — 1. Mr. Sutterfield continued to manage the consolidated district until early 1980.

The Water District was governed by a five member board of directors which met once a month. The manager, through the employees of the Water District, carried on the day-to-day operations including the ordering of supplies and materials and the paying of the bills.

The Water District maintained checking accounts at the Bank.

Authorization to pay Water District bills came from the board of directors through ordinances which were passed at the monthly meetings. The ordinances were submitted to the board of directors in folders which contained the invoices from creditor suppliers, and the checks made out in payment of the invoices.

The practice was for the manager to make out the check stubs showing to whom the check should be made out and the purpose, such as meter supplies, insurance premiums, engineering services or other supplies. The women in the office, referring to the check stubs, would then type up the ordinances and the checks which were presented to the board of directors at the monthly meetings.

After the ordinances were passed, the chairman and the treasurer would sign the checks which were then turned over to the manager for mailing, or as it developed in some cases, for cashing.

The manager of Water District denied it at trial, but someone submitted for the Board’s approval ordinances for the payment of bills supported by duplicates of invoices which had already been paid or were to be paid on future ordinances, and sometimes even supported by purported bills from creditors typed on Water District stationery. The evidence, except for the manager’s testimony, was that the manager took the ordinance folders to the board meetings and presented them to the directors in nearly all cases.

The chairman and the treasurer signed the checks after the ordinances were passed and gave the files to the manager. The manager or some other person then forged the endorsements of the payees and received cash for the checks at the Bank, where the tellers did not require the manager or other person to endorse the checks. The person cashing the checks routinely asked for large bills. The checks varied in amounts from less than $200 to as much as $2,400, increasing in amounts as the scheme continued. In short, this case presents the classic “fictitious payee” or “padded payroll” case. See UCC § 3-405, Comments. The procedure was the same for all three districts.

I. MOTION FOR DIRECTED VERDICT

The Bank’s first contention is that the trial court erred in denying its motion for a directed verdict because the evidence established Bank’s defenses based upon §§ 3-405, 3-406, and 4-406.

In deciding whether the trial court erred in overruling a motion for a directed verdict the evidence is viewed most favorably to the party opposing the motion. Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932[1] (Mo.App.1978). One who has the burden of proof on an issue ordinarily is not entitled to a directed verdict where his proof rests on oral testimony. Where the opponent in his pleadings or by counsel admits the issue, however, or by his evidence also establishes the first party’s claim, or where there is no real dispute about the basic facts, supported by uncontradicted testimony, essential to a claim or affirmative defense, the party with the burden of proof may be entitled to a directed verdict. Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 286-287 (1954).

A drawee bank may debit its customer’s account only for checks which are “properly payable.” § 4-401(1) UCC. Checks paid over forged endorsements are not ordinarily properly payable because § 3-404 renders a forged endorsement wholly inoperative as the signature of the actual payee. Western Cas. and Sur. Co. v. Citizens Bank of Las Cruces, 676 F.2d 1344, 1345[1] (10th Cir.1982); Kraftsman Container Corp. v. United Counties Trust Co., 169 N.J.Super. 488, 404 A.2d 1288, 1290 (1979).

The Bank paid the checks drawn on the Water District’s account over forged endorsements. Unless another provision of the Uniform Commercial Code shifts the risk of the forged endorsements, the Bank is liable to the Water District for the amounts it paid on the checks. The Bank relies on either § 3-405, the “padded payroll” section, or § 3-406, the negligence section, for its defense.

A. SECTION 3-405(l)(C) UNIFORM COMMERCIAL CODE

"An endorsement by any person in the name of a named payee is effective if ... an agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest.” § 3-405(l)(c) UCC. Official Comment 4 to § 3-405 makes it clear that in the so-called padded payroll cases, the risk of loss shifts from the drawee, here the Bank, who would ordinarily bear the loss under §§ 4-401 and 3-404(1), to the drawer, the Water District:

Paragraph (c) is new. It extends the rule of the original Subsection 9(3) to include the padded payroll cases, where the drawer’s agent or employee prepares the check for signature or otherwise furnishes the signing officer with the name of the payee. The principle followed is that the loss should fall upon the employer as a risk of his business enterprise rather than upon the subsequent holder or drawee. The reasons are that the employer is normally in a better position to prevent such forgeries by reasonable care in the selection or supervision of his employees, or, if he is not, is at least in a better position to cover the loss by fidelity insurance; and that the cost of such insurance is properly an expense of his business rather than of the business of the holder or drawee.

The present case fits within § 3-405(l)(c). The Water District’s employee supplied it with the names of creditors, who had already been paid, or who would in the future be paid on another ordinance, not intending that the creditors would actually have any interest as payees. After the checks were written out, the employee took them, forged the endorsements and cashed the checks. This accords with the testimony of the tellers, although the manager denied it. Cf. Clinton Weilbacher Builder, Inc. v. Kirby State Bank, 643 S.W.2d 473 (Tex.App.1982).

The Water District argues that § 3-405 is inapplicable because the forged endorsements were not in the name of the named payee. For § 3-405 to be applicable the forged endorsements must be exactly the same as the named payees. Twellman v. Lindell Trust Co., 534 S.W.2d 83, 92-93[13, 14] (Mo.App.1976).

This court has examined the checks upon which Water District brought suit and has determined that all but four contain endorsements in the name of the named payee. These checks, with a combined value of $2,795.68, fall outside § 3-405(l)(c) and are, therefore, not properly payable. Section 3-405 is applicable to the rest of the checks.

One of the four cheeks, Exhibit P-5, for $286.68, was paid by the Bank over three years before the Water District reported the manager’s scheme to the Bank. That amount is not recoverable by the Water District unless the Bank was guilty of bad faith. § 4-406 U.C.C. As explained later in this opinion, this court finds as a matter of law that the Bank was not guilty of bad faith and therefore the Water District cannot recover the $268.68.

It may recover the amounts represented by the other three checks, however, and the judgment must be affirmed for the amount of $2,509.00. Twellman v. Lindell Trust Co., supra.

Water District also argues that, despite the literal applicability of § 3-405(l)(c), Bank may not claim its protection because Bank failed to exercise good faith in paying the checks over the forged endorsements. The obligation of good faith which § 1-203 imposes upon the performance or enforcement of every contract or duty within the U.C.C. is applicable to transactions to which § 3-405 is applicable. See Western Cas. and Sur. Co. v. Citizens Bank of Las Cruces, 676 F.2d at 1347.

Section 1-201(19) defines “good faith” as “honesty in fact in the conduct or transaction concerned.” There is no evidence in the present case that the Bank or its employees intentionally participated in the scheme to defraud the Water District or that Bank or its employees knew of the manager’s conduct. The Water District’s counsel freely admitted the lack of evidence of dishonesty during the instruction conference:

THE COURT: And we have no evidence of any inside plotting or planning or co-partnership inside the Bank for this scheme of defrauding the Water District?
MR. STOLL: I agree with that. I don’t know that it takes that.

Although there was no evidence of dishonesty, the record does contain evidence from which the jury could infer that the Bank failed to exercise ordinary care or observe reasonable commercial standards. A detailed discussion of the bases upon which the Bank might be found negligent is set forth below in the discussion of § 3-406, but for present purposes it is enough to say that the Bank was at least arguably negligent.

The lack of evidence of dishonesty coupled with the arguable negligence of the Bank brings this court to the crucial issue of the present case: whether a bank owes not only an obligation of honesty in fact but also a duty to exercise ordinary care or observe reasonable commercial standards when it pays an instrument over a forged endorsement under § 3-405. The issue is one of first impression in Missouri.

Section 3-405 itself imposes no standard of care upon a bank paying a check in a padded payroll case. The forged endorsement is made effective without regard to the paying bank’s fault, thus shifting the risk of loss from the bank, which would otherwise be liable under 4-401(1), to the drawer of the check. See Official Comment 4, § 3-405 U.C.C.

In the early drafts of the U.C.C. the definition of good faith included observance of reasonable commercial standards. In later drafts the reasonable commercial standards requirement was omitted. Braucher, “The Legislative History of the Uniform Commercial Code,” 58 Colum.L. Rev. 798, 812 (1958).

Section 1-201(18) of the 1950 proposed final draft defined good faith as including not only honesty in fact, but also “... observance by a person of the reasonable commercial standards of any business or trade in which he is engaged.” The American Law Institute, Uniform Commercial Code Proposed Final Draft, § 1-201(18) (Text and Comments Ed. Spring 1950).

By 1952, however, the general definition of good faith, § 1-201(19), omitted any reference to the observance of reasonable commercial standards. The American Law Institute, Uniform Commercial Code Official Draft, § 1-201(19) (Text and Comments Ed.1952). Thus, good faith is generally limited to honesty in fact unless a specific provision of the U.C.C. imposes additional standards for a particular transaction. Braucher, 58 Colum.L.Rev. at 812; Official Comment 19, § 1-201 U.C.C.

The same progression took place in the definition of good faith as it applied to holders in due course. In the early drafts the definition included reasonable commercial standards. The American Law Institute, Uniform Commercial Code Proposed Final Draft No. 2, § 3-302(l)(b) (Text Ed. Spring 1951).

Reference to reasonable commercial standards in the definition of a holder in due course of a negotiable instrument was deleted by the Uniform Commercial Code editorial board in the 1957 official edition. The American Law Institute, Uniform Commercial Code 1957 Official Edition, § 3-302(l)(b).

Section 3-302(l)(b) of the 1956 recommendations and text reads follows: “In good faith [including observance of the reasonable commercial standards of any business in which the holder may be engaged] ... The omission of the bracketed material is intended to make clear that the doctrine of an objective standard of good faith exemplified by the case of Gill v. Cubit, 3B & C 466 (1824) is not intended to be incorporated in article 3.” American Law Institute, Uniform Commercial Code 1956 Recommendations, p. 102-103 (1957).

The definition of good faith in the Uniform Fiduciaries Act may be examined in determining this question, which is one of first impression in Missouri. The act defines good faith as follows: “A thing is done in good faith within the meaning of sections 456.240 to 456.350 when it is in fact done honestly, whether it be done negligently or not.” § 456.240.2 RSMo.1978.

That no duty of the bank is expressly required by § 3-405 does not mean that obligations are totally absent. Section 1-203 imposes upon all transactions under the Code the obligation to act in good faith.

The Code, however, contains no similar provision which imposes a duty to exercise ordinary care in all transactions under the U.C.C. Various provisions of the commercial paper articles, Articles 3 and 4, other than § 3-405, do impose upon the bank a negligence standard when paying instruments.

Section 3-406 requires a bank to exercise both good faith and “reasonable commercial standards” when paying an instrument in order to preclude one who has substantially contributed to a material alteration of the instrument from asserting that alteration against the bank. See Twellman v. Lindell Trust Co., 534 S.W.2d at 91-92.

Also, § 4-406(3) requires a bank to exercise ordinary care before it may preclude its customer from asserting his unauthorized signature or any alteration of an item by reason of the customer’s own negligence. See Nu-Way Services, Inc. v. Mercantile Trust Co. Nat. Ass’n., 530 S.W.2d 743, 746-747 (Mo.App.1975).

The drafters of the U.C.C., and the legislatures which enacted it, were not hesitant expressly to impose upon a bank a requirement to avoid negligence where they intended that standard of care to apply. The absence in § 3-405 of a duty to act reasonably or with ordinary care frees the bank from the consequences of its own ordinary negligence when it pays an instrument over a forged endorsement in a situation covered by § 3-405. Kraftsman Container Corp. v. United Counties Trust Co., 169 N.J.Super. 488, 404 A.2d 1288, 1291-1292 (1979); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chemical Bank, 456 N.Y.S.2d 742, 746, 57 N.Y.2d 439, 442 N.E.2d 1253, 1257 (1982); Western Cas. and Sur. Co. v. Citizens Bank of Las Cruces, 676 F.2d at 1347-1348; Prudential Ins. Co. of America v. Marine Nat. Exchange Bank of Milwaukee, 371 F.Supp. 1002, 1003 (E.D.Wis.1974).

That the reasonable commercial standards language was eliminated from the definition of good faith and from the good faith requirement in the holder in due course section indicates that good faith does not include the observance of reasonable commercial standards.

In addition, the legislative history of § 3-405 suggests that it was intended to shift the loss arising from padded payroll and fictitious payee eases from the drawee to the drawer. For a good discussion of this legislative history, see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chemical Bank, 456 N.Y.S.2d at 745-746, 442 N.E.2d at 1256-1257.

Some courts, however, have held that § 3-405 does not protect the bank where it is negligent in paying the check. In E.F. Hutton & Co., Inc. v. City National Bank, 149 Cal.App.3d 60, 196 Cal.Rptr. 614 (1983), the court held that § 3-405 did not apply to a negligence action where the drawer of the check sued the collecting bank on the ground that the checks had inadequate indi-cia of the drawer’s employee’s authority to cash the checks. The court reasoned that since § 1-103 states that principles of law and equity supplement the Code unless displaced by particular provisions of the U.C.C. and no Code provision displaces common law negligence recovery, § 3-405 is inapplicable to negligence actions. 196 Cal.Rptr. at 620[9].

This court is not persuaded by the California appellate court’s reasoning. The more reasonable statutory interpretation is that § 3-405 does not permit recovery from a bank which pays an instrument in good faith in a padded payroll case. The court in E.F. Hutton & Co., Inc. v. City Nat. Bank, does not dispute the statutory interpretation, but instead allows recovery for negligence based on the common law.

To hold that one may use a common law negligence action to recover in a padded payroll case is to allow § 3-405 to become a virtual nullity. It is inconceiva.ble that those who drafted the U.C.C. intended to forbid recovery under the Code, but to permit the same remedy for the same wrong outside the Code. Section 1-103 intended the common law to supplement, not contradict, the other provisions of the U.C.C. See also Western Cas. & Sur. Co. v. Citizens Bank of Las Cruces, 676 F.2d at 1347-1348.

Water District cites Underpinning & Foundation Constructors, Inc. v. Chase Manhattan Bank, 414 N.Y.S.2d 298, 46 N.Y.2d 459, 386 N.E.2d 1319 (1979) for its contention that “a bank must apply normal commercial standards even if a check is forged and the bank may not blindly accept a check.” In Underpinning, an employee not only obtained the check by supplying his employer with the names of payees without intending the latter to have an interest in the checks as payees, but he also forged the endorsements with stamps, which endorsements included the restriction, “for deposit only.” Thus, the depository bank’s failure to pay the check in accordance with the restrictive endorsement, not its mere negligence under § 3-405, is what led the court to impose liability on the bank. The New York Court of Appeals in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chemical Bank, supra, distinguished Underpinning on the ground of the restrictive endorsement when it squarely held that negligence of the bank in paying a forged instrument will not result in liability for the bank if § 3-405 is applicable. 456 N.Y.S.2d at 747, 442 N.E.2d at 1258.

The Water District and the trial court relied on General Insurance Company of America v. Commerce Bank of St. Charles, 505 S.W.2d 454 (Mo.App.1974), which was a decision under the Uniform Fiduciaries Act, not the Uniform Commercial Code, to show that good faith was negated by “commercially unjustifiable” practices on the part of the Bank. In fact, however, the General Insurance case supports the position of the appellant Bank here.

In General Insurance, checks, 25 in number, cashed by a guardian were in question. They were drawn by the guardian on the guardianship account over a period of seven months. Two of them contained notations that they were for service “as per probate court’s verbal order” and one for “future services.”

The appellate court was faced with the question of defining good faith under the Uniform Fiduciaries Act, 456.290 RSMo. 1978 and used the “commercially unjustifiable” language which it copied from a federal court case from North Carolina, not in defining good faith, but in defining bad faith. General Insurance, supra at 457-458[8, 9],

The Court of Appeals in General Insurance affirmed the judgment dismissing the petition for failure to state a claim upon which relief could be granted, finding as a matter of law that no lack of good faith had been alleged. See also, Cassel v. Mercantile Trust Company, 393 S.W.2d 433 (Mo.1965); and Cassel v. Security Trust Company, 393 S.W.2d 443 (Mo.1965).

In both Cassel cases the supreme court also affirmed dismissals of petitions for failure to state a claim upon which relief could be granted. In those cases an executor and trustee drew 34 checks on his executor’s accounts for a total of $47,500. In addition, he cashed 38 more checks, in the total amount of $62,725, at another bank which had merged with Security Trust Company.

The supreme court held that bad faith was the basis of liability and that nothing had been alleged from which bad faith could be inferred, even though the petition had alleged that the bank should have known the checks were bad because it had acted in hundreds of probate estates and that the trust department employees knew of the duties and responsibilities of executors which allegedly had been breached.

Thus, Water District may not avoid the Bank’s § 3-405 affirmative defense on the grounds of Bank’s failure to observe reasonable commercial standards. In addition, the evidence establishes Bank’s honesty in fact. This court holds that the Bank, in fact, acted in good faith under § 1-203 and the jury should have been instructed accordingly. See Rogers v. Thompson, supra.

Nonetheless, the Bank is not entitled to a directed verdict. The Water District’s manager testified that he did intend the payees of the checks to have an interest in the checks and that he did not cash the checks. Incredible as the manager’s testimony may be, if the jury believed it, then Bank’s § 3-405 defense would be inapplicable.

B. SECTION 3-406 UNIFORM COMMERCIAL CODE

Bank relies heavily upon evidence of Water District’s own negligence in asserting that a verdict should have been directed for Bank under § 3-406 because Water District’s negligence precludes it from asserting the unauthorized signatures. Without a doubt, had Water District exercised minimal standards of internal control, such as requiring originals of invoices or an accounts payable ledger, the fraud would have been much more difficult, if not impossible, to perpetrate. Under § 3-406, however, the Bank may not ignore evidence of its own negligence.

The section reads:

Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other pay- or who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.

Unlike § 3-405, § 3-406 requires a drawee, the Bank here, to observe “reasonable commercial standards” as a condition of taking advantage of the defense set forth in that section. The test is "... whether a reasonable man in accordance with reasonable commercial standards would be put on notice of some impropriety appearing either from the form of the instrument and its endorsements, or from knowledge of facts outside the instrument itself.” Trust Co. of Georgia Bank of Savannah v. Port Terminal & Warehousing Co., 153 Ga.App. 735, 266 S.E.2d 254, 258 (1980).

The jury could have found from the evidence that Bank failed to follow reasonable commercial practices. Water District alleges numerous grounds upon which Bank could be found negligent; at least two of the Water District’s allegations would support a finding of the Bank’s failure to observe reasonable commercial standards. The other asserted bases of negligence will not be discussed due to the length of this opinion.

First, Bank could have been found by the jury not to have exercised reasonable commercial standards in accepting for payment checks made payable to companies and corporations, such as Pitney Bowes, where the payees’ endorsements were handwritten rather than stamped. A handwritten endorsement of a corporation or business entity should give reasonable people in the banking business a suspicion that the endorsement may be forged.

Second, the jury could have found Bank negligent for not requiring the person presenting the checks to endorse the checks. If the manager of Water District, or whatever person cashed the checks, had been required to endorse the checks, an audit trail would have been created by which Water District could have determined who was cashing the checks and by this means investigated the fraud which was perpetrated on it.

The Bank correctly points out that § 3-505 merely makes the presenter’s signature optional with the bank and under § 3-204(2) a check endorsed in blank becomes bearer paper; however, nothing in the Uniform Commercial Code states that a bank as a matter of law practices reasonable commercial standards by not requiring the presenter’s endorsement.

The evidence presented an issue to the jury as to whether Bank exercised the reasonable commercial standards required by the § 3-406 defense. The Bank was, therefore, not entitled to a directed verdict because of the Water District’s negligence under § 3-406.

C. SECTIONS 3-417, 4-207 UNIFORM COMMERCIAL CODE

The Bank argues that a directed verdict should be granted because the Water District’s manager had apparent and inherent authority to cash the checks on behalf of the Water District so that the district warranted that it had good title or was authorized to obtain payment on behalf of one who had good title under §§ 3-417 and 4-207, the statutes which set forth the warranties on presentment and transfer of promissory notes and checks. The argument has no merit.

If, as the Bank theorizes, a faithless employee of the Water District took the checks after inducing their issuance and then forged the payees’ endorsements, then the Water District has no liability under either § 3-417 or § 4-207. Sections 3-417(1), (2), and 4-207(1), (2) do not apply to the Water District because it neither obtained payment or acceptance of, nor received consideration or a settlement for the checks.

The Water District did not breach its warranty of title § 4-207(l)(a). There was no unauthorized signature of the drawer. § 4 — 207(l)(b). There was no material alteration. § 4-207(l)(e).

The only way the Water District would be liable for breach of warranty is if it re-entered the chains of title at some point after the forgeries and then transferred the checks for consideration. This did not happen. This point is not well taken.

II. JURY INSTRUCTIONS

The Bank also argues that the trial court committed several errors in instructing the jury.

A. DEFINITION OF GOOD FAITH

The Bank first argues that the trial court erred in its definition of good faith. The point is moot because upon remand, no jury instruction will hypothesize a finding of good faith. No definition of good faith will be nebessary unless evidence of dishonesty in fact is adduced at retrial.

B. AFFIRMATIVE DEFENSE OF § 3-405

Instruction No. 9 was also erroneous because Instruction 9 required the jury to find that “the Bank paid the checks in good faith and in accordance with the reasonable commercial standards of its business.” This is appellant’s third point. The complete instruction read:

INSTRUCTION NO. 9
Your verdict must be for defendant if you believe:
First, some person or persons who worked for the Water District supplied the names of the payees of the checks which later had the forged endorsements, and
Second, that person or those persons intended the payees to have no interest in the checks, but intended that they should be cashed with forged endorsements by somebody else, and
Third, that the Bank paid the checks in good faith and in accordance with the reasonable commercial standards of its business.

The Bank offered Instruction No. A which was the same instruction except that the third paragraph was omitted.

The instruction is erroneous for two reasons. First, Bank is not required to pay checks “in accordance with the reasonable commercial standards of its business” under § 3-405. See discussion in I.A., supra. Thus, an instruction on § 3-405 should omit any reference to reasonable commercial standards.

Second, all the evidence and the Water District’s counsel’s admission points to a finding of good faith and thus the jury should not have been instructed on good faith. See page 853, supra. Accordingly, Bank’s Instruction A was the proper submission of § 3-405.

Respondent relies on Kraftsman Container Corporation v. United Counties Trust Co., supra; and Underpinning and Foundation Constructors, Inc. v. Chase Manhattan Bank, supra.

The Underpinning case is distinguishable from the case under review because there checks were deposited with a restrictive endorsement: “For Deposit Only.” The New York Court of Appeals held that the depository bank, (not the drawee bank), could be successfully sued by the drawer of the checks because of the bank’s failure to give effect to the restrictive endorsement. Merrill Lynch, Pierce, Fenner & Smith, supra, distinguishes the Underpinning case.

Kraftsman Container Corporation, supra, also does not help respondent. The New Jersey court failed to apply the reasonable care negligence standard to the bank in a fictitious payee endorsement case, calling it a novel proposition, 404 A.2d at 1290. The court did not sustain the novel proposition and applied as its standard of good faith the standard of honesty in fact. See Brighton, Inc. v. Colonial First National Bank, 176 N.J.Super. 101, 422 A.2d 433 (1980).

C. SECTION 4-406(4) UNIFORM COMMERCIAL CODE

In appellant’s fourth point it alleges error in the determination of the three year limit on reporting unauthorized endorsements under § 4-406(4) which reads:

Without regard to care or lack of care of either the customer or the bank a customer who does not within one year from the time the statement and items are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face or back of the item or does not within three years from that time discover and report any unauthorized endorsement is precluded from asserting against the bank such unauthorized signature or endorsement or such alteration.

On January 25, 1980, employees of the U.S. Department of Agriculture, who were auditing the Water District’s financial condition pursuant to a Water District loan application, met with officers from the Bank. The team from the Department of Agriculture told bank officers of their suspicions regarding the forgeries and informed the Bank of the number of checks, the amounts involved, the time period of the investigation (January, 1975 through 1979), and the names of several payees. The bank officers also looked at several of the checks, which were in the custody of the Department of Agriculture. The facts concerning the meeting were stipulated to by the parties. The next report which the Bank received was the Water District’s suit which was filed on February 11, 1981.

The issue is whether the discovery and report requirement of § 4-406(4) may be satisfied by one who is unrelated to the customer. The Department of Agriculture was not acting as an agent of the Water District, although in a sense the Department of Agriculture employees were acting on behalf of the Water District in auditing the Water District’s books to determine its eligibility for a loan.

The purpose of the statute is to set an absolute time limit of three years on the discovery of a forged endorsement by the customer. Official Comment 5 to § 4-406. There is also the obvious purpose of giving a bank notice of the questioned checks. The customer cannot recover for any checks cashed prior to the three year period. The Bank’s liability is thus limited.

Research disclosed no Missouri cases, and only one from another state, which speak to the question of the adequacy of a report to a drawee bank as required by § 4-406(4). The Water District cites American Home Assurance Company v. Scarsdale National Bank & Trust Company, 96 Misc.2d 715, 409 N.Y.S.2d 608 (1978). This is a county court case which carries no authority as precedent in Missouri, but it illustrates how one court viewed the problem of notice in one situation.

In the New York case there was only a discussion and exchange of letters between the customer and the bank concerning unexplained overdrafts and forgeries, no formal report. The bank defense contended the discussions and letters did not constitute a report as a matter of law. The court, in denying a summary judgment, held that whether the customer gave the required report to the bank was a question of fact.

The trial court here ruled that the question of the report and notice was a matter of law. The trial court found the notice by the Department of Agriculture employees to the Bank to be sufficient under the Code and instructed the jury in accordance with that finding. This court agrees.

The disclosures by the Department of Agriculture employees to the Bank—number of checks involved, time period, suspicion of forgery, and the names of payees— gave the Bank as much information as a report from the Water District would have.

The Bank officers saw several of the questioned checks and knew that the Water District had learned of the, at that time, purported, defalcations. The purpose of the statutory report requirement was met. The Bank’s liability is limited by the earlier date, January 25, 1980, rather than February 11, 1981 when the Water District filed suit.

Taken literally, the statute requires the customer, here the Water District, to make the reports, but the facts disclosed by the Department of Agriculture employees who were performing an audit for the Water District were sufficient to satisfy the statutory requirement in this case.

Although the trial court correctly ruled that the discovery and report requirement was fulfilled on January 25, 1980, it should not have instructed the jury on the issue. The trial court’s instruction read: “As to the checks cashed before the 1st day of January, 1977, your verdict must be for the defendant if you believe defendant paid the checks in good faith.” Because the jury should not have decided the issue of good faith in the present case, page 852 supra, there was no issue for them to resolve in connection with § 4-406. The trial court should have directed a verdict for Bank as to all cheeks cashed before January 1, 1977.

D. SECTION 3-406 UNIFORM COMMERCIAL CODE

In appellant’s fifth point it contends that trial court erred in refusing to withdraw from the jury’s consideration evidence of the Bank’s failure to obtain endorsements from the person or persons who cashed the checks. Appellant also complains about the trial court’s failure to sustain objections to the Water District’s closing argument about the failure to obtain endorsements. This point is not well taken.

Upon remand, if the court or jury finds that § 3-405 is not applicable, the question of the observance by the Bank of reasonable commercial standards may be at issue under § 3-406. Arguably, the failure to obtain endorsements from a person who receives large amounts of cash is a failure to observe reasonable commercial standards. See page 853, supra.

E. NEGLIGENCE OF THE WATER DISTRICT

In its sixth point appellant complains that the trial court erred in refusing to give either its Instruction No. E or Instruction No. I relating to the negligence of the Water District. In those instructions, one of which dealt with the checks severally, and the other of which dealt with them as a group, appellant used the term “ordinary care” and its definition. The offered instructions directed a verdict for the defendant if the Water District could have prevented, or detected and stopped, the forgeries by the use of ordinary care.

The trial court gave Instruction No. 8 directing a verdict for the defendant if it found that the plaintiff was negligent and such negligence substantially contributed to the making of the forged endorsements.

Section 3-406 of the statute uses the word “negligence” and this court finds no error in failing to give Instruction No. E or I or in the giving Instruction No. 8.

III. CONCLUSION

The Water District throughout the trial relied very heavily on the instructions relating to reasonable commercial standards and the commercially unjustifiable language in Instruction No. 4. Negligence is not bad faith. Good faith, as it directs in the statute, is honesty in fact. Failure to observe reasonable commercial standards does not negate good faith, although it may be negligence. The case was not tried on the correct principles of law and for that reason must be remanded for a new trial except for the checks on which the endorsements differed from the payees named on the faces of the checks.

The judgment for the plaintiff is affirmed in the amount of $2,509. In all other respects it is reversed and remanded.

SMITH, P.J., and SATZ, J., concur.

      . All Uniform Commercial Code citations may be found in Chapter 400, RSMo.1978. Throughout the opinion sections of the code may be referred to without the U.C.C. or Chapter 400 designation.

      . These checks are:


source: Caselaw Access Project

author: GAERTNER, Judge.

license: Public Domain

text:
    Adele SKINNER, Plaintiff-Appellant, v. SISTERS OF ST. MARY’S, d/b/a St. Mary’s Hospital, Defendant-Respondent.
    No. 48018.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.

      Nelson B. Rich, St. Louis, for plaintiff-appellant.
    Lawrence J. Hess, Clayton, for defendant-respondent.
   GAERTNER, Judge.

Plaintiff appeals from a judgment entered on a jury verdict in favor of defendant on plaintiff’s claims for damages due to alleged medical malpractice. The issues raised on appeal do not relate to the facts of plaintiff’s injury which was sustained when she fell from her bed several hours after undergoing surgery under a general anesthetic.

The first point asserted by plaintiff is that the trial court erred in refusing to permit prospective jurors to be asked on voir dire examination if they or members of their families had any financial interest in or were employed by defendant’s insurance company. In a pre-trial conference, counsel for defendant objected to such a question for the reason that the defendant’s insurer, the Missouri Professional Liability Insurance Association, was an association of several hospitals which were self-insured, that no individuals had any financial interest in the association and that it never had an office or any employees in the St. Louis area. On the basis of these representations, the trial court sustained the defendant’s objection.

■ The delicate balance between a plaintiffs need to know that prospective jurors have no connection with an interested insurance company and the prejudicial effect upon a defendant of the disclosure of insurance coverage to a jury has proved to be a vexing problem for Missouri courts for many years. As a general rule, we have held the possibility of taint resulting from some connection between a juror and an interested insurer, even though the disclosure of the latter’s interest is unlikely, outweighs the prejudice which might result from an inquiry naming the insurance company during voir dire. We trust in the broad discretion of the trial court to prevent abuse. Boland v. Jando, 414 S.W.2d 560, 563 (Mo.1967). However, where the insurance question is asked not in good faith but for the purpose of injecting insurance coverage into the minds of the jurors, we recognize the prejudicial effect thereof deprives the defendant of his right to a fair trial. Murphy v. Graves, 294 S.W.2d 29, 32-33 (Mo.1956). Good faith in making the inquiry is the fulcrum upon which these conflicting concerns are balanced. See State ex rel. Highway Commission v. Beaty, 505 S.W.2d 147, 152 (Mo.App.1974).

Plaintiff argues that the decision in Aiken v. Clary, 396 S.W.2d 668 (Mo.1965) should be controlling here. In Aiken, the trial court sustained defendant’s objection to the insurance question on the basis of an affidavit signed by the president of defendant’s insurance company that the company had no stockholders, officers or directors in Missouri and only one employee whose name was not on the jury list. The Supreme Court held this to be error because the affidavit did not include families of the jurors and because plaintiff had no opportunity to cross-examine the affiant. The court acknowledged the possibility of proof sufficient to “satisfy the trial court that there was no possibility that a member of the panel or his family could be a stockholder, officer, director or agent of the insurance company, that questions relating thereto could serve no useful purpose and that such questions could not be asked in good faith.” Id. at 677. Thus, the determination of error was based solely upon the inadequacy of the form and substance of the affidavit. Because the cause was remanded for other reasons, the prejudicial effect of this error was not considered.

In Morris v. Duker, 414 S.W.2d 77 (Mo.1967), the Supreme Court, directly addressed the question of the prejudicial effect of improperly restricting inquiry of prospective jurors regarding their possible relationship with an interested insurer. The trial court permitted a voir dire question about employment by an insurance company but refused an inquiry relating to the juror’s holding of a policy of insurance with that company. The Supreme Court stated that such an inquiry was proper and should have been permitted. The court refused to overturn the verdict and judgment, however, because of the plaintiff’s failure to show any prejudice by reason of the ruling. The plaintiff, who did not allege in his motion for new trial and prove at a hearing thereon that any member of the jury panel was, in fact, a policyholder, could not claim, in good faith, to have been prejudiced. “The burden is on appellant to establish prejudicial error upon an appeal, [citation omitted], and this rule applies to an order restricting the scope of voir dire examination.” Id. at 80. This court recently followed the teaching of Morris in Carter v. Parr, 634 S.W.2d 211 (Mo.App.1982), wherein the absence of an allegation of prejudice in a motion for new trial and proof thereof at a hearing was found to be fatal to a claimed abuse of discretion in restricting voir dire examination. Id. at 213.

Here, plaintiff did not allege in her motion for new trial that she was prejudiced in any way by reason of the trial court’s ruling. Nor has she suggested to us any manner in which she sustained any prejudice, unless it be the denial of the illegitimate injection of insurance coverage for that purpose alone. Moreover, in view of the fact that the Missouri Professional Liability Insurance Association has no stockholders but is an association of hospitals, which are its only insureds, with but a single office and a single employee in Jefferson City, Missouri, it is difficult to perceive of any effect the association’s involvement could have upon a St. Louis County jury. In the absence of even a suggestion of possible prejudice, we find no abuse of discretion in the trial court’s determination that plaintiff had failed to demonstrate the required good faith foundation for asking the insurance question. Moreover, we are constrained to follow Morris v. Duker, supra, the latest decision of our Supreme Court on the subject.

Plaintiff’s final point on appeal relates to the admission in evidence of certain testimony of nurse Patricia Kelly. Her name had not been disclosed by defendant in response to an interrogatory seeking the names of expert witnesses. By motion in limine this fact was brought to the attention of the trial court. Counsel for defendant stated he anticipated the witness would testify as to what she did and observed and to procedures in the recovery room. Whereupon plaintiff’s attorney stated he had no objection to her testifying to facts. During her testimony, the trial court sustained each objection of plaintiff’s attorney to questions which called for the expression of opinion. The witness was permitted to answer questions pertaining to what she saw and observed and to what her duties were. Only one objection was made to the witness’ defining of certain medical terms used by her in describing her actions in caring for plaintiff. She was permitted, over objection, to define the phrase “post-anesthetic recovery score” as a prelude to her testimony regarding the entries she made upon plaintiff’s hospital record regarding her observation of plaintiff’s condition and appearance in the recovery room. No reversible error is shown here.

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J„ concur.

      . On appeal plaintiff asserts the representations of defendant’s attorney are inadequate to establish the legal status of the Missouri Professional Liability Insurance Association. We do not address that question because it was not presented to the trial court. See Stroud v. Masek, 262 S.W.2d 47, 50 [2-4] (Mo.1953). Furthermore, representations of counsel, as officers of the court, regarding insurance coverage have consistently been accepted in the absence of conflicting claims, in which event the plaintiff has the burden of establishing the good faith foundation prerequisite to asking ithe insurance question. Murphy v. Graves, 294 S.W.2d at 33.


author: CLEMENS, Senior Judge.

text:
    COLLECTOR OF REVENUE FOR the CITY OF ST. LOUIS, Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Appellant.
    No. 48054.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.

      Kelly & Kelly, Timothy W. Kelly, Floris-sant, for appellant.
    James J. Wilson, Donald G. Dylewski, City Counselors, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Appellant Harriett Londoff is the former owner of six adjacent tracts in St. Louis. Respondent City of St. Louis is now the owner thereof by virtue of a public tax sale by the city’s Land Reutilization Authority. This change of ownership resulted from appellant’s failure to pay taxes for four years.

The city duly advertized the property for sale with due notice to owner Londoff. There were no bids at three sales. The city then by virtue of its unpaid taxes assumed ownership under Section 92.830.2, this by virtue of its unpaid taxes, interest and costs of $11,433.25.

Here Ms. Londoff contends the trial court erred in confirming the tax sale because it was not for “adequate consideration”. In response the city contends the property’s deteriorated condition warranted the trial court’s finding of adequate consideration. We summarize the evidence.

The taxed property consisted of six adjacent parcels. One was a four-unit flat, only one unit occupied. Another was a two-unit flat, one occupied. Another was a former service station now used as an auto repair shop. Still another is a former bowling alley, now roofless. The other two tracts are vacant. The lands are in a high-crime area of the city; the buildings first had been ravaged by a riot and next by a tornado. Broken windows are boarded up. Vandalism is rife in the area.

As to the property’s value Ms; Londoff testified she believed it was worth $92,000. A qualified realty appraiser valued it at $10,790; this against unpaid taxes, interest and costs of $11,433.25.

In challenging the tax sale Ms. Londoff cites Brasker v. Cirese, 269 S.W.2d 62 (Mo. banc 1954) based on the local foreclosure law governing Kansas City. So far as pertinent here that case condemns a sale for inadequate consideration when “so grossly inadequate as to shock the conscience and amount to confiscation of the property.” Considering that the tax sale here was for less than the unpaid taxes, BRASKER does not help Ms. Londoff.

More in point and decisive here is Collector of Revenue, etc. v. Parcels of Land, 616 S.W.2d 865[2] (Mo.App.1981). That was a St. Louis City sale under Section 92.700-.920 RSMo. The land owner there contended the $1,682 sale price was inadequate, but the trial court held otherwise. On appeal we held “the resolution of conflicts in evidence is for the trial court.” So it is here.

Inadequacy of consideration, standing alone, is not sufficient to justify setting aside the sale. Matter of Foreclosure of Liens, etc., 639 S.W.2d 140, 141 (Mo.App.1982).

Affirmed.

DOWD, P.J., and CRIST, J., concur.


author: KAROHL, Judge.

text:
    Loy MAXEY, Plaintiff-Respondent, v. Mark M. WENNER, Defendant-Appellant.
    No. 48504.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 13, 1985.

      William Robert Dorsey, Clayton, for defendant-appellant.
    James Vincent O’Brien, St. Louis, for plaintiff-respondent.
   KAROHL, Judge.

Defendant appeals denial of motion to set aside default judgment after an eviden-tiary hearing. The motion alleges that the cause was improperly transferred from the Circuit Court of the City of St. Louis to the Circuit Court of St. Louis County; that the transfer was accomplished without notice to defendant; and that the interlocutory and final judgments were unnoticed default judgments. The motion requested the trial court to set aside the final default judgment on the authority of Supreme Court Rules 74.31 and 74.32 and for good cause shown.

The documented events shown in the court file, minutes of proceedings and in the pleadings are as follows:

City of St. Louis Circuit Court
Date Event
July 14, 1982 Petition alleging breach of contract filed. Plaintiff business with principal office in City of St. Louis; defendant resident of St. Louis County.
July 28, 1982 Personal service on defendant in St. Louis County.
August 27, 1982 Defendant by counsel enters specifically to challenge venue; defendant files motion to quash service.
October 25, 1982 Memorandum with clerk filed. “Pursuant to defendant’s motion to quash, and by agreement of the parties, the above styled cause shall be removed to St. Louis County Circuit Court for further proceedings in this cause.” [Memorandum signed by plaintiff’s counsel only. No indication memo was sent to counsel for defendant.]
Judge’s docket sheet reads: “By consent and so ordered cause transferred to Circuit Court St. Louis County, Mo. as per memo filed.”
St. Louis County Circuit Court
Date Event
December 22, 1982 Petition filed.
October 3, 1983 Interlocutory default judgment entered as follows “This cause having come before the court, and valid service having been made upon the defendant more than thirty (30) days prior to the filing of this motion, an interlocutory judgment
Date Event
on default is hereby entered against defendant. This cause shall be set down for a hearing and trial on damages on November 10, 1983.” [Signed by plaintiffs counsel and approved by the court without indication of notice to defendant.]
November 10, 1983 Default judgment entered. “Upon hearing for default judgment, plaintiff having appeared and presented exhibits and testimony, final judgment is hereby entered in plaintiff’s favor and against the defendant in the amount of $5,400.06 Fifty-Pour Hundred and Six/Hundredths Dollars, this day November 11, 1983.” [Signed by counsel for plaintiff and approved by the court without indication of notice to defendant.]
January 20, 1984 Defendant’s motion to set aside judgment filed.
March 13, 1984 “Defendant’s motion to set aside default judgment called; evidence adduced. Defendant’s motion is hereby overruled.”
March 23, 1984 Notice of Appeal filed.

On appeal defendant contends that the Circuit Court of the City of St. Louis was without personal jurisdiction over defendant and consequently lacked authority to transfer the cause to St. Louis County and that the St. Louis County Circuit Court jurisdiction was derivative from the City of St. Louis Circuit Court proceeding and was likewise defective. Defendant also contends that the attempted change of venue by consent failed to comply with the requirements of § 508.080 RSMo 1978 because no agreement in writing was filed before the Circuit Court of the City. Appellant's final point is that he was denied procedural due process because plaintiff failed to notify him of the change of venue and subsequent proceedings.

The parties concede that when the original service in a breach of contract suit is on an individual defendant in the county of defendant’s residence which is other than that of the court the case is subject to dismissal for lack of venue. § 508.010(1) RSMo Supp.1984. Here the suit was filed in the City of St. Louis and defendant was personally served in St. Louis County, the county of his residence. On his behalf counsel filed a motion to quash solely on venue grounds.

Absent a written agreement of the parties venue in the Circuit Court of the City of St. Louis was improper and that court acquired no jurisdiction over defendant-appellant and was powerless to proceed. Dzur v. Gaertner, 657 S.W.2d 35, 36 (Mo.App.1983). In State ex rel. Coca Cola Bottling Company of Mid-America v. Gaertner, 681 S.W.2d 445 (Mo. banc 1984) the court said,

Because venue was improper, the court acquired no jurisdiction over relator [defendant] and was powerless to proceed. State ex rel. Wasson v. Schroeder, 646 S.W.2d 105, 106 (Mo. banc 1983); Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d [644] at 646-647 [Mo.App.1983]. Nor could the court transfer the case to a court of proper venue. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (1956)_ The court in Wein-stein rejected an argument that a court that lacks jurisdiction has ‘inherent power’ to transfer a case, noting the absence of statutory or case law authority for a transfer. 295 S.W.2d at 66-67-

Id. at 448. There was no issue in the Coca Cola Bottling Company case with regard to a change of venue by consent. In the present case, plaintiff-respondent contends, and the trial court concluded, that the Circuit Court of the City of St. Louis was authorized by § 508.080 RSMo 1978 and by consent of the parties to order the cause transferred to St. Louis County, Missouri.

Section 508.080 RSMo 1978 provides in relevant part:

If at any time after the commencement of a suit the parties shall agree in writing, duly filed, upon any other county or court of competent jurisdiction, to which they desire the same to be removed, it shall, by order of the court, be removed accordingly to such county or court of competent jurisdiction; and the same proceeding shall be had in all respects for the removal of such cause as are provided by law in changes of venue in civil cases, (emphasis added)

At the hearing on defendant’s motion to set aside the default judgment there was testimony that the parties had orally agreed to a change of venue from the City of St. Louis to St. Louis County. The defendant offered testimony to the contrary. The trial court must have found that there was an agreement because it denied defendant’s motion to set aside the default judgment. We conclude, however, that the filing of a court memorandum signed by only one party which refers to an oral agreement does not meet the statutory requirements of an agreement for change of venue to be in writing.

Section 580.080 RSMo 1978 authorizes removal of suits by consent only “[i]f ... the parties shall agree in writing, duly filed ...” The memorandum merely makes reference to an oral agreement and it was not signed by both parties.

It follows that if the Circuit Court of the City of St. Louis was not authorized to remove the case to St. Louis County, the Circuit Court of St. Louis County did not acquire jurisdiction over the defendant before the entry of default judgment. Accordingly, the order refusing to set aside the default judgment was erroneous as a matter of law because the default judgment was unauthorized when granted due to a lack of jurisdiction caused by ineffective transfer.

The jurisdictional defect was patent on the record. The action was filed in a county where the defendant was not a resident nor was he served there. § 508.101(1) RSMo Supp.1984. There was no written agreement indicating consent by both parties to the change of venue. Errors patent on the record are properly reviewed by a motion based upon Rule 74.32. Korn v. Ray, 434 S.W.2d 798, 801-802 (Mo.App.1968).

We reverse and remand to the Circuit Court to set aside the default judgment because of the jurisdictional defect and to dismiss without prejudice the cause of action for lack of jurisdiction. Rule 74.12.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


text:
    Treva BREWEN, et al., Plaintiffs-Respondents, v. George C. LEACHMAN, et al., Defendants-Appellants.
    No. 48678.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 19, 1985.

      Morris E. Stokes, St. Charles, for defendants-appellants.
    William R. Hirsch, St. Louis, for plaintiffs-respondents.
   KAROHL, Judge.

This is a second appeal involving plaintiffs-respondents’ suit to set aside a collector’s deed to real estate purchased by defendant-appellant Bernard Feinstein from George Leachman, Collector of Revenue of St. Louis County at a land tax sale. We held in Brewen v. Leachman, 657 S.W.2d 698 (Mo.App.1983) [Brewen 7] that the trial court correctly voided the deed. This appeal contests the manner in which the trial court implemented that decree.

The underlying facts may be found in Brevjen I. However, the details of the decree of the trial court were not made a part of the Brewen I opinion and are significant here. Defendant Feinstein, the successful bidder at the tax sale, paid the Collector $4,970. Plaintiffs were the record owners of the property before the tax sale. They deposited $4,970 into the registry of the court when they filed a petition to set aside the tax deed. The original decree disposed of these two sums as follows:

2. The sum of $4,970.00, hereinbefore paid into the Registry of the Court by Plaintiffs, is hereby ordered paid to the individual Defendants herein.
3. That the $4,970.00 hereinbefore collected by the Collector of Revenue at tax sale in August, 1980 shall be applied by the Collector as follows:
(a) Payment in full of all taxes, interest and penalties owing upon real estate described as Locator Numbers 17W510026 and 17W510037 in the Office of the Collector of Revenue, St. Louis County, Missouri.
(b) Reimbursement of any recordation costs advanced or paid by any Defendant herein, or the actual cost of any title report obtained or paid for by any said Defendant.
(c) Costs of this legal action, and all said other costs shall be borne by the Plaintiffs.
(d) Balance of funds in the hands of the Collector of Revenue, St. Louis County, to be forwarded to Hirsch & Rauscher, counsel for Plaintiffs, 7777 Bonhomme, St. Louis, MO

The original appeal by defendants, the purchasers at the tax sale, presented issues relating only to the contention of error in declaring the tax deed void. The original appeal did not contest the terms or sufficiency of the decree.

Brewen I affirmed the decree.

In order to implement the decree, defendants filed a motion requesting the following relief

... that the Court order all funds paid as consideration for said real estate at said tax sale be paid to movants, together with all taxes paid subsequent to purchase of said real estate at tax sale, together with interest thereon, and reasonable attorney’s fees in prosecution of the defense of this action, and that a lien be imposed upon said real estate for the amount of the foregoing, and that mov-ants recover their costs herein.

The trial court then entered the following order:

ORDER
The matter coming before the Court on Motion of Plaintiff to Complete Payment of Moneys Pursuant to Appellate Judgment, being Cause No. 44468, Missouri Court of Appeals, Eastern District;
It appearing to the Court that said judgment is final; now then
The Court does order, adjudge and decree
1. George C. Leachman, Collector of Revenue, St. Louis Count, [sic] shall retain and pay the following sums from moneys previously paid to him and in its [sic] possession:
2. Costs of Court to be paid by Plaintiff.
3. $165.57, being the taxes paid for 1980, 1981 and 1982, to Bernard Fein-stein, plus interest of $33.11, Total $198.68.
4. Balance to Hirsch and Rauscher, Attorneys.
5. Clerk of Circuit Court is hereby ordered to pay the sum of $4,970.00 paid into Court Registry by Plaintiffs on September 12, 1980 to Bernard Feinstein.

Defendants have again appealed contending that their motion for an order to pay out the funds was an independent civil action for which they were entitled to a change of judge; that the court erred in not granting interest on the $4,970 paid to the collector at the tax sale, and that they are entitled to attorney’s fees.

We find that the original trial court judgment was a final judgment and that the trial court was without jurisdiction to alter or change that judgment. Rule 75.01. Accordingly, we affirm that part of the second order which assigned or detailed dollar values to the judgment as originally entered. The circuit clerk shall pay to defendant Bernard Feinstein $4,970; the collector shall: retain $390.78 as taxes, interest and penalty paid at the tax sale: pay to Bernard Feinstein $165.57 as reimbursement of taxes paid by him on the real estate for the years 1980, 1981 and 1982, being part of “all said other costs” contained in Paragraph 3(c) of the original judgment; and forward the balance to counsel for plaintiffs.

State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765 (Mo. banc 1968) compels the result reached here. There a tenant sued its landlord to cancel a lease and for damages. On August 4, 1966 the trial court entered a decree declaring the lease void from and after thirty days from the date of the decree. The landlord did not appeal although an intervening assignee of defendant landlord filed a timely appeal. On December 14, 1966 defendant landlord by motion requested the court to set aside the August 4, 1966 decree because the tenant had not vacated the property. The tenant defended the motion on the ground that the August 4, 1966 judgment was a final judgment as between the tenant and the landlord. The Supreme Court noted that judgments may be characterized as final in one sense or for some purposes and not in another sense or for other purposes, 423 S.W.2d at 768, and finality in the sense that the judgment is conclusive on the parties may be delayed until a timely appeal is determined. Id. Quoting from 30A C.J.S. Equity § 582, pp. 647-649 the court said:

A decree is final when it fully decides and disposes of the whole merits of the cause, and leaves no further questions therein for the future judgment of the court, although ministerial or administrative action may be necessary in order to settle the details of the litigation or in the course of the execution of the decree, and although there are express orders or reservations in this regard_ In order to be final the decree must be complete and certain, ...; it must show intrinsically and distinctly, and not inferentially, that the matter has been adjudicated; it must contain the sentence of the law.... The court cannot, by its subsequent action, divest a decree of its character of finality. A final decree is not rendered interlocutory by the retention of the case on the docket, or by the subsequent rendition of another decree therein.

423 S.W.2d at 769. The court found that the August 4,1966 decree fully decided and disposed of the whole merits of the cause between plaintiff and his landlord and left no questions for future judgment of the court. It held that respondent judge had exhausted his authority and was without jurisdiction to change, alter or modify the August 4, judgment, or to enter another. Id. As a result the January 17, 1967 order of the court was held to be void and ordered stricken from the record. The court rejected the defendant landlord’s argument that the January 17, 1967 “judgment” was merely a construction of the August 4, 1966 judgment. .

Since the original judgment became final when affirmed in Brewen I the trial court was without jurisdiction to consider defendants’ request for interest on the $4,970 paid by defendants to the collector (between the date of payment and date of judgment), interest on the real estate taxes paid by defendants subsequent to the tax sale (to date of judgment) or attorney’s fees. Because the issues presented by defendant Feinstein in this appeal were not preserved in the original appeal as an attack on the sufficiency of the original decree the trial court was without jurisdiction to consider them in the course of implementing the decree. We do not decide whether such sums could or should have been a part of the original judgment. We do not reach defendants’ contention that interest would have been recoverable had defendants brought suit to quiet title under § 140.330 RSMo 1978 or had plaintiffs elected to redeem the property under § 140.340 RSMo 1978 because the equitable suit to set aside the deed did not rely on either of these statutory alternatives. The original decree did not provide for interest or attorney’s fees and that judgment became final by reason of our decision in Brewen I. Berbiglia, 423 S.W.2d at 768; See also State ex rel. Mason v. Schmoll, 37 S.W.2d 972, 973 (Mo.App.1931). As the trial court could not alter the order, all that remained was the enforcement of the judgment. The order of the trial court is affirmed insofar as it followed the original decree and modified as required by this opinion.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . Both statutes offer support for defendants’ view that the purchase price paid by a successful bidder at a tax sale will bear interest if the purchaser is unable to quiet title in himself under § 140.330.2 RSMo 1978 or if the property owner redeems under § 140.340.1 RSMo 1978.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Derrick ROSS, Appellant.
    No. WD 35176.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Frederick A. Duchardt, Public Defender, Liberty, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a jury conviction for two counts of armed robbery and for one count of armed criminal action. Section 569.020, RSMo 1978 and Section 571.015. Sentence was imposed by the court upon a finding that appellant was a persistent offender.

Judgment affirmed. Rule 30.25(b).


text:
    In the Interest of F.H., L.H. and K.H., Minors. Rebecca JAMES, Juvenile Officer, Respondent, v. A.H., Natural Mother, Appellant.
    Nos. WD 36058 to WD 36060.
    Missouri Court of Appeals, Western District.
    March 5, 1985.
    John L. Port, Windsor, for appellant.
    Wayne P. Strothmann, Clinton, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM:

Consolidated appeal from juvenile court order placing minor children in custody of maternal grandmother under supervision of Division of Family Services.

Affirmed. Rule 84.16(b).


author: PRITCHARD, Presiding Judge.

text:
    John HAYNES and Beverly Spainhour, Appellants, v. Everett WILLIAMS, both personally and as Executor of the Estate of Clarence Williams, Deceased, and Julia Shipp and Mildred Mantzey, Respondents.
    No. WD 35505.
    Missouri Court of Appeals, Western District.
    Feb. 19, 1985.
    John Franken, Carrollton, Harold L. Henry, West Plains, for appellants; Franken, Bryant & Franken, Carrollton, Henry, Henry & Henry, West Plains, of counsel.
    Lloyd A. Cleaveland and James P. Val-bracht, Chillicothe, for respondents; Cleaveland, Macoubrie, Cox & Yalbraeht, Chillicothe, of counsel.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   PRITCHARD, Presiding Judge.

The issue is whether a sister, Katie Irene Haynes, of Clarence Williams, deceased, whose death in 1957 was known to him at the time he executed his will on May 10, 1963, was a member of the class of his “brothers and sisters” in Article Third of the Will, so that her children, appellants John Haynes and Beverly Spainhour, would take her share as substituted distributees and devisees, as they contend.

At the time of his death, November 11, 1982, Clarence Williams was survived by his brother and sisters, respondents Everett Williams, Julia Shipp and Mildred Mant-zey, whom the trial court ruled were the sole residuary beneficiaries under Article III of the will. According to the appraisals in the amended inventory, contained in the legal file, Clarence Williams died seized of interests in real and personal property valued at $797,289.75.

Article Second of the will is: “I give to my brother Everett Williams all real estate, machinery, livestock, feed and grain that I may own or have any interest in at the time of my death.” Article Third, which is here in controversy, is: “All the rest, residue and remainder of my estate I give in equal shares to my brothers and sisters.” Appellants, if they should prevail, would take only a portion (one-eighth each) of the residuary estate not specifically devised to testator’s brother, Everett Williams.

Appellants’ reliance upon Zombro v. Moffett, 44 S.W.2d 149 (Mo.1931), is misplaced as it is distinguishable on the provision of the will, and an agreed statement of facts. There the residuary clause of the will devised and bequeathed the remainder of the estate to brothers and sisters in equal parts, and in case of the death of any one or more of the brothers or sisters prior to testator’s demise, their portion was to be divided and distributed among the lineal descendants of the said deceased brothers and sisters, per stirpes. The present will of Clarence Williams contains no gift over in the event of the prior demise of a member of the class, as does Moffett’s will, as italicized above. In addition to Moffett’s gift over in the event of the prior death of brothers or sisters, there was agreed evidence that although his sister, Agnes Mof-fett Mott, died about 30 years prior to the execution of his will, there was a relation between the two of mutual love and affection. Agnes’ daughter, the plaintiff, was but about nine years old at the time of her mother’s death, and was 39 years old at the time of testator’s death. Testator had known plaintiff since she was a little girl; she had lived some years in the same household and was thereafter a frequent visitor to the household; and the relation between them, as with all other nephews and nieces, was one of affection and kind treatment, and there was no apparent reason for testator to disinherit plaintiff in the residuary clause of the will. It was held that considering the will from its four corners, and all of the circumstances attending its execution, plaintiff was entitled to take testator’s predeceased sister’s share as her lineal descendant, considering also the then anti-lapse statute. Section 527, RSMo 1929. The Zombro court gave effect: to the 1929 statute, Section 527, saying that it applied to the lineal descendants of a deceased member of a class of legatees or devisees, whether the death occurred before or after the execution of the will; to the express terms of the residuary clause providing that if one or more of the brothers or sisters died prior to testator’s demise, the portion to which deceased members would be entitled should be divided among the lineal descendants, per stirpes; and to the relation of love and affection between testator and respondent, and all his nieces and nephews.

The lengthy opinion in Stolle v. Stolle, 66 S.W.2d 912 (Mo.1933), has a will provision similar to that of Article Third of Clarence Williams’ will here. Testator, Casper Stolle, had a son, Henry, Sr., who died 20 years before Casper executed his will. In Paragraph Third, he gave $5.00 each to his “beloved children”, eight in number (a son, Conrad, having died without lineal descendants before Casper, and thus, as the opinion notes, dropped out of the picture). Then the residuary clause gave a life estate to his wife, and after her death, the remaining part of the estate was to be divided in equal parts to his “said children above named.” Plaintiff’s father, Henry, Sr., was not anywhere named as a legatee or devisee, or as Casper’s child, except as being his deceased son, the father of plaintiff who claimed a one-eighth share of the residuary estate by reason of the then anti-lapse statute, § 527, RSMo 1929. The court held that the anti-lapse statute did not “undertake to determine whether or not the will in question does or does not in fact devise an estate to a particular child or relative. It operates only on a devise which is in fact made to a child or relative.” 66 S.W.2d at 914[2, 3]. The court there also noted that a conveyance, whether by deed or will or otherwise, to a dead person is void, and that under an anti-lapse statute, the descendants or relatives of a (deceased) devisee or legatee do not take by representation, but as substituted beneficiaries.

The Stolle court, construing the will as a whole, held that the testator did not intend that his grandson, the plaintiff, should take a child’s part as substituted devisee for his deceased father. In so doing, it relied upon Downing v. Nicholson, 115 Iowa 493, 88 N.W. 1064 (1902), where the residuary was to his “nephews and nieces” share and share alike. Testator had a grandnephew whose mother had been dead for more than 10 years, and the several nephews and nieces were living at the time he made his will. The Iowa court said, “ ‘But where the gift is to a class, of which there are many members, it is reasonable to suppose that the testator had in mind only those of that class who were living at the time he made his will’ ”, and “ ‘If he had intended to include the grandnephew, we think it more likely that he would have named him.’ ” Stolle, at page 917, where the court said also, “Had testator intended that his grandson should take a share equal to that of a living child, it would have been easy and natural for him to have said in the fifth clause, ‘shall be divided between my said children and grandson above named.’ ” At pages 917 through 919 of the Stolle case, several cases are cited holding that the descendants of relatives who were dead at the time the will was made were entitled to be substituted under the anti-lapse statutes, which cases were decided under the rule that the intention of the testator governs and is to be arrived at by reading the entire will in the light of the attendant facts and the principles and policies of the law. Among those cited cases is the Zomb-ro case, supra. The Stolle case is controlling as to the disposition of this appeal.

At page 920[12], the Stolle opinion notes that an ambiguity is created as to whether the testator intended to include the deceased member of the class in the devise; that the ambiguity is not solved by the anti-lapse statute [now § 474.460, RSMo., Amended by L.1980, p. 484, § 1, eff. Jan. 1, 1981]; but is solved by ascertaining the true intention of the testator from the whole will and relevant facts. The only thing that appears here as to a pertinent fact, is that Clarence Williams knew that his sister, Katie, had died in 1957, before he made his will. There is no indication, by the introduction of relevant facts, that testator ever intended to make appellants substituted beneficiaries (as he could easily have done) in the place of their deceased mother, who was not specifically named in the will. The trial court did not err in ruling that respondents were the sole residuary beneficiaries under Article III of the will.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. R.J. PERKINS, Appellant.
    No. 48592.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Winston V. Buford, Eminence, for appellant.
    David R. Orzel, Asst. Pros. Atty., Farm-ington, for respondent.
   CLEMENS, Senior Judge.

This appeal challenges evidence of truck speed shown by an electronic radar detector.

Defendant appeals from a jury-waived trial and judgment. The state had charged speeding on a public highway. § 314.010 RSMo. Defendant offered no evidence.

The state’s evidence was by a highway patrolman. He had said in a deposition he saw defendant driving fast toward him and then turned on his radar unit. It showed defendant’s speed was 69 m.p.h. The unit had been regularly tested and found accurate by the state’s radar expert.

Defendant contends the patrolman had not turned on his radar detector until five seconds after first seeing defendant’s approaching truck; if so, by then defendant would have passed out of the radar’s range. In this defendant relies on the officer’s deposition statement and ignores his trial testimony.

At the deposition on cross-examination, in response to leading questions, the officer had said after he first saw defendant’s truck it could have been approximately five seconds until he activated the radar. Responding to the mention of this, at trial the patrolman explained that since giving his deposition he had checked on the time and found that it did not take five seconds to activate his radar.

The trial evidence refuted defendant’s contention: The officer said it took less than a second to activate the radar and he did so when defendant was coming toward him about 100 yards away and “the radar unit indicated the target speed of sixty-nine miles an hour...” That was the critical fact here.

The trial court accepted this explanation and found defendant had been driving at an unlawful speed. As held in State v. Cole, 662 S.W.2d 297[1] (Mo.App.1983) on appeal we are bound to consider the favorable state’s evidence as true and disregard evidence and inferences to the contrary. So considered, we deny defendant’s argument.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


text:
    Laurie A. McMENAMY, Plaintiff-Appellant, v. Laurine MAIN and Robert S. Maher, Defendants-Respondents.
    Nos. 48624, 48617.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 26, 1985.
    Charles J. McMullin, St. Louis, for plaintiff-appellant.
    Robert R. Sandcork, Clayton, for defendant-respondent Main.
    Tyree C. Derrick, St. Louis, for defendant-respondent Maher.
   GAERTNER, Judge.

Plaintiff, Laurie A. McMenamy, commenced this action in the Circuit Court of St. Louis County, Division No. 33 (a division presided over by an associate circuit judge) seeking $925.00 for damage to her parked Karmann Ghia automobile which had been struck by the automobile of defendant Maher after an intersection collision between that vehicle and the automobile of defendant Main. Main and Maher crossclaimed against each other. After a hearing before an associate circuit judge, judgment was entered in favor of plaintiff for $925.00 against defendant Main and in favor of defendant Maher for $800.00 on his crossclaim against Main. An application for a trial de novo was filed by defendant Main. Subsequently, plaintiff was granted leave to increase the prayer of her petition for $5,000.00. However, on the day the trial de novo commenced, the trial court sustained a motion to strike this amendment on the grounds that § 512.280, RSMo.1978, prohibits amendments to the pleadings on trial de novo. A jury trial resulted in verdicts in favor of plaintiff and against defendant Main with plaintiff’s damages assessed at $4,650.00 and in favor of Maher on his crossclaim against Main in the sum of $1,025.00 with fault apportioned between these two at 80% Main and 20% Maher. Judgment was then entered in favor of plaintiff for $925.00 and in favor of defendant Maher in the sum of $820.00. Plaintiff appeals from the $925.00 judgment contending the court erred in striking the amendment to her pleadings, and defendant Main appeals from the judgment in favor of Maher.

“The same cause of action, and no other, that was tried before the associate circuit judge, shall be tried before the judge upon the trial de novo_” § 512.280, RSMo. 1978. This statutorily mandated rule was applicable to the former magistrate courts and the justice of the peace courts. § 512.280, RSMo.1969 (Magistrate); Section 2358, RSMo.1929 (Justice of the Peace). The trial court and defendant Main relied upon two decisions of the former St. Louis Court of Appeals as support for the proposition that this statute prohibited the amendment of the prayer for damages on trial de novo. Wehringer v. Ahlemeyer, 23 Mo.App. 277 (1886); Brennan v. McMenamy, 78 Mo.App. 122 (1899). This case is controlled by neither Brennan nor Wehringer; the latter is distinguishable and the former is overruled.

The plaintiff in Wehringer filed suit in the justice of the peace court on an open account alleging a balance due of $187.50. After judgment for plaintiff, defendant appealed to the circuit court. In the circuit court, plaintiff withdrew his claim on the open account tried before the justice, and proceeded on the basis of an agreed upon account stated in the amount of $200.00. A jury was instructed that if they believed plaintiff and defendant had agreed upon an amount due, they should return their verdict in that amount. The verdict awarded plaintiff $100.00. The court of appeals, after noting the change in the amount demanded and the change from an open account to an account stated effected a different cause of action from that tried before the justice, held that reversal was mandated because the amount of the verdict showed the jury had disregarded the instruction, “[wjhether there was, or was not, error in the previous proceedings....” Id. at 281.

In Brennan the plaintiff, suing on an account, amended his petition while on appeal from the justice of the peace court merely by increasing the amounts claimed on certain items of damage. Relying upon the dicta in Wehringer, the court of appeals reversed, holding the change from a demand of $210.00 to one of $307.50 “changed the identity of the account; changed the cause of action_” 78 Mo. App. at 130.

Plaintiff relies upon the decision of the Kansas City Court of Appeals in Ralston Purina Company v. Swaithes, 142 S.W.2d 340 (Mo.App.1940), wherein an increase in the amount of damages made after appeal from the justice of the peace court was approved where the plaintiff had proceeded in both the justice court and the circuit court on the theory of breach of warranty. “The amount to be recovered for breach of warranty, whether much or little, was no part of the cause of action, hence increasing the amount did not change the cause of action.” Id. at 341-42. We believe the opinion of the Kansas City Court of Appeals accurately reflects the more modern approach. It has been consistently held that under our contemporary form of code pleading, the prayer is not a part of a petition. LaPresto v. LaPresto, 285 S.W.2d 568, 571 (Mo.1955); Salmons v. Dun & Bradstreet, 349 Mo. 498, 162 S.W.2d 245, 252 (1942); Stephenson v. McClure, 606 S.W.2d 208, 213 fn. 13 (Mo.App.1980); Household Finance Corporation v. Avery, 476 S.W.2d 165, 167 (Mo.App.1972). The latter case contains an appropriate statement of the modern rule: “The character of a cause of action must, of course, be determined from the facts stated in the petition and not by the prayer or the name given the action by the pleader. [citations omitted].”

In this case, plaintiffs cause of action was for property damage caused by the alleged negligence of the defendants. The same cause of action based upon the same theory and supported by the same ultimate facts alleged was tried in the original proceeding and in the trial de novo. A difference in the amount of property damage pleaded and proven alters neither the cause of action nor the theory of recovery. We find no violation of § 512.280 from the mere change in the amount of damages prayed for and proven.

In ruling that an increase in the amount prayed for does not change a cause of action, we are not unmindful of the fact that the jurisdiction of the division of the circuit court when hearing a trial de novo is purely derivative, conferring upon that division no greater jurisdiction than that possessed by the division of the circuit court in which the case was originally filed and heard. Swetnam v. U.S. By-Products Corporation, 510 S.W.2d 829, 831 (Mo.App.1974). Therefore, an attempt to increase the prayer beyond the jurisdictional limit of the court in which the case was filed could not be permitted. Any judgment on trial de novo in excess of such jurisdictional limits could not stand. Id. Here, however, the jurisdictional limit of the division of the circuit court presided over by an associate circuit judge was $5,000.00. Had the amendment increasing the prayer of plaintiffs petition been made during the original proceeding, it would have been within the jurisdiction of the court. Since that court had jurisdiction to act to the extent of $5,000.00, and since the cause of action remains the same, the court on trial de novo had similar jurisdiction.

It follows that the trial court erred in striking the amendment increasing the prayer for damages. To the extent that the dicta in Wehringer v. Ahlemeyer, supra, and the decision in Brennan v. McMenamy, supra, differ from this opinion, they should no longer be followed.

The motion to strike the amendment was granted immediately before the trial commenced, thus giving defendant Main no incentive to contradict plaintiff’s evidence of the increased amount of damages. Although we infer from the jury verdict in favor of plaintiff for $4,650.00 that the jury heard evidence which supported the amended prayer, we do not know whether defendant Main bothered to controvert this evidence because the transcript is incomplete in that only the testimony of defendant Main herself was included. Instead of reversing the judgment and ordering judgment entered in accordance with the verdict of the jury, we reverse the judgment in favor of plaintiff and against Main and remand for a new trial on the issue of plaintiffs damages only, so that the trier of fact may hear evidence on both sides of this issue.

II

On appeal from the judgment on Maher’s crossclaim, defendant Main contends the trial court erred in submitting plaintiff’s and Maher’s verdict directing instructions because the evidence did not support the omission of the finding of a likelihood of collision. See e.g. Hawkeye-Security Insurance Company v. Thomas Grain Fum. Co., 407 S.W.2d 622 (Mo.App.1966). This appeal must be dismissed because defendant Main has filed only the transcript of her own testimony. The determination of whether evidentiary support exists for a jury instruction depends upon a complete record of all the evidence. The responsibility of preparing an adequate record on appeal rests with the appellant. Brummit v. O’Fallon Brothers Construction Company, 671 S.W.2d 441, 442 (Mo.App.1984).

The judgment in favor of plaintiff and against defendant Main is reversed and plaintiff’s cause of action is remanded for a new trial on the issue of damages only. Defendant Main’s appeal is dismissed.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . In so ruling we do not intend to indicate our agreement with plaintiff’s third Point Relied On: "THE TRIAL COURT ERRED IN ASSIGNING AN IMPROPER AMOUNT OF IMPORTANCE TO AUTHORITIES DECIDED IN THE MISSOURI COURT OF APPEALS, ST. LOUIS DISTRICT, WHILE RELEGATING TO A LESSER DEGREE OF IMPORTANCE THOSE AUTHORITIES RELIED UPON BY APPELLANT WHICH WERE DECIDED IN THE MISSOURI COURT OF APPEALS, KANSAS CITY DISTRICT." Since this contention is totally unsupported by the record, we resist the temptation to comment upon the quality of the judgment exercised by the trial court if the contention were accurate. Moreover, in view of the unification of the former districts of the court of appeals into a single court, the ancient bromide "that may be the law in Kansas City but it ain’t the law in St. Louis” will hopefully be lost in antiquity.


text:
    In re the Marriage of Ruth Susan TRAPANI, Respondent, v. Carmelo Mario TRAPANI, Appellant.
    No. 48665.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 26, 1985.

      Nicholas J. Riggio, St. Louis, for appellant.
    John A. Turcotte, St. Louis, for respondent.
   KAROHL, Judge.

Appellant husband appeals from a circuit court order that awarded respondent wife $3,500 on account for attorney fees on husband’s appeal in dissolution case. Attorney fees were not awarded in the original decree.

On August 5,1983 the marriage of appellant and respondent was dissolved. On November 14, 1983 appellant filed a notice of appeal challenging the circuit court’s inclusion and division of certain assets of marital property. See 684 S.W.2d 500. On January 11, 1984 respondent filed a motion for attorney fees and costs for post-trial proceedings and on appeal. On January 31, 1984 respondent’s motion was called, heard and submitted. No evidence was presented by either party and no transcript of the hearing was made.

On May 2, 1984 the circuit court ordered appellant to pay respondent $3,500 for attorney fees on account for the appeal and this appeal followed.

The issue on appeal is whether the trial court had sufficient evidence to award attorney fees on account for appeal when it denied attorney fees for services in the original trial and no evidence was presented in support of the motion.

Attorney fees may be awarded by the trial court after considering all relevant factors. § 452.355 RSMo 1978. The award is discretionary and reviewable only for abuse. Nowels v. Nowels, 637 S.W.2d 163, 166 (Mo.App.1982); Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo.banc 1979). An appeal is a distinct stage in the proceeding for which attorney fees may be granted. The denial of attorney fees for the trial is not controlling. Potter v. Desloge, 625 S.W.2d 927, 930 (Mo.App.1981). Courts are themselves experts on the subject of attorney fees and this expertise extends to the value of appellate services. Cascio v. Cascio, 485 S.W.2d 857, 861 (Mo.App.1972).

Appellant argues that no evidence was presented to the trial court to support respondent’s motion for attorney fees on appeal. He further contends that the trial court failed to consider all relevant factors in compliance with § 452.355 RSMo 1978 before it ordered the award and therefore abused its discretion.

It was encumbent upon respondent when asking for attorney fees on appeal “to show the extent of the necessary services to be rendered by her counsel, and expenses instant thereto, so that the trial court could make an award, at least in part, based on evidence of such services and expenses, and so the appellate court could examine such evidence, in connection with other relevant circumstances, in gauging the propriety of the trial court’s discretionary action.” Jeans v. Jeans, 300 S.W.2d 870, 873 (Mo.App.1957). In conjunction with the respondent’s burden to show the nature and extent of services yet to be rendered, the trial court may take judicial notice of the principal action in its determination of attorney fees on appeal. Cascio, 485 S.W.2d at 860, 861.

The factors to be considered are more than merely the economic circumstances of the parties. See Kieffer, 590 S.W.2d at 918. Taking into consideration all relevant factors, the trial court had before it all the evidence presented in the dissolution action and respondent’s motion for attorney fees and costs to cover post-trial services and for the appeal. The motion was supported by an affidavit of respondent’s counsel stating “the services that affiant will be required to perform in representing [respondent’s] interests on [appellant’s] appeal include a review of the trial transcript and legal file, legal research on the issues raised by [appellant], the drafting and preparation of an appellate brief and the preparation and presentation for oral argument ... the reasonable hourly rate for services provided by affiant on behalf of [respondent being] $75.00 per hour.” At the hearing on respondent’s motion appellant offered no evidence to rebut respondent’s claim for attorney fees.

Applying the foregoing principles to the record facts we conclude that the trial court’s award of attorney fees on account for appeal was not an abuse of discretion. The trial court is not limited to a consideration of the financial resources of the parties. Kieffer, 590 S.W.2d at 918.

Judgment affirmed.

PUDLOWSKI, P.J., and GAERTNER, J., concur.