author: THE COURT. WINTERSHEIMER, Justice,

text:
    Edward A. FARRIS, Commissioner, Division of Alcoholic Beverage Control, et al., Appellants, v. MINIT MART FOODS, INC. NO. 37, Appellee.
    Supreme Court of Kentucky.
    Dec. 20, 1984.
    Petition for Modification Denied Feb. 28, 1985.
    Catherine C. Staib, Frankfort, for appellants.
    William A. Young, Larry Cleveland, Greenebaum, Young, Treitz & Maggiolo, Frankfort, for appellee.
   OPINION OF

THE COURT.

An application for a retail beer license was filed with the Department of Alcoholic Beverage Control by Minit Mart Foods, Inc., which is located approximately 91 feet from the Church of God, Lawrenceburg, Kentucky. The church filed a protest with the Department of Alcoholic Beverage Control within the ten-day limit imposed by KRS 243.220(3)(a), and based solely upon the protest filed by the church, the request for the license was denied. On appeal, the Board upheld the Administrator’s refusal citing KRS 243.220(3)(a). Minit Mart appealed to the Franklin Circuit Court which entered a summary judgment for Minit Mart, ruling that KRS 243.220(3), as it relates to churches, is unconstitutional under the United States Supreme Court decision in Larkin v. Grendel’s Den, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). Appeal was taken to the Court of Appeals, and because of the statewide importance of the issue, this court granted transfer.

In Larkin the United States Supreme Court found the Massachusetts statute (similar to KRS 243.220) to be in violation of the Establishment Clause of the First Amendment to the United States Constitution. Section 16C of Chapter 138 of the Massachusetts General Laws provided:

Premises ... located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.

The United States Supreme Court premised its review of the statute on the grounds the Massachusetts Supreme Judicial Court ruled that the Massachusetts legislature had delegated its decision making power to nongovernmental entities even though the Massachusetts Court ruled it was not an unconstitutional delegation of authority. The Supreme Court stated in Larkin:

Plainly schools and churches have a valid interest in being insulated from certain kinds of commercial establishments, including those dispensing liquor. Zoning laws have long been employed to this end, and there can be little doubt about the power of a state to regulate the environment in the vicinity of schools, churches, hospitals and the like by exercise of reasonable zoning laws....
The zoning function is traditionally a governmental task requiring the ‘balancing [of] numerous competing considerations,’ and courts should properly ‘refrain from reviewing the merits of [such] decisions, absent a showing of arbitrariness or irrationality.’ (Citations omitted). Given the broad powers of states under the Twenty-First Amendment, judicial deference to the legislative exercise of zoning powers by a city council or other legislative zoning body is especially appropriate in the area of liquor regulation. (Citations omitted).
However, Sec. 16C is not simply a legislative exercise of zoning power. As the Massachusetts Supreme Judicial Court concluded, Sec. 16C delegates to private, nongovernmental entities power to veto certain liquor license applications, Arno v. Alcoholic Beverages Control Commission, supra, 377 Mass. [83] at 89 [384 N.E.2d 1223 (1979)]. This is a power ordinarily vested in agencies of government. See, e.g., California v. Larue, supra, 409 U.S. [109], at 116 [93 S.Ct. 390, at 396, 34 L.Ed.2d 342 (1972) ], commenting that a ‘state agency ... is itself the repository of the State’s power under the Twenty-First Amendment.’
[H]ere, of two classes of institutions to which the legislature has delegated this important decisionmaking power, one is secular, but one is religious. Under these circumstances, the deference normally due a legislative zoning judgment is not merited.

This court addressed the issue of whether the legislature improperly delegated its authority in an earlier version of KRS 243.-220(3), but it did not address the Establishment Clause issue. In Beacon Liquors v. Martin, 279 Ky. 468, 131 S.W.2d 446 (1939), we stated:

Appellant next contends that the Act by permitting churches, schools, and hospitals to give their written consent for a liquor outlet to be established on the same street, or avenue, and with 200 feet of such institutions, amounts to a delegation of power given them by the Legislature. On this subject, 15 R.C.L. 304, says: Provisions for consent to, or remonstrance against, licenses, by residents or property owners within a certain area in which the proposed saloon is to be operated, bears, something of a resemblance of local option legislation and have been uniformly upheld. Such a provision does not unlawfully delegate power to grant licenses, or make an arbitrary or unjust discrimination between applicants nor is it objectionable as conferring arbitrary powers on property owners.’ id, 131 S.W.2d at 450.

This court acknowledges that KRS 243.-220(3) is on its face constitutionally indistinguishable from the Massachusetts statute. KRS 243.220(3)(a) states in pertinent part:

Except as provided in paragraphs (b) and (c) of this subsection, no license for the sale of alcoholic beverages at retail shall be issued for any premises that are located within two hundred (200) feet of a building used primarily as a church or for classrooms of a school, if the governing authority of the church or school, within ten (10) days after receiving notice of the application for the license, files written protest with the state administrator against the issuance of the license

The issue before this court is the applicability of Larkin to KRS 243.220(3) in the context of this court’s previous ruling that a similar statute did not delegate legislative authority to a nongovernmental entity. Coextensive with this issue is whether this court’s decision in Beacon Liquors v. Martin, supra, will insulate KRS 243.220(3) from the assault of Larkin.

It is argued that the United States Supreme Court in Larkin conclusively relied upon the Massachusetts Supreme Judicial Court’s holding that Sec. 16C delegated veto power to a nongovernmental entity, and certain statements in Larkin may cause some to think that Larkin is based solely upon that finding. If this were so, it would then be a simple task to ignore the holding of Larkin since our holding in Beacon Liquors that a statute similar to 16C was not an unlawful delegation of power. Unfortunately the United States Supreme Court in Larkin does not leave us with this simple solution since they go on at great length to make an independent analysis as to whether a statute of this import (either Sec. 16C of Chapter 138 of the Massachusetts General Laws or KRS 243.220(2) violates the establishment clause of the First Amendment and in furtherance of this discussion, states 459 U.S. at page 122-27,103 S.Ct. at page 510-512 as follows:

The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other Eighteenth Century systems. Religion and government, each insulated from the other, could then coexist. Jefferson’s idea of a ‘wall,’ see Reynolds v. United States, 98 U.S. (8 Otto) 145, 164 [25 L.Ed. 244] (1878), quoting Reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1, 1802), reprinted in 8 Works of Thomas Jefferson 113 (Washington ed. 1861), was a useful figurative illustration to emphasize the concept of separateness. Some limited and incidental entanglement between church and state authority is inevitable in a complex modern society, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614 [91 S.Ct. 2105, 2112, 29 L.Ed.2d 745] (1971); Walz v. Tax Commission, 397 U.S. 664, 670 [90 S.Ct. 1409, 1412, 25 L.Ed.2d 697] (1970), but the concept of a ‘wall’ of separation is a useful signpost. Here that ‘wall’ is substantially breached by vesting discretionary governmental powers in religious bodies.
This Court has consistently held that a statute must satisfy three criteria to pass muster under the Establishment Clause:
First, the statute must have a Secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster ‘an excessive government entanglement with religion.’
Lemon v. Kurtzman, supra, 403 U.S., at 612-613 [91 S.Ct., at 2111], quoting Waltz v. Tax Commission, supra, 397 U.S., at 674 [90 S.Ct., at 1414], See also Widmar v. Vincent, 454 U.S. 263, 271 [102 S.Ct. 269, 275, 70 L.Ed.2d 440] (1981); Wolman v. Walter, 433 U.S. 229, 236 [97 S.Ct. 2593, 2599, 53 L.Ed.2d 714] (1977). Independent of the first of those criteria, the statute, by delegating a governmental power to religious institutions, inescapable implicates the Establishment Clause.
The purpose of Sec. 16C, as described by the District Court, is to ‘protect [] spiritual, cultural, and educational centers from the “hurly-burly” associated with liquor outlets.’ [Grendel’s Den, Inc. v. Goodwin ] 495 F.Supp. [761], at 766 [(1980)]. There can be little doubt that this embraces valid secular legislative purposes. However, these valid secular objectives can be readily accomplished by other means — either through an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals and like institutions,’ or by ensuring a hearing for the views of affected institutions at licensing proceedings where, without question, such views would be entitled to substantial weight.
Appellants argue that Sec. 16C has only a remote and incidental effect on the advancement of religion. The highest court in Massachusetts, however, has construed the statute as conferring upon churches a veto power over governmental licensing authority. Section 16C gives churches the right to determine whether a particular applicant will be granted a liquor license, or even which one of several competing applicants will receive a license.
The churches’ power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors; it could be employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith. We can assume that churches would act in good faith in their exercise of the statutory power, see Lemon v. Kurtzman, supra, 403 U.S. at 618-619 [91 S.Ct. at 2113-2114], yet Sec. 16C does not by its terms require that churches’ power be used in a religiously neutral way. ‘[T]he potential for conflict inheres in the situation,’ Levitt v. Committee for Public Education, 413 U.S. 472, 480 [93 S.Ct. 2814, 2819, 37 L.Ed.2d 736] (1973); and appellants have not suggested any ‘effective means of guaranteeing’ that the delegated power ‘will be used exclusively for secular, neutral, and nonideological purposes.’ Committee for Public Education v. Nyquist, supra, 413 U.S. [756], at 780 [93 S.Ct. 2955 at 2969, 37 L.Ed.2d 948 (1973)]. In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the statute can be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.
Turning to the third phase of the inquiry called for by Lemon v. Kurtzman, supra, we see that we have not previously had occasion to consider the entanglement implications of a statute vesting significant governmental authority in churches. This statute enmeshes churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause; ‘[t]he objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other.’ Lemon v. Kurtzman, supra, 403 U.S., at 614 [91 S.Ct., at 2112]. We went on in that case to state:
Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.
403 U.S., at 625 [91 S.Ct., at 2117] (emphases added).
Our contemporary views do no more than reflect views approved by the Court more than a century ago:
The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.
Watson v. Jones, 80 U.S. (13 Wall.) 679, 730 [20 L.Ed. 666] (1871), quoting Harmon v. Dreher, 2 Speer’s Equity Reports 87, 120 (S.C.Ct.App.1843).
As these and other cases make clear, the core rationale underlying the Establishment Clause is preventing, ‘a fusion of governmental and religious functions.’ School District of Abington Township v. Schempp, 374 U.S. 203, 222 [83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963)]; Watz v. Tax Commission, supra, 397 U.S. [664] at 674-75 [90 S.Ct. 1409, 1414, 25 L.Ed.2d 697]; Everson v. Board of Education, 330 U.S. 1, 8-13 [67 S.Ct. 504, 507-510, 91 L.Ed. 711] (1947). The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.
Section 16C substitutes the unilateral and absolute power of a church for the reasoned decision-making of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of ‘[political fragmentation and divisiveness along religious lines,’ Lemon v. Kurtzman, supra, 403 U.S., at 623 [91 S.Ct. at 2116]. Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution.

From the foregoing language of Larkin we must conclude that our interpretation of KRS 243.220 in Beacon Liquors is invalid and because of the synonymous nature of KRS 243.220(3) to Sec. 16C of Chapter 138 of the Massachusetts General Laws and the analysis of Larkin, KRS 243.220(3) is unconstitutional as being in violation of the Establishment Clause of the First Amendment. Had the statute in question included standards for application or provided for an absolute ban, the result may have been different.

The desirability of this result is certainly to be questioned, but we are compelled to follow Larkin.

The judgment of the Franklin Circuit Court is affirmed.

STEPHENS, C.J., and AKER, GANT and LEIBSON, JJ., concur.

STEPHENSON, VANCE and WINTER-SHEIMER, JJ., dissent.

WINTERSHEIMER, J., files a dissenting opinion in which STEPHENSON, J., joins.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because I do not believe the case of Larkin has any application to the Kentucky statute as interpreted by the Kentucky Supreme Court in Beacon, supra.

KRS 243.220(3) has been the law of the Commonwealth for many years. The Federal case, Larkin, in which a 500-foot rule in Massachusetts was found to be in violation of the Establishment Clause of the First Amendment of the United States Constitution, does not apply to the Kentucky situation. In Larkin, a majority of the U.S. Supreme Court specifically stated that it was expressing an opinion only as to the constitutionality of the Massachusetts statute. The Federal Supreme Court relies on the construction of Massachusetts law by the highest court in that state as giving churches veto power over licensed liquor premises. This construction has not been placed on KRS 243.220(3). In 1939, this Court ruled that there was no delegation under the Kentucky system. Beacon, supra.

It is my opinion that the Kentucky General Assembly has the right to properly exercise police powers and if it chooses, create a zone free from alcoholic beverages to continue to exist around church buildings where they are so desired. The free-zone created by the Kentucky law permits a happy compromise between those who wish to purchase alcohol and those who do not desire to have it within a specified area near their churches. In addition, it gives the opportunity and the local option to those churches who do not object to a liquor establishment or who wish to hold a retail alcoholic beverage license on their own premises. The Kentucky law is clearly a live-and-let-live arrangement that does not interfere unnecessarily with anyone’s rights. In this case the church was established in the community before the intrusion of the liquor dispensary as an addition to a convenience store.

In Larkin, the United States Supreme Court builds a wall of separation between church and state much higher than had ever been contemplated by the simple language of the First Amendment.

The wall of separation should not become a spite fence. We have frequently heard the expression that we should render to Caesar or the State the things that are Caesar’s and to God the things that are God’s. Separation should not bring division. Both the State and the Church were established to serve people and not to oppress them, or to conflict with each other. Jefferson said that no man should suffer because of his religious beliefs. The law and our constitutional system cannot be bias in such matters. It must be a civil means for providing liberty within the framework of the law.

Liberty is a two-way street. Some need the convenience of a liquor dispensary while others do not. It is simply a matter of taste. The law should not be invoked unless there is a fundamental right at issue. Here the true purpose of the law is to preserve the right to be left alone, a basic right of privacy.

Any liquor store is a government-controlled business function. A total ban on such establishments might pass technical constitutional muster, but it would unduly harass those individuals who might be welcomed into an area by their neighbors. Extremes should always be avoided. The Kentucky practice of local option in such a sensitive matter presents a reasonable compromise which has stood the test of time and the legal challenge. It should be continued.

It is my opinion that Kentucky law does not require the result reached by the majority.

STEPHENSON, J., joins in this dissent.

      . The Supreme Judicial Court of Massachusetts in Arno v. Alcoholic Beverages Control Com'n., 377 Mass. 83, 384 N.E.2d 1223, states 384 N.E.2d at page 1227 that, "... the Legislature's delegation in Sec. 16C of a veto power to the institutions most directly representing the interests it seeks to protect falls within permissable constitutional limits.” This statement validates the notion that they did in fact recognize Sec. 16C as delegating veto power to the churches. However, they then continued their analysis and concluded that it was not an unlawful delegation of power and cited Beacon Liquors v. Martin, 279 Ky. 468, 131 S.W.2d 446 (1939) as authority for that proposition.


source: Caselaw Access Project

author: CLAYTON, Judge.

license: Public Domain

text:
    George A. ADKINS, Appellant, v. Earl M. CORNETT, Warren J. Mullins, Harbert Construction Co., and Star Fire Coal Co., Inc., Appellees.
    Court of Appeals of Kentucky.
    Feb. 15, 1985.

      Clifford B. Latta, Prestonsburg, for appellant.
    Woodrow W. Burchett, Burchett & Barber, Prestonsburg, Ronald G. Combs, Hazard, for appellees.
    Before CLAYTON, MILLER and MCDONALD, JJ.
   CLAYTON, Judge.

George Adkins appeals from a summary judgment of the Floyd Circuit Court dismissing his action for specific performance of a verbal contract. As Adkins describes the terms of that oral contract, he was to have received payment of an “overriding royalty” of $.15 (fifteen cents) per ton of coal loaded at a tipple on James Allen’s property at Right Beaver Creek, Floyd County, Kentucky. This amount was allegedly due in exchange for his services in arranging for the Allens to lease the 40 acre tract to Earl M. Cornett and Warren J. Mullins. Though the lower court does not expressly set forth its reasons for dismissing, it apparently concluded that the oral contract alleged contravened the statute of frauds, KRS 371.010(6) and (8), and KRS 324.020(1), prohibiting unlicensed persons from acting as real estate brokers. Although we agree with the first proposition, we must reverse for the reasons set out below.

George Adkins is a coal buyer employed by Coal-Mac Coal Company of Pikeville, Kentucky. Along with his obvious responsibility of purchasing coal for Coal-Mac, he also on occasion, acquires or arranges for leases of property Coal-Mac is interested in developing. On April 19, 1982, Allen and his wife leased 40 acres of their land near Goose Creek to Cornett and Mullins as a site for a coal tipple and loading facility. Adkins had earlier located the site and negotiated with the Allens concerning acquiring the property for Coal-Mac. Although the Allens were interested in leasing their property, Coal-Mac was not. The company did, however, give its approval for Adkins to approach the appellees with the same proposition. Cornett and Mullins, after viewing the property with Adkins, authorized him to continue negotiations for the lease. Over the course of the next several weeks, Adkins spent approximately 30 hours working on arranging the lease transaction. During this time, it was his understanding that if he were successful in negotiating the lease and in obtaining a railroad sidetrack to service the property, he would receive $.15 per ton for each and every ton of coal that was subsequently loaded at the tipple. A lease was subsequently executed between the Allens and the appellees, the terms of which provided that the Allens would receive a base royalty of $.50 per ton for the initial 25-year term of the lease, with a slight escalation following exercise of a 25-year renewal option. Following execution of the lease, Adkins approached the appellees requesting a writing to memorialize their understanding. He was informed that the $.15 royalty was dependent not only upon his efforts in securing the lease but also upon his future employment with Cornett and Mullins. As Cornett and Mullins recall their discussions with Adkins, they agreed to pay him a royalty of $.15 a ton if and when he terminated his employment with Coal-Mac and came to work for them, only then would their obligation arise. On December 3, 1982, Adkins initiated the present action requesting $500,000 in actual damages and $500,000 in punitive damages.

The first issue we resolve is whether the statute of frauds applies in the present circumstances to prevent specific enforcement of the alleged oral contract. Cornett and Mullins point to sections (6) and (8) of KRS 371.010 as preventing enforcement. Those sections provide that no action shall be brought to charge any person:

(6) Upon any contract for the sale of real estate, or any lease thereof for longer than one year;
(8) Upon any promise, agreement, or contract for any commission or compensation for the sale or lease of any real estate or for assisting another in the sale or lease of any real estate; unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. The consideration need not be expressed in the writing, but it may be proved when necessary or disproved by parol or other evidence.

Adkins denies that the above quoted language applies to the personal services he rendered in negotiating the lease. Pointing to Meredith v. Meredith, 204 Ky. 608, 264 S.W. 1109 (1924), and 20th Century Coal Co. v. Taylor, Ky., 275 S.W.2d 72 (1954), he characterizes the verbal agreement as being a contract for the division of personalty totally separate from the passage of any interest in realty via the lease. Based on this reasoning, he concludes that KRS 371.-010 is inapplicable. We disagree.

Meredith v. Meredith, supra, unlike the present appeal, does not involve a third-party intermediary requesting compensation for negotiating a lease. In Meredith, a dispute arose between a mother, as life tenant, and her two sons, as remaindermen, over the division of royalties they were to receive as owner/lessors of certain oil and gas properties. Thus, the Merediths stood not in the position of Adkins but of the Allens. Moreover, in Meredith, supra, a provision regarding payment of royalties was found in the lease involved, with the controversy centering upon a parol agreement that the mother and two sons would each divide ⅛ of the royalties. No parol agreement is involved in the present case and there was no provision in the Allens’ lease for Adkins to receive any royalty. Finally, while Meredith, supra, might be argued to have some relevance to KRS 371.010(6), the case sheds no light upon KRS 371.010(8), which was made effective some 26 years after entry of the decision in Meredith.

As for 20th Century Coal Co. v. Taylor, supra, the same defect applies. First, the decision fails to include any reference to KRS 371.010(8). Additionally, the services rendered by the plaintiff engineer in 20th Century in acquiring and developing drilling sites were markedly different from those of Adkins. Taylor, not only acquired leases, he supervised drilling, made maps of the sites, and kept logs and records. These activities, not being directly related to the passage of an interest in real property, obviously were not included under KRS 371.010. In short, none of the appellant’s authority has been able to harmonize the clear language of KRS 371.010(6) or (8) with his position. This is so specifically with respect to KRS 371.010(6) which, in a factually similar dispute in Barrett v. Hagans, Ky., 445 S.W.2d 839 (1969), was held to prevent enforcement of an oral contract to convey 10% interest in a gas well as compensation for arranging a lease. Therefore, we conclude that KRS 371.-010(6) and (8) bar specific enforcement of the oral contract.

This conclusion gives rise to our consideration of the next issue presented by Adkins; specifically, whether he may still recover the value of his services under a theory of quantum meruit or contract implied in law regardless of the applicability of the statute of frauds. We believe that he may, and for reasons set out below, reverse the summary judgment of the Floyd Circuit Court and remand it for further proceedings on the merits.

Where oral promises to perform have been found unenforceable under the statute of frauds, the courts of the Commonwealth have frequently resorted to such equitable doctrines as quantum meruit and contract implied in law to give relief to claimants who have rendered valued services under the unenforceable contract. See, e.g., Veluzat v. Janes, Ky., 462 S.W.2d 194 (1971); Cheshire v. Barbour, Ky., 455 S.W.2d 62 (1970); Vest v. Scearce’s Adm’r., 312 Ky. 181, 226 S.W.2d 942 (1950); Cheatham’s Ex’r. v. Parr, 308 Ky. 175, 214 S.W.2d 91 (1948); Head v. Schwartz’Ex’r., 304 Ky. 798, 202 S.W.2d 623 (1947). Cornett and Mullins would distinguish the above line of judicial authority by pointing out that Adkins’ efforts involved the transfer of a leasehold interest in realty by one not licensed as a real estate broker. By acting as an unlicensed broker, seeking compensation arising from an oral contract Adkins is supposedly denied the benefit of the above equitable doctrines by Nisbet v. Dozier, 204 Ky. 222, 263 S.W. 736 (1924), and Louisville Trust Co. v. Monsky, Ky., 444 S.W.2d 120 (1969), both of which involved real estate brokers denied commissions upon oral contracts. The short and simple response to this argument is that Adkins is not a real estate broker within the definition of KRS 324.010(l)(a) and thus not excluded from the protection of the above-mentioned equitable doctrines. The nature of the transaction between Adkins and the appellees was of an isolated and casual character specifically determined in Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983), not to fall within the definition of the statute. Adkins is, therefore, entitled to recover for the reasonable value of his services in securing the lease, the tipple, and the siding.

The judgment of the Floyd Circuit Court is reversed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Donnie D. WEAVER, Appellant.
    No. WD 35941.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1984.
    L.E. Atherton, Milan, for appellant.
    John Ashcroft, Atty. Gen., and Mark A. Richardson, Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Appeal from jury trial conviction of burglary in the second degree, Section 569.170, RSMo 1978, and sentence to a five-year term of imprisonment.

Affirmed. Rule 30.25(b).


author: PRITCHARD, Presiding Judge.

text:
    STATE of Missouri ex rel. Bertram G. COOPER, Relator, v. The Honorable John HUTCHERSON, Judge, Associate Circuit Court of Clay County, Missouri, Respondent.
    No. WD 35615.
    Missouri Court of Appeals, Western District.
    June 5, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied July 31, 1984.
    Application to Transfer Denied Aug. 20, 1984.
    James F. Speck, Kansas City, for relator; Speck & Handley, Kansas City, of counsel.
    James Chancellor, Pros. Atty., Liberty, for respondent.
    Before PRITCHARD, P.J., and SOMER-VILLE and MANFORD, JJ.
   ORIGINAL PROCEEDINGS IN PROHIBITION

PRITCHARD, Presiding Judge.

Relator sought by his petition herein to prohibit respondent from revoking his probation upon the ground that he had committed a rape upon one Donna Jones, a charge for which, after a second trial, resulted in a jury’s verdict of acquittal. Relator asserts that the jury’s verdict of acquittal of the rape, upon the issue of consent of the alleged victim, deprives respondent of jurisdiction to proceed with the revocation of probation upon the same ground because of the doctrine of collateral estoppel.

Relator cites and relies upon Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), but that case may be distinguished. There, defendant was charged with six separate robberies of six people in a poker game, and was tried and acquitted of a robbery of but one of them. The court applied collateral estoppel to set aside a conviction of a second criminal trial, which is the distinguishing feature in that the burden of proof upon the state was the same in both cases — that of showing guilt beyond a reasonable doubt. The Ashe case did not have in it any issue of the different standards of proof of a criminal case and that of revocation of probation, a civil matter. This issue was touched upon in State v. Brantley, 853 S.W.2d 793, 796[1-3] (Mo.1962), where it was said, “A violation of the conditions [of probation] is not a criminal offense, and a proceeding to revoke obviously is not a criminal prosecution within the constitutional provisions.” [Brackets added.] It was contended in the Brantley case that an acquittal of burglaries barred the probation revocation, but at page 797[5], it was said that the court was not bound by the verdicts in the burglary cases. Although relator seeks to distinguish the Brantley case upon the ground that the revocation was upon other violations of conditions than the facts of the burglaries, it is obvious that the facts therein bore upon the decision to revoke, in that defendant’s explanation overtaxed the credulity of the court, and they showed he failed to live a clean and honest life and to keep good hours, and “conduct ‘himself as a peaceable and law-abiding citizen.’ ”

It appears that the weight of authority in other jurisdictions support the proposition that a probation may be revoked as based upon the facts of a charged criminal offense even though there has been an acquittal of that offense, the rationale being based upon the different standards of proof — a failure of the state to prove guilt beyond a reasonable doubt as measured against the mere preponderance of evidence required in the civil matter of revocation of probation. See Anno. 76 A.L.R.3d 578 (1977); and these further cases: Standlee v. Rhay, 557 F.2d 1303 (9th Cir.1977); Johnson v. State, 240 Ga. 526, 242 S.E.2d 53 (1978); People ex rel. Singletary v. Dalsheim, 84 App.Div.2d 553, 443 N.Y.S.2d 172 (1981); and People ex rel. Froats v. Hammock, 83 App.Div.2d 745, 443 N.Y.S.2d 500 (1981). Compare also United States v. One Assortment of 89 Firearms, — U.S. -, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), holding that an acquittal of criminal charges involving firearms did not bar an in rem forfeiture proceedings against those firearms under the doctrines of collateral estoppel or double jeopardy, because of the difference in the relative burdens of proof in the criminal and civil actions.

Relator cites People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43 (1974), holding contrary to the above cited authorities. That case apparently stands alone, and this court declines to adopt its view. The sum total is that respondent had jurisdiction to consider the facts of the alleged rape offense in the proceedings to revoke relator’s probation, and the preliminary rule in prohibition was therefore improvidently granted.

The preliminary rule in prohibition is quashed.

All concur.


author: LOWENSTEIN, Judge.

text:
    Charles ANDERSON, Appellant, v. GRIFFIN, DYSART, TAYLOR, PENNER & LAY, P.C., Ivan Merrick, Jack G. Beamer, Lee E. Wells and Stanley D. Slagg, David Dysart, Respondents.
    No. WD 35251.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Richard H. Anton, Kansas City, for appellant.
    Paul H. Niewald, Niewald, Waldeck, Norris & Brown, Kansas City, for respondent Griffin, Dysart, Taylor, Penner & Lay, P.C.
    Kenneth O. Smith, Sharon K. Weedin, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondent Ivan Merrick, Jack G. Beamer, Lee E. Wells and Stanley D. Slagg.
    Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
   LOWENSTEIN, Judge.

Plaintiff-appellant, Anderson, appeals from a trial court order dismissing his petition on the ground that his action is barred by the statute of limitations. The scope of review on a motion to dismiss requires that the court examines the pleadings allowing them their broadest intendment, treating all facts alleged as true and construing the allegations favorably to the plaintiff. Best v. Schoemehl, 652 S.W.2d 740 (Mo.App.1983).

Anderson retained respondent Dysart in 1974 as his attorney to pursue a claim against Vincent Piseiotta for personal injuries resulting from a bar room battery. At this time Dysart was with the respondent firm of Griffin, Dysart, Taylor, Penner & Lay, P.C. The following is a chronological list of events that led up to this appeal.

January 17,1975 Pisciotta files his answer and counterclaim for alleged malicious prosecution.
January 21,1975 Dysart files reply to counterclaim.
February 14,1975 Dysart mails answers to first set of interrogatories.
March 4,1975 Pisciotta files second set of interrogatories.
Spring, 1975 Anderson requests Dysart to dismiss the petition.
May 1,1975 Pisciotta files motion to compel discovery (sent to Dysart).
July, 1975 Dysart moves to respondent law firm of Merrick, Beamer, Wells & Slagg.
July 2,1975 Court order compelling discovery within 15 days (sent to Dysart).
July 25,1975 Pisciotta files motion to strike Anderson’s pleadings for failure to make discovery (copy mailed to Dysart’s new address).
September 5,1975 Court order striking Anderson’s pleadings (sent to Dysart).
September 10,1975 First notice of default judgment hearing (sent to Dysart).
October 21,1975 Second notice of default judgment hearing (sent to Dysart).
October 30,1975 Default judgment for $4,075.00 entered on the counterclaim against Anderson (copy sent to Dysart).
October 1981 Anderson has wages garnished and first becomes aware of default judgment.
April 20,1983 Anderson files petition for legal malpractice and fraud against Dysart and the two respondent law firms.

The outcome of this appeal hinges on the application of § 516.100 RSMo 1978 which defines when the five year statute of limitations of § 516.120 begins to run. The pertinent language is as follows:

[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment ... (emphasis added).

The trial court determined that the statute began to run on October 30, 1975, the date the default judgment was entered. This placed Anderson’s present petition well beyond the five year statute of limitations. Anderson contends, and this court agrees, that the statute did not begin to run until October of 1981 when Anderson’s wages were garnished. Thus the 1983 petition was not barred by the statute of limitations and should not have been dismissed.

Missouri courts have often quoted the “capable of ascertainment” language of § 516.100 since its adoption in 1919. It purports to be a middle-of-the-road test in determining the commencement of a statute of limitations, but it has never been precisely defined by the courts. The most restrictive test is the “occurrence rule” or “wrongful act” test which says that the moment the defendant commits the malpractice the statute is triggered. Missouri has rejected this test by statute. The most broad test is the “discovery” rule which looks to the moment the plaintiff first becomes aware he has been aggrieved. This test was rejected by the Missouri Supreme Court in Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977). In Jepson, an attorney incorrectly advised his client that he had no defense to federal charges based on the client’s refusal to submit to induction into military service. The court said that the time the client was sentenced to prison was not the date on which the damages were capable of ascertainment but rather damages were ascertainable when he was placed on parole.

In Janssen v. Guaranty Land Title Co., 571 S.W.2d 702, 705 (Mo.App.1978), the court said the test is to “ascertain the time when plaintiff could have first maintained the action to a successful suit.” In Lato v. Concord Homes, Inc., 659 S.W.2d 593, 595 (Mo.App.1983), the court said the statute of limitations “begins to run when the plaintiffs right to sue arises.” Many states follow a “reasonable person” interpretation which makes whether something is ascertainable a question for the jury. In Missouri however, this is an objective test decided as a matter of law by the judge. In Chemical Workers Basic Union v. Arnold Savings Bank, 411 S.W.2d 159 (Mo. banc 1966), the Missouri Supreme Court said that “mere ignorance of the plaintiff of his cause of action will not prevent the running of the statute.” Id. at 165. This principle remains true except when that ignorance is totally caused by the actions or non-action of an attorney upon whom the client is relying. While it is true Anderson could have first maintained a suit on the date the default judgment was entered, that presupposes his ability to be omniscient.

Two cases on which the respondents rely and which must be distinguished are Fischer v. Browne, 586 S.W.2d 733 (Mo.App.1979), and Kueneke v. Jeggle, 658 S.W.2d 516 (Mo.App.1983). Both of these legal malpractice cases hold that the damages were capable of ascertainment at the time the original judgment was entered. In Fischer the malpractice concerned failure to pursue the plaintiffs administrative remedies before filing suit; in Kueneke it concerned the failure to notify the plaintiff of the need to raise and plead a compulsory counterclaim arising out of a car accident. In both of these cases the clients were actually involved in the original suit; in Fischer the plaintiff/client had been personally served with the motion for summary judgment. In the present case Anderson was totally unaware that the law suit was still in progress; he believed the case was dismissed and over with. More importantly the Fischer and Kueneke cases involved misfeasance; there the attorneys gave bad advice as to how to proceed with the case. The present case involves non-feasance. Attorney Dysart was told by his client to dismiss the case, yet he did not. Dysart was supposedly dismissed as Anderson’s attorney, yet he never formally withdrew from the case. As far as the court and the other party knew, Dysart was still the attorney for Anderson and so they sent him every notice, yet Dysart never passed these notices to Anderson, thereby concealing the fact that a live suit against him was still pending.

The respondents contend that because the default judgment was a matter of public record that damages were capable of ascertainment on October 30, 1975. While that is literally true, the facts in this case mitigate against strict adhearance to the “capable of ascertainment interpretations in Fischer, supra, and Kuenke, supra. As a layman, Anderson cannot be expected to double check every act (or failure to act) of his attorney. While it is clear that Anderson could not collaterally attack the default judgment, and is held to the constructive knowledge of anything his attorney knew, it does not follow that Anderson constructively knew, vis-a-vis the time to bring suit, those same facts with regards to a malpractice suit against the very attorney who concealed those facts from him. On seven occasions after Anderson’s directions to dismiss the case, Dysart received papers from either the court or the defendant Pis-ciotta. Even assuming Dysart believed Anderson had dismissed him as his attorney, Missouri Supreme Court Rule 4 DR 2-110 and EC 9-2 required action on Dysart’s part. DR 2-110(A)(2) says:

In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. (Emphasis added.)

EC 9-2 goes on to say in part:

In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters handled for the client. (Emphasis added.)

There is ease law in Missouri that supports a different interpretation of “capable of ascertainment” when there is a layman — expert relationship involved. As pointed out in Arst v. Max Barken, Inc., 655 S.W.2d 845 (Mo.App.1983), in most breach of contract or breach of duty cases, the plaintiff can himself ascertain his own injuries. In Arst the plaintiff was attempting to sue his contractor for cracks in the foundation of his home. Arst could see the cracks in 1969 but waited until 1979 to hire someone to figure out the exact cause of the cracks, and then tried to sue. The Arst court said the cases cited by the appellant (including Thome v. Johnson, infra) in support of a later date for accrual of the cause of action were inapplicable because they all involved plaintiffs who had employed experts, and the experts were capable of ascertaining plaintiffs’ injuries, but the plaintiffs were not capable of doing it themselves.

One such case is Krug v. Sterling Drug, Inc., 416 S.W.2d 143 (Mo.1967), which involved a plaintiff/consumer who used a drug manufactured by the defendant. The supreme court said:

The rationale of the cases involving delayed manifestation of injuries caused by wrongful conduct which was unknown to the plaintiff at the time of the invasion of his rights is ‘that a person must have some notice of his cause of action, an awareness that either he has suffered an injury or that another person has committed a legal wrong which ultimately may result in harm to him, before the statute can begin to run.’

As in Krug, there was delayed manifestation of injury to Anderson. He had no awareness that he had suffered an injury, i.e., a default judgment entered against him, until his wages were garnished. Another case which exemplifies this special layman/expert relationship is Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972). There an abstract company was hired in 1957, and its mistake in searching the record was not discovered by plaintiff until 1968. The court held it was not until 1968 that the statute began to run saying:

It is true that the whole world, including appellants, are bound to constructive knowledge of documents which have been duly recorded. That of course is the very reason why abstract companies are in business ... It would be absurd to lay down as a legal requirement that these parties, in addition to hiring a professional abstractor, should also have to make their own independant laymen’s investigation to ascertain whether their professional agent had done its job properly. Id. at 663.

Respondents argue that Thome’s logic should only apply to abstractors and not to attorneys. Actually the Thorne rationale is even more compelling in an attorney/client relationship where more important matters than the chain of title to property can be entrusted to the expert. Likewise here it would be absurd to require a client, in addition to hiring an attorney, to make a layman’s investigation to determine whether the attorney had done his job properly or was forwarding important papers and orders to him.

The respondents argue that statutes of limitations are to be strictly construed so as to avoid stale claims. They pose the problem of the default judgment having .not been executed through garnishment until the tenth year, or worse yet the judgment having been revived to run for a total of twenty years after the original order. The Thome court had no difficulty with an eleven year delay and there the abstractor had no way of rectifying the situation any earlier than the client’s discovery. In the present case the attorney Dysart in a sense had the keys to the courthouse door. He knew of the potential of and actual happening of default judgment all along and at any point during those six years could have informed his client. Clearly the client Anderson was shocked when he had his wages garnished six years after he thought the case had been dismissed. Anderson would have been even more shocked had the garnishment been postponed ten or twenty years. As to the judgment creditor he would have had no alternative but to pay. To then let his attorney hide behind a strict interpretation of the statute of limitations would not promote justice and would leave the client with no relief.

An example of how this delay in the running of the statute can be avoided is seen in Dixon v. Shafton, 649 S.W.2d 435 (Mo. banc 1983). There an attorney failed to read a final version of a contract before recommending it to his clients. A year and a half later when the attorney made the discovery, he immediately disclosed this information to his clients and upon his advise they retained independent counsel. Two years later the clients were sued, and three years after that the clients sued the original attorney for malpractice. Our supreme court held the clients were barred by the statute of limitations because it had begun to run no later than the date they were told of the mistake and knew a substantial claim against them existed and were told to hire another attorney. Id. at 438. In the present case had Dysart informed Anderson of the pending counterclaim then the statute would have begun to run as it did in Dixon. The problem of a stale claim was the respondents’ own fault and they cannot now be heard to complain. The passage of time here worked more to reinforce the client’s pleaded belief the case was done with, that he had no need for an attorney nor a necessity to check court files.

Having reached the decision that the statute of limitations did not bar Anderson’s cause of action, this court need not decide whether Anderson has successfully pleaded a count in fraud because the trial court did not base the dismissal on that point. There appears to be some confusion in this case as between fraud as a legal cause of action as proposed in Count II, and the fraud under § 516.280 which tolls the running of the statute of limitations in any type of suit. This distinction is superfluous in light of the trial court’s conclusion that even if a claim in “fraud” were stated, the statute of limitations would have run. The trial court judgment favorable to the respondents was on the underlying theory the statute of limitations had run as to fraud or negligence. This dispenses with the need here to decide whether Anderson’s first amended petition as compared to his original petition states a separate cause of action for fraud. This opinion in no way reaches the merits of whether any of the respondents are guilty of malpractice or fraud. This decision is based only on the limitations issue which supported the motion to dismiss.

The judgment of the trial court as to the statute of limitations question is reversed and the cause remanded with directions to allow Anderson to file an amended petition.

All concur.


author: MANFORD, Judge. KENNEDY, Judge,

text:
    MARKS AND MASTERS CONSTRUCTION, INC., Appellant, v. WESTERN CASUALTY & SURETY CO., Respondent.
    No. WD 35184.
    Missouri Court of Appeals, Western District.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Dennis E. Dibler, Kansas City, for appellant.
    Robert A. Babcock and David'A. Vorbeck of Margolin & Kirwan, Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   MANFORD, Judge.

This action, at its origin, sought damages for breach of contract and for breach of a surety bond. The trial court entered summary judgment on the bond claim. This appeal involves the summary judgment. The appeal is dismissed.

Three points are presented, which in summary charge (1) that the appeal from the trial court’s ruling on summary judgment was timely, (2) that the trial court erred in entering summary judgment because there existed a genuine material fact issue, and (3) that the trial court erred in entering summary judgment because appellant was within the class of intended beneficiaries under the surety bond.

The record discloses the following pertinent facts. Appellant, Marks and Masters Construction, Inc. (hereinafter Marks) was in the land development business and relative to that business, purchased a tract of land in Kansas City, Missouri. The purpose of the purchase was to develop a subdivision of residential properties. On June 29,1977, J.M. Morris Construction Co. (hereinafter Morris) submitted a proposal to' Marks to provide asphalt paving and concrete curbing within the subdivision. On July 6,1977, Marks accepted the Morris proposal and a contract was entered. Subsequently, respondent Western Casualty and Surety Company (hereinafter Western), along with Morris, executed a bond to the favor of the city of Kansas City, Missouri. The bond, in its entirety, is set forth below:

PERFORMANCE AND MAINTENANCE BOND
KNOW ALL MEN BY THESE PRESENTS, That we, J.M. Morris Construction Co., 13716 Oak, K.C., Mo. 64114 as principal and The Western Casualty and Surety Company, as sureties, are held and firmly bound unto Kansas City, a municipal corporation of the State of Missouri, in the sum of Forty Thousand Three Hundred Forty Five Dollars and no/100 ($40,345.00) Dollars, for the payment of which sum, well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors and assigns, firmly by these presents.
The conditions of this bond are such that (none listed).
WHEREAS, the said J.M. Morris Construction Co. has been given permission by Permit No. ST 4779, to construct Curbs & Paving in Longview Manor — 118th St. Terrace from Winchester Avenue easterly 303 feet — Britol Avenue from 117th Street to Cul-de-Sac.
NOW THEREFORE, if the said J.M. Morris Construction Co. shall construct or cause to be constructed and completed the entire improvement provided for in said Permit, and shall construct same in accordance with specifications used by the City for like improvements, and to the lines and grades given by the City Engineer, all to be done subject to the approval and acceptance of the Director of Public Works of said Kansas City; and shall construct said improvement with such materials and in such manner that the same shall endure without need of any repairs for a period of 3 years from and after the completion of said improvement and acceptance thereof; and if said improvement shall endure without the need of repairs for the period of 3 years from and after the completion and acceptance thereof as aforesaid, then this obligation shall be void; otherwise to be in full force and effect.

The above bond was accepted by the city on October 24, 1977. Various preparatory stages of the paving and curbing work were completed, but Morris ultimately did not perform under the contract. Morris went out of business. Marks hired others to complete the paving and curbwork.

Marks instituted these proceedings against Morris, seeking damages for breach of contract and against Western on the surety bond. Western filed a motion for summary judgment, asserting, as a matter of law, that it was entitled to such judgment because Marks was not a named beneficiary under the bond. Marks did not respond to Western’s motion, and the trial court entered summary judgment for Western on January 23, 1980. The summary judgment was not designated as final for appeal. Marks did nothing more until April 30, 1982 when a motion to set aside the summary judgment was filed. Marks’ motion to set aside the summary judgment was overruled on July 30, 1982. A jury trial upon Marks’ claim against Morris followed, and the jury returned its verdict in Marks’ favor and against Morris on July 13, 1983. On July 26, 1983, Marks filed another motion to set aside the summary judgment previously granted Western. An alternative motion for new trial was also filed. These motions were overruled on August 16, 1983. Marks filed this appeal. On September 30, 1983, Western filed a motion to dismiss the appeal. That motion was, by this court, ordered taken with the case. On April 12, 1984, Marks dismissed its appeal as to Morris. Briefs and argument before this court proceeded between Marks and Surety upon the summary judgment.

While Marks formally presents three points, said points are nothing more than variations upon a common theme. These points are taken up and disposed of con-junctively, and for the purposes of this appeal, the three points are restated as follows.

Marks asserts that the trial court erred in entering summary judgment for Western because there existed genuine issues of fact, to wit, that Marks is an unnamed beneficiary within the bond and that Marks’ claim against Morris first had to be litigated because of the interdependence between Marks, Morris, and Western, and therefore the Marks appeal regarding the summary judgment was timely.

The main issue involved on this appeal is whether the Marks appeal from the summary judgment was timely. To resolve this issue, it must be determined if Marks is an unnamed beneficiary within the above bond. If Marks were found to be such unnamed beneficiary, then the Marks appeal would be timely because Marks, in order to hold Western liable, would have to establish the liability of Morris who was the declared principal on the bond. Thus, at the time the summary judgment was entered, there would have existed genuine material fact issues. On the other hand, if Marks is found not to be an unnamed beneficiary under the bond, then the Marks claim against Morris does not bear upon the issue, there existed no genuine material fact issues between Marks and Western, and the appeal from the summary judgment was untimely.

The above bond is required under Section 31.12(E)(2), Code of General Ordinances, Kansas City, Missouri and § 89.410, RSMo 1978. The general rule relative to such bonds naming a city or county may be enforced only by the legislative body of the governmental unit. Marks asserts the general rule also provides that if such a bond is a “statutory bond” it will indemnify the municipality and third parties not actually named in the bond. Appellant cites Weinhaus v. Massachusetts Bonding & Ins. Co., 210 S.W.2d 710 (Mo.App.1948) and LaCrosse Lumber Co. v. Schwartz, 163 Mo.App. 659, 147 S.W. 501 (1912). Neither of these authorities finds application to the instant case. Weinhaus, while involving a statutory bond, nonetheless points out that within the wording of the bond third persons were specifically covered. This is not the case with the bond in the instant case. In LaCrosse, the court did not have for consideration a “statutory bond”. Thus, neither case applies and neither is persuasive or controlling herein.

While there is limited authority in our state on this issue, it appears that the leading case is City of University City v. Frank Miceli & Sons R. & B. Co., 347 S.W.2d 131, 134 (Mo.1961). The court in Miceli declared:

“[I]n a proper case, third persons, for whose benefit or protection a contract has been made by a municipal corporation with a private contractor, may maintain an action on the contract (citations omitted) and this includes, of course, a bond ‘to secure the performance of a municipal improvement contract’ ” Miceli at 134.
“It is not necessary that the property owners be named as obligees, the problem is whether the contract and bond were for their benefit and protection.” Id.

Miceli involved a claim which was denied, by adjacent landowners, and in denying their claim, the court held that the bond was for the property owners within the subdivision only. In the instant case, Marks asserts it is the owner of the tract and hence a landowner within the rule of Miceli. The status of Marks as a landowner need not be determined herein for assuming Marks was the landowner Marks still cannot avail itself of the rule in Miceli. The distinguishing feature between Miceli and the instant case is the wording within the two bonds. The bond in Miceli was in fact a performance bond. That bond, to the favor of University City, included the following language:

“shall indemnify said City and secure to said City the actual construction of such improvements and utilities in a manner satisfactory to said City, in the event said Principal shall fail to install said improvements and utilities within two (2) years.” Miceli at 134.

The court in Miceli reasoned that it was obvious from the plain language of the bond that the purpose of the bond was to insure the actual construction of the proposed improvements within a specified period of two years. That same bond authorized the City to resort to the bond upon failure of performance. Thus, it can be concluded that Miceli declares that the liability of a surety to a third person must be measured by a reasonable interpretation of this obligation as expressed by and within the terms of the bond. See also Tri-State Insurance Co. v. United States, 340 F.2d 542, 545 (8th Cir.1965) and St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260, 273 (Mo.1979).

The wording from the bond in Mice-li should be contrasted with the wording within the bond in the instant case. Without restating the wording of the bond herein, but upon the wording of same, it is obvious that the bond herein does not guarantee payment for the completion of the paving and curbing work to be performed by Morris, but in fact the bond herein becomes effective only and upon the satisfaction of certain contingencies, to wit: (1) that Morris construct and complete the entire improvements (paving and curbing), (2) the improvements be in accordance with specifications prescribed by the City, and that the improvement be accepted by the City, and (3) that said improvements endure without need of repair for three years after completion and acceptance. It is evident that the bond herein is not the same type bond as considered in Miceli, which guaranteed performance, but rather, the bond herein designates protection for the City of Kansas City, Missouri only after completion of the improvements and acceptance thereof by the City.

The following conclusion must be and are hereby reached herein. The bond herein did not guarantee performance by Morris. The party designated as beneficiary under the bond was the City of Kansas City, Missouri, and the City was the exclusive beneficiary. The wording and thus the purpose of the bond was to protect the City against cost of repairs after a three-year period following completion and acceptance of the streets. As a result of the wording and thus the purpose of the bond, Marks could not be an unnamed beneficiary within the bond. This was the sole issue between Marks and Western and the resolve of that issue was not interdependent upon the claim of Marks against Morris. At the time the trial court entered summary judgment for Surety, all issues between Marks and Western had been ruled. The appeal by Marks from that summary judgment, having been filed more than two years after the entry of that judgment, was untimely.

Appeal dismissed.

TURNAGE, C.J., concurs.

KENNEDY, J., dissents in separate dis-' senting opinion.

KENNEDY, Judge,

dissenting.

I respectfully dissent.

I believe that City of University City v. Frank Miceli & Sons R. & B. Co., 347 S.W.2d 131, 134 (Mo.1961) indicates a different result. Plaintiff was, in my opinion, a beneficiary of the bond.

I would reverse and remand for trial.

      . See Frelich, Regulations for Control of Land Subdivision, 36 Mo.L.Rev. 1, 17 (1971).


author: CLEMENS, Senior Judge.

text:
    Sohair WAHBA, Respondent, v. Ibrahim Ahmed ABDEL-KERIM, Appellant.
    No. 48517.
    Missouri Court of Appeals, Eastern District, Division Six.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Leonard W. Buckley, Jr., St. Louis, for appellant.
    Larry W. Glenn, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Father appeals the trial court’s order modifying child custody and support in favor of mother.

By the underlying 1978 decree the court gave the mother primary custody of the parties’ two-year-old son and $275 monthly for his support; custody was subject to the father’s weekly visitation and temporary custody during summers.

Then followed the parties’ present modification motions. The father was to be employed in Saudi Arabia and sought the son’s custody while there; the mother sought to keep the son in the United States and to increase the support judgment.

The pertinent modification decree findings and provisions: The father is to be employed in Saudi Arabia, with a one-month vacation; he is á dual citizen of Egypt and the United States. Under Egyptian law the son’s custody would be solely in the father. The father is to have visitation and temporary custody only while in this country. The father earns $60,000 a year, tax free. The mother is gainfully employed as an engineer. She owns a condominium where she lives with her son who attends a private school. Cost of the son’s maintenance has increased and the father’s monthly support is raised from $275 to $450.

The evidence showed both parents are devoted to their son and physically and emotionally desire to share his welfare.

The parties agree this case is unique under Missouri custody law. We have considered the Missouri and out-of-state custody cases cited by husband. The facts there are so different that the cases are hardly controlling.

Here the evidence conflicts as to whether the father intended to seek Egyptian citizenship for the son. If he did, that would stifle the mother’s custody rights.

The conflicts in evidence were for the trial court to resolve and we must take the rulings in light of the results reached. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481[1—4] (Mo. banc 1980). As ruled in K-R-(S-)D v. C-D-S, 646 S.W.2d 428[6] (Mo.App.1983):

“... we must bear in mind that the trial court was in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed in the record.”

We deny father’s objection to the mother’s custody and consider his challenge to increasing the monthly child support from $275 to $450.

The trial court heard each party’s testimony of income and expenses and also their filed financial statements.

The father had a gross income of $5,000 a month, tax free. He broadly claims $1,800 a month for his living and recreational expenses, thus leaving $3,200 a month surplus. In contrast the wife listed the son’s monthly expenses at $593, thus leaving $143 a month for her to pay from her own earnings of $1,782 per month.

In the parties’ cited case of McNulty v. Heitman, 600 S.W.2d 168[15] (Mo.App.1980) we ruled:

“... a party’s testimony as to expenses is sufficient evidence on which to base an allowance of child support and need not be proved with absolute particularity. The trial court may, at its option, accept or reject such evidence.”

We hold the trial court did not err either as to custody or child support.

REINHARD, C.J., and CRIST, J., concur.


text:
    Vivian Jo Ann BARAC, Respondent, v. Gregory F. BARAC, Appellant.
    No. 48244.
    Missouri Court of Appeals, Eastern District, Division Six.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.

      John C. Maxwell, St. Charles, for appellant.
    Richard D. Sabbert, St. Charles, for respondent.
   CLEMENS, Senior Judge.

The 21-year marriage of Vivian and Gregory Barac was dissolved in 1981, granting her support and the two children’s custody and maintenance. Then in 1983 the husband moved to modify the decree’s monetary provisions contending her wages had gone up and his down. The trial court partially sustained the motion; it deleted the wife’s $100 weekly support and reduced the $300 weekly child support to $200 ($868 monthly).

On appeal husband contends the evidence showed the children’s monthly expenses were only $470 as against the $868 child support awarded. His calculation overlooks the wife’s $1,228 other monthly expenses for the family’s housing, utilities and automobile. Thus by the $868 overall monthly child support allowance the trial court considered both their itemized $470 expenses and also $398 monthly as the children’s share of the overall $1,228 family housing expense.

So, we deny husband’s basic contention that the $868 monthly child support allowance was not supported by the evidence. We move to his underlying contention the allowance was excessive in view of his reduced monthly income.

Before the present motion husband had earned $32,248 annually. When garnished for child support he quit and took a job paying $21,600 annually. The trial court was not bound by the lower salary in measuring husband’s ability to pay.

Marital allowances rest in the trial court’s discretion and will be disturbed only when clearly against the evidence. Murray v. Murray, 538 S.W.2d 587 [6] (Mo.App.1976). Pertinent here is Jackson v. Jackson, 655 S.W.2d 787 [2] (Mo.App.1983) where as here a husband voluntarily took a lower paying job. We held:

The proper yardstick to measure the adequacy of marital allowances is the husband’s capacity to pay. Both his present and past earnings are evidence of that capacity.”

Husband further contends the trial court erred in sustaining an objection during cross examination of the wife:

“Q. Do you anticipate any raises in the future?”
“A. Possibly next August.”

The answer was speculative and as held in In re Marriage of Vanet, 544 S.W.2d 236 [3] (Mo.App.1976) the wife’s alleged earning capacity was at best an illusory financial resource entitled to little if any weight.

Affirmed.

REINHARD, C.J., and CRIST, J., concur.


text:
    STATE of Missouri, Respondent, v. William BURKE, Appellant.
    No. 46890.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Daniel P. Reardon, Jr., St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant William Burke guilty of the capital murder of his wife. He moves here to remand the case for retrial. This on the ground that because of her mental illness the original reporter cannot furnish a transcript. Further, that a partial transcript made by a substitute reporter from the other’s original notes admittedly omits defendant’s cross-examination of one essential state witness, and as to another the notes are “in bits and pieces” that fail to distinguish between direct and cross-examination. The substituted transcript omits the testimony of two investigating police officers, and also of extended pre-trial conferences.

In his new trial motion defendant on hearsay grounds challenged admission of testimony by state’s witness McCoy concerning her conversations with the defendant two and three days before the victim’s death. He there also claimed error in the trial court permitting witness Giamo to testify to statements made by defendant two days before his wife’s death.

From the truncated record we cannot determine what each challenged statement was, nor what were defendant’s trial objections thereto. Counsel have tried but cannot agree on the content of the missing transcript portions.

We note that the proffered transcript on appeal before us was approved by neither counsel, nor by the trial court as provided by rule 30.04(g).

Here the state relies on State v. Borden, 605 S.W.2d 88[3, 4] (Mo. banc 1980). There defendant contended “a small portion” of the transcript was missing, but unlike our case, there was no attempt by that appellant counsel to supply the omission. Here, in view of the massive transcript omissions neither the cited rule nor BORDEN warrants us to conclude the proffered transcript is adequate. From it we cannot decide the defendant’s challenges to his conviction.

We reverse the conviction and remand the case for retrial.

DOWD, P.J., and CRIST and CRAN-DALL, JJ., concur.


author: MANFORD, Judge.

text:
    Pamela Sue SCOTT, Respondent, v. Steven Edward DAVIS, Appellant.
    No. WD 35853.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Richard Modin, Kansas City, for appellant.
    Paul 0. Liebengood, Blue Springs, for respondent.
    Before TURNAGE, C.J., and MANFORD, J., and MESSINA, Special Judge.
   MANFORD, Judge.

This appeal arises from the granting of a new trial. The judgment is affirmed.

Two points are presented, which allege that the trial court erred in granting respondent a new trial, because (1) appellant’s motion for directed verdict should have been granted, and (2) there is an inconsistency of the verdicts which would support the grant of a new trial.

In summary, the facts are as follows.

On December 14, 1979, respondent was operating a 1972 Ford. Appellant was operating a 1973 Pontiac. Respondent pulled her Ford partially onto the street, totally blocking the southbound traffic lane. While attempting to avoid respondent’s vehicle, appellant collided with respondent’s vehicle. Respondent and a passenger in respondent’s vehicle testified that appellant’s vehicle was traveling approximately 70 m.p.h. An investigating officer testified that the minimum speed at impact was 41.59 m.p.h.

At the close of respondent’s case, appellant moved for a directed verdict, and the same motion was made at the close of the evidence. Both motions were denied. Respondent’s claim was submitted to the jury on appellant’s excessive speed. Appellant’s counterclaim was submitted to the jury on respondent’s failure to maintain a proper lookout and the failure to yield the right-of-way.

The jury returned the following verdicts:

VERDICT A
On the claim of Plaintiff, Pamela Sue Scott, against Defendant, Steven Edward Davis, we, the undersigned jurors, find in favor of Steven Edward Davis, (list of jurors names)
VERDICT B
On the claim of defendant, Steven Davis, for property damage against plaintiff Pamela Sue Scott, we, the undersigned jurors, find in favor of Steven Davis.
We, the undersigned jurors, find the total property damages of defendant Steven Davis to be $1,050.00.
We, the undersigned jurors, assess the percentages of fault as follows:
Pamela Sue Scott 70%'
Steven Davis 30%
Total 100%
(list of jurors names)

Appellant’s point (1) can be summarily disposed of by stating that a review of the evidence reveals that respondent, upon her initial claim, made a submissible case as to withstand appellant’s motions and the trial court did not err in denying appellant’s motions for directed verdict.

Appellant’s point (2) presents a unique case in Missouri law, the facts being that appellant, by a jury, was found to be completely free from fault as regards respondent’s original claim, and yet the jury assessment of 30% fault against appellant on his counterclaim is a first in our state.

Ordinarily, a verdict may be and usually is set aside and a new trial granted where the verdict is self-contradictory, inconsistent, or incongruous, and the relief by way of a new trial should be granted where more than one verdict is returned in the same litigation and those verdicts are inconsistent or irreconcilable. 66 C.J.S. New Trial § 66 (1950). A new trial is warranted where the verdict is inconsistent. Burton Duenke Building Co. v. Whitney, 384 S.W.2d 273, 274 (Mo.App.1964). For a case of inconsistent verdicts in a personal injury case involving respon-deat superior where the servant is exonerated, but the master is held liable, see Rinker v. Ford Motor Co., 567 S.W.2d 655, 659 (Mo.App.1978).

The verdicts entered herein are to say the least illogical. The result was that appellant, as original defendant, was found to be free of fault in defense of respondent’s original claim, and yet, 30% at fault upon his own counterclaim, while both claims arose from the same incident.

Missouri has adopted the comparative fault doctrine by judicial decision and by that decision, adopted what is commonly referred to as the pure system of comparative fault. Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983). Under the pure system, damages are apportioned according to the proportionate fault of the parties. What yet remains for decision in Missouri is whether both fault and causal contribution should be compared when making that apportionment. Gustafson does not provide for any guideline upon that question. Because of the posture of this case, the answer to that question must remain to another day. It does, however, seem quite illogical that, as regards a single incident, a defendant could be held free of fault as to the plaintiffs original claim and yet be at fault to some percent as regards his own claim for damages presented by way of his counterclaim.

The verdicts herein are inconsistent. The trial court granted a new trial upon that basis. This court must affirm such new trial order if the granting of the motion is sustainable upon any basis. Claspill v. Craig, 586 S.W.2d 458, 461 (Mo.App.1979).

Judgment affirmed.

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth TERRY, Appellant.
    No. 47196.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.

      Robert M. Paskal, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Gary L. Gardner, Kansas City, for respondent.
   CRIST, Judge.

Defendant was convicted by a jury of second degree murder and sentenced to 25 years imprisonment. We affirm.

On the afternoon of September 30, 1982, defendant had a physical fight on a porch with Michelle Love, a former girlfriend. During this fight, decedent approached the pair, exchanged a few words with defendant, and then walked away. The fight then broke up, with defendant and Love leaving the area.

About five minutes later, defendant returned carrying a gun. Defendant went up to decedent, grabbed him by his shirt, and asked if he lived there. Decedent, with his hands in the air, said “What’s this?” The pair turned in a circle, and then defendant shot decedent twice in the chest. Defendant then ran. Decedent died a short while later.

The testimony of defendant at trial was largely the same as that of the other witnesses. Defendant claimed decedent left the scene of the fight, then returned, with a bulge under his shirt with a flash of silver. Fearing decedent was armed, defendant left, procured his gun, and returned to the scene to continue his argument with Michelle. She had left the scene, so defendant confronted decedent. Defendant lifted decedent’s shirt to check if he was armed. When decedent went for his gun, defendant shot him twice, then ran. Decedent shot at defendant three times as he ran. Defendant’s gun misfired as he tried to return the fire. Once defendant was out of range, he discarded his gun. Neither defendant’s nor decedent’s guns were found. No tests were conducted to determine if decedent had recently fired a gun.

Defendant claims error in the admission of three autopsy photographs of decedent showing entrance and exit bullet wounds to his chest. Of the three exhibits, only one was passed to the jury. Admissibility of evidence as a matter largely consigned to the trial court’s discretion, who is in a better position to weigh evidentiary value against prejudice. State v. Jackson, 663 S.W.2d 312, 316 (Mo.App.1983). The pathologist’s testimony describing the wounds did not render photographs showing those wounds irrelevant. State v. Mitchell, 659 S.W.2d 4, 5 (Mo.App.1983). We find no abuse of discretion.

Defendant next alleges the trial court failed to sua sponte instruct the jury on the appearance doctrine, using paragraph 5 of MAI-CR2d 2.41.1. Review is requested for plain error. Rule 30.20. An instruction on false appearances is to be given only if the evidence supports it. MAI-CR2d 2.41.1 Notes on Use 6. No evidence supports a claim that decedent’s acts, as related by defendant, were actually other than what they seemed to be. Accordingly, it was not error, plain or otherwise, to fail to give the instruction. State v. Butler, 676 S.W.2d 809, 816-17 (Mo. banc 1984).

Points Relied On III, IV, and V allege plain error in the trial court’s failure to sua sponte declare three state’s witnesses incompetent to testify. Rule 30.20. All three witnesses were over ten years old, and presumed competent to testify. State v. Locke, 625 S.W.2d 631, 632 (Mo.App.1981). This presumption may be rebutted by the party who challenges competency. The determination of competency will be set aside only on clear abuse of discretion. Our examination of the testimony of these three witnesses convinces us there was no abuse of trial court discretion. We decline to review for plain error. Rule 30.20.

Finally, defendant attacks the conviction as not supported by sufficient evidence and was against the weight of the evidence. The weight of the evidence is not reviewable. State v. King, 662 S.W.2d 304, 309 [16] (Mo.App.1983). Upon reviewing the evidence and inferences in the light most favorable to the state, including defendant’s admission he shot decedent, it is sufficient to support the verdict. See State v. Gordon, 649 S.W.2d 903, 905-06 (Mo.App.1983). Self-defense was not established as a matter of law. State v. Kern, 654 S.W.2d 147, 148-49 (Mo.App.1983), and was rejected by the jury.

Judgment affirmed.

DOWD, P.J., and CRANDALL, J., concur.


author: DOWD, Presiding Judge.

text:
    In the Matter of Patrick L. MORRISSEY, Deceased. Clifford BUCHER, David Brendel, and Linda Simpson, Plaintiffs-Appellants, v. ST. LOUIS UNION TRUST COMPANY (Now Centerre Trust Co.) and Mother of Good Counsel Home, et al., Defendants-Respondents.
    No. 48292.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.

      Charles J. McMullin, St. Louis, for plaintiffs-appellants.
    Charles J. Malloy, St. Louis, for St. Louis Union Trust Co.
    Ann Buckley, St. Louis, for Mother of Good Counsel Home.
    Edward K. Fehlig, Clayton, for St. Vincent’s Orphan Home.
    Bernard Huger, St. Louis, for all other defendants-respondents.
   DOWD, Presiding Judge.

A will construction case. Appellants petitioned the trial court to construe a will and to define their interest in the estate of Patrick L. Morrissey (hereinafter referred to as decedent or testator). The controversy focuses on the interpretation of one provision of the decedent’s will. The trial court’s interpretation effectively worked as an ademption of the decedent’s testamentary gift to the appellants under that provision. This appeal follows. We affirm.

The provision of the decedent’s will under which the appellants claim an interest in his estate reads as follows:

FIFTEENTH: It is my wish and desire that if I should die possessed of any interest whatsoever in a business known as ACE CRAFT & HOBBY DISTRIBUTORS, that the assets of said business including name, fixtures, stock, goodwill, and any real property in which said business is being conducted at the time of my death, and to which I have title or an interest in, shall be given devised and bequeathed to my following three (3) employees, in appreciation for their long and faithful sevice, namely: CLIFFORD F. BUCHER, who shall receive a fifty percent (50%) interest in all such assets; DAVID P. BRENDELL, who shall receive a thirty-five percent (35%) interest in all such assets, and LINDA SIMPSON, who shall receive a fifteen percent (15%) interest in all such assets. It is my express hope that they shall be able to carry on the business known as ACE CRAFT & HOBBY DISTRIBUTORS, but I leave it to their judgment to determine whether they wish to carry on said business or to liquidate the same in accordance with their respective percentages interests as hereinbefore set forth.

The testator executed his will on July 10, 1980, and died on May 6, 1981. However, during the interim, he sold his interest as sole proprietor of ACE CRAFT & HOBBY DISTRIBUTORS on February 20, 1981 to a corporation.

The testator retained two separate and distinct interests in his former business. First, he retained control of his accounts receivable, which were not sold as part of the business. Second, he retained an interest as a lienholder under a deed of trust. Under the terms of the sale, Morrissey received $50,000.00 in cash at closing and two promissory notes secured by a deed of trust for the balance of $50,000.00. At his death, both notes remained unsatisfied.

Appellants offer six points of contention which may be consolidated into three issues on appeal. Initially, we review their allegations of error under the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Hence, the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declared or applied the law. Id. at 32.

The first issue to which we must attend is whether the trial court erred in ruling that Article Fifteen of the decedent’s will contained no latent ambiguity pertaining to the language “any interest whatsoever in a business known as ACE CRAFT & HOBBY DISTRIBUTORS.” The trial court interpreted the provision as a testamentary gift of a “going business.” Since the testator sold his business after the creation of his will, the gift was adeemed. As a result, the amount collectible on the notes passed under the residuary clause of the will. Appellants contend that the evidence adduced at trial revealed the decedent’s true intent and purpose, and that the decedent died possessed of a substantial interest in his business after its sale.

The controlling rule in construing wills, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator from the entire instrument and not from an isolated segment thereof. Estate of Pettit v. Levine, 657 S.W.2d 636, 643 (Mo.App.1983). The court first looks to the language contained in the will, construes it from the four corners of the will, and gives effect to all provisions, if possible. Scullin v. Mercantile-Commerce Bank and Trust Co., 361 Mo. 337, 234 S.W.2d 597, 601 (1950). Therefore only when the language of the will is ambiguous or wanting in clarity is the court authorized to consider extrinsic evidence to ascertain the testa tor’s intent. In re Estate of Welter, 598 S.W.2d 618, 619 (Mo.App.1980). A latent ambiguity in a will occurs when the instrument itself is unambiguous on its face but becomes open to more than one interpretation when applied to the factual situation in issue. Boatmen’s Union National Bank v. Welton, 640 S.W.2d 497, 502 (Mo.App.1982). Two types of wills which present latent ambiguities are those (1) which explicitly describe a person or thing when two or more persons or things fit exactly the description or condition in the will, and (2) those which describe a condition or thing which no person or thing fits but two or more persons or things fit in part and imperfectly. Breckner v. Prestwood, 600 S.W.2d 52, 55 (Mo.App.1980). The appellants contend that the former type of latent ambiguity exists under the facts of this case.

Appellants argue that the language in the first sentence of Article Fifteen, “any interest whatsoever” creates the latent ambiguity in that the deed of trust gave the decedent a descendible interest in ACE CRAFT & HOBBY DISTRIBUTORS. Moreover, the appellants minimize the importance of the last sentence which expresses a hope that appellants carry on the business after testator’s death. However, we take an opposite view because the last sentence is precatory in nature. Thus, we agree with the trial court that Article Fifteen, read as a whole, clearly indicates that the intention of the testator is to make a testamentary gift of his “going business” which the appellants could continue or liquidate after they received the business under the will. The business interest devised is referred to as a business “being conducted at the time of my death.” It is clear that the testator did not intend to liquidate it for them, simply because the decedent sold his “going business” after the execution of the will. Therefore, we believe no ambiguity exists. Since the “going business” was sold prior to the decedent’s death and hence not found among the assets of the estate, the testamentary gift was adeemed. See In re Howe’s Estate, 379 S.W.2d 154 (Mo.App.1964).

A second, but closely related, issue is whether appellant Simpson was competent to testify for any or all the appellants regarding the decedent’s retention of the accounts receivable and deed of trust. After an offer of proof, the trial court barred her testimony pursuant to the mandates of the Dead Man’s Statute, § 491.010 RSMo 1978. The appellants contend that her testimony included no “transactions” between the decedent and her, and thus the statute did not apply. For a different reason, we agree with the trial court.

Notwithstanding the Dead Man’s Statute, appellant Simpson’s testimony is extrinsic evidence. With her testimony, appellants hope to prove either the existence of a latent ambiguity or the testator’s intent. However, extrinsic evidence may only be admitted after a latent ambiguity is found to exist. Furthermore, such evidence may only serve to reveal the testator’s intent. In re Estate of Welter, 598 S.W.2d at 619. Moreover, concerning a specific testamentary gift, such evidence of intent may only pertain to acts and conduct of the testator prior to or contemperaneous with the execution of the will. See Shriners Hospitals for Crippled Children v. Emrie, 347 S.W.2d 198[7,8] (Mo.1961). Clearly, the nature of appellant Simpson’s testimony chronologically followed the sale of the business and thus also followed the execution of the will. Therefore, her testimony was properly excluded regardless as to latent ambiguity or testator’s intent.

Lastly, we confront the third issue of whether the trial court erred in granting respondents’ motion to dismiss appellants’ amended petition concerning an alleged expressed trust on the proceeds of the sale created by the decedent for the appellants’ benefit. Appellants filed their original petition on the final day of the statutory six-month limitation for filing a claim against the estate. § 473.360 The appellants sought to amend their petition some eight months after the original filing. The proffered amendment stated a new cause of action grounded in the law of contract and trust. Appellants contend that such an amendment was not barred by the non-claim statute, § 473.360, in that the claim sought recovery of assets not properly within the decedent’s probate estate. They allege that the decedent promised to fulfill the intention of Article Fifteen which was to benefit them and that the proceeds of the sale of the business would be held for them as consideration for their promise to remain in the employment of the purchaser. They also contend that this promise was proven at trial by their testimony. All three appellants testified at trial on such matters under an offer of proof. However, appellants fail to recognize that the trial court properly excluded their testimony pursuant to the mandates of its Dead Man’s Statute.

Evidence was also adduced at trial on this subject by appellant Bucher’s wife. The trial court properly found her testimony competent, Martin v. Abernathy, 220 Mo.App. 76, 278 S.W. 1060, 1051 (1926), but inadequate and inconsistent. Consequently, it specifically found that the decedent made no promise to give the appellants the proceeds from the sale of his going business. Credibility was for the trial court. Murphy v. Carron, supra.

Judgment affirmed.

CRIST and CRANDALL, JJ., concur.

      . All statutory references are to RSMo 1978 unless otherwise indicated.