*1 Mexico, (Mattes Trust Co. Mo. Commissioner Cantley, Missouri v. Finance) (Mo. W. App.), (2d) 412, 39 S. 414.] argue question constitute Defendants that the account in did not deposit deposit a a special general but that it was and that issuing employees merely checks plan drafts to its instead of adopted by plaintiff purpose enabling plaintiff a for means payment evade the federal check tax which was then agree We are force. unable to The this contention. fact by making arrangement plaintiff escape such ail enabled to a changing federal tax on checks cannot have the effect of the relation- ship agent and the from that of bank change debtor, that of creditor and nor can it of the de- the character special posit deposit general from a deposit undisputed under the plaintiff deposited evidence this record. The fact from time payroll in the representing time account small sums cafeteria re- change ceipts special general did not the account from a ato account deposits, according undisputed because evidence, went purpose being fund for specific into the the sole and used to build payroll subsequent up payrolls. account judge are satisfied that the
We circuit conclusion, reached the therefore, judgment is, Hostetier, J., and the affirmed. Becker, P. J., concur. Company, Corporation, (Plaintiff) Truck
Indiana Respondent, Company, Standard Accident Insurance a Corporation, v. Appellant. 89 S. W. (Defendant) (2d) 97. January 7, Appeals. Opinion
St. Louis Court of 1936. filed *2 Hayden Leritz, appellant. J. D. L. Merritt TJ. A. E. Gardner and *3 J. respondent.- Wm. Becker for
BENNICK, C. action, —This grows 'which out of-'a' -controversy payment over the for highway certain -construction1work Louis St. ;and County, proceeds upon theory had received. The' question case has to do with the of the validity certain'assignments" -Of' principal contractor subcontractor -job' On'the and- plaintiff, him in turn made over to the' same relating to funds alleged by owing* to have been due and to the subcontractor’s instead County,' latter
assignor; Louis but from St. disregard of contractor, principal defendant; surety for- the assignments. priorities said appeal the second in: that is unusual this- is somewhat The situation trial one although has been but there case, in the court this Truck Com- Indiana Originally, plaintiff, case in court. .lower Company, the Insurance pany, sued both Standard. Accident joint County bond, St. Louis as contractor’s favor jury, a verdict was returned Upon a . trial defendants. aggregate company, in the against insurance county. com- The insurance of the $1,498.75, but -favor sum -in complaining trial for a new filed its pany thereupon motion correspondingly it, filed against while rendered verdict favor verdict in of the complaining-, the- a new trial for motion county. company’s motion- insurance The court -overruled conformity against it judgment final purported to render against anew trial plaintiff.’s verdict, motion but-sustained among others,-that the verdict ground, county upon-the weight against the evidence: ! -company applied for In state: record insurance court, wherein, .-upon to this the submis granted appeal an and was reason, appeal-was case, dismissed sion having; taken, appealable been no prematurely: there has been same ,the case, not-definitely disposed long as the judgment case so awaiting party still a the cause county which was granted from which order had which the court trial new Company v. Accident Insu Truck appealed.' Standard not. [Indiana ) subsequent (Mo. (2d In the App.), S. W. Company rance 486.] *4 as, dismissed to’the- lower court the cause was proceedings in the. having against 'company insurance the county;.and judgment the appeal court, so again took its. to this thereby, final, been made it permit brought circumstances to us under at that the Caseis last on its merits. appeal us to entertain the wholly the. case are almost uncontroverted The material facts of evidence. pleadings or in the in the either Company Construction into- Vinita entered the On June acting' through county, the latter the separate contracts three representatives, whereby the con- duly and accredited elected proper expense, do, own agreed at its and struction cost of projects on certain the construction work required all the territorial, limits of county within the located the three drives City Louis, immediately St. of of and north the miles point several of Riverview Gardens. east which were identical contracts, of said save as terms Under the agreed county thereof, the to pay the: the cost cover and projects cash, $2,387, aggregate of less the sum 5% work, proportionate of the total and final own for the as its estimate tax bills to expense special
share of projects, the of to cause the and for- against improvements property abutting issued on the the the balance of the cost thereof. work, agreement, completion
Pursuant to"such of- the at the and. county appear, which will presently circumstances -aggregate defendant, cash rather than final $1,059.14, though appear computing sum of it would that in Northridge payment projects Drive, due one of the known de- underpaid fendant reason- $424. was to the extent of This for the county of originally agreed whereas the had the sum $870, estimate, less of the total final of and towards the cost 5% particular this project, preparation the final in- of settlement figure county highway engineer, $446 was used sug- accordingly. sum due defendant seems determined Plaintiff gest in underpayment its brief that the was due to an error on the part although engineer, of the evidence ac- defendant’s was that it cepted payment represented the smaller cash the because county particular project. could allow on that provisions
One of the of the contracts in the event defaults, certain delays, described or part failures on the of the con- beginning, completion tractor the matter prosecution work, engineer give writing should notice surety delay, contractor neglect, default, of such or. specifying same, if, period days thereafter, and within a of ten the contrac- tor or its. proceed not therewith, should accordance then upon report engineer delay .by. of such court should take, power authority; have full violating without contracts, .to prosecution contractor, out hands appropriate or equipment materials,. use certain of its agreement enter into an completion thecontracts, all costs charges moneys to be deducted from due the contractor. provisions There were further of the contracts which do scope payments with the percentages pending retained com- pletion payment of the work and the claims, being of all the same importance only virtue thereof the amount entire cash due the contractor retained until after the three finally completed. had been drives quite provision,
Still another and one of importance considerable ease, assignments money in the was to the that no effect due or to *5 recognized county become due under the contracts should be the, assignment writing, by. unless such executed contractor, approved surety, engineer, and filed with only and then subject prior labor, claims and materials, supplies, liens and necessarily inci- with, or as in, upon,'in connection
equipment used provided for. to the work dent and Upon of said contracts between the execution com- date, construction on the same surety thereon, in bond, gave statutory with defendant pany con- contracts, representing" amount'of the the total penal-sum a com- being, effect, that if the construction of the bond sideration con- its said truly perform all the terms of well' and pany should therein, and should mentioned with the within the time tracts in, performed labor furnished or pay all lawful claims' for materials with, incident to the construc- necessarily in connection or as upon, obligation void, should be but' other- highways, then the tion ' ' effect. it should remain full wise force ' company into a '-'entered sub- On June in con- the-grading'work to be done contract with one Though-the insurance projects. with the three construction nection brief, uncertainty expresses company in some little the course as; Emory’s- -is, was a status, about' to-whether he' subcon- true' that -performed his tractor under the construction or'whether'he directly county, actually it admitted its answer company, -and 'the construction the'evi- he was subcontractor under principal In fact contracts them- in the case' so showed. dence letting -specific provision for with subcontracts selves n county, thohgh emphasizing no the consent Of subcon- such principal to' relieve the contractor of all its lia- tract should serve county. obligations under its contracts with the bilities-and (cid:127) By entirely April- 25, 1928, Emory either or com- practically pleted by his with the work called for subcontract the construction date, company,-and'on in consideration of the work labor performed part payment therefor, 'company in' the construction separate assignments, executed to him three written each of which particular improvements, assigning- Emory one -of related to company’s all the construction and interest in'and to the cash payments due or to become due the Construction the contracts theretofore into entered between the two, thereby authorizing and empowering receive cash extent $1,375, give and to complete' discharge county a full and acquittance therefor. assignments' given signature Each of such' over the company acting through president, in addition approval on-its face written each them: bore bond, conformably requirements surety on the with' the- noted in having contracts do of money ' " ... to become due. point entered was at It this case the course *6 negotiations and-Emory to of- it sale looking the. between .it desired of certain motor tracks its which he of manufacture the construction contracts under completion use in certain engaged. Emory proposed which he was then to turn over to plain- assignments tiff, part payment trucks, for the his the three from him; upon proposal being accepted construction his by plaintiff, 28, 1928, placed under date of he own as- April his signment plaintiff upon the reverse side of of the three each as- signments company, reciting that for' construction .therein assigned thereby value received he and transferred to assignments his title and interest -and to and in the such and to benefits conferred thereby.
Upon receipt assignments Emory, the of. took them forthwith to the office of the highway engineer -while, an,d making purpose validity, certain as their it-was given assignments to understand authorities that the the valid, suggestion they were was. made that taken nevertheless City to defendant’s office in the St. ap- .of Louis defendant’s proval. of the suggestion, transaction. Plaintiff followed upon inquiry of defendant necessary whether it. would be that der fendant, surety bond, as on the should note on instruments .the acceptance fact of its from Emory , prior acceptance was told course, Plaintiff, sufficient. undoubtedly provision had in mind re- contracts the. quiring approval as a surety condition precedent any assignment validity of due or to due under become contracts, though provision, reassign- whether such extended to assignments already duly approved by might ments quite question. another After transaction office, plaintiff took its its with office, back and later caused filed :own them be record, being each stamped instrument show, .on face.so as to clerk, signatures over the the,presid- court ing thereof, judge ordered received and on filed May 25, 1928. Now far projects as the work concerned, on the appears .it early that as 28, 1927, within six months exe-- after the December contracts,- -highway engineer, acting cution. powers under the him by contracts, conferred found it necessary give notice to the construction and to defend- begun ant on that unless bond was. within days cojn- ten equipment men early sufficient to insure the pletion projects, certify he would to the county .court that projects default. It would up seem to that time the only projects grading done had been excavating
'70 com- with the his subcontract
done pany. up with the thereupon the matter
Defendant took con- of 1929 though unavailingly, summer neither it had *7 finally advised defendant company struction able be it would not and that equipment men nor the to do the work county continued projects. As went on the continue with the time to work, record dis- completion the the pressing defendant for the county engineer under closing highway' to from the letter defendant demanding again commencement 18, 1929, the the date November would threatening he work, unless this was done and county request court, the certify the to and the fact of default the con- prosecution of out of the hands of the court to the work take company. struction controversy defendant,
The numerous details of the between company unimportance this county, and are the construction 1929, construc- appeal say other than to that on December assignment defendant, trans- company its written to tion executed ferring rights, title, interest assigning all its and and to defendant directing payments'thereunder, all in and the contracts and and payments, all be issued defendant. made and all tax bills be assignment given part a- con- as contract between the Such company not defendant, struction but to by agreed, things, party, among the' terms of which defendant' other payments remaining expenses surplus all after had All company. taken care of would over strongly significance tending of this is bear out recognized any contention at no on time contractor job company itself, and, fact, other than the construction in' payments record discloses that the several the work were made for assignee by not defendant,' contractor, merely but as' company: of the construction by
It assignment seems that prior at some time the construc- company fights tion contracts, to defendant of the former agreement laying had entered into a for written Lane one ' assignment projects. concrete in connection with the After three question, engaged complete in defendant its own Lane to on account, by August, improvements which Lane three did all being accepted county, payments' thereafter in cash defendant, tax bills made to ás has been heretofore disclosed. We $1,059.14, repeat cash, that defendant received the sum only importance, -in' being cash ones inasmuch as the (cid:127) executed the construction reassigned only him pay- turn referred to cash ments or to due become due the construction (cid:127) ‘' = county. completion of
Some little time after defendant had undertaken work, Emory presented bill to for what must his Actually $3,162.95. it would been the balance due him the sum of Emory’s seem from the final that the estimates the work balance $3,259.22. defendant, bills have been should But as it this may, February 4, 1930, paid Emory on the former sum in' full Satisfac- against tion release of claims all he had the constriction com- assign- pany, and in consideration thereof from written took him-his title, any' all his right, ment of interest and to and all funds coming bills from projects, and tax account of such County he authorized the deliver might‘be him sums of tax bills that due assignments' from under and virtue of his the construction com- " n ‘ ’ nnn ' pany. throughout ássignménts insists Defendant that in taking *8 knowledge on Emory February 4, 1930, previous it had no of' his reassignments though to of own evidence was directly contrary. assijgnment course to the It caused its own to county court, county' with filed the and in time saw to the fit due' disregard assignment, assign- honor defendant’s and to previous the funds,'thus filed plaintiff laying ments to samé thé'foundation present by plaintiff against action (cid:127)"> defendant! controversy, nutshell, So the ain is one whéré defendant'became surety 1927; company on bond of 21, the construction on' Juné Emory where was thereafter done projects' on the April with company/where-on 25, subcontract the construction 1928-, per- the construction in consideration of wo'ik by Emory, assigned formed' to him its ‘in and to and interest payments cash or to due it from become due thé county $1,375; assignments extent of where such froin the "construction com- Emory pany bond; approved by to were defendant as on the Emory, knowledge consideration,- where for a valuable 'and with' the defendant, reassigned’ and consent of assignments himself 'to- April 28/1928; assignments on where-plaintiff’s were re- and May '25,’-1928; ceived filed with the court-oh where de- fendant, upon up the failure of the company to live to county,- 11,' 1929, its contracts with on -the December to'ok over the completion projects, took Company and from the-construction assignment right, an of all title, in its Interest1 And to con- said payments thereunder; February tracts and the to be where on- 4, 1930, in of certain consideration to1 mádé' by--defendant performed in the of satisfaction claim-for labor his assigned In- projects, right;*title,'and to1'defendant all his latter county, authorized from the in due terest all funds might been due-him all that money defendant com- assignments under, from the construction.- and, -virtue: of .the Emory.to- defendant him; assignment-from where pany to county court .with, court; and .where thereupon the-cpunty filed com- assignee the construction defendant, as to; thereafter due, payment total cash sum,-of,;$1,059.14,. -cash pany, same .assignments'covering the .plaintiff’s so.doing;disregarded which, one-half assignments,had. two and on for some fund, file made. years .payments .to when the defendant.were action for its facts, has upon-such It is based its, county’s theory being, virtue received, 4, 1930, assignment February recognition- Emory’s disregard plain- defendant-..thereunder, payment and the in. of, duly were, April 28, 1928, assignments, which rights-under tiff’s 25, 1928, defendant now May on has with the court filed rightfully belong plain- retaining arid is. possession funds pay over equity and.-good conscience it. should tiff, plaintiff. .. (cid:127)Defendant’s, theory set-up specific -no defense answer from, colloquies face,-.but several statements .in its-counsel was, court, theory that its counsel-it is.evident between trial and. company- to: effect, having nothing force and been- the construction no -due there- tp subject assignment, either company from an date, from the construction the. on;-April- Emory, time, view of the fact or' other - construction, nothing did under its contracts -abandoned, the'same, with the. result work-had but that-.the county, be, .by payments for completed to whom all done *9 work,- -belonged; rightfully after all therefore that subcontractors for. labor and materials furnished were and claimants as the nothing remaining required,- there was contract^ .therefore, company,--and nothing remaining for it assign; reassignments,from Emory plaintiff were in and that.the writing invalid, .they approved by in in de- any event .were not bond, county fendant on-.the and were filed with the as not required highway by, principal contracts. all as engineef, n In by might jury,, well fact, its- one instruction ‡0 .to,have thought question sole limited-the whether issues at, any time due the construction com- any there were cash assigned. reason that the instruction This went pany for the. fo jury, was no further than to that-if not indebted tell company, April 25, 1928, or at time to- the .there- on .construction contracts, after, work- lab or-furnished under then as- for. its. conveyed and Enlory company to signments from the construction nothing acquired consequently assigned nothing'to'him, plaintiff n ; by reassignments to'it. hand, work done that All theory,' on1the Other Plaintiff’s ..was" itself category subcontractors; projects by agree- an projects" of the Under completion fell the matter county was not company tó which1the with the construction ment far itself so party the work concerned; Work that the obligation was1 of the therefor to him-was Emory the time of assignments; done before primarily indebted tó the county was for Which the even, due at though ihay have' been payment therefor not con- time; consequently’ payments due the were cash that there assignment's 'which company at the time struction subject the'present're- assignment'; proper were the rightfully money-which be- funds, defendant holds tention reassignments longs priorities under the plaintiff virtue of its , Emory. from $1;375, amount sued plaintiff the full jury allowed the sum
The aggregate amount interest, brought for, which, with the verdict to the judgment in con- $1,498.75. appeal from the entered Defendant’s we formity has followed under the therewith circumstances n ' : ‘ pointed have heretofore out.- should insists with much earnestness there Defendant evidence, assert- of all'the a verdict directed for it the close has its'point upon contentions which it ing as the all the basis n together mat- other directly beloVr, with cértain founded defense fit upon not that-it heretofore seen which we are so sure has ters place deal of-reliance. great reassignm'entS Emory to argues at the Outset that It they approved it, nor filed with the were not were con- highway engineer, required contracts between :the precedent to'their struction and'the as'conditions'1 ‘‘ ....... validity. reassighments' to regards approval As the matter of its of'plain- ih present contention comes the'face defendant’s assignments to it-from tiff’s'positive evidence to the that'the effect Office, were'there taken-by plaintiff to defendant’s charge. defendant’s approved by It is true that the’latter’s officers reássignments indorsed approval not not writing, answer that the contracts did' but the is' instruments approval of- as- require. will be recalled that defendant’s It Emory; company; principal,1 its- signments from the' construction *10 subcontractor, Upon the face of the indorsed! the latter’s necessarily all, principal instruments; contracts were after and only money, concerned the. construction with due or to become .due company, thereunder, to proyisions having and. contracts assignments by. do with the their specifically, matter of were limited contractor, own terms to-assignment^, by .executed .the, company. assignments, Consequently, construction if-the valid,, thereupon acquired evi- something value as .were fie by such.assignments, denced such circumstances could he under reassign or for thereafter that and- the same .transfer ope any chose,, any way rights prejudicing matter without he as.surety qn .. the bond.- defendant assign- provide, points out, as that for defendant .The contracts did ments, or, recognized money to become due to be due .thereunder it,.was pounty necessary.that engineer, the same be filed with requirement complied .plaintiff. Upon but this was likewise (cid:127) acquisition assignments Emory, plaintiff took the. them engineer,, express forthwith at his directions that it.was they were then approval, taken defendant thence to .to .for county court, engineer’s principal was the the matter (cid:127) assignments -projects, where the were construction. n (cid:127) received filed.. ordered controversy question.of validity The is reduced therefore assignments company Emory, from. the construction for they reassignment originally executed, Emory’s were then valid as plaintiff of them to was effectual as the latter now contends. As to this, argues from the construction company to Emory theory invalid no .that ever due or company county, due the from the became company anything time had no value assign. Consequently Emory, insists inasmuch n theory case, acquired of-the .nothing under his nothing pass he had to. and trans- .of, by way fer reassignment, therefore could acquired no due or to .interest become county. due from the thipk defendant’s.argument
We respect clearly in this is erroneous. county’s-.obíigation work, .though The even done construction, subcontractor, it owed .qne w;hich .was contractor, .which, turn, was then indebted to its own subcontractor virtue of the terms and provisions therefor Consequently, Emory’s subcontract. the .moment that work had been performed indebted it to the construction com- became the, pany, cbhstruction from that moment had some- assign county’s valuable to thing indebtedness had then payment accrued, though even of such may indebtedness not have
75 v. Purchasing Co. due until some time thereafter. [Service Brennan, App. 110, (2d) 226 12 S. W. Mo. 39.] abundantly that shows In fact the whole course of the transaction recognized any company county never one but construction payments with whieh to deal. Even the as the contractor it was assignee eventually made were made to it as the to defendant indicating company, construction that between .thus event county itself, parties accepted and defendant the view both payments whatever due from the were- to were due the con- payments struction and that to be made to defendant were company they assignee only as the of the construction because were payments company assigned. due the construction which could be in county repeatedly It is to be borne mind while the threatened company default, to construction so, declare the it never but did contractor; continued to treat it as defendant, and that while fact, work, only completed so did virtue of a contract en- into company tered between it and party. was a repeat, therefore, not We due from the due from company were it to the construction so concerned, far consequently as the and that the sums due company subject assigned the construction by it, were turn to be only provided provisions that the having the contracts to do with assignments making duly complied were first with. suggestion, Defendant makes the further in which we do not be- very any event, lieve that it is serious, any before money payable county, Emory from the both company the construction assigned respective all of their interest in and to defendant, back to so that thereby claim was rendered un- availing. Manifestly, if the from the construction com- pany Emory valid, reassignments were if Emory from valid, reassignments were and if plaintiff’s were thereafter filed in due county court, course with the all of which occurred more yéar eight than one making assignment months before the defendant, Emory’s assignment subsequent then regardless defendant, may of what have been intended as between him defendant, not could destroy served affect and rights whieh had theretofore vested in become virtue reassignments duly received and filed as indicated.
Finally point makes that aside from all other con- siderations, company least, wholly against void unenforceable prior superior equities arising by of virtue of its contract suretyship, by which, account the failure of the construction work, complete position it found itself in a where compelled performance it was to take over the obligations county, and .contracts with- the under its doing a sustain loss. n Thereis Bank v. United Prairie decisions,, line of which State leading case,
States, 412, 164 U. 41 L. Ed. is the S. S. Ct. surety on a right .equitable subrogation .accord .of of the de completed contractor ’s bond when the the work has faulting subrogation from and re contractor, which arises *12 obligation surety’s inception back to the time of lates of the the superior equity, is loaned any, party to the if a who has of third money contract, even following* to the contractor execution of his the money though the loaned has been used to for-labor and materials employed prosecution in upon theory the of work. This the the loaning the party money third contractor a mere volun acts as agreement supposed rights presumed teer faith' of a of thereunder, following inception point suretyship all in of time, discharges making positive while the in a his n obligation performance which he all bound was at times under the suretyship contract of his which into and formed entered part a of the principal contract itself.- obviously salutary
The upon doctrine so.stated is a one and founded principles established equity, principal but there are two why reasons application it can have.no hand.' In the the facts at place, Emory first occupy not a does the status of mere volunteer dealings. who has with the be contractor and who-is to charged, knowledge rights equities arising and’ under contract, subcontractor, but was a performed instead he who projects,'and labor on right’-to paid whose therefor, as he-was by assignments question, by very -in wás himto the- vouchsafed contracts under right-of which equitable defendant now claims its - subrogation. In-fact, obligations one defendant’s bond its was to to it parties see that the of all such Emory claims would preferential a beyond accorded this, status: -all But the contracts permitted assignments themselves contemplated making - upon the contractor conditions, certain approving stated in- assignments which company pur- suant contracts, to the -terms clearly defendant waived right might- it otherwise have had to a priority have claimed over Moreover, significant the same. it is that so- as -the far were concerned defendant loss, making sustained no since final settlement with undoubtedly it him a represent only sum which intended to claim balance his after the samei had been satisfied to the extent covered theretofore made over to him ¡ company. brings question This -pro- us. then to the whether
77 received, money ceeding has selected upon theory of had ánd action. Of this we of his proper remedy for the assertion cause though--defendant doubt, there no reasonable room for think can be length contrary. action argues -very of -an basis some The money money has received and received is that belongs equity rightfully plaintiff, to ’the Moreover -action good. ought over to him. to-pay conscience tendency being widen- rather than to re one, is flexible with the strict, fact, so, is.permitted much court scope,’ that the principles just conclusion equitable turn even to order to reach (Mo. App.), v. facts before-it. Wilson [Whitecotton 168; W. S. Federal Land Bank St. Louis International Life v. W. 822; (Mo. Montgomery College App.), 260 S. Insurance Co. v. Security (Mo. App.), (2d) 971; Mound Trust Co. S. W. Doerner Crematory v. St. (Mo. App.), Louis & Mausoleum Co. 80 S. W. ] . 1 (2d) 72 light argued Even in the which are for by tests of an .received, essentials action for had and case requirements.- amply at hand seems meet all the Under *13 theory case, equities of proof disclosed, as its under its prior superior equity of subsequent assignment, accepting payment so -that in county, retaining money1 right- defendant has -received. and is which fully gone by plaintiff should as- have under and virtue of its duly signments executed to it and on file It with court. follows, plaintiff’s therefore, that case one for the determination jury; of the denying the court properly ruled re- defendant’s quest for a directed favor. verdict in its objections fqr given
There are certain to the instructions plaintiff, objections having principally questions to do with have which discussed, adversely been heretofore and determined to defendant’s respects In of- contentions. none in- noted defendant .were the rights, prejudicial structions appeared such inaccuracies as re- lating to reasonably1 matters that could not be have calculated to jury. assigned misled the Likewise are points there certain other error which' -by have either been abandoned defendant in course argument, of its brief have sufficiently or else been covered what we have question- said in-connection with the raised- on the de- n - - ’ ;*'! murrer to the evidence. -come, Finally the'point wé excessive, that the verdict is. w.e Though point well plaintiff’s think this is- taken. assignments were $1,375, sum, for the sum which with incidentally, thereon, .interest jury plaintiff awarded as the measure of its recovery, ap- actually pears that defendant received from county only $1,059.14 in cash sum money had applied. Manifestly in this action for
could from defendant is not to recover more .plaintiff and received entitled plaintiff. holding use has received and is to the than defendant obviously pur- as it far Consequently, the verdict excessive is $1,059.14, in- over and with ports to sum above award $344.3.3, terest, we and which an have calculated at excess- judg- entry a condition a plaintiff as should be remitted of the present in the case. in its favor status ment plaintiff will Accordingly, if Commissioner recommends that judgment days $344.33, sum of circuit within ten remit the a reversed, new court and the cause remanded with directions against judgment defendant, be entered favor of cent, per $1,154.42, the sum thereon at the rate of six interest finality per date annum from December- judgment from; judgment appealed otherwise re- and that trial. versed and cause remanded for new adopted foregoing opinion Bennick, C., PER CURIAM4The is judgment is, court opinion of court. The the circuit ac- as the cordingly, and the cause remanded with directions recom- reversed Commissioner, provided enters remittitwr mended ten-days; judgment-is reversed, within otherwise the and- the $344.33 Hostetter, J., a new trial. Beaker- remanded for P. .and cause McCullen, JJ., concur. the Matter Greening,
In Estate of Thomas Deceased, J.
Guida Foster, Administratrix, County, Missouri, Monroe Appellant, Greening, Executor, v. T. W. County, Ralls Respondent. 89 S. W. Missouri, (2d) 123. *14 Appeals. Opinion January 7, Court of
St. Louis filed 1936.