forfeiture clause in Missouri

2008When addressing the application of the forfeiture doctrine to cases involving domestic violence, the Giles Court expressly identified the types of evidence probative in finding a defendant’s intent to prevent the victim from testifying at trial. 128 S.Ct. at 2693 .

2008Specifically, the Court stated that evidence of “[e]arlier abuse, or threats of abuse, intended to dissuade the victim from reporting to outside help” and “evidence of ongoing criminal proceedings at which the victim would have been expected to testify” would be “highly relevant” to “support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine.” Id.

2022See Davis, 547 U.S. at 833 (internal citation omitted) (noting “federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard”);° see also McLaughlin, 265 S.W.3d at 271-72 ; Buechting, 633 $.W.3d at 377-78 (internal citations omitted).

2020We recognize that a forfeiture clause is to be strictly construed, but we should not place a strained or overtechnical construction upon the language used in order to enable a beneficiary to take under the [trust] and thus ignore the condition imposed and accordingly refuse to give effect to the intent of the [settlor]. 318 S.W.2d at 302 .

2003C & M Bonding argues that Mr. Schenecker’s authority was expressly limited by the Power of Attorney, which only entitled the bonding agent to execute bonds in an amount not to exceed $10,000. 3 Relying on State v. Velez, 970 S.W.2d 386 , C & M Bonding contends the court erred in allowing Mr. Schenecker to appear at the forfeiture hearing because the agent had no express authority to do anything more than post bonds on the surety’s behalf.

2003C & M Bonding argues that Mr. Schenecker’s authority was expressly limited by the Power of Attorney, which only entitled the bonding agent to execute bonds in an amount not to exceed $10,000. 3 Relying on State v. Velez, 970 S.W.2d 386 , C & M Bonding contends the court erred in allowing Mr. Schenecker to appear at the forfeiture hearing because the agent had no express authority to do anything more than post bonds on the surety’s behalf.

1998Id.

1989Flath v. Bauman, 722 S.W.2d at 130 ; citing First National Bank of West Plains v. King, 363 S.W.2d 590, 595 (Mo.1963).

1983Grebing v. First National Bank of Cape Girardeau, 613 S.W.2d 872, 875-76 (Mo.App.1981). 2 The Company correctly notes the non-enforcement as to these small amounts (de minimis) involving employees who left in the 1960’s is explainable because the case of Allredge v. The City National Bank and Trust Co. of Kansas City, 468 S.W.2d 1 (Mo.1971), had not been handed down which for the first time upheld in Missouri a forfeiture clause in a profit sharing plan based upon competitive activities.

1983Waiver has been described in Ehrle, supra, at 489 as follows: “[A]n intentional relinquishment of a known right, on the question of which the intention of the party charged with waiver is controlling and, if not shown by express declarations but implied by conduct, there must be a clear, unequivocal and decisive act of the party showing such purpose, and so consistent with the intention to waive that no other reasonable explanation is possible.” It cannot be said the payment of the small amounts to three employees in the 1960’s is conduct “so unequivocal” as to waive the written forfeiture pro

1983The Allredge rationale is explained in Grebing, supra. 3 In Fine v. Semet, 514 F.Supp. 34 (S.D.Fla.1981), the plaintiff terminated his position in a law firm and requested a lump sum payment of over $48,000 representing his accrued benefits.

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1978For Missouri cases involving real estate contract clauses of the general type under consideration, discussing the distinction between provisions for forfeiture or penalty on the one hand and provisions for liquidated damages on the other, and reaching varying results on varying facts, see, among others: Plymouth Securities Company v. Johnson, 335 S.W.2d 142 (Mo. 1960); Robert Blond Meat Company v. Eisen-berg, 273 S.W.2d 297 (Mo.1954); Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Long v. Lackawanna Coal and Iron Co., 233 Mo. 713 , 136 S.W. 673 (Mo.1911); Morse v. Rathburn, 42 Mo. 594 (1868); B

1969Corrigan Company Mechanical Contractors, Inc. v. Fleischer, Mo.App., 423 S.W.2d 209 .

1934American Fire Insurance Co. v. Ellison, 269 Mo. 410 , 190 S. W. 879 , l. c. 882, the Supreme Court announces again the following rule in interpreting an insurance contract : “The forfeiture clause here in question is part of a solemn contract made between corporations, both of which are competent to make contracts; there is no phase of equitable jurisdiction involved or invoked.

1934American Fire Insurance Co. v. Ellison, 269 Mo. 410 , 190 S. W. 879 , l. c. 882, the Supreme Court announces again the following rule in interpreting an insurance contract : “The forfeiture clause here in question is part of a solemn contract made between corporations, both of which are competent to make contracts; there is no phase of equitable jurisdiction involved or invoked.

1929This construction leaves the maxim to apply to vexatious and unfounded litigation, and so construed the forfeiture clause will not wholly perish." It was held that there was probable cause for the contest. *Page 1100 In Tate v. Camp, supra, 147 Tenn. 137 , 26 A.L.R. 755 , it was held that a forfeiture provision in a will is not void as against public policy, but it was also held that an exception to the rule sustaining a forfeiture, should be made by the court, where the contest was prosecuted in good faith, and upon probable cause.

1917Whether he did or not, it could certainly have had no more force if posted than if formally expressed in a lease between him and appellant, and in such case notice to vacate must have been given to respondent.” The cases of Long v. Rucker, 166 Mo. App. 572, 583 , 149 S. W. 1051 and Tarlotting v. Bokern, 95 Mo. 541 , 8 S. W. 547 , decided since the amendment of the statute above mentioned, both hold that the mere nonpayment of rent when due will not support an action in ejectment in the absence of a forfeiture clause in the lease.

1917Whether he did or not, it could certainly have had no more force if posted than if formally expressed in a lease between him and appellant, and in such case notice to vacate must have been given to respondent.” The cases of Long v. Rucker, 166 Mo. App. 572, 583 , 149 S. W. 1051 and Tarlotting v. Bokern, 95 Mo. 541 , 8 S. W. 547 , decided since the amendment of the statute above mentioned, both hold that the mere nonpayment of rent when due will not support an action in ejectment in the absence of a forfeiture clause in the lease.

1917Whether he did or not, it could certainly have had no more force if posted than if formally expressed in a lease between him and appellant, and in such case notice to vacate must have been given to respondent.” The cases of Long v. Rucker, 166 Mo. App. 572, 583 , 149 S. W. 1051 and Tarlotting v. Bokern, 95 Mo. 541 , 8 S. W. 547 , decided since the amendment of the statute above mentioned, both hold that the mere nonpayment of rent when due will not support an action in ejectment in the absence of a forfeiture clause in the lease.

1915W., 180 Mo. App. 523 ; Mathews v. Modern Woodmen, 236 Mo. 326 ; McMahon v. Maccabees, 151 Mo. 522 .] There are two principal grounds upon which plaintiff argues that the forfeiture under rule 64 should not be enforced, i. e., that it is wholly without consideration from defendant and that it is immoral and opposed to a sound public policy, for the reason that it is nothing more nor less than an- attempt by defendant to enforce an agreement to release it in advance from the consequences of its own future negligence.

1915W., 180 Mo. App. 523 ; Mathews v. Modern Woodmen, 236 Mo. 326 ; McMahon v. Maccabees, 151 Mo. 522 .] There are two principal grounds upon which plaintiff argues that the forfeiture under rule 64 should not be enforced, i. e., that it is wholly without consideration from defendant and that it is immoral and opposed to a sound public policy, for the reason that it is nothing more nor less than an- attempt by defendant to enforce an agreement to release it in advance from the consequences of its own future negligence.