just claim in Missouri

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1974The just principle acted upon by the courts in the circumstances suggested requires no more than that, in every instance, the agent shall be afforded a reasonable opportunity to avail himself of the primary expenditures and efforts put forth to the end of executing the authority conferred upon him and that, if *517 such opportunity is denied him, the principal shall compensate him accordingly.” In Glover v. Henderson, 120 Mo. 367 , 25 S.W. 175 (1894) the defendant discharged plaintiff, a salesman, who sued and recovered the value of services and expenses.

1974The just principle acted upon by the courts in the circumstances suggested requires no more than that, in every instance, the agent shall be afforded a reasonable opportunity to avail himself of the primary expenditures and efforts put forth to the end of executing the authority conferred upon him and that, if *517 such opportunity is denied him, the principal shall compensate him accordingly.” In Glover v. Henderson, 120 Mo. 367 , 25 S.W. 175 (1894) the defendant discharged plaintiff, a salesman, who sued and recovered the value of services and expenses.

1930It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty legal or equitable which would give him a just claim.” (Italics ours.) In Lumber Co. v. Schwartz, 163 Mo. App. 659, 665 , it is stated: *1037 “A third person for whose benefit a contract is made may enforce the contract in an action prosecuted in his own name and in an action on a common-law bond of the nature of that in suit a materialman for whose benefit the bond was taken may sue as plaintiff. ’ ’ That there was such a privity between the insured and the dece

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

2015Express Agency, 321 U.S. 342, 348-49 , 64 S.Ct. 582, 586 , 88 L.Ed. 788 (1944), “The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims.in time comes to prevail over the right to prosecute them.” Id. at 349 , 64 S.Ct. 582, 586 .

2015Express Agency, 321 U.S. 342, 348-49 , 64 S.Ct. 582, 586 , 88 L.Ed. 788 (1944), “The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims.in time comes to prevail over the right to prosecute them.” Id. at 349 , 64 S.Ct. 582, 586 .

1964Joseph and Council Bluffs Railroad Company, 196 Mo. 550 , 94 S.W. 256 ; State v. Martin, 364 Mo. 258 , 260 S.W.2d 536 .

1964Joseph and Council Bluffs Railroad Company, 196 Mo. 550 , 94 S.W. 256 ; State v. Martin, 364 Mo. 258 , 260 S.W.2d 536 .

1964I would appreciate it if you would write back telling how you feel about this, and if I don’t have a just claim.” Appellant makes but a single point on this appeal, that is, that the trial court erred in holding that the additional evidence introduced by appellant did not overcome the presumption that the gift “was invalid as being prompted by undue influence.” She relies on cases which she contends hold that in the absence of any evidence the presumption rules the issue, but when substantial evidence to rebut the presumption is presented it then “will lose all force and vanish when the facts

1964I would appreciate it if you would write back telling how you feel about this, and if I don’t have a just claim.” Appellant makes but a single point on this appeal, that is, that the trial court erred in holding that the additional evidence introduced by appellant did not overcome the presumption that the gift “was invalid as being prompted by undue influence.” She relies on cases which she contends hold that in the absence of any evidence the presumption rules the issue, but when substantial evidence to rebut the presumption is presented it then “will lose all force and vanish when the facts

1964I would appreciate it if you would write back telling how you feel about this, and if I don’t have a just claim.” Appellant makes but a single point on this appeal, that is, that the trial court erred in holding that the additional evidence introduced by appellant did not overcome the presumption that the gift “was invalid as being prompted by undue influence.” She relies on cases which she contends hold that in the absence of any evidence the presumption rules the issue, but when substantial evidence to rebut the presumption is presented it then “will lose all force and vanish when the facts

1964I would appreciate it if you would write back telling how you feel about this, and if I don't have a just claim." Appellant makes but a single point on this appeal, that is, that the trial court erred in holding that the additional evidence introduced by appellant did not overcome the presumption that the gift "was invalid as being prompted by undue influence." She relies on cases which she contends hold that in the absence of any evidence the presumption rules the issue, but when substantial evidence to rebut the presumption is presented it then "will lose all force and vanish when the facts

1964Joseph and Council Bluffs Railroad Company, 196 Mo. 550 , 94 S.W. 256 ; State v. Martin, 364 Mo. 258 , 260 S.W.2d 536 .

1964Joseph and Council Bluffs Railroad Company, 196 Mo. 550 , 94 S.W. 256 ; State v. Martin, 364 Mo. 258 , 260 S.W.2d 536 .

1938Co., supra; Glover v. Henderson, 120 Mo. 367 , 25 S. W. 175 ; Royal Remedy & Extract Co. v. Gregory Grocery Co., 90 Mo. App. 53 ; Mechem’s Agency, section 620.] *219 There is and can be no claim made in this case that the defendant had conferred on the plaintiff under the contract in question a power coupled with an interest, so as to bring him within the exception to the rule; and it follows that, as he had no interest in the subject matter of the agency, the principal had the power and, in a qualified sense, the right to revoke the agency at will. [State ex rel.

1911But the just principle acted upon by the courts in the circumstances suggested requires no more than in every instance the agent shall be afforded a reasonable opportunity to avail himself of the preliminary expenditure and efforts put forward to the end of executing the authority conferred, and if it is denied him that the principal should make compensation accordingly. [Glover v. Henderson, 120 Mo. 367 , 25 S. W. 175 ; Royal Remedy Co. v. Gregory Grocer Co., 90 Mo. App. 53 ; Davis v. Barr, 12 N. Y. 111 ; Mechem’s Agency, sec. 620.] It is obvious that the principle reflected in the limitation

1911“The obvious difficulty in its exposition has caused doubt and perplexity, springing from its general language and broad thought, in applying it to the varying phases of litigated cases; and its judicial history shows that its interpretation has not always been steady and certain.”- Citing several cases which have passed on this proviso, as having been either impliedly or expressly overruled by subsequent cases, the judge continues, commencing at the foot of page 327: “In the exposition of no section of the statute is there more call for the use of the just rule of interpretation that the spir

1909In the exposition of no section of the statute is there more call for use of the just rule of interpretation that the spirit of the statute as well as its letter must be carefully looked to. [Wade v. Hardy, 75 Mo. l. c. 400 et seq.; Orr v. Rode, 101 Mo. l. c. 398 et seq.; Chapman v. Dougherty, supra; Meier v. Thieman, 90 Mo. 433 ; Weiermueller v. Scullin, supra.] Keeping that rule in mind, we have held the reason of the exception is well stated by Dr. Wharton to he, “That when there is no mutuality there should not be admissibility; i. e., when the lips of one party to a contract are closed by

1975Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.” We recently had occasion in State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975), to note the tripling of the number of civil and criminal appeals to this court since the expansion of our jurisdiction by Constitutional Amendment and decisions of our Supreme Court.

1967Justification for this is stated in a 1922 decision, Rockwell v. Standard Stamping Co., 210 Mo.App. 168 , 241 S.W. 979, 981 , as follows: "Since the advent of the automobile and its almost universal use many accidents occur where the automobile speeds away from the scene. * * * In such cases it would be a harsh rule to require the plaintiff to do more than prove the ownership of the vehicle. * * * It is a just rule and one of necessity, especially since the advent of the automobile.

1967Justification for this is stated in a 1922 decision, Rockwell v. Standard Stamping Co., 210 Mo.App. 168 , 241 S.W. 979, 981 , as follows: "Since the advent of the automobile and its almost universal use many accidents occur where the automobile speeds away from the scene. * * * In such cases it would be a harsh rule to require the plaintiff to do more than prove the ownership of the vehicle. * * * It is a just rule and one of necessity, especially since the advent of the automobile.

1967Instant defendant relies upon the last sentence in Karns, supra, 30 S.W.2d at 246 , that “[w]e do not hesitate, therefore, to adopt the broad and just rule stated above, which conforms to a general rule approved by this court, requiring the injured party to a contract to do everything possible to minimize his damages.” (Emphasis ours) But “the broad and just rule stated above” was the rule as to what works an acceptance by the lessor of the lessee’s surrender of leased premises, and the italicized portion of the above-quoted sentence shows that the court simply pointed out that such rule confo

1934In Sauer v. City of Kansas, 69 Mo. 46 , it is said that "before a court of equity will enjoin a judgment at law, regular on its face, there must be some allegation and proof of injustice; and this injustice can only be shown by stating a defense which the court, before whom the petition is filed, considers a valid one." The court quotes, as stating the just rule, from Piggott v. Addicks (Iowa), 3 *Page 648 Greene, 427, that, "If it had appeared by the showing of the plaintiff that he had a meritorious defense to the claim, or any part of it, and that he had been deprived of making such defense

1934(Italics ours.) In 34 Corpus Juris, page 443, section 695, it is said: "It is not necessary to show conclusively that complainant has a sufficient cause of action or defense, but it suffices to establish good faith and tender a seriously litigable issue." [See, also, 34 C.J., p. 374, sec. 583; Hess v. Fox, 140 Mo. App. 437 , 124 S.W. 83 ; Gilliland v. Bondurant, supra, distinguishing Sauer v. City of Kansas, supra, and Greenard v. Isaacson (Mo. App.), 220 S.W. 694 .] We think that in the instant case plaintiff made a sufficient showing of a meritorious defense. [4] Lastly it is contended that

1934(Italics ours.) In 34 Corpus Juris, page 443, section 695, it is said: "It is not necessary to show conclusively that complainant has a sufficient cause of action or defense, but it suffices to establish good faith and tender a seriously litigable issue." [See, also, 34 C.J., p. 374, sec. 583; Hess v. Fox, 140 Mo. App. 437 , 124 S.W. 83 ; Gilliland v. Bondurant, supra, distinguishing Sauer v. City of Kansas, supra, and Greenard v. Isaacson (Mo. App.), 220 S.W. 694 .] We think that in the instant case plaintiff made a sufficient showing of a meritorious defense. [4] Lastly it is contended that

1934(Italics ours.) In 34 Corpus Juris, page 443, section 695, it is said: "It is not necessary to show conclusively that complainant has a sufficient cause of action or defense, but it suffices to establish good faith and tender a seriously litigable issue." [See, also, 34 C.J., p. 374, sec. 583; Hess v. Fox, 140 Mo. App. 437 , 124 S.W. 83 ; Gilliland v. Bondurant, supra, distinguishing Sauer v. City of Kansas, supra, and Greenard v. Isaacson (Mo. App.), 220 S.W. 694 .] We think that in the instant case plaintiff made a sufficient showing of a meritorious defense. [4] Lastly it is contended that

1930Co. (Wash.), 219 Pac. 12 ; Arizona Mutual Auto Ins.

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1917“It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. [City, to use, v. Von Phul, 133 Mo. 561 , 34 S. W. 843 ; Devers v. Howard, 144 Mo. 671 , 46 S. W. 625 ; State, to use, v. Cochrane, 264 Mo. 518 , 175 S. W. 599 .] “A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute. [Barnes v. Webster, 16 Mo. 258 .] And it is a well settled rule that a bond taken by a public officer in attempted

1915The law does not exact infallibility of any witness nor unduly punish a party for honest mistakes or inconsistencies in his testimony. [Downs v. Racine-Sattley Co., 175 Mo. App. 382 ; Huff v. Railway, 213 Mo. 495 .] Wadleigh may have intended to state the facts as the court understood him xo state them and have been honestly mistaken about them.

1915In Porter v. Woods, 138 Mo. l. c. 554, the Supreme Court quoted with approval the following excerpt from the opinion in Simpson v. Brown, 68 N. Y. 355 : “It is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration.

1915It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty legal or equitable which would give him a just claim. ’ ’ [City to use v. Von Phul, 133 Mo. 561 ; Rogers v. Gosnell, 58 Mo. 590 ; State ex rel v. Gaslight Co., 102 Mo. 482 ; Ellis v. Harrison, 104 Mo. 276 ; Lumber Co. v. Schwartz, 163 Mo. App. 659 .] This rule, as we observed in the recent case of Bank v. Chick, 170 Mo. App. 343 , has well-defined limitations.

1915The law does not exact infallibility of any witness nor unduly punish a party for honest mistakes or inconsistencies in his testimony. [Downs v. Racine-Sattley Co., 175 Mo. App. 382 ; Huff v. Railway, 213 Mo. 495 .] Wadleigh may have intended to state the facts as the court understood him xo state them and have been honestly mistaken about them.