(dissenting).
The majority opinion refuses to give effect to the jury verdict on the ground that the verdict is uncertain in a material respect. I cannot agree that the verdict lacks reasonable certainty. To the extent that any uncertainty does exist, I believe it to be without significance and therefore immaterial.
The uncertainty found by the majority lies in its stated inability to determine whether the actual damages were awarded for breach of contract or whether on the other hand the jury made that award for commission of a tort. The majority discerns a significance in that distinction by holding that only if the jury awarded damages for commission of a tort can the verdict for punitive damages be sustained. In this regard the majority states in its opinion at page 871, supra: “Thus, if the verdict is construed to be a finding on the contract theory that Robinson is entitled to the principal amount due on the note, together with interest and attorney fees, such verdict could not support a verdict for punitive damages.” In my view, the verdict here for actual damages should be construed as an award for breach of contract; but even so viewing the verdict, ! cannot agree with the *877majority that the award of punitive damages cannot be sustained. The end result should be that it makes no difference whether the award of actual damages be considered to have been made for breach of contract or for commission of a tort.
I.
Concerning the interpretation of the award for actual damages, the record in this case compels the conclusion in my mind that the jury made the allowance for breach of contract. The strongest factor impelling this conclusion is that the verdict on actual damages tracks precisely the third form of verdict submitted to the jury under Instruction No. 25, which specifically stated that it was to be used for the purpose of bringing in a verdict “on the note and guarantee agreement.” The verdict rendered is verbatim the same as the one set out in that third form of verdict, except that the jury filled in the blanks left for the amount of principal balance, the amount of interest, the amount of attorney’s fees and the total sum of those three items. The identity of the verdict rendered with the third form of verdict submitted is so remarkable as to remove all reasonable doubt from my mind with respect to the jury intending to follow this particular form which had been given to it for use in order to give recovery on the contract theory.
II.
The above construction of the award of actual damages as being based on breach of contract does not have the effect of barring recovery of punitive damages, as assumed by the majority opinion. To reach that conclusion the majority must ignore the established principle of Missouri law under which the jury’s finding of punitive damages necessarily implies a finding by the jury that the defendants named in the punitive damage verdict had committed a willful, wanton or malicious tort. A crucial point in this case, upon which there can be no controversy, is that the jury did award punitive damages. This award was made pursuant to Instruction No. 22 which read as follows:
“If you find the issues in favor of plaintiffs, and if you believe that the conduct of one or more of the defendants as submitted in Instructions numbered 8, 10, 12, 14, 16, 19 was willful, wanton, or malicious, you may assess punitive damages in addition to any damages assessed under Instruction No. 21. * * * ”
When the jury awarded punitive damages under that Instruction No. 22, that necessarily meant that the jury found that the defendants named in the punitive damage award had been guilty of willful, wanton or malicious tortious conduct against plaintiffs. That finding necessarily carried to plaintiffs the right to at least nominal actual damages. The lack of an award in at least a nominal amount was an error in favor of defendants of which they cannot complain on this appeal.1
These principles have been enunciated in a series of Missouri cases of which a leading one is Adams v. St. Louis & S.F.R. Co., 149 Mo.App. 278, 130 S.W. 48 (1910), in which the court held in part:
“In this case, the court, by its instructions, required the jury, in order to find for plaintiff to find ‘that defendant’s brakeman willfully, violently, and with unnecessary force choked and struck plaintiff and ejected him from the defendant’s passenger coach steps, and wounded or hurt him,’ and the jury by finding the issues for plaintiff have found these facts to be true, and by so doing found that plaintiff was entitled to have at least, nominal damages assessed as actual damages; and when these facts were found the omission by the jury to assess any sum as actual damages was error *878against plaintiff which, if he had appealed, would have resulted in a reversal of the judgment, but as to defendant it is error in its favor, and, hence, it cannot complain.”
So also in Carnes v. Thompson, 48 S.W.2d 903 (Mo.1932) the court held:
“The verdict recites that ‘the jury find the issues for plaintiff.’ Upon that finding plaintiff was entitled to have actual damages in some amount assessed. Hoagland v. Amusement Co., supra. This court there said (170 Mo. 345, 70 S.W. 878, 881, 94 Am.St.Rep. 740): ‘The jury, in finding for plaintiff, in effect found that defendants arrested the plaintiff, .and cursed and abused him, without any lawful excuse or reason therefor; and upon that finding he was entitled to have actual damages, in some amount, assessed in his favor. Under such circumstances, at the common law he is entitled to pecuniary reparation by way of damages, at least nominal, and as much more, if anything, as the jury may think him entitled to under the evidence.’ ”
Further holdings to the same effect were made in Roney v. Organ, 176 Mo.App. 234, 161 S.W. 868 (1913); Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936 (1920); Courtney v. Kneib, 131 Mo.App. 204, 110 S.W. 665 (1908). While, as pointed out by the concurring opinion, those cases each involved single count submission, the same principle should equally apply to a case involving multiple counts. The concurring opinion cites no authority for drawing a distinction, and I see no reason for doing so.
Under the cases just cited, the jury’s award of punitive damages did supply by implication a finding that the defendants named in that verdict had been guilty of tortious conduct. That therefore supplied in effect “a separate finding on each cause of action” which the majority states to be necessary in its opinion at page 873, supra. Moreover this finding by implication answers the statement of the majority in its opinion at page 873, supra, where it says: “ Even if the verdict were not ambiguous, a finding on the note issue would not necessarily constitute a finding on the conversion or transfer of the security issue.” Of course the finding on the note issue does not constitute a finding as to the tort, but the finding of punitive damages does necessarily do so.
It should be mentioned in passing at this point that there was a perfectly good reason why the jury did not bring in verdicts for actual damages in conversion under Instructions 8, 10, 12 or 14. By virtue of Instruction No. 21, a finding for plaintiffs under any of the four instructions just named called for the award of actual damages in an amount to fairly compensate them for the injury done them.2 The jury had determined to compensate plaintiffs in full for the entire principal balance due on the note and interest thereon. Additionally, as provided in the Loan Agreement, the jury had decided to award to plaintiffs further all expenses of collection including a very substantial attorney’s fee. That represented all of the actual damages that plaintiffs could possibly have had. The security withheld and converted was originally given only to secure the indebtedness, and once plaintiffs' have recovered the full amount of indebtedness, that is all to which they are entitled by way of compensation. Any recovery of actual damages beyond that would represent a double recovery for the same injury. Not only would this offend common sense, but any attempt by a jury to allow such a double recovery would not be permitted to stand. Randolph v. Simpson, 500 S.W.2d 289 (Mo.App.1973); Hamlin v. Flick, 226 P. 484 (Wash.Sup.1924).
III.
The majority makes much of the fact that the jury included Sambol as one of the defendants against whom it awarded actual *879damages. The majority opinion says that because Sambol was not a party to either the note or the indemnity agreement, that constitutes some evidence that the jury found actual damages on the theory of tort. It is upon this sole element in the case that the majority opinion erects its whole argument that the verdict is uncertain. This is expressly stated in the majority opinion at page 872, supra: “Because the jury commingled a finding on the note with a finding against one not liable thereon, the verdict is ambiguous.”
The complete answer to this argument is that, if the jury believes the verdict of actual damages to have been based on tort, then no objection can possibly be made to the award of punitive damages. Everyone, including the appellants, concede that punitive damages can be allowed for tortious conduct of the type submitted in Instructions 8,10,12 and 14. Of course, as already repeatedly stated in this dissenting opinion, to my mind it makes no difference whether or not the award of actual damages was on the theory of tort.
For reasons already stated under Point II above, whether the jury awarded actual damages on contract or for tort is essentially a non-issue so far as the propriety of the allowance of punitive damages in this case. Nevertheless to the extent that a decision between these two theories is of interest, the inclusion of Sambol in the award of actual damages does not change my view expressed in Point I that the jury intended to give contract damages.
The allowance of actual damages against Sambol was simply an error committed by the jury. If Sambol had filed an appeal in this case, that allowance of actual damages against him would have to be reversed. However, he has not appealed, and the allowance against him in no way prejudices those of the defendants who have appealed. This error therefore can and should be disregarded as harmless.
IV.
The majority opinion holds that the verdict does not dispose of all the claims submitted. So far as the tort claims against appellants are concerned, the majority restates its view that the verdict is ambiguous; and it adds that even if the verdict were not, a finding on the note issue would not constitute a finding on the tort issue. The first branch of that argument has already been answered under Point I of this dissent, and the second branch was answered under Point II.
The majority opinion further holds the verdict defective for failure to find for or against the defendants Ted Mountjoy and his company Lake Ozark Concrete, Inc. The counts against these two defendants fall within the principle, hereinabove already discussed, that the plaintiffs are not entitled to double recovery. The jury has granted plaintiffs recovery for the full balance due in the note, interest and all costs of collection. Any further damage award against Ted Mountjoy or Lake Ozark Concrete, Inc., would therefore be barred. Consequently, the inference must be drawn that the jury found against plaintiffs with respect to these two defendants.
Such a negative implication can be drawn whenever the court is “convinced that from the whole record the conclusion is irresistible that the jury did consider and determine the issue” on which an express verdict has not been returned. North County Sch. Dist. v. Fidelity & Deposit Co., 539 S.W.2d 469, 476 (Mo.App.1976). In the present case, the record as a whole does lead me to the irresistible conclusion that the jury found in favor of Ted Mountjoy and his company Lake Ozark Concrete, Inc. The evidence against them was incomparably weaker than that against the other defendants on the tort theory. When the weakness of the evidence against Ted Mountjoy and his company is coupled with the fact that any actual damage against them would be duplicitous of that actually awarded against the other defendants, I am firmly persuaded that the jury purposely decided in favor of Ted Mountjoy and Lake Ozark Concrete, Inc.
What plaintiffs sought to do by their multi-count petition was to protect them*880selves through stating various alternative theories of recovery.3 The courts have frequently held that in such instances, recovery on one theory stated in one count forecloses recovery on another theory on another count; and in such a case, a verdict against the plaintiff on a second count can be implied so as to render the judgment complete and final. Rossen v. Rice, 230 Mo.App. 109, 87 S.W.2d 213 (1935); Sims v. Spelman, 209 Mo.App. 186, 232 S.W. 1071 (1921); Legrotta v. Pittsburgh Plate Glass Co., 220 S.W. 705 (Mo.App.1920); Moore v. St. Joseph & G.I.R. Co., 268 Mo. 31, 186 S.W. 1035 (1916); Moseley v. Missouri Pac. R. Co., 132 Mo.App. 642, 112 S.W. 1010 (1908); Phillips v. Geiser Mfg. Co., 129 Mo.App. 396, 107 S.W. 471 (1908); Akers v. Ray County Savings Bank, 63 Mo.App. 316 (1895).
V.
No one will disagree with the suggestions in the majority opinion as to how the instructions in this case could have been improved. However, the test to be met is not whether a perfect trial was achieved but rather whether prejudicial error occurred. No prejudice to appellants is pointed out by the majority or concurring opinion and I see none. The evidence in this case against appellants was overwhelming. The just outcome of a seven day trial should not be aborted if avoidable. That result can be avoided by simply according the jury verdict the liberal construction to which it is entitled.
I would affirm.
. The concurring opinion states that this dissent “renders judgment for $1.00 actual damage for conversion.” Not so. Although plaintiffs were entitled to that, they make no complaint. Absent complaint by the only ones having standing to object, the failure to award nominal damages is harmless error.
. Instruction No. 21 read: “If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you believed they sustained as a direct result of the occurrence mentioned in the evidence.”
. Plaintiffs are satisfied with the jury’s award. The fact that they have not appealed fortifies the conclusion that the multiple counts were in fact intended to be alternative.