Affiliated Foods, Inc. v. Strautman
| Citation | 656 S.W.2d 753 |
| Decision Date | 31 May 1983 |
| Docket Number | No. WD,WD |
| Parties | AFFILIATED FOODS, INC., Respondent, v. Everett STRAUTMAN and Margie Strautman, Appellants. 33241. |
| Court | Court of Appeal of Missouri (US) |
Roger M. Prokes of Strong, Strong & Prokes, Maryville, for appellants.
James O. Turner, St. Joseph, for respondent.
Before SOMERVILLE, C.J., and SHANGLER, DIXON, PRITCHARD, WASSERSTROM, MANFORD and KENNEDY, JJ.
This is an original action on account. The original petition invoked a responsive answer and counterclaim, alleging breach of contract, intentional breach of contract, usury, conversion, and violation of corporation and cooperative statutes. The case was tried to a jury, which entered its verdict in favor of plaintiff's (Affiliated's) claim and against defendants (Strautmans) on all submitted counterclaims. The trial court entered judgment in accordance with the jury's verdict. The judgment is affirmed.
Appellants, (Everett and Margie Strautman, husband and wife, original defendants) hereinafter referred to as defendants actually present eight points of error. Their point (1) is subdivided into four subpoints, which charge that the trial court erred in submitting two verdict forms (designated Verdict A and Verdict B) upon plaintiff's claim for damages because (1-A) only one verdict-directing instruction was given in plaintiff's packaged instructions which called for a verdict against defendants when there existed a fact issue as to whether one or both defendants owed the plaintiff all or any of the claimed monies; (1-B) this submission violated M.A.I. 2.00 (1981 Revised) which specifies each packaged claim shall contain the verdict form, because the use of multiple verdict forms would result in confusion; (1-C) verdict form A is identical to verdict form B and by the submission of two identical instructions, the jury was unduly prejudiced by the suggestiveness and duplicity of the verdict forms; and (1-D) the plaintiff failed to amend its petition during trial or prior to submission of the case to the jury or after judgment to conform to the facts presented at trial in any way that justified the court's submitting verdict form B, which called for the possibility of judgment against other than defendants jointly. Point (2) charges that the trial court erred in submitting either verdict form A or verdict form B in that both of these, which appear to be modifications of M.A.I. 36.05, in the "note" portion, call for the completion of the remainder of the instruction "if one or more of the above findings is in favor of plaintiff". It is argued that since there is only one possible finding to make in favor of the plaintiff, this would erroneously cause the jurors to look back to an earlier instruction and upon finding one issue in favor of the plaintiffs, could cause the jury to complete the remainder of the verdict form against a defendant or defendants. Point (3) charges the trial court erred in submitting yet another instruction, which was M.A.I. 3.01 in that this instruction, as submitted, included the words "or defense" which are words only to be included if an affirmative defense has been submitted which was not done in this case. In their final point (4) defendants charge that the trial court erred in not setting aside the judgment because errors within the jury instructions were prejudicial as evidenced by the fact that the jury disregarded uncontradicted evidence submitted by defendants that should have properly decreased or avoided damages being assessed against the defendant, either individually or jointly.
Prior to trial, the parties stipulated to the following. Affiliated (hereinafter plaintiff) delivered groceries and produce items to a store in Tarkio, Missouri and to a store in Craig, Missouri; that plaintiff admitted to owing $9,830.25 on the Craig store and the sum of $6,466.77 on the Tarkio store in the form of patronage certificates. Prior to trial, plaintiff amended its petition by increasing its prayer to the sum of $51,424.33 against defendants.
Plaintiff is a wholesale grocery warehouse, incorporated under the laws of Missouri. Plaintiff services about 400 member grocers in Missouri, Kansas, Iowa, Nebraska, and Illinois. It operates as a cooperative. Member grocers who participate must own ten shares of stock at $100 per share for a total of $1,000. The stock is privately held and is accompanied by voting privileges for the members. On an annual basis, 90% of plaintiff's profits are distributed to its members. This distribution is paid as 20% cash and the remainder (80%) in the form of patronage certificates which are redeemable ten years after the issuance date. The patronage of any particular member is prorated, based upon the amount of business done by that member with plaintiff, and upon maturity, is either redeemed for cash with interest or applied against any amounts owed the plaintiff by the member. Interest is paid on the patronage certificates at a 5% annual rate and is paid to active members. When a member becomes inactive, it loses the patronage rights. On unpaid balances, plaintiff charges late charges at the rate of .25% per week. This rate has been recently increased to .35% per week.
The vice-president and treasurer for plaintiff testified that a total of $18,304.45 was owed plaintiff by the Tarkio store and a sum of $44,119.88 was owed plaintiff by the Craig store. These claimed balances included late charges. This witness further testified that statements mailed to defendants showed balances substantially higher than the amounts claimed in this action because certain credits due defendants had not been given when the statements were mailed. This witness stated that both defendants were considered member patrons and that plaintiff, at its option, could apply any portion or all of the amount of the members' patronage certificates to any indebtedness owed by that member patron. This witness also stated that plaintiff was holding monies in the form of patronage from defendants for a period up to ten years, but was demanding payment of current debts. He said that something over $200 in cash was due the owner of the Craig store and this figure was not reflected in his total figures.
The president of plaintiff testified that the stock certificates issued to defendants in joint tenancy had a face value of $2,000. He stated that efforts to clear defendants' delinquent accounts, both in person and by phone, proved unsuccessful and that plaintiff ultimately terminated delivery of groceries and produce to defendants.
Defendant Everett Strautman testified that the Tarkio store was owned by him and his wife, they had built it in 1951, and that they jointly bought groceries and produce from plaintiff. He further stated that there was an on-going dispute with plaintiff concerning ownership of the Craig store. He stated his wife owned the Craig store individually, having inherited it from her father, and that plaintiff had failed to change its documentation to reflect the individual ownership of the Craig store.
Defendant Margie Strautman testified that she continued to own the Craig store approximately seven months after plaintiff terminated delivery and suffered an approximate $9,000 loss per month before she sold it. These losses were a consequence of diminished patronage due to the inability of another wholesaler to supply the full range of produce choice previously provided by plaintiff. She also stated that plaintiff continued to charge the .25% per week late charge after deliveries ceased, and that plaintiff unilaterally stopped paying interest on a security deposit made by defendants for the years 1972-73. She further stated that between February 21, 1975 and July 2, 1979, late charge interest was imposed on the Tarkio store in the sum of $7,901.46, and the same charge was imposed on the Craig store in the sum of $7,853.44. At the close of the evidence, plaintiff submitted its claim for monies owed and defendants submitted four counterclaims.
Upon submission, the following instructions and verdict forms were given the jury:
In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden of causing you to believe a proposition of fact is upon the party whose claim or defense depends upon that proposition. In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.
In returning your verdicts you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are.
There are 5 claims submitted to you and each of them contains a separate verdict form. The verdict forms included in these instructions contains directions for completion and will allow you to return the permissible verdicts in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it.
Instructions 6 through 9 and general instructions 1 through 5 apply to the claim of plaintiff, Affiliated Foods, Inc., for its account. Use Verdict A or Verdict B to return your verdict on this claim.
MAI 2.05 (1980 New)
Your verdict must be for plaintiff if you believe:
First, at defendants' request plaintiff furnished to defendants certain grocery products and produce between March, 1973 and November, 1979, and
Second, plaintiff charged a...
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Forinash v. Daugherty
...defense. It is true that Instruction No. 4 deviated from MAI to the extent asserted. Defendants, citing us to Affiliated Foods, Inc. v. Strautman, 656 S.W.2d 753 (Mo.App.1983), wherein a similar claim of instructional error was asserted and reported, contend that we should adopt the view of......
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