Central Missouri Foods, Inc. v. General Grocer Co.

• Decision Date: 08 June 1976
• Docket Number: No. 36416,36416
• Citation: 538 S.W.2d 63
• Parties: GENTRAL MISSOURI FOODS, INC., Plaintiff-Appellant, v. GENERAL GROCER COMPANY, Defendant-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 63

538 S.W.2d 63

GENTRAL MISSOURI FOODS, INC., Plaintiff-Appellant, v. GENERAL GROCER COMPANY, Defendant-Respondent.

No. 36416.

Missouri Court of Appeals, St. Louis District, Division Two.

June 8, 1976.

Leonard R. Yocum, St. Louis, for plaintiff-appellant.

George Thomas, St. Louis, for defendant-respondent.

KELLY, Judge.

This is an appeal from the judgment rendered in behalf of the respondent, General Grocer Company, after a trial to the court without a jury. We affirm.

Appellant, the plaintiff in the trial court, brought this suit 'On Account' seeking to recover $975.39 and interest for some chickens delivered to Dixon's Discount Center of Columbia, Missouri, between April 13, 1971, and May 19, 1971, which it had billed to the respondent in accordance with an alleged agreement between it and respondent's 'district manager,' Mr. Staicoff. Respondent, in its Answer, denied the agreement and also pleaded the Statute of Frauds. § 432.010 RSMo. 1969. No request for findings of fact or conclusions of law were made by the parties, and at the conclusion of the non-jury trial the trial court entered judgment for respondent, the defendant in the trial court.

In reviewing a court-tried case it is the duty of the appellate court to review the case upon both the law and the evidence as in suits of an equitable nature. Due regard shall be given to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(a), (b). However, as this court stated in Bader Automotive & Indus. Supply Co. v. Green, 533 S.W.2d 695, 698 (1976), the deletion of the phrase "the judgment shall not be set aside unless clearly erroneous" from the former Rule, effective January 1, 1975, did not convert appellate courts into 'judicial second guessers,' and where the decision depends upon the credibility of the witnesses and the weight of the evidence, an appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been decided otherwise.

Appellant corporation is a processor and wholesaler of chickens. Respondent corporation operates a distribution and retail consultation service with about 105 independent retail stores, including Dixon's, as clients. As a part of this consultation service respondent authorizes the billing of purchases made through its merchandising department by its clients from vendors, pays the bills, and charges its clients a fee for these services. On occasion, if the client's credit is good, the client may order directly from the vendor without going through respondent's merchandising department and if the bill is sent to the respondent it will pay the bill for the client and then charge the client for the amount of the bill plus the service charge.

Mr. Fred Beaman, sales manager for appellant, testified that on March 26, 1971, Dixon's Discount Center ordered, for the first time, some chickens by telephone. Because this was a new account, Mr. Beaman delivered the chickens personally and before unloading them he spoke to Mr. Susich, an employee of Dixon's Discount Center, and told him that he was from appellant, that he had the chickens, and asked how they wanted to pay for them. At that time Mr. Susich was sitting in the back of the Dixon's Discount Center with another man who was introduced to him as Mr. Staicoff. Mr. Staicoff, he testified, gave him his business card. This business card had Mr. Staicoff's name on it, 'General Grocers' and stated that he was a supervisor 'of some kind.' After Mr. Staicoff identified himself and stated he was with General Grocers, he gave Mr. Beaman the address of General Grocers and told Mr. Beaman to bill the chickens through General Grocers in St. Louis. Mr. Staicoff did not tell him that he would have to obtain approval from General Grocers for any subsequent deliveries to Dixon's Discount Center. Prior to this occasion Mr. Beaman had never done business with respondent. Nevertheless, he was familiar with this type of business dealings because this same billing arrangement was utilized by other food distributors.

Further orders of chickens were placed by Dixon's Discount Center on April 1st and 3rd and appellant billed these to respondent for the three shipments on April 6, 1971. Respondent paid for these deliveries on April 9, 1971, by check. Further deliveries on April 5, 7 and 9, totalling $330.37 were also billed to respondent on April 14, 1971, and paid on April 16, 1971, by respondent. Nine other deliveries were made to Dixon's Discount Center by appellant between April 13 and May 3, 1971, and totalled $975.39. These, like the prior orders, were billed to respondent, but this billing was never paid and is the subject of this litigation. Mr. Beaman testified that he had no further correspondence with respondent after it paid for the deliveries other than receipt of payment for them. He denied that he had received any indication that Dixon's Discount Center would pay for the deliveries of the chickens despite the fact that the invoices sent to respondent were made out to Dixon's Discount Center.

Respondent's evidence was in conflict with that of appellant. Mr. Staicoff denied that Mr. Beaman inquired concerning the billing for the chickens at the meeting of March 26, 1971, although he admitted that he, during some discussion concerning the services afforded by respondent, did suggest that Mr. Beaman get in touch with Mr. Dietrich of respondent's meat department, because Mr. Dietrich was the merchandiser for that department. He made this suggestion because Mr. Susich explained to him what appellant's program was and 'the head meatcutter' explained that they had a fine program, because you could buy pieces of chicken, or chicken halves, or whole fryers. He thought the program sounded like a good one and thought that perhaps there were other stores in the area which could utilize this program of appellant. He testified that he did not tell Mr. Beaman to bill the chickens to respondent. He further testified that he had no authority to contract for his employer; his duties were to assist the member stores in merchandising, advertising, controls, office and register procedures.

Mrs. Gladys Humphrey, a billing-clerk typist employed by the respondent at the time of these transactions, described the manner in which respondent's meat merchandising department functioned as set out hereinabove. On April 8, 1971, after respondent had paid three billings for Dixon's Discount Center which had been submitted by appellant, she, at the direction of Mr. George Dietrich, respondent's meat merchandiser, prepared a master copy of a form letter which was then xeroxed and mailed to all of the vendors with which respondent did business. One of the vendors to whom this letter was mailed on April 8, 1971, was appellant. (Mr. Beaman testified that he did not receive this letter prior to May 19, 1971). The original or master copy of this letter was retained for a time and then discarded. Dixon's Discount Center's name was not specifically mentioned in the letter, because it was their practice not to name the client whose credit was not in good standing in this form letter. This letter is as follows:

'Gentleman:

We would like to restate our meat merchandising program in regard to collections pertaining to meats sold to General Grocer Company Cooperative Group members.

General Grocer Company assumes payment for all orders that originate from the headquarters meat department. Only by this method can we control our accounts and purchases.

If there are any questions regarding our program, please contact the writer. This is brought to your attention so that our credit losses can be held to a minimum.

/s/ George Dietrich'

Mrs. Humphrey testified that the reason the first three bills submitted to respondent were paid was that up until that time appellant's credit with respondent was in good standing.

On re-direct examination, Mrs. Humphrey testified that in addition to this letter of April 8, 1971, there was another notice sent to the vendors with the particular store's name and customer number on it notifying the vendors that the store named in the notice was no longer being serviced by respondent. However, she admitted that she had no personal knowledge of any such letter in this case and she had nothing to do with sending that letter. Although a copy of that letter was also kept in the company's files, she did not know where it was. Around the 1st of April, 1971, she recalled that a letter from Mr. Dietrich came around to the effect that Dixon's Discount Center was a bad credit risk.

George Dietrich also testified as a witness on behalf of the respondent. He had been employed by respondent for 19 to 20 years and at the time of his testimony was vice-president in charge of meat merchandising and produce for respondent. He too explained respondent's operation and stated that the only bills respondent guarantees are those where the orders come through the respondent's offices, but admitted that so long as the retailer was in good credit standing with the respondent it would pay also for bills submitted where the retailer or client dealt directly with the vendor. He denied that anyone had ever called him with respect to the conversation between Mr. Beaman and Mr. Staicoff of March 26, 1971, and that the payments made on the billings submitted to respondent by appellant were in any way connected with any conversation of that date. He explained payment of the first bills submitted by appellant on the ground that they were paid as a...