Coca-Cola Bottling Co. v. Groeper

• Decision Date: 16 April 1985
• Docket Number: COCA-COLA,No. 48734,48734
• Citation: 691 S.W.2d 395
• Parties: TheBOTTLING CO., Plaintiff-Respondent, v. Burl D. GROEPER, an individual d/b/a St. Peters IGA, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 395

691 S.W.2d 395

The COCA-COLA BOTTLING CO., Plaintiff-Respondent, v. Burl D. GROEPER, an individual d/b/a St. Peters IGA Defendant-Appellant.

No. 48734.

Missouri Court of Appeals,

Eastern District,

Division One.

April 16, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 17, 1985.

Application to Transfer Denied

June 25, 1985.

William J. Raack, Clayton, for defendant-appellant.

Terry A. Gould, St. Louis, for plaintiff-respondent.

KAROHL, Judge.

In this court tried action on an open account for merchandise sold judgment was rendered for plaintiff for $6,194.74 plus interest and costs. Between January 31, 1983 and March 24, 1983 plaintiff made ten deliveries of merchandise to "St. Peters I.G.A., 401 Baltezor, St. Peters, Missouri." The balances on the invoices, less two credits, total the amount of the judgment.

The sole question for the trial court was whether plaintiff's customer was defendant as an individual or St. Peters Foods, Inc. d/b/a St. Peters I.G.A.

Plaintiff filed a petition on account and defendant filed a general denial. The trial court took judicial notice of an affidavit filed by defendant and his answers to interrogatories. Defendant showed that St. Peters Foods, Inc., a Missouri corporation, was incorporated on August 29, 1979 and went out of business on March 26, 1983. Defendant was a 25% shareholder in the corporation and its vice president. Plaintiff sold the subject merchandise to St. Peters Foods d/b/a St. Peters I.G.A. A package liquor license for the period of July 1, 1982 to June 30, 1983 was issued by the State Division of Liquor Control and St. Charles County to St. Peters Foods, Inc. at the address of the store. Federal and state tax bills were paid by the same corporation. Checks of "St. Peters Foods, d/b/a St. Peters I.G.A." issued in January, March, September and October 1982 and signed by Dennis Butler (president of the corporation) were paid to plaintiff for merchandise of plaintiff previously sold and delivered to the store. On this evidence defendant claims plaintiff sold its merchandise to the corporation and not to defendant as an individual.

Plaintiff's credit manager and route salesman testified for plaintiff. The salesman transacted business with defendant at the store. Defendant had to approve all sales or displays. The salesman also dealt with Dennis Butler and Glen Groeper but did not know Dennis Butler's capacity. He did not identify in what capacity defendant acted with reference to the corporation, as a partner or individually.

Plaintiff's credit manager had no contact with defendant with regard to the sales. Plaintiff had no credit application on file for St. Peters I.G.A. This was contrary to policy but not uncommon. The credit manager testified that every document in the file which she did not bring to court indicated a name other than defendant. Her testimony indicated that plaintiff extended credit to St. Peters I.G.A. She described defendant's relationship with St. Peters I.G.A. as, "owner and partner." She learned about defendant's relationship with the store through defendant's answers to interrogatories and in a telephone conversation with defendant where he described his status as "owner or partner". This call occurred after the sales were made, after default on the account, after the date defendant said the corporation ceased to do business, and perhaps after suit was filed. She guessed that it may have been made in the summer of 1983. Plaintiff's ten invoices and ledger statement were addressed to St. Peters I.G.A. Defendant may have signed one of the ten invoices as receipt for merchandise.

Plaintiff offered a certification of the Secretary of State that St. Peters I.G.A. was never a corporation or a registered ficticious name in the record of his office. There was no such evidence relative to St. Peters Foods, Inc. and plaintiff's evidence does not dispute defendants' proof of the existence of the corporation or that the corporation was licensed to do business at the location of the store.

Defendant's sole issue on appeal is that plaintiff failed to make a submissible case against him individually. A suit on an open account is a suit in contract. Sufficiency of proof therefore depends upon proof of an offer, an acceptance and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. J.D. Streett & Co. v. Bone, 334 S.W.2d 5, 8 (Mo.1960). As applied to this case plaintiff must offer evidence to prove: (1) defendant requested plaintiff to furnish the merchandise (offer); (2) defendant furnished the goods (acceptance); and (3) the charges were reasonable (consideration). See MAI 26.03. We find no such proof. We reverse.

The burden of proof is upon the plaintiff to make a submissible case. Bridgeforth v. Proffitt, 490 S.W.2d 416, 422 (Mo.App.1973). In order to carry the burden plaintiff must remove the issues from the "realm of rank conjecture and surmise and establish [the essential elements of its cause of action] by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence." Id. at 422. A judgment in a court tried case is to be overturned or set aside if it lacks substantial evidence to support it or is against the weight of the evidence. Rule 73.01. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Before addressing the evidence we note that a corporation may adopt or assume a ficticious name, different from its true name, and may make and enter into valid and binding contracts under such assumed or ficticious name, even though the same is not registered as required by § 417.200 RSMo 1978. State ex rel. Schoenbacher v. Kelly, 408 S.W.2d 383, 387 (Mo.App.1966).

The testimony of plaintiff's credit manager is not probative of any facts with regard to the sale of merchandise. The last sale shown on plaintiff's invoices occurred on March 24, 1983. St. Peters Foods, Inc. went out of business on March 26, 1983, and the credit manager did not become involved with the account until sometime thereafter. Even if we accept as true that defendant told plaintiff's credit manager he was a partner or owner during a telephone conversation during the summer of 1983 that does not...