Grapette Co. v. Grapette Bottling Co., No. 7383

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTONE; McDOWELL, P. J., and RUARK
Citation286 S.W.2d 34
PartiesThe GRAPETTE COMPANY, a corporation, Plaintiff-Respondent, v. GRAPETTE BOTTLING COMPANY, a corporation, J. M. Johnston and Nelle J. Johnston, Defendants-Appellants.
Decision Date11 January 1956
Docket NumberNo. 7383

Page 34

286 S.W.2d 34
The GRAPETTE COMPANY, a corporation, Plaintiff-Respondent,
v.
GRAPETTE BOTTLING COMPANY, a corporation, J. M. Johnston and
Nelle J. Johnston, Defendants-Appellants.
No. 7383.
Springfield Court of Appeals, Missouri.
Jan. 11, 1956.

Page 35

Neale, Newman, Bradshaw, Freeman & Neale, F. B. Freeman, Donald J. Hoy, Springfield, for defendants-appellants.

Warren M. Turner, Louren G. Davidson, Howard C. Potter, Springfield, for plaintiff-respondent.

STONE, Judge.

In this jury-waived action at law, defendants appeal from a judgment of $5,753.58 entered on a note dated December 9, 1950. Admitting execution and delivery of the note, defendants complain because the trial court refused to credit on the note $2,503.32 held by plaintiff in a so-called 'point of purchase advertising account' (hereinafter sometimes referred to as the advertising account).

By a written 'Bottlers License Agreement' dated July 1, 1947 (hereinafter referred to as the license agreement), plaintiff herein, The Grapette Company, an Arkansas corporation with its principal place of business in Camden, Arkansas, licensed one of the defendants herein, Grapette Bottling Company, a Missouri corporation with its principal place of business in Springfield (hereinafter sometimes referred to as the defendant company), to bottle and distribute within a described territory a beverage under plaintiff's trade name of 'Grapette.' In the license agreement, plaintiff agreed, among other things, 'to furnish units of Grapette at a price of $273 f. o. b. shipping point * * * said unit to consist of 60 gallons Grapette syrup (and) 200 gross Grapette crowns' and also 'to furnish advertising in adequate amounts to thoroughly service the territory, as determined by Licensor (plaintiff),' while defendant company agreed, among other things, to 'manufacture' Grapette by mixing 'Grapette syrup with dextrose, pure cane or bottler's beet sugar and water' in accordance with a stated formula.

The uncontradicted testimony of plaintiff's district manager and advertising director (called as defendants' witnesses) was that, whenever defendant company bought a 'unit of Grapette,' it was charged 'with the whole price' of $273, and that, of the $273 paid by defendant company for each such 'unit,' plaintiff voluntarily set aside a portion (the exact amount thus set aside

Page 36

having been changed by plaintiff from time to time) in a so-called 'point of purchase advertising account' which was 'set up for the territory to advertise the product.' Plaintiff made payments from the advertising account for such items as calendars, book matches, motel carriers, menu boards and freight, and on certain occasions the advertising account was charged with 'a pro rata share' of other expenditures by plaintiff such as those for national advertising. On April 25, 1949, $493.96 was paid on defendant company's 'syrup account' (for 'units of Grapette') by a charge in that amount against the advertising account; but, on the same date, defendant J. M. Johnston, president of defendant company, wrote plaintiff 'that I will not in the future ask that any credit be given me on my syrup account and charged to my advertising account' and 'that the advertising department of The Grapette Company will in the future, without interference from me, handle my advertising account.' Under examination by his own counsel, defendant J. M. Johnston agreed that the note, on which plaintiff sues, reflected a 'settling up' of then existing obligations; and, the record clearly shows that, from and after December 9, 1950, the date of execution of the note, no payment on defendant company's 'syrup account' or on the note was made by charge against the advertising account. Although 'various things,' such as the cost of trade-marked bottles or cases, occasionally had been charged against similar 'point of purchase advertising accounts' set up for other territories, the witnesses produced by defendants stated emphatically that plaintiff determined and controlled not only what portion of the 'unit' sale price of $273 would be set aside in each such advertising account but also what items would be paid therefrom.

Defendants' primary contention on this appeal is that 'the trial court erred in finding as a fact that a contractual relationship (under the license agreement) still existed between the parties.' It is by no means clear that the trial court's refusal to credit the balance in the advertising account on the note was predicated solely upon any such 'finding.' For, in the same informal and voluntary remarks, the court had pointed out that the $2,503.32 'accumulated in the advertising account is ear-marked for a certain purpose, and there isn't any agreement that that fund, * * * or any part of it, is to be used in the payment of indebtedness'; and, in similar vein, the court had stated pointedly during the trial that 'the plaintiff has a contract in black and white, by which the defendants agree to pay so much money' and 'so far there isn't any showing, at all, as to any agreement binding on the plaintiff company that whatever was in that point of purchase advertising account belongs to (defendants).'

However, assuming that (as defendants say) 'the basis of the trial court's ruling * * * was the finding * * * that there was still a contractual relationship between the parties,' there was no request for a finding of facts in the instant case; and, even if the court's voluntary comments were treated as 'a brief opinion containing a statement of the grounds for its decision' [Section 510.310(2), RSMo 1949, V.A.M.S.], they would neither be binding on us nor affect the character of our appellate...

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17 practice notes
  • Kesinger v. Burtrum, No. 7458
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...170 S.W.2d 965, 971(14). 2 Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 38; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597. Consult also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Williams v. City of ......
  • Allen v. Smith, No. 8201
    • United States
    • Missouri Court of Appeals
    • February 24, 1964
    ...882 motion for new trial in this case. V.A.M.R. Rule 79.03; V.A.M.S. Sec. 512.160(1); Grapette Company v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36-37(2, 3); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5, 6); Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609(10, Another complaint ......
  • Vandivort v. Dodds Truck Line, Inc., No. 8853
    • United States
    • Missouri Court of Appeals
    • July 23, 1969
    ...Mo.App., 413 S.W.2d 588, 590(1); Allen v. Smith, Mo.App., 375 S.W.2d 874, 881--882(16); Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36--37(2, 17 In re Bierman's Estate, Mo., 396 S.W.2d 545, 547--548(6); Griggs v. Miller, Mo., 374 S.W.2d 119, 126(12); Barnard v. Murphy, Mo......
  • Gover v. Cleveland, No. 7495
    • United States
    • Court of Appeal of Missouri (US)
    • February 18, 1957
    ...49(4); Banner Iron Works v. Ray R. Rosemond Co., Mo., 107 S.W.2d 1068, 1070(4); Grapette Company v. Grapette Bottling Company, Mo.App., 286 S.W.2d 34, 37(3), and cases there cited] forbids our consideration of error here assigned by plaintiffs to the effect that the trial chancellor failed ......
  • Request a trial to view additional results
17 cases
  • Kesinger v. Burtrum, No. 7458
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...170 S.W.2d 965, 971(14). 2 Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 38; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597. Consult also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Williams v. City of ......
  • Allen v. Smith, No. 8201
    • United States
    • Missouri Court of Appeals
    • February 24, 1964
    ...882 motion for new trial in this case. V.A.M.R. Rule 79.03; V.A.M.S. Sec. 512.160(1); Grapette Company v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36-37(2, 3); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5, 6); Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609(10, Another complaint ......
  • Vandivort v. Dodds Truck Line, Inc., No. 8853
    • United States
    • Missouri Court of Appeals
    • July 23, 1969
    ...Mo.App., 413 S.W.2d 588, 590(1); Allen v. Smith, Mo.App., 375 S.W.2d 874, 881--882(16); Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36--37(2, 17 In re Bierman's Estate, Mo., 396 S.W.2d 545, 547--548(6); Griggs v. Miller, Mo., 374 S.W.2d 119, 126(12); Barnard v. Murphy, Mo......
  • Gover v. Cleveland, No. 7495
    • United States
    • Court of Appeal of Missouri (US)
    • February 18, 1957
    ...49(4); Banner Iron Works v. Ray R. Rosemond Co., Mo., 107 S.W.2d 1068, 1070(4); Grapette Company v. Grapette Bottling Company, Mo.App., 286 S.W.2d 34, 37(3), and cases there cited] forbids our consideration of error here assigned by plaintiffs to the effect that the trial chancellor failed ......
  • Request a trial to view additional results

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