Grapette Co. v. Grapette Bottling Co.

• Decision Date: 11 January 1956
• Docket Number: No. 7383,7383
• Citation: 286 S.W.2d 34
• Parties: The GRAPETTE COMPANY, a corporation, Plaintiff-Respondent, v. GRAPETTE BOTTLING COMPANY, a corporation, J. M. Johnston and Nelle J. Johnston, Defendants-Appellants.
• Court: Missouri Court of Appeals

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.

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 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 review, which must be upon both the law and the evidence as in actions of an equitable nature. Fort Osage Drainage District of Jackson County v. Jackson County, Mo., 275 S.W.2d 326, 328(2); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290(1); Pudiwitr v. Soloman, Mo.App., 224 S.W.2d 562, 567(2, 3).

Furthermore, defendants are in no position to urge on appeal that such 'finding' was erroneous as 'clearly in conflict with certain judicial admissions of the plaintiff,' for no such allegation of error was presented to or expressly decided by the trial court. Section 512.160(1), RSMo 1949, V.A.M.S.; Supreme Court Rule 3.23. In their motion for new trial, defendants elected to aver with particularity that 'the judgment should be amended to allow defendants credit for * * * $2,503.32 * * * for the reason that the plaintiffs (sic) did and have served notice of cancellation of their franchise with defendants so that the legal relationship and cause for the existence of said (advertising) account has ceased to exist'--a 'reason' utterly devoid of support in the record. The fundamental and time-honored principle of appellate procedure that a trial court must be afforded an opportunity to review and correct its own errors before the aid of an appellate court may be invoked [State ex rel. Morton v. Cave, 359 Mo. 72, 220 S.W.2d 45, 49(4); Banner Iron Works v. Ray R. Rosemond Co., Mo., 107 S.W.2d 1068, 1070(4); Olson v. Olson, Mo.App., 184 S.W.2d 768, 772(3); Fruit Supply Co. v. Chicago, B. & Q. R. Co., Mo.App., 119 S.W.2d 1010, 1011(4); Tucker v. Burford, Mo.App., 95 S.W.2d 866, 867(5)] forbids our consideration of the alleged error in the 'finding * * * that a contractual relationship still existed between the parties,' here urged for a reason radically different from, and wholly unrelated to, that specifically averred in the motion for new trial. Noble v. Missouri Ins. Co., Mo.App., 204 S.W.2d 446, 450(12); Anth v. Lehman, Mo.App., 144 S.W.2d 190, 192(2). Consult also Nickels v. Witschner, Mo., 270 S.W.2d 848, 849(2); Block v. Rackers, Mo., 256 S.W.2d 760, 763(3); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 594-595(24, 25); Sterrett v. Metropolitan St. Ry. Co., 225 Mo. 99, 123 S.W. 877, 879(1); Polster v. O'Hanlon, Mo.App., 267 S.W.2d 381, 385(4); Mitchell v. Russell, Mo.App., 170 S.W.2d 137, 138(2).

Nevertheless considering defendants' contentions to determine whether 'manifest injustice or miscarriage of justice has resulted' from '(p)lain errors affecting substantial rights' [Supreme Court Rule 3.27], we note that the 'judicial admissions of the plaintiff,' with which the court's 'finding * * * that a contractual relationship still existed between the parties' is said to be 'clearly in conflict,' were in the second count of plaintiff's amended petition, in which appointment of a receiver for defendant company originally was sought. However, the transcript on appeal contains a stipulation that this second count was dismissed by plaintiff and that trial was had on the first count, an action in conventional form to recover on a promissory note. Upon its dismissal, the second count became an abandoned pleading and dropped out of the case; and, not having been offered in evidence, the abandoned second count is not now appropriately before this court and may not be considered by us. Cf. Weir v. Brune, Mo., 256 S.W.2d 810, 811(2); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(3); Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826(4); State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 189 S.W.2d 425, 428(3).

As mystifying and meaningless to us as to defendants is the linguistic mumbo jumbo of their lay witnesses, plaintiff's district manager and advertising director, who, steadfastly asserting plaintiff's complete and continuing control over the advertising account, nevertheless said that plaintiff did not claim the advertising account as its money but that such account, 'set up like a trust fund,' 'belongs to the territory.' However, we are not here concerned with interpretation or reconciliation of the puzzling and paradoxical answers of plaintiff's employees (called as defendants' witnesses); and, the legal frailty of defendants' position is indicated by the fact that neither their brief nor the oral...