Mochar Sales Co. v. Meyer
| Decision Date | 09 December 1963 |
| Docket Number | No. 2,No. 49618,49618,2 |
| Citation | 373 S.W.2d 911 |
| Parties | MOCHAR SALES COMPANY, by D. R. Murphy, Douglas W. Knox, J. K. Haroway, P. B. Sterling, E. K. Ogier, Cecil S. Knox, and Maurice P. Dore, as its statutory Trustees under Nevada law, Plaintiff-Appellant, v. Robert M. MEYER, Jr., d/b/a Pleitner Charcoal and Brokerage Company, Defendant-Respondent |
| Court | Missouri Supreme Court |
Pollock, Ward, Klobasa & Shaw, T. Hartley Pollock, John A. Shaw, William E. Buckley, St. Louis, for appellant.
Schurr & Inman, Clayton, for respondent.
The plaintiff obtained a verdict and judgment for $28,875 including interest in its suit on an account for charcoal sold and delivered at the special instance and request of the defendant. The trial court sustained the defendant's motion for a new trial on six grounds. Three relate to the conduct of the trial and three to the giving of instructions to the jury. The plaintiff has appealed from the order and judgment granting the defendant a new trial.
Plaintiff's amended petition on which the case was tried alleged in substance that Mochar Sales Company, a Nevada corporation, was licensed in the State of Missouri and engaged in the business of selling charcoal with its principal office in Jefferson City; that subsequent to December 31, 1959, Mochar Sales Company withdrew from the State of Missouri, and on October 12, 1960, was voluntarily dissolved as a corporation; that under the laws of Nevada the seven persons named in the petition as trustees, being the last board of directors of Mochar Sales Company, were duly authorized to prosecute the suit in the name of the former corporation; that the defendant, doing business as Pleitner Charcoal and Brokerage Company, was engaged in the business of buying, selling, brokering and distributing charcoal and related products; that during the period from March 1, 1959, to July 18, 1959, Mochar sold and delivered to the defendant Minit-Glo brand briquets and Ozark brand briquets of the reasonable value of $28,203.58 in accordance with the statement attached as an exhibit to the petition; and that the balance due on the accourt was $28,035.59 for which judgment was prayed with interest.
In his amended answer, the defendant admitted that he purchased Ozark brand briquets as alleged in plaintiff's amended petition and that they were a standard form of briquets used for barbequing; however, the defendant denied that 'he purchased the quantities of Minit-Glo Briquets, as per invoice number and date of shipment and for the amounts set opposite thereof in 'Exhibit A' attached to plaintiff's petition'. The amended answer further alleged that prior to May 23, 1959, Mochar Company decided to promote the sale in the St. Louis area of a new type of briquet called Minit-Glo which was represented to have certain advantages and qualities not present in the standard form of briquet; that in order to promote Minit- Glo in the St. Louis area Mochar Company agreed with the defendant that 'if this defendant would handle and distribute said Minit-Glo Briquets in the St. Louis area on a guaranteed sales basis, that is, a basis whereby this defendant would only be liable for the payment of such Minit-Glo Briquets that were actually sold to the public or not returned by the retail outlets to this defendant,' the plaintiff would do certain advertising and otherwise cooperate with the defendant in the promotion and sale of Minit-Glo briquets; that Mochar breached its agreement with the result that the defendant was able to sell only approximately $2,000 worth of Minit-Glo and he was damaged in the sum of $10,861.95 which he prayed as a setoff against the plaintiff's claim; the defendant waived any damage he might have suffered in excess of the plaintiff's claim.
Since there is no issue presented as to the sufficiency of the evidence, it will be sufficient for present purposes to state that there was evidence tending to support the claims of the parties as shown by their respective pleadings. The defendant admitted that he owed $7,440 for Ozark brand briquets purchased from Mochar and about $2,000 for Minit-Glo briquets which he had been able to sell, but claimed as an offset $10,861.95 alleged to be the amount due him by virtue of Mochar's breach of contract relating to the distribution and sale of Minit-Glo briquets. The plaintiff struck several items from its claim and reduced the prayer of its petition to $27,853.58.
The defendant did not file a brief in this court from which it follows that he did not argue the appeal orally. A respondent is not required to brief his case on appeal and may rely upon the presumption of a right judgment in the trial court. Lakin v. Postal Life and Casualty Ins. Co., Mo., 316 S.W.2d 542, 549; Marks v. Acme Phonograph Co., Mo.App., 253 S.W. 174, 175. Nevertheless, it has been the policy of this court to encourage briefs and oral argument by both parties. When a party fails to do so, he misses an opportunity to aid the court in arriving at a proper decision. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 319[1, 2]. See also Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286, 288.
Plaintiff's verdict-directing instruction No. 1 follows in general the language and theory of plaintiff's petition. Instruction 2 given at the defendant's request told the jury that the defendant admitted an indebtedness of $9,440 for Ozark and Minit-Glo briquets which the defendant had not paid because he claimed that the plaintiff was indebted to him in excess of that amount 'by virtue of breach of contract relating to the distribution and sale of Minit-Glo briquets', and if the jury found that the defendant agreed to handle Minit-Glo on a guaranteed sales basis it should not find against the defendant for the Minit-Glo briquets remaining unsold and, if they further found that the plaintiff had breached the obligations it had undertaken with respect to furnishing and marketing Minit-Glo and the defendant was damaged, it should setoff the amount of such damage against the amount due the plaintiff for Ozark and Minit-Glo brand briquets sold.
Two grounds of error specified by the trial court in granting the new trial relate to instructions 3 and 4 given on behalf of the plaintiff. Both are burden of proof instructions. They are as follows:
3.
4.
The defendant alleges in his motion for new trial that instructions 3 and 4 erroneously reliever the plaintiff of its burden of proving its contention that the transaction was an outright sale by imposing on the defendant the burden of proving his defense of a guaranteed sales agreement; that instructions 3 and 4 constitute two burden of proof instructions on the same issue and are therefore repetitious and constitute a lecture to the jury. No instruction was given with respect to plaintiff's burden of proof.
The plaintiff properly contends that the defendant has the burden of proving all affirmative defenses raised by him including setoffs, citing several Missouri decisions and Sec. 509.090 RSMo 1959, V.A.M.S., which is the same as our Civil Rule 55.10, V.A.M.R. The plaintiff further correctly states that, if the jury had believed that the transaction was a guaranteed sales agreement, Mochar would not have been entitled to recover the value of the Minit-Glo which remained unsold in defendant's possession; that, if the defendant had further sustained his claim to a setoff, the amount of his damages would have been in reduction of the $9,440 which the defendant admitted he...
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...and National Cash Register Co. v. Kay, supra, 119 S.W.2d at 439, where motions for mistrial were made and denied.23 Mochar Sales Co. v. Meyer, Mo., 373 S.W.2d 911, 916(10); Stone v. Engler, Mo., 349 S.W.2d 38, 41(2); Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 106(1); Trum......
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...598 S.W.2d 503, 510 (Mo.App.1980). Further, a short, simple instruction on the burden of proof is preferred. See Mochar Sales Co. v. Meyer, 373 S.W.2d 911, 915 (Mo. 1964). "Clear and convincing evidence" requires no further defining. The words are commonly used and readily understandable, a......
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