Del Monte Corp. v. Stark & Son Wholesale, Inc.

• Decision Date: 14 December 1971
• Docket Number: No. 9105,9105
• Citation: 474 S.W.2d 854
• Parties: DEL MONTE CORPORATION, Plaintiff-Appellant, v. STARK & SON WHOLESALE, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 854

474 S.W.2d 854

DEL MONTE CORPORATION, Plaintiff-Appellant, v. STARK & SON WHOLESALE, INC., Defendant-Respondent.

No. 9105.

Springfield Court of Appeals, Missouri.

Dec. 14, 1971.

Douglas, Douglas & Douglas, Neosho, for plaintiff-appellant.

Walter Walker, Neosho, for defendant-respondent.

STONE, Judge.

In this jury-waived, court-tried action at law on an open account of $13,533.63, plaintiff Del Monte Corporation appeals from an adverse judgment.

On August 20, 1969, Del Monte instituted suit against defendants S & S Institutional Distributors, Inc. (Distributors) and Stark & Son Wholesale, Inc. (Wholesale), both of whom were Missouri Corporations, by the filing of plaintiff's petition which averred 'that the defendants are indebted to said plaintiff in the sum of $13,533.63 for merchandise purchased' as per itemized statement of account attached, and 'that demand has been made upon the defendants for payment but payment has been refused.' (All emphasis herein is ours.) Defendant Wholesale filed timely motions for security for costs, to dismiss plaintiff's petition, and to make it more definite and certain. Defendant Distributors interposed a motion 'for dismissal or stay of proceedings' averring, inter alia, that on August 18, 1969, it had filed in the United States District Court for the Western District of Missouri a voluntary petition in bankruptcy, together with schedules of assets and liabilities in which the debt owing to plaintiff Del Monte had been listed, that Distributors had been adjudicated a bankrupt and a receiver had been appointed and had taken charge of its assets, and that plaintiff was proceeding against Distributions in the state court without leave of the United States District Court and without making the receiver in bankruptcy a party to the suit. On October 20, 1969, the circuit court entered an order in the case at bar staying 'all proceedings' as to Distributors 'until disposition in bankruptcy.'

However, in its 'First Amended Petition on Account' thereafter filed on November 24, 1969, upon which the case was tried, plaintiff again charged that 'defendants are justly indebted to it for goods, wares and merchandise sold and delivered for and on behalf of the defendants in the sum of $13,533.63,' which 'said amount became due on May 14, 1969 at which time demand for payment was made.' Defendant Wholesale answered with a general denial and an affirmative plea that its 'supposed promise or obligation . . . to answer for the debt of another person, to-wit, (Distributors) . . . was not in writing nor was any memorandum or note of said alleged contract or promise made in writing signed by (Wholesale), or by any person by it thereto authorized.' Sec. 432.010. ¹ Defendant Distributions filed nothing.

At the close of the trial on January 8, 1971, plaintiff dismissed as to Distributions and the court took the cause under advisement. On January 15, 1971, judgment was entered finding the issues against plaintiff and discharging the remaining defendant, Wholesale. On this appeal, the only point presented in plaintiff's-appellant's brief is the broad contention that 'the evidence was not sufficient to sustain the judgment of the (trial) court.' This we are authorized to consider and rule, notwithstanding the fact that no motion for new trial was filed in the circuit court. Rules 73.01(d) and 79.03; Glassburner v. Burtrum, Mo., 418 S.W.2d 119, 121(4).

The itemized statement of account attached to and made a part of plaintiff's original petition, and subsequently by reference made a part of the first amended petition, was addressed to 'S & S Sales' as the purchaser-debtor, listed debits aggregating $31,358.46 and credits aggregating $17,824.83 during the period from November 21, 1968, to May 26, 1969, and showed an unpaid balance of $13,533.63. In the course of trial, it developed that the debits were for canned goods invoiced and shipped to 'S & S Sales, Springfield, Mo.65804'; that the purchase orders, in response to which these canned goods were so shipped, directed Del Monte to 'Bill to: S & S Food Service Acct., P.O. Box 547, Neosho, Missouri 64850'; and that most of such goods were sold and delivered by the Springfield consignee to a large institution in that city.

Plaintiff's witness Gene Wolfe of Springfield, an employee of Schwindler Brokerage Company, to whom plaintiff paid a commission 'on shipments that (were) invoiced,' stated that he 'personally set this account up.' According to Wolfe, he dealt with Paul E. Stark, 'the son,' whom he first met in March 1968. 'I (Wolfe) contacted Mr. Stark and he said it would be paid by Stark and Son, Neosho, Missouri; set it up as S & S Sales, which was a division of Stark and Son, Neosho.' With Wolfe denying that in 1968 and 1969 he had any knowledge of S & S Institutional Distributors, Inc., plaintiff's counsel immediately translated 'Stark and Son, Neosho, Missouri' into Stark & Son Wholesale, Inc. Regarding the above-noted purchase orders, Wolfe said the 'we take these orders to our office and type or handwrite them on one of our (Schwindler's) forms and forward the order on to Del Monte,' but there was no evidence as to whether or not the direction on the original purchase orders to 'Bill to: S & S Food Service Acct., P.O. Box 547, Neosho, Missouri 64850,' was heeded or honored.

The testimony of plaintiff's home office assistant credit manager, Ralph Weinrichter of Menlo Park, California, was directed primarily to affirmation of the reasonableness of the charges for the canned goods invoiced and shipped to 'S & S Sales, Springfield, Mo 65804; and to the identification of some of plaintiff's exhibits, namely, (a) the three invoices in suit so addressed and dated December 10, 1968, and January 14 and March 3, 1969, (b) a trial balance from plaintiff's computer showing the balance owed by 'S & S Sales' on June 3, 1970, to have been $13,274.48, (c) from Dun & Bradstreet reports, (d) memoranda pertaining to a 'discount charge-back' of $19.78 on an earlier invoice dated May 8, 1968, together with two envelopes of 'Stark & Son, Wholesale Co.' postmarked in Neosho, Missouri, and (e) a memorandum from Paul E. Stark on a 'Stark & Son, Wholesale Co.' printed form pertaining to a Del Monte 'credit memo for $164.65 to cover short merchandise' on another earlier invoice dated August 7, 1968 (not in the record before us). All of the these exhibits, excepting only the Dun & Bradstreet reports (of which more betimes), were received in evidence. Witness Weinrichter conceded that plaintiff had no writing by which Wholesale had promised to answer for the debt 'of S & S Sales or any other corporation,' and that plaintiff had acted 'on the basis of information received from Schwindler Brokerage . . . as to who we were to bill' and had never contacted Wholesale 'to determine whether or not they were to pay a bill.' However, Weinrichter was permitted (mayhap erroneously), over defendant's timely objection, to give his affirmative conclusionary hearsay response, to wit, the single word 'yes,' to the leading question of plaintiff's counsel, 'Did you knew that S & S Sales was a branch of Stark and Son Wholesale Company?' Cf. Scherffius v. Orr, Mo.App., 442 S.W.2d 120, 126--127(9); Shaw v. Terminal R. Ass'n of St. Louis, Mo., 344 S.W.2d 32, 34--35(1).

We have noted plaintiff's naked assertion, without citation of authority, in the 'Argument' portion of its brief that the Dun & Bradstreet reports were admissible in evidence. Rule 83.05(a) clearly requires that '(t)he brief for appellant shall contain: * * * (3) The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder . . ..' Appellate review is limited to those issues presented and preserved in 'Points Relied On' in appellant's brief (St. Louis-San Francisco Ry. Co. v. Morrison, Mo.App., 439 S.W.2d 27, 29(5); Maxey v. General Electric Co., Mo.App., 382 S.W.2d 67, 69(1)), in this instance to the sole question whether the evidence was sufficient to sustain the judgment of the trial court. Holman v. Fincher, Mo.App., 403 S.W.2d 245, 249. Matters to which counsel casually allude in the 'Argument' portion of their brief, such as the admissibility of the Dun & Bradstreet reports in the case at bar, but which are not stated under 'Points Relied On,' are not for appellate consideration. Montgomery v. Travelers Protective Ass'n of America, Mo.App., 434 S.W.2d 17, 20(6). See Pruellage v. De Seaton Corp., Mo., 380 S.W.2d 403, 405(3, 4); St. Louis Teachers Ass'n v. Board of Education of City of St. Louis, Mo., 456 S.W.2d 16, 18--19.

However, if plaintiff's complaint about exclusion of the Dun & Bradstreet reports were for consideration on its merits, we would be obliged to approve the trial court's ruling. After witness Weinrichter had responded affirmatively to counsel's questions as to whether 'these reports (are) a part of the business records and a part of the business practices of the Del Monte Corporation' and are 'under your control . . . and supervision,' defendant's objection to the offer of the reports was sustained. In the ensuing colloquy between plaintiff's counsel and the court, counsel said 'we offer it (sic) under the exception to the hearsay rule under business records.' This was an offer under The Uniform Business Records as Evidence Law. Sections 490.660 to 490.690, incl. However, no witness testified concerning the mode of preparation of the Dun & Bradstreet reports and as to whether they were made in the regular course of business, at or near the time of the conditions which they purported to reflect. Section 490.680. Hence, they were not admissible under the above-cited Law. Whitehead v. Martin, Mo.App., 446 S.W.2d 505, 507(2); Ellis v. State Dept. of Public Health and Welfare, Mo.App., 277 S.W.2d 331, 336(10), affirmed 365 Mo. 614, 285 S.W.2d 634. See...