Mustang Beverage Co., Inc. v. Jos. Schlitz Brewing Co.

• Citation: 511 P.2d 1,162 Mont. 243,30 St.Rep. 565
• Decision Date: 27 June 1973
• Docket Number: No. 12323,12323
• Parties: MUSTANG BEVERAGE COMPANY, INC., Plaintiff and Appellant, v. JOS. SCHLITZ BREWING COMPANY and Walt's Beverages, Inc. et al., Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 1

511 P.2d 1

162 Mont. 243

MUSTANG BEVERAGE COMPANY, INC., Plaintiff and Appellant, v. JOS. SCHLITZ BREWING COMPANY and Walt's Beverages, Inc. et al., Defendants and Respondents.

No. 12323.

Supreme Court of Montana.

Submitted April 25, 1973.

Decided May 29, 1973.

As Amended on Denial of Rehearing June 27, 1973.

Hutton, Schiltz & Sheehy, Billings, John C. Sheehy argued, Billings, for appellant.

Corette, Smith & Dean, Butte, Kendrick Smith and Gerald R. Allen argued, Butte, Moulton, Bellingham, Longo & Mather, Billings, William S. Mather, argued, Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal from an order of the district court of the thirteenth judicial district, Yellowstone County, granting summary judgment to defendants.

Plaintiff Mustang Beverage Company, Inc., hereinafter called Mustang, brought this action to recover damages from defendant Jos. Schlitz Brewing Company, hereinafter called Schlitz, resulting from the breach of, and interference with, certain alleged contractual arrangements for the distribution of brewery products manufactured by defendant Schlitz. Defendant Brad Brown was the district representative for Schlitz in the Billings area.

Plaintiff Mustang contended the remaining defendants intended to create a monopoly in the beer business in Billings. Atlas Beverages, Inc., Fred L. Briggs Distributing Company, Inc., Ace Beverage Company and Allied Distributors, Inc., were corporations holding wholesale beer licenses from the state of Montana. Peter Decker and Fred L. Briggs were two of the three officers of the Fred L. Briggs Distributing Company, Inc., and Mustang alleged these two defendants were also officers in the Atlas Beverages, Inc. Decker, Briggs and one Carl Kemble, the latter being with the Ace Beverage Company in Miles City, Montana, are alleged to have conspired to form Walt's Beverages, Inc.

Mustang was a duly licensed wholesale beer distributor in the state of Montana, through a permit and license issued by the Montana State Liquor Control Board. From 1958 until July 10, 1970, Mustang was the only wholesale beer distributor who distributed Schlitz products in Yellowstone, Big Horn, Carbon, Golden Valley, Musselshell and Stillwater Counties. The distribution area also included the town of Shawmut in Wheatland County.

On June 4, 1958, Mustang and Schlitz entered into a written agreement entitled 'Declaration of Terms' whereunder a buyer-seller relationship was established between Schlitz as brewery seller, and Mustang as wholesale buyer. The agreement carefully set out that the relationship between the parties was exclusively that of buyer and seller. The agreement could be terminated by either party at any time without cause or notice, and the buyer acknowledged that the seller had granted no franchise or exclusive territory to the buyer. Additionally, each time Mustang bought beer from Schlitz, f. o. b. Wisconsin, it ordered on a form provided by Schlitz which included the provisions from the 'Declaration of Terms' as a condition of sale.

Relations between Mustang and certain personnel of Schlitz became strained. Schlitz unilaterally canceled the relationship with Mustang in a letter to it on July 10, 1970. This suit arose out of the canceled contractual relationship.

The first and essential issue on appeal is whether or not the district court erred in granting summary judgments against Mustang Beverage Company, Inc.

This Court on a number of occasions has considered the propriety of granting or denying motions for summary judgment. Rule 56(c), M.R.Civ.P., required that summary judgment be granted if:

'* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

The burden of establishing the absence of any issue of material fact is on the party seeking summary judgment. In Roope v. Anaconda Company, 159 Mont. 28, 494 P.2d 922, 924, this Court held:

'But where, as here, the record discloses no genuine issue as to any material fact, the burden is upon the party opposing the motion to present evidence of a material and substantial nature raising a genuine issue of fact.'

Again in Calkins v. Oxbow Ranch, Inc., 159 Mont. 120, 495 P.2d 1124, 1125, the Court stated:

'In discussing a motion for summary judgment in Gallatin Tr. & Sav. Bk. v. Henke, 154 Mont. 170, 172, 461 P.2d 448, 449, this Court citing from Silloway v. Jorgenson, 146 Mont. 307, 406 P.2d 167, said:

"* * * the party opposing motion (for summary judgment) must present facts in proper form-conclusions of law will not suffice; and the opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicions.' 6 Moore's Federal Practice 2d. § 56.15 (3), pp. 2346, 2347; Hagar v. Tandy, 146 Mont. 531, 410 P.2d 447.'

See also, Hannifin v. Butte Retail Clerks Union Number 4, Mont., 511 P.2d 982.

From the record Mustang's complaint does not provide any genuine issue as to any material fact and defendants were properly granted summary judgments as a matter of law.

The second issue on appeal is whether or not the district court erred in entering summary judgments for defendants, when the depositions of eight of the nine parties involved in this action, while before the court, had not been filed, and when the district court had no independent recollection of having examined the depositions nor of having such depositions in its possession. Counsel for all parties made extensive reference to the depositions and exhibits in their briefs in the district court, and duplicate originals of the eight depositions have now been certified by the court reporter and filed with the clerk of the district court. The original depositions and exhibits could properly be considered in support of the summary judgments even if the duplicate originals had not been filed. Failure of the court reporter to file the first originals in accordance with Rule 30(f), M.R.Civ.P., was at most harmless error. No motion to suppress the use of the depositions was ever made by counsel for Mustang, even though Mustang and ample time and opportunity to discover the depositions had not been filed. Also, three of the 'missing' depositions were those of Mustang's own officers. This Court finds the 'missing' depositions in no way affect the district courts' ruling in regard to the summary judgments.

We present the following points as they were presented in district court, as this was the basis upon which the district court granted the summary judgments.

Under the first claim of the complaint there was no unlawful conspiracy by Schlitz with any other defendant. The controlling point on this claim is that he contract between Schlitz and Mustang specifically and clearly provided in Paragraph 5:

'* * * Buyer acknowledges that Seller has granted no franchise or exclusive territory to Buyer, and Seller may, at any time without incurring any liability to Buyer, sell its products to others in the same trade area as Buyer. * * *'

This fully signed contract is dated May 2, 1958, and was in full force and effect until July 10, 1970, when Schlitz notified Mustang that Schlitz would no longer sell beer to Mustang.

The order forms for beer as the beverage was ordered by Mustang from Schlitz also supports this position. Paragraph 5 of each order form stated the same above quoted language.

Mustang's claim is premised upon the existence of an exclusive right to distribute Schlitz products in this market area. However, the existence of the alleged exclusive right is completely belied by the very terms of the contract upon which the Mustang and Schlitz relationship was based. The contract and order forms uniformly state:

'Buyer acknowledges that seller has granted no franchise or exclusive territory to Buyer and Seller may, at any time without incurring any liability to Buyer, sell its products to others in the same trade area as Buyer.'

Under the facts shown in this record any argument by Mustang that some type of right of exclusive distributorship existed is further precluded by the following language in Paragraph 6 of both the Declaration of Terms and order forms:

'6. NO PROMISE OR AGREEMENT HERETOFORE OR HEREAFTER MADE, AND NO WAIVER OR MODIFICATION OF ANY PROVISION OF THIS OR ANY OTHER AGREEMENT, SHALL BIND SELLER UNLESS IN WRITING AND SIGNED BY SELLER'S PRESIDENT, VICE PRESIDENT OR SECRETARY, EXCEPTING THAT ORDERS ARE ACCEPTED BY STAMPING SELLER'S ACCEPTANCE THEREON. As an inducement for and as part consideration of Seller's accepting any order from or making any shipment to Buyer, Buyer warrants and represents that no representation or promise inconsistent with any of the provisions of this Declaration of Terms has been made to Buyer by any officer or employee of Seller, and that Buyer has no agreement or relationship directly with Schlitz. No failure of Seller to enforce any provision hereof in any instance or instances shall be deemed a waiver of such provision in other instances, nor can the terms hereof be altered by custom or usage. The rights of the parties respecting all transactions shall be governed by Wisconsin law.'

Under these facts, which cannot be disputed and are not disputed, there cannot be any possible right of recovery of any kind or character under any of the claims.

In addition, W. J. Schumacher, an officer of Mustang, testified in his deposition that he used these order forms in making all of his orders, and we quote:

'Q. Now I'm going to show you what has been marked as Defendants' Exhibit C. and C-1 from the deposition of Metz and ask you if you are acquainted with those forms.

'A. Those are order blanks.

'Q. You are acquainted with them.

'A. Yes.

'Q. And C was used as an order blank before October of 1968 and C-1 was used thereafter, is that right?

'A. I'm assuming so. We probably...