Osgood v. Worm World, Inc.

959 S.W.2d 139, 1998 WL 28145
CourtMissouri Court of Appeals
DecidedJanuary 28, 1998
DocketNos. 21193, 21219
StatusPublished
Cited by3 cases

This text of 959 S.W.2d 139 (Osgood v. Worm World, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osgood v. Worm World, Inc., 959 S.W.2d 139, 1998 WL 28145 (Mo. Ct. App. 1998).

Opinion

PREWITT, Judge.

Following non-jury trial, both parties appeal from judgment entered determining the Plaintiffs petition and Defendant’s counterclaim. The dispute centers around a contract entered into between Plaintiff and Defendant. It involved the purchase of fish baits manufactured and sold by Plaintiff to Defendant. The trial court found that Plaintiff was entitled to receive from Defendant $24,197.77 for profits lost when Defendant did not purchase baits that it was contractually obligated to purchase, and Plaintiff was also entitled to recover from Defendant $6,205.00 for spoiled raw materials as a result of the failure to purchase, for total damages of $30,402.77. On the counterclaim, the trial court found that Defendant was entitled to receive from Plaintiff $10,500.00, for advances it made to Plaintiff for which it had not received goods, and $5,000.00 for defective products Defendant received from Plaintiff.

Review is under Rule 73.01(c). For the interpretation of that rule, see In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). “Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01(c)(2). “All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(a)(3). Colbert v. Nichols, 935 S.W.2d 730, 732 (Mo.App.1996).

The transcript filed here contains 172 pages of evidence and other proceedings in the trial court. Plaintiffs brief has a three-page statement of facts making reference to only one page of the transcript. Rule 84.04 requires that a statement of facts in the brief shall have specific page references to the legal file or the transcript. A statement of facts not complying with Rule 84.04 pre[141]*141serves nothing for review by an appellate court. Pemiscot County Mem’l Hospital v. Mo. Labor & Indus. Bel. Comm’n, 825 S.W.2d 61, 63 (Mo.App.1992); see also Whalen v. College of the Ozarks, Inc., 861 S.W.2d 682, 683 (Mo.App.1993). Nevertheless, we. have gratuitously hereafter reviewed the points contained in Plaintiffs brief.

Plaintiffs Appeal

For Plaintiffs first point, he asserts that the trial court erred in computing his damages based on lost sales by using a profit margin of twenty-five percent “because the uncontradicted evidence was that plaintiffs profit margin on baits produced was 41%.”

The trial court found that Plaintiffs testimony regarding his profit margin of forty-one percent was “somewhat speculative.” Plaintiff argues that there was no evidence that the margin was anything other than forty-one percent. Although this testimony may not have been countered, it was not admitted. The trial judge, as the trier of fact, can disbelieve testimony, even when un-contradicted. Stolba v. Vesci 909 S.W.2d 706, 709 n. 3 (Mo.App.1995). He did so here. Deferring to the trial court on credibility, this point has no merit. Point I is denied.

For his second point, Plaintiff asserts that there was no substantial evidence to support granting Defendant $5,000.00 on its counterclaim for defective products, and that this determination was against the weight of the evidence. In argument following the point, Defendant acknowledges that there was evidence from John Hendricks, president of Worm World, Inc., that Worm World, Inc. had received approximately $50,000.00 worth of defective products. Plaintiff then contends that the “only credible testimony” was from a principal, Don Angel, in a company which later bought Defendant’s assets. Plaintiff contends that Mr. Angel was the only witness who did not have a direct financial interest in the outcome. He testified to a minimal amount of product which was growing moldy.

As earlier said, this Court gives due deference to the trial court’s ability to judge the credibility of witnesses, and having done so, we conclude there was substantial evidence to support the $5,000.00 award. We set aside a judgment on the ground that it is against the weight of the evidence only when this Court has a firm belief that the judgment is wrong. Goodnight v. Curry, 618 S.W.2d 278, 279 (Mo.App.1981). “Weight of the evidence” means its weight in probative value, not the quantity or amount of evidence. Id. The weight of the evidence is not determined by mathematics, but upon its effect in inducing belief. Id So viewed, we do not have a firm belief that this award was erroneous. Point II is denied.

For his third point, Plaintiff again contends that the trial court erred in regard to the $5,000.00 award for defective goods, “because the defendant failed to give notice as required of defective performance under the Uniform Commercial Code.” Section 400.2-607(3)(a), RSMo 1994, requires that “the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.”

There was evidence that defects in the product were discussed between Plaintiff and a representative of Defendant, apparently by telephone, and that Plaintiff went to Defendant’s facilities and inspected the product, and they further discussed the claimed deficiencies. The notice mandated by the Uniform Commercial Code “does not require any particular formality or detail as to the nature of the buyer’s complaint.” Kansas City v. Keene Corp., 855 S.W.2d 360, 369 (Mo.banc 1993). The purpose of notice is “to provide the seller with an opportunity to correct any defects, prepare for litigation, and prevent stale claims.” Id. Therefore, in this case, notice was sufficient. Point III is denied.

For his fourth point, Plaintiff contends that the $5,000.00 award granted on the counterclaim for defective goods was erroneous “because Defendant failed to prove the measure of damages for defective performance under the Uniform Commercial Code.” Here, the trial court could find that the defective goods were worthless, damaging Defendant in the amount paid. The evi[142]*142dence was sufficient to support the award as to damages. Point IV is denied.

For his remaining point, Plaintiff contends that the trial court erred in granting Defendant judgment on its counterclaim for $10,-500.00, for advances, because there was no substantial evidence to support it. In the argument following that point, Plaintiff acknowledges that John Hendricks testified that $10,000.00 was owed for advances. Defendant acknowledges that this award should be limited to $10,000.00, and this Court will order the judgment amended to reflect that change.

Defendant’s Appeal

In its appeal, Defendant presents two points relied. For its first point, Defendant asserts that the trial court erred “in ruling that the defendant was required to purchase 100,000 units of ‘classic frogs and salty frogs’, 40,000 units of ‘hairy pork craws’ and 10,000 units of other pork rind baits and rewrote the contract in violation of rules of contract construction and interpretation.”

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Bluebook (online)
959 S.W.2d 139, 1998 WL 28145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osgood-v-worm-world-inc-moctapp-1998.