NO. 12323 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1973

MUSTANG BEVERAGE COMPANY, INC. 

## , Plaintiff and Appellant,

JOS

# . SCHILTZ BRmING COMPAIY;WALT' S BEVERAGES INC., et al. Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert L. Wilson, Judge presiding. Counsel of Record: For Appellant: Hutton, Schiltz and Sheehy, Billings, Montana. John C.Sheehy argued, Billings, Montana. For Respondents: Corette, Smith and Dean, Butte, Montana. Kendrick Smith and Gerald R. Allen argued, Butte,

Montana. Moulton, Bellingham, Longo and Mather, Billings,

Montana. William S. Mather argued, Billings, Montana.

Filed:

## mkY2 I(

## 7973 Submitted: April 25, 1973 Decided: 

# m2 9

## I973

ClerkMr. Chief JusticeJames T. Harrison delivered the Opinion of the Court.

This isan appeal from an order of the districtcourt of the thirteenthjudicial district, Yellowst.one County, granting summaryjudgment to defendants. Plaintiff Mustang Beverage Company, Inc., hereinafter called Mustang, brought this action to recover damages from defendant 30s. 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. It5 0,7/ /l'< : ,f I, Decker, Briggs and one Carl Kemble,,

### were with the Ace Beverage Company of /h' Miles City, Montana, and are alleged to have conspired toform 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 StateLiquor 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 inMheatland 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 se1ler, and Mustang as wholesale buyer. The agreement carefully set out that the relationship between theparties was exclusively thatof buyer and seller. The agreement could be terminated by either party atany 

### time without cause ornotice, and the buyer acknowledged that the sellerhad granted no franchise orexclusive territory tothe buyer. Additionally, each time Mustang bought beer from Schlitz, f.o.b. Wisconsin, it ordered on a form provided by Schlitzwhich included the provisions from the "Declaration of Terms" asa condition of sale. Relations between Mustang and certain personnel of Schlitz became strained. Schlitz unilaterally canceled the relationshipwith Mustang in

a lettertoiton July 10, 1970. This suitaroseout of the canceled contractual relationship, The firstand essential issueon appeal 

### iswhether or not thedistrictcourt erred ingranting summaryjudgments againstMustang Beverage Company, Inc

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

## " 

## * * * the pleadings, depositions, answers to 

### interrogatories, and admissions on fileshow thatthere is no genuine issueas toanymaterial factand thatthe moving party is entitled toajudgment asa matter of law. 

## ***" The burden of establishing

### the absence of any issue of material factis on the party seeking summaryjudgment. In Roope,~. Anaconda Company, 159Mont. 28, 494 P.2d 922, 924, 29 St.Rep. 170, 174, this Court held: "But where, ashere, the record discloses no genuine issueastoanymaterial fact, the burden isupon the party opposing themotion topresent evidence of a material and substantial nature raising a genuine issue of fact." Again inCalkins v. Oxbow Ranch, Inc., 159Mont. 120, 495 P.2d 1124, 1125, 29 St. Rep. 244, 246, the Court stated: "In discussing a motion for summaryjudgment in Gallatin Tr. & Sav. Bk. v. Henke, 154Mont. 170, 172, 461 P.2d 448, 449, this Court citing from Silloway

### v. Jorgenson, 146Mont. 307, 406 P,2d 167, said:

## "'

## *

## * * the party opposing motion [for summary judgment] 

### must present facts inproper 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. 

### s 56.15 [3]

### ,pp. 2346, 2547; Hagar 

### v. Tandy, 146 Mont. 531, 410 P.2d 477. 'I' See also, Hannifin v. Butte Retail Clerks Union Number 4, 

# - Mont

# .-- ,

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

### iswhether or

### not the districtcourt erred inentering summaryjudgments for defendants, when the depositions of eight of the nine parties involved inthis action, while before the court, had not been filed, and when the districtcourt had no independent recollection of having examined the depositions nor of having such depositions in itspossession. Counsel for a11parties made extensive reference tothe depositions and exhibits intheir briefs inthe districtcourt, and duplicateoriginals of the eightdepositions have 

### now been certified by the court reporter and filedwiththe clerk of the districtcourt. 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 tofile

### the firstoriginals inaccordance with Rule 30(f), M.R.Civ.P., was atmost harmless error. No motion tosuppress the use of the depositions was ever made by counsel forMustang, even though Mustang had ample time and opportunity todiscover the depositions had not been filed. Also, three of the "missingM depositions were those of Mustang's own officers. This Court finds the "missing" depositions inno way affectthe district court's ruling inregard tothe summary judgments. We present the following points as they were presented in district court, as this was the basis upon which the districtcourt granted the summaryjudgments

# . Under the firstclaim of the complaint there was no unlawful conspiracy by Schlitzwithany 

### other defendant. The control1ing point on thisclaim isthat the contract between Schlitz and Mustang specifically and clearly provided inParagraph 5: 

## "

## * * * Buyer acknowledges that Seller has granted no franchise or exclusive territory toBuyer, and Seller may, atany time without incurring any liabilityto Buyer, sell itsproducts to others in the same trade area as Buyer. 

## ** *It This fully signed contract isdated May 2, 1958, and was in full force and effect until July 10, 1970, when Schlitz notified Mustang that Schlitzwould

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 5of 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 thismarket area. However, the existence of the alleged exclusive right iscompletely be1ied by the very terms of the contract upon which the Mustang and Schlitz relationshipwas based. The contract and order forms uniformly state: "Buyer acknowledges that seller has granted no franchise or exclusive territory toBuyer and Sellermay, atany time without incurring any liabilityto 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 isfurther 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 inconsistentwith any ofthe 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 directlywith Schlitz. No failureof Seller to enforce any provision hereof inany instance or instances shall be deemed 

### a waiver of such provision in other instances, nor can the terms hereof be a1tered bycustom or usage. The rights of the parties respecting a11 transactions shall be governed by Wisconsin law." Under these facts, which cannot be disputed and arenot 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 areacquainted with those forms. "A. Those areorder 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, isthat right? "A. I'm assuming so, We probably used them a long time after because they would give you 

### two or three pads ata time and you would use them until they were finished.

"A. And they were sent toyou without telling you there was a difference in them. 

### "Q. You used one or the other of these two order forms in making all of your orders? "A. (Nodded head in the affirmative.) 

### "Q. Will you respond verbally, please, sir. "A. Yes." Schumacher further stated in his deposition that he was aware of the printed matter on the order forms: "Q. In using these order forms, would you sign each of them by your corporate name, Mustang Beverage Company, Inc., by you or by some person in your organization? "A. The buyer isMustang Beverage Company (indicating)

## . The buyer here isby me or by a person designated by me-- 

### "Q. Yes, sir. "A. --and his title.

### "Q. And you would sign each of these when you would make an order. "A. 

### Either me 

### or 

### a person that was designated by me 

### to do it. 

### "Q. And you were acquainted with the reverse side of these exhibits and the printed matter contained thereon, were you not? "A. Very much 

### so. "Q. Very much so. All right. 

### "A. The big 

### print tellsyou what you're going to get and the little

### print what they're going to take away from you. 

### "Q. That would be your summary of the whole of the reverse side of C and C-1, isthat right? Is that right, sir? "A. Right. 

### "Q. And the big type on Exhibit C, for instance says, in bold type, or big type, 'Buyer acknowledges that Seller has granted no franchise or exclusive territory to Buyer, and Sellermay, atany time without incurring any liability to Buyer, sell itsproducts toothers in the same trade area as Buyer. You noted that. "A. Yes. 

### "Q. And inthe big type. "A. Yes. "Q. Sir? "A. Yes." In our view itisclear there was no contract binding upon Schlitz to continue to sell beer toMustang nor to treatMustang as an exclusive wholesaler. This Court also recognizes Sinkoff Beverage Co. v. Jos. Schlitz Brewing Co., 273 N.Y.Supp.2d 364, where in a similar factual situationthe New 

### York Court held that the terms of the written agreement controlled. Mustang had no exclusive right todistribute Schlitz products and Schlitz had the right toterminate the relationship atany time without

cause and without notice. Any claim of conspiracy based upon Schlitz's exercise of that right isclearlywithout foundation. In McCusker 

### v. Roberts, 152Mont. 513, 520, 452 P.2d 408, Montana law clearly holds that: 

### "

## * * * a combination of individuals for theirjoint benefits does not constitute a conspiracy. 

## *

## **the actionable element of conspiracy 

### is the wrong done tothe plaintiffs, not the combination of persons constituting the conspiracy. " Mustang 

### was not merchandising the Schlitz products 

### or handling the distributorship to the satisfaction of Schlitz. Accordingly, Schlitz, inaccordance withthe contract rights, terminated the relationshipwith Mustang and entered into negotiations with the other defendants for distribution of Schlitz products in the Billings area. Mustang a1

### so claims unlawful interference in the contractual rights between Mustang and Schlitz by all of the other defendants, except Schlitz. The control1ing point isthatMustang was granted no exclusive right to distribute Schlitzproducts, and Mustang's allegations of interference with such an alleged right of distributorship arewithout foundation. The Declaration of Terms and order forms conclusively establish that Schlitz had



### no contractual obligations toMustang other than a buyer-sellerrelationship with respect 

### toeach beer purchase order. Therefore, there could be no unlawful interference by defendant Brad Brown nor the other defendants with the contractual relations because no such contractual relations existed. Mustang's third claim isforan alleged breach of contract on the part of Schlitz. Again, we refer to the written agreements that existed between Schlitz and Mustang. These documents establish the relationship as "exclusively that of buyer and sellerand may be terminated by either party atany time, without cause and without notice." We refer to our prior comments in regard tothe existence of a contract as support for the position that there was no breach of contract by Schlitz. The fourth and fifthclaims of Mustang contend that defendants conspired witheach other tomonopolize the wholesale beer market inthe Billings area to the damage of Mustang. SinceMustang had no exclusive right to purchase from Schlitz 

### atwholesale, Mustang's allegations of a conspiracy by the wholesalers is clearly irrelevant. The law on monopoly and conspiracy 

### tomonopolize 

### is setforth in58 C.J.S. Monopolies, 5 15et seq. 

### First,the element of an injury to the public and a power 

### tocontrolprices, which isnot even remotely suggested or intimated here, and the power to suppress competition, which again was 

### not even remotely contended by Mustang, must be present. Of interest here isfurther testimony of Schumacher in his deposition and we quote: "Q. 

### Now, I want you to statewhat factsyou have of your own knowledge of meetings between the Defendants in which they conspired to deprive Mustang of itsexclusive right to distribute Schlitz inits market area. "MR. SHEEHY: Now, letme hear this question, please. (Questionread by reporter.) "MR. SHEEHY: I have no objection to that. "A. Rumors isall that I get." There isno evidence in this record of any nature whatsoever whereby Mustang isrestrained by contract or otherwise from exercising the beer distribution business. Mustang was cancelled by Schlitz for deficiencies in the sale and distribution of its products. Fundamental to all of Mustang's allegations isthe alleged injury to Mustang by depriving itof a "Schlitz dealership". However, we find no such "dealership" ever existed. J%FFHqtionship between Schlitz and Mustang

was purely one of buyer and sel court

### 's ruling

# .

We concur: 

# /

\ Mr. Justice Frank I. Haswell did not participate inthis cause.Mr. Justice Gene B. Daly dissenting: I respectfully dissent to the view of the majority as it relates to defendant Jos. Schlitz Brewing Company. Rule 56 of the Montana Rules Civil Procedure setting forth the basis on which a summary judgment can be granted 

### is essentially identical to the federal rule, In Kober & Kyriss v, ~illings Deaconess Hospital, 148 Mont. 117, 121, 417 P.2d 476, this Court in discussing the requirements of that rule stated: "In this case, respondent has theburden of showing the absence of any genuine factual issue. 6Moore F,P. 2d, 556.15 [3] starting atp, 2335 reads: 

### he courts are in entire agreement that the moving party for a summary judgment has the burden of showing the absence of any genuine issue as to allthe material facts, which, under applicableprinciples of substantive law, entitlehim to a judgment as a matter of law. 

### he he courts hold the movant toa strict standard. To satisfyhisburden the movant must make a showing that isquite clearwhat the truth is, and that excludes any real doubt 

### as to the existence of any genuine issue of material fact. "'~ince it 

### isnot the function of the trialcourt toadjudicate genuine factual issues atthe hearing on the motion for summary judgment, inruling on the motion allinferences of fact from the proofs proffered atthe hearing must be drawn against the movant and in favor of the party opposing the motion. And the papers supporting movant's position are closely scrutinized while the opposing papers are indulgently treated, 

# ik determining whether the movant has satisfied his burden. I II (Emphasis added). The Court in Kober. goes on to citewith approval 

### a California

case standing for the proposition that the summary judgment statute cannot be used as a substitute for the trial of issues of fact and such motions should be denied without hesitance if there existed any doubt as to the propriety of the motion. 

### It appears defendant Jos. Schlitz Brewing Company relies salely on the language of the original "buy-sell agreement'' and the provisions printed on the back of 

### its standard arder forms, contending that those writings constitute the entire agreement existing between it and plaintiff Mustang Beverage Company.

### Plaintiff Mustang Beverage Company alleged the existence a£ 

### certain factswhich substantially altered the nature of the contractual agreement between the parties: 1. Schlitz reserved the right to control the retail prices charged by Mustang for Schlitzproducts. 2, 

### Schlitz demanded the right to inspect 

### us tang's books and to require that certain records and books be kept. 

### 3. Schlitz reserved the right to set and enforce sales quotas. 4. 

### Schlitz required that Mustang expend money in advertising and promotion, including painting of trucks, without reimbursement from Schlitz. 5. 

### Schlitz required that Mustang keep a certain amount of inventory. 6. 

### Schlitz set mandatory procedures for destruction, at the expense of Mustang, beer which was too old. 7. 

### Schlitz reserved the right to object to

### us tang's taking

on distribution ofbeer products from other brewers. 8. 

### Schlitzprescribed the method inwhich Schlitzproducts

were housed in

### us tang's warehouses. Mustang further alleged the consideration provided to it by Schlitz for these various alleged conditionswas an exclusive distributorship af Schlitzproducts in a particular area of the state. Mustang alleges this fact was admitted in sworn testimony by a district representative of Schlitz. Itwould appear that there were numerous factual issues presented to the trial court. If there is any validity to the allegationsmade by Mustang, then the writings upon which Schlitz relies are more in the nature of an elaborate waiver of rights

I I 

### than an accurate representationor integration" of the terms of the actual contractual agreement existing between these two litigants, This case involves a sales contract between merchants, and

### as such comes under the provisions of Montana's Uniform Commercial Code. Under a proper application of section 87A-2-202,R,C.M, 

### 1947, the very fact that none of the requirements and agreements alleged by Mustang were included or even mentioned in the written contract would compel their admissibility, if provable. 

### Iwould reverse and remand this portion of the cause for trial on the merits,



# ---- Associate Justice.No. 12323 

# I1 INTHE SUPREME COURT 

# I/ OF THE 

# I1 STATE OF MONTANA

7

# 11 MUSTANG BEVERAGE COMPANY, INC. 

### , Plaintiff and Appellant,

v. JOS. SCHLITZ BREWING COMPANY; WALT'S BEVERAGES, INC.; ATLAS 

### dUH

## 2

## 7I973 BEVERAGES, INC.; FRED BRIGGS 

# yiomad

# 8. -hL+tr 3-J DISTRIBUTING COMPANY, INC.; ACE QB,RRK OF SklPnE~fiE 66T1S BEVERAGE COMPANY; ALLIED DISTRIBUTORS, mlht~ OF MQRIAI~A INC.; FRED L. BRIGGS; PETER DECKER; and BRAD BROWN, Defendants and Respondents.

ORDER 

# I Upon the petition of Ace Beverage Company; Fred L. 

# 11 Briggs and Peter Decker, Defendants and ~espondbnts 

# 11 named above, and the Court being satisfied that nothing 

# I
2Q

# 11 appears in the record on appeal to support the statement 21

# 11 that Briggs, Decker and Kembel were with the Ace 22

# 11 Beverage Company of MilesCity, Montana, and good cause 

# I

23

# 11 appearing therefore; 

# 1

24

# 11 IT IS ORDERED that the opinion in the above 

# I

25

# 11
entitled matter dated May 29, 1973 be amended by deleting
26

# // the last sentence of the third principal paragraph 

# I

27

# 11 appearing on page 2, which reads as follows: "Decker, Briggs and one Carl Kembel were with the Ace Beverage Company of Miles City, Montana, and are alleged to have conspired to form Walt's Beverages, Inc." and by inserting in its place the following: "Decker, Briggs and one Carl Kembel,the latter being with the Ace Beverage Company inMiles City, Montana, are alleged tohave conspired to form Wal't Beverages, Inc."

DATED this