NO. 12323 

IN THE 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 : mkY 2 I( 7973 

Submitted: April 25, 1973 

Decided : m2 9 I973 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

This is an appeal from an order of the district court of the 

thirteenth judicial district, Yellowst.one County, granting summary judgment 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. 

It 5 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 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 Mheatland County. 

On June 4, 1958, Mustang and Schlitz entered into a written agreement entitled "Declaration of Terms" whereunder a buyer-seller relationship 

was establ i shed between Schl i tz as brewery se1 ler, 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, I nc . 

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,~. Anaconda Company, 

159 Mont. 28, 494 P.2d 922, 924, 29 St.Rep. 170, 174, 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, 

29 St. Rep. 244, 246, 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. 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 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 a1 1 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 

had ample time and opportunity to discover 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 in no way affect the district 

court's rul i ng 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 control1 ing point on this 
claim is that the 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. * * *It 

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 be1 ied 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 f orms : 

"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 a1 tered by 
custom or usage. The rights of the parties respecti ng a1 1 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 used them a long time 

after because they would give you two or three pads at a 

time and you would use them until they were finished. 

"A. And they were sent to you 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 is Mustang Beverage Company (indicating) . The buyer here is by 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 tells you 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, is that 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 Seller may, at any time without incurring 

any liability to Buyer, sell its products to others in 

the same trade area as Buyer. You noted that. 

"A. Yes. 

"Q. And in the big type. 

"A. Yes. 

"Q. Sir? 

"A. Yes." 

In our view it is clear there was no contract binding upon Schlitz to continue to sell beer to Mustang nor to treat Mustang 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 situation the 

New York Court held that the terms of the written agreement control led. 

Mustang had no exclusive right to distribute Schlitz products and 

Schlitz had the right to terminate the relationship at any time without 

cause and without notice. Any claim of conspiracy based upon Schlitz's 

exercise of that right is clearly without foundation. In McCusker v. Roberts, 

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

" * * * a combination of individuals for their joint 

benefits does not constitute a conspiracy. * * * 
the actionable element of conspiracy is the wrong done 

to the 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, 

in accordance with the contract rights, terminated the relationship with 

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 Schli tz by all of the other defendants, except Schlitz. 

The control1 ing point is that Mustang was granted no exclusive right to 

distribute Schlitz products, and Mustang's allegations of interference with 

such an alleged right of distributorship are without foundation. The Declaration of Terms and order forms conclusively establish that Schlitz had 

no contractual obligations to Mustang other than a buyer-sel ler relationship 

with respect to each 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 is for an alleged breach of contract on the 

part of Schli tz. Again, we refer to the written agreements that existed 

between Schlitz and Mustang. These documents establish the relationship as 

"exclusively that of buyer and seller and may be terminated by either party 

at any time, without cause and without notice." We refer to our prior comments in regard to the existence of a contract as support for the position 

that there was no breach of contract by Schlitz. 

The fourth and fifth claims of Mustang contend that defendants 

conspired with each other to monopol ize the wholesale beer market in the 

Bill ings area to the damage of Mustang. Since Mustang had no exclusive 

right to purchase from Schlitz at wholesale, Mustang's allegations of a 

conspiracy by the wholesalers is clearly irrelevant. The law on monopoly 

and conspiracy to monopolize is set forth in 58 C.J.S. Monopolies, 5 15 et 

seq. First, the element of an injury to the public and a power to control 
prices, which is not 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 is further testimony of Schumacher in his deposition and we quote: 

"Q. Now, I want you to state what facts you have of 

your own knowledge of meetings between the 

Defendants in which they conspired to deprive Mustang 

of its exclusive right to distribute Schlitz in its 

market area. 

"MR. SHEEHY: Now, let me hear this question, please. 

(Question read by reporter. ) 

"MR. SHEEHY: I have no objection to that. 

"A. Rumors is all that I get." 

There is no evidence in this record of any nature whatsoever whereby Mustang 

is restrained 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 is the alleged injury 

to Mustang by depriving it of a "Schlitz dealership". However, we find no 

such "dealership" ever existed. J%FFHqtionship between Schl i tz and Mustang 

was purely one of buyer and sel 

court ' s rul i ng . 

We concur: / 

\ Mr. Justice Frank I. Haswell did not participate in this 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 the burden of showing 

the absence of any genuine factual issue. 6 Moore F,P. 

2d, 556.15 [3] starting at p, 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 

all the material facts, which, under applicable principles of substantive law, entitle him to a judgment 

as a matter of law. 

 he he courts hold the movant to a strict standard. 

To satisfy his burden the movant must make a showing 

that is quite clear what the truth is, and that excludes 

any real doubt as to the existence of any genuine issue 

of material fact. 

"'~ince it is not the function of the trial court 

to adjudicate genuine factual issues at the hearing on 

the motion for summary judgment, in ruling on the motion all inferences of fact from the proofs proffered 

at the 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 cite with 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 facts which 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 Schlitz products. 

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 of beer products from other brewers. 

8. Schlitz prescribed the method in which Schlitz products 

were housed in us tang's warehouses. 

Mustang further alleged the consideration provided to it 

by Schlitz for these various alleged conditions was an exclusive 

distributorship af Schlitz products in a particular area of the 

state. Mustang alleges this fact was admitted in sworn testimony 

by a district representative of Schlitz. 

It would appear that there were numerous factual issues 

presented to the trial court. If there is any validity to the 

allegations made 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 representation or 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. 

I would reverse and remand this portion of the cause for 

trial on the merits, 

---- 

Associate Justice. 
No. 12323 

I1 IN THE 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 7 I973 

BEVERAGES, INC.; FRED BRIGGS yi omad 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 Miles City, 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 in Miles City, Montana, are 

alleged to have conspired to form 

Wal't Beverages, Inc." 

DATED this