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09/14/93 STRAETER DISTRIBUTING v. FRY-WAGNER MOVING

September 14, 1993

STRAETER DISTRIBUTING, INC. PLAINTIFF/APPELLANT/ CROSS-RESPONDENT,
v.
FRY-WAGNER MOVING & STORAGE COMPANY, INC., DEFENDANT/RESPONDENT/ CROSS-APPELLANT.



Appeal from the Circuit Court of St. Louis County. Honorable Melvyn W. Wiesman.

Stanley A. Grimm, Presiding Judge, Carl R. Gaertner, Judge, concurs. Clifford H. Ahrens, Judge, concurs.

The opinion of the court was delivered by: Grimm

Seller sued buyer for specific performance of a contract and for breach of that contract. Buyer counterclaimed seeking specific performance of that contract and damages. After a bench trial, the trial court entered judgment giving each party specific directions to perform the contract and awarded seller damages. Seller appeals; buyer cross appeals. We dismiss seller's appeal for failure to comply with Rule 84.04; we modify the judgment and affirm.

I. Background

In 1988, buyer agreed to purchase four trailers from seller. Buyer specified a number of the trailers were to include optional features. One option required the trailers to be equipped with 60,000 pound dock levelers; this device raises the trailer to the level of a loading dock.

Buyer received three of the four new trailers, but only received title to two. Two of the trailers received were equipped with 40,000 pound dock levelers instead of 60,000. Also, the paint began flaking off the trailers soon after delivery.

In part payment, buyer was to trade-in pieces of used equipment. Buyer never delivered one of the used trailers it was to trade in. Also, buyer refused to turn over title to two trailers.

II. Seller's Brief

Seller's brief sets forth the following as its points relied on:

I. After substantial performance by seller, and default by buyer by failing to pay and perform in like kind, specific performance is not available to the breaching buyer.

II. Under Missouri law, an Implied Warranty of Merchantability, as in this case, U.C.C. does not permit damages for trivial cosmetic defects which do not impair the value of the goods for which they are purchased, i.e., the paint on beds of the trailer.

III. Damages for breach of an express warranty in a contract for sale of goods cannot be awarded in the absence of substantial evidence that the actual value of merchandise received was less than the value as represented by the seller, i.e., the difference in values before and after.

IV. The trial court is compelled to apply principles of equity to compute damages arising from a breach of contract not specifically addressed by U.C.C., and the trial court erred in failing to do so in this case.

Rule 84.04(d) requires that points relied on "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . ." "The three components of a point relied on are (1) a concise statement of the challenged ruling of the trial court, (2) the rule of law which the court should have applied, and (3) the evidentiary basis upon which the asserted rule is applicable." Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.S.D. 1988). Appellate ...


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