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Agriservices of Brunswick, LLC v. Jacoby

Court of Appeals of Missouri, Western District

April 24, 2018

JAMES JACOBY, Appellant.


          Before Division Four: Mark D. Pfeiffer, Chief Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge


         James Jacoby ("Jacoby") appeals from the judgment entered by the Circuit Court of Chariton County, Missouri ("trial court") in favor of AGRIServices of Brunswick, LLC ("ASB") on its claim to recover money owed as an unpaid balance on account and against Jacoby on his counterclaims for negligent and fraudulent misrepresentation. We affirm the trial court's judgment as modified.

         Factual and Procedural Background

         ASB is a full service agricultural retailer with several locations in and around Chariton County. Their business consists primarily of selling seed for use in farming and providing fertilizer application and weed spraying services. Jacoby is a farmer who has been a customer of ASB since at least 2002. In Mid-May of 2015, Jacoby spoke to an ASB sales representative regarding a potential purchase of soybean seed. At the time, he did not know the exact type of seed he wanted and informed the sales representative that he would call back after making his decision. Jacoby contacted the sales representative again on July 2 to place his first order for 120 units of Mycogen 5N393R2 seed ("393 seed").[1] The sales representative informed Jacoby that they currently had "treated seed" in stock, which ASB wanted to sell off before the end of the planting season, and that ASB would not charge him the extra cost for the treatment.[2] Jacoby agreed to accept delivery of treated 393 seed. The sales representative completed the delivery on the same day the order was placed, and Jacoby accepted the delivery without complaint.

         Jacoby contacted ASB again on July 6 requesting an additional 200 units of 393 seed. ASB's sales representative responded by delivering a shipment of treated seed in the requested amount on the same day. This seed delivery was also accepted by Jacoby without complaint. On July 13, Jacoby made a third and final request for seed. This time however he ordered Mycogen 5N431R2 seed ("431 seed").[3] ASB delivered the 431 seed the following day. Unlike the 393 seed, the 431 seed that was delivered had not been treated. Once again, the delivery of the seed was accepted by Jacoby without complaint. The ASB sales representative who made the deliveries testified that he left a delivery ticket for the seed sitting on the dashboard of Jacoby's truck in all three instances. However, ASB concedes that it failed to include a "seed tag" with each delivery as required by section 266.051.[4] After all three deliveries had been received, Jacoby proceeded to plant the seed in his fields.

         ASB began sending account statements to Jacoby in late July of 2015. These statements included charges for both the seed that had been delivered as well as weed spraying and fertilizer application services that ASB had performed on Jacoby's behalf during the same year. Despite receiving these statements, Jacoby made no effort to pay the amounts due. ASB continued its efforts to collect payment from Jacoby and, in March of 2016, Jacoby met with ASB's retail sales manager to discuss the amount outstanding on the account. During this March meeting, Jacoby complained about the type and amount of fertilizer used by ASB, the acreage sprayed for weeds, and the seed prices that he had been charged compared to the prices he had been quoted.[5] Jacoby did not raise any complaint regarding the types of seed that were delivered or the failure of ASB to provide seed tags. While the sales manager disagreed with Jacoby's complaints, he nevertheless sought to appease him by providing a credit that reduced the amount owed for the fertilizer and weed spraying as well as the seed purchases. Jacoby then tendered payment for the reduced fertilizer and weed spraying charges, which ASB accepted. The charges relating to the seed ASB had provided remained unpaid.

         On July 26, 2016, ASB initiated the current action by bringing a one-count petition to recover the outstanding balance owed on Jacoby's account. Jacoby responded by filing a single count counterclaim that he later amended to three counts. In the first count, Jacoby claimed that he had only ordered untreated 393 seed from ASB and that ASB's delivery of treated 393 and untreated 431 seed, coupled with the fact that ASB had failed to provide seed tags when delivering the seed in violation of section 266.051, resulted in damages because he was unable to properly manage the control of weeds in his bean field.[6] The second and third counts alleged negligent and fraudulent misrepresentation respectively regarding ASB's delivery of treated 393 and untreated 431 seed, as these were not what Jacoby claimed ASB represented it would supply.

         The case was tried to the trial court without a jury. The trial court ruled in favor of ASB, finding that Jacoby had ordered both 393 and 431 seed and had also agreed to accept treated as opposed to untreated 393 seed.[7] The trial court further denied Jacoby's counterclaims concluding that ASB had delivered "exactly what he agreed to purchase" and had neither negligently nor fraudulently misled him. The trial court awarded ASB $21, 420.00 in damages for the unpaid amount owed on the account as well as prejudgment and postjudgment interest at the statutory rate of 9% per annum.[8] Jacoby now appeals.

         Standard of Review

         "When reviewing a trial court's judgment in a court-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Holm v. Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596 (Mo. banc 2017) (quoting Hunter v. Moore, 486 S.W.3d 919, 925 (Mo. banc 2016)). The trial court is "free to believe any, all, or none of the evidence presented." Id. (quoting Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014)). "In reviewing whether a judgment is supported by substantial evidence, this Court views the evidence in the light most favorable to the judgment, accepting as true evidence and inferences favorable to the judgment and disregarding all contrary evidence." In re A.L.R., 511 S.W.3d 408, 413 (Mo. banc 2017). "Evidence is substantial when it has some probative force on each fact that is necessary to sustain the trial court's judgment." Holm, 514 S.W.3d at 596. Likewise, "where the resolution of conflicting testimony is required to determine the merits of an against-the-weight-of-the-evidence argument, we defer to the trial court's credibility determinations in the same manner as in the resolution of a not-supported-by-substantial-evidence argument." Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010). "A claim that the trial court's judgment is against the weight of the evidence presupposes there is sufficient evidence to support the judgment and effectively weighs 'how much persuasive value [the] evidence has.'" Holm, 514 S.W.3d at 596 (quoting Ivie, 439 S.W.3d at 205-06.).


         Jacoby raises five points on appeal. In his first point, he contends that the trial court erred in entering judgment in favor of ASB on its action on account because ASB failed to "establish that it delivered the seed in a customary manner." Such an argument is perplexing given that no Missouri court has ever found delivery of merchandise "in a customary manner" to be an element for an action on account.[9] Jacoby seems to understand this fact as his brief properly identifies the three well defined elements for an action on account without including any mention of the manner of delivery. Jacoby nevertheless persists in maintaining that ASB was required to establish that its delivery of the seed was done "in a customary manner" and points to section 266.051, which obligates those selling seed for agricultural use to affix a label to each container giving information regarding the particular seed held within, to support his contention. However, there is nothing in section 266.051 to suggest it modifies or adds to the elements of the common law based action on account. Nor does Jacoby direct this court to any case law or other legal sources to support his conclusion that section 266.051 required ASB to prove they had affixed seed tags to each container as a prerequisite to recovering the ...

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