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TOM BREWER D/B/A BREWER AND ASSOCIATES v. PAUL R. WILLIAMS

APRIL 26, 1989

TOM BREWER D/B/A BREWER AND ASSOCIATES
v.
PAUL R. WILLIAMS



BEFORE ROY NOBLE LEE, C.J., PRATHER AND BLASS, JJ.

BLASS, JUSTICE, FOR THE COURT:

This contract dispute was tried by a jury in the County Court of Forrest County, Mississippi on December 9 and 10, 1985. At the close of plaintiff's case, Tom Brewer moved for a directed verdict. This motion was denied. At the close of all evidence a similar motion was made and denied and the case was submitted to the jury. The jury found for the plaintiff, Paul Williams and against defendant, Tom Brewer, d/b/a Brewer and Associates and assessed damages at $15,000. A co-defendant, Royal Crown Bottling Company of Ellisville was discharged by the verdict.

Brewer filed a motion in the county court for judgment n.o.v., or, in the alternative, a new trial. Both were denied. He then appealed to the Circuit Court of Forrest County. On May 23, 1986, the circuit judge heard oral argument and took the appeal under advisement. The judgment affirming the jury verdict was issued on May 21, 1987. From this judgment, Brewer appeals, assigning the following errors:

 1. Williams, the plaintiff, admitted in documents he signed and under cross examination that his contract with the

 defendant had been fully performed. The court erred in failing to direct a verdict for the defendant.

 2. The circuit court judgment is void because the complaint stood dismissed by operation of Mississippi Supreme Court Rule 47 (now Rule 15).

 Finding Brewer's first point well taken, we reverse and render.

 FACTS

 Brewer and Williams entered into a contract on September 21, 1982, for the sale of a soft drink vending machine route for Ten Thousand Dollars ($10,000). Brewer's obligation was to provide ten (10) machine locations with exlusive four (4) year lease agreements and 150 cases of start-up inventory. The contract itself consisted of a document entitled" Purchase Order "and a" Location List ". Accounts at Big Yank and Hercules factories were also added to the contract.

 Brewer had an arrangement with the bottling company, Royal Crown Bottling of Ellisville, to provide the vending machines at no charge, provided all inventory was purchased from that company. Before the contract in question here was signed, Brewer arranged a meeting between Williams and the officials at Royal Crown Bottling of Ellisville. Williams satisfied himself about his relationship with the bottler. After the individual location leases were signed and after his visit to the bottling plant, Williams signed the" location list "and contract. In addition, he admitted at the trial that Brewer had fully performed all of his contractual obligations in accordance with the terms of the contract.

 For two and one-half years there were no complaints and Williams purchased from RC of Ellisville and RC of Ellisville provided the machines without any assistance from Brewer Then the bottler, for reasons of its own, terminated Williams' right to buy drinks for the machines and picked up the machines. Williams, through his attorney, wrote to Brewer demanding he" defend his contract ". Brewer did not answer the letter. Williams then sued Brewer and the bottler for breach of contract.

 I.

 DID THE TRIAL COURT ERR IN FAILING TO DIRECT A VERDICT FOR THE DEFENDANT, TOM BREWER?

 The motion for a directed verdict at the conclusion of the plaintiff's case, and the request for a peremptory instruction for the defendant, test the legal sufficiency of the evidence to support the verdict for the plaintiff. Miss. R. Civ. P. 50 (a). Upon denial of the motion for a directed verdict at the close of all evidence, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Once a verdict is returned the court may direct the entry of judgment as if the requested directed verdict had been granted. Miss. R. Civ. P. 50 (b). Whether the court should ...


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