565 S.W.2d 838 | Mo. Ct. App. | 1978
Hamilton Music, Inc. (hereinafter plaintiff) filed a three count action against Donald E. York and Ronald E. Mahan, d/b/a Don & Ron’s Music Center (hereinafter defendants), in the Circuit Court of Cole County, Missouri. The action was inspired by a franchise agreement to operate a retail music store in Jefferson City, Missouri, and related business dealings between the parties. Plaintiff was the franchisor and holder of a certain promissory note; defendants were the franchisee and makers of the promissory note. Count I of plaintiff’s petition was an action on the promissory note, Count II thereof was an action for royalties due and owing under the franchise agreement, and Count III thereof was an action for money owed on an open account. Defendants filed a counterclaim seeking damages for plaintiff’s breach of the franchise agreement.
Two points are relied on by plaintiff on appeal. The first point — “[t]he court erred in failing to permit appellant [plaintiff] to introduce a certain check written by respondents [defendants] on a pre-printed check, with appellant’s [plaintiff’s] name on it” — is so beset with procedural attrition that nothing is preserved for appellate review. Rule 84.04(d) commands that the “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 . . . (Emphasis added.) The mere espousal of purported error, unaccompanied by a statement as to “wherein and why”- it is claimed to be erroneous, does not comply with Rule 84.04(d), supra, and preserves nothing for appellate review. Absent the incorporation of a statement as to “wherein and why” an action or ruling of the trial court is claimed to be erroneous, an appellate court is presented with nothing more than an abstraction and no duty evolves upon it to search the transcript or seine the argument portion of a brief to supply the missing ingredients of an errant “point relied on”. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 629-630 (Mo.App.1976); and Dors v. Wulff, 522 S.W.2d 325, 327 (Mo.App.1975).
Plaintiff’s final point, that the trial court erred in not admitting Exhibits No. 4, 5, 6 and 8 offered by plaintiff as “business records”, is at best a bare bones compliance with Rule 84.04(d). Exhibits No. 4, 5 and 6, after being tersely identified as letters from plaintiff’s files, were offered into evidence under the guise of constituting “business records” and, hence, admissible as exceptions to the hearsay rule. Defendants’ objections to these exhibits were sustained by the trial court. Plaintiff at the time apparently concurred with the trial court’s ruling because it made no offer of proof of any kind, and, more-particularly, no offer of proof that so much as even hinted or suggested that the exhibits were prepared in such a manner as to fall within the purview of Sections 490.660 to 490.690, commonly cited as “The Uniform Business Records As Evidence Law”. As succinctly stated in Hays v. Western Auto Supply Company, 405 S.W.2d 877, 881 (Mo.1966), “[n]othing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof.” This excerpt from Hays was cited with approval and relied on in Tile-Craft Products Co., Inc. v. Colonial Properties, Inc., 498 S.W.2d 547, 549 (Mo.1973), wherein the court held that when a rejected exhibit purportedly constituting a business record was unaccompanied by an offer of proof, nothing was preserved for appellate review insofar as the rejected exhibit was concerned. Regarding plaintiff’s Exhibit No. 8, it too was declared inadmissible by the trial court. However, as some semblance of an offer of proof was made by plaintiff when it was rejected to ostensibly warrant its admission, the ruling of the trial court thereon will be treated as preserved for purposes of appellate review. With respect to Exhibit No. 8 offered by plaintiff, an employee of plaintiff testified that it was a computer print
Judgment affirmed.
All concur.