Brooks v. J.R. Watkins Medical Co.

• Decision Date: 29 March 1921
• Docket Number: 9975.
• Citation: 196 P. 956,81 Okla. 82,1921 OK 109
• Parties: BROOKS ET AL. v. J. R. WATKINS MEDICAL CO.
• Court: Oklahoma Supreme Court

196 P. 956

81 Okla. 82, 1921 OK 109

BROOKS ET AL. v. J. R. WATKINS MEDICAL CO.

No. 9975.

Supreme Court of Oklahoma

March 29, 1921

Syllabus by the Court.

A contract of absolute sale, made by a medical corporation of its various manufactured preparations, in which the purchaser is to sell all goods purchased at regular retail prices to be fixed by the corporation, where its entire product is sold throughout the country only by means of like restrictive contracts, operates as a "restraint of trade," unlawful as to interstate commerce under Act Cong. July 2 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1916, § 8820 et seq.), upon the subject of trusts and restraints of interstate trade.

In all cases of ambiguity, the substance of a contract should be considered, in order to ascertain the intention of the parties; and where the contract is ambiguous in any of its terms, and the ambiguity can be solved by reference to other parts of the contract, or surrounding circumstances which are uncontroverted by the evidence, it is the duty of the court to solve the ambiguity, and to declare the true meaning of the contract. But where the ambiguity cannot be solved by reference to other parts of the contract, and the surrounding circumstances are controverted, the court should charge the jury hypothetically as to the true interpretation of the contract.

Where a demurrer is sustained to each paragraph of the answer, except the paragraph containing a general denial, and exceptions are saved to the ruling of the court, and incorporated in the motion for a new trial, and included in the writ of error the error of the trial court in sustaining the demurrer is properly before this court for review, notwithstanding more than six months intervened between the date of the order sustaining the demurrer and filing a writ of error in this court.

A "final order" is one ending the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties.

Appeal from District Court, Love County; W. S. Freeman, Judge.

Action by the J. R. Watkins Medical Company against S. L. Brooks and others. Judgment for plaintiff, and both parties appeal. Reversed and remanded, with directions.

H. A Stanley, of Ardmore, for plaintiffs in error.

T. B Wilkins, of Marietta, for defendant in error.

PITCHFORD J.

This action was commenced in the district court of Love county, Okl., by the plaintiff against the defendants, seeking to recover judgment for the sum of $1,434.96, alleged to be due the plaintiff for certain goods sold to the defendant S. L. Brooks, under and by virtue of contract, dated December 1, 1914. The defendants Freeman and Grisham were sureties for Brooks. The contract provided that the plaintiff was to furnish, free on board of cars, at Winona, Minn., any and all medicines, etc., manufactured or sold, or which may hereafter be manufactured or sold by it, at the usual and customary wholesale prices, as the defendant Brooks might reasonably require for sale by him from time to time, from date of the agreement until the 1st day of March, 1916, in certain described territory, in Love county, Okl. The defendant Brooks was to make a thorough and personal canvass of said territory at least three time a year, at his own cost and expense, and to provide a good team and proper wagon and outfit therefor, and to sell said medicines, etc., or so much thereof as possible, and at all times during said term of agreement he was to keep a complete record of all goods disposed of by him and on hand, and to make to the plaintiff complete regular weekly written reports of all sales and collections. He was to pay the plaintiff, at Winona, Minn., the wholesale prices aforesaid, for the medicines, etc., and to prepay the freight and express charged thereon in the manner and in accordance with the provisions of the weekly report blanks to be furnished by the plaintiff.

The contract further provided that no printing, advertising, or other matter of said company, sent to or distributed by the defendant, should be construed to modify or change the terms of the agreement; that the agreement, as signed, should be a complete, entire, and the only agreement between the parties, and that the same should not be varied, changed, or modified in any respect, unless in writing executed by the parties thereto. It is further stipulated that, at the date of agreement, there was due the plaintiff from the defendant Brooks, for goods sold and delivered to him under a prior agreement of December, 1911, the sum of $1,368.15, which sum the defendant promised and agreed to pay during the term of the agreement, the payment of which was thereby extended.

The defendants filed the following second amended answer:

"First. That they deny each and every material allegation contained in plaintiff's petition and exhibits thereto, except those hereinafter specifically admitted to be true.

Second. Defendants, further answering, admit the execution of the contract sued upon herein, and agree that the claimed indebtedness of $1,368.15 arose by virtue and under prior agreements, and say that said prior agreements were made and covered a period of time from about December 1, 1911, until the date shown in the contract sued upon herein; that said contracts provided for the sale of plaintiff's goods, wares, and merchandise manufactured and sold by it, and were for a restricted and specified territory, the same as described in the contract sued upon herein; that said contracts contained the further provisions that defendant S. L. Brooks should devote his whole time to the sale of plaintiff's goods, and to sell no other goods, and to sell goods at the regular retail prices indicated by plaintiff in said restricted territory, and to make weekly reports of his business upon blanks furnished by plaintiff and at the regular retail prices indicated by plaintiff in said weekly report blanks; that plaintiff did furnish to defendant Brooks said weekly report blanks, which specified and set out the retail prices of plaintiff's goods so sold by said Brooks, and the defendant Brooks did make weekly reports of his business and of plaintiff's goods sold during said time and on said blanks so furnished by plaintiff therein; that said defendant Brooks sold said goods, wares, and merchandise in said mentioned restricted territory, the same territory as described in the contract sued upon herein, and at the prices indicated by plaintiff, which said prices of goods were plainly stamped and printed thereon by plaintiff and over its signature, and which said prices the defendant Brooks was compelled by plaintiff to use in selling to the retail trade and in making his reports to the plaintiff.

Third. The defendants further say that plaintiff's business is conducted in the way and manner as set out in the preceding paragraph of this amended answer; that plaintiff will sell to only one person or agent in each separate specified and restricted territory, and that plaintiff has each state divided into districts for the purpose of doing business and selling its goods, and that it allows only one person in each district to sell its goods, and that, by virtue of plaintiff's way of doing business, the conditions in the contracts, and requirements made of the agents, the plaintiff dictates and sets the retail prices of its goods, wares, and merchandise sold by it, and thus competition is eliminated and prices artificially maintained throughout the various states of the Union, including Oklahoma; that the plaintiff has conducted its business during all of said time in which the indebtedness of $1,434.98 was accumulated by means of like restrictive contracts as to the one sued upon herein and by dictating and compelling and fixing the retail prices at which its goods should be sold in each district and throughout the various states of the United States. Therefore the defendants say that the contract sued upon herein is void and unenforceable; that said contract and plaintiff's manner of doing business and maintaining prices is in violation of the plain provisions of the acts of Congress defining and regulating commerce between the states.

Fourth. Said defendants, for a fourth and further defense, allege and say that they admit that plaintiff is a foreign corporation duly created, organized, and existing under and by virtue of the laws of the state of Minnesota, and allege and say that said plaintiff has been doing business in the state of Oklahoma since long prior to the 1st day of December, 1911, and that said plaintiff has never filed in the office of the secretary of state of the state of Oklahoma a certified copy of its charter or articles of incorporation, and said plaintiff has never appointed an agent residing at the capital of the state of Oklahoma, upon whom the service of process may be had; that said plaintiff is doing business for profit, and is not a charitable or religious corporation, and therefore has no right to maintain this action in the courts of the state of Oklahoma."

Plaintiff demurred to the second, third, and fourth paragraphs of the amended answer, which demurrer was sustained, and the defendants excepted to the ruling of the court and elected to stand upon their answer. The jury returned a verdict in favor of the plaintiff for the sum of $748.93, from which judgment both plaintiff and defendants appeal.

The main grounds presented and argued by the defendants for a reversal of the judgment is the action of the court in sustaining the demurrer and in refusing to give the following instruction:

"You are instructed, gentlemen of the jury, that evidence in this case has been offered and admitted for your consideration tending to

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