Clark v. The J. R. Watkins Medical Co.

• Decision Date: 02 November 1914
• Docket Number: 220
• Citation: 171 S.W. 136,115 Ark. 166
• Parties: CLARK v. THE J. R. WATKINS MEDICAL COMPANY
• Court: Arkansas Supreme Court

171 S.W. 136

115 Ark. 166

CLARK v. THE J. R. WATKINS MEDICAL COMPANY

No. 220

Supreme Court of Arkansas

November 2, 1914

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court; J. F. Gautney, Judge; reversed.

STATEMENT BY THE COURT.

The appellee, a corporation organized under the laws of Minnesota and maintaining its principal place of business at Winona, in that State, brought suit against the appellants to recover the price of certain medicines and articles of merchandise furnished by it to them under the terms of a written contract.

Appellants Virgil Clark and Isaac Davidson, entered into a written contract with appellee guaranteeing payment for the articles furnished their principal, Joe Clark, under his contract hence the suit against them.

There was attached to the complaint the exhibits which constituted the contract between the parties upon which this suit was based. The first of these is a writing which has the caption "Application for Agency." This application was dated the 3d of October, 1908, and contained answers to the various questions propounded to the applicant and, among others, the following answers were given, which, stated in narrative form, are as follows: That applicant was a farmer, and had never previously canvassed for any one. That he spoke English, and could furnish the required references. That he was not incapacitated for hard labor, and could furnish a suitable team and wagon, and preferred to have territory assigned to him in the State of Arkansas, in which State his first choice of territory was the county of Independence and his second choice the county of Carroll, but that he would be willing to go to a distance for territory if none was vacant near him. That he could begin canvassing within fifteen or twenty days after the acceptance of his application, and that he would desire to run a time account and pay for goods furnished him, and would want the company to sell him a wagon on credit. This application contained the names of Virgil Clark and Isaac Davidson as names of parties applicant would expect to secure as bondsmen on his contract, if his application was accepted and, upon the acceptance of the application, they became his sureties and have been sued as such.

An agreement was executed between the parties, which bears date October 9, 1908, and which was made exhibit No. 2 to appellee's complaint. This contract recites that the J. R. Watkins Medical Company appoints Joe Clark as a traveling salesman for its products in the following described territory, and no other, namely: In the State of Arkansas, County of Independence; and further that the J. R. Watkins Medical Company agrees to furnish its products f. o. b. cars at place of shipment, to said traveling salesman above mentioned, at such times and in such reasonable quantities as he may order, to be charged to him in accordance with the company's printed price list current, during the term of this contract, which is to be considered a part thereof. That the medicine company promises and agrees to take back all goods left in the possession of the traveling salesman at the time he quits work and to give credit for same at the prices originally charged, provided said goods are returned to the company by prepaid freight and are in the same condition as when shipped, otherwise a reasonable charge will be made for putting such goods into merchantable condition. That if, at the expiration of the service of such traveling salesman, there should be any sum due him by said medical company, the said company agrees to immediately pay the amount so due in cash and, at the expiration of this contract, the medical company agrees to make a new contract with said traveling salesman without requiring his account to be paid in full at that time, provided the amount of his business and the conduct of the same has been satisfactory to the company. That the traveling salesman, for his part, promises to faithfully perform each and all of the agreements printed on the back of this contract. That the contract is not transferable and expires by limitation March 1, 1910. This contract was signed as follows: "The J. R. Watkins Medical Company, by Paul Watkins, Vice President. (Traveling salesman sign here in ink.) Joe Clark."

The following obligation of the sureties was endorsed upon said writing:

"For and in consideration of the appointment of the above mentioned traveling salesman, we hereby agree to be jointly and severally responsible to said The J. R. Watkins Medical Company for the faithful performance of this contract on the part of said traveling salesman as outlined on the back of this agreement."

After the signatures of the sureties there appears the following statement in parentheses:

"The above mentioned sureties are entitled, upon request, at any time, to a full statement from the traveling salesman's register showing the exact condition of the business."

Among the agreements printed on the back of the contract were the following:

"How the products of the J. R. Watkins Medical Company are to be paid for by the traveling salesman. It is agreed that the traveling salesman shall have the choice of two methods of paying for the products of The J. R. Watkins Medical Company under this contract: First, he may run an open account with the company, all products to be charged in accordance with the regular traveling salesman's price list before referred to, and the account to be paid by remitting to the company each week as per its weekly report blanks. Second, he may pay cash within ten days from date of bill for said products, and thus obtain a discount of 3 per cent. from said price list, it being understood that no bill can be discounted while the traveling salesman is still in debt to the company for goods previously furnished him. As a guarantee of good faith, it is necessary for the traveling salesman to furnish sureties on either method of payment and to report each week on the blanks furnished by the company."

And there was also a statement of various agreements on the part of the traveling salesman and, among others, the following:

"To devote all of my time and attention to personally selling and disposing of the products of The J. R. Watkins Medical Company to actual consumers only in my territory, at retail prices to be indicated by the company, making a personal canvass of every farm house at least twice a year, or oftener, if advisable; having no other occupation, and selling or handling no other goods whatever; to furnish and maintain at my own expense a suitable team; to pay transportation charges on the goods shipped to me; to begin work as soon as practicable after goods are received and to work continuously at the agency as far as weather and health will permit, observing such instructions in regard to the conduct of the business as may be given me by the company from time to time; to pay all of my expenses on the road and stand the loss, if any, of breakage and of accounts made by me with customers; to make regular and satisfactory reports and pay for the goods furnished me according to one or the other of the methods of payment provided for on the back of the contract; to terminate my services upon written notice to do so in case of my violation of this contract or in the event of my failure to do a satisfactory business under this agreement; to return to the medical company, by prepaid freight, all goods furnished by it in my possession at the time I quit work, receiving credit for the same as provided for on the face of this contract, and to immediately pay in cash any balance that I may be then owing the company according to its books. (Signed) Joe Clark, Traveling Salesman."

A second agreement was entered into between the parties, which was also made an exhibit to the complaint and which reads as follows:

"This agreement, made at Winona, Minnesota, U.S. A., this 1st day of December, A. D. 1909, between The J. R. Watkins Medical Company, a corporation, hereinafter called the Company, party of the first part, and Joe Clark, of Batesville, Ark., party of the second part,

"Witnesseth That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the Company promises and agrees to sell and deliver to the party of the second part, free on board cars, at Winona Minnesota, or at its option, at any of its regular places of shipment, any and all medicines, extracts and other articles manufactured or sold, or which may hereafter be manufactured or sold by it at the usual and customary wholesale prices, as shown by the Company's wholesale printed price list, as the party of the second part may reasonably require for sale by him at the regular retail prices from time to time, from the date hereof until the first day of March, 1911, when this agreement shall terminate; in the following described territory, excepting the incorporated municipalities therein located, towit: In the State of Arkansas, Independence County.

"In consideration of the sale and delivery to him free on board cars at Winona, Minnesota, or other shipping point as above mentioned by said Company, of the medicines, extracts and other articles manufactured or sold by it, in such reasonable quantities as he may require for sale in said territory at the regular retail prices as hereinbefore provided, the party of the second part promises and agrees, as soon as practicable after said medicines, extracts and other articles are received, to devote the whole of his time and attention to making a diligent, continuous and personal canvass of said territory, and to visit every farm house therein at least twice a year, at his own cost and expense and provide a good...