Furst and Thomas v. Rowland

• Decision Date: 12 February 1934
• Docket Number: 4-3294
• Citation: 68 S.W.2d 451,188 Ark. 804
• Parties: FURST AND THOMAS v. ROWLAND
• Court: Arkansas Supreme Court

68 S.W.2d 451

188 Ark. 804

FURST AND THOMAS v. ROWLAND

4-3294

Supreme Court of Arkansas

February 12, 1934

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

STATEMENT BY THE COURT.

Appellants brought this suit in the Pulaski Circuit Court against C. B Rowland, as principal, and P. A. Rowland and W. A. Cravens as sureties, to recover for goods, wares and merchandise delivered by appellants to C. B. Rowland pursuant to a certain dealer's contract theretofore executed, the performance of which was alleged to have been guaranteed by appellees, the sureties therein designated. By the terms of the dealer's contract, appellants agreed to deliver to C B. Rowland, at current wholesale prices, their manufactured products as ordered by the principal, so long as the account was in a satisfactory condition. C. B. Rowland, the principal, agreed to pay the wholesale prices, less discounts, to appellants. Appellants reserved the right to limit the amount of credit extended to the principal, or to refuse to fill orders in whole or in part, if, in the judgment of appellant, the account was in an unsatisfactory condition. It was further stipulated that, upon the termination of the contract, the principal was to have the privilege of returning to appellant unsold goods on hand. The contract also contained the following stipulation: "The dealer, as a matter of good faith and to show what the receipts of his business are from week to week, agrees to send Furst & Thomas each week an itemized record of his business on forms provided for that purpose by them."

On the trial of the case, it was stipulated between the parties that C. B. Rowland was indebted to appellants under said contract in the sum of $ 1,173.71, and judgment was rendered against C. B. Rowland for said amount, and no appeal has been prosecuted therefrom.

The suit was defended by the sureties on C. B. Rowland's contract, upon the theory that the principal, C. B. Rowland had failed and neglected to make weekly reports to appellants, as provided for in the contract, and that appellants had acquiesced therein, and had given no notice to the sureties of such omissions.

The testimony was to the effect that C. B. Rowland, the principal, sometimes neglected to make the weekly reports for six or eight weeks, and would then make reports covering the whole neglected period. During the period of neglect, appellants continuously insisted that the reports be made by the principal, but the sureties were never notified of these defaults and neglects by the principal.

Appellant requested the court to direct a verdict in their behalf, and requested no other instructions. This peremptory demand was refused. The court thereupon gave to the jury instruction No. 2, which reads as follows:

"The jury is instructed that the dealer's contract, executed between defendant, C. B. Rowland, and plaintiffs, provided in part as follows: 'The dealer, as a matter of good faith and to show what the receipts of his business are from week to week, agrees to send Furst & Thomas each week an itemized record of his business on forms provided for that purpose by them.' If you find from the evidence in this case that defendant, C. B. Rowland, failed to make such weekly reports to plaintiff...