Furst & Thomas v. Elliott

• Decision Date: 18 March 1936
• Docket Number: 6255
• Citation: 56 P.2d 1064,56 Idaho 491
• Court: Idaho Supreme Court
• Parties: FURST & THOMAS, a Copartnership Composed of FRANK E. FURST and FRED G. THOMAS, Respondent, v. E. G. ELLIOTT, as Administrator With the Will Annexed of the Estate of ALICE J. CORTNER, Deceased, Appellant

56 P.2d 1064

56 Idaho 491

FURST & THOMAS, a Copartnership Composed of FRANK E. FURST and FRED G. THOMAS, Respondent, v. E. G. ELLIOTT, as Administrator With the Will Annexed of the Estate of ALICE J. CORTNER, Deceased, Appellant

No. 6255

Supreme Court of Idaho

March 18, 1936

GUARANTY - CONTRACTS - CONSTRUCTION - PAYMENT - CONDITIONS - PLEADING-"PROCEEDS"-FOREIGN STATUTES, PLEADING OF-DEPOSITION, SUPPRESSION OF-SUFFICIENCY OF CLAIM AGAINST ESTATE.

1. If contract provides for payment only from specific fund creditor must allege and prove existence thereof.

2. Contract being set out in haec verba, its legal effect need not be pleaded.

3. Complaint is not generally demurrable if stating any cause of action putting defendant on his defense.

4. Wholesalers' complaint on guaranty of payment for products sold on credit to dealer required by contract to pay therefor from proceeds of his business held not subject to general demurrer because not alleging existence of any proceeds; word "proceeds" being equivocal and general term not necessarily meaning money, and usually necessitating resort to context and subject matter to determine meaning.

5. Wholesalers' complaint on guaranty of payment for products sold to dealer on credit held not deficient nor generally demurrable because not alleging performance under contract promising advice to dealer in building up business and providing that nothing contained in such advice should be construed as modifying contract.

6. Insufficiency of complaint because stating no cause of action may be urged at any time.

7. In wholesalers' action on guaranty of payment for products sold to dealer on credit, contention that payment was due only from proceeds of dealer's business held untenable where answer did not allege absence of proceeds, and where there was evidence that there were proceeds, and that neither guarantor nor dealer understood contract to be limited to payment therefrom.

8. Party suing on contract providing for construction thereof according to foreign law need not plead or prove such law unless relying thereon.

9. Respecting suppression of deposition because allegedly participated in by unauthorized stranger, who attempted to stipulate that notary might be out of room when deposition was taken, record, which did not disclose that notary was out of room, held to show no prejudicial conduct; notary's certificate being sufficient to authenticate deposition.

10. Guarantee, not relying on foreign law, need not incorporate such law in claim filed against guarantor's estate on guaranty providing for construction thereof according to foreign law.

11. Claim against estate need not state all facts with precision required in complaint, it being sufficient to indicate nature and amount of demand in manner permitting executor and probate judge to act advisedly thereon.

12. Guarantee's claim against guarantor's estate showing amount of principal's indebtedness for merchandise and accompanied by copy of merchandising agreement, guaranty and account held sufficient in form, and was not contingent since agreement definitely fixed guarantor's liability as of two months after termination of contract.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Suit on contract of guaranty. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

S.D. Fairchild, for Appellant.

Where a contract provides for payment out of a particular fund or from a designated source, the existence of such fund or source must be plead and proved. (Thompson v. Bradbury, 5 Idaho 760, 51 P. 758; Bagley v. Cohen, 5 Cal. Unrep. 783, 50 P. 4; Pegg v. Olson, 31 Wyo. 96, 223 P. 223.)

Where a contract is by its expressed terms to be construed by the laws of a particular state, the law of that state must be plead and proved. (Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421, 64 Am. St. 715, 36 L. R. A. 271; Wharton on Conflict of Laws, vol. 2, p. 920; Wayman v. Southard, 10 Wheat. (U. S.) 1, 6 L.Ed. 253, 264.)

A deposition the taking of which is participated in by a stranger or an unauthorized person cannot be admitted in evidence against a party not participating therein. ( Pratt v. Battles, 34 Vt. 391.)

Martin & Martin, for Respondent.

By its terms, when the contract was terminated by the notice given by the plaintiff on July 14, 1931, the amount owing by Mearl M. Cortner became due and payable two months thereafter, and the provision for paying from the proceeds of sales made by Mearl M. Cortner was at an end. (Messinger v. Cox, 33 Idaho 363, 366, 194 P. 473.)

In the absence of pleading and proof as to what the laws are in a sister state, upon any question, the court will assume the laws of such state are the same as the laws of this state. ( Cummings v. Lowe, 52 Idaho 1, 5, 10 P.2d 1059; Mechanics & Metals Nat. Bank v. Pingree, 40 Idaho 118, 129, 232 P. 5.)

GIVENS, C. J. Holden and Ailshie, JJ., concur. Budge, J., did not participate. Morgan, J., did not sit with the court nor participate in the opinion.

OPINION

GIVENS, C. J.

February 11, 1931, Mearl M. Cortner entered into the following contract with respondent to act as dealer of its products in the vicinity of Oroville, California, and to guarantee his payments for goods sold him on credit the appended guarantee contract was executed by his mother:

"SALES AGREEMENT.

"This agreement made and entered into at Freeport, Illinois, by and between Frank E. Furst and Fred G. Thomas, co-partners, doing business under the name of FURST & THOMAS of Freeport Illinois, and Mearl M. Cortner of Oroville, California hereinafter called the Dealer witnesseth:

"That, whereas the aforesaid Dealer wishes to engage in the business of retailing the products handled by Furst & Thomas, buying from them on credit, and agrees to pay Furst & Thomas at their office in Freeport, Illinois, their regular wholesale prices for all products bought from them, in installments satisfactory to Furst & Thomas out of the proceeds of his business until his account is balanced, therefore,

"Furst & Thomas agree, upon acceptance of this agreement, to sell to the said Dealer their products on credit at their regular wholesale prices, f. o. b. Freeport, Ill., or at their option their nearest Branch Warehouse, unless prevented by fires, strikes, accidents or other causes beyond their control, but it is expressly understood and agreed that Furst & Thomas shall have the right to limit the amount of credit to be extended to the said Dealer and to refuse to fill his orders in whole or in part if in their judgment his payments on account are not satisfactory. If he remits cash with order he shall receive a discount of five percent (5%) from their current wholesale prices if his account is balanced. 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.

"To assist the Dealer in building up a profitable business, Furst & Thomas agree to give him advice and suggestions based on their experience and on the methods of other successful Dealers retailing their products in a similar way, but it is expressly understood and agreed that nothing contained in such advice and suggestions shall be binding upon the Dealer nor shall be construed as in any way altering or modifying the terms of this agreement.

"Either party shall have the right to terminate this agreement by giving written notice to the other party and upon its termination from any cause by either party the Dealer agrees to pay within two months the balance due Furst & Thomas on account; provided that if the Dealer fails to make regular remittances or attempts to avoid settlement of his account the balance shall become immediately due and payable at the option of Furst & Thomas. If the said Dealer wishes to sell back his stock of products he may ship them to Furst & Thomas to point designated by them, transportation charges prepaid promptly after termination of this agreement, and Furst & Thomas agree to pay him for such products (sample cases and discontinued products excepted) when received by them in good condition, in original, unopened bottles and packages, their current wholesale price but not more than the price originally charged the said Dealer for such products, less 5% to cover the cost of checking, handling and putting the products back into stock and if on final accounting any balance is due the Dealer to pay it promptly.

"It is expressly understood and agreed between the parties that this agreement as signed by them constitutes the sole and entire agreement between them and no modification of this agreement shall be binding unless in writing and signed by all parties hereto.

"It is subject to acceptance by Furst & Thomas at their home office in Freeport, Illinois and shall be construed as an Illinois contract. When so accepted it shall immediately be in force and effect and unless sooner terminated shall expire December 31, 1934.

"Dealer Sign Here in Ink MEARL M. CORTNER.

"The undersigned sureties, having acquainted ourselves with the terms and conditions of the above agreement in consideration of the payment of $ 1.00, receipt whereof is hereby acknowledged, and in further consideration of Furst & Thomas extending credit to the above named Dealer do jointly and severally guarantee payment to Furst & Thomas for all products sold by them on credit to him whether such products are for resale, for advertising or for other purposes, hereby waiving acceptance and all notice, and we further agree that the written acknowledgment...