Furst v. Scally

• Decision Date: 03 December 1923
• Docket Number: No. 14712.,14712.
• Citation: 256 S.W. 158
• Parties: FURST et al. v. SCALLY et al.
• Court: Missouri Court of Appeals

256 S.W. 158

FURST et al. v. SCALLY et al.

No. 14712.

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially reported."

Action by Frank E. Furst and another, copartners doing business under the firm name of Furst & Thomas against John F. Scally and others, in which defendant M. F. Kaler defaulted. Judgment for plaintiffs, and defendant named and George Wittlinger appeal. Reversed and remanded for new trial.

Bohling & Bohling, of Sedalia, for appellants.

W. D. Steele, of Sedalia, for respondents.

ARNOLD, J.

This is an action to recover the sum of 8846.78 from defendants as guarantors of the faithful performance of a contract by one C. R. Dunlap, as principal.

Plaintiffs, Frank E. Furst and Fred G. Thomas, are partners located at Freeport, Ill., and sell family medicines, toilet articles, veterinary preparations, and other remedies for man and beast. They enter into contracts with agents, or salesmen, to purchase these goods to be sold to the public by such agents, or salesmen. On February 18, 1015, such a contract in writing was entered into between them and one C. H. Dunlap of Sedalia, Mo., providing, in part, as follows:

"Furst & Thomas also agree to furnish the salesman, free of charge or board cars at Freeport, Illinois, a reasonable amount of advertising matter, order blanks, return envelopes, and other blanks for his use in conducting his business; also to give him free advice and suggestions through bulletins, booklets and letters as to his best methods of selling to consumers the goods purchased by him under this contract, but it is expressly agreed that nothing contained in such advice and suggestions shall be binding upon the salesman nor shall be construed as in any way modifying the terms of this contract.

"The salesman in consideration of the extension of credit to him under this contract, agrees to devote his entire time and energy to the sale of goods purchased from Furst & Thomas and to conduct his business in a manner satisfactory to them. He further agrees to pay Furst & Thomas the regular wholesale prices of such goods furnished to him on credit under this contract in the following manner, to wit, on the installment plan, by paying to said Furst & Thomas in cash each week, one-half or more of the receipts produced during said week by the sale or disposal of goods purchased on credit from them; provided, that by paying his account in full on or before the tenth day of each month, said salesman shall receive a discount of 3 per cent.; if he remits cash in full with each order, he shall receive a discount of 5 per cent. from their current wholesale prices.

"As a matter of good faith and to show what the receipts of his business are from week to week, he agrees to send to Furst & Thomas each week a correct and fully itemized record of his business on forms provided for that purpose by them."

Further, the contract provides:

"It is expressly understood and agreed between the parties that this contract as signed by them constitutes the sole and entire agreement between them and no modification of this contract, written or verbal, shall be binding upon either of the parties unless in writing signed by them, and attached hereto."

In addition to executing this form of contract, salesmen were required to furnish guarantors for the faithful performance of the contract on their part. Such a contract was required of Dunlap and is the one which forms the basis of this suit and is attached to the contract of employment. Said guarantors' agreement reads as follows:

"For and in consideration of the payment of $1.00, the receipt whereof is hereby acknowledged and the extension of credit to the above named salesman by Furst & Thomas, we, the undersigned, jointly and severally guarantee to them, the faithful performance of this contract by him and the payment for goods furnished to him on credit, as provided by the above agreement, waiving acceptance of this guaranty and all notice, and we agree that the written acknowledgment of his account by the said salesman shall bind us, and that any extension of time shall not release us from liability thereon, and we further agree that upon six months from the termination of the above agreement by either party and the nonpayment of his account by said salesman, this guaranty shall become absolute as to the amount due from him and upon demand, we promise to pay the amount due Furst & Thomas without any proceeding being taken by them against the said salesman."

The signers to this agreement were John F. Scally, grocer, M. F. Kaler, assistant fire chief, and George Wittlinger, baker, all of Sedalia, Mo.

The petition alleges there is a balance of $846.78 due plaintiffs from Dunlap, and that defendants jointly and severally guaranteed the faithful performance by Dunlap of his contract; that the contract of guaranty provides that upon six months from the termination of the contract between Dunlap and plaintiffs, and the nonpayment of his account, the guaranty shall become absolute as to the amount due from Dunlap. Attached to the petition as an exhibit is an account of sales to Dunlap by plaintiffs, consisting of 67 items, commencing March 13, 1915, and ending March 12, 1919; the total amounts thereof being $2,540.78. Total credits against this amount are shown, $1,694, and judgment is prayed for the balance of $846.78.

The answer admits the execution of the contract of guaranty set out in the petition; denies that plaintiffs ever sold or delivered the goods mentioned in the petition, or any part thereof, to C. lb. Dunlap, under or by virtue of the contract set out in the petition but alleges the facts to be that said goods were sold to said Dunlap under the express condition, understanding, direction, and command of plaintiffs that the same were sold to him as plaintiffs' agent and salesman to be disposed of by Dunlap under plaintiffs' advice, instruction, and command; that plaintiffs did advise, instruct, and command the said Dunlap to dispose of the goods by leaving them with persons who would permit him to do so, with permission for such persons to use large quantities thereof...