Furst v. Shows

• Decision Date: 28 October 1926
• Docket Number: 4 Div. 255
• Citation: 110 So. 299,215 Ala. 133
• Parties: FURST et al. v. SHOWS et al.
• Court: Alabama Supreme Court

110 So. 299

215 Ala. 133

FURST et al. v. SHOWS et al.

4 Div. 255

Supreme Court of Alabama

October 28, 1926

Appeal from Circuit Court, Crenshaw County; A.E. Gamble, Judge.

Action by Frank E. Furst and another, partners doing business under the name of Furst & Thomas, against T.W. Shows and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Evidence as to whether buyer owned property and what profit he would make on sale was immaterial, in action against buyer's guarantors.

The contract sued on is as follows:

"This contract, made and entered into at Freeport, Ill this 27th day of January, 1919, by and between Frank E. Furst and Fred G. Thomas, copartners doing business under the name of Furst & Thomas, of Freeport, Ill., and D.O. Shows, of Luverne, Ala., hereinafter called the salesman, witnesseth:

"That upon acceptance of this contract, Furst & Thomas agree to thereafter, unless prevented by strikes, fires accidents, or other cause beyond their control, sell and deliver to the said salesman on board cars, at Freeport Ill., or at their option from their nearest branch warehouse, at their current wholesale prices, their products in reasonable quantities as ordered by him, so long as this contract is in force and his accounts are in a satisfactory condition. Furst & Thomas also agree to give the salesman free advice and suggestions through bulletins, booklets, and letters as to the 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 altering or modifying the terms of this contract.

"The salesman agrees to pay Furst & Thomas the regular wholesale price for all goods sold to him under this contract in the following manner, to wit: On the installment plan, by paying to said Furst & Thomas in cash each week a sum equal to not less than one-half his total cash sales and collections from such goods during said week; provided that the salesman may be required at the option of Furst & Thomas to pay not less than the wholesale price of certain products designated by them and sold by him for cash or collected for during said week; provided that, by paying his account in full on or before the 10th 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. Either party shall have the right to terminate this contract by giving written notice to the other party; provided that, if the sale or purchase of goods under this contract be permanently discontinued for any reason, it is thereby terminated, and, upon its termination from any cause by either party, the salesman agrees to settle within three months the balance due said Furst & Thomas on account; provided that the salesman shall have the privilege of returning promptly after termination of contract to Furst & Thomas, at Freeport, Ill., by prepaid freight, his stock of unsold goods, and for all goods so returned by the salesman in original, unopened bottles and packages, Furst & Thomas agree to allow credit at the price originally charged after deducting the cost of checking, handling, and putting such goods back into stock, and if on final accounting any balance is due the salesman to pay the same promptly.

This contract is subject to acceptance by Furst & Thomas at their home office in Freeport, Ill., and shall be in force and effect from date of shipment of the first order of goods to the salesman.

"Feb. 13, 1919.

"Salesman sign here in ink:

"[Signed] D.O. Shows.

"Accepted at Freeport, Ill.

"Furst & Thomas.

"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 payment of 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 hereon, and we further agree that, upon three 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.

"Guarantors sign here in ink:

"Name. Occupation. P.O. Address.

"T.W. Shows. Banker. Luverne, Ala.

"J.H. Shows. Farmer. Luverne, Ala."

The following charges were refused to plaintiffs:

"No. 26. I charge you, gentlemen of the jury, that, if you believe, from the evidence in this case, that the extracts which were sold by Furst & Thomas to D.O. Shows were sold by Furst & Thomas to D.O. Shows in another state and were shipped by Furst & Thomas from another state to D.O. Shows in the state of Alabama, then the sale of said extracts by Furst & Thomas to D.O. Shows constituted interstate commerce. And I further charge you that, if you believe from the evidence in this case that the said extracts which were sold by Furst & Thomas to D.O. Shows contained only the necessary quantity of alcohol to compound and preserve them for domestic use, then the sale of said extracts by Furst & Thomas to the said D.O. Shows was lawful, although you may further believe from the evidence in this case that the said D.O. Shows, after said extracts were received by him in the state of Alabama, sold said extracts in violation of the laws of the state of Alabama, unless you further believe from the evidence in this case that Furst & Thomas sold and shipped said extracts to D.O. Shows with notice or knowledge that the said D.O. Shows, after said extracts were received by him in the state of Alabama, would sell, or intended to sell, the said extracts in violation of the laws of the state of Alabama."

"No. 29. I charge you, gentlemen of the jury, that, if you believe from the evidence in this case that the extracts which were sold by Furst & Thomas to D.O. Shows contained only the necessary quantity of alcohol that was necessary to properly dissolve the flavoring oils and retain them in solution, then the sale of said extracts by Furst & Thomas to the said D.O. Shows was lawful, although you may further believe from the evidence in this case that, after said extracts were received by D.O. Shows, some persons bought some of the extracts from D.O. Shows and used same for beverage purposes and became drunk upon same, unless you further believe from the evidence that the said D.O. Shows sold the said extracts to said persons for beverage purposes, and unless you further believe from the evidence in this case that, at the time that Furst & Thomas sold said extracts to D.O. Shows, Furst & Thomas had notice or knowledge that the said D.O. Shows, after said extracts were received by him would sell, or intended to sell, the said extracts as intoxicating beverages. And I further charge you that the burden of proof is upon the defendants to reasonably satisfy you by the evidence in this case that the said D.O. Shows sold said extracts to said persons as intoxicating beverages. And I further charge you that the burden of proof is upon the defendants to reasonably satisfy you by the evidence that, at the time that Furst & Thomas sold said extracts to D.O. Shows, they had notice that the said D.O. Shows, after said extracts were received by him, would sell, or intended to sell, the said extracts as intoxicating beverages. And I further charge you that if you are not reasonably satisfied by the evidence in this case either that D.O. Shows sold said extracts to said persons as intoxicating beverages or that Furst & Thomas, at the time they sold said extracts to D.O. Shows, had notice or knowledge that the said D.O. Shows, after said extracts were received by him, would sell, or intended to sell, the said extracts as intoxicating beverages, then the sale of the said extracts by Furst & Thomas to D.O. Shows was lawful."

Emmet S. Thigpen, of Andalusia, and Calvin Poole, of Greenville, for appellants.

Frank B. Bricken, of Luverne, and Powell & Hamilton, of Greenville, for appellees.

GARDNER J.

This suit by appellants against appellees is based upon a contract of guaranty, executed by T.W. and J.H. Shows, guaranteeing to the plaintiffs the payment for goods sold by plaintiffs to one D.O. Shows, pursuant to a written contract entered into between plaintiffs and D.O. Shows, and on which sheet of paper was also the contract of guaranty here sued upon. In this latter contract acceptance of guaranty and all notice were waived, and a further stipulation that upon expiration of three months from the termination of the contract with D.O. Shows, and nonpayment of his account, the guaranty should become absolute. The contract of guaranty is reproduced in the report of the case, and appears to be of similar import to that considered in the recent case of Huckaby v. McConnon, 213 Ala. 631, 105 So. 886.

The D.O. Shows contract, with the guaranty contract thereon duly signed, was received and accepted by plaintiffs at Freeport Ill., on February 13, 1919. The contract with D.O. Shows was terminated, pursuant to...