G.B. Small Radio Co. v. Southwest General Elec. Co.
| Decision Date | 26 November 1929 |
| Docket Number | 18769. |
| Citation | 285 P. 17,141 Okla. 282,1929 OK 510 |
| Parties | G. B. SMALL RADIO CO. et al. v. SOUTHWEST GENERAL ELECTRIC CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 4, 1930.
Application to File Second Petition for Rehearing Denied Feb. 25, 1930.
Syllabus by the Court.
One who, by written instrument, guarantees to a jobber payment of bills for merchandise sold by him to a retailer, may be included as a party defendant along with said retailer in an action by said jobber as plaintiff to recover for such merchandise and upon such guaranty.
For the purpose of a demurrer, the truth of all facts properly pleaded is admitted, and all inferences which can reasonably be drawn are indulged in behalf of the pleading.
Instructions must be considered as a whole and construed together, and while a single instruction, standing alone, may be subject to criticism, yet, where the instructions, when taken together in their entirety, fairly submit the issues to the jury, the judgment of the trial court on the verdict of the jury will not be disturbed. It is not necessary that any particular paragraph of the instructions should contain all the law of the case; it is sufficient if, when taken together, and considered as a whole, they fairly present the law applicable to the issues and pleadings upon which competent evidence has been introduced.
In an action at law tried before a jury, where there is evidence reasonably tending to support the verdict and judgment and where the instructions of the court are without substantial error, said verdict and judgment will not be disturbed on appeal.
Record examined, and there is evidence in the cause reasonably supporting the verdict and judgment.
Commissioners' Opinion, Division No. 1.
Appeal from Court of Common Pleas, Tulsa County; Saul A. Yager Judge.
Suit by the Southwest General Electric Company against the G. B Small Radio Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.
A. A Small and G. B. Small, both of Tulsa, for plaintiffs in error.
Mason, Honnold, Harper & Williams, of Tulsa, for defendant in error.
Defendant in error, Southwest General Electric Company, brought suit against G. B. Small Radio Company and G. B. Small upon open account, and against A. A. Small, who, by written memorandum, guaranteed the payment of the account sued on. The parties will be referred to as they appeared in the trial court.
The petition, in the usual form, alleged that plaintiff sold to defendant G. B. Small Radio Company, during October, November, and December, 1925, and January and February, 1926, certain merchandise reflected by a duly verified itemized account attached to and made a part of the petition disclosing the balance due to plaintiff to be $1,117.04. It was also alleged that, upon delivery of each item shown on said account, an invoice was rendered, and that, on the 1st of each and every month after the said account was opened, until April 1, 1926, a full statement of same, showing the balance due and all debits and credits thereon, was rendered to said G. B. Small and the radio company, who retained such statements rendered without protest or objection, whereby same became an account stated. It was also alleged that on October 30, 1925, A. A. Small signed a written guaranty of payment of said account to plaintiff, and a copy of such guaranty was attached to and also made a part of the petition. Separate answers were filed by the radio company and by A. A. Small.
The answers of the company and G. B. Small consist of general denial and plea that plaintiff failed to deliver certain goods ordered by said defendants, by reason whereof they were damaged in loss of profits which otherwise would have been made, also in the expense of certain advertisements of the goods, altogether amounting to $2,500, for which judgment is prayed. A. A. Small admits the execution of the guaranty agreement sued on, but says same was without consideration and that he cannot be sued until the controversy between his codefendant and plaintiff is determined.
Plaintiff's reply to these answers consists of general denial, and, among other things, alleges that plaintiff was not a manufacturer of said goods, but purchased same from factories, and that the demand for radio and radio parts greatly exceeded the supply; that defendants knew this; that it was an established custom of the trade for wholesalers to distribute among their customers such goods as they could obtain, and that, during the time mentioned in the cross-petition, no dealers in radios were receiving goods except in small quantities, and that all of this was known to defendants; that the damages claimed by defendants were speculative and uncertain, and were not in contemplation of the parties at the time the defendants ordered goods from plaintiff.
After a jury was impaneled, the attorney for A. A. Small objected "to the introduction of any evidence as to the liability of A. A. Small, until it shall be established, if it ever is established, that there is a liability from the defendant, the principal, G. B. Small, to the plaintiff in this case," and "until it has been established that he cannot respond." The court sustained the first part and overruled the latter part of this objection, to which defendants excepted.
Plaintiff introduced evidence tending to show that L. J. Locke was manager and Henry Albreicht assistant manager and in charge of the offices of plaintiff in Tulsa, and had been such since September, 1925; that the plaintiff's general offices were in Dallas, Tex., and that the company was a wholesaler of electrical supplies, radios, and accessories; that in the fall of 1925 G. B. Small was doing business in Tulsa under the name of G. B. Small Radio Company; that the account of G. B. Small Radio Company was kept in Tulsa, and that said Albreicht had supervision and personal knowledge of same, and that the account sued on, attached as Exhibit A to plaintiff's petition, is correct, and that the balance due thereon is $1,117.04; that the account was made up from the records in the Tulsa office, each purchase being represented by an invoice, copies of which were sent to purchaser on the day of purchase; that this account represents all sales made and all payments received, and that there was received from defendants no complaint that the said statements of account were incorrect; but that same were received and retained without protest. The orders for goods were usually oral, and, when received, were immediately sent to home office to be filled. The first order was early in October, and was for Radiola No. 25 and battery, and came to $130.91, which has been paid. Mr. Locke usually took the orders, and the goods were delivered by truck to purchaser, and receipt was taken upon each delivery. The next order was October 13th, and was for $36.45. There was paid on account on January 19, 1926, $500. The next order was October 14th, but was not filled in full, but goods of the value of $370.50 were shipped on that order. Plaintiff lacked three sets of filling the order. A number of orders enumerated were filled. On October 19th there was an order for two No. 30's and five No. 28's and ten No. 25's; a part only of the items was delivered. There was evidence also to the effect that no protest or complaint was made by defendants because of failure of plaintiff to promptly and fully deliver all goods ordered, and that plaintiff first learned that the radio company and G. B. Small claimed that they had been damaged when they filed their cross-petition. Proof tended to show that the radio 30's, although orders were taken by the salesmen, were not put out by the factory until in the spring of 1926, but that the manufacturer had been advertising them some time before that; that no one could purchase these until after February, 1926; that the 25's were hard to get; that the jobbers could not supply them because they could not get them; that this was discussed with G. B. Small, who simply wanted them as soon as he could get them; that, when taking orders, the said Small was informed as to the difficulty in securing deliveries; that there were not enough goods to supply the trade. Small was also informed that plaintiff could not count upon receiving these goods until they were actually in hand.
When the goods were received, they were divided out and prorated among those who had given orders for same.
The guaranty signed by Mr. A. A. Small was prepared by the treasurer of the company at Dallas, who mailed it to the Tulsa office to be signed by A. A. Small, the father of G. B. Small; that the local office and officers at Tulsa had no authority to extend credit. There was evidence by defendants that the Radiolas and supplies already ordered by them were not being received, and that the written guaranty was executed and delivered to plaintiff in order to assure and expedite delivery to them of the goods already ordered from plaintiff, and that this was the only consideration for execution of the guaranty.
On the part of plaintiff, the evidence indicated that, while they wished security to protect the account, the delay in delivering the goods was entirely due to plaintiff's inability to secure the supplies of Radiolas from the manufacturers; that not only plaintiff, but numerous others throughout the country who handled the same and similar products, were in just as unhappy situation about securing deliveries, and they were simply prorating the few sets actually delivered among their customers. It was testified to by defendants that plaintiff promised that back orders would be delivered some time during November following the execution of the guaranty, and that Mr. Locke plaintiff's...
To continue reading
Request your trial