Gardner v. Wiley

• Decision Date: 30 January 1905
• Citation: 46 Or. 96,79 P. 341
• Parties: GARDNER et al. v. WILEY et al.
• Court: Oregon Supreme Court

79 P. 341

46 Or. 96

GARDNER et al. v. WILEY et al.

Supreme Court of Oregon

January 30, 1905

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Jr. Judge.

Bill of interpleader bye Martin Gardner and another, partners as Gardner Bros., against Charles S. Wiley and the Mihalovitch-Fletcher Company. From the decree rendered, the Mihalovitch-Fletcher Company appeals. Affirmed.

N.D. Simon, for appellant.

J Couch Flanders, for respondents.

BEAN J.

This is a bill of interpleader filed by Gardner Bros. against Charles S. Wiley and the Mihalovitch-Fletcher Company to have determined the conflicting claims of the defendants to the amount due on certain promissory notes given by the plaintiffs to the G. Winehill Anti-Trust Distilling Company and subsequently transferred by Winehill to one Rosenberg and by Rosenberg to Wiley. The facts are that in June, 1902, Winehill, who had previously been employed by the Crystal Springs Distilling Company, desiring to make some change in his business arrangements, entered into negotiations with the Mihalovitch-Fletcher Company, wholesale liquor dealers of Cincinnati, Ohio, for the handling of their goods in the states of Oregon, Washington, Idaho, Montana, and Wyoming. After satisfactory arrangements had been made, the Mihalovitch-Fletcher Company suggested that Winehill do business under the name of George Winehill & Co.; but, as he had previously been working for a wholesale house belonging to the trust, he preferred the name of the Anti-Trust Distilling Company, and that was agreed upon by the parties. They thereupon entered into a written agreement designating the parties thereto as Mihalovitch-Fletcher Company, party of the first part, and the Anti-Trust Distilling Company, party of the second part. By the terms of this agreement the Mihalovitch-Fletcher Company agreed to sell to the Anti-Trust Distilling Company all the line of goods they manufactured or had for sale at certain prices, to keep the books of the distilling company for the nominal charge of $10 a month, to fill and ship orders as directed, bill out all goods, attend to all correspondence, and draw on customers as accounts became due. The distilling company was to give each month a note due four months after date for all goods ordered by it from the Mihalovitch-Fletcher Company during the previous month, and remit to the latter all collections from customers; the amount thereof to be credited on the notes. If the collections were not sufficient to pay the notes of the distilling company at maturity, a further extension of two months was to be given, but the extension notes were to be paid in full when due, without further delay. If the Mihalovitch-Fletcher Company had to buy goods in the market to fill orders, it was to receive 10 per cent. profit thereon. The distilling company was to take out and pay for wholesale and retail licenses, hire and direct all salesmen, and pass on all orders. Such orders were to be filled by the Mihalovitch-Fletcher Company if it found them satisfactory. A monthly statement was to be rendered by the Mihalovitch-Fletcher Company to the distilling company of all sales and collections, and it was to extend to the distilling company a credit of $20,000, should the company use proper judgment in selling goods to responsible parties. The distilling company was to take out an insurance policy on its accounts, so as to provide against loss, and all accounts for goods sold were to belong to the Mihalovitch-Fletcher Company; the proceeds to be applied in payment of the bills and notes of the distilling company. This contract was signed, "G. Winehill for the Anti-Trust Distilling Company," and "Mihalovitch-Fletcher Company." After the making of the contract, Winehill traveled and sold goods under the name of the Anti-Trust Distilling Company, or G. Winehill Anti-Trust Distilling Company, within the territory mentioned, to whomsoever he pleased, and at such prices as he desired; sending his orders to the Anti-Trust Distilling Company, at Cincinnati, where they were filled from the goods of the Mihalovitch-Fletcher Company, but billed to the customers in the name of the Anti-Trust Distilling Company. On the 1st of each month the Mihalovitch-Fletcher Company sent a statement or bill for goods previously ordered to Winehill, who made, executed, and delivered to them a...