Heinrich Chemical Co. v. Welch.

• Decision Date: 03 January 1928
• Docket Number: No. 15961.,15961.
• Citation: 300 S.W. 1001
• Parties: HEINRICH CHEMICAL CO. v. WELCH et al.
• Court: Missouri Court of Appeals

300 S.W. 1001

HEINRICH CHEMICAL CO. v. WELCH et al.

No. 15961.

Kansas City Court of Appeals. Missouri.

January 3, 1928.

Appeal from Circuit Court, Chariton County; J. E. Montgomery, Judge.

Action by the Heinrich Chemical Company against M. T. Welch and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John D. Taylor, of Keytesville, for appellants.

Roy McKittrick, of Salisbury, for respondent.

FRANK, C.

Action on two promissory notes executed by appellants to respondent on June 22, 1922, one for $1,185.97, the other for $1,125.70, and both bearing 6 par cent. interest per annum from date. The case was tried before the court without the aid of a jury and resulted in a finding and judgment for respondent for the amount due on said notes. After the usual preliminary steps, defendants appealed.

The facts giving rise to the execution of the notes sued on are substantially as follows:

Respondent is a foreign corporation, organized under the laws of the state of South Dakota, with a general office in Minneapolis Minn., and was engaged in the manufacture and sale of certain merchandise at wholesale. It had not complied with the foreign corporation laws of the state of Missouri, and was not licensed to do business in this state. One O. E. Law procured W. F. Meyer to enter into a contract with respondent, by the terms of which respondent agreed to sell and deliver to said Meyer at wholesale price f. o. b. cars at Minneapolis such of its manufactured articles as Meyer should from time to time order, for sale by said Meyer in Chariton county, Mo.

Meyer agreed in said contract to devote his entire time to the sale of said goods in Chariton county, to keep a record of all sales and collections made, and not later than Monday of each week report to respondent all sales and collections made. The contract provided that Meyer was to pay all transportation charges and selling expenses; that respondent was not to contribute to the expense of Meyer's business nor have any interest in accounts due him, or share in the profits or loss of said business; that the contract could be canceled by either party at any time by written notice deposited in the mails; that upon cancellation Meyer could return within 30 clays any merchandise which was in as good condition as when sold to him, and respondent was to repurchase them at invoice price and pay or credit Meyer therefor less delivery charges, if any; that nothing disposed of by Meyer or sold by him on time or otherwise could be returned or repurchased; that upon cancellation of the contract and return of goods, Meyer was to pay the full invoice price of everything purchased by him, less amounts previously paid. Before any merchandise was sold to Meyer under, this contract, respondent required him to furnish a bond guaranteeing the payment of any indebtedness he might incur to respondent under said contract. Meyer signed the contract and defendants L. Montgomery, S. C. Fordham, and M. T. Welch executed the bond or contract of guaranty, and both the contract and bond were sent to respondent at Minneapolis. The contract as signed by Meyer was in the form of a written proposal and respondent's acceptance was indorsed thereon at Minneapolis, Minn., on July 23, 1920. This bond guaranteed the payment of all indebtedness to, be incurred by Meyer under his contract with respondent. Immediately after the execution of the contract, Meyer purchased products manufactured by respondent, for the purpose of resale in Chariton county. Some of these purchases were made from respondent at Minneapolis, Minn., and the goods so purchased were delivered, to Meyer f. o. b. Minneapolis. Other purchases were made from O. E. Law, in Chariton county, Mo. The goods purchased from Law were in Law's possession in Chariton county, Mo., before Meyer bought them and were delivered to Meyer in said county. At one time Law sold and delivered to Meyer, in Chariton county, merchandise to the amount of $1,704.64. Before this merchandise was delivered to Meyer, a writing transferring such merchandise from Law to Meyer was sent to respondent. After receiving this transfer, respondent charged Meyer's account with the amount of the goods so transferred sent him the following invoice:

                              "Invoice
                                        "Date Oct. 31, 1921
                

"Heinrich Chemical Company, Inc., Minneapolis, Minn., Sold to Mr. W. F. Meyer, Brunswick, Mo. 3126.

                  Sept. 13, 1921. To bal. br. fwd................ $1,743 51
                  We charge your account with goods transferred
                    to you by O. E. Law, as per attached
                    invoice and transfer dated Oct
                    21, 1921......................................  1,704 64
                                                                  ___________
                                                                   $3,448 15"
                

Meyer testified that he received other goods from Law but in each instance a transfer was made out and sent to respondent before the goods were charged to him.

There Is evidence that Law was a retailer for respondent hi Chariton county. Mo., and that he also procured other persons to make contracts with respondent similar to the contract made by Meyer.

Meyer did not pay for the goods he purchased and respondent demanded payment from the defendants, who signed the contract of guaranty, but they failed to pay. Finally, W. S. Ongman a representative of respondent came to Brunswick, Mo., and negotiated a settlement with the guarantors. It was finally agreed that, if respondent would deduct $522 from the bill, guarantors would execute their notes to respondent covering the balance of the account. This was done, and the guarantors, M. T. Welch, S. C. Fordham and Lester Montgomery. executed the notes in suit, and defendant William Meyer, Sr., father of W. F. Meyer, signed said notes as surety.

Appellant's first, second, third, and fourth assignments of error complain of the court's action in refusing declarations of law requested by him.

No objection was made or exception saved to the court's action in refusing appellant's requested declarations of law. The action of the court in this regard is not reviewable where no exception thereto is saved. Montague Compressed Air Co. v. City of Fulton, 166 Mo. App. 11, 31, 148 S. W. 422; Harding v. Missouri Pacific Railway Co., 232 Mo. 444, 134 S. W. 641, Ann. Cas. 1912B, 1221; Straub v. Laclede Gaslight Co. (Mo. App.) 287 S. W. 1061, 1062.

The fifth and last assignment of error is that, under the law and the evidence, the judgment and finding of the court should have been for defendant.

The theory upon which this claim is made is set out in appellant's brief in the following language:

"Under all of the evidence it was clearly shown that Law was the agent for respondent; that the goods, the value of which is supposed to be...