J. R. Watkins Co. v. Rich

• Citation: 235 N.W. 845,254 Mich. 82
• Decision Date: 07 April 1931
• Docket Number: No. 166.,166.
• Parties: J. R. WATKINS CO. v. RICH et al.
• Court: Supreme Court of Michigan

254 Mich. 82

235 N.W. 845

J. R. WATKINS CO.

v.RICH et al.

No. 166.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Ionia County; Royal A. Hawley, Judge.

Action by the J. R. Watkins Company, a foreign corporation, against Walter E. Rich and others. To review a judgment in favor of part of defendants, plaintiff brings error.

Affirmed.

Argued before the Entire Bench.

Eldred & Gemuend, of Ionia, for appellant.

Watt & Colwell, of Ionia, for appellees.

FEAD, J.

The action is against Rich as principal and the other defendants as his sureties. Judgment ran against Rich, but in favor of the sureties, and plaintiff reviews. Trial was had before the court without a jury. No exceptions to the findings were seasonably filed and the judgment stands if sustained by the findings. Gervickes v. Assurance Co., 222 Mich. 103, 192 N. W. 654.

Plaintiff sells merchandise through salesmen, who buy it on credit and solicit business and deliver goods in allotted territory. Rich had contracts with plaintiff continuously since 1924 and had become indebted to it in the sum of $715.30. The contract at bar was dated December 31, 1927, and gave Rich the right to purchase and sell until March 1, 1929. The suretyship agreement obligated the sureties to pay the old debt and future charges at the time, place, and manner provided in the contract. The contract provided that payment of the old debt should be from time to time during its term in amounts satisfactory to plaintiff, and that future charges should be paid on expiration or termination of the agreement. The practice was to make periodical or occasional payments.

The contract was sent to Rich on December 31st for execution. He returned it, signed by some of the sureties. It was sent back to him two or three times for more sureties and was not finally executed and delivered to plaintiff until on or about May 8, 1928. Goods were purchased at intervals during the next month and some payments made, but not sufficient to equal the charges. The summer was the best business season.

On June 8, 1928, plaintiff, without prior demand for payments on the old or new debt or intimation of dissatisfaction in any respect, notified all the defendants that the contract was terminated and the whole debt due and payable. It claimed the right to prematurely end the contract under the provision: ‘And it is further mutually agreed that either of the parties hereto may terminate this agreement at any time by giving the other party notice thereof in writing by mail, and any indebtedness then owing by either party to the other shall thereupon be and become immediately due and payable.’

The court found that the purpose of the sureties in their undertaking was to aid Rich to obtain the business for a new full term in which to pay his debts; that they would not have executed it if they had known such opportunity would be arbitrarily refused him; that during the winter Rich had been in poor health, unable to attend to business, the roads were in bad condition so it was impracticable to travel until May; and that he undertook his campaign for business as soon as the contract had been accepted. The court further found: ‘The plaintiff company...