J. R. Watkins Co. v. Beyer
| Decision Date | 29 April 1930 |
| Citation | 203 Wis. 397,230 N.W. 615 |
| Parties | J. R. WATKINS CO. v. BEYER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Price County; G. N. Risjord, Circuit Judge.
Action by the J. R. Watkins Company, a foreign corporation, against Carl G. Beyer. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]
Reversed, with directions.
Action commenced November 29, 1924; judgment entered August 24, 1928. Defendant appeals.
The suit is brought against the defendant as guarantor of the performance by a salesman of his contract with the plaintiff. The salesman is dead. A coguarantor of defendant is also dead. The facts, so far as material to the disposition of the case, are as follows: The plaintiff is a manufacturer of medicines and sells its product through procuring peddlers to enter into a printed form contract requiring them to buy its products and offer them for sale in designated territory. In 1922 one of the company's such peddlers, Cronce, sold out his business to Menning, who thereupon entered into one of its such contracts with plaintiff. Cronce's contract required the company to take back his stock and allow him wholesale prices therefor on termination of his contract. He had stock valued at such prices at $1,187, and was indebted to the company in excess of that sum. It was arranged among the company, Cronce, and Menning that, instead of Cronce's getting credit for the value of his stock by returning it to the company, Menning should take over the stock, assume payment of its wholesale value to the company, and the company should credit Cronce's account with its such value. This arrangement was carried out, and a charge of $1,187 was made against Menning on his merchandise account with the company.
By the contract entered into at this time by the company and Menning, the company agreed to sell Menning until March, 1923, such of its products at wholesale prices as he might order for sale in the stipulated territory and to take back on termination of the contract at wholesale prices such of its products as Menning might have on hand, and Menning agreed to pay for goods so ordered at wholesale prices. At the termination of this contract, a new contract for another year was entered into between the company and Menning, of which the defendant guaranteed performance, and which is the contract in suit. At this time Menning was indebted to the company on account in the sum of $1,794.90, which included the excess of the price of goods purchased over his payments and the $1,187 for the goods taken over from Cronce. The new contract contained, in addition to the provisions in the first contract above mentioned, a promise by Menning to pay during the term of the agreement in amounts satisfactory to the company the indebtedness then due and to pay at termination of the contract any balance then due on his account, and extended the time of payment of the accrued debt accordingly. The material terms of the guaranty signed by the defendant are as follows:
“In consideration of one dollar to us (the guarantors) in hand paid by The J. R. Watkins Company, the receipt whereof is hereby acknowledged, * * * and the sale and delivery to * * * (Menning) of goods * * * and the extension of time of payment of the indebtedness now due from him (Menning) to the company * * * the sureties * * * do hereby * * * jointly, severally and unconditionally promise, agree and guarantee the full and complete payment of said indebtedness, the amount of which is now written in said agreement, or if not, we hereby expressly authorize the amount of said indebtedness to be written therein, and jointly, severally and unconditionally promise to pay for said goods * * * in the manner in said agreement provided.”
During the term of this contract Menning's payments on account were applied by the company on his purchases and exceeded the amount thereof, and at termination of the contract the excess was credited on his account, which after the credit amounted to $1,670.80. The contract itself was signed by the company and sent to Menning, with particular directions to him “to obtain the signatures of two sureties” after signing it himself.
The case was tried to a jury, who by...
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