J.R. Watkins Co. v. Salyers

• Decision Date: 16 November 1943
• Docket Number: No. 27432.,27432.
• Citation: 51 N.E.2d 574,384 Ill. 369
• Parties: J. R. WATKINS CO. v. SALYERS.
• Court: Illinois Supreme Court

384 Ill. 369

51 N.E.2d 574

J. R. WATKINS CO.

v.SALYERS.

No. 27432.

Supreme Court of Illinois.

Nov. 16, 1943.

Suit by the J. R. Watkins Company against Roland Salyers to recover from defendant as a guarantor on a contract of sale. Judgment for plaintiff, and defendant appealed to the Appellate Court and the judgment was affirmed, 319 Ill.App. 369, 49 N.E.2d 288. A certificate of importance was allowed by the Appellate Court to the Supreme Court.

Affirmed.Appeal from Appellate Court, Third District, on Appeal from Piatt County Court; Burl A. Edie, Judge.

Dwight H. Doss, of Monticello, for appellant.

N. E. Hutson, of Monticello, for appellee.

GUNN, Justice.

Plaintiff brought action in the county court of Piatt county for the unpaid portion of the sale price of goods delivered under a written contract between the plaintiff and the purchaser. The defendant was the guarantor of the payment on the part of the buyer under said contract. Defendant filed an answer setting up several defenses, which, upon motion of plaintiff was stricken as insufficient in form and substance. Defendant elected to abide by his answer, and was thereupon defaulted and judgment entered in favor of plaintiff. The judgment of the county court was affirmed by the Appellate Court for the Third District, and a certificate of importance was allowed by the Appellate Court to this court.

The plaintiff is a foreign corporation licensed to do business in this State. February 15, 1939, it entered into a written contract with James D. Price, who is designated as purchaser. It agreed to sell and deliver to the purchaser f.o.b. cars Winona, Minnesota, such goods as purchaser may require for sale from that date until December 1, 1940. The goods were to be used by Price in his then place of business or elsewhere, provided the buyer gives notice in writing of such other location. The buyer agreed to pay for such goods, and also the transportation charges, and agreed to the time and manner of payment. The contract also provided if the purchaser failed to pay, as agreed, the plaintiff might limit the sales agreed to be made, or suspend the same, or require cash to be paid with each order, until the purchaser's indebtedness was paid. There were other provisions of the contract including one authorizing the purchaser to return goods and apply them upon the unpaid purchase price, and a provision by which plaintiff agreed to repurchase goods, after the termination of the contract, in case they were in the same condition as when sold.

The defendant executed a guaranty in writing endorsed upon the same contract, in which he acknowledged the reading of the contract and assenting to its terms, and unconditionally promised and guaranteed to pay for the goods and articles, together with transportation charges, in the time, place and manner as provided in the contract, and waived any notice of acceptance of the agreement by the buyer, or notice of default or nonpayment, or of any notice required by statute to such purchaser. Goods were delivered under said contract to the buyer from the date thereof until August 25, 1939, and the last credit payment by buyer was made April 16, 1940.

In his second amended answer the defendant alleged four defenses: (1) That the contract shows upon its face that it was intended for an agency contract, and that the buyer could not legally sell any of the goods purchased without complying with the law regulating transient merchants, Ill.Rev.Stat.1939, chap. 121 1/2, pars. 158-165, by procuring a license, and that plaintiff was charged with notice of such law, and that buyer did not have such a license, and that if buyer sold any such goods he did so from a building or residence, and that the sale was made with the knowledge that the goods were to be handled by Price as a transient merchant; (2) that under the contract it is contemplated, understood and agreed that Price would peddle and sell and become a transient merchant, and that therefore the defendant is not liable; (3) that the same facts as to the purchaser being a transient merchant, and the further facts that the goods were sold and delivered to Price at a different place than where he resided at the time of making the contract, and that he thereby sold to persons not financially responsible, because he was not acquainted with their financial standing, thereby damaged and relieved the defendant; (4) that the contract as to defendant was constructively fraudulent because defendant was deceived into believing that Price would sell the goods in the neighborhood of Monticello, but actually was permitted to sell them in another neighborhood some fifty miles away.

We have set forth the legal effect of the answer as contended by appellant, but as a matter of fact the answer is an admixture of argument, conclusions, evasions, construction of contract, qualified denials and affirmative matter. But in view of the case being certified for importance we have endeavored to sift out the defense appellant claims for each part of the amended answer.

The claim that the contract is one of agency rather than sale cannot be sustained. It complies with the statute, which provides that a contract to sell goods is one whereby the seller agrees to transfer the property in goods to the buyer for consideration. Ill.Rev.Stat.1939, chap. 121 1/2, par. 1. The fact the contract provides goods may be repurchased and the price applied on amounts due and owing does not make it an agency contract, because the statute also provides that price may be paid in personal property. Sec. 9. By the contract plaintiff agreed to sell and deliver certain goods, and by the same contract Price agreed to accept and pay for the goods in a certain manner. The property was to be delivered f.o.b. Winona, Minnesota, and the buyer agreed to pay the transportation charges. There is no provision anywhere in the contract by which the seller retained title to the goods, but the property passed to the buyer when placed on board the cars at the place of shipment, and he became liable for the payment thereof. Even under defendant's contention that the contract should be construed as one of agency he is not thereby relieved, because he does not deny that Price received the goods and failed to pay for them, and by the guaranty he made an unqualified promise to pay any amount Price could be required to pay under the contract.

Appellant's next contention that it was the intention and the meaning of the contract to authorize the buyer to dispose of the purchased goods as a transient merchant is not supported by anything, except the bare statement in the answer that such was contemplated by the contract. Where parties have...