J.R. Watkins Medical Co. v. Lovelady

• Decision Date: 12 February 1914
• Docket Number: 600
• Citation: 186 Ala. 414,65 So. 52
• Parties: J.R. WATKINS MEDICAL CO. v. LOVELADY et al.
• Court: Alabama Supreme Court

65 So. 52

186 Ala. 414

J.R. WATKINS MEDICAL CO. v. LOVELADY et al.

No. 600

Supreme Court of Alabama

February 12, 1914

Rehearing Denied April 16, 1914

Appeal from Shelby County Court; E.S. Lyman, Judge.

Assumpsit by the J.R. Watkins Medical Company against S.P. Davidson principal, and W.E. Lovelady and others, as sureties. From a judgment for defendant Lovelady, plaintiff appeals. Affirmed.

Count 1 is based upon damages for the breach of an agreement entered into by defendant jointly and severally with plaintiff on the 1st day of December, 1911. The second count is based upon the said agreement, by which it is alleged that W.P. Ryan and W.E. Lovelady then and there and thereby jointly and severally agreed and guaranteed to pay plaintiff the sum of $428.88 within the time and in the manner as in said agreement provided. It is then averred that after the execution of said delivery and agreement, and relying on the promises and agreements of the said defendants, and each of them, plaintiff performed the conditions of said agreement and in the performance thereof sold and delivered to defendant S.P. Davidson upon his order and request free on board cars at Winona, Minn., and Memphis, Tenn., its medicines, extracts, and other articles at the prices mentioned in said agreement in the sum of $534.70; and plaintiff avers that no part of said sum has been paid except the sum of $66.10, although payment thereof is due and has been duly demanded of each and all of said defendants. The third, fourth, and fifth counts were on the common counts.

The contract between the medical company and S.P. Davidson was briefly: That the medical company would furnish and deliver to Davidson at any of its regular places of shipment f.o.b cars any and all medicines, extracts, and other articles manufactured and sold by the medical company, or such as may hereafter be manufactured and sold by it, at the usual and customary wholesale prices, as Davidson may reasonably require for sale by him from time to time, from the 1st day of December, 1911, the date of the contract, until March 1 1913. The contract then fixes the territory, and requires Davidson to devote his whole time and attention to making a diligent and personal canvass of the territory at least three times a year, to keep a complete record of all goods disposed of by him, and to make the company a complete, regular written report of the sales and collections, and, if required, to make a report of the goods on hand and all outstanding accounts. Davidson agrees to pay the company wholesale prices and the prepaid freight and express thereon, if any, weekly, and at the termination of the agreement to pay the whole amount remaining unpaid, or cash in ten days, with 3 per cent. discount from the wholesale prices, and at the termination of the agreement to return goods on hand in good and merchantable condition to the party of the first part f.o.b. cars Winona, Minn. It is mutually agreed that the party of the second part shall sell no other goods or articles except such as furnished by the medical company; that he shall bear all expenses of freight and all expenses incident to and connected with a canvass of the territory in the sale of the goods; shall have no authority or power to incur debts or liability of any character in the name of or for or on account of the company; and the company shall, in no way, contribute to the expenses of or share in the profits or losses of such sale. This contract was executed by the J.R. Watkins Medical Company and by S.P. Davidson.

Following this contract is the following, but whether or not on the same or a separate sheet of paper does not appear:

In consideration of $1 in hand paid by the J.R. Watkins Medical Company, the receipt whereof is hereby acknowledged and the execution of the foregoing agreement by the said company, and the sale and delivery by it to the party of the second part of its medicines, extracts, and other articles, and the extension of the time of payment of the amount due from him to said company as therein provided ($428.88), we, the undersigned, do hereby jointly and severally guarantee the full and complete payment of said sum, and for said medicines,

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