J. R. Watkins Medical Co. v. Holloway

• Decision Date: 08 January 1916
• Docket Number: No. 1543.,1543.
• Parties: J. R. WATKINS MEDICAL CO. v. HOLLOWAY et al.
• Court: Missouri Court of Appeals

181 S.W. 602

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

No. 1543.

Springfield Court of Appeals. Missouri.

January 8, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by the J. R. Watkins Medical Company, a corporation, against S. O. Holloway and others. From a judgment for plaintiff, defendants appeal. Affirmed.

David W. Hill, of Poplar Bluff, for appellants. Sheppard & Sheppard, of Poplar Bluff, Ernest A. Green, of St. Louis, and Leslie C. Green, of Poplar Bluff, for respondent.

FARRINGTON, J.

This cause is here on the second appeal. See 182 Mo. App. 140, 168 S. W. 290. The statement made in the former opinion sets forth the contract on which this suit is based. On the former appeal we held that the contract and articles furnished thereunder constituted a sale of merchandise from a citizen of Minnesota to a citizen of Missouri, and was therefore an interstate commerce transaction which could not be measured or fettered by our state statutes regulating trusts and monopolies, nor by our statutes denying a foreign corporation the benefit of our courts, because it had not complied with the Missouri statutes concerning foreign corporations doing business in this state; that such statutes only apply where the corporation is doing an intrastate business in Missouri. We are satisfied with our holding in that regard as being supported by the authorities therein cited and which are binding upon us. Since that opinion was published, the Supreme Court of this state, in the case of Kansas City v. McDonald (Sup.) 175 S. W. 917, has seen fit to cite it as an authority on the questions therein discussed; and the Supreme Court of Arkansas, in the case of Clark v. J. R. Watkins Medical Company (Ark.) 171 S. W. 136, in considering a somewhat similar question, approves our holding, and distinguishes the facts of the Clark Case from those of this case. We are therefore not inclined to hold differently than that the contract, a copy of which is found in our former opinion, is one of sale, and that the transactions of the parties acting under such contract were dealings in interstate commerce.

On the second trial of this cause the trial court rendered judgment for the plaintiff, and the defendants have appealed. They contended at the trial, and have carried the contention into their briefs, that the contract set forth in our former opinion was modified by the parties so as to change its character from a contract of sale to one of bailment, and that therefore the defendant Holloway was an agent and peddler for the plaintiff, carrying on its business locally in the state of Missouri, and that under sections 3039 and 3040, R. S. 1909, plaintiff should not be permitted to recover in this action. Defendants contend that there was a modification of the contract sued on, and attach to their answer what they conceive to be the modification, a paper referred to in the record as "Exhibit A." It seems to us that defendants are by their answer precluded from claiming that the transaction whereby defendant Holloway procured these goods was anything but a sale, and in view of the allegations of their answer we cannot understand how they now claim that Holloway was holding the goods as an agent. That part of their answer to which we refer is as follows:

"* * * That all of the goods, wares, and merchandise that were sold and delivered by plaintiff to the defendant Holloway were sold and delivered by virtue of the two written contracts above referred to, and the modification thereof as shown by defendants' Exhibit A, hereto attached. * * *"

There is also the following averment in their answer:

"* * * That the business carried on by the plaintiff, which is the subject-matter of this action, was not transacted through drummers or traveling salesmen soliciting business for the plaintiff. * * *"

Defendant Holloway testified that when the contract was sent to him to be signed by himself and his codefendants, the guarantors, it was accompanied by a piece of white paper, printed, which is Exhibit A. This paper is headed "Explanation of Contract." Holloway testified that when he asked the guarantors to sign the contract on which the suit is based, he did not present to them Exhibit A. It is clearly evident from Holloway's testimony that he received both the contract to be signed, and which was signed, and the explanation paper, Exhibit A, at the same time, and that he and the guarantors signed the contract and returned it to plaintiff and that plaintiff in turn signed it, when it became a binding contract between the parties. Exhibit A is in no sense a contract of any kind, or the modification of any contract; and, while it does contain the terms "agent" and "agency," its contents are not inconsistent with the contract sued on which is one of sale. The only theory...