J.R. Watkins Medical Co. v. Brand

• Decision Date: 04 May 1911
• Citation: 143 Ky. 468,136 S.W. 867
• Parties: J. R. WATKINS MEDICAL CO. v. BRAND et al.
• Court: Kentucky Court of Appeals

136 S.W. 867

143 Ky. 468

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

Court of Appeals of Kentucky.

May 4, 1911

Appeal from Circuit Court, Graves County.

Action by the J. R. Watkins Medical Company against A. L. Brand and another. Judgment for defendants. Plaintiff appeals. Reversed and remanded.

R. N Stanfield and Tawney, Smith & Tawney, for appellant.

Robbins & Thomas and B. C. Seay, for appellees.

HOBSON C.J.

The J R. Watkins Company had in its service R. L. High as a traveling salesman, and took from him annually a bond for the faithful discharge of his duties. The last bond was executed on December 19, 1906, and High having failed to pay over to the company $705.04, which he had received for it under the bond, this action was brought by the company against A. L Brand and G. R. Allen, who by a written indorsement on the bond guaranteed his faithfulness. The company's headquarters are at Winona, Minn. It mailed the bond to R. L High at La Center, in Ballard county, Ky. He, without signing it, mailed it to a friend in Graves county to procure the signatures of Allen and Brand, who lived there and had signed his previous bonds. His friend took it to them, and they signed it. He then returned it to High, who then signed it and returned it to the company. The company accepted the bond, but did not notify Allen and Brand thereof. They defended the suit on the ground that they were only guarantors, and were not bound, as they had received no notice from the company that their guaranty was accepted. The circuit court sustained this defense, and dismissed the petition. The plaintiff appeals.

The writing consists of three parts: The first is a statement of what the company shall do, and a promise by High to perform his part of the agreement printed on the back. At the end of this are printed these words as a signature "The J. R. Watkins Medical Company by ___, President." Following this, and under it, High placed his name. Just under this are the words which Allen and Brand signed, as follows:

"For and in consideration of the appointment of the above-mentioned traveling salesman, we hereby agree to be jointly and severally responsible to said the J. R. Watkins Medical Company for the faithful performance of this contract on the part of said traveling salesman (as outlined on the back of this agreement), and for the payment of any balance that may be due said company by him at the date of the acceptance of this contract. G. R. Allen, Mayfield, Ky.

"A. L. Brand, " " "

On the back of the agreement is a statement as to certain things that the salesman agrees to do, and this also was signed by High. When Allen and Brand signed the paper, there were no other signatures to it; and after High had signed it, and returned it to the company, the vice president wrote his name in the blank left for the president's.

The circuit court seems to have based his judgment upon the case of Greer Machine Co. v. Sears, 66 S.W. 521, 23 Ky. Law Rep. 2025. In that case the Greer Machine Company proposed to C. B. Chandler to appoint him their agent to sell certain implements. The proposition was made upon a printed form used by the company. It contained, among other things, a provision that it was not to be "binding until signed by the president of the Greer Machine Company." Chandler accepted the writing by an indorsement on it, and on the same day Sears signed a writing guaranteeing that Chandler would comply with the contract. The paper was then sent to Knoxville, Tenn., where it was approved by the president of the Greer Machine Company, and the contract closed. But Sears had no notice of this. It was held that he was not bound unless he knew the contract was accepted, that actual notice to him was unnecessary if he in fact knew the contract was accepted, or that Chandler had been appointed agent and the goods consigned to him under the contract.

But the ruling in that case is rested upon the peculiar language of the contract. The court said: "In this case the contract was not completed at the time of the execution and delivery to the Greer Machinery Company of the writing signed by appellee. It expressly stipulated that it was...