J.R. Watkins Medical Co. v. Moss
| Decision Date | 08 May 1913 |
| Citation | 141 N.W. 497,160 Iowa 244 |
| Parties | J. R. WATKINS MEDICAL COMPANY, Appellee, v. C. A. MOSS and W. A. SMITH, Appellants |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--HON. A. B. THORNELL, Judge.
Reversed.
J. S Dewell and S. H. Cochran, for appellants.
Roadifer & Arthur and Tawney, Smith & Tawney, for appellee.
THE nature of the action and the material facts are sufficiently stated in the opinion. Reversed and Remanded for new trial.
The plaintiff is a corporation engaged in the sale of medicines and remedies of various kinds through the agency or employment of traveling salesmen. On February 24, 1904, the defendant Moss entered the plaintiff's employment as salesman for a period ending March 1, 1905, according to the terms of a written contract executed by the parties as of the date first named. By the terms of the writing Moss was to canvass and make sales in the counties of Montgomery and Wilson in the state of Kansas. New contracts of like nature for additional periods were made between the parties from time to time without substantial change of terms, the last of such instruments bearing date April 22, 1908. In each instance the defendant Smith in writing became surety for the faithful performance of the contract by Moss. Without prolonging this statement by setting out at large the terms of the writing it is sufficient to say that plaintiff undertook to furnish the goods at a designated scale or schedule of prices, and Moss on his part was to canvass his territory from house to house, making sales at prices fixed by the plaintiff. According to the practical interpretation given the contract by both parties Moss was authorized to sell for cash and upon credit to the customers within his territory, and to make collection of accounts so accruing, and it was his duty to make frequent reports of the business done, including both sales and collections made by him. The salesman's profit or compensation consisted of the margin between the retail prices for which sales were made and the schedule prices at which the goods were charged to him. The contract further provided that at the termination of the employment the salesman could return the goods remaining in his hands and receive due credit therefor. This action at law was begun September 24, 1909. The petition as originally filed declared upon the last contract only, but set out a bill of items covering practically the entire period of the services of Moss. Later by amendment the several contracts were all pleaded as affording the plaintiff a basis for recovery. The itemized statement shows an alleged balance of $ 1,631.74 against Moss, and for this sum judgment was asked against both defendants. The defendant Moss, answering separately, denies the plaintiff's claim, and alleges full accounting and payment for all matters properly chargeable to him under said contracts. He further alleges that said contracts were in fact abandoned, and that the dealings of the parties were to a great extent at least carried on without reference to the written agreement. He also pleads by way of counterclaim that plaintiff, in violation of its agreement, excluded him from Wilson county, Kan., which was part of the territory assigned to him under the terms of the contract, and took possession of his books of account, refusing to return them on demand, or to return collections made thereon, whereby he sustained damages in a large sum, for which he demands judgment. For further counterclaim he alleges that plaintiff, in violation of his agreement, failed and refused to fill many of his orders for goods, whereby he sustained further damage. He further pleads that at the termination of his service he tendered and offered to plaintiff all the goods he had left on hand, but plaintiff refused to receive the same or to give him proper credit therefor, and he avers that the credits to which he is entitled for payment made and goods on hand, and for damages sustained by reason of plaintiff's several alleged violations of their agreements, are more than equal to the just claims and demands which plaintiff holds against him. The surety, Smith, answering for himself, relies not only upon the defenses pleaded by Moss, but alleges that he has been released from all liability upon the claims against Moss because of plaintiff's violations of the terms of the contracts. Plaintiff denies all the counterclaims and affirmative defenses pleaded in the answers. The issues were tried to a jury, resulting in a verdict in favor of plaintiff for $ 900. From the judgment entered upon this verdict defendants appeal.
The assignments of error are too numerous for us to attempt their separate statement and consideration. So far as they raise material questions they may be grouped and considered in the following order:
I. Appellants say there is in this action a misjoinder of parties and causes of action, but we think the point is not well taken. It is true plaintiff pleads and demands recovery upon several distinct contracts, but these agreements are all between the same parties and all have relation to business of the same general character, and no good reason is suggested why all matters of controversy relating thereto may not be adequately considered and fairly tried in one action. Whether the true relation of Smith be that of joint debtor or guarantor or surety for Moss, it is certainly proper under our practice to join them as defendants in an action upon the contract, and if there be two or more contracts of the same general nature upon each of which the defendant and his guarantor have assumed the same kind of liability, why should they not be joined and the whole matter settled in a single lawsuit? It is the policy of the law to discourage multiplicity of actions. Code, section 3545. The appellants' objection in this respect was properly overruled.
II. The court instructed the jury that under the issues joined and the evidence offered on the trial the defendant Smith's liability was to be measured by that of his codefendant Moss, and that if the jury should find the plaintiff entitled to recover against the latter, a like recovery must be found against the former. This it is said is erroneous because the alleged indebtedness arose largely from dealings had under the earlier contracts, and the fact that Moss had not fully settled these claims was not communicated to Smith, when he was asked to enter into these subsequent contracts of suretyship. It might well be that if Moss became delinquent, or failed to properly account for goods placed in his hands, and plaintiff took Smith's bond or contract of suretyship upon the renewed contracts concealing from him the fact of such default on the part of his principal, it would constitute a good defense to an action on the new bond, but as we read the record no such state of facts is shown. Smith did not testify in his own behalf, and there being no evidence indicating that he was not fully aware of the state of the account between his principal and the plaintiff when he assumed the responsibility for the principal's performance of the latter contracts, the instruction of which he complains was manifestly proper.
III. The trial court ruled, in substance, that the act of Moss in executing new contracts from year to year without asserting any claim for damages on account of any alleged breach of the prior contracts was, as a matter of law, a waiver of such claim, if any he had, and that in this action his counterclaim for damages must be confined to matters occurring, or dealings had between the parties, subsequent to the date of the last of the series of contracts. Error is assigned upon this ruling, and we are of the opinion that the exception is well taken.
The later contracts contain no statement or agreement of settlement of the prior dealings of the parties, and while the execution of the later instruments may justify some inference or presumption that their mutual claims up to that date had been adjusted, we think there is no rule or principle authorizing the court to assume such settlement as a matter of law and withdraw the question from the consideration of the jury. There is nothing in the record to conclusively indicate the intention of the parties to accomplish a substitution of contracts. Each is made for a definite limited period, and provides no continuing obligation on the part of either party except an agreement by plaintiff to make a new contract upon the expiration of the stated period if the business done by the defendant proves satisfactory. Each subsequent contract is a separate and independent undertaking of the parties, for separate and distinct periods of time. True the service agreed to be rendered by the defendant is of like nature in all of them, but each agreement is complete in itself, and no reason appears why each party may not maintain action for the alleged breach of any one of them without reference to the others. Indeed the plaintiff in its amended petition so treats the several contracts, and in separate counts alleges the failure of the defendant to perform his several agreements as distinct grounds or causes of action. In other words, plaintiff brings defendant into court to recover a sum alleged to be due upon the first contract made in 1904, and upon other similar demands alleged to be due by the terms of...
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