J. R. Watkins Medical Company v. Hogue

• Decision Date: 24 March 1919
• Docket Number: 153
• Citation: 210 S.W. 628,138 Ark. 105
• Parties: THE J. R. WATKINS MEDICAL COMPANY v. HOGUE
• Court: Arkansas Supreme Court

210 S.W. 628

138 Ark. 105

THE J. R. WATKINS MEDICAL COMPANY v. HOGUE

No. 153

Supreme Court of Arkansas

March 24, 1919

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT OF FACTS.

This action was brought by the appellant against the appellees. The appellant is a Minnesota corporation, duly authorized to do business in the State of Arkansas. It alleged that it entered into a contract with Jinks S. Hogue by which it agreed to sell and deliver to the latter, f. o. b. cars, at any of its regular places of shipment, certain goods extracts, and other articles manufactured and sold by it, at customary wholesale prices between January 29, 1915, and March 1, 1916; that Hogue agreed to pay for the goods so purchased, as specified in the terms of the written contract and at the expiration of the period named therein to pay the entire sum remaining unpaid; that A. B. Cox and J. L. Smith in consideration of $ 1 paid by the company and the execution of the contract, as sureties jointly and severally promised and guaranteed the full and complete payment for the said goods according to the terms of the contract; that there was due and unpaid by Hogue the sum of $ 731.26, for which it prayed judgment. The complaint was duly verified.

The appellant attached the copy of the contract, as an exhibit to its complaint, which is as follows:

"This agreement, made at Winona, Minnesota, U.S. A., this 29th day of January, A. D. 1915, between the J. R. Watkins Medical Company, a Minnesota corporation, hereinafter called the company, party of the first part, and Jinks S. Hogue of Bauxite, Arkansas, party of the second part, witnesseth, that for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the company promises and agrees to sell and deliver to the party of the second part, free on board cars at Winona, Minnesota, or at its option, at any of its regular places of shipment any and all medicines, extracts and other articles manufactured or sold, or which may hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion, strikes, or other cause, at the usual and customary wholesale prices, as the party of the second part may reasonably require for sale by him from time to time, from the date hereof, until the first day of March 1916, as hereinafter provided, in the following described territory, excepting the incorporated municipalities therein located, to-wit:

"In the State of Arkansas: The part of Saline County lying southeast of the military road, including the townships of Fairplay and Liberty.

"In consideration of the sale and delivery to him f. o. b. cars at Winona, Minnesota, or other regular shipping point as above mentioned, by said company, of the medicines, extracts and other articles manufactured or sold by it, in such reasonable quantities as he may require for sale in said territory as herein provided, upon the terms herein expressed, the party of the second part promises and agrees as soon as practicable after said medicines, extracts and other articles are received, to make a thorough and personal canvass of said territory at least three times a year, at his own cost and expense, and to provide a good team and proper wagon and outfit therefor, and to sell said medicines extracts and other articles, or so much thereof as possible, and at all times during said term, said party of the second part agrees to keep a complete record of all goods disposed of by him and on hand and to make to said company complete, regular, weekly written reports of all sales and collections and also report the goods on hand and outstanding accounts when requested by said company so to do.

"And the party of the second part promises and agrees to pay to said company, at Winona, Minnesota, the wholesale prices aforesaid, for the medicines, extracts, and other articles sold to him from time to time, as herein provided, and the prepaid freight and express thereon, if any during said term at the time and in the manner and in accordance with the provisions of the weekly report blanks of said company, to be furnished to the party of the second part, and at the termination of this agreement, to pay the whole amount therefor then remaining unpaid; or in cash, within ten days from date of invoice, with the understanding that said company will allow a discount of three per cent. from said wholesale prices on cash payments, provided full payment for all goods previously furnished shall then have been made; but such payments or any of them, may be extended by the said company without notice to the sureties herein and without prejudice to the rights or interests of said company, and if the party of the second part shall not pay cash for said medicines, extracts and other articles so sold and delivered to him, and if the payments at the time and in the manner and in accordance with said weekly report blanks, as aforesaid, are insufficient to pay therefor, said company may, in its discretion, thereafter either limit the sales herein agreed to be made, or discontinue the same until such indebtedness is paid or reduced as said company may require; and, at the termination of this agreement the party of the second part agrees to return by prepaid freight to said company, at Winona, Minnesota, or other point at which the same were delivered, in as good condition as when delivered to him f. o. b. cars, all of the said medicines, extracts and other goods, undisposed of by him, and the company agrees to receive such medicines and other goods, if the same are...