J. R. Watkins Medical Company v. Williams

• Decision Date: 26 June 1916
• Docket Number: 94
• Citation: 187 S.W. 653,124 Ark. 539
• Parties: THE J. R. WATKINS MEDICAL COMPANY v. WILLIAMS
• Court: Arkansas Supreme Court

187 S.W. 653

124 Ark. 539

THE J. R. WATKINS MEDICAL COMPANY v. WILLIAMS

No. 94

Supreme Court of Arkansas

June 26, 1916

Appeal from Greene Circuit Court; W. J. Driver, Judge; affirmed.

Judgment affirmed.

R. P Taylor, for appellant; Tawney, Smith & Tawney, of Winona Minn., of counsel.

1. A similar contract was construed by this court in 115 Ark. 166. Williams was not appellant's agent, and the company was not engaged in business in Arkansas. The facts proven and the contract show a sale of the goods to appellee and not an agency. 181 S.W. 1183; 2 A. & E. Ann. Cas. 309; 161 F. 223; 18 L. R. A. (N. S.) 139, 140; 40 S.W. 393; 98 Tenn. 244. Names go for title; the contract really operates to transfer title and was a sale. Mechem on Sales, §§ 41-49; 28 Am. St. 811; 70 N.W. 808; 180 S.W. 21, and many others.

2. Granting the truth of jury's finding that Williams was an agent, it is not conclusive of plaintiff's right nor of the question of interstate commerce. 115 Ark. 166; 156 F. 2; 141 U.S. 47; 187 Id. 632; 217 Id. 91, and others; 57 Ark. 24; 8 Wall. (U.S.) 168; 216 U.S. 56; 227 Id. 389; 156 Id. 296.

3. Incompetent evidence was admitted and the court's instructions were improper. 156 F. 2; 108 N.E. 791. The interpretation of contracts is one of law and not of fact for a jury. Jones on Ev. (2 ed.), § 175; 89 Ark. 239; 84 U.S. 123; 67 Mo.App. 591.

Burr Stewart & Burr, for appellee.

1. Every question raised here was ruled against appellant's contention in 115 Ark. 166. The contracts are identical. 157 Ky. 570. The facts and contract show an agency and not the relation of vendor and vendee. 141 U.S. 627; 150 Id. 312; 100 S.W. 558; 151 Id. 211; 98 Tenn. 221; 74 C. C. A. 611; 115 Ark. 166.

2. The business done was not interstate commerce. 115 Ark. 166.

3. There is no error in the instructions; they correctly state the law.

OPINION

SMITH, J.

The parties to this litigation concede that the case presents substantially the same questions as those involved in the case of Clark v. J. R. Watkins Medical Co., 115 Ark. 166, 171 S.W. 136. The appellant here was the appellee there, and the cause of action in both cases was founded upon the same agency contract. Appellant advertises itself as the largest medicine house in the world and does its business chiefly through persons who represent it in the same capacity appellee did. The proof shows that at one time it had as many as eighty such representatives in this State and something like two thousand in the United States and Canada, and apparently all of them operate under a contract similar to the one existing between the parties here.

The court below, at its own instance, gave a number of instructions which submitted to the jury for their decision the controlling question of fact, that is, the nature of the relationship between the parties. Other instructions which appellant requested were refused, some of which might very well have been given. Others were properly refused. But without setting out these instructions, it may be said that the ones given substantially declared the law as appellant requested in so far as its instructions were correct declarations of the law. The court told the jury, in effect, to find for appellant for the amount sued for by it, provided they found it had the right to maintain the suit; and the jury was further told, in substance, that appellant had this right unless appellee, who was the defendant there, was its agent in selling and delivering its products in the years 1910, 1911 and 1912, and that the contract sued on was made in this State. And the correctness of this instruction presents the real question in the case.

It is contended here, as it was on the appeal of the former case, cited above, that the contract between the parties was in writing and that it was the duty of the court below to interpret it, and that in the performance of this duty the court should have declared that appellant was not engaged in business in this State, but that all transactions between the parties contemplated under the contract were interstate commerce and that appellant, therefore, had the right to sue in the courts of this State without complying with the laws of this State regulating the manner in which foreign corporations may do business in this State. The trial court took this view of the case on the former appeal and directed a verdict in favor of the plaintiff there; but we reversed that judgment for the reasons there stated. And in doing so, we announced the principles which in our judgment are controlling. We said there that in construing a contract we might take into consideration the construction which the parties themselves had placed upon it and the action which they had taken in executing its provisions; but that these rules of construction were not available where the contract was unambiguous, in which event it was the duty of the court to construe the contract and to declare its purport. We said, however, that the contract was ambiguous and that when it was considered in connection with the correspondence between the parties and their respective conduct in the performance of its terms, the facts were such that it could not be said, as a matter of law, that the contract was one for the sale of goods, and not one for the creation of the relation of principal and agent.

Under the instructions of the court, which conform to the law as announced in the opinion on the appeal of the former case, the jury has found that appellee was appellant's agent in the business which he did in this State. And there can be no question as to the character of the business which appellee was doing. The undisputed proof is, and from the very nature of appellee's business must have been, that appellee was engaged in intrastate business. The wares which the contract contemplated he should sell to the consumer were shipped to him at Marmaduke, Arkansas, from Memphis, Tennessee. The original packages were broken up at Marmaduke and such portions of the various packages as appellee thought he might be able to sell on any particular trip were loaded into his wagon and conveyed from house to house until a purchaser was found, when a delivery would be made.

The former opinion set out the contracts and the correspondence between the parties, and we have substantially the same evidence, and we refer to the former opinion for a statement of the provisions of the contracts. Counsel for appellee summarize these provisions and the evidence here in the...