J. R. Watkins Medical Company v. Hunt
| Citation | 177 N.W. 462,104 Neb. 266 |
| Decision Date | 13 March 1920 |
| Docket Number | 20783 |
| Parties | J. R. WATKINS MEDICAL COMPANY, APPELLEE, v. S. M. HUNT, DEFENDANT: FRANK CAMPBELL, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Webster county: WILLIAM C DORSEY, JUDGE. Affirmed.
AFFIRMED.
Bernard McNeny, for appellant.
L. H Blackledge and Tawney, Smith & Tawney, contra.
CORNISH J. LETTON and DAY, JJ., not sitting. ROSE, J., dissenting.
The defendant Frank Campbell (appellant) denies liability as surety, upon two grounds: First, that the contract is void as against public policy; second, that he signed as surety upon condition, not complied with, that one Charles Fuller would also sign.
The case is before us solely upon the pleadings, findings and judgment of the trial court, without bill of exceptions.
It appears that at the time of entering into the contract sued upon the defendant Hunt had become indebted to the plaintiff in the sum of $ 666.83, for certain goods and merchandise, consisting of medicines, extracts, and other articles manufactured by plaintiff, the exact character of which is not shown. It was agreed that the time of payment of the amount due should be extended; that defendant Hunt should have the exclusive right to sell the goods of plaintiff in a particular territory; that he should devote his time thereto and visit farm houses as often as three times a year; that he would purchase the goods of the plaintiff at Winona, Minnesota, pay the freight, and conduct the business at his own cost and expense, the plaintiff having no share in the profits, but agreeing to give him credit for unsold goods shipped and delivered by Hunt to plaintiff at Winona.
Appellant contends that the contract is void as against public policy. The contention is based upon section 2726, Rev. St. 1913, which reads as follows: "Any itinerant vendor of any drug, nostrum, ointment, or appliance of any kind intended for the treatment of any disease or injury, or who shall by writing, printing, or any other method, publicly profess to cure or treat disease or injury, or deformity, by any drug, nostrum, manipulation, or other expedient, shall be deemed guilty of a misdemeanor," etc. It is argued that this section describes two classes of offenses, one for vending and another for publicly professing to cure. We question this construction. The wrongdoer must "profess to cure," etc.
The word "or" in the third line of the section renders construction difficult. The word "vendor" appears to be the subject of the sentence. If the language before the word "or" is interpreted to include all vending or itinerant vending of drugs, etc., then the qualifying phrase following the word "or" would seem to be superfluous, because the word "who" must refer to "itinerant vendor of any drug," etc. It would seem difficult or impossible to make the section read as if it commenced as follows: "Any person who is an itinerant vendor of drugs," etc.
The title of the act and its contents show that it was not intended to deal with patent and proprietary medicines, but merely to "regulate the practice of medicine." This subject is dealt with at section 2735, Rev. St. 1913, where the right of wholesale or retail dealers to sell patent or proprietary medicines is reserved.
Another reason for such interpretation would be that a law, attempting to limit the sale of patent and proprietary medicines to pharmacists, would be a law tending to create a monopoly not necessary for public health or safety, and therefore unconstitutional and void. People v. Wilson, 249 Ill. 195, 94 N.E. 141.
Every presumption is indulged in favor of the findings of the trial court and in support of the judgment rendered. Besides making certain special findings, the court found generally in favor of the plaintiff. While the record before us shows that the contract in part contemplated the itinerant vending of medicines, and the answer of defendant Campbell alleges such vending, the allegations of the answer are denied in the reply. The court's findings do not show such vending, or that defendant Hunt ever professed to cure diseases in any way, or that such profession was contemplated by the contract. As stated in plaintiff's brief, for all the record shows affirmatively, the medicines referred to in the contract might have been for animals, not men; or sales may have consisted of "extracts, or other articles."
The defense is not available for other reasons. The plaintiff, to make his case, did not need to show either sales of medicine to Hunt or that Hunt sold medicines at retail. The record shows affirmatively that the indebtedness sued for was indebtedness arising from previous sales of goods of plaintiff to Hunt under a previous contract. What that contract was, or whether it contemplated itinerant vending, is not shown. It had been fully executed, and the balance due agreed upon and evidenced by a note. Defendant Campbell, as surety, guaranteed the payment of this indebtedness.
We recently held in In re Estate of Lowe, ante, p. 147: "When plaintiff can maintain his cause of action without the aid of an illegal act or one that might be construed as contra bonos mores, he will be allowed to recover." The plaintiff is not seeking to enforce the terms of the contract challenged by appellant as against public policy. Conceding that the law prohibited any act, there is nothing in the record to show that plaintiff or defendant Hunt performed such prohibited act. The general finding for plaintiff must be held to indicate the contrary. The appellant ought not to be permitted to shelter himself behind the provisions of the statute inhibiting certain provisions of the contract, which provision the plaintiff is not seeking to enforce. Common honesty forbids it. McCall Co. v. Hughes, 102 Miss. 375, 42 L. R. A. n. s. 63, 59 So. 794.
Again the agreement to sell to defendant Hunt goods f. o. b. cars at Winona relates to interstate commerce and cannot be affected by the local statutes of this state. The contract under consideration was for the sale of goods to Hunt and did not create an agency. The plaintiff had no warehouse, office or place of business in this state. It did not pay expenses of receiving, handling, storing or selling goods. It was not a partner in the business, nor did it share in the profits. If we were to interpret section 2726, above quoted, as one regulating the sale of patent and proprietary medicines, it could not have extra territorial effect. The defendant, having purchased the goods, would be required...
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