Lange Co. v. Freeman

• Decision Date: 20 February 1929
• Docket Number: No. 4495.,4495.
• Parties: LANGE CO. v. FREEMAN.
• Court: Missouri Court of Appeals

13 S.W.2d 1092

LANGE CO. v. FREEMAN.

No. 4495.

Springfield Court of Appeals. Missouri.

February 20, 1929.

Appeal from Circuit Court, Jasper County; S. M. Bates, Judge.

Action by the Lange Company against John Freeman. Judgment for defendant, and plaintiff appeals. Affirmed.

Edward Scott and A. M. Baird, both of Joplin, for appellant.

Roy Coyne and C. E. Hastings, both of Joplin, for respondent.

COX, P. J.

Action upon contract against the principal, J. C. McNett, and his guarantors, William Bristow and this defendant, John Freeman. Prior to the trial, McNett and Bristow died. The petition was then amended, omitting the names of these two defendants, and the cause proceeded to trial before a jury against Freeman alone. A verdict was rendered in favor of defendant, and plaintiff appealed.

The plaintiff is a wholesaler of certain medicines, flavoring extracts, toilet preparations, teas, coffees, spices, and many other things and products intended for use in the home and on the farm. These products are sold by plaintiff to so-called "wagon men," to be by them resold to customers in certain territory allotted to them. The wagon man is, in fact, a peddler, who goes from house to house and sells his goods. Mr. McNett entered into a contract with plaintiff to purchase goods from it and resell them in Jasper county, Mo. The pertinent provisions of this contract are as follows:

"He further agrees to pay said company for all articles purchased under this contract the current wholesale prices of such articles by remitting in cash each week to said company an amount equal to at least the wholesale price of such goods as sold for cash and collected for by him in accordance with the provisions of the weekly report blank of said company and for that purpose as evidence of good faith, he shall submit to said company, complete itemized weekly reports of his business, provided, however, if he pay his account in full on or before the fifteenth day of each month, he shall be allowed a discount of six (6%) per cent. from the current wholesale prices. * * *

"When the sale or purchase of articles under this contract shall be permanently discontinued for any reason or upon notice given by either party it is thereby terminated and he further agrees to settle in cash within a reasonable time the balance due said company on account.

"The said company further agrees to furnish him free of charge at De Pere, Wisconsin, report blanks, order blanks, printed return envelopes for his use; also to furnish him free of charge after he has ordered goods its monthly sales letter, selling suggestions and such other booklets and letters as they may issue from time to time as to the best methods of selling to consumers such goods purchased by him but it is expressly agreed that nothing contained in such letters, books, or suggestions and advice shall be construed as in any way modifying the terms of this contract or as restricting purchasers property rights in said goods."

The contract of guaranty executed by this defendant and Mr. Bristow is as follows: "In consideration of the Lange Company extending credit to the above named persons and for other valuable consideration, we hereby guarantee to it jointly and severally the honest and faithful performance of said contract by him, waiving acceptance of this guarantee and all notice and agree that the written acknowledgment of this account or any judgment against said principal shall in every respect bind and be conclusive against the undersigned and that any extension of time or change of territory shall not release us from liability under this guarantee."

The suit against defendant is based upon the guaranty contract. Plaintiff proved the amount of goods sold and delivered to McNett and the credits showing a balance due plaintiff of $830.01 and some accumulated interest. The defense is that plaintiff had changed the contract with McNett by inducing him to sell largely on credit, while the contract required him to sell for cash, and had so controlled the conduct of McNett in handling the goods as to constitute McNett the agent of plaintiff, and by this course of conduct had relieved the guarantors of liability under their contract of guaranty. A number of letters by plaintiff to McNett were placed in evidence by defendant, in which McNett was urged to get the goods out so he would have large collections in the fall. A sample of these is one dated August 3, 1922, which is as follows:

"Dear Sir: We have your report for the week ending July 29th and thank you for same, yet we note the small amount of time and trial sales. It would seem to us that it is a big mistake not to push out the goods with the people at this time. Now is just the season to build up the big accounts for fall collections and it seems the man who gives particular attention to doing this is the one who will come through with a big harvest this fall. You must recognize that if the farmer did not sow he could not reap. We hesitate in urging men to push out goods in this way for fear that he will feel that we are urging him to do something to his loss. We assure you, however, years of experience has taught us that invariably, the man who pushes out the goods and builds up a big bunch of...