Saginaw Medicine Co. v. Dykes

• Decision Date: 11 March 1922
• Docket Number: No. 2995.,2995.
• Citation: 238 S.W. 556,210 Mo. App. 399
• Parties: SAGINAW MEDICINE CO. v. DYKES et al.
• Court: Missouri Court of Appeals

238 S.W. 556

210 Mo. App. 399

SAGINAW MEDICINE CO. v. DYKES et al.

No. 2995.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action by the Saginaw Medicine Company against W. E. Dykes and others. From judgment for plaintiff, defendants J. W. Tillman and J. E. Lurvey appeal. Affirmed.

Wright & Ruffin, of Springfield, for appellants.

Telma S. Heffernan, of Springfield, for respondent.

COX, P. J.

Action upon contract for goods sold and delivered. The contract was executed between plaintiff and defendant Dykes as principal with Tillman and Lurvey as guarantors. The case was tried by the court sitting as a jury and finding for plaintiff. The guarantors Tillman and Lurvey have appealed.

Appellants contend that the contract which is the basis of this action is void for want of mutuality. The material parts of the contract, as far as that question is concerned, are as follows:

"For and in consideration of the promises and agreements hereinafter contained to be kept and performed by the party of the second part, the party of the first part promises and agrees to sell and deliver to the party of the second part, f. o. b. at Saginaw, Michigan, in such reasonable quantities as the party of the second part may from time to time require in his territory hereinafter described, all medicines, extracts and other articles manufactured or sold by it, such goods to be sold and delivered to the party of the second part at the usual and customary wholesale prices at which the same are sold and delivered by the party of the first part in other similar territories, such prices to be shown by invoices accompanying each shipment.

"The party of the second part agrees to sell goods delivered to him under this agreement in the county of Greene, and state of Missouri, or in such other territory as the party of the first part may direct, from the date hereof until the first day of March, 1916, when this agreement shall terminate."

On the back of said contract appears the following:

"In consideration of the sum of one dollar to us severally in hand paid by Saginaw Medicine Company, the receipt of which is hereby acknowledged, and the execution of the within agreement by said company and the sale and delivery by it to the party of the second part, of its medicines, extracts and other articles, we, the undersigned, do hereby jointly and severally guarantee the full and complete payment of said medicines, extracts and other articles, at the time and place and in the manner in said agreement provided.

                "J. W. Tillman
                "L. E. Lurvey."
                

Contracts very similar to this one have been before this court on two former occasions. See J. R. Watkins Medical Co. v. Holloway et al., 182 Mo. App. 140, 168 S. W. 290; McConnon & Co. v. Haskins (Mo. App.) 180 S. W. 21. But the question of the validity of the contract was not raised or passed on in either of those cases.

It will be observed that the consideration in this contract between plaintiff and W. E. Dykes is the mutual promises of the parties. That mutual promises are sufficient as consideration for a contract is elementary law, but such promises must be of such a nature that the parties actually promise to do some definite thing, and the terms of the contract must bind the parties to do the thing promised. In this contract, the plaintiff agrees to sell and deliver to Dykes, medicines, extracts, and other articles manufactured by it in such reasonable quantities as Dykes may from time to time require in his territory hereinafter described. Dykes agrees to sell goods delivered to him under this agreement in the county of Greene and state of Missouri or such other territory as plaintiff might assign to him. Dykes had no established business. The plan of operation was for him to travel from house to house and sell goods much as an ordinary peddler would sell them. There was no way by which it could be determined at the time the contract was signed how much goods would be required to supply him, or whether he would need any goods at all, for, if Dykes were to do his best, he might not be able to sell any of plaintiff's medicine or other goods. Plaintiff did not agree to sell, nor did Dykes agree to buy, any certain quantity. Plaintiff was only to sell such as Dykes should require in his territory, and...