Standard Sewing Mach. Co. v. Smith

• Citation: 152 P. 38,51 Mont. 245
• Decision Date: 01 October 1915
• Docket Number: 3550.
• Parties: STANDARD SEWING MACH. CO. v. SMITH ET AL.
• Court: Montana Supreme Court

152 P. 38

51 Mont. 245

STANDARD SEWING MACH. CO. v. SMITH ET AL.

No. 3550.

Supreme Court of Montana

October 1, 1915

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by the Standard Sewing Machine Company against B. S. Smith and others. from an adverse judgment and order, plaintiff appeals. Affirmed.

Wight & Pew, of Helena, for appellant.

Odell W. McConnell, of Helena, for respondents.

SANNER J.

The material facts in this case are:

On December 13, 1907, one B. S. Smith entered into a written contract with the Standard Sewing Machine Company, a Colorado corporation, which contract provided, among other things, the following: That Smith should receive such sewing machines as the company should send him from either Denver, Colo., or Cleveland, Ohio; that he should at once provide himself with and keep a horse harness, and suitable wagon for carrying sewing machines that he should operate in the territory of "Helena and vicinity only," which territory he was to diligently work, and in the enjoyment of which he was to be protected by the company from incursions on the part of its other representatives; that he should, for the account of the company, sell machines for cash, or "on notes of responsible parties," or lease them "on monthly payments to reliable parties," such notes and leases to be in the name of the company as payee or lessor; that he should indorse as guarantor all such notes and leases; that he should collect all moneys due or to become due for or on account of all sales and leases, remitting the proceeds to the company; that he should make full weekly reports of his proceedings; that he should not handle, sell, or lease any other machines; that he should repossess, at the request of the company, all leased machines "on which one or more payments are in arrears"; that he should aid any special agent sent "to check up the business intrusted to him"; that his compensation should be "a commission equal to the amount received for said machines in excess of the following prices"; and that for a violation of the various duties and obligations assumed by him he should, at the option of the company, suffer certain deductions and other penalties. To this contract was attached an instrument called a "security bond," executed by the respondents at bar, and running to said company specifically in which it is recited that they "jointly and severally guarantee the fulfillment of the within contract by said B. S. Smith and the payment by him to said company at maturity of all moneys due and to become due" thereunder.

This bond, with the contract to which it was attached, was about January 10, 1908, assigned and transferred to the Standard Sewing Machine Company of Ohio, a separate and distinct corporation. Thereafter, and on January 16, 1908, the Standard Sewing Machine Company of Ohio shipped to Smith a number of sewing machines to the value of $296. These machines were received and disposed of by Smith, but he "failed to collect and remit to the Ohio Company the moneys due upon the same," and "there is still due on account thereof the sum of $206.50," which amount the Ohio Company seeks to recover from the respondents. These facts, together with others of no present consequence, being made to appear to the district court, it was concluded, as a matter of law, that no contractual relation existed between the appellant and the respondents at bar, that they owed to it no debt, and that judgment should be entered for their costs. This was done, and these appeals are from that judgment, and from an order denying a new trial.

Several questions are sought to be presented, but the vital one is whether the right result was reached upon the...