The J. R. Watkins Medical Company v. Holloway

• Decision Date: 16 June 1914
• Parties: THE J. R. WATKINS MEDICAL COMPANY, Appellant, v. S. O. HOLLOWAY, JAS. M. MATHIS, and W. J. PENNINGTON, Respondents
• Court: Missouri Court of Appeals

168 S.W. 290

182 Mo.App. 140

THE J. R. WATKINS MEDICAL COMPANY, Appellant, v. S. O. HOLLOWAY, JAS. M. MATHIS, and W. J. PENNINGTON, Respondents

Court of Appeals of Missouri, Springfield

June 16, 1914

Appeal from Butler Circuit Court.--Hon. John P. Foard, Judge.

REVERSED AND REMANDED.

STATEMENT.--The plaintiff, a corporation organized under the laws of Minnesota and maintaining its principal place of business in Winona, Minn., brought suit against the defendants to recover the price of certain medicine and articles of merchandise furnished by the plaintiff to the defendant Holloway under the terms of a written contract. Defendants Mathis and Pennington entered into a written contract with plaintiff guaranteeing the payment for articles furnished to defendant Holloway under his contract; hence the suit against them.

The petition alleges the execution of the contract hereinafter set out, and states that at the time of making the same the defendant Holloway was owing plaintiff the sum of $ 332.95 for medicine and merchandise theretofore sold and delivered to him in Winona, Minn., payment for which was extended to March 1, 1911, and that payment was due, unpaid and owing after demand; that after making the contract, plaintiff sold to defendant on his written orders, f. o. b. Winona, Minn and Memphis, Tenn., such orders dated at different times amounting in the aggregate to $ 320.90, the same being shown by statements attached to the petition and marked as exhibits; and that on these items there had been paid by defendant at various times amounts aggregating $ 122.05 leaving a balance due for the goods which had been delivered prior to the execution of the contract and for those subsequent thereto, less the credits, of $ 531.80, for which plaintiff asked judgment together with interest and costs.

We quote from the defendants' brief as showing the contention made: "The answer of the defendants, in substance, alleges that the contract in suit violated the provisions of section 10298, 10299, 10300 and 10301, Revised Statutes of Missouri, 1909; and that by virtue of section 10307, R. S. 1909, the defendants are not liable in this suit. The answer also alleges that the plaintiff was doing business in Missouri without a license, contrary to section 3039, and by reason of the provisions of section 3040, R. S 1909, plaintiff could not maintain this suit. The answer also alleges want of sufficient consideration and mutuality to support the contract; a modification of the contract and a compliance therewith."

As to want of consideration and modification of the contract, no point is made in defendants' (respondents') brief and no evidence was offered to show a modification.

The plaintiff in its reply put in issue the defenses set up.

The court at the close of plaintiff's evidence directed a verdict for the defendants.

The contract sued on is as follows:

"This Agreement, made at Winona, Minnesota, U.S. A., this 1st day of December, A. D., 1909, between The J. R. Watkins Medical Company, a corporation hereinafter called the Company, party of the first part, and S. O. Holloway of Poplar Bluff, Mo. R. R. 3, party of the second part: "Witnesseth, That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the Company promises and agrees to sell and deliver to the party of the second part, free on board cars, at Winona, Minnesota, or at its option, at any of its regular places of shipment, any and all medicines, extracts and other articles manufactured or sold, or which may hereafter be manufactured or sold by it, at the usual and customary wholesale prices, as shown by the Company's wholesale printed price-list, as the party of the second part may reasonably require for sale by him at the regular retail prices from time to time, from the date hereof until the first day of March, 1911, when this agreement shall terminate; in the following described territory, excepting the incorporated municipalities therein located, to-wit "In the State of Missouri, Howell County.

"In consideration of the sale and delivery to him free on board cars at Winona, Minnesota, or other shipping points as above mentioned, by said company, of the medicines, extracts and other articles manufactured or sold by it, in such reasonable quantities as he may require for sale in said territory at the regular retail prices as hereinbefore provided, the party of the second part promises and agrees, as soon as practicable after said medicines, extracts and other articles are received, to devote the whole of his time and attention to making a diligent, continuous and personal canvass of said territory, and to visit every farm house therein at least twice a year, at his own cost and expense, and provide a good team and proper wagon and outfit therefor, and sell at the regular retail price, aforesaid, said medicines, extracts and other articles or so much thereof at each of said houses to actual consumers in the above mentioned territory, as possible, and at all times during said term, said party of the second part agrees to keep a complete record of all goods disposed of by him in his said territory, and on hand, and to make to said company complete regular weekly written reports of the sales and collections, and also report the goods on hand and outstanding accounts when required by said company so to do.

"And the party of the second part promises and agrees to pay to said company, at Winona, Minnesota, the wholesale prices aforesaid, for the medicines, extracts and other articles sold to him from time to time, as hereinbefore provided, at the time and in the manner and in accordance with the provisions of the weekly report blanks of said company, furnished to the party of the second part, or in cash, within ten days from date of invoice, with the understanding that said company will allow a discount of three per cent from said wholesale prices on cash payments, provided full payment for all goods previously furnished shall then have been made; but such payments, or any of them, may be extended by said company without notice to the sureties hereon or without prejudice to the rights or interest of said company; and if the party of the second part shall not pay cash for said medicines, extracts and other articles so sold and delivered to him, and becomes indebted to said company therefor, and such indebtedness is allowed to continue unpaid, said company may in its discretion, thereafter either limit the sales herein agreed to be made, or discontinue the same until such indebtedness is paid or reduced as said company may require, and at the termination of this agreement, the party of the second part agrees to return by prepaid freight to said company, at Winona, Minnesota, in as good condition as when furnished to him, all of the said medicines, extracts and other articles undisposed of by him in his said territory, and said company agrees to receive such medicines, extracts and other articles as above provided, at the original prices at which the same were sold to him, and credit the party of the second part therefor, less a reasonable sum for putting the same or any part thereof in a salable condition if the same are not in such condition when so returned, and if there is any sum then due from either of the parties to the other, the same shall be due and payable on demand of the party to whom such sum is due.

"And it is mutually agreed between the parties hereto, that the party of the second part shall sell no other goods or articles during the term of this agreement, except those purchased by him from said company, as aforesaid, that he shall pay all transportation charges on goods he so purchases and all expenses and obligations incurred in connection with the canvass of said territory and the sale of the goods therein, and shall have no power or authority to incur any debt, obligation or liability of any kind whatsoever, in the name of, or for, or on account of said company, and that said company shall in no way contribute to the expense of, nor share in the profits of such sales. The party of the second part hereby promises and agrees to pay said company, at Winona, Minnesota, during the term of this agreement, the amount now due it for medicines, extracts and other articles, sold and delivered to him under a former agreement, free on board cars at point of shipment. And if the party of the second part shall fail to perform any of the conditions herein contained, required of him to be performed, at the time and in the manner as herein provided, the said company may, at its option, upon such failure terminate this agreement, by giving said second party written notice thereof by mail, and any sum then owing from said second party to said company shall thereupon be and become immediately due and payable.

"In Witness Whereof, the party of the first part has caused these presents to be executed in its corporate name by its proper officer, and the said party of the second part has hereunto set his hand the day and year first above written.

"THE J. R. WATKINS MEDICAL COMPANY,

"By PAUL WATKINS, Vice-President.

"S. O. HOLLOWAY.

"In consideration of one dollar in hand paid, the receipt of which is hereby acknowledged, and of the execution of the foregoing agreement by The J. R. Watkins Medical Company, and the sale and delivery by it to the party of the second part of its medicines, extracts and other articles and the extension of time of payment of the amount due from him to said company, as therein provided, we, the undersigned, jointly and severally guarantee the full and complete payment of said sum and of said medicines, extracts and other articles, at the time and place,...