The W. T. Rawleigh Medical Company v. Holcomb

• Decision Date: 08 January 1917
• Docket Number: 91
• Citation: 191 S.W. 215,126 Ark. 597
• Parties: THE W. T. RAWLEIGH MEDICAL COMPANY v. HOLCOMB
• Court: Arkansas Supreme Court

191 S.W. 215

126 Ark. 597

THE W. T. RAWLEIGH MEDICAL COMPANY v. HOLCOMB

No. 91

Supreme Court of Arkansas

January 8, 1917

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed, and cause remanded.

Henry Berger, for appellant.

1. This case presents substantially the same questions as those involved in 115 Ark. 166. But the contract is entirely different. In the above case the contract was ambiguous and parol evidence was admissible with letters, circulars and the conduct, etc., of parties, etc., to determine the relationship of parties. Where the contract is unambiguous and is neither doubtful, uncertain nor equivocal in meaning etc., parol evidence cannot be introduced to enlarge its terms. Ib. See also 2 Taylor on Ev., § 1035; 53 Wisc 415; 17 C. B. (N. S.) 578. Here the contract is perfect and complete.

2. It was error to allow appellee to testify on his cross-complaint as to his damages. Lost profits must be ascertainable within reasonable certainty, and not merely speculative, contingent and uncertain. 65 Nebr. 646; 91 N.W. 508; 74 N.Y.S. 764; 70 Kans. 409; 78 P. 861; 108 La. 171; 32 So. 456; 15 Okla. 493; 82 P. 502; 157 Ind. 271, 61 N.E. 561; 1 Gall. 315, Fed. Cas. No. 8, 403; 65 Am. Dec. 602; 3 Sutherland on Dam. (3 Ed.), 2136; Sedgw. on Dam., § 183, 111 Ark. 484.

3. The court erred in giving instruction No. 4 for plaintiff. This was, in effect, a peremptory instruction that plaintiff could not recover on his cross-complaint because he sustained no damages. Yet appellee was permitted to testify that he was the agent of appellant company. This was error. 181 S.W. 604. There was also error in No. 5, given for appellee which told the jury that the contract and sale of goods was void and cannot be enforced. 183 S.W. 741.

4. The contract and articles furnished constituted a sale of merchandise by a citizen of Illinois to a citizen of Arkansas, and was an interstate transaction which cannot be regulated by statute.

J. C. Ross, for appellee.

1. This case is controlled by 115 Ark. 166, and 124 Ark. 539. The substantial provisions of each contract are the same. The conduct of parties under each contract is exactly the same. Appellant never complied with the laws of Arkansas authorizing it to do business in this State.

2. Reviews the letters, circulars and evidence and contends that there is no error for which the judgment should be reversed. Holcomb was a mere agent and appellant was transacting business here contrary to law. Cases supra.

OPINION

SMITH, J.

It is insisted by learned counsel for appellees that we have here a case which presents the same question decided in the case of Clark v. J. R. Watkins Medical Co., 115 Ark. 166, 171 S.W. 136, and also in the case of J. R. Watkins Medical Co. v. Williams, 124 Ark. 539, 187 S.W. 653, and that this case is, therefore, controlled by the opinions in those cases. There are points of similarity between the cases, yet we do not find here the uncertainty in the relationship of the parties which was developed by the proof in the former cases and which we said warranted the submission to the jury of the question of the determination of the relationship between the parties and supported the jury's finding that this relationship was that of principal and agent, and not that of vendor and purchaser. We set out in full a copy of the contract between the parties to this litigation. It is as follows:

"(1) This agreement made this 27th day of June, A. D., 1914, at Freeport, Illinois, between the W. T. Rawleigh Medical Company, party of the first part, hereinafter called the Company, and N. W. Holcomb, of Bismarck, Arkansas, party of the second part.

"(2) 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, unless prevented by strikes, fires, accidents or other causes beyond its control, promises and agrees to sell and deliver to the party of the second part, f. o. b. cars at Freeport, Illinois, or, at its option, any other regular place of shipment, in such reasonable quantities as the party of the second part may from time to time order, all medicines, extracts and other products 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 list prices, such prices to be shown by invoice of each shipment.

"(3) At its option, the Company will also sell party of the second part, partly on credit, a medicine wagon, such as said party of the second part may choose from current catalog, circulars, or other descriptions, and charge said wagon to his account at its customary credit price less any cash payment said second party may make.

"(4) The Company further agrees to re-purchase from said party of the second part, at any time during the term of, or promptly after the termination or expiration of this contract, and at the wholesale prices then current, such medicines, extracts and other products of its manufacture as he may then have on hand in as good salable condition as when originally sold to him, on return of such products promptly by prepaid freight to Freeport, Illinois, or such other regular factory shipping point as may be designated by the Company in writing, and provided that said second party will pay the Company's actual expense of receiving, inspecting and overhauling all such goods.

"(5) The party of the second part promises and agrees to pay the Company the wholesale prices f. o. b. cars at Freeport, Illinois, or other regular place of shipment as aforesaid, for all medicines, extracts and other products furnished him from time to time, including any balance due on wagons, as hereinbefore provided by weekly payments, and that at the termination or expiration of this agreement for whatever cause, said second party further promises and agrees to pay in cash the balance due said Company on account for all medicines, extracts, other products, and wagon sold and delivered to him, as hereinbefore provided. But the time of making such payments, or any or all of them, may be extended by said Company without notice to the guarantors of this agreement, and without prejudice to the interests or rights of said Company.

"(6) It is further understood and agreed that if said party of the second part pays his account in full on or before the fifteenth day of each month he will be allowed a cash discount of three per cent. (3%) from the usual and customary wholesale list prices.

"(7) And it is further agreed between the parties hereto that this contract is subject to acceptance at the home office of said Company in Freeport, Illinois, and that unless previously terminated for any reason by either party upon written notice, shall expire by limitation December 31, 1914.

"(8) At the expiration of this contract the Company hereby agrees to make a new contract, if signed by acceptable guarantors, with said party of the second part, without requiring his account to be paid in full at that time, provided the amount of his purchases and the condition of his account has been satisfactory to said Company.

"(9) And it is further agreed by and between the parties hereto that this instrument constitutes and shall constitute the sole and entire agreement by and between the parties hereto, unless wholly cancelled, revoked or modified by the expressed written agreement of the parties hereto, to which has been affixed the corporate seal of the party of the first part.

"(10) In Testimony Whereof, the party of the first part has caused this agreement to be executed in its corporate name by its President and its corporate seal to be hereunto affixed; and the said party of the second part has hereunto set his hand and seal, the day and year first above written.

"The W. T. Rawleigh Medical Company,

"By W. T. Rawleigh, President,

"(Seal)

"N. W. Holcomb,

"Accepted

"July 2, 1914

"(Seal)

"At Freeport, Illinois.

"Second Party sign in Ink."

A comparison of the provisions of this contract will disclose several material variations between it and the one set out in the opinion in the case of Clark v. Medical Co., supra.

We said in that case, as it had been said in many others, that it was the duty of the court to construe a contract and declare its meaning where its terms were unambiguous. We said, however in that case, and in the case of Medical Co. v. Williams, supra, that the contract there under consideration was ambiguous, and that the conduct of the parties in the performance of its terms added to the ambiguity, and...