W. T. Raleigh Medical Co. v. Modde

• Decision Date: 04 March 1919
• Docket Number: No. 15237.,15237.
• Parties: W. T. RALEIGH MEDICAL CO. v. MODDE et al.
• Court: Missouri Court of Appeals

209 S.W. 958

W. T. RALEIGH MEDICAL CO. v. MODDE et al.

No. 15237.

St. Louis Court of Appeals. Missouri.

March 4, 1919.

Rehearing Denied March 20, 1919.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Action by the W. T. Raleigh Medical Company against Joseph Modde and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Sheppard & Sheppard, of Poplar Bluff, for appellant.

Chas. A. Killian and Samuel Bond, both of Perryville, for respondents.

ALLEN, J.

This is an action to recover the sum of $781.95 and interest, founded upon a written agreement on the part of the defendants whereby they agreed to guarantee to plaintiff the honest and faithful performance of a certain contract entered into between plaintiff and one Van Eeckhoute. The trial below, before the court and a jury, a jury having been waived, resulted in a judgment for the defendants, from which the plaintiff prosecutes this appeal.

Plaintiff, an Illinois corporation engaged in selling medicines, extracts, etc., entered into a contract with one Polycarpus Van Eeckhoute, of Belgique, Mo., on May 19, 1911, as follows:

"Whereas, P. Van Eeckhoute, of Belgique, Mo., desires to purchase of the W. T. Raleigh Medical Company, of Freeport, Ill., on credit and at wholesale prices, to sell again to consumers, medicines, extracts, spices, soaps, toilet articles, perfumes, polishes, stock dip and disinfectant, stock preparations, and poultry supplies, and other goods manufactured and put up by it, paying his account for such goods in installments as hereafter provided:

`Therefore he hereby agrees to sell no other goods than those sold him by said company, to sell all such goods at regular retail prices to be indicated by it, and to have no other business or employment. [Italics ours.]

"He further agrees to pay said company for all goods purchased under this contract the current wholesale prices of such goods, by remitting in cash each week to said company an amount equal to at least one-half the receipts from his business until his account is balanced, and for that purpose as evidence of good faith he shall submit to said company weekly reports of his business: Provided, however, if he pays his account in full on or before the tenth day of each month, he is to be allowed a discount of 3 per cent. from current wholesale prices. When the sale or purchase of goods under this contract shall be permanently discontinued for any reason, or upon notice given by either party, he further agrees to settle in cash, within a reasonable time, the balance due said company on account.

"Unless prevented by strikes, fires, accidents, or causes beyond its control, said company agrees to fill and deliver on board cars at place of shipment his reasonable orders, provided his account is in satisfactory condition, and to charge all goods shipped him under this contract to his account at current wholesale prices; also to notify him promptly of any change in wholesale or retail prices.

"Said company further agrees to furnish him, free of charge on board cars at place of shipment, a reasonable amount of first-class advertising matter, report and order blanks, and printed return envelopes for his use in conducting his business; also to give him, free of charge, after he has begun work, suggestions and advice, through letters, bulletins, and booklets, as to the best methods of selling its products to consumers.

"This contract is subject to acceptance at the home office of the company, and is to continue in force only so long as his account and the amount of his purchases are satisfactory to said company: Provided, however, that said P. Van Eeckhoute or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account."

Below the signatures of the parties to this contract appears the following, signed by these defendants, viz.:

"In consideration of the W. T. Raleigh Medical Company extending credit to the above-named person, we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time shall not release us from liability under this guaranty."

The petition sets out the substance of these contracts, and alleges that plaintiff, relying upon the said contract of defendants, sold and delivered to Van Eeckhoute, on his order, certain medicines, extracts, etc., for the price of $1,177.90, in accordance with its contract with him; that Van Eeckhoute and the defendants "have wholly failed to keep and perform the conditions of said contract on their part," in that they have failed to pay the purchase price of the goods so sold and delivered by plaintiff to Van Eeckhoute, except the sum of $395.95, "paid on and between the 14th day of August, 1911, and the 12th day of March, 1913," and that demand was made upon the defendants on April 23, 1913; and it is alleged that on March 30, 1914, plaintiff instituted a suit against Van Eeckhoute and these defendants, which was afterwards dismissed as to these defendants; that in said action plaintiff recovered judgment against Van Eeckhoute, on September 15, 1914, in the sum of $856.16; and that execution was duly issued on the judgment and was returned not satisfied.

Judgment is prayed for $781.95, with interest from April 23, 1913.

The answer of the defendants admits the execution of the "guaranty" set out in the petition and that Van Eeckhoute "bought of plaintiff the goods mentioned in its petition." This is followed by a general denial. And for further defense defendants specifically deny that plaintiff ever sold or delivered the goods mentioned in its petition, or any part thereof to Van Eeckhoute "under and by virtue of the contract set out in plaintiff's petition," but allege the fact to be that said goods were sold to Van Eeckhoute "under the express condition, understanding, directions, and command of the plaintiff that said goods were sold to him as its agent and salesman, and were to be disposed of by him under its advice, instructions, and commands." And it is alleged that plaintiff instructed, advised, and commanded Van Eeckhoute to dispose of the goods by leaving them with all persons who would permit him to do so, with permission to such persons to use large quantities thereof without charge or liability, and without security for the return thereof or payment therefor, and without reference to the honesty or solvency of such parties; that Van Eeckhoute received the goods under the terms so imposed by plaintiff, and disposed of them as thus directed, requested, and commanded by plaintiff; whereas, under the contract between plaintiff and Van Eeckhoute, the goods were to be disposed of by the latter by sale only. It is then alleged that, in violation of the contract between plaintiff and Van Eeckhoute, plaintiff, by its instructions, advice, and commands, caused Van Eeckhoute to dispose of said goods in a manner other than by sale to customers, as previously alleged in the answer, and advised Van Eeckhoute "that he was its salesman, and that his position as such depended upon his following its instructions"; that Van Eeckhoute followed said advice, instructions, and commands of plaintiff, disposed of the goods in said manner, "and by reason thereof lost practically all of such goods and articles, and was unable to pay plaintiff therefor." And it is averred that by reason of such interference by plaintiff with the performance of the contract on the part of Van Eeckhoute defendants are released from all liability as guarantors thereof.

The reply is a general denial of the new matter contained in the answer.

After hearing the evidence adduced, the court, at the request of plaintiff, made in writing a finding of facts, as follows:

"The court finds the following to be the facts in this case:

"The plaintiff is an Illinois corporation, engaged in the manufacture and sale of medicines and various other articles.

"That they dispose of their goods according to a plan set out in a guidebook and pamphlets published by them.

"That according to this plan they secure men they call their salesmen, and give them a certain defined territory in which they are allowed to sell goods. These men are offered liberal pay for securing other salesmen, and instructed as to the kind of men wanted and not wanted; one of the requirements being the ability to get at least two solvent securities.

"That one of their agents by painting the business in glowing terms induced P. Van Eeckhoute to apply for a salesman's place, and he secured the defendants as his guarantors.

"That the contract guaranteed by defendants provided that the said Van Eeckhoute was to buy goods from plaintiff at wholesale to be resold by him to customers at retail prices fixed by plaintiff.

"That said contract did not restrict the sales to be made by said Van Eeckhoute to any territory fixed or to be fixed, and did not contain any clause giving plaintiff any authority whatever over the said...