W. T. Rawleigh Co. v. Land

• Decision Date: 14 March 1924
• Docket Number: (No. 2876.)
• Citation: 261 S.W. 186
• Parties: W. T. RAWLEIGH CO. v. LAND et al.
• Court: Texas Court of Appeals

261 S.W. 186

W. T. RAWLEIGH CO. v.LAND et al.

(No. 2876.)

Court of Civil Appeals of Texas. Texarkana.

March 14, 1924.

Rehearing Granted May 1, 1924.

Appeal from District Court, Fannin County; C. A. Wheeler, Special Judge.

Action by the W. T. Rawleigh Company against B. B. Land and others.Judgment for defendants, and plaintiff appeals.Affirmed.

Thos. P. Steger, of Bonham, for appellant.

Cunningham, McMahon & Lipscomb, of Bonham, for appellees.

HODGES, J.

The appellant is a foreign private corporation, with an office and place of business at Memphis, Tenn., and is engaged in selling, at wholesale, drugs, medicines, and other household articles of merchandise.In January, 1921, it entered into the following written contract or agreement with the appelleeB. B. Land, as principal, and the other appellees as guarantors:

"Renewal Contract.

"(1) This contract, made and entered into at the city of Memphis, state of Tennessee, by and between the W. T. Rawleigh Company, an Illinois corporation, hereinafter called the seller, and B. B. Land of Gober, in the state of Texas, hereinafter called the buyer:

"(2) Witnesseth, whereas, said buyer desires to purchase of the seller, at wholesale, such of its manufactured products as the seller shall hereafter determine to sell to the said buyer; the kind and quantity of which is to be optional with the said seller.

"(3) The seller agrees to sell and deliver to the buyer f. o. b. Memphis, Tennessee, or at its option f. o. b. Freeport, Illinois, or any of its branch houses, or at any other point agreed upon, such of its products as hereinabove specified, and at current wholesale prices, unless prevented by strikes, fires, accidents, or other causes beyond its control; the said buyer to furnish signed orders for such goods.

"(4) The buyer agrees to pay said seller the invoice price for all products so purchased under this agreement, also any balance due the seller at the date of the acceptance of this renewal contract, by cash, or by installment payments satisfactory to the seller, subject to the discounts as shown in current discount sheets, and subject to paragraph 6 hereof.

"(5) The seller will, at its option, also sell to the buyer a wagon, or a body suitable for auto chassis, for cash, or partly or wholly on time, such as the buyer may choose from the seller's current wagon catalogue, circulars, or other descriptions.

"(6) It is hereby further agreed that either party may, at any time before the expiration of this contract, by written notice, terminate this agreement, and when so terminated, the account then due and owing shall become immediately due and payable.If not so terminated, this agreement shall expire by limitation on the 31st day of December, 1921; and if buyer refuses or neglects to furnish acceptable renewal contract, the full amount due hereunder shall be due and payable promptly.

"(7) It is further agreed that if dealings conducted hereunder are mutually agreeable and satisfactory, that a new contract may be entered into for the succeeding year, but the refusal on the part of the seller to enter into a new agreement shall not in any wise affect the agreement herein on the part of the buyer to pay his account.

"(8) Seller agrees to purchase from buyer any products (wagon, auto body, and sample cases excepted)he may have on hand, and pay or credit buyer with the wholesale price current when they are received by seller, provided buyer returns them during the life of contract, or promptly after termination or expiration of same, and provided freight is fully prepaid to point seller designates said products are to be returned; buyer to pay seller the actual expense of inspecting and overhauling same.

"(9) It is mutually understood that the seller will furnish the buyer, from time to time, with educational salesmanship literature, consisting of Rawleigh's Weekly, Guide Book, and other booklets, bulletins, leaflets, and letters of advice and suggestions, for the sole purpose of aiding and assisting buyer in making sales and collections; but it is expressly agreed that nothing contained in any of the aforesaid literature, letters, booklets, bulletins, leaflets, etc., shall be taken in any wise to alter, modify, change, or affect this agreement, and shall only be considered as educational and advisory; and it is further expressly understood and agreed that any advice or suggestions contained therein is not to be considered by the buyer as orders, directions or instructions, nor in any way binding on him; it being mutually and fully understood and agreed that the said buyer is not, nor never has been, an agent or representative of the seller, but in business strictly for theirself.

"(10) And it is further understood and agreed, by and between the parties hereto, that this contract includes, and does and shall constitute, the sole, only, and entire agreement between the parties hereto; and further, that this contract cannot and shall not be changed or modified in any particular whatsoever by any employee or representative of the seller, in any capacity, unless any such change or modification shall first be specifically reduced to writing and signed by both of the parties hereto, and then any such change or modification shall only be effective after the corporate seal of the seller shall have been duly affixed thereto.

"(11) In witness whereof, the parties hereto have set their hands and seals, the seller in its corporate name, by its president thereunto duly authorized, and its corporate seal hereunto affixed, and the said buyer in his own proper person.The W. T. Rawleigh Company, by W. T. Rawleigh, President.[Signed]B. B. Land.[Seal.]

"Accepted Jan. 3, 1921, at Memphis, Tenn.

"For, and in consideration of, the sum of one dollar, to me in hand paid, the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above-named seller extending further credit to the said buyer, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Rawleigh Company, the above-named seller, unconditionally, the payment, in full, of the balance due or owing said seller on account, as shown by its books at the date of the acceptance of this contract of guaranty by the seller; and the full and complete payment of all moneys due or owing, or that may become due or owing, said seller, and all indebtedness incurred by the buyer under the terms of the above and foregoing instrument, by the buyer named as such therein, and to all of the terms, provisions, and agreements contained in said instruments we fully assent and agree, hereby waiving notice of acceptance, by the seller, of this contract of guaranty, and all notice of any nature whatsoever, and agree that the written acknowledgment by said buyer of the amount due or owing on his account, or that any judgment rendered against him for moneys due the seller, shall in every and all respects bind, and be conclusive jointly or severally, against the undersigned.And we further agree that in any suit brought on this contract of guaranty by the seller, no other or further proof shall be required of it than to establish the amount or sum of money due and owing to it from the said buyer, and when so proven, shall be conclusive and binding upon the undersigned; and, further, that it shall not be necessary for said seller, in order to enforce this contract of guaranty, to first institute suit against said buyer nor exhaust its legal remedies against him; and agree that any extension of the time of payment or payments to said buyer shall not release us from liability, under this contract of guaranty.

"It is hereby mutually understood and agreed that this contract of guaranty is conclusive and binding on the party or parties who sign it, whether the same is signed by any other party or parties, or not, and that any statement or representation made by any person, as to the undertaking of the guarantor or guarantors other than as herein expressed, or as to who or how many parties are to sign this guaranty, shall in no wise affect the rights of the company; and it is mutually understood that this is to be a continuing guaranty; and any notice in any way affecting the responsibility or liability of the signers hereunto, in order to become effective and binding upon the above-named seller, shall be reduced to writing, and delivered by registered mail to the office of the said seller at Memphis, Tennessee.[Affix here 50c. war tax stamp.]

"Responsible Men Sign This Contract of Guaranty Below.

Names.                   Occupations.    P. O. Addresses
                G. W. Skinner. [Seal.]    Farmer.           Cash
                G. R. Boho.    [Seal.]     "                 "
                J. T. Graham   [Seal.]     "                 "
                

"The above guarantors are entitled, upon request at any time to a statement of buyer's account.

"If you expect prompt consideration of contract, guarantors should sign names plainly; also occupations and full addresses must appear plainly in the above spaces."

In April, 1922, the appellant filed this suit against Land and his guarantors to recover the sum of $2,444, as the balance due for merchandise sold to Land prior to, and after, the execution of the above-written agreement.It is alleged that at the time that agreement was executed Land owed the appellant, on previous purchases under contracts similar to the one here set out, the sum of $2,244.81, which was increased by other purchasers, and reduced payments made by Land.It was further alleged —

"that on or about June 30, 1921, plaintiff furnished to defendant Land a written statement showing that said Land then owed plaintiff a balance of $2,283, which amount said Land did then and there owe plaintiff; and thereafter, on or about August 16, 1921, and dated 8/16/21, the said Land, in writing, acknowledged receipt of said statement, and signed the same, which was on or about said time and date returned to plaintiff, and by it...