W.T. Rawleigh Co. v. Hannon
| Citation | 16 So.2d 800,245 Ala. 266 |
| Decision Date | 24 February 1944 |
| Docket Number | 5 Div. 392. |
| Parties | W. T. RAWLEIGH CO. v. HANNON et al. |
| Court | Alabama Supreme Court |
J B. Atkinson, of Clanton, for appellant.
Felix L. Smith, of Rockford, for appellees.
Plaintiff The W. T. Rawleigh Company, a manufacturer of medicines toilet articles, and the like, sued to recover of the defendants, as guarantors, money due it by T. S. McCain, who had with the plaintiff a contract to purchase its articles on a credit basis. Contracts of a similar nature have often been before the courts. W. T. Rawleigh Co. v. Deavours, 209 Ala. 127, 95 So. 459; W. T. Rawleigh Medical Co. v Wilson, 7 Ala.App. 242, 60 So. 1001; W. T. Rawleigh Medical Co. v. Walker, 16 Ala.App. 232, 77 So. 70. In view of its similarity to the other contracts so often presented in the reports, we find no necessity here to give in detail any of the provisions of this contract. Suffice it to say the execution of the contract by these defendants as guarantors was in no manner questioned, nor was there any controversy in regard to the amount claimed to be due by McCain to the plaintiff.
The proof offered by the plaintiff established these facts beyond controversy; and, evidently anticipating the defense to be interposed, plaintiff's proof further showed that one Carr was in no manner connected with plaintiff as an official or an agent; that he was simply a dealer of merchandise just as was McCain, buying and selling on his own responsibility, and with no authority at any time to make any representations, contracts, or agreements, as the agent or representative of the W. T. Rawleigh Company. Plaintiff's testimony was further to the effect that McCain was under no obligation to sell the products purchased at any particular price, or in any particular locality, but was free to sell at whatever price and at whatever place he chose.
The only witness for the defendant was McCain, and it appears from the record to have been assumed that his testimony, if competent and accepted, sufficed to sustain the view of the invalidity of this contract upon the theory of an unreasonable restraint upon trade.
In view of the fact that we are not favored with a brief from counsel for appellees, and the further fact that this question does not appear to have been seriously dealt with by counsel for appellant in brief, we have concluded to leave it to one side and undetermined. Our conclusion upon the evidence in the case and its admissibility determines the result here, and so far as now appears, the question of the validity vel non of this defense may never be reached for consideration. It is not inappropriate, however, to direct attention to numerous authorities which treat this matter, found cited in Wood v. Traders' Securities Co., 221 Ala. 629, 130 So. 398, a case decided, however, before the passage of the act of 1939, now embraced in Chapter 2, Title 57, Code of 1940.
We may add, also, that the contract here in question appears to have been entered into prior to that date. We may likewise observe that the defense appears to rest upon a verbal agreement made some time after the execution of this written contract, and that whether the question of severability treated by the Court of Appeals in W. T. Rawleigh Medical Co. v. Walker, supra (not here reviewed), was there correctly applied, and if so, would have application here, are also questions proper for consideration. These are matters occurring to the mind upon a mere surface consideration, but not here necessary to be further treated, as will readily appear.
As we have observed, the only witness for the defendants was McCain, the dealer under the contract with the plaintiff. His testimony is to the effect that Carr (above referred to), some time after the execution of this contract, told him that he was to sell only in north Chilton County and to sell at the prices fixed by the plaintiff. McCain had no such instructions from the plaintiff, nor did the written contract contain any such provision.
The question of first importance as to the proof concerns the matter of...
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...to the contrary. An alleged principal cannot ratify an agreement which has not been brought to his knowledge. See W.T. Rawleigh Co. v. Hannon, 245 Ala. 266, 16 So.2d 800 (1944); Moore v. Ensley, 112 Ala. 228, 20 So. 744 (1895). Similarly, Gray has failed to produce even a scintilla of evide......
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