W.T. Rawleigh Co. v. Van Duyn
Decision Date | 26 March 1920 |
Citation | 188 P. 945,32 Idaho 767 |
Parties | THE W. T. RAWLEIGH COMPANY, a Corporation, Respondent, v. E. M. VAN DUYN, J. F. AYERS, L. A. RICE and J. B. SMITH, Appellants |
Court | Idaho Supreme Court |
SALES-FOREIGN CORPORATIONS-DOING BUSINESS WITHIN THE STATE-INTERSTATE COMMERCE-GUARANTY-MODIFICATION OF CONTRACT-TRIALS.
1. Held, that the contract in question in this case was one of sale and not of agency.
2. Where a person in this state orders goods from a person in another state by mail, and the goods ordered are delivered to the purchaser on board cars in the foreign state, the transaction constitutes interstate commerce.
3. The statutes of this state prescribing the conditions on which foreign corporations may do business in this state have no application to interstate commerce.
4. Where the evidence relative to the manner of conducting a business is undisputed, it is the province of the court as a matter of law to determine whether such business constitutes interstate commerce.
5. It is competent for guarantors to waive notice of acceptance of their contract of guaranty.
6. Where it is contended that a contract has been modified, and the evidence with relation to such contention is undisputed and unambiguous, it is the duty of the court to announce as a matter of law as to whether a modification of the contract was effected.
7. An error which is not prejudicial will not warrant a reversal of the judgment.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.
Action on contract. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Barber & Davison, for Appellants.
A contract of guaranty tendered for acceptance is merely an offer to guarantee which requires acceptance and notice of acceptance in order to make a complete contract.
The arrangements between the company and the salesman in the restrictions as to territory, the forced credit sales, giving of free samples, all operated to such a change of relations as should discharge the guarantors from any liability. (Finola Mfg. Co. v. Paulsen, 50 Okla. 591, 151 P 195; Credit Clearance Bureau v. George A. Hochbann etc. Co., 25 Cal.App. 546, 144 P. 315; City Messenger etc. Co. v. Postal Telegraph Co., 74 Ore. 433, 145 P. 657; 2 Page on Contracts, 1126; Brooklyn Life Ins. Co. v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Hall v. French Wine Co., 149 A.D. 609, 134 N.Y.S. 158; Lowrey v. Hawaii, 206 U.S. 206, 27 S.Ct. 622, 51 L.Ed. 1026, see, also, Rose's U. S. Notes; Evans v. Lawton, 34 F. 233.)
A guarantor is discharged by any alteration, whether material or not, and whether or not the alteration is to his injury. (Weiss v. Leichter, 113 N.Y.S. 999; Trenton Iron Co. v. Tassi, 56 Misc. 659, 107 N.Y.S. 580.)
The record admits that the plaintiff corporation never qualified to do business within the state, and assuming that the conduct of plaintiff was the transaction of business within the state, it was not entitled to recover. (Katz v. Herrick, 12 Idaho 1, 86 P. 873; Continental Life Ins. & Inv. Co. v. Hattabaugh, 21 Idaho 285, 121 P. 81; Morris-Roberts Co. v. Mariner, 24 Idaho 788, 135 P. 1166; Thomas Mfg. Co. v. Knapp, 101 Minn. 432, 112 N.W. 989; D. M. Osborne & Co. v. Josselyn, 92 Minn. 266, 99 N.W. 890; International Text Book Co. v. Pigg, 76 Kan. 328, 91 P. 74.)
Where, upon all facts and circumstances, there is a reasonable chance or likelihood of conclusions of reasonable men differing, the question is one for the jury. (Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897; Park v. Brandt, 20 Idaho 660, 119 P. 877.)
Instructions should not invade the province of the jury by determining any fact, or leading the jury to believe that the court believes any fact to be proven. (Hughes on Instructions, 127, and cases cited; 38 Cyc. 164, par. 2, and cases cited.)
Wood & Driscoll, for Respondent.
Interstate commerce does not fall within the provisions of the Idaho statutes requiring filing of articles and designation of agent of all foreign corporations doing business in the state.
The matters provided in the original contract in this action do not even constitute doing business in the state, but in any event are interstate commerce. (J. R. Watkins Med. Co. v. Holloway, 182 Mo.App. 140, 168 S.W. 290; J. R. Watkins Med. Co. v. Coombes (Okl.), 166 P. 1072; W. T. Rawleigh Med. Co. v. Ellis, 132 Ark. 421, 201 S.W. 110.)
The question of what facts constitute transaction of interstate commerce within the meaning of the federal constitution aside from the question as to what facts are proven is one of law for the court, and, if under all the facts (being undisputed) the transaction still constitutes interstate commerce, there is nothing to submit to the jury. (W. T. Rawleigh Co. v. Holcomb, 126 Ark. 597, 191 S.W. 215; Oakland Sugar Mill Co. v. Fred W. Wolf Co., 118 F. 239, 245, 55 C. C. A. 93; Hughes on Instructions to Juries, sec. 117; 38 Cyc., p. 1514B; Hollings v. Bankers' Union, 63 S.C. 192, 41 S.E. 90.)
The suggestions and advice offered in evidence and rejected do not show any alteration or modification of the contract. (W. T. Rawleigh Med. Co. v. Rose, 133 Ark. 505, 202 S.W. 849; W. T. Rawleigh Med. Co. v. Van Winkle (Ind. App.), 118 N.E. 834.)
Where a surety's contract waives notice of acceptance, the waiver is binding and no notice is required.
RICE, J. Morgan, C. J., concurs. Budge, J., sat at the hearing but took no part in the decision.
The parties to this action entered into the following written contract:
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