W.T. Rawleigh Co. v. Van Duyn

Decision Date26 March 1920
Citation188 P. 945,32 Idaho 767
PartiesTHE W. T. RAWLEIGH COMPANY, a Corporation, Respondent, v. E. M. VAN DUYN, J. F. AYERS, L. A. RICE and J. B. SMITH, Appellants
CourtIdaho 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. (Kincheloe v. Holmes, 7 B. Mon. (Ky.) 5, 45 Am. Dec 41; German Sav. Bank v. Drake etc. Co., 112 Iowa 184, 84 Am. St. 335, 83 N.W. 960, 51 L. R. A. 758; Davis v. Wells, Fargo & Co., 104 U.S. 159, 26 L.Ed. 686; Davis Sewing Machine Co. v. Richards, 114 U.S. 524 29 L.Ed. 480; Douglass v. Reynolds, 32 U.S. (7 Pet.) 113, 8 L.Ed. 626, see, also, Rose's U. S. Notes.)

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. (Belle City Mfg. Co. v. Frizzell, 11 Idaho 1, 81 P. 58; Toledo etc. Scale Co. v. Young, 16 Idaho 187, 101 P. 257; Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038; Northern P. Ry. Co. v. Gifford, 25 Idaho 196, 136 P. 1131; International Textbook Co. v. Pigg, 217 U.S. 91, 18 Ann. Cas. 1103, 30 S.Ct. 481, 54 L.Ed. 678, 27 L. R. A., N. S., 493, see, also, Rose's U. S. Notes; Butler Brothers Shoe Co. v. United States Rubber Co., 156 F. 1, 84 C. C. A. 167.)

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. (W. T. Rawleigh Med. Co. v. Laursen, 25 N.D. 63, 141 N.W. 64, 48 L. R. A., N. S., 198; W. T. Rawleigh Med. Co. v. Walker (Ala. App.), 77 So. 70; Davis v. Wells, Fargo & Co., 104 U.S. 159, 26 L.Ed. 686, see, also, Rose's U. S. Notes; Hibernia Bank & Trust Co. v. Cancienne, 140 La. 969, 74 So. 267, L. R. A. 1917D, 402; Hughes v. Roberts etc. Shoe Co., 24 Ky. Law Rep. 2003, 72 S.W. 799; Davis Sewing Machine Co. v. Rosenbaum (Miss.), 16 So. 340; 20 Cyc. 1411; 12 R. C. L. 1070; annotation, 16 L. R. A., N. S., 379.)

RICE, J. Morgan, C. J., concurs. Budge, J., sat at the hearing but took no part in the decision.

OPINION

RICE, J.

The parties to this action entered into the following written contract:

"Whereas E. M. Van Duyn, of Eagle, Idaho, desires to purchase of the W. T. Rawleigh Medical Company, of Freeport, Illinois, on credit and at wholesale prices, to sell again on his own account to consumers, medicines, extracts, spices, soaps, toilet articles, perfumes, stock and poultry preparations, and other products furnished by it, paying his account for such goods in installments as hereafter provided.

"Therefore, he hereby agrees to sell no other products than those sold him by said company, and to have no other business or employment.

"He further agrees to pay said company for all products purchased under this contract the current wholesale prices of such products; 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 three per cent (3%) from current wholesale prices.

"When the sale or purchase of products 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 cause 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 products sold him under this contract to his account at current wholesale prices; also to notify him promptly of any change in wholesale 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; also to furnish him, free of charge, after he has ordered goods, suggestions and advice, through letters, bulletins and booklets, as to the best methods of selling products purchased by him to consumers; but it is expressly agreed that nothing contained in such suggestions and advice shall be construed as in any way modifying the terms of this contract.

"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 E. M. Van Duyn, or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account.

"THE W. T. RAWLEIGH MEDICAL COMPANY,

"(Signed) W. T. RAWLEIGH,

"President.

"(Signed) E. M. VAN DUYN.

"Accepted, Jan. 9th, 1912, at Freeport, Illinois.

...

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