W.T. Rawleigh Co. v. Herzog

• Decision Date: 06 December 1927
• Docket Number: No. 20073.,20073.
• Citation: 299 S.W. 1113
• Parties: W. T. RAWLEIGH CO. v. HERZOG et al.
• Court: Missouri Court of Appeals

299 S.W. 1113

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

No. 20073.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

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

"Not to be officially published."

Action by the W. T. Rawleigh Company against Felix Herzog and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Jerry B. Burks, of Farmington, for appellant.

B. H. Marbury and W. A. Brookshire, both of Farmington, for respondents.

DAUES, P. J.

This is an action on a contract (bond) of guaranty. Plaintiff and the defendants entered into a contract, in which defendants guaranteed payment of whatever amount was justly due plaintiff from one L. F. Herzog for goods purchased under a contract between Herzog and plaintiff, the idea expressed in the contract being that it was a purchase for resale. The defendants denied the indebtedness of L. F. Herzog, and defended on the ground that Herzog had been created an agent of the plaintiff through its contract, as shown by certain guide books furnished Herzog and numerous letters of instructions and requests. The amount sued for was $710.70. together with interest. The case was tried before the court sitting as a jury, with a judgment in favor of the defendants. The contract and itemized account were introduced.

There was evidence on the part of plaintiff that goods in the alleged amount had been furnished to Herzog and were unpaid. The defense of the guarantors was that plaintiff violated and departed from its contract with Herzog, by directing him by letters and pamphlets to dispose of the merchandise received by him from plaintiff, to be left on time and trial with all persons that he could interest, without regard to their solvency or honesty, and that therefore Herzog was an agent of plaintiff in acquiring and disposing of such products, and thus the defendants were discharged on their bond of guaranty to protect plaintiff under the original contract.

Defendants, over objections, introduced numerous letters and circulars from plaintiff to Herzog, by which it is said that the contract was so altered and changed as to release them. The contract was entered into in the state of Illinois by plaintiff, an Illinois corporation, and L. F. Herzog, of Farmington, Mo., and they are referred to as the seller and buyer, respectively. After reciting the terms and prices to be paid, the contract contains the following:

It is mutually agreed 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, circulars, 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, 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, and never has been, an agent or representative of the seller, but in business strictly for himself."

In the next section it is provided that this contract constitutes the sole agreement, and is not subject to change, except in writing signed by both parties. The contract of guaranty by the defendants follows, and is in the usual form. The goods sold consist of numerous small items, covering 29 pages of the abstract of the record. The articles seem to be in the medical proprietary and sundry line.

The question, then, is whether the lower court is to be sustained in holding under the law and the evidence that plaintiff, notwithstanding the written contract, has by letters and instructions so changed the relationship of the parties as to release the guarantors. This question has been in the courts before, in which this very plaintiff has brought" similar suits, and, unless paragraphs 9 and 10 of the contract change the situation, then it was clearly a question of fact to be determined by the court (in this case without a jury) as to whether the Rawleigh Company had not destroyed the relationship of buyer and seller and made Herzog its agent. In its first letter, plaintiff advised Herzog, in no uncertain terms and in a manner which clearly shows that it was provoked, that Herzog was going after business in a half-hearted manner, and admonished Herzog that, if he expected to build up a business that would be profitable to him and satisfactory to the company, it would be necessary to study the literature sent by plaintiff. He is urged to "keep going," and to spend more time on how to leave the products on time and trial. And there is another letter urging Herzog to start out unusually early on a certain morning and leave some products with all families. He is also urged to work late in the evening, to put in longer days, to observe the needs of each family for Rawleigh products, and to leave all such as are likely to be needed.

In another letter, Exhibit No. 5, accompanied by a bulletin, Herzog was chided by the record of some other customers, giving as one of the reasons that the other customers made more sales by "leaving medicines and other products on time and trial and by stocking un customers with their winter needs," and then adds the following:

"If you have been wasting time for this reason or that reason, and simply taking what business comes easily, instead of putting real `driving power' back of your efforts to leave more and collect more, you've got to wake up and do better every day from now on."

He is then urged to leave from one to three or more bottles with every trustworthy family when he calls on them, telling them that, if the medicine is once left in the home they are nearly always needed, used, found satisfactory, and paid for. He is then told:

"If you can't follow our suggestions, we be lieve it will be better for all concerned that you get an industrious man started in that locality as your successor."

He is urged over and over again—in fact, it is demanded of him in forceful language— that he make a determined effort to leave some of Rawleigh's products that customers have not previously tried at every call; to leave an extra package at each call, which will in the end mean increased business.

Herzog testified for the defendants that he received these letters and instructions and read them; that he left the medicine with people on trial,...