W. T. Rawleigh Co. v. Graham

• Decision Date: 29 June 1940
• Docket Number: 27894.
• Citation: 4 Wn.2d 407,103 P.2d 1076
• Court: Washington Supreme Court
• Parties: W. T. RAWLEIGH CO. v. GRAHAM et al.

103 P.2d 1076

4 Wn.2d 407

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

No. 27894.

Supreme Court of Washington, En Banc.

June 29, 1940

Action by the W. T. Rawleigh Company against Frank Graham and others, as sureties for payment of another's indebtedness for merchandise purchased from plaintiff. Judgment for plaintiff, and defendants appeal.

Affirmed.

BLAKE C.J., dissenting.

Appeal from Superior Court, Grant County; Roger J Meakim, judge.

William M. Clapp, of Ephrata, and T. B. Southard of Wilson Creek, for appellants.

Clinton & Southard, of Ephrata, for respondent.

BEALS Justice.

Plaintiff herein, The W. T. Rawleigh Company, is a corporation organized under the laws of the state of Illinois, maintaining its main office at Freeport, in that state. The company maintains numerous branch offices throughout the United, States, one being located at Oakland, California. Plaintiff is engaged in the sale and manufacture of merchandise, which it sells at wholesale to certain persons, who in turn retail the commodities to consumers.

Plaintiff used a standard form of contract, which those who sell its products sign, and during the year 1931, one F. W. Cline, a resident of the state of Washington, entered into such a contract with plaintiff, pursuant to which he purchased and sold to his customers various articles of merchandise. A renewal contract was executed in 1932, and another similar contract tract signed the following year. The defendants in this action, Frank Graham and Mr. and Mrs. Zack Finney, executed the 1933 contract as sureties. In May, 1934, Cline signed another renewal contract for that year, defendants also signing the contract as sureties. The 1933 and 1934 contracts were identical, save that at the end of the latter contract appears, written in longhand, 'Surety limit not to exceed $975.'

On the date of the acceptance by plaintiff of the 1934 contract, the latter's books showed that Cline was indebted to it in the sum of $972.46. No merchandise was purchased by Cline during the year 1934, but plaintiff allowed him credit in the sum of $85.89, for merchandise which Cline returned, leaving a balance due to plaintiff from Cline in the sum of $886.57.

Plaintiff instituted this action against defendants, as Cline's sureties, seeking to recover judgment for the amount last mentioned. In its complaint, plaintiff set out both the 1933 and 1934 contracts, attaching copies thereof as exhibits to its complaint, demanding a recovery upon both contracts. Defendants moved against the complaint, seeking an order requiring plaintiff to elect as to which contract it would rely upon. They also demurred to the complaint upon several grounds, their motion and demurrer being overruled. Defendants then answered the complaint, setting up six affirmative defenses: First, that the 1933 contract ended December 31st of that year, and thereafter was of no force and effect, that the 1934 contract, signed in May of that year, superseded all prior contracts, and that plaintiff could maintain no claim upon any contract save the latter; second, that defendants were induced to sign both the 1933 and 1934 contracts by false and fraudulent representations made by plaintiff's agent; third, that the action was barred by the two year statute of limitations; fourth, that the action was barred by the three year statute of limitations; fifth and sixth, that the contracts were procured by fraud and were without consideration. Plaintiff's demurrer was sustained to the first, third and fourth affirmative defenses, and overruled as to the other three. Plaintiff then replied with denials to the affirmative defenses, and the issues were tried to a jury, which returned a verdict in favor of the defendants. Plaintiff moved for judgment in its favor notwithstanding the verdict, or in the alternative for a new trial, and the court granted the former motion for judgment in plaintiff's favor as matter of law. The court then signed findings of fact and conclusions of law in plaintiff's favor, followed by a judgment against defendants, from which they have appealed.

Appellants then moved for new trial, which motion was denied. Cline was named as a defendant in the action, but was never served with process, and entered no appearance, the judgment running only against appellants, who were Cline's sureties.

Respondent has moved to strike the transcript and the statement of facts filed by appellants. The motions are without merit, and are denied.

Appellants assign twenty-seven errors, contending that the trial court erred in overruling their motions and demurrers directed against the complaint; in admitting in evidence, over their objections, testimony and exhibits offered by respondent; in entering findings of fact and conclusions of law in respondent's favor; in granting respondent's motion for judgment in its favor notwithstanding the verdict; in entering judgment against appellants; and in denying their motion for a new trial. Appellants also argue that the trial court erred in not limiting respondent's recovery to the value of sales made under the 1933 and 1934 contracts, and in not holding that payments made by Cline after January 1, 1933, should be applied in payment for sales made by respondent to Cline after that date.

The contracts between the parties to this action are identical, with the exception above noted. Cline signed one contract, containing the following paragraph:

'(1) In consideration of the promises of the undersigned Buyer, The W. T. Rawleigh Company, an Illinois Corporation, agrees to sell and deliver f. o. b. Oakland, California, or at any other point or in any other manner agreed upon, such reasonable quantities of its Products as the Buyer may order at current wholesale prices, and on time, and if desired will sell Buyer an Auto Body and/or Equipment, or sample cases, for cash or on time; and the Buyer in consideration of the above agreements hereby promises to pay Seller in full for all such Products so sold and delivered under this Contract also agrees to pay any balance due Seller at the date of the acceptance of this Renewal Contract for Products previously sold Buyer under any and all former Contracts, by cash or by installment payments satisfactory to Seller at Invoice prices and according to the terms and conditions thereof, including any transportation charges incurred, paid or furnished by Seller, and subject to such cash discounts as may be shown in current discount sheets.'

Appellants then signed a contract of suretyship, the pertinent portions of which read as follows:

'For and in consideration of The W. T. Rawleigh Company accepting the above Contract, or in consideration of the above named Seller extending further credit to the said Buyer, we, the undersigned, do hereby jointly and severally enter ourselves selves as sureties, and unconditionally promise, guarantee and agree to pay said Seller for any and all goods, wares and merchandise sold said Buyer under the above and foregoing Contract, hereby expressly consenting and agreeing to all the terms, conditions, and provisions thereof; and we also specifically promise and agree to assume and pay any and all prior indebtedness that may be due and owing said Seller on the date of the acceptance of this Contract, as shown by Seller's books, for any and all goods, wares and merchandise previously sold to said Buyer under and by virtue of any and all prior Contracts or agreements; hereby binding our heirs, executors, administrators or assigns. We hereby expressly waive notice of the acceptance of this Contract, and of the shipment of goods to the Buyer, and of extension of credit to the Buyer, and of the extension of time in which to pay for the goods so purchased, and waive all notice of any nature whatsoever. We also agree that any statement made by the Buyer as to the amount of indebtedness due at any time shall be binding upon us. We also agree that it shall not be necessary for the Seller to first exhaust its remedies against the Buyer Before proceeding to collect from us.'

This action was instituted January 21, 1938, more than three, but less than six, years after the contracts were signed. Appellants contend that, because respondent was required to introduce evidence dehors the contract, to show the amount of goods purchased thereunder by Cline and the prices thereof, the cause of action sued upon is based upon a contract partly written and partly oral, and that therefore, under the doctrine as stated by this court in the case of Ingalls v. Angell, 76 Wash. 692, 137 P. 309, it should be held that the contract between the parties is one resting in parol, and an action thereon barred unless commenced within three years. In support of their contention, appellants cite several cases in which contracts were held void under the statute of frauds, because the writings relied upon were incomplete, oral testimony being necessary to show the complete contract between the parties. In the case at bar, the written contract relied upon by respondent is complete, and furnishes an objective standard for the ascertainment of any amount due thereunder from Cline to respondent.

In the case of Curtis v. Sexton, 201 Mo. 217, 100 S.W. 17, 20, it was argued that a contract was not based upon 'a writing * * * for the payment of money or property.' The supreme court of Missouri, being of the opinion that 'the only necessity for going beyond the paper writing to make out a case is to show the performance of the contract on the part of the plaintiff and the breach on the part of the defendant,' held that the action was one founded on a written contract.

The supreme court of Missouri approved the same rule in the case of Missouri, etc., Co. v. American Surety Co., 291 Mo. 92, 236...