W. T. Rawleigh Co. v. Walker

• Decision Date: 13 April 1926
• Docket Number: Case Number: 16476
• Parties: W. T. RAWLEIGH CO. v. WALKER et al.
• Court: Oklahoma Supreme Court

1926 OK 371

246 P. 417

117 Okla. 256

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

Case Number: 16476

Supreme Court of Oklahoma

Decided: April 13, 1926

Syllabus

¶0 1. Guaranty--Validity as to Past and Future Transactions.

Where a contract of guaranty expressly covers past and future transactions, and is supported by a consideration arising out of future transactions, it is good as to the whole.

2. Commerce--Foreign Corporations in Interstate Commerce--Right to Sue.

A nonresident corporation, engaged in the sale of its goods, wares and merchandise f. o. b. out of the state of Oklahoma upon orders of the buyer, transacts its business interstate, and is not required under section 43, art. 9, of the Constitution, to obtain a license or permit to transact such business as a prerequisite to enforce its said contract in the courts of the state.

Commissioners' Opinion, Division No. 3.

Error from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by the W. T. Rawleigh Company, against R. W. Walker, Chas. Griffin, R. F. McFarling, and C. F. Kerker, to enforce a contract of guaranty. Judgment for defendants, and plaintiff appeals. Reversed.

Arrington & Evans, for plaintiff in error.

Saunders & Emerick, for defendants in error.

THREADGILL, C.

¶1 This action was brought by the W. T. Rawleigh Company, a corporation, of Illinois, as plaintiff, against R. W. Walker, Chas. Griffin, C. F. Kerker, and R. F. McFarling, as defendants, to recover on a contract of guaranty. Plaintiff was engaged in the manufacture and sale of drugs and drug store supplies at wholesale, with its principal place of business at Freeport, Ill., and with a branch house at Memphis, Tenn. During the year 1920 plaintiff sold to defendant, R. W. Walker, f. o. b. Memphis, certain goods and wares at wholesale in the sum of $ 1,095, on which said defendants paid the sum of $ 234.80, leaving a balance due of $ 870.20. On January 14, 1921, plaintiff, designated as seller, entered into a contract with R. W. Walker, as buyer, in which it was agreed that the seller would sell its goods to the buyer f. o. b. Memphis, Tenn., or at his option, f. o. b. Freeport, Ill., or at any other point agreed on, upon signed orders for such goods. It was agreed that the buyer should pay the invoice price for the goods, also pay "any balance due the seller at the date of the acceptance of this renewal contract by cash or by installment payments satisfactory to the seller." It was agreed that the contract should expire by limitation on December 31, 1921, and if there was no renewal, the full amount due, under the contract, should be due and payable promptly. It was finally agreed that the written contract includes and constitutes the whole, only, and entire agreement between the parties, and could only be altered, in any particular, by an agreement in writing, and after the corporate seal of the seller was affixed to the same. This contract was signed by W. T. Rawleigh, as president, for the company, and by R. W. Walker for himself, and was marked at the bottom of the left-hand corner "Accepted 1-14-21 at Memphis, Tenn.," and on the same corner is the corporate seal of the company. Under this contract, with no heading or date, but as above stated, the following agreement was made:

"For and in consideration of the sum of $ 1, to me in hand paid, the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above named seller extending further credit to the said buyer, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Rawleigh Company, the above named seller, unconditionally, the payment in full of the balance due or owing said seller on account, as shown by its books at the date of the acceptance of this contract of guaranty by the date of the acceptance of this contract of guaranty by the seller, and the full and complete payment of all moneys due or owing or that may become due or owing said seller, and all indebted ness incurred by the buyer under the terms of the above and foregoing instrument by the buyer named as such therein, and to all of the terms, provisions, and agreements contained in said instruments we fully assent and agree, hereby waiving notice of acceptance by the seller, of this contract of guaranty, and all notice of any nature whatsoever, and agree that the written acknowledgment by said buyer of the amount due or owing on his account, or that any judgment rendered against him for moneys due the seller, shall in every and all respects bind and be conclusive, jointly or severally, against the undersigned. And we further agree that in any suit brought on this contract of guaranty by the seller no other or further proof shall be required of it than to establish the amount or sum of money due and owing to it from the said buyer, and, when so proven, shall be conclusive and binding upon the undersigned, and further, that it shall not be necessary for said seller in order to enforce this contract of guaranty to first institute such against said buyer nor exhaust its legal remedies against him. And agree that any extension of the time of payment or payments to said buyer shall not release us from liability under this contract of guaranty.

"It is hereby mutually understood and agreed that this contract of guaranty is conclusive and binding on the party or parties who sign it, whether the same is signed by any other party or parties, or not, and that any statement or representation made by any person as to the undertaking of the guarantor or guarantors other than as herein expressed, or as to who or how many parties are to sign this guaranty, shall in no wise affect the rights of the company; and it is mutually understood that this is to be a continuing guaranty; and any notice in any way affecting the responsibility or liability of the signers hereunto, in order to become effective and binding upon the above-named seller, shall be reduced to writing and delivered by registered mail to the office of the said seller at Memphis, Tenn."

¶2 This contract was signed by Chas. Griffin, R. F. McFarling, and C. F. Kerker. These men were certified by three men in the banking business in Shawnee as worthy of confidence. There was an indorsement on the entire agreement as follows:

"Town Trade 1921 Renewal Contract. Renewal contract with name--R. W. Walker, Okla. Received Dec. 13, 1920. Investigated Approved by Accepted Jan. 14, 1921. Copy mailed. Exm'd & O. K'd by R. M. N.

¶3 The buyer's orders were filled by the plaintiff for the year 1921, and, at the end of the year, the said buyer was indebted to the plaintiff, in addition to the original indebtedness of $ 870.20, the sum of $ 76.57, making the sum total of $ 946.77, for which it brings this action against the defendants upon the contract of guaranty. Defen...