W.T. Rawleigh Co. v. Thoroughman

• Decision Date: 18 December 1928
• Citation: 227 Ky. 35,11 S.W.2d 1006
• Parties: W. T. RAWLEIGH CO. v. THOROUGHMAN et al.
• Court: Kentucky Court of Appeals

11 S.W.2d 1006

227 Ky. 35

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

Court of Appeals of Kentucky

December 18, 1928

Appeal from Circuit Court, Bracken County.

Action by the W. T. Rawleigh Company against E. C. Thoroughman and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

W. A Byron, of Brooksville, and M. Hargett, of Augusta, for appellant.

C. R Barker and Silas Jacobs, both of Brooksville, for appellees.

McCANDLESS J.

The W T. Rawleigh Company, a corporation engaged in the manufacture of medicines and cosmetics, located at Freeport, Ill., sued Roy Applegate as principal and E. C. Thoroughman and F. A Applegate as sureties to recover a balance of $680 due it on sales of merchandise made by it to Roy Applegate. Various defenses were interposed by the parties, which will be presently noted. The case was heard and tried by the court, who rendered judgment in favor of plaintiff against Roy Applegate for the full amount of its claim, but sustained the defense of Thoroughman and F. A. Applegate, and dismissed the petition as to them. The W. T. Rawleigh Company appeals.

On January 2, 1923, Roy Applegate and the W. T. Rawleigh Company executed a contract in which the parties were named as buyer and seller respectively, and in which the buyer undertook to purchase goods at his option from the seller during the ensuing 12 months and sell same at retail in Bracken county, Ky. goods to be delivered to him f. o. b. Freeport, Ill.-

"The buyer to pay the seller the invoice price for all articles so purchased under the agreement, subject to certain discounts; and any balance due the seller at the date of the acceptance of any renewal contract. * * * Either party may at any time before the expiration of this contract by written notice, terminate this agreement, and when so terminated the account then due and owing shall become immediately due and payable. If not so terminated, this agreement shall expire by limitation on the 31st of December 1923. * * * It is mutually understood 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 in the aforesaid literature, letters, booklets, bulletins, 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, nor never has been an agent or representative of the seller but in business for himself.

And it is further understood and agreed by and between the parties hereto that this contract includes and does and shall constitute the sole, only and entire agreement between the parties hereto, and further that this contract cannot and shall not be changed or modified in any particular whatsoever by any employé or representative of the seller in any capacity, unless any such change or modification shall first be specifically reduced to writing and signed by both of the parties hereto and then any such change or modification shall only be effective after the corporate seal of the seller shall have been duly affixed thereto."

Concurrent with the execution of the above contract, Thoroughman and F. A. Applegate, as sureties, executed a writing, unconditionally guaranteeing the Rawleigh Company all indebtedness incurred by the buyer under the terms of the above and foregoing instrument, and fully assenting to the terms, provisions, and agreements contained in that instrument.

In their answer the sureties admitted the balance due ...