W.T. Rawleigh Med. Co. v. Van Winkle

• Decision Date: 28 February 1918
• Docket Number: No. 9477.,9477.
• Citation: 67 Ind.App. 24,118 N.E. 834
• Parties: W. T. RAWLEIGH MEDICAL CO. v. VAN WINKLE et al.
• Court: Indiana Appellate Court

67 Ind.App. 24

118 N.E. 834

W. T. RAWLEIGH MEDICAL CO.

v.VAN WINKLE et al.

No. 9477.

Appellate Court of Indiana, Division No. 2.

Feb. 28, 1918.

Appeal from Circuit Court, Johnson County; Wm. E. Deupree, Judge.

Action by the W. T. Rawleigh Medical Company against Robert Van Winkle and others. From a judgment for defendants, plaintiff appeals. Reversed, with instructions to sustain plaintiff's motion for new trial.

Hall & Pell, of Shelbyville, for appellant. Miller & White, of Franklin, for appellees.

CALDWELL, J.

Appellant, a corporation of Freeport, Ill., brought this action against appellee Robert Van Winkle, and his coappellees, William F. McCord, Jonathen Allen, and Frank Van Winkle, to recover for goods sold and delivered to appellee Robert Van Winkle under a certain written contract executed by him and appellant November 20, 1908, the performance of which by Robert Van Winkle was guaranteed by his coappellees in writing indorsed on the contract. A trial resulted in a verdict and judgment in favor of appellees.

The sole error assigned is the overruling of the motion for a new trial, under which assignment the sufficiency of the evidence is challenged. To determine the sufficiency of the evidence requires an outline of the issues. The contract and guaranty are exhibited with the complaint. The former is in substance as follows: That Robert desired to purchase of appellant at wholesale prices, on credit, to sell to consumers at retail prices fixed by appellant, medicines, stock foods, etc. Robert agreed to pay for the goods by remitting to appellant weekly one-half of his receipts, and to make payment in full within a reasonable time after the termination of the contract for any cause. Appellant agreed to fill all reasonable orders made by Robert for goods, and to deliver such goods on board cars at Freeport, Ill., provided his account was in satisfactory condition, and to furnish to him free of charge a reasonable amount of advertising matter, report and order blanks, and to give him free of charge, after he began work, instructions and advice through letters, bulletins, and booklets, as to the best methods of selling the goods to consumers. The contract specified that it was to be in force only so long as Robert's account and the amount of his purchases were satisfactory to appellant, and that Robert or his guarantors might be released from the contract at any time by paying in cash the balance due appellant on the account. A bill of particulars filed with the complaint discloses an account stated under date of December 30, 1911, amounting to $1,488.92 and goods thereafter purchased from time to time up to March 12, 1913, aggregating $887.73, or a total of $2,376.65, with credits of weekly payments between January 1, 1912, and October 9, 1913, aggregating $1,476.95, leaving a net balance due appellant of $899.70.

Appellee Robert Van Winkle answered in four paragraphs: First, general denial. Second, in substance that the account sued on was composed of two items: First, of goods received form appellant with directions to deliver them to prospective customers as samples, and not to be paid for if they proved to be worthless; that they did prove to be worthless and were not paid for; second, goods amounting to $131.32 which were returned to appellant by its direction, and which were received and accepted by appellant. The third paragraph was to the effect that the goods sued for were worthless. The fourth paragraph, payment. The other appellees answered in five paragraphs: First, general denial; second, practically the same as Robert's third; third and fifth, that the goods sued for were delivered to Robert under a new contract made without the knowledge or consent of such appellees, by the terms of which Robert was required to and did deliver such goods to prospective customers as free samples, and not to be paid for, and that such customers did not pay for them; fourth, that in violation of the written contract between appellant and Robert, the former sold to the latter the goods sued for when his account was not in a satisfactory condition.

[1] Appellant introduced evidence making a prima facie case, to the effect that it sold and delivered goods to Robert from time to time after the execution of the written contract, and under its terms, and that Robert made weekly payments thereunder, and that on January 1, 1912, the balance due on Robert's account after deducting all weekly payments was $1,488.92. Under the date of January 2, 1912, Robert acknowledged in writing over his signature that such balance was correct; that thereafter from time to time the appellant sold and delivered to Robert goods amounting to $887.73, the last sale having been made on March 12, 1913; that the contract between the parties was terminated September 27, 1913; and that after January 4, 1912, Robert made weekly payments on his account amounting to $1,476.95, the last payment having been made October 9, 1913, and the balance due being $899.70.

There was no evidence that any part of the sum sued for had been paid. There was some evidence that of the goods sued for about $16 worth at the retail price, or $8 worth at the wholesale price, was of no...