W.T. Rawleigh Medical Co. v. Walker

• Citation: 16 Ala.App. 232,77 So. 70
• Decision Date: 13 November 1917
• Docket Number: 6 Div. 114
• Parties: W.T. RAWLEIGH MEDICAL CO. v. WALKER et al.
• Court: Alabama Court of Appeals

77 So. 70

16 Ala.App. 232

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

6 Div. 114

Court of Appeals of Alabama

November 13, 1917

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by the W.T. Rawleigh Medical Company against W.T. Walker and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Action against guarantors in assumpsit for breach of a guaranty by the original obligor in a contract to pay an amount due plaintiff under the terms of the contract. From a judgment for defendants, plaintiff appeals.

O Kyle, of Decatur, and W.E. James, of Cullman, for appellant.

Callahan & Harris, of Decatur, for appellees.

SAMFORD J.

Plaintiff and one S.S. Walker entered into a contract which the defendants guaranteed, the contract and guaranty being as follows:

"Whereas S.S. Walker, of Cullman, Alabama, desires to purchase of the W.T. Rawleigh Medical Company of Freeport Illinois, on credit and at wholesale prices to sell again to consumers, medicines, extracts, spices, soaps, toilet articles, perfumes, polishes, stock dip and disinfectant stock preparations and poultry supplies and other goods manufactured and put up by it, paying his account for such goods in installments as hereafter provided.

"Therefore, he hereby agrees to sell no other goods than those sold him by said company, to sell all such goods at regular retail prices to be indicated by it, and to have no other business or employment.

"He further agrees to pay said company for all goods purchased under this contract the current wholesale prices of such goods by remitting in cash each week to said company an amount equal to at least one-half the receipts from his business until his account is balanced, and for that purpose as evidence of good faith he shall submit to said company weekly reports of his business; provided, however, if he pays his account in full on or before the tenth day of each month he is to be allowed a discount of three per cent. (3) from current wholesale prices. When the sale or purchase of goods under this contract shall be permanently discontinued for any reason or upon notice given by either party, he further agrees to settle in cash, within a reasonable length of time the balance due said company on account.

"Unless prevented by strikes, fires, accidents or causes beyond its control said company agrees to fill and deliver on board cars at place of shipment, his reasonable orders, provided his account is in satisfactory condition, and to charge all goods shipped him under this contract to his account at current wholesale; also to notify him promptly of any change in wholesale or retail prices.

"Said company further agrees to furnish him free of charge on board cars at place of shipment, a reasonable amount of first-class advertising matter, report and order blanks, and printed return envelopes for his use in conducting his business; also to give him, free of charge after he has begun work, suggestions and advice, through letters, bulletins, and booklets, as to the best methods of selling its products to consumers.

"This contract is subject to acceptance of the home office of the company and is to continue in force only so long as his account and the amount of his purchases are

satisfactory to said company; provided, however, that said S.S. Walker or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account.

"The W.T. Rawleigh Medical Company.

"By W.T. Rawleigh, President. [Seal.]

"Accepted Dec. 10, 1910, at Freeport, Illinois.

"S.S. Walker.

"In consideration of the W.T. Rawleigh Company extending credit to the above-named person, we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time or change of territory shall not release us from liability hereon.

Names Occupation P.O. Address

W.T Walker Farming Logan, Ala., No. 1.

O.W. Peinhardt Farming Cullman, " No. 1.

J.S. York Farming Cullman, " No. 1.

"The above guarantors are entitled upon request at any time to a statement of salesman's account."

Walker received under this contract $1,181.87 worth of goods, and failed to pay $701.12 of the amount. It is alleged that Walker is insolvent.

The foregoing contract, according to its recitals, was completed in Illinois, and therefore is to be construed according to the laws of that state. Walker v. T. & G. Forbes, 25 Ala. 150, 60 Am.Dec. 498; Southern Fire Co. v. Garden City Co., 223 Ill. 616, 79 N.E. 313, 7 Ann.Cas. 50. The only defendants to this action are the guarantors, the original obligor not being sued; hence there is not a misjoinder of parties defendant.

The action in the first count is for a failure of the original obligor to remit each week as he agreed to do under the contract aggregating the amount of $701.12. The suit is against the defendants as guarantors on their...