W. T. Rawleigh Medical Co. v. Abernathy

• Decision Date: 03 July 1917
• Docket Number: No. 14669.,14669.
• Citation: 196 S.W. 1042
• Parties: W. T. RAWLEIGH MEDICAL CO. v. ABERNATHY et al.
• Court: Missouri Court of Appeals

196 S.W. 1042

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

No. 14669.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs June 4, 1917.

Opinion Filed July 3, 1917.

Rehearing Denied July 17, 1917.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Action by the W. T. Rawleigh Medical Company against B. F. Abernathy and others. Verdict for plaintiff, motion by defendants for new trial sustained, and plaintiff appeals. Affirmed, and cause remanded.

Edward Robb, of Perryville, for appellant. Killian & Bond, of Perryville, for respondents.

REYNOLDS, P. J.

This is an action on a contract between plaintiff and one B. F. Abernathy, the other defendants being his guarantors. Briefly, the contract purports to be one of purchase and sale, Abernathy agreeing to purchase from time to time certain medical proprietary articles manufactured and put on the market by plaintiff with the idea of a resale. Plaintiff claims that as the result of their dealings Abernathy owes it a balance of $336.40. Averring that the account had been presented to Abernathy prior to May 24th 1913, and that he had failed to pay it, and averring that on that date plaintiff had demanded payment of the amount from the guarantors, and of the executor of one of them who had died, judgment is demanded for the amount against all of the defendants. Abernathy appears to have answered the original petition but the cause was subsequently dismissed as to him. The other defendants, guarantors, answered the original petition, averring that their codefendant Abernathy had submitted to them a contract signed by him, which was to the effect that Abernathy was to buy medicines and other goods manufactured by plaintiff from plaintiff on credit and at wholesale prices to sell again to consumers, he paying therefor in installments and rendering stated accounts with remittances of one-half of all moneys received from such sales until his account with the company was paid. Admitting that they had signed the contract guaranteeing the faithful performance of it by Abernathy, and that it contained a clause stating that it was subject to the approval of plaintiff, they aver that at the time it was presented to these defendants it had not been signed by plaintiff and that it had been prepared by plaintiff; that at the date of the contract, to-wit, June 11th, 1911, Abernathy and these defendants were all residents of the county of Perry in this state; that Abernathy continued to reside in that county until about April 30th, 1912, and that at no time between the date of the contract and April 30th, 1912, did he buy or sell any goods manufactured by plaintiff but that afterwards, on or about May 1st, 1912, Abernathy removed to the state of Tennessee, several hundred miles distant from Perry county, and that all the medicines and other goods sent by plaintiff to Abernathy were shipped to him in the state of Tennessee after the first of May, 1912; that these defendants were never notified of the approval and acceptance of the contract by plaintiff and had no notice or knowledge of the sale and shipment of the goods thereunder to Abernathy in the state of Tennessee, wherefore these defendants aver that they are not liable on the alleged guarantee.

For further answer the defendant guarantors aver that plaintiff varied the contract as signed by them as guarantors; that by the terms of their contract plaintiff was to sell the goods on credit to Abernathy and Abernathy was to sell the same to consumers, but that the plaintiff, wholly disregarding the contract, did not permit Abernathy to use his own judgment in selling goods nor permit him to sell for cash, but by instructions, commands and threats compelled him to sell them on credit to all persons, to give large quantities away in free trials, and to deposit goods for trial with every housekeeper who would permit him to do so; that instead of Abernathy being the purchaser of the goods from plaintiff for resale, as the contract in terms provided, Abernathy was constituted by plaintiff its agent for the sale of goods and was treated, commanded and ordered by plaintiff, as its agent, in all matters pertaining to the sale and other disposition of the goods; that plaintiff warned Abernathy that it was holding him responsible for carrying on its work according to its instructions and, among other instructions of like character, instructed Abernathy to furnish goods and credit to all farmers and householders, and that if he did not extend credit liberally, he would not only lose money by his too conservative policy, but would lose his position with plaintiff; that Abernathy was guided by these instructions in his work for plaintiff and faithfully followed them out, and whatever loss plaintiff has suffered in or through Abernathy, was a loss occasioned by plaintiff and for which these defendants are not liable.

There was a reply filed to this, denying the allegations generally and setting up that by the contract of guarantee, defendants had expressly waived acceptance of all notice of acceptance, etc., and denies that plaintiff had varied the contract as signed by defendants as guarantors, or the contract as signed by the defendant Abernathy as principal, and denies that Abernathy was ever made the agent or treated as the agent of plaintiff in the sale of plaintiff's goods, and avers that the only advice and instructions given Abernathy in regard to...