W. T. Rawleigh Medical Co. v. Woodward

• Decision Date: 02 May 1921
• Docket Number: No. 13938.,13938.
• Citation: 230 S.W. 647
• Parties: W. T. RAWLEIGH MEDICAL CO. v. WOODWARD et al.
• Court: Missouri Court of Appeals

230 S.W. 647

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

No. 13938.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

"Not to be officially published."

Action by the W. T. Rawleigh Medical Company against one Hill and R. C. Woodward and others. From a judgment in favor of the defendants last named, plaintiff appeals. Affirmed.

W. S. Herndon, of Plattsburg, for appellant. Frost & Frost, and Daniel H. Frost, all of Plattsburg, for respondents.

TRIMBLE, P. J.

Plaintiff, an Illinois corporation, manufactures and sells family medicines, toilet articles, veterinary preparations, and other remedies for man and beast. In theory, it sells these things at wholesale to various men throughout the country, each having a certain territory, who thereupon travel over the same, peddling the goods to whomsoever they can induce to buy. In actual practice, and in view of the manner in which these men are controlled and governed by directions and instructions, they are in reality traveling agents, selling the goods and remitting in cash each week an amount equal to at least one-half of the receipts. However, we shall treat the case herein upon the theory supported by the wording of the contract between plaintiff and the traveling vendor of its products, the defendant Hill.

The suit herein is against him as a purchaser of goods on account for resale, as above stated, and against the other defendants as guarantors of the payment thereof by Hill. It is alleged that, under the contract with Hill, plaintiff sold and delivered to him between the _____ day of October, 1909, and the 6th day of October, 1913, goods of the value of $2,241.20 as per an itemized account attached to the petition, of which amount Hill paid $1,869.31, leaving a balance due of $371.89 which he has failed and refused to pay, and the other defendants are asked to pay same as guarantors.

The contract between plaintiff and Hill is dated at Freeport, Ill., October 4, 1909, and the last clause thereof says:

"This contract is subject to acceptance at 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 the company," etc.

Below the signatures of the president of the plaintiff company and Hill appears the following:

"In consideration of the W. T. Rawleigh Medical 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."

The above-quoted matter bore no date, but was signed by the other defendants herein. Suit was instituted in Platte county some time in 1915, and change of venue was taken by agreement to Clinton county. At the April term, 1916, of the Clinton circuit court, plaintiff filed a motion to have the cause referred, based upon the ground that determination of the issues required the "examination of a long account and the examination of a large amount of documentary evidence." At the April term, 1918, by agreement of parties, the cause was referred to a referee.

At the April term, 1919, said referee made his report, stating findings of fact and conclusions of law, and found there was due plaintiff the sum of $371.89 with interest from March 27, 1915, at 6 per cent., aggregating a total of $461.79, and recommended that judgment therefor be rendered against all the defendants.

Exceptions to the report were duly filed, and at the April term, 1920, the court sustained the exceptions as to the defendants Woodward, Doniphan and Stoutimore, but confirmed the report as to Hill, and rendered judgment against him, but discharged the other defendants. The plaintiff thereupon appealed.

The first question to be disposed of is whether the referee's report is binding, and has the status and effect of a special verdict, or whether such findings can be reviewed. It is urged that the case is not one in which a compulsory reference could have been had, and hence, there being substantial evidence in support of it, the report of the referee and his findings therein are final and binding on the parties. The record, however, discloses that the account was made up of an itemized statement of a vast number of articles bought in a running account covering a period of four years, and taking 20 pages of typewriting to set it forth, and to prove which 90 orders, 90 invoices, and 88 bills of lading were introduced, besides a large number of other exhibits, including regular orders, weekly reports, and remittances throughout the above-named period. The plaintiff's motion to refer says it is a long account, justifying a reference, and we think it was one in which a compulsory reference could have been made, and was one within the category of section 1426, R....