W. T. Rawleigh Medical Co. v. Ellis

• Decision Date: 11 February 1918
• Docket Number: 155
• Citation: 201 S.W. 110,132 Ark. 421
• Parties: THE W. T. RAWLEIGH MEDICAL COMPANY v. ELLIS
• Court: Arkansas Supreme Court

201 S.W. 110

132 Ark. 421

THE W. T. RAWLEIGH MEDICAL COMPANY v. ELLIS

No. 155

Supreme Court of Arkansas

February 11, 1918

Appeal from Ouachita Circuit Court; C. W. Smith, Judge; reversed.

Judgment reversed.

J. W Warren, for appellant.

1. The note sued on was given in settlement of an account for which appellee was liable. No payment nor fraud was shown. 129 Ark 384.

2. The contract was for a sale of goods and is unambiguous. The sale was made in Illinois on orders. 126 Ark. 597; 129 Ark. 384.

3. The court erred in its instructions. Parol evidence was not admissible to vary the terms of a written instrument. 181 S.W. 273; 188 Id. 566; 190 Id. 564; 182 Id. 106; 183 Id. 541.

4. Settlement of the account was a sufficient consideration for the execution of the note. 44 Ark. 556; 128 Ark. 10.

Thos W. Hardy, for appellees.

1. Appellant is a foreign corporation and had not complied with the laws of Arkansas and was doing business in this State. 193 S.W. 497; 115 Ark. 176; 163 S.W. 757; 128 Ark. 211.

2. The contract is ambiguous and uncertain as to whether Ellis was an agent or purchaser. The issues were properly submitted to the jury. 115 Ark. 176; 124 Id. 543.

3. The case was submitted to the jury under proper instructions and their verdict is conclusive.

OPINION

SMITH, J.

The parties to this litigation entered into the following contract:

"Whereas, E. P. Ellis, of Camden, Ark., desires to purchase of W. T. Rawleigh Medical Company, of Freeport, Ill., on credit and at wholesale prices to sell again to consumers, medicines, extracts, spices, 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 hereinafter 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 the 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 10th of each month, he is to be allowed a discount of 3% from current wholesale prices. When the sale or purchase of goods under this contract shall be permanently discontinued for any reason or upon any notice given by either party, he further agrees to settle in cash, within a reasonable 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 prices; also, to notify him promptly of any change in wholesale or retail prices.

"Said company 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 own 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 method of selling its products to consumers.

"This contract is subject to acceptance at the home office of the company, and it 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 E. P. Ellis or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account.

"Accepted March the 11th, 1911.

"The W. T. Rawleigh Medical Company,

By W. T. Rawleigh, President.

"E. P. Ellis.

"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 shall not release us from liability under this guarantee.

"E. P. Purifoy,

"P. B. Greening,

"W. T. Ellis,

"Metza D. Hale."

Pursuant to the terms of this contract, merchandise of the kind there named was furnished to E. P. Ellis, and, after all proper credits had been given and allowed, there finally remained due the sum of $ 269.96, for which sum a note was executed to the order of the medical company, and this suit was brought to enforce the payment of that note; but the right to maintain it is denied upon the ground that the medical company, the plaintiff below and appellant here, is a foreign corporation and has not complied with the laws of this State authorizing it to do business in this State. The medical company admits that it is a foreign corporation, and that it has not complied with the laws of this State authorizing it to do business here; but it denies that it has been doing business in this State.

It is asserted on the one hand, that the contract between the parties, out of which this...