Watkins Co. v. Thompson et al.

• Decision Date: 06 April 1936
• Docket Number: No. 18316.,18316.
• Citation: 93 S.W.2d 1100
• Parties: J.R. WATKINS COMPANY, RESPONDENT, v. CLIFFORD C. THOMPSON ET AL., DEFENDANTS, ALTE WATKINS, EXECUTRIX, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1100

J.R. WATKINS COMPANY, RESPONDENT, v. CLIFFORD C. THOMPSON ET AL., DEFENDANTS, ALTE WATKINS, EXECUTRIX, APPELLANT.

No. 18316.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court of Sullivan County. — Hon. Paul Van Osdol, Judge.

REVERSED AND REMANDED (with directions).

L.E. Atherton for respondent.

Platt Hubbell for appellant.

SHAIN, P.J.

This is an action by the plaintiff seeking to recover from the defendant as guarantor for a debt of $679.48 owed to plaintiff by reason of credit extended to Clifford C. Thompson for goods sold to the said Thompson by plaintiff.

The plaintiff, a corporation of the State of Delaware, is designated as a wholesale merchant that sells products to traveling merchants or vendee of its goods. It appears that prior to February 25, 1931, the said Thompson had been a vendor of plaintiff's goods and had gotten into debt in the full amount involved herein prior to that date.

There is shown in evidence an instrument of writing executed and signed by plaintiff by its assistant treasurer. This instrument consists of ten clauses and is somewhat restrictive of Thompson's right to purchase goods from the plaintiff. These restrictions are frequently subject to waiver by the plaintiff without notice to sureties.

Paragraphs one and two of this instrument are as follows:

"1. That in consideration of the promise and Agreements of the Purchaser hereinafter contained, to be kept and performed by him, the Company agrees, unless prevented by fire, strikes, or other cause, to sell and deliver to the Purchaser, at its current wholesale prices, free on board cars at Winona, Minnesota, or at its option, at any of its other regular places of shipment, such goods and other articles manufactured or sold by it, as the Purchaser may reasonable require for sale, from the date hereof, until the first day of June, 1932, in the locality in which he is now engaged, or intends to engage, in business, a description of which locality he agrees to furnish and deliver to the Company in writing prior to its acceptance of this agreement; but the furnishing of such description may be waived by the Company at its election, without notice to the Purchaser or the sureties hereon.

"2. And in consideration thereof, the Purchaser agrees to buy from the Company the goods reasonably required by him as aforesaid; and agrees to furnish it to complete, regular, weekly, written reports, showing separately the amounts of his cash sales, time sales, and collections; which reports however, or any of them, may be waived by the Company without notice to the sureties hereon, and he also agrees to furnish a complete financial statement when requested to do so."

When the document is read as a whole, we conclude that the same is peculiarly adapted to the plaintiff's method of doing business in this State. The document so restricts the purchaser as to his territory, as to his right to purchase, and as to the general method of business as to constitute a condition wherein the plaintiff retains the powers of a master over its "Purchaser" without, as interpreted by the plaintiff, making the purchaser and vendor of its products its agent.

The above referred to document is executed by the assistant treasurer of the plaintiff corporation. Directly under the signature of the assistant treasurer, the following appears: "Purchaser sign here In Ink Clifford Cabe Thompson, Full name, not initials." Directly following the above, the following paragraph appears:

"In consideration of the execution of the foregoing Agreement by The J.R. Watkins Company, which we have read, or heard read, and hereby agree and assent to, and its promise to sell, and the sale and delivery by it, to the Purchaser, as vendee, of goods and other articles, and the extension of the time of payment of the indebtedness due from him to said Company as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this Agreement, notice of default or nonpayment and waive action required, upon notice, by any statute against the Purchaser; and we jointly, severally and unconditionally promise, agree and guarantee to pay said indebtedness, the amount of which is now written in said Agreement, or if not written therein, we hereby authorize the amount of said indebtedness to be written therein; and we jointly, severally and unconditionally promise to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time and place, and in the manner in said Agreement provided. And we further severally agree that, in case of the death of one or more of us, the undersigned sureties, before the expiration or termination of this Agreement, the liability of the surviving surety, or sureties, shall continue until notice of the death of the deceased surety, or sureties, is given to the Company, at Winona, Minnesota, by registered mail."

The name of John T. Watkins appears as signing as surety. There was an acknowledged and expressed indebtedness of $679.48 when John T. Watkins signed.

The purchasing vendee and John T. Watkins and one John C. Lomax, another surety, are the named defendants in the suit filed by plaintiff seeking to recover the indebtedness.

The defendants John T. Watkins and John C. Lomax filed separate answers.

For the reason that questions of pleadings are raised as to the John T. Watkins' answer, we include said answer herein as follows:

"Now comes Defendant John T. Watkins and for his Separate Answer to the Petition of the Plaintiff, states the following facts:

"At all times herein mentioned Clifford C. Thompson mentioned in the Petition of the Plaintiff, was the agent of the Plaintiff, and was acting for the Plaintiff with reference to the matters herein mentioned.

"At all times herein mentioned, the Defendant John T. Watkins has been and now is, an aged, infirm man, and defective in his eyesight, and not able to read the paper-writing on which this action is based. The Defendant Clifford C. Thompson, the agent of the Plaintiff, had induced the Defendant John T. Watkins to repose confidence in him the said Clifford C. Thompson and to believe that said Clifford C. Thompson is an honest man.

"Plaintiff's agent, Clifford C. Thompson watched for an opportunity to find the Defendant John T. Watkins alone and with no one else near him. Finding the Defendant John T. Watkins alone, the said Clifford C. Thompson went to the home of the Defendant John T. Watkins and represented to the Defendant John T. Watkins that the paper-writing on which this action is based is a letter of recommendation reciting that said Clifford C. Thompson is an efficient, capable and trustworthy salesman and that his services as salesman in Sullivan County, Missouri, had been satisfactory to the customers of the Plaintiff J.R. Watkins Company.

"Said Clifford C. Thompson represented to the Defendant John T. Watkins that a change or addition was being made in his territory, and that he needed to renew his contract with the Plaintiff corporation, thus bringing about the necessity for a letter of recommendation from the customers of the Plaintiff.

"Defendant John T. Watkins signed said paper-writing in the belief that it is a letter of recommendation only, and, relying on said representations of said Clifford...