Watkins v. Donnell

• Decision Date: 02 November 1915
• Parties: JAMES A. WATKINS et al., Respondents, v. JOHN W. DONNELL et al., Defendants; R. L. ZEIGLER, Claimant, Appellant
• Court: Missouri Court of Appeals

179 S.W. 980

192 Mo.App. 640

JAMES A. WATKINS et al., Respondents, v. JOHN W. DONNELL et al., Defendants;

R. L. ZEIGLER, Claimant, Appellant

Court of Appeals of Missouri, St. Louis

November 2, 1915

Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

T. M Pierce and S. P. McChesney for appellant.

(1) The contract between the appellant and the Donnell Company created an agency for the doing of business for the Donnell Company in South Carolina. Willcox & Gibbs Sewing Machine Co. v. Ewing, 141 U.S. 627, 35 Law. Ed. 882. (2) The contract between the appellant and the Donnell Company was void because the Donnell Company had not complied with the laws of South Carolina regulating the licensing of foreign corporations. 1 Laws of South Carolina, 1902, ch. XLIV, p 680; British American Mortgage Co. v. Jones, 77 S.C. 443, 58 S.E. 417; Chattanooga National Building & Loan Ass'n. v. Denson, 189 U.S. 408, 47 Law. Ed. 870; Stegall v. Pigment & Chemical Co., 150 Mo.App. 287; Ehrhardt v. Robertson Bros., 78 Mo.App. 404; American Steel & Wire Co. v. Speed, 192 U.S. 500, 48 Law. Ed. 538. (3) The contract between the appellant and the Donnell Company being void, as violative of the laws of South Carolina, the appellant was entitled to receive back from the Donnell Company all the money paid by him under said contract and the value of his time, so that the appellant might be restored to his original financial condition at the time said contract was executed. Roeder v. Robertson, 202 Mo. 522.

Fred Armstrong, Jr., for receiver.

(1) When a contract or agreement of parties is committed to writing and is complete on its face, it is conclusively presumed that all prior negotiations were merged in the writing and parol evidence is inadmissible to contradict or vary the terms of the contract or agreement as shown by the writing. Griffin v. Miller, 188 Mo. 327; New York Life v. Wolfson, 124 Mo.App. 286; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 25. (2) Where the various provisions of a contract are not ambiguous in themselves, but are contradictory of each other, the meaning of the contract is a matter of law to be determined by the court from the face of the contract itself, and extrinsic evidence, whether of preliminary negotiations or of other matters, is inadmissible. Such a contradictory contract, if at all properly called "ambiguous," is such because of "patent ambiguity" and such ambiguity cannot be explained by parol. Bent v. Alexander, 15 Mo.App. 181, 9 Cyc. Contracts, 583. (3) The contract in suit, on its face, is a sales contract to be performed in St. Louis. Henry Bill Pub. Co. v. Durgin, 101 Mich. 458; Willcox & Gibbs Co. v. Ewing, 141 U.S. 627; Arbuckle Bros. v. Kirkpatrick, 98 Tenn. 221, 36 L. R. A. 285; Conn v. Chambers, 123 N. Y. App. Div'n 298, 107 N.Y.S. 976; in Vereinigte Pinsel-Fabriken v. Rogers, 52 A.D. 529, 65 N.Y.S. 478; Snelling v. Arbuckle Bros., 104 Ga. 362; Arbuckle Bros. v. Gates, 95 Va. 802; 31 Cyc. 1198. (4) Where a contract is fairly and reasonably open to two constructions, one making it legal and the other illegal, the former must be adopted. Wiggins Ferry Co. v. C. A., 128 Mo. 224; Glover v. Insurance & Security Co., 130 Mo. 173; State ex rel. v. City of Neosho, 203 Mo. 40; Rogers v. Foundry Co., 167 Mo.App. 228. (5) Granted that the contract did contemplate doing business in South Carolina so as to necessitate the Donnell Company securing a license to do business in that State, the contract was not void because at the time of execution the Donnell Company did not have such license; nor did the contract become void because the Donnell Company did not subsequently take out such license. It was not void for illegality, nor was it void because impossible of performance, for the Donnell Company might at any time have taken out such license. At most the Donnell Company is liable only for a breach of contract. Hogan v. City of St. Louis, 176 Mo. 149; Wulfing v. Cork Co., 250 Mo. 723; 19 Cyc. 1270, 1275; Galletley v. Strickland, 74 S.C. 394.

ALLEN, J. Nortoni, J., concurs; Reynolds, P. J., not sitting.

OPINION

ALLEN, J.

--In 1907 the appellant, R. L. Zeigler, instituted in the circuit court of the city of St. Louis an action against the Donnell Manufacturing Company, a corporation. During the pendency of this suit a receiver was appointed for said corporation, and on April 9, 1910, appellant filed with the receiver a claim based upon his said alleged cause of action. The matter was referred to a referee who in due course made report of his findings, recommending that the claim be disallowed. The claimant's exceptions to the referee's report were overruled by the circuit court, and the cause is here on his appeal.

In February, 1907, appellant, a resident of South Carolina, having seen an advertisement of the Donnell Manufacturing Company, of St. Louis, whereby the latter advertised for a man to manage a branch wholesale business, at a salary of $ 1800 per year, wrote said company making application for the position. The company promptly replied, and further correspondence was had between the parties. Appellant furnished "references," to whom the company wrote receiving satisfactory replies. On or about March 21, appellant, at the company's suggestion, and it paying one-half of his expenses, came to the city of St. Louis, for a "personal interview," and on the following day a written contract was entered into between him and said company in terms as follows:

"This Agreement, made and entered into this twenty-second day of March, 1907, by and between the Donnell Manufacturing Company of the city of St. Louis, and State of Missouri, party of the first part, and R. L. Zeigler, party of the second part, of the city of Allendale, State of South Carolina, WITNESSETH:

"That the parties hereto, after a personal interview and examination by said second party of the goods manufactured and sold by said first party, have embodied the result of all previous and present negotiations, representations and understandings into this writing, said agreement being as follows, to-wit:

"1. That said first party engages the said second party in the capacity of sales agent, to conduct a sales agency for the sale of its goods and specialities in the city of Columbia State of South Carolina, for a period of two years, that is to say twenty-four months from the date that the sales office is opened for the second party, as hereinafter provided for, and for and in consideration of the faithful performance and fulfillment by said second party of each and all of the several agreements hereinafter contained and agreed to between the parties, said first party agrees to pay to the party of the second part one hundred fifty dollars per month, payable as hereinafter provided, and five per cent. additional commission on all sales of said office during the continuance of this contract.

"2. The party of the first part further agrees at its own expense, to open and fit up an office or sales room for the use of the second party at said city, in which the party of the second part shall carry on said business, as herein provided for, and the party of the first part further agrees to sell and deliver to said second party, such stock of goods as it manufactures and sells, as the trade of the said office may require from time to time at forty per cent. discount from retail prices, and to supply merchandise at the same rate to the party of the second part for all moneys received from said second party, and to instruct said second party in the details of handling the business so far as is necessary in the estimation of the said first party. At the expiration of the term as above and fulfillment of this agreement by said second party, the party of the first part further agrees to repurchase from said second party all stock that he may have on hand and which was purchased from said first party, paying therefor in cash the same prices as originally charged him, said stock to be in fairly good condition.

"In consideration of the foregoing and subsequent agreements herein, the said second party agrees to the following:

"1. The said party of the second part will and does hereby engage and agree to become sales agent for the goods manufactured and sold by the party of the first part, as heretofore stipulated, for a term of two years, and that he will devote his whole time and best efforts to advancing the success of the business and to satisfactorily perform the duties herein required of him, dealing honorably with the party of the first part, the public and all persons with whom he may have business relations.

"2. That the second party will supply no stock purchased or furnished him by the first party to agents, dealers or other purchasers from him at other than the prices and on the terms, from time to time, agreed upon between the parties hereto, and only for cash with orders or on thirty days' time, if secured by the endorsement of some financially responsible party or on satisfactory letters of credit. All sales to be made by the second party to agents at a discount of thirty-three and one-third per cent. and to dealers at twenty-five per cent. from retail prices. The said party of the second part is to use his due care and diligence in looking up the standing of people to whom goods are sold on credit and then if any losses arise, these losses are to be charged as an item of expense to the business.

"3. Said second party further agrees to carry at the agency aforesaid a stock of merchandise manufactured or sold by the party of the first part, amounting to one thousand six hundred and sixty-six and two-thirds dollars at retail prices, which shall be...