Whisenant v. Shores-Mueller Co.

• Decision Date: 10 May 1917
• Docket Number: (No. 710.)
• Citation: 194 S.W. 1175
• Parties: WHISENANT et al. v. SHORES-MUELLER CO.
• Court: Texas Court of Appeals

194 S.W. 1175

WHISENANT et al. v. SHORES-MUELLER CO.

(No. 710.)

Court of Civil Appeals of Texas. El Paso.

May 10, 1917.

Rehearing Denied May 24, 1917.

Appeal from Comanche County Court; J. H. McMillan, Judge.

Action by the Shores-Mueller Company against J. H. Whisenant and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

H. N. Goodson, of Comanche, for appellants. Smith & Palmer, of Comanche, for appellee.

Statement of Case.

HIGGINS, J.

This suit was instituted by appellee against J. H. Whisenant as principal debtor, and T. J. Hanson and A. N. Steele as guarantors, to recover a balance of $394.06 due on open account for goods sold and delivered to Whisenant. It was alleged that the goods were furnished Whisenant under a written contract which reads:

"Whereas, J. H. Whisenant of Comanche, Texas, hereinafter called the salesman, desires to engage in the business of selling the extracts, spices, toilet goods, household medicines, veterinary remedies, and other goods, manufactured or sold by Shores-Mueller Company, a corporation organized under the laws of Iowa, hereinafter called the company, to consumers, and desires to purchase the same from the company at wholesale prices and to pay therefor in installments:

"Therefore, unless prevented by strikes, fires, accidents or causes beyond its control, the company agrees to sell and deliver to the salesman f. o. b. cars at Cedar Rapids, Iowa, such reasonable quantities of the said extracts, spices, toilet goods, household medicines, veterinary remedies, and other goods as the salesman may order from time to time, and charge the same to his account at current wholesale prices; also to notify the salesman promptly of any change in wholesale prices.

"The salesman agrees to pay his said account to the company at its office at Cedar Rapids, Iowa, as charged at said wholesale prices, which prices shall be conclusive both as between the parties hereto, and as to the guarantors whose guarantee is a part of this agreement. The salesman agrees and shall have the right to pay his said account by remitting in cash each week to the company, an amount equal to one-half the receipts from his business until his account is balanced, and as evidence of good faith he shall make to the company weekly reports of his business; provided, however, if he pays his account in full on or before the 10th day of each month he is to be allowed a discount of 10 per cent. from said wholesale prices, and shall be relieved from making weekly reports so long, and so long only, as he continues to pay his account on or before the 10th of each month, as aforesaid.

"The company further agrees to furnish free of charge, on board cars at factory, a reasonable amount of its advertising matter, report and order blanks, and printed return envelopes, for the salesman to use in conducting his business, also to give him free of charge, instructions and advice, through letters, bulletins and booklets which the company may have on hand from time to time as to the best method of selling its products to consumers.

"If for any reason the salesman wishes to discontinue the work at any time the company agrees to take back all goods in possession of the salesman at the time and give him credit for same at the prices originally charged, less freight, provided said goods are returned to the company in the same condition as when first shipped, otherwise a charge of not over twenty per cent. will be made for putting such goods into merchantable condition, and the balance due the company shall be paid the company at Cedar Rapids, Iowa, in cash, within a reasonable time.

"This contract is subject to acceptance at the home office of the company and is to continue in force so long as the account of the salesman is satisfactory to the company, provided, however, that the salesman and his guarantors may be released from all liability under this contract at any time by paying in cash the balance due the company.

"Dated at Cedar Rapids, Iowa, August 31, 1912.

                            "Shores-Mueller Company
                               "By G. A. Shores, President
                            "J. H. Whisenant."
                

Hanson and Steele guaranteed the obligations of Whisenant under the contract. The amount sued for is the balance due by Whisenant for goods sold and delivered to him by appellee. The contract mentioned was accepted by appellee on November 30, 1912. Whisenant did not begin to sell goods under the same until after January 1, 1913. Prior to the time the contract was signed, Whisenant received several letters from appellee relative to same and a book entitled "Convincing Proof," also a pamphlet entitled "Read this booklet carefully. It explains how to get your contract signed so there will be no question but what it will be accepted." After the contract was signed by Whisenant and accepted by appellee, Whisenant received from appellee the wholesale and retail price lists of the products, and "Shores Special Instruction Book No. 2." The price list simply showed the wholesale and retail prices of the various articles.

On December 6, 1912, appellee wrote Whisenant as follows:

"Glad to receive your order for goods Mr. Whisenant. They have gone to you by freight, and we hope they will arrive promptly. We will look for your photo as soon as you have it taken.

"Your territory will be Comanche county, Texas. We think we wrote you about this when we accepted your contract."

Findings of fact and conclusions of law were filed by the court as follows:

(1) I find that the defendants executed the contract sued on.

(2) I find that the defendant J. H. Whisenant, in his settlements with plaintiff, fell behind in the amount sued for, and that, in accordance with the terms of the contract sued on, all the defendants are liable to plaintiff for said sum.

(3) I find that if there were any parol agreements or agreements by correspondence, between plaintiff and defendant J. H. Whisenant before the execution of the contract sued on, the same were merged into said contract, and that the contract sued on was not changed or superseded to any subsequent contract, either oral or written.

(4) That the printed instructions or rules sent out by plaintiff to defendant J. H. Whisenant, after the execution of the contract sued on, did not amount to either a new contract or subsequent conditions ingrafted on the contract sued on, but amounted merely to advice in the conduct of his business.

(5) I find and conclude that there is no condition in the contract sued on and whereby it might be forfeited by reason of the failure of the defendant J. H. Whisenant in following the printed rules or instructions of the plaintiff in regard to territory, prices, or the exclusive handling of plaintiff's products, and that said contract was and is not in violation of the antitrust laws of this state.

I therefore conclude that plaintiff ought to recover the amount sued for.

Additional findings of fact were filed by the court at request of defendant, from which we make the following condensed statement:

1. That Whisenant had not received or sold any goods under the written contract in Comanche county before he received the letter of December 6, 1912, assigning Comanche county his territory to him and before receipt of the instruction books and pamphlets above mentioned. That the contract was accepted by appellee on November 30, 1912.

2. That all goods ordered, received, and sold by Whisenant in Comanche county were ordered, received, and sold after the receipt of the letter of December 6th and after the receipt by Whisenant of the Shores Special Instruction Book No. 2.

3. After the receipt of said instruction book No. 2 and the letter of December 6th, Whisenant never sold or offered to sell any of the products in any territory other than Comanche county.

4. After the receipt of said instruction book No. 2, Whisenant, up to the time that the contract was terminated, never had or engaged in any other business except the sale of the products of plaintiff in Comanche county.

5. After the receipt of said instruction book No. 2, Whisenant devoted his time and attention exclusively to selling the products of appellee.

6. After the contract sued upon was signed and accepted by appellee, appellee furnished Whisenant retail price list above mentioned, at which prices therein listed Whisenant was to sell the products of the appellee to consumers....