W. T. Rawleigh Co. v. Van Duyn , 32 Idaho 767 ( 1920 )

RICE, J.

The parties to this action entered into the following written'contract:

“Whereas, E. M. Yan Duyn, of Eagle, Idaho, desires to purchase of the W. T. Rawleigh Medical Company, of Free-port, Illinois, on credit and at wholesale prices, to sell again on his own account to consumers, medicines, extracts, spices, soaps, toilet articles, perfumes, stock and poultry preparations, and other products furnished by it, paying his account for such goods in installments as hereafter provided.

“Therefore, he hereby agrees to sell no other products than those sold him by said company, and to have no other business or employment.

“He further agrees to pay said company for all products purchased under this contract the current wholesale prices of such products; 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 tenth day of each month, he is to be allowed a discount of three per cent (3%) from current wholesale prices.

“ When the sale or purchase of products under this contract shall be permanently discontinued for any reason or upon 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 cause 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 products sold him under this contract to his account at current wholesale prices; also to notify him promptly of any change in wholesale prices.

“Said company further agrees to furnish him free of charge on board ears at place of shipment, a reasonable amount of first class advertising matter, report and order blanks, and printed return envelopes for his use; also to furnish him, free of charge, after he has ordered goods, suggestions and advice, through letters, bulletins and booklets, as to the best methods of selling products purchased by him to consumers; but it is expressly agreed that nothing contained in such suggestions and advice shall be construed as in any way modifying the terms of this contract.

“This contract is subject tó 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 said company; provided, however, that said E. M. Van Duyn, or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account.

“THE W. T. RAWLEIGH MEDICAL COMPANY,

“ (Signed) W. T. RAWLEIGH,

“President.

“ (Signed) E. M. VAN DUYN.

“Accepted, Jan. 9th, 1912, at Freeport, Illinois.

“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 guaranty.,

“(Name) (Occupation) (Address):

“(Signed) J. F. Ayers, Farmer 0 Star, Idaho,

“ L. A. Rice, Farmer, Eagle, Idaho,

“ J. B. Smith, Farmer, Eagle, Idaho. ”

After the execution of the contract appellant Yan Duyn ■mailed certain orders to respondent’s place of business at Freeport, 111., which were filled and shipped to him in this state. The respondent terminated the contract on March 4, 1914, and brought this action to collect the balance due on account. The appeal is from the judgment.

Appellants contend that respondent is a foreign corporation and has never complied with the laws of this state so as to entitle it to do business therein; that the contract quoted above was executed in this state; that the transactions from which this litigation arose constituted doing business in this state, and that therefore the respondent has not legal capacity to sue.

The contract, according to its terms, was to be finally accepted by the respondent in the state of Illinois, and was not an Idaho contract. (W. T. Rawleigh Med. Co. v. Walker (Ala. App.), 77 So. 70.) The contract was one of sale and not of agency. (W. T. Rawleigh Med. Co. v. Rose, 133 Ark. 505, 202 S. W. 849; W. T. Rawleigh Med. Co. v. Holcomb, 126 Ark. 597, 191 S. W. 215; W. T. Rawleigh Med. Co. v. Ellis, 132 Ark. 421, 201 S. W. 110.) If the transactions pursuant to the contract constituted doing business in this state, it must be by reason of the orders mailed by appellant Yan Duyn in the state of Idaho to the respondent at Freeport, Ill., which orders were filled and the articles purchased delivered to said appellant on board cars at Freeport. These were interstate transactions, and the .statutes relating to foreign corporations have no application thereto. (Belle City Mfg. Co. v. Frizzell, 11 Ida. 1, 81 Pac. 58; Toledo Computing Scale Co. v. Young, 16 Ida. 187, 101 Pac. 257; W. T. Rawleigh Med. Co. v. Rose, supra.)

It is argued by appellants that the court invaded the province of the jury in instructing it as a matter of law that the transactions involved in the litigation constituted interstate commerce. It is the province of the jury to determine the facts, and of the court to announce the law. In this ease there was no dispute as to the facts relative to the nature of the transaction. It was the duty of the court to decide whether or not the transactions established by the uncontroverted evidence constituted interstate commerce. (Oakland Sugar Mill Co. v. Fred W. Wolf Co., 118 Fed. 239, 55 C. C. A. 93.)

It is next contended on the part of the guarantors that no notice was ever given to them by respondent of the acceptance of the contract and of their guaranty, and that they were thereby released from liability. This contention cannot be maintained. The contract of the guarantors expressly waived acceptance and all notice, and therefore they are in no position to complain that notice of the acceptance was not given them. (W. T. Rawleigh Med. Co. v. Laursen, 25 N. D. 63, 141 N. W. 64, 48 L. R. A., N. S., 198; W. T Rawleigh Med. Co. v. Walker, supra.)

Appellants also contend that while originally the contract was one of sale, it thereafter was modified and became essentially a contract of agency; that the modification was accomplished by means of letters 'and instructions contained in circulars and bulletins, urging appellant Van Duyn to sell on credit and to leave quantities of the goods with prospective purchasers on trial, accompanied with threats of terminating the contract if instructions were not followed, and that Van Duyn, on account of the threats, followed the instructions.

The evidence submitted on this question failed to disclose any purpose or intent to alter the terms of the contract. By the terms of the agreement, it was expressly provided that nothing contained in the suggestions and advice which the company agreed to furnish should be considered as in any way modifying the terms of the contract. The trial court committed no error in holding as a matter of law that the instructions and advice given did not modify or alter the terms of the contract. (W. T. Rawleigh Med. Co. v. Rose, supra; W. T. Rawleigh Med. Co. v. Van Winkle (Ind. App.), 118 N. E. 834.)

It is contended by appellants that after the execution of the contract, respondent and appellant Yan Duyn agreed to a restriction of the territory in which Yan Duyn might sell the goods of respondent, and thereby modified the contract in a material particular. The court submitted this question to the jury. We find no evidence in the record that any agreement limiting the territory was entered into. The submission of the question to the jury was erroneous, but in view of the verdict it was not prejudicial.

We find in the record no prejudicial error, and the judgment is affirmed. Costs awarded to respondent.

Morgan, C. J., concurs: Budge, J., sat at the hearing but took no part in the decision.