J. R. Watkins Co. v. Smith

421 S.W.2d 527, 1967 Mo. App. LEXIS 621
CourtMissouri Court of Appeals
DecidedOctober 2, 1967
DocketNo. 24750
StatusPublished
Cited by4 cases

This text of 421 S.W.2d 527 (J. R. Watkins Co. v. Smith) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J. R. Watkins Co. v. Smith, 421 S.W.2d 527, 1967 Mo. App. LEXIS 621 (Mo. Ct. App. 1967).

Opinion

CROSS, Judge.

Plaintiff Watkins Products, Inc., formerly known as J. R. Watkins Company, is a manufacturer and wholesale supplier of goods and merchandise consisting principally of foods, medicines, household articles, toiletries, feed supplements and insecticides sold door to door by franchised distributors. Watkins brought this suit against defendant Marvin Eugene Smith, as the principal debtor, and defendants J. E. Case, Sr. and J. E. Case, Jr., as his sureties, to recover an unpaid balance of indebtedness due it in the amount of $3,793.05, incurred by defendant Smith while acting as one of its authorized distributors. The case was tried before a jury. Defendant Smith had filed no pleading and was not present at the trial. At the conclusion of all the evidence, plaintiff dismissed the action, without prejudice, as to defendant Smith. Thereupon, at the direction of the trial court, the jury returned a verdict in favor of plaintiff, in the entire amount prayed for, against the defendant sureties, J. E. Case, Sr. and J. E. Case, Jr., who now appeal from the judgment.

Appellants charge that the trial court erred in directing the verdict for plaintiff. [529]*529As a basis for this contention appellants assert that three items charged against Smith’s account were outside the scope of their surety contract and should not have been included in the jury’s verdict. In order to determine these questions, we look first to the interacting relationships and obligations of the parties involved.

On September 1, 1963, Watkins Products, Inc. and Marvin E. Smith entered into a written agreement designating Watkins as “Seller” and Smith as “Purchaser”, whereby Watkins agreed to sell and Smith agreed to buy Watkins products at wholesale prices for resale, and at the termination of the agreement “to pay the whole amount therefor then remaining unpaid.” The legal relationship of the parties was defined by the following quoted provision of the contract : “It is expressly understood and agreed that the relationship hereunder is solely that of vendor on the part of the Seller and vendee on the part of the Purchaser, * * * ”

The surety agreement is also dated September 1, 1963, bears the signatures of defendants J. E. Case and J. E. Case, Jr., and provides in pertinent part as follows:

“In consideration of One Dollar to us in hand paid, receipt of which is hereby acknowledged, by Watkins Products Inc., a corporation (hereinafter called the ‘Seller’) and the extension of credit and/or the sale and delivery of merchandise to Marvin Eugene Smith * * * of Kansas City, Missouri * * * (hereinafter called the ‘Purchaser’), we hereby jointly and severally, absolutely and unconditionally insure, guarantee and promise due payment at Winona, Minnesota, but not exceeding Five Thousand ($5,-000.00) * * * Dollars in the aggregate, of all indebtedness to the Seller now ozving or hereafter incurred, by or for said Purchaser, according to the terms and conditions of any agreement made by the Purchaser and the Seller regardless of his ability or willingness to pay the same, and consent that without affecting our liability, any or all of the indebtedness may be changed in form, by note or otherwise, * * * ” (Emphasis supplied.)

It is of special significance that the foregoing quoted surety undertaking is not limited to indebtedness incurred by Smith for merchandise purchased from Watkins. Appellants are obligated by its provisions to pay any indebtedness to Watkins, within the specified amount, incurred either before or during the term of agreement by or for Smith according to the terms and conditions of any agreement between Smith and Watkins.

Plaintiff’s evidence consists of business records produced by witness Frank J. Kinsey, Jr., manager of plaintiff’s collection department, in charge of accounts receivable. The witness identified certain records as having been kept under his custody and control, and otherwise qualified them as admissible evidence under the Business Records as Evidence Law. It is shown by the records of Smith’s account that the agreement between him and Watkins remained in effect from and after September 1, 1963, the date of its execution, until October 21, 1964, on which date the agreement was “terminated” by Watkins. During that time Smith purchased and received goods from Watkins, for which his account reflects charges in the total sum of $26,685.93. Total credits are shown in the amount of $22,892.88. The unpaid balance of Smith’s account on the terminal date was $3,793.05.

The first item of the Smith account disputed by appellants as being outside the scope of their surety agreement is a charge for merchandise in the amount of $761.11, bearing the date September 5, 1963, which indicates that the merchandise for which it was entered was delivered F.O.B. on that day. However, there is also in evidence an invoice for the merchandise in question which shows a shipping date of August 29, 1963. On this basis appellants claim that the sales transaction was made prior to the date of their surety agreement and that [530]*530therefore they are not liable, as guarantors, for the debt arising therefrom. It is immaterial whether the debt arose on August 29, 1963, or on September 5, 1963, because in either event appellants are liable for its payment as guarantors. In unmistakable language the surety agreement executed on September 1, 1963, obligates them, in return for consideration provided, to make “due payment * * * of all indebtedness to the Seller now owing or hereafter incurred.” (Emphasis added.) In enforcing that agreement it was the court’s duty to give effect to it as written, without regard to its wisdom or folly, 17A C.J.S. Contracts § 296(4), pp. 98-101, Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527. Even if it be assumed that the sales transaction was completed on August 29th, 1963, and prior to execution of the surety agreement on September 1st, 1963, appellants are bound by the clear terms of that undertaking to pay any pre-existing debt owed by Smith to Watkins pursuant to any agreement they may have made.

Appellants also deny liability for merchandise charged to Smith’s account in the amount of $2,785.84 on September 11, 1963. As respects the origin of that charge, the business records in evidence disclose the following circumstances: On September 11, 1963, one Donald D. Braun of Wichita, Kansas and defendant Marvin E. Smith entered .into a written contract, an originally executed copy of which was introduced in evidence. That instrument recites that Braun is a “retiring purchaser”, that Smith is a “new purchaser”, and further recites an agreement as follows: “The attached itemized list of goods correctly shows the kind and quantity of goods which Donald D. Braun, the undersigned retiring Purchaser, now has on hand in good condition, to be returned to WATKINS PRODUCTS, INC., F.O.B. cars at Winona, Minnesota, or other regular manufacturing point of the Company as provided for in his agreement with it, which goods, Marvin E. Smith, the undersigned new Purchaser hereby purchases and for which he agrees to pay said Company in accordance with his agreement. And the undersigned hereby request said Company to credit the retiring Purchaser, and charge the new Purchaser, with the goods listed, at said Company’s regular and current wholesale prices.” The agreement is attested by Braun’s and Smith’s original and duly witnessed signatures.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Norfolk & Western Railway Co. v. Riss International Corp.
560 S.W.2d 332 (Missouri Court of Appeals, 1977)
Reeves v. Smith
468 S.W.2d 713 (Missouri Court of Appeals, 1971)
State Ex Rel. State Department of Public Health & Welfare v. Ruble
461 S.W.2d 909 (Missouri Court of Appeals, 1970)
Vandivort v. Dodds Truck Line, Inc.
444 S.W.2d 229 (Missouri Court of Appeals, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
421 S.W.2d 527, 1967 Mo. App. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-r-watkins-co-v-smith-moctapp-1967.