117 Kan. 712 | Kan. | 1925
The opinion of the court was delivered by
This was an action by the W. T. Rawleigh Company to recover $1,835.81 for merchandise sold by it to Floyd C. Holt, the payment for which was guaranteed by Neil McEachern and C. C. Iddings. The verdict and judgment were in favor of the defendants, and plaintiff appeals.
The merchandise was furnished to Holt, designated as the buyer, under a general contract that plaintiff, named the seller, would sell merchandise to him at current wholesale prices, shipments to be made as orders were made by Holt. He was to pay for the goods purchased on the 15th of each month, in which event he was to receive a discount of three per cent from invoice prices. It was a part of the general agreement that plaintiff should take back unsold goods .that were in good condition and credit the value of the same to Holt. There was a stipulation that plaintiff, at its option, would sell Holt the wagon for use in the sale and distribution of goods. With each contract was a guaranty agreement under which the guarantors bound themselves for the money that might become due from Holt for merchandise purchased, and there was a provision, too, that the guaranty should be effective without instituting a suit against Holt or -exhausting plaintiff’s remedies against him for amounts overdue. Purchases of goods were made by Holt from
“If a contract contains provisions some of which are valid and some of which are invalid, and the lawful matter can be readily severed from that which is unlawful, the lawful portion of the contract will be upheld.” (Syl. If 1.)
The authorities sustaining this view are grouped in a note found in 117 A. R. 498; see, also, 13 C. J. 515.
Defendants speak of a third article named “dement,” which was included in the sale, and is claimed to be illegal because of alcoholic content, but we are unable to find anything in the evidence showing it to be intoxicating. However, on another trial an inquiry may be made as to the nature of the article mentioned and whether a sale of the same was illegal.
The judgment is reversed and the cause remanded for a new trial.