and maintenance as may be proper," the ments, to have the former order or judgment learned judge says: "This section seems to us to authorize the court to modify an order for maintenance of the children as well as the order for the maintenance of the wife." The order of the circuit court overruling the motion was affirmed, all the members of the court concurring in that result, but two of them expressing no opinion as to the intimation thrown out by the Presiding Judge as to future applications which might be made for the support of the minor children, changed accordingly by the court, and to accept $1.00 in lieu of alimony in gross. The money was paid over to her by plaintiff. That he borrowed the money is not material; that would only be material if the lender was here seeking the aid of the court. There is no pretence that any fraud or imposition was practiced upon the plaintiff. She made the agreement with the aid of counsel she had chosen, and as far as it was then possible, she had carried out her part of the agreement by withdrawing the execution and releasing the garnishment. Here in leave to make such amendment being granted. "There can be no doubt that, under this statute (section 2381, R. S. 1909), the court grant-point of fact was a valid executed contract, ing the divorce retains jurisdiction as to the modification of the judgment or decree touching the maintenance of the wife and the custody of the children." Nortoni, J., in Wald v. Wald, 168 Mo. App. 377, loc. cit. 383, 151 S. W. 786, 788. "A judgment for divorce, so far as alimony and the support and custody of children are concerned, is not a closed incident like other judgments. As to these matters it can accomplish its true end only by remaining perpetually open for variations to be made from time to time as the changed circumstances of the parties and the children may require (1 Bishop on Marriage, Divorce & Separation, § 822). As respects the custody of the children, a divorce suit can in its nature terminate only with their majority. Id., § 826. And, in addition to this, our statute gives the court power to modify the judgment as to such matters. Section 2381, R. S. Mo. 1909." Trimble, J., in Phipps v. Phipps, 168 Mo. App. 697, loc. cit. 700, 154 S. W. 825, 826. To sum up the matter, our conclusion is that a judgment for alimony, while a judgment and a fixed debt, unless and until altered, is more in the nature of an interlocutory judgment. The court that rendered it has power to alter it. So says our statute; so the English Ecclesiastical, as well as the Chancery Courts, the courts of other states which plaintiff could not rescind. When the court enforced it, it did no more than what it had a right to do, independent of the agreement, and as we have said, simply enforced and carried out the contract that the parties had made. Under such circumstances we do not think that the case presented is one of the discharge of a fixed debt for a sum less than that debt or that it is the release of a fixed obligation or debt for a smaller amount. [3] Touching the final point as to quashing the execution, it is sufficient to say that the judgment upon which it purported to rest, having been annulled, the execution fell with it. We find no reversible error in the action of the trial court and its judgment is affirmed. NORTONI and ALLEN, JJ., concur. WATKINS et al. v. DONNELL et al. (No. 14119.) 2, 1915.) 3-CREATION OF and our own courts hold. The power con- (St. Louis Court of Appeals. Missouri. Nov. ferred over judgments allowing alimony is not restricted in any way in its operation. There are no words of restriction confining it to alimony to accrue. It covers the whole subject of alimony and vests the court in which it was awarded with power to control it at any time and in any manner. That being so, when these parties here entered into an agreement to commute the arrears at a fixed sum and to have the order of alimony changed so as to award alimony in gross in the sum of $1.00, they were doing what they had a right to do and what the court could have done for them without their consent. It required no consideration, valuable or otherwise to sustain an agreement to change or an order making the change. It lay in the discretion of the court, on consideration of the facts and circumstances in the case, to change it. In the case at bar we have the fact of the plaintiff here, by a solemn covenant and agreement in writing, acknowledged by her before a public official, agreeing to accept $600 in satisfaction of the accrued install 1. PRINCIPAL AND AGENT [Ed. Note. For other cases, see Principal and Agent, Cent.Dig. 88 3-9, 11, 12; Dec.Dig. 3.] 2. CORPORATIONS_642-FOREIGN CORPORA- | performance by the agent, became liable to him TIONS-DOING BUSINESS. for its breach. Where a person in South Carolina acted as an agent of a Missouri manufacturing corporation in conducting its sales agency in South Carolina, the business being the company's and not the agent's it was unlawful for such agent to continue to conduct the business as agent in South Carolina, without compliance by the Missouri corporation with the laws of South Carolina relative to the doing of business by foreign corporations. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. 642.] 3. COMMERCE 40-INTERSTATE COMMERCE SALE OF GOODS. Where a Missouri corporation sold goods to a person resident in South Carolina, so that the title to them as shipped vested in him, the business conducted by him being his own business, and not that of the corporation, though he was called its agent, the corporation was engaged in interstate commerce, and could not be required to comply with South Carolina law regulating the doing of business by a foreign corporation. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. 40.] 4. CONTRACTS 147 WHOLE. CONSTRUCTION AS A contract must be construed as a whole, regarding its general tenure and purpose, and giving rational effect, if possible, to all of its provisions. The sales agent of a corporation sued it for breach of his contract of employment. Pending suit, a receiver for defendant was appointed, and the agent filed with him a claim, verified by oath, to which was attached a copy of the petition filed in the original suit, averring that the contract, by defendant's acts, became "impossible to perform, inoperative, and void," while the claim itself stated that the demand was based on the contract filed with the original petition. The the fact that the defendant, a Missouri corporaalleged impossibility of performance consisted in tion, appointed the agent to conduct a sales agency in South Carolina, and thereafter failed to comply with the laws of such state relative to the doing of business by foreign corporations. Held, that whether the contract, strictly speak [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. 147.] 5. EVIDENCE 462-AMBIGUITY-EXPLANA-ing, became void or not, the claim against the TION OF CONTRACT. Where a contract between a resident of South Carolina and a Missouri manufacturing corporation contained apparently contradictory provisions as to whether it was intended to appoint the South Carolina resident as sales agent of the company or to sell him goods outright, the contemporaneous acts and declarations of the parties, defendant's advertisement for an agent, and the correspondence leading up to the con receiver, averring that it was void, was yet sufficient, since the rules of pleading do not apply with their original strictness to proceedings against receivers. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2281, 2282; Dec. Dig. 565.] Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge. tract, could be looked to to resolve the ambiguity.kins and others against John W. Donnell Action was instituted by James A. Wat[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2134-2139; Dec. Dig. 462.] and others, doing business as the Donnell 6. CORPORATIONS 657-FOREIGN CORPORA- Manufacturing Company, and pending suit TIONS-CONTRACTS-ILLEGALITY. Where a Missouri manufacturing company appointed a sales agent to conduct its agency in South Carolina, the company's subsequent failure to comply with the laws of that state relative to the doing of business by foreign corporations did not render the contract appointing the agent void ab initio. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2536-2541, 2550, 2552-2554; Dec. Dig. 657.] 7. CORPORATIONS 642-FOREIGN CORPORATIONS DOING BUSINESS. A Missouri corporation could make a contract in Missouri appointing an agent for the transaction of its business in South Carolina, without complying with the laws of that state relative to the doing of business by foreign corporations. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. 642.] a receiver was appointed for defendants. R. L. Zeigler filed with him a claim based upon his alleged cause of action. The matter was referred to a referee. From overruling by the circuit court of claimant's exceptions to the referee's report, claimant appeals. Reversed and remanded, with directions. See, also, 189 Mo. App. 617, 175 S. W. 280. T. M. Pierce and S. P. McChesney, both of St. Louis, for appellant. Fred Armstrong, Jr., of St. Louis, for receiver. 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. 8. CORPORATIONS 657-FOREIGN CORPORA- During the pendency of this suit a receiver TION-BREACH OF CONTRACT-SUBSEQUENT was appointed for said corporation, and on Where a Missouri corporation appointed a April 9, 1910, appellant filed with the reresident of South Carolina its sales agent, and ceiver a claim based upon his said alleged thereafter failed to comply with the laws of cause of action. The matter was referred South Carolina relative to the doing of business by foreign corporations, the company, which to a referee, who in due course made report thus rendered the contract impossible of legal of his findings, recommending that the claim ILLEGALITY OF PERFORMANCE. quent agreements herein, the said second party agrees to the following: and does hereby engage and agree to become "(1) The said party of the second part will sales agent for the goods manufactured and sold by the party of the first part, as heretofore stipulated, for a term of two (2) 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. 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 $1,800 per year, wrote said company, making applica"(2) That the second party will supply no tion for the position. The company prompt- stock purchased or furnished him by the first ly replied, and further correspondence was party to agents, dealers, or other purchasers had between the parties. Appellant fur- from him at other than the prices and on the terms, from time to time, agreed upon between nished "references," to whom the company the parties hereto, and only for cash with orwrote, receiving satisfactory replies. On orders or on thirty (30) days' time, if secured by about March 21st appellant, at the company's the endorsement of some financially responsible suggestion, and it paying one-half of his ex- party or on satisfactory letters of credit. All ex-sales to be made by the second party to agents penses, came to the city of St. Louis for a at a discount of thirty-three and one-third per "personal interview," and on the following cent. (33%), and to dealers at twenty-five per day a written contract was entered into be- cent. (25%) from retail prices. The said party tween him and said company in terms as diligence in looking up the standing of people to of the second part is to use his due care and follows: 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. "This agreement, made and entered into this 22d 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 specialties in the city of Columbia, state of South Carolina, for a period of two (2) years -that is to say, twenty-four (24) 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 ($150.00) per month, payable as hereinafter provided, and five per cent. (5%) 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. (40%) 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 case the same prices as originally charged him, said stock to be in fairly good condition. "In consideration of the foregoing and subse "(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 ($1,666.66) at retail prices, which shall be an assortment to be selected by the party of the first part or jointly selected by the parties hereto, and to be billed to said second party at forty per cent. (40%) discount from retail prices, amounting to one thousand dollars ($1,000.00) net. The said party of the first part is to carry all additional stock necessary for the proper handling of the business, based upon sales and reports of demonstrators and sales people. "(4) The party of the second part further agrees to furnish the said party of the first part with daily and weekly reports, and at the end of each month to forward to the party of the first part a report of all business done during said month, giving the names and address of any and all agents appointed, a full and accurate statement of expenditures, amount of goods sold, of money collected, and any other information regarding the business that may be requested by the party of the first part. "(5) As the permanent success of this business will depend upon a reasonable amount of merchandise being sold, it is understood and agreed that the sales of each month shall amount to six hundred dollars ($600.00), which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract, and when the term 'minimum amount' is herein used, it will be held to mean six hundred dollars ($600.00). If the sales of any month shall not amount to this minimum amount, and during the succeeding month sales are in excess of the minimum amount required to make up an average of six hundred dollars ($600.00) a month, this contract will hereby be fulfilled in this respect by the party of the second part. If the sales at the end of the first year shall not have averaged six hundred dollars ($600.00) per month, the party of the first part reserves the right to cancel this contract if it so desires, and upon such cancellation shall repurchase from said second party all stock that he may have on hand, purchased from said first party, paying therefor in cash the same prices as originally charged him, said stock to be in fairly good condition. "(6) It is mutually understood and agreed between the parties hereto that the said second party shall have the right and authority to collect all money for business done through said. office, and that at the end of each month, after | in the state of South Carolina, but doing an deducting from the receipts of said office the interstate commerce business, and was not amount of his own remuneration, to wit, one required to comply with the laws of said hundred and fifty dollars ($150.00) and necessary expenses such as rent, office help, postage, state as a foreign corporation; and that the advertising matter, office sundries and commis- company's failure in this respect did not sions, etc., all other expenses and those herein prevent appellant from carrying out the mentioned being subject to the approval in writ-revent ing by the party of the first part, he shall remit terms and provisions of the contract on his with his monthly account the balance to said part, or render it void or impossible of party of the first part, at its office in the city of performance. St. Louis. When such remittance is received, the party of the first part will then replace, as herein provided for, the stock sold during the previous month by the party of the second part; and in case the minimum amount of business required has been transacted and shall not be sufficient to pay the expenses of the office, as herein provided for, cost of replacing stock sold, etc., such deficiency shall be made good by the party of the first part at the end of each month. "(7) It is further mutually agreed by both parties hereto that the said party of the second part shall have the right to renew this contract at its expiration for such further term as may be then mutually agreed upon, it being understood by both parties that the expenses incident to the opening of said office constitute the necessity of a permanent arrangement. "In further consideration of the foregoing covenants and agreements to be kept and performed by the party of the first part, the party of the second part has this day paid to the party of the first part one thousand dollars ($1,000.00), receipt whereof is hereby acknowledged in payment of stock of goods to be furnished as herein provided. "In witness whereof," etc. Upon the execution of this contract appellant paid the Donnell Company $500, and shortly thereafter paid it a like sum, making a total of $1,000 provided by the contract to be paid by appellant. Appellant there upon went to Columbia, S. C., where he met a representative of the company, who there rented and furnished an office for the carrying on of said business. The company furnished appellant with goods in accordance with the contract, and appellant conducted the said business for a period of about two months. The Donnell Company, however, did not comply with the laws of South Carolina relating to foreign corporations, and appellant, upon advice of counsel, refused to further continue carrying on the business, and demanded of the company the return of the $1,000 deposited with it, together with the sum of $300 as compensation for his services and $26 for expenses alleged to have been incurred by him, offering to return the stock of goods on hand. The company refused appellant's demands, and declined to receive back the goods, whereupon appellant instituted his suit. The learned referee found that the foregoing contract was not one of agency, but that by its terms appellant had agreed to purchase certain goods from the Donnell Manufacturing Company; that under the contract the title thereto vested in appellant as purchaser upon his receipt of the goods, and that in selling the same he was selling his own property, and not that of the Donnell Company; that the Donnell Manufacturing [1-4] But we find ourselves unable to sanction the view taken by the referee respecting the construction of the contract. In our judgment it is one of agency, creating the relation of principal and agent between the parties. This is the crucial question involved, upon the determination of which the case before us turns. The laws of South Carolina regarding the doing of business within that state by foreign corporations were put in evidence and are before us. It is unnecessary to here set out these statutory provisions. It is sufficient to say that, if appellant was acting as an agent of the Donnell Company in conducting the aforesaid business, the business being that company's business, and not appellant's, it was unlawful for appellant, as such agent, to continue the conduct thereof in the state of South Carolina without compliance by the corporation with the laws aforesaid. On the other hand, if the contract was one of sale, whereby the title to the goods shipped vested in appellant as purchaser, the business conducted by him being his own business and not that of the corporation, as the referee found, then the corporation's part of the transaction as a whole was an interstate commerce business, and it could not be required to comply with the laws of South Carolina as a foreign corporation. The contract begins by providing that the company "engages" appellant "in the capacity of sales agent" to conduct "a sales agency" in Columbia, S. C., agreeing to pay appellant $150 per month and in addition thereto 5 per cent. commission on all sales. The company agrees to open and fit up an office at its own expense for the carrying on of such business. The contract requires appellant to devote his entire time to the business, and to deal honorably, not only with the company, but with "the public and all persons with whom he may have business relations." Appellant is required to sell for cash, or "on thirty (30) days' time, if secured by the indorsement of some financially responsible party, or on satisfactory letters of credit," to sell goods at certain designated prices and to use care and diligence in ascertaining the standing of people to whom goods are sold on credit. He is required to furnish the company with daily, weekly, and monthly reports, to give a full and accurate statement of expenditures, the amount of goods sold, money collected, etc., and at the end of each month, after deducting from the re the office, to remit the balance to the com- | lant's $1,000, but future shipments, were to pany. On the other hand, the contract provides that the company shall sell and deliver to appellant goods at 40 per cent. discount from retail prices, and, upon the expiration of the term of the contract, "repurchase" from appellant stock remaining on hand; and there is a recital that appellant has paid to the company $1,000, “in payment of stock of goods to be furnished him as herein provided." It is true that the mere use of the term's "sales agent" and "sales agency" does not necessarily render the contract one of agenсу. But neither does the presence of the words "sell and deliver," or the recital that appellant's $1,000 is received "in payment of stock of goods," necessarily make it a contract of sale. The contract is to be construed as a whole, with regard to its general tenor and purpose, giving, however, rational effect, if possible, to all of its provisions. It is quite evident that it contemplates the transaction of business at Columbia, S. C., as the company's business, and not as the business of appellant. This appears from the fact that appellant is engaged as a sales agent to conduct a sales agency, at an agreed compensation, the company to fit up the offices therefor at its own expense; that appellant is not permitted to conduct the busi ness as he chooses, but is instructed in regard to the prices at which he is to sell goods, and is required to take certain precautions in the matter of extending credit; and that he must make daily reports to the company, and certain weekly and monthly re ports as well, and remit monthly all receipts remaining after deducting expenses including his own compensation. Aside from the use of the terms "sales agent," and "sales agency," these important provisions, indicating the relation sought to be established between the parties, are utterly incompatible with any theory other than that appellant became the company's agent to conduct a branch of its business in South Carolina. That the contract provided that the goods supplied appellant were sold to him, the company agreeing to "repurchase," at the same price, whatever might remain on hand at the expiration of the term of the contract, if in fairly good condition, ought not to be regarded as controlling on the question in hand, in view of the provision discussed above. When we come to consider the agreement to repurchase, at the same price at which the goods were billed to appellant, it makes the so-called sale of these goods appear to be merely an arrangement whereby the company was to supply appellant with a stock of goods and replenish the same from time to time, retaining in the meantime appellant's $1,000 and making him responsible for the return of goods unsold; the value of such goods being placed at 40 per cent. of the retail price thereof. That not only the original stock, representing appel be billed to appellant at 40 per cent. reduction from retail price, is not inconsistent with this view, for the company was to get all of the net receipts arising from the sale of goods from which to replenish the stock as needed. The contract provides that, in addition to the stock represented by appellant's $1,000, the company will "carry all additional stock necessary for the proper handling of the business;" and the company agrees, upon receiving remittance of the net receipts each month, to replace the stock sold during the previous month. Had the contract been fully performed, and the stock kept replenished, the company would have been obligated in the end to take back the stock remaining on hand, if in fairly good condition, crediting appellant with all thereof at the prices mentioned. While an ulterior motive and purpose may have lurked behind the entering into of this contract by the Donnell Company, a matter not here in question, if carried out in good faith according to what, in spite of ed as the true intent and spirit thereof, apits apparent contradictions, must be regardpellant, as we view the matter, would have de business as its agent, for a stated remunerabeen conducting all the while defendant's fendant receiving the net profits, if any, and tion, having $1,000 invested therein; missions, as well as other expenses. It is being liable for appellant's salary and comcertain that appellant could make no profit out of the business beyond his salary and commission; but as the company received all moneys arising from the sale of goods, after deducting expenses, it presumably would be enabled to make a profit upon its goods, if the volume of business was sufficiently great. This, of course, must have been the company's object, if there was any good faith on its part in the transaction. In this view of the contract, there can be no doubt that in operating thereunder the corporation was doing business in the state of South Carolina, and that the conducting of such business, without a license so to do, was illegal, subjecting the offender to the penalties prescribed by the laws of that state for such offense. It is useless to discuss the cases cited and relied upon in the briefs, since the contracts involved differ materially from that before us. But see what is said by Mr. Justice Harlan, in holding a contract under consideration. to be one of agency, in Wilcox & Gibbs Co. v. Ewing, 141 U. S. 636, 12 Sup. Ct. 94, 35 L. Ed. 882, from which we quoted in HandlanBuck Mfg. Co. v. Stave Electrical Co., 184 Mo. App. 247, 168 S. W. 785. Learned counsel for the receiver, in support of his contention that the contract is one for the sale of goods, contemplating an interstate commerce business, and that consequently the company could not be required to comply with the laws of South Carolina as a foreign corpora |