Austin v. Burge
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 618,156 Mo.App. 286 |
| Parties | O. D. AUSTIN, Appellant, v. CHARLES BURGE, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. C. A. Denton, Judge.
Judgment reversed and cause remanded.
W. O Jackson and Silvers & Silvers for appellant.
(1) Although one has not ordered a newspaper or periodical sent to him, or if his subscription has expired, yet if the paper is sent to him through the mails and he takes it out and uses it, this raises an implied contract on his part to pay the subscription price. 9 Cyc. 258-259; Fogg v. Portsmouth Atheneum, 44 N.H. 115, 82 Am. Dec. 191; Goodland v LeClair, 78 Wis. 176, 47 N.W. 268; Ward v. Powell, 3 Harr. (Del.) 379, 7 Am. and Eng. Ency. Law (2 Ed.), p 130, note. (2) The two instructions offered by the plaintiff which were refused by the court were in keeping with the doctrine as above announced. The instruction given by the court for the defendant told the jury that there must be a contract between the plaintiff and defendant to the effect that the defendant should pay for the paper, unless they should find that an implied contract as defined in other instructions was made. The court then failed to give any instructions telling the jury what constituted an implied contract, and refused the instructions offered by the plaintiff which would have told the jury, in effect, what would constitute an implied contract. The evidence offered by plaintiff that defendant admitted that his family read the paper was proper for the consideration of the jury as tending to show an implied contract to pay for the same.
Thomas J. Smith for respondent.
(1) The appellant in this case by sending the paper through the mail to the respondent without the direction or request of respondent, could not make respondent his debtor. Allen v. Richmond College, 41 Mo. 308; Painter v. Ritchey, 43 Mo.App. 112; Hiemenz v. Goerger, 51 Mo.App. 589; Hartnett v. Christopher, 61 Mo.App. 66. (2) The appellant made no objection to any of the instructions given by the court, either of its own motion or upon behalf of the defendant, but only excepted to the giving of the one instruction asked on behalf of the defendant and those given of the courts on motion. This was not sufficient. He was required both to object to the giving, and to except after the same had been given. Sheets v. Ins. Co., 226 Mo. 613; Welch v. K. C. Midland Coal & Mining Co., 132 S.W. 49; Stevens v. Knights of Modern Maccabees, 132 S.W. 757; Monroe v. United Rys. Co., 132 S.W. 645. (3) In the motion for new trial the appellant did not complain of any instructions given by the court of its own motion, but only of the instruction given on behalf of defendant. Not having done this, he cannot be now heard to complain of the giving of such instruction by the court below. Webb v. Allington, 27 Mo.App. 559; Roberts v. Boulton, 56 Mo.App. 405; Rubber Co. v. Rubber Co., 74 Mo.App. 266. (4) Appellant having denied that the respondent ordered him to discontinue the sending of the paper to respondent solely and only upon the ground that his universal rule was to discontinue on order, and admitting that he had no recollection of the fact at all, it was competent to prove by other witnesses that he had failed to discontinue their papers on order, as showing that the appellant's rule was not universal as claimed by him, and thereby to discredit his testimony to the effect that no order to discontinue had been given.
This action was brought on an account for the subscription price of a newspaper. The judgment in the trial court was for the defendant.
It appears that plaintiff was publisher of a newspaper in Butler, Mo., and that defendant's father-in-law subscribed for the paper, to be sent to defendant for two years, and that the father-in-law paid for it for that time. It was then continued to be sent to defendant, through the mail, for several years more. On two occasions defendant paid a bill presented for the subscription price, but each time directed it to be stopped. Plaintiff denies the order to stop; but for the purpose of the case we shall assume that defendant is correct. He testified that notwithstanding the order to stop it, it was continued to be sent to him and he continued to receive and read it, until finally he removed to another state.
We have not been cited to a case in this state involving the liability of a person who, though not having subscribed for a newspaper, continues to accept it by receiving it through the mail. There are, however, certain well understood principles in the law of contracts that ought to solve the question. It is certain that one cannot be forced into contractual relations with another and that therefore he cannot, against his will, be made the debtor of a newspaper publisher. But it is equally certain that he may cause contractual relations to arise by necessary implication from his conduct. The law in respect to contractual indebtedness for a newspaper is not different from that relation to other things which have not been made the subject of an express agreement. Thus, one may not have ordered supplies for his table, or...
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