Barker v. Lewis Publishing Company
| Decision Date | 24 October 1910 |
| Citation | 131 S.W. 924,152 Mo.App. 706 |
| Parties | LAWSON R. BARKER, Respondent, v. LEWIS PUBLISHING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
AFFIRMED.
Judgment affirmed.
Barclay Fauntleroy & Cullen for appellant.
(1) The plaintiff declares upon a contract whereby defendant agreed to pay $ 1000 to the person who sent in the greatest number of subscribers before November 15th, and remitted for same prior to December 15th. The only contract proved required that subscriptions be obtained before November 1st and paid for within thirty days thereafter, and plaintiff sued upon one cause of action and was allowed to recover on another. For this complete failure of proof the judgment of the lower court should be reversed. Green v. Cole, 127 Mo 598; Clements v. Yeates, 69 Mo. 625; Cole v. Armour, 154 Mo. 351; Laclede Co. v. Iron Works, 169 Mo. 154; Faulkner v. Faulkner, 73 Mo. 327; Halpin Co. v. School District, 54 Mo.App. 376; Feurth v. Anderson, 87 Mo. 353; Heman v. Glann, 129 Mo. 325; Wilkerson v. Farnham, 82 Mo. 677. (2) The printed articles in the Woman's National Daily are wholly insufficient to establish any change in the terms of the contract touching the contest. Such printed articles appearing long after the close of the contest are narrations relating to past events, and there is not a scintilla of evidence tending to prove that the person who inserted them had such power or authority as would authorize him to make or change the contract of the corporation. Spurlock v. Railroad, 125 Mo. 404; Barre v. Council Bluffs Ins. Co. (Iowa), 41 N.W. 373; Gold Mine Co. v. Fraser (Colo.), 29 P. 667; Hollis v. State Ins. Co., 65 Iowa 456, 21 N.W. 774; Miner v. Edison Co., 50 N.Y.S. 218. (3) The court will look into the nature of the instrument itself, the surrounding circumstances, the situation of the parties, and the subject-matter of the contract, and read into said contract such conditions as the extrinsic circumstances clearly imply. One of the conditions necessarily implied is that plaintiff upon entering the contest should have notified the defendant to what class he belonged. State ex rel. v. Town of Richmond, 20 Wis. 302; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25; Williams v. Railroad, 153 Mo. 534; Dobbins v. Edmunds, 18 Mo.App. 307; Price v. Evans, 26 Mo. 30; Shuey v. U.S. 92 U.S. 73; Amis v. Conner, 43 Ark. 337; Williams v. Railroad, 191 Ill. 610; Jones v. Bank, 8 N.Y. 228; Franklin v. Heiser, 6 Blachtf. (U.S.) 426; Howland v. Lounds, 51 N.Y. 604, 10 Am. Rep. 654; Arnold v. Cason, 95 Mo.App. 440; Easterly v. Criswell, 58 Mo.App. 471; Brewington v. Mesker, 51 Mo.App. 348; Embry v. Hargadine, 127 Mo.App. 383; Goss v. Lumber Co., 115 Mo.App. 214. (4) The evidence in this case shows clearly that plaintiff did not have the greatest number of subscribers of any agent in his class. The substantive facts on this issue are undisputed, and reasonable men can draw only one inference from the facts proved, and whether or not this verdict stands resolves itself into a question of law. The lower court should have sustained defendant's demurrer, and this court should reverse the case because there is no evidence to sustain the verdict. Knorpp v. Waggener, 195 Mo. 662; Summerville v. Stockton, 178 Mo. 12. (5) The instruction given by the court on plaintiff's motion is erroneous, because it fails to define the issues, and refers the jury to the advertisement to ascertain the issues. Fleischman v. Miller, 38 Mo.App. 181; Margrave v. Railroad, 183 Mo. 119; Dassler v. Wisley, 32 Mo. 59. (6) The instruction tendered by the plaintiff and given by the court is erroneous, because under it the jury were given authority to interpret the rules. It was the duty of the court to interpret the written and printed rules, and to tell the jury what was the meaning of the contract. Loesch v. Casualty Co., 176 Mo. 668; State v. Brown, 171 Mo. 487; Gleason v. Railroad, 112 Mo.App. 129.
Chas. J. Harrison and Henry Higginbotham for respondent.
(1) Where plaintiff's testimony is sufficient to make a prima facie case, then although the testimony in favor of the defendant is all one way, and although the plaintiff offers nothing to contradict that presented by defendant, still the credibility of such testimony is for the jury and not for the court. Bryan v. Wear, 4 Mo. 106; Wolff v. Campbell, 110 Mo. 114; Gordon v. Burris, 141 Mo. 602; Seehorn v. Bank, 148 Mo. 256; Ford v. Dyer, 148 Mo. 528; Gannon v. Laclede Gas Light Co., 145 Mo. 502; Vincent v. Means, 184 Mo. 327; Newry v. Norman, 204 Mo. 173; Hunter v. Wethington, 205 Mo. 284; Davidson v. Transit Co., 211 Mo. 320; Porter v. Stockyards Co., 213 Mo. 372; City of Poplar Bluff v. Hill, 92 Mo.App. 17; Kingsbury v. Joseph, 94 Mo.App. 298; Hugumin v. Hinds, 97 Mo.App. 346; Dodd v. Giseffi, 100 Mo.App. 311; Chinn v. Railroad, 100 Mo.App. 576; Holland v. Railroad, 105 Mo.App. 117; Whitson v. Bank, 105 Mo.App. 605; Dawson v. Wombles, 111 Mo.App. 532; Bank v. Hammond, 124 Mo.App. 177; Thompson on Trials, sec. 1037. (2) Failure of a party to produce documentary evidence within his control warrants an inference that the documents, if produced, would be against him. Shields v. Hobart, 172 Mo. 491; McCue v. Stumpf, 180 Mo. 673; Mason v. Perkins, 180 Mo. 702; Bank v. Nichols, 202 Mo. 309; Connecticut, etc., Ins. Co. v. Smith, 117 Mo. 261; Pomroy v. Benton, 77 Mo. 64; Mosby v. Commission Co., 91 Mo.App. 500; 1 Moore on Facts, secs. 123, 581 et seq. (3) Nelson's claiming prize was not part of res gestae. It was a mere narration of a past occurrence and self-serving declaration, not concommitant with the principal act. 1 Greenleaf on Ev. (Lewis Ed.), secs. 108, 110; State v. Rider, 90 Mo. 54, 62; State v. Day, 100 Mo. 242. (4) An instruction which sets out all the facts necessary to entitle the plaintiff to recover is sufficient, even though it may add the words, "as stated in the petition," or other similar expressions. Hartpence v. Rogers, 143 Mo. 623; Lackland v. Railroad, 101 Mo.App. 420; Yost v. Silvers, 138 Mo.App. 524; Brown v. Railroad, 104 Mo.App. 691.
This is a suit on a contract for a prize. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is a farmer and resides in Illinois near the small town of Versailles. Defendant is an incorporated company engaged in the publishing business in the city of St. Louis. About the first of the year 1906, or the latter part of 1905, defendant conceived the plan of launching a new publication, known as the Woman's National Daily, and announced the fact by advertisement in several of its publications. In such advertisements defendant said it proposed to commence the publication of the Woman's National Daily within a few months, as soon as its presses and other equipment could be obtained, and that it desired to procure one million subscribers therefor in advance of the first issue of the paper. The proposed Woman's National Daily was to be issued to subscribers at the rate of one dollar per year, consisting of 313 issues annually, or a paper daily except Sundays. This advertisement solicited agents for the purpose of procuring subscriptions for the newspaper at one dollar per year and offered twenty-five per cent commission on each and every paid up subscriber obtained. Besides the commission of twenty-five per cent on each paid up subscription, defendant offered as well $ 10,000 in special prizes to the ten agents who procured the largest number of subscribers in each of ten separate classes therein indicated. The ten separate classes, under each of which a $ 1000 prize would be awarded to the agent securing the largest number of paid up subscriptions in accordance with the rules of the contest, were clearly set forth in the advertisement. Under class 1 an offer of $ 1000 in cash was made to the agent in a rural district outside of a town or city who should send the greatest number of subscriptions to defendant prior to the issue of the first regular number of the Woman's National Daily. Under Class 2, $ 1000 was offered to the agent in a town of less than 500 inhabitants who should send to defendant the greatest number of subscriptions before the first issue of the Woman's National Daily. Under Class 3, an offer of $ 1000 was made to the agent in a town of less than 1000 and more than 500 inhabitants who should send defendant the greatest number of subscriptions prior to the first issue of the Woman's National Daily. It is unnecessary to set forth the substance of the remaining seven classes, under each of which a $ 1000 prize was offered to the several agents who should obtain the largest number of subscribers, as they are unimportant to a disposition of the case.
Certain rules, under which the contest was to be conducted and by which it was to be controlled, were promulgated at the same time in such advertisement. Among these, it was stipulated the subscriptions should be forwarded on blanks furnished by defendant on request; that such subscriptions should be straight and bona fide, in that each should represent a genuine subscriber. By another provision therein each agent was required to send his name and complete postoffice address with the first list of subscribers on the blank. While the original proposition contained in defendant's advertisement required the agents to procure the number of subscribers relied upon prior to the first issue of the paper, it did not require payment therefor in advance of such publication; on the contrary it expressly stated that it was not necessary for the subscribers or agents to pay for the paper in advance of the publication, unless they...
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