Bluthenthal & Bickart v. May Advertising Co.
| Decision Date | 16 December 1915 |
| Docket Number | 70. |
| Citation | 96 A. 434,127 Md. 277 |
| Parties | BLUTHENTHAL & BICKART v. MAY ADVERTISING CO. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.
"To be officially reported."
Suit by the May Advertising Company against Bluthenthal & Bickart. Judgment for plaintiff, and defendant appeals. Affirmed.
J. Kemp Bartlett, of Baltimore (J. Kemp Bartlett, Edgar Allan Poe, L B. Keene Claggett, and R. Howard Bland, all of Baltimore, on the brief), for appellant.
Israel B. Brodie, of Baltimore (Philip Sachs, of Baltimore, on the brief), for appellee.
The May Advertising Company, the appellee on this record, is a New York corporation. As its name indicates, it is engaged in the advertising business, which it conducts by painting bulletin boards, erecting them along the lines of railroads, and by securing wall space and painting thereon such advertisements on signs as its customers may desire. Carl May is the president, and Wilson C. Reed the vice president, of the company. The office of the company is in New York City, and it has a shop in Pittsburgh, Pa., where sketches are made and the metal bulletin boards are painted. The appellant, Bluthenthal & Bickart, is a Maryland corporation, and is a blender of whiskies and gin, which it sells under its own trade-marks or labels to the trade in a number of Southern states. Some of its brands of whisky are known as Old Joe, Mobile Buck, "Rx" Malt, and Mark Rogers. Aaron Bluthenthal is president, and Monroe L. Bickart secretary and treasurer, of the company.
In the early part of the year 1912 the parties to this case entered into a written contract, the terms of which are found in three letters appearing in the record, under which the appellant employed the appellee to paint from sketches, approved by the appellant, a thousand or more square feet of wall space on locations to be selected by the appellee in certain towns and cities in the south. The contract provided that the work was to be done in a first-class and workmanlike manner, and that the appellant should pay, 30 days after the completion of the showing in each city, the sum of 6 cents per square foot for the actual number of square feet painted in each city. A list of the cities in which the painting was to be done, as well as the approximate wall space to be painted in each city, appears in the contract. The appellee claimed to have performed its work under the contract in seven of the cities mentioned therein, and demanded payment for the work done. Its claim amounted to $4,632.91. This claim the appellant refused to pay. The appellee brought suit against it in the superior court of Baltimore city, and recovered a judgment. This appeal was taken by the appellant, the defendant below, from that judgment. The suit was brought under the Speedy Judgment Act, and the declaration contained the common counts, and one special count, which set out the contract between the parties and alleged the completion of the contract in certain specified cities; the refusal of the defendant to pay for any of the work done; and that the defendant had directed the plaintiff not to proceed with the work in any of the other cities mentioned in the contract. At the trial the appellee confined its claim for work actually done in pursuance of the contract. It did not seek to recover for the act of the defendant in preventing, as alleged, the performance of the contract in other cities. The contract contained a number of provisions which are not involved in this controversy. The three provisions which are involved are these: (1) That the plaintiff was personally to select the locations, and to use its best judgment in so doing. (2) That the painting was to be done in a first-class and workmanlike manner. (3) That the wall display should make a proper and satisfactory showing. These obligations were expressly assumed by the plaintiff, and in addition to these, the defendant claims that the plaintiff was under an obligation to do the work by its own men.
Apart from certain technical defenses, which were abandoned in this court, the defenses relied on were, first, that in many instances in each city, the work was not done in a first-class and workmanlike manner; secondly, that in some instances the plaintiff did not personally select the locations; thirdly, that in many cases the locations selected were poor, and the wall display was poor, and the showing not satisfactory; and, fourthly, that the painting was done in each city, not by the plaintiff's own men, but by local men employed by the plaintiff. This was admitted by the plaintiff, and the reason that local men were engaged to do the work was, as stated by Carl May, that he was able to secure better locations by making arrangements with local men, because they were able to give a better distribution for locations than he would be able to secure. On other questions of fact there was decided conflict in the testimony--that of the plaintiff tending to show that the work was done as required by the contract; that of the defendant that in many instances the locations were poor, the workmanship inferior, and the showing unsatisfactory.
It is needless to discuss this conflict in the evidence, as all the material questions of fact were submitted to the jury under the instructions of the court. It is important, however, in this connection, to state that testimony was offered on behalf of the plaintiff to the effect that the defendant was informed prior to the beginning of the work of painting that local advertisers had been engaged to do the work, why this arrangement with local men had been made, and that that arrangement had been approved and assented to and acquiesced in by the defendant. The defendant never attempted to rescind the contract, but permitted the work to proceed until all the work sued for in this case had been done. It then expressed its willingness, after having inspected the work, "to pay for the signs that have been approved as good and fair," and in its letter of September 3, 1912, to the plaintiff, a number of signs are designated as "good" or "fair."
During the course of the trial, seven exceptions were reserved by the defendant--one to the action of the court in excluding a juror from the panel before he had been sworn, five to rulings on evidence, and one to the ruling on prayers submitted at the conclusion of the whole case.
The defendant contends that the court committed reversible error in refusing its first and fourth prayers. The first prayer was treated as a demurrer to the evidence, and asked that the jury be instructed to find their verdict for the defendant. Conceding that it could so be treated in the form in which it was drawn, which, however, we do not decide, we are of opinion that it was properly refused. The defendant invokes in support of this prayer the doctrine announced and applied in B. & O. R. R. Co. v. Brydon, 65 Md. 198, 611, 3 A. 306, 9 A. 126, 57 Am. Rep. 318, and Eastern Advertising Co. v. McGaw, 89 Md. 72, 42 A. 923. In the first of these cases it was held that in a contract where the quality and acceptability of the coal were left to the approval of a third party, there could be no recovery, unless acceptance by such third party be shown, or unless it be shown that the coal delivered was rejected by him in bad faith or fraudulently. This rule has been frequently applied by this court. In the second case it was shown that the appellant, without the consent of the appellee, had sold its business of street car advertisement to another company, but the appellee refused to assent to the assignment of the contract to the purchaser. It was contended that upon the authority of these cases there could be no recovery, first, because the work was not satisfactory to the defendant, and, secondly, because the work of painting the signs on the walls of houses had been done by local advertisers in the various cities, without the defendant's knowledge or consent. It is sufficient to say in reply to these contentions, first, that the defendant did approve a great many of the signs and expressed its willingness to pay for them, and, secondly, that there is evidence that it consented that the painting of the signs should be done by local advertisers. In view of this evidence the court was right in not withdrawing the case from the jury. It is the function of the jury to pass on the weight and credibility of the testimony, and it is the duty of the court to state the law applicable to it.
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