Buster Brown Co. v. Valley Dry Goods Co.

• Decision Date: 30 November 1908
• Docket Number: 13,580
• Citation: 94 Miss. 856,47 So. 549
• Court: Mississippi Supreme Court
• Parties: BUSTER BROWN COMPANY v. VALLEY DRY GOODS COMPANY

47 So. 549

94 Miss. 856

BUSTER BROWN COMPANY v. VALLEY DRY GOODS COMPANY

No. 13,580

Supreme Court of Mississippi

November 30, 1908

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

The Buster, etc., Co., appellant, was plaintiff in the court below; the Valley, etc., Co., appellee, was defendant here. From a judgment in plaintiff's favor for much less than the sum demanded in the suit it appealed to the surpeme court.

The appellee, a dry goods dealer in Vicksburg, Miss., entered into a contract with appellant for its advertising service for a year, consisting of certain cuts, type, etc., suitable to its business. The contract was evidenced by a writing duly accepted, in these words:

"Gentlemen For one year, beginning right away, ship us by express at our expense, your 'ad service,' consisting of one Buster Brown cut for each week. We agree to pay you net cash on receipt at the rate of three dollars per week, we to have the exclusive right to use same in our city only, and to hold said type and cuts subject to your order when this contract expires."

After entering into this contract, and after appellee had begun to use the cuts, appellant sold other advertising cuts to Rice &amp Co., furniture dealers in the city of Vicksburg. After some months had elapsed and appellee had failed to pay any further installments of the contract price, appellant brought suit for $ 121, being the amount alleged to be due at the date of suit. Appellee defended on the ground that under the terms of the contract he was entitled to the exclusive use of all "Buster Brown" advertising matter in the city of Vicksburg. The contention of appellant, however, was that the word "exclusive" in the contract meant that appellee was to have the exclusive use of the particular cut sent it each week, and that it did not prevent appellant from selling other cuts to other dealers in Vicksburg, since appellee could not expect, for the small sum of three dollars a week, that appellant would be debarred the privilege of furnishing its advertising matter to other subscribers in that city. The court refused a peremptory instruction for plaintiff below, and the jury returned a verdict for $ 16 that amount being admitted by defendant, and judgment was rendered for said last named sum in plaintiff's favor.

Reversed.

R. V. Boothe, for appellant.

The whole controversy centers in and circles around the meaning of the word "exclusive" as used in the contract.

Plainly and emphatically beyond question, it seems to me, according to all rules of construction, the word means, that the Buster Brown Company obligated itself simply not to duplicate in the city of Vicksburg the same advertising cuts it was sending to the Valley Dry Gods Company; this and nothing more.

Otherwise appellant, under the meaning given to this word by appellee and, strange to say, by the learned circuit judge, would have been debarred the privilege of furnishing advertisement cuts to a dramshop, a livery stable, a furniture house or...