Ehrlich v. Willis Music Co.

• Decision Date: 19 May 1952
• Citation: Ehrlich v. Willis Music Co., 113 N.E.2d 252, 93 Ohio App. 246, 51 O.O. 8 (Ohio App. 1952)
• Parties: , 51 O.O. 8 EHRLICH v. WILLIS MUSIC CO. . Hamilton County
• Court: Ohio Court of Appeals

Page 246

93 Ohio App. 246

113 N.E.2d 252, 51 O.O. 8

EHRLICH v. WILLIS MUSIC CO.

Court of Appeals of Ohio. Hamilton County.

May 19, 1952.

Robert A. Goldman, Cincinnati, for appellant.

Irwin I. Arnoff and H. W. Young, Cincinnati, for appellee.

MATTHEWS, Judge.

This is an appeal by the plaintiff from a judgment in his favor for $23.17 at a trial without a jury, rendered at the close of his evidence. The appeal, therefore, raises the question of whether there is evidence of ultimate facts which require a judgment for a larger sum.

In his amended bill of particulars, the plaintiff alleged that he purchased an Admiral television set and paid the purchase price of $23.17 in full therefor, that the defendant refused to deliver said television set to him, and that, by reason thereof, he had been damaged in the sum of $274.95, for which he prayed judgment.

The defendant answered, denying that it had sold to the plaintiff a television set and alleging that if its employee accepted $23.17 and gave a receipt in full, it did so under a mistake of fact and law, resulting from the misrepresentation of the plaintiff.

It appears from the bill of exceptions that on Sunday, the 30th day of September, 1951, the plaintiff read in the Cincinnati Enquirer an advertisement as follows:

'Television

"16' Admiral Console T. V.

'$22.50

'Including federal tax and parts warranty

'The Willis Music Co.

'124 E. 4th St.'

It is not contended that this advertisement constituted an offer. It was no more than an invitation to patronize the store. 1 Restatement of the Law of Contracts, 32, Section 25, comment a.

The plaintiff was present at the defendant's store when it was opened the following morning and entered before all the personnel had arrived and before they were organized for business. He was the first customer to enter. A salesman having charge of the television department arrived at 9:17 a. m., and seeing the plaintiff asked him what he wanted. The plaintiff showed him the advertisement and told him he would like to see the Admiral. The salesman told him there was no Admiral in that store, but that the defendant had such a set in another of its stores in Covington, Kentucky.

The plaintiff was asked this question on cross-examination: 'You were already told it was a mistake at that time, weren't you?' And he answered: 'The gentleman had said it was a mistake but he would stand behind it as I told you.'

The evidence is clear that the plaintiff is an intelligent, educated man, with considerable business experience. He knew that $22.50 was not one-tenth the price of an Admiral television set of the type described. His haste in seeking to take advantage of the advertisement justifies the implication that he knew there was some mistake--and the salesman expressly told him that there had been a mistake.

There is no evidence that the salesman had authority to fix the price, other than the fact that he was in the store, clothed with apparent authority to sell in the ordinary course of business. That ordinarily would be sufficient.

There is other evidence that tends to prove those with whom the plaintiff dealt had authority, but, as already stated, we are concerned on this appeal in determining whether there is substantial evidence to support the court's conclusion of lack of authority.

The question is whether that apparent authority arises when the customer suspects, or has reasonable grounds to suspect a lack of authority, and is also told that the salesman is acting on an apparent authority created by a mistake.

In 1 Restatement of the Law of Agency, 159, Section 65, comment a, it is said: 'Unless otherwise agreed, authority to sell does not include authority * * * to make a gift' of the subject matter.

While this case does not involve the authority of a selling agent to make an outright gift, it does present a case of an agent disposing of his principal's property for less than one-tenth of its market value to one who has full knowledge of...