Froug, Smulian & Co. v. Outcault Advertising Co.
| Decision Date | 06 July 1914 |
| Docket Number | (No. 102.) |
| Citation | 168 S.W. 1075 |
| Parties | FROUG, SMULIAN & CO. v. OUTCAULT ADVERTISING CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.
Action by the Outcault Advertising Company against Froug, Smulian & Co. Judgment for plaintiff, and defendants appeal. Affirmed.
This was a suit by appellee against appellants on a written contract, dated September 9, 1909, for certain advertising cuts sold and delivered to them. Appellee relied upon its written contract for the sale of said cuts, which was signed by appellants "per Gavin," who was appellant's advertisement writer, but who had no authority to execute the contract, according to the evidence offered on behalf of appellants, and they further say the contract was never ratified by them.
The cause was tried by the court sitting as a jury, and was heard upon substantially the following evidence: A. Froug testified that he was a member of the defendant company, and that he did not make the contract, and the advertising man who made it had no authority to make it, and that he was unaware that it had been made until statements of the account were received, at which time Gavin advised him that appellee would furnish cuts for advertising for four weeks each month, but that they were to pay only for the cuts which were used, and that as the statements of account came in from plaintiff he would ask Gavin which cuts had been used, and these had been paid for. Witness did not know whether the cuts were received at one time or at different times, but he received a statement each month from plaintiff, which statements included all the cuts furnished to the time of the rendition of the statement, and several remittances were made covering the cuts which had been used. Witness did not know there was a written contract until plaintiffs requested payment of the balance due, payment of which was refused, and a tender made of the cuts which had not been used. Appellants' stenographer and bookkeeper also testified and substantially corroborated Mr. Froug.
It is not denied that appellants would be liable for the amount for which judgment was rendered, if the contract sued on was a valid and enforceable agreement, but appellant says they were not bound by the terms of this contract, because their employé who executed it had no authority so to do, and the contract was never ratified by appellants. Witness Froug admits the use of cuts after being advised of the existence of the contract, but it is insisted that there was no ratification, because Froug was misinformed as to its terms. Gavin was not in the employment of appellant at the time of the trial, and did not testify.
The court found the facts to be that Gavin had no authority to execute the contract, but appellants had knowledge that some of the cuts had been received and used in their business, and did not demand of or call upon appellee for a copy of the contract under which the cuts were sold and delivered, and that by their continued use of the cuts, and by their failure to disaffirm or deny the authority of their agent, they, in effect,...
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