Jones v. Durgin
| Citation | 16 Mo.App. 370 |
| Parties | E. D. JONES ET AL., Appellant, v. F. A. DURGIN, Respondent. |
| Decision Date | 20 January 1885 |
| Court | Court of Appeal of Missouri (US) |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Affirmed.
PATRICK & FRANK, for the appellants.
MCKEIGHAN & JONES and A. R. TAYLOR, for the responddent.
The plaintiff and the defendant entered into the following contract:--
“ST. LOUIS, March 11th, 1878.
I agree to pay the Western Publishing Company for the insertion of my advertisement to the amount of three pages printed matter in its book to be called--‘A Tour of St. Louis, or the Inside Life of a Great City.'
One cent for each printed page of such advertisement in every volume which may be disposed of to business men, farmers, merchants, etc., in the states of Missouri, Kansas, Arkansas, Texas, and Louisiana.
F. A. DURGIN.”
The plaintiffs claim that they published ten thousand copies of the book containing the defendant's advertisement as per contract, and disposed of them according to its terms. That the defendant failed to pay as he agreed, wherefore they ask judgment for $300.
The defendant by answer denies each allegation of the petition, and sets up the following affirmative defences:--
That the agreement above set out does not contain the entire contract, because it was understood between the parties, at the date of its execution that the book mentioned should be a moral and respectable book, fit for the reading of any one,--and that the book published by plaintiffs was filled with indecency and obscenity, which rendered it an indecent and obscene book, unfit to be placed in families. That on account thereof the defendant gave notice to the plaintiff, as soon as the first edition of 500 of said book was published to discontinue his advertisement.
That the contract did not specify the length of time said book might be published, or the number of volumes which the plaintiffs might publish; that the plaintiffs first published an edition of 500 and that the defendant thereupon at once notified the plaintiffs not to insert his advertisements in any more of said books, by which means the contract was determined and ended.
The answer was denied by reply.
The case was submitted to the court, upon an agreed statement of facts, which constituted all the evidence offered in the case of either party, and which is as follows:--
“It is agreed by and between said plaintiffs and defendant as follows:--
1st. That the defendant signed the instrument of writing dated March 11, 1878. That upon the publication of the first edition of 500 copies of the book mentioned in plaintiffs' petition, and before any other edition of the same was published, plaintiffs made out and presented defendant with a bill of $15, the price of defendant's advertisement in said book for said first edition. Upon the presentation of the same said defendant refused to pay said bill, on the ground that the book so published was immoral and indecent, and was not the kind of book agreed to be published, and at the same time notified plaintiffs not to insert his, defendant's, advertisement in any more of said books, as he would not pay for them.
That notwithstanding said notice and refusal to pay, said plaintiffs continued to insert said advertisement of defendant in all subsequent editions of said book until 10,000 copies were issued and disposed of.
Changes were made by plaintiff in the subsequent editions of said book with reference to the alleged immoral parts, which changes are marked in copies of said book filed herewith as part of this agreement.
At the time of signing said writing said book was not written or published, and when defendant was solicited to sign the same he inquired of plaintiffs what kind of book it would be, and the answer was made that the book would be a moral book and fit to be placed on any man's parlor table or in his library. Whereupon said defendant signed said instrument.”
A copy of the first edition is herewith filed,...
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...therefore void. Hudson v. Browning, 264 Mo. 58; Reigart v. Coal & Coke Co., 217 Mo. 142; Campbell v. Handle Co., 117 Mo.App. 19; Jones v. Durgin, 16 Mo.App. 375; Coal Co. v. Ed. E. Squier Co., 219 S.W. 697. Suppose that plaintiffs agreed to purchase of defendant, and defendant agreed to sel......
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Halloway v. Mountain Grove Creamery Co.
... ... anything. Campbell v. Handle Co., 117 Mo.App. 19; ... Hudson v. Browning, 264 Mo. 58; Iron & Rail Co ... v. Railroad, 148 Mo.App. 173; Jones v. Durgin, ... 16 Mo.App. 370. (2) Plaintiffs cannot recover in this action ... for the contract price, even upon the theory that the writing ... ...
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... ... plaintiff manufactured the ties, offered to deliver them and ... incurred that expense under the contract. Jones v ... Durgin, 16 Mo.App. 370; Reynolds v. Walsh-Griffith ... Tie & Lbr. Co., 227 S.W. 438; Typewriter Co. v ... Realty Co., 220 Mo. 523 and ... ...
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