Mail & Times Pub. Co. v. Marks
| Decision Date | 19 November 1904 |
| Citation | 101 N.W. 458,125 Iowa 622 |
| Parties | MAIL & TIMES PUBLISHING CO. v. SAMUEL Z. MARKS AND MARKS MUSIC CO., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. WM. H. MCHENRY, Judge.
ACTION on account. The facts appear in the opinion. Judgment as prayed, from which defendants appeal.
Reversed.
S. G Van Auken, for appellants.
S. B Allen, for appellee.
The object of this action is to recover for advertising done for defendants from October 6, 1900, to December 14, 1901, valued at $ 123. The matter to be published was furnished plaintiff under the following contract, which had been assigned to S. Z. Marks by the Early Music House, and was subsequently extended to January 1, 1902:
Des Moines, Iowa Oct. 2, 1900. We hereby agree to buy of the Early Music House one Ivers & Pond Piano, style 107, mahogany, on the following terms: $ 187.50 cash when piano is called for within one year from date and $ 187.50 in advertising in the Mail & Times, such advertisements as are supplied by the Early Music House at following rates: Twenty-five cents per inch for display and fifteen cents per line for locals, said amount paid in advertising to be used within one year from date. Mail & Times Pub. Co., per R. W. Evans. The Early Music House, G. Early.
The plaintiff had not tendered the $ 187.50, nor demanded the piano, nor had it been tendered to the plaintiff. The defendant waived all claim to the remainder of the advertising, and, in his answer, asserted his readiness to furnish the piano according to the terms of the contract. These the court refused to enforce because of a supposed want of mutuality. This defect may have existed at the inception of the writing, but not after its acceptance. True, neither Marks nor the music house parted with any property, but he furnished plaintiff matter for advertisements, and availed himself of the benefits of this when done. In so doing, he incurred the obligation to pay therefor according to the written proposition of the plaintiff, or, if for any reason he could not comply therewith, to pay the reasonable value of the services rendered. This amounted to a valuable consideration, for in so doing he engaged plaintiff, instead of some one else. In other words, he yielded to the inducement to do differently than he would have done but for the plaintiff's proposition. Harlan v. Harlan 102 Iowa 701, 72 N.W. 286; Marshall Stone Co. v. Des...
To continue reading
Request your trial