Otto Baedeker & Assocs., Inc. v. Hamtramck State Bank

• Decision Date: 02 March 1932
• Docket Number: No. 106.,106.
• Citation: 257 Mich. 435,241 N.W. 249
• Court: Michigan Supreme Court
• Parties: OTTO BAEDEKER & ASSOCIATES, Inc., v. HAMTRAMCK STATE BANK.

257 Mich. 435

241 N.W. 249

OTTO BAEDEKER & ASSOCIATES, Inc.,

v.HAMTRAMCK STATE BANK.

No. 106.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Wayne County; Arthur Webster, Judge.

Action by Otto Baedeker & Associates, Inc., against the Hamtramck State Bank. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.Welsh, Bebout, Hill & Lee, of Detroit, for appellant.

Lightner, Hanley, Crawford & Dodd and Beaumont, Smith & Harris, all of Detroit (A. George Abbott and Lewis S. Robinson, both of Detroit, of counsel), for appellee.

FEAD, J.

The suit is on a contract ‘for special representation in Baedeker's International Trade Developer.’ The defense was fraud, that defendant's cashier was induced by the deception of plaintiff to execute the instrument without reading it and without knowing it was a contract.

The proposition was presented to defendant through the mail, by letter and form of contract, in October, 1928.

The letter inclosed a clipping, containing defendant's name, its capital and surplus, names of some of its officers and correspondent banks, with statement that it represented the way defendant was recorded on plaintiff's card index record of data for publication in the next issue of the book. The letter was divided by a line. Above the line defendant's approval or correction of the clipping was requested. Below the line was a description of plaintiff's publication and the suggestion that defendant read and accept the offer inclosed if it desire special featuring in the book.

The contract form was larger than the letter. At the left was a scroll bearing the name of plaintiff and International Transportation Ass'n, Inc. At the extreme right top was the motto: “Before You Invest-Investigate' for when accepted ‘A Contract Is a Contract.” Just below and at the left was a picture of the book. Opposite it, at the right, in small type, was a blocked out offer to publish an eight-inch announcement for the undersigned at $100 per year for two years. Between the book and the offer was a skeleton arrow pointing to the offer block and bearing the words, ‘Here is our offer.’ Below the arrow, in large type, were ‘For Special Representation in Baedeker's International Trade Developer.’ The acceptance words, in two lines of small type, ran across the form below the caption. Immediately below this was a questionnaire for the information desired, widely spaced and occupying over half the form, which defendant filled out with the name and location of its bank, its financial resources, names of its president and cashier, the year of its charter, a list of special activities, correspondent banks, and bankers' associations of which it was a member. At the lower left part of and indented in the questionnaire, in block of small type, was a description of Baedeker's International Travel Book, and the statement that advertisers accepting the offer would have free publication in the travel book during the life of their contract. Below was the place for signature, under the first line of which was the ‘Name under which the activity is conducted,’ the other lines being for signature of authorized officer and his title and location and date.

It may be noted that the cashier returned the form without his signature. Plaintiff sent it back to him, calling attention to the omission, and he then signed and sent it to plaintiff.

The contract itself was not confused, as in American Travel & Hotel Directory Co. v. Curtis, 236 Ill. App. 236, and American Travel & Hotel Directory Co. v. The Roycrofters, 125 Misc. Rep. 853, 213 N. Y. S. 42, in which it was held fraudulent. And the accompanying letter was more definite and specific in distinguishing between free and paid representation than the one considered in International Transp. Ass'n v. Bylenga, 254 Mich. 236, 236 N. W. 771, 772. Moreover, the form of contract contained the arrow, the absence of which was noted in the latter case. Upon the face of the papers alone, the rule would be applicable that one who has executed a contract will not be heard to say that he did not read it. American Travel & Hotel Directory Co. v. Van Blerkom, 216 App. Div. 28, 214 N. Y. S. 753;International Transp. Ass'n v. Mollen, 133 Misc. Rep. 85, 230 N. Y. S. 665;Publication Division, etc., Ass'n v. Blakeslee, 225 App. Div. 229, 232 N. Y. S. 508;Shannon v. International Transp. Ass'n, 42 Ga. App. 297, 155 S. E. 773.

The testimony also shows that, in 1928, 5,090 of the forms were returned to plaintiff with the index card approved or corrected and only 190 contracts signed. Of 132 banks in Michigan who returned the card only 5 executed the obligation to pay.

It is evident that it cannot be said, as a matter of law, that an ordinarily prudent person would be likely to sign the contract without reading it.

However, defendant presented evidence of deception and fraud which does not seem to have been submitted in the cases above cited.

Otto Baedeker has no connection with plaintiff. He was not clearly identified, but plaintiff claimed he was a German who wanted his name perpetuated and plaintiff assumed to do it. Defendant's contention is not without force, that the use of the...