Outcault Advertising Co. v. Buell

• Decision Date: 02 June 1914
• Citation: 141 P. 1020,71 Or. 52
• Parties: OUTCAULT ADVERTISING CO. v. BUELL.
• Court: Oregon Supreme Court

141 P. 1020

71 Or. 52

OUTCAULT ADVERTISING CO. v. BUELL.

Supreme Court of Oregon

June 2, 1914

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by the Outcault Advertising Company against H. W. Buell. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

By its complaint filed August 17, 1911, the plaintiff alleges, in substance, that the defendant sent to it a written order of which the following is a copy:

"Date June 9, 1910. Order No. 608. To Outcault Advertising Co 334 Dearborn St., Chicago, Ill.: Ship us, at our expense your Little House Maid Furniture 'Ad' service, to cover a period of one year, beginning July 1, 1910. This service to consist of: 52 Little House Maid cuts; 250 Little House Maid souvenir calendar post cards for each month; one font Little House Maid type (10 lbs. in font).

"I agree to pay you net cash monthly, at the rate of $1.65 per week for two years, I to have exclusive right to use the above Little House Maid 'Ad' service in our city only, and to hold type and cuts subject to your order when this contract expires. This contract cannot be canceled. Ship all at one time if possible. H. W. Buell. Elgin Ore."

It is further averred that the plaintiff accepted the order and performed everything required of it by the contract, and that the defendant has refused to pay for the same except the sum of $14.85. The complaint concludes by demanding a judgment for $156.75. The defendant denies the whole complaint. As a further defense he alleges the following:

"That as a part of said contract and a condition upon which he signed the order set forth in plaintiff's complaint, plaintiff, by and through its agent, represented the entire advertising service, including the publication in a local paper, would not cost defendant an amount exceeding $10 per month, and said representations were relied upon by defendant and constituted a part of said contract and were the inducement for his signing the said order; that after the signing of the order set forth in plaintiff's complaint, and on, to wit, the 17th day of June, 1910, defendant ascertained said entire advertising service would cost defendant an amount not less than sixteen ($16.00) dollars, and probably twenty-five ($25.00) dollars, per month, whereupon defendant immediately countermanded said order and contract, notified the plaintiff not to ship any material included in and under said order and contract; that prior to the receipt of said countermand by plaintiff plaintiff had shipped material under said contract and order amounting to the sum of $14.85, which sum defendant paid; that thereafter, notwithstanding said countermand of defendant, and over and against his protest and notice that said material had not and would not be accepted by him, but was subject to plaintiff's order, plaintiff wrongfully continued to ship goods to defendant claiming authority under said contract and order which constitutes the claim now made by plaintiff against defendant."

The reply traversed the answer. At the close of the plaintiff's case on the evidence the defendant moved for a judgment of nonsuit, which was denied. The defendant then put in some testimony about the representations of the agent who took the order, together with some letters hereinafter mentioned, and rested. Thereupon the defendant renewed his motion for a nonsuit, and the plaintiff moved for a directed verdict. The court put an end to the case by overruling plaintiff's motion and entering a judgment of nonsuit, from which the plaintiff appeals.

Turner Oliver, of La Grande, for appellant. L. Denham, of Elgin, for respondent.

BURNETT, J. (after stating the facts as above).

The order, as stated, was introduced in evidence and identified. The letter of the plaintiff to the defendant accepting the order was also proven and read in evidence, and testimony was given on behalf of the plaintiff showing that a part of the printed matter ordered was sent to the defendant by express and paid for, amounting to $14.85. There was also read as part of the cross-examination of plaintiff's witness a letter addressed by the...