Outcault Advertising Co. v. Jones
| Decision Date | 20 October 1925 |
| Citation | 239 P. 1113,119 Or. 214 |
| Parties | OUTCAULT ADVERTISING CO. v. JONES. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.
Action by the Outcault Advertising Company against Guy D. Jones wherein defendant asks affirmative relief by cancellation of contract for fraud. Decree for defendant, and plaintiff appeals. Affirmed.
See also, 234 P. 269.
This cause was started as an action at law to recover the sum of $109.20 claimed by the plaintiff from the defendant on a contract for the lease of advertising material. A similar contract is set out in full in Outcault Advertising Co v. Buell, 71 Or. 52, 141 P. 1021. The defendant filed an answer, denying the material allegations of the complaint and set up an affirmative defense, alleging fraud in the inception of the contract and prays for the cancellation thereof. The reply denies the affirmative defense. The case was tried as a suit in equity. The decree was rendered in favor of the defendant, canceling the contract and awarding the defendant costs and disbursements. The contract in this case contains this clause:
"Purchaser affirms that the only representation made as an inducement to sign this contract related to the merits of the 'adv' service bought, and that he has authority to make this contract."
The alleged fraud consisted of representations of plaintiff's agent to the effect that he had just consulted the only newspaper in the city of Gresham, where the defendant was engaged in business, and that the "ad" to be furnished by the plaintiff would cost 12 cents a line for one insertion and 10 cents a line per issue for successive insertions in that paper; that the representation was false intentionally and willfully made for the purpose of inducing the defendant to lease the advertising; that the defendant believed the representations; relied thereon and thereby was induced to execute the contract; that if he had known that the advertisement would cost 20 cents a line per issue he would not have entered into the contract. The plaintiff filed a reply denying the affirmative defense. When the first installment of the advertising material was delivered, he took it to the said newspaper and was then informed that the publication of the material would cost 20 cents a line per issue. Thereupon the defendant refused to use the advertising material, promptly returned it, and rescinded the contract. The plaintiff contends that the defendant could have ascertained by inquiry from the newspaper the exact cost of printing the advertising material, that the newspaper was only about two blocks from the place of business of the defendant, that if he was deceived and misled it was due to his own want of care; that defendant was precluded by the clause in said contract quoted above from alleging or proving the alleged fraud.
C. D. Christensen and Maurice W. Seitz, both of Portland, for appellant.
McGuirk & Schneider, of Portland, for respondent.
COSHOW, J. (after stating the facts as above).
The plaintiff substantially concedes that all the elements of fraud are alleged in the complaint, excepting two which it states in his brief in the following form: "That the complaining party did act in reliance upon it; that the complaining party suffered injury thereby." The answer contains this allegation:
"That the said defendant, relying upon said fraudulent misrepresentations, agreed to lease the said service from the said plaintiff with the specific understanding however, that the said service should cost only the sum of ten (10) cents per inch per insertion, as stated and represented by said plaintiff's agent, William E. Slanden."
We think this allegation is a sufficient averment that the defendant relied upon the false representations alleged to have been made by the plaintiff. It does not require argument to convince one that the answer alleges sufficient cause to show injury to the defendant. By promptly rescinding the contract, he received no benefit from it. The plaintiff is now seeking to recover from the defendant, $109.20, the full price charged for the lease of the advertising material. This is sufficient to show injury to the defendant, who does not seek to recover damages, but to be relieved from the burden of the contract.
The plaintiff represented to the defendant that he had inquired of the newspapers and had come directly from a newspaper office to solicit the order from the defendant. The cost of publishing the advertising was a material matter. The defendant had the only jewelry store in Gresham. The cost of publishing the advertising offered by the plaintiff would largely govern, whether or not the defendant would lease it. The plaintiff retained the title to all advertising material agreed to be furnished to the defendant. This material consisted of cuts and type the use of which only was being offered to the defendant for the purpose of inducing the defendant to enter into the contract leasing the advertisements. The plaintiff represented to him that its publication in a...
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...216 P. 228; Billups et al. v. Colmer, 118 Or. 192, 200, 203, 244 P. 1093; Outcault Advertising Co. v. Jones, 119 Or. 214, 223, 234 P. 269, 239 P. 1113; Fleishhacker v. Portland News Pub. Co., 158 Or. 476, 554, 556, 77 P.2d 141; 24 Am.Jur. 102, Fraud and Deceit § 267; Annotation 56 A.L.R. 10......
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