Outcault Advertising Co. v. J.W. Hooten & Co.

• Decision Date: 12 November 1914
• Docket Number: 250
• Citation: 11 Ala.App. 454,66 So. 901
• Court: Alabama Court of Appeals
• Parties: OUTCAULT ADVERTISING CO. v. J.W. HOOTEN & CO.

66 So. 901

11 Ala.App. 454

OUTCAULT ADVERTISING CO. v. J.W. HOOTEN & CO.

No. 250

Court of Appeals of Alabama

November 12, 1914

Appeal from Clay County Court; E.J. Garrison, Judge.

Assumpsit by the Outcault Advertising Company against J.W. Hooten & Co. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Count 2 sets up the following contract:

Order No. 213. Aug. 26, 1911. Ship us at our expense as per sample shown your all wool ad service to cover a period of one year beginning Sept. 15, 1911. This service to consist of 52 all wool cuts. Card, right reserved. We (or I) agree to pay you net cash monthly at the rate of $2.10 per week for one year, we (or I) to have exclusive right to use the all wool ad service in our city only, and to hold type and cuts subject to your order when this contract expires. Failure to pay any installments when due renders full amount of this contract due. This contract cannot be canceled. Ship all at one time if possible. All promises and agreements are stated herein. Verbal agreements with salesmen not authorized. [ Signed] J.W. Hooten & Company.

The fifth plea is as follows:

Defendants say that there was not a valid contract made and entered into between the parties on the day of the execution of the said instrument, in that there was not a meeting of the minds of plaintiff and defendant, in that plaintiff understood in said negotiations that all it was to do was to furnish cuts for advertisement purposes at and for the sum of $2.10 per week for 52 weeks, whereas, defendants understood the contract and agreement to be that they were to receive the use of said cuts for advertising purposes and paper space in the Ashland Progress for such advertising purposes at and for the sum of $2.10 per week for 52 weeks, and under such understanding between both plaintiff and defendant, J.W Hooten, for and in behalf of defendants, signed the instrument sued on, and defendants aver that they did not discover the mistake until late in the afternoon of August 27, 1911, and immediately thereafter so notified plaintiff and in time that they need not have performed their part of the agreement as they understood it, and defendants aver that defendants were mistaken in the terms of said contract in this: Instead of receiving such service and advertising space in the Ashland Progress, they were only receiving advertising service or cuts for a newspaper, and not advertising space in the newspaper at and for the sum of $2.10 per week; and defendants aver that such advertising space would have cost them $5 per month additional to $2.10.

Riddle & Pruet, of Ashland, for appellant.

Cornelius & Cornelius, of Ashland, for appellees.

PELHAM, P.J.

The defendant's amended plea No. 2 was but a denial that the debt or demand, the foundation of the plaintiff's suit was due at the time the suit was brought, and was not open to any of the grounds of demurrer assigned to it. The amended counts of the complaint for the breach of a contract, upon which the case was tried, alleged the demand sued on as due and unpaid, and the defendant's plea of the general issue "that the allegations of the complaint are untrue" put that fact in issue.

The exercise of the trial court's discretion in permitting the defendant to file plea No. 5 is not reviewable here. Cahaba Southern Mining Co. v. Pratt, Adm'r, 146 Ala. 245, 40 So. 943.

The action is for a breach of contract to purchase certain advertising goods. The written contract under which the goods were to be furnished by the plaintiff and paid for by the defendant was signed by both parties, and is set out in the complaint. This contract may, as contended by the appellee who was the defendant below, and does, for that matter, to our mind, contain certain ambiguous or technical terms that would make parol evidence of their meaning admissible. However, it is not contended, nor is it set up in special plea No. 5, which purports to be a plea in bar of the action that the contract was procured through fraud or fraudulent misrepresentation. The defendant, dealing at arm's length with the plaintiff, voluntarily signed this contract containing these technical terms, and affixing a signature to a contract under such circumstances creates a conclusive presumption (except as against fraud) that the signer read, understood, and assented to it. 7 Am. & Eng.Ency.Law, 112, and authorities cited in note 1; 9 Cyc. 260, and cases cited in footnotes 99, 1, and 2. It is, of course, different where a contract rests on independent proposals, promises, offers, or acceptances. Then it often becames a question of pertinent inquiry, and sometimes one of difficult solution, in this connection, to determine whether or not there has been a mutual assent, a meeting of the minds of the contracting parties--such a coming together upon the common ground of a mutual understanding of facts and subject-matter as will constitute the assent essential to a binding contract between the parties.

Plea No. 5 neither sets up fraud,...