Outcault Advertising Co. v. Stock Growers' State Bank

• Decision Date: 12 June 1922
• Docket Number: No. 14397.,14397.
• Parties: OUTCAULT ADVERTISING CO. v. STOCK GROWERS' STATE BANK.
• Court: Missouri Court of Appeals

242 S.W. 116

OUTCAULT ADVERTISING CO. v. STOCK GROWERS' STATE BANK.

No. 14397.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by the Outcault Advertising Company against the Stock Growers' State Bank. Motion to set aside an involuntary nonsuit and for a new trial was overruled, and plaintiff appeals. Affirmed.

Clarence A. Capron, of Kansas City, for appellant.

Daniel C. Ketchum and M. Defoe Pypes, both of Kansas City, for respondent.

ARNOLD, J.

This suit is based upon a written contract, and the appeal is prosecuted from the action of the trial court in overruling plaintiff's motion to set aside an involuntary nonsuit. Both parties are corporations, organized and existing under the law.

The written contract, upon which the petition is based, was dated April 4, 1918, and is in the form of an order to plaintiff to furnish each year for a period of five years a certain "bank service" consisting of advertising material, passbooks, etc., for expanding the business of the bank, especially in the field of savings accounts. The order embracing the contract sued on is as follows:

                                       "April 4, 1918
                

"To Outcault Advertising Company, 508 South Dearborn Street, Chicago, Illinois: Ship us, at our expense, your Bank `Ad' service which covers a period of five years, beginning April, 1918, this service to consist of."

Here follows a list of items relative to which there is no controversy. The contractual part of the order reads as follows:

"We agree to pay you two hundred eight ($208.00) dollars per year for five years; payable net cash as follows:

"Ten ($10.00) dollars monthly during the term of this contract and eighty-eight ($88.00) dollars on January 1st of each year during the term of this contract.

"Failure to make any payments within thirty (30) days after due renders full amount due.

"The last three years of this contract may be terminated by us provided that we so notify in writing, the Outcault Advertising Company, Chicago, Illinois, on or before February 1, 1919.

"Time is the essence of this contract.

"We are to have the exclusive right to use the above bank service in one city only, and we agree not to use or permit the use of any part thereof after this contract expires. Cuts, type, and all `Ad' matter not destroyed are subject to recall by you.

"Exclusive right having been given, this contract cannot be canceled except on date and in manner herein provided. All terms and conditions are stated herein."

It appears from the evidence that the service for the first, second, and third years was shipped, but there were no shipments for the fourth and fifth years. It also appears of record that the service for the third, fourth, and fifth years was countermanded by letter after the first and second year's supplies were shipped and the larger part of the work for the third year had been completed by plaintiff.

The petition alleges the execution of the contract and the manner in which payments were to be made by defendant, and—

"That by the terms of said contract, the plaintiff agreed to furnish to the defendant certain service in said contract described; that plaintiff has carried out and performed said contract upon its part, but defendant has utterly failed to keep and perform said contract upon its part, so that the whole amount named in said contract is now long since past due and payable."

The petition then charges that defendant has paid no part of said sum so alleged to be due except the sum of $203. The prayer is for $847, the full amount of the contract when fully executed less the payment as above indicated, with 6 per cent. interest from April 4, 1919.

The answer admits the execution of the contract, denies that plaintiff has carried out and performed its part of the contract, denies that the whole amount named in said contract is now long since past due, and denies owing plaintiff the sum of $837 and interest, as claimed in the petition. And as further answer defendant avers that defendant terminated said contract, as provided therein, on November 29, 1918, in writing, admits its indebtedness to plaintiff in the sum of an unpaid balance of $5 on the first year's contract price, and $208 on the second year, and pleads tender of $213 to plaintiff.

In this state of the pleadings the cause went to trial to a jury. During the reading in evidence on behalf of plaintiff of a deposition of one Gilbert Hart, manager of plaintiff company, a question arose over the admissibility in evidence of certain exhibits consisting of passbooks made by plaintiff for defendant under the contract. Their admission was objected to by defendant's counsel as not being within the issues. Counsel for plaintiff urged their admissibility on the ground that plaintiff had the principal portion of the work done for the third year when defendant rescinded the contract. The court said, speaking to plaintiff's counsel:

"You have not performed the full five years of your contract. If you are claiming on a quantum meruit you cannot sue on a contract and recover on a quantum meruit; they have either got to recover on the contract in full performance of everything, or else sue on a quantum meruit and then recover whatever they show the services were reasonably worth."

The court held that plaintiff was not suing for breach of contract but for a performance thereof, to recover the contract price where the contract provided defendant had until 1923 to complete the payments. The court further said:

"You can sue for damages on it, but how can you sue for the full performance of your contract before the time had expired for you to complete it?...