Outcault Advertising Co. v. Caruthersville Plumbing & Auto Co.

• Decision Date: 03 May 1921
• Docket Number: No. 2841.,2841.
• Citation: 230 S.W. 340
• Court: Missouri Court of Appeals
• Parties: OUTCAULT ADVERTISING CO. v. CARUTHERSVILLE PLUMBING & AUTO CO.

230 S.W. 340

OUTCAULT ADVERTISING CO. v. CARUTHERSVILLE PLUMBING & AUTO CO.

No. 2841.

Springfield Court of Appeals. Missouri.

May 3, 1921.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Outcault Advertising Company against the Caruthersville Plumbing & Auto Company. From a judgment for plaintiff for an insufficient amount, it appeals. Reversed and remanded.

Corbett & Stiles, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

FARRINGTON, J.

The plaintiff filed suit in the justice court, alleging that it had sold, by virtue of a contract, certain advertising cuts to the defendant for the sum of $109.20, to be paid in 12 monthly payments; that the time during which the defendant would be permitted to use said cuts would be for a period of one year; that the plaintiff had fully complied with all the terms of its contract, and had performed it, and that the defendant refused to accept the advertising matter mentioned, failed to make the agreed payments thereon, and undertook to cancel the contract after the goods had been shipped by the plaintiff, which was full performance on its part. Plaintiff further alleged that by reason of such failure on defendant's part it was damaged in the sum of $109.20, the purchase price of said advertising service. No pleadings were filed by the defendant; the suit having been instituted in the justice court.

The contract In question consists of an order dated December 10, 1919, signed by the defendant, in which order plaintiff is directed to ship at defendant's expense certain advertising cuts for which defendant will pay in 12 monthly installments $109.20, containing a provision that a failure to make any payment due within 30 days renders the full account due. The order contains a provision that the contract cannot be canceled, and is not to be varied by any statements or oral conditions made by salemen, and containing a further provision that the purchaser, that is, the defendant, affirms the only representations made as to an inducement to sign this contract related to the merits of the service. This order was signed by the defendant, and also signed by the salesman, Mr. Ferguson, and was sent to plaintiff's home office, which was in Chicago.

The evidence of plaintiff goes to show that it was received on the 13th day of December, 1919, through the mail, addressed to it by its representative, Ferguson, and that on that day a letter was written, acknowledging receipt of the order and accepting the same. Plaintiff's testimony further shows that on the 13th day of December, 1919, it shipped to defendant, by express, cuts for the month of January, 1920, and that the balance of the 11 months, 47 cuts in all, were prepared and shipped by freight at 3 o'clock p. m., on December 17, 1919. The letter of acceptance, dated December 13, 1919, was introduced in evidence by the plaintiff, together with the bill of lading for the shipment made at 3 o'clock p. m. December 17, 1919. The evidence further shows that on December 16, 1919, defendant wrote the plaintiff canceling the order and advising plaintiff it was not what it (defendant) wanted.

The jury, under the instructions given by the court, rendered a verdict in plaintiff's favor for $9.10, and it is from this judgment that plaintiff appeals, alleging that there was error in the giving of instructions to the jury and error in the admission of testimony.

The defendant's testimony tends to show that it never received the first shipment claimed to have been sent by plaintiff on December 13, 1919, and also contends that there is evidence from which a jury could find that before plaintiff shipped the final installment on December 17th, as claimed by...