Outcault Advertising Co. v. Mack

• Decision Date: 27 February 1924
• Docket Number: No. 3475.,3475.
• Citation: 259 S.W. 511
• Parties: OUTCAULT ADVERTISING CO. v. MACK
• Court: Missouri Court of Appeals

259 S.W. 511

OUTCAULT ADVERTISING CO. v. MACK

No. 3475.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Polk County; C. H. Shinker, Judge.

Action by the Outcault Advertising Company against W. W. Mack. Judgment for defendant, and plaintiff appeals. Affirmed.

Herman Pufahl, of Bolivar, for appellant.

W. W. Wood, of Humansville, for respondent.

COX, P. J.

Action upon a contract. Jury waived. Trial by court, and judgment for defendant. Plaintiff appealed. A demurrer to plaintiff's testimony was sustained, and the only question for our determination is whether a case was made by plaintiff. The action is based upon a contract in the form of an order signed by defendant, the material parts of which are as follows:

"To Outcault Advertising Company:

"Ship us at our expense as per samples shown by salesman:

                       52 Tige and Tige cuts
                       52 Ads for cuts (printer's copy)
                        1 Desk set of ads
                        1 Box of type
                

upon the following terms and condition: We agree to pay you $109.20 payable in twelve equal monthly payments with discount. * * * We to have the exclusive right to use the above supplies in our city only for a period of one year from May 1, 1921. All cuts, type, and ad material not destroyed are subject to recall by you. * * * Exclusive right having been given this contract cannot be canceled.

                       "[Firm name] W. W. Mack Hdw. Co
                                       "By W. W. Mack.
                   "Accepted: Outcault Adv. Co..
                                "William J. Shea, Salesman."
                

The petition pleaded the contract and alleged full performance by plaintiff and asked judgment for the contract price of $109.20. The answer admitted that defendant signed the order described in the petition, and then denied that defendant owed $109.20 and interest as claimed by plaintiff; then pleaded a countermand of the order.

Plaintiff filed a motion to strike out a portion of the answer which pleaded a countermand of the order. This motion was overruled, and exception saved.

Plaintiff offered in evidence the order or contract pleaded and the deposition of William J. Shea, the salesman who secured the order, and the deposition of Gilbert Hart, of Chicago, Ill., the vice president and general manager of plaintiff, and certain letters attached to the deposition of Mr. Hart which had passed between plaintiff and defendant after the order was signed. From these depositions and letters we learn that the order was signed April 9, 1921, and sent in to plaintiff by mail, and received by it at Chicago on April 12, 1921. On the same day plaintiff wrote defendant accepting the order and stating that shipment would follow. On the same day, April 12, 1921, plaintiff received from defendant a letter in which he countermanded the order, but whether this countermand was received before or after plaintiff had mailed its letter to defendant in which it stated that the order was accepted does not appear. On April 16, 1921, four days later, plaintiff made its first shipment under the contract. The remainder was shipped on April 21, 1921. Defendant refused to receive either of these shipments, and paid nothing to plaintiff. Here plaintiff rested its case, and defendant filed a demurrer to its testimony, which the court sustained, and rendered judgment for defendant. The propriety of the court's action in sustaining a demurrer to plaintiff's evidence is the only question before us.

When a jury is waived in a law action and the court becomes the trier of the facts, as was done in this case, and a demurrer to the evidence is fled by defendant at the close of plaintiff's case, the same procedure obtains as when the case is being tried before a jury. A declaration of law that under the pleadings and evidence the plaintiff cannot recover is a declaration of law, and not a finding of facts. If the evidence would warrant a submission of the case to a jury, the declaration of law in the nature of a demurrer to plaintiff's testimony should be refused when the trial is by the court the same as if the trial were by a jury. Butler County v. Boatmen's Bank, 143 Mo. 13, 44 S. W. 1047; Vincent v. Means, 184 Mo. 327, 341-343, 82 S. W. 96; Goodyear Tire & Rubber Co. v. Ward, 197 Mo. App. 286, 195 S. W. 75.

Keeping the above rule in view, we must give to the testimony offered by plaintiff a construction most favorable to it, just as would be done if the trial had been before a jury. Plaintiff's evidence tends to establish the following facts: The plaintiff is engaged in the business of furnishing advertising matter to merchants. In doing this it furnishes for the exclusive use of a merchant in a town certain copyrighted cuts, and with them certain matter to be printed in connection with the cuts in advertising his business, and type to be used in printing, and certain sets of desk advertisements. Mr. Shea, the sales agent of plaintiff, called upon defendant at his store in Humansville, in Polk county, Mo., and after some...