Outcault Advertising Co. v. Schierbaum

• Decision Date: 04 March 1919
• Docket Number: No. 15295.,15295.
• Parties: OUTCAULT ADVERTISING CO. v. SCHIERBAUM et al.
• Court: Missouri Court of Appeals

209 S.W. 982

OUTCAULT ADVERTISING CO. v. SCHIERBAUM et al.

No. 15295.

St. Louis Court of Appeals. Missouri.

March 4, 1919.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by the Outcault Advertising Company against Fritz Schierbaum and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Sutton & Huston, of Troy, and B. H. Dyer, of St. Charles, for appellant.

W. R. Dalton, of Wentzville, and Chas. J. Daudt, of St. Charles, for respondents.

ALLEN, J.

This is an action to recover the agreed sale price of certain advertising matter, known as the "Yellow Kid Ad. Service," sold by plaintiff corporation to the defendants. The trial below, before the court and a jury, resulted in a verdict and judgment for the defendants, and plaintiff has appealed.

Plaintiff is an advertising company with headquarters in the city of Chicago, and the defendants, during the period here involved, were engaged in the hardware business in Wentzville, St. Charles county, Mo. On January 9, 1912, defendants, at the solicitation of a representative of plaintiff, signed an order addressed to plaintiff, directing it to ship to the defendants, at their expense, "as per samples shown," plaintiff's "Yellow Kid Ad. Service," to cover a period of one year, beginning January 12, 1912; the order providing that this service was to consist of "52 Yellow Kid cuts, 500 Yellow Kid souvenir calendar post cards for each month," with one font of type. The order contained an agreement on the part of defendants to pay for such services the sum of $3 per week for one year, defendants to have the exclusive right to use the "Yellow Kid Ad. Service" in Wentzville; and it was provided that defendants were to hold the "type and cuts" subject to plaintiff's order at the expiration of the contract. The order further provided that the failure of defendants to pay any installment when due would render the full amount of the contract price due and payable, and that the contract could not be canceled, and contained a direction to plaintiff to "ship all at one time if possible." Then appears a heading as follows: "Lines of Goods We Carry. Fill in `Yes' or `No.'" This is followed by a list of various lines of merchandise, opposite each of which defendants inserted "Yes" or "No," to indicate the goods handled by them.

By letter of January 10, 1912, plaintiff accepted this order, and thereafter promptly filled it by shipping to defendants 6,000 of these "Yellow Kid" cards, designed to be used in quantities of 500 for each month of the year, together with the type and cuts mentioned. Thereafter, beginning February 20, 1912, certain correspondence passed between the parties, to be further noticed later. Defendants, however, retained all of the cards, cuts, and type furnished by plaintiff under the contract, and used quite a number of the cards by mailing them to customers. Defendants' evidence shows that in March, 1912, a "good many of these cards" were cut to a smaller size by defendants, and that as late as the latter part of June, 1912, defendants caused certain additional printing matter to be placed on a considerable number of the cards. Defendants refused to pay for the articles thus furnished to them by plaintiff, and on February 8, 1913, plaintiff instituted this action.

The petition, which counts upon the contract, is in the usual form, and prays judgment for $156, with interest thereon.

The answer contains first a general denial, followed by an admission that defendants entered into a contract with plaintiff whereby they agreed to purchase from plaintiff a certain advertising service known as the "Yellow Kid Ad. Service." It is then averred that defendants were at the time dealers in certain goods, wares, and merchandise, setting out the "lines" handled by them, and that the advertising service agreed to be furnished to defendants "was a particular kind of advertising service and as applicable to defendants' business, for the advertising of which it was by plaintiff agreed to be furnished by it," and was represented by plaintiff to defendants to consist of 6,000 post cards with advertising matter thereon "pertaining and relating to and advertising the said business of the defendants and its various parts and departments, said post cards being and to be of such a size and kind that the same could be written upon on both or either sides and mailed in the United States mail at postage rates of not to exceed one cent each," together with certain cuts, etc. And it is alleged that at the time of the making of the contract defendants intended to use the post cards "for the purpose of written correspondence and writing thereon through the United States mail"; that plaintiff at the time knew of this, and for the purpose of inducing defendants to enter into the contract "falsely and fraudulently represented to defendants that the cards intended to be furnished under such agreement were and would be post cards containing advertising matter relating to the said business of defendants and its various parts and departments, and of such a size, kind, and character that the same could be used for written correspondence thereon and writing thereon on both or either sides thereof," and when so used would be carried in the mails for one cent postage; and that defendants, believing said representations to be true, were thereby deceived and induced to enter into the contract. And the answer further alleges that plaintiff failed and refused to furnish defendants post cards of the kind, character, and size aforesaid agreed to be furnished by it, and failed and refused to furnish defendants with cuts of the nature and kind agreed to be furnished; that of the cards shipped to defendants, in pretended compliance with the contract, a large number contained advertising matter relating to defendants' business, but were "not post card size," of the kind and character agreed to be furnished, and could not be used with writing upon both or either sides thereof and mailed for one cent postage; and that the cards so furnished by plaintiff were entirely useless to defendants and were of no value whatsoever. And it is alleged that a large part of the cards shipped to defendants by plaintiff, in pretended compliance with the contract, did not relate to defendants' business, and were wholly worthless to defendants.

The reply is a general denial of the new matter contained in the answer.

Plaintiff's case was made out by the introduction of the contract and the correspondence between the parties, together with the deposition of one Hackett, plaintiff's secretary and treasurer. Plaintiff's representative who took the order did not testify. In his deposition Hackett testified that the cards furnished by plaintiff to its representatives as samples, the only samples they carried, were "exactly the same" as the cards furnished defendants under the contract. The court sustained defendants' objection to this testimony. Plaintiff's evidence shows that, though upon the acceptance of the order by plaintiff the goods were at once shipped to defendants, the latter made no objection to them until February 20, 1912, when they wrote to plaintiff complaining that the cards were too large, i. e., "¼ inch larger each way," requiring "an additional stamp." In reply to this plaintiff, on February 27, 1912, Wrote defendants explaining that the cards required but one cent postage, provided no writing (nothing other than printed matter) appeared "on the left half of the address side." Thereafter a number of letters passed between the parties in regard to the matter of postage upon these cards, in the course of which plaintiff fully and correctly explained the postal regulations touching the matter, and stated that it was not contemplated that defendants would desire to place any written matter upon the cards. On April 17, 1912, defendants wrote plaintiff refusing to pay for the post cards, saying: "They are here awaiting your disposition." Later defendants used many of the cards, as stated above.

Over plaintiff's objection defendants were permitted to introduce the testimony of a postmaster at St. Charles, Mo., and of an expostmaster at that place, for the purpose of showing that the cards furnished by plaintiff were not "post cards" within the meaning of the postal regulations.

Defendant Ed Schierbaum testified that he told plaintiff's representative that he wanted cards that could be mailed for one cent postage with written matter upon them. He said: "I cannot recall what he [plaintiff's representative] said. * * * He said he would send these 52 cuts as I had asked for." He further testified, however, that the cards displayed by plaintiff's representative were like those which defendants received, adding: "I could not say whether...