Outcult Advertising Co. v. Barnes

• Decision Date: 07 January 1914
• Citation: 176 Mo. App. 307,162 S.W. 631
• Parties: OUTCULT ADVERTISING CO. v. BARNES.
• Court: Missouri Court of Appeals

162 S.W. 631

176 Mo. App. 307

OUTCULT ADVERTISING CO. v. BARNES.

Springfield Court of Appeals. Missouri.

January 7, 1914.

1. EVIDENCE (§ 441)—WRITTEN CONTRACTS— EFFECT.

A written contract merges all contemporaneous verbal agreements, and hence such contract cannot be changed by parol evidence.

2. CONTRACTS (§ 93)—WRITTEN CONTRACTS— DEFENSES.

In an action on a written contract, which expressly stated that plaintiff's agents were not authorized to change its terms, defendant cannot avoid his obligation on the contract because plaintiff's agent made a collateral agreement with plaintiff which was not incorporated in the contract, for a person laboring under no disability is bound when he signs a written contract to ascertain its terms, unless his signature be obtained by fraud.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Action by the Outcult Advertising Company against W. M. Barnes. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

J. S. Clarke, of Ava, for appellant.

STURGIS, J.

At the times herein mentioned, the defendant was a retail merchant in business at Ava, Mo. The plaintiff was in business at Chicago, Ill., and was engaged in selling to merchants a line of advertising matter to be used by merchants and others in advertising their business in local papers. This line of advertising was known as the "Buster Brown Ad Service," and consists of cuts and certain reading matter in connection therewith to be inserted once a week in the local papers. On February 12, 1912, an agent of plaintiff appeared at defendant's store and solicited him to make a contract for this advertising matter for one year. The defendant thereupon signed the following order and contract: "To Outcult Advertising Company, 508 Dearborn St., Chicago, Ill. Order No. 3600. Date, February 12th, 1912. Ship us at our expense, as per samples shown, your Buster Brown Ad Service to cover a period of one year, beginning March 1, 1912. This service to consist of 52 Buster Brown cuts, 1 font of type, 8 lbs. in font. 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 above Buster Brown Ad Service in our city only, and to hold type and cuts subject to your order when this contract expires. Failure to pay any installment when due renders the 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." A copy of this was left with defendant and the original forwarded to plaintiff at Chicago. On February 15, 1912, plaintiff wrote defendant a letter acknowledging receipt of the order, accepting the same, and stating that it would at once fill the order.

The plaintiff sued on this contract, and defendant's answer is a general denial, with the further statement that defendant "was induced to sign said order for said advertising matter by misrepresentations and fraud on the part of the agent of said plaintiff." The defendant admits that he signed this order and his only excuse for not knowing its full contents is that he was busy at the time and signed it, after having talked the matter over with the agent, without paying much attention to it. The defendant was allowed to testify, over plaintiff's objection, that the agent soliciting this contract verbally agreed to make arrangements with the Douglas County Herald, a local newspaper, to have this advertising matter inserted in that paper, and that the defendant was to pay only the amount of $2.10 per week, the amount specified in the contract, as payment for the advertising matter alone. On February 20, 1912, the defendant wrote plaintiff the following letter: "Gentlemen: I want my order, that your agent sent you, canceled, as I am selling my stock of goods and cannot use it. Hoping this will all be satisfactory, so do not send it to me." The plaintiff proved, however, that it had delivered to the railroad company for shipment to defendant the advertising matter called for by the order before receiving this letter. The plaintiff also answered this letter, stating that it had already filled the order and declining to countermand the order. Plaintiff also called defendant's attention to the fact that he had a copy of the order and that no provision was made for the same being countermanded. The plaintiff did, however, give the defendant the privilege of transferring the goods and order to his successor in business or any merchant that he might wish in Ava. There is no proof that defendant did sell out his business to any one, and the evidence indicates that he did not do so, at least for some time after this contract was made. It is not shown whether defendant used the advertising matter or not, but, in any event, he declined to pay anything on the contract. The defendant admits that he did not at any time notify the plaintiff that its soliciting agent had made an agreement to pay the local paper for running this advertising matter, or that he declined to pay plaintiff as agreed because of any agreement made by the agent not embodied in the written contract. When asked why he did not notify plaintiff as to the agent's misrepresentations about paying for inserting the advertising in the local paper, he said he knew it would not do any good, because, when he read over the agreement, he saw it provided that any outside agreement would not do any good. Defendant also admits that he never inquired of the local newspaper to find out whether the plaintiff had in fact made the arrangement to publish this advertising matter. He seems to have taken it for granted that they had not and would not comply with the outside agreement. There is nothing to show that plaintiff had any notice or...