Prospect News Printing Co. v. Swindle

Decision Date30 March 1929
Docket NumberNo. 4592.,4592.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Ripley County; Charles L. Ferguson, Judge.

Action by the Prospect News Printing Company against H. A. Swindle. Judgment for defendant was had in the justice of peace court and in the circuit court, and plaintiff appeals. Reversed and remanded.

George D. Sloan, of Doniphan, for appellant.


This cause of action was commenced in a justice of the peace court in Ripley county, where the plaintiff was undertaking to collect $18.25, the amount alleged to be due for subscription to the Prospect News, a weekly newspaper published and distributed at Doniphan, Mo., by the plaintiff company. Judgment was had for the defendant, and an appeal was taken to the circuit court where, through the aid of a jury, another verdict and judgment was had for the defendant, and proper steps were taken for appeal to this court.

The testimony of plaintiff was to the effect that on January 21, 1914, the defendant subscribed for the paper and paid 50 cents for 6 months' subscription, which paid the subscription up to July 21, 1914; that the paper was continuously sent through the mails each week to the defendant until in August, 1927; that for the first 2½ years the subscription price was $1 per year, and that after publication of notice of an intent to increase the rate of subscription, the subscription rate was increased to $1.50 per year in January, 1917; and that thereafter the paper was sent through the mails to the defendant for 10½ years, making the total amount due for the paper $18.25. No notice to stop the paper was ever received and none that the defendant had refused to take the paper from the post office. Statements demanding payment of defendant were sent through the mails and no remittances nor replies received, until just before the suit was filed in August, 1927, the defendant said that he would not pay the bill.

The defendant testified that he subscribed for the paper in the latter part of July, 1913, and told the editor that he wanted the Prospect News for six months, and was told that it would cost 50 cents. The editor asked him to take it for a year, but he told the editor if he wanted it any longer he would take it, and he paid him 50 cents for the paper for six months and walked out of the office, and that he did not order him to send it to him another minute after the six months was out, and no one else ordered it sent to him. He continued to receive the paper after the six months were out until he received the statement that he owed $18.25; that he took it out of the mail box and continued to read it, and never ordered the plaintiff to stop the paper.

There is practically no difference in the testimony of the plaintiff and that of the defendant,...

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5 cases
  • Propst v. Capital Mut. Ass'n
    • United States
    • Kansas Court of Appeals
    • 9 Enero 1939
    ...St. Ry. Co., 118 Mo.App. 611, 94 S.W. 996; Buchholz v. Metropolitan Life Ins. Co., 177 Mo.App. 683, 160 S.W. 573; Prospect News Prtg. Co. v. Swindle, 15 S.W.2d 922. (7) Statement of counsel during arguments to jury, of not appearing in evidence, and outside of the record, using language cal......
  • Woehler v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • 1 Abril 1938
    ...Mo. 289; Dowd v. Air Brake Co., 132 Mo. 582; Boggess v. Ry. Co., 118 Mo. 339; Oglesby v. Mo. Pac. Ry. Co., 150 Mo. 225; Prospect News Ptg. Co. v. Swindle, 15 S.W.2d 922. (3) The giving of Instruction 2, as requested by was error, for which a new trial should have been granted. Keeline v. Se......
  • Chism v. Cowan
    • United States
    • Missouri Supreme Court
    • 11 Septiembre 1967
    ...St. Ry. Co., 118 Mo.App. 611, 94 S.W. 996; Buchholz v. Metropolitan Life Ins. Co., 177 Mo.App. 683, 160 S.W. 573; Prospect News Printing Co. v. Swindle, Mo.App., 15 S.W.2d 922; 39 Am.Jur., New Trial, § 121, p. The nature, extent and permanencyof plaintiff's injuries, the attendant pain and ......
  • Portwood v. Federal Trade Commission
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 14 Noviembre 1969
    ...Inc. v. Federal Trade Commission, supra. 6 See Austin v. Burge, 156 Mo.App. 286, 137 S.W. 618 (1911); Prospect News Printing Co. v. Swindle, 15 S.W.2d 922 (Mo.App.1929); Farmers' Handy Wagon Co. v. Newcomb, 192 Mich. 634, 159 N.W. 152 (1916); Restatement, Contracts § 72(2); 1 Williston on C......
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