Scofield v. Parlin & Orendorff Co.

• Decision Date: 01 May 1894
• Docket Number: 130.
• Citation: 61 F. 804
• Parties: SCOFIELD et al. v. PARLIN & ORENDORFF CO.
• Court: U.S. Court of Appeals — Seventh Circuit

61 F. 804

SCOFIELD et al. v. PARLIN & ORENDORFF CO.

No. 130.

United States Court of Appeals, Seventh Circuit.

May 1, 1894

The plaintiffs in error, Gerrit S. Scofield and Frank M Scofield, citizens of Connecticut, doing business under the firm name of G. S. & F. M. Scofield, brought this suit against the defendant in error, the Parlin & Orendorff Company, a corporation and citizen of Illinois. The first count of the declaration alleges the execution by the defendant and acceptance by the plaintiffs of the following written proposition:

'Established 1871. G. S. and F. M. Scofield, General Advertising Agents 30

East 14th Street, New York City. P.O. Box 4,401.

'New York City, Dec. 3rd. 1885.

'You are hereby authorized to procure for us the insertion of our advertisement in any number of country newspapers, not to exceed five hundred (500), said advertisement to occupy a space of four inches, single column, for a period of six months. Upon presentation to us of the first copy of each paper containing our advertisement we agree to issue our duebill in favor of the publisher, or order, and to accept said duebill, when accompanied by thirty-five dollars ($35.00), in cash, as full payment for one of our Clipper three-wheel plows, the regular list price of which is seventy dollars, f.o.c. at Canton, Ill. We further agree to pay you a cash commission of five dollars ($5.00) for each paper in which you procure the insertion of our advertisement, said commission to be due and payable upon presentation to us of the first copy of each paper containing our advertisement. We also authorize you to furnish all electrotypes necessary to carry out this contract, for which we agree to pay you twenty cents apiece.

'(Sgd.)

Parlin & Orendorff Co.'

It is further alleged that, in the performance of the contract so made, the plaintiffs procured for the defendant the insertion of its advertisement according to the terms and conditions of the contract in 327 country newspapers, and, immediately after the publication, in each instance presented to the defendant the first copy of the newspapers containing the advertisement; that they also furnished a corresponding number of electrotypes, of which the defendant had notice and that by means of the premises the defendant became liable to pay, and in consideration thereof undertook and promised to pay, to the plaintiffs the sum of $1,700.40. The declaration contains also the common counts for work and labor done, goods sold, and money had and received. The defendant pleaded the general issue and non est factum. There was a trial by jury, which, by direction of the court returned a verdict for the defendant. In order to prove the execution of the contract, the plaintiffs offered in evidence alleged correspondence between the parties, including a number of letters which purported to be written upon the defendant's letter-head paper, to be dated at its place of business, and to be signed by the defendant, and were shown to have been received in due course of mail by the plaintiffs, or by their attorney, to whom they were addressed. To the first letter offered, dated May 31, 1886, and which contained the expression, 'since we contracted with Scofield Bros.,' and other expressions indicating the existence of a contract between the parties, it was objected that 'the letter shows upon its face that it was written in pursuance of an arrangement by which they endeavored to compromise these matters, and there is no proof of its execution, or who executed it, or the authority of anybody to write it. ' The court sustained the objection, putting its ruling on the ground 'that it is not admissible under the special count, nor under the common count, being in the nature of an offer of compromise, and that compromise is not declared on, and it is not a corporate act. ' Other letters were excluded upon the same grounds, and when the letter of December 5, 1885, was offered, and a similar objection made, the court said: 'The declaration...