St. Louis Gunning Advertising Company v. Wanamaker & Brown

• Decision Date: 28 November 1905
• Parties: ST. LOUIS GUNNING ADVERTISING COMPANY, Respondent, v. WANAMAKER & BROWN, Appellant
• Court: Missouri Court of Appeals

90 S.W. 737

115 Mo.App. 270

ST. LOUIS GUNNING ADVERTISING COMPANY, Respondent, v. WANAMAKER & BROWN, Appellant

Court of Appeals of Missouri, St. Louis

November 28, 1905

Appeal from St. Louis City Circuit Court.--Hon. Matthew G. Reynolds Judge.

REVERSED AND REMANDED.

STATEMENT.--This is an action to recover rentals alleged to be due for six months advertising on billboards at different stations in the city of St. Louis. Both plaintiff and defendant are incorporated companies, the former engaged in business in the city of St. Louis and the latter in Philadelphia. The advertisements were ordered by a written contract signed "Wanamaker & Brown, A. Lurie, selling agent." The defense is that Lurie had no authority to bind the defendant. Plaintiff relies on both an original authority to Lurie, and in default of such authority, ratification by the defendant. The advertisements were painted and displayed at the different stations in accordance with the contract and the aggregate rentals of $ 50 a month, for six months, were earned. Lurie formerly represented the defendant, a merchant tailor, in Kansas City. He opened a store of the same sort at Tenth and Olive streets in St. Louis in the early part of 1903, under an arrangement by which he was to bear the rent and other expenses. The defendant furnished Lurie with some six hundred dollars worth of goods for display purposes and samples, he giving a bond to indemnify defendant against loss from having furnished the goods. Lurie took orders for men's clothing and the suits were manufactured in Philadelphia and shipped from there to St. Louis for delivery to customers. He was charged for clothing shipped to him whether accepted or rejected by the customer, and his profit was the difference between the price he paid and what he got. He was carried on the books of the company as an agent, and the stationery used by him ran in the name of Wanamaker & Brown. A sign hung above the store containing the name Wanamaker & Brown; but there is a dispute as to whether the words "A. Lurie, selling agent" were on it. Defendant knew the sign, whichever way it read, was there, as it had a photograph of the store showing the sign. Lurie was entirely in charge of the St. Louis business and gave the order to the plaintiff for the advertisements which constitute the subject-matter of this action. The order was given July 16, 1903, and on November 20, 1903, before the expiration of the term for which the signs were ordered and when three months' rent was due, plaintiff wrote Wanamaker & Brown in Philadelphia, stating that Lurie, as defendant's representative, had ordered the bulletin-board advertisements for six months, what rent was due and that he had not made payment, but, in excuse, said he had received no check from the home office. In the letter plaintiff requested the defendant to take the matter up and have at least a partial payment made. The defendant wrote to Lurie on the subject, protesting against the expense, but did not write the plaintiff in answer to its letter, though an answer was requested. Some incidents appear from the correspondence between the defendant and Lurie which throw light on their relations. The exact date when Lurie opened business in St. Louis is not stated. It must have been in the early part of 1903; for there is a letter from him to the defendant under date of December 12, 1902, in which he proposed the arrangement between him and the defendant. Other letters show the business was going prior to May, 1903. Sometime between those dates, then, it was opened. On May 8 1903, defendant wrote Lurie complaining that the words "selling agent" did not appear on the sign over the door, as shown in the photograph of the store sent to defendant; also stating that under no circumstances must defendant's name be used for the purchase of goods, or for other purposes than "as an advertisement" which would enable Lurie to do a larger business than he could do in his own name. In the same letter defendant told him to establish his own credit and do business under his own name. The letter complained of two suits that had been brought against Wanamaker & Brown on account of the St. Louis business, and said that such matters were annoying, and that Lurie had been previously told he had better adjust them instead of leaving them open to an action. It was also stated that the mercantile agencies had called for a rating of Wanamaker & Brown in St. Louis, and had been informed that it had no interest in the St. Louis store. On May 13th defendant wrote Lurie that a business concern in St. Louis had written concerning an order by Lurie for wadding and asking if there was a limit to Lurie's order. The letter stated that the concern had been notified that the St. Louis store was Lurie's exclusive property. Lurie was told to discontinue signing orders for goods with the name of Wanamaker & Brown, and to sign his own name instead. Lurie explained by letter that the two suits of which complaint was made in defendant's letter of May 8th, were instituted by customers who were dissatisfied with garments they had ordered and that the cases had been adjusted. Defendant, in a letter of May 13th, stated that this explanation was satisfactory. Lurie's explanation was given under date of May 11th, and adverting to the complaint defendant had made about his name not appearing on the sign with the words "selling agent," he said the words "A. Lurie, selling agent," appeared on the window signs. July 24th Lurie wrote that he expected an immense fall trade and was having twenty signs put up around St. Louis by the Gunning System, to be ready for it. On November 25th, defendant wrote Lurie the following letter:

"November 25, 1903.

"Mr. A. Lurie, St. Louis, Mo.

"Dear Sir: We have had so much trouble with the business in St. Louis that we have finally lost all patience and shall discontinue any connection forthwith. The last thing to come to our notice is the contract made for six months' billboard advertising and the concern has appealed to us for payment. We have been informed a number of times that all business was transacted as Wanamaker & Brown's. This, of course, we know to be so, for a number of times bills have been received from concerns who have charged the goods to Wanamaker & Brown. There is no evidence in the sign used by you that the business belongs to you; everything is Wanamaker & Brown, and we must decline to have our good name brought into disrepute in your dealings with the trade in general in St. Louis. We have placed the settlement of all matters with the attorneys who will hand you this letter. It would be useless at this time to ask us to change our decision. The agency at St. Louis has given us more worry and concern than all the balance of our business combined; we think we have borne with you patiently, but now patience ceases to be a virtue. We had hoped, of course, that we could continue to do business with you in the future, but realize now that it is impossible to continue, as we cannot see from the facts before us but what the same difficulties and complaints would arise in the future. If you come east in January, we should be glad to have you call and see us. "Yours truly,

"WANAMAKER & BROWN."

That letter was evoked by the one plaintiff wrote defendant November 20th, referred to above, in which defendant was told that Lurie had contracted for the billboard advertisements, that three months' rent was due, and asked to take the account up with Lurie and have him make a payment. It seems Lurie told the Gunning company that Wanamaker & Brown had complained because his (Lurie's) name was not on the bulletin-boards; for on December 5th, the Gunning company wrote defendant that Lurie had so stated and assured defendant that "A. Lurie, selling agent" appeared on all the boards rented from the plaintiff. As no answer was sent to plaintiff's letter requesting defendant to have Lurie pay something on the advertising account, plaintiff wrote again on January 28, 1904, calling attention to the matter, stating that the bulletinboard service had been inaugurated August 23d and would expire February 23d; that Lurie had put off payment, offering various excuses, and asking defendant to send a check for the amount due by return mail or plaintiff would take action. Defendant made no reply to this letter, but on February 6th, wrote Lurie that it had decided to quit business in St. Louis as none of his promises had been kept; and, further, that defendant had been presented with a bill for $ 300 for advertising, accompanied with the threat that if not paid, action would be taken.

The court refused to direct a verdict for defendant and, instead, gave the following instructions:

"1. The court instructs the jury that although you may believe from the evidence that at the time the contract read in evidence was executed by A. Lurie, said Lurie had no authority from the defendant to execute said contract for the defendant, yet if you believe and find from the evidence that defendant was informed by plaintiff of the existence of said contract, and that plaintiff looked to defendant for payment thereof about November 20, 1903, and that defendant did not disclaim liability under said contract, nor notify the plaintiff that said Lurie had no authority to execute the same from defendant, but permitted plaintiff to continue to furnish the advertising service under said contract, then such failure constituted a ratification of the act of said Lurie in executing said contract, and your verdict will be for plaintiff for the entire amount sued for.

"2. The court instructs the jury that if you believe from the evidence that the plaintiff furnished A. Lurie, for the defendant, the advertising service mentioned in the...