WXIX, Inc. v. Scott Heating & Air Conditioning Co.
| Decision Date | 27 February 1968 |
| Citation | 38 Wis.2d 278,156 N.W.2d 451 |
| Parties | , 12 Rad. Reg. 2d (P & F) 2159 WXIX, INC., a Wisconsin corporation, Plaintiff-Respondent, v. SCOTT HEATING & AIR CONDITIONING CO., Inc., Defendant-Appellant, Harlan Long, Defendant. |
| Court | Wisconsin Supreme Court |
Brady, Pachefsky & Sullivan, Milwaukee, for defendant-appellant.
Nancy A. Simos, Milwaukee, for plaintiff-respondent.
There is no doubt that the defendant breached the contract. The whole question involves determining station WXIX's damage. The particular issues raised on this appeal are:
1. Are damages upon the termination of a television advertising contract to be computed on a short-rate basis according to a television station's rate card where the contract condition referring to such card is hardly legible?
2. If not, how are such damages to be computed?
3. Was there evidence to support the trial court's finding that the plaintiff incurred production costs of $77 to be charged to defendant?
We recognize the need in the television program production industry for the use of the short-rate device to arrive at some liquidated figure for damages done to a producing station by reason of the wrongful and premature termination of an advertising contract. This is an established practice in the industry.
In the instant case, the plaintiff station seeks to compute damages on the basis of a rate card which confusingly seeks to provide a formula for determining the advertiser's liability on a short-rate basis calculated to cover that portion of the advertising contract prior to the termination date. The printed form contract between the parties contains a printed condition spelling out the procedure for terminating the contract and prescribing that the advertiser on termination 'will pay station at earned rate according to station's rate card on which this contract is based.' That condition is printed in such small type it is hardly legible. The particular provision on 'termination and renewal' was not called to the attention of Harland Long, one of the respondents who was representing the advertiser (Scott) at the time and signed the contract on Scott's behalf.
We have held similar small-print provisions ineffective in the case of a would-be disclaimer in an invoice 1 and as part of a parking-lot ticket. 2
This particular condition is one of the most important in determining the rights of the two parties. Yet, it does not attract attention. In fact 'De-emphasis seems the motif rather than emphasis.' 3 If the television station sought precision in the formula for short-rate computation of the programs already produced the least it cuuld have done was provide a contract with conditions printed in such a way that they could have been read without a great deal of difficulty.
The general rule is that when a case is tried to a trial court without a jury, its findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. 4 But this court is not so bound by a finding of the trial court which, as here, is based upon undisputed evidence when that finding is essentially a conclusion of law. 5
We therefore conclude that the finding that the disputed condition entitled 'Termination and Renewal' was part of the contract is predicated on the error of law.
Then, too, the rate card itself is vague and subject to several interpretations. It is 7 1/2 by 8 1/2 inches, with one-half of the card devoted to announcements (inapplicable here because defendant had contracted for advertisements during a specific program as contrasted to announcements). The other half of the card is devoted to programs, i.e., presumably the short rates to be applied on the termination of contracted programs. One section of the card is devoted to rates involved in the cancellation of Class 'AA' programs (run from 6 p.m. to 11 p.m. daily). The remaining section lists different short rates for programs one hour, half hour, quarter hour, ten minutes, or five minutes in length. To the left of the listed times of programs is an unlabeled column containing the figures '1x, 13x, 26x, 39x and 52x.' This part of the rate card has been subject to at least three interpretations during this litigation.
In suing, plaintiff's complaint construed the rate card as providing for total liability of the advertiser computed on the basis of 61 programs at $110 (two sponsors of a half-hour show or a quarter hour apiece) or a total of $6,710. Under this interpretation the defendant ended up paying twice the money he would have been obligated for if he had finished out the contract. The trial court correctly concluded that such a construction of the contract tract was 'unreasonable and absurd.'
The trial court found that the rate of a half-hour show to be shown at least 52 times (52x) was $170; that with three advertisers splitting the cost, the charge to each would be $56.66 per day; that defendant's program was broadcast 52 times, leading to a total liability of $2,946.32 (which, subject to deductions for advertising commissions and cash payments and an addition for production costs, left a balance of $2,255.40).
This interpretation would lead to the...
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...21 N.Y.2d 160, 234 N.E.2d 199 (1967); Cutler Corp. v. Latshaw, 374 Pa. 1, 97 A.2d 234 (1953); WXIX, Inc. v. Scott Heating and Air Conditioning Co., 38 Wis.2d 278, 156 N.W.2d 451 (1968); see also 3 Corbin, Contracts § 607 (1960); 10 Williston, Contracts § 1213A (3d ed. Jaeger Having in mind ......
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