185 Iowa 694 | Iowa | 1919
The contract sued on was in the form of an order addressed to the plaintiff, and purported to be signed by the defendants, or one of them. . Such order was as follows : . .
“The Brenard Manufacturing Company (¡Not Incorporated),
“Iowa City, Iowa.
“P. O., Webster City, la., Aug. 24, 1915.
“Brenard Mfg. Co.,
“Gentlemen: — On your approval of this order, deliver to me at your earliest convenience, F. O. B. factory or distributing point, 2 Claxton pianos, watches, silverware and advertising matter described in this and reverse side, in payment for which I herewith hand you my six notes, pay
“The Brenard Mfg. Co. agrees to send their organizer to us on or. before October 10th, for constructive campaign work and for the completion of district organization. Organizer to remain for such a period as Brenard Mfg. Co. may deem necessary, during which time I am to furnish free the necessary conveyance ,to properly conduct t¡he work.
“You further agree to conduct all the correspondence with district secretaries, etc., in conducting and managing the entire trade extension campaign.
“I agree to furnish you within ten days names and addresses of teachers and directors of all schools in. a ten-mile area about our store, with whom you are to take up correspondence immediately.
“I agree to take the shipments promptly, carry out the trade extension campaign plan, promptly meet all obligations entered into under this agreement, keep the pianos well displayed in my store, issue premium deposit checks to the amount of all purchases, and every sixty days of this contract to report to you my gross sales, and promptly furnish you all information you request to enable you to push the trade extension campaign.
“I hereby certify that my last twelve months sales were not' less than $50,000.00, and upon this figure my next twelve months sales to be $60,000.00, and that if 15/16 per cent of my gross sales do not amount to $640 for the next twelve months, you will pay me the deficiency in cash, and immediately upon approval of this order, send your bond for $640.00 to cover this agreement with me.
“In consideration of the special methods set forth in your copyrighted plan and the special terms and agreements herein, this order cannot be countermanded.
“Consists of the following:
“2 Claxton pianos, mahogany finish, represented and described on reverse side.
“1 book, .‘The Brenard Mfg. Co.’s Trade Booster Methods.’
“25 posters, 28x36,
“500 $5.00 trading books.
“1 set of ‘display card’ signs.
“1 electroplate of player piano.
“1 instructions for newspaper advertising, which, if done, is to be without expense to Brenard Mfg. Co. -
“36 premium deposit checks in six colors, in denomina- - tion of 5 cents to $50.00.
“1 O-Size ladies’ 20-year gold-filled watch, with 15 jewel Elgin or Waltham movement.
“5 O-Size ladies’ or gents’ 10-year gold filled watches, with 7 jewel Swiss lever movement.
“1 toilet set (comb, brush, and mirror).
“Queen Esther Silverware (Manufactured by Wm. Rogers).
“We warrant for five years; any article will be replaced during that time.
“1 dozen tea spoons.
“1 dozen dessert spoons.
“1 dozen table spoons.
“1 dozen knives, solid handles.
“1 dozen dessert forks.
“1 dozen soup spoons.
“1 child’s set.
“1 cream or gravy ladle.
“1 berry spoon.
“1 dozen orange spoons.
“y2 dozen butter knives.
“iy2 dozen cold meat forks.
“1 dozen coffee spoons.
“1 dozen butter spreaders.
“1 dozen oyster forks.
“y2 dozen pickle forks.
“1 dozen fruit knives.
“Six due bills for $375.00, $365.00, $355.00, $345.00. $335.00, and $325.00, respectively, each good for one Olaxton player piano when accompanied with the difference in cash, as designated by the due bills.
“Or when regular Olaxton piano, instead of player piano is desired, six due bills for $300.00, $295.00, $290.00, $285.00, $280.00, and $275.00, respectively, each good for one Olaxton piano when accompanied with the difference in cash, as designated by the due bills. Price $600.00.
“[Signed] J. D. Sketchley, Store Purchaser,
“By T. B. Kearns, Mgr.”
Attached to the said order and as a part thereof were, six purported promissory notes for a sum total of $640. In his argument the appellant treats his suit as an action on the promissory notes. It is not such, except in the sense that the notes are a part of the contract above set forth. The plaintiff averred in his petition “that the name of I). Sketchley Store was a trade name or term, under which J. D. Sketchley and T. B.Kearns were at the time doing business, J. D. Sketchley as proprietor and T. B. Kearns as manager.” We find it difficult to 'get an intelligent conception of the contract above set forth. We quote the following explanation from the brief of the appellant:
“The Brenard Manufacturing Co., of Iowa City, is a concern that is engaged in what they term a trade extension business, whereby they sell to a merchant certain goods, consisting of pianos, jewelry, etc., for certain sum, to he given awwy by the merchant to the person, school, or so
From the record as a whole, we gather that the enterprise consisted of some sort of contest, in the nature of a lottery, whereby the plaintiff was to give away to third parties all the articles enumerated in the contract, as a method of so-called advertising for defendants. The contention for the plaintiff is that, under the undisputed evidence, it was entitled to a directed verdict against both defendants. Disregarding, for the moment, the objections of the appellees that appellant’s argument is not founded upon proper exceptions, we look to the merits of the controversy.
I. Was the plaintiff entitled to a directed verdict against IGearns?
To go further into the record, the contract sued on discloses that the plaintiff bound itself to results in the way of increase of business, as a result of the advertising scheme.
We reach the clear conclusion that Sketchley, also, was entitled to a directed verdict.
The triál court was more generous to the plaintiff. It submitted certain issues to the jury whereby a verdict might have been rendered against one defendant or the other, but not against both. The plaintiff complains of these instructions. It is enough to say that they were more favorable to the plaintiff than it was entitled to, as we have already indicated. . The plaintiff’s case was properly dismissed. The judgment below is, accordingly, — Affirmed.