18 Colo. App. 409 | Colo. Ct. App. | 1903
The Manhattan Novelty Company was the publisher of an engraving beneath which was printed, “The War Congress of the.United States of America.” The engraving contained the portraits of three hundred and seventy individuals, and designated them as “Members of House of Representatives, Fifty-Fifth Congress.” Connected with this designation were the words, “They Remembered the Maine,” and a list of names, purporting to be the names of those members, arranged-with reference to the states and districts represented by them. On the 24th day of October, 1898, S. Rosénfield, as
‘ ‘ The Colorado Dry Goods Company, “Denver, Colo., Oct. 24, 1898.
“Manhattan Novelty Company,
‘ ‘ 335 and 336 Manhattan Building, “Chicago, 111.
“Gentlemen: We hereby order from.you five thousand (5,000) copies of your War Congress Pictures at four and three-quarters (4f) cents per copy, for which we agree to pay the total sum of two hundred and thirty-seven dollars and fifty cents ($237.50) within fifteen (15) days from date of shipment, less two per cent. (2 per cent.) off. This order is in consideration of the express terms and agreement made by your representative, S. Bosenfield, that he or any salesman of your firm will not sell any of these War Congress Pictures, purchased by us, to any other merchant or dealer, or agent, in this City of Denver, Colorado, or within twenty-five (25) miles around, for one (1) year from date. You are also to furnish us any more copies we may desire to order, at the same price as above mentioned, with the privilege of ordering in lots of one thousand (1,000) at one time'; and also to print on every picture the following name: ‘ Compliments of The Colorado Dry Goods Company, Denver, ’ to be delivered by November 15, 1898.
“Order given by The Colorado Dry Goods Co., per L. Bansohoff, Manager.
“Order.taken by S. Bosenfield, Agent, for Manhattan Novelty Company, Chicago, 111.”
On the 4th day of November, 1898, the novelty
This suit was brought by W. P. Dunn & Co. to recover the agreed price. The defendant answered that it purchased the pictures to be distributed to its patrons free of charge along with their purchases, the free distribution to be offered as an inducement to the public to deal with it; that the order was given on the representation and warranty of the novelty company that the portraits in the engraving represented all the members of the war congress, that is, all the members of the house of representatives of the fifty-fifth congress of the United States, which was in session immediately previous to and pending the recent war between the United States and the Kingdom of Spain, and which passed the war resolutions of the 21st day of April, 1898; that the picture was not what it purported to be, and did not contain the portraits of the members of the war congress; and that, upon the discovery of such fact by some of the defendant’s customers, it withdrew the engravings from distribution and notified the novelty company and the plaintiff that it held the engravings subject to their order. The replication put in issue the allegations of the answer concerning representation and warranty.
The ease was heard upon an agreed statement of facts, and the affidavits of Mr. Rosenfield, the novelty company’s agent, and Mr. Ransohoff, the manager of the defendant; the affidavits being received in lieu of the testimony of those persons. The only portion of the statement of which notice is necessary here was that the picture contained the por
For the plaintiff it is said that as the evidence was contradictory, the finding upon it below concludes this court. Such is the rule where the witnesses are personally present and testify at. the trial; but there is no such rule where the evidence is in writing. — Stuart v. Asher, 15 Colo. App. 403.
In the written evidence of the contract between the defendant and the novelty company we find neither representation nor • warranty. It consists simply of an order for the pictures and the acceptance of the order. Whatever representation there was must have been verbal; and, having been alleged as matter of defense, the burden was on the defendant to prove it. But the evidence for and against the allegation was evenly balanced. One affidavit affirmed it and the other denied it; so that it was left as if there had been no proof, at all respecting it.
It is argued, however, that on its face the engraving purports to exhibit the portraits of all the members of the House at the time war was declared. The engraving is styled “The War Congress of the United States of America,” and it is said that if it includes persons who were not members when the war resolutions were adopted and omits others who were, it is not a representation of the war congress of the United States. But it is entirely consistent with the agreed statement that every man who was a member of the house of representatives at or im
Affirmed.