Minton v. F. G. Smith Piano Co.

36 App. D.C. 137 | D.C. Cir. | 1911

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The appellant characterizes the first count as an action for damages for deceit, and the second as an action on an implied warranty, claiming that he is authorized to join the two counts in one declaration by the provisions of the Code, sec. 1532 [31 Stat. at L. 1418, chap. 854], See also Shippen v. Bowen, 122 U. S. 575-582, 30 L. ed. 1172-1174, 7 Sup. Ct. Rep. 1283.

The advertised offer of a reward or premium for the performance of a specified act is a proposition submitted to all persons who may accept and comply with its conditions. Until accepted it may be withdrawn; but when accepted, it becomes a binding contract between the proposer and the acceptor who shall have performed the service or done the act required.

The formal action by the acceptor against the proposer who-fails to carry out his undertaking would seem to be assumpsit,, or possibly debt.

It may be conceded that the declaration in this case is inartificial and redundant. It contains unnecessary charges of fraud, but its character and sufficiency are not to be determined by these, but by the substantial facts alleged. The substantial facts to be alleged are a plain statement of the offer made,, acceptance and substantial compliance by the plaintiff with the terms and conditions of the offer, and the refusal of the defendant to perform. If these appear in either count their effect is not impaired by superfluous charges of fraud. It is substance, not form, that governs the construction.

Although plaintiff entitles the contract a warranty, yet as set out in the count with the allegations of performance by the plaintiff it became a contract, for the failure to perform which he sues. Treating the first count as sounding in tort, he had the right to join therewith the count sounding in contract. Code, sec. 1532. While this second count might have been more specific in its details, we are of the opinion that it was not subject to demurrer. The argument that he does not show that he was a winner in the proposed contest for prizes is founded upon the contention, sustained by the learned trial justice, that he is bound by the award of the judges of the contest, unless there was a fraudulent award by them which has not been alleged.

The acceptance by plaintiff and his agreement to abide by the decision of the judges binds him, in the absence of allegations of a fraudulent award, to accept their decision in the matters properly submitted to them under the terms of the offer, which became a contract by plaintiff’s compliance with its terms. The authority of the judges of the contest must be determined by the terms of the published offer and rules governing the contest. These must be given a reasonable interpretation, and in case of ambiguity in any particular the construction should favor the acceptor rather than the proposer, who prepared and submitted the offer.

There is, however, no ambiguity. The offer states: “All you have to do is to count the dots which appear in and around the outlined Webster player piano. Then send your answer, with your name and adress neatly and legibly written to the Contest Department, F. G. Smith Piano Co. before 6 jp. m. Tuesday, October 26th, 1909. In the “rules governing contest” the following appears: “Count the dots and send your answer in with the name and address plainly written. * * * The correct number of dots is known only to the manufacturers of the Webster Piano. This number has been forwarded in a sealed envelope to the four judges of the contest, who are representatives of the four newspapers of the city of Washington. We do not know the number, and the judges will not know it until they open the envelope on the day the contest is decided.” Then follows the form which those entering the contest are authorized to send in after filling the blank left for the number, and signing the same with the address of the signer.

It appears from this that the piano company was to ascertain if the name and address were plainly written. If not, it was under no obligation to transmit the answer to the judges. By such transmission they affirmed that these were plainly written. All that the judges were required to do was to compare the number of dots given in the answer, with the number contained in the sealed envelope submitted by. the manufacturers. The number was plainly enough written for them to make this comparison, and they reported that the answer contained the correct number of dots. Their duty, according to the terms of the advertisement, was fully performed when they did this. It seems that there was very little margin for “neatness and legibility” in the answer as returned on the blank form as authorized; but whether so or not, the determination of that was entirely beyond the power of the judges, and their finding on that ground was without weight or- effect. Their, duty was fully performed when they found and reported that the number given in the answer was .the correct one. Everything beyond that was superfluous. The actual finding that plaintiff had given the correct number in his answer entitled him either to the special first prize offered, or, in case of a tie with others, to a premium of equal value. It-was not necessary for him to allege fraud in the award of the judges in respect of a matter not submitted to their judgment by the terms of the offer as published and accepted.

It was error, therefore, to sustain the demurrers, and the judgment will be reversed, with costs. The cause will be remanded with directions to grant a new trial and for further proceedings not inconsistent with this opinion, pending which the plaintiff will be permitted to amend his declaration if so advised. Reversed.