176 Mo. App. 307 | Mo. Ct. App. | 1914
At the times herein mentioned the defendant was a retail merchant in business at Ava, Missouri. The plaintiff was in business at Chicago, Illinois, and was engaged in selling to merchants a line of advertising matter to be used by merchants and others in advertising their business in local papers.. This line of advertising was known as the “Buster Brown Ad. Service” and consists of cuts and certain reading matter in connection therewith to be inserted once a week in the local papers. On February 12, 1912, an agent of plaintiff appeared at defendant’s store and solicited him to make a contract for this advertising matter for one year. The defendant thereupon signed the following order and contract: “To Outcult Advertising Company, 508 Dearborn St., Chicago, 111., Order No. 3600. Date February 12,1912. Ship us at our expense, as per samples shown, your Buster Brown Ad. Service to cover a period of one year, beginning March 1,1912. This service to consist of 52 Buster Brown cuts, 1 font of type, 8 lbs. in font. We (or I) agree to pay you net cash monthly, at the rate of $2.10 per week, for one year, we (or I) to have exclusive right to.use the above Buster Brown Ad Service in our city only, and to hold type and cuts subject to your order when this contract
The plaintiff sued on this contract and defendant’s answer is a general denial with the further statement that defendant “was induced to sign said order for said advertising matter by misrepresentations and fraud on the part of the agent of said plaintiff.” The defendant admits that he signed this order and his only excuse for not knowing its full contents is that he was busy at the time and signed it, after having talked the matter over with the agent, -without paying much attention to it. The defendant was allowed to testify, over plaintiff’s objection, that the agent soliciting this contract verbally agreed to make arrangements with the Douglas County Herald, a local newspaper, to have this advertising matter inserted in that paper and that the defendant was to pay only the amount of $2.10 per week, the amount specified in the contract as payment for the advertising matter alone. On February 20, 1912, the defendant wrote plaintiff the following letter : ‘‘ G-entlemen: I want my order that your agent sent you canceled, as I am selling my stock of goods and cannot use it. Hoping this will all be satisfactory, so do not send it to me.” The plaintiff proved, however, that it had delivered to the railroad company for shipment to defendant the advertising matter called for by the order before receiving this letter. The plaintiff also answered this letter, stating that it had already filled the order and declining to countermand the order. Plaintiff also called defendant’s attention
Laying aside any question as to. defendant’s good faith in refusing to comply with his contract on the ground of plaintiff’s failure to carry out the alleged verbal agreement of the soliciting agent, we think this case must be reversed. Where a business man, possessed of ordinary ability and opportunity to know what he was signing, takes the word of an utter stran
There is no evidence in this record, and defendant does not claim, that he was laboring under any infirmity or that any artifice or fraud was practiced in order to obtain his signature to this agreement. His evidence is to the effect that he was relying on the promises made by the soliciting agent that the plaintiff would do something not embodied in the written agreement, Defendant cannot be excused for failure to read. the agreement when he had every opportunity to do so. He must, therefore, be held to its terms and one of those terms is that “all promises and agreements are stated herein; verbal agreements with salesmen not authorized.” It results that plaintiff has established its case and that defendant has utterly failed to show any legal defense. The case, will, therefore, be reversed and remanded with direction to enter judgment for plaintiff for $109.20, and the costs of this case.