272 N.W. 387 | Minn. | 1937
"Dear Sir:
"Please insert one-half page advertisement in the Importers Guide commencing with the September edition, at the rate of $160.00 per insertion for each edition (payable on date of issue) and continuing until ordered discontinued by either party on three full calendar months' notice in writing by registered mail.
"When no instructions are given, previous advertisement may be used, and if no copy is furnished you are to supply it. All conditions are expressed in this contract."
To the left of defendant's signature, inclosed in a parallelogram, this is printed in small box type:
"Importers Guide is published in English, French, Spanish and Portuguese, one language edition each month, three editions in each language each year. All final closing dates (see other side) falling within the notice period are for account of advertiser, and advertisements carried on such closing dates will be published at advertiser's expense. All our rates are fiat rates. Short rates are not applied in the event of cancellation. Sworn detailed statement of circulation is furnished with each language issue."
The reverse side of the instrument states what theImporters Guide is devoted to, the dates on which the journal is published each month, in what language, and final closing dates, together with advertising rates. On July 29, 1931, defendant sent written notice by air mail of discontinuance of the advertisement, of which plaintiff, under date of July 31, 731, acknowledged receipt. Notwithstanding the expiration of three full calendar months by October 31, plaintiff published the advertisements in the issues of November 1 and December 1, 1931. For all previous issues defendant has paid, but it refused to pay for those published after October 31, and this *477 action was brought. The trial court found for defendant. Plaintiff appeals from the judgment entered after his motion for a new trial was denied.
The appeal of plaintiff is based upon this sentence found within the parallelogram mentioned, viz.: "All final closing dates (see other side) falling within the notice period are for account of advertiser, and advertisements carried on such closing dates will be published at advertiser's expense." It is to be noted that this small print is set off from the contract proper by a well defined parallelogram. There is no reference in what is printed above defendant's signature either to the printing in the parallelogram or to the back or reverse side of the letter. Neither the one nor the other ought properly be considered as part of the contract of defendant. 13 C. J. p. 278, § 78. In Sturtevant Co. v. Fireproof Film Co.
"When an offer, proposal or contract is expressed in clear and explicit terms, matter printed in small type at the top or bottom of the office stationery of the writer, where it is not easily seen, which is not in the body of the instrument or referred to therein, is not necessarily to be considered as a part of such offer, proposal or contract."
And see also Sturm v. Boker,
But, even assuming that the small print within the parallelogram is a part of the contract, it must be held that the ambiguous meaning of the sentence quoted therefrom cannot control or modify the plain stipulation that three months' notice in writing cancels or terminates the contract. On the "other side," referred to in the small print, there is nothing at all purporting to modify the cancellation *478
provision on the contract. It merely defines "closing dates," by stating that the closing date of any issue or edition of the journal is the 20th day of the second month preceding the date of the issue. Moreover, we think the sentence itself by reference to the printing on the "other side" cannot be tortured into a meaning that there shall be an obligation on the part of the advertiser to pay for two editions published after the cancellation by written notice has taken effect, that is, for two editions published next after the expiration of the three full calendar months' notice of cancellation has been given and received. The contract was prepared and tendered by plaintiff, and ambiguities therein are not to be construed in his favor. Lucas v. Ganley Brothers, Inc.
The judgment is affirmed. *479