Outcault Advertising Co. v. Fain

*716 Alíen, J. The allegation of the representation made by the agent of the plaintiff is that he told the defendants that the plaintiff had arranged with the editor of the Cherokee Scout to print the advertising matter at the same price the defendants were then paying for advertisement in the paper, while the proof is that the agent told the defendant that their advertising would not cost any more than it was then costing. The variance between the allegation and the proof is clear, and its materiality is easily perceived when it is remembered-that neither the plaintiff nor its agent had anything to do with the contract for advertising. The plaintiff was to furnish the cuts and the defendants were to make their own contracts for advertising, and when so considered the representation testified to amounted to no more than an expression of opinion as to the cost of advertising, which the defendants could easily verify by seeing the editor, who lived in the same town and who was at the place of business of the defendant daily. It will be noticed there was no effort upon the part of the agent to prevent the defendants from making an investigation, and that instead of urging them to sign the contract when he first saw them, it was upon a second visit that the contract was entered into. But suppose the representation means more and is equivalent to a statement that the editor said that the cost of advertising would not be greater than the amount the defendants were then paying; is there any evidence that this statement was false? The editor of the paper is dead, and the defendants had to rely upon his declaration. This was incompetent, because hearsay evidence; but as it was not objected to, we do not put our decision upon that ground. The defendant Howell does not testify that he told the editor that the agent of the plaintiff made any statement to him, nor does he say that the editor told him that he had not told the agent that the cost of advertising would not be greater than the amount he was then paying, and considered in the most favorable light it amounts to no more than a bare suggestion that the statement which the defendants alleged was made as an inducement to the contract was false. It is entirely consistent to say that the editor of the Scout told the agent that the defendants, could get the advertising at the price he was then paying, and that when the defendants approached him to make the contract he had either changed his mind or for some other reason demanded a higher price. If he had made a contract with the agent as to the cost of advertising and the agent had so stated, the evidence might have a different bearing, but it -was not in the contemplation of any of the parties that the con *717 tract for advertising should be made between the plaintiff or its agent and the editor, and, on tbe contrary, all understood that this contract was to be between the defendants and the editor. We are therefore of opinion upon the record as it now stands that there was error in refusing to give the prayer for instruction requested by the plaintiff, and a new trial is therefore ordered. New trial.