Ayer v. Devlin

Brooke, J. (after stating the facts). Appellant discusses some 50 assignments of error under 12 separate heads: “(1) Did the court properly construe the contract between the parties and their respective rights thereunder? “ (2) Was the charge of the court setting forth the claims of the plaintiffs regarding the contract and instructing the jury to find for the plaintiffs if they [88] found ‘the contract was as the plaintiff claims/ erroneous? “(3) Was the court in error in ignoring defendant’s claim of an equitable estoppel and the evidence bearing thereon? “(4) Did the court err in excluding questions regarding defendant’s. knowledge prior to January 6, 1906, of the inability or refusal of plaintiffs to furnish full position? “(5) Did the court err in excluding questions propounded to the witness Buchanan as to his knowledge and good faith in his attitude towards defendant? “(6) Did the court err in charging the jury that they might find there was no proof from which they might find an agreement relative to position in the Christian Herald, Youth’s Companion and Woman’s Home Companion? “ (7) Did the court err in his rulings regarding defendant’s liability for advertising after January 6, 1906? “(8) Did the court err in permitting the witness Buchanan to testify regarding plaintiffs forbearing in not charging defendant commissions on discontinued advertising, and in commenting on the testimony? “(9) Did the court err in admitting in evidence the letter of Mr. Buchanan to plaintiffs dated August 17, 1905, and in his comments thereon? “(10) Did the court err in refusing to admit the testimony of the witness Chapin regarding the contents of plaintiffs’ check sheets? “(11) Did the court err in his rulings upon the admissibility of testimony regarding advertising subsequent to that in controversy? “(12) Did the court err in permitting the witness H. Eugene Wheeler to testify for plaintiffs after his deposition had been read?” 1. We are of opinion that the court properly charged that the written contract was one of agency and that it should govern so far as its terms expressed the agreement between the parties. The written contract is silent as to the amount of money to be expended and the mediums of publicity to be used. It [89] is clear that (under the written contract) defendant had the right to specify as to the amount and character (position) of the advertising to be done. There is no doubt that defendant and plaintiffs’ agent, Buchanan, had a conference at which a plan of campaign was agreed upon. Each party seems to have remembered the agreement differently. It is contended that the court permitted the jury to construe the contract. A careful perusal of the entire charge upon this point is, we think, a sufficient refutation of this claim. The various claims of the parties were outlined by the court and the jury were instructed to determine, from the evidence, what the actual agreement as regards “position” was and further: “If Mr. Devlin ordered the various advertisements to be put in the various publications in full position and Ayer & Son did not place the advertisements in full position in the various publications or notify Mr. Devlin that they could not do so, then Mr. Devlin is not responsible for advertising not placed in full position until he received such notice that the advertisements were out of position.” It appears to us that the controlling issue in the case was whether in fact defendant had contracted that his advertisement should be placed in the selected newspapers in “full position” only. This issue was presented to the jury fairly and under very plain instructions. They determined the fact to be contrary to defendant’s contention. 2. The next point discussed refers to clause 2 of the contract. It is contended that the sentence “You are to secure the best terms you can make for our advertising” means simply that plaintiffs should secure the lowest rates possible considering the time, space, and nature of the same, and that it conferred no power upon plaintiffs to determine position. Inasmuch as the court predicated plaintiffs’ right to re [90] cover upon the fact (if so determined by the jury) that defendant had not contracted for “full position,” thus recognizing defendant’s right to control the matter of “position” under the contract, we cannot see how defendant’s rights were in any way prejudiced. Nor do we think it was improper for the court to direct the jury that plaintiffs could recover if the jury believed plaintiffs’ version of the contract as to “position.” 3. It is contended by defendant that the letters written by him to plaintiffs so clearly indicated his understanding that he was to have “full position” for his advertisement, that the failure of plaintiffs to at once correct his misunderstanding should now be held to estop plaintiffs from denying the contract as defendant claims to have understood it. The principles invoked are not in dispute. The question is whether they apply to the facts in this case. The communications between the parties are not limited to the correspondence.. There were at least two or three personal interviews between Buchanan and defendant in the course of which the matter was discussed. What was said at these interviews was detailed to the jury by both parties. From an examination of all the correspondence and the testimony as to the interviews and in view of the fact that defendant knew from the outset that his advertisement was not appearing exclusively in “full position” and yet failed to order its discontinuance, we are of opinion that the court properly refused to instruct the jury that plaintiffs could not recover for any “misplaced” advertising, prior to a reasonable time after January 6, 1906, at which time it is admitted defendant had full knowledge as to what could be secured in the matter of “position.” 4, 5, 6 require no discussion. 7. Inasmuch as defendant ordered no discontinuance of his advertisement until February 17, and March 26, 1906, we think the court properly charged [91] that in any event defendant would be liable for all advertising after January 6, 1906. But the matter is wholly unimportant under the determination of the jury as to what the agreement between the parties was. The remaining assignments of error relate to the admission or rejection of evidence. A careful examination of-the record convinces us that no reversible error was in this respect committed. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone Ostrander, Bird, Moore, and Steere, JJ., concurred.