Makeman Tablet Co. v. Chapman

NOKTONI, J. (after stating the facts). — 1. The question of the alleged failure of consideration in so far as the tablets themselves are concerned was properly submitted under appropriate instructions and found for plaintiff, and after giving proper preliminary instructions, the court instructed the jury on the part of plaintiff with respect to the advertising features of the contract, as follows: “5. Although the jury may believe from the evidence that the advertising matter sent by plaintiff to defendant fell short of the number and character called for in the contract of purchase, yet under said contract it was the duty of the defendant to advise the plaintiff whenever additional advertising matter might be required by him, and the court instructs you that defendant did not so advise plaintiff of such requirement, if any, and defendant cannot be heard to complain of plaintiff’s failure, if any, to do so, and defendant is not entitled to recover on that ground.” The principal argument advanced here for reversal is that by this instruction the court placed an erroneous construction upon the written contract inasmuch as the jury were told thereby that plaintiff was not to furnish advertising matter until the defendant requested it. It is argued by appellant that under the contract, it was the duty of the plaintiff to voluntarily furnish fifteen hundred booklets four times a year, also an eighteen-by-eight full glass window display advertisement once a month, etc. To settle this controversy with accuracy, let us examine the provisions of the contract. Now, first, with respect to the booklets. The contract does not require the plaintiff to furnish fifteen hun [435] dred or any other number thereof, unless it'be requested to do so by the defendant. By reference to subdivision c of paragraph 2, it will be seen that the company agreed “to furnish fifteen hundred booklets to the retail dealer four times a year upon request.” It appearing that the defendant made no request therefor, which was a precedent condition on his part, no default could be predicated upon the company’s failure to furnish the same. The fact that it had furnished one thousand or one thousand one hundred of the booklets without such request, was a mere gratuity on its part as it was under no obligation to do so until requested. It was not of the consideration until defendant had performed by requesting the same. Now, as to the eighteen-by-eight full glass display. By reference to subdivision d of the same paragraph, the covenant of the defendant will be found in the following words: “d. To send display as often during the year as the retail dealer may reasonably request. Special designs to be arranged each time, one a month, eighteen-by-eight, full glass.” We do not understand from this that the company agreed to send an eighteen-by-eight glass display unless the defendant' indicated that he desired it and could or would use it. Paragraph 3 of the contract declares the object of the agency to be for the mutual benefit of the parties in thoroughly establishing the sale of the tablets. Now, in construing this contract, with this object in view, we must bear'in mind that the company, far removed from the site of the contemplated sales to be had in the future, could illy judge of the amount and character of advertising adapted to that locality. That matter was more peculiarly within the purview of the defendant, depended largely upon his judgment, and therefore it was incumbent upon him, occupying the situs of the business, to be established, to display and distribute the advertising matter, and incumbent upon the plaintiff to furnish such of the char [436] acter and not exceeding the quantity mentioned, as in the judgment of the defendant he could employ to advantage. Under these circumstances, why should plaintiff voluntarily ship to him the eighteen-by-eight display when it had no request therefor from defendant, nor an assurance that he could or would give it a place in his store or show-window? It was a matter for the defendant to pass judgment upon as to whether he would use such display in his store or windows to the exclusion of other advertising matter which he no doubt had therein, and if he desired it, he had but to request it and the obligation of the company to furnish would immediately thereby arise. The window displays were to be furnished as often through the year as defendant might reasonably request, and “special designs to be arranged each time, one a month, eighteen-by-eight, full glass.” The words last above quoted must be read and construed in connection with those next preceding, and so read, they clearly indicate that each time defendant requested a supply of the window displays, an eighteen-by-eight full glass special design would be arranged and forwarded, not to exceed once a month. By the next following clause in the contract, the company agrees to “furnish the retail dealer, free of expense, all samples for distribution purposes upon request.” And so it is seen that in every instance the company agrees to furnish the advertising matter, whether it be booklets, displays or samples, upon request. The court is therefore of the opinion that the learned trial judge properly construed the contract when he instructed the jury that it was the duty of the defendant to advise plaintiff whenever additional advertising matter might be required by him. There was no failure of consideration here until defendant had performed. 2. At the instance of plaintiff, the court instructed as follows: “9. The court instructs the jury that even though [437] you do believe from the evidence that the advertising matter sent defendant was worthless, still that fact does not justify you in finding against the plaintiff on the acceptance sued upon.” , It is insisted that this instruction was erroneous. It is true that ordinarily, where an article is sold or furnished under a contract of this nature, for a specific purpose, communicated between the parties and understood at the time, and the purchaser has not had the opportunity to inspect the article purchased or contracted for, there is an implied warranty on the part of the vendor that it will be reasonably fit for the purpose intended. [Lee v. Sickles Saddlery Co., 38 Mo. App. 201; 15 Amer. and Eng. Ency. Law (2 Ed.), 1231; Benjamin on Sales (6 Ed.), sec. 661.] Appellant invokes this rule of law and argues that the court erred in instructing the jury that even though the advertising matter furnished defendant was worthless, that fact would not justify the finding in his favor on the acceptance. The principle invoked can have no application here, for the reason that the facts do not bring the case within its influence, inasmuch as there was no obligation upon plaintiff to furnish any of the advertising matter until requested to do so by the defendant, and no request was ever made. This is not a case where defendant had either purchased or contracted for advertising matter unconditionally, in which case there would have been consideration and an absolute obligation on the part of the plaintiff to furnish and an implied warranty that the advertising matter so furnished was reasonably fit for the purpose as above indicated, but it is a case where the defendant has contracted for the matter upon the condition that he request it, the obligation was imposed upon plaintiff to furnish the same only upon the condition that defendant made the request and until the defendant had performed the precedent condition on Ms part, by requesting, there was an absence of the entire consideration for plaintiff’s [438] promise and therefore no obligation rested upon plaintiff to furnish the advertising matter, either sufficient or insufficient. Now, it is clear that if defendant had requested no advertising matter whatever, and he did not, and the plaintiff, awaiting the request, had furnished none, in a suit on the acceptance, defendant conld not successfully plead failure of consideration, predicated upon the failure of the plaintiff to furnish this advertising matter for the reason that he had failed to perform a portion of the consideration on his part which was precedent and therefore no obligation was imposed upon the plaintiff to act until he had performed by requesting it to do so. This being true, defendant is precluded as well in the absence of a request by him for such matter, from successfully pleading failure of consideration predicated upon the insufficiency of the advertising matter furnished when none had been requested. For these reasons we are of opinion that the defendant, having failed to request sufficient advertising matter, the fact that the defendant voluntarily furnished him insufficient advertising or that of little value, is wholly immaterial, and the instruction, under these circumstances, was not error. Without prolonging the opinion, what has been said sufficiently meets the other propositions advanced for a reversal. The judgment will be affirmed. It is so ordered. Bland, P. J., and Goode, J., concur.