Outcault Advertising Co. v. Wilson

ALLEN, J. — This is an action to recover the sum of $109.20 claimed to be due plaintiff corporation under an alleged contract between the parties. The trial, before the court and a jury, resulted in a verdict and judgment for defendant, and plaintiff appeals. Plaintiff is located in the city of Chicago, and engaged in the advertising business, and defendant is a merchant doing business in New Florence, Missouri. On January 16, 1912, the defendant, at the solicitation of one Elliott, a travelling salesman for plaintiff, signed the following paper, which was forwarded to plaintiff’s.Chicago office, viz.: “To Outcault Advertising Co. Order No. 876 508 S. Dearborn St., Chicago, Ill. Date Jan. 16th, 1912. Ship us, at our expense, as per samples shown, your Yellow Kid ‘Ad’ Service, to cover a period of-One Year, beginning Jan. 21, 1912. This service to consist of: . . . Yellow Kid Souvenir Calendar Post Cards for each month. . . . front type. 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 Yellow Kid ‘Ad.’ Service in our city only, and to hold type and cuts subject to your order when this contract expires. Failure to pay any installment when due renders full' amount of this Contract due. [496] This contract cannot be cancelled. Ship all at one time if possible. (Signed) Chas. M. Wilson. Elliott, Salesman.’/ On the following day, to-wit, January 17, 1912, defendant wrote plaintiff, saying that he had been advised that plaintiff’s salesman had offered “similar ads” to others at a lower price, and directing defendant not to ship the goods until he had an opportunity to investigate the matter, adding: “Nobody knows better than you whether your salesman is making different prices and if you are don’t send me any at all.” Defendant heard nothing from plaintiff either as to the acceptance of the order or in reply to the aforesaid letter. Plaintiff later shipped the articles in question, which, it seems, arrived at the office of an express company in New Florence on January 27, 1912, Defendant refused to receive them, and notified plaintiff to this effect, stating that the goods had not been shipped within the time specified, and that he had made other arrangements for -his advertising. And defendant testified that he later reshipped the goods to plaintiff, prepaying the charges therefor. The cause was submitted to the jury under certain instructions given by the court of its own motion, aftér all instructions requested by both plaintiff and defendant had been refused. It was submitted upon the theory that the writing signed by defendant constituted a valid and subsisting contract between the parties; that time was not of the essence of the contract, but that plaintiff 'was entitled to recover the total of all installments, to-wit, $109.20', if the jury found from the evidence that the advertising matter was shipped to the defendant by plaintiff within a reasonable time. There are no, distinct assignments of error before us; and though we have fully considered the ques [497] tions raised by appellant in its brief, it is unnecessary to refer to them in detail. We think it clear that the paper signed by defendant was in fact nothing but an order, and did not in itself constitute a valid and enforceable contract. It purports upon its face to be merely an order; and no acceptance thereof on the part of plaintiff appears prior to the shipping of the goods in question. It is true that the name “Elliott” (the name of the salesman) appears upon the paper, but there is nothing to indicate that this was intended as an acceptance of the order by plaintiff, binding it to fill the same in the manner and within the time specified. The evidence merely shows that the defendant signed the order and that it was mailed to plaintiff. Upon its face it does not bind plaintiff to do anything, and is lacking in mutuality. Under the circumstances, it seems clear that there was no binding contract originally entered into. [See Price v. Atkinson, 117 Mo. App. 52, 94 S. W. 816; Iron & Rail Co. v. Railroad, 148 Mo. App. 173, 127 S. W. 623; Sarran v. Richards, 151 Mo. App. 656, 132 S. W. 285,] It is true that where such an order is not countermanded and the other party acts thereupon and fully performs, such performance becomes a valid consideration relating back to the date of the order, and the latter ripens into an enforceable contract. [See Price v. Atkinson, supra.] In the case before us, however, defendant countermanded the order on the day following its execution; and it appears by plaintiff’s own evidence that plaintiff received defendant’s letter to this effect before entering upon the performance of the contract on its part. While this letter left the matter open for further negotiations between the parties, it, in effect, notified plaintiff not to ship the goods until advised that defendant was satisfied as to the price, and constituted a present revocation of the or [498] der previously mailed. And under the circumstances plaintiff was bound to recognize defendant’s right to revoke the order. [See Price v. Atkinson supra.] Defendant was therefore’ under no legal duty to accept the goods and pay the so-called contract price. And it cannot matter that he placed his refusal so to. do upon the ground that plaintiff had first breached the contract, if any existed, by failing to make delivery within the time specified in the order. It is also quite clear that plaintiff cannot recover in this action for the contract price, even upon the theory that the writing constituted a valid contract between the parties. Assuming the existence of such contract, it was wholly executory when defendant repudiated it. Thereafter, plaintiff could not perform and recover on the contract. One party to a contract has no right to proceed to execute it after he has been notified that the other party thereto has repudiated the contract. [See Printing & Manufacturing Co. v. Cutlery Co., 143 Mo. App. l. c. 522, and cases cited, 127 S. W. 666.] His remedy is an action for damages for the breach, and his duty is to minimize the damages, and not to increase them by proceeding to perform the contract. [See Frederick v. Willoughby, 136 Mo. App. 244, 116 S. W. 1109; Printing & Manufacturing Co. v. Cutlery Co., supra.] It is unnecessary to notice other questions raised. Under the evidence plaintiff was not entitled to recover upon any theory, and the judgment in favor of defendant should be affirmed. It is so ordered. Reynolds, P. J., and Nortoni, J., concur.