{
  "id": 2880677,
  "name": "Buyers Index Publishing Company, Plaintiff in Error, v. Triner Scale & Manufacturing Company, Defendant in Error",
  "name_abbreviation": "Buyers Index Publishing Co. v. Triner Scale & Manufacturing Co.",
  "decision_date": "1915-06-17",
  "docket_number": "Gen. No. 20,384",
  "first_page": "427",
  "last_page": "432",
  "citations": [
    {
      "type": "official",
      "cite": "194 Ill. App. 427"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 478,
    "char_count": 10492,
    "ocr_confidence": 0.545,
    "sha256": "36edb4ccc0c74367204682bd37a136f473a4fcc5624ee33a72bf67ec1062c8a1",
    "simhash": "1:29fea7a54f0f4989",
    "word_count": 1733
  },
  "last_updated": "2023-07-14T16:49:21.752065+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Buyers Index Publishing Company, Plaintiff in Error, v. Triner Scale & Manufacturing Company, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Pam\ndelivered the opinion of the court.\n2. Evidence, \u00a7 352 \u2014when parol evidence admissible to explain contract. A contract for advertising held ambiguous so as to authorize the admission of parol testimony to interpret its language.\n3. Witnesses, \u00a7 327 \u2014what proper as affecting credibility. Evidence that a witness for the defendant in an action on a written contract for advertising, the defense being that there were certain conditions which were pasted on the contract, and that they had not been fulfilled, testified at a former trial that the conditions were written on a card and pinned on the contract, is admissible as affecting the credibility of the witness.\n4. Witnesses, \u00a7 325 \u2014when prior statements admissible as affecting credibility. In an action upon a written contract for advertising, in which the defense is that there were certain conditions pasted on the contract, and that such conditions had not been fulfilled, such supplement having been lost, evidence that a witness for the defendant just before a prior trial of the case, in the presence of his counsel, stated to plaintiff\u2019s counsel, that the added provisions were in fact written on a card attached to the contract, is admissible as affecting the credibility of the witness.\n5. Witnesses, \u00a7 257 \u2014what proper as affecting credibility. In an action by an advertising concern on an account for advertising, where a witness for defendant testified that plaintiff had agreed to furnish a Spanish editorial and to furnish stereotype plates for a period of one year and had failed- to do so, held that as affecting the credibility of such witness, evidence was admissible to show that the defendant had himself furnished material for copy for the advertisement for three months, and that thereafter no further material was furnished by defendant but plaintiff continued the insertion for the balance of the period as he claimed the right to do according to the contract.\n6. Trial, \u00a7 128 \u2014when refusal to permit counsel to comment on evidence erroneous. The refusal of a court to permit counsel for one party to comment in his argument on a letter which has been admitted in evidence by the adverse party, and which will support the first party\u2019s claim, is reversible error, although the court has allowed such first party to simply read the same to the jury.\n7. Principal and agent\u00a1 \u00a7 249 \u2014when instruction on effect of admission correct. An instruction that \u201cthe admissions of a solicitor or other agent of a principal are not binding on the principal unless the admissions are within the scope of the agent\u2019s authority and are made with reference to the subject-matter of his agency and at the time of the transactions between the parties,\u201d approved.\n8. Estoppel, \u00a7 65 \u2014when instruction correct. An instruction in an action on an advertising contract, the defense being that certain conditions had been added to a supplement to the contract which had been lost, and that such conditions had not been fulfilled; that if the jury believed the plaintiff\u2019s agent had authority only to solicit orders and not to make a contract, and that a copy of the contract containing a clause that the contract contained all the terms thereof had been delivered to defendant, the latter was estopped, after the filing of the order by plaintiff, from setting up any other terms not embodied in the order, in the absence of fraud,, approved.",
        "type": "majority",
        "author": "Mr. Justice Pam"
      }
    ],
    "attorneys": [
      "Cratty Bros. & Flateau and Charles Hudson, for plaintiff in error.",
      "No appearance for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Buyers Index Publishing Company, Plaintiff in Error, v. Triner Scale & Manufacturing Company, Defendant in Error.\nGen. No. 20,384.\n(Not to be reported in full.)\nError to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1914.\nReversed and remanded.\nOpinion filed June 17, 1915.\nStatement of the Case.\nAction by Buyers Index Publishing Company against Triner Scale \u2022 & Manufacturing Company for money due for advertising as per a written contract. From a judgment for defendant, plaintiff appeals.\nPlaintiff\u2019s statement of claim set forth the contract upon which was based its cause of action, which was as follows:\n\u201cThe stereotype plate of the Spanish Writeup 'to be furnished.\nBEFORE SIGNING THIS CONTRACT MANUFACTURERS ARE REQUESTED TO READ IT IN ITS ENTIRETY.\nChicago, Ill. _ _ Date June 28, 1907.\n_ _ Buyers Index Publishing C'o., 59 Pearl Street.,\nNew York.\nGentlemen:\nPlease insert our illustrations, descriptions, etc., to occupy in advertising section only, of the \u2018Buyers Index\u2019 (copyrighted), (published monthly in alternate English and Spanish editions) 1/6 page, English and Spanish Editions, for full year term.\n1. We will, within ten days furnish to your order, matter, cuts, etc., subject to your approval, for printing same. If not furnished you are at liberty to prepare and print such matter as you may consider proper.\n2. It is understood that we will, within five days from date of receipt thereof, return to you corrected the proof which you are to submit to us before issue. If proof is not returned, you are to conclude that it is satisfactory to us. Copies of Index containing our advertisement to be mailed to us free of expense.\n3. It is clearly understood that the conditions above and herein set forth embody all agreements and understandings concerning this present contract, as made or had with said Buyers Index Publishing Co., its agents or employees acting in its behalf, either written or verbal.\n4. In consideration of the above we agree to pay to your order ($225.00) two hundred and twenty-five 00/100 dollars payable one-quarter said amount cash at date of third issue in which our advertisement appears, balance quarterly thereafter. Full amount $225.00.\nName Triner Scale & Mfg. Co.\nBy J. M. Triner.\nAddress 1255 W. 21st St.\nErwin de Montpellier\nRepresentative Buyers Index.\u201d\nIt was claimed that there was due on said contract the sum of $168.75.\nTo this statement of claim defendant filed an affidavit of merits setting forth that the plaintiff had not complied with all the terms and conditions as agreed upon in said contract, and that therefore said contract had become cancelled, and that whatever advertising had been furnished prior to the said cancellation was paid for; wherefore defendant was in no wise indebted to said plaintiff.\nDefendant contended that at the time said contract was executed by defendant, one Erwin de Montpellier, a representative of the plaintiff, made certain agreements with reference to securing lists, writing an editorial in Spanish to be printed in the said publication, and stereotype plates of said editorial writeup to be furnished defendant by the plaintiff; that these agreements were written on a separate piece of paper which was pasted on the back of the printed form of contract, and constituted a part thereof; that the face of it was in form as set forth in the statement of claim, without the following writing in the upper margin:\n\u201cThe stereotype plate of the Spanish Writeup to be furnished.\u201d\nand without the following language in the lower margin:\n\u201cA list of names of hardware dealers to be furnished and translations of incoming and outgoing correspondence attended to during the term of this contract without extra charge. \u2019 \u2019\nJ. M. Triner testified on behalf of defendant that two or three days after the contract had been signed, the said de Montpellier called him on the telephone and stated that the paper that had been pasted on the back containing the special agreements between the parties had become lost, and that he had written on the face of the printed form of contract the substance of the special agreements entered into; that he was the editorial writer and would see that these extra conditions agreed upon were fulfilled, and requested that he make no mention thereof to his principal. Triner testified that he acquiesced in the suggestion made by the representative of the plaintiff; that the contract offered in evidence contained his signature; that it was the contract he signed, save the writing in the margin, and save that the paper containing the extra conditions was not pasted on the back. Plaintiff\u2019s testimony showed that the contract set forth in the statement of claim and offered in evidence was the contract it had received from its representative, de Montpelier, and which it had accepted on July 3, 1907, and under which the advertising had been printed in its publication.\nAbstract of the Decision.\n1. Estoppel, \u00a7 65 \u2014when contracting party estopped by silence to insist upon conditions. A person who enters into a contract for advertising is estopped to claim that the contract sued on is not the contract entered into where, shortly after the signing of such contract and upon hearing from the representative of the advertising concern that a supplement to the contract containing certain conditions insisted upon by the buyer had been lost, he simply relied upon a statement of such representative that the conditions had been written on the main contract, and that he would see that they would be fulfilled, and made no complaint to the seller, at such representative\u2019s request.\nThe following instruction for the plaintiff was refused :\n\u201cYou are instructed that if you find from the evidence that the defendant\u2019s manager, Mr. Triner, signed an order at the solicitation of the plaintiff\u2019s solicitor, and that said solicitor had no authority from the plaintiff to make a contract but only to solicit orders, and that the order contained the clause\u2014\u2018It is clearly understood that the conditions above and herein set forth embody all agreements and understandings concerning the present contract made or had with the principal, its agents or employees acting on its behalf either written or verbal \u2019\u2014and that a copy of the contract containing such clause was thereafter delivered to defendant and received by it, then the defendant is es-topped from setting up as against the plaintiff, after said order has been accepted and filled (if you find it has been accepted and filled) any other agreements or representations not embodied in said written order, unless there was fraud on the part of the solicitor in securing the signing and execution of said order.\u201d\nCratty Bros. & Flateau and Charles Hudson, for plaintiff in error.\nNo appearance for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0427-01",
  "first_page_order": 449,
  "last_page_order": 454
}