#### Home Instructor Publishing Company, Defendant in Error, v. Blumenstock Brothers, Plaintiff in Error.

Gen. No. 21,502.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.

Heard in this court at the October term, 1915.

Affirmed.

Opinion filed January 31, 1916.

Statement of the Case.

Action by the Home Instructor Publishing Company, plaintiff, against Blumenstock Brothers, a corporation, defendant, in the Municipal Court of Chicago, to recover for advertising. To reverse a judgment for plaintiff for $228.95, defendant prosecutes this writ of error..

Plaintiff published a paper called “The Home Instructor,” and contracted with defendant to advertise the product of the American Cereal Coffee Company. The order called for the insertion in the October edition 1914, the price to be 68 cents a line, less commission. The advertisement appeared in the October edition. A provision in the order was as follows:

“This order is placed with the understanding that the cost per sale will not exceed the average cost of other mail order mediums used by this advertiser. That this and other copy not exceeding 387 lines will be repeated in the Dec. or any later issue if necessary without charge in order to produce orders at the average cost.”

The advertisement had a coupon or form of order with a “key number” attached, which purchasers' detached and forwarded to the coffee company. In this way account was kept of the sales resulting through the advertisement. It appeared that plaintiff was ready and willing to carry out its obligation to con*584tinue the advertisement, but was ordered by defendant not to run it after the October issue.

Abstract of the Decision.

1. Contracts, § 219 * —how contract for advertising construed. In an action to recover on a contract for advertising, a provision in the contract that “this order is placed with the understanding that the cost per sale will not exceed the ’ average cost of other mail order mediums used by this advertiser. That this and other copy not exceeding 387 lines will be repeated in the Dec., or any later issue if necessary without charge in order to produce orders at the average cost,” held to be construed as an undertaking to continue the advertisement without further cost until the results to the advertiser, considering cost, were equal to the results obtained from other papers.

2. Damages, § 57 * —when advertiser liable for contract price of advertising. In an action to recover on a contract for advertising, where the contract provided that the advertisement should be continued without additional cost in subsequent issues of plaintiff’s publication until the results to the advertiser, considering cost, were equal to the results obtained from advertisements in other papers, but where, after one publication, defendant ordered plaintiff not to insert the advertisement again, defendant is liable for the contract price, although it made but one sale as a result of the advertisement, plaintiff not being accountable for failure to perform in such case.

Fyffe, Ryner & Dale, for plaintiff in error.

L. H. Craig, for defendant in error.

*

See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, game topic and section number.

Mr. Presiding Justice McSurely

delivered the opinion of the court.