Manufacturers' Record Publishing Co. v. Holton

Opinion by

William W. Porter, J.,

This suit is brought for the price of publishing and advertising, in the Manufacturers’ Record, pursuant to a written order, designating the time, space and the price, an advertisement for the defendants. . The order had at its head the notice, “The publisher will not be responsible for any agreement not specified on this order.” The order further says that the advertising rate given includes a subscription to the Manufacturers’ Record and the Daily Bulletin of the Manufacturers’ Record. Then follows before the signature, this detached sentence, “Illustrations of new machinery and trade notes free.” The defense contained in the affidavit is that the defendants gave the order to an agent of the plaintiff who represented that “ the said paper had the largest and best circulation of any similar paper in the south,” and that the agent distinctly warranted and agreed with the defendants that an advertisement in the Record would result in additional business in excess of the cost of the advertisement. The defendants add that solely upon the representations set forth, they signed the contract and that it now appears that such representations were false and untrue ; that the said paper has not the largest circulation of any similar paper in the south and is not a valuable advertising medium for the defendants. The affidavit further alleges that the plaintiff failed to furnish “ illustrations of new machinery and trade notes.”

As to the first matter, it is to be observed that the affidavit does not say that the Manufacturers’ Record has not the largest “ and best ”■ circulation. The denial is not as broad as the allegation of representation. The language as set forth in the affidavit, even if used by the agent, was nothing more than puffing, which did not go beyond the extent permitted by law. As to the second matter, the affidavit does not say that the warranty set up is made by the agent for his principal. The affidavit is susceptible of the interpretation that the agent himself gave the warranty. Assuming that the agent had the authority to warrant and that he did for his principal, attempt to warrant, the language set up by the defendants in the affidavit scarcely goes beyond the expression of an opinion. .Judging the contract by normal standards, the plaintiff’s agent would be assuming an obligation wholly indeterminate at the time it was given. The language of the affidavit is not that of a warranty, in the words in which it was given, but more that of a prophecy.

Finally, the defendant says that the illustrations of new machinery and trade notes were not furnished. The writing-attached to the statement evinces no binding obligation to issue illustrations and trade notes. The defendant undoubtedly became entitled to the benefit of any such as were issued by the plaintiff. No averment appears that “ illustrations and trade notes ” were published. No averment is made that the plaintiff did not send them.

The judgment is affirmed.