With all due respect, to my mind the evidence in this case presents a substantially different picture than that disclosed by the statement of facts in the opinion of the court. For that reason, it is necessary for me to set out the facts as they appear to me as a basis of my dissent.
Galter was the publisher of a trade journal known as the "War Plant Bulletin." He entered into negotiations with the defendant to print and mail the booklet. The defendant investigated and found that Galter had no credit standing and *Page 356 for that reason declined to enter into a contract with him. Galter had a large number of contracts with advertisers whose advertisements were published in the booklet. The defendant suggested to Galter that if he would assign these contracts to the defendant so as to secure payment of the cost of the publication and mailing, the defendant would enter into an arrangement with him. Galter accepted this condition, made assignments of the advertisers' contracts, nearly all of which were executed by the advertisers and delivered to the defendant. The arrangement was verbal and in substance was as follows: Galter's customers were to pay their advertising in the War Plant Bulletin directly to the defendant; out of this the defendant was, to pay the expenses of printing and any expense it may have incurred in connection with the printing and mailing of the booklet, and pay the remainder to Galter. As the execution of the project proceeded, it became necessary for Galter to furnish a list of firms and persons to whom he wished the booklet mailed. The material part of the negotiations which were carried on by letter and telephone follows:
Sept. 3, '42 — Galter wrote Woodall inquiring about list of
addresses.
Sept. 9, '42 — Woodall wrote Galter at his Chicago office at.
length in regard to furnishing a list.
Sept. 10, '42 — The plaintiff wired Galter as follows:
"Will supply 25,000 metal working plants
and machine shops, about 20,000 personalized
with name of one man per plant, balance company
address only, typed on gummed labels 24
to 33 per sheets, original and 3 carbons each
name at total cost of $1,250. Can complete in
4 working days after receipt of order."
— On the same day, he wrote Galter a lengthy
letter in regard to the labels.
Sept. 10,'42 — Galter wrote Woodall a letter in regard to the
labels to be furnished, in which he said:
*Page 357
"I wish to make it perfectly clear that we will
never resell a copy of your list. Also, our use
of your list and our crediting you as a source
of it, should very readily create business for
you among our many clients."
Sept. 11, '42 — Woodall wrote Galter in reply to Galter's letter
of the 10th. A phone conversation followed
between Galter and the plaintiff, the date of
which is not given.
In the meantime, the plaintiff had investigated
Galter's financial standing, which he
found unsatisfactory, and in the course of the
conversation, asked Galter how he proposed to
pay for the service and how he was to assure him
that the names would not be pirated. Galter
told the plaintiff that the Democrat Printing
Company of Madison, Wisconsin, and the head
of that company, Mr. Brandenburg, were personally
backing his enterprise; that they would
not only issue the orders to plaintiff and pay
Galter's bills.
Galter told plaintiff they were also advancing
money to him for the conduct of his business,
and that he, Galter, had that arrangement with
Brandenburg. There was no such arrangement
as Galter represented and the defendant
knew nothing of Galter's representations to the
plaintiff.
Plaintiff then told Galter that if the Democrat
Printing Company and Mr. Brandenburg
would issue the orders and give him absolute
assurance that the labels would not be pirated
or used for any other purpose than the one
mailing and stated that the assurance must be
in writing and in those words, he would be glad
to go ahead. Galter communicated this to the
defendant.
Sept. 14, '42 — The defendant wrote Woodall as follows:
"This will confirm Mr. Galter's order to you
over the phone today, with the following understanding:
*Page 358
"1. Total labels; 25,000. These are to be on
8 1/2 x 11 gummed paper, `24 on,' the price being
$10 per M, or $250 for this order.
"2. These are to include you, entire 23,000
list which we understand you can personalize
on all but some 4,000 machine shops. The
name of the top production executive below the
name and address of the firm after one space
is skipped to read, Att. Mr. John Doe (position).
"3. To make up 2,000 names between your
23,000 list and our need for 25,000 you are to
allocate multiple copies to the various top
executives among large companies.
"4. All of the names on this list will be
separated geographically.
"5. You are to have the Job completed a
week from today, September 21st, and shipped
to us on that date by air express. You will ship
as much as is completed by express before then.
"6. This is our assurance that we will not
sell or copy these labels, nor use them for any
other purpose than mailing the first issue of
War Plant Bulletins.
"Mr. Galter anticipates conferring with you
in New York or Chicago within thirty days
regarding a mutually satisfactory arrangement
for subsequent addressings."
Sept. 15, '42 — Upon receipt of this letter, the plaintiff wired
the defendant as follows:
"Cannot comply specification two your letter
at price or time stated. Regular method of addressing
is system we employ except no title
will be listed. Advise."
Following this telegram Galter called the
plaintiff on the telephone. In the course of the
telephone conversation some details were discussed.
Sept. 16, '42 — Plaintiff wrote the defendant air mail, special
delivery, as follows:
"Mr. Galter just telephoned me from Chicago,
and all questions have been straightened
*Page 359
out so that we are again able to proceed with the
work.
"He has also asked us to ship anything that.
we have ready this week end to you, and follow
with the balance of the job at the earliest possible
date.
"The list arrangements for this first mailing
have been rushed and, consequently, there was
some difficulty in getting a thorough understanding
of your requirements and matching
them with what we could do in the time allotted.
I see no reason at all why a mutually satisfactory
arrangement for regular mailing cannot
be worked out just as soon as Mr. Galter and
I are able to get together."
A copy of this letter was sent to Galter.
Sept. 17, '42 — The defendant wrote the plaintiff as follows:
"When I received your wire yesterday I
phoned Mr. Galter in Chicago because I wasn't
too conversant with the arrangements you and
he had made. He then called you; and your
letter, just at hand, indicates that all
difficulties have been ironed out.
"The `specifications' which appeared over my
signature were of Galter's dictation. Neither
of us understand all the intricacies of your
mechanical problems in addressing; and I
assure you we were not trying to make your
task difficult or expensive. We want to work
with you in a mutually helpful way and to
look forward to a long and pleasant association."
Sept. 19, '42 — The plaintiff wrote Galter as follows:
"This is to let you know that we are shipping
today by air express 4,050 addressed labels to
Mr. Brandenburg at the Democrat Printing
Company.
"These labels are arranged geographically
and are in three lots."
A carbon copy of this letter was sent to
Brandenburg.
*Page 360
Sept. 22, '42 — The plaintiff wrote Galter as follows:
"We are shipping by air express tonight two
lots of addressed labels, to Mr. Brandenburg at
Madison, Wis. These are arranged geographically
and total 10,700."
A carbon copy was sent to Brandenburg.
Sept. 23, '42 — Letter from plaintiff to defendant:
"Thank you for your very cordial letter of
the 17th. I, too, feel that there is every reason
why we should have a mutually satisfactory,
pleasant and long-term association and I now
feel that this is a distinct possibility."
Remainder of letter not material.
Sept. 25, '42 — Plaintiff wrote Galter as follows:
"We are inclosing an invoice covering the
addressing on gummed white labels of names
selected in accordance with your instructions.
The addressed labels were all shipped to Mr.
Brandenburg by air express.
"We shall look forward to hearing from you
regarding the results of this mailing."
Sept. 30, '42 — Letter of Galter to plaintiff (not material).
Oct. 3, '42 — Plaintiff answered Galter's letter (not material).
Oct. 9, '42 — Galter writes Woodall in regard to the bill.
Oct. 15, '42 — Plaintiff again wrote Galter (not material).
Above letters relate to negotiations between
plaintiff and Galter as to order for second lot.
Oct. 28, '42 — Galter wrote the plaintiff as follows:
"I just talked with Mr. Brandenburg on long
distance to place the order with you, but he
suggested that I rush the order to you since he
was less familiar with the whole matter than I am.
As previously, you will bill the Democrat
Printing Company and ship the completed job
to them at Madison, Wisconsin via air express.
A copy of this letter is being sent to Madison.
Should you wish to have a confirmation of this
order from the Democrat Printing Company,
please wire them so no time will be lost in your
getting under way to deliver the job on time.
*Page 361
"If you should be unable to complete the job
in the time specified please wire me here without
delay indicating your next best delivery
date so we can make our plans accordingly.
"I had expected to be in New York by now
and would have been were it not for my illness.
However, I'll definitely be there on November
9th, at which time I expect to see you."
Oct. 29, '42 — Plaintiff wrote Galter:
"Yes, we can complete the job for you on
time. As a matter of fact, most of the labels
have already been addressed and I expect to
ship them early next week. I figured you
would want another run of them, and the
opportunity presented itself to do some typing
while waiting for material on other jobs.
"Attached is a copy of a wire I have sent to
Mr. Brandenburg requesting confirmation of
the order and agreement that the names will
not be copied nor used for any other purpose
than this one mailing.
"I look forward to seeing you on November
9th and will schedule my time so as to spend as
much of the day with you as may be needed."
Carbon copy to Brandenburg.
— Telegram from plaintiff to Brandenburg read
as follows:
"Please air-mail confirmation of order for
readdressing list and include same assurance
as last time that names will not be copied."
Oct. 29, '42 — Defendant to plaintiff:
"Please furnish by post 25M addressed labels
per detailed order of Mr. Galter. This is
merely confirmation and guarantee of payment
as I don't know details of your deal —
presumably same in all respects as last order."
Nov. 6, '42 — Plaintiff to defendant:
"We are inclosing an invoice for the 25,000
gummed white labels addressed in accordance
with instructions from Mr. Galter, of War
*Page 362
Plant Bulletins, and covered by your order No.
2853."
— On the same day, plaintiff wrote Brandenburg:
"This is to let you know that we have shipped
another set of 25,000 addressed labels to you.
These were sent by air express and left here
yesterday."
There is little if any conflict in the evidence relating to the integration of the contract between the plaintiff and defendant. A consideration of the facts makes it obvious that the determination of the rights of the parties depends very largely upon the construction of paragraph 6 in the letter written by the defendant to the plaintiff on September 14th. This paragraph is as follows:
"This is our assurance that we will not sell or copy these labels, nor use them for any other purpose than mailing the first issue of War Plant Bulletins."
In my opinion, the meaning of the word "we," as used in this paragraph, must be determined from what immediately preceded it. The plaintiff had investigated Galter's financial standing, which he found to be unsatisfactory. In the course of a telephone conversation between the plaintiff and Galter, the plaintiff asked Galter how he proposed to pay for the service and how he (Galter) was to assure him that the names would not be pirated. In response, Galter told the plaintiff that the Democrat Printing Company of Madison, Wisconsin, and the head of that company, Mr. Brandenburg, were personally backing his enterprise; that they would not only issue the orders to the plaintiff and pay Galter's bills, Galter also told the plaintiff they were advancing money to him for the conduct of his business and that he, Galter, had that arrangement with Brandenburg. There is no evidence of any such arrangement, and the defendant knew nothing of Galter's representations to the plaintiff. There is no evidence that Galter *Page 363 at any time, or Woodall until after the commencement of this action, made these representations known to the defendant.
The plaintiff then told Galter that if the Democrat Printing Company and Mr. Brandenburg would issue the orders and —
"will give me absolute assurance that the list will not be pirated or used for any other purpose than the , one mailing and will make this statement in writing, in those words" —
he would be willing to go ahead. Galter then communicated plaintiff's demand to the defendant, and it was in response to this demand that the defendant wrote the letter of September 14, 1942.
It is manifest that when the defendant used the words "we" and "us" in the letter of September 14th, it was in no way referring to Galter, nor did it give the assurance in the language indicated by the plaintiff. If it had followed that language, paragraph 6 would have read something like this:
This is our assurance that these labels will not be sold or copied nor used for any other purpose than mailing the first issue of War Plant Bulletins.
Instead of using the language indicated by the plaintiff the defendant assured the plaintiff that —
"We will not sell or copy these labels nor use them for any other purpose than mailing the first issue of War Plant Bulletins."
This was a material departure from plaintiff's proposal but the plaintiff was satisfied with it and shipped the labels. To my mind this makes clear that the pronoun "we" used in paragraph 2, and the word "us" used in paragraph 5, and the word "we" used in paragraph 6, refer not to the defendant and Galter but to the defendant alone.
In business correspondence the word "we" is frequently used when an officer or employee is writing for the corporation *Page 364 to refer not to the writer but to the corporation. Woodall was doing business under the name of W. P. Woodall Company. Throughout his correspondence with Galter and with the defendant, Woodall used the word "we" in its different forms to refer to the W. P. Woodall Company and to himself. In Woodall's letter to Galter of September 11th, he used the pronoun "we" a number of times, referring to himself. In his notice to Galter in regard to shipments he used "we" as referring to the W. P. Woodall Company, and so throughout his correspondence the pronoun "we" is frequently used to refer to either Woodall or his company.
The fact that Woodall's request was phrased as it was, and that it was the assurance of the defendant that he was seeking and not that of Galter because he had found Galter to be financially irresponsible, makes it impossible for me to agree that the word "we" in the letter of September 14th was used by the writer as including the defendant and Galter or that it was so understood by the plaintiff. The plaintiff was asking that the defendant make itself liable. He already had Galter's assurance for what it was worth that he would not sell or copy the list.
On October 15, 1942, the plaintiff wrote Galter as follows:
"Thanks for sending the bill for the last job up to Madison. I find that this was sent to you because they felt it would need your O.K. before going to the Democrat Printing Company. However, in the future bills will be sent direct to them at Madison."
This indicates that the plaintiff knew that the arrangement for the manufacture and shipping of the labels was for Galter and not for the Democrat Printing Company; otherwise he would not have thought that Galter's O.K. was necessary.
We come now to the negotiations for the second order of labels which were carried on between the plaintiff and Galter. After the plaintiff and Galter had reached an agreement and on October 29th, plaintiff wired defendant as follows: *Page 365
"Please air-mail confirmation of order for readdressing list and include same assurance as last time that names will not be copied."
In response the defendant wired or wrote the plaintiff the communication of October 29th, which is as follows:
"Please furnish by post 25M addressed labels per detailed order of Mr. Galter. This is merely confirmation and guarantee of payment as I don't know details of your deal — presumably same in all respects as last order."
The words "I don't know details of your deal" clearly refer to Galter's deal with the plaintiff for the second instalment of labels and make no reference to the September contract between the plaintiff and defendant. The defendant presumes that the two deals are the same. The assurance given by the defendant and embodied in paragraph 6 of the September 14th letter was an arrangement directly between the plaintiff and defendant and was no part of Galter's first deal with the plaintiff. Galter had no authority to bind the defendant, and the assurance given by the defendant was no part of the deal between the plaintiff and Galter which relates solely to the labels. As a condition of shipping the labels plaintiff demanded assurance from defendant, which it gave.
Even if it should be held that the words "presumably same in all respects as last order," refer to defendant's assurance, it means no more than that the defendant will not sell or copy the labels sent to it nor use them for any other purpose than mailing the current issue of the War Plant Bulletin.
As already pointed out, the word "we" does not include Galter and gives no assurance that there will not be a misuse of the labels by Galter. For some reason the plaintiff did not insist upon having the language which he suggested, that is, —
"absolute assurance that the list will not be pirated or used for any other purpose than the one mailing" —
incorporated in either of the orders confirmed by the defendant. He accepted the assurance given as a sufficient compliance. *Page 366 The defendant is bound not by any manifestation made by Galter to the plaintiff but only by those manifestations which it made to the plaintiff.
The court found that the relation between the defendant and Galter was not that of partnership but that of printer and customer. It is plainly apparent from all the correspondence that the plaintiff never acted upon the assumption that Galter had authority to represent the defendant. When it came to matters other than the negotiations of the orders, the plaintiff relied solely upon the agreements of the defendant made directly with him.
One further matter remains to be considered, which is, Did the defendant violate its agreement with the plaintiff? The trial court found that the agreement of the defendant was not to sell or copy said labels nor to use them for any other purpose than mailing the first issue of War Plant Bulletin, and the first instalment of labels were sold upon the strength of that agreement; that Galter placed a second order with the plaintiff; that thereupon the plaintiff wired the defendant to air-mail confirmation of the order for readdressing list and "include same assurance as last time that names will not be copied," whereupon the defendant responded by letter of October 29, 1942, which is as follows:
"Please furnish by post 25M addressed labels per detailed order of Mr. Galter. This is merely confirmation and guarantee of payment as I don't know details of your deal — presumably same in all respects as last order."
That within a week after the delivery of the second order the defendant permitted Galter to take possession of the labels and take the same to Chicago for the declared purpose of editing the same; that the reason for editing same was that the returns from the first mailing had indicated certain misdirected envelopes and envelopes to deceased persons and the like; that said Galter had possession of said labels in Chicago for several days and thereafter the defendant affixed said labels *Page 367 furnished by Galter to the magazine and mailed out the second edition. The court held the defendant's permission to let Galter take the labels to Chicago was a breach.
No claim is made that the defendant has ever at any time sold or copied the labels nor used them for any other purpose. than mailing the first issue of War Plant Bulletin. The defendant is in no way liable for the acts of Galter unless the sixth paragraph of the letter of September 14th can be interpreted as an assurance that neither the defendant nor Galter would use the labels for any other purpose than the designated purpose. To my mind, the state of the negotiations at the time the defendant wrote the letter of September 14th, in response to Galter's demand that the defendant and Mr. Brandenburg issue the orders and give the assurance that the labels would not be misused and the defendant's response thereto, permit no other construction of paragraph 6 than that the defendant was speaking for itself and not for Galter. In my opinion, therefore, the defendant is not liable for what other use Galter may have made of the labels while he had them in his possession for the purpose of correcting them, which was a perfectly normal and reasonable thing for him to do, and not a breach of defendant's agreement. The labels were the property of Galter, paid for out of his funds, and he alone derived any benefit from their use.
In my opinion, the judgment should be reversed and the complaint dismissed.
I am authorized to state that Mr. Justice FRITZ and Mr. Justice FAIRCHILD concur in this dissent. *Page 368