Summary
In Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440 (448), 16 So.2d 213, as in this case, the suit was tried in the county court without a jury and on appeal to the circuit court judgment for the plaintiff was affirmed, and on appeal to this Court we said, "The decision of this issue was for the trial court upon the facts, and unless wholly unreasonable and untenable we must accept it regardless of what any individual member of this Court would, as a trier of the facts, have decided."
Summary of this case from Hunter, et al. v. WilliamsOpinion
No. 35412.
October 11, 1943.
1. CONTRACTS.
Where prizes are offered to the public as part of merchandising plan, only substantial compliance by offeree is necessary to bind the offeror.
2. CONTRACTS.
A merchandising prize-giving plan, whereby a patron would leave registration card indicating where patron could be located at 10 a.m. if patron's name was drawn, and which provided that, if not located by 1 p.m., patron's name would be posted at offeror's premises, contained an implied condition that offeror would use reasonable diligence to locate successful patron within time limits.
"Reasonable diligence" represents a degree between absolute inaction and an extreme effort undertaken against apparent futility, and must be more than merely perfunctory.
3. CONTRACTS.
In determining plaintiff's right to prize won in defendant's merchandising plan which required a patron to leave registration card indicating where patron could be located if patron's name was drawn, plaintiff who had moved from address given on card had no duty to furnish defendant with new address.
4. APPEAL AND ERROR.
A finding of trial court sitting without jury must be accepted regardless of what any member of Supreme Court would as trier of facts have decided.
5. CONTRACTS.
In suit to recover prize won by plaintiff in defendant's merchandising plan, whereby a patron would leave registration card indicating where patron could be located at 10 a.m., if patron's name was drawn, and, if not located by 1 p.m., patron's name would be posted at defendant's premises, where it appeared that defendant's agent went to address left by plaintiff who had moved therefrom some seven months prior to drawing of plaintiff's name, and agent made no further search, whether defendant exercised reasonable diligence in locating plaintiff was a question of fact.
SMITH, C.J., and ROBERDS and GRIFFITH, JJ., dissenting.
APPEAL from circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Brunini Brunini, of Vicksburg, for appellant.
The offerer has a right to prescribe in his offer any conditions as to time, place, quantity, mode of acceptance, or other matters which it may please him to insert in and make a part thereof, and the acceptance, to conclude the agreement, must in every respect meet and correspond with the offer, neither falling short of or going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand.
13 C.J. 279, "Contracts," Sec. 82.
The burden is upon the plaintiff to establish, by a preponderance of the evidence, that she accepted defendant's offer by a substantial performance under and in accordance with the terms and conditions of the offer, the rules of the contest.
Scott v. People's Monthly Co., 129 Iowa, 503, 228 N.W. 263, 67 A.L.R. 413, 416.
The burden is on the plaintiff, Miss Natalie Buck, to establish by a preponderance of the evidence three propositions, namely: (1) The rules of the contest which constitute the terms and conditions of the offer; (2) Acceptance of said offer by a substantial performance under and in accordance with the terms and conditions of the rules of the contest; and (3) Failure of the Seale-Lily Ice Cream Company to perform its duty under the terms and conditions of the plan. All are essential elements of her case. If she fails to establish any one of these premises her case fails and she cannot recover.
Scott v. People's Monthly Co., supra.
There is no mistaking what the rules were, for they were related in detail.
The plaintiff is disqualified by the rules for at least two reasons. (1) Plaintiff failed to show a visit to either store of the defendant on April 8, 1942. (2) The address given by plaintiff on her registration card was incorrect at the time her name was drawn and furnished no clue as to her whereabouts on April 9, 1942, between ten o'clock and one o'clock.
Seale-Lily performed its duty under the terms and conditions of the plan.
The facts as to performance of the contract by Seale-Lily are not disputed. There is no controversy in the entire record as to what the facts are.
It is a question of law whether particular facts constitute a performance or breach of a contract; whether such facts have occurred is, on conflicting evidence, a question of fact.
17 C.J.S. 1294, Contracts, Sec. 630a.
It is for the court to decide as a matter of law whether the uncontroverted facts in this record constitute a performance or breach of contract between Seale-Lily and Miss Buck. There is no issue of fact and no latitude for the court to believe one set of facts or another set of facts. As to what transpired there is no controversy or conflict. The question presented to this court is purely one of law. Taking the terms of the contest which are well established by the plaintiff herself and applying the uncontroverted facts, we urge upon this court that there has been no failure on the part of Seale-Lily to perform the contract in accordance with the terms and provisions. Vollor Teller, of Vicksburg, for appellee.
The proof in this case clearly establishes that the published offer or merchandising scheme consists of three main phases, namely: (1) A contestant must register on the blank registration form provided by the company as a prerequisite to eligibility. (2) A contestant whose name is drawn must have on his person a ticket bearing a stamped date of the day before the date on which his name is drawn. (3) One name is drawn each day and an endeavor would be made between the hours of 10 A.M. an 1 P.M. to locate the contestant whose name is drawn.
The first two phases above relate strictly to the acceptor and the third to the offerer. If the acceptor of the offer complies with the first two phases, then, and in such an event, he is eligible to receive the award, if his name is drawn and he is located by the representative of the offerer.
Appellant cites several authorities announcing the governing principles as conceived by appellant. We have no quarrel with appellant and concede that the authorities cited are applicable to this and similar cases. We concede that (1) the offerer in a merchandising scheme may fix the terms and conditions of the proposal or offer; (2) that when the offer is accepted and a compliance with the terms and conditions thereof are substantially met by the acceptor that a binding and enforceable contract is made; (3) that the conditions of the offer must be met by any person accepting the offer; and (4) that the burden is upon the plaintiff to show by a preponderance of evidence that she accepted the offer and substantially performed her part in accordance with the terms and conditions of the offer or proposal in the merchandising scheme.
Where we concede the foregoing, we likewise contend (1) that it is encumbent upon the offerer in a merchandising scheme to substantially comply with his or its part under the rules employed in the proposal made to the public; (2) that appellant could not change the rights of a contestant through its misinterpretation of the rules as published, nor could it change or give the rules its own interpretation; (3) that there must be a reasonable interpretation given the rules and terms of the proposal, and in case of ambiguity in any particular, the instructions should favor the acceptor rather than the proposer who prepared and submitted the offer; and (4) that an acceptor of the instant proposal has the right to assume that the offerer will make a reasonable effort to contact the person whose name is drawn under the scheme and substantially comply with all duties imposed upon the offerer.
The appellant's representatives, secure in the feeling that they could act as they pleased in the administration of the merchandising scheme, either overlooked the positive duty resting upon the company to carry out, in a substantial manner, its contractual obligation or were devoid of a sense of responsibility in regard thereto.
The proof in this case unequivocally establishes appellant's right to recover under the terms and conditions of the offer.
Mooney v. Daily News Co., 133 N.W. 573, 37 L.R.A. (N.S.) 183; Minton v. Smith Piano Co., 33 L.R.A. (N.S.) 305, 36 App. D.C. 137.
It is a familiar rule in this state that a finding of fact by the court, sitting as court and jury, will not be disturbed on appeal unless manifestly erroneous
Magee Laundry Cleaners v. Harwell Appliance Co., 184 Miss. 435, 185 So. 571; Green v. Pearson, 145 Miss. 23, 110 So. 862.
Natalie Buck, a minor fourteen years of age, brought suit to recover the sum of $100 as a prize alleged to have been won by her in a merchandising plan inaugurated and conducted by the Seale-Lily Ice Cream Company. This plan, of which widespread notice was given to the public, was as follows: Any person who visited either of the two stores of defendant in the City of Vicksburg was allowed to register his name and address and upon any visit to either store was allowed to receive a ticket stamped with the date of such visit. It was not a condition that the visitor make any purchase.
The form of the registration card was as follows: "Necessary to register only once. Name ____. Address ____. Phone No. ____. I can be located around 10 o'clock in the morning at ____." It was necessary to register only once, and this card was filed with others alphabetically. The tickets bore the following form: "Win $2.00 to $100.00 free. Keep this identification ticket, it shows you visited one of our stores on the date below. Date ____. Seale-Lily Ice Cream Stores, 2209 Washington Street, 3600 Washington Street." On the reverse was printed: "Notice. To win you must have a ticket on your person when called upon bearing date of the day before the drawing. See circular for details."
Each morning about 10 o'clock a name is drawn from the box of names and the address of the person whose name is drawn is obtained from his registration card on file. Immediately thereupon the manager or other officer proceeds to the address given and undertakes to locate the successful person. It is conceded that the purpose of the card is to serve as a guide to the whereabouts of this person and that reasonable clues obtained at the address would be followed until he was located or the trail ended. At one o'clock P.M. of the same day, the name drawn is posted at the window of the main store. The amount of the prize was initially $2 but if the winner is not located, this amount is added to a like amount for the following day and so cumulatively until a winner is found. The maximum award, however, is $100.
The suit was filed in the county court of Warren County and, a jury being waived, the case was tried to the court on the law and facts. Judgment was rendered for plaintiff in the sum of $100. The cause was appealed to the circuit court and there affirmed, whence an appeal here. The trial court was justified in finding that the defendant's representative in an endeavor to locate plaintiff went to the address given on the registration card, 1101 Grove Street, where was located a large frame house containing two apartments facing Grove Street and a third apartment facing Adams Street. A lady at the address given responded to his call who stated that plaintiff did not reside there and was unknown to her. The fact was that plaintiff resided at the address when she registered but had moved about seven months before and was at the time of the drawing living at 1208 Clay Street in said city. Defendant's representative made no further inquiry at the address given although the conversation with his informant disclosed that a lady occupied the apartment upstairs but he was told she was not in. Thereupon, he returned to the store and posted plaintiff's name on the window at the store. Her demand later for the prize was rejected.
At the time the above inquiry was made, plaintiff was attending school at a local academy and had her dated card with her. The point is not seriously pressed that she did not have the proper card "on her person" but it is relevant to note that she testified that she had it with her in one of her school books, in which connection it was shown that an award had been paid to another patron who was a pupil of the same academy and was not located at the address given but at picnic grounds in the National Park. Moreover, this patron did not have her ticket "on her person" but in her automobile about a block away.
The authorities cited by defendant, appellant here, are acceptable upon the general principles applicable to such contracts where an offer to the public is accepted by an individual. These authorities need not be set out here. It is sufficient that these cases require that the offer be accepted according to the terms fixed by the offeror. The trial court was justified in the finding, implicit in his judgment, that the dates upon the plaintiff's card were placed there by the defendant and conformed to the requirements. The concession that only a substantial compliance by the offeree is necessary is found in appellant's citation to Scott v. People's Monthly Co., 129 Iowa, 503, 228 N.W. 263, 67 A.L.R. 413, 416, citing 34 Cyc. 1743.
In view of the finding of the trial judge, the main issue here presented is not whether plaintiff followed the printed rules, but whether defendant followed the implied conditions thereof. It is clear that a party in the position of defendant could not be held to have carried out the conditions of his undertaking by merely drawing a name without any effort to locate the successful party. The undoubted purpose of the address upon the registration card was, as contended by the defendant, to furnish a guide to the whereabouts of the winner. It was to be followed out with reasonable diligence, either to locate the winner or to obtain a workable clue to his whereabouts. There was no condition that a patron remain at the address given at all times nor continually between the hours of 10 a.m. and 1 p.m. On the other hand, it is clear that the defendant's plan and practice was to devote this period to a reasonable attempt to lolate the addressee and that in the instant case, a search, if successful, would have disclosed a qualified winner.
We hold therefore that in the circumstances presented here there is an implied condition that the offerer will use reasonable diligence to locate its successful patron within the time limits, using the address or other information on file as a guide in its search. There is no exact definition of reasonable diligence but it represents a degree between absolute inaction and an extreme effort undertaken against apparent futility. It must be more than merely perfunctory. It is no answer to urge that defendant had on file some twenty thousand cards. The difficulty in locating plaintiff is to be measured as if hers was the only card on file. There was no duty or condition which required her to furnish a new address, even though a failure to do so placed upon her the hazard that even reasonable diligence by the defendant would not disclose her whereabouts.
The decision of this issue was for the trial court upon the facts, and unless wholly unreasonable and untenable we must accept it regardless of what any individual member of this court would, as a trier of the facts, have decided. The trial court may have taken into account any one of several relevant considerations; for example, the availability of judicially recognized avenues of information; or the readiness with which the defendant accepted a single inquiry as an exhaustive research; or the probability that the fact that the maximum award was at stake was an unconscious factor in diminishing the zeal of defendant's representative. In any event, we are concerned, however, solely with his conclusions and the fact that the legal principles involved make reasonable diligence an implied element in defendant's contract, and such issue was one of fact for the trial judge. We have no justifiable basis for displacing his judgment.
Affirmed.
On the evidence appearing in this record, the court below should not have awarded the appellee a recovery.
The requirement here that the appellee set forth on her registration card the place at which she could "be located around ten o'clock in the morning" was admittedly for the purpose of enabling the appellant to find her when she became the winner at one of its prize drawings. From this, it necessarily follows that she should either have been there then, or, if not, that one calling there then could obtain information by which she could be found, prior to one o'clock P.M. of that day, at which time, according to the evidence, the appellant's obligation to continue to try to find her ceased, as well as her right to the prize if she had not then been found. The appellant's only duty to the appellee in this connection was to inquire for her at the address given it by her; this duty its agent fully met and his failure to ascertain her then whereabouts was not his but her fault alone.
What occurred in this connection was this: When the appellee registered with the appellant she lived at and gave as her address 1101 Grove Street, at which she was then living with her mother. Seven or eight months before the day on which her name was drawn as the winner of this prize, her mother removed therefrom to another part of the city. She accompanied her mother and was living there with her at the time of this drawing. She did not notify the appellant of this change in her address and it knew nothing of it. On the morning and after the appellee's name was drawn as the winner of this prize, Montgomery, an agent of the appellant, went to the address the appellee had given and found a two-story house at the corner of Grove and Adams Streets, consisting of three apartments, two of them on the ground floor and one above. One of the ground floor apartments faced on and was entered from Adams Street, the other ground floor apartment and the one above both faced on and were entered from Grove Street, each having separate entrances therefrom. Each of these apartments had separate street numbers on their front steps and above their front doors, the number of the one on Adams Street and of the upper apartment does not appear but the number of the one on the ground floor facing Grove Street was 1101, the number of the apartment in which the appellee lived when she registered with the appellant seven or eight months before, and at which she had advised the appellant that she could be located. Montgomery found that the apartment numbered 1101 was then occupied by Mrs. Allred who informed him that the appellee was not there, that she, Mrs. Allred, had lived in the apartment about six months and that she did not know the appellee nor where she could be found. The occupant of the other apartment was not at home and Mrs. Allred so informed Montgomery, and he made no further attempt to find her. Whether the occupant of the Adams Street apartment was at home or not does not appear and Montgomery made no attempt to ascertain her whereabouts. The appellant was under no duty to the appellee, and consequently its agent Montgomery was not, to inquire for her at either the Adams Street apartment or the upper apartment on Grove Street. Moreover, if Montgomery had inquired at the second, his inquiry would have been fruitless.
The judgment of the court below should be reversed and the cause dismissed.
Roberds and Griffith, JJ., concur in this dissenting opinion.