stating that evidence of the routine practice of an organization is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice
How later courts described this case
- stating that evidence of the routine practice of an organization is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice
- holding media buyer liable to radio station for airtime purchased on behalf of disclosed client
Written by the judges who cited it.
The opinion
JACK SMITH, Justice
dissenting.
I respectfully dissent. The sole issue in this case is whether the appellant expressly or impliedly by its actions agreed to be responsible for the payment of the Scholtz-sky account.
The evidence shows that appellant was not an advertising agency but was in the business of advising clients how to properly purchase “slot time” in the television and radio media to obtain the best results for the client’s business or product. The appellee was aware of the nature of appellant’s business because it had received a guarantee four years prior to the accrual of the present charges from an advertising agency which assured payment by the advertising agency. This guarantee was for a period of one year, to those in the television and radio media, who by agreement with appellant, extended credit to the appellant for the purchase of “slot time” advice.
In the instant case, the appellant arranged “slot time” for its disclosed principal, Scholtzsky’s, with the appellee. The appellant never agreed to be responsible for the payment of the Schlotzsky account and the fact that the appellee unilaterally decided to hold the appellant responsible fails to reach the essential elements of *213 consummating a contract; that is offer, acceptance, and consideration. The contract relied upon in the majority opinion is an advertising agency contract. The appellant is not an advertising agency. It would be most unusual for one advertising agency to guarantee the credit of another advertising agency. This seems to be the conclusion in the majority opinion.
I would hold that there is insufficient evidence to support the trial court’s findings that the appellant and appellee reached an agreement either expressly or impliedly. I would further hold that the circumstantial evidence is insufficient to support the trial court’s findings that the appellant would be responsible for the Schlotzsky’s account. I would further hold that the general rule is applicable, that is when an agent contracts for a disclosed principal, the agent is not liable for the contract he makes on behalf of his principal. Nagle v. Duncan, 570 S.W.2d 116 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ dism’d). I would reverse the trial court judgment and render judgment for the appellant.