OAKES, Circuit Judge:
This appeal is brought by a television station and network owner, Columbia Broadcasting System, Inc. (CBS or the medium), from a judgment denying it recovery in its diversity suit against a sponsor, Stokely-Van Camp, Inc. (Stokely), for payment for advertising placed by an advertising agency, Lennen & Newell, Inc. (Lennen or the agency), which went bankrupt. Since the sponsor had paid the agency for the advertising but the agency had not paid the medium, the question is on which party the loss must fall, the medium or the sponsor. The case is especially intriguing since there have been surprisingly few decided cases on the issue of ultimate financial responsibility for radio and television advertising. The United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, granted the sponsor's cross-motion for a summary judgment dismissing the complaint under Fed.R.Civ.P. 56, on two grounds, first, that there was no actual or apparent authority on the part of the agency to bind the sponsor and, second, that the medium was in any event estopped from holding the sponsor responsible.
Stokely, the sponsor, is an Indiana corporation engaged in the production, sale and distribution of food products throughout the United States. Stokely uses advertising, including television commercials, in connection with the promotion and sale of its products. CBS owns a television network which transmits programs to approximately 200 independently owned and operated stations as well as to five stations here involved which CBS also owns outright.
Lennen was a so-called "full service" advertising agency,
CBS sold time for Stokely commercials both on its network under so-called network agreements dated April 9, 1971, and April 12, 1971, and on the five specific CBS stations under a series of 13 specific contracts running from December 10, 1970, to September 20, 1971. Lennen would prepare and send to Stokely schedules containing the station, date, program and time for each Stokely commercial to be shown during the forthcoming three months on network television and would also advise Stokely of the station, date and time for each Stokely commercial to be shown locally by the CBS television stations. At all times in question under both the network and the station contracts CBS would bill Lennen for the cost of the advertising time less 15 per cent, which is the standard commission in the trade for an advertising agency. In no case did CBS bill Stokely directly or forward to Stokely the CBS agency invoices or any indication of accounting between the agency and the medium. Rather, Lennen would bill Stokely either prior to or following its receipt of CBS invoices. The bills to Stokely from Lennen would be for 100 per cent of the cost of the advertising, so that upon payment Lennen would receive its 15 per cent "commission." It also appears that Lennen would bill Stokely for certain production costs incurred in connection with the commercials or for other disbursements.
The network and the station billings were separately made by CBS to Lennen, separately accounted for in the CBS books and separately paid by Lennen. With respect solely to network advertising, from August 31, 1970, through September 2, 1971, there were 13 invoices rendered by CBS to Lennen. Only the first four of these were paid by Lennen, the dates of payment being set out in the footnote.
In respect to the station invoices it appears that 31 were rendered by CBS to Lennen (one of which was a revised June, 1971, invoice) between October 30, 1970, and December 31, 1971, of which only seven were paid as set forth in the footnote.
It should also be pointed out preliminarily that in respect to the network contracts here relied upon by CBS, the first was initiated by Lennen by verbal order confirmed by letter of Lennen to CBS dated May 4, 1971, stating that Lennen was purchasing "in behalf of" Stokely.
CBS then sent to Lennen a "Network Television Agreement" with a covering letter dated May 25, 1971. The covering letter stated that if the agreement were in order, Lennen should return it to CBS for countersignature, after which "a fully signed copy" would be returned to Lennen. The covering letter, Exhibit C, said, however, "Until any modifications have been mutually agreed upon, the enclosed Agreement shall constitute the understanding between us with respect to this purchase." We agree with appellant, CBS, that the contract was plainly accepted by Lennen by its action in forwarding the commercials to be broadcast, even though no signature and countersignature were obtained. The agreement specifically refers to Lennen as "acting as agent for Stokely-Van Camp, Inc." The agreement incorporates certain obligations running to and from the advertiser, Stokely. Among other things it provides that "Agency and Advertiser will indemnify and hold harmless CBS and any stations" from and against various claims arising out of the broadcast of the "Agency Package," and conversely provides that CBS will indemnify and hold harmless "Agency and Advertiser" from and against claims arising out of the particular programs which it supplies. (¶ 2.) The agreement also provides that "if this Agreement is with a recognized advertising agency each payment hereunder shall be subject to the deduction therefrom of an advertising agency commission in an amount equal to 15% thereof." (¶ 8(c).) The agency and advertiser under the network agreement (¶ 19) are required to conform to requirements of § 508 of the Federal Communications Act, 47 U.S.C. § 508, and also to make certain warranties and representations. The agreement further provides in Paragraph 5: "(it being understood that Agency acting as agent for disclosed principal)."
The second network contract is the same as the first and was handled in the same way with a covering letter containing the same language and no signatures to the agreement. It seems clear enough in regard to the network contracts that they were in full force and effect despite the fact that they were never signed, the forwarding of the commercials constituting acceptance of the terms by Lennen. See 1 Restatement of Contracts § 63 (1932).
The station contracts were all in writing and signed by CBS and Lennen with the exception of one contract, a signed original of which cannot be located; as did the district court, we will assume that the missing contract was signed. These station contracts are on a standard
In the event that the station omits to broadcast the commercials in question under Paragraph 3D of the station contract the advertiser — not the agency — has the right to terminate the contract. Assorted warranties, indemnity agreements and cross obligations run from the advertiser and agency to CBS and vice versa.
The underlying facts in reference to the estoppel issue commence with Lennen's substantial losses in 1967, 1968 and 1969, and an acquisition in 1970 which was "disastrous" and added to its losses. From sometime in August or September, 1970, CBS knew that Lennen was in financial difficulty, was being paid by Stokely for its television advertising but was not using the payments to discharge its obligations to CBS and was behind in settling invoices of CBS. Lennen's entire outstanding balance due to CBS was never paid up at any time during the period in question. As with other agencies that had financial difficulties, CBS, as its credit manager of collections put it, "went along with the agency and extended a little more time."
CBS additionally urges, however, that Florida Citrus Commission was a client of Lennen, and when CBS pressed Lennen for payment early in 1971, the Commission asked CBS if the latter would give up the right of recourse against the Commission for advertising. Under date of March 15, 1971, CBS declined to do so. The Commission then asked CBS to send it directly the relevant invoices, which CBS did, and the Commission paid them directly to CBS. No one apparently advised Stokely of this matter. We put no weight on this, however, because the Citrus Commission may have had knowledge of Lennen's situation that Stokely did not.
For what little it may be worth, it is also urged by Stokely that when Stokely received a letter dated November 30, 1971, from a broadcasting station not connected with CBS advising that it would be held jointly liable for advertising, Stokely promptly wrote Lennen that it would "not under any conditions accept joint liability" and that Lennen was "wholly responsible for payment." Under date of December 16, 1971, Lennen wrote Stokely that it (Lennen) had "the sole responsibility for payment to media" in accordance with the "practices of the industry." We say "for what it is worth" because these are essentially statements after the fact
We come to the legal issues. The first question is whether the advertising agency, Lennen, was, in its negotiations with CBS under the contracts here involved, acting as an agent for the advertiser or as an independent contractor. If the latter, the matter ends and CBS is entitled to no recovery. The second question is whether the medium, CBS, is, by its actions of extending Lennen credit and not contacting Stokely, estopped to claim the benefits of any agency relationship, should such be found.
The first question depends on whether the action of the agency on behalf of the advertiser was either authorized or apparently authorized or was by virtue of "a power arising from the agency relation and not dependent upon authority or apparent authority." See 1 Restatement (Second) of Agency § 140 (1958).
Interestingly, under New York law, which all of the contracts here in question specifically state governs, the only case at all in point is Clarke v. Watt, 83 Misc. 404, 145 N.Y.S. 145 (Sup.Ct.App. Term, 1st Dep't 1973) (2-1 decision), where it was held that in contracting with an advertising agency a weekly paper was entitled to assume that there was a principal on whose behalf the space was being sought so that the paper could look to the advertiser for payment of the space purchased on its behalf and
As we said at the beginning, the law is curiously sparse in New York, as well as in other jurisdictions, on the subject of the advertiser-advertising agency relationship. Appellant, CBS, relies both upon H. W. Kastor & Sons Advertising Co. v. Grove Laboratories, 58 F.Supp. 1011 (E.D.Mo.1945), where in a suit to recover a commission the court said that the advertising agency generally has the legal characteristics of an agent, and Store of Happiness v. Carmona & Allen, 152 Cal.2d 266, 312 P.2d 1104 (1957). In Store of Happiness, as here, the station billed the agency for the purchase price less 15 per cent commission, and the agency billed the advertiser for the full amount; the agency was held accountable as an agent to its principal for additional amounts retained by the agency in the form of frequency discounts awarded by the station. However, in Store of Happiness the advertiser had written the advertising agent confirming an exclusive agency agreement. Here so far as appears there was no such confirmation or any written arrangement pertaining to the relationship between Stokely and Lennen. Appellant, CBS, goes so far as to say, in support of its argument that Lennen is Stokely's agent, that "CBS is without recourse to suit against Lennen on the obligations" and that its "only remedy is against the advertiser," Brief at 9, because under the general rule of law an agent cannot be sued upon the instrument itself unless there be apt personal contractual words of his own or he sign it as his own. See, e. g., Levey v. Orcurto, 73 N.Y.S.2d 202, 204-05 (Sup. Ct.N.Y.Co.1947); Keskal v. Modrakowski, 249 N.Y. 406, 408, 164 N.E. 333 (1928). CBS relies upon Marcus Loew Booking Agency v. Princess Pat, 141 F.2d 152 (7th Cir. 1944), although there the contract between the advertising agency and the medium contained no provision for payment by the agency. Here the contract expressly provides that Lennen, the agency, must pay CBS.
We are thus required to look at the general rules of agency law to determine whether there was here any express or apparent authority or "power arising from the agency relation" on the part of Lennen to bind Stokely as it purported to do on the contracts executed with CBS. We start with the assumption that a person who employs an agent normally intends that he himself shall be a party to the transaction or contract in question, and a third person dealing with the agent normally intends to contract with the principal if the latter is disclosed.
So saying, it is evident that we have to reverse Judge Wyatt to the extent that he held there was no disputed question of fact and that Lennen had no actual authority to contract with CBS to bind Stokely. Rather, we find there are disputed facts which, if found in CBS's favor, tend to show an agency relation between Stokely and Lennen and the latter's authority to bind the former to pay for advertising procured on the former's account and for its benefit. Here, for example, when media salesmen called on Stokely soliciting purchase of their particular services, Stokely would indicate that Lennen was its agency and that Lennen should be contacted. How much money was being spent on each particular network, moreover, was left entirely to the discretion of the agency and was unknown by Stokely. From the medium's point of view, it seems to appear that it generally does not sell to an agency without selling to a client; that is to say, sales of time are made only for specific advertisers and not to the agency as a broker for the medium's time. The dealings between CBS and the agency were for purposes of preparing a "package" best suited to the advertising needs of the client in terms of either prime time or daytime, depending on the client and its products to be advertised.
At the same time, particularly because this is a case for all practical purposes of first impression, we believe that we should remand for full factual findings as to the customs and usage of the trade, particularly the usages of the Madison Avenue advertising business as they existed at the time of the execution of the contracts in question,
This, of course, does not end the case, because as Judge Wyatt found below, regardless whether Stokely was responsible on the contracts, the principle of equitable estoppel comes into play. Judge Wyatt held that CBS knew at all relevant times that Stokely was paying Lennen but Lennen was not paying CBS, that Lennen had financial difficulties which increased as time went on, that CBS was extending credit on Stokely telecasts far beyond that provided in the contracts and that the creditors were meeting to see if Lennen could be saved. None of this knowledge was communicated to Stokely by CBS, which to be sure was acting in its own interest, hoping to continue receiving the benefits of advertising placed by Lennen, one of the largest agencies, which for years had given CBS major business. Judge Wyatt held that of the two innocent parties, the loss should fall on the party which knowingly took the risk of loss. He also found CBS's claim that Stokely knew of Lennen's financial position in November of 1971 to be without merit. This is true even though by November of 1971 Lennen's financial difficulties were reported, albeit ambiguously, in the advertising column in the financial section of the New York Times. Note 9, supra. During November, 1971, Stokely had paid Lennen $672,873.21, of which $37,926.15 represented payment of CBS invoices. As late as December 21, 1971, relying upon Lennen's representations of its sole liability to the media in a December 16, 1971, letter, Stokely made an additional payment to Lennen of $308,510.48, only $188.70 of which was, however, in connection with a CBS invoice. While CBS refers to these payments as naive, the fact of the matter is that CBS never took any steps whatsoever to indicate to Stokely the financial difficulty that Lennen was obviously in and of which CBS was by then clearly aware.
CBS argues that if the principle of estoppel is appropriate the most that it could apply to would be the $39,650.80 of station payments made by Stokely to Lennen in November and December of 1971 on the basis that nothing happened between July 30, 1971, and September 7, 1971, which would cause CBS to doubt Lennen's financial position and on the further basis that all network payments by Stokely to Lennen were completed by September 7, 1971, and all station payments by Stokely to Lennen were paid by June 30, 1971, with the exception of the $37,926.15 in November and $1,724.65 thereafter. But this contention ignores some of the evidence submitted in the affidavits and exhibits below. The vice president-secretary and house counsel of Lennen, for example, stated in his affidavit that he attended meetings with CBS representatives in the summer and fall of 1971 in which CBS was advised generally of Lennen's financial situation and the problems that Lennen had been experiencing for several years. This included information of losses of approximately $600,000 each in 1967 and 1968 and that Lennen had neither given nor been requested to give an audited financial report to any network creditor for three years, although that too is said to have been the general custom in the industry.
The former CBS credit manager, Louis W. Werle, testified in deposition that during various discussions in 1970 and more particularly in 1971 it was his understanding that Lennen's clients had paid them but that they "just simply had not turned over the money to CBS." Our problem is that on the basis of the conflicting affidavits it cannot be known at just what time it became clear that CBS should have spoken to or contacted Stokely directly. The determination will include resolution of when CBS became aware of Lennen's problems, an issue not suitable for summary judgment, resolution of whether CBS was reasonable to rely on its alleged belief that Stokely knew, and resolution of how long CBS acted reasonably in believing that Stokely would suffer no detriment from CBS's extending credit to Lennen.
The testimony of the former credit manager of the CBS stations division, Marvin Schrager, on deposition highlights the problem. He said, "I think early in 1971 we did get some satisfaction, some checks came in. Exactly where in the year, we actually found out that they were in serious financial difficulty, I really don't remember when it was. But up until a point we were getting some money from them." Again, "As I said before I don't remember exactly when the situation really got bad what month but of course when it did get bad then I would speak to Lou [the CBS credit manager] about it a lot."
It is true that Lennen became delinquent in the summer of 1970 and that CBS began contacting Lennen and following up the question in the fall of 1970. But Lennen was current by the end of the year 1970 or early January 1971 and was fairly current in the spring of 1971. Evidence at trial may prove that there came a time, however, perhaps as early as June, perhaps earlier, perhaps as late as August of 1971, but not later, when it appeared that Lennen was in substantial financial difficulty, and this situation was known to CBS and unknown to Stokely. It is that time at which estoppel took place. It was at that time at which CBS could not be considered to be dealing any longer with an agent for an advertiser but must be treated as dealing with a party on whom it solely relied and in whom it trusted, having in mind its own best benefit — the continuation by Lennen of the placing of advertising business with CBS. At that time CBS had a duty to advise Stokely that it would look to it for payment and it is estopped from doing so as to billings accruing thereafter.
The New York law of estoppel is that the duty to speak need not be a purely legal one, Simmons v. Westwood Apartments Co., 46 Misc.2d 1093, 261 N.Y.S.2d 736, 740 (Sup.Ct. Onondaga Co. 1965), aff'd on other grounds, 46 Misc.2d 1093, 271 N.Y.S.2d 731, appeal denied, 18 N.Y.2d 786, 275 N.Y.S.2d 271 (1966), but rather may be founded in principles of ethics and good faith: when one party in a relationship with another has an opportunity to speak in order to avoid harm or injury to the other party and fails to do so to the ultimate prejudice of the other party, he will be estopped from relying thereafter on that relationship. Cf. Armour & Co. v. Celic, 294 F.2d 432, 437-38 (2d Cir. 1961). It is immaterial to a claim of estoppel that there was no actual attempt to defraud or mislead. Rothschild v. Title Guarantee & Trust
It is important to note here, moreover, that the contracts themselves that are relied upon by appellant call for prompt payment. Paragraph 8 of the Network Television Agreements states that "Time of payment hereunder is of the essence." Paragraph 6A of the Television Stations National Sales Schedule Agreements provides that "Advertiser shall pay CBS, in accordance with such billing, within ten calendar days after receipt thereof." While the credit was normally extended to the agency, as indicated, to the end of the following month on network billings and to the end of the month after the invoice was sent on station billings of a previous month, the fact remains that CBS was extending substantial credit to Lennen over and above the ordinary anticipated times for payment. For example, on its network accounts receivable from clients represented by Lennen on which there were billings of between half a million and a million dollars a month from August to December of 1970, there were $15,000 to $20,000 that were over 90 days due. By the end of February, 1971, this overdue balance had been reduced so there was only $373 overdue. While in April there were billings in excess of $1 million, only $42,448 was 90 days overdue. From April 30, 1971, through September 30, 1971, the 90 days overdue constantly ran under $1,000, only to jump to $84,549 as of November 24, 1971, and $288,753 as of November 30, 1971.
The station accounts receivable from advertisers represented by Lennen, however, did not present such a pretty picture. From January through July, 1971, at all times the 90 days overdue accounts ran under $100,000, but for the most part over $50,000.
On combined network and station accounts it was in April, 1971, that accounts due over 90 days reached $100,000, representing a total of 10 per cent of the accounts receivable from advertisers represented by Lennen, a healthy sum to be so long overdue. From May, 1971, through July, 1971, at all times the total over 90 days accounts ran between $49,000 and $88,000.
We think that the analogy to the law of suretyship suggested by the appellee, and by implication by the court below, is quite apt: where a creditor extends the time of payment of the principal debtor, the surety may be discharged as to payments due thereafter from the principal debtor to the creditor. British Supreme Cloths, Ltd. v. Futura Fabrics Corp., 34 A.D.2d 642, 310 N.Y.S.2d 47 (1st Dep't 1970), aff'd, 28 N.Y.2d 727, 321 N.Y.S.2d 114 (1971); National Park Bank of New York v. Koehler, 204 N.Y. 174, 97 N.E. 468 (1912). See also Hall & Co. v. Continental Casualty Co., 34 App. Div.2d 1028, 310 N.Y.S.2d 950 (3d Dep't 1970). The problem is to ascertain by specific findings on the basis of evidence when an extension of credit took place that was over and above the normal amount that would in the ordinary course of events not be deemed unusual in the trade. For this purpose we cannot make a judgment on the basis of the record before us. Indeed, we think this is an issue of fact which along with the issues of CBS's and Stokely's respective knowledge as to Lennen's financial position is also in dispute and as to which summary judgment cannot accordingly be granted.
Accordingly, we remand to the district court for the purposes of determining whether there was an agency relationship and the time that estoppel took effect in accordance with this opinion.
Date of Lennen Invoice Date Amount Payment 8/31/70 $61,047. 11/30/70 9/30/70 20,340. 1/ 6/71 4/30/71 20,392. 6/30/71 6/ 1/71 37,204. 7/30/71
Date of Invoice Date Amount Payment 10/30/70 $12,070. 4/ 2/71 10/30/70 5,168. 5/10/71 12/ 5/70 12,282. 7/ 9/71 12/ 5/70 5,168. 7/ 9/71 1/ 2/71 7,140. 7/ 9/71 1/ 2/71 3,400. 3/ /71 credit issued 1/ 2/71 1,054. 3/ /71 credit issued