The opinion of the court was delivered by: CLARY
The plaintiff, an advertising agency, brought this action on 9 separate claims against the defendant, a chain saw and small tractor manufacturer, for advertising services rendered in the amount of $ 4,213.04. The defendant in its answer denied liability on all 9 claims and counterclaimed against the plaintiff in the amount of $ 3,919, alleging late delivery and poor quality of a sales presentation manual, one of the items in dispute in this action. Specifically the defendant alleged that the failure to have this sales book for the Fall 1955 selling season caused a decline of its sales and the resultant loss.
The case was tried to the Court without a jury. From the pleadings and proof the Court makes the following
1. Plaintiff is an incorporated advertising agency organized and existing under the laws of the State of Delaware, with its principal office at 160 North Fifteenth Street, Philadelphia, Pennsylvania.
2. Defendant is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office at Coatesville, Pennsylvania. It is engaged in the manufacture of chain saws, tractors and other small, powered equipment.
3. The sum of the matters in controversy exceeds $ 3,000 exclusive of interest and costs.
5. The supplemental letter forming part of the written agreement contains the following paragraphs:
'1. No project or job on which normal charges are involved will be started without an estimate of costs for preparation (copy, layout, service) and/or production (art, engraving, typography, paste-up, processing, etc.); such estimates are to be approved by authorized client personnel in writing by issuance of L-M Manufacturing Co., Inc., purchase order. This includes costs for production of advertisements as well as collateral material.
'The above does not include development of plans, promotions, schedules, costs, etc. -- for which no charge is normally made by the agency.'
'2. Costs for job preparation (copy, layout, service) above are subject to revision or rejection if not acceptable, at no cost. If, however, they have been considered acceptable but their further development or use is unduly delayed or cancelled due to circumstances over which the agency has no control, such jobs will be billed and paid for according to approved estimates.'
6. From on or about May 10, 1955 to October 5, 1955, the plaintiff did not carry out its duty under the provision of the contract requiring the submission of an estimate of costs and approval by the L-M Manufacturing Co., Inc. of said estimate before a project or job would be started. Defendant consented to this practice during the said period.
7. The contract between the parties does not provide for specific sums of money to be paid to the plaintiff for any of the work for which recovery is sought in this action.
8. On or about May 10, 1955, the defendant requested the plaintiff to design and develop a sales presentation book to be used by defendant's sales representatives when contacting distributors and dealers in connection with chain saws manufactured by defendant.
9. Plaintiff created and developed both copy and layout for such a sales book and presented it to the defendant on July 28, 1955. The defendant requested changes in this material. The plaintiff made such changes and resubmitted the material to the defendant on September 6, 1955.
10. Defendant accepted this material and kept it without making any complaint as to its content or without requesting that the agency further revise or develop it.
11. Further development or use of this book was prevented by circumstances over which the plaintiff had no control, to wit: the failure of the defendant to develop a time payment plan which defendant wished included in the book.
12. The fair and reasonable value of plaintiff's services in the development of this sales presentation book was $ 1,458.
13. On or about May 16, 1955, defendant requested plaintiff to design and develop a publicity kit to be sent by defendant to new dealers who were about to feature the chain saws manufactured by defendant, which kit would contain material and directions to assist dealers in advertising the fact that they sold the said chain saws.
14. No estimate of the costs of this job was submitted to the defendant.
15. Plaintiff created and developed the publicity jacket and delivered this material in copy and layout form to the defendant on June 28, 1955.
16. Defendant accepted this material and kept it without making any complaint or request that the agency further revise or develop it.
18. The fair and reasonable value of plaintiff's services in designing and developing the publicity jacket was $ 63.
19. On or about May 16, 1955, defendant, acting through Leonard M. Strunk, requested plaintiff to develop a publicity jacket to be used by the defendant to enclose and send to retail distributors of defendant's chain saws, preprints of advertisements of said saws which were to appear in various publications circulated in the sales areas of such dealers.
20. No estimate of the costs of this job was submitted to the defendant.
21. Plaintiff created and developed the preprint jacket in copy and layout form and delivered this material to the defendant on July 28, 1955.
22. Defendant accepted the preprint jacket and kept it without making any complaint or request that the agency further revise or develop it.
23. Further development or use of this preprint jacket was prevented by circumstances over which the plaintiff had no control, to wit: the indecisiveness of Mr. Strunk in preparing his advertising program which prevented the preparing and mailing of preprints to dealers.
24. The fair and reasonable value of the plaintiff's services in the creation and development of the preprint jacket was $ 146.44.
25. On or about June 13, 1955, defendant, acting through Leonard M. Strunk, requested plaintiff to develop an advertisement of defendant's 'Chipmunk' tractor to be placed in the garden section of Sunday newspapers.
26. No estimate of the costs of this job was submitted to the defendant.
27. Plaintiff did all the work necessary for the design and development of the newspaper advertisement and delivered it in copy and layout form to the defendant on June 28, 1955.
28. Defendant accepted the advertisement and kept it without any complaint or request that the agency ...