Errors by Phone Book Publisher

**texman** · 04-11-2009, 06:35 AM

My question involves business law in the state of: Texas

Hello, figured I would try this out.

I have a small business and in 2007 I started advertising with a phonebook publisher. I submitted my idea for the display ad in the phonebook. A proof was returned for review. I had an initial deposit of 10% of the total. I understand that the agreement stated "No oral statements of Publisher's employees wil bind Publisher." However, the Sales Rep verbally stated my ad would be "situated at the top of the page of your specific category." I started making a few monthly payments until the phone book actually came to my door (i signed up for the ad in october of 06, phonebooks are delivered in march of 07). I noticed my ad was actually on the SECOND page, the continuation of the FIRST page of my category. I called to show my disgust. Asking for at least some kind of restitution in the form of a modest discount, I thought they would surely understand. No discount was given. I immediately discontinued paying for the ad. (skip forward 6 mths) I get a call from the company, stating I am 3 months behind on payments. I again state my modest request. If I remember right, it was a months payment, or so. Again, no discount. A few weeks pass. I get a few calls again stating if I do not pay, they will have to take legal action. I tell them I highly recommend this. The next calls were from collections.

Question 1. Can I sue the Sales Rep for lack of consideration?

This is where it gets very interesting.

After only paying roughly 50% of the first years ad. I am again presented with the ability to be present in the 2008 phone book (deadline is nov 07) after a sales rep from the same company stated I could advertise. This time, proofs are reviewed a little more in depth, and we continue. Now this is where it gets odd. Instead of using my changes, they use the SAME ad as the year before. I'll save explanation. I have not paid a cent for the second year of advertisng. The main reason, is the displayed alternative phone number, is a phone number I no longer own.

I have tried to keep this short for reading purposes. Below are my ACTUAL questions. The previous was the set up to ask these questions.

On my contract with the phonebook. there is a clause above the customer signature line. "PLEASE NOTE: A COPY OF THE TERMS AND CONDITIONS IS LOCATED ON OUR WEB SITE. GO TO (website removed for privacy) AND CLICK ON "ADVERTISING CONTACT TERMS AND CONDITIONS". ACKNOWLEDGED (Customer MUST initial): _______

Question 2. If I did not initial that clause, does it release me from agreeing from the terms, even if my signiture is on the Customer Signature line?

On the 2008 (the second year) contract with the phonebook, I did not initial the same clause, however on the 2008 contract, I did not date the contract after the Customer Signature line. Without a date for the contract anywhere on the contract, does that release me from the contract? How can something which is very time sensitive (monthly payments) be held within contract if there is no initial agreement date on the contract?

Thank you for reading this, I hope it is short enough to skim over, and clear enough to get my questions answered. Please let me know if you need more information to help you help me. Thanks again.

TexMan

**Mr. Knowitall** · 04-12-2009, 06:14 PM

1. Your contract isn't with the rep. It's with the phone book publisher. If they sue you, you can countersue for... whatever damages you think you can show. Your contract may limit your ability to countersue or claim damages.

2. The provision you describe indicates your acceptance of the online terms as part of your execution of the contract. If you didn't initial, you may be able to get the court to disregard the online terms, and apply only the terms within the document itself.

**KeyWestDan** · 04-18-2009, 05:53 PM

Sorry, you have no case. You have nothing. You are screwed. The representations of the sales person are meaningless and will be meaningless in court. The only thing that matters is the binding contract.

The publisher is obligated to publish your ad, that and whatever else the contract requires. Nothing more.

If it is a secondary book, do not advertise in it. If it is the telephone company book, you have no choice. Settle with them. Tell them you will pay if they give you a one month credit or something reasonable. See what they say. Most companies want to keep a customer and will compromise. That is not to say MaBell will.