The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff American Broadcasting Companies, Inc. ("ABC" or
"WLS-TV")*fn1 sues Climate Control Corporation ("Climate
Control") to recover the cost of certain advertising time.
Both parties have moved for summary judgment. For the reasons
stated in this memorandum opinion and order both motions are
Climate Control is a local distributor for a national air
conditioning firm. In the spring of 1978 Climate Control
(which had done virtually no television advertising) decided
to run a commercial on local Chicago television stations.
Because it understood media representatives would not deal
directly with advertisers, so that it could not purchase air
time itself, Climate Control secured the services of an
advertising agency, Sander Rodkin/Hechtman/Glantz Advertising,
Ltd. ("Sander Rodkin"). Sander Rodkin recommended both the ABC
and CBS stations and June and July 1978 dates for running the
Sander Rodkin never discussed the terms of the billings with
Climate Control except to say that Sander Rodkin would bill
Climate Control, pay the media and receive a commission from
the media. Sander Rodkin told Climate Control that was
standard procedure in the advertising industry.
Unfortunately Sander Rodkin was in financial distress.
Although it received full payment from Climate Control
promptly after each billing, it was slow in honoring its
billings from WLS-TV. Moreover it did not designate the checks
it did remit to WLS-TV to reflect that they should be applied
to the invoices covering Climate Control commercials (some
checks designated other accounts, while others bore no
designation at all).
ABC and Climate Control were never in communication as to
purchase of the air time, which was accomplished by
negotiations between representatives of Sander Rodkin and
WLS-TV. Indeed Climate Control never saw the contract, which
was WLS-TV's printed form filled in by WLS-TV. Although WLS-TV
listed the "Advertiser" as "Climatrol, Inc." (sic), no
employee of Climate Control negotiated or signed the contract.
Instead the contract form, addressed by WLS-TV to Sander
Rodkin as the buying agency, was accepted "for Agency and/or
Advertiser" (again WLS-TV's form designation) by Debbie
Wright, a Sander Rodkin employee.
Thus the first question involved in this action is whether
Sander Rodkin was an agent for Climate Control with the power
to bind it to a contract to pay for the purchase of advertising
time.*fn4 If Sander Rodkin were indeed such an agent, Climate
Control, as a disclosed principal, is bound by the contract to
pay. But if Sander Rodkin were an independent contractor and
not Climate Control's agent for that purpose, WLS-TV has no
remedy against Climate.*fn5
Thus the undisputed facts must be sufficient to answer two
questions if summary judgment is to be entered:
(1) Was Sander Rodkin Climate Control's agent?
(2) If there were an agency relationship, did
it encompass the power to bind Climate Control to
Viewed in those terms, most of the parties' arguments on this
motion have been misdirected.*fn6
Agency is a "voluntary relationship . . . that . . . cannot
exist without the consent of both the principal and the
agent." 1 I.L.P. Agency § 4. It is the principal who
voluntarily empowers an agent to bind him to contracts with
third parties. 1 I.L.P. Agency § 12. Thus the considerations
relevant to determining whether Sander Rodkin was Climate
Control's agent are factors relating to ...