26 A. 978 (N.J.Eq. 1893), Brooks v. Cooper
|Citation:||26 A. 978, 50 N.J.Eq. 761|
|Opinion Judge:||LIPPINCOTT, J.|
|Party Name:||THOMAS R. BROOKS and AARON W. HAND, trading as Brooks & Hand, appellants, v. ALFRED COOPER, respondent|
|Attorney:||Mr. James M. E. Hildreth and Mr. Herbert W. Edmunds, for the appellants. Mr. Morgan Hand, for the respondent.|
|Judge Panel:||For reversal--THE CHIEF-JUSTICE, DEPUE, DIXON, GARRISON, MAGIE, REED, ABBETT, VAN SYCKEL, LIPPINCOTT, BOGERT, BROWN, SMITH. For affirmance--None. For reversal--THE CHIEF-JUSTICE, DEPUE, DIXON, GARRISON, MAGIE, REED, ABBETT, VAN SYCKEL, LIPPINCOTT, BOGERT, BROWN, SMITH--12. For affirmance--None.|
|Case Date:||March 01, 1893|
|Court:||Supreme Court of New Jersey|
On an appeal from a decree in Cooper v. Brooks, advised by Vice-Chancellor Pitney.
[50 N.J.Eq. 762]
By an act of the legislature of this state, entitled "An act relative
to the publication of the laws of this state in the newspapers," approved May 6th, 1887 (P. L. of 1887 p. 260), it is provided in section 2:
"That the governor and comptroller shall, within ten days after this act shall become a law, and thereafter annually, within thirty days after the day fixed in January for the convening of the legislature, select and designate the newspapers to publish the laws upon the following basis: 1. To select as [50 N.J.Eq. 763] many in each county as there are representatives from that county in both branches of the legislature not exceeding six, such selection to be of an equal number of newspapers representing each of the two leading political parties, having reference also to such of them as have the larger circulation."
In 1889 a supplement to the act of 1887, above cited, was enacted, approved May 16th, 1889 (P. L. of 1889 p. 462), by which section 2 was amended to read as follows, viz.:
"That the governor, comptroller and secretary of state, or a majority of them, shall, within ten days after this shall become a law, and thereafter annually within thirty days after the day fixed in January for the convening of the legislature, select and designate the newspapers to publish the laws upon the following basis: 1. To select as many in each county as there are representatives from that county in both branches of the legislature not exceeding eight, such selection to be of an equal number of newspapers representing each of the two leading political parties, having reference also to such of them as have the larger circulation."
On March 8th, in the year 1890, the appellants and respondent entered into a written agreement as follows, viz.:
"It is hereby agreed, between Alfred Cooper, publisher of the 'Gazette,' at Cape May Court House, N. J., and Aaron W. Hand, one of the publishers of the 'Star of the Cape,' newspaper, at Cape May City, N. J., and representing his firm, that there shall be no antagonism between them in their efforts to obtain the business of the publication of the laws of the state for their respective newspapers during the present term of State Senator Walter F. Leaming, but that in case of the designation of either paper to publish the laws the net amount received for this service, after paying the expenses of the said publication, shall be equally divided between the two newspapers. It is also agreed, between the parties aforesaid, that the 'Star of the Cape' shall be designated to publish said laws for the year 1890, and that the 'Gazette' shall be designated for this purpose in the year 1891.
"Signed, ALFRED COOPER, AARON W. HAND."
By the bill, answer and proofs, it appears that in the county of Cape May there was but one member of the legislature in each branch thereof--a senator and one assemblyman--and, therefore, the governor, comptroller and secretary of state, comprising the body having the selection, could only select one newspaper [50 N.J.Eq. 764] of each of the leading political parties in the county of Cape May. It appears, after this agreement was made, the "Star of the Cape" was selected and designated as the newspaper representing one of the leading political parties, to publish the laws of this state for the year 1890, at the rates of compensation fixed for such publication. The selection and designation and rates were made and fixed under the act of 1889. It also appears that the agreement above referred to was complied with by the appellants and respondent, and the net profits of the publication for that year were divided between them.
By the bill of complaint it is alleged that, under this agreement, the appellants published the laws for the year 1890, and thereby acquired the distinction and prestige of such publication which the respondent claims is of value and benefit to the newspapers selected and the proprietors thereof, and received the compensation therefor. The expenses of the said publication for that year were submitted to the respondent and approved by him, and the one-half part of the net profits of such publication was by the appellants paid to the respondent according to the agreement.
The appellants and respondent both allege in substance that their respective newspapers had the larger circulation in the county. The respondent alleges that there was an unsettled dispute in relation to the question which had the larger circulation, the "Star of the Cape," belonging to the appellants, or the "Gazette," belonging to the respondent.
It further appears by the bill, answer and proofs that the respondent was very anxious, in accordance with the terms of the agreement, to secure for the "Gazette" the publication of the laws for the year 1891, but because of some difficulties, fancied or otherwise, which had arisen since the making of the agreement, or had existed previously between himself and some one or more members of the body empowered by law to make the selection, he became convinced that he could not succeed in having his paper selected for that purpose; and that it was further agreed, between appellants and respondent, that the respondent should make no effort to have his newspaper so selected for [50 N.J.Eq. 765] that year; that he would forego the distinction and prestige of such publication in his newspaper and make no opposition to the selection and further publication in the "Star of the Cape" of the laws of that year; and that the agreement to share the net profits of such publication was then and there expressly ratified and continued both by respondent and appellants; and that the respondent having so withdrawn his newspaper from any contest for the selection, there being no other eligible newspaper in the county, the "Star of the Cape" was again selected to publish the laws; that the appellants received compensation therefor; that the expenses of such publication were small, the profits considerable; and the respondent prays an accounting of the profits and payment to himself of his one-half part of the net profits in accordance with the agreement.
These are substantially the facts as shown by bill, answer and proofs.
The vice-chancellor, upon the pleadings and proofs, in an oral opinion, determined that the respondent was entitled to recover on the agreement; that there had been a rivalry between them, existing for years;
that the agreement of...
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