Associated Press v. WGNS, Inc.
| Decision Date | 03 March 1961 |
| Parties | ASSOCIATED PRESS v. WGNS, INCORPORATED. |
| Court | Tennessee Court of Appeals |
James W. Buckner, Murfreesboro, for plaintiff.
Granville S. R. Bouldin, Murfreesboro, for defendant.
The parties will be referred to as they appeared in the Court below.
Plaintiff, The Associated Press, brought suit in the Circuit Court of Rutherford County to recover for damages and arrearages resulting from an alleged breach of contract by defendant WGNS.
The case was heard before Honorable John D. Wiseman, Judge of the Circuit Court, without the intervention of a jury and resulted in a dismissal of plaintiff's suit.
The Associated Press is a non-profit membership corporation organized and existing under the laws of the State of New York and engages in gathering news and making it available to its members for newspaper publication and radio broadcasting.
The defendant WGNS, Inc., is a Tennessee Corporation which owns and operates a radio station at Murfreesboro, Tennessee.
On October 29, 1952, the parties entered into a written contract which obligated plaintiff to furnish teletype news service to the defendant radio station which contract, among other things, provided that plaintiff was to commence its teletype news service to the defendant on January 1, 1953, and for such service the defendant was to pay weekly assessments of $30 during the first year of the contract, $31.50 during the second year, $32.50 during the third year, $33.50 during the fourth year and $35 thereafter until the contract was terminated in accordance with its provisions.
The contract, Exhibit 1 to the testimony of Cecil Elrod, Sr., is a printed form consisting of thirteen sections, but the provision as to the amount of the weekly assessments in section 2 is typewritten, as is the beginning date of the contract and certain other incidental matters.
Section 4 of the contract was amended by adding in typewritten form sections 4a and 4b and it is these sections that form the basis of the dispute in this case.
Section 4 of the printed form, with the beginning date typed in, is as follows;
'The term of this agreement shall commence on the date the news service is made available to the Member, which shall be January 1, 1953, and, unless sooner terminated as herein provided or pursuant to the By-Laws of the Associated Press, it shall continue thereafter until terminated by the Member upon two years' notice, in writing, by registered mail to The Associated Press at New York, of the Member's election to do so.'
Before the contract was executed by the parties the defendant or its attorney or representative drafted and caused to be typewritten at the end of said printed form the two additional provisions, 4a and 4b, which are as follows;
'4a--The provisions of Clause 4 to the contrary notwithstanding, Member broadcaster agrees not to terminate the service described hereunder for five years, except for increased assessment or until January 1, 1958, but it is further understood and agreed that the service described hereunder may be terminated January 1, 1958 without further notice from the Member broadcaster.
'4b--It is further agreed this contract can be automatically terminated without further notice from Member Broadcaster January 1, 1955, but in this event Member broadcaster agrees to pay the equitable assessment $35.00 weekly the last 12 months Member receives service described hereunder.'
The parties commenced performance of this contract on January 1, 1953 and each continued performance according to its terms until January 17, 1959, or more than one year after January 1, 1958.
On January 14, 1959 defendant mailed to plaintiff the following letter;
'The Associated Press
'50 Rockefeller Plaza
'New York 20, New York
'Gentlemen:
'In reference to our contract with you for teletype machine, we notice this has expired, and, we wish, at this time, to cancel as of January 17, 1959.
'We are enclosing check for $327.15, as requested in your letter of December 23, to pay on this and the balance will be paid at an early date.
W. G. N. S., Inc.'
From this letter it is seen that defendant took the position that the contract had expired by its own terms and without prior notice although the service was continued and accepted as above outlined.
Plaintiff insisted that defendant had waived its reserved option to terminate the contract on January 1, 1958 by continuing in full performance thereof for more than a year thereafter, and that, having waived said provision or option as contained in section 4a, it was bound by the other or alternate provisions of the contract, particularly section 4, which required two years written notice of termination. Plaintiff therefore called on the defendant to pay its assessment for such service during the remaining period of the contract.
Defendant then insisted that it had a right to terminate the contract without further notice at any time after January 1, 1958, and refused to further perform. It paid its assessments in full through January 17, 1959, but refused to pay any amount thereafter.
In this situation plaintiff continued to perform the contract by delivering news through its teletype to defendant's radio station, which news was at the disposal of the defendant until June 30, 1959, or something more than five months after the defendant's alleged breach. Plaintiff then discontinued said service.
As to damages, the suit of plaintiff is for arrearages of $36.35 per week for service delivered from January 17, 1959 through June 30, 1959, or 23 3/7 weeks amounting to $851.63.
In addition, the plaintiff claims damages of $1,369.71 for the remaining 80 4/7 weeks of the two-year period claimed by it under the contract, which amount is arrived at by giving the defendant credit for $19.35 per week estimated savings after removing the teletype equipment from the defendant's premises, thus leaving a balance of $17 a week from July 1, 1959 through January 14, 1961, or the remainder of the two years after notice as required under section 4.
Thus, plaintiff's suit is for a total of $2,221.34 as arrearages and damages.
It was stipulated by the parties that the only issues in controversy in this case are as follows;
'1. Was the defendant's notice, dated January 14, 1959, of its intention to terminate the contract (Exhibit A to the Declaration) as of January 17, 1959, and its actual termination on said latter date, authorized by and permissible under section 4a and 4b of the contract, or did same constitute a breach of section 4 of the contract?
The trial Judge after hearing the evidence and arguments of counsel filed a memorandum opinion which is made a part of the record. In said opinion, after reviewing portions of the evidence and certain pertinent sections of the contract, the Court concluded, in part as follows;
'* * * The Associated Press (insists) that the contract could not be terminated except by giving two years' notice as provided for under Section 4 of the contract. WGNS insists that it had the right to thus terminate the contract after the lapse of five years. This is the issue to be settled in this suit. * * *
* * *'
Plaintiff below, The Associated Press, perfected its appeal and has filed five assignments of error.
It will not be necessary to consider each assignment separately. In the aggregate they simply complain of the interpretation given the contract by the trial Judge and assert that it was error for the Court to fail and refuse to enforce the clear and unambiguous provisions of section 4 of the contract by requiring the defendant to give two years written notice of its intention to terminate, and that the Court was in error in admitting the oral testimony of witnesses Cecil Elrod, Sr. and Cecil Elrod, Jr. as to the intention of the parties at the time they signed the contract.
It is the defendant's position that it was the intention of the parties that defendant would bind itself for only five years and that,...
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