Butler v. Mall & Express Pub. Co.

• Decision Date: 13 May 1902
• Parties: BUTLER v. MALL & EXPRESS PUB. CO.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 208

63 N.E. 951

BUTLER

v.MALL & EXPRESS PUB. CO.

Court of Appeals of New York.

May 13, 1902.

Appeal from supreme court, appellate division, First department.

Action by Charles Henry Butler against the Mail & Express Publishing Company. From a judgment of the appellate division (66 N. Y. Supp. 788), affirming a judgment for plaintiff, defendant appeals. Reversed.

William Irwin, for appellant.

John M. Gardner, for respondent.

CULLEN, J.

The complaint alleges that on 29 different occasions the defendant, in consideration of $100 paid to it by the plaintiff, agreed to give him a hundred dollars worth of advertising in a paper published in New York City known as the ‘Mail and Express'; that the defendant thereafter refused to do any advertising for the plaintiff or to return to him the money so paid; and judgment was demanded for the recovery of the sum of $2,900, with interest. The defendant answered, alleging that the sums paid by the plaintiff were paid, not in consideration of advertising thereafter to be furnished, but in satisfaction of a judgment that the defendant had recovered against the plaintiff. It appears that in July, 1892, the defendant obtained by default a judgment in the supreme court against the plaintiff and another for the sum of $6,319.15. This judgment was vacated on the consent of the parties, but no answer was interposed by the defendants in that suit. Stipulations were made giving those defendants time for the payment of the claim. Default, however, was made in the stipulated payments, and in July, 1895, the present defendant obtained an order re-entering and reinstating the judgment of July, 1892. In August, 1895, the present defendant threatened to enforce its judgment, and thereupon the plaintiff gave the defendant a series of checks bearing different dates, each for the sum of $100, and amounting in the aggregate to the sum remaining unpaid on the defendant's claim. As each check was paid the defendant gave the plaintiff a receipt for the sum of $100 as having been paid on account of its judgment, and also a writing that the plaintiff had credit with the Mail and Express for a hundred dollars, to be applied to advertising as per agreement. The original contract between the plaintiff and the defendant, out of which the liability from the former to the latter accrued, does not appear in the case. It seems, however, that the defendant was willing that the plaintiff should recoup his losses on that contract by giving him advertising space in the newspaper. When the last of the checks was paid in May, 1896, 1899 the defendant sold out its newspaper, and thereafter the plaintiff demanded the advertising specified in the writings or duebills, which the defendant on account of such sale refused to furnish. At the close of the evidence the defendant moved to dismiss the complaint on the ground that the alleged agreement to give the plaintiff advertising space was without...