Calhoon v. Buhre

• Decision Date: 11 November 1907
• Citation: 75 N.J.L. 439,67 A. 1068
• Parties: CALHOON v. BUHRE.
• Court: New Jersey Supreme Court

67 A. 1068

75 N.J.L. 439

CALHOON

v. BUHRE.

Supreme Court of New Jersey.

Nov. 11, 1907.

(Syllabus by the Court.)

Appeal from District Court of Atlantic City.

Action by George C. Calhoon against Charles Buhre on contract. Judgment for defendant, and plaintiff appeals. Judgment reversed, and venire de novo awarded.

Argued June term, 1907, before HENDRICKSON, PITNEY, and TRENCHARD, JJ.

H. W. Lewis, for appellant Thompson & Cole, for appellee.

TRENCHARD, J. This is an appeal from a judgment of nonsuit in the district court of Atlantic City. There is brought up, with the state of the case, a certified transcript of the judgment record in the court below, and there is thus transmitted such record to this court for review under the act (P. L. 1902, p. 565) providing for appeals from the city district courts to the Supreme Court Katzin v. Jenny (N. J. Sup.) 65 Atl. 192.

From the state of the case, it appears that the plaintiff below was the owner and publisher of the Temple Review, a newspaper; that the defendant, Charles Buhre, was the proprietor of the Hotel Westminster at Atlantic City; that his wife, F. C. Buhre, was his agent in charge of that hotel; that the agreement in question was signed in Mrs. Buhre's name by her daughter in her presence and at her request. The agreement in question is as follows: "Know all men: That the publisher of the Temple Review of the city of Philadelphia and state of Pennsylvania, is hereby authorized to insert our advertisement in the Temple Review to occupy the space of one-half page per issue for the period of three months beginning with the issue of April 20, 1906, for which we agree to pay $15 per issue in the following manner, to wit: $15 per issue to be paid in board. All board to be billed at regular rates. It is further agreed that all orders issued by the Temple Review will be honored by the Westminster Hotel, or its representatives, as United States money, which may be presented by any person or persons in payment of board. Said orders need not be presented by the publisher of the Temple Review, or any person or persons holding their order, until arrangements and rates for board have been completed, at which time it may be presented and will be honored by the proprietor, Charles Buhre of the Hotel Westminster of Atlantic City, N. J., as United States money. The entire amount of this contract may be had in board at any time the publisher of the Temple Review desires, except August, 1906. It is further agreed that no exorbitant or special price will be charged, but that the publisher of the Temple Review, or any person or persons holding an order for board signed by the publisher of the Temple Review, will receive the same concessions and rates as any guest or boarder making a cash payment or transaction. It is further agreed that at the expiration of this contract it renews itself unless notice is given in writing by the said Charles Buhre of the said Hotel Westminster and acknowledged in writing by the publisher of the Temple Review to discontinue this advertisement. Said notice of discontinuance must be received at least 10 days previous to the expiration of this contract. This contract is signed by Charles Buhre of the Hotel Westminster, Atlantic City, with the full knowledge of its contents and a clear understanding that no verbal agreement or understanding will be by the publisher the Temple Review. In witness whereof the said Charles Buhre, of the Westminster Hotel of Atlantic City, has hereunto set his hand and seal this 10th day of April, A. D. 1906. I have received a copy of the above agreement, and have no understanding, verbal or otherwise, differing from it. F. C. Buhre. [L. S.]"

Counsel for the defendant treats the action as dependent upon an instrument under seal. We think this erroneous. The state of the case shows plainly that the demand is based, not upon the terms of the agreement as an executory agreement, but upon...