Handy v. St. Paul Globe Publ'g Co.
| Decision Date | 08 July 1889 |
| Citation | 42 N.W. 872,41 Minn. 188 |
| Parties | HANDY v ST. PAUL GLOBE PUBLISHING CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. Though it is sometimes necessary to plead the facts on which the illegality of a contract or transaction may depend, it is never necessary to plead the law. Whenever the fact appears, the parties may insist on the law applicable to it.
2. A contract by which plaintiff was to have full charge and control of the real-estate advertising business in the daily, Sunday, and weekly editions of a newspaper, the owner to receive certain rates, the plaintiff to have all above those rates that he might receive for advertising, the contract to continue for five years, held to be an entire and indivisible contract, so that any taint of illegality in it avoids the whole.
3. Under section 20, c. 100, Gen. St. 1878, the issuing, publishing, and circulating a newspaper on Sunday was unlawful. It was not a work of necessity or charity.
4. A contract, void because it stipulates for the doing what is forbidden by law at the time when it is to be done, cannot be ratified, even at a time when, owing to a change in the law, it would be lawful to do the thing.
5. An entire contract cannot be ratified in part.
Appeal from district court, Ramsey county; KELLY, Judge.
Flandrau, Squires & Cutcheon, for appellant.
H. J. Horn and C. D. O'Brien, for respondent.
The action is upon a contract pleaded in the complaint, not in h•c verba, but according to its supposed effect. The answer denied it; and, on the trial, the plaintiff offered in evidence a written contract between the parties, the provisions of which material to this controversy were as follows: The plaintiff, in consideration of being allowed the difference between the rates he might charge for advertising in the various issues of the St. Paul Globe newspaper and the rates thereinafter mentioned, agreed and contracted to take entire charge and control of the real-estate advertising business in the daily and Sunday and weekly Globe, and the defendant agreed, in consideration of such services, to put under his full charge and control all real-estate advertising business of defendant in the daily and Sunday and weekly Globe. The plaintiff agreed to pay the defendant certain specified rates for said real-estate advertising, and the defendant agreed to receive said rates as full payment for all said real-estate advertisements which might appear in the daily, weekly, or Sunday Globe, without regard to the amount plaintiff might charge and receive from advertisers. The contract was to continue for the term of five years, with the option in plaintiff to renew it for another term of five years, or for a shorter time; he to have the right to annul the agreement on giving 30 days' notice of his intention to do so. It was admitted by plaintiff, at the time of making the offer of this contract, that the Sunday Globe referred to in the contract was issued, published, and circulated on Sundays, though set up and printed on Saturdays. The contract was objected to as void upon its face for want of mutuality, and as being against public policy; and it appears to have been argued that it was against public policy because it was an agreement for a violation of the law in regard to Sunday. The court below sustained the objection. The plaintiff, of course, failed in his action, and he appeals from an order denying his motion for a new trial. The same objections are made to the contract here as were made below. The plaintiff contends that, not having pleaded the illegality of the contract, defendant could not assert it on the trial.
It is sometimes necessary to plead the facts upon which the illegality of a contract or transaction depends, but it is never necessary to plead the law. When the facts appear, either upon the pleadings or proofs, either party may insist upon the law applicable to such facts. In this case the plaintiff had, under the pleadings, to prove the contract upon which he sued. If it be void on its face he, not the defendant, showed its illegality. Though the contract appears in some respects a much more favorable one to the plaintiff than to the defendant, it is not wanting in mutuality of promises and engagements, so as to be without mutual considerations. What plaintiff is to do appears by implication rather than by express terms. Fairly construed, the contract created the...
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