Harlow v. Oregonian Pub. Co.

• Decision Date: 05 December 1904
• Citation: 78 P. 737,45 Or. 520
• Parties: HARLOW et al. v. OREGONIAN PUB. CO. et al.
• Court: Oregon Supreme Court

78 P. 737

45 Or. 520

HARLOW et al. v. OREGONIAN PUB. CO. et al.

Supreme Court of Oregon

December 5, 1904

Appeal from Circuit Court, Multnomah County; John B. Cleland, M.C George, and Alfred F. Sears, Judges.

Suit by F.E. Harlow and another against the Oregonian Publishing Company and another. From a decree in favor of defendants complainants appeal. Affirmed.

On April 11, 1864, the defendant Pittock, at that time the owner and proprietor of the Daily Morning Oregonian, entered into the following written contract with one Myron M. Southworth:

"A memorandum of an agreement made this 11th day of April A.D.1864, between Henry L. Pittock, of the City of Portland, Oregon, and Myron M. Southworth, of the same place, that the said Henry L. Pittock has for the sum of $350 to be paid in weekly installments of $5 each, sold and transferred to the said Myron M. Southworth the sole right and privilege to carry and collect subscriptions for the Daily Morning Oregonian newspaper in all that portion of said city south of Alder street; that the said Myron M Southworth is to have one-third of the subscription price of the said newspaper for his labor, with the privilege of selling his interest therein to a suitable party, and cannot otherwise be deprived of the advantages and benefits of this contract, although the said newspaper may change hands, unless he willfully neglects or refuses to fulfill his portion of said contract, and that said Myron M Southworth agrees to carry faithfully and carefully the said newspaper to every paying subscriber in said district for the above-named compensation, to endeavor to increase its circulation on all occasions, to procure as much advertising patronage for it as possible without any percentage, to enter into no contract with any other newspaper published in this city without permission from the proprietor of said newspaper, to be responsible and pay weekly for all papers taken from the office and to comply with all rules and regulations not directly contrary to the above agreement, the proprietor may from time to time, as he thinks proper, to adopt for the benefit of said newspaper. It is also agreed that in case either party considers separation necessary and both cannot agree upon a proper method of doing so, each shall appoint a man to act for him; if they cannot agree they shall have power to call on a third man whose decision shall be binding. The said M.M. Southworth binds himself to carry the said paper for 12 1/2 cents for each subscriber weekly, whether the subscription price be raised or not. [Signed] Henry L. Pittock. [Signed] Myron M. Southworth."

Southworth carried and delivered the paper, collected subscriptions, and otherwise fulfilled the obligations of his contract, until May 25, 1865, when he sold and assigned his interest therein to Ballard & Sappington. They performed the contract for some time, and then sold to other parties; and thus, through successive sales and purchases, it came to John Harlow in 1868. Harlow in turn carried out the contract, complying with all its terms, until his death, in 1882, when he bequeathed it to his son, the plaintiff F.E. Harlow. On the 27th of September, 1898, F.E. Harlow sold to his coplaintiff an undivided one-third interest therein. In February, 1873, the Oregonian Publishing Company succeeded to the rights of Pittock in the newspaper. During the period from the date of the Southworth contract, in 1864, until September 18, 1901, with the knowledge, consent, and acquiescence of the defendants, Southworth and his various assignees, including the plaintiffs and their father, delivered the paper and collected subscriptions in all that portion of the city of Portland south of Alder street. On September 18, 1901, the defendant publishing company notified the plaintiffs, in writing, that it had decided to confine their operations under the Southworth contract to the territory north of Alder street, which was embraced within the corporate limits of Portland at the time the contract was made in April, 1864, and that on and after November 4th following it would place other carriers in the territory theretofore covered by plaintiffs, but which was not included within such boundaries. This suit was thereupon immediately commenced by plaintiffs to enjoin and restrain defendants from refusing to furnish them papers to deliver to subscribers residing south of Alder street, but outside the boundaries of the city as they existed in 1864, and also to enjoin and restrain defendants from undertaking on their own behalf to deliver papers or collect subscriptions in the disputed territory, on the ground that such territory was embraced within the terms of the Southworth contract. A demurrer to the complaint was overruled, and defendants answered. On April 1, 1902, but before the trial, the defendant publishing company served written notice on the plaintiffs that on and after June 7, 1902, it would cease to sell or deliver the Morning Oregonian to them or their agents or representatives for delivery to subscribers within that part of the city south of Alder street, and that it would, from and after the date mentioned, deliver or cause the papers to be delivered to subscribers residing within such territory. The plaintiffs thereupon filed a supplemental complaint, setting out the repudiation and threatened breach of the contract by the defendants, and praying for an injunction restraining them from refusing to comply with the Southworth contract, and from delivering papers or causing them to be delivered to subscribers residing within the district covered by such contract. A demurrer to the supplemental complaint was overruled. Defendants answered, admitting the service of the notice, and that it claimed the contract to be void, but denying the other allegations therein. The cause was tried upon the pleadings and evidence, and a decree entered dismissing the suit, from which the plaintiffs appeal.

W.W. Cotton, for appellants.

Rufus Mallory, for respondents.

BEAN, J. (after stating the facts).

Assuming for the purposes of the opinion, that the plaintiffs have legally succeeded to the rights of Southworth under the original contract, and stand in his place and stead, entitled to all the rights and privileges given him by its terms, and that it embraces all the territory claimed by them, there are two reasons why this suit could not be maintained after the repudiation of the entire contract by the defendants, and the service on the plaintiffs of notice to that effect in June, 1902: First, the plaintiffs, if they are entitled to any relief at all, have a full and complete remedy at law; and, second, the remedy by injunction or specific performance is not mutual. It could not be invoked by the defendants against the plaintiffs, as the contract is not, and never was, capable of being specifically enforced or enjoined at the suit of Pittock or the defendant publishing company. The contract between Pittock and Southworth created substantially the relation of employer and employýe, and this relation continued as to those who succeeded to Southworth's interest. By its terms, Southworth (whom we shall hereafter assume includes parties who have legally succeeded to his rights), was to carry and deliver the paper to all paying subscribers within the designated territory, to endeavor to increase its circulation, to collect subscriptions therefor, and to pay weekly for all papers he took from the office, receiving as a compensation for "his labor" a certain proportion of the...