Harlow v. Oregonian Pub. Co.

• Decision Date: 09 March 1909
• Citation: 100 P. 7,53 Or. 272
• Parties: HARLOW et al. v. OREGONIAN PUB. CO. et al.
• Court: Oregon Supreme Court

100 P. 7

53 Or. 272

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

Supreme Court of Oregon

March 9, 1909

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by F.E. & L.A. Harlow against the Oregonian Publishing Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

This is an action for damages for an alleged violation of a contract originally entered into between Pittock, as owner of the Daily Morning Oregonian, and Myron M. Southworth, which contract was by mesne assignments transferred to plaintiffs and is as follows: "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 $5.00 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; 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 of 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. Henry L. Pittock. Myron M. Southworth." The breach complained of relates to the last paragraph of the agreement, in respect to which it is averred that defendants, after having declared the contract at an end, refused to submit the matters arising out of the contract and dissolution thereof to arbitration. The cause was tried before a jury, resulting in a judgment against defendants and in favor of plaintiffs in the sum of $5,000, from which defendants appeal, urging as error the action of the trial court in refusing to strike out all of plaintiffs' testimony, the denial of defendants' motion for nonsuit, and the refusal, on defendants' request, to direct a verdict in their favor.

John M. Gearin, for appellants.

W.D. Fenton, for respondents.

KING J. (after stating the facts as above).

The first point presented for consideration is whether plaintiffs have in law succeeded to all the rights and interests of Southworth under the agreement quoted, and are thereby placed in all respects in the position formerly occupied by him. It appears to be well settled that where, as in this case, the contract is for personal services, requiring a high degree of trust and confidence, without a definite limitation as to time, and free from any declaration therein to the effect that its terms shall be binding upon the heirs and assigns of the contracting parties, such agreement is not assignable by one of the parties thereto without the consent of the other, and without such consent creates no estate which can be devised or descend to the heirs of either of the parties. Corwin v. Hood, 58 N.H. 402; Dickinson v. Callahan's Adm'rs, 19 Pa. 227; Howe Sewing Machine Co. v. Rosensteel (C.C.) 24 F. 583. This rule, however, is limited to such cases as where the exceptions mentioned do not appear. Under the facts presented, it is unnecessary to determine whether the memorandum of agreement before us contains within itself terms providing for the power to assign, etc., for it is unquestionably the law that, even though the instrument within itself does not provide that it shall bind the heirs and assigns of the parties thereto, if it has been recognized and acted upon by the parties interested, the objection that no provision is made therein for its assignment or transfer is untenable. The benefits cannot knowingly, or with implied knowledge thereof, be received without the recipient assuming the burdens which may accompany them. Page, Contracts, §§ 73, 1262; 9 Cyc. 387; McLeod v. Despain, 49 Or. 536, 563, 90 P. 492, 92 P. 1088; Nave v. Sturges, 5 Mo.App. 557; Bailey v. Rutjes, 86 N.C. 517; Stucky v. Hardy, 15 Ind.App. 19, 41 N.E. 606; Weatherhogg v. Board of Com'rs, 158 Ind. 14, 62 N.E. 477; Staples v. Somerville, 176 Mass. 237, 57 N.E. 380; Freedman's Savings Bank v. Shepherd, 127 U.S. 494, 8 Supp.Ct. 1250, 32 L.Ed. 163; Atlanta Buggy Co. v. Hess Spring Co., 124 Ga. 338, 52 S.E. 613, 4 L.R.A. (N.S.) 431. Nor can it be seriously questioned that where the language of the contract, like the one under consideration, is ambiguous, the terms thereof may be explained by extrinsic evidence, in which event the intention of the parties to regard the contract as assignable may be implied from their conduct with reference to and acquiescence in its terms. Page, Contracts, § 1126. In such cases the practical interpretation as applied to the instrument under investigation by the parties may be taken into consideration to determine their intention. Topliff v. Topliff, 122 U.S. 121, 131, 7 Sup.Ct. 1057, 30 L.Ed. 1110; Knopf v. Richmond, F. & P.R.R. Co., 85 Va. 769, 8 S.E. 787; Heatherly v. Bank, 31 W.Va. 70, 77, 5 S.E. 754; City of Cleveland v. Cleveland, C., C. & St. L. Ry. Co. (C.C.) 93 F. 113, 117; Latemser v. Misner, 56 Neb. 340, 76 N.W. 897; Fitzgerald v. First Nat. Bank, 114 F. 474, 52 C.C.A. 276.

But it is argued that defendants during the many years of business dealings respecting the Oregonian with Southworth's successors in interest had no knowledge or notice of any of the assignments under which plaintiffs and their assignors were operating, and through which the plaintiffs asserted and now assert, their claims, in which respect it is insisted there is a total failure of proof. We cannot accede to this view. It is disclosed by the record, as in effect detailed by Mr. Justice Bean in Harlow v. Oregonian Publishing Co., 45 Or. 522, 78 P. 737, that Southworth entered upon the performance of his contract, complying with its terms until May 25, 1865, when he transferred his interest to Ballard and Sappington, who, three years later, assigned to John Harlow, and he, in turn, carried out the contract, complying with all its terms until his death in 1882, when he bequeathed all of his interest therein to his son, F.E. Harlow, who in September, 1898, sold an undivided one-third interest therein to his coplaintiff. During this period the Oregonian Publishing Company succeeded to the rights of...