Hertz v. Montgomery Journal Pub. Co.

• Decision Date: 17 April 1913
• Citation: 62 So. 564,9 Ala.App. 178
• Parties: HERTZ v. MONTGOMERY JOURNAL PUB. CO.
• Court: Alabama Court of Appeals

62 So. 564

9 Ala.App. 178

HERTZ v. MONTGOMERY JOURNAL PUB. CO.

Court of Appeals of Alabama

April 17, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by Sophia Hertz against the Montgomery Journal Publishing Company, on the common counts and special contract. Judgment for defendant, and plaintiff appeals. Affirmed.

Letcher, McCord & Harold, of Montgomery, for appellant.

Hill, Hill & Whiting, of Montgomery, for appellee.

THOMAS J.

This record is incumbered with a large amount of unnecessary pleading. The complaint as filed by the appellant (plaintiff below) contains in all eight counts, three of which were the common counts and five of which are special counts, setting up in varying phraseology several alleged breaches of a newspaper contest conducted by the appellee, in which appellant was a contestant. All the demurrers, containing some 49 grounds, to the complaint, were overruled; whereupon the defendant filed 24 pleas, the first 2 being the general issue and the others special pleas. A large number of the latter embody substantially the same defense, and differ only in verbiage and arrangement of allegation. The plaintiff moved to strike them all, from 6 to 24 inclusive, upon five different grounds, which motion was overruled. She then demurred, assigning some 31 general grounds in all. Upon the overruling of all her demurrers, she then filed 3 special replications of confession and avoidance, to each of which a demurrer was interposed by defendant and sustained by the court. The plaintiff declining to plead further, judgment was rendered in favor of defendant. The plaintiff upon this appeal assigns 39 grounds of error--the first 18 being predicated upon the action of the lower court in overruling her motion to strike defendant's pleas, the next 18 upon its action in overruling her demurrers to defendant's pleas, and the last 3 upon its action in sustaining defendant's demurrers to her replications.

It is clear from the foregoing recital as to the condition of the pleading that if any one or more of defendant's special pleas is good, and neither one of plaintiff's special replications is a sufficient answer to it, as tested by the demurrers, the defendant was entitled to the final judgment which it obtained, since the truth of all his special pleas were confessed by plaintiff's special replications of confession and avoidance and never traversed either by a specific or general replication. Code, § 5338; 16 Ency. Pl. &amp Pr. p. 542. If, therefore, the defendant on any plea was entitled, as pointed out, to the judgment rendered, the error of the court, if any, in its rulings on the other pleadings was error without injury, and need not be considered.

There was no trial, as said, on the merits, but the salient facts are fully stated in the pleading. The basis of the action is the breach of a special contract, arising, as so appears, in the following way, to wit: The defendant, the Montgomery Journal Publishing Company, is the owner and publisher of a newspaper in the city of Montgomery, Ala., known as the Montgomery Journal, and with a view and for the purpose of increasing the subscriptions to the paper it, by an offer to the public contained in an advertisement in the columns of the paper, inaugurated, or instituted, a voting contest whereby it offered a first prize of $1,500 in cash to the woman who received the largest number of votes between the commencement and close of the contest (January 25 and March 14, 1910, respectively, being the dates fixed), and a second prize of two trips to Europe to the woman who within such time received the next largest number of votes--agreeing to allow, as the offer did, each contestant or candidate 15,000 votes for each new cash subscription for a year to the daily Montgomery Journal secured or procured by such contestant or candidate during the time.

Like a private proposal, a public proposal, as this was, is revocable, and may be withdrawn at any time before it has been accepted by something being done in reliance upon it for until acceptance it does not become a contract. 7 Am. & Eng.Ency.Law, 137-138; Cen. R.R. Co. v. Cheatham, 85 Ala. 292, 4 So. 828, 7 Am.St.Rep. 48. The plaintiff, however, alleges that she accepted the offer and proceeded under it in the work of securing subscriptions for the paper, which were turned in by her to the defendant company, whereupon, it appears, she was credited each time with, or rather received, the proper number of votes--15,000 for each of such new subscriptions so obtained. Thus the contest proceeded until about three weeks before the date, March 14th, fixed, as said, in the original offer for its close--when defendant announced in the same public manner in which the original offer had been proclaimed that from that date to the close of the contest, March 14th, each candidate or contestant would be thereafter allowed 23,000 votes for each new cash subscription for a year, instead of 15,000, as proposed in the original offer. This conduct on the part of the defendant in modifying or changing the original offer was a repudiation of it in a material particular, and clearly amounted to a breach of the contract arising under it as a result of plaintiff's previous acceptance of it. 7 Am. & Eng.Ency.Law, 149; Worthington v. McGarry, 149 Ala. 255, 42 So. 988. On the faith of that offer she had parted with a consideration, in that under it she had rendered services, not only onerous, perhaps, to herself, but valuable to the defendant, in procuring subscriptions for its paper. That offer, when stripped bare of the voting feature and analyzed, amounted to this, and nothing more: An offer by the defendant to pay $1,500 to the woman who secured the greatest number of new one-year cash subscriptions to the daily Journal within the time named, and an offer to pay the value of two trips to Europe to the woman who, within such time, secured the next greatest number. The voting feature, veiling the proposition, did not in the least alter it, except to furnish an indirect, but more interesting, method of determining the final result; for each of such subscriptions was to be counted as 15,000 votes. In the end, therefore, the one who had secured the greatest number of subscriptions had as a result the greatest number of votes, and consequently would have won the prize. The changed offer rendered it possible, however, for a contestant to win the prize who had not during the whole time of the contest secured the greatest number of subscriptions. As an illustration of the truth of this statement, let us assume that, at the time of the change or increase by defendant of the number of votes for subscriptions, the plaintiff was the leading contestant, and up to then had procured 10 subscriptions and received as a consequence 150,000 votes, and that her next highest competitor had procured up to that time 5 subscriptions and received as a consequence 75,000 votes. If the offer had remained unchanged--that is, if the number of votes for each subscription had continued the same to the close of the contest--plaintiff, without securing another subscription would have won the prize, unless her next highest competitor secured after that at least five subscriptions, or some other competitor more than five. By increasing the number of votes for each subscription from 15,000 to 23,000, however, it would have been necessary for the next highest competitor to secure only four new subscriptions in order to have votes in excess of plaintiff's--assuming that plaintiff failed in her efforts to get further subscriptions. Thus, under the changed offer, it is seen that plaintiff's competitor would have won the prize by securing only 9 subscribers during the whole time of the contest over plaintiff, who had secured 10, during such time, and who would, therefore, have been entitled to the prize under the original offer. Of course, the change still left it possible, even probable, that the contestant who, during the whole time, had gotten the greatest number of subscriptions, would win the prize; yet, as said, the other was also made possible by the change, as pointed out in the illustration. Which would happen depended upon future contingencies--the relative success of the contestants in securing subscriptions after the change. The change nevertheless amounted, as said, to a breach of the original contract with plaintiff; but of such a nature in and of itself as to require of plaintiff an election as to whether she would stand on the original offer or consent to the modification and take her chances under the new. She could not consistently and rightfully do both, because they were not separate and independent, but each was a part of the other--the latter merely a modification of the former. All votes that had been received by every contestant under the old scale were to be retained and added to...