Hicks Pub. Co. v. Wis. Cent. Ry. Co.

• Decision Date: 30 March 1909
• Citation: 120 N.W. 512,138 Wis. 584
• Parties: HICKS PUB. CO. v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

138 Wis. 584

120 N.W. 512

HICKS PUB. CO.

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

March 30, 1909.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by the Hicks Publishing Company against the Wisconsin Central Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The plaintiff publishes a newspaper at Oshkosh, Wis., and the defendant is a railway company. For several years preceding 1906 the plaintiff did advertising for the defendant, which was paid for in transportation. The advertising in a general way consisted of publishing time cards and such announcements as the railway company desired to make. In December, 1905, the defendant forwarded to the plaintiff written duplicate unsigned contracts for execution intended to cover the year 1906. Certain changes were made therein by plaintiff, and the contracts as changed were delivered to the agent of the defendant, and were forwarded to it for signature, and were signed by the defendant as amended, and one of the duplicates was returned to the plaintiff. The 1906 contract as amended was different in one particular, which will be referred to in the opinion, from the prior contracts made between the parties. Apparently about November, 1906, transportation had been furnished the plaintiff to the amount provided for in the contract. On November 8, 1906, the plaintiff wrote the defendant that it would very much like to increase the contract to the amount of $50. As a result of such request, a supplementary contract was then made between the parties, reading as follows: “The undersigned hereby agree that, on account of additional space required by the Wisconsin Central Railway Company for reading notices and display advertisements during the year 1906, the amount of contract appended hereto is hereby amended and increased to provide for the payment by the Wisconsin Central Railway to the publisher, whose signature appears below, of transportation to the amount of $50 in addition to amount called for in original contract.” The plaintiff offered proof on the trial tending to show that the advertising done by it for the defendant for the year 1906 at its regular rates of charge amounted to $1,612.90, and the referee and the court found the fact to be in accordance with this testimony. The plaintiff brought suit on quantum meruit to recover the alleged balance due it for advertising over and above the amount provided for in the original and supplementary contracts, to wit, the sum of $450. Plaintiff was awarded judgment in the sum of $1,162.90, together with interest thereon to January 1, 1907. From such judgment this appeal is taken. The appellant insists that the court erred (1) in the construction placed upon the original contract; and (2) in failing to find that the supplementary contract constituted an accord and satisfaction of the claim upon which suit is brought.Walter D. Corrigan, W. A. Hayes, and Clifton Williams, for appellant.

Hume & Oellerich, for respondent.

BARNES, J. (after stating the facts as above).

The contract involved on this appeal stated in precise terms that it commenced January 1, 1906, and terminated December 31, 1906. The principal controversy arises over the meaning of the following paragraph in the contract: “Party of the second part, hereby agrees to publish in the aforesaid publication during the life of this contract, advertising in the form of Time Cards, Display or Readers, as may be furnished from time to time, necessary and desirable changes in said advertisements to be made on the request of and without expense to the party of the first part, and to be charged at regular rates to the amount of $400.00. In full consideration of the above advertising, party of the first part agrees to issue in payment $400.00 worth of transportation. * * *” The plaintiff contends that the contract covered advertising to be charged for at regular rates to the amount of $400 only, and that it is entitled to recover on quantum meruit for all advertising done during the life of the contract in excess of such amount. The defendant claims that transportation furnished to the amount of $400 was in full payment of all advertising of the character specified during the term covered by the contract, and that the clause, “to be charged at regular rates to the amount of $400,” is a mere designation of the value of the consideration passing from each to the other. The plaintiff agreed to publish during the life of the contract--that is, from January 1, 1906, to December 31, 1906--advertising matter as the same might be furnished. This undertaking seems to be absolute, so that the advertising done was covered by the written contract. The phrase, “to be charged at regular rates to the amount of $400,” does not obviate the agreement on the part of the publisher to publish the advertisements furnished during the year 1906. It does leave the contract ambiguous as to whether the publisher might charge for advertising done in excess of the $400. But the next sentence in the contract contains the following provision: “In full consideration of the above advertising, party of the first part agrees to issue in payment $400 worth of transportation.” So we have the anomalous situation of the plaintiff agreeing to publish during the year 1906 such “time cards” and “readers” as might be furnished by the railway company, and to receive in payment for such service $400 worth of transportation, coupled with a provision that the advertising matter furnished was to be “charged at regular rates to the amount of $400.” There is no claim that any advertising was done during the year that did not fall within the designation of “time cards, display, or readers” mentioned in the contract.

Obviously there is an ambiguity on the face of the contract, because it is not clear from its terms whether the advertising done in excess of $400 is to be paid for by the defendant otherwise than in transportation, or whether the $400 in transportation is intended to cover all advertising done regardless of its value. Recurring to extraneous matters de hors the contract, we are not greatly aided in arriving at a true construction of the instrument. The parties had been doing business for several years, but none of their contracts prior to the one we are considering contained the clause, “to be charged at regular rates to the amount of $400.” This clause is meaningless if the defendant's construction of the document is adopted, and it is only fair to assume that the parties meant something when they inserted it in their contract for 1906. The fact of its insertion strongly tends to support plaintiff's construction. This view gains additional support from the fact that the clause we are considering was written into the printed form of contract furnished by the defendant. It is a canon of construction that where a contract “is written in part and printed in part, as where it has been filled in upon a printed form, the parties usually pay much more attention to the written parts than to the printed parts. Accordingly, if the written provisions cannot be reconciled with the printed, the written provisions control.” Page on...