Jolovitz v. Redington & Co.

• Decision Date: 13 May 1952
• Citation: 148 Me. 23,88 A.2d 589
• Parties: JOLOVITZ v. REDINGTON & CO., Inc.
• Court: Maine Supreme Court

Page 589

88 A.2d 589

148 Me. 23

JOLOVITZ v. REDINGTON & CO., Inc.

Supreme Judicial Court of Maine.

May 13, 1952.

Jerome G. Daviau, Waterville, for plaintiff.

H. C. Marden, Waterville, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This action of assumpsit was brought by Lester T. Jolovitz as Assignee for benefit of creditors of Herman J. Mullen for the amount claimed due on a 'Stamp' contract entered into by Redington & Co., Inc. The case was heard by the presiding justice of Kennebec Superior Court without a jury. Judgment was rendered in favor of the defendant without a specific finding of facts. The case is now before the Law Court on plaintiff's exceptions. The exceptions are overruled.

The principal facts that could have been found on the evidence, by the presiding justice, are that Herman J. Mullen the assignor of the plaintiff, was engaged in a sales promotion scheme called 'Self-Defense Stamp Club' where for a cash consideration paid to Mullen by the participating store, Mullen was to install in the store, during a stated period, all necessary printed materials, and to furnish radio and newspaper advertising to enable the participating store to purchase stamps of Mullen from time to time, and to issue the stamps to customers in order to increase its sales. Prizes were to be awarded to contestants. The defendant, Redington & Co., Inc. was to pay Mullen $75 to enable it to participate, which sum was paid. The contract was to be in effect for one year commencing April 26, 1948. During this period the defendant was to give to its customers from books purchased of and supplied by Mullen, one 'Self-Defense Stamp' for each five dollar's worth of merchandise purchased. With each stamp so issued, and taken by the customer, the customer was entitled to cast five thousand votes for himself, or any other person of his choice, towards prizes to the winning contestant to be awarded by Mullen, which prizes consisted of Hudson Automobile, five piece Bedroom Suite, Electric Refrigerator, DeLuxe Model Radio, Electric Washer, etc. On the stamps were reproductions of various military insignia, and the stamps held by the participating store and given out by it, were made up into books in such a manner that the kind of insignia was concealed, until the storekeeper detached the stamp from his book. The number of duplicate stamps varied greatly. The stamps so issued by the participating store were to be purchased by the store from Mullen at the rate of ten cents for each Stamp. In addition to the '5000 vote' voting privilege to each customer with each stamp, and as part of the stamp scheme, customers received a 'stamp album' bearing on its pages facsimilies of the stamps issued and given with the $5 purchase, and prizes or awards, either in cash or U. S. Defense Stamps or Bonds, were to be given to the customer when a page, or all the pages, of the album were filled. There was evidence that it was very difficult to fill an album, or some pages of the 'album,' because the chance of ever getting all the stamps described in the 'album' was very remote. A few stamps carrying certain insignia rarely, if ever, appeared.

As one witness testified, 'if he was lucky enough to fill the pages he got money * * * it was the idea of folks trying to get money.' Another witness said: 'You would receive a certain amount depending on which page you would fill (with stamps) * * * three on page 1 $1.00 in cash. Four on page 3 would pay $2.00. Five on page 5 would give $3.00. Five on page 6 would give $4.00, and so on up to page 15, which covers 15 stamps and the amount is $30.00 in cash.'

On page 2 of one of the 'Stamp albums' introduced in evidence, the cash value is given as follows: 'We Pay You to Save Self Defence Stamps and Cash in, as follows: The three stamps listed on page 1 pay you $1.00 in Cash. The four stamps listed on page 3 pay you $2.00 in Cash. The five stamps listed on page 5 pay you $3.00 in Cash. The five stamps listed on page 6 pay you $4.00 in Cash. The five stamps listed on page 7 pay you $5.00 in Cash. The six stamps listed on page 8 pay you $6.00 in Cash. The six stamps listed on page 9 pay you $6.00 in Cash. The eight stamps listed on page 11 pay you $8.00 in Cash. The nine stamps listed on page 13 pay you $9.00 in Cash. The nine stamps listed on page 14 pay you $10.00 in Cash. The nine stamps listed on page 15 pay you $11.00 in Cash. The ten stamps listed on page 16 pay you $12.00 in Cash. The twelve stamps listed on page 17 pay you $20.00 in Cash. The fifteen stamps listed on page 19 pay you $30.00 in Cash.'

The plaintiff claimed, and offered evidence to indicate that the plaintiff's assignor, Herman J. Mullen performed all the conditions of the contract with defendant Redington & Co., Inc. but the defendant failed to perform, in that it failed to give out stamps to every customer that made a $5.00 purchase, and failed to purchase 'the first 2000 self defense stamps' and other stamps of Mullen, and failed to purchase stamps required by the amount of its sales.

The defendant contended and offered evidence to show that the stamp scheme was a lottery and that filling the 'stamp album' involved chance or gaming, and the defendant offered testimony also, from which it might be found by the Justice hearing the case, that the plaintiff's assignor failed to reasonably advertise by radio and newspaper, as required in the contract; that he failed to list the standing of contestants in the participating stores, whereby the interest in the contest was not properly promoted; and failed to furnish all the material promised; and failed to award the prizes won by certain contestants, all as required by the contract.

In answer to the contentions of the defendant, the plaintiff contended, and offered evidence to indicate that the parties did not 'consider' this scheme a lottery but a 'discount;' that filling the pages of the stamp album was only a 'minor part' of the whole scheme; that there was advertising according to contract, or there was a waiver that the defendant's complaint about tabulation and listing was waived by defendant; that 'since the defendant breached the contract first by failing to give stamps' its first breach rendered complete performance on the part of the plaintiff impossible, because Mullen was not receiving the necessary money to obtain prizes, and at the close of the contest the winners of prizes agreed to accept and did accept a cash arrangement instead of the automobile and other prizes promised.

The decision of the presiding Justice, sitting without a jury, is conclusive if there is any legal and credible evidence to justify his decision. In re Cote's Estate, 144 Me. 297, 68 A.2d 18. It is otherwise if the only inference or conclusion that can be drawn from the evidence does not support the decision. Grover, Petr. v. Grover, 143 Me. 34, 54 A.2d 637; G. A. Close Co. v. Blackwell, 124 Me. 429, 125 A. 924, or if there is no evidence to support it. Proctor v. Carey, 142 Me. 226, 49 A.2d 323.

A lottery, or scheme as defined by Revised Statutes (1944), Chapter 126, Section 18, is as follows:

'Every lottery, policy, policy lottery, policy shop, scheme, or device of chance, of whatever name or description, whether at fairs or public gatherings, or elsewhere, and whether in the interests of churches, benevolent objects, or otherwise, is prohibited; and whoever is concerned therein, directly or indirectly, by making, writing, printing, advertising, purchasing, receiving, selling, offering for sale, giving away, disposing of, or having in possession with intent to sell...