King Features Syndicate v. Cape Cod Broadcasting Co.

• Citation: 59 N.E.2d 481,317 Mass. 652
• Parties: KING FEATURES SYNDICATE, INC. v. CAPE COD BROADCASTING CO. INC.
• Decision Date: 06 February 1945
• Court: United States State Supreme Judicial Court of Massachusetts

317 Mass. 652

59 N.E.2d 481

KING FEATURES SYNDICATE, INC. v. CAPE COD BROADCASTING CO. INC.

Supreme Judicial Court of Massachusetts, Barnstable.

February 6, 1945

January 5, 1945.

Present: FIELD, C.

J., LUMMUS, QUA WILKINS, & SPALDING, JJ.

Contract Construction. Practice, Civil, Case stated, Appeal. Damages Nominal.

A "statement of agreed facts" containing a letter which "may be submitted in evidence," a computation which "may be considered by the court," and a summary of lost profits as to which the "plaintiff will testify," was merely an agreement as to evidence and was not a case stated. Whether an order for judgment in an action at law based solely on a

"statement of agreed facts" constituting merely an agreement as to evidence, not a case stated, was warranted by the evidence was a

"matter of law apparent on the record" within G. L. (Ter. Ed.) c.231, Section 96, and an appeal lay from such order.

A contract dated March 13, 1942, for the sale of news reports by a news service to a radio broadcasting company, containing a provision that it should continue for five years from October 1, 1942, and thereafter for further periods of five years until a certain termination notice should be given, and also containing a provision that it should "become effective" upon thirty days notice given by the broadcasting company "at any date prior to" October 1, 1942, took effect in any event on October

1, 1942; the thirty day provision was merely an option allowing the broadcasting company to make it effective at an earlier date.

An order for judgment for the defendant in an action at law for breach of contract must be reversed where it was established only that on a proper construction of the parties' contract there had been a breach by the defendant, since the plaintiff would be entitled to nominal damages at least.

CONTRACT. Writ in the Superior Court dated December 5, 1942. The action was heard by Hurley, J.

G. J. Schuman, for the plaintiff, submitted a brief. No argument nor brief for the defendant.

WILKINS, J. This is an action for breach of a written contract whereby the plaintiff was to furnish leased wire news reports to the defendant. The case was heard on a "statement of agreed facts" by a judge, who ordered judgment for the defendant. The plaintiff appealed.

The "statement of agreed facts" contained a letter which "may be submitted in evidence," a computation which "may be considered by the court," and a summary of lost profits as to which the "plaintiff will testify." Accordingly, it is not an agreement upon "all the material ultimate facts on which the rights of the parties are to be determined by the law," and is not a case stated but an agreement as to evidence. Frati v Jannini, 226 Mass. 430 , 431. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 313, S. C., ante, 245, 249. The appeal lies, since the order appealed from was founded solely upon the "statement of agreed facts," which is treated as part of the record, although the only "matter of law apparent on the record" is whether the order is warranted by the evidence. Pequod Realty Corp. v. Jeffries, 314 Mass. 713 , 716, and cases cited. See Koshland v. Columbia Ins. Co. 237 Mass. 467 , 471. The construction of the written contract set forth in the statement is treated as a question of law. Rizzo v. Cunningham, 303 Mass. 16 , 20. Atwood v. Boston, 310 Mass. 70 , 75. Bielanski v. Westfield Savings Bank, 313 Mass. 577 , 581.

The contract, which is dated March 13, 1942, is on a printed form in which certain parts are typewritten. It provides for the sale with broadcasting privileges of daily leased wire news reports by the plaintiff (also known as International News Service) to the defendant, which is described as the owner of a radio station in West Yarmouth, in return for weekly payments by the defendant. The contract also provides: "Seventh: This agreement shall continue for five years from October 1st, 1942 and shall thereafter renew itself continuously for periods of five years unless either party shall notify the other by registered letter received at least six months before the beginning of the first renewal period or any subsequent renewal periods, of its desire to terminate this agreement, in which event this agreement shall terminate at the beginning of the next renewal period which would have commenced thereafter; otherwise it shall remain in full force and effect, subject to all terms and conditions hereof." The italicized portions are typewritten and the remainder printed. The following is typewritten: "Thirteenth: This contract shall become effective upon thirty days of notice given to the International News Service by the Cape Cod Broadcasting company, at any date prior to October 1st, 1942." The other provisions, most of which are printed, are not now material. On or about October 1, 1942, the defendant refused to accept the plaintiff's service.

The question to be decided is whether the contract became effective only upon thirty days' notice by the defendant, or whether it became effective in any event on October 1, 1942, and the thirty day provision was merely an option allowing the defendant upon such notice to make the contract effective at any earlier date. We are of opinion that the latter construction is the correct one. The contract is to be interpreted as a whole. Murray v. Edes Manuf. Co. 309 Mass. 395 , 401. Bielanski v. Westfield Savings Bank, 313 Mass. 577 , 581. If possible,...