Meyer v. Pulitzer Publishing Company
| Decision Date | 04 April 1911 |
| Citation | 136 S.W. 5,156 Mo.App. 170 |
| Parties | DIEDRICH MEYER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.
Judgment affirmed.
Charles Fensky for appellant; Henry E. Haas of counsel.
(1) The court erred in treating the contract in suit as a contract of employment and in instructing the jury that defendant had a right to discharge plaintiff under certain circumstances. Plaintiff had a property right in his route, paid for by valuable consideration, and the contract could not be revoked, even for cause, without payment to plaintiff of the reasonable value of his vested interest. 1 Am. and Eng. Ency of Law (2 Ed.), 1217; Bishop on Contracts, sec. 1051; Mechem on Agency, sec. 114; Story on Agency, sec. 477, et seq.; Culbertson v. Young, 86 Mo.App. 277; Door Co. v Fuelle, 215 Mo. 422; Jones v. Williams, 139 Mo 40; Glover v. Henderson, 120 Mo. 368; McCray & Son v. Pfost, 118 Mo.App. 672; South v. Kerman, 5 Weekly Law Bul. 145; Powell v. Plank Road Co., 24 Ala. 441. (2) Forfeitures are not favored by the law and plaintiff's property right should be protected if possible. 17 Am. and Eng. Ency. of Law, 18, and cases cited in note 3; Culbertson v. Young, 86 Mo.App. 277. (3) The court erred in refusing to give plaintiff's instruction No. 5 on the question of custom and usage between defendant and its carriers, concerning the sale and transfer of routes. There is ample evidence in the case as to what this custom was and plaintiff had a right to have the jury instructed on this point. Failure to give proper instructions when asked is error. Thompson on Trials, sec. 2347.
Judson & Green for respondent.
(1) The trial court should have sustained defendant's demurrer to the petition and also the demurrer to the evidence at the close of the case, because the contract sued on was one of indefinite duration, and either party thereto could terminate it at any time. Grocery Co. v. Royal Remedy Co., 90 Mo.App. 53; Henderson v. Glover, 120 Mo. 367; Coffin v. Londis, 5 Phila. 176; Irish v. Deen, 39 Wis. 562; Echols v. New Orleans, 52 Miss. 610. (2) As plaintiff admitted that he had been permitted to enjoy all the privileges of this contract for a period of eleven years at a large annual profit to himself, he could not recover damages on the ground that defendant had terminated it before he had been given an opportunity to regain in profits the amount originally expended in acquiring the privileges of the contract. Henderson v. Glover, 120 Mo. 367; Davis v. Barr, 12 N. Y. St. 111; Buster v. Smith, 35 Miss. 457.
This is a suit for damages said to have accrued to plaintiff through the alleged wrongful conduct of defendant in revoking his agency and appropriating a newspaper route theretofore occupied by him to its use. The verdict and judgment were for defendant and plaintiff prosecutes the appeal.
Defendant corporation owns and publishes a daily newspaper in the city of St. Louis under the name of the St. Louis Post-Dispatch, and plaintiff has for many years pursued the occupation of selling and delivering newspapers on Route No. 80 in St. Louis. It appears defendant has parceled the city into districts for the purpose of selling and delivering its paper and designated by number the various routes therein canvassed by its agents. About March, 1896, one Burtscher was defendant's agent and carrier on Route No. 80 and as such supplied a list of about seventy-five patrons with its paper during six days in the week and about seventy with the Sunday issue thereof. Under the arrangement between defendant and Burtscher, defendant furnished its paper for six days in the week to him at one-half cent per copy and the Sunday issue at two and one-half cents each, with authority to Burtscher to dispose of the paper issued during the secular days of the week at one cent per copy and for that on the Sabbath at five cents each. One-half of the amounts thus collected was retained by Burtscher as his compensation for services rendered, and the obligation rested with Burtscher to collect for all papers delivered and defray the expense incidental to the route of delivery. If a loss occurred, it was to be borne by Burtcsher, as defendant required compensation for all papers delivered by its agent, and it was agreed, too, that for all subscriptions taken by defendant on Route No. 80 at its office the agent should have compensation for delivering such papers identically as if they had been procured through his effort. Plaintiff succeeded to the rights of Burtscher in March, 1896 under this arrangement and became defendant's agent on the same terms, with its consent and acquiescence. For the privilege of succeeding Burtscher under his contract, plaintiff paid him $ 45.46, by liquidating an indebtedness Burtscher owed defendant to that amount, and received an assignment in writing from Burtscher of his privilege pertaining to the route, together with the list of his patrons annexed. By the terms of the assignment it is expressed that plaintiff accepted the same and defendant consented thereto, on the condition that plaintiff would carry no other English paper in the territory designated as Route No. 80 under any circumstances, and he further agreed with defendant to faithfully observe all rules and regulations established by the management of the St. Louis Post-Dispatch for the government of Post-Dispatch carriers, etc. This instrument, besides being signed by Burtscher, the former carrier, in so far as it operated the assignment, was signed as well by plaintiff and defendant, who respectively accepted its terms and consented thereto. Plaintiff continued as defendant's carrier under its appointment and the stipulations above set forth for about eleven years, until April 15, 1907, when defendant revoked his authority and entered into an arrangement with another for the sale and delivery of its papers on Route No. 80. During the years plaintiff had charge of the route, the list of patrons was increased thereon from about seventy-five to one hundred and twenty-eight subscribers for the daily, or evening, paper, and from about seventy to one hundred and six for that of Sunday morning of each week. Though the written agreement executed between plaintiff and defendant in 1896 forbade plaintiff from delivering any other English newspaper along the route, it appears that during the period defendant by express permission modified this requirement so as to permit him to deliver the St. Louis Globe-Democrat, St. Louis Republic and St. Louis Star on the route, all English papers, for several years. But upon the launching of the St. Louis Times, an evening English newspaper, published in St. Louis, defendant pointedly refused to permit plaintiff to carry and deliver the same along the route to which his agency for it obtained and notified him to that effect in advance. Though permission to carry the "Times" in conjunction with defendant's paper had been thus denied him, plaintiff nevertheless entered into an arrangement with the St. Louis Times and did deliver that paper to subscribers along the same route. Because plaintiff breached his contract of agency and refused to accede to the pointed instructions about its subject-matter, defendant revoked his agency and refused to furnish him its papers thereafter for sale and delivery at the stipulated prices above set forth, and forthwith conferred authority upon another person to represent it along such route.
Plaintiff insists the privilege which he obtained in 1896 from Burtscher at an expenditure of $ 45.46 is a valuable one, as it yielded a considerable profit each week, and instituted this suit on the theory, we believe, that he had an interest in Route No. 80, the list of subscribers and the good-will of his patrons, which defendant was not...
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