Press Publishing Co. v. Reading News Agency

• Decision Date: 21 November 1910
• Docket Number: 208-1909
• Parties: Press Publishing Company, Appellant, v. Reading News Agency
• Court: Pennsylvania Superior Court

44 Pa.Super. 428

Press Publishing Company, Appellant, v. Reading News Agency

No. 208-1909

Superior Court of Pennsylvania

November 21, 1910

Argued November 12, 1909

Appeal by plaintiff, from judgment of C.P. Berks Co.-1907, No. 74 on verdict for defendant in case of The Press Publishing Company v. Reading News Agency.

Appeal from judgment of justice of the peace.

Assumpsit for money due under a contract. Before Stevens, J.

The facts are stated in the opinion of the Superior Court.

At the trial the court admitted under objection and exception various offers of evidence showing the manner in which the defendant conducted the business, the volume thereof, and the profits thereon.

Verdict for defendant with certificate in defendant's favor for $ 163.92, upon which judgment was entered.

Errors assigned were in permitting defendant to show the additional consideration over and above that mentioned in the letter of April 1, 1903, quoted in the opinion of the Superior Court various rulings on evidence, quoting the bill of exceptions various instructions, quoting them.

Affirmed.

Charles H. Tyson, with him Clark A. Wick and Benj. F. Dettra, for appellant, cited: Buzby v. Buzby, 30 Pa. C.C. 225; Hathaway v. Bennett, 10 N.Y. 108; Willcox & Gibbs Sewing Machine Co. v. Ewing, 141 U.S. 627 (12 S.Ct. 94); Coffin v. Landis, 46 Pa. 426; Peacock v. Chambers, 46 Pa. 437; Blackstone v. Buttermore, 53 Pa. 266; Boas v. Updegrove, 5 Pa. 516; Real Estate Savings Institution v. Linder, 74 Pa. 371; Wilson v. Wernwag, 217 Pa. 82; Streeper v. Williams, 48 Pa. 450; Wolf v. Studebaker, 65 Pa. 459; Pennypacker v. Jones, 106 Pa. 237; Cotton v. Wiley, 39 Pa.Super. 507; Patton v. Ash, 7 S. & R. 116; Carland v. Cunningham, 37 Pa. 228; Eilbert v. Finkbeiner, 68 Pa. 243; Jensen v. McCorkell, 154 Pa. 323; Wilson v. Wilson, 26 Pa. 393.

Wellington M. Bertolet, with him Isaac Hiester, for appellee. -- Parol evidence is admissible to show other or greater consideration than that expressed in the instrument: Strawbridge v. Cartledge, 7 W. & S. 394; Jack v. Dougherty, 3 Watts, 151.

Evidence of past profits was properly admitted for the purpose of giving the jury a substantial basis upon which to determine the value of the contract at the time of breach: Pittsburg Gauge Co. v. Valve Co., 184 Pa. 36.

Notice to the plaintiff to produce the original of a letter, the receipt and existence of which was positively denied by plaintiff's counsel before a carbon copy was admitted in evidence, is unnecessary as a preliminary to the introduction of the carbon copy: Roberts v. Spencer, 123 Mass. 397; Scott v. Bailey, 73 Vt. 49 (50 A. 557); Bickley v. Bickley, 136 Ala. 548 (34 So. 946); Jones v. Jones, 38 Cal. 584.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

PORTER, J.

The plaintiff brought this action to recover for newspapers delivered to the defendant company, during the month of May, 1904. The defendant pleaded payment and set-off and introduced evidence tending to establish that it had suffered damages by reason of the breach by the plaintiff of the contract under which the relations between the parties, that of publisher of a newspaper and an agent having the exclusive sale thereof in a particular territory, had been established. The jury, after a trial, certified a balance in favor of defendant, and the plaintiff appeals.

The terms and conditions under which the defendant acquired the exclusive agency of the publications referred to were defined in an instrument of writing signed by the accredited agent of the plaintiff company and accepted by the defendant, in the following words:

" Mr. F. W. Curtis.

" Dear Sir: -- In consideration of your undertaking to handle our publications at Reading and Allentown it is understood and agreed that you will enjoy all the present privileges of news agencies and will be recognized as the exclusive agent of the publications herein mentioned for the cities of Reading and Allentown, not including the rights enjoyed by the Union News Company at stations, as long as you faithfully and impartially conduct the business and pay your bills promptly.

" The Press Publishing Company,

" New York World,

" Per S. J. Richardson, Circulation Manager."

The plaintiff continued to furnish the publications referred to in the schedule annexed to this paper until June, 1904, when they notified the defendant that they would not furnish the papers under the contract after the sixth day of that month, and from and after that day they did deliver the papers to another party whom they had created their exclusive agent for the sale of the publications. The defendant contends that this action involved a violation of the covenant of the contract that it should be recognized as the exclusive agent of the publications referred to, in said cities, " as long as you faithfully and impartially conduct the business and pay your bills promptly." The defendant called a witness who testified, under exception by plaintiff, as to the circumstances under which the written contract above recited was delivered by the plaintiff to the defendant."

Q. Will you state what occurred on or about April 1st, 1903, with reference to assuming the indebtedness of Walter G. Roland to the Press Publishing Company?

A. In regard to Walter G. Roland, a representative of the New York World stated that Mr. Walter G. Roland owed them $ 280.78. I agreed to pay this off in cash provided they would sign this paper (the agreement above quoted), turning the exclusive agency of the New York World over to us. So they accepted a check and they sent this paper accordingly, and gave us the control of the paper as long as we conducted the business impartially and paid our bills promptly." The defendant offered in connection with this testimony the check dated April 1, 1903, given to the plaintiff in payment of the $ 280.78 above mentioned, the indorsements upon which showed that the plaintiff company had received payment of the same. The witness testified that this check had been delivered to the plaintiff company at the same time its agent signed the written contract, and that the money was paid " in consideration of their signing this paper." The plaintiff objected to the introduction of this testimony upon the ground that as the written agreement itself made no mention of the payment of the money, the evidence of such payment was incompetent, that the negotiations leading up to it were merged in the agreement. This oral testimony did not contradict, alter or vary the terms of the written contract. The only effect of it was to show a greater consideration than that expressed in the written instrument. The additional consideration offered to be proved did not appear to be repugnant or inconsistent with that set out in the deed, and was, therefore, such as it was competent for the defendant to establish by oral evidence: Jack v. Dougherty, 3 Watts 151; Strawbridge v. Cartledge, 7 W. & S. 394; Watterson v. Allegheny Valley Railroad Co., 74 Pa. 208. If the testimony of this witness was true, and it was uncontradicted although the agent of the plaintiff with whom the witness had dealt was present and testified at the trial, then the offer of the defendant to pay an amount for which it was in no manner liable was upon the express condition that the plaintiff would sign the paper which became the contract between the parties, and the plaintiff, knowing this fact, accepted the money and signed the contract. The evidence as to the additional consideration was properly admitted and the first specification of error is overruled. The parties acted under this contract until June, 1904, when it was abruptly abrogated by the plaintiff. The defendant contended that this was a breach of the contract for which it was entitled to such damages as the evidence established it to have sustained. The plaintiff contends that the defendant acquired no property right in the exclusive agency to sell the publications in the cities of Reading and Allentown, and that the plaintiff had the right at any time to cancel the contract and refuse to make further deliveries of the publications to the defendant, for the reason that the written contract provided for no definite term during which the agency should continue. When a contract provides that one party shall render service to another, or act as his agent, or have the exclusive right to sell the product of a factory within certain territory and does not specify a definite time or prescribe conditions which shall determine the duration of the relation, it is within the power of either party to terminate it at any time. Such contracts are to be construed according to their terms, and it is entirely competent for the parties to agree that they shall operate for a definite period, or that their continuance shall depend upon conditions expressed in the instrument. The situation in which the parties stand, the necessities for which ...