Press v. New York Press Co.

Citation58 N.E. 527,164 N.Y. 406
PartiesUNITED PRESS v. NEW YORK PRESS CO., Limited.
Decision Date16 November 1900
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, First department.

Action by the United Press against the New York Press Company, Limited, to recover damages for breach of a contract to take news reports. From a judgment of the appellate division (54 N. Y. Supp. 807) affirming a judgment for plaintiff for an amount less than demanded, it appeals. Affirmed.

Landon, J., dissenting.

William C. Davis, for appellant.

De Lancey Nicoll, for respondent.

GRAY, J.

This action was brought to recover damages for the breach of a contract in writing entered into between the parties, wherein the plaintiff agreed to deliver to the defendant the night news report of the former for publication every morning in the city of New York, and the defendant agreed to receive the said news report, ‘and to pay to the first party [the plaintiff] therefor a sum not exceeding three hundred dollars during each and every week that said news report is received by the second party [the defendant] until the first day of January in the year 1900, it being understood and agreed that said news report continue to be fully equal in quality and quantity to its present average standard.’ It was also further provided that the defendant ‘shall have the right to receive the said news report without interruption from and after the first day of January, in the year 1900, and the first party [the plaintiff] shall continue to deliver the same, if required by the second party, at a price which shall be fair and equitable to both of the parties hereto; provided, that such price shall not be more than any other daily morning newspaper in the city of New York shall be required to pay to the first party for the same news report.’ This contract was made in July, 1892, and the parties proceededunder it until January 1, 1894; the plaintiff furnishing its news report to the defendant, and the defendant paying therefor the sum of $300 in each week. A few days before January 1, 1894, the defendant, through its manager, notified the plaintiff in a letter to cease sending the news report on the 1st of January, and that after that date it would not pay for the same. The letter in which this notice was conveyed contained the statement that it had become necessary to make a reduction in the cost of the defendant's news service, and that the plaintiff had declined to make any concessions. In a brief correspondence, which ensued during the next few weeks, the subject of a concession in price was discussed between the parties, but nothing came of it. Thereupon the plaintiff brought this action, and demanded judgment for damages in the sum of upwards of $93,000, upon the basis of its right to $300 a week from January 1, 1894, to January 1, 1900. The trial court denied a motion to dismiss the complaint, and at the close of the plaintiff's case, the defendant offering no evidence, a verdict was directed for the plaintiff in the sum of six cents, upon the ground that there was a technical breach of the contract, for which only nominal damages might be awarded. The judgment entered thereupon was affirmed by the appellate division in the First department, and the plaintiff's appeal to this court presents this as the main question for our consideration: whether the contract was so indefinite, by reason of its failure to state the price to be paid by the defendant, as to preclude a recovery of substantial damages for its breach.

The appellant claims that, inasmuch as the language of the contract bound the defendant to pay a sum ‘not exceeding $300 a week,’ by paying that sum for a period of time it had bound itself through a practical construction of the instrument; and it is also argued that the contract should be construed as one ‘to recover the reasonable value of the news service for the unexpired term of the contract, less the cost of performance.’ If this were a case where the contract of the parties was merely ambiguous in its terms, it might be permissible to explain them by evidence of their acts, and thus to show a practical construction; but the difficulty with this instrument lies deeper. It lacked support in one of its essential elements,-in the absence of a statement of the price to be paid. That was a defect which was radical in its nature, and which was beyond the reach of oral evidence to supply; for, if the intention of the parties, in so essential a particular, cannot be ascertained from the instrument, neither the court nor the jury will be allowed to make an agreement for them upon the subject. It is elementary in the law that, for the validity of a contract, the promise or the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and, if thus defective, parol proof cannot be resorted to. 1 Comyn, Cont. 3; 1 Chit. Cont. 92; Elmore v. Kingscote, 5 Barn. & C. 583; Blagden v. Bradbear, 12 Ves. 468; Williams v. Morris, 95 U. S. 456, 24 L. Ed. 360;Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273;Stone v. Browning, 68 N. Y. 598-604. The latter case is not parallel in its facts, but a question arose whether there was a sufficient memorandum of the contract for the sale of the goods to satisfy the requirements of the statute of frauds, and a letter of the defendant was relied upon for the purpose. Judge Rapallo observed that it did not ‘state the price, or any of the terms of the contract. Those deficiencies cannot be supplied by oral evidence. All the essential parts of the contract must be evidenced by the writing. This objection, without reference to others, is conclusive.’ The rules of evidence exclude oral testimony with reference to the understanding of the parties or to supply omissions, and permit it only when to do so is necessary to explain the meaning of some technical or ambiguous language used. It will not permit it to vary the terms of the contract itself by inserting in the writing what is not there. 1 Greenl. Ev. §§ 275-277, 282; Drake v. Seaman, 97 N. Y. 230-236. In Drake v. Seaman, supra, where the question arose as to the sufficiency of the memorandumof the parties' contract, in an action for its breach Judge Finch cites the language above given from Judge Rapallo's opinion in Stone v. Browning in support of the established rule that the statute of frauds requires that the memorandum contain all the material terms of the contract between the parties, and that ‘it must show on its face what the whole agreement is so far as the same is executory, and remains to be performed, and rests upon unfulfilled promise.’ This was an executory contract, which attempted to provide, over a period of years, for the furnishing of news reports on each day, with a figure stated as the limit which the price to be paid each week must not exceed. There is thus no rate of compensation nor price fixed at which the defendant was bound to take and pay for the news report, and the element of mutuality in that respect was wanting. It was nearly as defective in...

To continue reading

Request your trial
67 cases
  • New York Life Ins. Co. v. Boling
    • United States
    • Mississippi Supreme Court
    • 19 Octubre 1936
    ... ... 1229; Buckmaster v. Consumer's ... Ice Co., 5 Daly (N. Y.) 313; Hubbard v. Turner Dept ... Store Co., 278 S.W. 1060; United Press Co. v. New York ... Press Co., 53 L.R.A. 288, 164 N.Y. 406 ... The ... defendant in the case at bar claims that the amount of the ... ...
  • Murphy v. Hanna
    • United States
    • North Dakota Supreme Court
    • 12 Mayo 1917
    ... ... the contract. They may be communicated. Messmore v. New ... York Shot & Lead Co. 40 N.Y. 427; Central Trust Co ... v. Clark, 34 C. C. A. 354, 92 F. 293; Sedgw ... Adams, 26 Ala. 272; Bumpus v. Bumpus, 53 Mich ... 346, 19 N.W. 29; United Press v. New York Press Co. 164 N.Y ... 406, 53 L.R.A. 298, 58 N.E. 527 ...          The ... ...
  • Golightly v. New York Life Ins. Co
    • United States
    • Mississippi Supreme Court
    • 2 Octubre 1939
    ... ... v ... Empire Natural Gas Co., 33: F. (2d) 248, 64 A.L.R. 1229; ... Buckmaster v. The Consumer's Ice Co., 5 Dailey (N ... Y.) 313; United Press Co. v. New York Press ... Co., 53 L.R.A. 288, 164 N.Y. 406; Varney v ... Ditmars, 111 N. E. (N. Y.) 822; Arundel Realty Co ... v. Maryland ... ...
  • BMC Software, Inc. v. Int'l Bus. Machs. Corp.
    • United States
    • U.S. District Court — Southern District of Texas
    • 30 Mayo 2022
    ...1900.” United Press, 164 N.Y. at 408 (emphasis added). For some time, the defendant paid United Press $300 per week for the news reports. Id. at 409. But when the defendant sent United written notice that it could not continue paying the $300 sum, United Press filed suit and demanded judgme......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT