Publishers: Geo. Knapp & Co. v. Culbertson

• Decision Date: 07 November 1910
• Citation: 133 S.W. 55,152 Mo. App. 147
• Court: Missouri Court of Appeals
• Parties: PUBLISHERS: GEO. KNAPP & CO. v. CULBERTSON et al.

133 S.W. 55

152 Mo. A. 147

PUBLISHERS: GEO. KNAPP & CO. v. CULBERTSON et al.

Kansas City Court of Appeals. Missouri.

November 7, 1910.

Rehearing Denied January 2, 1911.

1. SUNDAY (§ 17) — CONTRACT FOR SUNDAY LABOR — VALIDITY — ADVERTISING.

Where an order was given for the insertion of advertisements in the issues of a newspaper published on Sundays, and it was shown that the two last editions of the newspaper were printed, mailed, and delivered on Sunday morning, and that the advertisements were inserted in all of the editions issued on those Sundays, the parties stipulated for the performance of labor on Sunday in violation of Rev. St. 1899, § 2240 (Ann. St. 1906, p. 1420), making it a misdemeanor to labor or perform any work on Sunday other than the household offices of daily necessity, or other works of necessity, so that the contract was void and would not sustain a recovery for the agreed price.

2. CONTRACTS (§ 175) — PRESUMPTIONS — USUAL COURSE AND CONDUCT OF BUSINESS.

In the performance of contracts, it may be presumed that both parties to the contract intended that the usual method of business would be followed.

3. CONTRACTS (§ 342) — PLEADING — ILLEGALITY.

Where a petition states a contract valid on its face, but which may be invalid by reason of some extrinsic matter, the extrinsic matter must he pleaded in order to make it an issuable question at the trial.

4. APPEAL AND ERROR (§ 173) — PLEADING — ILLEGALITY.

Where a contract sued upon appears to be void as being in violation of the statute against the performance of work on Sunday, this defense may be raised at any stage of the action, whether the unenforceable character of the contract is shown by the petition or not.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Publishers: Geo. Knapp & Co. against Jerry Culbertson and others. Judgment for the plaintiff, and defendants appeal. Reversed.

L. N. Dempsey and Chas. W. Sloan, for appellants. Omar E. Robinson and H. H. McCluer, for respondent.

JOHNSON, J.

Plaintiff, publisher of the St. Louis Republic, a newspaper of general circulation, brought suit against defendants to recover the contract price of advertisements it inserted for defendants in two Sunday issues of the newspaper. The petition is in two counts; each advertisement being pleaded as a separate cause of action. A jury was waived, and the court, after hearing the evidence, rendered judgment for plaintiff on both counts. Defendants appealed and contend that the contracts for the advertising were void because they provided for the violation of the statute prohibiting labor on Sunday. Section 2240, Rev. St. 1899 (Ann. St. 1906, p. 1420). Plaintiff argues that the contracts did not require nor contemplate a violation of the statute, and, further, that the issue of the validity of the contracts is not in the case, since it was not raised in the pleadings.

It is alleged in the first count of the petition: "That heretofore, and on or about the 8th day of April, 1908, the defendants engaged space in said St. Louis Republic for the insertion of an advertisement designed to acquaint the public with the character of the business in which the defendants were engaged; that the plaintiff accepted said offer to insert said advertisement, and in pursuance of said employment did on the 12th day of April, 1908, insert in the St. Louis Republic a large display advertisement setting forth the defendants' business in such manner and in such language as defendants desired, and as instructed by defendants." And in the second count: "That heretofore and on the 16th day of April, 1908, defendants, being desirous of advertising to the public its enterprises, solicited space in the plaintiff's paper, a newspaper of general circulation, the St. Louis Republic, and employed plaintiff to insert in said St. Louis Republic, on the 19th day of April, A. D. 1908, said advertisement. That in pursuance of said employment, and in accordance with this contract with the defendants, plaintiff did insert in said St. Louis Republic a large display advertisement in words and figures as requested by the defendants, and in accordance with this said contract so made between the plaintiff and defendants." Defendants demurred to each count on the ground that it did not state facts sufficient to constitute a cause of action, and on the overruling of the demurrer answered with a general traverse.

The evidence of plaintiff shows that two orders were received from defendants for advertising in the issues of the newspaper published respectively on the 12th and 19th of April, 1908 (Sundays), and that the advertisements were inserted in all of the editions issued on those dates. It was the custom of plaintiff to issue four editions of the Sunday newspaper. The first edition was issued on the morning of the preceding Friday; the second went to press at 6 o'clock p. m. on Saturday; the third and fourth were the fast mail and St. Louis editions and went to press early Sunday morning. No Sunday labor was expended on the first two editions, but on the last two the press, mailing, and delivery work were performed on Sunday. This method of doing business was pursued on the dates' under consideration.

Section 2240, Rev. St. 1899, provides: "Every...