Pulitzer Publishing Co. v. Mcnichols

• Decision Date: 04 February 1913
• Parties: PULITZER PUBLISHING COMPANY, Plaintiff, Appellant, v. HENRY J. McNICHOLS, Defendant, Appellant
• Court: Missouri Court of Appeals

153 S.W. 562

170 Mo.App. 709

PULITZER PUBLISHING COMPANY, Plaintiff, Appellant, v. HENRY J. McNICHOLS, Defendant, Appellant

Court of Appeals of Missouri, St. Louis

February 4, 1913

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

REVERSED AND REMANDED (with directions).

Cause certified to Supreme Court.

Edward A. Feehan for defendant, appellant.

(1) If the consideration of a contract, either in whole or in part be illegal, this defeats the entire contract, and it is immaterial whether the contract itself discloses such illegality, or it be established by evidence aliunde. Downing v. Ringer, 7 Mo. 585; Sumner v Summers, 54 Mo. 340; Sprague v. Rooney, 104 Mo 349; Hagerty v. Ice Mfg. Co., 143 Mo. 238; Fair Ass'n v. Carmody, 151 Mo. 566; Bick v Seal, 45 Mo.App. 475; Friend v. Porter, 50 Mo.App. 89; Malone v. Fidelity Co., 71 Mo.App. 1; Board of Trade v. Brady, 78 Mo.App. 585; Rice v. Bank, 98 Mo.App. 696; Sawyer v. Sanderson, 113 Mo.App. 233; Tandy v. Commission Co., 113 Mo.App. 409; Miller v. Ammon, 145 U.S. 421; Handy v. Publishing Co., 41 Minn. 188; Wilbur v. Stoepel, 82 Mich. 344; Covington v. Threadgill, 88 N.C. 186. (2) Where a publishing company contracts to publish a newspaper and to print advertisements therein, and the evidence shows that part of the labor incident to the printing and publication of such paper is regularly and in the ordinary course of the business of the company, done on Sunday, and that such Sunday work is actually done in performing the contract, no recovery can be had for services rendered by the publishing company under such contract. Knapp & Co. v. Culbertson, 152 Mo.App. 147; Handy v. Publishing Co., 41 Minn. 188; Smith v. Wilcox, 24 N.Y. 353; Porter v. Paving Co., 214 Mo. 1. (3) An illegal contract will not support any cause of action, whether on the contract itself, or on quantum meruit, or one sounding in damages. Downing v. Ringer, 7 Mo. 585; Keating v. City, 84 Mo. 415; Stewart v. Thayer, 170 Mass. 560; Harris v. Roof, 10 Barb. 489; Bixley v. Moore, 51 N.H. 402; Sullivan v. Horgan, 17 R. I. 109; Brinkman v. Eisler, 16 N.Y.S. 154. (4) Where a party to a continuing contract refuses to go on with same according to its terms, or insists on carrying out the contract in a way which would render the performance of the residue a thing different in substance from what was contracted for the other party need not perform further on his part. 9 Cyc. 649; Berthold v. Electric Co., 165 Mo. 280; Murphy v. City, 8 Mo.App. 483; Smith v. Keith, 36 Mo.App. 567; Cousins v. Hann, 100 Mo.App. 452; Claudius v. Amusement Co., 109 Mo.App. 346; Laswell v. Handle Co., 147 Mo.App. 497; Leopold v. Salkey, 89 Ill. 412; Railway Co. v. Richards, 152 Ill. 59; Ballance v. Vanuxem, 191 Ill. 319; Bell v. Hoffman, 92 N.C. 273; Godchaux v. Hyde, 52 So. 269; Gardner v. The Roycrofters, 118 N.Y.S. 703; Stephenson v. Cady, 117 Mass. 6; O'Neill v. Supreme Council, 70 N. J. Law 410; Anvil Co. v. Humble, 153 U.S. 540.

Judson, Green & Henry for plaintiff, appellant.

(1) The contract sued upon does not by its terms require that any portion of the specified advertising shall be placed in the Sunday paper, because the clause of the contract which originally required that at least one-fourh of all the advertising should be in the Sunday paper was admitted by defendant to have been stricken out before the contract was signed. (2) The item of $ 313.60, for the advertisement of May 10, 1908, is not illegal on account of its having been inserted in one of plaintiff's Sunday papers. Sheffield v. Balmer, 52 Mo. 474; Basset v. Tel. Co., 48 Mo.App. 566; R. S. 1909, sec. 4802. (3) The public policy of this State respecting the right to recover for advertisements published in Sunday papers is not to be determined alone from section 4801, Revised Statutes 1909, which makes it a misdemeanor to perform work or labor on the Sabbath day; but that section is modified by and the public policy of the State respecting Sunday contracts is fully declared in section 4802, Rev. Stat. 1909, Secs. 4801 and 4802; Bassett v. Western Union Telegraph Co., 48 Mo.App. 566. (4) Irrespective of the above statute, the public policy of this State respecting the right to collect for advertising published in a Sunday paper has also been declared by the Supreme Court in the case of Sheffield v. Balmer, 52 Mo. 474, and the judges of that court all agreed that a newspaper could compel an advertiser to pay for such an advertisment. Sheffield v. Balmer, 52 Mo. 474; Association v. Delano, 108 Mo. 217; State v. Railroad, 143 S.W. 785. (5) Contracts for Sunday labor were valid and enforcible at common law. State v. Railroad, 143 S.W. 785; Ex parte Nut, 157 Mo. 527; Sheffield v. Balmer, 52 Mo. 474; Association v. Delano, 108 Mo. 217. (6). The contract sued upon did not give Mr. McNichols any right to insist that his advertisements should be placed on an "outside" page. The contract and letter of September 30, 1907, must be construed together in the light of the circumstances and relations between the parties which then existed.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This action was begun before a justice of the peace, by plaintiff filing the following statement:

"Plaintiff says that defendant by the written contract of September 30, 1907, filed as a part hereof, agreed to advertise in plaintiff's paper and to pay therefor at the rate of sixteen cents per line, if 25,000 lines were used in a period of one year from September 30, 1907, or at the regular card rates charged by plaintiff for advertising, if less than 25,000 lines were used in said year. Plaintiff further says that defendant did thereafter use advertising space in plaintiff's paper to the amount of $ 416.46 and has refused to pay therefor. Wherefore, plaintiff prays for judgment against defendant for the sum of $ 416.46 together with interest thereon at six per cent from September 30, 1908. Itemized statement hereto attached."

With the above statement there was filed the contract therein referred to, in words and figures as follows:

"$ 4000 St. Louis, Sept.30, 1907.

"To the Pulitzer Publishing Co., Publishers St. Louis Post Dispatch.

"We hereby authorize you to insert our advertisements in the Daily or Sunday Post Dispatch to occupy the space of 25,000 lines of display to be used by us within a period of one year from date, for which we hereby promise and agree to pay the Pulitzer Publishing Company the sum of four thousand dollars. We reserve the privilege under this agreement of using additional lines of display in the Daily or Sunday within the time specified above at sixteen cents per line each insertion. We also reserve the privilege of inserting leaded locals at sixty cents per line each insertion Daily or Sunday.

"In consideration of the above rate we hereby agree to consume one-fourth or more of all the advertising ordered by us within the year named above in the Sunday issues of the Post-Dispatch.

"(Signed) Henry J. McNichols.

"Accepted subject to conditions on back by

"The Pulitzer Publishing Co.

"W. C. Steigers, Business Manager.

"Per E. N. Giles."

The last paragraph of the contract appears stricken out by means of ink lines drawn through the same. On the back of the contract are set out the ordinary advertising rates of defendant for advertising in the columns of its paper, and certain other provisions entitled "Conditions." Of the latter we need only notice the following:

"3. If, for any reason, this contract is cancelled or made void, the advertiser hereby agrees to pay regular card rates in effect at the date of this contract for the amount of space that shall have been used."

With plaintiff's statement was filed an account which we need not set out in full. By it plaintiff showed two items as being due from defendant to plaintiff; one for $ 102.66, being one cent per line for all the advertising done by defendant under the contract (10,266 lines) and being the excess of the "card rate" over the contract price; the other for $ 313.60 for an advertisement published May 10, 1908, at the contract price, viz., sixteen cents per line. There appears a further item of twenty cents concerning which there was no testimony, and it need not be noticed.

Upon the trial in the justice court plaintiff recovered judgment for the sum of $ 466.42. Thereafter defendant duly perfected his appeal to the circuit court of the city of St. Louis, where the cause was tried before the court sitting as a jury, a jury having been waived. Plaintiff prayed the court to give the following declarations of law, which were refused by the court, viz:

"1. The court declares the law to be that plaintiff is entitled to recover against defendant in the sum of $ 416.46 with interest thereon from June 2, 1908, to this date at six per cent per annum, or for a total of $ 482.90."

"2. The court declares the law to be that under the contract offered in evidence the plaintiff had a right to place the defendant's advertisement of May 10, 1908, on an inside page, and the fact that it was not placed on an outside page is no defense in this case."

"3. The court declares the law to be that if it be lieves from the evidence that the section of plaintiff's paper in which the defendant's advertisement of May 10, 1908, appeared was set up in print and that part of the paper completely run through the presses before midnight Saturday, then it is no defense that the late news section of the city edition of the paper may not have been run through the presses until Sunday morning or that the entire paper when completely printed was distributed to subscribers and carriers and sold on the streets of St. Louis on Sunday morning."

The circuit court found the issues...