Secord v. Portland Shopping News

• Court: Supreme Court of Oregon
• Writing for the Court: ROSSMAN, J. (after stating the facts as above).
• Citation: 269 P. 228,126 Or. 218
• Parties: SECORD v. PORTLAND SHOPPING NEWS ET AL.
• Decision Date: 17 July 1928

269 P. 228

126 Or. 218

SECORD
v.
PORTLAND SHOPPING NEWS ET AL.

Supreme Court of Oregon

July 17, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Action by Walter Secord against the Portland Shopping News and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action to recover damages for the breach of a contract. The facts are that in September, 1924, the plaintiff came to the city of Portland and proceeded with plans to establish an advertising publication to be distributed to the homes of the city. At the same time the defendant, Harry Marcus, was contemplating a similar venture. After the plaintiff had made considerable progress with his plans, and had secured contracts for approximately 200 inches of advertising space at the rate of $1.20 an inch in his proposed publication, the defendant Marcus apparently desired to eliminate the plaintiff as a competitor. Pursuant to his desire, he sent for the plaintiff and proposed that he (Marcus) would purchase the plaintiff's contracts, or employ the plaintiff. During his overtures he threatened the plaintiff that, if he would not accept the defendant's proposition, he would render it impossible for the plaintiff to begin his venture. This meeting occurred in November, 1924. At that time, neither the plaintiff, nor the defendant, had published a first issue of their contemplated advertising sheets. The plaintiff testified that he was possessed of very little financial resources, but that Marcus "had plenty of money." He finally yielded to Marcus' importunities, and the parties prepared and executed the contract which is the foundation of this action. It recites that the defendant, Portland Shopping News, hires the plaintiff as advertising manager for the period of two years at a salary of $60 per week. It required plaintiff to devote four hours per day to his employment. The contract recited:

That the plaintiff must deliver to the defendant, by November 26, 1924, "bona fide contracts of responible retail merchants of Portland, Oregon, acceptable to the employer, * * * for at least 200 inches per issue, at $1.20 per inch, for advertising space" in the Portland Shopping News, and that "within 30 days from the date of this contract he will secure 80 additional inches of like contracts, and that, if he fails to secure and deliver said 200 inches of said contracts by November 26, 1924, then said employer may terminate this contract, effective at once, and assign over to said employee by assignment on the back thereof the contracts which he has secured, and thereupon this contract shall terminate and end, and in the event said employee shall secure and deliver said 200 inches of said contracts by November 26, 1924, but shall fail to secure said additional 80 inches of said contracts within 30 days from the date of this contract, then the amount of $1,000 to be paid the employee by the employer for the right to terminate this contract as hereinafter agreed, where none of the other reasons for which it may be terminated, as hereinbefore or hereinafter agreed, apply, shall be reduced in proportion as the said 200 inches plus the additional number of inches secured by said employee in said 30 days is to the total of 280 inches."

The contract next recites that the defendant expects to be able to commence publication within four weeks' time, but that, if it "cannot start said publication within that time, * * * and does not do so," it shall have the right to terminate the contract and assign over to the plaintiff the contracts for advertising procured by himself, "and thereupon this contract shall terminate and end." Further the contract recites:

That, if the defendant decides to discontinue the publication, "and ceases the publication thereof, then it may terminate this contract, effective at once, and thereupon this contract shall terminate and end, provided this paragraph shall not apply if said publication shall be continued by the employer or any individuals comprising the said corporation, or by any of their business associates, in any similar form or under another name."

The contract next provides:

"It is further agreed that, in addition to the reasons hereinbefore specified, this contract may be terminated by the employer at any time without reason, by payment to the employee of the sum of one thousand dollars, and in the event said employee does not secure said additional 80 inches of contracts within the time hereinbefore specified, then by paying him such proportional amount of said $1,000 as the said 200 inches of contracts which he...