Sheffield v. Balmer

• Decision Date: 31 March 1873
• Citation: 52 Mo. 474
• Parties: N. M. SHEFFIELD et al., Appellants, v. CHARLES BALMER et al., Respondents.
• Court: Missouri Supreme Court

52 Mo. 474

N. M. SHEFFIELD et al., Appellants,

v.CHARLES BALMER et al., Respondents.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Amos M. Thayer, for Appellant.

The contract sued upon did not contemplate the doing of any act prohibited by Section 35, Chap. 206, G. S. 1865.

Horatio D. Wood, for Respondents.

This was a contract for the sale of merchandise on Sunday (Smith vs. Wilcox, 24 N. Y. 353).

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace. The action was founded on the following agreement.

“St. Louis, November 24th, 1868. We agree to pay Sheffield, Eaton & Stone, publishers St. Louis Home Journal, five dollars per issue for publishing a one hundred (1-3 column) line advertisement for us in their weekly (Sunday) edition every Sunday for one year; said advertisement to be changed at our option.

BALMER & WEBER.”

The plaintiffs recovered a judgment before the justice for one hundred and fifty-five dollars; from this judgment defendants appealed to the St. Louis Circuit Court. In the Circuit Court at special term defendants recovered a judgment, and from this last judgment the plaintiffs appealed to the general term where the judgment was affirmed, and the plaintiffs appealed to this court.

It appears from the bill of exceptions, that on the trial before the special term of the circuit court plaintiffs read in evidence the agreement herein before set forth, and then gave oral evidence tending to show; that plaintiffs were partners in business under the name of Sheffield & Stone at the commencement of the suit; that after the contract read in evidence was executed, and prior to the suit, Mr. Eaton sold all his interest in the firm of Sheffield Eaton & Stone to plaintiffs: that the advertisement mentioned in the contract was published for one year from and after November 28th, 1868, in the Sunday edition of the St. Louis Home Journal, that (31) publications of said advertisment from and after April 17th, 1869, remained unpaid for, amounting to $155. The evidence tended to show that the advertisement was paid for up to April 17th, 1869: that at that day plaintiffs were ordered to suspend the advertisement, that sometime prior to April 17th, 1869, defendants had ordered a change to be made in the advertisement, which change plaintiffs did not make for the space of one or two weeks, but afterwards made, and continued to publish the advertisement as changed until the expiration of the year: that at the date of the contract two editions of the Home Journal were published, one edition was dated on Sunday, the other on Saturday, that except as to the date, the editions were identical, but each was furnished to a different list of subscribers, that both editions were published on Saturday afternoon, and mailed on that day to subscribers; that copies of the Sunday edition were sold to subscribers on Sunday morning at plaintiffs office. Further proof was offered to prove, that, in January or February 1869, the two editions were consolidated, but the paper retained the same name and appearance, was printed and mailed on the same day as before, and was sold on Sunday morning as before: that the 31 publications sued for were inserted in the consolidated edition, which was dated on Saturday; that plaintiffs failure to make immediate change in the advertisement desired by the defendant, was occasioned by the wood cut furnished by the defendants being too wide for the columns of the paper: that the change was made as soon as the wood cut was cut down to fit the press: that all of the work performed on the paper was done on week days. The evidence also tended to prove; that the plaintiffs were notified to suspend the advertisement shortly after plaintiffs had neglected to make the change in the advertisement as directed: that the defendants knew nothing about the consolidation of the Saturday and Sunday editions, until the trial of this case.

The court at the close of the evidence, at the request of the plaintiffs, declared the law to be as follows:

“If the court find from the evidence, that after the consolidation of the two issues of the “Weekly Home Journal” the defendants advertisement was retained and published in such consolidated issue, theretofore known as the...