Stout v. St. Louis Tribune Co.

• Decision Date: 31 March 1873
• Citation: 52 Mo. 342
• Parties: IRA H. STOUT, Respondent, v. ST. LOUIS TRIBUNE CO., Appellant.
• Court: Missouri Supreme Court

52 Mo. 342

IRA H. STOUT, Respondent,

v.ST. LOUIS TRIBUNE CO., Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

C. M. Whitney, for Appellant.

I. There being no evidence to support the judgment, it cannot stand even though no point had been raised by instructions. (Hunt vs. Leavenworth, 11 Mo., 629.)

II. The plaintiff could only recover for commissions (under his agreement with defendant,) on advertising bills collected before the institution of this suit, unless he affirmatively proved negligence on the part of the defendant in making such collections. (Hunt vs. City of Utica, 18 N. Y., 442; Baker vs. City of Utica, 19 N. Y., 326.)

S. S. Merrill, for Respondent.

I. We are not bound by the contract, because the defendant had violated it, and we sue on a quantum meruit.

II. If we are bound by the contract, having performed all of our part of the contract, and proved non-payment by defendant, we are entitled to recover, unless defendant proves performance on his part, or excuse for non-performance. Under the contract, and his custom at the time of making the contract, shown in evidence, which thereby became a part of the contract, (1 Greenleaf's Evidence, § 294,) it was his duty to collect the money; and he fails to show any attempt to do so, or excuse for not doing so.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a Justice of the Peace, was brought to recover the amount of an account filed with the Justice for commissions charged to be due upon the amount of certain, advertisements procured by the plaintiff for defendant, and to be published in its paper.

The different items of an account for commissions, together with the advertisements on which it was charged, were set out in two bills of particulars, in one of which the commission charged was fifteen per cent., and in the other twenty-five per cent.

The first bill of particulars showed advertisements in the aggregate to the amount of $958.77, upon which the commission was $143.82, which was credited with an amount paid of $66.85, balance claimed, $76.77.

The second bill of items bore date, 22nd day of January, 1870, and the items continued to March 10th, 1870. The aggregate of the advertisements charged for in that account, was $408; commission at twenty-five per cent claimed, was $102; this was also credited with the sum of $68.75. Balance claimed was $35.25, making the whole amount claimed to be due $110.22.

A trial was had before the Justice, where the plaintiff recovered judgment for the full amount of the account. An appeal was taken from this judgment to the St. Louis Circuit Court, where judgment was again rendered for the plaintiff for the account, which judgment was affirmed in the court at Gen eral Term. Motions were made for a new trial in Special Term, and for a re-hearing in the court at General Term, each of which being overruled, defendant excepted.

The advertisements, for which commission is charged, up to the 22nd day of January, 1870, as charged in the first bill of particulars, were obtained under a verbal contract, by which the commission to be charged, was fifteen per cent. Those charged for after the 22nd day of January, 1870, were obtained under a written contract, and for which the price agreed to be paid was twenty-five per cent.

The plaintiff on the trial had in the Special Term of the St. Louis Circuit Court, offered and read in evidence a written agreement between plaintiff and defendant, dated 22nd day of January 1870, by which the defendant authorized the plaintiff to solicit advertisements for defendant's newspaper, plaintiff taking such rates as defendant might direct. The “defendant to pay plaintiff twenty-five per cent as a compensation for procuring the same, on all advertising that the said Tribune Company or its representatives may accept on this contract.” It was further agreed by said contract, that defendant would allow plaintiff to draw ten dollars each week, the amount so drawn to be accounted for as a credit on account of commission for the month the sum was drawn in, provided the commissions of the week amounted to such a sum; “all commissions to be paid to said Stout as the advertising accounts are paid into the office of said Tribune Co., or to its agent, and that a settlement of commissions due said Stout shall be made on the first of each month of all business of the previous month.” It was further provided by said contract as follows:

“5th. That the said Tribune Co., through its book-keeper or cashier, shall put down in the account books (to which this contract is annexed and made part of same,) in his own handwriting, on the day that they may be procured under this contract, all advertisements procured by said Stout, in which the amounts for advertisements are to be specified, and the amount also of the commission that there would be due thereon, and on the day they are paid, to specify the amounts opposite received therefrom, and specify the commission paid, when same is paid over to...