Tribune Ass'n v. Simonds

• Decision Date: 02 May 1918
• Docket Number: No. 44/731.,44/731.
• Citation: 104 A. 386
• Parties: TRIBUNE ASS'N v. SIMONDS et al.
• Court: New Jersey Court of Chancery

104 A. 386

TRIBUNE ASS'N

v. SIMONDS et al.

No. 44/731.

Court of Chancery of New Jersey.

May 2, 1918.

Suit by the Tribune Association against Frank H. Simonds and the New York Herald Company for an injunction to restrain breach of contract. Injunction granted as to defendant Simonds, and denied as to defendant New York Herald.

Theodore Strong, of New Brunswick, and Sackett, Chapman & Stevens, of New York City, for complainant. Andrew Foulds, Jr., of Passaic, and Lemuel Quigg, of New York City, for defendant Simonds. Andrew Foulds, Jr., of Passaic, and R. W. Candler, of New York City, for defendant New York Herald.

BACKES, V. C. I have very little trouble in reaching a conclusion as to the court's duty upon this application to restrain the defendants. The facts are not in dispute, and the principles of law applicable are not obscure. The motion is before me on bill and affidavits and proofs taken in open court, and presents this situation:

The defendant Frank H. Simonds entered into a written contract with the complainant, the Tribune Association, in January, 1915, to serve it for a period of four years as an editorial writer, and as such to have charge of the editorial page of the New York Tribune, and authority over the hours of labor and terms of employment of other editorial writers, subject only to the direction of the editor in chief and the assistant editor of the paper. As a part of his undertaking, Mr. Simonds covenanted that he "will not write for or contribute to any other publication or periodical during the term of this agreement, except that he shall have the right to contribute to monthly magazines or to weekly magazines, which are not to be published in connection with or as part of any newspaper." This covenant is sought to be enforced, or rather the effort is to restrain its breach.

After Mr. Simonds entered upon his employment, in August following, he made an additional agreement with the complainant to write war articles for the Sunday edition of the Tribune, which were to be syndicated, and for this he was to receive, as he says, $50 a week and a half of the profits of the syndication. Later the agreement was modified as to the compensation, whereby he was to receive $85 per article. He remained in the employ of the Tribune until January, 15, 1918, when he severed his connection as editorial writer, by a formal letter of resignation. In February he bargained with the McClure Syndicate to write war articles for a year, at the rate of $500 a week and a share of the profits of syndicating the articles when the profits reached the sum of $13,000. The McClure Syndicate has been syndicating Mr. Simonds' articles since February, gradually increasing its subscribers, until they now number 73 newspapers, distributed throughout the United States, of which the defendant The New York Herald is one. Mr. Simonds is manifestly violating his covenant, unless it is made to appear that his contract of employment is at an end, by a mutual rescission, which, of course, is not pretended, or that he is absolved from a further performance because of such violation of the contract by the Tribune Association, as evinced an intention not to be further bound by its terms, or, because of such misconduct of the association, inimical to the relation of master and servant, as to make further performance on the part of Mr. Simonds reasonably impossible. That there were such violations and misconduct and that Mr. Simonds was justified in not continuing under the circumstances is the substantial defense put forward and upon which I think the case must turn.

Before disposing of this question, I want to first make mention of two preliminary matters: One suggested, rather than urged, as a violation of the contract on the part of the complainant; the other, which has been pressed with considerable force, that the contract of employment is no longer in existence, having been superseded by a later one which has come to an end according to its terms.

The first is that shortly after Mr. Simonds contracted with the Tribune, in April, 1915, the Tribune Association began syndicating his editorial writings, and continued to do so throughout the term of his service. While this may not have been a part of the arrangement, it does appear that he at all times acquiesced, and I fail to see how it can now be seized upon as having violated his rights; and I may add that it is not assigned by him, nor by his counsel, as having prompted him to quit his contract in January of this year. It had nothing at all to do with it.

The other relates to the verbal contract of 1915, for contributions of war articles to the Sunday edition of the paper and for syndicating purposes. It is claimed that this was a new and superseding contract. It was a new contract, but as such it was distinct and independent of the existing one and in no respect took its place. The written contract involved the services of Mr. Simonds as an associate editor of the Tribune, while the verbal bargain was for another, though kindred, service, for which he was paid additional compensation. The written agreement was for a fixed term, while the oral agreement was indeterminate, being terminable on a two weeks' notice, and in fact it survived Mr. Simonds' resignation. He at no time treated it as altering or taking the place of the editorship contract, for, even after he resigned as editor, he continued to furnish copy for the Sunday syndicate articles, and he stopped writing them only after giving the stipulated notice. Now, the performance of the two contracts is entirely another matter. The subject of the two, it is true, was of the same general character— Mr. Simonds' observations on current war conditions—and the work on the Sunday syndicate contract, it was agreed, was to be permitted to take as much of Mr. Simonds' time from his editorial duties as was necessary; in other words, it was to be done in connection with it as an adjunct to it but this it cannot be said affected the two contracts as independent undertakings. Now, to return to the argument: The insistence is that, the written contract having been superseded by the verbal contract, and that inasmuch as the latter provided for a termination upon two weeks' notice, which has been given, Mr. Simonds is free. But, as the argument is built upon a faulty premise, it must fall of its own weight.

I will then take up the causes that led to the break. Mr. Simonds was with the Tribune for three years, and as we read his complaint, there were two specific matters, and two only, that caused him to abandon his employer, and upon which he rests his refusal to further live up to his contract. Without particularizing in his answering affidavit, he speaks of disagreements from time to time, but he specifically adverts to but two matters. One was a difference of views as to the treatment, editorially, of last winter's coal situation, in connection with the shutting down of breweries and moving picture houses; and the other was over the preferential placement of an editorial upon the Colgate soap litigation to that of an editorial tribute to the late Congressman Gardner. These two brought on the acute situation that led to Mr. Simonds' resignation, so far as his affidavit discloses details. But we are supplied with particulars of other instances, which perhaps Mr. Simonds had in mind as having caused friction, by the testimony of Mr. Rogers, the vice president of the association, and one of its managers. Mr. Rogers speaks of an occasion early in the war when Mr. Simonds thought it wise policy that the Tribune advocate an embargo upon shipments to the Allies. There was some discussion and disagreement of views, but the matter was settled amicably. There were other differences. Mr. Simonds questioned the advisability of publishing reports concerning the conduct of our soldiers abroad, and criticized We publication of a Milan dispatch relating to war conditions, which may have been unfounded in fact, and there may have been some more, but they were all of matters upon which honest minds differed and which reasonable men adjust. In the course of the argument counsel said that Mr. Simonds was constantly irritated; that Mr. Garret, one of the associate editors,...