Wachtel v. National Alfalfa Journal Co.

• Decision Date: 16 March 1920
• Docket Number: 33366
• Citation: 176 N.W. 801,190 Iowa 1293
• Parties: CLARA WACHTEL, Appellant, v. NATIONAL ALFALFA JOURNAL COMPANY, Appellee
• Court: Iowa Supreme Court

176 N.W. 801

190 Iowa 1293

CLARA WACHTEL, Appellant, v. NATIONAL ALFALFA JOURNAL COMPANY, Appellee

No. 33366

Supreme Court of Iowa, Des Moines

March 16, 1920

REHEARING DENIED FEBRUARY 17, 1921.

Appeal from Chickasaw District Court.--H. E. TAYLOR, Judge.

ACTION for damages, resulting in a judgment in favor of plaintiff for nominal damages. She appeals.

Reversed.

R Feyerbend and M. F. Condon, for appellant.

Hurd Lenehan, Smith & O'Connor, for appellee.

STEVENS, J. WEAVER, C. J., LADD and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

The defendant, The National Alfalfa Journal Company, is a corporation, having a place of business at Sioux Falls, South Dakota. Some time prior to April 2, 1917, defendant offered prizes to persons residing in 42 counties of this state who would engage in a contest for subscriptions to the Alfalfa Journal. The territory was divided into 4 districts, and 49 prizes were to be awarded to contestants receiving the largest number of votes in each district, based upon the number of subscriptions obtained, and also a Hudson Super-Six seven-passenger touring car, valued at $ 1,650, a grand prize to the contestant receiving the largest number of votes in the 42 counties, making 50 prizes in all. A capital prize, together with a large number of minor prizes, was offered to each of the 49 successful contestants in each district, as follows:

To the one securing the largest number, an Allen automobile, valued at $ 850; to the one securing the next largest number, an upright piano; "likewise, in each district a $ 150 phonograph will be awarded to the candidate who secures the third largest number of votes; a $ 100 diamond ring to the candidate who secures the fourth largest number of votes; a $ 75 diamond ring to the fifth; a $ 25 jewelry set to the sixth, seventh, eighth, ninth, tenth, and eleventh; a $ 20.00 gold watch to the twelfth, thirteenth, fourteenth, fifteenth, and sixteenth; Carola phonograph to the seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, and twenty-sixth; a 'Paragon' 34-piece silver set to the twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, and thirty-first. An Eastman kodak to the thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, and forty-first; and a 26-piece set of Roger's silverware to the forty-second, forty-third, forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, forty-ninth, and fiftieth."

The voting power of each subscription decreased as the end of the contest, which was to open April 2d and close June 16th, approached. From April 2d to May 12th, each subscription obtained for one year entitled the contestant to 3,000 votes, for three years, 6,000, and for five years, 15,000; from May 14th to June 2d, for one year, 2,000 votes, three years, 4,000, five years, 10,000; and from June 2d to June 16th, for one year, 1,000, three years, 2,000, and five years, 5,000.

Plaintiff accepted defendant's offer, entered the contest, and continued to work for subscriptions until April 28th, when defendant advised her by letter that the management had decided to abandon the contest in Districts 3 and 4. Plaintiff resided in the latter district, but each contestant had the right to secure subscriptions anywhere without, as well as within, the district. At the time the contest was closed in District No. 4, on April 28th, plaintiff stood first in the number of subscriptions obtained, and was entitled to more votes than any of her competitors. Each contestant failing to obtain one of the prizes was to secure a commission of 10 per cent upon the amount turned in on subscriptions. Plaintiff alleged in her petition that, on account of the termination and abandonment of the contest in District No. 4, she was deprived of a right to participate therein, and win one of the prizes offered, and asks damages in the sum of $ 850.

Defendant in its answer admitted that a contest was begun, as alleged, that plaintiff obtained subscriptions and forwarded $ 17 in cash to defendant, and that she was prevented by the discontinuance of the contest from further participation therein; but denied that she is entitled, in any event, to recover more than nominal damages. The court awarded her nominal damages, together with 10 per cent of the amount received on subscriptions procured by her. Count 2 of plaintiff's petition will be referred to later.

I. While the facts involved in this case, together with the demand for damages for the breach of the contract alleged, are somewhat unusual, its decision is controlled by familiar elementary principles. Two reasons are urged by appellee why plaintiff can recover only nominal damages: (a) That the damages sought are too remote and speculative, and could not have been within the contemplation of the parties to the contract; and (b) that they are contingent, speculative, uncertain, and incapable of being measured by a jury.

The manifest purpose of the contest on the part of the defendant was to increase the circulation and earning power of its paper. Similar contests are frequent, and, no doubt, often, if not usually, result in substantial profit, directly or indirectly, to the promoter. The plan contemplates that the friends of each contestant will be generous in subscribing for the paper, and more or less active in procuring others to subscribe therefor, in the interest of local contestants. The purpose for which plaintiff engaged in the contest was doubtless to win one of the valuable prizes offered. As, therefore, the purpose of the contest upon the part of defendant was pecuniary profit, and of plaintiff to win a prize, both must have known and contemplated that a breach of the contract which would deprive her of the right to do so might result in substantial damages, depending largely upon the situation at the time of the breach. If only nominal damages are recoverable because of remoteness, it would make no difference whether the breach occurred in the middle of the contest or the day before it was to close. The result would be the same. The engagement of plaintiff, although it might result in disappointment, was not an idle one. It was evidently in good faith, for the purpose of aiding defendant to extend its subscription list, with whatever benefits might accrue therefrom, and to obtain, if possible, as compensation, a valuable prize. While no case exactly like the one at bar has been called to our attention, we are not entirely without precedent to sustain our conclusion that the damages are not too remote to permit recovery for the breach of the contract.

The defendant in Chaplin v. Hicks, 2 King's Bench (1911) 786, a celebrated theatrical manager, was continuously beset with numerous applications of actresses for employment. He conceived a plan by which he was to select 24 photographs from the number offered, have them published in a newspaper, and the readers thereof were to select 12 therefrom as winners, to the first 4 of whom an engagement would be given for 3 years at 5 pounds per week; to the second 4 for 3 years, at 4 pounds per week; and to the third 4 for 3 years at 3 pounds per week. The response to the announcement in the newspaper was prompt, and about 6,000 photographs were sent in. The plan as outlined was modified, so that the defendant, with the assistance of a committee, selected about 300 photographs to be published in the paper. The United Kingdom was divided into 10 districts, and the photographs of the selected candidates in each district were submitted to the readers of the newspaper therein, who were given the privilege of choosing by their votes whom they considered the most beautiful. The 50 photographs were then published in the newspaper, together with a ballot paper, on which the reader registered his vote for the particular one he preferred, adding signature and address. Plaintiff appeared first in her particular section, as one of the 50 eligible contestants. The defendant caused a letter to be written to plaintiff, asking her to call at a place named, on the afternoon of January 6th, to see him. The letter was sent to the address given by plaintiff in her application, and delivery thereof sought on January 5th. Plaintiff was, however, at the time filling an engagement at another place, to which the letter was forwarded; but it failed to reach her in time to enable her to keep the appointment, thereby preventing her from competing as one of the 12 for the employment. Failing to procure another appointment with the defendant, she brought suit for damages, alleging that defendant breached the contract by failing to take reasonable means to give her an opportunity to present herself for selection. The jury awarded damages to the amount of 100 pounds. Counsel for defendant contended that the damages sought by plaintiff could not be recovered, for the reason that same were too remote, and impossible of admeasurement. The court said:

"As regards remoteness, the test that is generally applied is to see whether the damages sought to be recovered follow so naturally or by express declaration from the terms of the contract that they can be said to be the result of the breach. This generally resolves itself into the question whether the damages flowing from a breach of contract were such as must have been contemplated by the parties as a possible result of the breach. Now, the moment it is admitted that the contract was, in effect, one which gave the plaintiff a right to present herself, and to take her chance of getting a prize, and the moment the jury find that she did not have a reasonable opportunity of presenting herself on the particular day, we have a...