173 Iowa 174 | Iowa | 1915
At the time of the transaction out of which this litigation has arisen, the defendant Stearns owned the “Sheldon Mail”, a weekly newspaper published at Sheldon, Jowa. His subscription list not being large enough to enable him to compete for the county printing, he undertook to increase it by inaugurating a so-called “popularity contest”. According to the plan of the contest, candidates entering it were expected to canvass for both new and renewal subscriptions to the paper, and to collect past due subscription accounts, and were to be credited with “votes” on the basis of the following scale: one vote for each one cent collected on past due accounts, two votes for each one cent collected on renewal subscriptions, and five votes for each one cent collected on new yearly subscriptions. The candidate receiving the highest number of votes thus obtained was to receive ■ a new Ford automobile. In publishing this offer and plan, the defendant further announced that “no votes can be bought or otherwise Secured” except in the manner above outlined. Candidates were directed to secure the necessary blanks at the defendant’s' office. The contest was to open on August 2, 1912,
“BALLOT.
“Renewal .............. Amount!............
‘ ‘ Arrears ............... Amount $............
“New .................. Amount!............
'“Total Votes ........... Total Amount.........
“Send paper to................................
“Address .............................
“Votes for...................................”
It does not clearly appear which of these forms was to be used in the final count. It is probable, however, that the latter was used for that purpose,'while the defendant retained the former as his own cheek upon the correctness of the account. We think, however, that it is entirely immaterial which form of blank was intended to be voted; as both, when filled out, contained substantially the same matter. On Thursday, October 17, 1912, the plaintiff, and presumably the other contestants also, appeared at the defendant's office to report their work up to that date. Up to and including
Upon the matters thus far stated, there is no substantial dispute in the record. Other related facts which are the subject of more or less controversy will be mentioned later.
The plaintiff’s petition sets out the circumstances which
The defendant denies the petition, and affirmatively pleads the delivery by him of the ballot box to Collins on the evening of October 17, 1912, as already stated, and further says that such delivery was made with the statement on his part that “my responsibility ceases”; and that thereafter neither the box nor its contents were in his possession or under his control at any time until the contest was over and the result declared. Tie further alleges that the judges of the contest counted the ballots, “using their own discretion as to what ballots should or should not be counted, and at no time were advised or directed by said Stearns” with reference thereto. It is also alleged that the contestants, including the plaintiff, “expressly, or by implication through acquiescence, consented to the delivery of the ballot box and contents to the judges and made no objection to said disinterested parties as judges of said contest, and, by becoming such contestants, consented to their acts in counting said ballots as they should see fit”. A demurrer was filed to the affirmative defense so pleaded, but does not appear to have been ruled upon.
Upon the trial, the testimony, in addition to the conceded facts already mentioned, related very largely to what took place on the evening of October 19, 1912, when the votes were canvassed. This testimony, when given the most favorable construction of which it is fairly susceptible in support
The issues having been submitted to the jury, a verdict was returned for plaintiff for $693.30. On the same day, the plaintiff voluntarily remitted all of said amount in excess of $666.50, and judgment for that amount was entered, and defendant appeals.
The matter so pleaded clearly constituted no defense to plaintiff’s action, and the court did not err in omitting to mention it to the jury. Defendant could not rid himself of the obligation assumed in organizing the contest and obtaining the services of the candidates by putting the box into the hands of a third person and saying, “Here my responsibility ceases.” Much less could he thereafter wink at the easting of large blocks of votes in violation of the rules and regulations which he himself had prescribed for the contest, and in reliance -upon which, plaintiff and others had performed for him a valuable service. Neither could plaintiff’s acquiescence in the selection of the canvassers and the delivery of the ballot box into their hands deprive her of the right to protest the counting of ballots which show their invalidity upon their face. The affirmative matter pleaded in the answer is at most a pleading of evidence, and not the statement of a defense.
This does not state the correct rule. The plaintiff’s petition alleges facts which, if true, constitute a contract relation with the defendant and a violation of such contract on his part. She also alleges a conspiracy and fraud, by which she says defendant has sought to deprive her of the fruits of her contract with him. Now, as we have had frequent occasion to suggest, the fact that a plaintiff has alleged more than he needs to state to constitute a cause of action does not put upon him the burden of proving everything stated in his petition. If he proves alleged facts which do constitute a cause of action, it is immaterial how many other allegations are unsupported by evidence.
No request was made for the court to so x charge and, as the instructions upon this issue were correct, so far as given, the omission was not erroneous. Fraud is not a word of such technical significance as to require the court, in every case where it is used, to define it. Some reliance may be placed upon the intelligence of the average juror.
VI. It is said that Instruction No. 4, relating to the allegation of conspiracy, is confusing and misleading. We do not find it open to that criticism. The paragraph may not be faultless in structure or expression, but it is not difficult to comprehend the proposition stated by the court.
Other objections to the court’s charges were not made in proper time; and even if this'were not the ease, we find no error in them.
“Ballot.
‘ ‘ Renewal............... Amount $............
“Arrears ............... Amount $............
*185 “New ........... Amount $.....:....
“Total Votes 5,000 Total Amount $10.00
“Send paper to................................
“Address .............................
“Votes for Grace Cole.”
Omitting the unfilled blanks, the ballot is simply “Total Votes 5,000. Total Amount $10.00. Votes for Grace Cole”, without any showing or memorandum of any kind as to the account upon which the money was paid, or the identity, name or address of any subscriber to whom the paper was to be sent, or of the person casting the vote. If this was a valid ballot, 'then there was nothing to hinder the enthusiastic supporters of the candidates from voting bank bills instead of the prescribed ballots, so long, as the voter pinned to the money a memorandum of the ,name of his candidate. Under such circumstances, a contest or competitive effort to enlarge the bona, fide subscription list of a newspaper, a purpose which in itself is entirely legitimate, degenerates into a mere scramble, in which only “money talks”, and “everything goes”, as long as the supporters of the candidates are willing to demonstrate their loyalty in terms of cash. To uphold such a proceeding as legitimate is to say that candidates entering into such contest in good faith, and giving to it weeks or months of effort in strict accordance with the offered terms, must expect to- see the promised compensation carried off by any person who may appear at the last moment and cast the necessary amount of money into the balance. Without attempting to discuss the moral influence and tendency of these enterprises as they appear to common observation, we shall assume that, when fairly conducted, according to the terms and conditions announced at the outset, a contest such as the defendant inaugurated is open to no legal objection. It follows, therefore, that the publisher offering the prize and the candidates entering the contest assume mutual obligations and duties which the law will recognize and enforce, and
Without going further into the record, it is enough to say, in conclusion, that plaintiff made a case for the jury, and the verdict finds abundant support in the record. That the questions presented are practically all of matters of fact is recognized by counsel, who, except upon some collateral propositions, have cited no authorities for our consideration. Indeed, the law applicable to the issues is too familiar and elementary to justify discussion.
There is no reversible error in the record shown, and the judgment of the district court is — Affirmed.