*1
requirement indicates
in the
statute
tax division
by
making power
unless
interpretation
that
an
the law
by
Comptroller
per
statute,
can
required
do
so
legislation
by
imposed on
elsewhere
him
form the duties
frequently
We have
at the
Government.
than
seat
interpretations
recognized
of such
cases
value
us, although
in the in
some diiference
there is
before
interpretation
terpretation
stаtutes
definite and
provisions,
positive,
constitutional
changed
provision
cannot be
clear
of the Constitution
upon
by wrong practice
interpretations
placed
it.
Bridge
County
v.
Commissioners
Pocomoke
Somerset
1,
462,
874; Mary
A.
Am.
Company, 109
Cas.
Md.
Brennan,
377,
Corporation v.
180 Md.
land Theatrical
not, however,
do
think it neces
Order with costs. affirmed ACADEMY ALUMNI ASSOCIATION S. NAVAL U. THE PUBLISHING COMPANY et al. v. AMERICAN Term, October 1949.]
[No. *3 April 1950.
Decided argued J., Collins, The cause was before Marbury, C. JJ. Grason, Henderson, Markell, Crook, Jr., John D. Alexander with and James R. whom Dennis, Rouse, Jr., were Samuеl K. John G. James Morton, Jr., brief, C. and Constable & Alexander on the appellants. for the appellee. for J.
William McWilliams J., opinion of delivered the the Court. Henderson, appeal judgment Superior This is from of the a Court City for Ameri- Baltimore favor The $17,811.09, Publishing Company, can in a case tried the court jury. without The court denied counterclaim filed a judgment appellant and entered costs. The unpaid alleged an suit was for balance $21,000.65, January profit-sharing under a be due contract dated publication in connection with the 30,1945 1946 editions of Graduates of the Naval Academy. counterclaim, amount, in an identical alleged profits on an miscalculation of the net was based (1) any plaintiff to allow de- due failure publishing costs, expenses, ductions for overhead and or of the defendant for the in- editions from 1938 to clusive, (2) proper the failure to allow deductions publishing costs of the 1945 and 1946 editions. The questions presented are per- whether the deductions are *4 missible under the series of contracts between the and, so, parties, they if whether are substantiated presented. the evidence Publishing
The Company American publisher is not a sense, engaged in the strict but is exclusively almost in advertising the solicitation sale publications аnd for by schools, alumni associations, issued athletic associa- tions, associations trade and the like. Academy The Naval performs Association the usual functions of an alumni organization, and for published some “Ship- has mate”, monthly magazine a devoted to naval affairs and ais “Register”, alumni, and the
activities standing, rank and by year, class roster of the alumni Prior issue. address, kept up to with each annual date Register without attempted publish to a to it had Prior losing proposition. advertising, it a found but Annapolis, Ogle in House acquired the to it when room in the Naval Museum. occupied one small it contract into written parties entered In 1935 the publishing sole whereby Company was constituted advertising ap- sale, distribution, to and agent-for advertising, soliciting Register. pear in the All letters sоlicited, form of the ad- and the prospects to be by the subject approval Association. to vertisements were agreed of adver- Company to attend to all details The arrange collections, billing for tising copy, and and copy. per After an at $1.00 sale advertising per cent of Company of 25 allowance solicitation, per cent proceeds for cost of advertising, pro- it was procuring in Company 5(d) ex- that “after the deduction vided in Item printing, overhead penses which shall include the cost advertise- expenses, profits from the sale of the net Registers profit net from the sale shall ments and the parties. Company equally divided between” the per allowed a bonus cent on all ad- was also agreed vertising $20,000. The Association excess of Register, compile and to assist for, advertising, furnishing signing solicitation leads forwarding letters, answers solicitation and sub- scription letters. contract, terms,
A new identical executed in was years. However, to run four another contract 1940, paragraph pro- two substituted of which publisher vided: “The Association shall be the Register, right and shall have the entire to solicit sub- for, sell, proceeds scriрtions and to retain the of sale of, Register.” copies Paragraph provided: said Company shall privilege of, “The have the exclusive agent for, soliciting selling shall be the sole adver-
155 by As- published the tising in all issues agreement.” Paragraph during the of this life sociation Company ex- its own provided: 6 shall attend at “The and pense to the solicitation sale all matters incident advertising Registеr, securing of advertis- of the the ing therefor, billing of copy and the and collection all by advertising.” payable purchasers the of said amounts Paragraph provided pay that the Association should per Company compensation”, (a) the “as entire 36% of cent all Association from the revenues received the advertising by Company, (b) sale of the an additional 5 per advеrtising $20,000, of cent of all revenue in excess (c) per proceeds and cent the “net from the sale * ** advertising computed subtracting to be fr.om the total revenues received from the Association advertising by Company (I) sale paid the amounts payable Company (a) or (b) to the under sections (II) paragraph, this the total cost and * ** printing publishing Register.” Para- graph provided that compile Association should Register.
A new contract was entered into in in substantial- ly terms, except the same percentage of adver- tising going revenues was reduced from per cent, to 35 “bonus”, and the or per- additional 36% centage of $20,000, revenues excess of was reduced per from to issue, cent the 1945 and eliminated 2% agreement thereafter. was to run until with option yearly rеnewal thereafter.
At testimony, the conclusion of the the court admitted testimony subject all taken exception, found that single series, contracts all formed a and held that should interpreted contracts light in the of the conduct parties. during period Since of ten Association never demanded reimbursement or credit any general particular its or expenses in connec- compiling tion with the publishing Register, contrary but on accepted paid the statements rendered, and bills the Court held that practical this was a *6 dealing. of a course of the contracts
construction that no fact auditor was also made Allusion filed, point until was raised the suit ever the Association “afterthought”. an Testi- was counterclaim that the agreed allow, mony 1944 the that in 1943 and crediting, clerical charged certain instead of but in Association, immaterial view held to be was testimony were “donations” that these undisputed “Shipmate”.' How- publication of loss from the to cover a allowable, ever, that these amounts were ruled the court court also $3,200. The reducing about the claim Hackeling, testimony Mr. that remarked counterclaim, “very weak” up was who set auditor might proper rule out his allocation been аnd “it have enough information ground did not have that he on the really, know, what was done.” , deciding, testimony Assuming, as to without that parties dealing was admissi- course of between the whole dealing ble, agree that this we do not course controlling question interpretation. The rule on only in where the words that it is cases well is established may ambiguous conduct affect their are that of a contract Guaranty Co., Products Sales Co. v. In construction. 409, 410, Urner, Judge speak- 678, 682, 127 A. 146 Md. argued Court, “It a different ing is for the said: required during interpretation of the contract is because long under its terms of a series settlements the course charges plaintiff deducted interest and other which upon the face value the accounts were calculated ambiguous agreement assigned. were If the had been charges, parties the conduct of the as to the basis of the question upon proper considered its could be uncertainty pro- in construction. But as there is no its to the amounts vision as the interest compensation computed, must be additional the sub- in mission of the defendant to erroneous exactions accounting previous should not control course meaning our decision as tо and effect of the contract liability regard ass'erted in this action.” The
157
recognized
Pennsylvania
v.
prerequisite was
Hurt
same
Co.,
etc.,
2
Threshermen,
Casualty
Md.
Ins.
Equitable,
402; Mattingly
v.
etc.
2d
Lumber
A.
Co.
Association,
403, 409,
458;
Md.
A. 2d
Saul v. Mc-
31, 36,
272, 274,
Intyre,
Md.
57 A. 2d
and Norman
Club,
Century
v.
Athletic
193 Md.
The relevant clause in the first contract is: “After expenses of the deduction the shall include cost the * * * printing, expenses, profits of overhead and the net ** equally shall be divided and in the later contracts proceeds the division is to “50 of be: the net from the % * * * advertising computed by subtracting of sale be * ** expenses printing and publish- the total cost and * ** ing Register.” short, equal the In there was an profits proceeds parties, of net or net division between the determining figure, and the net the and “overhead * * * expenses” expenses publishing”, or the “cost and fact, items, were to be deducted. a As matter no such except paid printer the amounts to the and the “dona- mentioned, tions” above werе ever deducted. can It hardly phrases be contended that these had reference solely expenses to the and not to the Association, clearly for the latter was described the as compiler publisher, and and the of the former by percentages gross were taken care of proceeds. ambiguity There is no such in the words toas warrant They their elimination from the сontracts. must be given ordinary meaning. their meaning “The contract cannot stretched parties beyond acts of the language what the will Restatement, Contracts, bear.” (e), (h), supra. comment § See also illustration 12. although But given the words must be their usual meaning, the burden is on Association, asserting counterclaim, produce to support evidence It it. throughout period of the whole undisputed thаt
is arrangements with Company made the contracts details. The Asso- printer attended to all of the and kept up a index to date card maintained and ciation 20,000 purposes, own alumni for its file some kept have this file whether it would it is conceded that The method Register published or not. had been copy Register published towas take a compiling the year, up put it it on previous сut sheets for the copy file. was sent from the This make corrections finally galley page proof, printer, returned proof office force. Since no time proof, read accurately kept, impossible to determine it is sheets were activity. chargeable to this amount compilation work, the Association to this In addition get collecting trying members, engaged in new subscriptions dues, selling to both the monthly maga- bringing “Shipmate”, out latter as a funds, running employment administering an zine, trust Ogle acquisition House, service, and, run- since ning and restaurant service. The at- club with bar Hackeling percentage of a fixed tempted allocation Mr. Regis- expense publishing the activities of total arbitrary, To ter, the witness admitted. perfectly is *8 inaccuracy, only necessary it is to cite the demonstrate heading figures the under the allocated to the $3,905.44, from These varied to “office salaries”. $475.75 spent compilation although the it obvious that time is year. Similarly year relatively from to we constant was “stationery supplies” in the of a item find variation says trial court “He to As the said: from 50c $733.16. course, heresay people which, of is to lot of talked a he — records, that, no but what he believes on —and based ought estimate, he thinks these accounts to be a reliable * * * way. only testimony The made another have been to employees did which seems to me to various as to what Coney’s testimony, persuasive is Admiral at all period the last two weeks of the confined to whole is think, court, did trial years.” as that the We of ten of attempted In absence allоcation untenable. is guesses sheets, or the level time other evidence above actually incurred, expenses counterclaim as properly disallowed. affirmed,
Judgment costs. with dissenting following opinion. J., Collins, delivered in this case primary question before this The Court Association, Academy Alumni is whether the Naval U. S. publishing appellant, deduction for is to a entitled pro- expenses undеr the 1940 and 1945 contracts expenses for the deduction of “the total costs and vided publishing Register.” printing said issue printing publishing, pointed The appellant, essentially out are different. Accord- English Dictionary, ing VII, page 1380, to the Oxford Vol. “* * * print application paper, any is or vellum substance, press types, similar or machine of inked plates, bearing designs.” blocks or characters or publishing page definition of in the same volume at * * issuing is “action or business a book or books *.” The difference between these two terms is cited in the Berry, 1920, Daly v. 45 N. case D. 178 N. W. page 106,
at
it
printing
where
is said:
“Publication and
signification.
each have a well understood
Publication
known,
means make
public
large,
a notification
at
by words, writing,
printing.
either
or
Printing means
impress of
upon
letters or characters
рaper
or
implies
other substance. The first
convey-
means
ing knowledge
notice;
or
the second implies a mechanical
Any means,
act.
therefore, which
give
would
notice to
the public
any
matter desired to
brought
to their
knowledge would be
publication.”
classed as
See also
v.
Haban
Mortgage
Suburban Home
Co., Ohio App., 57
*9
97, 100,
N.
2dE.
Bass,
484,
State v.
1903, 97 Me.
160 615, Baltimore, Md. under
In the of Dashiell v. 45 case property in Baltimore were the statute the owners of paving. The assessment assessed with a tax for street In paving.” expenses of street include “the was to establishing charges for this held that that case Court clearly surveying advertising came grade, for expenses” also provided in the statute. See within “the 153, 1915, 406, N. Johnson, E. Fillmore v. Mass. Slocum, Crops Canning Co-op. v. Ass’n York and New 30, 1925, Y. 534. 212 N. S. 126 Misc. past appellee’s construc contention that
As binding parties is both tion of contracts charge years and ex previous for costs no was made allowed, a penses publication, these cannot now be presented case question to this in the similar Court Company, Guaranty 14 v. of Product Sales 678, plaintiff, a In that Md. 410. case A. agreed accounts loaning purchase certain company, defendant, Company, fоr Product Sales from 100% interest, thereof, percent value less “77 net face acceptance paid in cash face value shall be of the net * * outstanding money Also, percentage on specified company. of the loan paid for the services towas be compensation was the amount This Court held that on value and not computed on the actual 77% although offered evidence value, plaintiff had face had sub paid face value and had on that the defendant in held to an erroneous what this Court mitted to accounting previous under terest exaction in settlements years. period erroneous extending of four Such over a figured compensation had been in which statements defendant, Com paid the Product Sales been had month, yеar year, after four pany, month after any part of This protest on the the defendant. without Judge Urner, through 146 Md. at in that case said Court argued page A. at 410: “It is that a differ page required interpretation of the contract is because ent long during of a series settlements the course under charges interest and other deducted terms its *10 plaintiff upon the were calculated the face value the assigned. agreement If accounts had been the ambiguous charges, were toas the basis of the the conduct parties upon question could be considered the as proper to its construction. But as there is no uncer- tainty provision in its as to the amounts which the compensation interest and additional computed, must be the submission of the defendant to erroneous еxactions in previous the accounting course of the should not con- trol our meaning decision as to the and effect of the con- regard liability in tract to in the asserted this action. Insurance, Security Doll, Citizens’ Fire & Land Co. v. 360; Rep. Linthicum, 35 Md. 6 Am. Callahan v. 43 Md. 97, 103, Rep. 106; 20 Am. Pressed Co. v. Steel Buffalo Kirwan, 60, 66, 628; 548; Md. 113 A. 13 C. J. 6 R. C. L. 854.” I do not Academy think that because the Naval Alumni Association failed to expenses discover that the publication had not years been for deducted some of the under the 1940 and 1945 prepared contracts accounts appellee, the it is now barred recovering from for expenses. those appellee
The amount sued for $21,000.65. the appellee At calculating the trial admitted that in the net proceeds give appellant it had to failed credit for amounting $3,189.56. сertain items to The claim was thereby $17,811.09. reduced $3,189.56 to This amount included an item of for help clerical $625 Associa- compiling Register tion in $1,389.64 for 1944 and help for clerical compiling the Association in Register for appellee 1943. The claims that these were by appellee donations made appellant. This is de- by appellant. nied A 3, 1946, letter of June from Mr. Guy Moore, appellee’s manager, Harry office England, one of the appellant’s officials of corporation, shows recognized these were appellant the cost to compiling Registers. Part of the letter follows: February “Sometime back in you I talked to phone on the you and asked to let us know the compiling cost of Register. spoken I you have couple about it a says hе has asked then and Mit of times since [Collins] appellant If you figure various times.” at Regis- compiling charge expenses was entitled to Association it is clear that ter 1943 and help in com- charge for clerical should be entitled years remaining under piling for the be for the which would 1940 and 1945 contracts *11 1942, publish To 1940, 1941, 1945 and 1946. containing twenty large in this case as as the one involved requires much addresses оf course thousand names and reading. proof The amount allowed clerical work and having $1,389.64 for and appellee $625 been years average two allowed for those amount opinion I $1,007.32. would am therefore of claim at least appellant be allowed a counter should 1940, 1941, $1,007.32 sum of each of the this 1946, for not which this allowance was made, $5,039.10. or a total of This would reducе the appellant $12,771.99. part I think of the claim Association, postage, officers of salaries stationery telephone telegraph supplies, charges part also allowed as should publication, proof there is not in this but sufficient expended items. There- of the amounts for those case fore, could at this time but these amounts not be allowed testimony I remanded for further think the case should be help. as to of clerical these costs also as the costs