125 Mo. App. 307 | Mo. Ct. App. | 1907
Plaintiff brought this action to recover damages of the defendants for an alleged breach of contract. There was a change of venue and the cause was submitted to W. P. Cave, Esq., of the Randolph county bar, as special judge, without the aid of a jury. There was a finding and judgment for the plaintiff.
The action grew out of the following contract between the parties: “This contract made and entered into in duplicate, this thirty-first day'of January, 1905, by and between C. P. Vandiver, of Keytesville, Missouri, editor and publisher of the Chariton County Courier, a weekly newspaper printed and published in the town of Keytesville, Missouri, party of the first part, and J. K. Robertson & Son, a partnership firm composed of J. K. Robertson and James W- Robertson, of Keytesville, Missouri, proprietors of the Chariton County Signal, a weekly newspaper printed and published in said town of Keytesville, Missouri, parties of the second part, witnesseth: That for and in consideration of the sum of
Within a week thereafter defendants sold their paper for three thousand five hundred dollars to Mr. Mitchell to be published in Keytesville. It was published for one issue under its old name, but Avas thereafter published in Keytesville under the name of the “Chariton Recorder.” The contract of sale between defendants and Mitchell contained a clause whereby defendants covenanted Avith him that they would warrant and defend his right “to continue the publication of said newspaper under the name of the Chariton County Signal, and that in the event he should be restrained by any court of Iuav from „ continuing said newspaper business under said name this shall amount to a breach of warranty,” etc.
The true construction of the contract between plaintiff and defendants is the principal question for decision.. What was meant by the. clause that defendants agreed after the third of February, 1905, “to discontinue the publication of the Chariton County Signal at the town of Keytesville?” If we confine ourselves to
Defendants argue for the construction that defendants, themselves, were to cease to publish the paper— that it was the intention to take defendants personally out of the newspaper business in Keytesville, and not that the paper would not be published. The contract would then have to be rendered that defendants were to discontinue the business of publishing the paper. But it does not read that way; it reads that they will discontinue the publication of the paper, which means that they will discontinue the paper, that is, the issue of the paper, for a paper is such an institution as to discontinue its publication, is to discontinue its issue; and to discontinue its issue, is to discontinue its existence. There is no such thing as a newspaper without a publication, and, as just said, if Ave discontinue its publication we discontinue its existence.
It may very well be that if defendants had not been a party to the continued publication, they would not be personally liable — that is, that they were not legally bound to warrant to plaintiff that no one else would continue to- publish the paper. As for instance, if they had sold it with the intention in good faith, that it should be taken away from Keytesville and published, but that their vendees had nevertheless kept and published it there. But the petition guards that condition of case by alleging that defendants designed and in
There was presented by defendants’ counsel an argument which deserves additional notice; for it is a persuasive argument in cases involving the construction of contracts, as is shown by authorities in their brief. It is that of the reasonableness of our interpretation of the contract. It is argued that here was a newspaper plant which sold for three thousand five hundred dollars and yet plaintiff says that defendants agreed to discontinue the paper for the small sum of four hundred dollars paid them by the plaintiff. But it must be remembered that plaintiff does not say that the publication of the paper was not to be made at any place. Tt was only to cease at the one town. It could have been taken to, and its publication continued at, any other town of which there are several in Chariton county and in that immediate vicinity of the State. So the price paid for the mere discontinuance of the paper in one town, cannot fairly be termed so unreasonable as claimed.
It is next insisted by defendants that the recovery of four hundred dollars was more than the damages shown by the plaintiff. That insistence is combatted by the latter. But be that as it may, the case as made, shows that plaintiff paid four hundred dollars to defendants as a consideration for the discontinuance of the other paper in Keytesville and that it was not discontinued. He should therefore recover back what he paid. The rule is that he should be compensated for his outlay for which he received no return, and that, in this instance, is the money paid. [1 Sutherland on Damages, 1.]
The contract was not invalid as being in restraint
It is contended by defendant that the trial court gave declarations of law which are inconsistent with the finding of four hundred dollars in plaintiff’s favor. •In the first place it must be borne in 'mind that under well-recognized practice in this State, when a case is tried by the court without a jury, declarations of law ■count for much less and are scrutinized with a much less critical eye than would be instructions to a jury. And in this case, since we have found that the trial court gave a correct construction to the contract, we find little or no practical benefit in discussing the declarations of law to which we have referred. If the right view of the contract has been taken then, as already intimated, plaintiff was entitled to a judgment for the four hundred dollars which he paid. So, if we should concede all that has been said on the measure of damages or the mode of arriving at what they were, yet the judgment is for the party, and in the amount, that ..the law commands it should be.
It is manifest that the learned trial court set aside as not within the legal limits of the case, all special damage claimed in the petition and that he allowed
After a careful examination of the record in connection with the arguments of the respective counsel, we find ourselves without authority to disturb the judgment and it is accordingly affirmed.
