Vandiver v. J. K. Robertson & Son

ELLISON, J.

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 *311 four hundred dollars ($400) to them paid by the said party of the first part, the receipt of which is hereby acknoAvledged, second parties agree to discontinue on and after the third day of February, 1905, the publication of said Chariton County Signal at said town of Keytesville, Missouri, and at no time during the time that said Vandiver may be in the newspaper business at said town of Keytesville to resume the publication of that or any other neAvspaper at said town of Keytesville, nor to engage in or be in any way interested in any newspaper published in said town. It is further agreed that said parties of the second part shall not keep an editor at said town of Keytesville nor keep or maintain any public office therein in connection Avith any newspaper that they may OAvn or in Avhich they may be interested at any place other than said town of Keytesville. In witness whereof,” etc.

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 *312 the language of the parties and their acts, which we should do when they are not ambiguous, we find that there was a paper being published and that defendants -agreed to discontinue its publication. This they did not do, for they became parties to its continued publication by selling to another with that avowed purpose. They are therefore, to all intents and purposes, continuing the publication of the paper, for they sold it for that purpose and agreed to protect and defend their vendee in the publication. The publication of the paper has not been discontinued.

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 *313 tended to have the publication continued in Keytesville, and the evidence sustains that view, in that defendants by their contract with Mr. Mitchell agreed that he should so continue at that place and that they would protect him in it.

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 *314 of trade. Contracts in restraint of trade are made invalid from considerations of public policy, and when the contract is so limited as that its tendency will not be to inflict a loss upon the public, it does not fall under the ban of that rule. So it has ever been held that while' ■an absolute contractual prohibition would be invalid, yet where the restraint is upon pursuing the trade, or avocation, within a limited locality only, there is no objection to it. [Peltz v. Eichele, 62 Mo. 171 ; Gill v. Ferris, 82 Mo. 156 ; Gordon v. Mansfield, 84 Mo. App. 367 .] In the latter case the authorities are examined at length. So therefore the contract in this case being only intended to restrain the publication of a single newspaper in one community and its publication being left free to its owners in any other place, it was not invalid.

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 *315 to the plaintiff the amount which he paid out and for which he did not receive any return.

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.

All concur.