Press Publishing Co. v. Ehrich

morning or evening paper, respectively, a larger number of columns of advertisements than he gives in such a month to the corresponding Sunday,, week-day morning or evening editions of ‘The World,’ respectively then such advertiser -shall not be entitled, for such month, to the extra ten per cent.. (10%) space discount upon his business in the editon in which such deficiency occurs, unless he makes up such deficiency in the course of the contract year,, or unless such deficiency is made up by the other Advertisers hereunder, in the aggregate in the course of the contract year.”

The defendant’s advertising showed a substantial deficiency, under this clause, for each month of the contract year. Taking all five advertisers together, however, there was an aggregate excess for the year of 11,607 lines. The question is whether defendant is entitled to treat this excess as making up any part of his deficiency, so astb entitle him to the space discount for any part of the year. The clause above quoted takes a month as the unit of calculation. The advertiser is entitled to the discount if he shall “in any month” give the plaintiff’s newspaper as much advertising as he gives to any other-newspaper, and he forfeits'the discount if he gives “in any month”1 more' advertising to another paper than he gives to plaintiff’s. It seems to be clear that it was intended that each month should be-considered separately and the discount allowed or withheld according to the relative amount of advertising during that month. But provision is made whereby the advertiser, even if he fell behind' in any month, may still be entitled to the discount for that month. He may be so entitled if (a) he makes up such deficiency in the course of the contract year; or (b) such deficiency is made up by the other advertisers hereunder in the aggregate in the course of the contract year.

I think that it was the clear intention of the contract that if am advertiser showed á deficiency for any month, and yet at the end of the year showed an excess in the aggregate equal to or exceeding the month’s deficiency, the excess should be counted as making up the deficiency. If this be so_, it must be equally true that the excess furnished by all the advertisers in the aggregate should be counted towards making up the deficiency. In view of the care with which it is provided that the discount is to be allowed upon each month’s computation and comparison of advertising, I can see no foundation for the claim made by plaintiff ’and sustained by the court below, that, in order to take advantage of any excess at the end of the year earned by the other advertisers, the excess must be equal to the defendant’s-deficiency for the whole year. On the contrary, as it seems to me, defendant is entitled to avail himself of the aggregate excess to make up the deficiency in his own advertising for any month or months-in which such deficiency shall not exceed the aggregate at the end' of the year. As has been said, the aggregate excess of all the advertisers for the year was 11,607 lines of advertising. The defendant’s deficiency in the month of January was more than this, but in the-month of February it was less, being 10,927 lines. In my opinion he was entitled to a credit as against this deficiency of an equal number of lines from the aggregate excess of the other advertisers, and the judgment should be modified accordingly. This view appears to-accord with the practical construction given by the plaintiff and some-

The judgment should be modified'in accordance with the view herein expressed, and, as modified, affirmed, without costs to either party.

INGRAHAM and McLAUGHLIN, JJ., concur. LAUGHRIN and HOUGHTON, JJ., dissent.