Ahern v. Standard Life Insurance — 32 N.Y. Super. Ct. 441

Majority

p. 441

SIMEON J. AHERN, Plaintiff and Respondent, v. THE STANDARD LIFE INSURANCE COMPANY, Defendants and Appellants.

[Decided June 4th, 1870.]

Headnote

The act of sending a business advertisement to a newspaper for publication, without placing any limit on the time during which it is to be published, authorizes its insertion until notice is given to stop, unless the character of the advertisement in itself indicates that it is not to he published after a certain time.

If evidence which has no bearing on the issue left to the jury, and is not of a nature to affect their minds to the prejudice of the unsuccessful party, has been improperly admitted in evidence, such improper admission is not sufficient to call for anew trial, unless the court has founded either wholly or in part on it some proposition of law adversely to the unsuccessful party.

Letters written by a president of a corporation, when evidence against the corporation.

Before Barbour, C.J., McCunn and Jones, JJ.

This was an appeal from a judgment.

This case was tried before Mr. Justice Fithian and a jury.

The plaintiff was the publisher of a newspaper called the “ Gazette,” and sued the defendants to recover for publishing an advertisement of the defendants.

The defendants claimed that the advertisement was to be published for a limited number of times, while the plaintiff claimed it was to be published “ until forbidden.”

Several exceptions were taken on the trial to the admission of evidence, which are referred to in the opinions of the court.

The jury found a verdict for the plaintiff for the full amount claimed, and the defendants appealed.

Mr. Livingston K. Miller for appellants.

The evidence of the letter was not good for a/ny thing. It was not competent thereby to establish any liability of defendants.

p. 442

Defendants are not liable for an unofficial and unauthorized act of their president (Bruce v. Lord, 1 Hilton, 247; Soper v. Buffalo and Rochester R. R. Co., 19 Barb., 310 ; Corn Ex. Bank v. Cumberland Coal Co., 1 Bosworth, 436).

The court erred in admitting the evidence of custom, for it is evident the witness was not competent to testify to such custom; that defendants had no knowledge of it; and that there is no such custom proved.

Custom cannot be proved by a single witness, unless possibly where his evidence is very full, thorough, clear, and explicit, as -it was not in this case (Dawson v. Kittle, 4 Hill, 107 ; Goodrich v. Ogden, 4 Hill, 104 ; Wood v. Hickock, 2 Wendell, 501).

The court erred in refusing to charge that the plaintiff, to recover, must prove a custom in regard to an advertisement being published until forbidden, when there is no time specified, and also that one witness was not sufficient to prove such custom (Greene v. Waggoner, 2 Hilton, 297; Hollister v. Bender, 1 Hill, 150 ; Reynolds v. Dunkirk R. R., 17 Barb., 613 ; Bentley v. Bentley, 7 Cowen, 701; Johnson v. Hudson River R. R., 5 Duer, 21 ).

Mr. Francis Byrne for respondent.

Evidence of a “ general custom ” is always proper; and the objection thereto and exception thereupon are untenable'.

The objection to the reading of the letter, as being a “ confidential ” communication and exception, etc., are also groundless.

It was a question of fact whether the publication was limited by the appellant, and the learned justice left the facts to the jury, and the jury have determined it was not; besides, two copies of the paper were sent to the president and secretary, and the president promised Mr. McDonald to pay respondent.

The requests to charge were properly disposed of. If there was one error, the exception is too extensive.

The charge of the learned justice was lucid and fair, and the

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law properly expounded by him; and the exceptions to the parts are without legal support.

By the Court:

The act of sending a business advertisement to a newspaper for publication is, in the absence of instructions to the contrary, a direction to publish it in each issue of the paper until it is ordered to be stopped.

This is one of those propositions which depend for their support solely on the conviction which the fair statement of them carries to the mind of their correctness; and which are incapable of being enforced or supported, to any great extent, by a train of reasoning.

There is, however, one consideration to be urged in its support. The object of such an advertisement is to draw the attention of the public to the business advertisement; a single insertion would have comparatively so slight an effect toward attaining the object in view, that the idea of such a limit cannot be supposed to have entered into the mind of the party.

It may be, as suggested by the chief justice, that in some instances the character of the advertisement will, of itself, operate as a limit on the running of the publication. That question, however, is not now presented.

The foregoing views dispose of most of the questions raised on the appeal in this case.

Under it a charge that the plaintiff could not recover without proving it to be a custom that, in absence of directions to the contrary, an advertisement is continued until forbidden, would have been erroneous. Consequently there was no error in refusing so to charge.

So, also, under it the burden of proving that a limit was placed on the time of publication devolved on the defendants, and the exception to the charge to that effect is not well taken.

Likewise under it the proof as to a custom is wholly immaterial. That proof was introduced for the sole purpose of establishing that, where there is no instruction to the contrary, an

Concurrence

p. 444

advertisement is to be continued until it is stopped. As that is, as above held, the necessary effect of sending a business advertisement to a newspaper for publication without any accompanying directions as to how often or for how long it is to be inserted, the proof of custom was wholly unnecessary, and had no effect whatever on the case or on the verdict, since it was conceded that the advertisements had been sent for publication, and the only question was, whether any, and if so what, directions were given respecting their insertion. The evidence of custom had no bearing whatever on that issue, and consequently it could not, by any possibility, have affected the verdict.

Therefore, even though there may have been error in its admission, that error does not call for a reversal.

Indeed, the only question of fact submitted to jury and passed upon by them was as to whether the advertisements were limited as to the times and length of insertion. That question was fairly submitted to the jury, and the evidence is sufficient to support their finding.

The remaining exceptions are to the reception in evidence of a letter written by the president of the defendants, and to the refusal of the judge to charge, as requested, that the burden of proof is on the plaintiff to establish the claim by a preponderance of evidence.

The letter was written by the president in the course of his business as such president, and, in the absence of any restriction contained in the charter or act of incorporation of the company, or the by-laws thereof, or of the general statutes, on the power of the president to make a contract of this character, was competent evidence.

As to the request to charge: the only issúe left to the jury was one as to whether the burden of proof rested on the defendants. ..To charge as requested would consequently have been error.

Judgment affirmed, with costs.

(concurring). I think the objection of the defendants to the question touching the general custom of newspaper offices in regard to the period during which advertisements are inserted, where no time is specified, and their exception to its admission, were well taken. Evidence of the custom of newspaper publishers in that regard would no more tend to establish a valid custom, binding upon persons dealing with them in ignorance thereof, than would proof of a contrary custom on the part of advertisers. The plaintiff might, perhaps, have been entitled to prove a general custom as between publishers and advertisers, and within the knowledge of each, as a class, by which their dealings with each other in this respect were regulated, but he had no right to prove his custom, and that of other publishers, unless such evidence was connected with, or followed by, proof that such custom was known to the defendants, or, at least, that the custom was general, and was so well known to and universally acquiesced in by advertisers, in their dealings with the former, that the defendants might well be presumed to have knowledge of such usage.

But, although the admission of the testimony in question was erroneous, I do not think the defendants were prejudiced or injured thereby. For it is a rule of common sense, and therefore of law, that where an advertisement is handed to the publisher of a periodical newspaper, with a general direction to publish the same, and without limitation as to the period during which the publication shall be continued, such publisher has a right to assume that the advertiser desires to have the same,inserted in each paper, as published, until he shall direct it to be discontinued, unless the advertisement is itself of such a character that the publisher would be bound to assume that the advertiser designed to limit its publication to a certain period; such an one, for instance, as an advertisement of a sale or other act, to take place on a certain day. The advertisement itself, in the latter case, would, of course, be sufficient to inform the publisher that the advertiser could not desire to have the publication

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continued beyond that day. The application of this rule of law to the facts proven, therefore, rendered the evidence touching the existence of a custom among newspaper publishers, which was in conformity with the rule of law, wholly unimportant; and, for that reason, its admission did not tend to the prejudice of the defendants.

Subject to these remarks, I concur in the opinion that the judgment should be affirmed.