Minnesota Tribune Co. v. Associated Press

77 F. 354, 1896 U.S. App. LEXIS 2965

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: November 16, 1896
• Status: Published

Opinion

LOOHREN, District Judge.

The above-entitled cause came on regularly for hearing upon the pleadings and evidence, at the court j'oom in the federal building at St. Paul in said district, on Saturday, the 3d day of October, A. D. 1896, in the June, 1896, general term of said court in said Third division of said district, and the complainant and defendant appeared by their respective counsel and were heard. From the admissions in the pleadings, and the evidence presented, it appears: That all the allegations contained in the subdivisions numbered 1, 2, 3, 4, and 5 of complainant’s bill of complaint are true, as therein stated and set forth. That Exhibit A, attached to said bill of complaint, is a true and correct copy of the contract entered into between the complainant and defendant on the 2d day of March, 3893, and still in force; and that Exhibit B, attached to said bill of complaint, is a true and correct copy of all the by-laws of the defendant relating to or regulating what newspapers or publishers of newspapers were entitled to receive the news reports, furnished by the defendant, at the time of making said contract, and at all times since and hitherto. That the Journal Printing Company is, and at all times stated in said pleadings has been, a duly-organized Minnesota corporation, with its principal place of business in the city of Minneapolis, in said state; and that since the 1st day of July, 3894, it has, among other business, been the owner of, and engaged in printing, publishing, and circulating in said city of Minneapolis, a daily morning newspaper, known as the “Minneapolis Times,” which is printed, published, and circulated at the same time, and in the same territory, as is the complainant’s daily morning newspaper, the Minneapolis Tribune, and is a direct competitor with said Minneapolis Tribune, for sale, subscription, and advertising. That on the 27th day of September, 3894, the said defendant, without thé written or other consent of said complainant, and against its objection and protest, entered into a written contract with the Journal Printing Company aforesaid, of that date, whereby, for the tolls and other considerations stated therein, said defendant contracted and agreed, for the term of 90 years thereafter, to grant and furnish to said Journal Printing Company, for publication in said Minneapolis Times, the night news reports of said defendant, and to deliver the same to said Journal Printing Company in time for daily publication in said Minneapolis Times; and that under such contract, and ever .since the date thereof, said defendant has sold, furnished, and delivered to said Journal Printing Company all its nightly news reports for publication in said Minneapolis Times, and that the same has been published in said Minneapolis Times as so furnished; and that said defendant purposes and intends to continue to sell, furnish, and deliver its night news reports to said Journal Printing Company, under such contract, for such purposes. That on the 2d day of March, 1893, neither the Minneapolis Times nor the Minneapolis Times Company, a Minnesota corporation then owning and publishing said Minneapolis Times, was a member of the defendant corporation, or had then any contract with the defendant for the furnishing of any news by the defendant for publication in the Minneapolis Times. That during and prior to the month of Jane, 1891, and before the corporate existence of said defendant, •two other district corporations, commonly called the United Press and the Western Associated Press, were respectively engaged in the business of gathering and collecting news and information in the United States and elsewhere, and in selling and furnishing the ¿ame to newspapers, and the proprietors of newspapers, for publication. That the complainant was in June, 1891, a member of, and had contracts with, each of said two last-named corporations, by which contract the complainant was entitled to have, exclusively, in the said city of Minneapolis, the night news reports of each of the same corporations for publication. That by the terms óf complainant’s contract with the United Press aforesaid, the said United Press contracted to furnish its night news reports to the complainant for publication in the morning in the complainant’s newspaper, the Tribune, and for no other purpose, subject to the by-laws of the United Press, and that it (the United Press) would not render the same service, for. publication in the English language, in said Minneapolis, without the consent of the complainant. Such contract also provided that the complainant’s rights thereunder might be sold with complainant’s said newspaper, but that it could not be otherwise transferred without the consent of the United Press indorsed upon said contract. The particular terms of complainant’s contract with said Western Associated Press do not appear, but the complainant’s right to its night news reports for" publication in said city were exclusive. That in the month of June, 1891, the Minneapolis Times Company, a Minnesota corporation, being then engaged or about to engage in the publication, in said city of Minneapolis, of the Minneapolis Times, as a daily morning newspaper, in the English language, entered into negotiations with said complainant for the obtaining of the night news reports of said United Press and said Western Associated Press for publication in said Minneapolis Times; and that it was thereupon agreed between said Minneapolis Times Company and said complainant that, in case the said United Press and Western Associated Press would severally consent thereto, the said complainant would let and' lease to said Minneapolis Times Company the right, franchise, and privilege to have and receive the night news reports of said United Press and said Western Associated Press, received in the usual course of business, at said city of Minneapolis, for the publication thereof in said Minneapolis Times, and for no other use or purpose, for the term of three years from the 1st day of July, 1891, and would, without expense to said Minneapolis Times Company, cause said United Press Company to place and maintain during said term, in the office of said Minneapolis Times Company in said city of Minneapolis, such wires, telegraphic instruments, and telegraph operators as said United Press should deem adequate to receive and transcribe such news reports sent by it to said city of Minneapolis, and that said complainant would also furnish during such term, to the Minneapolis Times Company, for publication in said Minneapolis Times, copies of said night news reports of the ■Western Associated Press; that in consideration thereof the Minneapolis- Times Company would pay said complainant $3,600 per year in semiannual payments, and also, in weekly payments,, one-half of the weekly tolls which said complainant would have to pay to said United Press and said Western Associated Press for their service, respectively, of such news reports. That said Western Associated Press at once, on complainant’s request, consented to such proposed contract between the complainant and said Minneapolis Times Company; and that upon a conference between the manager of the complainant, the manager of the Minneapolis Times Company and the Western manager of said United Press, had at Chicago, just prior to June 21, 1891, the said United Press, in consideration that its weekly tolls for sending such news reports should be increased the sum of 815 per week, also assented to said proposed contract, and agreed that said United Press would conform thereto; and that thereupon, on the 29th day of June, 1891, the said complainant a,nd said Minneapolis Times Company caused the said proposed contract to be reduced to writing, with other stipulations therein contained, needless to be referred to herein, and duly executed and mutually delivered the same, in duplicate; and that said United Press thereupon removed its wires, telegraphic instruments, and telegraph operators to the office of the Minneapolis Times Company, and from the 1st day of July, 1891, increased its tolls 815 per week for its news reports so furnished; and that thereafter, and until September, 1893, the Minneapolis Times Company continued to receive such night news reports, directly from the United Press, and by copy from the complainant from the Western Associated Press, and to publish the same daily in said Minneapolis Times newspaper, and that said Minneapolis Times Company performed said contract with complainant, in all things on its part, during the same time. That on or about July 1,1894, the said Minneapolis Times Company sold and delivered the Minneapolis Times newspaper, and all the property, rights, franchises, and contracts connected therewith and with the publication thereof, to the said Journal Printing Company, which has since been the owner of the same, and the proprietor of said Minneapolis Times newspaper.

As the complainant, on March 2, 1893, became a member of the defendant under its contract or certificate of' membership of that date of the kind denominated “Series A,” and was then the only member of defendant entitled to receive its night news reports in the city of Minneapolis, and no other person or corporation,had then any contract with defendant for the reception of its night news reports in that city, the defendant, by the terms of its contract with the complainant, and by the terms of its by-laws, had no right thereafter, without the written consent of the complainant, to admit the Journal Printing Company as a member entitled-to receive the defendant’s night news reports In said city, for publication in the Minneapolis Times, unless, and within the purview of section 2 of article VII. of defendant’s by-laws, the Minneapolis' Times was a newspaper which was “entitled to a service of news, finder existing contracts with the Western Associated Press or- (;he United Press on the 15th day of October, 1892.” .If.: the -Minneapolis Times was, on October 15, 1892, under existing contracts with the Western Associated Press or with the United Press, entitled to a service oí news, its proprietors might, after March 2, 1893, apply for sind be eligible to membership in the defendant corporation, entitled to its news reports, without being considered a new member, and without the consent of the complainant. The evidence shows that the Minneapolis Times was on October 15, 1892, under existing contracts, entitled to receive, and was receiving, service of news from the Western Associated Press and from the United Press. But its proprietor had no contract for such service with the Western Associated Press, and received the news of that corporation from the complainant, who was, by the Western Associated Press, admitted to have the right to so dispose of such news after its reception by complainant. Such news was therefore served to the Minneapolis Times by the complainant, and not by the Western Associated Press. But the contract of complainant with the United Press shows that complainant had no such right to dispose of the night news reports of the United Press. Its right was to receive such night news reports for publication in its newspaper, the Tribune, “and for no other purpose whatever.” Such news could not, therefore, be furnished to the Minneapolis Times without a new or additional contract with the United Press, having at least the effect of removing that restriction upon the use of the news received by the complainant from the United Press. The complainant contends that such alone was the effect of the verbal agreement made with the United Press, through its Western manager, in June, 1891; that such verbal agreement was between the complainant and the United Press alone, as parties to it, although the manager of the Minneapolis Times, representing its proprietor, was present at the negotiation, and interested in its consummation; and that such verbal agreement merely waived the above-quoted restriction so far as to permit the complainant to furnish to the Minneapolis Times for publication the news reports received by complainant from the United Press. I am unable, upon the evidence, to agree with this contention. At this meeting in June, 1891, of the managers of the complainant and of the Minneapolis Times Company with the Western manager of the United Press, the proposed contract to be entered into between' the complainant and the Minneapolis Times Company, as then negotiated, and as afterwards induced to writing and executed, was made known to such manager of the United Press, involving, as it did, the moving by the United Press of its wires, telegraphic instruments, and telegraph operators into the office of the Minneapolis Times, and the sending of its night news reports, by the United Press, to the Minneapolis Times, for publication in that newspaper as well as in complainant’s newspaper, for the term of three years. The complainant and the Minneapolis Times Company were both interested in having the United Press agree to this, and agree to perform the stipulations and acts to be performed by it, as indicated in such proposed contract, upon such terms and for such consideration as they could accede to. Without this the then proposed contract between the complainant and the Minneapolis Times Company could not be consummated. The United Press did then agree to perform the acts, and render the service, so contemplated in said proposed contract to be done and performed by it, for the consideration that the weekly tolls to be paid it for such night news reports should be increased $15 per week above what the complainant had been paying for such reports. One-half of such additional consideration was, as all the parties then understood, to be paid by the Minneapolis Times Company. This verbal contract was carried out by the several parties, and was in force and being performed on October 15,1892, and long after; and under it, as an existing contract, the Minneapolis Times was at that date receiving, and entitled to receive, from the United Press directly, a ser-vice of its news daily, for publication in said Minneapolis Times. It seems to me, from the evidence, that the Minneapolis Times Company must be regarded as a party to that verbal contract with the United Press. Its manager was present, and interested in its negotiation. It was for the benefit of the Minneapolis Times Company as well as of the complainant. It was to be performed directly with the Minneapolis Times Company, which was to pay one-half of the consideration which the United Press was to receive for the performance on its part of such verbal contract. If the manager of the Minneapolis times Company said not a word in that conference, it made no difference, as his silence would, under the cimunstanc.es, he an assent, on behalf of his principal, to what was concluded and agreed to, for his dissent would have ended the negotiation. His silent participation was as effectual to affect his principal as if he had personally discussed every stipulation; and his principal ratified the agreement by taking subsequent action to put it in force, and in its performance. It is not necessary, therefore, to consider in this case the very questionable doctrine asserted by some courts, to tlie effect that a stranger to a contract and to its consideration may enforce it, where its performance would he, and was intended to be, for his direct benefit. My conclusion is that the defendant had the right, without complainant’s consent, to make the contract of September 27, 1894, with the Journal Printing Company, and to furnish, under such contract, its night news reports for publication in the Minneapolis Times. The hill of complaint in this case should be dismissed upon the merits, with costs. A formal decree may be prepared in accordance with this opinion, and submitted for settlement