Pulitzer Publishing Co. v. McNichols

153 S.W. 562, 170 Mo. App. 709, 1913 Mo. App. LEXIS 391

• Court: Missouri Court of Appeals
• Decided: February 4, 1913
• Status: Published

Opinion

ALLEN, J. —

This action was begun before a justice of the peace, by plaintiff filing the following state ment:

“Plaintiff says that defendant by the written contract of September 30, 1907, filed as a part hereof, agreed to advertise in plaintiff’s paper and to pay therefor at the rate of sixteen cents per line, if 25,000 lines were used in a period of one year from September 30, 1907, or at the regular card rates charged by plaintiff for advertising, if less -than 25,000 lines were used in said year. Plaintiff further says that defendant did thereafter use advertising space in plaintiff’s paper to the amount of $416.46 and has refused to, pay therefor. Wherefore, plaintiff prays for judgment against defendant for the sum of $416.46 together with interest thereon at six per cent from September 30, 1908. Itemized statement hereto attached.”

With the above statement there was filed the contract therein referred to, in words and figures as follows :

“$4000 St. Louis, Sept.30, 1907.

“To the Pulitzer Publishing Co., Publishers St. Louis Post Dispatch.

“We hereby authorize you to insert our advertisements in the Daily or Sunday Post Dispatch to occupy the space of 25,000 lines of display to be used by us within a period of one year from date, for which we hereby promise and agree to pay the Pulitzer Publishing Company the sum of four thousand dollars. We reserve the privilege under this agreement of using additional lines of display in the Daily or Sunday within the time specified above, at sixteen cents per line each-insertion. We also reserve the privilege of inserting leaded locals at sixty cents per line each insertion Daily or Sunday.

“In consideration of the above rate we hereby agree to consume one-fourth or more of all the advertising ordered by us within the year named above in the Sunday issues of the Post-Dispatch.

“(Signed) Henry J. McNichols.

“Accepted subject to conditions on back by

“The Pulitzer Publishing Co.

“W. C.-Steigers, Business Manager,

“Per.E. N. Giles.”

Tlie last paragraph of the contract appears stricken ont by means of ink lines drawn through the same. On the back of the contract are set ont the ordinary advertising rates of defendant for advertising in the columns of its paper, and certain other provisions entitled “Conditions.” Of the latter we need only notice the following:

“3. If, for any reason, this contract is cancelled or made void, the advertiser hereby agrees to pay regular card rates in effect at the date of this contract for the amount of space that shall have been used. ’ ’

With plaintiff’s statement was filed an account which we need not set out in full. By it plaintiff showed two items as being due from defendant to plaintiff; one for $102.66, being one cent per line for all the advertising done by defendant under the contract (10,266 lines) and being the excess of the “card rate” over the contract price; the other for $313.60 for an advertisement published May 10, 1908, at the contract price, viz., sixteen cents per line. There appears a further item of twenty cents concerning which there was no testimony, and it need not be noticed.

Upon the trial in the justice court plaintiff re covered judgment for the sum of $466.42. Thereafter defendant duly perfected his appeal to the circuit court of the city of St. Louis, where the cause was tried before the court sitting as a jury, a jury having been waived. Plaintiff prayed the court to give the following declarations of law, which were refused by the court, viz:

“1. The court declares the law to be that plaintiff is entitled to recover against defendant .in the sum of $4Í6.46 with interest thereon from June -2, 1908, to this date at six per cent per annum, or for a total of $482.90.”

“2. The court declares 'the law to be that under the contract offered in evidence the plaintiff had a right to place the defendant’s advertisement of May 10,1908, on an inside page, and the fact that it was not placed on an ontside page is no defense in this case.”

“3. The court declares the law to he that if it be lieves from the evidence that the section of plaintiff’s paper in which the defendant’s advertisement of May 10, 1908, appeared was set np in print and that part of the paper completely rnn through the presses before midnight Saturday, then it is no de< fense that the late news section of the city edition of the paper may not have been run through the presses until Sunday morning or that the entire paper when completely printed was distributed to subscribers and carriers and sold on the streets of St. Louis on Sunday morning.”

The circuit court found the issues for plaintiff on the first item of its account, to-wit, $102.66, with interest thereon, and found in favor of defendant on the other item of plaintiff’s account, and accordingly rendered judgment in favor of plaintiff for the sum of $106.50. From this judgment both plaintiff and cle fendant have appealed duly perfecting their appeals by filing here a joint abstract of the record.

Plaintiff corporation is the publisher of the St. Louis Post-Dispatch, a daily newspaper published in the city of St. Louis; the defendant is a merchant, conducting a furniture business in said city. The evidence shows that for some time prior to September 30, 1907, plaintiff’s solicitor had endeavored to obtain an advertising contract from the defendant; t.l at the defendant had formerly been an advertiser in the columns of plaintiff’s newspaper, but that some trouble had arisen between plaintiff and defendant, and the latter had ceased to give plaintiff any advertising for a considerable period of time. It appears that defendant said to plaintiff’s solicitor: “Bring a letter from the head man that will show he is going to do the right thing, and we will not have any trouble.”- On September 30, and at the time of the signing- of ihe contract in question by defendant, the following letter was delivered to defendant by Mr. Giles, plaintiffs solicitor:

“Sept. 30, 1907.

“Mr. Henry McNichol,

1020 Market St., City.

Dear Mr. McNichol:

Our Mr. Giles asks that we send you a line giving you an idea what we can do to please you in the handling of your business. . '

It will be a pleasure for us to conform as near to your wishes in the placing of your ads as is possible, consistent with the irrevocable rules governing the make-up of our paper.

But as we understand Mr. Giles, it is your intention to make- all double-column ads 280 lines, or two full columns, in depth, and where yQur ads are three or four columns wide, if you will in all cases make them 200 lines or more in depth, it will give us pleasure to build these ads to at least within 25' lines or less of the top.

We will, of course, appreciate your order, Mr. McNichol, and will do all that we can to show it. You have been absent from our columns for a year and a half and I know we have both lost money. We will be pleased to renew the very pleasant relations which have existed for so many years with the pioneer in-stalment house of St. Louis.

With every assurance of our highest esteem and best wishes, we are,

Very truly yours,

W: C. Steigers,

Business Manager. ’ ’

Thereupon the contract here sued upon was executed, and under it defendant inserted advertising matter in the columns of plaintiff’s newspaper during the months of October and November, 1907, and April and May, 1908, amounting in all to 10,266 lines of display advertising, the contract price for which was sixteen cents per line. There was evidence that the, regular card rate mentioned in the condition on the back of the contract, set out above, in effect at the date of the contract, for this species of advertising,, was seventeen cents per line, where the amount of the advertising was 10,000 lines or more.

About ten days or two weeks prior to May 10. 1908, defendant sent to plaintiff “copy” for an advertisement to be published in plaintiff’s newspaper on Sunday, May 10, 1908. On this copy defendant made a memorandum in regard to the location of the advertisement in the paper. There is some conflict in the evidence as to just what this memorandum was. One witness for plaintiff testified that it was “outside page,” another that it was “request outside page;” the defendant testified that it was “must be outside page.” The evidence shows that the advertisement in question was published in the said Sunday edition of plaintiff’s newspaper at the top of an inside page. There is no evidence that plaintiff attempted to com'municate with defendant regarding the location of the ■advertisement in the paper, prior to its publication. Defendant left the city of St. Louis on Friday preceding the Sunday in question, and the first that he learned regarding the publication of the advertisement on the inside page was through seeing a copy of the paper the following Monday morning in the city of New York. This advertisement consisted of 1960 lines, which at the contract rate of sixteen cents per line amounted to $313.60. Defendant refused tc pay therefor, and thereafter inserted no further ad vertising matter in plaintiff’s paper during the period covered by the contract; and plaintiff brings this action to recover: (1) The item of $102.66, being one cent per line for the entire 10,266 lines, i. e., the difference between the card rate and the contract rate; and '(2) the item of $313.60 for the advertisement of Sunday, May 10, 1908, at the contract rate.

Defendant contends that the contract is void for the reason that the parties contracted for the publishing of advertising matter on Sunday, a work not of necessity or charity, in controvention of section 4801, Revised Statutes 1909, and that this defeats any recovery whatsoever upon the contract; and, that even if this should not render the contract itself void, defendant insists that, under the ■ evidence, it precludes a recovery for the publication on Sunday, May 10, 1908. As to the first item of $102.66, the further defense is made that there was no refusal on the part of defendant to comply with the contract, but that plaintiff is in default thereon in not observing defendant’s direction as to the last advertisement published, and that no cancellation of the contract, or anything rendering it void, has been shown, whereby plaintiff would be entitled to be paid for the advertising at the “card rate” instead of the contract rate, under that one of the “conditions” on the back of the contract set out above. As to the second item of $333.-20, defendant also disclaims liability thereon because plaintiff disregarded the said directions of defendant; by giving the advertisement in question a location in the newspaper different from, and less desirable than, that requested and directed by defendant.

T. Since the alleged violation of the statute above mentioned is interposed as a bar to any recovery upon the contract, upon the ground that the latter was illegal and void, as well as to a recovery for the specific item of advertising on Sunday, May 10, 1908, we shal1 pass at once' to the consideration of this question, We shall not stop to consider the contentions of counsel pro and con as to whether the contract is indivisible and the whole of it tainted with the so-called illegality, or whether it is separable and valid as to that portion of the advertising not actually done on Sunday; Neither shall we concern ourselves at this time with the proposition advanced by learned counsel for plaintiff to the effect that the contract itself could not be construed as being illegal and void, because it did not require that any advertising be published on Sunday, and the entire contract might have been performed according to its terms, without any Sunday publica tion — though there is respectable authority in support of this contention. We shall first look to' see whether the alleged violation of this statute should be permitted to be here interposed at all by the defendant as a defense to plaintiff’s capse of action; for, if it should not, then we are in no wise concerned with these questions just referred to.

The evidence showed that, on Sundays, plaintiff’s newspaper, the Sunday Post-Dispatch, is sent' out through the mails in several separate editions. The first edition is sent out Thursday night to faraway points; the second is sent out Saturday morning to points in western Missouri; the third is fully printed and sent out about 10 -.30 p. m. Saturday night to towns near St. Louis. The fourth and last edition, called the city edition, and circulating in the city of St. Louis, is printed in three" sections of about sixteen pages each. The first two of these sections are fully printed before 11:30 p. m. Saturday night. The third section called the late news section, is not completed until after 3 a. m. Sunday morning. The defendant’s advertisement appeared in the second section of this last or city edition, as well as in the earlier editions going out Saturday morning and Saturday night. It was not in the third section of the last or city edition, which, section was the only part of that edition which was printed on Sunday. However, it appears that the newspaper was not complete without this third section; that the. rest of the paper was held until this section could be folded in with it, and the completed paper then sent out for distribution. It therefore clearly appears that at least a portion of the work required in producing the completed city edition of plaintiff’s Sunday paper, of which the section containing defendant’s advertisement was a part, was actually performed within the twenty-four hours legally constituting Sunday. So that, while defendant’s advertisement was not actually printed on Sunday, work was performed on that day necessary to be done in order to publish the same.

The general principle of law that one cannot recover for the doing of any act, or upon any contract made, in violation of a criminal statute, is well settled. The principle is, that where the act is prohibited or declared unlawful, it is not necessary for the law to declare the act or contract void, but that an unlawful act, or a contract to do an unlawful act, is necessarily void. [Downing v. Ringer, 7 Mo. 585; Tri-State Amusement Co. v. Highlands Co., 192 Mo. 404; 90 S. W. 1020; Rothwell v. Gibson, 121 Mo. App. 279, 98 S. W. 801.] Such has been the law in this State since the decision in Downing v. Ringer, supra.

At common law an act might be done as lawfully on Sunday as any other day, with the exception of judicial acts. [3 Blackstone Comm. 277; Bishop on Contracts, 536; Lawson on Contracts (2 Ed. 1905) p 290; Page on Contracts, sec. 455; City of Parsons v. Lindsay, 41 Kansas, 336, 13 Am. St. Rep. 290, 3 L. R. A. 658.] Contracts made on Sunday were therefore valid at common law (Robert’s v. Barnes, 127 Mo. 405, 30 S. W. 113, 48 Am. St. Rep. 640; Kepner v. Keifer, 6 Watts (Pa.), 231, 31 Am. Dec. 460) as were likewise contracts to be performed on Sunday [Sheffield v. Balmer, 52 Mo. 474; St. Louis Agricultural, etc. Association v. Delano, 108 Mo. 217, 18 S. W. 1101; Ex parte Neet, 157 Mo. 527; State v. Railroad, 143 S. W. 785; Ward v. Ward ,75 Minn. 269.]

As the common law made no distinction between Sundays and week days in regard to the making and the performance of contracts, if the contract in question is itself illegal and void, or if no recovery can be had for the rendering of those services under the contract which were performed on Sunday, it is because of the statute above mentioned, prohibiting work and labor on Sunday, other than the household offices of daily necessity, or other works of necessity.

Sections 4801 .and 4802, Revised Statutes 1909 are as follows:

“See. 4801. Sabbath breaking. — Every person who shall- either labor himself, or compel or permit his apprentice' or servant, or any other persons under his charge or control, to labor or perform any work other than household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on tbe first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.”

“Sec. 4802. Last section construed. — The last section shall not extend to any person who. is a member of .a religious society by whom any other than the first day of the week is observed as a Sabbath, so that he observes such Sabbath, nor to prohibit any ferryman from crossing passengers on any day of the week; nor shall said last section be extended or construed to be an excusé or defense in any suit for the recovery of damages or penalties from any person, company or corporation voluntarily contracting or engaging in business on Sunday

Acts similar to those above, with the exception of the words above italicized, have been upon our statute; books since 1825: In the Revised Statutes of 1879’the same appeared in two sections, viz., sections 1578 and 1579 of that revision. Section 1578 of that revision was precisely the same as section 4801, Revised Statutes 1909, the same having remained unchanged. Section 1579, Revised Statutes 1879, was the same as section 4802, Revised Statutes 1909, above set out, with the exception of the words italicized.

In the latter part of the year 1888, the case of Thompson v. W. U. Telegraph Company, 32 Mo. App. 191, was decided by the Kansas City Court of Appeals. In that case it was held that the plaintiff could not recover damages for the failure of a telegraph company to transmit on Sunday a dispatch relating to ordinary business, on the ground that the defendant was prohibited from so doing by said section 1578 Revised Statutes 1879. At the next session of the Legislature, early in 1889, section 1579, Revised Statutes 1879, was amended by adding thereto the words italicized above.

It is not contended here that the publication of a newspaper on Sunday is a work of necessity within the meaning of the statute, and the contract here sued upon indicates that it is not one of charity. That it is not a work of necessity has been held in Sheffield v. Balmer, 52 Mo. 474; Knapp v. Culbertson, 152 Mo. App. 147, 133 S. W. 55; Smith v. Wilcox, 24 N. Y. 353; Handy v. St. Paul Globe Printing Co., 41 Minn. 188; and it has been so intimated in Porter v. Paving Company, 214 Mo. 1.

Under what is now section 4801, Revised Statutes 1909, it has been held that one cannot recover for services as foreman of a sawmill, rendered on Sunday. [Barney v. Spangler, 131 Mo. App. 58, 109 S. W. 855.] In this case a part of plaintiff’s recovery below was for labor performed on Sundays, and this court compelled a remittitur to be entered therefor before affirming the judgment.

In Sheffield v. Balmer, 52 Mo. 474, the action was by the publishers of a newspaper to recover upon a contract for publishing in a Sunday edition of the paper. It did not appear from the evidence that the publication of the advertisements in question required the actual doing of any work on Sunday, and i+ was held that where a contract could be performed without any violation of law it would be presumed that it would be so performed, and the plaintiffs were permitted to recover. . This case is distinguishable from the one before us for the reason that the evidence here discloses that it was necessary that Sunday’labor be performed in completing the city edition of the paper in question, in which appeared plaintiff’s last advertisement.

The precise question here involved was passed upon in Publishers, Knapp & Co. v. Culbertson, 152 Mo. App. 147, 133 S. W. 55, in which the Kansas City Court of Appeals held that contracts for advertising in the Sunday edition of the St. Louis Republic, a newspaper printed and published in the city of St. Louis, were void, since the contracts called for work on Sunday in violation of the section of our statutes above mentioned, making' such work a criminal offense. In that case it appeared-that there were four editions of the paper issued every Sunday; that no Sunday labor was done on the first two of these editions, but, as to the last two editions, press work, mailing and delivery were performed on Sunday.

The same conclusion has been reached by other courts, under statutes similar to the one above. [Smith v. Wilcox, 24 N. Y. 353; Handy v. St. Paul Globe Publishing Co., 41 Minn. 188.]

Counsel for plaintiff here takes the position that section 4802, Revised Statutes 1909, as it now stands, precludes defendant from setting up the immediately preceding section (4801) as a defense to this action. In the opinion in Knapp, Publishers, etc. v. Culbertson, this section was in no way referred to. That this section was brought to the attention of that court at the time, appears from the reference to the same in the brief of counsel for respondents therein, accompanying the reported opinion in the case. No reference however is made thereto in the opinion, and the court’s decision is based upon the ground that the plaintiff therein could not recover upon a contract in violation of section 4801, altogether ignoring the succeeding section (4802).

In regard to the effect to be given to section 4802, it may be well at the outset to refer to what was said by this court in Bassett v. Telegraph Company, 48 Mo. App. 566, in regard to the reasons for the above mentioned amendment thereto:

“There can be no doubt as to the reasons for this amendment, or the existing evils which the Legislature sought to remove or remedy by the amendment. It is a notorious fact that the common carriers of the State are and have been in the habit of contracting for the carriage of freight or the transportation of passengers on the Sabbath, as if it were a secular day. In actions arising out of such illegal contracts the courts of the State have experienced some difficulty in compelling the carrier to respond in damages for neglect of duty. [Guinn v. Railroad, 20 Mo. App. 453.] In 1888 the Kansas City Court of Appeals, in an action against this defendant to recover the statutory penalty for failure to transmit a message delivered on Sunday (Thompson v. Tel. Co., 32 Mo. App. 191), decided that defendant was not liable for a violation of the statute, when it appeared that the message concerned an ordinary business transaction. These adjudications evidently brought about the amendment and its proper application to such case will undoubtedly meet the ends of justice. Where common carriers and telegraph companies engage in a general business on the Sabbath, regardless of the fact whether the business done was permitted or prohibited, by law it wa's the evident intention of the Legislature to eliminate from actions growing out of such contracts all defenses resting on the illegality of the transaction; that is, in telegraph cases, all questions concerning the character of messages sent. In other words, if railroad and telegraph companies pay no attention to the Sunday law, but proceed with their business on the Sabbath as if it were an ordinary business day, they ought not to be allowed to take the profits, and then compel their patrons to show that their contracts were not avoided by the Sunday law, in order to hold them for a violation of their statutory duty. This is the plain reading of the amendment; therefore, such a defense, in cases like we have here, is prima facie unavailable, and can only be made available under the necessary averments and proof by the defendant that its offices were opened on the Sabbath for the purpose of transmitting messages of necessity only, and that it was induced to send the dispatch in question through the false misrepresentations of the sender that it was one of necessity, whereas it concerned ordinary business. Under such circumstances only can it be said that the defendant did not voluntarily engage in the business within the meaning of the statute. ’ ’

The action was one against a telegraph company, and the portion of the opinion above quoted deals with this amendment in its application to common carriers and telegraph companies engaging in business on the Sabbath, regardless of whether the same was permitted or prohibited by law. There is nothing however in the amendment itself to restrict its application to common carriers and telegraph companies, but on the contrary the language thereof is such as to make it applicable to all classes of persons and corporations ‘ ‘ voluntarily contracting or engaging in business on Sunday.” By the language of this amendment, now a part of section 4802, Revised Statutes 1909, defendant cannot avail himself of the preceding section (4801) as a defense to this action provided that thi« is a “suit for the recovery of damages or penalties from any person, company or corporation voluntarily contracting or engaging in business on Sunday.”

■ In respect to any statute, a cardinal canon of constructing is “to get at the intendment of the lawmaker and enforce that intendment.” [Grimes v. Reynolds, 184 Mo. l. c. 688, 83 S. W. 1132; Keeney v. McVoy 206 Mo. l. c. 65, 103 S. W. 946; State v. Trustees, 234 Mo. 299, 136 S. W. 397; Decker v. Diemer, 229 Mo. l. c. 324, 129 S. W. 936.] Concerning the construction of statutes of this State, section 8057, Revised Statutes 1909, provides that “words and phrases shall he taken in their plain or ordinary and usual sense, hut technical words and phrases having a peculiar and appropriate meaning in law shall he understood according to their technical import.” The word “damages” must.be regarded as a technical word having a “peculiar and appropriate meaning in law.” [Nicholas v. Kelley, 159 Mo. App. l. c. 29, 139 S. W. 248,] The amendment in question is remedial in its nature. [Hernán v. McNamara, 77 Mo. App. 1.] It was enacted to relieve against the hardship of a defense based ujDon the preceding section by one who had voluntarily contracted or engaged in business on Sunday. Being remedial it must receive a liberal rather than a strict construction. [Heman v. McNamara, supra; Dugan v. Gray, 114 Mo. 497, 21 S. W. 854; State v. Swanger, 212 Mo. l. c. 477, 111 S. W. 7.]

Learned counsel for the defendant earnestly insists, however^ that this is not an action either for damages or penalties within the meaning of the statute, and that the defendant in this case neither contracted on Sunday nor was he voluntarily engaging in business on Sunday. It is clear that the suit is not one for “penalties'.” It is insisted by counsel that, on the other hand it is not a suit for ‘1 damages ’ ’ but ‘ ‘ a suit on the contract.” Concerning this question we must look to the contract, and consider the nature of the action which plaintiff has brought here for the redress to which plaintiff claims it is entitled. The suit was begun in the justice court, where there are, properly speaking, no pleadings; but the statement, and the contract and account filed therewith, we think, in the light of the facts before us, clearly indicate that the action is one for breach of contract. It seems that, when defendant refused to pay for the advertisement of May 10, 1908, and failed or refused to furnish plaintiff with any further advertising matter during the period covered by the contract, plaintiff considered that defendant had breached the contract, and that this suit is bottomed upon such breach. It is clearly a suit on the contract; not however for specific performance thereof but for a money recovery, evidently as for a breach of the contract. The question is whether it may be said to be a suit for “damages” within the meaning of the statute (sec. 4802).

The term “damages,” as expressing the amount which a party is entitled to recover, is of course applicable to actions ex contractu equally as well as to actions ex delicto. Bouvier defines the word “damages” to be: “The indemnity recoverable by a person who has sustained injury, either in his person, or relative rights, through the act or default of another. The sum claimed as such indemnity by plaintiff in his declaration. The injury or loss for which compensation is. sought ...” In Sedgwick on Damages (9 Ed), sec. 2, it is said: “The common law ’. . is generally remedial in character, and its remedies áre of a pecuniary description. It has few preventive powers; it can rarely compel the performance of con ■tracts specifically; its relief, for the most part, consists in the awarding of pecuniary damages. Whether it punishes wrongs, or remunerates for breách of contract, in either case its judgment simply makes com pensation, by awarding a certain amount of money by way of damages to tbe sufferer. ’ ’ It bas been said that tbe word “damages” means: “A compensation, recompense or satisfaction in money; that tbe word “wrong” means any deprivation of right, breach of contract or injury done by one person to another; and that therefore the expression “damages for a wrong” includes “money due on contract.” [O’Connor v. Dils, 43 W. Va. 54.]

In an early case it was said by Lord MaNspield that in an action brought for tbe breach of a contract for tbe payment of money only, although it “be nominally an action for damages, and damages be nominally recovered in it, yet it is really and effectually brought for a specific performance of the contract.” [Robinson v. Bland, 2 Burr. 1077, 1086.] And, again Lord Loughborough says of such an action, that “where tbe demand is for the payment of a sum of money, it is a technical fiction to call tbe sum recovered damages; it is the specific debt, and tbe jury give the specific thing demanded.” [Rutter v. Price, 1 H. Bl. 547, 554.] But, as was pointed out in an early California case, tbe true theory of tbe recovery even on a money demand “is not that tbe party recovers tbe particular note or chose in action, as is commonly imagined, but that be recovers damages for tbe nonperformance of tbe contract, and in case of failure to pay money due it bas always been held that tbe true measure of damages was tbe amount of money owing and tbe interest which was agreed upon.” [Guy v. Franklin, 5 Cal. 416.]

However, tbe instrument in question here is not a mere evidence of debt, but a contract whereby the defendant agreed to furnish a certain amount of advertising, agreeing to pay for bis advertising at one rate if be furnished tbe stipulated amount and at a higher rate if.be defaulted as to tbe amount to be furnished. Plaintiff says that defendant is in default on the contract and brings its suit to recover thereon. Hence we think that plaintiff’s action may properly be regarded as one for da/mages for breach of contract, and we see no good reason why it should not be considered as comprehended within the language and meaning of section 4802, above mentioned. The statute itself refers to “contracting,” so that, for one purpose at least, the word “damages” in the statute must mean damages for breach of contract. That is to say, the section provides that the preceding section shall not be a defense in any suit for the recovery of damages from any person or corporation voluntarily contracting on Sunday; so that it appears that, where the contract is voluntarily entered into on Sunday, the word “damages” is used with reference to a recóv-' ery for the breach thereof. It plainly appears from this that the term, as used in the statute, was not intended to be confined to actions ex delicto, but applies as well to actions arising upon contracts. We are, therefore, of the opinion that the action, here is one comprehended within the terms of that section, and that the defendant cannot take refuge behind the preceding section (4801), provided defendant can be said to have been voluntarily “engaging in business” on Sunday, within the meaning of the act.

It is earnestly insisted, however, by learned counsel for the defendant, that defendant cannot be said to have been engaging in business, within the meaning of the statute, by inserting an advertisement in the Sunday edition of plaintiff’s newspaper, and that only the plaintiff can here be said to have voluntarily engaged in business on Sunday. On this question we will say that the record discloses that defendant was at the time in question a merchant doing business in the city of St. Louis under the name of McNichols Furniture Company. Just what the advertisements were does not appear, but it is clear that defendant was doing the advertising as a matter of business — in other words, that he was conducting this portion of his business, i. e. advertising his goods, on Sunday, through the medium of plaintiff’s paper. We think that it would be idle to say that the plaintiff here alone was voluntarily engaging in business on Sunday. What was done by the plaintiff in this regard was done for and on behalf of defendant and under contract with him. The advertising was defendant’s advertising, of course, and not the plaintiff’s. And, in advertising his business on Sunday, we do not hesitate to say that the defendant must be held to have voluntarily engaged in business on Sunday, within the meaning and intend • ment of the act. The section in question applies to any one voluntarily engaging in business on Sunday, even though the latter required no work or labor on bis part.

The action therefore being one, in our opinion, comprehended within the terms of section 4802, Revised Statutes 1909, and the defendant, as we hold, having voluntarily engaged in business on Sunday, he is, by the terms of that section, precluded from interposing the violation of the immediately preceding section as a defense to plaintiff’s action.

II. As to the item of $102.66, the excess of the card rate over the contract rate, defendant further disclaims liability thereon because, as he says, the contract was in no way “cancelled” or “made void,” and hence plaintiff did not become entitled to hold defendant for this excess.

While, strictly speaking, the contract had not been cancelled or made void, this provision of the contract should evidently be construed in the manner indicated by what we have said above. It is always the real intention of the parties that must be sought, and we think that here the intention may be gathered from the instrument itself, in spite of the rather inappropriate use of certain terms there employed: It would be unreasonable to suppose that this provision was inserted in contemplation of anything that would altogether annul the contract, rendering it actually void. The provision was one of several printed “conditions” on the back of the instrument in question and subject to which plaintiff signed the contract. By its terms the advertiser was to be' penalized, as it were, if the contract were “cancelled” or “made void;” indicating that it was intended for the purpose of holding the advertiser to his agreement to furnish the amount of advertising called for by the contract. And we do not think that the words “cancelled” and “made void,” inappropriately used, as they evidently were, were intended to mean a cancellation of the contract in the legal sense of that term, or an actual annulment thereof, wherein it should become nugatory altogether, so that no recovery could be had upon it. The context does not bear out such a construction; for why provide for anything concerning the card rate, if such higher rate is to become payable only after the contract has become nugatory and will support no action?

From the provision in question as a whole, it would seem that the purpose was chiefly to provide against the failure of defendant to continue under the contract, and that the expression “if for any reason this contract is cancelled or made void” was intended to cover an abandonment of the contract by defendant before the completion thereof, whatever other purpose it may have had.

III. Lastly, defendant asserts that he did not abandon the contract or commit a breach thereof, but that plaintiff breached the same by arbitrarily ignoring his direction to place the advertisement of May 10, 1908 on an outside page, without notice to him, and that defendant had the right to refuse to pay therefor, and to decline to go on further under the contract because of plaintiff’s said prior breach thereof, and that, therefore, he is not liable for either of the items in question.

The learned circuit judge who tried the case below held, in a-memorandum of finding filed in the cause, that defendant was liable for the first item of $102.6-6, regardless of plaintiff’s .action in ignoring defendant’s request or direction concerning the last advertisement, but that, as to the last advertisement itself, plaintiff could not recover (1) because of the violation of the statute (4801), and (2) because of plaintiff’s failure to observe defendant’s said request or direction without notice to him. The court felt bound by the decision in Knapp v. Culbertson, supra, though apparently reluctant to follow it, and, as stated in the memorandum, was better satisfied to place its decision upon the second ground above mentioned.

The question here involved is whether defendant had the legal right to demand that, an advertisement furnished under the contract be placed on an outside page of plaintiff’s newspaper;' or, in other words, whether plaintiff was obligated by the contract to obey defendant’s direction in this regard. To determine this question we must endeavor to ascertain the intention of the parties, gathered from the contract as a whole respecting the said right asserted by defendant.

The signed instrument itself is set out in full above, as is likewise the letter of plaintiff’s business manager of the same date, which was handed to defendant at the time of signing the contract and which the lower court quite properly admitted in evidence as constituting a part of the contract between the parties. It will be observed that the contract alone, without considering the letter as a part of it, was silent as to where advertisements should be placed,, and cannot be considered as giving defendant the right to require or demand that plaintiff publish his advertising matter on any particular page of plaintiff’s newspaper. The letter of,the same date contained the assurance to defendant that the plaintiff would conform as nearly to defendant’s wishes in the “placing” of his “ads,” as was possible, “consistent with the irrevocable rules governing the make-up” of plaintiff’s paper. Further on in the letter, defendant was told that, where the “ads” were of certain width and depth, plaintiff would “build these ads to at least within twenty-five lines or less of the top.” It is not altogether clear whether the earlier portion of the letter, in regard to “placing” defendant’s advertisements, had reference .to placing them on particular pages, as well as to their location on the page itself, or whether it was meant to apply exclusively to the latter. The latter portion of the letter above referred to deals only with the question of their location with reference to the top of the page upon which they might appear. Certain parol testimony was admitted, and properly we think, indicating how this letter happened to be written and given to defendant at that time, which throws some light on the question of the interpretation to be given to the contract regarding what was meant by “placing” the advertisement — a matter which cannot be said to be entirely clear in the writing itself.

While parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, the writing “should be read in the light of surrounding circumstances in order the more perfectly to understand and explain the intent and meaning of the parties.” [Williams v. Railroad, 153 Mo. l. c. 534, 54 S. W. 689.] “The object of interpretation always is, or should be, to reach the actual intention of the parties. We mean, of course, that intention as expressed in the writing they employ to poitray it, and consistent with the latter. When the subject-matter to which such a writing refers is not entirely definite and clear, it is permissible, and obviously just, to receive in evidence a description of the circumstances of its execution that the court maybe placed, as near as may be, in the situation of the contracting parties with a view the better to adjudge in what sense the language used was probably intended by them. [Swett v. Shumway, 102 Mass. 365; Keller v. Webb, 125 Mass. 88.] Putting a construction upon a document means ascertaining the meaning of the signs or words made upon it, and their relation to facts. ... In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may have been intended to refer, or which identifies any person or thing mentioned in it. Stephen’s Dig. Law of Evidence, art. 91, p. 108; Carter v. Foster, 145 Mo. 392.” [Laclede Const. Co. v. Tie Co., 185 Mo. l. c. 62, 84 S, W. 76; Ellis v. Harrison, 104 Mo. l. c. 279, 16 S. W. 198.]

It appears that defendant had formerly been an advertiser in the columns of plaintiff’s newspaper, but that a dispute had arisen between the parties and that defendant had no.t advertised in plaintiff’s paper for about eighteen months. This former dispute, according to defendant’s own testimony, as well as that of plaintiff’s solicitor, was solely in regard to the location of defendant’s advertisements on the pages upon which they appeared, defendant claiming that plaintiff was not placing his advertising matter at or near enough to the top of the page. Plaintiff’s solicitor had been endeavoring to obtain a contract from the defendant for a long time, and finally defendant said to him: “Bring a letter from the head man that will show he is going to do the right thing and ,we will not have any trouble.” As a result of this, the letter above set out was written and brought to defendant by plaintiff’s solicitor, and thereupon defendant signed the contract. From this, we think it appears that this letter, construed in the light of the surrounding circumstances which caused it to be written, did not have reference to the placing of defendant’s advertisements on particular pages of plaintiff’s newspaper. It seems that defendant had not theretofore insisted that his advertisements appear npon outside pages but that on the contrary, so far as the record discloses, they had been printed on inside pages, and that defendant had objected because they were not placed at or sufficiently near the top of the inside pages upon which they appeared. In view of the fact that the signed contract is silent as to this question, and construing this letter in the light of the circumstances which called it forth, we feel that we must hold that the contract of the parties was not that plaintiff was to be required to place defendant’s advertisements on any particular page which defendant might direct. If, therefore, defendant did not have the legal right to demand that his advertisement be placed upon an outside page of the newspaper in question, it necessarily follows that the plaintiff was guilty of no breach of contract in disregarding his demand or direction to so place it.

Counsel for defendant says, arguendo, that it would be unreasonable to suppose that defendant had no right to give directions as to the page upon which his advertisements should be placed, for otherwise plaintiff, in arbitrarily placing them, might have chosen to publish them in the “comic supplement” of its paper, where they might not have been seen, or, if observed, not taken seriously. As to this, it may not be inappropriate to say that the latitude retained by plaintiff in this regard could not well be construed to permit it to publish defendant’s advertisements in such a supplementary sheet, if it had one, as this would doubtless not be substantial performance on its part. We might perhaps with equal propriety suggest that if, on the other hand, defendant had, by the contract, the absolute and unqualified right to require plaintiff to publish an advertisement for him on any page which he demanded, then he might have arbitrarily chosen to- have his advertising matter „ displayed on the editorial page of plaintiff’s paper, and plaintiff would have been bonnd to observe his direction or respond in damages.

It may be said, in view of the direction given by defendant, that the plaintiff should have notified him before printing the advertisement on an inside page, in order that the defendant might, if he saw fit, omit it altogether; and such was the holding of the lower court. In this connection it may be worthy of note that the defendant’s direction in regard to this matter was not sufficiently full and specific to- advise plaintiff that he would wish to' have this advertisement omitted, if it could not be published on an outside page — a contingency, we think, that defendant might have been expected to take into consideration, inasmuch as neither the contract itself nor the letter unequivocally gave the defendant the right to select any particular page. Plaintiff does not rely upon the “irrevocable rules governing the made-up” of its paper, as an excuse for not observing defendant’s said direction, and it was not shown, what these rules were. Plaintiff’s position is, that what appears in the letter concerning these so-called rules was not intended to give defendant the right to select particular pages, and in fact had no reference to this question, but that the plaintiff retained at least reasonable latitude in regard to the page upon which it might place any advertisement for defendant. This .would seem to be the reasonable construction to be placed upon the contract between the parties, and hence it cannot necessarily be said that it was incumbent upon plaintiff to notify defendant that his request or direction could not ,be observed. The plaintiff may have been, and doubtless was, guilty of a breach of courtesy or propriety in not so notifying defendant before publishing this advertisement on an inside page. However this may be, our conclusion is, that plaintiff was not guilty of a breach of contract in disregarding defendant’s direction without notice to him, and that therefore defendant had no defense to this action npon that ground.

It follows that the second declaration of law requested by plaintiff should have been given; and furthermore since under the evidence, as we view it, de-, fendant had no defense to either of the two items of plaintiff’s account above referred to, the trial court should have found the issues in favor of plaintiff as to both items thereof.

. For the reasons given above, the judgment of the circuit court should be reversed and ‘ the cause remanded, with directions to the circuit court to enter judgment for plaintiff for the amount of the two items of its account in question, with interest thereon. However, since the decision we have reached herein is iu conflict with the decision of the Kansas City Court of Appeals in the* case of Knapp & Co. v. Culbertson, 152 Mo. App. 147, the cause should be certified to the Supreme Court for final determination.' It is so ordered.

Reynolds, P. J., and Norioni, J., concur.