England-Kelch Co. v. Evening Journal Co. ( 1914 )

Boyce, J.,

delivering the opinion of the court:

The contract sued upon in this action is dated the twenty-eighth day of June, 1911. The question is whether this contract was not subsequently abandoned. It was competent for the parties thereto to novate, alter or waive said contract.

On August 1, 1911, the defendant company sent the following telegram to the plaintiff company:

“Wilmington, Del., etc.

“Fred England, 203 Broadway, New York.

“Financial, mercantile and manufacturing conditions are bad. Results to date are very discouraging. We advise abandoning the proposition at once. Either phone or see us without delay to decide matters. .

“The Evening Journal Co."

A few days thereafter the said Fred England, representing the plaintiff company, came to Wilmington and conferred with representatives of the defendant company. The uncontradicted evidence is that the parties, finding it impractical to continue the original contract, entered into a new or modified agreement; and we find as a matter of law that a new or substituted oral agreement was entered into. The plaintiff company, therefore, cannot recover under the special counts on the contract sued upon; neither can it recover under the common counts, unless the work done—that is, the subscriptions obtained—were beneficial to the defendant company.

There is no evidence that the advertisements turned in by the plaintiff company, which were not paid for, were of the slightest beneficial interest or value to the defendant company. While we are always reluctant to withdraw a case from the jury, yet, under the uncontradicted testimony in this case, we are constrained to give the jury binding instructions to return a verdict for the defendant.

Gentlemen of the jury:—The court directs you to return a verdict for the defendant.

Verdict for defendant.

Motion for a new trial was made, and by consent of parties was argued before Pennewill, C. J., and Boyce, J.

The grounds relied upon were:

That the evidence of the defendant tending to establish a new contract was conflicting, and the case 'therefore should have been submitted to the jury, under proper instructions from the court as to what their verdict should be if they should find that a valid new contract had been made.

That the evidence of the defendant fails to disclose that there was any consideration for the alleged guarantee; but that, on the contrary, the evidence clearly discloses that there was no consideration for the same, and consequently it was void.

In the argument, it was conceded that no testimony was offered by the plaintiff to deny or to controvert the testimony on the part of the defendant relative to the alleged new contract, but it was contended that the testimony of the defendant itself' was not sufficiently clear and certain to warrant the court in deciding, as a matter of law, that a new contract had been made which prevented the plaintiff from recovering.

Pennewill, C. J.:—The court feel constrained to refuse the motion for a new trial.