
    Charles F. Benjamin, Pl’ff, v. The Public Service Publishing Co., Def’t.
    
      (City Court of New York, Trial Term
    
    
      Filed April 24, 1890.)
    
    Contract — Journaustic correspondence — Construction.
    A contract to furnish correspondence for a newspaper or journal at a certain amount per week, on the basis of averaging a certain number of words, is one for weekly service at a fixed compensation and not for an indefinite quantity of matter at a certain rate per word, and the correspondent is not entitled to increased pay where his articles exceed the specified number of words.
    On March 28th,1887, the plaintiff entered into an agreement with "the defendant, the publishers of a weekly journal known as “ The Public Service Review,” whereby the plaintiff was to act as the Washington correspondent of that journal. The terms were twenty dollars per week for a weekly resume of the military situation, the article to be about 1,500 words in length.
    A new contract was made by correspondence June 1, 1887. The parties differ as to its interpretation. The portion material to the question in dispute is contained in a letter sent by the plaintiff to the defendant on May 31, 1887, in which he writes: “ The pay can continue at twenty dollars per week, upon the basis of my averaging 2,000 words per week, which is better than your proposal of 1,500 words per week” The proposition was accepted by letter sent to the plaintiff June 1, 1887, in which the defendant writes: “ Your suggestion of 2,000 words a week of correspondence is satisfactory at $20.” This arrangement was continued until August 31, 1887, when it terminated. The defendant paid and the plaintiff accepted twenty dollars per week during the continuance of both agreements.
    Under the first contract the plaintiff was to write gossip, a theme that became dis tasteful to him, and under the new arrangement he was to be a critic and commentator. After both agreements terminated, the plaintiff claimed that there was still a balance owing to him; that the new contract entitled him to twenty dollars for every 2,000 words furnished; that the articles written exceeded 2,000 words per week, and that, for the excess, he was •entitled to recover at the contract rate of one cent a word. The •defendant contends that the twenty dollars per week was the fixed stipend, and as the amount has been paid regularly there can be no recovery.
    
      A. H. JEly, for pl’ff; Nichols & Bacon, for def’t
   McAdam, Ch. J.

“ The Public Service Review ” was a weekly publication, and the contract contemplated a weekly contribution of literary matter, the compensation for which was to be twenty dollars a week, and the payment of that sum discharged every obligation owing by the defendant under the contract. The expression “ averaging 2,000 words per week ” was to regulate the size of the article. A substantial performance of this condition was all that was required. For example, an article containing 1,900 words one week and 2,100 the next would probably answer the legal requirement. One hundred words one week and 3,900 the next would not The entire weekly publication could not well be devoted to the plaintiff’s article, no matter how interesting. “The Review,’’ like other publications, evidently had a corps of writers, each of whom was entitled to his share of space to suit journalistic requirements. The fact that the plaintiff’s articles greatly exceeded 2,000 words per week did not. increase his compensation, nor could the regular weekly stipend of twenty dollars per week be varied or enlarged by any extra exertion of the plaintiff. The hiring was a contract for weekly service at a fixed compensation, and not for an indefinite quantity of matter at one cent a word.

This constrnction is in accord with the acts of the parties, and is evidently what they understood. Their intention, as gathered from the writings, the nature of the subject-matter and their acts; must prevail. Even when the actual terms of the agreement contradict the manifest intention, the intention governs. Story on Con., §§ 636, 638. “ The best construction,” says Gibson, Ch. J., “ is that which is made by viewing the subject as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it A result thus obtained is exactly what is obtained from the cardinal rule of intention.” Schuykill N. Co. v. Moore, 2 Whart., 491. While there is force and merit in the ingenious argument of the-plaintiff’s counsel, it has failed to change these views. It follows; that there must be judgment for the defendant  