
    Dana A. Patten, Respondent, v. Edward J. Lynett, Appellant.
    First Department,
    July 13, 1909.
    Evidence — damages — when opinion inadmissible — varying written contract by parol — accord and satisfaction — damages for breach of contract.
    
      In an action against the publisher of a newspaper to recover damages for the breach of a contract whereby the defendant was to print certain advertisements procured by the plaintiff for a certain price per page, it is error tó allow the plaintiff to give his opinion as to how many pages of the paper issued by the defendant after the breach were paid advertisements or as to how many paid advertisements he himself could probably have obtained in that particular locality if he had been permitted to fulfill the contract,
    The damage suffered by the plaintiff was not, under the circumstances, a matter of his opinion but a question for the jury to determine upon such material facts as were capable of proof.
    Where such contract is silent as. to the sums the plaintiff could charge advertisers procured by him, evidence of a paról agreement that such advertisers were not to be charged in excess of a certain sum per page is inadmissible as tending to vary the terms of a written instrument.
    Although - the defendant during the negotiations' for a settlement sent two checks to the plaintiff, who kept one for a month and the other for six weeks, there was no accord and'satisfaction because he finally returned both checks and refused to accept them in satisfaction of his claim.
    In such action it is error to permit the jury in addition to general damages to allow special damages on account of advertising contracts procured by the plaintiff and used by the defendant, for they formed part of the general damages caused by the defendant's breach.
    McLaughlin, J., dissented in part with memorandum.
    Appeal by the clefendant, Edward J. Lynett, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1908, upon the verdict of a jury, and also .from an order entered in said clerk’s office.on the 23d day1 of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Elon S. Hobbs and Cornelius Comegys, for the appellant.
    
      Philip Carpenter, for the respondent.
   Houghton, J.:

The plaintiff is engaged in the business of superintending special editions of newspapers throughout the country. He solicits the advertisements for such editions and directs the character of the publication and pays a certain amount for the space which his advertisements occupy. The defendant is the publisher and proprietor of the Scranton Times, published at Scranton, Penn. In the summer of 1906 negotiations were had between the plaintiff and the defendant looking to the publishing of a special edition of the Times in celebration of the removal of its plant to a building erected for its accommodation. These negotiations terminated in a written contract which, in substance, provided that the plaintiff should supply canvassers for advertisements for the edition and make collections for the advertisements, and furnish illustrations therefor, and pay the defendant $75 per page for the space occupied; and in return the defendant was to print the advertisements as directed, write up and illustrate the locality, advertise the edition and furnish certain free advertising for plaintiff’s benefit. Ho thing was contained in the written contract as to the right of.the defendant, the proprietor of the paper, to reject any improper advertisements or as to what price the plaintiff should charge for advertising. Plaintiff put canvassers, at work soliciting advertisements and they fixed the price for a full page advertisement to the patrons of the paper at $300. The defendant protested against this and claimed that it had been agreed that the maximum price should be $250. This was disputed, plaintiff claiming that he had a right to charge what he liked and what he could get, the defendant insisting that it would be of great damage to the paper and himself to compel its patrons to pay over $250 per page and that such was the agreement. The plaintiff refused to yield and the defendant refused to have any further dealings with him respecting the special edition, and proceeded to publish the edition himself, realizing a profit thereon from $2,000 to $2,600. Plaintiff’s canvassers up to the time of the disagreement as to the price per page to be charged advertisers and the refusal to permit him to continue, had secured contracts for advertising aggregating about $900, and these the defendant fulfilled and solicited and procured further advertisements. The plaintiff brought this action for alleged breach of his contract and recovered the sum of $5,000 for breach and in addition the value of the advertising contracts which his canvassers had obtained and which the defendant carried out.

Plain tiff had had experience in publishing similar, newspapers in other cities, and against the objection of the defendant, was permitted to give his opinion in view of the industries in and about Scranton, as to what amount of advertising he could probably have gotten for the special edition of the paper, and how it would have compared with that which the defendant obtained, and also as to how many pages of the edition were paid matter.

The defendant on his part sought to prove in justification of his refusál to permit plaintiff to continue, that the agreement between himself and the plaintiff was that advertisers should not be charged more than $250 per page and such evidence was excluded on the ground that it tended to vary the terms of the written contract.

" It was error to permit plaintiff to give his opinion as to how many pages of the paper actually issued were paid advertisements or as to how many paid advertisements he himself could probably have obtained if he had been permitted to continue his contract. Mo,matter how great the- plaintiff’s experience may have been in like work and in similar editions of newspapers in other cities throughout the country^ it was not competent for him to give his opinion as to what advertising he would probably have been able to secure in and about the city of Scranton. He had had no-experience of a similar edition of a newspaper in that city, and there were -no facts, and could have been none, upon which he could properly base' his opinion. Advertisers in that city may not have been of the same mind as advertisers in other cities and may not have viewed the edition with such favor as had been accorded similar editions ot other papers in other localities. Opinion evidence of this character is expressly condemned dn Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 217), and in Benyakar v. Scherz (103 App. Div. 192). If there was a breach of the contract the plaintiff was entitled to recover from the defendant as damages the value of the contract which he held:' This value was for the jury to1 determine upon such material facts as were' capable of proof. The plaintiff could prove his experience in the business of issuing special editions of newspapers, the population and industries and business importanee of Scranton, and like facts, and the character of defendant’s newspaper, how many pages of paid advertisements the defendant actually obtained for the special edition afnd the prices paid, and it would then become a question for the jury to determine upon all the facts and without any opinion on the subject, upon deducting all the expenditures which the plaintiff would have been put to had he completed his contract, what, if anything, he had lost by being prevented from completing. While all these facts taken together might not form any certain basis as to what the plaintiff lost they would be the best, from the nature of the case, which could be proved, and upon them the jury could base its conclusion.

Personally, I am of the opinion that the written contract, inspected in the light of defendant’s interest in protecting the patrons of his newspaper from exorbitant charges for advertising, shows on its face that it is incomplete and that it, therefore, comes within the exception to the rule as to oral evidence pointed out in Eighmie v. Taylor (98 N. Y. 288) and Studwell v. Bush Co., Ltd. (126 App. Div. 818), and hence that parol evidence of an agreement that advertisers should not be charged more than $250 per page was admissible ; but the other members of the court are of the opinion that such evidence tended to vary the terms of the written contract and was, therefore, properly excluded.

The defendant’s answer failed to plead an accord and satisfaction, but on the trial the court permitted an amendment setting up that defense. Even assuming that the court had power' on the trial to permit an amendment of such a character, the defendant failed to prove such a defense. There were negotiations toward a settlement and defendant sent two checks to plaintiff who kept them — one for about a month and the other for about six weeks — and finally returned both of them refusing to accept them in satisfaction of his claim. While the checks were kept an unusual length of time they were finally returned, and the learned trial court properly charged the jury that an accord and satisfaction was not proven.

The jury were permitted to give in addition to the general damages which they deemed plaintiff had suffered from breach of the contract, special damages for the advertising contracts which plaintiff’s canvassers had- obtained and which the defendant used and carried out. This was erroneous because such special damages formed a part of the general damage which plaintiff sustained from the breach of the contract by defendant.

The judgment and order must be reversed and anew trial granted, with costs to the appellant to abide the event.

Ingraham, Laughlin and Clarke, JJ., concurred.

McLaughlin, J.

(concurring):

I concur in the opinion of Mr. Justice Houghton in so far as he directs a reversal of the judgment and for the reasons stated by him. I do.not, however, agree with him that the court properly charged the'jury “that anraccord and satisfaction wasnot proven.” The. answer was amended at the trial, and an accord and satisfaction was pleaded as a defense. The propriety of the amendment is not presented on this appeal. When the defendant sent the plaintiff the two checks in question' he notified him that the same were in full payment. The plaintiff was then bound to promptly return the checks, or else accept them upon the conditions imposed. It was for the jury to say whether he did not, by retaining the checks the length of time he did, intend to accept them iri full payment of his claims.

I am of the opinion that the court erred in holding, as matter of law,, that the defense of accord and satisfaction was not proved.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  