Opinion
No. 4968.
Argued November 7, 1961.
Decided January 29, 1962.
1. In an action to recover a balance due on an oral contract for the promotion of advertising programs it could properly be found on the evidence that the parties entered into a definite and divisible contract at a specified amount per week and that it was substantially performed by the plaintiff to the time of termination by the defendant and that the plaintiff was entitled to compensation for services performed to the date of termination.
2. In an action to recover the balance due for services rendered under a divisible oral contract at an agreed rate per week evidence tending to show that the plaintiff had been overpaid on a quantum meruit basis was properly excluded where there was no indication that recovery was allowed on that basis.
Action of contract to recover an alleged balance of $5,000 for services rendered by the plaintiff to the defendant. Trial by the Court (Morris, J.). Verdict for the plaintiff in the sum of $3,000. In the course of the trial the defendant excepted to certain evidentiary rulings, and to the denial of its motions for a nonsuit and a directed verdict. Its motion to set aside the verdict was also denied subject to its exception.
The action arises out of an oral contract between an agent of the defendant in New Jersey, and the plaintiff, doing business in New York City as an advertising consultant promoting advertising programs by radio and television. The only witnesses to testify at the trial were the plaintiff and the defendant's president, William A. Lincoln. While the latter testified that the defendant's sales manager in New Jersey had no authority to carry through any advertising program for the company, it appeared that the witness, as president, was familiar with the proposal agreed to and made payments on account of the plaintiff's services aggregating $4,000.
The plaintiff's specification alleged services performed for ten weeks between March 9, 1959 and June 12, 1959 excluding the month of April, at the rate of $1,000 a week.
From correspondence between the parties received in evidence, it appeared that the defendant's original commitment was for $25,000. A letter from Mr. Lincoln to the plaintiff under date of May 15, 1959 indicated his understanding to be that the plaintiff was to arrange for advertising for a six-months period over 400 radio stations of the Mutual network for a total of thirteen "spots" week and over eight different daily television shows, once a week on each show.
In reply under date of May 18, 1959, the plaintiff by letter stated that the original understanding was for "a minimum of 4 network T. V. plugs per week in the 8 shows that were listed in the brochure, plus participations on at least 12 network radio shows per week . . . [plus] extra shows from time to time."
With respect to the contract with the defendant, the plaintiff testified that he was to receive one thousand dollars a week for twenty-six weeks, out of which he was to pay all expenses "to get as much [advertising] as I could get." The defendant's president testified that the plaintiff was to arrange for thirteen radio spots per week over four hundred stations, and a total of eight television spots a week; but conceded with respect to the latter, that the plaintiff "may have said that he only agreed to four of them, but my understanding at the time was it was something like that."
The defendant's president on May 21, 1959 forwarded the plaintiff the sum of $1,000 on account, having previously paid $2,000 in April and $1,000 in May. His letter of May 21 specified that the enclosed payment was "for the week ended May 16, 1959, pending receipt of certifications of airing for the balance of April." Earlier correspondence indicated some dissatisfaction on the part of the defendant's president with the "certifications" concerning programs upon which advertising was appearing. However the letter of May 15, 1959 expressed appreciation for the "work you have done for us" and commented that the plaintiff was "very clever to get us on American Bandstand," which was a television program not listed upon the "brochure" referred to in the plaintiff's letter quoted above.
Under date of May 28, 1959, the president wired and wrote to the plaintiff requesting "immediate cancellation of entire advertising program, for reasons previously indicated," and stating "we shall definitely make no payments in respect to . . . advertising carried out after June 6." The plaintiff testified that certain shows were then scheduled to run to June 20, but that he managed to cancel the program within two weeks after the defendant's cancellation order. Other facts are stated in the opinion.
Reserved and transferred by the Presiding Justice.
Samuel A. Margolis (by brief and orally), for the plaintiff.
Sullivan Gregg and Sherman D. Horton (Mr. Horton orally), for the defendant.
From the evidence before the Court it could properly be found that a definite contract for the plaintiff's services was entered into by the parties, and that it was substantially performed by the plaintiff up to the time of termination by the defendant. The plaintiff testified that from February until July 1 the defendant's advertising appeared daily from Monday through Friday upon two of the Mutual network radio programs. Other testimony indicated that it likewise appeared upon other radio programs on Fridays and Saturdays. It could be found that the defendant's advertising likewise appeared upon four of the television programs noted by the brochure, and in addition upon the "American Bandstand" program, concerning which the defendant's president had offered special commendation, as well as on two other programs. The defendant acknowledged receipt of various tapes, records and certifications, of advertising procured; and various television programs were personally viewed by its president.
The plaintiff's specifications showed charges of $10,000 for ten weeks services, and credits totaling $4,000 received of the defendant, plus a credit of $1,000 "voluntary discount by the plaintiff" which the plaintiff testified was given "because, you know, he told me he was in straits, and I says, `I will . . . make it five thousand even.'"
In making the payments which totaled $4,000, the defendant's president indicated by his letter of May 21, 1959 that the payments were for the period ending May 16, 1959. Since the defendant indicated on cancellation that it would not pay for advertising after June 6, the Trial Court could properly find it obligated to pay for three additional weeks to June 6 at the rate of one thousand dollars a week. Recovery was denied for an additional two weeks' services claimed by the plaintiff after crediting his "voluntary discount." While the Court made no findings or rulings in writing, the verdict is sustainable upon the record, and the motions for nonsuit and directed verdict were properly denied.
In our opinion the defendant's exception to the exclusion of evidence is without merit. The defendant argues that evidence should have been received concerning the expense to the plaintiff of placing the defendant's advertising, in order to show that "the plaintiff had been overpaid on a quantum meruit basis." It is not apparent how charges for advertising time made by the networks concerned and paid by the plaintiff would tend to establish the value of the plaintiff's services in procuring the time under the competitive conditions which could be found to have existed. Furthermore, there is no indication that recovery was allowed by the Court on a quantum meruit basis (Britton v. Turner, 6 N.H. 481), the contract between the parties being findably a divisible contract at an agreed rate of $1,000 a week. Williston on Contracts (Rev. ed.) ss. 870, 871, 1028. See 5 Corbin on Contracts, s. 1127. Cf. Lemire v. Haley, 91 N.H. 357.
Since the presumptions are that the findings necessary to support the verdict were made by the Trial Court, and the record discloses no error of law, the order is
Judgment on the verdict.
All concurred.