Duplex Envelope Co. v. Baltimore Post Co.

Parke, J., delivered the opinion of the Court. The plaintiff has long been established in the business of supplying religious bodies with a special form of envelopes for use in weekly church collections. In the development of this enterprise, the plaintiff adopted the device of printing-on the backs of the envelopes exhortations, with the twofold object of stimulating a constant attendance at church services and a liberal and regular contribution for church purposes. ⁵⁹⁹ The content of this printed matter was different every Sunday; it was introduced by an appropriate text from the Bible, and its composition was by eminent divines or competent writers. In 1929 the plaintiff attempted a further development by selling this printed matter to selected newspapers for publication every week as a part of the section of the newspaper that was customarily allotted to the printing of matter relating to the various religious denominations of the place of publication.

The plan was for the plaintiff to furnish the subscribing newspaper, during the year of its subscription, with fifty-two full page mats containing the weekly printed matter which would appear on the back of the collection envelopes, and the advertisements, which were to be printed in association with this printed matter. From this mat or mold as the matrix, the contents for publication were readily stereotyped for the weekly printing. In addition, the plaintiff furnished printed copies of this page, in order that the publishers of the newspapers would have it for exhibition in the solicitation by them of advertisements for appearance on the page to be published; and the plaintiff further supplied a list of the churches, with the names of their respective ministers, treasurers, and members, which used their collection envelopes, and other information and suggestions, which would all be informative and valuable to the newspapers, and which would give them access to a group of desirable prospective advertisers or readers, with a plausible reason for their approach and solicitation in the concerted effort by the representatives of the newspapers to obtain advertisements. The particular newspaper was to be paid for the advertisements printed in its journal by the advertisers whose names would he published as sponsors of the page.

Thirteen of the weekly, mats would be shipped, by the plaintiff at a time so that the advertising for a quarter of the year would he available at one time. The further details of this plan need not be set forth, as. its nature, advantages, and appeal are sufficiently disclosed. In brief, the plan of campaign was furnished by the plaintiff, and its execution was the task of the subscribing newspaper. ⁶⁰⁰ The defendant is a corporation engaged in publishing a daily newspaper in Baltimore City, and is one of a number of associated newspapers known as the Scripps-Howard chain of newspapers. On August 6th, 1929, the plaintiff sent a lengthy communication to the defendant outlining the plan, and offered it for the consideration of the defendant as a means of selling advertising space.

A form of a proposed ■contract was inclosed, along with specimens of what would be supplied by the plaintiff in fulfillment of the contract. In the form of contract which the plaintiff had sent were these terms: “Por this service the subscriber agrees to pay the Duplex Envelope Company ten per cent (10%) of subscriber’s local noncontract page rate, due and payable in monthly instalments on the first day of each month commencing Pebruary 1, 1930. “If any instalment remains delinquent for a period of thirty (30) days, the entire amount of the contract shall become immediately due and payable at the option of the Duplex Envelope Company. “In consideration of contracting for the entire Scripps-IIoward chain of newspapers, the Duplex Envelope Company agrees to allow twenty-five per cent (25%) discount off its gross billing to the subscriber, and in addition agrees to use advertising space in the paper below listed, at some time during the year, in the aggregate of one (1) full page, and agrees to accept billing for this page at the foreign rate as published in the rate book of the Standard Bate and Data Service. Payment for this advertising to be made by deducting the amount of the bill from the final amount due The Duplex Envelope Company under this agreement, for its service. “The foregoing to equal, after charges and allowances and deductions have been made, the sum of _ V “It is understood that all agreements are merged in this contract, and that it is not subject to cancellation.” ⁶⁰¹ The defendant considered the matter and sent to the plaintiff on August 13th, 1929, this telegram: “Tour contract calls for ten per cent, local non-contract page rate. We have special church rate, is it satisfactory for us to change this to local church contract page rate on your contract.” The next day the plaintiff replied by this telegram to the defendant: “Satisfactory to substitute in contract ten per cent, of local church rate providing this will net us not less than twenty dollars a week, after deducting twenty-five per cent, and cost on full page advertising to be taken by us.” After this telegram was received by the defendant, a letter under date of August 14, 1929, was mailed to and received by the plaintiff.

It is as follovra: “The Baltimore Daily Post “Baltimore, Md., August 14, 1929. "Mr. M. O. Jones, Presdt., Duplex Envelope Co., Inc., Richmond, Va. “Dear Mr. Jones: I am enclosing in this letter signed contracts changed to read local Church Contract Page Rate in accordance with your telegram of the 14th. “This will assure you of not less than $20 a week, after deducting 25%, if all the Scripps-TIoward Newspapers subscribe. If not enough to cover cost of full page advertisement to he taken by you, we will work this out satisfactorily with you. “I believe your proposition will go over very successfully in Baltimore, and you can rest assured we will go the limit to make it productive for all concerned. “In your original presentation you mentioned that you would send us the list of Churches using these envelopes, also Pastors in charge and possibly the leading members of the Vestry. ⁶⁰² “I might suggest, if you secure data on the way some of the papers are putting this over in their fields, it will be valuable to the rest of us so that we may profit by the experience of others. • “Very truly yours, “The Baltimore Post, “J. C. Plagg, Business Manager.” The duplicate contracts forwarded with this letter were signed and dated on August 14th, 1929, by the defendant, the Baltimore Post, with the change to “local church contract page rate” inserted, and were received in due course of mail on August 15th, 1929, when the plaintiff wrote the defendant an acknowledgment and forwarded the defendant one of the duplicate contracts which the plaintiff had executed after its receipt from the defendant. The importance of this letter requires it to be reproduced: “August 15th, 1929. “Mr. J. O. Plagg, The Baltimore Post, Business Manager, Baltimore, Maryland. “Dear Mr. Plagg: We have and thank you for your letter of August 14th, enclosing signed contract for the Duplex National Church Advertising Campaign, one copy of which we have executed and are returning herewith. “This is with the understanding that the net cost to you is no.t less than $20.00 per week or $1,040.00 for the year after deduction of 25% discount special allowance for the Seripps-Howard papers and the cost of pne full page advertisement to be used by us. “Por billing purposes, will you please advise what your local contract church rate is, which information you did not give us in your letter? “We will send you today two copies each of all of the material to be used by your solicitors, and will have tomorrow a list of our customer churches in Baltimore, with the name of the pastor; and will also send you then a suggested plan for solicitation of the sponsors, which we believe will be of great value and make it easy to sell the page. ⁶⁰³ “We are delighted to have The Baltimore Post with us in this campaign, and we hope that the campaign will he productive of much good to the city of Baltimore generally. “With all good wishes, we are “Cordially yours, “The Duplex Envelope Company. “SGM :IM S. G. Mason, Director of Service.” The jdaintiff shipped to the defendant the mats in accordance with the contract.

The plaintiff never recei ved any notice that any of the mats or supplies which had been shipped by the plaintiff to the defendant were not accepted or had been returned by the defendant. In fact, the defendant wrote the plaintiff under date of December 29th, 1929. “Received the mats shipped us November 13th in A1 shape. Am just wondering if you will forward me as soon as possible half-dozen sets of the original presentation on the Church Pages. “Incidentally, if you have any additional ideas as result of putting this campaign over in other cities since original prospectus was sent out, will appreciate your forwarding me all information possible as we are having considerable difficulty here in Baltimore.” In compliance with the request, the plaintiff forwarded the desired articles and gave the requested information. Again, in reply to the plaintiff’s request, the defendant wrote to the representative of the plaintiff this letter, bearing date April 11th, 1930: “Mr. E. L. Tignon, Duplex Envelope Co., Richmond, Ya. “Dear Mr. Tignou: Erankly, Mr. Tignon, 1 have been holding up the remittance on the Church Page due to our inability to get the page over in Baltimore.

I understood all of our papers are having this same difficulty. I haven’t given up the ‘ghost,’ I have had three different parties and I am still hoping we can get enough to enable us to start the feature. ⁶⁰⁴ “I know you are just as interested as we are iu putting this feature over and I am wondering if you have any suggestions or can offer me any assistance. “Very truly yours, “The Baltimore Post, “J. O. Plagg, Business Manager.” Then when the plaintiff, through O. W. Page