Scottish Court of Session Decisions

Alexander Murray, bookseller and stationer, 271 Union Street, Aberdeen, contracted in November 1890 with Alexander Marr, residing at 23 Carden Place, Aberdeen, for the insertion in his newspaper, the Daily Free Press, of a business advertisement consisting of one column in the front page of the newspaper, at the rate of £10, 10s. per month, as he had done in the two previous years at the Christmas season.

Upon 27th November 1890 Murray wrote a letter to Marr, in which he said, inter alia,—“Dear Sir,—I have yours of 24th in regard to my query anent price for column in Daily Free Press for twelve months on end on front page. I would be inclined to go in for twelve months of it provided you could do it at the same rate as you are doing it at present—£126 per annum. I may state that when I wrote making the inquiry I was under the impression I would get it at a little less than I was presently paying for it, seeing I was taking it for such a length of time,” &c.

The answer on 1st December 1890 was in these terms “Dear Sir,—In reply to your offer of 27th ulto., we agree to insert an advertisement to occupy the space of one column on first page of Free Press daily for twelve months for the sum of £126 per annum, it being understood that your advertisement may be inserted on any other page during the currency of the twelve months for not more than forty times should we be requiring the space for company or other high-priced advertisements.”

Upon 18th December 1890 Murray issued a circular letter marked private to a number of publishers, in which he stated:—“Gentlemen—I have resolved, with the aid of the publishers, to push the bookselling in our university city, with a population of over 120,000, in a way never attempted before, and to this end I intend taking a column of 20 inches in length on the front page for twelve months from January 1891, in the principal daily newspaper, which has a very large circulation in town and country. This space will be filled with a list of new and recently published works, a change being made at least once a week. A column in this paper is so valuable that the proprietors asked over £300 for it for the twelve months. As this will be a mutual benefit, I only ask £12 per inch per annum, payable on July 1st, 1891. If you agree to take one inch or more, which would be the means of keeping your books always before the public in the north of Scotland, I will expect you to send me weekly (say on Saturdays) the list of books you want to appear in the following week's paper. An inch should hold the names and prices of 8 or 9 nine books.”

Two publishers, Mr Walter Scott, Durham, and Messrs Macmillan & Company, London, agreed to pay for a certain amount of space in his advertisement.

Upon 5th January 1891 Murray sent to the Free Press a copy of an advertisement headed—“New books just published, and to be had at Alexander Murray's, 271 Union Street, Aberdeen. The usual discount allowed for ready money. All orders by post receive immediate attention.” Then followed a list—“Macmillan & Company's new books,” “Longmans & Company's publications,” and the names of nine other well known publishers, under each of which appeared a list of their books. At the end of the list the following words occurred—“The above books supplied at the usual discount rate for ready money by Alexander Murray, bookseller and stationer, 271 Union Street,

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Aberdeen.” The Free Press refused to insert this advertisement tendered, on the ground that part of the space contracted for had been farmed out to different publishers.

Upon 22nd January 1891 Murray raised an action in the Sheriff Court at Aberdeen for £50 damages against Alexander Marr, the printer and publisher of the Daily Free Press newspaper.

The pursuer pleaded—“The defender having made a contract with the pursuer, and having refused to implement it, to the pursuer's loss and damage, is liable in reparation to the pursuer, with expenses.”

The defender pleaded—“(2) Separatim, defender had a right both by custom of trade and at common law to reject any advertisement until submitted to him for approval, and until approved of by him. (3) The proposed advertisement not being in terms of the agreement between the parties, and there being no consensus in idem placitum, defender was not bound to insert it. (4) The agreement having been entered into under essential error is not binding on defender.”

Upon 25th June 1892 the Sheriff-Substitute ( Brown), after a proof, found—“(6) That it is admitted by the pursuer that in entering into the contract for a column of the defender's newspaper for his business advertisements, he had in view to enter into sub-contracts with various publishing firms under which, upon an arrangement of terms with him, they should have a portion of the space contracted for with the defender assigned to them for advertising their publications; (7) that the pursuer had never under previous contracts with the defender made such use of the space contracted for, and that the pursuer withhold from the defender, or from Mr Bruce on his behalf, that he intended to make the arrangements above mentioned, or to offer advertisements for insertion in the defender's newspaper giving effect to these; (8) that after said contract was concluded the pursuer put himself in communication with a number of well-known publishers offering to sublet a portion of the space contracted for by him, and came to an agreement with two of said publishers; (9) that it is proved by the defender that the sub-letting of such a contract in the manner proposed and actually carried out by the pursuer would operate to the prejudice of the defender's newspaper by withdrawing valuable custom which the defender might otherwise hope to obtain under contract on his own account, and by derogating from the defender's right to superintend and approve of all advertisements entering his newspaper: (10) that on or about 5th January 1891 the pursuer as in implement of said contract tendered to the defender the advertisement of which No. 16 of process is a proof copy: Finds in law that the contract between the parties falls to be interpreted along with its surrounding circumstances and the course of prior dealing that preceded it, and that having been entered into under essential error on the part of the defender, and there being therefore no consensus in idem placitum, the pursuer cannot found on the defender's rejection of his advertisement as inferring a breach of contract: Therefore sustains the defences, assoilzies the defender from the conclusions of the action, &c.

“ Note.— … On the merits, however, I cannot assent to the conclusion that the defender has involved himself in damages as for a breach of contract. It is unfortunate that neither the principal nor a copy of the pursuer's letter of 24th November asking a quotation has been produced, but there is no suggestion that its terms are not sufficiently indicated in his later communication of 27th November. That is his offer marked ‘accepted’ by Mr Bruce, and it is important to note that in it he makes distinct reference to his then subsisting contract with the defender, stipulating for the same rate at which he had a column of the newspaper for a more limited period, and suggesting indeed that he had looked for a reduction. The advertisements which the pursuer had been in use to have inserted in the Free Press prior to that date were of a wholly different character, as instructed by the productions, from that in question, being simply a promiscuous list of books and articles, such as a bookseller and newsagent is in use to retail. Admittedly, in entering into the extended contract, the pursuer had in view a new departure, and it appears to me that the turning point in the case was his withholding that from Mr Bruce, who had otherwise no reason to suspect what the pursuer contemplated. The pursuer makes it perfectly clear what he intended, and it may be fairly summarised by the words—‘I contracted for a column of the newspaper. I knew what was in my own mind. I said nothing as to the use I was to make of the advertising space, and I neither know nor care what was in the mind of Mr Bruce.’ The pursuer, in other words, takes his stand upon the contract, which, he maintains, is explicit and unambiguous, and demands his rights under it. The agreement is clear enough so far as it goes, but making reference, as it does, to the prior dealing between the parties, I think it falls to be interpreted as made with that in view, and with all other surrounding circumstances. The evidence makes it quite clear—not his own merely, but that of the representatives of three great newspapers, the Scotsman, the Glasgow Herald, and the Dundee Advertiser—that Mr Bruce would not have looked at the offer had he had even an inkling of what the pursuer intended to do. The pursuer's position is that Mr Bruce was bound to make inquiry, and that he was not bound to help him in safeguarding his rights, but I apprehend the principle is a sound one, which has been laid down in two leading English cases— Veneguela v. Kisch, L.R., 2 H. of L. 99, and Redgrave v. Hurd, March 14 and 15, 1881, 20 Ch. Div. 1—that where there has been wilful concealment of facts by which a person has been induced to enter into a contract, it is no answer to his claim to be

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relieved from it that he might have known the truth by proper inquiry.

In terms, the pursuer does not contend that in farming out the space assigned to him he had not in view to alter his subsisting relations with the newspaper, but in maintaining that the advertisement tendered fell within the contract he practically does so. It is therefore necessary to consider what he actually did. I do not indeed intend to follow the defender into his exposition of the alleged inaccuracies of the pursuer in corresponding with the various publishers. That is a matter which concerned them only, and I do not see that it reflects any light on the case additional to the pursuer's declared purpose. Taking the correspondence with Messrs Hodder & Stoughton as an example, it appears that on 18th December the pursuer urged upon them to take three inches of the advertising space, to be charged for at the rate of £12 per annum, and that on the 29th of the same month he calls on them to furnish ‘your list of new and recently published works for space in my column in Aberdeen Free Press.’ There is, I conceive, no doubt as to what that means. The various publishers were to enjoy the right of having their books advertised in the space contracted for by the pursuer, for a consideration to be paid to him, and his interest in the advertisement beyond that was the plainly subordinate one that by placing his own name at the top and foot of it, he certiorated the public that he had in his warehouse these books for sale. He had not made much way with his scheme of subcontract, but he himself says that he took a sanguine view of inducing the publishers to fall in with his arrangement, and what the defender urges is that he was thereby robbed of a share which under independent contract an extensively circulated paper might have expected to make in a lucrative branch of business in an important and highly-educated district of the country. In my opinion that is a formidable plea, and although I do not attach much weight to the argument that the newspaper was compromised by the apparent surrender of the right of supervision, that point in the circumstances being barely a practical question, I think the defender fully establishes that he is injuriously affected by an interpretation of the contract which was not in view of the parties who entered into it, and is only justifiable on the footing that the pursuer was entitled to withhold an essential fact, the disclosure of which would have prevented any contract being made at all. In the case of Davis v. Haycock, July 2, 1869, L.R., 4 Ex. 381, it was observed—‘It is the essence of a contract that there should be a concurrence of intention between the parties as to the terms. It is an agreement because they agree upon the terms, upon the subject-matter, the consideration, and the promise,’—and the result of my opinion practically, therefore, is that the defender contracted under essential error, and that the contract being thereby vitiated, he was entitled to rescind it by rejecting the pursuer's advertisement, and is not liable in the present claim.”

Upon 16th July 1892 the Sheriff ( Guthrie smith) recalled the above finding in law, and found in law “that under the contract libelled the space allotted to the pursuer for his advertisements could not be sold or assigned to others without the defender's assent, and that the defender was entitled to refuse advertisements framed in violation of this principle.

“ Note.—The Sheriff-Substitute has decided this case on the ground of essential error induced by the pursuer's failure to explain that the kind of advertisement which he had in contemplation was different from the advertisement which he had hitherto been publishing under similar contracts in the defender's newspaper. This is the view presented in the pleadings, and I do not say that there is not evidence to support it were it necessary. But it assumes that the pursuer's construction of the contract is right, and is in fact the only possible construction, which I think is a mistake. I prefer to say that when a man contracts with a newspaper for so much space in its advertising columns, the meaning is that it shall only be used for announcements connected with its own business, and that he cannot sell or assign any part of the allotted space for the use of others unless the contract contains a condition to that effect. It is evident that the right acquired by the advertiser under such a contract is necessarily subject to certain limits. The publisher of a newspaper is as responsible for what appears in its advertising columns as any other part of the paper. The advertisement must not be libellous or indecent. It must not conflict with the recognised opinions of the journal—political, social, or religious. Nor will any respectable journal allow itself to be made a vehicle for the dissemination of announcements intended to defraud, or quack advertisements, betting advertisements, and the like. The right, therefore, which is acquired by the advertiser is in no sense of the word entirely under his own control, and it must be always subject to very considerable qualifications. Further, it is nothing but a privilege—a privilege which he may use or leave unused just as he pleases, subject to this, that at the end of the term the stipulated price has to be paid. Now, it is a well-settled principle in law that under a contract which simply confers a privilege and infers a delectus personæ, the right created is generally strictly personal to the party, a principle applied to the case of a shooting lease in Fyfe v. Wilson, 3 Macph. 323, mainly because of this element of delectus personce. It is, of course, assignable like any other contract, but only when the contract itself permits it or the other party consents. I think that when a newspaper surrenders to an advertiser a certain portion of its space for a lengthened term, it will carefully consider the character of the person with whom it is dealing, and that there is the strongest delectus personæ. There are booksellers and booksellers, and while a well-conducted journal may be quite ready to advertise the wares of a respectable bookseller, it will

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scorn to have its columns soiled with the advertisements of a shop in Holywell Street. Another fact which is pointed out by some of the witnesses must not be forgotten—that no newspaper would ever agree to the right being assignable were such a thing proposed except on strict conditions, for otherwise the contractor by offering cheaper terms might withdraw some of its regular customers, and thus in effect come into competition with the newspaper itself. These views appear to be in accordance with the understanding and practice of newspaper men, and although the question is, as far as I know, entirely new, it will I conceive be for the public benefit and the due protection of an important interest if they are now judicially recognised. The conclusion therefore to which I come is, that while there is here a perfectly good contract binding on both parties, under which the pursuer acquired the right to have his own advertisements duly inserted in the Free Press for the stipulated term, he was not entitled to sell or farm out the right to other people, and that the defender, whenever he discovered that he was making this use of it, was entitled to stop it. There is therefore no case for damages as the Sheriff-Substitute has decided.”

The pursuer appealed, and argued—There was a contract between the pursuer and the defender who was bound to advertise whatever the pursuer sent as an advertisement within the line of his own business. He advertised the books which he sold or was willing to procure for purchasers, and he catalogued them under the heading of their different publishers, but the books were advertised to be sold by him. It was the same where any retail dealer, who sold an article made by a wholesale manufacturer, advertised it—the advertisement was of the retail dealer's wares, and not an advertisement of the wholesale manufacturer. In regard to the alleged custom of trade, there was no averment concerning it on record, and no evidence of it at the proof. No doubt the pursuer had tried to get various publishers to take inches of space from him at a higher rate than he was paying to the newspaper, but that was entirely a matter for himself and the publisher, and outside the contract. Only two publishers had taken a small space in the column, but the newspaper had rejected the whole advertisement. There was no proof that the publishers of books whose names appeared in the advertisement would ever advertise in the paper at all. The advertisement was primarily for the benefit of the pursuer, and if incidentally the publisher was benefited that was not a matter for the newspaper. It was admitted that newspaper authorities had the right to refuse any advertisement of an obscene or libellous nature. In this case although no actual damage could be proved, yet as trouble and inconvenience had resulted there must be substantial damages— Webster & Company v. Cramond Iron Company, June 4, 1875, 2 R. 752.

The respondent argued—The contract as contained in the letters imported the former contract of advertisement into the present contract. That former contract was for the sale of fancy articles, and not for the kind of advertisement the pursuer sent under the present contract. The important part was that it was to be Mr Murray's own advertisement. This was not his own advertisement, it was an advertisement of the publishers mentioned in it. The pursuer had sold the right of advertising in certain parts of the column. In the letter to the publishers he had given them the right to say what books they wished to advertise, and not what books he wished to advertise. In that way he had alienated his right in the column, and the newspaper was entitled to reject it as not being the pursuer's advertisement which he had contracted for. Parole evidence was admissible to show what was meant by the expression “your advertisement”— Macdonald v. Longbotham, 27th May 1859, 1 Ellis & Ellis, 977. A newspaper must have complete control of its advertisements, and is entitled to reject any advertisement offered even although it is not libellous or indecent.

At advising—