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LEVINSON v. EVENING STAR NEWSPAPER CO.

November 17, 1955

Al LEVINSON and Jack Wertz, t/a The Washington Liquidators, Plaintiffs,
v.
The EVENING STAR NEWSPAPER CO., Defendant



The opinion of the court was delivered by: MCLAUGHLIN

This is an action grounded in breach of contract, it being alleged that the contract was entered into between plaintiffs, trading as The Washington Liquidators, and the defendant, The Evening Star Newspaper Company, by which the defendant contracted and agreed to accept an advertisement tendered by the plaintiffs or its agents; and that the defendant under the agreement undertook to publish four copies of the advertisement on four succeeding Sundays; and that after publication of the first advertisement the defendant failed, neglected and refused to publish any additional advertisements.

The plaintiffs allege that as the result thereof the plaintiffs were caused to suffer damages, and plaintiffs sue for said damages.

 The two plaintiffs are engaged in the jewelry business in different parts of this country. They have engaged in the business separately, but in a number of occasions have engaged together in the practice of purchasing stocks of jewelry from various sources, estates, and other sources, including the purchase of stocks of jewelry from companies who sell their stocks of jewelry en masse and cease to do business.

 The situation that is outlined in the evidence indicates that the facts are substantially that the two plaintiffs came to the City of Washington after having heard from an outside source that the Heidenheimer stock of jewelry could be purchased en bloc or en masse; that they contacted the Heidenheimer Jewelry Company or the president thereof, and learned that that fact was true; that they then sought to secure from newspapers the right to publish advertisements advertising the sale of the stock; that they called on two newspapers, and they were refused the right; that they then called on the retail advertising manager of the defendant company, and a conversation took place on the 18th day of August, 1951, at which time the retail advertising manager of defendant, Mr. Aiello, stated at the conclusion of the conversation that he would have to check the matter with the advertising manager, Mr. Godfrey Kauffman, and that he would advise the parties plaintiff the next day.

 There is evidence that the next day the retail advertising manager advised the plaintiffs that the advertising would be accepted, and there is a conflict of evidence as to whether the acceptance was conditioned on the approval of the advertising manager or the checking of the advertising by the Better Business Bureau. At any rate it was understood and agreed between the parties that the advertisement would be run.

 The plaintiffs then employed an advertising agent, Mr. Heller, and Mr. Heller and his organization prepared the copy and submitted same to the defendant company. The defendant company's agent, Mr. Aiello, agreed that it had been submitted, but that it is customary to submit the second copy, and that no second copy was received. It is agreed, or established by the evidence if not agreed, that the one-page advertisement was run in the paper of the defendant on Sunday, September 16, 1951; and that on September 21, 1951 the advertising agent received a letter thanking him for the business without reference to the contents of the advertising; that on the following Sunday no advertisement appeared in the Washington Star as contemplated by the agreement which plaintiffs contend they made orally.

 In the meantime, on September 11, 1951, prior to the publishing of the first advertisement on September 16, 1951, the advertising agent, Paul Lynn Heller, Advertising, Inc., by Paul Lynn Heller, as president, signed what is captioned 'Local Advertising Contract' calling for the advertisement to the extent of 5,000 lines of display advertising at the rate of 31 1/2 cents per line, the date of September 16, 1951 being inserted as the beginning date.

 In the contract signed by the parties just mentioned the terms are set forth on the reverse side, and there appears as a separate paragraph under the word 'Terms' the following: 'The right to reject, discontinue or omit any advertisement or parts of advertisements is expressly reserved.'

 The witness for the defendant, Mr. Aiello, the retail advertising agent, referred to previously in this statement assigned his reasons for not publishing the material after the first issue, and numerous grounds and reasons are set forth, summing up to a position on the part of the defendant newspaper company that the material was objectionable because it was misleading from many standpoints, among which were: That the headline that the Edward Heidenheimer Company was retiring from business was not a fact in that that company had already retired; that there was a representation that the goods were the goods of the Edward Heidenheimer Company, whereas the goods were largely made up of other goods shipped in from other sources, and that that fact was referred to in such a minor way as to constitute the misleading statement; that the princing of the goods did not conform with the practice of defendant company; that it was misleading because it carried the implication that the Edward Heidenheimer Company was conducting the sale, whereas said company was not conducting the sale; that the word 'liquidation' prominently displayed was misleading since it meant a 'liquidation sale' of a stock whereas it was in reality a 'going out of business sald' which is a different type of sale; and further it was misleading for the reason that there was added to the material which was being sold out of the Heidenheimer stock a very substantial amount of stock from other sources; that the statement in the advertisement 'Savings beyond belief' was not true for the reason that many of the items purchased by the plaintiffs from the Heidenheimer Company were in fact being sold for prices larger or greater than those prices at which the Heidenheimer Company had been customarily selling those items; and lastly, that it was not in fact an 'Edward Heidenheimer' sale, but it was in fact what the witness characterized a 'Wertz-Levinson sale.'

 The issues were delineated by the parties at the outset of the case. There is a conflict of evidence on a number of points, such points as whether or not the Better Business Bureau approval was mentioned between the parties, and whether that was the real basis for the cancellation or noncontinuance of the contract, or whether the defendant company ceased to run the ad for the reason that it was harmful to other companies in the City of Washington engaged in the jewelry business. Plaintiffs contend in that respect that the retail advertising agent, Mr. Aiello, so stated on the telephone the morning after the ad failed to be published on the second Sunday, which telephone conversation is denied by the witness Aiello.

 The issues, as agreed upon in substance by the parties were as follows:

 Was there a contract between plaintiff and defendant entered into prior to August 20, 1951?

 Second, was the instrument signed by the signatories on September 11, ...


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