Standard Printing Co. v. Democrat Publishing Co.

Newman, J. The finding and judgment seem, to be consistent with the case made by the complaint, and embraced within the issue (R. S. sec. 2886; Lemke v. Daegling, 52 Wis. 501), although not following very closely the case made by either complaint or answer alone. At the time Avhen the plaintiff began to publish the Brown County Democrat newspaper, the defendant had no existence. The newspaper was then owned by Smith and McGeehan. It was published by the plaintiff for them. The defendant was organized January 2, 1880, Smith and McGeehan being the principal stockholders. From that time it owned the newspaper; from that time the publication was for the defendant. There does not appear to have been any express agreement made, at the time when the defendant became the owner, as to the terms upon which its future publication was to be made. The finding is silent upon this point; but it goes upon the theory that there was no such express agreement. It finds, in effect, that the newspaper was published for the defendant, for one year after January 2,1889, upon the implied agreement that the defendant should pay for the service such sum as it should be reasonably worth. The principal dispute is upon the question of the rate which Avas to be paid for the service. Manifestly, this must be such sum as the services are reasonably worth, unless some other sum or rate is agreed upon. It was alleged and controverted upon the trial that the plaintiff had done the same work for Smith and McGeehan, by agreement, for what profit it could make out of the publication of the newspaper. And the main contention at the trial seems to have been on this point. Here seems to have been the stress of the trial, on the theory, apparently, that the court could or should infer that the work was to be done for the defendant upon the same terms as it had been done for Smith and McGeehan. This was really only a collateral [129] issue. Its decision could not be controlling of the case; for, whatever the fact, it was but evidence, more or less persuasive, upon the question, What was the agreement upon which the work was done for the defendant ? And it was a serious question whether the court ought to infer a promise by the defendant to abide by the previous contract •of Smith and McGeehan, however clearly established. Buffington v. Bardon, 80 Wis. 635. The trial court made no finding upon this collateral issue, but upon the material issue of what was the agreement between the plaintiff and defendant it did find, in effect, that the work was done upon an implied promise that the plaintiff should be paid for it such sum as it should be reasonably worth. It cannot be held that the finding is not sustained bjr the evidence, nor that it is against the weight of evidence, whatever may have been the agreement between the plaintiff and Smith and McGeehan for the previous work. By the Court — The judgment of the circuit court is affirmed.