Opinion
No. 44/731.
05-02-1918
TRIBUNE ASS'N v. SIMONDS et al.
Theodore Strong, of New Brunswick, and Sackett, Chapman & Stevens, of New York City, for complainant. Andrew Foulds, Jr., of Passaic, and Lemuel Quigg, of New York City, for defendant Simonds. Andrew Foulds, Jr., of Passaic, and R. W. Candler, of New York City, for defendant New York Herald.
Suit by the Tribune Association against Frank H. Simonds and the New York Herald Company for an injunction to restrain breach of contract. Injunction granted as to defendant Simonds, and denied as to defendant New York Herald.
Theodore Strong, of New Brunswick, and Sackett, Chapman & Stevens, of New York City, for complainant. Andrew Foulds, Jr., of Passaic, and Lemuel Quigg, of New York
City, for defendant Simonds. Andrew Foulds, Jr., of Passaic, and R. W. Candler, of New York City, for defendant New York Herald.
BACKES, V. C. I have very little trouble in reaching a conclusion as to the court's duty upon this application to restrain the defendants. The facts are not in dispute, and the principles of law applicable are not obscure. The motion is before me on bill and affidavits and proofs taken in open court, and presents this situation:
The defendant Frank H. Simonds entered into a written contract with the complainant, the Tribune Association, in January, 1915, to serve it for a period of four years as an editorial writer, and as such to have charge of the editorial page of the New York Tribune, and authority over the hours of labor and terms of employment of other editorial writers, subject only to the direction of the editor in chief and the assistant editor of the paper. As a part of his undertaking, Mr. Simonds covenanted that he "will not write for or contribute to any other publication or periodical during the term of this agreement, except that he shall have the right to contribute to monthly magazines or to weekly magazines, which are not to be published in connection with or as part of any newspaper." This covenant is sought to be enforced, or rather the effort is to restrain its breach.
After Mr. Simonds entered upon his employment, in August following, he made an additional agreement with the complainant to write war articles for the Sunday edition of the Tribune, which were to be syndicated, and for this he was to receive, as he says, $50 a week and a half of the profits of the syndication. Later the agreement was modified as to the compensation, whereby he was to receive $85 per article. He remained in the employ of the Tribune until January, 15, 1918, when he severed his connection as editorial writer, by a formal letter of resignation. In February he bargained with the McClure Syndicate to write war articles for a year, at the rate of $500 a week and a share of the profits of syndicating the articles when the profits reached the sum of $13,000. The McClure Syndicate has been syndicating Mr. Simonds' articles since February, gradually increasing its subscribers, until they now number 73 newspapers, distributed throughout the United States, of which the defendant The New York Herald is one. Mr. Simonds is manifestly violating his covenant, unless it is made to appear that his contract of employment is at an end, by a mutual rescission, which, of course, is not pretended, or that he is absolved from a further performance because of such violation of the contract by the Tribune Association, as evinced an intention not to be further bound by its terms, or, because of such misconduct of the association, inimical to the relation of master and servant, as to make further performance on the part of Mr. Simonds reasonably impossible. That there were such violations and misconduct and that Mr. Simonds was justified in not continuing under the circumstances is the substantial defense put forward and upon which I think the case must turn.
Before disposing of this question, I want to first make mention of two preliminary matters: One suggested, rather than urged, as a violation of the contract on the part of the complainant; the other, which has been pressed with considerable force, that the contract of employment is no longer in existence, having been superseded by a later one which has come to an end according to its terms.
The first is that shortly after Mr. Simonds contracted with the Tribune, in April, 1915, the Tribune Association began syndicating his editorial writings, and continued to do so throughout the term of his service. While this may not have been a part of the arrangement, it does appear that he at all times acquiesced, and I fail to see how it can now be seized upon as having violated his rights; and I may add that it is not assigned by him, nor by his counsel, as having prompted him to quit his contract in January of this year. It had nothing at all to do with it.
The other relates to the verbal contract of 1915, for contributions of war articles to the Sunday edition of the paper and for syndicating purposes. It is claimed that this was a new and superseding contract. It was a new contract, but as such it was distinct and independent of the existing one and in no respect took its place. The written contract involved the services of Mr. Simonds as an associate editor of the Tribune, while the verbal bargain was for another, though kindred, service, for which he was paid additional compensation. The written agreement was for a fixed term, while the oral agreement was indeterminate, being terminable on a two weeks' notice, and in fact it survived Mr. Simonds' resignation. He at no time treated it as altering or taking the place of the editorship contract, for, even after he resigned as editor, he continued to furnish copy for the Sunday syndicate articles, and he stopped writing them only after giving the stipulated notice. Now, the performance of the two contracts is entirely another matter. The subject of the two, it is true, was of the same general character— Mr. Simonds' observations on current war conditions—and the work on the Sunday syndicate contract, it was agreed, was to be permitted to take as much of Mr. Simonds' time from his editorial duties as was necessary; in other words, it was to be done in connection with it as an adjunct to it but this it cannot be said affected the two contracts as independent undertakings. Now, to return to the argument: The insistence is that, the written contract having been superseded by the verbal contract, and that inasmuch as the latter provided for a terminationupon two weeks' notice, which has been given, Mr. Simonds is free. But, as the argument is built upon a faulty premise, it must fall of its own weight.
I will then take up the causes that led to the break. Mr. Simonds was with the Tribune for three years, and as we read his complaint, there were two specific matters, and two only, that caused him to abandon his employer, and upon which he rests his refusal to further live up to his contract. Without particularizing in his answering affidavit, he speaks of disagreements from time to time, but he specifically adverts to but two matters. One was a difference of views as to the treatment, editorially, of last winter's coal situation, in connection with the shutting down of breweries and moving picture houses; and the other was over the preferential placement of an editorial upon the Colgate soap litigation to that of an editorial tribute to the late Congressman Gardner. These two brought on the acute situation that led to Mr. Simonds' resignation, so far as his affidavit discloses details. But we are supplied with particulars of other instances, which perhaps Mr. Simonds had in mind as having caused friction, by the testimony of Mr. Rogers, the vice president of the association, and one of its managers. Mr. Rogers speaks of an occasion early in the war when Mr. Simonds thought it wise policy that the Tribune advocate an embargo upon shipments to the Allies. There was some discussion and disagreement of views, but the matter was settled amicably. There were other differences. Mr. Simonds questioned the advisability of publishing reports concerning the conduct of our soldiers abroad, and criticized We publication of a Milan dispatch relating to war conditions, which may have been unfounded in fact, and there may have been some more, but they were all of matters upon which honest minds differed and which reasonable men adjust. In the course of the argument counsel said that Mr. Simonds was constantly irritated; that Mr. Garret, one of the associate editors, constantly, so to speak, stuck pins into Mr. Simonds; but it seems to me that another metaphor would have been more appropriate, that Mr. Simonds was the magnet that drew the pins towards him. There is not a scintilla of evidence in the case that warranted the statement; on the contrary, the truth is that the entire managerial and editorial staff, including Mr. Ogden Reid, the editor in chief, and, as I understand, proprietor, or a member of the family that owns the paper, treated him with the utmost courtesy and consideration. They deferred to him, they humored him, and, as aptly said by counsel, they "nursed him." There is nothing in the affidavits disclosing that his judgment did not prevail whenever he asserted himself, subject to the direction of the editor in chief and the assistant editor. There were, of course, disagreements between Mr. Simonds and some of the other members of the large staff of this influential newspaper, but they all arose from an honest expression of views, which, it would seem, Mr. Simonds could not always tolerate without irritation. Mr. Simonds is highly temperamental, an attribute of genius, and much, if hot all, of the trouble arose from his temperamental indulgences. But this condition furnishes no valid excuse for his rash act, for, when the Tribune engaged him, it hired him for his editorial qualities minus his temperamental tendencies, which he should have repressed. However, the staff, generally appreciated his ability as a war observer and writer, and from time to time smoothed matters over, so that it may be said that past differences had very slight, or no, bearing upon the causes that provoked him to quit. This brings us to what I have called the acute stage.
It seems an editorial had been prepared in which the coal situation was discussed in connection with the closing of breweries and moving picture houses. This was submitted to Mr. Simonds, who suggested that the subjects should not be combined, and that the importance of the coal situation demanded a separate discussion, and that it should not be subordinate to the less important subject of closing breweries and moving picture houses, and he asked Mr. Garret to write another in its place. There was no attempt made whatever to control Mr. Simonds' judgment. It was deferred to, and the article was not published. The next day Mr. Rogers and Mr. Garret stepped into Mr. Simonds' room to further discuss the matter with him. Mr. Simonds requested Mr. Garret to leave, and reproached Mr. Rogers for treating him as a servant and humiliating him in the presence of Mr. Garret, and announced that he was through and that he was going to quit. His grievance was purely fancied, and his resolution was unjust. Mr. Rogers considerately asked him to reserve final action until they could talk it over later, which he promised to do. Then quickly followed the second incident, which Mr. Simonds now says determined him in leaving. During the day an editorial had been written commenting on the Colgate soap litigation, which was to be the leader in the next day's issue. In the course of the afternoon word came of the death of Congressman Gardner, and one was written paying him tribute, which Mr. Simonds directed should be the leading editorial. In the next morning's issue the Colgate editorial had first place. The written resignation immediately followed. Now, it is clearly proved that there was no intention upon the part of any one to disobey Mr. Simonds' directions. In fact, the effort was to comply with his orders. The transposition of the editorials was clearly due to a misunderstanding of orders, but Mr. Simonds did not stop to inquire, and without more he sent in his resignation. No sensible man would saythat these trivial circumstances, as they have been disclosed by the affidavits, justified Mr. Simonds in severing his connection. He was oversensitive, and he possibly fancied that he was being overridden by some one else, but a sensible man would have inquired and investigated and put the blame where it belonged; he would not have thought himself injured to the point of resigning. Had he inquired, he would readily have discovered that the transposition of the editorials was the result of a misunderstanding, and not of disobedience of his orders.
I find that the rupture was not brought about by the employer, and that the servant was not justified in quitting his service.
Now, as to the remedy: Counsel has advanced several reasons why this court should not interfere.
The first is that the complainant has not offered to reinstate Mr. Simonds, and that without this, and to restrain him in the language of the covenant, would be against public policy. To be more precise, to restrain him would be to deprive him of making a living and the public at large of the benefits and advantages of his talents, to the injury of the public. It may be that this rule of public policy would prevail if it affirmatively appeared that the Tribune refused to restore Mr. Simonds to his position. I doubt very much that equity would extend its aid if in doing so the result would be that Mr. Simonds would be prevented from following his vocation, and I say here that, if an injunction goes against him, and he offers in good faith to return, and the Tribune declines to receive him, the injunction will be forthwith dissolved. But I know of no rule of law that called upon the complainant to invite Mr. Simonds to return to his labors before seeking the aid of the court to restrain him from breaching his contract, nor of any rule of pleading that requires an assertion of such an offer before equity will intervene. The maxim that "He who seeks equity must do equity" is not applicable as a matter of pleading. In circumstances like the present, where the servant left his employment without cause, it is his duty to return without invitation, and the presumption is that upon an application of this kind the complainant intends to fulfill its part of the contract. However this may be, when the point was raised in the course of the argument, leave was given to amend the bill by inserting a formal invitation to Mr. Simonds to return to his employment, and thereupon, when asked of counsel whether he would avail himself of it, there came an equivocal answer. So that point is out of the case.
A second reason argued for withholding relief is that the complainant has suffered no irreparable injury. When the Tribune engaged Mr. Simonds in 1915, he had already an enviable reputation as an editorial writer, and especially upon topics concerning the present world war. To more intimately familiarize himself with conditions and to enable him to write with a keener knowledge of affairs, the Tribune sent him to the seat of war, at an expense of $6,000, and in all has spent some $35,000 in exploiting him, so that to-day he occupies a unique position among war observers, and is one of the foremost and interesting writers upon that subject. His great capacity lies in his simplicity of description. He paints his word pictures so plainly that the ordinary reader may visualize the movements of the armies, and the entire local situation, and his broad and intimate knowledge of the subject insures confidence. In these respects his position among writers is unique. It seems to me it cannot be denied that by the loss of his talents, which were developed by the Tribune, and by the loss to it of his reputation, which that paper advanced at great outlay of money, serious damage has resulted. The Tribune has retained another famous war observer of international reputation, a Mr. Beloc, to fill the position Mr. Simonds occupied, but this is no answer to the charge that it has suffered irreparable injury by the loss of Mr. Simonds' services. Nor is the demonstration that the Tribune's circulation did not decrease, nor the Herald's circulation increase, after he changed his operations from the one to the other, proof that the complainant has not suffered loss. That is not at all a fair test. The test is: How much greater would the Tribune's income have been had Mr. Simonds remained with it? Upon the conclusion that I have readied that Mr. Simonds breached his covenant, the complainant could undoubtedly recover a judgment at law for a money damage, but what would that money damage be? How could it be established? How could it be ascertained, with any fair degree of certainty? For such an injury the legal machinery furnishes no adequate means of measuring the damage, and in such an event equity steps in to prevent the damage from becoming irreparable. This case presents a situation entirely different from the ordinary breach of a contract, where the injured party may go into the open market and supply his wants, and where the difference in cost measures the damage. Here the services engaged were of a peculiar character, and for the loss of which the damages are un-measurable at law, and hence the preventive remedy.
I am asked further not to grant an injunction, because of what is called the balancing of the inconveniences on a motion pendente lite. I may say it is only upon a motion of this kind that that doctrine is applied. Upon final hearing equity courts enjoin according to the right of the parties regardless of the inconveniences. Now, as we have seen, the Tribune is entitled under its contract to the services of Mr. Simonds andthe profits it would have enjoyed had he remained in its service. In the protection of these rights the Tribune is entitled to the aid of this court in so far as this court can afford protection. It, of course, cannot compel Mr. Simonds to labor for his employer, but it can restrain him from giving the benefit and advantage of his services, and the resulting profits, to another. Then, if the equities are with the complainant, why should this protection be withheld to the advantage of the transgressors? Because to enjoin Mr. Simonds would deprive him of greater income than he received from the Tribune, or because to do so would prevent the McClure Syndicate from reaping large profits from the labors of Mr. Simonds, which otherwise would belong to the Tribune? Certainly not. Mr. Simonds' circumstance is due to his ill-advised course, and the McClure Syndicate is not an innocent victim of the situation in which it now finds itself. It is true that since February, when Mr. Simonds agreed to write for the Syndicate, it has gradually increased its circulation, until its income now is at the rate of $50,000 a year, but this apparently affluent condition was attained at the expense of the Tribune, and doubtless with full knowledge of the rights of the complainant; for it appears in the contract entered into between Mr. Simonds and the Syndicate it was stipulated:
"It is mutually agreed that in the event that any court of competent jurisdiction shall at any time during the period of the contract herein lawfully restrain the writer from writing, or the Syndicate from publishing the writings that are the subject of this contract, then and in that event, and during the period of the lawful obedience of either or both parties hereto to the said court's lawful orders, no action shall lie by either of the parties hereto against the other, and no claim of duty or damage be made by either party against the other by reason of either due and lawful observance of the said court's orders."
By that stipulation it would seem that Mr. Simonds and the McClure Syndicate knew or suspected the insecure footing of Mr. Simonds and contemplated or anticipated the present litigation. Now, as I have said, the only loss that Mr. Simonds can sustain is the increased compensation, and that of the McClure Syndicate its profits, and all derived through Mr. Simonds' illegal conduct and at the expense of the complainant. It does not appear that the Syndicate bound itself to furnish to its subscribers, for any fixed time, Mr. Simonds' articles, and that an injunction would entail further damage for breach of such contracts. But, even if this were so, I do not see how the injury to Mr. Simonds and the Syndicate, which they brought upon themselves, could equitably countervail the damages sustained by the complainant, or which will result to it, if relief be denied. In fact, I cannot see how the interest of the Syndicate can at all be, or should be, considered upon this motion. At any rate, the inconveniences do not counterbalance those of the complainant, and a restraint cannot be denied on this score.
Lastly, the court is called upon to exercise its discretion in the interest of patriotism, because, as counsel said:
"The loss to the world of Mr. Simonds' articles would be equal to that of the Huns entering Paris."
This is rather extravagant, but I accept it as an expression of counsel's appraisement of Mr. Simonds' ability. If there were no other means of disseminating the views of Mr. Simonds among the people of the United States concerning the present war situation than the McClure Syndicate, and a restraint upon its distribution would affect the interest of the American propaganda, there would be much force in the argument. If the McClure Syndicate were the only one in this country that could reach the 5,000,000 to 15,000,000 readers, as counsel states it does, the court would long hesitate before acting; for the court fully recognizes its duty and the obligation of the individual, in a crisis like the present, to submit to the public good; but the medium of the New York Tribune is just as efficient in disseminating such news. It had subscribers to its syndicated articles to the number of 200, and it stands ready to distribute as broadcast as any other syndicate the contributions of Mr. Simonds to the welfare of the people, and to aid the United States in the winning of the war.
If I should deny an injunction, the medium of dissemination would be the McClure Syndicate; if I grant it, I simply change the medium; and if the world loses the talents of Mr. Simonds and his genius and his efforts, the sin of omission will be upon his shoulders, and not upon those of the complainant.
I will grant an injunction in the language of the covenant, "that the said Frank H. Simonds be and he is hereby restrained from writing for or contributing to any other publication other than the New York Tribune," etc.
The motion to restrain the New York Herald will be denied.