Senter v. Davis

Sanderson, J., delivered the opinion of the Court: The complaint seems to have been framed with a view to alternate relief—specific performance, if by the rules of equity the plaintiff is entitled thereto, and if not, damages at law for a breach of the contract. The Court below was of the opinion that the plaintiff was entitled to specific performance, and rendered judgment accordingly. The case comes here upon the judgment roll, without testimony or findings of fact, and the only point made by the defendant is, that the case made by the complaint does not entitle the plaintiffs to the relief which he has obtained.

The plaintiff is a newspaper carrier, and he alleges that it is a general custom in the newspaper trade for the publishers and proprietors of a newspaper to sell -what is called “routes” —that is to say, the exclusive privilege of furnishing or delivering the paper to all of its subscribers residing within a certain designated district; that the carrier receives the paper at the counter of the publishers at an agreed price, and delivers them to the subscribers at a higher price, which is also fixed by the proprietors of the paper, which is denominated the subscription price; that by the custom aforesaid, such routes are regarded as the separate and exclusive property of the carriers, subject to sale and transfer by the carriers, at their pleasure, provided the route is well cared for, and the transfer is not made to a person ivho is objectionable to the proprietors of the paper; that, some twelve years ago, a newspaper called the Daily Bee was established, and is still published in the City of Sacramento; that in accordance with said custom, the proprietors divided the. city into convenient routes, and sold them to the then , newspaper carriers-[453]of said city; that among said routes was one known as the “ J street route,” which, some time prior to the 18th of April, 1867, had come into the ownership and possession of the defendant; and that on that day the plaintiff contracted with the defendant for the purchase of said J street route, and the defendant agreed to sell it for the sum of $1,500; that he was let into possession under this contract, and was to have a bill of sale of the route upon the payment of the purchase money, according to the terms of the contract.

The complaint then proceeds to detail the terms of the agreement, and some changes made by consent as to time of performance on the part of the plaintiff, alleging a part performance, and an offer to perform the rest, with the breach on the part of the defendant, none of which facts, however, are material to the present purpose. Than what has been stated, nothing more is said which illustrates or tends to illustrate the question whether damages at law would not prove, in all respects, full compensation for the wrong alleged to have been committed by the defendant in turning the plaintiff out of the J street route, and refusing to give him a bill of sale, according to the terms of the contract.