W. J. Johnston Co. v. Hunt

BARRETT, J.

I dissent upon several grounds: First. The learned Judge at special term should not have dismissed the complaint upon the ground that jurisdiction in equity was not shown, when no such point was taken by counsel. The defendant moved to dismiss upon other grounds, and the learned judge, without passing upon these grounds, dismissed the complaint generally, assigning as a reason that the remedy was at law. Second. The defendant did not insist in his answer, or suggest upon the trial, that an adequate remedy at law existed.' On the contrary, he treated the action throughout as properly an equitable one, and even demanded in his answer equitable rplief as against the plaintiff. Third. Upon the case made by the pleadings and proofs, the contract was for the performance of personal services requiring special aptitude, skill, and experience, for the breach of which an action at law would not have afforded the plaintiff an adequate remedy. The plaintiff’s revenue comes almost entirely from advertising. Hunt was an advertising solicitor, and he controlled this advertising, to a large extent, personally. This was because a large proportion of such advertising was obtained through his personal solicitation. He had been in the employ of Mr. Johnston, or of the plaintiff, for several years, and he grew up, so to speak, with the journals which they published. The business was built up with Mr. Johnston’s of the plaintiff’s money, which was expended for Hunt’s salary,, and for his traveling expenses when engaged in the business of soliciting advertisements. When Hunt notified Johnston that he was about to leave, he said that it was principally owing to his services that the business was what it was, and that at least a portion of the business ought to belong to him. He at least must then have felt that his services were “special, unique, and extraordinary,” for he shamelessly demanded $10,000, and declared that, if it was not paid, he would break his contract, connect himself with another journal, and take away half of the plaintiff’s advertising business. In his answer* Hunt did not deny-the allegation of the complaint that—

“By reason of his long connection with the plaintiff’s said newspaper, he had become thoroughly familiar and well acquainted with the method of carrying on the plaintiff’s business, and especially with the methods of carrying on its advertising business, and the methods of soliciting or securing such advertisements, and with the customers or patrons of the said plaintiff. ”

*318Nor did he deny that the knowledge which he possesses on the subject of this special advertising was acquired while in the employ of Mr. Johnston, or the plaintiff. In the same way he admits that his large and extensive acquaintance with advertisers was formed by means of money furnished to him by Johnston, or the plaintiff, to enable him to secure for their benefit a business standing with persons, firms, and corporations who- needed to úse the journal in question as an advertising medium. His conduct in securing an advance of $4,000 in cash, as an inducement to execute the new agreement under consideration, and in subsequently demanding $10,000 more as an inducement to be honest in fulfilling it, is properly characterized by Mr. Justice O’BRIEN. That, at least, was certainly unique and extraordinary conduct; and it was based upon the undoubted fact that his -services were essential to the plaintiff, and that no substitute could readily be obtained. I think the facts of this case bring it fully within the principle enunciated in Lithographing Co. v. Crane, (Sup.) 12 N. Y. Supp. 898, which Mr. Justice O’BRIEN quotes, and the authorities there referred to; and that the judgment should be reversed, and a new trial ordered.