The complaint sets up a cause of action for services rendered, alleging that plaintiff, at the special instance and request of defendant, inserted advertisements of the agreed price and reasonable value of $1,654.23 in the New York Evening Journal and New York American. To sustain this cause of action as alleged, the plaintiff must prove that it was acting as an independent contractor with the newspapers, and not as the defendant’s agent. If it was acting as defendant’s agent, then to recover the value of the advertising it must show that it paid for these advertisements, and may then recover the amount of such payments in an action for money paid.
At the opening of the trial the defendant moved to dismiss the complaint, because there was “no allegation that the plaintiff paid or was obliged to pay to the newspapers in which the advertisements were inserted.” This motion was denied. Its denial was correct only upon the theory that such allegations were unnecessary, if in fact the defendant performed the services, not as agent of the defendant, but as an independent contractor. At the trial, howevér, it appeared that the plaintiff was merely the agent of the defendant, and that the advertising contract was made with the newspapers in the name of the defendant, and that thereafter the defendant agreed to pay the plaintiff for the insertion after it had paid the papers. The plaintiff then paid for the insertion. At the end of the plaintiff’s case the trial justice directed a verdict. While the plaintiff showed a cause of action, he did not show the cause of action alleged, and the complaint should have been dismissed.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.