#### Goodland, Respondent, vs. Le Clair, Appellant.

*Novembers 8*

November *25, 1890*

*(1) Newspapers: Liability of person receiving. ($) Impaneling jury. (S) Depositions: Objections, when to be made. Of) Contract to publish advertisement: Statute of frauds. (6, a) Special verdict: Form of questions.*

1. Evidence that a newspaper was mailed by tlie publisher, addressed to the theater of which the defendant was the proprietor, and was received there for one year and never refused or returned, is sufficient to show the defendant’s liability for the subscription price.

*2.*The court having directed the regular panel to be called to obtain a jury, one of the jurors, having gone away, failed to answer to the call, but was afterwards telephoned to be present and was placed on the jury. *ELeld,*not error.

3. Under sec. 4091, R. S., an objection to the admission of a deposition on the ground that the oral interrogatories were put by the commissioner who took it, must be made before the trial is begun.

4. *A*contract for the publication of an advertisement in a newspaper is not one for the sale of goods, chattels, or things in action, within the meaning of the statute of frauds (sec. 2308, R. S.).

5. Where the questions submitted for a special verdict are sufficient to dispose of all the material controverted issues, the refusal to submit other questions is not error.

6. A question submitted for a special verdict, “ Did the defendant or his authorized agent ever make the alleged agreement? ”— is not objectionable because in the alternative.

APPEAL from the Circuit Court for *Ashland*County.

Action to recover the sum of $68 alleged to be due to the plaintiff for publication of an advertisement in his newspaper and for one year’s subscription to the paper. The facts will sufficiently appear from the opinion. There was a special verdict finding the facts in favor of the plaintiff, and from the judgment entered thereon accordingly the defendant appealed.

Eor the appellant there was a brief by *Gola <&*O’Keefe, *177attorneys, and *MoGloud c& Me OuTly,*of counsel, and oral argument by *ítublee A. dole.*

Eor tbe respondent tbe cause was submitted on tbe brief of *John G-oodland.*

Obtou, J.

Tbe plaintiff was tbe publisher of a newspaper called tbe “ Ironwood Times.” He alleges that tbe defendant subscribed for one copy of said paper for one year, to 'be sent to bim by mail, at tbe price of $2, and that be inserted and published in said newspaper certain advertisements, at tbe special instance and request of tbe said defendant, at tbe agreed price of $66, and that it was reasonably worth that amount. Tbe answer is a general denial.

Tbe error assigned by tbe appellant for tbe refusal of tbe court to direct a verdict for tbe defendant involves the merits of tbe case. Tbe testimony for tbe plaintiff tended to prove that tbe newspaper was mailed, addressed to tbe theater at Hurley of which tbe defendant was tbe proprietor, and received there for one year, and was never refused or returned. That is sufficient for tbe $2 charge, but it was also proved by book account. It also tended to prove that tbe agent of tbe plaintiff was directed by tbe defendant to consult bis manager and agent as to tbe matter of the advertisements to be published in said paper, and be did so, and contracted with said agent on behalf of tbe parties for tbe publication of the same and at tbe price named, and that said advertisements were duly published, in accordance with said contract, by tbe plaintiff, and a bill therefor was rendered to the agent of tbe defendant, and demand made for payment. This testimony was sufficient to entitle tbe plaintiff to recover bis whole bill, and it was therefore no error to refuse to direct a verdict for tbe defendant.

Some of tbe other exceptions will be disposed of in their order.

1. Tbe court having directed tbe regular jury panel to be *178called to obtain a jury to sit in the case, one of them, having gone away and therefore failing to answer to the call, was afterwards telephoned to he present and was placed on the jury. The learned counsel of the appellant not having given any reason why this was improper, we are unable to find any.

2. The deposition of the witness Henning was. received against the objection of the learned counsel of the appellant that all of the oral interrogatories were put by the commissioner who took it. The statute (sec. 4091, R. S.) provides that “ all objections to the validity or admissibility of any deposition shall be made before the trial is begun.” This objection was made after the trial had commenced, and was therefore too late. The testimony in this deposition, and in "the deposition of the witness Hill, relating to the contract for the publication of said advertisements, was objected to because it tended to establish a contract void by the statute of frauds: (1) This is not a contract for the sale of goods, chattels, or things in action. (2) This contract was fuily executed and performed by the plaintiff. Sec. 2308, R. S.; *Meincke v. Falk,*55 Wis. 427; *McClellan v. Sanford,*26 Wis. 595. The statute does not apply to such a contract. There are several other objections to different parts of the depositions, but they are technical, rather than substantial, and without merit.

3. The learned counsel of the appellant requested the court to submit to the jury, for a special verdict, certain fourteen questions, and the court refused. Most of these questions relate to the testimony rather than to issuable facts. The court submitted six questions only, and they were sufficient to dispose of all of the material issues in the case, and some of them were not necessary,— such as-whether the claim had ever been paid, and whether the defendant, his servants or agents, ever notified the plaintiff to- quit advertising or delivering the paper. There were no *179such, issues in tbe case. Was the contract made as alleged? Did the plaintiff perform it by publishing the advertisements as alleged? What was the price agreed upon, or what was the value of the advertising and subscription? Those were all the questions necessary, and they were substantially embraced in those submitted by the court. *Ward v.*Busack, 46 Wis. 407*; Eberhardt v. Sanger,*51 Wis. 72.

4. Exception is taken to the fifth question because it is in the alternative,— “ Did the defendant or his authorized agent ever make the alleged agreement?” etc. This was equivalent to asking: “ Did the defendant make the agreement either personally or by his agent ? ” The answer that he did make it either way would find the issue, and that is sufficient. Whether he did it personally or by his. agent would be finding the testimony. It might have been proper to have asked whether the agent was duly authorized to make the contract, if it had not been proved that the defendant directed the agent of the plaintiff to make it with his agent.

5. Many exceptions are taken to the instructions of the court, but they are more like captious criticisms than exceptions. The instructions are very clear, and we think proper. This case is short and very plain, and the testimony is brief and to the point, and the plaintiff’s case was fully proved. We have disposed of all the exceptions that appear to be meritorious. We can find no error that ought to cause a reversal of the judgment.

*By the*Oourt.— The judgment of the circuit court is affirmed.