Dukane Press, Inc. v. St. Thomas Tramway Corp.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

This matter came on for hearing on July 16, 1969. Plaintiff, in its First Cause of Action sued for (1) the balance owing of $43.82, the over-run amount allegedly due under contract dated January 13, 1967 (Plaintiff’s Exhibit 1) for a two color flyer job. The defendant admittedly received the flyer covered by the contract and paid $783.00, the contract price for 125,000 of the flyers, but denied liability for the over-run of 7,000 flyers; (2) the cost of 100,000 *3863 1/2 x 5 postcards and over-run of 800 covered by contract dated February 1,1967 (Plaintiff’s Exhibit 2) $840.00 for the 100,000 cards and $4.16 for the over-run of 800 cards; (3) $600.00 owing pursuant to contract dated October 11, 1967 (Plaintiff’s Exhibit 3) for a full page advertisement in the St. Thomas Holiday Guide, Winter Edition.

The plaintiff’s Second Cause of Action seeks to recover $500.00 for pictures and layouts for a 9 x 12 folder and a 4 x 9 handbill prepared by plaintiff for defendant’s consideration as a “spec job” to use the characterization of plaintiff’s vice president; or for the return of the postcards and layouts.

The Court, having heard the testimony of the parties, considered the Memorandum of plaintiff’s counsel and the exhibits in evidence, makes the following:

FINDINGS OF FACT

1. That the defendant received and accepted the 132,000 flyers;

2. That the contracts covered over-runs or under-runs not to exceed 10 % of the amounts ordered;

3. That the defendant received, accepted and used the 100,800 postcards;

4. That the defendant accepted the October 11, 1967 contract for the full page advertisement in the St. Thomas Holiday Island Guide, Winter Edition and that said issue was published with said advertisement inserted at Page 69;

5. That plaintiff failed to establish that the pictures and layouts for the folder and handbill for the “spec job” was to be returned if the defendant did- not wish to contract in that respect.

*387CONCLUSIONS OF LAW

1. That plaintiff is entitled to recover the unpaid balances due for the items covered in the above Findings Nos. 1, 3,4.

2. That plaintiff is not entitled to (a) $500.00 or (b) return of the pictures and layouts for the folder and handbill as covered by plaintiff’s Second Cause of Action.

JUDGMENT

It is therefore, ORDERED, ADJUDGED and DECREED that plaintiff have judgment for $43.82; $844.16 and $600.00, or a total money judgment of One thousand Four hundred eighty-seven dollars and Ninety-eight cents ($1,487.98), with costs and attorney’s fee in the sum of $100.00.