Appeal by defendant from the Circuit Court of Kane county; the
Hon. CHARLES A. O'CONNOR, Judge, presiding. Heard in this court
at the October term, 1950. Judgment affirmed. Opinion filed April
19, 1951. Released for publication May 8, 1951.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
The circuit court of Kane County, in a trial without a jury, entered judgment in favor of plaintiff, Ben Sampson, trading as Mid-Continent Press, in the amount of $4,656 for the alleged breach of a printing contract by defendant, Arthur Marra, trading as Marra Program and Past Performance Form, from which judgment defendant has appealed. The essential issue is whether the judgment of the trial court is against the weight of the evidence.
It appears that plaintiff operated a small print shop wherein the planograph method of printing was used. On March 17, 1949, plaintiff wrote a letter to Edwin Dygert, general manager and vice-president of the Fox Valley Trotting Club, confirming a telephone conversation in which plaintiff offered to print the programs for Aurora Downs during the harness racing season. Dygert agreed to refer plaintiff's offer to defendant, Arthur Marra, who was handling the programs for the Racing Meet at the track, and, after negotiations, a contract was signed by plaintiff, Ben Sampson, and defendant, Arthur Marra, on April 28, 1949. The contract provided:
"It is agreed that Mid-Continent Press will furnish programs; that Marra Past Performance Form will accept and pay for the programs for the spring racing meet of 1949. Prices will be as follows: The minimum to be furnished and accepted will be 2,500 programs for each day, and for 9 race programs: 2,500 @ 8 1/2¢ each; 3,500 to 4,500 @ 8¢ each, and over 4,500 @ 7 1/2¢ each.
"1. All scratches will be called in between 9 and 9:15 A.M. each day of the races.
"2. Copy of the program will be furnished by 1 P.M. two days before.
"3. Programs will be available for newsstand sales by 2 P.M. the day before the race.
"4. Proofs will be furnished to the track by 5:30 P.M. the day before the race.
"5. Payment for the programs will be made each week for programs printed the previous week.
"6. All copy is the property of Marra.
"Signed: Arthur Marra W.B. Sampson"
Under the printing process used by plaintiff, a typing machine prepares an image which is photographed, and the negative is used to make a metal plate that is wrapped around a cylinder on an off-set press, where the plates are inked, and the copy printed. Prior to the contract being signed, plaintiff showed defendant various styles of type on silver proofs, or photographs of the typewritten copy. Defendant insists that plaintiff assured him that the final programs would be darker, after the inking and printing, than the silver proofs. Defendant and Dygert selected a particular style of type, other than the one recommended by plaintiff, which style was later adopted. At the time of the negotiations defendant showed plaintiff a program from an Arizona Race Meet, and plaintiff stated that he could make a program just as good, although the parties knew that the Arizona program was printed by the letter press method, and that plaintiff used the off-set or planograph method. It is undisputed that plaintiff's price was lower than that demanded for letter press printing.
The evidence is controverted as to whether plaintiff purchased new equipment, including a stitching machine, a whirler, a vacuum frame, and a stapler pursuant to the contract or prior thereto; however, it was established that plaintiff did subcontract part of the set-up work to a Chicago firm which photographed the copy and sent him the negatives from which he made the plates, and that plaintiff enlarged the personnel of his shop from 2 to 8 employees.
No printed proof or printed sample was furnished to defendant until the first night of the races, on May 9, 1949. Defendant states that not only were the programs illegible under the lights, but letters and figures were broken and blurred, numbers were up-side down, there were interlineations, some pages were not cut, margins were short, stapling was ...