Appeal by plaintiff from the Circuit Court of Stephenson
county; the Hon. HARRY E. WHEAT, Judge, presiding. Heard in this
court at the October term, 1951. Judgment affirmed. Opinion filed
January 8, 1952. Released for publication January 28, 1952.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION THE COURT.
Appellant, Freeport Journal-Standard Publishing Company, filed a complaint in the circuit court of Stephenson county against appellee, Frederic W. Ziv Company, requesting that its rights and obligations under a certain radio transcription lease be declared. By its complaint it alleged that it was a corporation organized and existing under the laws of the State of Illinois and that the appellee was an Ohio corporation licensed to do business in Illinois; that it (appellant) owned and operated a radio broadcasting station under the call letters of WFJS; that sometime prior to October 14, 1948, at Freeport, Illinois, one Paul E. Sammon affixed his signature to a certain radio transcription lease, a copy of which was made a part of the complaint, and thereafter appellee executed said lease; that appellee never sent to it, or in any other manner placed in its possession sufficient transcriptions to commence the programs described in said transcription lease; that prior to the commencement of this action appellee demanded that appellant carry out the terms of said lease; that appellant has advised appellee that it denies any interest in or liability under said lease and that an actual controversy has arisen between appellant and appellee as to whether or not appellant is, in any manner, legally obligated to perform said lease. The appellant prayed that the court declare that the said radio transcription lease neither imposed any obligations upon appellant nor gave it any rights thereunder.
By its answer, as amended, defendant admitted the lease and averred that appellant was the owner and operator of Radio Station WFJS; that WFJS is not a separate corporate entity but is the name under which appellant operates its radio broadcasting business; that said Paul E. Sammon was the commercial manager of WFJS and was authorized and empowered to sign the lease in question on behalf of appellant; that he did sign said lease and that said lease is a corporate instrument of appellant and that said Paul E. Sammon was its duly authorized agent and was duly authorized to execute said lease on its behalf.
Appellee also filed a counterclaim alleging the execution of the transcription lease by appellant through its duly authorized agent, Paul E. Sammon and averred that appellant had breached said agreement and had refused to perform any of its obligations and, therefore, appellee demanded judgment against appellant for $7,800 for its refusal to comply with said lease.
The radio transcription lease out of which this controversy arises, so far as relevant to the issues presented by the pleadings, is as follows:
"RADIO TRANSCRIPTION LEASE
"This lease, made this fourteenth day of October, 1948, by and between Frederic W. Ziv Company, hereinafter referred to as the lessor, and Radio Station WFJS, 217 West Exchange St. Freeport, Ill. hereinafter referred to as the lessee, witnesses:
"That the lessor has hereby leased to the lessee, for broadcasting for such purposes only, the electrical transcriptions hereinafter designated:
260 Freddy Martin Programs (5 per week) 1/4 hr 260 Boston Blackie Programs (5 per week) 1/2 hr 104 Lightning Jim Programs (2 per week) 1/2 hr 52 Guy Lombardo Programs (1 per week) 1/2 hr 260 Old Corral Programs (5 per week) 1/4 hr 260 One for the Book Programs (5 per week) 5 min 260 Calling All Girls (5 per week) 1/4 hr 52 Parents Magazine (1 per week) 1/4 hr
"That . . . the aforesaid electrical transcriptions shall be broadcast each week beginning January 2, 1949.
"That none of said electrical transcriptions shall be broadcast by or on behalf of the lessee more than once or over more than one broadcasting station.
"That the lessee hereby agrees to pay to the lessor for all of said electrical transcriptions the sum of $150 per week for the number of electrical transcriptions contracted to be used in that month during the term of this lease.
"If the lessee be at any time in default in the payment hereunder, the lessor shall be wholly relieved from providing transcriptions hereunder, and lessor may at its option declare the total unpaid rental for the remainder of the term of this contract immediately due and payable, and damages for ...