Bouchoueva v Novoye Russkove Slovo Puyblishing Co.
Annotate this CaseDecided on September 2, 2004
Civil Court, Kings County
MARINA BOUCHOUEVA, Claimant,
against
NOVOYE RUSSKOVE SLOVO PUBLISHING CO., Defendant.
4608SCK2004
Eileen N. Nadelson, J.
Claimant instituted this small claims action based on the breach of an oral contract.
Claimant was employed by Defendant newspaper for several years as a receptionist prior to the incidents giving rise to this action. Claimant asserted that she has a degree in journalism from the former Soviet Union, and she approached the then owner/editor of the paper and his wife, also an owner who was in charge of the company's accounting department, to write a thematic column on gambling that would entice advertisers in the gaming industry. Claimant testified that the editor and his wife both agreed to pay her the sum of $100 per column. It is noted that the "column" was, in fact, the entire last page of the paper.
It is agreed that Claimant produced 33 thematic pages for Defendant newspaper, but that she received no compensation for that work. Claimant testified that she submitted monthly invoices by placing them on the editor's desk, but could only produce a copy of the first month's invoice and a final invoice mailed to the paper after the column stopped appearing when the editor and his wife sold their controlling interest in the company.
The former owner/editor, who remains working as editor of the paper even though he no longer has a controlling share in the business, testified that he never discussed the column with Claimant and that he never received any of her invoices. The editor maintained that any discussions about the column were between Claimant and his wife. He further stated that it was his understanding that Claimant was not to receive any compensation for such column; the purpose of printing the page was to attract advertisers, and Claimant would receive a percentage of the advertising dollar so attracted.
The editor's wife, who is no longer working at the paper, testified that she never agreed to pay Claimant for the columns. The arrangement, according to this witness, was for Claimant to [*2]receive a percentage of the advertising income generated by her thematic page. The witness further stated that she never received any invoices from Claimant, that Claimant was always paid her receptionist salary on time, and that Claimant never orally asked for any money for the column.
During trial it was adduced that writers for the newspaper are compensated at the rate of between $30 and $100 per page.
The threshold question for the court to decide is whether a valid contract for services existed between the parties.
In order for a contract to come into existence, there must be evidence of the mutual assent of the parties to the terms and conditions of the alleged agreement. Sefton v. Hewitt, 2004 N.Y. Slip Op. 50589(U) (Kings 2004). The manifestation of this assent may be either written or oral. Miller v. Schloss, 218 N.Y. 400, 113 N.E. 337 (1916). .
However, whereas proof of the terms and conditions of a written agreement are easily ascertainable by the writing itself, when it comes to proving the elements of an oral contract the court must look to the credibility of the parties testifying to those terms. Strategic Domain, Inc. V. Medsite, Inc., 304 A.D.2d 368, 758 N.Y.S.2d 297 (1st Dept. 2003). Furthermore, for certain types of contracts and situations in which the parties are found equally credible, proof of the alleged terms must be adduced by evidence other than the parties' testimony.
In situations in which the alleged oral contract purports to modify the terms of a will, the courts have required disinterested witnesses to corroborate the testimony of the parties. Stillwell v. Bateman, 83 Misc. 589, 145 N.Y.S. 321 (Kings 1914). Also, in cases in which the proponent of an alleged contract is seeking specific performance, the courts look for testimony of witnesses sufficiently disinterested to sustain the proponent's burden of establishing the contract terms. Pickett v. Michaels, 120 A.D. 357, 105 N.Y.S. 411 (1st Dept. 1907) (the decision in favor of the proponent was reversed because the defendant denied the terms and the witness proffered by the proponent was not found to be trustworthy in her testimony by the appellate court).
Therefore, whenever a court is required to determine the provisions of an oral agreement, not only is the credibility of the parties a factor, but also the availability of disinterested witnesses who could substantiate the parties' testimony. When both sides are found equally credible, and no substantiating witness is offered, the court can only conclude that no contract came into existence because no meeting of the minds has been conclusively established with respect to the contract's essential terms. See 166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp., 78 N.Y.2d 88, 571 N.Y.S.2d 686 (1991).
Based on the foregoing, the court concludes that no contract existed between the parties with respect to the payment for production of the thematic columns. [*3]
Although not called upon to decide the issue, the court notes that even if a valid oral contract would have been found, that contract would be unenforceable under the Statute of Frauds.
The Statute of Frauds provides that an oral agreement will not be enforced if, by its terms, it is not to be performed within one year from its making. General Obligations Law section 5-701(a)(1). According to the weight of the testimony presented, the alleged agreement between the parties to this action did not mention any event which might cause performance to be completed within one year of the making thereof. Since by its terms it was not to be performed within one year from its making, under settled principles of law this oral contract would be barred by the Statue of Frauds. Sack v. Beasely, 282 A.D. 153, 122 N.Y.S.2d 174 (1st Dept. 1953).
Where, as here, there is a bone fide dispute as to the existence of a contract, the injured party may proceed upon a theory of quantum meruit. Callender v. Fieldman, 252 A.D.2d 468, 676 N.Y.S.2d 152 (1st Dept. 1998). To prevail on such a theory, the party claiming the injury must evidence performance of the services in good faith, acceptance of those services by the party to be charged, an expectation of compensation for those services, and the reasonable value of the services performed. Precision Foundations v. Ives, 4 A.D.3d 589, 772 N.Y.S.2d 116 (3d Dept. 2004).
In the instant action, Claimant has demonstrated that she performed the services in good faith with an expectation of being compensated thereon. Further, there is no dispute that Defendant accepted those services by printing Claimant's column for 33 consecutive weeks. Defendant's witnesses testified that the paper generally paid between thirty and one hundred dollars for each such column, the higher figure being reserved for experienced and well-recognized writers.
Based on the evidence presented at trial, the court concludes that Claimant is entitled to the quantum meruit value of her services, which, because she was apparently a novice at this work, the court believes should be valued at $30 per column, the rate Defendant paid to its new and/or unknown writers.
The court finds for Claimant in the sum of $990.00.
Dated: September 2, 2004.
__________________________
EILEEN N. NADELSON, J.C.C.
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