181 Misc. 91 | N.Y. Sup. Ct. | 1943
The action is for unpaid installments for services as agent of the defendant in displaying and distributing printed matter (which the defendant agreed to furnish for the purpose) in the offices of the plaintiff in specified areas, for the two-year period ending March 1,1943.
The contract of the defendant expressly provided: “ We (Tauck Tours, Inc.) request and you (the plaintiff) are hereby authorized to represent Tauck Tours, Inc., displaying and distributing our (Tauck Tours, Inc.) printed matter * * * .”
The business of the defendant was the conducting of sightseeing tours, the defendant using exclusively chartered gasoline-fueled, mechanically propelled, rubber-tired buses for the transportation of groups of persons for sightseeing, the price of the tour being in each instance all inclusive of hotel accommodations, food, sightseeing trips and railroad fare to and from the points of origin of the bus tour.
Where performance of the agency contract was still theoretically possible after September 10, 1942, although the expected value of the performance was destroyed, the contract did not become void ab initia, but the parties were excused from further performance. The contract was enforcible with respect to rights accrued up to the time that fulfillment of the object of the contract became legally impossible. After September 10, 1942, there was a total failure of consideration for the contract. ‘ ‘ By act of government there was complete frustration of performance excusing the seller [in the instant case, the principal, the defendant] from performance as matter of law.” (Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467, 472.)
Judgment is directed for the plaintiff against the defendant for the pro rata sum due for the unpaid installments to September, 1942, i.e., seven months at $83.33 per month amounting to $583.31, less á credit of $166.67, with interest on the unpaid installments from the respective due dates thereof, or a total of $416.64, with interest.