146 Minn. 279 | Minn. | 1920
In 1913 George Kissam & Company had a lease of the advertising space in all cars of the Twin City Eapid Transit Company. Its business was to retail this space to advertisers. In November, 1913, the Kissam Company entered into an advertising contract with defendant. The contract is not in the record, but it appears that the Kissam Company agreed to place defendant’s advertisement in certain of the cars of the Twin City Eapid Transit Company for five years from January 1, 1914, and that defendant agreed to pay therefor the sum of $85 per month. In January, 1916, defendant notified the Kissam Company that he would “discontinue” the advertising on February 1 following, and from that date on no advertising matter was furnished by defendant and no payments made. Plaintiff claims to have succeeded to the rights of the Kissam Company and it sued to recover the unpaid instalments of the contract. The court directed a verdict for plaintiff. Defendant appeals.
This contract is much like a contract of employment and it is governed by similar principles. McDermott v. De Meridor Co. 80 N. J. Law, 67, 76 Atl. 331. If the Kissam Company continued, during the period of the contract, ready and willing to perform, then the measure of damages is prima facie the contract price, less the cost of furnishing the service. Stumpf v. Merz, 50 Misc. 543, 99 N. Y. Supp. 337; Ware Bros. Co. v. Cortland, C. & C. Co. 192 N. Y. 439, 85 N. E. 666, 22 L.R.A.(N.S.) 272, 127 Am. St. 914.
In this case, the testimony is that it would have cost nothing to complete the contract, that the expenses of operation of plaintiff’s business would be the same whether this advertising space were used or not.
It may be doubted whether the offered evidence possessed sufficient definiteness to give it value. But, passing that point, we are of the opinion that the evidence was properly rejected.
Had defendant’s contract called for particular space and had a tangible offer been made by another advertiser to take it, a different question would be presented. See Ware Bros. Co. v. Cortland C. & C. Co. 210 N. Y. 122, 103 N. E. 890. Had an offer even been made to take qver defendant’s contract, a different question would be presented. But a simple offer to plaintiff to take that quantity of its unused space at a cut rate, we think falls short of the proof required to mitigate plaintiff’s damages. We must bear in mind that defendant comes into the case, not in the Tole of an injured party, but in the role of one who has injured plaintiff by a confessed breach of contract, and, while plaintiff must nevertheless use such effort as it reasonably may to reduce the damages arising from defendant’s wrong, we think plaintiff could not reasonably be asked to cut its rates for unsold space, with incidental disturbance of its business, in order to save defendant from the loss resulting from his own breach of contract.
The object in allowing a recovery of damages in such a case as this is to save plaintiff from the loss resulting from the wrongful termination
Order affirmed.