128 N.Y.S. 680 | N.Y. Sup. Ct. | 1911
The defendant herein demurs to the complaint on the ground that it fails to set forth sufficient facts to constitute .a cause of action. The complaint sets forth substantially that on or about the 18th day of March, 1897, the plaintiff, a manufacturing corporation, entered into an advertising contract with one Williams, .publisher of the Iron Age, whose obligations were subsequently assumed by the defendant corporation, a copy of which contract is annexed to the complaint and is in the following form: “ David Williams, Pub., New York; Henry Smith, Mgr., Cincinnati. Yon are authorized to insert our 'advertisement in the Iron Age for one year from date and thereafter until otherwise instructed, for which we agree to pay $360'. 6 3, reserv
The defendant, in support of its demurrer, contends that the alleged contract lacks mutuality, and is merely an authorization or a continuing offer which could not he enforced hy defendant and is not, therefore, enforcihle in equity against the defendant.
In my judgment this contention is not well founded. The document was executed in duplicate,' one of said duplicates being retained by each of the parties, and subsequently there was part performance on the one hand and payment on the other. It imposed obligations upon both of the parties thereto, the obligation on the part of the publisher to print plaintiff’s advertisement for one year “ -and -thereafter ” until discontinued hy plaintiff, and the obligation on the part of the plaintiff, enforcihle by defendant, to pay the agreed price for such advertising so long as the publisher continued to print the same, until discontinued by the plaintiff.
’Defendant further contends that, even if the document in question constituted a binding contract, it was a contract for personal services which will not be specifically enforced by a court of equity. In support of this contention the defendant cites Ware Bros. Co. v. Cortland C. & C. Co., 192 N. Y. 443. The case cited, however, merely declares the rule that, for the purpose of an action at law to recover damages for the breach of such a contract, a contract for advertising is analogous to or to he treated as a contract for personal services so far as the measure of damage is concerned. I do not think, however, that the learned court intended to lay down the rule that a contract for advertising shall he deemed to he such a contract for personal services, involving confidence and trust, the delegation of authority or the necessity for the maintenance of amicable relations, as a court of equity will ordinarily refuse to enforce. The mere fact that the defendant herein is a corporation would seem to render such a view of the contract in question impossible. But, even if the decision were to be so construed, I am of the ■opinion that the service which the publisher in this instance
For the reasons above stated the demurrer is overruled, the defendant to have twenty days within which to serve an answer.
Demurrer overruled, defendant to have twenty days to serve an answer.