135 N.Y.S. 577 | N.Y. App. Term. | 1912
Lead Opinion
This action is brought upon a contract for advertising. The defendant made the following offer:
“ This order not subject to cancellation.
“Ho payments will be made to agents except upon written authority.
“Verbal understanding or agreements will not be recognized.
“ Imperial Curtain Company,
“ Columbia Theatre Building, 47th St. and Broadway:
“Dear Sirs,.— Kindly place our advertisement 15x21 inches on the street drop of the Fifth Ave. Thea. city of Brooklyn, H. Y., state of H. Y., for such time the theatre is open from August 1st to July 31st of the years 1910-11, 1911-1912 and 1912-13; for which we. agree to pay Two Dollars, $2,00 per week .from the day- it is placed, payable every four weeks-, and $2.50 for painting. Credit is to be given for each entire week advertisement is not shown. ‘ Design our copy ’ if not furnished by us in time.
“ Very truly yours, signed
“"signed Firm name DEL Strauss
“ By H. H. Loeb, Address 374— 5th Ave. •
'March 22, 1911.”
“ Mar. 24, 1911.
“ H. Stbauss,
“ 3.74 — 5th Ave.,
“ Brooklyn, IST. Y.:
“Dear Sir.— We are in receipt of your order obtained by our Mr. Herman Loeb, to place your advertisement 15x21 inches on the street drop of the 5th Ave. Theatre, Brooklyn, M. Y. for such time as the theatre is open from August 1st to July 31st of the years 1910-11; 1911-12 and 1912-13 at $2.00 per week. We enclose herewith duplicate of your contract.
“ We are pleased to accept it and thank you for same. We hope you will find it of great benefit.
“ Yours very truly,
“ Imperial Curtain Company “ Per E. M. R.”
The offer and acceptance constituted a binding contract between the parties. Upon the trial it was proved that the plaintiff displayed the advertisement upon the theatre curtain, according to the terms of the contract, until January 13, 1912, and that the theatre was open during this period. On December 14, 1911, the defendant wrote the plaintiff, asking that the plaintiff should discontinue displaying the advertisement. The plaintiff brought this action to recover for the time the advertisement was shown, at two dollars per week; namely, eighty-six dollars and fifty cents, less sixteen dollars and fifty cents, which the defendant had paid. The court below gave judgment in favor of the plaintiff for the sum of sixty-two dollars, being the amount due up to December 14, 1911, less, the amount paid by defendant. Plaintiff appeals, claiming that the judgment should have been rendered in its favor for the entire amount claimed. Upon the trial, the right of the defendant to claim that the plaintiff, after notice to discontinue, should have attempted to fill the space contracted for by defendant, with a view to reducing defendant’s damages, was expressly waived. So
The judgment should, therefore, be modified by increasing the amount of the recovery to the sum of seventy dol-
Page, J., concurs.
Dissenting Opinion
The plaintiff accepted in writing the defendant’s order to place his advertisement upon a theatre curtain for a definite period. It now seeks to hold the.defendant liable for the amount he agreed to pay during the whole term in spite of'the fact that thereafter the defendant cancelled his order. There is no question but that the plaintiff is entitled to payment of the contract price for the period it performed; the sole question involved in this appeal is whether it can enforce payment as provided in the order after the order was cancelled. The order expressly provides that it is not subject to cancellation but one party cannot bind another party to the performance of a contract which is not mutual in its terms and the case therefore resolves itself into the question of whether or not this contract was mutual. The defendant under the terms_ of the order agreed to pay for the placing of- his advertisement the sum of two dollars per week for a definite period and the acceptance of his order for such time as the theatre is open would ordinarily imply, an agreement by the plaintiff to place the advertisement during that period. The order itself, however, contains the clause that “ credit is to be given for each entire week advertisement is not shown,” and I can see no other meaning- of this clause than that if the plaintiff does not perform in any week, the defendant need not pay for that week. If that is the proper construction, then the plaintiff * is not obligated to perform except when it pleases to do so, for the penalty prescribed is merely non-payment for services. not rendered. It seems to me quite immaterial that the contract by its terms provides for an absolute obligation on the part of the defendant; the question in this case is only whether the obligation is enforcible and, in the absence of a binding obligation to perform on the part of the plaintiff, the defendant’s obligation is not enforcible.
Judgment should be affirmed, with costs.
Judgment modified, and as modified affirmed, with costs.