132 N.Y.S. 807 | N.Y. App. Term. | 1912
The action was brought to recover the price alleged to have been agreed to be paid for certain advertising under the following order:
, Hew York:
“ Please insert the following order:
Title of Position • / Number Client Advertisement Space Time Rate 3808 ...... Schlisische Cellulose, etc. 5 in. Every 3 weeks for 15 beg. at once Good §229.50 less 2% cash 15 days
“ Important :
“ If rate or space is incorrect Write us at once, and we will be governed according to your acceptance. Copies of each publication must be forwarded• same day.adv. appears.
“ Yours very' truly,
“Albert Frank & Co.
“ Per F. P.”
After certain insertions had been made, defendant undertook to cancel the order. Plaintiff denied defendant’s right so to do and now sues for the full amount stated in the order, less a sum conceded to have been paid. 1 The order being for ' a definite and fixed sum and for a specific number of advertisements or insertions, it must be deemed, in view of the language used, to have been accepted in toto by the commencement of the advertisement, and that plaintiff thereby undertook to complete it. I Having become a binding bilateral^ contract, defendant could not cancel it without plaintiff’s consent. The part performance of an order for a definite number of insertions and for a definite amount necessarily implies an acceptance and an agreement to complete, as, unless completed, nothing would be earned. Mendell v. Willyoung, 42 Misc. Rep. 210; Humphreys Mfg. Co. v. Williams Co., 70 id. 354. Cases such as White v. Kingston Motor Car Co., 69 Misc. Rep. 627, are not in conflict with this rule, as there the past performance implied only an acceptance of the offer to pay according to
Present: Giegerich, Lehman and Pendleton, J.J.
Judgment affirmed with costs.
