Realty Advertising & Supply Co. v. Englebert Tyre Co.

| N.Y. App. Term. | Mar 15, 1915

Shearn, J.

This action was brought upon an executory contract for advertising. The contract provided 1 ‘ The party of the first part [plaintiff] shall have the right to cancel this agreement at any time prior to its expiration upon giving to the party of the second part at least,five days’ notice.” Defendant refused to furnish any advertising, and when sued claimed that the contract was unilateral, void and unenforcible for lack of mutuality because of this cancellation provision.

The mere fact that one party reserved the right to terminate a contract upon notice does not deprive the contract of the element of mutuality. McCall Co. v. Wright, 133 A.D. 62" court="N.Y. App. Div." date_filed="1909-06-18" href="https://app.midpage.ai/document/mccall-co-v-wright-5211924?utm_source=webapp" opinion_id="5211924">133 App. Div. 62; affd., 198 N.Y. 143" court="NY" date_filed="1910-03-22" href="https://app.midpage.ai/document/mccall-co-v--wright-3611134?utm_source=webapp" opinion_id="3611134">198 N. Y. 143. The cases in equity involving cancellation clauses in baseball players ’ and actors’ contracts are not in point. In equity there is a distinction between a mutuality in the obligation of contracts and mutuality of remedy under them. While the reservation of the right to cancel á contract may deprive the party for whose benefit it is made of relief in equity in the nature of specific performance, it does not render the contract void. .This is a mere action at law upon a valid contract. The judgment should be affirmed with costs.

Guy and Pendleton, JJ., concur.

Judgment affirmed, with costs.