Stumpf v. Merz

50 Misc. 543 | N.Y. App. Term. | 1906

Davis, J.

There have been two trials of this action. On

the first trial plaintiffs recovered four dollars and seventy-five cents damages and four dollars and seventy-two cents costs, and from the judgment entered they appealed to the Appellate Term on the ground that the damages were insufficient. The Appellate Term reversed the judgment appealed from, and ordered a new trial. On the former appeal the court held that the-defendant had broken her contract with the plaintiffs and that the plaintiffs were warranted in “ suing for the part performed and for loss of profits on the part which the plaintiffs were not permitted to perform in consequence of the defendant’s repudiation of her obligation.” A new trial was had pursuant to the judgment of reversal. Substantially the same proof was made and with the same result, viz., a judgment in favor of the plaintiffs for four dollars and seventy-five cents damages and four dollars and seventy-two cents costs. The plaintiffs appealed also from this judgment on the ground of insufficiency of damages and this appeal is now before the court on substantially the same state of facts. The plaintiffs are the owners of a weekly newspaper known as North Side News. The defendant keeps a candy store. She entered into a contract with the plaintiffs under which she was to pay them thirty-five dollars for a year’s advertising in the North Side News. These payments were to be made quarterly. At the end of the first quarter defendant notified .the plaintiffs to go no further with the advertisement. They thereafter ceased inserting the advertisement and brought this action to recover damages for breach of contract. The defendant had paid four dollars on account. The space contracted for was about four and one-half inches long by five-eighths inch in width. The contract did not call for space in any-particular part of the paper. The main question here is what rule of damage should be applied in plaintiffs’ behalf. They held a year’s contract. They were to receive thirty-five dollars for a year’s advertising. The defendant broke the contract. She must, therefore, make up to the plaintiffs for their actual loss — the loss of the benefit to them in case the contract had been carried out. The rule to be applied is to ascertain the amount of money it would have cost plaintiffs to carry out their part of the contract, including in this case the expense of commissions, and deduct this amount from the contract price of thirty-five dollars. The difference would represent the benefit which the plaintiffs woud have enjoyed had the contract been carried out. This is the only rule that is fairly deducible from the opinion rendered on the former appeal. See also Sedg. Dam. (8th ed.), § 618. In estimating these damages we think there should be no deduction from the plaintiffs’ demand based upon the fact that for three-quarters of a year they had the use of tire space formerly occupied by defendant’s advertisement. There is no reasonable ground for such a charge against the plaintiffs. It may be that, had the contract provided for a space located in a special and prominent part of the paper, plaintiffs’ claim might be reduced by the amount of their profits from, others for nine months’ use of this space. But here the advertisement was to take its place in a very small space anywhere among numerous others. Assuming that this space was occupied by another advertisement for the remaining nine months, the acceptance and publishing of this additional advertisement did not depend upon plaintiffs’ having control of the space formerly used by the defendant. It would have been inserted and published whether or not the defendant kept her contract. It needed only a cutting out of a small amount of reading matter to do this. We, therefore, think .that the court below should give no consideration in this particular case to what use was made of this advertising space for the remaining nine months of defendant’s contract. On the trial the plaintiffs attempted to prove the cost to them of printing and publishing-defendant’s advertisement. They were not permitted to do this under objection from the defendant. In sustaining these objections we think the court erred.

The judgment should he reversed and a new trial granted, with costs to appellants to abide the event.

Gildersleeve and Clinch, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.