141 N.Y.S. 509 | N.Y. App. Term. | 1913
The action is brought to recover certain rebates upon magazine subscriptions obtained by the plaintiff for the defendant. The defendant sets up a
The plaintiff is in the business of advertising for subscriptions for the various magazines in the country by means of a catalogue which it issues setting forth the attractions of the magazines and offering them to the public in groups at reduced rates. A periodical which joins the plaintiff’s exchange is presented with copies of this "catalogue for use among its subscribers and by its agents, offering that magazine in combination with others as an inducement.- All subscriptions to other magazines so obtained are forwarded by the member of the exchange to the plaintiff, and the plaintiff makes an arrangement with the various publishers to be compensated-for the subscriptions so obtained.
The defendant, Butterick Publishing Company, made a contract in writing with the plaintiff for the taking of advertising space in the plaintiff’s catalogue, wherein it was agreed that the plaintiff should print and distribute not less than 1,000,000 copies of the said catalogue in which “The Delineator” and “Everybody’s Magazine ” would be prominently featured as follows:
“ 1. A special combination containing the Delineator and Everybody’s will appear on the cover, and a space five-eighths deep and the width of the page is to be given to The Delineator and Everybody’s on the top and bottom of fourteen pages and at the bottom of one additional page.” There was further provision for a one-page advertisement to be inserted and the
At the trial it was not disputed that out of 1,029,000 catalogues sent out by the plaintiff in alleged performance of its contract with the defendant more than 100,000 or ten per cent, did not have the name of either Everybody’s Magazine or The Delineator featured upon the cover, and it was shown that of the remaining ninety per cent, more than half contained no advertisement upon the cover pffering The Delineator and Everybody’s in combination as required by the contract. It was submitted to the jury to determine whether this was a substantial performance of the contract by the plaintiff and the jury by its verdict has found that it was. I am of the opinion, however, that in the first place this is not a case to which the doctrine of substantial performance could apply, and secondly, that the learned trial justice in his charge misled the jury as to the criterion by which they should have been governed. As pointed out by the Court of Appeals in the cases of Spence v. Ham, 163 N. Y. 220, and Dauchey v. Drake, 85 id. 407, the law allows a recovery for substantial performance of a contract in lieu of full performance only where the omissions are slight and unsubstantial, are readily supplied at the contractors ’ expense and the damages due to defects in
It was also proved at the trial that a large proportion of the subscriptions upon which the plaintiff claims his rebates was not obtained by him in the course of his business by means of the advertisements contained in his catalogue but was collected by the American News Company from subscribers who never saw the plaintiff’s catalogue. It appeared that the plaintiff induced the American News Company to send in its subscriptions through him by forwarding them to Pearson’s Magazine, one of plaintiff’s subscribers, and pretending that they were produced by Pearson’s through plaintiff’s catalogue, thus obtaining a cheaper rate and larger rebate upon subscriptions having no relation to the advertising for which the cheaper rate
As the rebates upon American News'Comjm$\y subscriptions were improperly allowed, and there waSxfi-0 evidence from which to determine how many of tlnK plaintiff’s subscriptions were bona fide, there was no evidence to support the finding of the jury for the plaintiff.
Judgment reversed, with costs, and judgment directed for the defendant for $2,177.80, with costs and interest from March 17,1911.
Gruv and Gbbabd, JJ., concur.
Judgment reversed, with costs.