Opinion
January, 1912.
Robert J. Mahon, for respondent.
Alexander Ash, for appellant.
The action was brought to recover the price alleged to have been agreed to be paid for certain advertising under the following order:
"NEW YORK CITY, Aug. 20, 1909. "Publisher, Paper Mill Wood Pulp News, New York:
"Please insert the following order:
Order Title of Number Client Advertisement Space Time Position Rate
Every 3 $229.50 less 3808 ...... Schlisische 5 in. weeks for Good 2% cash Cellulose, etc. 15 beg. at 15 days once
"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.R."
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. 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. 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. Will-young, 42 Misc. 210; Humphreys Mfg. Co. v. Williams Co., 70 id. 354. Cases such as White v. Kingston Motor Car Co., 69 Misc. 627, are not in conflict with this rule, as there the past performance implied only an acceptance of the offer to pay according to the insertions. See Per Curiam opinion in North Side News Co. v. Cypres, ante, p. 129.
Present: GIEGERICH, LEHMAN and PENDLETON, J.J.
Judgment affirmed with costs.