Summary
In Ware Bros. Co. v. Cortland C. C. Co. (192 N.Y. 439), cited supra, the defendant entered into a contract with the plaintiff wherein it agreed to pay plaintiff the sum of $350 for publishing its advertisement once a month for twelve months in a monthly publication.
Summary of this case from Oswego Falls P. P. Co. v. Stecher Lith. Co.Opinion
Submitted June 9, 1908
Decided September 29, 1908
T.B. Merchant and L.M. Merchant for appellant.
Harvey D. Hinman, Archibald Howard and Thomas B. Kattell for respondent.
On the 14th day of March, 1903, the defendant, Cortland Cart Carriage Company, entered into a written contract with the plaintiff, Ware Brothers Company, by which the defendant agreed to pay the plaintiff the sum of $350 for publishing its advertisement once a month for twelve months in a monthly publication, issued by the plaintiff, known as "The Vehicle Dealer." Thereafter and on the 2d day of April, 1903, and after it is claimed the plaintiff had prepared the defendant's advertisement for printing in its "Vehicle Dealer," the defendant wrote the plaintiff asking it to cancel the contract. This the plaintiff refused to do, and thereupon it published the advertisement for the period designated in the contract, and then upon the refusal of the defendant to pay therefor brought this action to recover the amount of the contract price.
Upon the trial the plaintiff proved the contract and its performance thereunder, and rested. Then the defendant produced evidence, to the effect that it had directed the contract to be canceled and not performed by the plaintiff, and then rested. The court dismissed the plaintiff's complaint upon the ground that the contract price was not the measure of damages which the plaintiff was entitled to recover; and inasmuch as there was no evidence showing the amount of damages that had been sustained by the plaintiff by reason of the revocation of the contract by the defendant, there could be no recovery.
It will be observed that the contract ran for one year, and that no payment was due until the contract had been fully performed by the plaintiff. It required the printing of the defendant's advertisement in the plaintiff's publication monthly for that period of time, and its circulation among the subscribers for the plaintiff's "Vehicle Dealer." The contract in some respects differs from that of the ordinary employment of servants for specified terms, but we see no reason why the rule pertaining to such contracts should not apply and control in the disposition of this contract. ( Clark v. Marsiglia, 1 Denio, 317; Lord v. Thomas, 64 N.Y. 107-109; Railway Advertising Co. v. Standard R.C. Co., 83 App. Div. 191; affirmed, 178 N.Y. 570. )
In the case of Howard v. Daly ( 61 N.Y. 362) it was held that where a contract for future employment had been entered into, and afterwards revoked by the employer, the remedy of the employee is an action to recover damages as for a breach of the contract. In such an action the damages are prima facie the amount of the wages for the full term, and the burden of proof is upon the defendant to show the mitigation in damages. While this rule may have received some criticism in other jurisdictions, it has steadily been adhered to in the Supreme Court, and has recently been re-asserted in this court in the case of Milage v. Woodward ( 186 N.Y. 252-257). (See also Allen v. Glen Creamery Co., 101 App. Div. 306, and authorities cited.)
Applying this rule to the case under consideration, it is apparent that the court erred in its conclusion of law, to the effect that there was no evidence showing that there were damages occasioned by the revocation of the contract by the defendant; for the contract price would prima facie be the measure of damages, unless the defendant should show the amount that should be deducted therefrom by reason of its revocation of the contract.
In reaching the result above indicated, we wish it understood that it is not our purpose to extend the rule beyond the facts found in this case. Nor is it our purpose to limit or impair the rule that, in a breach of an ordinary contract for the manufacture of an article or the supplying of goods or merchandise, including that which is known as ordinary job printing, the damage is the difference between the contract price and the cost of the goods, merchandise or manufactured article, in which the burden of showing the damages rests on the plaintiff. The distinguishing feature in this case, as we regard it, is that the publishing of an advertisement in a periodical is the same as the publishing in a daily or weekly newspaper which involves the investment of no additional capital or the use of any material other than the ink used and the paper upon which it is printed, and these articles are of such trivial value as not in our judgment to change the character of the contract from one for services to be rendered.
The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.
CULLEN, Ch. J., VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment reversed, etc.