Kaufman Advertising Agency v. Snellenburgh

43 Misc. 317, 88 N.Y.S. 199

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1904
• Status: Published

Opinions

Mo Call, J.

The complaint in this action sets forth in substance that the defendants being about to engage in the mercantile business, the plaintiff and the defendants entered into an agreement by the terms of which the plaintiff agreed to prepare and cause to be inserted in several of the newspapers of this city notices of the defendants’ business enterprises, which notices are known as “ write ups.” That it was also agreed between the parties that in consideration of the plaintiff preparing and procuring the publication of said “ write ups,” the defendants would place all the advertisements that they might thereafter decide to insert in any newspapers published in this city, through the medium of the plaintiff, and that the plaintiff would place such advertisements in said newspapers therefor; the consideration of so placing the advertisements was to be “ the prestige that the plaintiff would obtain ” by reason of the placing of the advertisements aforesaid.

In the opening of plaintiff’s counsel to the jury in stating the claim of the plaintiff he said: “ In other words the benefit which the plaintiff was to receive for the labor of preparing and securing the insertion of the ‘ write ups ’ was not to be money, but was to be the placing of the important advertising business of the defendants. The benefit to the plaintiff from this would be obvious: it would be the prestige of handling the important advertising business of the defendants for a period of six months. * * * the plaintiff would get no money out of this transaction, but simply the benefit to its business on account of the prestige of handling this vast amount of advertising.”

The breach of this contract was alleged to be the refusal of the defendants, after the plaintiff, had prepared and obtained the insertion of the “ write ups,” to allow the plaintiff, to place its subsequent advertising. Plaintiff claimed that by defendants’ refusal as aforesaid it was entitled to recover the value of the services in “ writing up ” the defendants’ business.

The theory of the plaintiff is, that, notwithstanding the agreement on its part that its services to defendants should be rendered gratuitously and that it was to receive no compensation, “ other than prestige,” if it had been allowed to fully perform its contract, the defendants having been guilty of a breach of the contract, the plaintiff can recover for the work actually done before such breach, and this not upon the contract itself, but upon a quantum meruit for the reasonable value of the services actually rendered.

The plaintiff has .furnished us with no authority in support of such a proposition. The cases relied upon and cited by the plaintiff simply hold that when a person renders services to another to be paid for, not in money, but in goods or some other thing, and the person for whom the services are rendered refuses to fulfill the contract, an action can be maintained for the services rendered. Those cases do not apply. The alleged contract on the part of the plaintiff herein was simply an agreement on plaintiff’s part to do certain work for the defendants for nothing in consideration of being allowed to do certain other work for nothing.

A right of action.' upon a quantum meruit presupposes an express or implied promise to pay for the services rendered, hut the plaintiff’s action cannot he maintained upon that theory, for not only has he not set up a quantum meruit, hut the agreement which he does set forth expressly precludes the theory that there was any promise to pay for the services, and alleges that such services were to be rendered gratuitously. There is neither allegation nor proof that plaintiff would have gained prestige in its business, or that if obtained it would have been valuable to it, had it been allowed to place the defendants’ advertisements.

The agreement on the part of the plaintiff to perform all the services called for by the contract without compensation extended to every portion of such work, and the only consideration for the contract was the prestige derived from the performing of such services, and in the absence of allegation and proof that such prestige would have been gained and was of value, the plaintiff cannot recover.

Judgment and order reversed. New trial ordered, with costs to the appellants, to abide the event.