Lee Lash Co. v. Toledo Transfer Co.

158 N.E. 15, 25 Ohio App. 325, 5 Ohio Law. Abs. 104, 1927 Ohio App. LEXIS 622

• Court: Ohio Court of Appeals
• Decided: January 24, 1927
• Docket: 1775
• Status: Published

Opinion

CULBERT, J.

The Lee Lash Co. brought an action against the Toledo Transfer Co. in the Toledo Municipal Court on an account for advertising material in the way of placing an advertisement in one of the local theatres, “for any or all of 104 weeks.” After a year’s service had been rendered, the Transfer Co. cancelled the contracts by letter; but the plaintiff refused to cancel and continued the service up to the end of the period for which it claims the contracts provided. .

Judgment was rendered in favor of the Transfer Co. and the Lucas Common Pleas affirmed this judgment. Error proceedings were prosecuted to reverse the judgments below and the Court of Appeals held:

1. This action is based upon executory contracts and is for services rendered and advertising-' furnished after the direction for cancellation by defendant had become effective.

2. It is a general rule that where a contract is executory, a party has the power to stop the performance on the one side by explicit direction to that effect, subjecting himself to such damages as will compensate the other party for beim? stopped in the performance on his pari, at Ahat stage in the execution of the contract. The party thus forbidden, cannot thereafter go on an thereby increase the damages and recover such increase from the other party.

3. Hence when notice not to proceed with the work under the contracts is given, the only remedy plaintiff in this case would have would be for what damages it might have suffered by reason of the cancellation of the contracts on part of the defendant, and it is not an action on account.

Judgment affirmed.

(Richards & Williams, JJ., concur.)