North Side News Co. v. Cypres

75 Misc. 129, 132 N.Y.S. 806

Opinion

Per Ouriam.

The plaintiff has recovered judgment for damages for breach of contract. The appellant claims that this contract is void for want of mutuality and relies for authority upon the case of White v. Kingston Motor Car Co., 69 Misc. Rep. 627. The contract contains no express agreement on the part of the plaintiff to perform any act; but: “ Whether a covenant will be read into a contract where there is no express agreement to perform depends upon the intent of the parties gathered from the instrument and the surrounding circumstances.” Commercial Wood & Cement Co. v. Northampton Portland Cement Co., 115 App. Div. 388, 393; affd. on other grounds, 190 N. Y. 1. The acceptance of the offer as .evidenced by the insertion of the advertisement authorized by the defendant did not, under the circumstances existing in the White case, bind the plaintiff’s assignor to continúe the insertions. It- was merely the acceptance of the defendant’s offer to pay a certain amount per insertion. The acceptance of the whole offer was expressly made dependent upon confirmation by a committee of the corporation owning the newspaper. In this case the accept-. anee of the offer to pay a definite sum for the insertion of advertisements during a ‘definite period necessarily implies that the plaintiff agreed to publish these advertisements during this period. . .

Judgment must, therefore, be affirmed with costs.

Present: Giegkerich, Lehman and Pendleton, JJ.

■ Judgment affirmed, with costs.