Stumpf v. Merz

46 Misc. 610, 92 N.Y.S. 789

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1905
• Status: Published

Opinions

O’Gorman, J.

The defendant entered into a contract with the plaintiffs to pay a stipulated sum, payable in quarterly payments, for the insertion.of an advertisement in the plaintiffs’ newspaper, for the period óf one year. At the expiration of the first quarter, the defendant notified the plaintiffs not to continue the advertisement. This notice was complied with, and plaintiffs now sue to recover damages for defendant’s breach of the contract. On the trial proof was excluded as to the expense, if any, which the plaintiffs would incur in the continued publication of the advertisement for the remainder of the period, and the plaintiffs were allowed only the balance due for the period during which the advertisement actually appeared. This was error requiring the reversal of the judgment. The defendant committed a breach of her contract when she ordered, without cause, the termination of the advertisement The plaintiffs were then warranted in treating the defendant’s act as putting an end to the contract for all purposes of performance, and suing for the part performed and for loss of profits on the part which the plaintiffs were not permitted to perform in consequence of the defendant’s repudiation of her obligation. 7 Am. & Eng. Ency. of Law, 152.

Judgment reversed and new trial ordered, with costs to plaintiffs to abide the event.

Scott, J., concurs.