Alfred Marks Realty Co. v. Churchills

Bijur, J. The question in this case is one of law. Defendant contracted with the plaintiff to pay for the insertion of its advertisement, the contract reading: “To International Yacht Publishing Co. * * * Publishers of Souvenir and Program of International Yacht Races.” Payment was to be made “ upon publication and delivery of one copy of the same.” The international yacht races referred to were those of September, 1914, which were officially called off because of the European conflict. Although two cases involving the same issue have already been decided adversely to the respondent in the Appellate Term of the second department (see Alfred Marks Realty Co. v. Gwilliam Co., and Alfred Marks Realty Co. v. George Rector, Inc., N. Y. L. J., March 27,1915, p. 2471), it may not be amiss to call attention to the consideration that this contract falls within the well established rule that, where the performance of an agreement depends upon the happening of an event over which neither party has any control, an implied condition will be read into the agreement to the effect that the contract shall be abrogated upon the non-happening of such an event. See particularly Krell v. Henry, 1903, 2 K. B. 740. Also Lorillard v. Clyde, 142 N. Y. 456, 463; Abbaye v. United States Motor Cab Co., 71 Misc. Rep. 454. It seems too self evident for argument that a pro [372] gram in the sense in which it is used in the agreement in question cannot exist without a series of events to which it relates, and it is still clearer that a souvenir cannot recall what has not taken place. The contract in this case, therefore, comes very close to expressly calling for the contemporaneous occurrence of an event to which the publication shall be contemporaneous. The mere fact that plaintiff, for its own convenience or benefit, chose to “ publish,” in the sense of offering for sale, copies of the so-called souvenir and program prior to the date fixed for the event, cannot change the terms of the agreement or impose an obligation upon the defendant other than that contained in the agreement. Judgment reversed, with costs-, and complaint disr missed, with costs. Guy and Pendleton, JJ., concur. Judgment reversed, with costs.