Ed. Schuster & Co. v. Kuryer Publishing Company

Siebecker, J. There is no dispute concerning the terms of the contract as originally agreed upon between the plaintiff’s merchandise manager and defendant’s advertising manager on February 18, 1913. The court’s finding that the “contract came to the notice of said Michael Kruszka, business manager of said defendant, some time after August 1, 1914; and that, after it came to his notice the said defendant continued to receive advertising from the said plaintiff in accordance with and pursuant to the terms of the contract and did not disavow the same,” is sustained by the evidence and hence cannot be disturbed on appeal as against the clear preponderance of the evidence. In the light of these facts it must be held that the contract became and is a binding obligation on the defendant in its entirety and plaintiff had the right to’ elect as it did to extend the contract for two years froih March 1, 1916. The evidence shows that defendant refused to receive and publish plaintiff’s advertisements in its páper, as required by the contract, after March 1, 1916, unless plaintiff agreed in advance to pay a higher rate for this space in defendant’s paper which it had sold to the plaintiff under the contract. It is manifest that, had plaintiff complied with defendant’s demands in the respect mentioned, plaintiff would thereby have waived its right to recover compensation for the breach of the contract and the right to have the contract specifically enforced. Under such circumstances it was the plaintiff’s right to stand upon the terms of the agreement and seek the redress the law affords for defendant’s refusal to perform the obligations the contract imposes. The plaintiff asserts that the threatened [330] breach of the contract would cause it irreparable damage and therefore invoked equitable interposition to prevent defendant from carrying out such threatened breach of the agreement. The court found, as the evidence establishes, that the damages resulting from such a breach of the agreement, under the peculiar and special nature of the contract, are impossible of ascertainment and hence a legal measure thereof cannot be arrived at to compensate plaintiff in an action at law. Under the facts and circumstances shown by the record it is. obvious that if plaintiff is deprived of advertising its business in defendant’s paper as specified in the contract the loss, thereby occasioned cannot possibly be ascertained within any legal rules and would result in irreparable injury. This, state of the case furnishes ample basis for invoking equitable jurisdiction to restrain defendant from committing the threatened breach of the contract. Langan v, Supreme Council A. L. of H. 174 N. Y. 266, 66 N. E. 932; Marble Co. v. Ripley, 10 Wall. (77 U. S.) 339; Rolfe v. Burnham, 110 Mich. 660, 68 N. W. 980; Inter-Ocean P. Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822; Humphryes Mfg. Co. v. David Williams Co. 70 Misc. 354, 128 N. Y. Supp. 680. By the Court. — The judgment appealed from is affirmed. EsciiweileR, J., took no part.