Summary
In North Side News Co. v. Cypres, 75 Misc. 129, and in Post v. Frank Co., 75 id. 130, this court distinguished the case of White v. Allen-Kingston Motor Car Co., supra, and held that it did not apply in those cases where there was either an express acceptance or an acceptance manifested by the acts of the parties.
Summary of this case from Butchers' Advocate Co. v. BerkofOpinion
January, 1912.
Bloch Hoffman (Alexander Bloch, of counsel), for appellant.
Henry W. Kiralfy, for respondent.
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. 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 A.D. 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 continue 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 acceptance 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: GIEGERICH, LEHMAN and PENDLETON, JJ.
Judgment affirmed, with costs.