Alfred Marks Realty Co. v. Churchills — 90 Misc. 370

Majority

p. 370

Alfred Marks Realty Company, Respondents, v. “ Churchills,” Appellant.

(Supreme Court, Appellate Term, First Department,

May, 1915.)

Headnote

Ccmtracts— performance of — when abrogated upon non-happening of event — when recovery cannot be had.

Where the performance of a contract depends upon the happening of an event over which neither party has control, an implied condition will be read into the contract that it shall be abrogated upon the non-happening of such event.

Where defendant’s payment for an advertisement in plaintiff’s “ Souvenir and Program of International Yacht Races ” was to be made “upon publication and delivery of one copy of the same,” but the races were officially called off because of the war in Europe, plaintiff cannot recover under the agreement because prior to the date fixed for the event he offered for sale copies of the so-called souvenir and program.

p. 371

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff, after a trial by a judge without a jury.

McCombs, Ryan & Gordon (Alexander Gordon, of counsel), for appellant.

John C. Judge, for respondent.

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

p. 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.

Cases cited

Lorillard v. Clyde 142 N. Y. 456 N.Y. 1894-06-05 at 463 p. 371