
    The Tribune Association, Appellant and Respondent, v. Eisner & Mendelson Company, Respondent and Appellant.
    
      Excuse or waiver of performance of a contract—it cannot be shown under a plea of performance— action foi' bs'each of a contract- only partially performed by the plaintiff— the expense of the'full performance of the contract may be shown by the defendant.
    
    Where the complaint in an action to recover damages for the breach of a contract alleges full performance by the plaintiff, proof of matters excusing or waiving such performance is not admissible and a recovery cannot be had upon that theory -^at least, where the defendant did -not repudiate the contract.
    
      Semble, that, where the contract has been only partially performed by the plaim tiff, owing to the alleged breach of the contract, the amount of the expense to which the plaintiff would be put in performing the contract may be shown in reduction of the recovery.
    Appeal by the plaintiff, The Tribune Association, from that portion of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of May, 1901, upon the decision of the court rendered after a trial before the court without a jury, as amended nunc pro tunc by an order entered in said clerk’s office on the 31st day of May, 1901, which dismisses the plaintiff’s-first cause of action upon the merits.
    Also, an appeal by the -defendant, Eisner & Mendelson Company, from so much of said judgment as dismisses the defendant’s counterclaim upon the merits, and awards judgment in favor of the plaintiff upon the second cause of action.
    
      Selden Bacon, for the plaintiff.
    
      Julius J. Frank, for the defendant.
   Laughlin, J.:

The complaint contains two causes of action and the answer interposes a counterclaim. The case was tried before the court, a jury trial having been waived. The decision directed the dismissal of the complaint upon the merits as to the first cause of action and also a dismissal of the counterclaim upon the merits and granted judgment for the plaintiff upon its second cause of action.- The plaintiff appeals from the judgment in so far as its first cause of action is dismissed, and defendant appeals from that part of the judgment dismissing its counterclaim and awarding a recovery in favor of the plaintiff upon the second cause of action.

The plaintiff’s first cause of action is for a balance due on an agreement in writing for advertising, and it alleges full performance of the contract on its part. The material allegations relating to the first cause of action are put in issue by the answer. The contract on which the first cause of action was founded was in writing and was made on the 10th day of November, 1893. The plaintiff therein agreed to insert for the defendant 30,000 lines daily & Sunday advertising * * * at the same price as paid heretofore.” It was further therein provided that the advertising should be done within the succeeding sixteen months and be paid for in fully paid unassessable capital stock, $100 per share, of the Johann Hoff ” corporation, organized under the laws of West Virginia with a capital of $750,000, which shares were to be issued quarterly as the advertising was done, and were to be purchased of the plaintiff at par by the defendant within two years after such issue.

The plaintiff has only published about two-thirds of the advertising agreed' to be published under the contract, and for that it has been fully paid. The price paid by the defendant theretofore for similar advertising was forty cents per line less fifteen per cent, or net, thirty-four cents. The plaintiff seeks to recover at this contract price for the remainder of the advertising which it has not published. The defendant duly raised the objection that as the complaint was for performance, the plaintiff could not recover on the theory of waiver of full performance,, and. the complaint was not amended in this regard. The contention of the plaintiff is that it was ready and willing to perform, but that the defendant failed to furnish the advertising matter with, which it could perform, and its counsel cites the case of Smith v. Wetmore (167 N. Y. 234) to sustain this proposition. In that case the evidence showing performance on the part of the plaintiff was received without objection, and the complaint was for that reason amended on appeal to conform to the proof, and we think the rule stated by the court, that “ when performance of a contract is alleged by the plaintiff and denied by the defendant, it is competent for the plaintiff to prove that the defendant would, not allow him to perform, or repudiated the contract, or had committed a breach of it himself, by hindering performance or refusing to abide by its obligations,” does not apply in this case. Here the defendant did not repudiate the contract. It merely failed to call upon the plaintiff to perform, and the plaintiff made no request for performance on the part of the defendant. We think this case is governed rather by the doctrine now firmly established that under a complaint for full performance of a contract, proof of matters excusing or waiving performance is not admissible, and a. recovery may not be had upon that theory. (Gatling v. Central Spar Verein, 67 App. Div. 50; Fox v. Davidson, 36 id. 159; La Chicotte v. Richmond R. & El. Co., 15 id. 380; Weeks v. O'Brien, 141 N. Y. 199.) The defendant had a right to assume that the plaintiff intended to show as it alleged that it advertised 30,000 lines, the full quota specified ill the contract. The defendant was justified in resting lipón its defense that the contract had not been fully performed and that' the plaintiff had been fully paid for the work done. Had the plaintiff alleged a breach of the contract on the part of the defendant in failing to furnish, it the advertising matter and sought to'recover the profits it would have made on performance, the defendant might have interposed a different defense and would then be in the position-of reducing plaintiff’s recovery by the amount of the expense to which plaintiff would be put in performing the contract. (Howard v. Daly, 61 N. Y. 362.) It follows that the complaint as to the first cause of action was properly dismissed.

The second cause of action alleged is both upon an express contract and upon a quantum meruit for advertising- between the 3d day of October and the 15tli day of December, 1895. The plaintiff proved that during this time it published 2,553 lines of advertising matter for the defendant, the reasonable value of which was $1,794 and it has recovered the full amount. This recovery is on the basis of forty cents per line and double charge for display, which was the usual rate charged by the plaintiff in the absence of a special written contract.

If the defendant’s liability for this advertising was on a quantum, meruit we do not agree with the contention of the defendant that the evidence is insufficient to sustain the recovery. It is further claimed, however, that this advertising was done under written contract which fixes the price to be charged at thirty-three and one-third cents per line less fifteen per cent, or twenty-eight and one-third cents net, with no extra charge for display. Mr. Eisner, the secretary of the defendant, testified that in the early part of the summer of 1895 the manager of the plaintiff’s advertising department, Mr. Masters, since deceased, called upon him with reference to making a new contract for advertising; that he told Mr. Masters that he understood the plaintiff was giving lower rates, to other advertisers than to defendant, whereas he, Masters, had constantly assured the witness that the defendant was getting the lowest price, and that was thé reason it made the 30,000-line contract in 1893 ; that Mr. Masters said that some advertisers got a page rate covering ten pages at thirty-three and one-third cents less fifteen per cent, and that they were allowed to split it up in certain spaces as long as it covered ten pages; that the witness, replied that that only made 20,000, and asked how Mr. Masters expected him to obtain a new contract from the defendant when-it had been overcharged, and further said that unless Air. Masters could give the rebate to the defendant on the space already used “ we will not start on a new contract in the Fall; ” that Mr. Masters replied, “ I will try to get you a new contract for the Fall, allowing us the rebate on the space already used; ” that after extended negotiations Mr. Masters finally agreed to this proposition on the 30th day of September, 1895, and the witness, in the presence of Mr. Masters, dictated a letter to his stenographer addressed to “ G. H. Haulenbeek Advertising Agency,” through which the business between plaintiff and defendant had been theretofore carried on, as follows :

“ Gentlemen.—We beg to inform you that we have made an arrangement with the New York Tribune through Mr. Masters, and we hereby authorize you to give them the contract for 50,000 lines, full preferred position at 2S-§- cents per line, to be used during three years; no extra charge for display, cuts or position..
“ From, the first bills rendered under this contract you wil'1 please deduct the amount of $646.83 on the Hoff account and $487.20 on the Carlsbad account, due us from this paper on the old contract.
“Tours very truly,
“EISNER & MENDELSON C(X,
“ Per Eisner.”

This letter was written out, signed and delivered to Hr. Hasters and by him delivered to the advertising agency on October 2, 1895, and he thereupon received copy.for advertising matter and commenced performance of the contract. A few days later Hr. Hasters received a letter from the advertising agency under date of October 4, 1895, containing an order for this advertising which he accepted in writing for the plaintiff. This letter was as follows :

“ Please enter our order for fifty thousand (50,000) agate lines, to be used for the advertising of the Eisner & Mendelson Co. and Johann Hoff, as per copy and instructions furnished by us from time to time. This amount of space to be used within two years if possible. If not, an extension will be given for the balance. Position of this advertising is to be at top of column and alongside reading or first following reading and alongside reading. No extra charge for display, cuts or position. For this please charge us 28-^ ■cents net per line for space used each month.”

Subsequently a misunderstanding arose between the parties as to the terms of the contract for this advertising.' It appears from the correspondence that Mr. Hasters, representing the plaintiff, contended that the understanding was that the plaintiff,- in consideration of the rebate allowed defendant on the old contract, was to receive cash for all stock which it had received from the defendant under the former contract without awaiting the two years therein specified, and the defendant’s secretary contended that there was no such understanding. Accordingly on the 13th day of December, 1895, Hr. Hasters wrote the defendant reciting his understanding of the contract and the controversy that had arisen between them and said that since the defendant’s understanding of the contract seemed to be so entirely different from his, and as defendant did not seem inclined to talk the matter over and adjust it “ it seems best to stop all business now running until such adjustment is made, or new contract can be made. Trust that this will be satisfactory, and hope to have a favorable reply.” On the following day the defendant’s secretary replied asserting his recollection of the parol contract and saying, “ If you have changed your mind or your office does not seem to be satisfied we will stop just there where we left off before I went abroad and will consider the matter as if no agreement or contract had been made between us.” On the thirtieth day of the same month Mr. Masters replied to this letter, reiterating at length his recollection of what took place between him and the defendant’s secretary, and closing as follows: “ As you know the advertising has been stopped for the present until an adjustment can be made of this business.” On the 2d of January, 1896, the defendant, by its secretary, wrote Mr. Masters again, saying that his recollection seemed to be correct in all respects except where he says the new contract was made on the understanding that the defendant was to pay for the stock held by plaintiff in cash, and asserting that Mr. Eisner had a distinct recollection to the contrary, and this letter closed by saying that Mr. Eisner had informed Mr. Masters at the time of the negotiations that the old contract would have to take care of itself, and that was the only way he could secure a new contract from the defendant and that he was of the same opinion still, and, therefore, could not see how they could come to any settlement and that the defendant would “ simply have to do without the Tribune.”

Down to December fourteenth the plaintiff had charged this advertising to the defendant on its books at the rates specified in the letter from the defendants to. the advertising agency and from the advertising agency to plaintiff’s representative. The fair inference is that the minds of the parties never met on the new contract. They mutually so agreed by their correspondence and by suspending the advertising. No subsequent agreement was reached. If either of the parties wished to stand upon its claim it should have asserted its intention so to do; but this neither of the parties did. If the defendant wished to insist as a condition of abandoning the contract that the advertising done up to that time should be charged only at -the' rates intended by tbé contract, it should have made a reservation to that effect. On the contrary, its proposition was, We * - * * will consider the matter as if no agreement or contract had been made between us.”

We are of opinion that neither party insisted that a contract had been made that was to be binding upon the parties either in the past or in the future. In these circumstances the plaintiff was entitled to recover for the advertising thus done as if no contract had been made. '

These views also dispose of the defendant’s counterclaim. The counterclaim was for the rebate under the contract of 1893, which, as has been séen, for the purpose of obtaining the new contract for 50,000 lines of advertising in 1895, the plaintiff agreed to allow on such new contract. The defendant has proceeded on the theory that, the letter from him to the advertising agency, directing the deduction of the two items of $646.83 and $487.20 rebate on the old contract from the first bills rendered by the plaintiff on the new contract, constitutes an account.stated. It neither alleged nor proved the facts which would warrant the allowance of this counterclaim on any other theory than that it was an account stated. It is evident that the defendant yielded to the plaintiff’s claim concerning this rebate in consideration of the defendant giving it the new contract. The new contract- never having been made effectual and having been abandoned by mutual consent, the right to the rebate so far as it rests upon that contract, falls with it. It will be observed that the rebate was to be allowed on the first bills rendered under that contract. As no bills have been rendered, paid or accrued under that contract, it is evident that the defendant cannot be allowed the rebate in the manner contemplated by the parties.

The judgment should be affirmed, but both parties having appealed, the affirmance is without costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, without costs.  