
    Lyman D. Post, Respondent, v. Albert Frank & Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1912.)
    Offer and acceptance — Essentials and necessity of agreement — Legal effect of contracts.
    Acceptance of an order to publish an advertisement for a definite period is to be inferred from the commencement of publication in pursuance of the order, and the contract thus formed cannot be thereafter canceled by the publisher.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff after a trial before the court without a jury.
    Robert J. Mahon, for respondent.
    Alexander & Ash, for appellant.
   Per Guriam.

The action was brought to recover the price alleged to have been agreed to be paid for certain advertising under the following order:

“ Hew York City, Aug. 20, 1909. “ Publisher, Paper Mill & Wood Pulp Hews,

, Hew York:

Please insert the following order:

Title of Position • / Number Client Advertisement Space Time Rate 3808 ...... Schlisische Cellulose, etc. 5 in. Every 3 weeks for 15 beg. at once Good §229.50 less 2% cash 15 days

“ Important :

“ If rate or space is incorrect Write us at once, and we will be governed according to your acceptance. Copies of each publication must be forwarded• same day.adv. appears.

“ Yours very' truly,

“Albert Frank & Co.

“ Per F. P.”

After certain insertions had been made, defendant undertook to cancel the order. Plaintiff denied defendant’s right so to do and now sues for the full amount stated in the order, less a sum conceded to have been paid. 1 The order being for ' a definite and fixed sum and for a specific number of advertisements or insertions, it must be deemed, in view of the language used, to have been accepted in toto by the commencement of the advertisement, and that plaintiff thereby undertook to complete it. I Having become a binding bilateral^ contract, defendant could not cancel it without plaintiff’s consent. The part performance of an order for a definite number of insertions and for a definite amount necessarily implies an acceptance and an agreement to complete, as, unless completed, nothing would be earned. Mendell v. Willyoung, 42 Misc. Rep. 210; Humphreys Mfg. Co. v. Williams Co., 70 id. 354. Cases such as White v. Kingston Motor Car Co., 69 Misc. Rep. 627, are not in conflict with this rule, as there the past performance implied only an acceptance of the offer to pay according to the insertions; See Per Curiam opinion in North Side News Co. v. Cypres, ante, p. 129.

Present: Giegerich, Lehman and Pendleton, J.J.

Judgment affirmed with costs.  