
    Anthony Stumpf et al., Appellants, v. Carrie Merz, Respondent.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Contract — Advertisement in newspaper — Damages for breach.
    Where the insertion of defendant’s advertisement in plaintiffs' newspaper, under a contract for one year, is discontinued at the end of the first quarter on notice from defendant, plaintiffs are entitled at once to sue for part performance and for loss of profits on the part which they were not permitted to perform because of defendant’s breach of the contract.
    Blanchard, J, dissented.
    Appeal by the plaintiffs from a judgment rendered in favor of the defendant in the Municipal Court of the city of ¡New York, second district, borough of The Bronx.
    H. Gerald Chapin, for appellants.
    Charles Tein, for respondent.
   O’Gorman, J.

The defendant entered into a contract with the plaintiffs to pay a stipulated sum, payable in quarterly payments, for the insertion.of an advertisement in the plaintiffs’ newspaper, for the period óf one year. At the expiration of the first quarter, the defendant notified the plaintiffs not to continue the advertisement. This notice was complied with, and plaintiffs now sue to recover damages for defendant’s breach of the contract. On the trial proof was excluded as to the expense, if any, which the plaintiffs would incur in the continued publication of the advertisement for the remainder of the period, and the plaintiffs were allowed only the balance due for the period during which the advertisement actually appeared. This was error requiring the reversal of the judgment. The defendant committed a breach of her contract when she ordered, without cause, the termination of the advertisement The plaintiffs were then warranted in treating the defendant’s act as putting an end to the contract for all purposes of performance, and suing for the part performed and for loss of profits on the part which the plaintiffs were not permitted to perform in consequence of the defendant’s repudiation of her obligation. 7 Am. & Eng. Ency. of Law, 152.

Judgment reversed and new trial ordered, with costs to plaintiffs to abide the event.

Scott, J., concurs.

Blanchard, J. (dissenting).

The defendant made a written contract with the plaintiffs, whereby plaintiffs were to publish the advertisement of the defendant in their paper once each week for the term of one year, for which the defendant agreed to pay thirty-five dollars. The defendant paid on account four dollars. At the end of three months defendant notified plaintiffs in writing to discontinue the publication of the advertisement and they accordingly discontinued it.

The plaintiffs sued the defendant for a breach of the contract, and the trial court held that the plaintiffs were entitled to recover only the proportionate share of the thirty-five dollars, that is, eight dollars and seventy-five cents for the three months, less the amount paid on account, and gave judgment for the plaintiffs in the sum of four dollars and seventy-five cents and costs.

On the trial the plaintiffs attempted to prove as elements of damage that they had paid commissions to an advertising solicitor for procuring the advertisement and what their profits would have been had they been allowed to continue the advertisement, but the trial court excluded such evidence and plaintiffs duly excepted, and they' now appeal to this court.

We think the trial court properly excluded the evidence and awarded the correct measure of damages. Had the plaintiffs gone on and completed the contract or even' properly protested against the act of the defendant in discontinuing the publication of the Advertisement, they might have recovered the full contract price. They acquiesced and their, acquiescence was fatal.

The judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  