
    The Lee Lash Co. v. The Toledo Transfer Co.
    
      Contracts — Advertising contract canceled by defendant — Plaintiff cannot recover on account for advertising after cancellation ordered.
    
    Where defendant by letter canceled a contract under which plaintiff was placing theater advertising for defendant, plaintiff cannot recover in an action on an account for advertising furnished after the direction for. cancellation had become effective.
    (Decided January 24, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Fritsche, Kruse & Winchester, for plaintiff in error.
    
      Mr. John C. Cochrane and Mr. J. E. Farber, for defendant in error.
   Culbert, J.

This case was originally started in the municipal court of the city of Toledo, where a judgment was rendered in favor of the defendant, the Toledo Transfer Company. Thereupon an appeal was perfected to the court of common pleas of Lucas county, where the case was tried to a jury and a verdict rendered in favor of the defendant. A motion for a new trial was filed and overruled by the trial court and judgment entered on the verdict. Proceedings in error are now prosecuted here to reverse the judgment so rendered by the court of common pleas.

The petition is one on an account, and alleges, among other things, that there is due plaintiff from the defendant the sum of $487.50, on an account, being for advertising material and services furnished and rendered under and pursuant to two certain contracts in writing, dated, respectively, June 16, 1922, and September 21, 1922, and attached to the petition is an itemized statement of account. An answer was filed by the defendant denying certain allegations of the petition and setting up copies of the contracts between the parties, which provide, among other things, that the plaintiff was to place an advertisement for the defendant on the act or street drop of Keith’s Theater, and one on the act or street drop of the Rivoli Theater, in the city of Toledo, “for any or all of 104 weeks,” beginning at certain times mentioned therein. A reply was filed in which the plaintiff admitted the execution of the contracts and that the copies thereof attached to the answer are correct copies. The issue is made by the pleadings, primarily, whether defendant, under the facts and circumstances, was entitled to terminate the contract and thus be relieved from further liability. The evidence disclosed by the record shows that on July 10, 1923, and after one year’s service had been rendered, the defendant canceled the contracts by letter, that letter containing instructions to cancel the contracts, which the plaintiff refused to do. Several letters passed between the parties, but the plaintiff refused to cancel and continued the service up until the end of the period for which it claims the contracts provided. This action is based upon executory contracts and is for services rendered and advertising furnished after the direction for cancellation by defendant had become effective.

“It is a general rule that where a contract is executory, a party has the power to stop the performance on the one side by an explicit direction to that effect, subjecting himself to such damages as will compensate the other party for being stopped in the performance on his part at that point or stage in the execution of the contract. The party thus forbidden, cannot thereafter go on and thereby increase the damages and recover such increase from the other party.” 23 Ruling Case Law, 1411, Section 235.

Hence it follows that when notice not to proceed with the work under the contracts was given the only remedy plaintiff in this case would have would be an action for what damages it might have suffered by reason of the cancellation of the contracts on the part of the defendant, which is not an action on an account. Whether an action can now be maintained for damages, we need not determine.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Richards and Williams, JJ., concur.  