Mendell v. Willyoung

Decided December 15, 1903

New York Supreme Court · decided 1903-12-15

Offer and acceptance — Implied acceptance — Entire contract — Measure of damages on rescission. The presentation by a solicitor of a publishing company to a "person of a printed form providing for the insertion in its weekly publication of his advertisement for twenty-six times, on alternate weeks, for a price fixed for each insertion payable monthly, is an offer, and when the person signs it and the- publication containing the advertisement is subsequently sent to him regularly, there is an acceptance, the contract becoming irrevocable, when publication of the advertisement begins. The contract is entire. Where the person gives notice of rescission after the ninth publication of the advertisement the publishing company is not entitled to continue publication as it is its duty to make the advertiser’s loss as small as possible. The company can recover for nine insertions but beyond that probably only for the profit it would have made had the contract been fully carried out.

Cited by 2 later decisions — most recently November 1933

1 federal appellate · 1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1903-12-15

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Blauohaed, J. (Concurring.)

¶1The contract sued upon is wanting in mutuality, and is not enforceable.

¶2As the plaintiff’s assignor was not bound to publish the. defendant’s advertisement, the law gave the defendant the ■ *215light to discontinue its publication at any time. He appears to have exercised this right by giving' notice to plaintiff’s assignor to discontinue, and after such notice his liability ceased.

¶3The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

¶4Judgment reversed and new trial ordered, with costs to appellant to abide event.