Supreme Court, Appellate Division, Second Department, New York.
December 10, 1915.
Appeal from Appellate Term, Second Department.
Action by Alfred Marks Realty Company against the Hotel Hermitage Company. From an order of the Appellate Term, affirming a judgment of the Municipal Court for plaintiff, defendant appeals, Reversed, and complaint dismissed.
Argued before JENKS, P.J., and CARR, MILLS, RICH, and PUTNAM, JJ.
About August 15th or 17th the Yacht Club committee 485 having charge of the races (in which this publication company had no voice or control) declared the same off, because of the war. The challenger, Shamrock IV, did not arrive till August 20th, and at this time three American yachts were having trials to ascertain which should be chosen to defend the cup in the September races. On August 25th plaintiff's assignor wrote defendant that a sample copy of souvenir and program of the international yacht races, with defendant's advertisement inserted therein, had been mailed.
‘As you are no doubt aware the cup races have been postponed until 1915 on account of European disturbances. Even without the races the book as a souvenir is a good seller and a good advertisement. We expect an unprecedented sale before and after the races, many of which have already subscribed for cash in advance. We claim it is the best book ever for the price. The work will be placed on public sale later. Kindly remit us your check.‘
Obviously defendant and the publishing company had in view the September cup racing. Defendant's advertisement was in connection with this contest. A program is for events to which it relates, and a souvenir ‘cannot recall what has not taken place.‘ Alfred Marks Realty Co. v. ‘Churchills,‘ 153 N. Y. Supp. 264, 265. The issue of the exhibit here, though styled program and souvenir, was anticipatory. Such an issue and sale for the convenience of plaintiff's assignor, is not a ‘publication‘ in the sense of this contract. A condition is implied of two contestants being named for the time and place of a race; and where this feature is obvious, a failure, by giving up the expected contests, abrogates the contract. Lorillard v. Clyde, 142 N. Y. 456, 463, 37 N. E. 489, 24 L. R. A. 113.
This is not where a promisor has failed to guard himself against a vis major. It is not a performance on one side, the other having no appropriate clause to excuse default. But it is where the situation, as it turns out, has frustrated the entire design on which is grounded the promise. An advance issue of the programs cannot fairly be held to be what defendant was to pay for. The object in mutual contemplation having failed, plaintiff cannot exact the stipulated payment.
The order of the Appellate Term should be reversed, and the 486 judgment of the Municipal Court for plaintiff reversed, with costs of the appeals, and the complaint dismissed, with costs. All concur.