#### John Thomas Wood, Doing Business Under the Name and Style of Publishers Subscription Exchange, Respondent, *v.*The Butterick Publishing Company, Appellant.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Contracts — substantial performance of — trial — evidence.

There can be a recovery for substantial performance'of a contract in lieu of complete performance only when the omissions are slight and unsubstantial, are readily supplied at the contractor’s expense, and the damages due to defects in performance are easily estimated so that proper allowance may be made therefor.

Appeal by defendant from a judgment of the City Court of the city of New York entered in favor of the plaintiff upon the verdict of a jury and also from an order denying a motion for a new trial.

James B. Sheehan, for appellant.

Henry Staton, for respondent.

Page, J.

The action is brought to recover certain rebates upon magazine subscriptions obtained by the plaintiff for the defendant. The defendant sets up a *535written contract and alleges that it only agreed to pay for the services rendered by the plaintiff according to the terms and conditions of the contract, which conditions the plaintiff has not performed. There is also a counterclaim of $1,000 for money advanced by the defendant to the plaintiff and a certain claim for $1,177.80 for subscriptions accepted by the defendant from the plaintiff and never paid for by the plaintiff.

The plaintiff is in the business of advertising for subscriptions for the various magazines in the country by means of a catalogue which it issues setting forth the attractions of the magazines and offering them to the public in groups at reduced rates. A periodical which joins the plaintiff’s exchange is presented with copies of this "catalogue for use among its subscribers and by its agents, offering that magazine in combination with others as an inducement.- All subscriptions to other magazines so obtained are forwarded by the member of the exchange to the plaintiff, and the plaintiff makes an arrangement with the various publishers to be compensated-for the subscriptions so obtained.

The defendant, Butterick Publishing Company, made a contract in writing with the plaintiff for the taking of advertising space in the plaintiff’s catalogue, wherein it was agreed that the plaintiff should print and distribute not less than 1,000,000 copies of the said catalogue in which “The Delineator” and “Everybody’s Magazine ” would be prominently featured as follows:

“ 1. A special combination containing the Delineator and Everybody’s will appear on the cover, and a space five-eighths deep and the width of the page is to be given to The Delineator and Everybody’s on the top and bottom of fourteen pages and at the bottom of one additional page.” There was further provision for a one-page advertisement to be inserted and the *536Butterick Publishing Company agreed to advance to the plaintiff $1,000 to be deducted from rebates to be earned in the future. The consideration for this advertising was a net rate of seventy cents on The Delineator arid $1 on Everybody’s and *“*a rebate from these net rates on The Delineator, on the basis of 4c per thousand until 5,000 subscriptions have been secured, and a rebate on Everybody’s at the rate of 4c per thousand until 5,000'have been produced, making the net ráte on The Delineator 50 cents and the net rate on Everybody’s 80 cents in advance of these quantities.”

At the trial it was not disputed that out of 1,029,000 catalogues sent out by the plaintiff in alleged performance of its contract with the defendant more than 100,000 or ten per cent, did not have the name of either Everybody’s Magazine or The Delineator featured upon the cover, and it was shown that of the remaining ninety per cent, more than half contained no advertisement upon the cover pffering The Delineator and Everybody’s in combination as required by the contract. It was submitted to the jury to determine whether this was a substantial performance of the contract by the plaintiff and the jury by its verdict has found that it was. I am of the opinion, however, that in the first place this is not a case to which the doctrine of substantial performance could apply, and secondly, that the learned trial justice in his charge misled the jury as to the criterion by which they should have been governed. As pointed out by the Court of Appeals in the cases of Spence v. Ham, 163 N. Y. 220, and Dauchey v. Drake, 85 id. 407, the law allows a recovery for substantial performance of a contract in lieu of full performance only where the omissions are slight and unsubstantial, are readily supplied at the contractors ’ expense and the damages due to defects in *537performance are easily estimated so that proper allowance may be made therefor. In the case at bar the nonperformance was of a very substantial portion of the contract and it would be impossible to estimate the loss which the defendant may have sustained by reason thereof. The learned justice in his charge said: *11 *** * de£en(]ant contends that the plaintiff did not properly feature The Delineator and Everybody’s Magazine upon the front page of the catalogue; the plaintiff admits that upon 100,000 it was not done, but irrespective of that the plaintiff contends that it was so properly featured throughout the book that the plaintiff did procure for the defendant the subscriptions as called for in his contract.” He proceeds to instruct them that thi§—wag~the~ question of fact for them to determme^This was misleading, for the reason that the^pfiaintiff was not called upon by his contract^e-durnish any definite number of subscriptions, amj^the fact that he furnished a large number is no /Evidence to prove that a substantially larger number could not have been obtained had the advertisements complied with the contract.

It was also proved at the trial that a large proportion of the subscriptions upon which the plaintiff claims his rebates was not obtained by him in the course of his business by means of the advertisements contained in his catalogue but was collected by the American News Company from subscribers who never saw the plaintiff’s catalogue. It appeared that the plaintiff induced the American News Company to send in its subscriptions through him by forwarding them to Pearson’s Magazine, one of plaintiff’s subscribers, and pretending that they were produced by Pearson’s through plaintiff’s catalogue, thus obtaining a cheaper rate and larger rebate upon subscriptions having no relation to the advertising for which the cheaper rate *538was given. While it would he straining the words of the contract to spell out an express prohibition of these tactics, it was clearly never the intention of these parties that the rebates allowed the plaintiff by the defendant should apply to subscriptions not secured or produced by the plaintiff through its catalogue. Both parties at the time the contract was made understood the plaintiff’s method of doing.business and the object of its catalogue and contracted with reference to it. That they both so understood the contract is demonstrated by the letter in evidence written by the defendant to the plaintiff on February 24, 1911, demanding a separation of American News Company subscriptions from the others and refusing to grant the rebate upon them, and by the pluiníiíf ’s-T&ply to it, dated February 27, 1911, acquiescing. in that interpretation of the contract.

As the rebates upon American News'Comjm$\y subscriptions were improperly allowed, and there waSxfi-0 evidence from which to determine how many of tlnK plaintiff’s subscriptions were *bona fide,*there was no evidence to support the finding of the jury for the plaintiff.

Judgment reversed, with costs, and judgment directed for the defendant for $2,177.80, with costs and interest from March 17,1911.

Gruv and Gbbabd, JJ., concur.

Judgment reversed, with costs.