v. Washington Square Press, Inc.
Court of Appeals of New York, 1974.
34 N.Y.2d 379, 357 N.Y.S.2d 857, 314 N.E.2d 419.
Dawson, pp. 82-85
Facts: Freund made a contract with
Washington Square to publish a book. The terms included a $2,000 advance upon
delivery of the manuscript and an agreement to publish the work in hardcover
and paperback editions. Freund in fact
delivered the manuscript and collected the $2,000, but the defendant did not
publish the book. The plaintiff sued at
first for specific performance of the contract.
The trial judge denied specific performance but granted a trial for
monetary damages. The plaintiff sued for damages stemming from a
delay of his academic promotion, loss of royalties, and the cost of publication
if he had published the book himself.
The trial court awarded him the cost of publication but not the other
two elements. The plaintiff appealed,
and the appellate court upheld the verdict 3-2, with the minority holding that
the plaintiff should recover only nominal damages.
Issue: Should the author be able
to recover the cost of publishing the book himself?
Rule: Damages are not awarded
based on the benefit to the breaching party, but rather according to the
consequences of the breach to the plaintiff.
Analysis: The court argues that the plaintiff
expected two things from the performance of the contract: the advance and
royalties. The author already has his
advance, and the court says that damages for lost royalties cannot be awarded
because insufficient evidence was presented at trial to support how much he
Conclusion: The plaintiff may only
recover nominal damages.
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