Freund 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 might get. 


Conclusion: The plaintiff may only recover nominal damages.


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