Freund v. Washington Square Press, Inc.

314 N.E. 2d 419 (1974)

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Nature of the Case

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Facts

Freund (P) entered into an agreement with Washington (D) to publish a book written by P for a $2,000 advance upon delivery and thereafter if D deemed the manuscript not suitable for publication it had 60 days to terminate the agreement and unless terminated, D was to publish the work in hardbound edition within 18 months and afterward in paperback edition. D would also pay royalties to P upon a specified percentage of sales. If D failed to publish within 18 months, the rights of the book were to revert back to P. In all events P was entitled to keep the advance. P delivered the manuscript and was paid his advance. D merged with another publisher and no longer published in hardbound and refused to publish the manuscript even though it paid the advance and did not terminate the agreement within 60 days. P sued. P sued for specific performance and damages to his career and lost royalties. The trial court denied specific performance and the damages to his career but did award the cost of publishing in a hardback edition; $10,000. The Appellate Division affirmed the finding that the cost of publication was a proper measure of damages just the same as the cost of completion may be the proper measure of damages for a builder’s failure to complete a house or for the use of wrong materials. The dissent indicated that P was only entitled to nominal damages. D appealed.