Freund v. Washington Square Press, Inc.
357 N.Y.S.2d 857, 314 N.E.2d 419 (N.Y. 1974)
wrote a book and Washington Square Press agreed to publish it, granting a
$2k advance as well as royalties.
Square Press merged with another publisher, who refused to publish the
book in any form.
was a 60-day 'right to terminate' clause in the contract, but Washington
Square Press didn't exercise it.
wanted specific performance
(forcing the company to publish the book).
Trial Court denied specific performance, but awarded monetary damages. Freund appealed.
Court found that it would have cost Freund $10k to publish the book
himself, so they awarded him $10k as the cost of completion.That's a very odd way to think about damages, considering that he
isn't going to publish it himself.
there was a dissent that said Freund should recover nominal damages only.
Court said that the case was similar to a construction contract.
In a dissent
it was argued that awarding the cost of publication put Freund in a better position that he would have been if the
contract was honored.
In another dissent
it was argued that there was no reliance interest in the case.The expectation
interest was the advance and the
royalties (notoriety and prestige are not compensable).Advance was received, and
royalties were speculative, not actual loses.The promised result of the contract was a % of the
sales, not the books
damages be calculated by the value to the plaintiff of the promised
performance, or by the cost of that performance to the defendant?
addition to benefit of the bargain
and passing the Hadley test
(foreseeability of loss), you also have to be able to specify a reasonable estimate of what the loss
is.This tends to favor