Fruend v Washington Square Press
Ct. of Appeals NY 1974
Author:- Sam Biers

Facts: Prof. Fruend, an author and teacher, and defendant, entered into a contract to publish and sell a “drama,” book.  Upon delivery the Plaintiff would get $2000.00.  If def. deemed it wasn’t suitable for publication, they had the right to terminate within 60 days.  Otherwise, def. agreed to publish hardbound edition w/i 18 mos. and afterwards a paperback.  The plaintiff would receive royalties at a rate of 10% for the first 10,000 copies.  If def. did not publish wi 18 mos then the agreement terminated and def’s rights revert to the plaintiff.

Issue: What damages are recoverable as a result of a breach of contract?

Holding: Yes, nominally.

Rule: IF damages were reasonable foreseeable, at the time of the contract, then reliance damages.  If a difference in value received minus value expected, or difference in the cost to perform minus diminution of value, then expectation damages.  Unless damages are ascertained with adequate certainty, plaintiff may recover only nominal damages, in name only, plus costs.

Procedure: Trial ct. judgment for plaintiff and awarded damages $10,000 to cover cost of publishing hardbound edition.  Appellate Division affirmed.  Reversed for modification, $.06.

Ct. Rationale: In ordering def. to return the manuscript plaintiff’s restitution interests is protected. Plaintiff alleged no reliance losses suffered. The plaintiff should not recover mor e from the breach than he would have gained had the contract been fully performed.  Had the plaintiff contracted for the printing, binding, and delivery of the manuscript then he would be due damages by the cost of replacement or completion.

Plaintiff: A cost of the breach was lost royalties at 10% per 10,000 copies, plus cost.  This injury was foreseeable at the time of the contract.

Defendant: The only damage suffered cannot be measured.