King Features Syndicate, Inc. v. K M T R Radio Corp.

CRAIL, P. J. This is an appeal from a judgment in favor of the plaintiff in an action for damages for breach of contract. The defendant contends that the judgment should be reversed in so far as the fifth cause of action is concerned because “all of the evidence in the case, taken in the light most favorable to the plaintiff, and coupled with the allegations in the complaint, clearly demonstrate the plaintiff has elected to abandon, and has abandoned all claim for damages for breach of the contract”. We must go to the record to see if there is any substantial evidence to sustain the findings of the trial court.

The law is clear and is well set forth in Sobelman v. Maier, 203 Cal. 1, 9 [262 Pac. 1087, 1090] : “ ‘One who has been injured by a breach of contract has an election to pursue any of three remedies. He may treat the contract as re[249]scinded and may recover upon a quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times ready and able to perform; or third, he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.' (McConnell v. Corona City Water Co., 149 Cal. 60, 64, 65 [8 L. R. A. (N. S.) 1171, 85 Pac. 929]; see, also, Robinson v. Rispin, 33 Cal. App. 536, 539 [165 Pac. 979].) ” See, also, 6 California Jurisprudence, 464, section 276. In the case of Alderson v. Houston, 154 Cal. 1, 12 [96 Pac. 884], the court said, “Upon the election . . . the rights of the parties are to be regarded as then culminating, and the contractual relation ceases to exist, except for the purpose of maintaining the action for the recovery of damages.” (6 Cal. Jur. 458-460; Walker v. Harbor Business Blocks Co., 181 Cal. 773 [186 Pac. 356].)

The parties had entered into a contract whereby the plaintiff was to furnish to the defendant certain news service for broadcasting purposes. The defendant agreed to pay for the same at a certain rate per week in advance." The contract, among other things, contained clause Eighth, which reads as follows: “Should the Broadcaster [defendant] fail to make the weekly payments, hereinabove provided to be paid, the International News Service [plaintiff] shall have the right to discontinue its service to the Broadcaster [defendant] without notice.” The defendant did not pay the weekly sums in advance, and finally repudiated the contract. Count five of the complaint was an action to recover damages by way of lost profits from the time of the repudiation of the contract. It was not an action to collect the full contract price or to enforce the obligation of defendant in full, but only to recover damages by way of lost profits.