Freund v. Washington Square Press, Inc.

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Facts: Defendant agreed to publish a book, and Plaintiff would receive a percentage of profits. Defendant later merged with another publisher and refused to publish Plaintiff's book.

Issue: What damages may Plaintiff receive?

Holding: For Plaintiff, but only nominal damages.

Rule:

  • Damages must be proved with reasonably certainty -- royalties were only speculative and unascertainable
  • Specific performance denied -- we don't want to force unwilling parties to work together (as in a service contract)
  • New Business Rule : (eroding)
    • A new business has no track record (thereby introducing uncertainty), which prevents recovery of damages upon breach
    • Can calculate the damages if you have some reasonable basis of calculation (i.e. similar businesses)