The appellants rely upon three objections to the judgment: (1) That the referee adopted an erroneous measure of damages; (2) that *48the evidence shows that defendants canceled the contract under the provision therein permitting such cancellation ; (3) that the injunctive provisions of the judgment are unauthorized.
By the contract the defendants deprived themselves of the right of publishing advertisements of their own products, or for others than the plaintiff, in their magazines beyond the space reserved by the terms of the contract, and they could not lawfully use either magazine for such purpose without contracting with and settling with the plaintiff therefor. Nevertheless, as publishers of the magazines, they had the physical power to insert advertisements without the plaintiff’s consent. They knew the only price at which space in the magazines was sold and the stipulated price for exchange merchandise advertisements, and, with such knowledge, elected to use such space, and when plaintiff asks them to pay for the same they are not in a position to deny that they occupied the space upon the usual terms. They cannot rely upon their own wrong to deprive the plaintiff of the price which similar advertisements paid. If A puts upon the market a commodity at a fixed price, and B knowing the price requests the commodity for his use, or takes it without a request, he fairly becomes obligated to pay the price. A request for such an article, or the taking without request, carries with it an implied promise to pay the known market price. The referee was, therefore, right in charging the excess space used or ordered by the defendants at the rates the plaintiff uniformly received for similar space, less the amount the defendants were to receive per page under the contract.
These conclusions necessarily dispose of the second objection. If the defendants had paid or accounted to the plaintiff for the excess space which they improperly used or sold each month, the proceeds thereof, with the plaintiff’s monthly payments, would have made the payment in each month in question exceed $500. While the defendants owe the plaintiff under the contract for space, they cannot declare him in default for not paying moneys of a like amount. The various violations of the contract by the defendants had a tendency to prevent the plaintiff from obtaining advertisements which he otherwise might have obtained, and tended to and were probably designed to put the plaintiff in default, so that a forfeiture might be declared. The defendants cannot, by breach of contract, *49create a condition which naturally brings plaintiff into default and then declare that the plaintiff under the contract has forfeited all rights by reason of the default which their acts have caused.
Under their third objection the defendants contend that there is not such a mutuality of contract and remedy as to enable the plaintiff to have a specific performance of the contract (Levin v. Dietz, 194 N. Y. 376), and that .the same rule applies to injunctive relief. The contract is signed by both parties and purports to bind them alike. The plaintiff agreed to open an office, furnish as many pages of advertising as he could secure orders for and to pay the expenses incurred by him under the contract. The contract was also based upon a settlement of a controversy existing under a prior contract. It is not unilateral, but mutual, the full performance of which has been entered upon by the parties and carried out for years, and the plaintiff at all times has been in full and active performance of every obligation expressed in or fairly implied by it, and has established a valuable business thereunder. He is, therefore, in a position to ask the court during his continued performance to prevent the defendants from destroying his rights under the contract by restraining them from doing acts which by its terms they have agreed not to do. (2 Pom. Eq. Rem. § 775.) The contract does not now rest in promises. It recites that the parties of the first part have the right to sell the exclusive advertising privileges of the publications, and that the party of the second part desires to buy them, and that the party of the first part grants and sells them to the other party; it speaks of the advertising department of the magazines; under certain conditions the advertising privileges and all rights under the contract may be canceled by the party of the second part and purchased by them for one dollar.
The magazines represent a valuable business enterprise. The defendants are the actual owners and conduct the editorial and publishing part of the business. The plaintiff has the exclusive right, subject to certain reservations, to the advertising space or privileges of the magazines,- and has spent many years in developing that part of the business, and it is a valuable property right. The right to publish these magazines is a property right of the defendants, and the exclusive right to control the advertising department *50is a property right of the plaintiff. The parties, so far as the advertising department of the magazines is concerned, are conducting it upon a lrind of joint account plan. The defendants gave life and value to the advertising department by reason of the readable qualities of the magazines and the manner in which they are published. The plaintiff, having the exclusive control of the advertising department, obtains advertisers and receives the entire proceeds thereof, less the per page amount which the defendants are to receive. In many magazines the advertising department is the real revenue earner.
It is not necessary to go into refinements to determine what the exact relations of the plaintiff to the magazines are; it is sufficient to know that he has the exclusive right to the advertising space subject to the contract reservations, and that the selling of that space is his business created by the contract and his acts thereunder, and that the defendants are wrongfully interfering with his business and lessening his property rights therein. A court of equity finds a remedy adequate to every wrong where the injured party cannot obtain full redress elsewhere and where a multiplicity of suits to enforce imperfect remedies must otherwise follow. It may, without attempting to define all of the respective rights and obligations of the parties under this complicated situation, view the transaction as the defendants viewed it when they stated that they were by it selling and granting to the plaintiff the exclusive advertising privileges of the magazines, and may restrain them from doing the-acts which they have agreed not to do which interfere with the plaintiff’s right in said business. The trial court held that this is not a case for a specific performance, but that in the respects covered by the injunction the defendants might be restrained from interfering with the plaintiff’s rights under the contract. The findings of fact are fairly sustained by the evidence and the conclusions of law do not err to the prejudice of the defendants. The judgment should, therefore, be affirmed, with costs.
Sewell, J., concurred in result.
Judgment unanimously affirmed, with costs.