The plaintiff accepted in writing the defendant’s order to place his advertisement upon a theatre curtain for a definite period. It now seeks to hold the.defendant liable for the amount he agreed to pay during the whole term in spite of'the fact that thereafter the defendant cancelled his order. There is no question but that the plaintiff is entitled to payment of the contract price for the period it performed; the sole question involved in this appeal is whether it can enforce payment as provided in the order after the order was cancelled. The order expressly provides that it is not subject to cancellation but one party cannot bind another party to the performance of a contract which is not mutual in its terms and the case therefore resolves itself into the question of whether or not this contract was mutual. The defendant under the terms_ of the order agreed to pay for the placing of- his advertisement the sum of two dollars per week for a definite period and the acceptance of his order for such time as the theatre is open would ordinarily imply, an agreement by the plaintiff to place the advertisement during that period. The order itself, however, contains the clause that “ credit is to be given for each entire week advertisement is not shown,” and I can see no other meaning- of this clause than that if the plaintiff does not perform in any week, the defendant need not pay for that week. If that is the proper construction, then the plaintiff * is not obligated to perform except when it pleases to do so, for the penalty prescribed is merely non-payment for services. not rendered. It seems to me quite immaterial that the contract by its terms provides for an absolute obligation on the part of the defendant; the question in this case is only whether the obligation is enforcible and, in the absence of a binding obligation to perform on the part of the plaintiff, the defendant’s obligation is not enforcible.
Judgment should be affirmed, with costs.
Judgment modified, and as modified affirmed, with costs.