If an ad is posted, you have to pay for it.  That’s the lesson of Superior Outdoor Advertising Company v Snadon.  Here are the facts.

• Gary Snadon dba Shepherd of the Hill Historical Society (“Shepherd of the Hills”) entered into a three year contract to rent 4 billboards from Superior Outdoor Advertising (“Superior”).
• The contract provided that if monthly payments were more than 60 days delinquent the entire contract was due and Superior would have the right to relet the signs.  Reletting would not reduce the amount due under the contract.
• The four billboard ads were posted.
• Superior got in a dispute with one of its landlord and was denied access to one of the signs although the billboard ad continued to be posted.
• 9 months into the contract Shepherd of the Hills defaulted.
• Superior filed suit for the contract amount and proceeded to relet two of the signs.
• Shepherd of the Hills argued that Superior had repudiated the contract because it was unable to furnish quiet enjoyment of a material part of its signs due to the landlord dispute.  Shepard of the Hills also argued that any amounts due under the contract should be reduced because two of the signs had been relet.
• A local court and appeals court denied Shepherd’s claims.  The court found that although there was evidence that Superior was in a landlord dispute, there was no evidence that the dispute interfered with the use or enjoyment of the Sign.  In fact Shepherd’s ad continued to appear on the sign even while the landlord dispute was going on.
• The courts also declined to adjust damages.  The court noted that as of the time of the trial the expense of removing the advertising and installing new advertising had more than offset any reletting rent income.  the courts also noted that Shepherd of the Hills  “cites no authority for the proposition that it is entitled to credit for future payments which have not been and may never be, received and does not explain why such authority is not available.”

Insider’s take:  A client can’t cite a landlord dispute as an excuse for not paying you if a billboard ad is showing.  Courts also upheld entire contract due on default language.

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