value of plaintiff's said manuscripts in Torts delivered to the defendant amounting to 400 pages, and the literary property therein was and is the sum of $2,400." The court concluded:

(5) That the provisions of said contract providing for the payment by defendant of said sum of $6 per page only when and as sales of the book shall have been made in sufficient amount constitute a condition for the benefit of defendant which he might waive. (6) That defendant, by causing the copyright of Corporations to be taken out in the name of the Keefe-Davidson Company, waived the condition that said $6 per page should be payable only when and as sufficient sales should have been made, and defendant became at once liable to plaintiff for the full amount of $6 per page of Corporations, less all amounts previously paid or advanced to plaintiff. * (10) That the contract between the parties is severable as to each of the different books specified therein, so that full performance by the plaintiff in respect to the first book, Corporations, entitles him to the stipulated compensation therefor. (11) That plaintiff's right to recover under the contract the stipulated compensation for the work on Corporations does not depend upon defendant's breach in causing the copyright of Corporations to be entered in the name of Keefe-Davidson Law Book Company.

* *

A judgment for $13,876 with interest upon the first cause of action is directed, and for $1,600 damages upon the second cause of action. There is evidence to sustain the finding as to Torts, for the plaintiff testified on crossexamination that his services on that work were worth $6 per day. This evidence was not given respecting Cor- Page 391. porations and reflects faintly, if at all, the value of plaintiff's services respecting that work. But the complaint and finding as to Corporations do not touch the value of plaintiff's services thereon. The complaint relates to the value of the copyright, and the finding to the contract price. But as the contract is made a part of the complaint, the finding and pleading may be reconciled. This finding must rest on the terms of the contract. But the contract fixes the price at an "advance payment of $2 per page; the balance being contingent, among other things, upon publication of the books and returns from sales." (Clark v. West, 193 N. Y., 349; 86 N. E., 1.)

Plaintiff contends that defendant's breach converted a contingent into an absolute obligation to pay. It has been concluded that the defendant was guilty of a breach, and that plaintiff could refuse to go on with the work. Defendant's breach made performance impossible according to the terms of the contract. The additional $4 per

page could not be earned as the contract contemplated, because the defendant had disorganized the contractual rights. Hence the plaintiff could sue for the additional $4 per page, and defendant could not gainsay the demand by the plea that the work contemplated in the contract had not earned the additional amount or any part thereof. The defendant could not violate his contract and insist that plaintiff fulfill to earn his compensation. The arrangement was not to give the defendant credit. It was to let the earnings of the books measure the payment. But such earnings were to be in accordance with the contract fulfilled and not broken by defendant. When a party breaks his contract in a respect that affects the time or manner of his promised payment, he must pay irrespective of the advantage secured to him. (Jones v. Judd, 4 N. Y., 412, 414; Nichols v. Scranton Steel Co., 137 N. Y., 471, 33 N. E., 561; Kokomo Strawboard Co. v. Inman, 134 N. Y., 92, 31 N. E., 248.) If this be true with reference to mere occasions of payment, it should be equally true respecting a payment depending upon the promisor earning from the sale of the product of the promisee's services. The plaintiff was not obliged to fulfill on his part a contract broken on the defendant's part before he could recover the compensation which the contract contemplated. (Wharton & Co. v. Winch, 140 N. Y., 287, 35 N. E., 589.) The defendant took unconditionally a copyright which he by right could take only conditionally A party entitled to earn a sum payable before compulsory payment may not distort the contract by such breach, and thereupon insist that the requisite sum has not been earned because the other party has refused to continue the work. What the offending party defeats should in this instance be regarded as done.

The judgment should be affirmed with costs. All

concur.

[122 New York Supplement, pp. 380-391; 137 Appellate Division Reports, pp. 23-38.]

ON APPEAL.

Clark v. West, Mar. 14, 1911.

[Memorandum Decision.]

Clark, respondent, v. West, appellant.

peals of New York. March 14, 1911.)

(Court of ApAppeal, by per

mission, from a judgment of the Appellate Division of

the Supreme Court in the Second Judicial Department (137 App. Div. 23, 122 N. Y. Supp. 380), entered April 6, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at special term in an action on contract and for an accounting. (See also 125 App. Div. 654, 110 N. Y. Supp. 110; 138 App. Div. 922, 123 N. Y. Supp. 1111.) William H. Oppenheimer and H. V. Rutherford for appellant. William B. Hale for respondent.

Per curiam: Judgment affirmed, with costs, without passing upon the question whether the contract was entire or severable.

Cullen, C. J., and Gray, Vann, Werner, Willard Bartlett, and Chase, JJ., concur. Haight, J., absent.

[95 Northeastern Reporter, pp. 1125-1126; 201 New York Reports, pp. 569–570.]

CLEMENS v. PRESS PUB. CO.

(Supreme Court, Appellate Term. April 8, 1910.)

LITERARY PROPERTY-TRANSFER-RIGHTS OF PARTIES.

Where the writer of a story submitted it to a publisher, Clemens v. Press Pub Co., and it was accepted, he was entitled to the agreed price, Apr. 8, 1910. though he subsequently refused to consent to its publication, except over his name.

Lehman, J., dissenting.

Appeal from municipal court, borough of Manhattan, first district.

Action by William M. Clemens against the Press Publishing Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded.

Argued before Seabury, Lehman, and Gavegan, JJ. Wilcox & Brodek (Charles A. Brodek, of counsel), for appellant.

E. C. Crowley, for respondent.

GAVEGAN, J. The action was to recover $200 as the agreed price for a manuscript sold and delivered by the plaintiff, an author, to the defendant, a publisher. On August 3, 1909, the plaintiff called at the office of the defendant and offered for sale the manuscript of a story Page 207. relating to a mysterious murder which had occurred a short time before. After some parleying the defendant, through its acting managing editor, agreed to take the

story, provided it were reduced in length, to pay therefor the sum of $200, and also to deliver to the plaintiff 25 galley-proof copies for the use of the plaintiff in disposing of out-of-town rights therein to a syndicate of Western newspapers. Thereafter the plaintiff reduced the length of the story. Then a question arose as to whether the defendant would publish the story in its newspaper under the plaintiff's name, and other interviews were had between the plaintiff and the defendant's agents, from which it appears the defendant refused to publish plaintiff's name with the story, and plaintiff objected to its publication without his name. The testimony as to what transpired at these subsequent interviews, however, was entirely irrelevant and immaterial.

In view of the fact that at the first interview on August 3, 1909, there was a sale and delivery of manuscript by the plaintiff to the defendant, under which title vested in the latter, nothing remained to be done but for the defendant to carry out its promise to pay the purchase price to the plaintiff. Title to the manuscript having passed by the completed contract made on August 3, 1909, the defendant was not obligated to publish it at all, nor could plaintiff compel or prevent its publication, with or without his name. The objections, refusals, and wishes of the plaintiff after parting with the title in the property may betray the eccentricities of the author; but they have no greater weight in law than the wishes of a stranger to the transaction after it was consummated.

It appears that the 25 galley-proof copies of the manuscript, constituting a part of the consideration, were delivered by the defendant to the plaintiff after these interviews in which the objections and refusals of the parties regarding the appearance of the plaintiff's name were discussed, and that when delivered they contained the name of the plaintiff in the headlines of the story. Plaintiff never returned these galley-proof copies to the defendant, and the defendant retained possession of the manuscript, which should dispose of the respondent's point that there was a rescission, a retention of any part of that which was received upon the contract being incompatible with its rescission. (Cobb v. Hatfield, 46 N. Y. 533; Francis v. N. Y., etc., R. Co., 108 N. Y. 93, 15 N. E. 192; Cohen v. Ellis, 52 Hun, 133, 5 N. Y. Supp. 133.)

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

SEABURY, J. (concurring). Even the matter of fact attitude of the law does not require us to consider the sale of the rights to a literary production in the same way that we would consider the sale of a barrel of pork. Contracts are to be so construed as to give effect to the intention of the parties. The man who sells a barrel of pork to another may pocket the purchase price and retain no further interest in what becomes of the pork. While an author may write to earn his living and may sell his literary productions, yet the purchaser, in the absence of a contract which permits him so to do, can not make as free a use of it as he could of the pork which he purchased. The rights of the parties are to be determined primarily by the contract which they make, and the interpretation of the contract is for the court. If the intent of the parties was that the defendant should purchase the rights to the literary property and publish it, the author is entitled not only to be paid for his work but to have it published in the manner in which he wrote it. The purchaser can not garble it or put it out under another name than the author's, nor can he omit altogether the name of the author, unless his contract with the latter permits him so to do.

The position of an author is somewhat akin to that of an actor. The fact that he is permitted to have his work published under his name or to perform before the public necessarily affects his reputation and standing and thus impairs or increases his future earning capacity. As I interpret the contract made between these parties, their intent was that the plaintiff should sell his work to the defendant, and the defendant was to publish it under the author's name. The action of the parties indicates the interpretation which they placed upon it. When the plaintiff presented his story to the defendant it contained his name, and the defendant offered him $200 for it if he would reduce it to 20,000 words. Plaintiff accepted the offer, reduced the story as requested, and returned it to the defendant with his name upon it. The defendant furnished the plaintiff with 25 galley proofs of the story, and it is significant that in the proofs it had the plaintiff's name printed upon it. These circumstances show that, as the parties themselves interpreted the contract, it required the publication of the author's name. The plaintiff proved his case. He had the right to insist that the story should not be published, except under his

Page 208.