4 N.Y.S. 61 | N.Y. Sup. Ct. | 1889
This is an action to recover damages for an alleged breach of contract in regard to the publication of a book of which the plaintiff was author. On a previous appeal we held that, inasmuch as the written agreement did not purport to cover the entire contract between the parties, the omission might be supplied by oral testimony. Bean v. Carleton, 6 N. Y. St. Rep. 641. On the trial which resulted in the judgment now appealed from, such paroi testimony was admitted. The court clearly erred, however, in receiving the evidence of Mr. George H. Putnam, a publisher, to the effect that the written portion of the agreement was an unusual contract between a publisher and an author. Ho case is cited as authority for the admission of such evidence, nor do we know of any rule of law which justifies its reception. In Carleson v. Navigation Co., 109 N. Y. 359, 16 N. E. Rep. 546, a Swedish peasant woman sued to recover the value of her trunk and its contents, lost on the defendant’s line of steamers, and evidence was offered for the defense tending to show that the usual value of the baggage of such passengers was less than that claimed to have been lost by the plaintiff. The trial court refused to admit the evidence, and the ruling was sustained. This decision is adverse to the respondent upon the points under consideration. It is suggested in the present case that proof of the unusual character of the written agreement tends to support the testimony of the plaintiff that the writing did not
The testimony introduced in behalf of the plaintiff as to the cost of printing such a book as hers at the time it was printed by the defendants was properly received. Cornell v. Markham, 19 Hun, 275. It was relevant to the disputed question whether the memorandum embodied the entire agreement between the parties; and, as in the case cited, it tended to prove that the bargain as testified to on the other side was unreasonable.
The appellants insist that the complaint should have been dismissed for the plaintiff’s failure to prove any damages at all, or that, in any event, the jury should have rendered a verdict for nominal damages only. It is not necessary to express any opinion on these points, as we must reverse the judgment on account of the erroneous rulings already considered, and it may very well be that the plaintiff on another trial will be able to offer more certain and satisfactory proof of the damages she sustained. The difficulties of fairly estimating the injury done to an unknown author by the breach of a contract to publish that author’s first book are manifestly very great, but they are not necessarily insuperable; and “a person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain. ” Wakeman v. Manufacturing Co., 101 N. Y. 205, 209, 4 N. E. Rep. 264. Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.