| Mass. | Oct 19, 1893
Lead Opinion
The first question is whether the contract is, as thé defendant contends, illegal on its face. The words relied on to show that it is are as follows: “ The party of the first part agrees to accept full responsibility of all matter contained in said work, and to defend at his own cost any suits which may be brought against the party of the second part for publishing any statements contained in said work, and to pay all costs and damages arising from said suits.” The presiding justice found that the contract “ was made without illegal intent, unless and except so far as the words used import one as matter of law.” We think that the contract does not import one as matter of law. The parties were contracting respecting a book which was not in existence, but was to be written. There was nothing in the character of the proposed work which naturally or necessarily involved the publication of scandalous or libellous matter, as was the case, for instance, in Shackell v. Rosier, 2 Bing. N. C. 634, referred to by the defendant. At the same time it was not impossible that in spite of due care and good faith, on the part of the author and publisher the proposed book might contain matter which others perhaps would deem libellous. In such a case it would be no more unlawful for the parties to provide that the author should save the publisher harmless from all costs and damages to which he might be subjected by reason of the publication of the book, than it would be for a patentee to agree with his licensee that he would protect him against all costs and damages to which he might be subjected in consequence of using the patent to which the license applied. The case stands on grounds entirely different from those on which it would stand if it appeared that the parties intended to publish or contemplated the publication of libellous matter. There is nothing in the agreement fairly to show that such was their purpose. The most that can be said is, that though there was no intention to write or publish, nor any contemplation of writing or publishing, libellous matter on the part of the author or publisher, it might turn out after
Moreover, it was possible in this case that the book might not contain libellous matter, although libel suits against the publisher might grow out of it. It would be hard to say in such event that the publisher who might have published the book without any libellous purpose, and in the full belief that it contained nothing libellous, could not recover of the author under this clause in the contract the costs and damages to which he had been put by such suits. In order, we think, to render the contract unlawful, it should appear that there was an intention on the part of the author and publisher to write and publish libellous matter, or that the author proposed, with the knowledge and acquiescence of the publisher, to write libellous matter, or that the contract on its face provided for or promoted an illegal act. We do not think the clause in question is fairly susceptible of either construction. Fletcher v. Harcot, Hutton, 55. Battersey’s case, Winch, 48. Betts v. Gibbins, 2 Ad. & El. 57. Adamson v. Jarvis, 4 Bing. 66. Waugh v. Morris, L. R. 8 Q. B. 202. Pearce v. Brooks, L. R. 1 Ex. 213. Cannan v. Bryce, 3 B. & Ald. 179. Graves v. Johnson, 156 Mass. 211" court="Mass." date_filed="1892-05-06" href="https://app.midpage.ai/document/graves-v-johnson-6424172?utm_source=webapp" opinion_id="6424172">156 Mass. 211.
The defendant contends, in the next place, that he was justified in his refusal to go on with the contract, because of his doubts as to the solvency of the plaintiff corporation, and because of the disgrace attaching to its name in consequence of the conduct of Jewett.
The first ground thus taken would seem to be disposed of by the recent eases of Hobbs v. Columbia Falls Brick Co. 157 Mass. 109" court="Mass." date_filed="1892-09-07" href="https://app.midpage.ai/document/hobbs-v-columbia-falls-brick-co-6424298?utm_source=webapp" opinion_id="6424298">157 Mass. 109, and need not therefore be further considered.
Regarding the second ground, it is to be observed that the contract was not made with Jewett personally, but with the corporation which bore his name. Moreover, Jewett has 'fled, and it fairly may be presumed that his place as president and
Concurrence Opinion
I am unable to concur in the opinion of the majority of the court that the contract sought to be enforced is a valid contract. The contract provides for the publication of a work to contain -the author’s autobiography, “ or reminiscences of his life, and the acts and doings of other public men, so far as they may seem to him to elucidate the history of the country or public affairs.” It is in reference to a work of this character that the defendant agrees to do three things: first, “ to accept full responsibility of all matters contained in said work”; secondly, .“ to defend at his own cost any suits which may be brought against the party of the second part for publishing any statements contained in said work ”; and thirdly, “ to pay all costs and damages arising from said suits.” The obligation of the defendant is not limited to paying legal expenses, but includes costs and damages recovered against the publisher “ for publishing any statements contained in said work.” While it is