279 Mass. 54 | Mass. | 1932
This is a bill' in equity alleging, in substance, that on December 10, 1928, the plaintiff and the defendants entered into a written contract, a copy of which is annexed to the bill of complaint and marked “A,” whereby the plaintiff granted and assigned to the defendants his literary rights and copyrights in and to a certain literary work written by him entitled “Crime, Degeneracy and Immigration,” and agreed to pay the defendants $975 in instalments, and at times specified in said contract. It is further alleged that the defendants, in said contract, agreed to publish said entitled literary work by printing one thousand copies thereof and by employing diligently all usual and legitimate methods of advertising said work to the book trade, including the
Among other facts the defendants admit that the plaintiff has performed his part of the contract, but contend that “Even if a case is otherwise made out for rescission, the contract in this case cannot properly be rescinded, because all parties cannot be placed in statu quo.”
Upon the completion of the pleadings the case was referred to a master who duly filed a report. No objections to the report were filed by the defendants. A single objection filed by the plaintiff was later waived. The report was confirmed and a final decree was entered rescinding the contract, ordering the payment of $915 and interest, and a reassignment of the copyright, to the plaintiff. The appeal from the final
The facts found by the master which the plaintiff contends support the final decree are as follows: The defendant Badger is engaged in the business of publishing books in Boston, and has been so engaged for thirty-three years. His place of business is at number 100 Charles Street. The defendant The Gorham Press is a Massachusetts corporation with a place of business at number 100 Charles Street. “This corporation is little more than a name under which the defendant Badger does business. It has no printing press or book binding facilities.” On October 18, 1928, the defendant Badger solicited from the plaintiff the opportunity of considering, with a view to publication in book form, any manuscript the plaintiff might have. On November 19, 1928, the defendant received from the plaintiff a manuscript of a book written by the plaintiff entitled “Crime, Degeneracy and Immigration — Their Interrelations and Interreactions.” After an exchange of several letters the parties, under date of December 10, 1928, executed a written contract under seal. It was signed by the plaintiff and by both defendants. The defendants admitted that a correct copy thereof was annexed to the bill of complaint, and it is a part of the record before this court. The plaintiff charged in his bill of complaint that the defendants had a fraudulent intent merely to print the book for the plaintiff and to do no acts to promote its sale, and that the defendants further intended, from the beginning, not to perform their contract with respect to the diligent advertising and promoting of the work and putting it before the public. Respecting this charge the master found “that these allegations are not sustained . . . that there was lack of diligence on the part of the defendants . . . but . . . that it was [not] part and parcel of a scheme to defraud the plaintiff of $975.”
Among other things the contract provided that the defendants will publish one thousand copies of the plaintiff’s
It would seem to be unnecessary to describe further in detail many other acts and omissions of the defendants which the plaintiff contends are material breaches going to the essence of the contract. The contract contains no provision dealing with the time within which the defendants were obliged to perform their part of the contract. We agree with the assumption of the master and with the contention of the plaintiff that, in the circumstances disclosed in the report, it was the duty of the defendants to complete this work within such time subsequent to December 10, 1928, as might be reasonable; and accepting the finding of the master that if the defendants had used reasonable diligence the book would have been printed, bound and jacketed and the issuance of the circulars would have been completed by April 30, 1929, we are of opinion that the defendants, as matter of law, took an unreasonable time to complete the work.
It appeared at the hearing before the master, and was not disputed by the defendants, that “Badger was acting both for himself and for the defendant The Gorham Press.” The bill of complaint charged in paragraph 7 “That the defendants have refused to do any further act or acts to advance and promote the sales of the plaintiff’s said work. That the defendant, Richard G. Badger, has stated that he would make no additional effort to sell said work, although, upon information and belief, only thirty copies thereof have been sold.” In their answer the defendants “admit that they were unable to further promote the sale of the plaintiff’s work and admit the allegation that the
The plaintiff contends that “the defendants were guilty of substantial and material breaches of their contract with the plaintiff, breaches going to the root thereof,” which he summarizes as follows: “(1) They were guilty of a substantial, unreasonable, unexplained, and inexcusable delay, amounting to over five months, in printing the book, binding it, preparing jackets for it, and beginning its advertising. (2) They have at no time completed the publication of the one thousand jacketed copies called for by the contract, but have completed the publication of only two hundred fifty. (3) They were guilty of a substantial failure to use all usual and legitimate methods of advertising as required by the contract, in that they advertised in no newspapers, used no placards in book stores, and, finally, used no salesmen, the method of advertising found by the master most important of all. (4) The methods of advertising which the defendants did employ were not employed with diligence, as required by the contract, in that they sent only seven books to reviewers and only six sample copies to book stores; and the plaintiff was compelled to use his own representative, at his own expense, in Boston to have anything at all along this line accomplished. (5) The defendants utterly failed in the distribution of circulars, as required by the contract, in the usual and recognized channels of the trade and to lists of names and addresses supplied by the plaintiff, in that, among other things, they left uncircularized thirty-three thousand out of forty thousand names and addresses supplied by the plaintiff, and sent to no one at all one thousand circulars which, printed at the plaintiff’s expense, the defendants had agreed to send to members of the Chicago Bar Association.” We think this summarization is fully
Respecting the admission of the defendants to paragraph 7 of the bill of complaint, and the specific finding of the master in relation thereto, the plaintiff, supported by the argument of the defendants, contends that on January 27, 1930, the contract was a valid and subsisting one, that it imposed a continuing obligation on the defendants which they had not discharged; that at that moment “such a list furnished by the plaintiff had been not more than one quarter circularized and stood uncircularized to the extent of thirty-three thousand.” The statement of Badger speaking for himself and his codefendant, “that he was sick of it all and would do nothing further to promote sales,” was, in itself, a clear repudiation by the defendants of their obligation. The facts found by the master warranted a ruling by the court' below that the several breaches indicated in the report were of so substantial and material a nature as would constitute a defence to an action had the plaintiff not fully performed, as he did, the obligation of making payments in advance of performance by the defendants. The repudiation of the obligation of the defendants on January 27, 1930, taken in connection with the full performance by the plaintiff, gave to the plaintiff in equity a right to a return of his manuscript and to a reassignment' or surrender of the United States copyright. The breach of the contract being material in respect to the matter indicated in the report, it is plain the plaintiff was entitled to recover the money which he had paid in advance. Martin v. James Cunningham, Son & Co. 231 Mass. 280. See Williston, Contracts, § 1467.
Decree affirmed with costs.