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Second Department, March, 1910.

[Vol. 137. A contract required the plaintiff to write for the defe:dant a series of text books upon five specific branches of the law, and to write such other books for the series as the defendant might direct. The manuscript was to be delivered in installments for the purpose of obtaining advanced payments on account of the completed book of which the installments were parts, but such delivery was not to be considered a delivery of the book so as to entitle the plaintiff to payment as upon acceptance. It was agreed that the plaintiff should take the copyright in his own name and assign the same to the defendant who was to have the sole privilege of publishing and selling the book during the copy. right term. The defendant agreed to pay the plaintiff two dollars per page on each book accepted, to be treated as payments on account against books previously completed and accepted, and the plaintiff was entitled to receive one sixth of the net receipts from the combined sale of all books that be wrote until such time as he had been paid four dollars per page in addition, making in all six dollars per page, after which the plaintiff was to have no right in the books, or in the receipts from the sale thereof. The plaintiff prepared and delivered the manuscript of one of the books and part of the manuscript of another, receiving two dollars per page, and then refused to continue under the contract because the defendant had permitted his publishing company, a corporation, to take the copyright of the book in its own name. In an action to recover an additional four dollars per page on the theory that the contract was divisible and not entire, Held, that the contract was entire, not divisible, so that the plaintiff in order to recover must show a breach thereof by the defendant which prevented

performance by the plaintiff'; That the defendant by causing the copyright to be taken in the name of his

corporation so as to deprive the plaintiff of the protection accorded by the copyright laws, made a breach of the contract which was not waived by the

fact that the plaintiff gave him an opportunity to correct the error; That the plaintiff was not guilty of a breach of contract by reason of the fact

that, although he had promised not to write for others, ho did write an article

without remuneration to aid a sick friend; That although the plaintiff was not entitled to equitable relief by way of specific performance in that he did not tender performance on his part, but refused the same, the court in the absence of objection by the defendant that the case was improperly laid in equity could give money damages to be measured by the addi. tioval payments required by the contract although the defendant had not earned the net profits from which the additional payment was to be made. This, because his failure to earn such profits was due to his own breach of the contract.

APPEAL by the defendant, John B. West, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

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App. Div.]

Second Department, March, 1910.
11. V. Rutherford, for the appellant.
William B. Hale, for the respondent.
THOMAS, J.:

Clark, a book writer, agreed in writing with West to prepare a “series of text books for law students on the following subjects: * * * Corporations, Torts, Bailments, Agency, and Pleading and Practice, * * * and also write and prepare such other books for said series as the second party may direct," with anthority in West to direct the order of preparation of the books in the series, and to substitute other subjects for any of those nained. Clark agreed, among other things, to prepare “at the rate of not less than 125 pages each month," and to deliver to West the manuscript of completed chapters at the end of each month “for the purpose of obtaining advance payments on account of the completed book of which said chapters are parts only,” but it was stipulated “such delivery is in nowise the delivery of the book, entitling the first party to payments as such upon acceptance of same." Clark further agreed that he would “defend the copyright of the same against all adverse claims," and that “the copyright of all books prepared” by him “shall be taken ont in his name, and immediately thereafter assigned by him to the second party, subject to the conditions of this contract.” Clark further agreed that after publication of any edition of " said works, and so long as he has an interest in the sales of saine," to collect and prepare new cases and other new matter for addition “as often as the second party shall desire to publish a new edition.” Clark further grants to West " the sole and exclusive privilege and license of printing, publishing, and selling, or otherwise disposing of said works and all revisions of the saine during the continuance of any copyright or renewals thereof, or his interest in the same, and also the right to nse any part of the inaterial in said works in local books, and in monographıs, articles, notes, or annotations, or books or other legal topics or on subdivisions of the particular subjects, prior to same becoming the exclusive property of said second party.” West agreed “ that when the manuscript of an entire work has been all delivered to him, he will proceed to examine the same, and he will accept the same within thirty days after the receipt of the same,"

Second Department, March, 1910.

(Vol. 137. or return same for correction. The contract provides : “ the second party agrees to pay to the first party $2 per page, * * * on each book prepared by the first party under this contract and accepted by the second party, and if said first party abstains from the use of intoxicating liquor and otherwise fulfills his agreements as hereinbefore set forth, he shall be paid an additional $4 per page in manner hereinafter stated. * * * When a completed clapter or completed chapters amounting to not less than 125 pages, to be delivered to the second party each month are so delivered, the second party shall pay to the first party $2 per page. But he shall not be required to pay more than $250 in any one month prior to the acceptance by liim of a completed book. These advance payments are to be made as soon as the completed chapters are delivered as above stated, but if, after such delivery and payment, the manuscript shall not be regarded by the second party as satisfactory, no further payment shall be made until the first party shall have made the same satisfactory to the second party. All payments on account of parts of books are to be treated as payments on account, against books previously completed and accepted. They are for accommodation of first party only. After the publication of any book or books prepared by the first party under this contract, he shail at the end of every six months be entitled to receive, and the second party agrees to pay him, an amonut equal to one-sixth of the net receipts from the combined sales of all books which shall have been prepared by the said first party and published by the said second party under this contract, less any and all payments previously made said first party and all money then due the second party from the first party, until the amount of $6 per page of each book shall liave been paid, after which the first party shall have no right, title or interest in said books or the receipts from the sales thereof. But no accounting shall be made for any copies of said works that may be lost, stolen or destroyed by fire or otherwise, or upon any copies disposed of as a means of advertising and pushing the sale of said works, or upon five copies of each edition to be given to the first party. * * * The second party also agrees that if and when he accepts the manuscript of any book prepared by the first party under this contract, he will proceed at once to print and publish the same in such forin as he may deem best, and after its

App. Div.] Second Department, March, 1910. publication will advertise and push its sale to the best oť his ability, so long as anything may be due the first party under the terms of this contract."

Clark prepared a general work on Corporations, which was in substitution of the smaller work first contemplated for the students' series, and also 400 pages of Torts, when he refused to do further work under the contract for the reason given that West had permitted his publishing company to take in its name the copyright of Corporations, and refused and was unable to reinedy this breach of the contract.

The plaintiff claims that the contract is divisible, so that the first cause of action relating to Corporations is independent of his agreement to prepare other books. The same claim is tendered in support of the second cause of action, which is for conversion of the manuscript of Torts. If this were true, Clark could recover for any failure to pay the two dollars per page for Corporations which was published. But Clark did not recover for the two dollars per page, as that had been paid, but for the four dollars per page in addition, the payment of which was conditioned on his faithful performance of the "other conditions of this contract,” and the fulfill. ment of his agreements, and upon receipt by West of net receipts, one-sixth whereof would measure additional payments to Clark. But the complaint alleges accrued net receipts, and demands judgment for $13,876 and interest, or in the alternative that defendant account, and vest a valid copyright in said treatise on Corporations in the plaintiff, or in the event that a valid copyright “cannot be, or is not, forthwith vested in the plaintiff,” that he have judgment for the sums named. The court directed recovery on Corporations for such amount, which is based entirely on the four dollars per page so promised conditionally, without evidence of the receipt of adequate net profits. So the questions as to this first cause of action are, has it a valid existence; second, is the recovery justified? The plaintiff seeks to sustain the first cause of action upon the principal ground, as stated, that the contract is divisible. The defendant asserts that it cannot exist as the contract is entire, and that there is no existing breach of it on the part of West. The plaintiff asserts its divisibility, and the defendant affirms its entirety, as a matter of law (Tipton v. Feitner, 20 N. Y. 423; Second Department, March, 1910.

[Vol. 137. Central New York Tel. & Tel. Co. v. Averill, 58 Misc. Rep. 59), upon rules of interpretation to which attention will be specifically called. All rules of interpretation of a contract here involved are aids to one purpose, and that is to discover the intention of the parties. One element of a contract may be more helpful than another to indicate intention. To certain types of agreements the courts have ascribed greater relative potency, so that in the absence of other overmastering terms they by their own force establish intention. But no rule is per se determinative. The intention of the parties fixes the divisibility or entirety of the contract (Tipton v. Feitner, 20 N. Y. 423, 425, 431; Glenn v. Rossler, 156 id. 161, 168 ; Wald's Pollock Cont. [3d ed.] 320; Slater v. Emerson, 19 How. [U. S.] 221) gathered from its several provisions (Tipton v. Feitner, supra; Toher v. Schaefer, 45 Misc. Rep. 618) and the circumstances surrounding the agreement (Skillman Hardware Co. v. Davis, 53 N. J. L. 144, 147). Special tests must yield to overbalancing evidences of intention. Divisibility of subjects and differences in their nature are not conclusive tests. (Shinn v. Bodine, 60 Penn. St. 182, 185; Wald's Pollock Cont. [3d ed.] 317; Providence Coal Co. v. Coxe Bros. & Co., 19 R. I. 380.) Stipulations that several acts be done at different times are strong in interpretative suggestion of a divisible contract unless the consideration be entire (Badger v. Titcomb, 15 Pick. [Mass.] 409), but such terms do not exclude a contrary conclusion. (Slater v. Emerson, 19 IIow. [U. S.] 224, 238.) So as to stipulations to deliver articles varying in size, price and at different times (Catlin v. Tobias, 26 N. Y. 217; approved, People ex rel. Cossey v. Grout, 179 id. 417), and so as to modes of measuring the price, as by the bushel, ton or pound (Shinn v. Bodine, 60 Penn. St. 185), although in the absence of stronger adverse evidences of intention sales of different articles deliverable in installınents are divisible (Pope v. Porter, 102 N. Y. 366; Pierson v. Crooks, 115 id. 539), but the court recognized the supremacy of intention (p. 555). The sale of several distinct items of property is entire when the promise by the purchaser is conditioned on entire performance by the vendor, but in the absence of such condition, where the price to be paid is apportioned to each item in terms or by implication of law, the contract is divisible (Ming v. Corbin, 142 N. Y. 334), but the court sought the intention of the parties (p. 341) and sustained

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