Burr v. Crompton

Devens, J. The contracts in these several cases, made between the plaintiffs and the defendants, were in effect on the part of the plaintiffs to advertise the business of the defendants respectively in a certain book to be published and sold by them, and on the part of the defendants to pay therefor at the rate of two cents for each copy of the book so sold. As all the contracts contemplate that the advertisements of the defendants are to be distributed by means of a book published and sold by subscription, it was competent for the plaintiffs to show in what manner, according to the usage of the trade, such works were published and sold and the business in relation thereto conducted, and thus prove that the method adopted by them was in conformity with the usual mode which both parties must have intended by their contract. They were further entitled to show that in conformity with such usage agents were employed by them to canvass the country for subscriptions, that orders were sent by such agents, which orders were filled by the plaintiffs by placing the books in the hands of carriers to be transmitted in accordance with them, and that such orders were accompanied by the money, except when the books were directed to be sent to be paid for on delivery, on which orders payment had subsequently been made. As from the mode in which the business was to be conducted, according to the evidence of the plaintiffs, the defendants must have known that the publisher was not brought in immediate contact with the subscriber, and did not deliver the book to him personally, the books of account kept by the plaintiffs with such agents, and the recollection of witnesses as refreshed by them, .(which evidence was admitted by the auditor,) were competent -to prove a business conducted according to the usage of the trade, .the transmission of the books in answer to orders on them by . agents, and the payment therefor, which would justify a finding for the plaintiffs. Although this evidence fails to show directly that the books were delivered into the hands of the individual subscribers, it is the only evidence which is reasonable and practicable in ascertaining the liability of the defendants. As be [503] tween them and the plaintiffs, it should be considered that there has been a sale and delivery of the books when the plaintiffs prove that they have done everything to place them in the hands of individual subscribers, which the contract contemplated that the publisher should do. Nor would the evidence by which the defendants undertook to control that of the plaintiffs justify the jury in finding that the mode adopted was not a sale by subscription within the terms of the contract. The mode of delivery testified to by the defendants’ witness related to subscription books published in numbers, and his testimony recognizes that many of the trade supply the books to canvassers as the plaintiffs did in the present case where the work is a single volume only. The first and fourth prayers of defendants were therefore rightly refused. It appears, by the plaintiffs’ evidence, that a considerable number of books were sold to editors, and that the books so sold were paid for in advertising. This transaction was not, however, such a sale as was intended by the contracts, but an exchange for the commodity of the editor. The sale of a book by subscription being by personal solicitation of individuals through canvassers, those advertising might expect that the book would thus reach most directly those who would be interested in what was there advertised, and who might be those not usually resorting to bookstores. Whether the books distributed to editors would equally reach those whom by means of the subscription the advertisers were endeavoring to influence, we cannot determine. The language of the written contracts varies: in two of the cases the agreement is to pay “ for each and every copy of the work sold and delivered to agents and others,” and in the other two it is to pay “ for each and every copy of said work sold by said Burr & Co.; ” but each contract is a bargain in reference to sales by subscription only, and the copies so delivered to editors cannot be deemed such sales. While, however, the defendants are not to be held hable on account of the sales to editors, the fact that such were made should not prevent the plaintiffs from recovery upon those actually made by subscription. There is no stipulation in the contracts, expressly forbidding the plaintiffs from disposing of the [504] book otherwise than by subscription, nor was it shown to be against any usage of the trade; and such a disposition of the books as would enable the plaintiffs, in the usual course of their business, to obtain by means of them the advertising which they desired, is not necessarily inconsistent with the objects intended to be attained by sales by subscription. Indeed it may have been a positive advantage to the defendants to have the books containing their advertisements thus disposed of, they being held to no payment therefor. ' The second prayer of the defendants was therefore rightly granted by the presiding judge, and the third rightly refused. The instruction, in answer to the fifth prayer of the defendants, that the payments having been made by them generally on account, and in ignorance that the books sold to editors were included in the accounts rendered on which payments had been made, the defendants were entitled to apply such payments in the present suits towards sums due for books actually sold t'a subscribers, was also rightly given. The money thus paid was paid under a mistake of fact which may in this way be corrected. Exceptions overruled.