Western Historical Co. v. Schmidt

Taylob, J. As to the first assignment of error alleged by the appellant, we are inclined to hold that the subscription of the defendant amounted to an offer to buy and pay for one of the copies of the history proposed to be published by the plaintiff, upon its delivery to him at his place of business; that such offer, when accepted by the plaintiff, bound the defendant, and if the taking of the subscription by the authorized agent of the plaintiff was not such an acceptance thereof as would bind the defendant, the subsequent tender of the book within a reasonable time upon the subscription, and before the offer to buy was withdrawn, was an acceptance of the offer to buy, and would bind the defendant from that time, if the book tendered conformed in all respects to the contract. Whether the defendant could have withdrawn his offer to buy before a tender was made, need not be determined in this case. Whether this subscription would have been supported under the statute of frauds, if the article to be delivered had been of the value of $50 or more, is not involved in this case. Upon the other question we hold that there is no competent evidence in the case sufficient to justify the court in [686] finding that the book tendered to the defendant, and presented in court, complied with the contract made by the defendant. This action is to recover upon an executory contract alleged to have been made by the defendant to purchase a book called “ A History of Northern Wisconsin.” The book was not shown to the defendant at the time he made his contract, and the. presumption is that it was not then in existence. It was to be written or compiled and published after-wards. The subscription was made on the condition that the history, when printed, published, and delivered, should conform to a prospectus shown to the defendant at the time he made his subscription. Under this contract the plaintiff cannot recover unless he shows affirmatively that the book he tendered conformed in all material matters to the description thereof given in such prospectus. There was a warranty on the part of the plaintiff that the book when delivered should conform in all material matters to the statements made in such prospectus. This proposition does not require the citation of authorities. It is elementary. We think it very evident that the case was not tried before the justice upon the theory above stated. On the part of the plaintiff it is clear that its theory of the case was that the production of the book in court, purporting to be the plaintiff’s “ History of Northern Wisconsin,” and proof that it tendered such book to the defendant, was all the evidence necessary on its part. This theory of the case is not only shown by the evidence introduced on its part, but it is also shown from the allegations of the complaint. The complaint does not allege that the book tendered • conformed in any respect to the conditions stated in the prospectus, and if it states a cause, of action at all, it does so only by a most liberal construction of its language; and it must be held that the words “ one volume of the History of Northern Wisconsin ” mean a volume of such his [687] tory published by the plaintiff, and conforming in all respects to the prospectus set out in the complaint, upon the conditions of which the defendant subscribed for the work. We are clearly of the opinion that upon a demurrer to the complaint it should be held bad, as not stating a cause of action. In the absence of such demurrer, we think the plaintiff would be entitled to give evidence of the facts necessary to make out a cause of action, no objection being made that the complaint did not state a cause of action. We quote the language of the complaint for the purpose of showing the theory upon which the case was tried by the plaintiff. It simply offered the book itself in evidence as proof of the fact that it complied with the prospectus. It is true, the witness says: “ It is a History of Northern Wisconsin,” and “ is the book for which the defendant subscribed, and is the book offered in evidence.” Nowhere in the direct evidence is there any statement that the book conforms to the prospectus in any respect. The plaintiff’s view of the case, undoubtedly, was that the book itself was the best and only evidence of the fact of its compliance with the contract. This is clear from the objections made to the question asked by the defendant, “ How do you know this to be the identical book for which this contract was given?” and the question asked the defendant, “Is this the book you subscribed for at the time you signed this subscription book?” It is urged that, because on the cross examination of the plaintiff’s witness he answered the question above stated as follows: “ Because this book corresponds with the prospectus and said contract made for the sale of the book to the defendant,” there is some evidence to sustain the judgment in favor of the plaintiff, and consequently the county court was right in affirming such judgment. It will be seen that the witness does not testify that he had ever read or examined the contents of the book for the purpose of ascertaining whether it corresponded with [688] the prospectus, and so did not show himself competent to answer intelligently the question asked. And, we think, it is but just to the witness to hold that he simply meant by this answer that the book corresponded with the prospectus and contract, because it purported to be a History of Northern Wisconsin, published by the plaintiff company, and not because he had made any examination of the same for the purpose of ascertaining the fact that in its binding, printing, illustrations, and general contents it corresponded with the prospectus. It is evident that the plaintiff did not come into court supposing it was necessary for it to prove affirmatively that the history published and tendered was substantially such as the prospectus called for, except only so far as the production of the book itself would prove that fact, and it is quite evident that the answer of its agent above quoted was made in that view of the case, and not from such knowledge of the fact as would render him competent to speak intelligently on the subject. In our view of the case, all the evidence the plaintiff made that the book tendered complied with the contract of purchase made by the defendant was this: The agent of the plaintiff produces in court a book which purports to be a History of Northern Wisconsin, published by the plaintiff,.testifies that before suit brought he tendered that book to the defendant and he refused to accept and pay for it, and further testifies, in general terms, that it is the book the defendant subscribed for, and demands judgment. This method of proving his case would compel the court to act upon its own examination of the book to determine whether the plaintiff had complied with the contract on its part. This is not a duty required of the court. It was the plaintiff’s duty to make a clear case upon affirmative evidence that it had complied with the contract on its part before it could demand pay for the book tendered. Any other rule of law would leave a subscriber for a book, to be published and delivered [689] at a future day, at the mercy of the publisher. If publishers desire to sell their works in anticipation, of their publication, and upon the strength of representations made in a prospectus furnished the subscriber at the time, and as an inducement to his subscription, it is manifestly just that the subscriber ought not to be compelled to accept the book, when published and tendered, unless it conforms in every material matter to the representations made in such prospectus. And if the publisher seeks to recover damages for the refusal of a subscriber to accept and pay for the same, he must show by affirmative evidence that the book tendered complies with such representations. There was no evidence of that fact in this case, and consequently the plaintiff should have been nonsuited on motion of the defendant. By the Court.- — The judgment of the county court is reversed, and the cause remanded with directions to that court to reverse the judgment of the justice.