Barrie v. King

Mr. Presiding Justice Waterman delivered the opinion of the court. The contract subscribed by Mrs. Adams provided that the twenty volumes were to be delivered at the rate of one volume per month as issued, and that issue was to begin in January, 1898. As this was but one of a large number of similar contracts for the same work, obtained from time to time by the appellants, it would seem that when the contract under consideration was made, March 5, 1898, that at least two volumes of the work should, at the date of the contract, have been ready for delivery, although there is no direct evidence that such was the case; but under the terms of the contract one volume per month was to be delivered upon each month succeeding March, 1898, whereas there was no tender of any of the volumes until May, 1899, some fourteen months after the making of the contract. According to the testimony -of Mr. Alexander Barrie, a witness for the plaintiffs, Mrs. Adams refused to carry out her contract about the 16th day of January, 1899. If such be the case, appellants were excused from preparing or tendering any volumes subsequent to that date, but no sufficient excuse was shown for the failure to deliver any volumes during the months prior thereto. When the books were tendered there was upon each of the volumes the monogram of Mrs. McGregor Adams. Mr. Alexander Barrie, testifying for the plaintiff, said : “ I explain the depreciation in the value of the books this way: They were bound in a special color, and each book had stamped on it the monogram of Mrs. Adams. No other person would want a book with another person’s monogram, and in uncompleted state. We have never yet, since we have been in business, found a purchaser for books already bound bearing a monogram.” The placing of a monogram upon each of the volumes was beyond and in violation of the contract. The contract no more provided for the placing of Mrs. Adams’ monogram thereon than it did for the monogram of the king of England or any other royal personage. Limited editions, such as this was, are sometimes purchased with a view to profit that may be made by demand for, or by a rise in value of such edition after the limited number published, have been sold. It is manifest that if such edition contained the monogram of an individual, its value for the purpose of sale would be lessened, especially as, upon being offered for sale, such books would appear to be second-hand. It may be argued that the monogram could not detract from the intrinsic value of the books, and was not a material departure from the contract. Books printed upon Japanese vellum paper, an edition consisting of twenty volumes, sold at $17.50 per volume, are not purchased for the sole purpose of reading that contained therein, or having them on hand as works of reference. They are purchased largely because of the elegance of the material put into them, the artistic and handsome manner in which they are brought out, so that they are things of beauty. One keeps them as an adornment of his home, things to gratify his taste, and a delight to look upon. Purchasing such books at such a price, Mrs. Adams was entitled to have them entirely in accordance with her contract. If it were stipulated that the cover of the binding should bé red, appellants were not at liberty to make it blue; nor to so change the color, although blue might be considered by artists in better taste and the volumes more salable. Mrs. Adams may have desired to present the books to some one or to sell them. Whatever may have been her motive for agreeing to purchase this work, it was the duty of appellants to comply with the contract, and not to depart therefrom in a matter as material as was the placing of her monogram upon each volume. Appellants asked to have the following instruction given: “ You are instructed, as a matter of law, that in order to prevent one from completing a contract that he is at work upon for another,it is not necessary that there should be an active physical interference with the work that is being done by the one doing it. Any act upon the part of the party for whom the work is being done, clearly indicating that he will not accept the same if completed, is a prevention of its completion, within the meaning of those words, as used in this connection. And in this case, if you believe from the evidence that the said plaintiff entered upon the contract referred to in the declaration filed in this cause, and after they partially completed the same or a part of the same, and some of them had been tendered, the said defendant, or her duly authorized agents or representatives, declined and refused to take said books, or any part thereof, then you are instructed, as a matter of law, that the said plaintiffs were thereby prevented from completing the same.” The second portion of this, beginning, “ And in this case,” the court refused to give. Mo effectual tender of the books or any portion of the volumes could be made, unless the books so tendered complied in all material things with the contract, both as to the books themselves and also' as to the time at which such tender was made. The instruction was properly refused. Appellant also asked that the following instruction should be given: “ Even if you should believe from the evidence that Mr. Salzer, the husband of Mrs. Salzer, called upon Mr. Burry, the agent of the said original defendant to this suit, and acting for and on behalf of Barrie & Son, agreed that the alleged contract might be abrogated, yet, if you believe from the evidence that there is a want' of any consideration for such a promise, you are instructed that such promise, if one was made, is not binding upon said plaintiffs.” A mutually executory contract may be abrogated by agreement, set aside at any time without there being any consideration for such abrogation other than the- release of the respective parties from their respective obligations. The instruction was properly refused. The following instructions were given at the instance of the appellee: 1. “ The jury is instructed that if they find a tender of the books was made under the contract sued on in this case, such books must conform to the requirements and specifications of the contract, and if such books do not so conform to such requirements and specifications, Mrs. McGregor Adams and the defendant in this case were entitled to refuse the books so tendered.” 2. “If the books tendered under the contract were marked with monograms, or in any other way than as provided in the contract, and such marking was in a material manner or part, and so as to materially affect their value or use, then the subscriber was not obliged to accept them.” Appellants urge that these instructions were improper, in that they did not contain the premise, “ if the jury find from the evidence or believe from the evidence.” Appellant was contending and still contends that the tender was by it made under the contract sued upon. We hardly see how, under such contention, they could have complained, if the court had instructed the jury that a tender of the books had been made under the contract. There was no dispute that each volume of the books was marked with the monogram. Such marking was'testified to by appellants’ witness. The second instruction, given at the instance of appellee, merely submitted to the jury the question of whether such marking was in a material manner or particular, and so as to materially affect their value or sale, telling the jury that if such were the case, the subscriber was not obliged to accept them. Mr. Alexander Barrie testified : “ Each of the volumes had stamped upon it the monogram of Mrs. Adams. These books would have been absolutely worthless to any one else.” We fully appreciate the importance of the consideration submitted to us in appellants’ brief, in which they call upon this court to right what they term the wrong done to appellants. Appellants have had accorded to them every right to which the law entitles them. They were upon the trial and are here represented by able counsel, so that upon an examination of the record and the briefs here submitted, we say their case could not in our opinion have been better handled. It is infrequently the case that both parties and counsel are not firmly convinced of the justice of the cause in which they are engaged and upon which courts are called to pass judgment. That they should be content with the conclusions arrived at, is too much to expect from human nature. We do not find any error in the record of this cause warranting a reversal of the judgment rendered. It is therefore affirmed.