Colgate v. White

HAND, District Judge (after stating the facts as above). I think there can be no doubt that Gower gave Colgate to understand that the facts were not to be published in the ordinary biography which is used as a bait to practice upon the vanity of the simple and so procure their money, but was to be used! in a publication issued under the auspices of the United States government. It is significant that Gower does not deny that Colgate used the word “government” in reply to his own questions. Both sides concede that Colgate was extremely unwilling in the first instance to allow his biography to be used, and was reluctantly forced into the enterprise; nor do I think that there can be any doubt that whether his inference was reasonable or not he certainly supposed that the book had the sanction in some form of the government. Colgate’s immediate claim of being misled is strong corroboration of that fact, as is also the affidavit of McDaren, the stenographer. The question is whether Gower gave him reasonable grounds for believing so. The name of the publication somewhat lent itself to that misconstruction. Colgate swears distinctly that he used the word “government” a number of times, and McDaren corroborates him. The well-known urgency of book agents to procure subscriptions under these circumstances adds to my belief that Gower let the interview proceed after it would have been apparent to any reasonable man that Colgate was acting under a misapprehension, and supposed that the facts would not be published in the usual kind of biography. I therefore find that as a fact the reasonable implication of the conversation was that, if Colgate would tell the facts, Gower would use them in a biography having some official recognition from the United States government, instead of publishing the account which he was to get up from other sources as he had threatened. Upon the law I think that the complainant is entitled to an injunction, though not upon precisely the same lines as was suggested upon the argument. The contract between the complainant and the defendant, as I have found it, was to publish the facts of his life in a book issued under the auspices of the United! States government. Assuming that there was fairly to be implied a negative covenant not to publish the facts except in a biography issued under government auspices, we have the general rule now well established that where, as here, the defendant has received the consideration and the complainant cannot at law have adequate relief, an injunction will go to enforce the negative promise, even in a case where the court would not grant affirmative specific performance. While the law first grew up under cases of personal service, beginning with Gord St. Leonard's decision in [886] Lumley v. Gye, 1 D. G., M. & G. 604, it is by no means confined to such cases. Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, 51 N. E. 408, 43 L. R. A. 854, 68 Am. St. Rep. 749; Chic. & Al. Ry. Co. v. N. Y. L. E. & W. R. R. Co. (C. C.) 24 Fed. 516; Singer Sewing Machine Co. v. Union Buttonhole & E. Co., Holmes, 253, Fed. Cas. No. 12,904; Dwight v. Hamilton, 113 Mass. 175; De Mattos v. Gibson, 4 De G. & J. 276; Met. El. Supply Co. v. Ginder (1901) 2 Ch. D. 799; Wolverhampton & W. Ry. Co. v. London & N. W. Ry. Co., L. R. 16 Eq. 433, per Lord Selbourne. The question is, therefore, whether here the promise to publish the facts in a government biography carried with it by implication the promise not to publish them in another kind of work. It is true that there was not that kind of inconsistency between the two which made it impossible to perform both promises. It was not like employing a chartered ship upon another voyage. De Mattos v. Gibson, supra. However, Colgate showed clearly enough that he wouldl not have given the facts for any other purpose, and both parties understood that they were to be used only in a government biography. Colgate’s position was that, since some account' of his life was inevitable, he would disclose the facts if Gower would publish them, but that he would have nothing at all to do with the usual compilations which discredit the names of all those who lend themselves to their production. The commonest good faith requires the implication that he would not abuse the opportunity so given him by publishing them in a work which he from the outset found it necessary to assure Colgate that this was not. No objection arises from the fact that .the contract of subscription was in writing, because that clearly does not purport to cover the subject-matter of publishing the life, but was a mere subscription for the books themselves, regardless of their contents. It is true that the bill of complainant does not specifically rest on contract. The bill is of a vague sort, sets up all the facts as a bill in equity should, and then prays for relief. It makes allegations of fraud and misrepresentation, and shows that the contract was madie, what it was, and how the complainant’s right ensued. It also shows the threatened breach. While, of course, a bill in equity must advise the defendant of the facts upon which the complainant relies, it does not have to state one of the limited causes of action known at law. A bill in equity which asks for relief not itself inconsistent, but justified by the stating, or narrative, part of the bill, is ordinarily sufficient, nor is the complainant limited to any given theory in law, provided he does not depart from the bjll itself. Here the bill has no charge, no interrogatories, but confines itself to the narrative. It is quite as good as the bill in Briges v. Sperry, 95 U. S. 401, 24 L. Ed. 390. A court of equity interprets the bill so as to save its equity when possible (Street, Eq. Proc. § 288), and tolerates objections to its form only when taken at the outset, not at final hearing. The defendant raises objection to the jurisdiction of this court on the score of the amount of the “matter in dispute.” The matter in dispute is Colgate’s right under the contract to prevent the use of the [887] facts derived from him in- any biography other than one issued under government auspices. That right is not susceptible of certain valuation and must be fixed by either a jury, or a judge, from an estimate of the pecuniary recompense for the annoyance and chagrin involved. In this case it is, moreover, not limited by the injury suffered from a given infraction, because in analogy with the trade-mark cases it is the right itself which is at stake, not a specific violation. Colgate alleges that it is worth $3,000, and that is prima facie enough in the absence of bad faith or obvious exaggeration. Hilton v. Dickinson, 108 U. S. 165, 174, 2 Sup. Ct. 424, 27 L. Ed. 688; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729. I certainly cannot say that the value here laid is colorable under the act of 1875 in such sense that I must dismiss the bill. It may well be that to prevent the spreading broadcast of any kind of publication which will perpetuate the circumstantial details of his life would be worth to Colgate $3,000 or more. I remember that the right is not to prevent any facts from coming out, but only those which he himself told. However, it is one thing to have irresponsible persons tell what they can learn generally, and another to have them tell the details that you have told them yourself. In the absence of any proof that the facts which he did give out were merely formal or such as any one might learn, I must accept his own valuation under the usual rule. However, there is no jurisdiction over the contract of subscription. There were substantially two contracts here. By one Colgate agreed to take a set of books at $10 a volume, and in the other Gower agreed to publish the facts of Colgate’s life in a government biography. The subject-matter of each is separate, and, as I have no jurisdiction over the subscription contract, the decree must be limited to an injunction against the defendant from using the facts so obtained. Let a decree pass to that effect, with costs.