Clemens v. Press Pub. Co. ( 1910 )

GAVEGAN, J.

The action was to recover $200 as the agreed price for a manuscript sold and delivered by the plaintiff, an author, to the defendant, a publisher. On August 3, 1909, the plaintiff called at the office of the defendant and offered for sale the manuscript of a story relating to a mysterious murder which had-occurred a short time before. After some parleying the defendant, through its acting managing editor, agreed to take the story, provided it were reduced in length, to pay therefor the sum of $200, and also to deliver to the plaintiff 25 galley proof copies for the use of the plaintiff in disposing of out of town rights therein to a syndicate of Western newspapers. Thereafter the plaintiff reduced the length of the story. Then a question arose as to whether the defendant would publish the story in its newspaper under the plaintiff’s name, and other interviews were had between the plaintiff and the defendant’s agents, from which it appears the defendant refused to publish plaintiff’s name with the story, and plaintiff objected to its publication without his name. The testimony as to what transpired at these subsequent interviews, however, was entirely irrelevant and immaterial.

In view of the fact that at the first interview on August 3, 1909, there was a, sale and delivery of manuscript by the plaintiff' to the defendant, under which title vested in the latter, nothing remained to be done but for the defendant to carry out its promise to pay the purchase price to the plaintiff. Title to the manuscript having passed by the completed contract made on August 3, 1909, the defendant was not obligated to publish it at all, nor could plaintiff compel or prevent its publication', with or without his name. The objections, refusals, and wishes of the plaintiff after parting with the title in the property may betray the eccentricities of the author; but they have no greater weight in law than the wishes of a stranger to the transaction after it was consummated.

It appears that the 25 galley proof copies of the manuscript, constituting a part of the consideration, were delivered by the defendant to the plaintiff, after these interviews in which the objections and refusals of the parties regarding the appearance of the plaintiff’s name were discussed, and that when delivered they contained the name of the plaintiff in the headlines of the story. Plaintiff never returned these galley proof copies to the defendant, and the defendant retained possession of the manuscript, which should dispose of the respondent’s point that there was a rescission; a retention of any part of that which was received upon the contract being incompatible with its rescission. Cobb v. Hatfield, 46 N. Y. 533; Francis v. N. Y., etc., R. Co., 108 N. Y. 93, 15 N. E. 192; Cohen v. Ellis, 52 Hun, 133, 5 N Y. Supp. 133.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.