
    Fannie Bean, Resp’t, v. George W. Carleton et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Evidence—Action nor damages bob bbeach on contract—As to contract BEING UNUSUAL.
    In an action to recover damages for a breach of contract in regard to the publication of a book, the evidence of another publisher to the effect that the written portion of the agreement was an unusual contract between a publisher and an author is inadmissible.
    2. Same—As to bbeach not alleged.
    Evidence as to a breach of the contract not alleged in the complaint is not admissible.
    3. Same—When written agreement does not cover entire contract.
    Testimony as to the cost of printing the book in an action when the-written agreement did not purport to cover the entire contract is admissi. ble as being relevant to the disputed question as to whether the memorandum embodied the entire agreement and as tending to prove that the bargain testified to was unreasonable.
    Appeal from judgment entered upon the verdict of a jury at circuit, and from order denying motion for a new trial.
    
      Edmund Coffin, Jr., for app’lts; Alfred D. Cruikshank, for resp’t.
   Bartlett, J.

This is an action to recover damages for an alleged breach of contract in regard to the publication of a book of which the plaintiff was author. On a previous appeal we held that inasmuch as^the written agreement: did not purport to cover the entire" contract between the-parties, the omission might be supplied by oral testimony. Bean v. Carleton, 6 N. Y. State Rep., 641. On the trial which resulted in the judgment now appealed from, such paroi was admitted. The court clearly erred, however, in receiving the evidence of Mr. Geo. H. Putnam, a publisher, to the effect that the written portion of the agreement was-an unusual contract between a publisher and an author.

No case is cited as authority for the admission of such evidence, nor do we know of any rule of law which justifies its reception. In Carleson v. Oceanic Steam Navigation Company (109 N. Y., 359; 15 N. Y. State Rep., 519), a Swedish peasant woman sued to recover the value of her-trunk and its contents lost on the defendant’s line of steamers, and evidence was offered for the defense tending to show that the usual value of the baggage of such passengers was less than .that claimed to have been lost by the plaintiff. The trial court refused to admit the evidence and the ruling was sustained. This decision is adverse to the respondent upon the points under consideration.

It is suggested in the present case that proof of the unusual character of the written agreement tends to support-the testimony of the plaintiff that the writing did not express her whole contract with the defendants; but inasmuch as parties may, and in fact often do, enter into agreements out of the common run, we think it is going too far into the realm of mere speculation to assume that simply because the terms of a stated contract are novel or exceptional, it is probable that the real agreement between the-parties is different from that alleged.

It was also error to admit evidence, against the objection, and exception of the defendants’ counsel, as to the failure of the defendants to illustrate the plaintiff’s book in the manner agreed upon. The complaint alleged certain specific breaches of the contract, of which this was not one. It said nothing whatever about the illustrations or the omission to provide such as were promised by the defendants Carlton. The plaintiff’s testimony therefore to-the effect that he had failed to fulfill his agreement with her in this respect was irrelevant to any issue in the case. In overruling the objection, the court conceded that no recovery could be had on this ground, but intimated that the-testimony might go to show whether the whole agreement was carried out or not. This view, however, did not render it any more admissible, for proof that a contract had been violated in one particular has no tendency whatever to show that it had been violated in other and widely different particulars.

The testimony introduced in behalf of the plaintiff as to the cost of printing such a book as her’s at the time it was printed by the defendants was properly received. Cornell v. Markham, 19 Hun, 275. It was relevant to the disputed question whether the memorandum embodied the entire agreement between the parties; and, as in the case cited, it tended to prove that the bargain, as testified to on the other side, was unreasonable.

The appellant insists that the complaint should have been dismissed for the plaintiff’s failure to prove any damages at all, or that in any event the jury should have rendered a verdict for nominal damages only. It is not necessary to express any opinion on these points, as we must reverse the judgment on account of the erroneous rulings already considered, and it may very well be that the plain- • tiff on another trial will be able to offer more certain and • satisfactory proof of the damages she sustained The difficulties of fairly estimating the injury done to an unknown author by the breach of a contract to publish that author’s first book are manifestly very great, but they are not necessarily insuperable; and “a person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain.” Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y., 205, 209.

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

Van Brunt, Ch. J., and Daniels, J., concur.  