
    ANSON WILLIS, Plaintiff and Respondent, v. NATHAN TIBBALS, Defendant and Appellant.
    I. Contract between authors and publishers.
    
    1. CONSTRUCTION OF.
    
      Held, that under a contract whereby the publisher agrees to publish the work, and pay the author for the copyright seven and a half cents for every copy of the book published, the publisher does not obtain the sole and exclusive right to publish the work.
    
      Held, that no usage was established which either gave to the words used such a meaning as would embrace such sole and exclusive right, or would make the passing of such a right a part of the contract.
    3. Pubmsheb. Right of,-under such a contract.
    It merely gives him the privilege of publishing as many copies of the book as he may see fit, on condition of paying the stipulated sum for each copy.
    3. Author. Right of, under such a contract.
    To allow as many other publishers .to publish the work as he pleases, and at such prices as he pleases; but he cannot give an exclusive right.
    
      4. Breach.
    
      Held, that the making of a subsequent agreement by the author, whereby he gave another publisher the right and privilege to publish the work, did not constitute a breach of such contract.
    
      Held, that the admission or rejection of evidence designed to excuse or justify the making of the subsequent agreement, and of evidence designed to bear on the question of damages arising from the making of the subsequent agreement, constituted no ground for reversal, as such admission or rejection could not possibly affect the result.
    II. Trial. Evidence. Admission and rejection of. Immateriality.
    
    
      1. The court will not reverse for the admission or rejection of evidence which could not possibly affect the result.
    III. Usage. How proved.
    1. By evidence of facts.
    3. Not by speculative opinion.
    
      Between authors and publishers,
    
    1. A certain claimed usage, held, not established.
    
      Before Monell, McCunn, and Jones, JJ.
    
      Decided March 4, 1871.
    This action is brought by plaintiff, who is the author of a work entitled “ Our Eulers and Our Eights; or, Outlines of the United States Government,” against the defendant, who published the work under a contract with the plaintiff, to recover the sum of five per cent, on -the retail price of eight thousand copies of said book, which number of copies he alleges the defendant published, and which sum of five per cent, he alleges was to be paid to him under the contract.
    The defendant, by his answer, claimed that the contract was: that after the sale of fifteen hundred volumes, the payment of twenty-five dollars for revising the manuscript, and six dollars and twenty-five cents for stereotyping, plaintiff should receive seven and one-half cents upon every volume sold in excess of the fifteen hundred volumes.
    That after this contract it was agreed between plaintiff and defendant, that Parmelee & Co. should be "allowed to purchase of defendant at the lowest possible price, and plaintiff should allow defendant at the rate of fifty dollars on the first six thousand books sold to Parmelee & Co. ; and defendant claims against plaintiff a pro rata on four thousand one hundred and forty-nine books sold to Parmelee & Co., amounting to thirty-four dollars and fifty-four cents.
    The answer then sets forth, that, by the agreement with the plaintiff, he, the defendant, was to be the sole publisher; that plaintiff afterwards, without defendant’s knowledge, entered into a contract with Parmelee & Co. to publish the book, under which contract Par-melee & Co. are publishing and selling, to defendant’s damage of four thousand dollars. The answer also claims an overpayment to plaintiff of sixty-nine dollars and sixteen cents.
    
      The plaintiff replied, denying the over-payment; denying that he agreed to allow fifty dollars on every six thousand books which should be sold to Parmelee & Co. ; denying that by the agreement between him and defendant, defendant was to be sole publisher, and denying that by the publication by Parmelee & Co. defendant has been damaged to the amount of four thousand dollars, or to any amount.
    The cause was tried before a referee, who, upon conflicting evidence, found as facts: ‘ ‘ That in or about January, 1868, the plaintiff made and entered into a contract with the defendant to publish the book in question.
    “That by the said contract the defendant agreed to publish said book, and to pay the plaintiff for his copyright of said book seven and a half cents for each copy of said book published.
    “ That before the publication of said book the defendant caused the same to be revised and corrected, so as to fit the same for publication, and informed the plaintiff thereof, who assented thereto, and that the defendant paid for such revision the sum of twenty-five dollars.
    “That in or about the month of July, 1868, the defendant, under and in pursuance of said contract, published an edition of said book for five hundred copies.
    “That after the publication of said edition the plaintiff, at the request of the defendant, revised the said book and enlarged the same, and that afterwards the defendant published seven thousand five hundred copies thereof so revised and enlarged, and that such revision and enlargement was reasonably worth two and a half cents for each copy, making ten cents for each of the last-mentioned seven thousand five hundred copies.
    “ That it was not agreed between the parties that the defendant should pay to the plaintiff a percentage upon the price for which the said book, when published, should be sold.
    “That after the publication of the said book, it was agreed between the said parties that the plaintiff should allow to the said defendant, on account of sales of books at a certain rate to other parties, to wit, Parmelee & Co., fifty dollars ; and that the plaintiff should allow to the defendant for certain additional stereotyping, two dollars.
    “ That the defendant paid to plaintiff in cash and in books the sum of two hundred and eighty dollars.
    “That by said agreement between the parties, defendant did not undertake to publish the said book within any certain time or in any particular style.”
    He further found as matters of fact:
    ‘ ‘ That defendant sought and failed to prove that there is an usage of trade in the city of Hew York, whereby a publisher who has agreed with an author to publish the works of the latter, which he has copyrighted, and pay him a certain price for each copy, becomes thereby entitled to the exclusive right to publish such work. And that plaintiff had no knowledge of any such custom.”
    Upon these facts he found as matters of law :
    ‘ ‘ That, by the agreement between the parties, the defendant did not become entitled to the exclusive right to publish the book ; that plaintiff was entitled to receive seven and a half cents for each of the first five hundred books published before the revision, and ten cents for. each of the seven thousand five hundred books published after the revision, making seven hundred and eighty-seven dollars and fifty cents; and defendant was entitled to offset the above-mentioned sums of twenty-five dollars, fifty dollars, two dollars, and two hundred and eighty dollars, making altogether thre'e hundred and fifty-seven dollars ; and that plaintiff was entitled to judgment against defendant for the balance, to wit, four hundred and thirty dollars and fifty cents.”
    It is necessary to advert to some of the testimony with a view of showing the questions arising in the case.
    About August 20, 1868, defendant entered into an agreement with Parmelee & Co., whereby he agreed that Parmelee & Co. should have the sole and exclusive right of sale of the work in the United States of America, and that he would furnish the books at cer-' tain stipulated prices from time to time, as ordered; and whereby Parmelee & Co. agreed to pay the stipulated prices, and guaranteed a sale of ten thousand copies of the work.
    There is evidence that piaintiff knew that the defendant intended to make a contract with Parmelee & Co., for the sale by them of the work, and agreed to make a deduction from the sum otherwise receivable by him on the books to be sold by Parmelee & Co. at the rate of fifty dollars on the first six thousand copies; but there is no evidence tending to show that plaintiff ever knew or was advised of the contents of the contract or its terms, or sanctioned them.
    Defendant, under his agreement with Parmelee & Co. furnished them with five thousand four hundred and seventy-one copies.
    Sometime in December, 1869, plaintiff made a contract with Parmelee & Co. to publish this book, being then aware that defendant had employed them for the sale of the book.
    After Parmelee & Co. made this contract with plaintiff they ordered but a few copies from defendant, and finally ceased entirely in January, 1869.
    There was proof on the part of plaintiff tending to show that defendant was guilty of gross delay in getting out' the book; that the book was poorly printed and bound; that there was great delay in furnishing Parmelee & Co. with the copies they ordered, and finally a .positive refusal to furnish them with certain descriptions thereof at the contract price, and that defendant had put a higher retail price on the book than had been agreed on between him and plaintiff.
    All of which matters were relied on by plaintiff as a justification for his making the contract with Parmelee & Co.
    The defendant introduced evidence in contradiction of these several matters.
    The referee has not found on them.
    The defendant, for the purpose of proving damages to him, offered to show how much the paper, printing,' and binding cost per volume; how much the stereotype plates cost; what the average sale of the book was down to December, 1868.
    The evidence was objected to by plaintiff ; the objection was sustained, and defendant excepted.
    The plaintiff offered in evidence the contract between Parmelee & Co. and defendant. The defendant objected ; the objection was overruled, and defendant excepted.
    The defendant had, previous to this, offered the same agreement in evidence, and it had been rejected on plaintiff’s objection, to which rejection defendant excepted.
    The plaintiff introduced evidence to show that it was the fault of defendant that Parmelee & Co. had not sold the ten thousand copies, with the view of showing that defendant, by his acts, had damaged and was damaging plaintiff by impeding the sale of his book. The evidence was objected to and the objection overruled, and defendant excepted.
    Evidence was introduced by the defendant, designed to establish that there is an usage whereby the publisher, under such a contract as this, obtains the sole right to publish the work. hTo evidence on this point was adduced in plaintiff’s behalf.
    After this evidence had been introduced the plaintiff was recalled and asked if he had ever heard of such a custom. This question the defendant objected to ; the objection was overruled, and an exception was taken.
    This comprises all the objections raised on the trial, except objections to two questions put by defendant, designed to prove matters which the plaintiff had proved on his examination, and in relation to which there was no contradictory evidence.
    From the judgment intered on the report of the referee this appeal is taken.
    
      George N. Lord, for defendant and appellant.
    
      Niles & Bayley, for plaintiff and respondent.
   Jones, J.

The basis of the referee’s decision is, that under the words of the contract defendant did not obtain the sole and exclusive right to publish the work, and that there was no usage which either gives to the words used such a meaning as would embrace such sole and exclusive right, or make the passing of such a right a part of the contract.

If this basis is correct, it follows that notwithstanding the contract with defendant, the plaintiff had a right to give a license to as many other publishers as he saw fit, to publish this work.

In this view, the objections taken on the trial are immaterial ; the evidence received and that rejected could not possibly have affected the result.

Is this basis correct %

The proper construction of the words of this contract is that defendant should have the privilege of publishing as many copies of the book as he saw fit, on condition of paying therefor seven and one-half cents each copy.

The argument against this construction and in favor of defendant’s view, to wit, that the contract amounted to an assignment of the copyright of the work, and gave the defendant the exclusive right to publish it, are, 1st, that the right to publish would be comparatively valueless unless it was exclusive, and, 2nd, that a publisher could not afford to undertake the expense of publication unless he had the exclusive right.

It is, however, evident, that a right to publish, although it is not an exclusive one, is not wholly valueless. Whether it is of sufficient value to justify the making of a particular contract, is a question for the publisher to determine, before entering into the contract. It may even be that a publisher would prefer paying to the author a small sum on each copy published for a non-exclusive right ‘ to publish as many copies as Ije pleased, to paying a larger sum for the exclusive right, depending on his ability to produce the work at the sum paid the author, in a style superior and at prices less than any other publisher can.

The price agreed to be paid the author wa s not so enormous as to preclude the idea that the publisher preferred making a contract at that price, whereby he did not get the exclusive right, to making one at a higher rate which should give such a right.

The construction contended for by the defendant, would be far more unreasonable than the one claimed by plaintiff.

Under the defendant’s construction, we would have an author parting with all right to the control of his copyright for a sum to be paid on each book when published, without any means to compel the publication of a single copy, or to claim damages for pon-publication.

So far as reasonableness goes, the weight of the argument is strongly in plaintiff’s favor.

In truth, in such a contract as this each party relies on the interest of the other.

The publisher assumes that if he, in good faith, publishes with proper efforts to assure circulation, and the work finds favor with the public, and becomes a success, the author will not give a license to another publisher, except at an increased rate, proportioned to the success of the work, in which case he, the first publisher, can readily command the market by underr selling the second one; whereas, if with proper diligence and energy in getting out the work, advertising it, and otherwise bringing it before the public, it fails to be a success, then that no other publisher would care to publish it at any price.

The author, oh the other hand, assumes that the publisher makes the contract expecting to profit thereby, and that he will use every effort to makue the work successful; and if successful, that he, for his own profit, will publish as largely as the demand call’s for.

Thus each regards his rights and interests sufficiently protected by a contract bearing the construction the plaintiff assigns to the one in qustion.

This leads to the inquiry 'as to whether the evidence established the usage sought to be proved.

I think it was wholly insufficient to establish the claimed usage.

1. A usage must be proved by evidence of facts, and not by mere speculative opinion (Greenl. on Ev. § 251 ; Stark, on Ev. vol. 2, p. 361).

The witnesses relied on to establish the usage in this case, are all publishers. They give, it is true, their opinion that such a usage exists. This opinion, 'however, is purely speculative. Hone of the witnesses pretend to have had any actual practical experience of 'it. They all say (with the exception of Mr. Clark), that the point never came up in their business ; that they had never known it discussed between publishers, or between publishers and authors, or between authors, and had never heard it spoken of except by the defendant.

Mr. Clark differs from the others only in saying that it came up for discussion between himself and partners some years ago; but he says that it never came up as a practical question in his business, or the business of any other publisher, to his knowledge. He further says, he generally provides for the exclusive right by written contracts, and relies on the contracts, and in some verbal contracts he relies on the honor of the author (fols. 104-105).

There cannot well be a weaker case made in support of a usage, or one resting more on speculative opinion than this, unless it is one where the witnesses brought to prove the custom have never had any connection with, or any dealings, in any shape or form, in the business, in relation to which the custom is sought to be proved.

2nd. A Usage must be established, known, certain and uniform.

Most of the witnesses testify that when they have a written contract they insert a clause giving an exclusive right.

It is certainly singular to insert a clause to secure that which a well-established, known and certain custom already fully secures to them. If, under an oral contract, without any special stipulation, the exclusive right is obtained by force of usage, so it is under a written contract without a written clause ; and e con-verso, if a special clause is requisite in a written contract so is an express stipulation in an oral one.

But one of the witnesses shows that the custom is not established and certain ; for he says that in some oral contracts he relies on the honor of the author (fol. 105). If the custom is good for anything it applies to all contracts (unless there is a stipulation excluding its operation), and consequently there would be no necessity for relying solely on the author’s honor in any contract. Another witness shows that the usage claimed is not certain and uniform, for he says it gives the exclusive right, for a certain term, or the whole term of the copyright—that is to say, it may be for a term of years, never less than five years (fol. 107).

What is the usage, according to this witness ? Is it to pass the exclusive right for five, seven, eight years, or the whole term ?

If he means that the usage passes the right for only five years, or the whole term, if it is less than five years, leaving it to the agreement of the parties if it is to pass, for a longer term, then, he is at variance with the other witnesses, who place no such limitation on the effect of the usage.

3rd. The usage is unreasonable.

The views above expressed as to the construction the defendant claims for the words of the contract are equally applicable here.

From an examination of the evidence, it appears that the witnesses have formed their opinions from a process of reasoning, and not from the existence of facts.

The propositions on which the reasoning is formed, are : that they have never known a case where an author, after making a contract like this with a publisher, has given a license to publish to another publisher; that such custom .is necessary to protect publishers, otherwise they would be at the mercy of. authors. From these propositions they draw the conclusion that the custom does exist (fol. 99).

The propositions are not, even as matter of reasoning, sufficient to support the conclusion.

It does not appear that the witnesses ever knew or heard of a single instance in which a contract like this was entered into. Nor of how many such instances, if any. But, assuming that they had heard of several such instances, the fact that the authors in those cases (being well satisfied with the first publisher), did not deem it to their profit or advantage to license other publishers, certainly does not warrant the presumption that there existed a usage which prohibited them from so doing, if occasion required; and as to publishers being under such a contract as this, at the mercy of the author, if such a custom does not prevail, they are no more so than authors would be at the mercy of the publishers if it did prevail. Both can protect themselves by proper stipulations, made either orally or in writing.

Judgment affirmed, with costs.  