
    Fanny Bean, Resp’t, v. George W. Carleton et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Contract—Damases eor breach—Evidence.
    Plaintiff entered into a contract with defendants for the publication of her hook, which provided that she should pay them $900, which was to be repaid when the sales of the book reached 2.000, and they were to pay her a royalty on all sold over that amount. In an action for breach of said contract, Held, that evidence t) show that it was agreed that 2,000 copies should be published was properly received; and that defendants having failed to do so, and plaintiff not having benefited by the contract as far as performed, she was entitled to recover the sum paid by her.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.
    Action to recover $2,500 damages for the violation of a contract to publish a book written by plaintiff, called “ Dr. Mortimer’s Patient,” by reason whereof she alleges that she has lost profits which she would otherwise have received, and for injury to her reputation as an author. ^The contract in question provided that plaintiff should advance to defendants the sum of $900, the receipt of which was acknowledged, and that, “ Carleton & Co. shall publish said book and repay to said Bean the said $900 as soon as the sale of the said book reaches 2,000 copies, but not pay any portion back until 2,000 are sold,” and, further, that they should pay her, as copjn’ight, twenty cents on all sold over that amount.
    On the trial evidence was admitted to show that it was at the same time orally agreed that defendants should print, bind and publish 2,000 copies. Only 1,000 copies were actually published by defendants.
    
      I. D. Warren, for app’lts; A. B. Oruikshank, for resp’t.
   Vak Brunt, P. J.

This is the third time that this case has "been before the general term. Upon the previous appeals it was -determined that the plaintiff had a right to offer parol evidence showing that the written contract mentioned in the pleadings did not comprise the whole contract entered into between the parties, but that additional agreements had been made. Although much may be said against the conclusion arrived at, yet upon this appeal we think that it should be followed, and therefore that branch of the case will not be again discussed.

The only other questions raised by the defendants are as to the r-ule of damages, and an exception to the.-admission of" certain evidence.

If the contract was as claimed by the plaintiff, and there was a breach on the part of the defendant, then clearly the plaintiff would have a right to recover back that which she had paid thereunder, because there is no evidence tending to show that the plaintiff had benefited by -the contract so far as it was performed. The defendants failing to do that for which the money was ad: vanced, necessarily gave the plaintiff the right to recover back that which she had paid.

As to the exceptions to the admission of evidence, we have examined them and find none of them which calls for a reversal of the judgment.

Upon the whole case, therefore, we think that the judgment should be affirmed.

Bartlett, J., concurs.  