Jennison v. Knox

The plaintiff is an author, who, wishing to have an edition published of his work called “ Christie’s Choice, ” entered into an agreement with the defendants, who are publishers, for the publication. The plaintiff was to furnish the stereotype plates, to pay the cost of printing, and to advance $240 towards the expense of the paper and the binding, and he was to charge the defendants with 50 per cent, of the retail price of the book. By this we understand that he was to receive one-half of the retail price of the book, free and clear. The defendants were to undertake the publication, to furnish the paper, to bind the edition of 1,000 copies, to push the sale, to guaranty all sales, to account once in six months, to expend $25 in advertising, and to settle “on the basis of fifty per cent, from the retail price. ” When any books were delivered to the plaintiff, he had to pay to the defendant 75 cents for every copy that he received, and, when copies were sent to the newspapers for the purpose of obtaining a favorable notice of the work, the plaintiff was charged with 62 cents for every copy, and 10 cents for the postage on every copy. The defendants were regarded by both parties to the contract as the owners of the books in their salable form. They had the possession, and the right of possession, and all that the plaintiff could claim was 50 per cent, of the retail price of the books. In the books themselves he had no property whatever. Two hundred and forty of the books were accidentally burned, and the question is, is the plaintiff entitled to recover his 50 per centum of their price at retail? The controlling question is, what was the intention of the parties? They have made no provision for the case of the destruction of the books by fire, and our decision must depend upon the construction to be given to the written contract. Are we to construe the contract as one impossible of performance, and to call on the defendants to perform their obligation to account for 50 per cent, of the retail price of the books, or are we to imply as one of the terms of the contract the condition that the destruction of the books should free the defendants from the liability respecting those that were destroyed ? It has been the rule of the courts to imply such a condition where the subject of the contract is a specific thing for which a substitute will not answer. The most familiar illustrations of the rule are the case^[1] in which the horse Eclipse was bargained and sold, and he died before the day of delivery; and the case^[2] in which Surrey Music Hall was leased for certain concerts, but was destroyed by fire before the time for the concerts arrived. In both cases the court held that it was a condition implied from the very nature of the contract that the destruction of the thing that was bargained for, without the fault of either party, was a good excuse for not performing the contract. This was so, because both parties must have known when the contract was entered into that, unless the identical thing continued to exist, the performance would be an impossibility. Dexter v. Norton, 47 N. Y. 62 ; Pol. Cont. marg. p. 362; Hare, Cont. 648. But where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome, or even impossible. In such a case, to use the language of Judge Ruggles in Harmony v. Bingham, 12 N. Y. 115 , it must be deemed the folly of a party not to provide expressly against contingencies, and exempt himself from responsibility in certain events; and, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by or within the control of the party.