GRIFFITH v. TOWER PUBLISHING COMPANY, [1896 G. 1617.] Contract-Author and Publisher-Publishing Agreement-Assignability. The principle established by Stevens v. Benning, (1854) 1 K. & J. 168, Reade v. Bentley, (1857) 3 K. & J. 271, and Hole v. Bradbury, (1879) 12 Ch. D. 886, that a publishing agreement between an author and a publisher, or a firm of publishers, is personal to the individuals entering into it, and that the benefit of such an agreement is not assignable without the author's consent, applies equally to the case of a similar agreement between an author and a limited company. MOTION. The plaintiff, who was the author of certain novels, entered into agreements with the defendant company for their publi cation. The first agreement related to a story called "The Angel of the Revolution," which had already appeared in a serial form in a publication called Pearson's Weekly. This agreement was contained in two letters. On July 3, 1893, the defendant company wrote to the plaintiff as follows: "Referring to our interview of Friday last, we have gone over the copy for your book, 'The Angel of the Revolution,' and are now prepared to undertake its publication upon equal sharing terms-i.e., we find the money, take all risks, and only charge actual out-of-pocket costs of printing and advertising, and hand you half of the ascertained profits. Should this be satisfactory to you, we shall be pleased to receive your acceptance of this offer at your convenience." On July 11 the plaintiff replied as follows: "I have pleasure in accepting the terms which you offer in yours of the 3rd inst. with reference to the publication of my story The Angel of the Revolution.' Mr. Bathgate has communicated with me the result of his interview with you and I accept your offer on the understanding conveyed by him that he has discussed with you and agreed upon the following conditions of publication. STIRLING J. 1896 Oct. 30. STIRLING J. 1896 v. TOWER "The copyright of the work is to remain with Mr. Pearson and myself with the proviso that you have the sole right of GRIFFITH producing the work in volume form subject to our agreement. You are to publish a series of six shilling editions; the number PUBLISHING of each edition to be agreed upon between us. (1) The LIMITED, style and get-up to be equal to that of 'The Captain of the MONCRIEFF. Mary Rose' with not less than sixteen full-page illustrations, equal in all respects to the first copies of this work. COMPANY, AND "You are to publish a series of three-and-sixpenny editions when the sale of the six shilling edition is exhausted, and books and accounts connected with the publication are to be open for the inspection of myself or an agent bearing my written authority. . . The plaintiff afterwards entered into similar agreements with the company in respect of two other novels written by him. The company subsequently became insolvent; and in an action brought against them by a debenture-holder, the defendant Moncrieff was appointed receiver and manager of all the property and assets of the company comprised in or subject to a debenture issued by them, including the plaintiff's works. The defendant Moncrieff having informed the plaintiff of his intention to sell the plaintiff's books, together with all the company's rights under the above agreements, to another publishing firm not approved of by the plaintiff, this action was brought; and the plaintiff now moved for an injunction to restrain the defendants from selling or assigning without the plaintiff's consent the benefits, rights, or interest alleged by the defendants to be now vested in them, or one of them, under the said agreements. The plaintiff stated in his evidence that what induced him to enter into the agreements with the defendant company was, first, that he liked the style and form in which books published by the company were got up; and, secondly, that he was favourably impressed by the company's manager as a man of business. (1) Some business details are omitted as not material for the purposes of this report. Millar, Q,C., and T. B. Napier, for the plaintiff. Agree- STIRLING J. ments of this kind between author and publisher, being of a 1896 personal nature, are not capable of assignment without the author's consent: Hole v. Bradbury (1); Stevens v. Benning (2); Reade v. Bentley. (3) GRIFFITH V. TOWER LIMITED, [STIRLING J. Can the personal confidence reposed by an author in a firm, or an individual, exist in the case of an MONCRIEFF. incorporated company?] Yes. The company may have a reputation to keep up, and may inspire confidence by its officers and servants. Hastings, Q.C., and Edward Ford, for the defendant Moncrieff. The principle of the authorities cited does not apply to the case of a contract between an author and a limited company. The constitution of a company may alter, and its officers may be changed at any time. But, assuming that the agreement is not assignable, then nothing would pass by an assignment, and an injunction is unnecessary. The company did not appear. Millar, Q.C., in reply. STIRLING J. (after stating the facts and referring to the first agreement). If the agreement in question had been entered into with an individual or a partnership firm, it is clear, upon the cases, that the contract would be of a personal nature, and that the benefit of it would not be assignable. There are three authorities bearing upon the point: Stevens v. Benning (2), Reade v. Bentley (3), and Hole v. Bradbury. (1) It is not necessary for me to go through them; but from what is there laid down it is clear that the benefit of agreements of this kind is not assignable. There is a sentence in the letter of July 11, 1893, to the effect that the copyright is to remain with the plaintiff and Mr. Pearson, subject to the right of the company to produce the novels in volume form under the agreements. That seems at first sight to give to the company something in the nature of copyright in the right of production in volume form; but I think the true meaning is, that it merely (1) 12 Ch. D. 886. (2) 1 K. & J. 168; (1855) 6 D. M. & G. 223. 1896 GRIFFITH V. STIRLING J. constituted a licence to produce the work under the agreement. The Tower Publishing Company is now insolvent. It is unable to perform the agreement, and a receiver of the business has been appointed. It is suggested that there is a difference PUBLISHING between a company contractor and an individual contractor, LIMITED, and that though a contract entered into between an author MONCRIEFF. and an individual publisher or a publishing firm consisting of TOWER COMPANY, AND individuals may not be assignable, yet a similar contract entered into between an author and a limited company is capable of assignment. I should hesitate long before accepting that view. If the contract is assignable, then it is not merely assignable in case of a winding-up, but must be assignable at any moment. I think it would be startling to authors who have entered into publishing agreements with firms whose businesses have recently been converted into public companies to be told that their agreements were assignable by those companies. But in truth it seems to me it would be going too far to draw any such distinction. An author may have confidence in a limited company as well as in an individual publisher. A limited company may have a reputation for producing books in good style and attractive form, and an author selecting such a company as his publisher may do so in the reasonable expectation that the company, although its members and its officers may fluctuate, may nevertheless consider itself under an obligation to maintain its reputation. In the present case what attracted the plaintiff was that the company had published certain books in a form and style of which he approved. No doubt part of the inducement was also that the company had a very efficient manager. It was said that the company might have discharged him the next day without giving the plaintiff cause to complain. That observation is well founded. The company might have discharged its manager the next day, and appointed new officers at any time; but still the plaintiff might well act on the assumption that the Tower Company and those who directed its affairs would select a manager who would maintain the reputation of the company. It seems to me that it would be wrong to draw any such distinction as is suggested between an agreement entered into by 1896 GRIFFITH v. TOWER an author with an individual publisher and a similar agreement STIRLING J. between an author and a limited company; and agreements of the former kind being non-assignable, I hold that agreements of the latter description are also incapable of being assigned. I think, therefore, that an injunction ought to be granted. PUBLISHING It is true that any assignment of the agreement might be LIMITED, inoperative; but still it might give rise to disputes between the MONCRIEFF. plaintiff and persons who might seek to avail themselves of the position of assignees. Solicitors for plaintiff: Harrison & Davies. COMPANY, AND Solicitors for defendant: McKenna & Co. G. A. S. PATTLE v. HORNIBROOK. [1895 P. 2213.] Agreement for Lease-Signature not final-Parol Evidence. The plaintiff, a spinster, having signed an agreement for the lease of a house to her by the defendant, the defendant subsequently signed it, and handed it to his solicitor with instructions not to part with it except on condition that the plaintiff obtained some responsible person to join in the lease-a condition which the plaintiff declined to fulfil :— Held, that evidence was admissible to shew that no agreement was come to between the parties, and that the true effect of the transaction was that the defendant declined to enter into an agreement on the terms of the written document, but at the same time made a counter offer which was rejected, and that there was no agreement. In this action the plaintiff, a spinster, claimed by the writ and statement of claim specific performance of an agreement in writing dated September 24, 1895, whereby the defendant agreed to grant her a lease of a leasehold house, No. 2, Bloomsbury Street, or damages for the breach of it. At the trial the claim for specific performance was given up, and damages only were sought. The defendant by his defence denied that he had entered into any agreement with the plaintiff, and alleged that he had declined to accept her as tenant unless some responsible persons STIRLING J. 1896 Nov. 12, 21. |