Planche v. Colburn and Another.

IN THE COMMON PLEAS.

Original Printed Version (PDF)

Original Citation: (1831) 8 Bing 14

English Reports Citation: 131 E.R. 305

November. 5, 1831.

S. C. 1 Moo. & S. 51; 1 L. J. C. P. 7; at Nisi Prius, 5 Car. & P. 58. Discussed, Prickett v. Badger, 1856, 1 C. B, (N. S) 304. Adopted Inchbald v. Western Neilgherry Coffee Company, 1864, 17 C, B, (N. S.) 740; Panama and South Pacific Telegraph Company v. Indi rubber, Gutt Percha and Telegraph Works Company, 1875, L. R 10 Ch. 532.

Planche v. Colburn and Another. Nov. 5, 1831.

Defendants engaged Plaintiff to write a treatise for a periodical publication. Plaintiff commenced the treatise, but before he had completed it, the Defendants abandoned the periodical publication : Held, that Plaintiff might sue for compensation, without tendering or delivering the treatise.

The Defendants had commenced a periodical publication, under the name of "The Juvenile Library," and had engaged the Plaintiff to write for it a volume upon Costume and Ancient Armour. The declaration stated, that the Defendant had engaged the Plaintiff for 100l. to write this work for publication in "The Juvenile Library;" and alleged for breach, that though the author wrote a part, and was ready and willing to complete and deliver the whole for insertion in that publication, yet that the Defen¡dants would not publish it there, and refused to pay the Plaintiff the sum of 1001., which they had previously agreed he should receive. There were then the common counts for work and labour.

At the trial before Tindal C. J., Middlesex sittings after last term, it appeared that the Plaintiff, after entering into the engagement stated in the declaration, commenced and completed a considerable portion of the work; performed a journey to inspect a collection of ancient armour, and made drawings therefrom; but never tendered or delivered his performance to the Defendants, they having finally abandoned the publication of " The Juvenile Library," upon the ill success of the early numbers of the work. An attempt was made [15] to shew that the Plaintiff had entered into a new contract.

The Chief Justice left it to the jury to say, whether the work had been abandoned by the Defendants, and whether the Plaintiff had entered into any new contract; and a verdict having been found for him, with 50l. damages,

Spankie Serjt. moved to set it aside, on the ground that the Plaintiff could not recover on the special contract, for want of having tendered or delivered the work pursuant to the contract; and he could not resort to the common counts for work and labour, when he was bound by the special contract to deliver the work. If the Plaintiff had delivered the work, or so much of it as he had completed at the time " The Juvenile Library" was abandoned, the Defendants might have turned it to account in some other way.

Tindal C. J. In this case a contract had been entered into for the publication of a work on Costume and Ancient Armour in "The Juvenile Library." The con¡siderations by which an author is generally actuated in undertaking to write a work are pecuniary profit and literary reputation. Now, it is clear that the latter may be

306 COBBETT V. COCHRANE 8 BING. 16.

sacrificed, if an author, who has engaged to write a volume of a popular nature, to be published in a work intended for a juvenile class of readers, should be subject to have his writings published as a separate and distinct work, and therefore liable to be judged of by more severe rules than would be applied to a familiar work intended merely for children. The fact was, that the Defendants not only suspended, but actually put an end to, "The Juvenile Library;" they had broken their contract with the Plaintiff; and an attempt was made, but quite unsuccessfully, to shew that the Plaintiff [16] had afterwards entered into a new contract to allow them to publish his book as a separate work.

I agree that, when a special contract is in existence and open, the Plaintiff cannot sue on a quantum meruit: part of the question here, therefore, was, whether the contract did exist or not. It distinctly appeared that the work was finally abandoned; and the jury found that no new contract had been entered into. Under these circumstances the Plaintiff ought not to lose the fruit of his labour; and there is no ground for the application which has been made.

Gaselee J. concurred.

Bosanquet J. The Plaintiff is entitled to retain his verdict. The jury have found that the contract was abandoned; but it is said that the Plaintiff ought to have tendered or delivered the work. It was part of the contract, however, that the work should be published in a particular shape; and if it had been delivered after the abandonment of the original design, it might have been published in a way not consistent with the Plaintiff's reputation, or not at all.

Alderson J. concurred, and the learned Serjeant

Took nothing.