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England and Wales High Court (King's Bench Division) Decisions

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Cite as: [1831] EWHC KB J56, 172 ER 876

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Neutral Citation Number: [1831] EWHC KB J56
(1831) 172 ER 876


14 June 1831

B e f o r e :

Tindal C.J.


Colburn & Anor


Wilde, Serjt., and Kelly, for the plaintiff.
Spankie, Serjt. and Dodd, for the defendants.


    The first count of the declaration stated, that the defendants were publishers of books, and were designing for publication a work to be entitled "The Juvenile Library" and had applied to the plaintiff to write for them a certain volume on costume, to form part of the said work, which the plaintiff had agreed to do; and thereupon, in consideration of the premises, etc., the defendants undertook to pay the plaintiff the sum of 100 for the said volume, whenever, after the writing of the same by him, and the delivery thereof to them, they should be thereunto requested. It then averred, that the plaintiff commenced writing the volume, and wrote a great part of it, and was ready and willing to complete it, and deliver it to the defendants; yet, they not regarding their promise, but intending to injure and defraud him, did not nor would permit him to complete it, but, on the contrary, wholly discharged him from completing it, and refused to pay him either the 100, or to make him any compensation or remuneration whatsoever for the part which he had written, or for his loss of time, trouble, and expenses, etc.

    The second count stated, that the defendants were indebted to the plaintiff in 100 for work and labour, care, and diligence, in and about the composing and writing a certain work form them, and in and about the making of certain drawings; and also for journeys and attendances relating to the business. The third count was similar, except that it was on a quantum meruit. Plea The general issue.

    From the evidence of Mr. Jerdan, the editor of the Literary Gazette, it appeared, that about September 1830, the plaintiff, who was the author of several dramatic entertainments, was engaged by him, with the knowledge of the defendants, Messrs. Colburn & Bentley, who were the publishers of a work called "The Juvenile Library", to write for that work an article to illustrate the history of armour and costume from the earliest times, for which he was to be paid 100 guineas. It appeared, that the plaintiff went into the country to Dr. Meyrick's, a great proprietor of ancient armour, where he made various drawings; and also, that he had prepared a considerable portion of manuscript, when, after three volumes had been published, the Juvenile Library was discontinued. The plaintiff claimed a sum of 50 guineas for the part which he had prepared, and the trouble he had taken in the business.

    Spankie, Serjt., for the defendants, contended, that the engagement, as set out in the declaration and also in point of fact, was an engagement to pay for the article when complete; and this the defendants always had been and still were willing to do.

    He called a witness, who proved, that in the month of November a conversation took place between the plaintiff and the defendant Bentley, in which the latter told the former, that if he would finish his work he should have his money, as they were perfectly willing to publish it; that the plaintiff said it was better for a separate publication than for the Juvenile Library, as it treating it for children he had been very much hampered, and there was great difficulty in adapting it for juvenile comprehension.

    Wilde, Serjt., in reply: The defence set up is no answer to this action. It is one thing to write an article for an Encyclopaedia or a Juvenile Library, and another thing to write a separate work on the subject; different styles of writing are required for children and grown persons. That which was written with ingenuity, adapted to young minds, would make a man ridiculous, if published for grown up persons; such, in this case, was not the contract made, and the defendants have no right to call on the plaintiff to publish on such terms. An author, also, has an interest beyond the mere payment for a particular article. The kind of work is to be taken into consideration, with reference to his reputation, and the effect it will have on his future performances.

    Dodd, for the defendant, called his Lordship's attention to the fact, that the second count did not state that the article was to be published in the Juvenile Library, but was only a promise to pay 100 guineas for the article, which ,it appeared from the evidence, the defendants had offered to do.

    Wilde, Serjt., in reply: The contract was to publish in the Juvenile Library, and that is sufficient.

    Tindan, C.J.: I do not think it turns upon the second count, but upon the quantum meruit in the third count.

    His Lrodsihp afterwards (in summing up) said: The plaintiff does not seek to recover the whole sum contracted for, but only a fair remuneration for that part of the article which he had prepared, and which was rendered useless by the discontinuance of the work in which it was to appear. The object of the defendants evidently was, to have a publication adapted to persons in the younger classes of society. The question you have to consider is, what degree of credit you give to the defence; which, it appears to me, must amount to this, or it amounts to nothing: that after the contract was broken, an entirely new arrangement was made, to furnish the matter for publication in a separate form. It seems, that in the month of November the plaintiff thought that the subject was one better suited for separate publication; but undoubtedly, up to that time, he had been preparing it for juvenile readers; and the form and size of the proposed new work were not settled on that occasion. It might be, that the plaintiff considered the subject-matter was better adapted for a separate publication, without admitting that the MS. and drawings already prepared were suited to such a publication. It will be for you to say, whether you think that this was a separate bargain, in which the plaintiff gave up the old contract altogether; for if you do, then you must find your verdict for the defendants. The question is, was the first agreement entirely abandoned with the consent of the plaintiff, and an entire new arrangement made between the parties? For only in such case can the verdict be for the defendants.

    Verdict for the plaintiff. Damages 50.

    Spankie, Serjt., submitted that the verdict could not be taken on the quantum meruit, and that the special count did not accord with the evidence.

    Tindal, C.J., thought that the plaintiff might recover on the quantum meruit; but said, that he would take a note of the objection.

    Wilde, Serjt., and Kelly, for the plaintiff.

    Spankie, Serjt. and Dodd, for the defendants.

    A motion was made, but the Court refused a rule.

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