Cartin v. Boles

• Decision Date: 02 September 1980
• Docket Number: No. 59351,59351
• Parties: , 209 U.S.P.Q. 1142, 1981 Copr.L.Dec. P 25,288 CARTIN v. BOLES.
• Court: Georgia Court of Appeals

Page 799

270 S.E.2d 799

155 Ga.App. 248, 209 U.S.P.Q. 1142,

1981 Copr.L.Dec. P 25,288

CARTIN v. BOLES.

No. 59351.

Court of Appeals of Georgia.

Argued Feb. 4, 1980.

Decided June 17, 1980.

Rehearing Denied July 11, 1980.

Certiorari Denied Sept. 2, 1980.

Emory A. Schwall, Atlanta, for appellant.

Richard N. Hubert, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This is a case involving two literary works, Elijah and The Limner, based upon an alleged breach of contract and plagiarism. We have endeavored to read a record of no less than 611 pages; a trial transcript of no less than 2428 pages, containing several voluminous novel transcripts (drafts and redrafts), plus the parties' briefs of 185 pages and exhibits thereto consisting of 75 additional pages. Our resume of the uncontroverted facts of the case follows:

In or about February, 1973, Hazel Cartin, who had written a rough draft of a novel entitled Elijah, which she contends was essentially autobiographical in nature but with names, characters and events altered to render it a work of fiction, contacted Paul Darcy Boles, a well-known local author and experienced writer, having written several novels, for the purpose of assisting her in getting Elijah published. Boles accepted the novel manuscript for the purpose of reviewing and analyzing same, which he proceeded to do. Several months later, after extensive communication between the two, Boles highly commended the content of Elijah but stated that the work needed to be rewritten by an experienced writer before it could be published. He suggested that he would be willing to do so but that since it would cost him about $10,000 in time from his own writing, that is, "about two months of work," he would work only under contract to protect them both. He proposed a contract paying him $5,000 at the start of the writing and $5,000 on delivery of the finished novel manuscript.

A contract was then entered by and between the parties on June 8, 1973, in which Cartin paid Boles $5,000 "to write and to complete a novel manuscript to be called ELIJAH (or any other title the eventual publisher may desire consequent to the sanction of Hazel Cartin) by September 1, 1973." The contract further stated that "upon acceptance of the novel manuscript by a publisher, and a publishing contract from said publisher, she (Cartin) will pay ... Boles a second $5,000.00." Boles further agreed to turn the novel manuscript over to his literary agent (Fox Chase Agency, Inc., New York) for submission to any reputable publisher for publication in book form. Boles also agreed, that upon completion of the novel manuscript by him, to submit it to Cartin so that she might be in full agreement that he had been true to the spirit of her material, prior to sending it to his literary agent. Cartin was to be known as the author, that is, the manuscript would be submitted by the agent to a reputable publisher bearing the name of Cartin as the author. The contract then stipulated that all monies from the eventual publication of a book made from the manuscript "that is, all advances, royalties, book club rights, international rights, serial rights, and dramatic rights of any kind, including motion picture, television, and radio broadcast rights, which may accrue to the author from publication of this manuscript, shall be divided, equally, between Hazel Cartin and Paul Darcy Boles." The literary agent would render an accounting to both parties and would receive 10% of the total of all aforesaid monies accruing to the author from book publication, "for his good offices in placing the manuscript with a reputable publisher." The agreement in no way was to be construed as a guarantee of publication. The above is, in substance, the agreement by and between the parties.

Boles did not complete the rewriting of the manuscript by September 1, but it was completed sometime in October, 1973, and he advised Cartin on October 10, 1973, that he was sending it off to his agent to give him a chance to give it a thorough reading while he (Boles) and his wife were on a trip to Italy. Cartin contends that she was not satisfied at that point, that is, she was not in full agreement that he had been true to the spirit of her material prior to sending it to his literary agent; nevertheless, Boles contends that she allowed him to send the manuscript on to the agent while he was on the trip to Italy.

By January, 1974, Elijah was being considered by one publisher and Boles was allegedly in the process of revising his latest novel, The Limner, which he contended was to be published in the fall. By September 9, 1974, Ms. Cartin became disillusioned with her agreement with Boles and requested return of the $5,000 previously paid, and she consulted an attorney who advised her not to pay the additional $5,000, contending that a breach of contract had occurred.

Thereafter, Ms. Cartin sued Boles in two counts for breach of contract, later amending her suit so as to amount to seven counts, alleging breach of contract, return of literary property, breach of fiduciary relationship, tortious interference with plaintiff's contractual rights and prospective reward, fraud, infringement of plaintiff's common law rights, and unfair competition.

The defendant answered the original complaint by denying the claim or that he had in any way breached the contract and by amendment thereafter contended that he had exercised his best literary skills and exerted his best efforts to accomplish the writing of a publishable literary work from the manuscript of plaintiff and that he in nowise had breached the contract, but, on the contrary, the plaintiff had breached the contract; and he sought judgment against her for $5,000 for breach of contract, $25,000 punitive and exemplary damages for her failure to act in good faith, and $10,000 attorney fees.

After considerable discovery the case came on for trial, and the parties stipulated that it be heard by the court without the intervention of a jury and because it was a case involving plagiarism, of necessity, the court must review considerable materials relevant to the issues, hence, another superior court judge was designated to sit with the superior court judge to whom the case had been assigned. The court then rendered its findings of fact that the complaint was based upon breach of contract and, as amended, plagiarism.

As to the breach of contract plaintiff was contending defendant's work was not true to the spirit of her own and that the finished manuscript was not approved by her for permission for publication. The court then reviewed certain testimony in this respect and found that the weight of the evidence was on the side of the defendant, that he was not obligated to complete an accurate biographical novel pertaining to the life of the plaintiff nor to please her in every particular nor to incorporate her ideas in the work but to give plaintiff's material "his best and most thorough effort." The court found that while the contract required that the final manuscript be submitted to the plaintiff for her approval as to "the spirit of her material," the evidence was in conflict as to whether she had ever authorized the submission of the manuscript to the agent but that the evidence was such that while she was not totally happy with the submission of the manuscript at the time it was forwarded to a publisher (the agent to submit same to the publisher or publishers), "there was no substantial protest," and the plaintiff had not established by the weight of the evidence any breach of contract on that account.

With regard to plagiarism, the court reviewed all of the testimony of the various witnesses, including experts, and while finding that there were certain parallels between the original and rewritten manuscript of the plaintiff and the novel, The Limner, and that the evidence was in sharp and often emotional conflict as to whether the work, The Limner, contained plagiarism, and considering the testimony of the defendant that he had completely finished the original manuscript of The Limner before he had read plaintiff's manuscript; that even though the plaintiff had shown certain parallels and similarities between Elijah and The Limner, the court found that she had failed to carry the burden of proving plagiarism.

The conclusions of law of the two-judge court were that it was unconvinced by the greater weight of the evidence that the defendant either breached the contract or committed plagiarism, finding in favor of the defendant upon the plaintiff's claim.

As to the counterclaim, the court found that the defendant would have been entitled to an additional $5,000 from the plaintiff with 50% interest in royalties had he completed his contract in which he contended the plaintiff had prevented publication; but that any damage claimed by the defendant as flowing from any breach of contract by the plaintiff was "too remote and speculative to warrant recovery," concluding as a matter of law that the defendant was not entitled to judgment against the plaintiff upon the counterclaim. Judgment was rendered accordingly against the plaintiff and for the defendant. A motion for new trial and a motion for reconsideration based upon the general grounds, allowance of illegal evidence and newly discovered evidence were filed and denied. Plaintiff appeals. Held :

1. Error is enumerated to the finding of the court that the defendant did not breach the literary contract. With respect to the alleged breach, plaintiff contends the evidence amply demonstrates that a breach of contract occurred. Considering the totality of the allowed evidence, the court, as trier of fact without the intervention of a jury, would have been authorized to have found that defendant failed to remain true to the spirit of plaintiff's story and plaintiff never, in accordance with the contract, approved the rewrite by defendant sent to the agent for submission to a...