Church v. Bobbs-Merrill Company

• Decision Date: 02 December 1959
• Docket Number: No. 12618.,12618.
• Parties: Ruth Ellen CHURCH, Plaintiff-Appellant, v. BOBBS-MERRILL COMPANY, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F.2d 212 (1959)

Ruth Ellen CHURCH, Plaintiff-Appellant, v. BOBBS-MERRILL COMPANY, Inc., Defendant-Appellee.

No. 12618.

United States Court of Appeals Seventh Circuit.

December 2, 1959.

James C. Jay, John Z. Kepler, Indianapolis, Ind., for appellant.

Paul N. Rowe, John B. King, Indianapolis, Ind., Baker & Daniels, Indianapolis, Ind., of counsel, for appellee.

Before SCHNACKENBERG, PARKINSON¹ and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Ruth Ellen Church, plaintiff-appellant² brought this diversity action against Bobbs-Merrill Company, Inc., defendant-appellee³ seeking recovery of damages for alleged breach of contract. The District Court entered judgment for defendant on its motion for summary judgment. Plaintiff appealed and contends that the District Court erred in finding that there was no genuine issue as to any material facts involved and that as a matter of law defendant was entitled to summary judgment.

The contested issues are (1) whether the contract was rescinded by mutual agreement (2) whether plaintiff is estopped to charge defendant with breach of the contract (3) whether plaintiff repudiated the contract and (4) whether plaintiff failed to perform obligations under the contract which were prerequisite to defendant's duty to perform.

The contract alleged to have been breached was executed by plaintiff and defendant on January 18, 1951. In that contract plaintiff assigned to defendant all the volume publication rights in an unpublished literary composition to be written by plaintiff and entitled "Mary Meade's Magic Cookery" and plaintiff agreed to deliver to defendant, on or before January 2, 1953, the manuscript of said literary composition, consisting of approximately 4,000 recipes, complete, legible and ready for the printer. The defendant agreed to publish the work in one volume in the style and manner it deemed best. The contract fixed no publication date or time requirement for the performance of any part of defendant's undertaking. Plaintiff's complaint charges that on or about November 13, 1957 the defendant wholly repudiated the contract.

The material facts as hereinafter set forth appear from the admissions, exhibits and affidavits submitted in support of and in opposition to the motion for summary judgment.

From the execution of the contract until 1956 plaintiff periodically supplied portions of the manuscript. During the period 1952 through 1955 plaintiff pursuant to separate contracts prepared two other manuscripts which were published by defendant. The first was a book entitled "Mary Meade's Magic Recipes for the Electric Blender" published in 1952. The second book "Mary Meade's Kitchen Companion" was published in 1955. It is conceded that the preparation and publication of the two intervening books retarded progress on the preparation and completion of the manuscript for "Mary Meade's Magic Cookery", particularly since parts of the manuscript delivered earlier for "Mary Meade's Magic Cookery" were taken from that work and incorporated in the 1955 book.

In September of 1952 the contract deadline for delivery of manuscript was formally extended by defendant to September 15, 1953. The letter of extension noted that the original contract was to remain in full force and effect except for the extension of the date for delivery of manuscript. There were no further formal extensions but it is admitted that the date for delivery of the manuscript was from time to time extended by mutual consent and that the contract was considered to be in effect at the time of the alleged breach.

Subsequent to 1955 no additional manuscript was submitted by the plaintiff. In February of 1957 plaintiff wrote the defendant that she had the last chapters ready except for a little final organization, but realized that there needed to be revision on earlier chapters due to taking out material used in the 1955 book. Plaintiff also inquired if there was any thought of publishing the manuscript in parts. The defendant replied under date of March 7, 1957 that it had no thought of publishing parts of the manuscript as small separate books and advised that to insure against possible failure of the project that:

"First, the manuscript must be right, every detail in the best and most attractive shape. This will take time, thought and effort. Second, we must choose the most favorable season in which to launch the book. (Before we have any real choice, the manuscript must be in final form, ready for manufacture.)"

Plaintiff made no further inquiry until August 21, 1957 and during the interval no additional or revised manuscript was supplied by plaintiff. Under date of August 21, 1957 the plaintiff wrote defendant stating that its Indianapolis office had 85% of the finished manuscript and advised "I have the remaining chapters all but ready, but have not sent them as it seems now there is no definite plan for publication" and:

"Unless there is a firm, clear plan for the book I should like to have the manuscript back and present it to another publisher. Each chapter could be a book in itself".

Under date of September 4, 1957 the defendant replied as follows:

"I take it from your letter that what you want us to do now is to set up a definite publication schedule for the book; and if we are not able to do that at this time, you would like to have the manuscript returned and the contract cancelled so that you could arrange for publication elsewhere. Nothing could be fairer than that. From time to time we have given you extensions of the delivery date for the final, complete, manuscript; and in every instance I believe that this has been a matter of mutual accord."

The defendant further stated that plaintiff could expect a definite answer...