MacDonald v. Page Co.

• Decision Date: 12 March 1925
• Citation: 251 Mass. 299,146 N.E. 727
• Parties: MacDONALD v. PAGE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 299

146 N.E. 727

MacDONALD

v.PAGE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 12, 1925.

Exceptions from Superior Court, Suffolk County; F. T. Hammond, Judge.

Bill by L. M. Montgomery MacDonald against the Page Company and another to restrain defendants from publishing volume of short stories written by plaintiff and for damages and accounting. From certain rulings accompanying order for decree for plaintiffs, defendant named excepts. Exceptions overruled.

W. A. Rollins, of Boston, for plaintiff.

Asa P. French, of Boston, for defendant.

RUGG, C. J.

This is a suit in equity. Its object is to restrain the defendant from publishing a volume of short stories written by the plaintiff and for damages and an accounting of profits. The case was referred to a master. His report contains findings at length of all material facts, with parts of the evidence. The judge of the superior court, who heard the case on exceptions to the master's report, apparently had before him a full transcript of the evidence. The case is before us on the bill, answer, master's report, certain extracts from or condensations of evidence, the decision of the judge and the exceptions to rulings made by him. All the evidence material to the exceptions is in the record. The Page Company is the only excepting party and will be called in this opinion the defendant.

The plaintiff is an author and the defendant a publisher. Several books written by the plaintiff and published by the defendant achieved considerable popularity and a large number of copies were sold. The plaintiff has established a reputation as a writer of popular fiction, which is of pecuniary value to her. She is entitled to protect and preserve it. She wrote and the defendant published Anne of Green Gables and Anne of Avonlea before 1912. The chief character of those books was Anne Shirley, and she became widely known among readers of fiction. It was thought by both parties hereto that the presence of that character in any new book of the plaintiff would stimulate public interest and probably add to its financial returns. In 1912, after some correspondence, the plaintiff sent to the defendant the manuscripts of twenty-eight short stories. These all were copied in typewriting by the defendant and subsequently twelve were published in a book entitled Chronicles of Avonlea. In several of these stories more or less conspicuous references were made to Anne Shirley. Shortly afterwards, but in 1912, the defendant at the plaintiff's request returned to her the manuscripts of the stories not included in that book. At some time thereafter the plaintiff changed to another publisher. The relations between the parties, which hitherto had been cordial, became strained. In 1919 litigation ensued arising from their connection as author and publisher. After negotiations culminating in conferences extending over a number of days a written contract was made designed to end their business association through the purchase by the defendant from the plaintiff of her royalty rights in all her books published by the defendant, to settle all their disputes and to terminate the litigation.

A part of that contract provided for the publication by the defendant at its option of a new volume of short stories written by the plaintiff. The present controversy centers about the publication by the defendant in 1920 of that new volume of short stories under the title, Further Chronicles of Avonlea. In that publication the defendant used certain copies made by it in 1912 of the short stories then sent it by the plaintiff but not used in Chronicles of Avonlea, the volume published in that year. The manuscripts of 1912 were revisions of short stories earlier published by the plaintiff in newspapers and magazines.

With respect to the portions of the contract of 1919, relating to the short stories to be published by the defendant, the parties approached its framing and execution in these circumstances:

‘The plaintiff was sufficiently informed and knew in 1912, that the defendant then made typewritten copies of her stories. * * * And I find [says the master] that in January, 1919, she had forgotten that the defendant had made typewritten copies of the stories submitted in 1912, and had returned to her the original printed clippings. There was then no fraudulent concealment by the defendant that it had all, or at least nearly all, of these copies in its possession, though the plaintiff did not understand that it had them. * * * In the years that had then elapsed since 1912, the typewritten copies in the defendant's possession had not been a subject for its attention; but it knew that it had them, or should have them, and during the negotiation of the contract located all but one or two of them.’

During these negotiations the attorney for the defendant wrote to the attorney for the plaintiff a letter in which he referred (as one of the matters to be included in the settlement but not theretofore mentioned) to the ‘manuscripts' of short stories submitted by the plaintiff to the defendant in 1912 in connection with the publication of the Chronicles of Avonlea. He alluded to these stories as having been published at divers times in various papers and magazines, as not being copyrighted, and hence as being free for publication and sale by anybody without obligation as to royalties. Then occurs this statement:

‘The Page Company has typewritten copies or originals in its possession and may at some future time wish to publish those which they regarded as the poorer ones and which were not included in the ‘Chronicles.”

The follow further general suggestions and argument touching these short stories, their value or want of value, and their posible publication. This letter was read by the plaintiff before the contract of 1919 was signed, as appears from her testimony. She testified further in substance that from that letter she ‘gathered’ the conclusion that the defendant had made copies of the manuscripts which she had sent it in 1912.

The negotiations for settlement, says the master, ‘continued through a week, the parties personally participating under the guidance and advice of able counsel and, after repeated amendments under scrutiny of counsel for both the parties, both learned in the law of contracts, the agreement reached was embodied in the contract’ of 1919. That contract recited, as summarized by the master, ‘the previous publication contracts between the parties, and that the plaintiff has theretofore submitted to the defendant sixteen stories which have been published in sundry newspapers and magazines in Canada and the United States of America (stating their titles * * *), and that the parties have no exact knowledge * * * whether said stories are or are not under legal copyright of the United States of America or the Dominion of Canada, or elsewhere, and that the Page Company is desirous to publish as thereinafter provided, and as its own sole property, a book of short stories made up of all or part of the said stories, as the Page Company may determine, except ‘The Promise of Lucy Ellen’ and ‘A Chip of the Old Block.’' It then proceeds:

‘Now therefore in consideration of the foregoing the parties hereto agree as follows: The party of the first part assigns to the party of the second part such rights as she may have in the said stories (except ‘The Promise of Lucy Ellen’ and ‘A Chip of the Old Block’), subject to such rights, if any, as may be held by any magazines or publications in which said stories or any of them have appeared and the rights of any person or persons who may have taken out copyright thereon, but party of the first part makes no guarantee in this connection. Party of the first part, however, agrees that in as far as she may do so without convenanting regarding her title or present rights in the matter of said stories and each of them, that the party of the second part may make such publication and publish as its own sole property a book made up of said stories or part of the same, as by her, except that as two of the said stories (1) ‘The Promise of Lucy Ellen’ and (2) ‘A Chip of the Old Block’ have already been used in other form, and the incidents of a third story, to wit, ‘The Deferment of Janet’ have appeared in her book published by the party of the second part, called ‘Anne of the Island.’ * * * If the party of the first part shall find on her return to Canada that she has the fourteen of the sixteen stories aforesaid, after excluding ‘The Promise of Lucy Ellen’ and ‘A Chip of the Old Block,’ she shall send those manuscripts which contain her revisions of said stories, otherwise copies revised or not revised, as she may see fit. The party of the first part makes no guarantee of the literary merit of any of the said productions. The party of...