Noble v. D. Van Nostrand Co.

• Decision Date: 28 October 1960
• Docket Number: No. C--21,C--21
• Citation: 63 N.J.Super. 534,164 A.2d 834
• Parties: , 128 U.S.P.Q. 100 Mary NOBLE, Plaintiff, v. D. VAN NOSTRAND COMPANY, Inc., a Delaware Corporation, Defendant.
• Court: New Jersey Superior Court

Page 534

63 N.J.Super. 534

164 A.2d 834, 128 U.S.P.Q. 100

Mary NOBLE, Plaintiff, v. D. VAN NOSTRAND COMPANY, Inc., a Delaware Corporation, Defendant.

No. C--21.

Superior Court of New Jersey Chancery Division.

Oct. 28, 1960.

Elmer J. Bennett, Jersey City, for plaintiff (Carpenter, Bennett & Morrissey, Jersey City, attorneys).

Frank C. O'Brien, Newark, for defendant (Pitney, Hardin & Ward, Newark, attorneys).

COLLESTER, J.S.C.

The plaintiff Mary Noble seeks in interlocutory injunctive order to restrain the defendant D. Van Nostrand Company, Inc., a publishing corporation, from publishing a book entitled 'Your Garden in the South' written by one Hamilton Mason. Both Mary Noble and Hamilton Mason reside in Jacksonville, Florida, while the defendant's main office is located in New Jersey. Mr. Mason is not a party in this action.

Evidence for and opposed to the motion was presented by affidavits, depositions and testimony. I find the pertinent facts to be as follows.

In 1950 the plaintiff became acquainted with Hamilton Mason and thereafter a close friendship developed. Miss Noble was an established author on the subject of horticulture and gardening and had written books on the subject, several having been published by the defendant. Mr. Mason was likewise interested in the subject.

After their friendly relationship had progressed for about three years, Mr. Mason suggested that they jointly write a book on the subject of gardening in the South to which Miss Noble agreed. In December 1953 Miss Noble communicated with the defendant suggesting that the latter consider publishing the book after it was written. A proposed outline and a sample chapter, jointly prepared by Miss Noble and Mr. Mason, were submitted and on December 14, 1954, a contract was entered into whereby Miss Noble and Mr. Mason were to coauthor the book and the defendant would publish the same. The tentative title was 'Gardening in the South.'

There then commenced a period of about five years of extensive research conducted by Miss Noble and Mr. Mason in preparation for writing the book. Innumerable plants and flowers were listed and ultimately set forth in charts. Zone areas throughout the South were established where plants and flowers could be readily grown. Field trips and the study of various technical papers and reference works were undertaken, and written notes pertaining to the plants and flowers and groups thereof were prepared. All of the work undertaken was a joint effort of Miss Noble and Mr. Mason except the preparation of the written notes. In preparing the latter the work was divided up, Mr. Mason preparing the notes on tropical plants, Miss Noble on the hardy plants, and thereafter these notes were interchanged. Miss Noble testified that although the notes were prepared individually, they were the product of the joint effort in their research.

In the spring of 1958, after a conference with Mrs. Harriet Van Pelt Wilson, Garden Editor of the defendant, at Mrs. Wilson's suggestion, the proposed title to the book was changed to 'Your Garden in the South.'

In 1958 personal differences arose between Miss Noble and Mr. Mason which steadily grew worse. In January 1959 plaintiff wrote a personal letter to Mrs. Wilson advising her of her problem and her inability to collaborate further with Mr. Mason. Mrs. Wilson replied recommending that she write seeking a release of defendant's contract and suggesting that she write a book alone on the subject of camellias. In early March 1959 the plaintiff met Mrs. Wilson in New York and stated that she intended to continue her collaboration with Mr. Mason.

On March 18, 1959 the plaintiff and Mr. Mason came to a parting of the ways and to and end of the collaboration. Plaintiff sought and subsequently obtained a release of their contract with the defendant.

After the end of the collaboration Mr. Mason contacted Mrs. Wilson relative to writing a book on his own on the subject of tropical plants stating he desired to salvage something from the 'individual work' completed thus far. He was advised of defendant's interest but informed that the material would have to be 'rigidly his own.' After further conferences with Mrs. Wilson it was agreed that he would write his own book on southern gardening using the title 'Your Garden in the South' which had been originally chosen by Mrs. Wilson for the proposed book by Miss Noble and Mr. Mason. A contract was entered into on June 12, 1959.

When plaintiff learned of this venture in August, 1959 she objected to defendant's publishing Mr. Mason's proposed book. She contended that it necessarily would be based upon their joint research. She indicated that both she and Mr. Mason had drawn upon the joint material for their individual newspaper and magazine articles, but she definitely opposed his proposed publication in a book form.

In November 1959 plaintiff's father, a Florida attorney, communicated with defendant on the plaintiff's behalf and was advised by defendant's president that he understood Mr. Mason's book was not the direct outgrowth of a collaboration but was an original work. Mr. Noble thereupon wrote defendant as follows:

'Since your letter states that it was your understanding that the material is wholly original, we shall have to wait until publication to compare the book as published with the original work done by the two of them.'

Thereafter upon the submission of Mr. Mason's manuscript, the defendant proceeded with its plans to publish the book. Various advertising ventures were undertaken; circulars were mailed to various book distributors; the book was listed in the defendant's catalogue indicating it would be available in October 1960 and other expenses were incurred in the preparation of the book itself. Over $10,000.00 has already been expended by the defendant and many advance sales have already been effected.

The evidence presented shows that the written text prepared by Mr. Mason, now in page proof form, was entirely the language and creation of Mr. Mason. Only one chapter on the subject of bulbs had been prepared for the proposed Noble-Mason venture, and it is undenied that Mr. Mason's writing on this subject is completely different. The outline of chapters contained in the Mason book differs from that of the proposed joint venture. The zone areas contained in Mr. Mason's book differ from the zone areas originally planned for the joint venture. The charts in Mr. Mason's book differ from the original charts by wording and arrangement although covering a great deal of the basic material contained in the joint project charts.

The evidence shows that Mr. Mason wrote his book in approximately a five-month period. While he was probably able within such period to research certain material contained in his book and to prepare the manuscript, the conclusion is inescapable that in writing his book Mr. Mason drew upon the material which had been part of the joint venture with Miss Noble. Certainly he drew upon the material he had individually and jointly researched with Miss Noble, and it is doubtful that he did not also draw upon some of the material assembled by the plaintiff. To eradicate from his mind information obtained through the joint study Mr. Mason conducted with Miss Noble is incredulous. It would involve a brainwashing which is undoubtedly impossible.

Plaintiff contends that if Mr. Mason's book is published her professional reputation and earning power will suffer irreparable damage and an action for an accounting for royalties would not properly compensate her. She contends that Mr. Mason could not have written his book without drawing upon the information contained in their joint research and that he should be restrained from such use. She further claims that the defendant conspired with Mr. Mason to induce him to write the book knowing he would use material jointly researched with her and having done so the defendant comes into this court with unclean hands.

The defendant denies the alleged conspiracy asserting that in dealings with Mr. Mason he was instructed that the material contained in his book must be rigidly his own. The defendant contends that the evidence clearly shows that Mr. Mason's book was not based on any writings of Miss Noble, and that plaintiff has no right to restrain Mr. Mason from using their joint research data. It is further contended that both Miss Noble and Mr. Mason used their joint research material for their individual newspaper articles, magazine articles and lectures without objection and with implied consent to do so. The defendant contends that by using the joint material for her own newspaper and magazine articles, the plaintiff comes into this court with unclean hands when she objects to publication by the defendant of Mr. Mason's book. Finally the defendant asserts that the plaintiff is guilty of laches, since, although she knew defendant was going to publish Mr. Mason's book in August 1959, she did not institute this injunctive proceeding until August 1960, after defendant had expended several thousands of dollars and now has the book printed in page proof form.

It is well established that an interlocutory injunction should not issue if the plaintiff's asserted rights are not clear as a matter of law. Citizens Coach Co. v. Camden Horse R. Co., 29 N.J.Eq. 299 (E. & A. 1878); Coles v. City of Newark, 95 N.J.Eq. 73, 76, 121 A. 782 (Ch.1923), affirmed 95 N.J.Eq. 775, 123 A. 926 (E. & A. 1923); General Electric Co. v. Gem Vacuum Stores, 36 N.J.Super. 234, 115 A.2d 626 (App.Div.1955).

In the instant case it is undisputed that we are not concerned with the piracy of literary property owned by the plaintiff in the form of an unpublished manuscript. It is clear that plaintiff and Hamilton Mason jointly undertook an extensive research of the subject of plants and flowers and their growth in certain areas throughout the South. It was the compilation of data in preparation for the...