Ross v. Esquire, Inc., 134.

• Decision Date: 10 January 1938
• Docket Number: No. 134.,134.
• Parties: ROSS v. ESQUIRE, Inc.
• Court: U.S. Court of Appeals — Second Circuit

94 F.2d 75 (1938)

ROSS v. ESQUIRE, Inc.

No. 134.

Circuit Court of Appeals, Second Circuit.

January 10, 1938.

David Haar, of New York City, for appellant.

Duncan & Mount, of New York City (Frank A. Bull and John H. Galloway, Jr., both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Plaintiff appeals from a judgment entered on a jury's verdict of $500 in his favor. He charges errors in the exclusion of evidence, and in the court's instructions to the jury which prevented him from receiving full damages for the injury due to a libel published by the defendant.

The action is based on the publication by the defendant in its issue of "Esquire" for August, 1936, of an article written by one Scully entitled "Now It Can Be Sold." The alleged libel reads:

"An advance royalty check for $2,500 arrived by cable from New York. It came to Vittel and I had it forwarded on to Harris in Nice. According to our contract I was to be paid 20 per cent. of that immediately.

"Instead of $500, a thousand francs, or about $39, did arrive, with the explanation that only $2,000 had come through, as Arthur Ross, the lawyer, had extracted $500 for past debts before cabling the money from New York. Already, I observed, I was being rouled at both ends.

"My contract with Harris read that I should be paid directly from the publishers, but everybody was so absent-minded they forgot to insert that clause in the contract. I must have been absent-minded too, as I had no ambulance-chaser of my own on the case."

The plaintiff is a lawyer, 30 years in practice, of culture and good reputation, and enjoyed an excellent professional employment. The article in which the libelous passages, as to the plaintiff, appeared, need not be here presented in its entirety. It is sufficient to say that the writer described himself as "Variety Mugg," and was correspondent for "Variety" in Nice, France, and tells in his article that he "ghosted" the biography of George Bernard Shaw, which was ostensibly written by Frank Harris, a noted writer. "Esquire" published the article in full. Scully reveals that the purpose of publishing the story was to get revenge on Shaw because of "a two year old grudge" that he was "nursing" against him. He tells how the publication of the article was so timed that the August "Esquire" would reach London just in time for Shaw to read it on his 80th birthday, thus giving "a little birthday token." He announced not alone that he wrote the book, but how he wrote it, and he uses over 7,000 words to tell his story. The original article which appeared in "Esquire" was illustrated on one page by a bust of Shaw in caricature and on another by a sketch of Scully about to don a mask of Frank Harris. The publishers of the book were in New York and were boyhood friends of Scully. Scully drew a contract between Harris and himself whereby Scully was to receive 20 per cent. of the royalties and Harris 80 per cent. Later he discovered that he had given himself 80 per cent. and Harris 20 per cent. The next day he reversed the percentages and tried to persuade Harris to give him 30 per cent., but Harris insisted that he had to pay plaintiff, his New York lawyer, 10 per cent., and for that reason he could not pay more than 20 per cent. Scully then pointed out that in such case he would be paying plainti...