Wales v. Graves

• Decision Date: 27 October 1899
• Citation: 72 Conn. 355,44 A. 480
• Court: Connecticut Supreme Court
• Parties: WALES et al. v. GRAVES.

44 A. 480

72 Conn. 355

WALES et al.

v. GRAVES.

Supreme Court of Errors of Connecticut.

Oct. 27, 1899.

Appeal from court of common pleas, Hartford county; Epaphroditus Peck, Judge.

Action by Linus B. Wales and others against Charles B. Graves. From an order of the court of common pleas reversing a justice's judgment, plaintiffs appeal. Affirmed.

The third paragraph of the second defense of the answer was as follows: "Said work and books so tendered to the defendant as aforesaid, were not a history covering the departments named in said exhibit, written by some of the most prominent public men and writers of established reputation for learning in said departments, but were very largely composed of cheap, commonplace sketches of individuals of little or no prominence, written by themselves or persons of little or no ability or notoriety, and was very largely composed of portraits of individuals of no historical importance or value, who paid for the insertion of said portraits large sums, for the purpose of advertisement; and was also further composed of cheap, commonplace advertisements of certain business concerns, written by people of little or no ability or prominence." The issue raised by the plaintiffs' reply denying these allegations was found by the court in favor of the defendant. The court also found the following facts:

"(1) The plaintiffs D. H. Hurd & Co. are a partnership located in the city of Boston, and are publishers of books:

"(2) On or about September 27, 1895, the defendant, signed a subscription contract with said Hurd & Co., in the words following: 'We, the undersigned, do each hereby agree to take of D. H. Hurd & Co. one copy of their work entitled "The New England States: Their Constitutional, Educational, Commercial, Professional, and Industrial History," illustrated, to be published in three or more volumes, for which we agree to pay them or their order the sum of thirty dollars for the complete work, on delivery of same at our residence or place of business, the work to be delivered as soon as completed.

Name.

Date of Order.

P.O. Address.

C. B. Graves, M. D.

Sept. 27, 1895.

New London, Conn.

"(3) At the time of taking said subscription, said Hurd & Co., by their agent fully authorized thereto, made certain representations to the defendant as to the character of the work to be published, and also showed him a printed prospectus, describing the proposed work, and giving a list of the titles and authors of certain articles already engaged. These titles were of articles which would be valuable and important, if properly treated, and the authors were for the most part men of eminence and authority in the fields assigned to them.

"(4) The representations made orally and in said prospectus were, in brief, that the work would be a first-class history of the New England states in the respects mentioned in the title, written by men of eminence and learning in the several departments to which the articles written by them should relate, and that the articles and authors mentioned in the prospectus were a fair sample of the articles to be contained in the published work, and of the authors who would write them.

"(5) It was admitted by both parties that these oral and printed representations were the basis of the contract between the parties.

"(6) In June, 1897, within a reasonable time after its completion, Hurd & Co. delivered to the defendant, at his residence, a book in four volumes, bearing the title given in the subscription contract, as a fulfillment of the contract on their part.

"(7) The defendant, after examination of the volumes delivered, refused to accept them, and returned them to the plaintiffs Hurd & Co. He never paid the contract price, nor any part thereof.

"(8) The articles announced in the prospectus are all included in the published work, with some unimportant modifications of title and changes of authorship, and there are a few other articles of the same general character. These articles are suitable to be included in such an historical work as that contracted for. To these are added two other classes of articles: First, biographies of individuals, with portraits; and, second, detailed list of existing business houses in different sections, with descriptive accounts, generally of a eulogistic character, in some cases so much so that they resemble advertisements rather than historical description. There are also over 300 portraits on heavy plate paper. The work contains about 1,650 pages of properly historical characters, about 950 pages of texts of the two classes above mentioned, and the bulk of the latter, with the portraits, is about equal to that of the former.

"(9) The subjects of the biographical articles and portraits were not selected for their historical importance, but because of the payment by them of various sums, ranging from $225 to $500, for their inclusion, and, with a few exceptions, they were not men whose lives and portraits should have been included in a first-class historical work.

"(10) The business houses selected for description were not so chosen as to make this class of articles a fairly proportioned description of either the historical development of, or the present status of, the business of New England. By what method or for what reasons the selection was made did not appear in...