Bonn v. Steiger , 28 N.Y. Sup. Ct. 219 ( 1880 )

Baebett, J.:

I am unable to concur will) my brother Beady. The plaintiff, .it is conceded, has a right to an accounting. If such accounting shows that the defendant has sold, in each year, more than one thousand copies of the wprk, there wTill, of course, be no difficulty. • But if less, there seems to me to be no good reason why the controversy should not be ended at once by charging the defendant with the full one thousand copies which he has agreed to take. By the oral agreement, he became, not only the sole agent, but the printer. It was his business to supply the market. He was to print all that was necessary, but, at all events, to take on an average at least one thousand copies annually. It is not a'question of damages for the breach of the contract, but of the right to charge the defendant with the full one thousand copies as an incident to the accounting.

This, it seeihs to mo, was the plaintiffis clear right, flowing from the contract. lie was not required to request the defendant to print the one thousand copies, nor was lie bound to make any demand or tender. The contract was plain .both in letter and spirit. The defendant thereby said in substance : “I will (no matter how few volumes may actually be disposed of after the completion of the work) charge myself with one thousand copies annually, and account to you as though that number had actually been sold.” There is no practical difficulty in here applying these conclusions. The court has full jurisdiction of the subject and can give complete relief. This was always the rule in courts of equity. To illustrate. If A. agrees to give B. five per cent, of the profits of his business, guaranteeing, however, $1,000 per annum, and B. sues A. for an accounting, will it be said that a court of equity, on finding that the five per cent, amounted to but $900, cannot grant B. the guaranteed $1,000? Hero, the ease is stronger, because the defendant is only responsible for an average of one thousand copies annually. Suppose one year tlie sales exceeded one thousand copies, another year amounted to just that number, and a third year, to less. Can it be possible that a court of equity will limit the accounting to the actual sales, and drive the plaintiff to a common .law action to recover for the average one thousand copies, less those accounted for in the equity suit ? Such a course would not have been adopted under the chancery system. Still less should it be where law and equity are blended. For these reasons, I thinlc there should be a new trial. I think, too, that there was error in the findings, in not strictly and literally, following the complaint. No testimony was introduced, and the case was tried solely upon an admission that the allegations of the amended complaint were true. There should, therefore, have been no deviation from these allegations, either affirmatively or negatively.

The motion for a new trial should be granted, with costs.

Davis, P. J., concurred in the views of Bareett, J.