Warren v. Stoddart

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

Joseph M. Stoddart was a book publisher, carrying on business in the city of Philadelphia, under the name of J. M. Stoddart & Co. In 1878 he undertook to reprint and sell in the United States a new edition, consisting of twenty-one volumes, of the Encyclopaedia Britannica, which A. & C. Black, of Edinburgh, Scotland, were then bringing out.

His plan was to sell the work by subscription only; the subscriptions were to be obtained by agents and canvassers, to whom certain territory was to be allotted. It was expected that the work would be printed and published at the rate of about three volumes per year.

Moses Warren was an agent in the city of Chicago for the sale of subscription books; that is, books sold only by subscription. On Feb. 24, 1877, he and Stoddart entered into a contract in writing, which is as follows:--

'PHILADELPHIA, Feb. 24, 1877.

'Agreement entered into this day between J. M. STODDART & CO., of Philadelphia, Pa., and MOSES WARREN, of Chicago, Ill.

'The said J. M. Stoddart & Co. agree to give the said Moses Warren a general agency for the sale of the American reprint of the Encyclopaedia Britannica in the following territory.'

Here follows a description of the territory, consisting of several States and parts of States, and a list of the prices at which Stoddart & Co. agreed to furnish Warren with the books in various styles of binding. The contract then proceeds:--

'Said J. M. Stoddart & Co. also agree to give to said Moses Warren the exclusive right to sell the Encyclopaedia Britannica within the above-named territory, during such time as said Warren shall faithfully perform his part of the agreement as hereinafter stated.

'1st, Said Warren agrees to use his best endeavors to promote the sale of the $03R Britannica in the above-assigned field.

'2d, To send to J. M. Stoddart & Co. a weekly report of the number of orders taken the week

'3d, To fill no orders outside of number of orders taken the week his assigned field.

'4th, To leave no volumes with booksellers to sell or display in their stores.

'5th, To furnish no volumes at less than the regular retail price.

'6th, To remit on the 7th day of the month one-half the amount of monthly statement for previous month, and to remit on the 26th day of the month the remaining one-half of said monthly statement.

'Witness our hands and seals on the day and date above mentioned.

'J. M. STODDART & CO. [SEAL.]

'MOSES WARREN.' [SEAL.]

Warren at once entered upon the performance of this contract, and by April 20, 1878, had obtained and reported to Stoddart subscriptions for 1,733 sets of the work, and had delivered to subscribers a portion of the volumes of the work which had been issued up to that time; on an average less than four volumes to each subscriber.

In the latter part of the year 1877 or early in 1878 the Scotch publishers of the Encyclopaedia and the house of Scribner & Armstrong, of New York, formed a plan to issue in this country an edition of the Encyclopaedia, to compete with the reprint of Stoddart, by striking off sheets from the original stereotype plates and engravings of the Scotch edition and sending them to this country to be bound and sold by subscription, on substantially the same plan as that which had been adopted by Stoddart to put his reprint into circulation.

Sometime in May, 1878, Scribner & Armstrong commenced negotiations with Warren, which resulted in a contract between them, dated May 14, 1878, by which they constituted him their agent, with the exclusive right to sell, until its publication was completed, their edition of the Encyclopaedia within the same territory substantially as that mentioned in the contract between Stoddart and Warren, and agreed to furnish him with copies of the Encyclopaedia at prices therein named. He stipulated on his part that from and after the date of the contract he would not canvass for any other Encyclopaedia, or any other edition of any Encyclopaedia, but that he 'should have the privilege of completing orders already taken for the reprint edition of Stoddart to all subscribers therefor.'

After the making of this contract Warren refused to canvass further for Stoddart's reprint edition. Whereupon Stoddart refused to furnish him, except for cash on delivery, the books with which to fill the orders which he had obtained for Stoddart's reprint edition.

Upon this point the evidence was as follows: On June 5, 1878, Warren sent an order to Stoddart requesting him to forward a certain number of books to be furnished subscribers, to which Stoddart replied by letter, dated June 6, 1878, that 'as to all future orders, for the present they will be filled when cash accompanies the orders.'

On June 10, 1878, Warren wrote to Stoddart as follows: 'I am desirous of delivering reprint fast as possible on my orders heretofore taken for same. If my orders for stock are filled they shall be paid for according to contract. Do you intend to fill my orders on that basis?'

To this letter Stoddart replied by telegraph as follows: 'Will fill order when cash is received in accordance with our letter of June 6.' There is no evidence that Stoddart ever refused to fill a cash order; nor was it pretended that Warren, after that date, ever sent an order to Stoddart with the cash to pay for the books ordered.

After the refusal of Stoddart to supply Warren with the books except for cash, the latter induced 1,253 of the subscribers to Stoddart's reprint edition to exchange the subscription to the reprint for a subscription to the Scotch edition, and he claimed that he expended in obtaining their exchange an average of four dollars for each subscription, making a total of $5,012. He also claimed that the Stoddart reprint volumes taken back from said subscribers were worth $12,206 less than the amount paid by him to Stoddart for them, and less than what he could sell them for in the market. Warren also claimed that he lost his profits on four hundred and eighty orders which were not exchanged, amounting to the sum of $20,073.

This suit was brought by Stoddart to recover of Warren the sum of $2,976.53 for books furnished him to supply his subscribers. It was not disputed by Warren that the amount sued for was due and owing from him to Stoddart. But Warren, by way of set-off, averred the making of the contract with Stoddart above set forth, and claimed that he had been damaged by the refusal of Stoddart to perform the contract, in the sum of $30,000.

Upon the trial of the case, the judge instructed the jury that the defendant's claim for damages could not be allowed as against the plaintiff's claim in the suit, and that the plaintiff was entitled to a verdict for the full amount sued for by him and admitted to be due; namely, $2,976.53. The jury returned a verdict accordingly, on which judgment was entered. This writ of error is prosecuted by Warren to reverse that judgment.

Mr. Van H. Higgins and Mr. Isaac N. Arnold for the plaintiff in error.

There was no opposing counsel.

Mr. JUSTICE WOODS, after stating the case, delivered the opinion of the court.