Holt v. Zwisohn

Plaintiff sued to recover a balance due for printing a certain work on physiology, whereof Lazarus W. Zwisohn was the author., Plaintiff’s original conversation was with one Lowe,. about July IQ, 1904, when the latter told him he had not facilities for the printing of the work, and would like to have plaintiff finish it. Thereafter, plaintiff called on Zwisohn and talked over the matter with him, discussing the size of the page and similar topics and mentioning to him the price already agreed on with Lowe. Thereafter, the work was completed, and Lowe paid for fifty pages of the work done; and, for the remaining eighty-eight pages, with costs of changes and corrections, plaintiff brought suit against Zwisohn and obtained a judgment therefor. Upon the examination of said Zwisohn and of his wife, the defendant herein, in proceedings supplementary to execution, it was disclosed, and for the first time brought to plaintiff’s notice, that Esther Zwisohn, the' defendant herein, was the real owner of the copyright on said book and of all rights thereunder, and had acquired the same prior to plaintiff’s printing of the book upon her promise to pay the costs of such printing; and, further, that in the dealings with plaintiff Zwisohn was only his wife’s agent. Thereupon, plaintiff sued Esther Zwisohn as the undisclosed principal in the transaction. There is but one error assigned which requires examination. Plaintiff testified that, when' Lowe first called upon him, he had with him the agreement in writing between Lowe and Zwisohn; that the same was exhibited to him, plaintiff, and he read and understood it; that he charged Lowe for fifty pages of the work because the agreement so provided; in fine, that his apportionment of the cost between Lowe and' Zwisohn was based entirely on that written agreement and his interpretation .of its terms. He explicitly referred to the agreement, identified it as the same one he had based his calculations on, and Zwisohn was cross-examined by the plaintiff’s counsel as to its contents, five questions being asked, him ..therqupon and answered. Yet, when the agreement was twice offered in evidence by defendant’s counsel, it was excluded and exception duly taken. This was error for which the judgment must be reversed. The *578agreement was material to the issue, having been exhibited to and read by plaintiff before he made any contract for the work. It was accepted and acted on by plaintiff as the method of apportioning the cost between Lowe and Zwisohn. Defendant was entitled to have it before the court in its entirety and should not be bound by plaintiff’s interpretation of it, nor-by the portion of it elicited on defendant’s cross-examination.

Gildersleeve and Dugro, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.