Burr v. American Spiral Spring Butt Co.

The referee placed his decision solely upon the ground, that the plaintiff had not shown that the book mentioned in the contract had been sold by the plaintiff’s authorized agents in every State in the Union and in Canada, nor that the numbers of said book mentioned in their complaint had been sold by subscription through their authorized agents, nor that any number of books had been so sold by subscription by their authorized agents. It is evident that the referee has substituted one of the recitals in the contract for the operative part thereof. The contract after stating that “whereas the plaintiff's are about to publish a book, etc., etc., which will be sold by subscription through their authorized agents in every State of the Union and in Canada,” and after reciting other facts not material to the question before us, provided that in consideration of the plaintiff1’s incorporating in said book an article to occupy a space of six pages as reading matter, containing the names of the defendants, their biography, etc., and of publishing the same in the forthcoming editions of said book; the defendants agreed to pay the plaintiff’s the sum of two cents for six pages of the said article for each and every copy of said work sold by the plaintiffs. There is certainly nothing here that makes the sale by authorized agents, or a sale in every State of the Union and in Canada, a condition precedent to the liability of the defendants. Has the recital the effect of imposing on the plaintiffs such ■ a condition, or of extending their obligation beyond the words of the contract ? I apprehend not. No authority for such a proposition has been cited. The general rule is that, whore the words in the operative part of an instrument are clear and unambiguous, they cannot be controlled by the recitals. General words will in some cases be restrained by recitals, but in the interpretation of instruments recitals are used only for that purpose, and for the purpose of discovering the intention of the parties, and of fixing the true meaning of doubtful words. (Walsh v. Trevanion, 15 Q. B., 733, 751; Beswick v. Swindells, 3 A. & E., 868, 881; 1 Chit. Cont. [11th Am. ed.], 120 et seq.) There is no ambiguity in the words used in the operative part of the contract in this case. *191The defendants agreed to pay two cents for six pages of the said article for each and every copy of the book sold by the plaintiffs. Sales by the plaintiffs personally are clearly comprehended in these words. Indeed such sales are the only kind designated by the actual meaning of the words, and yet the construction put on the contract by the referee would exclude them. Nor is thex-e any reason to suppose that the parties intended the restricted constructioxx adopted by the referee. The interest of both parities consisted in having the greatest number of books sold — that of the plaintiffs in order to realize the profits of publishers, axxd that of the defendants in order to secure the benefits of an extensive advertisement; hence the agreement that payment should be made ixx proportion to the number of sales. If the mode or place of selling had been in the contemplation of the parties as a substantive stipulation, it would have been appx’opriately expressed. The recital, probably, was inserted to show that the plaintiffs ixxtended to sell the book by subscription, and to employ agexxts in every State and in Canada to procure subscriptions, -but I see no ground whatever for the idea that the defendants were to be liable oxxly for sales made by subscription obtained by their agents, or that no liability against them was to accrue unless sales were made in every State axxd in Canada.

For the error stated the judgment must be reversed, and a new trial at circuit granted, with costs to abide the event.

Judgment reversed, and new trial granted at circuit, costs to abide event.