Clemens v. Press Publishing Co.

Lehman, J. (dissenting).

The plaintiff, on August 3, 1909, sold a story to the defendant for publication in the World. FTothing was stated as to whether the article was to be printed with the plaintiff’s name, but both parties appear to have assumed that the name was to be added to the article. The article was placed in type; but, before it was published, the defendant notified the plaintiff that it must be printed as an unsigned article, and the plaintiff apparently assumed the attitude that the advertisement to be derived from the publication with his name was an important part of the agreement and refused to permit its publication without his name. The attitude of the parties points clearly to the view that they regarded the contract of August third as either incomplete or ambiguous in regard to the question of the right to demand that the article be printed with the plaintiff’s signature. Upon the whole evidence I am brought to the conclusion that the negotiations after the third day of August show an intent on both sides to consider this question de novo and to regard the contract of August third either as incomplete or rescinded if the parties failed to come to a conclusion. If this contract was incomplete, obviously the plaintiff has no right of action; if the contract was complete and thereafter rescinded because both parties were doubtful of their rights, the rescission was a compromise of doubtful rights and, therefore, a contract founded upon a good consideration. I find.no insuperable objection to the view that the contract was re*187scinded because the plaintiff did not return the twenty-five galley proofs furnished him by the defendant and the defendant did not return the original manuscript furnished by the plaintiff. The defendant’s editor testified that the galley proofs were furnished as a courtesy for distribution to other newspapers; and, with copies of the story in his possession, the plaintiff may well have considered the manuscript as of no value. Upon a rescission of a contract by one party, not with the consent of the other but in reliance on a legal right to rescind, the party rescinding must, of course, return the consideration; while, upon a rescission by mutual consent, the necessity for the return of the consideration depends upon the mutual understanding of the parties.

I think that the judgment should be affirmed.

Judgment reversed and new trial ordered.