After a careful examination of the testimony in this case, I fail to find any evidence of the express oral agreement alleged in the complaint and found by the referees, to wit, that upon the execution of the agreement in writing mentioned in the pleadings, the defendants, in consideration that the plaintiff would enter into the same, and would deliver to them the materials, plates, drawings, maps and other results of the labor theretofore performed by the plaintiff in connection with the publication of his work entitled “ Smith’s Hew Geography,” promised the plaintiff to pay and reimburse him for all the moneys and expenses, which at the time of the execution of the said agreement the plaintiff had laid out and incurred, and which he might thereafter necessarily expend or incur in and about the preparation of the said work for publication. There is no evidence of any express oral agreement whatever, made at the time of the execution of the written contract, and none of an express oral agreement made at any time, in consideration that the plaintiff would enter into the written contract and furnish to the defendants the plates and other materials which he had theretofore procured. . If, therefore, the plaintiff’s right to recover depended upon an express agreement of the import above stated, the judgment appealed from could not be upheld.
But there is ample testimony in the case from which an agreement by the defendants to pay the plaintiff for the plates and other materials referred to may be implied, unless such implication is precluded by the terms of the written contract—a point that will be considered presently. It is proved *401without contradiction, that the plaintiff furnished the defendants with plates and other materials, at their request, and that the defendants used them in the publication of the work which by the terms of the written agreement they undertook to publish “ at their own proper expense and cost.” It is also proved that after such materials were furnished, the plaintiff rendered an account of them to the defendants, at the prices paid or incurred therefor by the plaintiff, and the testimony warrants the conclusion that the defendants repeatedly admitted their liability to pay the plaintiff the actual cost of the materials. They objected, however, that the amount of such cost was overcharged in the account rendered, but the proof shows that there was no ground for the objection.
I am of opinion that the written agreement, properly construed, does not cover the subject matter of the implied contract, to wit, the plates” and other materials theretofore procured by the plaintiff in preparation for the publication of the work. It is, in brief, an agreement by the plaintiff that he has a work entitled “ Smith’s New Geography,” for which he is entitled to a copyright, that the defendants shall have the sole right to publish and vend it, and that he will take out copyrights for it as often as the law will permit, and will revise and amend it from time to time. The defendants, on their part, promise to publish the work at their own proper cost and expense, and to pay to the plaintiff ten per cent of the net wholesale price for each copy published. There is nothing on the face of the agreement to show that the parties intended that the plaintiff should furnish to the defendants the materials he had procured in preparation for the publication of the work. The agreement contains no such stipulation, in terms, and it does not refer to such materials in any way. There is no proof in the case that as matter of usage among publishers and authors it was incumbent on the plaintiff, in the absence of an express agreement upon the point, to furnish to the defendants the plates and *402other materials of the character referred to, needed in or adapted to, the publication of the work. If we look outside of the written agreement to learn the intention of the parties on •that subject, we find that the evidence of such intention con-' sists mainly of the dealings of the parties respecting such materials subsequently to the making of the agreement, and that it preponderates strongly, as has already been said, in favor of the position that the defendants recognized their liability to pay the plaintiff for the materials furnished by him at their request. In fine, under the written agreement, the plaintiff was not bound to furnish the defendants the materials he had procured, and the latter were not required to accept them. If, however, they accepted them and used them in the publication of the work, there is nothing in the written agreement to repel the presumption that they undertook to pay for them.
[New York General Term, April 3, 1867.It being clear, then, from the testimony before us, and the law applicable to it, that the plaintiff is entitled to recover upon an implied agreement, to the full amount reported by the reférees, the judgment should not be reversed, although the report is based upon an express agreement not proved. The relief granted is not inconsistent with the case made by the complaint, and is embraced within the issue litigated on . the trial. (Code, § 275. 2 Kern. 336. 16 N. Y. Rep. 263.)
The judgment should be affirmed.
Leonard, Ingraham and J. C. Smith, Justices.]