Harris v. Sharpless

Oblady, J.,

dissenting:

When the plaintiffs submitted to the defendant the proof of the catalogue cover design, and received his reply that “ the print as now made will be satisfactory, if the covers furnished will be equal to these in good effect,” they had the right to believe that the defendant had carefully examined and fully approved of the proof as it was at that time. They now recover the full price for 200,000 covers, with the unauthorized addition of “ Geo. S. Harris & Sons, N. Y.” imprinted thereon. They admitted on the trial that “ they are not the same ” as the proof, and that they added to the accepted proof their own advertisement without giving the defendant an opportunity to accept or reject the changed design. The sole object of this addition was to advertise themselves as lithographers at the expense of the plaintiff. His object was to advertise “the Sharpless Cream Separator; ” such the proof purported, and so the covers should have been printed. For this he agreed to pay a higher rate so as to secure from these plaintiffs a special, exclusive and personal catalogue cover. They surreptitiously added to the work for which they claim he should pay them their name and address with a sample of their work. This was not embraced in the contract; as to this the minds of the parties never met. Under authority of Gillespie Tool Co. v. Wilson, 123 Pa. 19, and Hartman v. Meighan, 171 Pa. 46, I think the contract was entire, and that the design was changed by plaintiffs for their own mercenary purposes, and that this ought to prevent a recovery.

W. D. Porter, J., concurs.