Even the matter of fact attitude of the law does not require us to consider the sale of the rights to a literary production in the same way that we would consider the sale of a barrel of pork. Contracts are to be so construed as to give effect to the intention of the parties. The man who sells a barrel of pork to another may pocket the purchase price and retain no further interest in what becomes of the pork. While an author may write to earn his living, and may sell his literary productions, yet the purchaser, in the ab*208sence of a contract which permits him so to do, cannot make as free a use of it as he could of the pork which he purchased. The rights of the parties are to be determined primarily by the contract which they make, and the interpretation of the contract is for the court. If the intent of the parties was that the defendant should purchase the rights to the literary property and publish it, the author is entitled, not only to be paid for his work, but to have it published in the manner in which he wrote it.' The purchaser cannot garble it, or put it out under another name than the author’s; nor can he omit altogether the name of the author, unless his contract with the latter permits him so to do.
The position óf an author is somewhat akin to that of an actor. The fact that he is permitted to have his work published under his name, or to perform before the public, necessarily affects his reputation and standing, and thus impairs or increases his future earning capacity. As I interpret the contract made between these parties, their intent was that the plaintiff should sell his work to the defendant, and the defendant was to publish it under the author’s name. The action of the parties indicates the interpretation which they placed upon it. When the plaintiff presented his story to the defendant, it contained his name, and the defendant offered him $200 for it if he would reduce it to 20,000 words. Plaintiff accepted the offer, reduced the story as requested, and returned it to the defendant with his name upon it. The defendant furnished the plaintiff with 25 galley proofs of the story, and it is significant that in the proofs it had the plaintiff’s name printed upon it. These circumstances show that, as the parties themselves interpreted the contract, it required the publication of the author’s name. The plaintiff proved his case. He had the right to insist that the story should not be published, except under his name. The fact that he insisted upon this right does not justify the defendant in withholding payment to him of the amount due under the contract. The failure to publish the story as agreed was a breach of contract by the defendant.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.