Opinion by
Mr. Justice McCollum,
The learned master found there was an oral agreement prescribing the form and quality of the book and fixing the price at which it should be sold. He said in his report that this agreement did not modify the written contract, but that it simply regulated matters as to which the latter was silent. He interpreted it however as fixing the selling price of every book published by the defendant under the written contract and as guaranteeing the sale of it at that price. ■ He accordingly charged the defendant at least $2.00 for every book sold directly to the trade and for every book sold by agents, and at least $3.00 for every book “sold for cash and through the mail.”
We think the learned master erred in his conclusion that the oral agreement was applicable to all the books the defendant
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might publish and dispose of under the written contract, and that the latter was not modified by the former. It seems to us that the oral agreement materially modified the written contract and was applicable only to the first edition. The evidence fairly warranted the finding of an oral agreement applicable and limited to the first edition but it did not authorize the finding of an agreement applicable to all boohs the defendant might publish and sell under the written contract. We may therefore construe the agreement found by the master as limited to the first edition, and, with this modification of the written contract, determine the rights of the parties thereunder. By the terms of the contract so modified the plaintiffs were entitled to an account of the publication and sale of the first edition, on the basis adopted by the master. But the oral agreement furnished no basis for an account of the publication and sale of the second and third editions. As to these the contract as written furnished the basis for an adjustment. On the basis thus furnished the plaintiffs are entitled to receive, first, $240 from the net profits arising from the publication and sale of the work, and after that to have one fourth of the net profits realized from the handling of the work by the defendant. All the expenditures connected with the publication and sale of the book must be borne by the defendant, and after the payment of $240, as above stated, three fourths of the net profits of the enterprise belong to him. In the absence of net profits the plaintiffs are not entitled to anything more than a cancellation and surrender of the contract, together with a conveyance to them of the defendant’s rights in the copyright.
The written contract did not prescribe the form, style or quality of the work or fix the selling price of it. These matters were left to the discretion of the publisher, whose interest in it would naturally impel him to use his best judgment and skill to make the venture a success. He was not required to continue the publication and sale of the book at a loss, but it was his duty to do all that lie reasonably could to promote the success of the enterprise.
The amount expended in the publication of the unsold books should be deducted from their market value and one fourth of the balance, if any, should be paid to the plaintiffs. As it is evident that the defendant does not regard the copyright or
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contract as of any value to him there can be no reasonable objection to the 4th and 5th paragraphs of the decree. In fact the learned counsel for the appellant mates no objection to them.
Decree reversed at the cost of the appellees, and record remitted with direction to state an account and enter a decree in accordance with this opinion.