In June 1956, the plaintiff, who was an expert on jade, entered into a contract with the defendants whereby an article on jade to be written by him and to appear under his name was to be printed by the defendants in their magazine. On receipt of the plaintiff's article the editor of the defendants' magazine sent it for revision to a free-lance journalist who changed the title and conclusion and made considerable stylistic alterations and certain alterations of fact. The plaintiff refused to allow the article as revised to appear under his name and was unwilling to agree with the defendants' intention to print it with or without his name. Following completion of his original article the plaintiff had submitted certain alterations which he wanted made. In an action for specific performance of the contract and damages for breach of contract:-
Held, (i) that the plaintiff was amply justified in refusing to allow publication under his name of the article as revised and did not therefore repudiate the contract; (ii) that the court could not order specific performance of the contract because the exact terms of the article were never agreed between the parties, but the plaintiff was entitled to damages for breach of contract, as through the defendants' failure to publish the article he had lost an opportunity of enhancing his reputation as an expert on jade.
In this action the plaintiff claimed specific performance of a contract made between him and the defendants, and damages for breach of contract.
The facts are taken from the judgment.
The plaintiff, Louis Joseph, was a dealer in antiques, carrying on business at 28, Knightsbridge. He made a speciality of jade carvings, in which he had been interested all his life, his father having been engaged in the like trade before him. He was a considerable authority on this subject, having talked on it on the television, but he had never written about it. The defendants' magazine "The Connoisseur" was founded in 1901 and occupied a prominent position in its own line. It published nine numbers a year, priced at ten shillings in England and two dollars in the United States, and was an elaborate production, the advertising part being about equal to the editorial part, the illustrations in both being of much the same kind and quality. It appeared from the evidence that all the prominent London art dealers advertised in this publication, and that to take a page might cost 100 pounds, in addition to the cost of the block for producing the illustration. The plaintiff had from time to time so advertised his wares. The defendants' advertising manager, one Law, was well acquainted with the plaintiff and was in his shop about the end of June 1956, trying to sell advertising space. The plaintiff had recently acquired two green jade plaques which he showed to Law, who tried to persuade him to advertise them with a coloured illustration which would have cost the plaintiff about 175 pounds. The plaintiff did not accept this and inquired whether he could not have his illustration in the editorial part of the magazine. At this point there was a conflict of evidence between the plaintiff and Law, the former saying that Law offered to insert his illustration in the editorial part of the magazine and to procure him what he called a "write-up" by the author in addition, based on material to be supplied by the plaintiff, at a cost to him of under 100 pounds for the preparation of the necessary photograph and block. Law, however, said that this offer was made on the next day and was agreed to by the plaintiff, and this was in effect the contract alleged in the defence. The plaintiff agreed that there was a second interview on the following day but said that at this interview he refused Law's offer of an editorial write-up which had already been made to him on the day before, but accepted an offer by Law that the proposed illustration should occupy one page in the editorial part of the magazine and should be faced on the other page by a full-page article to be written by the plaintiff and appear under his signature.
On September 1 the plaintiff received the following letter from one Ramsey, the editor of the magazine:
"Dear Mr Joseph, I believe that you are now nearly ready with the text in reference to your jade screen. I can use up to 500 words-at some time within the next two weeks please."
This surprised the plaintiff, who had been told that the full-page article would run to at least a thousand words, and he rang up Ramsey on September 8. The plaintiff said that he explained what the bargain was, namely, that he should have a signed article of a thousand words. He said that Ramsey expressed surprise that this was the bargain made, but eventually agreed. His Lordship found that there was a bargain made in June, as the plaintiff said, between himself and Law, and ratified by Ramsey in September.
By September 17 the plaintiff had written his article and gave it to Law, who took it to Ramsey. The plaintiff, however, had second thoughts, and on September 18 he asked for his first version to be destroyed and supplied a new one. It was at this time intended that the article should appear in the October issue, but this intention was changed to November. On receipt of the second article Ramsey, who did not like its style, sent it to a journalist called Staal for revision. He was a free-lance journalist writing about art objects and having some knowledge of jade, but no pretensions to be an expert. He returned the article on September 23 to Ramsey with the following covering letter:
"Dear Gwynne, Herewith the revised jade article, which I hope you will think an improvement on the original. I have not changed the general plan, but have translated it from Knightsbridge-ese into tolerable English, and excised as many errors of fact as I could find."
On September 26 the plaintiff again became dissatisfied with his second attempt and produced a third. This had small corrections of fact or opinion and it was never considered by Ramsey, who (as his Lordship held) was not bound to consider it, having already started to deal with the article of September 18. On October 15 Ramsey sent to the plaintiff, set up in print in the form in which it would appear in the magazine, the article revised by Staal. The covering letter was in these terms:
"I enclose herewith a proof of your jade article, which I have adjusted in certain places, and would be much obliged if you could arrange for this to be returned within a post or two."
This was a shock to the plaintiff and he at once wrote the following letter:
"As soon as I received a proof this afternoon sent under cover of your letter of even date, I unsuccessfully tried to contact you by telephone. You seem to have ignored my manuscript sent to you on September 26 which corrected the one sent on September 18. The article as you have re-written it contains twenty-three errors of fact and technical errors which were in neither of my manuscripts. You will therefore appreciate that, apart from the point that the altered title and text have taken away my theme, I cannot allow my name to appear under the article in its present form. Further, I am not agreeable to the publication of an article based on my article without my name, as this inclusion was an essential part of our arrangement."
Either Ramsey on this occasion or Law on his behalf a day or so later informed the plaintiff that the defendants intended to publish Staal's revision either with the plaintiff's name on it or without. The plaintiff was unwilling to agree to either of these courses and it was said that this constituted a repudiation of the agreement which released the defendants from liability.
On November 17, the plaintiff issued a writ claiming specific performance of the contract, which by his statement of claim he alleged was concluded between himself and Law, on behalf of the defendants, in June 1956, and damages for breach of contract. By their defence the defendants alleged that the plaintiff had repudiated the contract, and counterclaimed to recover the expense of making certain blocks to illustrate the article.
F. E. Skone James for the plaintiff. On the evidence there was a contract made between the parties that the defendant company would publish in their magazine an article on jade to be written by the plaintiff and to appear under his name. The plaintiff was entitled to refuse to correct the proof of the article as altered by the defendants' editor because the alterations in the theme and style were such that he could not be expected to allow them to be published under his name. His refusal to allow the article to be printed under his name did not, therefore, amount to repudiation of the contract.
The next question is whether the plaintiff, if he succeeds, is entitled to specific performance of the contract or damages only. An author is entitled to specific performance against a publisher: Barrow v. Chappell & Co. Ltd 1951 (then unreported) [1976] R.P.C. 355. A plaintiff is always entitled to specific performance when damages are not adequate: Carpenter's Estates Ltd. v. Davies [1940] Ch. 160; [1940] 1 All E.R. 13. This principle is not confined to contracts for the sale of land: see Fry on Specific Performance, 6th ed., p. 28.
R. W. Goff Q.C. and G. M. Parbury for the defendants. The terms of the contract were not as alleged by the plaintiff. They were that the plaintiff should supply notes on which the defendants could write an article. It was not to be written in his name. In any case some rights of editing must be inherent. If that contention is right the plaintiff fails. If the agreement was as the plaintiff alleges, then it is submitted that he had no right to refuse to allow the article which the defendants proposed to print to appear under his name, and by so refusing he wrongfully repudiated the contract.
If the plaintiff is entitled to any relief he cannot obtain specific performance and the damages should be merely nominal. Specific performance could not be granted for the following reasons: the contract is not sufficiently precise and is too personal for the court to supervise; there is want of mutuality; and damages afford an adequate remedy (always bearing in mind that the question here is one of advertising and not the reputation of the plaintiff as an author). Barrow v. Chappell & Co. Ltd. [1976] R.P.C. 355 is distinguishable. There the musical composition had already been written; therefore, it was clear what had to be done and there was no personal element. Further, there was there the question of publicity for the plaintiff as a composer; in such a case damages may well be an inadequate remedy. Carpenter's Estates Ltd. v. Davies [1940] Ch. 160; [1940] 1 All E.R. 13 is also distinguishable. Specific performance was granted because there the works were clearly defined and damages were not an adequate remedy. As to want of mutuality, it is clear that the defendants could not obtain specific performance against the plaintiff of a contract to write an article: see Fry on Specific Performance, 6th ed., p. 219. In any case it is now too late for specific performance. The caption and article would both have to be altered and, although physically possible, that would not be carrying out the contract, which was primarily to advertise the jade plaques.
F. E. Skone James in reply. Mutuality has to exist at the date of the trial but not at the date of the contract. Fry on Specific Performance, 6th ed., p. 222, refers only to cases where mutuality is lost but not gained. Here, once the article was written, the publisher could obtain specific performance against the author. Therefore there is no want of mutuality. Here, damages are not an adequate remedy, and the loss of publicity to the plaintiff is difficult to assess. Loss to the plaintiff of publicity, though difficult to assess, is a measure of damage: Clayton and Waller v. Oliver [1930] A.C. 209.
Cur. adv. vult.
July 9.
HARMAN J. read the following judgment. [His Lordship stated the facts and his findings and continued:] In my judgment there was a contract made by Law with the plaintiff at the end of June and ratified by Ramsey at the beginning of September that a full-page illustration in colour of the plaintiff's plaques should appear in the editorial part of the magazine and that opposite should be a full-page article written and signed by the plaintiff. Now it appears that a page of "The Connoisseur" takes about a thousand words. The article tendered by the plaintiff contained some 1,220 words, and the plaintiff admits that it was within the competence of the editor to curtail the article so as to go onto a page. What the plaintiff denies is the defendants' right to have revisions made such as were here made by Ramsey and Staal, these including the title and the conclusion, a number of alterations of fact, and, above all, stylistic alterations. In my judgment, the plaintiff was amply justified in refusing to allow to be published under his name and as his work the article as revised by Staal. I can see no justification for the contention that an editor may alter the matter and the manner of a signed article in this way. Style is, I suppose, a matter of taste. Ramsey said that the plaintiff's article was not in "The Connoisseur" manner and he preferred Staal's production. For myself, I think it was greatly inferior, being written in the kind of journalese which alters the words "before burial" to "prior to interment". However that may be, the plaintiff was entitled to write his own article in his own style, expressing his own opinions, and was not bound to submit to have his name published as the author of a different article expressing other opinions in a different style. In my judgment, therefore, the plaintiff did not repudiate the contract. It is true that the plaintiff is not a professional writer and that it was his reputation as a connoisseur in jade which he wished to enhance; but, having regard to the contract made, he was entitled to do this in his own way.
It remains to consider what remedy the plaintiff is entitled to have. He claims specific performance, but it is not his wish to have the article of September 18 (the second version) published as it stands but to have it published with the small corrections included in the third version, that of September 26, so that there never was an agreed subject-matter for publication. The plaintiff sought to pray in aid Barrow v. Chappell & Co. Ltd. [1976] R.P.C. 355, in which specific performance was decreed for the publication of a piece of music, but in that case the music had been composed and performed on more than one occasion before the agreement was made and the defendants offered in court to publish the music if the judge found there was a contract. This is a very different case. There never was, as I pointed out, a specific article which the defendants agreed to publish. The defendants argued that there was no mutuality because that at the time that the contract was made the subject-matter of the contract was not in existence and the defendants could not have compelled the plaintiff to write the article. As to this, I am of the opinion that it is not essential that the subject-matter of the contract should be in the plaintiff's possession or power when the contract is made. It is enough that if he is able to produce it before the date when performance is due. This at least is true of a chattel. But in this case the exact terms of the article were never agreed on between the parties, and the court would be called on to supervise the editing of the article, whether that of September 18 or 26, by any necessary curtailment or correction of mistakes or possibly grammatical changes which an editor may legitimately make. In my judgment, therefore, this is not an agreement of which specific performance can be ordered by the court.
There remains the question of damages. As to this, the defendants argue that publicity being all that the plaintiff sought, he could have had all the publicity he wanted if he had agreed to Staal's article going out under his name, and therefore nominal damages only can be awarded. I do not accept this. The plaintiff's object was not to advertise his plaques but to enhance his own reputation as an expert on jade, and this, as I have said, he was entitled to do within reasonable limits in his own way. Indeed, I cannot but think that he was justified in his notion that Staal's article published under his name would not be a help to him but the reverse. The quantum of damage in such a case is and must remain more or less a matter of guesswork. It would undoubtedly be a feather in the plaintiff's cap to have a signed article published in the editorial pages of this magazine. He has lost that advantage. The measure of damage is not susceptible of accurate assessment. I see no object in sending the question to inquiry, for I do not think that any evidence would help towards quantifying it. In the absence of a jury, I must do the best I can, and I assess the damages at 200 pounds, for which sum there will be judgment for the plaintiff. In addition, he is entitled as special damage to the amount he expended on having the photograph taken, which was 15 guineas.
As to the counterclaim, the defendants, in accordance with the contract, had the blocks made for the purpose of illustrating the plaques, and this cost 57 pounds and 9 pence, and it is argued that this sum must be set off against the damage awarded to the plaintiff. In my judgment this is not so. The plaintiff's promise to defray this expense was conditional upon the illustration appearing in the magazine with his name attached to it. Owing to the defendants' breach of contract, this has not come about. If the plaintiff had paid for the production of the blocks, he could, in my judgment, have recovered that sum in addition to the cost of the photograph. As he has not been put to this expense, he cannot recover it; but, in my judgment, neither can the defendants. I dismiss the counterclaim with costs.
Judgment for the plaintiff.
Solicitors: Drury, Hopgood & Co.; Frederick Wills & Co.
P. P.
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