(146 N.E.)

PIERCE, J. These are two actions at law brought under R. L. c. 197, to enforce three mechanics' liens. The only respondents who appeared to contest the claims of the petitioners are Mary A. Shine and Carl E. Carlson, mortgagees of the property on which the liens are claimed. The cases were consolidated by an order of the superior court, and were heard together by an auditor, who

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

answered certain framed issues, it being agreed that the auditor's findings of fact would be final. The auditor filed three separate reports, which have been confirmed, and in accordance with the findings therein orders were entered by the court establishing the liens in favor of each of the petitioners. The cases are before this court on the appeals of the mortgagees.

ty days after ceasing to perform and furnish labor and materials, in accordance with the provisions of R. L. c. 197, § 16. As the contract in each of these cases was broken by the owner and contractor we think the claims were properly allowed under R. L. c. 197, § 16; Bordier v. Davis, 239 Mass. 448, 132 N. E. 171.

[2] Finally, the respondents contend "that, if the petitioners each had a right to claim a lien, they should have each filed separate liens on each separate building and the lot of land on which it stood."

Both cases present the same questions of law which are argued by the parties and they will be considered together. The respondents contend that by the terms of their contract each petitioner either had waived or had no right of lien when the certificate of lien was filed. In the first Scholl case the final payment, $1,200, was to be made "thirty days after all work has been completed." In the case of the intervener, A. K. Mann, a final payment of $62.50 on each house was to be made "thirty-three days after water is turned on." In the second Scholl case the contract price for the work was $13,740, pay. ments to be made as follows: on the tenth of each month, Fleischer (the owner) was to pay Scholl a sum equal to sixty-five per cent. of the work done and material furnished during the preceding month, as determined by an accounting between the parties at the end of such preceding month. In this last case it results, as the respondent contends, that "By the terms of the contract | Hitchborn street, Revere, Massachusetts.

* the payment of the balance due the petitioner Scholl under any condition was not due until the tenth day of the second month following the month in which the last work was done or materials furnished, and as the petitioner Scholl filed his certificate of lien on the 9th of August, 1915, one month and one day previous to the day on which the payment was due, the petitioner Scholl established no lien in this case."

[1] It was found by the auditor that Fleischer in each case did not make the payments on the dates agreed on in the contract. It is not disputed that Scholl, by reason of the failure of Fleischer to make the payments as agreed, was obliged to cease work before he had performed and furnished the full amount of labor required under his agreement relating to the Revere property, on July 24, 1915, and that on August 6, 1915, he executed and recorded a certificate in the registry of deeds as required by law. Scholl and Mann each claimed that he had performed and furnished the full amount of labor and materials required under his agreement relating to the Medford property, and each filed a certificate or claim of lien within thir

In the first case the parties filed a memorandum of additional facts in court, wherein it is agreed that "lots A and B referred to in the contract and the report of the Auditor are contiguous lots as shown on the plan referred to in the auditor's report, and at the time of the making of the contract between Scholl and Fleischer there was no physical or visible division between said lots. The houses erected are separate buildings situated on lots A and B, respectively, as shown on said plan and said houses are not connected physically and are two physically distinct dwelling houses." In the second case the parties filed a memorandum of additional facts in court, wherein they agreed that "the buildings and lots upon which the plaintiff seeks to enforce his lien are situated on

The three lots are contiguous as shown on a
plan of Shirley Park made by Whitman &
Howard, C. E., dated May 29, 1907, and re-
corded with Suffolk Deeds, book 3222, page
441, and at the time of the making of the
contract between Scholl and Fleischer, said
lots were not divided physically, or visibly.
The buildings erected on said lots are not
physically connected and are three physically
distinct dwelling houses." In each of these
cases the work to be done for the owner up-
on the several lots was to be done for an en-
tire sum no part of which was assigned to
any separate work or building, and was to
be paid for as the work progressed upon all
the work contracted to be done. The cases
are covered by Batchelder v. Rand, 117 Mass.
176, Worthley v. Emerson, 116 Mass. 374,
Wall v. Robinson, 115 Mass. 429, and Orr
v. Fuller, 172 Mass. 597, 52 N. E. 1091. Com-
pare Cahill v. Capen, 147 Mass. 493, 18 N.
E. 419; Osborne v. Barnes, 179 Mass. 597, 61
N. E. 276; Bordier v. Davis, supra.
It re-
sults that the orders establishing the liens
of Joseph Scholl and Albert K. Mann are
affirmed.

So ordered.

Mass.)

MACDONALD v. PAGE CO.
(146 N.E.)

MacDONALD v. PAGE CO. et al. (Supreme Judicial Court of Massachusetts.

Suffolk. March 12, 1925.)

1. Contracts 175 (3)-Conditions held to warrant implication that words, clauses, and sentences were used with appreciation of exact meaning and precise application to subject-matter.

Where parties drafted contract under professional advice in light of expert knowledge respecting matter of financial and literary importance, it warranted implication that words, clauses, and phrases were used with appreciation of exact meaning and precise application to subject-matter.

2. Contracts 203-Contract between publisher and author held to restrict publication to stories submitted by author in 1919.

Contract between publisher and author held to restrict publisher to publication of stories in form submitted by author in 1919, and not to indicate that 1912 revision of manuscript stories was transferred to publisher or that it acquired right to publish them. Exceptions from Superior Court, Suffolk County; F. T. Hammond, Judge.

Bill by L. M. Montgomery MacDonald against the Page Company and another to restrain defendants from publishing volume of short stories written by plaintiff and for damages and accounting. From certain rulings accompanying order for decree for plaintiffs, defendant named excepts. Exceptions overruled.

W. A. Rollins, of Boston, for plaintiff.
Asa P. French, of Boston, for defendant.

a master.

RUGG, C. J. This is a suit in equity. Its object is to restrain the defendant from publishing a volume of short stories written by the plaintiff and for damages and an accounting of profits. The case was referred to His report contains findings at length of all material facts, with parts of the evidence. The judge of the superior court, who heard the case on exceptions to the master's report, apparently had before him a full transcript of the evidence. The case is before us on the bill, answer, master's report, certain extracts from or condensations of evidence, the decision of the judge and the exceptions to rulings made by him. All the evidence material to the exceptions is in the record. The Page Company is the only excepting party and will be called in this opinion the defendant.

The plaintiff is an author and the defendSeveral books written by ant a publisher. the plaintiff and published by the defendant achieved considerable popularity and a large number of copies were sold. The plaintiff has established a reputation as a writer of popular fiction, which is of pecuniary value to her. She is entitled to protect and pre

serve it. She wrote and the defendant pub-
lished Anne of Green Gables and Anne of
The chief character
Avonlea before 1912.

of those books was Anne Shirley, and she
became widely known among readers of fic-
tion. It was thought by both parties hereto
that the presence of that character in any
new book of the plaintiff would stimulate
public interest and probably add to its finan-
cial returns. In 1912, after some correspond-
ence, the plaintiff sent to the defendant the
manuscripts of twenty-eight short stories..
These all were copied in typewriting by the
defendant and subsequently twelve were pub-
lished in a book entitled Chronicles of Avon-
lea. In several of these stories more or less
conspicuous references were made to Anne
Shirley.

Shortly afterwards, but in 1912, the defendant at the plaintiff's request returned to her the manuscripts of the stories At some time not included in that book. The relations between the parthereafter the plaintiff changed to another publisher. ties, which hitherto had been cordial, became strained. In 1919 litigation ensued arising from their connection as author and publisher. After negotiations culminating in conferences extending over a number of days a written contract was made designed to end their business association through the purchase by the defendant from the plaintiff of her royalty rights in all her books published by the defendant, to settle all their disputes and to terminate the litigation.

A part of that contract provided for the publication by the defendant at its option of a new volume of short stories written by the plaintiff. The present controversy centers about the publication by the defendant in 1920 of that new volume of short stories under the title, Further Chronicles of Avonlea. In that publication the defendant used cerstories then sent it by the plaintiff but not tain copies made by it in 1912 of the short used in Chronicles of Avonlea, the volume published in that year. The manuscripts of 1912 were revisions of short stories earlier magazines. published by the plaintiff in newspapers and

With respect to the portions of the contract of 1919, relating to the short stories to be published by the defendant, the parties apcircumstances: proached its framing and execution in these

"The plaintiff was sufficiently informed and * And knew in 1912, that the defendant then made typewritten copies of her stories. * I find [says the master] that in January, 1919, she had forgotten that the defendant had made 1912, and had returned to her the original typewritten copies of the stories submitted in printed clippings. There was then no fraudulent concealment by the defendant that it had all, or at least nearly all, of these copies in its possession, though the plaintiff did not understand that it had them.

* * In the

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years that had then elapsed since 1912, the [ the second part such rights as she may have in typewritten copies in the defendant's posses- the said stories (except The Promise of Lucy sion had not been a subject for its attention; Ellen' and 'A Chip of the Old Block'), subject but it knew that it had them, or should have them, and during the negotiation of the contract located all but one or two of them."

During these negotiations the attorney for the defendant wrote to the attorney for the plaintiff a letter in which he referred (as one of the matters to be included in the settlement but not theretofore mentioned) to the "manuscripts" of short stories submitted by the plaintiff to the defendant in 1912 in connection with the publication of the Chronicles of Avonlea. He alluded to these stories as having been published at divers times in various papers and magazines, as not being copyrighted, and hence as being free for publication and sale by anybody without obligation as to royalties. Then occurs this statement:

"The Page Company has typewritten copies or originals in its possession and may at some future time wish to publish those which they regarded as the poorer ones and which were not included in the 'Chronicles.'"

Then follow further general suggestions and argument touching these short stories, their value or want of value, and their possible publication. This letter was read by the plaintiff before the contract of 1919 was signed, as appears from her testimony. She testified further in substance that from that letter she "gathered" the conclusion that the defendant had made copies of the manuscripts which she had sent it in 1912.

to such rights, if any, as may be held by any magazines or publications in which said stories or any of them have appeared and the rights of any person or persons who may have taken out copyright thereon, but party of the first part makes no guarantee in this connection. Party of the first part, however, agrees that in as far as she may do so without convenanting regarding her title or present rights in the matter of said stories and each of them, such publication and publish as its own sole that the party of the second part may make property a book made up of said stories or part of the same, as by her, except that as two of the said stories (1) The Promise of Lucy Ellen' and (2) ‘A Chip of the Old Block' have already been used in other form, and the incidents of a third story, to wit, "The Deferment of Janet' have appeared in her book published by the party of the second part, called 'Anne of the Island.' * * If the party of the first part shall find on her return to Canada that she has the fourteen of the sixteen stories aforesaid, after excluding The Promise of Lucy Ellen' and 'A Chip of the Old Block,' she shall send those manuscripts which contain her revisions of said stories, otherwise copies revised or not revised, as she may see fit. The party of the first part makes no guarantee of the literary merit of any of the said productions. The party of the first part further agrees that in preparing for the publication of said new book the party of the second part shall be entitled to make slight changes or amendments to the stories, if in its opinion the same will tend to improve the book, but no changes shall be made bringing 'Anne Shirley' into any story where she does not appear either in the story as originally published or as revised by the party of the first part. In the title of the said proposed book the words 'Anne' and 'Anne Shirley' shall not be used either by way of title or subtitle. No picture of 'Anne Shirley' or picture entitled 'Anne' or 'Anne book. The party of the second part shall not Shirley' shall appear in or on said proposed advertise the said proposed book as an 'Anne' book. But nothing in this agreement contained shall prevent the party of the second part from advertising that the book is by the author of the 'Anne' books and any of them."

The negotiations for settlement, says the master, "continued through a week, the parties personally participating under the guidance and advice of able counsel and, after repeated amendments under scrutiny of counsel for both the parties, both learned in the law of contracts, the agreement reached was embodied in the contract" of 1919. That contract recited, as summarized by the master, "the previous publication contracts between the parties, and that the plaintiff has theretofore submitted to the defendant sixteen stories which have been published in sundry newspapers and magazines in Canada and the United States of America (stating their titles * * *), and that the parties have no exact knowledge whether said stories are or are not under legal copyright of the United States of America or the Dominion of Canada, or elsewhere, and that the Page Company is desirous to publish as thereinafter provided, and as its own sole property, a book of short stories made up of all or part of the said stories, as the Pageant in that year. She had destroyed them. Company may determine, except 'The Promise of Lucy Ellen' and 'A Chip of the Old Block.'" It then proceeds:

"Now therefore in consideration of the foregoing the parties hereto agree as follows: The party of the first part assigns to the party of

The contract also recites the payment by the defendant to the plaintiff of the sum of $17,880. The right to publish these short stories was a part of what the defendant received for that payment.

The plaintiff, on returning to Canada after the execution of the contract, made search and found that with one exception she did not have any of the manuscripts containing her 1912 revisions returned to her by the defend

At the execution of the contract she did not expect to find them and said as much to the defendant. She therefore revised the original stories as they appeared in newspaper or magazine, had them copied in typewriting and sent them to the defendant. These revisions

Mass.)

MACDONALD v. PAGE CO.
(146 N.E.)

made in 1919 consisted almost entirely in the deletion of certain passages, some because used by her in other books published by her after 1912, and others because regarded by her as objectionable on literary grounds. Little, if anything, was added to them.

Closer analysis of the contract

and changes thereby made as compared with the forms of these stories previously printed in the newspapers and magazines constituted a definite property right in the plaintiff. The defendant had no property right in them. Its possession of the typewritten copThus it appears that there were three ies conferred no license or privilege to pubforms of most of the stories in Further lish them. It held them wholly subject to (1) The original | the exclusive title of the plaintiff to the parts Chronicles of Avonlea: form in which they were written and printed of the stories never before printed, even if in newspaper and magazine; (2) the revision not copyrighted. Baker v. Libbie, 210 Mass. made by the author in 1912 in preparation 599, 97 N. E. 109, 37 L. R. A. (N. S.) 944, for the publication of Chronicles of Avonlea, Ann. Cas. 1912D, 551. Such omission seems of which at the time of the 1919 contract strange, if persons, familiar as these parties the defendant had the only copies; and (3) were with property in literary productions, the revision made by the author in 1919 pur- had intended the one to transfer and the other to acquire title to the 1912 revision of suant to the contract of that year. the stories. fails to disclose a purpose to transfer title to, or to allow the defendant to publish, the 1912 revision. The first recital of the contract bearing on this matter is to the effect that the plaintiff has "written and heretofore submitted" to the defendant "sixteen short stories which have been published in sundry newspapers and magazines." A list follows of the titles of the stories and the names and dates of the newspapers and magazines in which they have been printed. This, standing alone without its context, is at best equivocal. Reference may be made to the form "submitted" or to the form "published." The minuteness of description of the original publication of each story would have been unnecessary verbiage if it were intended to transfer title to the revisions submitted to the defendant, all of which were known by it to be in its possession by exact copies of those revisions. The next two references are to "said stories" in connection with copyright and to the desire of the deThese stand on the fendant to publish a book "made up of all or part of said stories." same footing as the first reference. considerable comes the clause of transfer of title, whereby the plaintiff "assigns" to the defendant "such rights as she may have in the said stories.". This clause must be read in conjunction, not only with what precedes, but with the paragraph immediately following. That paragraph obligates the plaintiff on her return to Canada to search for "fourteen of

One element of market value in the stories of 1912 was the reference contained in several of them to Anne Shirley, the character already mentioned, who had attracted much favorable public attention in "Anne of Green Gables," the most successful of the books of the plaintiff published by the defendant. The presence of that element was much urged by the defendant in correspondence with the plaintiff prior to bringing out the book of short stories in 1912. Some of the unpublished stories then submitted contained references to Anne Shirley. These references constituted one of the chief motives impelling the defendant, in publishing Further Chronicles of Avonlea, to use the 1912 copies instead of those sent by the plaintiff in 1919. The original newspaper and magazine stories and the revision of 1919 contained no reference to Anne, as the defendant knew.

The sixteen stories in the manuscript form as revised by the plaintiff in 1912 and then submitted to the defendant but not used by it in Chronicles of Avonlea, had never been published before the 1919 contract. As stated by the judge in his decision:

a

"They represented very amount of labor, were admittedly superior in point of literary excellence to the original newspaper stories which were the plaintiff's early work and were 'immature and crude in comparison.' They contained much new material which the defendant considered could be copyrighted when the original stories could not

be.'

Then

The defendant in using the 1912 revision the sixteen stories aforesaid" and if found had these factors in mind.

[1] The parties drafted their contract under skilled professional advice in the light of all this expert knowledge of intelligent persons respecting a matter of financial and literary importance to each of them. These conditions warrant the implication that words, clauses and sentences were used with appreciation of their exact meaning and their precise application to the subject-matter.

[2] It is significant that the 1912 revision of the stories is not made the subject of definite transfer in the contract. The additions

to send "those manuscripts which contain her revisions of said stories, otherwise copies revised or not revised, as she may see fit." Here is direct reference to the 1912 revision of the stories. A vain obligation and a futile labor were thus imposed on the plaintiff if the parties were contracting with reference to a revision of stories at that moment in the possession of the defendant. The implication of this part of the contract is that the source from which the defendant was to get its material for publication was that which was to be sent it by the plaintiff after her return from