#### Elbert S. Jennison, Respondent, *against*Thomas R. Knox *et al.,*Appellants.

(Decided April 1st, 1889).

By contract between plaintiff, an author, and defeñdants, publishers, for the publication of plaintiff’s book, plaintiff was to furnish stereotype plates, pay cost of printing, advance a sum of money towards the expenses of paper and binding, and charge defendants with fifty per cent, of the retail price of the books; defendants were to undertake the publication, furnish the paper and bind the edition of 1,000 copies, and push the sale, guaranty ail sales, and account every six months “ on the basis of fifty per cent, from the retail price; ” plaintiff was to pay defendants a certain sum for every copy he received, and for books sent to newspapers for the purpose of review. Defendants had possession of the books. While in their possession, 240 copies were accidentally destroyed. *Held,*that plaintiff could recover from defendants therefor fifty- per cent, of their price at retail. • The case was not within the rule where performance of a contract becomes impossible by destruction of the subject matter.

*179Appeal from a judgment of the District Court in the City of New York for the Third Judicial District.

The facts are stated in the opinion.

*Benno*Loewy, for appellant.

*Henry M.*Herrman, for respondent.

Per Curiam.

[Present, Van Hoesen and Bookstaver, JJ.]—The plaintiff is an author, who, wishing to have an edition published of his work, called “ Christie’s Choice,” entered into an agreement with the defendants, who are publishers, for the publication. The plaintiff was to furnish the stereotype plates, to pay the cost of printing, and to advance $240 towards the'expense of the paper and the binding ; and he was to charge the defendants with fifty per cent of the retail price of the book. By this we understand that he was to receive one half of the retail price of the book, free and clear. The defendants were to undertake the publication, to furnish the paper, to bind the edition, of 1,000 copies, to push the sale, to guaranty all sales, to account once in six months, to expend $25.00 in advertising, and to settle “ on the basis of fifty per cent from the retail price.” When any books were delivered to the plaintiff, he had to pay to the defendants 75 cents for every copy that he received, and when copies were sent to the newspapers for the purpose of obtaining a favorable notice of the work, the plaintiff was charged with 62 cents for every copy, and ten cents for the postage on every copy. The defendants were regarded by both parties • to the contract as the owners of the books in their salable form. They had the possession, and the right of possession, and all that the plaintiff could claim was fifty per cent of the retail price of the books. In the books themselves he had no property whatever. Two hundred and forty of the books were accidentally burned, and the question is, whether the plaintiff is entitled, to recover his fifty per centum of their price at retail ?

*180The controlling question is, what was the intention of the parties ? They have made no provision for the case of the destruction of the books by fire, and our decision must depend upon the construction to be given to the written contract. Are we to construe the contract as one not impossible of performance, and to call on the defendants to perform their obligation to account for fifty per cent of the retail price of the books; or are we to imply as one of the terms of the contract the condition that the destruction of the books should free the defendants from any liability respecting those that were destroyed ?

It has been the rule of the courts to-imply such a condition where the subject of the contract is a specific-thing for which a substitute will not answer. Tire most familiar illustrations of the rule are the case in which the horse Eclipse was bargained and sold, and he died before the day of delivery; and the other case, in which Surrey Music Hall was leased for certain concerts, but was destroyed by fire before the time for the concerts arrived: in both cases, the court held that it was a condition implied from the very nature of the contract that the destruction of the thing that was bargained for, without the fault of either party, was a good excuse for not performing the contract. This was so because-both parties - must have known when the contract was entered into that, unless the identical thing continued to exist, performance would be an impossibility *(Dexter*v. Norton, 47 N. Y. 62; Pollock Contracts, marg. p. 362; Hare Contracts, p. 648.) But where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome, or even impossible. In sucha case,to use the language of Judge Ruggles, in *Harmony*v. *Bingham*(12 N. Y. 115), it must be deemed the folly of a party not to provide, expressly against contingencies, and exempt himself from responsibility in certain events; and in the instance o£ an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by or within the control of the party.

*181In the case before us, the defendants were to publish an edition of 1,000 copies. No particular or specified copies were within the contemplation of the parties. The plaintiff furnished the stereotype plates, paid for the printing, and advanced $240 towards the expenses of the paper and the binding. Any copies that the defendants might produce that were printed from those stereotype- plates would answer the contract. The plates were in their possession, and they were to buy the paper, and to procure the binding to be done. Their own construction of the contract was that the plaintiff was to have all the copies printed if he should pay them seventy-five cents per copy. If, after the plaintiff had ordered a number of copies, and they had been set apart for him, a fire had destroyed them before actual delivery, the defendants would not have considered the loss by fire a good reason for the plaintiff’s failure to pay them seventy-five cents a copy for those that were burned, nor is there any good reason why the defendants ought not to pay the plaintiff the price stipulated in the contract for those copies that were in their possession, and under their control, at the time that the fire consumed them. The books were at their risk until they were sold or until the plaintiff had taken them off their hands.

The contract provides that the plaintiff shall “ charge the defendants all copies at a discount of fifty per cent from the retail price; ” and “that the defendants shall settle, and semiannuallyrender an account-sales, on the basis of fifty per cent of the retail price.” They cannot render an account-sale of those books that have been burned, but the right of the plaintiff to charge them for all copies at fifty per cent discount would be defeated, if the loss of the books by fire relieved the defendants from liability.

There is no hardship in holding the defendants to this construction of the contract. They had the possession and the ownership of the books; notwithstanding that the plaintiff had printed the book at his expense, and contributed $240 towards their outlay, for paper and binding. It was in their power to protect themselves by insuring, and it is not unrea-*182sonable to say that when the plaintiff calls for the books, and is willing to pay for them, the defendants should either deliver them or account for them at the stipulated price.

The judgment should be affirmed.

Judgment affirmed.