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February 5, 1982

Barry GOLDWATER and Stephen Shadegg, Defendants

The opinion of the court was delivered by: GRIESA


I wish to thank both lawyers for their arguments and for their presentation. They were very efficient and cooperative in the trial and the issues have been fully aired.

 I would like to dictate findings of fact and conclusions of law now on the basic issue of liability; that is, on the question of whether or not plaintiff, Harcourt Brace Jovanovich is entitled to rely upon the provision of its contract which has been discussed so much to the effect that the author is obligated to deliver a manuscript satisfactory to the publisher in form and content.

 As we all know, if it can be concluded that the manuscript here was not satisfactory to the publisher in form and content, and if it can be concluded that there was no breach of obligation by the publisher, then the publisher had the right to terminate the contract and to obtain the return of the advance which had been paid.

 I want to, as I say, dictate findings of fact and conclusions of law on the issues I have just mentioned and we will subsequently determine whether there are any other issues which need to be further discussed.

 This is a lawsuit by Harcourt Brace Jovanovich, Inc., a publishing house, against Barry Goldwater and Stephen Shadegg. The case has been tried to the Court without a jury and consequently I am making findings of fact and conclusions of law now. The facts are as follows, and I so find them.

 In early 1977 a proposal was submitted to Harcourt Brace Jovanovich, which I will refer to hereafter as HBJ, for the publication of the memoirs of Barry Goldwater.

 The proposal was to have Stephen Shadegg act as the actual writer, working closely with Goldwater who was to provide the material and work and comment on the substance of what was presented.

 Shadegg had previously had a long relationship with a literary agent by the name of Oscar Collier and he relied on Collier to market this proposal. Oscar Collier was associated as a literary agent with his daughter, Lisa Collier.

 The Collier firm submitted the proposal to certain publishers, including HBJ, in early 1977. An editor at HBJ by the name of Carol Hill received the proposal. She talked about it to her editor-in-chief, Daniel Okrent. There was a meeting involving Hill, Okrent and the Colliers. The HBJ people were very enthusiastic and quickly agreed to publish the Goldwater memoirs on the basis of the proposal which had been submitted.

 There is testimony demonstrating that although the HBJ people were enthusiastic about having the Goldwater memoirs, they had reservations about the writer Shadegg. There is a dispute as to whether they communicated these reservations to the Colliers. Whether they did or did not communicate the reservations is unimportant. But it is important to note that the HBJ people did have reservations and would have preferred another writer.

 However, it is also to be noted that the Colliers furnished the HBJ people with four books previously written by Shadegg, a writer of long experience, who had engaged in journalistic writing as well as having written books, political biographies and so forth. The HBJ people were fully on notice as to exactly the degree of talent possessed by Shadegg.

 There was a meeting in Washington, D.C., the main purpose of which was to meet Senator Goldwater. The contract was then signed January 26, 1977. It names Stephen Shadegg and Barry Goldwater as the authors and HBJ as the publisher.

 The contract contains the normal provisions about royalties and many other detailed provisions not relevant here. It contains certain paragraphs referring to the concept of the manuscript being "satisfactory to the publisher in form and content," particularly paragraph 2 which states as follows:

 "The author will deliver to the publisher on or before October 1, 1978, one copy of the manuscript of the work as finally revised by the author and satisfactory to the publisher in form and content."

 The agreement provided for an advance totaling $ 200,000, a remarkably high advance. $ 65,000 was to be paid at the time of contract signing. Another $ 75,000 was due on delivery and acceptance of the completed manuscript. The balance of $ 60,000 was due on publication.

 There was an exchange of letters in February 1977 between Hill and Goldwater in which Hill in effect offered to do a vigorous job of editing and Goldwater made it clear that he welcomed such editing. He stated in his letter of February 15, 1977 that Hill should not hesitate to criticize or make suggestions, even though he might be a little bullheaded here and there.

 The project began between Shadegg and Goldwater. One of the things which was a feature of these memoirs was that Goldwater had over the years collected what he called the Alpha File. It consisted of memos and notes of conversations he had with other political and governmental leaders in the United States and he had dictated these notes and memos and prepared them at the time of various meetings and events.

 These items had been collected in the Alpha File and one of the ideas of the memoirs was to publish materials of substance, anecdotes and so forth, from the Alpha File, to the extent they did not involve purely personal information or the normal kind of information which sometimes is held back until the death of certain living people in order not to hurt them.

 In any event, materials from the Alpha File were turned over to Shadegg and other materials were given to Shadegg. Goldwater commenced consulting with Shadegg and Shadegg set to work writing.

 This process continued over the period of time involved in the lawsuit. Shadegg would write a section and submit it to Goldwater; Goldwater would comment, offer criticisms, provide additional material, and so forth.

 On June 22, 1977, Shadegg wrote a letter to Hill enclosing a draft of seven chapters, approximately 30,000 words. At the same time Shadegg sent Oscar Collier the same draft material. The letter to Hill concluded with the following paragraph:

 "We would be most interested in having your comments and your suggestions. One of the problems we face is how much to put in and how much to leave out. The available material is almost overwhelming. Your objective viewpoint will be extremely helpful."

 Hill did not communicate with either Shadegg or Goldwater in response to the receipt of this draft material. This caused understandable puzzlement on the part of Shadegg and Goldwater. They were eager to have her reaction and they did not have it.

 Goldwater has made it clear in his testimony in the case that he expects and needs editorial work on the part of a publisher. He has published a number of books and feels the need of editorial work. He expected it here ...

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