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DELL PUBL. CO. v. WHEDON

January 11, 1984

DELL PUBLISHING CO., INC., Plaintiff,
v.
JULIA WHEDON, Defendant



The opinion of the court was delivered by: LUMBARD

LUMBARD, Circuit Judge:

 Dell Publishing Co. sues Julia Whedon to recover advances totalling $14,000 paid to Whedon for a manuscript it eventually rejected for publication as unsatisfactory in style, form and content. Plaintiff is a resident of New York and defendant of Massachusetts. Jurisdiction is therefore conferred by 28 U.S.C. ยง 1332.

 The court finds that Dell was under a good faith obligation to give Whedon an opportunity to revise the manuscript to Dell's satisfaction, with Dell's editorial assistance. Having failed to do so, Dell itself was in breach of contract, and Whedon was entitled to retain the advances paid to her. The complaint against Whedon is dismissed.

 The facts, established by testimony at trial, are undisputed. Whedon is a professional writer who, prior to any events connected with this suit, had published one novel, and numerous short stories, reviews and articles. In early 1974, Whedon, through her literary agent, Sterling Lord, presented a twelve-page outline for a proposed novel to various publishers, including Dell. The novel, tentatively titled Over the Limit, was to concern the dissolution of a marriage in a professional sports milieu.

 On May 23, 1974, Dell and Whedon entered into a contract giving Dell exclusive publication rights to the novel. The contract provided in relevant part that:

 
para. 2. The Author shall deliver . . . the Work to Dell in form, style and content satisfactory to Dell on or before March 15, 1975. If the Author fails to so deliver, then the Author shall, at Dell's request, promptly return to Dell any payments made to the Author pursuant to this Agreement.
 
para. 4. Dell agrees to pay to the Author the sum of $20,000.00 as a minimum guaranty in the following manner: $8,000.00 on the signing of this Agreement; $6,000.00 on acceptance of the first half of the manuscript by Dell; and $6,000.00 on acceptance of the completed manuscript by Dell.
 
All such payments are to be applied against . . . royalties earned by the Author . . .

 Upon signing the contract, Dell paid Whedon $8,000.00, as stipulated in para. 4 of the contract.

 Shortly afterward, Whedon met for the first time with Ellis Amburn, the editor at Dell assigned to her book, to discuss the project in general terms. From 1974 until early 1977, Whedon worked on the manuscript. Her contact with Amburn was limited to one meeting and one or two phone conversations, the substance of which was not put in evidence at the trial, and a letter from Amburn to the Sterling Lord Agency, written around November 5, 1976, inquiring about the progress of Whedon's manuscript.

 In early 1977, Whedon submitted to Amburn the first portion of the manuscript, representing roughly one-half of the completed manuscript. *fn1" According to Whedon, Amburn expressed enthusiasm about the manuscript, answered affirmatively the questions Whedon put to him concerning the effectiveness of particular characters and scenes, indicated no problems, and made no suggestions for revisions. Amburn did not testify at trial, and no evidence was produced by plaintiff to controvert that account. After the meeting, Whedon received an additional $6,000 from Dell, pursuant to the contractual provision for payment of an additional $6,000 upon acceptance of the first half of the manuscript. *fn2"

 Whedon continued work on the manuscript without any further substantive communication with Amburn. *fn3" On or about February 10, 1978, Whedon, through Sterling Lord, submitted to Amburn the completed manuscript, which included the portion previously submitted and accepted in 1977, and new material of roughly equal length. After about ten days had passed and Whedon had not heard from Amburn, she called him. At trial, Whedon testified regarding that conversation and subsequent communications as follows:

 
Whedon: It was a very awkward conversation in which he said, "I don't know, it's just not what we expected."
 
And I asked him, "What do you mean?" And he said, "it just isn't -- I am just surprised. It ...

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