" EMERALD HOURS IN NEW ZEALAND."

Press, Volume LXV, Issue 13600, 8 December 1909, Page 4

" EMERALD HOURS IN NEW ZEALAND."

ACTION AGAINST MESSRS WHITCOMBE AND TOMBS. SOME AMUSING EVIDENCE. VERDICT FOR DEFENDANTS. (niosi oxm OWN correspottdbnt.) LONDON, October 29. Mr Justice Grantham and a special jury were occupied throughout Friday *nd Monday in hearing an ection; brought by Mrs Alys Lowth Adlam, cf Cheyne Walk, Chelsea, against Messrs Whitcombe and Tombs, publishers, of Christchurch, in respect of a book ■writt«r_ by the plaintiff under tho name of Alys Lowth, entitled -'Emerald Hours Ln New Zealand. " Mrs Adlam claimed damages for alleged breaches of the publishing agreement. She also asked for a declaration that an agreement between her and the defendant operated only as security for £270, not as an absolute assignment of the book. Tho defence was a denial of the alleged breach of contract, and * plea that the deed operated as an absoluto assignment of plaintiff's rights ;n tho book. Mr J. A. Simon, K.C., and Mr G. F. Hart appeared for the .plaintiff; Mr Eldon Bankes, K.C., and Mr E. HI Devonshire for the defendants. In opening the case, Mr Simon said that the plaintiff claimed damages for alleged breaches of a publishing agreement, an account of all copies of her book sold here, payment of a royalty on such books as had been sold, a declaration that a certain deed l between her and the defendants operated as a security only for the payment of £270, and not as an absolute assignment of tho book, and, finally, en injunction to prevent the publishers from dealing with the book in breach of agreement. The defendants denied any breach of the contract, or that a royalty was payable to the plaintiff, ond pleaded that t. c deed in question operated as an assignment of her rights. The plaintiff was a literary tady who went to New Zealand in 1906 for the benefit of her health. tShe .as attracted by the great beauty of the islands, and, as there was going to be an Exhibition at Christchurch, she decided to write tho work in question. She got into communication with the defendants, and they agreed to publish her book for £470, and of this she paid £200 down. Under the impression that she was signing a formal document, the plaintiff put her signature to a document which, counsel said, transferred her book, look, stock, and barrel, and recited that tho defendant had paid the plaintiff £270, which was not the case. Subsequent transactions resulted in a muddle as to the delivery of the book, and this had caused a serious injustice to the .plaintiff. Cross-examined by Mr Eldon Bankes, K.C., Mrs Adlam (the plaintiff) said she had not taken a particularly rosy view of the chances of her book. Sho said she could not remember any complaint by Mr Whitcombe, because she gave a mortgage on her book to people from whom she borrowed £200 to mako the initial payments. Mr Bankes (to Mr Justice Grantham) : The whole difficulty is because the lady gave the mortgage. For the defence, Mr Eldon Bankes : said Mrs Adlam had no right to assign J an interest in the book to anybody on mortgage, and'by so doing she created an impossible position; NEW ZEALAND WITNESSES. Several hours were occupied in reading evidence taken on commission in New Zealand in support of the defendants' case. Mr Henry Cotterill, solicitor, of Christchurch, member of the firm of Messrs Duncan, Cotterill and Stringer, said that the plantiff came to him with letters of introduction and applied to him for an advance to enable her to oomplete arrangements with tlie defendants for publishing her book. He finally agreed to lend her the money jointly with Mr Boyle (£IOO each), and immediately he saw Mr Whitcombe and wrote him certain lettere, which resulted in a modified arrangement being made. In return for the advance he became interested in the book as a mortgagee. The mortgage for £200 was a security over the book, photographs, manuscripts, the whole of the copies of the book when printed, and all Bums of money due for advertisements. It was not until tho end of January that he was aware that his firm were acting for the defendants. At the end of November, plaintiff estimated tie advertisements for the book to be worth £106, and after giving the mortgage she collected some of this money herself. She did not account to him for any sums. Plaintiff collected one sum of £10 from the United Sexvice Hotel, while she took a camera from Messrs Sharland and Co., in respect of an advertisement worth five guineas. Messrs Ballantyne and Co. owed- £13, and witness was told by them that there was a set-off for £5 16s Bd. Witness said he then gave up the thing in disgust. Altogether he had collected about £80 for advertisements. Before plaintiff left the colony she was moving about from place to place— Christchurch, Wellington, Napier, and Auckland. He admitted telling the defendants that he; considered his security as postponed to theirs and that any moneys that came in might go towards the £270. Boyle and himself had made up their mindß to see her through to that extent, that • was to say they would not have seen the thing wrecked on account of their £200 at that stage. Cross-examined by Mr Anthony, witness said he knew that the plaintiff was originally to get 2000 books on the payment of £200. Tbe mortgage, however, gave those books to him, and as a matter of fact they were held and sold by the defendants. He did not anticipate that the money would go into her hands. He always assumed that it would go toward' the £270 due to the defendants. MR WHITCOMBE'S EVIDENCE. Mr George Hawkes Whitcombe, managing director of the firm, deposed that he met the plaintiff in the early part of 1906. She came to their 6hop, said that she had) recently come from South Africa, and was travelling through New Zealand on a holiday. She asked him whether he would publish for her a shaving-block with mottoes on it. Witness said he did not think it would- sell, and he refused to publish it. Mr Justice Grantham: What does all this mean? Mr Simon: It would be something with a motto on for every day in the year, based on the assumption that everyone shaves once a day. His Lordship; I think the defendants acted wisely, as it would not go. Mr Simon: Apparently everyone in New Zealand wears a beard. Mr'Eldon Bankes continued to read th-> defendant's evidence, which stated that in October, 19v6, plaintiff asked him to publish a book of her travels. She wanted 10,000 copies at sa, each, with the Tery best illustrations. He told her that a book of that character ■would not sell. Pluiijtiff then called.

every day for a week, and told him that' she relied largely not only upon her sale to the Government, but also to the coming Exhibition. Defendant said that a book n a cheap basis, published at Is 6d or 2a, would be possible, and he refused to entertain any other idea. At that time she wanted them to take the risk. Sho had been to the Press Company, and tlie "New Zealand Times," and later sho went to Mr Brett, of Auckland. On the 18th October sho sent Air Donne to see him. I'revionslv she had said that the Tourist Department would take from one to two thousand copies. Mr Donne said that Mrs Adlam had asked him to call with regard to the publishing of a book. Deiendant aske 1 him whether, if they published this book, he would guarantee to take iuOO ! copies, or would he guarantee the cost oi publication? _ur Donne said he would do neither. Defendant then considered the matter finished. Later in October the nlaintiff made an unsuccessful effort to* get the book published in Auckland. in -No- ! vember she returned to Christchurch and camo to see him. .She said that Mr Brett, of Auckland, had refused to publish on anything but a cash basis, and his price was higher than theirs. Sho wanted him very much to publish th<_ book. On her way up and down sho had seen the principal members oi th-' Cabinet. She had had a long interview with the Premier, she was friendly with Dr. Findlay, and had no doubt she could get the Government to take 1000 copies, and Mr Donne another 1000 for the Tourist Department. If she could do that, she thought it would finance the whole thing, ilainti*_ showed him a letter from IxmS Plunket about another matter, which showed him sho was on visiting terms at Government House, and that to a certain extent influenced him. As a result of a lettor from her on the loth November, there was another long interview, and defendant said:—"Look here, Mrs Adlam, we are business people, and we must have what I have stated, either cash or absolute security. I will not mince matters with you at all. I do not want to publish tho book. I know the book will be a failure. 1 am satisfied in my own mind, from a publisher's point of view, that the book must be a failure, and wo, as a publishing house, will not havo anything whatever to do with it, except on a cash basis or complete security. We must have complete security.'" Later on Mr Boyle and Mr Cotterill came to see him. Mr Cotterill said ho was a distant connection of the lady by marriage, and would liko to help her with thd book if possible. He was willing to d.i so to the extent of £100; Mr Boyle also offered to advance £100. THE TERMS. Defendants then said they were prepared to print and supply 10,000 copies for the sum of £460, payable as follows:—£100 in cash, £100 within a fortnight, and the balance on delivery of the first 1000 copies. In the event of her not paying, then everything becafne their property. Further, plaintid: was to undertake to make an absolute assignment to them of her rigi-na and interest in tho book when called upon to do so. It was not until December 3rd that ho heard of the mortgage to Boyle and Cotterill. ne considered that sho had broken her contract straight away. Plaintiff replied that there was no harm, as it was only a temporary matter. She was going s to clear them, as the 2000 copies taken by the Government would pay them ail. Just before Christmas he went to Wellington on his company's business, and said he expected her to give him an assignment at once. She was quite agreeable to this course, as she had seen the members of the Government in Wellington a few days before, and was quite satisfied they would take 2000 copies. Eventually plaintiff signed the deed of assignment at Wellington on January 15th. He had no reason to believe she did not understand the nature of the transaction. She was a remarkably intelligent woman. At that time he had made a cash advance of £20, so she was owing him £290. THE GOVERNMENT ORDER. Pkintifl) sailed on January 17th in the Kuapehu, and paid for her passage at the last moment. On : tha day she sailedi she sent a rough hatch of advertisement copy. Five days after receiving Mr CotferiH's instructions, the book was in circulation, and was on defendant's stall at th© Exhibition. After sending a specimen copy to Mr Donne, he received an order for two hundred copies. He waa in a great state about this, and was disappointed. Be; saw that the whole thing had miscarried. He expected an order for at least one j thousand copies from Mr Donne, and another thousand from tho Government, and instead only got an order for t«'o hundred. Witness executed an order for one hundred cojpies for the Ooeanic Steamship Company at a special price under directions left by the plaintiff. Tha book waa welt advertised, being reviewed by nearly every paper in the colony. He did everything he could to get il into circulation. Plaintiff wrote to him in March from the Lyceum Club, saying she could get advertisements for the book in London, and he gatbereoi ahe contemplated bringing out a, new edition in London. There was no arrangement whereby she was to deal l with the publication at Home. There was no question about freight. Continuing his evidence, Mr Whitcombe asserted that not a penny of the £270 had ever been paid by the plaintiff. His firm printed 5000 copies, and rup to July Ist, 1907, they had only isohi 625 copies; 100 were sold to the Australian and American Shipping Company at 3s, 200 to the Tourist Department afc 6s, and 325 were sold in. their shops, to be accounted for at 3s 9d each. He contended that he was entitled to the book. In October, 1908, he estimated that 750 copies of the hook had been' disused of. It was now the property of his firm. Before plaintiff left New Zealand, she sair_! to witness: "Mr Whitcombe, I could hug you for publishing the book." He said: "Well, look here, don't you make any mistake about this, we are not philanthropists; you will have to assign the interest of that (entirely to us before I do anything." Plaintiff was so confident over the thing that she would have signed almost anything. When she was going to England he told her that her foolish action would result in the wrwkage of the whole thing. It would have paid him better to have the £470 than all' the blocks, photographs, and books. It was disastrous for his firm. THE VERDICT. Mr Justice Grantham, in summing up, said that the plaintiff was optimistic, end thought the book would go: She was a persona grata among the members of the Government. The correspondence showed that Mr Whitcombe was a man of honour, and was dealing with her fairly. Mr Whitcombe's evidence was not contradicted. After consulting for half an hour, the jury found for the defendants on all counts, and judgment was entered accordingly.