Pacific Seventh-Day Adventist Publishing Ass'n v. McKenney

Belcheb, C. C. This is an appeal by the plaintiff, a corporation, from a judgment rendered in its favor against the defendants, and the case comes here on the judgment roll. It is claimed that the judgment was not for as large a sum as plaintiff was entitled to recover. The facts found by the court are in substance as follows:—

In 1880 the plaintiff was a corporation engaged in the business of printing and publishing; the defendant Mc-Kenney was engaged in compiling a book, called the Pacific Coast Directory; and the defendants Hicks and Judd were partners engaged in the business of bookbinding. An arrangement had been entered into between McKenney and Hicks and Judd, by which they were to bind the directory for him, and were to attend to the distribution and sale thereof, and to collect and receive all the moneys arising therefrom. McKenney applied to plaintiff to print his directory, and plaintiff agreed to do so, provided Hicks and Judd would become responsible as guarantors for the price of the printing. Thereupon Hicks and Judd entered into a written agreement to pay plaintiff for printing the directory “ out of the first money received in collections for the same.” The plaintiff then printed and delivered to defendants five thousand copies of the directory, and the price of the printing amounted to $3,264.92. Hicks and Judd disposed of the book, and received in collections for the same more than the sum due plaintiff. They paid to the plaintiff various sums, and thereby reduced the amount due to $2,020.02. This action was brought to recover the last-named sum, and after it was commenced, a further payment was made, leaving then due only $1,510.

Subsequently, and while the action was still pending, McKenney compiled another directory, and engaged the plaintiff to print and bind the same. A written agreement was entered into between the parties, which pro[603]vided, among other things, that the collections for the directory were to he paid to the plaintiff, and that out of the gross collections all expenses of printing, binding, paper, compiling,- etc., together with all other legitimate expenses, should be paid; that of the balance on hand, after the payment of all such expenses, McKenney should receive one third, and the plaintiff two thirds, the two thirds, however, to be applied to McKenney’s indebtedness to plaintiff, consisting of the said $1,510, and $400 due for other printing; and if any surplus should remain after paying the two claims mentioned, then it should be divided equally between the parties. Pursuant to this agreement the directory was printed, bound,, and delivered for distribution by the plaintiff.