“This contract I claim to be invalid, because it was obtained from me under false representations, and because it is not equitable.
“Mr. Hunt asserts that before entering into this contract, and as a basis of this contract, he had a long conversation with me in which he fully showed me the reason of the proposed change from ten per cent. to fifteen cents on a volume. His recollection of this conversation is so vivid that he even recalls the sofa on which he sat. He thinks he sent for me, but is not quite sure. He remembers that I was disposed at first to be trifling, but he begged me to be serious, and assured me that this was a serious matter. He remembers using the expression, ‘that their house was shaking in the wind.’ He says, he explained to me over and over again the state of affairs and the reasons which necessitated the change; and repeatedly asked me, ‘Do you understand this clearly?’ and I answered that I did, and ‘Do you agree to it?’ and I said yes. He is so positive in his assurance that he expresses the wish that he could take his oath on it; the referees ask him if, in that conversation, ‘City Lights’ was included among the other books, and he replies, ‘distinctly.’ Then, in face of my repeated written and verbal assertions to him that I had no recollection of any such conversation, he fixes his eyes upon me and says, with emphasis, ‘I think, M. N., you must remember this.’
“I have already stated to the referees that I had no recollection of any such conversation or of any verbal agreement. I was willing to attribute the assertion to a mistaken impression on the part of Mr. Hunt. Now, after his positive, persistent, and circumstantial assertion, I go further. I deny his assertion in part and in whole, in every point and particular. I deny it not simply as a mistaken impression, but I deny it as a question of veracity between Mr. Hunt and myself.
“As I have said before, I cannot be called upon to prove a negative. The burden of proof lies on Mr. Hunt who asserts the positive. He admits that he has no correspondence to show it, but affirms that I admit it myself in one of my early letters by saying, ‘I dare say’ I did have such a conversation. The letter to which he refers is my second letter of inquiry, written before my faith in him had been shaken, and before the question of such a conversation had assumed any prominence or arrested my attention. I had asked him, as my letters show, why he wanted me to take less than ten per cent. He had replied, that we had talked it over and I agreed to less. I replied that I knew I agreed to it, for here were the contracts, but why did he wish me to make such contracts? My exact words were, ‘I don't remember ever talking the things over with you, but I dare say I did—or rather you talked and I nodded,—as usual. And of course I agreed, for here are the contracts that say so.... Don't you see the trouble lies back of the contracts. Why did you wish me to be having seven or eight per cent. when other people are getting ten?’ Here it is seen that in the very beginning, almost before any suspicion was aroused, and before my attention was at all fixed upon the importance of this conversation, I, first, carelessly but distinctly assert that I remember no such talk; second, I found my recognition of my assent not upon any remembered talk but upon the written contract; and third, I reiterate my questions concerning what lay back of the contract in entire unconsciousness that the talk had anything to do with it.
“So then, the only testimony which Mr. Hunt can produce of a verbal agreement which vitiates one contract and forms the basis of another, is a letter of mine in which I distinctly affirm that I don't remember anything about it! Mr. Hunt is welcome to all the sunshine he can find in that cucumber.
“Again, Mr. Hunt cannot fix the time when this explanatory conversation occurred and this verbal agreement was made; but it was the basis of a contract which was executed on the 24th September. It would naturally, therefore, be somewhere within speaking distance of that time. Now, in my statement of the case, made out on the 22nd October, 1768, and put into the hands of my friend Mr. Dane a few days after, and read before the referees, I said, ‘I think it must have been at the time this contract was made out—but I cannot be sure as to the time,—that Mr. Hunt told me that they were going to pay me a fixed sum, fifteen cents on a volume, instead of a percentage;’ adopting this course with their authors, ‘on account of fluctuations, general uncertainties, and so forth.’ In the following January my vague recollections were confirmed by finding unexpectedly, and without seeking it or knowing that I had it, a letter from Mr. Hunt dated September 23, 1764, from which I make the following extract: ‘The contract has been delayed for a sufficient cause.’ [He then gives the cause of the delay, namely, Mr. Brummell's absence]. ‘The percentage will read fifteen cents per copy, as the business times are fluctuating the prices of manufacture so there is no telling to-morrow, or for a new edition, what may be the expenses of publication. So we reckon your percentage in every and any event as fixed at fifteen cents per volume on all your books. If it should cost $1.50 to make the volumes you are sure of your author profit of fifteen cents. The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but you are all right. This arrangement we make now with all our authors....
“‘As I write, the contracts are reported ready, so I enclose them. Sign both, and send back the one marked with red X. You keep one and we the other.’
“I submit, that this extract, bearing date the day before the contract, has every sign of being fresh information. All the circumstances combine with my own distinct recollection, apart from them, to show that a new contract was made at my suggestion, not with any view whatever of changing the terms, but because I thought if a contract was necessary with one book, it was with another. I did not know that there had been or was to be any change from percentage to a fixed sum, until this letter told me. The retail price of the books had gone up to $1.50, so that ten per cent. and fifteen cents were the same. In this letter no allusion whatever is made to any previous conversation on the subject of the change from percentage to a fixed sum. Is it credible, I ask, that Mr. Hunt should have sent for me; should have assured me that this was a very serious matter; should have explained it all to me over and over again; should have repeatedly asked me if I understood it; should remember the conversation five years after, so vividly that the intensity of his convictions cannot find adequate expression in simple declaration but craves the relief of an oath; is it credible, that in his letter of the period he should have made no allusion to this conversation, but should have mentioned the arrangement as then communicated to me for the first time,—as it actually was?
“But further than this, my diary for 1764, carefully kept, with not a day missing, shows that during the whole summer and autumn preceding the 23d September, 1764, I was not once in Athens!”
[And yet again,—I set on foot an inquiry at the time but did not get an answer in season to use it before the reference,—Mr. Hunt distinctly remembered that he sat on a certain sofa in the new shop during the conversation which was the basis of the contract of September, 1764. But the firm did not move into the new shop till May, 1765!