C. Counts III and IV - Breaches of Contract and Implied Contract
A contract must contain: H( I) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration." Mont. Code Ann. § 28-2-102; Interstate Prod. Credit Ass'n. v. Abbott, 726 P.2d 824,826 (Mont. 1986). The parties' "consent ... must be free, mutual, and communicated by each to the other." Mont. Code Ann. § 28-2-301; Abbott, 726 P .2d at 826; See also Keesum Partners v. Ferdig Oil Co. Inc., 816 P .2d 417, 421 (Mont. 1991). lfthe contract's terms "are stated in words," an express contract is found. Mont. Code Ann. § 28-2-103. I f the "existence and terms" o f an agreement "are manifested by conduct," rather than words, an implied contract mayexist. ld. An implied "contract arises not from consent of the parties but from the law of natural justice and equity, and is based on the doctrine of unjust enrichment." Brown v. Thornton, 432 P.2d 386, 390 (Mont. 1967).
Assertion of a claim for breach of contract requires privity of contract between plaintiff and defendant. State ex reL Buttrey Foods, Inc. v. Dist. Court of Third Judicial Dist., 420 P.2d 845, 847 (Mont. 1966). The Court has not found and the parties have not referenced controlling authority or persuasive case law in the Ninth Circuit directed to privity ofcontract between an author or publisher ofa book and a reader who purchased such book. The Second Circuit's principle that a news publisher is not in privity with the publication's purchasers, absent "fraud amounting to deceit, libel, or slander" is, however, persuasive. First Equity Corp. of Fla. v. Standard & Poor's Corp., 869 F.2d 175, 179 (2d CiL 1989); See also Jaillet v. Cashman, 115 Misc. 383,384 (N.Y. Sup. Ct. 1921).
The Ninth Circuit has cited First Equity in holding that a book publisher owed no duty to a car dealership owner for allegedly publishing errors concerning emission systems in automobiles. Sinai v. Mitchell Books, 996 F.2d 1227 (9th Cir. 1993). Incidentally, Lacoff v. Buena Vista Pub.. Inc., 183 Misc. 2d 600, 611 (N.Y. Sup. Ct. 2000) cited Sinai in supporting that publishers have no duty to investigate the accuracy of its books. Lacoff dismissed a consumer action against a publisher and arranger of a "how to" book for alleged false claims within the books. While contract claims were not discussed in detail in those cases, they nevertheless serve as a starting point for analyzing privity as it relates to contract formation and contract law.
Plaintiffs' contract claim asserts that: (1) "Mortenson, Relin, and Penguin offered ... the Plaintiffs and the class" (2) "nonfiction and true stories of Mortenson's activities," (3) "Plaintiffs ... paid for, and received, the ... books," (4) but many "representations made in the books were false, misleading, deceptive, and contrary to the agreement.,,27 Plaintiffs and the class are said to have suffered damages as a result.
The Complaint contains no allegations that the parties entered an express contract with terms expressed in "words." An express contract is not well- pleaded. Iqbal, 556 U.S. at 686-87; Twombly, 550 U.S. at 555-56.
Plaintiffs' alternative breach of implied contract claim states that, "[b]y writing, publishing, advertising, marketing, and promoting [the Books] as nonfiction and true stories, the charaeteristics of said books became an implied contractual condition of sale upon the purchase thereof by the Plaintiffs and the class."28 Defendants respond to the contract claims with the argument that the Complaint does not allege Plaintiffs communicated with any Defendant, and therefore, consent is not found, and there is no privity of contract, which Montana requires in contract claims. See Buttrey Foods, Inc., 420 P.2d at 847 (complaint alleging breach of a lease agreement alone, without establishing the requisite privity of contract between the parties, fails to state a claim).
The Court cannot accept as true, and as a matter of sufficiency of pleading, Plaintiffs' conclusory statement that H[b]y writing, publishing, advertising, marketing, and promoting (the Books] as nonfiction and true stories, the characteristics o f said books became an implied contractual condition o f sale." More is necessary if an implied contract is to be found.
