that an action of ejectment cannot be maintained by a party where the legal title is in somebody else. That general proposition is stated by him too The legal title may be subdivided into several estates. There may be a legal title which is a fee-stimple; there may be a legal title which is an estate in remainder; there may be a legal title which is a lease, the leasehold interest being in the lessee, and the t.itleof the fee in the lessor. Any of these is sufficient, if the party ont of possession, to maintain an action of ejectment. The proposition is still stronger in most of these western states, where the language of the statute is that any party out. of possession of real estate may bring an action to recover. But, conceding that in the United States courts a party can only recover on a legal title, as contradistinguished from an equitable title, I think that counsel for defendant in this case has not considered the fact that the plaintiff in this case, while he has a legal right of present possession, will have ll.n equitable right to obtain the title from the railroad company when the money is all paid up. He has the legal right to the possession of that property if the vendor can give such a legal right, because the vendor has about $2UO of the purchase money, and has ag¥eed that the plaintiff shall go into posse:3sion,-take possession of, cultivate" and build, I think, is the language; something to that effect,-whicli necessarily implies a right of possession. Now, taking the title of the railroad company, and the right which it has conferred on its vendee to possession, there is in this plaintiff a strict legal right of possession in this property, which does not depend upon any equitable proceedings whatever. If the defendant has a better right to the possession, he can show it; but as the papers st.and I am of opinion that the contract between the railroad company (which in this motion is conceded to have a legal title-, with the plaintiff in this case, which give.. him the right of possession of the property, is a legal contract, and conferred the legal right of possession. The motion in this case is, therefore, overruled.
VOXTRACT TO SELT,
DELlYEH STEEl, RATLs-BnEAcrr.
As, construing the contract, the breach of which is alleged in this case, in the li)!"ht of the parol testimony, it appears !hat the giving of by defendant, as to how the steel rails which plaintiff was to deliver to him should be drilled, was a condition precedent to be performed by him before plaintiff could proceed with the proper execution of its contract, the neglect and final refusal of defendant to give such directions was of itself a breach of the contract, which excused plaintiff from the actual manufacture of the rails, and an actual tender of them to defendant, and for such breach of contract it is entitled to damages.
I'ITTSBURGH BESSEMER. STEEL RA.IL CO. v. HINCKLEY.
SA1rE-MEASUllE OF DAMAGES-PnOFIT.
The rule in awarding damages in snch a case for a hreach of contract is' ,to' make the plaintiff as nearly whole as he can be made in money damages; or.}n: other words, to leave him as nearly as possible as well off as he would been if defendant had performed his cant mct; and he is entitled to recover the' actual profit that he would have made had the contract heen performed. '
At Law. Jewett, Norton & Larned, for plaintiff. Gco. W. Cotherin, for defendant. , ,,' BLODGETT, J. This is an action to recover damages f'or'ilWdF leged breach by defendant of a contract made hi'J11's,elf' arid the plaintiff on the eighteenth day of February, 188i, wne'l'ebtPI,dintiff sold to defendant 6,000 gross tons of first quality steeL)rdits;,t6I ·1"1,1., weigh 1)2 pounds to the yard, for which defendant agre'eq to pay plaintiff at the rate of $58 per tun of 2,240 pounds, delivered"fro\:)'l:in' board cars at Chicago, Illinois; 1,000 tons of which'iail's,'were"tb'pa delivered in May, 1880, and the balance delivered at 1tll'e'th:teM '2;500 tons per month, after July 1, 1882. By the the rails were to be drilled as directed by the defendilnt:";""";,q,,,,, It appears from the proof in the case thai the ,Pl'aiilti,ff,hb,tifi,ie,d tHe defendant in the forepart of the month of to co.mmence rolling, t?e ending Mar: hO,OOtdl1s: of ralls whlch were to be dellvered 111 May, and requested hUrl,tofbrward drilling directions at once. This the defendant 'todd; but requested the plaintiff to delay rolling the rails for 'May delivery. Plaintiff did so delay to roll and cl'eliver'anYl"ails in Muyi but during the month of 'May again urged'thedefeiidant drilling directions, in order that it might cOl'ririiiJIlce of its contract; and from time to time, during tile' months of June, and July, defendant was repeatedly,requested ing directions, and repeatedly requested tqtake' bqi' elined to do so, and finally, in the latterpai:t of the Itionthbf;July'; defendant absolutely refused to give drillillg direc'tiOils for the ,'n:ianu. facture of said rails, and notified the plaIntiffs UHlthe could and would not accept and pay for proof a'ls'o !'!J'iit mediately after the making of the contract betlVeen the pla'intifT 'and defendant the plaintiff purchased the material ou't of whichtoman-, ufacture the rails called for by the coritract, anc1was,at all' times up to the time of the absolute rehisal oftl1e defEmdant' to accept said rails, ready and able to manufacture said rails and. deli\'erthe same according' to the terms of the contract, ,., " , , " '" " 'rile contract, taken in conneCtion with the parol te'stimimy itt the case, satisfies me that the drilling ,directions-that is,. th'e'directions where and how to drill the holes near the ends of the rail bY"'iJich the fish-plates or splice-bars are bolted to the an important item in the of therails,antl that if the plaintifi had made the rails and dl'illedthem without tbe directions of the defi:Jndant, he could legally have refused to accept them on tLlat gi'otlud,as
it aIWears from the proof that drilling is now considered a part of the luanufacture of the rails; that a steel rail is usually by the manufacturer; and that the purchaser gives directions as to how it shall be done. Read, therefore, in the light of the parol proof offered by the defendant at the trial, I think the giving of drilling directions by the defendant was a condition precedent to be performed by the defendant before plaintiff could proceed with the proper execution of its contract, and that the neglect an-d final refusal of the defendant to give drilling directions was, of itself, a breach of the contract on the part of the defendantwhich excused the plaintiff from the actual manufacture of the rails and the actual tender of them to the defendant. I think the testimony in the case fully justifies the conclusion that defendant's neglect and refusal to furnish drilling directions was for the mere purpose of delay, and that from early in the month of May defendant did not intend to fulfill this contract. Not only had there been a large decline in the price of steel rails upon the market, but the defendant had failed to make satisfactory financial arrangements to enable him to pay for the rails. For a time, therefore, he asked and obtained from the plaintiff a delay and postponement of the time of delivery; but, finally, when pressed by plaintiff to give the directions for drilling and to take the rails, he frankly told the agents of plaintiff that he could not pay for the rails, and would not receive them. This statement by defendant, that he would not perform the contract by accepting and paying for the rails, was also a breach of the contract by defendant, and entitled plaintiff to damages. The only question in the case, therefore, as it seems to me, is what damage the plaintiff has sustained by reason of defendant's breach of this contract. The rule in awarding damages in cases of this character for a breach of contract is to make the plaintiff as nearly whole as he can be made in money damages; or, in other words, as nearly as possible leave him as well off as he would have been if the defend· ant had performed his contract. Here was a manufacturing corporation, with expensive machinery and plant, and compelled, from the nature of its business, to invest large sums of money in iron are, pig iron, spiegel, coke, and other material, and in labor, for the purpose of performing this contract. The proof shows that the plaintiff, on making this contract in good faith, purchased the material necessary to fulfill it. The proof as to the cost of these rails to plaintiff rests on the testimony of two ,,·itnesses,-H. P. Smith, the manager of plaintiff's mill, and Richard C. Hanna, secretary of the :North Chicago Rolling ),Iill Company. }'Ir. Smith states that the cost of manufacturing the rails in question, at plaintiff's mill in Pittsburgh, was $.,15.12 per ton, and that the freight on them to Chicago, where they were to be deli,ered to plaintiff, was three dollars per ton, making the total cost of manufacturing and deli,ering
PITTSBURGH BESSE:VIER STEEoL RAIL CO.
the rails to defendant, under:the terms of this contract, $48.12 per ton; while Mr. Hanna states that it cost his company $50 per ton to make such rails in Chicago, and that from information he had derived from his experience in the business plaintiff could make the steel rails called for by this contract in its mill at Pittsburgh, and deliver them in Chicago, at just about what it cost the North Chicago Rolling Mills Company to make them here. Mr. Hanna has no interest in the event of this suit, is not connected with either party, and I conclude that his testimonv as to tile cost of these rails here is the most reliable, and that it in fact, have cost the plaintiff $50 per ton to have made these rails and delivered them to the defendant, in accordance with the terms of this can tract. The proof also shows that steel rails declined rapidly from about the time this contract was made, so that during the months of August and September they were not worth as much by from $10 to $12 per ton as the contract called for. 'fhe proof, however, further shows that after the plaintiff was informed that defendant would not take and pay for the rails at the time called for by his contract, the plaintiff sold to a railroad company in Michigan 4,000 tons of steel rails, which were ma,n· ufactured out of the material provided for the fulfillment of this contract with the defendant, for which plaintiff received $54.60 per ton, delivered at a point on Lake Huron. These were 35-pound rails, and it cost the plaintiff $49 per ton, as the proof shows, to manufacture them, and $4 per ton to transport them, leaving a profit of $1.uO pOl' ton to plaintiff, and this profit should be deducted from the difference between the contract price with the defendant and the cost of making the rails under the defendant's contract; that is to say, the difference between the cost of the rails in Chicago to the plaintiff and the contract price is eight dollars per ton, which on the 6,000 would amount to $4-8,000. From this should be deducted the profit of $1.60 per ton on the 4,000 tons of rails sold in Michigan, amounting to $6,400, leaving $42,400 as the loss to which plaintiff has been subjected by this breach of defendant's contract; and it seems to me, in the light of well-settled authorities, that this should be and is the true measure of plaintiff's damages. In the case of the Philadelphia, TV. d· B. R. Co. v. HOIC(ml, 13 How. 307, where the opinion was delivered by :'11'. Justice CURTIS, it is said:
"But it by no means follows that profits are not to be allowed, understanding as we must the term' profits' in this instruction as meaning the gain which the plaintiff would h;n'e made if he had been permitted to complete his contract. Actual damages clearly include the direct and actual loss which the plaintiff sustained, propter rem ipsa!n non lznoitare. In case of a contract like this, that loss is, among other things, the difference between the cost of doing the work and the price to iJe paid for it. This difference is the inducement and real consideration which causes the contractor to enter into his COIltract. For that, he spends his time, exerts his skill, uses his capital, and as-
sumes the risks which nttend the enterprise; and to deprive bim of it when tbtl other party has Lroken the contract and unlawfully put an end to the work, would Le unjust. There is no rule of law which requires us to inflict this injustice. Wherever prolits are spoken of as not a suLject-matter of dam3/;"S, it will be found that something contingent upon future bargains or speculations or states of the markets are referred to, and not the di1Ierence between the agreed price of something contracted for, and its ascertainable value or cost. We hold it to Le a clear rule that the gains or profit, of which the contractor was deprived by the refusal of the company to allow him to proceed with and complete his work, was a proper suuject of damages." And the same rule is announced in the late work of Sutherland, :Dam. vol. 1, p. 117, where it is said: "Where a party has attempted to perform labor from which a profit is to 'Spring as a direct result of the work done at the contract price, allli he is pre'Vented from earning this pront by the refusal to act of another party, the loss of this pront is the l!ired and natural result which the law will assume to be the breach of tile contrad, and he is entitled to recover it, with proper damages; and this he will be entitleu to estaLlish Ly showing how much less tlJan the contract price it will cost to do the work or perform the contract." And the conclusion just stated by "Mr. Sutherland is supported by the citation <.of numerous recent cases. And in 111asterton v. lil(1yor, etc., of the City of Brooklyn, 7 Hill, 61, the same rule was adopted. So, too, in U. S. v. Speed, 8 Wall. 77, the court said, by Mr. Justice
"And we do not believe that any safer rule, or one nearer to that supported by the general current of authority, can be found than that adopteu by the conrt, to-wit: The diJIerpnce Letween the cost of doing the work and what the claimant was to rec0ive for it. making reasonable deuuction for the loss of time engaged, and for relcase from the care, trouule, risk, and responsibility attending a full execution of the contract." The proof in this case abundantly shows that the plaintiff could not have manufactured its material into rails and sold those rails upon the market without sustaining a greater loss than the difference between the price called for by this contract and the cost of making the rails; in other words, if the plaintiff had manufactured the rails in pursuance of this contrs.ct, and, on defendant's refusal to receive them, had put them upon the market and sold them at the current market price, the loss to the plaintiff would have been greater than the amount of damages I have arrived at by the rule aoopted. T11ere is, therefore, no allowance or deduction to be made in tbis case for a "release from the care, trouble, risk, and responsilJility attending a full execution of the contract," because the plaintiff was obliged to go upon tlle general market to find a new customer for its goods, and sell them at a lower price tllan the difference between the cost of manufacturing and the contract price, instead of receiving the profit which the contract with the defendant entitled it to. The risk, care, and trouule, therefore, devolved upon plaintiff by reason
of the breach of the contract, rather than any which would have followed its performance. I must, therefore, find the issues for the plaintiff, and assess the damages at $42,400. - .
SCHREIDER and others, who sue as well for the United States as themselves, v. SHARl'LESS. 1
(District' Court, E. D. Pennsylvania.
April 17, lSSS.)
AUATDIENT BY DEATH OF PAHTy-PENALTIES AND FOHFEITUllES-COPYRIGIIT. '
An action for the penalty provided by aet of congress (section 4965, Hey. St.) lor infringement of a copyright, aoates by the death of the defendant. 2. FEDEHAL .JUHISDlCTJOX-STATE LEGJiLATJON-SECTJON 721, HEY. ST. Section 721, Hey. St., providing that" the laws of the several states, except where the constitution or treaties of the Unitcd !State., otherwise require or provide. shall be regarded as rules of decision in tr,als at common bw in the courts of the Unitcll !States, in cases where they apply," refers to cases where the federal courts obtain jurlstlictlOn hy reason of the citizcn.hlp of p,/rties, and has no application to those cases in which the jurisdiction of the court arises out of the c([llseof actioll, and consequentlyinvol,es rights over which the state legislature can cxereise no authority, except in so far as the same may relate to the method of proceeding allli pructice.
Motion to Quash a Writ of scire facias against the legal represent- : atives of the defendant, who died after issue joined, but before trial. This was a qui tam action pursuant to section 49G5, Rev. St., brought by Francis Schreiber and others, suing as well for the United States as for themsclvG3, against Charles L. Sharpless, to recover the statutory penalty for the copying, printing, publishing, selling, and exposing for sale by the defendant of a photograph copyrighted by plaintiffs, and ,vas for the same matter as the case of Schreiber v. 6 FED. REP. 175. After issue joined, but before the trial, the attorney for defendant suggested the death of defendant, and plaintifIs issued a scire facias against his executors, whereupon this motion to quash was made. C. J., ,vas present and concurred in the following opinion. H. P. Brown, Asst. Dist. Atty., and JoHn K. Valentine, Dist. Atty., for the United States. A. Sydney Diddle, for plaintiffs. E. Hunn, Jr., for defendants. BUTLER, J. The defendant having died, the plaintiff issned a scire facias to bring in his legal representatives. A motion to quash this writ raises the question before us. By agreement of parties, the question was heard before the circuit as well as the district judge·
. 1 lleported
by Albert B. UUllbert, Esq., of the Philadelphia bar.
That the cause of action terminated with the defendant's. death, unless saved by statutory provision, is clear. That no such provision, in direct terms, is made by federal statute, is equally clear. An act of the state legislature preserves personal actions generally against abatement by death of parties, and the provisions of this statute are invoked by the plaintiff in support of his writ. That they are inapplica ble, unless the federallegisla ture has provided otherwise, is also clear. Ih is urged, however, that such provision has been made; and in support of this position our attention was directed at tblj outset to the act of 1872 (section 914: of tbe Revised Statutes) reIa'ing to modes of proceeding and practice in civil causes,and to the provisions of the judiciary act of 17&D, (Rev. St. §§ 721, %5.) It is now conceded, however, that the act of 1872 falls short of the case, and reliance is placed exclusively on the sections referred to of the act of 178D. The first of these sections reads as follows:
"Sec. 721. The laws of the several states, except where the constitution or treaties of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United in cases where they apply."
That tbis section does not sustain the plaintiff seems quite plain. The laws of the state are made "rules of decision" in tbe federal courts, in cases where they apply. That is to say, in cases where the federal courts obtain jurisdiction by reason of the citizenship of parties, the statutes and customs of the state, "'hich lawfully affect their rights, shall be regarded as rules of decision in passing upon such rights. The section can have no application to cases in which the jurisdiction of the court arises out of the cause of action, and consequently im"ohOes rights ovor which the state legislatnre can exercise no authority, except, of COurS3, in so far as the section may relate to the method of proceeding and practice, and, in this respect, it is virtually superseded by the clause before referred to, of the aet of 1872. Nor does the remaining section, D55, afIord the plaintiff any better support. It reads as follows:
"\\"hcn either of the parties, ,vilether plaintiff, petitioner, or defendant, in any suit in any court of the united States,dies before final jUdgment, the executor or administrator of such deceased party may, in case the cause of action sUrYi\"Cs ur law, prosecute or defend such suit to linal judgment."
This simply provides for bringing in the legal representati,cs, where a party dies pending suit, in cases wherein the "cause of action sun-ives by law." The purpose of the section is to give effect in the federal court to state statutes, preserving causes of action cognizable in the state courts, and over which the state legislature may lawfully exercise authority,-causes of action of which the federal courts obtain concurrent jurisdiction, by reason of the citizenship of parties. In the case before us the cause of action, founded upon a
federal statute, is beyond the reach of state legislation. The local la\\" inyoked has, therefore, no effect upon it; is consequently inop-
BURROW-GILES LITHOGRAPHIC CO.
pEcable and not within the terms of the section, 955, above cited. All the cases invoked are consistent with this view. Our conclusion, therefore, is, that the right of action terminated with the death of the defendant.· Were it held otherwise, for the reasons urged by counsel, there would be one rule of action in this respect governing suits by the United States for penalties for infractions of its copyright laws in one state, and another in other states, dependent upon local legislation respecting the survival of action.
Vide U. B. v. Richardson, 9 Co., infra.
80'!; Barony v. Burrow-Giles Lith.
(Circuit Court, 8. D. New York.
April Term, 1883.)
COKSTITUTIOKALITY OF STATUTE-\VIIEX COURT WILL DECLARE VOID.
The court should hesitate long, and be convinced beyond a rea'onable doubt, b'lfore pronouncing an act of congress invalid. The argument should amonnt almost to a demonstration. If doubt exists, the act should bc sustained -the presumption is in favor of its vaHdity. '
COPYIUOIIT-HEV. ST. § 4:);i2-PnOTOGllAPIIS AND NEGATIVES.
The act of (Hcv. 8t. § 4952) granting copyright protection to photographs, and ncgatives thereof, is not so clearly unconstitutional a8to authorize the court at nisi prius to declare it invalid.
IN COPYIUGIIT, N.A:\IE, ASD DATE.
The olJject of inscribing upon copyright articles the word "copyright," with the year when the copyright was taken out, and the name of the party taking it out, (Laws 1874, c. 301,) is to giv" notice of the copyright to the pulJlic; to prevent:J. person from being punished who ignorantly and innocl'ntly reproduces the photograph without knowledge of the protecting copyright.
8.UIE-IXITL\L OF CIIHlSTLIS K.uII': Al>D FULl, SURN.UIE.
Inscrting in such a notice the initial of the Christian nanw nnd the fnll surllllnlC is a suflicient compl'auce with the law; it does not violate the letter of the law, and accomplishes its olJjcct
This was an action at law for the violation of the plaintiff's copyright of a photograph of Oscar Wilde, ,,'hich the defendant had copied by the process known as chromo-lithography. It was admitted on the trial that the plaintiff had taken all the steps required by law to secure the copyright except to insert his Christian name in the notice, and there was no dispute as to the number of copies printed by the defendant, the value thereof, or the number on hand. The notice of copyright on the plaintiff's photographs "'as as follows: "Copyright, 1882, by :N. Sarony." A jury ,,-as waived, and the case was argued upon questions of law only, which appear in tLle opinion. Gllc1'Ilsey Sackett and A. T. Garlitz, for plaintiff. Stine d; Caiman and D. Cedman, for defendant. COSE, J. This is an action to recover-pursuant to section 4965 nf the Revised Statutes-fur the infringement of a copyrigllt of a pllOo