CRAIG V. M'ARTHUR.
and another, Partners, etc., v. McARTHUR and another, Partners, etc.
(Oircuit Oourt, D. Minne8oia.. July, 1886.)
No question of law appears to have been raised in this case. The damages sought by the defendants in their counter-claim were rejected as being too remote, and judgment rendered fot' the balance founrl rlne nll\intiffs on their contract.
Action to recover the contract price on an agreement to furnish atone for mason work. Suit on contracts. Jury waived. . Gordon E. Oole and Lewill .t Le8lie, for plaintiffs. Bigelow, Flandrau X Squire8, for defendants.
NELSON, J. On February 1, 1884, a contract was entered into between the plaintiffs and defendants, by which it was agreed that the plainti.ffs should furnish all the impost and arch stones for the build· ing of a viaduct over the St. Paul & Duluth Railroad, on Seventh street, in the city of St. Paul, at the price of $8.50 per cubic yard. dressed, and delivered F. O. B. at Mankato, Minnesota. "F. O. B." means "free on board cars." This contract is evidenced by the following letters:
"MANKATO, MINN., February 1, 1884. on Seventh street, in St. Paul, at eight dollars and fifty cents per cubic yard, dressed, and delivered F. O. B.at Mankato. Minn. We also offer to furnish the balance of the masonry required inyour contract with the city of-St. Paul for the improvement of Seventh street (except coping, curbing, and gutter o ing) at five dollars per cubic yard, dressed. or at two dollars and fifty cents per cubic yard, undressed, F. O. B. in Mankato. Minnesota. "W. B. CRAIG & Co." "ST. PAUL, MINN., February 1, 1884. .. W. B. Oraig & 00., Manlwfo. Minn.-GENTLEMEN: In answer to your letter of this day, we accept your proposition of eight dollars and fifty cents per cubic yard for the impost and arch stones for the viaduct over the St. PaUl &, Duluth R. R., in St. Paul, dressed, and F. O. B. in Mankato. As to your offer for the stone for the balance of the masonry for the Seventh-street improvement, we will answer at an early day. and we hope circumstances will be such that we can accept the same. "Very truly, McARTHUR BROS."
"McArthur Bros., St. Paul. Minn.-GENTLEMEN: We offer to furnish you the impost and arch stones for the viaduct over the St. Paul & Duluth R. B..,
The plaintiffs' offer of February 1, 1884, contained two independ.ent propositions: one to furnish impost and arch stones, and the .other to furnish stone for balance of masonry. The first was accepted, and on July 5, 1884, was modified, with consent of parties, by the following letter:
"MANKATO, MINN., July 5, 1884. "Mess1's. McArthur Bros., Contractors 1'01' the Improvement of Seventh Street in andj'o1' the City of St. Under our agreement to furnish you the impost and arch stoneS' for the viaduct over the St. Paul & Duluth R. H. embraced in your contract for the improvement of Seventh street, we have gotten out, and have shipped you, the greater part of about forty impost stones. These were dressed to 'lie on edge' with the assent, as we supposed, of the city engineer, but they have been rejected by him. and we find it would be difficult and tedious to get the impost stone of dimensions required on natural beds, We therefore propose the following modification of Ollr agreement to furnish said impost and arch stones, viz.: 'I'lJat part of the impost stones below the springing line of the smaller arch to be reduced from eighteen inches, as now required, to twelve inches, and that part of the same below springing line of large arch to be reduced to ten inches; yOll to pay us two hundred dollars towards cost of dressing the rejected impost stones. Those of them sent you, or which may be sent, to be used as part of stone for other maSonry which we are furnishing you. In consideration of the foregoing conditions being accepted by you, we will get out, dress, and load on cars for you, at Mankato, within seventeen days, all theimpost required for said viaduct, and the arch-stones promptly thereafter, as required for the work; said stones to be got out and dressed to lie on natural beds, and in accordance with specifications for said work, and as. directed by said city engineer W. B. CRAIG & CO." " W. B. 01'aig J[' Co.: The city engineer having agreed to the change in dimensions as proposed by you, we accept the foregoing proposition of yours. "McAHTHUR BIWS."
On May 10th, the offer to furnish the balance of the stone in letter of February 1, 1884, not being accepted, plaintiffs and defendants entered into the following contract by letters:
"MANKATO, MINN., May 10.1S84. .. Messrs. Mc.Arthu,r Bros., Oon's Se-oenth-street Improvement, St. Paul, Minn.-SIRS: We will furnish you the stone suitable for following mason work under your contract with city of St. Paul, as per their specifications, uncut, free> on board cars, in Mankato. at following prices, viz.: Stone for celltel' pier St. Paul & Duluth viaduct; stone for spandrel or parapet walls St. Paul & Duluth viaduct; stone fur spandrel and backing St. Paul & Dulutb viaduct; stOlle for abutments at east end of bridge, Trout Brook valley; stone for Brook-st. wall. We wil! furnish sixty-six and two-thirds (66 2-3) per cent. of above-mentioned stone at two dollars per cubic yard, and thirty-three and one-third pel' cent. free of charge to you, the consideration for the thirtytlJree and one-third per cent. being included in price for the sixty-six and two-thirdl.l per cent. And any or all stone which you desire to cut before being shipped we wiII deposit in a suitable place for cutting. and, after they have been cut, we will load them on cars without extra cost to you. We will furnish the above stone promptly, as required by you. "Yours, very resp'y, B. CRAIG & CO." "We accept the foregoing proposition. McARTHUR BROS."
Between the time of the acceptance of the proposition to furnish impost and arch stones and the letter of May 10, 1884, some correspondence and conversation was had between the parties with reference to furnishing all the stone required, in which the plaintiff objected to furnish the impost and arch stones unless he secured the,
contract to furnish all stone required. In my opinion the minds of the parties met February 1, 1884, relative to furnishing the arch and impost stones, and that contract was a complete and existing one. It was subsequently modified by consent of parties. See letter and acceptance dated July 5, 1884, supra. 'rhe defendants appointed Russell agent and inspector to examine and check stone furnished. The plaintiff delivered, nnder the first contract, 1,262 yards, measured before dressing, according to his interpretation of the contract; but the defendants contend that the measurement should be made after dressing, and that, according to snch measurement, only 1,073 yards were delivered. 1 think the defendants are right in their construction. The impost and arch stones were to be delivered dressed, free on board cars, at $8.50. The value of this amount of stone is $9,120.50. The amount of stone delivered under the.contract of May 10, 1884, measured 1,192 yards, which had been dressed by defend!tnts, and 554.22 yards backing; making, in all, 1,757 yards. To this must be added the waste upon the 1,192 yards cut by the defendants, which, figured at 10 per cent., brings the amount of stone delivered under contract to 1,875 yards. At $2 per yard for two-thirds of this amount, the value is $2,500; making the value of stone delivered under the two contracts $11,620.50. The plaintiffs claim in addition extra work and use of plaintiffs' machinery, by request of defendants or their agent, $298 for turning stone, delivered under contract of May 10th; $200 for "tone delivered previous to modified contract of July 5, 1884; and $114.80 for back-dressing some of the ring stones not in the specifications; and $46.50 for bridge stones and nosing furnished, which in the specifications were stated as granite, and not the stone to be furnished, I think, under the contract of February 1, 1884; also $87.50 for work in drilling, done at request of defendants' foreman and agent. These claims are allowed, but some others set forth in the pleadings are disallowed; being stone contracted to be furnished under the contracts according to plans and specifications for the work, includ. ing coping. The defendants in their answer set up several counter-claims, viz., damages for failure to deliver on time agreed on, and for stone not according to contract. I reject all of them. The damages as proven are too remote. The defendants have paid on account $12,076.16, which leaves a balance of $291.14 due plaintiffs, for which amount judgment is ordered, with interest from December 6, 1884. v.27F.no.14-58
HENRY BILL PUBLISHING CO.
(Circuit Court, S. D. Ohio, July 3, 1886)
COPYRIGHT-MoNOPOLY OF SALE-INFRINGEMENT BY OTHER DEALERS.
If the owner of the copyright wishes to sell the published work directly and only to individual subscribers, the statute protects him from interference by other dealers who offer surreptitiously obtained copies of the genuine work without his consent, unless there be something in the circumstances of the particular case to estop him from relying on the privileges of his monopoly.
2. SAME-SALE BY SUBSCRIPTION-BREACH OF TRUST BY AGENT-FRAUDU'
The defendant procured genuinely printed copies of Blaine's "Twenty Years of Congress," the copyright of which belonged to the plaintiff, who sold the work only by subscription to single buyers, from a dealer who had obtained them by purchase of an agent of the plaintiff to whom they had been sent for delivery to such subscribers, but without the knowledge or consent of plaintiff and against its instructions to the agent, and in violation of his agreement with the plaintiff not to disobey its instructions in that respect and of his bond to that effect, of which fraudulent conduct the defendant had no notice; but he abstained from making any inquiry into the circumstances of the dealer's possession and right to sell, well knowing that the plaintiff owned the copyright and refused to sell otherwise than by subscription. Held. that he would be enjoined from selling these copies. and to account for the profits; that the above-stated circumstances required that he should have made inquiry, and that the failure to make such inquiry was equivalent to notice of the facts; but that the court had no power to enjoin the defendant from future dealing in the work without the consent of the plaintiff, or from any future interference with the trade of plaintiff's agent in the city where defendant resided. 3.
LENTLY SOLD COPIES OF THE GENUINE WORK-NOTICE.
If the owner of the copyright undertake, by contract, to attach conditions of restriction to his sale of copies of the work, as, if he sells to canvassers upon agreement that they shall sell only by subscription, he must rely solely on the ordinary remedies for a breach of that agreement, and it is not within the protection of the copyright act. But it is otherwise if he sell the copies directly to subscribers through agents having no ownership of the copies sold, as in this case. The incidental protection of the statute belongs only to the owner of the copyright or some part of it, and cannot be transferred by him to mere owners of the copies having no interest in the ownership of the copyright.
In Equity. The plaintiff is the owner of the copyright of a book, written by James G. Blaine, called "Twenty Years of Congress," and sold it by subscription only, to individual buyers of single copies. The book had never been otherwise placed upon the market by the plaintiff, or with its consent. It employed agents to solicit subscriptions and deliver the copies ordered, assigning to each a certain territory. An agent sO employed in New York, to whom plaintiff had sent a number of copies for delivery to certain subscribers procured by him, flold the copies to a book·dealer, in Troy, contrary to plaintiff's instructions, and in violation of an express agreement and bis bond that he would not sell or deliver in any other mode than that directed by the plaintiff, applying the money to his own use. It does not appear whether the Troy dealer was aware of this breach of trust or a party to it by