v. Jacobus, 14 Blatchf. 337; Filley v. Child; 16 Blatchf. 376; 8ewim.g-Machine Co. v. Frame, 21 Blat'chf;431, 17 Fed. Rep. 623; Gallyv. Co., 30 Fed. Rep. 118. The facts of this case, as they appear from the .proofs, do not bring it within the principles of McLean v. Fleming, 96 U. S. 245; Frese v. Bachoj, 14 Blatchf. 432; Stocking Co. v. Mack, 12 Fed. Rep. 707; Soap 0>. v. Thompson, 25 Fed. Rep. 625; Kinney v. Basch, 16 Amer. Law Reg. (N. S.) 596, and note; and others of the same nature, -relied upon for the plaintiffs. Much and repeated consideration of this ellse discloses no apparent ground upon which the bill canbemaintainEld. Let a decree be entered dismissing the bill of complaint, with costs.
et al. v.
«(Jiro'llit Oourt, E. D. Miohigan. February 21, 1888.)
OoPYRIGlIT-"ExOLUSIVE RIGHT TO SELL BOOK-CONSTRUCTION.
The graDt of an "exclusive right to take orders for and sell" 8 book within. certain territory will not be construed as a covenant that no other.person shall sell the book in competition with the grantee. but only 8S 8 coyenant that this shall not be done with the consent or connivance of the grantor.
At Law. On motion for new trial. ' ' .. This was an action for books sold and delivered. Defendant sef'·up in defense the following state of facts: On October 3, 1884, plaintiff and. defendant entered into a written contract, by which plaintiff agreed "to grant to defendant the exclusive right to take orders for a.ud sell. in '. the territory above mentioned" (the state of Michigan) a certain book called "Huckleberry Finn," and defendant agreed to sell said book: bysu.bscription, and to pay for all books so ordered at a specified price., This book was published by the plaintiffs, and published only by them. Defendant got his prospectuses out in the fall of 1884, and at, onCe engaged canvassers, and set them at work. The book was ready for delivery the latter part of February, 1885, and at that time defendant commenced to deliver it to his subscribers. About this time the book appenred in the book-stores of several cities of Michigan, and was, both· by advertise,. ment and otherwise, offered for sale, and sold at a price much lower than defendant had bound himself to sell them. In consequence of this,de,. fendant's monopoly under the contract was practically destroyed; ,He lost the profits that would have arisen from the sale of the booH;,;aud, also lost the value of his time expended In preparing for the canvass. The book-dealers, who purchased and sold in Michigan, bought at regular supply stores ofthe trade, and had no notice of defendant's claim.. ' There was no evidence tending to show that plaintiffs were privy to the lation of the book, or that they knew it was· being sold in this state to the prejudice of defendnnt's rights under his contract. The court held this to be no defense, and directed a verdict for the plaintiffs.. Defendant moved for a new trial.
S. M. (Jutcheon, for plaintiffs. W. L. carpenter and H. H.· Swan, for defendant.
BROWN, J., (after stnuing the facts above.) Upon the trial of this case . it was assumed by the court that if defendant's territory was invaded by <lthers, who were selling in competition with him, it might be possible for him to maint!tin a suit against them, either in his own name or that Of the plaintiff, to enjoin such sale. Upon reflection we are satisfied that this assumption was not well founded. Defendant was It mere licensee, with a privilege of selling, but with no proprietary rights in the copy..: right, and it is clear tIrat as such licensee he would have no power to en· join an unlawful sale of the books. Drone, Copyr. 305 ; Walle Pat. § 400; Gayler v. Wilde/', 10 How. 477; Hill v. Whitcomb, 1 Holmes, 317; Sanfm'd v. Messer, 2 O. G. 470. The better opinion seems to be that the owner-of the copyright himself could not enjoin sales of the hooks lawfully purchased elsewhere, without notice of the defendant's rights. These dealers had bdught the books in the regular course of trade, in an eastern city, of a person who had the legal right to sell them, and they had brought them in good faith within defendant's territory for the purpose Of disposipg of them at retail, without knmving of defendant's exclusive right to sell them here. Having thus lawfully purchased the books in good faith, they had the right to sell them wherever they chose, and could not be restrained in the enjoyment of such right; in other words, they aranot' bound by any private agreement between the owner of the Copyright and his licensee, of which they had no knowledge. Hill v. Whitcomb, 1 Holmes, 317; Apollinaris Co. v. Saherer,27 Fed. Rep. 18; Clemens v. Estes, 22 Fed. Rep. May v. Chrlffee,2 Dill. 385; Hawley v. Mitchell, 4 Fish. Pat. 388. The case turns then upon the construction to be given to plaintiffs' grimt of the exclusive right to take orders for and sell the work in the territory above mentioned. These words clearly negative the· right ofthe plaintiffs to authorize the sale of such books by any other persons within this state, but in terms they do not go beyond that. Defendant, however" seeks to import into this contract a guaranty that no other person shall obtain copies of the same work, and sell them in COUlpetition with him. If these sales were made by the connivance or consent of plaintiffs, it would undoubtedly be a good defense to this action, but there is no evidence tending in this direction. There is no evidence even that plaintiffs knew that the books were being sold here in competition with defendant, or at a less price than defendant was authorized to sell them. It was doubtless contemplated by both parties that the book should be sold only by subscription; but in some way or other, probably through the fault of some of plaintiffs' vendees, the books got into general circulation, and defendant's market was spoiled. Had this been the fault of the plaintiffs themselves, defendant would havehad his remedy; but as they appear to have been entirely innocent in the matter, it is difficult to see how they can be held liable. They did not guarantee the defendant should have the exclusive sale of the books within his ter. ritory, or that no copy should be sold by other perSons, but mereLy. that
THE MARION W. PAGE AND THE MISSOURI.
he should have the exclusive right to sell so far as they could control it, and that he still has. The cases cited by plaintiffs' counsel prove tdo much. They not only l:lhow that defendant is powerless, but that plain- , tiffs are equally so. To enable him to set up this defense we think it should appear either that plaintiffs expressly stipulated that the defendant should encounter no competition in the sale of the work, or that they were guilty of some fault or negligence in connection with such sales. 'fhe two cases' of Sims v. Marryat, 17 Q. B. 291, and Frtulks v. Kamp, 3 Fed. Rep. 898, tend to establish the proposition that plaintiffs impliedly warranted that they had the exclusive right to sell, but they have no tendency to prove a guaranty by them that defendant should not he, interfered with. The motion for a new trial must be denied, and judgment will be entered upon the verdict. '
NOTE. Upon a rebearing before tbe circuit and district judge this caSe affirmed.
(DiBtrrict Oourt, E. D. Michigan. January 18, 1888.)
COLLISION-BETWEEN SAILER AND STEAMER WITH
Tow. A propeller, with five barges in tow, bound down Lake Huron, upon a course nearly south, met a schooner bound up the lake, with a free wind, upon an opposite course. The schooner passed the propeller upon the port hand, at a safe distance, but, instead of keeping off, as she might have done, s.udde.nly put her helm hard down, and endeavored to cut across the tow between the fourth andfifth barges. Held, that the schooner was solely inia,ult.
S. SAME. Where a schooner, sailing with a free wind, meets a propeller incumbered with a long tow, the duty of avoidi,ng a collision does not devolve wholly upon the propeller.' The schooner is also bound to look out for herself, and take such precautions as the circumstances seem to require.
In Admiralty. Libel for damages. This was a libel for collision between the barge Saginaw, then in tow of the propeller Missouri, and the schooner Marion W. Page, which occurred in Lake Huron, off Lexington, at about 7 o'clock in the morning of October 20, 1886. The libel averred, in substance, that the barge was the fourth of a tow of five vessels in tow of the propeller Missouri, and bound down the lake on a course nearly south; that the schooner Page, bound up the lake, on a parallel opposite course, with a free wind, approached as if to pass on the port side, but, ·after she had passed the Missouri, and when a short distance ahead of the Saginaw, she suddenly swung, as if under a starboard wheel, directly across the tow, and struck the Saginawupon her port bow, not far from the stern. The answer of the Missouri did not differ essentially from the libel in its statement of facts, but denied all the allegations of fault made against the pIOpeller. The answer of the schooner Marion W. Page averred that she, together