Webster v. Ellsworth

U.S. Circuit Court for the District of Eastern Michigan

Webster v. Ellsworth

36 F. 327, 1888 U.S. App. LEXIS 2624

CourtU.S. Circuit Court for the District of Eastern Michigan

DecidedFebruary 21, 1888

StatusPublished

This text of 36 F. 327 (Webster v. Ellsworth) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Eastern Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Webster v. Ellsworth, 36 F. 327, 1888 U.S. App. LEXIS 2624 (circtedmi 1888).

Pincite

Opinion

Brown, J.,

(after stating the facts as above.') Upon the trial of this case it was assumed by the court that if defendant’s territory was invaded by others, who were selling in competition with him, it might be possible for him to maintain 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 a mere licensee, with a privilege of selling, but with no proprietary rights in the copyright, and it is clear that as such licensee he -would have no power to enjoin an unlawful sale of the books. Drone, Copyr. 305; Walk. Pat. § 400; Gayler v. Wilder, 10 How. 477; Hill v. Whitcomb, 1 Holmes, 317; Sanford 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 books lawfully purchased elsewhere, without notice of the defendant’s rights. These dealers had bought 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 disposing of them at retail, without knowing 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 are not 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. Scherer, 27 Fed. Rep. 18; Clemens v. Estes, 22 Fed. Rep. 899; May v. Chaffee, 2 Dill. 385; Hawley v. Mitchell, 4 Fish. Pat. Cas. 388. The case turns then upon the construction to be given to plaintiffs’ grant of the exclusive right to take orders for and sell the work in the territory above mentioned. These words clearly negative the right of the 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 soli them in competition 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 iro 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 have-had 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 that the defendant should have the exclusive sale of the books within his territory, or that no copy should be sold by other persons, but merely that [329]*329he 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 too much. They not only show that defendant is powerless, but that plaintiffs 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. The two cases of Sims v. Marryat, 17 Q. B. 291, and Faulks 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 bo interfered with. The motion for a new trial must be denied, and judgment will be entered upon the verdict.

Note. Upon a rehearing before the circuit and district judge this case was affirmed.

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Brown, J.,

(after stating the facts as above.') Upon the trial of this case it was assumed by the court that if defendant’s territory was invaded by others, who were selling in competition with him, it might be possible for him to maintain 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 a mere licensee, with a privilege of selling, but with no proprietary rights in the copyright, and it is clear that as such licensee he -would have no power to enjoin an unlawful sale of the books. Drone, Copyr. 305; Walk. Pat. § 400; Gayler v. Wilder, 10 How. 477; Hill v. Whitcomb, 1 Holmes, 317; Sanford 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 books lawfully purchased elsewhere, without notice of the defendant’s rights. These dealers had bought 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 disposing of them at retail, without knowing 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 are not 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. Scherer, 27 Fed. Rep. 18; Clemens v. Estes, 22 Fed. Rep. 899; May v. Chaffee, 2 Dill. 385; Hawley v. Mitchell, 4 Fish. Pat. Cas. 388. The case turns then upon the construction to be given to plaintiffs’ grant of the exclusive right to take orders for and sell the work in the territory above mentioned. These words clearly negative the right of the 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 soli them in competition 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 iro 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 have-had 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 that the defendant should have the exclusive sale of the books within his territory, or that no copy should be sold by other persons, but merely that [329]*329he 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 too much. They not only show that defendant is powerless, but that plaintiffs 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. The two cases of Sims v. Marryat, 17 Q. B. 291, and Faulks 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 bo interfered with. The motion for a new trial must be denied, and judgment will be entered upon the verdict.

Note. Upon a rehearing before the circuit and district judge this case was affirmed.

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Bluebook (online)

36 F. 327, 1888 U.S. App. LEXIS 2624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-ellsworth-circtedmi-1888.

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