Statement of the Case.

from the retail price, upon condition, however, that if Thompson would subsequently, upon his promised visit to Philadelphia, put himself upon the covenants of said contract, and show a willingness to perform them, Hubbard would abate the price at which the books were charged; that Thompson assented to such a course of dealing; that it was not true that the correspondence between the parties had reference to the contract of sale of the Manning books, plates, cuts, stamps, and copyright; that such contract of sale was not at any time spoken of as annulled, withdrawn, or rescinded, and no words were used in reference thereto which could be considered by Thompson to be a rescission, or an implied rescission, or an intended rescission of the contract; that Thompson and Hubbard at all times considered the sale of the Manning book, including plates, cuts, copyright, etc., and the payment therefor, as complete, when the promissory notes were forwarded to Thompson by Hubbard; and that such sale was treated as conclusive, complete, and absolute, by Thompson and Hubbard, until after Thompson had published the Periam and Baker book, and it was only then that Thompson began to dispute the title of Hubbard in the Manning book and the copyright thereof.

A replication was filed to the answer to the cross-bill, proofs were taken on both sides, and it was stipulated between the parties that all proof taken in either suit might be used in both.

The case was brought to a hearing before Judge Treat, the district judge, and on the 8th of July, 1885, he made a decision, holding, that if the copyright of the Manning book had been transferred to Hubbard, the Periam and Baker book was an infringement of it, but ordering a re-argument before the circuit judge (Judge Brewer) and himself, on three questions: (1) Whether Thompson assigned the copyright of the Manning book to Hubbard, so that Hubbard could pursue him for an infringement; (2) whether, if such assignment was made, it was rescinded; (3) whether, inasmuch as the imprint of Hubbard's publication did not conform to the terms of the statute, he could maintain an action against Thompson for an infringe

Statement of the Case.

ment, although Thompson knew that the copyright had been granted.

The case was heard before the two judges, and was decided in an opinion given by Judge Brewer, and reported in 25 Fed. Rep. 188. The view of the court was, that the testimony left the matter much in doubt, whether the paper signed on March 30, 1880, was understood by the parties to be a definite and closed contract, "or a mere preliminary statement—a memorandum of matters upon which they had agreed, and which, with all unsettled details, were thereafter to be put into the form of a complete contract in writing and then signed and executed." The conclusion of both judges was stated to be, that there was not in the testimony that which enabled the court to say that the parties, in respect to all the items of the proposed agreement between them, ever came to a definite understanding; that there were still some matters unsettled and undetermined, so that a contract, as it was a single contract and understood to be a single contract, could not be said to have been finally and definitely consummated; that the cross-bill ought to be sustained so far as concerned the tender - that is, the plates ought to be returned to Thompson upon the payment by him to Hubbard of the $4000 and interest, but that, so far as any claim by Thompson for an accounting and damages was concerned, the course of dealing between the parties had been such that equitably Thompson was not entitled to any such accounting.

On the 27th of October, 1885, a decree was made, entitled in both suits, adjudging that no assignment or sale of the copyright of the Manning book, or of the electrotype plates, originals of illustrations, and stamps for binding, was ever made by Thompson to Hubbard, by virtue of the instruments of writing and acts mentioned and described in the original bill, and that Hubbard neither acquired nor had any title to or ownership in the copyright of said book under said instruments and acts, or any of them, and dismissing the original bill; and it was decreed under the cross-bill, that Thompson was and always had been the owner of the copyright, electrotype plates, originals of illustrations, and stamps for binding,

Citations for Appellee.

of the Manning book, and that Hubbard, on the tender to him of $4000 with interest from May 15, 1880, to the date of the tender, should, on demand, surrender and deliver back to Thompson the electrotype plates, originals of illustrations, and stamps for binding, pertaining to said book and received by him from Thompson; that, if such tender should not be accepted, then said sum and interest should be paid into the registry of the court, to abide its further order; that Thompson was not equitably entitled to an accounting and damages; and that each party should pay his own costs. From this decree each party appealed to this court.

Mr. J. B. Henderson, for Thompson, cited: (1) As to the character and rescission of the contract: Bruce v. Pearson, 3 Johns. 534; Innis v. Roane, 4 Call, (Va.) 379; Hazard v. New England Ins. Co., 1 Sumner, 218; Dodge v. Hopkins, 14 Wisconsin, 630; Green v. Wells, 2 California, 584; Babcock v. Huntington, 9 Alabama, 869; Jennings v. Gage, 13 Illinois, 610; S. C. 56 Am. Dec. 476; Tisdale v. Buckmore, 33 Maine, 461; Cocke v. Rucks, 34 Mississippi, 105; Evans v. Gale, 17 N. H. 573; S. C. 43 Am. Dec. 614; Harris v. Bradley, 9 Indiana, 166; Smethurst v. Woolston, 5 W. & S. 106; Lucy v. Bundy, 9 N. H. 298; Allen v. Webb, 24 N. H. 278; Preble v. Bottom, 27 Vermont, 249; Wright v. Haskell, 45 Maine, 489; Young v. Wakefield, 121 Mass. 91; Steam Packet Co. v. Sickles, 10 How. 419; Bank of Columbia v. Hagner, 1 Pet. 455. (2) As to the notice of the copyright by Thompson: Burrow-Giles Lithographic Company. v. Sarony, 111 U. S. 53; Jollie v. Jaques, 1 Blatchford, 618; Baker v. Taylor, 2 Blatchford, 82; Parkinson v. Laselle, 3 Sawyer, 330; Boucicault v. Hart, 13 Blatchford, 47; Ewer v. Coxe, 4 Wash. C. C. 487; Rubber Company v. Goodyear, 9 Wall. 788; Wheaton v. Peters, 8 Pet. 59; Callaghan v. Myers, 128 U. S. 617, 652; Merrell v. Tice, 104 U. S. 557; Struve v. Schwedler, 4 Blatchford, 23; Banks v. Manchester, 128 U. S. 244.

Mr. J. R. Sypher, Mr. S. M. Breckinridge and Mr. John G. Johnson, for Hubbard, cited. (1) As to the contract: Laver

Opinion of the Court.

v. Dennett, 109 U. S. 90; Hartshorn v. Day, 19 How. 211; Nash v. Towne, 5 Wall. 689; Slater v. Emerson, 19 How. 224; Brawley v. United States, 96 U. S. 168; Chicago v. Sheldon, 9 Wall. 50; Farmers' Bank v. Groves, 12 How. 5; Warren v. Leland, 2 Barb. 613; Mallory v. Mackaye, 12 Fed. Rep. 328; Pulte v. Derby, 5 McLean, 328; Smoot's Case, 15 Wall. 36; Preston v. Luck, 27 Ch. D. 497; Kennedy v. Lee, 3 Meriv. 440; Darlington Iron Co. v. Foote, 16 Fed. Rep. 646; Bean v. Clark, 30 Fed. Rep. 225; Wheeler v. New Brunswick Railroad Co., 115 U. S. 29. (2) As to the copyright: Wheaton v. Peters, 8 Pet. 591; Parkinson v. Laselle, 3 Sawyer, 330; Baker v. Taylor, 2 Blatchford, 82; Myers v. Callaghan, 5 Fed. Rep. 726; Story's Executors v. Holcombe, 4 McLean, 306; Chappelle v. Davidson, 2 Kay & Johns. 123; Bogue v. Houlston, 5 DeG. &. S. 267; Alexander v. McKenzie, 9 Scotch Sess. Cas. 2d Series, 758; Emerson v. Davies, 3 Story, 768.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

We are unable to concur in the conclusion of the Circuit Court on the question of the sale by Thompson to Hubbard of the copyright of the Manning book.

The price of the book and its copyright, including originals of cuts, circulars, plates and book stamps, having been fixed by agreement at $4000, the disputed point in the negotiations of March 30, 1880, was as to the extent of territory to be allowed to Thompson for the sale of the Manning book, he insisting upon being allowed more territory than was specified in the draft agreements produced by Hubbard. The two drafts, one of which was retained by each party, differ practically only as to the amount of territory in which Thompson was to be allowed to sell the Manning book. The two instruments agree as to the territory in which Thompson was to have an exclusive right to sell the other publications of Hubbard.

The two parties differ in their testimony as to what was

Opinion of the Court.

agreed upon in regard to the clause which is substantially the same in both of the instruments, namely: "The field on stock book to be the same as on H. Bros.' books except the six counties in Missouri adjacent to Kansas City," Hubbard testifying that his copy represented exactly what had been settled. upon, and that the concluding paragraph was added to make everything certain, while Thompson testifies that he supposed the concluding sentence was added to express the understanding about the plates being collateral security for the notes which were to be given, although the special provision about the collateral security was inserted in the paper retained by him, as well as in that which he signed.

The two papers agree in providing for the sale to Hubbard of the plates of the Manning book, including copyright, the originals of cuts, the stamps for binding, and the plates for circulars, for $4000, the same to be delivered, well boxed, at the depot in St. Louis, free of charge for boxing or drayage, as soon as the first edition, then printing, should be off the press. They also agree in stating that Thompson should pay for all books which should be manufactured from the plates upon his order, with his exclusive imprint and copyright mark, if ordered in lots of not less than 500 at a time, payable in cash in 60 days, the price to be 10 per cent in advance of the cost to Hubbard Bros. of their manufacture, and also the further cost of boxing and drayage.

The two papers also agree in providing that, for the period of two years, Thompson would publish no books except those he then had in course of publication, namely, Texas History, Almanac and the Tice Almanac, and would devote his energies largely for that period to the vigorous prosecution of the sale of the publications (books and bibles) of Hubbard Bros., and theirs exclusively, (including bibles,) aside from his own, as named, paying for the same within sixty days of date of bills, at the rate of 65 per cent off from the retail prices, and for all circulars, prospectus books, posters, etc., at cost.

The two papers also agree in the time and manner of payment, in cash and in notes, for the plates and copyright.

The two papers also agree in providing that Hubbard Bros.