Page:Federal Cases, Volume 15.djvu/30

 LAWRENCE (Case No. 8,136) [15 Fed. Gas. page 26] The question is correctly stated by the learned counsel for the complainant to be whether the defendants have used the plan, aiTangements, and illustrations of the com- plainant as the model of their own book with colox-able alterations and variations only to disguise the use thereof, or whether the work is the result of their own labor, skill, and use of common materials and common sources of knowledge, and the resemblances are either accidental or arising from the na- ture of the subject Curt Copyr. 258, 2C0. Although many of the same names, resi- dences, and amounts appear in the defend- ants' as in the complainant's tables, the an- swer positively denies that they were copied, and the uncontradicted proof is that they were derived from independent sources of in- formation. One of the defendants testifies that the names of debtors are on bills placed in defendants' hands for collection, and that a great many of the subscribers (creditors) are persons they were doing business with pre- vious to complainant's publication, and that they were obtained through their canvass- ing clerk. The list of names marked as identical in the two publications are testi- fied to have been in possession of defend- ants previous to the publication of complain- ant's "chart" or of defendants' "guide." There is no evidence, therefore, of any in- fringement of any rights secured by his copyright to the complainant. Bill dismiss- ed, with costs. Case No, 8,136. LAWRENCE v. DANA et al. [4 Cliff. 1; 1 2 Am. Law T. Rep. (N. S.) 402; 7 0. G. 81.] Circuit Court, D. Slassachusetts. Sept. 20, 1869. CoPYHiGHT — Memorandum of Agreement — Con- tract — Fraud — Proprietors sot Authors — Editor of Work — Notes — Subsequent Edi- tion — Expert Evidence op Identity — Coinci- DEXOB of Errors — Literary Labor. . If parties make a memorandum of an agree- ment, not at that time regarded as a contract, but afterwards adopt the memorandum as a contract, and understandingly execute it as such, their rights under it must be ascertained from the language employed, as applied, in view of the surrounding circumstances, to the subject-matter of the negotiation. . The stipulations contained in the memoran- dum in this case were held to constitute a per- fected agreement, and not a mere proposal. . Mere proposals may in general be withdrawn before they are accepted; and ordinary con- tracts, executojy on both sides, may in certain cases be regarded as forfeited where the recipro- cal stipulations are dependent, and where the par- ty seeking to enforce performance has omitted to do something required to be performed by him as a condition precedent to his right of action. . A party may be estopped from setting up a particular contract, where he has agreed, in due form of law, for a valuable consideration to re- linquish its benefits or not to enforce its pro- visions; or where h3 has designedly caused the [Reported by William Henry Clifford, Esq., and here reprinted by permission.] other party to believe that the contract has been discharged, or would not he enforced, and thus induced such other party to act on that belief to his pecuniary prejudice. . Contracts executed on one side and unper- formed on the other are under the operation of a very different principle from those where nothing has been done by either, so far as they relate to the party who has fulfilled his obligation. Rights and obligations secured or imposed under such circumstances have become vested and absolute, . If the delinquent party seeks to avoid the obligation imposed on him, he must allege and prove a new contract, amounting to a release; or, that the other party is estopped to enforce the ob- ligation by virtue of &ome operative agreement to relinquish the benefits of the same; or, he must allege and prove that he hat been designedly mis- led by the admissions and representations of the other party. . None of the elements of estoppel exist in this branch of this case, because the complainant did not agree that he would discharge the memoran- dum. . A certain memorandum had been drawn and agreed to. After this the complainant stated in writing, "On reflection, I have determined to de- cline accepting any paper whatever from Jlrs. W, and therefore return the enclosed," — meaning an amended draft for the formal agree- ment. Held, this should be construed in view of what had preceded it in the negotiations, and of the subject-matter to which it related; that the statement was not inconsistent with the memor- andum or a relinquishment of it. . Expressions of a doubtful character are not sufficient to support a defence to a contract exe- cuted on the part of the complainant. . Estoppels are allowed to shut out the truth only when it is necessary to protect a party set- ting up such a defence asiainst an injury to which he is exposed without his own fault, in conse- quence of having trusted to the representations- designedly made by the other party in order to expose him to such injury, which representations were of such character that a man of ordinary prudence would take them as true, and believe that he should act upon them as exhibiting the true state of the case. . These representations must be proved, and they will not by implication be extended beyond their plain import. . Although abundant evidence existed to show that the defendant was willing to concede the complainant's claim to a certain part of the matter in dispute, still, as the complainant elected to stand on the original memorandum of agree- ment, and such part was not included therein, it was held he had relinquished such part . When fraud is set up as a defence to a con- tract, the burden is on the party setting it up^ and it must he satisfactorily proved. . Inferences sought to be drawn from cor- respondence of parties are not sufiicient to sub- stantiate the defence of fraud in the making of a contract otherwise legal and binding. . Under the copyright act now in force, copy- right may be granted to the author of any book within the classes described in section 1, if the author is a citizen of The United States. . Executors, administrators, and legal as- signs of the author are also included within the- purview of that section. . Where the author is the owner, he is en- titled to the copyright; but if he has parted with the ownership, the requirement of the law is that the clerk of the district court shall give a copy of the title, under seal, to the proprietor. . Proprietors of such books, though not au- thors, are entitled to the benefits of the act under a provision of section 4. fCited in Carte v. Evans, 27 Fed. 8G3.]