Page:Ripley v. Findlay Galleries.pdf/5

 supposedly on another basis this extinguished the obligation to plaintiff.

There being no substantial dispute in the evidence, we are constrained to hold that the lower court has placed an erroneous interpretation on the two letters in question. Holding as we do that the entire matter turns upon the authority to the agent and that the letters constitute complete authority to Findlay for the sale without reservation, it follows that if plaintiff had any common law copyright it passed under the sale and the subsequent application for a statutory copyright was made by plaintiff under a misconception of his rights and is invalid. 17 U.S.C.A. § 1 et seq. Under the circumstances, we think plaintiff’s complaint is without merit. No affirmative relief is deemed necessary under the cross complaint. The judgment of the lower court is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

Appeal from the District Court of the United States for the Northern District of Illinois, Western Division; Elwyn R. Shaw, Judge.

Action by Theodore Friedman against the Washburn Company to have defendant declared a trustee ex maleficio of a certain patent and for other relief. From a judgment of dismissal on the merits, plaintiff appeals.

Affirmed as modified.

Maxwell E. Sparrow, of New York City, and Harold R. Nettles, of Freeport, Ill., for appellant.

Andrew F. Wintercorn, of Rockford, Ill., and Irvin H. Fathchild, of Chicago, Ill., for appellee.

Before SPARKS, KERNER and MINTON, Circuit Judges.

SPARKS, Circuit Judge.

This cause is presented to us for a second time, this appeal being from a judgment on the merits of the cause, dismissing the complaint, and directing the fullest allowance of costs permissible.

This court had earlier reversed a judgment of the District Court dismissing appellant’s complaint on defendant’s motion