Levyeau v. Clements , 175 Mass. 376 ( 1900 )

Barker, J.

Upon the facts stated in the report there should have been judgment for the defendant.

The contract for making the dies and the contract for manufacturing five thousand folders by printing impressions from the dies were separate. The fact that the dies never had been in the actual possession of the defendant is immaterial to the present question. They were representations of the defendant’s own monuments, made from drawings or photographs furnished by himself. The plaintiff had no right to use the dies, to have impressions of them printed for his own use, and his use of them in having eighty extra copies of the folder struck off for himself, for the purpose of advertising his own business of making dies, was a breach of trust toward the defendant, which would have entitled the latter to have, at least if the matter were of sufficient consequence, an injunction to restrain the plaintiff from using the folders thus wrongfully obtained, and to a decree ordering them to be destroyed. Morison v. Moat, 9 Hare, 241. Prince Albert v. Strange, 2 DeG. & Sm. 652; 1 MacN. & G. 25. Tuck v. Priester, 19 Q. B. D. 629. Pollard v. Photographic Co. 40 Ch. D. 345.

Assuming, without so deciding, that title to eighty of the folders as between the printer and the plaintiff passed to the plaintiff before or at the time when the five thousand and eighty folders were delivered to the defendant, he still cannot recover in this action, because by his own fraudulent act in procuring them to be made for his own use, in breach of the trust reposed in him by the defendant to make no such use of the dies, the plaintiff has caused the eighty folders to be so mixed and confused with the defendant’s goods that they cannot be distinguished, and the plaintiff cannot require the defendant to separate the eighty folders from his own, or to pay the plaintiff for their value. They were not ear-marked and there was no way to distinguish them, and the confusion of them with the other five thousand was due to the plaintiff’s attempt to defraud the defendant. Ryder v. Hathaway, 21 Pick. 298, 304. See Willard v. Rice, 11 Met. 493; Smith v. Sanborn, 6 Gray, 134; Stearns v. Herrick, 132 Mass. 114; Moors v. Reading, 167 Mass. 322, 326.

Judgment to be entered for the defendant, notwithstanding the verdict„