Ashworth v. Glover , 20 Utah 2d 85 ( 1967 )

HENRIOD, Justice:

Appeal from a no cause judgment, in an action where the plaintiff sued defendant in tort, not quasi-contract, for conversion of plans he had drawn. Reversed, with costs to- plaintiff A.

In 1960 A designed a drive-in restaurant for one Allen, who paid the former for his services. Allen thereafter expanded his business and built another drive-in, essentially identical in structure and design, save for plot and minor other changes,— within a radius of about 30 miles on a through highway. Allen continued to use A’s plans and his supervision of construction. On the occasion of the first unit’s construction, A delivered one set of plans to Allen, and about 14 sets to contractors and subcontractors interested in bidding on certain phases of the construction.

It is interesting to note that the specifications so delivered were titled “Information for Bidders” and that the very first paragraph thereof was entitled “General Conditions,” and stated that “The latest edition of the ‘General Conditions of the Contract for the Construction of Buildings,’ as approved by the American Institute of Architects is a part of these specifications. Copies of the General Conditions may be viewed at the office of the Architect.” It is even more significant that under Article 7 of the referred-to A. I. A. “General Conditions,” under the Title “Ownership of Drawings,” it was stated that “All drawings, specifications and. copies thereof furnished by the Architect are his property. They are not to be used on other work, and with the exception of the signed Contract set, are to be returned to him on request, at the completion of the work.” A deposit of $25 was required by A for each set thus furnished. In addition he filed a set with the city, which he was required to do before a permit for construction could issue.

One Richardson, manager of Allen’s original drive-in and for whom he had been employed for about three or four years, without any permission from and unbeknown to his employer, Allen permitted the defendant, G, to copy the plans. He admitted he was contemplating a business relationship with G, who built his drive-in only 17 miles away on the same through highway and on the same side of the highway. When G’s drive-in was completed, Richardson went to work for G as manager. G copied the plans drawn by A, whose name was clearly stamped thereon, without seeking any permission to do so either from A or Allen, and G in his' defense now claims Allen owned them by- virtue of some kind of sale to Allen. This seems to be no reason G could use the plans without permissions from A or Allen, neither of which was forthcoming.

No one in this case says the plans did not call for the construction of a unique and unusually designed building. G simply said the building did not simulate Allen’s in design, and then said that anyway A had lost his common law property right in the plans, having abandoned it by selling them to Allen and selling them to 25 other contractors who may have forfeited $25, and by filing them with the city, — thus publishing them for use by anyone else who wanted to use them. The court found the facts to be consonant with the last two contentions. It said in Finding 4 and 5 as follows :

4. That in supervising the construetion of the drive-in, plaintiffs caused to have published and distributed to various building contractors, approximately 25 copies of a complete set of the plans and specifications which could later be purchased from plaintiffs by forfeiting a $25.00 deposit; that plaintiffs did not restrict the use to be made of these plans.

5. A set was filed with the planning and zoning commission at American Fork, Utah, for the purpose of securing a building permit.

As to the question of nonsimulation, we subjoin a picture of Allen’s unit followed by a picture of G’s unit and let the reader judge 'ais to such similarity: Furthermore, it is obvious from the answers of G on direct and cross-examination, that he used plans and specifications prepared by A for Allen,' — his contention to the contrary notwithstanding, — even as to interior design and construction not discernible by patrons.

Of course similarity really is not the crux of this case, although much ado was made of it. The gravamen of this case simply is whether A sold, published or otherwise abandoned his conceded common law right in the plans, irrespective of state or federal copyright legislation. There is nothing in this record, except by way of speculation, to the effect that he abandoned any common law property right in these plans which he created by his own professional skill and expertise. A building hardly can be built according to an architect’s plans, unless the builder sees them and contractors interested in bidding see them, — else the structure never could be built. It is a well-known fact that architects necessarily have to permit their plans to be examined by bidding contractors in preparing the latters’ bids. Many times such plans are loaned to such prospective bidders without charge. That is not to say that in giving such permission to take a look at the plans, he bequeaths his common law right therein to the world, — a result that would automatically enter any such proprietary right. It appears to us that requiring a deposit of $25 to take a look-see at such plans evinces, not an intention to sell them, but an intention to have them returned to the architect to use in construction perhaps in an area far removed from the local area where competition would be no factor, and in which distant area there would be no question as to using them in an unfair competition problem. The A. I. A. conditions plus the written specifications confirm us in this conclusion. We have no doubt that under the facts of this case A required a deposit to insure the return of the plans, since if A himself used the same plans to supervise the construction of an identical drive-in next door to Allen’s, in equity he might have to respond in damages to Allen. Nowhere in this record did A concede nonownership of these plans, but contrariwise said otherwise. He admitted that if the contractors did not return them, the latter could keep them, — but not once did he admit, nor does the record reflect anything to the effect that they could use them to construct an identical structure in the area. Finding of Fact No. 4 is not borne out by any substantial evidence, other than speculation, and we think that 'on this ground alone a reversal is in order.

As to publication by filing the plans with the city (a requirement before a permit could issue), the contention that the architect gave up his common law proprietary right, and thereby published and gave it to the world, is somewhat naive. Such conclusion would be absurd and there is no law cited to establish such a contention, — albeit there is respectable authority to refute such a conclusion.¹ The latter we espouse. In passing, Finding of Fact S recites this circumstance of filing, and we assume it was recited to show an abandonment and general publication. If that were the intention, we reject it as being untenable.

It seems obvious that the furtive maneuverings of Richardson and G were some sort of peculation accomplished the hard way. The easy way, without deception, simply would have been to examine the plans required to be filed in the courthouse. Had either done so it does not say that either could have used them with impunity to build an almost identical building next to one of Allen’s or in derogation of the architect’s common law property rights therein.

As counsel for G says in its brief: “This is a cáse' of first impression in this State.” We think he- may be quite right. Our first impression is that A had property rights in his work and plans, protectible against what appears to be an invasion thereof by someone in an effort to convert to a use that which belongs to another.

Now, since we have reversed the trial court, what to do about damages? The only evidence in this respect was A’s opinion that the converted plans were worth $2,033. We take it this was admissible evidence, as did the trial court. What the trial court might determine as to this phase of the case, based on the evidence adduced at the trial, since the no cause of action judgment obviated the necessity to canvass the matter of damages, we leave to the trial court based on credibility of the testimony at the trial. This is the limit, however, of plaintiff’s claim. There was no other evidence anent damages, except defendant’s claim there were none, — a matter we have disposed of hereinabove. The claim for punitive damages to A we think is window dressing and quite untenable under the facts, where the only real claim was in conversion for the value of the item converted.

We conclude that in reversing this judgment, it should be vacated and judgment entered in consonance with this decision, including a finding by the trial court of damages, not to exceed $2,033.

CALLISTER, J., concurs. TUCKETT, J., being disqualified, does ■not participate herein.