Citation Numbers: 25 F. 293
Judges: Blodgett
Filed Date: 10/19/1885
Status: Precedential
Modified Date: 9/9/2022
The bill in this case charges that the complainants are owners of copyright of a work entitled “Gunn’s New Family Physician and Home Book of Health,” the copyright of which was secured in the name of John C. Gunn and the firm of Moore, Wilstach, Keyes & Co., and by an agreement between John C. Gunn and this firm the latter and their assigns have the exclusive right to manufacture and print said work, together with the exclusive right to vend said work in all the states north of the Ohio river, and north of the parallel of 36 degrees 30 minutes north latitude, the north boundary line between the states of Pennsylvania and Maryland, commonly known as “Mason and Dixon’s lino;” that complainants have become possessed of all the rights of the firm of Moore, Wilstach, Keyes & Go. in said copyright and in said contract, and that the defendants, in violation of the rights of complainants, have printed, published, exposed for sale, and sold a work in one volume entitled “Gunn’s Newest Family Physician and Home Book of Health, by John G. Gunn, M. D.,” know-that the same is a copy from, and an infringement and piracy of, the said “Gunn’s New Family Physician and Home Book of Health,” secured by said copyright. The defendants in their answer admit the original copyright in the name of John 0 Gunn and Moore, Wilstach, Keyes & Co., but insist that the book they are publishing is no violation of said copyright, and deny that complainants by said copyright are entitled to interfere with the book printed, published, and sold by defendants, and further insist that the contract between Dr. Gunn and Moore, Wilstach, Keyes & Co., for a division of territory, and giving said firm the exclusive right to manufacture said books, and the exclusive right of sale in the states and territories north of Mason and Dixon’s line, has been abrogated by the refusal of the successors of said firm to manufacture said books at a reasonable rato for tho use of the owners of the Gunn interest.
The facts in the case as shown by the testimony aro briefly these: In the latter part of the year 1857, Dr. John G. Gunn, then a resident of Cincinnati, Ohio, being the author of a work entitled “Gunn’s New7 Domestic Physician or Home Book of Health: A guide for families, pointing out in familiar language, free from medical terms, the
Moore, Wilstach, Keyes & Co. paid to Gunn $2,000 for their interest in the copyright of said book; and very soon after the contract was made a large edition of the book was published, which the parties commenced to sell in their respective territories. In 1864 a new edition of said book was prepared by Dr. Gunn, and copyrighted by the parties in the same manner as the first edition, and the parties proceeded to sell and dispose of the same in the same manner and upon the same terms provided for in the contract of January, 1857. After the issue of the edition of 1864 the interest of Dr. Gunn in Baid copyright and contract was acquired by W. H. Moore, one of the ■defendants herein, and who was also the Moore of the firm of Moore, Wilstach, Keyes & Co., and Mr. Moore, by due assignment, has transferred the interest so acquired from Dr. Gunn to his wife, Anna J. Moore, one of the defendants herein. The firm of Moore, Wil
By the original contract between Gunn and the firm the latter was clothed with the exclusive right of printing and manufacturing the books, and was obliged to furnish Dr. Gunn at cost with such copies as lie might need for supplying the territory allotted to him; and it is now claimed that inasmuch as difficulties arose between Moore and the present complainants as to what was the fair cost of the books under the terms of the contract, and as the complainants refused to furnish hooks at what Mrs. Moore and her agents held to bo a fair price, that refusal annulled the entire contract, and allowed each party to print and publish, or to vend, within the entire territory. It seems to me, without further discussion of the questions involved in this case, that this is not strictly a copyright case, but the rights of these parties are fixed by the terms of the contract, and a violation, .even by the firm of Moore, Wilstaeh, Keyes & Co., or their successors, of the clause giving them the exclusive right to print and manufacture the book, did not abrogate the terms of the contract in any respect in regard to the division of the territory, as the covenants of the contract were wholly independent; but, on the contrary, if the Moores, or the parties owning the Gunn interest, saw fit to manufacture their own books instead of having them manufactured by the firm, and the firm acquiesced in their so doing, the Moores, or those representing the interest of Dr. Gunn, had no right to invade the territory allotted to the firm, and sell within that territory either the original edition, or any new edition which they might manufacture