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Vol. II.)

LAWRENCE v. Dana.

[No. 9.

in the printed to in that the matters her

copy Catharin and he he complarta work from

tions, operated to convey to the said Catharine no other beneficial interest in the said annotations and additions to the work than the right to use the same in those editions ; that in fact it was always understood and agreed by and between them that the beneficial interest in the same, except as aforesaid, belonged to the complainant, and that the copyrights were taken out and held in trust by the said Catharine in accordance with that understanding and agreement. Prior to that period the author, as the complainant alleges, had caused four several editions of the work to be published, two at Philadelphia, one at London, and one in 1848 at Leipzig, in two volumes, by F. A. Brockhaus, in the French language; that in the edition of 1848 the author inserted and published, both in the text and notes, many new matters never before published by him in the English language ; that the author died in 1848 ; that the French edition was reprinted by the said Brockhaus in 1853, and that the complainant in 1860 ascertained that the said Brockhaüs had published another edition of the work in French, without the knowledge or consent of the representatives of the author, and that he contemplated publishing further editions of the same without paying anything to those representatives for copyright; that in view of these circumstances, and at the request of the said Catharine, he commenced negotiations with the said Brockhaüs upon the subject; and he alleges that the result was, that the parties came to an agreement that the complainant should revise and translate his annotations and adapt the same for a work to be sold in Europe, making such additions thereto as should render the work as complete as possible down to the time of publication; that the representatives of the deceased author should give up all claim on the said Brockhaüs in respect to the editions published and to be published ; and that in consideration thereof the said Brockhaüs agreed to pay to the said Catharine, if the complainant so directed, the sum of six thousand francs, together with the sum of four hundred and fifty dollars, to be paid to the complainant to defray in part the expenses to be incurred in preparing the translations ; that the complainant, before the agreement was completed, stated to the said Catharine or her agent, Martha B. Wheaton, that he would do no more work on any book over which he did not possess exclusive control ; that he would only undertake the work required of him in the proposed arrangement on the condition that the entire copyright should be assigned to him; that the said Catharine, manifesting a great desire to retain the legal title to the copyrights of the book, requested him to confer with Professor Parsons in her behalf, in order that some arrangement might be made which should substantially secure to the complainant what he desired, and be at the same time acceptable to the said Catharine ; and the complainant alleges that he assented to that proposition, that he had one or more interviews with Mr. Parsons, and made an agreement with him as to the title to the copyrights and other matters, as expressed in the memorandum set forth in the bill of complaint, as follows:

MEMORANDUM. — “ Mr. Lawrence will write to Mr. Brockhaüs in terms to bring to Mrs. Wheaton the right to draw on Mr. Brockhaüs at once for 6,000 francs. He will also endeavor to get from Mr. Brockhaüs as much as he can toward the actual expense of having the translation into French made here, and so much of that expense as he fails to get from

Vol. II.]

LAWRENCE v. Dana.

[No. 9.

Brockhaus Mrs. Wheaton will pay from the proceeds of the draft on Brockhaüs. Mrs. Wheaton will, on the payment of her draft on Brockhaüs, agree formally to make no use of Mr. Lawrence's notes in a new edition without his written consent, and Mrs. Wheaton will give to Mr. Lawrence the right to make any use he wishes to of his own notes."

That the said Parsons, for the purpose of being more certain that the memorandum would be approved by the said Catharine, wrote on the same sheet of paper to the respondent, Martha B. Wheaton, that he and the complainant had come to a perfectly amicable result, as expressed generally in the memorandum, and suggested to her that she should make a copy of the same for herself, if the result was satisfactory; and the complainant also alleges that the said Martha afterward, in behalf of her mother and herself, and to signify their approval of the result, signed the said memorandum, and wrote the date, “ June 14, 1863," thereon, and caused the same to be delivered to the complainant. Additions were subsequently made to the agreement, and the terms of it were in some respects varied, as appears by the correspondence between the parties; but the complainant alleges that he is advised and believes that the amendments to the same do not vary any such parts of the same as relate to the copyrights in this country ; and he also alleges that the consideration of the agreement of the said Brockhaüs to pay said amount to the said Catharine was the promise of the complainant to furnish new and additional notes for the future editions of the work, as was well known and understood by the parties; that he, the complainant, wrote to said Brockhaüs, as agreed ; that the letter was approved by the other parties, and was by the said Martha and Catharine sent to the said Brockhaüs, and that the said Catharine, on the 17th of June, 1863, drew a bill of exchange on him for the amount specified in the memorandum ; and that the same, in consequence of said letter and of the promises and undertakings of the complainant, was duly honored and paid.

The theory of the complainant is, and he accordingly alleges, that there was not, on the first day of January, 1865, any valid subsisting copyrights of the editions published, respectively, in 1836 and 1846 ; that the copyrights of the editions published in 1855 and 1863 secured the exclusive right to the same only so far as those editions differed from the aforesaid antecedent editions ; that it was a part of the agreement made through the agency of the said Parsons, that the said Catharine should execute and deliver to the complainant a formal instrument, securing to him all his rights in the premises, of such a nature as to admit of being recorded, as required by the acts of Congress relating to copyrights; and he avers that the other respondents had full notice and knowledge of the agreement, and that he, in a court of equity, by virtue of that agreement, is taken and deemed to be the owner and proprietor of the last mentioned copyrights, in and as to all matters contributed by him as aforesaid ; and that, by reason thereof, the respondents are bound not to make any use of any such matters so contributed by him to either of the said editions of the said work. Based upon these and other allegations, as more fully set forth in the record, the claim of the complainant is, that he is in equity the exclusive owner and proprietor of the copyrights for all the matters which he contributed to those two editions ; and he charges that Vol. II.)

LAWRENCE v. Dana.

(No. 9.

the said firm of Little, Brown & Co. procured and induced the said Martha, in her own behalf and that of her mother, to consent and agree that the said publishing firm of Little, Brown & Co. should publish an edition of that work, and procure the same to be edited, and notes to be prepared for the same by some person other than the complainant; that thereupon the said firm procured and employed Richard H. Dana, Jr., one of the respondents, to edit the proposed edition, and to prepare the notes as aforesaid ; and the complainant further shows that the respondents, without his consent, have caused the proposed edition to be printed, published, and publicly sold. Reference is also made to certain alleged pretences set up by the respondents; and the complainant prays for an account and for an injunction, and that the respondents may be decreed to surrender and deliver up all copies of the book on hand, and to make and deliver to the complainant a good and sufficient deed of the copyrights of 1855 and 1863, in accordance with his equitable title.

Questions of intrinsic importance and of great difficulty are presented for decision in respect to the title of the complainant, and as they are in their nature preliminary, they will be first considered. Briefly stated, his claim of title, considered broadly, is to the additions to and emendations of the text of two editions as published under his supervision, to the memoir of the author as contained in those editions, to the annotations prepared by him and published in those editions, and to the arrangement of the same, and the mode in which they are therein combined and connected with the text, and to the indices as published in those editions. He rests his claims upon the following grounds, as substantially stated in the bill of complaint: First, upon a contract or agreement between Catharine Wheaton and himself, that she should make no use of his notes aforesaid in any new edition of the work without his written consent ; and that she would convey to him, by a formal instrument, the right to make any use he might see fit to make of his own notes. Secondly, upon the ground that, in the consideration of a court of equity, he is taken and deemed to be the owner and proprietor of the copyrights in and as to all the matters contributed by him and published in those two editions. Evidently both claims, as presented, have respect to the agreement as expressed in the memorandum of June 14, 1863, and the subsequent correspondence upon that subject, as the first is founded in covenant or contract, and the second in an equitable title to the copyright, as derived from the original arrangement and by virtue of the agreement expressed in that written paper. Confirmation of that proposition is not needed, as the language employed in the stating part of the bill of complaint is too plain for controversy ; but if it were not so every vestige of ambiguity is removed by the principal prayers of the bill of complaint, which are for an injunction and an account, and for a good and sufficient deed conveying the legal title to the copyrights.

The respondents contend that the complainant is not entitled to any relief for several reasons.

1. Because the memorandum, as they contend, is not a perfected contract, but merely a note or memorandum of the stipulations of a proposed agreement as to the true understanding and definite terms of which the parties never actually agreed, and on which their minds never in fact met

Vol. II.]

LAWRENCE v. Dana.

[No. 9.

2. Because, the parties having failed to agree as to the true understanding of the memorandum and the terms of the formal agreement which it contemplated, the complainant relinquished and abandoned the whole subject matter of the instrument, and so notified the respondents.

3. They also contend that the agreement cannot be enforced, because the same was procured by fraudulent misrepresentations and concealments of the complainant.

4. That the agreement cannot be enforced because the memorandum is without consideration.

5. Because the basis of the memorandum and the negotiations which led to it were the supposed legal copyrights held by the said Catharine ; and they insist that those copyrights are void, and consequently that the agreement is inoperative, inasmuch as the parties entered into the same through mutual mistake.

6. Because the memorandum containing the agreement does not transfer nor assign any copyright to the complainant, or provide for or contemplate any such transfer or assignment.

I. Search is made in vain for any support to the first proposition of the defence, as applied to the terms or execution of the memorandum.

Interviews took place between the complainant and Professor Parsons, and they conferred together upon the subject matter embraced in that memorandum, as suggested by the said Catharine; and the proofs show that they came to a perfectly amicable result, that the memorandum was drawn by the latter and delivered to the complainant, to be transmitted to the said Martha B. for her examination, and that she afterward, on behalf of her mother and herself, and to signify their approval, signed the memorandum and wrote the date thereon, and caused the same to be delivered to the complainant. Expressed in intelligible terms as the memorandum is, the construction and effect of the language are questions of law which cannot be controlled or influenced by the opinion of any witness, not even by that of the person employed to prepare the draft for the consideration of the parties. He may not at the time have regarded it as a contract, but they were at liberty to adopt it as such ; and if they did so, and it was duly and understandingly executed as such, their rigbts under it must be ascertained from the language employed, as applied, in view of the surrounding circumstances, to the subject matter of the negotiation.

They subsequently differed, as the correspondence shows, as to the proper terms of the formal agreement for which the memorandum provides; but it was not denied, throughout that period, that the said Catharine had agreed " to make no use of Mr. Lawrence's notes in a new edition without his written consent,” nor that she had also agreed to give him “ the right to make any use he wishes to of his own notes.” Attempt was made, it is true, to ingraft the qualification into the latter branch of the stipulation, that the complainant should not publish in the United States a new edition of the notes and other matter of his own composition, " which he had added to the said two editions of said book, until the last edition is sold;" but it is clear to a demonstration that the agreement, as expressed in the memorandum, contains no such qualification. Properly considered, it is equally clear also that there is nothing in the correspondence to sustain the theory of the respondents as presented

Vol. II.)

LAWRENCE v. Dana.

(No. 9.

of that day those considrever all quages over n

in their first proposition. “On reflection," said the complainant in his letter to Mr. Parsons, dated June 14, 1863, “ the suggestion you made yesterday offers many advantages over my proposed plan .... as it settles at once and forever all questions in regard to the book.” Influenced by those considerations, as he represents, he wrote a second letter of that date as a substitute, if preferred by the other party, for the one previously prepared to be forwarded to Mr. Brockhaus, and submitted it to the approval of Mr. Parsons, as the friend of the said Catharine ; but he expressly stated therein that, in sending it, he did not wish to recede from the former arrangement. On the contrary, he stated in the inclosed letter that, having made an arrangement with the said Catharine, which gave him the entire control over his notes as published in English, and any claim she might have to the editions published by his correspondent, he had advised her to the effect that she might draw for the whole six thousand francs. He proposed in that letter to Mr. Parsons, that the said Catharine might retain the copyright to the text, and to relinquish all claim for the expenses of the stipulated translation ; but he did not propose to vary the agreement, as expressed in the memorandum, as to his own notes, and he also made claim to the right, if any, that the said Catharine had to the text and notes of the foreign editions.

Full consultation took place between Mr. Parsons and the said Martha, as the agent of the said Catharine; and Mr. Parsons, under date of June 16, 1863, wrote to the complainant that

1. “ Mrs. Wheaton will send your last letter to Mr. Brockhaus, and returns you your former letter. 2. Mrs. Wheaton will draw at once on Mr. Brockhaüs, at twenty days, for 6,000 francs. 3. When Mrs. Wheaton learns that the bill is paid, she will execute instrumerts satisfactory to you, which shall in the first place bind her not to use your notes without your written consent, and in the next place give you all her claims and interests in respect to the whole book, text and notes, for continental Europe in future.”

Inadvertently Mr. Parsons omitted to restate the second clause of the agreement as expressed in the memorandum, that Mrs. Wheaton would give to the complainant the right to make any use he wished of his own notes; but his attention having been called to the omission by the complainant on the following day, he replied, on the 19th of the same month, that the complainant was certainly right in his construction of their arrangement, that the complainant under it could make any use he saw fit of the matter which he had contributed. Appended to that letter is a note in the nature of a postscript, dated four days later, in which the writer suggests that Mrs. Wheaton was bound by her contract with Little, Brown & Co., as the publishers of the then current edition of the work, and that she could not convey to him anything covered by her copyright in any way detrimental to that edition ; but he proposed no alterations of the agreement, and confirmed the same by his two letters, and none was made or proposed by the parties. Prior to the 31st of August, 1863, the complainant received intelligence that the bill of exchange drawn by the said Catharine had been duly honored, and on that day he wrote to Mr. Parsons, requesting him to cause the agreement of June 14, 1863, to be carried into effect. Delay ensued before any response was received to that

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