A complete title to the copyright passed when plates were delivered and notes were ac-ern District of Missouri. On the 28th of Nocepted.

[126]

[127]

"ST. LOUIS, May 3d, 1880.
"Messrs. Hubbard Bros. Philadelphia, Pa,, bought
of N. D. Thompson & Co.

with Hubbard Bros., a firm composed of Hub-, lege of selling the book by subscription, and
bard and one Ayer, carrying on business in Phil- for that purpose of employing others to assist
adelphia, a copy of which instrument, marked him; that Hubbard Bros. added to the book,
Exhibit A, was annexed to the bill and is set and enlarged and improved it, and caused to
forth in the margin,' and which was duly record-be printed and bound a large number of copies,
ed in the office of the Librarian of Congress; that each copy having printed therein a notice of
thereafter, and on May 28, 1880, Thompson ren- copyright, and expended large sums of money
dered to Hubbard Bros. a further instrument in doing so and in advertising the book in
in writing, in the form of a bill of sale for the newspapers and by means of circulars and
book, a copy of which was annexed to the bill prospectuses; that, in June, 1881, Hubbard be-
and marked B, and was duly recorded in the came, by purchase from Ayer, the sole propri
office of the Librarian of Congress, and was as etor of the book and the copyright of it; that
follows:
Thompson, in 1881 and 1882, with full knowl
edge of the premises, compiled, printed, pub
lished, and sold, and was continuing to sell and
offer for sale, a book entitled "The American
Farmers' Pictorial Cyclopedia of Live Stock,
$4,000 00 Embracing Horses, Cattle, Swine, Sheep and
Poultry, including departments on Dogs and
Bees; being also a complete Stock Doctor;
combining the effective method of object-
teaching with written instruction. Giving all
the facts concerning the various breeds; char-
acteristics and excellencies of each; best meth-
ods of breeding, training, sheltering, stable
management and general care; with specific
directions how to buy and how to sell, includ-
ing careful and illustrated analysis of the points
of domestic animals, with all the diseases to [128]
which they are subject, how to know them, the
causes, prevention and cure, given in plain,
simple language, free from technicalities, but
scientifically correct, and prescribing remedies
readily obtained and easily applied. Designed

"To complete set electrot. plates, stock
book, copyright, originals of illustra-
tions, and stamps for binding same.
"Credit by amount deducted from bills in
April...

500 00

$3,500 00" that Hubbard Bros. paid Thompson in full for said book, plates, copyright, illustrations, and stamps, the consideration mentioned in said bill of sale, and thereby became the sole owners of said book and of the copyright therein, and thereupon employed many persons in the United States and Canada to sell the book by subscription, giving to them the exclusive right to sell the book within the geographical limits assigned to them respectively, and employed Thompson, among others, as one of their agents to sell the book in a large and valuable territory, within which he had the exclusive privi

Manning's Stock Doctor, &c., as before described,
paying for same $500 offset present ac., $1,000 by
note at 8 mos.; $1,000 note at 12 mos.; $1,000 by note at
18 mos.; $500 by note at 24 mos. Notes bearing in-
terest at 6 per cent per annum. They further agree
to supply N. D. Thompson all he may order of books
from said plates in 500 lots, with his exclusive im-
print and copyright mark, at 10 per cent advance
on actual cost of manufacture, also cost of boxing
and drayage, on 60 days by N. D. Thompson.

N. D. Thompson agrees to sell and does hereby
sell, to H. Bros. the entire plates (not less than one
thousand pages) of a new book entitled Manning's
Illustrated Stock Doctor and Live Stock Encyclo-
pedia, for the sum of $4,000, including copyright,
the originals of the illustrations, all the stamps for
binding the book, and circular plates, and deliver
same as soon as first edition now printing is off
press, shipping same to Philadelphia, and delivering
same well boxed to the depot in St. Louis, free of They further agree to supply N. D. Thompson
charge for boxing or drayage. He agrees further their other books and bibles made for sale through
to pay for all books manufactured from said plates, and supplied to their branches, at a discount of 65
upon his order, with his exclusive imprint and per cent from the retail prices of the same, grant-
copyright, cash within sixty days, and to order noting him the exclusive right of sale of close books in
less than five hundred at a time, and to order in
time to admit of their being bound after receipt, by
Hubbard Bros., of the order.

He agrees to pay for all books he orders made
from said plates, a net price which shall be ten per
cent in advance of cost to H. Bros., of their manu-
facture, and also the further cost of boxing and
drayage.

He further agrees to confine his sales to the fol-
lowing territory: the States of Mo., Ark., Indian
Territory, La., Texas, Miss., So. Ill., Kentucky and
Tenn. west of Tennessee River.

He further agrees, for the period of two years, to
publish no books except those he now has in course
of publication, viz.: Texas History, Almanac and
the Tice Almanac, and to devote his energies large-
ly for the above period to the vigorous prosecution
of the sale of the publications (Books and Bibles) of
Hubbard Bros., and theirs exclusively, including
bibles, aside from his own as named, paying for the
same within sixty days of date of bills at the rate
of 65 per cent off from retail prices, and for all cirs.,
pros. books, posters, &c., at cost.

In consideration of the fulfillment of foregoing covenants and agreements, Hubbard Bros. agree to purchase and do hereby purchase the plates of

Mo. (excepting six counties adjacent to Kansas
City), Ark., Texas, La., that part of Ky. and Tenn.
lying west of the Tennessee River and So. Ill.

It is mutually agreed that each party to this con-
tract shall be responsible to the other in the amt. of
$1.00 per copy for each copy of exclusive or close
books sold in the other's territory by the general
agents or canvassing agents of the opposite party,
and further, that all applications for agency of
close or exclusive books outside the field of either
shall be referred to the party haying exclusive
right of sale, and a charge of 50c. made for each ap-
plication so referred. It is further agreed that,
should N. D. Thompson go out of business, or for
any reason cease to prosecute the sale of Manning's
Stock Doctor, &c., then the right of sale in his ex-
clusive field shall revert to Hubbard Bros., unless
his successor shall prosecute the sale in like manner
as he would have done; the field on stock book to
be the same as on H. Bros' books, except the six
counties in Missouri adjacent to Kansas City,

HUBBARD BROS.
N. D. THOMPSON.
Plates to be made collateral security for payment
of notes.

H. BROS.

[129]

The bill prays for an injunction, both preliminary and perpetual, to restrain Thompson from printing, publishing and selling or of fering for sale, any copies of the Periam and and Baker book, and for an account of those published and sold, and for the payment of the damages suffered by Hubbard, and for general relief.

An application for a preliminary injunction was denied by the court, but it required Thompson to give a bond in $5,000, to answer any damages that might be adjudged against him, and to keep an account of the books in queswhich he had sold or should sell.

128-131
the successful and profitable use of the to him in St. Louis for a less price than $1.10
American Farmer and Stock Owner. By Hon. per copy, and that the book so to be manufact
Jonathan Periam, editor 'American Enclycoured for and delivered to Thompson should in
pedia of Agriculture;' editor Prairie Farmer;' each copy contain the name of "N. D. Thomp
former editor Western Rural;' Member Illinois son & Co., publishers, St. Louis, Missouri,"
Department of Agriculture; first Superinten exclusive of the name of any other publisher,
dent of Agricultural Illinois Industrial Univer- and should contain on the proper page the ex-
sity; Life Member American Pomological So-clusive copyright notice of N. D. Thompson &
ciety; author History Farmers' Movement'; Co., in accordance with the Act of Congress;
'Lessons for Life,' etc., etc.; and A. H. Baker, that Thompson would order delivery of the
V. S., Veterinary Editor 'American Field:' books in lots of 500 copies, Hubbard Bros. to
Veterinary Surgeon Illinois Humane Society; have a reasonable time after the receipt of the
Medalist of the Montreal Veterinary College; order in which to have the books bound; that
Member of the Montreal Veterinary Medical the books should be furnished to Thompson at a
Association, etc., etc. With over 700 appro- net price of 10 per cent in advance of the act-
priate engravings. Saint Louis, Mo.: N. D. ual cost of manufacture, including boxing
Thompson & Co., Publishers, 520, 522 and 524 and drayage, and that Thompson should have
Pine Street. 1882;" and that such book was the exclusive right to sell the book within the
an infringement on the Manning book, its ma- bounds of the following territory, namely: the
terials being copied in great part therefrom, States of Missouri, Arkansas, Indian Territory,
the combination and arrangement of them in Louisiana, Texas, Mississippi, and that portion
the two books being similar in all material re- of Iowa bounded on the north by the third tier
spects.
of counties from the Missouri line, and that
part of Illinois, not including, but south of,
Rock Island and Will Counties, constituting
about three fourths of the State of Illinois, and
also in that portion of Kentucky and Tennes-
see bounded on the east by the Louisville and
Nashville and the Nashville and Chattanooga
Railroads, and also a portion of the State of
Indiana; that Thompson, having agents and
canvassers engaged in selling the book on sub-
scription for future delivery, in Iowa, Wiscon
sin, Michigan, Illinois, and Ohio, at places
and covering territory not included in that be-
fore mentioned, should continue to sell the
book by such agents and canvassers then in
his employ, in such territory then occupied by
them; that Hubbard Bros. also agreed with
Thompson that they would sell and furnish to
him all other books and publications manufact
ured or issued for sale by them, through their
house or branch offices, at a discount of 65 per
cent off from the retail price of the same,
and that he should have the exclusive right to
sell said books and publications of Hubbard
Bros. in Missouri (excepting the six counties
adjacent to Kansas City), and also in Arkansas,
Texas, Louisiana, that part of Kentucky and
Tennessee lying west of the Tennessee River,
and the southern half of Illinois; that Hubbard
Bros. would supply to him all circulars, pros-
pectus books, and posters necessary and usual
in prosecuting the sale of said books, at the
cost price thereof, payment to be made for the
same, and for said publication of Hubbard
Bros., by Thompson, within sixty days from
the date of sale; that a contract and agreement
should be written in proper form, and executed
by Thompson and Hubbard Bros., in accord-
ance with and on the considerations aforesaid,
and that in such contract Thompson would
agree, for two years from its execution, to pub-
lish no books other than such as he then had in
course of publication, and devote his attention
largely to the sale of such publications of Hub-
bard Bros., to be so purchased from them, and
to push the sale thereof exclusively, except as
to publications of Thompson; that each party to
the contract so to be entered into would pay
to the other $1 per copy for each copy of the
Manning book sold by either in any of the ter-
ritory to be so reserved and exclusively set

On the 5th of February, 1883, Thompson filed an answer to the bill, in which he admits that he was the owner of the manuscript of the Manning book, and obtained the copyright therefor. It alleges that said Exhibit A was not recorded in the office of the Librarian of Congress until August 23, 1882; that, before March 30, 1880, Hubbard Bros., composed of Hubbard and Ayer, entered into negotiations with Thompson to purchase from him the Manning book, including the copyright thereof, which was thereafter to be obtained, the originals of cuts, stamps for binding, and plates for circulars; that on the 30th of March, 1880, Thompson met Hubbard at the Union Depot in St. Louis, and there and on the railroad train while passing, on that day, from St. Louis to East St. Louis, Thompson verbally agreed with Hubbard for Hubbard Bros., on the basis for the future sale of said book, copyright, originals of cuts, plates, and stamps; that such agreement for the sale, thereafter to be made, was on the terms that Thompson would sell to Hubbard Bros. the plates necessary for printing the books, including the copyright, originals of cuts, and stamps for binding, Thompson to have the right first to publish an edition of 2,000 copies of the book, and then to deliver the plates, cuts, and stamps, properly packed for shipping, at the Union Depot in St. Louis, and, in consideration thereof, Hubbard Bros. were to pay to Thompson $4,000, and also to manufacture said book for him and deliver the same to him in St. Louis, at a less cost than that for which he was then manufacturing the book, agreeing to manufacture and deliver it

[130]

31]

[132]

123-151

SUPREME COURT OF THE UNITED STATES.

apart for the other; that all applications for | set apart to Thompson; that Hubbard thereup-
agencies for the sale of any of the said books, on declared that there was no agreement or con-
coming to one of the parties from territory re-tract in existence between Hubbard Bros. and
served exclusively for the other, should be by Thompson, and Thompson assented there-
such party referred to the other; that the party to; that thereby said agreement for said con-
to whom such application should be referred tract, and the terms of said contract, were by
would pay to the other 50 cents for every such mutual consent rescinded; and that Hubbard
application; that, if Thompson should go out of Bros. did not, in each or any copy of the book,
business or cease to prosecute the sale of the have printed any legal notice of copyright. The
Manning book, then, unless the successor of answer denies that the defendant, by publishing
Thompson would continue the same, Hubbard and selling the Periam and Baker book, has in-
Bros. should have the exclusive right to sell said fringed any copyright belonging to Hubbard
book; and that, on the execution of such con- in the Manning book.
tract, Thompson would assign the copyright to
Hubbard Bros., and they would execute a
mortgage to him on such plates, cuts, and
stamps, to secure to him the performance of
the contract.

A replication was filed to this answer, on the 23d of February, 1883.

On the 10th of May, 1883, Thompson filed
in the same court his cross bill against Hub-
bard, setting forth that, having procured to be
The answer further alleges, that the $4,000 compiled the Manning book, and being its
so to be paid by Hubbard constituted only a owner, he, on the 27th of March, 1880, before
small portion of the consideration of the con- the manuscript of it was completed, and before
tract to be made; that the plates, cuts, and the book was published, deposited in the mail,
stamps were of greater value than $10,000; addressed to the Librarian of Congress, at
that Hubbard falsely pretending to have made Washington, a printed copy of the title of the
a memorandum in writing, with pencil, on book, which was received by such librarian;
paper, containing an outline of the terms and and that, having thereafter published the book,
considerations of the contract thereafter to be he did, within ten days from its publication,
entered into, a copy of which memorandum deposit in the mail, addressed to such librarian,
written by Hubbard is Exhibit A to the bill, at Washington, two complete printed copies
represented to Thompson that such memoran- thereof, of the best edition issued, and did
dum was incomplete, but contained the out-print in each copy of said book published by
lines of the contract thereafter to be made in him, on the page next after the title page, a
accordance with such full understanding of notice of copyright, in accordance with the
the parties, and promised that he would pre- statute, and so became the owner of the copy.
pare a contract in proper form, in writing, right of the book, and received from said li
and elaborate the same in accordance with brarian a certificate of the copyright thereof.
such considerations, and that Hubbard Bros.
would execute it; that thus by fraud and de-
ceit, Hubbard persuaded Thompson to sign
with a pencil, such memorandum, Thompson
at the time believing and relying on such false
promises and representations of Hubbard; and
that such memorandum was not agreed upon
as, or understood or intended to be, the con-
tract to be entered into by Thompson and
Hubbard Bros., nor was it understood as, or
intended to be, an assignment of the copyright
of the book.

The cross bill contains in substance the same
allegations as are found in Thompson's answer
to the original bill, in regard to the negotia-
tions between the parties and the terms of the
verbal agreement alleged by Thompson to have
been made between them. It alleges that, dur-
ing the conversation at St. Louis, and while
crossing to East St. Louis, each of the parties
had in his hands a written paper, both of which
were produced by Hubbard at the time; that,
during the consideration of such writings, Hub-
bard made or pretended to make some altera-
The answer further avers that Thompson, tions in the one held by him, which instrument
believing that Hubbard Bros. would in good and alterations Thompson did not at the time ex-
faith execute the contract as agreed to be made amine or read; that neither of the writings was
and carry out the same in accordance with the at the time altered to correspond with the ver-
terms so agreed upon, shipped and delivered bal agreement, and the two writings were not
to Hubbard Bros. the plates, cuts, and stamps at the time compared, and the alterations so
necessary for the manufacture of the book, and made in the one held by Hubbard were not
at the request of Hubbard or of Hubbard Bros., made in the one held by Thompson; that after-
forwarded to them the paper marked Exhibit wards Hubbard proposed to insert, and did in-
B to the bill, which was intended to be only sert, in said writings the clause, "Plates to be
a statement of the account of a part of the con- made collateral security for payment of notes;"
sideration to be rendered by Hubbard Bros., that that clause was not in accordance with the
namely, $4,000, which was to be paid in money; agreement then and there made, it having been
that Hubbard Bros. thereafter refused to carry agreed that the plates should be collateral se-
out any part of the contract as agreed upon, curity for the performance of the verbal agree-
and had refused to furnish Thompson with ment; that afterwards, and when the train was
copies of the Manning book at the price agreed about to leave East St. Louis, where Thomp-
upon, or at any price less than the usual and son was to leave it and return to St. Louis,
regular wholesale price thereof, and had refused Hubbard, representing to Thompson that the
to manufacture for, or deliver to, Thompson writings were incomplete, but that they con-
any copy of said book, containing the copy-tained the outlines of the contract thereafter to
right notice of him or of N. D. Thompson &
Co., in accordance with the statute, and, hav.
ing published editions of the book, had sold it
in the territory exclusively to be reserved and

be made, and promising that he would prepare in proper form, in writing, a contract, and elaborate it in accordance with the verbal agree 131 U. S. ment and the considerations before set forth,

[133]

and that Hubbard Bros. would execute it, and of the territory agreed to be reserved by the representing and promising that the said writ- verbal agreement, the territory to be reserved ings would be used only as a guide and outline, by the contract to be made should be as folfrom which the real agreement would be drawn lows: The two southern tiers of counties in and framed in accordance with the full under- lowa, instead of three, as in said verbal agree[134] standing of the parties as so set forth, per- ment provided as aforesaid; Illinois, south of suaded Thompson to sign, with a pencil, the and including the Counties of Henry, Bureau, writing attached to the original bill as Exhibit LaSalle, Grundy, and Kankakee; none in InA; that, immediately on the return of Hubbard diara instead of a third of it; the boundary to Philadelphia, Hubbard Bros. caused their line in Kentucky to be the Louisville and Nashagents to be instructed to observe the boundary ville Railroad, and, in Tennessee, the Nashville [136] lines of the territory reserved to Thompson in and Montgomery Railroad; none of Alabama, said verbal agreement, as territory which had instead of half of it, as in said verbal agreebeen reserved exclusively to Thompson there- ment provided; and the whole of Missouri, Arby; that Thompson did not at the time see or kansas, Texas, Louisiana and Mississippi and know that the following clause in the writings of the Indian Territory; and that Thompson was contained therein, namely: "The field on should have the right to work out agencies Stock Book to be the same as on H. Bros. books made outside the field thus reserved prior to except the six Co's in Mo. adjacent to Kansas the acceptance by Hubbard Bros. of the proCity," and did not discover the same until a posal last aforesaid; that Hubbard Bros., on day or two after he had signed the memoran- the 16th of April, 1880, declined such proposidum; that that clause was inserted by Hubbard tion, and made a counter proposition to Thompwithout the knowledge and consent of Thompson, which he, on the 20th of April, 1880, deson, and Thompson never agreed or intended to agree to the same; that immediately after he discovered that clause in the writing retained by him, a copy of which writing is contained [135] in the margin,' he and Hubbard Bros. had a correspondence in relation to the territory to be reserved to him, in which he insisted upon the territory described in such verbal agreement, as that agreed upon between Hubbard Bros. and himself to be reserved to him, except as afterwards mentioned in the cross bill; that, on the 13th of April, 1880, he proposed, by way of concession to Hubbard Bros., that instead

'MEMORANDUM OF AGREEMENT.

N. D. T. agrees to sell H. Bros. the plates (1000 p.) of Manning's Stock Dr., etc., including copyright, the originals of cuts, stamps for binding and circular plates, for $4,000, and deliver same soon as first edition now printing is off press, well boxed, at depot in St. Louis, free of charge for boxing and drayage.

He agrees further to pay for all books manufactured from said plates upon his order (with his exclusive imprint and copyright mark); to order not less than 500 at a time, and sixty days, and in time to admit of their being bound, after receipt by Hubbard Bros. of his order. He agrees to pay for all books he orders made from said plates, a net price of teu per cent in advance of cost of manufacture, including boxing and drayage.

He further agrees to confine his sales to the following territory, viz.: the States of Missouri, Ar

kansas, Indian Territory, Louisiana, Texas, Missis

sippi, Southern Illinois, one third of each Indiana,
Kentucky, Tennessee.

He further agrees, for the period of two years, to
publish no books, except those he now has in
course of publication, viz.: Texas History, Alma-
nac, and the Tice Almanac, and to devote his ener-
gies largely for the above period to the vigorous
prosecution of the sale of the publications (Books
and Bibles) of Hubbard Bros., and to theirs exclu-
sively (including bibles), (aside from his own as
named), paying for the same within sixty days of
date of bills, at the rate of sixty-five per cent off
from the retail prices, and for all circulars, pros-
pectus books, posters, etc., at cost.

In consideration of the fulfillment of the foregoing covenants and agreements, H. Bros. agree to purchase and do hereby purchase the plates of Mg's Stock Dr., etc., as before described, paying 131 U. S. U. S., Book 83.

clined to accept; that Thompson then proposed
that if the Iowa and Illinois territory, which
he reserved in such proposition, should be con-
ceded to him, he would agree to the proposi-
tion of Hubbard Bros. to make the territory to
be reserved to him in Kentucky and Tennes-
see all that lying west of the Tennessee River,
the other territory to be the same as in his said
proposition; that Hubbard Bros., on the 20th of
April, 1880, proposed to accept the proposition
last aforesaid of Thompson if Thompson would
relinquish the outside agencies, meaning those
agencies not within the territory reserved and

for the same as follows, viz.: $500 in present stock
accounts unsettled, and $500, 24 months; $1,000 by
note at 8 months; $1,000 by note at 12 months;
$1,000 by note at 18 months, notes bearing interest
at 6 per cent per annum.

They further agree to supply N. D. T. all he may
order of books from said plates in 500 lots, with his
exclusive imprint and copyright mark, at 10 per
cent advance on actual cost of manufacture (said
cost to include boxing and drayage), and for cash
on receipt of goods by N. D. T.

their other publications (books and bibles, as are
They further agree to supply N. D. T. such of
issued for sale through their home and branch of-
fices), at a discount of 65 per cent off the retail
price of the same, granting him the exclusive right
of sale of close books in Mo. (excepting six coun-
ties adjacent to Kansas City), Ark., Texas, La., that
part of Ky. and Tenn. lying west of the Tenn. Riv-

er, and So. Ill.

tract shall be responsible to the other in the amount
It is mutually agreed that each party to this con-
of $1 per copy for any close or exclusive books sold
upon the territory of the other, and that all appli-
cations for agency coming from without the field
of either shall be referred to the party having right
of sale, and a charge of 50 cents made for each ap-
plication so referred.

It is further agreed that, should N. D. T. go out
of business, or for any reason cease to prosecute
the sale of Manning's Stock Dr., then the right of
sale in his exclusive field shall belong to H. Bros..
unless his successor shall prosecute the sale in like