33 F. 348 (D.Colo. 1888), Stover v. Lathrop

• Citation: 33 F. 348
• Party Name: STOVER et al. v. LATHROP.
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 348

33 F. 348 (D.Colo. 1888)

STOVER et al.

v.

LATHROP.

United States Circuit Court, D. Colorado.

1888

Browne & Putnam, for plaintiffs.

W. B. Mills, for defendant.

BREWER, J.

In case No. 1,886, on a motion for a new trial, which was argued before my Brother HALLETT and myself last week, the question which was argued by the defendant's counsel, the verdict having been for defendant, was one of copyright, which arose on the trial, and in respect to which my Brother HALLETT declined to give any instructions, or at least any instructions recognizing any right on the part of plaintiff.

Page 349

I think it would be very hard to find in the pleadings anything which would justify the bringing up for consideration this matter of the copyright. The complaint is in trover, and alleges that the plaintiff, as surviving partner, was the owner of a set of abstract books, and that he loaned them to the defendant, at that time the recorder of this county, to be used by him and kept up, and thereafter returned upon reasonable demand. Demand was made, and refused; and the books were sold by the defendant to a third party, and the value of them is claimed in this complaint. There is no allegation in the complaint that there was any copyright upon the books; the only thing that even squints in that direction is this statement in the matter of description: 'Said property consisted of abstract books known as the 'Durfee System of Abstracts.' ' Now, whether there was any copyright upon that system is not averred, nor is there any allegation of any infringement of a copyright, or any claim for damages for such an infringement. It is a simple action of trover for the conversion of that set of abstract books. Under those circumstances, it seems to us that there was nothing in respect to the copyright, or to any infringement of the copyright, which was proper matter of consideration for the jury. It is true the plaintiff offered in evidence proof of having a copyright on that system of abstract books; but that was, undoubtedly, merely for the purpose of identification and description; or at least, if it did come in without objection, it did not open the door for any inquiry as to an infringement of that copyright. But even if it were fully set forth in the complaint and was a proper matter of inquiry, there are two very serious difficulties standing in the way of the plaintiff's recovery. First, it is very doubtful whether a...