Osgood v. A.S. Aloe Instrument Co.

Citation69 F. 291
Decision Date15 June 1895
Docket Number3,839.
PartiesOSGOOD v. A. S. ALOE INSTRUMENT CO.
CourtU.S. District Court — Eastern District of Missouri

Paul Bakewell, for complainant.

M. B Jonas, and A. C. Fowler, for defendant.

ADAMS District Judge.

This is an action for an alleged infringement of a copyright. An answer was filed, and complainant excepts to several of its parts. The particulars will appear hereafter.

1. The first exception is taken because, as is said, the answer is not entitled in the case so as to agree with the names of the parties as they appear in the amended bill. This, if true, is not ground for exception at all. The remedy for such failure is to move to take the answer from the files. But, as a matter of fact, the answer is not defective in the particular complained of, as there appears to be an appropriate heading as follows: 'The Answer of the Aloe Instrument Company Defendant, to the Amended Bill of Complaint of Adelaide H. Osgood, Complainant. ' This is a perfect title, and it is not rendered imperfect by the fact that the pleader premised this heading by the style, 'Osgood vs. Aloe.' The first exception is, therefore, disallowed.

2. The second exception is taken because, as is said, the answer filed in the cause does not appear to be sworn to by any officer of representative of defendant corporation. If such were in fact true, it does not afford ground for exception to the answer, either for insufficiency, scandal, or impertinence. The proper remedy for this, also, is to move to take the answer from the files. However, I do not think the allegation in the exception is true, for the following reasons: The answer referred to concludes as follows: 'In testimony whereof the said defendant, the Aloe Instrument Company, has caused its corporate name and seal to be hereto affixed by Sidney Aloe, its president. ' The affidavit is made by Sidney Aloe, in which he states that he has 'read the foregoing answer, and knows the contents thereof, and that the same is true, of his own knowledge,' etc. Preceding this affidavit, at the end of the answer, he signs himself as president of the A. S. Aloe Instrument Company. This exception is therefore disallowed.

3. The third exception is for impertinence, and excepts to that part of defendant's answer which reads as follows:

'The defendant, further answering, denies that the book marked 'Complainant's Book,' of which profert is made in the said amended bill of complaint, is a true and substantial copy of the said copyrighted book, but avers that the title-page of the book so marked had been removed, and another page substituted therefor, which substituted page contains matter materially and vitally different from the matter contained on the title-page and the page immediately following the title-page of the copyrighted book, the matter on said pages of the said copyrighted book being fatally defective.'

This part of the answer, so far as it can be claimed to be responsive to any allegations of the amended bill, is responsive to that part of the amended bill reading as follows:

'And your orator marks one of her books, 'Complainant's Book,' and is ready to produce the same in court, if required.'

So far as the portion of the answer excepted to consists of a denial, it is manifestly broader than the averments of the bill itself, and is manifestly an attempt to involve an affirmative defense in a denial of averments of the bill itself. It is not clearly apparent for what purpose the allegation of the bill above quoted is made. It is not clear that the complainant intends to state that the book marked 'Complainant's Book,' is a true or substantial copy of her copyrighted book. It is certain, however, that the defendant cannot enlarge the scope and meaning of the averment of the bill by expanding the denial beyond the allegations of the bill.

The remaining part of the answer excepted to, as above quoted, manifestly is intended to state new matter constituting an affirmative defense. In this, I think the pleader has failed. His averments are not specific enough. In order to state an affirmative defense in the respect contemplated in this part of the answer, the pleader should make it appear affirmatively that the title-page of the book of which profert is made was removed by or at the instance of the complainant, and another page substituted therefor, after the publication of the book was made; for, if this change were made prior to the publication, it might have been entirely proper and necessary so to do to conform to the true and legal notice of copyright. The pleader should also state the facts and particulars in respect of which the matter on the title and next following page of the copyrighted book are fatally defective, rather than to state, as he does, that the above-mentioned matter is 'fatally defective.' I think the portion of the answer criticised by the third exception, as pleaded, constitutes no defense, and that the exception thereto for this reason also is well taken. It is therefore allowed.

4...

To continue reading

Request your trial
4 cases
  • Heim v. Universal Pictures Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 16 d6 Fevereiro d6 1946
    ...492. 4 See McCarthy & Fischer, Inc. v. White, D.C., 259 F. 364; Shafter, Musical Copyright (2d ed. 1939), 130-131. 5 Cf. Osgood v. A. S. Aloe Co., C.C., 69 F. 291, 294; Patterson v. Century Productions, supra, 93 F.2d at page 6 In United Dictionary Co. v. G. & C. Merriam Co., 1908, 208 U.S.......
  • American Visuals Corporation v. Holland
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 20 d2 Novembro d2 1956
    ...of the Copyright Act, was sufficient publication to enable plaintiff to maintain suit under that Act, with Osgood v. A. S. Aloe Instrument Co., C.C.Mo.1895, 69 F. 291, holding that deposit of two books with the Library of Congress in advance of obtaining copyright was not publication consti......
  • Mifflin v. Dutton
    • United States
    • U.S. District Court — District of Massachusetts
    • 18 d1 Março d1 1901
    ...L.Ed. 76; Lithographic Co. v. Sarony, 111 U.S. 53, 55, 4 Sup.Ct. 279, 28 L.Ed. 349; Osgood v. Instrument Co. (C.C.) 83 F. 470; Id. (C.C.) 69 F. 291; Hoertel v. Tuck Sons Co. (C.C.) F. 844; Higgins v. Keuffel (C.C.) 30 F. 627; Id., 140 U.S. 428, 11 Sup.Ct. 731, 35 L.Ed. 470; Jackson v. Walki......
  • Daly v. Brady
    • United States
    • U.S. District Court — Southern District of New York
    • 24 d1 Junho d1 1895
    ... ... recorded said title as required by said acts, a certificate ... and record in the form required ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT