Ladd v. Oxnard

Decision Date16 April 1896
Docket Number707.
Citation75 F. 703
PartiesLADD et al. v. OXNARD.
CourtU.S. District Court — District of Massachusetts

Upon the question of infringement the evidence gement the evidence consisted of affidavits, mainly, by the complainants and by the defendant and his son. The chief affidavit in support of the motion was made by complainant David M. Ladd, and is here set out in full:

Affidavit of David M. Ladd.

(Filed February 6, 1896.)

United States of America, District of Massachusetts.

On this sixth day of February, A.D. 1896, before me personally appeared David M. Ladd, who, being by me duly sworn, deposes and says that he is one of the complainants in the above-entitled action; that he has during the past seven years had personal supervision and direction of the compiling, preparation, revision, and transcribing of the manuscript copy of each of the several editions of the United Mercantile Credit Ratings for the Marble Granite, and Stone Trade; that during that period his firm has continually had as subscribers, with one or two exceptions, all the leading manufacturers, quarriers, and wholesalers of marble and granite as used for both monumental and building purposes that his firm and its representatives and agents have repeatedly consulted said subscribers with the aim and purpose in view of securing items of experience that would be of assistance in the revision and correction of said several editions of said Credit Ratings; and that from personal experience he has found it a matter of impossibility and impracticability to secure, from said individual subscribers or members of the wholesale trade, information, corrections or changes of reliability or value to aid him in connection with the revision of said work, except as my have related to the particular customers or patrons of such individuals or concerns, which would necessarily and naturally be of limited number and a very small minority of all the firms and parties engaged in the various lines in the several states as included in said work. Said deponent further says that he had personal charge and supervision of the first edition of said Credit Ratings, issued in June, 1890, and that neither the compilation of that nor any of the several editions of the same work issued since that date have been or were compiled or revised from town or city directories or trade lists, but that the information and matter contained in said books were secured through special correspondents, agents, and representatives in all sections of the United States and Canada, and from direct correspondence with the retail dealers in marble, granite, and stone in the various towns and cities of the entire country; that the original answers to such direct correspondence with dealers, and the revised lists as sent in annually by said representatives, agents and special correspondents, are now on file in the office of said complainants, and, in consequence, that if any instances occur where errors and misprints appear in both complainants' and respondents' books it cannot be explained or excused on the ground that both used the same common sources of information, unless it can be shown that complainants' agents and representatives and special correspondents also acted in the same capacity for said respondents. The deponent further says that he has made a careful comparison between the work issued by his firm in June, 1894, and the respondents' book, and that he finds that clerical errors and misspellings of his own making from the printed cards and letter headings and pen signatures of various dealers are reproduced in said respondents' book without change; that the names of parties who were never engaged in the marble, granite, or stone line, but whose names were inserted in Credit Ratings as detectives for, in other words, for the purpose of enabling said complainants to discover infringements, should any be attempted) are also reproduced in the book of said respondents; that the names of towns correctly inserted in every standard atlas and gazetteer, but misspelled through error by said complainants in their book, also appear with like misspelling in the book of said respondents; that names wrongfully classified under towns of the same name in different states also appear reproduced without correction in said respondents' book some of which are shown in the list or table herewith appearing, and further shown by the several letters and communications on file herewith, marked Exhibits A1 to Z, inclusive, and numbers 1 to 15, inclusive. The deponent further says that over ten thousand corrections and changes were made on the 1894 edition of Credit Ratings, as revised and issued in June, 1895, while said Blue Book, issued by respondents in November, 1895, is almost identical with the June, 1894, edition of Credit Ratings, issued seventeen months previously by the complainants, except that a few corrections were made in Pennsylvania and one or two other states. The deponent further says that on the states of Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, and Georgia the substance of the 1894 book of Credit Ratings is reproduced in the Blue Book, with only five or six alterations and one addition; while in the 1895 edition of Credit Ratings, issued seven months in advance of the Blue Book, several hundred changes, additions, and discontinuances were made in the same states. The deponent further says that no edition of the Credit Ratings issued to date has contained less than eight thousand changes from the book of the previous year, and that no two editions of Credit Ratings, published in different years, bear such close resemblance or show such uniformity in composition and make-up as do the Blue Book of the respondents and the 1894 Credit Ratings issued by complainants. The deponent further says that each year, since 1889, he has personally devoted two-thirds of his entire time, working long hours and frequently evenings in the revision of this work, constantly employing, during that period, three assistants in writing and mailing correspondence and lists for revision. The said deponent further says that, in such comparison of said Blue Book with said Credit Ratings of 1894 as he has been able to make (which has been thorough in the above-mentioned states), he finds the similarities given in said lists or tables hereinafter appearing, as to the states of Alabama, Arizona, Arkansas, and California, and says that the same similarity appears as to the states of Colorado, Connecticut, Delaware, and Georgia; and from his examination of other states the deponent believes that a further specification would be simply to recopy both of said books, except that some changes appear in the states of Pennsylvania and Massachusetts. In the said list or table hereinafter appearing, the deponent has in some instances added, after the word 'Note,' a few words in explanation, and that the word 'Note' and explanation following should not be taken as appearing in either of said books. And the deponent further says that the following are the letters, characters, and numerals, and their respective significations, as appearing in the said Blue Book and said Credit Ratings:

CREDIT RATINGS. BLUE BOOK. TRADE CLASSIFICATIONS. KEY OF TRADES. G Granite M Marble M Marble G Granite Z Worker S Stone R Retail. W Worker Q Quarry X Wholesale H Building R Retail W Wholesale Q Quarry I Interior B Building -- * Monumental I Interior B Stone. k Monumental. ESTIMATED WEALTH. KEY OF RATINGS. 1 $1,000,000 and above. AA $1,000,000. 2 500,000 to $1,000,000 A 300,000 to $500,000 3 400,000 " 500,000 C 100,000 " 300,000 4 300,000 " 400,000 D 75,000 " 100.000 5 250,000 " 300,000 E 40,000 " 75,000 6 200,000 " 250,000 F 20,000 " 40,000 7 150,000 " 200,000 H 10,000 " 20,000 8 100,000 " 150,000 J 5,000 " 10,000 9 75,000 " 100,000 K 2,500 " 5,000 10 50,000 " 75,000 L 1,500 " 2,500 11 35,000 " 50,000 N 600 " 1,500 12 20,000 " 35,000 P 1 " 600 13 10,000 " 20,000 1 First-Class Pay 14 5,000 " 10,000 2 Prompt Pay 15 3,000 " 5,000 3 Fair Pay 16 2,000 " 3,000 4 Moderate Pay 17 1,000 " 2,000 5 Investigate Pay. 18 500 " 1,000 19 0 " 500 20 0 And said deponent submits the following list or table: CREDIT RATINGS. BLUE BOOK. ALABAMA. ALABAMA. Anninston Calhoun. Anniston, Calhoun Co. * M--Jewell, W. P. & Co. 15 F. GMk Jewell, W. P. & C. I. K 3 Birmingham Jefferson Birmingham Jefferson Co. MB--Alabama Marble & Stone Co. GMS--Alabama Marble and Stone Co. (Cap. paid in $12,300.) (cap. paid in $12,300.) * M--Birmingham Marble Works GMk Birmingham Marble Works (See Thos. H. Holt) (see Thos. H. Holt) * M Holt, Thos. H. 17 F GMk Holt, Thos. H. L 3 Calera Shelby Calera, Shelby Co. * M Evans, Samuel J., 20 GMk Evans, Samuel J. 5 Decatur Morgan Decatur, Morgan Co. * M Hummel, J., 20 J GMk Hummel, J., 5 * M Stewart, W. P., 19 J GMk Stewart, W. P. P 4 Eufaula Barbour Eufaula, Barbour Co. * M Tansey, James, 13 E GMk Tansey, James H 3 Florence Lauderdale Florence, Lauderdale Co. * M Eldred, C. B. 17 J GMk Eldred, C. B. L 3 * M Florence Marble Works GMk Florence Marble Works, (see C. B. Eldred) (See C. B. Eldred) Fort Payne De Kalb Fort Payne, De Kalb Co. * M Little, N. B. 19 K GMk Little, N. B. P 4 Gadsen Etowah Gadsen, Etowah Co. * M Darnell, M. S. & Co. GMk Darnell, M. S. & Co. Hartsell's Morgan Hartsell's Morgan Co. * M Moore, & Stinson 19 J GMk Moore & Stinsom P 4 Note. W. S. Stinson had succeeded Moore & Stinson. (See 1895 Credit Ratings.) Huntsville Madison Huntsville, Madison Co. *M Bakers & Conway 14 E GMk Bakers & Conway J 3 *M Hummell, Schaake & Co. J GMk Hummell, Schaake & Co. 5 Note. J. F. Hummell & Sons had succeeded Hummell, Schaake & Co. (See Exhibit A1 and error in spelling.) Isbell Franklin Isbell, Franklin Co. (
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  • American Visuals Corporation v. Holland
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 20 Noviembre 1956
    ...amount to publication requiring plaintiff to deposit two copies with in copyright office in advance of maintaining suit, with Ladd v. Oxnard, C.C.1896, 75 F. 703, holding that delivery of a book on a loan basis, giving credit ratings on stone and granite dealers to 175 subscribers, was gene......
  • RCA Mfg. Co. v. Whiteman, 357.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 16 Diciembre 1940
    ...N.Y. 241, 49 N.E. 872, 41 L.R.A. 846, 63 Am.St.Rep. 666, and that is the leading case. Judge Putnam had held the same in 1896 (Ladd v. Oxnard, C.C., 75 F. 703, 730) and he was followed by Judge Townsend (Larrowe-Loisette v. O'Loughlin, C.C., 88 F. 896), Judge Lacombe (Wagner v. Conried, C.C......
  • Kramer v. Newman
    • United States
    • U.S. District Court — Southern District of New York
    • 29 Octubre 1990
    ...concluding that private circulation to friends or acquaintances or even to a class is not a general publication. In Ladd v. Oxnard, 75 F. 703 (Mass.C.C. 1896), 179 subscribers of certain books were issued the books as a "loan" for money, with the restriction that if any copy was found in an......
  • Werckmeister v. American Lithographic Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Noviembre 1904
    ...book was exposed for sale, so that the public without discrimination as to persons might have an opportunity to enjoy it.' In Ladd v. Oxnard (C.C.) 75 F. 705, Judge said: 'While the nature of the use of the complainants' book was sought to be limited, there was no limit placed by the compla......
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