Davis v. Vories

• Decision Date: 03 November 1897
• Citation: 42 S.W. 707,141 Mo. 234
• Parties: DAVIS et al. v. VORIES.
• Court: Missouri Supreme Court

42 S.W. 707

141 Mo. 234

DAVIS et al. v. VORIES.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

COPYRIGHT — TRIAL — EVIDENCE — FRAUD.

1. The owner of a copyright may assign the exclusive right to sell the copyrighted work in specified territory.

2. Where it is admitted that defendant's evidence tends to support the issues tendered by him, it is proper to refuse an instruction for the plaintiff amounting to a demurrer to the evidence.

3. Upon the issue of fraudulent intent, evidence of other acts of the accused party of a kindred nature are admissible in order to establish his intent.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by A. G. Davis and Elizabeth C. Davis against Oliver H. P. Vories. Defendant obtained judgment. Plaintiffs appeal. Reversed.

Casteel & Haynes, for appellants. S. G. Loring and Hall & Pike, for respondent.

BRACE, J.

This is an action on six promissory notes, dated the 24th day of September, 1879, amounting in the aggregate to $1,400, all payable within one year and with 10 per cent. interest from date, alleged in the petition to have been executed by the defendant to one R. T. Root, and by him assigned to the plaintiff A. G. Davis on the 11th day of November, 1879, and by him assigned to his wife, the co-plaintiff, Elizabeth C. Davis, on the 5th day of June, 1884. The answer of the defendant admits the execution of the notes, and pleads, as a defense, failure of consideration, and that the same were procured by the fraudulent representations of the said Root to the defendant, and that, if they were assigned as alleged, they were so assigned in consideration of the same fraudulent scheme set out in the answer in detail, and mala fides, to deprive him of his defense thereto. It appears from so much of the evidence as is set out in the abstract that the only consideration the defendant received for the notes sued on was an instrument of writing, executed in duplicate, which is as follows:

"Territory Deed.

"Whereas, R. T. Root, of Burlington, Iowa (in compliance with an act of congress), did enter for copyright March 30th, 1874, and did obtain the copyright of, a book entitled `The Footprints of Time'; and whereas, Oliver H. P. Vories, of Santa Rosa, Mo., represents that having personally examined and thus become well satisfied with the merits and value of said Footprints of Time, now desires to obtain, and makes this application to purchase from R. T. Root, the necessary supply of books, and the exclusive right to sell said Footprints of Time, upon the terms herein specified, within the uncanvassed parts of the following described territory, viz.: A territory containing a population of fifty thousand (50,000) inhabitants, which said Vories may select in any territory not otherwise arranged for, provided that he takes not less than a county in a place: Now, therefore, this instrument witnesseth: That for and in consideration of the sum of fifteen hundred dollars, and for the further consideration that the said Oliver H. P. Vories agrees that he will in person, or by his agent or agents, promptly enter upon, and vigorously prosecute, the work of canvassing each portion of the above territory by school districts and by townships, and will sell the aforesaid book in the regular way by subscription, and in that way only, I, R. T. Root, by these presents, do grant unto the said Oliver H. P. Vories the exclusive right to sell the said Footprints of Time, from the date hereof, within the above-described territory, but not elsewhere, neither in any other territory whatsoever, directly or indirectly, nor to sell said book in the territory hereby conveyed to be resold in any other territory. And for and during the time necessary to make one thorough canvass of the territory hereby conveyed, but not to exceed three years from July 1st, 1878, and for such further time as the parties hereto may mutually agree upon, the said Oliver H. P. Vories is hereby authorized to draw on me for books sufficient to supply the above-described territory, upon the conditions above mentioned, and at the following prices: In cloth binding, one dollar and twenty-five cents (1.25) each; and in library style of binding, at one dollar and seventy cents ($1.70) each; the books to be delivered to the said Oliver H. P. Vories at the bindery or at the place of manufacture. Witness my hand, this 24th day of September, 1879. R. T. Root.

"Received, this 24th day of September, A. D. 1879, from R. T. Root, a territory deed, of which the above is a full, perfect, and exact copy, which I hereby accept. Oliver H. P. Vories.

"John M'Kitrick, Witness."

The evidence for the defendant, except the deposition of James Leach, is not set out in the abstract, but it is therein stated that "defendant, to sustain the issues on his part, introduced evidence tending to support the issues tendered in his answer, and tending to prove the facts predicated in the instructions given on his motion." The plaintiff assigns for error the giving of the defendant's first and fourth instructions, the refusal to give the plaintiff's first and seventh, the modification by the court of his third and fourth instructions, and the admission of the deposition of Leach.

1. The first instruction given for the defendant is as follows: "The court instructs the jury that, in law, Root, the payee in the notes in suit, had no power to assign to the defendant...