Levyeau v. Clements

Citation56 N.E. 735,175 Mass. 376
Decision Date02 March 1900
CourtUnited States State Supreme Judicial Court of Massachusetts

175 Mass. 376
56 N.E. 735


Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1900.

Report from superior court, Suffolk county; Henry N. Sheldon, Judge.

Action by one Levyeau against one Clements for conversion. Verdict for plaintiff. Case reported, and judgment for defendant.

Defendant is a wholesale granite and monument dealer, and the plaintiff is in the engraving business. On January 8, 1897, the plaintiff submitted to the defendant a bid for making 87 cuts or dies from the defendant's drawings or photographs of monuments. On January 11th he submitted another bid for printing from said cuts 5,000 copies of a certain pamphlet. The defendant subsequently accepted both bids, the two contracts being separate. The price for printing was about four cents a copy. When the cuts were finished, proofs of them were submitted to the defendant, who approved them. The plaintiff then delivered the cuts to a third party, with whom he had contracted for the printing. He ordered printed 80 copies in excess of the 5,000 for the defendant, intending at the time of contracting to use said dies for the purpose of printing these extra copies for himself, and quoting a lower price in order to get these extra copies for himself; but he did not at that time, nor at any time before the alleged conversion, infore the defendant of this intention, nor secure permission from him to use said cuts for this purpose. He intended to use these sample copies for the purpose of advertising his own business (cutting them up so that one or two illustrations should be used as samples), and sending these samples with other advertising matter to marble dealers, wholesale and retail, throughout the United States, and also to use the sample pamphlets in soliciting trade, showing them as samples of the kind of work he did. By mistake at the bindery the whole 5,080 copies were delivered to the defendant; but the plaintiff immediately notified the defendant of this fact, and requested him to deliver possession of the 80 copies to the plaintiff's agent. This the defendant refused to do, but used the 80 pamphlets as he did the others, sending them out through the mails to retail marble dealers throughout the country. Subsequently he offered to pay the plaintiff for the 80 copies at the same rate at which he paid for the 5,000, and before this suit was brought the defendant's attorney tendered the plaintiff's attorney five dollars in cash as payment for said 80 copies, which was...

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