MacDonald v. Page Co.

• Decision Date: 30 June 1928
• Citation: 264 Mass. 199,162 N.E. 364
• Parties: MACDONALD v. PAGE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 199

162 N.E. 364

MACDONALD

v.PAGE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1928.

Appeal from Superior Court, Suffolk County; F. T. Hammond, Judge.

Bill by L. M. Montgomery MacDonald against the Page Company and others for an injunction, for damages, and for an accounting. To review an interlocutory decree affirming the master's report, both parties appeal. Decree sustained in part and reversed in part, and case remanded to the superior court to restate the account in conformity with the opinion.W. A. Rollins, of Boston, and S. A. Jones, of Melrose Highlands, for plaintiff.

Asa P. French, of Boston, for defendant Page Co.

PIERCE, J.

After the judgment and rescript, in the case entitled MacDonald v. Page Co., in 251 Mass. 299, 146 N. E. 727, the case came before a judge of the superior court who entered, on July 3, 1925, an interlocutory decree; so far as is material to the present inquiry it reads:

‘That the defendant * * * has published and sold in ‘Further Chronicles of Avonlea’ stories written by the plaintiff and belonging to her which it was not authorized to publish, and that the plaintiff is entitled to an injunction against further publication and/or sale of the same and to the profits made by the defendant * * * from the said publication * * * [and] that this cause be recommitted * * * to take an account of the profits made by the defendant * * * from the sale of said ‘Further Chronicles of Avonlea.”

On December 24, 1925, the cause was referred to a master to ‘hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.’ The report of the master was later filed and confirmed, and the case comes again before this court on the appeals of both the plaintiff and the defendant the Page Company (which will herein be called the defendant) from decrees of the superior court, the question presented being, in substance, how much the plaintiff is entitled to on an accounting for profits from the sale of the book called ‘Further Chronicles of Avonlea.’

The master finds that the total number of books sold from 1920 to 1925, inclusive was nineteen thousand, eight hundred and ninety and that the defendant received therefor $20,360.10. Of the foregoing, one thousand, two hundred and sixty-six copies were sold after April 9, 1923, the date of the judge's decision which was affirmed in 251 Mass. 299, 146 N. E. 727, and four hundred and thirty-eight were sold after February 24, 1925, the date of the decision in this court. On April 27, 1925, the defendant entered into a contract with George G. Harrap & Co., Limited, of London, England, by which the former licensed and granted the latter ‘the exclusive right to print, publish and send for the British market exclusively,’ one hundred thousand copies, and no more, of eight titles, including ‘Further Chronicles of Avonlea’ to sell for ‘ 3/6d/net’ in return for a royalty of $.09 a copy, totalling $9,000. The contract provided that:

‘An edition of each of these eight titles is to be included in the total of one hundred thousand (100,000) volumes, but the individual quantities of each title are at the option of George G. Harrap & Company, Ltd.’

[1] On the contention of the defendant, that the Harrap Company reported it had published five thousand copies of the book and therefore it should account to the plaintiff for that amount only, which represents the ration between one hundred thousand, the whole number of books limited in the Harrap contract, and five thousand, that is, 5 per cent. of $1,125, the master found that the statement of the number of books published by the Harrap Company was hearsay only, and that it cannot be ascertained how many copies of the book have already been published or will be published hereafter. ‘It is of course impossible to determine with mathematical accuracy the value of ‘Further Chronicles of Avonlea’ as compared with each of the seven other books mentioned in the Harrap contract.' The master found that $1,125, one-eighth of the contract price, should be charged against the defendant on account of the book, because that allocation is fair and equitable to both plaintiff and defendant. This finding is not irreconcilable with other facts found, and on familiar principles must stand. Glover v. Waltham Laundry Co., 235 Mass. 330, 127 N. E. 420.

The master finds that in this book there are two stories printed from manuscripts furnished by the plaintiff to the defendant which do not come under the ban of publication as do the other stories in the book, and it is contended by the defendant that a proportional allowance for the expense of paper and printing should be made to the defendant, based upon the ratio which the number of pages in these two stories bears to the number of pages in the whole book. He found and ruled ‘that the publication of this book by the defendant was not an act of literary piracy’; that ‘at the time of publication the defendant mistakenly believed it had a right to publish and market the book’; and that it ‘misinterpreted its contract with the plaintiff.’ He further ruled that ‘the defendant [plaintiff] is entitled to full compensation from the defendant,’ but ‘the defendant nevertheless should be allowed in this accounting all those expenses of publishing and marketing which are directly attributable to this book.’ The publication of the book, with the exception of four hundred and thirty-eight copies, took place before the date of rescript. ‘During the trial, the attorney for the defendant in whose custody and possession the unsold copies of the book were [that is three hundred and seven books], made a tender of said unsold copies to the attorney for the plaintiff by offering to said attorney one copy of the book declaring that the remaining unsold copies were at hand and at the disposal of the plaintiff.’ The master found ‘that this was a good and sufficient tender and that the unsold copies are now constructively in the possession of the plaintiff and at her disposal.’

The plaintiff's objections taken to the findings or rulings of the master to the effect that the tender of the unsold copies was a good tender, that the publication of ‘Further Chronicles of Avonlea’ by the defendant was not an act of literary piracy, that at the time of publication the defendant mistakenly believed it had a right to publish and market the book, and to the further finding that the defendant should be allowed for all expenses of publishing and marketing directly attributable to ‘Further Chronicles of Avonlea,’ are based largely upon her contention, which is not disputed by the defendant, that the title of the plaintiff to her literary property was legal as distinguished from equitable and that she was entitled to legal as well as equitable remedies, citing Levyeau v. Clements, 175 Mass. 376, 56 N. E. 735,50 L. R. A. 397,Baker v. Libbie, 210 Mass. 599, 97 N. E. 109,37 L. R. A. (N. S.) 944, Ann. Cas. 1912D, 551, and 13 C. J. 991; and on the assumption that the defendant stands in the situation of a willful trespasser who knowingly has taken the tangible property of another and has increased its value by a change in its form. Peirce v. Goddard, 22 Pick. 559, 561,33 Am. Dec. 764. The reasoning suggested is that the plaintiff's manuscript and the defendant's paper were united and that the plaintiff is entitled to the product or its value without deduction for the contributing addition of the defendant. The plaintiff recognizes that usually, in equity, the defendant, if innocent, would be allowed some part of the proceeds, and that the money received from the book could be divided, but contends that the defendant here does not come into court with clean hands; that it has acted unconscionably in keeping copies of the plaintiff's stories in 1912 which it ought not to have done, in publishing after notice of the plaintiff's claim of right and prohibition against publishing, in continuing such...