Thompson v. Hubbard Hubbard v. Thompson

Decision Date13 May 1889
Citation9 S.Ct. 710,33 L.Ed. 76,131 U.S. 123
PartiesTHOMPSON v. HUBBARD. 1 HUBBARD v. THOMPSON
CourtU.S. Supreme Court

These are cross-appeals from a decree of the circuit court of the United States for the Eastern district of Missouri. On the 28th of November, 1882, Alfred H. Hubbard, a citizen of Pennsylvania, carrying on business at Philadelphia under the name of Hubbard Bros., filed his bill of complaint in that court against Nathan D. Thompson, a citizen of Missouri, carrying on business at St. Louis under the name of N. D. Thompson & Co. This bill alleges that in 1880 Thompson was the proprietor of a certain book entitled 'Illustrated Stock Doctor and Live Stock Encyclopedia, including Horses, Cattle, Swine, and Poultry, with all the facts concerning the various breeds and their characteristics, Breaking, Training, Sheltering, Buying, Selling, profitable use, and general care; embracing all the diseases to which they are subject, the causes, how to know, and what to do; given in plain, simple language, free from technicalities, but scientifically correct, and with directions that are easily understood, easily applied, and remedies that are within the reach of the people; giving the most recent, approved, and humane methods for the preservation and care of stock, the prevention of disease and restoration of health. Designed for the farmer and stock-owner, by J. Russell Manning, M. D., V. S., with 400 illustrations. Saint Louis, Mo., N. D. Thompson & Co., Publishers, 520, 522, and 524 Pine Street, 1880.' That the book was a compilation, the manuscript of which was owned by Thompson. That Thompson entered it for copyright, in accordance with the provisions of the statute. That he deposited a title-page of it in the office of the librarian of congress, on the 27th of March, 1880, and before its publication. That thereafter, having published the book, he, on the 7th of June, 1880, deposited two copies of it in the office of the librarian of congress, and printed in every copy of it, on the page next after the title-page, a notice of copyright, as prescribed by statute, and thereby became the owner of the copyright. That, on the 30th of March, 1880, Thompson entered into an agreement in writing with Hubbard Bros., a firm composed of Hubbard and one Ayer, carrying on business in Philadelphia, a copy of which instrument, marked 'Exhibit A,' was annexed to the bill, and is set forth in the margin,2 and which was duly recorded in the office of the librarian of congress. That thereafter, and on May 28, 1880, Thompson rendered to Hubbard Bros. a further instrument in writing, in the form of a bill of sale for the book, a copy of which was annexed to the bill and marked 'B,' and was duly recorded in the office of the librarian of congress, and was as follows:

ST. LOUIS, May 3d, 1880.

Messrs. Hubbard Bros., Philadelphia, Pa., bought

of N. D. Thompson & Co.

To complete set electrot. plates, stock

book, copyright, orginals of illustrations,

and stamps for binding same........ $4,000 00

Credit by amount deducted from bills

in April.............................. 500 00

----------

$3,500 00

--------

In consideration of the fulfillment foregoing covenants and agreements, Hubbard Bros. agree to purchase and do hereby purchase, the plates of Manning's Stock Doctor, etc., as before described, paying for same $500 offset present ac.; $1,000 by note at 8 mos.; $1,000 note at 12 mos.; $1,000 by note at 18 mos.; $500 by note at 24 mos.; notes bearing interest at 6 per cent. per annum. They further agree to supply N. D. Thompson all he may order of books from said plates in 500 lots, with his exclusive imprint and copyright mark, at 10 per cent. advance on actual cost of manufacture, also cost of boxing and drayage, on 60 days by N. D. Thompson. They further agree to supply N. D. Thompson their other books and Bibles made for sale through and supplied to their branches, at a discount of 65 per cent. from the retail prices of the same, granting him the exclusive right of sale of close books in Mo., (excepting six counties adjacent to Kansas City,) Ark., Texas, La., that part of Ky. and Tenn. lying west of the Tennessee river, and So. Ill. It is mutually agreed that each party to this contract shall be responsible to the other in the amt. of $1.00 per copy for each copy of exclusive or close books sold in the other's territory by the general agents or canvassing agents of the opposite party; and further, that all applications for agency of close or exclusive books outside the field of either shall be referred to the party having exclusive right of sale, and a charge of 50c. made for each application so referred. It is further agreed that, should N. D. Thompson go out of business, or for any reason cease to prosecute the sale of Manning's Stock Doctor, etc., then the right of sale in his exclusive field shall revert to Hubbard Bros., unless his successor shall prosecute the sale in like manner as he would have done; the field on stock book to be the same as on H. Bros.' books, except the six counties in Missouri adjacent to Kansas City.

HUBBARD BROS.

N. D. THOMPSON.

Plates to be made collateral security for payment of notes.

H. BROS.

That Hubbard Bros. paid Thompson in full for said book, plates, copyright, illustrations, and stamps, the consideration mentioned in said bill of sale, and thereby became the sole owners of said book and of the copyright therein; and thereupon employed many persons in the United States and Canada to sell the book by subscription, giving to them the exclusive right to sell the book within the geographical limits assigned to them respectively, and employed Thompson, among others, as one of their agents to sell the book in a large and valuable territory, within which he had the exclusive privilege of selling the book by subscription, and for that purpose of employing others to assist him. That Hubbard Bros. added to the book, and enlarged and improved it, and caused to be printed and bound a large number of copies, each copy havingp rinted therein a notice of copyright, and expended large sums of money in doing so and in advertising the book in newspapers and by means of circulars and prospectuses. That, in June, 1881, Hubbard became, by purchase from Ayer, the sole proprietor of the book and the copyright of it. That Thompson, in 1881 and 1882, with full knowledge of the premises, compiled, printed, published, and sold, and was continuing to sell and offer for sale, a book entitled 'The American Farmers' Pictorial Cyclopedia of Live Stock, embracing Horses, Cattle, Swine, Sheep and Poultry, including departments on Dogs and Bees; being also a complete stock doctor; combining the effective method of object-teaching with written instruction; giving all the facts concerning the various breeds; characteristics and excellencies of each; best methods of breeding, training, sheltering, stable management, and general care; with specific directions how to buy and how to sell, including careful and illustrated analysis of the points of domestic animals with all the diseases to which they are subject, how to know them, the causes, prevention, and cure, given in plain, simple language, free from technicalities, but scientifically correct, and prescribing remedies readily obtained and easily applied. Designed for the successful and profitable use of the American Farmer and Stock Owner. By Hon. Jonathan Periam, editor 'American Encyclopedia of Agriculture;' editor 'Prairie Farmer;' former editor 'Western Rural;' Member Illinois Department of Agriculture; first Superintendent of Agricultural Illinois Industrial University; Life Member American Pomological Society; author 'History Farmers' Movement;' 'Lessons for Life,' etc., etc.,; and A. H. Baker, V. S., Veterinary Editor 'American Field;' Veterinary Surgeon Illinois Humane Society; Medalist of the Montreal Veterinary College; Member of the Montreal Veterinary Medical Association, etc., etc. With over 700 appropriate engravings. Saint Louis, Mo.: N. D. Thompson & Co., Publishers, 520, 522, and 524 Pine street. 1882;'—and that such book was an infringement on the Manning book; its materials being copied in great part therefrom; the combination and arrangement of them in the two books being similar in all material respects.

The bill prays for an injunction, both preliminary and perpetual, to restrain Thompson from printing, publishing, and selling, or offering for sale, any copies of the Periam and Baker book, and for an account of those published and sold, and for the payment of the damages suffered by Hubbard, and for general relief. An application for a preliminary injunction was denied by the court, but it required Thompson to give a bond in $5,000, to answer any damages that might be adjudged against him, and to keep an account of the books in question which he had sold or should sell. On the 5th of February, 1883, Thompson filed an answer to the bill, in which he admits that he was the owner of the manuscript of the Manning book, and obtained the copyright therefor. It alleges that said Exhibit A was not recorded in the office of the librarian of congress until August 23, 1882; that before March 30, 1880, Hubbard Bros., composed of Hubbard and Ayer, entered into negotiations with Thompson to purchase from him the Manning book, including the copyright thereof which was thereafter to be obtained, the originals of cuts, stamps for binding, and plates for circulars; that on the 30th of March, 1880, Thompson met Hubbard at the Union depot in St. Louis, and there, and on the railroad train while passing, on that day, from St. Louis to East St. Louis, Thompson verbally agreed with Hubbard, for Hubbard Bros., on the basis for the future sale of said book, copyright, originals of cuts, plates, and stamps; that such agreement for the sale, thereafter to be made, was on the terms that Thompson would sell to Hubbard Bros. the plates necessary for printing the books, including the...

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    ...prescribed by Congress.’ " Sony Corp. , 464 U.S. at 431, 104 S.Ct. 774 (internal citation omitted) (quoting Thompson v. Hubbard , 131 U.S. 123, 151, 9 S.Ct. 710, 33 L.Ed. 76 (1889) ). Where Congress sets the range and a jury decides an award within it, courts offer deference to both."A moti......
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