Yorston v. Brown

• Decision Date: 01 March 1901
• Citation: 59 N.E. 654,178 Mass. 103
• Parties: YORSTON v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 103

59 N.E. 654

YORSTON v. BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1901

The following facts appeared: On April 25, 1889, the defendant signed the following blank, furnished by the plaintiff:

'The American Library Edition. Much Enlarged and Improved by American Masonic Authorities. The History of Freemasonry. Its Antiquities, Symbols, Constitutions, Customs, etc Derived from Official Records Throughout the World by Robert Freke Gould, Past Senior Grand Deacon of England Josiah H. Drummond, Enoch T. Carson T. S. Parvin, and Others. Superbly Illustrated. With Portraits of American and European Masonic Celebrities, Engravings of Masonic Marks, Medals, Fac-similes, Architecture, Curiosities Events, etc.

'Mansfield, Ohio, April 25, 1889.

'To J. C. Yorston & Co., Publishers, New York, Cincinnati, and Chicago--Gentlemen. Please to execute for me a steel-plate engraving from photograph furnished of myself, for which I agree to pay to you or your order the sum of three hundred dollars upon the delivery to me of fifteen India-proof impressions from the plate; and I authorize you to copyright, print, and insert the number of impressions required in the Portrait Gallery and Biographical Volume of the above-named work, after which the plate is to be delivered to me. I also hereby acknowledge the receipt of a duplicate copy of these conditions and order. No other agreement, written or verbal, will be recognized by publishers, subscriber, or agent, unless indorsed on this order.

'Name: Huntington Brown.

'Business: Miller.

'Address: Mansfield, Ohio.

'The above impressions are to be delivered by express, C. O. D., or otherwise.'

At the trial it was agreed that in pursuance of this contract the plaintiff executed for the defendant a steel-plate engraving from a photograph of the defendant furnished by the defendant, and delivered to the defendant 15 India-proof impressions from the plate. The plate was never delivered to the defendant, and is still in the plaintiff's possession. The plaintiff contends that he holds the said plate because he is not through using the same for the purpose of new editions of the work in which the plaintiff's portrait was published. The portrait and biography of the defendant were not published in Gould's History of Freemasonry, which was a work complete in four volumes, entitled 'The History of Freemasonry, its Antiquities, Symbols, Constitutions, Customs, etc., Derived from Official Sources Throughout the World,' by Robert Freke Gould, past senior grand deacon of England, etc. The plaintiff testified that they were published in a volume which the plaintiff claims was the Portrait Gallery and Biographical Volume of that work, but in the title of this book there was no reference to Gould's History of Freemasonry. The defendant, on this point, in answer to interrogatories of his counsel, deposed as follows: 'The plaintiff further failed to comply with the order in which they agreed to copyright, print, and insert the number of impressions required in the Portrait Gallery and Biographical Volume of Gould's History of Freemasonry, and, as per their advertisement, in a leaflet which I attach, marked 'Exhibit B,' under the title 'List of Brethren' whose portraits have already been engraved and are being engraved to appear in Gould's History of Freemasonry, under which title a list of names is printed among which are the names of William J. Acker, of Cleveland, Ohio, Brenton D. Babcock, and others, including my own name. That this volume was published, and the portraits and biographies of the above-named parties from Cleveland, and others, on the list, were printed, but that the portrait and biographical sketch of myself was not and is not in this last volume of Gould's History of Freemasonry. I have this book. And that I never have seen a book of any nature published by the plaintiff wherein my portrait and biography appear, nor did I give them an order for it to appear in any other publication by them but volume 4 of Gould's History of Freemasonry.' The leaflet, Exhibit B, referred to by the defendant, is as follows: ...