Moore v. Rugg.

Collins, J. The complaint in this action is not a model, as is admitted by the attorney who drew it, but it appears therefrom that defendant, a photographer, had been employed to make, and had *29 made and sold to plaintiff, a number of photographic portraits of herself; and that subsequently, without the order or consent.of plaintiff, he made and delivered to a detective another of these photographs, who used it in a manner particularly stated in the pleading, and claimed to have been highly improper. In justice to defendant, it is right that we should here remark that it is nowhere averred in the complaint that the occupation of the detective was known to him, or that he knew that the photograph so delivered was to be used in the manner stated in the complaint, or in any other improper way. This action was brought to recover damages, and this appeal is from an order overruling a general demurrer to the complaint. A good cause of action was therein stated, for which nominal damages,, at least, may be recovered. The object for which the defendant was ■employed and paid was to make and furnish the plaintiff with a certain number of photographs of herself. To do this a negative was taken upon glass, and from this negative the photographs ordered were printed. An almost unlimited number might also be printed from, the negative, but the contract between plaintiff and defendant included, by implication, an agreement that the negative for which plaintiff sat should only be used for the printing of such portraits as she might order or authorize. Pollard v. Photographic Co., 40 Ch. Div. 345. The complaint shows that there was a breach of this implied contract. Order affirmed.