Edward Thompson Co. v. Pakulski

Crosby, J. This is an action of contract on an account annexed to recover a balance claimed to be due for books sold and delivered. Aside from two volumes, the books so sold and delivered consisted of the second edition of the American and English Encyclopaedia of Law. The sale was made in,1908, and the defendant admits that he received the books; it also appears that he has made certain payments on the purchase price. The only question presented is whether the defendant is relieved from liability upon his contract by reason of the decision in the case of West Publishing Co. v. Edward Thompson Co. 184 Fed. Rep. 749. The bill of exceptions recites that it was agreed by counsel that this case “was offered and admitted as evidence, from which the court was to consider the facts, findings and decree therein set forth so far as material.” At the trial before a judge of the Superior Court without a jury it further appeared that “the defendant also offered in evidence a certified copy in due form of stipulations, agreement of parties and decree entered in said action of West Publishing Co. v. Edward Thompson Co. in support of his defence of illegality.” The suit brought by the West Publishing Company against the defendant (the plaintiff in this case) arose out of the alleged infringement by the defendant of the plaintiff’s copyright in the printing and sale of the American and English Encyclopaedia of Law, second edition. By reason of the first and second rulings made by the presiding judge, it must be assumed that the books printed and sold by the plaintiff to the defendant were an infringement of the copyrights of the West Publishing Company, and in violation of the copy [99] right laws of the United States. Under the decree entered in the above mentioned case it is recited that the parties “had entered into an agreement of compromise and settlement whereby it was provided that the defendant’s liability for its said infringement . . . shall be discharged and satisfied, the defendant paying costs, and the decree was in accordance with this settlement.” This suit was brought and the agreement referred to was subsequent to the sale to the defendant in this case. The decree above referred to does not expressly mention the contracts entered into by the defendant for the sale of the American and English Encyclopaedia of Law, second edition. The effect of the decree, however, was to compromise and settle all liability of the defendant (the plaintiff in this case) for the infringement. Consumers’ Gas Co. of Danville v. American Electric Construction Co. Ltd. 50 Fed. Rep. 778, 780. As the terms of the stipulations and agreement of parties which were in evidence before the judge of the Superior Court are not before us, we cannot say that under the decree and the other evidence the court was not warranted in finding for the plaintiff. He may have found that the settlement between the parties under the decree and agreements entered into by them gave the Edward Thompson Company the right to have the benefit of contracts for the sale of books previously entered into by it. If so, the West Publishing Company could have been found to have ratified and confirmed such contracts. The defendant in the case at bar has not been disturbed in his physical possession of the books, and in view of the finding of the judge of the Superior Court we see no reason why he should not pay the balance due in accordance with the terms of the contract. See Potterton v. Condit, 218 Mass. 216; Standard Button Fastening Co. v. Harney, 155 Mass. 507; Standard Button Fastening Co. v. Ellis, 159 Mass. 448. It follows that none of the requests which were refused could have been given. Exceptions overruled.