214 Mass. 507 | Mass. | 1913
The question on which the decision in this case depends is this: In case a reporter on a newspaper in the course or by reason of his employment learns that the premises on which the business of publishing the paper is conducted are of peculiar value to his employer or one carrying on his business, has he the right without his employer’s knowledge to take a lease of the premises and hold them as his own to the injury of his employer’s property ?
The case comes before us on a report without the evidence. The statement in the report of the facts of the case is in one or more material points somewhat meagre.
The material facts stated in the report were in substance as follows: The defendant Enwright, hereinafter called the defendant, was a reporter on a daily newspaper published in Lynn, which was mortgaged to the plaintiff trust company to secure an issue of bonds, the amount of which is not stated. The business of making up and printing the newspaper was carried on in two stories and in the basement of a building in Lynn, of which two stories and basement the Lynn Publishing Company (the mortgagor) was a tenant at will. The printing press of the Publishing Company was “ situated in the basement upon a foundation of concrete, embedded in the earth underneath the building, and could not be removed from said basement and set up in some other place in less than two weeks’ time, and at a very considerable expense. While the press was being taken down and being set5 up in another place the paper could not be published unless it made arrangements for its printing from some other press, and it appeared in evidence that no press was in Lynn that could be used for that purpose in connection with the electrotyping plant of the company except after expensive alterations in the electrotyping plant.” “Outside of its machinery, type, fixtures and furniture, it depended for the value of its property on the good will of the business, and upon the ability to get out its paper daily.”
The defendant had been employed as a reporter by the mortgagor for a period not stated. Hé did not devote his whole time to the business and was paid “ at the rate of five to seven dollars a week for such services as he rendered in gathering and reporting news.” When the plaintiff trust company took possession on October 3, 1911, it continued to employ the defendant as a reporter. “About” that time the defendant applied to one Porter for a lease of the premises in which the business of publishing was conducted by his employer. Porter told him that he was the lessor of the second story only, and that the International Trust Company was the lessor of the first floor and the basement. Porter refused to give the defendant a lease of the second story, the premises owned by him. Thereupon, on October 4, 1911, the defendant applied to the agent of the trust company for a lease of the first floor and basement, telling the agent “that he represented parties who were going to take over the paper.” “A few days later” a written lease from October 2 (October 1 being a Sunday) was delivered to the defendant for a term not stated, and on October 31 the defendant gave the plaintiff notice to quit on the following Friday, which was November 3.
The findings already stated establish the peculiar value which these premises had to the defendant’s employer or to any one carrying on the employer’s business of publishing this newspaper. And it is evident from the facts found by the judge who heard the case in the Superior Court that the defendant realized that. It is found that “during the summer after the interest had been defaulted, the defendant went to various bondholders and endeavored to buy their bonds,” and that “he offered them fifty cents upon the dollar therefor,” and that “after obtaining the lease he went to various bondholders and offered them twenty-five cents on the dollar” for the same bonds. It further is found that “he stated to various persons that the person who had
It is not found directly as a fact, but it is the fair inference to be drawn from the facts found, that the defendant learned in the course or by reason of his employment of the peculiar value which these premises had for his employer. It was found directly (in effect) that knowledge of the fact that his employer was in arrears in the payment of rent came to the defendant by reason of his employment. That fact, however, is a fact of secondary-importance.
The doctrine invoked by the plaintiff in this suit had its origin in two decisions by Lord Eldon. In Yovatt v. Winyard, 1 Jac. & W. 394, the defendant (formerly employed as a clerk by the plaintiff, who was a veterinary surgeon) was enjoined from using medicines compounded from the plaintiff’s recipes which he (the defendant) had surreptitiously copied while in the plaintiff’s employ. In Abernethy v. Hutchinson, 3 L. J. (O. S.) c. 209, the publication in the Lancet of lectures on surgery delivered by the plaintiff at St. Bartholomew’s Hospital, which the defendants had obtained from the students attending the lectures, was enjoined. The ground on which Lord Eldon went in this case was subsequently stated by Turner, V. C., in these words: “I well remember that upon the first argument he refused to grant the injunction on the ground of copyright, Mr. Abernethy not being able to swear that the whole lecture was written; but that afterwards, on a second argument, he granted it on the ground of breach of confidence.” See Turner, V. C., in Morison v. Moat, 9 Hare, 241, 257.
Since then the doctrine has been applied in England in a number of cases. In Morison v. Moat, 9 Hare, 241, the defendant was enjoined from using a secret formula for compounding a medicine which had been disclosed,to him, in violation of a contract made with the originator of the formula. In Tuck & Sons v. Priester, 19 Q. B. D. 629, the defendant, who had been employed by the plaintiff to print two thousand copies of a picture belonging to him, was enjoined from selling further copies of it which he had taken surreptitiously. In Pollard v. Photographic Co. 40 Ch. D.
This doctrine was applied by this court in Peabody v. Norfolk, 98 Mass. 452. In that case the plaintiff, having invented a process of manufacturing gunny cloth from jute butts, had built a factory where gunny cloth had been so manufactured. The defendant Norfolk had been employed by him as an engineer in his factory, and had agreed not to disclose to others the con
There are two cases, one in California and the other in Illinois, which have gone as far in the application of this doctrine as we are asked to go in the case at bar. In Gower v. Andrew, 59 Cal. 119, the defendant, a clerk employed by the plaintiffs, who were warehousemen, secured a lease of the warehouse in which the business was conducted, behind his employers’ backs by telling the owner of it that the “plaintiffs would probably give up the warehouse,” and offering an advance of $50 a month in the rent. The defendant then began soliciting custom for himself as the successor of his employers. On this becoming known he was discharged by his employers and was ordered by the court to assign the lease to the plaintiffs. In Davis v. Hamlin, 108 Ill. 39, Davis, who was the defendant in the court below, was hired by Hamlin, the lessee of one of four important theatres in Chicago, as his business manager. A year and three months before Hamlin’s lease expired Davis behind Hamlin’s back secured for himself a lease (to begin on the expiration of Hamlin’s lease) by giving $4,500 more rent a year. It appeared in evidence that Hamlin had built up a good will in connection with his theatre by ten years’ occupancy. Davis was directed to hold the lease which he had secured as trustee for Hamlin.
The defendant has argued that he was not within this rule because the duty of securing a lease was not entrusted by his employer to him. The same contention was the main argument put forward in Davis v. Hamlin, and was true of the clerk in Gower v. Andrew. The complaint against the defendant is that he has made use of information which has come to him in his employment to the detriment of his employer. In our opinion that is enough to entitle the employer to equitable relief.
We find nothing in the cases cited by the defendant which calls for notice. There is one case not cited by the defendant which requires a word of explanation. We refer to Clark v.
The bill, which was originally filed by the trustee named in the mortgage, is now being prosecuted, by leave of court, in its name by the bondholders who bought in the property at the foreclosure sale. The foreclosure sale was had after the hearing in the Superior Court, but before the case was reported to this court. The defendant originally objected to this, but the objection has not been argued on the brief or at the bar, and we treat it as waived.
A decree for the plaintiff on these terms must be settled in the Superior Court.
So ordered.