148 F. 470 | D. Conn. | 1906
By their stipulation filed July 30, 1906,. which accompanies this memorandum, the parties have agreed upon the essential facts which might have been found and reported by a master, and it becomes the duty of the court to order the issuance of a final decree based upon such facts. The stipulation has been carefully studied, for the purpose of finding what receipts are properly chargeable to the account of the infringement, and what was the actual reasonably necessary cost of producing and disposing of the infringing-copies. Tf the gross receipts exceed such cost, the difference is the amount which the defendant ought to pay. To that extent it would have profited by its wrongdoing. In looking for the gross receipts-we must include the amounts received from advertisers. The stipulated facts put them there; but, beyond that, they belong there on principle. It is true that the advertisements do not, per se, infringe upon the plaintiff’s rights; but they were procured for and placed in a directory which is tainted with bad faith from A t,o Z. The defendant cannot, on any theory of honest dealing known to the court, retain the moneys received therefor. We therefore start with “Gross-receipts, $4,331.33.”
Talcing up the problem of actual cost of the directories from the viewpoint of a reasonable man, we find that 5,000 directories were printed and 1,507 of them were sold. The plaintiff insists that the way to get at the cost is to find what it actually cost, looked at fairly, to produce the entire 5,000 copies, and that the cost of the infringing volumes will be found by the simple mathematical process of dividing the total cost by the fraction I507/5ooo. The trouble with that is this: A certain portion of the expenditures for labor and materials is a fixed charge, which could not materially vary, whether the number of directories produced was ' 5,000' or 1,000. In other words, in many respects it would have cost about as much to produce 1,507 copies as it did to get out the whole 5,000.
Taking up specific items found in the stipulation:
Paragraph 4, subdivision (a) :
*473 'To expenses of compiling, as follows:
To pay-roll for canvassers, verifiers, office help, etc.$2,180 55
To Robert O. Lawson for soliciting advertisements a!nd services on business directory. 219 83
$2,406 38
Subdivision (b) :
To expenses of publishing, as follows:
To Martin Slattery for linotype work done by himself and his assistants.$1,315 82
To National Lead Company for metal for type. 450 45
To A. Pindar & Co. for cuts for advertisements. 43 07
To Dodd Lithographic Company for maps. 65 00
$1,873 84
Here is a total expenditure of $4,880.32, which must have been incurred, no matter what number of copies were to be finally put upon the market. In this line of reasoning, of course, the principle of “do minimis” must be recognized.
The contract with the Plimpton Manufacturing Company provided that they should furnish the stock and perform the work necessary to produce 5,000 bound copies for $2,500, and so, after the preliminary general expense, it cost the defendant an additional 50 cents for each bound copy ready for delivery. Defendant sold 1,507 copies, and is entitled to credit on account of them of $753.50. Adding this amount to the $1,280.32 already found, we have a total of $5,033.82, which is considered the actual reasonably necessary expense incurred by the defendant in the production ready for delivery of the 1,507 infringing copies.
This rough glance at the situation, drawn in free hand, shows that the actual reasonably necessary cost was considerably greater than the gross receipts, and the court is, for that reason, relieved from the necessity of intruding upon the labyrinth which threatens to open up if the other items of claimed expense are analyzed. Since no profit resulted from the infringement, the damages must he fixed at the nominal amount of 6 cents.
Tf counsel for defendant wish to be heard on the question of costs, the court will hold the matter in abeyance for a reasonable time before ordering the entry of a final decree in accordance with this opinion.