Taft v. Smith, Gray & Co.

Seabuby, J.

I concur in the view expressed in the opinion of Mr. Justice Hotchkiss that the proof of demand was sufficient. I do not concur in the view that the evidence of damage is insufficient to sustain the award which the jury made to the plaintiff. The manuscript “ See You ” book, which was the subject of the conversion, had no market or other definite probable value. It was, however, of value to the plaintiff. The fact that the value is speculative or difficult of ascertainment does not preclude a substantial recovery. The law is always adequate to meet difficult situations and in such cases permits proof of collateral matters which tend to throw light upon the value of the thing converted and then leaves to the good judgment of the jury the duty of estimating the sum which will constitute fair compensation.. These collateral matters justify a consideration _ of the nature of the thing itself, whether or not it can b" reproduced and its utility to the owner and, if the value of its use cannot be otherwise determined, the owner may give his estimate of its value to him.

The general rule of damages when property is converted is the value of the thing converted at the time and place of the conversion, with interest. McIntyre v. Whitney, 139 App. Div. 551, affd., 201 N. Y. 526. If the thing converted, has no market value, the actual value to the owner is the just and accepted rule. Lovell v. Shea, 60 N. Y. Super. Ct. 412. Thus, where the action was for the conversion of a solicitor’s docket and papers, containing evidence of bills of costs against certain parties, the measure of damage was held to be the value of the documents to the owner. Doyle v. Eccles, 17 U. C. C. P. 644. The same rule- applies for the conversion of a set of vouchers, accompanied by an affidavit- of their correctness. Drake v. Auerbach, 37 Minn. 505. So, also, where plaintiff sued to recover the value of sheet music which had been, annotated and transposed by the plaintiff’s husband and which the plaintiff had left in the custody of a storage warehouseman, it was held proper “ to allow plaintiff to introduce evidence tending to. show that the sheet music had a special value to her husband because of annotations and. transpositions ’ inscribed thereon by him.” Leoncini v. Post, 13 N. Y. Supp. 8-25. In an action to recover damages for the conversion of a picture, which had no market value, the court refused to disturb a judgment for the plaintiff based on the owner’s estiinate of the value of the article. Frankenstein v. Thomas, 4 Daly, 256. In some cases, this value to the owner may be simply the cost of reproduction, and in such cases the cost of reproduction is the correct measure of damage to be applied. Thus, in an action for the conversion of abstracts of title and searches, the cost of procuring other similar searches is recoverable. Watson v. Cowdrey, 23 Hun, 169. The same rule was applied in an action to recover for the conversion of certain electrotype plates (Heald v. MacGowan, 5 N. Y. Supp. 450) and stereotyped book plates (Lovell v. Shea, 60 N. Y. Super. Ct. 412; 18 N. Y. Supp. 193). When reproduction of the thing converted is not possible and the thing itself is of such a nature that-its value cannot be definitely ascertained, the question of estimating the value to the owner rests necessarily in the discretion of the jury subject to the limitation that their verdict must not be inadequate or excessive.

The plaintiff had a right of property in the “ See You ” manuscript. It was the product of his labor and had never been published, and consequently the right of property existed in it. It was an unpublished manuscript, and, as such, within the protection of the law which recognizes literary property. That law includes within its protection maps, charts, musical compositions, engravings, photographs, paintings, catalogues, trade lists and any other thing of a similar nature regardless of its precise form. After publication the law does not protect the right of an author or compiler except under the copyright law, but before publication the right of the producer is absolute and the protection which the law affords ample. Jeffreys v. Boosey, 4 H. L. Gas. 962; Wheaton & Donaldson v. Peters, 8 Pet. 591, 657; Palmer v. DeWitt, 47 N. Y. 540. The author or compiler of a manuscript has a property right in it. This property right attaches not only to the physical or corporeal substance which composes the manuscript but includes the incorporeal right to the exclusive use of its contents.

In Spicer v. Waters, 65 Barb. 227, the court, after stating the general rule as to damages in conversion, points out that this rule is subject to modification in certain- cases, and says that: “ When the property has no market value, such as paintings, mcmuscripts, etc., the damages are in the discretion of the jury.”

In Press Pub. Co. v. Monroe, 73 Fed. Rep. 196, the plaintiff had written a poem to be delivered at the World’s Columbian Exposition, and before it was published the' defendant obtained a copy of it and published it in its news-' paper. The publication was shown to have been made in wanton disregard of the plaintiff’s rights. The plaintiff recovered a verdict for $5,000, which was affirmed on appeal, the court holding that, although there was no proof of actual damage, exemplary damages might be recovered. In Wood v. Cunard Steamship Co., 192 Fed. Rep. 293, plaintiff sued for the loss of a trunk which contained the manuscript óf a manual on Greek grammar which he had written. He was awarded $5,000 for the loss of the manuscript. On appeal the decree was modified and the court fixed $500 as a fair award for the lost manuscript. In its opinion the court conceded that this assessment of value was “ as a jury’s frequently is, somewhat arbitrary.” The case arose in admiralty and the court itself fixed the value saying: “ The case, in this respect is sui generis, the lost manuscript is unique in its isolation; there is nothing with which to compare it. In these circumstances-, believing that there are certain limits in each direction beyond which we should not go, we deem it for the best interests of the parties that the amount of- the recovery should be fixed without further expense to the litigants, and we fix $500 as a fair • award for the lost manuscript.”

Ho definite standard can be applied in determining the value of a manuscript. Estimating the value of labor and time spent in its production furnishes no sufficient criterion of value.

The plaintiff in this case produced the best proof that the nature of the case was susceptible of. He showed how he.had compiled his manuscript “ See You” book, the use that he made of it, and that his earning power was increased by its use. It also appeared that it could not be reproduced, and that some of his customers actually made purchases from his employers. This was all that he was required to do, and in view of the fact that the manuscript book had no market value and. could not be reproduced, it furnished a sufficient basis to enable the jury to render their verdict. The book contained the names of those who entertained a kind of good-will to the plaintiff and the possession of such a list would, it seems to me, other things being equal, make him a more desirable employee for an employer who dealt with the class represented by the names inscribed in the “ See You ” book.

The award of $500 seems to me to have been fair compensation for the plaintiff’s loss and to have been a judicious estimate of the value of this manuscript to the plaintiff.

For these reasons the judgment should be affirmed, with - costs.

Gerard, J., concurs.