the District Court, with instructions to issue the preliminary injunction as prayed for. 2 Cir., 104 F.2d 306. Subsequently, defendants petitioned for writ of certiorari to the United States Supreme Court. This petition was denied October 29, 1939. 308 U.S. 597, 60 S.Ct. 131, 84 L.Ed. 499. Thereafter plaintiff moved for summary judgment. This motion was granted by an order of the District Court dated February 14, 1940, and plaintiff was awarded a permanent injunction. 31 F.Supp. 517. Defendants then appealed to the Circuit Court of Appeals. On the appeal the Court of Appeals ordered the judgment of the Court below modified in accordance with its opinion. 2 Cir., 113 F.2d 627. Meanwhile, the temporary injunction remained in force.
The mandate of the Circuit Court of Appeals was made the judgment of this (District) Court by order dated December 18, 1940 (filed January 2, 1941). It is provided in this order that: “* * the order of this Court, dated February 14, 1940, be, and the same hereby is, modified in accordance with said opinion of said Circuit Court of Appeals by providing therein that the issue as to the execution of the assignment of copyright of Franz Eher Nachfolger G.m.b.H. to the plaintiff, Houghton Mifflin Company is actually and in good faith controverted and that a trial should be had thereon and that all other material facts in the case are without substantial controversy.”
The single issue presented, therefore, for determination upon the present trial is as to the execution of the assignment of copyright from Franz Eher Nachfolger G.m.b.H. to plaintiff, Houghton Mifflin Company. As stated by the Circuit Court of Appeals, the proof was to be as to “identity of the person who signed it and his authority to act for the German publisher.” 2 Cir., 113 F.2d 627, 628.
Before passing to the immediate question involved, several other matters may properly be noted: (1) the identity of the person who executed the assignment on behalf of plaintiff, Houghton Mifflin Company, and his authority so to act, was conceded upon the trial—there is, therefore, no issue as to this; (2) defendants themselves do not claim any title to these copyrights—they merely challenge plaintiff’s title; (3) the signature “Amann” subscribed immediately following the printed words “Proprietors Frz. Eher Nachf., G.m.b.H.” appearing at the end of the assignment (Pl. Ex. No. 1) is the signature of one Max Amann, of Munich, Germany. (4) As appears of record (S.M. pp. 21, 22, 67, 71) certain evidence offered on behalf of plaintiff was admitted over defendants’ objection. Defendants also moved (S.M. same pages) that this evidence, for the reasons there stated, be stricken. At the time the court withheld decision on this motion. It is here and now overruled. (5) Defendants offered no proof whatsoever. As to this, the record shows (S.M. P. 71) the following: “Mr. Dawson: (Of counsel for plaintiff) The plaintiff rests. Mr. Wittenberg: (Counsel for defendants) The defendant rests.” However, after having rested, defendants moved (S.M. P. 71) “to dismiss the Complaint” for the reasons and upon the grounds appearing in the record. Here again, the Court did not pass on the motion at the time of trial. That motion (to dismiss) is likewise here and now overruled.
As heretofore indicated, the issue presented has two aspects: (1) the identity of the person who signed the assignment, and (2) his authority to act for the German publisher. Plaintiff’s proof was addressed to these specific points. No useful purpose would be served in detailing that evidence here—it is all a matter of record, open to the perusal of anyone interested. For present purposes, it is enough to say that, as disclosed by the record, it was competent, relevant and sufficient. It was adequate on all material matters to sustain the burden placed on plaintiff to establish its case.
Defendants urge that plaintiff has not presented “the best evidence which the case affords” and submit that this (quoting from Tayloe v. Riggs, 1 Pet. 591, 596, 7 L.Ed. 275) “raises a presumption, that, if produced, it might not operate in his [Plaintiff’s] favor.” However, plaintiff was not bound to offer proof according to some standard fixed by defendants nor is there anything to warrant an inference that there was a “withholding” of evidence (the basis of the foregoing quotation from the Tayloe case) upon the part of plaintiff, or in its behalf. The Court of Appeals in its decision (2 Cir., 113 F.2d 627, at page 628) stated that plaintiff “should produce its evidence in the regular way, and submit its witnesses to cross-examination.”
