Root v. Borst

We are satisfied that the paper read by Dr. Peters before the National Academy of Science, and the letters addressed to him by Professor Hall were erroneously admitted in evidence, and that the vital question on this appeal

The form of the action was in the nature of a replevin, and the plaintiff Peters sought to recover possession of a manuscript catalogue of stars, the ownership of which he claimed. That manuscript was the work of the defendant and his two sisters, written upon paper prepared and paid for by him, steadily and continually kept and retained in his own possession, and which must be deemed to be his unless Peters has in some manner established a title to it in himself. The burden rests on him to show the acquisition of such a title, and any doubt about it must go to the benefit of the defendant.

The proof shows that Peters in his lifetime was director of the Litchfield Observatory at Hamilton College. He taught the class in astronomy and received from the college a salary of fifteen hundred dollars, which was provided by the endowment of Mr. Litchfield, and which the college was unable to increase. The director’s position was quite different from that of an ordinary professor. Beyond his work as a teacher he was expected to make original observations and investigations, to be published with the aid of the patron of the observatory or of other interested or generous friends, and so build up and broaden its scientific reputation. And since the college was financially unable to pay him anything approaching a reasonable salary, it may easily be inferred that the director would be allowed and expected to do for himself much work of his own for which he would not be accountable to the college, and which he could use or dispose of as he pleased. Such work Dr. Peters did. He gives us a description of it. Before coming to Clinton he began to make a collection of the positions of stars not on the general catalogues, but noted by different observers who had selected them out from that faint and unobtrusive swarm not enrolled in any advertised galaxy. His collection was not a catalogue fitted for publication, but a,

The defendant graduated in 1881 and went into the observatory as an assistant. The exact character of his relation to the director and to the college is somewhat ambiguous and open to different inferences. He was appointed by the director and not by the college authorities, and seems not to have been regarded as a member of the faculty, and yet taught the classes in astronomy in the absence of' the director with the explicit assent of the trustees. Peters regarded him as his servant, and looked upon everything done by the assistant as done for him personally and appurtenant to his interest and reputation : and yet it is obvious that the employment of an assistant originated with Mr. Litchfield who suggested it and promised to pay the necessary expense, acting in behalf of the college, assuming its appropriate burden, and notifying its treasurer of his purpose to pay the salary. He did pay it during his lifetime, although it was done through Peters, and to some extent, if not fully, the same payment was made after Mr. Litchfield’s death by his son. It is quite probable that out of his own small salary, little more than enough to ward off starvation, Peters would have been very unlikely to have devoted one-third to the employment of an assistant. And yet it is very certain that Peters regarded Borst as his personal servant, and that the latter in the beginning drew no line of distinction between his work for the director personally and that which he did for him as one of the college faculty.

But, as Peters had liberty to use his own time for his own purposes, so far as it was not absorbed by his collegiate duties, so also Borst was free to use for himself the hours not due to the service which he owed Peters, and which belonged to himself alone : and this right, and the existence of such hours Peters recognized, because he advised Borst to do some valuable work for his own benefit and reputation. The star catalogue in controversy was beyond a doubt the product of those otherwise unoccupied hours which belonged to Borst personally and not at all to the college or to Peters ; and the latter can have no title to it unless he can show an agreement that it should be prepared for him and become and he his property. For it is clear that he got no title to it by any work that he did upon it. His own loose collections may have helped somewhat, and his advice and suggestions more, but what he in fact did upon it was almost trifling, and is described by Professor Hall as adding little to the value of the manuscript: and the few emendations that he made and the faint show of, interest in it which he displayed until he claimed title to it is entirely consistent with the ownership of Borst to which the latter testified.

- There was no misunderstanding between the two for about three years. But in November of 1884 Peters testifies that he formed the purpose of using his loose material, already gathered in two volumes, for framing a star catalogue, scientifically arranged in the order of right ascension, and reduced to a common epoch, and set Borst at that work, who accepted the duty. The director is sure of the date, but upon the vital question of what he then said to Borst, or the latter said to him, he is unable to repeat a single word. The burden was on him to prove such an agreement; it was the decisive fact through which only he could derive a title; and yet he is unable to repeat a single phrase of the conversation. He

The defendant denies any such agreement and shows that he had already, at this alleged date, been busy for six months upon the star catalogue, and produces the papers indicatmg that fact. He tells us how he came to do it; that it grew from the suggestion of Peters himself, who advised him to undertake some special work out of Avhicli he might obtain personal reputation and scientific position, and who volunteered to aid and assist him in the preparation of the star catalogue which he selected for his own personal work. The director admits having given some such general advice, but ■denies its application to the manuscript in controversy.

At this point the contradictions are violent and cannot be reconciled. It is possible to see that Dr. Peters, regarding the defendant as his servant, in the habit and custom of appropriating Borst’s work as done for him, might be mistaken in his memory and understanding of the facts relating to the star •catalogue, but no such explanation Avill do for Borst. Hot ■only must falsehood be charged upon him, but also a deliberate purpose and plan to take from the director what was his and •deprive him of well-earned reputation. That is a solution of the conflict Avhich should only stand upon clear and strong proof. That Borst, as a mere assistant of Peters, should not •only help him during observatory hours, which we might very well expect, but should devote to his service all time of his own, working late into the night and absorbing every spare moment; that he should bring his two sisters to Clinton and demand of their love for him an enormous amount of labor and patient industry, only to magnify the reputation of Peters,

The plaintiff was permitted to show that Dr. Peters was-present at a meeting of the Academy of Science in Boston and at that meeting read a paper described as “No. 13. Peters, O. H. F. Catalogue of Stars from Various Astronomical Positions,” and was also permitted to read certain letters addressed to him by Professor Hall. Borst had testified that in the summer of 1885 Hall was at the observatory, and was-shown by the defendant the star catalogue here in question that Hall spoke of it as involving a great amount of labor and Borst said it was “ his work,” and he had done it upon the suggestion of Peters that he should attempt some special work of his own; and that this occurred in the presence and hearing of Peters, whose only remark was as to the convenience-of a wide margin to the manuscript. Thereafter Hall was sworn and he corroborated Borst in every particular except, that he was unable to say that Peters was present at the moment of the conversation. On the cross-examination of Hall he was asked if he was present at the meeting of the-academy in 1886 ; if Peters was there; and then if the paper referred to was read; to which he answered in the affirmative, ' the defendant objecting to the production of the pamphlet and to the reading of the paper from it. This evl

The judgment must be reversed and a new trial granted, costs to abide the event.

All concur, except Gray, J., not voting.

Judgment reversed.