Page:Federal Reporter, 1st Series, Volume 6.djvu/507

 DARB ». BOILSTON. 495 �forth the numLer of said articles made, and the number sold by or on behalf of, or with the consent of, Dare, during the three months preceding each of said accounts and dates of payment. Dare also agreed thereby to keep proper books of account of the manufacture and sale, and to use bis best endeavors to introduce the article into the market, and make it known to the public, and create a demand for it. Fosburgh agreed thereby to execute the necessary papers for re-issuing the patent, if, and as soon as, Dare should desire such re- issue; the expense of the re-issue, if not more than $60, to be deducted from the royalty that might be due to Fosburgh after the re-issue. It was further thereby agreed by Dare that "if he should f ail to well and truly make the payments above referred to, or to execute or fulfil any of the other conditions hereinabove contained, then and in that case this agreement and license shall become nuU and void." �Application for a re-issue of the patent was made January 18, 1878, on a specification signed by Fosburgh January T> 1878, and a re-issue was granted to Fosburgh, No; 8,074, February 5, 1878. The plaintifE now brings suit against the defendant on the re-issue, alleging infringement. The answer sets up that any right granted to the plaintiff became null and Toid before this suit was brought, because the grant was made subject to conditions which have not been fulfilled by the plaintiff, and that the defendant has acquired, by an instrument in writing from Fosburgh, made April 7, 1878, the right to make and use and sell articles containing said invention. �The plaintiff was and is a inanufacturer of children'a car- riages, having an office in the lower part of the city of New York, and a faetory in a distant part of said city. Imme- diately after the execution of the instrument of January 7, 1878, Fosburgh entered the employment of the plaintiff at his factory as a painter. The plaintiff, priorto April 1, 1878, employed the patented invention to such an estent that on that day there was due to Fosburgh, as royalty, under said instru- ment, $105.25, less $60 expenses of the re-issue, leaving a ��� �