Page:Federal Reporter, 1st Series, Volume 6.djvu/508

 496 FEDEBAli BEPOBTEB. �balance of $e5.25. Meantime the plaintiff had advanced the money necessary to obtain the re-issue, and had advertised the invention, and procured engravings of it for advertising. The plaintiff testifies that on the morning of April 2, 1878, he saw Fosburgh, as usual, and told him that his account was made up and ready for him down town. The plaintiff says : "He asked me how much there was due him, and I told him that I really eould not tell, as I had not stopped to figure." Fosburgh testifies as follows : "On the second of April, Mr. Dare said that ' he supposed the royalty was due on the first of the month, and I think we owe you something. I haven't figured it up yet, and don't know how much it is;' or words to that effect. * » * i asked him if he had sublicensed any parties. He said he had not; that the carriage dealers were ail throwing cold water on the patent. That's about ail." Fosburgh denies that Dare told him, on the second of April, that the statement was ready for him. Fosburgh continued to work at the factory until and including April 9th. On April lOth he did not go to the factory. He absented himself on that day and on the llth, without having given notice that he would not return. On the llth he went to the place of busi- ness of the defendant, and there announced to him, or to Jay F. Butler, or to both, that his contract with Dare was broken. He saw the defendant and Butler again on the 12th, and went with Butler on that day to a lawyer, Mr. Meyer, and submit- ted to him the agreement with Dare, for advice as to whether it had become void. On the 15th, Fosburgh, the defendant, and Butler went to Meyer's office, and received the advice that the contract with Dare had become void. Then, on the seventeenth of April, Fosburgh and the defendant and But- ler executed an agreement, whereby Fosburgh granted to the defendant and Butler the exclusive right to make, use, and sell articles containing the invention covered by said re-issued patent for its whole term, and to grant sublicenses, they to pay him a specified royalty. The instrument recites the fact that an agreement, dated January 7, 1878, had been made between Dare and Fosburgh, and that it "is now supposed by ��� �