Page:Federal Reporter, 1st Series, Volume 6.djvu/509

 DAEB ». BOYIiSTON. 497 �the parties hereto to be null and void," and the grantees agree to pay ail the expense of any soits that may be brought against Fosburgh growing out of said agreement, provided they be allowed to employ such lawyers as they may select. �There was no communication between Dare and Fosburgh from the second of April until the twelfth of April. On the latter day Fosburgh went to Dare's factory. This is Dare'e testimony : "As I was going in the office, I met Mr. Fosburgh coming out. I asked him why he was not at work. He said he was not working ; he was going down town. I asked him if he would call at the store and get the amount due him, or if I would bring it to the factory for him. He said he guessed not ; that the time had passed at which he should receive his royalty, and that the contract was no longer good, and that he did not intend to go to work for me again. I told him it made no difference about his working ; that the contract was another thing, and was as good as it ever was ; that it was his fault that he did not have his money, not mine ; that I had given him notice that it was ready for him ; that my time and attention had been so much occupied that I had not thought to bring it to him. He then started to go out of the office, and I again asked him if he would not call at the store and get the amount due him. He said that he didn't know that he would ; that he had taken legal advice, and that they told him that the agreement was no longer in force." The same evening Dare tendered to Fosburgh $45.25, and an ac- count, sworn to that day, of articles made and sold under said agreement, from January 7th to April Ist. As a memorandum of what transpired, the parties then signed this written state- ment on the back of the account: "He refuses to accept it to-night, 11 p. M., April 12, '78; does not say or will not say what he will do to-morrow." The next moming the parties met again, and Dare renewed the tender, but Fosburgh de- clined to accept the money. On the fifteenth of April, Dare sent to Fosburgh a letter, which he received either that day or the next day, saying: "The amount of royalty due you to Ist inst., ($45.25,) of which I advised you on the 2d inst., �v.6,no.5— 32 ��� �