Page:Federal Reporter, 1st Series, Volume 6.djvu/510

 498 FEDERAL REPORTER. �and tendered you, togethej with sworn statement, on the 12th inst., is here at my office, t 'abject to your order. Please call atid recoive the same," Nothing further transpired between Dare and Fosburgh until the latter part of June, 1878, when Fosburgh called on Dare and informed him that he, Fosburgh, had made an agreement with the defendant and Butler, and stated that he did not think they would ever do much with the article. Dare asked him if he would recoive the amount due from him for April, and the amount due for July. He said he would see Dare in a day or two. A day or two after- wards Dare tendered to him the statements for April and July, and the amount due therefor. He read the statement, and said he would call on Dare on July 8th. He did so, and then received the two statements and the two amounts, $45.25 and $283.75. This suit was brought in September, 1878. Fosburgh accepted his royalties from Dare due in October, 1878, and January and April, 1879. The agreement of Fos- burgh with the defendant and Butler was not recorded in the patent-office until November 4, 1878. It does not appear that Dare saw it or a copy of it, or knew its contents, until after this suit was brought. �The defendant contends that the f ailure of Dare to render a statement and make a payment on the first day of April, or within ten days thereafter, worked, ipso facto, a forfeiture of his rights under the agreement, by its terms. �It is quite clear that the first statement and the first pay- ment became due on the first day of April, and that the position taken on the part of the plaintiff, that no statement and no payment became due until the end of the first full quarter year named in the agreement, namely, until July Ist, is not a sound one. �This is not a contest between 'Fosburgh and Dare. Fos- burgh is willing that the agreement between him and Dare should "be regarded as existing. He bas recognized its con- tinuing existence. He ne ver forbade Dare from making articles under the patent, and never took any legal prooeed- ings to enjoin him, from doing so. Nor did Boylston and Butler. Boylston and Butler paid Fosburgh no consideration ��� �