Page:Federal Reporter, 1st Series, Volume 6.djvu/511

 DARE V. BOYLSTON. 49& �in gross for the license to them. It does not appear that Boylston will not be in the same position, if excluded f rom. operating under that license, that he was in before he re- ceived.it. Fosburgh hasaccepted no royalties from him, and it does not appear that he claims any. By his conduct, Fos- burgh has repudiated the validity of his license to Boylston and Butler, andy as against them, could not be heard to assert its validity. Boylston had fuU notice of the existence of the agreement with Dare before he took his license, and an inquiry of Dare -would have shown at once that, Dare did not admit that the agreement between him and Fosburgh was at an end. AU the equities of the case are with the plaintiff and against the defendant. The evidence shows that Dare never had any intention of not paying Fosburgh, and that he was able and willing to do so. Under ail these circum- stances, if Boylston was suing Dare in equity for infringe- ment, the court would regard the license to Dare as in fuU force. The same resuit must be reacbed in this suit. It does not appear that the tijue specioed was cf the essence of the contract. The provision as to the becoming void of the license was a security for the payment of royalties, and a court of equity would declare the license at an end, in a proper case, just as it will refuse to declare it at an end in a case where it would be inequitable to do so. It does not appear that the failure of Dare to actually tender the state- ment and money to Fosburgh before the twelfth of April operated in any manner as an injury to Fosburgh. �The foregoing remarks are made on the view that it was iuCuinbent on Dafe to seek out Fosburgh witliin the ten days from April Ist, and tender him the money and the statement. The agreement was a peculiar one. There would be sixty-six payments and accounts to be made during the life of the patent. . No place was specified where they were to be made. It was an accident that Fosburgh happened to go into Dare's employ. The parties had given no practical construction to the contract, so as it made it reasonable for both to under- stand that a given way of making payment had been agreed on. Under ail the circumstances in evidence it must be held. ��� �