Page:Federal Reporter, 1st Series, Volume 6.djvu/903

 PUTNAM ». HOLLBNDER. 891 �4. The answer sets up that while the defendant Fritz Hol- lender was carrying on the business of bottling and selling aies, beer, etc., under the name of HoUender & Ce, Emil HoUen- der became a partner yfiih him, under the name of HoUender & Co. ; that Emil HoUender at that time held said agreement of Pebruary 13, 1875; that when Emil HoUender became a member of the firm of HoUender & Co. he put into it, as hia «hare of its capital stock, the right to use the said bottle- stoppers, so granted to him by Hutter, and that the only use by the firm of HoUender & Co. of the patented bottle-stoppers ■was a use by virtue of the said right ; that the said firm of HoUender & Co. thus bas the right to use the patented stop- pers to the estent of 100 gross per year; and that such use bas never been to that extent. �On the thirteenth of February, 1875, Emil HoUender had a bottling business of bis own. He gave it up in April, 1877. October 1, 1877, he made an arrangement with his brother, the defendant Fritz HoUender, whereby the latter was to pay Emil three cents for every 24 stoppera made under the patent, each time the 24 -were used. The business consisted in selling beer and aie in the bottles which had the stoppera, the bottles and the stoppers not being sold, but being returned, and the bottles refiUed and sent out again. �The evidence shows that Emil was not a partner with Fritz in the business. He had nothing at risk in it. His profits or losses did not depend on the risk of the business. Fritz paid him the three cents on every 24 bottles, with- out reference to whether the actual profit was more or less, or anything. The three cents was arrived at by figuring that the profit on every 24 bottles of aie or beer would be isix cents net, and Emil was to have three cents for every 24 bottles sold. But this did not make him a partner. The use of the stoppers was not a use of them by Emil "for his own proper business." It was a subhcense by Emil, which was not authorized by the agreement. In Rubber Co. V. Goodyear, 9 Wall. 788, 799, a person was licensed to use •Gopdyear's invention for a certain purpose, "at his own es- ��� �