Page:Federal Reporter, 1st Series, Volume 7.djvu/221

 ADAMS V.UBTBOBB. 209 �ture Buch lanterna in St. Louis, and sell them throughout the United States, during the lif e of complainant's patent ; that <Jef eui^ants agreed to pay a specifled royalty ; that the license was upon condition " that if said parties of the second part (defendants) shallfail to keep and perform any of the covenants and agreements herein cbntained, for 10 days after notice in writing_ specifying said default, or shall neglect or refuse to malie returns, or to ilia;ke payments for 20 days after the times' therethi* above specifled, the license herein granted shall beeome null and void.'^and all rights to use any of said impi'bvenients shall befbrfeit!ed,afid"th'e party of theifitst part "(complainant) may treat tliem as infi-ingers for ariy manu- facture iok' sale of said improvements after siich J'otfbit^rc, atid'tliereupon the parties bf the second part shall have iio lurth'er h'ghts or' privileges under this agreement, but shall still remain bound thereby as'to'Kll cove- nants and agreements herein contained, and Shall'Bot tliereby be/dia-i charged from any liability tothepajjtyof the fest part' fqr; anyiicense fees previousiyacorued." The billifurther alleged thatidefendaritfe failed to pay royalty as agreed, and.havc<not Ipaid any royalty sinceliFebmary 14,1880; thatjiupon the failure of defendants to paysaid royalty, com- plainant caused them to be notifled that theicontract ahd 'license would, after the date of the notice, be null and,, void, in consequence, of said breachon the part of defendants; and that defendants, after recejiying said notice, continued to make, vend, etc., improved l^nterns coyered by com- plainant's patent. Whereforp, complainant prayed that defendants be decreed to account for and pay pyer jto him all gain? and profits realized by them from making, using, or vendipg lai>terns having the improve- ments deccribed in his letters patent, and.for damages, and a prelimip.ary and perpetuai in junction. �The defendants in their answer admit, tjje validity pf complaina,nt's patent, and that th|Cy have been llceii^ed as claimed, but deny that there has been any bieach qf ; condition ou their part, or that the said license is not still in force, and allege a breach on the part of complainam.. �Noble e Orrick, for complainant. �Edward J.O'Bnen, for ^eiendant, ,,, �Tbeat, D. J. The case of Hartell,Y. ,Tilghman,'^Q TJ..^. 547, is conelusive of this case, Theplaintiff seeks to charge the defendants as infringers of :the patent,, despiie the con-, tract of license, in consequence pfnpn-comjpliancieiWith its term^, At first itf seemed clear, updfti' the pontract, that the suit was wd|l fpnnded; but a# th^rmajorityr of th^, United States supreme court haye taken i^rfl adverse yiew, nothing remains fqc this court but to dis^l^s^;t^is bill^/andirfiiiuit the plainjiffto'.the remedies iIldica^t€^^^iQ that deoifliou./. �Bill diamissed, without preji^dicft; ; ; n �v.7,no.2— 14 ��� �