1859.

WEBSTER

v.

NEWSOME.

prejudiced or affected; that, in consideration of the premises, Holden should pay (two sums of 50%.); that Holden, his executors, administrators or assigns, should pay to the plaintiff, his executors, administrators or assigns, as and by way of royalty, the sum of 1d. per pound for each and every pound of metal or alloy which should be made or used under the letters patent by the said H. A. Holden, his executors, administrators or assigns, during the existence of the said letters patent; and for the purpose of ascertaining the amount of alloy made by the said H. A. Holden, he, his executors, &c., would from time to time keep a correct account of alloy manufactured, and allow the plaintiff to have access to the books in which the account should be kept; and that the royalty should be accounted for and paid periodically every six months after the date of the letters patent or from making any of the said alloy. And the parties mutually agreed that they would at all times thereafter, when a necessity should arise, make and sign all further and other deeds, assignments and agreements for more effectually carrying out the arrangement and agreement therein contained. That afterwards, on the 13th of November, 1858, in pursuance of the said agreement, and for the purpose of fully carrying out the terms thereof, by deed, made between the plaintiff of the first part, and H. A. Holden of the second part, the plaintiff assigned the invention and letters patent to Holden, subject to the payment by Holden, his executors, &c., of the royalty of 1d. per pound upon every pound of alloy which should be manufactured by Holden, his executors, &c., by virtue of the letters patent, to be ascertained and paid in manner thereinafter mentioned. And by the said deed Holden covenanted with the plaintiff that he would pay to the plaintiff, during the continuance of the patent, the royalty of 1d. per pound for each pound of alloy which

Holden, his executors, &c., should make and sell by virtue of the invention and letters patent. That afterwards, on the 17th of December, 1858, an agreement was made between the plaintiff and the defendant in the words following:-" Bingley Works, Birmingham, Dec. 17, 1858. Memorandum of agreement made this day between James Webster (the plaintiff) and William Newsome (the defendant). In consideration of 250l. to be paid on Wednesday the 23rd proximo, and a further sum of 250l. on the 23rd of December, 1859, the said William Newsome agrees to purchase the right of the said James Webster in an agreement entered into with H. A. Holden, dated March 14th, 1858 (meaning the agreement hereinbefore first set forth), to receive a royalty of 1d. per pound on the metal sold under the patent specified therein; the second instalment to be paid conditionally on the royalty producing, from the 16th of March, 1858, up to the 23rd of December, 1859, 150%, otherwise the 250l. to be paid on the 23rd proximo to be considered as full purchase money for the said James Webster's right in the aforesaid agreement."-Averment, that though, before suit, plaintiff had done all things, and all things had happened, to entitle him to be paid the 2501 to be paid by the defendant to him on the 23rd proximo, yet no part thereof had been paid.

The plea set out the deed of the 13th of November, 1858. This deed, after reciting the letters patent; that a specification had been filed; that, previous to obtaining the letters patent, the plaintiff had contracted with Holden for the absolute sale to him of the letters patent, &c., Holden paying (inter alia) the sum of 1007., and entering into the covenants thereinafter contained for payment of the royalty of Id. per pound on every pound of the said alloy which he shall manufacture according to the said invention and specification, and shall vend: WITNESSED that the plaintiff

1859.

WEBSTER.

v

NEWSOME.

1859.

WEBSTER

v.

NEWSOME

assigned to Holden, his executors, &c., the invention and letters patent &c.: To hold during the residue of the term, subject to the payment by Holden, his executors, administrators and assigns, of the royalty of 1d. per pound on every pound of alloy manufactured by him, his executors, &c., by virtue of the letters patent &c.; the royalty to be ascertained and paid in manner and at the times hereinafter mentioned. (Then followed covenants by the plaintiff for title and further assurance; and by Holden to manufacture the alloy and continue the manufacture during all the term granted by the letters patent.) And Holden covenanted to pay to the plaintiff, his executors, administrators or assigns, during the continuance of the patent, the royalty of 1d. per pound for each and every pound of alloy which Holden, his executors &c., should make and sell, by virtue of the said invention and letters patent, and to make such payments quarterly in each and every year of the term, viz., on the 24th of June, the 29th of September, the 25th of December, and the 25th of March; the first of such payments to be made on such of the quarterly days as shall happen next after the vending of any of the said alloy. And for the purpose of ascertaining the quantity sold by Holden, Holden covenanted to keep an account of the quantity of alloy made and vended in proper books, of which the plaintiff might take copies. Provided always, that in case Holden, his executors, &c., should at any time during the existence of the letters patent, refuse or neglect to supply to any customer or person desirous to purchase alloy, offering to pay the market price for the same, of which refusal an order unexecuted for the space of thirty days should be conclusive evidence, then it should be lawful for the plaintiff, his executors, &c., to manufacture and vend the alloy, and use, exercise, and vend the invention for his and their own use and benefit absolutely. Provided also,

that if the patent should at any time be repealed by scire facias, thenceforth the royalty covenanted to be paid by Holden to the plaintiff should cease. Averments: that the plaintiff and Holden respectively signed, sealed and delivered the said deed as their deed: that the plaintiff accepted from Holden, with his assent, the deed and the covenant to pay the royalty in the deed mentioned, as and at the times in the deed mentioned in the place and stead of the previous agreement of Holden to pay the royalty in the agreement mentioned, as and at the times in the said agreement mentioned; and, in consideration of Holden. executing the deed, the plaintiff exonerated and discharged Holden, with his assent, from any further performance of the agreement to pay the royalty in the agreement mentioned, as and at the times in the agreement mentioned, and from otherwise performing the agreement: that the agreement between the plaintiff and the defendant was made after the plaintiff had so exonerated Holden, and when the right of the plaintiff in the previous agreement with Holden to receive a royalty of 1d. per pound on the metal sold under the patent had ceased: that the defendant, at the time when he entered into the agreement with the plaintiff, had no knowledge or notice of the deed, or of the exoneration of Holden; and the defendant meant, by the said agreement, to contract for and to purchase the royalty payable under the said agreement between the plaintiff and Holden; and the plaintiff's right under that agreement to have the same paid to him, and not to contract for or to purchase the royalty payable under the deed, or the plaintiff's right under the deed to have the last mentioned royalty paid to him: that the defendant, at the time of the making of the agreement between plaintiff and defendant, had neither knowledge nor notice that, under any state of things,

1859.

WEBSTER

v.

NEWSOME.

1859.

WEBSTER

v.

NEWSOME.

the plaintiff was to be at liberty to manufacture or vend the alloy, or to exercise the invention for his own benefit, as provided by the deed; or that in any event the letters patent might be used otherwise than for the use of Holden alone, according to the agreement between the plaintiff and Holden.

Replication-That before suit the defendant had notice of the deed and of the contents thereof, and did not within a reasonable time repudiate, nor had he at any time before suit repudiated, the agreement with the plaintiff, or given the plaintiff any notice of his intention to repudiate the agreement, and refuse to perform the same. But, on the contrary thereof he was, until after the lapse of the said reasonable time, ready and willing to take the benefit thereof, and of the provisions of the said deed.

The plaintiff also demurred to the plea, and the defendant demurred to the replication.—Joinders in demurrer.

Phipson, for the plaintiff.-The plaintiff agreed to sell to the defendant, and the defendant to buy of the plaintiff, his right to receive a royalty under an agreement dated the 16th of March, 1858. The deed of assignment of the patent set forth in the plea did not put an end to Holden's agreement, but, on the contrary, was a confirmation of it, being made in pursuance of the covenant for further assurance. An agreement which provides for further assurance is not made a nullity by the giving of further assurance. Here the agreement of the 16th of March is still a binding instrument. Substantially the defendant bought a right to receive a royalty. In buying the plaintiff's right, the defendant bought all that was necessary to give the agreement force and effect. The covenants in the deed are not in the same terms as the stipulations of the agreement of the 16th of March. If the deed was accepted in satisfaction or in