McLean Air Pump & Machine Co. v. Peters

25 Misc. 723, 55 N.Y.S. 1143

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1899
• Status: Published

Opinion

Beekman, P. J.

We think that the plain meaning of the written agreement upon which suit is brought is that the payment of the minimum royalty of $25 a month was not to commence until the patent had been actually issued. Prior to that time the defendants were bound to pay only a percentage upon sales actually made. The agreement with respect to the payment of the minimum royalty, as it is called, is in terms conditioned upon the manufacture and sale by the defendants of the patented article after the issuing of the patent. Nor is there any occasion for an effort to put any other construction upon the instrument, as the stipulation in question was a reasonable one, inasmuch as the granting of the patent tended to increase the commercial value of the invention, and, therefore, a larger measure of return from it might legitimately he expected. The court below, therefore, erred in holding that such minimum royalties were payable from the date of the contract between the parties.

The judgment in favor of the plaintiff must, therefore, he reversed. ! ! I

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.