and enter into contracts as if she were unmarried. Rev. St. 1906, §§ 3108-3117, inclusive. It is true the husband is designated as the head of the family and given the right to choose a reasonable place of abode, but, of course, this right exists only while he is sane. When he was placed in the asylum, his wife became the head of the family, the burden of support fell upon her, and the right to choose a place of abode went with it. Haddock v. Haddock, 201 U. S. 562, 571, 583,

26 Sup. Ct. 525, 50 L. Ed. 867.

But it is insisted the court below was without jurisdiction, that the action of the auditor was final and could not be reviewed in a suit to restrain the collection of the taxes thus assessed. We recognize the existence in Ohio of the general rule that the decisions of taxing officers and tribunals charged with the duty of valuing property for taxation are final and conclusive. Wagoner v. Loomis, 37 Ohio St. 571. But this is not a case of valuation. There is no attempt to review the action of the auditor in valuing property. The attempt is to set aside his action in placing certain property on the duplicate for taxation. Mrs. Dudley's credits were taxable in Lawrence county from 1894 to 1899, only in case she was during those years a resident thereof. Rev. St. 1906, § 2735. The dispute as to her residence therefore raised the question of the legality of the taxes assessed by the auditor. It was not the valuation placed upon her credits, but their inclusion, the right to tax them at all, which was assailed. The legality of the levy being involved, it was open to the complainant below to avail herself of the remedy afforded by section 5848 of the Revised Statutes of Ohio. Rev. St. 1906, § 5848; Musser v. Adair, 55 Ohio St. 466, 45 N. E. 903; Hagerty v. Huddleston, 60 Ohio St. 149, 165, 53 N. E. 960; Cummings v. Bank, 101 U. S. 153, 25 L. Ed. 903; Grether v. Wright, 75 Fed. 742, 23 C. C. A. 498.

The judgment is affirmed.

UNITED STATES FIDELITY & GUARANTY CO. v. RICE.

(Circuit Court of Appeals, Eighth Circuit. October 4, 1906.)

PRINCIPAL AND SURETY-BOND OF BUILDING CONTRACTOR-CONDITION PRECEDENT TO LIABILITY OF SURETY.

A provision in a bond given by a contractor for the construction of a building that no liability shall attach to the surety, unless it shall receive notice from the owner of any default on the part of the contractor promptly on knowledge thereof by the owner, and, in any event, not later than 30 days after any such default, and giving the surety in such case the right to assume and complete the contract and to receive any sums then, or which shall become, due thereunder, creates a valid and enforceable condition precedent to the liability of the surety, and it is discharged from any liability by the failure of the owner to notify it of the noncompletion of the building by the date required by the contract within 30 days after such default.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Surety, §§ 304–311.]

In Error to the Circuit Court of the United States for the District of Colorado.

C. A. Ballreich (W. L. Hartman, on the brief), for plaintiff in error. M. G. Saunders (E. E. Hubbell, on the brief), for defendant in error. Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. On June 15, 1901, Rice, the defendant in error, employed one Davis to furnish material and construct in the city of Pueblo a certain brick and frame building, and a contract was entered into between them to that end. The contract, among other things, required the contractor, Davis, to complete the building on or before December 1, 1901, and provided that the owner should pay him for his work and materials used the total sum of $14,465, of which 85 per cent. was payable as the work progressed and the remaining 15 per cent. within 10 days after the building should be completed and accepted by the owner. Simultaneously with the execution of the contract the contractor, as principal, and the United States Fidelity & Guaranty Company, the plaintiff in error, as surety, executed and delivered to Rice, the owner, a bond, in the penal sum of $5,000, indemnifying him against loss or damage which might result from any breach of the contract by the contractor. The obligation of the bond, however, was subject to the following conditions and provisions:

*

**

"First. That no liability shall attach to the surety hereunder unless, in the event of any default on the part of the principal in the performance of any of the terms, covenants or conditions of the said contract, the obligee shall promptly upon knowledge thereof, and in any event not later than thirty days after the occurrence of such default, deliver to the surety at its office in the city of Baltimore, written notice thereof with a statement of the principal facts showing such default and the date thereof. Second. That in case of such default on the part of the principal, the surety shall have the right, if it so desires, to assume and complete or procure the completion of said contract, and in case of such default, the surety shall be subrogated and entitled to all the rights and properties of the principal arising out of the said contract and otherwise, including all securities and indemnities theretofore received by the obligee, and all deferred payments, retained percentages and credits, due to the principal at the time of such default, or to become due thereafter by the terms and dates of the contract."

The contractor failed to perform his contract, and suit was brought against the surety on the bond. One of the defenses interposed by the surety company was that the contractor failed to complete the building on or before December 1, 1901, as required by the contract, and that plaintiff, the owner, failed promptly or within 30 days thereafter to notify it of such failure or default. The record shows that the facts constituting this defense are fully proved. In other words, it was shown that the building was not completed on December 1st as required by the contract, and that no notice of any kind was given by the owner to the surety company of that default as required by the bond. The Circuit Court entertaining the opinion that the time within which notice of default was to be given was not of the essence of the contract submitted the issues to the jury, which returned a verdict on which judgment was entered for the plaintiff below for $3,462.73. Defenses other than that above referred to were interposed by the surety company, and other assignments of error have been urged upon our attention; but, as we are unanimously of opinion that the defense above

referred to was conclusive of the rights of the parties and that the court below erred in not instructing a verdict for the defendant as requested, we find no occasion for considering any other questions.

The parties, by clear and unambiguous language, contracted that no liability should attach to the surety company unless it received notice of any default on the part of the contractor promptly upon knowledge thereof by the owner, and, in any event, not later than 30 days after any such default to the end that it might avail' itself, if it desired, of the opportunities furnished by the bond for protecting itself. We think that stipulation of the contract was as binding upon the owner as the obligation to pay was upon the surety company. It was a most reasonable stipulation. Its purpose was to protect the surety company against the consequences of any default by providing that, on the occasion of any default whatsoever, it might have the opportunity of determining its effect upon its own liability and of acting accordingly. It may well be that if the surety company had been notified promptly, as required by the bond, of the default by the contractor in failing to complete the building by December 1st, it would have assumed the completion of the building, prevented further payments by the owner to the contractor, and at least secured the sum of $2,899.50, which was paid to the contractor after the default, and to that extent have diminished its own liability. However that may be, the parties contracted for no liability on the bond unless such notice should be given. It was not given, and, in our opinion, that fact conclusively exonerates the surety company from liability. The time for giving the notice, at any rate the ultimatum of 30 days after any default, was from the nature of the case intended to be and was of the essence of the contract. Whether the notice should be given before the expiration of 30 days might depend upon the owner's knowledge of an existing default, and whether it was "promptly" given after such knowledge had been acquired might depend on many considerations, and be a debatable question of fact. But obviously the surety company had a purpose in binding the owner to give notice of any default-at the latest within 30 days thereafter. The imposition of that duty upon the owner tended to insure inspection of the work by the owner, prevent indifference on his part concerning its progress, and to afford the surety company an opportunity to protect itself as provided in its bond. That ultimatum was, in our opinion, reasonable and enforceable. But whether it was reasonable or not is of no consequence. The parties were sui juris, capable of making their own contracts and undertook to do so, and whatever they clearly and distinctly agreed upon is binding upon them. This court recently had occasion in National Surety Company v. Long, 60 C. C. A. 623, 125 Fed. 887, to consider and determine the question just discussed, and the conclusion there reached is reinforced and confirmed by further reflection given to the question in this case. On the authority of that case, as well as on the general principles of the law of contracts, we are unable to sustain the judgment rendered in the Circuit Court.

It is accordingly reversed, with directions to grant a new trial.

WRIGHT v. VOCALION ORGAN CO.

(Circuit Court of Appeals, First Circuit. October 31, 1900.)

No. 644.

1. CONTRACTS-VALIDITY-SALE OF FUTURE INVENTIONS.

The rule applied that a contract by an inventor, in consideration of his employment for a term of years at a salary, to assign to his employer a half interest in all inventions made by him during the term, is not contrary to public policy.

2. SPECIFIC PERFORMANCE-POWERS OF COURT-MODIFICATION OF CONTRACT. In decreeing the specific performace of a contract, a court of equity may adapt it to conditions which were not foreseen by the parties when it was made, by requiring the complainant to assent to such modifications and limitations as justice requires in view of such new conditions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 424.]

3. CONTRACTS-CONSTRUCTION-CONTRACT FOR INTEREST IN FUTURE INVENTIONS. Complainant was a corporation engaged in the manufacture of musical instruments, including organs, and defendant was its superintendent of factories and had made certain inventions relating to organs. A new contract was made between them by which, in consideration of an increased salary for a term of five years, it was provided, in clause 2, that a onehalf interest in all improvements or inventions made by defendant during the term "in or relative to organs, both keyed and automatic," should be assigned to complainant, and they should be patented at complainant's cost. By clause 4 it was provided that complainant should have the exclusive right to purchase and use improvements and inventions made by defendant during the term "in self-playing pianos or self-playing devices for playing pianos," on such terms as should be agreed upon. Defendant during the term made and patented certain inventions which were applicable alike to organs and to self-playing pianos. Held, that such inventions were within the contract, and complainant was entitled to an assignment of a half interest therein, or a perpetual license to use the same without further payment, but only in so far as they related to organs, as expressed in the second clause of the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 859.]

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For opinion below, see 137 Fed. 313.

Benjamin Phillips (Alfred H. Hildredth, on the brief), for appellant.

George B. B. Lamb and George D. Beattys (Alexander P. Browne, on the brief), for appellee."

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM, Circuit Judge. This bill was brought in the Circuit Court by the Vocalion Organ Company, a corporation organized under the laws of the state of New Jersey, against Morris S. Wright, a citizen of the state of Massachusetts. The decree was for the complainant, and the respondent below appealed to us. It is somewhat difficult to make a concise statement of the facts; and therefore, for that pur148 F.-14

pose, we adopt that given in various extracts from the opinion of the learned judge of the Circuit Court as follows:

"This suit in equity is brought to compel the defendant to assign to the complainant a one-half interest in certain improvements, inventions, and patents in or relative to organs, in accordance with the terms of a written contract made by the parties on May 15, 1901. The suit is brought also to restrain the defendant, his heirs, executors, administrators, or assigns, from selling or assigning any interest in said inventions, improvements, and patents to any person other than the complainant during the life of the contract.

"At the time of entering into the contract the complainant was engaged in the business of manufacturing and selling musical instruments, including organs, both keyed and automatic. The defendant was the superintendent of the complainant corporation at a salary of $3,600 per year.

"Although only the second and fourth paragraphs of the contract are brought before the court for construction, it is material for certain purposes of the inquiry to examine the whole contract. The contract is as follows: "Agreement made this fifteenth day of May, in the year nineteen hundred and one, between the Vocalion Organ Company, a corporation organized and existing under the laws of the state of New Jersey, transacting business at Worcester, in the county of Worcester, commonwealth of Massachusetts, and in the city of New York, state of New York, party of the first part, and Morris S. Wright of Worcester, aforesaid, party of the second part, witnesseth: ""That for and in consideration of the mutual covenants and other consideration hereinafter expressed the parties hereto covenant and agree as follows: "First. The party of the first part covenants and agrees to employ the party of the second part and does hereby employ the party of the second part, and the party of the second part covenants and agrees to accept and hereby does accept exclusive employment of the party of the first part as superintendent of factories of the party of the first part.

"'Second. The party of the second part covenants and agrees that an undivided one-half part of the whole right, title and interest in and to all inventions or improvements made by him during the term of this agreement, in or relative to organs, both keyed and automatic, shall be the property of the first part, and, immediately upon making any such inventions or improvements, the party of the second part covenants to apply for letters patent of the United States therefor, and for such foreign patents therefor as the party of the first part may desire, and to make, execute and deliver all such applications, specifications, drawings and other documents as may be necessary to obtain such letters patent; and the party of the second part further covenants to execute, acknowledge and deliver to the party of the first part a proper assignment for record of an undivided one-half interest in each such invention and in the letters patent when issued-all, however, at the proper cost and expense of the party of the first part or its successors and assigns. The party of the second part further covenants not to sell or assign his undivided one-half part in and to any of the above-mentioned inventions, improvements and letters patent, which part shall be and remain the exclusive property of the party of the second part, his heirs, executors and administrators, until the expiration of the term of this agreement.

""Third. The party of the second part further covenants and agrees that he will without further consideration than is herein expressed assign and transfer to the party of the first part letters patent of the United States number 509,506 for improvements in reed and pipe organs and will upon request of the party of the first part execute and deliver to the party of the first part a proper assignment of said patent for record.

"Fourth. The party of the second part further covenants and agrees to grant and does hereby grant unto the party of the first part the exclusive right to purchase and use inventions or improvements made by him during the term of this agreement, in self-playing pianos or self-playing devices for playing pianos, upon such terms as to price or royalty and other conditions as may be mutually agreed upon; and the party of the second part further cove nants that he will not sell, assign, transfer or in any way dispose of any