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ment by a plea of license never effectually or authoritatively renounced ; or, if he sues for royalties, of being beaten because there was merely an infringement, if anything.”

As it is within the power of the licensee to make his position clear and definite, every consideration of justice requires that he, not the licensor, should be held accountable for his failure to do so. It is necessary therefore to examine the notice relied upon by the defendants to support the defense in question. The defendant having failed to pay the royalties which accrued subsequent to January, 1903, the plaintiff, in August of that year, instituted action No. 1 against him in the Supreme Court of New York, to recover the royalties which had accrued for the first half of the year 1903, and some sums claimed to be due as royalties for prior years. An amended answer was filed in that action, verified on August 8, 1904. The answer thus interposed is the one relied upon as notice of repudiation in this action. When that case came on for trial, the court held (as appears by the allegations of the seventh and eighth separate defenses in this answer):

"That the evidence offered was insufficient to establish rescission or re pudiation of the contract, and plaintiff recovered judgment against defendant upon the verdict of the jury for royalties under said contract, for the first sis months of 1903, and certain prior royalties."

This judgment was affirmed by the Appellate Division of the Supreme Court, without opinion (Martin v. New Trinidad Lake Asphalt Co., Ltd., 167 App. Div. 927, 152 N. Y. Supp. 1126), and by the Court of Appeals, likewise without opinion (Martin v. New Trinidad Lake Asphalt Co., Ltd., 222 N. Y. 547, 118 N. E. 1067). The answer in that suit was signed by the attorneys for the defendant and verified by one of them. The pertinent allegations thereof, which were “upon information and belief,” were that the patents which were the subject-matter of the license agreement were invalid "for want of invention and patentable novelty," and that because thereof, and "because the method of processes of refining asphalt referred to therein were in general use" by others than the licensor and licensee, the defendant "on or about the 1st day of January, 1903, repudiated all obligation under said contract and refused to pay the royalties provided for therein, and it has not since said date paid any royalties thereunder, or acknowledged its liability to the said Wilkinson & Upham, or to the plaintiff therefor." This, at the best, was but a recital, upon information and belief, by attorneys, retained to defend a lawsuit, of "past events" to support the legal proposition which they advanced. It was in no sense a declaration of the defendant's "future” intentions, either in respect to a continuance of the use of the processes covered by the patent or of the authority-whether by virtue of the license or of the invalidity of the patents—under which it intended to use them, if it did so intend. I am utterly unable to conceive how it could in any sense be considered such a definite and unequivocal notice as is required by the before-stated rule. If its alleged repudiation of all obligations under the contract may be considered as tantamount to a renunciation of the protection of the license, the notice of the repudiation was nothing more than a statement by

the attorneys as to the reason why the royalties for the period covered by the suit had not been paid. For all that appears the plaintiff might readily have understood, as the institution of the subsequent action seems to show that he did, that, if the repudiation referred to in the answer should not be established or held sufficient to justify the defendant in declining to pay the royalties, he would thereafter pay them.

Could the plaintiff, therefore, on such a notice, have safely assumed that he could treat the license agreement at an end and sue the defendant as an infringer? I think not. Any doubt regarding the sufficiency of the notice should be resolved against the defendant, because it was within its exclusive power to make the notice definite and certain. This conclusion makes it unnecessary to consider any of the other reasons advanced by the plantiff in support of the motion to strike out the eighth defense. It seems an all-sufficient answer to the defendant's complaint—that it has been unable up to this time to have the question of the validity of the patents determined, and has been compelled to pay the royalties on what it considers invalid patents, pursuant to a contract, which, because of such alleged invalidity, is without consideration—that it has no one but itself to blame, because it failed to give to the plaintiff the definite and unequivocal notice of repudiation, which the law and justice entitled him to, and which it could have given if it had been so disposed. If notice of repudiation is essential to sustain the seventh defense, as counsel for both parties have apparently, and I think correctly, assumed (Skidmore v. Fahys Watch-Case Co., supra), then it clearly follows that, for the reasons heretofore advanced, the notice set forth in the seventh defense (which is the same as that set up in the eighth defense) was not sufficient. If the defendant was entitled to repudiate the contract because the patented processes were being used by others subsequent to the date of the contract, in the absence of some provision in the contract to the contrary, it should, on principle, be required to give as explicit and definite a notice of repudiation as where its asserted right to repudiate is based on the invalidity of the patent. In both cases, the ground upon which it bases its right to repudiate is a failure of consideration. On the other hand, if the notice of repudiation is not an essential prerequisite of repudiation on the ground of such user, then the striking out of the seventh defense will not harm the defendant, because the same substantive matters, with the exception of the particular notice alleged in the seventh defense, are set forth in the first defense.

[2] But quite apart from the question of notice, the seventh defense fails to set up any matter which would bar the plaintiff's action. It at best merely alleges that others, during certain years, subsequent to the date of the license agreement, were infringing the patents, the exclusive use of which that agreement gave to the defendant. It does not allege, however, that such infringements were with the plaintiff's consent or license. The license agreement (a copy of which is annexed to the complaint) contains no provision that the licensor would protect the licensee from infringements by others. In the ab

sence of such a provision, there was no obligation upon the part of the plaintiff to do so. Martin v. New Trinidad Lake Asphalt Co., Ltd., 182 App. Div. 719, 170 N. Y. Supp. 234; Skidmore v. Fahys Watch-Case Co., 28 App. Div. -94, 50 N. Y. Supp. 1016, 1020 (App. Div. N. Y. Sup. Ct., 1st Dept.); National Rubber Co. v. Boston Shoe Co. (C. C. Mass.) 41 Fed. 48, 50; McKay v. Smith (C. C. Mass.) 39 Fed. 556.

The motion to strike out the seventh and eighth defenses of the second amended answer will be accordingly granted, with costs.

NEUMANN V. MORSE DRY DOCK & REPAIR CO., Inc.

(District Court, E. D. New York. December 18, 1918.) MASTER AND SERVANT 351, 385(17) WORKMEN'S COMPENSATION ACT-AC

CEPTANCE OF COMPENSATION-EFFECT.

Though a stevedore presented a claim and accepted compensation under the state compensation law, held that, as the state Compensation Commission was without jurisdiction, the acceptance of compensation is not a bar to a libel in admiralty; the payments, if made by the employer, being deductible from the recovery, and, if made by the state, to be treat

ed as gratuities. In Admiralty. Libel by Carl F. Neumann against the Morse Dry Dock & Repair Company, Incorporated. On exceptions to answer. Exceptions sustained.

Nathaniel Phillips, of New York City (William Godnick and Louis R. Bick, both of Brooklyn, N. Y., of counsel), for libelant.

Henry C. Hunter, of New York City, for respondent.

CHATFIELD, District Judge. This action is in admiralty for personal injuries to a stevedore, who presented a claim and accepted compensation under the New York Compensation Law (Consol. Laws, c. 67) prior to the decision of the United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. After the decision in that case he began the present action.

The respondent interposed as one defense that the libelant made the application above stated and accepted compensation in full satisfaction of his claim. The libelant now moves to strike out this defense, upon the proposition that the moneys received under the Compensation Law were gratuities, or extrajurisdictional payments. This is opposed by the respondent on the authority of The Fred E. Sander (D. C.) 212 Fed. 545. On this theory it is urged that, although no common-law right of recovery exists, although the injured party must proceed in admiralty, and although the Employers' Liability or Workmen's Compensation Act of the various states gives no additional cause of action or right because of the exclusive admiralty jurisdiction under the United States Constitution (Southern Pac. Co. V. Jensen, supra), nevertheless the injured person may, by acts show

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

255 F.-7

ing an election or voluntary contract to accept compensation under the state law, estop himself, and thereby waive his rights in admiralty. It should be noted that the Sander Case was earlier than the Jensen Case, and that it presents an apparently anomalous situation on the present state of the law.

Thus a contract which could not be enforced, because the law creating it is unconstitutional, and as to which the courts have no jurisdiction, would, without conscious agreement on the part of the injured party, be left as the only protection of that injured party in collecting any future compensation, and valid as a defense to the employer.

It seems more difficult to sustain the authority of the state Compensation Commission in a matter where they have no jurisdiction, and where they would have apparently no right to act outside of their jurisdiction, as an agent for the injured individual, than to hold, as did the Appellate Division of the Third Department, in the case of Sullivan v. Hudson Navigation Co. (and other cases) 182 App. Div. 152, 169 N. Y. Supp. 645, that the payments received by the injured party were paid under a mistake of law and that the state Commission had no authority at all in the matter.

If this money was paid under mistake of law, there would seem to be no reason for holding that the libelant's right to sue in admiralty had been lost, nor to hold that the libelant must as a condition precedent restore the money paid before suing to recover in admiralty. The case is not one of rescission of contract with a tender of consideration received. Drobney v. Lukens Iron & Steel Co., 204 Fed. 11, 122 C. C. A. 325.

It is, however, a situation where the money paid under the Compensation Law was on account of the injuries, and in so far as this money came from or belonged to the employer it should be treated as a payment on account, and would, of course, be deductible from the ultimate recovery, if there be any. In so far as these moneyş came from the funds of the state of New York, or were in the nature of a gratuity, the libelant would be entitled to keep them as against his employer. Those questions can be disposed of at the trial.

In the meantime the exceptions to the answer will be sustained.

UNITED STATES V. GRAY.

(District Court, E. D. New York. June 25, 1918.) BANKRUPTCY 486—OFFENSES-FALSE OATH,

A bankrupt, who on examination in a bankruptcy proceeding, in answer to a question requiring a statement of assets, willfully fails to state all of such assets, is guilty of making a false oath and punishable under

Bankr. Act July 1, 1898, c. 541, § 29b (2), 30 Stat. 554 (Comp. St. & 9613). Criminal prosecution by the United States against Malvina Gray. On motion to set aside verdict. Denied.

Melville J. France, U. S. Atty., of Brooklyn, for the United States.
Robert H. Elder, of New York City, for defendant.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

GARVIN, District Judge. Defendant has been convicted of willfully and corruptly swearing falsely before a special commissioner in a bankruptcy proceeding, and now moves to set aside the verdict and for a new trial, claiming that perjury 'has not been proved. In my opinion, when the witness undertook to answer a question by which it was sought to ascertain what other places she had, and when she failed to state those places, such failure was equivalent to swearing to a statement of assets which was incomplete. The latter is perjury. United States v. Nihols, 4 McLean, 23, Fed. Cas. No. 15,880.

Motion to set aside verdict denied.

COMMERCIAL CABLE CO. v. BURLESON et al. *

COMMERCIAL PACIFIC CABLE CO. V. SAME.

(District Court, S. D. New York. January 10, 1919.) 1. TELEGRAPHS AND TELEPHONES O264 [New, vol. 7A Key-No. Series]-As

SUMPTION OF CONTROL OF CABLES BY GOVERNMENT-LEGALITY.

Under Joint Resolution July 16, 1918 (Comp. St. 1918, Append. 8 311534x), authorizing the President during the continuance of the war, “whenever he shall deem it necessary for the national security or defense,” to take possession and control of marine cables, the determination by the Presi

dent that such necessity exists is not subject to judicial review. 2. TELEGRAPHS AND TELEPHONES w26% [New, vol. 7A Key-No. Series]—As

SUMPTION OF CONTROL BY GOVERNMENT-LEGALITY,

Joint Resolution July 16, 1918 (Comp. St. 1918, Append. § 311534x), authorizing the President during the continuance of the war to take possession and control of telegraphs and marine cables, is within the constitutional powers of Congress, is not unconstitutional because compensation for their use is deferred and to be fixed initially by the President, and was an appropriate war measure, as placing in the President's control as chief executive and head of the army and navy an essential instrumentality both for military and naval operations and in negotiation of a

peace treaty. 3. WAB 33—CONCLUSION—"ARMISTICE."

An “armistice” is merely a suspension of military operations, and has no effect to terminate the war.

In Equity. Suits by the Commercial Cable Company and Commercial Pacific Cable Company against Albert S. Burleson and Newcomb Carlton. On motions to dismiss bills. Motions sustained.

These cases arise on motions to dismiss two bills in equity for lack of jurisdiction and for want of equity, and they therefore present cases based altogether upon the allegations contained in them. Each bill was similar, and the consideration of one may be taken as applicable to both. They prayed an injunction against the defendants from interfering with the plaintiffs' property or business of which they had claimed to take possession.

The Commercial Cable Company's bill alleges that it was a corporation of the state of New York, doing business in the city of New York, and engaged in the operation of a system of submarine cables in the Atlantic Ocean to Canada, Newfoundland, the Azores, United Kingdom, and France; that on the 16th of July, 1918, the Congress of the United States by joint resolution (Comp. St, 1918, Append. $ 311534x) authorized the President during the conFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*Reversed 250 U. S. 360, 39 Sup. Ct. 512, 63 L. Ed.

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