The plaintiff’s claim for the thirty dollars a week royalty lias been met by three separate defenses, only two of which, however, were seriously urged upon the trial or upon this appeal. One of 'these was,, that the plaintiff’s assignor failed to devote his time and •attention ’ fo the best of his. ability to the welfare of the enterprise :as superintendent of Construction and salesman, and acted in an improper manner, in consequence of which the company was compelled to and did discharge him from its employ sometime prior to March, 1892; and the other, that he rescinded the contract between the company and himself, and voluntarily withdrew from any connection with the company, and refused to perform the covenants and conditions of the agreement. The learned trial judge having directed a verdict for the plaintiff, the questions upon this'appeal are narrowed down to a consideration. as to whether or not .there was sufficient evidence proper to be submitted to the jury in support of either of these defenses. . ' -
"We have observed that under the agreement Creamer Was to act as superintendent or salesman “ if requested so to do ” by the company, so- long, as his guaranteed royalty was promptly paid. There. is.no evidence that he did not act when requested as.superintendent or salesman until after the company had failed in its1 duty to make prompt payment of his guaranteed royalties. At the time the company took ifrom him the keys of the establishment and refused to allow him to have anything further to do with the work, he had been unpaid for over seven weeks, And, assuming that Creamer was guilty; of the improper conduct of which he was accused, the company could not avoid the payment of the weekly royalty by discharging, him from its employ. Creamer was not an ordinary employee upon a weekly wage. By the contract between him and the company, he licensed the company to make and sell .his patented machines during the whole lifetime and term of the patents, and it agreed to pjay him one-fifth of the profits, or not less than $2,000 a ■year, the $30 a week being on account thereof. If the company desired;, it could cancel the agreement on one day only in any year, and that the first day of June; and if it permitted that day to go by, it was deemed to have waived the right to cancel the agreement before the first of June of the succeeding year. The company *355could not turn him adrift whenever it conceived it had cause, and at the same time hold on to all his patent rights. But Creamer was not discharged. Even after refusing to permit him to work, while complaining to his attorneys of his alleged'misconduct, the company still insisted that it could if it chose, “ call upon him again at any time to act as suj)erintendent or salesman.” . And thereafter Creamer did again offer his services to the company.
It is hard to understand how the defendant can consistently claim that the company discharged Creamer, and at the same time claim that he voluntarily withdrew from'any connection with the company. As we have seen, however, the company did not discharge him, hut asserted a right to avail of his services at any time they chose. True, Creamer gave the company the sixty days’ notice authorized by the contract, that unless it paid him his guaranteed royalty he should insist upon a cancellation of the agreement. But on the day of the. expiration of this notice, the company tendered the amount of weekly royalties due to Creamer, and brought an action against him in this court, in which a preliminary injunction was obtained, restraining him from rescinding the contract, and that injunction was never lifted during the litigation. Finally, in a second action, commenced a few days later, but decided at the same time, Creamer, unsuccessful in his contention that the company’s rights under the contract were gone, was forever enjoined and restrained from .rescinding the contract on the ground, as alleged by him. of the company’s unfulfilled obligations up to March 30, 1892. From that time up to the end of the three years limited in the contract and guaranty, the agreement continued uncanceled, the company had the benefit of the license, and it is undisputed that during that period it paid nothing on account of guaranteed royalty. Whatever may have been Creamer’s position, therefore, he was not permitted to retain it, but the company insisted, and this insistance was enforced by injunction, that he had no right, and should not be permitted to rescind the .contract. The company having taken such a stand, it cannot now contend that it is under no liability for royalties^ for this would permit it to get the benefit of the license while refusing to pay for it. As long as it claimed that the contract remained iri force, and by injunction restrained Creamer from rescinding it, this gave the latter the right at. any time to withdraw-*356from his position, which he did, concede the company’s right to the license and demand his royalty. In thus receding, Creamer was simply acquiescing in the view taken by the company and supported by the injunction. Whether it ever chose to call upon Creamer to act as superintendent or salesman again or not, was an option which it might not take advantage of. And he, even if called upon, was not bound to render such service without being promptly paid.
We are, therefore, of opinion that the learned judge below was right in holding that there was nothing left' for the consideration of the jury, and in directing a verdict for the plaintiff for the amount claimed,
The judgment should be affirmed, with costs.
Baebett, Rumsey, Pattebson and IngbahAm, JJ., concurred.
Judgment affirmed, with costs.