In brief the complaint alleges the sale of rights belonging to the plaintiff, under pending applications for a patent, upon an agreement by defendant to promptly prosecute interference proceedings before the Patent Office. The defendant was to *722pay $5,500 on or before the 1st day of January, 1906, and within thirty days from the time that a final court decision shall have been obtained sustaining said patent or patents, and in addition to deposit an agreement .for the payment of ten per cent royalty up to the sum of $2,500. There was a provision that if, on account of any unforeseen occurrences or causes beyond the control of the parties, the said court decision should not have been obtained on or before the 1st day of January, 1906, that then and in that event the party of the first part would extend the time limit within which the party of the second part must comply with the said requirements for a further period of time to be mutually agreed upon. It was alleged that the time limit was mutually agreed to be extended to and including the 23d day of February, 1906; that the defendant wholly failed and refused to either deposit the sum of $5,500 in cash or said agreement on or before January 1, 1906, or at any time thereafter; that the defendant did not prosecute said applications promptly, but proceeded so negligently and carelessly, and with so much delay, that said prosecution resulted in the rejection of said applications, which rejection was affirmed by the Court of Appeals of the District of Columbia, and then the defendant neglected, omitted and refused to proceed further to endeavor to procure a final court decision in the above-named litigation, and to obtain patents which might have been granted on the applications for more than a year before the 21st of February, 1906, when the contract between plaintiff and defendant expired.
It seems to me the action is to recover damages for the nonpayment by the defendant of the amounts agreed to be paid by him within the time extended by agreement, caused by the negligence and fraudulent conduct of the defendant in not prosecuting the proceedings with due diligence, and in not taking the further and necessary steps which he ought to have taken to procure the favorable decision upon which the amount agreed upon was to come due. It is a fair reading of all the allegations of the complaint, the contract and the reply, that the time in which the defendant was to do what he had agreed to do was extended to the 23d of February, 1906, and that the cause of action did not accrue until the expiration of the *723extended time given to perform. This action having been commenced within six years after the expiration of said time and the accruing of said cause of action, is not barred by the Statute of Limitations. Therefore, the order appealed from overruling the demurrer to these paragraphs of the reply should be affirmed, with costs and disbursements to the respondent.
Dowling, J., concurred.
Order reversed, with ten dollars costs and disbursements, and the demurrer to the reply to the fifth separate defense sustained, with ten dollars costs.