The parties, as joint owners in unequal proportion of certain patents for an improvement in firearms, letters for which had issued to them in foreign countries, had associated themselves under written articles for the purposes of exploitation of their invention. Certain charges for the year 1900 were required to be paid to preserve their rights as patentees, and these, with the expense incidental to remittance, were borne by the plaintiff. Thereafter this action was brought to recover from the defendant his proportion of such charges and expenses, the plaintiff alleging that the payment was made in reliance upon the defendant’s express promise to refund the amount in proportion to his ownership of the patents.
Counsel for the appellant contends, and counsel for the respondent concedes, that, under the written articles hereinbefore alluded to, the parties were copartners. However, notwithstanding this fact, the action was, nevertheless, maintainable, since no accounting of their joint transactions was involved (Ferguson v. Baker, 116 N. Y, 257; Bank of British North America v. Delafield, 126 id. 410); but plaintiff clearly failed in his proof and the evidence in no aspect justifies the judgment recovered.
The defendant’s alleged promise was made in August, 1899, and the payment of the charges imposed upon the patents was not made by the plaintiff until some time after May 21, 1900. Between these dates correspondence ensued between the parties, which took its initiative from the plaintiff’s demand of the defendant that the latter remit his proportion of the accruing charges, a demand with which the defendant pertinaciously refused to comply, except that he intimated his consent to such payment out of a balance of money claimed by him to be unexpended and in the plaintiff’s hands; and the correspondence culminated in the plaintiff’s letter to the defendant’s attorney, under date of June 12, 1900, from which we quote as follows: “1 have now given you ample notice and opportunity to act in the matter *34of payment of taxes due the 25th inst., and a further neglect on your client’s part to furnish in cash, his proportion of the gross amount then payable, will he considered hy me as a refusal on his part to do so.”' That the defendant’s attitude was a pronounced repudiation of the promise claimed to have been made by him, and that the plaintiff did not, therefore, make the asserted payment with reliance upon any such promise, seems irrefragable from the circumstances detailed.
But, counsel asserts, that the plaintiff made the payment in performance of a contract, made in August, 1899, so to do, from which neither party was at liberty to recede. What contract? We have scrutinized the record in a vain effort to find evidence sufficient to support the contention that there was one. The plaintiff’s personal attitude upon the trial was consistent only with a promise on his part to meet the defendant’s proportion of the patent charges out of money to be previously remitted by the latter. Nowhere does it appear that the plaintiff engaged to pay such charges in consideration of the defendant’s promise to refund his proportion of the amount after it had been paid, an engagement which might have entailed liability in damages for a breach of its performance. The plaintiff’s attitude, as has already been said, was a clear and unmistakable disclaimer of any such engagement upon his part. Where, then, was the mutuality, the constituent of every contract? 5 Lawson Rights, Rem. & Pr., § 2243, p. 3758. Clearly, from the proof, there was no more than the defendant’s offer to refund his proportion of the necessary charges if the plaintiff should meet them. Until acted upon by the plaintiff, he was permitted to withdraw (L’Amoreux v. Gould, 7 N. Y. 349; Willetts v. Sun Mut. Ins. Co., 45 id. 45), and that he did withdraw the offer, if it was ever made, before any of the charges upon the patents were met by the plaintiff, is apparent from his repudiation of it in the course of the correspondence already alluded to. Certain it is that the defendant’s attitude therein was not such as to persuade the plaintiff to believe that he intended to fulfill any such promise.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Leventritt and Clarke, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.