The plaintiff’s claim for the §30 a week royalty has 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 Ms time and attention to the best of Ms 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company was compelled to and did discharge him from its employ some time prior to March, 1892; and the other, that he rescinded the contract between the company and himself, and voluntarily withdrew from any connection with the company, and refused to perform the covenants and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 saleman, “if requested so to do” by the company, so long as his guarantied 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 its duty to make prompt payment of his guarantied royalties. At the time the company took from him the keys of the establishment, and refused to allow Mm 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 Mm from its employ. Creamer was not an ordinary employé upon a weekly wage. By the contract between Mm 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 pay 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 1st 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 *2101st of June of the succeeding year. The company could 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 superintendent and 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, but asserted a right to avail of his services at any time they chose. True, Creamer gave the company the 60 days’ notice authorized by the contract, that, unless it paid him his guarantied royalty, he should insist upon a cancellation of the agreement. But on the day of the expiration of this notice the company tendered the atiiount 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 guarantied royalty. Whatever may have been Creamer’s position, therefore, he was not permitted to retain it; but the company insisted, and this insistence 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 in force, and by injunction restrained Creamer from rescinding it, this gave the latter the right at any time to withdraw from 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. All concur.