1. The principal question in this case is whether the provision in the contract between the parties, that “ all safes made by said Adams & Hammond, or either of them, or in the making or selling of which they or either of them shall be concerned, consisting of a double case or box, with the intermediate space filled with plaster or other non-conducting substance, shall be considered as coming within this agreement, and accounted for as above stipulated,” applies to safes so constructed, and filled with hydraulic cement, or is to be confined in its application to safes filled in whole or in part with plaster. The contract is of even date with a license from the plaintiff to the defendants to manufacture safes under a patent held by the plaintiff; and the specification annexed to the patent includes only safes filled with plaster of Paris, or with plaster of Paris and sheets of mica. It is agreed that hydraulic cement, though an imperfect conductor of heat, and thus included in the phrase “ non-conducting substance,” differs substantially, as a filling for safes, from the material described in the specification. The defendants claim that the words “filled with plaster or other non-conducting substance ” are to be interpreted as having the same meaning with “ plaster, or its equivalent under the patent; ” and they argue that “ other non-conducting substance ” either refers simply to the plaster mixed with mica, described in the specification, or is used to embrace such future substitute for the plaster filling as might afterward be discovered by the patentee.
*483The strength of the argument on that side of the case is found in the consideration that the object of the agreement is to regulate and prescribe the terms upon which the patented safes may be made and sold under the patent; that most of its clauses could have no proper application to any safes other than those protected by the patent; and that the expression, “ said safes,” which follows and includes the safes referred to in the clause in controversy, as well as those for which the license is given, is used in the agreement not to manufacture outside of Boston and its environs, in the agreement not to sell out of New England, and in the agreement to furnish a full supply for the New England market; and that these stipulations could have no reasonable application to any other safes than those protected by the patent.
While there is much force in these suggestions, and the true meaning of the parties may not be wholly free from doubt, we think the reasons for the construction adopted by the plaintiff are on the whole stronger and more decisive.
The language of the clause in question, in its literal and obvious meaning, includes the safes filled with hydraulic cement. If no other than the patented safes were intended, there could be no need of such a clause, as full provision was already made for the account to be rendered of them. When the stipulation for marking the safes is introduced, the language is changed, and instead of “ said safes,” we find the limitation, “ the safes sold under the said license.” It is also apparent that the plaintiff might have a motive to guard against the manufacture of inferior safes, which might come into injurious competition with those which were to be made under the license; and an agreement for an equal payment to be made for each might secure this important protection. Indeed it is shown by the facts agreed at the trial that the manufacture of the safes filled with hydraulic cement could be profitably carried on if no payment were made upon them under the contract, but that it would be unprofitable if such payment were exacted.
We think therefore that, while the phrase “said safes” may have been only intended to refer to those which had been *484chiefly the subject of description and agreement before mentioned, and not to those which had been included in the obligation to account as a supplemental and distinct class, yet if the latter were held to be included, as in strict grammatical construction they would be, no such unreasonable consequences would follow as to induce us to give a construction to the phrase “ other non-conducting substance ” more limited than its natural import.
2. We are also of opinion that the plaintiff may maintain his action, upon proof of the facts alleged in the second count of the declaration. The money recovered by the defendants as damages for making and selling the patented safes was, by a just construction of the agreement, in part money received to the plaintiff’s use. The judgment for damages would vest in the defendants in that suit, or their vendees, the right to use the specific article, for the making of which in violation of the patent damages were assessed. This right was the one sold by the plaintiff to the defendants under the license, for each exercise of which payment was to be made. If a person had tortiously taken a manufactured safe from the defendants, and an action were broúght, and the value of the safe recovered by them, this would certainly be equivalent to a sale, and certainly ought to subject them to the payment which they had contracted to make to the patentee in case of a sale. Beside, the agreement provides for bringing suits for violations of the patent at the joint expense of the parties—thus recognizing a joint interest in the subject matter of the suit. But the amount which the plaintiff can recover will depend materially upon the fact whether he did contribute to the expenses of the suit; if he did not, it will only be the net proceeds of the suit, after deducting all costs and expenses, in which he would have any claim to participate; and in those, only in the proportion of the royalty at the rate of one cent a pound to the whole damages recovered.
If the suit were brought by the defendants alone, and at their own expense, there might be circumstances which would justify the jury in finding that the plaintiff had consented that they should bring it at their own risk and for their own exclusive benefit. Verdict set aside, and new trial granted.