It is assumed by both parties that the judge of the Superior Court acted rightly in ruling that the machines which had been manufactured and sold by the defendant were *211not within the terms of the letters patent held by the plaintiff and Mann, and in ordering a verdict for the defendant on the first count of the declaration. But the plaintiff sought in her second count to hold the defendant for royalties upon the ground that the defendant had manufactured and sold its machines as and for machines covered by the plaintiff’s patent, and included within the terms of the written agreement, and so had impliedly agreed to pay royalties upon them according to those terms. Strong v. Carver Cotton Gin Co. 197 Mass. 53. The question now raised upon the report is whether it can be so held for the whole period after July 1, 1900, when the defendant ceased to pay any royalties, up to the date of the writ.
The defendant did not deny that such an agreement, by inference or implication from its conduct, as was alleged by the plaintiff, could be found to have existed for a time, but contended that this had been terminated in July, 1900, or at some later time in that year, by a verbal notice to the plaintiff that the company did not consider that it was using her patent, and did not intend any further to pay royalties upon the machines which it was making and selling. There was also much evidence of a like notice given to Mann, the plaintiff’s joint licensor, who was then living. But there was also evidence that after that time and up to the date of the writ, the defendant’s machines continued, as before, to be marked, advertised and sold as patented under the plaintiff’s patent.
There is no doubt that the defendant, at any time and for any reason, could terminate the arrangement under which it was paying to the plaintiff royalties for which, without that arrangement, she would have had no legal claim. And the testimony at the trial tended strongly to show that the defendant had so acted. But this testimony was for the jury. Even that part of it which was not directly contradicted, such as the testimony relating to the notice said to have been given to Mann, cannot be now regarded as conclusive, for the jury had a right to disbelieve it. Lewis v. Coupe, 200 Mass. 182, 187, and eases cited. And the very fact that the defendant continued to mark, advertise and market its machines as made under the plaintiff’s patent was some evidence that it regarded the previous arrangement as still in force. How far the effect of this was weakened by the *212fact that it was done by Mann or under his direction, was for the jury to consider. So, too, it was for the jury to consider how far the weight of this evidence was affected by the fact that after the defendant had once actually terminated the existing arrangement between it and the plaintiff, it would not have been material in this action whether it marked or advertised its machines in one way or another. Although it well might have been expected that the jury would agree with the contention of the defendant, yet we have not the right to interfere with their finding merely because it may seem to have been against the great weight of the evidence. Saures v. Stevens Manuf. Co. 196 Mass. 543, 547. In our opinion it was for the jury to say whether or not there had been any termination of the arrangement and understanding that they might find had been come to between these parties, and the whole question was rightly submitted to them.
As the question of practice has been argued, we add that we do not doubt the power of a judge of the Superior Court, under E. L. c. 173, § 105, to report a case to this court, even though his motive for so doing is that the losing party by accident or mistake has failed to prosecute exceptions which were properly taken, and which, in the opinion of the judge, presented material questions that should be passed upon by this court. It was for him to determine, in the proper exercise of his discretion, whether he would report the case; Electric Welding Co. v. Prince, 200 Mass. 386, 391, 392; Smith v. Lincoln, 198 Mass. 388, 392, and cases cited; and we cannot find in this case any wrongful exercise of that discretion.
In accordance with the terms of the report, the order must be
Judgment on the verdict.