The defendant’s first request for instructions rightly was refused. The agreement declared on recited that the plaintiff had filed an application for letters patent upon an invention, and had assigned a half interest therein to the defendant. It contains a stipulation that the defendant shall pay “all expenses required for the prosecution and procuring” of patents “in this and foreign countries.” It does not appear, and the defendant does not seem to have claimed, that he had paid the expenses of procuring the patent which had been applied for; and there was affirmative evidence that this patent never had been issued. It may be that the defendant could not be required to pay the expenses of obtaining or attempting to obtain patents in foreign countries unless both parties should desire to apply therefor; but the agreement cannot be construed to give him the right to terminate it before he has complied with his promise to defray the expenses of procuring the patent for which application was then pending. The agreement must have been intended to remain in force until he should have complied with this stipulation or such performance should without his default have become impossible. That was the manifest intention of the parties. Hubbell v. Buhler, 43 Hun, 82. Wright v. C. S. Graves Land, Co. 100 Wis. 269. The question whether since the agreement is silent as to the term of its duration after the patent shall have been paid for and taken out, it should be considered after that event as remaining in force only for a reasonable time, or as terminable at the will of either party as a partnership would be, is not raised upon this report, and we express no opinion upon it. See Carnig v. Carr, 167 Mass. 544, 547; Rotch v. French, 176 Mass. 1; Tilton v. Whittemore, 202 Mass. 39; St. Paul Plow Works v. Starling, 140 U. S. 184.
There was no error in the ruling made on the motion for a new *537trial. The parties did not become partners as between themselves. Their situation resembled rather that of ship-owners. They owned together, in equal shares, the invention and the patent of which they contemplated the issue. They regarded themselves as joint owners, and covenanted with each other accordingly. Thorndike v. DeWolf, 6 Pick. 120. French v. Price, 24 Pick. 13. Buck v. Dowley, 16 Gray, 555. Meserve v. Andrews, 104 Mass. 360. Mayo v. Moritz, 151 Mass. 181.
The defendant made an absolute agreement to pay to the plaintiff the sum of $12 per week. This he is held to pay in any event during the continuance of the agreement. It is not merely a charge upon profits, although if profits should be realized it is to be deducted from the amount thereof before making any division. It follows that the plaintiff is entitled to maintain these actions for the amount of his stipulated weekly salary. There is authority for the position that he would be so entitled even if the relation between these parties were that of partners. Williams v. Henshaw, 11 Pick. 79, 83, 84. Ryder v. Wilcox, 103 Mass. 24, 29, 30. Costelo v. Crowell, 134 Mass. 280, 286. Paine v. Thacher, 25 Wend. 450. Robinson v. Green, 5 Har. (Del.) 115.
What we have said disposes of all the questions that have been argued by the defendant. In each case the order must be
Judgment on the verdict.