Opinion
July 9, 1927.
Jerome Simmons, of New York City, for plaintiff.
Miller Otis, of New York City, for defendant.
Action by Mary B. Elliott, individually and as executrix of the estate of James P. Elliott, deceased, against the Barrett Company. On defendant's motion for judgment. Motion granted, with leave to amend.
Judgment affirmed in 25 F.2d 126.
A promise to pay royalty at a rate agreed upon, and providing that the payment on account of such royalty shall not be less than $5,000 in any one year in which the licensee operates under the license, is free from ambiguity. Such a provision does not mean that the royalty shall not be less than $5,000 in any one year. The words "in which Barrett operates under this license" were used for some purpose, and must be given some meaning. The only meaning they can be given is one qualifying and limiting the expression "in any one year." The words "in any one year in which Barrett operates under the license" do not mean in any one year in which he has a right to operate, or to exclude others from infringing the patent.
No other terms of the agreement are inconsistent with the clear meaning of these words. There not being any ambiguity, the terms of the agreement, and not the acts of the parties, determine their rights and obligations.
The motion, therefore, is granted, with usual leave to amend.