
    Russell Brusie, Resp’t, v. Peck Brothers & Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Trial—Improper remarks op counsel.
    While a statement made by plaintiff’s counsel in opening the case, that defendant had made an offer of judgment, is improper, it is not such error as to call for a reversal of the judgment.
    •2. Variance.
    The complaint in an action asked for equitable relief, damages for breach of the covenants of a license to sell under a patent, and royalties. The case was sent to the circuit for trial, where the evidence was confined to showing that certain sums were due for royalties. Held,'not a variance.
    .3. Patents—Liability oe licensee.
    An agreement to pay a certain royalty on each article manufactured and sold under a license is binding upon the licensee whether the principle was new or old, or the patent valid or invalid.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for a new trial on the minutes.
    
      Wolff & Ilodge (Robert Sewell, of counsel), for app’lt; Robert S. Wensley (L. A. Gould and Horace Graves, of counsel), for resp’t.
   Dykman, J.

The plaintiff in this action held letters patent for .a portable lawn sprinkler, and on the 18th day of August, 1873, he entered into a written contract with the defendant, a foreign corporation, by which it acquired the right to manufacture and sell lawn sprinklers under the patent of the plaintiff, and it agreed to pay him a royalty of two dollars for the sprinklers known as Ho. 1 and two dollars and fifty cents for the sprinklers known as Ho. 2 made and sold by it.

As the complaint demanded both legal and equitable relief the cause was noticed for trial at the special term, but when it was called the counsel for the defendant demanded a trial before a jury, and the cause was thereupon sent to the circuit for trial.

Upon the trial at the circuit no claim was made for any equitable relief, and the plaintiff sought only to recover the amount due him for royalties under the written agreement with the defendant.

A verdict was rendered in favor of the plaintiff at the circuit, and the defendant has appealed from the judgment and from the order denying a motion for a new trial on the minutes of the court.

In opening the case to the jury the counsel for the plaintiff said: “ After the lapse of fourteen years the defendant made an . offer of judgment.”

The remark was excepted to by the counsel for the defendant, who now assigns the same for error.

While the remark was improper and the counsel for the plaintiff had no right to prove the offer, yet it was not an error which would justify the reversal of the judgment.

It is also the claim of the appellant that there is a fatal variance between the pleading and the proof, but it must be remembered that the complaint was originally drawn for the procurement of equitable as well as legal relief, and when the cause was sent to-' the circuit at the defendant’s request nothing could be recovered but the damages resulting to the plaintiff from a breach of the agreement on the part of the defendant, and certainly in a broad sense the failure to pay the royalties stipulated in the agreement was a breach thereof, and the amount of such royalties remaining unpaid was the measure and extent of the plaintiff’s damages.

The agreement was set out in the complaint and there is an allegation that the defendant has received sums of money for lawn sprinklers sold by it for which the defendant has become liable to pay the plaintiff large sums of money. It is true the complaint might have contained an allegation more appropriate, but if it was not sufficiently definite and certain, the remedy of the defendant was to have it made so by an application to the court for that, purpose.

As it was, there was an answer and the proof was admitted, and the case was properly submitted to the jury and the complaint is sufficient to hold the verdict.

We think also the cause was tried upon the proper theory of the law. The rights of the parties were fixed by and depended upon the written agreement, and the extent or validity of the patent was immaterial to the question to be determined. The defendant agreed to pay royalties for the sprinklers manufactured and sold under the agreement, and it was bound to do so whether the-principle was new or old, or the patent valid or invalid.

AH the exceptions have been examined and they present no-error.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.  