
    Apollonia Warth, Appellant, v. Max Greif and Simon Greif, Individually and as Surviving Partners of the Firm of L. Greif & Bro., Respondents.
    
    Second Department,
    October 11, 1907.
    Contract — patent license''— breach of agreement not to use other , machines — damages.
    The law favors covenants rather than conditions precedent, and where it is uncertain whether" a clause in a contract was intended as a condition precedent or a mere covenant, it will be construed to be the latter.
    Thus, where a contract licensing the defendant to use a machine, c.overed by letters patent, provides that the licensee may terminate the agreement by returning the machine and paying the royalties to date, “and upon the further condition ” that the licensee will not hereafter use any other similar machine until the plaintiff’s patent has run out, the latter provision will be construed as a covenant rather than a condition precedent, and the licensor suing to recover ■ for a breach of the agreement not to use' other machines is entitled to nominal damages only in the absence of specific proof of actual damage.
    Appeal by the plaintiff, Apollonia Warth, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Richmond on the 18th day of January, 1907, upon the decision of the court rendered after a trial at the Richmond Trial Term, a jury having been waived.
    
      Augustus J. Koehler, for the appellant.
    
      Benjamin N. Cardozo, for the respondents.
   Hooker, J.:

The plaintiff was the owner of certain letters patent of the United States, and was in the' business of constructing and leasing cloth-cutting machines built according to the specifications of such letters. One of her machines she leased to the defendants, and in the agreement the plaintiff was denominated as the licensor and the defendants as the licensees.- Upon the installation of the machine supplied to the licensees- they were to pay, pursuant to the terms of the contract, the sum of $600 to cover the cost of the machine, and undertook to paya royalty of $125 semi-annually, commencing at the time of the installation 'of the machine, November 3, 1893. By supplemental agreement,' the- full $600 of the installation fee not having been paid, the original agreement was modified so that it was provided that the balance of $109 of such installation fee, which then remained unpaid, might be remitted if the licensees should elect to return the machine before May 1, 1896. The 7th paragraph of the original agreement provided as follows: “ The said licensees may terminate the payment of. royalty herein mentioned upon the condition that the aforesaid machine shall .be returned and delivered to said licensor by the said licensees with payment of royalty up to date of such return; and upon the further condition, and the said licensees agree that they will not thereafter use or authorize or allow to be used, directly or indirectly, in their business or elsewhere, any other cloth-cutting machine until all the patents herein mentioned shall have run out.” The licensees returned the machine and the licensor accepted its return before the 1st day - of May, 1896,'and lienee under the terms of the original agreement and the modification thereof, the licensees became released from the payment of any royalties after that day, and likewise became released from, the payment, of the sum of $409.60, the balance unpaid of the installation fee. Soon thereafter, in violation' of the undertaking of the licensees .contained in the: 7th paragraph of the original agreement, they installed and used in their business another cloth-cutting machine, and’this was before the patents mentioned in the .said-agreement and owned .by the plaintiff had rtin out. None of the facts were--in dispute upon the trial. . The plaintiff rested and the action was submitted to the learned court, which tried the case without a jury; without any proof on the part of the plaintiff pf damages she' had sustained, .except such proof as may .have been contained in that respect in the agreement .'itself. The' court decided that the plaintiff was entitled to six cents ...damages, and the judgment was entered accordingly, from which the-plaintiff appeals, . ......

■ The, appellant’s claim is that by reason.of the. defendants’ breach of its undertaking not to installin' its business'any other- cloth-cutting machine, she is entitled to recover as damages the amount- .of the. semi-annual-royalties from, the time, of the installation of. such other cloth-cutting, machine by the defendants to the' time of - the trial; while the respondents ¡contend that, in the. absence of any proof of damage, the damages were nominal, and the judgment for six cents should be affirmed:' , "

The question seems to be whether'tlie - undertaking was a condition precedent or a mere covenant, and this, question must be determined by the construction of the 7th paragraph of the contract: It was there provided that the' licensees might .terminate the payment of royalties upon the condition- that the machine bé returned,. royalties having, been paid .to the time thereof..; “ and upon the further condition, and the said licensees*agree that they.will not thereafter,use” any other cloth-cutting machine:

The law favors covenants rather than conditions precedent. ' If the words “ and upon the further condition ” had been omitted - from the,7th paragraph of .the contract, the question would not be involved in any difficulty, for this agreement clearly would then have' meant that the licensees might terminate the payment of royalties by the return of the machine it was using, royalties having been paid to the date thereof, and because of the agreement or covenant that the licensees would not thereafter use any other cloth-cutting, machine, they would have been compelled to respond in damages to the plaintiff because of their subsequent use of another machine, in such sum as the plaintiff established by common-law evidence she was injured. The insertion of the words “ and upon the further condition” must be, of course, admitted to render the meaning ambiguous, that is, it is uncertain whether the parties meant that the provision against the use of other machines should be a condition precedent or a mere covenant; but because the intent is, from the very nature of the language, ambiguous, there is no difficulty in applying the rule that the courts favor a covenant rather than a condition precedent, and applying that rule, the provision, of the contract must be considered as a mere covenant. It being a covenant, and the contract being silent as to the extent of the plaintiff’s damage by reason of its breach, the plaintiff is not entitled to more than nominal damages in the absence of specific proof of her actual damage.

The judgment should, therefore, be affirmed, with costs. •

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

9

Judgment affirmed, with costs.  