
    RUBBER TIP PENCIL COMPANY against HOVEY.
    
      Supreme Court, First District; Special Term,
    
    
      September, 1870.
    Ih-titectioe.,—Several Cortracts Coestrued as Ore.
    Three instruments between the same parties having been executed at the same time, and together embodying the terms of a compromise in reference to a question of infringement of patent right;—Held, that they must be taken together as one contract; and that the plaintiff, while refusing to be bound by one of them on account of alleged violations by defendant, could not have an injunction to restrain defendant from disregarding the provisions of another.
    Motion to vacate injunction.
    The Rubber Tip Pencil Company brought this action against Samuel D. Hovey, to enjoin him and his servants from making or dealing in rubber pencil-heads during the term of a patent therefor, claimed by plaintiffs, except dealing in such as might be purchased from plaintiffs ; and for damages.
    It appeared that defendant and his partner, on the one hand, and one Levi L. Tower, on the other, each held a patent for such a device, and after gome controversy respecting an infringement which Mr. Tower complained defendant made, they agreed to combine them interests, Tower to take both patents, and to supply defendant on terms agreed on.
    In reducing the compromise to writing, three instruments were made, each dated September 16, 1868, and all executed at the same time.
    The first fixed the conditions of purchase and sale of the article between the parties; the price to be paid; and limited the quantity to be ordered.
    The second agreement provided that neither party, should sell pencil point protectors with rubber heads atta.ch.ed, at a less price than two dollars and seventy-five cents per gross.
    And the third agreement (on which this suit was founded) provided that the defendant would not purchase or sell rubber heads unless the same should be procured from Tower.
    Defendant’s affidavits alleged that it was not intended by the parties to make three separate contracts, by adopting three instruments.
    After the execution of these instruments, defendant assigned his patent to Tower, and thereafter ordered the articles from him.
    Subsequently, Tower refused to fill the defendant’s orders. This refusal was communicated in writing, and in it defendant’s “frequent and continued violations of the covenants and conditions of the agreement of date September 16, 1868,” were alleged as grounds for considering the agreement void. Still later, Mr. Tower assigned his contract and patent to the plaintiffs.
    The defendant insisted that he had not violated the agreement up to the time of Tower’s refusal, and that Tower had first violated it by his refusal and notice.
    
      Plaintiffs, claiming as assignees of Tower, obtained a preliminary injunction.
    A motion to dissolve it at first was denied, with leave to renew, and was now renewed before Mr. Justice Ingraham.
    
      Ambrose Monell, for the motion.
    I. These instruments must be construed together, as forming but one contract (Van Vleet v. Slauson, 45 Barb., 317; Cornell v. Todd, 2 Den., 130; Church v. Brown, 21 N. Y., 315; Pepper v. Haight, 20 Barb., 429; Meriden Brittania Co. v. Zingsen, 4 Robt., 312; Hamilton v. Taylor, 18 N. Y., 358; 2 Pars. on Contr., 503, and cases there cited). This might be done, even if the several instruments were not made at the same time (Van Hagen v. Van Rensselaer, 18 Johns., 420; Sawyer v. Hammatt, 15 Me., 40; Adam v. Hill, 16 Id., 215).
    II. Tower’s refusal to fulfill precludes an injunction to enforce.the contract against defendant (New York & Harlem R. R. Co. v. Mayor, &c. of New York, 1 Hilt., 562; 15 Wend., 87; 12 Id., 334; Dubois v. Delaware & Hudson Canal Co., 4 Wend., 285; Lantry v. Parks, 8 Cow., 63; 2 Pars. on Contr., 678).
    III. Were the agreements to be regarded as separate, the injunction could not be upheld, because the effect would be in restraint of trade, and inequitable as towards defendant.
    IV. For the purposes of the injunction, it makes no' difference who was the first to violate the agreement. It is enough that Tower has rescinded it.
    
      J. S. Washburn, opposed.
   Ingraham, J.

Whether or not the defendant is violating a patent, is not material in this action.

. The three instruments are to be construed together as one instrument. They all relate to the same subject-matter, were made at the same time, and cannot well be carried out separately. Both parties seem to have considered that both agreements had been violated, and claim, on the part of each, that one was void.

Under these circumstances, I see no propriety in continuing the injunction on one of them while the plaintiff claims that the other has ceased to have any validity.

Motion granted, costs to abide event.  