
    FRANCIS H. DYKERS, Plaintiff and Respondent, v. LABAN C. STUART, Defendant and Appellant.
    I. Contract to Advance Monets fob the Development of an Invention, containing an assignment of one-half of the invention, and an agreement to repay the money advanced, if the party advancing is not satisfied with the practicability of the invention.
    1. Meeission of, by the advancer,'when.
    
    1. When several machines have been constructed, none of which were such as was contemplated by the contract, and plaintiff had never expressed satisfaction with any of them, but the defendant (the inventor) was himself dissatisfied with them as they were constructed, each being set aside for another, and the last one condemned and abandoned by him, the advancer may rescind and recover bach his advances.
    
    2. Waiver of this right—what subsequent action does not operate as.
    
    The joining by the advancer with the inventor in an agreement with other parties, whereby the inventor assigns to such other parties a certain proportion of his interest, and the advancer a certain proportion of the interest obtained by him under his agreement with the inventor, and the other parties agr.ee to construct at their own- costs a suitable engine, and put it in practical operation, and pay all the necessary expenses for testing and bringing forward the engine so as to put it in practical operation, and to pay the inventor a certain weekly sum for his personal expenses, and to pay out of the first profits of one-half of the interest assigned to him a certain sum, a certain proportion of that sum to the inventor, and a certain proportion to the advancer; and whereby it was agreed that none of the parties should part with or dispose of any part' of their •interest in the invention, without the consent and concurrence of all the parties, does not operate as a waiver of the right of rescission by the advancer.
    
    3. Restoration to the inventor of all that he has parted with to the plaintiff.
    
    1. Under the circumstances, an offer before suit to execute all papers necessary to put the inventor in possession of the right to any patent which the advancer might hold, is a sufficient compliance with the condition precedent of restoration.
    
    
      4. Mutual covenants. The principle governing them not applicable to such a case.
    31. Objection.—Tkial.—Appeal.
    1. A ground not taken at the trial cannot be urged on appeal.
    Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided March 2, 1872.
    Appeal from a judgment entered-on the report of a referee.
    The action was to recover on two causes of action: first, for money advanced, and second, for expenses incurred.
    On June 20, 1864, the plaintiff and defendant made an agreement, wherein the defendant assigned to the plaintiff the one-half of a certain invented magnetic engine to be used as a general motive power, and agreed to devote all the time and attention necessary to the construction of a machine, for the purpose of showing its practical operation, and for the' purpose of obtaining patents therefor. The plaintiff agreed to advance one hundred dollars toward the construction of the machine; and if, on a practical test of the same, he should be satisfied that the invention was practical as a motive power, he agreed to advance such sum as might be requisite for the purpose of obtaining patents for .the same, not to exceed the sum of four thousand dollars, and such sum as might be requisite for the personal wants of the defendant, not to exceed the sum of one thousand dollars.
    It was further agreed between the parties that if the invention should not, on a practical test, be considered feasible by the plaintiff, he should not be required to make any further advances, than the amount already advanced by him, for the construction of the machine.
    And it was further agreed, that if the invention was not patentable, then any advances made by the plaintiff should be repaid to him, with interest by the defendant.
    And it was further agreed, that if the invention should be put in practical operation, then that all advances and expenses incurred by the plaintiff should be repaid to him, with interest, out of the first profits on the sale of machines or rights to construct the same under said invention. And it was further agreed that the plaintiff should devote all the time and attention necessary to securing and protecting the rights of the parties thereto, to such invention, without any compensation therefor.
    And it was further agreed, that neither of the parties thereto should sell, dispose of, or mortgage his right or share to the invention, without having first offered the same to the other, and in no case, without the consent, of the other first had and obtained in writ- ' ing.
    Under this contract, the plaintiff alleged, that he advanced to the defendant the sum of one hundred and seventy-five dollars, towards the construction of the experimental machine, and for the defendant’s personal expenses.
    The plaintiff further alleged, that the defendant constructed a machine, which did not prove satisfactory to the plaintiff, and thereupon, the parties made another agreement, of date of June 25, 1864, as follows:
    “It is understood and agreed between the parties to the foregoing contract, that, whereas a machine has been constructed, which from its imperfection of construction, does not fully illustrate the advantages claimed for it by said party of the first part (defendant). And, whereas said party of the first part is desirous that said party of the second part (plaintiff) should advance the necessary sum therefor, and is also desirous that said party of the second part should advance to him, the said party of the first part, the further sum of thirty dollars per Week, until said machine is constructed, for his personal expenses, which several advances, the said party of the second part is willing to make. Now, in consideration of such advances, the said party of, the first part covenants and agrees, to and with the said party of the second part, that if,. on the construction of such new machine, said, party of the second part is not satisfied with the practicability of the same as a motive power, said party of the first part will repay to said party of the second part, all moneys heretofore advanced, and for which receipts are given on the other side, and all moneys which he may hereafter advance under this agreement.
    “And moneys advanced by said party of the second part, and hereafter to be advanced in excess of the one hundred dollars agreed to be furnished for building a machine, shall be credited to said party of the second part on the amount required by the contract to be furnished for taking out patents, unless the same shall have been furnished for personal expenses of said party of the first part, in which case they shall be credited to said party of the second part on the amount agreed to be advanced for his expenses.
    “These credits are to be made if the machine proves satisfactory to said party of the second part, and is put in practical operation.”
    Under this last contract the plaintiff alleged that he had advanced five thousand and fifty-eight dollars and fifty cents. He further alleged that none of the engines constructed were practicable as motive powers, and that in January, 1869, he notified the defendant, as follows:
    “New York, January 11, 1869.
    'L. C. Stuart, Esq.,
    “ Dear Sir:
    
    “As the contract entered into by us, relative to the Electro-magnetic Engine, gives me a right to the return of the money advanced by me, under the contract, if I shall not be satisfied with the practicability of the engine as a motive power, I write for the purpose of notifying you that I am not satisfied with the practicability of the engine as a motive power, and that I claim my right under the contract. I am ready and willing, and hereby offer, to execute all papers necessary to put you in possession of the right to any patent which I hold.
    “Hoping the favor of an early reply,
    • “I am, very respectfully,
    “Your obdt. Servnt.,
    “Frauoís H. Dykers.”
    There was a second cause of action for money expended by the plaintiff at the request of the defendant, in and about the business of the defendant. .
    The defendant denied all the plaintiff’s allegations except the making of the contracts.
    Subsequent to the above agreements, the following agreements were made:
    “Agreement made this ninth day of May, one thousand eight hundred and sixty-six, between Laban C. Stuart, of Mamaroneck, Westchester Co., Mew York, and Francis H. Dykers, of the city of Mew York, parties of the first part, and Joseph Kingsland and Richard Kingsland, of Franklin, Essex Co., Mew Jersey, parties of the second part. Whereas, the said parties of the first part are the owners of a certain invention of improvements in Electro-magnetic Engines, for which letters patent have been applied for to the United States Government by Laban C. Stuart, one of the parties of the first part, as inventor, and said parties of the first part are owners in equal proportions of said invention.
    “And whereas, the parties of the second part are desirous of purchasing a share of said invention, to be used in the United States, and of the patent which may be issued for the same by the United States Government :
    “ Mow, this agreement witnesseth that the said parties of the first part, for and in consideration of the money hereinafter agreed to be paid by the said parties of the second part, have bargained, sold, assigned, transferred, and set over, and do hereby bargain, sell,” assign, transfer and set over to said parties of the second part, one quarter part of said invention of improvements in Electro-magnetic Engines, to be used in the United States, and of any patent issued by the United States Government for the same, or for any improvements on the same.
    “To have and to hold the same to said parties of the second part, and to their separate use and benefit forever.
    “And the said parties of the second part, for and in consideration of the said one-quarter part of said invention to be used in the United States, covenant and agree to pay to said parties of the first part, the sum of fifteen thousand dollars, as follows :
    “ Twenty-five hundred dollars in cash. Forty dollars a week at the end of each week, and such sums from time to time as may be required for the expense of experiments for improving and advancing said invention, and constructing engines and batteries, or any other thing appertaining to said invention, and for patenting the same in the United States until said various payments shall amount in the aggregate to the sum of seven thousand dollars.
    “ And the remaining eight thousand dollars shall be paid out of the profits belonging to the one-quarter of said invention hereby sold, arising from the sale of engines under said invention.
    “And it is understood and agreed, that if the amount required to pat such invention in a practical condition for the construction and sale of engines shall not amount to forty-five hundred dollars, that then such part of said forty-five hundred dollars which shall not be so required, shall be paid as well as the eight thousand dollars hereinbefore referred to, out, of the profits of the one-quarter hereby sold.
    “And it is further understood and agreed, -that neither of the parties to these presents shall dispose of their shares, or any part of the same, without the consent and concurrence of the other party hereto.
    “ In witness whereof the parties hereto have hereunto set their hands and seals the day and year above written. L. C. STUART. [Seal.]
    FRANCIS H. DYKERS. [Seal.]
    JOSEPH KINGSLAND. [Seal.]
    RICHARD KINGSLAND. [Seal.]”
    
      ‘ ‘ This Agreement, made this eighth day of April, one thousand eight hundred and sixty-seven, between Laban C. Stuart of Mamaroneck, Westchester Co., Yew York, Francis H. Dykers, of the city of Yew York, Joseph Kingsland, and Richardson Kingsland, of Franklin, Essex Co., Yew Jersey, parties of the first part, and Cornelius H. De Lamater, of the city of Yew York, party of the second part. Whereas, The said parties of the first part are the owners in the right in the United States to an invention of improvements in Electro-magnetic Engines, discovered by Laban C. Stuart, and for which an application has been made by him for letters patent to the United States Government.
    “And whereas, said right to said invention in the United States is owned by said parties of the first part, in the following proportions:
    ‘Laban C. Stuart, three-eighths thereof; Francis H. Dykers, three-eighths thereof; and Joseph Kingsland and Richard Kingsland one-quarter thereof.
    “ And whereas, the said party of the second part is desirous of purchasing one-eighth of the right in and to said invention in the United States.
    “ Yow, this agreement witnessetk, that said parties of the first part, in consideration of the covenants on the part of said party of the second part herein contained, hereby bargain, sell, assign, transfer, and set over unto said party of the second part, one-eighth part of the right in and to said invention in the United States, out of their respective shares, in the following proportions:
    “ The said Laban C. Stuart, one eighth of his three-eighths or three sixty-fourths; the said Francis H. Dykers one-eighth of his three-eighths, or three sixty-fourths ; and the said Joseph Kingsland and Richard Kingsland the one-eighth of their one-quarter or two sixty-fourths, making in all eight sixty-fourths, or one-eighth part of the whole right in the United States.
    “In consideration of the same, party of the second part covenants and agrees that he will, at his own proper cost and charge, construct an engine suitable to be sold and put in practical operation. The engine now in course of construction, or so much thereof as shall be considered suitable and proper to be used, to be considered'the engine so to be constructed for that purpose, and to pay all the necessary expenses for testing the same, and for bringing the same forward, so as to be put in practical operation.
    “That he will pay to Laban 0. Stuart, for his personal expenses, the sum of forty dollars a week from the date of this agreement, until the engine shall be put in practical operation. That said ’ party of the second part will obtain free of any charge whatever the services of John Ericsson, for the purpose of developing, improving, and putting in practical operation said invention, or will use his best endeavors to obtain the said services. Said party of the second part will use all his influence and experience for the production, putting in operation and sale of all engines manufactured under said invention.
    “ Said party of the second part further covenants to pay out of the first profits of the one-half of the one-eighth part hereby sold to him the sum of five thousand dollars, to be paid to said parties of the first part in the following proportions: To Laban 0. Stuart, three-eighths thereof; to Francis H. Dykers, three-eighths thereof; and to Joseph Kingsland and Richard Kings-land, one-quarter thereof.
    “ And it is understood and agreed that none of the parties hereto shall part with or dispose of any part of their interest in said invention without the consent and concurrence of all the parties hereto.”
    The action was tried before a referee, who made the following findings of fact:
    
      
      “ That under the contract an engine was constructed, and that the plaintiff advanced the sum. of two hundred and seventy-five dollars to the defendant; that the engine so constructed did not fully illustrate the advantages claimed for it by the defendant, and that thereupon the contract of June 25, 1864, was made; that under the contract two engines were constructed, and the first of these, which was originally constructed with small magnets, had them replaced with large ones; that the last of these engines was the last engine constructed with the money furnished by the plaintiff; that the amount of money advanced by plaintiff under the second contract was four thousand seven hundred and eighty-three dollars and fifty cents; that when the engine was constructed and tested, the defendant applied to the plaintiff for more money to construct another engine on a different plan, which plaintiff refused to furnish ; that, subsequently the defendant obtained money from the Messrs. Kingsland, under a contract made with' them ; that plaintiff received no part of the money paid by the Kingslands, under that contract, for his own use ; but it was all disbursed for constructing engines, and for defendant’s expenses ; that when all that money was exhausted, a contract was made with one De Lamater, as none of the engines were satisfactory as motive powers ; that under that contract, two engines were constructed, and they were the last constructed by the defendant; that no engine, such as was contemplated by the second contract between the plaintiff and the defendant, had ever been constructed by the defendant; that the plaintiff never expressed himself satisfied with the practicability as a motive power of any engine constructed by defendant-; that the plaintiff did express hopes of the success of the enterprise ; that the defendant was not satisfied with any of the engines constructed ; but each was successively set aside for another, and the last one condemned and abandoned by defendant; that patents were applied for in the joint names of plaintiff and defendant, before any practical test of the engine patented was had in the presence of plaintiff; that the plaintiff was no electrician or mechanic, and relied, for his information of the efficacy of the engines, on the defendant; that the plaintiff notified defendant before the commencement of this action that he was not satisfied with the practicability as a motive power of any of the engines constructed by defendant, and demanded the repayment of the money advanced by him to defendant, under the contract; that the plaintiff, at the special instance and request of the defendant, remained in Paris, contrary to his (plaintiff’s) intentions, from January 1,-1868, to March 18, 1868; that while so staying there, he necessarily incurred expenses for which he paid a sum amounting in American currency, to seven hundred dollars.
    The defendant duly excepted to the findings of fact, and requested the referee to find as a conclusion of law, that the plaintiff at the time, and long before the commencement, of the action, was joint owner with the defendant and Joseph Kingsland, Jr., Richard Kings-land, and Cornelius H. Delamater, of the said invention, and of the engines so constructed thereunder.
    The referee refused so to find, and the defendant excepted.
    Judgment was entered for the plaintiff, and the defendant appealed.
    P. J. Gage, attorney for appellant, and Christopher Fine, of counsel, urged:
    I. That under the conceded facts, the report of the referee should be set aside, the judgment entered thereon vacated, and a new trial granted. 1. Although the plaintiff at the time, had a right, under the contract of June 25, 1864, modifying contract of March 26, 1864, to demand a repayment to him by the defendant of the moneys he had advanced, or might advance, under that agreement, “if on the construction of such new machine ” he was “ not satisfied with the practicability of the same as a motive power,” yet the plaintiff waived that right, and es-topped himself from demanding back the payment of the money, by entering into a partnership and joint ownership with the defendant and Joseph and Richard Kingsland, and also into another partnership with these gentlemen and Cornelius W. Delamater, as he did on May 9, 1866, and April 8, 1867, and consented tu accept an engine to be constructed by Mr. Delamater. By these agreements the plaintiff—(1.) Elects to act as and become a joint owner and partner with the defendant, and to share the ■ advantages or dis- ' advantages of the enterprise; (2.) Transfers to third parties a portion of his one-half interest as owner, and also becomes partners with them, and is to receive and enjoy the various considerations therefor; and (3.) Consents to accept an engine to be constructed by Mr. Delamater; and (4.) Puts it out of his power of making restoration to the defendant of that which formed the consideration of the money, now sought to be recovered by the plaintiff. He cannot restore the entire patents, invention, machines, engine, &c., &c., to the defendant. He cannot place him in statu quo. And that plaintiff and defendant, in fact, regarded themselves as partners.
    II. Even if the subsequent contracts of May 9, 1866, and April 8, 1867, between the plaintiff and the defendant, and the Messrs. Kingsland and Delamater, respectively, did not operate as a waiver of, or supersede the supplemental contract of June 25, 1864, yet a new trial must be granted. Because—1. In each of these contracts with the Messrs: Kingsland and Delamater, the plaintiff expressly agrees (in the Messrs. Kingsland contract), “ that neither of the parties to these presents shall dispose of their shares, or any part of the same, without the consent and concurrence of the other party heretoAnd in the Delamater contract, that “ it is understood and agreed that none of the parties hereto shall part with or dispose of any part of their interest in said invention without the consent and concurrence of all the parties hereto.” How there is not a word of testimony in the whole case showing, or tending to show, that the plaintiff ever obtained or has the consent or concurrence of either of the Messrs. Kingsland, or of Mr. Delamater, to dispose of his share, or any part of his share, or his interest, or any part of his interest, in the said invention, &c., &c., to the defendant. Without such consent and concurrence, he cannot transfer even his own interest therein, much less the one-quarter of the said invention, &o., transferred to the Messrs. Kingsland by himself and the defendant, and the one-eighth part of the same, transferred by himself, the defendant and the Messrs. Kingsland to Mr. Delamater. 2. The plaintiff, as a lawyer, of course felt the necessity of restoring everything to the defendant which had been obtained from him before he could even demand the money back, and therefore, in his complaint, ignores the Kingsland and Delamater contracts, and avers that he is ready and willing * * to execute all papers necessary to put defendant in possession of the right to any patent which he (the plaintiff) held. But even this he neither did, nor tendered even as to his own interest, and if he had done so, it would not have been sufficient, for the defendant was eguaTly entitled to the other interests, and they were all outstanding, and beyond the control of the plaintiff. “ Where a party desires to abandon or rescind a contract, because of some alleged breach, &c., the law requires him to act with due promptness in making his election, and . . he will not be permitted to do so when at the time of the rescission both parties cannot be placed in the identical situation, and cannot stand upon the same terms as at the time the contract was made ” (Hunt v. Singer, 1 Daly, 209, and many cases cited). “A party to a contract, who rescinds it for any cause, must restore all that he has received■ under it” (Utter v. Stuart, 30 Barb. 20, and many cases cited ; Stoddard v. Grraham, 23 How. Pr. 518). There is no evidénce of even á tender by the plaintiff of the retransfer, &c., of even his own interests in the invention, patents, &c., to the defendant, and, of course, no tender of the interests in the King'slands and Mr. Delamater. “A tender imports not only a readiness and ability to pay money, or deliver over a deed dr conveyance, &c., but also the actual production of the thing to be delivered, &c.” . (Holmes v. Holmes, 12 Barb. 137). Nothing .like this was ever done or attempted, not even on the trial.
    III. Even if the agreements with the Messrs. Kings-land and with Mr. Delamater had never been made, or did not work a waiver or estoppel of the plaintiff’s present claim, yet he cannot recover. Because I. Outside of the said agreements, the plaintiff waived his character of money loaner, and became a partner and joint owner with the defendant - in the invention, the patents and improvements thereon, &c., and all rights thereunder. (1.) The plaintiff, during the years 1867 and 1868, procured patents of the invention, in his own name, as proprietor, and also in the name of the defendant and himself jointly, as inventor and proprietor, and went to Europe and wanted to obtain orders to sell the engine constructed by the defendant, and said he had embarked much money in the matter. Because: II. The evidence shows that plaintiff was even satisfied on the construction of the machine . . with the practicability of the same as a motive power, and therefore was not entitled, under the conditioned supplemental agreement of June 25, 1864, to any repayment. This is the language of the plaintiff, and his acts equally prove, that he was satisfied with the “ practicability of the machine as a motive power ”— and that is all the condition calls for. Even plaintiff’s own witness, Mr. Delamater, swears that the 'machine “ was practicable as a motive powers We submit that in no aspect of the case was the plaintiff entitled to recover for moneys advanced, under his first alleged 'cause of action.
    
    TV. Neither was the plaintiff entitled to recover on his second alleged cause of action, being for moneys alleged to have been expended by him in Paris, from December, 1867, to March, 1868. Because : I. His contract with the defendant provides, and the plaintiff agrees, that he will “devote all.the time and attention necessary to securing and protecting the rights of the parties hereto (the contract), and to such invention without any compensation therefor.” Because : II. The plaintiff in his stay in Paris was engaged in the duties he had assumed as joint owner and patentee of the invention, and did only what he had contracted to do, and what he knew it was his duty to do, in the joint interest of himself and the defendant.
    Y. Plaintiff admits that he did not fully comply with his agreement of March 26, 1864, nor as modified June 25, 1864, but shows that he governed himself by,- and intended to be controlled by, the agreements with the Messrs. Kingsland and Mr. Delamater. (1.) That he did not comply with agreement of March 26 and June 25, 1864, in that although he had agreed to advance five thousand dollars ; lie refused to advance beyond four thousand nine hundred and seventy-three dollars and seventy-nine cents, and also refused to retire). (2.) That he intended to act as a partner, &c., and govern his rights and claims by the agreements with the Messrs. Kings-land and Delamater, is apparent from all the testimony cited, and the plaintiff especially insists that such was the case when cross-examining the defendant. “ There must be a full performance to entitle a party to recover” (Pike v. Butler, 4 N. Y. 360, 363; McMillen v. Vanderlip, 20 Id., 486 ; Hoyt v. Hall, 3 Bosw. 42; Brown v. Weber, 38 N. Y. 187).
    
      Francis H. Dykers, in person, attorney, and A. J. Vanderpoel, of counsel for respondent, argued:—
    I. The clear intention of the parties to the contracts, as expressed therein, and as sustained by the proof, was that the defendant should have the benefit of the plaintiff’s capital to develop his invention, in exchange for which he agreed to shield the plaintiff from loss if it should turn out to be a failure. This was the more just and reasonable from the fact that the plaintiff knew nothing of electricity, and because defendant knew that many experiments had been made to produce a marketable motive power by electricity, all of which had failed, owing to the expense being too great. And the defendant himself considered the engine a failure, and abandoned it. So that it appears fully established by the proof that no engine such as was contemplated by the. contracts was ever constructed by defendant.
    II. The plaintiff never expressed himself satisfied with the practicability, as a motive power, of any engine constructed by defendant, and defendant does not testify to any such admission. Plaintiff was very hopeful of success, and as he relied on defendant for all his knowledge of the value of the engines, the representations made by defendant naturally encouraged those hopes. *
    III. The subsequent contracts do not operate as an estoppel to prevent the plaintiff from claiming the return of his advances from the defendant. 1. Both contracts recognize the engine as it then existed, as unfinished, and provide for the application of the money to be advanced to the development of the idea, and to the personal expenditures of the defendant, am ;+ w? s so applied, and no part of it was ever received )ov plaintiff. 2. The recital in the contracts of the facts showing in whom the title to the invention resided, and the proportions of plaintiff’s interest, was strictly true, in accordance with the terms of Exhibit 1, and did not exclude the idea that plaintiff might surrender that interest, in conformity with the terms of Exhibit 7. 3. The interest which the plaintiff was to have in any money arising out of those contracts could only be received when the conditions of Exhibit 7 had been complied with, viz., when the engine was sold for motive power. 4. A mere reference to the general rules governing estoppel will show that it is not applicable here (Welland Can. Co. v. Hathaway, 8 Wend. 480; Jackson v. Waldron, 13 Id. 178; Huntington v. Havens, 5 Johns. Ch. 29; Gaylord v. Van Loan, 15 Wend. 308; Sparrow v. Kingman, 1 Comst. 242 ; Borst v. Corry, 16 Barb. 136). 5. If any representation can be said to have been made by plaintiff in Exhibits A and B, to any one, which would operate as an estoppel, it certainly was not made to defendant, but to Kiugsland and Belamater. 6. The party who relies on the estoppel must show that he has acted on a belief of the facts to which it relates to his prejudice. Here there is not a word of any such proof (Dezel v. Odell, 3 Hill, 221; Lawrence v. Brown, 1 Seld. 394; Chautauqua County Bank v. White, 2 Id. 236; Brown v. Bowen, 30 N. Y. 519). There can be no estoppel in pais in behalf of one having full knowledge of all the facts (Baker v. Union. Mut. L. Ins. Co., 43 N. Y. 283; Shapley v. Abbott, 42 N. Y. 443.)
    IV. The second cause of action is fully sustained by the proof.
    V. The findings of the referee are all supported by the evidence, and none of the exceptions to the evidence are well taken, and the judgment should be affirmed with costs (Hoogland v. Wight, 7 Bosw. 394; Mann v. Wilbeck, 17 Barb. 388; Monell v. Marshall, 25 How. Pr. 425).
   By the Court.—Monell, J.

By the terms of the contract between the parties, the money which the plaintiff agreed to advance, and which he did advance, was to be repaid to him, if he was not “ satisfied” with the “practicability” of the engine, as a motive power.

It is not necessary to go the length of holding that this was so absolute a right, that the plaintiff could arbitrarily, and without reason, determine to be dissatisfied, and claim a return of his advances, without establishing by any evidence the impracticability of the machine.

The contract and the evidence show, that the defendant desired to avail himself of the pecuniary aid of the plaintiff, to develop the invention; and it was the design, as well as the agreement of the parties, that the plaintiff should be protected from any loss, which , might be caused by a failure of the experiment. Hence, in broad terms, the plaintiff was authorized to determine for himself, on the practical working of the engine, and its sufficiency as a motive power ; and upon a literal construction of the agreement he might claim, that he was to be the sole judge, and that his conclusion should be final, without furnishing any proof whatever, of any impracticability in the machine or its purpose.

But as has been said, it is not necessary to go so far. The referee has found, that several engines were constructed, none of which were such as was contemplated by the contract; that the plaintiff never expressed satisfaction with the machine as a motive power ; and that the defendant, himself, was dissatisfied with them, as they were constructed, each being set aside for another, and the last one condemned and abandoned by him. This finding, being supported by the evidence, established a sufficient ground for a rescission of the contract, and furnished a sufficient a reason for declaring the impracticability of the machine. Thereupon the plaintiff, prima facie, was entitled to repayment of his advances.

A point was made by the appellant, that the plaintiff had failed to show a performance on his part, of the contract, namely, that he had not advanced all the money he agreed to ; and had also refused to retire.'

The first ground was not taken at the trial, and it is now too late to be urged here. Besides, under a contract of this nature, the plaintiff had a right to stop the advances whenever he became satisfied with the insufficiency of the experimentand, therefor, he is not affected by the principle governing the performance of mutual amounts. The second ground arises, it is supposed, from .the relation of the parties under the contract with the Kingslands and Delamater ; but I can: not find anything in the contract of June 20 and 25, which authorizes the objection. There was no period fixed for the completion of the machines, or of the experiments with them ; nor was there any covenant for the plaintiff’s retirement. When he became dissatissatisfied, he could terminate the contract, and, probably, was bound to restore to the defendant, all that he had parted with to the plaintff. Had the latter, therefore, become possessed of any tangible interest in the invention, he was bound to restore it to the defendant, as a condition precedent to a rescission of the contract. All this he offered to do before suit was brought. But, if I understand the objection, it is, that the new relation of the parties, under the transfer to the Kings-lands and Belamater, furnished proof of an inability, and, therefore, it was equivalent to a refusal to retire from the enterprise, and of an election to continue under the new arrangement. I do not find any evidence, outside of the contracts themselves, which goes to sustain the objection, and I shall have occasion to construe those contracts upon another branch of the discussion.

The principal objection to the decision below is,, that the plaintiff waived his rights under the contracts, and is estopped from demanding a return of his advances by entering into what the defendant claims was a partnership and joint ownership with the Kingslands and Be Lamater.

The transfer to the Kingslands was of one-quarter, and to Be Lamater of one-eighth. These several transferees advanced, and agreed to advance, money for the expense -of experiments, and for advancing the invention and constructing the engines. In the transfer to Be Lamater, he undertook to have an engine constructed and tested, under the supervision of Ericsson, the electrician, for the purpose of developing, improving and putting the invention into practical operation. And to this arrangement the plaintiff was a party, and consented to it.

These several parties then became joint owners of the invention, and, inter se, were, probably, to some extent, partners in the enterprise. The different agreements seem to have contemplated a continuance of the joint ownership, and an ultimate joint engagement in the sale of engines under the invention.

1 But these subsequent arrangements did not merge or destroy the prior agreements between the plaintiff and defendant. There was certainly no expressed design of doing so, nor can any such design fairly be inferred from the transaction. The object of all the parties was to develop the invention, and they united in furnishing the necessary pecuniary aid for that purpose. In each instance, the profit or loss was dependent upon the success of failure of the experiment; and whatever separate or individual rights the parties, or any one of them, had; were not designed to be, nor were they, subordinated to, or in any manner affected by, the collected or aggregate rights of all.

The plaintiff, whose assistance had been exhausted, was not unwilling to allow the additional aid of others ; and in uniting in the transfer, he did nothing more than to consent to further attempts to develop the invention for the mutual benefit of all concerned. I do not perceive that the plaintiff acquired, under these transfers, any new or different interests, or other interests than such as depended upon the performance of the conditions contained in the first and second agreements with the defendant. And there is no where to be found an intention on the part of the plaintiff to merge those interests in the subsequent contracts.

Notwithstanding, therefore, that there was a qualified partnership, or what might have resulted in a partnership inter se, yet there was nothing in these subsequent transactions which was in fact, or in legal effect, an abandonment of the covenants and conditions in the original agreements.

Nor was there anything in these later transactions which can operate as an estoppel upon the plaintiff. He surrendered nothing. ' He held out no false lure to the defendant; nor did he acquire any interest that was not dependent upon the fulfillment of the defendant’s obligations. And it is not enough that a mere possible benefit, to which he consented, but which was thus dependent, can estop him from asserting his prior claim.

The parties agreed that De Lamater should construct the test machine, and so far, it may be said, he was substituted in the place of the defendant, and, possibly, to that extent, the conditions in the defendant’s agreements, depended upon the machine which De Lamater might construct. But if the latter, in constructing a machine, failed to satisfy the terms of the condition, by showing the practicability of the invention as a motive power, the parties were restored to all primary rights.

So the referee has found that the machine constracted by De Lamater was not satisfactory, and was condemned and abandoned by the defendant.

Upon such condemnation and abandonment, the parties were referred to their rights under the former contracts.

The second cause of action was sustained by the proof. The finding, therefore, that those expenses were paid or incurred at the instance of the defendant, was justified.

I have noticed all the exceptions which were urged on the argument or stated in the printed points, and do not find any error in the judgment.

It should be affirmed.  