
    The United States Aluminum Company, Appellant, v. The Calvert Lithographing Company, Respondent.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Contracts — Interpretation — Options reserved in contract to terminate or rescind.
    Where a contract, by which defendant agreed to pay an annual license fee for each of two certain presses on which it should use aluminum in any way, contained a provision that it might be canceled by the licensee bn giving two months’ notice, and the notice was given accordingly, such contract was thereby terminated though the licensee was using aluminum at the time upon another press not mentioned in the contract; and no action can thereafter be maintained under the contract to recover a fee for the use of aluminum upon the other press not covered by the contract.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, sixth district, borough of Manhattan, dismissing the complaint.
    Smith & Martin (Yorke Allen and Louis Dean Speir of counsel), for appellant.
    Richard T. Greene, for respondent.
   Giegerich, J.

I think the trial court was right in its disposition of this case. The contract provided that the defendant should pay “ $50 a year for each flat bed press and $150 per year for each rotary press on which it shall use aluminum in any way, being a total of $300 per year ”.

The contract is made on a printed form which, in its original condition, contained various blank spaces to be filled in, among others, the space in which the total of $300 was written in ink.

Further down in the contract, in another blank space, the presses, “ on which the license was granted ” are specifically described as “two (2) rotary litho presses manufactured by the Aluminum Plate & Press Company ”.

The contract also contains a condition that the licensee “on giving the licensors at least two months’ notice in writing to pay all sums due to the licensors ”, may terminate the contract. Such notice was given and no claim is made that any part of the annual royalty of $300', reserved in the license remained unpaid at the time such notice was given. It is claimed, however, that the defendant, at the time when the notice -was given, was using aluminum plates or presses other than the two specifically described and owed the plaintiff for such use and, therefore, was not in position to give notice of termination.

This contention seems to be placed chiefly upon the argument that the- contract provision for the payment of “ $150 per year for each rotary press on which it (the defendant) was using aluminum in any way ” is not limited to the two presses specifically mentioned and licensed in the contract, but is broad enough to cover any additional number. Such a claim is inconsistent not only with the portion of the contract above quoted, but also with another portion, where it is expressly stated that the defendant is licensed to use. the inventions and processes in question “on the power presses described below and on no others ”. From this, it is manifest that neither party could claim that the contract was intended to cover more than the two presses described.

It may be that the defendant was liable, in some unliquidated amount, for the unauthorized use of the inventions and processes on other- presses, but I do not think the contract intended that the licensee’s right to give notice of termination was to depend on the payment to the plaintiff of all amounts due for such infringements.

Such amounts would not be due from a licensee to a licensor, but from an infringer to the patentee.

All sums due under the license having been concededly paid at the time the notice to terminate was given, said notice was effective and terminated the contract.

The judgment should be affirmed, with costs.

Scott and Greenbaum, JJ., concur.

Judgment affirmed, with costs.  