Opinion
December 23, 1938.
Present — Hagarty, Carswell, Adel, Taylor and Close, JJ. Settle order on notice.
Action for specific performance of an agreement to reconvey the right, title and interest in and to certain letters patent in the event of breach of said agreement by the purchaser of rights in and to said patent. Judgment modified by striking therefrom the provisions decreeing the reassignment of an undivided one-half interest in said letters patent, etc., to the plaintiff executrix and awarding her a money judgment for $2,214.87; by inserting a provision dismissing the complaint so far as concerns the plaintiff executrix; by striking from the form of the assignment annexed to the judgment, the language effecting a joint assignment to those therein named, and by substituting therefor provisions for an assignment to Augustus Bertram Quick of an undivided one-half interest in the specified subject-matter. As thus modified the judgment is unanimously affirmed, with costs to the appellant as against the plaintiff executrix, and with costs to plaintiff Quick as against the defendant appellant. The contract which is the basis of the action of the plaintiff executrix is divisible. Her rights in respect of payments from the appellant are determined by recourse to paragraph 12 of the agreement of October 19, 1934. The right to payments under paragraph 11 terminated upon the death of her testator on August 6, 1936. The payments concededly made completely discharged the appellant's obligations on this interpretation of the agreement. The interest of plaintiff Quick is not that of a mere licensee. He is the owner of an undivided one-half of the right, title and interest in and to the letters patent, etc. The conceded default in payments to him entitles him to the character of reconveyance directed. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made.