Dobbins v. Cragin

Full title: DOBBINS v. CRAGIN et al.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Dec 21, 1891

50 N.J. Eq. 640 (Ch. Div. 1891)

50 N.J. Eq. 640

Opinion

12-21-1891

DOBBINS v. CRAGIN et al.

Mr. Archer, Mr. Elcock, Thomas B. Earned, and S. H. Grey, for complainant. Mr. Brewster, Mr. Johnson, Mr. Terry, and Lewis Starr, for defendants.

PITNEY, V. C.

Bill in equity by John B. Dobbins against Charles I. Cragin and others for injunction and accounting.

Mr. Archer, Mr. Elcock, Thomas B. Earned, and S. H. Grey, for complainant.

Mr. Brewster, Mr. Johnson, Mr. Terry, and Lewis Starr, for defendants.

PITNEY, V. C. The contest between the parties relates to the right to manufacture a certain soap, and to use certain trademarks in its sale in which the complainant's name occurs. The parties all reside in Philadelphia, and the contracts out of which the controversy arises were made and the litigation was first commenced there. The reason for transferring it to this state was that the defendant Cragin, together with other parties acting in his interest, was about to organize, or had organized, a corporation under the laws of the state of New Jersey, named the "Dobbins' Electric Soap Manufacturing Company," and proposed to vest in it a plant for the manufacture of soap which he owns and operates in this state, so that the corporation should continue its manufacture here. The articles of incorporation were filed July 3, 1890. The original bill was filed in this court August 7, 1890, and upon it, with the affidavits annexed, an order was made that the defendant show cause at a future day why an injunction should not issue, with interim restraint. That order came on to be heard on October 4, 1890, and at the hearing, the complainant expressing a desire to amend his bill, leave was granted, and an amended bill filed, and matters stood without change under the original bill and order until the cause was brought to hearing upon the amended bill, answer, and proofs. It is admitted by the defendant that the complainant was at one time the owner of the secret of manufacturing the soap in question, and had the sole right to make it, and to use the trade-marks in question, and that the defendant derived the right to make the soap, etc., and to use the trade-marks in its sale, from the complainant by certain written instruments, and the question is as to the extent in time of such right. The complainant contends that it was limited to a period of 20 years from March 17, 1869. The defendant, on the other hand, claims that the grant was unlimited in time. The bill, as originally framed, relied upon the language of the written instruments alone. The amendment consists of an allegation that the actual contract between the parties so limited it, and that, if the writings are capable of being so cons trued as to give an unlimited right to the defendant, then such construction would be a fraud upon the complainant, and ought not to be adopted.

The established facts are that the complainant was the original inventor of the particular combination which produces the soap in question; that previous to 1869 he had engaged largely in its manufacture, and had spent large sums of money in advertising it, and had thereby become seriously involved financially. He hud also adopted certain trade-marks which he used on the labels of the manufactured articles, and had caused them to be copyrighted under the federal statute. The defendant was agent for the sale of his goods, but was not possessed of the secret of making the soap, which was retained by the complainant in his own individual keeping. This being the situation, the parties made their first agreement, dated March 17, 1869, by which the complainant, in consideration of $5,936.09, of which $3,211.07 was then or prior thereto paid, and the remainder was to be thereafter paid, "bargained, sold, released, granted, and confirmed, and by these presents do bargain, sell, release, grant, and confirm, unto the said Charles I. Cragin all the stock of merchandise, stock in trade, and materials and articles mentioned and expressed in the schedule annexed, now remaining and being in and at the soap and blacking manufactory of the said Dobbins, situated * * *, together with the exclusive right, title, interest, and privilege of, in, and to the good-will and business of manufacturing, using, and selling the articles known as 'Dobbins' Electric Soap,' 'Dobbins' Electrie Boot-Polish,' 'Dobbins' Medicated Toilet Soap, 'and together with all the said J. B. Dobbins' right, title, and interest whatsoever of, in. and to all the prints, advertisements, wood-cuts, labels, cards, stencils, marks, designs, and descriptions used in the manufacture, preparation, use, and sale of Dobbins' said Electric Soap, Electric Boot-Polish, and Medicated Toilet Soap, which have been either copyrighted or otherwise heretofore used by said J. B. Dobbins; to have and to hold all and singular the said merchandise, stock in trade, articles, and materials unto the said Charles I. Cragin, to his only proper use and behoof, his heirs, executors, and administrators and assigns, forever, and to have and to hold all and singular the said good-will and business prints, advertisements, wood-cuts, labels, cards, stencils, marks, designs, and descriptions used in the manufacture and preparation, use and sale, of said Electric Soap, Electric Hoot-Polish, and Medicated Toilet Soap, as aforesaid, for and during the term and space of twenty years from the date hereof, unto the said Charles I. Cragin, to his only proper use and behoof, his heirs and executors, administrators and assigns, for said space and term of twenty years." (The italics are mine.) Then follows a contract on Cragin's part to pay the remainder of the purchase money by his promissory notes. This instrument was executed by the complainant only. Annexed to it is a schedule of the articles sold; also three several certificates of theclerk of the federal district court that complainant had deposited in that court three several titles of prints or trade-marks; and on each of these is a separate assignment by complainant to defendant of his right, title, and interest in the same for the space of 20 years. This grant was, on the 1st of May, 1869, assigned by Charles I. Cragin to the firm of I. Cragin & Co., composed of himself, his father, Isaiah L. Cragin, and one Westcott, which was formed on that day. Before that assignment, and on March 30, 1869, complainant and defendant entered into a further written agreement, inter partes, which briefly recited that of March 17, 1869, and also specially referred to it, and further recited that Cragin was desirous of employing Dobbins in the manufacture of the articles in question, and that without his services the purchase would be useless or of little value, and then provided that Cragin should pay Dobbins a royalty of 8 per cent. of the gross proceeds of all sales of the articles in question during the term of 20 years; that Dobbins should have the supervision and control during Cragin's term of the manufacture, and should receive as a salary 2 per cent. of such gross proceeds; that Dobbins should lease to Cragin the factory and grounds used for such manufacture, with all machinery, for the term of 1 year, with the privilege of 19 more, at a fixed rent. This contract was also assigned by Cragin to the firm of I. L. Cragin & Co., May 1, 1869.

It seems probable that the making of this contract of March 30, 1869, or some such a contract, was contemplated by the parties when the conveyance of March 17th was made, since, without the use of complainant's secret and his skill in its composition, the transfer effected by the earlier instrument would have been of little or no value to Cragin. On May 1, 1809. an agreement in writing was entered into between the complainant and I. L. Cragin & Co., being the third of the series, by which complainant assigned to that firm so much of the royalty reserved by the agreement of March 30, 1869, as might be necessary to pay certain drafts, amounting to about $17,000, accepted by the firm for said Dobbins, and whose payment extended over a period of more than two years. On October 1, 1869, the complainant entered into a second contract in writing with the firm of I. L. Cragin & Co., being the fourth of the series, which recited the three preceding agreements, also that the royalty of 8 per cent. and salary of 2 per cent. of the gross sales provided for in the agreement of March 30, 1809, had proven too onerous, and provided that Cragin & Co. should (1) cause to be discounted complainant's promissory notes, 36 in number, maturing one in each month for three years for $680 each, and charge the same in the monthly accounts between the parties; (2) should pay, or guaranty the payment of, the premiums upon two endowment policies upon the life of complainant, one of $20,000 and one of $10,000, held by one Love, a judgment creditor of complainant, as collateral to a judgment of $30,000, these premiums also to be charged against complain ant in his monthly account; (3) that Cragin & Co. should pay the monthly accruing interest on Love's judgment, and charge the same in the monthly accounts; (4) that when the lien of that judgment was released from the said factory Cragin & Co. should take from Dobbins a lease of the factory for the term of 10 years, and that the present lease should continue in force until such new one be executed; (5) the parties released each other mutually from all and any benefits accruing under the agreement of March 80, 1869, and, in lieu of the royalty of 8 per cent. and the salary of 2 per cent., 5 per cent. only of the gross proceeds of sales of the three articles heretofore mentioned shall be paid to the said John Robbins during the remainder of said term of 20 years from March 17, 1869; (6) complainant should instruct and teach Charles I. Cragin and one other person to be named by him the art and secret of making said Dobbins' Electric Soap, Dobbins' Medicated Toilet Soap, and Dobbins' Electric Bout-Polish, and when so taught and instructed complainant to be relieved from any obligation to give personal attention to the manufacture of those articles; (7) complainant should not, during the said term of 20 years, instruct any persons in said art or secret, or manufacture, for himself or others, any of said articles of manufacture thereinbefore mentioned; (8) that payments on account of the acceptances provided for in the agreement of May 1, 1869, and advances provided for in the previous clauses of the present agreement, should be paid out of the royalty of 5 per cent. therein provided for, and accounts to be settled monthly during the said term of 20 years; (9) complainant assigned to Cragin & Co. the royalty of 5 per cent., and all other choses in action or moneys in their hands, as security for the payment of any indebtedness arising out of the premises.

This statement of the substance of the several agreements entered into up to this date—October 1, 1869—shows that Cragin's rights under them were clearly limited to the term of 20 years from March 17, 1869, and no contention to the contrary was made by the counsel for the defendant. Reliance is placed for the unlimited extension of the term upon a fifth contract in writing, being the third between complainant and Cragin & Co., dated January 21, 1870. That contract is declared in the premises to be "supplementary to the articles of agreement made and executed October 1st, A. D. one thousand eight hundred and sixty-nine, between the said parties, and hereto annexed," and provides: (1) That J. B. D. doth covenant and agree "that he will not make, or assist in making, or cause to be made, directly or indirectly, for himself or any other person or persons, Dobbins' Electric Soap, Dobbins' Medicated Toilet Soap, Dobbins' Electric Boot-Polish, or any soap or soaps, or boot-blacking or boot-blackings, and that he will not instruct or give any information he may possess to any person or persons, without the written consent of said I. L. Cragin & Co. respecting the manufacture oruse of any of said articles." (The italics are mine.) (It will be seen that this article is a repetition of the seventh clause of the agreement of October 1, 1869, without the limitation of 20 years, and includes all soaps and boot-blacking of every kind, while the clause in the previous agreement was confined to the three articles previously therein mentioned, namely, Dobbins' Electric Soap, Dobbins' Medicated Toilet Soap, and Dobbins' Electric Boot-Polish.) (2) That said J. B. D. "releases and forever quitclaims unto I. L. Cragin & Co. all his right, title, and interest, claim and demand, in, to, and under the said agreement of October 1, 1869, and the agreements therein recited, except the covenant contained in paragraph fourth of the annexed agreement of October, 1, 1869, to be kept and performed by I. L. Cragin & Co., [which provides for the leasing of the factory from Dobbins,] which covenant on the part of I. L. Cragin & Co., and all of the covenants and agreements on the part of J. B. D. in said annexed agreement and those therein recited, and all the transfers and assignments thereby made, are to be and remain in full force and virtue." (3) Provides for the giving of certain notes of Cragin & Co., and payment of certain money in full consideration, viz.: 1. Cragin & Co. to assume the outstanding acceptances specified in the agreement of May 1, 1869. 2. To pay $1,000 in cash, and give their notes amounting to $16,000. 3. To surrender two notes of Dobbins, for $680 each, held by Cragin & Co. 4. To pay Ringwalt & Co. a debt of $2,422.80, which Dobbins owed them. This agreement is executed by all the parties, and then follows a receipt dated, as is the original, January 21, 1870, signed by complainant alone, wherein he acknowledges the receipt of the said promissory notes and cash provided for in the third paragraph of the agreement; and this receipt is, in turn, followed above the signature by this clause: "As a part of the foregoing written agreement, the said John B. Dobbins also hereby covenants and agrees with the said I. L. Cragin & Company that they may use his name upon and as descriptive of any soap or blacking they may hereafter make, whether such as now manufactured by them or not."

On the part of the defendant, it is contended that the first and second clauses of the body of the agreement, taken in connection with the license contained in the receipt just quoted, amount to a release to Cragin & Co. of all Dobbins' right and interest forever in the trade-secret and trade-marks in question, and to a perpetual license to them to use his name on any soap or blacking they might thereafter make. On the other hand, it is contended by the complainant's counsel that this agreement must be read as a supplement to, and in connection with, that of October 1, 1869, and that the 20-years limitation, so often repeated in the original agreement, must be construed as applying to each and every part of the supplement; that the word "not" used in the first clause—"will not make or assist in making"—does not convey the idea of unlimited time, but read, as it must be, as part of the agreement of October 1, 1869, clearly refers to the period of 20 years therein mentioned. And as to the second clause they contend that the mutter thereby released was not the complainant's right in remainder to use exclusively his process of making soap, and his name and trademarks, but simply and only his right to royalty under the previous agreements, as if a lessor should release to his lessee, not the land demised, but the rents reserved by the lease. And with regard to the clause in the receipt, they contend that the word "hereafter," in its surroundings there, means simply in the" time to come," —during the unexpired term of 20 years; and they comment upon the absence of any of the language ordinarily used by lawyers to convey a remainder with perpetual restriction.

In considering this con tract, it is observable at once, on its face, that it was framed and drawn by a lawyer, and with deliberation. It bears no marks of immature consideration or hasty preparation. If, then, as defendant contends, the minds of the parties had met, and the common intention was that complainant should grant to defendant the perpetual unlimited right so plainly granted for 20 years only, by the contract of March 17, 1869, we would naturally expect to find a lawyer employing the usual and appropriate language for that purpose which we find in the first agreement. One mode which I think would have suggested itself would be to recite or refer to the previous grant for 20 years, and then, enlarge it by such express, direct, and appropriate language as would leave nothing to inference or construction.

With this preliminary observation, and bearing in mind that the question just now is not what did the parties intend to say, but what did they mean by what they did say, let us examine the writing in detail. The first section, at first glance, appears to be a mere enlarged paraphrase of the seventh section of the agreement of October 1, 1869, with the limitation of time omitted; and the question at once arises, and is asked by defendant's counsel, why repeat the covenant in the latter agreement, except for the purpose of dropping the limitation of time? This question at once suggests the other,—if the object was to make the, covenant perpetual, why not use proper language? Why not, instead of saying merely," will not," say, "will never at any time hereafter forever?" But the object of the insertion of this first clause is easily accounted for by a comparison of it with its prototype, section 7 of the agreement of October 1st. Such comparison shows that the later covenant is enlarged so as to include, not only the three articles—Electric Soap, Medicated Toilet Soap, Electric Boot-Polish—covered by the previous covenants, but also "any soap or soaps, or boot-blacking or boot-blackings," or any article or articles, in imitation of or as a substitute for the three before-mentioned articles, "or any soap or soaps, or boot-blacking or boot-blackings." The importance of having such enlarged covenant is manifest whenwe consider that, under all the preceding contracts, complainant's sole and only source of income for his invention and labor was in the royalties he was to receive from the sale of the manufactured article, and hence his interest was of itself a protection to the defendants; but the effect of the new agreement about to be executed would be to destroy all that interest, and make him measurably indifferent as to the success of the defendants' venture. Hence the appropriate and very comprehensive covenant.

The force, then, of this first section in indicating that the complainant intended to grant, and the defendant supposed he was receiving, a grant in perpetuity, depends solely upon the force of the word "not" in the context above recited. It seems to me to be wholly insufficient for that purpose. It is never used in ordinary conversation, much less in a contract prepared with deliberation, to mark unlimited time. We always look to the context for the extent of the negative it declares. Here it is naturally limited by the text of the agreement to which its immediate context is declared to be a supplement and annex.

Coming, now, to the second section, it seems to me to need but little consideration to lead to the conclusion that it cannot bear the construction claimed by the defendant, and that the complainant's position as to it is sound. By it Dobbins releases simply and only his right in, to, and under the previous agreements, except the fourth paragraph of the agreement of October 1st, providing for the lease of the factory. Mow, those rights were simply and only a right to royalties and compensation for his services. These were compounded and paid for by a sum in gross under the third paragraph. Dobbins did not derive his right to manufacture this soap and use his own name as a part of a trademark in its sale, etc., from any of those agreements. Such right was not created or secured by, and did not depend upon, either of them. His rights were inherent in him before those contracts were made. The writings did, indeed, acknowledge in the most solemn manner that he was the owner of those rights. In fact, the agreements were all based on such ownership, but they did not create it. At the argument the very able and ingenious counsel for the defendant likened the agreement of March 17, 1869, and that of January 21, 1870, to the common law conveyance of lease and release. But the difference is manifest. In a lease and release of land the release is not of the rents reserved by the lease, but of the very land itself; not of the rights which the lessor had under and by virtue of the lease, but of his rights in the land which he owned before the lease was made, and upon which it was founded, and which ownership the lessee, by accepting the lease, recognizes and admits. So plain to my mind is this that I cannot conceive that the counsel who drew this agreement, presumably with the previous ones before him, could ever have adopted the verbiage of this second clause as a means of granting to the defendant the rights in question.

It is further suggested that, as no royalties were reserved to complainant by the contract of March 17, 1869, there was no interest under it which he could release, and nothing upon which the verbiage of this second section could operate, unless it be applied to the right to resume the use of his name, etc., at the end of the term; and hence it is argued that, in order to give effect to the language, it should be presumed that the right to be released was the right to resume the use of the secret and name. But the paper of March 17, 1869, contains a covenant on the part of Cragin to pay a sum of money, being the balance of the purchase money therein mentioned, and upon this covenant the release could operate. Moreover, the two writings of March, 1869, show on their face such an intimate connection as to justify their being treated as one. Besides, I do not know of any rule of construction which would justify a court in holding that an expression like this now in question, which expressly releases rights arising under a certain instrument or instruments, should be construed as releasing rights which did not and could not arise under that instrument, although there were no rights arising under it which could be released. The maxim, ut res magis valeat quam pereat, does not reach far enough to cover such a case. The third paragraph merely provides for the compensation for the royalties released by the second. This is the whole of the agreement as originally prepared, and as finally executed by all the parties, and the conclusion is that it wholly fails to grant to defendant the rights now in question.

But there remains to consider the receipt which follows the main agreement. This, after stating a specific receipt for the payments provided for in the agreement proper, contains the clause above quoted, viz.: "As a part of the foregoing written agreement, the said John B. Dobbins also hereby covenants and agrees with the said I. L. Cragin & Company that they may use his name upon and as descriptive of any soap or blacking they may hereafter make, whether such as now manufactured by them or not." The defendant relies upon the word "hereafter" in it as indicating a grant in perpetuity to defendant to use his (complainant's) name upon any and all soaps and blackings the defendant may thereafter manufacture. Now, I think the word "hereafter," used as an adverb, does not necessarily refer to unlimited time. Like the word "not," it is not used in common parlance for such a purpose. It is not a synonym for "forever." It rather indicates the direction in time merely to which the context refers, and is limited by it. The duration of the "hereafter" is usually expressed by some other word, or is inferred from the context. In fact, the mind does not rest satisfied with the use of the word "hereafter" in such case, but naturally inquires, and expects to hear, in addition, how long the hereafter is to last. This is illustrated by its use in deliberate written agreements. I do not recollect to have ever seen one prepared by an expert in which the word "hereafter" was relied upon alone to expressperpetuity, but where such is the task in hand it is always accompanied by "forever" or other word definitely expressing perpetuity. To illustrate: Suppose the clause now under consideration had been introduced, as well it might have been, into the first agreement of March 17, 1869, would any person for a moment contend that it gave the defendant the right to use the complainant's name for a longer period than 20 years? I think there can be but one answer to the question. No such force could have been given to the word "hereafter," but it would have been naturally and necessarily limited to the term of 20 years mentioned in the grant itself. But if the word, used as an adverb, has, from its own inherent force, the effect, like the word "forever," of conveying the idea of perpetuity, then 1 do not see why it should not be so considered, even if found in connection with a grant expressly limited in time. Now, how does the case as it actually stands differ from that just supposed? The contracts of March 17th and 30th were carried forware and consolidated, with modifications, into the contract of October 1st. The latter contract changed the amount and mode of payment of the royalty, but left the limitation of time upon the grant unchanged and expressly recognized. This last contract was, in substance, made a part of the contract of January 21 1870. now under consideration. We have seen that the main supplementary contra".! made no change in its original, in the matter of time, but merely changed the mode of payment of the royalties thereby reserved. Now, when we come to construe this little supplement to a supplement, we naturally, and, as it seems to me under the circumstances, necessarily, look to the October contract, as well as to that of January, for the context to answer the inquiry, how long does this indefinite "hereafter" extend? The fundamental rules of construction not only permit but require us to take into consideration every part of the writing in order to ascertain the meaning of each. 2 Whart. Cont.§ 662; Barton v. Fitzgerald, 15 East, 530; 2 Pars. Cont. (Ed. 1866,) p. 501; Browning v. Wright, 2 Bos. & P. 13. The place in the contract which this clause occupies, and its scope, should be noticed in this connection. After the contract had been prepared, and, as far as appears on its face, after it had been executed, but before the consideration had been paid, it would seem to have occurred to the defendant that it might be important for him and his associates to have the right to use complainant's name on soap and blacking not made according to complainant's recipe, and express permission so to do was asked and granted. This is the only explanation which can account for its being inserted in the mere receipt, since, if it had been intended to use it as a means of acquiring a perpetual license in pursuance of a previous verbal agreement to that effect, it is difficult to conceive how it could have been omitted from the body of the agreement.

Further, I think the latter part of the second clause is not without significance in this connection. It expressly provides that "all the covenants and agreement? on the part of said John B. Dobbins in said agreement hereto annexed, and the therein recited agreements, and all the transfers and assignments thereby made, are to be and remain in full force and virtue." Now, if the present agreement was to have the effect of assigning and transferring to Cragin & Co. all the right and interest for all time of Dobbins in the trade-secret and trade-marks, and the use of his name, why expressly declare that a transfer and assignment for the limited period should be and remain in full force and virtue? The inaptness of the frame of the agreement, and the language used to accomplish the result claimed, is well illustrated by a reference to that part of the answer which sets out the defendant's claim in this behalf, viz.: "And this defendant expressly charges that by said agreement of January 21, 1870, the said complainant bargained, sold, assigned, and set over unto the said I. E. Cragin & Co., absolutely, all his right, title, interest, claim, and demand, whatsoever, that he had or claimed to have in the invention, discovery, and recipe of Dobbins' Electric Soap, Dobbins' Electric Boot-Polish, and Dobbins' Medicated Toilet Soap, and all the said complainant's claims, rights, and ownership in the trade-marks, designs, stencils, cards, labels, and descriptions, and all other rights appertaining to the manufacture of said articles." And again, by a comparison with the explicit and complete language above quoted of the assignment of March 17, 1869. This inaptness was pointed out on both the occasions of the discussion of the construction of this contract before the court, and counsel for defendant were more than once asked the question, "Why, if the draughtsman of this agreement meant to convey the reversion, did he not say so in plain language?" and no answer at all satisfactory to my mind was made.

There is still another element in the case which seems to me not without weight. By the terms of the October agreement the defendant came under heavy obligations to advance money for the complainant and as his surety, for which he had no other security than the complainant's interest in the prospective royalties. This liability amounted to at least $40,000. The effect of the main agreement of January 21, 1870, was to wipe out this liability, and to extinguish all Dobbins' right to royalties for the remainder of the term of 20 years. The writings do not disclose how much these royalties had amounted to from March 30 to October 1, 1869, but we are justified in inferring that they were considerable; otherwise the defendant would not have been willing to assume the heavy obligations just referred to in the October contract on the strength of them. These royalties were compounded for a sum of less than $20,000. This is all provided for in the body of the agreement, and, as I have interpreted it, without in any wise affecting the complainant's right to assume control of his property at the end of the term. The position in the writing of the clause now under considerationindicates that, whatever may have been its object, It was an after-thought, not taken into consideration in concluding the agreement contained in the principal writing. Now, I find it difficult to believe that complainant at this stage of the negotiation, and without any further consideration, would have coolly signed away his reversionary interest; and quite as difficult to believe that the defendant, if at that stage he had induced complainant to transfer it to him, would have been content to have it witnessed by the language in question. I conclude, then, that the written contract does not result in a grant or license from complainant to defendant in perpetuity. It must be construed as limited to the term of 20 years mentioned in the first and subsequent agreements.

It was conceded by defendant that, if such is the true construction of the contract, then complainant is entitled to the relief prayed for, and I might well stop here. But the complainant goes further, and alleges that the real and actual contract assented to by him, and which he agreed should be put in writing, was in accordance with this view; that he never agreed to extend the period of 20 years, and did not understand the written contract to do so; and that, if it is capable of such construction, it is a fraud upon him, and should not be enforced by this court. This allegation in the bill is met by positive allegation in the answer that the real and actual bargain between the parties was as defendant alleges, and that the contract was designed and framed to carry out that bargain. Upon this issue much evidence has been taken, and I feel it to be my duty to state the effect of it on my mind, so that, upon a review of my results by a higher court and possible disagreement with my views of the effect of the writings, the parties may have the benefit of my view of the evidence on this point. A preliminary point was made by the defendant's counsel that the bill does not contain sufficient allegation in this behalf to warrant the court in reforming the contract, and seasonable objection on that ground was made to the proofs adduced. The allegations of the bill in that behalf are, first, that on January 21, 1870, complainant, by agreement of that date, released to the defendant all his rights Under the previous agreements, viz., a royalty of 5 per cent., etc.; that defendant first caused to be prepared, and asked the complainant to execute, an agreement which did expressly assign the reversion, which paper complainant declined to execute on that ground; and then alleges that if the contract afterwards executed can be interpreted to mean that he conveyed his reversionary interest, then it was a fraud upon him, inasmuch as he was assured at the time of its execution that it merely released his royalties during the term. It further alleges that he was asked to assent to and sign the contractual clause in the receipt on the suggestion of the defendant that he might, during the term of 20 years, desire to use complainant's trademark on some other soap or blacking, and that he desired the insertion of the clause in question for that purpose, and that he signed the document with that understanding, and that, if it can be construed as giving the defendant the right to use his name forever, it is a fraud upon him, because contrary to his agreement. Now, if the complainant was seeking affirmative relief, based upon the agreement evidenced by this writing, and was asking to have it actually reformed because, in some particular, it did not accord with the actual contract, the objection of lack of proper allegation might—I do not say it would—have some weight. But such is not the case. The present situation is clearly distinguishable from such. The complainant here is asking relief based solely upon his original title, and he shows that the defendant is in possession under an agreement for a term of years, which he alleges has expired, and, strictly in accordance with the rules of equity pleading, he anticipates a defense to be set up under the writing in question, and meets it by alleging that, if the contract is capable of the construction claimed for it by the defendant, it is inequitable that he should be permitted to set it up, because such was not the understanding and agreement of the parties. The prayer is, in substance, not to reform the contract, but that the defendant may not be permitted to contend that it has the signification in question. And just here it is important to observe that the complainant in this behalf sets up what amounts to a unilateral mistake merely, viz., that the complainant did not so understand the contract, and did not so agree, and therefore the contract should not be so enforced against him. His prayer, in effect, is to rescind to that extent, and not to reform. The distinction between such a case and that of the actual reformation of the writing, and its enforcement in accordance with the agreement of both parties, is important. Again, it is objected that there is no direct allegation of fraud practiced by the defendant. The allegation, in substance, is that the intention and agreement of the parties was that complainant should release his right to the royalties only, and that defendant might use his name and trademark on other articles than those specified in the agreement, and that, if the writings are capable of a different construction, then it is a fraud for the defendant to set up such construction. This is, in substance, charging a mistake, and that it will be a fraud in the defendant to attempt to take advantage of it. I think the allegation is sufficient.

Certain facts are either admitted or so thoroughly established by the evidence as not to be disputed. The first three agreements, viz., those of March 17, March 30, and May 1, 1809, were prepared by Mr. J. Warren Coulston of the Philadelphia bar, who in their preparation acted as the counsel of both parties; but in the preparation of the last two agreements—that of October, 1869, and that of January, 1870 —Mr. Cragin was represented by Mr. George L. Crawford of the Philadelphia bar, and the complainant was represented by Mr. Coulston. The agreement of October,1869, was drafted in rough by Mr. Crawford, and redrawn and engrossed in the office of Mr. Coulston. The agreement of January, 1870, was drafted by Mr. Crawford, and engrossed by a Mr. Garwood, a clerk of the defendant. The agreements of October and January were both executed in duplicate, and the engrossed copies of the latter agreement were left blank as to dates, and in that condition they were sent to Boston, where Mr. I. L. Cragin resided, and were executed by him there in that condition, and returned to Philadelphia, and were then, on the 21st day of January, executed by all the parties on the same day, and the dates were all inserted by Mr. Warren Coulston, but whether the receipt was signed at the same time that the body of the agreement was signed is a matter of dispute. The parties and their counsel, and the defendant's clerk, Garwood, were all examined as witnesses, and in the following order, which is of some importance: First, Mr. Coulston; then thecomplainant, Dobbins; then the defendant Cragin; then his clerk, Garwood; then Mr. Crawford; and the complainant was called in rebuttal. With regard to the circumstances under which, and the object for which, the important contractual clause in the receipt attached to the agreement of January 21, 1870, was introduced, the parties are in substantial accord. Mr. Coulston swears that after the agreement had been executed and the transaction had closed Mr. Cragin came back to his office, and said that he had no receipt for his money; that he wanted Mr. Dobbins to agree to the additional matters that were put in the receipt; that is, in the first place, that in case Dobbins' Electric Soap ceased to be a popular brand, and they (Cragin & Co.) might want to call Dobbins' Soap Dobbins' something else, to use Dobbins' name for that purpose, and that he agreed to; and that the receipt was prepared accordingly, and he consented that Mr. Dobbins should sign it; that he understood it to be "a simple agreement that, for the balance of the term of twenty years, in case Dobbins' Electric Soap was not popular, and they wanted to call it Dobbins' something else, —Dobbins some other kind of soap,—that they would have the power to do it during the term of twenty years only ;" that "it was no extension of time whatever;" and that there had never been in his presence, in connection with the execution of that agreement of January 21st, any question or discussion as to the extension of the defendant's privilege beyond the term of 20 years. Complainant, Dobbins, also swears that after the agreement had been executed, the receipt was spoken of, prepared, and signed by him, and that the clause in question was inserted in compliance with the request made of him by Mr. Cragin, who suggested that he (Cragin) might thereafter want to use Dobbins' name on some other kind of soap, and asked him if he had any objection to his so doing, and he said, "No;" and that he did not notice its form, but left that to his counsel. The defendant Cragin swears as to the clause in question substantially, as I understood his evidence, to the same effect as to the manner and occasion of the introduction of the clause in question into the receipt. He says that after the drawing of the agreement, but before its execution, this matter in question was thought of, and it was agreed that" we could use the name on any other soap we might make.' 'He did not swear directly, nor is it inferable from his testimony, that the clause in question was inserted for the purpose of enlarging the time for which he would have the right to use Dobbins' name. He does, however, swear that the body of the agreement and receipt were both executed at one time, and that is all the substantial difference between his account and that of complainant and Mr. Coulston.

Now, it seems to me that I might well stop here in the consideration of the parol evidence, which, as I have said, quite forbids the idea that this contractual clause in the receipt was inserted for the purpose of enlarging the defendant's right in point of time, but for an entirely different purpose, and, if so, then it follows that if, by peradventure, it may be considered as so enlarging the time, in so far as it does so it does not express the agreement of the parties, and it is inequitable for the defendant to make such use of it. But waiving this consideration for the present, I proceed with the evidence.

It further clearly appears that Mr. Crawford drew the agreement of January 21, 1870, from a written memorandum called at the hearing a "letter of instructions," prepared by Mr. Cragin, and which has been preserved and introduced in evidence. That letter, without date, address, or signature, is as follows: "Dobbins to bind himself, heirs, executors, and assigns, never not [sic] to make or be interested in making Dobbins' E. Soap, M. Toilet Soap, or E. Boot-Polish, or any other soap, toilet soap, or preparation for boots or leather, or any substance to be used as a substitute therefor, under his own name or any other name or trademark, or with no name or trademark, for himself or for any one else, either directly or indirectly, and never to give to any person or persons any information he may possess in regard to the manufacture or use of any preparation or substance whatever, used, either directly or indirectly, for washing purposes, or for leather in any way. (We want this strong as possible, to cover all possible contingencies, as he has sold to us his entire right, without reservation of any kind. He releases all his claim against us for royalty and advances upon his notes and the payments of premiums or interest for Love's a/c. He releases us from every obligation in the articles of agreement of April 1 & Oct. 1st, excepting the one to rent the factory at 4,800 per annum for 10 years, and to bind himself as above, in consideration of our paying the drafts we accepted May 1st as they become due, and surrendering the same to him. We are to give him our notes for 16,000, and 1,000 in cash on the execution of the papers." This so-called "letter of instructions" remained in the possession.of Mr. Crawford from the time of the execution of the papers until in May or June, 1890, when it was handed by him to the defendant Cragin. Mr. Crawford swore that the erasure of the word "not," and the writing in its place the word "never," was in it at the time he laid it away, immediately after the contract was drafted, and he thinks it was there at the time he actually made the draft; though he was not able to explain to my satisfaction why, if it had been there, he used the word "not" instead of "never" in the first clause of the contract of January 21, 1870, which is, in substance, a paraphrase of all that part of the letter of instructions which precedes the parenthesis. What was intended to be included in the parenthesis is not clear, as its close is nowhere marked, but I think it probable it was intended to be confined to the sentence which it begins. Independent of the erasure of the word "not" and the writing over it of the word "never," there is little in this paper to indicate any idea of perpetuity except what follows immediately after the mark of parenthesis, namely: "We want this strong as possible, to cover all possible contingencies, as he has sold to us all his entire right, without reservation of any kind." And this clause was probably understood by Mr. Crawford as being interpreted and modified by what immediately follows it, viz.: "He releases all his claim against us for royalty, and * * * from every obligation in the articles of agreement of April 1 & October 1st, excepting the one to rent the factory." And he evidently construed the words, "all his entire right without reservation," as referring to all his rights under the previous agreements. This last part of the letter of instructions was incorporated in the second clause of the agreement of January 21, 1870. As it appears as a matter of fact that Mr. Crawford made one draft of the agreement of October 1, 1869, and as that draft recites the grant of March 17, 1869, and the subsequent agreements, it appears conclusively that he was familiar with the contents of the earlier agreements, and with the express limitation of the term to 20 years contained in them. It must therefore be that he did not construe the letter of instructions as providing for an extension of the time. This letter of instructions also shows that the provision so often referred to in the receipt annexed to the contract of January 21, 1870, was an after-thought, and was inserted for the purpose and under the circumstances stated by the complainant and his witness. To hold otherwise would be to charge Mr. Cragin and his counsel, Mr. Crawford, with a conspiracy to practice a fraud upon Mr. Dobbins; for, if we assume that the body of the contract was drawn with the view to release Dobbins' rights under the contract only, and to prevent him from using his name in any manner so as to come into competition with Cragin during the term of 20 years, and the idea then suggested itself to Mr. Cragin to procure from Dobbins a release of the reversion of his right to use his name after the expiration of the term of 20 years, and he intructed Mr. Crawford to insert a clause for that purpose in the receipt, then I cannot understand why it should have taken the particular form it did, and have been asked for by Cragin, in the manner in which he swears that it was asked for, unless that verbiage and that mode of procuring Dobbins' signature to it was adopted for the purpose of procuring a grant of the reversion from Dobbins without his being aware that he was making such grant. It also shows that Cragin is mistaken in swearing that the privilege to use Dobbins' name on other soaps and blackings was granted in connection with, and in consideration of, his giving Dobbins a larger moneyed consideration than was at first agreed upon, viz., $16,000 in notes, and $1,000 in cash, and written in the memorandum of instructions. He swears that after the memorandum of instructions was written and sent to Mr. Crawford, and while the agreement was in preparation, Dobbins succeeded in inducing him to enlarge the consideration by adding the matters actually inserted in the third clause of the agreement in addition to those mentioned in the memorandum of instructions, and that at the same time that Cragin & Co. so enlarged the consideration Dobbins agreed that Cragin & Co. might use his name on any other soaps they might make, etc.; but he fails to explain why, if these matters were in fact contemporaneously agreed upon, they were not all alike put in the body of the agreement, and why he should instruct his own counsel to insert in it that part of the alleged contemporaneous agreement which made against him, and omit that part that made in his favor, and leave it to be inserted in the supplement or receipt. I think these circumstances quite conclusive on this point.

Mr. Crawford has an impression that the agreement, with the receipt proper, was drafted by him all at one time, because he says that was his mode of drawing such an agreement. He says that it was his habit to annex a separate receipt to such an agreement at the end of the agreement proper, after the testatum clause and the signatures of the contracting parties; and he has an impression that after the draft of the agreement, with the receipt proper, was so prepared, and before it left his hands for engrossment, the additional matter was written by him upon the instruction of Mr. Cragin. So far, and taking into consideration as well the letter of instructions itself as the evidence of all the parties, I think the evidence tends to confirm complainant's contention as to what the actual contract was, and what its true construction is. There are various matters testified to on either side upon which the parties are not in accord, and quite flatly contradict each other. Mr. Coulston swears, in effect, that the negotiations preliminary to the completion of the contract of October 1, 1869, were conducted largely through him, and with his aid, up to, or nearly up to, the time that the parties finally agreed upon all its numerous terms; or. as he expresses it, until "Craginhad gotten rid of Mr. Dobbins in the factory, after he had instructed the parties whom Mr. Cragin wanted instructed," and had "agreed to reduce the royalty under the terms and conditions mentioned in that agreement of October, 1869, and at that time, when the royalty was reduced, the salary was dispensed with entirely, because Mr. Dobbins went out of the factory," (by which he means that after the negotiations for the contract had so far advanced that the result would be that, after its execution, Mr. Cragin would be able to dispense with the further presence of Mr. Dobbins in the factory, and not that that had already been accomplished, but only accomplished in prospect.) "Then it was," says Mr. Coulston, "that Mr. Cragin asked me in the entry of my office whether I could not induce Mr. Dobbins to even get rid of these royalties, and sell out to him forever; and I declined to do it, and Mr. Dobbins declined to do it." Mr. Coulston swears that he resented that proposition on the part of Mr. Cragin, and declined further to act for him in the affair; and thereupon Mr. Cragin employed Mr. Crawford, who made a very rough draft of the agreement of October 1st, which has been preserved and exhibited, and which, as before remarked, was afterwards engrossed in Mr. Coulston's office. This proposition to Mr. Coulston, Mr. Cragin denies in toto. But I am forced to believe that Mr. Coulston's evidence in this behalf is substantially true. It appears that he is probably mistaken in some of the matters of detail to which he has sworn, but I think they are in the main non-essential matters; and all of his distinguished brethren at the Philadelphia bar, who argued this cause so ably on behalf of the defendant, bore what appeared to be cheerful testimony to the very high standing of Mr. Coulston at the bar, not only as a lawyer, but as a gentleman of unblemished integrity, and who would not knowingly prevaricate, much less invent a story of this kind out of the solid. They attack his memory, and not his integrity. Mr. Coulston swears that he notified Mr Dobbins of this desire on the part of Mr. Cragin, and that, knowing Cragin's desire, and Dobbins' disinclination to sell the reversion, he was on the alert in the matter of the execution of the January agreement, and that throughout the preliminary negotiations, and the actual execution of the contract, he heard nothing from anybody about a conveyance of the reversion, or a binding of Dobbins beyond the 20-years term, but that the sole purpose of the contract was to compound for and release the royalties.

One of the matters in which Mr. Coulston is alleged to be mistaken in his memory is as to his having drawn, as he swears he did, the agreement of October 1, 1869; and he is confronted with the draft of it in Mr. Crawford's handwriting. But an examination and comparison of this draft with the actual contract shows such numerous and extensive changes, not only in the verbiage, but also in the arrangement of the clauses, and, in some degree, in the substance, as show that they were made by a practiced hand, and not by a mere clerk or copyist. There is no evidence that Mr. Crawford made more than the one draft; and I conclude that Mr. Coulston is accurate in his memory that he did make a draft which was the final draft of that agreement, though, no doubt, he had Mr. Crawford's rough draft before him as a study.

It is said that he is also mistaken in swearing that the receipt was added after the contract had been executed by all the parties. Mr. Crawford did not participate in the execution, and never saw the engrossed copies. He has an impression that his draft included all that was finally signed, but it is a mere impression, and of very little value under the. circumstances. Garwood, who was then about 18 years of age, swears that he engrossed the papers all at one time, but be is unable to explain their peculiar physical condition. They are written on ordinary legal-cap paper, each sheet of which contains two leaves and four pages, and in each copy the body of the agreement and receipt proper, ending with the words, "up to the present date, "cover a single sheet of two leaves and four pages, leaving unused three lines at the foot of the fourth page. These unused lines are marked off with waving pen-made lines, and the contract part of the receipt beginning with the words, "As a part," is written wholly on a fifth page. This feature indicates that the fifth page was written at a time subsequent to the writing of the previous pages, and in the absence of those pages, and the witness was unable to explain why, if written continuously, he left those lines unused. The original draft, if produced, might throw light upon the matter. Another circumstance is that the agreements were sent to Boston for execution by Isaiah L. Cragin, and it is not likely that they were so sent without first being submitted to Mr. Coulston,—in fact, Coulston is positive on that point; and it may be that the matter on the fifth page was agreed to and prepared during their journey to and from Boston, and added on their return; and it may be that this circumstance, known to Mr. Coulston at the time, has, after the lapse of 20 years, become confused in his mind with the actual execution of the contracts by all the parties. He admitted that they must have been executed by all the Philadelphia parties on the same day.'

Complainant insists, and offers evidence tending to show, that the defendant has the original draft of this agreement, and he called for its production. The defendant denies that he has it. This leads to an examination of the proof as to the existence of this draft, including, as it does, occurrences taking place within two years past,—a part of the case which I would gladly omit. Shortly after the execution of the contract of January 21, 1870, the relations between Coulston and Dobbins ceased, and they never met until just before the commencement of Dobbins' suit in Philadelphia, and then only in the office of Dobbins' counsel, whither Coulston had gone as counsel for Cragin to try to effect a settlement of the controversy. In the meantime Coulston, in 1875, became, and continued from thenceforward to be, the stated counsel of Cragin, under an annual retainer, and also his familiar and intimate friend. About September 1, ]889, six mouths after the expiration of the 20-years term created by the deed of March 17, 1869, and before any demand had been made on Cragin by Dobbins, Coulston was about going to Europe to promote the sale to an English syndicate of a tobacco factory property belonging to one of his clients, and, at Cragin's request, undertook to try to sell Cragin's soap business. A letter written by him at that time proves, and he frankly admits, that the circumstance that Cragin held for a term of 20 years only, had quite, for the moment, escaped his memory. No sale was effected, and on his return, about October 1, 1889, Mr. Cragin applied to him to conduct proceedings for the formation of a corporation in New Jersey to which he (Cragin) might sell and convey his factory, good-will, and trade-marks. Then Mr. Coulston says his memory was awakened as to the transactions of 1869 and 1870, and he called for the contracts, and on examining them at once advised Mr. Cragin that his right had expired, and that he should see Mr. Dobbins and procure an extension. In that condition matters rested during the winter of 1889-90, and until some time prior to June 1, 1890, at which time Mr. McKinlay, of the Philadelphia bar, wrote Mr. Cragin a note on Dobbins' behalf, demanding compensation for the use of his name and trademark for the past 15 months. I stop here to say that the conversations between Mr. Coulston and Mr. Cragin in reference to these matters were testified to by Mr. Coulston only after the seal of professional confidence had been expressly removed by Mr. Cragin. Before Cragin received McKinlay's letter he had heard that Dobbins was selling soap, and, thinking that he had no right to do so, consulted Coulston on the subject, and thus the question of the extent of Cragin's rights was again discussed between them, and resulted in the reiteration of Coulston's opinion that Cragin's right had expired. Cragin expressed himself as very much surprised, and, according to Coulston's account,—which I follow for the present, —he brought to Coulston the memorandum of instructions above set out, and concealed, as Coulston swears, the fact that he had procured it from Crawford, and stated to him that he (Coulston) had drawn the agreement of January 21, 1870, from that memorandum, and had made a mistake against him. Cragin, in not making it strong enough to pass the whole title, if his (Coulston's) opinion was reliable that the papers did not pass the whole title. Coulston manifested irritation at this, and denied that he had ever seen the memorandum, or that he had drawn the contract, and insisted that Crawford had drawn it, stated that it was not so strong in Cragin's favor as the letter of instructions, and then pointed out the alteration of the word "not" to "never," and that the agreement had avidently been drafted before the alteration in the letter of instructions, and hint ed that the alteration had been made, at a later date. The interview ended unpleasantly. The next day (still following Coulston's account) Cragin came in again, and said to Coulston that he had something to show him that would please him, and prove that he did not prepare the January agreement; and then produced the original draft of that agreement in Mr. Crawford's handwriting, and admitted that the memorandum of instructions had come from Crawford's possession. This last circumstance further offended Mr. Coulston, for the reason, as he swears, that it showed that Cragin had deliberately deceived him the day before. This interview also ended unpleasantly, and, according to Mr. Cragin's account of it, Mr. Coulston became very offensive. Shortly after this Cragin received McKinlay's note, and then immediately went to Coulston to secure his services in defense of the threatened suit. Coulston advised him not to employ him, because his opinion was, as he already knew, against his right; but Cragin insisted upon securing his services, and gave him $2,500 on account of his proposed services, which Coulston swears he accepted only upon condition that his services should be confined to securing a compromise, he being unwilling to put himself in a position where he might be called upon to testify in a suit between the parties, with Mr. Cragin's money in his pocket, and he reiterated his opinion that the case on the papers was against Cragin. This understanding as to a compromise was so far carried out that authority was given by Cragin to Coulston to offer Dobbins' counsel $25,000 in settlement, and negotiations continued till about the 1st of July, 1890, when the bill was filed in Philadelphia, during which Mr. Cragin had retained, in association with Mr. Coulston, Judge Brewster, Mr. Johnson, and Mr. Terry. The bill in Philadelphia was filed about the 1st of July, and then, as Coulston swears, he, by Cragin's request, and with the consent of his associates, the attempted compromise having failed, made an agreement with Dobbins counsel to let matters stand as they were until fall, and then a few days later Dobbins' counsel complained that Cragin had incorporated Dobbins' Electric Soap Company in New Jersey, which they considered a breach of the agreement for the stet processus, whereupon he, on July 11th, returned his retainer and retired from the case.

Mr. Cragin's account of the interviews in question is quite different. He says that when, in the fall of 1889, he was called upon by Coulston for the contracts in connection with the proposed formation of a corporation, he handed him all of the contracts except that of January, 1870, which had become separated from the others and temporarily mislaid, and that upon those Coulston told him that his right had expired. He then, as he says, declared that there was another contract, and that the next spring, before Dobbins had made any claim, he searched for and found the contract of January, 1870, and took it to Mr. Coulston, and that Coulston, upon viewing it, became angry, excited, and very offensive, and said that he (Cragin) had no case, and that he (Coulston) had not drawn the paper, although Cragin had not charged him with having drawn it; and that finally he (Cragin) said he believed Crawford had drawn it, and he swears that he did not then have the memorandum of instructions, but procured it from Crawford subsequently, and took it to Coulston. He says that Coulston in his memory has confounded the bringing to him (Coulston) by Cragin of the agreement of January, 1870, with the bringing to him of the memorandum of instructions, and that his wrath and anger arose in connection with an inspection of that agreement, although he (Cragin) did not charge him with having written it, nor with having made a mistake against him, (Cragin.)

Now, I find it difficult to adopt Cragin's version for two reasons. One is that it does not in the least account for Coulston's excitement, anger, and offensive language and behavior. The parties had been on the most friendly and intimate terms, and the story related by Cragin fails to disclose the least cause for Coulston's conduct, and, when pressed on the stand to give any reason for it, Cragin was unable to do so. He said that the next day after the stormy interview he procured from Mr. Crawford the memorandum of instructions, and showed it to Coulston, who compared it with the agreement, and observed the change in the word "not" to "never," and commented on it in an offensive manner; and again, a day or two later, he found Crawford's draft of the October agreement, and took this to Mr. Coulston, though why he should do that I do not understand. I do not see why there was any occasion for him to hunt up the draft of the October agreement, about the drawing and force of which no question had arisen. All this, according to Cragin, occurred before any claim had been made by Dobbins. After Dobbins' claim was made, Cragin called on Coulston, according to Cragin's account, and informed him of it, and asked his professional assistance, and was asked by Coulston to go elsewhere and get a cheaper lawyer, and finally, and with great difficulty, induced him to accept the retainer; he, however, all the time advising him that his right had expired, and that he had no case which would stand for a moment in court. Another difficulty is in believing that the agreement of January, 1870, was not found and shown to Mr. Coulston by Cragin until April or May, 1890. Cragin swears that all the contracts, except that one, were submitted to Coulston in October, 1889, on the occasion of the proposed formation of the corporation; but those contracts showed only that he had no title whatever, and Mr. Coulston so told him, and he swears that lie then told Coulston that there must be another paper somewhere, and that he let the matter rest until the next spring. Now, I find it difficult to believe that he did rest for six or seven months without searching for, finding, and submitting to his counsel the one important paper upon which so much depended. I think that he is mistaken in his evidence in this matter. This aspect of the transaction was not disclosed to Mr. Coulston on his cross-examination, and we have not the benefit of his memory about it. The effect of his evidence is that all the agreements were submitted to him together, in October, 1889, and, if this circumstance of the alleged absence at that time of the last one in date was known to the defendant's counsel at the time he was on the stand, they refrained from any cross-examination based upon it. I think his recollection on that point would have been valuable.

Now, these occurrences in 1889 and 1890 have a twofold bearing: First, upon the question whether or not defendant has in his possession and refuses to produce Mr. Crawford's draft of the agreement of January 21, 1870; and, second, the accuracy and reliability of Mr. Coulston's memory of the transactions of 1869 and 1870. With regard to the latter, is seems to me that the several discussions between himself and Mr. Cragin. with the papers before him must have had the effect of refreshing his memory and recollection to the fullest extent of which, after such a lapse of time, it was capable. And an important element in it is that this refreshment was made during conversations with the defendant Cragin, when Coulston was his retained counsel, and when all his interests and sympathies were naturally in Cragin's favor. It is true that he became offended at Cragin, but it is also true, notwithstanding such offense, that Cragin insisted upon his continuing in his employ, and he appears to have been faithful to his retainer until he returned it. There is not the least evidence, or reason to believe, that up to the return of the retainer, and I think, for reasons to be presently stated, up to the time of the filing of the original bill in this cause in this state, he had more than one interview with the complainant. He heard all the defendant's repeated assertions that the contract between him and Dobbins was that Dobbins should sell to him all his right, including his reversion, and yet, in the face of those assertions, he conies on the stand and swears in the most positive manner that he did not so understand, but recollects the contrary, and that the negotiations and sale, so far as he participated in them, was only of the royalties during the term of 20 years.

With regard to the existence or non-existence of the draft of the January agreement, the strong inclination of my mind is to believe that Mr. Coulston is not mistaken, and that such a draft does exist. Supposing that the draft of October 1st was brought to him by Mr. Cragin, I do not see how he could have mistaken that for a draft of the agreement of January 21, 1870. Its mere bulk would have prevented his being misled in that respect. I feel constrained to believe that his account of the occurrences of May and June, 1890, is substantially correct.

One other matter in that connection perhaps deserves to be noticed, which apparently makes against the accuracy of Mr.

Coulston's memory. Mr. Coulston swears that Cragin brought him in June, 1890, a note which he had written to Mr. Crawlord in January, 1870, asking for the draft of the contract; and, when upon the witness stand, he, of his own motion, called upon Mr. Cragin's counsel to produce that note and the draft of the contract itself, so that he might have them before him. They produced neither, declaring that there was no such draft or note in existence, but did produce a note from him dated October 2, 1809, to Mr. Crawford, calling for the contract (not the draft) of that date. As soon as that wan shown to Mr. Coulston, he declared that it was not the note which Mr. Cragin had brought to him in June, 1890. which was, according to his recollection, written on a different kind of paper, which he described. Mr. Coulston denies that the draft of the October agreement was shown to him in June, 1890, or that he had seen it from the date of the original transaction until it was shown him when on the witness stand. Mr. Crawford swears that this note of October 2d was the only one of the kind that he had preserved. And his evidence on this point, so far as it goes, does tend, with more or less strength, to show Mr. Coulston to be mistaken. Still, I do not think it of sufficient strength to overcome the general considerations before alluded to.

In one other matter it is charged that Mr. Coulston contradicts himself. Cragin and Coulston both swear that he (Coulston) advised Cragin in June, 1890, that if the contract of January, 1870, was capable of being construed as forever restraining Dobbins from selling soap, it would be adjudged void as in restraint of trade. Cragin swears that that was the sole ground on which he advised against his right. Coulston swears that the assignment of March 17, 1869, was framed on that basis, which is, in effect, swearing that it was limited to a term of years to avoid being in restraint of trade; and he further swears, when examined with regard to the agreement of January, 1870, that Mr. Cragin's whole idea was that before the 20 years should expire "he would have made all the money out of it that he wanted." But it is evident that he did not intend to convey the idea that that remark of Cragin was made in connection with the agreement of January, 1870, but in connection with that of March, 1869. I conclude that the evidence of Mr. Coulston is in the main, and as to all essential matters, reliable, and that the interpretation I have put on the contract is that which he at the time understood that it bore, and understood was in accordance with the understanding of the parties.

The defendant swears most positively that the bargain included the right to use the complainant's name and trade-secret and trade-marks forever, and that he prepared the memorandum of instructions with that understanding, and read it to the complainant, who assented to it, before it was sent to Mr. Crawford. Complainant denies that any such paper was read to him by Cragin, and says that if it had been he should have paid little attention to it, as he had stated the terms of the contract to Mr. Coulston, and relied upon him entirely to see that they were properly embraced in the writing; and he swears positively that the bargain in question was confined entirely to the royalties reserved by the October contract, and that he was not asked to deal with the reversion or to bind himself beyond 20 years, and he gives the same account of the manner in which, and the purpose for which, the contractual part of the receipt was introduced that Mr. Coulston gave. Mr. Garwood, the defendant's clerk, swears that he heard some paper read by Mr. Cragin to Mr. Dobbins, but entirely fails to identify it as the memorandum of instructions; and his evidence may well apply to Mr. Crawford's draft of the contract, which was certainly brought to Mr. Cragin's office to be engrossed by this witness, and may well have been read there by Cragin to Dobbins. This witness (Garwood) also swears that he understood that Dobbins sold out the whole business forever, and he testifies about certain conversations he had with Dobbins a year or two before the expiration of the 20 years which he interpreted as admissions on his part that his rights in the name and trade-marks were entirely gone. But in all this he swears to conclusions only, which circumstance, together with his manner on the stand, compel me to place little or no reliance on his evidence. The defendant also produced several witnesses from Ohio, who swore to conversations had with complainant on the occasion of his selling, or attempting to sell, another brand of soap to them, in which he made remarks which they say were admissions that he had understood he had solo his right in the Dobbins' soap forever. The substance of these statements was that he was the original inventor and proprietor of Dobbins' soap, and had been "beaten out of it" in someway. I think that, under the circumstances, they do not necessarily amount to such admissions.

A more serious fact relied upon by the defendant is the failure of the complainant for 15 months to make any demand upon the defendant, or to give him any notice of his claim. The only reply made by the complainant to this point, when pressed about it on the witness stand, was that he was very poor, and for a considerable part of the time about and after the expiration of the 20 years was in poor health, confined to his room at times, and unable to attend to business, and that he was aware that defendant was rich, and knew his character well enough to feel that it would be useless to give him any notice or make any application to him except through a lawyer, which he did as soon as he was able to make arrangements to that effect. Poverty did not prevent him from giving notice of his claim, though it is a well-recognized excuse for not bringing suit. But I think that the result shows that his judgment was right as to the futility of merely giving a notice to Mr. Cragin not followed up by suit. There is, however, one circumstance in the case, not alluded to by counsel, which has struck me with some force, and which Iwill mention. The bill filed by Dobbins in Philadelphia has a copy of the contract of October, 1869, as well as that of January, 1870, annexed to it; but at the hearing the complainant called upon the defendant to produce that October contract, as well as the three which preceded it, and it seemed to be admitted that he had no executed copies of any of the contracts, except that of January 21, 1870. And that this was so appears conclusively from the circumstance that the defendant handed up, as exhibits, both of the executed copies of the contract of October 1, 1869. How the complainant became possessed of the copy of that contract which he annexed to his bill in Philadelphia, and also to his bill filed in this state, does not appear; and I can only infer that it was furnished to him upon request by defendant during the three or four weeks in the month of June, 1890, that the parties were in amicable communication with the view of settlement of the controversy. Now, if it be true, as it seems to be, that the complainant had no copy of the contract of October 1, 1869, to which that of January 12, 1870, is a supplement, it is plain at once that any lawyer, looking at the latter contract alone, would hesitate to advise him that he had any claim to recover the right to use his name. As I have already shown, it is only when that contract is read in connection with that of October 1st that such right appears clear. Complainant may well, then, have been in doubt, and been so advised by counsel as to his rights under the agreement of January 21, 1870, standing alone, and a little light is thrown upon the situation by a letter written by Mr. Cragin to Mr. Coulston, June 11, 1890, in which he used this language: "Dobbins told some men some time ago that he had consulted two lawyers regarding bringing suit against me for the business after 20 years. One told him he had no case; the other told him he thought he had. This comes to me direct." Under all the circumstances, I do not think that it is safe to treat the delay of the complainant as an admission on his part that he had originally understood that he had sold out to Cragin for all time.

An attack is made on Mr. Dobbins, based on an allegation in the bill and a statement in an affidavit made by him for use at the hearing for a preliminary injunction in October, 1890. The allegation of the bill is as follows: "And your orator charges that immediately previous to the execution of the agreement of January 21, 1870, said Cragin & Co. had caused to be prepared a paper having the legal effect of assigning your orator's reversionary interest in said business and trade-marks, which paper was rejected by your orator, and thereupon said Cragin & Co. had prepared another paper, to-wit, the agreement of January twenty-first, eighteen hundred and seventy, to which he assented, which was executed by the parties." The affidavit states this: "That after the execution of the contract dated January 21, 1870, deponent was informed by Mr. J. Warren Coulston, Esq., who was at that time counsel for deponent, and who represented leponent in said matters, that said Cragin had brought to him a paper purporting to be or having the legal effect, in said Coulston's judgment, of assigning the deponent's reversionary interest in said trademark and business; that said Coulston told said Cragin at that time such was not the agreement or the arrangement; and that said Coulston returned said paper to Cragin, and thereupon the supplemental contract of January 21, 1870, was executed under the advice of deponent's counsel." Mr. Coulston, on the stand, positively denied having ever made any such statement to Mr. Dobbins, and thus it is said that party and witness are in direct contradiction of each other. But Mr. Coulston does swear, as already remarked, that Mr. Cragin did, previous to the execution of the October agreement, ask him to aid him in procuring from Dobbins a contract of that kind: that he declined; and that he reported the fact to Mr. Dobbins. Now, it may well be that Mr. Dobbins, in looking back over a period of 20 years, has confused the two occasions in his mind, and that the sworn allegation, so denied by Mr. Coulston, was a mere mistake. This little circumstance, while it does not detract materially, in my judgment, from the reliability of Mr. Dobbins' evidence, does show one thing very clearly; and that is that, although the fact that the relation of solicitor and client between Cragin and Coulston had ceased was probably soon known by complainant and his counsel, yet up to the time of preparing the original bill in this case, and the preparation of the affidavit in question, in October, 1890, no extended communication had taken place between Mr. Coulston and those counsel, and that he had not rendered them aid in the preparation of the bill and affidavit, else such a contradiction and mistake as that just referred to would never have occurred.

This review of the evidence leads my mind to this conclusion that the defendant Cragin intended to acquire, and supposed he was acquiring, the complainant's reversionary rights, but that the complainant, Dobbins, did not so understand, but did understand that the negotiations and sale were confined to the royalties reserved by the previous contract, and that in arriving at that understanding be was not guilty of any negligence; that the defendant intended to instruct his counsel to provide for the transfer of complainant's whole interest, but failed to make himself understood by his counsel, so that the latter framed and prepared the contract proper in such shape that it did not effect the reversion, and that in that shape it was submitted to complainant's counsel, who found it to agree with what he understood from both parties to be the actual contract; that the contractual part of the receipt was an after-thought by the defendant, framed by him and inserted at his request, for the purpose only of enabling him to use the complainant's name on other soaps during the time he already had the right to use it on complainant's own invention, and was not intended or understood by either party to enlarge or extend the defendant's right in point of time beyond what the body of the agreementhad already done. It may be that the defendant supposed that the body of the agreement had the effect of transferring to him the complainant's right for all time, but the complainant and his counsel did not so understand it, and the complainant never so consciously agreed. The parties' minds had never met on that subject. And I do not find it difficult, on a review of the evidence, especially of the memorandum of instructions, to understand how the parties failed to understand each other. There were four objects, or classes of objects, which might be the subject of negotiation: First, the special payments undertaken by Cragin & Co. in the first, second, and third clauses of the agreement of October 1st; secondly, the royalties reserved in the fifth clause thereof; thirdly, the rent of the factory dealt with in the fourth clause; and, fourthly, the use of the secret and trade-marks and name after the expiration of the term of 20 years. Now, it seems to me that it was not difficult for the complainant and his counsel to understand any terms of universality which the defendant may have used during the negotiations to be intended to apply to and include only the money payments and royalties, and thus their minds did not meet on the point now in controversy. It seems to follow from this view that, if the contractual clause of the agreement be capable of the more extended construction which the defendant claims that it bears, it would be inequitable for him, having himself framed it avowedly for a different purpose, to set it up and insist upon its enforcement as against the complainant in this enlarged sense. The answer is not framed for cross-relief by way of reformation to accord with defendant's understanding. His counsel expressed themselves as content with the writings as they now read; and, of course, as I view the evidence, the case does not warrant such relief, even if prayed for. This result renders it unnecessary to consider the point discussed at the argument as to whether the license to use complainant's name, if perpetual, warrants its insertion in the name of a corporation. I will advise a decree for the complainant. Its scope and terms will be settled upon motion.