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1856: 14th July.

Agreement.
Demurrer.

OSBORNE v. JULLION.

4. entered into IN this case (which is reported ante, p. 552, on ques

an agreement
with B. that B.
should work
his patent at
A.'s expense,

first, by way of
experiment;
and if A. was
satisfied and
expressed his
satisfaction in
writing, then
the patent was

certain terms of

tions of pleading and practice) the demurrer put in to the bill now came on to be argued. It turned principally on the effect of an agreement between the Plaintiff and Defendant, and the allegations of the bill as to the acts done in reference to that agreement. The agreement, dated March, 1853, recited two patents for inventions in the manufacture of acids; which patents had become vested in Jullion, and it then proceeded thus:-“ And whereas the said James Thomas Jullion and John Pos

to be worked on ford Osborne have mutually agreed with each other for payment to B., the transfer to the said John Posford Osborne of the B. undertaking said several inventions and letters-patent and all future to devote his benefit thereof, and of any other letters-patent which may time, &c.; and there were pro- be obtained for the said inventions and for the working visions for ter- and management thereof by the said James Thomas minating the agreement in Jullion, upon the terms hereinafter mentioned: Now it case the profit is hereby agreed by and between the said James Thomas of the manufacJullion and John Posford Osborne, each for himself and his executors, administrators and assigns, that the said James Thomas Jullion shall within a reasonable time

ture fell below

a certain sum. The bill made

a case that ex

periments had

been made;

from the date of this agreement, by way of experiment

that the Defendant represented the invention would answer, and led the Plaintiff into expense; but it did not allege that the Plaintiff was satisfied or had expressed his satisfaction in writing, nor did it distinctly allege any fraudulent misrepresentation by Defendant-it prayed a dissolution of the joint concern, and a lien on the patents for the money expended by A. Held, on demurrer, that there was no partnership; that the agreement was merely for an experiment until 4. should have expressed his satisfaction in writing; and a demurrer to the bill was allowed.

and trial, work the said invention and process, and thereby manufacture, at the cost of the said John Posford Osborne, not less than two tons of the said article called oxalic acid, in order that the exact cost of the manufacture by the said invention and process may be correctly ascertained to the satisfaction in all particulars of the said John Posford Osborne, and that such quantity of the said article to be so manufactured under this provision shall be equal in point of quality to any other of the said article that has been, is or can be manufactured in the United Kingdom, and that if upon the result of such experimental trial of the said working of the said invention and process it shall appear to the satisfaction of the said John Posford Osborne (such satisfaction being testified by writing under his hand) that the said article can by the use and working of the said invention and process be manufactured so as to yield a net profit of not less than three halfpence per pound avoirdupois, then all the following provisions, clauses and stipulations shall come into operation, otherwise they shall not, nor shall any or either of them, take effect; that the said John Posford Osborne shall pay to the said James Thomas Jullion the sum of 21. weekly and every week from the date of this agreement as and for compensation for the loss which the said James Thomas Jullion has sustained in time and money in negociating this agreement and incident thereto to the day when the said James Thomas Jullion shall be employed by the said John Posford Osborne, and from such last-mentioned period and during the continuance of this agreement the said James Thomas Jullion shall be paid weekly and every week by the said John Posford Osborne the sum of 57. in addition to the premiums on sales hereinafter mentioned; that he the said James Thomas Jullion shall and will, within fourteen days from the date of such written satisfaction of the said

1856.

OSBORNE

v.

JULLION.

1856.

OSBORNE

v.

JULLION.

John Posford Osborne with such experimental trial as aforesaid, by good and sufficient assignment or assignments for that purpose to be prepared by and at the expense of the said John Posford Osborne, grant and assign and transfer unto the said John Posford Osborne, his executors, administrators and assigns, all those the inventions and letters-patent hereinbefore referred to and the privilege by such letters-patent granted, and also all future and other letters-patent or privileges either at home or abroad, or extension of the said letters-patent or of the privileges thereby granted for and in respect of the said inventions and privileges by the said several letterspatent granted and assured, and all rights, powers, authorities, &c., and all the right, title, &c., unto the said John Posford Osborne, his executors, &c., thenceforth for all the residue of the said term of fourteen years and for all other the term or terms of years, &c., as fully and beneficially, &c., but subject nevertheless to the proviso for re-assignment thereof, and also subject to the several stipulations hereinafter mentioned (that is to say), that he the said John Posford Osborne shall work the said invention and manufacture the article called oxalic acid on the terms and conditions and subject to the provisions and conditions also hereinafter mentioned, which are: that the said James Thomas Jullion shall be retained by the said John Posford Osborne in and for the purpose of working the said patents and inventions, and of superintending and managing the manufacture of the said article called oxalic acid, at a salary of 250l. a year, to be paid by the said John Posford Osborne, his executors, administrators or assigns, and that in addition to the said annual salary of 250l. the said James Thomas Jullion shall also be paid a per centage of 101 per centum upon the net amount of the sales of the article to be manufactured by the said John Posford Osborne according to .

the said inventions and processes under, such superintendence and management of the said James Thomas Jullion, and so long as the said John Posford Osborne shall continue the manufacture thereof; that the said John Posford Osborne shall be bound to manufacture weekly and every week a quantity of the said article called oxalic acid not less than two tons, provided always, that such said article can be manufactured so as to yield (after payment of all expenses of working the process, salaries and all necessary clerks, &c., and all expenses of fuel, labour, &c., rent, &c., and all other expenses of every kind incident to the manufacture and production of the said article), a net profit of not less than three halfpence per pound, the sum of four pence halfpenny having been fixed between the parties as the maximum cost of the manufacture of a pound avoirdupois of the said article upon the estimate of the prices of the following articles used in such manufacture hereinafter named, namely, rice 97. per ton and nitrate of soda 147. per ton in the London market. It is, therefore, further agreed between the parties that if either of the said two last-mentioned articles shall at any time so rise in value in London as to raise the cost of the manufacture of the said article the smallest fraction beyond 6d. per pound avoirdupois, the said John Posford Osborne shall be at full liberty immediately to discontinue such manufacture, unless the price to be realized by the sale thereof shall rise in proportion, so as to yield a profit of not less than three halfpence per pound, and therefrom all the provisions of this agreement then capable of being carried into effect shall be at an end, the stipulations hereinbefore contained binding the said John Posford Osborne to work the said invention and process upon the terms hereinbefore mentioned, and to engage the said James Thomas Jullion in the superintendence and manufacture

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1856.

OSBORNE

v.

JULLION.

thereof having been made and entered into upon the representation by the said James Thomas Jullion that the said article called oxalic acid, when so manufactured as aforesaid, can be sold in the quantity of not less than two tons weekly, and at a price of seven pence per pound avoirdupois. It is, therefore, further agreed between the parties hereto, that if at any time after such manufacture of the article, under the said invention and process, may have been commenced by the said John Posford Osborne under the provisions of this agreement it shall happen that the said article called oxalic acid will not fetch the before-mentioned price of seven pence per pound avoirdupois, or such less sum as will yield a profit of not less than three halfpence per pound avoirdupois, or if the said John Posford Osborne cannot procure a sale averaging (for the period of six months next preceding) at least two tons of the said article weekly, and every week during such said period of six months, that then and in either of such cases the said John Posford Osborne shall be at full liberty immediately thereupon to discontinue such manufacture, and thereupon this agreement shall be at an end. The said John Posford Osborne shall not grant any licence or licences for working the said patents or either of them, or any part or parts thereof, or any extension of or improvement to the same or either of them, without the consent in writing of the said James Thomas Jullion first had and obtained. [Then followed a stipulation immaterial.] The said James Thomas Jullion shall at all times during the continuance of the arrangement between him and the said John Posford Osborne, under this agreement, or the deed or deeds to be executed in pursuance thereof, devote so much of his time and attention to the said inventions and processes, and the manufacture of the said article under the terms of this agreement, and also to the improvement of the manufacture thereof, as

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