Blackburn v. Allen

FOURT, J.

This is an appeal from a judgment in favor of plaintiff with reference to a claim for money under a written contract.

The cause went to trial upon the claim of Blackburn that he, as the owner of a patent for a long stroke oil pumping unit, had entered into a written license agreement with Allen wherein, among other things, Blackburn had granted to Allen the exclusive right to make and sell all devices embodying the invention set forth and claimed in the letters patent. Paragraph 16 of the contract provides as follows:

“Licensee agrees to advance $85.00 per week from the signing of this agreement to Licensor or to supplement wages earned elsewhere by Licensor to an $85.00 per week minimum income to Licensor. Said advances to be charged against royalty payments as provided for herein above. ’ ’

Paragraph 11 of the agreement provides:

“The Licensor may terminate this agreement upon ninety (90) days notice in writing to the Licensee, if the Licensee fails within the ninety (90) days to correct the conditions of said notice and neglects or refuses to pay all and singular royalties when and as the same may become due and payable and/or the failure of the Licensee to keep and perform all and singular covenants named herein; but in such event, the Licensee shall not thereby be discharged from any liability to the Licensor for any royalties due at the time of the service of such notice. The Licensee may terminate this agreement only at the end of any calendar year during the life of this agreement by serving written notice upon the Licensor of intention so to do, not less than ninety (90) days prior to the expiration of any year, and the payment of all royalties and moneys due the Licensor at the time of such termination.”

It was alleged and the court found upon substantial evidence that Allen paid to Blackburn $85 each week from the date of the contract until November 1, 1957, that from the latter date Allen refused to pay Blackburn the sum due and owing, i.e. $85 per week; The license agreement was dated February 16, 1950, and was prepared by Allen. There were some few changes made in the agreement at the time it was submitted to Blackburn for his signature (around midnight of February 16, 1950), among such being a specification that the unit which was the subject of the agreement was numbered S-125769.

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