Page:Federal Reporter, 1st Series, Volume 3.djvu/157

ISÔ nSDeSAIi SEPOBTSa. �It was urged by the leamed counsel of the defendant, on the argument, that if the surrender and release took place, as alleged, such act rendered the whole contract void, and the plaintiffs were out of court; and in support of this view the well-recognized principle of law was quoted, that where there are mutual covenants and joint covenantees a release of one is a release of ail. It is true that if several covenantees enter into joint covenants, and the covenantor afterwards release one or more, he will not be permitted to maintain a suit on the covenants against the remaining covenantees, because such a release destroyed his right of action against the survivors ; but that is not this case and the principle does not apply. Here, five men acquire certain rights and privileges in a patented article; they pay $1,000 in cash for the license, and agree to pay a stipulated royalty, besides, for ail that they ean use in a deaignated business. The patentee subsequently agrees with three of the licensees that they sha.ll be released from the contract, and this ia done without any consultation with the remaining two. These two, faithfuUy performing ail their covenants and agreements, insist that the licensor shall continue to perfonn his, as to thetn, and, upon failure, institute their suit for its breaoh of covenants. Why should the defendant be allowed to claim that those -whom it bas released, and who bave no interest, should be parties, and to defeat the reeovery because they are not joined? Nothing but the most absolute necessity would justify the court in perniitting the defendant corporation thus to plead and take advantage of its own act to escape responsibility. I do not perceive such necessity, and am constrained to overrule the demurrer, with costs. ����