Page:Federal Reporter, 1st Series, Volume 8.djvu/469

OOOE I7. BIOWELIi, '■ ���ees ���(lefendant's liceiise -cfould nece&earily affect Balli'e boiiiniissiotis,' and, mdeed, 'tierk a rescisHion of the entire agreeiiient fcetween bim and the defendant. ;: ? ^ ;■ i > ■ -v .i �It only remains to be considered whether' the' cbmplainants are entitled to relief under their prayer for an account, and, if so, upoti wliat principles such account is to be taken. Albert Bail testifiee that he visited the defendant's office on the seventeenth of January, 1877. Heeays: ■ ' ' �"I hahded him a notice, from John Bail & Co., of the'transfer of my rightk and royalties that had become due under my contract with Mr. Bidwell, aild, I think,in connection with that, a letter statiiig they had withdrawn a certain drcular they had issued." �On January 27, 1877, John Bail & Co. addresBed the defendant a letter, in which they say; , . h, �"You are herebynotified that Albert Bail has assigned tous all royalty or patent fees which are due, or to become due, under provisions of contract between you and him dated July 19, 1876, and that w^ shall look to you for payment of same to us." �To this notification the defendant replied, by letter dated January 30, 1877, in -which he says : �"I take note of your notice that Albert Bail has assigned to you the royalty which maybecome due to him linder my contract with him dated July 19^1876, and in reply thereto ha,ve to state that the amount, jn round figures. equal to about $1,500, has already been advanc'ed to Mr. Albert Bail, upon' the royalty and commissions for selling. As I cannot know at this date how much of the amount will be applicable to commissions, I eould not determine how muBh of it would go ofE the royalty.. Any balanpe, however, whicl); may^be due upon the same, it will be equally agreeable to me^to pay you at the proper time." ' ■ . , �Under date of February 6, 1877, John Ba-ll & Co. wrote to the defendait; , , ; �"We cannot consent that anyamounts- advanced tp.Mir. Bail af ter the seventeenth instant should be included in the ai'uoynt held subject to royalty, as you had notice through him of the transfer to us; and amounts advanced after such notice were so done at your own risk of being taken up by com- missions or otherwise by Mr. Bail." ' �It appe(ars, as I understand the evidence, that oh January 18, 1877, the defendant made an advance to Albert Bail of $546.40,' ■which afterwards was reduced to $464.20. This advance the evi- dence shows was in aocordance with previoiia' dealings between Bail and the defendant under their agreement, and nothing in the evidence relating to the transaction indieatea any intentional bad faith to John Bail & Co. Is, then, the position taken by them and by the ��� �