wood Company mined from the upper vein, and reported the mining to Lacoe and Shiffer, and Lacoe and Shiffer sent a statement of the number of tons prepared coal to Charles Drake, or his devisees. Charles Drake died in 1873. His devisees, who are the plaintiff's in this suit, Thomas Drake, Ebenezer Drake, and George K. Drake, have owned since his death, and still own, their interests in the land. Lyman K. Drake's interest was conveyed, and his interest in the accrued royalty assigned, to M. W. Morris and Isaac Everett. 27,808 tons 12 hundredweight of prepared coal were mined from 1872 to 1876, as reported in the statements. The Glenwood Company became insolvent, and Messrs. Lacoe and Shiffer repossessed themselves of the land and coal, and again leased to John Jermyn and others. The defendants paid the $500 minimum royalty semiannually, as required by the first lease. The plaintiffs, a short time before this suit, complained the returns were not by "miners' weight," but in tons of 2,240 pounds of prepared coal only, and so made a demand for payment, with interest for the coal mined, and demanded that it be mined and returned in "miners' weight," in accordance with the lease. The defendants refused, and the plaintiffs immediately afterwards filed the bill in this case, asking for an account, that the lease for the upper vein be declared forfeited for nonpayment of royalty, and that they have such other relief as to the court should seem meet. The defendants, in their answer, do not deny the averments of plaintiffs' bill as to the execution of the leases to Lacoe and Shiffer and the Massachusetts Coal Company, nor any of the material facts set out, except that averring default in payment. They aver, however, that the leases had subsequently, by the construction put upon them by both parties, become merged; that they were treated as one instrument, and the minimum royalty of $500 stipulated for in the first lease constituted their maximum liability as to annual payments under both leases; that this sum had been paid by them, and accepted by plaintiffs as in full of all demands. They further averred that they had accounted in tons, "miners' weight," for all coal mined, according to the reasonable interpretation of the lease, and denied plaintiffs' right to assert a forfeiture of the lease for the upper vein, because (1) they had fully accounted; (2) if any such right could be asserted under the words of the grant, plaintiffs, by long delay, had waived their right.

The issue was referred to W. W. Lathrope, Esq., as master, to take testimony, find facts, and suggest decree. He had many hearings, took the testimony of more than 40 witnesses, which, with much documentary evidence, is presented to us in more than 300 pages of the printed paper book. The master finds as a fact, which is not disputed, that no coal was mined under the

first lease, except about 700 tons. He also finds that the $500 minimum royalty provided for in that lease was annually paid in cash to plaintiffs. And, further, from the year 1871 to 1876, inclusive, while the Glenwood Coal Company was in possession of the property, the 27,868 tons 12 hundredweight of coal were mined from the upper vein, the one granted to the Massachusetts Coal Company by the second lease of 13th of April, 1865. If the number of tons, by a proper interpretation of the term "miners' weight," be correct, and the $500 minimum royalty to be paid annually on the first lease of the lower vein can be transferred and applied in payment of this coal mined under the sec ond agreement from the upper vein, then plaintiffs have substantially been paid in full; there is nothing left of serious contention between the parties. As to the meaning of the term "miners' weight," much of the oral testimony was that of miners and mine operators. They testified as to their experience and observation, and gave in some cases their opinions. Very often they were at variance. Without any testimony on the subject, we would not hesitate to say that the obvious meaning of the term was such quantity of coal as was computed at a ton in paying the miner who mined by the ton. It did not mean a net ton of 2,000 pounds, or a gross ton of 2,240 pounds, or the parties would have so said. The defendants made returns to plaintiffs of the number of tons of prepared merchantable coal, which they allege embraced the number of tons the miners were paid for digging. The miners mined and brought out in weight much more, but, after eliminating from the weight on the mine wagon all bone, slate, dust, and material that was not marketable as coal, there was left the number of tons reported to plaintiffs. This is, in substance, the finding of fact by the master, who says: "(13) Full statements of the coal thus mined were rendered by the defendants Lacoe and Shiffer to Charles Drake in his lifetime, and afterwards to the plaintiffs, or some of them. No objection to their accuracy was made until shortly before the bringing of this suit. The objection then made was, while they showed the number of tons of prepared coal, they did not show the number of tons miners' weight, as called for by the lease. (14) Under all the evidence, the phrase 'miners' weight' in 1863, and during the years when the said coal was mined by the Glenwood Coal Company, meant such quantity of coal, slate, and dirt, as was agreed upon between the operators and the miners to be sufficient to make a ton of prepared coal." We think this finding of the master correct. These returns of prepared coal were regularly made for years, and received by plaintiffs without demand for the weight of material brought out by the miners. There was no fraud nor any concealment. By somewhat rude methods about 20 per cent. of the mine

wagons' contents was deducted as worthless; the remainder, as coal, the miner was paid for. Then the operator returned as representing this the number of tons prepared coal marketed by him. Plaintiffs knew this during all the years the returns were being made, yet received them without objection. The parties themselves having thus interpreted the contract, it is too late now to question its correctness. It is probable that if this accounting had been called for when the accounts were rendered, a detailed statement of the weight of material brought out of the mine, and just what number of pounds of this material was fixed as the miners' ton, would have been required of defendants; not necessarily for the purpose of charging them with something that was not marketable as coal, but at least that the accuracy of the returns of prepared coal might be tested by comparison with the weight of the material in the mine wagon.

As the finding of the master in this particular under the evidence is correct, and has been approved by the court, the quantity of coal mined from the upper vein must be taken as 27,868 tons 12 hundredweight. Why should not defendants pay for it the price agreed upon in the second lease? They answer the two leases-the one for the upper vein, from which the coal was mined, and that for the lower, from which none of it was taken-were by the acts of the parties merged, made one instrument, and the anqual payment of $500, stipulated for in the irst, if appropriated in payment for this coal, leaves nothing due on the second; that defendants, without objection from plaintiffs, did in fact so apply it. The evidence to establish the fact that the first and second agreements were treated as one by the plaintiffs is far from convincing. Some of the receipts for installments of the $500 given after the death of the grantor specify that the money was paid on the first lease. One dated April 9, 1875, mentions that the payment was on lease of November 28, 1863, and "supplement given to Massachusetts Coal Company." But with the exception of this one receipt, all those given before 18th February, 1880, used words which could only have reference to the first lease to Lacoe and Shiffer. On this date, however, a supplementary agreement was made between four of plaintiffs and Lacoe and Shiffer, which gave to them the right to transport other coal through this land, as well as a license to deposit culm upon it. In consideration, they agreed to pay to the Drakes $600 in cash and 50 tons of coal annually, the 50 tons to be in lieu of that agreed to be delivered under the lease to the Massachusetts Coal Company. Then follows this clause: "(5) Except as herein altered, amended, and supplied, the said recited original leases, and all and singular the provisions thereof, shall be and remain in full force and effect." This is a distinct, positive

affirmation of the continued existence of the covenants in each of the first two agreements, except in the immaterial particulars wherein they were altered by the third.

The provision in the first lease for a payment of not less than $500 annually, and that of the second for the payment of 10 cents, "miners' weight," for each and every ton of coal mined, were not mentioned. This last agreement is a supplement to the first two, because it grants or supplies rights and privileges omitted in them. The second lease, while referring to the first for description, is in no sense a supplement, for it supplies nothing to the first, and is between different parties. All the receipts which adopt the words "supplementary thereto," or words of like import, except the one of 9th April, 1875, are dated after this third agreement; and, the fair inference is, refer to it. These facts, on which the master bases his finding, are not "narrow ground," as stated by the learned court. They are established or undisputed facts in the conduct of the parties, irreconcilable with any other conclusion than that plaintiffs treated the first and second agreements as fixing on defendants the separate liability for the minimum $500, and also the royalty for the coal mined; and the master was clearly right when he found as a fact that the evidence failed to show any agreement by plaintiffs, express or implied, that the $500 minimum in the first lease should be applied in payment of coal mined under the second. This finding is also concurred in by the court, although not for the reasons given by the master. We then have the fact established that there is due and owing to plaintiffs from somebody $5,364.75 for coal mined on the land described in the two leases. The master is of opinion that defendants ought to pay this sum, and suggests a decree accordingly. The court is of a different opinion and dismisses the bill, because (1) there was no privity in contract between the parties; (2) there was no privity in estate, consequently defendants were not accountable to these plaintiffs for the coal mined from their land.

It will be noticed that, except a small part, all the coal mined was taken out of the upper vein, and was therefore mined under the second lease,-that to the Massachusetts Coal Company of 13th April, 1865. This company, before taking this lease, had acquired by assignment from Lacoe and Shiffer,-the first one; then, on November 16, 1869, they reassigned both leases to Lacoe, in which reassignment Shiffer and one O. F. Gaines acquired with him an apparent joint interest, for on 25th of May, 1871, they leased the coal at an advanced royalty to the Glenwood Coal Company, which company mined the coal claimed for. In this agreement Lacoe,. Shiffer, and Gaines covenant to perform punctually the stipulations with reference to payment of royalties to the Drakes under the first two leases. They assumed in this con

tract to be the lessees under these first grants, and agreed with the Glenwood Coal Company that they would settle with and pay the Drakes as agreed upon in the first leases for the coal mined. There was no pretense of claim to the coal except under the original leases, and a distinct, positive acknowledgment of their liability to Drakes for all coal mined. The Glenwood Coal Company proceeded to mine the coal in the upper vein, and took out nearly 28,000 tons. They made returns of the coal as it was mined to Lacoe and Shiffer, who made returns to the Drakes. They had acquired the leases after the dissolution of the Massachusetts Coal Company, and thereafter both parties, Drake and Lacoe and Shiffer, by the most significant acts and declarations, kept up through many years, treated each other as if lessors and lessees under the original agreements. However comprehensive may have been the assignment to the Glenwood Coal Company, who mined the coal, the Drakes were no party to it, and Lacoe and Shiffer made careful provision in the assignment they should not be. The written papers, the conduct of the parties, all show beyond controversy an intention to treat the Glenwood Coal Company, who, by the agreement of 25th of May, 1871, acquired the right to mine, as the mere agents or under-lessees of Lacoe and Shiffer, with no interruption to Lacoe's and Shiffer's constructive possession under the assignment to them of the original leases. It is a waste of time to discuss the question whether, technically, the privity of estate between the Drakes and Lacoe and Shiffer was, in law, severed by the contract of 25th May, 1871, with the Glenwood Coal Company. Certainly the relation between the defendants and plaintiffs created by the first two leases and the assignment never, in their understanding of it, ceased to exist. Neither of the parties intended it should be interrupted. If defendants had been answerable, had they themselves mined the coal, their liability, so far as concerns these plaintiffs, under this evidence, was not changed by their assignment to the Glenwood Coal Company. Nor anywhere, in all this prolonged litigation, down to the announcement of such defense in the opinion of the learned court below on exceptions to the master's report, while they allege they paid for it, do they intimate a denial of their accountability under the contract for all the coal mined. On the contrary, they aver and attempt to prove the measure of their accountability arises from a privity of estate constituted by the two instruments treated as one, and not from the separate stipulations of each.

The fifth paragraph of plaintiffs' bill avers that Lacoe and Shiffer, during the years 1872, 1874, 1875, and 1876, mined from the upper vein 27,868 tons 12 hundredweight of coal, which they have not paid for. This averment is thus answered by Lacoe and Shiffer: "(5) They [defendants] admit that during the

years 1872, 1874, 1875, and 1876 there were mined from the upper vein from said property 27,868 tons 12 hundredweight of coal, but they deny they have neglected or refused to pay or cause to be paid the money due and owing therefor." Then they go on to state they paid for it by applying the minimum royalty of $500, under the first lease, in discharge of the covenant to pay 10 cents per ton for coal mined from the upper vein under the second. The whole contention of fact before the master turned on the two questions: (1) Had the defendants made correct returns under the contract? (2) Had the parties united the two leases, and agreed the money paid under the one should discharge the liability for coal mined under the other? Mr. Lacoe, in his testimony, says, in narrating a conversation with Drake concerning the quantity being mined by the Glenwood Coal Company: "It was talked of as a matter of interest to both of us; they as our landlords, and we as the landlords of the parties that were mining." The master makes a most careful and elaborate report on the law and the facts; passes fully on every question raised. The defendants made request specifically for 14 findings of fact and 17 of law. In not one do they ask that plaintiffs shall be turned out of court because the privity of estate between them had ended before the coal was mined. Nor do the exceptions before the court distinctly raise the point on which the bill was dismissed. The twenty-fourth, twenty-sixth, and thirty-first exceptions to the master's report are sustained. They are general exceptions, and manifestly, from their connections, the other findings, and the issues raised, are intended to assert defendants were not bound to account, because they had already accounted; were not bound to pay, for they had already paid. It is not conducive to the ends of justice to use a general exception so as to include a question of blended fact and law, not raised before the master. Both the learned court below and we have a right to the master's finding of fact and conclusions of law after full hearing. The court has found, because defendants had made the contract of 25th May, 1871, and were not parties to the second lease with Charles Drake, plaintiffs' ancestor, therefore there was no privity in estate that would warrant a decree for money which both the master and court have found was owing to plaintiffs. That the absolute assignment of the term, and the acceptance of the assignee as tenant by the lessor, discharges the assignor from all obligations arising from privity of estate, is not questioned; and this is so because such is the intention of the parties, either expressed or implied from written instruments and conduct which reasonably admit of no other interpretation. But an assignment for an increased consideration, with wholly new stipulations, with right of re-entry for conditions broken, with

2. The exclusive licensee to manufacture and sell under certain patent rights is liable to account to the licensor for goods bought by it from infringing manufacturers and resold as for goods made by itself.

3. When a licensor has wrongly assumed to revoke its exclusive license, and has manufactured and sold in opposition to the licensee below the contract price, the licensee should only be charged with the actual price obtained by the licensor during the same periods.

Appeal from court of common pleas, Warren county.

Bill by the Consolidated Oil-Well Packer Company, Limited, and others, partners in said company, against the Jarecki Manufacturing Company, Limited, for an accounting. For former report, see 18 Atl. Rep. 348. Defendant manufactured oil-well packers under license from J. K. Robinson and David A. Strong, owners of patent No. 52,448, paying them a royalty of $3 per packer. In March, 1879, the owners of various patents for packers, including Robinson & Strong, formed the plaintiff company, each putting in their patents as subscriptions to the stock of $50,000. Robinson & Strong received stock to the amount of $13,750, or 271⁄2 per cent. of the whole. April 5, 1879, plaintiff and defendant made a contract that defendant should have the exclusive license to manufacture packers under plaintiff's several patents, plaintiff to protect the monopoly. Defendant was to sell the packers at $40 each, pay itself $9 for cost of manufacture and 10 per cent. for cost of selling, and remit plaintiff the balance, less 271⁄2 per cent. retained for itself, accounts to be rendered monthly. August 18, 1880, plaintiff assumed to revoke the license on account of alleged violations of the contract by defendant, and so notified defendant, which, however, refused to acquiesce, and so notified plaintiff October 19, 1880, and continued to manufacture and sell packers as before, but, after September 1, 1880, rendered no account. Plaintiff thereupon began to manufacture and sell packers for less than $40. The master, James O. Parmlee, found that plaintiff's license to defendant was still in force, except as to the price to be charged for the packers, which condition it had abrogated by its conduct above described; that for the purposes of this suit the parties were partners, defendant having actually taken the places of Robinson & Strong in the plaintiff company by sharing in the profits on the basis of 271⁄2 per cent., whereas Robinson & Strong did not so share, but continued to receive their fixed royalty of $3 per packer from defendant. He therefore recommended an accounting. The court, however, dismissed the suit, and plaintiff appealed. The supreme court reversed the dismisal. 18 Atl. Rep. 348. Defendant thereupon amended its answer by alleging plaintiff's violation of the contract in selling packers at a reduced price, and advertising the cancellation of its license to defendant, and prayed

that, should an accounting be decreed, plaintiff should be required to account to defendant for packers manufactured and sold by it in violation of its contract with defendant. The case was referred back to the master to state the account; defendant to account for all packers made and sold by it from September 1, 1890, to the time of the expiration of the respective patents embrac ed in the contract; plaintiff to account for packers made and sold by it up to the same time. It was held, moreover, that defendant should account for certain packers which It had bought from infringing manufacturers and resold; that the price to be charged against defendant was that charged by plaintiff at the same time; and that interest should be computed on each month's accounts from the time they should have been rendered. The master, therefore, in his final report, filed December 23, 1892, debited defendant with the net price, less the cost of manufacture, 10 per cent. commission, and 271⁄2 per cent. share in the profits, and credited it with 271⁄2 per cent. of the net price of packers sold by plaintiff, interest calculated on both sides to date of the final report. The contract cost of manufacture was held inapplicable, and the actual cost was determined as near as possible. The costs were divided, except those in the supreme court on the first appeal, which had been given against defendant. From the decree confirming this report, defendant appeals.

S. A. Davenport and J. C. Sturgeon, for appellant. Samuel T. Neill, for appellees.

PER CURIAM. Upon a very patient and careful examination of the record in this case we are satisfied that justice has been done between the parties by the final decree rendered by the learned court below. We de cided the question of jurisdiction when the case was here before, and see no reason to change our opinion. The amendment to the defendant's answer was properly allowed, and the determination of all matters involved in the contention on their merits of law and fact was what we intended by our former decision, and it has now been accomplished. We are entirely satisfied with the reasons given by the learned court below for holding that the defendant should only be charged with a price or royalty of $25, instead of $40, per packer, after the plaintiff commenced selling at that price. It would be productive of gross injustice to hold otherwise. We are also of opinion that the court did perfectly right in holding that the plaintiff should account for all the packers sold by them after they commenced such sales. The minor questions have been correctly and justly decided, and the question of costs has been disposed of with eminent propriety. The decree of the court below is affirmed.