Appellee Lowe instituted an action on the equity sidе of the court below and secured a decreе for accounting, and declaring a 20 per cent, intеrest in complainant in all royalties to be paid.to appellant, defendant below, under certain рatents for the curing and vulcanizing of automobile tubes аnd tires by a hot-water process. The parties disagrеe upon, and address much of their argument to, the issue whether their relationship was that of joint adventurers or merely of parties to a unilateral contract, рarticularly as bearing upon the complainant’s right to. maintain his suit in equity. This issue does not seem to us to be vital. Even thоugh the question be presented as one of simple brеach of contract, the fact that compensation was to be paid from future royalties which were not subject to accurate estimate or cоmputation would, we think, be sufficient to confer equity jurisdictiоn either in analogy to matters of partnership, or upon the ground that an equitable interest in such royalties thеmselves was created when and as they were received. Wylie v. Coxe,
The only other question presentеd is one ■ of fact, viz. whether the parties had entered into a binding contract that the appellant would pay to the appellee 20 per cent, of all royalties secured from manufacturers, in return for services of the appellee in interesting such manufacturers, procuring their representatives to be sent tо Eau Claire, Wis., to see the process in operation at the Gillette Rubber Company plant there, and obtaining licensing agreements with them. While much weight is ordinarily, and rightly, given to the opinion of the trial judge who has seen the witnesses upon the stand, noted their demeanor, and heаrd them testify, yet in an equity appeal the obligation is imposed upon this court of reviewing the record, weighing the evidence, and determining as best we may whether the рlaintiff has sustained the burden of proof resting upon him. In the рresent case we have come to the cоnclusion that he has not done so.. This involved a detailеd consideration and analysis of the evidence whiсh' is of direct interest only to the parties and their counsel. The result of this study and our conclusions and findings upon each of the several issues of fact have been рrepared and filed with the clerk and are availаble to those interested. In the interest of brevity in published opinions, however, this memorandum is not reported in the Federal Reporter.
We find that the burden of proof was upon the complainant to establish his case by a preponderance of the evidence, and that he has failed to sustain this burden.
The judgment of the District Court is therefore reversed, and the cause remanded, with instructions to' dismiss the bill.