Benjamin

This is an appeal by the defendant from a judgment entered in favor of the plaintiff for the payment of certain sums of money, with interest, which sums represent the full amount of certain minimum royalties provided to he paid to plaintiff by defendant pursuant to the terms of a written contract entered into between them whereby plaintiff granted to defendant the sole right to manufacture a certain centrifugal impact ore pulverizer upon which letters patent had been issued to plaintiff by the United States patent office. Said contract provided, among other things, that plaintiff should protect the defendant against any infringement of the patent by others during the term of the agreement. Defendant in his answer admitted the nonpayment of the royalties, but set up as a defense and a ground of counterclaim an alleged infringement of the patent by one Marks, against which defendant claims plaintiff failed to protect him. The sole question presented for determination is whether or not there has been any infringement of said patent by the said Marks. The trial court found adversely upon the defendant’s contention as to that issue and it will therefore be necessary to ascertain only…