The opinion of the court was delivered by: BARD
This action arises upon petition for declaratory judgment and incidental relief in accordance with the Federal Declaratory Judgment Act.
The prayer of the petition is that the court declare terminated a contract entered into between the parties on December 1, 1925, and grant incidental relief in the form of damages. From the evidence I make the following special.
1. Plaintiff is a New Jersey corporation with its principal place of business in Elizabeth, New Jersey, and it is engaged in the business of designing and manufacturing type.
2. Respondent is a Virginia corporation with its principal place of business in Philadelphia, Pennsylvania, and it is engaged in the business of manufacturing and selling monotype machines and matrices for use with such machines.
3. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.
4. An actual controversy exists between the plaintiff and defendant involving their respective rights and liabilities under a type reproduction agreement entered into between them on December 1, 1925.
5. By the agreement entered into by plaintiff under its former name of American Type Founders Company defendant agreed to pay to plaintiff seven cents for each matrix it sold which was designed to reproduce type faces manufactured by the plaintiff, with the exception of those type faces which defendant had been reproducing prior to the execution of the said agreement and as to which no charge for reproduction was to be made.
6. No provision was made in the agreement concerning the duration or termination thereof.
7. From December 1, 1925 until December 29, 1938, defendant paid to plaintiff in excess of $100,000 in royalties for its sale of matrices of plaintiff's type.
8. Defendant maintains a normal inventory of matrices of plaintiff's type of approximate value of $800,000.
9. Defendant as of October 10, 1941, had invested the sum of $139,806.65 in tools, dies and equipment designed specifically for the manufacture of matrices of plaintiff's type reproduced by defendant subsequent to December 1, 1925.
10. On and after January, 1935, none of the type faces manufactured by plaintiff was covered by outstanding design patents.
11. On December 28, 1938, plaintiff notified defendant that the agreement of December 1, 1925, had been ...