c30:No. 44

ACHESON, Circuit Judge (dissenting).
I dissent from this decree. The paper signed at the meeting of October 26, 1901, by the three directors of the company then present, namely, Houston, Ward;' and Bonnell, was an ex parte memorandum. Manifestly it is incomplete. It recites no consideration. It does not show any contract. Indeed, unless supplemented by oral testimony, the paper would not be evidence at all against the corporation. Mr. Bonnell was a witness for the company, and speaking of what occurred at the meeting of October 26th, and referring to the paper signed by himself and the two other directors, he testified thus: “Q. 6. I understand from you that the whole contract was not put down in writing? A. No; it was not.” It is plain to me from all the evidence that a further writing was contemplated. The plaintiff was rightly advised by counsel that he could not safely rely upon the paper which the three directors signed. No doubt the writing which the plaintiff submitted to the company was open to criticism, but no specific objection- was made to it. Good faith required the company to specify wherein it was objectionable. The company, however, took the arbitrary position that the. plaintiff must be content with the incomplete ex parte memorandum of October 26th, and should execute to the company an absolute assignment of his letters patent. Had the plaintiff complied with this unfair demand, he would have been left without any adequate protection. The plaintiff, in my judgment, was entitled to some writing embodying the whole contract. The conduct of the company was so unreasonable that a court of equity, it seems to me, would not decree in its favor specific performance of the alleged oral contract. Yet the effect of the decree here is to strip the plaintiff of his patent and give it to the defendant without any compensation whatever. The result, I think, is inequitable.

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