Bijur Motor Lighting Co. v. Eclipse Mach. Co.

HOUGH, Circuit Judge (after stating the facts as above). [1] The foregoing facts we consider established; so did the lower court in substance ; and from that decision we should hesitate to depart, were we inclined so to do. The difference between spoken word and printed page is something that rightly gives to a decree, following open trial and dealiiiF with facts, a weight not easily overstated. Brookheim v. Greenbaum, 225 Fed. 763, 141 C. C. A. 89. From these physical facts, we infer that all the men who met on July 9th at counsel’s office infeuded to make a contract, if they could agree on terms, and we think the incentives to agreement obvious and considerable. Each had something to give or give up, constituting consideration. That a contract was made must also be found. It was a corporation’s contract, but that statement assumes that men intended to make, and did make, such corporate agreement. Men may contract in such incomplete, obscure, informal, or even illegal terms that their intention is not carried out by the form of words they sign; they may also sign a writing plain, formal, and of a legal import beyond the purposes or desires of some of the contracting parties. Corporations may do the same things; they have no thoughts or purposes other than those of the men controlling them. [2] When persons natural or artificial use words in contract making falling short of or going beyond intention, they must abide by the result of their efforts, unless a new agreement supersede the failure, mutual mistake of fact be shown, or fraud be established. There was no fraud in this instance; the plaintiff’s allegations in that behalf are not supported by the evidence. Nor was there any mutual mistake. Of die men talking together on July 9th, it is evident that Allen, Dunn, and Bendix departed feeling that their desires were accomplished. Bijur deposes that he regarded the whole matter as lentative, and dependent on the worth of Bendix’s German patent, while his attorney seems to have confined his activities to furnishing clerical conveniences, [604] after dictating to the stenographer much of the language afterwardswritten out. If he and Bijur did regard the signed document as no more than notes of talk, they neither said so at the time, nor inserted any such limitation in what they caused or permitted to be formally executed. Recognizing that relief from the writing relied on by defendants is not obtainable on grounds of fraud or mistake, plaintiff asserts that the paper which looks like a contract is incomplete because its enforcement depended upon approval of, or satisfaction with Bendix’s German patent claims; which would not serve Bijur’s turn at all, un-* less they “dominated Rushmore.” [3] There are “contracts to make a contract” if one party thereafter choose so to do. American, etc., Co. v. Simon, 140 Fed. 529, 72 C. C. A. 45; Id., 153 Fed. 1020, 82 C. C. A. 675. But such singularity must appear in the contract made; the incompleteness must there be completely apparent; it cannot be created by parol. No suggestion of Bijur’s reservation can be discerned in this document. [4] It is also possible that the parties to a written contract may contemporaneously make another oral agreement, on a matter as to-which the writing is silent. But such oral arrangement, to be enforceable, must be in respect of a matter distinct from that covered by the writing; one party cannot by parol set up in the guise of a separate-contract something which devitalizes the writing, and changes or aborts-the stated purposes thereof. Seitz v. Brewers’ etc., Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837; Harrison v. Fortlage, 161 U. S. 57, 16 Sup. Ct. 488, 40 L. Ed. 616. To accept this written agreement as meaning what-plaintiff contends for is to violate the rule just stated. While we think that no oral contract is proven, none is asserted that is enforceable. .[5] Plaintiff further urges that the attempted execution of the contract was not such as to bind the Bijur Company. Any corporate act presupposes a delegated authority (Bank v. Dandridge, 12 Wheat, at 70, 6 L. Ed. 552), but the manner or method of that delegation is a matter with which third parties are little concerned. The officers of a corporation are its agents, and if they act within their actual authority, or even within the apparent scope thereof, the corporation will be bound; the by-laws which ordinarily prescribe corporate methods are private regulations as to the outside world. Rathbun v. Snow, 123 N. Y. 349, 25 N. E. 379, 10 L. R. A. 355. We have said that as matter of fact -Mr. Bijur had- made contracts for the corporation, without especial authority from the directors. The instances are not numerous, but they are the only like contracts proved from the company’s-history; they related to matters similar to that under consideration,, and are sufficient proof (taken in conjunction with the other evidence) to establish a habit or course of business. It is obvious that, if this contract had been signed by Mr. Bijur personally, it never would have-occurred to anyone connected with the Bijur Company to cavil at the technical sufficiency of execution. If he had such power, he expressly delegated it in pursuance of a course of business, and Sun, etc., Co. v. Moore, 183 U. S. 643, 22 Sup. Ct. 240, 46 L. Ed. 366, is applicable. [605] [6] It is also alleged as error that the court below granted specific performance at the instance of defendants, although (1) Bendix himself broke the contract, and (2) the Eclipse Company did not unite in the contract, was not a party to it, and cannot be itself decreed to perform. (1) Bendix did not break his portion of.the agreement; he complied therewith and purchased the Remy invention, although the plaintiff apparently sought to' prevent such performance. In view of what Bendix actually did, the question whether plaintiff’s conduct did not absolve him from even attempting acquisition from Remy need not be discussed. (2) The Eclipse Company was made defendant herein solely as an alleged infringer; it is entitled to no specific performance and has obtained none. All its rights in and to the patent in question and under the contract made must be worked out through Bendix. The decree complained of is that á license such as was contemplated by the agreement must be given to Bendix. We have not the form of such license before us, but assume that, by the terms thereof, what Bendix may by sublicense give to the Eclipse Company will be (or has been) accurately defined in accordance with the language of the contract between plaintiff and Bendix. At all events, plaintiff’s rights against Eclipse Company are a part of its rights against Bendix as licensee. The Eclipse Company’s estate is but carved out of that conferred on Bendix. From whatever angle, viewed, this litigation ultimately presents an effort to change the plain meaning of a written document. The execution and delivery of that particular paper may have been ill advised; il may not even express Mr. Bijur’s wishes or all of them; but it is clear, a corporate act, not obtained by fraud nor based on mutual mistake of fact, and therefore cannot be varied nor set aside. Decree affirmed, with costs.