CROWELL v. GOULD

MILLER, Associate Justice.

Appellants, appearing jointly, filed a bill seeking specific performance of three agreements, two of which were executed by appellee and appellant Crowell, and the third by appellee and appellant Alderman. One of the former agreements, in turn, incorporated by reference three communications theretofore written by appellee to appellant Crowell, and in terms provided: "this instrument is to be construed in the light of the three communications. * * *" These six writings related to a device called an "Electric-eye project," invented by appellee, and for which an application for a patent was filed in the Patent Office subsequent to the dates of the several instruments which we are asked to construe.

Appellants contend that the various writings, read together, so clearly constitute contracts to assign percentages of right, title and interest in the invented device, and to assign percentages of the proceeds and earnings thereof, as to permit the issuance of a decree for specific performance. Appellee, on the other hand, contends that they constitute agreements merely to assign percentages of the proceeds and earnings to be derived from the exploitation of the invention. Elaborate analysis of the provisions of these six writings is not required to determine that they do not provide a proper basis for the relief sought.

The first five writings must be read together, and in relation to each other, in order to discover the terms of the contract between appellee and appellant Crowell. It will be observed from an examination of the excerpts set forth in the margin that the three communications prepared exclusively by appellee and addressed to appellant Crowell, namely, the letters of February 12, 19 and 27, 1936, are clear and unambiguous; they convey no interest in the device itself, but provide solely for the payment of commissions from, and the assignment of interests in, the anticipated proceeds of the invention. The two agreements, on the contrary, are equivocal and uncertain, each containing inconsistent provisions, as well as language ambiguous in itself.

The question which must be decided is whether there was a meeting of the minds of these parties concerning a duty to be performed by appellee, set forth so clearly in their writings as to make possible an order requiring him to perform that specific duty. Considering the five writings of appellee and appellant Crowell, in an effort to determine exactly what they had in mind, the most reasonable conclusion to be drawn from the entire record is that (1) appellee desired to assign an interest solely in the proceeds and profits of his invention; (2) appellant desired to procure an interest in the invention itself; (3) each of the parties tried to express his own point of view; and (4) as a result, there was produced a confusion of thought far removed from that definiteness, certainty, and freedom from ambiguity necessary for a decree of specific performance. Preston v. Preston, 95 U.S. 200, 202, 24 L.Ed. 494; Carr v. Duval, 14 Pet. 77, 10 L.Ed. 361; Repetti v. Maisak, 6 Mackey, 366, 370, 17 D.C. 366, 370; Evans v. Neumann, 51 App.D.C. 300, 278 F. 1013; Cleborne v. Totten, 61 App.D.C. 69, 57 F.2d 435; Durst v. Jolly, 35 Cal.App. 184, 169 P. 449.

The right to specific performance of a contract is not absolute. A bill seeking such relief is addressed to the conscience of the chancellor and the matter rests within his sound discretion. In order that such relief may be granted it must be shown that the contract in question is free from self-contradiction, and that there is no basis for a reasonable misunderstanding between the parties as to its purport and meaning. Colson v. Thompson, 2 Wheat. 336, 341, 4 L.Ed. 253; Dalzell v. Dueber Watch Case Mfg. Co., 149 U.S. 315, 326, 13 S.Ct. 886, 37 L.Ed. 749; Hennessy v. Woolworth, 128 U.S. 438, 442, 9 S.Ct. 109, 32 L.Ed. 500; Minnesota Tribune Co. v. Associated Press, 8 Cir., 83 F. 350, 357. In fact, there must be such clarity as to the meaning of the contract, and the pleader's right thereunder, that the court can require the specific thing to be done. It cannot substitute a contract of its own making for that of the parties. No such showing has been made here, and, consequently, appellant Crowell is not entitled to the relief prayed for.

Nor is appellant Alderman entitled to such relief. Although the confusion and uncertainty, so marked in the five writings heretofore discussed, is not present in the same degree in the agreement between appellee and appellant Alderman, when the latter is interpreted in the light of well-recognized principles of construction, it is manifestly nothing more than a contract for the assignment of a portion of the proceeds to be realized from the invention. Where recitals contained in a contract are ambiguous and the operative part is free from doubt, as in the present case, the operative part must prevail.

Appellants seek further to support their prayer for equitable relief by alleging in their bill that appellee "on a number of occasions indicated by oral statements to plaintiffs [appellants] his agreement with them that the true intent and meaning of said three agreements was that defendant [appellee] should assign to plaintiffs a title in the subject-matter * *; that he likewise so agreed in giving his oral assent to a certain written draft of a modified agreement (one of successive drafts of contemplated new agreements) in a conference on August 6, 1936, between plaintiffs and defendant, and one of plaintiffs' counsel acting as draftsman for plaintiffs and defendant." They also allege that appellee failed to cash a check delivered to him by one of the appellants, although the check "was endorsed by defendant [appellee] in the presence of said plaintiff [appellant Alderman] under a form written on the back of said check stating that it was on said account and was part of the consideration for said 30 per cent interest in said patent application."

Presumably, the purpose of these allegations is to lay a foundation for a decree of specific performance by clarifying the language of the writings by extrinsic evidence. See Preston v. Preston, supra; Repetti v. Maisak, supra; Davis Roesch Temperature Controlling Co. v. Tagliabue, 2 Cir., 159 F. 712, 714. It is not necessary for us to decide whether such evidence is admissible for that purpose because, assuming the truth of the allegations referred to, it is nevertheless clear that appellants are not entitled to the relief sought. Far from supporting appellants' position, they add to the uncertainty and ambiguity of the writings themselves, for — while the appellee is alleged to have confided in appellants' counsel an understanding in accord with the position taken by appellants, and although their counsel acted as draftsman — apparently none of the "successive drafts of contemplated new agreements" ever materialized into an executed agreement. Moreover, although appellee, in the presence of one of the appellants, endorsed a check under a form — apparently prepared by appellants — which was designed to acknowledge that the check was received in part "consideration for said 30 per cent interest in said patent application," still, appellee was so far from being in accord with appellants upon the subject that, once out of the presence of appellants, he preferred to forego the cash rather than allow the endorsed check to get into their possession. Appellee's conduct — as set out in the bill — shortly after the supposed accord and full meeting of the minds on August 6, 1936, in ceasing to deal with appellants, and engaging in a "studied course of evading" them, does not indicate clear understanding and absence of uncertainty.

Appellants also prayed for an injunction pendente lite restraining appellee from transferring or encumbering the invention and the patent application. As they are not entitled to specific performance they are likewise not entitled to an injunction ancillary thereto. No other ground for injunctive relief appears in the record. Lewis Spelling, The Law of Injunctions (1926) §§ 128, 129, 130, 134.

Affirmed.