Nor is the contract incapable of enforcement on the ground, if operative at all, it constituted a "mortgage on the brains and inventive genius" of A. J. and W. O. Bates during the time of their natural lives, as is most strenuously urged. The contract stipulated they were to become the owners of certain shares of stock in the corporation and were to devote their energies and inventions to the business, (of the proposed corporation,) “same as they were now doing" to the business of Bates Bros. It is usual in agreements for the formation of a co-partnership to fix a period for the determination thereof. If the articles of co-partnership do not specify the duration thereof it may be brought to an end at the election of any of the partners, unless formed for a particular enterprise and to effect a particular purpose, in which latter instance the completion of the enterprise or the accomplishment of the purpose will govern the duration of the co-partnership. (17 Am. & Eng. Ency. of Law,—1st ed.— p. 1096.) The agreement of January 28, 1888, entered into by A. J. and W. O. Bates and Mr. Winterbotham, though for the formation of an incorporated company, as between the parties thereto, carried into the administration of the business of the corporation the objects, covenants and undertakings of the various parties to the agreement. The corporation was not to be devoted to the completion of any particular enterprise or purpose, but to the prosecution of a general business in its particular line. The provisions with relation to the salary fixed to be paid to A. J. Bates, who was to serve as secretary and treasurer, and to W. O. Bates, as superintendent, contemplated the continuation of the enterprise for at least two years. After that period either of the parties had full right to absolve himself from the contractual relations created by the agreement. But to accomplish this, affirmative action on his part was essential, -either an actual declaration made to the other co-contracting parties, or some acts brought to their knowledge amounting to such

a declaration, from which such notice would be imputed, in law, as effectually as by an express formal declaration. The other parties to the contract were entitled to know that such course had been determined upon. A. J. Bates could not be permitted to enjoy the benefits of the agreement and secretly absolve himself from the duties and obligations on his part.

Nor is the contract void for want of mutuality. It is true that Mr. Winterbotham is not required to assign any inventions he may make to the corporation. Mr. Winterbotham's contributions to the capital of the firm were in the shape of money. The Bates brothers brought experience and the gifts of invention. It is not essential to the validity of a contract for a co-partnership that each partner shall render the same services to the business of the firm or make like contributions to the capital. One may contribute capital, another, or others, skill and experience. A particular contract is not wanting in mutuality because the contributions of the members to the capital stock or business of the firm are not the same in kind and nature. But in view of the fact the interests of third parties are involved, and are here believed to be paramount to those of the said contracting parties, we have not investigated the record with the view of determining the right and equity of the matter as between the said contracting parties. The decree must be affirmed for the reason we think under the circumstances of the case it would be inequitable to require the Consolidated Steel and Wire Company to assign the patents to the Bates Machine Company.

A prayer for specific performance of a contract is addressed to the sound judicial discretion of the chancellor. The discretion of the court is to be controlled by principles of justice and equity, and specific performance will not be decreed where, in the particular case, the enforcement of the performance would be an act of injustice. East St. Louis Railway Co. v. City of East St. Louis, 182 Ill. 433.

The Consolidated Steel and Wire Company entered into a contract with the Standard Railroad and Farm Fence Company and Robinson and A. J. Bates on the 14th day of September, 1895, whereby it became the purchaser of a machine for making woven wire fence then in course of construction under the superintendence of A. J. Bates, and obtained the obligation of A. J. Bates, said Robinson and said Standard Railroad and Farm Fence Company that the patents to be obtained on the said machine, when completed and perfected, and on the wire fence to be manufactured by said machine, should be assigned to said Consolidated Steel and Wire Company. By the same agreement the Consolidated Steel and Wire Company employed the said A. J. Bates, under a salary of $4000 per year, to give his entire and exclusive attention, services and skill to the completion and perfection of the said machine and fence. On the execution of this contract the said Consolidated company paid the sum of $40,000, (in cash $19,271.92, balance in payments to creditors of the Standard Railroad and Farm Fence Company and in settlement of accounts of said company,) and obligated itself to pay the additional sum of $40,000 when the said machine should be completed and the device for the fence and said machine patented and the patents assigned to the said Consolidated company. When the contract was entered into, the said Bates Machine Company was engaged in the construction of the machine for making the woven wire fence under an order given by said Cory E. Robinson. A. J. Bates was in charge of the work, which was being done in the plant of the Bates Machine Company, and the Bates Machine Company was receiving compensation for the work from Robinson and said Standard Machine Company. The said A. J. Bates, in compliance with the obligations of the contract with the said Consolidated company, as the employee of that company under a salary at the rate of $1000 per year, continued to devote his services and

skill to the completion and perfection of said machine and the plan and design of the fence the machine was constructed to manufacture. The officers of the Consolidated company came, from time to time, to the plant of the Bates Machine Company to see how the work was progressing, and paid A. J. Bates' salary regularly. In January, 1896, the work on the machine had progressed sufficiently to develop the fact that the fence to be constructed upon it would be too weak for actual use. The officers of the Consolidated company were notified, and Mr. Edenborn, president of the Consolidated company, came to the plant of the Bates Machine Company, and after a consultation with A. J. Bates it was decided the fence could not be used. A. J. Bates insisted he knew wherein the defect lay and that he could design and build another machine which would weave a fence that would answer the purpose. He was thereupon directed by the Consolidated company to proceed and make the new machine, and he devoted his time, skill and energy to the new machine as an employee of the Consolidated company, under the annual salary as aforesaid. This new machine was constructed in the plant of the Bates Machine Company, and that company rendered its bills for the work to Robinson and the Standard company. On the 12th day of June, 1896, the Consolidated company was formally notified the machine had been perfected and completed and was ready to be delivered in pursuance of the contract. The contract provided for a test of said machine by the operation thereof for a period of thirty days. The actual test of the machine, which consisted of weaving fence thereon, was entered upon in the Bates Machine Company's works, the wire being furnished by said Consolidated company, and the fence, as woven, being removed by the Consolidated company. The test was completed on the 25th day of July, 1896. The machine and the fence were satisfactory to the Consolidated company. On the 7th day of July, 1896, while the test

was in progress, the Bates Machine Company notified the Consolidated company that it claimed all inventions made or patented by said A. J. Bates, and notified it that all contracts for inventions for woven wire fencing, or machinery for making the same, should be made with the Bates Machine Company, and not with A. J. Bates. The Consolidated company, notwithstanding such notice, paid said A. J. Bates and said Robinson and the Standard Railroad and Farm Fence Company the remainder of the amount due under the contract, to-wit, the sum of $40,000, and said A. J. Bates made his applications for the patents in question as assignor of the said Consolidated Steel and Wire Company, and the patents, being those in controversy, were so issued to that company as assignee of said A. J. Bates. The Consolidated company had paid but one-half ($40,000) of the purchase money for the said patents when it received the notice from the Bates company that the latter corporation claimed the inventions and patents made or issued to said A. J. Bates, and paid the remainder of the purchase money ($40,000) after receiving such notice, and the appellant insists, that as the latter payment was made after due notice, the Consolidated company cannot be regarded as a bona fide purchaser of the patents.

The rule seems to be, that if one otherwise entitled to be regarded as a bona fide purchaser has paid a part, only, of the purchase money before notice of the rights of others, he will be protected, in equity, to the extent of the payments made before the receipt of the notice, but not for any payments made thereafter, and will not be protected as a bona fide owner. (14 Am. & Eng. Ency. of Law,-2d ed.—293.) Though recognizing the full force of the rule, it would not follow that a court of equity would enforce a specific performance in favor of the party serving such notice. As before remarked, the specific performance of a contract cannot be demanded as a matter of right, but is decreed within the judicial dis