(concurring).

While I have some reservations about the suggestion in the court’s opinion that statutory exceptions should be “treated as affirmative defenses”, yet I am heartily in accord with Judge FEE’S statement: “The spirit of the Rules is that technical requirements are abolished and that judgments be founded on facts and not on formalistic defects.” I think a case of this importance, in a field where the law remains unsettled, ought not to be disposed of upon a mere motion to dismiss without opportunity to develop what the precise facts are.

That is the point of Kennedy v. Silas Mason Co., 334 U.S. 249 , 68 S.Ct. 1031 , 92 L.Ed. 1347 . This court followed that case in Pacific American Fisheries v. Mullaney, 9 Cir., 191 F.2d 137, 141 . In the Silas Mason case, noting it was an important one, the Supreme Court refused to dispose of it upon a motion for summary judgment notwithstanding the motion may have been technically correct. Said the Court: ( 334 U.S. at page 256 , 68 S.Ct. at page 1034 ) “No conclusion in such a case should prudently be rested on an indefinite factual foundation.” Also, ( 334 U.S. at page 257 , 68 S.Ct. at page 1034 ): “We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts.”

The attitude of the Silas Mason case toward rulings based on the sufficiency of a complaint alone was again expressed m Conley v. Gibson, 355 U.S. 41, 45 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80 : “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 1

In this constantly expanding area of the Tort Claims Act it would appear that the Supreme Court is trying to follow the spirit of the Act in giving it a liberal interpretation. In this case, if the facts are fully developed we may find a cause of action which the Supreme Court will hold not within any exception to the Act. Let me illustrate. One exception asserted here is that under subdivision “h” of § 2680 of Title 28 relating to “any claim arising out of * * * interference with contract rights.” If the Supreme Court follows the tendency indicated in the court’s opinion it may well give that exception a strict construction. The plaintiff, as I understand the case, had no contracts with government employees on the base, but he did have certain legally recognizable rights which in ordinary cases are subject to enforcement or protection. What the plaintiff had here was a right to negotiate for leases; a right to seek customers; a right of expectation of business dealings with those people. This was not strictly speaking a contract right because no such contracts had been made. See our opinion in Beacon Theatres v. Westover, 252 F.2d 864, 866 , discussing the “right so [to] negotiate”. Tortious conduct destructive of appellant’s “right to negotiate” for tenants may well be something not within the stated exception relating to “contract rights”.

. The court cited Dioguardi v. Durning, 2 Cir., 139 F.2d 774 , 775: “It would seem, however, that he has stated enough to withstand a mere formal motion, direeled only to the face of the complaint, and that here is another instance of judicial haste which in the long run makes waste.”