Hegness

(dissenting).

This is a suit in equity brought upon a written instrument which is as follows:

“Memorandum of agreement made and entered into this 25th day of August, 1909, by and between Eugene Chilberg, of Nome, Alaska, party of the first part, and John Hegness, also of Nome, Alaska, party of the second part, witnesseth:

“That, whereas the parties hereto are desirous of securing mail contract to carry the United States mail between Nome, Alaska, and Unalakleet, Alaska, and are desirous of bidding upon proposal route No. 78136 and proposal route No. 78137, in the name of the party of the second part; and

“Whereas, the parties are desirous of forming a copartnership for the purpose of operating the said mail routes, or either of them, should the said contracts be obtained, and *329 are desirous of evidencing the terms of their said-copartnership in writing:

“Now, therefore, for and in consideration of the mutual promises and other good considerations it is agreed between the parties hereto as follows:

“First. That each of the parties hereto shall endeavor so far as he can to obtain the said contracts above mentioned, or either of them, and to that end the party of the first…

(after stating the facts as above).

The defendant contends that the contract of partnership which is sued upon is against public policy and void, *322 for the-reason that it tends to prevent or diminish competition. The defendant relies upon the decision of this court in Hoffman v. McMullen, 83 F. 372 , 28 C.C.A. 178 , 45 L.R.A. 410 , affirmed by the Supreme Court in 174 U.S. 639 , 19 S.Ct. 839 , 43 L.Ed. 1117 , and Atcheson v. Mallon, 43 N.Y. 147 , 3 Am.Rep. 678 . In Hoffman v. McMullen this court held that a contract to prevent competition and bidding for public works is contrary to public policy and cannot be enforced. The court said: “The rule is universal that agreements which, in their necessary operation upon the action of the parties, tend to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public or third parties, are against the principle of sound public policy, and are void.”

And the Supreme Court said: “It might readily be surmised that, if these parties had bid in competition, one or both of the bids would have been lower than their combined bid.”

■ The law as applied to contracts to carry the mails is expressed in…