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(lefftiidants and interveners; the reason for this decision heing contained in the following language used by the learned Court:
" The evidence shows that the complainant not only has failed to perfo} m certain promises and undertakings on its part which largely constituted the consideration for which it was to be licensed, hut at the very time of so pron)ising and undertaking ' id not intend to fulfill its engagements, hut had an intention at that time ncjt to observe its promises and undertakings. The vital question here is not how the violation of conditions subsequent is to be taken advantage of, or whether the mere breach of a promise, though intentional, amounts to such misrepresentation as to authorize a lesciseion of the contract. It is whether one is entitled in equity to demand specific perfor mance who has not only failed to observe the terms and conditions entering into the heart of the contractual consideration, but became a party to the contiact with the intention at the time not to comply with such terms and conditions. One who enters into a contract impliedly makes a representation, as a fact, that he has an intention to perform it. An intention is just as much a matter of fact as any physical phenomenon. * * * This doctrine is sustained by an overwhelming weight of authority. Nor can one, guilt}' of such implied and fraudulent misrepresentation, conform to the lequirement of the maxim that one seeking equitable relief must come into court w ith clean hands."
The Facts.
The evidence conclusively establishes the following facts:
Early in the month of August, 190S, Gaston Melies called on Frank L. Dyer (who was the Vice-President of the Edison Company), in company with one J. J. Lodge (one of the promoters of the George Melies Com[)any), and stated that he desired to incorporate his business and that said Lodge would be associated with him in the corporation. Lodge stated that the capital of the company, to-wit, $75,000, would be contiibuted by himself and Mr.