Elsle Duprie Palmer, Appellant, v. S. E. Chamberlin et al., Appellees, 191 F.2d 859 (5th Cir. 1951)

The petition for rehearing in the above styled and numbered cause is hereby denied.

HOLMES, Circuit Judge (dissenting).

The majority opinion, in resolving against appellant some issues of fact presented by the record, not only relied upon the self-serving affidavit of the President of the company after this controversy arose, but also upon the acts and conduct of the Directors, after the Board of Directors had 'intimations that the said estate would not deliver said stock.' Certainly what the directors did confessedly in preparation for the prosecution of this suit should not be allowed to determine the question as to whether or not the bylaw is contrary to public policy. Among other issues, upon a plenary hearing, that should be submitted to a fact-finding tribunal is whether or not the directors have systematically administered the by-law with an evil eye and uneven hand. The appellant contends that this by-law and so-called contract are merely a cloak or device to permit the directors to use it, and that they have repeatedly used it, to further their own selfish ends at the expense of the other stockholders. I think appellant at least is entitled to a plenary hearing in this case.