188 F.2d 266 (9th Cir. 1951), 12612, Werner v. United States

Docket Nº:12612.
Citation:188 F.2d 266
Case Date:April 04, 1951
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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188 F.2d 266 (9th Cir. 1951)




No. 12612.

United States Court of Appeals, Ninth Circuit.

April 4, 1951

Erwin P. Werner, Los Angeles, Cal., is pro. per., for appellant.

A. Devitt Vanech, Asst. Atty. Gen., Ernest A. Tolin, U.S. Atty., Irl D. Brett,

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Sp. Asst. to Atty. Gen., Los Angeles, Cal., Roger P. Marquis, Harold S. Harrison, Attys., Dept. of Justice, Washington, D.C., for appellee.

Before DENMAN, Chief Judge, and BIGGS and ORR, Circuit Judges.

BIGGS, Circuit Judge.

The plaintiff and appellant, Werner, who appears here in propria persona, brought suit against the United States for reformation of a lease and to recover a sum of money as reasonable rent for use and occupancy of the land leased. The United States moved to dismiss and the court below granted the motion holding that the suit was barred by the time limitation imposed by Section 2401(a), Title 28 United States Code Annotated. 1 Werner appealed.

The lease, 2 executed February 1, 1943, was for the term of one year with a right of annual renewal and a right of cancellation in the United States. Its terms provided, however, that ' * * * no renewal * * * will extend the period of occupancy of the premises beyond six months from the date of the termination of the unlimited emergency, as declared by the President of the United States on May 27, 1941 (Proclamation 2487).' By an amendatory contract, executed three months later, the requirement that the United States give notice of renewal was deleted by the provision that the renewal should not extend the lease beyond ' * * * six * * * months from the date of the termination of unlimited emergency * * * ' was reiterated.

There has been no ' * * * termination of the unlimited national emergency * * * ' declared by President Roosevelt on May 27, 1941 by Proclamation 2487. 3 By Proclamation 2714 there was a declaration of ' * * * the cessation of hostilities of World War II * * * ' by President Truman, effective as of twelve o'clock noon on December 31, 1946. 4 Werner, however, in his complaint filed on November 8, 1949, employing the language of President Truman's proclamation of 1946, asserts

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that the words of the lease, quoted in the second paragraph of this opinion, must be reformed to mean that the possession of the United States must terminate " * * * six (6) months from the date of the cessation of actual hostilities * * * ' with the * * * Axis nations * * * .'

Section 2401(a), Title 28 United States Code Annotated, which the court below deemed to be governing, provides that 'Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. * * * '

Werner contends that a dispute as to the interpretation of the lease could not arise until the actual 'cessation of hostilities' or possibly until President Truman's Proclamation 2714 of December 31, 1946; that it follows that the statute of limitation created by Section 2401(a) could not begin to run until one of the two dates last mentioned. But this position is untenable. If the words used in the lease did not express the true intent and meaning of the parties that fact was entirely apparent when the lease was executed on February 1, 1943, remained apparent when the modifying lease which reiterated the critical phrase was executed three months later and continued to...

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