Collins v. Fidelity Trust Co. of Seattle

• Decision Date: 03 October 1903
• Citation: 73 P. 1121,33 Wash. 136
• Parties: COLLINS v. FIDELITY TRUST CO. OF SEATTLE.
• Court: Washington Supreme Court

73 P. 1121

33 Wash. 136

COLLINS v. FIDELITY TRUST CO. OF SEATTLE.

Supreme Court of Washington

October 3, 1903

Appeal from Superior Court, King County; Geo. Meade Emory, Judge.

Action by John Collins against the Fidelity Trust Company of Seattle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Roberts & Leehey and John B. Hart, for appellant.

Wm. Martin and Jas. F. McElroy. for respondent.

DUNBAR J.

This is an action to compel specific performance of an alleged agreement to assign a lease of a portion of the harbor area upon the Seattle water front. The lease is from the state of Washington to appellant, Fidelity Trust Company. Appellant corporation was formed in 1894, and to it respondent Collins, conveyed certain property. Several years later differences arose between him and the management of the corporation, resulting in four lawsuits entitled 'Connor v. Collins,' 'Fidelity Trust Company v. Colman,' 'Martin v. Fidelity Trust Company,' and 'Collins v. Fidelity Trust Company.' In all these cases William Martin, Esq., was attorney for respondent Collins, and Messrs. Roberts & Leehey and Will E. Humphrey attorneys for the corporation. These suits were pending on May 3, 1901, and at that date Mr. Roberts went to the office of Mr. Martin, and they entered into an agreement for the settlement of the same. The agreement is in leadpencil, and is in the hand-writing of Mr. Roberts, with the exception, as the appellant claims, of a few words penciled therein by Mr Martin; the respondent claiming that the words over which this contest has arisen were written by Mr. Roberts, and were in the first draft of the agreement. The agreement was as follows:

'May 3, 1901.

'Collins surrender 6,240 shares stock and trust certificate on Island Co. land.

'Fidelity Trust Co. make special warranty deed to Collins for all real estate conveyed by him to Co. mtg. of tide land assumed by Collins [& take property in mtg.] Company also to convey to Collins 1/2 int. in Anacortes judgment. All moneys now on hand belonging to corporation, except Coleman money now in court, to go to plaintiff. Collins vs. Fidelity Trust Co. to be dismissed, each party to pay own cost.

'Defendants to have Coleman money now in court & to have no other money from plff.

'Defendants to pay no cost of receivership. Martin vs. F Tr. Co. to be dismissed without cost to either party.

'Conner vs. Collins to be dismissed at without cost to either party.

'F. T. Co. vs. Coleman to be dismissed without cost, & a release of all claims against each other growing out of any of said suits.

'Roberts & Leehey,

'Attys. for Defts.

'Wm. Martin,

'Atty. for Plf.'

The suits mentioned in the memorandum were dismissed according to the agreement, although objection thereto that the conditions of the agreement had not been complied with was made by the respondent. The court, however, ruled that the suits should be dismissed under the agreement, and that, if the respondent had any cause of complaint against the appellant growing out of the failure to carry out the provisions of the agreement, he must bring a separate action to obtain his rights. The contest arose over the expression in brackets '& take property in mtg.,' the lease being the most valuable part of the property mortgaged, and the appellant refusing to assign it to the respondent, claiming that the words '& take property in mtg.' were not in the original agreement as signed by the parties, but that they had been fraudulently entered there since the making of the agreement; while the contention of the respondent is that the words above referred to were in the original agreement, and were written at the same time that the remainder of the agreement was written. This is the main contention in the case. A jury was impaneled to try certain questions of fact, and found in favor of respondent on the controverted questions. The court also found that the words '& take property in mtg.' were in the agreement at the time it was signed by the respective attorneys of the parties, and formed a part of said agreement; that the same was mutually entered into by the plaintiff and the defendant; that the plaintiff, John Collins, had complied with all the terms and conditions of said agreement; that he had paid the defendant, and the defendant had received and accepted, the consideration and property it was entitled to receive under its said agreement, and still retains the same. These are all the findings of fact that it is necessary to discuss here. The conclusion was that Collins was entitled to a decree of specific performance directing the Fidelity Trust Company to assign and deliver said lease, and enjoining the defendant and its officers or agents from in any manner claiming any interest in or to said lease. Judgment was entered accordingly, and the appeal is taken.

An analysis of the voluminous testimony in this case would be unprofitable. It is sufficient to say in that regard that an examination of all the testimony satisfies us that both the special findings of the...