Cowley v. Northern Pac. R. Co.

• Decision Date: 15 April 1891
• Citation: 46 F. 325
• Parties: COWLEY v. NORTHERN PAC. R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 325

COWLEY v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Washington, Eastern Division.

April 15, 1891

George Turner, for plaintiff.

J. H Mitchell, Jr., for defendant.

HANFORD J.

This case was commenced in the district court of the territory of Washington for the fourth judicial district, and, according to the practice in which cases under a statute of the territory, it was tried before a referee, who reported to that court the evidence introduced by the parties, and also his findings of fact and conclusions of law. Objections to the report of the referee were filed, but before a hearing could be had thereon the admission of the state into the Union, and the consequent reorganization of the courts, intervened, and the case has been in due course transferred to this court. The plaintiff has moved against the report to set aside the findings of fact as a whole, and also to set aside the conclusions of law. The objections to the findings of fact in their entirety will be denied for the reason that a general objection is not good. It is necessary for a party complaining of error to specify the error. The plaintiff also moves to set aside the findings contained in the 7th, 8th, 11th, 19th, 20th, and 21st paragraphs of the findings of fact as not being supported by sufficient evidence, and as embodying legal conclusions, rather than conclusions of fact. I deny the motion as to the 7th, 8th 11th, and 20th, and sustain it as to the 19th and 21st. The 19th is a finding with relation to a power of attorney executed by the plaintiffs to Mr. Albert Hagan. I think the whole of the controversy relating to the power of attorney is irrelevant in this case. The power of attorney was not pleaded in the defendant's answer as a matter on which the defendant relied, and the testimony in the case shows that in all the proceedings and transactions between the parties affecting the material issues in the case this power of attorney was ignored,-- was not acted upon. There was no attempt to compromise the controversy between the parties through the medium of the attorney in fact by virtue of that power, and I think that the claim now asserted by the defendant in relation to the power of attorney is an after-thought. The twenty-first paragraph is unnecessary, in so far as it relates to mere facts; and in so far as it is a conclusion of law it is improper, if not erroneous; so that will be stricken out. The defendant has also filed exceptions to certain findings of fact that are specified, which exceptions are all overruled by the court; and the court now adopts the findings reported by the referee, excepting the nineteenth and twenty-first paragraphs, as the basis of this decision. They are as follows:

'First. That the Northern Pacific Railroad Company, (the defendant in this case,) on the 29th day of June, 1886, commenced an action in the district court, fourth judicial district Washington Territory, sitting in and for Spokane county, against H. T. Cowley, plaintiff in this case, to recover possession of certain lands in the complaint in that case described.

'Second. That said H. T. Cowley, (plaintiff in this case,) for answer to the complaint in the above-described suit, filed his answer, claiming equitable relief thereby, to-wit, specific performance of a contract to convey to him the land described in the complaint.

'Third. That on or about the-- day of April, 1887, the firm of Ganahl & Hagan, a law firm composed of Frank Ganahl and A. Hagan, were employed by Cowley to represent him in his defense in the case of N.P.R.R. Co. vs. Cowley, under a contract whereby they were to receive one-fourth of all money or land recovered by Cowley.

'Fourth. That at the November, 1887, term of the district court Emma Thomson was appointed referee to take evidence in the case, and as such referee caused the parties to appear before her at her office in the city of Spokane Falls on the 10th day of May, 1888, to take said testimony. The N.P.R.R.

Co. appeared by its attorney, J. H. Mitchell, Jr. and the defendant, Cowley, by Ganahl & Hagan, his attorneys. Upon agreement of parties, taking of testimony was postponed until May 11th, the same being the next day.

'Fifth. That upon the said 10th day of May, 1888, Paul Schulze, general land agent of the N.P.R.R. Co., and its duly-authorized agent, upon behalf of the company, made a proposition of settlement to Ganahl & Hagan, attorneys for Cowley, of the differences concerning the land in dispute in case of N.P.R.R. Co. vs. Cowley, the proposition being this: The railroad company would give Cowley $8,000 cash, and convey to him a tract of land upon which Cowley's improvements were, and comprising about seven and one-half acres; the company to retain the balance of the land.

'Sixth. That Ganahl & Hagan thereupon informed Cowley of the proposition, and what it was, and advised him to accept it, as there was an estoppel in his case that would prevent him from recovering the land, in their judgment.

'Seventh. That upon the evening of said 10th day of May, 1888, said Schulze, Hagan, and Mitchell went to the residence of Cowley in the city of Spokane Falls, and met there Cowley and Mrs. Cowley, his wife. The proposition above referred to was discussed by them, and an oral agreement of settlement, settling their differences, was entered into, which agreement was in substance as follows, to-wit: The R.R. Co. was to give Cowley $8,000 and a tract of land upon which Cowley's improvements were, embracing about seven and one-half acres. The R.R. Co. was to retain the balance of the land. Schulze further agreed to give Mrs. Cowley, or any person she might designate, two lots of land for church purposes; these two lots were to be given by Schulze personally. The R.R. Co. was to pay all costs that had been incurred in the case. The respective attorneys in the case were to prepare all necessary papers for settlement, but nothing was said as to the kind and character of papers necessary. The $8,000 and papers were to be sent to J. N. Glover, president of the First National Bank, Spokane Falls, W.T., who should deliver the same to Cowley or his attorneys; and it was calculated that the money and these papers would arrive about the 16th day of May following. Nothing was said as to the manner in which the case of the N.P.R.R. Co. vs. Cowley should be disposed, further than that a disposition of the same should be made by the attorneys.

'Eighth. That on Monday, the 14th day of May, 1888, Schulze secured a draft for $8,000, payable to the order of J. N. Glover; also had prepared a certificate of sale from the N.P.R.R. Co. to Cowley, duly executed by the company, conveying to Cowley the seven and one-half acres mentioned in the agreement of settlement; also a plat of said land; and also a quitclaim deed from Cowley and wife to the R.R. Co. for all land claimed by the company in the complaint; placed these all in an envelope, and sent the same to J. N. Glover. In said envelope was also a letter of instructions to Glover, directing him to see Cowley and his attorneys, and, upon Cowley signing and executing the quitclaim deed, he should turn over and deliver to them the money, certificate of sale, and plat. All of said documents and money were received by said Glover on the 16th day of May.

'Ninth. On the 15th day of May, 1888, Cowley went to the office of one of his attorneys, to-wit, Hagan, and informed him that he was dissatisfied with the settlement, and that he desired to employ associate counsel to assist them, (Ganahl & Hagan,) to which Hagan objected, except they (Ganahl & Hagan) should be paid the amount due them for their fees; whereupon negotiations for settlement of fees were entered into between them.

'Tenth. That on the 15th day of May Cowley also sent a telegram to Schulze to the effect that he must have additional time to consider proposition of settlement, which was received by Schulze upon same date, and was answered by him to the effect that there was nothing to consider; settlement had been made, papers and money had been sent.

'Eleventh. That upon receipt of money and papers on the 16th day of May Glover at once took all papers to the office of Ganahl & Hagan, where he found both members of the firm; also Cowley. Glover informed them that he had received all the papers and money. He gave one of the attorneys the papers, and also exhibited to them his letter of instructions. He informed them that the money would be paid as soon as Cowley and wife would executed and deliver the quitclaim deed. He was informed that the matter would be attended to that day, and he would be called upon to pay the money. After Glover left, and upon same day, Cowley and wife refused to execute the quitclaim deed, and have so refused ever since said time. The money is now and has ever since said time been in Glover's hands, and ready to be turned over to Cowley upon delivery of quitclaim deed duly executed.

'Twelfth. That on the 17th day of May Cowley wrote and sent Mitchell and Schulze each a letter to the effect that the proposition of compromise had not been accepted; that Ganahl & Hagan had been discharged as his attorneys, and were not authorized to represent him, and all further communications should be made through his attorneys, Blake & Ridpath; which letters were received by them about the 19th day of May, and upon that day they each wrote Cowley to the effect that they would recognize no other attorneys in the case without the charges of former counsel were paid, and the names of other attorneys substituted by order of the court.

'Thirteenth. That on the said 17th day of May Cowley wrote a letter to Ganahl & Hagan, and had the same delivered to them, to the effect that he discharged them as his attorneys,...