Dam v. General Electric Company

• Decision Date: 12 November 1958
• Docket Number: No. 15395.,15395.
• Citation: 265 F.2d 612
• Parties: Milton E. DAM and Everett S. Dam, Co-partners doing business under the Firm Name and Style of Dam Brothers, Appellants, v. GENERAL ELECTRIC COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

265 F.2d 612 (1958)

Milton E. DAM and Everett S. Dam, Co-partners doing business under the Firm Name and Style of Dam Brothers, Appellants, v. GENERAL ELECTRIC COMPANY, a corporation, Appellee.

No. 15395.

United States Court of Appeals Ninth Circuit.

November 12, 1958.

Phipps & Phipps, Harve H. Phipps, Sr., Harve H. Phipps, Jr., Spokane, Wash., for appellants.

Cooley, Crowley, Gaither, Godward, Castro & Huddleson, John H. Wallace, Edwin E. Huddleson, Jr., William W. Godward, San Francisco, Cal., Hamblen, Gilbert & Brooke, Philip S. Brooke, Spokane, Wash., for appellee.

Before STEPHENS, Chief Judge, and FEE and BARNES, Circuit Judges.

STEPHENS, Chief Judge.

Milton and Everett Dam appeal from a motion for summary judgment granted in favor of General Electric Company by Judge Sam M. Driver in the United States District Court for the Eastern District of Washington.

The Dam Brothers brought suit against General Electric alleging that General Electric had breached an oral contract made with the Dam Brothers in 1913, whereby it was agreed that these two parties would exploit the Priest Rapids area on the Columbia River in the state of Washington. The plaintiffs, Dam Brothers, were interested in the Priest Rapids area for an irrigation project, while General Electric was interested in the area for the development of hydro-electric power. There were obstacles to both plans, so they decided to join forces and develop the area jointly. The terms of the enterprise were allegedly worked out in New York during 1913 with many former executives of General Electric all of whom had died by 1944. The result of these negotiations was that there was an agreement for joint development of Priest Rapids. An attempt was to be made to secure additional land and sites in the area, and to secure passage of favorable water power legislation by Congress which would make it feasible to develop the Priest Rapids site. General Electric was to reward the Dam Brothers by giving them stock of considerable value in a number of corporations which were to be formed upon the passage of favorable legislation. These corporations were to be the vehicles by which the entire area was to be developed.

The records of the Federal Power Commission revealed that the Washington Irrigation and Development Company, pursuant to the Federal Water Power Act of 1920, 16 U.S.C.A. § 791a et seq. applied for a permit for a power project on the Columbia River at Priest Rapids. The trial court assumed for the purpose of the motion for summary judgment that Washington Irrigation was a wholly owned subsidiary of General Electric. A license was issued Washington Irrigation in 1925 with the proviso that construction must be commenced before March 1, 1929. The license was revoked in June of 1929 because construction had not begun as required, and an application for a new license was denied in July of 1930. Thereafter, nothing was done to develop this area, and the Dam Brothers allege that this was because of the generally depressed conditions during the 1930's and the world conflict that followed. However, in 1951 when the Dam Brothers allegedly learned that General Electric had disposed of certain lands in the Priest Rapids area through one of its subsidiaries, a letter was written to General Electric demanding that they perform the joint venture agreement. When there was no response to this demand, this suit was initiated.

It is claimed by the Dam Brothers that because General Electric has failed to fulfill its part of the contract of 1913 that they have been damaged in the amount of $8,500,000. They plead in the alternative also that the defendant General Electric has been unjustly enriched in the same amount.

To all this, General Electric answered and denied all the material allegations of the plaintiffs' complaint, and further alleged by way of affirmative defenses the statute of limitations and/or laches. On the basis of these affirmative defenses, they founded their motion for summary judgment which was granted.

The Dam Brothers as appellants allege many grounds for reversal, but basically their claim is that it was error to grant the motion for summary judgment in favor of General Electric, the appellee, because there were many issues of material fact that remain unresolved, and that there should have been a full hearing with witnesses called. The Court considered several affidavits submitted by both sides before granting the appellee's motion for summary judgment. From the evidence before the Court on this motion, the most that appears is that certain efforts were made to secure a license to construct a dam; the license was revoked in 1929, and its renewal denied in 1930. Appellants offer no counter-affidavit to rebut appellee's showing that none of the corporations that were supposed to be created in the furtherance of this joint enterprise were ever formed or ever did business in Washington. As far as appears from the record before the trial court, the last discernible effort was made in 1930. Some twenty-two years later this action was...