FOLEY, District Judge.
Plaintiff prays for a decree for the specific performance of the agreement which was admitted in evidence as Exhibit "C" and which is as follows:
"This Agreement entered into this 24th day of September, 1945, by and between Irene Gladys Mapes, also known as Mrs. Chas. W. Mapes, of Reno, Nevada, hereinafter designated `first party,' and Charles W. Mapes, Jr., of the same place, and P. G. Denson, of Visalia, California, hereinafter designated `second parties'; Witnesseth:
"That whereas, the first party intends to construct a new fireproof hotel, apartment, store building and garage, the total expense of which is now estimated at $800,000.00, or thereabouts, at the Southeast corner of Virginia and First Streets in the City of Reno, Nevada, having a frontage on Virginia Street of 167.64 feet and a frontage on First Street of 139.55 feet, in accordance with plans, a copy of which are annexed hereto, and specifications which are to be prepared by The Moorehead Company of Los Angeles, California, and which plans and specifications must be approved in writing by the parties hereto before any lease on said premises shall become effective; and
"Whereas, inclusion of 12 feet of said frontage on Virginia Street, extending 139.55 feet easterly from Virginia Street is conditioned upon the first party consummating the purchase thereof from the City of Reno, negotiations therefor with the said City being now in progress; and
"Whereas, it is contemplated the first party shall grant a lease to the second parties and the second parties shall receive a lease from the first party of all of said structure when completed, except eight (8) store spaces on Virginia Street and three (3) store spaces on First Street, on the first floor of said structure, as shown by the preliminary plans dated August 31, 1945 made by the said Moorehead Company, a copy whereof is annexed hereto and made a part hereof.
"Now therefore, this Agreement further witnesseth:
"1. That in consideration of the premises and for other valuable and sufficient consideration present and received the receipt whereof is hereby mutually acknowledged by the parties, that contemporaneously with the execution and delivery hereof, the second parties shall deposit with the first party the sum of $20,000.00 in cash as a guarantee of their good faith and by way of inducement for the first party to enter into this agreement.
"2. That the first party agrees to complete said structure at said location subsequently, according to said completed and approved plans, and specifications to be prepared and approved, on or before January 1, 1947.
"3. The parties hereto shall immediately enter into a discussion with each other as to the terms, conditions and details of said lease; that the period of said lease shall be not less than twenty (20) years from the date the premises are in condition for possession thereof to be delivered. The parties hereto agree that when such terms, conditions and details have been mutually agreed upon they shall immediately thereupon enter into a written lease with each other for all of said structure when completed, with the exceptions above noted; provided, that the terms, conditions and details of said lease can be mutually agreed upon between the parties hereto within 10 days after the written contract for the construction of said structure has been entered into by the first party and within 10 days after the actual construction has been commenced.
"4. That said lease shall provide, among other things, that as soon as the hotel, rooms and apartments in said structure are ready for occupancy by the second parties, the second parties will at their own cost, now estimated at $150,000.00, provide and place in said structure such furniture, fixtures and equipment as shall be suitable, proper and necessary to furnish and equip the same as a first class hotel and apartment building.
"5. That the rental for said structure when completed, with the exceptions noted above, shall be as follows:
5% of gross receipts from food sales
10% of gross receipts from liquors, wines
and beer sales
30% of gross receipts from hotel, rooms
and apartments
"All rentals payable monthly.
"Provided, that in the event the said percentage of gross receipts shall not equal monthly —
For coffee shop, dining room and
kitchen, $ 600.00
For lounge, 1000.00
For Skyroom, 333.33
For Mezzanine Floor banquet
room, 150.00
then in such case, the second parties shall make up and pay to first party the deficiency on any of said four classifications so failing.
"If the lease is to include the garage, then the second parties shall pay monthly 10% of the gross garage receipts, or, if the first party leases the garage to a third person, the second parties are to have the privilege of garage service for their guests on terms to be mutually agreed upon.
"6. That said lease shall provide that the second parties are to execute and deliver to the first party a first chattel mortgage covering the furniture, fixtures and equipment placed in the hotel and apartments as aforesaid, to secure the rental payments as provided in said lease.
"7. That after said lease is executed between the parties hereto and if the second parties fail either to provide and place said furniture, fixtures and equipment in said hotel, rooms and apartments as aforesaid, or if they fail to execute and deliver said chattel mortgage as such security as herein required, then the cash so deposited with the first party shall belong absolutely to the first party as a consideration for her entering into this agreement.
"8. If after said lease is executed between the parties hereto as above provided, and the second parties provide and place said furniture, fixtures and equipment in said hotel and apartments as aforesaid, and the second parties execute and deliver said chattel mortgage as security as herein required, then the cash so deposited with the first party shall belong to and be delivered to said second parties by the first party.
"9. The second parties as a part of said lease, will guarantee to said first party that the total annual income from the entire building which the first party will receive will be in an amount at least sufficient to cover payments required of the first party for taxes, upkeep, insurance, interest on borrowed money, and to amortize the cost of said building within said lease period.
"10. The said lease shall contain all necessary provisions to fully effectuate the intent and purposes of the parties hereto as stated in this preliminary agreement and also to definitely set forth all usual or necessary conditions to the end that the rights and interests of each party shall be properly conserved and protected.
"11. Time is of the essence of each and every term, convenant and agreement herein mentioned.
"In witness whereof, the parties hereto have hereunto set their hands, the day and year first above written.
"/s/ Irene Gladys Mapes
"First Party
"/s/ Charles W. Mapes, Jr.
"/s/ P. G. Denson
"Second Party
"Witnesses to the Signature of First Party
"/s/ B. A. Yparraguirre
"/s/ H. R. Cooke
"Witnesses to the Signature of Charles W
Mapes, Jr.
"/s/ H. R. Cooke
"Witnesses to the Signature of P. G. Denson
"/s/ H. R. Cooke"
The above agreement though signed by plaintiff on October 4, 1945, has been referred to as the agreement of September 24, 1945.
By their answer the defendants among other things admit the following: The jurisdictional allegations of the complaint; status of defendants; the organization and existence of the Chas. W. Mapes Company, a co-partnership; that defendant Irene Gladys Mapes was, on the 24th day of September, 1945, seized in fee of the lands and premises described in the said agreement of September 24, 1945; that defendant Charles W. Mapes, Jr., is the son of defendant Irene Gladys Mapes and said Charles W. Mapes, Jr., has declined and refused, and continues to decline and refuse, to join as a party plaintiff herein.
The Court, having heard the testimony and having examined the proofs offered by the respective parties, and the cause having been submitted for decision, now finds the facts and states conclusions of law as follows:
Findings of Fact
1. That there was no combination or confederation between defendant Irene Gladys Mapes, Charles W. Mapes, Jr., and Gloria Mapes and the partnership referred to in the amended complaint to do any unlawful act or lawful act by unlawful means for the purpose of defeating the plaintiff or depriving him of any rights or equities to which he was entitled by virtue of the above set forth agreement, or to bring about a repudiation of said agreement; that the interests in this action of said Charles W. Mapes, Jr., are antagonistic and adverse to the plaintiff.
2. That the deed of conveyance of November 6, 1945, by Irene Gladys Mapes to herself as Mrs. Charles W. Mapes, Charles W. Mapes, Jr., and Gloria Mapes as co-partners doing business under the name of Chas. W. Mapes Company of Reno, Nevada, of the lands and premises described in said agreement of September 24, 1945, was made with the knowledge of all the defendants, including Gloria Mapes, of the existence of said agreement of September 24, 1945.
3. That on or about the 24th day of September, 1945, the above named plaintiff and the above named defendants entered into the written agreement above set forth, Exhibit "C."
4. That plaintiff did not, at the request of the defendant Irene Gladys Mapes, or otherwise, engage an architect and contractor to construct the hotel building, the subject matter of this action;...
