Northwestern Lumber Co. v. Grays Harbor & P. S. Ry. Co.

• Decision Date: 06 November 1913
• Docket Number: 1,866-C.
• Citation: 208 F. 624
• Court: U.S. District Court — Western District of Washington
• Parties: NORTHWESTERN LUMBER CO. v. GRAYS HARBOR & P.S. RY. CO. et al.

208 F. 624

NORTHWESTERN LUMBER CO. v. GRAYS HARBOR & P.S. RY. CO. et al.

No. 1,866-C.

United States District Court, W.D. Washington, Southern Division.

November 6, 1913

[Copyrighted Material Omitted]

Grosscup & Morrow, of Tacoma, Wash., for complainant.

Bogle Graves, Merritt & Bogle, of Seattle, Wash., for defendants.

CUSHMAN District Judge.

Complainant relies upon the following authorities: Windsor v. St Paul, etc., Ry. Co., 37 Wash. 156, 79 P. 613, 3 Ann.Cas. 62; No. American Trans. Co. v. Samuels, 146 F. 51, 76 C.C.A. 506; Bradley v. Steam Packet Co., 13 Pet. 89, 10 L.Ed. 72; Sultan Log. Co. v. Great Northern, 58 Wash. 604, 109 P. 320, 1020; Anderson v. Lumber Co., 30 Wash. 147, 70 P. 247; Moses v. Bank, 149 U.S. 298, 13 Sup.Ct. 900, 37 L.Ed. 743; Brashear v. West, 7 Pet. 609, 8 L.Ed. 801; McLean v. Sellers, 44 Mont. 389, 120 P. 242; Marden v. Leimbach, 115 Md. 206, 80 A. 958; Johnson v. Tribby, 27 App. D.C. 281; Willard v. Tayloe, 8 Wall. 557, 19 L.Ed. 501; Morgan v. Bell, 3 Wash. 554, 28 P. 925, 16 L.R.A. 614; Pomeroy's Equity Jurisprudence, Sec. 842; Frye on Specific Performance, Sec. 258; Storer v. Great Western Ry., 2 Young & Collier Chancery Reports, 48; Pembroke v. Thorpe, 3 Swanston's Ch. Rep. 482; Hawkes v. Eastern Counties Ry., 22 Chancellor's Reports, 739; Cathcart v. Robinson, 5 Pet. 277, 8 L.Ed. 120; Kentucky Distilleries, etc., Co. v. Blanton, 149 F. 40, 80 C.C.A. 343; Tayloe v. Insurance Co., 9 How. 390-405, 13 L.Ed. 187; Eames v. Insurance Co., 94 U.S. 621, 24 L.Ed. 298.

Defendants rely upon the following authorities: Swash v. Sharpstein, 14 Wash. 426, 44 P. 862, 32 L.R.A. 796; Hite & Raffeto v. Savannah Elec. Co., 164 F. 944, 90 C.C.A. 348; Crossley v. Maycock, 18 Eq.Cas. 180; Clark v. Davidson, 53 Wis. 317, 10 N.W. 384; Ellis v. Cary, 74 Wis. 176, 42 N.W. 252, 4 L.R.A. 55, 17 Am.St.Rep. 125; Brown on St. Frauds, Sec. 376; Sorensen v. Keyser, 51 F. 30, 2 C.C.A. 92; Bailey v. Railroad Co., 17 Wall. 96, 21 L.Ed.

611; Blake v. Co., 76 F. 624, 22 C.C.A. 430; De Witt v. Berry, 134 U.S. 306, 10 Sup.Ct. 536, 33 L.Ed. 896; Johnson v. Lara, 50 Wash. 368, 97 P. 231; Allen v. Treat, 48 Wash. 552, 94 P. 102; Hogan v. Kyle, 7 Wash. 600, 35 P. 399, 38 Am.St.Rep. 910; Peters v. Van Horn, 37 Wash. 550, 79 P. 1110; Morgan v. Bell, 3 Wash. 554, 565, 28 P. 925, 16 L.R.A. 614; 3 Pom.Eq.Jur. § 1410; McKinney v. Big H. & C. Co., 167 F. 770, 93 C.C.A. 258.

This cause is for decision upon the bill, answer, reply, and evidence thereunder. The bill is one for specific performance. Complainant is, and was, the owner of a large amount of real estate in the town of Hoquiam, and otherwise interested in certain business enterprises at that place.

The defendant Grays Harbor & Puget Sound Railway Company was, in 1908, seeking to obtain an entrance for its road to Hoquiam, and to acquire depot and terminal grounds, right of way, and franchises therein. The other defendants have succeeded to or acquired interests from the Grays Harbor & Puget Sound Railway Company, the nature of whose rights and liabilities among themselves it is not necessary to state. They will be mentioned herein as 'defendants.'

Through the chief engineer of said railroad company, it entered into negotiations with complainant, which resulted in complainant, in September, 1908, submitting three separate propositions to the defendant railroad company, through the latter's engineer. The second and third propositions were:

"Simpson Avenue Line,' with Depot Grounds in Block 50. Across Northwestern Lumber Company's log pocket on the extension of Simpson avenue, which is across lot 1 of tract 15, plat 9, Hoquiam Tide & Shore Lands; thence across or along Levee street, adjacent to blocks 70, 62, 61, eighty-eight feet in block 51 and two hundred and fifty feet, eleven inches, in block 50, together with the return right of way through blocks 62, 70 and 69, joining Northern Pacific right of way through those blocks and through lot 3, tract 15, plat 9, to Railroad avenue along Twelfth street vacated and adjoining Northern Pacific Track, to K street. This right of way to be adequate for double trackage except on its return or switch track through blocks 70, 69 and Twelfth street. Also to include for depot grounds the east 182 feet of block 50, all for the sum of $102,000.00, one hundred two thousand dollars.'

"Emerson's Proposition.' The same as Simpson Avenue Line omitting depot grounds in block 50 and adding the east half of blocks 62 & 61 and eighty-eight feet on Levee street by 100 feet in block 51, you to join with the Northwestern Lumber Company dedicating 50-foot street along the center line of blocks 61 & 62, for the sum of one hundred thirty-four thousand dollars ($134,000.00).'

In June, 1909, this offer was conditionally accepted by a letter from the railroad company's engineer to complainant, stating:

'We beg to advise you that we accept what is called the 'Emerson' proposition, contained in your letter to Mr. H. F. Baldwin dated September 25th, 1908, being your proposition for one hundred and thirty-four thousand ($134,000) dollars. We will present you a map showing in detail such proposition and a formal agreement shall be entered into, pending actual transfers. However, we will expect and you shall give us your co-operation in procuring other properties in Hoquiam and also franchises in Hoquiam. You shall without delay furnish our attorneys with abstracts of title and our attorneys shall have twenty (20) days after delivery of abstracts within which to examine same, and upon our attorneys passing title, and delivery by you to us of proper deeds of warranty to such property, we will pay you the aforesaid sum. All buildings to be removed by you within six months from date of deed.'

This, in turn, was accepted by the complainant. Thereafter a map was presented to complainant by the defendant's engineer. This map showed the location of a railroad bridge across the river in Hoquiam. Abstracts were, without delay, furnished the attorney of the defendant railroad company. These abstracts disclosed good title to the property, save in certain particulars, not material.

In June, 1909, the engineer of the defendant railroad company, who had conducted the negotiations, died, being succeeded, July 1, 1909, by Mr. J. R. Holman. There were conferences between the representatives of the parties upon the terms and details of the formal contract, mentioned in the defendant's acceptance.

The attorney for the railroad company and George H. Emerson, vice president of complainant, at length so far agreed upon a form of contract as to dictate a draft to complainant's stenographer, which was submitted to the president of the complainant company. It contained the following provision:

'7. It is agreed by the said first party and their officers, that they will cooperate with the said second party in procuring such franchises of the city of Hoquiam as it may desire and in procuring such additional rights of way in the city of Hoquiam as the second party may desire.'

The president of complainant refused to execute the contract until another paragraph was inserted, providing:

'8. It is stipulated by the first party that the construction of the approach to the proposed bridge on the extension of Simpson Ave. shall be so arranged as to interfere with the handling of logs in their mill pond the least possible, and with that object in view that an ample span shall be placed west of the west pier of the drawbridge, and that the bridge abutment be placed as nearly as possible, consistent with the economical spacing of the spans of said bridge, and in accordance with the requirements of the U.S. government, about thirty ft. into the river from the line of the piles of the first party's pond as such piles are now driven. It is also further stipulated by the first party that such bridge may be a joint user bridge with the city of Hoquiam provided the city of Hoquiam contributes its share of cost of construction and maintenance.'

The following provision was also inserted:

'1. The said party of the first part for the consideration of $134,000.00, to be paid by second party, Twenty thousand dollars of which is paid down by second party, the receipt whereof is hereby acknowledged, and the covenants and agreements hereinafter mentioned. * * * '

The contract, as then prepared, was, on July 7, 1909, forwarded to the railroad company at Seattle by complainant; but was returned, unexecuted, July 21st to the attorney of the railroad company in Hoquiam, by Mr. Holman, who had, on July 1st, succeeded to the position of engineer for the railroad company, after the decease of Mr. Baldwin. This attorney, July 23d, advised complainant that the railroad company would not execute the contract on account of its containing, in paragraph 8, the 'common user' bridge clause.

Conferences were had between the officers of complainant and the attorney of the railroad company, trying to reach an agreement concerning the objectionable provision; but without being able to do so. Thereafter, on September 15th, complainant demanded that the attorney for the railroad company return this formal contract to it, which he did on the same day, with the following letter:

'Per your request of this date I herewith hand you a proposed agreement between yourself as the party of the first part and Grays Harbor & Puget Sound Railway Company as the party of the second part, the same being with reference to the purchase of certain properties from you. Such agreement being dated July 7, 1909, and having been executed by you, but not by the railway company. I consider that since this agreement has not been executed by the railway company yet you are entitled to have it returned to you, but by so returning to

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