United States v. TW Corder, Inc.

• Decision Date: 04 December 1953
• Docket Number: No. 13363.,13363.
• Citation: 208 F.2d 411
• Parties: UNITED STATES v. T. W. CORDER, Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

208 F.2d 411 (1953)

UNITED STATES v. T. W. CORDER, Inc.

No. 13363.

United States Court of Appeals Ninth Circuit.

December 4, 1953.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, S. Billingsley Hill, Attorneys, Washington, D. C., M. Mitchell Bourquin, Sp. Asst. to Atty. Gen., Francis N. Foley, Sp. Atty., San Francisco, Cal., for appellant.

Erskine, Erskine & Tulley, J. Benton Tulley, Morse Erskine II, San Francisco, Cal., for appellee.

Before ORR and POPE, Circuit Judges, and LEMMON, District Judge.

ORR, Circuit Judge.

On March 1, 1942, appellee T. W. Corder, Inc., was the owner of a lot and building located in Oakland, California. It leased the lot and building to the United States, hereafter referred to as the Government, for a term ending June 30, 1942, at a monthly rental of $550 payable in advance on the first day of each month. The lease agreement contained a provision that the Government could renew the lease from year to year thereafter by notice in writing and also contained the following option to purchase:

"14. The Government, during the term of this lease and any renewal thereof, shall have the option to purchase the demised premises at not to exceed $75,000.00. Title shall be conveyed to the Government by general grant deed, free and clear of all encumbrances; provided that if the Attorney General upon examination of the abstract of title furnished by the Lessor, shall not approve the title and condemnation proceedings are instituted, the Lessor, if requested by the Government, agrees to the entry of a consent verdict fixing the award at the option price."

On June 30, 1943, the lease then being in full force by renewal, an amendment thereof was made so as to provide that the term of the lease should continue through June 30, 1944, and that unless the Government should give thirty days written notice of termination before June 30th of each year thereafter, the lease would remain in force from year to year without further notice but in no event beyond June 30, 1953.

On June 27, 1947, the Veterans' Administration sent a telegram to appellee reading as follows:

"The United States Of America By This Notice Elects To And Hereby Does Accept The Option To Purchase The Corder Building In The City Of Oakland, County Of Alameda, State Of California, And The Land Site Thereof Described As Being Lot No. 9 In Block No. 267 As Said Lot And Block Are Delineated And So Described Upon That Certain Map Entitled Quote Map Of The Casserly Tract On 14Th Street, Oakland Unquote Filed July 23, 1869 In The Office Of The Court Recorder Of Alameda County, And All Improvements Situate On Said Land. The Option Hereby Accepted Is Contained In Lease Contract V AM 21928 By And Between The United States Of America And T. W. Corder, Inc. Dated March 1, 1942 And Set Forth As Paragraph 14 Therein. Upon Receipt Of Confirmation Letter Which Follows, Kindly Advise This Office The Least Sum Of Money You Will Accept For Conveyance Of Fee Title Of The Above Described Property. (11CBA)"

On July 9, 1947, the Veterans' Administration wrote appellee a letter stating, in part:

"Subsequent negotiations for securing title evidence and the details concurrent with the transfer of title from your company to the United States of America will be initiated by the office of the Deputy Administrator of Veterans Affairs, Veterans Administration, Branch Office No. 12, 180 New Montgomery Street, San Francisco, California, who has been requested to communicate with you.

"As you are aware, vesting of title to the land and building must necessarily be subsequent to an opinion from the Attorney General as to the validity of the title held by your corporation. In view of the foregoing, it is the desire of the Veterans Administration that lease contract V Am-21928 remain in full force and effect until the deed to the land is recorded in the name of the Government, and the purchase price paid."

In answer to the Government's request to state its minimum price for the property, the appellee, on July 14, 1947, through its president, replied that it would "positively accept no less than $75,000.00 net to us."

On August 29, 1947, the Veterans' Administration notified appellee that its letter of July 9, 1947, stating that the lease was to "remain in full force and effect" was in error and "should be disregarded inasmuch as the Government is legally precluded from making rental payments subsequent to exercise of the purchase option" and claimed an overpayment of rent for the last three days of June 1947. The parties exchanged further correspondence with relation to the obligation of the Government to pay rent until payment of the purchase price.

On December 5,...