Whitney v. Dewey

• Decision Date: 02 December 1907
• Docket Number: 1,416.
• Citation: 158 F. 385
• Parties: WHITNEY v. DEWEY.
• Court: U.S. Court of Appeals — Ninth Circuit

158 F. 385

WHITNEY v. DEWEY.

No. 1,416.

United States Court of Appeals, Ninth Circuit.

December 2, 1907

Gavin McNab and Richards & Haga, for appellant.

W. E Borah, for appellee.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

HUNT District Judge.

W Grant Whitney, a citizen of Oregon, appellant, brought this suit against E. H. Dewey, a citizen of Idaho, appellee praying for a decree requiring Dewey to assign, quitclaim and set over to appellant all his (defendant's) right, title, and interest in and to certain real estate in the counties of Boise and Canyon, Idaho, as provided in an agreement dated September 7, 1899, between complainant and one Willard White, and for such other relief as is proper. Among the defenses set up by Dewey is the statute of limitations; that an action was begun and tried in a state court of Idaho, wherein Whitney, appellant here, was the plaintiff, and Dewey, appellee here, was the defendant, and that a judgment of the Supreme Court of the state of Idaho in the said suit has become final, and that Whitney is now estopped, by reason of said suit and judgment, from litigating any of the questions involved in this suit; that on January 25, 1900, one Beery and wife were the sole owners and seised in fee of the property involved, and that they conveyed the property by warranty deed to White, and at the time of the conveyance, no one else had any interest in the undivided half interest in said property now claimed by Dewey; that the conveyance of warranty to White was made with the full knowledge of Whitney, and that thereafter White conveyed to Cobban and Casey, who retained possession until sale to Dewey; and that Dewey, for a valuable consideration, became the owner of an undivided half interest in the property; and that, when the conveyances to Cobban and Casey and Dewey were made, none of said parties had knowledge of any claim or equity of Whitney or any one else; and that there never was any combination and confederacy, as charged in the bill. There was a trial and decree dismissing complainant's bill. Complainant appeals.

The essential facts are as follows: Complainant, prior to September 7, 1899, had located a water right on the Payette river in Idaho, whereby he appropriated a quantity of water for power and irrigation purposes, and had commenced proceedings to secure title to a right of way for a reservoir site in connection with his water appropriation. Complainant then met one Willard White, whom he heard was representing capital and could be of service to him. The two looked over the ground. In order to utilize a reservoir site, it was necessary to acquire certain land on which was situated a good dam site, the general purpose in view being the utilization of water for generating power. With a view to raising funds wherewith to carry out their plans, complainant and Willard White, upon September 7, 1899, entered into the following contract:

'This agreement witnesseth: Whereas, W. G. Whitney and Willard White having acquired a dam, a log storage and power site on the Payette river, at a point called the Black Rock Canyon about six miles above the town of Emmett in Canyon county, Idaho; and

'Whereas, it is proposed to secure sufficient funds with which to erect a dam at said site, about 30 feet in height, with a view of creating a large water power to be used in sawing lumber, elevating water upon both sides of the Payette river for the purpose of irrigation, and for generating electric power to be utilized for railway and such other purposes as may be found feasible.

'Now, therefore, in consideration of the premises, each of the parties hereto agrees to give his best efforts to the immediate accomplishment of the abovementioned project, and does agree that the parties hereto are to own an equal interest in such undertaking, share and share alike.

'It is further agreed that in the event the said White shall fail to raise sufficient funds to construct said dam or fail to make such progress as shall be satisfactory to said Whitney within one year from the date hereof, the said White agrees to assign all his right, title, and interest in the same to said Whitney.

'Witness our hands and seals this 7th day of September, 1899.

'W. Grant Whitney, 'Willard White.'

After making this agreement, the parties, believing that it was necessary to secure title to the land involved in this suit concluded to acquire the same from the owner, I. R. Beery, of Minneapolis, Minn. White, by agreement, was to obtain a contract from Beery for the purchase of the land. About December 26, 1899, White went to Minneapolis, and obtained a contract for purchase from Beery. This contract was between Beery and White. By its terms, in consideration of the covenants named in the contract to be performed by White, Beery agreed to sell, and White agreed to buy, the property now involved in this litigation. White agreed to pay to Beery $6,000-- $1,000 in cash was to be paid on or before February 1, 1900; and $5,000 in first mortgage bonds in a corporation to be formed for the purpose of developing a power plant at the site of the reservoir and dam, the bonds to be issued upon the property described, and improvements to be placed thereon. The contract also provided that in the event of a failure to comply with the terms thereof by White, Beery was to be relieved from all obligation to convey the property, and White should forfeit all right thereto at the option of Beery. It also provided that, upon payment in the time and manner specified, Beery was to execute to White and his assigns a sufficient deed conveying to White the title to the property. No money was paid to Beery under the terms of the contract. White then went to New York and other places to try and secure money to carry out the plans of himself and Whitney, and on his way back to Idaho, about January 25, 1900, again saw Beery, and obtained from him a warranty deed to the property. No money was paid to Beery for this deed. When White returned to Idaho, he told Whitney that he had talked with Beery about forming the company, and that Beery had suggested to him that he make him the deed, and that White should take it to be used when the conditions of the contract of December 26, 1899, were complied with. White also told Whitney that he took the deed to avoid any delays and as a matter of trust, and that, when the company would be formed and the conditions of the contract complied with, 'the deed should be turned to the company, but should be used for no other purpose. ' Beery never was paid any money, but did not declare forfeiture, as he was authorized to do under the provisions of the contract. White failed to raise the money to carry out the scheme of a corporation, and when September 7, 1900, came about, practically nothing had been effected by White toward obtaining money to build the dam. Whitney, however, did not notify White at that time that progress was not satisfactory to him, and, as White said he could succeed if allowed to go ahead, matters were permitted to run along for about seven months thereafter, or until April 1, 1901. During all this time Whitney advanced considerable money, though it had been agreed that White was to pay his own expenses. No company had been organized prior to April 1, 1900. No money had been obtained, and Whitney says he could not see that White had any prospects or definite plans ahead. Thereupon, about April 1, 1901, Whitney told White that what had been done was not satisfactory, that he could see no future to it, and that negotiations between himself and White, under the contract of September 7, 1899, must be at an end, and asked White to assign to him any interest he had under the contract. White told Whitney that he could not assign to him the deed which Beery had made to him because the property did not belong to him, but had been taken from Beery as a trust to enable matters of closing up the proposed company to be expedited, but that he (White) had no right to transfer it; that the deed was subject only to the conditions of the contract, and that, as there had been no money paid for the deed, if the contract could not be carried out, the deed would be of no validity, and that he could not transfer it for that reason. From April 1, 1901, Whitney and White never have had any personal dealings with each other, although there was some negotiation through counsel for a payment by Whitney to White, by way of compromise for any possible claim or interest White might have. After Whitney and White dissolved their relationship, Whitney, still believing that the warranty deed of January 25, 1900, was invalid, negotiated directly with Beery for the purchase of the land involved, and on May 13, 1901, Beery, by quitclaim deed, conveyed the land to Whitney in consideration of $1,000 cash paid to him by Whitney. This quitclaim deed was recorded in the proper offices in Idaho about May 21, 1901. Whitney made some improvements upon the property very soon after receiving the deed. Thereafter, about August 7, 1901, White, in consideration of $1,800, gave a quitclaim deed to the firm of Cobban & Casey for an undivided half interest in the land herein involved. Prior to that date, about May 22d, Whitney met R. M. Cobban, of the firm of Cobban & Casey, and told him that he and White had dissolved, told him of the contract of September 7, 1899, between himself and White, and that White no longer had an interest in the property, but that complainant and one Davis had control. Thereafter, on September 27, 1902, Cobban & Casey, in consideration of about $2,000, quitclaimed to the appellee Dewey whatever interest they had in the land in question, by reason of their deed from White. Before they quitcla...