252 F. 397 | 9th Cir. | 1918
(after stating the facts as above).
‘•The only change therein is that in case you fail to notify us of your election not to purchase on or before 60 days prior to (he first day of July, 1916, then you shall be held to have leieeted to exercise the option of purchase contained in said contracts, and we shall thereupon become obligated to convey to you in manner as set forth in said contract of June 15, 1909, all of the proper-ties,” etc. “ * " * The notice to be given under said contract of July 0, 1915, shall be sufficient if deposited in the United States mails, postage prepaid, and inclosed in an envelope addressed to eithfer of us at the city of Great Falls, county ol' Cascade, state of Montana.”
Upon April 19, 1916, the manager of the Gypsum Company wrote to Mackey, the president of the Mackey Company, at Minneapolis, the following letter:
“Dear Sir: On May 5th our option to purchase your mill property at Great Falls expires, i am writing you in advance of that date to inform you that conditions in Montana at lilis time are such that it will be necessary for us m cancel our arrangement with you at the time of its expiration, which is July 5th. We have had men looking for gypsum almost constantly since our last meeting, and so far our efforts have been fruitless. If you care to come*400 down and talk the matter over, we will tie glad to have you do so. Expect to give you formal notice on May 5th that we do not care to purchase your property.”
Thereafter M'ackéy went to Chicago, and about April 28th had a conference with the manager of the Gypsum Company. Possibilities of continued lease were spoken of, but according to the testimony of Mackey the manager of the Gypsum Company told him that on May 4th or 5th formal notice declining to purchase would be sent, to which Mackey replied that whatever they decided to do should be sent to him care Mr. Cooper at Great Falls.
Was there a waiver of the need of further notice after the conference of April 28th, and did Mackey by his conduct estop himself from asserting that he was entitled to any further notice ? It is true that in the conversations between Mackey and the agents of the Gypsum Company in Chicago there was talk of another extension of the lease, and Mackey spoke of personally examining the properties, and was given a letter by the Gypsum Company to its superintendent in Montana which would enable Mackey to inspect the property for himself; but no definite proposition of lease was made, and no agreement of any kind was entered into, and Mackey’s evidence is that, when a proposition of continuing the lease was discussed, he told Mr. Knode of the Gypsum Company to put in writing whatever they had in mind and send it to Mr. Cooper. He said that when they were discussing a lease he had, no means of knowing what they had in mind, and that when he left he was not aware that they had decided not to buy; nor did he visit the properties and present his letter of introduction.
It would extend this opinion too far to quote at length from the testimony. We have gone over it very carefully, and are unable to infer that Mackey had reason to believe that no formal notice would be sent, nor do we perceive that Mackey by his statements or conduct induced the Gypsum Company representatives to act upon the belief that he waived or would waive the notice to which his company was entitled.
“The lessee shall not and will not assign this indenture, nor permit any other person or corporation to use or occupy any part of the premises hereby demised without first having obtained the written consent of the lessor, its successors or assigns, thereto.”
Appellant’s argument is that equity could not compel the Mackey Company to obtain the written consent of the Railway Company to the assignment of the lease of June, 1908, to the Gypsum Company; that inasmuch as the Railway Company was not a party to the contract of June, 1909, between the Mackey Company and the Gypsum Company, the court would have no jurisdiction to require the Railway Company 'to .do anything concerning the leasehold in the action between the two companies here involved. . The force of this contention is met by the fact that the Gypsum Company went into possession and continued to occupy the property affected by the lease from the Railway Company for a number of years before this suit was instituted, and throughout the period paid to the Railway Company the rentals as they became due under the lease, copy of which was attached to the agreement between the Gypsum Company and the Mackey Company; and furthermore by the evidence that just before' the last two- named companies made their agreement in June, 1909, counsel for the Gypsum Company prepared the consent of the Railway Company to' the subleasing of the property and the subsequent assignment thereof and forwarded the written consent in duplicate to the general traffic manager of the Railway Company at St. Paul, with a letter asking immediate execution by the Railway Company and the mailing of the same to the president of the Gypsum Company and td the Mackey Company. It also appears that the traffic manager of the Railway Company, by letter to counsel at Great Falls dated June 12, 1909, returned a copy of the written consent, and stated that he had sent a copy to the president of the Gypsum Company at Chicago. Under the circumstances the proof was clear that consent was given by the Railway Company before the original contract was executed, and there was no want of mutuality of remedy.
It is said, however, that upon the trial of the case the Mackey Company made no showing that it had procured and delivered to the Gypsum Company the heretofore referred to written consent of the Railway Company to an assignment of the lease. This is a correct statement, and when the District Judge announced his opinion he held that specific performance of the contract would not be decreed without evidence of the written consent of the Railway Company, and he directed that if within 30 days the Mackey Company obtained the consent decree would be made in its favor; otherwise, decree would be for de~
’ The court acted upon cause shown which was satisfactory, and we find no substantial reason for disturbing- its action in the matter. The depositions need not be set forth. . Suffice it to say that they satisfactorily established the execution of the consent by one of the vice presidents -of the Railway Company in June, 1909, prior to the execution of the agreement between the parties to the present litigation. The objection that it was not shown that the records of the Railway Company were properly kept is not well taken, considering the testimony of the secretary and treasurer, who was the custodian of the earlier, as well as the present, records of the corporation, and the by laws which were put in evidence. Union Trust Co. v. Dickinson, 30 Cal. App. 91, 157 Pac. 615; Gold Glen Mining Co. v. Dennis, 21 Colo. App. 284, 121 Pac. 677.
We find no error in the record, and affirm the decree.
<&wkey;>i'or other eases see same topic & KE Y-NUMBI5IÍ in all Key-Numbered Digests & Indexes
<g^s>For other cases see same topic & KSY-NUMBEK. in all Key-Numbered Digests '& Indexes