(222 Fed. 70)

RUTHVEN v. UNITED STATES

(Circuit Court of Appeals, Fifth Circuit. April 9, 1915.)

No. 2545.

POST OFFICE 48-OFFENSES-SCHEME TO DEFRAUD-INDICTMENT.

An indictment for the violation of Cr. Code (Act March 4, 1909, c. 321, § 215, 35 Stat. 1092 [Comp. St. 1913, § 10388]), making punishable one who, having devised a scheme to defraud, shall, for the purposes of executing such scheme, place a letter in any post office to be delivered by the post office establishment, need not allege that the scheme was to be effected by the use of the United States mails.

[Ed. Note. For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. 48.

Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]

In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.

Alfred L. Ruthven was convicted of using the mails in furtherance of a scheme to defraud, and he brings error. Affirmed.

Armand Romain, of New Orleans, La., for plaintiff in error. Walter Guion, U. S. Atty., and Joseph W. Montgomery, Asst. U. S. Atty., both of New Orleans, La., for the United States.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

PER CURIAM. The plaintiff in error was indicted, convicted, and sentenced for violation of section 215 of the Criminal Code. The record shows no bill of exceptions, and the only error assigned is that the trial court erred in overruling a general demurrer to the sufficiency of the indictment, and the contention here is that the indictment was insufficient, because the scheme therein set forth does not on its face sufficiently show a scheme to defraud within the law, and because it fails to aver that the scheme and artifice of the plaintiff in error charged was to be effected by the use of the United States mails.

The indictment sufficiently charges a scheme or artifice to defraud. It was not necessary to charge that it was to be effected through and by the use of the United States mails, and this precise question has been lately before the Supreme Court, and there decided adversely to the contention of plaintiff in error. United States v. Young, 232 U. S. 155-161, 34 Sup. Ct. 303, 58 L. Ed. 548. On the authority of that case, the judgment of the District Court is affirmed.

Considering letters on file, addressed to the court, urging a speedy disposition of the case, mandate may issue at once.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(221 Fed. 807)

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

(Circuit Court of Appeals, Ninth Circuit.

February 15, 1915.)

No. 2423.

1. SPECIFIC PERFORMANCE 37 CONTRACTS ENFORCEABLE SALE OF REAL ESTATE.

Where a preliminary agreement for a sale of real estate, in the form of a letter and acceptance, contained a provision that "a formal agreement shall be entered into, pending actual transfers," such formal agreement, if it is to contain anything more than mere detail, is essential to a completed contract which may be specifically enforced in equity.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 108112; Dec. Dig. 37.]

2. SPECIFIC PERFORMANCE 37-CONTRACT ENFORCEABLE-SALE OF REAL ESTATE

An agreement was made by letter and acceptance for the sale by complainant to defendant railroad company of real estate for right of way and terminal purposes in a city. It provided that, pending actual transfers, a formal contract should be entered into. Such a contract was prepared by representatives of both parties and signed by defendant; but complainant, before signing, changed it by adding two provisions: The first, that there should be a cash payment on its execution, which was contrary to the terms of the preliminary agreement; and the second, that a bridge which it was necessary for defendant to build should be for the common use of defendant and the city, provided the city would contribute its share of cost and maintenance, which was entirely outside of such agreement. Defendant objected to the latter provision, because it was negotiating with the city in relation to the bridge, and wanted it stricken out, or that the matter should stand open until it came to an agreement with the city. Complainant demanded and received back the contract it had signed, and nothing further was done for more than a year, when defendant, having reached an agreement with the city, notified complainant that it was ready to close the contract. Complainant then demanded $10,000 additional for the property as interest, which defendant refused to pay. Complainant made no tender of performance. A year later, after defendant had made other arrangements for entering the city, complainant tendered deeds and demanded payment of the price originally agreed upon, which was refused. Held, that the minds of the parties had never met on a contract which could be specifically enforced in equity, but, on the contrary, it had been definitely abandoned when complainant demanded and defendant refused payment of interest, which was not provided for in the preliminary agreement.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 108-112; Dec. Dig. 37.]

Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.

Suit in equity by the Northwestern Lumber Company against the Grays Harbor & Puget Sound Railway Company, the Oregon & Washington Railroad Company, the Oregon-Washington Railroad & Navigation Company, and the Chicago, Milwaukee & Puget Sound Railroad Company. Decree for defendants, and complainant appeals. Affirmed. For opinion below, see 208 Fed. 624.

The Northwestern Lumber Company, plaintiff in the court below, is a corporation organized under the laws of the state of California. The defendants

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Grays Harbor & Puget Sound Railway Company and the Chicago, Milwaukee & Puget Sound Railway Company are corporations of the state of Washington. The defendant Oregon & Washington Railroad Company and the defendant Oregon-Washington Railroad & Navigation Company are corporations of the state of Oregon. The term "Lumber Company" will be used in this opinion to refer to the Northwestern Lumber Company. The term “Railway Company" will be used to refer to the Grays Harbor & Puget Sound Railway Company.

The city of Hoquiam is situated on Grays Harbor, in Chehalis county, Wash., at the mouth of the Hoquiam river. The river flows through the city and divides it into two sections. The larger section, in which are located the lands involved in this suit, is the business section, and lies on the west bank of the river, and is known as West Hoquiam. The residence district of the city lies on the east side of the river, and is known as East Hoquiam.

In the year 1908 the Railway Company began the construction of a line of railway extending from the city of Centralia, in Lewis county, Wash., into the city of Hoquiam. The proposed route of the railway was from Centralia to Aberdeen, thence to and through East Hoquiam to the Hoquiam river, and thence across the Hoquiam river by bridge into West Hoquiam, where the railway company proposed to erect a depot and other station buildings.

The Lumber Company was at that time the owner of a large body of land extending along the Hoquiam river in West Hoquiam; and in September, 1908, the Railway Company entered into negotiations with the Lumber Company with a view of acquiring a right of way for its road through the lands of the Lumber Company. As a result of these negotiations, the Lumber Company, on September 25, 1908, submitted to the Railway Company, in writing, four proposed rights of way through its property, designated, respectively, the "Railroad Avenue Line," the "River Avenue Line," the "Simpson Avenue Line," and the "Emerson Proposition."

The proposal respecting the "Simpson Avenue Line" was as follows: ""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, plate 9, Hoquiam Tide and Shore Lands; thence across or along Levee street, adjacent to blocks 70, 62, 61, 88 feet in block 51, and 250 feet 11 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, plate 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 one hundred two thousand dollars ($102,000.00).”

The proposal respecting the "Emerson Proposition" was as follows: "Emerson's Proposition.' The same as Simpson Avenue Line, omitting depot grounds in block 50 and adding the east half of blocks 62 and 61 and 88 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 and 62, for the sum of one hundred thirty-four thousand dollars ($134,000.00)." After due consideration of the several propositions submitted by the Lumber Company, the Railway Company decided to acquire for its right of way the property of the Lumber Company embraced in the "Emerson Proposition." On June 9, 1909, Mr. H. F. Baldwin and Mr. J. B. Bridges, chief engineer and attorney, respectively, for the Railway Company, met with Mr. C. H. Jones and Mr. George H. Emerson, president and vice president, respectively, of the Lumber Company, at the offices of the Lumber Company, and thereupon the following agreement in the form of a letter and acceptance was executed by each of the parties:

"June 9, 1909.

"Northwestern Lumber Company, Hoquiam, Wash.-Gentlemen: 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 25, 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.

"The Grays Harbor & Puget Sound Ry. Co., "By H. F. Baldwin.

"We accept the foregoing proposition.

"The Northwestern Lumber Company, "By C. H. Jones, Prest."

In the latter part of June, 1909, Mr. J. R. Holman, who had succeeded Mr. Baldwin as chief engineer of the Railway Company, and Mr. Bridges, attorney for the Railway Company, met with Mr. Emerson, on behalf of the Lumber Company, for the purpose of drafting the formal agreement called for by the foregoing letter and acceptance. The agreement was dictated by Mr. Bridges. It provided for a sale by the Lumber Company to the Railway Company of the various parcels of land embraced in the "Emerson Proposition" for the consideration of $134,000. The agreement also contained the following paragraphs:

"(5) The deeds hereby called for and the payments herein provided to be made shall be made on or before the 1st day of August, 1909, provided the title to the lands herein described be found by the second party to be sufficient and be passed by its attorneys.

"(6) The said first party [the Lumber Company] shall be entitled to the possession of the lands herein agreed to be conveyed, for the period of six months immediately following the date of the execution and delivery of the deeds and instruments herein provided for; such possession to be free of rent, and the said party is given the right to remove any and all buildings or improvements on any of the said lands, provided such removal be done on or before six months of the date of said deed and other instruments, provided said party of the second part [the Railway Company] may enter upon any of the premises herein proposed to be conveyed, for the purpose of beginning and carrying on the construction of its railroad and bridges, in so far as it can be done without injury to the said party of the first part, and in the enjoyment of right granted them in the first part of this paragraph.

"(7) It is agreed by the said first party and their officers that they will co-operate with the said second party in procuring such franchises of the city of Hoquiam as it may desire, and in securing such additional rights of way in the city of Hoquiam as the second party may desire."

A copy of the agreement was sent to the Lumber Company for execution. While the agreement was in the hands of the Lumber Company it was changed by that company in two substantial respects:

(1) By the terms of the draft the purchase price of the property was to be paid on or before the 1st day of August, 1909. As changed by the Lumber Company it was provided that $20,000 of the purchase price should be paid upon the execution of the agreement.

(2) The following paragraph, numbered 8, was added: "It is stipulated by the first party that the construction of the approach to the proposed bridge on the extension of Simpson avenue shall be so arranged as to interfere with the handling of logs in their millpond 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 United States government, about 30 feet 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 agreement, modified and changed in the respects mentioned, was then executed by the Lumber Company, and on June 30, 1909, was forwarded by that company to Mr. Bridges, attorney for the Railway Company, together with a letter wherein the attention of the latter was called to the various changes made in the agreement before execution by the Lumber Company. All of the changes in and modifications of the agreement made by the Lumber Company were acquiesced in and agreed to by the Railway Company, with the exception of the last clause of the added paragraph 8, as follows: "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."

It appeared from the testimony at the trial of the case that the Railway Company had applied to the city of Hoquiam for a franchise or permit to build a bridge for its road across the Hoquiam river at Simpson avenue. During the pendency of the application, the city had appointed a committee to confer with the Railway Company respecting the erection of a bridge which could be used jointly by the city and the Railway Company. These negotiations were pending at the time of the execution of the letter agreement of June 9, 1909, between the Railway Company and the Lumber Company. The reason assigned by the president of the Lumber Company for inserting the clause respecting the joint user bridge was that his company wanted to go on record as being in favor of the plan which the city of Hoquiam was insisting upon; that the Lumber Company did not want the city to think that it was opposed to the erection of a bridge which should be used by the city and the Railway Company jointly.

On July 23, 1909, the attorney for the Railway Company notified the Lumber Company of the refusal of his company to execute the agreement unless the clause respecting a joint user bridge over the Hoquiam river was eliminated. The reason for desiring the clause removed from the agreement was set forth in the following letter written to the Lumber Company: "Mr. Farrell, the general manager of the railroad company, desires that this clause be stricken from the contract before it is signed by the railroad company. His position is that we are negotiating with the city of Hoquiam concerning the bridge rights, and he thinks that the matter of a common user bridge should be one to be left to adjustment altogether by the railroad company and the city. I so expressed myself to your Mr. Jones, but at the same time he seemed to be of the opinion that the clause should remain in the contract. We shall continue our negotiations with the city concerning this matter, and find out what disposition it has concerning the bridge, and will later advise you about it; meanwhile we would like for you to consent to the clause quoted to be stricken out, and, if you will not so consent, then we ask that the matter may stand as it is until we can come to some definite arrangements with the city concerning the matter."

Subsequently several conferences were held between the officials of the two companies with respect to the objectionable clause, but they were unable to reach any agreement concerning it. On September 15, 1909, the Lumber Company forwarded to the attorney for the Railway Company the following letter: "Please deliver to the bearer the deed and any other papers that may be in your hands belonging to the Northwestern Lumber Company and connected with the right of way transaction, pending between the Northwestern Lumber Company and the G. H. & P. S. Ry."

The papers were sent to the Lumber Company, together 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 you it is not the intention of the Railway Company to waive any rights which it had with reference to the agree