Milton E. Dam and Everett S. Dam, Co-Partners Doing Business Under the Firm Name and Style of Dam Brothers v. General Electric Company, a Corporation

265 F.2d 612 Milton E. DAM and Everett S. Dam, Co-partners doing business under the Firm Name and Style of Dam Brothers, Appellants, v. GENERAL ELECTRIC COMPANY, a corporation, Appellee. No. 15395. United States Court of Appeals Ninth Circuit. November 12, 1958. Phipps & Phipps, Harve H. Phipps, Sr., Harve H. Phipps, Jr., Spokane, Wash., for appellants. Cooley, Crowley, Gaither, Godward, Castro & Huddleson, John H. Wallace, Edwin E. Huddleson, Jr., William W. Godward, San Francisco, Cal., Hamblen, Gilbert & Brooke, Philip S. Brooke, Spokane, Wash., for appellee. Before STEPHENS, Chief Judge, and FEE and BARNES, Circuit Judges. STEPHENS, Chief Judge. 1 Milton and Everett Dam appeal from a motion for summary judgment granted in favor of General Electric Company by Judge Sam M. Driver in the United States District Court for the Eastern District of Washington. 2 The Dam Brothers brought suit against General Electric alleging that General Electric had breached an oral contract made with the Dam Brothers in 1913, whereby it was agreed that these two parties would exploit the Priest Rapids area on the Columbia River in the state of Washington. The plaintiffs, Dam Brothers,…

Milton and Everett Dam appeal from a motion for summary judgment granted in favor of General Electric Company by Judge Sam M. Driver in the United States District Court for the Eastern District of Washington.

The Dam Brothers brought suit against General Electric alleging that General Electric had breached an oral contract made with the Dam Brothers in 1913, whereby it was agreed that these two parties would exploit the Priest Rapids area on the Columbia River in the state of Washington. The plaintiffs, Dam Brothers, were interested in the Priest Rapids area for an irrigation project, while General Electric was interested in the area for the development of hydro-electric power. There were obstacles to both plans, so they decided to join forces and develop the area jointly. The terms of the enterprise were allegedly worked out in New York during 1913 with many former executives of General Electric all of whom had died by 1944. The result of these negotiations was that there was an agreement for joint development of Priest Rapids. An attempt was to be made to secure additional land and sites in the area, and to secure passage of favorable water power legislation by Congress which…

(concurring in result).

After long study, I concur in the result reached by the opinion of Chief Judge Stephens, solely because plaintiffs cannot recover in any event. It is extremely difficult to find that either count of the complaint could have stated an actionable claim. It is impossible to find basis for a cause of action on the theory of resulting trust. The facts which were of necessity alleged negative any possible recovery. The motions to dismiss should have been sustained.

But the trial court, instead of granting a motion to dismiss, allowed a motion for summary judgment based upon supposed laches and estoppel set up in the answers. But such defenses require the trial of the state of mind of both plaintiffs and defendants. Genuine issues of material fact were thus tried upon affidavits over objection. This is a perversion of the summary judgment procedure.

This case offered a splendid opportunity for disposal on the merits by use of discovery and pretrial conferences. Instead, the weary round of motions and amended pleadings was followed for more than four years. The culmination was a summary judgment upon an untenable ground. The suspicion might arise that the final…