The opinion of the court was delivered by: PINE
Defendant has moved the court to vacate the verdict of the jury and judgment entered thereon in favor of plaintiff and to enter judgment for defendant in accordance with the motion of defendant for a directed verdict made by defendant at the close of all the evidence or in the alternative to grant a new trial.
Motion for Judgment for Defendant.
This action grows out of an agreement entered into on May 31, 1935, between plaintiff and defendant by the terms of which plaintiff agreed to sell and defendant agreed to buy for a stipulated consideration certain lots and parts of lots in Sq. 1067. The property in question is located a short distance from the Anacostia River between the Anacostia Bridge and the Pennsylvania Avenue Bridge. It is bounded by 14th Street on the west, L Street on the north and 15th Street on the east and the P.B. & W.R.R. on the south in Southeast Washington.
The agreement between the parties further provided that it was to be "null and void in the event that the property is not made available for industrial use or in the event the party of the second part (plaintiff) is unable to obtain wharfage facilities and the privilege of running a pipe line from said wharf to the property aforesaid."
It was the intention of the parties that the wharfage facilities, referred to in the agreement, were those incident to the mooring of vessels transporting petroleum or its products at a wharf to be erected, and the discharge of their cargo at the wharf into a pipe line for delivery to storage tanks to be erected on the land. The plaintiff contended that it was ready and able to perform its part of the agreement, but that defendant refused to perform. Defendant contended on the other hand that he was ready and able to perform, but that plaintiff was not.
In considering defendant's motion for a directed verdict, the court must construe the evidence most favorably to the plaintiff and give the plaintiff the full effect of every legitimate inference therefrom. If then, upon the evidence, so considered, reasonable men might differ, the motion should not be granted. On the other hand, if no reasonable man could reach a verdict in favor of plaintiff, the motion should be granted.
Defendant, in support of the motion for judgment, contends that there was not sufficient evidence to justify submission to the jury the question of plaintiff's ability to obtain wharfage facilities and the privilege of running pipe lines. It is not contended by defendant that the zoning requirement of the agreement was not complied with, inasmuch as the zoning of Sq. 1067 was changed to an industrial area shortly after the date of the agreement. (Plaintiff's Exhibit No. 2)
Following is a resume of the evidence on the question of plaintiff's ability to obtain wharfage facilities and the privilege of running a pipe line as stipulated in the agreement.
Congress under date of August 27, 1935, 49 Stat. 895, passed an act authorizing the Commissioners of the District of Columbia to grant permission to the plaintiff and its assigns to lay down not more than five pipe lines from a point within Sq. 1067 through 15th Street, S.E., to the pierhead line of the Anacostia River. (Plaintiff's Exhibit No. 3)
Before this act was passed, and under date of July 6, 1935, the Commissioners of the District of Columbia, in reporting to the Chairman of the House District Committee, determined that they had "no objection to a reasonable use of 15th Street, S.E., for the purpose of providing pipe lines from the Potomac River to Sq. 1067" and advised the Chairman "that legislation authorizing erection of a wharf at the end of 15th Street is unnecessary as this matter can be handled under existing law by the issuance of revocable permits". (Plaintiff's Exhibit No. 31)
Under date of July 15, 1935, the National Capital Park and Planning Commission
determined that it "had no objection to the granting of a lease to extend pipe lines from Sq. 1067 to the Anacostia River and the erection of a wharf and other river facilities in connection therewith provided these facilities conform to the plans of the Commissioners for the development of this area." (Plaintiff's Exhibits Nos. 15 and 30)
The Coordinating Committee, National Capital Park and Planning Commission, on which officials of the Government of the District of Columbia and the United States Engineers Office are represented, under date of June 25, 1935, at its 247th meeting, determined that the utilization of the foot of 15th Street at the Anacostia River for wharf facilities was agreeable to the Committee. (Plaintiff's Exhibit No. 32)
The evidence further showed a willingness on the part of the United States Engineers Office to issue a permit for a wharf in the Anacostia River adjacent to the foot of 15th Street (testimony of witness Schmitt). It is true that part of 15th Street adjacent to the Anacostia River, which is an unimproved street, previously had been leased to the Washington Yacht Club by the Chief of Engineers, U.S. Army, with the consent of the District of Columbia, the lease being revocable in thirty days, but it might reasonably be inferred from the evidence that this revocable lease presented no obstacle in view of the Congressional action, supra, and the attitude of the government agencies above expressed to ...