of the District of Columbia and the Chief of Engineers to make regulations in regard to building wharves and the rental thereof, the rents collected to be covered into the Treasury, one-half to be placed to the credit of the United States and one-half to the credit of the District of Columbia.
Section 10 of the Act approved March 3, 1899, 30 Stat. 1151, 33 U.S.C.A. § 403, prohibits the building of any wharf in any navigable river except on plans recommended by the Chief of Engineers and authorized by the Secretary of War. The information circular issued by the War Department in respect of applications for permits for construction work in navigable waters, including wharves, provides that applications for permits may be addressed to the Secretary of War, but will receive equal attention if addressed to the District Engineer in charge of the District in which the work lies, and that such officers have general authority to issue permits for certain classes of work. It further suggests that the desired permit will be more quickly secured by sending the application directly to the District Engineer than by any other way. (Plaintiff's Exhibit No. 13)
From the foregoing I am of the opinion that legal authority was not lacking for the decisions or the commitments of the government agencies herein above set forth.
Defendant in support of the motion for judgment also contends that there was not sufficient evidence to justify submission to the jury the question of plaintiff's ability to deliver good title to the land plaintiff agreed to convey.
Plaintiff was the owner in fee simple of lots 10 and 12 to 18 in Sq. 1067 subject to two deeds of trust and certain unpaid taxes. There was testimony that arrangements had been made to release the second trust and that money was available to pay off the first trust and taxes. Both trust and taxes could have been paid if money was available for such purposes.
The balance of the property in question involved in the agreement are parts of lots 19 and 20 in Sq. 1067 lying north of the railroad tracks, title to which was vested in the P.B. & W. Railroad Company subject to two general mortgages and a possibility of reverter as to a part of one lot.
Plaintiff entered into an agreement with the railroad company in the form of a letter offering to purchase such parts of lots 19 and 20 in Sq. 1067 at a price of $6,300 net to the railroad company and an acceptance of the offer by the railroad company. The possibility of reverter was cleared up by a quit-claim deed obtained by plaintiff. Release of the general mortgages was agreed to.
The defendant contends however, that the offer and acceptance were subject to certain conditions, namely that the railroad company was not to be liable to provide lateral support for any part of the surface of the land conveyed; that the grantee was obligated to use diligence to prevent the drainage of water from the land conveyed onto the land of the railroad company, and that the railroad was not liable to construct any fence between the land granted and the land of the railroad adjoining on the south.
The offer to purchase referred to the land as the parts of lots 19 and 20 described in a tentative deed drawn up by the railroad company a long time previously in connection with a cancelled contract between the Decatur Corporation and the railroad company for the acquisition of the same property and in that deed there were conditions of the character mentioned. Also, the deed actually delivered to the plaintiff in February, 1936 at the time the property was sold to a third party, after the alleged default by the defendant, contained such conditions. However, I cannot subscribe to the view that the offer to purchase which, for a short description, simply stated that "the parts of lots 19 and 20 to be bought include the land described in the last tentative deed drawn up by the railroad company," and its acceptance by the railroad, constituted a contract containing such conditions. Instead, I am of the opinion that the reference in the offer to the last tentative deed is merely for the purpose of identification of the land and to avoid the necessity for a detailed metes and bounds description partly covering two legal size pages of single spaced typewriting in a letter making an offer to purchase. In other words, I believe the reference to the last tentative deed was a convenient method of referring to the property in question.
Furthermore, the fact that the deed, as finally delivered, contained such conditions is not persuasive, in that the third party purchasing from plaintiff may not have objected to them.
There is no evidence that defendant refused to settle because of those conditions. Instead there was testimony that he took little interest in the matter except to obtain more time in an attempt to consummate a deal of his own with an oil company in connection with the property, consummation of which, according to such testimony, was determinative of whether he would perform his agreement with the plaintiff.
In these circumstances, I cannot agree with the defendant's contention that there was not sufficient evidence to justify submission to the jury the question of plaintiff's ability to deliver good title to the land plaintiff agreed to convey.
Neither is there merit to the contention of defendant that failure to make a tender of a deed is fatal to plaintiff's case as a matter of law. Such an act is unnecessary where the vendee announces his unwillingness to perform on a ground untenable in law and the vendor has certain means of procuring that which he contracted to deliver.
Plaintiff offered evidence to this effect, which was disputed by defendant, and the question therefore became one for the jury's determination under appropriate instructions. Defendant makes no contention that the instructions were erroneous in this regard.
The motion for judgment in accordance with the motion of defendant for a directed verdict at the close of all the evidence is accordingly denied.
Motion for New Trial
In support of this motion defendant asserts as error the denial by the court of his Prayer No. 5 to the effect that the jury are instructed as a matter of law that neither the Secretary of War nor any governmental agency under the Secretary of War nor the District of Columbia nor the Commissioners thereof were empowered to lease 15th Street, S.E., at the water front to the plaintiff nor empowered to lease the same for private purposes inasmuch as 15th Street, S.E. at the water front is a public street. In view of what has been said under the heading "Motion for Judgment", I am of the opinion that no error was committed in refusing this prayer.
I find no error in permitting the witness Lambert to testify concerning the commitments made by the witness Schmitt. Mr. Lambert was attorney for the plaintiff in this transaction. Plaintiff was under obligation to obtain wharfage facilities. The Washington District of the United States Engineers Office was one of the government agencies from which wharfage facilities were to be obtained. Mr. Schmitt was the principal engineer in the Washington District of the United States Engineers Office. Whether plaintiff was able to obtain wharfage facilities was one of the issues of the case. What the plaintiff, acting through Mr. Lambert, obtained from the United States Engineers Office was pertinent. Mr. Lambert's testimony of what he, acting for the plaintiff, in the way of wharfage facilities was admissible.
I have considered the other points set forth in the motion for a new trial and do not find that they justify the granting of this motion.
The motion for a new trial is accordingly denied.