The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-12-08

70 point nesr the outlet OF Lake Union. in
TIE Denny Il Hoyt addition to Seattle, then thIx
obligation shall De void; otherwise 20 De and re-
main IA full force and virtue" The
defendant admits the execution Of
the bond and admits the breach of
H. The only controversy is a. - the amount of
damages recoverable. Plaintiff alleges in his
complaint that the property described in the
bond was IN fact conveyed 10 the trustee named
BY valid deeds delivered 20 him. for and ia cons
sideration OF the giving OF said bond, and Tor no
mlited TO prove these averrnents. The two deeie
gwen are IN evidence, having been produced By
the grantee who testified that he received them
from the plaintiff. They appear % have been
legally executed and sCknOwled by the plaintiff
ana his vile. and puTpoEt 10 convey the property
ABSOLUTELY and Internationally. The plaintiff Q
evidence on this point was offered in aid of the
BOND, ana Is c0nhrmatory rather than con.
Trajectory OF the recital. aud intended
70 snow grstuitous transfer of the property ia
duced by the giving OF the bond and the value
thereof, as = basis for fixing she measure of ths
damages. The penalty OF the bond ia $4,000 and
mat sum Is the value OF the property conveyed
70 VT Furth by the plaintiff, and he contends
inst any less sum viii not De compensation to
nm TOR his actua. loss. The defendant offered
10 prove that the plaintiff has not sustained O
loss oy transfer OF property; that instead OF q
complete transfer OF the title the deeds sere de-
hvered IN escrow. with the verbal understand.
Ing between the parties that II the defendant
should be unable TO secure a sufficient bonus or
subsidy in lands or money 20 Justify the cou.
struetion and operation OF the proposed lima
OF railway referred To in said bond, said
deeds should be returned 70 the plaintiff BY Mr.
Furth, and thersupon said bond should be null
and void. that 3 sufficient bonus or subsidy
was not secured and Mr.. Furth has offered TO,
aud is now willing, 10 return said deeds and 70.
store said property unineumberec to the plain.
TN. The allegations OF these facts in the do.
PENDANTS answer were, on motion, stricken out
ana the evidence offered on the trial to the saua
effect was excluded. The contention on tbs
part OF the defendant is that for the purpose of
meeting the plaintiffs claim as 10 the measure
OF the damages, and the oral evidence which ne
was permitted TO introduce as 10 the facts of ths
transaction the evidence offered should have
been admitted.
The position assumed that the deeds could
under any circumstances he shown by evidences
To have been delivered TO the grantee in escrow.
IS certainly upfenabIe. In the CONVEYANCE OF
real property the last act essential to comp lete
transfer 10 delivery OF the deed to the grantee.
Alter on Intentional voluntary delivery OF the
ueed, the grantor "a completely Invested of his
title and mis- ownership cannot be restored with,
out the execution aud delivery OF a proper deed
OF CONVEYANCE in the same manner as II he had
been heretofore an entire stranger 10 the title.
A delivery in escrow must be to stranger
or dlsnterested party, with authority
10 hold the Instrument until the performance of
some particular condition necessary TO enttla
the grantee % some absolute delivery. Is Am,
ana Eng. Enc. Law, SIS Moss vs.. Riddle,
Cranch S5l- Fairbanks VS.. Metcalfe, Mass.
go. Cocks VS.. Barker, 40 New York no. Beers
vs. Beers, 2 Mich A Johnes vs. shaw. 81 No.
co.. hcCann vs. Anterior, loo Ill. 81
Unless the parties intended that the railway
should be built on the property given by plain.
TIL as bonus should be paid for there Is no rea.
son apparent for the making of this bond. And
whatever may be the real fact il ia not permIs-
sibe in court OF law to say that the actual
agreement In any case was TO the effect that a
failure 10 perform the conditions OF q written
contract should give the party in default a right
TO insist upon RECESSION OF IL and TO immunity
from the consequences stipulated In the written
instrument
Admission Of the oral evidence introduced By
the plaintiff, IL an error OF the court was not
prejudlcial to the defendant, since IL is NOT
matter different OF additional to what appears
upon the face Of the bond itself nor al variance
with IL in any particular In my opinion this
bur no harm done by its introduction aud
il could not have the effect to open the way for
the introduction OF rebUtting testimony going
TO the extent of releasing the defendant from
the binding force of its obligation.
IL is an incontestahle fact that the plaintiff
conveyed $4,000 worth of property to a trustee
for the and benefit OF the defendant
10 aid In the construction OF a certain
railway OF which the defendant was
been constructed. What amount of beneis
plaintiff might have derived from the compile.
zion and operation of the projected railway IL O
matter OF mere conjecture. IL seems fair, how.
ever, to assume that the amount OF bis loss by
the failure TO carry out the project IL at least
equal to the amount which he was willing to
contribute as a subsidy In aid OF II, and rule
making the value of property which the defend-
ant has received by the contract the measure OF
harsh one. Findings may be prepared in 40.
cordanee with this opinion, aud Judgment will
be awarded in favor OF the plaintiff fer $4,000
and costs