Transcript of Record — Erickson v. United States
Supreme Court brief1924
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SUPREME COURT oP Ta UNITED SATE.
“ooronae Tans, iN 1923
no M126
C. J. ERICKSON AND UNITED STATES FIDELITY AND
- GUARANTY COMPANY, -Laaaaiaghe IN PRROR,
U8.
THE UNITED STATES oF AMERICA AND UNITED STATES.
‘SPRUCE, PRODUCTION CORPORATION.
y
IN ERROR TO THE DISTRICT COURT OF THE UNITED. STATES FOR
THE WESTERN er OF WASHINGTON.
(29,156)
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1922.
No. 606. F
C. J. ERICKSON AND UNITED STATES FIDELITY AND
GUARANTY COMPANY, PLAINTIFFS IN ERROR,
vs.
THE UNITED STATES OF AMERICA AND UNITED STATES
SPRUCE PRODUCTION CORPORATION.
IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR
THE WESTERN DISTRICT OF WASHINGTON.
INDEX.
Original. Print.
Names and addresses of counsel............ccecccesccccescecs 1 1
Record from the U. S. district court for the western district of
TP S6Accakenundckisdensennknenscgediakevebehéewoseees 3 1
MPN 45 00xK5 RADA KAR TAK AAR ORRAUAEKRRE AREA RA KADAL 2 1
Exhibit A—Contract between United States Spruce Pro-
duction Corporation and C. J. Erickson.. 23 13
B—Supplemental contract..........cccceeeces 33 20
C—Bond of C. J. Erickson..............00.0e 46 28
D—Account of C. J. Erickson...............0. 47 29
een GP WRIA on winecnceccnascunssnnceensateteccneesss 52 32
SP UID GI ia iv sn vas de kocsis cdbvcccccecascc 54 34
ED nasacusnancncnecceekdGenbeneacneecccduacdeacau 55 35
Order overruling Gemurrer........cccccccccccccccccccces 56 35
Jupp & DerweiLer (INc.), PRINTERS, WASHINGTON, D. C., NovEMBER 16, 1922.
ca
INDEX.
Original. Print,
AMDSWEF ...--e005- caeeewes Cib KE SES SN SS UREN SiOkO EES seeces 57 36
Reply ccccccescscevcvces CeaeAuenen e ahs eee EAStCaSaee Cees 66 41
Verdict ...cccsces We chan ks (UC CSERS RAR AA ESE S ROOM ES isa 69 43
Judgment .......- SeNAN MORONS SRRa, eNOS e4c508 neha whee eae es 7 44
Petition for writ of error........- 5 K455 245534555000 SUD 75 45
Assignment of errors... 2... .ee eee cece neers Teer Tee ca 75 46
Order allowing writ of error......- euebas iavekeus saebaue 77 47
Bond on writ Of @rror.... 2.0. cece ee ee eee ee eee ween eens 7s 7
Certificate of questions, Cushman, J...-..+-ee seer eee eens 8o 49
Priecipe for transcript... 2.6... e cece eee eee eee eee ees 91 By
Clerk's certificate........ Paweee ree rae ARERR RR SRR 93 56
WAL OF GEPOR. ccc occcc cs ccc sce cetsseecsecesccesscctcceese 95 AYE
Citation and service... ........ cece eee c eee cccerceesscese 96 oS
Names and Addresses of Counsel,
Shank, Belt & Puirbrook, Attorneys for Plaintiff in Error C. J.
Erickson, 1002 Alaska Building, Seattle, Washington.
McClure & McClure, Attorneys for Plaintiff in Error, United States
Fidelity & Guaranty Company, 1512 Hoge Building, Seattle, Wash-
ington,
Thomas P. Revelle, Exq., United States Attorney, Attorney for De-
fendant in Error United States of America, 310° Federal Building,
Seattle, Washington.
John A. Frater, Esq., Assistant United States Attorney, Attorney
for Defendant in Error United States of America, 310 Federal Build-
ing, Seattle, Washington,
Carey & Kerr and Omar C. Spencer, Attorneys for Defendant in
Error United States Spruce Production Corporation, 1410 Yeon
Building, Portland, Oregon,
2 In the United States District Court for the Western District
of Washington, Northern Division.
No. 6331.
UNITED STaves OF AMERICA and Uxirep Srares Spruce Propuc-
TION CORPORATION, a Corporation, Plaintiffs,
Vs.
(J, Ertekson and Uxrrep Staves Prpetiry anp GuARANTY Com-
PANY, a Corporation, Defendants,
Complaint,
Plaintiffs for eause of suit allege:
a
This is a suit arising under the Constitution and laws of the United
States. ‘The United States Spruce Production Corporation is « cor-
poration organized under and pursuant to certain acts of Congres=
under the laws of the state of Washington as a corporation of that
state. The defendant, C.J. Erickson, is a citizen of the state of
Washington, and a resident of the Western District of Washington,
Northern Division, The defendant, United States Fidelity and
Guaranty Company, is a corporation organized under the laws of the
tate of Maryland, and a citizen of that state. The matter in dispute
herein exceeds the sum of $3,000.00 in amount, exclusive of interest
and costs. ‘The United States of America joins as plaintiff to pro-
leet its interests,
1—606
C. J. ERICKSON ET AL. VS. U, S. OF A. ET AL. 1
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Il.
During the times herein mentioned the plaintiff, United States
Spruce Production Corporstion, was and now is a corporation created
under the laws of the state of Washington by the Director of Air.
craft Production under and pursuant to the Act of Congres
3 of July 9, 1918, amending the Act of April 11, 1918 (US,
Compiled Statutes 1919, Compact Edition, Appendix page
1771), for the purposes hereinafter more fully set forth, and was duly
licensed and authorized to transact business in the state of Washing
ton and had in all respects complied with the laws of that state en
titling it to transact business therein.
II.
Under and pursuant to certain Acts of Congress, particularly the
Act of June 3, 1916 (Chap. 134, 39 Statutes 166 at page 213, Sec.
120), the Act of Congress of March 4, 1917 (Chap. 180, 39 Statute
1192), and the Act of Congress of July 24, 1917 (Chap. 40, 39 Stat
page 243, Sec. 9), and other enactments, the President of the Unitel
States authorized the purchase and acquisition of spruce and fir lun
ber, among other commodities, as war material, and authorized the
construction of aircraft for use in the navy and in the army of the
United States within the amount of appropriations and in compl:
ance with the terms of said Acts. Through the War Department
and under the direction of the Chief Signal officers of the United
States Army plans were made for the production of such war me
terial, including the building of the railroad hereinafter mentioned.
IV.
By the above mentioned Act approved July 24, 1917 authority was
given to the President acting through the War Department during
the existing emergency occasioned by the state of war between the
United States and the Central European powers for the pureha.
manufacture, maintenance, repair and operation of airships ani
other aerial machines, including the acquisition and development
of plants, factories, and establishments for the manufactur
4 of airplanes, aircraft, machines and appurtenances, the pur
chase of raw and semi-finished materials therefor, and of all
other things necessary for creating and extending the production
airplanes, aircraft, engines, and all other appurtenances, and the sw
of $640,000,000.00 was appropriated for the purpose of carrying
the said operations and to put said Act into effect. Under the pt
visions of the Act of Congress approved March 4, 1917 (Sections 31h
1/16a, 3115 1/16b, 3115 1/16e and 3115 116d, UL 5. Compile!
Stat., Compact Ed.}, the President was authorized and empowers
within the limit of funds appropriated therefor, to requisition for the
use of the government during the war emergency war materials ati
plants for the production of war materials, which included ams
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C. J. ERICKSON ET AL. VS. U. S. OF A, ET AL. oe
amament, ammunition, steres, supplies and equipment for ships and
airplanes and everything required for or in connection with the pro-
duction thereof, and was authorized to exercise the power and author-
ity so vested in him and to expend the money appropriated by means
of and through such agency or agencies as he might determine upon
from time to time. By the Act of Congress approved April 11, 1918,
as amended by the Act of Congress approved July 9, 1918, the See-
retary of War was authorized to acquire by condemnation lands and
interests in lands for military purposes, including standing or fallen
timber, sawmills, camps, machinery, logging roads, rights of way,
equipment, materials and supplies, and any works, property or ap-
pliances suitable for the effectual production of such lumber and
timber production. The said last mentioned act further provided
that when the owners of such land, interest and rights ap-
5 purtenant thereto should fix a price for the same which in the
opinion of the Secretary of War would be reasonable he might
purchase or enter into a contract for the use of the same at such price
without further delay.
V.
Accordingly, the government of the United States in the then
existing war emergency, under the direction of the President and
Secretary of War, being in need of spruce, fir, and other lumber for
the manufacture and production of such war material. especially
aireraft, and in order to facilitate the production of such lumber
products, undertook the construction of certain logging railroads in
the states of Washington and Oregon for the transportation of such
lumber products as would be required in the manufacture of aircraft
and for other purposes. These operations were originally begun by
the Signal Corps, Aviation Section of the United States Army, and
later by the Bureau of Aireraft Production, Spruce Production Di-
vision of the United States War Department, these being the agencies
through which the powers vested in the President of the United States
and the Secretary of War under the foregoing Acts of Congress were
exercised. Among other logging railroads so constructed was the
ging railroad hereinafter described, known as Spruce Production
Railroad No. 1, in Clallam County, in the state of Washington.
VI.
For the purposes aforesaid and under said Acts of Congress, the
United States, acting through the Signal Corps of the United States
Amy, entered into a contract with contractors for the construction
if the railroad hereinafter described, and for the acquisition of rights
of way therefor. Nearly all of the right of way and lands
b acquired for that railroad were acquired through such con-
tractors who also performed the work, or nearly all of the
work, of constructing said logging railroad. Afterwards, however,
ind prior to the signing of the Armistice in the war already men-
toned, all of these properties were transferred to the United States
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t C, J. ERICKSON ET AL, VS. U.S. OF A. ET AL.
Spruce Production Corporation, and additional rights of way were
acquired by that corporation, and additional work upon the said
railway line was done by that corporation. The said railroad was
constructed upon a route located and designated by the United States
government and the said railway line, with its rights of way and
appurtenances, as built and constructed, was built for and acquired
by and became the property of the United States, although the title
thereto was transferred to the plaintiff corporation and still is carried
in the name of the United States Spruce Production Corporation for
convenience.
VIL.
At the time of the Armistice the work of getting out the war ma-
terial above mentioned was mostly suspended by the government, but
some operations necessarily continued for a period of months after
that date. The United States Spruce Production Railroad No. 1
was then nearly completed and some work was thereafter done by
the United States Spruce Production Corporation, plaintiff, under
the direction of the War Department to put it in operating condition.
This railroad was approximately thirty-six miles in length, begin-
ning at a point of connection with Seattle, Port Angeles and Wester
Branch of the Chicago, Milwaukee and St. Paul Railway at Disque
Junction in the county of Clallam, state of Washington, and exten¢-
ing thence in a general westerly direction to a point at or
7 near Lake Pleasant in said county. For several miles of the
route of the said railway line it was built upon the public
lands of the United States in the Olympic Forest Reserve, under the
jurisdiction of the Departinent of Agriculture, Forestry Service, with
the approval of the-Secretary of Agriculture. Under the terms and
conditions of the permit authorizing the construction thereof upon
such last mentioned lands it was necessary to comply with certain
requirements as to clearing the right of way of the railroad of logs,
brush and debris causing fire hazard for the necessary protection of
the forests in the said reserve and the timber privately owned in the
vicinity of the said railroad.
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VIII.
By the provisions of the Act of Congress approved July 9, 1918
the Director of Aircraft Production of the United States government
was authorized, whenever in his judgment it would facilitate th
production of aircraft, aircraft equipment or material therefor, fer
the United States and the governments allied with it in the prosecu:
tion of the war, to form under the laws of the District of Columbia.
or under the laws of any state, one or more corporations for the
purchase, production, manufacture and sale of aireraft, aireraf!
equipment, or materials therefor, and to build and operate railroad:
in connection therewith; said Director being further authorized t
acquire on behalf of the United States the capital stock and securitie
of any corporation so formed by him. The provisions of that Ad
further authorized the Secretary of War, acting through the Directo
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C. J. ERICKSON ET AL, Vs. U. §. OF A. ET AL. v
of Aircraft Production, to transfer by appropriate instruments to
any such corporation as might be formed thereunder any interest of
* the United States in any existing contracts for aireraft. air-
8 craft equipment, or materials therefor, and the title in land,
railroads, or equipment used in or in connection with the
production of aircraft, aircraft equipment or materials therefor, on
such terms as the Secretary of War. acting through the Director of
Aircraft Production, should deem fit. Pursuant to the authority of
that Act of Congress the Director of Aircraft Production caused to be
formed under the laws of the state of Washington the plaintiff cor-
poration, known as United States Spruce Production Corporation.
IX.
The incorporators of the said corporation were officers of the United
State Army and in so incorporating they acted for and in behalf
of the United States of America. All of the shares of the corpora-
tion, except qualifying shares, were subscribed by the Director of
Aireraft Production. All of the capital used by the corporation in
its operations was furnished by the United States Government. The
qualifying shares were taken in the name of the trustees of the corpo-
rtion, who from time to time have held one share cach to qualify
them to serve in that capacity, but none of the said trustees has any
interest in the corporation, and each of the trustees holds the shares
of stock standing in his name solely as representative of and for
the use and benefit of the United States. Each of the trustees has
in writing assigned to the Secretary of War, for the benefit of the
United States, any and all moneys, profits or dividends that might
accrue upon the stock held by him, and each has certified that the
share of stock standing in his name was issued solely for the purpose
of qualifying him as trustee of the corporation. No dividends are
jayable to or have been paid to the stockholders, and the trustees
have received no compensation except for services rendered
4 otherwise than as trustees. Some time after organization, on
the advice of the Director of Aircraft Production, the articles
of incorporation were so amended as to confine the powers thereof to
those mentioned in the foregoing Act of Congress of July 9, 1918,
Chapter 16, entitled, “An Act Making Appropriations for the Sup-
port of the Army,” ete. and upon the advice of the Director of Air-
craft, Production, the by-laws of the corporation were so amended
that the trustees were made removable by a majority of the outstand-
ing shares, so that, as the government has all but the qualifying
shares, the several trustees are removable by the government at will
At all times since the organization of the corporation the president
thereof has been an officer of the United States Army, and during
iis activities nearly all of the officers and agents were officers of the
United States Army, or enlisted men thereof. Two of the four trus-
lees are at present officers of the United States Army, specially as-
‘gned to such duty. Nearly all of the men employed in the build-
ing of the railroad were of the United States Army, and all acts of
the trustees, the officers and agents of the corporation, have at all
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6 Cc. J. ERICKSON ET AL. VS. U. S. OF A. ET AL.
times been performed under the direction of and in accordance with
the instructions of the Seeretary of War or the Chief of Air Service,
or the Director of Aircraft Production. The work undertaken by
the corporation, as herein described was planned by the Director of
Aireraft Production, who reported the same to the Secretary of War,
who gave his approval thereof, and after the organization of the
corporation as herein described there was transferred to the corpora.
tion by the said officers all contracts between the United States and
others for the production of such war material and for the construe-
tion of the railroad, and the property has ever since been held
10 under their directions pursuant to the said Acts of Congress,
and said corporation is an agency, arm, or instrumentality
of the United States, and upon liquidation of its assets, pursuant
to the terms of the said Acts of Congress, all of the proceeds thereof
will be paid into the treasury of the United States and no one will
receive any profit or dividend therefrom. The said corporation is
not engaged in commercial business, nor has it ever engaged in any
other business save as herein stated. No person, firm, or individual
has any interest, right, title or estate in or to any shares of stock
of that corporation, or in or to any property owned or held by that
corporation, and all of its functions as a corporation are carried out
in the manner described for war purposes of the United States.
x.
After the Armistice the corporation remained in the possession of
said Spruce Production Railroad No. 1, and upon the right of way
thereof were certain down or fallen fir, spruce, cedar and hemlock
logs, cut from timber originally growing upon the right of way of
the said railroad and then lying along and adjacent to the said right
of way, and the plaintiffs were desirous of selling and disposing of
said logs to the defendant Erickson and were willing to allow the
said defendant the privilege of operating the said railroad for the
purpose of picking up and hauling the said logs to the defendants
sawmill, which the defendant owned, near Port Angeles, Clallam
County, Washington. Thereupon and on or about the 24st day of
April, 1919, the plaintiff corporation in order to have the right of
way cleared in compliance with the requirements of the De
11 partment of Agriculture, Forestry Service, herein mentioned,
and in order to minimize fire hazard, entered into a contract
with said defendant, a copy of which is hereto attached and marked
Exhibit “A.” This contract is generally designated as Contract
No. S. P. €.—358 and is so referred to in this complaint for eon
venience.
Al.
In and by the said contract the said defendant was designated a
the “Contractor,” and the plaintiff corporation was therein referred
to as the “Corporation.” By the terms thereof the Contractor agreed
to purchase all down or fallen fir, spruce, cedar and hemlock logs of
“J
C. J. ERICKSON ET AL, VS. U.S. OF A. ET AL,
the minimum dimensions of nine feet in length with four inches
sawing allowance, and having a diameter of sufficient thickness to in-
sure a reasonable commercial sawing vield or value, owned by the
Corporation and lying within one thousand feet of the western end
of the aforesaid railroad and west of the second or westerly tunnel
thereof and along and adjacent to and felled on the right of way of
suid railroad, and the Corporation agreed to sell the said logs to the
Contractor in accordance with the terms and conditions set out in
the contract, reference to which is hereby made for greater partieu-
larity. By the terms of the contract, among other things, the Con-
tractor agreed to supply the necessary rolling stock equipment, in-
duding locomotives, logging trucks, ars and other equipment, and
to operate the said railroad in accordance with the terms and con-
ditions provided therein and agreed to pay certain specified prices
for the logs purchased by him, as in the ssid contract more par-
ticularly set forth, and also agreed to pay for the use of the railroad
for hauling logs thereon purchased from other parties, or supplies
other than for the said Contractor, or the United States
12 Forestry Service, $3.50 per ear. Payment was therein agreed
to be made by the Contractor within ten days of presentation
of invoice and scale showing logs delivered and the Contractor agreed
to remit to the Corporation in full payment for said logs so delivered
according to the prices and scales provided in the said contract, and
also agreed that within ten days of the end of each month during
the life of the contract he would remit to the Corporation the amount
due for the use of the railroad in hauling the logs and supplies,
other than for logs and supplies owned by the Corporation as therein
provided. For the purpose of assuring the plaintiff corporation that
such payments would be made the defendant Erickson agreed to
maintain on deposit with the plaintiff corporation at its direction
not more than $4,000.00, whieh sum when so deposited might be
applied by that corporation in making payments past due and un-
paid by the Contractor thereunder, Provision ‘vas made in the
contraet for scaling and measuring the logs and the Contractor
guaranteed and assured the Corporation that he would have hauled
ant taken delivery of all of the aforesaid logs of the Corporation
over the said railroad and have paid for the same according to the
method deseribed therein within one year from the date the Cor-
poration should turn over the railroad to the Contractor for opera-
tion thereunder.
NIT.
In and by the said contract the defendant Erickson agreed. among
other things, that he would immediately put the road bed of the
railroad in operating condition for the use of the Contractor, in the
manner described in the said contract: also that he would assume
and pay all handling, maintenance and other costs, che:ges and ex-
penses arising from the operation of the railroad, properties and
appurtenances and protect and save harmless the Corporation
13 from any liability for payment of the same, as in the said
contract more fully set forth. He also agreed to furnish to
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the Corporation a surety bond as therein described in the penal sum
of $20,000.00, conditioned upon his full and faithful performance
of all matters, things, terms and conditions prescribed therein. — Cer-
tain other details of the said contract, as far as material to this ac-
tion, will be seen from an inspection of the said Exhibit “A.”
NII.
After the execution and delivery of the said contract, on or about
the 2nd day of May, 1919, the defendant Erickson furnished a
surety bond as provided for therein and the plaintiff corporation
turned over the railroad about that time to him for operation in
accordance with the contract. The defendant Erickson thereupon
: entered upon the performance of the contract and thereafter cut
and removed a part of the logs agreed by him to be purchased
thereunder, but he failed to comply with the terms of the contract,
although the plaintiff corporation complied with the contract on its
part,
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XIV.
Shortly after the defendant Erickson began the performance of
the contract S. P, C.—358, to wit, August 14, 1919, it was agreed
between the plaintiff corporation and the said defendant that the
contract should be moditied and the said defendant should pay at
the rate of 50¢ per thousand feet, bourd measure, upon logs pur
chased by him from parties other than the said corporation, and
moved by him over the railroad, in lieu of the payment of $3.90
per ear, as in the contract provided. ‘This modification was made
to apply from the date of the contract Ss. P. C.—358, but
14 the said defendant failed to make payment for any such
freight, although he hauled said logs on the said railroad.
XV.
Before the defendant Erickson completely performed the contrat
SP. €.-858, to wit, July 50, 1920, a supplemental contract we
made by and between the plaintiff corporation and the said defen
ant Erickson, whereby the said defendant agreed to purchase fron
the said Corporation certain additional logs, timber and forest prod:
: ucts situate upon Section 39, Township 30 North, Range 15 Wes,
. Willamette Meridian, which, for the purposes of the supplement
; contract, were called and are herein deseribed as the “Prairie Logs”
The supplemental contract was marked for convenience “S. PLC
470.” and is so referred to in this complaint. .\ copy thereof
hereto attached and marked Exhibit “B.” In- the supplemental
contract the logs, which were the subject matter of the previous con
tract S. PL €.-558, were designated and are herein referred to fot
convenience as the “Right of Way Logs.”
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C. J. ERICKSON ET AL. VS. U. 8. OF A. ET AL. 9
AVI,
By the supplemental contract it was agreed, among other things,
that the original contract S, P. C.-358 should be extended to and
including the Ist day of January, 1921, with certain modifications,
but except as expressly modified by the supplemental contract, all
of the terms, conditions and provisions ‘of the original contract
should remain in full foree and effect,
XVII.
By the terms of the supplemental contract, Paragraph 3, Section
a, of the original contract was so modified that the said Erick-
son, named as the Contractor therein, agreed to pay to the
said Corporation for all Right of Way Logs in contract
& P. C.-858 agreed to be bought and sold, at the rate of $7.20 per
thousand feet, board measure, for all fir, spruce and cedar logs, and
at the rate of $5.00 per thousand feet, board measure, for all hem-
lock logs, and this change in price should become effective from
ad after the execution of the supplemental contract July 30, 1920.
XVIII.
iy the supplemental contract the defendant Erickson agreed to
purchase, and the plaintiff corporation agreed to sell each month
me million feet, board measure, of the said Prairie Logs, at the
ame prices as are mentioned in Paragraph XVIL hereof, and said
Enekson agreed to deposit with that corporation an advance pay-
ment on the Ist day of each and every month during the life of
the supplemental contract $5,000.00 to be applied as an advance
yment on one million feet of logs to be taken during the month,
ihe payment to be made whether the Prairie Logs had been removed
ww the Contractor or not. .\ method of accounting and adjustment
was fixed by the terms of the supplemental contract.
ATX.
By the provisions of the supplemental contract the defendant
Erickson agreed with the plaintiff corporation that he would not
move a greater amount of Prairie Logs than one million feet
luring any month, unless one million feet of Right of Way Logs
ould have likewise been removed, and that nothing in the said
wpplemental contract should relieve the Contractor of the require-
went to pay in advance to the plaintiff corporation, on the Ist day
of each and every month, the sum of $5,000.00 as considera-
tion for one million feet of Prairie Logs, as in the said sup-
plemental contract provided, whether such logs should have
wen removed or not. But the said defendant failed and neglected
»perform this part of the contract.
2—606
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10 C. J. ERICKSON ET AL. VS. U.S. OF A. ET AL,
: 20
In and by the supplemental contract the defendant Erickson fur.
ther agreed to clear up three miles of right of way of the said rai}
road and to place the same in proper condition and to the satisfy.
tion of the plaintiff corporation and the representatives of the Fo.
estry Service, Department of Agriculture of the United States, »
of the Fire Warden of the state of Washington, as their jurisdictio
might appear.
XXII.
By the terms of the supplemental contract it was agreed that in
lieu of provisions of the original contract, whereby by Contract
had assumed liability for deferred maintenance upon the said rail
road, the cost of carrying on such work and placing the road be!
in proper condition was fixed as between the parties at $1,500.00
and the said Erickson was relieved from the liability in that »
spect on the payment of $1,500.00 to the plaintiff corporation. He
subsequently paid this amount and was relieved from liability
therefor.
XXII.
By the provisions of the supplemental contract the plaintiff er
poration agreed to extend the operation of Paragraph 6 of the orig
inal contract in the manner following: that corporation agreed ¢
move promptly with its own motive power, when such motive pow
would be available, all empty cars and cars loaded with material
supplies and equipment for the Contractor for the purpos
7 of the supplemental contract from the junction of Spruce
Production Railroad No. 1 with Chicago, Milwaukee an
St. Paul Railroad at Jovee, Washington, to the nearest siding ex
of the Contractor's front of operations, and to return loaded cas
from such siding, or from the east front of the Contractor's oper:
tions to the said junction at Joyce, Washington. The Contract
agreed to pay to the Corporation at the rate of 206 per car mil
for each car so moved. It was also therein provided that in tl
event the Contractor should desire to move empty cars, cars «!
equipment or supplies, or cars loaded with logs from Joyee, Was:
ington, to the seat of his operations and return, with his own moti
power, arrangements for such operations by the Contractor wer
required to be made upon the special written permission of th
plaintiff corporation’s superintendent upon the ground, and in e
of such operations under the Contractor's own motive power, tl
Contractor agreed to pay the Corporation at the rate of Tloé pe
car mile for each car so moved over the said railroad. For the pur
pose of computing such payments each locomotive should be ei:
sidered as equivalent to three ears, and each steam shovel shoul
be considered as equivalent to two ears. Tt was also provided thi
all sums earned as tariffs by the Corporation, as so provided, eithtt
HAE EA EBA Nhe UPL RAY LOSES TRB ML ELENA ELAS PRY BSG 0S DUE LER
et
hit en
©. J. ERICKSON ET AL, VS. U.S. OF A, ET AL. 11
as charges for moving of Contractor's equipment and cars, or for
track charges for the Contractor's operations, should be due and
wiyable to the plaintiff corporation upon the 10th day of each
wonth for the month immediately preceding,
XXIII.
By the supplemental contract the defendant Erickson agreed to
funish to the plaintiff corporation at the time of the execution
thereof, and before the same should become effective. an ex-
is tension of the surety bond hereinbefore mentioned, provided
for in Paragraph 11 of contract 8, P. C.-358, or in’ the alter-
native, to furnish a new surety bond with a surety or indemnity
wmpany duly authorized to execute such bond and satisfactory to
the Corporation in the penal sum of $20,000.00, conditioned upon
the full and faithful performance by the Contractor of all of the
matters, terms and conditions of the said supplemental contract and
of the extension of contract S. P.C.-358 in the manner and within
the time limits of the said contracts. Accordingly, on the exeeution
of the said supplemental contract the said defendant Erickson fur-
uished a new surety bond, a copy of which is hereto attached marked
Exhibit °C,” in the penal sum of $20,000.00, wherein the said C, J.
Erickson Was principal and the defendant United States Fidelity
and Guaranty Company was surety, and the plaintiff United States
spruce Production Corporation was the obligee. The condition of
the said bond was and is as follows:
“Whereas, the above bonded Principal, C.J. Erickson, has entered
ito a supplemental contract bearing the date of July 30th, 1920,
with the United States Spruce Production Corporation, for the pur-
chasing of certain cedar, spruce and hemlock logs, at prices listed
in attached contract. together with the operation of a certain rail-
mad, marked Exhibit A, and made a part hereof, and,
“Whereas, one of the conditions of said contract is that the said
(J. Erickson shall furnish a bond in the sum of Twenty Thousand
aud No 100) ($20,000.00) Dollars, guaranteeing the faithful per-
iormance of said contract
“Now, therefore, if the above bonded Principal, C.J. Erickson,
all matters and things, shall comply with the said contract accord-
ing to the terms and conditions of same and shall make due and
}rompt settlement for such logs and operate such railroad as pro-
vided for in said contract, then this obligation shall be void, other-
vise to remain in full force and effect,”
"The bond was duly executed by the defendants C. J. Erick-
von and United States Fidelity and Guaranty Company, and
the requisite United States Document stamps were affixed and ean-
celled, and the bond was duly delivered to the plaintiff, United
“ates Spruce Production Corporation, and still remains in full
elect and undischarged. The said defendant C. J. Erickson, as
herein shown, has failed to comply with his contract therein referred
, which is the same contract herein described and which is at-
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12 C. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
tached to this complaint as Exhibit “B” thereof, and has failed
make due and prompt settlement for the logs therein mentioned
or to operate the railroad as provided in the said contract, all
which more fully appears by the allegations of this complaint.
XXIV.
After the execution of the supplemental contract the defendan
Erickson entered upon the performance thereof and he cut and re
moved both Prairie Logs and Right of Way Logs which were scale
and measured and classified in accordance with the said contracts
but he failed, neglected and refused to pay for the same as provide
in the said contracts. The total amount of Right of Way Logs pur
chased by the said defendant Erickson and received and moved }y
him pursuant to the said contracts and at the prices therein named
was $50,731.06. The total amount of Prairie Logs purchased by th
said defendant Erickson and received and moved by him pursuani
to the said contracts and at the prices named therein, was $43,792.54
Under and pursuant to the said contracts the plaintiff corporation
performed train service for the defendant Erickson at the rates in
the said contracts provided, aggregating the sum of $12,012.17. The
defendant Erickson made use of the said railroad for hauling leg
purchased from other parties, and supplies for other partie
20 than for the said Contractor or the United States Forestry
Service, as provided in the said contracts, at $3.50 per car
to an amount aggregating $4,246.45. The defendant Erickson als
failed, neglected and refused to clear three miles of the right of way
of the said railway line, et any thereof, as required by the terms
the said supplemental contract S. P. C_—470, although the location
of the said three miles of right of way so to be cleared and cleaned
of the debris and combustible matter, as provided therein, was deter
mined and designated by the Corporation as in the said supplemental
contract required, and although written demand was made upo
said defendant by the Corporation as therein provided, whereby ané
by reason whereof the plaintiffs have suffered special damage in the
sum of $5,968.65. The total amount of the said items herein
enumerated was and is, to wit, $116,750.67.
XXV.
The defendant Erickson paid $6,946.21 upon the Right of We
Logs purchased, and $17,849.56 upon the Prairie Logs purchased
and during and prior to the operations under the contracts herein
mentioned, there were other dealings between the plaintiff corpom
tion and said defendant, both debit and credit, as a result of whieh
there remained a balance due from the plaintiff corporation there
aggregating, to wit: $35,275.55, which has been applied by the plait
tiffs as a credit to the said defendant upon the amounts due unde
the said contracts herein mentioned. A detailed statement of the
items so credited and applied is hereto attached, marked Exhibi
“DP,” and made a part hereof. The aggregate amount of said pay
— SR nt RES NN ARAN a At Rd a ARM a nen Oi aus ; inci
C. J. ERICKSON ET AL. Vs. U.S. OF A, ET AL. 13
wents and credits amount to, to wit: the sum of $60,071.32, leaving
a balance due, owing and unpaid of $56,679.35. The defendant
Erickson has failed, neglected and refused to pay said balance
91 or any part thereof.
Wherefore, the plaintiffs pray judgment against the defendant
C.J. Erickson in the sum of Fifty-six thousand six hundred seventy-
nine dollars and 35/100 ($56,679.35) Dollars, and against the
defendant United States Fidelity and Guaranty Company in the
sum of Twenty thousand ($20,000.00) Dollars, of the aforesaid $56,-
679.30, and for the costs and disbursements of this action.
ROB’T C. SAUNDERS,
US. Dist. Atty;
I. C. REAGAN,
Asst. U.S. Dist. Atty. ;
CAREY & KERR,
Attorneys for Plaintiffs.
22 STATE OF OREGON,
County of Multnomah, ss:
I, Max Church, being first duly sworn say, that I am the secretary
of United States Spruce Production Corporation, one of the plain-
tiffs herein mentioned; that I have read the foregoing complaint and
know the contents thereof and the same is true as I verily believe.
MAX CHURCH.
Subseribed and sworn to before me this 10th day of September,
1921.
| Notarial Seal. | G. C. FRISBIE,
Notary Public for Oregon,
My Commission expires Aug. 4/24.
8 Exuisir “A.”
Contract No. SPC—358. 5/1/19.
File No. 318.
United States Spruce Production Corporation.
Logging Contract.
This contract agreement, made at Portland, Oregon, dated the
Ist day of April, 1919, between the United States Spruce Produc-
ion Corporation, a Washington Corporation, which corporation was
med by direction of the Director of Aireraft Production of the
hited States pursuant to the provisions of Chapter 16 of an Act of
ongress entitled “An Act Making Appropriation for the Support of
¢ Army, ete.,” approved July 9, 1918, hereinafter referred to as
PORN I AES hme ee Ble a
11 c. J. ERICKSON ET AL, VS. U, S. OF A. ET AL.
the “Corporation,” and C. J. Erickson, of Seattle, Washington, here-
inafter referred to as the “Contractor,” Witnesseth :
Whereas, the Corporation is the owner of certain down or fallen
fir, spruce, cedar and hemlock logs cut from timber growing on right
of way of Spruce Production Railroad No. 1, which logs are now
Iving along and adjacent to said right of way, and Corporation is
desirous of selling and disposing of said logs to Contractor, and
Whereas, the Corporation owns and controls Spruce Production
Railroad No. 1, hereinafter called the “Railroad,” as said railroad is
now established and constructed extending from that junction point
or station called Disque on the Seattle, Port Angeles & Western
Railroad, to a point near Lake Pleasant, all in Clallam County,
Washington, which railroad Corporation is desirous of allowing
Contractor to operate for the purpose of picking up and hauling said
jogs so purchased to Contractor's sawmill, and
Whereas, the Contractor owns and controls a sawmill near
24 Port Angeles, Clallam County, Washington, which sawmill
is served by the said Seattle, Port Angeles & Western Rail-
road and said Spruce Production Railroad No. 1, connection with
the latter being made over that portion of the said Seattle, Port
Angeles & Western Railroad between Contractor's said sawmill and
the junction or station of Disque, all in Clallam County, Wash-
ington, and
Whereas, Contractor is desirous of purchasing said down or fallen
timber or logs owned by the Corporation as aforesaid and of operat:
ing said railroad for the purpose of hauling the said logs to his mill
as aforesaid.
Now. therefore, for and in consideration of the premises and of
the mutual promises and agreements of the parties hereto, it is agreed
as follows:
1. Contractor agrees to purchase all down or fallen fir, spruce
cedar and hemlock logs, of the minimum dimensions of nine feet in
length, with four inch sawing allowance and having a diameter ¢
sufficient thickness to insure a reasonable commercial sawing viell
or value, owned by the Corporation and lying within 1,000 feet 6
the Western end of railroad and West of the second or westerly tut
nel thereof, and along and adjacent to and felled on the right of war
of said railroad, and Corporation agrees to sell said logs to Contractor
in accordance with the terms and conditions hereinafter set forth.
2 The Contractor agrees to supply the necessary rolling stock
equipment, including locomotives, logging trucks, cars and other
equipment and to operate said railroad in accordance with the terns
and conditions hereinafter provided, and the Corporation agrees t
allow Contractor the use of said railroad as the same is NOW COD
structed in accordance with the terms and conditions hereinafte
provided.
3. Contractor agrees to pay Corporation for said logs and for the
use of said railroad as follows:
eae a3
i i
he
J oa > ew td ae Sati SDT Diet ea ee ee ee, SO ee
C. J. ERICKSON ET AL, VS. U.S. OF A. ET AL. 15
A. A minimum rate or price of $4.00 per 1,000 ft. B. M.
95 for all fir, e lar and spruce logs, and $2.00 per 1,000 ft.
B. M. for all hemlock logs. It is understood the above mini-
muni prices are arrived at by assuming the following arbitrary price
and grades as a base; a selling price of fir logs rafted and ready for
delivery in Puget Sound for Grades 1. 2 and 3 at $18.00, $15.00
and $12.00 M. B. M. respectively, and for such log rafts assumed to
vield or grade 20°, of Grade 1,606; of Grade 2 and 20% of Grade
3, said assumed price and grade thus netting an average price for
fir of $15.00 M. B. M. Should the current prices for fir logs rafted
and ready for delivery in Puget Sound log market as quoted by “The
Timberman,” a monthly publication printed at Portland, Oregon,
and issued on the 15th day of each and every month, show in any
one month an increase over said whitrary or base prices for fir, then
Contractor shall pay Corporation during that month fifty (50%)
per cent of such inerease figured according to the above assumed
grade, in addition to said minimum prices, it being understood said
tir prices will govern additions to the minimiuns prices of spruce and
cedar as well as fir, and further that. the prices quoted in “The
Timberman” shall prevail for the entire month in which same are
published,
B. For the use of said railroad for hauling logs purchased from
other parties, or supplies for parties other than for Contractor, or
United States Forest Service. S5.90 per car,
C. Contractor shall within ten days of presentation of invoice and
sale showing logs delivercd, reniit Corporation in full payment for
stid logs so delivered according to the prices and seales herein. pro-
vided, and shall within ten days of the end of each month during
the life of this contract, remit Corporation the amount due for use
of said railroad in hauling logs and supplies other than for logs and
supplies owned hy Corporation, as hereinbefore provided. For
uh the purpose of assurine Corporation that such payments will
be made as aforesaid, Contractor agrees to maintain on de-
posit with Corporation at its direction, mot more than $4,000.00,
which sum: when so deposited may be applied by Corporation in the
making of payments past due and unpaid by Contractor hereunder.
4. All sealing provided for in this contract shall be in accordance
with the Spaulding Log Seale, Aq logs purchased by Contractor
from Corporation shall he sealed hy sealers designated) by Corpora-
tion and be sealed on the log deck of the Contractor's mill. or mill
pond or booming grounds where the logs are assembled and rafted
for delivery to sawmill, AN Corporation’s logs shall be marked be-
fore being removed from the woods With a suitable brand to show
Vorporation’s ownership. In arriving at the quantity of timber
taken and to be paid for by Contractor hereunder the entire mer-
chantable contents of the lous shall be computed. Merchantable tim-
her hereunder shall inelude No. 1, 2and 3 logs graded according to
the present rules, methods and standards of the Puget Sound Logging
«Sealing Bureau. with the exception that the said rules, method and
— St en BIS EES 4 Ki oie AE Le bis cle ete eT BB Cee ret > ieee Ce ar ~%
16 C. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
standard shall be extended to include nine foot logs and all logs
shall be measured in multiples of one foot.
5. Contractor guarantees and assures Corporation is shall have
hauled and taken delivery of all Corporation’s logs as af oredescribed
over said railroad and paid for same according to the method above
described within one year from the date of Corporation turning rail-
road over to Contractor for operation hereunder.
6. Contractor agrees that he will at all times exercise the utmost
care in the distribution and disposition of the debris and inflam
: mable matter left or remaining from the operations under this con-
4 tract so that the same shall not become a fire hazard, it being
27 understood Contractor shall for the purpose of complying
with the above assist and follow the directions of the Wash-
: ington State Fire Warden and of the Forest Ranger of the United
3
4
=
3
States Forest Service in charge of this district, and to this end agrees
to haul all supplies offered to him over said railroad by the United
5 States Forest Service for the purpose of clearing up possible fire
& hazard along right of way of said railroad. It being further under.
; stood, however, that movements of ears carrying such supplies will
be subject to the regular movement of log trains and that Contractor
shall have the right to charge said United States Forest, Service for
such hauling at the rate of twenty (20¢) cents per ear mile.
7. Corporation agrees to immediately put the roadbed of. said
railroad into an operating condition for the uses of Contractor, and
) Contractor agrees, upon said railroad being turned over to him for
operation, to keep and maintain the same in operating condition
particularly as to alignment and surface and that he will repair said
roadbed as need therefor arises from time to time with gravel of
good quality, or other similar authorized material, in order that said
roadbed will at all times be adequate and sutliciently safe for reason-
able speed and load, and further agrees to pay for any damages caused
to rail through surface bending, installation of switches, line bends,
: or otherwise, as a result of Contractor’s acts or negligence in the
maintenance or operation, and to return and deliver back to Cor.
poration or its assigns said railroad at the expiration of this agree-
ment in as good condition as it was at the time of his taking po
session thereof for operation under this contract, reasonable wear,
tear and depreciation excepted. It being further understood that
Contractor will in all matters pertaining to the maintenance, cate
and operation of this railroad conform to and carry out the
28 directions of the supervisor appointed by the Corporation to
inspect and have charge of the maintenance of said railroad,
and shall in all matters and things comply with the terms and pre
visions of the statutes of the State of Washington governing the
operation of said railroad.
eatery
vient
8. Contractor agrees to furnish a proper list to Corporation of all
cars and equipment used by him in the operation of said railroad,
together with any additions thereto as occur from time to time, an
4
a
4
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3
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:
4
™ n SN ee ee ee Ee UL ee eee rl
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C. J. ERICKSON ET AL. VS. U. S. OF A. ET AL. 17
that he will enter into negotiations with the Seattle, Port Angeles
& Western Railroad in his own name providing for the necessary
connections over the branch line of the said Seattle, Port Angeles &
Western Railroad, and that he will protect and save harmless the
Corporation from any injury, liability, damages or claims which
may, might or could occur from the use of said railroad or from the
we of the railroad facilities owned by said Seattle, Port Angeles &
Western Railroad and used by Contractor.
9, Contractor agrees to assume and pay all the handling, mainte-
nance and other costs, charges and expenses arising from the opera-
tion of said railroad properties and appurtenances and shall protect
and save harmless the Corporation from any liability for payment
of same, together with liability for all claims and injuries to prop-
erty or persons, whether employees of Contractor or otherwise, and
agrees to maintain said railroad in running order at all times, re-
pairing the same as demand therefor arises, it being understood Con-
tractor shall repair at his own expense all injury caused to said rail-
road by Acts of God, strikes, storms, fire or other damages arising
either fromm causes beyond the control of Contractor or otherwise, as
von as it is reasonably possible to repair same, consideration being
had in all cases to the seasonableness of the weather for making such
pairs, it being understood Contractor shall be entitled to an ex-
tension of time for hauling as provided in Paragraph 5
“hereof equal to the time required to repair damages arising
from causes beyond control of Contractor. It being under-
tool Contractor shall at all times exercise the necessary care and
precaution to provide for necessary side and over-head clearances
of all structures or tunnels on said railroad and does assume the
ibligation and responsibility that any or all loads hauled over rail-
mad do net exceed or over-tax the capacity of such structures or
tunnels, It being understood Contractor shall at the time of de-
livering said railroad back to Corporation or to its assignee convey
iy proper deed and satisfactory title all essential betterments eon-
dructed or added to said railroad,
10. It is the principal intention of this contract that Contractor
hall purchase and haul to his mill logs owned by the Corporation
thich are now down and felled in the immediate district served by
aid railroad, however, Corporation agrees that Contractor may pur-
hase and haul any logs owned by other parties lying in the imme-
liate district served by said railroad, paying Corporation for the
iauling of said logs according to the terms set forth in Sub-para-
mph Ds of Paragraph 8 above, it being provided, however, Con-
tractor shall not purchase or haul. or contract for the purchase or
lauling of any logs felled as the result of new operations instituted
ubsequent to the date of this contract, either by Contractor or others
rithout first having or obtaining the written consent and approval
fthe Corporation to such contracts, purchases or arrangements for
wuling. It being further understood Corporation reserves the right
tthe time of approving such contracts to direct the proper terms
thich shall govern the hauling rate for use of said railroad. In
3—606
2 Societal nea iesthas
Baraca FRE anbewaswercee
ow a
18 C. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
this connection Corporation has released certain fallen timber to
owners along the so-called Calwa and Boeckman Creek Spur Systems
and it is contemplated Contractor may or will purchase said fallen
timber from said owners and to this end Contractor, under the
direction and supervision of the Corporation, shall have the privi-
lege after first having obtained the necessary rights from
30 property owners interested, to lay rail on graded _ portions
of said Calwa and Bockman Creek Spur Systems and for
this purpose use the ties owned by Corporation lying along: said
Spur Systems, it being further provided Contractors shall supply
his own rail and equipment for this purpose and bear all cost,
charges and expense arising from said construction and shall within
one month of the expiration of this contract, either by cancellation
or otherwise, remove said rail and equipment and deliver back to Cor.
poration or its assigns such ties owned by the Corporation as may
be used in the construction of such spur tracks, in the manner and
place then designated by such Corporation or its assigns.
11. The Contractor shall at the time of execution of this contract
furnish the Corporation with a surety bond with some Surety or Ip.
demnity Company duly authorized to execute such bond and satis
factory to Corporation, in the penal sum of Twenty Thousand
($20,000.00) Dollars, conditioned upon the full and faithful per
formance by the Contractor of all the matters, things, terms and
conditions of this agreement in the manner and within the time
limits herein provided,
12. Corporation agrees to allow, in conjunction with the United.
States Forest Service and Corporation, at all times during the life
of this agreement, the joint and free use of the telephone lines and
system constructed by Corporation along said railroad and used in
connection therewith. It being understood that Contractor shall
maintain said telephone system in working order, making repairs
thereto as may be necessary from time to time and will return said
telephone system at the expiration or cancellation of this contract
to Corporation in as good order as the same was in at the time of its
being taken over by Contractor, free from liens, obligations and ex-
pense incident to connection with other lines during period
31 or operation or otherwise, and that this telephone system
and its usage shall in all matters and things be under the
supervision of the Corporation’s supervisor, as in case of the railroad
as hereinbefore provided.
13. Contractor agrees that he shall not operate this railroad in any
way whereby the same may become a common carrier within the
meaning of the laws of the State of Washington, and shall haul or
transport no passengers over this road for hire, without first having
and obtaining the written consent of the Corporation thereto,
14. Corporation reserves the right at all times and upon reason:
able notice to go upon said railroad and operate a train over the same
for the purpose of inspection, showing said railroad property to poe
sible purchasers, or otherwise,
Pilea Bice Vacca” WR Sa RIS aa tas eG
PAD, Sek ARNT Ms SNS al a Lan Nar nL Bea Acne abel bait A a wt WAGES i a
C, J. ERICKSON ET AL. VS. U, 8. OF A. ET AL. 1v
15. Corporation reserves the right during the life of this contract
to advertise said railroad for sale and to sell the same and in this
connection to assign all its right, title and interest in and to this eon-
tract to ally person or persons it may desire, it being understood at
the time of any such sale this contract and any or all its terms may
be adjusted by Corporation to meet the demands or requirements of
any such purchaser.
16. Corporation reserves the right at anytime during the life of
this agreement to enter into negotiations with any third parties it
may desire for the use of said railroad properties, it being understood
that any arrangements made with said third party or parties shall
he subject to all the rights and benefits of the Contractor, that is to
aly, No arrangement other than a sale or transfer by Corporation
of suid railroad shall be entered into by this Corporation which shall
prevent, during the ordinary working hours, the Yontractor from
operating his equipment on right of way as needed in his operation
or of the right to remove or haul such logs, it being understood, how-
ever, that Corporation shall be the sole judge of whether or
$2 hot any contract made with third parties shall so deprive,
hamper or interfere with Contractor's operations hereunder ;
It being further provided that in case Corporation enters into a eon.
tract with third parties for the use of said railroad, said third parties
shall bear their share of the expense of maintenance and upkeep of
suid railroad bed which shall be proportionate to the amount of such
weh third parties make of such railroad as such use bears to. the
total use put upon said railroad, that is to say, each operator using
suid railroad shall bear his share of the expense of maintenance as
the amount of his or its traftie bears to the total traffie over said line,
measured in each operator's car miles, and that this contract may at
the time of execution of such contract or contracts with third persons,
he adjusted accordingly.
17, Neither this contract nor any inter-st herein shall be trans-
ferred or assigned by the Contractor to any person, firm or company
without the written consent of the Corporation, and in case of said
transfer or sale without its written consent Corporation may refuse
fo carry out this contract either with the transferror or transferee,
but any rights of action for breach of this contract by the Contractor
are reserved by the Corporation.
IS. Time is hereby declared to be the essence of this contract,
In witness whereof, the parties hereto have caused these presents
to be duly executed the day and year first above written.
UNITED STATES SPRUCE PRODUCTION
CORPORATION,
By C. T. STEARNS,
President,
[Corporate Seal. ]
By JOHN P. MURPHY,
Secretary,
C. J. ERICKSON,
MN CLD DS DIN TAME Aad! ACA ET Rae! AT NES a Ea RSLS Si AOE catenimmibbiiaestinimines ede Tie aa
20 C. J. ERICKSON ET AL. VS. U, S. OF A. ET AL.
Witnesses :
W. M. T. CONLIN.
ROSE SHOPP.
J. P. MURPHY.
GEO, EGAN.
Approved as to form May 5, 1919,
i J. P. MURPHY,
F General Counsel.
i
5 Approved May 5, 1919,
’ G, B. HENNINGTON,
Manager Engineering Department.
Approved May 6, 1919.
WM, J. CONNIFF,
Acting Comptroller,
ot Exuinir “3.”
Supplemental Contract SPC-470, 8/2/20,
File No, 318,
United States Spruce Production Corporation.
Supplemental Logging Contract,
This supplemental agreement, Made and entered into at Portland,
Oregon, this 30th day of July, 1920, by and between United State
Spruce Production Corporation, a Washington corporation, whieh
corporation was formed by direction of the Director of Aireraft Pro
duction of the United States pursuant to the provisions of Chapter
16 of an Act of Congress entitled “An Act making Appropriation for
the Support of the Army, ete.,” approved July 9, 1918, hereinafter
referred to as the “Cororation,” and C.J, Erickson, of Seattle. Wash-
ington, hereinafter referred to as the “Contractor,” Witnesseth:
Whereas, the parties heretofore, to wit, on the 21st day of April,
1919, entered into a contract for the logging of certain timber in
; Clallam County, Washington, said contract being numbered and
F named SPC-358, which logs and timber for the purpose of this sup
plemental agreement shall hereinafter be known as the “right of way
logs,” and
Whereas, Corporation is negotiating for the purchase of certait
standing timber and down or fallen fir, spruce, cedar and hemlock
logs in connection with the adjustment of certain claims against Cor
poration, said standing timber and fallen logs being located at “Lake
Pleasant Prairie,” in Clallam County, Washington, and on land now
owned by Clallam Lumber Company, and more particularly described
BOR ws Me
C. J. ERICKSON ET AL. VS. U. S. OF A. ET Aden 21
as the southwest quarter (S, W. 14) of Section thirty-five
34 (35), Township Thirty (30) North, Range, Thirteen (13)
West, Willamette Meridian, excepting the right of Way of
Spruce Production Railroad No, 1, and
Whereas, Contractor is desirous of entering into a supplemental
contract with Corporation for the logging of said standing and fall/en
timber, in addition to the timber covered by said Contract SPC-358,
such logs, timber and forest products situated on the said Section
thirty-five (35), and which are the subject matter of this supple-
mental agreement, for the purposes of this agreement being known
as the “prairie logs,” and it is the mutual desire of the parties hereto
tomake certain amendments, adjustments and amplifications of said
Contract SPC-358,
Now, therefore, this memorandum witnesseth: That in considera-
tion of the premises and of the covenants iad agreements of the
parties hereto, it is mutually agreed as follows:
J, The operation of Contract SPC-358 shall he extended to and in-
cuding the first day of January, 1921, and said eontract shall re-
main in full force and effect in each and every respect unless sooner
terminated, and the terms, conditions and covenants in said Contract
SPC-358 contained shall in all respects govern and apply to the pur-
chase of logs sold and delivered under this supplemental contract,
except as in this supplemental agreement amended, but the exeeu-
tion of this sup-lemental agreement shall in ho wise be deemed to
terminate, invalidate or destroy the effect of said Contract SPC-358
except as herein amended.
2. Paragraph 3, Section a. of said Contract SPC-358 is hereby
amended in the manner following, to wit: Contractor agrees to pay
to Corporation for all right of Way logs in Contract SPC-358 agreed
to be bought and sold at the rate of seven dollars and twenty
cents ($7.20) per thousand feet, board measure, for all fir,
spruce and cedar logs, and at the rate of three dollars ($3.00)
yer thousand feet, hoard measure, for al] hemlock logs, and this
change in price shall become effective from and after the execution of
this contract,
3. Contractor agrees to purchase and Corporation agrees to sel] one
nillion (1,000,000) feet. board measure, per month of said prairie
logs in this supplemental contract agreed to be bought and sold at the
ame rate as the amended schedule for right of way logs, namely,
wven dollars and twenty cents ($7.20) per thousand feet, board
measure, for all fir, spruce and cedar logs, and three dollars ($3.00)
yer thousand feet, hoard measure, for all hemlock logs. Contractor
‘hall deposit with Corporation as an advance payment for prairie
bgs on the first of each and every month hereafter during the life
f this supplemental contract. the sum of five thousand dollars
($5,000.00), which sum shall be an advance payment on one million
1,000,000) feet of logs, and such monthly payment of five thousand
dollars ($5,000.00) shall be made by Contractor to Corporation
&
&
ie
i
%
8
y
Ne
\
4
¥
Veo ie lgon ws
Di sitcvinrc. Ant gM etal Le
yi eshte ene ane une =
—— TT
p C. J. ERICKSON ET AL, Vs. U. §. OF A. ET AL,
whether the said p-airie logs have been removed by Contractor or
not.
An accounting shall be made at the end of each month, accerding
to the prices and terms to be paid by Contractor for the various kinds
of logs bought and sold, and if at the time of such accounting it shall
appear that there is a sum due and owing to Corporation by reason
of the respective value of the different classes of logs in excess of the
sum of five thousand dollars ($5,000.00), then Contractor shall pay
to Corporation such excess amount as shall have been de
OG termined at the end of each month, Lf, however, according
to said schedule of prices the sum of five thousand dollars
($5,000.00) shall appear as an amount in excess of the price of on
million (1,000,000) feet of logs to be paid to Corporation, then and
in that event such excess amount so appearing shall be credited t
the Contractor upon his next monthly payment of five thousand
dollars (85,000.00) as herein provided.
4. In consideration of the price at which hemlock logs are to le
delivered to Contractor hereunder, it is agreed that no credit or allow
ance shall be made Contractor on account of the falling or bucking
of any of the standing timber in this supplemental memorandun
contracted to be sold.
5. The operation of this contract is limited to such standing timber
as is now spotted and marked with a cross, and Contractor shall fel
only such timber as is now spotted and within the limits of the pre
ent cut over area, in addition to all such fallen and down logs, as ar
now located on the said southwest quarter (S. W. 1%) of Seetion
thirty-five (35).
6, Contractor agrees to remove the said prairie logs in a systematic
and orderly manner, so that each acre worked over shall be com
pletely cleaned of all merchantable logs and timber, and in such
manner that after logging operations have ceased the ground will be
clean and in good condition and sufficiently free from all tire he-
ard arising by reason of the accumulation of debris or combuetid:
material, to comply with the requirements of Corporation and of th:
regularly constituted fire authorities.
6U4. Merchantable logs as hereinreferred to shall be defined in
accordance with paragraph 4 of Contract SPC-358, but: said pan-
graph 4 of Contract SPC-358 is amended so that all right d
37 way as well as prairie logs shall be scaled by a representatin
of Corporation at the time they are loaded on cars by Cor
tractor, Such seale shall be conclusive and binding upon the partie.
but Contractor shall have the privilege of being present at and check
ing such scale, and in the event of a dispute as to scale or merehan
ability, the matter shall he referred to Puget Sound Log Scaling ant
Grading Bureau, the cost of such reference to be shared equally
between the parties.
7. Contractor further agrees and as a part of the consideration ft
the execution of this supplemental memorandum to clean up thr
SOS CE ERE ARE MR ht Bak AO ee BI, See DELIA Age eatin es Seana
C, J. ERICKSON ET AL. VS. U.S. OF A, ET AL. 23
(3) miles of right of way of Spruce Production Railroad No. 1 and
place the same in proper condition and to the satisfaction of Corpo-
ration and of the representatives of the Forestry Service, Depart-
ment of Agriculture, of the United States, or of the Fire Warden
of the State of Washington, as their jurisdiction may appear. The
location of such three (3) miles of right of way to be so cleared and
ceaned of all debris and combustible material shall be determined
ly Corporation during the next burning season, and Contractor shall
begin and diligently proseente such work upon the written demand
of Corporation, but such three (33) miles of right of way shall be
situated upon that portion of Spruce Production Railroad No. 1 over
which Contractor is operating or has operated over under Contract
sPC-358. Nothing in this supplemental agreement contained, how-
ever, Shall be deemed to relieve Contractor from the liability of
cleaning up and removing fire hazard upon the right of way of Spruce
Production Railroad No. 1 as he shall proceed with his logeine opera-
tions, so that he will leave the right of way in sueh condition that
no greaier fire hazard shall be created than now exists.
38 8. Under the terms and conditions of said Contract SPC-
8O8, Contractor has assumed a certain liability for deferred
maintenance on said Railroad No. 1. The cost of carrying on the
work and placing the roadbed in proper condition is hereby stipu-
lated between the parties hereto to be the sum of Fifteen hundred
dollars ($1,500.00) as covering all deferred maintenance to date,
and Corporation agrees that it will relieve Contractor of his liability
on account of such deferred maintenanee charge on that part of
Railroad No. 1 heretofore operated over hy Contractor, upon the
payment to it of fifteen hundred dollars (81,500.00), in addition to
the work required to he done by Contractor in cleaning the right of
way of Spruce Production Railroad No. 1 for a distance of three (3)
miles as immediately hereinbefore set out. Sueh sum of fifteen hun-
dred dollars ($1,500.00) shall be paid hy Contractor to Corporation
immediately upon the exeention of this supplemental agreement,
% In order to assist Contractor in carrying out the terms of this
wpplemental agreement, Corporation acrees to extend the operation
f paragraph 6 of Contract SPC-258 in the maimner following: Corpo-
rition agrees to move promptly with its own motive power, when
atch motive power shall be available, all empty cars and cars loaded
with material, supplies and equipment for Contractor for the pur-
jwses of this contract from the junetion of Spruce Production Rail-
mad No. 1 with the Chicago, Milwaukee and St. Paul Railroad at
Jovee, Washington, to the nearest siding east of Contractor's front
of operations, and to return loaded ears from such siding or from the
fast front of Contractor's operations to said junction at Jovee, Wash-
ington. In no event shall Contractor's locomotives be allowed to
ss the east switeh of the siding first cast of Contractor's seat of
operations, except upon the eXpress written order of the Corpo-
a ration’s Superintendent upon the ground. In this econnee-
tion, Corporation agrees that when. it undertakes to deliver
RESO NEP
erie wee oy ay
eds
2
a
¢
LO ral Ssh iig ae ets
arts
24 C, J. ERICKSON ET AL. VS. U. 8. OF A. ET AL.
empty cars for Contractor at the nearest siding east of his front of
operations, the same shall be delivered at such siding within sufficient
time to allow Contract eight (8) regular working hours of time free
from demurrage charge in which to load said empty ears and return
them to said siding for movement to Joyee, Washington, and Corpo-
ration shall become liable for any demurrage charge accruing against
Contractor because of its failure to allow Contractor such time. Con.
tractor agrees to pay Corporation at the rate of twenty (20) cents per
‘ar mile for each éar so moved. In the event that Contractor shall
desire to move empty ears, cars of equipment and supplies and car
loaded with logs from Joyce, Washington to the seat of his operations
and return with his own motive power, arrangements for such open-
tions by Contractor shall be made only upon the special written per-
mission of Corporation’s superintendent on the ground, and in case
of said operations under Contractor's own motive power, Contractor
agrees to pay Corporation at the rate of (714) cents per car mile for
each ear so moved over Spruce Production Railroad No. 1. For the
purpose of computing payments hereunder, each locomotive shall be
considered as equivalent to three (3) cars, and each steam shovel
shall be considered as equivalent to two (2) cars. ATL sums earned
as tariffs by Corporation as above provided, either as charges for
moving Contractor's equipment and cars or for track charges for
Contractor's operations, shall be due and payable to Corporation upoa
the tenth day of each month for the month immediately preceding.
It is understood that there is no agreement between Corporation
and any connecting Carrier, and that Corporation is acting
40 hereunder solely for the accommodation of Contractor, and in
no event shall Corporation be liable for any demurrage,
ewitehing or other charge made by any connecting carrier, except
as hereinabove provided, and Contractor agrees to save Corporation
harmless from any and all such demurrage, switehing or other
charges, whether cars are moved by Corporation or by Contractor,
In the event that Corporation should discontinue its operations over
its Railroad No. 1, and should dispose of its motive power before the
expiration of this supplemental agreement and of the extension of
Contract SPC-358, then the hauling and maintenance provisions
originally contained in Contract No, SPC-358 shall prevail. Notice
of such discontinuance of operations by Corporation shall be giver
to Contractor ten (10) days in advance.
10, Contractor agrees to and shall maintain the right of wav
and roadbed of Spruce Produetion Railroad No, 1 from the east
front of its operation to the west end of said railroad near Lake
Pleasant, Washington, as more particularly provided for in said Con-
tract SPC-258, and Corporation agrees to maintain the remainder of
said right of way and read bed of Spruce Production Railroad No. 1.
11. In the event that it shall become necessary for Corporation (0
operate trains over that part of Spruce Production Railroad No, |.
which is west of Contractor's east front of operations, such trains wil
be moved at the mutual convenience of both parties. Whenever
es ESE STIRS ETRE LIS DAC LAL EMS REEL IGE EOLA RSE ch DDS Nir aS,
C. J. ERICKSON ET AL. VS. U. S. OF A. ET AL. 25
hecomes necessary for Corporation to move cars of its own material
from the east front of Contractor's operations to a point west there-
from, Contractor agrees that he will on demand in writing diligently
undertake with his own motive power to do such switching and mov-
ing of cars and rolling stock as Corporation may require, and
41 Corporation agrees that it will pay Contractor for such op-
erations at the rate of twenty (20) cents per ear mile for each
car so moved at Corporation's instance.
12. Contractor agrees, and this supplemental memorandum is
entered into with the express understanding that no greater amount
of prairie logs than one million (1,000,000) feet shall be removed by
Contractor during any month unless one million (1,000,000) feet of
right of way logs shall have been removed, but nothing herein con-
tained shall relieve Contractor of the requirements to pay in advance
to Corporation on the first day of each and every month the sum
of five thousand dollars ($5,000.00) as consideration for one million
(1,000,000) feet of prairie logs as hereinbefore provided, whether
such Jogs shall have been removed or not. Contractor shall brand
all prairie logs with a separate brand, in order that the same may
be easily distinguished from the right of way logs. Contractor
further agrees that in the event the footage of prairie logs moved
by him during any period shall exceed the footage of right of way
logs removed, then Corporation may at its discretion and upon
written notice to Contractor require Contractor to suspend the log-
ging of prairie logs until the footage of right of way logs removed
shall be equivalent to the footage of prairie logs, and Contractor
agrees and covenants with Corporation that upon receipt of such
notice he will so suspend the removal of prairie logs until the footage
of right of way logs equals that of the prairie logs,
13, Contractor shall, at the time of the execution of this supple-
mental agreement, and before the same shall become effective, fur-
nish Corporation with an extension of the surety bond required to be
furnished in paragraph 11 of Contract SPC-358, or with a
L new surety bond with some surety or indemnity company
duly authorized to execute such bond and satisfactory to Cor-
poration in the penal suin of twenty thousand dollars ($20,000.00),
conditioned upon the full and faithful performance by Contractor
of all the matters, terms and conditions of this agreement, and of
the extension of Contract SPC-358, in the manner and within the
time limits in said SPC-358 and this supplemental memorandum set
out,
H. This supplemental agreement shall become effective upon its
execution and upon the furnishing of a bond as hereinbefore pro-
vided, and shall remain in full force and effect until the Ist day of
January, 1921, the date to which Contract SPC-358 has been’ ex-
tended, unless both shall be sooner terminated as herein provided.
In the event that Corporation shall sell and dispose of its Railroad
No, 1 at any time during the life of this contract, Corporation re-
serves the right upon thirty (30) days’ written notice to Contractor
4I—606
i
q
‘%
S
S
ES
3
3
is
26 C. J. ERICKSON ET AL, VS. U. 8. OF A. ET AL.
to cancel this supplemental contract and the extension of Contract
SPC-358, and upon such thirty days’ written notice all liability of
Corporation, either in law or equity, to carry out the terms of said
supplemental agreement or extension of Contract SPC-358 shall be
determined and cease. However, upon giving of such notice of can-
cellation the obligation of Contractor hereunder to purchase prairie
logs shall be terminated, but Contractor shall continue operations
under extension of Contract SPC-358 during the ensuing thirty (30)
days after giving of notice of cancellation. Corporation reserves the
privilege at its discretion to assign all its right, title and interest in
this supplemental agreement and in the extension of Contract SPC-
358 to such parties as may purchase its Spruce Production Railroad
No. 1, and Contractor agrees and covenants that he will carry out all
the terms and conditions herein imposed upon him with such as
signee of Corporation in like manner and subject to all require.
ments herein contained, being as fully bound to such assignee
43 as to Corporation.
15. In the event that Contractor shall have failed to remove all
prairie logs before the 1st day of January, 1921, but shall have
removed all right of way logs before said date, and in the further
event that Corporation shall still retain title and possession of its
Spruce Production Railroad No. 1, then Contractor agrees to re
move all prairie logs at the rate of two million (2,000,000) feet per
month during the time Corporation shall still retain possession of its
Spruce Production Railroad No. 1 until all merchantable logs shall
have been exhausted, If, however, Contractor shall have failed or
refused to remove all prairie logs from said southwest quarter (8. W,
14) of Section thirty-five (35) and from the property of Corporation
before twelve (12) months from the date of the execution of this
contract, then the rights of Contractor in said prairie logs shall be
forfeited and held for naught, and the title to such logs shall revert
to Corporation.
16. In the event that Contractor shall at any time fail, refuse or
neglect to carry out each and every covenant, term and condition
herein contained, to be kept by Contractor, both as to this supple
mental agreement and as to the extension of Contract SPC-358, then
Corporation reserves the privilege to declare all the rights of Con-
tractor under this supplemental agreement and under the extension
of Contract SPC-358 forfeited forthwith upon written notice to Con-
tractor, and all moneys paid by Contractor and all logs not removed
shall revert to and remain the property of Corporation, All notice
or demands upon Contractor shall be given in writing, addressed and
mailed to Contractor at Seattle, Washington. Notices and demand:
so given shall be suflicient for all purposes under this agreement.
44 17. Neither this supplemental contract nor the extension
of Contract SPC-358 herein provided, nor any interest in
either of them, shall be transferred or assigned by the Contracte!
to any person, firm or corporation without the written consent of
Corporation, and in case of such attempted transfer or sale without
Sle Sue
C. J. ERICKSON ET AL. VS. U. S. OF A. ET AL. -!
its written consent, Corporation may refuse to carry out this contract
either with Contractor or his assignee, but any rights of action for
breach of this contract by the Contractor are reserved by Corporation.
18. The Contractor hereunder is acting independently and has
no authority to hold himself out as the agent of this Corporation or
to bind the Corporation, and agrees to assume and pay all hauling
and maintenance and other costs, charges and expenses arising from
the operation of this supplemental agreement, and of the extension
of Contract SPC-358, and shall protect and save harmless this Cor-
poration from any and all liability or damage for all claims or in-
jury to property or person, whether employees of Contractor or other-
wise.
19, Contractor agrees that there is no written agreement or verbal
understanding of any kind or nature with Corporation or any of its
representatives whereby this agreement or any part thereof is altered,
modified or varied in any manner whatsoever from the conditions
above set out, nor any of its conditions waived,
20. Time is hereby declared to be of the essence of this contract.
In witness whereof, the parties hereto have hereunto set
45 their hands and seals the day and year first above written.
[Seal of United States Spruce Production Corporation. ]
UNITED STATES SPRUCE PRODUCTION
CORPORATION,
By CHAS. VAN WAY,
President.
By MAX CHURCH,
Secretary.
C. J, ERICKSON. [ SEAL. ]
Witnesses :
STELLA C, UTT.
k. R. CARLSON,
Approved as to form Aug, 20, 1920.
MAX CHURCH,
General Counsel.
Approved —— —, 1920.
J
Comptroller-Treasurer.
a ee ee eee ee Bite S eT) Ae
a
25 C. J. ERICKSON ET AL. Vs. U.S. OF A. ET AL.
46 Exuisir C.
We Will Bond You.
United States Fidelity and Guaranty Company,
No. —. Baltimore, Maryland. $20,000.00.
Know all men by these presents; That we, C. J. Erickson of
Seattle, Washington, as Principal, and the United States Fidelity
and Guaranty Company, a corporation organized and existing under
a and by virtue of the law of the State of Maryland, and authorized
3 to do business of surety in the State of Washington, as surety, are
3 held and firmly bound unto the United States Spruce Production
: Corporation, in the full and just sum of Twenty Thousand and
2 No/100 ($20,000) Dollars, lawful money of the United States of
a America, for the payment of which sum well and truly to be made,
. the said Principal hereby binds himself, his heirs, administrators,
4 and executors, and the said Surety hereby binds itself, its successors
2 and assigns, jointly and severally, firmly by these presents.
4 Sealed with our seals and dated this 16th day of August, 1920,
% The condition of this obligation is such, That,
? Whereas, the above bonded Principal, C. J. Erickson, has entered
# into a supplemental contract bearing the date of July 30th, 1920,
; with the United States Spruce Production Corporation, for the pur
2 chasing of certain cedar, spruce and hemlock logs, at prices listed
3 in attached contract, together with the operation of a certain rail:
2 road, marked Exhibit A., and made a part hereof, and
2 Whereas, one of the conditions of said contract is Ghat the said
& C. J. Erickson shall furnish a bond in the sum of Twenty Thousand
and No/100 ($20,000.00) Dollars, guaranteeing the faithful per
formance of said contract.
‘ Now, therefore, if the above bonded Principal, C. J. Erickson,
in all matters and things, shall comply with the said contract ae
cording to the terms and conditions of same and shall make due
and prompt settlement for such logs and operate said railroad as
2 provided for in said contract, then this obligation shall be void.
otherwise to remain in full force and effect.
(Signed ) C. J. ERICKSON.
[ Corporate Seal. ] UNITED STATES FIDELITY AND
GUARANTY COMPANY,
(Signed ) By C. HW. CAMPBELL,
Attorney-in-fact.
wi eeeboik
PO
Baldor ten?
(Internal Revenue Stamps—S80¢. )
Pectin iar ascrris euler sn
EATS Bo LAE OOM R AS, aa Se hol cio pai ch Mad eh AA andl No th a nad Be rites SRP RTO BD ba SS ay Eg RTS
C, J. ERICKSON ET AL, VS. U, §. OF A. ET AL. 29
Exist “D."
Account of C. J. Erickson.
Downs Bldg.
Seattle, Washington.
“Right-of-way Logs.”
Denits.
atten
—
Invoice
Date. humber. Amount, Total. Date.
31-19
930-19
131-19
11-30-19
1231-19
131-20
220-20
1-20
50-20
31-20
6-00-20
7-31-20
8-31-20
W020
1031-2»
&31-20
ROO
1031-20
11-30-20
12-31-20
1-31-21
1-31-21
#+17-20
10-19-20
11-17-20
1-18-21
1-18-21
2-26-21
#13-21
LLLLLLILLELELLLD
ie tnes
--» 2,787.05 10-19-20...
ve. 8.866.509
ee 2AHH5.S6
3,355.18
vee 1,680.93
nee RRSLBE
3,666.59
2.250. 86
1,530.90
». 4412.17
ak 577.44
6,946.21
5358.68
5,284.84
°
svee 2.077.72
°
.
50,731.06 50,731.06
“Prairie Logs.”
LL. S.354.... 2,849.56 9- 7-20..
Ll, B57.... 10.780.50 9-22-20...
.
LLLLLLS.
350..
361....
. S68...
BOD...
OU...
-+ 10,769.56 10-26-20...
9,997.29 11-15-20..
7,298.87
S75 .04
1271.52
45,792.34 45,792.54
“Train Service.”
12,012.17 12,012.17
CREDITS.
ay cS
Amount. Total.
6.946. 21
6,946.21 6,946.21
5,000.00
249.56
5,000.00
5,000.00
17,849.56 17,849.56
a
30 Cc, J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
“Hauling Logs.”
DEBITS. CREDITS.
— 5 r A... —
Invoice
Date. number. Amount. Total. Date. Amount. Total,
Oct. 1919 L.S. 52.... 526.91 |
Oct. 1919 L.S. 51.... DOS. 67 |
Dec. 1919 L.S. 72.... 433.58 |
Dee. 1919 L.S. §$1.... 383.20 |
Jan. 1920 L.S. 8S8.... 86.55
Feb. 1920 L.S.220.... 315.05
48
Mar.1920 1. S. 252... 455.02
Apr. 1920) L.S.303.... 0 535.68
May 1920 LL. 8.337... 488.72
June 1920) LS. 341... 421.80
July 1920 L.S.348... 41.3
4246.45 4,246.45
“Clearing Right-of-way.”
Wg a ke BNE aR HOARE LA Ot
4-18-21 L.5d2....... 5,968.65 5,908.65
4 116,750.67
$
4 49 Account of C. J. Erickson.
% Downs Bldg..,
% Seattle, Washington.
s Car Rental.
3 DEBITs. CREDITS.
5 r — ==
3 Date. Inveice number. Amount. Date.
; ee ee | eee 531.00 10- 7-19 Check........+.
4 10-919 TL. 15.......4-- 159.005 11- 4-19 wpe ee benses
e a a ae * Capeeaeeyer 294.00 1-28-20 ks aseceees
if 11-20-19 L. 17.........- 279.00 2-10-20 wee ANODE
11-24-19 IT. 18.......... 95.00 3- 8-20 ©. So 5ea phe we
12-19-19 LL. 19....---.-- 360.00 B= 4-20 S Xenaseeees
1-16-20 L. 25.......--- 372.00 5- 420 Cr. Memo......
3-12-20 LL. 28.....0.0e- 357.00 4-26-20 Check.......+--
3-12-20 L. 20........-- 460.00 4-16-20 ety
4-12-20 L. 30.......... 403.00 5-24-20 M aWaeevenas
5- 3-20 L. 31.......... 390.00 8 9-20 M | Ssenukna .
7-520 L. 32......-4.. 334.00 8-23-20 om aebake chan
8-18-20 L. 33........-- 341.00 9- 7-20 MS AtSRER ESS
® 820 L. 36......66-- 310.00 9-27-20 mM Gino wan
10-11-20 L. 38......-..- 300.00 10-26-20 S scsaseanes
L
| ee 3) eee 310.00 6-14-21 Cr. Memo......
L. 42. .ccccceee 270.00 6-80-21 “ mo Gsieke
L. 4d. cceeeeees 248.00 8-16-21 Check held as
2-28-21 L. 47.......--- 244.00 deposit.
L. 48...eee00-- 252.00
| : ee 279.00
| On. See 180.00
hd BRT MALDINI St ha apn Bea PI ote.
y
_
i
! tee ~~
a Wate inahed.
C, J. ERICKSON ET AL, VS. U.S. OF A. ET AL. OL
Train Service,
St iy a | 21.00
Merchandise.
Desrits. CREDITS.
A cencinmsatinntinin, — ee —,
Date. Invoice number. Amount. Date. Amount.
ee eae 7.15
10-10-19 B.1006.......... 238.53
M-OB-18 3 BB. 2186.0. cccs . BOD . 67
oa 2. &: see 81.02
OD BB. BBR. ccc ccc 14.57
Labor.
oe a a 502.67
en i ee 111.96
4135-21 IL. 6Gil..... ee 75.99
ee 126.17
Scaler’s Salary.
RM 565s hes cae dic oa wx 130.00
LS ice weh sae pea dc bk 130.00
PE xn Canaan sw cine < 58.33
MONI 0 hse hin hw eae 43.33
4-30-20....... ceneak icicle 87.50
ii EEC ore S7.50 |
POP R chen Gk Aw aw ks cm S7.50 @:
oo A 87.50 :
PUMUMENE Seco ha es oot 87.50 a
wo :
9-30-20... ERAeSAND Oba eee S750 eB
POUR aba hak nue caca win ST.50 d
ees Ae Canenenn vee ST.50 q
EIR iaicla's SRLS Creda ST.50 4
ol Se ee S750 ‘
cco Oe CSS x bee S7.50 .
ae canes ST .50 4
Se eee ST.50 :
SS are ST.50
Deferred Maintenance,
% 7-20 I RNa ace hae 518 as 1,500.04
Ties.
O20 B.2402.......... 108.68) 12-20-19 Check..... ‘ 1,000.00
dt. SRRRSee G48.23 4-17-20 PN ea ete ue 1,988.38
$10-20 B.1521.......... JE aol ge, | J a re ee 1,721.48
3-10-20 B.1522.......... T6905
$20-30 B.1617.......... 45.45
ey at ae 1.554.538
(“2-20 B.1700.......... 121.50
W-14-20 B.1831.......... POO. 25
12-30-20 B.1850......... - 1,982.03
32 C, J. ERICKSON ET AL, VS. U. S. OF A, ET AL.
Fire Hazard--Log Brand “T.”
Denits. CREDITS.
—— any cer ES ——————
Date, Invoice number, Amount, — Date, Amount,
‘ 12-10-20 1. 8. 300......0.. 1,322.27
z Tee a ere 2,107.66
2 ee a ee 1,204.25
3 4-13-21 1. 8. S67. oc 500. 2387. 73
3 Aira cats cictiasnsns 24,661.65 DR iiiesas ctnenes 59,937.09
@ Credit Balance.......++5 35,275.55
: Recapitulation,
3 Denir. CREDIT,
Totals of Sheets Nos. 1 and 2.....0. eee eeeeeeees $116,750. 67 $24,795.77
: SM KH Phan, BS OPe Gr rvvvcsacccacssevcce 24,661 . 65 50,987.)
: $141,412.32 $84,732.97
PBIANGO: GOR ic.c sso eneccdoncndeskncrdnestunee $56,679.35
51 Indorsed: Filed in the United States Distriet Court, Wes:
ern District of Washington, Northern Division, Oct. 11, 1921
F. M. Harshberger, Clerk, by 8. FE. Leitch, Deputy.
32 In the United States District Court for the Western Distria
of Washington, Northern Division,
No. 6331,
Unirep States or AMERICA and Unrrep Srares Spruce Propve-
rion CorPoRATION, a Corporation, Plaintiffs,
Vs.
(. J. Ertexsoyx and Uxrrep Stares Fieviry axnp Guaranty Cow
pany, a Corporation, Defendants.
Motion of Defendants to Strike from Complaint.
Come now the defendants and move the court:
l.
3 That all of paragraph I of the complaint herein be stricken ups
5 the ground that the same is irrelevant and immaterial,
IT.
That all of paragraph I] beginning with the words “by the Direc
tor of Aireraft Production” in the third and fourth lines of said
paragraph, and continuing down to and including the words “te
Diseiimisictinwe: Bie Sip Biet tiets
FIA AA A LS ABR EIS NIN Ls DSA AB ba AEN hr bt SNM estado ci Seite Saas PS cicea rmas aaae Sa
C. J. ERICKSON ET AL. VS. U. 8. OF A, ET AL. 33
purposes hereinafter more fully set forth,” on line three of page two
of said complaint, be stricken upon the ground that the same is
irrelevant and immaterial.
III.
That all of paragraph III of said complaint be stricken upon the
ground that same is irrelevant and immaterial.
lV.
That all of paragraph 1V of said complaint be stricken upon the
ground that same is irrelevant and immaterial,
58 V.
That all of paragraph V of said complaint be strieken upon the
ground that same is irrelevant and immaterial.
VI.
That all of paragraph VI of said complaint be stricken upon the
ground that the same is irrelevant and immaterial.
VII.
That all of paragraph VII of said complaint be strieken upon the
ground that the same is irrelevant and immaterial.
VII.
That all of paragraph VIII of said complaint be stricken upon
the ground that the same is irrelevant and immaterial.
SHANK, FELT & FAIRBROOK,
Attorneys for Defendants.
Service of the within paper is hereby admitted this 2 day of Nov.
1921,
THOS. P. REVELLE,
Attorney for Plaintiff U.S.
Indorsed: Filed in the United States District Court, Western Dis-
fnct of Washington, Northern Division, Noy. 4, 1921. F.M. Harsh-
berger, Clerk, by S. FE. Leiteh, Deputy.
5—606
C. J. ERICKSON ET AL. VS. U. 8. OF A. ET AL.
United States District Court, Western District of Washing.
ton, Northern Division.
No. 6331.
Unitep States or AMERICA and UNITED STATES SPRUCE Propve.
7T10N Corporation, a Corporation, Plaintiffs,
z
i”
¥
!
¥
2
:
vs.
C. J. Ertcxson and Unitep States FIpeELity AND GUARANTY Cox.
pany, a Corporation, Defendants.
Order Denying Defendants’ Motion to Strike from Complaint,
Be it remembered, that this matter duly and regularly came on
for hearing before the above entitled court on November 21st, 1921,
the plaintiff being represented by Messrs. Carey & Kerr and the
United States Attorney, and the defendant being represented by
Messrs. Shank, Felt & Fairbrook, and the court having heard argu.
ments of counsel and being advised in the premises, all and singular,
now therefore,
It is hereby ordered and adjudged that the motion of the defend:
ants to strike from the complaint be and the same hereby is denied,
to all of which the defendants except and exception is allowed.
Done in open court this 30th day of November, 1921.
EDWARD E. CUSHMAN,
Judge.
O. K. as to form.
SHANK, BELT & FAIRBROOK,
Attys. for Defts.
Indorsed: Filed in the United States District Court, Westen
District of Washington, Northern Division, Noy. 30, 1921. F. M.
Harshberger, Clerk, by S. E. Leiteh, Deputy.
DDE ANN a BMA ABER hey Teh AANA SOND IEE NA NM DIBA hata
C, J. ERICKSON ET AL, VS. U. S. OF A. ET AL. 30
In the United States District Court for the Western District
of Washington, Northern Division.
No. 6331.
Unitep STATES OF AMERICA and UNITED States SpruCE Propuc-
TION CoRPORATION, a Corporation, Plaintiffs,
Vv.
(. J. Extckson and Unitep States Finevity & Guaranty Com-
PANY, a Corporation, Defendants.
Demurrer.
Come now the defendants and demur to the complaint herein
upon the ground that it appears upon the face thereof that the court
has no jurisdiction of the subject matter of the action.
SHANK, BELT & FAIRBROOK,
Attorneys for Defendants.
Service of the within paper is hereby admitted this 7 day of Dee.
1921.
THOS. P. REVELLE,
Attorney for U.S.
Indorsed: Filed in the United States District Court, Western Dis-
triet of Washington, Northern Division, Dee. 7, 1921. F. M. Harsh-
lerger, Clerk, by 8. E. Leiteh, Deputy.
% United States District Court, Western District of Washington,
Northern Division.
No. 6331.
Usirep Srates or Amertca and Untrep States Spruce Pro-
bUCTION CORPORATION, a Corporation, Plaintiffs,
Vs.
-(. J. Erickson and Unitep States Fineniry & Guaranty Com-
PANY, a Corporation, Defendants.
Order Overruling Demurrer.
Be it remembered that this matter came on duly and regularly
for argument this 19th day of December, 1921, plaintiffs being
represented by Thomas P, Revelle, United States Attorney for the
Western District of Washington, and John A. Frater, Assistant United
States Attorney for said district, the defendants by Messrs. Shank,
Belt & Fairbrook, and the Court being fully advised in the premises,
how, therefore,
* Fick ADA AS ARAN NOE SAA hint te Sai oan
Sis Sa Ba ed UIA RN ADEE lO Ne Tae ens steeds aS aber has
:
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x
i
4
Betas... Find
36 C, J. ERICKSON ET AL, Vs. U. S. OF A, ET AL,
It is hereby ordered and adjudged that the demurrer of the de.
fendants be, and the same hereby is, overruled.
Done in open court this 19th day of December, 1921,
EDWARD EF. CUSHMAN,
Judge.
Indorsed: Filed in the United States District Court, Western Dis.
trict of Washington, Northern Division, Dee. 19, 1921. F. ¥,
Harshberger, Clerk, By 8. E. Leiteh, Deputy.
~
1
-~J
In the District Court of the United States for the Westem
District of Washington, Northern Division,
a
No. 6331,
Unrrep Stares or AMERICA and UNITED STATES SPRUCE Ppo-
pUCTION CoRPORATION, a Corporation, Plaintiffs,
Vv.
C. J. Erickson and Untrep States Fipetiry and Guaranty Cox-
PANY, a Corporation, Defendants.
eLnswer,
Come now the defendants herein and for answer to the complaint—
I.
Admit that the plaintiff United States Spruce Production Corpo
ration is a corporation organized and existing under the laws of the
State of Washington as a corporation of that state, and that the de
fendant C. J. Erickson is a citizen of the State of Washington anda
resident of the Western District of Washington, Northern Division,
and that the defendant United States Fidelity and Guaranty Con:
pany is a corporation organized and existing under the laws of the
State of Maryland and a resident of that state, and that the amount in
dispute herein exceeds the sum of $3,000.00 exclusive of interest ant
costs, and deny each and every other allegation contained in parr
graph 1 of the said complaint, and deny particularly that this isa
suit arising under the constitution or any law of the Unitel
58 States or that the plaintiff United States Spruce Production
Corporation is organized under or pursuant to any Act of Cor
gress, and denies particularly that the United States of America has
any legal interest in the cause of action herein set forth, or is 4
necessary or proper party hereto.
Il,
Admit that the plaintiff United States Spruce Production Corpe-
ration was and now is a corporation created under the laws of the
state of Washington, and is duly licensed and authorized to transac
C. J. ERICKSON ET AL, VS, U.S. OF A. ET AL. oF
business in the state of Washington, and has in all respects complied
with the laws of the state of Washington entitling it to transact busi-
ness therein, and deny that they have any knowledge or information
sufficient to form a belief as to each and all of the allegations con-
tained in paragraph IT of said complaint, and therefore deny the
same.
ITI,
Deny that they have any knowledge or information sufticient to
form a belief as to each and all of the allegations contained in para-
graph V of said complaint, and therefore deny each and every
allegation therein contained,
IV.
Deny that they have any knowledge or information suflicient to
form a belief as to each and all of the allegations contained in para-
graph VI of said complaint, and therefore deny each every allegation
therein contained,
V.
Admit that the railroad mentioned and described in paragraph
VIL of said complaint was approximately 36 miles in length, be-
* ginning at a point of connection with the Seattle Port Angeles
a) and Western Branch of the Chicago, Milwaukee & St. Paul
Railway at Disque Junction in the county of Clallam, state
of Washington, and extending thence in a general westerly direction
fo a point at or near Lake Pleasant in said county, and that for
several miles of the route of the said railway line it was built upon the
public lands of the United States in the Olympic Forest Reserve, wn-
der the jurisdiction of the Department of Agriculture, Forestry
Service, with the approval of the Secretary of Agriculture, and deny
that they have any knowledge or information sufticient to form a
belief as to each and all of the other allegations contained in para-
graph VIL of said complaint, and therefore deny each and every of
suid allegations,
VI.
Admit that the provisions of an Act of Congress, approved July
"IMTS, are as alleged in paragraph VIIT of said complaint, and
deny that they have any knowledge or information sufficient to form
‘belief as to each and every of the other allegations contained in
suid paragraph of said complaint and therefore deny the same.
VIL.
Deny that they have any knowledge or information sufficient to
form a belief as to each and all of the allegation- contained in para-
graph IX of said complaint, and therefore deny each and every of
said allegations,
NAN DN ROASTER FLIP TEN OS a TANI AO LL ne Naat Dei Ri went "
38 C. J. ERICKSON ET AL, VS. U, 8. OF A. ET AL,
VILL.
Admit the execution of a contract with the defendant C, J,
Erickson, a copy of which is attached to the complaint, marked Ex.
hibit A, and admit that at the time of the execution of said con-
tract the plaintiff United States Spruce Production was in posses
sion of the said Spruce Production Railroad No, 1, and that
GO upon the right of way thereof were certain down or fallen
fir, spruce, cedar and hemlock logs, eut from timber originally
growing upon the right of way of the said railroad and then lying
along and adjacent to the said right of way, and deny that they
have any knowledge or information sufficient to form a belief as to
each and all of the other allegations contained in paragraph X of
said complaint, and therefore deny each and every of said allegations,
IX.
Admit all the allegations contained in paragraphs XI and XII
of the said complaint wherein the legal effect of the provisions of
the said contract are correctly set forth, but deny particularly that
the contract was in any way different from the contract, a copy of
which is attached to the complaint and marked Exhibit A, and
whatever allegations of paragraphs XI and XII allege a legal effec
different from that as set forth in the copy of said contract, such
allegations are hereby denied by these defendants.
Xx.
Admit that the defendant Erickson furnished the surety bond «
provided for in said contract, and that the defendant Erickson ev
tered upon the performance of the contract, and thereafter cut and
removed the part of the logs agreed by him to be purchased there
under, but deny each and every other wlegations contained in pare
graph XIII of said complaint, and deny particularly that the plain-
tiff corporation turned over the railroad to the defendant Ericksa
prior to April 1920, and deny particularly that the defendant Erick
con failed to comply with the terms of his contract, and deny par
ticularly that the plaintiff corporation complied with the terms ¢
the contract on its part.
61 XI,
Deny that the defendant Erickson has failed to make paymet
for freight as alleged in paragraph XIV of said contract.
XI.
Admit the execution and delivery of the contract attached to th
complaint and marked Exhibit B, as alleged in paragraph XVe
said complaint.
C. J. ERICKSON ET AL, VS. U.S. OF A. ET AL. 59
NII.
Admit all the allegations contained in paragraphs XVI, XVII,
XVIII, XIX, XX, NXT, NXT and NXNIIT of the said complaint
wherein the legal effect of the provisions of the said supplemental
contract are correctly set forth, but deny particularly that the said
contract was in any way different from the contract, a copy of
which is attached to the complaint and marked Exhibit B, and
whatever allegations of paragraphs XVI, XVII, XVIII, XIX, XX,
XXI, XXIT and NNITT allege a legal effect different from that as
set forth in the copy of said contract, such allegations are hereby
denied by these defendants.
AIV.
Deny that the said logs were scaled or measured or classified in ac-
cordance with the said contracts as alleged in paragraph XXIV of
suid complaint, and deny that the defendant Erickson failed, neg-
lected or refused to pay for all logs which he received, and deny that
the true purchase price of the right of way logs purchased by the
sid defendant Erickson and moved by him pursuant to the said eon-
tract was or should be greater than the sum of $25,365.53, and deny
that the total amount of prairie logs purchased by the said defend-
ant Erickson and received and moved by him pursuant to the said
contract and that the prices named therein were or ought
f2 to be any sum greater than $20,822.89, and deny that under
and pursuant to the said contracts the plaintiff corporation
performed train service for the defendant Erickson at the rates
in the said contract provided aggregating a sum greater than
$6,006.09, any deny that the location of the three miles of right of
way to be eleared and cleaned of debris and combustible matter
as required by the terms of said supplemental contract 8S. P. C.—
470 was ever determined or designated by the corporation as in the
sud supplemental contract required, or at all, and deny that any
written demand was ever made upon the said defendant Erickson
by the plaintiff corporation as therein provided, or at all, and deny
that the plaintiff corporation has suflered any special damage by
reason of any failure to clear and clean of debris and combustible
matter the said right of way as alleged in paragraph XXVI of said
complaint in the sum of $5,968.65, or in any sum whatever,
Ax
Admit that the defendant Erickson paid the sum of $6,946.21
tpon the right of way logs purehased and $17,849.56 upon the
prairie logs purchased, and admit that there were other dealings
vetween the plaintiff corporation and the said defendant Erickson,
both debit and credit, and that the defendant Erickson is entitled
to all the credits set forth in Exhibit D attached to the complaint
herein, and deny that the plaintil! corporation is entitled to charge
RRS MY Thay
=v
PST oe a, ree
SO OEE Ti A FE NERS Se OT NE Oe be
POR ee IN
aT
40 C. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
against the defendant Erickson, under the item Fire Hazard—Log
Brand “T”’ an amount greater than the sum of $2,828.76, and deny
that the plaintiff corporation is entitled to make any charge against
the said defendant Erickson for any of the items set forth in Exhibit
D as ear rental.
63 And for a further and aflirmative defense and counter.
claim, these defendants allege as follows:
I,
That the said plaintiff corporation and the defendant Erickson,
subsequent to the execution of the said contracts, entered into an
oral agreement whereby the items of rental for cars amounting to
$6,766.00 was to be applied upon the purchase price of the said cars,
but that the said plaintiff corporation subsequently refused to allow
the said application of rentals paid, and these defendants are on ac.
count thereof entitled to a credit in the sum of $6,766.00.
Il.
That the said plaintiff corporation failed to load the Fire Hazard
Logs upon cars to the specified minimum capacity of the cars, and
on account thereof the defendant Erickson sutfered a direct los
from excess freight paid in the aggregate sum of $345.37.
ILI.
That the plaintiff corporation lost logs in Lake Crescent that had
been purchased and charged against the defendant Erickson under
the said eontract to an amount of 14,000 feet and of a value of
$191.80, and the said defendant Erickson is entitled to a credit in
that amount.
lV.
That certain logs amounting in the aggregate to 125,000 feet were
dropped from the trains along the railroad right of way by the plain-
tiff corporation and were subsequently picked up and_ included
among the Fire Hazard Logs at a price of $13.70 per M, and
64 the said defendant Erickson is entitled to a credit on account
thereof in the sum of $1,712.50.
¥.
That the plaintiff corporation did not turn over that portion o
the track up to Mile 23 until November 1, 1919, and did not tum
over that portion of the track up to Lake Pleasant until the spring
of 1920, and on aecount of such failure, the said defendant Eric-
son was damaged in the sum of $5,000.00, and these defendants ar
entitled to a credit in the sum of $5,000.00 on account of such
damage.
- in As nS a nl bat REA ao ee Nae eee eR Sah Bi a —e
C. J. ERICKSON ET AL, VS. U, 8. OF A. ET AL. 41
Wherefore these defendants pray that they be dismissed hence
‘ith costs.
a SHANK, BELT & FAIRBROOK,
Attorneys for Defendants.
Unirep Staves or America,
State of Washington,
County of King, ss:
C. J. Erickson, being first duly sworn on oath deposes and says:
Iam plaintiff in the above entitled action and make this verification
for myself and on behalf of my co-plaintiff above named, being there-
unto duly authorized; I have read the foregoing answer, know the
contents thereof and believe the same to be true.
C. J. ERICKSON.
Subscribed and sworn to before me this 13th day of January,
1922.
{Notarial Seal. } FRANCES BURR,
Notary Public in and for the State of
Washington, residing at Seattle.
65 Service of the within paper is hereby admitted this 13 day
of Jan. 1922.
THOS. P. REVELLE,
Attorney for United States.
Indorsed: Filed in the United States District Court, Western Dis.
trict of Washington, Northern Division, Jan. 13, 1922. F. M. Harsh-
berger, Clerk, by S. E. Leitch, Deputy.
NYRR BET CAITR ORI
00 In the District Court of the United States for the Western
District of Washington, Northern Division.
No. 6331.
UNITED STATES OF AMERICA and Unrtep States Spruce Propvc-
TION CORPORATION, a Corporation, Plaintiffs,
Vs.
(J. Erteksox and Unirep States Pipenity AND GuARANTY Com-
PANY, a Corporation, Defendants.
Reply.
Come now the plaintiffs and for reply to the further and _affirma-
lve defense and counterclaim filed by the defendants herein, deny
and admit as follows:
6—606
BaD BAe he?
ERS. ee COON EE ee eee ety Pentel
Bic
42 C, J. ERICKSON ET AL, VS. U.S. OF A. ET AL.
3
Plaintiffs deny each and every allegation of paragraph I of sue)
further and affirmative defense and counterclaim.
II.
Plaintiffs deny each and every allegation of paragraph IT of such
further and affirmative defense and counter-claim.
III.
As to the allegations contained in paragraph III of such furthe
and affirmative defense and counterclaim, plaintiffs state that they
have no knowledge or information sufficient to form a belief, anj
therefore they deny each and every allegation contained in paragrap)
IV of such further and aflirmative defense and counterclaim.
67 IV.
As to the allegations of paragraph IV of such further and affirm.
tive defense and counterclaim, these plaintiffs admit that some log
were dropped from the trains along the railroad right of way by tl
plaintiff corporation, but deny that the quantity amounted to 125,(H)
feet, and except as above admitted, plaintiffs deny each and ever
allegation contained in paragraph IV of such further and affirm:
tive defense and counterclaim.
¥.
Plaintiffs deny each and every allegation of paragraph V of such
further and affirmative defense and counterclaim.
Wherefore, plaintiffs pray for judgment as in their complaint de
manded.
THOMAS P. REVELLE,
CAREY anp KERR,
Attorneys for Plaintiffs.
STATE OF OREGON,
County of Multnomah, ss:
I, Max Church, being first duly sworn depose and say that I au
Secretary of the United States Spruce Production Corporation, plait:
tiff within named; that I have read the foregoing reply and the san
is true as I verily believe.
MAX CHURCH.
Subscribed and sworn to before me, this 17th day of January, 19%
[ SEAL. ] G. C. FRISBIE,
Notary Public for Oregon.
My commission expires Aug. 4, 1924.
BND 66 initio aot binds sntmtetiiainemtiemtn ne ee ee
C. J. ERICKSON ET AL, VS. U. S. OF A, ET AL. 43
68 STaTeE or WasHINGTON,
County of King, ss:
Due service of the within reply is hereby accepted in King County,
Washington, this 18th day of January, 1922, by receiving a copy
thereof, duly certified to as such by Chas. H. Carey, of attorneys for
plaintiffs, :
SHANK, BELT & FAIRBROOK,
Attorney- for Defendant.
Indorsed: Filed in the United States District Court. Western Dis-
trict of Washington, Northern Division, Jan. 18, 1922. F. M.
Harshberger, Clerk, by S. E. Leitch, Deputy.
69 In the District Court of the United States for the Western Dis-
trict of Washington, Northern Division.
No. 6331.
Uxirep STATES OF AMERICA and UNITED States SPRUCE Propwuc-
TION CoRPORATION, a Corporation, Plaintiff-,
| Vs.
. 7 ~~ + |
C.J. Exickson and Unitep Srares Fipeviry anp GUARANTY ComM-
PANY, a Corporation, Defendants.
Verdict.
We, the jury in the above entitled cause, find for the plaintiffs the
United States of America and the United States Spruce Production
Corporation and against the defendants C. J. Erickson and the United
States Fidelity and Guaranty Company and fix the recovery of the
plaintiffs against the defendant C. J. Erickson at the sum of Forty
ive thousand seven hundred ten and 70/100 dollars ($45,710.70)
amd against defendant United States Fidelity and Guaranty Com-
jay at the sum of Twenty Thousand Dollars ($20,000),
O. R, F iBEL,
Foreman.
Indorsed: Filed in the United States District Court, Western Dis-
met of Washington, Northern Division, May 12, 1922. F. M.
Harshberger, Clerk, by S. E. Leitch, Deputy.
Baterinitcrrnsis. he wrk
44 C. J. ERICKSON ET AL, VS. U. S. OF A. ET AL.
70 In the District Court of the United States for the Western Dis
trict of Washington, Northern Division.
No. 6331.
Unirep States oF AMERICA and UNITED States SprvucE Propvc.
TION CORPORATION, a Corporation, Plaintiffs,
Vs.
C. J. Ertckson and Unitep States Fipetity axp GUARANTY Cox.
PANY, a Corporation, Defendants.
Judgment Order.
This cause heretofore came on for trial, the United States o
America appearing by John A. Frater, Assistant United States At
torney, and the United States Spruce Production Corporation appea-
ing by Omar C. Spencer, one of its attorneys, and the defendant
appearing by Corwin S. Shank, H. C. Belt and Wm. E. McClure, and
a jury of twelve men having been regularly impaneled and sworn ty
try the cause, and the jury having heard the evidence offered by the
parties, the argument of counsel and instructions of the court ani
having returned into court a verdict on May 12, 1922, in favor of
plaintiffs and against C. J. Erickson in the sum of $45,710.70 and
against the defendant United States Fidelity and Guaranty Company
in the sum of $20,000.00, and the said verdict having been filed
herein,
Now, therefore, upon application made by the counsel representing
the plaintiffs for a judgment based upon the verdict, it appearing
from the records and files herein that the defendant United State
Fidelity and Guaranty Company is sued herein as surety for the de-
fendant C. J. Erickson, the court being fully advised, it is by the
court
71 Ordered, considered and adjudged that the plaintiffs have
and recover judgment of and from the defendant C. J. Erick-
son in the sum of $45,710.70, and against the defendant United
States Fidelity and Guaranty Company in the sum of $20,000.00,
and against each of said defendants for the plaintiff's costs and dis
bursements incurred in this action amounting to the sum of $274.4;
that said judgments against the defendants C. J. Erickson and the
United States Fidelity and Guaranty Company are not cumulative
and the court hereby orders and directs that in case execution issue
hereon said execution shall be levied, first upon the property of the
defendant C. J. Erickson, and that the property of the said C.J
Erickson shall be first exhausted before any levy be made upon thi
property of the defendant United States Fidelity and Guaranty
Company.
It is further ordered, considered and adjudged that in case the
defendant the United States Fidelity and Guaranty Company shall
be compelled to pay the said judgment against it, or any part thereof,
C. J. ERICKSON ET AL. VS. U. S. OF A. ET AL. 45
the said defendant United States Fidelity & Guaranty Company,
after the satisfaction in full of the judgment against the defendant
(. J. Erickson, shall be subrogated to all the rights of the plaintiffs
herein against the defendant C. J. Erickson and shall have execution
for such portion of said judgment as it, the said defendant United
States Fidelity and Guaranty Company, shall be required and com-
pelled to pay because of said judgment.
Dated this 26th day of May, A. D. 1922,
EDWARD E. CUSHMAN,
District Judge.
0. K. — form.
McCLURE & McCLURE.
SHANK, BELT & FAIRBROOK.
72 Indorsed: Filed in the United States District Court, West-
ern District of Washington, Northern Division, May 26, 1922.
F. M. Harshberger, Clerk, by S. E. Leiteh, Deputy.
73 In the District Court of the United States for the Western
District of Washington, Northern Division.
No. 6331.
Usitep States or AMERICA and Unitep States Spruce Propre-
TION COPORATION, a Corporation, Plaintiffs and Defendants jn
Error,
Vs.
C.J. Extckson and Unrrep Starrs FIDELITY AND GUARANTY Com-
PANY, a Corporation, Defendants and Plaintiffs in Error.
Petition for Writ of Error.
And now come C. J. Erickson and United States Fidelity and
(waranty Company, a corporation, the defendants herein, and say
that on or about the 26th day of May, 1922, the said district court
entered a judgment herein in favor of the said defendants in error,
plaintiffs in said cause, United States of America and United States
Spruce Production Corporation, a corporation, and against these
‘Plaintiffs in error, defendants in said district court, in which judg-
‘Ment and the proceedings had prior thereto in this cause certain
(“Tors were committed to the prejudice of these plaintiffs in error or
lefendants in said district court, all of which more in detail appear
from the assignment of errors Which is filed with this petition.
_ Wherefore, these plaintiffs in error pray that a writ of error may
sue in this behalf out of the Supreme Court of the United States
for the correction of errors so complained of and that a transcript of
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46 Cc. J. ERICKSON ET AL. VS. U. S. OF A. ET AL.
the record proceedings and papers in this cause duly authenti-
7A cated may be sent to the Supreme Court of the United States,
SHANK. BELT & FATRBROOK,
Attorneys for Plaintiff in Error, C. J. Erickson.
McCLURE & McCLURE,
Attorneys for Plaintiff in Error, United
States Fidelity and Guaranty Company.
Indorsed: Filed in the United States District Court, Western Dis
trict of Washington, Northern Division, Aug. 14, 1922. F.
Harsh»erger, Clerk, by S. E. Leitch, Deputy.
7) In the District Court of the United States for the Westem
District of Washington, Northern Division.
No. 6331.
Unitep States or AMERICA and UNITED STATES SPRUCE Proopvte-
TION CorPoRATION, a Corporation, Plaintiffs,
vs.
C. J. ErtcKsox and Unirep States FipeLiry aNp GUARANTY Covw-
PANY, a Corporation, Defendants.
Assignment of Errors.
The defendants in this action in connection with their petition
for a writ of error make the following assignment of errors, whieh
they aver exist:
e
The court erred in denying the motion of defendants to strike from
the complaint.
Il.
The court erred in overruling the demurrer of the defendants.
HIT.
The court erred in assuming jurisdiction of the said eause.
IV.
The court erred in entering judgment in favor of the plaintiff
and against the defendants for the reason that the said court we
without any jurisdiction whatsoever to enter any such judgment.
Wherefore, the defendants pray that said judgment be reversed.
SHANK, BELT & FAIRBROOK,
Attorneys for Defendant C. J. Erickson.
McCLURE & McCLURE,
Attorneys for Defendant United States
Fidelity & Guaranty Company.
RN ah I, an elt io al ae o> DOM Wh Sa
C. J. ERICKSON ET AL. VS. U. S. OF A. ET AL. 47
Indorsed: Filed in the United States District Court, West-
ern District of Washington, Northern Division, Aug. 14,
1922. F. M. Harshberger, Clerk, by 8. E. Leitch, Deputy.
7 In the District Court of the United States for the Western
District of Washington, Northern Division.
No, 6331.
Usitep States or AMerica and Unrrep Srates Sprece Propve-
TION CoRPORATION, a Corporation, Plaintiffs,
V8.
(. J, Ertrexson and Unirep Srares Fineriry axp Guaranty Com-
PANY, a Corporation, Defendants,
Order Allowing Writ of Error.
This 14th day of August, 1922, come the defendants by their at-
torneys and file herein and present to the court their petition praying
for the allowance of a writ of error and an assignment of errors in-
tended to be urged by them praying also that a transcript of the ree-
ord, proceedings and papers upon which the judgment herein was
rendered, duly authenticated, may be sent to the Supreme Court of
the United States, and that such other and further proceedings may
be had as are proper in the premises.
On consideration whereof the court does allow the writ of error
upon the defendants giving bond according to law in the sum of
$500.00/100,
EDWARD E. CUSHMAN,
Judge.
Indorsed: Filed in the United States District Court, Western
District of Washington, Northern Division, Aug 14, 1922. F. M.
Harshberger, Clerk, by 8S. E. Leitch, Deputy.
18 #6331,
Know all men my these presents, that we, C. J. Erickson and
United States Fidelity and Guaranty Company, a corporation, as
principals and The Aetna Casualty and Surety Company as surety
are held and firmly bound unto United States of America and
United States Spruce Production Corporation, a corporation, in the
full and just sum of $500.00, 100 to be paid to the said United States
of America and United States Spruce Production Corporation for
which payment well and truly to be made we bind ourselves, our
heirs, suecessors and personal representitives jointly and severally
by these presents.
Sealed with our seals and dated this 9th day of August in the
year of our Lord one thousand nine hundred and twenty two,
Ne ee ee a ae ns ee ee ee :
48 Cc. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
Whereas, lately at a District Court of the United States in and
for the Western Distriet of Washington, Northern Division, in 4
suit pending in said court between United States of America and
the United States Spruce Production Corporation, a corporation,
plaintiffs, and C. J. Erickson and United States Fidelity and Guar.
anty Company, a corporation, defendants, a judgment was rendered
against the said C. J. Erickson and United States Fidelity and
Guaranty Company, a corporation, and the said C. J, Erickson and
United States Fidelity and Guaranty Company, a corporation, hav-
ing obtained a writ of error and filed a copy thereof in the clerk’
office of said court to reverse the judgment in the aforesaid suit,
a and a citation directed to the said United States of America and
: United States Spruce Production Corporation, a corporation, citing
ES and admonishing them to be and appear at a session of the Su
‘i preme Court of the United States to be holden at the City of Wash-
ington, on the 13th day of October next.
Now the condition of the above obligation is such that if the
said C. J. Erickson and United States Fidelity and Guaranty
4 79 Company, a corporation, shall prosecute said writ of error to
: effect, and answer all costs if they fail to make their plea
good, then the above obligation to be void; else to remain in full
foree and virtue.
C.J. ERICKSON.
[Corporate Seal. | UNITED STATES FIDELITY &
GUARANTY COMPANY,
By JOHN C. McCOLLISTER,
Attorney in Fact.
[Corporate Seal. ] THE TNA CASUALTY AND
SURETY COMPANY,
By A. R. CLOSE,
lis Resident Vice President.
Attest:
CHAS. M. DIAL,
Its Resident Assistant Secy.
Approved by
EDWARD E. CUSHMAN,
Judge of said District Court,
Indorsed: Filed in the United States District Court, Western Dis
trict of Washington, Northern Division, Aug. 14, 1922. F. M. Harsh
berger, Clerk, by S. FE. Leiteh, Deputy.
CRM ON kPa AMAT Fo tS ESE eG SOM oe
|
C. J. ERICKSON ET AL. VS. U. 8. OF A. ET AL. 49
In the District Court of the United States for the Western
District of Washington, Northern Division.
No, 6331.
zs
—]
TION CorPoRATION, a Corporation, Plaintiffs,
Vs.
¢. J. Errexson and Unirep States Fiperity anp Guaranty Com-
PANY, a Corporation, Defendants,
Certificate.
In this cause I hereby certify that in the proceedings had in this
court in the above entitled cause wherein United States of America
and United States Spruce Production Corporation, a corporation,
where plaintiffs, and C. J. Erickson and United States Fidelity and
Guaranty Company, a corporation, were defendants, a question of
the jurisdiction of this court arose in the following manner, to-wit:
The cause of action sued on herein was the breach of a contract
entered into between the plaintiff, United States Spruce Production
Corporation, and the said defendant ©. J. Erickson. The jurisdie-
tion of this court depended upon the facts as alleged in the bill of
complaint and proven at the trial of the case as follows, to-wit:
The plaintiff, United States Spruce Production Corporation is a
corporation organized under the laws of the state of Washington as
-acorporation of that state. The defendant C.J. Erickson is a citizen
of the state of Washington and a resident of the Western District of
Washington, Northern Division. The defendant United States Fi-
delity and Guaranty Company is a corporation organized under
the laws of the state of Maryland and a eitizen of that state.
The matter in dispute herein exceeds the sum of $3,000.00
in amount exclusive of interest and costs. The United States
of America joined as plaintiff to protect its interests.
During the times herein mentioned the plaintiff, United States
Spruce Production Corporation, was and now is a corporation created
under the laws of the siate of Washington by the Director of Aireraft
Production under and pursuant to the act of Congress of July 9,
1918, amending the Act of April 11, 1918 (U.S. Compiled Statutes
1919, Compact Edition, Appendix page 1771), for the purposes here-
inafter more fully set forth, and was duly licensed and authorized to
transact business in the State of Washington and had in all respects
complied with the laws of that state entitling it to transact business
therein.
Under and pursuant to certain Acts of Congress, particularly the
Act of June 3, 1916 (Chap. 154, 39 Statutes 166 at page 213) See.
120), the Act of Congress of March 4, 1917 (Chap. 180, 39 Statutes
1192), and the Act of Congress of July 24, 1917 (Chap. 40, 39 Stat.
7—606
Unirep Statres or AMERICA and Unirep States Spruce Propvc-
.
.
‘1
PELE DOE EPRI E eR LE PE ALTE
as Ne a Nga SiR
Mibinal Cant
SPR CNS ENB ALO " -
50 C. J. ERICKSON FT AL, VS. U.S. OF A. ET AL,
page 243, Sec, 9), and other enactments, the President of the United
States authorized the purchase and acquisition of spruce and fir
lumber, among other commodities, as war material, and authorized
the construction of aireraft for use in the navy and in the army of
the United States within the amount of appropriations and in com:
pliance with the terms of said Acts. Through the War Department
and under the direction of the Chief Signal Officers of the United
States Army plans were made for the production of such war ma
terial, including the building of the railroad hereinafter mentioned.
By the above mentioned Act approved July 24, 1917 authority
was given to the President acting through the War Depart.
82 ment during the existing emergency occasioned by the stat:
of war between the United States and the Central Europea:
powers for the purchase, manufacture, maintenance, repair and
operation of airships and other acrial machines, including the acqu:
sition and development of plans, factories, and establishments for
the manufacture of airplanes, aircraft, machines and appurtenances,
the purchase of raw and semi-finished materials therefor, and of al
other things necessary for creating and extending the production ¢
airplanes, aircraft, engines, and all other appurtenances, and th
sum of $640,000,000.00 was appropriated for the purpose of carn
ing on the said operations re to put said Act into effect. Unde
the provisions of the Act of Congress approved March 4, 117 (Se
tions 3115 1/16a, 3115 1/16d, 8115 1/16e and 8115 1/16d, U.S
Compiled Stat., Compact Ed.), the President was authorized and en:
powered, within the limit of funds appropriated therefor, to requis:
tion for the use of the government during the war emergency we
materials and plants for the production of war materials, which in:
eluded arms, armament, ammunition, stores, supplies and equi}:
ment for ships and airplanes and everything required for or in con
nection with the production thereof, and was authorized to exercs
the power and authority so vested in him and to expend the mone)
appropriated by means of and through such ageney or agencies &
he might determine upon from time to time. By the Act of Congres
approved April 11, 1918, as amended by the Act of Congress a
proved July 9, 1918, the Secretary of War was authorized to acquir
by condemnation lands and interests in lands for military purpose
including standing or fallen timber, sawmills, camps, machinery
logging roads, rights of way, equipment, materials and supplie
and any works, property or appliances suitable for the &
&3 fectual production of such lumber and timber productiot
The said last mentioned act further provided that when the
owners of such land, interest and rights appurtenant thereto shoul.
fix a price for the same which in the opinion of the Secretary «
War would be reasonable he might purchase or enter into a contre
for the use of the same at such price without further delay.
Accordingly, the government of the United States in the the
existing war emergency, under the direction of the President a
Secretary of War, being in need of spruce, tir and other Lumber f
the manufacture and production of such war material, especial!
aireraft, and in order to facilitate the production of such luni
alent a
C, J. ERICKSON ET AL, VS. U.S. OF A. ET AL, ol
products, undertook the construction of certain logging railroads in
the states of Washington and Oregon for the transportation of such
lumber products as would be required in the manufacture of aircraft
and for other purposes. These operations were originally begun by
the Signal Corps, Aviation Section of the United States Army, and
later by the Bureau of Aireraft Production, Spruce Production Di-
vision of the United States War Department, these being the agencies
through which the powers vested in the President of the United
States and the Secretary of War under the foregoing Acts of Con-
gress were exercised, Among other logging railroads so constructed
was the logging railroad hereinafter described, known as —
Production Railroad No. 1, in Clullam County, in the State of Wash-
ington,
For the purposes aforesaid and under said Acts of Congress, the
United States, acting through the Signal Corps of the United States
Army, entered into a contract with contractors for the construction
of the railroad hereinafter described, and for the acquisition
St of rights of way therefor. Nearly all of the right of way and
lands aequired for that railroad were acquired through such
contractors who also performed the work, or nearly all of the work, of
constructing said logging railroad. Afterwards, however, and prior
to the signing of the Armistice in the war already mentioned, all of
these properties were transferred to the United States Spruce Pro-
duction Corporation, and additional rights of way were acquired by
that corporation, and additional work upon the said railway line
was done by that corporation. "The said railroad was constructed
upon a route located and designated by the United States govern-
ment and the said railway line, with its rights of way and appur-
tenanees, as built and constructed, was built for and acquired by
and became the property of the United States, although the title
thereto was transferred to the plaintiff corporation and still is carried
in the name of the United States Spruce Production Corporation for
convenience.
At the time of the Armistice the work of getting out the war
material above mentioned was mostly suspended by the government,
but some operations necessarily continued for a period of months
after that date. The United States Spruce Production Railroad No.
Iwas then nearly completed and some work was thereafter done by
the Cnited States Spruce Production Corporation, plaintiff, under the
direction of the War Department to put it in operating condition.
This railroad was approximately thirty-six miles in length, begin-
hing ata point of connection with Seattle, Port Angeles and Western
Branch of the Chicago, Milwaukee and St. Paul Railway at Disque
Junction in the County of Clallam, state of Washington, and extend-
ing thence in a general westerly direction to a point at or
> near Lake Pleasant in said county. For several miles of the
route of the said railway line it was built upon the public
lands of the United States in the Olympic Forest Reserve, under the
Nisdiction of the Department of Agriculture, Forestry Service, with
the approval of the Secretary of Agriculture. Under the terms and
conditions of the permit authorizing the construction thereof upon
A AT RCN AAA RIN ROBE EEN IRA A hy I EEE AA RTA INSE, lk
52 C. J. ERICKSON ET AL, Vs. U. S. OF A. ET AL,
such last mentioned lands it was necessary to comply with certain
requirements as to clearing the right of way of the railroad of logs,
brush and debris causing fire hazard for the necessary protection of
the forests in the said reserve and the timber privately owned in the
vicinity of the said railroad.
By the provisions of the Act of Congress approved July 9, 1918,
the Director of Aireraft Production of the United States Gover.
ment was authorized, whenever in his judgment it would facilitate
the production of aircraft, aircraft equipment or material therefor,
for the United States and the governments allied with it in the
ys prosecution of the war, to form under the laws of the District of
Columbia, or under the laws of any state, one or more corporations
for the purchase, production, manufacture and sale of aircraft, air
craft equipment or material therefor, and to build and operate rail:
roads in connection therewith; said Director being further author
ized to acquire on behalf of the United States the capital stock and
securities of any corporation so formed by him. ‘The provisions
of that Act further authorized the Seeretary of War, acting throng)
the Director of Aircraft Production, to transfer by appropriate in-
struments to any such corporation as might be formed thereunder
any interest of the United States in any existing contracts for air
craft, aireraft equipment, or materials therefor, and the tith
86 in land, railroads, or equipment used in or in connection
with the production of aircraft, aireraft equipment or me
terials therefor, on such terms as the Secretary of War, acting
through the Director of Aircraft Production, should deem fit. Par
suant to the authority of that Act of Congress the Director of Air
craft Production caused to be formed under the laws of the state of
Washington the plaintiff corporation, known as United States Sprue
Production Corporation.
The incorporators of the said corporation were ollicers of the
United States Army and in so incorporating they acted for and in
behalf of the United States of America. All of the shares of the
corporation, except qualifying shares, were subseribed by the Director
ot Aircraft Production. All of the capital used by the corporation
in 1s Operations was furnished by the United States Government,
The qualifying shares were taken in the name of the trustees of
the corporation, who from time to time have held one share each ty
qualify them to serve in that capicity, but none of the said trustee
has any interest in the corporation, and each of the trustees holds
the share of stock standing in his name solely as representative
and for the use and benefit of the United States. Each of the tri
tees has in writing assigned to the Secretary of War, for the beneli
of the United States, any and all moneys, profits or dividends thet
might acerue upon the stock held by him, and each has certified tha
the share of stock standing in his name was issued solely for th
purpose of qualifying him as trustee of the corporation, No divi
dends are payable to or have been paid to the stockholders, and the
trustees have received no compensation except for services rendere!
otherwise than as trustees, Some time after organization, on the
D cantsexsvea:
nel idipa ie CALS BASILE BN aE ND NTA TATA Re BEAL RUS ile CS Bed Sibnd rupee ser
BO teed tt Seda
C. J. ERICKSOY T AL. VS. U.S. OF A. ET AL. 68
advice of the Director of Aircraft Production, the articles
$i of incorporation were so amended as to confine the powers
thereof to those mentioned in the foregoing Act of Congress
of July 9, 1918, Chapter 16, entitled, “An Act Making Appropria-
tions for the Support of the Army,” ete. and upon the advice of the
Director of Aircraft Production, the by-laws of the corporation
were so amended that the trustees were made removable by a major-
ity of the outstanding shares, so that, as the government has all but
the qualifying shares, the several trustees are removable by the
government at will. At all times since the organization of the
corporation the president thereof has been an oflicer of the United
States Army, and during its activities nearly all of the otlicers and
agents were oflicers of the United States Army, or enlisted men
thereof. Two of the four trustees are at present oflicers of the
United States Army, specially assigned to such duty. Nearly all
of the men emploved in the building of the railroad were of the
United States Army, and all acts of the trustees, the oflicers and
agents of the corporation, have at all times been performed under
the direction of and in accordance with the instructions of the
Secretary of War or the Chief of Air Service, or the Director of Air-
craft Production. The work undertaken by the corporation, as
herein described was planned by the Director of Aircraft) Produe-
tion, who reported the same to the Secretary of War, who gave his
approval thereof, and after the organization of the corporation as
herein described there was transferred to the corporation by the said
oflicers all contracts between the United States and others for the
production of such war material and for the construction of the
railroad, and the property has ever since been held under their
direction pursuant to the said Acts of Congress, and said corporation
is an ageney, arm, or instrumentality of the United States,
SS and upon liquidation of its assets, pursuant to the terms of
the said Acts of Congress, all of the proceeds thereof will
be paid into the treasury of the United States and no one will receive
any profit or dividend therefrom. The said corporation is not en-
gaged in commercial business, nor has it ever engaged in any other
business save as herein stated. No person, firm, or individual has
any interest, right, title or estate in or to any shares of stock of
that corporation, or in or to any property owned or held by that
wrporation, and all of its funetions as a corporation are earried out
inthe manner described for war purposes of the United States.
After the Armistice the corporation remained in the possession
of said Spruce Production Railroad No, 1, and upon the right of
way thereof were certain down or fallen fir, spruce, cedar and hem-
lock logs, ent from timber originally growing upon the right of wav
of the said railroad and then lying along and adjacent to the said
right of way, and the plaintiffs were desirous of selling and dispos-
ing of said logs to the defendant Erickson and were willing to allow
the said defendant the privilege of operating the said railroad for
the purpose of picking up and hauling the said logs to the defend-
ant’s sawmill, which the defendant owned, near Port Angeles,
a
=
EMERN PEERAGE
i inal lg Staite TEBE ot AIRE Gotca
6
te ev
1S Ew
hehe 5b pS peOR TAS Mid,
Be, dN ees pe a LOD oe Pant SN
EG ee ee
en aed. 25S OTSA RANT SU IRN OA late Am ck HO 2
oe Kade ay
ol Cc. J. ERICKSON ET AL. VS. U.S. OF A. ET AL.
Clallam County, Washington. Thereupon and on or about the 21s
day of April, 1919, the plaintiff corporation, the United States Spruce
Production Corporation, entered into a contract with C. J. Erick.
son for the sale of certain of said logs and the transportation thereof
upon the said railroad, and thereafter entered into various othe
supplemental contracts and agreements, the alleged breach of whic)
formed the basis of the above entitled action.
89 The defendant United States Fidelity and Guaranty Com.
pany was made a party defendant for the reason that it hai
given a bond in the sum of $20,000.00 to secure the faithful per
formance of the said contract by the said defendant C. J. Erickson.
Thereafter the defendants appeared and moved to strike from th
bill of complaint all of the allegations above set forth which con
nected or tended to connect the United States of America with th
cause of action upon the ground that the same were irrelevant an/
immaterial, which motion was by the court denied, to which actin
of the court the defendants duly excepted. |
Thereafter the defendants appeared and demurred to the complain
upon the ground that the court was without jurisdiction, which de
murrer Was by the court overruled, to which action of the court th:
defendants duly excepted, and upon both the hearing upon the sail
motion to strike and upon the demurrer the defendants raised the
question of the jurisdiction of this court as a federal court to hew
and determine the said cause and asserted that the United States o
America was neither a necessary nor proper party to the said action,
and that therefore the said cause of action being solely a cause o!
action founded on contract between a corporation organized unde
the laws of the state of Washington on the one part and a citizen
and resident of the state of Washington on the other part the sail
court Was without jurisdiction to hear and determine the same, bu
this court in consideration of the allegations and facts aforesaid wa
of the opinion that it had jurisdiction to hear and determine thi
case,
This certificate is made conformably to Act of Congress
ow March 3, 1891, Chapter 517,
Dated this 21st day of August, A. D. 1922.
EDWARD FE. CUSHMAN,
Judge of the District Court of the United
States for the Western District of Wash-
ington, Northern Division.
O. K.
XAREY & KERR,
OMAR C. SPENCER,
Of Attorneys for Plaintut.
Indorsed: Filed in the United States District Court, Western Dis
trict of Washington, Northern Division, Aug. 21, 1922. F.
Harshberger, Clerk.
PEA SR, EES a MEINE SE RIE Act IIS Ec WOON 0 Kadai as Se mee tf, Zi
C. J. ERICKSON ET AL. VS. U, 8. OF A. ET AL. vv
91 In the District Court of the United States for the Western Dis-
trict of Washington, Northern Division.
No. 6331,
UnITED STATEs OF AMERICA and UNirep States Spruce Propuc-
TION CoRPORATION, a Corporation, Plaintiffs,
Vv.
C. J. ErtcKson and Unirep Stares Fineniry axp Guaranty Com-
PANY, a Corporation, Defendants.
Preeipe.
To F. M. Harshberger,
Clerk of said court:
Will you kindly include in your return to the writ of error herein
copies of the following, to-wit:
Complaint.
Motion of defendants to strike from complaint.
Order denying defendants’ motion to strike.
Demurrer.
Order overruling demurrer.
Answer.
Reply.
Verdict.
Judgment,
Petition for writ of error,
Assignment of errors.
Order allowing writ of error,
Bond upon writ of error.
Writ of error.
Citation.
Certificate of Judge.
Respectfully,
SHANK, BELT & FAIRBROOK,
-ltlorneys for C.J. Erickson.
MeCLURE & McCLURE,
Attorneys for United States
Fidelity and Guaranty Company.
Service of the within paper is hereby admitted this 17 day
of August, 1922.
CAREY & KERR,
OMAR C. SPENCER,
THOS. PL REVELLE,
Attorneys for Plaintiffs.
Tndorsed : Filed in the United States District Court, Western Dis-
net of Washington, Northern Division, Aug. 21, 1922. F. M.
Harshberger, Clerk.
Usessanbicked cg SPP ase Dae aA ae ed SCO
Re ©
RR with sarla Hie DGS
ROS D teh
f
4
2
56 C. J. ERICKSON ET AL. VS. U. 8. OF A. ET AL.
93 United States District Court, Western District of Washington,
Northern Division.
No. 6331.
Unrrep Srares or AMERICA and Unitep Srares SPRUCE Propvte.
TION CORPORATION, a Corporation, Plaintiffs,
Vs.
C. J. Erickson and Unrrep Starrs Fiperiry aNp GuARANTY Cox.
pany, a Corporation, Defendants.
Certificate of Clerk U.S. District Court to Transcript of Record.
Unirep States OF AMERICA,
Western District of Washington, ss:
I, F. M. Harshberger, Clerk of the United States District Court fo
the Western District of Washington, do hereby-certify this typewnt
ten transcript of record consisting of pages numbered from 1 to 9%,
inclusive, to be a full, true, correct and complete copy of so much ¢
the record, papers, and other proceedings in the above and foregoing
entitled cause, as is required by precipe of counsel filed and show
herein, as the same remain of record and on file in the office of the
Clerk of said District Court, and that the same constitute the recor
on return to writ of error herein, from the judgment of said Unite
States District Court for the Western District of Washington, to the
Supreme Court of the United States.
I further certify the following to be a full, true and correct state
ment of all expenses and costs incurred and paid in my office by &
on behalf of the plaintiff in error for making record, certificate or te
turn to the Supreme Court of the United States in the above entitled
cause, to wit:
94 Clerk's fees, (See. 828, R. 8. U.S.) for making record,
certificate or return, 226 folios at loe...........- $33.4
Certificate of Clerk to transcript of record, 4 folios at I5e.... fi
unk Sb. Ghi COPEIRONEO. cise ee eek Senne es ce eeesesens
oN ap TE sie oA a ee Dee a a ee $34.71
I hereby certify that the above cost for preparing and certifying
record, amounting to $34.70, has been paid to me by attorney fe
Plaintiff in Error,
I further certify that I hereto attach and herewith transmit the
original writ of error and the original citation issued in this caus
POA LNs cheb 28? fod ear Nia SIM et TERR Rae Sige eed OO Ne Shed eens AEs big ~~ Pala at
~
C, J. ERICKSON ET AL, VS. U, $. OF A, ET AL. o7
In witness whereof, I have hereunto set my hand and aflixed the
seal of said District Court at Seattle, in said District, this 12th day
of September, 1922,
[Seal of the United States District Court, Western District. of
Washington. |
I. M. HARSHBERGER,
Clerk United States District Court,
Western District of Washington.
45 UNITED STATES OF AMERICA, ss:
The President of the United States of America to the Judges of the
District Court of the United States for the Western District of
Washington, Northern Division, Cireeting:
Because of the records and proceedings and also in the rendition
of the judgment of a plea whieh is in said district court before you
etween United States of America and the United States Spruce
Production Corporation, a corporation, plaintiffs, and C. J. Eriekson
and United States Fidelity and Guaranty Company, a corporation,
defendants, a manifest error has happened to the great damage of
the said C. J. Erickson and United States Fidelity and Guaranty
Company, & corporation as by their complaint appears. We being
willing that the error, if any has been, should be duly corrected,
and full amd speedy justice done to the parties aforesaid, in this be-
half, do command vou that if judgment be therein given that under
your seal clistinetly and openly you send the record and proceedings
a aforesaid, with all things concerning the same, to the Supreme
Court of the United States, together with this writ. so that you may
have the same at the city of Washington on the 13th day of October
next in the said supreme court, to be then and there held; that the
reord and proceedings aforesaid being inspected, the said supreme
court may cause further to be done to correct that error, what of
nght, and according to the laws and customs of the United States,
should be done.
Witness the Honorable William II, Taft, Chief Justice of the
United States, the 14th day of August, in the year of our Lord one
thousand mine hundred and twenty-two and of. the independence
ifthe United States of America the one hundred and forty-eighth.
[Seal of the United States District Court, Western District of
Washington. ]
I. M. HARSHBERGER,
Clerk of the District Court of the United States
for the Western District of Washington.
Allowed by
EDWARD E. CUSHMAN,
Mstrict Judge.
"14 [Endorsed:] No, 6331. United States District Court for
the Western District of Washington, Northern Division.
8—606
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:
d
08 C. J. ERICKSON ET AL, VS. U.S. OF A. ET AL.
United States of America and United States Spruce Production Cop
poration, a corporation, Plaintiffs, vs. C. J. Erickson, Defendants
Writ of Error. Filed in the United States District Court, Weste
District of Washington, Northern Division. Aug. 14,1922. F.
Harshberger, Clerk, by 8. E. Leitch, Deputy. Corwin 8. Shan
H. C. Belt, Glenn J. Fairbrook, Attorneys for C. J. Erickson, Alashy
Building, Seattle.
96 & 97 Unrrep STaTes OF AMERICA, 48:
To United States of America and the United States Spruce Prody
tion Corporation, a corporation, Greeting:
You are hereby cited and admonished to be and appear at thé
Supreme Court of the United States to be holden at the City d
Washington, on the 13th day of October next, pursuant toa writ
error filed in the elerk’s oftice of the District Court of the Unite
States for the Western District of Washington, Northern Divisio
wherein C. J. Erickson and United States Fidelity and Guarani
Company, a corporation, are plaintiffs in error and you are defeni
ants in error, to show cause if any there be why the judgment
dered against the said plaintiffs in error as in the said writ of e
mentioned should not be corrected and speedy justice be done
the parties in that behalf.
Given under my hand at the City of Seattle in the district abo
named this 14th day of August, in the year of our Lord one the
sand nine hundred twenty-two.
[Seal of the United States District, Court, Western District
Washington. |
EDWARD E. CUSHMAN,
Judge of the District Court of the U nited
States for the Western District of
Washington, Northern Division.
98 [ Endorsed:] No. 6331. United States District Court f
the Western District of Washington, Northern Divisie
United States of America and United States Spruce Production
poration, a corporation, Plaintiffs, vs. C. J. Erickson, et al., Defer
ants. Citation. Filed in the United States District Court, Weste
District of Washington, Northern Division. Aug. 14, 1922.
M. Harshberger, Clerk, by 8. E. Leitch, Deputy. Corwin 8, Sha
H.C. Belt, Glenn J. Fairbrook, Attorneys for C. J. Erickson, Ak
Building, Seattle. Service of the within paper is hereby admit
this 17 day of Aug., 1922. Carey, Kerr, Omar C, Spencer, Atto
for Thos. P. Revelle, Plaintiff.
Endorsed on cover: File No. 29,156. W. Washington, D.C. U.
Term No. 606. C. J. Erickson and United States Fidelity ¢
Guaranty Company, plaintiffs in error, vs. The United States
America and United States Spruce Production Corporation.
September 22, 1922. File No. 29,196.
(7763)
Brief of Plaintiffs in Error
Supreme Court
of the Gnited States
OcToBER TERM, 1923.
C. J. Ertckson and UNITED STATES FIDELITY AND
GUARANTY COMPANY,
Plaintiffs in Error,
VS.
THE UNITED STATES OF AMERICA and UNITED STATES
SPRUCE PRODUCTION CORPORATION,
Defendants in Error.
IN ERROR TO THE DISTRICT COURT OF
THE UNITED STATES FOR THE
WESTERN DISTRICT OF
WASHINGTON.
Corwin S. SHANK,
Attorney for plaintiff in error, C. J. Erickson,
Alaska Building, Seattle, Washington.
Henry F. McCuure,
Attorney for plaintiff in error,
The United States Fidelity
and Guaranty Company,
Hoge Building, Seattle, Washington.
INDEX TO CASES.
AMERICAN RADIATOR CO. vs. KINNEAR, 56 Wash. 210, 212
ARBUCKLE vs. BLACKBURN, 191 U. S. 405, 48 L. Ed. 239
BACON vs. RIVES, 16 Otto 99, 27 L. Ed. 69...
BANKERS’ MUT. CASUALTY CO. vs. MINNEAPOLIS, ST. P. &
S. ST. M. RY. CO., 192 U. S. 371, 48 L. Ed. 484
RLUMENSTOCK BROS. AD. AGENCY vs. CURTIS PUB’G CO.,
252 U. S. 436, 64 L. Ed. 649
CARROLL vs. PACIFIC NATIONAL BANK, 19 Wash. 639
CHESAPEAKE € O. R. CO. vs. COCKRELL, 232 U. S. 146, 58 L.
Ed. 544
CLALLAM COUNTY vs. UNITED STATES, Case No. 255, Oct. term
1923, decided Nov. 26, 1923. {
COVINGTON DRAWBRIDGE CO. vs. SHEPHERD, 20 How. 227
15 L. Ed. 896
CURTNER vs. U. S., 149 U.S. 662, 37 L. Ed. 890...
DAWSON vs. COLUMBIA AVE. BD Tt. & T. CO, 187 U.S
178, 49 L. Ed. 713 ; . .“
DEFIANCE WATER CO. vs. DEFIANCE, 191 U.S, 184, 48 L. Ed. 140
DENVER vs. NEW YORK TRUST CO., 229 U. S. 128, 57 L. Ed. 1101
1
EASTERN SHORE SHIPB’G CORP'N, In re, 258 U. S. 548, 66 L.
Ed. 762 . :
GLOBE REFINING CO. vs. LANDA COTTON OIL CO., 190 U.S
540, 47 L. Ed. 1171..
HULL vs. BURR, 234 U.S, 712, 58 L. Ed. 1557
ILLINOIS C. R. CO. vs. SHEEGOG, 215 U. S. 308, 54 L. Ed. 208
IVY PRESS vs. McKECHNIE, 88 Wash. 643 =aavet
LAMBERT RUN COAL CO. vs. B. & O. R. R. CO., 258 U. S. 377,
66 L. Ed. 671 .... :
LOUISVILLE C. & C. R. R. CO. vs. SELSON, 2 How. 497, 11 L.
Ed. 353 “
MARSHALL vs. B. & O. R. R. CO., 16 How. 314, 14 L. Ed. 953
MASSACHUSETTS vs. MELLON, No. 24, Oct. term 1922, decided
June 4, 1923 :
McCAIN vs. DES MOINES, 174 U. S. 168, 43 L. Ed. 936
METCALF vs. WATERTOWN, 128 U. S. 586, 32 L. Ed. 543
NEBRASKA, Ex Parte, 209 U. S. 426, 52 L. Ed. 876
NEWBURYPORT WATER CO. vs. NEWBURYPORT, 193 U. 561,
48 L. Ed. 795
NEW HAMPSHIRE vs. LOUISIANA, 108 U. S. 76, 27 L. Ed. 656
NEW YORK vs. LOUISIANA, 108 U. S. 76, 27 L. Ed. 656
NIL ES-BEMENT-POND CO. vs. IRON MOULDERS'’ UNION, 254
i a: Ee 65 L. Ed. 145
ii INDEX TO CAsES—Continued.
a Pasi
NORTH AMERICAN T. & T. CO. vs. MORRISON, 178 U. S. 262,
me la ee ee 19
NORTON vs. WHITESIDE, 239 U. S. 144, 60 L. Ed. 186... 8
PAC. R. R. CO. vs. KETCHUM, 11 Otto 289, 25 L. Ed. 932... 18
PIERCE CO. DAIRYMEN’S ASS'N vs. TEMPLIN, 124 Wash. 567... 5
PROVIDENT SAVINGS L. ASSURANCE SOC’Y vs. FORD, 114 U.
BL Ig i ith CNN: IR icesincsicsn ua scannnleiniccei anaiaiconenteeeibe N
: ST. JOSEPH & G. I. R. CO. vs. STEELE, 167 U.S. 659, 42 L. Ed. 315 8
‘ SHACKER vs. HARTFORD F. INS. CO., 3 Otto 241, 23 L. Ed. 862... 19
7 SLOAN SHIPYARDS CORP'N vs. U. S. SHIPPING BOARD EMER-
3 GENCY FLEET CORP'N, 258 U. s. 549, 66 L. Ed. 762 13
: SMITHERS vs. SMITH, 204 U. S. 632, 51 L. Ed. 656.00... 19
2 SOUTH COVINGTON & C. ST. RY. CO. vs. NEWPORT, 259 U.
B co te a SL ee RRA Caathreteaacc Si eaten sea es too. ofthe CENT ed 8
: STEELE vs. CULVER, 211 U. S. 26, 53 L. Ba. 74... 18
3 U. S. vs. SAN JACINTO TIN CO,, 125 U. S. 273.....................0... 16
ia U. S. vs. STRANG, 254 U. S. 491, 65 L. Ed. 368............ _ =;
; U. S. vs. WALTER, Case No. 20, Oct. term 1923, decided Oct. 22,
% OS AEE AGRON AI PEARY TIER ETI te a ae
x U. S. EM’Y FLEET CORP'N vs. WOOD, 258 U. S. 548, 66 L. Ed.
e MMI sledge chao ns Wangs sobs Wliahioctatin a teeta etates atanee Maen keen aata Gace ont . 2
{ U. S. GRAIN CORP'N vs. PHILLIPS, Case No. 290, Oct. term 1922,
3 decided Feb. 19, 1923 ........................ a
4 U. S. SPRUCE PROD'N CORP'N vs. LINCOLN COUNTY, 285 Fed.
‘ _” QUR ie nt San n aeieiten agitate 12
3 VANCE vs. VANDERCOOK CO., 170 U. S. 468, 42 L. Ed. 1111... 19
WALDEN vs. SKINNER, 11 Otto 577, 25 L. Ed. 963.............0.000......... 18
3 WASHINGTON CO-OP. EGG & POULTRY ASS'’N vs. TAYLOR,
; cE 2 NE, ite aeibraant Punta eeinl a nua URE nEeny Tew EnS ENT Ronen BORAT
: WECKER vs. NATIONAL ENAMELING & S. CO., 204 U. S. 176,
; A I ois cca cMiems nagesnis eve sbhden snk aecadeeon oneaas 18
2 WHITNEY vs. WYMAN, 11 Otto 392, 25 L. Ed. 1060... 6
‘ WILDER (D. R.) MFG. CO. vs. CORN PRODUCTS REF. CO., 236
i OAS Tes RS OE, BOM Rais sicinreiwsrcdernargensncenns ioe ; 6
; WILSON vs. REPUBLIC IRON & STEEL CO., 257 U. S. 92, 66 L.
BN MRE antec orcas actus witindatipinkacddea pkuccactacsintouesre acer aeee
Bank of the United stetes ve. ‘Inntors art.
9 twatorn 904, 907.
In Re Mastom chore Shinai iding Co.
Pode 303, 399.
Salas Ve intted ‘Beatese
054 red. O42, S44.
TERRE o>
Brief of Plaintiffs in Error
Supreme Court
of the Gnited States
OcroBeR TreRM, 1923.
C. J. Erickson and UNITED Starrs FIDELITY AND
GUARANTY CoMPANy,
Plaintiff's in Error,
US,
THE UNrrep STATES OF AMERICA and UNrrep Srarrs
SPRUCE Propuction CORPORATION,
IN ERROR TO THE DISTRICT COURT OF
THE UNITED STATES FOR THE
WESTERN DISTRICT OF
WASHINGTON,
STATEMENT OF THE CASE.
This was an action brought to recover a sum
of money alleged to be due by reason of various
breaches of certain contracts entered into between
the defendant in error. United States Spruce Pro-
duction Corporation, a corporation organized under
the laws of the state of Washington, and the plain-
tiff in error, C. J. Erickson, a resident and citizen
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of the state of Washington, for the sale of certain
logs belonging to the Spruce Corporation. The
plaintiff in error, United States Fidelity & Guaranty
Co., was joined as a defendant in the action because
it had given a bond to the Spruce Corporation to
secure the performance of the contract by Mr.
Erickson.
In an attempt, however, to give jurisdiction to
the federal court, the Spruce Corporation procured
the United States of America to become a_ party
plaintiff with it. The supposed connection of the
United States of America with the litigation is set
forth at length in paragraphs Il. to VIIL., in-
elusive, of the complaint, (Tr. pp. 2-4) but can be
completely and accurately stated in the language
contained in an opinion of this court in which the
same corporation is involved, the case being that of
Clallam County vs. U.S. of America, Case No, 295
of the October term, 1923, decided November 26,
1923, where the court said:
‘**In short, the Spruce Production Corpora-
tion was organized by the United States as an
instrumentality for carrying on the war, all its
property was conveyed to it by or bought with
money coming from the United States, and was
used by it solely as means to that end, and when
the war was over it stopped its work except se
far as it found it necessary to go on in order to
wind up its affairs. When the winding up is
accomplished there will be a loss; but whatever
assets may be realized will go to the United
States.”’
a
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»)
The plaintiff in error moved to strike all the
matter relating to the organization of the Spruce
Corporation, other than that it was a corporation
created under the laws of the state of Washington,
upon the ground that all such matter was irrelevant
and immaterial, (Tr. pp. 32-33) but this motion was
hy the district court denied. (Tr. p. 34.)
The defendants then demurred to the complaint
upon the ground that it appeared upon the face
thereof that the court had no jurisdiction of the
subject matter of the action, (Tr. p. 35) but this
demurrer was by the district court overruled. (Tr.
pp. 59-86.) The defendants then, by answer, denied
particularly that the action was any suit authorized
under the constitution or any law of the United
States, and denied particularly that the United
States of America had any legal interest in the
cause of action therein set forth, or was a necessary
or proper party thereto. (Tr. p. 36.)
The matter came on duly for trial and judg-
ment was rendered in favor of defendants in error
and against the plaintiffs in error, from which
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