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June 29, 1957

James A. WOOTEN, Plaintiff,
Raymond W. MARSHALL, Defendant

The opinion of the court was delivered by: BRYAN

This is an action upon an alleged agreement of joint venture concerning the purchase of a 160 acre tract of land located in Anchorage, Alaska and its resale. The complaint seeks a decree declaring that there was such a joint venture between the parties, establishing the rights of the plaintiff in the venture and compelling an accounting of the venture by the defendant.

The answer denied that there was an agreement of joint venture and alleges, by way of separate defenses, that the agreement between the parties is unenforcible under the Alaska and New York statutes of frauds.

Defendant now moves, pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A. for summary judgment upon the sole ground that recovery is barred by these statutes of frauds. The motion is predicated upon the testimony of the plaintiff contained in his deposition taken by defendant before trial. For purposes of the motion these facts, as so testified to by the plaintiff, must be deemed to be true. They are as follows:

 In 1947 plaintiff was president, and defendant was chairman, of the Board of Alaska Airlines, Inc. Plaintiff spent considerable time in Alaska and defendant for the most part remained in the United States.

 In early June of 1947 plaintiff, while searching for a home in Alaska for his family, came across a 160 acre tract of land near Anchorage known as the Young Homestead. The property bordered on Cook Inlet. A portion of it on a bluff had a splendid view of the inlet and Mt. McKinley, and the balance, comprising the major portion of the property, was largely lowland.

 Plaintiff ascertained that the property was owned by the heirs of the Young Estate who resided in Portland, Oregon, and it appeared to him that it could be purchased for $ 20,000 to $ 30,000. About 40% of the property was under lease to the Civil Aeronautics Authority which had several years to run.

 Late in June 1947, when next in New York, plaintiff brought the property to defendant's attention, emphasizing the exceptionally attractive view from the bluff and the desirability of building a home there. Both defendant and his wife expressed a desire to view the property and defendant suggested that on his next trip to Alaska he might try to locate the Young heirs in Portland.

 In August 1947 defendant, en route to Alaska with his wife, telephoned plaintiff from Seattle advising that he had located the Young heirs and arranged with plaintiff for their transportation to Alaska. Defendant and his wife then proceeded to Anchorage and plaintiff took them to see the property.

 A number of discussions between the parties ensued, in some of which their wives participated. They talked of the possibilities of building homes for themselves on the bluff and of developing the balance of the property as sites for houses and apartments for Alaska Airlines personnel. There was a severe shortage of housing facilities in the area and plaintiff had already consulted an architect concerning a possible housing development on the property.

 As a result of these discussions the parties agreed that they would offer the Young heirs $ 20,000 for the property, to be purchased on a 50-50 basis; that the choice footage on the bluff, which was only a comparatively small portion of the acreage, would be divided equally between them and would not be sold except for their own occupancy by either without a first offering to the other; that the balance of the tract would be developed and exploited for the joint account of the parties; and that the profits and losses would be shared equally. There was no definite understanding as to what roles the respective parties would take in furtherance of the enterprise, but it was understood that each would communicate to the other with respect to any possibilities for exploitation and profit that might appear.

 In the meantime two of the Young heirs arrived in Alaska and the parties jointly undertook negotiations with them for the purchase of the property for $ 20,000, informing them that they intended to purchase it on a partnership basis. The offer was tentatively accepted subject to the approval of the other Young heirs.

 At the close of the summer, before defendant left for the United States, it was understood that he would stop in Portland to close the deal. Plaintiff tendered defendant his check for $ 10,000, but defendant declined it stating that if he needed the money when the deal was closed he would call upon the plaintiff for it. This was quite satisfactory to plaintiff who had been arranging to borrow the money to cover his share of the purchase price, and who also was in the process of making arrangements with defendant for the purchase from him of a substantial block of Alaska Airlines stock.

 In September 1947 defendant closed the deal for the property, paid the full purchase price of $ 20,000, and received a deed to the ...

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