ROSS, Circuit Judge
(after stating the facts as above). As will he seenTrom the bill, the object of the suit was to obtain a decree removing a cloud from the complainants’ title by canceling the lease; the ground of the suit being the alleged fact that the complainants had theretofore unlawfully declared the lease forfeited by reason of the breach of its covenants and conditions by the lessee.
The real question in the case is whether the time for the performance of the covenants and conditions of the lease was extended by agreement of the parties. It is contended on the part of the appellants that this was effected at a meeting between the complainant Pittock and the defendant Wood and his associate in the enterprise, Hawley, held at Pittock’s office in Portland on the 13th of May, 1909. The trial judge, in deciding the controversy in favor of the complainants, expressly stated that, while he had no doubt that Wood and Hawley “both intended to testify on the trial to what they understood to he the arrangement with the plaintiff,” yet that he was constrained, to find from the testimony of Pittock and his witness Price, and from the subsequent conduct of Wood and Hawley, that the latter were mistaken. Nor does- the learned counsel for the appellants question the good faith and honesty of the complainant Pittock.
The case shows that the appellants were engaged in similar enterprises in a number of cities, necessarily involving the expenditure of large sums of money, and, among them, in the erection on a nearby block in the city of Portland of a large structure called the Olds, Wortman Ik King Building. At first they met the payments called for by the lease in question, but then the well-known money panic of 1907 came on, and they became unable to do so. Pittock became in urgent need of ready money, not on his own account, so far as appears, but in order to aid a brother who was in financial trouble in Pittsburg, Pa. So urgent were his needs in that regard that on the 19th day of April, 1909, lie demanded a substantial payment on the amount then due under the lease, and threatened that, if the entire amount due was not paid by June 10, 1909, he would “consider the cancellation of the lease according to the terms of the same.” It was that pressing demand that brought about the meeting of May 13, 1909. Pittock and Price testified positively that the latter was present at the meeting. Wood and Hawley denied that he was present on that occasion. Eliminating Price’s testimony in corroboration of that of Pittock, and looking first at the version as given by Wood and Ilawley of the understanding of the parties to the lease arrived at at that meeting, and at what led to the meeting, we find that in response to the demand and threat made by Pittock in his letter of April 19, [608]*6081909, Wood wrote him, under date May 7th of that year, a frank, manly letter, setting forth at length the utter impossibility of himself and his associates proceeding with the building provided for by the lease under the then conditions, and the impossibility of their making any part of the payments then due thereunder, and offering to consent to a cancellation of the lease, but upon the condition that Pittock would release them from all obligation for unpaid rental. It is true that 'such condition was not expressly stated in the letter of May 7, 1909, but that such was the effect of the proposal made by Wood in that letter is admitted by him in his testimony on the trial, where he was questioned and answered in respect to that matter as follows:
“Q. As a matter of fact, Mr. Wood, taking the letter of May 7th, and referring to your sentence in which you say, ‘What is best for you at this time. is best for us, Mr. Pittock,. and we therefore acquiesce in your conclusion to cancel the lease,’ that is based upon your being released from all obligation for unpaid rental? A. Yes; that was the thought we had thére.
“Q. You never have made any agreement or never have suggested any cancellation of the lease excepting upon the basis o'f your being relieved from back rental? A. Except in one instance.
“Q. When was that? A. When you and I were discussing the bringing of this suit, about an hour before it was brought, ♦ * * [which was on the 13th day of October, 1909].”
So that, according to Wood’s own testimony, during the conversation had between the parties at the meeting of May 13, 1909, no suggestion was made on behalf of the lessee for the cancellation of the lease, except upon the basis of the lessee being relieved from all back rental. This is important to be remembered in considering .the different versions of the conversation at that meeting given by the respective parties. At that time there was about $53,000 due from the lessee to Pittock, ’and, as has already been said, Pittock was then in urgent need of money in order to help his brother out of his financial troubles in Pittsburg. Not only was Pittock’s testimony positive to the effect that he at all times refused to cancel the lease upon the condition suggested by Wood, but was also positive to the effect that at the meeting of May 13, 1909, he was insistent upon the prompt payment of the rentals that were due, explaining his necessity therefor, in respect to which he is corroborated by this testimony of Wood himself:
“Q. Did Mr. Pittock in. the meeting of May 13th tell you why he. was so desirous of getting money — getting cash payments? A. Yes; he did. He went over that very carefully.
“Q. And did he go into the question of the necessity' of his helping his brother? A. Yes; he did. As a matter of fact he produced a schedule or memorandum of obligations which his brother had, which, as I remember, aggregated some $600,000. lie went to his vault, or a ease of some kind, and got the statement and laid it down on the table where we were talking, and he went over it in considerable detail, pointing out certain items, mentioning amounts on which he had already paid something, other items on which he would have to pay some by a certain date, and other items that could stand a while. He didn’t go over all of the items, but I should think there were— my memory would say perhaps 20 items of those obligations on that schedule.”
The contention on the part of the appellants is that at that meeting the understanding of the parties was that Pittock would, and thereupon did, give them an extension of nine months from that date with[609]*609in which not only to commence the building called for by the lease, but also within which to make all payments clue. Pittock testified that he at no time consented to vary the terms of the lease in any respect, and positively denied that he consented to any extension of time within which the money due should be paid. He also testified that while Wood and Hawley, at the meeting of May 13th, did not definitely fix any time, they said they thought they could make the payments within 60 days from that date, and that, not having done so, he waited until the 9th of August following before giving the notice hereinafter referred to. In support of their testimony that at the meeting of May 13, 1909, Pittock agreed that they should have nine months from that date within which not only to commence the building provided for by the lease, but also within which to pay the money due from them under the lease, Wood and Hawley testified, among other things, as here set forth.
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ROSS, Circuit Judge
(after stating the facts as above). As will he seenTrom the bill, the object of the suit was to obtain a decree removing a cloud from the complainants’ title by canceling the lease; the ground of the suit being the alleged fact that the complainants had theretofore unlawfully declared the lease forfeited by reason of the breach of its covenants and conditions by the lessee.
The real question in the case is whether the time for the performance of the covenants and conditions of the lease was extended by agreement of the parties. It is contended on the part of the appellants that this was effected at a meeting between the complainant Pittock and the defendant Wood and his associate in the enterprise, Hawley, held at Pittock’s office in Portland on the 13th of May, 1909. The trial judge, in deciding the controversy in favor of the complainants, expressly stated that, while he had no doubt that Wood and Hawley “both intended to testify on the trial to what they understood to he the arrangement with the plaintiff,” yet that he was constrained, to find from the testimony of Pittock and his witness Price, and from the subsequent conduct of Wood and Hawley, that the latter were mistaken. Nor does- the learned counsel for the appellants question the good faith and honesty of the complainant Pittock.
The case shows that the appellants were engaged in similar enterprises in a number of cities, necessarily involving the expenditure of large sums of money, and, among them, in the erection on a nearby block in the city of Portland of a large structure called the Olds, Wortman Ik King Building. At first they met the payments called for by the lease in question, but then the well-known money panic of 1907 came on, and they became unable to do so. Pittock became in urgent need of ready money, not on his own account, so far as appears, but in order to aid a brother who was in financial trouble in Pittsburg, Pa. So urgent were his needs in that regard that on the 19th day of April, 1909, lie demanded a substantial payment on the amount then due under the lease, and threatened that, if the entire amount due was not paid by June 10, 1909, he would “consider the cancellation of the lease according to the terms of the same.” It was that pressing demand that brought about the meeting of May 13, 1909. Pittock and Price testified positively that the latter was present at the meeting. Wood and Hawley denied that he was present on that occasion. Eliminating Price’s testimony in corroboration of that of Pittock, and looking first at the version as given by Wood and Ilawley of the understanding of the parties to the lease arrived at at that meeting, and at what led to the meeting, we find that in response to the demand and threat made by Pittock in his letter of April 19, [608]*6081909, Wood wrote him, under date May 7th of that year, a frank, manly letter, setting forth at length the utter impossibility of himself and his associates proceeding with the building provided for by the lease under the then conditions, and the impossibility of their making any part of the payments then due thereunder, and offering to consent to a cancellation of the lease, but upon the condition that Pittock would release them from all obligation for unpaid rental. It is true that 'such condition was not expressly stated in the letter of May 7, 1909, but that such was the effect of the proposal made by Wood in that letter is admitted by him in his testimony on the trial, where he was questioned and answered in respect to that matter as follows:
“Q. As a matter of fact, Mr. Wood, taking the letter of May 7th, and referring to your sentence in which you say, ‘What is best for you at this time. is best for us, Mr. Pittock,. and we therefore acquiesce in your conclusion to cancel the lease,’ that is based upon your being released from all obligation for unpaid rental? A. Yes; that was the thought we had thére.
“Q. You never have made any agreement or never have suggested any cancellation of the lease excepting upon the basis o'f your being relieved from back rental? A. Except in one instance.
“Q. When was that? A. When you and I were discussing the bringing of this suit, about an hour before it was brought, ♦ * * [which was on the 13th day of October, 1909].”
So that, according to Wood’s own testimony, during the conversation had between the parties at the meeting of May 13, 1909, no suggestion was made on behalf of the lessee for the cancellation of the lease, except upon the basis of the lessee being relieved from all back rental. This is important to be remembered in considering .the different versions of the conversation at that meeting given by the respective parties. At that time there was about $53,000 due from the lessee to Pittock, ’and, as has already been said, Pittock was then in urgent need of money in order to help his brother out of his financial troubles in Pittsburg. Not only was Pittock’s testimony positive to the effect that he at all times refused to cancel the lease upon the condition suggested by Wood, but was also positive to the effect that at the meeting of May 13, 1909, he was insistent upon the prompt payment of the rentals that were due, explaining his necessity therefor, in respect to which he is corroborated by this testimony of Wood himself:
“Q. Did Mr. Pittock in. the meeting of May 13th tell you why he. was so desirous of getting money — getting cash payments? A. Yes; he did. He went over that very carefully.
“Q. And did he go into the question of the necessity' of his helping his brother? A. Yes; he did. As a matter of fact he produced a schedule or memorandum of obligations which his brother had, which, as I remember, aggregated some $600,000. lie went to his vault, or a ease of some kind, and got the statement and laid it down on the table where we were talking, and he went over it in considerable detail, pointing out certain items, mentioning amounts on which he had already paid something, other items on which he would have to pay some by a certain date, and other items that could stand a while. He didn’t go over all of the items, but I should think there were— my memory would say perhaps 20 items of those obligations on that schedule.”
The contention on the part of the appellants is that at that meeting the understanding of the parties was that Pittock would, and thereupon did, give them an extension of nine months from that date with[609]*609in which not only to commence the building called for by the lease, but also within which to make all payments clue. Pittock testified that he at no time consented to vary the terms of the lease in any respect, and positively denied that he consented to any extension of time within which the money due should be paid. He also testified that while Wood and Hawley, at the meeting of May 13th, did not definitely fix any time, they said they thought they could make the payments within 60 days from that date, and that, not having done so, he waited until the 9th of August following before giving the notice hereinafter referred to. In support of their testimony that at the meeting of May 13, 1909, Pittock agreed that they should have nine months from that date within which not only to commence the building provided for by the lease, but also within which to pay the money due from them under the lease, Wood and Hawley testified, among other things, as here set forth. Having stated that he and Hawley had an extended interview with Pittock at the latter’s office in Portland on May 13, 1909, Wood'was questioned, and answered as follows:
“A. Mr. Hawley conducted the major portion of tlie conversation on our part. In fact. Mr. Hawley had assisted me in preparing the letter ol' May 7 th in Seattle. And wfe told Mr. Pittock that we had come down to see Mm in relation to his letter of April l!)th, and, in relation to our reply of ¡May 7th, to go over the matter with him, and we went over with him again. We asked him if he liad received tlie letter of May 7th and considered it, and he said that he had. We then took up the letter of May 7th, and went over again very thoroughly in quite an extended conversation the suggestions of that letter.
“Q. Excuse me a moment for interrupting you. You said you took up the letter of May 7th. Do you mean that you had it then and there before you? A. I am not clear as to that. 1 think I had my copy with me. I don’t know whether we used the letter.
“Q. Then, you mean in tlie sense of ‘took up’ that you went into the subject? A. Yes; that we went into the substance of what was in issue there.
“Q.’All right, go ahead. What I was trying to get at was 1 did not know but you had the actual physical letter there before you and went over it— each article. A. I am not clear as to that.
“Q. All right, go ahead. A. We told him that we had come to get a decision from him in relation to his letter of April 19th and upon the basis of our reply, having set before him in our letter frankly what the condition was, which we did again in our conversation. We told him in the conversation that we were not able to pay any more rental at that time, as called for by his letter of April 19th. We told him that we had the Olds, Wortman & King Building construction on hand that was taxing our attention and our resources at that time, and that we would not be able fo proceed with the construction of tlie building on the Pittock block until we had practically completed the Olds, Wortman & King Building, which we told him would require nine months from that time to complete. And we told him we wanted to know what our program was in relation to that because it was hopeless for us to hold out to him that we could make earlier payments than we had said in the letter of May 7th, either of rent or of taxes or of the construction of the building. And we told him that we had come to accept his suggestion of a cancellation of the lease, and left the subject before him.
. “Q. Then what did he say in answer to that? A. His answer was that he didn’t desire to cancel the lease; that his chief desire was, on account of the requirements that were upon him, to get his payments upon the rent at the earliest date that they could be obtained, but he did not desire to cancel the lease, and preferred that we proceed under the lease upon the program that we had specified to him in the conversation and in the letter.
“Q. Did he say anything about what time he would, expect payments to be made or what time of suspension would be given? A. Well, we told him that, [610]*610under the requirements that were upon us, we could pot assure him of rental payments or of the beginning of construction until the completion of the Olds, Wortman & King Building, which we told him in the conversation would require about nine months. In response to that he declined to cancel the lease, but requested us — said that he desired us to proceed, and that he would wait for us and for our efforts on that plan or program.
“Q. Until the completion of the building? A. Yes.
“Q. Now, is there anything else that occurred at that time that you desire to state? A. There doesn’t anything further occur to me now. The conversation occupied quite a little time.
“Q. Well, what was the next step in this case, or the next development? A. The next development was the notice of August 9th notifying us, notifying me that, unless payments were made within 60 days, the lease would be canceled.
“Q. That is this notice that has been introduced, signed by Mr. Pittock? A. Yes, sir.”
Being questioned in respect to the same interview, Hawley testified as follows:
“A. I will endeavor to give the conversations or their purport as accurately as I can. Judge Wood and X called upon Mr. Pittock May 13th, and found him alone in his office, and Judge Wood took up with him very briefly the question of whether he had received this letter of May 7th or not, and whether he had considered it. Pie said that he had received it, and that he had read it and considered it. We then stated to him — I think I stated this portion of the conversation myself, perhaps — said to Mr. Pittock that X came there with Judge Wood as one of his associates that co-operated with him in the handling of enterprises of this kind, and that I had just come from New York a short time, before that; and I thought it was due to Mr. Pittock to make clear, make perfectly clear to him the views of Judge Wood’s associates as to the immediate position that he was in, and that his associate companies were’in, with relation to the financing of the Pittock transaction. I. pointed out to him that, notwithstanding a very stressed period of business, our various companies had succeeded in carrying on their various enterprises and that at great efforts, under the conditions, the Olds, Wortman & King matter had been carried on, which was a matter of very great advantage to him and his property because it was in close proximity to it. It would build value into it, and that altogether the effort and work that was being done was to his good, not to his harm. I explained to him that so far as Judge Wood’s associates were concerned, so far as our associate companies, each one being a separate entity, were concerned, and so far as I was concerned, the strain of the panic had given us all we could do to carry the loads that we had, and that his suggestion of his cancellation of the lease (while it would work a great hardship on Judge Wood in the matter of direct loss of what he had applied to it) was a thing that, if he expected any payment at that time from Judge Wood through the support of his associates, that it was fair for me to make clear to him we could not get. There wasn’t anything available, nor would it be immediately available. I pointed out to Mr. Pittock as clearly as I could that the undertakings that we had in hand would absorb all of our efforts, all of our financial strength, all of the strength of our connections, at least until we should have completed the Olds, Wortman & IGng Building, and, in the spirit of the letter and effort that Judge Wood had made, that I wanted to concur that it was the time for Mr. Pittock to make his decision, not June 10th, but then, as to whether he would elect to cancel the lease as he had said he would do, or whether he would grant sufficient extension so that the various enterprises in which we were interested could clear up their undertakings and be prepared to finance this transaction and carry it through. Mr. Pittock answered us that he didn’t desire to cancel the lease, was satisfied to have it carried out, wanted it carried out, and he was in hopes that we would — that Judge Wood would be able to pay him promptly at that time. We answered him that that was impossible, or in the immediate future and emphasized the fact that all our associate companies, and efforts and resources were occupied and made it clear to him, I [611]*611thought, without doubt, that it was a question of his granting an extension until we should have completed the Olds, Wortman & King Building, which would he a great benefit to him, or canceling the lease. That there wasn’t any halfway step that we would be able 1o accomplish: and 1 pointed out to him also that if he elected to have the lease continue, and asked us to try to carry it out, asked Judge Wood to go ahead with it, asked me to co-operate with him, that we would use our best endeavors, and I would use my best endeavors in all the connections that I had, and we would conserve our resources for that enterprise as soon as we had accomplished the Olds, Wort-man & King transaction. And Mr. Pittock then told us that it was his desire and his election, after that frank statement of our abilities and inabilities, that we go ahead and endeavor to finance the transaction and build the building, and comply with the lease. And under that assurance from him, that express desire on his part that we should do so, I used my best endeavors after that time to prepare our various institutions, and to get our various connections interested in the subject and ready, when we were through with the Olds, Wortman & King matter, to take it up. I left Mr. Pittock’s office with Judge Wood with the clear understanding that it was his distinct; request and election that we should carry out the lease and that he would grant us the necessary extension to do it.
“Q. Was anything said at that time about when, definitely, you expected to have the Olds, Wortman & Iving business olí your hands’.1 A. Tes; that date we very carefully calculated. We knew that it would take us about nine months to complete it, and made that very clear to Mr. Pittock. lie understood that that was what was before it, and that was my errand there, to make that clear to him, as one of the associates in the matter.”
_ Not only is the claimed agreement on Pittock’s part to extend £or nine months the payment of the overdue money strenuously denied by him in his testimony, but we think it highly improbable that he would have made such an agreement in view of his then pressing need of the money, already alluded to. And the testimony above quoted of Wood and Iiawley as to what occurred at the meeting in question is far from sustaining their contention. It is undoubtedly true, as shown by the testimony of all the parties to the conversation, that Pittock did' not then wish to cancel the lease, and we are of the opinion from the record that he did at that meeting practically acquiesce in the postponement of the commencement of the building by the lessee for the nine months asked for that purpose; but that he did not consent to any such delay in the payment by the lessee of the money due under tlie lease.
In the testimony of Wood and Hawley as to what occurred in the meeting of May 13th, there is no statement that Pittock agreed to wait for nine months or any other definite time for the payment of the money due him, and there are implications to be drawn therefrom, to some extent at least, corroborating Pittock’s testimony to the effect that they then said they thought they would be able to pay the money due within the 60 days from that time. Not having done so, Pittock gave the notice of August 9, 1909, to the effect that, unless the money was paid within the next 60 days, he would declare the lease forfeited, which he later did; such payment not having been made. The conclusion reached by the court below, and to which we have come after a careful consideration of the record, that Pittock did not make the agreement relied upon by the appellants, is sustained by the further facts shown by the record that, when the notice of August 9th was received by Wood, the latter made no contention that a for[612]*612feiture for the nonpayment of the money due would be in violation of a previous agreement for the extension of such payment, nor when notified in October, 1909, by Pittock’s secretary, the witness Price, that he had positive instructions to commence suit if the rent was not paid by October 10th, did the defendant claim that there was any agreement for the extension of the time for such payment, although he did protest against the bringing of such suit on the ground that it would do the complainant no good and prevent the defendant from proceeding under the lease, and injuriously affect the work then being carried on by the defendant in Portland.
The present not being a suit to declare a forfeiture, the other question argued by counsel does not arise.
The judgment is affirmed.