15 Mo. App. 532 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is an action in the nature of a suit in equity, in which the plaintiff seeks to have the court adjudge and decree what shall be deemed the value of a certain lot demised by the plaintiff to the defendant, upon which valuation the rent to be paid shall be computed under the terms of the lease. It was alleged and proved that in January, 1870, the plaintiff, being the owner of a lot of ground situated in block No. 558 in the city of St. Louis, fronting thirty feet on Seventh Street, and extending one hundred and twenty-five feet east\yardly to a public alley, entered into a lease with the defendant by which she demised the same to him for the term of thirty years from the first day of January, 1870, upon the following conditions in respect of the rent to be paid: “Yielding and paying the yearly rent of $245 for the first ten years, and for each succeeding period of ten years of said term the yearly rent of six per cent on the value of the ground, to be fixed at the commencement of each said period of ten years by the unanimous appraisement of disinterested men, one chosen by the lessor and the other by the. lessee ; and in case the appraisers do not agree, others to be chosen till an appraisement be made, as aforesaid ; and if such appraisement be delayed beyond rent day the lessee to pay on account at the rate of six per cent on the last valuation of the ground for city taxes, and the residue when the rent be fixed as aforesaid. And the lessee agrees to pay the rent by equal instalments on the second days of January and July in each year.” The lessee also covenanted to pay general' and special taxes during the term for which the premises were demised.
The plaintiff in her petition, after setting out the terms of the lease, makes the following allegations: “Plaintiff states that she did, on the last mentioned day, and on many times thereafter, and still is ready to do, everything on her part provided to be done on her part by said lease in order
“ Plaintiff further states that she has sevei’al times appointed, as provided by said lease, a competent and disinterested person— each appointment being of a different person — to appraise said lot for her, and did, at the time of each of said appointments, request said defendant to appoint a person Avith like qualifications to appraise said lot for him; but plaintiff says that in no instance Avas the pei'son so by her appointed able to come to any agreement with any person appointed by said defendant, as above mentioned, for the reason that the appraisement made in every instance by every person so appointed by said defendant was incorrect, and this plaintiff Avould have been greatly injured if any of such appraisements had been agreed to by any person so appointed by her.
“Plaintiff further states that an appraisement of said lot can not be made in the manner contemplated by said lease ; that this plaintiff Avould be put to further great and useless charges and expense by any further attempt on her part to cause said lot to be appraised in the manner contemplated by said lease ; that she has been greatly injured by
The defendant, in his answer, after admitting the making of the lease, denies those allegations ; avers that he has paid the rent accrued under the lease from January 1, 1880, up to and including July 1, 1882 ; and further answering says, “that in every instance when requested by plaintiff to select an appraiser to ascertain and fix the value of said leased premises, he did select as his appraiser a disinterested and competent person to appraise said ground, and that the persons selected by plaintiff to appraise the same have been in each instance interested and incompetent persons, and that the failure upon the part of appraisers so selected to make a unanimous appraisement was in each instance the fault of plaintiff’s appraisers, who were unwilling to appraise said ground at a fair and reasonable value.”
At the hearing in the circuit court th§ plaintiff offered evidence to the effect that on the 12th of February, 1880, she notified the defendant that she had appointed Mr. E. A. Manny as her appraiser under the lease, and required him to appoint an appraiser to act with Mr. Manny in fixing the' the value of the premises in accordance therewith. The defendant accordingly appointed Mr. P. F. Madden. These gentlemen met, viewed the premises, and could not agree ; and, concluding that it was useless to confer any longer, separated. Mr. Manny valued the ground at $100 per front foot; Mr. Madden would not concede that it was worth more than $50 per front foot. There is a slight discrepancy on this point between the testimony of Mr. Manny and Mr. Madden; the former testifying to..having valued
These appraisers, having been unable to come to an agreement, the plaintiff, in July, 1882, sent another written notice to the defendant, informing him that she had appointed Mr. Ringrose J. Watson as her appraiser under the terms of the lease, and requiring him to appoint an appraiser on his part. He accordingly appointed John S. Costello. These two appraisers met and compared their views, with substantially the same result which had attended the conference of the two former appraisers—they could not agree. Mr. Watson was of opinion that the ground was worth $100 per front foot; Mr. Costello was of opinion that it was not worth more than $50 per front foot; and so this second effort at an appraisement failed. The plaintiff made no further effort to fix a valuation in the manner pointed out by the lease, but she has brought the present suit in equity, asking the circuit court to fix such valuation.
A good deal of conflicting evidence was introduced at the hearing, as to the value of the property. The plaintiff’s evidence on this point of her case consisted of the testimony of several persons acquainted with the values of real estate
In the view which we take of the case, we are not called upon to make a finding of the facts upon this conflicting testimony. By the lease, the parties made a contract for themselves. The defendant stands ready and willing to perform it as made. This being so, we can not make another and a different contract for them, and then execute it for them by our own methods. By that instrument they agreed that the valuation for the purpose of computing the rent after the expiration of the first ten years of the term should be fixed “by the unanimous appraisement of disinterested men, one chosen by the lessor and the other chosen by the lessee.” If their agreement had ended here, and if, upon an agreement so ending, the plaintiff had come into court and had shown that it was entirely impossible to fix any valuation in the manner thus agreed upon, then we should have to consider the question whether a court of equity would have the power to interpose, and to fix a valuation for them. But the agreement did not stop here. The very contingency which has happened, of the appraisers being unable to agree, was within the minds of the parties when they executed the lease; and they provided in the instrument itself what the valuation should be in this contingency. This valuation was to be, not such a valuation as might be fixed by the circuit court upon a suit brought for the purpose of having the valuation fixed ; but it was to be “the last valuation of the ground for city taxes,” and upon this valuation the rent was to- be computed and paid, as an interim or provisional valuation, until the valuation
None of the cases which have .been cited by the learned counsel for the appellant at all impugn the views here expressed, or support the view on which the plaintiff’s claim for relief proceeds. We have looked carefully into these cases, and into a number of others which bear upon the general subject. Conflicts of opinion, no doubt, appear in them; but none of them exhibit any conflict of opinion, so far as we can see, in respect of what it would be necessary to hold in order to support this action.
It is said that equity will compel the specific performance of a covenant to renew a lease. Blackmore v. Boardman, 28 Mo. 420; Finney v. Cist, 34 Mo. 303; Garnhart v.
Another class of cases, which have some bearing upon the question before us, is those where leases have contained covenants to renew at a rental value to be fixed by appraisers ; or for the purchase of improvements by the lessor, at a valuation to be fixed in the same way. In these cases, the courts have held that equity will not decree specific performance of so much of the contract as requires the appointment of appraisers ; proceeding upon the general rule that an agreement to arbitrate is not enforceable in equity. But while they have so held, they have, in some cases, regarded the agreement of the landlord to renew or to purchase the tenant’s improvements at the end of the term, as the substantial contract and the manner of fixing the rental value or the value of the improvements as a mere incident; and they have, accordingly, held that a court of equity would enforce the performance of the principal contract, not modo et forma, but fixing the valuation according to its own methods. Strohmaier v. Zeppenfeld, 3 Mo. App. 429 ; Biddle v. Ramsey, 52 Mo. 153; Hug v. Van Burkleo, 58 Mo. 202; Black v. Rogers, 75 Mo. 441, 449 ; Tscheider v. Biddle, 4 Dill. 55. These cases form an exception to the rule that an unexecuted contract of sale which provides that the price is to be fixed by arbitrators
But no case of this class has been cited to us where the court has enforced the performance of such a contract where the party proceeded against stood by, ready and willing to perform it according to its terms. All the cases in this state where such contracts have been enforced, have been, in this regard, essentially different from the case at bar. In Strohmaier v. Zeppenfeld (3 Mo. App .429), the lessor refused to perform the covenant to renew; and it was held that, while equity would not enforce so much of the covenant as provided for the appointment of appraisers, yet by its own methods, it would, upon the hearing of evidence, ascertain what would be the reasonable rental value, and, upon this basis, decree performance. In Arnot v. Alexander (44 Mo. 25), the lessor also refused to renew, and it was held that specific performance of the covenant to renew would be decreed, the court ascertaining from evidence, what would be a fair rental value. In Biddle v. Ramsey (52 Mo. 153), the covenant in the lease was that, at the end of the term the lessor and lessee should each appoint an assessor, and that these two assessors should appoint a third; that the three should unanimously assess the value of the improvements and of the yearly rental; and that the lessor should then have the privilege of buying the improvements, or should grant a re newal of the lease at the rental so fixed, with the covenants of the old lease. It appeared that the lessee had always appointed partial assessors, so that no unanimous decision could be obtained, and had occupied the premises for a number' of years since the expira
It will be perceived that in every one of the foregoing cases, one of the parties to the agreement had either refused to perform it according to its terms, or had fraudulently obstructed its performance. Neither of these things has happened in the present case. The defendant has not fraudulently obstructed the fixing of the valuation by appraisers, but he has met the plaintiff at each request by the appointment of a disinterested and competent appraiser.
We are very clear that the circuit court was right in dismissing the bill, and its judgment is accordingly affirmed.