260 Mass. 460 | Mass. | 1927
By an indenture dated July 17,1916, Sarah P. Smith and Walter N. Smith leased to the defendant, William J. Dana, a store numbered 56 on Main Street in the city
The covenant for renewal ran with the land, and is binding on the plaintiff, who at some time after July 17, 1916, acquired the title and when the present suit was begun, was the owner of the reversion. Leominster Gas Light Co. v. Hillery, 197 Mass. 267. Taylor v. Kennedy, 228 Mass. 390, 394, 395. It is stated in the bill that within the time named in the lease, the defendant, William J. Dana, notified the plaintiff of his intention to exercise the option of renewal,
The agreement for arbitration was valid. Marsch v. Southern New England Railroad, 230 Mass. 483. The arbitrators seasonably heard the parties and their evidence, and the hearings, when the present suit was begun, had been completed with “the exception of final arguments by counsel upon the evidence as submitted.”
The material allegations of fact in the bill, which are admitted by the demurrer, O’Brien v. O’Brien, 238 Mass. 403, set forth in substance, that the defendants are owners or in control of many stores and buildings in close proximity to the demised premises, and a true statement by them of the “rentals received” would be of great assistance to the arbitrators, and that a fair rental value can be determined only by a complete disclosure “of all facts, documents, books and papers in the possession or within the control” of the parties with such evidence as “both may produce relative to the future rental value,” which is to be ascertained largely from rents received from similar real property in the vicinity. But at the hearings, the defendant, William J. Dana produced “what purported to be existing leases of certain premises in the vicinity of said premises,” and testified as to the rents and income received therefrom. The allegation is then made, that his evidence was “fictitious and false,” and “not in accordance with the facts,” and that it was offered for the purpose of deceiving, and was “intended to mislead, and confuse the . . . arbitrators in their determination of the true rental value of the plaintiff’s property.” The thirteenth paragraph of the bill alleges, that Moses L. Dana is president of the Dana Furniture Company, located in Taunton, of which the defendant, William J. Dana, is the treasurer and clerk, and that Moses L. Dana is the president and William J. Dana is the treasurer and clerk of the Bristol
The arbitrators, under the unrestricted form of submission, which was at common law, were to determine the mode of procedure, and were not bound by techmcal rules. Maynard v. Frederick, 7 Cush. 247. Blodgett v. Prince, 109 Mass. 44. Hall v. Norwalk Fire Ins. Co. 57 Conn. 105. Sanborn v. Paul, 60 Maine, 325. Hewlett v. Laycock, 2 C. & P. 574. The settlement of disputes by arbitration is a matter of ancient practice at the common law, 3 Bl. Com. (Sharswood ed.) 16, and though no action is pending between them, the parties can agree to submit their disputes to arbitrators, provided the agreement for reference does not oust the courts of jurisdiction. Hood v. Hartshorn, 100 Mass. 117, 122. The arbitrators derived their authority from the agreement of the parties, which is authorized by law, and were a tribunal
The arbitrators, before whom the proceedings are still pending, are not joined as parties, and whether the hearing shall be reopened at the request of the plaintiff for the introduction of further evidence, is discretionary with them. Blodgett v. Prince, supra. The question, whether the plaintiff before the award has been executed and published could revoke the submission is not within the scope of the pleadings. See Wallis v. Carpenter, 13 Allen, 19, 24. Boston & Lowell Railroad v. Nashua & Lowell Railroad, 139 Mass. 463, 469.
It is also contended that in an arbitration at common law, the plaintiff cannot summon witnesses to attend the hearings, and give evidence which would tend to establish his contentions as previously described. But it is provided by G. L. c. 233, § 1, that in civil cases on application of a party “A clerk of a court of record, a justice of the peace or a special commissioner may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators or other persons authorized to examine
The prayers, that the contract be cancelled, or terminated, and that other relief by way of damages, or of injunction, should be administered by this court, cannot be granted. Bigelow v. Newell, 10 Pick. 348. Smith v. Boston & Maine Railroad, 16 Gray, 521. Selectmen of Danvers v. Commonwealth, 184 Mass. 502. We fail to perceive why Moses L. Dana, who was not a party to the lease and never succeeded to any rights thereunder nor testified at the hearings, should have been made a defendant. If this defendant has committed any actionable wrong to the plaintiff’s damage, the remedy must be sought in an independent action. Doherty v. Phoenix Ins. Co. 224 Mass. 310, 315.
The order of the trial judge sustaining the demurrer is affirmed, and, the plaintiff having declined to amend, a decree is to be entered dismissing the bill with costs.
Ordered accordingly.