100 Mass. 117 | Mass. | 1868
The lease bears date February 20, 1862, and is for the term of five years from the first day of August then next. It contains the following clause, on which the rights of the parties in this action depend: “And it is agreed by and between the parties, that at the expiration of this lease the buildings which have been heretofore erected by the lessee on the premises shall be appraised by three disinterested men, one to be chosen by the lessor, one by the lessee, and the third by the two appraisers thus chosen ; and said Paine agrees to purchase said buildings of said Hood at the price so set by said appraisers.” This clause is to be construed with reference to its subject matter. By its terms, the appraisement was not to be made till the expiration of the lease. This would give no time for the removal of the buildings in case the appraisers should fail to agree ; and by operation of law they would become the property of the lessor without any conveyance or transfer. It would be unreasonable to construe the agreement so as to ren ier the obligation of the lessee to pay for them entirely depend» ent upon the making of an appraisement. The appraisement is to be regarded as a mere method of ascertaining the price to be
Whether the plaintiff has thus fulfilled the contract on his part is a question of fact for the jury; and the court are of opinion that the evidence offered by the defendant is material on this point. „ If he has fulfilled the contract, he is entitled to eeover the value of the buildings, to be assessed by the jury, or by an assessor if the parties so agree. If he has failed to ‘ulfil it, he is not entitled to maintain this action, but must proceed according to his contract, and make all reasonable efforts o procure an appraisement, which is all that a reasonable construction of his contract requires of him as preliminary to bringing an action for the price.
The question whether an arbitration clause in a contract is
New trial ordered.