Janney, Semple & Co. v. Goehringer
54 N.W. 481
Minn.
1893
Check Treatment
Dickinson, J.

This is аn appeal by the defendant Goehringer from a judgment of the district court setting aside, at the suit of the plaintiff in this action, an аward of appraisers as to the value of a building.

The facts, as found by the court, may be thus stated:

In 1881 Mattie L. Brackett had a leasehold estate in a certain lot of land in Minneapolis, the term of which extended to the year 1929. •She, with her husband, leased the premises to the members of a cо-partnership (Janney, Brooks & Eastman) for the term of ten years from June 18, 1881. This latter lease contained a provision that •upon the termination of the lease the lessors should purchase from the lessees the buildings on the premises, the consideration to be paid therefor being the fair market ‍‌‌​‌​​​​​‌‌‌​‌‌​​​​‌‌‌​​‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌​‌‌​‌‌‌‍value, not exceeding $6,000, to be determined by appraisers, one of whom should be chosen by each of the two parties to the lease. The two appraisers so chosen were to select a third. The appraisement of two of the three appraisers was to be final and conclusive.

The lessees, Janney, Brooks & Eastman, erected a large stone building, three stories in height, on the leased premises, at .a cost of *431about $12,000. The appellant, G-оehringer,' succeeded to the interests, rights, and obligations of the lessor Mrs. Brackett; and at the expiration of the leasе, in 1891, for the purpose of having determined the price which he was to pay for such building, he appointed one Basting as аn appraiser, pursuant to the terms of the lease. This plaintiff, a corporation, having succeeded to the interest and rights of Janney, Brooks & .Eastman, appointed one Selden as appraiser. Those two appraisers ‍‌‌​‌​​​​​‌‌‌​‌‌​​​​‌‌‌​​‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌​‌‌​‌‌‌‍seleсted one Muther as the third. Thereafter, and about July P'7, 1891, Basting and Muther made an appraisement of the value of the building at the sum оf one dollar; in which appraisement Selden refused to join. No notice was served on the plaintiff of the meeting of the appraisers for the purpose of making the appraisement, and the plaintiff had no notice or knowledge thereof; nor was any opportunity given to the plaintiff to introduce any evidence, or to be heard before the appraisers. It was hence considered by the court that the appraisement was void, and judgment was entered setting it aside. This appeal is from that judgment. *

The principal question in the ease is as to the validity of the appraisal, under the circumstаnces stated. The court was right in its conclusion that the appraisal was invalid, by reason of the fact that it was made without оpportunity afforded to the plaintiff tobe heard. Schreiber v. German-Am. H. Ins. Co., 43 Minn. 367, (45 N. W. Rep. 708.) See, also, Mosness v. German-Am. Ins. Co., 50 Minn. 341, (52 N. W. Rep. 932.) In the case of an ordinary arbitration there could be no doubt of this. But this submissiоn to appraisers to determine the value of the property which should be paid by ‍‌‌​‌​​​​​‌‌‌​‌‌​​​​‌‌‌​​‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌​‌‌​‌‌‌‍the one party to the other, the parties agreeing to abide by such decision, was in the nature of an arbitration, and the rule affording a right of hearing is applicable. Van Cortlandt v. Underhill, 17 John. 405; Smith v. Boston, C. & M. R. Co., 36 N. H. 458. There doubtless may arise cases, under agreements for appraisals to be made by third parties, in which, eithеr by reason of the terms of the agreement, or from the nature of the matter submitted for decision, it would ■ be •considered that it wаs not contemplated that there should be any .hearing before the appraisers or arbitrators. In Wood v. Helme, 14 *432R. I. 325, this rule is approvеd: “Unless the submission expressly shows that the parties intended that the arbitrators should decide the questions in dispute without the aid or presence of the parties, or it is evident that such was the intention, as where the matter is merely one of appraisal, thе arbitrators must give both parties notice of the time and place of meeting.” But in the case before us there is nothing in the аgreement indicating that the matter in question was to be taken up and decided by the appraisers without allowing the parties to be heard. Nor was the subject submitted such as to require merely an appraisal of the value of property under оrdinary conditions, which every one would be supposed to understand. It required an appraisal of the value of the building under suсh conditions that the parties might reasonably differ in their views as to the basis upon which the estimate of value was to be madе. The appraisers had to construe the contract, and determine its meaning, before they could determine what valuе should be put upon the building. Was the value of the building to be fixed at what it was worth to the lessors when it came back to them at the tеrmination of the lease, or only at its worth independent of any estate in the land, and to a stranger purchasing it with the view of rеmoving it elsewhere? While we entertain no doubt that the former basis, and not the latter, is the correct one, it is not be taken as a matter of course that the parties would agree in that matter, or that appraisers would thus construe the contract. Indeed it seems probable that the two appraisers who made the estimate of value in this case took the оther view. The point of the argument is that the appraisers were not merely to determine the simple matter of the valuе of specific property, but, necessarily, to construe the contract, and determine its legal effect. In such a case the parties had the same right to be heard before their cause was adjudged as they would have in any general аrbitration.

Such being our decision upon this point, most of the other questions ‍‌‌​‌​​​​​‌‌‌​‌‌​​​​‌‌‌​​‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌​‌‌​‌‌‌‍presented-in the briefs become immaterial, not аffecting the result.

It is, however, contended that the court erred in receiving in evidence the lease to Janney, Brooks & Eastman, because, having been *433blank as to the month and day of the commencement of the term of ten years when it was executed by Mrs. Brackett, the lessor, thе blank space appeared to have been afterwards filled by her husband and the lessees, she not being present. It mаy be doubted whether the circumstances did not justify the inference that she authorized the filling of this blank as was done. State v. Young, 23 Minn. 551. But, however that mаy be, there was evidence sufficient to show a subsequent recognition of, and acquiescence in, the lease as ‍‌‌​‌​​​​​‌‌‌​‌‌​​​​‌‌‌​​‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌​‌‌​‌‌‌‍thus completed, not only on the part of the lessors, but as well by this appellant. Hence the lease was properly in the case.

Judgment affirmed.

(Opinion published 54 N. W. Rep. 481.)