264 F. 303 | 9th Cir. | 1920
(after stating the facts as above). It is contended that the award should be set aside for the reason that the appraisers, in adopting the computation which Folsom made as the basis for the finding, made no attempt to ascertain the exact thing submitted to them for determination, but determined only how much, in view of the earning capacity of the building which was on the land, the lessee could afford to pay for the use of the land, or, in brief, that tire appraisers did not decide the question which they were called upon to decide, but another. The evidence is-that the appraisers held
“Í listened to all that testimony, and for my own satisfaction I undertook to figure out what, in my own mind, the property would show a net return on, if adequately improved and adequately managed. * * * I also took into consideration the testimony of all the witnesses. The result which I reached absolutely represents my judgment as to the true value of the land without improvements.”
He further testified:
“The property was adequately improved, and would show as big a net return as any building that could be put on the properly at that time.”
Nichols took the position that the appraisers had no right to capitalize the building for the benefit of the ground; that their duty was simply and solely to fix the value of the ground, and the only thing they could do would be to raze the building from the ground, and take the present city ordinances into consideration, and build a hypothetical building under the present law, just as if that building did not exist. He objected to using the building as z basis for computation, for the reason that the building under the then existing ordinances of the city could not be built on that land, and that capitalizing it was not fair under the circumstances, but, he testified:
“I finally acceded to it in order to arrive at an appraisement.”
tie further testified that Folsom — u
“used this building instead of an hypothetical building. I didn’t object to the-rulo ho used, but I objected to his using this particular building as the basis of his rule, but I afterwards assented.”
Again Folsom testified:
“What I was undertaking to do in making this computation was to arrive at the value of the ground. * * * I was trying to arrive at what sum of money that ground was worth, if adequately improved, adequately rented, and properly managed.”
“If the land and building wore owned by the same person, I would use precisely the same method and make the same charges for amortization, taxes, Insurance, and interest upon the value of the building. The fact that the building is owned separately from the land does not enter into the problem at all.”
We are not convinced that the computation made by Mr. Folsom was improper to be used to aid in determining the value of,the land. It was not the sole basis of the valuation arrived at. It was used in connection with the testimony of witnesses who gave their estiróte? of the value of the land,
“there must be something more than an error of judgment, such as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by evidence.”
The court went on to say:
“Courts should be careful to’avoid a wrong use of the word ‘mistake,’ and, by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards. The same result would follow if the court should treat the arbitrators as guilty of corrupt partiality merely because their award is not such an one as the chancellor would have given.”
The court below took the evidence to mean that Nichols, who contended to the last for the right to call other witnesses in rebuttal, did not purpose to ask Monis how he should vote on the figure announced by Folsom, but sought to ascertain whether the appellee had some testimony to present before a final vote was taken, and was of the opinion that the conduct of Nichols, while not highly punctilious, was open, unconcealed, and not unfair or prejudicial to the appellant. To this we agree. Heitman, according to the record, was the agent of the appellant, and at one time he had represented the appellant in an effort to arrive at an agreement with the appellee as to the valuation of the land. Nichols, on the other hand, had no interest in the appellee corporation, or in the result of the appraisal. It has been held that one who appoints his agent an appraiser will not he heard to complain that the other appraiser was an agent of the opposing party. Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 448, 496. In Fox v. Hazelton, 10 Pick. (Mass.) 275, Chief Justice Shaw said:
•‘And it is not unfrequent in practice for each party to select a friend known to have formed and expressed opinions upon the subject, and preferences for the parties respectively, trusting that these opposite prejudices will balance each other, especially with the aid of an impartial umpire. Without commending the expediency of such references,' the court can entertain no doubt of the validity of an award made by such referees, nor could the parties be heard to impeach it on this ground.”
Where no corrupt motive appears, the fact that one arbitrator talked with one of the parties regarding the case does not require that the award be vacated. 5 C. J. 188; Flatter v. McDermitt, 25 Ind. 326; Morville v. American Tract Ass’n, 123 Mass. 129, 139, 25 Am. Rep. 40; City of Bridgeport v. Eisenman, 47 Conn. 34; Adams v. Bushey, 60 N. H. 290; Wood v. Auburn & R. R. Co., 8 N. Y. 160.
The decree is affirmed.