39 Iowa 192 | Iowa | 1874
The plaintiffs in these suits, severally, leased portions of the premises in dispute from Rev. J. A. M.
In December, 1871, the plaintiffs selected J. M. Eldridge, a land agent of the city of Davenport, as one of the appraisers to appraise the property under the terms of the lease, and of such selection they gave notice to W. T. Dittoe, Esq., the attorney of Bishop Hennessy. The bishop did nothing toward having the property appraised until so me‘time about the middle of May, 1872, when he sent his brother and business agent, D. J. Hennessy, from Dubuque, where both resided, to Davenport, authorized and chosen to act as one of the appraisers. The said D. J. Hennessy came to Davenport and, without any notice to any of the plaintiffs that he was acting as an appraiser on behalf of his brother, Bishop Hennessy, procured the appointment of James Thompson as the third appraiser, and they, together with Eldridge, chosen by plaintiffs, proceeded to, and did, without notice to, or knowledge by any of the plaintiffs, appraise said property, and thereupon notified each of plaintiffs of such appraisement after it was made,
One of the grounds of complaint on the part of plaintiffs is that the appraiser appointed on the part of Bishop Hennessy was his brother and confidential business agent. That he was such there is no manner of doubt, indeed it is not questioned that he did sustain these relations, but it is claimed that since the lease authorized each party to select an individual for him-' self and those two to select a third, that it was “ optional with the parties to select whomsoever they chose, without restriction as to interest or partiality.”
'. It seems to us that such a doctrine cannot be admitted. The very fact that the parties to the lease stipulated for the submission of the question of the value of the leased premises, as a basis for the. rent, to persons to be chosen in the manner provided, conclusively shows that they intended to have the value established by an impartial tribunal. The object and purpose in providing ’for an appraisement, in the mode mentioned in the leases, it is manifest was to secure a fair and just valuation.of the leased premises as a basis for the second five years of the term. This purpose could be attained only by the selection of fair and impartial persons as appraisers. The person to be selected by the respective parties ought not to be respectively the agent of the parties. If this were allowed it would be the same in effect as the parties themselves, acting in their own behalf as appraisers, for what a man does by his agent he does by himself. The persons selected as appraisers should be indifferent between the parties. They should be impartial judges. The fact that, by the stipulations of the lease, each party was authorized to chose one appraiser does not lead to the conclusion claimed by appellants. The authority to choose confers no authority to choose an improper person. This provision of the lease merely provides a mode by which the tribunal shall be created, which is to determine the question of the value of the property for the purposes of .the lease. That the parties expected that this' should be an (impartial tribunal that would place a fair and just valuation
True, it is not stated in express words that the appraisers shall be Ci disinterested,” “ impartial,” or “ indifferent ” persons, but in the absence of anything to manifest a contrary intention this must be presumed.
For the reasons that one of the appraisers was the brother, of the defendant and his business agent, and that these facts’ were not known to the plaintiffs until after the appraisement was made, the court below decided rightly in setting the appraisement aside.
The plaintiffs are entitled to an impartial tribunal to fix the value of the leased premises on the first day of January, 1872, as provided in their respective .leases.
. The judgment of the court below is
Affirmed.