Arnot v. Alexander

• Decision Date: 31 March 1869
• Citation: 44 Mo. 25
• Parties: JESSE ARNOT et al., Respondents, v. BASIL W. ALEXANDER, Appellant.
• Court: Missouri Supreme Court

44 Mo. 25

JESSE ARNOT et al., Respondents,

v.BASIL W. ALEXANDER, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Rankin & Hayden, for appellant.

Equity will not give certainty and definiteness to a contract which, as in the case at bar, the parties have left utterly uncertain and indefinite. It is only where the terms of a covenant to renew are express and unequivocal that specific performance will be enforced. (Taylor on Land. and Ten. §§ 332, 333; Fry on Spec. Perf. § 203; Robinson v. Kittelas, 4 Edw. Ch.; Whitlock v. Duffield, 1 Hoff. Ch. 110; Hammer v. Eldowney, 46 Penn. St. 334.) The phrase “as much as any responsible parties will agree to give” does not mean merely “the highest market price.” The defendant might possibly have found parties who, from their circumstances or peculiar facilities for the business, were willing to go beyond the highest market price; and if so, how could the court below, by a construction, deprive him of a chance--no matter how small a chance--which his contract gives him? The present case must not be confounded with that class of cases where, though some term of the contract has not been defined, a method has been expressly pointed out by the parties by which it may be defined, as where the parties say “at such sum as shall be appraised,”“at such sum as shall be fixed upon by indifferent persons,” etc., etc. These cases go further than many courts have approved, but they are defended on the ground that a specific and particular mode has been by the parties themselves pointed out, and that the event has only to follow out that mode as the parties would have done themselves; but where that particular mode cannot be followed out, or where not only a particular mode but particular parties are selected, and such parties can not or will not act, equity will not attempt to enforce the contract. (Wilkes v. Davis, 3 Meriv. 506; Morgan v. Milman, 17 Eng. L. and Eq. 203; Baker v. Glass, 6 Munf. 212; Wallingford v. Wallingford, 6 Har. & J. 490; Bromley v. Jeffries, 2 Vernon, 415; Cooth v. Jackson, 6 Ves. Jr. 34; Milnes v. Gery, 14 Ves. 400; Blundell v. Brettargh, 17 Ves. 232; Garnley v. Duke of Somerset, 19 Ves. 429; Agar v. Marklew, 2 Sim. & S. 418; Darbey v. Whittaker, 4 Drew. 134; Ld. Ormond v. Anderson, 2 B. & Beat. 363; Stratford v. Bosworth, 2 Ves. & B. 341.)

Cline, Jamison & Day, for respondents.

I. The petition contains a cause of action; for the contract in issue is not one for a new lease, but a covenant to renew the old one, and adopts all of its terms and covenants, except as to time and the amount of rent to be received in the renewal. (9 Ves. Jr. 325; 3 Atk. 83; 7 East. 237.)

II. The covenant does not fix the amount of rent to be reserved, but points out the means whereby it is to be and can be determined. (Hall v. Warren, 9 Ves. Jr. 605; Blackmore v. Boardman, 28 Mo. 420; Finney v. Cist, 34 Mo. 303; Garnhart v. Finney, 40 Mo. 449.)

III. This court has repeatedly held that a covenant for renewal is valid and binding when the rent to be reserved is to be determined by arbitrators, one to be chosen by each party, and they to choose the third, although the lessor refuses to appoint any one to arbitrate. Here the court will hear evidence and fix the value of the rent, and decree specific performance or hold the lessor liable in damages for his breach of covenant. (28 Mo. 420; 40 Mo. 449.)

CURRIER, Judge, delivered the opinion of the court.

This is a petition in the nature of a bill in equity, praying for the specific execution, on the part of the defendant, of his covenant to renew a lease. The covenant is in these words: “If this lease shall not be terminated by forfeiture or any other cause before the expiration of the five years, then said elssee or his legal assigns shall be entitled to a renewal of the same for five years longer; provided said parties can agree upon terms, or that said lessee is willing to give as much as any other responsible party will agree to give.”

The conditions upon which this covenant for renewal was to be executed have been complied with, and it is not insisted that its non-execution would not be injurious to the plaintiffs. The case would therefore seem to fall within the jurisdiction of chancery, and warrant a decree for a specific performance of the covenant on the part of the lessor. But it is insisted on the part of the defendant that the covenant is vague and uncertain; that equity will not give certainty and definiteness to an obligation which the parties have left uncertain and indefinite; that it is only where the terms of a covenant for renewal are express and unequivocal that specific performance will be enforced in chancery. The uncertainty and indefiniteness complained of, upon which the defense is rested, are supposed to attach to the provision respecting the quantum of rent to be reserved for the renewal term of the lease. The provision itself is express and unequivocal, although it fails to fix a specific amount of rent. That was to be determined by what other responsible parties would ““agree to give” at the expiration of the first term of five years. The amount of rent thus to be reserved is no more uncertain or indefinite than it is in all that class of cases where the amount of rent for the renewal terms is left to be determined by the...