Biddle v. McDonough

Citation15 Mo.App. 532
PartiesANNIE E. BIDDLE, Appellant, v. THOMAS MCDONOUGH, Respondent.
Decision Date27 May 1884
CourtCourt of Appeal of Missouri (US)

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

T. T. GANTT, and A. J. F. LEE, JR., for the appellant.JOHN N. STRAAT, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action in the nature of a suit in equity, in which the plaintiff seeks to have the court adjudge and decree what shall be deemed the value of a certain lot demised by the plaintiff to the defendant, upon which valuation the rent to be paid shall be computed under the terms of the lease. It was alleged and proved that in January, 1870, the plaintiff, being the owner of a lot of ground situated in block No. 558 in the city of St. Louis, fronting thirty feet on Seventh Street, and extending one hundred and twenty-five feet eastwardly to a public alley, entered into a lease with the defendant by which she demised the same to him for the term of thirty years from the first day of January, 1870, upon the following conditions in respect of the rent to be paid: “Yielding and paying the yearly rent of $245 for the first ten years, and for each succeeding period of ten years of said term the yearly rent of six per cent on the value of the ground, to be fixed at the commencement of each said period of ten years by the unanimous appraisement of disinterested men, one chosen by the lessor and the other by the lessee; and in case the appraisers do not agree, others to be chosen till an appraisement be made, as aforesaid; and if such appraisement be delayed beyond rent day the lessee to pay on account at the rate of six per cent on the last valuation of the ground for city taxes, and the residue when the rent be fixed as aforesaid. And the lessee agrees to pay the rent by equal instalments on the second days of January and July in each year.” The lessee also covenanted to pay general and special taxes during the term for which the premises were demised.

The plaintiff in her petition, after setting out the terms of the lease, makes the following allegations: “Plaintiff states that she did, on the last mentioned day, and on many times thereafter, and still is ready to do, everything on her part provided to be done on her part by said lease in order to secure a proper appraisement of said property for said period as provided by said lease, in order that it might be properly determined what amount of rent should be due by defendant for said lot during said period; but that said defendant has, contrary to his duty, to good faith, and to the spirit of said agreement, and with intent to deprive plaintiff of her just rights in said property, failed and refused, and still does fail and refuse, to appoint a disinterested person to make the appraisement of said lot as provided for by said lease, and as above set forth; that instead of appointing such disinterested person, when requested by plaintiff so to do, defendant did, with the intent aforesaid, from time to time, appoint to make such appraisement on his part persons who were either interested in the making of such appraisement, or not competent to make the same justly and properly, and did instruct them not to agree to any award fixing said premises at its actual value.

Plaintiff further states that she has several times appointed, as provided by said lease, a competent and disinterested person--each appointment being of a different person--to appraise said lot for her, and did, at the time of each of said appointments, request said defendant to appoint a person with like qualifications to appraise said lot for him; but plaintiff says that in no instance was the person so by her appointed able to come to any agreement with any person appointed by said defendant, as above mentioned, for the reason that the appraisement made in every instance by every person so appointed by said defendant was incorrect, and this plaintiff would have been greatly injured if any of such appraisements had been agreed to by any person so appointed by her.

Plaintiff further states that an appraisement of said lot can not be made in the manner contemplated by said lease; that this plaintiff would be put to further great and useless charges and expense by any further attempt on her part to cause said lot to be appraised in the manner contemplated by said lease; that she has been greatly injured by reason of said appraisement not having been made, and that she will be further greatly injured if the making thereof be further delayed; because she avers that she is unable to determine what is the amount of rent due, or to become due, for said lot to plaintiff, or to collect the same; that by reason thereof she greatly fears said rent will be lost to her; that a very large sum, to wit, the sum of $1,000, is now due to her for said rent.”

The defendant, in his answer, after admitting the making of the lease, denies these allegations; avers that he has paid the rent accrued under the lease from January 1, 1880, up to and including July 1, 1882; and further answering says, “that in every instance when requested by plaintiff to select an appraiser to ascertain and fix the value of said leased premises, he did select as his appraiser a disinterested and competent person to appraise said ground, and that the persons selected by plaintiff to appraise the same have been in each instance interested and incompetent persons, and that the failure upon the part of appraisers so selected to make a unanimous appraisement was in each instance the fault of plaintiff's appraisers, who were unwilling to appraise said ground at a fair and reasonable value.”

At the hearing in the circuit court the plaintiff offered evidence to the effect that on the 12th of February, 1880, she notified the defendant that she had appointed Mr. E. A. Manny as her appraiser under the lease, and required him to appoint an appraiser to act with Mr. Manny in fixing the the value of the premises in accordance therewith. The defendant accordingly appointed Mr. P. F. Madden. These gentlemen met, viewed the premises, and could not agree; and, concluding that it was useless to confer any longer, separated. Mr. Manny valued the ground at $100 per front foot; Mr. Madden would not concede that it was worth more than $50 per front foot. There is a slight discrepancy on this point between the testimony of Mr. Manny and Mr. Madden; the former testifying to having valued the ground at $100 per front foot, and that Mr. Madden would not agree to a valuation of more than half that sum; while Mr. Madden testified that Mr. Manny valued it at $110 per front foot, while he, Madden, valued it at from $50 to $55 per front foot. Mr. Manny testified that Mr. Madden said something about having instructions not to value the property above a certain figure; Mr. Madden, on the contrary, denies that he was under any instructions from the defendant. He says: “Mr. McDonough did not say a word to me as to how I should value it. I acted wholly on my own judgment. Before appraising the property I consulted records in the assessor's office to see if there had been any sales in that neighborhood. I did not say to Manny that under no circumstances would I go above $50 per foot. If he had given me good reason for going above $50 I would have done it.”

These appraisers, having been unable to come to an agreement, the plaintiff, in July, 1882, sent another written notice to the defendant, informing him that she had appointed Mr. Ringrose J. Watson as her appraiser under the terms of the lease, and requiring him to appoint an appraiser on his part. He accordingly appointed John S. Costello. These two appraisers met and compared their views, with substantially the same result which had attended the conference of the two former appraisers--they could not agree. Mr. Watson was of opinion that the ground was worth $100 per front foot; Mr. Costello was of opinion that it was not worth more than $50 per front foot; and so this second effort at an appraisement failed. The plaintiff made no further effort to fix a valuation in the manner pointed out by the lease, but she has brought the present suit in equity, asking the circuit court to fix such valuation.

A good deal of conflicting evidence was introduced at the hearing, as to the value of the property. The plaintiff's evidence on this point of her case consisted of the testimony of several persons acquainted with the values of real estate in that vicinity, who were of opinion that the ground was worth, at the time of the hearing, $100 per front foot. On behalf of the defendant, it was shown that the property was assessed for taxes at $45 per front foot; that it had depreciated very much since 1870, the population having changed for the worse since then; and, generally, that the property was of a value ranging from $40 to $60 per front foot.

In the view which we take of the case, we are not called upon to make a finding of the facts upon this conflicting testimony. By the lease, the parties made a contract for themselves. The defendant stands ready and willing to perform it as made. This being so, we can not make another and a different contract for them, and then execute it for them by our own methods. By that instrument they agreed that the valuation for the purpose of computing the rent after the expiration of the first ten years of the term should be fixed “by the unanimous appraisement of disinterested men, one chosen by the lessor and the other chosen by the lessee.” If their agreement had ended here, and if, upon an agreement so ending, the plaintiff had come into court and had shown that it was entirely impossible to fix any valuation in the manner thus agreed upon, then we should have to consider the question whether a court of equity would have the power to interpose, and to fix a valuation for them. But the agreement did not stop here. The very contingency which has happened, of the appraisers being...

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    ..."no one questions" the continued validity of a partially performed lease but arbitration fails to fix an increase in rent. 239 S.W.2d at 307. Biddle reviewed a lease providing fallback provision setting rent based on a city tax assessment if the parties could not agree. 15 Mo.App. at 533. E......
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    ...may intervene and determine value and fix the rental. Tscheider v. Biddle, Fed.Cas.No. 14,210, 4 Dill., U.S., 58. In Biddle v. McDonough, 15 Mo.App. 532, a thirty-year lease fixed the rent for the first ten-year period and then provided that the rent for subsequent ten-year periods should b......
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