Biddle v. Ramsey

• Decision Date: 31 March 1873
• Citation: 52 Mo. 153
• Parties: JAMES BIDDLE, Plaintiff in Error, v. JOHN RAMSEY, Defendant in Error.
• Court: Missouri Supreme Court

52 Mo. 153

JAMES BIDDLE, Plaintiff in Error,

v.JOHN RAMSEY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1873.

Error to St. Louis Circuit Court.

Thos. T. Gantt, for Plaintiff in Error.

A party cannot by his misconduct prevent an award, and take advantage of it, in equity. (Morse vs. Merest, 6 Madd. Ch., 25.) An agreement of parties not to sue each other, in the adjustment of any difficulties in the courts of the country, but to submit them all to arbitration, will hardly be pleaded successfully in bar of such an action. (2 Chitty's Gen. Pr., 80, and cases cited in notes.) Nor will a court of equity decree a specific performance of such an agreement. (1 Chitty's Gen. Pr., 851.) The defendant is protected from unlawful detainer. (1 W. S. 732, § 27.)

We have no adequate remedy at law. Under the covenant, we are entitled to an action; no such thing can be had at law.

We can, at most, only have at law damages for the breach of the agreement to arbitrate. But whether such damages are recoverable has been doubted, (12 Chitty Gen. Pr., 80, and, cases cited in notes) certainly discourages such an action.

Even if full damages were recoverable here, yet we are entitled to specific performance of our contract. We ask the performance of defendant's covenant, which the court will itself judicially ascertain, doing what the arbitrators failed to do owing to defendant's misconduct. (18 Ves., 429; Morse vs. Merest, 6 Madd. Chan., 25.) If we are entitled to any remedy, we are entitled under our covenant, and of this we ask the benefit, as nearly as may be, cy pres. We cannot have a specific performance of the contract, to refer a certain controversy to arbitration. The matters which were thus provided for must, by reason of the fraud of defendant, be determined judicially.

Samuel N. Holliday, for Defendant in Error.

There is no case at law or in equity, where if an award is not made at the time in the manner stipulated, the court have substituted themselves for the arbitrators and made the award. (Blundell vs. Brettargh, 17 Ves., 231; Wilks vs. Davis, 3 Meriv, 506; Morgan vs. Milman, 17 Eng. L. & Eq., 203; Wallingford vs. Wallingford, 6 Har. & J., 490; Baker vs. Glass, 6 Munf., 212; Bromley vs. Jefferies, 2 Vern., 415; Cooth vs. Jackson, 6 Ves. J., 34; Gourlay vs. Duke of Somerset, 19 Ves., 429; Agar vs. Marklew, 2 Sim. & S., 418; Darbey vs. Whittaker, 4 Drew., 134.)

An agreement to submit a question to arbitration, will not be enforced in equity, but must depend on the good faith and honor of the parties, or to such remedy in damages for a breach thereof as the law has provided. (Tobey vs. The County of Bristol, 3 Story, 800.)

There is no allegation in the petition that the plaintiff ever demanded possession of the premises from the defendant, or that the defendant ever refused to surrender them. There is no allegation that the defendant ever refused to pay the rent.

The defendant is only bound by that contract; the court will not make another contract for him. If the plaintiff is damaged by the fraudulent conduct of the defendant, or by his violation of any of the provisions of the lease, he is responsible in damages.

The plaintiff has an adequate remedy at law, (Abeel vs. Radcliffe, 13 Johns, 296; same parties, 15 Johns, 505.)

The plaintiff can turn the defendant out by unlawful detainer. The defendant cannot set up the covenant for renewal in defense, that is only to be enforced in a court of equity. (Finney vs. Cist, 34 Mo., 303.) And if the defendant attempted by bill in equity to restrain the plaintiff from getting possession under his writ of unlawful detainer, because of the covenant for renewal, it would be a complete defense to the suit in equity for the plaintiff to allege and prove that the defendant fraudulently prevented the assessors from agreeing as to the yearly value.

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in Chancery. The petition in substance sets forth that John Biddle, on the first day of January, 1853, was the owner of certain premises in the City of St. Louis, and that on that day, said Biddle demised said lot of ground to defendant for the term of ten years from and after said date, at a certain yearly rent as ascertained and set forth in a certain deed of lease of that date, executed by said Biddle and said defendant Ramsey; that by the terms of said lease, said defendant was during the first five years of said term, to pay to said Biddle $200 semi-annually, and for the remaining period of five years was to pay in like manner $250 per year and also all taxes; that said lease also provided that within the last quarter year of the said term of ten years, Biddle and Ramsey, or their respective legal representatives, should each appoint a disinterested assessor whoshould assess at a fair value all brick and stone buildings then standing on said premises and also the fair yearly rent on value of said premises considered as a vacant lot of ground, for another term of ten years, commencing at the expiration of the first term. The said assessors then to be chosen were to call in a third assessor, of like qualifications with themselves to aid them in making such valuation, and when such assessors should unanimously agree in such estimate, said Biddle or his assignee, etc., should have the option of purchasing the brick and stone buildings and improvements erected and being on the demised premises, at the end of said first term of ten years, or giving to defendant or his assigns a further lease of ten years of said premises at the yearly rent unanimously fixed by said assessors, and containing the same covenants as to mode and time of paying rent and taxes as above mentioned; and if these assessors failed to make a unanimous award, that then, each party to the lease was again to nominate and choose an assessor on their respective parts and so on; that before the end of the first period of ten years, John Biddle died, and the title of the demised premises subject to said lease was vested in plaintiff who within the time limited appointed an assessor, and the defendant did the like; that said assessors failed to unanimously agree respecting the yearly rent of said premises, or the value of said improvements, etc.; that several assessors were in this way appointed by the parties respectively as aforesaid; that the assessors thus from time to time chosen, and the third person by them selected, failed to agree unanimously, and that this selection of assessors continued from the latter part of 1862 until 1868; that in each and every case as aforesaid, the plaintiff selected on his part an impartial and unbiased person as...