Cooke v. Miller

• Citation: 54 A. 927,25 R.I. 92
• Parties: COOKE v. MILLER et al.
• Decision Date: 08 April 1903
• Court: United States State Supreme Court of Rhode Island

54 A. 927

25 R.I. 92

COOKE

v. MILLER et al.

Supreme Court of Rhode Island.

April 8, 1903.

Bill by Frank A. Cooke against Edwin P. Miller and others. On demurrer to bill. Demurrer overruled.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Francello G. Jillson and Cooke & Angell, for complainants.

Edward D. Bassett, for respondents.

STINESS, C. J. A written lease provided that at the end of the term the lessor should have the right to buy buildings on the land, built by lessee, at a price to be settled by three arbitrators; one to be chosen by each party, and the third by these two. At the end of the lease the owners took possession of the land, and have since retained it. The parties chose arbitrators, but they were unable to agree. After their failure other arbitrators were chosen, and these also failed to settle a price; whereupon the lessee brings this bill to have the value of the buildings taken by the respondents settled by a master or in some other way. The respondents demur to the bill on the grounds that the facts do not show a case for relief in equity, and that the relief prayed for cannot be given.

This question has been one of rare occurrence, because in most cases a unanimous award is not required. In Cooth v. Jackson, 6 Ves. Jr. 12 (1801), Lord Chancellor Eldon said he was not aware of any case, where the judgment of arbitrators is not given in the time and manner of the agreement, that the court have substituted themselves for the arbitrators, and made the award. It is to be noted that this decision related to an executory agreement. See, also, Milnes v. Gery, 14 Ves. Jr. 400. Blundell v. Brettargh, 17 Ves. Jr. 232, pointed to an exception to the statement in Cooth v. Jackson in Lord Eldon's question, "Then was there a part performance or acquiescence?" There being none, the decision was the same as in the previous case. In Gregory v. Mighell, 18 Ves. Jr. 328, under an agreement for a lease for 21 years, rent to be fixed by arbitrators, the tenant entered, expended money on the place, and arbitrators were appointed by the parties. The lessor refusing to sign arbitration bonds, the arbitrators refused to proceed; and thus the matter stood for several years, when the tenant brought the bill for specific performance. Sir William Grant, master of the rolls under Eldon, as lord chancellor, referring to the contract, said: "it is in part performance, and the court must find some means of completing its execution. * * * The amount must be fixed in some other mode, and it seems to me that it should be ascertained by the master, without sending it to another arbitration, which might possibly end in the same way." In Dinham v. Bradford, 5 L. R. Ch. App. (1869) 519, it was agreed that one partner should purchase, at the close of the partnership, the share of the other, at a valuation by two persons. Trouble arising between the partners, no arbitrators were appointed, and a bill was filed for a valuation. The defendant relied on the doctrine that an agreement for sale, price to be fixed by arbitrators, with nothing more, cannot be carried into effect by the court. Lord Hatherley, L. C, said: "This case is not like that of the sale of an estate, the price of which is to be settled by arbitration, but is a case in which the whole scope and object of the deed would be entirely frustrated if the court were to apply the well-known doctrine to the present circumstances. In cases of specific performance the matter is very plain and simple. One...