Eliot v. Coulter
| Decision Date | 02 December 1947 |
| Citation | 322 Mass. 86,76 N.E.2d 19 |
| Parties | ELIOT et al. v. COULTER et al. SAME v. TURNER et al. SAME v. ANDRAE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Bills in equity by Samuel Eliot and others, trustees, against Joseph C. Coulter and another, trustees, against Francis P. Turner and another, trustees under the will of James B. Pickett, and against Henry P. Andrae and another trustees under the will of Joseph Gahm, to have awards made under a lease and determining fair value of lands for purpose of fixing rent declared void, and restraining defendant lessors from collecting rent under such awards. From final adverse decrees, plaintiff appeal, and move to amend the bills.
Motion to amend bills denied. Interlocutory and final decree affirmed.Appeal from Superior Court, Suffolk County; Williams, Judge.
Before QUA, C. J., and LUMMUS, RONAN, and SPALDING, JJ.
J. J. Kaplan, of Boston, for plaintiffs.
A. B. Carey, of Boston, for defendants Coulter et al.
F. B. Turner and R. W. Hardy, both of Boston, for defendants Turner et al.
E. C. Thayer, of Boston, for defendants Andrae et al.
A part of the land now covered by the store building on Washington Street in Boston occupied by Wm. Filene's Sons Company was leased on May 29, 1911, to the then trustees of the Business Real Estate Trust of Boston, by the then trustees under the will of Luther Adams for the term of ninety-nine years beginning October 1, 1911, at an annual rental which on October 1, 1946, became ‘four and one half (4 1/2) per cent per annum of the fair valuation of the land comprised in the premises; said fair valuation to be determined at the end of the first thirty-five (35) years [that is, on October 1, 1946] and once every ten (10) years thereafter during the continuance of the lease, by three (3) disinterested parties or a majority of them, one to be chosen by the lessors, one by the lessees and one by the two so chosen; the expense of such appraisal to be equally divided between the lessors and the lessees it being understood however, that in no event shall the annual rental at any time during the continuance of this lease except as above provided, be less than eighteen thousand dollars ($18,000) net to the lessors. * * *’ The foregoing is the lease that is material to the case entitled as above, and numbered 58460 Equity in the Superior Court.
Another part of the land now covered by said store building was leased on May 31, 1911, to the said trustees of the Business Real Estate Trust of Boston by one George A. Dill, for a similar term. The lease provided that the rent for the period from October 1, 1946, to September 30, 1956, should be ‘four and one half per cent (4 1/2%) of the combined sum of (1) the fair value, at noon of August 1, A. D. 1946, of the land now comprised in the premises * * * and (2) twenty-two thousand dollars ($22,000) (said $22,000 being the estimated present value of the building now on the premises) per year for the next ten years of said term (that is, for the period from October 1, A. D. 1946, to September 30, A. D. 1956, inclusive) * * *.’ It was provided that at least sixty days prior to October 1, 1946, ‘the lessor, or his heirs or assigns, shall in writing designate some disinterested person as an arbitrator for the purposes herein mentioned, and the lessees or their representatives, successors or assigns shall in writing designate some disinterested person as an arbitrator for the purposes herein mentioned, and said two arbitrators so designated shall * * * in writing designate a third disinterested person as a third arbitrator for the purposes herein mentioned.’ It was provided that ‘the fair value of the land * * * as so determined and reported by said arbitrators or a majority of them shall be deemed the fair value of the land now comprised in the premises * * * for the period of ten years * * * with reference to which they shall have been designated, and four and one half per cent (4 1/2%) of the combined sum of (1) said fair value of the land now comprised in the premises * * * as so determined and reported and (2) twenty-two thousand dollars ($22,00) shall be the yearly rent for such period of ten years * * *.’
A third part of the land now covered by said store building was leased on May 1, 1911, to the said trustees of the Business Real Estate Trust of Boston by the trustees under the will of James B. Pickett for a similar term. The lease provided that the rent after October 1, 1946, should be ‘four and one half (4 1/2%) per cent per annum of the fair valuation of the land comprised in the premises, said fair valuation to be determined at the end of the first thirty-five years [that is, on October 1, 1946] and once every ten years thereafter during the continuance of the lease, by three disinterested parties, or a majority of them, one to be chosen by the lessors, one by the lessees and one by the two so chosen * * *.’
In 1946 the lessees then holding under the Adams lease appointed John C. Kiley to determine the fair value of the premises, the lessors appointed Alfred S. Beck, and those two appointed Robert S. Wayland. The same persons were chosen under the Dill lease. The same persons were chosen under the Pickett lease, except that Elliott Henderson took the place of Alfred S. Beck. Each of these three boards determined the fair value of the land for the determination of which it was appointed, by a majority of such board, said John C. Kiley dissenting. The valuations were made without hearing the lessees, although they asked to be heard. The lessees contend in each case that the valuation was grossly excessive, and was made upon unsound principles and methods of calculation. The lessees holding the three several parcels, on December 3, 1946, brought these bills, praying that the awards be declared void and restraining the lessors from claiming rent under them. The plaintiffs were required to file specifications. The several defendants demurred, and their demurrer...
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