Emery v. Central Trust & Safe Deposit Co.
| Decision Date | 06 May 1913 |
| Docket Number | 2,292. |
| Citation | 204 F. 965 |
| Parties | EMERY et al. v. CENTRAL TRUST & SAFE DEPOSIT CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
In 1884 the predecessors in interest of appellants (whom we shall speak of as the 'Emerys') gave appellee a written lease of the front 63 feet of the first floor of the St. Paul Building in Cincinnati (together with two rooms in the basement), to be occupied by the lessee as 'a bank, trust company, and safe deposit.' The lease ran until May 31 1909, at an annual rental of $8,000. It contained this provision: 'At the expiration of the term of this lease said lessee shall have the privilege (having given one year's written notice of its desire therefor) of renewing this lease for another term of twenty-five (25) years commencing June 1, nineteen hundred and nine (1909), upon the same terms and conditions herein contained, except the money rental, which shall be fixed by three appraisers chosen in the usual way.' In 1904 the Emerys gave appellee another lease, covering the remainder of the ground floor of the building (except certain hallway rights not necessary to specify), together with a room on the second floor. This lease likewise ran until May 31, 1909. It contained the same provision for renewal as the 1884 lease.
On December 17, 1910, appellee filed its petition in the court of common pleas for Hamilton county, Ohio, against the Emerys, setting up the lease of 1884 and the renewal privileges mentioned, and alleging that it had exercised its privilege of renewing the lease for a further term of 25 years, beginning June 1, 1909, on the same terms and conditions as contained in the lease (except the money rental), and had given notice thereof and of its readiness to choose the appraisers to fix the money rental, and to comply with all the other terms required by the lease. It further alleged that, pursuant to such terms, it appointed one appraiser and the Emerys another, 'to fix the money rental' to be paid under the renewal term; that the appraisers (first, the two selected by the parties, and later with the addition of a third chosen by the other two), with the aid of briefs and arguments of the parties and their counsel upon both facts and the law, and (in the case of two of the appraisers) after receiving opinions from their own personal and independent counsel as to their duties and the law governing the basis of rental appraisal, were unable to agree, and (because the parties thereto could not agree) even after offering to accept as their own any conclusion the parties might agree upon as to the rental or the rules governing its ascertainment; and that the appraisers had accordingly filed with the parties their final report of disagreement on the questions submitted, with their reasons therefor and conclusions thereunder, and have asked to be and have been, 'with the consent of plaintiff and defendants hereto, discharged. ' The petition further alleged that 'in view of the widely divergent views of said appraisers, of said parties, of the counsel of said parties and of the disinterested counsel of two of said appraisers, the questions involved in this ascertainment of the rental for said new term, both of fact and of law, can never be finally settled and determined, unless the said new rental for said renewed term be ascertained and fixed by a court having jurisdiction and power finally to determine all of said questions, and that any further attempt to settle and determine said matters, other than by an action in and adjudication by such court, will only result in delay and needless expense to the plaintiff and defendants. ' The court was accordingly asked to determine the rental to be paid during the renewed term.
On the same 17th day of December, appellee filed its petition in the superior court of Cincinnati against the Emerys, for relief with respect to the 1904 lease, making substantially the same allegations (so far as applicable) and containing the same prayer for relief as in the suit in the court of common pleas. The Emerys (appellants) removed both suits to the District Court of the United States, by reason of diverse citizenship of the parties.
Before answering these petitions, appellants moved for a consolidation of the two suits, and that the plaintiffs therein be required to replead according to the practice in equity. Before the motions were passed upon, answer was filed to each petition, substantially admitting, so far as material here and except as herein stated, the allegations referred to. The answer contained this clause: ' The answer further stated that appellee had refused to appoint other appraisers to fix the money rental for the renewed term, and therefore defendant denied that appellee had 'made every effort to settle said controversy.'
On June 3, 1911, appellants filed in the court below what they denominated a cross-bill, setting up the two leases, together with the provision for renewal, alleging that defendant came into possession, by virtue of the two leases, of the whole of the ground floor of the building (except the hallway rights before mentioned); appellee's rightful removal, at a large expense, of a brick wall, existing when the 1904 lease was made, between and separating that part of the ground floor premises included in the 1884 lease and that included in the 1904 lease, thereby throwing the two ground floor premises into one, and making other alterations and improvements and additions 'for the purpose of harmonizing in the matter of usefulness and appearance the two premises,' whereby the value of each of the premises relative to each other was alleged to be greatly increased and that ever since June 1, 1904, the appellee has used the two premises as one. The bill alleged the notice by appellee of its exercise of the privilege of renewing both leases, the selection of appraisers to fix the money rental on renewal, the futile attempt of the appraisers and parties to agree upon the rental, substantially (so far as material here) as in the bills filed in the state courts, except that the reason for such failure of the appraisers to agree was specifically alleged to be a difference of opinion as to whether the money rental for the renewal period should be fixed with reference to the physical condition of the two premises on May 31, 1909, when the original terms of both leases expired, or whether with reference to that condition on May 1, 1904, when defendant took possession under the 1904 lease. The bill alleged that this divergence of views as to the basis of appraisement would prevent any appraisement of the rental being...
To continue reading
Request your trial
-
General Electric Co v. Marvel Rare Metals Co
...which is reviewable under section 129 is sustained by reason and supported by the weight of judicial opinion. Emery v. Central Trust & Safe Deposit Co. (C.C.A.) 204 F. 965, 968; Ward Baking Co. v. Weber Bros. (C.C.A.) 230 F. 142. Historical Pub. Co. v. Jones Bros. Pub. Co. (C.C.A.) 231 F. 6......
-
Miller Hatcheries v. Buckeye Incubator Co.
...Ed. 1169; Pittsburgh, etc., Ry. Co. v. B. & O. R. Co. (C. C. A.) 61 F. 705; Odbert v. Marquet (C. C. A.) 175 F. 44; Emery v. Central Tr. & Safe Dep. Co. (C. C. A.) 204 F. 965; Cutting v. Woodward (C. C. A.) 234 F. 307; Radio Corp. v. J. H. Bunnell & Co. (C. C. A.) 298 F. 62; Steel & Tube Co......
-
Hancock Oil Co. v. Universal Oil Products Co.
...order which is reviewable under section 129 is sustained by reason and supported by the weight of judicial opinion. Emery v. Central Trust & S. D. Co. 6 Cir., 204 F. 965, 968; Ward Baking Co. v. Weber Bros. 3 Cir., 230 F. 142. Historical Pub. Co. v. Jones Bros. Pub. Co. 3 Cir., 231 F. 638, ......
-
New Amsterdam Casualty Company v. United States
...of jurisdiction of the appeal was simply overlooked. 6 See 6 Moore's Federal Practice, Paragraph 54.14. 7 Emery v. Central Trust & Safe Deposit Co., 6 Cir., 1913, 204 F. 965; Marine Midland Trust Co. of New York v. Eybro Corporation, 2 Cir., 1932, 58 F.2d 165, 168, 169; Mottolese v. Preston......