Estabrook v. Stevenson

• Decision Date: 18 February 1896
• Docket Number: 6139
• Citation: 66 N.W. 286,47 Neb. 206
• Parties: CAROLINE A. ESTABROOK, EXECUTRIX, APPELLEE, v. SAMUEL G. STEVENSON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

66 N.W. 286

47 Neb. 206

CAROLINE A. ESTABROOK, EXECUTRIX, APPELLEE, v. SAMUEL G. STEVENSON ET AL., APPELLANTS

No. 6139

Supreme Court of Nebraska

February 18, 1896

APPEAL from the district court of Douglas county. Heard below before DOANE, J.

AFFIRMED.

Arthur C. Wakeley, for appellants:

Payment of the sum awarded was a condition precedent to the termination of the lease. (People's Bank v Mitchell, 73 N.Y. 406; Clemens v. Murphy, 40 Mo. 122; Friar v. Grey, 5 Exch. [Eng.] 584; Cadby v. Martinez, 11 Ad. & E. [Eng.] 720; Pomroy v. Gold, 43 Mass. 500; McFadden v McCann, 25 Iowa 252; Goodwin v. Lynn, 4 Wash. C. C. [U.S.] 714; Wells v. Smith, 2 Edw. Ch. [N.Y.] 78; Porter v. Shephard, 6 T. R. [Eng.] 665; Kerr v. Purdy, 51 N.Y. 629; Jones v. Barkley, 2 Doug. [Eng.] 690; Parmalee v. Oswego & S. R. Co., 6 N.Y. 79; Commonwealth v. Pejepscut Proprietors, 7 Mass. 399; Dwiggins v. Shaw, 6 Ired. Law [N. Car.] 46; Mecum v. Peoria & O. R. Co., 21 Ill. 534.)

Impossibility of performance will not relieve from the consequence of a condition precedent unperformed. (3 Am. & Eng. Ency. of Law 901; School Trustees v. Bennett, 27 N.J.L. 513; Jones v. United States, 96 U.S. 29; The Harriman, 76 U.S. 172; Dermott v. Jones, 2 Wall. [U.S.] 1; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N.Y. 487; Youqua v. Nixon, 1 Peters [U.S.C.C.] 221; Mill Dam Foundry v. Hovey, 38 Mass. 441; Ford v. Cotesworth, 4 L. R., Q. B. [Eng.] 134; Bunn v. Prather, 21 Ill. 217; Williams v. Vanderbilt, 28 N.Y. 222; White v. Mann, 26 Me. 368.)

The award was valid, and upon Estabrook's refusal to pay, his right to terminate the lease was at an end. (Pearson v. Sanderson, 128 Ill. 88; Norton v. Gale, 95 Ill. 533; Straw v. Truesdale, 59 N.H. 111; Garr v. Gomez, 9 Wend. [N.Y.] 661; Garred v. Macey, 10 Mo. 161; Curry v. Lackey, 35 Mo. 389; Leeds v. Burrows, 12 East [Eng.] 1; Elmendorf v. Harris, 5 Wend. [N.Y.] 516.)

Estabrook & Davis, contra:

The award was invalid, and upon the arbitrators' refusal to further act, Estabrook's only recourse was to the courts. (State v. Jackson, 36 Ohio St. 283; Smith v. Boston C. & M. R. Co., 36 N.H. 458; Peters v. Newkirk, 6 Cow. [N.Y.] 103; Falconer v. Montgomery, 4 Dall. [Pa.] 232; Passmore v. Pettit, 4 Dall. [Pa.] 271; Chambers v. Crook, 94 Am. Dec. [Ala.] 638; Emery v. Owings, 48 Am. Dec. [Md.] 580; Curtis v. City of Sacramento, 64 Cal. 102; Elmendorf v. Harris, 23 Wend. [N.Y.] 628; Caldwell v. Dickinson, 13 Gray [Mass.] 365.)

Reference was also made to the following cases: Reformed Protestant Dutch Church v. Parkhurst, 4 Bosw. [N.Y.] 491; Copper v. Wells, 1 N.J.Eq. 10; Berry v. Van Winkle, 2 N.J.Eq. 269; Conner v. Jones, 28 Cal. 59; Frey v. Campbell, 3 S.W. [Ky.] 368; Montgomery v. Chadwick, 7 Iowa 114.

RYAN, C. IRVINE, C., not sitting.

OPINION

The facts are stated by the commissioner.

RYAN, C. J.

On May 1, 1884, Experience Estabrook entered into a written contract with Samuel G. Stevenson, by the terms of which Mr. Estabrook leased to Mr. Stevenson the south forty-four feet of lot 1 in block 43, in the city of Omaha, for the term of ten years. Immediately following the description of the term "ten years" there was this language: "Provided that said Estabrook shall have the privilege of terminating said lease at the end of five (5) years by giving sixty (60) days' notice in writing to said Stevenson of his intention so to do, and by paying said Stevenson the value of his improvements, to be determined by arbitrators, one to be chosen by each of the parties hereto, and they to choose a third in the event of disagreement." On January 30, 1889, Mr. Estabrook caused to be served upon Samuel G. Stevenson the following notice:

"To Samuel G. Stevenson Omaha, Neb.--SIR: In pursuance of the terms of your lease made the 1st day of May, 1884, I hereby notify you of my election to declare said lease at an end on the 1st day of May, A. D. 1889, and that I will pay you at that time the value of your improvements, such value to be determined by arbitration as provided in said lease. I hereby nominate as the arbitrator to act in my behalf Mr. James H. Baldwin, of Omaha, who will be ready to meet and arrange with such arbitrator as you may select at such time and place as you may indicate, and who will be present on the ground on said 1st day of May, 1889. You are further notified that the ground covered by said lease, and to which this notice applies, is south forty-four (44) feet of lot one (1), block forty-three (43), in said city of Omaha, Douglas county, Nebraska.

"Dated at Omaha, Neb. January 30, 1889.

"E. ESTABROOK."

Before May 1, 1889, Samuel G. Stevenson selected an arbitrator, one John H. Harte, who, with James H. Baldwin, above named by Mr. Estabrook, on the date therein indicated drew up and signed the following document:

"MAY 1, 1889.

"Messrs. E. Estabrook and S. G. Stevenson, City: We, James H. Baldwin and John H. Harte, have examined buildings Nos. 414 and 416 North 16th street, city of Omaha, and appraise them at thirty-one hundred and 00-100 dollars ($ 3,100.00).

"JAMES H. BALDWIN.

"JAMES H. HARTE."

Mr. Baldwin on the day following met Mr. Estabrook, who had meantime heard of the amount agreed upon, and, by the manifested dissatisfaction with the amount fixed, was prevented from giving him a copy of the above award. On the 26th day of September, 1885, Samuel G. and his wife, Mary E. Stevenson, signed, acknowledged, and delivered to Louis Bradford a written assignment of the above mentioned lease. This assignment was filed for record in the office of the county clerk of Douglas county October 1, 1885, and was recorded in book 61 of deeds. On July 8, 1886, Louis Bradford, by an indorsement upon the written assignment to himself, transferred and assigned to Mary E. Stevenson, and at the same time executed to her an unacknowledged quitclaim conveyance of his interest in the parcel of land described in the lease. Neither of these was recorded, and it was shown by the testimony of Samuel G. Stevenson that he never informed Mr. Estabrook that such transfers had been made. At the time the award was made in favor of Samuel G. Stevenson he had, therefore, no beneficial interest whatever in the lease to which, originally, he had been a party. If Mr. Estabrook had paid to Mr. Stevenson the amount of the award made in his favor, of $ 3,100, he could have protected himself against being compelled to pay Mrs. Stevenson only by proving that in some way she was represented by her husband in receiving the payment which he did receive, or by showing that he was entitled to credit against her by reason of the want of notice of her interest as assignee of the lease. This Mr. Stevenson, after he had parted with all his rights in the lease, was certainly not in a position to insist upon. On the 9th day of May, 1889, Experience Estabrook filed in the office of the clerk of the district court of Douglas county his petition, wherein Samuel G. Stevenson and Mary Stevenson were named as defendants. In this petition he copied the aforesaid lease and the notice to terminate the same, and having set out the award and alleged its invalidity for want of precedent notice, he alleged that Samuel G. Stevenson was not the owner of this lease and that he had been unable to discover who was its owner. In this connection the plaintiff alleged that he had always been willing to pay for the improvements the actual value thereof to whomsoever was entitled to receive such payment, and offered to give such bond as the court should require for the payment of any amount found due upon an investigation had between himself and such party as was the holder of the lease in question.

It is insisted by ...