Norton v. Gale

• Decision Date: 16 June 1880
• Citation: 35 Am.Rep. 173,1880 WL 10066,95 Ill. 533
• Parties: NATHANIEL NORTONv.STEPHEN F. GALE.
• Court: Illinois Supreme Court

95 Ill. 533

1880 WL 10066 (Ill.)

35 Am.Rep. 173

NATHANIEL NORTON

v.STEPHEN F. GALE.

Supreme Court of Illinois.

Filed at Ottawa Jun. 16, 1880.

APPEAL from the Appellate Court for the First District; the Hon. THEO. D. MURPHY, presiding Justice, and the Hon. GEO. W. PLEASANTS and Hon. JOSEPH M. BAILEY, Justices.

This was an action by Gale against Norton on three leases of vacant lots in Chicago, executed by the former to the latter on the first of February, 1872, to run for a term of fifty years; one, of five lots, for a yearly rent for the first five years at $1000 per annum, payable quarterly in advance; one, of five lots, at $1000 per annum for the first five years, payable the same way, and one, of ten lots, at $3100 per annum for the first five years, payable quarterly in advance. Each lease contained the following clause: “And the party of the second part further agrees that at least thirty days before the expiration of said first five years he will choose one disinterested holder of real property of the city of Chicago, and notify in writing said party of the first part, or his agent or attorney, of such choice, and party of the first part will thereupon choose a like holder of real property, which said two parties shall at once proceed to appraise the cash value of said premises, exclusive of all improvements thereupon, and in case they can not agree upon the same, shall choose a third disinterested holder of real property, and the award of the majority of the appraisers shall be final and binding; and thereupon, for the next succeeding five years from the end of said first five years, said party of the second part will pay as rent for said premises, quarterly as aforesaid, a sum for each and every year of said five years equal to six per cent per annum on the appraised value of said premises.”

Before February 1, 1877, the expiration of the first five years, Norton selected as his appraiser James N. Clark, and Gale selected as his appraiser, George W. Fuller, and the two made and reduced to writing and signed and sealed the following appraisement:

“We, the undersigned, disinterested holders of real property in the city of Chicago, in the county of Cook, and State of Illinois, who were duly chosen as appraisers, to-wit: James N. Clark, who was chosen by and on behalf of Nathaniel Norton, and George W. Fuller, who was chosen by and on behalf of Stephen F. Gale, to appraise the cash value of certain lots, pieces and parcels of land, situate in the city of Chicago, and particularly mentioned and described in three (3) certain leases of said premises, bearing date, respectively, on the first day of February, A. D. 1872, made and executed by the said Stephen F. Gale, as the party of the first part, and the said Nathaniel Norton, as party of the second part; to which said three (3) leases reference is hereby made for a particular description of the premises aforesaid, and which said three (3) leases are hereby made a part and parcel hereof, do hereby, in accordance with the terms, conditions and provisions of the three leases aforesaid, make, adjudge and appraise the cash value of the premises aforesaid, and as hereinafter described, as follows, to-wit:

The lots numbered one (1), two (2), three (3), four (4), five (5), six (6), seven (7), eight (8), nine (9) and ten (10), in S. F. Gale's subdivision of block number fifty-two (52) in Carpenter's addition to Chicago, are hereby valued at the sum of two hundred dollars ($200) in cash per foot front upon Washington street, excluding all improvements thereupon. The lots numbered nineteen (19), twenty (20), twenty-one (21), twenty-two (22), twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26), twenty-seven (27), and twenty-eight (28), in S. F. Gale's subdivision of block numbered twenty-six (26), in Carpenter's addition to Chicago, are hereby valued and appraised at the sum of one hundred dollars ($100) in cash per foot front upon West Lake street, excluding all improvements thereupon.

In witness whereof, we have herewith set our respective hands and seals, this 15th day of January, A. D. 1877.

+-------------------------+
                ¦JAMES N. CLARK, ¦[Seal.] ¦
                +----------------+--------¦
                ¦GEO. W. FULLER. ¦[Seal.]”¦
                +-------------------------+
                

Gale claimed that, under this appraisement, there was due for the first quarter of the second five years, $1125, to recover which the action was brought.

By pleas, by objections to evidence offered by Gale, by evidence offered by himself and by instructions asked, Norton raised the question, on the trial in the circuit court, whether the appraisement was binding and conclusive upon him.

The ruling of the circuit court, upon all the contested points, was in favor of Gale. Norton excepted, and took the case by appeal to the Appellate Court for the First District, and that court, on the 26th of June, 1878, affirmed the judgment of the circuit court.

Gale appeals from that judgment of the Appellate Court, and assigns numerous errors, sufficiently noticed in the opinion. Messrs. MILLER & FROST, for the appellant:

A verbal lease of land for a term exceeding a year is void. Olt v. Lohnas, 19 Ill. 576; Granjang v. Merkle, 22 Id. 249; Wheeler v. Frankenthal, 78 Id. 124.

The entire contract, including the price, must be in writing. Wood v. Davis, 82 Ill. 311.

If made by an agent, his authority must be in writing. Rev. Stat. chap. 59, page 540, sec. 2.

The contract upon which the recovery was had was incomplete until the price (an essential part of it) was agreed on or fixed by the arbitrators under a written submission. What the parties could not do verbally, could not be legally done by arbitrators under a verbal submission. French v. New, 28 N. Y. (Court of Appeals), 147, 150.

Such a verbal agreement would have been a nullity. “A verbal submission is valid in all cases where the subject matter is such that a verbal agreement directly between the parties in the terms of the award would prevail. But where the law, as for instance the Statute of Frauds, requires a contract to be in writing, then both the submission and the award must be in writing.” Cadwell on Arbitrations, Vermont ed. 1853, p. 36; Copeland et al. v. Wading River Reservoir Co. 5 Mass. 397.

“Fraud in an award may be shown either at law or in equity.” Newlan v. Dunham, 60 Ill. 233.

The appointment of arbitrators is a necessary part of a submission. It is not complete until the persons to whom it is made are selected.

Where the law, as, the Statute of Frauds, requires a contract to be in writing, then both the submission and award must be in writing. Walter v. Morgan, 2 Cox, 369; McMullen v. Mayo, 8 S. & M. 298; Copeland v. Reservoir Co. 105 Mass. 307; Evans v. McKinney, 6 Litt. 264; Martin v. Chapman, 1 Ala. 278; Davy v. Farr, 7 Cranch, 171.

That the decision of the person fixing the valuation of the property is an award, counsel cited Peters v. Newkirk, 6 Cow. 103, Smith v. Cody, 5 Daly, 401, Underhill v. Van Cortland, 2 Johns. Ch. 339, Dickenson v. Railroad Co. 7 W. Va. 390, and Kelly v. Crawford, 5 Wall. 790.

If the arbitrators gave no notice to the parties of the hearing, their award is utterly void. Peters v. Newkirk, 6 Cow. 106; Bushey v. Culler, 26 Md. 534; Thornton v. Chapman, 2 Cr. C. C. 244; Gafby v. Hartford Bridge Co. 4 Conn. 143; Ingraham v. Whitman, 75 Ill. 25; Falconer v. Montgomery, 4 Dal. 222; Wilson v. Boor, 40 Md. 483; Hubbard v. Hubbard, 61 Ill. 228; Moran v. Bajent, 16 Abb. Pr. (N. S.) 303; Billings v. Billings, 110 Mass. 225; Thomas v. West Jersey Railroad Co. 24 N. J. Eq. 567; West Jersey Railroad Co. v. Thomas, 23 N. J. Eq. 431; Elmendorf v. Harris, 23 Wend. 628; Lutz v. Lithicum, 8 Pet. 178; Brown v. Liddy, 11 Hun. 455.

The parties must have a hearing afforded them. Van Cortland v. Underhill, 17 Johns. 408; McMahon v. New York and Erie Railroad Co. 20 N. Y. 463; Eads v. Williams, 3 Eng. L. & E. R. 203; Phipps v. Ingram, 3 Dowl. 669.

Messrs. WALKER & CARTER, for the appellee:

The submission was in writing, but would have been valid if verbal. Smith v. Douglas, 16 Ill. 34; Morse on Arb. and Awards, 51.

Appraisers of value are not arbitrators. There was no controversy between the parties. The matter of valuation was submitted to the individual discretion, opinion and judgment of the appraisers. Leeds v. Burrows, 12 East, 1; Lee v. Hemingway, 3 Nev. & M. 860; Jenkins v. Betham, 24 L. J. C. P. 94; Collins v. Collins, 28 L. J. Ch. 184; Garred v. Macey, 10 Mo. 160; Curry v. Luckey, 35 Id. 389; Benj. on Sales, sec. 88; Russ. on Arb. 38; Morse on Arb. 40.

“A reference of a collateral fact, or the submission of a particular question forming only a link in the chain of evidence, is not calculated to put an end to the controversy,--it merely substitutes the judgment of the referee in the place of the evidence on that collateral or incidental matter, leaving the controversy open.” Such a decision is not an award, and the reference of such a matter is not a submission to arbitration. Garr v. Gomez, 9 Wend. 649; Harris v. Bradshaw, 18 Johns. 26; Mason v. Bridge, 14 Me. 468; Oakes v. Moore, 24 Id. 214; Rochester v. Whitehouse, 15 N. H. 468.

The appraisal of the value of property being a matter for the exercise of the individual opinion of the appraisers, witnesses are not necessary. 2 Pars. on Cont. 706, note n; Eads v. Williams, 31 Eng. L. & E. 202; Brown v. Bellows, 4 Pick. 178; Matter of Pearl Street, 19 Wend. 651; Brink v. New Amsterdam Fire Insurance Co. 5 Robt. 104; Matter of John and Cherry Streets, 19 Wend. 659; Rochester v. Chester, 3 N. H. 349.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The first objection urged against the judgment below is, “our statute says that no action can be brought upon a contract of this kind unless the contract shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party;” and it is...