Street v. Chicago Wharfing & Storage Co.

• Decision Date: 11 October 1895
• Citation: 157 Ill. 605,41 N.E. 1108
• Court: Illinois Supreme Court
• Parties: STREET et al. v. CHICAGO WHARFING & STORAGE CO.

157 Ill. 605

41 N.E. 1108

STREET et al.

v.CHICAGO WHARFING & STORAGE CO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Bill by the Chicago Wharfing & Storage Company against Charles A. Street and Frederick A. Keep, copartners as Street, Chatfield & Co. Defendants obtained judgment, which was reversed by the appellate court. 54 Ill. App. 569. Defendants appeal. Affirmed.S. M. Millard, for appellants.

Adolph Traub, for appellee.

The Chicago Wharfing & Storage Company, appellee herein, was the owner of certain dock property in Chicago, subject to a leasehold interest of Walter Shoemaker & Co.; such leasehold beginning May 1, 1887, and ending April 30, 1982. Shoemaker & Co. had placed on the property a large amount of planking for driveways and sorting platforms, and had erected fences, lumber sheds, and laid foundation timber for piling lumber. The lease to Shoemaker & Co. provided that in case the lease should not be renewed the lessor should at its expiration purchase the planking on the premises, and pay therefor the valuation made by three appraisers. Street, Chatfield, & Co., the appellants, negotiated for a lease of the premises for a term beginning May 1, 1892, and their attention was called to the provision in the Shoemaker lease requiring the lessor to purchase the planking, and the lease was shown to them. The negotiations with Street, Chatfield & Co. were made on behalf of the company by Galloway, who is its treasurer, and on behalf of Street, Chatfield & Co. by Street. Galloway stated to Street the provisions of the Shoemaker lease; that Street or the company should take the planking at the expiration of that lease at an appraised value, at the same time saying that he (Galloway) would lease the property to appellants for $5,400 a year providing they would take the planking as provided in the lease. Street, in answer to that proposition, said that he would like to negotiate with Shoemaker for the lumber shed, stable, fencing, and some other things that they had on the ground, which were not included in the arbitration agreement, and that while he (Street) was negotiating for these he might make an arrangement to purchase the planking. Galloway said he had no objections to his buying the planking by private trade; that ‘he could either buy it or take it at the appraised value.’ Street said he would take the premises on the terms named. They then put their agreement into writing. The agreement, as written, is substantially this: ‘Memorandum of agreement made the second day of February, 1892, between the Chicago Wharfing and Storage Company, a corporation of the one part, and Street, Chatfield & Co., of the other part, witnesseth: That the first party agrees to lease to the second party lots 29-38, both inclusive, in subblock 2 of block 18, Sheffield's addition to Chicago, now occupied by Walter Shoemaker & Co., from May 1, 1892, to April 30, 1897, for $450 a month, to be paid monthly in advance, beginning May 1, 1892. First party agrees to provide an office. First party is to pay taxes on the ground, and second party on the improvements. In consideration of the undertaking by the first party the second party agrees to take a lease of said premises, and to pay the rent named, and to pay taxes. The party of the second part shall be entitled to take the planking now on said ground, belonging to Walter Shoemaker & Co., at the appraised value as provided for in the lease between James B. Galloway and Walter Shoemaker & Co., or to purchase said planking direct from Walter Shoemaker & Co., and at the expiration of the lease hereby agreed to be made the first party agrees to purchase the planking on said yard of Street, Chatfield & Co. at its then appraised value, to be appraised as follows: Each of the parties to said lease shall select one appraiser, and if these two cannot agree they shall select a third appraiser, and the majority of the three so chosen shall decide the value of said planking. First party agrees to enforce the terms of lease with Shoemaker & Co. regarding the river channel.’ After this agreement was made, Street negotiated with Shoemaker & Co., and bought the lumber shed, fencing, and other property on the premises, but they could not agree on the price of the planking. Street then requested an immediate appraisal. Appraisers were appointed, but the one selected by Galloway declined to act, and Street then said he would himself get a man who would be acceptable, and who would make a good appraiser. Street informed Galloway of the time set for the appraisal, and requested him to be present. On April 7, 1892, Street introduced Galloway to Holtmeier, the appraiser selected by Street, and an appraisal was made the same day. The price placed on the planking was almost $500 more than the amount for which it had been offered to Street by Shoemaker & Co. Galloway left while the appraisers were at work, but Street remained until the appraisal was made. The next day Street called on Galloway, and said the appraisal was too high, but he was willing to pay the amount for which it had been offered to him. Shoemaker & Co. refused the offer. Leases were drawn and tendered to Street, Chatfield & Co. in accordance with the agreement referred to, a provision being inserted that Street, Chatfield & Co. should pay the appraisal. They declined to sign the lease. On May 1, 1892, Street, Chatfield & Co. took possession of the property and the planking, and are using the same in their business. On May 2, 1892, they sent the complainant notice to remove the planking.

On May 13, 1892, appellee filed a bill against appellants for the specific performance of the contract. A demurrer was sustained to that bill, as was also a demurrer to an amended bill. Thereupon appellees, by leave of court, filed this their second amended bill, and prayed therein both for a reformation of the contract and for specific performance. There was then answer and replication, and the cause was referred to a master in chancery to take the evidence and report his conclusions thereon. The master reported the testimony and his conclusions. His ultimate conclusions were that it was the understanding of the parties to the agreement, prior to the time when the same was reduced to writing, that Street, Chatfield & Co. should either take the Planking at the appraised value, or should purchase it from Shoemaker & Co. at private sale, but that it is not shown that, when the agreement was actually dictated by Galloway and written out, it was the intention of the parties to use any different language than was used in the agreement, and that Galloway thought that the words ‘be entitled to’ meant, and all the time has insisted that they do mean, something different from what the court has already determined they do mean; that Street felt all the time, until advised to the contrary by his attorney, that he was obliged to do one of two things,-either take the planking at its appraised value, or purchase it at private sale,-yet that this conclusion is not without doubt, and it is possible that he and Galloway may have understood the matter differently; that the evidence does not show any such mistake, or come within the rule governing the reformation of contracts. And the master recommended that a decree should be entered dismissing the second amended bill for want of equity. At the hearing the court refused to allow the exceptions to the master's report, and dismissed the second amended bill out of court for want of equity. Upon a writ of error sued out of the appellate court of the First district, the decree of the circuit court was reversed and the cause remanded, with directions to enter a decree directing Street, Chatfield & Co. to pay into court the appraised value of the planking as found by the appraisers, with interest thereon at 5 per cent. per annum from May 1, 1892, and to execute a lease of said premises in accordance with the instrument signed by the parties and bearing date February 2, 1892, the same to be prepared and executed by the Chicago Wharfing & Storage Company. The judgment and decree of the appellate court are brought here for review by this appeal.

BAKER, J. (after stating the facts).

As we understand the record, the original bill and the first amended bill are not now before us. Under a leave to amend, the complainant below struck out of the record the original and the first amended bills, with the exception of the exhibits, which were expressly retained and made parts of the second amended bill of complaint. Although the court had sustained demur...