Yeatman v. Clemens

• Decision Date: 12 November 1878
• Citation: 6 Mo.App. 210
• Parties: JAMES E. YEATMAN, Respondent, v. JAMES CLEMENS, JR., Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 210

JAMES E. YEATMAN, Respondent,

v.JAMES CLEMENS, JR., Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 12, 1878.

It was stipulated in a lease that if the lessee would erect a certain building upon the demised premises the lessor would, at the expiration of the term, pay to the lessee the value thereof, such value to be fixed by appraisers chosen by the parties. Appraisers were chosen, who, upon a thorough examination of the building, made a valuation. The lessor refused to pay the appraised value, and the lessee brought suit to compel payment. Held, that the lessor could not, independently of the appraisers' report, show the value of the building, nor introduce evidence of damages sustained by the lessee's failure to erect a more substantial building; that, having made no objection to the character of the building until after the award, such objection will be considered as waived; that his having no personal knowledge of the building until after the appraisement, the appraisers being fully advised thereof, was immaterial; and that his ignorance, in the absence of fraud or concealment, was his own laches.

APPEAL from St. Louis Circuit Court.

Affirmed.

A. M. GARDNER, for appellant: The report of the appraisers, not being made under oath, did not preclude proof that the valuation was excessive.-- Taylor v. Hayden, 18 Mo. 390; Frissell v. Fickes, 17 Mo. 537; Webb v. Hauser, 38 Mo. 210; Fassett v. Fassett, 41 Mo. 516; Tucker v. Allen, 47 Mo. 488. The plaintiff could only recover on the contract contained in the lease, and not on the appraisement itself.-- Garrad v. Doniphan, 10 Mo. 161; Leonard v. Cox, 64 Mo. 32. No party is estopped by an admission made in ignorance of his rights, induced by an innocent mistake of material facts.-- Thrall v. Lathrop, 30 Vt. 307; Taylor v. Zepp, 14 Mo. 482; Dessaunier v. Murphy, 22 Mo. 95; Christianson v. Linford, 3 Robt. 215; Diehl v. Adams, 58 Pa. St. 443. There must be knowledge to establish a waiver.-- Haysler v. Owen, 61 Mo. 270; 24 Pa. St. 314; Yeats v. Ballentine, 56 Mo. 530; Smith v. Brady, 17 N. Y. 173; Wells v. Selwood, 61 Mo. 238; Knowlton v. Smith, 36 Mo. 507.

HITCHCOCK, LUBKE & PLAYER, for respondent: Having gone into this appraisement, and got the opinion of the appraisers, defendant is estopped from setting up ignorance of his alleged rights.--Big. on Estop. 471; Thomas v. Pullis, 56 Mo. 211; Major's Heirs v. Rice, 57 Mo. 384.

HAYDEN, J., delivered the opinion of the court.

This is an action founded on a clause in a lease, to recover the value of certain improvements made by the respondent upon a lot of ground leased by him of the appellant for twenty years. The lease contained the following provision: “And it is further considered and agreed by and between the parties thereto, that if, during the continuance of this lease, the said James E. Yeatman shall erect a substantial brick store or warehouse on the premises, and finish the same in manner that such stores or warehouses are usually finished, he, the said Clemens, at the end of the term for which the lease was given, promises to pay to the said Yeatman, or his legal representatives, the value of the same, to be ascertained by two disinterested parties,--one chosen by each party,--and if they cannot agree as to the value of the house, they should call in a third person, and the award of any two of them shall be binding, and the value they may assess shall be the price to be paid by Clemens for the house.” The respondent alleged that he occupied the premises, and during the term erected, under this clause, a brick warehouse as described; that at the end of the term he and the appellant each chose an appraiser, and that they, being unable to agree, chose a third, who made their written appraisement, concurred in by two of the three, by which the warehouse was appraised at $3,500. The appellant denied that any warehouse was erected in conformity with the provision of the lease, or that any valid award was made, and alleged that the respondent concealed from the appraisers the fact that the south wall of the building was not on the appellant's land, but on an adjoining lot, and that the building was without a cellar. These facts as to the wall and cellar, except the concealment, were admitted by the respondent, who alleged that the position of the south wall and the absence of a cellar were well known to the appraisers, and were considered by them in fixing the value of the building.

The evidence upon the trial tended to support the allegations as made by the respondent, and showed that he erected a warehouse, which was standing when the lease expired; that under the clause in regard to the appointing appraisers, the respondent appointed one (Peck), the appellant one (Jessup), and the two, being unable to agree, one (Squires); that the three examined the building, and that Peck and Squires concurred in the award. It was shown that when Peck and Jessup first examined the building, the respondent called their attention to the fact that there was no south wall on the lot. It appeared that many warehouses were built without cellars, and that the appraisers knew the building had no cellar and no south wall of its own, and allowed for these facts in making the appraisement. It was admitted upon the trial that it was a thing very commonly done, in building warehouses in St. Louis, where this was built, to use a wall of the adjoining building, as in this case, inserting the rafters therein. There was testimony tending to show that the warehouse was substantial, and finished as warehouses were usually finished.

The appellant testified that when the arbitration was going on he did not know that there were only three walls to the building, or no cellar under it; and offered testimony as to the condition of the building when it was turned over to him, and when appraised, as to the amount of repairs necessary to make it tenantable, etc., which the court below excluded. The jury found...