Springer v. Borden

Craig, J.: It is first claimed by counsel for appellant that a court of equity had no jurisdiction of the subject matter — that there was a complete remedy to recover the rent by an action at law on the covenents of the lease. It will be observed that the rent was payable quarterly, and the lessor was entitled to a prompt payment, with a provision for forfeiture in case the lessee failed to comply. How could the lessee know how much rent he was required to pay each quarter, for the period of ten years, unless an appraisement of the property should be first made, and how could the lessor know how much rent to demand each quarter unless the value of the property had been determined, as provided in the lease ? It may be true that the lessor might bring an action at law each quarter during the ten years, and prove the value of the property, and then recover five per cent of the valuation. But the lessor had the right to know the amount of rent due each quarter during the ten years, in order that he could demand prompt payment, and insist on a forfeiture if he desired, or in order that he might distrain for rent, if he thought proper. So, also, the lessee was entitled to have the amount determined so that he could comply with the terms of the lease. The remedy at law would require the lessor to bring an action every three months during the ten years, and litigate with the lessee the value of the premises, before it could be known what amount of rent the lessor was entitled to recover. A remedy of that character is far from adequate. Moreover, under the statute the lessor was entitled to distrain for rent, but in order to do so he was required to specify the amount due. But that he could not do until he had settled the amount by action at law. The same question involved here arose in Tobey Furniture Co. v. Rowe, 18 Ill. App. 293, and it was there held, that while a court of equity will not specifically enforce a contract for arbitration by compelling the appointment of arbitrators or by compelling them to act when appointed, yet where the rights of the parties are made to depend upon an appraisal of property, and the appraisal provided for in the contract has failed, courts, both of equity and of law, will interfere to prevent a failure of justice by hearing the evidence and making the appraisement. The contract in that case and the one here involved are so similar that any rule applicable to one must control the other. In Kelso v. Kelly, 1 Daly, (N. Y.) 419, where a lease provided for a second term of five years, the rent to be fixed by arbitrators to be chosen, an award was made but failed, whereupon a bill was filed to have the court fix and determine the rent. In disposing of the case it is said: “If the rent is to be fixed, not by the parties, but by arbitration, the court can, by taking proof, ascertain and fix it with as much certainty as the arbitrators could do; and if the mode of determining it by arbitration cannot be resorted to, through the refusal of one of the parties to appoint an arbitrator, there is no reason why the other party should lose the benefit of a contract in all other respects valid and binding, when the court has the means of fixing what so eminent a judge as Sir William Grant regarded as a mere matter of detail. * * • * But the plaintiffs cannot give a new lease until the amount of the rent is fixed. As the defendant will not appoint an arbitrator, the plaintiffs are entitled to the equitable aid of the court to ascertain it, that being the only mode, under the circumstances, in which it can be ascertained and fixed. The relief sought is purely of an equitable nature, to which the plaintiffs are entitled if they have no adequate legal remedy. * * * If the remedy which the party may have at law will not put him in a situation as beneficial to him as if the agreement were specifically performed, relief will be afforded in equity.” In Viany v. Ferran, 54 Barb. 529, a similar question arose and the same doctrine was announced. See, also, Coles v. Peck, 96 Ind. 333; Lowe v. Brown, 22 Ohio St. 463; Durham, v. Bradford, L. R. 5 Ch. App. 518. In Strohmaier v. Zeppenfeld, 3 Mo. App. 429, a lease contained covenants of renewal upon a valuation of the premises, to be determined by two freeholders. The appraisement failed, and the lessee filed a bill for relief. In the decision of the case the court said : “As has been shown, a court of equity does not enforce the contract as made by the parties in such cases as at present. On the contrary, equity proceeds upon the basis that the contract as made cannot be enforced, and applies its own remedies to the violation of its rules. The relief given is of a purely equitable nature, and the ground upon which the plaintiff is entitled to it is, that while he has a clear right of action he has no adequate remedy at law. In the case of á covenant- like that now in question it is obvious that it is not of the essence of the contract that the valuation should be made by disinterested freeholders, rather than by a court of equity. That is an immaterial detail, and a mode as effective and fair may be found. Accordingly, the court should hear evidence, and upon the case as made, and upon the facts as ascertained from the evidence, specific performance may be decreed.” As has been seen, the contract of the lessee required the cash value of the premises to be determined at a specified time, and he agreed to pay rent upon the cash value so ascertained. There was a failure to observe that part of the contract, and the value of the premises was not determined. The bill is in the nature of a bill for specific performance, and while it does not ask to have appraisers appointed and to have them proceed and determine the value of the property, the court is asked to hear the evidence, and from that evidence do what the contract required the appraisers to do, — fix the value of the property, so that a basis may be laid for ascertaining the amount of rent the lessor is entitled to recover. The bill, therefore, being practically one for specific performance, a court of equity had jurisdiction. It is also claimed that the lessor wrongfully prevented an appraisement of the property as is provided for by the lease. It would serve no useful purpose to go over the evidence of the respective parties on this question. We have given the evidence a careful consideration, and we are satisfied that the lessor did not prevent an appraisement of the property by any wrongful act or conduct on his part. The lease provided that if, for any cause whatever, a valid and just award shall fail to be made, any person interested shall have the right to apply to any court of record in Cook county to have the value ascertained, whose judgment or decree shall be binding. The lessor and lessee each selected an arbitrator, but as yet no third party has been selected who will serve. It was therefore the right of either party to apply to a court of equity for relief at the time the bill was filed, within the meaning of that clause of the lease allowing an application to a court of record. It is also claimed that the value of the property as fixed by the court — $300,000—was too high. As a general rule, when witnesses are called upon to prove the value of a certain piece of property they will disagree. Such was the case here, but after an examination of all the evidence we are not prepared to say that the court reached a wrong conclusion. The action of the court in the admission and exclusion of evidence is criticised, but, so far as we have observed, the court did not exclude any evidence which had a . material bearing on the merits of the case, and if any evidence was admitted which was improper, the court' no doubt, on the final consideration of the case, rejected the same, and in a chancery case that is all that could be required. The judgment of the Appellate Court will be affirmed. Judgment affirmed.