Holliday v. Marshall

Headnote

The assfn-umen tbg'^t bunder au,l improvements should be valued by three or five indifferent pertmg not seal, is good. Where, in a lease for a term of years, it was covenanted between the lessor and lessee, that at the expiration of the term, the sen by the parties, and after the term and surrender of the premises, the lessee applied to the lessor to agree on three or five persons to appraise the buildings, &c. and he refused to do it, on which the lessee bad the buildings, &e. appraised by three indifferent men, who valued them at 780 dollars; it was held, in an action against the lessor, on his covenant, that the lessee was not entitled to receive interest on the 750 dollars, as the ex purte appraisement was not conclusive, and the damages remained unliquidated, to he ascertained by the verdict of the jury.

THIS was an action of covenant, tried at the Washington circuit, loth June, 1810, before Mr. Justice Van Ness. The plaintiff declared on a lease, dated 6th January, 1792, by which the defendant demised to the plaintiff a lot of land, for the term of eight years from November 6, 1791. The lease contained the following covenant on the part of the defendant, to wit, “ that the said Royer Hollidau, his heirs, executors, administrators ° y7 7 7 or assigns, have either a renewal of the lease, on such ° terms as should be agreed upon, or in case the land should be sold, that the said Holliday, his heirs, &c, should have the first offer thereof, or in case no agreement should be made for the demising or selling the lot of land, that then the buildings and improvements on

the lot should be valued by three or five indifferent persons, to be chosen by the parties, &c. and whatever should be deemed the value of the same, should be paid to the lessee, his heirs, &c. upon delivering up and re-from the premises,” &c. The " lease passed by assignment to several hands, and before the expiration of the term, was assigned to the plaintiff. The several assignments were'set out in the declaration. The plaintiff averred that the premises were not sold,_ nor was there a renewal of the lease, and that at the expiration of the term, he surrendered up the premises to the defendant, and removed from the lot, and thereupon applied to the defendant to agree on the choice of three or five indifferent persons, to appraise the buildings and improvements on the premises, which the defendant refused to do. The plaintiff thereupon applied to three indifferent persons for that purpose, who appraised the buildings and improvements at 7SO dollars, of which notice was given to the defendant.

One of the assignments in the lease set forth in the declaration, was from Immanuel Deake to Benjamin Hawkins., for the consideration of ten pounds.

The defendant pleaded, 1. That Immanuel Deake did not assign, &c. to Benjamin Hawkins; 2. That the plaintiff did not propose to the defendant to choose three or five indifferent persons to appraise the buildings and improvements, &c.

At the trial, the defendant objected to the reading the assignment from Deake to Hawkins, as it was not under seal, and the plaintiff was bound to prove an assignment by deed, but the judge overruled the objection, and the assignment was read in evidence. The plaintiff then proved that he applied to the defendant to join in the appointment of three or five indifferent persons to appraise the buildings and improvements left on the premises, which the defendant refused to do. The plaintiff then proved the value of the buildings and improvements to

be 7SO dollars; and claimed interest on that sum from the time the defendant had notice of the appraisement, which was objected to, and a verdict was taken for the plaintiff, subject to the opinion of the court, on a case to be made. '

The cause was submitted to the court without argument.