Norton v. Gale.

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 awfully authorized in writing, signed by such party;" and it is thereupon argued that the appointment of the arbitrators is a necessary part of the submission,- that the submission cannot be said to be made until the persons to whom it is made are selected.

The objection is not well urged. All of the terms of the contract upon which suit is brought, required by the statute of frauds to be in writing, are in writing. The amount to be paid per annum for the first five years is specifically expressed. The amount to be paid after the expiration of that period is six per cent on the appraised value of the premises, that is to say, on the "value of the premises." Suppose the language had been simply to pay six per cent on the value of the premises? Surely, that would have been sufficiently definite and certain to have answered the requirements of the statute. The provision with reference to the appointment of appraisers relates solely to the mode of making proof of value, and is certainly as competent as any other mode of proof of value.

It is said in Brown on Statute of Frauds, § 378: "It is quite obvious that the statute will be satisfied by such a statement as ascertains the price to be paid, although it mentions no specific sum, -as for instance, if the agreement is to pay a price to be settled by arbitration, or to pay the same for which the property had been previously purchased."

In Brown v. Bellows, 4 Pick. 178, it was referred to referees to fix the price to be paid for the property. The referees were not named in the indenture, but it provided that they were to be thereafter chosen. As against the plea of the statute of frauds it was held that after the price had been fixed by referees, chosen pursuant to the indenture, it was too late for the defendant to object, that by the statute of frauds, the indenture was invalid, because the referees and the price were not ascertained by the indenture itself.

Whether the reference here be called one to arbitrators or simply to appraisers, can, so far as this question is concerned make no difference. The rule controlling is, "id certum est quod certum reddi potest," and has nothing to do with the name by which the third party, to whom the valuation is left, shall be called.

The next, and most serious objection urged against the judgment

Norton v. Gale.

below, is, that the stipulation to refer the question of the value of property to holders of real property in Chicago, as provided in the leases, is a submission of that question to arbitrators, and that the valuation made by Clark and Fuller is an award and not merely an appraisement; and being an award, it is void, because made without notice to the parties to the submission, and after refusal to hear appellant's witnesses on the question of value, and argument thereon by his counsel, which evidence and argument, it is claimed, would have shown that the valuation, as made, is unjust to him. There was no evidence introduced, or offered, showing that the valuation, as made, was not the honest expression of the judgments of the appraisers, and the only question, in reality, is, was appellant entitled to notice and to be heard on the question of value? If he was not, there is nothing in the evidence introduced or offered, showing objectionable conduct in the appraisers.

In one or more of the pleas there may be allegations of fraud, but there was no attempt to support such allegations by proof. And the instructions asked only go to the question of the right of appellant to notice, and to be heard by witnesses and counsel.

The authorities upon the question of notice are not entirely harmonious. In some cases in New York, and notably in Peters v. Newkirk, 6 Cow. 103, and McMahon v. New York and Erie Railroad Co., 20 N. Y. 463, rulings may be found sustaining the position of the appellant. But the authority of Peters v. Newkirk is much impaired by what is said in reference to it in Elmendorf v. Harris, 5 Wend. 521. It was there said: "As to the appraisement referred to in Peters v. Newkirk, it could hardly be dignified with the name of an award. Even if it should be so considered, it was not made the foundation of an action." And so what was said in regard to notice, however correctly or incorrectly, was obiter dicta. And in McMahon v. New York and Erie Railroad Co. there was a provision in the contract requiring the work to be done under the direction and supervision of the engineer, and providing that he should decide every question that might arise between the parties, and that his decision should be final. It was held that his position was not unlike that of an arbitrator, and that his estimates would not be binding, unless they were made upon notice. But this, in principle, is in conflict with the ruling of this court in kindred cases.

In McAuley v. Carter, 22 Ill. 53, the parties to a building contract agreed that the superintendent should pass upon the work and

Norton v. Gale.

certify as to the payments to be made. IIis decision was held to be binding unless fraud or mistake on his part should be shown, and it was also held that notice need not be given of the certificate obtained from the superintendent where the contract does not require it.

Korf v. Lull, 70 Ill. 420, follows, and approves McAuley v. Carter, and overrules what was said in Packard v. Van Schoick, 58 Ill. 79, requiring notice in such cases.

There may be found other cases besides those to be found in the reports of New York, affording sanction to appellant's position, but we do not deem it important to refer to them in detail, and shall content ourselves with briefly referring to some authorities sustaining what we regard as the more reasonable rule.

In Leeds v. Burrows, 12 East, 1, the plaintiff was the outgoing and the defendant the incoming tenant of a farm, and it had been agreed between them that the referees should value the hay and the spike roll, for which the defendant was to pay, etc. "LE BLANC, J., observed that it was only left to the persons to whom the matter was referred to put a value upon the articles which the parties had already agreed should be paid for."

In note "a," at the conclusion of the report of the case, it is shown that after a second trial the case came before Lord ELLENBOROUGH, C. J., on a motion for a nonsuit, upon the ground that the agreement included a reference of a right of action for damages, etc., and he said "that it was only appointing persons to settle an account of what was due between the parties for the value of the different articles. The parties had no contemplation of submitting any differences to the award of abitrators, and no such terms ought to be imposed upon them against their own meaning and the meaning of the stamp acts."

In Lee v. Hemingway, 3 Nev. & M. 860, there was an agreement to sell land at a particular price, to be fixed by award. The price was fixed, and one party applied for an attachment under the award, claiming that it was an arbitration; but LITTLEDALE, J., held otherwise, observing: "It is not properly an arbitration; it is in effect an agreement to sell the land, and this is not a settlement of any difference between the parties, but merely something auxiliary to the contract entered into between them for the purpose of the sale of the land, and accordingly upon a breach of the contract you have your remedy, for it is clear that a specific performance would VOL. XXXV —23

Norton v. Gale.

have lain here in that case. It is clear also that an action would have lain for damages. But not being an award because it was not a matter in difference that was referred by these parties, you cannot have it by way of attachment."

In Collins v. Collins, 26 Beav. Ch. 306, there was a written contract that the purchase-money of all the premises agreed to be sold should be determined by Mr. Mason for the vendor and Mr. Moss for the purchaser, and that they should choose an umpire before entering upon a valuation.

The Master of the Rolls said: "It appears to me that the case of Leeds v. Burrows draws the proper and fit distinction between an arbitration, in the proper sense of the term, and an appraisement or valuation, for valuation undoubtedly precludes differences in the proper sense of the term; it prevents differences, and does not settle any which have arisen."

Russell, in his work on Arbitration (3d ed.), p. 43, after referring to these cases, says: "The valuer, etc., is not an arbitrator in the proper sense, unless there have been differences between the parties. on the point previous to their submitting it to his decision. A decision which precludes differences from arising instead of settling them after they have arisen is for many purposes not an award.” See Morse on Arbitration and Award, 40.

In Garred v. Macey, 10 Mo. 161, the agreement provided that in consideration that A. shall give possession of certain public land to B., B. shall pay the value of the improvements, to be ascertained by five householders. It was held that the decision of the persons thus selected was not an award.

In Curry v. Lackey, 35 Mo. 389, the agreement was to leave to a third person, to determine the value between two slaves exchanged. It was held this did not make such person an arbitrator. The court said: "A reference to arbitration occurs only where there is a matter in controversy between two or more parties."

See, also, to a like effect, opinion of Senator SEWARD in Garr v. Gomez, 9 Wend. 649; Mason v. Bridge, 14 Me. 468; Oakes v. Moore, 24 id. 214; Rochester v. Whitehouse, 15 N. H. 468.

There was here no matter in controversy when the leases were executed, or for that matter, when the appraisers were selected, and the object was to preclude or prevent the arising of differences, and not to settle the differences which had arisen.

The reason that notice of the time and place that arbitrators in

Norton v. Gale.

Morse on Arbitration and Award, 117.

tend to act upon the matter submitted to them is required, is to enable the parties to present their case by evidence and by argument. And so notice of the meetings of the arbitrators for the purposes of deliberation and making up the award need not be given, since the parties are not expected to attend. Id. 118.

But where the office of the party to whom the submission is made is limited to a simple appraisal of value, he is expected to act on his own knowledge and opinions only. And hence, neither evidence of witnesses nor statements of parties or counsel is contemplated. 2 Pars. on Cont. (6th ed.) 706, note n; Eads v. Williams, 31 Eng. L. and Eq. 203.

By the express terms of the leases, the persons to be selected here are not to ascertain and determine, from witnesses or otherwise, but simply to "appraise the cash value of said premises," etc. They are to be disinterested holders of real property of the city, and one is to be selected by each party. So it is to be presumed, the design was to select those who would need no evidence or argument, but be prepared at once to make a valuation. The language used precludes delay, and requires those selected to "at once proceed," not to inquire or hear evidence or argument, but "to appraise," that is to say, fix a valuation on the property. The language, in our opinion, as plainly means this as any language that might have been. employed could.

Conceding that we are right in holding that under this language appellant would not have been entitled, as a matter of right, to have introduced witnesses, or have been heard, by himself or counsel, on the question of the value of the property, it is quite clear that he was not entitled to notice, for it cannot be that a party is entitled to a notice which will enable him to exercise no right or privilege.

We think the judgment of the Appellate Court was right, and it must therefore be affirmed.

6

Judgment affirmed.

NOTE BY THE REPORTER.- DICKEY, J., delivered the following dissenting opinion: "I cannot concur in this judgment or the reasoning on which it rests. For many purposes, this proceeding was not an arbitration, and the award of the appraisers is not such an award as spoken of in our statutes concerning · Arbitration and Awards.' It was, however, a matter to be determined between the parties by the judgment of the appraisers; a determination by which the parties were to be bound, as by the judgment or decree of a court. In other words, the conclusion reached was to become and be res judicata, as to the then value of this property. In all such cases, whether the proceeding be before a