Thompson v. Newman

LENNON, P. J.

On the sixth day of October, 1914, plaintiff and defendant entered into a written agreement by the terms of which they agreed to settle a controversy existing between them “with respect to their rights in the growing and down timber” standing and lying upon certain designated land.

The terms of the agreement were in substance these: Within thirty days after the report of “arbitrators” who were to be chosen by the parties according to the method provided by the contract, the plaintiff promised to pay to the defendant the sum estimated by the said “arbitrators” as the value “of all the down and standing redwood and pine timber . . . suitable for merchantable lumber and suitable for the making of ties.” The defendant agreed that upon such payment he would make, execute, and deliver to the plaintiff, her heirs and assigns, a deed of all of the said timber. The contract in controversy, among other things, provided that “each of said parties . . . shall appoint and name one per'son as an arbitrator and the two arbitrators so appointed by the parties . . . shall agree upon and appoint a third person to act as arbitrator in said matters and . . . each and all of said arbitrators shall be men experienced in buying, selling or estimating of redwood or pine timber in the county of Mendocino, state of California. ...”

The two parties first named in the contract as “arbitrators” failed to agree upon a third person, and one of them subsequently refused to act. In his place and stead, the judge of the superior court of Mendocino County, pursuant to a provision in the contract covering such a contingency, designated another person to act, and he with the person appointed in the first instance, and who had consented to act, met on the nineteenth day of April, 1915, surveyed the timber and appraised its value at the sum of $190. Thereafter on April

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26, 1915, plaintiff tendered to defendant the sum of $190 and demanded a conveyance of the timber. Defendant declined the tender and refused to execute the conveyance.

Thereupon the plaintiff brought this action for specific performance, wherein the court below, in effect, found that although designated in the contract as arbitrators, the parties who made the valuation were intended to be and were in fact but mere appraisers and that they had made a fair, just, and reasonable estimate of the quantity and value of the timber which was the subject matter of the contract here. From the judgment entered in favor of the plaintiff, decreeing specific performance, the defendant has appealed.