Hug v. Van Burkleo

58 Mo. 202

• Court: Supreme Court of Missouri
• Decided: October 15, 1874
• Status: Published

Opinion

Sherwood, Judge,

delivered the, opinion of the court.

Where parties to a lease, by the terms of the instrument, agree that upon the surrender of the leasehold premises the value of improvements made thereon shall be ascertained by three householders, the lessor and the lessee each to select one, and those so selected to choose a third; in’ the event of the refusal of either to comply with such stipulation, it is out of the power of a court of equity, by the appointment of appraisers or otherwise, to specifically enforce the contract thus made. A petition, however, which seeks to obtain equitable relief based on the above stated ground, will, although it asks for specific performance of such a contract, still state a cause of action, as equity would have jurisdiction in such cases to have an account taken as to-tlie value of improvements made. Both these points were so ruled in the case of Biddle vs. Ramsey (52 Mo., 153).

The judgment of the court below, because it attempts to specifically enforce the contract made in the present instance between the lessor and the lessee, by the appointment of three householders to appraise or ascertain the value of the improvements made on the property leased, must be reversed ■ and the cause remanded;

the other judges concur.