J. F. Hart Lumber Co. v. Everett Land Co. , 20 Wash. 71 ( 1898 )

The opinion of the court was delivered by

Scott, C. J.

In December, 1891, the defendant leased to the plaintiff a piece of land on the west hank of the Snohomish river, for a certain stipulated rental, for the period of five- years. The controversy in this action arises over the construction to be given the following clause, contained in the lease:

“At the expiration of the above mentioned term of five years the said first party shall pay to the said second party the actual value of any wharf or dock which said second party may have placed in the river in front of the hereby demised premises, it being understood and agreed that said first party is not to pay for any improvements which may have been made on said premises hereby demised west of the hank of said river, or for anything except the actual cost of making a dock or wharf in front of said premises, said appraisement to be made in the following manner: Each party to this agreement shall choose one appraiser and in case said appraisers cannot agree, they two shall choose a third and his decision shall he final and conclusive.”

Under that clause, the plaintiff claimed the right to recover either the cost of the wharf, in 1891, or the cost of a similar wharf, in 1896, at the expiration of the term. The defendant contended that there could he a recovery only for the actual value of the wharf at the expiration of the lease, not exceeding its cost. The action was brought to recover the cost of the wharf when constructed, and the complaint contained no allegation of its value at the expiration of the lease. A demurrer to the complaint having been sustained and judgment rendered thereon, the plaintiff has appealed. The clause in question is contradictory in first speaking of the value and next of the cost of the wharf; but we are of the opinion that the respondent’s contention should prevail, for the lease provided that appraisers should he appointed, and evidently they were to determine the value of the wharf. Although the lease is inartifieially drawn in this respect, as well as in the ■other, the reasonable construction is that they were to ■appraise the value, and not to arbitrate as to the cost of the wharf in case of a disagreement between the parties. In its reply brief, the appellant contends that the judgment was wrong in any event, for the reason that the complaint stated a cause of action for the value of the wharf at the expiration of the lease, relying upon paragraph 11, which states:

“ . . . that the actual cost of making such a wharf was twenty-seven hundred forty-five (2,745.00) dollars, . . . said sum being the value thereof as contemplated by said contract.”

But this was insufficient as an allegation of value, being qualified by the words “as contemplated by said contract;” and tbe action was evidently brought and determined upon tbe theory that the plaintiff was entitled, and was seeking to recover, the cost. It apparently was not contended otherwise in the lower court, as the point was-not even urged in the opening brief.

The judgment of the lower court is affirmed, but without prejudice to the bringing of another action for the-value of the wharf at the expiration of the lease, not exceeding its cost.

Dunbar, Anders and Reavis, JJ., concur.