Pontotoc County MsArchives Court.....Orne, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Orne, Appellant, v. Sullivan.

pages 161-164

A contracted with B to purchase and improve lands, and it was stipulated, that 
if A did not see proper to buy said lands at a price to be agreed upon by the 
parties, then B was to pay so much for the improvements as two disinterested 
persons should say they were worth. The price could not be agreed on, and B 
refused to choose a person to value the improvements, but selected a person to 
survey the land. A selected another person to survey and appraise. The two 
persons thus appointed surveyed and valued the improvements at 584 dollars. A 
brought an action of assumpsit on the agreement; and B demurred to the 
evidence. The jury in a conditional verdict, assessed the plaintiff’s damage 
at 636 dollars and 14 cents. The court overruled the demurrer and gave 
judgment for the plaintiff in the last mentioned sum.

By the court: B was bound to appoint a person to appraise the improvements. 
His acts anounted to a refusal to choose an appraiser, which authorized A to 
have the improvements valued. B could not defeat the contract by failing or 
refusing to choose a person to value. Every thing is to be taken most strongly 
against him on whom the obligation rests. A having done all in his power, the 
justice of the cause is manifestly with him, and for these reasons the 
judgment must be affirmed.

APPEAL from the circuit court of the county of Pontotoc.

Gholson, for the appellant.

Miller, contra, cited Gibson and Johnson v. Hunter, 2 Hen. Black. Rep. 187; 
Cocksedge v. Fanshaw, Doug. Rep. 119; Vere v. Lewis, 3 Term. Rep. 182; 1 
Starkie on Evidence, 467; 15 Serg. & Rawle, 227; 2 Call, 555, and 574; 5 Rand. 
Rep. 1; 3 Leigh, 147; 4 Rand. 352; 3 Ibid. 68.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

Sullivan brought this action on a special contract entered into between 
himself and Orne, concerning improvoments to be made on a tract of land which 
belonged to Orne. That portion of the agreement which it is necessary to 
consider in order to settle the question made for adjudication, is in these 
words: "And if the said Sullivan shall not think proper to buy said lands at 
such price as they may fix thereon, then, and in that case the said Orne 
agrees to pay him the said Sullivan, so much for the improvements that he may 
make on said two sections of land, as two disinterested persons may value said 
improvements to be worth."

As there was a demurrer to the evidence, it will be necessary to collect the 
substance of what was proved, and then make an application of the law of the 
contract. Watts, the agent of Sullivan, stated that improvernents had been 
made on the land; that he called on Orne at the request of Sullivan, and 
stated to him that he wished to settle the matter. Orne stated to him, that he 
had selected Pinson on his part to survey the land, and the witness replied, 
that he selected Hodges. Orne then said that all they (Pinson and Hodges) 
would have to do would be to survey the lands; that they (meaning himself and 
others) have fixed rules for valuing improvements. That after a valuation had 
been made by Pinson and Hodges, he called on Orne with it, who objected to 
pay, and stated that he had only authorised Pinson to survey the land, and not 
to estimate the value. Pinson was then introduced, and proved that he was 
notified by Watts, of his appointment to value the improvements. Witness and 
Hodges, appointed a day to attend to it, and when they were about doing so, 
the witness called on 0rne to know whether he would go; he replied that it was 
not worth while, that all they had to do was to survey the land. Witness 
returned to Watts, and informed him what Orne said, and was answered, that 
they had an agreement, which they examined, and concluded it was their duty to 
value the improvement, and he again informed Orne of their determination, who 
again stated that they were only to measure the land, and that they had a rule 
by which to pay for the improvements, and again said that it was not worth his 
while to go. The witness and Hodges, then went and valued the improvements.

We must first give a fair interpretation of the contract, and see what was to 
be done by each party before the other could be bound. The agreement was to 
pay so much as two disinterested persons should say the improvements were 
worth. It was therefore a matter wholly immaterial whether Orne had rules for 
fixing the value or not. It was not the contract that his rules should govern. 
How were these disinterested persons to be chosen? No mode was agreed on, and 
it must, therefore, have been the intention that one should be chosen by each 
party, but Orne could not defeat the contract by failing or refusing to 
choose; and if he so failed, or refused on request for that purpose, then 
Sullivan’s power to have the valuation made must be undisputed. A different 
construction would place it in the power of Orne, to defeat the right to 
recover, by refusing or failing to select an arbitrator. We have only to 
determine, therefore, whether he so far failed or refused, as to justify 
Sullivan in having the appraisement made. No positive refusal is shown, but 
still it may be implied from his acts. He was called on by the agent of 
Sullivan, for the purpose of appointing an appraiser; he promptly answered 
that he had selected Pinson to survey the land. This remark was well 
calculated to mislead the agent of Sullivan, because surveying the land was no 
part of the contract. It might, as a preliminary step, have been necessary in 
order to the correct ascertainment of the value of the improvements, but it 
was his duty to have stated the object of the survey, and if intended merely 
as a preliminary measure, it was also his duty to have selected an appraiser. 
His reason for not doing so, is fully disclosed by the subsequent testimony. 
When called on by Pinson to accompany the appraisers, he stated that it was 
unnecessary, as they had but to survey the land, and that he then had rules, 
by which the improvement was to be valued. From this it is obvious, that he 
intended to value the improvement according to his own rules, and not to have 
it done according to the contract. His rules, however, could in no respect 
govern in the valuation, nor could the existence of such rules afford any 
excuse for his failure to comply with the contract. He had notice that the 
improvements would be appraised, and was again called on to accompany the 
appraisers, and again stated that he wond not go, as they would have nothing 
to do but to survey the land. He then made no objection to the appraisers, but 
his opposition to any appraisement was again manifested, by his declaration 
that the appraisement was to be made according to the rules which he had for 
that purpose. This conduct was certainly tantamount to an express refusal to 
have the land valued, and is irreconcilable with an intention to comply with 
the terms of the contract. He was not only requested to make an appointment of 
an appraiser, but was actually advised that they would appraise the land. If 
he thought Pinson an unsuitable person for that purpose, he had an ample 
opportunity to select another, and why did he not do so? The reason is 
manifest: he did not intend to have the improvements valued in any other way 
than according to his own rules. The same object was again manifested, when he 
was informed of the appraisement. He then stated that it was too high, and 
that he had rules by which to regulate the appraisement. His reply to Pinson, 
when informed that they had examined the contract, and thought it their duty 
to appraise the improvement, was equivalent to a direct refusal. The rules 
which he pretended to insist on can afford him no shield against the force of 
his contract, but this was evidently his pretext for the failure. No 
intimation was ever given, that he intended to appoint an appraiser, and the 
whole course of his conduct shows that he did not; his object being to settle 
the value on his own terms. As the party on whom the obligation of the 
contract rested, every thing is to be taken most strongly against him, but 
even on a fair interpretation, his acts amounted to a refusal to appoint an 
appraiser, and justified Sullivan in having the value fixed according to the 
contract; and having done all that he could, the justice of the case is 
manifestly with him, and for these reasons the judgment must be affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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