
    Stewart S. Haff, (who prosecuted with John Lyon,) Plaintiff and Respondent, v. Benjamin Blossom and Charles W. Blossom, Defendants and Appellants.
    Where the owners of property sell and deliver it to third persons by whom, it is received and enjoyed under a written agreement signed by the vendors and vendees, and such agreement is, in form and terms, that the vendors and vendees “ constitute and appoint B. and W. to appraise” the property, and “bind themselves each to the other to abide by their valuation of the same, at which” (the vendors) “agree to sell the same to” the vendees, and the latter “agree to buy the same ” of the vendors; and in case B. and W. “should be unable to agree in their valuation, they shall select a disinterested party, as usual in such cases, to assist them in the appraisement;"’ and where B. and W. being unable to agree, selected a third person, and the three met together and examined the property, and two of them agreed upon a valuation, the vendors are entitled to recover the sum so agreed upon, although such third person was selected upon an 'agreement between him and B. and W. that he should fix the value and they would concur in it, provided that agreement was abandoned, and the three did in fact meet and examine the property together, with a view to determine its fair value, and the value so agreed upon was fixed in good faith, and expressed the honest ■ judgment of the two who concurred in respect to it.
    (Before Bosworth, Oh. J., and Hoffman and Monorief, J. J.)
    Heard, December 7;
    decided, December 31, 1859.
    This is an appeal by the defendants from a judgment in favor of the plaintiff, Haff, entered upon the verdict of a jury. The trial was had before Boswobth, Ch. J., and a jury, on the 7th of March, 1859. John Lyon and Stewart S. Haff are the plaintiffs upon the record; and Benjamin Blossom and Charles A. Blossom are the defendants.
    The action was brought to recover the price of certain sheds sold and delivered by the plaintiffs to the defendants.
    The plaintiffs, being the owners of certain sheds, entered into a written agreement with the defendants in these words, viz.:
    “We hereby constitute and appoint James B. Barney and William S. Wright to appraise the sheds and fixtures now on the premises foot of Montague street, Brooklyn, known as Lyon & Half’s Haval Store Yard, and bind ourselves each to the other to abide by their valuation of the same, at which we, Lyon & Haff, agree to sell the same to Benjamin Blossom & Son; and we, Benjamin Blossom & Son, agree to buy .the same of Lyon & Haff It being hereby agreed that in case the appraisers named above should be unable to agree in their valuation, they shall select a third and disinterested party, as usual in such cases, to assist them in the appraisement.
    “ Witness our hands this 25th day of April, 1854.
    “ (Signed)
    “ Benjamin Blossom & Son,
    “ Lyon & Haff.”
    The complaint sets forth the agreement, and alleges that Barney and Wright, being unable to agree upon a valuation, selected one Robert White to assist them in the said appraisement; that the three met and examined the property, and that Wright and White agreed that its value was $2,250, and signed a written certificate to that effect, dated August 21, 1854; that the defendants refuse to pay the plaintiffs the price so fixed, or any part thereof; and it prays judgment for $2,250 and interest from August 21, 1854.
    The defendants gave evidence tending to show that when White was selected to act, he was selected upon an agreement between Barney and Wright that he should fix the valuation, and that they should agree to it whatever it might be.
    The plaintiffs also gave evidence tending to show that, as matter of fact, the three met together and examined the property with a view, by means of an actual examination, to agree upon the value, and that the sum agreed upon by Wright and White was fixed in good faith as a result which they believed to be just.
    There was some evidence that when the three were last together Wright agreed to communicate to the plaintiffs a proposition then made by Barney, and to see him again in relation to it.
    The defendants proved, under a supplemental answer which they had been allowed to file, that on the 29th of January, 1859, the defendants settled with Lyon, and paid him in full for his half interest in the present cause of action, and released him therefrom, it being part of such agreement that “ Stewart S. Haff be permitted to proceed with said action, or settle the same as he may choose, as to one-half of the cause or claim on which said action is founded,” &c
    The Judge was requested to charge:
    1. If, when the appraisers were last together, they separated agreeing to meet again, Wright and White had no power in the absence of Barney, or without notifying him of the time of meeting, to make an appraisal.
    2. That Wright and Barney had no power to select White, and agree that his appraisal should govern, and if they did so, then there has been no valid appraisal, and the plaintiffs cannot recover.
    3. That if the jury find that the appraisal was made in accordance with the terms of the agreement, that the jury are to find for one-half only of the appraisal with interest, in favor of the plaintiff Haff, and that they shall find for the defendants as against the plaintiff Lyon.
    
      4. That1 if Wright concurred with White, because he supposed that he was bound by the appraisal of White, then the appraisal is not binding.
    The Judge then charged as follows:
    “The plaintiffs are entitled to recover $1,275, and interest from August 21st, 1854, or nothing.
    “If Wright and Barney were unable to agree, and thereupon selected Robert White to assist them in the appraisement, and the three met together and examined the property, and White and Wright, as the result of the examination, and of the deliberation had by and between the three, united in and agreed upon the sum of $2,550 as a fair and just valuation of the property, the plaintiffs are entitled to recover. But if White was selected by Wright and Barney to fix the value, and if Wright and Barney agreed that they would be bound by White’s valuation, and so told him; and if he, acting under this selection, and for such purpose, fixed the sum of $2,550 as the value, then he acted in a manner not authorized by the agreement of the 26th of April, 1854, and under powers which that paper did not authorize Barney and Wright to confer, and the appraisal signed by White and Wright is void, and there can be no recovery in this action.”
    (To this instruction the plaintiffs’ counsel excepted.)
    “ The parties have a right to an appraisal made upon the honest effort of the three to fix a just valuation, based upon such information as- they deemed useful in coming to a correct conclusion, and upon an interchange between them of the views which they severally thought should influence them in determining such value.
    “ But although the jury may be of the opinion that White was selected under an agreement or understanding between Wright and Barney, that he should determine the value, and they would be bound by his valuation, yet if the evidence satisfies you that the three afterwards met and examined the property with a view to and for the purpose of determining its value, and that the valuation of $2,550 was finally assented to and agreed upon by Wright, because such, in his judgment, was a fair and just value of the property ; and also, that such was the opinion and judgment of White, then the appraisal is valid, and the plaintiffs are entitled to recover.”
    
      (To this part of the charge the defendants’ counsel then excepted.)
    The Court declined to submit to the jury the proposition, embraced in the first request, and to such refusal the defendants’ counsel excepted.
    The jury rendered a verdict against the defendants for $1,681.11 in favor of plaintiff Haff.
    The evidence material to the questions covered by the exceptions taken, is stated in the opinion of the Court
    Judgment having been entered on the verdict, the defendants appealed from it to the General Term.
    
      G. Dean, for appellants, (defendants.)
    
      A. J. Willard, for respondent, (plaintiff.)
   By the Court—Bosworth, Ch. J.

This-action-is-brought to recover the value of certain sheds and fixtures sold and delivered by Lyon & Haff to the defendants.. There is no controversy as to the fact of a sale and delivery of the property, or as to the terms of the contract. The sum, or price to- be paid was not agreed upon by the parties..

The contract of sale provided a mode of ascertaining the price to be paid, and if that has been ascertained in the maimer provided, the plaintiffs are entitled to recover.

Ho point was made at the trial or on the argument of the appeal, that Barney and Wright were not unable to agree. There can be none that they did not select White to act in the matter.

Wright testifies that he and Barney “ agreed to call in Robert White,” and they two-went to see him. “I told him we could not agree, then read the agreement signed by the parties, and asked if he would serve ;■ he objected at first; we both persuaded him to go ; we went and examined the premises; he told us he would let us know his valuation next morning—what his opinion was.” The next morning the three met again and compared opinions and separated.

“ A few days'after this, Barney, White and myself met again at the shedk;- White said he could not vary from his first valuation ; that they were worth the full amount; we examined the sheds.”

Barney's testimony is, that he, Wright and White met twice on the matter of agreeing upon a valuation of the sheds, and that White said, on the occasion of the second meeting, that “ he could not alter his appraisal.”

White’s testimony is to the same effect.

Tire fact is established, therefore, by the concurring testimony of the three, that they all met together to examine the sheds, and did examine them, and separated. The next morning they met again, mentioned their respective valuations, and then separated. After this the three had another meeting on the subject, and White told them he should adhere to his valuation, viz., $2,550. Wright, who originally valued them at $2,275, testifies that he subsequently changed his opinion, and regarded them worth $2,550 when he signed the certificate with White. The certificate of valuation signed by the two is in a proper form, and imports that the valuation was made in the manner prescribed by the contract of sale.

The jury found a verdict for one-half of the amount of the valuation; the defendants having, pending the suit, settled with Lyon as to one-half of the claim.

Unless some of the defendants’ exceptions are well taken, the verdict should not be disturbed.

The defendants excepted to the refusal of the Court to submit to the jury the proposition embraced in their request to the Court to charge, that “if, when the appraisers were last together they separated agreeing to meet again; Wright and White had no' power, in the absence of Barney, or without notifying him of a time of meeting, -to make an appraisal.”

It is enough to say of this exception, that there was no evidence entitling the defendants to have that question submitted.

Barney testifies that at the last meeting had by the three, he proposed to Wright that the sheds should be appraised at one-third of their cost, and they went into an office in the yard of the premises to reduce to writing an agreement which he understood had been come to, on the basis of that proposition. But they found that they had misunderstood each other as to that -matter, or at all events differed about it. He says, “We then separated understanding that Wright was to see the plaintiffs, and we meet again.” It is obvious that if Wright was to see the plaintiffs, he was to see them about the proposition which Barney had made, and the future meeting, if any, was to be between him and Wright to learn the plaintiffs’ views.

White testifies that nothing was said to him on that occasion “ about meeting again.” He, of course, did not agree to meet with the others again, nor have any intimation that another meeting was desired by either of them. Barney, at the most, testifies that he “understood” they were to meet again, but he does not testify that anything was said about another meeting.

Wright says, “ I might have said to Barney I would see my parties about thisthat is, about the proposition to pay one-third of the original cost of the sheds. The testimony of Robins and White tends to show that Wright was to see the plaintiffs relative to this proposition.

I do not think this testimony would justify a jury in finding that, when the appraisers were last together, they separated agreeing to meet again.” If this view be correct, then there should not be a new trial, because of the refusal to submit this question to the jury.

The exception taken to the concluding part of the charge, is attempted to be supported on the ground that- if White was selected under an agreement between Wright and Barney, that he should determine the value and they would be bound by it, the selection for such a purpose was a void act, and he was not authorized to act at all.

The proposition charged was, that although he may have been so selected, yet if this agreement or understanding was abandoned, and if they did in fact meet and examine the property together, with a view to determine, and for the purpose of determining its value, and if the certificate was signed in good faith, as expressing the honest judgment of the two thus formed, the appraisal is valid.

It seems to us, that from the time the three met and together examined the property with a view, by their joint action, to reach a valuation which, in their opinion, was just-, White was in fact selected “ to assist them in the appraisement.”

If it be assumed that the jury may have found the question of fact covered by the first branch of the charge in favor of the defendants, then it must be taken as true that they also found that the three, nevertheless, “ afterwards met and examined -the property with a view to and for the purpose of determining its value, and that the valuation of $2,550 was finally assented to and agreed upon by Wright, because such, in his judgment, was a fair and just value of the property, and also that such was the opinion and judgment of White.”

They have found such to be the facts, having before their minds the further instruction that “the parties have a right to an appraisal made upon the honest effort of the three to fix a just valuation, based upon such information as they deemed useful in • coming to a correct conclusion, and upon an interchange between them of the views which they severally thought should influence them in determining such value.”

Such joint action of the three, with such motives and for such purposes, is, so far as White is concerned, the action of a third party selected by Barney and Wright “to assist them in the appraisement,” and presents a case in which those two have acted, in spirit and substance, as the contract for determining the price prescribed.

The judgment and order appealed from should be affirmed. Judgment affirmed.  