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Neel v. McCreery (1898) 17 Ohio C. board of appraisers to be selected by C. 612, 9 Ohio C. D. 434.

the parties to the lease, each selecting In Arnot v. Alexander (1869) 44 one, with authority in these to select Mo. 25, 100 Am. Dec, 252, the contract a third in case the two should disafor renewal sought to be enforced was gree. The standard of valuation as follows: "If this lease shall not be would be the same in both cases, to terminated by forfeiture or any other wit, the rentable market value of the cause before the expiration of the five premises at the time the valuation years, then said lessee or his legal should be made. If the court may hear assigns shall be entitled to a renewal evidence and ascertain for itself the of the same for five years longer; pro- value when the appraisement fails vided said parties can agree upon through a refusal to appoint an apterms, or that said lessee is willing to praiser, why may it not hear evidence give as much as any other responsible and decide the value when the apparty will agree to give." Denying the praisement fails from some other contention that this provision was too cause? The whole supposed difficulty indefinite to be specifically enforced, rests upon the idea that what ‘rethe court said: “The uncertainty and sponsible parties will agree to give' indefiniteness complained of, upon for the use of rentable business propwhich the defense is rested, are sup- erty is different from and may be posed to attach to the provisions re- 'something more than its full or highspecting the quantum of rent to be est rentable market value. This view reserved for the renewal term of the of the subject we conceive to be lease. The provision itself is express erroneous. For whose benefit, and to and unequivocal, although it fails to what end, was this clause of renewal fix a specific amount of rent. That introduced into the deed of lease? was to be determined by what other Evidently it was intended for the beneresponsible parties would agree to fit of the lessee, and may be supposed give' at the expiration of the first term to have formed an inducement to the of five years. The amount of rent thus original renting. If the condition to to be reserved is no more uncertain or the renewal included the payment by indefinite than it is in all that class the lessee of anything more than the of cases where the amount of rent for highest rentable market value of the the renewal terms is left to be deter- leased premises, of what advantage mined by the valuation of third par- could it be to him? Such a constructies. In these cases it is not denied tion of the clause defeats the evident that the covenant for renewal is suf- purpose and understanding of the parficiently definite, express, and un- ties, as that purpose and understandequivocal, to justify their enforcement ing is gathered from the language they in chancery. The court, in such cases, employ. The lessee, instead of being will hear evidence, and fix the amount put to a disadvantage in the general of rent, and decree specific perform- competition, was to be a favored party. ance, or hold the covenant liable in By the terms of the contract he was to damages for the breach of his cove- have the preference over other renant. Hall v. Warren (1804) 9 Ves. sponsible bidders, and the irresponJr. 605, 32 Eng. Reprint, 738; Black- sible were excluded from the circle of more v. Boardman (1859) 28 Mo. 420; competition. The amount of rent, Finncy v. Cist (1863) 34 Mo. 303, 84 therefore, was to be determined from Am. Dec. 82; Garnhart v. Finney the competition that might arise be(1867) 40 Mo. 449, 93 Am. Dec. 303; tween exclusively responsible bidders 2 Story, Eq. Jur. SS 722, 751. Leaving in a fair and open market, that is, the amount of rent for the renewal by the market value of the premises term of the lease to be ascertained by at the time of renewal. It is to be what responsible parties would agree presumed that

the parties conto pay for the use of the premises fixes tracted with reference to fair, reathe rent with as much certainty as sonable, and practical results, and the though it were to be determined by a language employed by them should

have a fair, reasonable and practical Where a lessee has violated the construction. While equity does not terms of his lease as to the uses to make contracts for parties, it gives. which the premises shall be put, he construction to contracts which par- cannot obtain a decree for specific ties make for themselves, and therein performance of a covenant in the lease employs the same rules of interpreta- for renewal. Gannett Albree tion which prevail in courts of law. (1869) 103 Mass. 372. No forced construction which calcu- An agreement in a lease for a relates remote chances and possibilities, newal term, "rent to be apportioned and which tends rather to defeat than to the valuation of the said premises give effect to the real purposes of the at said time," has been held to be too contract, will be resorted to in order vague to permit of enforcement by to turn an injured party over to in- specific performance. Pray v. Clark adequate legal remedies. It is against (1873) 113 Mass. 283, wherein it was good conscience that the lessor in this said:

"The agreement sought to be case should be allowed a right of elec- enforced is not complete in all its tion whether he will honestly perform terms. It is not simply for a renewal his covenant or simply pay damages of the lease. The agreement does not for a breach of it; but it is in every fix the rate of rent, and does not perway reasonable and just that the mit it to be fixed by the reservation in lessee should elect his remedy, and the original lease. The only means of either take damages at law or have a determining what it shall be are that specific performance in equity.” it is to be 'proportioned to the valua

An agreement for the renewal of a tion of said premises at said time.' lease on the lessee giving the same But no valuation is provided for, and rent that the lessor "might be able no mode indicated by which such to obtain from other parties" is too valuation may be obtained. If it were indefinite and uncertain to sustain a obtainable, the proportion would still decree for specific performance, as the be inadequate for its own resolution, rate of rent cannot be certainly ascer- because the terms of the correspond. tained. Gelston v. Sigmund (1867) 27 ing ratio are uncertain. If the rent Md. 334.

of the original lease be taken as one In Banman v. Binzen (1891) 47 N.

of those terms, the other is wanting. Y. S. R. 67, 16 N. Y. Supp. 342, affirmed

It does not appear by what valuation in (1892) 65 Hun, 39, 19 N. Y. Supp.

that rent was fixed. The agreement is 627, wherein it appeared that a cove

too uncertain and vague in its essennant for renewal merely provided that

tial terms to justify the court in unon the expiration of the lease the

dertaking to conjecture what may have lessor would "renew the lease," it was held that the contract was too indefi

been intended for the purpose of ennite, both as to the length of the term

forcing upon the parties some conand the rent to be paid, to be specifi-tract of the kind to which their writcally enforced. The court said: "I am ing relates." of opinion that the specific perform

It has been held that the fact that a ance sought cannot be decreed, be

tenant holding under a lease containcause the covenant for a renewal is ing a covenant for renewal did not ask too indefinite, from not naming the for a new lease for four years after the length of term or rental to be paid. It original lease had expired did not would be impossible for the court to preclude his having specific performrender a decree without making a con

ance of the agreement, when the tract for the parties in those respects.

landlord did not call on him to exerThere are no provisions in the writing cise his option or decline it at an to enable the court to determine the earlier period. Moss v. Barton (1866) duration of the renewal lease and the L. R. 1 Eq. 474, 35 Beav. 197, 55 Eng. rent to be paid. The manifest ab- Reprint, 870, 13 L. T. N. S. 623. sence of particularity is fatal."

M. B.

STATE OF WASHINGTON, Appt.,

V.
W. C. DAWSON & COMPANY, Respt.

Washington Supreme Court (In Blanc) - December 20, 1922.

(122 Wash. 572, 211 Pac. 724.) Workmen's compensation — application of state law to stevedoring busi

ness. A state cannot bring the stevedoring business within the operation of its Workmen's Compensation Law so as to require the employer to contribute to the insurance fund, in view of the provision of the Federal Constitution extending the judicial power of the Federal courts to all cases of admiralty and maritime jurisdiction.

[See note on this question beginning on page 518.]

APPEAL by plaintiff from a judgment of the Superior Court for King County (Gilliam, J.) sustaining a demurrer to the complaint and dismissing an action brought for the collection of industrial insurance premiums. Affirmed.

The facts are stated in the opinion of the court. Messrs. L. L. Thompson, Attorney 64 L, ed. 834, 11 A.L.R. 1145, 40 Sup. General, and John H. Dunbar, Assist- Ct. Rep. 438, 20 N. C. C. A. 635; The ant Attorney General, for appellant: Lottawanna (Rodd v. Heartt) 21 Wall.

The Stevedoring business comes 558, 22 L. ed. 654; The Hamilton (Old within the operation of the Workmen's Dominion S. S. Co. v. Gilmore) 207 Compensation Law, and the state has U. S. 398, 52 L. ed. 264, 28 Sup. Ct. the right to require the employer to Rep. 133; The Siren, 7 Wall. 152, 19 L. contribute to the insurance fund. ed. 129; The Davis (United States v.

Western Fuel Co. v. Garcia, 257 U. Douglas) 10 Wall. 15, 19 L. ed. 875; S. 233, 66 L. ed. 210, 42 Sup. Ct. Rep. The Avon, 1 Brown, Adm. 170, Fed. 89; Grant-Smith-Porter Ship Co. v. Cas. No. 680; Den ex dem. Murray v. Rohde, 257 U. S. 469, 66 L. ed. 321, 25 Hoboken Land & Improv. Co. 18 How. A.L.R. 1008, 42 Sup. Ct. Rep. 157; At- 272, 15 L. ed. 372; Martin v. Hunter, lantic Transport. Co. v. Imbrovek, 234 1 Wheat. 304, 4 L. ed. 97; Chelentis v. U. S. 52, 58 L. ed. 1208, 51 L.R.A.(N.S.) Luckenbach S. S. Co. 247 U. S. 372, 62 1157, 34 Sup. Ct. Rep. 733; Wisconsin L. ed. 1171, 38 Sup. Ct. Rep. 501, 19 v. Duluth, 2 Dill. 406, Fed. Cas. No. N. C. C. A. 309; The Roanoke, 189 U. 17,902; Southern P. Co. v. Jensen, 244 S. 185, 47 L. ed. 770, 23 Sup. Ct. Rep. U. S. 205, 61 L. ed. 1086, L.R.A.1918C,

491. 451, 37 Sup. Ct. Rep. 524, Ann. Cas. Messrs. Guie & Halverstadt and 1917E, 900, 14 N. C. C. A. 597.

George F. Vanderveer also for reMessrs. Cosgrove & Terhune, for re- spondent. spondent:

Main, J., delivered the opinion of Stevedores and their employers do the court: not come within the operation of the This action was brought for the Workmen's Compensation Act.

purpose of collecting premiums upState ex rel. Jarvis v. Daggett, 87

on the pay roll of the defendant corWash. 253, L.R.A.1916A, 446, 151 Pac.

poration, which was engaged in the 648, 10 N. C. C. A. 688; Shaughnessy v. Northland S. S. Co. 94 Wash. 325,

business of stevedoring. A demur162 Pac. 546, Ann. Cas. 1918B, 655;

rer was interposed to the complaint, Puget Sound Bridge & Dredging Co.

which was sustained by the trial v. Industrial Ins. Commission, 105

court. The plaintiff refused to Wash. 272, 177 Pac. 788; Knickers plead further, and elected to stand bocker Ice Co. v. Stewart, 253 U. S. 149, upon its complaint, and a judgment

(122 Wash, 572, 211 Pac. 724.) was entered dismissing the action, Constitution of the United States, from which the plaintiff appeals. the acts of Congress, and the hold

The question to be determined is ings of the Federal Supreme Court. whether the industrial insurance de- Reference will first be made to the partment of the state government acts of Congress. has the right to collect from an em- Prior to 1917, clause 3 of $$ 24 ployer engaged in the business of and 256 of the Judicial Code (U. S. stevedoring a percentage of his pay Comp. Stat. $$ 991[3], 1233, 4 Fed. roll. In other words, is the steve- Stat. Anno. 2d ed. pp. 839, 5 Fed. doring business within the jurisdic- Stat. Anno. 2d ed. p. 921) provided tion of the industrial insurance de- that the district courts should have partment, as are other extrahazard- jurisdiction of all civil causes of ous industries in the state? Section admiralty and maritime jurisdic2 of chapter 67 of the Laws of 1919 tion, "saving to suitors, in all cases, provides that “the provisions of this the right of a common-law remedy act [the Workmen's Compensation where the common law is competent Act] shall apply to employers and to give it.” On October 6, 1917 (40 workmen engaged in maritime Stat. at L. 395, chap. 97, U.S. Comp. works or occupations only in cases Stat. $$ 991 (3), 1233, Fed. Stat. where and to the extent that the pay Anno. Supp. 1918, pp. 401, 415), roll of such workmen may and shall $$ 24 and 256 of the Judicial Code be clearly separable and distinguish- were amended by adding a clause able from the pay roll of workmen saving to claimants "the rights and employed under circumstances in remedies under the workmen's comwhich a liability now exists or may pensation law of any state.” This hereafter exist in the courts of ad- act will be referred to as the 1917 miralty of the United States. Amendment. In Knickerbocker Ice

Co. v. Stewart, 253 U. S. 149, 64 L. On the 7th day of November, ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. 1921, the industrial insurance de- Rep. 438, 20 N. C. C. A. 635, that partment passed a resolution deter- amendment was held to be unconstimining and establishing the per- tutional. On June 10, 1922 (42 centage of the pay roll which should Stat. at L. 634, chap. 216, Comp. be exacted from those engaged in Stat. $$ 991 (3), 1233, Fed. Stat. the stevedoring business. It was to Anno. Supp. 1922, p. 225), Congress collect this premium that the pres- passed another amendatory act ent action was brought. The work which declared, among other things, of a stevedore is maritime in its na- that the rights and remedies conture, and the rights and liabilities of ferred under the workmen's comthe parties connected therewith are pensation law of any state, district, matters which are within the ad- territory, or possession of the Unitmiralty jurisdiction of the United ed States should be exclusive, and States. This is settled by the hold- provided “that the jurisdiction of ings of the United States Supreme the district courts shall not extend Court, which were followed by this to causes arising out of injuries to court in State ex rel. Jarvis v. Dag- or death of persons other than the gett, 87 Wash. 253, L.R.A.1916A, master or members of the crew, for 446, 151 Pac. 648, 10 N. C. C. A. which compensation is provided by 688. It is said, however, that the the workmen's compensation law of Congress of the United States has any state, district, territory, or postaken from the Federal district session of the United States." courts jurisdiction over admiralty By this amendment Congress atmatters where, under the work- tempted to take from the district men's compensation law of any courts jurisdiction where the workstate, district, or territory, there is men's compensation law of any a complete remedy. The question state, district, or territory had given to be determined is one under the a remedy. It was an attempt, in effect, to bring within the work- line between maritime law and local men's compensation law of any state law; nor does it lay down any crior territory, a branch or a part of terion for ascertaining that boundthe admiralty jurisdiction of the ary. It assumes that the meaning United States. If Congress can do of the phrase "admiralty and marithis, the industrial insurance de- time jurisdiction' is well understood. partment of the state had a right to It treats this matter as it does the collect from the respondent premi- cognate ones of common law and ums upon its pay roll, but Congress equity, when it speaks of 'cases in has not the exclusive right in deter- law and equity,' or of 'suits at commining where matters which are mon law,' without defining those within the admiralty jurisdiction of terms, assuming them to be known the United States shall be adjudicat- and understood. ed. Article 3, § 2, of the Federal "One thing, however, is unquesConstitution, provides, in part, as tionable; the Constitution must have follows: "The judicial power shall referred to a system of law coexextend to

31 A.L.R.-33.

all cases of ad- tensive with, and operating unimiralty and maritime jurisdiction. formly in, the whole country. It

certainly could not have been the inIn The Lottawanna (Rodd v. tention to place the rules and limits Heartt) 21 Wall. 558, 22 L. ed. 654, of maritime law under the disposal the extent of the maritime law op- and regulation of the several states, erative throughout the United as that would have defeated the uniStates was discussed, and it was formity and consistency at which there said that the Constitution, in the Constitution aimed on all subthe provision above quoted, must jects of a commercial character af. have referred to a system of law co- fecting the intercourse of the states extensive with, and operating uni- with each other or with foreign formly in, the whole country. The states.” language of the court was as fol- In Atlantic Transport Co. v. Imlows:

brovek, 234 U. S. 52, 58 L. ed. 1208, “That we have a maritime law of 51 L.R.A. (N.S.) 1157, 34 Sup. Ct. our own, operative throughout the Rep. 733, it was held that a mariUnited States, cannot be doubted. time tort was embraced within the The general system of maritime law constitutional grant. It was there which was familiar to the lawyers said:

said: “The Constitution provides and statesmen of the country when that the judicial power shall extend the Constitution was adopted was 'to all cases of admiralty and mari. most certainly intended and re- time jurisdiction, and the act of ferred to, when it was declared in Congress defines the jurisdiction of that instrument that the judicial the district court, with respect to power of the United States shall ex- civil causes, in terms of like scope. tend to all cases of admiralty and To hold that a case of a tort commitmaritime jurisdiction.' But by

by ted on board a ship in navigable wawhat criterion are we to ascertain ters, by one who has undertaken a the precise limits of the law thus maritime service, against one enadopted? The Constitution does not gaged in the performance of that define it. It does not declare wheth- service, is not embraced within the er it was intended to embrace the constitutional grant and the jurisentire maritime law as expounded dictional act, would be to establish a in the treatises, or only the limited limitation wholly without warrant.' and restricted system which was re- In Southern P. Co. v. Jensen, 244 ceived in England, or, lastly, such U. S. 205, 61 L. ed. 1086, L.R.A. modification of both of these as was 1918C, 451, 37 Sup. Ct. Rep. 524, accepted and recognized as law in Ann. Cas. 1917E, 900, 14 N. C. C. this country. Nor does the Consti- A. 597, it was pointed out that it tution attempt to draw the boundary was difficult, if not impossible, to

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