Rindge v. . Baker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 211 The contract, under which the parties commenced and proceeded in the construction of the party wall, was for an interest in land, an easement which could not have been acquired by parol; and the defendant's failure to perform it, however injurious that failure may have been to the plaintiff, would not, had the contract remained wholly unexecuted, have afforded him a cause of action. But, the defendant having proceeded with the plaintiff in its execution, so far as to lead the plaintiff to believe that the contract was made not only in good faith but that it would be fully executed on the part of the defendant, insomuch, that the plaintiff had contributed his share to the construction of that part of the wall which, by the contract was to be made of stone; had, at the same time, constructed the cellar or basement walls in his own apartment to conform to the party wall thus constructed by the equal contribution of the parties; and had also procured his timber for use in the construction of the residue of his building, to be cut of the length requisite for use in the brick wall, which, by their agreement, the defendant was, after the completion of the stone wall, to join in constructing upon it. His failure, at this stage of the performance of the contract, by refusing to join in that part of the party wall which was to consist of a brick wall above and to rest upon the stone wall, operated, under the circumstances, as a fraud upon the plaintiff; and, hence, in an action for specific performance an equitable estoppel upon the defendant would have been established, and with the right of the plaintiff to a decree against the defendant for a specific performance of the contract; or, in other words, that he join the plaintiff in constructing the brick wall, as the jury in answer not only to the interrogatory submitted to them, but in substance, by their general verdict, found he had agreed to do. (2 Story Eq. Jur., § 750; Willard Eq. Jur., 283; Malins v. Brown, 4 N.Y., 403,407, 411.) But, because the plaintiff had, and might have pursued this remedy, it by no means proves that he had no other remedy equitable in its character, which would produce the same result in less time *Page 214 and at less expense, and, under the circumstances, better adapted to the ends of justice in a case like the one under consideration. The time which would necessarily have been consumed in the prosecution of an action for specific performance, and the consequent delay in the erection of the wall would, under the exigency of the case in hand, and with all needful arrangements by the plaintiff for completing his half of the wall, and using it in the construction of other parts of his building resulted in damages to him nearly as great, if not greater, than the expenses incurred in constructing the defendant's half. Such a remedy was, therefore, so inexpedient as to amount to a denial of justice, and if the plaintiff has no other equitable remedy, or is not permitted to avail himself of one, he must bear with conceded injustice and blame the law. Such a state of things ought not to be tolerated, and need not be, where established equitable principles prevail. If the wall had been constructed at the joint expense of both parties, as in good conscience it should have been, and repairs upon it had become necessary, each party would have been obliged to contribute to them, and if either party, after notice by the other to do so, had declined, the party giving the notice (as the plaintiff did in this case), might have proceeded, made the repairs, and maintained his action for the amount of one-half of the expense incurred in making them, upon the ground that the benefit was equal, and that even-handed justice would compel each party to bear his share of the burden. (Campbell v. Mesier, 4 John. Ch., 334, 338, 339.) A decree for specific performance is nothing more or less than a means of compelling a party to do precisely what he ought to have done without being coerced by a court. Such a decree might well go further, and provide, that in case of delay by the defendant beyond some reasonable time, to be fixed by the court, after notice of the decree, the plaintiff might proceed and erect the wall, one-half of the necessary expense of which should be paid by the defendant. And, now that the plaintiff has, after due notice, borne the defendant's share of the burden, and done exactly what would necessarily by a *Page 215 decree for specific performance have been adjudged, that the defendant ought to have done without suit, no good reason can be assigned why, when the exigency of the case has rendered the remedy by action for specific performance wholly inadequate to accomplish the ends of justice, the defendant should not be held responsible for his share of the burden when it is shown that in equity he ought to do so, upon the same principle that a party who ought in equity to contribute one-half of the necessary expense of repairing a wall is bound, after notice and refusal, to pay the adjoining owner who has repaired it one-half of the necessary expenses of the repairs; and, notwithstanding the facts which establish the equitable obligation to build may be widely different from such as would establish an equitable obligation to repair, yet the principle upon which contribution is enforced is the same in each case. Contribution was at one time enforced only in a court of equity, and it was said by Baron PARKE (6 M. W., 168), that Lord ELDON regretted, not without reason, that courts of law had ever assumed jurisdiction of the subject; they have, nevertheless, done so, and as Justice BRONSON said in Norton v.Coons (3 Denio, 130, 132), "borrowed their jurisdiction on this subject from courts of equity, and along with it, taken the maxim that equality is equity." And Story, in his work upon contract (2d vol., § 885), referring to contribution by co-sureties or co-guarantors, says, it was formerly questioned whether, at law, contribution could be enforced without some positive agreement to that effect; but it is now well established that it may be enforced both in law and equity. The right to maintain such an action at law has not, in this State, been questioned in modern times, and especially where the remedy can be as conveniently administered in an action at law as in equity, since both are administered by the same judge. The judgment should be affirmed.