Gorham v. Gross

Gray, C. J. If the defendants had undertaken, for a sufficient consideration, to build a wall for the plaintiffs, an action of contract might doubtless have been maintained for negligent performance of that undertaking. Vin. Ab. Actions, P. 3. Elsee v. Gatward, 5 T. R. 143. Thorne v. Deas, 4 Johns. 84, 99. 1 Spence Eq. Jur. 243, 249. But upon advisement we are all of opinion that no undertaking in this respect is expressed in, or can be inferred from, the written agreement into which the parties have entered. By that agreement, each party grants to the other a license to build a party wall upon the boundary line between their estates, and all such rights and privileges in the estate of the former as may be necessary for the fulfilment of the agreement. It is agreed that the wall built by either party shall be built of a certain, width and materials, and to the satisfaction of the other party; that the cost shall be ascertained and agreed upon within a reasonable time after the building thereof; and that the other party, his heirs or assigns, may use the wall, upon paying half the cost. Neither party is under any obligation to build the wall at all, and the agreement contains no stipulation as to the degree of care to be exercised in building it. ■ It is possible that a contract might be implied that the wall, if actually built by one party, and afterwards used by the other in [445] the construction of a building on his estate, should be sufficient for such use; and that if, by reason of its insufficiency in that respect, the building so constructed by the latter should fall, an action upon such implied contract might be sustained. But the duty of the party, who avails himself of the right to build the wall, to exercise due care in building it, so as not to injure the buildings and property already upon his neighbor’s estate, is not regulated by the agreement, and does not rest in contract; it is governed by the common law, and redress for any injury suffered by a failure in the performance of this duty must be sought by action of tort. The plaintiffs’ count in contract does not allege that the wall was not built of the prescribed width or materials, or to the satisfaction of the plaintiffs, nor that the plaintiffs have used the wall; but merely charges negligence of the defendants in building the party wall mentioned in the agreement, and consequent injury to a building and property upon the plaintiffs’ land. The demurrer to this count must therefore be sustained and the Count adjudged bad.