Huck v. Flentye

Mr. Justice Scholeield delivered the opinion of the Court: ■There is nothing in the agreement of the 15th of May, 1866, between Baierle and appellee, from which we are authorized to hold that all walls thereafter to be constructed between the lots should be governed by the terms of that agreement. It speaks of the wall as the south wall of a building then contemplated to be erected by Baierle on his lot. There is no undertaking that the Avail is to be perpetually maintained as a party wall, nor is there any stipulation in regard to rebuilding it in the event of its destruction. The consideration Avhich induced Baierle to incur the entire expense of its construction was, evidently, that he Avanted to build then, Avhile appellee did not. He was compelled to build a Avail, either on his own ground or on his and appellee’s jointly, to erect his building. Whether the wall was built then or not was of no consequence to appellee. He had no motive for a present expenditure, and was, therefore, in a condition to say to Baierle: “ I have no present need of this wall, and can not, therefore, pay anything to have it constructed. I may, or may not, want to use it in the future. Since, then, you must have it now, build it yourself; but if you will allow me the privilege of using it, when I choose to build, as a party wall, you may place it on the line, letting one-half rest on each lot.” But this could have no application where both parties were equally interested in the building at the same time. In such case, it is obviously equitable that each party should contribute the same amount. The reasonable conclusion, then, is, that the agreement had reference solely to the wall then to be constnicted. And Sherred v. Cisco, 4 Sanford, (S. C.) 480, Orman v. Day, 5 Florida, 393, List v. Hornbrook, 2 West Va. 342, cited by appellee’s counsel, are authorities for the position that the destruction of the wall by fire, in the absence of express stipulation to the contrary, destroyed the easement created by the agreement. It might be, indeed, that notwithstanding the agreement between Baierle and appellee had express reference only to the wall then to be constructed, still, that its terms could be taken as the measure of an implied agreement between appellant and appellee when the new wall was constructed. But to that end it would be essential that the parties had knowledge of those terms, and acted upon the assumption that they were obligatory. Of this there is not the slightest pretense in the proof. It is, on. the contrary, proved that the agreement between Baierle and appellee was not recorded, and that appellant was not informed of it until after he had built the wall. In our opinion, therefore, the agreement between Baierle and appellee is entirely outside of the case. In the cases before referred to as cited by the counsel for appellant, it is held that where one party erects a wall, one-half on his own ground and one-half on that of the adjoining owner, without any agreement between them, and the adjoining owner subsequently builds and uses this wall for one wall of his building, he can not be made to contribute any part of the cost of its erection. Considering the word “ agreement,” in its general sense, as including implied as well as express agreements, we think the doctrine contended for unobjectionable, and it then only remains to inquire whether appellant has proved an agreement, express or implied, in regard to the construction of the wall. It is said in 2 Greenleaf’s Evidence, § 107: “ Where the act done [by one party] is beneficial to the other party, whether he was himself legally bound to have done it or not, his subsequent express promise will be binding; and even his subsequent assent will be sufficient evidence from which the jury may find a previous request, and he will be bound accordingly.” And in the next section, 108, it is laid down that “ it is not necessary to the plaintiff to prove an express assent of the defendant, in order to enable the jury to find a previous request; they may infer it from his knowledge of the plaintiff’s act, and his silent acquiescence.” See, also, 1 Saunders, (Williams’ Notes, 1,) p. 264; 1 Selwyn’s Nisi Prius, (2d Am. Ed.) 42; De Wolf v. Chicago, 26 Ill. 443; Chitty on Cont’s, (11 Am. Ed.) 80— note (s1). It appears, from the evidence, that appellant and appellee were equally ready and anxious to rebuild. The wall was as much a necessity for appellee as it was for appellant. It was built at the same time appellee’s building was, and appellee has had the same benefit of it that appellant has had. That appellee was ignorant of its being built is not pretended. The0 same architect made the plans for both buildings. Appellee was often present as the work progressed, and, at his request, work on the wall was delayed, to give him time to put in his joists. • Appellee says, that he never agreed to build any part of the wall or pay for its being built, and much stress is laid on this. Suppose that he did not. Appellant never agreed to build his part for him and release him from liability. Fie knew the wall had to be built to enable him to complete his building, and that it had to be paid for. He did not forbid its construction or give notice that he would not be liable, and he had agreed that they would build together. The wall was expressly built for the use of both buildings, and, as we understand the cases cited by appellant’s counsel, herein it differs from those. Appellant did not here first erect his building, constructing one-half of this wall on appellee’s property without any agreement in regard thereto, and appellee afterwards erected his building, but both buildings were erected, substantially, at the same time. We are, for the reasons given, of opinion that the court below erred in disallowing appellant’s claim for contribution on account of the building of the wall. The judgment is reversed and the cause remanded. Judgment reversed.