Zeininger v. Schnitzler

The opinion of the court was delivered by Horton, C. J.: It is contended that the trial court committed error in admitting evidence for the purpose of proving an estoppel. The petition alleged that the foundation and brick wall were on the division line between lots 16 and 18, on Market street, in Wichita. The evidence offered tended to show that the plaintiff below employed the city engineer to designate and mark out the correct division line between lots 16 and 18. It seems to have been established that the foundation and wall were constructed upon the line so designated, and that the defendant below not only used the south half of the foundation and brick wall as a part of the north wall of his own building, which he erected, but also that he verbally agreed with plaintiff below to pay one-half of the expenses thereof. There is a conflict in the evidence as to whether the city engineer designated the correct division line, it being claimed upon the part of defendant below that the foundation and wall were actually laid upon his own lot, not the division line, nor upon the lot of plaintiff. We think, upon the record, defendant below has no complaint to make. There is evidence supporting the general verdict of the jury, and the special findings are to be harmonized, if possible, to sustain the verdict. They can be so harmonized, and therefore the judgment properly followed the verdict. The admissions and agreements of plaintiff below tended to prove that, at the time of the erection of the foundation and wall, the ■parties supposed they were being erected upon the division line between the lots. After the survey was made, the defendant below was present at the construction of the foundation and wall and made no objection. Both parties treated [66] the foundation and wall as upon the division line, and the defendant below afterward used this wall in the construction of his own building, and appropriated to himself the benefits growing out of the construction of the same. At most, the evidence objected to merely tended to corroborate the evidence of the plaintiff below, and to establish that a party wall was built; and whether it was upon the exact division line or not, is not, for the purpose of this case, material. We do not think there was such a variance between the allegations of the petition and the proof offered as to justify any reversal. The other points submitted have been considered, and, in, our opinion, they do not prevent the recovery. The judgment of the district court will be affirmed. All the Justices concurring.