Howze v. Whitehead

Calhoon, J., delivered the opinion of the court. We are unable to see in the record any valid reason why Whitehead is not liable at law for contribution to the expense [582] of tbe erection by Mrs. Howze óf a party wall. Whitehead joined in the party wall, having previously declined contribution on the sole ground that he did not then desire to rebuild and did not know when he might so desire, making no intimation of any right in him toi join in the wall. This wall had been one-hundred and twenty feet long. The Moore property adjoined one side of it for forty feet. This condition of things had been in existence for a great number of years. This forty feet of property was destroyed by fire and Mrs. Howze reconstructed that forty feet which joined her property and Whitehead’s, being the Moore lot. Subsequently Whitehead used that party wall for his own purpose when he concluded to rebuild on his forty feet, and, having done so, he was liable to contribution toward the cost of that wall. After divers pleas there was, at the trial, a plea to the effect that there had been a written agreement between Mrs. Howze, through her agent, one Acee, and Whitehead, that if he permitted the erection of that wall on the spot where it had stood for so many years he should not be called on for contribution. In reference to this it is only necessary to say that there is no proof in this record which is at all sufficient in law that such agreement was eter entered into by Mrs. Howze, or by her authorization. In point of fact, it is shown that Acee, now dead, who is alleged to have been the agent of Mrs. Howze, was not in the state when the agreement was said to have been entered into. The agreement could only be established by showing authority from Mrs. Howze to Acee to make it. It surely could not be presumed that he had any power from her in reference to real estate transactions because he had been collecting rents for her from the tenants of houses under lease. Mrs. Howze specifically denies any such authority to Acee. Whatever hardship may be entailed by the result in this case, we are satisfied that under the law the judgment should be reversed and remanded: Reversed.