Gorham v. Gross

• Decision Date: 31 August 1878
• Citation: 125 Mass. 232
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles L. Gorham & another v. Raphael Gross & another

125 Mass. 232

Charles L. Gorham & another v. Raphael Gross & another

Supreme Court of Massachusetts

August 31, 1878

Argued October 2, 1877 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester. Tort for injuries by the falling of a party wall. After the decision reported 117 Mass. 442, the case was tried in this court, before Morton, J., who allowed a bill of exceptions in substance as follows:

On July 9, 1873, the plaintiffs and the defendants executed an indenture, the material parts of which were as follows: "Whereas the said Charles L. and Chester Gorham, and the said Gross and Strauss, are owners of certain adjoining parcels of land situated on the westerly side of Main Street in the said Worcester, between land of the People's Savings Bank on the north and land of Mrs. Mary H. E. Davis on the south, and whereas the said parties to these presents propose to erect buildings upon their respective premises, they do hereby covenant and agree, each with the other, for themselves, their heirs or assigns, that the wall between their said premises shall be what is known as a party wall, to wit: One half of the thickness of the wall shall be built upon land owned by each of the said parties to these presents, and, for the proper erection and maintenance of such party wall, the said parties do hereby give and grant each to the other, and to their heirs or assigns, all such rights and privileges in the premises and estates of each other as may be necessary for the fulfilment of this agreement in each and every particular thereof, subject to the restrictions and provisions hereinafter specified.

"It is hereby agreed that either or each party shall have the right at any time to build said party wall, or any part thereof, or to make additions thereto, by whomsoever such wall, or part, may have been previously built.

"And it is hereby agreed that the said party wall shall be built, constructed and maintained, in its several parts, and in any additions that may be made thereto, as follows:" to wit, of brick, with stone foundation, and in other respects as particularly described.

"The said party wall or any part thereof, which shall be built by one of the said parties to these presents, their heirs or assigns, shall be built to the satisfaction of the other party, their heirs or assigns, and the cost thereof shall be ascertained and agreed upon within a reasonable time after the building of such wall or part thereof, and either of the said parties, their heirs or assigns, desiring to use the said wall or a part thereof which has been built by the other party, their heirs or assigns, shall pay one half the costs of building the full thickness of the wall, for the whole of said wall in case they make use of the same, or a true proportional part of said cost, in case they use a part only of said wall.

"Each party to these presents hereby reserves the right to enter, use or improve said party wall, in such ways and for such purposes as party walls are usually constructed therefor, and it is hereby agreed that any points respecting the same, which are not herein specifically provided for, shall be decided by the custom in regard to party walls in the said city of Worcester."

On September 12, 1873, the defendants made a contract in writing with a firm of masons, by the terms of which the latter were "to furnish all materials and to perform or cause to be performed all labor in completing the granite and brick work, including setting of stone in brick work, and lathing and plastering," for a building, including the wall in question, to be erected for the defendants, "in strict conformity with the plans, specifications and detail drawings for the same furnished by, and under the superintendence and to the acceptance of, Frank W. Cherrington, architect;" the defendants were to pay them a gross sum, "seventy-five per cent. of the amount due at the close of each month for the labor and materials furnished during the month, and, upon the completion of the brick work, the full amount due therefor," and all extra work to be paid for as agreed upon by the defendants or their "agent, the architect."

The specifications set forth that "the aforesaid building is to be erected under the superintendence and to the acceptance of F. W. Cherrington, architect." Cherrington testified that the only superintendence of the building he exercised was to inspect the work, to see that the structure conformed to the specifications, and to give the contractors, on the completion of each month's work, a certificate that they were entitled to receive therefor the amount then due under the building contract, on the strength of which certificate the contractors drew their pay from the defendants.

It appeared that the wall in question was erected, one half its width on land of the plaintiffs and the other half on land of the defendants; that the plaintiffs' lot was occupied by a one-story wooden building used as a music shop and frequented by customers; and that at five o'clock in the morning of December 4, 1873, the wall fell, crushing this building and destroying its contents.

The plaintiffs offered evidence that the wall was complete up to the third story of the defendants' building, and that the floor of the fourth story had been laid; that the rear wall of the fourth story and the north wall which fell had been completed, except for a few feet from the front, which was left until the front, which was intended to be of a more ornamental character, should be built at a later time; that the south wall, about two thirds into which the trusses were built, was at its full height, and the rest nine feet high; that the side walls of the fourth story were ninety feet in length, twelve feet in height, and about fifty feet above the ground; that there were no stays or supports of any kind to the north wall, except two trusses which were for the support of the roof, and which had been put in by the carpenter with whom the defendants had contracted to do the wood work upon the building, which stretched across the building and were anchored into the north and south walls; that the wall which fell was blown over by the wind; that ordinary prudence required that it should have been secured by stays at intervals of about ten feet, and that, if so properly stayed, the accident would not have happened; that the attention of two or three persons was drawn a day or two beforehand to the dangerous condition of the wall, and one of them, an architect, called the attention of one of the contractors to the danger; and that the defendants passed the building daily and were in it frequently, and Cherrington, their architect, was daily about the building, and that they and he had means of knowing and preventing the danger.

The defendants contended, and offered evidence tending to show, that the wall was built when the weather was extremely cold, the thermometer being below zero, so that the mortar froze as soon as laid; that there came suddenly a day and night of very warm weather, which softened the mortar and destroyed its tenacity, so that it could not support the weight of the bricks, and the wall was thereby crushed; that the night was still; and that no braces or stays, or other reasonable precaution, would have prevented the accident, which could not have been foreseen or expected.

The plaintiffs contended that, if the defendants' theory as to the cause of the accident was correct, the defendants were guilty of negligence in building the wall in such extremely cold weather.

Both the defendants and the contractors who had charge of the work testified that the defendants in no way exerted any control over the contractors, or gave any directions as to the construction of the building. It appeared that the wood work upon the building was going on at the same time with the construction of the brick work; that the carpenters had laid the floors of the different stories, including that of the fourth story, and had inserted in the north wall two trusses, which were part of the structure intended to support the roof; and that the firm of masons had done under their contract everything which they were required thereby to do to that portion of the north wall extending from the part left to receive the front wall, and the architect had surveyed and estimated the work on the north wall, and given a certificate therefor on December 1. There was evidence that some work was done on the wall by the masons after December 1.

The defendants contended that, after the commencement of the party wall, five flues were built therein at the request of and for the accommodation of ...