Carpenter v. Reliance Realty Co.

Decision Date15 December 1903
Citation77 S.W. 1004,103 Mo. App. 480
PartiesCARPENTER v. RELIANCE REALTY CO. et al.
CourtMissouri Court of Appeals

8. A contract between defendants (a lot owner and a construction company employed to erect a building on the lot) provided that the construction company should protect the adjacent walls. Held, that a contention by plaintiff, in an action to compel the defendants to adopt measures at their expense to protect his adjacent buildings from damage by excavation, that he was entitled to enforce the contractual provision against the construction company, is untenable, since he was no party to the contract, and did not sue on it, or refer to it in his petition.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by James M. Carpenter against the Reliance Realty Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

Collins & Chappel, for appellants. T. K. & C. R. Skinner, for respondent.

Opinion.

GOODE, J.

The Reliance Realty Company and the Hill-O'Meara Construction Company are corporations. The former owns a lot on the northeast corner of Olive and Sixth streets, in the city of St. Louis, which fronts 50 feet on the north line of Olive street, and extends north 114 feet along the east line of Sixth. The plaintiff, James M. Carpenter, owns two lots adjoining the realty company's lot. One of them fronts on the east side of Sixth street, and is contiguous to the realty company's lot on the north. The other is immediately east of the lot of the realty company. So the two surround the realty company's lot on the north and east sides. In 1898 Carpenter had a building on his Sixth street lot, 3 stories high for a distance of 30 feet from the front, and thence 2 stories high the further distance of 20 feet. The foundation walls under the 3-story portion of that building were of stone, and extended 8 feet below the level of the curb on Sixth street. The foundation under the 2-story part extended 2½ feet below said level, and below the surface of the ground. On plaintiff's east lot, to wit, the one fronting on the north side of Olive street, he had a building of brick and iron, 4 stories high for a depth of 80 feet, and 1 story high the further depth of 34 feet. The west wall of that building, contiguous to the realty company's lot, was of brick, and the foundation, for a depth of 11 feet, was of brick, and 28 inches thick, and for the further depth of 1 foot was 3 feet thick, and laid in hydraulic cement mortar. Both the buildings are alleged to have been old, but their age is not stated in the evidence. During said year the Reliance Realty Company began to improve its lot, the purpose being to erect thereon a 10-story office building, of the steel construction type; and such an edifice was in fact erected, and is now known as the "Carleton Building." In making the improvements, it was necessary to excavate the realty company's lot to the depth of 18 feet or more, in order to put in a basement and a foundation strong enough to uphold the lofty superstructure intended to be erected. As this excavation would penetrate the earth below and immediately adjacent to the foundations of the plaintiff's two buildings, measures to insure the safety of the foundations were required. With that end in view, the Hill-O'Meara Construction Company, to whom the contract for the erection of the Carleton Building had been let by the Reliance Realty Company, delivered a written notice to the plaintiff on November 8, 1898, telling him it was the intention of the construction company to make an excavation on the realty company's lot to a depth of 15 feet below the curb level, and notifying the plaintiff to take such steps as he saw fit to sustain, protect, and underpin his contiguous walls so as to preserve them from injury. The notice called plaintiff's attention to section 73 of Ordinance No. 18,964 of the municipal assembly of the city of St. Louis, approved April 7, 1897. That ordinance is now section 106 of the municipal code of 1901, and reads as follows: "The legal depth for excavations to the bottoms of footing shall be nine feet for dwellings and fifteen feet for business buildings — to be measured from the curb level on the party line. Whenever an excavation shall be carried to a greater depth than the legal depth above given, it shall be the duty of the person making or causing such excavation to be made to preserve any contiguous legal wall or walls from injury and sustain, protect and underpin the same at his own cost and expense, so that the said wall or walls shall be and remain practically as safe as before such excavation was commenced. He shall give timely written notice to adjoining property owners of his intention to do so, and adjoining property owners shall permit the occupancy of their ground and buildings so that their walls may be underpinned and sustained. If such excavation shall not be carried to a depth greater than the legal depth above given, the owner or owners of such adjoining or contiguous wall or walls shall preserve their walls from injury and so sustain, protect and underpin the same at their own cost and expense that said wall or walls shall be and remain as safe as before such excavation was commenced, and said owner or owners of adjoining or contiguous wall or walls shall be permitted to enter upon the premises where such excavation is being made for that purpose, when necessary." On November 9th Carpenter replied to the notice of the Hill-O'Meara Construction Company, saying that the notice stated the excavation would be made to a depth of 15 feet along both of his lines, but that he had seen the plans and specifications for the new building, and they called for an excavation of 18 feet; that, inasmuch as the notice did not explicitly declare the excavation would be limited to 15 feet, he asked for information as to the full depth intended to be excavated. He also called the attention of the construction company to the aforesaid municipal ordinance, and said, if the construction company would inform him that it did not intend to dig deeper than 15 feet, he would proceed without further delay to protect his walls; otherwise he would expect the construction company to protect them. No reply was made to this letter, and on November 17th Carpenter filed a petition in the circuit court of the city of St. Louis against the Reliance Realty Company and its officers and the Hill-O'Meara Construction Company and its officers, in which he averred that the defendants were about to excavate to a depth of 18 feet, and asked that they be restrained from proceeding with the work until they had, at their own cost and expense, protected and underpinned his walls so as to preserve them from injury. The petition stated that plaintiff's buildings were occupied by tenants; that the proposed excavation endangered the buildings; that the defendants, in disregard of their duty, had refused to protect his walls at their own cost and expense, and, if they were allowed to proceed without providing adequate safeguards, there was great danger to the lives and limbs of plaintiff's tenants, and of irreparable damage to his buildings. A bond was given, and a temporary restraining order granted. The order enjoined the defendants, their agents and servants, from making any further excavation on the Reliance Realty Company's lot without, at their own expense, sustaining, protecting, and underpinning plaintiff's walls contiguous to the realty company's lot on the east and north, so as to preserve said walls from injury, and...

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