Carpenter v. Reliance Realty Co.

• Decision Date: 15 December 1903
• Parties: CARPENTER, Respondent, v. RELIANCE REALTY COMPANY, et al., Appellants
• Court: Missouri Court of Appeals

77 S.W. 1004

103 Mo.App. 480

CARPENTER, Respondent, v. RELIANCE REALTY COMPANY, et al., Appellants

Court of Appeals of Missouri, St. Louis

December 15, 1903

Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Collins & Chappell for appellant.

(1) That portion of the building ordinance of the city of St Louis providing that whenever an excavation to the bottom of a footing for a business building is carried to a greater depth than fifteen feet below the curb level, it shall be the duty of the person making or causing said excavation to be made to preserve any contiguous legal wall or walls from injury and sustain, protect and underpin the same is invalid for the reason that same is an attempt to exercise a legislative function not delegated to-municipal corporations. Charles v. Rankin, 22 Mo. 560; Busby v Holthaus, 46 Mo. 161; Victor Mining Co. v. Mining Co., 50 Mo.App. 529; Partridge v. Scott, 3 Mees & Wels. (Exch. Rep.) 220; Eads v. Gains, 58 Mo.App. 586; Norder v. City, 97 Mo. 537; Senn v. Railroad, 108 Mo. 142; Moran v. Palace Car Co., 134 Mo. 641; Byington v. Railroad, 147 Mo. 673; Badgley v. City, 149 Mo. 122; Anderson v. Railroad, 161 Mo. 411. (2) We submit that the respondent can not rely upon any rights he may have, if, any, under and by virtue of the contract between the Hill-O'Meara Construction Company and the Reliance Realty Company for the following reasons: First, the respondent's petition does not count upon any rights under said contract but solely upon the building ordinance of the city of St. Louis. No issue was presented in the pleadings or determined by the court below touching respondent's rights under said contract. It is too late for respondent to raise the question of his rights under the said contract for the first time after the case has reached the appellate court. Hollman v. Lange, 143 Mo. 100; Walker v. Owens, 79 Mo. 563; Evans v. Kunze, 128 Mo. 670; Tomlinson v. Ellison, 104 Mo. 105; Hogan v. Brady, 155 Mo. 659; Huling v. Bondera F. S. Co., 87 Mo.App. 349; Trigg v. Taylor, 27 Mo. 245; Hart v. Leete, 104 Mo. 315; Minton v. Stute, 125 Mo. 181; Whetstone v. Shaw, 70 Mo. 575; Newham v. Kenton, 79 Mo. 382; Goodman v. Crowley, 161 Mo. 657. Second, the plaintiff in this action could not have maintained this action by relying upon the contract between the Hill-O'Meara Construction Company and the Reliance Realty Company in any event, for the reason that the said contract, in so far as it pertains to plaintiff's alleged rights, is one of indemnity only. 16 Am. and Eng. Ency. of Law (2d Ed.), 176; Ewing v. O'Rielly, 34 Mo. 113; K. C. ex rel. Blumb v. O'Connell, 99 Mo. 357; Ham v. Hill, 29 Mo. 275; Union Natl. Bank v. Rich, 106 Mich. 319; Taylor v. Duner, 80 Tex. 652; French v. Vix, 143 N.Y. 90; Turk v. Ridge, 41 N.Y. 201; Black's Law Dictionary; 16 Am. and Eng. Ency. of Law (2 Ed.), 168. Third, a cause of action had not arisen or accrued on the contract above mentioned in favor of any one at the time plaintiff commenced this action, for the reason that neither the loss from which the realty company was to be saved harmless nor the liability from which it was to be protected had come into existence. Stewart v. Thomas, 45 Mo. 42; Railroad v. News Co., 151 Mo. 373; French v. Vix, 143 N.Y. 90; Bank v. Grof, 101 Mich. 27; Koken Iron Works v. Livers, 147 Mo. 580; Markel v. Telegraph Co., 19 Mo.App. 80; Porter v. Woods, 138 Mo. 539; Devers v. Howard, 144 Mo. 671. Fourth, the right of a third person to maintain an action upon a promise made to another for his benefit relates exclusively to matters of contract. It was first limited to promises contained in simple contracts. Bank v. Benoist, 10 Mo. 519; Robbins v. Ayres, 10 Mo. 538; Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 237. It was subsequently extended so as to apply to contracts under seal. Rogers v. Goswell, 51 Mo. 466; Fitzgerald v. Barker, 70 Mo. 685; State v. Railroad, 125 Mo. 596. Fifth, Plaintiff can not maintain his action on the city ordinance in this case on the theory that there is any analogy between such ordinance and those ordinances on which laborers and materialmen are permitted to maintain suits for labor and material. City to use v. Von Phul, 133 Mo. 561; Devers v. Howard, 144 Mo. 671; St. Louis v. Lumber Co., 114 Mo. 74; St. Louis v. Keane, 27 Mo.App. 642; Howsman v. Waterworks, 119 Mo. 304; Luthy v. Woods, 6 Mo.App. 67; City of Kansas v. O'Connell, 99 Mo. 357; New Haven v. Railroad, 62 Conn. 253; School Board v. Wood, 77 Mo. 197.

T. K. Skinker for respondent.

(1) The Hill-O'Meara Construction Company, having expressly agreed to protect the adjoining buildings, the plaintiff, as owner of these buildings, was entitled to insist upon the performance of that agreement, and as that company when the suit was brought, was in the attitude of refusing to perform, the plaintiff was entitled to the injunction. Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Crone v. Stinde, 156 Mo. 262; Fitzgerald v. Barker, 70 Mo. 685; Rogers v. Gosnell, 58 Mo. 589; Porter v. Woods, 138 Mo. 539, 554; St. Louis v. Von Phul, 133 Mo. 561, 574. (2) The Reliance Company, according to many authorities, was itself bound to protect respondent's walls. Casselberry v. Ames, 13 Mo.App. 575; Charless v. Rankin, 20 Mo. 566, 571; Gale & Whatley on Easements, page 218; Washburn on Easements (4 Ed.), side page 436; Lasala v. Holbrook, 4 Paige 169; McGuire v. Grant, 25 N. J. L. 356; Thurston v. Hancock, 12 Mass. 226, 231; Gilmore v. Driscoll, 122 Mass. 199; Whitcomb v. Railroad, 25 Vt. 49, 63. (3) It is immaterial that this was not set up in the petition as ground of recovery. The judgment was for the right party. Rev. Stat., sec. 865; Cass County v. Bank, 157 Mo. 133. (4) The plaintiff was entitled to the injunction under section 73, of ordinance No. 18,964, of the city of St. Louis. Appellants, before the suit, claimed under that section of the ordinance, and are, therefore, bound by it. Bensieck v. Cook, 110 Mo. 173; Hudson v. Wabash Railroad, 101 Mo. 13; Hilz v. Railway, 101 Mo. 36; Harrington v. Sedalia, 98 Mo. 583; Brown v. Bowen, 90 Mo. 184; Gale v. Ins. Co., 33 Mo.App. 664. (5) It is not the rule in this State that a municipal corporation may not create civil rights enforcible between private parties. Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 246; St. Louis City Charter, Art. 3, sec. 26, par. 12; 2 R. S. 1899, p. 2488.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

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 fifty 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, three stories high for a distance of thirty feet from the front and thence two stories high the further distance of twenty feet. The foundation walls under the three-story portion of that building were of stone and extended eight feet below the level of the curb on Sixth street. The foundation under the two-story part extended two and one-half 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, four stories high for a depth of eighty feet and one story high the further depth of thirty-four feet. The west wall of that building, contiguous to the Realty Company's lot, was of brick and the foundation for a depth of eleven feet, was of brick and twenty-eight inches thick and for the further depth of one foot was three 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 ten-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 eighteen 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 fifteen 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. 18964, 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...