Di Palma v. Weinman
| Decision Date | 31 August 1905 |
| Parties | DI PALMA et al. v. WEINMAN et al. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
Upon the testimony disclosed by the record, the court erred in directing a verdict for the defendants.
Error to District Court, Bernalillo County; before Justice Benjamin S. Baker.
Action by Richard Di Palma and B. Ruppe against Jacob Weinman and Joseph Barnett. Judgment for defendants, and plaintiffs bring error . Reversed.
This is a suit for damages, instituted in the district court of Bernalillo county by Di Palma and Ruppe, the plaintiffs in error, against Weinman and Barnett, to recover damages in the sum of $10,000, arising out of the destruction of a certain store building occupied by the plaintiffs as a drug store. The complaint alleges that the defendant Weinman was on November 9, 1901, the owner in fee of the premises in question, and that on this date he leased said premises to the plaintiffs for a two-year term, beginning December 15 1901; that, at the time of the making of the lease and thereafter, up to June 30, 1902, there was upon said premises a substantial store building, possession of which was given plaintiffs by defendant Weinman on December 15, 1901, the first day of the lease, and was thereafter, up to June 30 1902, occupied or used by the plaintiffs in their business of prescription and retail druggists; that on June 30, 1902, or thereabout, the defendants, with full knowledge of the facts and "contriving to injure and destroy the property of the plaintiffs, unlawfully entered upon said premises, and with force and arms tore down and destroyed a large portion of the walls and roof of said store building, so that the same fell upon, injured, broke, and destroyed" personal property of the plaintiffs of the value of $3,000, and "so injured, wrecked, and destroyed said building as to make it wholly unfit for plaintiffs' business"; and since said June 30, 1902, "said defendants have continued to occupy said premises and have wholly destroyed and torn down the rest of said building." Items of damages, illustrated by a bill of particulars, are alleged aggregating $10,000, for which judgment is prayed. The defendants answered separately. The answer of defendant Barnett put in issue the alleged trespass by the defendants and the allegations of damages, and sets up that the falling of the wall of the building was by reason of the fact that said wall was old and of defective construction. He further alleges certain facts not material to this decision, which it is urged, estop plaintiffs from maintaining the present suit. The answer of Weinman likewise puts in issue the material allegations of the complaint, except as to the destruction of the building; and avers that the lease in question became terminated on or about July 1, 1902, by the failure and refusal of plaintiffs to pay the rent stipulated. The reply traverses the new matter alleged. The cause was tried to a jury, and at the conclusion of plaintiffs' case, upon motion of the defendants, the court instructed the jury to return a verdict for the defendants, which was done. Plaintiffs moved for a new trial upon the grounds, first, of certain alleged errors of the court in refusing to admit evidence presented by the plaintiffs; second, for refusing to admit evidence as to the articles destroyed and their value and, third, in instructing the jury to find for the defendants. The motion was overruled, judgment entered for the defendants, and plaintiffs bring the case here by writ of error.
Mr. Marron and McMillen & Raynolds, for plaintiffs in error.
W. B. Childers, for defendant in error Weinman.
Neill B. Field for defendant in error Barnett.
POPE, J. (after stating the facts).
The principal assignment of error is that based upon the action of the court in instructing the jury to find for the defendant. In determining this matter we do not find it necessary to enter into a discussion in detail of all the testimony given on the trial; but, bearing in mind the rule as to directing a verdict laid down by this court in Armstrong v. Aragon, 79 P. 291, and cases there cited, we think there was a case for the jury on the record here presented, and that the court erred in withdrawing the case from the jury. The testimony in brief shows that the plaintiffs were in the quiet possession of the premises under a lease from the defendant Weinman, when on June 30, 1902, the east wall of the building fell, the building thereon situated was made untenantable, and the stock and fixtures of the plaintiffs were damaged. It is further shown that, some weeks prior to the casualty, the defendant Barnett, who was the owner of lot 1, adjoining the leased premises on the east, had entered into an agreement with Weinman (to which plaintiffs were not parties) whereby it was agreed that Barnett, in the construction of a building on lot 1, might construct a party wall on the west side thereof, to be located half upon his lot and half upon lot 2 occupied by the plaintiffs. This party-wall contract was tendered in evidence by plaintiffs, but upon objection was held inadmissible by the court. This action of the court constitutes the basis for one of the assignments of error.
It was further shown by the evidence that, pursuant to the party-wall contract between himself and Weinman, Barnett, on June 5, 1902, entered into a contract with one Grande whereby the latter was to excavate for and complete the stonework required in the basement on lot 1, including said party wall, in accordance with the plans and specifications of a certain Le Driere, the architect. This contract is in evidence, as are also the plans and specifications. From the latter it appears that the excavation was to be 8 feet below the sidewalk grade and the footing course of the party wall was to be 40 inches wide, one-half of which, or 20 inches, was to be on lot 2. The destroyed building came within 2 1/2 inches of the east side of the lot, so that the contract was for an excavation of 17 1/2 inches under...
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