Gorham v. Gross

• Decision Date: 12 April 1875
• Citation: 117 Mass. 442
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles L. Gorham & another v. Raphael Gross & another

117 Mass. 442

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

Supreme Court of Massachusetts

April 12, 1875

Argued October 2, 1874

Worcester. Contract, with counts in tort. The count in contract was as follows: "And the plaintiffs say that the plaintiffs and the defendants mutually executed and entered into an indenture, a copy of which is hereto annexed and were the respective owners of two adjoining parcels of land on the west side of Main Street, Worcester, as in said indenture set forth; that the defendants erected the party wall therein mentioned, but erected the same negligently, improperly and without due care, and by means thereof said wall fell upon the plaintiff's said close, and injured and destroyed a building thereon standing, and injured and destroyed a stock of goods, merchandise and other personal property in said building, the same being the property of the plaintiffs, and otherwise injured the plaintiffs."

The indenture was dated July 9, 1873, and the material parts thereof 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. [Then followed a description of the materials and dimensions of the proposed wall, and the manner in which it was to be built.]

"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...