Hammond v. Schiff
| Citation | 6 S.E. 753,100 N.C. 161 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 26 May 1888 |
| Parties | Hammond et al. v. Schiff et al. |
Hammond et al.
v.
Schiff et al.
Supreme Court of North Carolina.
May 26, 1888.
1. Party-Walls—Right of Lateral Support—Unsealed Agreement.
A written agreement for the joint use and repair of a wall by the owner and an adjoining proprietor, though not under seal, when made for a valuable consideration, and acted upon by both parties, has in equity a force and efficacy little short of conveying an easement in the wall, and the owner of the soil on which it stands, or his successors, cannot remove the soil adjacent to it, without being accountable to the adjoining proprietor for the consequences.
2. Negligence—Dangerous Premises—Instructions.
Where the evidence is full, positive, and uncontradicted that the defendants negligently and recklessly dug and excavated the earth so near a wall that it gave way
[6 S.E. 754]and tumbled in, whereby an action accrued to the plaintiffs for damages to a stock of goods kept in a building supported by such wall, the court may instruct the jury that, if they believe the evidence, it is their duty to find the issue for the plaintiffs.
3. Same—Damages—Pleading.
"Where, by the fall of a building, caused by the wrongful act of the defendants, the plaintiffs' goods are damaged, and such damage is increased by the use of water to stop a fire which broke out in the wreck, plaintiffs need not allege specially the damage by the water in order to recover therefor.
4 Same—Insurance.
In an action for damage to a stock of goods caused by wrongful excavations by defendants, whereby the building containing the goods fell, and fire broke out, defendants cannot make proof, in mitigation of damages, that the plaintiff had insurance on such goods, for the reason that one cannot take the benefit of a policy of insurance without paying the premium.
5. Same—Employment of Skilled Workmen.
The employment of skilled workmen to make an excavation, which results in throwing down an adjoining building, does not excuse the one making such excavation when the proof shows that the advice of such skilled workmen in the matter was wholly disregarded.
6. Same—Evidence.
Evidence that the lessor of the plaintiffs having threatened to have defendants enjoined from making an excavation near a wall of the lessor, did not procure such injunction for the reason that he could not find a judge, is admissible in an action to recover damages for injury caused to plaintiffs' goods by the results of such excavation.
7. Trial—Objections to Evidence—Agent.
An objection to the introduction in evidence of statements made by an agent of the defendant when sent to make propositions for the settlement of a dispute between the parties, is untenable, especially when the obnoxious words are not specifically pointed out.
8. Appeal—Review—Expert Witness.
The decision of the trial court that a witness is an expert, when such decision is based upon evidence introduced as to the experience of the witness, is not reviewable upon appeal.
Appeal from superior court, Mecklenburgh county; James C. MacRae, Judge.
Action by A. H. Hammond and W. H. Justice, partners as Hammond & Justice, against Philip Schiff and Jonas Schiff, partners as Schiff & Bros. Judgment for plaintiffs, and defendants appeal.
Busbee & Busbee and Jones & Tillett, for appellants.
Schenck, Price & Fleming and Batchelor & Devereux, for appellees.
Smith, C. J. The plaintiffs, as tenants under a lease from John H. Mc-Aden, the owner, were in the occupation of a house and lot fronting on Trade street, in Charlotte, pursuing a mercantile business, in the year 1885; while the defendants, similarly engaged, were, early in that year, in possession of an adjoining lot, with like frontage, under a contract of purchase made on July 1, 1875, with Henry W. Fries, the building on which was consumed by fire in the month of February, 1885. While the lots belonged, respectively, to said McAden and Fries, to-wit, on May 1, 1875, they entered into a contract, a copy of which is contained in the complaint, and in form as follows: "Whereas, John H. McAden, of Charlotte, N. C, is owner of a certain lot or parcel of land in said city, fronting on Trade street, and extending back about one hundred and forty feet, and joining the property of W. J. Yates, and the lot owned by H. W. Fries, at Salem, N. C, on which last-mentioned lot is situated the brick store-house occupied by W. J. Black; the south wall of said store-house being built along the dividing line between the said McAden and Fries: now, this agreement, made this, the 1st day of May, 1875, between the said John II. McAden and the said H. W. Fries, witnesseth, that the said Fries, for and in consideration of the stipulations and agreement of the said McAden hereinafter contained, does hereby covenant that the said McAden, his heirs and assigns, may use said south wall of said brick store-house as the north wall of the store-house to be erected by the said McAden on his aforesaid
[6 S.E. 755]lot, and may make such excavations in said wall as may be necessary for the support of the floor of said house: provided, however, that no injury is done to the building of the said Fries: and provided, further, that said wall is not to be torn down without the consent of the parties hereto, their heirs and assigns. And, in the event of its destruction by any means, nothing herein
contained is to be construed as conveying to the said McAden any right or title to the land on which said wall is located. And the said McAden, for himself and his heirs above, covenants and agrees to and with the said Pries that he will add to and improve said wall at his own expense, and for the mutual benefit of himself and the said Pries, so as to make it serve as the north wall of his aforesaid store-house, which is to have a basement ten feet deep, and
[6 S.E. 756]to extend back from Trade street one hundred feet, the third story to extend only fifty feet back, and the front of said wall to be about——feet high; all which improvements are to be made in a workman-like manner, and of good material. And the said McAden does further agree that the said Fries, his heirs and assigns, may use said wall in such manner as may be proper and necessary to support or strengthen the building he or they may erect in the place of the one now on said lot; and that he will, at his own expense, repair any injury that may be done to said wall by reason of said addition made thereto. H. W. Fries." The contract of sale of July following, after a recital of the terms of sale, not necessary to be set out, contains this concluding clause:
"Now, if the said Schiff & Bros, [the defendants being its constituent members] will pay to H. W. Fries the interest due on the above notes on the 1st day of January of each year, and the principal of the same at maturity, the said H. W. Fries will make to the said Schiff & Bros, a deed to the above-described property, free of any incumbrances thereon to this date, but subject to an agreement made between H. W. Fries and J. H. McAden in regard to the wall next McAden's lot.
"In witness whereof we have hereunto put our hands and seals. "J. Schiff. [Seal.] "Ph. Schiff. [Seal.] "H. W. Fries. [Seal.] "Test: Patrick Martin "W. F. Shaw."
After the destruction of the house on the defendant's lot, they determined, about the middle of May, to erect a new brick building on the same site, and to excavate for a cellar or basement room underneath; and, having entered into arrangements for doing so, began to dig away the earth for that purpose, and had proceeded until, from the loosening and removal of the soil from a too close proximity to the wall, it was unable to support its weight, and, giving way, the wall fell, causing the damage to the plaintiff's goods, and his interest in the leased house, for which the present action is brought. Upon the five issues submitted to the jury, they responded, under the charge of the court, as follows: "(1) Was the wall between the Schiff building and the McAden building a party-wall? Answer. Yes. (2) Did the defendants, by themselves or through their agents, unlawfully dig and excavate the earth so near to the wall between the Schiff and McAden buildings that it gave way and tumbled in? A. Yes. (3) Did they negligently so dig and excavate as that the wall gave way and tumbled in? A. Yes. (4) Did the plaintiffs, by their want of due care, contribute to the injury? A. No. (5) Whatdamage, if any, are the plaintiffs entitled to recover? A. $9,000."
The plaintiffs examined three witnesses, whose testimony we give as far as necessary to a proper understanding of the rulings assigned as error in the defendant's appeal. J. II. McAden testified that, in pursuance of his contract with Fries, he excavated within five feet of the main wall, and erected a dead wall, on which the sleepers of the witness' structure rested, extending over to Frits' wall; that his building excavation extended 100 feet back, 40 feet short of his line, and, when the house reached the second story, the joists were let into places opened in the Fries wall; that the parapet wall on Fries' building, 9 inches high, was found to be defective, and witness took it down and built a new one 14 inches high; that the Fries building had a rear extension beyond that of witness, in which were windows, from which the rear of witness' lot could be seen, and the wall was in common use by both proprietors; that, in 1877, Philip Schiff said that some repairs were needed in the foundation, and, as both were interested in it, witness ought to pay half the expense, and this witness agreed to, and did so. To this evidence objection was made if offered to show an estoppel or an easement; and, the plaintiff admitting such to be
[6 S.E. 757]the object, it was received by the court. The witness further testified to meeting Schiff soon after the fire, in February, and the latter said he wanted witness to pay for some repairs in the wall, —places where...
To continue reading
Request your trial