Howze v. Whitehead

Decision Date18 May 1908
Citation93 Miss. 578,46 So. 401
CourtMississippi Supreme Court
PartiesELLEN S. HOWZE v. THOMAS J. WHITEHEAD, JR

October 1908

FROM the circuit court of Montgomery county, HON. J. T. DUNN Judge.

Mrs Howze, appellant, was plaintiff in the court below Whitehead, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court.

Appellant's declaration alleged that she was the owner of a brick storehouse in the town of Winona, erected in 1868 by one Devlin and which was one hundred and twenty feet in length. This storehouse was just south of and adjoining another brick storehouse built by one Moore, eighty feet in length. In the construction of the Devlin house, the south wall of the Moore house was used as the north wall of the Devlin building as far as it extended, eighty feet, and for the other forty feet Devlin erected a new wall on the line of the south wall of the Moore building. Afterwards the Moore house was lengthened and this additional forty feet of new wall was used in the construction of the addition to the Moore building. Before 1902, Whitehead became the owner of the Moore storehouse building, and appellant, Mrs. Howze, the owner of the Devlin storehouse building. In 1902 fire destroyed the Moore building, a large part of the south wall falling. Appellant rebuilt this wall, appellee declining to pay a pro rata of the cost of same; but afterwards appellee used the rebuilt wall in rebuilding his storehouse without paying or offering to pay his pro rata. Mrs. Howze brought suit for the recovery of one-half the costs of rebuilding the party wall. Whitehead defended on the ground that an agreement was entered into between him and appellant, acting through one Acee, her agent, by which appellant agreed to build the wall and allow appellee the use of same as a party wall without costs. Acee was dead at the time of the institution of the suit and Mrs Howze denied authorizing him to enter into any such agreement, and any knowledge of his having done so.

Judgment reversed and remanded.

E. D. Stone and McClurg, Gardner & Whittington, for appellant.

These houses, built by Moore and Devlin, had been separated by the same wall too long for either owner to gainsay the fact of its being a party wall, with all its incidents, and as a party wall can be repaired, Mrs. Howze had the right to repair this wall where it stood and Whitehead could not have prevented her from doing so, had he so desired. See statute on "Party Walls," chapter 99, Code 1892. Neither could Mrs. Howze force him to contribute to repair the wall if he did not desire to use it again. Under this state of affairs Mrs. Howze was forced to repair the wall at her own expense. Whitehead told her agent, Blackwell, that "he didn't need the wall then, and it would be some time before he ever would rebuild.' Then this party wall, as to the price of repairs, was in even a better position for Mrs. Howze than would have been the original erection of a party wall, as provided by Code 1892, § 3139. By that section a party erecting a wall on the line dividing his lot from another, the adjoining owner desiring to use the wall, can do so by paying, but shall not use the wall before he pays, etc. The question of party walls is settled by long usage and Mrs. Howze repaired the party wall, with the knowledge of defendant, and after he had refused to contribute. About three and one-half years afterwards defendant joined to and used the party wall, without paying half of the repair bill. Now under the law on party walls, Code 1892, ch. 99, he would have been liable for his share of the cost of the building a new wall on the dividing line when he began to use it. In all common sense and justice why is he not liable to contribute a share of the repair bill

There can be no question in the law as to his...

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13 cases
  • Saucier v. Life & Casualty Ins. Co. of Tennessee
    • United States
    • Mississippi Supreme Court
    • November 11, 1940
    ... ... defendant, after the failure of plaintiff to show the ... authority of the agent to make such an agreement ... Howze ... v. Whitehead, 93 Miss. 578, 46 So. 461; J. B. Colt Co. v ... Black, 144 Miss. 515, 110 So. 442; Am. Bankers' Ins ... Co. v. Lee, 161 Miss ... ...
  • Frazie v. Orleans Dredging Co
    • United States
    • Mississippi Supreme Court
    • May 2, 1938
  • Texas Co. v. Mills
    • United States
    • Mississippi Supreme Court
    • October 15, 1934
    ... ... Auditor Greene was without authority to direct or control the ... appellee in the performance of his duties ... Howze ... v. Whitehead, 93 Miss. 578, 46 So. 401; Planters' ... Lbr. Co. v. Sibley, 130 Miss. 26, 93 So. 440; ... Savings Bank v. Grocery Co., 123 ... ...
  • Orleans Dredging Co. v. Frazie
    • United States
    • Mississippi Supreme Court
    • March 22, 1937
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