Jacob Weinman v. Richard De Palma

• Decision Date: 24 February 1914
• Docket Number: No. 173,173
• Citation: 232 U.S. 571,34 S.Ct. 370,58 L.Ed. 733
• Parties: JACOB WEINMAN and Joseph Barnett, and Ivan Grunsfeld and M. W. Flournoy, Their Sureties, Plffs. in Err., v. RICHARD DE PALMA and Bernard Ruppe
• Court: U.S. Supreme Court

232 U.S. 571

34 S.Ct. 370

58 L.Ed. 733

JACOB WEINMAN and Joseph Barnett, and Ivan Grunsfeld and M. W. Flournoy, Their Sureties, Plffs. in Err.,

v RICHARD DE PALMA and Bernard Ruppe.

No. 173.

Argued January 20, 1914.

Decided February 24, 1914.

Mr. Neill B. Field for plaintiffs in error.

Messrs. Francis E. Wood, Owen N. Marron, and A. B. McMillen for defendants in error.

Mr. Justice Pitney delivered the opinion of the court:

In November, 1901, Weinman, one of the plaintiffs in error, being the owner of a building and lot of land in Albuquerque, New Mexico, leased them to defendants in error for a term of two years, to commence in December, following. They entered into possession, and occupied and used the building in their business of prescription and retail druggists. Plaintiff in error Barnett was the owner of an adjoining lot and building. Some time in May or June, 1902, while the Weinman building was occupied by defendants in error, Barnett took down and removed his building, including the wall adjacent to the Weinman building. The east wall of the latter was an old adobe wall that stood close to, but perhaps a few inches away from, the easterly boundary line of the lot. In May, 1902, Weinman and Barnett entered into an agreement in writing, whereby Barnett was to construct a party wall to stand one half of its full thickness upon each lot; the footing course to be 40 inches wide; the foundation wall to be 18 inches thick from the top of the footing to its full height, where it was to receive the first floor joints; the wall above that to be of less thickness. It was stipulated that Barnett should be permitted to take down any part of the east wall of the Weinman building as might be necessary in order to locate the new wall centrally over the property line, and if, through his fault, damage should be done to the Weinman building, he was to make it good. In the execution of this agreement, it was necessary to undermine the east wall of the Weinman building. Barnett made an agreement with one Grande, a general contractor, by which the latter was to do the excavation and stone work according to plans and specifications, and as directed by La Driere, a superintendent who was in Barnett's employ. Grande proceeded under La Driere's direction to do the work. It would seem that the purpose was to excavate for the party wall in sections, so that support for the Weinman building should not at any time be entirely lacking. On or about June 30th, the contractor having excavated for a space about 5 feet in length along the line between the two lots at the northeast corner of the Weinman building, and extending under the east wall of that building for approximately 12 inches, the wall fell, damaging the stock-in-trade and fixtures of defendants in error, and rendering the building untenantable. They removed what remained of their stock and fixtures to another and less desirable location, and carried on their business there, up to the time their lease of the Weinman lot and building would have expired by its terms. After the wall fell, Weinman made demand for the rent payable by the lease for the month of July, 1902, and, defendants in error having refused to pay it, Weinman took possession.

Defendants in error brought suit against both Weinman and Barnett in the district court of one of the counties of the then territory of New Mexico. The action was in the nature of an action of trespass, and damages were claimed for the destruction of parts and injury to other parts of the stock-in-trade and fixtures, for the being compelled to remove to a less favorable location at considerable expense, and for the loss of profits in the business. (There was also a claim of damages for eviction and the loss of the leasehold, but this was afterwards abandoned.)

Answers were filed, and there were subsequent amendments to the pleadings, but it is not necessary to recite them.

The action has been at least three times tried by jury, and three times reviewed by the supreme court of New Mexico. Upon the first trial a verdict was directed in favor of defendants, and the supreme court reversed the judgment and remanded the cause for a new trial. 13 N. M. 226, 82 Pac. 360. The second trial resulted in a verdict and judgment for plaintiffs, which was reversed because compensation for loss of profits and for goods injured was included without sufficient evidence to sustain this part of the recovery. 15 N. M. 68, 24 L.R.A.(N.S.) 423, 103 Pac. 782. At the last trial, the proof was to some extent supplemented, and there was a judgment in favor of plaintiffs for $7,738, based upon the verdict of a jury for that amount. On appeal, the...