Keith v. Ridge

• Decision Date: 15 November 1898
• Citation: 47 S.W. 904,146 Mo. 90
• Parties: Keith et al. v. Ridge, Appellant
• Court: Missouri Supreme Court

47 S.W. 904

146 Mo. 90

Keith et al. v. Ridge, Appellant

Supreme Court of Missouri, First Division

November 15, 1898 ^[*]

Appeal from Jackson Circuit Court. -- Hon. C. O. Tichenor, Special Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) A "party wall" means a solid wall, without windows or openings of any kind therein; and where there is a contract calling for a "party wall," and one of the parties thereto builds, leaving windows or openings in the wall, he is a trespasser ab initio on the land of the other. Harber v. Evans, 101 Mo. 668; St. John v Sweeney, 59 How. Pr. 175; Vansykel v. Tryon, 6 Phila. 401; Milne's Appeal, 81 Pa. St. 56; Vollmer's Appeal, 61 Pa. St. 125; Dauenhauer v. Devine, 51 Tex. 488; Franke v. White, 19 A. 196. (2) The owner of the land, in building a party wall, partly on his own land and partly on that of an adjoining owner, has no right against the objections of the adjoining owner, to leave openings for windows therein to be used until such time as the other shall build. Normile v. Gill, 34 N.E. 543; Sullivan v. Graffort, 35 Iowa 531; Graves v. Smith, 87 Ala. 450; Patridge v. Gehert, 15 N.Y. 601; Brooks v. Curtis, 50 N.Y. 639; Ingals v. Planendon, 75 Ill. 118; Gibson v. Holden, 115 Ill. 199; Block v. Isham, 28 Ind. 37; 3 Kent Com. 437. (3) There is no "party-wall" statute in this State. Plaintiffs' only right then to rest one half the wall on defendant's land arose out of the contract, but when they violated that contract by not erecting a legal and proper "party wall" they forfeited the consent given by the contract and became trespassers. Harber v. Evans, 101 Mo. 668; Vansyckel v. Tryon, 6 Phila. 401; Vollmer's Appeal, 61 Pa. St. 118; Milne's Appeal, 81 Pa. St. 54. (4) Plaintiffs, having neither a statutory right nor defendant's consent, it follows, under familiar principles of law, that the part of the wall built by them upon defendant's land became the property of defendant. Sherred v. Cisco, 4 Sandf. 480; Block v. Isham, 28 Ind. 37; Preiss v. Parker, 67 Ala. 503; Antomarchi's Ex. v. Russell, 63 Ala. 358; Bisquay v. Jeunelot, 10 Ala. 245; List v. Hornbrook, 2 W.Va. 343; Sherrod v. Cisco, 4 Sandf. 480; Orman, Admr., v. Day, 5 Fla. 390; McCord v. Herrick, 18 Ill.App. 424; Wilkins v. Jewett, 139 Mass. 29; Abrahams v. Krauttler, 24 Mo. 69; Rankin v. Charles, 19 Mo. 490.

Fyke, Yates & Fyke for respondents.

(1) Appellant was present nearly every day during the construction of the wall. He made no complaint or objection to methods of its construction; without complaint, he used it in the construction of his building. Upon plainest principles of right and justice he should pay for one half the value thereof when he used it. Keating v. Froham, 88 Mo. 524. (2) If appellant was not content with the manner in which the wall was being constructed, he should then have made his objection; and if respondents were violating the contract by erecting a wall not in compliance with it, appellant could have prevented its erection upon his land by pursuing the course taken in Harber v. Evans, 101 Mo. 661 -- but he could not stand silently by and see respondents expend thousands of dollars upon a foundation and wall upon his land, knowing that they expected him to pay for half its value when he used it, and afterwards claim that they departed in some slight particular from the strict terms of the contract. Respondents were not trespassers, because what they did was with appellant's full knowledge and without objection. All the cases cited by appellant are cases where injunctions were asked or where no agreement, express or implied, existed between the parties. (3) It was proper to unite a count upon quantum meruit with a count on the contract; and the contract was sufficient evidence of a promise to pay, under the count upon quantum meruit. Williams v. Railroad, 112 Mo. 463; Moose v. Gaus & Sons Mfg. Co., 113 Mo. 98. (4) There is no reason, and can be none, why the rule applied by this court in building contracts is not applicable to this case. That rule is this: Although the builder does not in every respect fulfill his contract, still if the owner uses, possesses and enjoys the building, then the builder is entitled to recover what his labor and material were worth, less whatever damages the owner may have sustained by reason of the builder's failure to comply with his contract. Yeats v. Ballentine, 56 Mo. 530; Davis v. Brown, 67 Mo. 313; Rude v. Mitchell, 97 Mo. 365.

OPINION

Brace, P. J.

The plaintiffs Keith and Perry are the owners of a lot in Kansas City fronting one hundred feet on Walnut street and running back one hundred and fifteen feet to an alley, and the defendant Ridge is the owner of a contiguous lot of the same frontage and depth.

On the seventh of July, 1886, the parties entered into a written contract which provided as follows:

"1. That whichever party shall first build adjoining said lines, shall erect a party wall thereon, half on each side thereof, of such depth as such party shall see fit, and of sufficient strength and thickness to sustain a building of not less than five stories in height, of good material and workmanship, and in conformity with the building laws for the time being in force, and shall keep the same in repair until used by the owner of the other parcel; after which the same shall be kept in repair at the joint expense of the owners of said adjoining parcels of land for the time being.

"2. That whenever the owner for the time being of the other parcel use said wall, he shall pay to the person at the time of such use owning the parcel first built upon, one half of the then value of such wall, including in the word 'wall' the stone and brick foundations and any other sub-structure, together with the coping.

"3. That either party, his or their heirs or assigns on either side, may build said wall higher or deeper, taking due care not to injure the other owner, and doing the work wholly from his or their side, unless the other side be vacant, and doing all that may be necessary, as by carrying up flues and the like to leave the other owner as near as may be in as good condition as before, and using good material and workmanship and conforming to existing building laws; and one half of the value of any such additions when used shall be paid for like the original structure."

Soon after the agreement was made the plaintiffs, Keith and Perry, commenced the erection of a building on their lot, six stories high on Walnut street and seven stories on the alley, the centre of the south wall of which was, in pursuance of the agreement, located on the dividing line between their lot and that of the defendant Ridge. The foundation of the wall was of stone, solid and continuous from Walnut street to the alley. The remainder was of brick laid continuously thereon, except that from about two feet above the stone foundation and about fifty feet from the front wall the plaintiffs recessed their south wall on their own lot for a distance of sixteen or seventeen feet to the top, thus leaving a space of that length of the wall unoccupied by their building, thereby forming a court therefor on their own premises, for the purposes of light and ventilation. Their building was completed sometime in the year 1888, and in the year 1890, the defendant erected a building on his lot of the same depth, four stories high on Walnut street and five stories high on the alley, using the wall thus constructed by the plaintiffs for the north wall of his building, making the same a continuous, solid, blank wall between the two buildings by filling up the space aforesaid left by the plaintiffs as aforesaid, which ever since has been used and enjoyed by both parties as a party wall for their buildings.

After the defendant had thus erected his building, the plaintiffs demanded payment of one half of the cost of the wall thus used by the defendant, and payment having been refused, this suit was instituted.

The petition is in two counts, the first upon the contract, the second upon a quantum meruit. The answer is a general denial, except as to the making of the contract, with allegations of specific violations thereof.

The case was tried by the court without a...