Lynds v. Clark

• Decision Date: 29 May 1883
• Citation: 14 Mo.App. 74
• Parties: BENJ. LYNDS ET AL., Appellants, v. WILLIAM G. CLARK, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 74

BENJ. LYNDS ET AL., Appellants,

v.WILLIAM G. CLARK, Respondent.

St. Louis Court of Appeals, Missouri.

May 29, 1883.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

P. R. FLITCRAFT, for the appellants.

ALEX. MARTIN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The petition in this case alleges that the plaintiffs were copartners as builders; that on September 13, 1880, a building owned by the defendant, on his lot in St. Louis, was nearly destroyed by fire; that before October 18, 1880, plaintiffs had contracted with one Thompson to erect for him a building on a lot immediately adjoining that of defendant, and to furnish the material for the same; that plaintiffs were erecting this building and working upon it with their employees on October 18, 1880; that the north wall of defendant's building on the adjoining lot, owned and occupied by defendant, was left standing in a dangerous condition from the date of the fire by the carelessness and negligence of defendant; and that on October 18th, without any fault of plaintiff, this wall fell upon the building, which they were erecting, and crushed in its walls, and knocked down and destroyed the bricks of which they were composed; that the joists and timbers used in the construction of said building were thereby broken and damaged, and lumber, window frames, sash, door frames, and doors, used and to be used by plaintiffs in the construction of the building, and also other building material belonging to plaintiffs, were thereby broken and destroyed to the damage of plaintiffs, $500. That, by the falling of this wall a great quantity of brick, mortar, and rubbish was thrown upon the building being erected by plaintiffs, causing them a damage of $200 for expenses in removing the same; that by their contract with Thompson, plaintiffs were bound to have the building, which they were erecting for him, completed by a day fixed, or, in case of failure, to forfeit to him a large sum of money for each day that said building remained unfinished after the day named in the contract for its completion; that, by the falling of the wall upon the building, plaintiffs were delayed in the prosecution of the work, compelled to employ an additional force of laborers, greatly to their loss, and were unable to complete the building within the time limited in the contract; by reason of all which, they were further damaged $500. Judgment is asked for the sum of $1,200. The answer was a general denial. At the close of plaintiffs' case, the court, at the instance of defendants, gave an instruction, that, on the evidence, the plaintiffs were not entitled to recover. Plaintiffs took a non-suit with leave, which the court afterwards refused to set aside.

The plaintiffs introduced evidence tending to show that defendant owned a five-story building in St. Louis, with a high gable, and that one Thompson owned a building adjoining, on the north. The wall between the buildings was a party wall, up to the height of Thompson's building, which was two stories lower than that of defendant. These two buildings were partly destroyed by fire on September 13, 1880. The north wall of defendant's building was left standing in a dangerous condition. Thompson, immediately after the fire, made a contract with plaintiffs to restore his building complete, as before the fire, for $6,000; the building to be completed by a day named, and plaintiffs to forfeit $10 a day for all delay in completing the building after that time. Plaintiffs at once set to work on the Thompson building. They repeatedly called defendant's attention to the dangerous character of the wall. The wall was highly dangerous and liable to topple at any time. Plaintiffs' workmen, on some occasions, left their work on account of this. Defendant repeatedly promised to remove the wall, and admitted that it was dangerous, but nothing was done about it. Plaintiff Benjamin Lynds says, that he thought that when the wall fell it would fall south, away from Thompson's lot. On October 18th, the gable and upper part of defendant's wall fell into the Thompson lot, breaking off at a point twenty feet above the line at which it ceased to be a party wall. At the time of the fall plaintiffs had made considerable progress in rebuilding the Thompson house. Various materials, belonging to plaintiffs, and lying on the Thompson lot to be put...