Morrison Dep't Store Co. v. Lewis.

• Decision Date: 22 April 1924
• Citation: 96 W.Va. 277
• Parties: Morrison Department Store Company v. Lewis.
• Court: West Virginia Supreme Court

96 W.Va. 277

Morrison Department Store Company

v.Lewis.

Supreme Court of Appeals of West Virginia.

Submitted February 19, 1924.

Decided April 22, 1924.

1. Party Walls Agreement Held Not Abrogated by Destruction

of Party Wall by Fire.

The respective owners of two adjoining city lots enter into a party wall agreement, which agreement hinds their heirs, executors and assigns, and expressly states that it runs with the land, but makes no provision for reconstruction in event of total or partial destruction of the wall; and the owners of one of said lots erects a building on their lot, constructing a party wall in conformity with the contract, and afterward convey their lot and building to a corporation, binding It to carry out the provisions of said agreement. The buildings on both lots are afterwards destroyed by fire, which partially destroys the party wall. Thereafter;he said corporation constructs a new building on its lot, using a substantial part, remaining intact, of the old party wall; and during the progress of the work, L. who had subsequent to the fire acquired the adjoining lot by deed binding him to carry out the provisions of the party wall agreement, assists in directing the reconstruction of the party wall and uses the same in the reconstruction of a large building on lis lot. Under these circumstances said party wall agreement is not abrogated or destroyed by the partial destruction of the original party wall, and both parties are bound by the terms thereof. (p 286).

2. Arbitration and Award Notice Revoking Arbitration Clause

in Contract Must be of Same Dignity as Original Contract.

Where contract under seal contains an arbitration clause by which the parties agree to submit to arbitration certain matters in the event the parties cannot agree, and if either party desires to revoke said arbitration clause, the notice of revocation must be clearly expressed and plain in its intent and of the same dignity as the contract authorizing the submission. (p. 289).

3. Same Notice of Revocation of Arbitration Clause, in Con-

tract Under Seal, Must Also be Under Seal.

Where the contract requiring the submission to an arbitration is by deed under seal, the notice of the revocation of the arbitration clause in said contract, to be effective, must also be under seal. (p. 289).

4. Same Instruction That Award Provided for in Contract

Should be Basis of Verdict Held Not Erroneous.

Where it appears that a certain clause in a written contract providing for the building of a party wall authorizes certain questions to be submitted to arbitrators, and the proof shows that arbitrators were appointed in accordance with the provisions of the contract, and that they met after due notice and were sworn and heard the evidence on the questions involved, and rendered their award thereon; it is not error for) the court, in an action on the contract to recover defendant's proportionate part of the cost of re-building the wall, to instruct the jury that this award shall be the basis of their verdict. (p. 289).

Error to Circuit Court, Cabell County.

Action by the Morrison Department Store Company against Walter H. Lewis. Judgment for defendant, and plaintiff brings error.

Reversed, verdict reinstated, and judgment rendered.

L. L. Wilson and Geo. I. Neal, and Poffenbarger, Blue & Dayton, for plaintiff in error.

Paul W. Scott and George S. Wallace, for defendant in error.

McGinnis, Judge:

This is an action of assumpsit brought in the Circuit Court of Cabell County.

The declaration contains the common counts in assumpsit, and a special second count on a contract entered into between 0. J. Morrison and others and C. W. Campbell and others, bearing date Jnne 1, 1924, which contract is as follows:

"THIS INDENTURE, made this the first (1st) day of June in the year nineteen hundred and fourteen (1914), by and between 0. J. Morrison and C. A. Morrison, his wife, J. S. Darst and Blanche Darst, his wife, C. W. Starcher and Edna A. Starcher, his wife, J. M. Miller and Jennie Daniel Miller, his wife, and F. F. Starcher, and Clara Starcher, his wife, parties of the first part, and C. W. Campbell and Jennie E. Campbell, his wife, Douglas W. Brown and Mary G. Brown, his wife, and Cary N. Davis and Roberta L. Davis, his wife, parties of the second part:

"WHEREAS, The said 0. J. Morrison, J. S. Darst, C. W. Starcher, J. M. Miller and F. F. Starcher are the owners of that certain piece and parcel of land situate on the southerly side of Fourth Avenue in the City of Huntington, Cabell County, West Virginia, fronting forty-five (45) feet on said Fourth Avenue and running back between parallel lines a distance of two hundred (200) feet to an alley known as Court Street, said piece or parcel of land consisting of Lot Number Eight (8) and the westerly one-half of Lot Number Nine (9), in Block Number Ninety-five (95), as shown and designated upon the official map of the said City of Huntington, made by Lewis Leete, Civil Engineer, and of record in the Clerk's Office of the County Court of said Cabell County; and

"WHEREAS, The said C. W. Campbell, Douglas W. Brown and Cary N. Davis are the owners of Lot Number Seven (7), in said Block 'Number Ninety-five (95), as shown upon the official map of the said City of Huntington, which said lot adjoins, on the westerly side, the said Lot Number Eight (8), in Block Number Ninetyfive (95), owned by the male parties of the first part as aforesaid; and

"WHEREAS, There is situate upon the said Lot Number Seven (7), in said Block Number Ninety-five (95), owned by the male parties of the second part as aforesaid, a two story brick office building, the same being approximately sixty-one (6]) feet in depth from the front of said Lot Number Seven (7), and approximately thirty (30) feet in heighth, the easterly wall of which said building, and being the wall adjacent to said Lot Number Eight (8), in Block Number Ninety-five (95), is approximately nine (9) inches in thickness; and

"WHEREAS, the said 0. J. MORRISON, J. S. Darst, C. W. Starcher, J. M. Miller and F. F. Starcher contemplate and have actually begun the erection and construction of a four-story brick building, two hundred (200) feet in depth, upon the lots and parcels of land owned by them as aforesaid; and

"WHEREAS, It is contemplated that the westerly wall of the building so to be constructed by the male parties of the first part shall be eighteen (18) inches in thickness, up to and including the first floor, and thirteen (13) inches in thickness for the 'residue of the building, approximately two hundred (200) feet in depth, and approximately seventy-five (75) feet in heighth, and shall be placed one-half on the lands of each of the parties hereto, save and except that the easterly wall of the building now owned by the said C. W. Campbell, Douglas W. Brown and Cary N. Davis (which said easterly wall is approximately nine (9) inches in thickness, as aforesaid) shall become and be part of such party wall.

"NOW, THEREFORE, THIS AGREEMENT: That the said parties of the first part, for themselves, their executors, administrators, heirs and assigns, and the said parties of the second part, for themselves, their executors, administrators, heirs and assigns, agree each with the others as follows:

'' FIRST: The wall so to be formed and constructed shall be and remain a party wall.

"SECOND: It is understood that the wall so to be constructed by the male parties of the first part, and to become a party wall as hereinbefore covenanted, shall be constructed in a substantial and workmanlike manner and so as to conform in all respects to the laws and ordinances regulating the construction of buildings.

"THIRD: Whenever the said C. W. Campbell, Douglas W. Brown and Cary N. Davis, their heirs or assigns, shall use the whole or any part of said party wall, they shall pay to the male parties of the first part, their heirs or assigns, one-half of the actual cost of so much of said party wall as they may use. But it is, however, provided that in estimating the value of so much of said wall as may be used by the said Campbell, Brown and Davis, their heirs or assigns, there shall not be taken into consideration the portion of the said party wall of which the easterly wall of the present building of the said Campbell, Brown and Davis shall form a part and parcel. It being understood that the said Campbell, Brown and Davis shall own one-half of said portion of said party wall without liability or obligation to make any payment therefor.

"FOURTH: Either of the parties hereto may, at any time, extend the said party wall horizontally or vertically to such heighth or depth as may be consistent with safety, may make such extension or addition of greater thickness than eighteen (18) inches, but not of less thickness. Either party may add to the thickness of the said party wall, or of any extension thereof or addition thereto then already built. It is, however, provided that not more than nine (9) inches of the thickness of any extension or addition to said wall built by either party shall be placed upon the land of the other party without the consent of the latter, and no part of any addition to the thickness of said wall, and or of any extension or addition thereto, then already built, made by either of the parties hereto, or by those claiming under them respectively, shall be placed upon the lands of the other party without the consent of the latter; provided, however, that in the event either party hereto may desire to increase the thickness of said party wall for the purposes of increasing the heighth thereof and it is found necessary that a portion of the footings for such increased thickness shall be placed beneath the surface of the lands of the other party, then the same may be so placed at the sole and entire cost and charge of the party desiring such footing, but such footing shall be placed at least twelve (12) feet beneath the surface of the ground, measuring from the top of...