De Palma v. Weinman
| Decision Date | 01 July 1909 |
| Citation | 103 P. 782,15 N.M. 68,1909 -NMSC- 009 |
| Parties | DE PALMA et al. v. WEINMAN et al. |
| Court | New Mexico Supreme Court |
Rehearing Denied Aug. 25, 1909.
Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.
Action by Richard De Palma and another against J. A. Weinman and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.
In an action for damages to a stock of merchandise, plaintiff was properly permitted to refresh his memory by reading to the jury from the bill of particulars filed in the case by order of court as to the items of goods destroyed and their values the bill consisting of a long list of articles and their prices, compiled by witness and his clerk from invoices and inventories, and it being impossible for any one to have remembered the items therein set out.
The appellants Weinman and Barnett were the owners of lots 2 and 1, respectively, of block 16, of the town of Albuquerque, at all times during which the events lending up to the bringing of this action transpired, and in December, 1901, on each lot stood a building with separate walls between, but very close together, and perhaps touching part or all the way where they ran parallel to each other. On December 15, 1901, Weinman leased his building on lot 2 to appellees, who subsequently up to June 30, 1902, used and occupied it as a retail drug store; the lease running for two years and the rent reserved being $90 per month, payable monthly in advance. Some time in May or June, 1902, and while the Weinman building was being so occupied by appellees, Barnett took down and removed his building on lot 1, including the wall adjacent to the Weinman building, and with a view of erecting a new building on said lot. The east wall of the Weinman building, which was an old adobe wall and had stood for many years, was crooked and bulged and out of plumb, and had been for some time, as shown by the evidence. After the removal of the Barnett building the appellants, Weinman and Barnett, entered into a party wall agreement, whereby Barnett was to be permitted to build a party wall on the line between the two lots; said wall to stand one half its full thickness on each lot and to be 40 inches wide at the bottom or footing course of the foundation and 18 inches wide at the floor joists, first and second story walls to be 13 inches thick, and the fire wall 9 inches thick. It was also specified in said agreement that Barnett should be permitted to take down any part of the east wall of the Weinman building which might be necessary to locate the new wall centrally over the line. The evidence discloses that the appellee Ruppe, who was in charge of the drug store in question, was apprised of this agreement before any steps were taken to carry it into effect and made no objection thereto.
Barnett excavated a cellar on his lot preparatory to erecting his new building, leaving a bank on the west side, next to the Weinman building, variously estimated by the witnesses from 2 to 5 feet wide, and on June 30, 1902, had a contractor engaged in the building of the foundation of the new building, including the party wall, as per agreement with Weinman. The contractor, on that day or just prior thereto had excavated for a space of about 5 feet long on the line between the two lots at the northeast corner of the Weinman building, and, according to the testimony of some of the witnesses, extending under the east wall of that building from 10 to 14 inches and of a depth of 7 or 8 feet. At about 5:30 on the afternoon of said day, the east wall, or a portion of it, from a point 55 feet south of the front line and up to the northeast corner, where the excavation just referred to was situated, fell, causing the damages of which appellees complain. It seems pretty well established by the evidence that the first crack of the falling wall appeared 55 feet back from the sidewalk, and that the wall in falling moved slightly to the north or front of the building, and that the stone foundation under the excavation heretofore referred to fell in such excavation, while the foundation of the remaining 50 feet of the fallen wall remained in place. There is considerable conflict in the evidence as to just how the wall fell, and what portion of it fell inside and what portion outside of the Weinman building. There is considerable testimony to the effect that the east wall of the Weinman building was weak and in an unsafe condition, and to support the appellants' theory that it fell from its inherent weakness and from the removal of the Barnett wall and the excavation on lot 1 depriving it of lateral support.
Immediately after the falling of the wall the appellees removed to another location what remained of their stock and fixtures, and apparently occupied the same premises up to the time their lease of the Weinman lot and building expired by its terms. Upon demand by Weinman, after the wall fell, for the rent for July, 1902, appellees refused to pay it, and Weinman thereupon took possession and sold his lot to Barnett, who went into possession and occupied it. The appellees brought suit for damages against both Weinman and Barnett, claiming damages in the sum of $10,000--for stock and fixtures injured and destroyed, $3,000; for the value of the unexpired term of the lease, $1,000; for being compelled to remove to a less favorable location, $500; and for loss of profits to their business, $5,500; and from a judgment in appellees' favor in the sum of $4,000, based upon the verdict of the jury to which the cause was tried in the trial court, appellants bring the cause to this court by appeal.
W. B. Childers, for appellant Weinman. Neill B. Field, for appellant Barnett. O. N. Marron and A. B. McMillen, for appellees.
MANN, J. (after stating the facts as above).
This is the second time this cause has been up for hearing in this court. At the January, 1905, term it came up on error to the district court of Bernalillo county, and was reversed and remanded to that court for further proceedings in accordance with the opinion then rendered. The opinion was written by Mr. Justice Pope and concurred in by the other members of the court. It will be found reported in 13 N.M. 226, 82 P. 360.
The first question confronting us is, What did that decision establish as the law of the case? it being well settled that a previous ruling by an appellate court upon a point distinctly made in a case before it becomes the law of that case, and is binding upon the courts and the litigants. Crary v. Field, 10 N.M. 257, 61 P. 118; Flournoy v. Bullock, 11 N.M. 87, 66 P. 547, 55 L. R. A. 745; Dye v. Crary, 13 N.M. 439, 85 P. 1038, 9 L. R. A. (N. S.) 1136. A careful analysis of the former decision discloses that it settled two points, viz.: That the question of the proximate cause of the fall of the wall involved in this case was a question for the jury on the evidence adduced; and (2) that the party wall agreement was admissible in evidence.
At the second trial of the case the first proposition was submitted to the jury, and the party wall agreement was introduced and admitted in evidence, and the jury by their verdict must have found that the wall in question fell by reason of the excavation under the northeast corner of the building occupied by appellees, which excavation, it seems to be conceded, was made by the contractor of the appellant Barnett under the terms of the party wall agreement between Barnett and Weinman. The question then arises whether the appellant Weinman, who was the owner of the lot on which the injured building stood, and the lessor of the appellees, became a joint trespasser with Barnett by reason of the license granted Barnett by the party wall agreement. No question as to the breach of the implied covenant for quiet enjoyment in the lease between Weinman and the appellees is involved, for this is an action sounding wholly in tort; there being no contractual relations between the appellees and Barnett, and consequently a want of mutuality that precludes any question of breach of contract. In other words, Weinman cannot be held for breach of contract and Barnett for trespass in a joint action and by a joint judgment, though a separate action against each might have been maintained.
The relation of landlord and tenant between the appellees and appellant Weinman, then, is important only because of the party wall agreement between appellants Weinman and Barnett, the former being the owner of the fee of the leased premises, and his liability so far as this case is concerned must rest upon that agreement. If his license to Barnett to excavate under the wall of the leased building amounted in itself to a trespass, then he is liable; otherwise, it was error to permit a joint judgment against him and Barnett for the alleged injuries to the goods of appellees in the leased premises. The party wall agreement shows on its face that Weinman and Barnett contemplated possible injury to the wall involved in the controversy, for by the sixth paragraph of the agreement they provided for the payment by Barnett of such damages as might be done to the building by carrying out the agreement from Barnett's fault, such damages to be paid to Weinman; and, while the agreement does not in terms provide that it shall be carried out during the tenancy of the appellees, yet there is nothing therein to the contrary, and it was in fact begun to be performed when the wall fell.
A very similar state of facts to those in the case at bar is set up by the defendants in their answer in Collins v. Lewis, a Minnesota case reported in 53 Minn. 78, 54 N.W. 1056, 19 L. R. A. 822, and the following quotation from the opinion in that case, written by Mr. Justice Collins, seems applicable here: ...
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