Reinhardt v. Holmes
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 611,143 Mo.App. 212 |
| Parties | JOHN J. REINHARDT et al., Respondents, v. WALTON H. HOLMES and WM. E. SWENTZEL, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. R. Morrison, Special Judge.
AFFIRMED.
Judgment affirmed.
John A Eaton and E. H. McVey for appellant, Wm. E. Swentzel.
(1) The party wall agreement provided that the ownership in the party wall acquired by Fredricka D. Evans and Henry F. Evans grantors of Swentzel, runs with the land, and thereby it became a part of the land covered by the description of lot 115 in block 8, McGee's addition. These rights inured to the future owner or owners of the above named lot. See Exhibit 1, abstract 32-34; 30 Cyc. 794; Huston v deZeng, 78 Mo.App. 531; Mickel v. York, 51 N.E. 848; Bagley v. Rose, 110 Mo.App. 344; 7 Cyc. 1044. (2) Swentzel leased to Alfred Holtman lot 115 and the building to be erected thereon, the lease expressly stipulating with reference to the right in the owner of the lot to build additional stories upon the party wall. The wall, in so far as it stood on lot 115, and in so far as it was a part of the property of Swentzel, passed to the tenant, Holtman, as a part of the lease. The lease of Holtman to the plaintiffs, Reinhardt Brothers, contains provisions similar to the lease from Swentzel to Holtman, and the contract relations in respect to the premises, so far as the party wall is concerned, passed to Reinhardt Brothers in the same way as the title that they obtained by their lease passed to Holtman. 24 Cyc. 975-979; Jones on Landlord and Tenant, sec. 445; 6 Words and Phrases, 5511; Sherman v. Williams, 113 Mass. 481; Lanpher v. Glenn, 37 Minn. 4, 33 N.W. 10; Humeston v. Wheeler, 175 Ill. 514, 51 N.E. 893; McMillan v. Sullivan, 43 Ala. 536; 7 Cyc. 1044; Grogan v. Foundry Co., 87 Mo. 327. (3) The relations of the parties must be determined by the contracts, consisting of the party wall agreement, the lease of Swentzel to Holtman, and of Holtman to the plaintiffs; and, in this respect, the relations are entirely different from those existing between Reinhardt Brothers and Walton H. Holmes, the other defendant. And upon all questions of negligence, the rights of the plaintiffs and Swentzel must be determined with reference to these contract relations, and therefore cannot rest on any duty that Swentzel may have owed to the plaintiffs as strangers. 24 Cyc. 925, 986; Geer v. Zinc Co., 126 Mo.App. 173; Ward v. Fagin, 101 Mo. 669; Jones on Landlord and Tenant, secs. 102, 445. (4) The contract relations between plaintiffs, through Holtman, with Swentzel, must govern in respect to any negligence which may have occasioned the falling of the party wall. The lease between Swentzel and Holtman provided that Holtman, the lessee, should "take good care of the building and premises." The lease from Holtman to Reinhardt Brothers, the plaintiffs, contains the same language. The words "good care" have to do with the subjects of diligence or negligence. The plaintiffs thereby expressly contracted to exercise "good care" in respect to the building and premises, the subject of the lease, and having so contracted, they cannot charge a failure to exercise such care upon the defendant, Swentzel. Conklin v. School District, 22 Kas. 525; Wright v. Tileston, 61 N.W. 824. (5) In view of the contract requiring the exercising of "good care" on the part of the plaintiffs, it is wholly immaterial as to whether the lease to plaintiffs conveyed any interest in the party wall or the property therein. When it was injured, it became a menace, was subject to the exercise of care in respect to the injury it might inflict, and the plaintiffs had contracted to exercise such care. Andrus v. Bradley, 117 Mo.App. 325; Taylor on Landlord and Tenant, secs. 343-628; Bennett v. S. & M. Co., 46 So. 211. (6) It being a conceded fact in the record that plaintiffs exercised no care in respect to the menace occasioned by the injured party wall, it is thereby an undisputed fact in the case that the plaintiffs have violated their agreement in respect to the exercise of care upon their part, and, having thereby violated such contract, they cannot charge the plaintiff, Swentzel, for whose benefit the agreement was made, with any failure upon his part to exercise care, the effect being that the cause of the accident must be attributed to the failure on the part of the plaintiffs to exercise "good care," which was, by virtue of the contracts, obligatory upon them. Grogan v. Foundry Co., 87 Mo. 321; Wood on Landlord and Tenant, secs. 538-541. (7) The rule governing the obligation or duty resting upon an owner of property with respect to dangers which may injure others, cannot be applicable in this case as between the plaintiffs and Swentzel, for the reason that their relations are established under the provisions of the leases and the agreements therein contained, and, therefore, the case, as based upon the alleged negligence of Swentzel, is entirely different from the case as submitted to the jury upon all of the instructions as based upon the duty resting upon an owner of property with respect to strangers, and the whole theory of the case as submitted by the trial court is, therefore, mistaken and erroneous. Ward v. Fagin, 101 Mo. 669; Graff v. Brewing Co., 30 Mo.App. 623; Roberts v. Cottey, 100 Mo.App. 503; Doupe v. Genin, 45 N.Y. 119; McGinley v. Trust Co., 168 Mo. 264; Herdt v. Koenig, 137 Mo.App. 589; Grant v. Tomlinson, 138 Mo.App. 222, 119 S.W. 1079; Marchek v. Klute, 133 Mo.App. 280; Glenn v. Hill, 210 Mo. 296; Jones on Landlord and Tenant, sec. 613. (8) The defendant Swentzel's demurrer to the evidence should have been sustained, because: (a) There is no proof anywhere in the evidence of any negligent omission or negligent act on the part of the defendant Swentzel. (b) His duty in respect to caring for the premises was obligatory upon the plaintiffs under the contract of lease made by them with Holtman. Ward v. Fagin, 101 Mo. 669; Marchek v. Klute, 133 Mo.App. 280; Crawshaw v. Sumner, 56 Mo. 517; Lexington Lodge v. Beall, 49 So. 833. (c) With plaintiffs' knowledge, the authorities and officers of the city, pursuant to ordinances of the city, had undertaken to afford protection and had decided upon the course to be pursued, and under employment from Mr. Holmes, Swentzel's co-defendant, the wall had been braced, and the premises leased had been occupied for that purpose with the knowledge and consent of plaintiffs. This being true, upon the return of Swentzel to the city, he should not have taken any other act or done anything other than what had been done. Kiley v. Kansas City, 69 Mo. 102; Grogan v. Foundry Co., 87 Mo. 321; Huston v. deZeng, 78 Mo.App. 531; Clark and Skyles Law of Agency, secs. 33, 920; Ryman v. Hamilton, 111 Mass. 245; Cunningham v. Washburn, 119 Mass. 224; Choteau v. Godden, 39 Mo. 229; Sewell v. Holland, 61 Ga. 608. (d) In the exercise of care, if defendant Swentzel was in duty bound to take any steps regarding the menace or danger occasioned by the party wall, he did fully perform such duty in abiding by the acts of the officers of the city, and negligence cannot be imputed or charged from his failure to violate such acts or take a different course from that prescribed and directed by the city. Kansas City v. Huling, 87 Mo. 203.
Daniel B. Holmes for appellant Walton H. Holmes.
Jamison, Elliott & Ostergard for respondents.
Plaintiffs, tenants of defendant Swentzel, sued their landlord and defendant Holmes for damages to a stock of groceries caused by the fall of a party wall owned by defendants who are adjoining property-owners. A trial to a jury resulted in a verdict and judgment against both defendants in the sum of five thousand dollars. Defendants appealed.
Swentzel owned a two-story brick business house in Kansas City and Holmes owned a five-story brick business house on the lot adjoining on the south. A party wall dividing the buildings was built on the line so that one-half of the wall was on the land of each owner. This wall was built under oral agreement between Holmes and Mrs. Evans who then owned the lot afterward conveyed to Swentzel, but in 1889, Holmes and Mrs. Evans, together with their respective consorts, entered into a written contract which referred not only to the wall we have mentioned, but also to the party wall on the south side of the Holmes building. Mrs. Evans also owned the lot adjoining the Holmes building on the south. The contract, which was acknowledged and recorded, recited "that it was understood and agreed (in the oral contract) that such walls should be party walls and that said Evans should pay to said Holmes part of the cost thereof and thereupon become one-half owner of each of such walls and entitled to use them or either of them as party walls in any building now upon said land or hereafter to be erected thereon; that the amount so to be paid by said Evans to said Holmes has been ascertained and agreed upon to be thirty-two hundred and seventy-five dollars on account of each wall and said Evans has accordingly paid to said Holmes sixty-five hundred and fifty dollars." The contract then provided ...
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