Christensen v. Badger Improvement Co.

| Wis. | Oct 20, 1925

The following opinion was filed June 22, 1925:

Doerfler, J.

There was no party-wall in the instant case, which materially differentiates this case from the Mann Case. An agreement like that entered7 into in the Mann Case of date of June 26, 1922, was also entered into between the Badger Improvement Company, Sklute and Komiss, and the plaintiff. The questions of lateral support involved in this case have been considered by the court in the Mann Case, and decided, and, applying such decision to the instant case, it is adverse to the contentions of the Improvement Company. There is also ample evidence in the case to support the amount of the judgment in the instant case without taking into consideration the counterclaim of the Improvement Company referred to in the findings.

Referring first to the 'fifteenth finding of fact, we are of the opinion that this finding is substantially supported by the evidence. The evidence is not very persuasive to the effect that the Badger Improvement Company was frequently notified to remove the gutter, but no question can be raised but that one notice at least was given to that effect. The law does not require frequent notices, and, in fact, it is questionable whether any notice whatever is necessary. The Improvement Company knew of the proposed erection of the Arcade building. It knew, or is charged with knowledge, of the proposed height of the building, and if it did not know of such height it could readily have obtained knowledge on* the subject.

There is also ample evidence that the attempted removal of the gutter, in so far as it extended over onto the property of the Arcade, did not result in a complete removal, but left part of the same projecting over the line. It might have been more satisfactory if the contractor of the Arcade had permitted this small projection in such a way as to allow the outer edge of the gutter to be imbedded in the cement wall of the Arcade, thus providing what would have amounted substantially to a flashing on and into the wall. However, this was a matter for the contractor and the owners of the Arcade to decide, and they could have permitted it or refused it, as they saw fit.

With reference to the sixteenth finding of fact there was a clear conflict in the evidence. The trial court heard the evidence, saw the witnesses, came in close contact with the experts, had an opportunity to view the premises, and, in short, was in a position where he could better determine these facts than this court on the record. We therefore, under the rule prevailing on the subject, deem such finding binding upon the parties on this appeal.

The seventeenth finding stands as a verity and is not subject to attack. The same'may be said of the eighteenth and the nineteenth findings.

The theater known as the Bijou at all times herein mentioned was in the possession of one McKivett under a lease from the owner, the Improvement Company. This lease contained a provision which required the tenant to keep the premises in repair. Under this lease, any damage resulting to the property of the tenant by reason of any wrongful acts of the contractor of the Arcade belonged to the tenant and not to the owner of the building. The Improvement Company, however, claimed that it had assumed such liability; that notwithstanding that the bills had been contracted by the tenant, nevertheless the company either paid in part for the same or had assumed their payment. The evidence upon this subject upon the part of the Improvement Company is highly unsatisfactory and unpersuasive. The facts are very much like those involved in the case of Greenberg Realty Co. v. Cream City R. & P. Mfg. Co. 183 Wis. 259, 197 N. W. 815. The time when the alleged repairs to the property of the tenant were made, relative to the time when the alleged damage was actually incurred, raises a very serious doubt of the assumption of the liability by the company, and is rather persuasive of the contention made by the plaintiff herein that the pretended assumption resulted from the desire, after the commencement of the present action, to create the basis of a counterclaim to plaintiff’s action. At any rate, there is sufficient evidence in the case to warrant a logical inference of what is held by the court in the twentieth finding of fact.

There is ample evidence to support the twenty-first finding of fact, and, in view of what has heretofore been said, the conclusions of law herein set forth were fully warranted and justified.

The judgment of the lower court must therefore be affirmed.

By the Court'. — It is so ordered.

A motion for a rehearing was denied, with $25 costs, on October 20, 1925.