137 Pa. 203 | Pa. | 1890
The parties to this litigation own contiguous lots near the corner of Fourth and Arch streets in the city of Philadelphia. The plaintiffs in the court below own Nos. 70 and 72 North Fourth street. The defendant’s lot was No. 410 Arch street, which, extending beyond the corner lot owned by other parties, adjoined and formed the rear boundary of both the lots of the plaintiffs. On the backside of No. 70 there was a large privy well some thirty feet deep, and ten feet wide, to the use of which the defendant had a title which is not questioned, and to which he had access for himself and his tenants by means of an opening in the east wall of his building. Both parties were desirous to rebuild on their respective lots. Negotiations were had in regard to the privy well and the drainage for the new buildings, which resulted in an amicable arrangement by which Phillips was to surrender his right to the privy well, and permit the plaintiffs to fill it up and build over the ground. In exchange for the right thus relinquished, the plaintiffs were to provide Phillips with a suitable connection with the Fourth street sewer under the south side of their building. He was to build therefore a solid wall on his east line, with no opening in it, which the plaintiffs could use as a party wall in the erection of their block. This he did. The plan of the plaintiffs’ building contemplated the use of this party wall for their first floor, and a shortening of the stories above the first, so as to leave a recess or open area between the party wall and the upper stories some ten or twelve feet wide. Into this area it was agreed that Phillips might open windows in the party wall. So long as they were kept open he was not to ask contribution towards the cost of the wall. If the plaintiffs wished the windows closed, they were to give Phillips one year’s notice, and pay their share of the cost of the wall. This agreement was reduced to writing, at the instance of Phillips, and presented to the plaintiffs for execution. They made no objection to the contract as written, but delayed its execution until Phillips had completed his building, and then refused to sign it. They filled the well and built over it up to and against the party wall, but they refused or neglected to provide the sewer connection that was to take its place, and compelled Phillips to provide another connection with the sewer by a different route, and at a relatively large cost.
The learned judge who sat as a chancellor in this case made the decree asked for, treating the several stipulations that made up the general arrangement between these parties as severable and independent in their character. Such of them as were for the benefit of Phillips, and were to be performed by the plaintiffs, he left for a court of law to enforce in an action for damages ; but a stipulation which was found by the master to be part of the general arrangement, which was for the benefit of the plaintiffs, he enforced by a decree in equity. This we think was wrong. If the case presented was one for specific execution, the equities of both parties should have been protected. But we think the plaintiffs were in no position to ask equitable relief. They set out in their bill so much of the general arrangement as related to the windows in the party wall. The defendant replied, in substance, that the stipulatioñ on which the bill rested was but a part of an agreement made before the work of rebuilding was begun; that under that agreement he had surrendered his right to a privy well on the plaintiff’s ground, and erected a party wall with no opening in it on the first floor, against which the plaintiffs had built their new building; that, on the other hand, the plaintiffs had neglected and refused to keep the agreement on their part, and had neither provided him with a sewer connection, as promised, nor offered to make any substitute or compensation therefor. The report of the master showed the facts to be as alleged in the answer. The plaintiffs were thus found to be standing with both feet on their own broken promises asking a chancellor to compel Phillips to keep to the uttermost his promises towards them. But specific execution is not of right, but of grace; and he who seeks relief
The decree appealed from is now reversed and set aside, and the plaintiffs’ bill is dismissed; the costs in the court below and in this court to be paid by the appellees.
