First National Bank v. Taylor

| Iowa | Oct 18, 1876

Rothrock, <L

i. contbact: construction o£. I. It is difficult to obtain a clear understanding of the situation and manner of construction of the stairway from the record before us. This, how- . . , . ever, is not material, as we are called upon m determining plaintiff’s appeal merely to give a construction to the written contract of the parties in regard to the stairway and hall. It is not certain from the language of the decree that the court below had in mind the extent to which the defendant might use the stairway in question, but as both parties assume that the effect of the decree is to allow such use for ingress and egress to the second story of defendant’s building, we will so consider it here.

Counsel for plaintiff insist that as the contract provided ' that the stairway was to be used exclusively for ingress and egress to the hall, and as the hall loses its character as such by force of the decree, and the building of the partition wall, ■defendant’s right co any use of the stairway is concluded. We do not so understand the contract. It provides that “ the stair-case is to be used in common by both parties or their ■legal representatives as long as the building stands or is fit for occupancy.” This does not mean so long as the third story shall continue to be used as a hall, but so long as the building shall remain fit for occupancy. Then follows the limitation upon the common use: “The said stair-case to be used exclusively for ingress and egress to the hall.” We think this limitation should not, in view of the other provisions of ■the contract, be held to mean that the stair-case should only be used in common so long as the .third story should be used as a hall, but rather that the word hall is used for the purpose of designating the part of the building to which the common use of the stairs should apply.

It is next claimed that the common sise of the stairway does not extend to the second story, but only to that in which the hall was situated.

This position we believe to be correct. The provision as to the exclusive common use of the stairway necessarily excludes the common use as to the second story. There is no avoiding this conclusion. The contract calls it a stair-case, the answer of the defendant alleges that it is occupied and used as a stairway to the third story, and under the provisions of this contract we believe it to be the right of the plaintiff to inclose the stairway so as to exclude ingress and egress to the second story, if it has not always been so inclosed. This we are unable to determine from the record.

II. We have nothing presented to us showing that an appeal was taken by defendant, excepting the statement of counsel in his printed argument. This being the state of the record, we might well decline to examine the evidence as to whether the decree should provide that the wall should extend above the roof.

"We have, however, carefully examined the evidence, and are of the opinion, taking into consideration the large additional expense which would become necessary by interfering with the roof as now constructed, and the further fact that it is doubtful whether .there would be corresponding advantage in the rates of insurance, that the decree as to the wall is better for both parties as it now is, than it would be with the modification asked by defendant.

The decree of the Circuit Court is modified so far as to exclude the comm.on use of the stairway as a means of ingress and egress to the second story, and in other respects is affirmed. The defendant to pay costs.

Modified and affirmed.